The Permanent Missions of Afghanistan, South Africa and the United States to the United Nations, the Rule of Law Unit on behalf of the UN Rule of Law Coordination and Resource Group (ROLCRG), and the International Legal Foundation (ILF) organised a panel discussion on “Enhancing Access to Legal Aid in Criminal Justice Systems” in New York on 13 November 2014.
The event provided an opportunity for Member States to exchange knowledge and national experiences on strengthening the rule of law through enhancing access to legal aid. Several of the speakers addressed the national implementation of the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, as well as the implementation of the voluntary pledges made on the occasion of the High Level Meeting of the General Assembly on the Rule of Law at the National and International Levels in 2012. The event was also an occasion to hear about recent developments in the UN system in the area of legal aid, and the key messages from the International Conference on Enhancing Access to Legal Aid in Criminal Justice Systems, held in Johannesburg in June 2014.
A few important key themes emerged from the discussion. First, that access to criminal defence services is fundamental to the right to a fair trial, and to protection against abuses such as torture, arbitrary and prolonged detention, and wrongful conviction. While the right to legal aid in criminal proceedings is recognized by all Member States, all countries have challenges in providing effective access to legal aid. Regardless of the level of development of a country, or the model chosen for the provision of legal aid, common challenges include ensuring sustained political will and sufficient budgetary allocations. Reaching remote areas and ensuring the quality of legal aid services are also issues virtually all countries have to tackle. The challenges can be even more acute in conflict- and post-conflict countries. However, it was argued that legal aid requires relatively modest investments, yet yields important returns by, for example, reducing periods of pre-trial detention and restoring trust in the justice institutions. The panellists identified the role of an independent judiciary and of an active civil society as critical in developing quality legal aid services, and stressed that unified efforts can and do lead to success.
The importance of access to legal aid in civil cases was also emphasized. Civil legal aid is linked to core development issues, such as better access to healthcare, housing or education. It is also important in the reintegration of former convicts. Panellists agreed that the rule of law and access to justice, including legal aid, should be included in the post-2015 development agenda.
The UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems serve as the guidance on the basis of which Member States develop context-specific solutions. To further support Member States, UNODC and UNDP have produced a handbook on early access to legal aid, and are also carrying out a global study on legal aid to map the needs and gaps to inform further work. All Member States are invited to use the Handbook and to participate in the Global Study. UNODC is also developing a model law on legal aid.
Mr. Edric Selous, Director of the Rule of Law Unit in the Executive Office of the Secretary-General, opened the event by referring to the recently concluded discussion on the rule of law in the 6th Committee of the General Assembly. In its annual resolution on the rule of law at the national and international levels the Committee calls for increased sharing of national experiences and dialogue amongst various stakeholders, as well as for a follow up to the voluntary pledges made on the occasion of the High Level Meeting on the Rule of Law in 2012. This event was the first of a series of events facilitated by the UN’s Rule of Law Coordination and Resource Group to that end.
Justice Dunstan Mlambo, Judge President of the Gauteng Division of the High Court of South Africa and the Chairperson of Legal Aid South Africa, drew on his extensive experience on developing legal aid services in South Africa and in support of several other African countries. According to Justice Mlambo, challenges are similar regardless of whether a country has only rudimentary or already more developed institutions for legal aid. Firstly, it is of fundamental importance that the right to legal aid is recognized in the country’s legislation. Secondly, there needs to be sustained political will for implementation and, thirdly, concrete commitment to make the necessary budget allocations. In the case of South Africa, some of the additional success factors have included a strong push to build a human rights culture, an independent and activist judiciary, as well as an active non-governmental sector. Most of these elements have been captured also in the UN’s Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. Justice Mlambo emphasized the importance of developing context-specific solutions based on the common principles and guidelines. He also advocated for including the rule of law, access to justice and legal aid as concrete targets in the post-2015 development agenda.
Ms. Lisa Foster, Director of the Access to Justice Initiative at the United States Department of Justice, underlined the importance of the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. In 2012, the United States made concrete pledges to support the UN Principles and Guidelines’ adoption by the General Assembly and sponsor activities on the importance of criminal legal aid around the 50th anniversary of the US Supreme Court decision of Gideon v. Wainwright. The US lived up to those commitments by allocating 24 million USD over the past four years to support the right to defence counsel throughout the country, participating in targeted interventions in ongoing litigation in state courts, and making changes in practices by federal prosecutors. In addition, the US has supported the establishment of criminal legal aid services around the globe. The US is also providing technical support to UNODC in its development of a model law on legal aid. Ms. Foster underlined that there was not one model of organising defence counsel, instead solutions vary. This was also true within the United States, with its variety of jurisdictions – Federal, State and Tribal. Ms. Foster also discussed the importance of civil legal aid in ensuring better access to basic services, such as healthcare, housing and education, and described Department of Justice activities to support civil legal aid, which was also a part of the 2012 pledge. She concluded by discussing the importance of civil legal aid for former inmates as an important tool to facilitate reintegration.
