The European Union Embraces a Common Approach to Legal Aid

If you are arrested and charged with a criminal offence in the European Union, your chances of having a lawyer paid for by the state depends not just on how much money you have, but on which of the EU’s 28 member states you happen to be in at the time.

In Belgium, for instance, only between 10 and 20 per cent of the population is eligible for legal aid; in Finland, the figure is around 75 per cent; in Italy just two to three percent; in Poland, it depends on the charge, and there are no clear criteria for eligibility; in Greece there is no legal aid during early investigation stage in police custody. In addition, most countries in Europe do not have effective quality assurance mechanisms; in many places, legal aid will be provided by a trainee lawyer.

All this should start to change, now the EU has passed a new directive on the right to legal aid, which should be incorporated into national legislation across the EU by May 2019 (with the exception of Denmark, Ireland, and the UK).

In the words of Frans Timmermans, vice president of the European Commission, the directive affirms that “anyone who is the subject of criminal proceedings has a right to legal protection and a lawyer they can afford. That is what the rule of law is about.”

Member states will now be required to provide legal aid to criminal suspects and accused persons without delay, at minimum prior to police questioning, investigation, and evidence gathering. Legal aid must also be available to people subject to a European Arrest Warrant, in both the executing and the issuing member state.

The new directive also establishes practical rules for how legal aid systems should operate, requiring an effective and competent legal aid authority that must make decisions diligently, respect the rights of the defense, and require member states to provide adequate funding and training of legal aid decision makers and lawyers. Member states are required to ensure that there is an effective legal aid system that is of adequate quality, and it establishes that legal aid services should be of a quality adequate to safeguard the fairness of proceedings, with due respect for the independence of the legal profession.

The directive is the last in a series of six directives on procedural criminal justice standards first envisaged in November 2009 by the so-called Stockholm roadmap. Ensuring access to legal aid is a crucial part of this vision—because it underpins the principle of “equality of arms” between prosecution and defense, is a foundation for the enjoyment of other essential fair trial rights, and ensures that the right to a fair trial is not reserved for those able to afford a lawyer.

Of the elements set out in 2009, the legal aid directive had perhaps the most difficult journey of all—reflecting the fact that the provision of legal aid has regrettably been seen by some governments as a potential financial burden. The initial draft advanced by the commission in 2013 proposed fragmented approach guaranteeing only provisional legal aid, to cover solely the initial stage of criminal proceedings—and leaving to national governments the question of how and when legal aid would be available later.

This approach risked undermining another part of the Stockholm vision, the 2013 directive guaranteeing suspects access to a lawyer; access to a lawyer is meaningless if you are unable to pay for the lawyer’s services. Ahead of negotiations on this proposal the council followed by adopting a similar position.

Luckily, this minimalist approach was ultimately countered by the European Parliament, which adopted a more ambitious counterproposal in May, 2015. That reflected in part the advocacy efforts of civil society, and in particular the Justicia European Rights Network—which includes the Open Society Justice Initiative. Justicia argued that the EU risked a two-tier system of rights, one for the rich and one for the poor, a view that was reinforced by the efforts of the European Parliament’s rapporteur on the issue, Dennis De Jong, who endorsed a comprehensive draft directive, including provisions for accessibility, eligibility, quality, and independence.

This was the essence of the final agreement between parliament, commission, and council (which represents the member states) reached this month, due in no small part to the leading role of the Dutch Presidency in pushing negotiations along during the first six months of this year to get the member states in the council to agree on a strong proposal.

In addition to advocacy efforts, the Justicia was in a position to provide critical input in the drafting process throughout. The only compromise that we regretted was the agreement to limit the guarantee of legal aid to cases in which the suspect or the accused has been physically detained by the police and in certain other situations.

It has been a long journey to get here. An initial effort by the EU in 2003 to legislate on procedural defense rights ended in failure in 2007. After the process was renewed in 2009, I myself was skeptical of the European Commission’s decision in 2010 to split the proposal for a measure on access to a lawyer and legal aid into two, leaving legal aid—the hardest part—to last. The commission argued that in the immediate aftermath of the financial crisis of 2008, governments would be even less receptive than before to making commitments to fund legal aid. In the end, the decision to leave the hard part to last paid off—leaving the European Union with the legal tools to create a more equitable criminal justice system where guilt and innocence is determined by the facts of the case, and not by how much money you have.