# EUR-Lex - 52013PC0824 - EN

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# 52013PC0824

**Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings /* COM/2013/0824 final - 2013/0409 (COD) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

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.

2.           RESULTS OF CONSULTATIONS WITH THE
INTERESTED PARTIES AND IMPACT ASSESSMENTS

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 http://ec.europa.eu/governance.

3.           LEGAL ELEMENTS OF THE PROPOSAL

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.

Article 3 Definitions

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.

5.           SUBSIDIARITY PRINCIPLE

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.

6.           Proportionality
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.

7.           BUDGETARY IMPLICATIONS

This proposal does not have any impact on the
EU budget.

2013/0409 (COD)

Proposal for a

DIRECTIVE OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

on provisional legal aid for suspects or
accused persons deprived of liberty and legal aid in European arrest warrant
proceedings

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular point (b) of Article 82
(2),

Having regard to the proposal from the
European Commission,

After transmission of the draft legislative
act to the national Parliaments,

Having regard to the opinion of the
European Economic and Social Committee,

Having regard to the opinion of the
Committee of the Regions,

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)       The
purpose of this Directive is to ensure the effectiveness of the right of access
to a lawyer by providing assistance by the Member States for persons deprived
of liberty at an early stage in the criminal proceedings and for requested
persons in surrender procedures pursuant to Council Framework
Decision 2002/584/JHA[11]
(European arrest warrant proceedings).

(2)       By
establishing minimum rules on the protection of procedural rights of suspects
or accused persons, this Directive should strengthen the trust of Member State in criminal justice systems of other Member States and can thus help improve
mutual recognition of decisions in criminal matters.

(3)       The Stockholm Programme[12] 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[13]
to strengthening the rights of suspects or accused persons.

(4)       Three measures on
procedural rights in criminal proceedings have been adopted to date, namely
Directive 2010/64/EU of the European Parliament and of the Council[14], Directive 2012/13/EU of the
European Parliament and of the Council[15]
and Directive 2013/48/EU of the European Parliament and the Council.[16]

(5)       Legal aid should cover the
costs of the defence and the proceedings for suspects or accused persons in
criminal proceedings and requested persons in European arrest warrant
proceedings.

(6)       The
scope and content of the right to access to a lawyer are set out in Directive 2013/48/EU.
A suspect or accused person in criminal proceedings should have the right of
access to a lawyer from the time when they are made aware, by official
notification or otherwise, by the competent authorities, that they are
suspected or accused of having committed a criminal offence, and irrespective
of whether they are deprived of liberty. That right applies until the
conclusion of the proceedings, which is understood to mean the final
determination of the question whether the suspect or accused person has
committed the offense, including where applicable, sentencing and the
resolution of any appeal.

(7)       One
of the fundamental features of a fair trial, as stated by the European Court of
Human Rights ("ECtHR") is that everyone charged with a criminal
offence is effectively defended by a lawyer, assigned officially if need be. The
fairness of criminal proceedings requires that a suspect should be granted
access to legal assistance from the moment of deprivation of liberty.

(8)       Directive
2013/48/EU provides that in cases where suspects or
accused persons are deprived of liberty, Member States should make the
necessary arrangements to ensure that they are in a position to exercise effectively
their right of access to lawyer, unless they have waived this right.

(9)       In
order for suspects or accused persons who are deprived of liberty to be in a
position to exercise effectively 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. Member States should therefore ensure that
effective provisional legal aid is available without undue delay after the
deprivation of liberty and before any questioning, and it should be available at
least until the competent authority has taken the decision on legal aid and, in
cases of full or partial rejection, this decision has become final, or, where the application for legal aid is granted, the appointment of
the lawyer by the competent authority has taken effect.

(10)     The Member States should ensure
that provisional legal aid is provided to the extent necessary and is not
limited in a way that prevents the suspects or accused persons from exercising effectively
the right of access to a lawyer as provided for in particular in Article 3(3) of
Directive 2013/48/EU.

(11)     Requested
persons in European arrest warrant proceedings who are deprived of liberty
should have the right to provisional legal aid upon deprivation of liberty in
the executing Member State, at least until the competent authority has taken
the decision on legal aid and, in cases of full or partial rejection, that
decision has become final, or, where the application
for legal aid is granted, the appointment of the lawyer by the competent
authority has taken effect.

(12)     Member
States should be able to provide that the costs relating to provisional legal
aid for suspects or accused persons deprived of liberty and costs relating to provisional
legal aid for requested persons can be recovered from those persons if, in the
subsequent assessment of whether they have a right to legal aid, they are found
to not meet the criteria to benefit from legal aid under national law.

(13)     To ensure the effective
access to a lawyer in the executing Member State for requested persons, Member
States should ensure that such persons have access to legal aid until the
surrender, or, in cases of non-surrender, until the decision on surrender has
become final. The right to legal aid 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 Member State in question.

(14)     To ensure that requested
persons can effectively exercise their right to appoint a lawyer in the issuing Member State to assist the lawyer in the
executing Member State, in accordance with Directive 2013/48/EU, the issuing
Member State should ensure that requested persons have access to legal aid for
the purpose of the European arrest warrant proceedings in the executing Member
State. This right 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 issuing Member State in question.

