AMERICAN UNIVERSITY
School of Public Affairs
Justice Programs Office
INTERNATIONAL PERSPECTIVES ON
INDIGENT DEFENSE AND LEGAL AID:
SHARED CHALLENGES AND THE ROAD FORWARD
Sam Morales Flores
Graduate Research Assistant
2014 Candidate, Master of Arts, School of Public Affairs
American University
Justice Programs Office
American University
Washington, D.C.
May 7, 2014
TABLE OF CONTENTS
I.
INTRODUCTION: DEFINING LEGAL AID; LOOKING AT INTERNATIONAL NORMS; THE CHALLENGE OF AUSTERITY ............... 1
II.
LEGAL AID SYSTEMS INCLUDED IN THIS REPORT: LIMITATIONS OF AVAILABLE DATA; AREAS FOR
FUTURE RESEARCH ........................................................................................................................................ 2
TABLE 1: ADMINISTRATIVE LEVEL FOR PROVISION OF LEGAL AID BY COUNTRY
III.
SUMMARY DESCRIPTION OF SELECTED LEGAL AID SYSTEMS AROUND THE WORLD .................................................. 2
TABLE 2: LEGAL AID SYSTEMS BY COUNTRY: KEY FEATURES
IV.
ELIGIBILITY FOR LEGAL AID SERVICES: TYPES OF OFFENSES AND INDIVIDUAL QUALIFICATIONS
(MEANS, MERITS, ETC.).................................................................................................................................. 8
TABLE 3: ELIGIBILITY REQUIREMENTS FOR LEGAL AID BY COUNTRY
V.
MORE DETAILED DESCRIPTION OF THE LEGAL AID SYSTEMS OF A CROSS SECTION OF COUNTRIES............................. 10
AFGHANISTAN ......................................................................................................................................... 10
ARGENTINA ............................................................................................................................................. 10
AUSTRALIA ............................................................................................................................................. 11
BRAZIL ................................................................................................................................................... 11
CANADA ................................................................................................................................................. 11
CHINA .................................................................................................................................................... 12
ENGLAND AND WALES .............................................................................................................................. 12
FINLAND ................................................................................................................................................. 12
GERMANY ............................................................................................................................................... 12
HONG KONG ........................................................................................................................................... 13
INDIA ..................................................................................................................................................... 13
INDONESIA .............................................................................................................................................. 13
IRELAND ................................................................................................................................................. 13
LATVIA ................................................................................................................................................... 13
THE NETHERLANDS ................................................................................................................................... 14
NEW ZEALAND......................................................................................................................................... 14
NORWAY ................................................................................................................................................ 14
PAKISTAN ............................................................................................................................................... 14
SOUTH AFRICA ......................................................................................................................................... 15
TAIWAN ................................................................................................................................................. 15
TANZANIA ............................................................................................................................................... 15
VI.
SPENDING ON LEGAL AID: THE SIGNIFICANCE OF ADEQUATE FUNDING; THE DIFFICULTY IN COMPARING
FUNDING LEVELS, AND THE NEED FOR CONTEXT; INFORMATION ON THE RELATIVE FUNDING OF A SELECTION
OF COUNTRIES ............................................................................................................................................ 15
FIGURE 1 AND TABLE 4: PUBLIC SPENDING ON LEGAL AID AS A PERCENTAGE OF GROSS DOMESTIC PRODUCT (GDP)
FOR THE MOST RECENT YEAR AVAILABLE
VII.
CONCLUSION: CHALLENGES AND OPPORTUNITIES; AN OPTIMISTIC OUTLOOK FOR THE FUTURE OF LEGAL AID ............. 17
Abstract
How does indigent defense—commonly included under the umbrella term of legal aid and known as such in many countries—work outside of the United States? What sort of theoretical leverage can be gained, and what practical knowledge
can be learned from the legal aid systems of other countries? Are there historical or contemporary trends that illuminate
the emergent concerns in legal aid? This paper surveys legal aid systems around the world and attempts to provide core
information, make comparisons across countries, and bring forward some of the significant global trends in legal aid.
Beyond presenting the basic facts of legal aid across countries and historically, this report emphasizes two divergent
themes. First, the last several years have witnessed the emergence of an international consensus on the fundamentals of
legal aid, even within the context of the diversity of local legal frameworks; second, in recent years government austerity
has posed serious challenges to the fulfillment of these fundamental obligations. This paper concludes that legal aid is
caught in a paradox: while formal government commitments to legal aid are expanding, the actual nuts-and-bolts services
involved in legal aid are being cut in many countries, leaving the future of legal aid murky.
INTRODUCTION: DEFINING LEGAL AID; LOOKING
AT INTERNATIONAL NORMS; THE CHALLENGE OF
AUSTERITY
I.
