TABLE OF CONTENTS

Executive Summary Sheet............................................................................................................. 4

1........... Introduction.................................................................................................................. 6

2........... Policy context............................................................................................................... 7

3........... Procedure and consultation of interested parties....................................................... 9

3.1........ Consultation of stakeholders........................................................................................... 9

3.2........ Studies and publications................................................................................................ 10

3.3........ Internal consultation and scrutiny of the impact assessment............................................. 11

4........... Problem Definition..................................................................................................... 13

4.1........ General problem........................................................................................................... 13

4.2........ Specific problem and its underlying causes..................................................................... 18

4.3........ The scale of the problem............................................................................................... 27

4.4........ Baseline scenario: How would the problem evolve all things being equal?....................... 27

4.5........ Does the EU have power to act?................................................................................... 28

5........... Objectives.................................................................................................................. 30

6........... Policy Options............................................................................................................ 31

6.1........ Discarded options......................................................................................................... 31

6.2........ Overview of policy options........................................................................................... 32

6.3........ Detailed description of the options................................................................................. 32

7........... Impact Analysis of Policy Options............................................................................ 39

7.1........ Policy option 1: Status quo............................................................................................ 39

7.2........ Policy Option 2: Low level of obligation........................................................................ 40

7.3........ Policy Option 3: Medium legal obligations..................................................................... 41

7.4........ Policy Option 4: High level of obligation........................................................................ 46

8........... Comparative Assessment.......................................................................................... 49

9........... Transposition, monitoring and evaluation................................................................ 51

ANNEXES

Annex I - Procedural Rights Roadmap........................................................................................ 54

Annex II - Text of the Directive on Access to a Lawyer............................................................... 58

Annex III - ECtHR digest case-law on legal aid in criminal proceedings........................................ 80

Annex IV - Detailed calculations on policy options 3 and 4.......................................................... 85

Annex V - Comparative table on costs per Member State: Options 3 and 4............................... 133

Annex VI - Legal Aid Spending in the Member States and % of suspected/accused persons entitled to legal aid 137

Annex VII - Current standards on eligibility testing in the Member States.................................... 140

Annex VIII - Moment at which the Right to Legal Aid arises...................................................... 144

Annex IX - Examples of when lack of mutual trust can hinder judicial cooperation...................... 146

Executive Summary Sheet

Impact assessment on a Measure on Legal Aid to Suspected and Accused Persons in Criminal Proceedings

A. Need for action

Why? What is the problem being addressed?

Mutual trust between Member States is undermined because there is insufficient protection of the right to legal aid of suspects or accused persons in the EU, despite the existence of common minimum standards stemming from the European Convention on Human Rights (ECHR). This lack of trust weakens judicial cooperation in criminal proceedings. Indeed, the right to legal aid is intrinsically linked to the right to legal assistance, which will become EU law with the adoption of the Directive on the right to access to a lawyer. This is so, since this right cannot be effective for persons without means unless the State provides legal aid ensuring legal assistance free of charge. There are two main underlying causes of this problem: 1) Insufficient access to legal aid in proceedings under the European Arrest Warrant (EAW) in the executing and issuing Member States; and 2) Legally aided assistance is not always available at the early stages of the proceedings, especially when a suspect or accused person is in police custody. Two further issues also have the potential to undermine mutual trust: 3) the eligibility criteria for legal aid that severely restrict its availability in practice; and 4) the poor quality of some legal assistance provided through legal aid.

What is this initiative expected to achieve?

The initiative aims to enhance mutual trust between Member States, so as to facilitate judicial co-operation in the EU by guaranteeing EU citizens common minimum standards of protection of the fundamental procedural right of legal aid in criminal proceedings. It will seek to 1) ensure that legal aid is available to persons subjected to an EAW in both the executing and issuing Member States; 2) enable suspects or accused persons who are detained to have access to legally-aided assistance ("emergency legal aid") at the first stages of the procedure; 3) promote effective access to legal aid for suspects or accused persons that do not have sufficient means (means test), where it is necessary in the interests of justice (merits test); 4) have Member States take measures to improve the quality of legally-aided services.

What is the value added of action at the EU level?

There is a need for EU action because 1) The problem has a cross-border dimension; if certain Member States do not respect the fundamental right to legal aid, this creates problems of trust in other Member States and hereby affects the system of mutual recognition and judicial cooperation in the EU; 2) People can be involved in criminal proceedings outside their own Member State, and the needs of these suspects or accused persons must be tackled at EU level. 3) The ECHR already sets some European-wide fair trial standards but its enforcement mechanisms cannot guarantee a sufficient and consistent level of compliance by Member States.

B. Solutions

What legislative and non-legislative policy options have been considered? Is there a preferred choice or not? Why?

Four policy options have been assessed: 1) Retention of status quo, which would involve taking no further action on EU level; 2) a soft law option suggesting awareness raising, capacity building, information exchange and development of best practice guidelines; 3) a legal instrument setting minimum qualitative standards through either (a) a recommendation or b) a Directive, or a combination of both; without setting out detailed prescriptive action, but leaving certain discretion to the Member States; 4) The most ambitious and prescriptive option would be to, through a Directive, provide detailed minimum harmonised criteria on access and quality of legal aid, to some extent going beyond ECHR standards.

Who supports which option?

In a Declaration at Council in June 2012, the Member States asked the Commission to present a legislative proposal on legal aid at the earliest. A number of Member States are attached to a binding legal instrument on legal aid (see e.g. FR, SE, BE) and the European Parliament is also in favour of a legally binding proposal. A number of NGOs and stakeholders such as CCBE, ECBA, Justice, Fair Trials International, Open Society are in favour of EU action. Some Member States (e.g. NL and DE) question the need for action at EU level.

C. Impacts of the preferred option

What are the benefits of the preferred option (if any, otherwise main ones)?

The benefit of the main options is that the right to legal aid for suspects or accused persons would be strengthened. By guaranteeing the protection of the fundamental fair trial rights of suspects or accused persons by strengthening the right to legal aid, mutual trust between Member States will be improved, which will ensure that the mutual recognition instruments and judicial cooperation in the field of criminal law will work smoothly. The main options would improve access to legal aid in European Arrest Warrant proceedings and ensure access to legal aid at the earliest stages of the proceedings. They should also help in making legal aid available to a larger number of persons by widening the eligibility criteria, and improve the quality of legally-aided assistance. While Options 3a and b are less prescriptive, Option 4 would set very high common minimum standards. If action is taken in legally binding form, as suggested in option 3b or 4, there would be a stronger possibility for enforcement and compliance. Would action be taken by a recommendation, this would leave more flexibility for the Member States. A combination of both legally binding and soft law measures could balance the needs for compliance and flexibility on different issues.

What are the costs of the preferred option (if any, otherwise main ones)?

The costs of the different options vary quite considerably. The financial and economic impact of option 2 would be rather limited and is estimated at a maximum of €23 million (mainly costs for training of legal aid providers and decision-makers, borne by Member States’ budgets). The cost of ensuring legal aid in EAW proceedings under Policy Options 3a and b would be €0.13-0.24 million; the cost of emergency legal aid would be between €52-81 million. Widening the eligibility criteria would cost an estimated €181-287 million, and improving the quality of legally-aided assistance would cost €13.4 million. These figures add to a total cost of €247-382 million. Option 4 would be in a higher range at around € 1.5-1.7 billion, mostly due to the costs of widening the eligibility criteria, which would amount to €1.4 billion. Legal aid in EAW proceedings would cost between €0.8-1.1 million; the cost of emergency legal aid would be €180-210 million; and improving the quality of legally-aided assistance would cost €13.4 million.

How will businesses, SMEs and micro-enterprises be affected?

Improving the quality of legally aided assistance by accreditation and training may have impacts on practising lawyers and law firms. No other impacts on business have been identified.

Will there be significant impacts on national budgets and administrations?

Almost all of the costs indicated above will be borne by national authorities. Significant cost savings could result due to fewer challenges to EAWs, and reductions in the lengths of pre-trial detention and trials, as well as the frequency of appeals.

Will there be other significant impacts?

Besides positive social impacts and the furthering of the protection of fundamental rights of persons subject to an EAW and suspects or accused persons in criminal proceedings, the establishment of common minimum standards on the right to legal aid in criminal proceedings will strengthen mutual trust between the judicial systems of the Member States, thereby facilitating the smooth functioning of mutual recognition and judicial cooperation in criminal matters in the EU.

D. Follow up

When will the policy be reviewed?

The Commission envisages carrying out specific empirical studies with an emphasis on data collection 3-5 years into the application of the instrument and on that basis it might review the policy.

COMMISSION STAFF WORKING DOCUMENT

IMPACT ASSESSMENT

Accompanying the

Proposal for Measures on Legal Aid for Suspects or Accused Persons in Criminal Proceedings

1. Introduction

This impact assessment is for a measure on legal aid for suspects and accused persons in criminal proceedings. This measure aims at setting common minimum rules on the right to receive legal advice fully or partially free of charge. This will strengthen the right to a fair trial in the European Union, ensure that the rights in Directive 2013/48/EU on access to a lawyer will be effective and it will benefit the overall quality of justice in the EU, improve the mutual trust between EU Member States' judicial authorities and thus facilitate judicial cooperation in criminal matters between the Member States.

