COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the Proposal for Measures on Legal Aid for Suspects or Accused Persons in Criminal Proceedings /* SWD/2013/0476 final */
TABLE OF CONTENTS Executive Summary Sheet............................................................................................................. 4 1........... Introduction.................................................................................................................. 6 2........... Policy context............................................................................................................... 7 3........... Procedure and consultation of
interested parties....................................................... 9 3.1........ Consultation of stakeholders........................................................................................... 9 3.2........ Studies and publications................................................................................................ 10 3.3........ Internal consultation and scrutiny
of the impact assessment............................................. 11 4........... Problem Definition..................................................................................................... 13 4.1........ General problem........................................................................................................... 13 4.2........ Specific problem and its underlying
causes..................................................................... 18 4.3........ The scale of the problem............................................................................................... 27 4.4........ Baseline scenario: How would the
problem evolve all things being equal?....................... 27 4.5........ Does the EU have power to act?................................................................................... 28 5........... Objectives.................................................................................................................. 30 6........... Policy Options............................................................................................................ 31 6.1........ Discarded options......................................................................................................... 31 6.2........ Overview of policy options........................................................................................... 32 6.3........ Detailed description of the
options................................................................................. 32 7........... Impact Analysis of Policy
Options............................................................................ 39 7.1........ Policy option 1: Status quo............................................................................................ 39 7.2........ Policy Option 2: Low level of
obligation........................................................................ 40 7.3........ Policy Option 3: Medium legal
obligations..................................................................... 41 7.4........ Policy Option 4: High level of
obligation........................................................................ 46 8........... Comparative Assessment.......................................................................................... 49 9........... Transposition, monitoring and
evaluation................................................................ 51 ANNEXES Annex I - Procedural Rights Roadmap........................................................................................ 54 Annex II - Text of the Directive on Access to
a Lawyer............................................................... 58 Annex III - ECtHR digest case-law on legal
aid in criminal proceedings........................................ 80 Annex IV - Detailed calculations on policy
options 3 and 4.......................................................... 85 Annex V - Comparative table on costs per Member
State: Options 3 and 4............................... 133 Annex VI - Legal Aid Spending in the Member
States and % of suspected/accused persons entitled to legal aid 137 Annex VII - Current standards on eligibility
testing in the Member States.................................... 140 Annex VIII - Moment at which the Right to
Legal Aid arises...................................................... 144 Annex IX - Examples of when lack of mutual
trust can hinder judicial cooperation...................... 146 Executive Summary Sheet Impact assessment on a Measure on Legal Aid to Suspected and Accused Persons in Criminal Proceedings A. Need for action Why? What is the problem being addressed? Mutual trust between Member States is undermined because there is insufficient protection of the right to legal aid of suspects or accused persons in the EU, despite the existence of common minimum standards stemming from the European Convention on Human Rights (ECHR). This lack of trust weakens judicial cooperation in criminal proceedings. Indeed, the right to legal aid is intrinsically linked to the right to legal assistance, which will become EU law with the adoption of the Directive on the right to access to a lawyer. This is so, since this right cannot be effective for persons without means unless the State provides legal aid ensuring legal assistance free of charge. There are two main underlying causes of this problem: 1) Insufficient access to legal aid in proceedings under the European Arrest Warrant (EAW) in the executing and issuing Member States; and 2) Legally aided assistance is not always available at the early stages of the proceedings, especially when a suspect or accused person is in police custody. Two further issues also have the potential to undermine mutual trust: 3) the eligibility criteria for legal aid that severely restrict its availability in practice; and 4) the poor quality of some legal assistance provided through legal aid. What is this initiative expected to achieve? The initiative aims to enhance mutual trust between Member States, so as to facilitate judicial co-operation in the EU by guaranteeing EU citizens common minimum standards of protection of the fundamental procedural right of legal aid in criminal proceedings. It will seek to 1) ensure that legal aid is available to persons subjected to an EAW in both the executing and issuing Member States; 2) enable suspects or accused persons who are detained to have access to legally-aided assistance ("emergency legal aid") at the first stages of the procedure; 3) promote effective access to legal aid for suspects or accused persons that do not have sufficient means (means test), where it is necessary in the interests of justice (merits test); 4) have Member States take measures to improve the quality of legally-aided services. What is the value added of action at the EU level? There is a need for EU action because 1) The problem has a cross-border dimension; if certain Member States do not respect the fundamental right to legal aid, this creates problems of trust in other Member States and hereby affects the system of mutual recognition and judicial cooperation in the EU; 2) People can be involved in criminal proceedings outside their own Member State, and the needs of these suspects or accused persons must be tackled at EU level. 3) The ECHR already sets some European-wide fair trial standards but its enforcement mechanisms cannot guarantee a sufficient and consistent level of compliance by Member States. B. Solutions What legislative and non-legislative policy options have been considered? Is there a preferred choice or not? Why? Four policy options have been assessed: 1) Retention of status quo, which would involve taking no further action on EU level; 2) a soft law option suggesting awareness raising, capacity building, information exchange and development of best practice guidelines; 3) a legal instrument setting minimum qualitative standards through either (a) a recommendation or b) a Directive, or a combination of both; without setting out detailed prescriptive action, but leaving certain discretion to the Member States; 4) The most ambitious and prescriptive option would be to, through a Directive, provide detailed minimum harmonised criteria on access and quality of legal aid, to some extent going beyond ECHR standards. Who supports which option? In a Declaration at Council in June 2012, the Member States asked the Commission to present a legislative proposal on legal aid at the earliest. A number of Member States are attached to a binding legal instrument on legal aid (see e.g. FR, SE, BE) and the European Parliament is also in favour of a legally binding proposal. A number of NGOs and stakeholders such as CCBE, ECBA, Justice, Fair Trials International, Open Society are in favour of EU action. Some Member States (e.g. NL and DE) question the need for action at EU level. C. Impacts of the preferred option What are the benefits of the preferred option (if any, otherwise main ones)? The benefit of the main options is that the right to legal aid for suspects or accused persons would be strengthened. By guaranteeing the protection of the fundamental fair trial rights of suspects or accused persons by strengthening the right to legal aid, mutual trust between Member States will be improved, which will ensure that the mutual recognition instruments and judicial cooperation in the field of criminal law will work smoothly. The main options would improve access to legal aid in European Arrest Warrant proceedings and ensure access to legal aid at the earliest stages of the proceedings. They should also help in making legal aid available to a larger number of persons by widening the eligibility criteria, and improve the quality of legally-aided assistance. While Options 3a and b are less prescriptive, Option 4 would set very high common minimum standards. If action is taken in legally binding form, as suggested in option 3b or 4, there would be a stronger possibility for enforcement and compliance. Would action be taken by a recommendation, this would leave more flexibility for the Member States. A combination of both legally binding and soft law measures could balance the needs for compliance and flexibility on different issues. What are the costs of the preferred option (if any, otherwise main ones)? The costs of the different options vary quite considerably. The financial and economic impact of option 2 would be rather limited and is estimated at a maximum of €23 million (mainly costs for training of legal aid providers and decision-makers, borne by Member States’ budgets). The cost of ensuring legal aid in EAW proceedings under Policy Options 3a and b would be €0.13-0.24 million; the cost of emergency legal aid would be between €52-81 million. Widening the eligibility criteria would cost an estimated €181-287 million, and improving the quality of legally-aided assistance would cost €13.4 million. These figures add to a total cost of €247-382 million. Option 4 would be in a higher range at around € 1.5-1.7 billion, mostly due to the costs of widening the eligibility criteria, which would amount to €1.4 billion. Legal aid in EAW proceedings would cost between €0.8-1.1 million; the cost of emergency legal aid would be €180-210 million; and improving the quality of legally-aided assistance would cost €13.4 million. How will businesses, SMEs and micro-enterprises be affected? Improving the quality of legally aided assistance by accreditation and training may have impacts on practising lawyers and law firms. No other impacts on business have been identified. Will there be significant impacts on national budgets and administrations? Almost all of the costs indicated above will be borne by national authorities. Significant cost savings could result due to fewer challenges to EAWs, and reductions in the lengths of pre-trial detention and trials, as well as the frequency of appeals. Will there be other significant impacts? Besides positive social impacts and the furthering of the protection of fundamental rights of persons subject to an EAW and suspects or accused persons in criminal proceedings, the establishment of common minimum standards on the right to legal aid in criminal proceedings will strengthen mutual trust between the judicial systems of the Member States, thereby facilitating the smooth functioning of mutual recognition and judicial cooperation in criminal matters in the EU. D. Follow up When will the policy be reviewed? The Commission envisages carrying out specific empirical studies with an emphasis on data collection 3-5 years into the application of the instrument and on that basis it might review the policy. COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the Proposal for Measures on Legal Aid
for Suspects or Accused Persons in Criminal Proceedings 1. Introduction This
impact assessment is for a measure on legal aid for suspects and accused
persons in criminal proceedings. This measure aims at setting common minimum rules
on the right to receive legal advice fully or partially free of charge. This
will strengthen the right to a fair trial in the European Union, ensure that
the rights in Directive 2013/48/EU on access to a lawyer will be effective and
it will benefit the overall quality of justice in the EU, improve the mutual
trust between EU Member States' judicial authorities and thus facilitate
judicial cooperation in criminal matters between the Member States. The
right to an effective remedy, to a fair trial and a right of defence are
provided for in the Charter of Fundamental Rights of the European Union (EU
Charter), Articles 47 and 48, and in Article 6 of the European Convention of
Fundamental Rights (ECHR). The right to legal aid, i.e. meaning that you
can benefit from the assistance of a lawyer in criminal proceedings fully or
partially free of charge, is explicitly recognised as an integral part of the
right to a fair trial and defense rights. Article 47 (3) of the Charter provides that: "Legal aid shall be made available to those who lack sufficient
resources insofar as such aid is necessary to ensure effective access to
justice." Article 6(3)(c) ECHR states that everyone charged with a criminal
offence has the right to "defend himself
in person or through legal assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be given it free when
the interests of justice so require. Effective access to legal representation is paramount to ensure the
respect of the presumtion of innocence and the rights of the defence as set out
in Article 48 of the Charter. The
existence of these common standards in the ECHR has proved not be sufficient to
achieve the necessary level of mutual trust between EU Member States that is required
for a smooth functioning of the area of justice.[1] In fact, despite common
European and international standards[2], the national rules and
practices on legal aid in criminal proceedings still display such divergences
so that there are considerable shortcomings in the protection of the right to
legal aid. The ability of indigent people who cannot afford to pay for a lawyer
themselves to access free, timely and quality legal assistance underpins the
equality of arms between defence and prosecution and is a foundation for other
essential fair trial rights. This
impact assessment accompanies the Commission's proposal for Measures on legal
aid for suspects and accused persons in criminal proceedings. 2. Policy
context Article
82 of the Treaty of the Functioning of the European Union (TFEU) states that
the principle of mutual recognition of judgments and judicial decisions should
be facilitated by means of minimum rules on procedural rights. Judicial
cooperation needs to be founded on mutual trust and confidence between the
different judicial systems and the perception that the rights of suspects and
accused persons are not respected in every instance has a disproportionately
detrimental effect on mutual trust and, in turn, on judicial cooperation.[3] In this context, the Stockholm Programme[4] put a strong focus on the
strengthening of the rights of individuals in criminal proceedings. In its
point 2.4, the European Council invited the Commission to put forward six
proposals contained in the Roadmap on Procedural Rights adopted by the Council
of Ministers ("the Roadmap")[5], setting out a step by step
approach to strengthening the rights of suspects and accused persons by setting
common minimum standards on fair trial rights. The Roadmap measures deal with
distinct procedural rights or set of rights of suspects or accused persons
which had been identified by Member States and stakeholders alike as needing to
be strengthened by action at EU level, and thus has to be considered as a
building-block for a whole edifice. The purpose of the whole exercise of the
Roadmap is to ensure the right to a fair trial. Procedural Rights Measures: · Translation and Interpretation · Information on Rights and Information about the Charges · Legal Advice and Legal Aid · Communication with Relatives, Employers and Consular Authorities · Special Safeguards for Suspected or Accused Persons who are Vulnerable · Green Paper on Pre-Trial Detention It
was following the proposals of the Commission that a Directive on the right to
interpretation and translation and a Directive on the right to information in
criminal proceedings and a Directive on access to a lawyer in criminal
proceedings have been adopted[6]. Moreover, a Directive
establishing minimum standards on the rights, support and protection of vicitms
of crime has been adopted in October 2012[7]. While
the Directive on Access to a Lawyer provides for the substantive right of
access to a lawyer, it refers to national law relating to legal aid. The
Roadmap provides that the right to legal aid should ensure effective access to the right to legal advice. For persons without means and in certain situations, for example
during deprivation of liberty, access to a lawyer cannot be effective unless
the State practically and financially provides legal aid ensuring the
assistance of a lawyer free of charge. The ability of indigent people who
cannot afford to pay for a lawyer themselves to access free, timely and quality
legal assistance underpins the equality of arms between defence and prosecution
and is a foundation for other essential fair trial rights. A right to legal aid
is therefore needed to make the right of access to a lawyer as provided for in
the Directive effective[8] and to strengthen mutual trust. The
right to legal aid to some extent contributes to strengthening the presumption
of innocence, in the sense that it enables persons without means to benefit
from access to a lawyer, which in its turn contributes to safeguarding the right
not to self-incriminate oneself. Yet, by providing access to legal aid in
criminal proceedings, one does not in itself strengthen the underlying
principle of presumption of innocence and other aspects of it that would be
needed to strengthen mutual trust, as is set out in the Impact Assessment on
the Presumption of Innocence. In the same spirit, providing a right to legal
aid for vulnerable suspects will help furthering their protection by making
access to a lawyer effective by providing financial support from the State, but
it will not strengthen other procedural safeguards which needs to be improved in
order to boast mutual trust with respect to vulnerable persons, as provided for
in the Impact Assessment on procedural safeguards for vulnerable persons in
criminal proceedings. 3. Procedure
and consultation of interested parties 3.1. Consultation of stakeholders General
principle and minimum standards for consultation of interested parties have
been followed in relation to this initiative. Stakeholders
were consulted on several occasions. The Commission has had regular and
frequent bilateral contacts the European Criminal Bar Association (e.g. by
participation in their sub-group on legal aid), Open Society Justice
Initiative, JUSTICE, Fair Trials International, ICCL-JUSTICIA in the
preparation of the impact assessment. They have shared contributions with the
Commission in view of the forthcoming measures.[9] In
March 2009, a 2 day expert meeting on procedural rights, including the right to
legal aid was organised. In a meeting on 3 June 2013, all interested Member
States were consulted in an expert meeting. The Member States had previously,
in Council in June 2012, called upon the Commission to present a legislative
proposal on legal aid at the earliest.[10] The European Parliament,
in its orientation vote on the Directive on Access to a Lawyer of 12 July 2012,
called on the Commission to come up with a proposal on legal aid. In
December 2011, the Polish Presidency, in cooperation with the European
Commission, the Council of Bars and Law Societies in Europe (CCBE) and The Academy
of European Law (ERA) organised a 2-day conference on legal aid in criminal
matters. The Conference provided an opportunity for the exchange of views and
experiences for experts from a variety of backgrounds – legal practitioners,
judges, prosecutors, academics, representatives of EU bodies, NGOs, Council of
Europe to examine the problems and possible contents of a future measure. In the context of the study for the Impact
Assessment, wide outreach with Member States' Ministries of Justice, NGOs in
the Member States, lawyers' associations and legal aid boards was made in focus
groups. In-depth interviews were carried out with lawyers in the bar
associations, representatives from stakeholder organisations and Ministries of
Justices in all Member States.[11] Moreover, focus groups,
bringing together representatives from Ministries of Justice, bar associations,
academics, judicial staff, and stakeholder organisations were organised in a
number of Member States: England & Wales, Germany,
Hungary, Spain, Sweden and France.[12] Moreover, an on-line
consultation for legal aid providers in the Member States was carried out.[13] Given these different consultations, a
formal open public consultation did not take place. In the focus group meetings a large
majority supported EU action and found status quo on legal aid in criminal proceedings
to be insufficient. Moreover, in a Declaration at Council in June 2012, the
Member States asked the Commission to present a legislative proposal on legal
aid at the earliest. In the Expert meeting it also appeared that there was
support for some action with regard to legal aid. A number of Member States are attached to a
binding legal instrument on legal aid (see e.g. FR, SE, BE) and the European
Parliament is also in favour of a legally binding proposal. A number of NGOs
and stakeholders such as CCBE, ECBA, Justice, Fair Trials International, Open
Society are in favour of EU action with respect to legal aid. Some Member
States (e.g. NL and DE) question the need for action at EU level. 3.2. Studies
and publications The
Impact Assessment relies on a number of studies carried out from 2007-2013, as
well as studies and research from stakeholders and the Reports from the CPT[14] and the 2012 Report of the
European Commission for the Efficiency of Justice (CEPEJ) report on the
Efficiency of Justice. An
external study to gather evidence for this impact assessment was carried out by
the consultants CSES and focused on comparatively studying the legal aid
regimes in the 27 Member States and Croatia, identifying the problems and the
policy options and costs of the various options. The
Commission's Criminal Justice Programme (JPEN) has funded several relevant
studies, in particular the study on Pre-trial emergency defence (covering
also the question of availability of legal aid pre-trial)[15], a joint study by the NGO JUSTICE,
the University of West England and the Open Society Justice Initiative and
Maastricht University (2007-2010)[16] (including detailed research
on the standards on legal aid in the covered Member States), studies presented
in 2012 by Fair Trials International on Effective Defence Rights in the EU[17] and on the practical operation
of legal aid in the EU[18] and a report from 2013 by the
European Rights Network Justicia on Compliance of Legal Aid systems with the
European Convention on Human Rights in seven jurisdictions.[19] Stakeholders
have over the last years prepared a number of studies that have been relevant
in the preparation of the Impact Assessment. In 2009, research from Maastricht
and Ghent universities carried out a comprehensive review of procedural rights
in the EU[20] for the Commission, including
extensive evidence on the legal aid systems. Other relevant studies are: 'European
Arrest Warrants: Ensuring an effective defence',[21] 'Effective Criminal Defence
in Eastern Europe'[22], 'Improving Pre-trial
Justice, The Role of Lawyers and Paralegals'[23]. 3.3. Internal
consultation and scrutiny of the impact assessment An
Inter Service Impact Assessment Steering Group was created involving representatives
from MARKT, ENTR, BUDG, OLAF, HOME, EMPL, the Legal Service and the
Secretariat-General. A first meeting was held on 27 September 2012, based on the
Interim Report for the impact assessment study. A second meeting was held 6 May
2013. At the meetings and in subsequent communication with individual DGs,
comprehensive feedback was received which has been taken into account
throughout this report. This
Impact Assessment was examined by the European Commission's Impact Assessment
Board on 3 July 2013. Further to the IAB's recommendations, additional
information, explanations and data were provided. The revised report takes on
board the recommendations of the IAB and introduced the following main
modifications and clarifications: ·
The problem definition has been clarified by
better explaining the extent of the problems faced by the suspects and accused
persons and the existing shortcomings (see Section 4, especially 4.2). It also
more clearly explains the general problem and the policy context and relation
to the other upcoming roadmap measure (Section 2 and Section 4.1), ·
The subsidiairty analysis is strenghtened and
the report more clearly sets out what rights are not sufficiently addressed on
Member State and ECHR level (Section 4.1 and 4.2), what the ECHR standards are
(Annex III) and the shortcomings with relying only the ECHR to ensure an
effective right to legal aid, as well as reasons for the Member States'
reluctance to change legal aid standards (Section 4.1), ·
The options and impacts have been better
presented and assessed, especially as concerns a possible combination of
measure 3(a) and 3(b) (Section 8), ·
The financial costs have been broken down and
are presented per Member State (see Annex VI), ·
Member States' opinions have been better integrated
and the reasons for reluctance to introduce legal aid minium standards are also
presented (Section 4.1.1). The views of different categories of stakeholders,
including Member States, have been more extensively referred to throughout the
Impact Assessment, ·
The revised report also include performance
indicators and the data collctions requests from the Member States (Section 9). 4. Problem
Definition 4.1. General
problem An analysis of the legislation in place in
the Member States, shows that the right to legal aid in criminal proceedings
for suspects and accused persons is insufficient to ensure the right to a fair
trial and to ensure that the right of access to a lawyer as provided for in the
Directive 2013/48/EU on access to a lawyer is effective. The problem of
insufficient protection of the right to legal aid (see section 4.1.1) is
not sufficiently addressed by the current legal framework and thus, at present
the legal framework does not sufficiently foster mutual trust at a level which
will ensure the smooth functioning of the mutual recognition instruments in
criminal proceedings (see section 4.1.2). 4.1.1. Insufficient protection of
fundamental rights of suspected and accused persons There
is currently no EU law instrument that provides a right for suspected and
accused persons to legal aid in criminal proceedings.[24] There are, nonetheless, legal
aid provisions in all EU Member States, including Croatia, and there are common
standards in the form of Article 47 of the EU Charter of Fundamental Rights, which is now legally binding on Member States, to the extent that
they implement EU law.[25] Moreover, all EU Member States are signatories to the ECHR, with a right to
legal aid for suspects and accused persons in criminal proceedings set out in
Article 6(3)(c) ECHR. However, these standards do not, on their own, ensure the
level of protection that is needed to ensure mutual trust in the EU. Despite the existence of the ECHR, there is a high level of
variation between the different Member States’ legal aid systems in law and
practice, and there are shortcomings in the protection of the right to a fair
trial in a number of Member States, especially as concerns the aspects that are
further explored in section 4.2. The limited right to legal aid in some Member
States[26] has the potential to undermine
mutual trust and mutual judicial cooperation in the area of criminal
proceedings and to frustrate the fair trial rights of the Charter, Articles 47
and 48. Insufficient standards across Member States
concerning access to legal aid undermine the effectiveness of the right of
access to a lawyer, as set out in the Directive on Access to a Lawyer, foreseen
for adoption later in 2013. The
Commission's decision to not treat the two interrelated questions in the same
measure was based on the need to take urgent action for a coherent legislative
approach with regard to access to a lawyer, following divergent interpretations
and practices in the Member States of the ECtHR Salduz ruling.[27] Thus,
the Commission dissociated the question of legal aid to allow more time for
preparation and assessment of impacts since the latter is more complex and was
in need of a more detailed analysis. It has continuously been stressed by several
Member States and stakeholders during the negotiations of the Directive on
Access to Lawyer, that it is difficult to completely dissociate the right of
legal aid from the right of effective access to a lawyer and to make provision
only for the latter and not the former.[28] Without common
minimum standards on legal aid, the right of access to a lawyer as provided for
in the Directive risks not being practical and effective. This has also been
confirmed in the consultation in focus groups and with stakeholders.[29] While all Member States have some system for
legal aid in place, their legal aid systems in some Member States fall short of
ensuring that the Right of Access to a lawyer becomes effective. The Directive e.g.
gives a right to access to a lawyer before the suspect or
accused person is questioned by the police or by another law enforcement as
well as without delay after any deprivation of liberty. As will emerge from Section 4.2, this right of
access to a lawyer is however not supported by a practical right to legal aid
in all Member States, permitting to access to right to a lawyer as from this
early point in time given for example the delays in deciding on a right to
legal aid. The Directive also provides a right of access to
lawyer in European Arrest Warrant proceedings in both the executing and the issuing
Member State, and there is not a right to legal aid to support this dual
representation in all Member States. Moreover, the narrowly defined eligibility
criteria in certain Member States exclude persons with insufficient means and where the interests
of justice would re quire representation from the legal aid system (see
further on the extent of these problems in the Member States in section 4.2
below). To ensure a minimum common level of protection there is a therefore need
to raise the level of protection in a number of Member States, where the
standard is particularly low[30]. Yet, Member States
are not prevented from maintaining or introducing higher standards, as is
stated in Article 82(2) TFEU. Any EU action taken with regard to the matter
aims at reinforcing the protection of the fundamental right to legal aid in
criminal proceedings, and should not be interpreted as lowering standards of
protection already in place in the Member States. The initative on the Right to Legal Aid and
its relation to the Directive on Access to a Lawyer– completing the picture The right to access to a lawyer for the
suspected or accused person in criminal proceedings at the earliest appropriate
stage of such proceedings is one of the most fundamental rights in order to
safeguard his rights to a fair trial and right of defence within the criminal
proceedings. The right to legal aid is linked to the
right to access to a lawyer. For persons without means and in certain
situations, for example during deprivation of liberty, access to a lawyer
cannot be effective unless the State practically and financially provides legal
aid ensuring the assistance of a lawyer free of charge. While the Directive on
Access to a Lawyer provides for the substantive right of access to a lawyer, it
refers to national law relating to legal aid. In a Declaration attached to the
Directive, the European Parliament and the Council call on the Commission to,
at the earliest, present a proposal on legal aid. Why is the ECHR not a sufficient answer? The existence of a common minimum standard in the ECHR, (as well as
the non-binding UN guidelines on legal aid), appears as insufficient to
address, on their own, the shortcomings in the protection of the right to legal
aid. This is so as the ECHR contains only a very general statement on the right
to legal aid in criminal proceedings and leaves a wide margin of how to
understand the right to legal aid. Moreover, there is very limited case-law
clarifying how to understand an effective right to legal aid. The ECtHR has
shown a "hands-off" approach and has been reluctant to intervene into
the way Member States ensure the right to legal aid in criminal proceedings,
and it has applied a wide margin of appreciation in interpreting Article
6(3)(c) steering clear from clarifying e.g. what would constitute
"insufficient means",[31] While it has provided that
there must be right of access to a lawyer from the very beginning of the
pre-trial phase in the Salduz case, there is not yet any conclusive judgment
clarifying that this right must be granted for free, as no such case has yet
been brought before the Court. This would, however, be the logical continuation
of its case-law and is also how the Salduz jurisprudence has been
implemented and interpreted in several Member States (see e.g. France
and Belgium). The
insufficient protection of the right to legal aid is thus to some extent also due
to the fact that case-law is interpreted differently in different Member
States. As a case is delivered on the basis of a specific factual situation in
a determined Member State, it can lend itself to different interpretations
which make it difficult to derive a general rule applicable to other
circumstances and Member States.[32] The Court has for instance
clarified the merits test but as will be clear from Section 4.2, a number of
Member States appear to still not comply with the Court's understanding of when
it is the interest of justice to provide for legal aid. This shows that it is problematic to rely on case-law to provide
legally certain common minimum standards, as case-law is by its nature piecemeal
and reactive. It leaves large room for interpretation and can result in very diverging interpretations in the Member States.[33] EU action would provide
greater legal certainty by giving more detail, clarity and guidance on the
right to legal aid. Such detail could be partly inspired by ECtHR case-law
where such exists, for example on the merits test (see Annex III and
Section 4.2.2). Moreover,
the absence of any effective enforcement mechanism to oblige and encourage
States to change their national laws in the case of breaches of ECtHR decisions
also contributes to the limited compliance of the ECHR. The ECtHR can impose
damages for the breach in the case at hand, but there are no infringement
proceedings or comparable mechanisms, as would be available in the EU system,
to make the Member State, or other Member States with similar provisions,
comply with a judgment. The high ratio of ‘repetitive decisions’ before the
ECtHR in relation to fair trial issues in general (around
70 per cent of the Court's judgments in 2011[34]),
indeed suggests that Member States are not reforming their national legislation
after they are found to be in breach of Article 6 ECHR. There are also
limitations for individuals wishing to bring a case before the ECtHR, and the reparations to remedy a violation generally consist of declaratory
judgments, coupled with, depending on the circumstances, damages[35]. This shortage of strong enforcement powers in the convention system,
coupled with the ECtHR's backlog that poses a serious
risk to the effectiveness of the whole ECHR system,[36] also adds to the insufficiency
of relying only on the ECtHR to ensure sufficient protection of the right to
legal aid in the EU criminal justice area as being developed under the Stockholm
Programme. In conclusion, the insufficiency of the ECHR standards alone for
providing minimum standards on legal aid for suspects and accused persons
mainly lies in the general wording of those standards and the absence of
guidance as to effective legal aid is concretely, rather than Member State
opposition to what those standards are. The obligation to provide legal aid flowing from Article 47 of the
EU Charter of Fundamental Rights binds the institutions and bodies in all
instances, but it only applies to Member States when they are implementing EU
law. Thus, in the absence of EU law legislation in the field,[37] the Member States are not
bound by the provision to provide legal aid in Article 47(3) of the Charter.[38] Furthermore even if such a
link to EU law could be established, the extent of the application of Article 47 of the Charter and its scope has only been tested to a
limited extent by the Court of Justice.[39] A clarification of
the scope and contents of this principle at EU level would thus be necessary in
order to provide predictability, legal certainty and to meet the policy
objectives as concerns legal aid as indicated in the Roadmap. According
to stakeholders, the vast majority of those arrested in the EU have
insufficient means to pay for a lawyer; sufficient legal aid is therefore a
crucial part of the right to access legal advice and representation. The reason why some Member States maintain
a limited right to legal aid in criminal proceedings in their legislation is
partly due to the above-mentioned fact that the guidance in international norms
is limited and that it is difficult to subsume what exact requirements there
are on the basis of the very limited case-law on the right to legal aid (See e.g.
Annex III). Another reason is related to the costs of ensuring a high
level of protection through providing legal aid. It has been noted, however,
that while limiting legal aid costs might give an impression of saving costs,
this results in indirect costs in other parts of the system that are more
difficult to measure and are less visible. These are for example costs of
pre-trial detention, the cost of the working of the police and the judicial
system.[40] 4.1.2. Insufficient
levels of mutual trust and mutual recognition between Member States as a result
of deficient standards on legal aid The lack of adequate standards on legal aid
affects the mutual trust between judicial authorities and undermines judicial
cooperation between Member States. This is detrimental to the mutual
recognition of judicial decisions and judgments and other instances of judicial
cooperation between Member States and undermines confidence in cross-border
instruments such as the European Arrest Warrant (EAW),[41] the three Framework Decisions
on Detention[42] and the Freezing and
Confiscation Framework Decisions[43]. The underlying idea of the
mutual recognition instruments is to ensure fast-track and simple procedures
for cross-border law enforcement and cooperation. Such cross-border instruments
build on the assumption that each Member State provides a system of justice
which guarantees fair trial rights to a fairly similar degree; something that
is not the case in practice. If judicial authorities doubt the compliance with fair trial rights
by another jurisdiction and believe that a suspect or accused person might not
get, or has not got effective access to legal advice and legal aid, requests
for judicial cooperation from that jurisdiction can be denied. This means that
a person is not to be surrendered under the EAW, that a court might refuse to
collect evidence requested by judicial authorities in another Member State and
that a transfer of a prisoner request is denied as the receiving Member State
has doubts as to the fairness of the trial underlying the conviction. As the
principle of mutual recognition is the cornerstone of the area of justice, it
is necessary to enhance mutual trust for the effective functioning of the area
of Freedom, Security and Justice. The limited number of EAW requests that
finally are delayed or unsuccessful does not mean that judicial cooperation
runs smoothly or that there is no strain in the confidence and trust that
Member States and their citizens place in each other's criminal justice
systems.[44] The limited possibility for
refusals in the framework decision itself is justified by the aim of providing
a ‘fast-track’ extradition procedure, but that only works in practice if the
standards of protection comply with an adequate minimum level, so that mutual
trust is present. In practice, the system of mutual recognition often works
sub-optimally as the swift operation is hampered by numerous challenges and
appeals, resulting in additional costs and delays[45], partially due to
long to complex and long drawn investigations into the systems of other Member
States in such situations. Annex IX contains several examples of cases where
insufficient trust in the respect of fair trial rights by another Member State
caused such costs and delays. Ultimately this situation prejudices the
resolution of a cross-border case for all parties involved, be it the suspected
or accused, the victims or the general public. There are also other indicators of the lack of mutual trust in the
fair trial rights of other Member States of the public at large, such as the
negative media attention that insufficient or denied access to a lawyer as a
result of shortcomings in the legal aid system. This has come to light in a
number of cases, which, although being single cases, have adverse effects on
the reputation of a Member State and it only takes one case to erode trust.[46] 4.2. Specific
problem and its underlying causes The specific problem identified by
stakeholders and in the Study is that there is insufficient access to effective
legal aid for suspected and accused persons in the EU, that are detrimental to
the mutual trust and the smooth working of the mutual recognition system. There
are four underlying issues where there appear to be gaps in the current
standards and where an EU initiative could have added value. The two main
underlying issues of the problem are: ·
Insufficient possibilities to access legal aid
in extradition proceedings under the EAW in the Member States, ·
Legally aided assistance is not always available
at the early stages of the proceedings, especially before a decision on legal
aid has been made, although the right of access to a lawyer applies from the
time a person is suspected; In addition, there are two further issues that also have potential
to undermine mutual trust: ·
Too restrictive eligibility criteria to qualify
for legal aid; ·
Shortcomings in quality and effectiveness of
legal assistance provided through legal aid schemes. 4.2.1. Insufficient
possibilities to access legal aid in extradition proceedings under the EAW in
the Member States The Directive 2013/48/EU on access to a lawyer
provides a right to dual representation in extradition proceedings under
the European Arrest Warrant (EAW).[47] As such proceedings
are not considered as “criminal proceedings”, they are not covered by the ECHR,
but they are covered by the Charter of Fundamental Rights. Without EU action,
there would not be any common minimum standards on the right to legal aid in
EAW proceedings. When a person is arrested on foot of an EAW
he/she has the right to access a lawyer in the executing Member State for the
extradition proceedings.[48] With the entry into
force of the Directive on Access to a Lawyer, there will also be a right to
have a second lawyer in the Member State that issued the EAW. The role of this
lawyer in the course of the EAW proceedings in the executing state is
ancillary, and aims at assisting the lawyer in the executing Member State, for
example by providing information about the legal situation and the case-file in
the issuing state. Access to a lawyer and legal aid in respect of the criminal
proceedings underlying the EAW in the issuing state will be determined by the rules
applicable in that Member State. The Directive on Access to a Lawyer does not
address the issue of legal aid and thus, it does not provide for a right to
legal aid to be assisted by a lawyer in the executing or issuing Member State. At
present, no Member State appears to provide the right
to obtain legal aid for a lawyer in the issuing Member State for liaising
with the lawyer in the executing state, as such a right of access to a lawyer
does not exist.[49] While the substantive issue of the right of
access to a lawyer in EAW proceedings is addressed in the Directive on Access
to a Lawyer and reflects the acceptance of its added value for the need to
boast mutual trust in the EU, the fact that the entitlement to legal aid is
still lacking in some executing and issuing Member States will affect the
effectiveness of this right and its consistent application. This has been
underlined by a large number of practitioners in the stakeholder consultations.[50] While the Directive on Access
to a Lawyer ensures that there is access to a lawyer, this right will not be
effective and available to everyone unless legal aid is provided. A consequence of the absence of legal aid
in the issuing Member State is that the lawyer in the executing Member State is
unable to ascertain if the correct procedure was followed and whether there are
grounds to refuse the EAW according to Articles 3-4 of the Framework Decision.
To render the right of access to a lawyer in EAW proceedings effective by also
providing legal aid is important, as allowing the
lawyer in the state of execution to establish the circumstances of the EAW
reduces the likelihood of inappropriate or erroneous EAW requests improves the
cooperation from the individual and saves police and court time, as if the
defence lawyer in the executing state does not have sufficient information
about the situation in the issuing state, he will be very likely to advise his
client to resist the EAW request. It has also generally been noted that
ensuring legal advice in the issuing Member State, free of charge where need
be, can save Member States costs.[51] A person who gets
legal advice in the executing and issuing Member States might agree to
extradition, and is less likely to appeal against the extradition, something
that delays the process and hampers the effective and smooth working of the EAW
system. The unavailability of legal aid in both the
issuing and the executing state of an EAW can prejudice the rights of the
defendant in extradition proceedings and undermine the mutual trust necessary
for the smooth working of this instrument. European Arrest Warrant: need for legally-aided assistance in both executing and issuing Member State Alan Hickey, a lorry driver, was convicted in France of people-trafficking and sentenced to serve 18 months in prison in December 2009. While in prison in France, Alan found out that Belgium had issued a European Arrest Warrant against him. Alan was not given clear information about the Belgian charges and was concerned that they related to the same matter for which he had been sentenced in France. This should be a bar to extradition on “double jeopardy” grounds. However, Alan’s extradition was ordered before further information could be gathered from Belgium. Once in Belgium, Alan’s concerns about double jeopardy were vindicated. The judge at Alan’s trial found that some of the Belgian charges arose from the same events for which he had been convicted in France. Alan pleaded guilty to the other offence and was given a suspended sentence. Alan’s extradition in breach of the double jeopardy rule could have been avoided if he had been provided with effective legal representation and legal aid in both France and Belgium from the start. 4.2.2. Timing:
Legally-aided assistance is not always available at the early stages of the proceedings It is of utmost importance to have access
to a lawyer as early on as possible in the investigative stages of the proceedings
to protect the suspected person's fair trial rights, such as the right to
remain silent and not to self-incriminate oneself.[52] The ECtHR[53] has underlined the importance
of early access to legal advice seen the specific vulnerability of the suspect,
accentuated if he is deprived of liberty. Early access to legal advice also safeguards
against intimidation and physical ill-treatment.[54] Indeed, by implementing the
ECtHR’s Salduz ruling in the EU, Directive 201348/EU on access to a lawyer
provides a right of access to a lawyer from the moment when someone becomes suspected
or accused of a criminal offence and thus before police interrogation.[55] Several Member States, e.g.
Belgium and France, have implemented the Salduz jurisprudence ensuring
that legally aided assistance is available for persons deprived of liberty from
the very start of the detention and before any questioning. In only one jurisdiction
(UK) does the legal aid system caters for providing legally-aided assistance at
the early stages for all persons, whether they are deprived of liberty or not,
when they are being heard in a police station. In a number of Member States (10 MS – AT,
NL, BE, CZ, LU, MT, SE, IE, FR, SK), the right to legal aid arises at the latest
at the moment of initial detention.[56] There is thus a right for
persons deprived of liberty to have access to legal aid. To ensure that
the legal aid is available in practice at the first hours of detention, several
of these Member States have set in place “emergency defence mechanisms” so that
advice by sufficiently qualified legal aid providers is available before
questioning, at times and in locations where suspects are being held, for
example by a duty solicitor scheme operated by the bar association and without
first carrying out an eligibility testing.[57] This seems to ensure that the
right of access to a lawyer is rendered effective on the early stages, also for
persons deprived of liberty. However, in 12 Member States (BG, CY, DE,
EE, EL, FI, HU, IT, PL, PT, RO, SI), there are shortcomings regarding ensuring an
effective access to a lawyer free of charge at the earliest stages of the
proceedings for persons who do not already have a lawyer. In 10 of these Member
States, the right arises at the point of arrest or formal charge (CY, DE, EE,
EL, FI, IT, PL, PT, SI, RO) (see further Annex VIII). This point in time often occurs after the
right of access to a lawyer has materialised and moreover, the practical
arrangement for a legal aid lawyer is often considerably delayed, as the
appointment is made for example during the first court appearance, also in
cases of deprivation of liberty[58] which is likely to be after
questioning. This means that the right of access to a lawyer is only provided after
a decision on legal aid is made and at a stage which is likely to be considerably
later than the moment when someone becomes suspected or accused of a criminal offence
and thus should be afforded right of access to a lawyer (see e.g. DE and PL
where the judge makes the decision on legal aid at the first hearing); SI,
where it is at the pre-trial questioning before the court; HU where it has been
reported to be sufficient to send a fax to a legal aid lawyer to satisfy the
obligation to provide legal aid or LV, where the law states that legal aid
should not be given later than three days after detention)[59]. These shortcomings have been widely
recognised by stakeholders.[60] Moreover, a number of reports by the European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) have in recent
years illustrated how deficiencies in the legal aid systems of several Member
States in practice hampers the
access to legal assistance of suspects and accused persons at the early stages of the proceedings.[61] This seriously undermines the core of the
right of access to a lawyer as prescribed in the Directive 2013/48/EU on access
to a lawyer and risks undermining mutual trust especially for EU citizens that are
detained in other Member States. Without ensuring practical access to legally-aided
services at their very first contact with authorities, suspected or accused
persons, particularly when they are deprived of liberty, will risk being
unrepresented during the most crucial first pre-trial stages. This phase
includes the first interrogations at the police station until the formal
decision on legal aid is made, the latter often being delayed due to time-consuming
means testing.[62]
Unless there is EU action ensuring that there is a right to legal aid that
makes the right to access to a lawyer practically feasible at those early
stages of the proceedings, the right of access to a lawyer will be merely
illusory for those that have insufficient means and that do not already have a lawyer.
