Explanatory Memorandum to COM(2013)824 - Provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings - Main contents
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| dossier | COM(2013)824 - Provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant ... |
|---|---|
| source | COM(2013)824  |
| date | 27-11-2013 |
1. This proposal for a Directive of the European Parliament and the Council aims to set common minimum standards on the right to provisional legal aid for suspects or accused persons in criminal proceedings when they are deprived of liberty and for provisional legal aid and legal aid for persons subject to proceedings pursuant to Framework Decision 2002/584/JHA on the European arrest warrant ("requested persons").
2. The Stockholm Programme[1] 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 proposals 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 measures deal with distinct procedural rights for suspects or accused persons which have been identified by Member States and stakeholders alike as needing to be strengthened by action at EU level, and thus have to be considered as a building-block for a whole edifice.
3. Three measures have already been adopted: a Directive 2010/64/EU of the European Parliament and of the Council on the right to interpretation and translation in criminal proceedings[2] in October 2010 and Directive 2012/13/EU of the European Parliament and of the Council on the right to information in criminal proceedings in May 2012[3], 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 in October 2013.[4] Measures on the protection of vulnerable persons suspected or accused in criminal proceedings are presented as a package with the present initiative, together with a Directive on the strengthening of certain aspects of the presumption of innocence and of the right to be present at trial in criminal proceedings, which form part of the underlying principles of the right of fair trial.
4. Similarly to the previous measures, this proposal seeks to improve the rights of suspects or accused persons in criminal proceedings. Having common minimum standards governing these rights should boost mutual trust between judicial authorities and thus facilitate the application of the principle of mutual recognition. A certain degree of compatibility between the legislation of Member States is pivotal to improve judicial cooperation in the EU.
5. The proposal is based on Article 82(2) of the Treaty on the Functioning of the European Union (TFEU). That Article provides that, ‘[t]o 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, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States.
'They shall concern:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d)(…)’.
6. The current proposal is closely linked to Directive 2013/48/EU on the right of access to a lawyer and it aims to contributing to rendering effective the right on access to a lawyer provided for in that Directive at the early stages of the proceedings for suspects or accused persons deprived of liberty and to ensure that requested persons in European arrest warrant proceedings have access to legal aid to ensure the right of access to a lawyer in both the executing and issuing Member State ("right of dual defence").
7. The Commission is presenting a balanced package of measures, respecting the differences between the legal traditions and systems of the Member States, as provided for in Article 82 (2) TFEU and taking the action needed to foster mutual trust while respecting the principle of proportionality (Article 5 TEU). It has been carefully assessed if action should be taken at EU level, and if so, at what level and in what form. The need for caution is particularly obvious in times of fiscal consolidation, when cost implications need to be carefully weighed.
8. The aspects on legal aid in criminal proceedings dealt with in this Directive have been identified as of particular importance to complement and ensure the effectiveness of the rights in the Directive on access to a lawyer and to improve mutual trust between criminal justice systems.
9. The right to legal aid in criminal proceedings is enshrined in Article 47(3) of the Charter and in Article 6(3)(c) ECHR. It is also recognised in Article 14, paragraph 3 (d) of the ICCPR. The fundamental principles on which a legal aid system should be based are outlined in the United Nationals Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems adopted on 20 December 2012 by the General Assembly.
10. It is in the early phase of the proceedings, especially if deprived of liberty, that suspects or accused persons will be the most vulnerable and most in need of legal aid to be assisted by a lawyer. Therefore, the Directive makes provisions for so-called 'provisional legal aid' which brings significant added value and improved mutual trust between criminal justice systems.[5]
11. Moreover, while all Member States provide access to legal aid for suspects and accused persons in criminal proceedings, it appears that requested persons in European Arrest Warrant proceedings do not always have access to legal aid in the Member States. This hampers the exercise of the right provided for in the Directive on access to a lawyer, i.e. access to a lawyer in both the executing and issuing Member State. Moreover, the rights in Article 6 ECHR, including the right to legal aid, do not extend to extradition proceedings. Therefore, in order to improve mutual trust and make the right to dual defence in European arrest warrant proceedings effective, the Directive also requires Member States to give access to legal aid, beyond provisional legal aid as the requested persons are not always deprived of liberty.
12. This measure is presented together with an accompanying Commission Recommendation on the right to legal aid for suspects or accused persons in criminal proceedings. The Recommendation seeks to foster certain convergence as regards the assessment of eligibility of legal aid in the Member States, as well as encouraging the Member States to take action to improve the quality and effectiveness of legal aid services and administration.
