COMMISSION ADOPTS U.N. INSTRUMENT ON ACCESS TO LEGAL AID

Zaza Namoradze gives an inside view on the first international instrument to address legal aid, and what it means for criminal defendants everywhere.

On April 27, 2012 the 21^st session of the Commission for Crime Prevention and Criminal Justice (CCPCJ) adopted the resolution for the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice System. This is groundbreaking because it is the first international instrument on legal aid.  Principle One of this instrument starts by emphasizing that legal aid is an essential element for a fair, humane, and efficient criminal justice system and is a foundation for the enjoyment of other rights.

A number of important components foreseen by the resolution are:

-Prompt access to legal aid at all stages of the criminal justice process and a right to be informed about a right to legal aid and other procedural safeguards before any questioning and deprivation of liberty;

-The involvement of a diversity of legal aid providers including lawyers, CSOs, university legal clinicians and paralegals; and

-The development of a nationwide legal aid system that is sufficiently staffed and resourced to ensure effective and quality legal aid services delivery.

The Open Society Justice Initiative was a member of a working group which was convened by the UNODC in 2009 to develop a draft of this instrument based on available best practices globally. The first significant step occurred when the draft instrument prepared by this group was reviewed and endorsed by the Inter-governmental Expert Group Meeting (IGEGM) during an intense, 3 day-long debate in November 2011. At the end of the meeting, the IGEGM recommended that the document be considered for adoption by the CCPCJ at the 21^st session, on 23-27 April 2012. The process culminated in negotiations on the text of the resolution that started about two weeks before the session between its sponsors, Georgia and South Africa, and several countries that had concerns and objections to the document. Later in the week, negotiations proceeded to a final vote on the resolution in the Commission of the Whole (CoW), which consists of 40 member-states, on April 25th.

Unanimity is required for documents of this kind to be approved by the CCPCJ.  One group of countries suggested that the instrument not be adopted, but that the CoW instead ‘take note of’ it, or postpone its review and adoption for at least another year in order to allow some states more time to review the Principles and Guidelines draft. Another group of countries was not satisfied with revising the resolution, and asked to open the main text of the Principles and Guidelines for revisions. Georgia and South Africa, which led these negotiations, and the CSOs present in Vienna at the CCPCJ session were clear that opening the document for revisions would mean that the document would certainly not be adopted at the session and would likely lead to its uncertain future.  Strong arguments against opening the main text of the document were presented, among which was its endorsement by the IGEGM in November. Moreover, the CoW was reminded that the document was open for governments’ inputs since September 2011, and that all relevant UN agencies had endorsed it.

It became clear two hours before the vote on the document in the CoW that two countries would not support it unless the opening sentence of Principle 1, paragraph 14 – “Recognizing that legal aid is a fundamental human right…” – be removed. During the last minute of negotiations, Georgia and South Africa managed to convince them not to require reopening of the document, but rather to accept an editorial correction which would remove the words “a fundamental human right” from the sentence. As a result, the crucial vote in the Commission of the Whole on the 25^th of April was successful. I believe this compromise was acceptable, as its overall meaning is maintained in the Principle 1 paragraph 14 and throughout the document.

Georgia and South Africa did a wonderful job ensuring the success of this resolution, from forming a leadership at the Inter-governmental Expert Group Meeting in November, to initiating a resolution and then spearheading negotiations to secure its final adoption at the CCPCJ. This is reflective of their continued commitment to legal aid in general.  I and my colleagues from the Open Society Justice Initiative, jointly with the International Legal Foundation and Penal Reform International, worked closely with the sponsoring countries and the UNODC Secretariat throughout these efforts.  Altogether, CSOs made an important contribution towards the adoption of a good quality document.

The final 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.

The link below is for the document that was adopted:

http://www.un.org/Docs/journal/asp/ws.asp?m=E/CN.15/2012/L.14/Rev.1

It will now proceed to the ECOSOC in June and then to the UN GA for final adoption in December of 2012, which, as I understand, is a formality.

Significance of this instrument is tremendous. Although applicable international standards suggest express governmental responsibility to provide free and effective legal assistance to all indigent criminal defendants, there is little understanding among policy-makers of the need for an organized, systematic and purposeful response to fulfill this responsibility.  As a result, the most poor and vulnerable are detained and sentenced to prison without effective legal representation and, consequently, fair trial. No international standards prescribe particular systems or structures to ensure the delivery of legal aid, but fortunately not any more- since the adoption of the new instrument. From my own personal experiences of having been closely involved in institutional legal aid reforms in Lithuania, Bulgaria, Georgia, Moldova, Ukraine, Mongolia, Sierra Leone and Indonesia one of the most crucial questions that all policymakers and practitioners face when they design and implement reforms in the field is how to provide publicly funded services in the most cost-efficient manner. The UN Principles and Guidelines on Legal Aid were designed to respond to these needs.

Legal aid is not only important as a human right but also as a 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.  This is well documented in the publication Improving Pretrial Justice: The Roles of Lawyers and Paralegals which I had a pleasure to launch at a side event during the CCPCJ session in Vienna on April 23, 2012.

The new UN instrument is a major step forward in making legal aid and related defence rights a reality. It provides a useful framework for policymakers and practitioners to develop context-specific approaches to institutional legal aid reforms and to ensure more effective international assistance programming.

On the same day, the European Union passed a new law on a Right to Information in Criminal Proceedings. This directive ensures that police and prosecutors in the 27 member-states provide to everyone who is suspected and detained a written information upon arrest about their rights – in a Letter of Rights – drafted in a simple, everyday language and irrespective whether they ask for it or not. The Letter of Rights will contain practical details of such rights as the right to remain silent, right to a lawyer, right to information about charges and other procedural rights and safeguards. This directive is passed as a part of the legislative agenda to strengthen rights of suspects and accused in criminal proceedings in the EU, which includes plans for adopting   directives on access to a lawyer and access to legal aid. The Justice Initiative has been engaged in advocacy efforts in the EU to ensure adoption of strong standards on these issues. More information on these developments can be found at Legal Aid Reformers’ Network, which has been formed with the Justice Initiative’s support.

Zaza Namoradze
Director of Budapest Office
Open Society Justice Initiative/