Before we address the main issue, two preliminary points need to be made:
The first has to do with terminology: while French criminal procedure makes a distinction between assisting a party on the one hand and representing him through an agent on the other, it would appear that this conceptual distinction does not precisely correspond to the same reality in all the systems covered by this Report.
It should be emphasised from the outset that, to use French legal terminology[1], when, further on in this Report, we use the term ”assistance”, it will be to refer to the act consisting of counselling or advising a party and presenting his written defence, then, as the case may be, his oral defence before the Cour de Cassation; and when we speak of the “representation” of a party, it will be by reference to the appearance before the court of the person receiving from his principal the power to perform the various legal steps on his behalf: this is the authority to act (“mandat ad litem”), sometimes also referred to in French as “postulation”.
This terminological difference is also sometimes compounded by a problem arising from uncertainty as to the exact meaning the authors of the various reports on which this summary is based assigned to these two terms.
The second point has to do with numbers: twenty-one reports were submitted out of a possible total of twenty-five, generally of a very satisfactory standard, some of them truly excellent. Despite the diversity of the systems examined, all tried to adhere to the proposed framework for discussion.
It is this diversity and standard that the three authors of this Consolidated Report have sought to faithfully reflect.
First, we will set out the institutional framework of representation and assistance by examining the typology of the different supreme courts, then whether or not there is a bar of specialist lawyers; we will then go on to look at the mechanics of representation and assistance, noting the enormous range of models presented by the different reports, and also studying the particular case of legal aid; lastly, we will consider the overall situation, as it emerges from the different reports.
I – INSTITUTIONAL FRAMEWORK OF REPRESENTATION AND ASSISTANCE
We thought it would be interesting to draw up a list of the different types of supreme courts before going on to consider whether or not there is bar of specialist lawyers in the various legal systems.
A – Types of different supreme courts
The supreme courts studied struck us as heavily determined by the history and organisation of the States concerned and by the nature and scope of the supervision exercised by them, though it should be noted that in all cases criminal proceedings are recognised as a special case.
1 - Influence of history and national system of organisation
Before we discuss this topic, an important point needs to be made, as it crops up in a number of Reports: a founding text such as the European Convention on Human Rights and Fundamental Freedoms, and its application by the Court in Strasbourg, have obliged the old democracies to incorporate not just the principles set out in this text, but also the way it is interpreted by European courts, in their attempts to become better “impregnated” with this body of law; on the other hand, a number of the States having recently joined the Council of Europe directly incorporated into their domestic legal systems whole layers of this corpus of law laid down over fifty years or more. As proof of this influence of the ECHR, a number of new European States have from the outset provided, in their legal systems, for a procedure drawing the conclusions from the Judgments of the European Court in Strasbourg. France, an old democracy, only did so by a Law of 15 June 2000, and even then solely for criminal cases.
This said, it is almost a truism to state that the organisation of the different supreme courts, over and above the names and titles that vary from one State to another, is heavily determined by the history and organisation of the State concerned, particularly as regards whether it has a unitary or federal structure, but also as regards its conception of democracy.
Let is immediately illustrate this point about the influence the organisation of a State can have on its legal system by the example of Germany: The Basic Law of 1949 had envisaged a true supreme court, which never saw the light of day and which, through a constitutional amendment of 1968, gave way to five federal courts in five different cities, though none with its seat in Berlin or Bonn. Also, and this is a peculiarity that needs to be stressed, the Federal Constitutional Court in Karlsruhe, whose creation dates back to 1951, may “censure” any decision of the other “supreme” courts.
Nor does the United Kingdom have a uniform system of the sort found in other countries, the jurisdiction of the House of Lords extending throughout the United Kingdom in civil cases but only in England, Wales and Northern Ireland in criminal cases. It should be added that the conditions for the admissibility of appeals before the House of Lords vary depending on whether the appeal is lodged against a decision of the Court of Appeal of England and Wales, the Court of Appeal of Northern Ireland or the Court of Scotland.
Conversely, the Spanish Supreme Court, with its seat in Madrid, has jurisdiction nationwide in civil, criminal administrative and even military cases.
The Criminal Chamber of the Court, besides hearing appeals on points of law and appeals for judicial review, also has jurisdiction, under the Constitution, for investigating and ruling on cases brought against the Head and members of the government, the presidents of the two assemblies and the members of parliament, but also the Chief Justice and justices of the Supreme Court and Constitutional Court, as well as various senior justices.
Further, to compensate for the absence of the two levels of court in criminal cases, it was on the basis of Article 14.5 of the International Covenant on Civil and Political Rights of 19 December 1966 that the Spanish Supreme Court was granted quite broad jurisdiction to consider the validity and probative value of the evidence used in passing sentence; however, this jurisdiction does not permit it to reconsider the facts.
These three examples have been purposely chosen because they seemed especially revealing of the influence that history and the accession of a state to democracy can have on the organisation of the judiciary.
2 - Nature and scope of supervision
As regards the nature of the supervision, whatever the names or types of organisation, what forms the basis of the legitimacy of all our supreme courts is in all cases the supervision of legality, even if there are subtle differences from one country to another.