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. meaning that you can benefit 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 defense 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 presumtion of innocence and the rights of the defence as set out in Article 48 of the Charter.

The existence of these common standards in the ECHR has proved not be sufficient to achieve the necessary level of mutual trust between EU Member States that is required for a smooth functioning of the area of justice.[1] In fact, despite common European and international standards[2], the national rules and practices on legal aid in criminal proceedings still display such divergences so that there are considerable shortcomings in the protection of the right to legal aid. The ability of indigent people who cannot afford to pay for a lawyer themselves to access free, timely and quality legal assistance underpins the equality of arms between defence and prosecution and is a foundation for other essential fair trial rights.

This impact assessment accompanies the Commission's proposal for Measures on legal aid for suspects and accused persons in criminal proceedings.

2. Policy context

Article 82 of the Treaty of the Functioning of the European Union (TFEU) states that the principle of mutual recognition of judgments and judicial decisions should be facilitated by means of minimum rules on procedural rights. Judicial cooperation needs to be founded on mutual trust and confidence between the different judicial systems and the perception that the rights of suspects and accused persons are not respected in every instance has a disproportionately detrimental effect on mutual trust and, in turn, on judicial cooperation.[3]

In this context, the Stockholm Programme[4] 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 six proposals contained in the Roadmap on Procedural Rights adopted by the Council of Ministers ("the Roadmap")[5], 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 Roadmap measures deal with distinct procedural rights or set of rights of suspects or accused persons which had been identified by Member States and stakeholders alike as needing to be strengthened by action at EU level, and thus has to be considered as a building-block for a whole edifice. The purpose of the whole exercise of the Roadmap is to ensure the right to a fair trial.

Procedural Rights Measures: · Translation and Interpretation · Information on Rights and Information about the Charges · Legal Advice and Legal Aid · Communication with Relatives, Employers and Consular Authorities · Special Safeguards for Suspected or Accused Persons who are Vulnerable · Green Paper on Pre-Trial Detention

It was following the proposals of the Commission that a Directive on the right to interpretation and translation and a Directive on the right to information in criminal proceedings and a Directive on access to a lawyer in criminal proceedings have been adopted[6]. Moreover, a Directive establishing minimum standards on the rights, support and protection of vicitms of crime has been adopted in October 2012[7].

While the Directive on Access to a Lawyer provides for the substantive right of access to a lawyer, it refers to national law relating to legal aid. The Roadmap provides that the right to legal aid should ensure effective access to the right to legal advice. For persons without means and in certain situations, for example during deprivation of liberty, access to a lawyer cannot be effective unless the State practically and financially provides legal aid ensuring the assistance of a lawyer free of charge. The ability of indigent people who cannot afford to pay for a lawyer themselves to access free, timely and quality legal assistance underpins the equality of arms between defence and prosecution and is a foundation for other essential fair trial rights. A right to legal aid is therefore needed to make the right of access to a lawyer as provided for in the Directive effective[8] and to strengthen mutual trust.

The right to legal aid to some extent contributes to strengthening the presumption of innocence, in the sense that it enables persons without means to benefit from access to a lawyer, which in its turn contributes to safeguarding the right not to self-incriminate oneself. Yet, by providing access to legal aid in criminal proceedings, one does not in itself strengthen the underlying principle of presumption of innocence and other aspects of it that would be needed to strengthen mutual trust, as is set out in the Impact Assessment on the Presumption of Innocence. In the same spirit, providing a right to legal aid for vulnerable suspects will help furthering their protection by making access to a lawyer effective by providing financial support from the State, but it will not strengthen other procedural safeguards which needs to be improved in order to boast mutual trust with respect to vulnerable persons, as provided for in the Impact Assessment on procedural safeguards for vulnerable persons in criminal proceedings.

3. Procedure and consultation of interested parties

3.1. Consultation of stakeholders

General principle and minimum standards for consultation of interested parties have been followed in relation to this initiative.

Stakeholders were consulted on several occasions. The Commission has had regular and frequent bilateral contacts the European Criminal Bar Association (e.g. by participation in their sub-group on legal aid), Open Society Justice Initiative, JUSTICE, Fair Trials International, ICCL-JUSTICIA in the preparation of the impact assessment. They have shared contributions with the Commission in view of the forthcoming measures.[9]

In March 2009, a 2 day expert meeting on procedural rights, including the right to legal aid was organised. In a meeting on 3 June 2013, all interested 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.[10] 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.

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.

In the context of the study for the Impact Assessment, wide outreach with Member States' Ministries of Justice, NGOs in the Member States, lawyers' associations and legal aid boards was made in focus groups. In-depth interviews were carried out with lawyers in the bar associations, representatives from stakeholder organisations and Ministries of Justices in all Member States.[11] 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: England & Wales, Germany, Hungary, Spain, Sweden and France.[12] Moreover, an on-line consultation for legal aid providers in the Member States was carried out.[13]

Given these different consultations, a formal open public consultation did not take place.

In the focus group meetings a large majority supported EU action and found status quo on legal aid in criminal proceedings to be insufficient. Moreover, in a Declaration at Council in June 2012, the Member States asked the Commission to present a legislative proposal on legal aid at the earliest. In the Expert meeting it also appeared that there was support for some action with regard to legal aid.

A number of Member States are attached to a binding legal instrument on legal aid (see e.g. FR, SE, BE) and the European Parliament is also in favour of a legally binding proposal. A number of NGOs and stakeholders such as CCBE, ECBA, Justice, Fair Trials International, Open Society are in favour of EU action with respect to legal aid. Some Member States (e.g. NL and DE) question the need for action at EU level.

3.2. Studies and publications

The Impact Assessment relies on a number of studies carried out from 2007-2013, as well as studies and research from stakeholders and the Reports from the CPT[14] and the 2012 Report of the European Commission for the Efficiency of Justice (CEPEJ) report on the Efficiency of Justice.

An external study to gather evidence for this impact assessment was carried out by the consultants CSES and focused on comparatively studying the legal aid regimes in the 27 Member States and Croatia, identifying the problems and the policy options and costs of the various options.

The Commission's Criminal Justice Programme (JPEN) has funded several relevant studies, in particular the study on Pre-trial emergency defence (covering also the question of availability of legal aid pre-trial)[15], a joint study by the NGO JUSTICE, the University of West England and the Open Society Justice Initiative and Maastricht University (2007-2010)[16] (including detailed research on the standards on legal aid in the covered Member States), studies presented in 2012 by Fair Trials International on Effective Defence Rights in the EU[17] and on the practical operation of legal aid in the EU[18] and a report from 2013 by the European Rights Network Justicia on Compliance of Legal Aid systems with the European Convention on Human Rights in seven jurisdictions.[19]

Stakeholders have over the last years prepared a number of studies that have been relevant in the preparation of the Impact Assessment. In 2009, research from Maastricht and Ghent universities carried out a comprehensive review of procedural rights in the EU[20] for the Commission, including extensive evidence on the legal aid systems. Other relevant studies are: 'European Arrest Warrants: Ensuring an effective defence',[21] 'Effective Criminal Defence in Eastern Europe'[22], 'Improving Pre-trial Justice, The Role of Lawyers and Paralegals'[23].

3.3. Internal consultation and scrutiny of the impact assessment

An Inter Service Impact Assessment Steering Group was created involving representatives from MARKT, ENTR, BUDG, OLAF, HOME, EMPL, the Legal Service and the Secretariat-General. A first meeting was held on 27 September 2012, based on the Interim Report for the impact assessment study. A second meeting was held 6 May 2013. At the meetings and in subsequent communication with individual DGs, comprehensive feedback was received which has been taken into account throughout this report.

This Impact Assessment was examined by the European Commission's Impact Assessment Board on 3 July 2013. Further to the IAB's recommendations, additional information, explanations and data were provided. The revised report takes on board the recommendations of the IAB and introduced the following main modifications and clarifications:

· The problem definition has been clarified by better explaining the extent of the problems faced by the suspects and accused persons and the existing shortcomings (see Section 4, especially 4.2). It also more clearly explains the general problem and the policy context and relation to the other upcoming roadmap measure (Section 2 and Section 4.1),

· The subsidiairty analysis is strenghtened and the report more clearly sets out what rights are not sufficiently addressed on Member State and ECHR level (Section 4.1 and 4.2), what the ECHR standards are (Annex III) and the shortcomings with relying only the ECHR to ensure an effective right to legal aid, as well as reasons for the Member States' reluctance to change legal aid standards (Section 4.1),

· The options and impacts have been better presented and assessed, especially as concerns a possible combination of measure 3(a) and 3(b) (Section 8),

· The financial costs have been broken down and are presented per Member State (see Annex VI),

· Member States' opinions have been better integrated and the reasons for reluctance to introduce legal aid minium standards are also presented (Section 4.1.1). The views of different categories of stakeholders, including Member States, have been more extensively referred to throughout the Impact Assessment,

· The revised report also include performance indicators and the data collctions requests from the Member States (Section 9).

