Séance du jeudi 8 novembre 2007 (matin) Meeting of Thursday 8 November 2007 (morning)
La séance est ouverte à 9 h 45 sous la présidence de Mme Kurucz (Hongrie), Mmes Degeling (Bureau Perma-nent) et Borrás (Espagne) étant co-Rapporteurs.
Article 3, paragraphe (c) / Article 3, paragraph (c)
1. The Chair recalled that the previous day there had been a general discussion on the cost-related Articles of the revised preliminary draft Convention. She stated that today the discussion would move on to the separate Articles in this area that remained outstanding, starting with Article 3, paragraph (c), the definition of legal assistance. She noted that the present definition, found in square brackets in the preliminary draft Convention, was based on a working doc-ument submitted by the delegations of New Zealand and Australia during the last Special Commission meeting and worked on by the Drafting Committee. She recalled that the proposal had received wide support and she noted that this definition of legal assistance gives the rationale and aim of legal assistance and, in the second sentence, provides that this includes assistance such as legal advice, assistance in bringing a case before an authority, legal representation and exemption from costs of proceedings. She stated that these were examples of legal assistance and the main rule could be found in the first sentence. She noted that two written comments had been received from States on this Article and these could be found in Preliminary Document No 36;
one was from the Mercosur countries and one from Swit-zerland. She suggested that because the Latin American proposal was so closely related to the costs of genetic test-ing and the provision in that regard found in Article 14 bis, the discussion of that proposal should take place when Ar-ticles 14 and 14 bis were being discussed. She then asked the delegation of Switzerland to present their proposal.
2. Ms John (Switzerland) stated that in order to ensure that the competent authorities could really comply with the duties set out under the definition of “legal assistance”, the proposal had shortened the text of the definition. She noted that it would read as follows: “‘legal assistance’ means the assistance necessary to enable applicants to assert their rights and to ensure that applications are effectively dealt with in the requested State. This includes assistance such as general information of a legal nature (at least), assistance in bringing a case before an authority and legal representa-tion”. She emphasised that the changes were as follows:
first, the term “legal advice” was replaced with the phrase
“general information of a legal nature (at least)”. She stated that the reasoning for this was that in Switzerland the com-petent authorities are not in a position to offer legal advice in the sense that a lawyer could provide to a party. In earli-er discussions on this issue it was made clear that in othearli-er countries the competent authorities under the preliminary
draft Convention in most cases will be the ones that have the knowledge about the procedures involved and could provide this information. She noted that the words “at least” in parentheses indicate there could be more if this was possible in the State. She stated that the second change made was the deletion of the words “know and”, leaving the sentence stating “to enable applicants to assert their rights” because they thought this to be sufficient. She noted that the word “fully” had also been deleted, leaving the sentence to read “applications are effectively dealt with”.
She stated that the third change was the deletion of the words “and exemption from costs of proceedings”, because it was felt that this had more to do with free legal assis-tance than with legal assisassis-tance. She remarked more gener-ally that clarification was necessary in that here there was a definition of legal assistance while the text of the prelimi-nary draft Convention speaks mostly of free legal assis-tance.
3. Mr Hayakawa (Japan) asked whether the second sen-tence of Article 3, paragraph (c), containing descriptions of several types of legal assistance, required that all States provide all these types of legal assistance, because if so this could be problematic. He stated that under the legal frame-work of Japan, there is no exemption from the cost of legal proceedings but the applicants are given the money to pay for them. So if this Article obliged the Contracting States to have exemption from the cost of legal proceedings as a form of legal assistance, this would be a problem for Japan.
4. Mr Ding (China) stated that he shared the concern expressed by the delegation of Japan. He stated that it was the understanding of his delegation that the legal assistance provided should be that available in each Contracting State.
He noted that the delegation of China had prepared a work-ing document on this issue which would be available later in the session and he hoped that it could be further dis-cussed then.
5. Mr Moraes Soares (Brazil) stated that the proposal from the Mercosur countries on the costs of genetic testing was linked to the issue now being discussed. He noted that while they had agreed to discuss this when Article 14 was being examined, it seemed that it was relevant to the pre-sent discussion, such as the difference between legal assis-tance and free legal assisassis-tance. He expressed concern that if the discussion on the Mercosur proposal was not discussed until later, these issues would already have been decided and asked if it was possible to have the discussion about the proposal from the Mercosur countries now.
6. The Chair stated that her intention was that Article 3, paragraph (c), would not be finalised by the time the dis-cussion reached Article 14 bis and so the proposal could be discussed then in that context.
7. Mr Moraes Soares (Brazil) agreed to this arrange-ment.
8. Mr Segal (Israel) expressed support for the proposal of the delegation of Switzerland because usually definitions are not intended to create obligations on specific matters.