This is an appropriate moment to clear up a terminological point in order to remove any uncertainty that might weigh upon the remainder of our proceedings. For if, to simplify matters - given the diversity of names and titles - we have so far used the generic term “supreme courts” to denote what might otherwise be referred to as “higher courts”, and which would be more accurate semantically, it seemed to us that there was no State in the European Union that had a true “Supreme Court”, properly speaking, in the way this term is used in the United States, where that higher court has both the power to select which cases are brought before it, on the basis of the writ of certiorari, and the power to interpret the Constitution, which is not the case of any of the supreme courts in the European Union.
Extremely interesting in this respect is the situation of the Supreme Courts of Finland and Sweden, whose role is to create precedents and which themselves determine the admissibility of cases brought before them.
For example, the Supreme Court of Sweden, only allows cases to come before it when they are likely to lead to the establishment of a new decision, a new element of jurisprudence, which could serve as a reference for the other courts. The fact that the court of appeal, whose judgment is challenged, has made a legal error is thus not a sufficient condition for the Supreme Court to declare the appeal admissible. It should be noted, incidentally, that only 2% of appeals are deemed admissible by the Supreme Court of Sweden and, as proof that the system is satisfactory, the oldest cases only date back to the year 2000.
Realising the implications of this system, the State meets legal costs and expenses in order to encourage litigants to bring before the Supreme Court issues likely to create a precedent.
The situation of Sweden and Finland might perhaps be compared with that of the United Kingdom, where appeals before the House of Lords are admissible only when the court whose decision is challenged certifies that the decision concerned challenges a legal question of general interest, or if it seems to that court or the House of Lords that the problem is one of those that should be considered by the House of Lords. Accordingly, it is currently considering a number of cases involving human rights and tax questions.
Yet this is not so in Ireland, where the Supreme Court does not filter the cases coming before it at all, except in certain fields.
On the other hand, the Supreme Courts before which appeals are broadly allowed record considerably more inadmissibility rulings; this is the case in the Netherlands, where inadmissibility rates are some 60% in criminal cases and 40% in civil cases.
In any event, the situation of Sweden, Finland and the United Kingdom seemed interesting on two counts: first, because it is specific within the European Union; second, because it could serve as a framework for a future gathering of our association, as all supreme courts are looking for ways to reduce the number of appeals.
Let us return to the supervision of legality: it is this that is the basis of the legitimacy of the supervision exercised by all our supreme courts, even though, looking at those reports, it is clear that consideration of the facts is never very far away, especially in criminal cases.
This point calls for two remarks: the first, almost superfluous, is that when the supreme courts act as judicial review courts, they are clearly courts dealing with the facts; this is so, for example, in Germany, Austria, Belgium, France, Latvia and Lithuania.
The second remark concerns Spain, which is atypical in the European Union, and deserves to be considered for a moment: in fact, although the Supreme Court’s role, through the appeal on a point of law, is to provide for a uniform interpretation of the law, there are nevertheless two acknowledged exceptions to the rule that an appeal on a point of law only concerns legal issues. This is the case, first, if the sentence is based on evidence contrary to the Constitution.
Also, in general, where there has been a breach of the law - breaches of procedural rules apart - the Court has extensive powers, since it is its task to rule, by a separate judgment, on the merits of the dispute, yet without passing a heavier sentence than the one originally handed down.
More generally, on reading all the reports, it is clear that, in criminal proceedings, the divide between consideration of the law and consideration of the facts is never as radical as people say.
Turning now to the scope of the supervision exercised, there is a notable difference between two procedural systems: some adopt the principle of a more or less exhaustive list of cases open to appeal – which is generally (though there are subtle differences) the case of what might be termed “latin” countries, greatly enamoured of detailed, written law; while others, generally the common law countries (though here too there are subtle differences), prefer a system sometimes referred to as “discretionary”, in which the laws do not enumerate the cases open to appeal, confining themselves to describing the procedural machinery and leaving it for the courts to decide whether to admit an appeal or not depending on the significance the application presents for the law[2].
Nevertheless, the difference between these two systems is sometimes obscured by the fact that certain Roman law States, Belgium, Spain, Italy or France, employ a theory which strangles certain cases open to appeal: this is the theory which, in France, is called the theory of the justified punishment (“peine justifiée”) or “support légal” in criminal cases; on the basis of this theory, the Cour de Cassation may, though is not bound to, dismiss an appeal lodged against a decision containing a legal error when the sentence passed could in any event have been passed had the error not been made. The Court therefore rectifies the error, but does not censure the decision, as it considers that the sentence passed is “justified”, and that quashing the decision is immaterial to the appellant; it also avoids slowing down the procedure.
Similarly, and outside the field of criminal law, a certain “discretionary” power of the supreme courts “of written law”, particularly in France, may be linked to the practice of grounds raised ex officio or of dismissals, sometimes at the eleventh hour, thanks to the correction of onerous reasons.
