Definition and significance of legal aid
Legal aid refers to a special legal status that enables individuals in need to access the justice system without being burdened by court and lawyer fees. In a broader sense, legal aid encompasses all statutory provisions aimed at ensuring effective legal protection for economically disadvantaged persons. Today, legal aid is primarily embodied in the form of procedural cost assistance (Prozesskostenhilfe, PKH) under German law, as well as similar regulations in other legal systems.
Historical development of legal aid
Development in the Middle Ages and Early Modern period
Even in the Middle Ages, there were initial provisions that enabled destitute people to access the courts. Especially in the legal systems of the Holy Roman Empire, special procedural rules known as ‘Armenordnungen’ (rules for the poor) were introduced. These regulations allowed that, upon application, persons in need could be exempted from paying procedural costs.
Legal aid in the 19th and 20th centuries
Over the course of the 19th century, legal aid was systematically integrated into civil legislation. The Courts Constitution Act of 1877 initially provided that indigent persons could apply for so-called legal aid certificates. With the introduction of the Code of Civil Procedure (ZPO) in 1877, legal aid was further developed and firmly established as a component of the German civil process. Since 1980, the current form of procedural cost assistance has replaced earlier forms of legal aid and has assumed its function.
Legal aid and procedural cost assistance in Germany
Scope and objectives
Legal aid is directly linked to guaranteeing the fundamental right to fair and effective legal protection. Under German law, it has in practice largely been replaced by provisions on procedural cost assistance (§§ 114 et seq. ZPO) and legal advisory assistance (§ 1 et seq. Legal Advisory Assistance Act – BerHG). The goal is to ensure that persons in financial distress can access the law, regardless of their financial circumstances.
Requirements for approval
Approval of procedural cost assistance, and thus the application of legal aid provisions, requires:
- Economic need: The applicant cannot meet the costs of litigation, only partially, or only by installment payments (§ 115 ZPO).
- Prospect of success: The intended legal pursuit or defense must have sufficient prospects of success.
- Absence of frivolousness: The proceeding must not appear frivolous.
Scope of benefits
If procedural cost assistance is granted, the state treasury covers part or all of the court and lawyer fees. Depending on financial capability, the parties are wholly or partially exempt from paying the fees. The rights of the party in need are to be made equivalent to those of financially better-off parties.
Repayment obligations
The recipient is obliged to report any changes in their financial circumstances within four years after the conclusion of the proceedings. If financial circumstances improve, repayment may be required retroactively (§ 120 ZPO).
Legal aid provisions in other areas of law
Administrative jurisdiction and criminal law
In administrative court proceedings, legal aid is applied in parallel in the form of procedural cost assistance (see §§ 166 VwGO, 114 et seq. ZPO). In criminal law, there is no direct form of legal aid, but indigent defendants are appointed a public defender (§ 140 StPO), which serves a similar function.
Social and labor court jurisdictions
In the social court system (§§ 73a SGG, 114 ZPO) and labor courts (§ 11a ArbGG), there are comparable provisions on procedural cost assistance, which ensure legal aid.
Legal aid in the international context
Regulations in European law
Legal aid is enshrined as a legal principle on an international level in Article 6 of the European Convention on Human Rights (ECHR). This provision obliges member states to ensure everyone effective judicial enforcement of their rights, regardless of their financial means.
Implementation in other countries
In other European countries as well as in many non-European legal systems, similar instruments exist, such as Legal Aid or Court-Appointed Counsel, which ensure legal aid. The specific design varies according to national legislation, but the aim of ensuring access to justice for those in need is generally recognized.
Criticism of legal aid and current developments
Points of criticism
Legal aid and instruments associated with it, such as procedural cost assistance, are regularly subject to discussion. Particular points of criticism are:
- Complexity of application procedures: The application process and provision of evidence are considered complicated and discouraging.
- Limitation of approval: Not all court proceedings are covered by procedural cost assistance, and there is strict scrutiny regarding the likelihood of success.
- Financial burden due to repayment obligations: In cases where the applicant’s financial situation improves, those affected may find themselves in financial difficulties due to repayment requirements.
Reform efforts
More recently, there have been efforts to further simplify legal aid and procedural cost assistance and make access to justice even lower-threshold. Discussions include digitalizing the application process, adjusting the income limits, or providing even more comprehensive protection against recovery claims.
Literature and sources (examples)
- Zöller, Code of Civil Procedure, Commentary.
- Musielak/Voit, ZPO – Commentary.
- Meyer, Procedural Cost Assistance and Advisory Assistance.
- European Convention on Human Rights (Art. 6 ECHR).