4. Problem Definition

4.1. General problem

An analysis of the legislation in place in the Member States, shows that the right to legal aid in criminal proceedings for suspects and accused persons is insufficient to ensure the right to a fair trial and to ensure that the right of access to a lawyer as provided for in the Directive 2013/48/EU on access to a lawyer is effective. The problem of insufficient protection of the right to legal aid (see section 4.1.1) is not sufficiently addressed by the current legal framework and thus, at present the legal framework does not sufficiently foster mutual trust at a level which will ensure the smooth functioning of the mutual recognition instruments in criminal proceedings (see section 4.1.2).

4.1.1. Insufficient protection of fundamental rights of suspected and accused persons

There is currently no EU law instrument that provides a right for suspected and accused persons to legal aid in criminal proceedings.[24] There are, nonetheless, legal aid provisions in all EU Member States, including Croatia, and there are common standards in the form of Article 47 of the EU Charter of Fundamental Rights, which is now legally binding on Member States, to the extent that they implement EU law.[25] Moreover, all EU Member States are signatories to the ECHR, with a right to legal aid for suspects and accused persons in criminal proceedings set out in Article 6(3)(c) ECHR. However, these standards do not, on their own, ensure the level of protection that is needed to ensure mutual trust in the EU.

Despite the existence of the ECHR, there is a high level of variation between the different Member States’ legal aid systems in law and practice, and there are shortcomings in the protection of the right to a fair trial in a number of Member States, especially as concerns the aspects that are further explored in section 4.2. The limited right to legal aid in some Member States[26] has the potential to undermine mutual trust and mutual judicial cooperation in the area of criminal proceedings and to frustrate the fair trial rights of the Charter, Articles 47 and 48.

Insufficient standards across Member States concerning access to legal aid undermine the effectiveness of the right of access to a lawyer, as set out in the Directive on Access to a Lawyer, foreseen for adoption later in 2013. The Commission's decision to not treat the two interrelated questions in the same measure was based on the need to take urgent action for a coherent legislative approach with regard to access to a lawyer, following divergent interpretations and practices in the Member States of the ECtHR Salduz ruling.[27] Thus, the Commission dissociated the question of legal aid to allow more time for preparation and assessment of impacts since the latter is more complex and was in need of a more detailed analysis.

It has continuously been stressed by several Member States and stakeholders during the negotiations of the Directive on Access to Lawyer, that it is difficult to completely dissociate the right of legal aid from the right of effective access to a lawyer and to make provision only for the latter and not the former.[28] Without common minimum standards on legal aid, the right of access to a lawyer as provided for in the Directive risks not being practical and effective. This has also been confirmed in the consultation in focus groups and with stakeholders.[29]

While all Member States have some system for legal aid in place, their legal aid systems in some Member States fall short of ensuring that the Right of Access to a lawyer becomes effective. The Directive e.g. gives a right to access to a lawyer before the suspect or accused person is questioned by the police or by another law enforcement as well as without delay after any deprivation of liberty. As will emerge from Section 4.2, this right of access to a lawyer is however not supported by a practical right to legal aid in all Member States, permitting to access to right to a lawyer as from this early point in time given for example the delays in deciding on a right to legal aid. The Directive also provides a right of access to lawyer in European Arrest Warrant proceedings in both the executing and the issuing Member State, and there is not a right to legal aid to support this dual representation in all Member States. Moreover, the narrowly defined eligibility criteria in certain Member States exclude persons with insufficient means and where the interests of justice would re quire representation from the legal aid system (see further on the extent of these problems in the Member States in section 4.2 below).

To ensure a minimum common level of protection there is a therefore need to raise the level of protection in a number of Member States, where the standard is particularly low[30]. Yet, Member States are not prevented from maintaining or introducing higher standards, as is stated in Article 82(2) TFEU. Any EU action taken with regard to the matter aims at reinforcing the protection of the fundamental right to legal aid in criminal proceedings, and should not be interpreted as lowering standards of protection already in place in the Member States.

The initative on the Right to Legal Aid and its relation to the Directive on Access to a Lawyer– completing the picture

The right to access to a lawyer for the suspected or accused person in criminal proceedings at the earliest appropriate stage of such proceedings is one of the most fundamental rights in order to safeguard his rights to a fair trial and right of defence within the criminal proceedings.

The right to legal aid is linked to the right to access to a lawyer. For persons without means and in certain situations, for example during deprivation of liberty, access to a lawyer cannot be effective unless the State practically and financially provides legal aid ensuring the assistance of a lawyer free of charge. While the Directive on Access to a Lawyer provides for the substantive right of access to a lawyer, it refers to national law relating to legal aid. In a Declaration attached to the Directive, the European Parliament and the Council call on the Commission to, at the earliest, present a proposal on legal aid.

Why is the ECHR not a sufficient answer? The existence of a common minimum standard in the ECHR, (as well as the non-binding UN guidelines on legal aid), appears as insufficient to address, on their own, the shortcomings in the protection of the right to legal aid. This is so as the ECHR contains only a very general statement on the right to legal aid in criminal proceedings and leaves a wide margin of how to understand the right to legal aid. Moreover, there is very limited case-law clarifying how to understand an effective right to legal aid. The ECtHR has shown a "hands-off" approach and has been reluctant to intervene into the way Member States ensure the right to legal aid in criminal proceedings, and it has applied a wide margin of appreciation in interpreting Article 6(3)(c) steering clear from clarifying e.g. what would constitute "insufficient means",[31] While it has provided that there must be right of access to a lawyer from the very beginning of the pre-trial phase in the Salduz case, there is not yet any conclusive judgment clarifying that this right must be granted for free, as no such case has yet been brought before the Court. This would, however, be the logical continuation of its case-law and is also how the Salduz jurisprudence has been implemented and interpreted in several Member States (see e.g. France and Belgium).

The insufficient protection of the right to legal aid is thus to some extent also due to the fact that case-law is interpreted differently in different Member States. As a case is delivered on the basis of a specific factual situation in a determined Member State, it can lend itself to different interpretations which make it difficult to derive a general rule applicable to other circumstances and Member States.[32] The Court has for instance clarified the merits test but as will be clear from Section 4.2, a number of Member States appear to still not comply with the Court's understanding of when it is the interest of justice to provide for legal aid.

This shows that it is problematic to rely on case-law to provide legally certain common minimum standards, as case-law is by its nature piecemeal and reactive. It leaves large room for interpretation and can result in very diverging interpretations in the Member States.[33] EU action would provide greater legal certainty by giving more detail, clarity and guidance on the right to legal aid. Such detail could be partly inspired by ECtHR case-law where such exists, for example on the merits test (see Annex III and Section 4.2.2).

Moreover, the absence of any effective enforcement mechanism to oblige and encourage States to change their national laws in the case of breaches of ECtHR decisions also contributes to the limited compliance of the ECHR. The ECtHR can impose damages for the breach in the case at hand, but there are no infringement proceedings or comparable mechanisms, as would be available in the EU system, to make the Member State, or other Member States with similar provisions, comply with a judgment. The high ratio of ‘repetitive decisions’ before the ECtHR in relation to fair trial issues in general (around 70 per cent of the Court's judgments in 2011[34]), indeed suggests that Member States are not reforming their national legislation after they are found to be in breach of Article 6 ECHR. There are also limitations for individuals wishing to bring a case before the ECtHR, and the reparations to remedy a violation generally consist of declaratory judgments, coupled with, depending on the circumstances, damages[35].

This shortage of strong enforcement powers in the convention system, coupled with the ECtHR's backlog that poses a serious risk to the effectiveness of the whole ECHR system,[36] also adds to the insufficiency of relying only on the ECtHR to ensure sufficient protection of the right to legal aid in the EU criminal justice area as being developed under the Stockholm Programme.

In conclusion, the insufficiency of the ECHR standards alone for providing minimum standards on legal aid for suspects and accused persons mainly lies in the general wording of those standards and the absence of guidance as to effective legal aid is concretely, rather than Member State opposition to what those standards are.

The obligation to provide legal aid flowing from Article 47 of the EU Charter of Fundamental Rights binds the institutions and bodies in all instances, but it only applies to Member States when they are implementing EU law. Thus, in the absence of EU law legislation in the field,[37] the Member States are not bound by the provision to provide legal aid in Article 47(3) of the Charter.[38] Furthermore even if such a link to EU law could be established, the extent of the application of Article 47 of the Charter and its scope has only been tested to a limited extent by the Court of Justice.[39] A clarification of the scope and contents of this principle at EU level would thus be necessary in order to provide predictability, legal certainty and to meet the policy objectives as concerns legal aid as indicated in the Roadmap.

According to stakeholders, the vast majority of those arrested in the EU have insufficient means to pay for a lawyer; sufficient legal aid is therefore a crucial part of the right to access legal advice and representation.