(15)     This
Directive provides for the right to provisional legal aid for children deprived
of liberty and to legal aid for children that are requested in European arrest
warrant proceedings.

(16)     When
implementing this Directive, Member States should ensure the respect of the
fundamental right of legal aid as provided for in Articles 47(3) of the Charter
and Article 6(3)(c) ECHR and ensure that legal aid is available to those who do
not have sufficient resources to pay for legal assistance when the interest of
justice so requires.

(17)     The
Member States should collect data showing how the right to legal aid for
suspects or accused persons and requested persons have been accessed. Member
States should also collect data on the number of cases where provisional legal
aid was provided for suspects or accused persons deprived of liberty, as well
as for requested persons, and the number of cases where this right was not
exercised. Such data should include the number of requests for legal aid in European
arrest warrant proceedings when the Member State acts as issuing and executing
State, as well as the number of cases where these requests were granted. Data
on the costs for providing provisional legal aid for persons deprived of
liberty and for requested persons should also be collected.

(18)     This
Directive should apply to suspects or accused persons regardless of their legal
status, citizenship or nationality.This Directive upholds the fundamental
rights and principles recognised by the Charter of Fundamental Rights of the
European Union and the European Convention on Human Rights, including the
prohibition of torture and inhuman and degrading treatment, the right to
liberty and security, respect for private and family life, the right to the
integrity of the person, the rights of the child, integration of persons with
disabilities, the right to an effective remedy and the right to a fair trial,
the presumption of innocence and the rights of the defence. This Directive should
be implemented in accordance with those rights and principles.

(19)     This
Directive sets minimum rules. Member States may extend the rights set out in
this Directive in order to provide a higher level of protection. Such higher
level of protection should not constitute an obstacle to the mutual recognition
of judicial decisions that those minimum rules are designed to facilitate. The
level of protection should never fall below the standards provided by the
Charter or the ECHR, as interpreted in the case-law of the Court of Justice and
of the ECtHR.

(20)     Since
the objectives of this Directive, namely setting common
minimum rules for the right to legal aid for suspects or accused persons in
criminal proceedings, cannot be sufficiently achieved
by the Member States and can, by reason of the scale of the measure, be better
achieved at Union level, the Union may adopt measures in accordance with the
principle of subsidiarity as set out in Article 5 of the Treaty of the European
Union. In accordance with the principle of proportionality, as set out in that
Article, this Directive does not go beyond what is necessary in order to
achieve those objectives.

(21)     [In accordance with
Articles 3 of Protocol No 21 on the position of the United Kingdom and Ireland
in respect of the Area of Freedom, Security and Justice, annexed to the Treaty
on European Union and to the Treaty on the Functioning of the European Union,
those Member States have notified their wish to participate in the adoption and
application of this Directive] OR [In accordance with Articles 1 and 2 of Protocol
21 on the position of the United Kingdom and Ireland in respect of the Area of
Freedom, Security and Justice, annexed to the Treaty on the European Union and
to the Treaty on the Functioning of the European Union, and without prejudice to
Article 4 of that Protocol, those Member States are not taking part in the
adoption of this Directive and are not bound by it or subject to its
application][17].

(22)     In
accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on the European Union and to the Treaty on the Functioning of
the European Union, Denmark is not taking part in the
adoption of this Directive, and is not bound by it or subject to its
application,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject-matter

1.           This Directive lays down minimum
rules concerning:

(a) the right to
provisional legal aid for suspects or accused persons in criminal proceedings who
are deprived of liberty, and

(b) the right
to provisional legal aid and to legal aid for requested persons who are subject
to European arrest warrant proceedings.

2.           This Directive complements
Directive 2013/48/EU. Nothing in this Directive shall
be interpreted as limiting the rights provided for in that Directive.

Article 2

Scope

This Directive shall apply to:

a) suspects or accused persons in criminal
proceedings, who are deprived of liberty and who have a right of access to a
lawyer pursuant to Directive 2013/48/EU;

b) requested persons.

Article 3

Definitions

For the purposes of this Directive, the
following definitions shall apply:

a) legal aid means funding and assistance from
the Member State ensuring the exercise of the right of access to a lawyer,

b) provisional legal aid means legal aid to
a person deprived of liberty until the decision on legal aid has been taken,

c) "requested person" means a person
subject to a European arrest warrant,

d) "lawyer"
means any person, who, in accordance with national law, is qualified and
entitled, including by means of accreditation by an authorised body, to provide
legal advice and assistance to suspects or accused persons.

Article 4

Access to provisional legal aid

1.           Member States shall ensure
that the following persons, if they so wish, have the right to provisional
legal aid:

(a) suspects
or accused persons in criminal proceedings, who are deprived of liberty;

(b)
requested persons deprived of liberty in the executing Member State.

2.           Provisional legal aid shall
be granted without undue delay after deprivation of liberty and in any event
before questioning.

3.           Provisional legal aid
shall be ensured until the final decision on legal aid has been taken and comes
into effect, or, where the suspects or accused persons are granted legal aid,
the appointment of the lawyer has taken effect.