- Legal Advisory Assistance Act (BerHG).
- Code of Civil Procedure (ZPO) §§ 114 et seq.
Note: This article provides a systematic overview of the term legal aid, its historical origins, application in German law and international contexts, and current challenges. It serves as an in-depth legal classification for a legal encyclopedia and delivers a comprehensive account for interested parties and those affected.
Frequently asked questions
When and how can an application for legal aid be submitted?
An application for approval of legal aid must generally be filed before or during a court proceeding. The applicant must credibly demonstrate that they cannot pay the required costs of the proceeding in full, only partially, or only in installments from their own funds. The application must be submitted in writing to the competent court and must include a detailed statement of personal and financial circumstances. This includes, among other things, information about income, assets, regular expenses, and family maintenance obligations. Often, an official form (“Declaration on personal and financial circumstances”) must be used for this purpose, which should be supported by suitable evidence (e.g., payslips, rental agreements, bank statements). The court will then examine whether the economic conditions for granting legal aid (procedural cost assistance) exist and whether the intended legal pursuit or defense has sufficient prospect of success and does not appear frivolous. If approved, both the court costs incurred and, if applicable, the costs of an assigned lawyer will be covered.
What costs are covered by legal aid?
Legal aid, known in Germany as procedural cost assistance, primarily covers the necessary court costs and the costs for legal counsel, provided a lawyer is assigned to the applicant. This notably includes court fees, allowances for witnesses and experts, as well as the statutory fees and expenses of one’s own lawyer. However, it does not cover the costs incurred by the opposing party in the proceedings; if the applicant loses, they may still be required to pay the opponent’s legal fees, unless otherwise excluded (e.g., in family matters). Furthermore, approval of legal aid does not include voluntary or extra-contractual expenses exceeding legal provisions, such as appointing a lawyer from outside the local area or more than one legal counsel per instance, unless court approval is granted.
Can approved legal aid be subsequently revoked or modified?
Yes, approved legal aid can be revoked or modified if the applicant’s actual or financial circumstances undergo substantial change, or if it later becomes known that the requirements for approval did not exist or have ceased to exist. In particular, the recipient of legal aid is obliged to notify the court immediately of any change in income or assets. If they fail to fulfill this obligation or make false statements, the court may retroactively revoke approval and reclaim previously assumed costs. Moreover, financial circumstances are regularly reviewed for up to four years after final conclusion of the case, and if the person is able to do so, installment payments may be ordered or additional payments demanded.
What requirements must be met to obtain legal aid?
Legal aid approval firstly requires that the applicant is in need. The decisive factor is whether they are unable to meet the costs of litigation in whole or in part from their own resources without endangering the necessary livelihood of themselves or those they are obliged to maintain. Both current income and realizable assets are considered. In addition, the legal pursuit or defense must have sufficient prospects of success, which the court determines through a summary review of the facts and legal situation. The legal pursuit must also not be frivolous; i.e., from an objective perspective, no unreasonable or manifestly hopeless interests may be pursued. If these requirements are met, (partial) legal aid may be granted.
Is there a right to the appointment of a lawyer under legal aid?
Within the framework of legal aid, a right to the appointment of a lawyer generally exists if this is legally provided for (for example, in certain family law disputes) or if, due to the difficulty of the factual or legal situation, proper legal pursuit or defense would not be possible or reasonable for the party without the assistance of a lawyer. The applicant is generally free to choose the lawyer; however, usually only one lawyer per instance will be appointed unless the court grants an exception. Appointment means the state pays the statutory fees of the assigned lawyer, though if successful, there may still be a claim for reimbursement of legal costs by the losing party.
Does legal aid also apply to appeal or complaint proceedings?
Legal aid can also be applied for and granted in appeal or complaint proceedings. It does not apply automatically to every instance; a separate application must be submitted for each proceeding. The economic circumstances and the prospects of success in the appellate instance must be reviewed again. If these are affirmed, the approval again covers court costs and, where necessary, the costs of an assigned lawyer for that instance. If the appeal is lodged frivolously or is manifestly hopeless, approval may be denied.
Is legal aid also applicable to out-of-court matters?
Legal aid (procedural cost assistance) generally only applies to court proceedings. For out-of-court matters—such as the need for advice or representation vis-à-vis third parties without pending proceedings—advisory assistance under the Legal Advisory Assistance Act can be requested if the applicant is in need. Advisory assistance primarily covers the costs of out-of-court legal advice and representation, but not the costs of possible subsequent court proceedings. It must be applied for at the competent local court; here too, personal and financial circumstances must be substantiated and the legal necessity of legal support explained.
