The Commission s proposals on Legal Aid. ECBA Conference Warsaw, 26 April 2014
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1 The Commission s proposals on Legal Aid ECBA Conference Warsaw, 26 April April 2014
2 Directive 2013/48/EU (Measure C1): Right to access to a lawyer Holds the rights, i.a.: To consult with a lawyer of own choosing, without delay In case of a detained suspect: to have the necessary arrangements taken to exercise effectively the right of access to a lawyer to have their lawyer present during police questioning to have their lawyer present at certain evidence-gathering acts to obtain legal advice in both the country where a European Arrest Warrant is executed and where it was issued 2
3 Lawyers understand: To get access to a lawyer, you must have a lawyer To have a lawyer, you must pay a lawyer If you can t pay a lawyer, you can t excercise your rights If you can t excercise your rights, the Directive is pointless UNLESS YOU GET LEGAL AID 3
4 Key issues: ECBA s Touchstones on Legal Aid: Independence of lawyers appointment of defense counsel by an independent organization or body free from governmental, political or financial influence on the basis of a duty roster 4
5 Key issues: ECBA s Touchstones on Legal Aid: Eligibility for legal aid free of charge from the moment defendants are arrested and during the period in which they are detained or otherwise deprived of their liberty Member States must ensure that all arrested persons receive immediate legal aid free of charge All decisions regarding eligibility for legal aid must be appealable to a court of law 5
6 Key issues: ECBA s Touchstones on Legal Aid: Remuneration and quality legal aid should only be provided by qualified practitioners the required qualifications of legal aid providers should be established and formally laid down remuneration levels should be sufficient to guarantee the availability of sufficiently qualified practitioners 6
7 Key issues: ECBA s Touchstones on Legal Aid: Binding legal instrument required All legal instruments regarding minimum standards on legal aid must be legally binding upon the Member States 7
8 The Commission`s approach: LEGAL AID 8
9 The Commission`s approach: LEGAL AID 9
10 The Commission`s approach: Legal aid Directive Legal aid Recommendation binding not binding 10
11 Directive on Legal Aid: Provisional legal aid Member States shall ensure that suspects, accused and requested persons deprived of liberty have the right to provisional legal aid (Art. 4.1) without undue delay after deprivation of liberty and in any event before questioning (Art. 4.2) until the final decision on legal aid has been taken and comes into effect (Art. 4.3) or until surrender to requesting state (Art. 5.1) to the extent necessary to effectively exercise the right of access to a lawyer in Directive 2013/48/EU (Art. 4.4) Note: nothing on how or by whom lawyer is to be appointed 11
12 Recommendation on Legal Aid: All other stuff Suspects should have a right to legal aid from the time they are suspected until conclusion of the proceedings Means test & merit test Decisions on legal aid should be made promptly by independent competent authority, with right to review Legal aid should be of high quality QA systems should be in place Accreditation of lawyers Training of lawyers and legal aid board staff Etc. Interestingly: nothing on remuneration 12
13 So, bottom line: Member States must provide provisional legal aid Everything else is optional 13
14 ECBA s position: Thought experiment: Apply the proposed system on the proposed Directive on EPPO Eppo prosecutions are to take place in national courts according to national law Some Member States will follow the Commission s recommendations on legal aid, others will not So: Defendants in EPPO prosecutions will get legal aid in some Member States, but not in other Member States 14
15 ECBA s position: All other stuff (now in the Recommendation) = Important stuff (should be in the Directive) 15
16 ECBA s position: In addition: We need a better definition of Provisional Legal Aid (now: until the final decision on legal aid has been taken and comes into effect ) Independent appointment of lawyers should be safeguarded Provisional legal aid should also be available in the issuing Member State of an EAW (now: only legal aid in issuing Member State) We need judicial review of decisions on legal aid Decisions on legal aid should take into account the effect of seizures and freezing orders 16
17 Final slide final remarks 17
18 The Commission s proposals on Legal Aid ECBA Conference Warsaw, 26 April April 2014
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