The United Nations General Assembly has adopted the world's first international instrument dedicated to the provision of legal aid. The new UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, approved on December 20, are groundbreaking: they represent some of 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.
Significance of this instrument is tremendous. From my own personal experiences of having been closely involved in institutional legal aid reforms in the former Communist systems of Lithuania, Bulgaria, Georgia, Moldova, Ukraine, and Mongolia, as well as in Sierra Leone and Indonesia, one of the most crucial questions that all policymakers and practitioners face is how to provide publicly funded services in the most cost-efficient manner. The UN Principles and Guidelines are designed to respond to these needs, by endorsing an approach that recognises that the overwhelming majority of people who are detained and sentenced to prison are poor and vulnerable.
In many places these detainees have no effective legal representation and are as a result denied their right to a fair trial. Previously, no international standard existed that might push governments towards remedying this. Now, the new Principles and Guidelines start by stating that legal aid is an essential element of a functioning criminal justice system that is based on the rule of law, a foundation for the enjoyment of other rights, including the right to a fair trial, and an important safeguard that ensures fundamental fairness and public trust in the criminal justice process.
The instrument also 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; they increase accountability and respect for the rule of law. It sets out a framework for ensuring that a right to free legal aid is effectively implemented, in a way that is accessible, accountable and credible.
The important components recognized include:
- Prompt access to effective legal aid from the outset of police custody, through all stages of the criminal justice process;
- A right to be informed about a right to legal aid and other procedural safeguards from the moment of deprivation of liberty and before any questioning, including of the right to remain silent;
- The involvement of a range of legal aid providers including lawyers, paralegals, civil society group, and university legal clinicians and; and
- The development of a nationwide legal aid system with designated legal aid management authorities that are sufficiently staffed and resourced and are independent from undue political pressure to ensure effective and quality legal aid services delivery.
From its origin, to its design and eventually its final adoption this instrument is a real success story for civil society: It was born out of the 2004 Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System, endorsed by a conference convened by civil society groups. But the governments of Georgia and South Africa, which initiated a resolution for adopting this instrument early this year, also did a wonderful job throughout the process that ensured success. For more details about the journey, see my earlier posting on the website of our partners, Namati.
Much work now lays ahead. States need to address issues of accessibility and quality for legal aid services for poor and vulnerable defendants. They should start with research and monitoring to identify the issues, and develop context-specific institutional solutions that ensure there are no shortcuts in guaranteeing fair trial rights, regardless of the economic status.
This new instrument is also being enacted in time as the European Commission is working on a proposal for a draft EU directive on legal aid which is expected to be published for negotiations in the second half of 2013. The text of the Principles and Guidelines is reflective of the high standards that were set by the European Union directive on a Right to Information in Criminal Proceedings which was passed in April 2012. Hopefully the new UN Principles and Guidelines on Legal Aid can serve as a model and inspiration for the planned EU directive on the matter.