1. Introduction

On 16 October 2024, the Portuguese Constitutional Court (CC) ruled on the constitutionality of the monthly income threshold above which a person cannot benefit from legal aid (Judgment 727/2024). The CC deemed unconstitutional the provision contained in Articles 8, no. 1, and 8-A of Act 34/2004 of 29 July (on access to law and to courts and transposing into national law Council Directive 2003/8/EC of 27 January 2009 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes; it has been amended five times) and its Annex (calculation of relevant income for legal protection purposes) that do not allow a legal aid applicant to benefit from exemption of the court fees and other processual costs, including costs associated with the appointment and payment of a lawyer, although the applicant’s monthly income is lower than the national minimum wage. The Court considered that to grant the applicant only the instalment payment violates Article 20(1) of the Constitution, i.e., the right to access law and effective judicial protection, when their available monthly income is substantially equivalent to the value of the initial court fee and when the value of the monthly instalment decreases their respective net income, which is already below the guaranteed minimum monthly wage.

Despite the publicity given to this judgment (“State condemned for charging court fees to those earning below the minimum wage”, Publico, 3 November 2024), this was not the first time that legal aid regulation had been addressed by the Constitutional Court. In fact, this Court has ruled on legal aid several times in recent decades (e.g., Judgment no 364/04, on the legal procedure to decide whether an application should benefit from legal aid). The judgment in reference is the most recent one and illustrates the constitutional approach to the question about what level of economic insufficiency a person must have to benefit from legal aid in terms of being guaranteed effective access to court and a fair trial.

With respect to this judgement, our aim is to present its scope in the context of the Portuguese legal aid system. To this end, it is first briefly described (2.). Second, we report on the terms of the discussion called for by that judgment, which considers the economic insufficiency than a legal aid applicant must have to benefit from it (3.) In conclusion, there is a brief commentary on the regulation and the case law as a whole (4.).

 

2. Access to the courts and the legal aid system

According to the Portuguese Constitution, justice—“access to the law and the courts”—cannot be denied to anyone because of insufficient economic means (Article 20(1)). This includes “the right to legal information and advice, to legal counsel and to be accompanied by a lawyer before any authority”, as specified by law (Article 20(2)). To comply with this provision, a legal regulation was enacted, which is currently Act 34/2004 of 29 July. This act establishes two types of legal protection: legal advice and legal aid. The first includes the clarification of legal questions and help in dealing with specific cases by lawyers at legal advice centres and in the offices of lawyers who are members of the access to law system (Articles 14 and 15; and Article 1 of Ministerial Order no. 10/2008, of 03 January). The second comprises exemption from paying court fees and other costs associated with a case, appointment of a lawyer and payment of lawyer’s fees, payment of court fees and other case-related costs in instalments, and assignment of an enforcement agent (Article 16).

To be entitled to legal protection, it is not necessary to have Portuguese citizenship or citizenship of any other nation in the European Union. Foreigners and stateless persons who are holders of a valid residency permit in a Member State of the European Union can also possibly benefit from such aid (e.g., Article 15 of the Constitution and Article 7(1)-(2) of Act 34/2004). Non-profit-making organisations are entitled only to legal protection in the form of legal aid (Article 7(4) of Act 34/2004).

The ability to obtain legal aid depends on an applicant’s economic insufficiency. With respect to natural persons, this means that they are objectively unable to bear the costs of the case. This implies considering the net income, assets and permanent expenditures of the applicant’s household (Annex to Act 34/2004). The extent of economic insufficiency determines the scope of legal aid: if the applicant is able to bear the costs of a legal consultation (subject to prior payment of a fee), but not the costs of a case, they benefit from legal aid in the form of a phased payment and the assignment of an enforcement agent; if it is not the case, there is no such limitation (Articles 8(1) and 8-A of Act 34/2004 and Order no. 1085-A/2004, of 31 August, laying down the criteria for proving and assessing economic insufficiency for the granting of legal protection). The possibility of bearing such costs is measured by reference to the social support index (Article 8-A(2) of Act 34/2004). This constitutes the reference for setting, calculating and updating support and other public administration expenditures and revenue, of any nature, for which legislative or regulatory acts provide (Article 2(1) of Act 53-B/2006, of 29 December). Its value is € 509,26 for 2024 (Ordinance no. 421/2023 of 11th December). Nevertheless, in Judgment 727/2024, which is discussed here, the Constitutional Court considered the guaranteed minimum monthly wage, which was € 820 euros in 2024 (Decree-Law no. 107/2023 of 17 November), as the relevant threshold. The beneficiary's net monthly income was lower than the guaranteed minimum monthly wage (II.7, § 3), and, as mentioned, the Court deemed unconstitutional the law that required the applicant to pay the costs of the process even in a phased manner.

