UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems

Presented by Robert Husbands, Offfice of the

United Nations High Commissioner for Human

Rights

Covenant on Civil and Political Rights, Article 14, para. 3 (d)

In the determination of any criminal charge again him, everyone shall be entitled to the following minimum guarantees in full equality ....

To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal

assistance, of this right; and to have legal assistance assigned to him, in any case where the interest of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.

Summary of Article 14, para. 3 (d) rights Applicable only in criminal proceedings Uses the term ‘legal assistance’ rather

than legal aid Right is available to everyone in full

equality State has the duty to inform the person

of his or her right to legal assistance; and

Right to assignment of legal assistance without payment is applicable only where the interests of justice so require.

Human Rights Committee

Body of 18 independent experts that monitor implementation of the Covenant elected by

States that have ratified the Covenant If a State has accepted the individual

complaint procedure, the Committee hears individual communications that are a type of appeal from a State’s adjudicatory jurisdiction

Its Views, which are what its decisions are called, on these individual complaints, are referred to as the Committee’s jurisprudence and are non-binding

What the interest of justice so requires : Committee decisions

Minor offences that do not require prison and result in fines only do not meet the test for granting free legal assistance

Death penalty cases require free legal assistance at all stages of the proceedings

No Views on individual communications falling between these two extremes, i.e. serious crimes or any deprivation of liberty

UN Principles and Guidelines

The Principles and Guidelines mandate that whenever the accused risks any term of imprisonment, he or she must have access to legal aid

Standard is similar to that adopted by some States (e.g. USA) and the European Court of Human Rights (47 States affected)

What is meaning of legal assistance at all stages of criminal proceedings

Human Rights Committee has said that legal assistance, including free legal assistance in capital cases, is applicable at all stages of proceedings

Individual communications to date address only the first judicial preliminary hearing

What about access to free legal assistance when a person has been arrested, detained, is a suspect or charged?

UN Principles and Guidelines address this issue

Principles and Guidelines provide that when a person is arrested, detained, suspected of or charged with a criminal office the person has a right to legal aid.

Principles and Guidelines provide that at the time of deprivation of liberty and prior to any questioning, the person must be informed of their right to legal aid, the right to remain silent, and the adverse consequences of voluntarily waiving this rights

Standard in Principles and Guidelines for information, right to silence, access to free legal assistance based on national and regional law

Decision of U.S. Supreme Court in Miranda v. Arizona (1966);

Decision of the European Court of Human Rights in Salduz v. Turkey (2008)

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