3 – Special nature of criminal cases
The third constant revealed by an examination of the preparatory reports, over and above the particular internal setup of each supreme court, is that criminal proceedings are always recognised as being peculiar to themselves, that this feature concerns the organisation of the supreme court and/or the existence of specific procedural rules: in most countries, one or more chambers in the supreme court specialise in criminal cases; in Malta, however, there is a wholly dedicated court – the Court of Criminal Appeal – with exclusive jurisdiction in criminal cases, but which operates rather on the model of an appeal court than on that of a true Court of Cassation.
This peculiarity of criminal proceedings is also found in the existence of specific rules of procedure, which justify whether or not there are specialist lawyers or a specialised bar.
B – The existence or absence of a specialised bar
Whereas this comparative study of the organisation of the different supreme courts has so far been largely dominated by the similarities, it can safely be asserted that we are now entering an area where it is the differences that tend to prevail.
Indeed, the contrast between supreme courts with a specialised bar and those without seems not just radical but definitive.
1 – The absence, in the majority of cases, of a specialised bar
It may be stated straight away that States without such a specialised bar are in the majority; this is the case in Austria, Czech Republic, Estonia, Finland, Hungary, Ireland, Latvia, Lithuania, Netherlands, Poland, Portugal, Spain, Sweden and United Kingdom.
It should be noted that, in Ireland, the freedom of access of all litigants to the Supreme Court, while asserted as a principle, is beginning to cause problems, although it seems difficult to backtrack on the system now.
2 – The existence, in the minority of cases, of a specialised bar
On the other hand, only Belgium, France and Germany have a specialised bar.
In Germany, solely in civil and commercial cases, because they are considered to be “particularly difficult” areas, the parties are obliged to retain specialist lawyers, registered in a particular bar – that of lawyers at the Bundesgerichtshof; such lawyers have a monopoly as regards representing clients, pleading and making submissions before that Court. They are true professionals selected from experienced lawyers, whose number is not fixed by law but varies according to needs, and is currently 31, four of whom are women.
These lawyers may not practise before the other German courts with the exception of the Federal Constitutional Court (where, moreover, an individual may act on his own behalf), but may do so before the Court of Justice of the European Union and the European Court of Human Rights. They are, furthermore, obliged to reside in Karlsruhe.
On the other hand, contrary to the French system, any idea of an official “office” or appointment corresponding to the idea of a body of public officials is foreign to this specialised bar.
However, in other fields, and particularly in criminal cases, the litigant may freely choose his lawyer provided he is registered in a German bar.
This system is not exempt from criticism, since the five Chief Justices of the Supreme Courts have recently signalled that this situation was the underlying reason for setting aside as inadmissible four out of five appeals on points of law lodged in the field of labour law, social law, fiscal law or administrative law; these criticisms therefore seem to militate in favour of extending compulsory representation by specialist lawyers.
In Belgium and France, the specialised bar is made up of lawyers with an official appointment (officiers ministériels); numbering 20 in Belgium, they must have been members of the bar for 10 years, followed by a specialised training course organised by the Court, the Public Prosecutor’s Office and the bar, unless exempted from this owing to their strong reputation as a lawyer.
In France, there are 60 such lawyers, this figure, unchanged since the Order of 10 September 1817, now corresponding to the offices or posts that may be organised in the form of professional partnerships consisting of a maximum of three lawyers; there are thus currently 91 lawyers in the bar of avocats au Conseil d’Etat et à la Cour de cassation practising in this specialised bar. The nature of the public office (charge), a legacy from the Ancien Régime, gives the Minister of Justice the right to be informed of the successor to the avocat aux conseils when the latter transfers his office.
The conditions of access to the profession are more or less identical to those in Belgium; there is also the further requirement that they must have passed an examination demonstrating their professional aptitude, unless exempted.
3 – Particular cases of specialist lawyers in a non-specialised bar
Between these two types of organisation, certain States have opted, without going as far as the creation of a specialised bar, to reserve access to their supreme court to lawyers who are specialists: this is the case of Greece and Italy.
The Greek system seems especially original: indeed, for a lawyer to be able to plead before the supreme court, he must provide evidence of two successive periods of four years practising before courts of first instance then of appeal; also, the number of lawyers entitled to plead before the Supreme Court is limited to half that of the lawyers registered in the Greek Bar; this “registration”, or more accurately specialisation, is granted by the Bar after the potential lawyer has passed a professional examination and received a favourable appraisal of his abilities from the bar.
Once registered, the specialist lawyer enjoys a monopoly as regards representing and assisting the parties before the supreme court.
Italy finds itself in a situation which, without wishing to offend our Italian friends, it might be tempting to describe as ”à l’italienne”. For there is a specialised bar of lawyers who are registered on the special roll of the Bar Association of lawyers appearing before the senior courts, namely, the Conseil constitutionnel, the Conseil d’Etat, the Court of Cassation and the Audit Court. Yet the number of specialist lawyers is so high – 33,000 out of 155,000 Italian lawyers – that it seems rather contrived to conclude from this that there is a genuinely specialised bar...
