Regional challenges Inadequate implementation of the Directive on legal aid, the lack of effective legal aid systems and access procedures,20 result in the right of access to a lawyer being limited in practice in some Member States. In spite of the Directive’s transposition due date (May 2019), some countries were still not in compliance with the Directive’s requirements.21 As a result, “a relatively small proportion of arrested and/or detained suspects or accused persons actually have a lawyer during their initial detention”22 due to systemic issues in appointing lawyers in due time (legal aid lawyers in particular), non-effective duty schemes or lack of clarity about eligibility to legal aid.23 This section mentions only some of the remaining regional challenges relating to legal aid. Underfunded legal aid systems. The European Commission for the Efficiency of Justice (CEPEJ) has indicated that between 2016 and 2018, although there was an average tendency for increase in the budget allocated to judicial systems, 13 Council of Europe (CoE) Member States had reduced the implemented budget for legal aid (including EU Member States).24 During that period, on average, CoE Member States allocated 11% of judicial system budget to legal aid (65% to courts and 24% to prosecution services).25 Ineffective legal aid systems. In some Member States inefficiencies in their systems result in legal aid not being provided in practice for persons that are detained by the police. In Bulgaria, detainees must reimburse legal aid costs later in the proceedings if convicted.26 Authorities emphasising the potential financial burden dissuade suspects and accused persons from seeking legal aid.27 According to official statistics, in 2016, of the 48.588 suspects and accused persons detained by the police in Bulgaria, only 25 persons were appointed an ex officio lawyer.28 The same problem arises in Greece where, despite suspects and accused persons having the right to receive legal assistance prior to and during police interviews, the practical unavailability of legal aid at this stage makes it ineffective for most people.29 Belgium and Spain, where legal aid is provided prior to police questioning, stand out as good practice examples. In Austria, all suspects and accused persons can receive free preliminary information over the phone through an arrest hotline, but not in person. 20. Justicia Network, Inside Police Custody 2, 2018, p.54. 21. In July 2019, the European Commission decided to open an infringement procedure against Greece for failing to communicate on the measures taken to implement the Directive. 22. Justicia Network, Inside Police Custody 2, op.cit., p.47. 23. Fair Trials, Practioners’ tool on EU Law, Legal aid Directive, 2020, p.38. See also Justicia Network, Inside Police Custody 2, ibid. 24. Belgium, Bulgaria, Cyprus, Denmark, Germany, the Netherlands, Latvia and Portugal. European judicial systems – Efficiency and quality of justice - 2018 Edition, CEPEJ STUDIES No.26, 2020 (2018 data), p. 38. 25. The CEPEJ also noted that “[l]ess wealthy countries spend proportionally more on prosecution services, while States and entities with higher GDP per capita invest relatively more in legal aid.” Ibid., p.42. 26. Fair Trials, Where’s my lawyer - making legal assistance in pre-trial detention effective, 2019, p.18. 27. European Union Agency for fundamental rights (FRA), Rights in practice: access to a lawyer and procedural rights in criminal and European arrest warrant proceedings, p.43. 28. Bulgarian Helsinki Committee, Hungarian Helsinki Committee, Human Rights Monitoring Institute, Helsinki Foundation for Human Rights, The Peace Institute, Right to a lawyer in criminal proceedings in five European jurisdictions: comparative report, 2018, p.30 29. Open Society Justice Initiative, Factsheet – legal aid in Greece. 12 Insufficient coverage. Pursuant to the Directive, EU Member States are permitted to make legal aid conditional on the satisfaction of a means test, a merits test, or both (Article 4.2). In European countries that apply a means test, there is often a gap between the income threshold and the costs of paying a lawyer privately, whereby persons whose income is just above the applicable threshold do not qualify for legal aid but they cannot afford to pay for a lawyer either.30 Difficulties in proving eligibility. The Directive does not specify who bears the burden of proving that the suspect or accused person has insufficient means. According to the European Court of Human Rights (ECtHR), the suspect or accused person has to prove that they have insufficient means.31 In practice, having to collect numerous documents to justify one’s financial situation, the lack of sufficient information, and difficulties in carrying out administrative procedures, are aspects that can be particularly cumbersome and discouraging for persons in a situation of vulnerability.32 Lack of information on legal aid. All suspects and accused persons must be informed of their right to legal aid and of the rules of entitlement to such a right.33 Children must be adequately informed that they have this right. Such information must also be laid out in the letter of rights provided to suspects and accused persons who are arrested or detained.34 The European Commission also recommends that “[i]nformation on how and where to apply for such aid, transparent criteria on when a person is eligible for legal aid, as well as information on the possibilities to complain in circumstances where access to legal aid is denied or a legal aid lawyer provides insufficient legal assistance” is provided.35 However, evidence demonstrates that such requirements are not necessarily reflected in practice.36 Exclusion of minor offences. Despite minor offences constituting the majority of criminal cases in most, if not all, EU criminal justice jurisdictions,37 the Directive excludes the application of the right to legal aid for minor offences in certain circumstances.38 As a result, legal aid and legal assistance may not be granted irrespective of the consequences that the sentences imposed may have on the lives of individuals prosecuted. This undermines the purpose of the Directive in practice. 30. Council of Europe, study on The efficiency and the effectiveness of legal aid schemes in the areas of civil and administrative law, 2021. “As a result, many people are in fact denied access to justice” p.23. 31. ECtHR, Croissant v. Germany, no. 13611/88, Judgement of 25 September 1992, §37. However, this does not need to be proved beyond all reasonable doubt: ECtHR, Pakelli v Germany, no. 8398/78, Judgement of 25 April 1983, §34. 32. See Défenseur des Droits, Enquête sur l’accès aux droits, vol. 2, Relations des usagères et des usagers avec les services publics : risques de non recours, 2017. 33. Article 3 (1)(b) of Directive 2012/13/EU on the right to information in criminal proceedings. 34. Article 4(2) and (3) of Directive 2012/13/EU, ibid. 35. European Commission, Recommendation of 27 November 2013 on the right to legal aid for suspects or accused persons in criminal proceedings (OJ C 378), pp. 11–14), Section 2 (5). 36. Justicia Network, Inside Police Custody 2, op.cit. pp.31-36. 37. CEPEJ, European judicial systems – Efficiency and quality of justice - 2018 Edition, ibid. 38. Article 4(2) of the Directive on legal aid. 13