A Tale of Two Cases and a Story Yet Untold: Access to Justice and Legal Advice under the Civil Limb of Article 6 ECHR

The proposition that universal access to justice should be a guiding aim of any system of law is, today, commonly recognised. Less clear, however, is what the implementation of this principle should entail in practice if a party cannot afford legal assistance. This article explores the role European human rights law can play in narrowing the asymmetry of access to justice under Article 6(1) of the European Convention on Human Rights. The protective ambit of the civil limb of Article 6 currently encompasses a limited right to legal assistance once proceedings regarding the determination of civil rights or obligations are underway. It does not, however, protect an ex‐ante right to know whether a determination about civil rights or obligations falls due, ie it does not include a right to legal advice per se. Based on a re‐assessment of two key decisions, rule of law imperatives and insights from capability theory, I show how and why it should extend to include such a limited right.