Where’s my lawyer? Making legal assistance in pre-trial detention effective 2. Access to lawyer Advocacy initiative: Romania In the wake of a lawyers’ strike in Romania in February 2019, APADOR-CH and the working group of criminal justice experts created under this project argued for higher legal aid remuneration during the negotiations for a new Legal Aid Fee Protocol. In the negotiating process, the Romanian Bar Association asked the Ministry of Justice for an increase of the fee from 48 to 210 Euros for legal assistance in pre-trial detention. The Ministry of Justice replied to this request by asking a substantiation of the claim based on objective criteria. The working group, in its meeting on 12 December 2018, followed up on this request by drafting objective indicators. APADORCH released a public statement of solidarity with the legal aid lawyers, in which it reiterated the main findings of the working group in this project.59 On 14 February 2019, the Ministry of Justice, Public Ministry and the National Union of the Bar Associations adopted a new Protocol concerning the increased fee for legal aid lawyers, including new rules for calculations.60 The conclusions of the working group and some of its recommendations served as important input in the negotiating process. The involvement of a known NGO such as APADOR-CH was crucial. However, as of April 2019 there was still no budget allocated to cover the increase in the legal aid fees and judges could still arbitrarily decide to decrease the legal aid fee of certain lawyers, a practice expressly prohibited by the new Protocol. When you are detained prior to trial, your ability to participate in the preparation of your defence is dramatically impaired. One lawyer in Greece described the person in detention as “essentially helpless,” and that detention leads to self-incrimination, in the sense that the defendant is wholly unable to defend themselves. With the police and prosecution having the entire state machinery behind them, it is crucial that a defendant is provided with legal assistance from the earliest possible moment in the proceedings to be able to make effective use of their defence rights. In particular, the role of the lawyer is key to ensuring that defendants understand their rights, gather evidence about the case, prepare the defendant for hearings and counter arguments for pre-trial detention as well as to advocate for the application of alternative measures to detention. Where pre-trial detention is requested by the prosecution, it is the lawyer’s role to prepare for an effective challenge of a pretrial detention order. Defendants should not appear unrepresented at pre-trial detention hearings unless they have specifically, knowingly and intelligently waived the right to a lawyer. Despite EU law requiring early access to a lawyer,57 which was due to be implemented by Member States by 27 November 2016, practice shows significant obstacles and limitations to this crucial right for the defendant, meaning many people are denied practical access to effective legal representation. a. Ability to pay • A proper transposition of EU norms into national legal orders and monitoring of their practical implementation is key to ensuring effective legal assistance by legal aid lawyers. Insufficient financial means is a key impediment to effective legal assistance for suspects in pre-trial detention. The inability to afford a lawyer or the threat of having to reimburse the state for the costs of legal representation in the event of a conviction has a severe effect on a suspect’s ability to enjoy the rights enshrined in EU law. • 57 58 59 60 Exclusion of police detention: The situation in Bulgaria is of particularly grave concern. Police custody is not treated as part of criminal proceedings and, as such, even if a detainee can in principle, have access to a lawyer in police detention58 (see practical obstacles below), legal aid in practice is not free as detainees must reimburse legal aid costs later in the proceedings if convicted. There are no rules on how legal aid is provided during detention, and no system in place for appointing lawyers. With a few exceptions, in practice, suspects do not benefit from effective legal assistance while they are detained, and as a rule, are interviewed by police officers during ‘exploratory talks’ without the presence of a lawyer. The information they share at this stage may be directly entered into their case files though testimonies provided by the police officers, although in principle they cannot serve as a ground for conviction. • Bar associations should be involved in the transposition and monitoring of the practical implementation of EU norms. • Cooperation among lawyers’ associations is necessary to increase awareness of procedural rights and the benefits of the Directives. • The state should bear the cost of legal aid, irrespective of the outcome of the proceedings, in order to allow for poor defendants to avail themselves of their right to a lawyer. • Lawyers unwilling to engage: Lawyers may not be willing to engage properly in the case or to provide effective legal representation at the early stages of proceedings. This is understandably connected to inadequate remuneration (and late payment of fees) which impact lawyers’ willingness to take on legal aid cases and to work actively for clients to challenge pre-trial detention. Effective legal assistance in pre-trial detention should not depend on a defendant’s financial situation, with those 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. Article 72 (5), Ministry of Interior Act. The statement is available at: http://www.apador.org/solidaritate-cu-protestul-avocatilor-din-oficiu/. See: http://www.unbr.ro/protocol-14-02-2019-onorarii-avocati/. 17