The reason why some Member States maintain a limited right to legal aid in criminal proceedings in their legislation is partly due to the above-mentioned fact that the guidance in international norms is limited and that it is difficult to subsume what exact requirements there are on the basis of the very limited case-law on the right to legal aid (See e.g. Annex III). Another reason is related to the costs of ensuring a high level of protection through providing legal aid. It has been noted, however, that while limiting legal aid costs might give an impression of saving costs, this results in indirect costs in other parts of the system that are more difficult to measure and are less visible. These are for example costs of pre-trial detention, the cost of the working of the police and the judicial system.[40]

4.1.2. Insufficient levels of mutual trust and mutual recognition between Member States as a result of deficient standards on legal aid

The lack of adequate standards on legal aid affects the mutual trust between judicial authorities and undermines judicial cooperation between Member States. This is detrimental to the mutual recognition of judicial decisions and judgments and other instances of judicial cooperation between Member States and undermines confidence in cross-border instruments such as the European Arrest Warrant (EAW),[41] the three Framework Decisions on Detention[42] and the Freezing and Confiscation Framework Decisions[43]. The underlying idea of the mutual recognition instruments is to ensure fast-track and simple procedures for cross-border law enforcement and cooperation. Such cross-border instruments build on the assumption that each Member State provides a system of justice which guarantees fair trial rights to a fairly similar degree; something that is not the case in practice.

If judicial authorities doubt the compliance with fair trial rights by another jurisdiction and believe that a suspect or accused person might not get, or has not got effective access to legal advice and legal aid, requests for judicial cooperation from that jurisdiction can be denied. This means that a person is not to be surrendered under the EAW, that a court might refuse to collect evidence requested by judicial authorities in another Member State and that a transfer of a prisoner request is denied as the receiving Member State has doubts as to the fairness of the trial underlying the conviction. As the principle of mutual recognition is the cornerstone of the area of justice, it is necessary to enhance mutual trust for the effective functioning of the area of Freedom, Security and Justice.

The limited number of EAW requests that finally are delayed or unsuccessful does not mean that judicial cooperation runs smoothly or that there is no strain in the confidence and trust that Member States and their citizens place in each other's criminal justice systems.[44] The limited possibility for refusals in the framework decision itself is justified by the aim of providing a ‘fast-track’ extradition procedure, but that only works in practice if the standards of protection comply with an adequate minimum level, so that mutual trust is present.

In practice, the system of mutual recognition often works sub-optimally as the swift operation is hampered by numerous challenges and appeals, resulting in additional costs and delays[45], partially due to long to complex and long drawn investigations into the systems of other Member States in such situations. Annex IX contains several examples of cases where insufficient trust in the respect of fair trial rights by another Member State caused such costs and delays. Ultimately this situation prejudices the resolution of a cross-border case for all parties involved, be it the suspected or accused, the victims or the general public.

There are also other indicators of the lack of mutual trust in the fair trial rights of other Member States of the public at large, such as the negative media attention that insufficient or denied access to a lawyer as a result of shortcomings in the legal aid system. This has come to light in a number of cases, which, although being single cases, have adverse effects on the reputation of a Member State and it only takes one case to erode trust.[46]

4.2. Specific problem and its underlying causes

The specific problem identified by stakeholders and in the Study is that there is insufficient access to effective legal aid for suspected and accused persons in the EU, that are detrimental to the mutual trust and the smooth working of the mutual recognition system. There are four underlying issues where there appear to be gaps in the current standards and where an EU initiative could have added value. The two main underlying issues of the problem are:

· Insufficient possibilities to access legal aid in extradition proceedings under the EAW in the Member States,

· Legally aided assistance is not always available at the early stages of the proceedings, especially before a decision on legal aid has been made, although the right of access to a lawyer applies from the time a person is suspected;

In addition, there are two further issues that also have potential to undermine mutual trust:

· Too restrictive eligibility criteria to qualify for legal aid;

· Shortcomings in quality and effectiveness of legal assistance provided through legal aid schemes.

4.2.1. Insufficient possibilities to access legal aid in extradition proceedings under the EAW in the Member States

The Directive 2013/48/EU on access to a lawyer provides a right to dual representation in extradition proceedings under the European Arrest Warrant (EAW).[47] As such proceedings are not considered as “criminal proceedings”, they are not covered by the ECHR, but they are covered by the Charter of Fundamental Rights. Without EU action, there would not be any common minimum standards on the right to legal aid in EAW proceedings.

When a person is arrested on foot of an EAW he/she has the right to access a lawyer in the executing Member State for the extradition proceedings.[48] With the entry into force of the Directive on Access to a Lawyer, there will also be a right to have a second lawyer in the Member State that issued the EAW. The role of this lawyer in the course of the EAW proceedings in the executing state is ancillary, and aims at assisting the lawyer in the executing Member State, for example by providing information about the legal situation and the case-file in the issuing state. Access to a lawyer and legal aid in respect of the criminal proceedings underlying the EAW in the issuing state will be determined by the rules applicable in that Member State.

The Directive on Access to a Lawyer does not address the issue of legal aid and thus, it does not provide for a right to legal aid to be assisted by a lawyer in the executing or issuing Member State. At present, no Member State appears to provide the right to obtain legal aid for a lawyer in the issuing Member State for liaising with the lawyer in the executing state, as such a right of access to a lawyer does not exist.[49]

While the substantive issue of the right of access to a lawyer in EAW proceedings is addressed in the Directive on Access to a Lawyer and reflects the acceptance of its added value for the need to boast mutual trust in the EU, the fact that the entitlement to legal aid is still lacking in some executing and issuing Member States will affect the effectiveness of this right and its consistent application. This has been underlined by a large number of practitioners in the stakeholder consultations.[50] While the Directive on Access to a Lawyer ensures that there is access to a lawyer, this right will not be effective and available to everyone unless legal aid is provided.

A consequence of the absence of legal aid in the issuing Member State is that the lawyer in the executing Member State is unable to ascertain if the correct procedure was followed and whether there are grounds to refuse the EAW according to Articles 3-4 of the Framework Decision. To render the right of access to a lawyer in EAW proceedings effective by also providing legal aid is important, as allowing the lawyer in the state of execution to establish the circumstances of the EAW reduces the likelihood of inappropriate or erroneous EAW requests improves the cooperation from the individual and saves police and court time, as if the defence lawyer in the executing state does not have sufficient information about the situation in the issuing state, he will be very likely to advise his client to resist the EAW request.

It has also generally been noted that ensuring legal advice in the issuing Member State, free of charge where need be, can save Member States costs.[51] A person who gets legal advice in the executing and issuing Member States might agree to extradition, and is less likely to appeal against the extradition, something that delays the process and hampers the effective and smooth working of the EAW system. The unavailability of legal aid in both the issuing and the executing state of an EAW can prejudice the rights of the defendant in extradition proceedings and undermine the mutual trust necessary for the smooth working of this instrument.

European Arrest Warrant: need for legally-aided assistance in both executing and issuing Member State Alan Hickey, a lorry driver, was convicted in France of people-trafficking and sentenced to serve 18 months in prison in December 2009. While in prison in France, Alan found out that Belgium had issued a European Arrest Warrant against him. Alan was not given clear information about the Belgian charges and was concerned that they related to the same matter for which he had been sentenced in France. This should be a bar to extradition on “double jeopardy” grounds. However, Alan’s extradition was ordered before further information could be gathered from Belgium. Once in Belgium, Alan’s concerns about double jeopardy were vindicated. The judge at Alan’s trial found that some of the Belgian charges arose from the same events for which he had been convicted in France. Alan pleaded guilty to the other offence and was given a suspended sentence. Alan’s extradition in breach of the double jeopardy rule could have been avoided if he had been provided with effective legal representation and legal aid in both France and Belgium from the start.

4.2.2. Timing: Legally-aided assistance is not always available at the early stages of the proceedings

It is of utmost importance to have access to a lawyer as early on as possible in the investigative stages of the proceedings to protect the suspected person's fair trial rights, such as the right to remain silent and not to self-incriminate oneself.[52] The ECtHR[53] has underlined the importance of early access to legal advice seen the specific vulnerability of the suspect, accentuated if he is deprived of liberty. Early access to legal advice also safeguards against intimidation and physical ill-treatment.[54] Indeed, by implementing the ECtHR’s Salduz ruling in the EU, Directive 201348/EU on access to a lawyer provides a right of access to a lawyer from the moment when someone becomes suspected or accused of a criminal offence and thus before police interrogation.[55] Several Member States, e.g. Belgium and France, have implemented the Salduz jurisprudence ensuring that legally aided assistance is available for persons deprived of liberty from the very start of the detention and before any questioning. In only one jurisdiction (UK) does the legal aid system caters for providing legally-aided assistance at the early stages for all persons, whether they are deprived of liberty or not, when they are being heard in a police station.

In a number of Member States (10 MS – AT, NL, BE, CZ, LU, MT, SE, IE, FR, SK), the right to legal aid arises at the latest at the moment of initial detention.[56] There is thus a right for persons deprived of liberty to have access to legal aid. To ensure that the legal aid is available in practice at the first hours of detention, several of these Member States have set in place “emergency defence mechanisms” so that advice by sufficiently qualified legal aid providers is available before questioning, at times and in locations where suspects are being held, for example by a duty solicitor scheme operated by the bar association and without first carrying out an eligibility testing.[57] This seems to ensure that the right of access to a lawyer is rendered effective on the early stages, also for persons deprived of liberty.

