UN Principles and Guidelines on Legal Aid

ZAZA NAMORADZEDIRECTOR OF BUDAPEST OFFICE

SOUTHEAST ASIA REGIONAL CONFERENCE ON ACCESS TO JUSTICEBANGKOK, THAILAND

AUGUST 2015

State of Access to Legal Aid Globally

Most people arrested and charged with crimes are Poor and can not hire legal Counsel

They have a right to free legal aid under international law and as formally recognized by most countries in the world, but rarely enjoy it in practice. Some statistics from our past research:

Turkey 2007: 75% of defendants who were eventually sentenced to prison terms were never represented by a lawyer; only in 7.3% of cases lawyer were present during the police interrogation.

Ukraine 2008: 69% of cases proceeded without a lawyer; 64% refused legal aid and 40% of them did so under the pressure of police

Jordan 2013: 0.4% defendants were represented at police station, 17% during the PTD and 32% during trial.

(study samples taken from representative sample court case file surveys and observations)

Legal Aid: A Cornerstone of Fair Justice System

European Commission (2003): If an accused person has no lawyer, they are less likely to be aware of their other rights and therefore to have those rights respected. The Commission sees this right as the foundation of all other rights.

UN Principles and Guidelines: 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 is a foundation for the enjoyment of other rights, including the right to a fair trial, as a precondition to exercising such rights and an important safeguard that ensures fundamental fairness and public trust in the criminal justice process

European Court of Human Rights: in order for the right to a fair trial to remain sufficiently ‘practical and effective’ Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police.

Lack of Systemic Approach to Legal Aid

First, the widely-held assumption that a good publicly-funded legal aid system is complex and comes at a high cost and with uncertain benefits;

Second, often even basic hard data is not available on the state of legal aid, the scale of the problem, and their implications on the criminal justice and wider society;

Third, international standards prescribe that it should be real and effective, but have limitations on how far they may go in detailing them. Until recently No international standards prescribe a particular system or structure to ensure effective delivery of legal aid.

Not Any More(as far as the third reason is concerned)

On December 20, 2012 the UN Principals and Guidelines on Access to Legal Aid in Criminal Justice Systems were adopted by the General Assembly, being the first international instrument on legal aid.

This instrument is groundbreaking: it represent the most progressive principles and guidelines on legal aid, that are grounded on the emerging best practices and evolving jurisprudential and normative developments around the world.

Process of Adoption

2007 UN Resolution requesting the UNODC to explore means for strengthening access to legal aid globally

2010 – 2011 I was a member of the expert Working Group which prepared the draft of the instrument

2011 November: Intergovernmental Expert Group Meeting in Vienna

April 23-27 2012, 21st Session of the CCPCJ: resolution by Georgia, the Philippines and South Africa. Adopted Unanimously

UN GA final adoption on December 20, 2012

Main Objective

The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, which are drawn from international standards and recognized good practices, aim to provide guidance to States on the fundamental principles on which a legal aid system in criminal justice should be based and to outline the specific elements required for an effective and sustainable national legal aid system.

Principles and Guidelines

Introduction - describes importance of legal aid and the overall purpose of the instrument

Principles - provide core elements on which national legal aid systems should be based on

Guidelines - go into detail about how to construct national effective legal aid systems by drawing on available good experiences and progressive practices.

Introduction

Introduction starts with underscoring importance of legal aid and the overall purpose of the instrument

Focus is on effective legal aid and that is why it is concerned with the range of rights without which there can’t be effective criminal defence

Purpose: as a useful framework to guide Member States on the principles on which a legal aid system in criminal justice should be based

Benefits: the instrument recognizes that effective legal aid schemes produce significant positive outcomes both for individuals and for the wider society by improving the performance of criminal justice personnel. They lead to more rational and effective decision-making on arrest and detention; and increase accountability and respect for the rule of law

Setting out a framework for ensuring that a right to free legal aid is effectively implemented, in a way that is accessible, accountable, sustainable and credible.

Responsibilities of the State

States should guarantee the right to legal aid in their national legal systems at the highest possible level, including, where applicable, in the constitution.

States should consider the provision of legal aid their duty and responsibility.

States should allocate the necessary human and financial resources to the legal aid system.

States should enhance the knowledge of the people about their rights and obligations under the law through appropriate means.

Who is Eligible?

States should ensure that anyone who is arrested, de tained, suspected of or charged with a criminal offence punishable by a term of imprisonment or the death pen alty is entitled to legal aid at all stages of the criminal justice process.

States may apply means test to determine whether they have sufficient means to pay for legal assistance. Legal aid should also be provided, regardless of the person’s means, if the interests of justice so require, for example, given the urgency (police arrest) or complexity of the case or the severity of the potential penalty

Scope: When should Legal Aid be Provided?

