Testing Requirements for Legal Aid in Court

How studiously must a court evaluate the facts and the law of a case to decide on an application for legal aid in court proceedings? The BVerfG decided this question on February 19, 2008 (re 1 BvR 1807/07).


The plaintiff turned against the denial of legal aid when suing the state of Hesse for official liability for “pain money (Schmerzensgeld)” and further damages due to being threatened with torture.

Following ruling case law of the Federal Constitutional Court, art. 3 I, art. 20 III GG call for considerable equal treatment of persons well off and unpropertied. It is constitutionally harmless to require that the proposed legal case has a substantial expectation of success and is not wanton for granting legal aid. However, testing the requirements of legal aid is not to replace a normal legal action. Legal aid aims enabling not hindering lower income persons to get justice in court just as the law so commands.

The principle of equality in legal protection is violated when a person applying for legal aid is denied in spite of the serious possibility taking evidence. Generally, proof must be taken when the arguments of plaintiff and defendant are so substantial that both could seriously be true. The result of hearing proof may not be anticipated.

Furthermore, difficult and unclarified factual or legal questions may not be investigated in superficial proceedings but only in the main proceedings. Ruling case law of the highest courts is not necessarily required but nevertheless, legal aid can be granted when such important questions are to be tried or when existing case law can solve the question.

The regional court clearly violated the above principles when it denied legal aid to the plaintiff.


Published on the old CMS: 2008/3/27
Read on the old CMS till November 2008: 2037 reads



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