In Latvia, Section 66 Criminal Procedure Law provides “From the moment when a person is notified that he or she is recognised as a suspect, such person shall have the (right)… to utilise legal assistance ensured by the State if he or she with his or her own funds is unable to enter into an agreement with a defence counsel.” Legally aided assistance should furthermore be provided not later than within three working days after the suspect’s detention. However, the CPT report referred to allegations made to the investigating team of detained suspects having “no contact with their state-funded lawyers until the first court hearing. In Poland, there is in theory a right to legal assistance from initial detention. Before a lawyer can be appointed, the procedure requires an application for means-tested legal aid and this must be filed with the court hearing the case or sent to the court’s address by registered mail. As a result, it can in some situations take up to three weeks for the legal aid lawyer to be appointed. The following presents an example of the practical implications of this: On June 2, 2012, Mr. X was visited in his family home by the ABW (National Security Agency). The ABW detained him, questioned him and presented him to a prosecutor. The prosecutor and the ABW interviewed Mr. X several times during the initial phase. Mr. X appeared without a lawyer even though he was entitled to a state appointed lawyer because he had no means to appoint one himself. During these interviews, Mr. X made extensive self-incriminating statements. The Prosecutor – within 48 hours of the initial detention – filed a motion to the Regional Court to have Mr. X subject to pre-trial detention for 3 months. At the Court hearing Mr. X was not represented by a lawyer and the Court decided to detain Mr. X in pre-trial detention. Mr. X got access to a lawyer 2 months after his initial detention. 4.2.3. Restrictive
eligibility criteria to qualify for legal aid Article 6.3 (c) ECHR states that everyone
charged with a criminal offence has the right to "defend himself in person or through legal assistance of his own
choosing or, if he has not sufficient means to pay for legal assistance,
to be given it free when the interests of justice so require." Article 47 (3) of the Charter provides that: "Legal aid shall be made available to those who lack sufficient
resources insofar as such aid is necessary to ensure effective access to
justice." Member States use two conditions to determine
whether a person has a right to free legal aid: the person
has insufficient means (means test); and/or the interest of justice requires
legal aid (merits test). There is a wide
variation in how the eligibility testing is done in the Member States. The differences between Member States'
systems as regards eligibility criteria are as follows: 13 Member States have
only a means test, 3 Member States have only a merits test (DE, SE, DK) and 12
apply both a means and a merits test.[63]
The fact that Member States operate different models of eligibility is not in
itself incompatible with the ECHR and the Charter.[64] This initiative does not aim at providing a harmonised EU model
for eligibility testing, but to ensure that there is a sufficient level of
protection to guarantee mutual trust when the Member State operates the model
chosen. However, there is a broad divergence in how the interest of justice and
the criterion of "insufficient resources" are understood in the
Member States. Means test: There
is no guidance from the ECtHR as how to understand 'lack of sufficient
resources'. Instead, the ECtHR has highlighted the need to take all particular
circumstances in of each case into account when determining the financial
circumstances.[65]
Also the UN Guidelines highlight the importance of not applying too restrictive
or arbitrary means testing. The threshold set by the Member States
operating a means test ranges from countries where the threshold of earnings is
set so low so that less than 10% of the total population in principle qualify
for legal aid, while in other Member States, 80-90% of the population would
meet the means test, were they to be suspected or accused of a criminal offence.[66] The exact difference between
the Member States' systems in this respect are further outlined in Annex VI
and VII. Interest of justice test / merits test: One of the issues relating to legal aid where there is guidance
from the ECtHR is in relation to how one should understand the interest of
justice test. In Quaranta (1991)[67]
it was held that there are three factors to take into account, and consider together,
but one of the three can on its own warrant legal aid: (1) the seriousness of
the offence and the severity of the potential sentence;[68] (2) the complexity of the case;
and (3) the personal situation of the defendant (for example vulnerable groups).[69] In the case Benham
(1996), the Court held that "where the deprivation of liberty is at
stake, in principle, the interests of justice call for legal
representation." In that case the suspect risked a prison sentence of a
maximum of 3 months. The interest of justice test is more flexible than the means test
and it is therefore more difficult to prima facie appreciate what
percentage of the population qualifies under it. An analysis of the legislation
in the Member States applying a merits test yet shows that the test is designed
very restrictively in a number of Member States. Looking at the length of the custodial
sentence that one must risk to incur in order to fulfil the interests of
justice test, in a number of Member States it is considered to be in the
interest of justice to provide legal aid only for custodial sanctions that are
rather long (see. e.g. 1 year for DE and CY, 3 years for AT, 5 years for EL,
HU, RO)[70].
This would appear to go against the principle set out in the Benham case
which states that legal aid should in principle be provided in any case where
deprivation of liberty is at stake. Overall differences in the granting of
legal aid between the Member States' systems: The
share of criminal cases where a suspected of accused person is granted legal
aid vary between 0.1% to 73 % in the 27 Member States (except DK) (average is 27
%) (see table in Annex VII). The very low percentage of cases that benefit from
legal aid in certain Member States (e.g. HU, IT, CY, SI) shows that the threshold
to qualify for the means test is set so low,[71]
that persons that lack sufficient resources still will not qualify for legal
aid, and that in a number of Member States, a suspected person will only meet
the interest of justice test for the most serious offences. Thus, the restrictively set criteria to
benefit for legal aid, both as regards the means test and the merits test, may
result in suspected or accused persons without sufficient resources and when it
is in the interest of justice as defined by the EctHR, still do not benefit
from legal aid. This has consequences on mutual trust and mutual recognition. Benham v United Kingdom The applicant, Stephen Benham, became liable to pay a community charge known as the ‘poll tax’. The applicant did not pay the amount owed, and bailiffs visited his parents' house (where he was living), but were told that he had no goods of any value there or elsewhere which could be seized by them and sold in order to pay the debt. Under the relevant regulations, the authorities were empowered to apply to a magistrates' court for an order committing to prison a person who was found to have insufficient goods on which to levy outstanding community charge. The charging authority applied for such an order, and on 25 March 1991 Mr Benham appeared at the Poole Magistrates' Court for the inquiry required by the regulations. He was not assisted or represented by a lawyer, although he was eligible for legal advice and assistance before the hearing. The applicant was convicted by the magistrates. He faced a possible maximum penalty of three months' imprisonment, and was ordered to be detained for thirty days (the case was however overturned on appeal). The applicant submitted that the interests of justice required that he ought to have been represented by a legal aid lawyer when he appeared before the magistrates. The ECtHR affirmed that “where deprivation of liberty is at stake, the interests of justice in principle call for legal representation… In this case, Mr Benham faced a maximum term of three months' imprisonment… In view of the severity of the penalty risked by Mr Benham and the complexity of the applicable law, the Court considers that the interests of justice demanded that, in order to receive a fair hearing, Mr Benham ought to have benefited from free legal representation during the proceedings before the magistrates.”[72] 4.2.4. Shortcomings
in quality and effectiveness of legal assistance provided through legal aid
schemes ECtHR has held that the State's obligation
to provide free legal assistance is not fulfilled by merely appointing a
publicly funded lawyer[73]
but it must ensure that the assistance provided by legal aid lawyers is practical
and effective, and of a certain quality. While the relation between a lawyer
and the client is independent of the State, it has been held that national
courts have a duty to determine whether the assistance by state-appointed
counsel is sufficient to secure the fair trial guarantees,[74] and the State bears
responsibility in ensuring quality and should intervene where failure to
provide effective representation is manifest.[75]
Research has shown the damaging effect of
poor legal advice to the credibility of the legal aid system, both with respect
to emergency defence services and ordinary legal assistance.[76] In the Warsaw conference on
the EU measure on legal aid, the low quality of legally-aided assistance and
how to improve the situation was discussed.[77]
Nonetheless, in many Member States, there
is little or almost no quality assurance in place.[78] 12 Member States require some special
qualification or accreditation[79]
to provide legally aided assistance, while in others it is sufficient to be
a qualified lawyer (without specific knowledge of criminal law). This means
that in a number of Member States you can be assisted e.g. by someone who has
no or limited experience in criminal law matters and usually deals with family
or property law. The problem of competence of legal aid providers has been
substantiated in stakeholder reports.[80]
In ca. 2/3 of the Member States there is some
method of monitoring the performance of legal aid lawyers with the aim
to ensure the quality of the work (in 9 Member States legal aid lawyers are
supervised by a professional association, in 8 Member States legal aid lawyers
are supervised by the State or the courts, sometimes alongside professional
organisations, and in 3 Member States there is peer review monitoring). Yet, in
8 Member States there is no formal supervision, apart from possibility of appeals
or complaints (BG, CY, DE, EL, HU, IE, LU, NL). Moreover, in a majority of the Member
States (18 MS) the training requirements to carry out defence services
are minimal or non-existent.[81]
In relevant literature[82] and in consultation with stakeholders[83] insufficient levels of remuneration
are frequently asserted as a major reason for poor quality of legally aided
services. CPT and SPT have noted that excessive workloads and low fees for
services discouraging effect on legal aid lawyers.[84] Adequate remuneration, no
matter the length or complexity of the case, is important for the obligation to
provide an effective representation sufficient to secure the fair trial
guarantees. The data on the total criminal legal aid expenditure and the vast
difference between Member States (see Annex VI) is an indicator that in
practice there are problems in compliance with the requirement of the ECHR to
provide an effective and practical defence resulting from low levels of
remuneration.[85]
It can be identified that in a number of Member States the remuneration of a
legal aid lawyer is much lower than that of a private practising lawyer (for
example €5 in LT compared to €96, HU €10 per hour instead of €223, EE €32
instead of €150, IT remuneration is 25 % of the fees of a private practicing lawyer).[86] Deborah Dark (shortcomings of the quality of defence in EAW cases ) In 1989 Deborah Dark was arrested in France on suspicion of drug related offences and held in custody for eight and a half months. Her trial took place later in 1989 and the court acquitted her of all charges. She was released from jail and returned to the UK. The prosecutor appealed against the decision without notifying Deborah or her French lawyer. The appeal was heard in 1990 with no one there to present Deborah's defence. The court found her guilty and sentenced Deborah to 6 years imprisonment. Again, she was not informed that an appeal had taken place, nor notified that her acquittal had been overturned. As far as she was concerned she had been found not guilty of all charges and was free to start rebuilding her life. In April 2005, fifteen years after the conviction on appeal, an EAW was issued by the French authorities for Deborah to be returned to France to serve her sentence. In 2008 Deborah travelled to Spain to visit her father who had retired there. On trying to return to the UK, she was arrested and taken into custody in Spain, where she faced extradition to France. A court appointed legal aid lawyer visited her and advised her that she had no option but to consent to extradition. However, a doctor who visited Deborah shortly afterwards advised her to resist extradition. Deborah took this advice and at the extradition hearing the Spanish court refused to extradite Deborah on the grounds of unreasonable delay and the significant passage of time. 4.3. The
scale of the problem Member States currently do not collect data
on the number of proceedings in which insufficient access to a lawyer due to
denied legal aid is complained about or the amount of decisions denying legal
aid that have been appealed and upheld, or reversed by a higher court. It is
therefore not possible to estimate with any accuracy the number of cases where
suspects have no access to legal aid or where the legally-aided service is of
low quality so that it impacts on the fair trials rights. What one can
conclude on the basis of the comparative analysis of the number of EU citizens
that benefit from legal aid in their criminal proceedings in the EU Member
States, is that it appears that there is a wide range (between 0.1% and 73% of
criminal proceedings benefit from legal aid), with an average of 27 %. 17
Member States lie below the EU average. 4.4. Baseline scenario: How would the problem evolve all
things being equal? Directive 2013/48EU on access to a lawyer will
have to be implemented in the Member States by 2016. Without any flanking
measure ensuring publicly funded legal representation, the rights provided under
that Directive will be governed exclusively by Member States’ domestic systems
of legal aid, as well as the ECHR and the judicial oversight of the ECtHR. This
means that the deficiencies in the legal aid system of several Member States are
likely to continue hampering the right to a fair trial for suspects and accused
persons, especially at the early stage of the proceedings (at the police
station stage) and for legal advice in the issuing Member States of EAWs. Considering the hands-off approach of the
ECtHR with regard to most aspects of legal aid and the piecemeal development of
case-law described in section 4.1.1, it is not likely that reliance on the ECHR
will strengthen the protection of fundamental rights in order to ensure mutual
trust on a sufficient level. The best that could be expected is that Member
States would respond to particular developments in respect of the right to
legal aid, but this would only be reactive, without any true supervisory powers
by the Council of Europe or the EU and the reaction would be ad hoc. It
is unlikely that such reforms would result in any common minimum standards or
that all Member States would proceed at the same pace. The expected further increase in the
caseload of the ECtHR, as well as the fact that these cases only are the tip of
an iceberg in an area where the very problem is the absence of a lawyer and
legal aid, will continue to limit the effectiveness of legal aid to suspects
and accused persons. Nevertheless, through the adoption and
national transposition of the Directive on Access to a Lawyer, the issue of
legal aid is likely to be brought within the scope of EU law (Article 51 of the
Charter). This would mean that the Court of Justice could assess the adequacy
of the Member States’ criminal law legal aid regimes on the basis of Article 47(3)
of the Charter. This access to future judicial review could lead to an
improvement, but given the fact that the scope of Article 47(3) has only been
tested to a limited extent in Court, any action will be reactive to individual cases
being brought to the Court, and it is unlikely that this will result in a broad
improvement in the short to medium term of the protection of fundamental rights
and mutual trust. From a wider EU perspective, the absence of
common minimum standards on the right to legal aid will continue to cause
concern to the judicial authorities in the state being asked to apply an instrument at the request of another Member
State, where there are deficiencies in the legal aid system of this other Member State that undermine confidence in the
effective respect of the rights to a fair trial. In the light of the current on-going reforms of criminal legal aid
systems, in the future legal aid in the Member States could be reduced significantly.
This could lead to a violation of fundamental rights of a sufficient level to
be invoked to refuse judicial cooperation more systemically and impair mutual
recognition as provided by Article 82 TFEU. The need to improve mutual trust will become even more
pressing with the implementation and application of the raft of EU judicial
cooperation instruments besides the EAW, such as the three “detention” Framework
Decisions, the Freezing and confiscation Framework Decisions, where the absence
of legal aid in the underlying criminal proceedings in the executing State may
raise doubts as to the respect of fair trials in that Member State. Indeed,
mutual trust is needed to ensure a smoothly working
mutual recognition system, where all the mutual recognition instruments will be
correctly applied, especially instruments where access to a lawyer free of
charge will be a fundamental part of the fair trial rights (such as in the
European Investigation Order). Mutual trust would not be strengthened if no
action on legal aid is taken. Increased movement
of citizens between Member States[87]
will lead to a greater need for judicial cooperation in criminal matters
between Member States in the future. 4.5. Does
the EU have power to act? 4.5.1. The
legal basis The EU's legislative competence for laying
down minimum rights in criminal procedure is set out in Art 82(2) (b) TFEU.[88] Pursuant to this provision,
minimum rules concerning the rights of individuals in criminal procedure may be adopted by means of
Directives, to the extent necessary to facilitate mutual recognition of
judgments and judicial decisions and police and judicial cooperation in
criminal matters having a cross-border dimension. While Article 82 (2) (b) TFEU
makes explicit reference to Directives, this legal basis would indeed also
allow for adopting any less intrusive measure, as examined in the policy
options, according to the principle the larger contains the lesser. Any EU instrument will apply to all
criminal proceedings, including purely domestic ones, irrespective of whether
they present a cross-border element. While Art 82(2)(b) TFEU refers to
cross-border proceedings, it has in relation to the previous instruments in the
Roadmap been concluded that a precise, ex ante categorisation of criminal
proceedings as cross-border or domestic is impossible[89] in relation to a significant
number of cases: for instance, a purely domestic procedure may take on a
cross-border dimension at a later stage, when the suspect flees to another
country or when there is a need to gather relevant evidence in another Member
State. Moreover, the objectives can only be met if
minimum rules apply to all criminal procedures. In order to improve mutual
trust and judicial cooperation, judicial authorities need to be aware that
sufficiently high fair trial standards apply across the board in the
jurisdictions of other Member States. If Member States were at liberty to apply
lower standards to purely domestic procedures, the requisite mutual trust
between judicial authorities could not be boosted. As concerns the need to
safeguard the fundamental rights of citizens, the enactment of minimum rules
for cross-border procedure only, far from addressing the problem, would create
two different classes of defendants in criminal procedure, one with more rights
than the other. Such a distinction made on the basis of the cross-border nature
of the procedure, would lead to unreasonable differentiation and would
eventually be detrimental to the protection of fundamental rights. In addition,
the Charter guarantees rights to everyone suspected of a criminal offence,
whether involved in cross-border or purely national proceedings. 4.5.2. Subsidiarity:
Why the EU is better placed to take action than the Member States It is considered that
there is a need for EU action based on the following factors: (a)
Mutual trust as a condition for mutual
recognition: The EU is establishing its own, unique
system of judicial cooperation based on the principle of mutual recognition throughout the EU. Such a novel
system calls for a guarantee of minimum standards of fundamental procedural
rights protection in the EU. The problem has a cross-border dimension because
if certain Member States do not respect procedural rights, this creates
problems for other Member States. For example, if a judicial authority is
requested to execute a court ruling from another Member State where the
standards in the proceedings have not been adequate, it may either refuse to do
so, or may request additional information which would result in delayed
execution and consequently delayed justice (b)
Free movement of persons: Persons can be involved in criminal proceedings outside their own
Member State and the needs of those suspected and accused persons need to be
tackled at EU level. In the European Union people are constantly travelling and
moving across borders. Around 13 million Europeans live outside their home country, 10% of Europeans have lived and
worked abroad during a period of their lives and 13% have gone abroad for
education or training.[90] These numbers show the importance of ensuring proper, effective
action on the rights of those who get involved in criminal proceedings, in
their own country or while travelling or living abroad. The EU must ensure that
suspects and accused persons benefit from a common minimum level of protection
and are confident that there is a right to an effective access to a lawyer and
legal aid, should they be subject to criminal proceedings when abroad. (c)
Insufficient enforcement mechanisms under
ECtHR: The ECHR already sets European-wide fair
trial standards, but with respect to legal aid its case-law has been very
scarce. Moreover, the ECHR's enforcement mechanisms cannot guarantee a
sufficient and consistent level of compliance by its signatory States,
including EU Member States. Similarly repeated censure by the CPT (which in
some Member States has been repeated over the course of a number of visits) has
not proved adequate to change the practice of Member States. Moreover, the system of protection granted by
the ECtHR is ex-post only. Ensuring justice in individual cases ex-post
serves a different purpose from laying down generally applicable rules ex-ante
and can never be said to be equivalent. There is no enforcement mechanism
comparable to the EU infringement proceedings, if it is found that a Member
State is in breach of the Convention. Moreover, the enforcement system of the
ECHR suffers from a huge backlog of cases awaiting disposal at the ECtHR[91],
so a remedy for the violation may come many years after. There are also
practical difficulties in bringing a case, e.g. the requirement to pursue
domestic appeals and the application to the ECtHR can
be too expensive for some applicants in the absence of legal aid. As a
consequence, many people whose rights have been violated never bring an action
at the ECtHR. 5. Objectives Objectives: General: || · To guarantee for EU citizens an effective high-level standard of protection of fundamental procedural rights in criminal proceedings. · To enhance mutual trust thus facilitating mutual recognition of judgments and judicial decisions in the EU and improving judicial cooperation in the EU. Specific: || · To ensure that suspected and accused persons, have access to and are afforded adequate legal aid throughout criminal proceedings, at a level that ensures an enhanced mutual trust, · To ensure that the right of access to a lawyer, as provided for by Directive 2013/48/EU on the Right of access to a Lawyer, for suspected and accused persons and persons subject to EAW proceedings is made effective through ensuring legal aid Operational: || 1) To ensure that legal aid is available to persons subjected to an EAW, 2) To ensure access to legally-aided assistance ("emergency defence") at the first stages of the procedure before the formal decision on legal aid has been made, 3) To ensure effective access to legal aid for suspected and accused persons that do not have sufficient means (means test), and where it is necessary to ensure effective access to justice (merits test), 4) To ensure that Member States take measures to improve the quality of legally aided services. 6. Policy
Options The present initiative forms part of a package
of measures for improving mutual trust. Only once all the measures envisaged in
the Stockholm Programme are in place will it be possible to achieve the general
objective. In accordance with the Communication from
the Commission on the Strategy for the effective implementation of the Charter
of Fundamental Rights by the European Union[92], this Impact
Assessment Report also examines
the impact on the Fundamental Rights of the options proposed, in particular in
the light of the 'fundamental rights check list' presented in the
Communication. All the policy options are intended to
operate in the framework of the previous Stockholm programme and Roadmap Measures
and have the same scope of application. In previous measures, suspected or
accused persons has consistently been used as the category of persons
falling within the personal scope of the action. This encompasses all persons
who are involved in criminal procedure, against whom a suspicion that they have
committed a criminal offence exists, irrespective of the terms used in domestic
law. It encompasses also childrens and other vulnerable suspects. The personal
scope also covers persons subject to EAW proceedings. The temporal scope for
the other fair trial rights instruments is "from the time a person is
made aware that he is suspected or accused of having committed a criminal offence
until the conclusion of the proceedings". The latter term is understood
to mean the final determination of the question whether they have committed the
offence, including, where applicable, sentencing and the resolution of any
appeal. 6.1. Discarded
options 6.1.1. To
set out a common harmonised EU standard for eligibility testing for the EU
(i.e. require a cumulative means and merits test) The option of introducing a common harmonised
eligibility test, and require all Member States to introduce a cumulative merits
test and means test has been discarded. This would restrict the
protection of fundamental rights in a number of Member States as compared to
the current situation. While the ECHR and the Charter contain a cumulative means and a merits test,[93] 16 Member States operate only
one of the tests[94]
and in those Member States, it is hence likely that access to legal aid is wider
than what is required by the ECHR (provided that the test in question on the
means or the merits is not too narrowly defined). Requiring these Member States
to apply an additional criterion would restrict the circle of persons
benefitting from legal aid compared with the situation today. The EU cannot do
so in an instrument aiming at the protection of rights of suspected and accused
persons; Member States must be able to maintain a higher level of protection. 6.1.2. To set
down harmonised levels for remuneration of legal aid practitioners The option to introduce some harmonised
quantitative EU level of remuneration for legal aid lawyers as proposed by
stakeholders has been discarded as it is not possible to assess what level of
remuneration would be adequate given the difference in standards of living, the
readiness of lawyers to carry out defence work, the complexity and lack of
comparability of legal aid remuneration regimes and fees charged by lawyers
when acting privately. 6.2. Overview
of policy options We have considered 4
options: retention of status quo (option 1) and three other policy
options. The retention of status quo would involve taking no further action on
EU level, while the 3 other options will improve the fair trial rights by
bettering the right to legal aid for suspected and accused persons in the EU. The
three options range from low level of obligation – medium – high level of
obligation. Option 1 - Status quo || Retention of status quo. No action at EU level. Option 2 – Low level of obligation || Least ambitious option through practical measures: Combination of actions on capacity building, making information more easily available and exchange best practices between the Member States in expert group on the topic, with the possibility to compile such best practices into practitioners' guidelines. Option 3 – Medium level of obligation || Legal instrument – sub-option 3(a) through a recommendation or sub-option 3(b) through a Directive, or a combination of both: partly setting minimum qualitative standards as provided by ECHR and the Charter, partly seeking to enhance predictability and raising the standard in some Member States. Goes beyond low intervention, without setting out detailed prescriptive action, by leaving discretion to the Member States in their implementation. Option 4 – High level of obligation || The most ambitious and prescriptive option through a Directive providing detailed minimum harmonised criteria on access and quality of legal aid, to some extent going beyond the qualitative standards set out in the ECHR. 6.3. Detailed
description of the options Policy option 1: the status quo, has been presented in
the baseline scenario (see Section 4.4). Policy option 2: This option would consist of a number
of non-statutory measures: The action would aim at capacity
building, e.g. by making funds, including EU funds under the Justice
Programme 2014-2020, available for training of lawyers involved in providing
emergency legal defence and ordinary legal aid services. Training would also
involve staff from the competent authorities deciding on applications on legal
aid (judicial authorities and legal aid bureaus). The delivery of training would remain the responsibility of
Member States. The action would also involve awareness
raising. It would encourage the Member States to provide information
to citizens confronted to justice systems and practitioners on the right to
legal aid including in case of EAW proceedings, on websites (e.g. national ones
and the EU e-justice portal) and leaflets (e.g. as concerns eligibility
criteria, how and where to apply for legal aid, how to ask for review of the
decision, possible responsibility of repayment). It would also invite Member States to collect
information on different aspects of legal aid (such as the means and the
merits test, the rates of remuneration of legal aid lawyers, legal aid lawyers
specialised in EAW proceedings) and to communicate the information to the
Commission that will make such information available in a comparative format by
a study (on a yearly basis). The Commission would create an expert
group on criminal legal aid at EU level, aiming at exchanging and
establishing best practices on aspects of such as how to ensure a practicable
emergency defence, an efficient administration of legal aid (e.g. independence
of appointing authorities, time-limits, judicial review) and quality legal
advice (qualification, training, possibilities for monitoring). On this basis,
the expert group could instruct the production of best practice guidelines
to be disseminated by the Commission. Policy Option 3: goes further than option 2 in defining what the common minimum
standards on legal aid at EU level and, to some extent, clarifying in a legal
instrument the case law of the ECHR, for example by explicitly setting out the
criteria to be used in the eligibility testing. The option also draws on
existing standards such as the UN Recommendation, for instance as regards the
eligibility criteria, emergency defence, and the quality of legal aid
providers. This option has been split into two sub-options depending on the nature
of the legal instrument through which it may be realised: Option 3(a)
through a Recommendation; Option 3(b) through a Directive. These two
sub-options may also be combined by providing for some elements in a binding
legal instrument, while providing for the others in a non-binding instrument
(see further Section 8). Member States would need to provide legal aid in EAW proceedings,
when they are the executing Member State or when they are the issuing Member
State, subject to eligibility testing according to the law in the relevant
Member State. This Policy Option would require Member States to ensure that there
is an emergency defence system[95]
in place to ensure effective access to a lawyer and legal aid before the first
questioning at police station for all persons deprived of liberty, including
vulnerable suspects, until the formal decision on eligibility for legal aid is
made.[96]
It would, nevertheless, be possible for Member States to recover the sums spent
on the emergency defence in case the formal eligibility assessment shows that the
suspected or accused persons do not fulfil the criteria for legal aid. (i.e.
the means and/or the merits test). As regards the eligibility criteria for legal aid, this
option would clarify that a case-by-case approach is needed in the assessment,
and provide objective factors from the ECHR case-law and UN principles and
guidelines (Guideline 1 para 40) that the competent authorities in the Member
States should take into account when assessing the means (made on the basis of
objective factors such as income, capital or family situation), and/or the
merits test (seriousness of the offence and the severity of the potential
sentence, the complexity of the case, and the personal situation of the
defendant).[97]
This Option would allow Member States to continue operating the model for
eligibility testing that they have chosen (i.e. only a means test, only a
merits test or a combined means and merits test), while still complying with
common minimum criteria. As concerns the quality of legal aid services,[98] Option 3 would require Member
States to introduce accreditation and monitoring schemes, and ensure
professional training for legal aid practitioners.[99] It would also provide that
remuneration for legal aid practitioners needs to be proportionate to the case
at hand. Policy Option 4: would be legally binding and more prescriptive than option 3(b). It
will provide more detailed criteria on access to legal aid, to some extent
going beyond ECHR standards as it will lay down e.g. a harmonised means test. The
obligations with regard to emergency defence and making legal aid available in
proceedings under mutual recognition instruments would be more onerous on the
Member States. In EAW proceedings,
access to legal aid would not be subjected to the national eligibility
criteria, but should always be granted as the person is deprived of liberty and
the situation thus is comparable to that of emergency defence. Moreover,
operating a means and a merits test in cross-border proceedings meet practical
obstacles likely to substantially delay the legal assistance while the person
is in custody and the time limits under the EAW are running. With regard to emergency
legal aid, Option 4 would make this available to everyone before their
first police station interview if a formal decision on legal aid has not yet
been made, i.e. also persons at large would be able to benefit from free legal
advice at the first stages of their criminal proceedings, subject to the
possibility for the State to recover the costs if the subsequent eligibility
assessment shows that they are not eligible for legal aid. As regards the eligibility
criteria, the Directive would provide a minimum income threshold (based on
a % of the average income threshold in the relevant Member State) for each
Member State.[100]
Also the merits test would be more closely harmonised by setting out e.g.
special categories of persons that always should be considered fulfilling the
merits test (certain vulnerable suspects such as children) and it would also
provide that the merits test would be fulfilled for all offences that carry a
custodial sentence over a certain threshold under the applicable domestic law. As regards the quality
of legal advice under legal aid schemes, the option would be equal to Option
3b.) General problems Specific Objectives Operational Objectives Cluster of policy options Comparative
table of Policy Options 3-4 || Policy Option 3 || Policy Option 4 Underlying cause 1: Insufficient possibility to access legal aid in extradition proceeding under the EAW in executing and issuing Member States Objective: To ensure that legal aid is available to persons subjected to EAW proceedings, both in the executing and issuing Member States Legal Aid in EAW proceedings || Require Member State to ensure that legal aid is available in the executing Member State and in the issuing Member State, subject to a means and/or merits test, as applicable in the relevant Member State. || Require Member States to ensure that legal aid is provided in both the executing and issuing Member States, without a means and/or merits test. Underlying cause 2: Timing – Legally aided assistance is not always available at the early stages of the proceedings Objective: To ensure access to legally aided assistance ("emergency defence") at the first stages of the procedure Emergency defence || Require Member States to ensure a system of access to emergency legal aid available free of charge for persons deprived of liberty, without first having recourse to a means or merits test, where a suspect has access to a lawyer in accordance with Article 3 of the Directive on Access to a Lawyer, until release from detention or the formal decision on legal aid is made. Provide possibility for Member States to retroactively see repayment of the legal aid granted at this stage, in case the eligibility criteria for legal aid are not met in the subsequent assessment. || Require Member State to ensure a system of emergency legal aid available free of charge for all suspected and accused persons that are questioned by the police and that have a right of access to a lawyer under Article 3 of the Directive on Access to a lawyer, without the need for a means or merits test, until the formal decision on legal aid is made. Provide possibility for Member States to retroactively see repayment of the legal aid granted at this stage, in case the eligibility criteria for legal aid are not met in the subsequent assessment. Underlying cause 3: Too restrictive eligibility criteria to qualify for legal aid Objective of EU action: To ensure effective access to legal aid for suspected and accused persons that do not have sufficient means (means test), and where it is necessary to ensure effective access to justice (merits test) Eligibility criteria || Means test: Require that Member States ensure that the authorities making the decisions on legal aid take into account certain objective factors (family composition, income) when establishing whether the means test has been met. Merits test: Provide for minimum qualitative criteria to be respected when applying the merits test as per ECHR case-law and UN guidelines (seriousness of the offence, the personal situation of the defendant, severity of the potential sanction, the complexity of the case). Case-by case analysis: Ensure that rigidly set eligibility tests do not hamper fair trials rights, but that the Member States' systems ensure flexibility. Require a case-by-case approach. For the means test, it means that the actual possibility to pay in the case at hand is assessed (i.e. it might be more difficult to afford defence in a complex murder trial than in a shoplifting case). For the merits test, there must always be a possibility to have the whole situation assessed and it should not be decided only on the basis of the potential sanction. || Means test: MS that operate a means test must make legal aid available to everyone who meets the harmonised EU formula, based on a minimum income threshold, calculated per Member State. Merits test: Provide detailed harmonised minimum rules for when the merits test is met, including when deprivation of liberty above a certain minimum length is in the scale of crime, and for certain vulnerable categories of suspects. Case-by case analysis: As in option 3. Underlying cause 4: Shortcomings in quality and effectiveness of legal assistance provided through legal aid schemes Objective: To ensure that Member States take measures to improve the quality of legally aided services Accreditation, training, quality control, funding of the legal aid system || Require Member States to ensure that there are mechanisms in place for quality control, and requirements of accreditation and continuous professional training for lawyers participating in the legal aid schemes. Require Member States to ensure that remuneration of legal aid services is proportionate to the complexity and duration of the case at hand and ensures the provision of effective legal assistance. || As Option 3, and in addition: Set out prescriptive requirements on remuneration for legal aid providers (taking account of different income levels in MSs). Require MS to pay legal aid lawyers within a set number of weeks following the closure of the case. DISCARDED 7. Impact
Analysis of Policy Options The options have been
assessed on the basis of the effectiveness in achieving the specific and
operational objectives in largely qualitative terms.[101] All policy objectives
envisage equal treatment of EU and non-national EU nationals; third country
nationals would receive the same protection as EU citizens in criminal
proceedings throughout the EU. 7.1. Policy
option 1: Status quo Description: No action is taken on EU level. Expected Impact Effectiveness in meeting the policy objectives || · No incentive for any action to achieve common minimum standards for the right to legal aid or to improve mutual trust and the effective working of mutual recognition instruments. · Importantly, in many Member States, taking no decisive corrective measures would not meet the needs of those requiring publicly-funded legal assistance. The right of access to a lawyer guaranteed in the Directive on Access to a Lawyer would be likely to remain ineffective especially at the police station stage and for legal advice in the issuing Member States of EAWs. · The right to publicly funded legal representation will remain governed exclusively by the Member States’ domestic system of legal aid, as well as the ECHR and the judicial oversight of the ECtHR. Thus, divergences between the legal aid systems of the Member States would be likely to grow. Impact on fundamental rights || · None. Access to legal aid will continue to be protected at Member State level, through the ECHR, and the Charter and the current problems of limited protection would continue which could risk declining standards of justice and increased risks of miscarriages of justice. · This situation would not provide adequate protection of the right to legal aid for suspects or accused persons in the EU or the right of access to a lawyer according to the Directive on Access to a Lawyer. There is a risk of a declining perception of the EU as a model in upholding human rights, especially fair trials rights. Political Feasibility || · N/A Impact on the legal system of Member States || · None. Domestic justice systems may evolve towards more convergence in the light of ECtHR jurisprudence but it is not likely that this will happen in the short to medium term. Costs || · None. There are no immediate new financial burdens associated with this option. This option is also unlikely to lead to the reduction of costs of ECtHR and domestic appeals, re-trials and aborted prosecutions due to breach of suspects’ fair trial rights. On the contrary, given the increase in applications to the ECtHR, costs for Member States linked with damages awarded to individuals are likely to augment. 7.2. Policy
Option 2: Low level of obligation Expected Impacts Effectiveness in meeting the policy objectives || · Low. The actions under this Policy Option are of some practical benefit and can lead to better application of already existing domestic standards. It can bridge information gaps on legal aid in the domestic systems and in cross-border cases, as well as create some impetus for change by exchanges of best practices. · Even where action is taken, it will lead to few changes and improvements in the protection of the fundamental right to legal aid. However, it is unlikely that the action will lead to any commonly defined minimum standards. It is not likely to be sufficient to address deficiencies in the legal framework of the Member States, such as the lack of legal aid for EAW proceedings and emergency legal aid, or narrowly defined eligibility criteria. · There will be a very limited effect on the strengthening of mutual trust and the working of the mutual recognition system. Some extended benefits could be achieved through the establishment of guidelines by the expert group. Impact on fundamental rights || · Low. The strengthening of the protection of fundamental right to legal aid will be left to the goodwill of national legislatures. The impact of this option and the enhancement of the right to a fair trial and the rights of defence will depend on how Member States will choose to comply with the best practice examples or guidelines, how the information on legal aid will be diffused and how the training is carried out. · In general, Option 2 is likely to ensure a higher positive impact on suspect's right to a fair trial and right to defence than Option 1. However, consisting mainly of soft-law measures and given the overall situation as regards the lack of possibilities to enforce those rights, the positive impact will remain limited. Social Impacts || · Low. The social impact will be positive but limited. It would raise awareness of the right to legal aid for suspected and accused persons. Capacity building and training activities of professionals could improve access to legally-aided assistance for suspected and accused persons in the long-term . Political Feasibility || · High. As Member States will make limited commitments, except certain reporting tasks, this option should not meet any significant objections. Impact on the domestic justice systems || · Low. The overall impact on domestic justice systems will be very limited since the actions are non-binding and do not directly aim at achieving common minimum standards throughout the EU. It might lead to information being more easily available for suspected and accused persons and that lawyers and staff of the judicial systems have better knowledge on legal aid. Legislative reforms will not be imposed, but left to national legislators. Guidelines and recommendations may help the judiciary to interpret domestic provisions to provide a higher protection, but it is unlikely that the effect would be significant. Costs || · Low. The costs for this option will be limited. They will be borne both by the Member States and by the EU. || Total EU cost (Millions of Euros) EU expert group on criminal legal aid || €0.2 million Awareness raising and data collection || €0.25 million Training of defence lawyers and legal aid officials || €22.5 million Total || €23 million EU budget: €0.45 million/year Member States' budget: €22.5 million Exchange of best practices - EU expert group on criminal legal aid The costs are estimated at €0.2 million/year for the EU budget The costs are
calculated on the basis of the EU organising 2-day-meetings a year, to
exchange best practices and draw up guidelines. The average costs of
organising one expert meeting (2 experts/Member State, travels, per diem)
amounts to ca. €0.1 million. Translation
costs of the guidelines would be marginal and borne by the Commission. Awareness raising and data collection €0.25 million The
administrative burdens and costs for the Member States to collect legal aid
data and share it with the Commission are marginal and have been calculated
as 0. Also the costs and administrative burdens for the EU to make such data
available on e.g. its e-justice website are marginal. To prepare a yearly comparative
report with a contractor, the costs are estimated to be ca €250.000. Disseminating
information on legal aid in criminal cases to suspected and accused persons
by electronic means or by leaflets, would have some costs for the Member
States, but they would be minor. Training of defence lawyers and legal aid officials The Member
States would aim at organising workshops to spread the best practice
guidelines with staff administering legal aid (judges, prosecutors, police
officers, staff of legal aid authorities) and defence lawyers. A 2-day-training
of 10 % of lawyers in the EU in groups of 10 would amount to €15
million/year for all EU Member States.[102]
This cost could be partly met by EU funds for training with action grants
under the Justice Programme 2014-2020. Training for
other officials involve persons from Ministries of Justices, judges,
prosecutors, legal aid board staff and police officers and would amount to ca.
half of the cost for training of defence lawyers, i.e. €7,5 million. 7.3. Policy
Option 3: Medium legal obligations This option has been split into two
sub-options depending on the legal instrument through which it may be realised:
Option 3(a) through a Recommendation; Option 3(b) through a Directive.