While the right to a fair trial is considered fundamental
for human dignity in most countries, the corollary of
that—that those who enter the justice system will receive competent legal representation regardless of their
financial means—has not been implemented in the
same form, or at the same speed, everywhere. The example of the United States is instructive: despite the
Sixth Amendment’s guarantee of “Assistance of Counsel,” it was not until the 1963 Supreme Court opinion in
Gideon v. Wainwright that this protection was made
concrete in many criminal proceedings.
This paper surveys a cross section of legal aid systems
around the world and attempts to provide core information, make comparisons across countries and bring
forward some of the significant global trends in legal aid.
Beyond presenting the basic facts of legal aid across
space and time, this report emphasizes two divergent
themes: first, the emergence of an international consensus on the fundamentals of legal aid, even within the
context of the diversity of local legal frameworks; and
second, the challenges posed by government austerity
in recent years to the fulfillment of these fundamental
obligations.
HOW IS “LEGAL AID” DEFINED?
It is worth noting that the United States prefers separate
terminology from much of the rest of the world, though
its legal aid practices are not vastly different from other
Western countries. What is termed “public defense” or
“indigent defense” in the United States is generally
known as “legal aid” in other countries. Legal aid is an
umbrella term that covers, depending on the setting,
free or low cost legal assistance from lawyers, paralegals
and other legal professionals in the realms of criminal,
civil, administrative and even international law. Different societies emphasize different forms of legal aid, but
international norms establishing minimum standards
have emerged over time.
DEVELOPING INTERNATIONAL CONSENSUS
While criminal and civil law systems reside primarily at
the national and subnational levels, there are international laws and norms that serve as a basis of comparison between them. One of the earliest of these instru-
1
http://www.unodc.org/documents/justice-and-prison-reform/UN_
principles_and_guidlines_on_access_to_legal_aid.pdf.
ments is the Universal Declaration of Human Rights, approved by the United Nations General Assembly on December 10, 1948. In it, the right to a fair trial is guaranteed. Many justice systems around the world, and the
United Nations itself, have interpreted a right to counsel, irrespective of financial resources, as necessary to a
fair trial. The Convention for the Protection of Human
Rights and Fundamental Freedoms, commonly known as
the European Convention on Human Rights, made this
connection explicit as early as 1950.
The gradual evolution and expansion of the right to legal
assistance around the world lead to the United Nations
Economic and Social Council approving the United Nations Principles and Guidelines on Access to Legal Aid in
Criminal Justice Systems on December 20, 2012. This
document affirms the necessity of legal aid to the rule of
law and sets international standards for the substantive
rights to be afforded to those charged with a criminal
offense.1 It defines legal aid as "legal advice, assistance
and representation for persons detained, arrested or imprisoned, suspected or accused of, or charged with a
criminal offence and for victims and witnesses in the
criminal justice process that is provided at no cost for
those without sufficient means or when the interests of
justice so require."2 It also includes a wide sphere of activities within the concept of legal aid, which is "intended to include the concepts of legal education, access to legal information and other services provided for
persons through alternative dispute resolution mechanisms and restorative justice processes."3
The expansive notion of legal aid set out by the United
Nations is significant. It is not restricted to defendants,
but includes others who may be involved in the legal system, e.g. “victims and witnesses.” Furthermore, it considers a wide swath of activities that take place outside
the courtroom to fall under guarantees of legal aid, including the ability to have access to legal information
and to be educated about the justice system. Finally, it
is not only punitive justice mechanisms that are important, but also “alternative dispute resolution mechanisms and restorative justice processes.” The upshot is
that under the United Nations Principles and Guidelines,
legal aid includes a much wider array of services than
what is commonly understood as indigent defense in the
United States. These include forms of education, outreach and community- and victim-centered conceptions
of justice, which help to make legal aid more centered
on the public good than on the act of crime itself.
2
3
Ibid.
Ibid.
The unfortunate wrinkle is that these progressive developments are occurring at the same time as many legal
aid systems are facing budget cuts and the curtailment
of services. This is especially the case in some of the
countries with the oldest and best funded legal aid systems like England and Wales, The Netherlands and New
Zealand. Much of this is due to austerity measures put
in place by governments following the financial crisis of
2007-2008, although some systems had been changing
much earlier. Paradoxically, formal commitments to legal aid are expanding at the same time as the actual services involved in legal aid are being cut in many countries.
II.
LEGAL AID SYSTEMS INCLUDED IN THIS REPORT: LIMITATIONS OF EXISTING DATA; AREAS
FOR FUTURE RESEARCH
This report provides a descriptive survey of a cross-section of legal aid systems around the world. An effort has
been made to include systems from Europe, North
America, Latin America, Asia, Africa and Oceania in order
to provide geographic diversity. However, there is an admitted European bias in the case selection, due in part
to the greater availability of secondary sources on Europe that provide a historical, qualitative context in
which to assess legal aid and which provide some analysis of the goals governments set forth about their own
legal systems.
