The European Criminal Bar Association (ECBA) is a leading group of independent criminal defence lawyers in the Council of Europe

Marelle Attinger and Taru Spronken

This report was written by Taru Spronken and Marelle Attinger, Faculty of Law, Department of Criminal Law and Criminology of the University of Maastricht, the Netherlands and was funded by the European Commission. The Commission's aim with this study is to assess levels of provision of procedural rights currently afforded to suspected persons in criminal proceedings throughout the EU.The study consists of an examination of replies to a questionnaire. Specific reference is made to the procedural rights covered by the Proposal for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the EU of 28 April 2004, in order to establish which Member States meet the Commission's proposed minimum standards and to identify any potential lacunae in relation to each of the areas of procedural rights covered by the Proposed FD.

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A summary and the full report

1. the right to legal advice including the level of legal aid;
2.
the right to interpretation and translation for non-native defendants;
3.
the right to specific attention for persons who cannot understand or follow the proceedings;
4.
the right to communication and/or consular assistance;
5.
the way in which the suspect/defendant is notified of his rights (‘Letter of Rights’).

The report provides an overview of the level of provision per memberstate. Although the replies to the questionnaire were primarily based on formal legislation rather than on their application in practice, and some responses were not clear or complete, the overviews provide a broad picture of existing levels of provision. What in particular became clear is that the rights covered by the Proposed FD are implemented in very different ways in the different Member States.

 

The following general conclusions can be drawn.

The right to legal advice and the level of legal aid

In all Member States provisions exist guaranteeing suspects the right to choose their own lawyer, normally at all stages of criminal proceedings. The same applies to the arrangements for lawyers to be appointed or assigned to suspects when they do not know a lawyer themselves or cannot afford to pay one, although in the latter situation free choice of the suspect usually is restricted. There are, though, considerable differences concerning the moment in the criminal proceedings at which the lawyer is granted access to the suspect and/or the moment a lawyer is assigned to the suspect. Only Estonia, Latvia and Malta mention specific time limits. A number of Member States (9) mention time limits such as ‘from the beginning of the proceedings’ or ‘from the moment the person is charged’ or ‘after the police interview’, without specifying the exact time period. The remaining Member States do not mention a time limit at all. Only 7 Member States have an emergency scheme for providing legal assistance on a 24 hour basis. It is therefore difficult to draw conclusions as to whether legal aid is provided “as soon as possible” as mentioned in Art. 2 of the Proposed FD and it is even more difficult to establish if suspects have the right to receive legal advice before answering questions in relation to the charge. Only the response of Germany shows that if the suspect wishes to speak first with a defence counsel, the intended questioning must, pursuant to Supreme Court practice, be postponed. It should be noted that, according to the Polish response, the arresting official may reserve the right to be present during the suspect’s consultation with a lawyer, which infringes the right to private communication with defence counsel.

There are also differences between Member States in allowing defence counsel to be present during police interview. In 16 Member States the lawyer can be present during police interrogation, while in 8 Member States no such right exists. In some Member States confessions made without the presence of a defence counsel are inadmissible in evidence.

In granting legal aid some Member States apply a means test while others do not. As to the question what qualifications are required of lawyers participating in the legal aid scheme, the responses suggest that legal aid has to be provided by lawyers registered as members of the Bar. Only Greece, Hungary and the Netherlands require additional qualifications.

Most Member States did not specify the level of remuneration of assigned counsel in their responses to the questionnaire. Only Finland and Hungary gave a specification. As a consequence it remains unclear whether remuneration is enough to cover costs for legal aid and thus make participation in the legal aid scheme attractive for defence lawyers. In some countries, participation of lawyers in a legal aid scheme is obligatory, while it is not clear if this has to be provided pro bono.

 


The table beneath shows that the national budgets for legal aid in criminal proceedings differ considerably.

 

Member State

Year

Total budget for legal aid

Percentage used for criminal legal aid

Budget for criminal legal aid

Austria

2002

€ 13.990.000

60%

€ 8.394.000

Belgium

2000-2001

€ 25.280.000

 

 

Cyprus

 

 

€ 8.303.062.280

*We doubt that this figure is accurate.