These two sub-options may also be combined (see further under Section 8) and
address some elements in a Directive and some in a Recommendation. Such a
combination would ensure that legally binding action is taken with respect to
the questions that are the most pressing to ensure strengthening of mutual
trust (such as emergency legal aid for suspects and legal aid in EAW
proceedings), to allow for the smooth functioning of mutual recognition and to
ensure that the right of access to a lawyer becomes effective. 7.3.1. Option
3(a) – Recommendation Expected Impact Effectiveness in meeting the policy objectives || · Low-Medium. Compared to Option 2, this option sets out common minimum standards on the fundamental right to legal aid in a legal instrument. The existence of recommendations on minimum standards on legal aid will horizontally improve mutual trust and improve mutual recognition, provided that the standards are incorporated into national legislation and applied. · Assuming Member States implement the Recommendation, the option will have positive impacts with regard to the achievement of the policy objectives, as follows: ü Legal aid in EAW proceedings: The right to access to a lawyer in EAW proceedings as set out in Directive on Access to a Lawyer will be rendered effective as legal aid. Hereby, the right to a fair trial is safeguarded also in such proceedings and will ensure the smooth functioning of this judicial cooperation instrument and avoiding unnecessary delays. ü Emergency legal aid: By requiring the availability of a system of emergency legal aid for persons deprived of liberty at the most crucial point of the proceedings until the formal decision on legal aid is made, fair trial rights and Member States' trust in each other's systems will be significantly improved. ü Eligibility criteria: By providing common factors to take into account in the evaluation of the eligibility for legal aid, the framework of the assessment as developed in ECtHR case-law is made clearer and convergence is promoted, which will contribute to increased mutual trust in other Member State's justice systems. ü Quality of legally-aided services: There will be improvements as Member States should set up mechanisms to ensure the quality, including ensuring proportionate remuneration, systems of monitoring, accreditation and continuous professional training for legal aid professionals. Impact on fundamental rights || · Low-Medium. The right to liberty and security (Article 6 Charter) and the right to fair trial (Article 47 Charter) as well as the right to be presumed innocent (Article 48 of the Charter) would be enhanced as access to legal aid will allow suspected and accused persons to benefit from the right of access to a lawyer and defend their rights more effectively at pre-trial stages and trial stages. By providing for emergency legal aid, the pre-trial detention rate is expected to fall. By setting a minimum qualitative criteria for the means test, it will further equality before the law (Article 20 of the Charter) of persons with insufficient means. · The impact of this Option, however, will depend on how Member States implement the Recommendation. Some improvement in the right to a fair trial and defences are likely to accrue, but the absence of any method of enforcement might result in only a variable improvement in the Member States. · This option would not address the problem of ensuring legal aid in cases of mandatory legal assistance for children, as provided under the proposal on vulnerable suspects. Social impact || · Low-Medium. If properly implemented by Member States, this option will have positive social impacts e.g. ensuring equal access to justice by ensuring legally-aided assistance for persons with insufficient means, if they are deprived of liberty, and in Member States that apply a means test. It will also reinforce the quality of legally-aided assistance that indigent persons benefit from and thus make the right to a good defence less dependent on financial resources of a person. Political Feasibility || · Medium. Given that this policy option seeks to establish minimum standards above the levels currently applicable in the Member States, it will involve corresponding costs for a number of them. Negotiation and implementation will entail discussions, in particular with those Member States which have the lowest standards in place. Impact on the domestic justice systems || · Medium. If implemented, this Policy Option would require changes in a number of Member States that currently have a low standard regarding the right to legal aid for suspected or accused persons in criminal proceedings. It, however, leaves room for flexibility as it sets out generally worded obligations, and thus ensures respect for legal tradition and culture as provided for in 82 TFEU. Most Member States, albeit to a varying extent, will have to alter their regulations and practice to transpose the Directive provisions in some way, but for a small number of Member States, more considerable changes will be required. · Since the Recommendation is non-binding, it is difficult to foresee the impact of the instrument as the extent of the Member States’ implementation of the standards depends on their willingness to comply. Yet, the existence of a Recommendation and the Commission's undertaking to review compliance after three years will exert political pressure to comply, and given the general provisions of the instrument, Member States would have a certain scope in how to comply. Costs || · Medium-High. The financial or administrative burdens resulting from this option will depend on the level of Member States' implementation of all or some of the provisions in the recommendation. · In a best case scenario, should all Member States comply with the recommendation, the costs would be the same as under option 3(b) (see the calculations below). It is however not likely that all Member States will fully comply with the Recommendation, and the costs are therefore possibly considerably lower than the ones indicated in 3(b). · The option would also reduce current costs of ECHR and domestic appeals, re-trials, and aborted proceedings due to inadequate legal representations. 7.3.2. Option
3(b) – Directive Expected Impact Effectiveness in meeting the policy objectives || · High: This option will lead to a significant improvement as suspected or accused persons will benefit from common minimum standards on legal aid which, in contrast to Option 3(a), are legally binding and enforceable before domestic and EU courts. This option will thus have a very positive impact with regard to the attainment of the objectives. · The option would significantly improve mutual trust and judicial cooperation; judicial authorities would have greater mutual trust owing to the existence of legally binding common minimum standards on the right to legal aid, and it is likely that there would be fewer refusals to cooperate with other Member States (with a corresponding fall in the costs of associated delays, aborted proceedings, re-trials and appeals.) · More specifically, certain areas where this policy option would have a significant impact on strengthening of the fundamental right to legal aid in Article 6 and Article 47 of the Charter, and make the right of access to a lawyer under the Directive practicable and effective, as set out in relation to option 3(a) above. Impact on fundamental rights || · High: This option would have the same positive impact on fundamental rights of suspected and accused persons, as in option 3(a), with the additional benefit of making those impacts certain as the measure would be legally binding. · Social impacts || · High: This option has the same positive social impacts as Option 3(a), with the additional benefit of making those impacts certain as the measure would be legally binding. Political Feasibility || · Medium-Low. Given that this policy option foresees obligations on Member States and will involve corresponding costs, negotiation and implementation will entail severe discussions, in particular with those Member States which currently have the lowest standards in place. Yet the general manner in which the obligations are set out make this a more feasible option than Option 4. Impact on the domestic justice systems || · Medium-High: This option will require legislative reforms in a number of Member States. It, however, leaves room for flexibility as it sets out generally worded obligations, and thus ensures respect for legal tradition and culture as provided for in 82 TFEU. Most Member States, albeit to a varying extent, will have to alter their regulations and practice to transpose the Directive provisions in a limited way, but for a small number of Member States, more considerable changes will be required. Costs || · High. Almost all costs will have to be borne by public administrations on both national and local level. · As the Directive partly aims at providing for compliance with ECHR case law, the costs partly relate to complying with ECHR, irrespective on any EU law legislation. · The option would also reduce current costs of ECHR and domestic appeals, re-trials, and aborted proceedings due to inadequate legal representations.[103] · For details, see Annex IV (or Annex V for break down per MS). || Total EU cost (Millions of Euros) Legal Aid in EAW Proceedings || €0.13-0.24 million Emergency legal aid for persons deprived of liberty || €52-81 millions Eligibility criteria || €181-287 millions Quality control || €13.4 million Total || €247 million-382 million Legal Aid in EAW proceedings The costs are estimated in the range between €0.13 million and €0.24 million/year Providing legal
aid in the executing Member States would cost between €0.03 million and €0.13 million. The limited costs are due to the low
number of EAWs in the EU and the fact that this right is provided for in a
number of Member States. It would have impacts on FI, LV, PL, PT, RO, ES and
only marginal impacts on some other Member States. Legal aid in the
issuing Member States would cost between € 0.1 million-0,12 million and it
would affect all Member States, but in a limited manner. This is so as the
work of the lawyer in the issuing Member State is limited and the number of
EAWs is limited. Emergency Legal Aid The costs are estimated to range between €52 million and 81 million (EU wide/year) The costs relate
to providing emergency legal aid for suspected and accused persons deprived
of liberty in countries where it does not exist and in a number of countries
where there is evidence that it is not properly working or where the first
interrogation can take place before there is access to legal aid. From this
sum, we have deducted the cost savings because of an expected fall in
pre-trial detention by 20 %, based on experience in Member States that have
introduced emergency legal aid. Further deductions have been made, taking
into account the sums which will be recovered from the suspected and accused
persons who ultimately do not fulfil the eligibility test. Member States
affected: BG, CY, EE,
EL, FI, IT, PL, PT, RO, SI, DE, HU. The main costs are however born by DE
50%, IT 20%, PL 12 %, HU 6 %, EL 5 %). Moreover, the
fact that one ensures legal aid to obtain legal advice from the early start
of the proceedings can lead to cost saving as it avoids delays, challenges of
evidence, appeals and retrials. Means and Merits Test The costs are estimated to range of between €181 million and €287 million (EU wide/Year) Based on a scenario where the Member States will
reach a situation of 20 % of criminal cases benefitting from legal aid (which
is still below the EU average of 27 %, but which would yet bring the level of
protection up in a number of Member States), the costs of the measure with
regard to who is entitled to legal aid is between €181 million and €287 million.
Estimated cost for jurisdictions applying only a
means test: €11-22 million (HR, LV, MT, PL, SK, SL). No estimated cost for jurisdictions applying only a
merits test (DE, SE): Estimated cost for jurisdictions applying both a means
and a merits test: €264 million (AU, CY, HU, IT, NL, RO). The total impact
reflects the costs that would be borne by mainly by a selected number of
Member States with a particularly low % of legally aided cases (Italy €185
million, Hungary €50 million, followed by NL 25 million, PL 10 million, SI 10
million). Quality improvement The costs are estimated at maximum €13.4 million (EU wide/year) The costs take into account costs of operating an
accreditation scheme, providing mandatory training of defence lawyers
(calculated on training of 10% of the lawyers) and ensuring that there is a
monitoring mechanism for legally aided work in place: Cost of training for defence lawyers: Maximum cost of €4.6 million/ a year over 5 years Continuous professional training: €7,5 million/year Accreditation and monitoring: €1.3 million EU wide/year The above
scenario assumes that no training, monitoring or accreditation currently
takes place. Although exact details of costs are not available, we know that
it is 18 Member States do not have any particular training requirement to do
criminal defence work. 8 Member States do not provide any monitoring (BG, CY,
DE, EL, HU, IE, LU, NL). As the costs are calculated for all Member States,
they are likely to be significantly reduced given that a number of Member
States have some quality assurance in place. 7.4. Policy
Option 4: High level of obligation Expected Impact Effectiveness in meeting the policy objectives || · Very High. This option would have all the strength of the legislative instrument set out above under 3(b) (binding nature, high enforceability) and would have a significant positive impact on meeting the policy objectives, but it will put a high burden on Member States. The choice of a more prescriptive measure than under 3(b) would yield results in terms of increased trust among judicial authorities, and more clarity and higher standards of protection for individuals. · More in particular, the impact goes further than those of option 3(b) on the following points: ü Legal aid in EAW proceedings: Persons arrested for the purpose of extradition would be granted legally-aided assistance on the same conditions as in emergency legal aid situations, and without the delay which a means and/or merits test lead to in a cross-border situation. ü Emergency legal aid: The availability of emergency legal aid in e.g. the police station for everyone who is suspected and accused from before the first questioning until the formal decision on legal aid is made will greatly contribute to the protection of the right to a fair trial and ensure that the right of access to a lawyer is effective. By ensuring in practice an early access to a lawyer, the integrity of the criminal process will be enhanced and the mutual trust will be significantly enhanced. ü Eligibility criteria: The harmonised means test and the stricter conditions under the merits test will considerably enlarge the number of EU citizens that benefit from legal aid and their fair trial rights will be considerably strengthened. Impact on fundamental rights || · High. This option would have a significant positive impact on the fundamental rights of suspects and accused persons according to the Charter, especially the right to liberty (article 6), the right to a fair trial (Article 47) and the presumption of innocence (Article 48). It sets out a high common standard and would lead to a significant improvement of a number of rights, as set out in option 3(b). The difference with the latter is that the impact is sometimes stronger and the fundamental rights of more individuals are enhanced due to the higher level of ambition. · Emergency legal aid for all persons, whether deprived of liberty or not, will have a significant impact on the rights of defence and the right to be presumed innocent, as well as avoidance of ill-treatment in detention. Early intervention with regard to persons that are at large can also avoid pre-trial detentions, thus furthering the right of liberty in Article 6 of the Charter. · This option would improve the rights of children, as children will automatically be considered to fulfil the merits test and thus benefit of legal aid in cases of mandatory legal assistance. · The right to legal aid in issuing and executing Member States in EAW proceedings irrespective of a means and/or merits test avoids the inequality and delays that can stem from applying a means test in cross-border situations. Social Impacts || · High. This option will have high social impacts as it will widen access to legal aid and consequently the possibility of a fair trial for indigent suspected and accused persons. For example, by setting a quantitative means test at EU level for each Member State, more indigent persons will benefit from legal aid. By providing emergency legal aid to all suspects before they are questioned by the police, persons in particularly exposed situation will receive assistance in the interest of justice. Political Feasibility || · Very Low. The option contains legally binding prescriptive obligations and it is likely to yield substantial costs for a majority of Member States. Against the background of the current austerity in the EU, negotiations and implementation will entail very difficult discussions. Impact on the legal system of Member States || · Very High. This option would yield the most significant impacts on the domestic justice systems. The judiciary would have all the necessary tools to uphold the right to legal aid at a very high standard. Compared to option 3(b) it leaves less flexibility in implementation for Member States and would ensure that the domestic justice systems with regard to legal aid are brought in closer convergence, for example with regard to the eligibility criteria. · Significant legislative reforms would need to be carried out to all Member States' legal aid systems. Yet, some of the requirements posed by this option would be hard to accept for some Member States such as emergency defence for everyone (e.g. FR, BE), that "interest of justice" requires legal aid for crimes that carry a minimum prison sentence above 6 months (e.g. SE, DE, BU) and the need for accreditation for legal aid lawyers (most MS). Costs || · Very high. The costs are the highest of all options. Almost all costs will fall on the public administration on local or national level. · The option would also reduce current costs of ECHR and domestic appeals, re-trials, and aborted proceedings due to inadequate legal representations.[104] · For details see Annex IV (or Annex V for break down per MS). || Total EU cost (Millions of Euros) Legal aid in EAW Proceedings || €0.8-1.1 million Emergency Legal Aid || €180-210 million Eligibility criteria for legal aid || €1.4 billion and €92 million (mandatory legal aid for children) Quality improvement || €13.4 million Total || €1.594 million- 1.716 million Legal Aid in EAW Proceedings The costs for introducing legal aid in EAW proceedings, both in executing and issuing Member State, without means or merits test are estimated in the range between €0.8-1.1 million The cost for
introducing legal aid in executing Member States, not subject to means and/or
merits test is estimated at between €0.4 million - €0.7
million. All Member States (except NL) are concerned, most to a limited
extent, for the same reasons cited under Option 3(b). Costs for
introducing legal aid in the issuing Member State would be €0.4 million. All Member States would be affected, but
to a rather limited extent for the same reasons as cited under Option 3(b). Emergency Legal Aid The costs are estimated in the range of €180 million - €210 million across the EU Member States The cost is
calculated for all persons being interviewed at the police station. The sums
recovered from persons that will not ultimately fulfil the eligibility test have
been subtracted as well as the savings from a fall in pre-trial detention. The policy
option would affect all Member States except the UK. Eligibility criteria for legal aid The costs are estimated to amount to a maximum of €1.4 billion across EU Member States. The costs pertain to the extra costs resulting from
widening the number of persons that benefit from legal aid compared to today.
The calculation is made on the assumption
that the means test would be fulfilled by suspects and accused persons
earning under the minimum wage to be eligible for legal aid, or in those
Member States where minimum wages do not exists, a share of 70 % of the
average wage has been applied as a proxy. The option would cost €81 million for jurisdictions
where only a means test is applied. BE, LV, MT, HR, PL, SI, SK, would be affected, but with major impacts
in BE, PL, SI. Would the merits
test require that legal aid is provided for crimes that carry a minimum
prison sentence above 6 months would result in €169 million for
jurisdictions where only a merits test is applied, a cost that exclusively
relates to DE. In Member States applying both a means and a merits
test, this option would cost €1.155 million and would affect all Member
States except FI and IE. 58 % of the costs pertain to IT, 12 % to HU, 13% to
NL). Providing a right to legal aid for children in cases
of mandatory defence would amount to €93 million and would affect AT, CY, FI,
FR, DE, IE, LU, NL, SE, SI, UK.[105] Quality improvement The costs are estimated to be at a maximum of € 13.4 Million/year See above Option
3. 8. Comparative
Assessment Explain why no
preferred option Advice on how the
measures could be combined (also something from 2?) Objectives/ impacts || Policy option 1 || Policy option 2 || Policy option 3a || Policy option 3b || Policy option 4 Meeting the policy objectives || 0 || Low || Low to Medium || High || Very High Impact on fundamental rights || 0 || Low || Low to medium || High || High Social impacts || 0 || Low || Low to medium || High || High Political Feasibility || N/A || High || Medium || Low-Medium || Very Low Impact on legal systems of Member States || 0 || Low || Medium-High || Medium- High || Very High Economical and financial impacts || 0 || €23 million || €247-382 million || €247-382 million || €1.594 million-€1.716 million If Policy Option 1 (status quo)
is pursued the risk of suspected and accused persons not being granted legal
aid and thus being denied access to legal advice would continue and possibly
deteriorate. Although highly feasible, Policy option 1 (status quo) does
not meet the identified objectives and is therefore not further considered. Furthermore,
among stakeholders a large majority supports some EU action in the field and
find status quo to be unsatisfactory.[106]
The measures envisaged within Policy
Option 2 are likely to contribute to the objectives of an EU intervention
in the field, but only to a limited extent. They are likely to have an impact
on raising the awareness of suspects and accused persons as concerns their
right to legal aid, as well as to build capacity among legal aid lawyers and
policy makers with regard to best practices on legal aid issues. However,
Policy Option 2 will not on its own provide common minimum standards and it
thus only has a limited potential to improve the protection of the fundamental
right to legal aid and it will not enhance mutual trust to any considerable
extent. Therefore Policy Option 2 does not sufficiently fulfil the objectives. Policy Option 3 will contribute moderately to meeting the objective of
strengthening mutual trust, though not to the same extent as Option 4 (see
below). However, the higher flexibility left to the Member States makes this
Option considerably more politically feasible to negotiate, shows more
sensitivity to the proportionality of the action and results in substantially lower
financial burdens than Option 4. By providing for action in a Recommendation, Policy
Option 3(a) is more politically feasible than Policy Option 3(b), and
leaves larger room for Member States to implement the obligations under a
longer time-span, allowing them to take into account budgetary restraints. On
the other hand, by being legally binding, Policy Option 3(b) will be more
effective in furthering the mutual trust between the EU Member States and thus
is likely to be more effective in meeting the objectives than Option 3(a). The Member States have all together called
for legislative action with regard to legal aid in the Declaration in Council of
June 2012. Such action is also viewed as necessary by the European Parliament.
Subsequently, some Member States have expressed some reluctance (e.g. CY, DE,
NL, PT) mainly for subsidiarity and budgetary reasons, especially as concerns
an all-encompassing binding instrument with regard to legal aid. Some Member
States strongly support legislative action (SE, FR, BE) – at least with regard
to certain issues. To address the concern for proportionality,
Policy Option 3 could be realised partly by a Recommendation and partly by a
Directive, by combining Option 3(a) and Option 3(b). This would ensure that
legally binding action is taken with respect to the questions that are the most
pressing to ensure strengthening of mutual trust, to allow for smooth functioning
of mutual recognition and to ensure that the right of access to a lawyer
becomes effective (the issues of legal aid in EAW proceedings and emergency
legal aid), while leaving more leeway to the Member States with respect to
the eligibility criteria and the quality of legally-aided services by including
them in a Recommendation, an approach that also find support in among
stakeholders. In the Expert meeting, the possibility to
combine a legally binding instrument with a non-binding instrument was raised
and supported by a number of Member States (e.g. SE, BE, FR). The need for emergency defence services
provided free of charge for persons deprived of liberty has also been one of
the main problems needing to be addressed that was raised in the focus groups[107] and by civil society
organisations, underlining that there needs to be legally binding action on
that issue to make access to a lawyer for persons deprived truly effective when
they are the most vulnerable.[108]
To provide for such emergency defence service
would have financial impacts on 12 Member States (BG, CY, EE, EL, FI, IT, PL,
PT, RO, SI, DE, HU). Taking into account the fall in pre-trial detention and
the possibility to recover sums, the maximum cost of the measure would be ca 80
million euros EU wide per year. The impact on the 5 Member States that are the
most affected is at follows; DE: ca 50 Million, IT: ca 8 million, PL: ca 8
Million, HU: ca 4 million EL: ca 3 million. With regard to legal aid in EAW
proceedings, stakeholders underline that for dual defence to be effective,
there needs to be legally binding action with regard to right of legal aid.[109] Moreover, seen that the EAW
is at the heart of mutual recognition, and the ECHR does not cover EAW
proceedings, there is a need for binding EU action with regard to legal aid in
EAW proceedings. The costs for providing access to legal aid
in the executing and the issuing Member States are very limited, due to the low
number of EAWs in the EU and the fact that this right is provided for in a
number of Member States. The total cost EU wide per year would be between 0,13-0,24
million euros. Action on training and monitoring was
supported in all the focus groups and in the expert meeting for the Member
States, but it was underlined that action should not be too prescriptive in
this respect, but with a preference from non-binding action.[110] Overall, Policy Option 4 is likely
to contribute most effectively to the objective of EU action; it will ensure a
high minimum protection of fundamental rights and thus establish a strong basis
for mutual trust between the EU Member States. It will provide legally
enforceable standards. However, it is the most prescriptive Option and provides
Member States with the least amount of flexibility in implementation. It also
imposes more far-reaching obligations on the Member States and as a result, the
costs for this Option are considerably higher than the other options. It is the
least politically feasible option. 9. Transposition,
monitoring and evaluation Should the measure be in the form of a
Directive, the timeframe for transposition of the Directive by Member States
will be two or three years from its entry into force. As the Directive would create
only a comparatively limited number of obligations for Member States which, to
some extent, mirror existing ECHR obligations or already exist in a number of
Member States, it is expected that a two-year deadline would provide Member
States with sufficient time to effect necessary changes to their respective
national laws and practice. Potential risks to implementation in time would be
identified in an Implementation Plan accompanying the proposal for the
Directive setting out relevant measures by the Commission aimed at countering
these risks. As regards a possible Recommendation, the
Commission would assess its implementation by 3 to 4 years from the adoption at
the latest. In this context, the Commission should assess also whether further
measures to strengthen the procedural safeguards foreseen in the Recommendation
should be proposed. In order to allow for the correct implementation and best
practice exchanges of the Recommendation, and the Directive, the Commission would
establish an expert group on criminal legal aid at EU level. Within this
group, reporting on the implementation of the Recommendation can be made,
the expert group could also instruct the production of best practice
guidelines to be disseminated by the Commission, and be instrumental in the
collection of data from the Member States. Providing for a robust monitoring and
evaluation mechanism is crucial to ensure that the rights envisaged in the
Directive are complied with in practice as well as in legislation. The
Directive will stipulate that Member States should report on the effective
implementation of legislative or non-legislative measures based on the nature
of the proposed changes. Data provided by Eurostat, Eurobarometer
and the Council of Europe will enable the formation of a useful baseline for
monitoring the situation. Besides quantitative data provided by Member States,
other possible sources of qualitative information on legislative and practical
compliance will be gathered. Member States should be encouraged to
collect relevant data to assist in this process as there is currently a lack of
reliable empirical data. Such data should include: More the general cost of
legal aid in criminal proceedings, concrete data especially on the costs of
emergency defense, number of cases that benefit from legal aid (and emergency
legal aid) and number of criminal cases (with breakdown where a suspect is
deprived of liberty or not). The indicators that would be relevant to
monitor the attainment of the objectives are the following: Operational objective || Potential indicator To ensure that legal aid is available to persons subjected to an EAW in both the executing and issuing Member States || · Number of EAWs per MS (when issuing or executing), · number of cases where legal aid is awarded in EAW cases (in the issuing state and in the executing Member State, · Number of denied legal aid applications in EAW proceedings, · number of challenges of EAWs on the basis of deficient legal aid standards in the issuing Member State, · information on the costs per Member State for providing legal aid for EAW cases (both when executing and issuing) To ensure access to legally-aided assistance ("emergency defence") at the first stages of the procedure, || · Percentage of suspected and accused persons deprived of liberty that benefit from emergency legal aid, · Number of cases where a discrepancy is reported between the point at which a suspected or accused person is questioned while having being granted the right of access to a lawyer and the point in time when he has access to state-funded legal assistance. · Number of cases where the right was waived · Average cost per case when providing emergency defence · Number of emergency aid cases where repayment is sought · Number of emergency aid cases where repayment is executed · Reduction of number of pre-trial detentions To ensure effective access to legal aid for suspected and accused persons that do not have sufficient means (means test), and where it is necessary to ensure effective access to justice (merits test), || · Measure increase of persons that benefit from legal aid (with a target that increase should reach between 15-20% of cases benefitting from legal aid) · Share of population that is eligible for legal aid under current means test To ensure that Member States take measures to improve the quality of legally aided services || · Information on general remuneration per legal aid case, number of lawyers doing legal aid defence work, · number of lawyers that are EAW specialists, number of lawyers/government officials trained · Number of complaints regarding insufficient representation, quality or delays in accessing legal aid services The Commission envisages carrying out
specific empirical studies with an emphasis on data collection 3-5 years into
the implementation of each instrument of the Roadmap, to gain in-depth
quantitative and qualitative insights into the effectiveness of the proposal.
All the data collected would enable the Commission to evaluate the actual
compliance in Member States more robustly than using the means hitherto
available. With this current procedural rights package the Commission has now presented
the main Roadmap Measures and it will be essential to evaluate the efficiency
of the Roadmap as a whole. ANNEX I
Procedural Rights Roadmap Resolution
of the Council of 30 November 2009 on a Roadmap for strengthening procedural
rights of suspected or accused persons in criminal proceedings Whereas:
(1) In the European Union, the Convention for
the Protection of Human Rights and Fundamental Freedoms (the ‘Convention’)
constitutes the common basis for the protection of the rights of suspected or
accused persons in criminal proceedings, which for the purposes of this
Resolution includes the pre-trial and trial stages. (2) Furthermore, the Convention, as interpreted
by the European Court of Human Rights, is an important foundation for Member States
to have trust in each other’s criminal justice systems and to strengthen such
trust. At the same time, there is room for further action on the part of the
European Union to ensure full implementation and respect of Convention
standards, and, where appropriate, to ensure consistent application of the
applicable standards and to raise existing standards. (3) The European Union has successfully
established an area of freedom of movement and residence, which citizens
benefit from by increasingly travelling, studying and working in countries
other than that of their residence. However, the removal of internal borders
and the increasing exercise of the rights to freedom of movement and residence
have, as an inevitable consequence, led to an increase in the number of people
becoming involved in criminal proceedings in a Member State other than that of
their residence. In those situations, the procedural rights of suspected or
accused persons are particularly important in order to safeguard the right to a
fair trial. (4) Indeed, whilst various measures have been
taken at European Union level to guarantee a high level of safety for citizens,
there is an equal need to address specific problems that can arise when a
person is suspected or accused in criminal proceedings. (5) This calls for specific action on procedural
rights, in order to ensure the fairness of the criminal proceedings. Such
action, which can comprise legislation as well as other measures, will enhance
citizens′ confidence that the European Union and its Member States will
protect and guarantee their rights. (6) The 1999 Tampere European Council concluded that, in
the context of implementing the principle of mutual recognition, work should
also be launched on those aspects of procedural law on which common minimum
standards are considered necessary in order to facilitate the application of
the principle of mutual recognition, respecting the fundamental legal
principles of Member States (Conclusion 37). (7) Also, the 2004 Hague Programme states that
further realisation of mutual recognition as the cornerstone of judicial
cooperation implies the development of equivalent standards of procedural
rights in criminal proceedings, based on studies of the existing level of
safeguards in Member States and with due respect for their legal traditions
(point III 3.3.1). (8) Mutual recognition presupposes that the
competent authorities of the Member States trust the criminal justice systems
of the other Member States. For the purpose of enhancing mutual trust within
the European Union, it is important that, complementary to the Convention,
there exist European Union standards for the protection of procedural rights
which are properly implemented and applied in the Member States. (9) Recent studies show that there is wide
support among experts for European Union action on procedural rights, through
legislation and other measures, and that there is a need for enhanced mutual
trust between the judicial authorities in the Member States. These sentiments
are echoed by the European Parliament. In its Communication for the Stockholm
programme, the European Commission observes that strengthening the rights of
defence is vital in order to maintain mutual trust between the Member States
and public confidence in the European Union. (10) Discussions on procedural rights within the
context of the European Union over the last few years have not led to any
concrete results. However, a lot of progress has been made in the area of
judicial and police cooperation on measures that facilitate prosecution. It is
now time to take action to improve the balance between these measures and the
protection of procedural rights of the individual. Efforts should be deployed
to strengthen procedural guarantees and the respect of the rule of law in
criminal proceedings, no matter where citizens decide to travel, study, work or
live in the European Union. (11) Bearing in mind the importance and
complexity of these issues, it seems appropriate to address them in a
step-by-step approach, whilst ensuring overall consistency. By addressing
future actions, one area at a time, focused attention can be paid to each
individual measure, so as to enable problems to be identified and addressed in
a way that will give added value to each measure. (12) In view of the non-exhaustive nature of the
catalogue of measures laid down in the Annex to this Resolution, the Council
should also consider the possibility of addressing the question of protection
of procedural rights other than those listed in that catalogue. (13) Any new EU legislative acts in this field
should be consistent with the minimum standards set out by the Convention, as
interpreted by the European Court of Human Rights, HEREBY ADOPTS THE FOLLOWING RESOLUTION: 1. Action should be taken at the level of the
European Union in order to strengthen the rights of suspected or accused
persons in criminal proceedings. Such action can comprise legislation as well
as other measures. 2. The Council endorses the ‘Roadmap for
strengthening procedural rights of suspected or accused persons in criminal
proceedings’ (hereinafter referred to as ‘the Roadmap’), set out in the Annex
to this Resolution, as the basis for future action. The rights included in this
Roadmap, which could be complemented by other rights, are considered to be
fundamental procedural rights and action in respect of these rights should be
given priority at this stage. 3. The Commission is invited to submit proposals
regarding the measures set out in the Roadmap, and to consider presenting the
Green Paper mentioned under point F. 4. The Council will examine all proposals
presented in the context of the Roadmap and pledges to deal with them as
matters of priority. 5. The Council will act in full cooperation with
the European Parliament, in accordance with the applicable rules, and will duly
collaborate with the Council of Europe. ROADMAP FOR STRENGTHENING PROCEDURAL RIGHTS OF
SUSPECTED OR ACCUSED PERSONS IN CRIMINAL PROCEEDINGS The
order of the rights indicated in this Roadmap is indicative. It is emphasised
that the explanations provided below merely serve to give an indication of the
proposed action, and do not aim to regulate the precise scope and content of
the measures concerned in advance. Measure
A: Translation and Interpretation Short
explanation: The suspected or
accused person must be able to understand what is happening and to make
him/herself understood. A suspected or accused person who does not speak or
understand the language that is used in the proceedings will need an
interpreter and translation of essential procedural documents. Particular
attention should also be paid to the needs of suspected or accused persons with
hearing impediments. Measure
B: Information on Rights and Information about the Charges Short
explanation: A person that is
suspected or accused of a crime should get information on his/her basic rights
orally or, where appropriate, in writing, e.g. by way of a Letter of Rights.
Furthermore, that person should also receive information promptly about the
nature and cause of the accusation against him or her. A person who has been
charged should be entitled, at the appropriate time, to the information
necessary for the preparation of his or her defence, it being understood that
this should not prejudice the due course of the criminal proceedings. Measure
C: Legal Advice and Legal Aid Short
explanation: The right to legal
advice (through a legal counsel) for the suspected or accused person in
criminal proceedings at the earliest appropriate stage of such proceedings is
fundamental in order to safeguard the fairness of the proceedings; the right to
legal aid should ensure effective access to the aforementioned right to legal
advice. Measure
D: Communication with Relatives, Employers and Consular Authorities Short
explanation: A suspected or
accused person who is deprived of his or her liberty shall be promptly informed
of the right to have at least one person, such as a relative or employer,
informed of the deprivation of liberty, it being understood that this should
not prejudice the due course of the criminal proceedings. In addition, a
suspected or accused person who is deprived of his or her liberty in a State
other than his or her own shall be informed of the right to have the competent
consular authorities informed of the deprivation of liberty. Measure
E: Special Safeguards for Suspected or Accused Persons who are Vulnerable Short
explanation: In order to
safeguard the fairness of the proceedings, it is important that special
attention is shown to suspected or accused persons who cannot understand or
follow the content or the meaning of the proceedings, owing, for example, to
their age, mental or physical condition. Measure
F: A Green Paper on Pre-Trial Detention Short
explanation: The time that a
person can spend in detention before being tried in court and during the court
proceedings varies considerably between the Member States. Excessively long
periods of pre-trial detention are detrimental for the individual, can
prejudice the judicial cooperation between the Member States and do not
represent the values for which the European Union stands. Appropriate measures
in this context should be examined in a Green Paper. EN 4.12.2009 Official
Journal of the European Union C 295/3. ANNEX II
Text of the Directive on Access to a Lawyer (Text
of compromise package reached by the negotiating parties on 28 May 2013) DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL on
the right of access to a lawyer in criminal proceedings and European arrest
warrant proceedings, and on the rights to have a third party informed upon
deprivation of liberty and to communicate, while deprived of liberty, with
third persons and with consular authorities THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 82(2)(b)
thereof, Having regard to the proposal from the European Commission, After transmission of the draft legislative act to the national
Parliaments, Having regard to the opinion of the European Economic and Social
Committee, After consulting the Committee of the Regions, Acting in accordance with the ordinary legislative procedure, Whereas: (1) Article 47 of the Charter of Fundamental Rights of the European
Union (hereinafter referred to as "the Charter"), Article 6 of the
European Convention for the Protection of Human Rights and Fundamental Freedoms
(hereinafter referred to as "the ECHR") and Article 14 of the
International Covenant on Civil and Political Rights (hereinafter referred to
as "the ICCPR") enshrine the right to a fair trial. Article 48 of the
Charter guarantees respect for the rights of the defence. (2) The Union has set itself the objective of maintaining and
developing an area of freedom, security and justice. According to the
conclusions of the European Council in Tampere of 15 and 16 October 1999, and
in particular point 33 thereof, the principle of mutual recognition of
judgments and other decisions of judicial authorities should become the
cornerstone of judicial cooperation in both civil and criminal matters within
the Union, because enhanced mutual recognition and the necessary approximation
of legislation would facilitate cooperation between authorities and the
judicial protection of individual rights. (3) According to Article 82 of the Treaty on the Functioning
of the European Union ('TFEU'), judicial cooperation in criminal matters in the
Union shall be based on the principle of mutual recognition of judgments and
judicial decisions. (4) The implementation of the principle of mutual recognition
of decisions in criminal matters presupposes that Member States trust in each
other's criminal justice systems. The extent of the mutual recognition is very
much dependent on a number of parameters, which include mechanisms for
safeguarding the rights of suspects or accused persons and common minimum
standards necessary to facilitate the application of the principle of mutual
recognition. (5) Mutual recognition can only operate effectively where
there is mutual trust, which requires detailed rules on the protection of
procedural rights and guarantees stemming from the Charter, the ECHR and the
ICCPR. Common minimum rules should increase confidence in the criminal justice
systems of all Member States, which in turn should lead to more efficient
judicial cooperation in a climate of mutual trust and to the promotion of a
fundamental rights culture in the Union. They should also remove obstacles to
the free movement of citizens throughout the territory of the Member States.
Such common minimum rules should apply to the right of access to a lawyer and
the right to have a third party informed upon deprivation of liberty. (6) Although the Member States are parties to the ECHR and the
ICCPR, experience has shown that this in itself does not always provide a
sufficient degree of trust in the criminal justice systems of other Member
States. (7) Strengthening mutual trust requires detailed rules on the
protection of the procedural rights and guarantees arising from the Charter and
from the ECHR. It also requires, by means of this Directive and other measures,
further development within the Union of the minimum standards set out in the
ECHR and the Charter. (8) Article 82(2) TFEU provides for the establishment of
minimum rules applicable in the Member States so as to facilitate mutual
recognition of judgments and judicial decisions and police and judicial
cooperation in criminal matters having a cross-border dimension. That Article
refers in point (b) to "the rights of individuals in criminal
procedure" as one of the areas in which minimum rules may be established.
(9) Common minimum rules should lead to increased confidence
in the criminal justice systems of all Member States, which in turn should lead
to more efficient judicial cooperation in a climate of mutual trust. Such
common minimum rules should be established in the field of access to a lawyer
in criminal proceedings. (10) On 30 November 2009, the Council adopted the Roadmap for
strengthening the procedural rights of suspected and accused persons in
criminal proceedings (‘the Roadmap’) [111].
Taking a step-by-step approach, the Roadmap calls for the adoption of measures
regarding the right to obtain translation and interpretation, the right to
receive information on rights and information about the charges, the right to
receive legal advice and legal aid, the right to communicate with relatives,
employers and consular authorities, and establishing special safeguards for
suspected or accused persons who are vulnerable. The Roadmap emphasises that
the order of the rights is indicative, implying that it may be changed
according to priorities. It is designed to operate as a whole; only when all
its components are implemented will its benefits be felt in full. (11) On 10 December 2009, the European Council welcomed the
Roadmap and made it part of the Stockholm programme - An
open and secure Europe serving and protecting citizens (point
2.4). The European Council underlined the non-exhaustive character of the
Roadmap, by inviting the Commission to examine further elements of minimum
procedural rights for suspected and accused persons, and to assess whether
other issues, for instance the presumption of innocence, need to be addressed,
in order to promote better cooperation in that area. (12) Two measures included in the Roadmap have been adopted so
far: Directive 2010/64/EU of the European Parliament and of the Council of 20
October 2010 on the right to interpretation and to translation in criminal proceedings
[112]
and Directive 2012/13/EU of the European Parliament and of the Council of 22
May 2012 on the right to information in criminal proceedings [113]. (13) This Directive sets out minimum rules on the right of
access to a lawyer and on the right to have a third party informed upon
deprivation of liberty in criminal proceedings and in proceedings for the
execution of an European Arrest Warrant. In doing so, it promotes the
application of the Charter, in particular Articles 4, 6, 7, 47 and 48, by building
upon Articles 3, 5, 6 and 8 of the ECHR, as interpreted by the European Court
of Human Rights, which in its case-law sets standards on an ongoing basis on
the right of access to a lawyer. This case-law provides
inter alia that the fairness of
proceedings requires that a suspect or accused person be able to obtain the
whole range of services specifically associated with legal assistance. In this
regard, the lawyer should be able to secure without restriction the fundamental
aspects of that person’s defence. (14) Without prejudice to the
obligations of Member States under the ECHR to ensure fair trial rights, proceedings
in relation to minor offending which takes place within a prison and
proceedings in relation to offences committed in a military context which are
dealt with by a commanding officer should not be considered to be criminal
proceedings for the purposes of this Directive. (15) This Directive should
be implemented taking into account the provisions of the Directive 2012/13/EU
on the right to information in criminal proceedings that provide that suspects or accused persons are provided promptly with information
concerning the right of access to a lawyer, and that suspects or accused
persons who are arrested or detained are provided promptly with a written
Letter of Rights, which should contain information about the right of access to
a lawyer. (16) The term lawyer in this Directive refers to any
person who, in accordance with national law, is qualified and entitled,
including by accreditation by an authorised body, to provide legal advice and
assistance to suspects or accused persons. (17) In some Member States an authority other than a court
having jurisdiction in criminal matters may be competent for imposing sanctions
other than deprivation of liberty in relation to relatively minor offences.
That may be the case, for example, in relation to traffic offences which are
committed on a large scale and which might be established following a traffic
control. In such situations, it would be disproportionate
to require that the competent authority should ensure all the rights granted
under this Directive. Where the law of a Member State provides for the
imposition of a sanction regarding minor offences by such an authority and
there is a right of appeal or the possibility for the case to be otherwise
referred to a court having jurisdiction in criminal matters, this Directive
should therefore apply only to the proceedings before that court following such
an appeal or referral. (18) In some Member States certain minor offences, in particular
minor traffic offences, minor offences in relation to
general municipal regulations and minor public order
offences, are considered to be criminal offences. It would be
disproportionate to require that the competent authorities should ensure all
the rights granted under this Directive in respect of such minor offences.
Where the law of a Member State provides in respect of minor offences
that deprivation of liberty cannot be imposed as a sanction, this
Directive should therefore apply only to the proceedings before a court having
jurisdiction in criminal matters. (19) The scope of application of this Directive in respect of certain
minor offences should not affect the obligations of Member States under the
ECHR to ensure fair trial rights, including obtaining legal
assistance from a lawyer. (20) Member States should ensure that
suspects or accused persons have the right of access to a lawyer without undue
delay. In any event, suspects or accused persons should have access to a lawyer
before the person concerned is questioned by the police or other law
enforcement authorities and during any such questioning, upon the carrying out
by investigative or other competent authorities of an investigative or other
evidence-gathering act and without undue delay from the deprivation of liberty.