The study of legal aid regimes in the developing world is
an immense scholarly opportunity, especially given that
it is in these countries that academic, nonprofit and intergovernmental work could have the most impact on
the development of legal aid provision. Most of Europe
is bound by treaties and rulings by the European Court
of Justice that have set minimum thresholds for legal assistance in national justice systems, meaning that much
of the remaining work of normalizing the right to a fair
trial lies outside of the West. Finally, in many developing
countries, the sheer lack of lawyers, judges and legal educators, as well as the use of arbitrary extrajudicial au-
thority, pose significant obstacles to the effective delivery of legal aid, regardless of the laws on the books or
the treatment individuals may experience once they actually have the chance to enter the formal civilian legal
system. Legal systems in Europe and North America
have flaws, of course. However, they are generally older,
better developed and more commonly studied than
those of the developing world.
III.
SUMMARY DESCRIPTION OF LEGAL AID SYSTEMS AROUND THE WORLD
The following tables provide some key facts about the
legal aid systems of a diverse group of countries around
the world. The information provided includes the classification of legal aid systems by level of government, the
administrative organization, the nature of legal aid providers, the date of inception and founding legislation
and any special features worth noting. While most countries have some sort of national, public oversight of legal
aid, many include state or local levels of administration.
Some also involve private providers of legal assistance in
the system. In general, the patterns of administration on
this measure follow the structure of government overall,
e.g. Australia and the United States, both federal systems of government, have both national and subnational forms of legal aid, while New Zealand and England
and Wales, both unitary systems of government, have
entirely national administrations. Another cleavage
within the sample relates to the scope of the legal aid
provided, which ranges from expansive and well-funded
(e.g. Taiwan, Hong Kong) to underdeveloped (e.g. China,
Indonesia) and, in some cases, nonexistent (e.g. Pakistan).
Table 1 depicts the administrative level at which legal aid
systems operate in each of the countries included in this
paper. Most legal aid systems are national, at least in
terms of formal oversight. Many large countries, however, possess dual national/subnational or solely subnational legal aid systems. This is the case in India, China,
the United States, Brazil and Germany, among others.
TABLE 1. ADMINISTRATIVE LEVEL FOR PROVISION OF LEGAL AID BY COUNTRY
Level of Administration of Legal Aid Systems
National level only
Countries
Afghanistan, Argentina, Bangladesh, Colombia, Ecuador, England and Wales, Greece,
Indonesia, Ireland, Israel, Japan, Latvia, Netherlands, New Zealand, Nicaragua, Northern Ireland, Norway, Panama, Peru, Scotland, South Africa, Uruguay, Venezuela
National in conjunction with state/provincial level; US: Na- Australia, India, People’s Republic of China, United States of America
tional level for federal cases; state/county levels for cases
in state and local justice system(s)
Only state/provincial and/or local levels
Brazil, Canada, Finland, Germany, Hong Kong
Public-private partnership, mutual oversight
Chile, Taiwan
No legal aid administered by government
Pakistan, Tanzania
International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward. Sam Morales
Flores. Masters Candidate, American University. May 7, 2014.
2
Table 2 provides more detailed information on each of
the systems, including each of the factors mentioned in
the first paragraph of this section. The first column on
the left lists country names. The next two columns list
key facts on the organization of the legal aid system and
its providers, i.e. the level of government, the administrative organization, the nature of legal aid in each
county and whether there are special services or
unusual obstacles. The last column on the right documents the sources for each country. Many are affiliated
with the International Legal Aid Group, whose stated
mission is “to improve evidence-based policy-making in
the field of poverty legal services through discussion and
dialogue relating to international developments in policy research.”4
TABLE 2. LEGAL AID SYSTEMS BY COUNTRY: KEY FEATURES
Country
Afghanistan
Organization of Legal Aid
System and Providers
National system
The Ministry of Justice regulates the Legal
Aid Board, which nominally funds legal
costs for indigent defendants
Special Aspect (Services
and Obstacles)
Legal aid is nominally available in 34
provinces; in practice, it is overwhelmingly concentrated in Kabul
LAOA: http://www.laoa.af/index.html
-ILF-Afghanistan: http://theilf.org/our-programs/ilf-afghanistan
Justice for All Organization: http://www.opensocietyfoundations.org/voices/clinic-offers-afghan-women-legal-aid-and-hope
Defense lawyers are traditionally (and remain) private practitioners
Sarah Han, “Legal Aid in Afghanistan” (2012):
http://www.afghanistan-analysts.