He stated that when there were specific examples provided, as in the current text, the expression “such as” could be interpreted as meaning that this should be the least that is provided in terms of legal assistance. He stated that this was unnecessary as there were later Articles that contained specific obligations and that the methods of providing legal assistance should be left open to the law of each Contract-ing State, if not specifically set out in a later Article. He
emphasised that there should be a more flexible definition of legal assistance.
9. Ms Lenzing (European Community – Commission) stated that the European Community was happy with the text as redrafted by the Drafting Committee. She noted that it was the first sentence that was important, and the general obligation that legal assistance include all the assistance necessary to enable applicants to know and assert their rights and to ensure that applications are fully and effec-tively dealt with in the requested State. She stated that, as the Explanatory Report specified, this general definition, along with the examples specified in the second sentence, left enough flexibility to Contracting States. She noted that the Explanatory Report stated clearly that not everything set out in the second sentence had to be provided in every circumstance but rather it depended on the organisation, the system and the context where the specific aspect of the definition had to be provided. She referred to the objection of Switzerland that its competent authority would not be able to provide legal advice but stated that, in her under-standing, the definition did not oblige the Central Authority to provide legal advice. She commented that since the defi-nition had to work with both Article 6 and Article 14 it gave the Contracting States the flexibility to, for example, under Article 6, only facilitate the provision of legal assis-tance by telling the applicant he could consult a particular lawyer, or by giving general information of a legal nature and then if specific legal advice that could only be given by lawyers was necessary, and the applicant qualifies for free legal assistance under Article 14, the Contracting States would have to pay for the services of the lawyer. She stated that in her understanding the definition was flexible to ac-commodate every system. She responded to the point raised by the Delegate of Japan concerning the phrase “exemption from costs of proceedings” and suggested that perhaps it could be redrafted to include a broader range of situations.
She reiterated that she did not understand the second sentence of Article 3, paragraph (c), as causing any conflict with any legal system as it was the first sentence that was important, the second sentence was illustrative, and that finally it was the result that mattered, not the form of legal assistance used to achieve it.
10. Ms Carlson (United States of America) expressed support for the definition of Article 3, paragraph (c), in its current form but noted that this did depend on the results of the discussion on Article 14. She agreed with the Delegate of the European Community that the second sentence was merely illustrative. She stated that she read the second sen-tence as meaning “this includes where necessary or appro-priate” and felt that this sense was indicated by the use of the words “such as”. She stated that it was not the case that all types of legal assistance had to be provided in every from the cost of legal proceedings was possibly out of place here, appearing to relate more to free legal assistance. She commented in response to the proposal of the delegation of Switzerland that she thought it served a pedagogical benefit to keep the words “know” and “fully” in the Article.
11. Ms Nind (New Zealand) expressed support for the position of the delegations of the European Community and the United States of America. She stated that she saw the second sentence as illustrative and not requiring assistance
in that State. She commented that she was also hesitant about the inclusion of the exemption of costs of legal pro-ceedings and would accept a change in that wording to accommodate people’s concerns.
12. Ms Kulikova (Russian Federation) noted that as far as the definition of legal assistance was concerned her original reading of the second sentence of the paragraph was the same as that of other delegations: that it was something obligatory. She stated that it would be preferable if it were seen as an illustrative list, as there are different legal sys-tems and different types of legal assistance provided in national legislation and each country would understand legal assistance in the manner provided for in its own na-tional legislation. She commented that the Russian Federa-tion did not have some of the instituFedera-tions listed in the sec-ond sentence, or that some of them were understood in a different way. She noted that in different legal systems the same term referred to different legal notions. She referred to the term “legal advice” and recalled that in the previous Special Commission meetings she had expressed concern about the extent of what would be covered by it. She sup-ported the proposal of the delegation of Switzerland to re-place “legal advice” with “information of a legal nature” as it was clearer, while “legal advice” was broader and gave no indications of the limits of the obligation. She stated that legal assistance should be understood as it is understood under the national legislation of each State, and requested that the second sentence be altered to clarify that it is in-deed illustrative and that not all the forms of legal assis-tance listed are necessary for each and every State, but that they are dependent on what types of legal assistance are available in the State.
13. Ms Doogue (New Zealand) asked whether inserting the words “may include” in the second sentence would succeed in clarifying that the sentence was illustrative.
14. Mme Parra Rodriguez (Espagne) souhaite appuyer l’opinion émise par les délégations de la Fédération de Russie et de la Nouvelle-Zélande. Elle indique que la délé-gation de l’Espagne accepte la définition de l’assistance juridique proposée à l’article 3, paragraphe (c), de l’avant-projet révisé de Convention. Elle estime cependant qu’il serait préférable de préciser le caractère illustratif des élé-ments qui y sont énumérés. Elle mentionne que dans la version espagnole du texte, la liste de ces éléments présente un caractère plus impératif. Elle propose soit de clarifier la deuxième phrase de cet article qui est susceptible de poser des problèmes d’interprétation, soit de la supprimer.
