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Legal Digest of International Fair Trial Rights
that nothing in the file indicated that the domestic court was likely to impose a sentence in
excess of 18 months.662
In all cases in which the interests of justice requires to assign counsel, the accused is entitled to have a lawyer of experience and competence commensurate with the nature of the
offence, in order to provide her/him effective legal assistance.663 While a State cannot be
held responsible for every shortcoming on the part of a lawyer appointed for legal aid purposes, the mere fact of assigning free-of-charge counsel to represent a party to the proceedings does not, in itself, ensure the effectiveness of the assistance (See also 6.6.4).664Although
the conduct of the defence is essentially a matter between the accused and her/his counsel,
the competent national authorities are required to intervene if a failure by public defence
counsel to provide effective representation is manifest or sufficiently brought to their attention in some other way. 665
The right to free legal assistance is only expressly referred to within Article 14(3)(d) of the
ICCPR and Article 6(3)(c) of the ECHR, i.e., within provisions concerning the conduct of
criminal proceedings. The principle of equality of arms in presenting one’s case (See also
6.1.2) may require, however, that legal aid be provided in civil proceedings as well. In Steel
and Morris v the United Kingdom, for example, the applicants were respondents in a civil
defamation suit brought by McDonalds. They were unemployed and, despite the enormous
imbalance in resources between them and the large and high-profile legal team representing McDonalds, Steel and Morris were denied legal aid and were, therefore, obliged to represent themselves. The European Court of Human Rights held that the denial of legal aid
contributed to an unacceptable inequality of arms between the parties, thus violating Article
6(1) of the ECHR.666 In its General Comment 32, the Human Rights Committee has added
that the availability or absence of legal assistance often determines whether or not a person
can access proceedings or participate in them in a meaningful way (See also 2.1), and thus
encouraged States Parties to provide free legal aid in suits at law for individuals who do not
have sufficient means to pay for representation.667 By analogy to criminal proceedings, the
seriousness of the consequences of a civil suit, including the impact this might have on third
parties, such as children in family custody proceedings, will be important.
On the question of legal aid for appeal proceedings (See also 10.3.4), the existence of some
objective chance of success has been considered to be relevant to the question of whether
the interests of justice call for legal aid to be provided.668 The European Court of Human
662 Quaranta v Switzerland [1991] ECHR 33, para 33.
663 See also UN Basic Principles on the Role of Lawyers, adopted by the Eighth United Nations Congress on
the Prevention of Crime and the Treatment of Offenders, Havana, 1990, para 6.
664 Lagerblom v Sweden [2003] ECHR 28, para 56 and Kulikowski v Poland [2009] ECHR 779, para 57.
665 Lagerblom v Sweden [2003] ECHR 28, para 56 and Kulikowski v Poland [2009] ECHR 779, para 57.
666 Steel and Morris v the United Kingdom [2005] ECHR 103, paras 62, 67.
667 UN Human Rights Committee, CCPR General Comment 32 (2007), para 10.
668 Z. P. v Canada, HRC Communication 341/1988, UN Doc CCPR/C/41/D/341/1988(1991), para 5.4.
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