What is the Directive on legal aid about?
The Directive lays down rules on how legal aid should be granted to suspects and accused people across the EU. It also includes provisions on legal aid for people faced with a European arrest warrant (EAW). It sets clear criteria for granting legal aid as well as provisions on ensuring quality standards for legal aid and remedies in case of breach.
The new rules will ensure that the right to legal aid is provided and is offered in a uniform way across the EU.
Which cases does the Directive apply to?
The new rules will apply when a person is deprived of liberty or required to be assisted by a lawyer in accordance with EU or national law and cannot afford it. In addition, the Directive applies to people who are required or allowed to attend certain evidence-gathering acts (notably the following: identity parades; confrontations; reconstructions of the scene of a crime).
All EU citizens will enjoy the rights set out by the Directive, if they are faced with criminal justice. This Directive will apply to all Member States, except Denmark, Ireland and the UK.
When is legal aid granted?
Legal aid will be grantedat the latest before questioning, especially by the police, or before certain investigative or evidence-gathering acts, as set out in in the Directive.
Under which criteria will legal aid be granted?
The Directive sets out clear criteria for legal aid to be granted.
Member States apply different tests to determine whether to grant legal aid: a means test (related to the resources of the person concerned including income and fortune), a merits test (related to necessity to ensure effective access to justice in the circumstances of the case) or both.
The new rules set out clear criteria to establish these tests:
- If a Member State applies a means test, it should take into account all relevant and objective factors, such as the income, capital and family situation of the person concerned, the costs of legal assistance and the standard of living in the relevant Member State. This will help them determine whether suspects or accused persons lack sufficient resources to pay for legal assistance.
- If a Member State applies a merits test, it should take into account the seriousness of the offence, the complexity of the case and the severity of the penalty at stake, in order to determine whether the interests of justice require granting legal aid. For this text, the directive clarifies that the person should benefit from legal aid as soon as he is brought before court for a decision on detention and during detention.
What can we expect from the rules agreed upon today?
The EU has a strong tradition of developing and promoting fundamental rights. The Charter of Fundamental Rights of the European Union (EU Charter) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) form the basis to protect the rights of suspects or accused people in criminal justice systems in the European Union.
The new rules aim to protect the fair trial rights of citizens. The cooperation between EU criminal justice authorities will be facilitated by similar rights and safeguards and rights in trials across the EU. The new EU law will complement two Directives recently adopted: the Directive on the right of access to a lawyer and the Directive on procedural safeguards for children involved in criminal proceedings. It will make sure that the rights contained in these Directives are effective rights also for those people who cannot afford a lawyer for themselves. The Directive rounds up the negotiations on a whole package of proposals introduced by the Commission in 2013 to ensure enhanced safeguards for defence rights.
What is the Directive on the right of access to a lawyer?
This Directive will ensure that a person can access a lawyer already at the time of police questioning and throughout criminal proceedings. It will also provide for confidential meetings and communication between the suspect or accused person and their legal representative and allow the lawyer to play an active role during questioning. In addition, the new rules will ensure that the suspect can communicate with the family or consular authorities if needed.
This Directive was adopted in 2013, and has to be implemented by Member States by 27 November 2016.
What is the Directive on procedural safeguards for children?
This directive gives specific rights to children involved in criminal proceedings in the European Union. It provides comprehensive protection at all stages of criminal proceedings.
Most importantly, children must get the help of a lawyer in serious and complex cases and whenever they are in detention. Children cannot be deprived of their liberty unless they have been assisted by a lawyer.
Children will also have the right to be assisted by their parents. An individual assessment of the family and social background for children is enshrined as a right in the directive. The specific needs concerning protection, education and social integration of children will be taken into account during trial and before sentencing.
These rights will apply across the EU as of 11 June 2019.
What is the Directive on presumption of innocence?
This aims to bridge the big disparities in the protection of the presumption of innocence in Europe.
It will strengthen the rights of all people facing criminal proceedings by making presumption of innocence effective in all Member States.
The Directive prohibits public references to guilt; it contains clear rules on the burden of proof (i.e. the burden of proof is on the prosecution and any doubt is to benefit the suspect or accused person); and includes the right to remain silent and the right not to incriminate oneself are protected. The Directive will also harmonise the right to be present at the trial, which is an important aspect of the right to a fair trial.
These rights will apply across the EU as of 1 April 2018.
For more information
Your rights if accused or suspected in the EU - factsheet
Procedural rights package:
- Directive on the right of access to a lawyer
- Directive on procedural safeguards for children involved in criminal proceedings