The rules described here apply, with the necessary adaptations, to non-profit legal persons (Article 8(2) of Act 34/2004). In the case of domestic violence victims and victims of crimes against sexual liberty and autonomy, economic insufficiency is assumed, and a decision about the request for judicial support is considered urgent (Act 45/2023, of August 17).

The decision to request judicial aid is the responsibility of social security services (Article 20 of Act 34/2004). Since 2001 (Act 30-E/2000, of 20 December), the courts have judged appeals only against the decisions of those administrative entities (Articles 27 and 28 of Act 34/2004).

Applicants must support and attach to their request certain documents to prove their economic condition (Article 8-A of Act 34/2004). These documents are not directly retrieved from state-held information systems and registers, which constitutes a serious hurdle to timely and opportune decisions. Although Portugal reported that it has adopted the principle of a single declaration or an only-once principle (Mamrot, S., Rzyszczak, K. (2021). Implementation of the ‘Once-Only’ Principle in Europe – National Approach. In: Krimmer, R., Prentza, A., Mamrot, S. (eds) The Once-Only Principle. Lecture Notes in Computer Science, vol 12621. Springer, Cham, p. 31. https://doi.org/10.1007/978-3-030-79851-2_2), in fact, it is seldom applied. On the one hand, this principle is not known by potential beneficiaries or by civil servants. On the other hand, there is the misleading understanding that applicant consent is necessary, even if this cannot be used when there is a “clear imbalance between the data subject and the controller, in particular where the controller is a public authority” – Recital 43 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data. This results in serious difficulties in exercising legal aid rights, because if specific documents are not obtained in a timely manner, it is not possible for an applicant to obtain the appropriate legal support.

The Constitutional Court has already been called upon to assess the constitutionality of the reading according to which the peremptory deadline for the conclusion of an administrative procedure decision about a request for legal aid can be counted only after the provision of all necessary and sufficient elements for its appraisal to the administrative entity (Judgment 364/04). The Court stated that by failing to submit the application with all the information and proof of their true economic situation, the delay in the procedure decision is attributable to the applicant (8.2. of Judgment 364/04). The Constitutional Court also decided that the rule that renders the interruption of the time limit in pending legal action dependent on the attachment of a document that proves the application submission (for legal aid in the form of the appointment of an attorney) is not unconstitutional (Article 24(4) of Law 34/2004, and Judgment 350/2016, of 7 June).

In contrast, the Constitutional Court declared in another case, with general binding force, the unconstitutionality of the rule according to which the interruption of the judicial process of legal aid application begins with a notification to the appointed patron even if the applicant has not yet been notified of it (Article 24(5)(a) of Law no. 34/2004, and Judgment no. 515/2020).

The case law mentioned here justifies the Council of Europe recommendation that Member States “ease the bureaucratic burden imposed on applicants, in particular by reducing the number of documents they are required to provide in support of an application for legal aid” (The efficiency and the effectiveness of legal aid schemes in the areas of civil and administrative law, Guidelines and explanatory memorandum, adopted by the Committee of Ministers of the Council of Europe on 31 March 2021, no. 16, p. 10).

Having presented, in general terms, the legal protection system for accessing law and courts, the requirement of economic insufficiency to obtain legal aid will be addressed.

3. The scope of economic insufficiency to accede legal aid

Since its original version, the Portuguese Constitution has stated that everyone is guaranteed access to courts for the defence of their rights and that justice cannot be denied due to a lack of sufficient economic means (Article 20(1) – “Access to law and effective judicial protection”), as mentioned above. The Judgment discussed here (Judgment 727/2024), as already noted, is the most recent judgment in Portuguese Constitutional Court case-law about legal aid and the economic eligibility threshold. The related case law dates back to the Constitutional Commission (which was the first body that, in the original version of the 1976 Constitution, had the responsibility to assess rule constitutionality; it replaced by the Constitutional Court in the first constitutional revision of 1982 -Santos Botelho, C., A história faz a Constituição ou a Constituição faz a história? – Reflexões sobre a história constitucional portuguesa (2013). Revista do Instituto de Direito Brasileiro, Vol. 2(1), pp. 229-247, 2013, Available at SSRN: https://ssrn.com/abstract=2911122).