In any case, suspects or accused persons should be granted access to a lawyer
during criminal proceedings before a court, if they have not waived that right.
(21) For the purposes of this Directive, questioning does not
include preliminary questioning by the police or other law enforcement
authorities whose purpose is any or all of the following: the identification of
the person concerned; the verification of the possession of weapons or other
similar safety issues; or the determination of whether an investigation
should be started, for example in the course of a road-side check, or during
regular random checks when a suspect or accused person has not yet been
identified. (22) When a person other than a suspect of accused person, such
as a witness, becomes a suspect or accused person, he should be protected
against self incrimination and has the right to remain silent, as
confirmed in the case law of the European Court of Human Rights. It is
therefore appropriate to make express reference to the practical situation
where a person, other than a suspect or accused person, during questioning by
the police or by another law enforcement authority in the context of criminal
proceedings becomes suspected or accused of having committed a criminal
offence. When, in the course of such questioning, a person other than a
suspect or accused person becomes a suspect or accused person, any questioning
should be suspended immediately; however, questioning may be continued if the
person has been made aware that he is a suspect or accused person and he is
able to fully exercise the rights provided for under this Directive. (23) Suspects or accused persons should
have the right to meet in private with the lawyer representing them, including
prior to questioning by the police or other law enforcement or judicial
authorities. Member States may make practical arrangements concerning the
duration and frequency of meetings between a suspect or accused person and his
lawyer, taking into account the circumstances of every proceeding, notably the
complexity of the case and the procedural steps applicable. Member States may
also make practical arrangements to ensure safety and security, in particular
of the lawyer and of the suspect or accused person, in the place where the
meeting between the lawyer and the suspect or accused person is conducted. All
these arrangements should not prejudice the effective exercise and essence of
the right of the suspect or accused person to meet with his lawyer. (24) Suspects or accused persons should have the right to
communicate with the lawyer representing them. Such communication can take
place at any stage, including before any exercise of the right to meet with the
lawyer. Member States may make practical arrangements concerning the duration,
frequency and means of communication between the suspect or accused person and
his lawyer, including concerning the use of videoconferencing and other
communication technology in order to allow such communications to take place,
provided such arrangements do not prejudice the effective exercise and essence
of the right of the suspect or accused person to communicate with his lawyer. (25) In respect of certain minor offences, this Directive should
not prevent Member States from organising the right of the suspect or accused
person to legal assistance by telephone. However, limiting the right in this
way should be restricted to cases where the person will not be questioned by
the police or by other law enforcement authorities. (26) Member States should ensure that suspects or accused
persons have the right for their lawyer to be present and participate
effectively when they are questioned by the investigating authorities, as well
as during court hearings. Such participation should be in accordance with
procedures in national law, which may regulate the participation of a lawyer
during questioning of the suspect or accused person by the investigating
authorities, as well as during court hearings, provided these rules do not
prejudice the effective exercise and essence of the right concerned. During
questioning by the investigating authorities of the suspect or accused person
or in a court hearing, the lawyer may inter alia, in accordance with such rules,
ask questions, request clarification and make statements, which should be
recorded in accordance with national law. (27) The suspect or accused person has the right for his lawyer
to attend at least the following investigative or evidence-gathering acts,
insofar as they are provided for in the national law concerned and insofar the
suspect or accused person is required or permitted to attend: identity parades,
at which the suspect or accused person figures among other persons in order to
be identified by a victim or witness; confrontations, where a suspect or
accused person is brought together with one or more witnesses or victims when
there is disagreement between them on important facts or issues; experimental
reconstructions of the scene of crime at which the suspect or accused person is
present and where the circumstances of a crime are reconstructed, in order to
better understand the manner and circumstances under which a crime was
committed and to be able to ask specific questions to the suspect or accused
person. Member States may make practical arrangements concerning the presence
of a lawyer during investigative or evidence-gathering acts, provided such
arrangements do not prejudice the effective exercise and essence of the rights
concerned. Where the lawyer is present during an investigative or
evidence-gathering act, this should be recorded in accordance with the
recording procedure of the law of the Member State concerned. (28) Member States should be encouraged to make general
information available, for instance on a website or by means of a leaflet that
is available at police stations, to facilitate suspects or accused persons in
obtaining a lawyer. However, Member States would not need to actively
pursue that a suspect or accused person who is not deprived of his liberty
will be assisted by a lawyer if the person concerned has not himself
arranged to be assisted by a lawyer. Such suspect or accused person concerned
should be able to freely contact, consult or be assisted by that lawyer. (29) In cases where a suspect or accused person is deprived of
liberty, Member States should make the necessary arrangements to ensure
that the person concerned is in a position to effectively exercise his right of
access to lawyer, including by arranging for the assistance of a lawyer when
the person concerned does not have one, unless he has waived this right. The
arrangements could imply, inter alia, that the competent authorities arrange
for the assistance of a lawyer on the basis of a list of available lawyers from
which the suspect or accused person could choose. The arrangements could
include those on legal aid if applicable. (30) Pre-trial detention and detention conditions should fully
respect the standards set out by the ECHR, by the Charter, and by the case law
of the European Court of Human Rights and of the European Court of Justice.
When providing assistance under this Directive to a suspect or accused person
who is in detention, the lawyer concerned should be able to raise a question to
the competent authorities regarding the conditions under which that person is
detained. (31) In cases of geographical remoteness of the suspect or
accused person, e.g. in overseas territories or where the Member State
undertakes or participates in military operations outside that Member State,
Member States are permitted to temporarily derogate from the right of the
suspect or accused person to have access to a lawyer without undue delay after
deprivation of liberty. During a temporary derogation on this ground, the
competent authorities are not allowed to question the person concerned or to
carry out any of the investigative or evidence-gathering acts foreseen in this
Directive. Where immediate access to a lawyer is not possible because of the
geographical remoteness of the suspect or accused person, Member States should
arrange for communication via telephone or video conference unless this is
strictly impossible. (32) Member States should be permitted to temporarily derogate
from the right of access to a lawyer in the pre-trial phase when there is a
need, in cases of urgency, to avert serious adverse consequences for the life,
liberty or physical integrity of a person. During a temporary derogation on
this ground, the competent authorities may question a suspect or accused person
without the lawyer being present, it being understood that the suspect or
accused person has been informed of his right to remain silent and can exercise
that right, and that questioning does not prejudice the rights of the defence,
including the privilege against self-incrimination. Questioning may be carried
out for the sole purpose and to the extent necessary to obtain information that
is essential to avert serious adverse consequences for the life, liberty or
physical integrity of a person. Abuse of this derogation would in principle
irretrievably prejudice the rights of the defence. (33) Member States should also be permitted to temporarily
derogate from the right of access to a lawyer in the pre-trial phase where
immediate action by the investigating authorities is imperative to prevent a
substantial jeopardy to criminal proceedings, in particular to prevent
destruction or alteration of essential evidence, or to prevent interference
with witnesses. During a temporary derogation on this ground, the competent
authorities may question a suspect or accused person without the lawyer being
present, it being understood that the suspect or accused person has been
informed of his right to remain silent and can exercise that right, and that questioning
does not prejudice the rights of the defence, including the privilege against
self-incrimination. Questioning may be carried out for the sole purpose and to
the extent necessary to obtain information that is essential to prevent a
substantial jeopardy to criminal proceedings. Abuse of this derogation would in
principle irretrievably prejudice the rights of the defence. (34) Confidentiality of communication between a suspect or
accused person and his lawyer is key to ensuring the effective exercise of the
rights of the defence and is an essential part of the right to a fair trial.
Member States should therefore respect the confidentiality of meetings and
other forms of communication between the lawyer and the suspect or accused
person in the exercise of the right of access to a lawyer provided for in this
Directive, without derogation. This Directive is without prejudice to
procedures that address the situation when there are objective and factual
circumstances whereby the lawyer is suspected of being involved with the
suspect or accused person in a criminal offence. Criminal activity of the
lawyer should not be considered to be legitimate assistance to suspects or
accused persons in the framework of this Directive. The obligation to respect
confidentiality not only implies that Member States should refrain from
interfering with or accessing such communication but also that, where the
suspect or accused person is deprived of liberty or otherwise finds himself in
a place under the control of the State, Member States should ensure that
arrangements for communication uphold and protect confidentiality. This is
without prejudice to mechanisms in place in detention facilities in order to
avoid illicit enclosures being sent to detainees, such as screening correspondence,
as long as such mechanisms do not allow the competent authorities to read the
communication between the suspect or accused person and his lawyer. This
Directive is also without prejudice to procedures in national law according to
which forwarding correspondence may be rejected if the sender does not agree to
the correspondence first being submitted to a competent court. (35) This Directive should be without prejudice to a breach of
confidentiality which is incidental to a lawful surveillance operation by
competent authorities. This Directive should also be without prejudice to the
work carried out, for example by national intelligence services, to safeguard
national security in accordance with Article 4(2) of the Treaty on European
Union or that falls within the scope of Article 72 of the Treaty on the
Functioning of the European Union, according to which Title V on an area
of Freedom, Security and Justice shall not affect the exercise of the
responsibilities incumbent upon Member States with regard to the maintenance of
law and order and the safeguarding of internal security. (36) Suspects or accused persons deprived of their liberty
should have the right to have at least one person of their choice, such as a
family member or employer, informed of the deprivation of liberty without undue
delay, it being understood that this should not prejudice the due course of the
criminal proceedings against the person concerned, nor any other criminal
proceedings. Member States may make practical arrangements in relation to the
application of this right, provided such arrangements do not prejudice the
effective exercise and essence of the right. In limited, exceptional
circumstances, however, it should be possible to temporarily derogate from this
right when this is justified, in the light of the particular circumstances of
the case, by a compelling reason as specified in this Directive. When the
competent authorities envisage making such a temporary derogation in respect of
a specific third person, they should firstly consider whether another third
person, nominated by the suspect or accused person, could be informed of his
deprivation of liberty. (37) Suspects or accused persons, while deprived of liberty,
should have the right to communicate without undue delay with at least one
third person, such as a relative, nominated by them. Member States may limit or
defer the exercise of this right in view of imperative requirements or
proportionate operational requirements. These requirements can, for example, be
a need to avert serious adverse consequences for the life, liberty or physical
integrity of a person, a need to prevent prejudice to criminal proceedings, a
need to prevent a criminal offence, a need to await a court hearing, and a need
to protect victims of crime. When the competent authorities envisage limiting
or deferring the exercise of the right to communicate in respect of a specific
third person, they should firstly consider whether the suspect or accused
person could communicate with another third person nominated by him. Member
States may make practical arrangements concerning the timing, means, duration
and frequency of communication with third persons, taking account of the need
to maintain good order, safety and security in the place where the person is
being deprived of liberty. (38) The rights of suspects and accused persons who are deprived
of their liberty to consular assistance is enshrined in Article 36 of the 1963
Vienna Convention on Consular Relations where it is a right conferred on States
to have access to their nationals. This Directive confers a corresponding right
on suspects or accused persons who are deprived of their liberty, subject to
their wishes. Consular protection may be exercised by diplomatic authorities
when they act as consular authorities. (39) Member States should clearly set out in their national law
the grounds and criteria for any temporary derogations from rights granted
under this Directive, and they should make a restricted use of these
derogations. Any temporary derogations allowed under this Directive should be
proportional, strictly limited in time, not be based exclusively on the type or
the seriousness of the alleged offence, and not prejudice the overall fairness
of the proceedings. Member States should clearly set out in their national law
the grounds and criteria for any temporary derogations from rights granted
under this Directive, and they should make a restricted use of these
derogations. Any temporary derogations allowed under this Directive should be proportional,
strictly limited in time, not be based exclusively on the type or the
seriousness of the alleged offence, and not prejudice the overall fairness of
the proceedings. Member States should ensure that when a temporary derogation
has been authorised under this Directive by a judicial authority which is not a
judge or a court, the decision on authorising the temporary derogation can be
assessed by a court, at least during the trial stage. (40) Without prejudice to national law requiring the mandatory
presence or assistance of a lawyer, the suspect or accused person should be
allowed to waive a right granted under this Directive, as long as he has been
given, orally or in writing, clear and sufficient information in simple and
understandable language about the content of the right concerned and the
possible consequences of waiving it. When providing the information, the
specific conditions of the person concerned should be taken into account,
including the age of the person, and his mental and physical condition. (41) A waiver and the circumstances in which it was given should
be noted, using the recording procedure in accordance with the law of the
Member State concerned. This should not lead to any additional obligation for
Member States to introduce new mechanisms or to any additional
administrative burden. (42) It should be possible for a suspect or accused person to
revoke a waiver at any point during the criminal proceedings, and the person
concerned should be informed about this possibility. A revocation of a waiver
should come into effect from the point in time when the revocation was made.
Hence, it should not be necessary to proceed again with questioning and any
procedural acts that have been carried out during the period when the right concerned
was waived. (43) The person subject to a European Arrest Warrant should have
the right of access to a lawyer in the executing Member State in order to allow
him to exercise his rights effectively under the Council Framework Decision
2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the surrender
procedures between Member States. [114]
When the lawyer participates in a hearing of the requested person by an
executing judicial authority, he may inter alia, in accordance with procedures
provided for under national law, ask questions, request clarification and make
statements. The fact of participation should be recorded in accordance with
national law. (44) Requested persons should have the right to meet in private
with the lawyer representing them in the executing State. Member States may
make practical arrangements concerning the duration and frequency of such
meetings, taking into account the particular circumstances of the case. Member
States may also make practical arrangements to ensure safety and security, in
particular of the lawyer and of the requested person, in the place where the
meeting between the lawyer and the requested person is conducted. All these
arrangements should not prejudice the effective exercise and essence of the right
of the requested person to meet with his lawyer. (45) Requested persons should have the
right to communicate with the lawyer representing them in the executing Member
State. Such communication can take place at any stage, including before any
exercise of the right to meet with the lawyer. Member States may make practical
arrangements concerning the duration, frequency and means of communication
between the requested person and his lawyer, including concerning the use of
videoconferencing and other communication technology in order to allow such
communications to take place, provided such arrangements do not prejudice the
effective exercise and essence of the right of the requested person to
communicate with his lawyer. (46) Executing Member States should make
the necessary arrangements to ensure that a requested person is in a position
to effectively exercise his right of access to lawyer in the executing Member
State, including by arranging for the assistance of a lawyer when the person
concerned does not have one, unless he has waived this right. The arrangements,
including those on legal aid if applicable, should be governed by national law.
They could imply, inter alia, that the competent authorities arrange for the
assistance of a lawyer on the basis of a list of available lawyers from which
the requested person could choose. (47) Without undue delay after being informed that the requested
person wishes to appoint a lawyer in the issuing Member State, the competent
authority of that Member State shall provide information to the requested
person to facilitate him in appointing a lawyer there. Such information could,
for example, include a current list of lawyers, or the name of a lawyer on duty
in the issuing State, that can provide information and advice in European
Arrest Warrant cases. Member States could request that the appropriate bar
association draw up such a list. (48) The surrender procedure is crucial for cooperation in
criminal matters between the Member States. Observance of the time limits
contained in Council Framework Decision 2002/584/JHA is essential for such
cooperation. Therefore, while requested persons should be able to fully
exercise their rights under this Directive in proceedings for the execution of
a European Arrest Warrant, those time limits should be respected. (49) In the absence to-date of a legislative act of the Union on
legal aid, Member States should apply their national law in relation to legal
aid, which should be in line with the Charter, the ECHR and the case-law of the
European Court of Human Rights. (50) In accordance with the principle of effectiveness of Union
law, Member States should put in place adequate and effective remedies to
protect the rights conferred upon individuals by this Directive. (51) Member States should ensure that in the assessment of
statements made by a suspect or accused person or of evidence obtained in
breach of his right to a lawyer or in cases where a derogation to this right
was authorised in accordance with this Directive, the rights of the defence and
the fairness of the proceedings should be respected; in this context, regard
should be had at the case-law of the European Court of Human Rights, which has
established that the rights of the defence will in principle be irretrievably prejudiced
when incriminating statements made during police interrogation without access
to a lawyer are used for a conviction. This should be without prejudice to the
use of statements for other purposes permitted under national law, such as the
need to execute urgent investigative acts to avoid the perpetration of other
offences or serious adverse consequences for any person or related to an urgent
need to prevent a substantial jeopardy to criminal proceedings where access to
a lawyer or delaying the investigation would irretrievably prejudice the
on-going investigations regarding a serious crime. Further, this should be
without prejudice to national rules or systems regarding admissibility of
evidence, and should not prevent Member States from maintaining a system
whereby all existing evidence can be adduced before a court or a judge, without
there being any separate or prior assessment as to admissibility of such
evidence. (52) The duty of care towards suspected or accused persons who
are in a potentially weak position underpins a fair administration of justice.
The prosecution, law enforcement and judicial authorities should therefore
facilitate that such persons are able to exercise effectively the rights
provided for in this Directive, for example by taking into account any
potential vulnerability that affects their ability to exercise the right of
access to a lawyer and to have a third party informed upon deprivation of
liberty, and by taking appropriate steps to ensure those rights are guaranteed.
(53) This Directive upholds the fundamental rights and
principles recognised by the Charter, including the prohibition of torture and
inhuman and degrading treatment, the right to liberty and security, respect for
private and family life, the right to the integrity of the person, the rights
of the child, integration of persons with disabilities, the right to an
effective remedy and to a fair trial, the presumption of innocence and the
right of defence. This Directive must be implemented according to these rights
and principles. (54) Member States should ensure that the provisions of this
Directive, where they correspond to rights guaranteed by the ECHR, are
implemented consistently with those of the ECHR and as developed by case law of
the European Court of Human Rights. (55) This Directive sets minimum rules. Member States may extend
the rights set out in this Directive in order to afford a higher level of
protection. Such higher level of protection may not constitute an
obstacle to mutual recognition of judicial decisions that these minimum rules
are designed to facilitate. The level of protection should never go below the
standards provided by the Charter and by the ECHR, as interpreted in the case
law of the European Court of Justice and the European Court of Human Rights. (56) This Directive promotes the rights of children and takes
into account the Guidelines of the Council of Europe on child friendly justice,
in particular its provisions on information and advice to be given to children.
The Directive ensures that suspects and accused persons, including children,
should be provided with adequate information to understand the consequences of
waiving a right under this Directive and that the waiver should be given
voluntarily and unequivocally. The holder of the parental responsibility of a
suspect or accused child should be notified as soon as possible of his
deprivation of liberty and the reasons pertaining thereto. If providing such
information to the holder of the parental responsibility of the child is contrary
to the best interests of the child, another suitable adult such as a relative
should be informed instead. This should be without prejudice to provisions of
national law which require that any specified authorities, institutions or
individuals, in particular those which are responsible for the protection or
welfare of children, should be informed of the deprivation of liberty of a
child. Member States should refrain from limiting or deferring the exercise of
the right to communicate with a third party in respect of suspected or accused
children who are deprived of liberty, save in the most exceptional
circumstances. Where a deferral is applied the child should nonetheless not be
held incommunicado, but be permitted to communicate with, for example, an institution
or individual responsible for the protection or welfare of children. (57) In accordance with the Joint Political Declaration of
Member States and the Commission on explanatory documents of 28 September 2011,
Member States have undertaken to accompany, in justified cases, the
notification of their transposition measures with one or more documents
explaining the relationship between the components of a directive and the
corresponding parts of national transposition instruments. With regard to this
Directive, the legislator considers the transmission of such documents to be
justified. (58) Since the objectives of this Directive, namely setting
common minimum rules for the right of access to a lawyer and the right to have
a third person informed of the deprivation of liberty, cannot be sufficiently
achieved by the Member States, and can, by reason of the scale of the measure,
be better achieved at Union level, the Union may adopt measures in accordance
with the principle of subsidiarity as set out in Article 5 of the Treaty on
European Union. In accordance with the principle of proportionality, as set out
in that Article, this Directive does not go beyond what is necessary in order
to achieve these objectives. (59) Without prejudice to Article 4 of the Protocol on the
position of the United Kingdom and Ireland in respect of the Area of Freedom,
Security and Justice, annexed to the Treaty on European Union and to the Treaty
on the Functioning of the European Union, the United Kingdom and Ireland will not
participate in the adoption of this Directive and will not be bound by or be
subject to its application. (60) In accordance with Articles 1 and 2 of the Protocol on the
position of Denmark, annexed to the Treaty on European Union and to the Treaty
on the Functioning of the European Union, Denmark will not participate in the
adoption of this Directive, and is therefore not bound by it or subject to its
application, HAVE ADOPTED THIS DIRECTIVE: CHAPTER 1
Objective, Scope Article 1
Objective This Directive lays down
minimum rules concerning the rights of suspects and accused persons in criminal
proceedings and of persons subject to proceedings pursuant to Council Framework
Decision 2002/584/JHA [115]
("European arrest warrant proceedings") to have access to a
lawyer and to have a third party informed of the deprivation of liberty. Article 2
Scope 1. This Directive applies to
suspects or accused persons in criminal proceedings from the time a person has
been made aware by the competent authorities of a Member State, by official
notification or otherwise, that he is suspected or accused of having committed
a criminal offence, and irrespective of whether he is deprived of liberty or
not. It applies until the conclusion of the proceedings, which is understood to
mean the final determination of the question whether the suspected or accused
person has committed the offence, including, where applicable, sentencing and
the resolution of any appeal. 2. This
Directive applies to persons subject to European arrest warrant proceedings
from the time they are arrested in the executing Member State in accordance
with Article 10. 3. This
Directive also applies, under the same conditions as provided for in paragraph
1, to persons other than suspects or accused persons who in the course of
questioning by the police or by another law enforcement authority become
suspects or accused persons. 4. Without prejudice to the right to a fair trial, in
respect of minor offences (a) where the law of a Member State provides for the
imposition of a sanction by an authority other than a court having jurisdiction
in criminal matters, and the imposition of such a sanction may be appealed or
referred to such a court; or (b) where deprivation of liberty cannot be imposed as a sanction,
this Directive
shall only apply to the proceedings before a court having jurisdiction in
criminal matters. However, the
Directive shall in any case fully apply when the suspect or accused person is
deprived of liberty, irrespective of the stage of the criminal proceedings.
CHAPTER
2
Right of access to a lawyer Article 3
The right of access to a lawyer in criminal
proceedings 1. Member States shall ensure that suspects and accused
persons have the right of access to a lawyer in such a time and manner so as to
allow the person concerned to exercise his rights of defence practically and
effectively. 2. The suspect or accused person shall have access to a
lawyer without undue delay. In any event, the suspect
or accused person shall have access to a lawyer as from the following moments
in time, whichever is the earliest: (a) before he is questioned by the police or other law
enforcement or judicial authorities; (b) upon the carrying out by investigative or other competent
authorities of an investigative or other evidence-gathering act in accordance
with paragaph 3(c); (c) without undue delay from the deprivation of liberty; (d) in due time before the suspect or accused person, who has
been summoned to appear before a court having jurisdiction in criminal matters,
appears before that court. 3. The right of access to a lawyer shall entail the following:
(a) Member States shall ensure that a suspect or accused person
has the right to meet in private and communicate with the lawyer representing
him, including prior to questioning by the police or other law enforcement or
judicial authorities; (b) Member States shall ensure that the
suspect or accused person has the right for his lawyer to be present and
participate effectively when he is questioned. Such participation shall be in
accordance with procedures in national law, provided these procedures do not
prejudice the effective exercise and essence of the right concerned. When a
lawyer participates during questioning this shall be recorded in accordance
with national law; (c) Member States shall ensure that the suspect or accused
person shall as a minimum have the right for his lawyer to attend the following
investigative or evidence-gathering acts, if these acts are provided for in the
national law concerned and if the suspect or accused person is required or
permitted to attend the act concerned: i) identity parades; ii) confrontations; iii) experimental
reconstructions of the scene of crime. 4. Member States shall endeavour to
make general information available to facilitate suspects or accused persons in
obtaining a lawyer. Notwithstanding provisions of national law
concerning the mandatory presence of a lawyer, Member States shall make the
necessary arrangements to ensure that suspects or accused persons who are
deprived of liberty shall be in a position to effectively exercise their right
of access to a lawyer, unless they have waived this right in accordance with
Article 9. 5. In exceptional circumstances and in the pre-trial stage
only, Member States may temporarily derogate from the application of paragraph
2(c) when the geographical remoteness of a suspect or accused person makes it
impossible to ensure the right of access to a lawyer without undue delay after
deprivation of liberty. 6. In exceptional circumstances and in the pre-trial stage
only, Member States may temporarily derogate from the application of the rights
provided for in paragraph 3 when and to the extent this is justified, in the
light of the particular circumstances of the case, by one or more of the
following compelling reasons: (a) an
urgent need to avert serious adverse consequences for the life, liberty or
physical integrity of a person; (b) immediate
action by the investigating authorities is imperative to prevent a substantial
jeopardy to criminal proceedings. Article 4
Confidentiality Member States
shall respect the confidentiality of communication between a suspect or accused
person and his lawyer in the exercise of the right of
access to a lawyer provided for under this Directive. This shall include
meetings, correspondence, telephone conversations and other forms of
communication permitted under national law. CHAPTER 3
Informing a third person of deprivation of liberty and communication with third persons and
consular authorities Article 5
The right to have a third person informed of the
deprivation of liberty 1. Member States shall ensure that suspects or accused persons
who are deprived of their liberty have the right to have at least one person,
such as a relative or employer, nominated by them, informed of the deprivation
of liberty, without undue delay, if they so wish. 2. If the suspect or accused person is a child, Member States
shall ensure that the holder of the parental responsibility of the child is
informed as soon as possible of the deprivation of liberty and of the reasons
pertaining thereto, unless it would be contrary to the best interests of the
child, in which case another appropriate adult shall be informed. For the
purposes of this paragraph, a person below the age of 18 years shall be
considered to be a child. 3. Member States may temporarily derogate from the application
of the rights set out in paragraphs 1 and 2 when this is justified, in the
light of the particular circumstances of the case, by one of the following
compelling reasons: (a) an urgent need to avert serious adverse consequences for the
life, liberty or physical integrity of a person ; (b) an urgent need to prevent a
situation where there could be a substantial jeopardy to criminal
proceedings. 4. When Member States temporarily
derogate from the application of the right set out in paragraph 2, they shall
ensure that an authority responsible for the protection or welfare of children
is informed without undue delay of the deprivation of liberty of the child. Article 6 The right to communicate, while deprived of liberty, with third
persons 1. Member States shall ensure that suspects or accused persons who are deprived of liberty have the right
to communicate without undue delay with at least one third person, such as a
relative, nominated by them. 2. Member States may limit or defer the exercise of this right
in view of imperative requirements or proportionate operational requirements.
Article 7
The right to communicate
with consular authorities 1. Member States
shall ensure that suspects or accused persons who are deprived of their liberty and who are non-nationals
have the right to have consular authorities of their State of nationality
informed of the deprivation of liberty without undue delay and to communicate
with those authorities, if the suspects or accused persons so wish. However,
when suspects or accused persons have two or more nationalities, they may
choose which consular authorities, if any, are to be informed of the
deprivation of liberty and with whom they wish to communicate. 2. Suspects or
accused persons also have the right to be visited by their consular
authorities, the right to converse and correspond with them and the right to
have legal representation arranged for by their consular authorities, subject
to the agreement of these authorities and the wishes of the suspects or accused
persons concerned. 3. The exercise
of the rights in this Article may be regulated in national law or procedures,
provided such law and procedures shall enable full effect to be given to the
purposes for which these rights are intended. CHAPTER 4
Derogations and waiver Article 8
General conditions
for applying temporary derogations 1. Any temporary
derogation under Articles 3(5), 3(6) and 5(3), (a) shall be
proportionate and not go beyond what is necessary; (b) shall be
strictly limited in time; (c) shall not be based
exclusively on the type or the seriousness of the alleged offence; and (d) shall not prejudice
the overall fairness of the proceedings. 2. Temporary
derogations under Article 3(5) and 3(6) may only be authorised by a duly
reasoned decision taken on a case-by-case basis, either by a judicial
authority, or by another competent authority on condition that the decision can
be submitted to judicial review. The duly reasoned
decision shall be recorded in accordance with the law of the Member State
concerned. 3. Temporary derogations under Article
5(3) may only be authorised on a case-by-case basis, either by a judicial
authority, or by another competent authority on condition that the decision can
be submitted to judicial review. Article 9
Waiver 1. Without prejudice to national law requiring the
mandatory presence or assistance of a lawyer, Member States shall ensure that,
in relation to any waiver of a right referred to in Articles 3 and 10 of this
Directive: (a) the suspect or accused person has been provided, orally or
in writing, with clear and sufficient information in simple and understandable
language about the content of the right concerned and the possible consequences
of waiving it; and (b) the waiver is given voluntarily and unequivocally. 2. The waiver, which can be made in writing or orally,
shall be noted, as well as the circumstances under which the waiver was given, using the recording procedure in accordance with the law of the
Member State concerned. 3. Member States shall ensure that a waiver can be subsequently
revoked at any point during the criminal proceedings and that the suspect or
accused person is informed about this possibility. A
revocation of a waiver shall come into effect from the point in time when the
revocation was made. CHAPTER 5
European Arrest Warrant proceedings Article 10
The right of access to a lawyer in European Arrest Warrant proceedings 1. Member
States shall ensure that a person requested for surrender in accordance with
Council Framework Decision 2002/584/JHA has the right of access to a lawyer in
the executing Member State upon arrest pursuant to the European Arrest Warrant. 2. With regard to the content of the right of access to a lawyer in the
executing Member State, the requested person shall have
the following rights in that Member State: –
(a) the right of access to a lawyer in
such a time and manner so as to allow him to exercise his rights effectively
and in any event without undue delay from deprivation of liberty; –
(b) the right to meet and communicate
with the lawyer representing him; –
(c) the right for his lawyer to be
present and, in accordance with procedures in national law, participate during
a hearing of the requested person by the executing judicial authority. When the
lawyer participates during the hearing this shall be recorded in accordance
with national law. 3. The
rights provided for in this Directive under Articles 4, 5, 6, 7, 9 and - when a temporary derogation under Article 5(3) is
applied - Article 8 shall apply, mutatis mutandis, to European arrest
warrant proceedings in the executing Member State. 4. The competent authority in the executing Member State
shall, without undue delay after deprivation of liberty, inform the requested
person that he has the right to appoint a lawyer in the issuing Member State. The
role of that lawyer in the issuing Member State is to assist the lawyer in the
executing Member State by providing him with information and advice with a view
to the effective exercise of the rights of the requested person under Council
Framework Decision 2002/584/JHA. 5. Where the requested person wishes to exercise this right
and does not already have a lawyer in the issuing Member State, the competent
authority in the executing Member State shall promptly inform the competent
authority in the issuing Member State. The competent authority of that Member
State shall, without undue delay, provide information to the requested person
to facilitate him in appointing a lawyer there. 6. The right of a requested person to
appoint a lawyer in the issuing Member State to assist his lawyer in the
executing Member State is without prejudice to the time limits set out in
Council Framework Decision 2002/584/JHA or the obligation on the executing
judicial authority to decide, within those time limits and the conditions
defined under that Framework Decision, whether the person is to be surrendered. CHAPTER 6
General and final provisions Article 11
Legal aid This Directive is without prejudice to national law in
relation to legal aid, which shall apply in accordance with the Charter and the
ECHR. Article 12
Remedies 1. Member States shall ensure that suspects or accused persons
in criminal proceedings as well as requested persons in European Arrest Warrant
proceedings have an effective remedy under national law in instances where
their rights under this Directive have been breached. 2. Without prejudice to national rules and systems on the
admissibility of evidence, Member States shall ensure that, in criminal
proceedings, in the assessment of statements made by a
suspect or accused person or of evidence obtained in breach of his right to a
lawyer or in cases where a derogation to this right was authorised in
accordance with Article 3(6), the rights of the defence and the fairness of the
proceedings are respected. Article 13
Vulnerable persons Member States shall ensure that in the
application of this Directive the particular needs of vulnerable suspects and
vulnerable accused persons are taken into account. Article 14 Non-regression clause Nothing in this Directive shall be
construed as limiting or derogating from any of the rights and procedural
safeguards that are ensured under the Charter, the ECHR, and other relevant
provisions of international law or the law of any Member States which provide a
higher level of protection. Article 15
Transposition 1. Member
States shall bring into force the laws, regulations and administrative
provisions necessary to comply with this Directive by [36 months after
publication of this Directive in the Official Journal]. They shall
immediately inform the Commission thereof. 2. When
Member States adopt these measures, they shall contain a reference to this
Directive or shall be accompanied by such a reference on the occasion of their
official publication. The methods of making such a reference shall be laid down
by the Member States. 3. Member
States shall communicate to the Commission the text of the measures of national
law which they adopt in the field covered by this Directive. Article 16 Report The Commission shall by [36 months after
the deadline for implementation of the Directive mentioned in Article 15(1)]
submit a report to the European Parliament and to the Council, assessing the
extent to which the Member States have taken the necessary measures in order to
comply with this Directive, including an evaluation of
the application of Article 3(6) in conjunction with Article
8(1) and (2), accompanied, if necessary, by
legislative proposals. Article 17
Entry into force This Directive shall enter into force on
the twentieth day following that of its publication in the Official Journal
of the European Union. Article 18
Addressees This Directive is addressed to the Member
States in accordance with the Treaties Done at Brussels, For the
European Parliament For the Council The President The
President
_______________________ ANNEX III
ECtHR digest case-law on legal aid in criminal proceedings The
right to legal aid at pre-trial stages Berlinski v Poland[116] The Court held that the right to legal aid
advice (as opposed to any type of legal assistance, as in Salduz, Mader
et al) arises during pre-trial procedural acts, including police questioning:
“The Court observes that it is undisputed that the applicants lacked means
to employ a private representative in the context of criminal proceedings
against them. It is also uncontested that the applicants' request for an
official lawyer to be appointed was ignored by the authorities, with the result
that they had no defence counsel for more than a year. Given that a number of
procedural acts, including questioning of the applicants and their
medical examinations, were carried out during that period (see §§ 40-45 above),
the Court finds no justification for this restriction which deprived the
applicants of the right to adequately defend themselves during the
investigation and trial. Accordingly, there has been a breach of Article 6 §§ 1
and 3 (c) of the Convention.” Means test Pakelli v Germany The Court held that the first part of Art 6.3(c) was satisfied as it
appeared that Mr Pakelli did not have sufficient means to pay a lawyer at the
time of the appeal in Germany. The ECtHR relied on “some indications” that the
applicant had been unable to pay for his lawyer, including tax-related statements,
and the fact that the applicant had spent the previous two years in custody
while his appeal on points of law were pending. In the absence of indications
to the contrary, the ECtHR was satisfied that the applicant was engaged in
business on a small scale and that his financial situation was modest, in
finding that he lacked the means to pay for a lawyer.[117] In addition, the relevant
authority must seriously consider the relevant circumstances of the
particular case.[118]
Therefore, the contracting states’ means tests – whatever they comprise –
should not be so inflexible as to obstruct the practical and effective exercise
of the Article 6(3)(c) right to legal aid. The test of "interest of
justice" (merits test) Quaranta v Switzerland[119] The court held that three factors
determine when “the interests of justice” in Article 6(3)(c) require the
right to free legal advice. These factors are broad, and comprise the: a)
Seriousness of the offence and the severity of the potential sentence; b)
Complexity of the case; and c) personal situation of the defendant. The Court examined the various criteria. It
examined the seriousness of the offence of which the applicant was accused and
the severity of the sentence which he risked: he had been charged with use of and
traffic in narcotics and was liable to a sentence up to 3 years' imprisonment.
This warranted free legal assistance by reason of the mere fact that so much
was at stake. It also took into account the personal situation of the defendant:
“a young adult of foreign origin from an underprivileged background, he had
no real occupational training and a long criminal record. He had taken drugs
since 1975, almost daily since 1983, and, at the material time, was living with
his family on social security benefit”.[120]
Benham v
United Kingdom[121]
The applicant, Stephen Benham, became
liable to pay a community charge known as the ‘poll tax’. The applicant
did not pay the amount owed, and bailiffs visited his parents' house (where he
was living), but were told that he had no goods of any value there or elsewhere
which could be seized by them and sold in order to pay the debt. Under the
relevant regulations, the authorities were empowered to apply to a magistrates'
court for an order committing to prison a person who was found to have
insufficient goods on which to levy outstanding community charge. The charging
authority applied for such an order, and on 25 March 1991 Mr Benham appeared at
the Poole Magistrates' Court for the inquiry required by the regulations. He
was not assisted or represented by a lawyer, although he was eligible for legal
advice and assistance before the hearing. The applicant was convicted by the
magistrates. He faced a possible maximum penalty of three months'
imprisonment, and was ordered to be detained for thirty days (the case was
however overturned on appeal). The applicant submitted that the interests of
justice required that he ought to have been represented by a legal aid lawyer
when he appeared before the magistrates. It was not disputed that Mr Benham lacked sufficient means to pay
for legal assistance himself. The only issue before the Court was whether
the interests of justice required that Mr Benham be provided with free legal
representation at the hearing before the magistrates. In answering this
question, regard had to be had to the severity of the penalty at stake and the
complexity of the case. The ECtHR held that “where
the deprivation of liberty is at stake, in principle the interests of justice
call for legal representation” and added that in the case, the defendant ought
to have benefited from free legal representation. In this
case, Mr Benham faced a maximum term of three months' imprisonment. The
Court also added that the law which the magistrates had
to apply was not straightforward. Effectiveness of legal aid system Wersel v Poland[122] In Wersel v
Poland, the ECtHR’s ruled that judicial
authorities’ decisions regarding the availability of legal aid should be made
in sufficient time to enable the accused to present their case in a
concrete and effective way. In the
case at hand, the shortness of the time left to the applicant for appointing a
lawyer of his choice and for preparing the intended cassation appeal did not
give him a realistic opportunity of having his case brought to and defended in
the cassation court in a “concrete and effective way” as the legal aid board communicated their refusal two days before the
expiry of the time-limit for the submission of the applicant’s appeal.[123] Right to choose counsel Croissant v Germany[124] On the point of the suspect’s right to choose a lawyer, the
court held the suspect’s or accused’s Article 6(3)(c) right to be defended by
counsel of his own choosing, notwithstanding the importance of a relationship
of confidence between lawyer and client, cannot be considered to be absolute –
it may be constrained where there are relevant and sufficient grounds
for holding that this is in the interests of justice. However, the reference to
“relevant and sufficient grounds” implies that in the ordinary course of
events (i.e. unless exceptional circumstances apply), the suspect should indeed
have a role in choosing the state funded defence lawyer. This is especially
the case since the Strasbourg court found in Croissant that national
courts must have regard to the defendant’s wishes when appointing defence
counsel, albeit they can override those wishes when there are
relevant and sufficient grounds for holding that this is necessary in the
interests of justice.[125]
“notwithstanding the importance of a relationship of confidence between
lawyer and client, this right cannot be considered to be absolute. It is
necessarily subject to certain limitations where free legal aid is concerned
and also where, as in the present case, it is for the courts to decide whether
the interests of justice require that the accused be defended by counsel
appointed by them. When appointing defence counsel the national courts must
certainly have regard to the defendant’s wishes … However, they can override
those wishes when there are relevant and sufficient grounds for holding that
this is necessary in the interests of justice”.[126] Ramon Franquesa Freixas v Spain[127] The applicant complained that his Article 6(3)(c)
rights were violated because he had been assigned a lawyer specializing in labour law to defend him in a criminal case. The ECtHR held
that his complaint was manifestly ill founded, because Article 6(3)(c) did not
guarantee a defendant the right to choose which lawyer the court should assign
him and because the applicant had failed to present any plausible evidence to
support his assertion that the lawyer was incompetent. Possibility for the State to require repayment of costs for legal
aid Croissant v Germany[128] The ECtHR noted that under German
law the requirement for a convicted individual to pay the fees and
disbursements of his court-appointed counsel was a normal consequence of the
conviction, and that it was only in the ensuing enforcement proceedings that
his or her financial situation played a role. In the Court’s view, such a
system would not be compatible with Article 6 if it adversely affected the
fairness of the proceedings. There was, however, no indication that it
generally produced such a result or had done so in Mr Croissant’s case. The
appointment of his defence counsel had been compatible with the
requirements of Article 6 and it was therefore not incompatible with that
provision that he was liable to pay their fees, which were not excessive. Ognyan Asenov v Bulgaria[129] The applicant
complained that following his conviction he was ordered to reimburse the fees
of his court-appointed counsel. The ECtHR examined whether the possibility of being ordered to bear the
costs of his defence in the event of a conviction had inhibited the applicant
from asking the trial court to appoint a lawyer for him. The ECtHR found that
the applicant had not felt inhibited and that it did not undermine his
procedural rights.[130] Quality control Artico v. Italy[131] The Court recalled that the ECHR is intended to guarantee not rights
that are theoretical or illusory but rights that are practical and effective;
this is particularly so if the rights of the defence in view of the prominent
place held in a democratic society by the right to a fair trial, from which
they derive. Article 6.3(c) speaks of "assistance" and not of
"nomination". Mere nomination does not ensure effective assistance
since the lawyer appointed for legal aid purposes may die, fall seriously ill,
be prevented for a protracted period from acting or shirk his duties. If they
are notified of the situation, the authorities must either replace him or cause
him to fulfil his obligations. Adoption of the Government’s restrictive
interpretation would lead to results that are unreasonable and incompatible
with both the wording of 6.3(c) and the structure of Article 6 taken as a
whole; in many instances free legal assistance might prove to be worthless.