15. M. Marani (Argentine) indique que la délégation de l’Argentine partage l’opinion exprimée dans les interven-tions précédentes au sujet de l’article 3, paragraphe (c), en admettant les éventuels problèmes d’interprétation pouvant être soulevés par cet article. Bien qu’il reconnaisse cet as-pect, il souligne que l’Argentine, pour sa part, interprète cette phrase comme étant simplement illustrative. Il estime que la première phrase de cet article est la plus importante parce qu’elle établit une obligation concrète. Il considère la deuxième phrase comme une série d’exemples qui vient illustrer la première phrase. Il conclut en indiquant qu’il estime important de maintenir les deux parties de cet article à cause du lien qui les unit.
16. Mr Oliviera Moll (Brazil) stated that the interpreta-tion of the second sentence as not obligatory was new for his delegation, as they were not interpreting it in that way.
He noted that the sentence read “includes assistance such as” rather than “may include”. He stated that the Article did
pressly mentioned, it seemed to him that they were partage la même préoccupation que la délégation du Brésil.
Elle indique que la délégation du Chili a eu l’impression, lors des discussions du mois de mai, qu’il s’agissait de normes minimales. Elle partage également l’opinion expri-mée par la délégation des États-Unis d’Amérique sur le fait que certains États auront la possibilité de fournir une meil-leure assistance que d’autres qui n’en auront pas les moyens. Elle pose enfin la question de savoir s’il s’agit bien de standards minimaux ou non.
18. Mr Markus (Switzerland) stated that the definition as such may not be obligatory but as soon as the word that is defined is used in an operative provision it becomes man-datory and obligatory. He gave the example that if in Arti-cle 14 bis of Option 2 it was stated that the requested State shall provide free legal assistance this meant that every element in Article 3, paragraph (c), must be offered by a State which is bound by this Convention. He stated that this was also the reason why the delegation of Switzerland made the proposal and why they had some doubts whether Switzerland could offer everything that was contained in the definition. He welcomed the proposal by the Delegate of New Zealand to include the term “may include” as it clarified that the second sentence is just an illustration of what is meant by legal assistance and it would take away the obligatory nature of every element which is contained in it. He went on to state that his delegation was persuaded that there was a problem with the definition of legal assis-tance and the definition of free legal assisassis-tance and found it more confusing than before. He felt this needed to be clari-fied. He stated that his delegation would be in favour of deleting the phrase “and exemption from costs of proceed-ings” from the second sentence of Article 3, paragraph (c), as it seemed clear that this was a matter of free legal assis-tance and not legal assisassis-tance as such. He remarked that his delegation was also concerned by the Explanatory Report as it departed from the idea that not everything contained in the definition was obligatory. He referred to paragraph 380 of Preliminary Document No 32 where it states that “[a]
failure to provide legal advice in the first instance may be a denial of access to justice” and he stated that it was clear that legal advice, the issue at hand, would, according to the text of the Explanatory Report, be an extremely important element. He noted that this increased his delegation’s hesi-tation about the text of Article 3, paragraph (c).
19. Mr Sello (South Africa) expressed support for the in-clusion of the words “may include” so as to ensure that the definition does not sound obligatory.
20. Mr Bavykin (Russian Federation) asked for a clarifi-cation of the status of the Explanatory Report. He stated that his question was prompted by the intervention of the Delegate of Switzerland who read a sentence from the Re-port that gave a conclusion. He questioned whether all the explanations given in the Report had to be relied upon as something given by an upper authority and whether it was to be regarded as a document that would guide the dele-gates all the time or whether it was just supplementary ma-terial to give extra ideas. He asked if it was possible for delegates to determine for themselves the interpretation of particular Articles or if the Report had to be relied upon when there is some doubt in the interpretation of any of the Articles.
21. The Deputy Secretary General responded that the Explanatory Report in Preliminary Document No 32 was certainly not a final Report. He stated that it had been pre-pared by the co-Rapporteurs to assist debate in this Session and, particularly, to remind the delegates how the wording of the existing text of the Convention had been arrived at.
He noted that there would ultimately be a final Report pre-pared by the co-Rapporteurs following this Session, which would be finalised according to a procedure that was yet to be agreed. However, at this stage he thought that the co-Rapporteurs would share the view that the Explanatory Report was an aid to understanding the text and a reminder of how the present wording was reached. He stated that at this stage the Report was not intended to be authoritative.
He noted that the status of the final Explanatory Report would, of course, be different.
22. The Chair commented that Working Document No 1 of Commission I containing the proposal by the delegation of China relating to Article 3, paragraph (c), was now being distributed and asked the delegation of China to present their proposal.
23. Mr Ding (China) stated that his delegation proposed a slight adjustment to Article 3, paragraph (c). He stated that the aim of the proposal was to make sure that the assistance referred to was as provided for by the law of the requested
23. Mr Ding (China) stated that his delegation proposed a slight adjustment to Article 3, paragraph (c). He stated that the aim of the proposal was to make sure that the assistance referred to was as provided for by the law of the requested