International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law
Spring 2013 Issue
 

General Principles of International Law

 

The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems

Miri Sharon

By: Miri Sharon, Drug Control and Crime Prevention Officer, Justice Section, Division for Operations, United Nations Office on Drugs and Crime

On 20 December 2012 the General Assembly adopted the new United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems “as a useful framework to guide Member States on the principles on which a legal aid system in criminal justice should be based” recognising that “legal aid is an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law” (Resolution 67/187).

The adoption of these new principles is the culmination of a process that began in Africa, after the adoption of the Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa in 2004, which was later adopted by the Economic and Social Council in 2007.

For the purposes of the Principles and Guidelines:

the term “legal aid” includes legal advice, assistance and representation for persons detained, arrested or imprisoned, suspected or accused of, or charged with a criminal offence and for victims and witnesses in the criminal justice process that is provided at no cost for those without sufficient means or when the interests of justice so require. Furthermore, “legal aid” is intended to include the concepts of legal education, access to legal information and other services provided for persons through alternative dispute resolution mechanisms and restorative justice processes.

This wide concept of legal aid takes into account that the needs of those encountering the criminal justice system, whether suspects or accused, victims or witnesses, go beyond court representation and may call for many different types of services, from advice on how to reach the courts and what documents are needed, to full representation in all appeals related to capital cases. It also implies that such services can be provided by a wide range of legal aid providers. While recognizing that the first providers of legal aid are lawyers, the Principles and Guidelines encourage States to go into partnerships and involve a wide range of stakeholders such as NGOs, universities, bar associations and paralegals. The recognition of paralegals – non-lawyers who receive basic training and can provide legal advice and assistance in the navigation of the criminal justice system – can be seen as an acceptance of the concepts of primary and secondary legal aid, and an acknowledgement of the great impact of their work in Asia and Africa.

While the Principles and Guidelines follow the spirit of Lilongwe by adopting a wide definition of legal aid and by calling on Member States to diversify their modes of delivery of legal aid; they are applicable globally and carry a strong message to governments that the provision of legal aid is “their duty and responsibility” (Principle 2).

The Principles and Guidelines also advance very much the rights of marginalized groups by putting a strong emphasis on measures to ensure equal access to legal aid for all. They adopt for the first time the concept of “child-friendly legal aid” and provide a detailed list of measures that States may take to achieve such an approach to children. They also include provisions on women’s access to justice and the need to ensure that victims of violence are properly represented and heard.

  

The parallel structure of “principles” – setting out the standards, and “guidelines” – providing detailed guidance on how these standards could be achieved, ensures that implementation will not lag behind statements of principle, and provides a reach menu for choice of each State to adapt to its own circumstances and legal frameworks.

For example, while Principle 2 sets out that states should “ensure that a comprehensive legal aid system is in place that is accessible, effective, sustainable and credible,” Guideline 11 provides details on how the national legal aid system should be established, for example, by considering appointing a national legal aid authority to administer and monitor legal aid. Guideline 12 provides detailed advice on the funding of the legal aid system and recommends inter alia that States “identify and put in place incentives for lawyers to work in rural areas and economically and socially disadvantaged areas,” such as tax exemptions.

These detailed provisions are based on best practices tested and promoted globally. Though some may not be yet recognized in all legal systems, they provide a refreshing approach to the provision of legal aid which opens the door for new and creative ways for the delivery of legal aid. While restating the right of every accused to legal aid and emphasizing the role of lawyers, the new Principles and Guidelines remind governments that this right implies a corresponding duty for them to provide such legal aid, and that this may be achieved in many ways, not necessarily very costly ones.

The drafters of the GA resolution, as the drafters of the Lilongwe declaration, tie lack of access to legal aid with prolonged pretrial detention, prison overcrowding and violation of basic human rights in the criminal justice system. Thus, they remind governments that the provision of legal aid has benefits for the entire criminal justice system, and is not merely an issue of procedural law.

The links of the new Principles and Guidelines to other sectors of the criminal justice system also have a more formalistic expression: as part of the body of United Nations Standards and Norms on Crime Prevention and Criminal Justice, which has been developing since the 1950’s, they build on and add to the rules on treatment of prisoners, on children in the criminal justice system, and on the respective roles of lawyers, prosecutors and judges. As such, they strengthen existing provisions on the right to legal aid of prisoners and children, and give new meanings to the provisions on the role of lawyers.

In several regions and countries in the world, a lively debate is taking place on the form of legal aid and the most effective models for its delivery. States are revising existing legislation and adopting new laws (the new law from Sierra Leone being a salient example). It is hoped that the new Principles and Guidelines will assist States in developing their own approaches to legal aid which take into account the need to modernize criminal justice systems and protect the human rights of all those involved in the criminal justice process.

*The views expressed herein are those of the author and do not necessarily reflect the views of the United Nations.

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