Moreover, as the author of the Italian Report pragmatically observes, the number of “specialist” lawyers is so high that some of them only practise before the supreme court occasionally.
A variety of situations, but also stability and permanence in the types of organisation.
Indeed, and we will return to this later, the situations just described appear to function to the satisfaction of all, be they justices or lawyers; this is what explains the fact that no one seems to desire the creation of a specialised bar where it does not already exist, or its abolition where it does!
However, this assertion requires some qualification:
In Poland to begin with, the creation of a specialised bar has for some years been urgently called for. Yet the opponents of this system are afraid it may prevent access to the Court of Cassation by the least well-off because the amount of legal aid is too small to offset inequalities in the access to justice. Such a development would therefore appear to have no future at the moment.
Conversely, until 1974, Portugal had a system in which, without going as far as a specialised bar, only lawyers with over 10 years’ professional experience could plead before the Court of Cassation, though this system has since been abandoned.
The example of Slovenia might also be instanced, where the plan to create a specialised bar came to nought, or the Netherlands, where a working group proposed, among other things, the creation of a bar of specialist lawyers before the Supreme Court to improve its efficiency. Although a law promulgated in 1999 modified criminal procedure before the Supreme Court by, for example, introducing the obligation to file a written pleading, it did not adopt the proposal relating to specialist lawyers. However, the bars displayed strong reluctance on this score, arguing that lawyers have enough expertise to plead before the Supreme Court and that, in fields where they regard themselves as not sufficiently competent, they refer their clients to a specialist lawyer.
Stability then, but for how long? Won’t the enlargement of the European Union and freedom of movement – of lawyers[3] but also of offenders – contribute, as they have in other fields, to the harmonisation of national legislative systems and types of organisation?
How can the present systems of organisation remain unchanged in the face of the apparently irreversible trend towards the mutual recognition of judicial decisions within the European Union, whether in the civil field – in the wake, among other things, of Brussels Conventions I and II – or in the criminal field – with, particularly, the entry into force of the European arrest warrant?
It is clear that such a development will make it essential for all of us, justices as well as lawyers, to have a detailed knowledge of the legal rules, but also of the procedure, in force in the other States of the European Union; isn’t this an argument in favour of the specialisation of lawyers before the supreme courts?
A breach has very recently been opened up in France by the Law of 11 February 2004, transposing “European Parliament and Council Directive 98/5 of 16 February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained”[4].
As things stand, neither of these two texts applies to avocats aux Conseils, since Article 5 of the Directive expressly states that “in order to ensure the smooth operation of the justice system, Member States may lay down specific rules for access to supreme courts, such as the use of specialist lawyers”.
In this connection, it should be pointed out that neither the special nature nor even the monopoly of the lawyers in a specialised bar is called into question by the European Courts. Indeed, the European Court of Human Rights has recognised them on a number of occasions in relation to France, notably in the Voisine Judgment of 8 February 2000.
Likewise, in a Judgment of 25 February 1988[5], relating to Germany, the Court of Justice of the European Communities accepted that “admission to practise before the Bundesgerichtshof (Supreme Federal Court) is granted on the basis of selective admission to a specialised group of lawyers who have special experience or competence”.
It would thus appear that, where they exist, the specialised bars still have a bright future.
And it is on this optimistic note that we turn to the question which, in a way, is the counterpart of the previous one: that of the assistance and representation of the parties before the supreme court.
II – MACHINERY OF REPRESENTATION AND ASSISTANCE
When we consider this question, which lies at the heart of the theme chosen for this Conference, we are immediately faced with a difficulty which is not just terminological, but also, as we know, conceals fundamental distinctions regarding procedure.
A – A plethora of models
However, this does not mean that we will again find the previous distinction between ‘written law’ and common law countries; indeed, in a much more complex way, it must be acknowledged that our examination of the various preparatory reports has revealed a plethora of different models.
1 – Specialist third party or lawyer
Before certain Supreme Courts, not only is the appellant on a point of law not obliged to be assisted or represented by a specialist third party, but that specialist third party himself may take different forms, even though he will usually be a lawyer. Also, when compulsory, such participation may feature at various stages in the procedure.
To begin with, it may be required as soon as the application to appeal on a point of law has been lodged, in other words, when the appeal is formalised and registered; this sort of system may constitute a first filter, whose effectiveness will vary depending on how sophisticated the legal aid system is in the State concerned.
Second, this participation may be compulsory with respect to the preparation of the written pleading, when proceedings before the supreme court impose this formality on the plaintiff, without which the pleading will be deemed inadmissible, as is the case in France for example, in most civil – though not criminal - cases.
Third and last, the specialist third party may either represent his client in all or part of the proceedings, or only represent him in the hearings in order to put his arguments according to the distinction we made at the outset.
Hence, underlying this question of the participation of a specialist third party, who is usually a lawyer in criminal cases, is also the question of the place granted to the parties before the supreme court and, more generally, that of the rights and guarantees granted to them.
In fact, States in which representation and assistance are compulsory before the supreme court are ultimately a very small minority.
