Tuesday 17 March 2015

Is the EU coming to save legal aid, or to bury it? An assessment of negotiations on the proposed Directive

by Claire Perinaud (FREE Group Trainee)

For many people facing criminal charges, legal aid is essential if they wish to defend themselves effectively. The EU is planning to adopt legislation on this issue in the near future. But will it actually make a significant contribution to ensuring suspects’ rights in this area?

State of implementation of the Procedural rights roadmap.

After years of unsuccessful attempts, starting in 2004 with a general Commission proposal on procedural rights, it was only from the end of 2009 that the EU legislation on procedural rights for suspects and accused persons in criminal proceedings has progressively taken shape. This was due to the entry into force of the Treaty of Lisbon (TFEU art. 82(2) now confer the power to adopt legislation on this issue), to article 47 of the Charter of Fundamental Rights (providing for the right to a fair trial) and to a political “roadmap” by which, in November 2009 the Council relaunched the Commission original proposals following a step-by-step approach instead of trying to adopt comprehensive legislation as initially foreseen in 2004.

However it is more than likely that this pragmatic approach and the transition from unanimity to qualified majority voting of the EU Member States in the Council (as from the entry into force of the Treaty of Lisbon) has made possible the adoption in co-decision with the European Parliament of the three first legislative measures on suspects’ rights: Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings; Directive 2012/13/EU on the right to information in criminal proceedings; and Directive 2013/48/EU on the right of access to a lawyer in criminal proceedings.

Building on this success, at the end of November 2013 the Commission proposed a second “package” of suspects’ rights measures, comprising: a directive on procedural safeguards for children who are suspected or accused in criminal proceedings; a recommendation on procedural safeguards for vulnerable people suspected or accused in criminal proceedings; a directive strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings; a directive on the right to provisional legal aid for citizens suspected or accused of a crime; and a recommendation on the right to legal aid for suspects or accused persons in criminal proceedings.

In 2014 the Council already reached a general approach on the proposal for a directive on procedural safeguards for children and on the directive on the presumption of innocence. On this basis the dialogue between the Council and the European Parliament (EP) is about to start and it is possible that in the coming months an agreement could be reached so that these texts could be adopted already at the EP’s “first reading”.

Last week the Council reached (after eight months of internal negotiations!) a
general approach also on the draft Directive on provisional legal aid for persons deprived of liberty in criminal proceedings and will start in the coming weeks the dialogue with the Parliament also on this text.  

The coming months will then be extremely important for EU procedural rights in criminal matters even if it will not be easy to achieve the high results that the European Parliament and some Member States were expecting. In the absence of the energetic push of the former Commission Vice President Reding there is a risk that the negotiations may achieve the lowest common denominator between the Member States also due to the unwillingness of some of them to adopt any EU legislation which can create further financial and internal institutional tensions.

Legal aid : why make it simple when you can make it tricky ?

The draft Directive on legal aid is probably the text which is currently facing the most adverse winds. Already the initial Commission’s political choice not to deal with legal aid in the Directive on the access to lawyer has created an artificial disconnection from the right to legal aid and the more general “right to legal advice” which is required by the ECHR jurisprudence as well as by the EU Charter (Articles 47 and 48). (On the human rights aspects of the right to legal aid, see the annex).

Instead of tabling a proposal that would cover these two interconnected rights, the Commission chose to come forward with a proposal on the right to access to a lawyer (now Directive 2013/48/EU) and, separately, with this proposal, which is intended however only as a partial complement to the 2013 Directive. In the words of the Commission, “the … proposal is closely linked to Directive 2013/48/EU on the right of access to a lawyer and it aims to contributing to rendering effective the right on access to a lawyer provided for in that Directive at the early stages of the proceedings for suspects or accused persons deprived of liberty”. Thus, no general rules on legal aid, but a mere stop-gap to ensure that in the very early phase of the proceedings some form of legal aid is provided.

Even worse, on the same day that the Commission transmitted its proposal to the European Parliament and to the Council, the Commission adopted a non-binding Recommendation on the right to legal aid for suspects or accused persons in criminal proceedings . The aim of this Recommendation is “to foster certain convergence as regards the assessment of eligibility of legal aid in the Member States, as well as encouraging the Member States to take action to improve the quality and effectiveness of legal aid services and administration“.

The legal basis of the Recommendation aside, its understanding of the implementation of the right to legal aid in criminal proceedings is broader than that of the draft Directive.
According to the Recommendation the right of legal aid has to be guaranteed to any suspect or accused person “from the time they are made aware, by official notification or otherwise, by the competent authorities, that they are suspected or accused of having committed a criminal offence, and irrespective of whether they are deprived of liberty”, by putting forward the purpose of the right to legal aid, namely to complement and render effective the right of access to a lawyer as set out in Directive 2013/48/EU of the European Parliament and of the Council.