13. The current proposal will also contribute to strengthening the legal safeguards that protect individuals involved in proceedings conducted by the European Public Prosecutor's Office. The recently presented Proposal for a Council Regulation[6] clarifies that the suspected person has all rights granted by EU legislation as well as other rights which derive directly from the Charter of the Fundamental Rights of the European Union, to be applied in accordance with applicable national law. It explicitly refers to the right to legal aid and by introducing strengthened standards on legal aid, the current proposal also reinforces the procedural safeguards applying in proceedings conducted by the European Public Prosecutor's Office.
14. 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. benefitting 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 defence 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 presumption of innocence and the rights of the defence as set out in Article 48 of the Charter.
Contents
15. In March 2009, a 2-days-expert meeting on procedural rights, including the right to legal aid was organised. In a meeting on 3 June 2013, all concerned 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.[7] 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.
16. 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.
17. Stakeholders were consulted on several occasions. The Commission has had regular and bilateral contacts with a number of NGOs and other stakeholders and several of the NGO's shared contributions with the Commission in view of the forthcoming measures.[8]
18. In the context of the study for the Impact Assessment, wide outreach with Member States' Ministries of Justice, interest organisations in the Member States, Bar Associations and legal aid boards was made. In-depth interviews were carried out with lawyers in the bar associations, representatives from stakeholder organisations and Ministries of Justices in all Member States. 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. In addition, an on-line consultation for legal aid providers in the Member States was carried out.
19. The Commission carried out an impact assessment to underpin its proposal. The report on the impact assessment is available at ec.europa.eu/governance.
Article 1 – Subject-matter
20. The objective of the Directive is to ensure that suspects or accused persons in criminal proceedings who are deprived of liberty and persons subject to European arrest warrant proceedings have access to legal aid to render effective their right of access to a lawyer as provided for in the Directive on the right of access to a lawyer.
Article 2 – Scope
21. The Directive applies to suspects or accused persons who are deprived of liberty. It applies from the deprivation of liberty, i.e. as from the moment one is taken into police custody or similar custody, which also covers periods before formal charge and arrest has taken place. This reflects ECtHR jurisprudence under Article 5(1) ECHR.
22. The Directive also applies to requested persons in European arrest warrant proceedings. In such situations, the Directive applies from the time of arrest in the executing Member State until the surrender, or, in cases of non-surrender, until the decision on surrender has become final.
23. Legal aid means funding and assistance from the Member State ensuring the effective use of the right of access to a lawyer. It should cover the costs of the defence, such as the cost of the lawyer, and other costs of the proceedings, such as court fees.
24. Provisional legal aid means legal aid to a person deprived of liberty until the decision on legal aid has been taken.
Article 4 – Access to provisional legal aid
25. At the early stages of the proceedings, suspects or accused persons are particularly vulnerable and access to a lawyer is of paramount importance to protect the fair trial rights, inter alia the right to not incriminate oneself.[9] Article 6 of the ECHR requires that, as a rule, a suspect should be granted access to legal assistance from the moment he is taken into police custody or pre-trial detention, and that such assistance should be assigned officially if need be.[10]
26. Under the Directive on access to a lawyer, suspects or accused persons have a right to access to a lawyer inter alia without delay after deprivation of liberty and before any questioning. In order for suspects or accused persons who are deprived of liberty to be in a position to effectively exercise the right of access to a lawyer at the early stages of the proceedings, they should not have to wait for access to a lawyer pending the processing of the application for legal aid and the assessment of the eligibility criteria for legal aid, which could be lengthy. Member States should, therefore, ensure that access to provisional legal aid is available without delay after deprivation of liberty and before any questioning takes place.
27. To this effect, Member States should set in place procedures or mechanisms, for example duty lawyer schemes or emergency defence services, allowing intervention with short notice at police stations or detention centres, so that the right to provisional legal aid and access to a lawyer without undue delay after deprivation of liberty and before any questioning becomes practicable and effective.
28. The right of access to a lawyer entails a number of rights for suspects or accused persons, as provided for in Article 3(3) of Directive 2013/48/EU on the right of access to a lawyer, such as the right to meet in private and communicate with the lawyer, the right to have the lawyer present and participate effectively when the suspect or accused person is questioned, and the right for the lawyer to assist to certain evidence-gathering acts. Member States may make practical arrangements regarding the exercise of the right of access to a lawyer e.g. as regards the duration and frequency of communication with the lawyer and there can thus be certain limits to the exercise of that right, provided they do not prejudice the essence of the right. The right to provisional legal aid must be provided to the extent necessary to allow for the effective exercise of the right of access to a lawyer and any limitation must ensure that suspects or accused persons are not prevented from exercising effectively their rights.
