ADMINISTRATION OF JUSTICE: "Legal aid, a right in itself," says UN expert

Submitted by crinadmin on Tue, 04/06/2013 - 16:33

Summary: The Special Rapporteur on the independence of judges and lawyers, Gabriela Knaul, has urged world governments to develop and sustain effective legal aid systems as an essential component of a fair and efficient justice system founded on the rule of law.

“Legal aid is both a right in itself and an essential precondition for the exercise and enjoyment of a number of human rights, including the rights to a fair trial and to an effective remedy,” said Ms. Knaul, presenting her latest report to the UN Human Rights Council. “It represents an important safeguard that contributes to ensuring the fairness and public trust in the administration of justice.”

“Legal aid should be as broad as possible,” she said, stressing that its aim “is to contribute to the elimination of obstacles and barriers that impair or restrict access to justice by providing assistance to people otherwise unable to afford legal representation and access to the court system.”

The human rights expert underlined that legal aid should not only include the right to free legal assistance in criminal proceedings, but also the provision of effective legal assistance in any judicial or extrajudicial procedure aimed at determining rights and obligations.

“States bear the primary responsibility to adopt all appropriate measures to fully realize the right to legal aid for any individual within its territory and subject to its jurisdiction,” the Special Rapporteur said. “Beneficiaries of legal aid should include any person who comes into contact with the law and does not have the means to pay for counsel.”

“The right to legal aid must be legally guaranteed in national legal systems at the highest possible level, possibly in the Constitution,” Ms. Knaul highlighted among the specific recommendations provided in her new report.

The independent expert also observed that it is up to the individual State to identify the model that can maximize access to free legal aid for all individuals within its territory and subject to its jurisdiction.

“Regardless of the structure of the legal aid programme or its formal status, it is of paramount importance that legal aid schemes be autonomous, independent, effective, sustainable and easily available in order to ensure that they serve the interests of those who need financial support to have access to justice on an equal basis with others,” she concluded.

Children and the administration of justice

In the report, the Special Rapporteur referred specifically to children:

Paragraph 84. Access to justice for children requires that all children, however they come into contact with the law, be able to participate fully in legal proceedings. While enjoying the same guarantees as adults, children require special protection, as their best interests are paramount. A recent report (by CRIN) showed that legal systems can be immensely confusing and difficult, if not impossible, to navigate for children, especially without the help of a legal professional. Legal assistance provides children with the means to understand legal proceedings, to defend their rights and to make their voices heard. In practice, however, the availability and quality of legal aid for children both in and out of detention varies dramatically from one jurisdiction to another.

Paragraph 85. Guideline 10 of the United Nations Principles and Guidelines recommends that States adopt special measures to promote children‟s effective access to justice and to prevent stigmatization. Such measures should include ensuring the right of the child to have counsel assigned to represent him or her; prohibiting any interviewing of a child in the absence of his or her lawyer or other legal aid provider; ensuring that children may consult freely and in full confidentiality with parents and/or guard ians and legal representatives; providing information on legal rights in a manner appropriate for the child‟s age and maturity, and in a language that the child can understand; encouraging, where appropriate, the use of alternative measures and sanctions to the deprivation of liberty; and ensuring that children have the right to legal aid so that deprivation of liberty is a measure of last resort and for the shortest appropriate period of time.

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