Judicial cooperation needs access to provisional legal aid: the proposal for Directive discussed in LIBE committee on the 11th of November.

This proposal for directive is a part of the package on procedural rights for suspects or accused persons in criminal proceedings proposed by the Commission in November 2013. Harmonization of safeguards for suspects and accused persons deprived of liberty is of paramount importance also thanks to the creation of the European Arrest Warrant. Every Member State (MS) has different procedural rules and this means that the level of protection differs widely across the EU. The right to access to legal aid for the people deprived of liberty represents the condition sine qua non for the exercise of all the other rights when facing criminal proceeding.

LIBE Committee meeting was aimed at identifying the crucial issues of the proposals for directives and saw the participation of experts who contributed to underline different aspects which need further analysis. The first person to take the floor was Mr. Emilio Álvarez Salcedo, Head of Sector, Ministry of Justice in Spain.His speech focused on the situation in Spain which has one of the most generous legal aid systems because it covers all people, not only Spanish citizens. It permits access to justice to less favoured social groups and it tries to reach also specific groups, such as people in prisons and women victims of violence. All those who are in a less favourable situation have the right to be treated the same way by lawyers which are providing them with assistance.

There are some problems derived from the structure of Spanish State because they have a central administration and also the administrations of autonomous communities. This structure poses problems of uniformity across Spain. Due to decentralisation also funding varies from one state to another and each autonomous community has its own rules. In many cases lawyer providing the same services get different fees. The system is very complex and also decentralised since free legal aid is not provided by the State directly but through the associations of lawyers. There are thousands of lawyers who provide legal aid but this service has a huge cost for the State. As far as concerns the directive, Mr. Álvarez Salcedo expressed serious doubts with regard to the possibility of standardisation because of the existence of completely different systems of legal aid present in the EU.

He also stressed the issue of costs related to the EAW. There are cost derived from the access to free legal aid but also operating costs. He called for an agreement which will establish a refunding system to the State that has the economic burden of the execution of the EAW. He also remembered the question of foreigners, with a particular attention to minors. Minors arrested at the border are entitled to have also social assistance. The demand for asylum, leads to an immediate free legal aid by a lawyer. Free legal aid has a cost and this cost is increasing, with a great impact on the budget of a country which has many difficulties due to the economic crisis.

The second to take the floor was Mr. Zaza Namoradze, Director of the Open Society Justice Initiative’s Budapest office. He firstly welcomed the efforts undertaken by the EU, and especially the EP, to improve the rights of suspects across the MS. He remembered that the directive on the right to legal aid goes hand in hand with the directive on access to a lawyer, adopted last year. He expressed his disappointment with regard to Commission’s choice to split this issue into two different directives, one regarding access to a lawyer and the other regarding access to provisional legal aid. Now there is a directive on the right to access to a lawyer and the Council and the European Parliament (EP) are currently working in order to reach an agreement on the second issue. This approach raises some concerns with regard to fragmentation which may lead to gap in protection. Having more than one directive on interrelated issues poses risk of coordination and of lowering the level of protection.

Mr. Namoradze outlined that this proposal for directive has a narrower scope than the directive on the access to a lawyer, since it applies only to those deprived of liberty. It should mirror the scope of the directive on access to a lawyer. If a suspect is released on bail, he does not have any more access to legal aid. The time at which provisional legal aid comes to an end is unclear. It could be possible for someone to be denied legal aid but it will be required within hours to present for police questioning. He considers that free access to legal aid should be until the person arrives before the Court for the determination of the charges. Furthermore it should endure until the suspect has the reasonable opportunity to find a lawyer.

Another important issue is that of recovery of costs from those who are not eligible for legal aid. One problem is absence of eligibility criteria from the proposal. This leaves MS wide powers which can narrow the application of the directive. The way it is designed now, could lead people not to ask for legal aid, therefore recovery costs should not be included in the directive. A way of excluding people for the entitlement to free legal aid is the means test. There are some good guidance measures in the recommendation with regard to the means test. In many countries the financial threshold for means test is so law that 95% of people are denied legal aid. This represents a clear instrument to deeply restrict access to legal aid.

The quality of legal aid is another crucial matter. Lawyers must be independent from the parties who have an interest in the case. The police should not have the possibility to appoint lawyers who are more suitable for their purpose. In addition, in many EU countries legal aid is provided by apprentice lawyers.

Mr. Namoradze also acknowledged the existing economic burden placed on States and derived by the present proposal and for this reason he stressed the importance of mechanisms and management of legal aid services. There are few countries that have legal aid legislation. In many countries even the more basic data on legal aid are not collected and there is no idea on the size of the phenomenon. Neither the directive nor the recommendation include provisions for resolving practical aspects of legal aid. What a State should ask itself is: are the services provided in an efficient manner? The Lithuanian Government was spending lot of money but with no good results and no accountability and transparency. The problem was that no one was accountable for the management of these services. There is the necessity to have an independent legal aid board to administer legal aid. The directive should require that comprehensive systems should be created.

After the intervention of the two experts, Mr. Denis De Jong added some considerations as rapporteur for this proposal. He started saying that, since we have the EAW, we must also have legal aid. MS wanted the EAW but now they must deliver also on legal aid. There must be safeguards for people who might end up in another MS for prosecution.

He enforced the idea, expressed by Mr. Namoradze, that the scope of the Commission is too limited and the Council is going the other way, instead of broadening the application of the directive. He declared that we must have the full scope of legal aid: “If we do not make progress on legal aid, it will be difficult to make progress on children and on mutual recognition. If we are very limited and restricted on legal aid, con cannot have the EAW and the Investigation European Warrant. Working in a fragmented field is not the solution. We should have a code of procedural law.” He also contested the presence of a directive and of a recommendation on the issue and declared that, in his report, he will move some points of the recommendation to the directive.

In the end he demanded the Council to work harder on this issue and to propose an agreement.

Some members of the Parliament, such as Ms. B. Sippeland Ms. J. Sargentini, intervened and declared that financial consequences of the legislation are important but there are also costs regarding prosecution which are not mentioned by States, since it is considered a necessary effort. They pointed out that if we want judicial and police cooperation, we must deal with the consequences.

It seems clear that MS are not so committed to provide provisional access to legal aid as they are in searching and prosecuting alleged offenders but still they cannot ignore the duty to offer some safeguards to people who are involved in criminal proceedings. There are MS which criticise the EAW because of the lack of protection of people subjected to it but at the same time they are not convinced of acting in order to improve it.


(Ana Daniela Sanda)


   To know more:

     -. Directive on the right of access to a lawyer http://eur-lex.europa.eu

     -. Commission recommendation on the right to legal aid for suspects or accused persons in criminal proceedings http://eur-lex.europa.eu/legal-content/en

     -. Proposal for a directive to the European Parliament and the of the Council on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedingshttp://eur-lex.europa.eu

Adeline Silva Pereira

Après avoir effectué la deuxième année du master Sécurité Globale analyste politique trilingue à l'Université de Bordeaux, j'effectue un stage au sein d'EU Logos afin de pouvoir mettre en pratique mes compétences d'analyste concernant l'actualité européenne sur la défense, la sécurité et plus largement la coopération judiciaire et policière.

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