However, in 12 Member States (BG, CY, DE, EE, EL, FI, HU, IT, PL, PT, RO, SI), there are shortcomings regarding ensuring an effective access to a lawyer free of charge at the earliest stages of the proceedings for persons who do not already have a lawyer. In 10 of these Member States, the right arises at the point of arrest or formal charge (CY, DE, EE, EL, FI, IT, PL, PT, SI, RO) (see further Annex VIII). This point in time often occurs after the right of access to a lawyer has materialised and moreover, the practical arrangement for a legal aid lawyer is often considerably delayed, as the appointment is made for example during the first court appearance, also in cases of deprivation of liberty[58] which is likely to be after questioning. This means that the right of access to a lawyer is only provided after a decision on legal aid is made and at a stage which is likely to be considerably later than the moment when someone becomes suspected or accused of a criminal offence and thus should be afforded right of access to a lawyer (see e.g. DE and PL where the judge makes the decision on legal aid at the first hearing); SI, where it is at the pre-trial questioning before the court; HU where it has been reported to be sufficient to send a fax to a legal aid lawyer to satisfy the obligation to provide legal aid or LV, where the law states that legal aid should not be given later than three days after detention)[59].

These shortcomings have been widely recognised by stakeholders.[60] Moreover, a number of reports by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) have in recent years illustrated how deficiencies in the legal aid systems of several Member States in practice hampers the access to legal assistance of suspects and accused persons at the early stages of the proceedings.[61]

This seriously undermines the core of the right of access to a lawyer as prescribed in the Directive 2013/48/EU on access to a lawyer and risks undermining mutual trust especially for EU citizens that are detained in other Member States. Without ensuring practical access to legally-aided services at their very first contact with authorities, suspected or accused persons, particularly when they are deprived of liberty, will risk being unrepresented during the most crucial first pre-trial stages. This phase includes the first interrogations at the police station until the formal decision on legal aid is made, the latter often being delayed due to time-consuming means testing.[62] Unless there is EU action ensuring that there is a right to legal aid that makes the right to access to a lawyer practically feasible at those early stages of the proceedings, the right of access to a lawyer will be merely illusory for those that have insufficient means and that do not already have a lawyer.

In Latvia, Section 66 Criminal Procedure Law provides “From the moment when a person is notified that he or she is recognised as a suspect, such person shall have the (right)… to utilise legal assistance ensured by the State if he or she with his or her own funds is unable to enter into an agreement with a defence counsel.” Legally aided assistance should furthermore be provided not later than within three working days after the suspect’s detention. However, the CPT report referred to allegations made to the investigating team of detained suspects having “no contact with their state-funded lawyers until the first court hearing. In Poland, there is in theory a right to legal assistance from initial detention. Before a lawyer can be appointed, the procedure requires an application for means-tested legal aid and this must be filed with the court hearing the case or sent to the court’s address by registered mail. As a result, it can in some situations take up to three weeks for the legal aid lawyer to be appointed. The following presents an example of the practical implications of this: On June 2, 2012, Mr. X was visited in his family home by the ABW (National Security Agency). The ABW detained him, questioned him and presented him to a prosecutor. The prosecutor and the ABW interviewed Mr. X several times during the initial phase. Mr. X appeared without a lawyer even though he was entitled to a state appointed lawyer because he had no means to appoint one himself. During these interviews, Mr. X made extensive self-incriminating statements. The Prosecutor – within 48 hours of the initial detention – filed a motion to the Regional Court to have Mr. X subject to pre-trial detention for 3 months. At the Court hearing Mr. X was not represented by a lawyer and the Court decided to detain Mr. X in pre-trial detention. Mr. X got access to a lawyer 2 months after his initial detention.

4.2.3. Restrictive eligibility criteria to qualify for legal aid

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." 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."

Member States use two conditions to determine whether a person has a right to free legal aid: the person has insufficient means (means test); and/or the interest of justice requires legal aid (merits test). There is a wide variation in how the eligibility testing is done in the Member States.

The differences between Member States' systems as regards eligibility criteria are as follows: 13 Member States have only a means test, 3 Member States have only a merits test (DE, SE, DK) and 12 apply both a means and a merits test.[63] The fact that Member States operate different models of eligibility is not in itself incompatible with the ECHR and the Charter.[64] This initiative does not aim at providing a harmonised EU model for eligibility testing, but to ensure that there is a sufficient level of protection to guarantee mutual trust when the Member State operates the model chosen. However, there is a broad divergence in how the interest of justice and the criterion of "insufficient resources" are understood in the Member States.

Means test: There is no guidance from the ECtHR as how to understand 'lack of sufficient resources'. Instead, the ECtHR has highlighted the need to take all particular circumstances in of each case into account when determining the financial circumstances.[65] Also the UN Guidelines highlight the importance of not applying too restrictive or arbitrary means testing.

The threshold set by the Member States operating a means test ranges from countries where the threshold of earnings is set so low so that less than 10% of the total population in principle qualify for legal aid, while in other Member States, 80-90% of the population would meet the means test, were they to be suspected or accused of a criminal offence.[66] The exact difference between the Member States' systems in this respect are further outlined in Annex VI and VII.

Interest of justice test / merits test: One of the issues relating to legal aid where there is guidance from the ECtHR is in relation to how one should understand the interest of justice test. In Quaranta (1991)[67] it was held that there are three factors to take into account, and consider together, but one of the three can on its own warrant legal aid: (1) the seriousness of the offence and the severity of the potential sentence;[68] (2) the complexity of the case; and (3) the personal situation of the defendant (for example vulnerable groups).[69] In the case Benham (1996), the Court held that "where the deprivation of liberty is at stake, in principle, the interests of justice call for legal representation." In that case the suspect risked a prison sentence of a maximum of 3 months.

The interest of justice test is more flexible than the means test and it is therefore more difficult to prima facie appreciate what percentage of the population qualifies under it. An analysis of the legislation in the Member States applying a merits test yet shows that the test is designed very restrictively in a number of Member States. Looking at the length of the custodial sentence that one must risk to incur in order to fulfil the interests of justice test, in a number of Member States it is considered to be in the interest of justice to provide legal aid only for custodial sanctions that are rather long (see. e.g. 1 year for DE and CY, 3 years for AT, 5 years for EL, HU, RO)[70]. This would appear to go against the principle set out in the Benham case which states that legal aid should in principle be provided in any case where deprivation of liberty is at stake.

Overall differences in the granting of legal aid between the Member States' systems: The share of criminal cases where a suspected of accused person is granted legal aid vary between 0.1% to 73 % in the 27 Member States (except DK) (average is 27 %) (see table in Annex VII). The very low percentage of cases that benefit from legal aid in certain Member States (e.g. HU, IT, CY, SI) shows that the threshold to qualify for the means test is set so low,[71] that persons that lack sufficient resources still will not qualify for legal aid, and that in a number of Member States, a suspected person will only meet the interest of justice test for the most serious offences.

Thus, the restrictively set criteria to benefit for legal aid, both as regards the means test and the merits test, may result in suspected or accused persons without sufficient resources and when it is in the interest of justice as defined by the EctHR, still do not benefit from legal aid. This has consequences on mutual trust and mutual recognition.

Benham v United Kingdom The applicant, Stephen Benham, became liable to pay a community charge known as the ‘poll tax’. The applicant did not pay the amount owed, and bailiffs visited his parents' house (where he was living), but were told that he had no goods of any value there or elsewhere which could be seized by them and sold in order to pay the debt. Under the relevant regulations, the authorities were empowered to apply to a magistrates' court for an order committing to prison a person who was found to have insufficient goods on which to levy outstanding community charge. The charging authority applied for such an order, and on 25 March 1991 Mr Benham appeared at the Poole Magistrates' Court for the inquiry required by the regulations. He was not assisted or represented by a lawyer, although he was eligible for legal advice and assistance before the hearing. The applicant was convicted by the magistrates. He faced a possible maximum penalty of three months' imprisonment, and was ordered to be detained for thirty days (the case was however overturned on appeal). The applicant submitted that the interests of justice required that he ought to have been represented by a legal aid lawyer when he appeared before the magistrates. The ECtHR affirmed that “where deprivation of liberty is at stake, the interests of justice in principle call for legal representation… In this case, Mr Benham faced a maximum term of three months' imprisonment… In view of the severity of the penalty risked by Mr Benham and the complexity of the applicable law, the Court considers that the interests of justice demanded that, in order to receive a fair hearing, Mr Benham ought to have benefited from free legal representation during the proceedings before the magistrates.”[72]

4.2.4. Shortcomings in quality and effectiveness of legal assistance provided through legal aid schemes

ECtHR has held that the State's obligation to provide free legal assistance is not fulfilled by merely appointing a publicly funded lawyer[73] but it must ensure that the assistance provided by legal aid lawyers is practical and effective, and of a certain quality. While the relation between a lawyer and the client is independent of the State, it has been held that national courts have a duty to determine whether the assistance by state-appointed counsel is sufficient to secure the fair trial guarantees,[74] and the State bears responsibility in ensuring quality and should intervene where failure to provide effective representation is manifest.[75]

