Trial Rights

The right to legal aid in criminal proceedings

This recommendation seeks to improve the accessibility, quality and effectiveness of legal aid for suspects or accused persons in criminal and requested persons in European arrest warrant proceedings.

Commission recommendation of 27 November 2013 on the right to legal aid for suspects or accused persons in criminal proceedings.

This Recommendation aims to ensure effective access to a lawyer in criminal and in European arrest warrant proceedings, by strengthening the right to legal aid for suspects, accused or requested persons (hereafter citizens).

Member States should inform the Commission on the measures they take to follow up on the recommendation within 36 months of its notification.

Assessment of the eligibility for legal aid

Citizens should be granted legal aid if they lack sufficient financial resources to meet the defence and proceedings’ costs (means test), and/or when such aid is required in the interests of justice (merits test).

Means test: the assessment of the applicant’s economic situation should be made on the basis of objective factors such as income, capital, etc. and the cost of a defence lawyer.
Merits test: this should take account of the complexity of the case, the person’s social and personal situation, the seriousness of the offence and the severity of the potential penalty. When the penalty includes a custodial sentence, or when legal assistance is mandatory, the merits criterion should be considered as fulfilled.
Effectiveness of legal aid

An independent authority should decide promptly on the granting of legal aid, so as to allow citizens to prepare their defence. Citizens should have a right to review decisions rejecting their legal aid application.

Information on legal aid should be easily accessible and understandable by citizens, including information on how and where to apply, transparent eligibility criteria and information on the possibility of lodging complaints.

Quality of legal aid

A system of accreditation for legal aid lawyers should be put in place in all EU countries. This system should encourage lawyers to undergo continuous professional training.

EU countries must ensure that personnel involved in decision-making on legal aid in criminal proceedings receive appropriate training.

REFERENCES

OJ C 378 of 24.12.2013

Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (Official Journal L 294 of 6 November 2013).

Proposal for a directive of the European Parliament and of the Council on provisional legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest warrant proceedings (COM(2013) 824 final – not published in the Official Journal).

Right to information in criminal proceedings

Suspects or persons accused of a criminal offence in an EU country must be informed of their procedural rights and the charges against them.

Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings.

The directive sets out minimum standards for all EU countries regardless of a person’s legal status, citizenship or nationality. It is designed to help prevent miscarriages of justice and reduce the number of appeals.

KEY POINTS

Suspects and accused persons must be informed promptly, either orally or in writing, of several procedural rights. These include:

access to a lawyer,
any entitlement to free legal advice,
the right to be informed about the accusation,
the right to interpretation and translation,
the right to remain silent.

Furthermore, arrested persons must receive promptly a Letter of Rights from the law enforcement authorities (i.e. the police or justice ministry, depending on the EU country), written in simple language, providing information on further rights including:

access to case documents,
the right to inform one person and to contact consular authorities,
the right to urgent medical assistance,
to know the maximum period, in hours and days, that they will be detained before being brought before a judicial authority,
whether they can challenge the lawfulness of the arrest.

Where a person has been arrested under a European Arrest Warrant, they must be provided with a specific Letter of Rights by the law enforcement authorities reflecting the different rights that apply in that situation.

In addition, suspects or accused persons must be provided promptly with information about the criminal act they are suspected of having committed and (at a later stage) with detailed information on the accusation. If they are arrested or detained they must also be informed about the reasons for this arrest or detention. They must also have access to the case materials so they can exercise their rights of defence.

BACKGROUND

The directive entered into force on 21 June 2012 and had to be transposed by EU countries by 2 June 2014.

The directive is the second step in a series of measures which together are designed to establish minimum rules for procedural rights across the EU in accordance with the 2009 Roadmap for procedural rights. It follows a 2010 directive on interpretation and translation rights.

REFERENCES

Directive 2012/13/EU

Criminal proceedings — Presumption of innocence and the right to be present at the trial

Directive (EU) 2016/343 — strengthening certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings

It aims to guarantee:

the presumption of innocence of anyone accused or suspected of a crime by the police or justice authorities;
the right of an accused person to be present at their criminal trial.