Admittedly, a State cannot be held responsible for every shortcoming on the
part of a lawyer appointed for legal aid purposes but, in the particular
circumstances, it was for the competent Italian authorities to take steps to
ensure that the applicant enjoyed effectively the right to which they had
recognised he was entitled. Imbrioscia v. Switzerland[132] The ECtHR remarked that the applicant's lawyers did not complain of
not being invited to attend the interviews and that the second lawyer did have
the occasion to attend the last interview after requesting to do so. It held
that the applicant did not at the outset have the necessary legal support, but
"a State cannot be held responsible for every shortcoming on the part of a
lawyer appointed for legal aid purposes" see the Kamasinski v. Austria
judgment of 19 December 1989, Series A no. 168, p. 33, para. 65) or chosen by
the accused. Owing to the legal profession’s independence, the conduct of the
defence is essentially a matter between the defendant and his representative; under
Article 6.3(c) the Contracting States are required to intervene only if a
failure by counsel to provide effective representation is manifest or
sufficiently brought to their attention. Daud v Portugal[133] In Daud v Portugal, the
legal aid lawyer was only appointed three days prior to the trial for a
serious, complex case. The ECtHR held that it was manifestly evident to the
State authorities that the legal aid lawyer did not have time to prepare for
the trial, and that they should have intervened to ensure the quality of the
defence.[134] Falcao dos
Santos v Portugal[135] The lawyer attended court but remained silent; he did not cross-examine
witnesses or otherwise intervene on the applicant’s behalf.[136] The applicant repeatedly complained about
his poor legal representation to the authorities. The ECtHR found that the
authorities failed to guarantee real assistance, as opposed to mere
“appointment” of the lawyer, and that they had a duty to intervene.[137] ANNEX IV
Detailed calculations on policy options 3 and 4 Introduction Assessing the
likely financial and economic impacts of the policy options with a degree of
quantitative precision has proved to be difficult. This is largely due to the
lack of detailed data relating to, inter alia, the: ·
Cost (including training, infrastructure, and
legal aid) to Member States of providing access to state-funded legal
assistance, in particular at the pre-trial stage – both in absolute terms
and as a proportion of their overall expenditure on legal aid. ·
Cost (including training, infrastructure, and
legal aid) of bringing non-compliant Member States into line with ECHR
jurisprudence. ·
It is also due to an impossibility to estimate
with sufficient degree of accuracy, the quantitative increment of additional
hours of legal advice that the implementation of the different options would
lead to as this depends on case-by-case factors which cannot be realistically
assessed in advance. Thus, model
calculations for the costs of the policy options provided below are based on
such limited data as we obtained, working with external experts and other
researchers and practitioners in this field. In addition, available reports
and publications on the number of criminal cases and the costs of proceedings
have been used. The EU-wide extrapolations set out are at best indicative and
at times, due to significant divergence between Member States in terms of these
numbers obtained, expressed as a wide range of estimated predicted costs for
individual Member States. Furthermore,
the bulk of the financial impacts are a result of bringing all Member States in
line with ECHR standards. Furthermore, some option are not expected to bear any
further costs as they will entail a change in procedures rather than extra work
from the stakeholders. The costs would vary between
Member States and it likely that the financial impact on some jurisdictions
would be minimal. The wide range of expected impacts reflects the multiple
variables discussed above, such as the administrative systems and legal rights
already in place in the Member State and the hidden savings. Member States'
potential savings owing to a reduction in a number of appeals, condemnations by
the ECtHR, or delays in judicial cooperation proceedings cannot be estimated
with any statistical precision due to lack of Member state data on costs per
case. Only indicative qualitative expectations in non-numerical terms can therefore
be provided based on stakeholders' judgments, including officials from
Ministries of Justice NGOs and practitioners as they have expressed in focus
groups and interviews for the Study. Costs of emergency legal aid Policy option 3 In order to assess
the costs of emergency legal aid, we have first of all identified the countries
where such a system is available at the early stages of the proceedings.
Figures exist for four jurisdictions that have brought about a system similar
to that of emergency legal aid, namely France, Belgium, the Netherlands and
England & Wales. While each system functions differently, these examples
provide interesting data that can be used to assess the average cost of an
emergency legal aid intervention for each Member State. In France, the annual budget
of the legal aid during the garde à vues proceedings stands at € 48 million.
The remuneration is as follows: ·
€ 61 when a lawyer is present for a meeting with
the suspect at the start of the GAV. ·
€ 300 when a lawyer is present for a meeting
with the suspect at the start of the GAV as well as during the questioning ·
€ 250 when a lawyer is present for a meeting
with the suspect at the start of the GAV as well as during the questioning for
each extension of the GAV for 14 h Furthermore, regardless of the number of
interventions, a lawyer cannot be remunerated more than €1,200 per 24 hours. Lawyers are present during the garde à vue
only in an estimated 30%-40% of GAV cases[138],
i.e. 243,810 cases (35% of cases). Overall, the average cost of
emergency legal aid per intervention is therefore estimated at (€48 million /
243,810 cases) €197 per intervention. It should be noted that in France, the
number of garde à vues fell by 22.6% in the year since the reform was passed,
which means that there were an estimated 696,600 gardes à vues in the 12 month
leading to June 2012. (see further below) In the Netherlands, following the
“Salduz” reform of September 2009, an estimated 50% of the 310-360,000 arrest
per annum were expected to take on the right to benefit from state-funded legal
assistance. However in practice, only 21,000 (6.2%) consultations took place
in 2010 and an estimated 38,000 (11.3% of cases) in 2011 for a total
cost of 5.5 million, averaging at (€5.5 million / 38,000) € 145 per
intervention.[139]
In Belgium, the number of auditions
Cat IV (first audition of a suspect deprived of liberty) amounted to 45,756[140].
According to the French and German speaking bar association, 80% of suspects
(36,606) asked for the presence of a lawyer at this stage. The 2012 budget for
the introduction of the loi Salduz (i.e. the presence of a lawyer at the first
point of police interrogation with deprivation of liberty) is € 3.5 million.
The average remuneration is thus estimated at (€3.5 million / 36,606) €96
per intervention. In England and Wales, the provision
of legal aid at the police stage amounted to £176 million (€217 million) in
2011. Over the same period, there were 642,631 cases where the police
interviewed a suspect under the conditions for which they are entitled to legal
aid. Legal aid was provided to 98% of suspects. The average
remuneration was thus (€217 million / (98% of 642,631 = 629,778) € 345 per
intervention. In order to
weight the relative cost of justice in the different Member States, we have
used figures from the Study on the Transparency of Costs of Civil Judicial
Proceedings in the European Union[141]
to assess the relative cost of justice in all Member States. While these
figures relate to civil justice data, they provide an adequate idea of the
relative cost of justice in the different member States. For instance the cost
of a criminal justice lawyer is roughly the same in France and Germany, and
around 4 times the cost of a lawyer in Poland. The data used[142] (Column B) date
from 2007 and have been inflated annually since 2007. It is important to note that the figures provided refer to the daily
fees of lawyers in civil proceedings, while the daily fee of criminal lawyers
might be different. However, discussions with
criminal defence lawyers have confirmed that the figures provided are
comparable with existing rates for criminal lawyers. We have then calculated the cost of
emergency legal aid intervention as a share of the hourly lawyer fee. In the
case of Belgium for instance, the average cost of emergency legal aid (€96) is
43% of the hourly fee (€223). We have averaged this figure for the four
jurisdictions where the information is available to reach the figure of 48%
(Column C). In other words, the average cost of an emergency legal aid
intervention is 48% of the hourly rate of a lawyer. We then estimate the
average cost of an emergency legal aid intervention in each Member States but multiplying
the cost per hour of a lawyer by 48%. (Column B) These calculations provide us
with the average cost of an emergency legal aid intervention were the system to
be put in place (Column D). This allows for a weighted average fee for
emergency legal aid per intervention. One shortfall of this calculation is
that it does not take into account the amount of time spend by a lawyer at the
police station. However, in the absence of figures for this the calculations
need to settle for an overall cost per intervention. Table 1: Cost of emergency legal aid intervention – per case EU jurisdiction (A) || Hourly lawyer fee (2007 with inflation) (B)[143] || Average cost of Emergency Legal aid in percentage of the hourly cost of lawyer (C)[144] || Average cost of emergency legal aid case (D)[145] Austria || 383 || || 184 Belgium || 223 || 43% || 96* Bulgaria || 51 || || 25 Croatia || 137 || || 66 Cyprus || 128 || || 61 Czech Republic || 96 || || 46 England & Wales || 574 || 60% || 345* Estonia || 223 || || 107 Finland || 383 || || 184 France || 383 || 51% || 197* Germany || 383 || || 184 Greece || 223 || || 107 Hungary || 223 || || 107 Ireland || 574 || || 276 Italy[146] || 223 || || 107 Latvia || 383 || || 184 Lithuania || 96 || || 46 Luxembourg || 223 || || 107 Malta || 128 || || 61 Netherlands || 383 || 38% || 145* Poland || 96 || || 46 Portugal || 223 || || 107 Romania || 96 || || 46 Scotland || 574 || || 276 Slovakia || 96 || || 46 Slovenia || 223 || || 107 Spain || 38 || || 18 Sweden || 383 || || 138[147] Total || || 48% || *- Figures
explained above Now that we have figures on the cost on an
emergency legal aid intervention, it is possible to estimate the cost of
introducing a system of emergency legal aid for each Member State For the same Member States as above
(E&W, BE, FR, NL), data are available on the number of criminal cases where
the suspect accused is effectively deprived of liberty (the equivalent of the
Garde à vue in France). It is thus possible in those Member States to
calculate the percentage of criminal cases for which there has been an
effective deprivation of liberty. Table 2: Calculations of the share of emergency criminal cases
receiving legal aid || Total number of criminal cases (B)[148] || Number of cases of deprivation of liberty (C)[149] || Percentage of cases of deprivation of liberty out of total criminal cases (D)[150] || Share of cases of deprivation of liberty receiving legal aid (E)[151] Belgium || 189,716* || 45,756 || 24% || 80% England and Wales || 994,142* || 642,631 || 68% || 98% France || 1,061,097 || 696,600 || 66% || 35% The Netherlands || 441,911 || 335,000 || 76% || 11% Average || || || 58% || 56% *- Extrapolated figures. In order to extrapolate the figures, we
have calculated the number of criminal cases per 1,000 inhabitants for Member
States where the data is available and extrapolated those figures based on the
population of the Member States for which data was needed. In order to reflect
differences between legal aid systems, we have grouped Member States as follows
(EU 15, EU10+ Croatia, and BG+ RO) Below, we show the costs are incurred for
Member States where legal aid is not available at the stage where the suspect
is first interrogated and not free to leave, (namely BG, CY, EE, EL, PL, PT,
SI). Costs are also incurred for a number of
Member States where the situation in practice is that legal aid is not always
available at the first stage of deprivation of liberty (FI, DE, HU. IT, RO)
according to the following criteria: FI - The
suspect usually has the right to consult his or her lawyer before police
questioning (Section 10(3), Criminal Investigations Act) and to have the lawyer
with him or her when questioned by the police (Section 31, Criminal
Investigations Act). It varies how soon after the suspect’s detention legally
aided assistance is usually provided and there are no statistics about this.
We have thus assumed that the extra cost of the measure would be 50% of what
“legal aid at the police station” should cost €3,593,816
/ 2 = €1,796,908 DE -
Questioning of indigent suspects/accused can in practice take place without
access to a lawyer, is in part remedied by the existence of emergency legal
service groups all over Germany through which volunteer lawyers provide police
station advice on a pro bono basis. For practical purposes, a measure on
emergency legal aid would assume that the lawyers are remunerated and the full
costs must thus be applied. HU – In
Hungary, despite the law setting out that a lawyer must be present at the time
of first police interrogation, the shortcoming expressed during our workshop
have lead us to include figures for the Member State. We therefore base the
calculation on the assumption that only 10% of cases of legal aid at the police
station is paid, thus the extra cost of the measure is €9,473,020 x 90% = €8,525,718 IT - The
suspect has the right to have access to a lawyer directly after being
arrested. This right to legal assistance immediately after arrest includes, in
practice, the provision of state-funded (i.e. legally aided) assistance.
Conversations with criminal defence lawyers highlight that in practice, this
only happens at the point of formal arrest (decision by a judge) rather than
questioning by the police. Consequently, we have assumed that the extra cost of
the measure would 50% of what “legal aid at the police station” should cost =
€56,352,513 / 2 = €28,176,256 RO – The
situation in practice is unclear. Based on conversations with criminal defence
lawyers, we have thus assumed that the extra cost of the measure would be 50%
of what “legal aid at the police station” should cost €2,581,420 / 2 =
€1,290,710 To summarise, column H below includes the
costs incurred to bring about emergency defence in the countries where it does
not exist BG, CY, EE, DE, EL, PL, PT. It also includes the costs of ensuring an
increased emergency defence in the Member States where it is not fully
implemented, as mentioned above with the following percentages; 90% of HU, 50%
of IT, 50% of FI, 50% of RO and SI. Table
3: Cost of Emergency legal Aid EU jurisdiction (A) || Legal aid expenditure for criminal proceedings – CEPEJ except where noted (€) (B)[152] || Number of criminal cases (CEPEJ Statistics except where noted) (C)[153] || Number of cases of deprivation of liberty – Column C x 58% (D)[154] || Number of cases of deprivation of liberty receiving legal aid – Column D x 56% (E)[155] || Cost of emergency legal aid per case (F)[156] || Legal aid at the early stages in gross/year (G)[157] || Extra cost of the measure (H) Austria || 8,920,405* || 60,726 || 35,470 || 19,894 || 184 || 3,656,620 || 0 Belgium || 36,518,391* || 189,716* || 45,756(a) || 36,605(a) || 96 || 3,500,000 || 0 Bulgaria || 3,094,184 || 118,262 || 69,077 || 38,742 || 25 || 949,487 || 949,487(b) Croatia || 191,793* || 110,524 || 64,557 || 36,207 || 66 || 2,384,784 || 0 Cyprus || 194,090* || 117,495 || 68,629 || 38,491 || 61 || 2,358,323 || 2,358,323 Czech Republic || 21,474,461 || 97,675 || 57,052 || 31,998 || 46 || 1,470,377 || 0 England & Wales || 1,344,000,000 || 944,142* || 642,631(a) || 629,778(a) || 345 || 217,000,000 || 0 Estonia || 2,491,687* || 48,359(a) || 28,246 || 15,842 || 107 || 1,698,632 || 1,698,632 Finland || 28,167,147* || 59,683(a) || 34,861 || 19,552 || 184 || 3,593,816 || 1,796,908(b) France || 119,010,621 || 1,061,097 || 696,600(a) || 243,810(a) || 197 || 48,000,000 || 0 Germany || 85,822,785 || 1,181,995 || 690,401 || 387,217 || 184 || 71,173,911 || 71,173,911(b) Greece || 1,212,012* || 195,929* || 114,442 || 64,186 || 107 || 6,882,097 || 6,882,097 Hungary || 254,684* || 269,691 || 157,526 || 88,350 || 107 || 9,473,020 || 8,525,718(b) Ireland || 54,967,000 || 77,625* || 45,341 || 25,430 || 276 || 7,011,295 || 0 Italy || 87,080,432 || 1,607,646 || 939,023 || 526,659 || 107 || 56,352,513 || 28,176,256(b) Latvia || 770,366 || 9,959 || 5,817 || 3,263 || 184 || 599,682 || 0 Lithuania || 3,263,613* || 81,277(a) || 47,474 || 26,626 || 46 || 1,223,529 || 0 Luxembourg || 1,454,414* || 14,579 || 8,516 || 4,776 || 107 || 512,094 || 0 Malta || 71,019* || 19,613 || 11,456 || 6,425 || 61 || 393,666 || 0 Netherlands || 102,000,000 || 441,911 || 335,000(a) || 38,000(a) || 145 || 5,500,000 || 0 Poland || 19,420,734* || 1,111,772 || 649,384 || 364,212 || 46 || 16,736,357 || 16,736,357 Portugal || 25,035,920* || 115,466 || 67,444 || 37,826 || 107 || 4,055,796 || 4,055,796 Romania || 7,485,586 || 171,480 || 100,161 || 56,176 || 46 || 2,581,420 || 1,290,710(b) Scotland || 72,720,690* || 152,522 || 89,088 || 49,966 || 276 || 13,776,184 || 0 Slovakia || 1,134,444* || 41,189 || 24,058 || 13,493 || 46 || 620,050 || 0 Slovenia || 4,874,683* || 90,205 || 52,689 || 29,551 || 107 || 3,168,492 || 3,168,492 Spain || 115,334,141* || 1,336,505 || 780,650 || 437,834 || 184 || 80,477,741 || 0 Sweden || 130,470,000 (a) || 91,000(a) || 53,153 || 29,811 || 138 || 5,479,571 || 0 Total || 2,323,711,614 || || || || || 659,483,717 || 139,930,590 *-Extrapolations (see explanations above);In order to extrapolate
the figures, we have calculated the number of criminal cases per 1,000
inhabitants for Member States where the data is available and extrapolated
those figures based on the population of the Member States for which data was
needed. In order to reflect differences between legal aid systems, we have
grouped Member States as follows (EU 15, EU10+Croatia, and BG+RO) (a)
Figures provided by the Ministry of Justice (b) Member States where some cases are covered by
emergency legal aid but not all of them Total
cost of policy option 3 on emergency defence (before deduction of savings): 140
million Cost savings and recovery A. Recovery of legal aid from suspects
where it is found that they do not qualify for legal aid in the subsequent
eligibility testing The cost of emergency legal aid is off-set
by the recovery of the costs from suspected and accused persons that do not
fulfilling the eligibility criteria. If it is found, in the subsequent means
and or merits test is found not eligible for legal aid, the Member State will
have a right to recover the costs of emergency legal aid from the individual.
The methods for recovery, and thus how effectively this is done, will be up to
the Member States domestic legislation. In this table, the recovery of emergency
legal aid cost is calculated (i) based on the current situation of legal aid in
the Member State, as well as according to three scenarii of the share of cases
receiving legal aid (current situation, 15% and 20%)[158]. In the cases that
do not qualify for legal aid, we however assume that the Member State will
ultimately not be able to recover all the costs in practice. Therefore, there
are three scenarii, based on the rate of successful recover for the Member
States. Assuming that only 25% of emergency legal
aid cases that do not qualify for legal aid will ultimately be recovered, on
the basis of 15% or 20 % of cases receiving legal aid, the overall total amount
of emergency legal aid that would be recovered once the means and/or merits
test are applied throughout the EU would be an estimated € 28-29 million. By
deducting this figure from the total amount spent on emergency legal aid
throughout the EU under this measure, the total spent
on this measure would therefore be (€ 140 million - € 29.2 million) = €
110.8 million. Table
4: Recovery of emergency legal aid EU jurisdiction (A) || Share of cases receiving legal aid (B) || Legal aid at police station (C) || Costs recovered if 75% of non-eligible suspects ultimately repay emergency legal aid || Costs recovered if 50% of non-eligible suspects ultimately repay emergency legal aid || Costs recovered if 25% of non-eligible suspects ultimately repay emergency legal aid Current share of suspects / accuseds granted legal aid || 15% of suspects / accuseds are granted legal aid || 20% of suspects / accuseds are granted legal aid || Current share of suspects / accuseds granted legal aid || 15% of suspects / accuseds are granted legal aid || 20% of suspects / accuseds are granted legal aid || Current share of suspects / accuseds granted legal aid || 15% of suspects / accuseds are granted legal aid || 20% of suspects / accuseds are granted legal aid Austria || 16%(a) || 3,656,620* || 2,316,775 || 2,316,775 || 2,193,972 || 1,544,517 || 1,544,517 || 1,462,648 || 772,258 || 772,258 || 731,324 || Belgium || 20%* || 3,500,000 || 2,089,324 || 2,089,324 || 2,089,324 || 1,392,882 || 1,392,882 || 1,392,882 || 696,441 || 696,441 || 696,441 || Bulgaria || 28%(b) || 949,487* || 514,610 || 514,610 || 514,610 || 343,073 || 343,073 || 343,073 || 171,537 || 171,537 || 171,537 || Croatia || 13%(c) || 2,384,784* || 1,555,760 || 1,520,300 || 1,430,871 || 1,037,173 || 1,013,533 || 953,914 || 518,587 || 506,767 || 476,957 || Cyprus || 4%(c) || 2,358,323* || 1,703,303 || 1,503,431 || 1,414,994 || 1,135,535 || 1,002,287 || 943,329 || 567,768 || 501,144 || 471,665 || Czech Republic || 13%(c) || 1,470,377* || 959,229 || 937,365 || 882,226 || 639,486 || 624,910 || 588,151 || 319,743 || 312,455 || 294,075 || England & Wales || 59%(d) || 217,000,000 || 66,045,490 || 66,045,490 || 66,045,490 || 44,030,327 || 44,030,327 || 44,030,327 || 22,015,163 || 22,015,163 || 22,015,163 || Estonia || 67%(e) || 1,698,632* || 423,033 || 423,033 || 423,033 || 282,022 || 282,022 || 282,022 || 141,011 || 141,011 || 141,011 || Finland || 56%(e) || 3,593,816* || 1,193,658 || 1,193,658 || 1,193,658 || 795,772 || 795,772 || 795,772 || 397,886 || 397,886 || 397,886 || France || 37%(b) || 48,000,000 || 22,628,631 || 22,628,631 || 22,628,631 || 15,085,754 || 15,085,754 || 15,085,754 || 7,542,877 || 7,542,877 || 7,542,877 || Germany || 22%(c) || 71,173,911* || 42,767,091 || 42,767,091 || 42,704,347 || 28,511,394 || 28,511,394 || 28,469,564 || 14,255,697 || 14,255,697 || 14,234,782 || Greece || 20%* || 6,882,097* || 4,108,265 || 4,108,265 || 4,108,265 || 2,738,843 || 2,738,843 || 2,738,843 || 1,369,422 || 1,369,422 || 1,369,422 || Hungary || 0%(b) || 9,473,020* || 7,097,494 || 6,039,050 || 5,683,812 || 4,731,663 || 4,026,033 || 3,789,208 || 2,365,831 || 2,013,017 || 1,894,604 || Ireland || 71%(d) || 7,011,295* || 1,504,754 || 1,504,754 || 1,504,754 || 1,003,170 || 1,003,170 || 1,003,170 || 501,585 || 501,585 || 501,585 || Italy || 6%(b) || 56,380,994 || 39,574,575 || 35,942,884 || 33,828,596 || 26,383,050 || 23,961,922 || 22,552,398 || 13,191,525 || 11,980,961 || 11,276,199 || Latvia || 13%(c) || 599,682* || 391,214 || 382,297 || 359,809 || 260,809 || 254,865 || 239,873 || 130,405 || 127,432 || 119,936 || Lithuania || 42%(f) || 1,223,529* || 530,366 || 530,366 || 530,366 || 353,577 || 353,577 || 353,577 || 176,789 || 176,789 || 176,789 || Luxembourg || 20%(c) || 512,094* || 305,694 || 305,694 || 305,694 || 203,796 || 203,796 || 203,796 || 101,898 || 101,898 || 101,898 || Malta || 13%(c) || 393,666* || 256,816 || 250,962 || 236,200 || 171,210 || 167,308 || 157,466 || 85,605 || 83,654 || 78,733 || Netherlands || 13%(c) || 5,500,000 || 3,588,031 || 3,506,250 || 3,300,000 || 2,392,021 || 2,337,500 || 2,200,000 || 1,196,010 || 1,168,750 || 1,100,000 || Poland || 13%(c) || 16,736,357* || 10,918,286 || 10,669,428 || 10,041,814 || 7,278,857 || 7,112,952 || 6,694,543 || 3,639,429 || 3,556,476 || 3,347,271 || Portugal || 73%(c) || 4,055,796* || 784,909 || 784,909 || 784,909 || 523,273 || 523,273 || 523,273 || 261,636 || 261,636 || 261,636 || Romania || 15%(c) || 2,581,420* || 1,630,420 || 1,630,420 || 1,548,852 || 1,086,947 || 1,086,947 || 1,032,568 || 543,473 || 543,473 || 516,284 || Scotland || 13%(c) || 13,776,184* || 8,987,160 || 8,782,317 || 8,265,711 || 5,991,440 || 5,854,878 || 5,510,474 || 2,995,720 || 2,927,439 || 2,755,237 || Slovakia || 13%(c) || 620,050* || 404,501 || 395,282 || 372,030 || 269,668 || 263,521 || 248,020 || 134,834 || 131,761 || 124,010 || Slovenia || 2%(b) || 3,168,492* || 2,339,593 || 2,019,914 || 1,901,095 || 1,559,728 || 1,346,609 || 1,267,397 || 779,864 || 673,305 || 633,698 || Spain || 23%(b) || 80,477,741* || 43,061,527 || 43,061,527 || 43,061,527 || 28,707,685 || 28,707,685 || 28,707,685 || 14,353,842 || 14,353,842 || 14,353,842 || Sweden || 59%(g) || 4,122,899* || 1,267,791 || 1,267,791 || 1,267,791 || 845,194 || 845,194 || 845,194 || 422,597 || 422,597 || 422,597 || Total All EU || || 569,301,267 || 268,948,300 || 263,121,819 || 258,622,381 || 179,298,867 || 175,414,546 || 172,414,921 || 89,649,433 || 87,707,273 || 86,207,460 || Total relevant cost saving† || || || 91,146,161 || 87,609,307 || 85,294,051 || 60,764,107 || 58,406,204 || 56,862,701 || 30,382,054 || 29,203,102 || 28,431,350 || † Calculations based on recovery of the
costs for emergency defence in BG, CY, EE, DE, EL, PL, PT and with 50% of FI,
90% of HU, 50% of IT,50% of RO and SI as explained above. B.
Savings due to a fall in pre-trial detention Furthermore, a system of emergency legal
aid would also arguably reduce the number of pre-trial detentions. No figures
exist for the length of pre-trial detentions so the calculations below are
based on the cases of Pre-trial detention. In Belgium, following the Salduz
law, the number of pre-trial detention cases fell by 30%. In France the number
of Garde à vue went down by 22.6 %, although all Garde à vue do not end up in
cases of Pre-trial detention. A recent FTI report estimates the cost of a
month of pre-trial detention to cost €3,000. The table below presents data from
the International Centre for Prison Studies World Prison Report 2011. The calculation of the saving is made on
the assumption that the pre-trial detention would have lasted 1 month (i.e.
number of pre-trial detainees X 3000 X percentage of the fall in pre-trial
detention). This assumption gives us a minimum saving, as often pre-trial
detentions last longer than 1 month. Would it instead have lasted 2 months, it
suffices to multiply the saving by 2. Table 5: Savings linked to a fall in Pre-trial detention || Prison population (a) || Share of the prison population in pre-trial detention(a) || Number of pre-trial detainees || Scenarii – fall in pre-trail detentions 10% || 20% || 30% || 40% Austria || 8,694 || 21.2% || 1,843 || N/A || N/A || N/A || N/A Belgium || 10,974 || 34.0% || 3,731 || N/A || N/A || N/A || N/A Bulgaria || 10,961 || 22.0% || 2,411 || 723,426 || 1,446,852 || 2,170,278 || 2,893,704 Croatia || 5,064 || 17.3% || 876 || N/A || N/A || N/A || N/A Cyprus || 900 || 44.6% || 401 || 120,420 || 240,840 || 361,260 || 481,680 Czech Republic || 23,015 || 10.0% || 2,302 || N/A || N/A || N/A || N/A England & Wales || 86,047 || 13.6% || 11,702 || N/A || N/A || N/A || N/A Estonia || 3,306 || 23.2% || 767 || 230,098 || 460,195 || 690,293 || 920,390 Finland || 3,214 || 18.1% || 582 || 87,260 || 174,520 || 261,780 || 349,040 France || 67,373 || 25.4% || 17,113 || N/A || N/A || N/A || N/A Germany || 67,671 || 16.5% || 11,166 || 3,349,715 || 6,699,429 || 10,049,144 || 13,398,858 Greece || 12,586 || 31.2% || 3,927 || 1,178,050 || 2,356,099 || 3,534,149 || 4,712,198 Hungary || 17,210 || 28.3% || 4,870 || 1,315,016 || 2,630,032 || 3,945,048 || 5,260,064 Ireland || 4,401 || 14.2% || 625 || N/A || N/A || N/A || N/A Italy || 66,685 || 40.2% || 26,807 || 4,021,106 || 8,042,211 || 12,063,317 || 16,084,422 Latvia || 6,561 || 31.0% || 2,034 || N/A || N/A || N/A || N/A Lithuania || 9,920 || 13.6% || 1,349 || N/A || N/A || N/A || N/A Luxembourg || 660 || 39.2% || 259 || N/A || N/A || N/A || N/A Malta || 580 || 64.0% || 371 || N/A || N/A || N/A || N/A Netherlands || 14,488 || 40.6% || 5,882 || N/A || N/A || N/A || N/A Poland || 84,730 || 8.7% || 7,372 || 2,211,453 || 4,422,906 || 6,634,359 || 8,845,812 Portugal || 13,630 || 20.0% || 2,726 || 817,800 || 1,635,600 || 2,453,400 || 3,271,200 Romania || 31,934 || 10.8% || 3,449 || 517,331 || 1,034,662 || 1,551,992 || 2,069,323 Scotland || 1,191 || 16.5% || 197 || N/A || N/A || N/A || N/A Slovakia || 11,092 || 12.3% || 1,364 || N/A || N/A || N/A || N/A Slovenia || 1,412 || 18.8% || 265 || 79,637 || 159,274 || 238,910 || 318,547 Spain || 69,437 || 15.7% || 10,902 || N/A || N/A || N/A || N/A Sweden || 6,669 || 22.8% || 1,521 || N/A || N/A || N/A || N/A Total relevant costs saving†¤ || || 14,651,310 || 29,302,620 || 43,953,930 || 58,605,240 (a)
ICPS World
Prison Brief, ¤ As per the explanations provided above † Calculations based on the fall in BG, CY,
EE, DE, EL, PL, PT and with 50% of FI, 90% of HU, 50% of IT,50% of RO and SI as
explained above. . Based on a scenario where the number of
pre-trial detentions would fall by 20 %,in those
jurisdictions introducing emergency legal aid, one could expect costs savings
of €29 million (if the pre-trial detention falls on average by one
month) or 59 million (if pre-trial detention on average falls by two
months). Conclusion
costs policy option 3: The total
cost of this option would therefore amount to: Cost of
introducing emergency legal aid: €140 million Amount of
emergency legal aid recovered: - €29.2 million Amount
saved by fall in Pre-trial detention: - €29.3 million–58.6 million Total
cost of the option: range of 52.2
million - €81.5 million Costs
of emergency legal aid under Option 4 In this case, it is assumed that legal aid
would be given to everyone that is interviewed in the police station. The calculations are based on the
assumption that in a number of the total of criminal proceedings mentioned in C
below, no questioning will take place as there might be summary proceedings or
cases of strict liability. In Column D, the number of criminal cases where
questioning in the police station will take place figures and it has on the
basis of contacts with stakeholders been calculated by assuming that in 70 % of
the cases where a person is not detained (i.e. in 42 % of the total number of
criminal cases), there will be questioning. This figure is possibly high, but
ensures that the costs calculated are maximum costs. In Column E: Column D multiplied with 0.56
as it is assumed (as above) that 56 % of the suspected or accused persons will
avail themselves of that right see reasoning under option 3). Table
6: Cost of emergency defence for all persons interviewed at police station EU jurisdiction (A) || Legal aid expenditure for criminal proceedings – CEPEJ except where noted (€) (B) || Number of criminal cases CEPEJ except where noted (C) || Number of criminal cases where questioning in the police station with legal aid would take place (Cx0,42X0,7) (D) || Number of cases where emergency legal aid will be used D x 56% (E) || Legal aid at police station for persons at large (per case) (F) || Total cost of the measure (G) Austria || 8,920,405 * || 60,726 || 17,853 || 9,998 || 184 || 1,839,619 Belgium || 14,711,665* || 189,716* || 55,777 || 31,235 || 96 || 2,998,552 Bulgaria || 3,094,184 || 118,262 || 34,769 || 19,471 || 25 || 486,766 Croatia || 191,793* || 116,214 || 34,167 || 19,133 || 66 || 1,262,806 Cyprus || 194,090* || 117,495 || 34,544 || 19,344 || 61 || 1,180,007 Czech Republic || 21,474,461 || 97,675 || 28,716 || 16,081 || 46 || 739,736 England & Wales || 1,344,000,000 || 944,142* || 277,578 || 155,443 || 345 || Estonia || 2,491,687* || 48,359(a) || 14,218 || 7,962 || 107 || 851,915 Finland || 28,167,147* || 59,683(a) || 17,547 || 9,826 || 184 || 1,808,022 France || 119,010,621 || 1,061,097 || 311,963 || 174,699 || 197 || 34,415,705 Germany || 85,822,785 || 1,181,995 || 347,507 || 194,604 || 184 || 35,807,073 Greece || 1,212,012* || 195,929* || 57,603 || 32,258 || 107 || 3,451,580 Hungary || 254,684* || 269,691 || 79,289 || 44,402 || 107 || 4,751,006 Ireland || 54,967,000 || 77,625* || 22,822 || 12,780 || 276 || 3,527,331 Italy || 87,080,432 || 1,607,646 || 472,648 || 264,683 || 107 || 28,321,064 Latvia || 770,366 || 9,959 || 2,928 || 1,640 || 184 || 301,696 Lithuania || 3,263,613* || 81,277(a) || 23,895 || 13,381 || 46 || 615,546 Luxembourg || 1,454,414* || 14,579 || 4,286 || 2,400 || 107 || 256,831 Malta || 71,019* || 19,613 || 5,766 || 3,229 || 61 || 196,974 Netherlands || 102,000,000 || 441,911 || 129,922 || 72,756 || 145 || 10,549,653 Poland || 19,420,734* || 1,111,772 || 326,861 || 183,042 || 46 || 8,419,939 Portugal || 25,035,920* || 115,466 || 33,947 || 19,010 || 107 || 2,034,104 Romania || 7,485,586 || 171,480 || 50,415 || 28,232 || 46 || 1,298,693 Scotland || 72,720,690* || 152,522 || 44,841 || 25,111 || 276 || 6,930,697 Slovakia || 1,134,444* || 41,189 || 12,110 || 6,781 || 46 || 311,942 Slovenia || 2,828,514* || 90,205 || 26,520 || 14,851 || 107 || 1,589,095 Spain || 107,750,629* || 1,336,505 || 392,932 || 220,042 || 18 || 3,960,759 Sweden || 130,470,000(a) || 91,000(a) || 26,754 || 14,982 || 138 || 2,067,549 Total || 2,245,998,895 || - || - || || || 159,974,662 Extra cost of policy option 4: 160
million The cost of option 4 is off-set by the
recovery of the costs from suspected and accused persons that do not fulfilling
the eligibility criteria. If it is found, in the subsequent means and or merits
test is found not eligible for legal aid, the Member State will have a right to
recover the costs of emergency legal aid from the individual. The methods for
recovery, and thus how effectively this is done, will be up to the Member
States domestic legislation. The following calculations are in line with those
set out in Option 3. Thus, the recovery of emergency legal aid
cost is calculated (i) based on the cost of emergency
defence for all persons interviewed at police station
(Column G of Table 6), as well as according to three scenarii of the share of
cases receiving legal aid (current situation, 15% and 20%)[159]. In the cases that
do not qualify for legal aid, we however assume that the Member State will
ultimately not be able to recover all the costs in practice. Therefore, there
are three scenarii, based on the rate of successful recover for the Member
States. Assuming that 25% of emergency legal aid
cases will be recovered, on the basis of 15% of cases receiving legal aid under
Option 4, the overall total amount of emergency legal aid that would be
recovered once the means and/or merits test are applied throughout the EU would
be an estimated €12.4 million. By deducting this figure from the total amount
spent on legal aid throughout the EU under Option 4, the
total spent on this measure would therefore be between (€192 million - €12
million) = €180 million and (€222 million - €12 million) = €210 million. There is however no fall in pre-trial
detention as the persons are at large. Table
7 Recovery of emergency legal aid under Option 4 EU jurisdiction (A) || Share of cases receiving legal aid (B) || Cost of emergency defence for all persons interviewed at police station (C) || Costs recovered if 75% of non-eligible suspects ultimately repay the emergency legal aid under Option 4 || Costs recovered if 50% of non-eligible suspects ultimately repay the emergency legal aid under Option 4 || Costs recovered if 25% of non-eligible suspects ultimately repay the emergency legal aid under Option 4 Current share of suspects / accuseds granted legal aid || 15% of suspects / accuseds are granted legal aid || 20% of suspects / accuseds are granted legal aid || Current share of suspects / accuseds granted legal aid || 15% of suspects / accuseds are granted legal aid || 20% of suspects / accuseds are granted legal aid || Current share of suspects / accuseds granted legal aid || 15% of suspects / accuseds are granted legal aid || 20% of suspects / accuseds are granted legal aid Austria || 16%(a) || 1,839,619 || 1,165,552 || - || 932,442 || 777,035 || - || 621,628 || 388,517 || - || 310,814 || Belgium || 20%* || 2,998,552 || 1,789,984 || - || - || 1,193,323 || - || - || 596,661 || - || - || Bulgaria || 28%(b) || 486,766 || 263,821 || - || - || 175,881 || - || - || 87,940 || - || - || Croatia || 13%(c) || 1,262,806 || 823,816 || 700,244 || 659,053 || 549,211 || 466,829 || 439,368 || 274,605 || 233,415 || 219,684 || Cyprus || 4%(c) || 1,180,007 || 852,262 || 724,423 || 681,810 || 568,175 || 482,949 || 454,540 || 284,087 || 241,474 || 227,270 || Czech Republic || 13%(c) || 739,736 || 441,585 || - || - || 294,390 || - || - || 147,195 || - || - || England & Wales || 59%(d) || || - || - || - || - || - || - || - || - || - || Estonia || 67%(e) || 851,915 || 212,164 || - || - || 141,443 || - || - || 70,721 || - || - || Finland || 56%(e) || 1,808,022 || 600,521 || - || - || 400,347 || - || - || 200,174 || - || - || France || 37%(b) || 34,415,705 || 16,224,589 || - || - || 10,816,393 || - || - || 5,408,196 || - || - || Germany || 22%(c) || 35,807,073 || 21,515,810 || - || 17,212,648 || 14,343,873 || - || 11,475,099 || 7,171,937 || - || 5,737,549 || Greece || 20%* || 3,451,580 || 2,060,419 || - || - || 1,373,613 || - || - || 686,806 || - || - || Hungary || 0%(b) || 4,751,006 || 3,559,608 || 3,025,667 || 2,847,686 || 2,373,072 || 2,017,111 || 1,898,458 || 1,186,536 || 1,008,556 || 949,229 || Ireland || 71%(d) || 3,527,331 || 757,031 || - || - || 504,687 || - || - || 252,344 || - || - || Italy || 6%(b) || 28,321,064 || 19,878,934 || 16,897,094 || 15,903,147 || 13,252,622 || 11,264,729 || 10,602,098 || 6,626,311 || 5,632,365 || 5,301,049 || Latvia || 13%(c) || 301,696 || 196,817 || 167,294 || 157,454 || 131,211 || 111,530 || 104,969 || 65,606 || 55,765 || 52,485 || Lithuania || 42%(f) || 615,546 || 266,822 || - || - || 177,881 || - || - || 88,941 || - || - || Luxembourg || 20%(c) || 256,831 || 153,315 || - || - || 102,210 || - || - || 51,105 || - || - || Malta || 13%(c) || 196,974 || 128,500 || 109,225 || 102,800 || 85,667 || 72,817 || 68,533 || 42,833 || 36,408 || 34,267 || Netherlands || 13%(c) || 10,549,653 || 6,882,269 || 5,849,928 || 5,505,815 || 4,588,179 || 3,899,952 || 3,670,543 || 2,294,090 || 1,949,976 || 1,835,272 || Poland || 13%(c) || 8,419,939 || 5,492,909 || 4,668,972 || 4,394,327 || 3,661,939 || 3,112,648 || 2,929,551 || 1,830,970 || 1,556,324 || 1,464,776 || Portugal || 73%(c) || 2,034,104 || 393,656 || - || - || 262,437 || - || - || 131,219 || - || - || Romania || 15%(c) || 1,298,693 || 820,253 || - || 656,202 || 546,835 || - || 437,468 || 273,418 || - || 218,734 || Scotland || 13%(c) || 6,930,697 || 4,521,374 || 3,843,167 || 3,617,099 || 3,014,249 || 2,562,112 || 2,411,399 || 1,507,125 || 1,281,056 || 1,205,700 || Slovakia || 13%(c) || 311,942 || 203,502 || 172,976 || 162,801 || 135,668 || 115,318 || 108,534 || 67,834 || 57,659 || 54,267 || Slovenia || 2%(b) || 1,589,095 || 1,173,376 || 997,370 || 938,701 || 782,251 || 664,913 || 625,801 || 391,125 || 332,457 || 312,900 || Spain || 23%(b) || 3,960,759 || 2,119,298 || - || - || 1,412,866 || - || - || 706,433 || - || - || Sweden || 59%(g) || 2,067,549 || 635,771 || - || - || 423,848 || - || - || 211,924 || - || - || Total cost savings except E&W || || 159,974,662 || 93,133,957 || 37,156,361 || 53,771,984 || 62,089,304 || 24,770,907 || 35,847,989 || 31,044,652 || 12,385,454 || 17,923,995 || Conclusion policy option 4: The total cost of this option would
therefore amount to: Cost of introducing emergency legal under
Option 3: €52 – €82 million Cost of additional cases receiving legal
aid €160 million MINUS Amount of emergency legal aid recovered
under Option 4 - €12 million Total cost of the option: €180
– 210 million Eligibility criteria for legal aid Option 3: The main issue
when assessing the financial impact of the different policy options on means
and merits tests is that in the absence of a quantitative threshold of income
or wealth, it is not possible to exactly define the extra costs incurred
following the introduction of the policy option, which is qualitative. For each
of the three type of jurisdictions (those with a means test, with a merits test
and with both a means and merits test), the following sub-sections explain the
reasoning behind the selection of the hypotheses used to calculate the
financial impacts of the options. The figures and data available do not make
it possible to develop a detailed understanding of the exact impact of any
measure on who is entitled to receive legal aid. For jurisdictions with a
merits test, there are no detailed figures on the number of criminal cases
detailed by the sanction that can be imposed. To take the case of Germany,
while we know that currently, with suspects under suspicion of having committed
a crime punishable by one year imprisonment receiving legal aid, 20% of
criminal cases receive legal aid. There is no way of understanding how this
share would change if the threshold was changed, for instance lowered to 6
month. In order to be able to calculate such impacts, detailed data on the
number of criminal cases by potential custodial sentence would be necessary.