Research has shown the damaging effect of poor legal advice to the credibility of the legal aid system, both with respect to emergency defence services and ordinary legal assistance.[76] In the Warsaw conference on the EU measure on legal aid, the low quality of legally-aided assistance and how to improve the situation was discussed.[77]

Nonetheless, in many Member States, there is little or almost no quality assurance in place.[78] 12 Member States require some special qualification or accreditation[79] to provide legally aided assistance, while in others it is sufficient to be a qualified lawyer (without specific knowledge of criminal law). This means that in a number of Member States you can be assisted e.g. by someone who has no or limited experience in criminal law matters and usually deals with family or property law. The problem of competence of legal aid providers has been substantiated in stakeholder reports.[80]

In ca. 2/3 of the Member States there is some method of monitoring the performance of legal aid lawyers with the aim to ensure the quality of the work (in 9 Member States legal aid lawyers are supervised by a professional association, in 8 Member States legal aid lawyers are supervised by the State or the courts, sometimes alongside professional organisations, and in 3 Member States there is peer review monitoring). Yet, in 8 Member States there is no formal supervision, apart from possibility of appeals or complaints (BG, CY, DE, EL, HU, IE, LU, NL).

Moreover, in a majority of the Member States (18 MS) the training requirements to carry out defence services are minimal or non-existent.[81]

In relevant literature[82] and in consultation with stakeholders[83] insufficient levels of remuneration are frequently asserted as a major reason for poor quality of legally aided services. CPT and SPT have noted that excessive workloads and low fees for services discouraging effect on legal aid lawyers.[84] Adequate remuneration, no matter the length or complexity of the case, is important for the obligation to provide an effective representation sufficient to secure the fair trial guarantees. The data on the total criminal legal aid expenditure and the vast difference between Member States (see Annex VI) is an indicator that in practice there are problems in compliance with the requirement of the ECHR to provide an effective and practical defence resulting from low levels of remuneration.[85] It can be identified that in a number of Member States the remuneration of a legal aid lawyer is much lower than that of a private practising lawyer (for example €5 in LT compared to €96, HU €10 per hour instead of €223, EE €32 instead of €150, IT remuneration is 25 % of the fees of a private practicing lawyer).[86]

Deborah Dark (shortcomings of the quality of defence in EAW cases ) In 1989 Deborah Dark was arrested in France on suspicion of drug related offences and held in custody for eight and a half months. Her trial took place later in 1989 and the court acquitted her of all charges. She was released from jail and returned to the UK. The prosecutor appealed against the decision without notifying Deborah or her French lawyer. The appeal was heard in 1990 with no one there to present Deborah's defence. The court found her guilty and sentenced Deborah to 6 years imprisonment. Again, she was not informed that an appeal had taken place, nor notified that her acquittal had been overturned. As far as she was concerned she had been found not guilty of all charges and was free to start rebuilding her life. In April 2005, fifteen years after the conviction on appeal, an EAW was issued by the French authorities for Deborah to be returned to France to serve her sentence. In 2008 Deborah travelled to Spain to visit her father who had retired there. On trying to return to the UK, she was arrested and taken into custody in Spain, where she faced extradition to France. A court appointed legal aid lawyer visited her and advised her that she had no option but to consent to extradition. However, a doctor who visited Deborah shortly afterwards advised her to resist extradition. Deborah took this advice and at the extradition hearing the Spanish court refused to extradite Deborah on the grounds of unreasonable delay and the significant passage of time.

4.3. The scale of the problem

Member States currently do not collect data on the number of proceedings in which insufficient access to a lawyer due to denied legal aid is complained about or the amount of decisions denying legal aid that have been appealed and upheld, or reversed by a higher court. It is therefore not possible to estimate with any accuracy the number of cases where suspects have no access to legal aid or where the legally-aided service is of low quality so that it impacts on the fair trials rights.

What one can conclude on the basis of the comparative analysis of the number of EU citizens that benefit from legal aid in their criminal proceedings in the EU Member States, is that it appears that there is a wide range (between 0.1% and 73% of criminal proceedings benefit from legal aid), with an average of 27 %. 17 Member States lie below the EU average.

4.4. Baseline scenario: How would the problem evolve all things being equal?

Directive 2013/48EU on access to a lawyer will have to be implemented in the Member States by 2016. Without any flanking measure ensuring publicly funded legal representation, the rights provided under that Directive will be governed exclusively by Member States’ domestic systems of legal aid, as well as the ECHR and the judicial oversight of the ECtHR. This means that the deficiencies in the legal aid system of several Member States are likely to continue hampering the right to a fair trial for suspects and accused persons, especially at the early stage of the proceedings (at the police station stage) and for legal advice in the issuing Member States of EAWs.

Considering the hands-off approach of the ECtHR with regard to most aspects of legal aid and the piecemeal development of case-law described in section 4.1.1, it is not likely that reliance on the ECHR will strengthen the protection of fundamental rights in order to ensure mutual trust on a sufficient level. The best that could be expected is that Member States would respond to particular developments in respect of the right to legal aid, but this would only be reactive, without any true supervisory powers by the Council of Europe or the EU and the reaction would be ad hoc. It is unlikely that such reforms would result in any common minimum standards or that all Member States would proceed at the same pace.

The expected further increase in the caseload of the ECtHR, as well as the fact that these cases only are the tip of an iceberg in an area where the very problem is the absence of a lawyer and legal aid, will continue to limit the effectiveness of legal aid to suspects and accused persons.

Nevertheless, through the adoption and national transposition of the Directive on Access to a Lawyer, the issue of legal aid is likely to be brought within the scope of EU law (Article 51 of the Charter). This would mean that the Court of Justice could assess the adequacy of the Member States’ criminal law legal aid regimes on the basis of Article 47(3) of the Charter. This access to future judicial review could lead to an improvement, but given the fact that the scope of Article 47(3) has only been tested to a limited extent in Court, any action will be reactive to individual cases being brought to the Court, and it is unlikely that this will result in a broad improvement in the short to medium term of the protection of fundamental rights and mutual trust.

From a wider EU perspective, the absence of common minimum standards on the right to legal aid will continue to cause concern to the judicial authorities in the state being asked to apply an instrument at the request of another Member State, where there are deficiencies in the legal aid system of this other Member State that undermine confidence in the effective respect of the rights to a fair trial. In the light of the current on-going reforms of criminal legal aid systems, in the future legal aid in the Member States could be reduced significantly. This could lead to a violation of fundamental rights of a sufficient level to be invoked to refuse judicial cooperation more systemically and impair mutual recognition as provided by Article 82 TFEU.

The need to improve mutual trust will become even more pressing with the implementation and application of the raft of EU judicial cooperation instruments besides the EAW, such as the three “detention” Framework Decisions, the Freezing and confiscation Framework Decisions, where the absence of legal aid in the underlying criminal proceedings in the executing State may raise doubts as to the respect of fair trials in that Member State. Indeed, mutual trust is needed to ensure a smoothly working mutual recognition system, where all the mutual recognition instruments will be correctly applied, especially instruments where access to a lawyer free of charge will be a fundamental part of the fair trial rights (such as in the European Investigation Order). Mutual trust would not be strengthened if no action on legal aid is taken.

Increased movement of citizens between Member States[87] will lead to a greater need for judicial cooperation in criminal matters between Member States in the future.

4.5. Does the EU have power to act?

4.5.1. The legal basis

The EU's legislative competence for laying down minimum rights in criminal procedure is set out in Art 82(2) (b) TFEU.[88] Pursuant to this provision, minimum rules concerning the rights of individuals in criminal procedure may be adopted by means of Directives, to 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. While Article 82 (2) (b) TFEU makes explicit reference to Directives, this legal basis would indeed also allow for adopting any less intrusive measure, as examined in the policy options, according to the principle the larger contains the lesser.

Any EU instrument will apply to all criminal proceedings, including purely domestic ones, irrespective of whether they present a cross-border element. While Art 82(2)(b) TFEU refers to cross-border proceedings, it has in relation to the previous instruments in the Roadmap been concluded that a precise, ex ante categorisation of criminal proceedings as cross-border or domestic is impossible[89] in relation to a significant number of cases: for instance, a purely domestic procedure may take on a cross-border dimension at a later stage, when the suspect flees to another country or when there is a need to gather relevant evidence in another Member State.

Moreover, the objectives can only be met if minimum rules apply to all criminal procedures. In order to improve mutual trust and judicial cooperation, judicial authorities need to be aware that sufficiently high fair trial standards apply across the board in the jurisdictions of other Member States. If Member States were at liberty to apply lower standards to purely domestic procedures, the requisite mutual trust between judicial authorities could not be boosted. As concerns the need to safeguard the fundamental rights of citizens, the enactment of minimum rules for cross-border procedure only, far from addressing the problem, would create two different classes of defendants in criminal procedure, one with more rights than the other. Such a distinction made on the basis of the cross-border nature of the procedure, would lead to unreasonable differentiation and would eventually be detrimental to the protection of fundamental rights. In addition, the Charter guarantees rights to everyone suspected of a criminal offence, whether involved in cross-border or purely national proceedings.