org/wp-content/uploads/downloads/2013
/08/20120417-SHan-Legal_Aid_in_Afghan
istan1.pdf
Rafael Caballero, “Indigent Defense Services in
Latin America (20 Countries)”.www.american.edu/justice/spa/jpo
Legal aid provided for in 2004 constitution (although precedent exists dating
back to the 1964 constitution)
Argentina
Sources
National system
Administered by the Public Ministry
Provided by public defenders within the
Public Defense Ministry
Australia
Dates back to the 1994 constitution
Federal system with most criminal legal
aid at the subnational level and most civil
at national level
National Ministry of Justice and state/territorial legal aid commissions
Mix of salaried lawyers and private lawyers
Large size of the country inhibits legal services in sparsely populated areas
Australian government's website: http://australia.gov.au/topics/law-and-justice/legal-services/legal-aid
Special legal aid services are provided for Aboriginal and Torres Strait
Islanders (ATSILs)
National Legal Aid (NLA): http://www.nationallegalaid.org/
-NLA, “A New National Policy for Legal Aid in
Australia,” 2007: http://www.nationallegalaid.org/assets/General-Policies-and-Papers/NLA-Policy-11-07.pdf
Based on 1973 “Commonwealth Persons”
law, but has gone through extensive reform
Bangladesh
National system
As of 2010, “a full time legal aid office staff has been appointed in
National Legal Aid Services Organization
every District Court” by NLASO
(NLASO), a government body, administers
(NLASO website)
legal aid
ILAG report on Australia, 2013:
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Australia_National_Report.pdf
NLASO: http://www.nlaso.gov.bd/
Bangladesh Legal Aid and Services Trust:
http://www.blast.org.bd/
Provided by panel lawyers of the Bangladesh Judicial Service
Founding legislation is the Legal Aid Services Act of 2000
4
http://www.ilagnet.org/about.php.
International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward. Sam Morales
Flores. Masters Candidate, American University. May 7, 2014.
3
TABLE 2. LEGAL AID SYSTEMS BY COUNTRY: KEY FEATURES
Country
Brazil
Organization of Legal Aid
System and Providers
Federal System
Loose oversight by the Office of Public Defenders in Brasilia, with significant regional
autonomy
Special Aspect (Services
and Obstacles)
Progressive laws regulating legal aid,
but irregular coverage in practice
Widespread arbitrary detention is a
particularly serious concern
Provided by public defenders in local offices throughout the country, but some
private attorneys are hired as well
Modern legal aid founded in 1988 Constitution
Canada
Subnational (provincial) system
Administered and funded by provincial
governments; the majority of governing
bodies are “non-profit societies or corporations” (Schaffter 2013, 3)
Most provincial legal aid systems use a mix
of public and private lawyers
Provincial systems were founded at various times
National system involving public-private
partnership
Chile
Administered by four Corporations of Judicial Assistance and the Foundation for Legal Assistance and Family Justice
Canada’s large size and low population density pose challenges to rural
provision of services
“Aboriginal customs and traditions
have been influential in developing
alternative criminal justice approaches, such as healing and sentencing circles” (Schaffter 2013, 1)
Sources
Cleber Alves, ILAG report on Brazil, 2011:
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Helsinki_2011/national_reports/Brazil_National_Report_
ILAG_2011.pdf
Report by the Office of the High Commissioner for Human Rights:
http://www.ohchr.org/EN/NewsEvents/Pag
es/DisplayNews.aspx?NewsID=13197&LangID=E
Jacqueline Schaffter, ILAG report on Canada, 2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Canada_National_Report.pdf
Rafael Caballero, “Indigent Defense Services
in Latin America (20 Countries)”.www.american.edu/justice/spa/jpo
Provided by public lawyers
Authorized by the 1980 Constitution
Federal system
China
Administered by Legal Aid Department
within the Ministry of Justice
Mix of staff lawyers, private lawyers and
other legal workers at the local level
Colombia
1996 amendments to the Criminal Procedure Law and Lawyer’s Law established legal aid centers throughout the country
National system
Administered by the Public Ministry
Xia Hui, ILAG report on China, 2013:
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/China_National_Report.pdf
Rafael Caballero, “Indigent Defense Services
in Latin America (20 Countries)”.www.american.edu/justice/spa/jpo
Provided by lawyers hired by the Public
Ministry, but some student lawyers are
hired as part of their training
Costa Rica
Dates back to 1830 originally, but to 1994
in its present form
National system
Administered by the Supreme Court of Justice
Rafael Caballero, “Indigent Defense Services
in Latin America (20 Countries)”.www.american.edu/justice/spa/jpo
Provided by public defenders
Dates back to 1842 Organic Rule of the Judicial Power
International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward. Sam Morales
Flores. Masters Candidate, American University. May 7, 2014.
