Unequal Assistance: How Criminal Legal Aid Varies across the European Union
By Zaza Namoradze & Marion Isobel
Since 2009, the member states of the European Union have been steadily trying to establish standard protections for the rights of people who find themselves under police investigation, or facing criminal charges. If citizens can move across the EU to live, work, and study—so the EU argues— should they not also expect to find the same level of fairness in the criminal justice system? As a result of this effort, recent EU legislation has required detainees to be given information about their rights in a language they can understand, and to be guaranteed early access to a lawyer.
Now the member states are embarking upon the interconnected but thorny question of access and eligibility to legal aid: interconnected because without legal aid, rights remain illusory for the majority of suspects who may not have the ability to pay for their own lawyer.
So to support the negotiations, due to start in early May, we have produced a set of fact sheets that show how radically different the experience of legal aid can be across nine different EU countries. Here are some of the findings:
- In Greece and Poland, legal aid only becomes available once a suspect has been charged by the police, but not during questioning and investigation.
- Hungary’s police have discretion over which legal aid lawyer to appoint, threatening the independence of legal aid, and risking corruption.
- Germany has no formal legal aid scheme (which would be paid for by the state), although everyone has the right to a court-appointed lawyer in serious cases. Anyone who is convicted is then required to pay the total costs of the case. As a result, many people take out legal insurance.
- In Italy all defendants are required to have a lawyer, and due to very low financial eligibility, only very few enjoy legal aid. Many people fall into debt to pay for their lawyer.
- The income ceiling on eligibility for legal aid can vary wildly; in Hungary, a person earning less than €1,140 per year is eligible; in Finland, partial legal aid, which might cover 25-75 percent of costs, is available for anyone earning less than €15,600.
- Some governments, such as France, track national spending on legal aid. In others, including Hungary and Poland, fragmented control through local courts produces no national data.
Further, many EU countries lack the institutional mechanisms needed to take a systemic approach to publicly funded legal aid services, while in the majority of countries there is no system for quality assurance or monitoring, leaving poor defendants at risk of receiving inadequate representation.
Lawyers’ fees for legal aid or court-appointed work are unreasonably low in several EU member states which lead to poor quality of assistance.
At the Open Society Justice Initiative, we believe that an effective system of legal aid is vital to ensure that everyone, regardless of economic status, is treated fairly by the law. We also argue that an efficient legal aid system, with proper monitoring of standards, is a vital part of an effective justice system, and that failing to invest in legal aid is a false economy—leading not only to the risk of unjust convictions, but to other costs such as lengthier trials and an over-use of pretrial detention for defendants who should be freed on bail but who lack proper legal representation to ask for it.
The EU has taken important steps along the road towards reform it first laid out in 2009. But if the reforms already undertaken are to have a real impact, they need to be supplemented with a comprehensive and strong EU directive on legal aid, covering the entire criminal justice proceedings.
Zaza Namoradze, director of the Open Society Justice Initiative’s Berlin office, oversees programs on legal capacity development, legal empowerment, legal aid reform, and access to justice.
Until September 2017, Marion Isobel was a legal officer with the Open Society Justice Initiative.