by Claire Perinaud (FREE Group Trainee)

Access to legal aid is crucial for individuals facing criminal charges, enabling them to mount a proper defense. The EU is developing legislation to address this right, but its impact remains uncertain.

Progress of the Procedural Rights Roadmap

EU legislation concerning the procedural rights of suspects and accused individuals in criminal cases has been developing gradually since late 2009, following years of unsuccessful attempts. This progress stemmed from the Treaty of Lisbon, Article 47 of the Charter of Fundamental Rights, and a political roadmap initiated by the Council in 2009. These developments enabled a shift from comprehensive legislation to a step-by-step approach, focusing on individual rights.

This practical approach and the adoption of qualified majority voting facilitated the passage of the first three legislative measures on suspects’ rights. These addressed the right to interpretation and translation in criminal proceedings, the right to information, and the right to access a lawyer.

Capitalizing on this success, the Commission introduced a second set of measures in late 2013. This package encompasses directives on procedural safeguards for children and provisional legal aid, a recommendation on safeguards for vulnerable suspects, and directives concerning the presumption of innocence and the right to be present at trial.

By 2014, the Council had reached a general approach regarding the directives on procedural safeguards for children and the presumption of innocence. Dialogue between the Council and the European Parliament (EP) is underway, with potential agreement and adoption anticipated in the coming months.

Following eight months of internal discussions, the Council also achieved a general approach on the draft Directive concerning provisional legal aid for detained individuals. Dialogue with the Parliament on this matter is set to commence shortly.

While the coming months are pivotal for EU procedural rights in criminal matters, attaining the ambitious goals set by the EP and certain Member States presents a challenge. The absence of strong leadership from the former Commission Vice President and the reluctance of some Member States to adopt legislation that could lead to financial and institutional strains might result in settling for the lowest common denominator.

Legal Aid: A Straightforward Right Made Complex

The draft Directive on legal aid is encountering significant opposition. The Commission’s initial decision to address legal aid separately from the right to a lawyer created an artificial divide between legal aid and the more general right to legal advice. This separation contradicts the jurisprudence of the European Court of Human Rights (ECtHR) and the EU Charter (Articles 47 and 48).

Instead of presenting a proposal encompassing both interconnected rights, the Commission opted for a two-pronged approach. This approach involved a proposal on the right to access a lawyer (now Directive 2013/48/EU) and a separate, partial complement in the form of the current proposal. This latter proposal aims to ensure some form of legal aid is provided during the initial stages of proceedings for detained suspects or accused individuals, rather than establishing comprehensive legal aid regulations.

Furthermore, alongside the proposal, the Commission adopted a non-binding Recommendation on the right to legal aid. This Recommendation aims to promote convergence among Member States regarding legal aid eligibility and encourage improvements in the quality and effectiveness of legal aid services.

Despite its non-binding nature, the Recommendation offers a broader interpretation of legal aid implementation in criminal proceedings compared to the draft Directive. It advocates for guaranteeing the right to legal aid from the moment individuals are informed they are suspected or accused of an offense, regardless of detention. This stance underscores the purpose of legal aid: to complement and ensure the effectiveness of the right to access a lawyer as defined by Directive 2013/48/EU.

The Council’s Deliberations

The Council commenced its review of the proposal in July 2014 under the Italian Presidency. However, no agreement was reached, and a progress report was presented to Ministers in December 2014. During the March 2015 meeting, the Council agreed on a general approach, which deviated significantly from the Commission’s initial proposal:

• Member States have the option to introduce exceptions to the application of provisional legal aid for minor offenses, leaving the definition of such offenses open to interpretation (Article 2(3)).
• Further discretion is granted to Member States to apply criteria for granting provisional legal aid for less serious offenses, without a clear definition of these offenses (Article 4(2bis)).
• The provision allowing access to provisional legal aid during European Arrest Warrant proceedings for legal assistance in the issuing Member State is removed (Article 5(2) of the Commission’s proposal).

In essence, Member States retain significant leeway in determining the scope of the (limited) right to provisional legal aid, potentially excluding all but the most serious offenses.

Given this outcome, the added value of the Council’s provisional agreement is debatable. Several delegations, including France, Spain, Italy, Portugal, and Belgium, expressed their disappointment and considered issuing a formal declaration. However, they chose to proceed with the legislative process and engage in negotiations with the European Parliament.

These negotiations are expected to be challenging. The amendments proposed by EP Rapporteur Dennis De Jong (LIBE Committee) and other MEPs highlight widely divergent perspectives on the Directive’s objectives. With the LIBE committee vote on its “orientation” scheduled for April 14, followed by the commencement of dialogue, it remains uncertain whether the EP can strengthen this right, perhaps by incorporating elements of the Commission’s Recommendation into a legally binding text.

Reblogged from: http://free-group.eu/2015/03/16/legal-aid-in-criminal-proceedings-will-the-european-parliament-improve-the-councils-general-approach/

[See also: Steve Peers’ book chapter on EU law on legal aid in civil and administrative cases]
[Updates: the presumption of innocence Directive has been adopted (see later blog post here) and the Directive on child suspects’ rights has been agreed (see later blog post here).

NOTES

Annex

FURTHER READING : Sources of the right to legal aid

The right to legal aid is essential for the effective right to a remedy and a fair trial. As a supporting right, it underpins the principle of effective judicial protection and the right to access justice, considered paramount in European human rights declarations.

Given its supplementary role, the right to legal aid is enshrined in several significant international instruments. These include Article 14(3) of the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, adopted by the General Assembly in 2012.

Article 6(3)(c) of the European Convention on Human Rights (ECHR) establishes the “right to legal assistance… to get free legal aid when the interest of justice so requires."

Within the European Union, the EU Charter has been binding on EU institutions since the Treaty of Lisbon. Article 47(3) of this Charter states, “legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice”. The need for legal aid is also implied in other Charter provisions, such as Article 48(2), which guarantees the right to a defense for those charged with offenses.

Interpreting the right to legal aid guaranteed by Article 47(3) of the EU Charter requires considering the ECtHR case law. This case law adds a substantive element to the procedural aspect of legal aid, emphasizing the need for suspects to present their cases effectively.

In the case of Airey v. Ireland, the ECtHR determined that the effectiveness of the right to access justice, including free legal aid, hinges on whether an individual can adequately present their case without legal assistance. Factors like the complexity of legal procedures and arguments, personal circumstances, and the type of legal aid are considered when determining the necessity of legal representation. Therefore, limitations on legal aid are acceptable only if justified by a legitimate aim and if there is a reasonable proportionality between the limitation and the aim pursued.

Barnard & Peers: chapter 26