This is currently the case of Austria, Portugal and Italy, where this requirement would nevertheless not seem to limit the number of appeals, owing apparently to the substantial number of specialised lawyers who may appear. A legislative reform currently being implemented will extend the participation of the specialist lawyer to criminal proceedings.
2 – Specialist or non-specialist lawyer
Then there is a second group of countries which only lay down compulsory representation and assistance in certain fields or - another variant – in laying down whether or not compulsory assistance and representation are compulsory, only stipulate the participation of a specialist lawyer in certain fields.
This is so in Hungary, where representation of the parties by a lawyer is compulsory in both civil and criminal proceedings; in civil cases on the other hand, the appellant may also be assisted by a professional jurist (legal counsel).
The situation is exactly the reverse in Germany, where representation and assistance by a specialist lawyer are compulsory in civil cases, which also include commercial cases, as we saw earlier; in criminal cases on the other hand, as before the other four supreme courts, every lawyer registered with a bar may represent and assist the parties.
The monopoly granted to specialist lawyers in civil and commercial cases is justified by the technical expertise required and the role of filter they are able to perform. They do so by virtue of the opinion they may give on the appeal’s chances of success, the result being that a negative opinion is followed, in 25% to 30% of cases, by withdrawal of the appeal. Later, when the actual appeal is considered, the quality of the work done by the specialist lawyer indubitably contributes to the speed of the proceedings on a point of law – the average length of proceedings on a point of law before the Bundesgerichtshof is one year, and appeals declared inadmissible are rare, contrary to the situation before the other supreme courts, where four out of five appeals are certain to fail, owing, precisely, to the large number of inadmissible cases.
In Austria, however, there has been a case where a specialist lawyer did not perform the role of filter expected of him, several hundred appeals on points of law being the result.
In France too, representation and assistance are compulsory in principle, apart from certain areas – including criminal cases. The need for prior consultation on the chances - and the risks – of appeals is an ethical obligation on the avocat aux Conseils, which is part and parcel of his status, and which is frequently used to justify his function.
In Finland, on the other hand, the parties may conduct their own defence before any court whatever, even though, in most cases, the least complex included, they seek the advice of a professional. Since 2002, representation of a party before a court has been made subject to the holding of a law degree, except where a close relative is involved. The purpose of this reform was both to protect the parties and to reduce the number of appeals certain to fail.
It was a similar concern that prompted the Netherlands to reserve the right to represent a party exclusively to lawyers, without exception, which, however, does not prevent parties from conducting their own defence. Moreover, it should be noted that, although prior consultation of a lawyer is not laid down by legislation, in practice it frequently happens that, before bringing a case before the supreme court, a party requests a lawyer for a consultation on his appeal’s chances of success and, in some cases, abandons it thereafter.
In Ireland too, the possibility for appellants to conduct their own defence is broadly accepted and, contrary to what is found in other countries, the statistics show that the number of persons availing themselves of this possibility has considerably increased in recent years. A person conducting his own defence may be accompanied by a friend, who takes notes and offers advice.
A rather similar system exists in the United Kingdom, going by the name MacKenzie friend. The MacKenzie friend assists the party, yet cannot address the court. Only a barrister and, in certain conditions, a solicitor, may represent a party who does not wish to conduct his own defence.
In Latvia, the parties may be represented, in civil cases, by a lawyer or by the official representative of a legal body (in cases concerning it), by the employees of public or municipal bodies so entitled or by a party to the proceedings given authority to do so by another party. Since a judgment of the Constitutional Court of 6 November 2003, the parties may also be represented by a judge, a prosecutor, a doctor of law, a non-State organisation specialising in legal assistance, or a public body providing free legal assistance, or by any other person with a high level of legal training. In criminal cases on the other hand, only a lawyer may represent a party.
Lastly, the participation of a lawyer, though not a specialised one, is also required in most other systems: this is the case in Belgium, in Estonia – before the supreme court in criminal cases, the new Code of Criminal Procedure, due to enter into force on 1 July 2004, reserves the monopoly on representing the parties for lawyers – and also in Poland.
Particularly noteworthy is the situation in Lithuania - where it is the appellant’s personal situation (legally incapable persons, persons held in custody) or the severity of the sentence incurred or passed that makes the participation of a lawyer compulsory – and in the Czech Republic, where the participation of a lawyer is compulsory for filing the appeal on a point of law, but in the ensuing procedure is so only in certain fields, either as determined by the sentence handed down or the personal situation of the accused (minors, legally incapable persons, persons in policy custody or admitted to a medical establishment, persons charged who are serving sentence or deceased).
The fact that these different systems co-exist raises questions not only as to their relevance but also as to how far they comply with the requirement of the right of effective access to a tribunal laid down by the European Convention on Human Rights.
3 – Appellant or representative
The European Court of Human Rights has had to deal with three types of questions on this subject: the compulsory intervention of a lawyer, whether a specialist or a non-specialist; the compulsory use of a specialist lawyer; the option for the appellant appearing in person to do so without a representative.