The directive applies to any individual (natural person) suspected or accused in criminal proceedings.
It applies at all stages of the criminal proceedings, from the moment a person is suspected or accused of having committed a criminal offence to the final verdict.

Rights

The directive sets out fundamental rights of an accused or suspected person in a criminal proceeding:

innocent until proven guilty
EU countries must take steps to ensure that public statements by public authorities and judicial decisions (other than those on guilt) do not refer to the person as being guilty
EU countries must also take steps to ensure that suspected or accused persons are not presented as being guilty in court or in public by physically restraining them;
burden of proof on the prosecution;
right to remain silent and not to incriminate oneself;
right to be present at one’s own trial — a trial can be held in the absence of a suspected or accused person when one of these conditions is met
the person has been informed in due time of the trial and of the consequences of non-appearance
the person is represented by a mandated lawyer who they themselves were appointed by the state.

Remedies

EU countries must ensure that effective remedies are in place for breaches of these rights.
Where the right to silence or the right not to incriminate oneself has been breached, EU countries must ensure that the rights of the defence and the fairness of the proceedings are taken into account when assessing the statements concerned.

Where a suspected or accused person was not present at their trial and the above conditions were not met, they have the right to a new trial or to another legal remedy that allows the merits of the case to be determined anew (including the presentation of new evidence).

It applies from 31 March 2016. EU countries have to incorporate it into national law by 1 April 2018.

DOCUMENTS

Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings (OJ L 65, 11.3.2016, pp. 1-11)

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ L 280, 26.10.2010, pp. 1-7)

Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings ( OJ L 142, 1.6.2012, pp. 1-10)

Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings (OJ L 132, 21.5.2016, pp. 1-20)

Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings (OJ L 297, 4.11.2016, pp. 1-8)

Fair trial: suspects’ right to interpretation and translation in criminal proceedings

Directive 2010/64/EU — the right to interpretation and translation in criminal proceedings

—It establishes minimum EU-wide rules on the right to interpretation and translation in criminal proceedings and in proceedings for the execution of the European Arrest Warrant.
—It is the first step in series of measures to establish minimum rules for procedural rights across the EU in accordance with a 2009 roadmap. It was followed in 2012 by the directive on the right to information in criminal proceedings.

Right to interpretation

Interpretation must be provided free of charge to suspected or accused persons who do not speak or understand the language of the criminal proceedings including during:

—police questioning
—essential meetings between client and lawyer
—all court hearings and any necessary interim hearings.

Interpretation via videoconference, telephone or internet can be used if the physical presence of the interpreter is not required to ensure fairness.

Right to translation of essential documents

Suspected or accused persons who do not understand the language of the proceedings must be provided with a written translation of documents that are essential for their defence. This includes:

—any decision depriving a person of his liberty
—any charge or indictment
—any judgment.

The competent authorities may decide to translate any other documents on a case-by-case basis. The suspected or accused persons or their legal counsel may also request the translation of other essential documents.

In proceedings for the execution of a European Arrest Warrant, persons concerned must be provided with interpretation and with a written translation of the warrant, if necessary.

Quality of interpretation and translation

Translation and interpretation must be of sufficient quality to allow the persons concerned to understand the case against them and to exercise their right of defence. To this end, EU countries are required to set up a register of independent and qualified translators and interpreters, which should be available to legal counsels and relevant authorities.

ACT

On 15 November 2010. It was to be transposed into EU countries’ national law by 27 October 2013.

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ L 280, 26.10.2010, pp. 1-7)

Criminal proceedings — procedural safeguards for children who are suspected or accused of crimes

Directive (EU) 2016/800 on procedural safeguards for children who are suspects or accused persons in criminal proceedings

It establishes procedural safeguards* for children* who are suspected or accused of a criminal offence. The safeguards are in addition to those which apply to suspected or accused adults.
It is the fifth in a series of measures to establish minimum rules for procedural rights across the European Union (EU) in accordance with a 2009 Roadmap.

KEY POINTS

The key elements of the directive are that children have the right of access to a lawyer and the right to be assisted by a lawyer. The assistance by a lawyer is mandatory when they are brought before a court to decide on pre-trial detention and when they are in detention. A child who has not been assisted by a lawyer during the court hearings cannot be sentenced to prison.

