Legal aid in Europe as seen by lawyers

Nicola Canestrini

Madrid, may 8th 2015 - “European Citizens without defense” Avocats Europèens Dèmocrates

International Sources

Article 47 of the EU Charter legal aid is necessary to ensure effective access to justice

United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems 2012

Article 6 (3)(c) of the ECHR right to legal assistance

“Art 6 ECHR leaves to the State a free choice of the means to be used towards the guarantee of effective right of access to the courts.

The institution of a legal aid scheme constitutes one of those means (…)”

(ECHR, Airey v. Ireland, 1979)

Council Roadmap for procedural rights in criminal proceedings: (2009, measure “C”)

EP Proposal of directive on legal aid of 27 November

2013 COM(2013)824

“The different interpretation of the right to a fair trial,

including through legal aid (..) constitutes an obstacle for fair

and effective judicial co-operation in criminal

matters.”

“(..) differences between Member States in respect of the quality of legal assistance offered. This depends, inter alia, on the fees provided to lawyers for legal aid.

If these fees are too low, the lawyers will not be willing to devote enough time and efforts to provide for high quality legal aid.”

Cornelis de Jong, EP special rapporteur 2014

The right to free legal assistance is not satisfied by the formal appointment of a lawyer: this right must be practical and effective.

(ECtHR, Artico v. Italy, 1980)

The State does not have to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage visàvis the adversary’

(ECtHR, Steel and Morris v. the UK 2005)

(short) country study

art. 3, 24/3 it. Constitution

income related (€ 11.900/year approx)

criminal court / bar association

citizen and non citizen

only in litigation (civil, administrative & criminal)

up to 50% reduced legal fees for one (registered) lawyer of free choice

quality control  free choice of a lawyer? public defender? immigrants  differences criminal / other areas of law 

.. criticisms

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