29. The right to provisional legal aid should last at least until the competent authority has made the final decision on whether the suspect or accused person is eligible and benefits from legal aid. In case the application for legal aid is fully or partially rejected, the right to provisional legal aid ceases when this decision has become final and the rights to appeal or review have been exhausted. If the application for legal aid is granted, the right to provisional legal aid ceases when the legal aid has taken effect and, if applicable, the appointment of the legal aid lawyer has taken effect. In such cases, Member States shall ensure that there is no gap where the suspect or accused person is unrepresented.
30. The right to provisional legal aid also applies to requested persons in European arrest warrant proceedings who are deprived of liberty. Such persons should have the right to effective provisional legal aid from the time of deprivation of liberty in the executing Member State, and at least until the competent authority has treated the application for legal aid and determined the eligibility and, if applicable, the appointment of the legal aid lawyer has taken effect.
31. The Member States may provide in their national law that the costs relating to provisional legal aid can subsequently be recovered from suspects or accused persons, or requested persons, if following the final decision on the application for legal aid, the person is not, or is only partially, eligible for legal aid under the Member State's legal aid regime.
Article 5 – Legal aid for requested persons
32. Member States shall ensure that requested persons in European arrest warrant proceedings have a right to access legal aid in the executing Member State upon arrest pursuant to the European arrest warrant until the surrender, or, in cases of non-surrender, until the decision on surrender has become final.
33. In order to ensure the effectiveness of the right to appoint a lawyer in the issuing Member State to assist the lawyer in the executing Member State, according to Article 10 of Directive 2013/48/EU on the right of access to a lawyer, Member States shall ensure that there is a right to access legal aid in the issuing Member State for requested persons that exercise this right of access to a lawyer, for the purpose of the European arrest warrant proceedings in the executing Member State.
34. The right to legal aid in the executing and issuing Member State may be subject to an assessment of the means of the requested person and/or whether it is in the interests of justice to provide legal aid, according to the applicable eligibility criteria in the executing or issuing Member State in question.
35. However, in the period leading up to the final decision on whether the requested person benefits from legal aid in the executing Member State, requested persons that are deprived of liberty are entitled to provisional legal aid in the executing Member State in accordance with Article 3 of this Directive.
Article 6 – Provision of data
36. In order to monitor and evaluate the effectiveness and efficiency of this Directive, there is a need for collection of reliable data by the Member States with regard to the exercise of the right to provisional legal aid in Article 3, and with regard to the exercise of the right to legal aid for requested persons in Article 4.
Article 7 – Non-regression clause
37. The purpose of this Article is to ensure that setting common minimum standards in accordance with this Directive does not have the effect of lowering existing higher standards in certain Member States and the standards in the Charter and the ECHR. Since the Directive provides for minimum rules, Member States remain free to set standards higher than those agreed in this Directive.
Article 8 – Transposition
38. This Article requires that Member States must implement the Directive [18 months after its publication] and, by the same date, transmit the text of the provisions transposing it into national law to the Commission.
Article 9 – Entry into force
39. This Article provides that the Directive will enter into force on the twentieth day following its publication in the Official Journal of the European Union.
40. The objective of this proposal cannot be sufficiently achieved by Member States alone, since there is significant variation in the right to provisional legal aid for suspects or accused persons deprived of liberty, and for requested persons. As the aim of the proposal is to promote mutual trust, only action taken by the European Union will establish consistent common minimum standards that apply throughout the European Union. The proposal will approximate Member States' legislation with respect to provisional legal aid in criminal proceedings and legal aid in European arrest warrant proceedings. The proposal therefore complies with the subsidiarity principle.
41. In accordance with the principle of proportionality, this Directive does not go beyond what is necessary in order to achieve the relevant objectives. It has been carefully assessed if action should be taken at EU level, and if so, at what level and in what form. The Directive only addresses aspects on legal aid in criminal proceedings that have been identified as indispendable to complement and ensure the effectiveness of the rights in the Directive on access to a lawyer and to improve mutual trust between criminal justice systems. The Commission does not propose legally binding parameters on eligibility testing or on quality in the Directive. These elements are dealt with in a Commission Recommendation which complements this proposal.
This proposal does not have any impact on the EU budget.