EU countries must also ensure that deprivation of liberty, and in particular detention, is imposed on children only as a last resort and for the shortest appropriate period. Children who are detained should be held separately from adults, unless it is considered to be in the child’s best interest not to do so.

The directive also includes other safeguards, such as the right to:

be promptly informed about their rights and about general aspects of the conduct of the proceedings;
have information provided to a parent or another appropriate adult;
be accompanied by that person during court hearings and at other stages of the proceedings;
an individual assessment by qualified personnel;
a medical examination if the child is deprived of liberty;
protection of privacy during criminal proceedings;
appear in person at trial;
effective remedies*.

Judges, prosecutors and other professionals who deal with criminal proceedings involving children should have a specific competence or access to specific training.

It has applied since 10 June 2016. EU countries have to incorporate it into national legislation by 11 June 2019.

DOCUMENTS

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ L 280, 26.10.2010, pp. 1–7)

Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ L 142, 1.6.2012, pp. 1–10)

Legal aid in criminal proceedings

Directive (EU) 2016/1919 guaranteeing legal aid for suspects and accused persons in criminal proceedings

It establishes common minimum rules concerning the right to legal aid* in criminal proceedings across the EU.

It sets clear criteria for granting legal aid, quality standards and remedies in case of breach.

It complements EU rules on access to a lawyer and on procedural safeguards for children who are suspected or accused of crimes and does not affect the rights they define.

Scope

The rules apply to the following:

suspects and accused persons in criminal proceedings who are:
deprived of liberty;
required to be assisted by a lawyer in accordance with EU or national law and cannot afford it; or
required or permitted to attend an investigative or evidence-gathering act, including as a minimum the following: identity parades (a row of people, including a person who is believed to have committed a crime, who are shown to a witness for identification), confrontations, reconstructions of the scene of a crime; and
persons faced with a European arrest warrant (EAW).

They apply to all EU citizens and to all EU countries except Denmark, Ireland and the UK.

Right to legal aid in criminal proceedings

EU countries:

must ensure that suspects and accused persons who lack sufficient resources to pay for the assistance of a lawyer have the right to legal aid when the interests of justice so require;
may apply different test to determine whether legal aid is to be granted:
a means test (based on the resources of the person concerned, including income and fortune) and/or;
a merits test (based on the need to ensure effective access to justice in the circumstances of the case);
must respect the criteria set out to establish these tests, in particular that the merit is deemed to exist where the person is brought before a court for a decision on detention and during detention;
must grant legal aid without undue delay and — at the latest — before the person concerned is questioned by the police, by another law enforcement authority or by a judicial authority, or before the specific investigative or evidence-gathering acts are carried out.

Right to legal aid in EAW proceedings

Requested persons have a right to legal aid:

from the executing EU country*, upon arrest until they are handed over to the issuing EU country*, or until the decision not to surrender them becomes final;
from the issuing country, when they exercise their right to appoint a lawyer in the issuing country to assist the lawyer in the executing country in accordance with EU rules on the right of access to a lawyer, in so far as legal aid is necessary to ensure effective access to justice.

This right may be subject to a means test under the same criteria as for criminal proceedings.

Decision, remedy and vulnerable persons

Suspects, accused persons, and requested persons must:

be informed in writing if their request for legal aid is refused;
have an effective remedy under national law in the event of a breach of their rights under the directive;
see their particular needs taken into account if they are vulnerable.

BACKGROUND

This directive is the sixth and last of a package of legal instruments adopted in line with the EU Roadmap to strengthen procedural rights of suspected or accused people in criminal proceedings published in 2009.It has applied since 24 November 2016 and has to become law in the EU countries by 5 May 2019.

For further information, see:

DOCUMENTS

Successive amendments to Directive (EU) 2016/1919 have been incorporated into the original document. This consolidated version is of documentary value only.

Charter of Fundamental Rights of the European Union — Title VI — Justice Article 47 — Right to an effective remedy and to a fair trial (OJ C 202, 7.6.2016, p. 403)

Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (OJ C 295, 4.12.2009, pp. 1-3)