These data do not exist. In order to provide an indication of the
financial impacts of the policy option, we have therefore calculated the share
of criminal cases receiving legal aid and identified Member States whose
systems are closest to the policy option. The extent of differences in the provision of legal aid in the
Member States is reflected in the financial impacts that any measure would
have. There is no detailed data on the difference
between the legal aid threshold and the circumstances of those suspect and
accused persons who fail to qualify at present. It is therefore not possible
to provide precise statistics on the costs of increasing the threshold. In order to provide some data, we have calculated the share of
criminal cases where the suspected or accused person has benefited from legal
aid (these vary between 0.1% and 73%) either based on means or merits tests,
based on data from the CEPEJ report 2012, figures from the Ministries of
Justice and the number of crimes from the Euro Crime Statistics[160]. We have then developed scenarios illustrating a situation (where
15%, 20% and 37% of accused/suspect persons were to be covered by legal aid) as
shown in the tables below. At the bottom of the spectrum, a 15% “target” would
assume an effort from the Member States where legal aid is most problematic.
On the other hand, 37% of criminal cases in France receive legal aid. France
was seen to have a more adequate system and includes some of the aspects of
quality control, and gradual legal aid which were identified as good practices.
The middle figure (20%) provides an indication of a system similar to that in
place in Belgium where 20% of criminal cases receive legal aid. The system of
legal aid in Belgium is seen as adequate, with a number of stakeholders emphasising
the low level of remuneration and the fact that because of the remuneration
system, there is a de facto cap on legal aid cases. 20% is also similar to the
situation in Germany, the Czech Republic and Luxembourg. Column I - Number of criminal cases
- based on figures from the Ministries of Justice, the European Sourcebook of Crime
and Criminal Justice Statistics – 2010. Where no data was
available, we have extrapolated the data based on the population of the Member
States.[161] Column II - Number of criminal legal
aid cases (per annum) based
on figures from the MOJs, the CEPEJ report or an extrapolation of the data
based on the share of criminal legal aid cases in all legal aid cases for other
member States where the data is available. Column III - Total amount spent on Legal Aid for criminal proceedings – From the CEPEJ report, Ministries of justice
or extrapolations based on the average share of the amount spent on criminal
legal aid out of the total amount spent on legal aid for the Member States
where those figures are available.[162]
Column IV - Average spent per case on
criminal legal aid cases – calculated by dividing the total amount spent on
criminal legal aid (Column III) by the number of criminal legal aid cases
(Column II) Column V – Share of criminal cases receiving legal aid - Share of criminal cases where the
suspected or accused person has benefited from legal aid (these vary between
0.1% and 67%) calculated by dividing the number of criminal legal aid cases
(Column II) by the number of criminal cases (Column I) Calculation
for countries with means tests only (BE, HR, CZ, FR, LT, LV, LU, MT, PL, PT,
SK, SI, ES) Table 8: Cost impacts of widening the
number of suspect/accused persons entitled to legal aid in jurisdictions where
only means tests are applied Means || Number of criminal cases (I) || Number of criminal legal aid cases (II) || Total amount spent on Legal Aid for criminal proceedings (III) || Average spent per case on criminal LA (IV) (III/II) || Share of criminal cases receiving legal aid (V = II/I) || 15% scenario || 20% scenario || 37% scenario Total number of cases covered by Legal Aid || New cases covered || Extra cost || Total number of cases covered by LA || New cases covered || Extra cost || Total number of cases covered by LA || New cases covered || Extra cost Belgium || 189,716 * || 38,715* || 14,711,665 * || 380 * || 20% || 28,457 || - || - || 37,943 || || - || 70,195 || 31,480 || 11,962,466 Croatia || 116,214* || 15,128* || 191,793* || 13* || 13% || 17,432 || 2,304 || 29,210 || 23,243 || 8,115 || 102,878 || 42,999 || 27,871 || 353,348 Czech Republic || 97,675(d) || 12,715* || 21,474,461 || 810(g) || 20% || 14,651 || - || - || 19,535 || - || - || 36,140 || 16,207 || 13,126,587 France || 1,061,097(d) || 394,120 (d) || 119,010,621 || 302 (b) || 37% || 159,165 || - || - || 212,219 || - || - || 392,606 || - || - Latvia || 9,959 (d) || 1,296 * || 770,366 || 594(a) || 13% || 1,494 || 197 || 117,327 || 1,992 || 695 || 413,225 || 3,685 || 2,388 || 1,419,277 Lithuania || 81,277(e) || 34,302(d) || 3,263,613* || 95(c) || 42% || 12,192 || - || - || 16,255 || - || - || 30,072 || - || - Luxembourg || 14,579(d) || 2,975* || 1,454,414* || 489* || 20% || 2,187 || - || - || 2,916 || || - || 5,394 || 2,419 || 1,182,624 Malta || 19,613 (d) || 2.553* || 71,019* || 28 * || 13% || 2,942 || 389 || 10,816 || 3,923 || 1,369 || 38,095 || 7,257 || 4,704 || 130,841 Poland || 1,111,772(d) || 144,724* || 19,420,734* || 134* || 13% || 166,766 || 22,042 || 2,957,786 || 222,354 || 77,630 || 10,417,292 || 411,356 || 266,631 || 35,779,615 Portugal || 115,466 (d) || 85,672* || 25,035,920* || 292* || 74% || 17,320 || - || - || 23,093 || - || - || 42,722 || - || - Slovakia || 41,189 (d) || 5,362* || 1,134,444* || 212* || 13% || 6,178 || 817 || 172,776 || 8,238 || 2,876 || 608,516 || 15,240 || 9,878 || 2,090,032 Slovenia || 90,205 (d) || 1,396(d) || 2,828,514* || 607 (g) || 2% || 13,531 || 12,135 || 7,361,014 || 18,041 || 16,645 || 10,096,959 || 33,376 || 31,980 || 19,399,174 Spain || 1,336,505 (d) || 383,000(d) || 107,750,629* || 281 (f) || 29% || 200,476 || - || - || 267,301 || - || - || 494,507 || 111,507 || 31,370,583 || 4,285,267 || 1,121,958 || 317,118,193 || || || 642,790 || 37,883 || 10,648,929 || 857,053 || 107,331 || 21,676,965 || 1,585,549 || 505,066 || 116,814,547 *-
extrapolation (see explanations in previous tables) (a)- Legal aid
expenditure on criminal proceedings (CEPEJ), number of criminal legal aid cases
(extrapolation); (b) Legal aid expenditure on criminal
proceedings (CEPEJ), number of criminal legal aid cases (CEPEJ); (c) Legal
aid expenditure on criminal proceedings (extrapolation), number of criminal
legal aid cases (CEPEJ); (d) CEPEJ / Eurocrime Statistics; (e) figures
provided by the MoJ (f)- Legal aid expenditure
on criminal proceedings (MoJ), number of criminal legal aid cases (MoJ); (g)-
In the case of Slovenia and the Czech Republic, method (c) provided an
unlikely high amount per case, which could have been due to a specifically
expensive case; consequently, we have calculated a cost per case by using the
total amount spent on legal aid and the total number of legal aid cases. In the
case of Croatia, the number of criminal cases has been calculated using a
weighted average number of criminal cases per 1,000 inhabitants (where
available). While data on the number of criminal cases was available for
Croatia, the extremely high number of cases of misdemeanours and /or minor
offences seemed to indicate a difference with other reporting countries in the
definition of those cases. Merits tests
only (DE, SE) In the case of
jurisdictions where a merits test only is in place, one could assume that the
system would be roughly similar to what is in place in Germany. We have also
provided figures for the 15% and 20% case scenarios to provide a means of
comparison with jurisdictions with other types of legal aid systems. Due to the
qualitative nature of the policy option, this estimation of the financial
impacts only provides a ball-park figure. Table 9 - Costs for Member States with a merits test only Means || Number of criminal cases (I) || Number of criminal legal aid cases (II) || Total amount spent on Legal Aid for criminal proceedings (III) || Average spent per case on criminal LA (IV) || Share of criminal cases receiving legal aid (V = II/I) || 15% scenario || 20% scenario Total number of cases covered by LA || New cases covered || Extra cost || Total number of cases covered by LA || New cases covered || Extra cost Germany || 1,181,995 (d) || 235,010 * || 85,822,785 || 365 * || 20% || 177,299 || - || - || 235,010 || || - Sweden || 91,000 (e) || 53,690 (e) || 130,470,000 || 2,430 (e) || 59% || 13,650 || - || - || 18,200 || - || - Total || || || || || || 216,409 || - || - || 254,599 || - || - (a)- Legal aid expenditure on
criminal proceedings (CEPEJ), number of criminal legal aid cases
(extrapolation); (b) Legal aid expenditure on criminal
proceedings (CEPEJ), number of criminal legal aid cases (CEPEJ); (c) Legal
aid expenditure on criminal proceedings (extrapolation), number of criminal
legal aid cases (CEPEJ); (d) CEaPEJ / Eurocrime Statistics; (e) figures provided by the
Ministries of Justice; *- extrapolation Means and
merits tests (AT, BG, CY, E&W, FI, EL, HU, IE, IT, NL, RO, SC) In the case of
jurisdictions where a merits test only is in place, one could assume that the
option could seek to establish systems of legal aid where between 15% and 20%
of criminal cases would be granted legal aid. In this model, we have also added
a 37% option reflecting the situation in France. Due to the qualitative nature
of the policy option, this estimation of the financial impacts only provides a
ball-park figure. Table 10 – Costs for Member States applying a means and a merits
test || Number of criminal cases (I) || Number of criminal legal aid cases (II) || Total amount spent on Legal Aid for criminal proceedings (III) || Average spent per case on criminal LA (IV) || Share of criminal cases receiving legal aid (V = II/I) || 15% scenario || 20% scenario || 37% scenario Total number of cases covered by LA || New cases covered || Extra cost || Total number of cases covered by LA || New cases covered || Extra cost || Total number of cases covered by LA || New cases covered || Extra cost Austria || 60,726 (d) || 9,426 (e) || 8,920,405 * || 946 (c) || 16% || 9,109 || - || - || 12,145 || 2,719 || 2,573,347 || 22,469 || 13,043 || 12,343,035 Bulgaria || 118,262 (d) || 32,800 (d) || 3,094,184 (d) || 94 (b) || 28% || 17,739 || - || - || 23,652 || - || - || 43,757 || 10,957 || 1,029,952 Cyprus || 117,495 (d) || 4,347 * || 194,090 * || 47 (c) || 4% || 17,624 || 13,277 || 592,814 || 23,499 || 19,152 || 905,913 || 43,473 || 39,126 || 1,746,940 Greece || 195,929 || 39,983 || 1,212,012 || 32 || 20% || 29,389 || - || - || 39,186 || || || 72,494 || 32,511 || 985,520 Finland || 59,683 (e) || 33,252 (e) || 28,167,147 * || 847 (f) || 56% || 8,952 || - || - || 11,937 || - || - || 22,083 || - || - Hungary || 269,691 (d) || 276 (d) || 254,684 * || 923 (c) || 0.1% || 40,454 || 40,178 || 37,074,727 || 53,938 || 53,662 || 49,517,864 || 99,786 || 99,510 || 91,824,530 Ireland || 77,625 * || 55,412 (d) || 54,967,000 (d) || 992 (a) || 71% || 11,644 || - || - || 15,525 || - || - || 28,721 || - || - Italy || 1,607,646 (d) || 103,075 (d) || 87,080,432 (d) || 845(b) || 6% || 241,147 || 138,072 || 116,670,756 || 321,529 || 218,454 || 184,593,799 || 594,829 || 491,754 || 415,532,147 Netherlands || 441,911 (d) || 57,525 * || 102,000,000 (d) || 791 (b) || 13% || 66,287 || 8,761 || 6,930,074 || 88,382 || 30,857 || 24,407,654 || 163,507 || 105,982 || 83,831,427 Romania || 171,480 (d) || 27,071 * || 7,485,586 (d) || 282 (b) || 15% || 25,722 || - || - || 34,296 || 7,225 || 1,997,704 || 63,448 || 36,376 || 10,058,500 UK || 1,096,664 || 580,854 || 1,416,720,690 || 3,070 || 53% || 164,500 || - || - || 219,333 || - || - || 405,766 || - || - Total || 4,021,183 || 904,039 || 1,708,884,219 || || || 632,567 || 200,288 || 161,268,371 || 804,237 || 332,069 || 263,945,483 || 1,487,838 || 796,747 || 616,366,532 (a)- Legal aid expenditure on criminal
proceedings (CEPEJ), number of criminal legal aid cases (extrapolation); (b) Legal aid expenditure on
criminal proceedings (CEPEJ), number of criminal legal aid cases (CEPEJ); (c) Legal aid expenditure on
criminal proceedings (extrapolation), number of criminal legal aid cases
(CEPEJ);(d) CEPEJ; (e) figures provided
by the Ministries of Justice; (f) Legal aid expenditure on criminal
proceedings (extrapolation), number of criminal legal aid cases (Ministries of Justice) *- extrapolation; # UK figures are divided between England
& Wales and Scotland, with figures from E&W provided by CEPEJ and Euro
Crime Statistics and Scotland, the result of extrapolations. As shown in the
tables above, any legislative intervention would have varying impacts on the
different Member States, with an expected larger burden on those jurisdictions
where the provision of legal aid was seen by stakeholders to be less adequate
(mainly Italy and Hungary) Overall, due to
the flexibility Member States will have to transpose a Directive or implementing
a recommendation it is impossible to provide a detailed breakdown of the
financial impacts of the measure on who is entitled to legal aid. It is
expected however that the costs will be significant, especially in those Member
States where the provision of legal aid in not adequate. Based on a
scenario where between 15%-20% of criminal cases are to be granted legal aid
seen the raised standard under policy option 3, no matter what eligibility
system they apply, the financial impacts would be broken down as follows: Estimated cost
for jurisdictions with only a means test: between €11 million- €22 million Estimated cost
for jurisdictions applying only a merits test: No costs Estimated cost
for jurisdictions applying both a means and a merits test: €161 million -
€264 million. The figures
above are in line with the cost of bringing national
legislation into line with the financial projections had been made in three
Member States in connection with the cost of bringing national legislation into
line with Salduz. These were as follows: France: 80 million euros; Netherlands:
52 million euros. However, those costs also include training,
infrastructure etc. which are not covered by this option. Based on the
scenarios explained above, we estimate the costs of the measure with regard
to who is entitled to legal aid and to reach a situation where between 15%-20%
of criminal cases are granted legal aid to be in a range between € 172 million
and €286 million. However, the
costs expected to be incurred as a result of the increased share of
suspect/accused persons entitled to legal aid should be seen as the cost of
compliance to ECHR standards rather than extra costs brought about by the
preferred option and might be considerably smaller. Furthermore,
the total impact reflects the costs that would be borne by a selected number of
Member States (Italy €117 - €185 million, and Hungary €37 million - €50
million). Total cost for policy option 3 on means and merits test on the basis
of reaching a situation where between 15%-20% of criminal cases are granted
legal aid: in a range between €172 million and €286 million Option 4: This
option would involve setting quantitative means test and a prescriptive merits
test Means tests
only (BE, HR, CZ, FR, LT, LV, LU, MT, PL, PT, SK, SI, ES) In order to
calculate the costs of Option 4 for those member States with means tests only,
we have assumed that the decision would be for suspects / accused earning under
the minimum wage to be eligible for legal aid. In those Member States where
minimum wages do not exists, we have taken an average of the minimum wage as a
share of the average wage for all Member States where it is available (70%) and
applied this share to the average wage. Table 11 - Minimum and average wage
in the EU (euros) || Minimum wage (monthly)(a) || Minimum wage annually(a) || average wage annually (a) || Minimum wage as % of average wage || Calculated threshold Austria || || || 25,349.63 || n/a || 17158.2 Belgium || 1443.54 || 17322.48 || 26,540.91 || 65% || 17,322.48 Bulgaria || 138.05 || 1656.6 || 2,275.63 || 73% || 1,656.60 Croatia || || || 8717.16 || n/a || 5900.314 Cyprus || || || 21216 || n/a || 14360.3 Czech Republic || 310.23 || 3722.76 || 7,914.69 || 47% || 3,722.76 Denmark || || || 25,692.58 || n/a || 17390.33 England and Wales || 1201.96 || 14423.52 || 21,354.13 || 68% || 14,423.52 Estonia || 290 || 3480 || 6,663.55 || 52% || 3,480.00 Finland || || || 25,385.06 || n/a || 17182.18 France || 1398.37 || 16780.44 || 21,926.16 || 77% || 16,780.44 Germany || || || 26,252.91 || n/a || 17769.6 Greece || 683.76 || 8205.12 || 10,110.60 || 81% || 8,205.12 Hungary || 295.63 || 3547.56 || 6,034.92 || 59% || 3,547.56 Ireland* || || || 17,816.51 || || 12059.32 Italy || || || 19,171.74 || n/a || 12976.62 Latvia || 285.92 || 3431.04 || 5,095.70 || 67% || 3,431.04 Lithuania || 231.7 || 2780.4 || 4,439.13 || 63% || 2,780.40 Luxembourg || 1801.49 || 21617.88 || 28,016.00 || 77% || 21,617.88 Malta || 679.87 || 8158.44 || 9,651.90 || 85% || 8,158.44 Netherlands || 1446.6 || 17359.2 || 24,969.61 || 70% || 17,359.20 Poland || 336.47 || 4037.64 || 5,370.04 || 75% || 4,037.64 Portugal || 565.83 || 6789.96 || 10,882.88 || 62% || 6,789.96 Romania || 161.91 || 1942.92 || 3,567.16 || 54% || 1,942.92 Scotland || 1201.96 || 14423.52 || 21,354.13 || 68% || 14,423.52 Slovenia || 763.06 || 9156.72 || 9,908.23 || 92% || 9,156.72 Slovakia || 327 || 3924 || 6,094.20 || 64% || 3,924.00 Spain || 748.3 || 8979.6 || 16,382.09 || 55% || 8,979.60 Sweden || || || 27,319.80 || n/a || 18491.73 Average || || || || 68% || (a)
Eurostat Source: Eurostat *In the case of Ireland we have used an
extrapolation as the data provided by Eurostat places the minimum wage at 98%
of the average wage. Data are available dividing the population of each Member State by
ten equal brackets of income (deciles). This allows the estimation of the
share of the population that would be eligible for legal aid in the different
countries. Table 12 provides the distribution of income in the Member States
by deciles. Each column represents a tenth of the population. As an example,
the 10% of the population in Austria with the lowest income receive earn less
than € 11,503. Table 12– Member States
distribution of income by deciles – 2010 (EUR) || First decile || Second decile || Third decile || Fourth decile || Fifth decile || Sixth decile || Seventh decile || Eighth decile || Ninth decile || Tenth decile Austria || 11,503 || 14,388 || 16,655 || 18,498 || 20,618 || 22,874 || 25,654 || 29,388 || 36,737 || N/A Belgium || 10,446 || 12,809 || 15,191 || 17,223 || 19,464 || 21,815 || 24,479 || 27,878 || 33,340 || N/A Bulgaria || 1,254 || 1,765 || 2,195 || 2,607 || 3,016 || 3,458 || 4,009 || 4,740 || 5,997 || N/A Croatia || 2,448 || 3,385 || 4,210 || 5,029 || 5,722 || 6,540 || 7,507 || 8,889 || 11,675 || N/A Cyprus || 8,813 || 11,140 || 13,262 || 15,103 || 16,981 || 19,162 || 21,768 || 25,417 || 31,862 || N/A Czech Republic || 4,359 || 5,292 || 5,894 || 6,455 || 7,058 || 7,755 || 8,710 || 9,943 || 12,171 || N/A Denmark || 13,967 || 17,619 || 20,287 || 22,991 || 25,668 || 28,313 || 31,255 || 34,962 || 41,077 || N/A UK (E&W) || 8,572 || 10,784 || 12,780 || 14,925 || 17,106 || 19,715 || 23,060 || 27,265 || 34,707 || N/A Estonia || 2,924 || 3,709 || 4,347 || 4,973 || 5,727 || 6,650 || 7,802 || 9,365 || 11,924 || N/A Finland || 12,000 || 14,598 || 17,066 || 19,149 || 21,349 || 23,636 || 26,423 || 29,755 || 35,668 || N/A France || 10,942 || 13,704 || 15,809 || 17,907 || 20,058 || 22,427 || 25,427 || 29,721 || 38,045 || N/A Germany || 9,657 || 12,444 || 14,635 || 16,745 || 18,797 || 21,141 || 24,051 || 28,030 || 34,756 || N/A Greece || 5,500 || 7,148 || 8,853 || 10,333 || 11,963 || 13,908 || 15,822 || 18,602 || 23,333 || N/A Hungary || 2,392 || 2,981 || 3,425 || 3,852 || 4,241 || 4,698 || 5,204 || 5,977 || 7,073 || N/A Ireland || 10,472 || 12,844 || 14,897 || 16,987 || 19,882 || 22,799 || 26,658 || 32,223 || 41,174 || N/A Italy || 7,534 || 9,937 || 11,933 || 13,851 || 15,937 || 18,251 || 20,902 || 24,243 || 30,680 || N/A Latvia || 1,882 || 2,655 || 3,224 || 3,857 || 4,537 || 5,337 || 6,314 || 7,706 || 10,171 || N/A Lithuania || 1,637 || 2,408 || 2,973 || 3,514 || 4,059 || 4,660 || 5,589 || 6,954 || 9,401 || N/A Luxembourg || 17,277 || 21,108 || 24,716 || 28,193 || 32,333 || 36,427 || 41,463 || 48,239 || 58,339 || N/A Malta || 5,599 || 6,809 || 8,082 || 9,189 || 10,458 || 11,909 || 13,456 || 15,722 || 19,402 || N/A Netherlands || 12,077 || 14,505 || 16,497 || 18,364 || 20,292 || 22,568 || 25,313 || 28,893 || 35,494 || N/A Poland || 2,159 || 2,773 || 3,326 || 3,842 || 4,405 || 5,008 || 5,764 || 6,844 || 8,579 || N/A Portugal || 4,181 || 5,475 || 6,436 || 7,500 || 8,678 || 10,043 || 11,624 || 13,875 || 18,975 || N/A Romania || 831 || 1,184 || 1,492 || 1,739 || 2,037 || 2,372 || 2,802 || 3,321 || 4,177 || N/A UK (Scotland) || 8,572 || 10,784 || 12,780 || 14,925 || 17,106 || 19,715 || 23,060 || 27,265 || 34,707 || N/A Slovakia || 3,433 || 4,370 || 4,960 || 5,532 || 6,117 || 6,820 || 7,683 || 8,789 || 10,717 || N/A Slovenia || 6,543 || 8,263 || 9,489 || 10,555 || 11,736 || 12,959 || 14,412 || 16,297 || 19,451 || N/A Spain || 5,288 || 7,658 || 9,459 || 11,200 || 13,030 || 14,900 || 17,540 || 20,696 || 26,474 || N/A Sweden || 10,930 || 13,474 || 15,833 || 17,785 || 19,709 || 21,596 || 23,834 || 27,067 || 31,584 || N/A Source:
Eurostat Consequently,
for those Member States with only a means test, it is
possible to provide an estimate of the share of the population that would be
entitled to legal aid if the threshold was set at the national minimum wage or
68% of the average wage in those Member States where there is no minimum wage[163] in all Member States. This
is shown in the table below where the current share of cases receiving legal
aid is show in the blue boxes and the situation under Option 4, in the grey
ones Table 13: Share of the population currently entitled to legal aid (X
%) and under the means test proposed under Option 4 (4) || Less than 10% || 10%-20% || 20%-30% || 30%-40% || 40%-50% || 50%-60% || 60%-70% || 70%-80% || 80%-90% || Over 90% Slovenia || 2% || || 4 || || || || || || || Poland* || || 13% || || || 4 || || || || || Latvia* || || 13% || || 4 || || || || || || Czech Republic* || 4 || 13% || || || || || || || || Malta || || 13% || || 4 || || || || || || Slovakia || || 13% || || || || || || || || Croatia || || 13% || || || || 4 || || || || Belgium || || || 20% || || 4 || || || || || Luxembourg || || || 20% || || || || || || || Spain || || || 23% || || || || || || || France || || || || 37% || || || || || || Lithuania || || || 4 || || 42% || || || || || Portugal || || || || 4 || || || || 73% || || Source: CSES research *No set threshold Assuming that the
share of the population entitled to legal aid is roughly similar to the share
of criminal cases receiving legal aid, the costs of this option are presented
below. In cases where the current share of the population entitled to legal
aid is higher than that under Option 4 (CZ, FR, LT, PT, SK, ES), no cost will
be incurred (and no savings either as we assume there will be a non-regression
clause). We have not calculated the costs for those Member States where a
higher share of the population is currently entitled to legal aid than it would
be under this option. Table 14: Cost impacts of widening the number of suspect/accused
persons entitled to legal aid in jurisdictions where only means are applied
under option 4 EU jurisdiction || average spent per case on criminal LA || Current share of cases receiving legal aid || Share of cases receiving legal aid under Option 4 || Total number of criminal cases || number of criminal legal aid cases || Option 4 Total number of cases covered by LA || new cases covered || extra cost Belgium || 380 || 20% || 45% || 189,716 || 38,715 || 85,372 || 46,657 || 17,729,845 Croatia || 13 || 13% || 55% || 110,524 || 15,128 || 60,788 || 48,789 || 618,551 Czech Republic || 810 || 13% || 5% || 97,675 || 19,932 || 4,884 || - || - France || 302 || 37% || 35% || 1,061,097 || 394,120 || 371,384 || - || - Latvia || 594 || 13% || 35% || 9,959 || 1,296 || 3,486 || 2,189 || 1,300,918 Lithuania || 95 || 42% || 25% || 81,277 || 34,302 || 20,319 || - || - Luxembourg || 489 || 20% || 25% || 14,579 || 2,975 || 3,645 || 670 || 327,369 Malta || 28 || 13% || 35% || 19,613 || 2,553 || 6,865 || 4,311 || 119,930 Poland || 134 || 13% || 45% || 1,111,772 || 144,724 || 500,297 || 355,573 || 47,714,826 Portugal || 292 || 73% || 35% || 115,466 || 85,672 || 40,413 || - || - Slovakia || 212 || 13% || 5% || 41,189 || 5,362 || 2,059 || - || - Slovenia* || 607 || 2% || 25% || 90,205 || 1,396 || 22,551 || 21,155 || 12,832,905 Spain || 281 || 23% || 25% || 1,336,505 || 383,000 || 334,126 || - || - Total || || || || || 1,129,175 || || || 80,644,343 *In the case of
Slovenia, while the law states that anyone receiving less than twice the
minimum wage is entitled to legal aid, the practice is very different, with an
estimated 2% of the population receiving it. This table shows the cost of
practical implementation compared to the practical situation. Merits tests
only (DE, SE) Assuming the
threshold for legal aid under option 4 is six month imprisonment, changes would
only occur in Germany, this translates into a cost of €169 million. Table 15 - Potential custodial sentences and the merits test Member State || Merits test in relation to the suspected crime – where it is punishable by - Germany || 1 year imprisonment Sweden || 6 month imprisonment Means and
merits tests (AT, BG, CY, FI, EL, HU, IE, IT, NL, RO, UK) Assuming that
the share of the population entitled to legal aid is roughly similar to the
share of criminal cases receiving legal aid, the costs of this option are
presented below. In cases where the current share of the population entitled
to legal aid is higher than that under Option 4 (FI IE), no cost will be
incurred (and no savings either as we assume there will be a non-regression
clause). Furthermore, regardless of the theoretical share of the population
entitled to legal aid based on the means test, we assume that there is a
minimum of 56% of cases covered under this option equivalent to the situation
in Finland. The system in Finland is one where there is both a means and
merits test. The means test is seen a adequate by stakeholders and the merits
test is as follows: four month imprisonment, and people detained because of an
offence. Legal aid is not available for “simple” criminal offences (such as
drink driving). One can thus
assume that if a workable system comparable to what the situation in Finland is
put in place, 56% of cases would be entitled to legal aid. Table 16 - Cost impacts of widening the number of suspect/accused
persons entitled to legal aid in jurisdictions where means and merits tests are
applied under option 4 EU jurisdiction || average spent per case on criminal LA || Share of criminal cases receiving legal aid || Share of cases receiving legal aid under Option 3 || Total number of criminal cases || number of criminal legal aid cases || Option 4 Total number of cases covered by LA || new cases covered || extra cost Austria || 946 || 16% || 56% || 60,726 || 9,426 || 34,007 || 24,581 || 23,262,099 Bulgaria || 94 || 28% || 56% || 118,262 || 32,800 || 66,227 || 33,427 || 3,142,112 Cyprus || 45 || 4% || 56% || 117,495 || 4,347 || 65,797 || 61,450 || 2,743,686 Finland || 847 || 56% || 56% || 59,683 || 33,252 || 33,252 || || Greece || 30 || 20% || 56% || 195,929 || 39,983 || 109,720 || 69,738 || 2,113,983 Hungary || 923 || 0.1% || 56% || 269,691 || 276 || 151,027 || 150,751 || 139,108,452 Ireland || 992 || 71% || 71% || 77,625 || 55,412 || 11,644 || - || - Italy || 845 || 6% || 56% || 1,607,646 || 103,075 || 900,282 || 797,207 || 673,639,712 Netherlands || 791 || 13% || 56% || 441,911 || 57,525 || 247,470 || 189,945 || 150,246,231 Romania || 277 || 16% || 56% || 171,480 || 27,071 || 96,029 || 68,957 || 19,067,625 UK || 3,070 || 53% || 56% || 1,096,664 || 580,854 || 614,132 || 33,277 || 102,160,863 Total || || || || || || || 1,429,332 || 1,115,484,762 Finally, no
changes are expected in Estonia, where neither a means nor a merits test
exists, but where 67% of criminal cases receive legal aid. Overall, the total cost of Option 4, is
therefore estimated to be € 81 million for jurisdictions where only a means
test is applied plus € 169 million for jurisdictions where only a merits test
is applied, plus € 1.155 billion for those Member States where both a means and
merits test is in place, bringing the total cost of this option at € 1.4
billion. Total cost for policy option 4 on a prescriptive means and merits
test, reaching a situation where, under the means test, everyone earning under the minimum wage to be eligible for legal aid
(alternatively, where minimum wages do not exists, we have taken an average of
the minimum wage as a share of the average wage for all Member States where it
is available (70%)). Under the merits test, everyone charged of a crime
with a minimum sentence over (6 month), and that are effectively deprived of
liberty are granted legal aid. Will cost a maximum of €1.4 billion Legal Aid in EAW proceedings Policy
Option 3 Option: Legal aid in EAW proceedings in executing and issuing Member State,
subject to means and or merits test as it is applied in the relevant Member
State 3a) Costs
for Executing Member States The table below
provides data on the number of EAWs per executing state. On the basis that EAW
cases would be available under the existing thresholds for eligibility in the
Member State, and that the costs per case would be equivalent to that of legal
aid provided in the executing states, we have calculated the costs of legal aid
in EAW cases. In the table
below, we have used a cost per case equivalent to that of emergency legal aid.