States should ensure that effective legal aid is provided promptly at all stages of the criminal justice process. Effective legal aid includes, but is not limited to, unhindered access to legal aid providers for detained persons, confidentiality of communications, access to case files and adequate time and facilities to prepare their defence. States should ensure that the police and judicial authorities do not arbitrarily restrict the right of access to legal aid for suspected or accused persons, ‘in particular in police stations’

Right to be informed

States should ensure that, prior to any questioning and at the time of deprivation of liberty, persons are informed of their right to legal aid and other procedural safeguards

More specifically, they should be informed of their right to consult with a lawyer or legal aid provider (if eligible) at any stage of the proceedings, and especially before being interviewed and during any interview or other procedural action.

They should also be informed of the consequences of waiver of the right to legal aid.

Right to be Informed continued

The provisions indicate that persons arrested or deprived of their liberty must be orally informed of the right at the relevant time, and the obligation to provide the information is imposed on police officers, prosecutors, judicial officers and officials in any facility where persons are detained or imprisoned

In addition, written information on the right to legal aid (and other procedural rights) should be provided in police stations, detention centers, courts and prisons, for example, in the form of a ‘letter of rights’ or other official document that is given to the arrested or detained person

Information on the right to legal aid should be provided in a manner that is appropriate given the circumstances of the person

Mechanisms should be in place for verifying that a person has actually been informed of the right to legal aid, and for providing effective remedies where information on rights has not been adequately provided

Safeguards and Remedies

States should introduce measures to prohibit, in the absence of compelling circumstances, any interviewing of a person by the police in the absence of a lawyer unless the person has given their informed or voluntary consent for it to proceed. Interviewing should not commence until the legal aid provider has arrived, and there should be mechanisms for verifying the voluntary nature of waiver of the right of access to legal aid.

States should establish effective remedies and safeguards that apply if access to legal aid is undermined, delayed or denied or if persons have not been adequately informed of their right to legal aid.

Legal Aid Providers and Quality

States should ensure that legal aid providers are able to carry out their work effectively, freely and independently.

States should put in place mechanisms to ensure that all legal aid providers possess education, training, skills and experience that are commensurate with the nature of their work, including the gravity of the offences dealt with, and the rights and needs of women, children and groups with special needs.

Special emphases on Paralegals – nationwide schemes and accreditation.

Non-state legal aid providers, including CSOs and university student clinics.

Equity in Access to Legal Aid

Special measures should be taken to ensure meaningful access to legal aid for women, children and groups with special needs, including, but not limited to, the elderly, minorities, persons with disabilities, persons with mental illnesses, stateless persons, asylum seekers, foreign citizens, migrants and migrant workers, refugees and internally displaced persons, etc.

Legal aid should be provided for victims

Legal Aid should be provide to witnesses, especially when the witness is at risk of incriminating himself or herself

Guidelines

Eligibility Legal aid at pretrial stage Legal aid during court proceedings Legal aid at post-trial stage Legal aid for victims Legal aid for witnesses Implementation of the right of women to access to legal aid Special measures for children National legal aid system Regulation and oversight of legal aid providers Paralegals Partnership with non-State legal aid service providers and universities Research and data

Special Measures for Children

Ensuring the right of a child to have a counsel assigned to represent the child in his or her name in proceedings where there is or could be conflict of interest between the child and his or her parents or other parties involved

Ensuring that children may consult freely and in full confidentiality with parents and/or guardians and legal representatives and at once if they are arrested, detained, suspected or accused

Diversion

Encouraging alternative measures and sanctions to deprivation of liberty

Nationwide Legal Aid System

The guidelines recognize importance of systemic approach for effective organization and delivery of legal aid:

- mechanisms for determining scope and eligibility for legal aid, - necessary funding for the legal aid system and necessary human resources

- monitoring mechanism for assuring quality of legal aid;

- organization of legal aid schemes with considerations of particular vulnerable groups;

- coordination among relevant criminal justice agencies, partnership with the Bar association

Legal Aid Management

States should consider establishing a legal aid body or authority to provide, administer, coordinate and monitor legal aid services. Such a body should:

a) Be free from undue political or judicial interference, be independent of the Government in decision-making related to legal aid

b) Have the necessary powers to provide and monitor legal aid, c) Assess demands for legal aid and develop legal aid budget;d) Develop long-term strategy guiding the evolution and

sustainability of legal aid and report periodically to the responsible authority

Implementation of the UNPGLA

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Soft law instrument but already significant efforts are underway to promote its implementation

Global Study of Legal Aid – first global baseline on LAModel Legal Aid LawDoha Crime Congress Resolution April 2015: 5c: review and reform legal aid policies for expansion of access to effective legal aid in criminal proceedings for those without sufficient means or when the interest of justice so requires, including when necessary, through development of national plans in this field and to build the capacities, to provide and ensure access to effective legal aid in all matters and in all its forms, taking into account the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice systems

CSO research and monitoring initiative

Post 2015 SDGs

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On August 3 the governments agreed on the agenda for Transforming the World and ending poverty by 2030 which will be adopted at the UN Summit on 26-27 September in New York:

Goal 16: Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels

Target 16.3: promote the rule of law at the national and international levels, and ensure equal access to justice for all.

Thank You