Moving Forwards a Global Vision for Legal Aid
By Marina Ilminska & Zaza Namoradze
Eighteen months ago, the countries of the world agreed at the United Nations that legal aid is “an essential element of a fair, humane and efficient criminal justice system”. They declared it “a foundation for the enjoyment of other rights, including the right to a fair trial,” as well as “an important safeguard that ensures fundamental fairness and public trust in the criminal justice process.”
Of course, for many around the world who find themselves in trouble with the police, the concept of getting free or affordable legal help remains an entirely alien concept, as remote as the diplomatic wrangling that led to the creation in December 2012 of the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. And despite its fine words, the UN’s Principles and Guidelines remain just that; an aspirational instrument of “soft law” which is by its nature devoid of enforcement. Their aim is instead “to provide guidance to states on the fundamental principles on which a legal aid system in criminal justice should be based.”
But last month in Johannesburg, over 250 justice and law experts from governments and civil society from almost 70 countries sat down for three days and tried to work out what to do next to turn that vision of accessible legal aid into reality. The meeting reaffirmed the need for the rapid implementation of the new UN Principles and Guidelines. It also underlined the broader impact of legal aid as a tool that can not only protect the rights of suspects, but which also “improves the administration of justice, increases public trust in justice and can boost socio-economic development at the family and community level.” As such, the final Johannesburg Declaration called on UN member states to include the rule of law and access to justice, including equal access to legal aid as a target of the post 2015 development agenda, as well as had specific asks for other criminal justice actors.
The Johannesburg meeting also came up with what might be called a road map for the long road ahead, whose centerpiece is a call for the UN Commission on Crime Prevention and Criminal Justice to establish a reporting system that will track the extent to which countries are, or are not, living up to their aspirations on legal aid provision.
This will be a long and difficult process, but there are reasons to be positive. Over the last few years we have seen an increasing recognition in a number of regions of the importance of establishing and ensuring standards for legal aid and defense rights. The Open Society Justice Initiative is proud to have played an important role in the past decade in the development of independent legal aid systems in several countries in Eastern Europe. At the same time, the European Union has introduced new EU laws aimed at standardizing procedural defense rights across its 28 members, the most recent being a directive that requires suspects to be granted access to a lawyer at the outset of police custody. A number of African and Asian countries have adopted legal aid laws for the first time, some of which recognized the important role of paralegals as providers of legal advice at an early stage of the criminal justice process- which is particularly important for countries where lawyers are very few.
The Justice Initiative is also supporting efforts to that legal aid schemes provide the legal protection and advice that meets the standards needed to eventually ensure a fair trial. A major challenge in most countries is the absence of a community of lawyers who specialize in criminal defense, and who are committed to the notion of providing a zealous defense in the best interest of their clients. In the Maldives, for instance, only five of the 700 lawyers in the country participate in the legal aid scheme. In Kyrgyzstan, the pay for legal aid lawyers is so low that only 300 responded to a call to register as legal aid defenders, rather than the hoped for 3,000.
Changing legal culture will take a long time, but new legal aid institutions are creating mechanisms to incentivize and facilitate such change. In support of this, last year we convened a group of criminal defence practitioners involved in the Legal Aid Reforms Network (LARN) to draft a model Code of Conduct for Legal Aid Lawyers in Criminal Cases and the Model Practice Standards for Criminal Defence and advance its domestic implementation.
In the meantime, the work to raise awareness about the UN Principles and Guidelines will continue, aimed at achieving change on the ground, and at laying the groundwork for the effort to win support at the UN for a monitoring system. We are encouraged by the fact that one of the key themes of the 13th UN Crime Congress in Doha, scheduled for April 2015, is implementation. In the words of June’s Johannesburg Declaration, “We are convinced that speedy and effective implementation of the UN Principles and Guidelines is crucial to the improvement of the functioning of criminal justice systems worldwide.”
Marina Ilminska is an associate policy officer for national criminal justice reform with the Open Society Justice Initiative.
Zaza Namoradze, director of the Open Society Justice Initiative’s Berlin office, oversees programs on legal capacity development, legal empowerment, legal aid reform, and access to justice.