Calculation of income to be taken into account in the award of legal aid
Income, relevant criteria
RULING Nº 46/08
23 of January of 2008
In the Portuguese legal and constitutional system, access to the law and the courts is not a mere entitlement to a social service but rather a fundamental right which is necessary for the practical implementation of legal protection, which primarily depends on criteria delimiting and conditioning the appraisal of the insufficient level of resources ("means testing") invoked by the applicant for legal assistance. By ignoring circumstances that make manifest a situation of insufficient resources capable of preventing access to the law and the courts, the mandatory stringent assessment of the "main household income" based exclusively on indicators and coefficients established in law, notably in order to determine the requisite amounts to meet the household's "basic needs", is an abusive and disproportionate restriction on this fundamental right.
The provisions which are the subject of this appeal have given rise to previous decisions by the Court, although the prescriptive aspect challenged at the time does not exactly coincide with the dimension which is at issue here. According to the decisions in question, the said provisions are unconstitutional in that they violate the right of access to law and to the courts. This right is secured for citizens with insufficient resources by means of legal aid, which is intended to prevent justice being denied for this reason to citizens wishing to defend their rights in court. In this judgment the review of constitutionality centres on whether the implementation of legal aid under the rule which the court in question failed to apply guarantees of access to the law and the courts for persons with insufficient means to pay for judicial proceedings, particularly the corresponding lawyer's and court fees. It is a case of verifying the "service provision" dimension of the fundamental guarantee on access to the law and the courts, which is reflected in the State's obligation to provide resources (such as legal aid) to prevent denial of justice for reasons of insufficient resources. According to applicable legislation, the provision of legal protection depends on economic factors and the financial capacity of persons who are objectively unable to afford the cost of a trial. The main income to be tested for the purposes of granting legal protection is the "household income", which includes the income of individuals who belong to the household of the person applying for legal aid. Practical assessment of the applicant's situation of insufficient resource is, in fact, now the exception, whereas under previous legislation, for instance, rebuttal of a legally established presumption of insufficient resources was subject to the proviso that the applicant had other sources of income, whether his or her own or those of third persons.
In view of this legislative change, according to the decision challenged, the norm (i.e. that deriving from the previous law, which had been adopted in the instant case) is now a rule which has been clarified by new legislation. A rule which had previously been open to appraisal of specific cases has become a closed rule that takes account solely of the economic and financial aspects, as the mathematical formula adopted clearly shows.
Therefore, the applicable legislation may fail to guarantee access to the law and the courts by allowing the possibility of refusing such access on the grounds of insufficient resources, to the extent that the main income for the purposes of granting legal aid is the total household income, whether or not the applicant has access to the income of any third person belonging to the same household. In fact, many legal aid applicants do not actually have access to the income of third persons belonging to their household. Furthermore, interests may diverge among the members of the same household, particularly in terms of the subject of the proceedings, and the legal aid applicant may wish to enjoy the right to secrecy of the defence of his/her legally protected rights and interests. The third person in question may also not be legally required to help the legal aid applicant to defray the costs.
The Constitutional Court therefore decides to declare unconstitutional, for breach of the right of access to the law and the courts, the rules subjected to review of constitutionality on the grounds that they necessitated rigidly considering the income of the legal aid applicant's whole household for the purposes of calculating its main income, without appraising the applicant's actual financial situation in accordance with his/her incomes and expenses.