EU adopts rules to guarantee legal aid in criminal proceedings

Source: Council of the European Union (Council) i, published on Thursday, October 13 2016.

On 13 October 2016, the Council gave its final approval to the directive on the right to legal aid for citizens suspected or accused of a criminal offence and for those subject to a European arrest warrant.

The proposed directive lays down minimum rules concerning the right to legal aid for suspects or accused persons in criminal proceedings who are deprived of liberty, and in certain other situations. It also ensures that legal aid is made available in European arrest warrant proceedings, under certain conditions, in both the executing and the issuing member state.

"For a fair trial, access to a lawyer is essential. In defining the minimum requirements for the provision of legal aid, this directive will help to achieve this goal, for a justice accessible to all, irrespective of their income level. I also firmly believe that this will contribute to mutual trust between the European countries and therefore to improved cooperation in criminal cases."

Minister Žitňanská from the Slovak presidency

Compared to the Commission proposal, the scope of application of the directive has been broadened to include a right to legal aid at all stages of the criminal justice process, under certain conditions. The initial proposal foresaw only a right to provisional legal aid which was meant to cover solely the initial stage of criminal proceedings before a final decision on legal aid is taken.

To define whether a person is eligible to legal aid, EU countries will be able to use a means and a merits test. A "means test" aims at assessing whether the person effectively lacks sufficient resources to pay for legal assistance, while a "merits test" allows to assess whether the provision of legal aid would be in the interest of justice in the light of the circumstances of the case.

The text was agreed by the European Parliament on 4 October. The final adoption by the Council today ends the legislative procedure. Once published in the Official Journal, member states will have 30 months to transpose the directive to their national legislation.

The UK and Ireland decided not to "opt in" while Denmark has an “opt out” by default from justice and home affairs legislation.

Roadmap on procedural rights

This directive is the last legal text foreseen as part the roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings adopted by the Council in November 2009.

The objective of the roadmap was to ensure that any citizen involved in criminal proceedings in a Member State would benefit from certain minimum procedural rights across the European Union. This should also enhance mutual trust between judicial authorities in the European Union, and so encourage the application of instruments such as the European arrest warrant.

Five other measures have already been adopted on the basis of the roadmap:

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