Inconsistent free legal aid for children. The Directive on procedural safeguards for children who are suspects or accused persons in criminal proceedings requires Member States to provide legal aid where this is necessary to ensure that children are effectively assisted by a lawyer.39 In some countries, the participation of a lawyer is deemed mandatory for children in criminal proceedings and the financial situation of the child is not a relevant consideration (Belgium and France).40 However, in some States, there are requirements as to the financial situation of the children’s parents (Finland), repayment of legal aid fees might be required from children in the case of a conviction (Czech Republic),41 or regular conditions have to be met for accessing legal aid (Austria).42 Ineffective legal representation. According to the Directive on legal aid (art 7), Member States must ensure that there is an effective legal aid system of an adequate quality to safeguard the fairness of the proceedings. However, in practice, there are concerns in many countries that the assistance provided by legal aid lawyers is ineffective and of insufficient quality, due to inadequate remuneration (low fees)43 and uncertainty of being paid.44 Generally, legal aid schemes pay lawyers a flat fee per case or procedural act, regardless of the complexity of the case or number of hearings, disincentivizing lawyers from preparing their clients’ defence adequately. Although the Directive provides that Member States should facilitate continuity of legal representation throughout the criminal proceedings, the involvement of various lawyers at different stages of the proceedings is often cited as a barrier preventing a relationship of trust from being established, and preventing the lawyer from being sufficiently acquainted with the circumstances of the case to provide an effective legal assistance.45 This can be particularly damaging for children. Lack of training and quality control of lawyers admitted to duty lawyer or ex officio schemes46 due to: non-existence of an independent legal aid authority managing or overseeing the provision of legal aid, no mechanisms in place to monitor the quality of legal aid services provided,47 no specific qualifications or training required to practice as a legal aid lawyer, no accreditation system or homogenous specialisation requirements. Where legal aid lawyers receive specific training, there is a lack of an holistic approach, as training programs often do not cover sociopsychological aspects that can arise when assisting persons in a situation of vulnerability. 39. Directive (EU) 2016/800 of 11 May 2016, Article 18. 40. LA CHILD, Report on current European national frameworks, p.56. 41. Ibid, p.58. 42. Unless proven that paying for a lawyer would hinder the further development of the child. 43. Fair Trials, Where’s my lawyer - making legal assistance in pre-trial detention effective, ibid, p.18. United Nations Human Rights Committee, Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, Report of 2013 on legal aid, 23rd session of the HRC, A/HRC/23/43, §73. Fair Trials, Practioners’ tool on EU Law, Legal aid Directive, ibid, p.44. 44. Justicia Network, Inside Police Custody 2, ibid, p.55. 45. Fair Trials, Where’s my lawyer - making legal assistance in pre-trial detention effective, ibid, p.20. 46. Justicia Network, Inside Police Custody 2, ibid, p.52. 47. See Practice Standards for Legal Aid Providers developed in the framework of the project “Enhancing the Quality of Legal Aid: General Standards for Different Countries”, 2018, implemented by partners from Lithuania, Germany and The Netherlands, seeking to strengthen the quality of legal aid services in criminal proceedings by developing practice standards, including specialization and continuous training, peer review and evaluation by legal aid users, judges and prosecutors. 14 Promising practices on legal aid Promising practice from Spain Description of the practice Brief overview of the legal framework The Spanish Constitution states that justice will be free, in the terms provided by the law, for those lacking sufficient resources to litigate.48 This constitutional provision is implemented through Law 1/1996 on free legal assistance, which was amended in 2018 to transpose the Directive on legal aid. The national legal framework is completed by Regulation 141/2021, which specifies the administrative proceedings to grant legal aid and regulates the respective responsibilities of local Bar associations and the General Council of the Bar Associations in the management of the legal aid system. Some regions (Comunidades Autónomas) have competences on justice matters and therefore have their own regional implementing norms that regulate regional and local administrative bodies in charge of the proceedings to grant free legal aid within their territories. In addition, Bar Associations issue norms and protocols relating to the management of the duty lawyers schemes for which they are responsible. Free legal assistance is a public service funded by the State and is provided by private lawyers who apply to be included in the Bars’ lists for legal assistance services on a voluntary basis.49 The Spanish legal aid system is not limited to criminal proceedings, but does also include other areas, such as civil, labour and administrative proceedings. As far as criminal proceedings are concerned, the Constitution provides the compulsory assistance of a lawyer from the moment of police detention.50 This right to prompt access to a lawyer in police custody can only be waived in cases of road safety offences.51 In practice, this results in access to legal aid being granted to any person in police custody. 48. Spanish Constitution, art 119. 49. Enrolment in the duty scheme is voluntary since 1996. 50. Spanish Constitution, art 17.3. 51. See art 520.8 Criminal Procedure Code. Also, only in the event of a child who has not been detained but is summoned to declare by the police or Juvenile Prosecutor’s Office for a minor offence (falta) while the file has not been opened, is then possible to waive the right to a lawyer (assisted by his/her legal representatives). Waiving this right is not possible if he/she is accused of a crime (delito) even if it is a road safety crime (which is the general exception of art. 520.5 Criminal Procedure Code of Spain). In addition, lawyer’s assistance is imperative once the proceedings have been initiated (even if it is a minor offence). Consulta 4/2005 Fiscalía General del Estado. 15