In the case “Gillow v. United Kingdom”, the Court ruled that the obligation to retain a lawyer in order to address a higher court complied with the principle of right of effective access to a tribunal[6].
However, having accepted that national legislations could thus control or limit access to higher courts, the European Court of Human Rights at the same time made sure that guarantees were given to litigants who, by choice or for some other reason, were neither represented nor assisted by a lawyer.
This is why, in the wake of the Reinhardt and Slimane-Kaïd Judgment[7], delivered on 31 March 1998, it granted the criminal appellant, who was not represented[8], the right to be notified of the tenor of the submissions of the avocat général and to respond to them in writing, and pointed out that the fact that the applicant had not requested legal aid to enable him to be represented by an avocat aux conseils did not mean that he had “waived the right to the guarantees of adversarial process”. (para. 32 of the Voisine Judgment and para. 51 of the Meftah and Others v. France Judgment).
However, dissociating representation from one of the principal attributes of assistance, namely the oral arguments (“plaidoirie”), the Court in Strasbourg did not go so far as to acknowledge that the criminal appellant, and especially the person convicted, has the right to defend himself by putting his own case before the Cour de Cassation in person, bearing in mind that litigants do not “plead” as such before this Court, but after being so authorised by the Chief Justice, confine themselves to brief oral comments.
As the Court stated in its Voisine Judgment of 8 February 2000, “it is clear that the special nature of proceedings before the Court of Cassation may justify specialist lawyers being reserved a monopoly on making oral representations” (para. 33), a “reservation”, it added in the Meftah and Others v. France Judgment already referred to[9], which “does not deny applicants a reasonable opportunity to present their cases under conditions that do not place them at a substantial disadvantage” (para. 47).
The Court then went on to rule in the latter Judgment that “having regard to the Court of Cassation’s role and to the proceedings taken as a whole (…) the fact that the applicants were not given an opportunity to plead their cases orally, either in person or through a member of the ordinary bar, did not infringe their right to a fair trial within the meaning of Article 6” (para. 47).
Hence, in these French cases, the Court in Strasbourg has never challenged the existence of a specialised bar of avocats aux Conseils.
Lastly, it is interesting to note that, clearly taking into consideration the arguments favouring compulsory assistance and representation before supreme courts, the justices at the European Court in Strasbourg, having accepted the principle of the need for appeals to be filtered and the associated procedures, subsequently sought to provide the litigant conducting his own defence with corresponding guarantees, at the same time, by a skilful balancing act, ensuring that the rights thus recognised were confined within reasonable limits.
The subject of the rights granted to parties in cassation proceedings cannot be dissociated from the sometimes taboo question of the lawyer’s fees and the efficiency of the legal aid system.
It should, however, be noted that, in this respect, Sweden has a most original system, which stems from the prevailing view there of appeals to the Supreme Court.
B – The specific case of legal aid
Here too, the situation is characterised by a great diversity of situations, determined by the following two parameters: one, how sophisticated the legal aid system is and two, how and in what form the legal aid is granted, particularly as regards whether there is a means test.
Lastly, a highly topical question in Europe at present is whether it is possible to limit access to the court by first ascertaining the seriousness of the point(s) of law on which appeals are based, above all when such an appraisal is entrusted to an administrative body.
1 – Basic condition: presence of absence of an income ceiling
A number of systems have a legal aid office responsible for considering applications filed by litigants.
A system using a scale determined by the amount in issue exists in Germany, the same justices at the Bundesgerichtshof consider the merits of applications for legal aid, appoint the lawyer chosen by the party, and subsequently consider the merits of the actual case.
As a rule, decisions by this body not to grant legal aid can be appealed; this is also the case in Belgium, Italy and France; and in France, the appeal is brought before the Chief Justice of the Cour de Cassation.
But over and above this diversity of situations, it is also interesting to consider this question from the angle of the effective right of access to the supreme court.
2 – A further condition: the arguable ground of appeal
When it comes to committing public money, it is not without good reason that certain legislations should have made provision for a filtering system, relating among other things to the requirement of the serious ground, for deciding the granting of legal aid.
This is the case in Belgium, Poland, and France, where this situation has given rise to a number of judgments by the European Court of Human Rights, particularly in the “Gnahoré v. France” case of 19 September 2000.
The situation in Italy here is interesting: while there is no requirement of the arguable ground in criminal cases, in civil cases, on the other hand, not only is there such a requirement, but the arguable ground is considered by a lawyer, whose decision may be challenged before the court.
3 – The arguable ground and the European Court of Human Rights
In the Judgment in the case of Gnahoré v. France, the European Court, after noting that the requirement of an “arguable ground of appeal” was “undoubtedly inspired by the legitimate concern that public money should only be used for legal aid purposes for appellants to the Court of Cassation whose appeals ha[d] a reasonable prospect of success” (para. 41), explained that “the system established by the French legislature offer[ed] individuals substantial guarantees to protect them from arbitrariness” (para. 41). It finally submitted that the rejection of an application for legal aid for want of an arguable ground of appeal, in one case - educative assistance - in which representation by an avocat aux conseils was not compulsory[10], did not prejudice the actual substance of the applicant’s right to effective remedy before a “tribunal”.