The Opinion of the Constitutional Commission No. 8/1978 (Pareceres da Comissão Constitucional, 5.º Volume, do No. 8/87 to No. 17/78, pp. 1-8), regularly cited on the matter, framed the scope interpretation of Constitution’s Article 20(1). It stated the following:

• The defence of the legally protected rights and interests of citizens integrates the exercise of the judicial function;
• Article 20(1) of the Constitution aims to eliminate, with regard to access to justice, the inequality arising from insufficient economic means, determining that this cannot hinder access to justice;
• There will be a violation of Article 20(1) of the Constitution if and to the extent that a citizen, owing to the lack of adequate legislative measures, may see their right to justice frustrated due to insufficient economic means.

It has long been well established in constitutional case-law that the legislator has a normative duty under the Constitution to establish a legal aid system that ensures that citizens are not denied access to effective judicial protection because of insufficient economic means (e.g., Judgment 859/2022, II.16, and Judgment 89/2004, no. 3, §§ 5-6). In Judgment 278/2022, the Constitutional Court not only reiterated this reading (II.2.1.) but also judged unconstitutional the legal provision in light of which an applicant must pay an initial court fee (prepayment duty that contends to the possibility of litigation) that is equivalent to the applicants monthly available income and must pay a monthly instalment court fee, which, as consequence, reduces their net monthly income to a value that is lower than the national guaranteed minimum monthly wage.

In Judgment 727/2024, the Constitutional Court included in its assessment the appointment and payment of an attorney, and it considered a situation in which, prior to any instalment payment to court costs, the applicant’s monthly income is already lower than the minimum monthly wage. This double aspect must be highlighted as follows:

• On the one hand, the costs inherent to the judicial process included those related to the lawyer services (being, as a rule, mandatory in Portuguese legal order, the representation by a lawyer in court, which, although problematic, was not judged against Article 6 §§ 1 and 3 (c) of the European Convention on Human Rights, of the Convention by the ECtHR in the Judgment Correia de Matos v. Portugal, of 15 November 2001, Application 8188/99, C. and in the Judgment Correia de Matos v Portugal, of 04 April 2018, Application 56402/12, nos. 144-169);
• On the other hand, the legal provision that was judged unconstitutional admitted that the applicant must pay such costs even if their net monthly income is lower than the guaranteed minimum monthly wage (II.7, § 3).

The Court emphasises that the legal regulation implies the protection of the right to a dignified existence and the ablation of the right to access law and courts that was guaranteed in Article 20(1) of the Constitution (II.9, § 2). As petitioned in the process, another interpretation would cause the applicant’s monthly income to fall below what is considered basic for a satisfactory standard of living, and for this reason, such an applicant would no longer have the means to access the court for the defence of their rights and legitimate interests (I.4.14).

That is, the judicial system would only be used by those who can pay and those who are indigent. People in low economic condition who, although not indigent, subsist on a monthly income below which a decent standard of living is not presumed would be denied access to court for strictly economic reasons (I.4.14). In other words, a system that provides justice to those who can afford it and, at the other extreme, to the poorest (“persons who are particularly deprived, marginalised or excluded from society both in economic and in social and cultural terms” - Recital 4 of Recommendation No. R(93)1 on Effective Access to the Law and to Justice for the Very Poor. URL: https://search.coe.int/cm?i=09000016804df0ee) denies it to a considerable group of citizens positioned between those two extremes (Judgment 278/2022, II.2.2., and Judgment 727/2024, no. 8). As such, not being (necessarily) poor would carry the possibility of making a living but would not in itself guarantee a truly equal position in the courts (e.g., ECtHR Judgment of 9 October 1979, Airey v. Ireland, Application 6289/73, no. 24; Khabirpour, N. (2024), A Tale of Two Cases and a Story Yet Untold: Access to Justice and Legal Advice under the Civil Limb of Article 6 ECHR. Modern Law Review, p. 9. https://doi.org/10.1111/1468-2230.12937); without this truly equal position in the courts, it cannot be said that access to the service of justice is effective (Judgment 278/2022, II.2.1., second to last paragraph). In this vein, if “legal aid may be available with a financial contribution by the assisted person [it] … shall not exceed what that person can pay without undue hardship” (Appendix to Resolution (78) 8 of the Council of Europe, Part I, 2, § 2. URL: https://search.coe.int/cm?i=09000016804e2bb2). The assessment at stake must be concrete and consider the true economic situation of the applicant, according to their specific expenses (Judgment 127/2008, third paragraph from the end of point 2).

