Access to legal aid is vital in every step of criminal proceedings. In 2013, the United Nations passed a resolution, entitled the United Nations Principles and Guidelines on Access to Legal Aid in the Criminal Justice System (“Principles and Guidelines”).[1] This resolution recognizes that legal aid is an essential element of a “fair, humane, and efficient criminal justice system,” and is the foundation for the enjoyment of other human rights.[2] The Principles and Guidelines request that member states strengthen access to legal aid.[3] Despite international measures, seeking to increase the accessibility of legal services, various countries are not providing individuals with adequate legal representation in their criminal justice systems. Because of the human necessity of legal aid during trial, the international community needs to increase efforts to ensure countries provide adequate legal representation and assistance.
Access to legal aid is well understood in the context of fair trials, and was first established in the Universal Declaration of Human Rights,[4] the International Covenant on Civil and Political Rights (“ICCPR”)[5] and the right to a fair trial under article 6 of the European Court of Human Rights (“ECHR”).[6] State parties to the ICCPR are obligated to provide legal aid in criminal cases when the accused do not have the means to hire a lawyer and when the interest of justice so requires.[7] The United Nations Principles and Guidelines further define circumstances in which individuals are entitled to legal aid; the Principles and Guidelines also establish recommendations for increasing access to legal aid.[8] Anyone who is arrested, detained, suspected of, or charged with a criminal offense – punishable by a term of imprisonment or death – is entitled to legal aid.[9] Access to legal aid is necessary throughout all stages of criminal proceedings, from pretrial hearings to post-trial hearings.[10] Additionally, the ICCPR requests that the United Nations Office on Drugs and Crime (“UNODC”) continue providing advisory services and technical assistance to member states in the area of criminal justice reform. This will make the benefits of the Principles and Guidelines more widely available.[11]
Denial of access to legal aid substantially affects the fairness of the proceedings as a whole.[12] For example, access to legal aid can protect individuals suspected of a crime from intimidation, ill-treatment, and torture.[13] These methods are used to “extract information and confessions,” “intimidate, [ ] extort money, as a means of punishment, and to demonstrate authority.[14] The UN reported that widespread torture practices were utilized – primarily in police detention facilities – in 11 of 15 countries visited by the Special Rapporteur between 2005 and 2009.[15] This can leave many confessing to crimes that they did not commit.[16] Further, access to legal aid can minimize the risk of unlawful pretrial detention.[17] In Brazil, for example, almost half of the prison population was in pretrial detention.[18] Upon receiving legal assistance, one third of those in pretrial detention were released within twenty days.[19] Legal assistance, even at early stages of legal proceedings, can prevent arbitrary and excessive pretrial detention.[20]
Despite establishing the importance of access to legal aid and the general requirements for member states, many global citizens are left without access to effective legal services during criminal proceedings.[21] Unfortunately, the Principles and Guidelines leave room for state interpretation regarding when a person becomes a “suspect,” and is thus entitled to legal aid.[22] The Principles and Guidelines are also limited in scope, as they do not establish how effective legal aid must be.[23] The Principles and Guidelines establish a right to access legal aid; however, in countries like the United States, a lack of funding prevents public defenders from providing criminal defendants with a robust legal defense.[24] Such inadequate access does not meet the standards outlined in the Principles and Guidelines.[25]
While countries are required to provide legal aid to criminal defendants, certain financial restrictions prevent access to legal aid.[26] The UN Global Study on Legal Aid Report found a major disparity between the percentage of those who should have received legal aid during a criminal proceeding and those who actually received that aid.[27] Many UN member states require evidence of a certain status – low income, being a welfare recipient, a member of a vulnerable or indigent population, or evidence of a family hardship – for an individual to qualify for the aid the country is capable of providing.[28] The international community needs to establish more effective ways to increase universal access to legal aid. Although the UN has established a positive right for access in criminal proceedings, many individuals are left without such legal aid, to which they are entitled under the Principles and Guidelines and the ICCPR. It is “difficult to see how improvements on legal aid can be made, without also having strong safeguards for the right to legal assistance.”[29] The international legal community should work to solidify safeguards that increase accessibility to legal aid. To do so, the UN and other international bodies must increase the accessibility of laws and regulations, invest in legal aid, and increase access to resources. Both of these measures have proven effective in various countries, such as Kenya, Peru, and Malawi.[30] Finally, the UN should provide a clear definition for when someone becomes a “suspect” in a legal proceeding, as this has served as a primary reason for a lack of legal assistance.
[1] G.A. Res. 67/187, U.N. Doc. A/67/458, at 20 (Dec. 20, 2012).
[2] Id.
[3] Id.
[4] G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).
[5] G.A. Res. 2200A (XXI), International Covenant on Civil and Political Rights, art. 14 (Dec. 16, 1966).
[6] 4.XI. Eur. Ct. H.R. art. 6 (1950); see Asher Flynn et al., Legal Aid and Access to Legal Representation: Redefining the Right to a Fair Trial, 40 Melbourne Univ. L. Rev. 207, 214 (2016).
[7] Global Study on Legal Aid, U.N. Office on Drugs and Crime, at 113, https://www.undp.org/publications/global-study-legal-aid (last accessed Oct. 21, 2024) [hereinafter Global Legal Aid Study].
[8] Id.
[9] Supra note 1, at 20.
[10] Asher Flynn et al., Legal Aid and Access to Legal Representation: Redefining the Right to a Fair Trial, 40 Melbourne Univ. L. Rev. 207, 214 (2016).
[11] Supra note 1.
[12] Auke Williams, The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems: A Step Toward Global Assurance of Legal Aid?, 17 New Crim. L. R. 184, 195 (2014)
[13] Early access to legal aid in criminal justice processes: a handbook for policymakers and practicioners, U.N. Office on Drugs and Crime, at 11, https://www.unodc.org/documents/justice-and-prison-reform/eBook-early_access_to_legal_aid.pdf.
[14] Id.
[15] Id.
[16] Id.
[17] Id. at 16.
[18] Id.
[19] Id.
[20] Id. at 15.
[21] Williams, supra note 12.
[22] Id.
[23] Id.
[24] Id. at 210-11.
[25] Id.
[26] Global Legal Aid Study, supra note 7, at 113.
[27] Id. at 111.
[28] Id. at 112.
[29] Williams, supra note 12.
[30] Kartik Saboo, Data Illustrates the Sheer Impact of Improving Access to Justice, https://prosperitydata360.worldbank.org/en/stories/2023/data-illustrates-the-sheer-impact-of-improving-access-to-justice (last visited Sep. 29, 2024).