The work in the Council

The Council started examination of this proposal only in July 2014 under the Italian Presidency. However, no agreement was found and at the December 2014 Justice and Home Affairs Council only a “state of play” was presented to Ministers. At the JHA Council on 12-13 March the Council agreed its general approach. Its position shows some significant differences compared to the initial Commission proposal which, as outlined above, was already unambitious:

o a wide possibility for Member States to introduce exceptions to the application of the right to provisional legal aid for minor offences (not further defined) (Article 2 (3));

o a further possibility for Member States to subject the admission to provisional legal aid to discretionary criteria if this refers to “less serious offences” (once again, undefined) (Article 4 (2bis));

o the elimination of the possibility to access provisional legal aid in European Arrest Warrant proceedings as far as legal assistance in the issuing Member State is concerned (Article 5 (2) of the Commission proposal).

In substance, Member States are left free to define the scope of application of the (limited) right to provisional legal aid, with all but the most serious offences as possible exceptions.

It is difficult, in light of this result, to find any real added value in the text provisionally agreed by the Council. This view is shared by a number of delegations (such as France, Spain, Italy, Portugal, Belgium), which, in the course of the Council debate, have made reference to the intention of subscribing a declaration, to be added to the minutes of the Council, in which they express their disappointment. However, these delegations have not blocked the adoption of the general approach, preferring instead to proceed with the legislative procedure and with the negotiations with the European Parliament.

These will be anything but easy: a rapid overview of the amendments tabled by the EP Rapporteur Dennis De Jong (LIBE Committee) and by the other MEPs of the Committee show two widely diverging views of what this Directive should be about. LIBE will vote its “orientation” on April 14 and dialogue can then start. So it is too early to say now if the EP will succeed in enhancing this right (maybe by taking inspiration from the Commission’s Recommendation and translating its content into a binding text).

[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).



FURTHER READING : Sources of the right to legal aid

The importance of the right to legal aid is linked with the right to an effective remedy and to a fair trial. Indeed as an ancillary right, it enshrines the principle of effective judicial protection and the right to access to justice, which is of primary importance in line with Human Rights declarations applicable in Europe.

Because of its ancillary dimension, the respect for the right to legal aid is provided for in a number of international instruments of utmost importance. It is guaranteed by Article 14 (3) of the International Covenant on Civil and Political Rights (ICCPR), and the fundamental principles on which it should be based are outlined in the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems adopted on 20 December 2012 by the General Assembly.

Article 6 (3)(c) of the European Convention on Human Rights (ECHR) sets out a “right to legal assistance where the defendant has insufficient means to pay for legal assistance, and to get free legal aid when the interest of justice so requires”.

Concerning the European Union as such, since the entry into force of the Treaty of Lisbon, the EU Charter has bound the EU institutions. Yet, Article 47(3) of the European Union Charter of Fundamental rights provides that “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”. Even implicitly, the need to provide for legal aid can be drawn from some other dispositions of the Charter such as Art. 48 (2), which states that “Respect for the rights of the defence of anyone who has been charged shall be guaranteed”.

Furthermore, the respect for the right to legal aid guaranteed by article 47(3) of the EU Charter has to be understood in light of the ECtHR case-law, which contributes to add to the strict procedural side of legal aid a more substantial element, through the requirement of enabling each suspect to present his or her case properly.

To assess the respect of this requirement, the ECtHR held in the case of Airey v. Ireland that the effectiveness of the right to access to justice throughout the right to free legal aid depends mostly on whether the individual in question would be able to present his/her case properly and satisfactorily without the assistance of a lawyer. Circumstances in which legal representation would be necessary for ensuring access to justice could be the complexity of the procedure before the court of first instance and complexity of the legal points involved. This assessment must also take into account personal circumstances of the applicant and the form of legal aid in question.
Therefore the right to legal aid can be limited as far as it is justified by a legitimate aim and that if there exists a reasonable relationship of proportionality between the limitation and the legitimate aim sought.

Barnard & Peers: chapter 26


  1. Readers wanting to know more might want to take a look at the Open Society Justice Initiative's new briefing paper summarizing the current minimum international legal standards on the right to legal aid: http://www.opensocietyfoundations.org/briefing-papers/legal-aid-europe-minimum-requirements-under-international-law

    Also, a handy series of fact sheets summarizing how legal aid works currently in 9 EU countries: http://www.opensocietyfoundations.org/fact-sheets/legal-aid-belgium

    Best wishes, Jonathan Birchall, Open Society Justice Initiative

  2. Thanks for this article. I've been out of UK immigration law for some time and am refreshing myself with various aspects of the law, legal aid and EU free movement. Thanks