Meanwhile, however, the European Court would appear to have accepted, in all cases - not just the ones not requiring representation - the filtering or screening of the reasonable or arguable ground (moyen sérieux)[11] laid down by French law.
This decision was strongly criticised, foremost among its critics being the minority judges in the Del Sol and Saadi cases, who stigmatised the clear “discrimination” against the least well-off litigants, the only ones to be subjected to a preliminary examination to assess the reasonableness of their appeal. In this connection, the judges emphasised that the argument relied on by the French Government, i.e. the need to filter or screen appeals, had become redundant, as Article 27 of the Loi organique of 25 June 2001 gives the Cour de Cassation, ruling as a bench of three justices, the option of disallowing appeals that are inadmissible or not founded on an arguable ground, and does so for all litigants moreover. The two judges forcefully submitted that: “Quite apart from the liberal approach ushered in by the Airey v. Ireland case (9 October) in 1979, we believe the time has come for the Court to proceed further along the path to full and complete recognition of access to the law, and hence to justice[12], for the least well-off”.
It is also true that, in the case of France, as explained, the monopoly of the avocats aux Conseils is not absolute, since although it excludes the participation of the avocats aux barreaux, it does accommodate the presence of the appellant in person, who may set out his arguments in a written pleading which must be signed by him and filed within a certain time-limit, or will be declared inadmissible.
III – SITUATION OVERALL
The comparative approach adopted has enabled us, first, to make a basic observation and second, to reveal a “paradox”.
A – The basic observation
The basic observation first: There would appear to be no clear link between the way a particular supreme court operates and whether or not there is a specialised bar with a monopoly over representing and assisting the parties in appeal proceedings.
Among the arguments put forward to justify the existence of a body of specialist lawyers or specialised bar, they are often said to contribute to the filtering of cases, given that such lawyers have detailed knowledge of the technique of appeals on points of law (‘cassation’) and of the case-law of the supreme court enabling them to identify the relevant precedents and to invoke them advisedly.
And in systems where there are no specialised lawyers or bar, this filtering process is sometimes performed by the court itself, as is in Finland and Sweden.
In Finland, where bringing a case before the Court is subject to a decision of admissibility delivered by the Court itself, the Supreme Court has for a good twenty years now operated by precedent. Throughout that period, it has been debated whether lawyers appearing before it should be required to have special expertise, certified by an examination. The Board of the Finnish Bar Association rejected this idea, as did a report by a commission specially set up by the Government; it was therefore agreed that, as lawyers’ training was to be improved and better supervised, there was no need to create a special category of lawyer at the Supreme Court; it was also alleged that the creation of specialised lawyers would only increase the cost of proceedings.
Likewise in Sweden, when, in 1971, the law limited the role of the Supreme Court to the creation of precedents, it would have been natural to raise the problem of specialised lawyers before it, but this did not happen. Yet practice shows that a person conducting his own defence without a lawyer is at a disadvantage. The Court therefore allows for the fact that the appellant does not have a lawyer when ruling on the admissibility of appeals, as it is hard for it to create a precedent unless it can rely on sound legal arguments.
In this situation, the absence of specialised lawyers is an obstacle to the consideration by the Court of cases which, however, might have given rise to judgments raising interesting or novel legal issues.
Yet it is also true that, if representation by a specialised lawyer were made compulsory, the number of appeals would certainly fall, though the proportion of them that would be declared admissible would increase correspondingly.
There is currently a debate in Sweden on the possibility of combining such a reform with new rules for the granting of legal aid, the idea being that, when an appeal on a point of law is declared admissible, it is the State rather than the parties that should shoulder the cost of developing case-law.
However, in general, the comparative approach we have sought to adopt will also have revealed what might seem like a paradox.
B – The “paradox”
In fact, on the one hand, almost all systems make representation by the parties before the supreme court compulsory, the principle and procedures of which are accepted by the European Court of Human Rights; but on the other hand, in very few systems is this task, sometimes as a monopoly, entrusted either to a specialised bar or to lawyers who, while not registered with a specific bar or constituting a special bar, are themselves specialists.
Clearly, we need to ask what the reasons are for this situation.
A priori, they are hard to ascertain, determined as they apparently are neither by the size of each country nor by the number of lawyers practising in it, nor, more generally, by the prevailing idea of the application for review, which, as this rapid summary of the different systems has shown, is everywhere based on a legal remedy.
Yet we also know that, virtually everywhere, and with varying degrees of success, procedures have been put in place aimed at limiting the number of appeals brought before the supreme courts in the face of the tide of appeals flooding in, sometimes almost overwhelmingly, and which the existence of specialised lawyers may, for the reasons set out, help to contain.
This is probably why, in the debate on ways of curbing the number of appeals, not only is the monopoly enjoyed by specialised lawyers not questioned, but calls are sometimes made for it to be extended in a sort of “objective alliance” between judges and lawyers, with the sole object of improving the quality of the decisions rendered and, more generally, of justice, by ultimately giving full rein to the adversarial principle.
