CEU Electronic Theses and Dissertations, 2013
| Author | Chicu, Mariana |
|---|---|
| Title | The right to legal aid in non-criminal matters through the glance of the human rights rationale |
| Summary | The present research seeks to identify a theoretical justification for the right to legal aid in non-criminal matters by placing the concept of legal aid within the remit of the human rights rationale. It was assumed that one of the modern justifications of the civil legal aid that gives an expansive approach stems from the human rights rationale. Before revealing and elaborating on the above mentioned theoretical assumption the project starts with an incursion into history in order to highlight how and why legal aid appeared and which social factors and actors stood behind this institution. Then the research proceeds with the identification of the answer given today to civil legal aid by the so-called century of human rights. The analysis of Chapter two is first taken into a review of different legal principles, which are found in the international human rights law, but also in the national systems that either expressly or through means of interpretation, underlie to some extent the state’s duty to provide legal aid in non-criminal matters. Reference has been made to the principle of rule of law, equality and fair trial. From the viewpoint of these principles legal aid serves as the basis for individuals to avail to the law and justice and seek observance and enforcement of their rights. It has been argued that one of the justifications for the provision of civil legal aid stems from the states’ commitment to these principles. Then the chapter goes on in considering binding and non-binding documents of the United Nations, Council of European and European Union that expressly provide for a state obligation to ensure legal aid in non-criminal matters or those that bear a premise for such an obligation. Chapter three continues with an examination of the content of the state obligation to provide civil legal aid and the extent to which international human rights law requires states to provide such aid. The analysis is based on the relevant legal aid standards and criteria developed in the case-law of the relevant United Nations bodies, the European Court of Human Rights and the European Court of Justice. These bodies went considerable way towards securing a basic state duty to provide for a right to legal aid in non-criminal matters though, in a limited way. One should remember that international human right norms introduce minimum standards and thus, states have discretion in adopting rules concerning legal aid in non-criminal matters. The human rights rationale can serve as a starting point for any government aiming at creating or transforming an existent legal aid scheme into a modern one based on the human rights considerations. Finally, Chapter four examines the three legal aid schemes created based on the human rights considerations in Bulgaria, Georgia and the Republic of Moldova. The analysis of the domestic transformations in the field of legal aid points to the direct link between the theoretical assumption of this project and the reality. The review of the three legal aid schemes affords an interesting view on the perspectives of legal aid in general and civil legal aid as by-product of the human rights rationale. This approach gave birth to a new model of legal aid schemes called “consumerist type”. The three analyzed legal aid schemes fall within the ambits of this model. In all three jurisdictions the analysis points to a number of common elements, the most important of which is the fact that it focuses on the individual that allows for an extensive approach when it comes to various elements of the scheme such as eligibility criteria, legal services covered by the scheme, legal providers, etc. Now the inherent limitations of the right to civil legal aid that stems from the old visions of charity and formal equality disappear. Of course, the achievement of the goals of any type of legal aid schemes is influenced by a number of factors, but the ideological vision behind the schemes will influence the content and the extent of the schemes and will persist and determine their overall direction. The answer given by the human rights rationale to the institution of legal aid in non-criminal matters is extensive and views civil legal aid as a self-standing right. |
| Supervisor | McBride, Jeremy |
| Department | Legal Studies DSc |
| Full text | https://www.etd.ceu.edu/2013/chicu_mariana.pdf |
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