This has been done because although the nature of legal aid for EAW is possibly
higher than that of emergency legal aid, for the one case (France) for which we
are aware of the remuneration of EAW cases, this was significantly lower than
that of emergency legal aid (€116 against €197). Assuming that EAW proceedings
would be more costly, one can calculate that EAW proceedings costs twice the
emergency legal aid cost and hereby get an upper range of the cost. Example: In the
case of Bulgaria, for instance, 120 EAWs were executed in 2010, on the basis that
the cost of providing legal aid is €24.5, the cost of introducing compulsory
legal aid in executing states would be (120x €24.5=) €2,941. If one instead
assumes that legal aid in an EAW costs the double of the fee of emergency legal
€24.5x2x120=5,880. Table 17: Cost of legal aid in executing Member States, subject to
current means and merits test || Average cost of emergency legal aid case || EAW received – executed (2010) || Share of cases receiving legal aid || Current situation || 15% || 20% Share of cases receiving LA || Number of EAWs receiving legal aid || Cost of legal aid in executing states (EAW x cost of emergency legal aid case ) || Extra cost of introducing legal aid in executing states (EAW x cost of case) || Share of cases receiving LA || Number of EAWs receiving legal aid || Cost of legal aid in executing || Extra cost compared to current situation || Share of cases receiving LA || Number of EAWs receiving legal aid || Cost of legal aid in executing || Extra cost compared to current situation Austria || 184 || 37 || 16% || 16% || 6 || 1,056 || No costs || 16% || 6 || 1,056 || No costs || 20% || 7 || 1,362 || 306 Belgium || 96 || 57 || 20% || 20% || 11 || 1,068 || No costs || 20% || 6 || 1,056 || No costs || 20% || 6 || 1,056 || No costs Bulgaria || 25 || 120 || 28% || 28% || 33 || 816 || 816 || 28% || 11 || 1,068 || || 28% || 11 || 1,068 || Croatia || 66 || n/a || 13% || 13% || n/a || n/a || n/a || 15% || || - || || 20% || || || Cyprus || 61 || 4 || 4% || 4% || 0 || 9 || No costs || 15% || 1 || 37 || 28 || 20% || 1 || 49 || 40 Czech Rep || 46 || 94 || 13% || 13% || 12 || 550 || 550 || 15% || 14 || 649 || 99 || 20% || 19 || 865 || 315 Estonia || 107 || 29 || 67% || 67% || 19 || 2,077 || No costs || 67% || 19 || 2,077 || No costs || 67% || 19 || 2,077 || No costs Finland || 184 || 49 || 56% || 56% || 27 || 5,018 || 5,018 || 56% || 27 || 5,018 || || 56% || 27 || 5,018 || France || 116* || 424 || 37% || 37% || 157 || 18,253 || No costs || 37% || 157 || 18,253 || No costs || 37% || 157 || 18,253 || No costs Germany || 184 || 835 || 20% || 20% || 166 || 30,516 || No costs || 20% || 166 || 30,516 || No costs || 20% || 166 || 30,516 || No costs Greece || 107 || 33 || 20% || 20% || 6 || 694 || No costs || 20% || 6 || 694 || No costs || 20% || 6 || 694 || No costs Hungary || 107 || 231 || 0% || 0% || 0 || 25 || 25 || 15% || 35 || 3,708 || 3,682 || 20% || 46 || 4,943 || 4,918 Ireland || 276 || 16 || 71% || 71% || 11 || 3,149 || No costs || 71% || 11 || 3,149 || No costs || 71% || 11 || 3,149 || No costs Italy || 276 || 57 || 6% || 6% || 4 || 391 || 391 || 15% || 9 || 2,360 || 1,969 || 20% || 11 || 3,146 || 2,755 Latvia || 184 || 48 || 13% || 13% || 6 || 1,123 || 1,123 || 15% || 7 || 1,325 || 201 || 20% || 10 || 1,766 || 643 Lithuania || 46 || 79 || 42% || 42% || 33 || 1,532 || No costs || 42% || 33 || 1,532 || No costs || 42% || 33 || 1,532 || No costs Luxembourg || 107 || 14 || 20% || 20% || 3 || 294 || 294 || 20% || 3 || 294 || || 20% || 3 || 294 || Malta || 61 || 1 || 13% || 13% || 0 || 8 || 8 || 15% || 0 || 9 || 1 || 20% || 0 || 12 || 4 Netherlands || 145 || - || 13% || 13% || 0 || || - || 15% || - || - || - || 20% || - || - || - Poland || 46 || 929 || 13% || 13% || 118 || 5,435 || 5,435 || 15% || 139 || 6,410 || 975 || 20% || 186 || 8,547 || 3,111 Portugal || 107 || 63 || 73% || 73% || 46 || 4,910 || 4,910 || 73% || 46 || 4,910 || || 73% || 46 || 4,910 || Romania || 46 || 855 || 15% || 15% || 132 || 6,076 || 6,076 || 15% || 132 || 6,076 || || 20% || 171 || 7,866 || 1,790 Slovakia || 46 || 164 || 13% || 13% || 21 || 960 || 960 || 15% || 25 || 1,132 || 172 || 20% || 33 || 1,509 || 549 Slovenia || 107 || 4 || 2% || 2% || 0 || 7 || 7 || 15% || 1 || 64 || 58 || 20% || 1 || 86 || 79 Spain || 184 || 97 || 23% || 23% || 22 || 4,119 || 4,119 || 23% || 22 || 4,119 || || 23% || 22 || 4,119 || Sweden || 138 || 65 || 59% || 59% || 38 || 5,304 || No costs || 59% || 38 || 5,304 || No costs || 59% || 38 || 5,304 || No costs UK || 345 || 116 || 53% || 53% || 61 || 21,184 || No costs || 53% || 61 || 21,184 || No costs || 53% || 61 || 21,184 || No costs Total cost for jurisdictions where legal aid is not available || 29,706 (if value is calculated as EAW costing the double emergency defence 59,412) || || || || An extra 7,185 compared to the current situation (14,370 if doubled) || || || || An extra 14,510 compared to the current situation (29,020 if doubled) * In France the remuneration for EAWs
is calculated to be 5 unités de valeurs (€28.18 x 5 = €115.9) Cost for legal aid in executing Member States subject to means and
merits test: in the range of € 29,706-€59,412 if the current applicable means
and merits test apply. If EU action to ensure 20 % of suspects and accused persons are eligible,
the cost would instead be in the range of 44,216-132,648. Total range is between 0.03 million-0.13 million 3b) Cost
for issuing Member States The table below
provides data on the number of EAWs per issuing state that are de facto
executed. Given the limited role of the lawyer in the issuing Member State, the
costs per case would be equivalent to that of emergency legal aid provided in
issuing state. On the basis that only EAWs meeting the eligibility threshold in
the Member State at hand will receive legal aid, we have calculated the costs
of legal aid in EAW cases in the issuing member States. As no Member State
currently provides such aid, it implies extra costs for all Member States
(column E). Table
18: Cost of legal Aid for Issuing Member States (subject to a means and a
merits test) || Average cost of emergency legal aid case (A) || Executed EAWs where the Member State was the issuing jurisdiction (2010)[164] (B) || Current situation || 15% || 20% Share of cases receiving legal aid (C) || Number of cases receiving legal aid (D) (BxC) || Cost of legal aid if the existing means / merits test apply (E) (AxD) || Number of cases receiving legal aid || Cost of legal aid || Extra costs under 15% scenario || Number of cases receiving legal aid || Cost of legal aid || Extra costs under 20% scenario Austria || 184 || 88 || 16% || 14 || 2,513 || No change || 18 || 3,238 || 725 Belgium || 96 || 166 || 20% || 33 || 3,124 || No change || No change Bulgaria || 25 || 84 || 28% || 23 || 582 || No change || No change Croatia || 66 || n/a || 13% || n/a || n/a || || Cyprus || 61 || 9 || 4% || 0 || 19 || 1 || 82 || 63 || 2 || 109.80 || 90.80 Czech Rep || 46 || 166 || 13% || 21 || 972 || 25 || 1,145 || 173 || 33 || 1,527.20 || 555.20 Estonia || 107 || 22 || 67% || 15 || 1,572 || No change || No change Finland || 184 || 35 || 56% || 20 || 3,588 || No change || No change France || 116* || 339 || 37% || 126 || 14,606 || No change || No change Germany || 184 || 630 || 20% || 125 || 23,048 || No change || No change Greece || 107 || 40 || 20% || 8 || 839 || No change || No change Hungary || 107 || 305 || 0% || 0 || 33 || 46 || 4,895 || 4,862 || 61 || 6,527 || 6,494 Ireland || 276 || 10 || 71% || 7 || 1,970 || No change || No change Italy || 276 || 36 || 6% || 2 || 637 || 5 || 1,490 || 853 || 7 || 1,987.20 || 1,350.20 Latvia || 184 || 48 || 13% || 6 || 1,125 || 7 || 1,325 || 200 || 10 || 1,766.40 || 641.40 Lithuania || 46 || 121 || 42% || 51 || 2,349 || No change || No change Luxembourg || 107 || 10 || 20% || 2 || 210 || No change || No change Malta || 61 || 5 || 13% || 1 || 39 || 1 || 46 || 7 || 1 || 61.00 || 22.00 Netherlands || 145 || 159 || 13% || 20 || 2,935 || 24 || 3,458 || 523 || 32 || 4,611.00 || 1,676.00 Poland || 46 || 1,127 || 13% || 143 || 6,601 || 169 || 7,776 || 1,175 || 225 || 10,368.40 || 3,767.40 Portugal || 107 || 25 || 73% || 18 || 1,944 || No change || No change Romania || 46 || 601 || 15% || 93 || 4,275 || No change || 120 || 5,529.20 || 1,254.20 Slovakia || 46 || 108 || 13% || 14 || 633 || 16 || 22 || 993.60 || 360.60 || 994 || 361 Slovenia || 107 || 9 || 2% || 0 || 15 || 1 || 2 || 192.60 || 177.60 || 193 || 178 Spain || 184 || 170 || 23% || 39 || 7,226 || No change || No change Sweden || 184 || 51 || 59% || 30 || 5,537 || No change || No change UK || 345 || 77 || 53% || 41 || 14,079 || No change || No change Total || || || || || 100,472 || || || 7,968 || || || 17,115 * In France the
remuneration for EAWs is calculated to be 5 unités de valeurs (€28.18 x 5 =
€115.9) ** Figures for England
& Wales and Scotland are bundled Source: Ministries of
Justice, FTI and Council of the European Union, “Replies to questionnaire on
quantitative information on the practical operation of the European arrest
warrant” (Years 2006 – 2009) Cost for
legal aid in issuing Member States: €100,472 provided that the current means
and merits test in the member States apply. Would EU
action to raise the eligibility standard to 20 % be taken the cost for issuing
member States would instead be €117,587. Total cost policy option 3: Legal aid in EAW (subject to eligibility criteria in issuing Member
States and executing Member States) Executing Member States: € 0.03 million-0.13 million Issuing Member States: € 0.1-0.12 million Total range of € 0.13 million-0.24 million Policy
Option 4 Legal aid in
Executing Member States – not subject to means and merits test The table below
provides data with regard to EAWs in the executing Member State when it is not
subject to a means and merits test, and thus is granted in all EAW cases
executed. As all Member States (except NL) at present apply a means or a
merits, test, it implies costs in all Member States. The
calculations are made on the same method as described in policy option 3. Table 19: Cost of providing legal aid without eligibility testing in
executing Member States in EAW proceedings || Average cost of emergency legal aid case || EAW received – executed (2010) || Cost of legal aid if all EAWs cases receive legal aid || Current situation Cases receiving legal aid || Cost of existing legal aid in executing states || Extra cost of introducing legal aid in executing states (EAW x cost of case) Austria || 184 || 37 || 6,801 || 6 || 1,056 || 5,745 Belgium || 96 || 57 || 5,450 || 11 || 1,068 || 4,382 Bulgaria || 25 || 120 || 2,941 || 33 || || 2,941 Croatia || 66 || n/a || n/a || n/a || || n/a Cyprus || 61 || 4 || 245 || 0 || 9 || 236 Czech Rep || 46 || 94 || 4,320 || 12 || || 4,320 Estonia || 107 || 29 || 3,109 || 19 || 2,077 || 1,033 Finland || 184 || 49 || 9,007 || 27 || || 9,007 France || 116* || 424 || 49,142 || 157 || 18,253 || 30,889 Germany || 184 || 835 || 153,480 || 166 || 30,516 || 122,965 Greece || 107 || 33 || 3,538 || 6 || 694 || 2,845 Hungary || 107 || 231 || 24,768 || 0 || || 24,768 Ireland || 276 || 16 || 4,411 || 11 || 3,149 || 1,262 Italy || 276 || 57 || 6,102 || 4 || || 6,102 Latvia || 184 || 48 || 8,823 || 6 || || 8,823 Lithuania || 46 || 79 || 3,630 || 33 || 1,532 || 2,098 Luxembourg || 107 || 14 || 1,501 || 3 || || 1,501 Malta || 61 || 1 || 61 || 0 || || 61 Netherlands || 145 || - || 0 || 0 || || 0 Poland || 46 || 929 || 42,690 || 118 || || 42,690 Portugal || 107 || 63 || 6,755 || 46 || || 6,755 Romania || 46 || 855 || 39,289 || 132 || || 39,289 Slovakia || 46 || 164 || 7,536 || 21 || || 7,536 Slovenia || 107 || 4 || 429 || 0 || || 429 Spain || 184 || 97 || 17,829 || 22 || || 17,829 Sweden || 184 || 65 || 8,990 || 38 || 5,304 || 3,686 UK || 345 || 116 || 39,970 || 61 || 21,184 || 18,786 || || 365,977 (if value is calculated as EAW costing the double emergency defence 731,954 * In France the remuneration for EAWs
is calculated to be 5 unités de valeurs (€28.18 x 5 = €115.9) Costs in
executing Member States: Range between €365,977-€731,954 Legal Aid in issuing Member State – not
subject to means and a merits test The table below
provides data on the number of EAWs per issuing state. On the basis that all
EAW cases would require legal aid (in practice, it will be far less), and that
the costs per case would be equivalent to that of emergency legal aid provided
in issuing states, we have calculated the costs of legal aid in EAW cases. In the case of issuing states, our research found that virtually not
Member State provides legal aid before the point of extradition. In those
countries who claimed to provide legal aid when they were issuing states a
discussion with the ministries of justice has shown that this was the case
after the extradition rather than a system of liaison before. As such we have
assumed that no Member State provides legal aid when they are the EAW issuing state.
Table 20 – Cost of providing automatic
legal aid without eligibility testing in Issuing Member States in EAW
proceedings || Average cost of emergency legal aid case (A) || Executed EAWs which the Member State is the issuing jurisdiction (2010)[165] (B) || Cost of introducing legal aid in issuing states (AxB) Austria || 184 || 88 || 16,175 Belgium || 96 || 166 || 15,872 Bulgaria || 25 || 84 || 2,059 Croatia || 66 || n/a || n/a Cyprus || 61 || 9 || 551 Czech Rep || 46 || 166 || 7,628 Estonia || 107 || 22 || 2,359 Finland || 184 || 35 || 6,433 France || 116* || 339 || 39,290 Germany || 184 || 630 || 115,799 Greece || 107 || 40 || 4,289 Hungary || 107 || 305 || 32,703 Ireland || 276 || 10 || 2,757 Italy || 276 || 36 || 3,854 Latvia || 184 || 48 || 8,823 Lithuania || 46 || 121 || 5,560 Luxembourg || 107 || 10 || 1,072 Malta || 61 || 5 || 306 Netherlands || 145 || 159 || 23,013 Poland || 46 || 1,127 || 51,788 Portugal || 107 || 25 || 2,681 Romania || 46 || 601 || 27,617 Slovakia || 46 || 108 || 4,963 Slovenia || 107 || 9 || 965 Spain || 184 || 170 || 31,247 Sweden || 184 || 51 || 7,053 UK || 345 || 77 || 26,532 Total || 409,343 * In France the
remuneration for EAWs is calculated to be 5 unités de valeurs (€28.18 x 5 =
€115.9) ** Figures for England
& Wales and Scotland are bundled Source: Ministries of Justice, FTI and
Council of the European Union, “Replies to questionnaire on quantitative
information on the practical operation of the European arrest warrant” (Years
2006 – 2009) Costs for
issuing Member States: € 409,343 Total cost policy option 4: Legal aid in EAW proceedings in issuing and executing member States
(automatic and not subject to eligibility criteria) In the range of €775,320-€1,141,297 Minimum €365,977 (executing)+€409,343(issuing)꞊ €775,320 Maximum €731,954 (executing)+€409,343(issuing)꞊ €1,141,297 Quality control Option 3 Accreditation
and training: This option
prescribes that certain standards should be achieved including that legal aid
practitioners are competent in providing criminal defence work – this implies
that they will receive training and that accreditation will be carried out. The
standards should be set a Member State level. Member States can require that
legal aid practitioners have followed a specific training, to be accredited and
should provide such training (to be developed by the Member States), or that
they have certain experience in criminal law practice (certain member Staes .
The practical implementation and how to make the accredited lawyers available
(i.e. a register or a list, managed by the bar association, or the legal aid
board as is currently the case in some Member States). The costs
consist on the one hand of offering State-funded training for defence lawyers
and administrative costs of managing the accreditation system. Training
of defence lawyers There are
numbers relating to how many lawyers there are in the Member State (Column A),
but there is no existing data on how many lawyers that practice criminal
defence work – even less on how many of those who practice criminal legal aid
cases. Many lawyers do multi-practice. In most Member States, it is sufficient
to be a qualified lawyer to do legal aid work and no specialisation is
required. In order to have an estimation of how many % of the lawyers that
practice criminal defence law we have used the example of Germany, where there
are numbers on criminal defence practitioners – amounting to 3.300[166]
lawyers out of ca 155,700 lawyers. That means that ca. 2 % of all lawyers do
criminal defence work, and less than this does legal aid work. Assuming that
the training also should reach out to a number of other lawyers that would want
to practice criminal defence, we have based our calculations on an assumption
that training should be made available to 10% of the practicing lawyers, which
will give a maximum cost of the training per Member States. The costs of the
training should be borne by the public administration. The cost of the training
is calculated on the basis of a 3-day-training to receive the certificate. As
the training is offered regionally, no travel or hotel costs would be incurred.
The cost will be incurred under a number of years. The cost for
trainers is the standards cost of €100 / h. Assuming that the training last 24
h, and takes place in small groups of 10 persons, the cost of training per
defence lawyer is €240 (24X100/10). We have not
calculated any loss of income as the training is a part of a lawyer's tasks.
Table 21 – Cost of training of legal aid providers EU jurisdiction || Total number of lawyers in the country (A) || Number of lawyers to train based on 10 % of all lawyers being trained (B) || Cost of training Bx€240 Austria || 7,510 || 751 || 180,240 Belgium || 16,517 || 1,652 || 396,480 Bulgaria || 11,825 || 1,183 || 283,920 Croatia || 4,133 || 413 || 99,120 Cyprus || 2,855 || 286 || 68,640 Czech Republic || 10,158 || 1,026 || 246,240 Estonia || 788 || 79 || 18,960 Finland || 1,893 || 189 || 45,360 France || 51,758 || 5179 || 1,242,960 Germany || 155,679 || 15,568 || 3,736,320 Greece || 41,794 || 4,179 || 1,002,960 Hungary || 12,099 || 1201 || 288,240 Ireland || 8,625 || 863 || 207,120 Italy || 211,962 || 21,196 || 5,087,040 Latvia || 1,360 || 136 || 184,960 Lithuania || 1,660 || 166 || 39,840 Luxembourg || 1,903 || 190 || 45,600 Malta || 1,600 || 160 || 38,400 Netherlands || 16,728 || 1673 || 401,520 Poland || 29,469 || 2947 || 707,280 Portugal || 27,591 || 2759 || 662,160 Romania || 20,620 || 2062 || 494,800 Slovakia || 4,546 || 455 || 109,200 Slovenia || 1,294 || 129 || 30,960 Spain || 125,208 || 12,521 || 3,005,040 Sweden || 5,000 || 500 || 120,000 UK || 175,860 || 17,586 || 4,220,640 Total || || || 22,964,000 The initial
cost of setting up such a system would therefore stand at a maximum of €23
million, but that is provided that the MS currently do not provide for such
training, which is the case in a number of MS (e.g. UK, NL, FR) but we have no
exact figures on this. This cost would
be distributed over a number of years, and in the case the initial training
action runs for 5 years, the EU wide cost would be maximum €4,6 million a year
for 5 years. 6 Member States
already have training schemes in place (ES, UK, IT, NL, PL, SE) but as it is
difficult to assess to what extent those schemes address the need to prepare
lawyers for accreditation, costs have still been calculated for these member
States, but it is possibly that they will be considerable lower than stated. The
continuous professional training for defence lawyers
will only arise after the training and would amount to 1 day to update the
knowledge and share good practices. This would amount to ca 8 million/year in
the whole EU if 10 % of the lawyers are trained. Accreditation
and monitoring Accreditation
schemes can vary depending on how the member States chose to implement the
option. Here costing are based on the basis that a single organisation carries
out accreditation, for example the legal aid broad or the bar association. It
will be left to the Member State to decide how to manage and maintain system of
qualification and accreditation. The monitoring
of the legal The
accreditation scheme and a monitoring scheme, leaving the choice to the Member
State how it should in practice look like would in addition to the costs
detailed above, involve an estimated two full time employees (FTE), either from
the Ministry of Justice, or if the Member State so prefers from the legal aid
board or the bar association. Based on the cost of the wage of an
employee in the “business service” sector, the table below provides the costs
of 2 FTE in each of the MS. Table
22 - Cost of ensuring accreditation and monitoring || Cost of FTE || Cost of 2 FTE Belgium || 43,423 || 86,846 Bulgaria || 4,058 || 8,116 Czech Republic || 19,080 || 38,160 Germany || 28,858 || 57,716 Estonia || 9,712 || 19,424 Ireland || 30,766 || 61,532 Greece || 18,841 || 37,682 Spain || 24,403 || 48,806 France || 34,132 || 68,264 Italy || 23,850 || 47,700 Cyprus || 25,251 || 50,502 Latvia || 8,213 || 16,426 Lithuania || 15,741 || 31,482 Luxembourg || 49,316 || 98,632 Hungary || 15,741 || 31,482 Malta || 20,272 || 40,544 Netherlands || 44,810 || 89,620 Austria || 41,123 || 82,246 Poland || 15,264 || 30,528 Portugal || 18,364 || 36,728 Romania || 5,420 || 10,840 Slovenia || 20,034 || 40,068 Slovakia || 10,691 || 21,382 Finland || 27,189 || 54,378 Sweden || 39,205 || 78,410 United Kingdom || 38,925 || 77,850 Croatia || 14,548 || 29,096 || || 1,294,460 Source: Eurostat However, it
should be noted that a number of Member States have training schemes in place
so the costs would be lower than those provided. Conclusion Training of
defence lawyers: Maximum cost of €4,6 million a year for 5 years. Continuous
professional training: 7,5 million euros Accreditation
and monitoring: €1,294,460
EU wide/year Total cost policy option 3/year: €4.6 million (training) + €1,3 million
(accreditation and monitoring)+7,5 million
(professional training=13.4 million Option 4 Same as
option 3. ANNEX V
Comparative table on costs per Member State: Options 3 and 4 EU jurisdiction || Cost of emergency defence for all persons || Eligibility criteria for legal aid || Legal Aid in EAW proceedings || Quality control (training, accreditation, and monitoring) || Total cost per year || Option 3[167] || Option 4[168] || Option 3 || Option 4 || Option 3 || Option 4 || Option 3 || Option 4 || Option 3 || Option 4 Austria || - || 1,839,619- 1,528,805 || 0 - 2,573,347 || 23,262,099 || 2,513 – 3,544 || 21,920 || 118,294 || 118,294 || 120,807- 2,695,185 || 25,241,932-24,931,118 Belgium || - || 2,998,552 || - || 17,729,845 || 3,124-3,124 || 20,254 || 166,142 || 166,142 || 169,266 || 20,914,793 Bulgaria || - || 486,766 || - || 3,142,112 || 1,398[169] || 5000 || 64,900 || 64,900 || 66,298 || 3,698,778 Croatia || - || 1,029,391- 1,043,122 || 29,210 - 102,878 || 618,551 || - || - || 48,920 || 48,920 || 78,130- 151,798 || 1,696,862-1,710,593 Cyprus || 1,616,339-1,645,818 || 2,554,872- 2,598,555 || 592,814 - 905,913 || 2,743,686 || 110 – 149 || 787 || 64,230 || 64,230 || 2,273,493- 2,616,111 || 5,363,575-5,407,258 Czech Republic || - || 739,736 || - || - || 1,794– 2,392 || 11,948 || 87,408 || 87,408 || 89,202- 89,800 || 839,092 EU jurisdiction || Cost of emergency defence for all persons || Eligibility criteria for legal aid || Legal Aid in EAW proceedings || Quality control (training, accreditation, and monitoring) || Total cost per year || Option 3 || Option 4 || Option 3 || Option 4 || Option 3 || Option 4 || Option 3 || Option 4 || Option 3 || Option 4 Estonia || 1,097,426- 1,097,426 || 1,949,341 || || || 1,572-1,572 || 3,392 || 23,216 || 23,216 || 1,122,214 || 1,975,949 Finland || 1,423,445-1,423,445 || 3,231,467 || - || - || 8,606 || 15,440 || 63,450 || 63,450 || 1,495,501 || 3,310,357 France || - || 34,415,705 || - || - || 14,606 || 70,179 || 316,856 || 316,856 || 331,462 || 34,802,740 Germany || 50,218,785-50,239,700 || 86,025,858- 80,309,224 || - || 169,000,000 || 23,048 || 238,764 || 804,980 || 804,980 || 51,046,813- 51,067,728 || 256,069,602-250,352,968 Greece || 3,156,576- 3,156,576 || 6,608,156 || - || 2,113,983 || 839 || 7,134 || 238,274 || 238,274 || 3,395,689 || 8,967,547 Hungary || 4,083,971- 4,190,542 || 7,826,421- 7,992,319 || 37,074,727 - 49,517,864 || 139,108,452 || 8,602 - 11,470 || 57,471 || 89,130 || 89,130 || 41,256,430 - 53,809,006 || 147,081,474-147,247,372 Ireland || - || 3,527,331 || - || - || 1,970 || 4,019 || 102,956 || 102,956 || 104,926 || 3,634,306 Italy || 8,000,000 || 36,832,263- 37,515,960 || 116,670,756- 184,593,799 || 673,639,712 || 3,850 - 5133 || 9,956 || 1,065,108 || 1,065,108 || 125,883,278- 194,159,985 || 711,547,039-712,230,736 Latvia || - || 245,931- 249,211 || 117,327 - 413,225 || 1,300,918 || 2,649 – 3,532 || 17,646 || 53,418 || 53,418 || 173,394- 470,175 || 1,617,913-1,621,193 EU jurisdiction || Cost of emergency defence for all persons || Eligibility criteria for legal aid || Legal Aid in EAW proceedings || Quality control (training, accreditation, and monitoring) || Total cost per year || Option 3 || Option 4 || Option 3 || Option 4 || Option 3 || Option 4 || Option 3 || Option 4 || Option 3 || Option 4 Lithuania || - || 615,546 || - || - || 2,349 || 7,658 || 39,450 || 39,450 || 41,799 || 662,654 Luxembourg || - || 256,831 || - || 327,369 || 504 || 2,573 || 107,752 || 107,752 || 108,256 || 694,525 Malta || - || 160,566- 162,707 || 10,816 - 38,095 || 119,930 || 55-73 || 367 || 48,224 || 48,224 || 59,095- 86,392 || 329,087-331,228 Netherlands || - || 8,599,677- 8,714,381 || 6,930,074 - 24,407,654 || 150,246,231 || 3,458- 4,61 || 23,013 || 169,924 || 169,924 || 7,103,456- 24,582,189 || 159,038,845-159,153,549 Poland || 8,756,975- 8,966,180 || 15,620,590- 15,921,343 || 2,957,786 - 10,417,292 || 47,714,826 || 14,186 – 18,914 || 94,478 || 171,984 || 171,984 || 11,900,931- 19,574,370 || 63,601,878-63,902,631 Portugal || 2,158,560- 2,158,560 || 4,192,664 || - || - || 6,854 || 9,436 || 169,160 || 169,160 || 2,334,574 || 4,371,260 Romania || - || 1,298,693- 1,079,959 || 0- 1,997,704 || 19,067,625 || 10,351 – 13,395.20 || 66,906 || 109,800 || 109,800 || 120,151- 2,120,899.2 || 20,543,024-20,324,290 Slovakia || - || 254,283- 257,675 || 172,776 - 608,516 || - || 2,758.60 – 2,503 || 12,499 || 43,222 || 43,222 || 218,756.6- 654,241 || 310,004-313,396 EU jurisdiction || Cost of emergency defence for all persons || Eligibility criteria for legal aid || Legal Aid in EAW proceedings || Quality control (training, accreditation, and monitoring) || Total cost per year || Option 3 || Option 4 || Option 3 || Option 4 || Option 3 || Option 4 || Option 3 || Option 4 || Option 3 || Option 4 Slovenia || 2,335,913- 2,375,520 || 3,592,551- 3,651,715 || 7,361,014 - 10,096,959 || 12,832,905 || 272.60 - 279 || 1,394 || 46,260 || 46,260 || 9,743,459.6- 12,519,018 || 16,473,110-16,532,274 Spain || - || 3,960,759 || - || - || 11,345 || 49,076 || 649,814 || 649,814 || 661,159 || 4,659,649 Sweden || - || 2,067,549 || - || - || 5,537-5,537 || 10,739 || 102,410 || 102,410 || 107,947 || 2,180,698 UK || - || 59,277,476 - 59,352,832 || - || 102,160,863 || 14,079-14,079 || 45,318 || 921,978 || 921,978 || 936,057 || 162,405,635-162,480,991 Total Costs per Action || 82,991,554- 83,749,712 || 290,208,594 - 285,428,211 || 171,917,300 – 285,673,246 || 1,365,129,107 || 146,430.20 – 161,828.20 || 807,367 || 5,887,260 || 5,887,260 || 266,942,544- 381,472,046 || 1,662,032,328 -1,657,251,945 ANNEX VI
Legal Aid Spending in the Member States and % of suspected/accused persons
entitled to legal aid Member States || Number of criminal cases (I) || Number of criminal legal aid cases (II) || Total amount spent on Legal Aid for criminal proceedings (III) || Average spent per case on criminal LA (IV) || Share of criminal cases receiving legal aid (IV = II/I) || Merits test, Means test or Means and Merits test Austria || 60,726 (d) || 9,426 (e) || 8,920,405 * || 946 (c) || 16% || Means and Merits test Belgium || 189,716 * || 38,715* || 14,711,665 * || 380 * || 20% || Means test Bulgaria || 118,262 (d) || 32,800 (d) || 3,094,184 (d) || 94 (b) || 28% || Means and Merits test Croatia || 116,214(d) || 15,128* || 191,793* || 13* || 13% || Means test Cyprus || 117,495 (d) || 4.347 * || 194,090 * || 45 (c) || 4% || Means and Merits test Czech Republic || 97,675(d) || 19,932* || 21,474,461 || 810(a) || 20% || Means test Estonia || 48,359(a) || n/a || 2,491,687* || n/a || 67% || Neither a Means test, nor a Merits test Finland || 59,683 (e) || 33,252 (e) || 28,167,147 * || 847 (f) || 56% || Means and Merits test France || 1,061,097(d) || 394,120 (d) || 119,010,621 || 302 (b) || 37% || Means test Germany || 1,181,995 (d) || 235,010 * || 85,822,785 || 365 * || 20% || Merits test Greece || 195,929* || 39,983 || 1,212,012* || 30 || 20% || Means and Merits test Hungary || 269,691 (d) || 276 (d) || 254,684 * || 923 (c) || 0.1% || Means and Merits test Ireland || 77,625 * || 55,412 (d) || 54,967,000 (d) || 992 (a) || 71% || Means and Merits test Italy || 1,607,646 (d) || 103,075 (d) || 87,080,432 (d) || 845(b) || 6% || Means and Merits test Latvia || 9,959 (d) || 1,296 * || 770,366 || 594(a) || 13% || Means test Lithuania || 81,277(e) || 34,302(d) || 3,263,613* || 95(c) || 42% || Means test Luxembourg || 14,579(d) || 2,975* || 1,454,414* || 489* || 20% || Means test Malta || 19,613 (d) || 2,553* || 71,019* || 28 * || 13% || Means test Netherlands || 441,911 (d) || 57,525 * || 102,000,000 (d) || 791 (b) || 13% || Means and Merits test Poland || 1,111,772(d) || 144,724* || 19,420,734* || 134* || 13% || Means test Portugal || 115,466 (d) || 85,672* || 25,035,920* || 292* || 74% || Means test Romania || 171,480 (d) || 27,071 * || 7,485,586 (d) || 277 (b) || 15% || Means and Merits test Slovakia || 41,189 (d) || 5,362* || 1,134,444* || 212* || 13% || Means test Slovenia || 90,205 (d) || 1,396(d) || 2,828,514, * || 607 (c) || 2% || Means test Spain || 1,336,505 (d) || 383,000(d) || 107,750,629 * || 281 (a) || 29% || Means test Sweden || 91,000 (e) || 53,690 (e) || 130,470,000 || 2,430 (e) || 59% || Merits test UK † || 1,096,664 || 580,854 || 1,416,720,690 || 3,070 || 53% || Means and Merits test Denmark[170] || || || || || || Total || 9,823,733 || 2,357,553 || 2,245,998,895 || || || (a)- Legal aid expenditure on criminal proceedings
(CEPEJ), number of criminal legal aid cases (extrapolation); (b) Legal aid expenditure on criminal proceedings
(CEPEJ), number of criminal legal aid cases (CEPEJ); (c) Legal aid expenditure on criminal proceedings
(extrapolation), number of criminal legal aid cases (CEPEJ); (d) CEPEJ / Eurocrime
Statistics; (e) figures provided by
the MoJ (f) Legal aid
expenditure on criminal proceedings (extrapolation), number of criminal legal
aid cases (MoJ) *- extrapolation; † UK figures
are divided between England & Wales and Scotland, with figures from E&W
provided by CEPEJ and Euro Crime Statistics and Scotland, the result of
extrapolations. ANNEX VII
Current standards on eligibility testing in the Member States The vast majority of jurisdictions have a means
test. From the information presented in the country fiches, it appears
that: In 12 Member States (BE, CZ, ES,
FR, LT, LU, LV, MT, PL, PT, SI, SK) and Croatia, the right to legal
aid is solely determined by a means test. However, in some of the
countries there is no means test at the initial stages of a criminal procedure
(mainly those at the police station) for example in E&W as well as the NL
and FR. In eleven Member States (AT, BG, CY, EL,
FI, HU, IE, IT, NL, RO, UK), the right to legal aid is determined by both
a means and a merits test at some, but not necessarily all, procedural
stages. A further variation is that in some Member States, for example, in the
Netherlands, there is no requirement to satisfy a means test for certain
categories of crimes. In three jurisdictions (DE, DK,
SE), there is only a merits and no means test. Finally, in Estonia, there is neither
a means nor a merits test. However, here legal aid is not available during
the pre-trail investigation stage except for certain categories of suspects. As
well as vulnerable suspects these include those suspected of crimes punishable
by life imprisonment, those who have been in pre-trial detention for at least 6
months, and those involved in expedited procedure[171]. To this extent,
therefore, an ‘interests of justice’ test of sorts is used. Although no merits
or means test is needed to qualify for legal aid at trial in the form of
mandatory defence counsel if the accused is found guilty, he or she is liable
to repay the cost of his or her legal defence. Means testing Of the countries which have a means test
the number of population that theoretically fulfil the means test is the
following : Share on the population entitled to legal aid under means test · Less than 10% of the population satisfies the means test for legal aid in Belgium and Luxembourg; · Between 10% and 20% of the population satisfies the means test for legal aid in Greece* and Lithuania; · Between 10% and 40% of the population satisfies the means test for legal aid in France; · Between 20% and 30% of the population satisfies the means test for legal aid in Italy and Finland*; · Between 30% and 40% of the population satisfies the means test for legal aid in Croatia, Malta, Scotland and Slovakia; · Between 40% and 50% of the population satisfies the means test for legal aid in England and Wales*; · Between 50% and 60% of the population satisfies the means test for legal aid in Ireland, the Netherlands* and Portugal; · Between 60% and 70% of the population satisfies the means test for legal aid in Cyprus* and Hungary*; · Between 70% and 80% of the population satisfies the means test for legal aid in Spain; and · Over 90% of the population satisfies the means test for legal aid in Slovenia. Average wages and legal aid threshold in the Member
States (Euros) Member state || Average (net) wage - annual (€) || Income threshold to receive Legal Aid (€) || Legal aid threshold as a share of the average wage Austria || 25,349.63 || N/A || N/A Belgium || 26,540.91 || 10,320 || 39% Bulgaria || 2,275.63 || N/A || N/A Croatia || 8,717 || 4,294 || 49% Cyprus || 15,439.00 || 20,000 || 130% Czech Republic || 7,914.69 || N/A || N/A Denmark || 17,845 || N/A || N/A England & Wales || 21,354.13 || 15,813 || 74% Estonia || 6,663.55 || N/A || N/A Finland || 25,385.06 || 15,600 || 61% France || 21,926.16 || 11,160 || 51% Germany || 26,252.91 || N/A || N/A Greece || 10,110.60 || 5,920 || 59% Hungary || 6,034.92 || 4,752 || 79% Ireland || 17,816.51 || 20,316 || 114% Italy || 19,171.74 || 10,628 || 55% Latvia || 5,095.70 || N/A || N/A Lithuania || 4,439.13 || 1,854 || 42% Luxembourg || 28,016.00 || 15,396 || 55% Malta || 9,651.90 || 8,160 || 85% Netherlands || 24,969.61 || 20,661 || 83% Poland || 5,370.04 || N/A || N/A Portugal || 10,882.88 || 9,336 || 86% Romania || 3,567.16 || N/A || N/A Scotland || 21,354.13 || 14,501 || 68% Slovakia || 6,094.20 || 5,494 || 90% Slovenia || 9,908.23 || 18,313 || 185% Spain || 16,382.09 || 17,952 || 110% Sweden || 27,319.80 || N/A || N/A Source: CSES
research, Eurostat Share of the population satisfying the means test for legal aid
currently[172] || Less than 10% || 10%-20% || 20%-30% || 30%-40% || 40%-50% || 50%-60% || 60%-70% || 70%-80% || 80%-90% || Over 90% Belgium || x || || || || || || || || || Luxembourg || x || || || || || || || || || France* || || x || x || x || || || || || || Greece || || x || || || || || || || || Lithuania || || x || || || || || || || || Finland || || x || X || || || || || || || Italy || || || X || || || || || || || Croatia || || || || X || || || || || || Malta || || || || X || || || || || || Scotland || || || || X || || || || || || Slovakia || || || || X || || || || || || E & W || || || || || X || || || || || Ireland || || || || || || X || || || || Netherlands || || || || || || X || || || || Portugal || || || || || || X || || || || Cyprus || || || || || || || x || || || Hungary || || || || || || || x || || || Spain || || || || || || || || x || || Slovenia || || || || || || || || || || x Austria || No information Bulgaria || No set threshold (case by case decision) Czech Republic || No set threshold Latvia || No set threshold Romania || No set threshold Denmark || NO MEANS TESTS Estonia || NO MEANS TESTS Germany || NO MEANS TESTS Sweden || NO MEANS TESTS Merits testing Potential custodial sentences[173] and the merits
test Member State || Merits test in relation to the suspected crime – where it is punishable by - Denmark || Imprisonment England & Wales || Imprisonment Ireland || Imprisonment Netherlands || Imprisonment Finland || 4 month imprisonment Scotland || 6 month imprisonment Sweden || 6 month imprisonment Cyprus || 1 year imprisonment Germany || 1 year imprisonment Austria || 3 years imprisonment Greece || 5 years imprisonment Hungary || 5 years imprisonment Romania || 5 years imprisonment Bulgaria || 10 years imprisonment Italy || “certain crimes” Source CSES
research ANNEX VIII
Moment at which the Right to Legal Aid arises Time at which the right to legal aid first arises · In two national jurisdictions (E&W and SCOT), the right to legal aid arises as early as when he is questioned by a police officer, not necessarily whilst at a police station (in the street, at home; hospital etc.) and without being detained. · In a group of seven countries (BE, CZ, HU, LT, LU, MT, SE) this right arises prior to the suspect being first “asked questions”, generally at a police station (in some of these states this can be before any formal arrest or charge, for example when a person is giving the police information and answering questions voluntarily). · In four countries, (AT, BG, IE, SK, FR), this right arises when the suspect is arrested or detained at a police station. · In two countries, (DK, LV), this right arises following the first identification as a suspect or after a formal charge or accusation is made. · For 10 Member States this right arises at the point of formal arrest or charge (e.g. before a court). This can be after deprivation of liberty and questioning has taken place. The Member States are: CY, DE, EE, EL, ES, FI, IT, PL, PT, RO. · In Slovenia, this right arises at the pre-trial questioning before the court. CPT Reports –examples of practical deficiencies with providing legal aid at early stages of proceedings · Austria: Under the current criminal legislation, an ex officio lawyer could only be appointed following a court decision, but that, in principle, it was possible for the State to cover, on a subsidiary basis, the costs of the services of a lawyer in the context of police custody if the person concerned was not in the position to pay for them (Ausfallshaftung). However, not one single police officer, let alone any of the detained persons met by the delegation, had been aware of such a possibility.”[174] “A new system of legal telephone counselling free of charge was introduced in mid-2008 (in co-operation with the Austrian Bar Association) through the hotline of the “RechtsanwaltschaftlicheJournaldienst”. However, it is regrettable that many police officers outside Vienna appeared to have received no information and guidance on how to make use of the above-mentioned telephone counselling service. Not surprisingly, in several police establishments visited, not one single detained person had ever availed him/herself of this possibility. According to the Austrian Bar Association, on average, a mere two such calls had been registered per day in the entire country since the introduction of the hotline. Further, the specific information sheet on the legal counselling by the Bar Association, which has been elaborated by the Federal Ministry of Justice, explicitly states that only initial counselling via the telephone is free of charge. Many of those detained persons who had been informed of the existence of the above-mentioned hotline declined to call a lawyer, since they did not have the means to pay for the lawyer to be present during police questioning. · Denmark: “Some detained persons were dissuaded by police officers from exercising their right to a lawyer as a result of the high legal costs associated with it.”[175] · Greece: “The CPT recommended in its 2009 report that the Greek authorities engage with the Greek Bar Association, in order to extend access to legal aid scheme to the stage of police investigation, which is apparently at present not covered.”[176] · Latvia: “Despite the recent introduction of a scheme to ensure that persons who cannot afford legal representation are offered free legal aid, ‘a number of allegations were received that ex officio lawyers [appointed by this scheme] had had no contact with the detained persons until the first court hearing’.”[177] · Poland: “Persons in police custody who were not in a position to pay for legal services were effectively deprived of the right of access to a lawyer.”[178] · Slovak Republic: “In case of lack of financial means, a lawyer is appointed ex officio. However, the majority of persons interviewed by the CPT’s delegation claimed to have been informed of their right to a lawyer only at the time of the first court hearing, when an ex officio counsel was appointed. In very few cases did detained persons have an opportunity to consult a lawyer from the outset of their police detention, let alone request that the lawyer be present during the interrogation or initial questioning.”[179] · Slovenia: “According to Section 4 (4) of the CCP, when a suspect is not able to pay for a lawyer, the police should ensure, if the person so requests, that an ex officio lawyer is appointed if this is in the interests of justice. It appeared in the course of the 2006 visit that indigent persons in police custody generally did not benefit from access to a lawyer before being brought to a judge. The CPT would like to stress that, for as long as there is not an effective system of free legal aid for indigent persons at the stage of police custody, any right of access to a lawyer will remain, in most cases, purely theoretical.”[180] ANNEX IX
Examples of when lack of mutual trust can hinder judicial cooperation Ø
The subject matter of a number of the recent preliminary
references from national courts to the European Court Justice (ECJ) on the
Framework Decision on the European arrest warrant[181] (FD-EAW) are illustrative of
the continuing gaps in mutual trust between Member States that can be closed by
EU common minimum standards of procedural rights as follows: Ø
In
the recent Radu case[182]
(judgment on the 29 January 2013) the Romanian court of appeal demonstrated by
the nature and breadth of its questions to the ECJ that they did not have the
required levels of trust in the EAW system. The wide-ranging questions were
about the compatibility of the arrest of a person and the execution of an EAW
with fair trial rights and rights to liberty in the EU Charter of Fundamental
Rights (the Charter) and in the European Convention on Human Rights (the ECHR)
and about the adequacy and compatibility of transposition of the FD-EAW in both
issuing and executing Member States. The Court ultimately interpreted the
questions in a narrow manner and ruled that judicial authorities cannot refuse
to execute an EAW on the ground that the requested person was not heard in the
issuing Member State before that arrest warrant was issued. However the case
illustrates that in very recent times judicial authorities are questioning the
levels of procedural rights for suspects and accused persons in other Member
States with the potential to lead to considerable delay in the ultimate
decision on judicial cooperation. Ø
The
questions raised by the Spanish constitutional court in the Melloni
case[183]
(judgment 26th February 2013) on the obligations of an executing judicial
authority where there are different standards of protection in respect of In
Absentia trials (despite this issue having been harmonised in respect of EAW
cases in the Framework Decision on In Absentia judgments[184]) shows a lack of trust in the
standards of protection of the presumption of innocence that has the potential
to delay judicial cooperation and did in this case. The ECJ concluded that the
difference in the standard of protection between the issuing and the executing
Member State was not a reason to refuse the surrender as long as certain
minimum standards were respected. As a consequence, the person was surrendered,
but only after a serious delay following several court proceedings. Ø
The
issue of the application of the rule of speciality (which prohibits prosecution
for prior offences other than those in the warrant) has been the subject of a
very recent ECJ case Jeremy F[185]
(judgment on 4 April 2013) and was also the subject of the case of Leymann
and Pustovarov[186]
(judgment on 1 December 2008). In the recent case of Melvin West[187] (judgment
28 June 2012) the issue raised was about consent to onward surrender to another
Member State. In the case of Advocaten voor de Wereld[188] (judgment of 3 May
2007) the ECJ was asked to consider the compatibility of the non-verification
of dual criminality for listed offences with the principle of equality and
non-discrimination. The fact that all of these issues continue to be raised at
ECJ level indicates the distance we still have to travel in terms of achieving
mutual trust. This is because the FD-EAW gave Member States a number of
options, which were largely not availed of, to have a very high level of
judicial cooperation. These included the possibility to dispense with the
requirement of dual criminality altogether (Article 2.4) the possibility to
waive the rule of speciality entirely in dealings with other Member State
(Article 27.1) and the possibility not to require consent for onward surrender
to another Member State (Article 28.1). Ensuring minimum standards of
procedural rights will help to create the conditions for Member States to be
happy to enhance cooperation by availing of these possibilities. The ECJ would
no longer be required to deal with issues such as dual criminality, speciality
and onward surrender as they would not arise where mutual trust is optimum. Ø
It
is clear from the experience with the EAW that lack of mutual trust can result
in complex and long-drawn out investigations into the systems of other MS
because of procedural rights issues raised at first instance and on appeal.
