A Practical Guide for Legal Aid funding in ECtHR cases

I am doing this article as a result of my ECtHR case (Chowdhury v UK (App No: 31428/18)) in which I needed to obtain Legal Aid for my client. It was a complicated process and one which was new to me and my colleagues. Some research was necessary in order to understand the practice process and procedure. I thought it would be helpful for future practitioners in the same situation to have this note to save time (a precious commodity in the legal world).

In order to obtain legal aid funding for your client in a case which has reached the ECtHR, a legal practitioner must make an application under Article 34 of the European Convention on Human Rights (ECHR) and in accordance with Rules 105 to 110 of the Rules of the Court.

Article 34 states that:

The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.

The President of the Chamber must grant permission for Legal Aid funding.

You have to show that funding is necessary for proper conduct. Access to legal aid is an important part of the right to a fair trial under Article 6 of the ECHR and Article 47 of the EU Charter of Fundamental Rights. The right to legal aid ensures effective access to justice for those who have insufficient financial resources to cover the costs of court cases, such as court fees or costs of legal representation.

Also, under Council of Europe (CoE) law, the European Agreement on the Transmission of Appli­cations for Legal Aid allows people who habitually reside in one State Party to apply for legal aid in civil, commercial or administrative matters in another State Party to the agreement.

Article 47 of the EU Charter of Fundamental Rights provides a right to legal aid to those who lack sufficient resources so far as this is nec­essary to ensure effective access to justice. The Article applies to proceedings relating to all rights and freedoms arising from EU law. The Explanations to the Charter[1] confirm that legal aid must be available:

“where the absence of such aid would make it impossible to ensure an effective remedy”

Filing in the Legal Aid Request Form

The Legal Aid forms can be requested in writing to the Registrar after the application has been communicated to the UK Government. Until the application has been communicated to the Government you cannot request the Legal Aid forms.

The form will comprise of:

The declaration of means must be completed within 4 weeks – the date of when to return this should be on the letter from the ECtHR.

The decision whether to grant Legal Aid or not

The written request for Legal Aid will be decided by the President of the Chamber who will determine having considered all the necessary documents (i.e rates, declaration and rules).

If the President accepts the request then Legal Aid will be granted and the Applicant and the Respondent Government (UK?) are informed.

The Registrar will submit a Claim Form and Expenses under the Legal Aid Scheme and a Bank Transfer Payment Form. The Applicant's representative should fill the forms and send them with written submissions on admissibility and/or the merits requested by the Court. The written submissions and representations must be to the Court before Legal Aid is granted.

The Legal Aid Agency will then issue the Applicant’s representatives with a Certificate of Indigence. The declaration of means must be certified by the Legal Aid Agency before the Certificate is issued. The Certificate is then sent to the ECtHR.

I hope this short guide helps those that get to the ECtHR, a true honoUr and unimaginable experience, one which may take a lifetime to get, and one which I will truly cherish and build upon.

[1] Explanations relating to the EU Charter of Fundamental Rights, OJ 2007 C303/17.