LEAP Annual Conference, 5-6 February 2016

5 FEBRUARY (pm) – BRUSSELS UPDATE / EUROPE FOCUS

WORKSHOP A: LEGAL AID

Background

Whereas the Roadmap originally foresaw a measure jointly covering access to a lawyer and legal aid, the pragmatic choice was made to de-couple the two, with Member States pressing ahead with access to a lawyer following the Salduz v. Turkey decision of the ECtHR, enshrining the right of access to a lawyer as from the first police interrogation. The resulting Directive 2013/48/EU included a single provision indicating Member States should ensure effective systems of legal aid.

The complementing Directive providing legal aid has not yet been agreed on, as there is an ongoing controversy regarding the scope of the Directive (a). Thearticles of the provision that concern legal aid in cases involving an European Arrest Warrant (EAW) are less controversial, and agreement on these between the relevant institutions is likely to be achieved sooner (b).

(a)Scope of the Directive

The ‘deprivation of liberty’ criterion

There is an ongoing discussion between the institutions regarding the scope of the Directive. The Commission originally proposed that the Directive should apply on for persons who are deprived of liberty. The Parliament argues that the Directive should benefit all suspects and accused, irrespective of any deprivation of liberty. Fair Trials has argued that the Directive should apply to all persons (like the Access to a Lawyer Directive). But we are keen to hear from LEAP as to situations which show why persons not deprived of liberty need legal aid, e.g. because they are vulnerable, at risk of incriminating themselves or because they are liable subsequently to become deprived of liberty.

Questions for discussion

  • What do you think of this deprivation of liberty criterion?
  • Can you give examples of situations where a person is questioned when at liberty, and subsequently becomes deprived of liberty?

Provisional / ordinary legal aid

The initial proposal with this Directive was to establish a requirement for ‘Provisional legal aid’, i.e. legal aid provided from the first hearing by the police until local authorities have decided if the individual is eligible for ‘ordinary legal aid’ under national law. This view is supported by the Council emphasising high cost of legal aid in particular for some Member States if the Directive applied more broadly. The Parliament resisted this and argued that the Directive should cover ordinary legal aid too. Fair Trials has argued that provisions should be included in the directive to regulate quality of legal aid services provided, as LEAP members have repeatedly emphasised the need for substantive reform in the national legal aid mechanism, as very low legal aid fees are directly undermining a high quality of defence for many suspects.

Questions for discussion

  • What are the main areas where reform is needed of the legal aid system?
  • Do the solutions lie in training / quality control or is it a question of fees?

(b)Legal aid in cases involving an European Arrest Warrant (EAW)

The Directive also covers legal aid in EAW cases. This aspect of the Directive is currently the focus of negotiations, ensuring some progress can be made during the Dutch Presidency which is otherwise firmly against the measure, and will certainly resist any expansion beyond the bare minimum.

The kick-off point

The Commission’s proposal envisages in Art. 5 that the requested person has the right to legal aid upon arrest pursuant to an EAW until surrender or, in cases of non-surrender, when the decision as to surrender becomes final.Council supports the kick-off point of ‘upon arrest pursuant to an EAW’ proposed by the Commission(noting that the Access to a Lawyer Directive ensures a right to a lawyer from that point). It further argues that . Parliament, however, is keen to broaden the scope of the Directive to apply once the EAW has been issued, or has suggested lately that it could apply as from the point when an EAW is notified to the requested person.A key concern is that Council seems to be assuming that there is an inherent link between deprivation of liberty and legal aid.

Questions for discussion

  • Do EAW procedures in the executing state always begin with arrest?
  • Is legal aid in EAW cases in any way linked to the person being deprived of liberty pending surrender?

Issuing state legal aid

Members of the LEAP network have emphasised in different occasions the critical importance of (legal aid) defence counsel for the suspect/accused collaborating in issuing and executing countries to ensure that defence rights are safeguarded in all countries involved in cross-border cases.

Under the Commission’s proposal, the issuing state shall ensure that, if a person exercises their right to appoint a lawyer in the issuing state under Article 10 of Directive 2013/48/EU, the requested person has the right to legal aid in that Member State. Council argues that the lawyer in the issuing state, under the Access to a Lawyer Directive, has a merely supporting role and that this should not create a legal aid obligation on the issuing Member State.

Questions for discussion

  • What kind, if any, legal aid is provided to pay for the services of a lawyer in the issuing state to investigate/research any parts of the case in the issuing states? Which Member State currently pays for this? Is it sufficient?