2,5%

€ 207.576.557

*We doubt that this figure is accurate.

Czech Republic

2003

€ 1.128.958

 

 

Denmark

2003

 

 

€ 63.900.000

Estonia

2002

€ 1.538.795

97%

€ 1.492.632

Finland

2001

€ 48.800.000

70%

€ 34.160.000

France

2002

€ 4.887.212.121 (total budget for Ministry of Justice)

1,65% of total budget for Ministry of Justice

€ 80.639.000

Germany

 

 

 

 

Greece

 

 

 

 

Hungary

2003

 

 

€ 6.000.000

Ireland

2002

 

 

€ 29.978.000

Italy

2002

 

 

€ 38.269.456

Latvia

 

 

 

 

Lithuania

2005

€ 2.070.783

 

No separate amount for criminal legal aid.

Luxembourg

 

 

 

 

Malta

 

 

 

 

Netherlands

2002

€ 83.526.000

 

 

Poland

2005

€ 17.205.595 (total budget for Ministry of Justice)

1,84% of total budget for Ministry of Justice

€ 316.582

Portugal

 

 

 

 

Slovaquie

 

 

 

 

Spain

2002

€ 990.156.834 (total budget for Justice System)

2,78% of total budget for Justice System

€ 27.526.360

Sweden

2002

€ 65.909.090

88% of total criminal justice budget

€ 58.000.000

England and Wales

 

€ 2.343.310.032

6,07% of total criminal justice budget

€ 142.238.919

Scotland

 

€ 2.350.413.925

8% of total criminal justice budget

€ 118.033.114

 

The right to interpretation and translation

All Member States mention provisions containing a right to interpretation. As there was no specific question in the questionnaire regarding to free interpretation, it is not clear from the answers how this is regulated. Some Member States show in their responses, however, that interpretation is free in cases in which the suspect does not speak or understand the language of the proceedings. It remains unclear, however, from the responses whether there is a right to interpretation in the pre-trial phase and if the suspect receives free interpretation of legal advice.

The larger part of the Member States do not have an emergency scheme for linguistic assistance on a 24 hour basis. Several Member States require interpreters and translators to have certain qualifications [1]. Others require no specific qualifications, such as a linguistic education or diplomas, although it is difficult to derive concrete information on this from the responses.

Free translation of relevant documents is provided for in all Member States, but sometimes this is only done orally. Mostly it is not clear from the responses who decides on the relevancy of documents and if the defence has possibilities to request the translation of certain documents.

 

Vulnerable suspects 

When it comes to vulnerable suspects, there is only unanimity when children are concerned. On average, children from the age of 15 years are considered criminally liable. Some Member States however apply very divergent age limits. For example in Cyprus children from the age of 7 can be considered liable and in France, children from the age of 10 are criminally liable. Other categories of vulnerable suspects are mentally ill or handicapped persons, physically handicapped persons, and sometimes addicts and foreign nationals are mentioned. For minors, special proceedings are often applicable and/or assignment of counsel is compulsory. With the exception of Germany in case of juveniles, there are only few Member States that apply (all) special measures as proposed in Art. 10 and 11 of the Proposed FD to categories of vulnerable suspects.

 

Right to communication and/or consular assistance and Letter of Rights

In general, the responses do not cover the right to communication, as provided in Art. 12 and 13 of the Proposed FD, or the duty to inform the suspect of his rights in writing, as stipulated in Art. 14 of the Proposed FD. The responses of some Member States such as Austria, Ireland, Poland, refer to some kind of ‘Letter of Rights’ and England and Wales mention the right to consular assistance, however.

 

The report is available on line as pdf document 
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 [1] Austria, Czech Republic, Estonia, Hungary, Italy, Latvia, Luxembourg, Poland, England and Wales and Scotland.

 


Note: The analysis is limited to a selection of the responses considered as relevant to the five rights covered by the Proposed FD