4
TABLE 2. LEGAL AID SYSTEMS BY COUNTRY: KEY FEATURES
Country
Ecuador
Organization of Legal Aid
System and Providers
National system
Special Aspect (Services
and Obstacles)
Sources
Rafael Caballero, “Indigent Defense Services
in Latin America (20 Countries)”.www.american.edu/justice/spa/jpo
Administered by the Office of the Ombudsman and the Public Defender Office
Provided by lawyers within these two departments
England and
Wales
Dates back to 2008 Constitution
National system
United Kingdom Ministry of Justice:
http://www.justice.gov.uk/about/laa
Administered by the Legal Aid Agency
Steve Hynes, ILAG report on England and
Wales, 2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/England_and_Wales_National_Report.pdf
Provision of legal aid is typically by private
attorneys who are reimbursed by the government
Finland
Present legal aid regime was created by
the 2012 Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act
Subnational (state) system
Finnish government’s legal aid website, English version:
http://www.oikeus.fi/oikeusapu/en/index.html
Legal aid is administered by state legal aid
offices, with oversight by the courts
Public and private legal aid attorneys
Almost completely covered by private
practitioners
Merja Muilu, ILAG report on Finland, 2013:
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Finland_National_Report.pdf
Matthias Kilian, ILAG report on Germany,
2011: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Helsinki_2011/national_reports/National_Report_-_Germany.pdf
Legal aid emerges from the interpretation
of German courts of the Grundgesetz, the
German Basic Law of 1949
Subnational (Special Administrative Region) system
LASC: http://www.lasc.hk/eng/about/establishment.html
Present system dates back to the Legal Aid
Act of 2002
Germany
Subnational (state) system
Legal aid is administered by state courts
Hong Kong
A high percentage of the population
is covered by legal expenses insurance (“judicare”)
Administered by the Legal Aid Department, which is in turn overseen by the Legal Aid Services Council (LASC)
Both lawyers in private practice and inhouse lawyers
India
Present system dates back to the Legal Aid
Services Council Ordinance of 1996
Federal system
Administered by the National Legal Services Authority (NALSA), with state and
district offices occupying the lower levels
of a pyramid structure
Witman Hung Wai-Man, ILAG report on
Hong Kong, 2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Hong_Kong_National_Report.pdf
Particular emphasis in the legal aid
system on lok adalat, a mechanism
for alternative dispute resolution, as
well as on other means of preventing cases from reaching court
NALSA: http://nalsa.gov.in/
Public officers
Legal aid system dates back to the Legal
Services Authorities Act of 1987
International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward. Sam Morales
Flores. Masters Candidate, American University. May 7, 2014.
5
TABLE 2. LEGAL AID SYSTEMS BY COUNTRY: KEY FEATURES
Country
Indonesia
Organization of Legal Aid
System and Providers
National system (though some payments
are made by provincial and local governments)
Administered by the National Law Development Agency (BPHN), within the Ministry of Law and Human Rights
Special Aspect (Services
and Obstacles)
Legal aid is only available in 16 of Indonesia’s 34 provinces
Criminal legal aid only available to
those facing the death penalty or fifteen or more years in prison
Sources
Erna Ratnaningsih, ILAG report on Indonesia, 2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Indonesia_National_Report.pdf
Legal services provided by private lawyers
who receive funding from the government
Legal aid dates back to Law No. 16 of 2011
National system
Ireland
Ireland Legal Aid Board website:
http://www.legalaidboard.ie/LAB/Publishing.nsf/Content/Home
Administered by the Legal Aid Board, an
independent government body (civil), or
courts (criminal)
Public and private attorneys (civil), private
attorneys (criminal)
Controlling legislation includes the Civil Legal Aid Act of 1995 and the Criminal Justice
Legal Aid Act of 1962
National system
Israel provides legal aid to defendants “regardless of their nationality
Administered by the Office of the Public
and place of residence” (Mann and
Defender (OPD)
Weiner 2003)
Provided by public defenders employed
within the OPD
Israel
Established in 1996
National system
Latvia
Provided by sworn advocates who are reimbursed by the state
The Netherlands
Administered by the Legal Aid Board
within the Ministry of Security and Justice
Private and public providers, with private
providers being hired for more involved
cases
Present system emerges from the Legal
Aid Act of 1994
New Zealand
National system
Administered by the Ministry of Justice
Private providers of legal services are reimbursed by the government
New Zealand
(cont.)
Current system dates back to a 2009 report on legal aid reform
Kenneth Mann and David Weiner. 2003.
“Creating a Public Defender System in the
Shadow of the Israeli-Palestinian Conflict.”
New York Law School Law Review 48: 91871.
Agris Batalauskis, ILAG report on Latvia,
2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Latvia_National_Report.pdf
Administered by the Legal Aid Administration within the Ministry of Justice
Legal aid system dates back to the 2005
State Ensured Legal Aid Law
National system
Moling Ryan, ILAG report on Ireland, 2013:
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Ireland_National_Report.pdf
Significant investment in two new
programs, the “Roadmap to Justice”
website, which takes users through a
visual guide of the justice system to
help them determine their needs;
and the introduction of legal aid
counters, walk-in clinics spread
throughout the country that serve as
points of face-to-face first contact
between potential clients and legal
aid providers
Legal representation in cases before
the Waitangi Tribunal, which handles Maori claims against the Crown
for breaches of the country’s founding treaty, is always provided without cost
Lia Combrink and Susanne Peters, ILAG report on The Netherlands, 2013:
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Netherlands_-_Brochure__Legal_Aid.pdf
New Zealand Ministry of Justice:
http://www.justice.govt.nz/services/legalhelp/legal-aid
“Transforming the Legal Aid System: Final
Report and Recommendations,” 2009:
http://www.justice.govt.nz/policy/justicesystem-improvements/publications/ global-
International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward. Sam Morales
Flores. Masters Candidate, American University. May 7, 2014.
