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Legal aid in criminal proceedings

Legal aid in criminal proceedings

 

SUMMARY OF:

Directive (EU) 2016/1919 guaranteeing legal aid for suspects and accused persons in criminal proceedings

WHAT IS THE AIM OF THIS DIRECTIVE?

It establishes common minimum rules concerning the right to legal aid* in criminal proceedings across the EU.

It sets clear criteria for granting legal aid, quality standards and remedies in case of breach.

It complements EU rules on access to a lawyer and on procedural safeguards for children who are suspected or accused of crimes and does not affect the rights they define.

KEY POINTS

Scope

The rules apply to the following:

  • suspects and accused persons in criminal proceedings who are:
    • deprived of liberty;
    • required to be assisted by a lawyer in accordance with EU or national law and cannot afford it; or
    • required or permitted to attend an investigative or evidence-gathering act, including as a minimum the following: identity parades (a row of people, including a person who is believed to have committed a crime, who are shown to a witness for identification), confrontations, reconstructions of the scene of a crime; and
  • persons faced with a European arrest warrant (EAW).

They apply to all EU citizens and to all EU countries except Denmark, Ireland and the UK.

Right to legal aid in criminal proceedings

EU countries:

  • must ensure that suspects and accused persons who lack sufficient resources to pay for the assistance of a lawyer have the right to legal aid when the interests of justice so require;
  • may apply different test to determine whether legal aid is to be granted:
    • a means test (based on the resources of the person concerned, including income and fortune) and/or;
    • a merits test (based on the need to ensure effective access to justice in the circumstances of the case);
  • must respect the criteria set out to establish these tests, in particular that the merit is deemed to exist where the person is brought before a court for a decision on detention and during detention;
  • must grant legal aid without undue delay and — at the latestbefore the person concerned is questioned by the police, by another law enforcement authority or by a judicial authority, or before the specific investigative or evidence-gathering acts are carried out.

Right to legal aid in EAW proceedings

Requested persons* have a right to legal aid:

  • from the executing EU country*, upon arrest until they are handed over to the issuing EU country*, or until the decision not to surrender them becomes final;
  • from the issuing country, when they exercise their right to appoint a lawyer in the issuing country to assist the lawyer in the executing country in accordance with EU rules on the right of access to a lawyer, in so far as legal aid is necessary to ensure effective access to justice.

This right may be subject to a means test under the same criteria as for criminal proceedings.

Decision, remedy and vulnerable persons

Suspects, accused persons, and requested persons must:

  • be informed in writing if their request for legal aid is refused;
  • have an effective remedy under national law in the event of a breach of their rights under the directive;
  • see their particular needs taken into account if they are vulnerable.

FROM WHEN DOES THE DIRECTIVE APPLY?

It has applied since 24 November 2016 and has to become law in the EU countries by 5 May 2019.

BACKGROUND

This directive is the sixth and last of a package of legal instruments adopted in line with the EU Roadmap to strengthen procedural rights of suspected or accused people in criminal proceedings published in 2009.

For further information, see:

KEY TERMS

Legal aid: for the purposes of this directive, funding by an EU country to provide a lawyer, allowing those individuals who do not have the resources to cover the costs of proceedings, access to one.
Executing country: in the context of an arrest warrant, the country which is asked by another country to arrest and surrender a person sought for a criminal prosecution or a custodial sentence.
Requested person: in the context of an arrest warrant, the person which is sought for criminal prosecution or a custodial sentence and whose arrest and surrender is requested to another country.
Issuing country: in the context of an arrest warrant, the country which is asking another country to arrest and surrender a person sought for a criminal prosecution or a custodial sentence.

MAIN DOCUMENT

Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (OJ L 297, 4.11.2016, pp. 1-8)

Successive amendments to Directive (EU) 2016/1919 have been incorporated into the original document. This consolidated version is of documentary value only.

RELATED DOCUMENTS

Charter of Fundamental Rights of the European Union — Title VI — Justice Article 47 — Right to an effective remedy and to a fair trial (OJ C 202, 7.6.2016, p. 403)

Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings (OJ L 132, 21.5.2016, pp. 1-20)

Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ L 294, 6.11.2013, pp. 1-12)

Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (OJ C 295, 4.12.2009, pp. 1-3)

last update 14.05.2018

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