Please click here for the ECBA comments and recommendations following the proposed instruments on legal aid (part of the five proposals in the field of procedural safeguards) published by the European Commission in November 2013.

The ECBA had already published its position paper “ECBA Touchstones - Minimum Standards for the right to Legal Aid” (click here for the document  or see below)  in June 2013, in anticipation of the proposal for a directive on legal aid.

Both papers are a result of intensive and careful consideration of the European Criminal Bar Association (ECBA) working group on Legal Aid composed of ca 10 practitioners from different jurisdictions all over Europe.
It was sent to Mrs Reding, Vice-president and Commissioner responsible for Justice, Fundamental Rights and Citizenship and to Oliver Tell, Director Unit B.1, Directorate General Justice on 12 May 2014.

Click here for the ECBA Position Paper (25 June 2013) which is the result of intensive and careful consideration of the ECBA working group on legal aid, composed of practitioners in criminal law from all over Europe.

A reply signed by Mr Selmayr, Head of Vice President Viviane Reding's (European Commission) private office was sent 2 July 2013.

The European Commission is working on a Directive on legal aid. Due to the huge differences in our legal systems it is a very complex but also a very important subject for the citizens of the EU: will they have access to effective legal assistance should they become suspect or accused of a criminal offence?

The ECBA is aiming to be closely engaged in the construction of the draft Directive. It is only through the input of practitioners in the field of criminal law, that the practical effectiveness of any new regulations can be ensured.  For this the ECBA needs to get familiar with the different systems of legal aid as in place in the different Member States of the EU.

The ECBA has prepared a questionnaire and have asked one or two of her members in each jurisdiction to fill it in.

A presentation was given at the ECBA conference in Tallinn and the final results will be presented shortly.

The European Commission is carrying out research into legal aid in criminal proceedings as part of the information gathering for the impact assessment to accompany the planned 2013 measure on legal aid (part of the Procedural Rights Roadmap).
If you would like to take part, please click on this link: http://www.cses.co.uk/surveys/legal-aid-study

It's important that the research team hear from practitioners so as to get a balanced view of the way legal aid is allocated and administered in the Member States, and any problems at national or local level. So far, the researchers have sent a questionnaire to Ministries of Justice, so the information they have to date reflects the government position. The ECBA has had access to that questionnaire and Ministry of Justice replies and has concerns that the replies do not always fully reflect the situation on the ground.

It's important that the information is complemented by information from practitioners with experience of how the system actually works in practice, especially where there is a gap between the theory and the reality, so please do take  the time to take part.

The study is being carried out on behalf of the Commission by CSES.

On April 27, 2012 at the UN Commission on Crime Prevention and Criminal Justice –  after quite extensive negotiations the Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems were adopted on Friday afternoon. This is a huge step forward in recognizing the importance of legal aid.

Click here for the text.

The final resolution and text will be available next week on the UN website and should also be adopted at the UN GA in December.

A Joint Project between the ECBA, Justice, and the International Commission of Jurists
European Commission Grant Application October 2009

Project AIMS:

1. To study real EU cases in detail over a two year period to identify the practical problems which occur in providing an effective defence;
2. To conduct a study in at least six chosen member states (presently the UK, Denmark, Sweden, the Netherlands, Poland and Italy), but to extend the number to others if the resources allow;
3. To form a link between lawyers working on a case in both the Requesting State and the Surrendering State, so that it is clear what the client’s instructions are and what the nature of the case is at every stage of the proceedings;
4. To gather evidence to assess whether there is a need for the “double defence” i.e. dual representation in cross-border cases, and whether without it miscarriages of justice and unfair trials are taking place;
5. To gather evidence to assess the need, if dual representation is necessary, for an EU-wide legal aid scheme.

Please click here for the whole text (PDF).

Methodology

1. To select Firms of Lawyers in each of the member states who regularly act in EAW cases, and task them to record the work completed in each case;
   
   
2. Where it is possible, to link Firms in both the requesting and the surrendering state to work on the same case, and to request them both to assist the Project on a joint basis;
   
   
3. We are asking that the Project work will be conducted on a pro bono basis, but each Firm taking part will obtain full credit and publicity from the work they complete.
   
   It is unlikely that there will be any funding available from EU Commission funds for the Firms who agree to take part in our Project because only limited funding for meetings, travel disbursements, small-scale conferences and publication will be allowed.
   
   We hope that Firms will feel able to feed information to the Project and to play a full part in it, since their work will in any event give rise to notes and record-keeping during their involvement in the case.
   
   The purpose of the Project is not only to assess the real difficulties that take place in the preparation and conduct of EAW cases, but to make clear to the EU Commission just how much time and effort goes into each case. We need to know about the problems, but we also need to know the scale of billable time and disbursements involved in each case.
   
   
4. Each member state taking part will have a Country Representative who will be from the national section of the International Commission of Jurists. These Country Representatives will be legally trained with human rights expertise. It will be their job to give advice and assistance where necessary, to provide coordination for the Project, and a link with those working in London.
   
   
5. Each Firm will appoint a spokesperson to meet with the Country Representative each month and discuss the cases that the Firm is preparing or conducting. Each case will be reviewed and assessed in the light of international human rights standards. Breaches of those standards or any other problems will be identified.
   
   
6. The case Reports will be submitted in English by the Country Representatives to London. They will then be collated by the Partners in the Project (Jonathan Mitchell, ECBA; Jodie Blackstock, JUSTICE; and Roisin Pillay, ICJ) into Reports at three, six, and nine months intervals, and they will be circulated to the participants.
   
   
7. An Interim Report will be produced at the end of twelve months. This will draw conclusions about the “double defence” system, the nature of the difficulties for the Defence that have emerged, and the nature of the funding (if any) that has been made available to the Defence during the currency of the cases. This Report will endeavour to provide an estimated legal aid budget per average case, and it will make Recommendations as to how the conduct of EAW cases might be improved.
   
