Access to a properly funded legal aid scheme is vital if those with minimal financial means are to access justice. Now, thanks to years of work and diplomatic efforts, UN member states have agreed that legal aid schemes are not just optional; they should be a basic part of any country's justice system.
The UN Commission on Crime Prevention and Criminal Justice has just adopted at a meeting in Vienna a ground-breaking resolution on "access to legal aid in criminal justice systems". The resolution adopts a set of "Principles and Guidelines" designed to ensure that access to legal information, advice and assistance is available to all through the provision of legal aid—thus realizing rights for the poor and marginalized and entrenching one of the key building blocks of a fair, humane and efficient criminal justice system.
This is the first international instrument on legal aid. It brings us a step closer to ensuring universal access to human rights—rights that remain illusory if they are only accessible to those with financial means.
The genesis of this resolution was the 2004 Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa. In 2007 ECOSOC called on the United Nations Office on Drugs and Crime to develop a global instrument. Since 2009 groups of experts, from all continents, including the Open Society Justice Initiative, have gathered several times in Vienna to draw together best practices and develop a draft that was reviewed by the Member States in 2011. The result is a practical document that traces the criminal justice system from the pretrial to post-trial stage and highlights a number of important components:
- Prompt access to legal aid at all stages of the criminal justice process.
- The involvement of a diversity of legal aid providers including lawyers, university legal clinicians and paralegals.
- The development of a nationwide legal aid system that is sufficiently staffed and resourced.
It is aimed to help states design and implement innovative, comprehensive and sustainable systems.
The resolution was sponsored by Cameroon, Canada, Croatia, Chile, Denmark (for the European Union), Georgia, Germany, Israel, Mexico, Namibia, Nigeria, Norway, the Philippines, Saudi Arabia, South Africa (for the African Group) and the United States of America and the negotiations spearheaded by Georgia and South Africa—highlighting their steadfast commitment to legal aid, both through their national systems and through efforts, such as this, to exchange and improve standards at the international level.
According to Justice Dunstan Mlambo, chairman of Legal Aid South Africa, the way in which a country treats those who come into contact with the criminal justice system is a hallmark of its commitment to human rights. Thus legal aid is not something that is nice to have; it is a must that has to be there. The adoption of the principles and guidelines is a significant and important step forward and a strong catalyst in promoting global commitment to legal aid.
This is an exciting moment—but of course intensive work now begins. If we take a quick snapshot of the reality on the ground hundreds of millions of people currently go without access to legal assistance, they are detained for months or even years without being informed of their rights and without appearing before a court.
In many countries there are literally one to two hundred lawyers for populations of over ten million people, and there are blockages both to training additional lawyers and to ensuring support and backup from qualified paralegals. Legal aid is not only important as a human right and as the foundation of a fair trial. 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, and increase accountability and respect for the rule of law.
It is critical now for states to take steps to improve their systems, remove blockages, and adopt practical country-wide strategies. UN agencies and civil society organizations need to provide flexible support, help document best practices and monitor developments. And development funders need to work with governments to support long-term strategies.