1. Hereafter CCPr.

2. Arts. 152 and 153 CCPr.

3. Art. 855(2) CCPr.; Art. 10 of the 1957 Legal Assistance Act for persons of nil or limited assets (LAA).

4. The Netherlands have concluded with 56 countries 21 conventions which contain provisions concerning the exclusion of cautio judicatum solvi. The Netherlands have concluded with 98 countries 31 conventions which contain provisions concerning cost free access to the courts and free legal assistance. For more detailed information: see annex.

5. Art. 152(1) CCPr.

6. Art. 152(2) CCPr.

7. Art. 153 CCPr.

8. The regulation of free legal assistance is provided for in the LAA.

9. Cost free access is dealt with in Arts. 855 to 871 CCPr.

10. Art. 10 LAA and Art. 855(2) CCPr. respectively.

11. See NILR (1976), p. 43 et seq.

12. 1975 Bill.

13. Parliamentary Papers 1975–1976, no. 12974.

14. 1980 Draft Bill.

15. It is felt that the existing system no longer meets the needs of the modern welfare state.

16. The situation will be similar to the situation provided for in Order 23, I. 1(1) of the English Rules of the Supreme Court. According to that provision, where “having regard to all the circumstances of the case, the court thinks it just to do so, it may order the plaintiff to give such security for the defendant's costs of the action …”.

17. The 1975 Bill makes an exception for cases concerning the application of the Aliens Act and the Extradition Act. The authors of the Bill considered the requirement that an alien should be, or should have been, resident or domiciled in the Netherlands in order to qualify for assistance in accordance with the 1957 Act, less jusitifed in those administrative cases which are concerned with the application of the Aliens Act. In most instances the initiative for the case is the question whether the alien is permitted to be in the Netherlands. These criteria were not considered fair with regard to aliens who have tried in a proper manner to arrange a residence permit before leaving for the Netherlands, and in doing so have become ensnared in legal disputes with the Dutch Government. These aliens would then be worse off than immigrants residing in the Netherlands illegally. These considerations led to the Minister's suggestions to abolish every restriction from the 1957 Act for cases concerned with the application of the Aliens Act. For this purpose these cases were distinguished from the effect of the residence criterion in the proposed new Article 10. In the interest of the optimal co-ordination between the policies concerned with work permits and residence permits, the Minister considered that the Work Permits for Aliens Act and the Employment of Aliens Act – a draft which is soon expected – should be brought into line with the Aliens Act. The proposal, which is contained in the bill, aims at further expansion and therefore also deals with cases concerned with work permits. A similar expansion has also been added for cases concerning the Extradition Act. Correspondingly these considerations also apply to the new proposed Art. 855(2) CCPr.

18. The alteration of Art. 855(2) CCPr. should be seen as a provisional regulation. The Minister has stated that he is working on the preparation of a bill for a more general alteration of the 1957 Act. This bill will also contain provisions concerned with cost free access to the court.

19. This Resolution can be found in Forward in Europe, Legal Supplement No. 14 (July 1976).

20. Including the residence criterion.

21. See the italicized words in the Articles on p. 288.

22. Art. 3(1).

23. Art. 1, sub d.

24. Art. 1, sub d.

25. Art. 3(1).

26. Art. 21(1), in conjunction with Art. 10.

27. Resolution (76)5, to be found in Forward in Europe, Legal Supplement No. 14 (July 1976).

28. Legal News – B(76) 18 (03 30, 1976)Google Scholar.

29. The following provisions were added as an appendix to the resolution:

Part I – Legal aid in court proceedings

(1) No one should be prevented by economic obstacles from persuing or defending his right before any court determining civil, commercial, administrative, social or fiscal matters. To this end, all persons should have a right to necessary legal aid in court proceedings. When considering whether legal aid is necessary, account should be taken of:

(a) a person's financial resources and obligations;

(b) the anticipated cost of the proceedings.

(2) Legal aid should be available even where a person is able to pay part of the costs of his proceedings. In that case, legal aid may be available with a financial contribution by the assisted person which shall not exceed what that person can pay without undue hardship.

(3) Legal aid should provide for all the costs necessarily incurred by the assisted person in pursuing or defending his legal rights and in particular lawyers' fees, costs of experts, witnesses and translations.

It is desirable that, where legal aid is granted, there should be exemption from any requirement for security for costs.

(4) It should be possible for legal aid to be obtained in the course of the proceedings, if there is a change in the financial resources or obligations of the litigant or some other matter arises which requires the granting of legal aid.

(5) Legal aid should always include the assistance of a person professionally qualified to practice law in accordance with the provisions of the state's regulations, not only where the national legal aid system always of itself so provides, but also:

(a) when representation by such a person before a court of the state concerned is compulsory in accordance with the state's law;

(b) when the competent authority for the granting of legal aid finds that such assistance is necessary having regard to the circumstances of the particular case.