Hence, besides the two arguments traditionally used to justify either the existence of a monopoly on representation of the parties before the supreme court, or the existence of a specialised bar or specialised lawyers, and which invoke the special expertise of specialised lawyers and the specific technique of the appeal on a point of law, there is a third argument associated with the uniform filtering of the appeals.
This is writ large in the Report prepared by the Chief Justice of the Court of Cassation of Belgium, according to whom the disappearance of the present monopoly would have various drawbacks associated, for example, with the reduction in the cases filtered, a lower standard of written pleadings (‘mémoires’), uncertainty about fees, as well as the costly compensation payable for official posts which would thus be abolished; however, this argument does not exclude the fact that the author of the report says he favours a debate on the reorganisation of the judiciary, which would enable it to take in more young lawyers, also making it possible for lawyers over 70 years of age to continue practising.
In Italy, a reform has been proposed aimed at reducing the number of lawyers – there are currently 33,000 – who are specialists before the Court of Cassation.
Conversely, there are arguments favouring the rejection of specialisation:
The Report by Greece, as an obstacle to the establishment of a bar of specialist lawyers, instances the long-standing quota system permitting lawyers to appear before the Supreme Court and also the large number of lawyers registered in the bar (18,000 in the Athens Bar alone).
In the Czech Republic it is the relations between client and lawyer to which importance is attached, based above all on trust and, the author of that Report writes, on the fact that “this trust not only presupposes professional know-how but also certain personal qualities in the lawyer. From this angle, i.e. trust, the right to choose a lawyer cannot be curtailed”.
However, the situation in Ireland reveals that, in systems that give precedence to the principle of free access to justice, the absence of a lawyer, and curiously of a specialised lawyer, can sometimes be a handicap for the litigant.
Parties who defend themselves are not, in fact, familiar with the procedure and are seldom capable of presenting their arguments in rational, legal terms, with the result that their case often becomes bogged down and that they rarely obtain satisfaction, despite the help and advice they generally receive from the court. The upshot is extra work for judges and legal staff, though this is a necessary consequence of the importance attached to free access to justice.
Conversely, yet without going so far as to advocate the creation of a specialised bar, the Report by Spain points out that, as the State Counsel’s Office specializes in proceedings before the criminal chamber of the Supreme Court, this situation causes flagrant inequality as regards the mastery of the technique of lodging an appeal on a point of law as between the public prosecutor and the defence, to the disadvantage of the latter. As a remedy, the Report suggests that certain conditions regarding qualifications and seniority should be imposed on lawyers representing parties before the Supreme Court.
Ultimately, should we not ask, brutal as it may seem, whether controlling the exercise of appeals on a point of law, through the various techniques with which we are all familiar, is not, in the final analysis, a greater guarantee of the litigant’s rights than no limitation at all?
To echo a comment in the Report by Germany, one perhaps wonders whether it is not true that “guarantee of access and equality of access to the Supreme Court are often a blind alley”?
“Procedure, twin sister of liberty”, as J. HERING, an eminent German jurist, said long ago.
However, it must not be forgotten that procedure is merely a way of ensuring that the law triumphs and that by sheltering too much behind procedure, justice risks failing in its mission.
Paris, 5 March 2004.
Renée Koering-Joulin,
Conseiller à la Cour de cassation.
Pascal Lemoine,
Christophe Soulard,
Conseillers référendaires à la Cour de cassation.
[1] R. Perrot, “Droit judiciaire privé”, Dalloz, 2001, No. 506, p. 432.
[2] J. Pradel, “Droit pénal comparé”, Dalloz, 2001, No. 495, p. 624.
[3] As a result of the entry into force of European Parliament and Council Directive 98/5/CE CE of 16 February 1998.
[4]O.J. No. L 077 of 14 March 1998, p. 36.
[5] Case 427/85, Legal Reports, 1988, p. 1123.
[6] Case of Gillow v. United Kingdom, 24 Nov. 1986 (A. 109, para. 69).
[7] A solution reaffirmed for example by the Judgment in the Slimane-Kaïd case No. 2 (27 November 2003) which, differentiating itself from the ruling in the Kress Judgment (7June 2001), stated that the “presence” (not the “participation”) of the Government Commissioner in the deliberations of the Conseil d’Etat was contrary to Article 6.1 (para. 20).
[8] Voisine, 8 February 2000; Meftah and Others, 26 July 2002.
[9] Adde Richen and Gaucher, 23 January 2003 and Duriez-Costes, 7 October 2003.
[10] It said the opposite in the Aerts v. Belgium Judgment (30 July 1998) but “the fact that Mr Aerts was required to have legal representation was decisive” (para. 41 of the Gnahoré Judgment).
[11] Cf. déc.rec.partielle Kroliczek v. France, 14 September 2000, Application No. 43969/98 (BAJ of the Conseil d’Etat).
[12] Cf. Along these lines, Article 47 (3) of the Charter of Fundamental Rights of the European Union, which states: “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”.