In Switzerland, all individuals are entitled to a fair trial and assistance in defending themselves. The request for legal aid embodies these rights for those unable to finance legal proceedings.
However, a question arises in the context of legal aid: must the designated legal advisor necessarily be a lawyer registered in a cantonal registry?
General Provisions
Legal aid is a constitutional right provided by Article 29, Paragraph 3 of the Swiss Constitution.
A request for legal aid involves seeking financial assistance from an authority to be exempt from court fees and, if necessary, to be represented in court by a legal advisor.
The law does not specify whether the legal advisor must be a lawyer registered in a cantonal registry or if any person with basic legal knowledge, without the necessary qualifications, can represent the applicant in court.
Administrative Procedure
In administrative procedure, Article 11 of the Administrative Procedure Act (PA) does not reserve representation in court solely to lawyers (Benoît Chappuis, Jérôme Gurtner, La profession d’avocat, N 124).
Regarding legal aid specifically, Article 65 PA outlines the conditions that must be met. The grant of legal aid requires several conditions: the party must not have sufficient resources, and their claim must not be doomed to failure. Furthermore, to obtain the designation of a lawyer, it must be required to safeguard the party's rights. However, this article does not specify the qualifications required for the "designated lawyer" in the context of legal aid. At the cantonal level, Article 18 of the LPA-VD adopts the conditions set by Article 65 PA and refers to the provisions governing legal aid in civil matters (RAJ).
Application of RAJ
In principle, when the applicant designates their representative, that representative is appointed (Art. 1, para. 2 RAJ). However, according to the regulations on legal aid in civil matters (which apply by analogy to administrative cases according to Art. 18, para. 5 LPA-VD), the appointed legal advisor must be either a lawyer, a certified legal representative, or a trainee in these professions.
Jurisprudence of the Federal Court
According to the applicable regulations, if the representative is not a lawyer (i.e., registered in a cantonal registry) or a certified legal representative, legal aid cannot be granted (ATF 125 Ia 161). Moreover, according to the Federal Court, limiting this activity ensures effective protection of the applicant’s rights, aligning with the condition required to obtain legal aid.
Conclusion
The freedom allowed in administrative procedures to choose one’s representative is restricted in the context of a request for legal aid.
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