For the Constitutional Court, economic insufficiency is also relevant in regard to profit organisations. In 2018, the court declared unconstitutional the legal provision that refuses legal aid to such organisations without considering their specific economic situation (Article 7(3) of Act 34/2004 and Judgment 242/2018). The Court emphasises that the refusal of legal aid cannot be made in abstract but requires, in all cases and for all types of processual subjects, an assessment of whether the right of a person to have access to a court is at stake (II.E.24, last §). The Court invoked the ECtHR and the ECJ case law to support its position. By doing so, the Constitutional Court disregarded the dissenting arguments on the different natures of individuals and legal persons and on the relevance of the financial implications for the state budget (which is an important element in the drawing up of a legal aid system - Váradi, Á. (2016). The concept of legal aid in the most recent case law of ECJ. In Szabó, M., Varga, R. & Láncos, P. L. (eds.), Hungarian Yearbook of International Law and European Law 2015, Eleven International Publishing, p. 470.

The Constitutional Court also disregarded the fact that the ECJ broadens the scope of the assessment to be carried out, as this considers criteria such as “the form of the legal person in question and whether it is profit-making or non-profit-making; the financial capacity of the partners or shareholders; and the ability of those partners or shareholders to obtain the sums necessary to institute legal proceedings” (Judgment of 22 December 2010, Deutsche Energiehandels- und Beratungsgesellschaft mbH, C‑279/09, no. 62, ECLI:EU:C:2010:811). In accordance with the Guidelines of the Committee of Ministers of the Council of Europe on the efficiency and effectiveness of legal aid schemes (2021), as mentioned above, it is up to the Member States to choose “to make legal aid available to legal persons”, in which case they “may take into account the financial situation of the legal person, and of natural persons with an interest in the legal person” (no. 11, p. 9, and p. 22). In fact, as the ECtHR has observed, “there does not appear to be a consensus or even a consolidated tendency among the States Parties to the Convention as regards the granting of legal aid to legal entities in civil disputes” (Judgement of 8 November 2016, Urbšienè and Urbšys v. Lithuania, 16580/09, no. 45), and for the ECtHR, the protection of the right to obtain legal aid under the ECHR is assessed under a “means test” and a “merit test” (e.g., Peers, Steve (2016). Europe to the Rescue? EU Law, the ECHR and Legal Aid. In: Access to Justice: Beyond the Policies and Politics of Austerity. Hart Publishing, pp. 53-68. ISBN 9781849467346).

4. Conclusion

Legal aid regulation has been the subject of several Constitutional Court rulings over the years. The judgment we have taken as the starting point for this text (Judgment 727/2024) is not only the most recent one but also a significant one in the evolution of regulation over the years. Judgment 727/2024 was handed down in a concrete constitutionality review process (Article 280 of the Constitution). This means that the legal provisions it addresses do not cease to be in force but merely cannot be applied in the specific court case. It is, however, part of the Constitutional Court's understanding expressed in previous judgements according to which economic insufficiency must be measured in terms of safeguarding access to the law and the courts without jeopardising a decent living.

As long as there is no abstract review of constitutionality, the provision envisaged will remain in the legal order. Nevertheless, Act 34/2004 has a safeguard clause: the head of the social security department who is responsible for making decisions regarding the granting of legal aid must assess whether the application of the legal criteria will lead to a manifest refusal of access to the law and the courts and, if this is the case, they may, on specific grounds and without the possibility of delegation, decide differently from the result of the application of these criteria.

In addition, it is relevant to note that the declaration that the exclusion of profit organisations from the legal regulation on legal aid is unconstitutional has not yet translated into a formal change to Act 34/2004, although the constitutional judgment is made in 2018 (Judgement 242/2018). The Council of Europe, among the potential beneficiaries of legal aid, singled out the poorest in a separate document, insofar as, after Resolution (78)8 on legal aid and advice, it adopted Recommendation No. R(93)1 on effective access to the law and to justice for the very poor. In this context, there is a certain lack of consideration in the way the legislature and the Constitutional Court perceive the issue of legal aid. The latter seems to oscillate between ‘everything’ or ‘nothing’, with ‘everything’ being the way that the right to legal aid for profit-oriented organisations has been covered and ‘nothing’ being the lack of sensitivity to the procedural difficulties people face in exercising this right.