6
TABLE 2. LEGAL AID SYSTEMS BY COUNTRY: KEY FEATURES
Country
Nicaragua
Organization of Legal Aid
System and Providers
Special Aspect (Services
and Obstacles)
Sources
publications/t/transforming-the-legal-aidsystem/
Rafael Caballero, “Indigent Defense Services
in Latin America (20 Countries)”.www.american.edu/justice/spa/jpo
National system
Administered by the Public Defender’s Office
Provided by public defenders
Northern Ireland
Established by the 1987 Constitution
National system
NILSC: http://www.nilsc.org.uk
Administered by the Northern Ireland
Legal Services Commission (NILSC)
Paul Andrews, ILAG report on Northern Ireland, 2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Northern_Ireland_National_Report.pdf
Mix of solicitor network and contracts
Norway
Legal aid dates back to the Legal Advice
and Assistance Act of 1965, though the
present devolved form only began in 2010
National System
Administered by the Ministry of Justice
Private providers
Legal aid system dates back to 1893
Pakistan
No legal aid system
Most legal aid is provided by NGOs
Panama
Only guaranteed situation in which
one can receive the assistance of a
lawyer at state expense is in the
case of appealing a death sentence
National system
Administered by the Institute for Public
Defense
Olaf Ronning, ILAG report on Norway, 2013:
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Norway_National_Report_Final.pdf
Supreme Court of Pakistan: http://supremecourt.gov.pk/web/page.asp?id=1603
List of Pakistani legal aid NGOs:
http://www.ngos.org.pk/Legal/legal_assistance_ngos.htm
Rafael Caballero, “Indigent Defense Services
in Latin America (20 Countries)”.www.american.edu/justice/spa/jpo
Provided by public defenders who are appointed by the Supreme Court of Justice
Established by Constitution of 1972
National system
Peru
Rafael Caballero, “Indigent Defense Services
in Latin America (20 Countries)”.www.american.edu/justice/spa/jpo
Administered by the Office of the Ombudsman
Ombudsman hires and manages public defenders to provide legal aid services
Scotland
Dates back to 1993 Peruvian Constitution
National system;
Administered by the Scottish Legal Aid
Board (SLAB), an independent government
organization;
Mix of public solicitors and private (listed)
solicitors;
Legal aid dates back to changes in the
Court of Session and the sheriff courts in
1950
Geography poses some problems for
providing legal aid in the sparsely
populated highlands
Scottish Legal Aid Board, ILAG report on
Scotland, 2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Scotland_National_Report.pdf
Scottish Legal Aid Board:
http://www.slab.org.uk/index.html
International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward. Sam Morales
Flores. Masters Candidate, American University. May 7, 2014.
7
TABLE 2. LEGAL AID SYSTEMS BY COUNTRY: KEY FEATURES
Country
South Africa
Organization of Legal Aid
System and Providers
National system
Staff attorneys at legal aid offices around
the country
Special Aspect (Services
and Obstacles)
Uses the same criteria for granting
legal aid for citizens and noncitizens
Administered by Legal Aid South Africa
Legal aid established by Legal Aid Act 22
during the apartheid era (1969)
Taiwan
National system involving public-private
partnership
Administered by the Legal Aid Foundation
(LAF), a government organization that is
overseen by the Judicial Yuan
Taiwan, like South Africa, uses the
same criteria for granting legal aid
for citizens and noncitizens
Sources
Vidhu Vedalankar and Brian Nair, ILAG report on South Africa, 2013:
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/South_Africa_National_Report.pdf
LAF: http://www.laf.org.tw/en/index.php
Mixed public and private providers
Tanzania
Present system of legal aid dates back to
1994
Incipient legal aid system
Alvar Mwakyusa, “Tanzania: Comprehensive
Legal Aid Reform On the Cards,”: http://allafrica.com/stories/201205180040.html
No administration yet created
Most providers of legal aid are informal,
e.g. university clinics or paralegals
Uruguay
Legislation to establish a legal aid framework passed in 2012
National system
Rafael Caballero, “Indigent Defense Services
in Latin America (20 Countries)”.www.american.edu/justice/spa/jpo
Administered by the Supreme Court of Justice
Provided by public defenders
Venezuela
Dates back to the 1967 Constitution
National system
Administered by the Public Defender Office and the Office of the Ombudsman
The Public Defender Office provides
criminal legal aid, while the Office of
the Ombudsman provides other (e.g.
civil, human rights) legal aid
Rafael Caballero, “Indigent Defense Services
in Latin America (20 Countries)”.www.american.edu/justice/spa/jpo
Provided by attorneys within these two offices
Dates back to 1999 Constitution
IV.
