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Legal Aid for Legal Persons Legal aid for legal persons Themis 2016 International Judicial Cooperation in Civil Matters – European Civil Procedure Team Finland – Juha Palkamo, Hilla Viljamaa and Samuli Yli-Rahnasto 2(17) 1. Introduction This presentation will focus on considering whether, in respect of Article 47 of the Charter of Fundamental Rights of the European Union (2012/C 326/02, hereinafter ‘the Charter’), a legal person should be granted legal aid and if so, under which conditions. First, the paper will examine how the principles that arise from the Lisbon Treaty, the Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter ’the Convention’), the Charter and the case- law of the European Court of Human Rights (hereinafter ‘the ECHR’) and the European Court of Justice (hereinafter ‘the ECJ’) should be interpreted in light of this topic. Next, the paper will focus on the European perspective of legal aid. After that, the paper will give a quick overview of the history and basics of the current legal aid system in Finland. Finally, after the analysis of the essential case-law, the paper will finish with the conclusions. Under Article 47 (3) of the Charter legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice. The Article does not specify to whom free legal aid may be given. In European case-law and in the legal systems of European countries, there has been a variety of views on granting legal aid to a legal person. The right to free legal assistance is derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms, which came into force on 3 September 1953. Article 6 (1) of the Convention guarantees not only the right to a fair trial but also the right to effectively participate in the proceedings. The right to trial or access to a Court of Justice must be secured not only in principle but also in practice by ensuring conditions that enable everybody to have an effective access to court proceedings if necessary. Thus, it may also be required under Article 6 (1) to provide free legal aid to parties that are not accused of a crime. According to the basic requirements of a fair trial, the parties, regardless of their wealth and status, should have an effective opportunity to refer a matter to a Court of Justice and qualify for free legal assistance if necessary. These basic requirements safeguard fundamental human rights such as access to justice and equality of arms. 2. Charter of Fundamental Rights of the European Union The Treaty of Lisbon entered into force on 1 December 2009. The Treaty gave the Charter its legally binding status, bringing it up to par with the Treaties of the EU1. The Charter was proclaimed for the first 1 The Treaty of Rome is officially called the Treaty establishing the European Economic Community (TEEC). It led to the 3(17) time on 7 December 2000 and consolidated in 20122. Before its legally binding status the Charter already had an effect as a soft-law instrument on how general provisions and EU law were meant to be interpreted3. The Lisbon Treaty is the legal basis for the Charter. Article 6 (1) of the Lisbon Treaty states that the provisions of the Charter shall not extend in any way the competences of the EU as defined in the Treaties and that the rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter that set out the sources of those provisions. The Charter's Article 51 (1) concerns the principle of subsidiarity and states that the Charter must be taken into account when EU law is implemented4. Fundamental rights are part of EU primary law and, therefore, must "be respected when this body of law is applied by courts or authorities of the Member States"5. This applies to the rights of both legal and natural persons in the European Union. These are essential elements in understanding and interpreting the Charter. The Charter does not exclude legal persons from its scope. Hence the Charter guarantees the rights and freedoms of legal persons, such as companies, as well as natural persons. The Convention and the Charter are closely related. The Charter's Article 52 points out the difference between rights and principles. Article 52 (1) states that any limitation on the exercise of the rights and freedoms recognized by the Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the EU or the need to protect the rights and freedoms of others. This highlights the importance of rights and freedoms in EU law and how they should be taken into account. It also informs us about the prerequisites for limiting rights and freedoms. Guidance in the interpretation of the Convention can be found in Articles 31–33 of the Vienna Convention of 23 May 1969 on the Law of Treaties6. Based on the general rule of interpretation set forth in the Vienna Convention, the Convention should be interpreted in good faith in accordance with the founding of the European Economic Community (EEC) on 1 January 1958. The Maastricht Treaty is called The Treaty of European Union (TEU) and it was signed by the members ot the European Community on 7 February 1992. See more closely about the historical development of the EU in Rosas and Armati: EU Constitution law, Oxford, Hart Publishing, 2012, pp. 1-4 and 9-12 2 Mathijsen P. S. R. F.: A guide to European Union Law : as amended by the Treaty of Lisbon, 10th ed., London, Sweet & Maxwell, 2010, pp 25-26; and the Treaty of Lisbon Article 6 (1) 3 Rosas: Fundamental Rights in the Luxembourg and Strasbourg Courts, in Carl Baudenbacher et al. (eds), The EFTA Court: Ten Years On, Oxford, Hart Publishing, 2005, pp. 164-165 4 The ECJ has taken the Charter as a premise and directly applicaple source of law after the Lisbon Treaty. The Charter has been interpreted inter alia in the light of the Convention. See for example case Volker und Markus Schecke GbR and Hartmut Eifert v. Land Hessen, 9.11.2010 (C-92/09 and C-93/09). 5 Rosas and Armati: EU Constitution law, Oxford, Hart Publishing, 2012, pp. 164-165 6 See for example ECHR case Golder v. United Kingdom (21.2.1975, A 18) 4(17) ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. When we look more closely at how we should interpret the Convention and consequently the Charter, the following principles have been established by case-law of the ECHR. First of all, the ECHR stated in Soering v. United Kingdom7 that the Convention's text should be understood in its context and in light of its object and purpose, which is closely related to the principle of effectiveness8. The ECHR and other European institution have been reluctant to consider potential violations, but in the Soering case the ECHR made exception9. Secondly, in Airey v. Ireland10, the ECHR stated, concerning the principle of effectiveness, that the Convention is not intended to guarantee rights that are theoretical or illusory but rights that are practical and effective. Thirdly, terms should be interpreted independently (autonomous concept) if comparing the ordinary meaning of terms in the Convention to similar terms in domestic law leads to unsatisfactory or even impossible result11. It is also necessary to highlight that the ECHR has a dynamic and ever-developing way of interpreting the Convention when creating new case-law. This can be seen in the ECHR case Tyrer v. United Kingdom12, where the Court stated that the Convention is a living instrument which must be interpreted in light of present-day conditions. Fourthly, it is notable that the ECHR uses comparison of the laws and legal systems of Member States (comparative method) when the Convention is interpreted13. In the case of Tyrer v. United Kingdom the Court compared commonly accepted standards in the penal policy of the Member States of the Council of Europe to Isle of Man's standards and this led to a conclusion that the provisions of Manx legislation 7 7.7.1989, A 161 8 In para 87 the Court stated that ”in interpreting the Convention regard must be had for its special character as a treaty for the collective enforcement of human rights and fundamental freedoms (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 90, § 239). Thus, the object and purpose of the Convention as an instrument for the protection of individual human beings require that its provisions be interpreted and applied so as to make its safeguards practical and effective (see, inter alia, the Artico judgment of 13 May 1980, Series A no. 37, p. 16, § 33). In addition, any interpretation of the rights and freedoms guaranteed has to be consistent with "the general spirit of the Convention, an instrument designed to maintain and promote the ideals and values of a democratic society" (see the Kjeldsen, Busk Madsen and Pedersen judgment of 7 December 1976, Series A no. 23, p. 27, § 53).” 9 Zwart: The Admissibility of Human Rights Petitions : The Case Law of the European Commission of Human Rights and the Human Rights Committee, Netherlands, Martinus Nijhoff Publishers, 1994, pp.
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