In 2016 a Directive on legal aid was also published. Article 5 Directive 2016/1919/EU ensures the right of requested persons to legal aid in the Executing State upon arrest pursuant to an EAW until they are surrendered, or until the decision not to surrender them becomes final. It also states that requested persons who are the subject of an EAW for the purpose of conducting a criminal prosecution and who exercise their right to appoint a lawyer in the Issuing State in accordance with Article 10(4) and (5) of Directive 2013/48/EU have the right to legal aid in the Issuing State for the purpose of such proceedings, in so far as legal aid is necessary to ensure effective access to justice.
These rights may be subject to a financial means test.
In order to be effective, dual representation must involve the provision of legal assistance (legal consultation or advice and legal representation) by lawyers from two different jurisdictions, concomitantly and subsequently, in a coordinated manner, which is required by the cross-border dimension of the case. In some cases the intervention of lawyers from more than two jurisdictions is required. In these cases the expression “multiple representation” would be more accurate.
Dual representation enables genuine reasons for refusal of execution of an EAW to be properly argued and spurious ones to be discontinued. Therefore, the intervention of a lawyer from the Issuing State is essential to help both the lawyer and the court in the Executing State to assess the verification of any refusal grounds as swiftly as possible. Many, if not most, rights of the requested person in EAW proceedings may only be exercised effectively by the two lawyers in cooperation.
It will have become evident from the previous chapters that, although it is usually the Executing State lawyer (“ESL”) who has first contact with the case and an important role in initially advising the client, she cannot give effective and full legal advice without consulting a lawyer in the Issuing State.
You, as the ESL, should therefore contact a lawyer in the Issuing State as soon as you start acting. If you do not know one you can ask for help via existing networks (for example on the ECBA “Find a Lawyer” webpage). You can also request that the authorities of the Executing State seek information from the authorities of the Issuing State on how to appoint a lawyer in the Issuing State (Article 10(5) Directive 2013/48/EU).