Ambassador Zahir Tanin , the Permanent Representative of Afghanistan to the United Nations spoke of the reforms in the rule of law sector, including legal aid, in Afghanistan, and of the particular challenges of post-conflict countries more broadly. Great efforts have been undertaken since 2001 to reform the justice system in Afghanistan. The right to legal aid is guaranteed in the 2004 Afghan Constitution and important progress has been made in the availability of criminal defence services and in the protection of the rights of the accused. Some of the challenges include financial constraints, access to remote and often insecure areas, as well as corruption in the judicial system. The new Government of President Ashraf Ghani has made combatting corruption and strengthening accountability key priorities. Ambassador Tanin underlined the critical nexus between access to justice, legal aid, and security: restoring the rule of law and trust in the institutions of justice is key to stability and sustainable peace.
Ms. Simone Monasebian , Director of UNODC New York Office, underlined the role of the UN system in supporting Member States in the implementation of the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. UNODC and UNDP have produced a handbook on early access to legal aid, which was in Johannesburg in June 2014. It is an important tool to address prolonged pre-trial detention, and also includes training curricula. Currently, UNDP and UNODC are engaged in undertaking a Global Study on Legal Aid. The aim of the Global Study is to identify the needs and gaps, and to create a global baseline on civil and criminal legal aid. A Note Verbale will be sent to all Member States and all were invited to contribute. In addition, Member States were invited to support the preparation of case-studies, for which there is currently a funding-shortfall. UNODC is also engaged in the development of a model law on legal aid. Ms. Monasebian emphasized the importance of adequately reflecting the rule of law, access to justice and legal aid on the post-2015 agenda. The Open Working Group on Sustainable Development Goals has recommended including a goal on access to justice and a target on the rule of law. The upcoming UN Congress on Crime Prevention and Criminal Justice, to be held in Doha in April 2015, is also set to discuss the topic.
Ms. Jennifer Smith, Director of the International Legal Foundation, reflected on the issues raised by the speakers. There was a broad agreement amongst Member States on the right to counsel, and that it is a fundamental aspect of the right to a fair trial. The challenge is in the implementation: laws exist, but adequate institutions often don’t, creating a global crisis in access to counsel by the poor. On the other hand, some of the examples provided, such as the case of Afghanistan, demonstrate clearly that with relatively modest resources a lot of progress can be made. It is pivotal that the international community, including States at the highest levels, prioritize this issue by engaging actively. States should facilitate regular exchanges of experiences and ideas; provide technical assistance especially in post-conflict and transitioning countries; and provide funding in measures equal to that provided to the police and prosecution side of criminal justice systems to promote balance and fairness. In addressing priority areas in moving forward, Ms. Smith highlighted the need for this issue to be included on the agenda of the 2015 UN Congress on Crime Prevention and Criminal Justice. Ms. Smith also encouraged Member States to consider the role of the General Assembly in supporting the implementation of the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. She emphasized the importance of the Global Study on Legal Aid in identifying the actual challenges and needs of countries, and of continuing serious discussions at the national and international levels, especially on the quality of legal aid, as well as on monitoring and evaluation of legal aid services.
Ways to ensure the quality of legal aid services was addressed in the discussion which followed, with Justice Mlambo sharing the experience of South Africa where two successful ways had been used: the establishment of a quality assurance unit composed of experienced lawyers in the Ministry of Justice, as well as closely involving the judiciary in monitoring the quality of legal aid lawyers. The scarcity of qualified lawyers, in particular in remote and / or conflict-affected areas, was also discussed. The panellists encouraged an incremental step-by-step approach. Incentives for lawyers, agency-agreements, co-operative agreements with traditional authorities in civil matters, “justice on the wheels” concept, and the use of paralegals were mentioned as possible solutions. In addition the questions and answers addressed the importance of legal aid both for development and for security and the particular challenges of fragile States.
Concept Note of the Event
UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems
Pledges made on the occasion of the High Level Meeting on the Rule of Law at the national and international levels
Handbook on Early Access to Legal Aid in Criminal Justice Systems
Global Study on Legal Aid
Johannesburg Conference on Access to Legal Aid in Criminal Justice Systems