Free Legal Aid, Theory, Legal Basis and Practice. European Standards

Introduction

In a world where more and more areas of life are covered by legal regulations, it is necessary to have legal solutions that would help navigate through specific legal systems and support the exercise of rights guaranteed by law. The point is not only to support professionals operating in political, economic or social business environment, but also to help anyone who has to shape their relations based on the law. In the latter context, the issue of free legal aid is of utmost importance. The response to contemporary challenges that result from complex law regulated mechanisms is the institution which allows people whose actual situation is indeed difficult (including those with low income, those in complicated life situations, those excluded from society due to certain character traits, or those who are discriminated) to effectively claim and protect their rights.

The ratio legis of free legal aid is to provide free access to legal advice at local level in order to eliminate the financial barrier in using professional legal services that exists in many countries. For this reason, the issues associated with pre-trial free legal aid should be analyzed in the context where human rights are an instrument for effective assertion of freedoms and rights, especially the right to a fair trial, the right to defence, the right to challenge judgments, the right to information, the principle of social justice and the principle of equality. This issue is particularly important for direct providers of free legal aid: legal profession practitioners, NGOs, as well as the public administration units participating in the implementation (coordination) of this task, as well as central bodies responsible for the administration of justice.

The social importance of the issue of free legal aid and its various aspects, as well as its relevance in the context of human rights protection standards, have become the basis for a group of researchers from various research centers in Poland and European countries to conduct research on this phenomenon in relation to theoretical issues, and practical aspects.

The foundation of the conducted analyzes was to consider what are the existing standards that pertain to the subject, as well as to recognize whether, at the present stage of scientific discourse and practice, free legal aid may be considered an element of the right to a fair court procedure. In addition, comparative legal research was supposed to trigger a reflection on the optimal model of the free legal aid system, including its relationship with the state, local government, professional local governments performing tasks in the field of legal aid, as well as NGOs.

The authors set the following research goals:

1. 1. to define the concept of free legal aid, taking into consideration the standards of the Council of Europe (especially those resulting from the European Convention on Human Rights and soft law standards) and the Charter of Fundamental Rights of the European Union;
2. 2. to pinpoint solutions in the field of free legal assistance on the example of the analyzed countries: Belarus, Denmark, Spain, Germany, France, Italy, Norway, Ukraine, Poland, Switzerland, Sweden, Hungary.

The research results made it possible to prepare a monograph in which the individual authors focused on the following areas:

1. 1. theory of free legal aid, in particular attempting to systematize the existing definitions of this concept; they also pointed out the relationship between free legal aid and education in the field of law, including the impact that teaching law has on shaping certain social attitudes and respect for the law;
2. 2. Polish legal solutions regarding free legal aid and practices associated with the functioning of this system; it should be emphasized that most of the authors of this part participated in shaping the normative content of the free legal aid system in Poland and the standards related to its application, including prof. I. Lipowicz (Ombudsman from 2010 to 2015); retired TK judge prof. M. Grzybowski or retired Supreme Court judge prof. J. Sobczak;
3. 3. comparative legal solutions concerning both international and local human rights protection standards (the monograph takes into account the case law of the European Court for Human Rights Protection), as well as regulations and case law of selected European countries that have experience in the field of free legal aid.

The conducted research was based on several research methods. Primarily, the logicallinguistic method was used, that facilitated determining the applicable legal norms and the legislator’s will (intention) to regulate the specific, socially important state of affairs. Also, an analysis was undertaken of generally applicable legal norms of international acts and national legislation, as well as reports and information submitted by legal control and protection authorities, and legal opinions as well as recommendations regarding the provision of free legalassistance.

In order to get to know the institution of free legal aid more fully and to demonstrate solutions in the field of free legal aid – the comparative-legal method was used. This allowed to emphasize a broader perspective of the discussed considerations than the exegesis of Polish solutions alone (legal and comparative remarks on the example of several countries: Belarus, Denmark, Spain, Germany, France, Italy, Malta, Norway, Ukraine, United Kingdom, United States of America, Poland, Switzerland, Sweden, Hungary).

The historical-legal method was also applied, which made it possible to discuss the process of creating statutory regulations regarding the law on free legal assistance, including the assistance provided at the pre-trial phase.

The method of institutional analysis was also used, i.e. researching broader sources of law, that extends the traditional law researching approach by elements that enable empirical understanding of the reasons for the creation of specific legal norms as well as the socio-economic effects of their functioning.

The proposed publication is a comprehensive study on free legal aid in terms of comparative law. It deals with theoretical and practical issues that constitute a source of knowledge about the shape of legal aid in individual countries. It is also an inspiration for entities creating and applying the law to find the optimal model of free legal aid. It is composed of two volumes. In the first one in on general remarks about free legal aid and Polish solutions. The second volume describes comparative approach of the free legal aid.

This book was prepared in particular as part of the activity at the Centre for Foreign Laws of Jan Długosz University in Czestochowa and cooperation with Cardinal Stefan Wyszyński University in Warsaw.