4.5.2. Subsidiarity: Why the EU is better placed to take action than the Member States

It is considered that there is a need for EU action based on the following factors:

(a) Mutual trust as a condition for mutual recognition: The EU is establishing its own, unique system of judicial cooperation based on the principle of mutual recognition throughout the EU. Such a novel system calls for a guarantee of minimum standards of fundamental procedural rights protection in the EU. The problem has a cross-border dimension because if certain Member States do not respect procedural rights, this creates problems for other Member States. For example, if a judicial authority is requested to execute a court ruling from another Member State where the standards in the proceedings have not been adequate, it may either refuse to do so, or may request additional information which would result in delayed execution and consequently delayed justice

(b) Free movement of persons: Persons can be involved in criminal proceedings outside their own Member State and the needs of those suspected and accused persons need to be tackled at EU level. In the European Union people are constantly travelling and moving across borders. Around 13 million Europeans live outside their home country, 10% of Europeans have lived and worked abroad during a period of their lives and 13% have gone abroad for education or training.[90]

These numbers show the importance of ensuring proper, effective action on the rights of those who get involved in criminal proceedings, in their own country or while travelling or living abroad. The EU must ensure that suspects and accused persons benefit from a common minimum level of protection and are confident that there is a right to an effective access to a lawyer and legal aid, should they be subject to criminal proceedings when abroad.

(c) Insufficient enforcement mechanisms under ECtHR: The ECHR already sets European-wide fair trial standards, but with respect to legal aid its case-law has been very scarce. Moreover, the ECHR's enforcement mechanisms cannot guarantee a sufficient and consistent level of compliance by its signatory States, including EU Member States. Similarly repeated censure by the CPT (which in some Member States has been repeated over the course of a number of visits) has not proved adequate to change the practice of Member States.

Moreover, the system of protection granted by the ECtHR is ex-post only. Ensuring justice in individual cases ex-post serves a different purpose from laying down generally applicable rules ex-ante and can never be said to be equivalent. There is no enforcement mechanism comparable to the EU infringement proceedings, if it is found that a Member State is in breach of the Convention. Moreover, the enforcement system of the ECHR suffers from a huge backlog of cases awaiting disposal at the ECtHR[91], so a remedy for the violation may come many years after. There are also practical difficulties in bringing a case, e.g. the requirement to pursue domestic appeals and the application to the ECtHR can be too expensive for some applicants in the absence of legal aid. As a consequence, many people whose rights have been violated never bring an action at the ECtHR.

5. Objectives

Objectives:

General: || · To guarantee for EU citizens an effective high-level standard of protection of fundamental procedural rights in criminal proceedings. · To enhance mutual trust thus facilitating mutual recognition of judgments and judicial decisions in the EU and improving judicial cooperation in the EU.

Specific: || · To ensure that suspected and accused persons, have access to and are afforded adequate legal aid throughout criminal proceedings, at a level that ensures an enhanced mutual trust, · To ensure that the right of access to a lawyer, as provided for by Directive 2013/48/EU on the Right of access to a Lawyer, for suspected and accused persons and persons subject to EAW proceedings is made effective through ensuring legal aid

Operational: || 1) To ensure that legal aid is available to persons subjected to an EAW, 2) To ensure access to legally-aided assistance ("emergency defence") at the first stages of the procedure before the formal decision on legal aid has been made, 3) To ensure effective access to legal aid for suspected and accused persons that do not have sufficient means (means test), and where it is necessary to ensure effective access to justice (merits test), 4) To ensure that Member States take measures to improve the quality of legally aided services.

6. Policy Options

The present initiative forms part of a package of measures for improving mutual trust. Only once all the measures envisaged in the Stockholm Programme are in place will it be possible to achieve the general objective.

In accordance with the Communication from the Commission on the Strategy for the effective implementation of the Charter of Fundamental Rights by the European Union[92], this Impact Assessment Report also examines the impact on the Fundamental Rights of the options proposed, in particular in the light of the 'fundamental rights check list' presented in the Communication.

All the policy options are intended to operate in the framework of the previous Stockholm programme and Roadmap Measures and have the same scope of application. In previous measures, suspected or accused persons has consistently been used as the category of persons falling within the personal scope of the action. This encompasses all persons who are involved in criminal procedure, against whom a suspicion that they have committed a criminal offence exists, irrespective of the terms used in domestic law. It encompasses also childrens and other vulnerable suspects. The personal scope also covers persons subject to EAW proceedings. The temporal scope for the other fair trial rights instruments is "from the time a person is made aware that he is suspected or accused of having committed a criminal offence until the conclusion of the proceedings". The latter term is understood to mean the final determination of the question whether they have committed the offence, including, where applicable, sentencing and the resolution of any appeal.

6.1. Discarded options

6.1.1. To set out a common harmonised EU standard for eligibility testing for the EU (i.e. require a cumulative means and merits test)

The option of introducing a common harmonised eligibility test, and require all Member States to introduce a cumulative merits test and means test has been discarded. This would restrict the protection of fundamental rights in a number of Member States as compared to the current situation. While the ECHR and the Charter contain a cumulative means and a merits test,[93] 16 Member States operate only one of the tests[94] and in those Member States, it is hence likely that access to legal aid is wider than what is required by the ECHR (provided that the test in question on the means or the merits is not too narrowly defined). Requiring these Member States to apply an additional criterion would restrict the circle of persons benefitting from legal aid compared with the situation today. The EU cannot do so in an instrument aiming at the protection of rights of suspected and accused persons; Member States must be able to maintain a higher level of protection.

6.1.2. To set down harmonised levels for remuneration of legal aid practitioners

The option to introduce some harmonised quantitative EU level of remuneration for legal aid lawyers as proposed by stakeholders has been discarded as it is not possible to assess what level of remuneration would be adequate given the difference in standards of living, the readiness of lawyers to carry out defence work, the complexity and lack of comparability of legal aid remuneration regimes and fees charged by lawyers when acting privately.

6.2. Overview of policy options

We have considered 4 options: retention of status quo (option 1) and three other policy options. The retention of status quo would involve taking no further action on EU level, while the 3 other options will improve the fair trial rights by bettering the right to legal aid for suspected and accused persons in the EU. The three options range from low level of obligation – medium – high level of obligation.

Option 1 - Status quo || Retention of status quo. No action at EU level.

Option 2 – Low level of obligation || Least ambitious option through practical measures: Combination of actions on capacity building, making information more easily available and exchange best practices between the Member States in expert group on the topic, with the possibility to compile such best practices into practitioners' guidelines.

Option 3 – Medium level of obligation || Legal instrument – sub-option 3(a) through a recommendation or sub-option 3(b) through a Directive, or a combination of both: partly setting minimum qualitative standards as provided by ECHR and the Charter, partly seeking to enhance predictability and raising the standard in some Member States. Goes beyond low intervention, without setting out detailed prescriptive action, by leaving discretion to the Member States in their implementation.

Option 4 – High level of obligation || The most ambitious and prescriptive option through a Directive providing detailed minimum harmonised criteria on access and quality of legal aid, to some extent going beyond the qualitative standards set out in the ECHR.

6.3. Detailed description of the options

Policy option 1: the status quo, has been presented in the baseline scenario (see Section 4.4).

Policy option 2: This option would consist of a number of non-statutory measures:

The action would aim at capacity building, e.g. by making funds, including EU funds under the Justice Programme 2014-2020, available for training of lawyers involved in providing emergency legal defence and ordinary legal aid services. Training would also involve staff from the competent authorities deciding on applications on legal aid (judicial authorities and legal aid bureaus). The delivery of training would remain the responsibility of Member States.

The action would also involve awareness raising. It would encourage the Member States to provide information to citizens confronted to justice systems and practitioners on the right to legal aid including in case of EAW proceedings, on websites (e.g. national ones and the EU e-justice portal) and leaflets (e.g. as concerns eligibility criteria, how and where to apply for legal aid, how to ask for review of the decision, possible responsibility of repayment).

It would also invite Member States to collect information on different aspects of legal aid (such as the means and the merits test, the rates of remuneration of legal aid lawyers, legal aid lawyers specialised in EAW proceedings) and to communicate the information to the Commission that will make such information available in a comparative format by a study (on a yearly basis).

The Commission would create an expert group on criminal legal aid at EU level, aiming at exchanging and establishing best practices on aspects of such as how to ensure a practicable emergency defence, an efficient administration of legal aid (e.g. independence of appointing authorities, time-limits, judicial review) and quality legal advice (qualification, training, possibilities for monitoring). On this basis, the expert group could instruct the production of best practice guidelines to be disseminated by the Commission.