The assisted person should, so far as is practical, be free to choose the qualified person he wishes to assist him. The person so appointed should be adequately remunerated for the work he does on behalf of the assisted person.

(6) When considering whether legal aid should be granted, the authorities may:

(a) take into consideration, having regard to the circumstances of the particular case, whether or not it is reasonable for proceedings to be taken or defended;

(b) take account of the nature of the proceedings and, if need be, grant aid only for costs other than those relating to assistance by a qualified person as referred to in principle 5.

(7) The legal aid system should provide for a review of a decision to refuse a grant of legal aid.

(8) The responsibility for financing the legal aid system should be assumed by the state.

(9) The limits of financial eligibility for legal aid should be kept under review, especially having regard to rises in the cost of living.

(10) The legal aid system should provide for the granting of legal aid, in accordance with the principles contained in the present resolution, in any proceedings for the recognition or enforcement of a decision in the state concerned of a decision given in another state.

Part II – Legal advice

(12) The state should ensure that a person in an economically weak position should be able to obtain necessary legal advice on all questions arising out of the matters mentioned in principle 1, which may affect his rights or interests.

(13) Legal advice should be available either free or on payment of a contribution dependent on the resources of the person seeking the advice.

(14) The state should ensure that information on the availability of legal advice is given to the public and to those to whom a person in need of legal advice may turn for help.

(15) The state should take appropriate steps to see that such information on the legislation of the state as is necessary is available to advice-giving agencies.

(16) The state should pay particular attention to the need for legal advice when proceedings may have to be taken in another state.

30. Council of Europe, ETS 93, December 1977.

31. Chapter I.

32. Chapter II.

33. Preliminary Document to the XIV session of the Hague Conference on Private International Law Commission II. (Prel. Doc.) No. 1 p. 3.

34. See NILR (1980) p. 401.

35. Arts. 17, 18 and 19, respectively.

36. Prel. Doc. No. 5 p. 60.

37. Möller, Final Report, p. 36.

38. Möller, Report, Prel. Doc. No. 5 p. 60.

39. p. 37.

40. Analytical Survey of the observations of governments on the draft provisions for the revision of Chapters III to VI of the Hague Convention on Civil Procedure, Prel. Doc. No. 6 p. 14.

41. Analytical Survey, addendum I, Prel. Doc. No. 6, add. I p. 5.

42. Supplementary Report, Prel. Doc. No. 7 p. 6.

43. Final Report, p. 37.

44. Proces Verbal (PV) No. 14, point 22.

45. NILR (1980) pp. 402–3 gives the text of Arts. 15 to 17 as they were finally formulated in the Convention on the International Access to Justice.

46. Möller, Final Report, p. 7. However, he does not indicate to which difficulties he was specifically referring.

47. Cf., Möller, Final Report, p. 7.

48. 23 January 1975, DIR/jur. (74)5; Directorate of Legal Affairs.

49. These countries were Belgium, Denmark, the Federal German Republic, France, Great Britain, Italy, Luxembourg, the Netherlands, Norway, Austria, Turkey, Sweden and Switzerland.

50. These were the countries listed in n. 49 in addition to Greece, Ireland, Portugal, and, as observers, Canada and Finland.

51. Government responses to the questionnaire relating to legal aid and legal consultation, Strasbourg, 1978; this publication was added as annex 1 to Prel. Doc. 1.

52. Prel. Doc. No. 2.

53. Australia, Israel, Japan and Spain responded to this questionnaire; see Prel. Doc. No. 3.

54. This agreement was immediately ratified by Belgium, Greece, Great Britain, Luxembourg, Norway, Sweden, France, Portugal and Turkey: see Annex 3, Prel. Doc. No. 1.

55. Prel. Doc. No. 1, February 1979.

56. Prel. Doc. No. 5 p. 38.

57. The French expression assistance judiciaire could not give rise to any misunderstanding on this point.

58. Prel. Doc. No. 5 p. 40.

59. Möller stated in his Final Report, p. 10: “The words ‘legal aid for court proceedings’ should be understood to cover any form of legal services which the Contracting State where legal aid is sought, i.e., the State in which court proceedings are or have been commenced grants to its own nationals who are habitually resident in its territory”.

60. PV No. 2.

61. Final Report, p. 9.

62. Möller, Final Report, p. 13.

63. Möller wrote in his Final Report, p. 13: “The aim of the Convention is not to harmonize the national arrangements of legal advice in the different States but to put those foreigners covered by article 1, when they are present in the State where advice is sought, on an equal footing with persons who are nationals of and habitually resident in that State.”

64. See NILR (1980) pp. 401–2.

65. PV No. 13.