Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement 3.5.2 The right to free legal aid Article 14(3)(d) provides that in the determination of any criminal charge, everyone shall be entitled “to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it”. Article 6(3)(c) of the European Convention on Human Rights also provides for the right of a person not having “sufficient means to pay for legal assistance, to be given it free when the interests of justice so require”. Article 8(2)(e) of the American Convention refers back to the provisions of national law in this respect, while the African Charter on Human and Peoples’ Rights is silent on the question of free legal aid. Articles 20(4)(d) and 21(4)(d) of the respective Statutes of the International Criminal Tribunals for Rwanda and the former Yugoslavia have provisions similar to article 14(3)(d) of the International Covenant. For the granting of free legal aid, article 14(3)(d) of the International Covenant and article 6(3)(c) of the European Convention set two conditions: first, the unavailability of sufficient funds to pay for a lawyer and, second, that the interests of justice require such aid. As seen in the preceding subsection, the interests of justice would require the granting of legal aid in capital punishment cases where the accused wishes for such aid and cannot pay for it himself. Other less dramatic cases involving the interests of justice may of course also require the granting of free legal aid. ***** In a case concerning a constitutional appeal, the Human Rights Committee thus held that “where a convicted person seeking constitutional review of irregularities in a criminal trial has insufficient means to meet the costs of legal assistance in order to pursue his constitutional remedy and where the interests of justice so [require], legal assistance should be provided by the State”; such review would require a fair hearing and consistency with article 14(3)(d) of the Covenant.118 Consequently, article 14 was violated in a case where “the absence of legal aid ... denied the author the opportunity to test the irregularities of his criminal trial in the Constitutional Court in a fair hearing”.119 ***** The European Court has observed with respect to article 6(3)(c) of the European Convention that “the right of an accused to be given, in certain circumstances, free legal assistance constitutes one aspect of the notion of a fair trial in criminal proceedings”.120 In determining whether the interests of justice require the granting of free legal aid, the European Court has regard to various criteria, such as “the seriousness of the offence” committed, “the severity of the sentence” the accused person risks and “the complexity of the case”.121 Where the maximum sentence was 118 Communication No. 707/1996, P. Taylor v. Jamaica (Views adopted on 14 July 1997), in UN doc. GAOR, A/52/40 (vol. II), p. 241, para. 8.2. 119 Ibid., loc. cit. 120 Eur. Court HR, Case of Quaranta v. Switzerland, judgment of 24 May 1991, Series A, No. 205, p. 16, para. 27. 121 Ibid., p. 17, paras. 32-34; emphasis added. Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers 277