On 13th October 2016, the Council of the European Union finally adopted the Legal Aid Directive, which sets common standards across the EU to ensure that financial and judicial support is granted in criminal proceedings to all accused persons who cannot afford a legal defense with their own resources. Given certain preconditions, the Directive also establishes that legal aid is made available in European Arrest Warrant (EAW) proceedings in both the executing and the issuing Member State.
The Directive does not concern Denmark, Ireland or the UK, which have all opted out of this criminal justice chapter at different times.
Fair Trials welcomes the adoption of the Directive, as it enshrines at the EU level a crucial element in the effective enjoyment of fair trial rights by everyone, regardless of their economic situation. The Directive includes several recommendations that Fair Trials outlined together with our Legal Experts Advisory Panel in our 2015 position paper.
Most notably, we are delighted to see that the final text requires legal aid to be provided throughout the proceedings, whereas the original focus of the draft directive was limited to the early stages of the process (provisional legal aid). To decide whether a person is eligible to legal aid, Member States will be able to choose to apply either a means test or a merits test or both. A “means test” is used to assess whether the person lacks sufficient resources to pay for legal aid, while a “merits test” evaluates whether the circumstances of the case, including its complexity and the seriousness of the alleged crime, require the provision of legal aid per se.
Fair Trials also welcomes the duty of Member States to ensure an effective and quality legal aid system, as well as to provide training to the staff responsible for granting financial support. On a similarly positive note, Member States will be required to deliver effective and timely remedy in case the right to legal aid is breached.
Nonetheless, a number of provisions still raise concerns as to a) provisional legal aid and b) eligibility tests in EAW proceedings. In the first instance, the removal of the concept of provisional legal aid from the text of the Directive leaves no system in place to provide emergency legal representation whilst the decision on legal aid is being taken. Therefore, Member States could theoretically make use of the delays in decision-making on legal aid to justify a derogation to legal aid itself in the meantime. In the second instance, the eligibility test in EAW proceedings does not fully mirror the equivalent provision in the Access to a Lawyer Directive, which may complicate assessments of whether legal aid should be provided in a particular case.
The Council’s adoption marked the final step of the legislative procedure. From publication on the EU Official Journal, Member States will have 30 months to transpose the directive in their domestic legal orders. Fair Trials will closely monitor this crucial window to ensure meaningful and full transposition is carried out in every Member State and that current shortcomings are tempered in national legislation.