This creates delays that can ultimately prejudice the resolution of cases for
all parties involved, despite the fact that in the vast majority of EAW cases
the ultimate decision (unless an agreed refusal ground applies) is to surrender
the person. A high-profile recent illustration of this scenario is the Swedish-UK
case of Mr. Julian Assange[189]
whose surrender was ultimately confirmed by the UK Supreme Court in
June 2012, a year and a half after his initial arrest in December 2010 in the
UK pursuant to the EAW issued by Sweden. Mr. Assange raised wide-ranging issues
including the legitimacy of the authority that issued the EAW, dual
criminality, whether a decision to prosecute had been taken by the Swedish
authorities and the proportionality of the request. The lack of common minimum
standards of procedural rights can be exploited to lead to challenges that have
the potential to considerably delay judicial co-operation. Ø
It
is the case that in their implementation of the EAW FD, a number of Member
States have chosen to go beyond the EAW-FD in providing for more stringent rules for surrender
of their own citizens, indicating a level of mistrust that the procedural
rights measures will help to address. One example is the case of Klaas
Karel Faber , a former Member of the Waffen SS in the Netherlands, who
was sought by the Netherlands from Germany pursuant to an EAW following his
convicted to life imprisonment for murders. In 2011, a German court refused to
surrender Faber to serve his sentence in the Netherlands on the grounds that
his consent to surrender was required, thus adding an element that is not in
the FD-EAW. Ø
The
case of Gary Mann[190]
shows the effect that a lack of EU minimum procedural safeguards can have on
intra-EU judicial cooperation. The case relates to the execution of a
Portuguese European arrest warrant by UK courts, for the surrender of Gary
Mann, a British citizen, which took more than 14 months (the Framework Decision
on the EAW provides for a sixty-day deadline) and involved five decisions by UK
courts. The main issue raised was inadequate legal advice, since Mann and
eleven other defendants were represented by only one lawyer. In addition, Mann
was unable properly to instruct his lawyer due to the lack of time before the
hearing. Following his arrest, trial and conviction that took place in less
than 48 hours, he was finally sentenced to two years' imprisonment for his role in
a riot at the Euro 2004 tournament. The case clearly shows that the
execution of the EAW will happen much more swiftly if the executing judicial
authority can be confident that there are minimum standards of procedural
safeguards that are enforceable across the EU. Ø
The case of Deborah Dark shows that insufficient
trust in the standards of protection of fair trial rights (lack of notification
of the appeal, no legal representation during the appeal hearing and lack of
information of the conviction, delay) may hinder effective judicial
co-operation. In 1989 Deborah Dark was arrested in France on suspicion of drug
related offenses but the court acquitted her of all charges. In 1990, she was
convicted and sentenced to prison on appeal without herself or her French
lawyer being notified. In 2005, an EAW was issued by the French authorities.
In 2008 and 2009, Ms. Dark was arrested successively in Spain and in UK, and at
the extradition hearing both of the national courts refused to extradite Ms.
Dark to France. In May 2010, France finally agreed to remove the warrant. This
case shows that there work remains to be done on minimum procedural rights to
ensure the effective right of a suspect to fair trial and the essential
confidence of judicial authorities in the systems of other Member States. Ø
The
impact of concerns including those relating to the presumption of innocence in
undermining mutual trust are illustrated by a recent English Appeal court case
of Sofia City Court v Dimintrinka Atanasova-Kalaidzheiva of 2011[191]. The UK
courts refused to execute an EAW at first instance and on appeal on the basis
that they had doubts that a fair trial was possible in this particular case and
were not satisfied about the independence of the investigation and prosecution
process in Bulgaria. Judicial authorities must be confident that the key right
to be presumed innocent that underpins a fair trial is guaranteed. [1] See section 4.1.1 infra for further elaboration of this argument. [2] See also Article 14 of the International Covenant on Civil and
Political Rights and the UN Principles
and Guidelines on Access to Legal aid in Criminal Justice Systems, adopted by
the United Nations General Assembly in December, 2012. [3] Analysis of the future of mutual
recognition in criminal matters in the European Union, by Gisèle Vernimmen-Van
Tiggelen (Call for tenders JLS/D3/2007/03/European Commission), 20 November
2008, para 18. [4] OJ C 115, 4.5.2010, p. 1. [5] OJ C 291, 4.12.2009, p. 1. (Annex I, "the Roadmap") [6] Three measures have already been adopted: Directive 2010/64/EU of
the European Parliament and of the Council on the right to interpretation and
translation in criminal proceedings (OJ l 280, 26.10.2010, p.1); Directive
2012/13/EU of the European Parliament and of the Council on the right to
information in criminal proceedings (OJ L 142, 1.6.2012, p.1), and Directive
2013/48/EU of the European Parliament and of the Council 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, p. 1).The measure on the protection of
vulnerable persons suspected or accused in criminal proceedings, the measure on
legal aid (the part of the third measure not included in the Directive on
Access to a Lawyer) and presumption of innocence are presented as a package
together. As regards the last measure, the Commission published on 14 June 2011
a Green Paper on the application of EU criminal justice legislation in the
field of detention to reflect on ways to strengthen mutual trust and the
application of the principle of mutual recognition in the area of detention, in
accordance with and within the limits of the EU's competence; COM(2011)327
final, published on: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0327:FIN:EN:PDF. [7] Directive 2012/29/EU of 25 October 2012, OJ L 315, 14.11.2012, p.57 [8] As recognised by the Member States, that when adopting the general
approach on Access to a Lawyer Council negotiations made a statement, calling
on the Commission to make a legislative proposal on legal aid. [9] "The practical operation of legal aid in the EU",
Fair Trials International, July 2012, "Compliance of Legal Aid systems
with the European Convention on Human Rights in seven jurisdictions"
covering Bulgaria, Czech Republic, England & Wales, Germany, Greece,
Ireland and Lithuania, Report by Justicia Network, April 2013, Cornerstones on
legal Aid, May 2013, ECBA, CCBE Recommendations on Legal Aid, 2013, http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/EN_Legal_Aid_recomme1_1291033916.pdf
[10] In reply, the Commission made the following Declaration: "Il
est de l'intention de la Commission de présenter, sur base d'une analyse
approfondie des différents systèmes nationaux et de leur impact financier, une
proposition d'instrument juridique concernant l'aide juridictionnelle dans le
courant de 2013, conformément à la feuille de route visant à renforcer les
droits procéduraux des suspects et des personnes poursuivies dans le cadre des
procédures pénales." [11] See interview check list, in CSES Study for the Impact Assessment,
Appendix D1. [12] See the reports of the focus groups in the Appendix E, of the CSES
Report for the Impact Assessment. [13] See Appendix D of the CSES Study for the Impact Assessment. [14] www.cpt.coe.int/en/visits.htm [15] The project covers Croatia and 3 Member States: Austria, Germany,
Slovenia. [16] Cape et al, Effective Criminal Defense in Europe,
Intersentia, 2010. The research covers 8 Member States: Poland, Hungary,
Belgium, France Italy, Germany, England and Wales, and Finland. [17] The study is
based on an EU wide survey of lawyers on the real barriers to a fair trial to
create a picture of the state of fair trial violations including the right to
legal aid. [18] "The practical operation of legal
aid in the EU", Fair Trials International, July 2012. www.fairtrials.net/wp-content/uploads/2012/09/Legal_Aid_Report.pdf [19] "Compliance of Legal Aid systems
with the European Convention on Human Rights in seven jurisdictions" covering
Bulgaria, Czech Republic,
England & Wales, Germany, Greece, Ireland and Lithuania, Report by Justicia Network, April 2013. http://www.eujusticia.net/images/uploads/pdf/Report_on_Legal_Aid_Justicia_December_2012.pdf [20] T. Spronken, G. Vermeulen, D. de Vocht, L. van Puyenbroeck, EU
Procedural Rights in Criminal Proceedings, JLS 2008/D3/002. [21] Study by Justice, September 2012, http://www.justice.org.uk/data/files/resources/328/JUSTICE-European-Arrest-Warrants.pdf [22] E. Cape et al, Effective Criminal Defence in Europe,
Intersentia, 2010. The research covers 8 Member States: Poland, Hungary,
Belgium, France Italy, Germany, England and Wales, and Finland. [23] http://www.opensocietyfoundations.org/sites/default/files/...improving-pretrial-justice-20120416.pdf [24] Directive 2013/48/EU on Access to a Lawyer does not address the
issue. [25] Article 6(1) TEU. [26] In the focus groups carried out during the study (organised in
England and Wales, Germany, Hungary, Spain, Sweden and France with participants
from Ministries of Justice, Civil Society Organisations and Bar Associations),
it was revealed that there are concerns among national governments,
policymakers and defence practitioners as about the disparity and the
effectiveness of fair trials rights, including the right to legal aid, across
the EU. See the CSES Study for the Impact Assessment, Appendix E with reports
from the focus groups. [27] Salduz v. Turkey, ECtHR, Grand
Chamber, Judgment of 27 November 2008. It was held that for the right to fair
trial to remain sufficiently practical and effective, Article 6 ECHR requires
that suspects be given access to a lawyer, appointed by the state if necessary,
before they are interrogated by the police. This development has focused legal
attention on what happens at the investigatory stage and the risk that the
suspect’s rights may be unfairly and irretrievably prejudiced if he has no
effective access to legal assistance especially before and during his
questioning by the police. This clearly brings with it the question of when
legal aid is first provided, for without this the right of indigent suspects to
legal assistance is an empty one.
The Salduz ruling has been confirmed in over 100 rulings over the last
years. [28] 7 Member States opposed the decoupling of the two measure seen the
closely interrelated nature of the two proposals. [29] See CSES Study for the Impact Assessment, Appendix E. [30] See for further details section 4.2 infra. [31] This can be compared with its more active role in defining the
right of access to a lawyer, see for ECtHR's role in this regard, see the
Commission Staff Working paper, Impact Assessment accompanying the Proposal for
a Directive of the European Parliament and of the Council on the Right of
Access to a Lawyer and of Notification of Custody to a third person in Criminal
Proceedings, COM (2011) 326 Final. [32] See Justicia report, April 2013 supra footnote 19. [33] The ECtHR’s judgments, firstly, only
slowly build up a clear and consistent jurisprudence,
secondly, depend upon the circumstances of particular applications, and,
finally, may not even be followed by all national courts. See e.g. Christou et al, European Cross Border Justice: A Case
Study of the EAW, The AIRE Centre, 2010. [34] Leach, ‘On Reform of the European Court
of Human Rights’, 6 European Human Rts L Rev (2009) 725, at 727/ http://www.ejil.org/pdfs/21/4/2103.pdf [35] Article 41 of the Convention. [36] With a reach extending to over 800 million
individuals within the jurisdiction of the 47 contracting states to the
Convention, the flood of applications lodged in Strasbourg threatens to clog
the Court to the point of asphyxiation. There are delays in processing some
cases of up to seven years http://www.ejil.org/pdfs/21/4/2103.pdf. [37] See, however, infra 4.4, baseline scenario, on the effect of
the Charter after the adoption of the Directive on Access to a Lawyer. [38] The situation might be different after the adoption of the
Directive on Access to a lawyer, see 4.4 infra. [39]In a civil context the Court of Justice has interpreted Article 47
extensively and extended access to legal aid to legal persons, Case
C-279/09 DEB [2010] ECR I-13849. [40] In France and Belgium the pre-trial
detention rates fell by respectively 30% and 20% after introducing similar
schemes post-Salduz. See further Annex IV. [41] 2002/584/JHA: Council Framework Decision of 13
June 2002 on the European arrest warrant and the surrender procedures between
Member States - Statements made by certain Member States on the adoption of the
Framework Decision, OJ L
190, 18.7.2002, p. 1–20. [42] Council
Framework Decision 2008/947/JHA of 27 November 2008 on the application of
the principle of mutual recognition to judgments and probation decisions with a
view to the supervision of probation measures and alternative sanctions, Official
Journal L 337 , 16/12/2008 P. 0102 – 0122, Council
Framework Decision 2008/909/JHA of 27 November 2008 on the application of the
principle of mutual recognition to judgments in criminal matters imposing
custodial sentences or measures involving deprivation of liberty for the
purpose of their enforcement in the European Union, Council Framework Decision
2009/829/JHA of 23 October 2009 on the application, between Member States of
the European Union, of the principle of mutual recognition to decisions on
supervision measures as an alternative to provisional detention. [43] Council Framework Decision 2003/577/JHA of 22 July 2003 on the
execution in the European Union of orders freezing property or evidence, OJ 2003 L196 of 1/11/2003, p. 45-55, Council Framework Decision 2006/783/JHA of
6 October 2006 on the application of the principle of mutual recognition to
confiscation orders, OJ L 328, 24.11.2006, p. 59–78. [44] There is an estimated 4 to 8% of EAWs the execution of which is
refused. [45] See e.g. recent research by JUSTICE, ‘European
Arrest Warrants – ensuring an effective defence’, 2012. [46] This is illustrated by widely covered
cases such as the currently on-going Bulgarian sailors' case, where the Spanish
legal system has been criticised in press for ineffective representation under
their legal aid system of 21Bulgarian sailors arrested and on charge of drug
trafficking. Legal aid lawyers were appointed but did not meet with their clients.
This lead the Bulgarian Prime Minister taking action to provide for legal aid.
See e.g. http://www.novinite.com/view_news.php?id=142535.
There is also the Gary Mann case www.bailii.org/ew/cases/EWHC/Admin/2010/48.html
or the Deborah Dark case http://www.fairtrials.net/cases/deborah-dark/
where EAW's were challenged partly on the basis of insufficient legal
representation resulting from allegedly poor legal aid standards.. For the
latter, see also section 4.2.4 below. [47] On the need to have dual representation in EAW proceedings, see the
Impact Assessment on Access to a Lawyer, “Commission Staff Working paper,
Impact Assessment accompanying the Proposal for a Directive of the European
Parliament and of the Council on the Right of Access to a Lawyer and of
Notification of Custody to a third person in Criminal Proceedings”, COM (2011)
326 Final, p 17 ff. [48] The EAW Framework Decision provides that the person would have
access to a lawyer only if domestic law so provides. [49] In some executing member states (DK, UK and IE), it can be possible
to have legal advice in the issuing Member State at occasions, if this is seen
as expert legal advice needed for the proceedings. See CSES Study for the
Impact Assessment, Section 3.2.1.4. [50] See CSES Study for the Impact Assessment, Section 3.2.1.4. [51] See Impact Assessment on Access to a Lawyer, “Commission Staff
Working paper, Impact Assessment accompanying the Proposal for a Directive of
the European Parliament and of the Council on the Right of Access to a Lawyer
and of Notification of Custody to a third person in Criminal Proceedings”, COM
(2011) 326 Final, and CSES Study for the Impact Assessment on the Directive
Access to a Lawyer, Section 3.2.1.4. [52] Dayanan v. Turkey Application No. 7377/03, judgment of 13
October 2009.Berlinski v Poland, Application No.s 27715/95 and 30209/96),
judgment of 20 June 2002. Also the UN principles explicitly requires Member
States to endure that effective legal aid is provided promptly at all stages of
criminal proceedings, see principle 7, at para 27 and Guideline 4, at para 44
(c). [53] In Salduz (para 54), the ECtHR underlines ".; the importance
of the investigation stage for the preparation of the criminal proceedings, as
the evidence obtained during this stage determines the framework in which the
offence charged will be considered at the trial (..). At the same time, an
accused often finds himself in a particularly vulnerable position at that stage
of the proceedings, the effect of which is amplified by the fact that
legislation on criminal procedure tends to become increasingly complex, notably
with respect to the rules governing the gathering and use of evidence. In most
cases, this particular vulnerability can only be properly compensated for by
the assistance of a lawyer whose task it is, among other things, to help to
ensure respect of the right of an accused not to incriminate himself. (…) Early
access to a lawyer is part of the procedural safeguards to which the Court will
have particular regard when examining whether a procedure has extinguished the
very essence of the privilege against self-incrimination (…). [54] The CPT and SPT have repeatedly emphasised the importance of legal
aid as a fundamental safeguard against intimidation, ill-treatment or torture
and have identified that the period immediately following deprivation of
liberty as the one where the risk of ill-treatment is the greatest. See e.g.
Report on the visit to Austria carried out by the CPT from 13 to 23 April 2004
CPT/inf (2005) 13 at para 26; Report on the visit to
Bulgaria carried out by the CPT from 10 to 21 September 2006 CPT/Inf (2008) 11,
at para. 27; Report on the visit to Hungary carried out by the CPT from 30
March to 8 April 2005, CPT/Inf (2006) 20, at para. 23; Report on the visit to
Poland carried out by the CPT from 26 November to 8 December 2009 CPT/Inf
(2011) 20, at para. 26. [55] See Article 3(4) and Recital 29: "In cases where a suspect or
accused person is deprived of liberty, Member States should make the
necessary arrangements to ensure that the person concerned is in a position to
effectively exercise his right of access to lawyer, including by arranging for
the assistance of a lawyer when the person concerned does not have one, unless
he has waived this right." [56] Detention is understood as the moment where a person’s freedom of
action has been significantly curtailed as defined in the case, Zaichenko
Application No. 39660/02, judgment of 18 February 2010, para 48. Arrest can
arise later, and sometimes is seen as the point in time when the more formal
decision on detention is taken, e.g. by a judge. [57] In only one jurisdiction (UK) the legal aid system caters for
providing legally-aided assistance at the early stages for all persons, whether
they are deprived of liberty or not, when they are being heard in a police
station [58] See CSES Study for the Impact Assessment, Sections 2.4 and 3.2.2, with
examples from Latvia. See also Schumann, Bruckmüller, Soyer, Pre-Trial
Emergency Defence Intersentia 2012 at p. 38 "Even where the law
provides for legal assistance from the beginning a variety of practices and
procedures means that access to legal assistance is not available in practice
to those who cannot pay privately". [59] See CSES IA Study, section 2.4 and 3.2.2. [60] See e.g. Schumann, Bruckmüller, Soyer, Pre-Trial Emergency
Defence Intersentia 2012. Cape et al, Effective Criminal Defence in
Eastern Europe, LARN 2012. See also the FTI Report Defence Rights in the
EU, October 2012, para. 71-73 reporting numerous problems with the duty
lawyer schemes in the Member States and the recent report by Justicia, p. 46. Conference
Report from the Warsaw legal aid conference. See also Improving pre-trial
Justice, p. 38 by Open Society Institute Sofia 2008, Report on Civic
monitoring of police stations (with relation to BU). [61] See CPT reports concerning Austria, Denmark, Greece, Latvia, Poland
and the Slovak Republic. See also Open Society Institute Sofia 2008, Report
on Civic monitoring of police stations. See further Annex VIII. [62] See Justicia Report, 2013 cited at footnote 19 stating that
Regulation might be warranted in providing for the limited provision of free
legal aid pending the determination of the legal aid assessment. Legislative
action, in the form of an EU Directive, would be best placed to apply such a
principle across all Member States, pp. 46-48. [63] For details, see Annex VII. [64] The ECHR and the Charter contains a cumulative means and a merits test
and you need to qualify under both to obtain legal aid. It is thus accepted that there are situations
where a suspected person with insufficient resources does not qualify for legal
aid, for example because of the non-complexity of the case or because the
non-seriousness of the sanction which can be imposed. [65] Kreuz v Poland, Application no. 28249/95, judgment of 19
June 2001. [66] See Table in Annex VII. [67] Quaranta v Switzerland, ECtHR. Judgment of 24 May 1991 [68] See e.g. Pham Hoang v France, ECtHR, Judgment of 25 September 1992, at para 40, Barsom
and Varli v Sweden, ECtHR (dec.) Decision of 4 January 2008. [69] The ECtHR will take into account education, social background and
personality of the applicant and asses them with regard to the complexity of
the case. See e.g. Quaranta v Switzerland, ECtHR. Judgment of 24 May 1991 at para 35. [70] See Annex VII. [71] See CSES Study for the Impact Assessment,
Section 4.3.1: "in a number of jurisdictions, academics, practitioners
(and in some cases Ministries of Justices as well) expressed the view that
the existing threshold was too low, effectively preventing some suspects/accused
who do not have sufficient means to have access to legal aid. " [72] Benham v. United Kingdom (application no. 19380/92), judgment
of 10 June 1996, paragraphs 61 and 64. [73] Pavlenko v. Russia, Application no. 42371/02, judgment of 4
October 2010, para. 99 "assigning counsel does not in itself ensure the
effectiveness of the assistance this counsel may provide to his client".
See also Falcao dos Santos v Portugal, ECTHR, judgment of 3 July 2012, paras
12-18. In Artico v. Italy, Series A no. 37, judgment of 12 May 1980 the
ECtHR held that if the State only needed to appoint a lawyer “it would lead to
results that are unreasonable and incompatible with (...) Article 6 ECHR (...)
and in many instances free legal assistance might prove to be worthless.” [74] Pavlenko v. Russia, Application no. 42371/02, judgment of 4
October 2010. [75] The State's responsibility is of course not unlimited. In Imbriosca,
the Court held that "A State cannot be held responsible for every
shortcoming on the part of a lawyer appointed for legal aid purposes States are
required to intervene only if a failure is manifest or sufficiently brought to
their attention”. [76] See J. Hodgson & J. Blackstock, Legal Aid, Improving
the quality and effectiveness of advice, empirical research how to design
legal aid schemes to ensure quality and competence of legal advice. In fact,
suspects receiving inadequate legal advice are poorly served and a subsequent
challenge of any procedural irregularity is made almost impossible as the
courts assume that suspects with an adviser present has his rights protected. It
has been argued that it is better to have no legal advice than poor legal
advice by insufficiently trained or qualified lawyers, as with no legal advice,
it is easier to challenge evidence. [77] See Conference Report from the Polish Presidency's conference on
Legal Aid in Criminal Proceedings in the EU, December 2011. [78] See conclusion of Justicia report, arguing that there appears to be
little or no monitoring of the legal aid system in the 7 Network Members
jurisdiction, cited supra at footnote 19. [80] FTI Report "The practical operation of legal aid in the
EU", Fair Trials International, July 2012. www.fairtrials.net/wp-content/uploads/2012/09/Legal_Aid_Report.pdf, p. 23. E. Cape, Z. Namoradze, Effective Defence in Eastern
Europe, p. 452, and in relation to Bulgaria, pp. 455-456, and to Lithuania,
p 460. [81] See CSES Study for the Impact Assessment, Section 2.7 and Section
3.2.5. [82] See e.g. E. Cape, Z. Namoradze, Effective Defence in Eastern
Europe, p. 60, Justice Report on EAW system, p. 40. [83] 87 % of respondents to the online survey conducted by the
contractor found that it was not adequate. See also ECBA Cornerstones on Legal
Aid. [84] Report on the visit to Croatia carried out by the CPT from 4 to 14 May
2007, CPT/Inf (2008) 29, at para. 19; Report on the visit to Hungary carried
out by the CPT from 30 March to 8 April 2005, CPT/Inf (2006) 20, at para. 23;
Report on the visit to Poland carried out by the CPT from 8 to 19 May 2000,
CPT/Inf (2002) 9, at para. 23. [85] See E. Cape, Z. Namoradze, Effective Defence in Eastern Europe,
p. 60. [86] See CSES Study for the Impact Assessment Sections 2.5. and 3.2.3,
and relevant country sheets. [87] In 2011, 13 million EU citizens lived in a Member State other than
their own, an increase of 0,5 % with respect to 2010. [88] Denmark, Ireland and the UK do not take part in the adoption of
measures in the justice field (Protocols 21 and 22 to the TFEU). However,
Ireland and the UK have the possibility to opt in. [89] See Impact Assessment on Access to a Lawyer, “Commission Staff
Working paper, Impact Assessment accompanying the Proposal for a Directive of
the European Parliament and of the Council on the Right of Access to a Lawyer
and of Notification of Custody to a third person in Criminal Proceedings”, COM
(2011) 326 Final. [90] Eurostat, Statistics in Focus 94/2009,
Eurobarometer 337/2010 [91] 139,650 cases pending as at December 2010. [92] http://ec.europa.eu/justice/news/intro/doc/com_2010_573_4_en.pdf [93] It is thus accepted
that there are situations where a suspected person with insufficient resources
does not qualify for legal aid, for example because of the non-complexity of
the case or because the sanction which can be imposed is not serious. [94] See Annexes VI-VII. [95] Stakeholders in a number of focus groups were supportive of a legislative
measure ensuring non-means tested legal aid at the pre-trial or police stage of
the proceedings, See CSES section 4.2.3. [96] See e.g. UN guidelines, para 40c. [97] In the focus group meetings it appeared that there was a preference
for such a qualitative approach compared to the quantitative approach under
option 4 section 4.2.3. [98] Stakeholders representing the legal profession showed limited
enthusiasm for increased supervision, (CSES IA Study, section 3.2.5) while the
Member States' in the expert meeting were positive with regard to non-legally
binding action. [99] See e.g. ECHR case law and UN standards and Guidelines, para 36-37. [100] Stakeholders in a number of countries (e.g. BE, CY, CZ, EE, SE)
from a range of backgrounds referred to difficulties in introducing a common
quantitative threshold. See CSES Study for the IA, section 4.2.3. [101] Due to very limited data available, many of the calculations are
based on estimations and extrapolations. The costs are rather giving an
indication of an assumed maximum cost. Annex IV shows the effect of the
variations of the assumptions which can be made and includes different
scenarios. [102] For calculations see Annex IV. [103] Member States' potential savings owing to a reduction in a number
of appeals, condemnations by the ECtHR, or delays in judicial cooperation
proceedings cannot be estimated with any statistical precision due to lack of
Member State data on costs per case. Only indicative qualitative expectations
in non-numerical terms can therefore be provided based on stakeholders'
judgments. However, as an example of the cost of a case being brough through
the domestic and ultimately before the ECtHR, it is estimated that the Cadder case in
Scotland on insufficient
legal representation cost
in excess of €175,000. [104] Member States' potential savings owing to a reduction in a number
of appeals, condemnations by the ECtHR, or delays in judicial cooperation
proceedings cannot be estimated with any statistical precision due to lack of
Member state data on costs per case. Only indicative qualitative expectations
in non-numerical terms can therefore be provided based on stakeholders'
judgments. [105] For cost calculations, see IA on vulnerable suspects. [106] See CSES Report for the Impact Assessment, Section 4.2.1. See also
Section 6.1.1 accounting for the limited support for status quo in the
interviews and focus groups. Also in the expert meeting it emerged that even
though some member States were not favourable to a fully-fledged European
binding legislation on legal aid, some action was favoured. [107] See CSES IA Study, section 4.2.3. [108] See. e.g. "Compliance of Legal Aid systems with the
European Convention on Human Rights in seven jurisdictions" covering
Bulgaria, Czech Republic, England & Wales, Germany, Greece, Ireland and
Lithuania, Report by Justicia Network, April 2013, Cornerstones on legal Aid, May
2013, ECBA. See also CSES IA Study Section 4.2.3, reporting that stakeholders
in a number of focus groups were supportive of a legislative measure ensuring
non-means tested legal aid at the pre-trial or police stage of the proceedings. [109] See CSES IA Study, Section 4.4.5. [110] See CSES IA Study section 3.2.5. [111] OJ C 295, 4.12.2009, p. 1. [112] OJ L 280, 26.10.2010, p. 1. [113] OJ L 142, 1.6.2012, p.1. [114] OJ L 190, 18.7.2002, p. 1. [115] OJ L 190, 18.7.2002, p. 1. [116] Berlinski v Poland, Application no.s 27715/95 and 30209/96),
judgment of 20 June 2002, paragraphs 77 and 78. [117] Pakelli v Germany, ECtHR, Judgment of 25 April 1983, at
para. 34. See also: Twalib v Greece, ECtHR, Judgment of 9 June 1998, at
para. 51. [118]Kreuz v Poland, Application no.
28249/95, judgment of 19 June 2001. [119]Quaranta v. Switzerland (application no.
12744/87), judgment of 24 May 1991. [120] Quaranta v Switzerland, ECtHR, Judgment of 24 May 1991, at
para. 35. [121] Benham v. United Kingdom (application no. 19380/92),
judgment of 10 June 1996, paragraphs 61 and 64. [122] Wersel v Poland, Application no. 30358/04, judgment of 13
September 2011. [123] Wersel v Poland ,
ECtHR, Judgment of 13 September 2011, at para. 52. See also: R.D. v Poland,
ECtHR, Judgment of 18 December 2001, at paras. 50-52. [124] Croissant v Germany, Application no. 58295/00, judgment of
27 November 2007, para 36. [125]See Croissant,
paragraph 29. [126] Croissant v Germany, ECtHR, Judgment of 25 September 1992,
at para. 29. See also: Lagerblom v Sweden, ECtHR, Judgment of 14 January
2003, at para. 55, holding that Article 6(3)(c) cannot be interpreted as
securing a right to have public defence counsel replaced. [127] Ramon Franquesa Freixas v Spain, ECtHR (dec.), Decision of
21 November 2000. [128] Croissant v Germany, Application no. 58295/00, judgment of
27 November 2007, para 36. [129] Ognyan Asenov v Bulgaria, ECtHR, Judgment of 17 February 2011. [130] Ognyan Asenov v Bulgaria, ECtHR, Judgment of 17 February 2011, at para 44. [131] Artico v Italy, Series A no. 37, judgement of 12 May 1980 [132] Imbriosca v Switzerland, Application no. 13972/88, judgement of
24 November 1993 [133] Daud v Portugal, ECtHR, Judgment of 21 April 1984. [134] Daud v Portugal, ECtHR, Judgment of 21 April 1984, at para. 42. [135] Falcao dos Santos v Portugal, ECtHR, Judgment of 3 July 2012. [136] Falcao dos Santos v Portugal, ECtHR, Judgment of 3 July 2012, at paras. 12-18. [137] Ibid, at para. 45. [138] Discussions with criminal defence lawyers in the country [139] Nederlandse Orde van Advocaten, Position Paper - Netherlands Bar
Association – Directive concerning the right to access to an advocate in
criminal proceedings and the right to communication on arrest [140] ÉVALUATION
DE LA LOI SALDUZ, Troisième rapport intermédiaire. [141] https://e-justice.europa.eu/content_costs_of_proceedings-37-en.do [142] Study on the Transparency of Costs of Civil Judicial
Proceedings in the European Union, previous footnote. [143] Hourly lawyer fee taken from the appendices with country information from the Study on the Transparency of Costs of Civil
Judicial Proceedings in the European Union, inflated since 2007 (the year the
report was published), based
on the yearly inflation rates from Eurostat. [144] Average cost of Emergency Legal aid
/ hourly cost of lawyer. This is
calculated only for the four Member States for which figures are available. It
provides the share of the cost of an emergency legal aid intervention compared
to the hourly lawyer fee (Column B). In the case of Belgium for instance, the
hourly fee of a lawyer (€ 223) divided by the cost of an emergency legal aid
intervention (€96). €223/€96 = 0.43 (43%). The non-weighted average for BE,
E&W. FR and NL is 48%. [145] Average cost of emergency legal aid per intervention.
For BE, E&W. FR and NL, the explanations are provided above. For all other
Member States, this is calculated by multiplying the hourly lawyer fee (Column
B) by the average of Column C (48%). This provides an estimated figure for all
Member States where no data is available. [146] In the case of Italy, we had to revert to lower figures as the
calculations would have led to a situation where the total amount of legal aid
at the police station was higher than the amount spent on legal aid. We have
thus aligned Italy with the group of member States including Greece, Hungary,
Portugal and Slovenia based on discussion with Italian criminal lawyers. [147] Number obtained from the Swedish national Court Administration. [148] Column B – number of criminal cases – Figures from
CEPEJ statistics, Ministries of Justice or extrapolations (based on existing
figures. In order to extrapolate the figures, we have calculated the number
of criminal cases per 1,000 inhabitants for Member States where the data is
available and extrapolated those figures based on the population of the Member
States for which data was needed. In order to reflect differences between
legal aid systems, we have grouped Member States as follows (EU 15, EU10+
Croatia, and BG+ RO) [149] Column C - Number of
police station interrogation / deprivation of liberty – The number of criminal
cases where the suspect accused is effectively deprived of liberty. [150] Column D – Share of
criminal cases where there has been an effective deprivation of liberty out of
the total number of criminal cases. Column C divided by column B. [151] Column E – Share of cases
of effective deprivation of liberty that receive legal aid .The data is
provided by Ministries of Justice and bar associations. [152] Column B: Data on Legal aid expenditure for criminal
proceedings is taken either from the CEPEJ report or provided
directly by Ministries of Justice. For Member States where no data was
available for the amount spent on legal aid in criminal procedures, we have
multiplied the total legal aid by the share of legal aid devoted to criminal
procedure for the member States where it is available. In order to reflect
differences between legal aid systems, we have grouped Member States as follows
(EU 15, EU10+ Croatia, and BG+ RO) [153] Column C: Number of criminal cases
is based on figures from Eurocrime statistics, Ministries of Justice or
extrapolations (based on existing figures) [154] Column D: Number of cases of
deprivation of liberty: Arrived at by taking the number of criminal cases
in Column C multiplied by 58% (i.e. the share of criminal cases where there
has been an effective deprivation of liberty out of the total number of
criminal cases for Member States where data are available). [155] Column E: Number of cases of
deprivation of liberty receiving legal aid. Calculated by taking the number
of cases of deprivation of liberty (Column D) and multiplying it by 56% (i.e.
the share of cases of effective deprivation of liberty receiving legal aid as
per Table 2 ) [156] As calculated in Table 1. [157] The total cost of emergency legal aid in Member States, including
in Member States where it already exists. [158] Explanations of these percentages can be
found in the section on means and merits tests below. [159] Explanations of these percentages can be
found in the section on means and merits tests below. [160] European Sourcebook of
Crime and Criminal Justice Statistics – 2010 [161] European Sourcebook of Crime and Criminal Justice Statistics – 2010 [162] In order to reflect differences between legal aid systems, we have
grouped Member States as follows (EU 15 – 48%, EU10 + Croatia (84%), and BG+ RO
– 87%) [163] On average, the minimum wage is equivalent to 68% of the average
wage. [164] In order to calculate this figure, we
have multiplied the share of EAWs per issuing state by the actual number of
EAWs executed. For instance, Austria was responsible for 1.96% of all EAWs
issued in 2010, year in which 4,466 EAWs were executed. 4,466 x 1.96% = 88. [165] In order to calculate this figure, we
have multiplied the share of EAWs per issuing state by the actual number of
EAWs executed. For instance, Austria was responsible for 1.96% of all EAWs
issued in 2010, year in which 4,466 EAWs were executed. 4,466 x 1.96% = 88. [166] This is the number of lawyer that are members of the Deutsch
Anwaltsverein's Criminal Lawyer section. The number of Fachanwälte is slightly
lower. [167] Cost of emergency legal aid for persons deprived of liberty, taking
into account the recovery of emergency legal aid and the savings linked to the
fall in pre-trail detentions under 15% and 20% scenario when 25% of the cost is
recovered. [168] Cost of emergency defence for everyone
interviewed at police station, minus the recovery of legal aid from suspects
where it is found that they do not qualify for legal aid in the subsequent
eligibility testing. The
recovery of emergency legal aid cost is calculated assuming that only 25% of emergency legal aid cases
that do not qualify for legal aid will ultimately be recovered, on the basis of
15% or 20 % of cases receiving legal aid. [170] Denmark benefits from special arrangements, which include all the
measures adopted under the framework of the area of freedom, security and
justice. This country has decided not to participate in the legislative
procedures in this field. The impacts on DK have consequently not been measured. [171] However, the
Estonian Bar Association informed us that in practice legal aid is granted
immediately before a detained suspect is questioned for the first time by the
police. [172] This table above provides an indication of the share on the
population entitled to legal aid. It should be noted that this is based on the
information collected during the field research phase of the CSES study; in
some cases estimations were used and in the case of countries with partial
legal aid, the lowest threshold has been used. [173] Where the length of potential sentence is specified this figure
shown is generally the minimum sentence. [174] CPT, 2010. Report to the Austrian
Government on the Visit of Austria carried out by the CPT, p. 16-17. Available
from: http://www.cpt.coe.int/documents/aut/2010-05-inf-eng.pdf [Accessed 30 May 2012] [175]CPT, 2008. Report to the Danish
Government on the Visit to Denmark carried out by the CPT, p. 15. Available
from: http://www.cpt.coe.int/documents/dnk/2008-26-inf-eng.pdf [Accessed 30 May 2012] [176]CPT, 2012. Report to the Greek
Government on the Visit to Greece carried out by the CPT, p. 42. Available
from: http://www.cpt.coe.int/documents/grc/2012-01-inf-eng.pdf [Accessed 30 May 2012] [177]CPT, 2009. Report to the Latvian
Government on the Visit to Latvia carried out by the CPT, p. 16. Available
from: http://www.cpt.coe.int/documents/lva/2009-35-inf-eng.pdf [Accessed 31 May 2012] [178]CPT, 2011. Report to the Polish
Government on the Visit to Poland carried out by the CPT, p. 17. Available
from: http://www.cpt.coe.int/documents/pol/2011-20-inf-eng.pdf [Accessed 31 May 2012] [179]CPT, 2010. Report to the Government of
the Slovak Republic on the Visit to the Slovak Republic carried out by the CPT,
p. 18. Available from: http://www.cpt.coe.int/documents/pol/2011-20-inf-eng.pdf [Accessed 31 May 2012] [180]CPT, 2008. Report to the Slovenian
Government on the Visit to Slovenia carried out by the CPT, p. 15. Available
from: http://www.cpt.coe.int/documents/pol/2011-20-inf-eng.pdf [Accessed 31 May 2012] [181] Framework Decision 2002/584/JHA of 13 June 2002 on the
European arrest warrant and the surrender procedures between Member States OJ
L190/1 18.07.2002 [182] ECJ Case C-396/11 [183] Court of Justice of the European Union, (Grand
Chamber), 26 February 2013, case C-399/11. [184] Council Framework Decision 2009/299/JHA of 26 February
2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA,
2008/909/JHA and 2008/909/JHA, thereby enhancing the procedural rights of
persons and fostering the application of the principle of mutual recognition to
decisions rendered in the absence of the person concerned at the trial OJ
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