ELIGIBILITY FOR LEGAL AID SERVICES: TYPES OF OFFENSES AND INDIVIDUAL QUALIFICATIONS (MEANS,
MERITS, ETC.)
The following is a table summarizing the eligibility requirements for legal aid in the countries included in Table 2 for which information is readily available (Table 3).
The information provided in Table 3 includes the areas
of law covered, the criteria for individual eligibility, any
special attributes of the given country’s legal aid eligibility and the source of information. The individual eligibility criteria given here are for a single person without
children who is not a member of any protected categories (e.g. many countries guarantee free or heavily subsidized legal aid to the disabled).
International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward. Sam Morales
Flores. Masters Candidate, American University. May 7, 2014.
8
TABLE 3. ELIGIBILITY REQUIREMENTS FOR LEGAL AID BY COUNTRY*
Country
Offenses
Individual Eligibility
(Generic)*
Means and merits testing
(different numbers based on
state/territory)
Australia
Criminal, civil, and
family
Bangladesh
Brazil
Criminal, civil,
family, and other
Criminal and civil
Annual income less than or
equal to 50,000 taka
Means testing (different
numbers based on state)
Canada
Criminal and civil
Means and merits testing
(different numbers based on
province/territory)
Chile
Criminal and civil
China
Criminal and civil
Annual income below
$90,000 (urban areas) or
$45,000 (rural areas)
Means and merits testing
England and
Wales
Civil
Criminal
Finland
Criminal
Civil
Means and merits testing
Means testing, managed
through barrister/solicitor
Public defender provided regardless of means
Available means less than or
equal to 1300 Euros
Available financial resources
less than or equal to 269,620
HK dollars AND merits test
Annual income less than or
equal to 100,000 rupees
(persons in custody are eligible for legal aid regardless of
income)
Only available to those facing
the death penalty or fifteen
or more years in prison
Hong Kong
Criminal and civil
India
Criminal and civil
Indonesia
Criminal
Ireland
Criminal
Means testing
Civil
Means and merits testing
Criminal
Means testing for detainees
facing bail hearings and "defendants charged with crimes
carrying a maximum prison
term of five years or more"
Means and merits testing
Means testing
Means and merits testing
Israel
Latvia
Civil
Criminal
Civil and administrative (immigration & asylum only)
Comments
Sources
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Australia_National_Report.pdf
http://www.nlaso.gov.bd/index.php/faq
Means testing is generally lenient and sometimes does not have a
formal cutoff in some
states
Means testing is generally more stringent in relative terms than that of
other countries
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Helsinki_2011/national_reports/Brazil_National_Report_ILAG_2011.pdf
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Canada_National_Report.pdf
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/China_National_Report.pdf
https://www.gov.uk/legal-aid
http://www.oikeus.fi/oikeusapu/en/index.html
http://www.lad.gov.hk/eng/las/fe.html
http://nalsa.gov.in/legalservices.html
Legal aid is only available
in sixteen of the country's
thirty-four provinces
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Indonesia_National_Report. pdf
http://www.justice.ie/en/JELR/Pages/Free_Legal_Aid_in_Criminal_Cases
http://www.legalaidboard.ie/LAB/Publishing.nsf/Content/Home
Kenneth Mann and David Weiner. 2003. “Creating a Public Defender System in the Shadow of
the Israeli-Palestinian Conflict.” New York Law
School Law Review 48: 91-871.
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Latvia_National_Report.pdf
International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward. Sam Morales
Flores. Masters Candidate, American University. May 7, 2014.
9
TABLE 3. ELIGIBILITY REQUIREMENTS FOR LEGAL AID BY COUNTRY*
Country
Offenses
New Zealand
Criminal and civil
Northern Ireland
Criminal and civil
Pakistan
Criminal (capital
only)
Scotland
Criminal
South Africa
Civil
Criminal and civil
Taiwan
Criminal and civil
United States
Criminal
Civil
Individual Eligibility
(Generic)*
Income and assets testing
along with merits testing
Means and merits testing
Comments
Sources
http://www.justice.govt.nz/services/legalhelp/legal-aid
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Northern_Ireland_National_Report.pdf
http://supremecourt.gov.pk/web/page.asp?id=1603
Legal aid only guaranteed to
be available to those appealing a death sentence
Means testing, managed
through barrister/solicitor
Means and merits testing
Monthly income less than or
equal to 5,500 rand after tax
AND an assets test (variable
based on home ownership)
Disposable monthly income
and assets tests (different
numbers based on area of
the country)
Varies among states; generally requires income to be
commensurate with federal
poverty guidelines
No government required eligibility; varies by local jurisdiction in terms of eligibility
and services available
http://www.slab.org.uk/public/criminal/eligibility/
http://www.slab.org.uk/public/civil/eligibility/
http://www.legal-aid.co.za/?p=956
http://www.laf.org.tw/en/a2_2_2.php
See individual state websites
History of Civil Legal Aid. National Legal Aid and
Defender Association.
http://www.nlada.org/About/About_HistoryCivil
*These criteria apply to an individual. Family and dependent eligibility may be calculated differently. Certain groups, such as children
or the disabled, may have different eligibility requirements.