   The Interim Report will be presented to the Commission at the beginning of June 2011, in anticipation of the Proposal for a Directive on legal representation and legal aid (Measure C on the Roadmap for Strengthening Procedural Safeguards for Suspects in Criminal Cases) due in July 2011.
   
   
8. The second year of the Project will continue to provide empirical evidence as in the first year. We will attempt to apply our Recommendations and expand the project to new member states where practicable.
   
   
9. A Final Report will be launched at a Conference in June 2012, or earlier should the legislative process require it, making recommendations that build upon those set out in G above.

We Need:

1. ECBA members who conduct EAW cases in the identified member states to take part in the project; AND/OR,
2. ECBA members to approach their contacts that conduct these cases and ask them to take part.

JONATHAN STUART MITCHELL, ECBA
JODIE BLACKSTOCK, JUSTICE 

22nd April 2010.

The ECBA has as one of its main aims to persuade the EU to set up a viable system of legal aid for Defence Lawyers in Europe. The reason for this is because procedural abuses in most of the EU states exist as a result of there being no or no adequate system of remuneration for defence lawyers to represent the defendant, the accused person, or the person under investigation.

The case-law of the ECHR has recently been improved to make it clear that the rights of the defendant do not start at the charging process or later, but when the accused is in the police station. The ECBA has already published a set of Codes of Practice to which member States should adhere in relation to when legal aid should be provided.

There is an almost universal recognition amongst EU defence lawyers that there should be a Common set of rules or a Framework Decision on the provision of Legal Aid in criminal proceedings, and especially those relating to European Arrest Warrants. Our ECBA members decided long ago that the only sensible solution to "cross-border" cases and EA Ws was that a defendant should have access to a defence lawyer in both the requested state and the requesting state.
The Joint Project currently in progress between the ECBA and the CCBE has entered the Final Report Stage, and further meetings are planned in October to put the finishing touches to it. The Project Steering Committee has consulted with more than 60 practising lawyers in three Member States, and has obtained the responses to written questionnaires from a further five member states. Unanimous agreement has emerged that lawyers are in the front line as far as protecting the rights of the accused person is concerned, and that the chief barrier to most of the problems lies in the absence of proper funding. The principle of "mutual recognition" is meaningless in practice when the provision of legal aid differs dramatically between member states, and this is starkly apparent in EA Wand cross-border cases.
The ECBA considers that this Project must find a way to improve the provision of Legal Aid for the Defence in criminal cases in the EU, and at the very least a Pilot Project must explore ways of establishing guidelines and an effective means for the delivery of legal aid to the accused in European Arrest Warrant and other cross-border cases.

JONATHAN STUART MITCHELL
Member of the ECBA/CCBE Joint Steering Committee
Member of the ECBA Advisory Board.

It is clear that Criminal Defence Lawyers in Europe need the following:

1. the ability to find a lawyer in another member state whom they can trust, who is suitably experienced, and with whom they can work;
2. a better system of networking and access to information, since whilst a reliance on personal contacts is better than using Lists or Directories of Lawyers, change is required;
3. swift and easy access to the relevant procedural law of the other state or states involved in the case, since the top priority is the immediate protection of the Rights of the accused;
4. proper funding for the Defence, since without it there will be no or no adequate defence at all. Best practice dictates that there should be two defence lawyers for the defendant, one in the prosecuting state, and one in the state from which the defendant is sought;
5. improved and swift access to the Case File, or proper Disclosure of all material upon which the Prosecution Case is based, or other documents available to the Prosecution which undermine the prosecution case, or which assist the Defence Case;
6. a form of training and education that does not involve too much loss of time away from work, or too much cost.

On the 7th October 2009 representatives of the ECBA and the CCBE will be joining with members of the EU Bars to discuss the above needs, and to agree on a Pilot Project which will help to find a remedy for these problems.

We welcome suggestions from you all as to how this could be achieved, and what you think would be a useful Pilot Project for us to be setting up.
A simple email to Jonathan Mitchell at This email address is being protected from spambots. You need JavaScript enabled to view it., or a short letter to me at : 25 Bedford Row, London WCIR 4HD, United Kingdom, would be gratefully received.

JONATHAN STUART MITCHELL
Advisory Board of the ECBA.

Please click here for a paper on a suggested code in regard with legal aid written by Jonathan Stuart Mitchell.

A study of the effectiveness of safeguards for the rights of suspects and defendants in the EU, particularly in relation to legal aid.

The ECBA is partner in an AGIS application filed in January 2006 for a subsidy to research  the state of criminal legal aid in the EU measured against the standards of the European Convention and the proposed EU framework decision on minimum standards.

This is a joint project between JUSTICE, a leading human rights organisation in the United Kingdom and the British section of the International Commission of Jurists, and the Faculty of Law of the University of Maastricht (Prof. Taru Spronken, co- chair of the Legal Development Committee of the ECBA) . It is undertaken within the context of an overall research programme established by a consortium of European institutions led by the Asser Instituut which is currently organising a project on the European arrest warrant and of which both Maastricht and JUSTICE are members.

The output of this project will be a report setting out the results. This will provide empirical information of a unique kind on the extent to which criminal legal aid is providing a safeguard which is ‘practical and effective’. This is the standard set by the European Court of Human Rights but substantial doubt exists as to whether many states actually meet it. The project will also analyse the way in which the European Union can be, and has been, complementary to the European Court of Human Rights in the practical enforcement of human rights obligations. This should be demonstrable from the experience of at least some of the new members during the period that they were monitored under the ‘Copenhagen criteria’ prior to membership.

The ECBA will facilitate the research, through the ECBA network.