Legal aid in Austria

Answers for the Austrian Independent Administrative Tribunals

Questionnaire on legal aid

Conference in Palermo on 12th and 13th November 2009

I./ Procedural aspects

1./ Who decides whether legal aid is granted to a party? The Judge assigned to the case.

2./ Is it possible to challenge this decision? Yes. Extraordinary appeal.

3./ Is it possible to obtain legal aid already during the administrative procedure? No.

4./ Is legal aid valid for the whole procedure, legal remedies included or is decided separately for each level of the law suit? Separately for each level of the law suit.

5./ Do applications for legal aid have any impact on the course of the procedure, in particular on the run out of time limits (f.e. for legal remedies)? Yes, time limits for lodging the appeal are interrupted.

II./ Prerequisites for legal aid

1./ Financial means

a./ Are there thresholds concerning income ruled by law or by court practice? Yes, by court practice.

b./ Are there also such thresholds for real estates and other values? Yes.

c./ Are there special rules for legal entities (societies, associations)? No, because legal aid is only granted to natural persons, since they are the only ones addressed by the acts which are subject of an appeal.

2./ Is the possible outcome of the case of relevance for granting legal aid? No, but see answer to the next question.

3./ Are there other criteria for granting or refusing legal aid? Only in the sense, that it is pertinent, that the case is in some sense complex or the fine reaches a certain amount.

III./ Benefits

1./ What kinds of costs are covered by legal aid? Only costs of the legal counsel.

a./ Court fees No

b./ Costs of witnesses, interpreters and experts No

c./ The party’s travel expenses No

d./ Advocates or other representatives Only for the advocate.

d.a./ Under which conditions are advocates or other representatives at the disposal of the beneficiary in order to represent him in the lawsuit? Advocate must agree.

d.b./ How are these advocates or other representatives selected? Has the party any influence in this selection procedure? They are selected by the representative body of lawyers. But the party also can select an advocate.

d.c./ Who covers the costs for these advocates or other representatives? The state.

e./ Has legal aid an influence on the obligation of the beneficiary to refund certain expenses of opposing parties if he finally looses the case? No.

IV./ Can legal aid be revoked? No.

1./ Under which conditions is it possible to revoke legal aid?

2./ Can it be revoked even retroactively and can recovery of the state’s expenses be ordered? Which are the conditions for such a decision?

3./ Are there time limits for such decisions?

V./ Practical importance of legal aid

1./ What is the percentage of cases with legal aid in general? It is a negligible quantity.

2./ Are there any scopes of administrative law where legal aid is of special importance? What is the percentage of cases with legal aid in these particular fields of administrative law? Since the number of cases where legal aid is applied for and granted is so small it is not possible to make any pertinent statement to this question.

Answers for the Austrian Administrative Court (Verwaltungsgerichtshof)

Q

I./ Procedural aspects

1./ Who decides whether legal aid is granted to a party? 
A single judge (not a penal of three or five judges).

2./ Is it possible to challenge this decision? 
No, as the Administrative Court acts as final instance.

3./ Is it possible to obtain legal aid already during the administrative procedure? 
No.

4./ Is legal aid valid for the whole procedure, legal remedies included or is decided separately for each level of the law suit? 
Legal aid can be granted to different extents, e.g. by attributing a lawyer or by the simple dispensation from the court fee.

5./ Do applications for legal aid have any impact on the course of the procedure, in particular on the run out of time limits (f.e. for legal remedies)? 

Yes, time limits for lodging the complaint to the Administrative Court are interrupted.


II./ Prerequisites for legal aid

1./ Financial means

a./ Are there thresholds concerning income ruled by law or by court practice? 
Yes, by court practice.

b./ Are there also such thresholds for real estates and other values? 
Yes, also defined by court practice.

c./ Are there special rules for legal entities (societies, associations)? 
Art. 61 § 1 of the Administrative Court Act (Verwaltungsgerichtshofgesetz) concerning legal aid refers to the regulations of civil procedure. According to art. 63 of the Civil Procedure Act (Zivilprozessordnung) - amended in 2009 - legal aid can only be provided to natural persons.

2./ Is the possible outcome of the case of relevance for granting legal aid? 
According to art. 63 of the Civil Procedure Act legal aid cannot be granted if the intended legal action is "obviously unwinnable".

3./ Are there other criteria for granting or refusing legal aid? 
Only in the sense, that it is pertinent, that the case is in some sense complex or the fine reaches a certain amount.

III./ Benefits

1./ What kinds of costs are covered by legal aid? 
Costs of the legal council, of court fees, fees for witnesses, experts or interpreters and necessary cash expenditures of the legal council (or other representative) can be covered by legal aid. (That depends on the granted extent of legal aid.) See art. 64 of the Civil Procedure Act.

a./ Court fees 
See above.

b./ Costs of witnesses, interpreters and experts 
See above.

c./ The party’s travel expenses 
No.

d./ Advocates or other representatives 
Both possible.

d.a./ Under which conditions are advocates or other representatives at the disposal of the beneficiary in order to represent him in the lawsuit? 
advocates: if the representation by an advocate is legally necessary (i.e. for filing a complaint to the Administrative Court; cf. art. 24 § 2 Administrative Court Act)
other representatives: not practical in the Administrative Court procedure

d.b./ How are these advocates or other representatives selected? Has the party any influence in this selection procedure? 
They are selected by the representative body of lawyers. But the party also can declare a personal preference for a certain lawyer.

d.c./ Who covers the costs for these advocates or other representatives? 
The Republic of Austria (mainly through a backup to the retirement pensions of lawyers). 

e./ Has legal aid an influence on the obligation of the beneficiary to refund certain expenses of opposing parties if he finally looses the case? 
No.

IV./ Can legal aid be revoked? 
No.

1./ Under which conditions is it possible to revoke legal aid?

2./ Can it be revoked even retroactively and can recovery of the state’s expenses be ordered? Which are the conditions for such a decision?

3./ Are there time limits for such decisions?

V./ Practical importance of legal aid

1./ What is the percentage of cases with legal aid in general? 
In this respect there are significant differences between the different penals of the Administrative Court. In the fields of asylum and migration law, for example, applications for legal aid are frequent. (In my case - working in migration law - the ratio between complaints and applications for legal aid [separate from complaints] is about 2 : 1 in 2009 so far, for the whole Court the ratio is about 6 : 1. - Georg Lukasser)

2./ Are there any scopes of administrative law where legal aid is of special importance? What is the percentage of cases with legal aid in these particular fields of administrative law? Since the number of cases where legal aid is applied for and granted is so small it is not possible to make any pertinent statement to this question.
See above.