Policy Option 3: goes further than option 2 in defining what the common minimum standards on legal aid at EU level and, to some extent, clarifying in a legal instrument the case law of the ECHR, for example by explicitly setting out the criteria to be used in the eligibility testing. The option also draws on existing standards such as the UN Recommendation, for instance as regards the eligibility criteria, emergency defence, and the quality of legal aid providers. This option has been split into two sub-options depending on the nature of the legal instrument through which it may be realised: Option 3(a) through a Recommendation; Option 3(b) through a Directive. These two sub-options may also be combined by providing for some elements in a binding legal instrument, while providing for the others in a non-binding instrument (see further Section 8).

Member States would need to provide legal aid in EAW proceedings, when they are the executing Member State or when they are the issuing Member State, subject to eligibility testing according to the law in the relevant Member State.

This Policy Option would require Member States to ensure that there is an emergency defence system[95] in place to ensure effective access to a lawyer and legal aid before the first questioning at police station for all persons deprived of liberty, including vulnerable suspects, until the formal decision on eligibility for legal aid is made.[96] It would, nevertheless, be possible for Member States to recover the sums spent on the emergency defence in case the formal eligibility assessment shows that the suspected or accused persons do not fulfil the criteria for legal aid. (i.e. the means and/or the merits test).

As regards the eligibility criteria for legal aid, this option would clarify that a case-by-case approach is needed in the assessment, and provide objective factors from the ECHR case-law and UN principles and guidelines (Guideline 1 para 40) that the competent authorities in the Member States should take into account when assessing the means (made on the basis of objective factors such as income, capital or family situation), and/or the merits test (seriousness of the offence and the severity of the potential sentence, the complexity of the case, and the personal situation of the defendant).[97] This Option would allow Member States to continue operating the model for eligibility testing that they have chosen (i.e. only a means test, only a merits test or a combined means and merits test), while still complying with common minimum criteria.

As concerns the quality of legal aid services,[98] Option 3 would require Member States to introduce accreditation and monitoring schemes, and ensure professional training for legal aid practitioners.[99] It would also provide that remuneration for legal aid practitioners needs to be proportionate to the case at hand.

Policy Option 4: would be legally binding and more prescriptive than option 3(b). It will provide more detailed criteria on access to legal aid, to some extent going beyond ECHR standards as it will lay down e.g. a harmonised means test. The obligations with regard to emergency defence and making legal aid available in proceedings under mutual recognition instruments would be more onerous on the Member States.

In EAW proceedings, access to legal aid would not be subjected to the national eligibility criteria, but should always be granted as the person is deprived of liberty and the situation thus is comparable to that of emergency defence. Moreover, operating a means and a merits test in cross-border proceedings meet practical obstacles likely to substantially delay the legal assistance while the person is in custody and the time limits under the EAW are running.

With regard to emergency legal aid, Option 4 would make this available to everyone before their first police station interview if a formal decision on legal aid has not yet been made, i.e. also persons at large would be able to benefit from free legal advice at the first stages of their criminal proceedings, subject to the possibility for the State to recover the costs if the subsequent eligibility assessment shows that they are not eligible for legal aid.

As regards the eligibility criteria, the Directive would provide a minimum income threshold (based on a % of the average income threshold in the relevant Member State) for each Member State.[100] Also the merits test would be more closely harmonised by setting out e.g. special categories of persons that always should be considered fulfilling the merits test (certain vulnerable suspects such as children) and it would also provide that the merits test would be fulfilled for all offences that carry a custodial sentence over a certain threshold under the applicable domestic law.

As regards the quality of legal advice under legal aid schemes, the option would be equal to Option 3b.)

General problems

Specific Objectives

Operational Objectives

Cluster of policy options

Comparative table of Policy Options 3-4

|| Policy Option 3 || Policy Option 4

Underlying cause 1: Insufficient possibility to access legal aid in extradition proceeding under the EAW in executing and issuing Member States Objective: To ensure that legal aid is available to persons subjected to EAW proceedings, both in the executing and issuing Member States

Legal Aid in EAW proceedings || Require Member State to ensure that legal aid is available in the executing Member State and in the issuing Member State, subject to a means and/or merits test, as applicable in the relevant Member State. || Require Member States to ensure that legal aid is provided in both the executing and issuing Member States, without a means and/or merits test.

Underlying cause 2: Timing – Legally aided assistance is not always available at the early stages of the proceedings Objective: To ensure access to legally aided assistance ("emergency defence") at the first stages of the procedure

Emergency defence || Require Member States to ensure a system of access to emergency legal aid available free of charge for persons deprived of liberty, without first having recourse to a means or merits test, where a suspect has access to a lawyer in accordance with Article 3 of the Directive on Access to a Lawyer, until release from detention or the formal decision on legal aid is made. Provide possibility for Member States to retroactively see repayment of the legal aid granted at this stage, in case the eligibility criteria for legal aid are not met in the subsequent assessment. || Require Member State to ensure a system of emergency legal aid available free of charge for all suspected and accused persons that are questioned by the police and that have a right of access to a lawyer under Article 3 of the Directive on Access to a lawyer, without the need for a means or merits test, until the formal decision on legal aid is made. Provide possibility for Member States to retroactively see repayment of the legal aid granted at this stage, in case the eligibility criteria for legal aid are not met in the subsequent assessment.

Underlying cause 3: Too restrictive eligibility criteria to qualify for legal aid Objective of EU action: To ensure effective access to legal aid for suspected and accused persons that do not have sufficient means (means test), and where it is necessary to ensure effective access to justice (merits test)

Eligibility criteria || Means test: Require that Member States ensure that the authorities making the decisions on legal aid take into account certain objective factors (family composition, income) when establishing whether the means test has been met. Merits test: Provide for minimum qualitative criteria to be respected when applying the merits test as per ECHR case-law and UN guidelines (seriousness of the offence, the personal situation of the defendant, severity of the potential sanction, the complexity of the case). Case-by case analysis: Ensure that rigidly set eligibility tests do not hamper fair trials rights, but that the Member States' systems ensure flexibility. Require a case-by-case approach. For the means test, it means that the actual possibility to pay in the case at hand is assessed (i.e. it might be more difficult to afford defence in a complex murder trial than in a shoplifting case). For the merits test, there must always be a possibility to have the whole situation assessed and it should not be decided only on the basis of the potential sanction. || Means test: MS that operate a means test must make legal aid available to everyone who meets the harmonised EU formula, based on a minimum income threshold, calculated per Member State. Merits test: Provide detailed harmonised minimum rules for when the merits test is met, including when deprivation of liberty above a certain minimum length is in the scale of crime, and for certain vulnerable categories of suspects. Case-by case analysis: As in option 3.

Underlying cause 4: Shortcomings in quality and effectiveness of legal assistance provided through legal aid schemes Objective: To ensure that Member States take measures to improve the quality of legally aided services

Accreditation, training, quality control, funding of the legal aid system || Require Member States to ensure that there are mechanisms in place for quality control, and requirements of accreditation and continuous professional training for lawyers participating in the legal aid schemes. Require Member States to ensure that remuneration of legal aid services is proportionate to the complexity and duration of the case at hand and ensures the provision of effective legal assistance. || As Option 3, and in addition: Set out prescriptive requirements on remuneration for legal aid providers (taking account of different income levels in MSs). Require MS to pay legal aid lawyers within a set number of weeks following the closure of the case. DISCARDED

7. Impact Analysis of Policy Options

The options have been assessed on the basis of the effectiveness in achieving the specific and operational objectives in largely qualitative terms.[101] All policy objectives envisage equal treatment of EU and non-national EU nationals; third country nationals would receive the same protection as EU citizens in criminal proceedings throughout the EU.

7.1. Policy option 1: Status quo

Description: No action is taken on EU level.

Expected Impact

Effectiveness in meeting the policy objectives || · No incentive for any action to achieve common minimum standards for the right to legal aid or to improve mutual trust and the effective working of mutual recognition instruments. · Importantly, in many Member States, taking no decisive corrective measures would not meet the needs of those requiring publicly-funded legal assistance. The right of access to a lawyer guaranteed in the Directive on Access to a Lawyer would be likely to remain ineffective especially at the police station stage and for legal advice in the issuing Member States of EAWs. · The right to publicly funded legal representation will remain governed exclusively by the Member States’ domestic system of legal aid, as well as the ECHR and the judicial oversight of the ECtHR. Thus, divergences between the legal aid systems of the Member States would be likely to grow.

Impact on fundamental rights || · None. Access to legal aid will continue to be protected at Member State level, through the ECHR, and the Charter and the current problems of limited protection would continue which could risk declining standards of justice and increased risks of miscarriages of justice. · This situation would not provide adequate protection of the right to legal aid for suspects or accused persons in the EU or the right of access to a lawyer according to the Directive on Access to a Lawyer. There is a risk of a declining perception of the EU as a model in upholding human rights, especially fair trials rights.

Political Feasibility || · N/A

Impact on the legal system of Member States || · None. Domestic justice systems may evolve towards more convergence in the light of ECtHR jurisprudence but it is not likely that this will happen in the short to medium term.

Costs || · None. There are no immediate new financial burdens associated with this option. This option is also unlikely to lead to the reduction of costs of ECtHR and domestic appeals, re-trials and aborted pro