International and European standards International standards build on the assumption that legal aid is an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law and that it is a foundation for the enjoyment of other rights, including the right to a fair trial, and an important safeguard that ensures fundamental fairness and public trust in the criminal justice process. In regard to legal assistance for children, the prime consideration should be the best interests of the child. Legal assistance should be “accessible, age appropriate, multidisciplinary and effective, and […] responsive to the range of legal and social needs faced by children and youth” to prevent stigmatisation and adverse effects of being involved in the criminal justice system.16 Early and effective access to a lawyer, as well as effective assistance, are central to guaranteeing rights such as liberty and security, the right to defence, the right to information, the right to be presumed innocent, to be tried without undue delay (avoiding arbitrary and excessive pre-trial detention), nondiscrimination and safeguarding against ill-treatment. Hence, the International Covenant on Civil and Political Rights6 states that everyone charged with a criminal offence shall be entitled to legal assistance and the Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment7 provide that a detained person shall have the right to be assisted by counsel. Accordingly, the United Nations Basic Principles on the Role of Lawyers8 state that any person who do not have a lawyer shall be entitle to have one of experience and competence commensurate with the nature of the offence assigned to them to provide effective legal assistance, without payment by them if they lack sufficient means to pay for such services. In the European Union, to ensure that suspects and accused persons have access to a lawyer regardless of their financial means, Directive (EU) 2016/1919 on legal aid17 (Directive on legal aid) provides that suspects and accused persons who have a right to a lawyer under the Directive on the right of access to a lawyer18 must be entitled to legal aid. This right applies to persons who are: Specifically, the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems9 outline the specific elements required for an effective and sustainable national legal aid system. Thus, the provision of legal aid is a responsibility of States10 that should ensure that: • • • • • deprived of their liberty; required to be assisted by a lawyer in accordance with EU law or national law; required or permitted to attend an investigative or evidence-gathering act. Directive (EU) 2016/800 on procedural safeguards for children provides for the right to legal aid (Article 18) whenever the child has the right to a lawyer (Article 6). These rights apply to children “(a) before they are questioned by the police or by another law enforcement or judicial authority; (b) upon the carrying out by investigating or other competent authorities of an investigative or other evidence-gathering act in accordance with point (c) of paragraph 4; (c) without undue delay after deprivation of liberty; (d) where they have been summoned to appear before a court having jurisdiction in criminal matters, in due time before they appear before that court”.19 anyone, be it an adult or a child, who is detained, arrested, suspected of or charged with a criminal offence is entitle to legal aid at all stages of the criminal justice process,11 effective legal aid is provided promptly and in a non-discriminatory manner,12 arrested persons are informed of their right to legal aid,13 legal aid providers perform their functions effectively, freely and independently,14 legal aid providers possess adequate education, training, skills and experience and are hold accountable in case of malpractice.15 6. United Nations International Covenant on Civil and Political Rights, adopted 16 December 1966, entered into force 23 March 1976 (CCPR), art 14. 7. United Nations General Assembly resolution 43/173; Principle 11. 8. Adopted 7 September 1990, by the Eights United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba.; Principle 6 9. United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, General Assembly resolution 67/187. See also, Model Law on Legal Aid in Criminal Justice Systems with Commentaries, UNODC 2017. 10. Ibid, Principle 2. 11. Ibid, Principle 3. 12. Ibid, Principles 6 and 7. 13. Ibid, Principle 8. 14. Ibid, Principle 12. 15. Ibid, Principle 13. 10 • • • 16. Relevant standards for legal aid for children are contained in the following instruments: Guidelines 10 and 11 UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (2013), UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules), United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990, the Havana Rules), Guidelines for Action on Children in the Criminal Justice System (The “Vienna Guidelines”), General Comment No. 24 (2019) of the Committee on the Rights of the Child (children’s rights in the child justice system), UNICEF Guidelines on Child-friendly legal aid (2018), the Council of Europe Guidelines on Child‐ Friendly Justice (Nov. 2010), Legal aid for children in criminal proceedings: developing and sharing best practices (LA CHILD project) 2020-2021. 17. Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrants proceedings, OJ L 297, 4.11.2016, 1. 18. Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, OJ L 294, 6.11.2013, 1. 19. EU Directive 2016/800/EU, art. 6. 11