4.           Member States shall ensure
that provisional legal aid is provided to the extent necessary to effectively
exercise the right of access to a lawyer in Directive 2013/48/EU on the right
of access to a lawyer, in particular having regard to Article 3 (3).

5.           Member States shall be
able to provide that the costs relating to provisional legal aid can be
recovered from suspects or accused persons and requested persons who do not
meet the eligibility criteria for legal aid as applicable under national law.

Article 5

Legal aid for requested persons

1.           The executing Member State shall ensure that requested persons have the right to legal aid upon arrest
pursuant to a European arrest warrant until they are surrendered, or, in cases
of non-surrender, until the decision on surrender has become final.

2.           The issuing Member State shall
ensure that requested persons, that exercise their 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, have the
right to legal aid in that Member State for the purpose of the European arrest warrant
proceedings in the executing Member State.

3.           The right to legal aid
referred to in paragraphs 1 and 2 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 Member State in question.

Article 6

Provision of data

1.           Member States shall
collect data with regard to how the rights in Article 4 and Article 5 have been
implemented.

2.           Member States shall by [36
months after publication of this Directive] and every two years thereafter,
send the Commission such data.

Article 7

Non-regression clause

Nothing in this Directive shall be construed as limiting or
derogating from any of the rights and procedural safeguards that are ensured
under the Charter of Fundamental Rights of the European Union, the European
Convention for the Protection of Human Rights and Fundamental Freedoms, or other
relevant provisions of international law or the law of any Member State which
provides a higher level of protection.

Article 8

Transposition

1.           Member States shall bring
into force the laws, regulations and administrative provisions necessary to
comply with this Directive by [18 months after publication of this Directive].
They shall immediately inform the Commission thereof.

2.           When Member States adopt
those measures, they shall contain a reference to this Directive or shall be
accompanied by such a reference on the occasion of their official publication.
The methods of making such a reference shall be laid down by the Member States.

3.           Member States shall
communicate to the Commission the text of the measures of national law which
they adopt in the field covered by this Directive.

Article 9

Entry
into force

This Directive shall enter into force on
the twentieth day following that of its publication in the Official Journal
of the European Union.

Article 10

Addressees

This
Directive is addressed to the Member States in accordance with the Treaties.

Done at Brussels,

For the European Parliament                       For
the Council

The President                                                 The
President

[1]               OJ C 115, 4.5.2010, p. 1.

[2]               Directive 2010/64/EU on the
right to interpretation and translation in criminal proceedings (OJ L 280,
26.10.2010, p. 1).

[3]               Directive 2012/13/EU on the
right to information in criminal proceedings (OJ L 142, 1.6.2012, p. 1).

[4]               Directive 2013/48/EU 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 (OJ L 294, 6.11.2013, p. 1).

[5]               Early
intervention may also help to reduce pre-trial detention (in France and Belgium the pre-trial detention rates fell by respectively 30% and 20% after introducing
similar schemes).

[6]               Proposal
for a Council Regulation on the establishment of the European Public
Prosecutor's Office, COM (2013) 534 final; 17.7.2013.

[7]               In reply, the Commission made
the following Declaration: "Il est de l'intention de la Commission de
présenter, sur base d'une analyse approfondie des différents systèmes nationaux
et de leur impact financier, une proposition d'instrument juridique concernant
l'aide juridictionnelle dans le courant de 2013, conformément à la feuille de
route visant à renforcer les droits procéduraux des suspects et des personnes
poursuivies dans le cadre des procédures pénales."

[8]               See e.g. "The
practical operation of legal aid in the EU", Fair Trials
International, July 2012, "Compliance of Legal Aid systems with the
European Convention on Human Rights in seven jurisdictions" covering
Bulgaria, Czech Republic, England & Wales, Germany, Greece, Ireland and
Lithuania, Report by Justicia Network, April 2013, ECBA Cornerstones on Legal
Aid, May 2013, CCBE Recommendations on Legal Aid.

[9]               Salduz v. Turkey, ECtHR, Grand Chamber, Judgment of 27 November 2008.

[10]             Dayanan v. Turkey Application No. 7377/03, judgment of 13 October 2009, paras 30-32.

[11]             Council Framework Decision 2002/584/JHA of 13 June 2002
on the European arrest warrant and the surrender procedures between Member
States (OJ L 190, 18.7.2002, p. 1).

[12]             OJ C 115, 4.5.2010, p. 1

[13]             OJ C 291, 4.12.2009, p. 1

[14]             Directive
2010/64/EU of the European Parliament and of the Council of 20 October 2010 on
the right to interpretation and translation in criminal proceedings (OJ L 280,
26.10.2010, p. 1).

[15]             Directive 2012/13/EU of the European Parliament and of
the Council of 22 May 2012 on the right to information in criminal proceedings (OJ
L 142, 1.6.2012, p. 1.)

[16]             Directive 2013/48/EU of the
European Parliament and of the Council of 22 October 2013 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 (OJ L 294, 6.11.2013, p. 1).

[17]             The
final wording of this recital in the Directive will depend on the position of
the United Kingdom and Ireland taken in accordance with the provisions of
protocol No 21.