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NEWS

European Parliament adopts Legal Aid Directive, incorporates LEAP's proposed amendments

editor - July 25, 2016 - European Arrest Warrant, European Parliament, LEAP, legal aid

European_ParliamentOn 7th July, the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs (LIBE), agreed to adopt the Legal Aid Directive by a vote of 44 to 1. The amended text was presented by the rapporteur Dennis de Jong (GUE/NGL) and was approved without further deliberations. This directive is the most recent legislative measure (Measure C2) of the Roadmap of procedural rights adopted by the Council in November 2009.  The final text incorporates significant improvements proposed by the Legal Experts Advisory Panel (LEAP) in the Position Paper published in February 2015. LEAP is an EU-wide network of experts in criminal justice and human rights coordinated by Fair Trials, and its members include lawyers, NGOs, and academics from all 28 EU Member States.
In the above-mentioned position paper, LEAP set out certain concerns and suggested improvements which were subsequently reiterated in further briefings to the EU institutions during the negotiations. The main concern was the limited scope of the proposed directive, with LEAP recommending it be expanded to cover legal aid throughout criminal and European Arrest Warrant (EAW) proceedings, in line with the Access to a Lawyer Directive and the UN Principles and Guidelines. LEAP members also expressed concern that vulnerable individuals might be deterred from exercising their right to legal aid due to the future risk of having to repay the cost of legal services. In response to this issue, they suggested that provisional legal aid should be provided irrespective of any eligibility assessment and without any risk of future cost recovery. Finally, LEAP proposed that the directive should set out guidance on eligibility assessments, minimum standards relating to the quality of legal aid, and it should require Member States to ensure that a system of effective remedies is in place for any violations of the right to legal aid.
On 30th June 2016, the European Parliament and the Council reached an agreement on the proposed directive, accommodating some of LEAP’s proposed modifications, notably those related to the scope of the directive. The final agreed text contains a number of substantial amendments in compliance with the right to a fair trial, including:

  • Extension of the scope of the directive to include legal aid throughout criminal proceedings rather than being limited to provisional legal aid;
  • Requirements relating to eligibility assessments, with Member States able to choose between a merits and/or a means test;
  • A requirement that appointments of legal aid lawyers should be made by an independent and competent authority, with replacements of lawyers permitted where circumstances justify;
  • An obligation on Member States to put in place systems ensuring the quality of legal aid and the independence of and training for legal aid lawyers; and
  • The introduction of a broad remedies provision.

The agreement of EU-wide legislation establishing minimum standards on the right to a legal aid represents a significant step forward in the efforts to improve procedural rights protection in all Member States and to strengthen the mutual trust necessary to underpin their effective cooperation in criminal matters. Once fully implemented by Member States, the Legal Aid Directive should contribute to the ‘practical’ and ‘effective’ enjoyment of the right to access a lawyer for those who are deprived of liberty and who do not have sufficient financial means, ensuring quick and effective legal representation from the start of proceedings.
The limited scope of the Legal Aid Directive is disappointing, but as the Directive only sets minimum rules, Member States are still able to grant legal aid in situations not covered by its scope. Moreover, it remains crucial to read the Legal Aid Directive in the context of the clear requirements established by the European Court of Human Rights in Salduz v Turkey, in which it confirmed that the right to legal assistance applies from the first interrogation of a suspect by the police. With the removal of the concept of provisional legal aid from the Legal Aid Directive, Member States must still ensure that inefficiencies in determinations of legal aid cannot be used as an excuse to go ahead with interviewing someone without a lawyer present.
Continuing its ongoing work in support of the implementation of the first three Roadmap Directives, LEAP will be actively involved in the implementation of the Legal Aid Directive and will work closely with national authorities to ensure the effective enjoyment of legal aid in practice.

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If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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