V.
MORE DETAILED DESCRIPTION OF THE LEGAL AID
SYSTEMS OF A CROSS SECTION OF COUNTRIES
The following is a discussion of a number of the cases
documented in the tables above, with some further information and qualitative treatment. Not every case is
included in the interest of page length and due to the
limitations of available information. Like the rest of the
data provided in this paper, the cases are presented alphabetically. This section is partly intended to present
additional information but is also aimed at readers who
may prefer a discussion of cases rather than data provided in tables. The sources for each country are the
same as those presented in Table 2.
AFGHANISTAN
Despite uneven state penetration across the country,
some parts of Afghanistan possess functioning legal aid
systems. Many of these local systems focus on providing
women with legal defense in the Afghan criminal law
system. Existing means of indigent defense are focused
in private nonprofits rather than in the hands of the Kabul government. The largest legal aid organization in the
country is the Legal Aid Organization of Afghanistan
(LAOA), with offices in 25 of Afghanistan's 34 provinces.
The International Legal Foundation-Afghanistan (ILF-Afghanistan) is the self-described "first” and, to date, remains the only nongovernmental organization in Afghanistan providing systematic representation to all indigent Afghans accused of crimes, without regard to ethnicity, gender, age or political affiliation. The Justice for
All Organization, an NGO focused on women's legal issues, provides pro bono legal assistance to (mostly)
women in and around Kabul. Broadly speaking, indigent
defense in Afghanistan is largely a nonprofit NGO undertaking, equal parts legal aid to defendants and outreach
programs to local communities and government agencies.
ARGENTINA
Buenos Aires, the capital of Argentina, is an autonomous
district, and thus has greater responsibility over its legal
International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward. Sam Morales
Flores. Masters Candidate, American University. May 7, 2014.
10
aid services than a typical subnational unit. In many instances, Buenos Aires serves as a laboratory for legal aid
practices that then spread to the rest of the country. For
example, beginning in 2008 the government opened legal aid centers throughout the city that focused not just
on legal assistance but also on the provision of social justice.5 Services provided run the gamut from assistance
with child support cases, to help with filling out immigration paperwork, to provision of dental care. 6 These legal
aid centers were extended throughout the country over
the next several years and helped to reinforce the ideals
of social justice shared by many members of Buenos
Aires’s legal aid community. Horacio Corti, the defensor
general of Buenos Aires, exemplifies the city’s legal aid
community’s concern with social justice. In addition to
these legal aid centers, the University of Buenos Aires,
the largest university in both Argentina and all of Latin
America, “provides free consulting, legal representation,
and mediation to members of the local community who
lack the financial resources to obtain these services.”7
AUSTRALIA
The system of legal assistance in Australia is organized
along the same lines as its governance in general. Each
state and territory maintains separate legal aid offices,
while at the same time national legal aid guidelines take
precedence and there is national funding for legal aid.
The Australian Constitution mandates legal aid for those
who cannot afford it; however, authority is vested in
each of the state and territorial governments as well as
in the Commonwealth government. In the 2011-2012
fiscal year, 144,111 clients were served by the various
state and territorial legal aid agencies. Legal aid as a
whole has been allocated A$1.413 billion for the period
2013-2017, a similar number to the 0.04% of Australia's
GDP that the 2008-2009 fiscal year expenditure represented. Some of the country's special services include
community legal services, Aboriginal and Torres Strait Islander services and Family Violence Prevention legal services. Penetration of remote areas of Australia remains
a challenge to legal aid providers. Another problem with
which the Australian justice system must grapple is the
treatment of asylum seekers. Given their legal status
and circumstances, asylum seekers—especially those
who arrive in the country through “unauthorized channels”—are particularly vulnerable to changes in legal
aid. In March 2014, the government of Prime Minister
5
Marcela Valente, “Taking Justice to the Neighbourhoods in Argentina,” Inter Press Service 17 September 2012. http://www.ipsnews.net/2012/09/taking-justice-to-the-neighbourhoods-in-argentina/
6
Ibid.
Tony Abbott fulfilled a campaign promise to eliminate
taxpayer funded legal aid to such undocumented asylum
seekers, drawing criticism from rights groups.8
BRAZIL
Brazil's legal aid regime was founded in the mid-twentieth century and reflects its federal structure. States and
localities have individual offices fulfilling the government's constitutional obligation to provide legal aid to
indigent defendants. The Office of Public Defenders in
Brasilia exercises loose oversight over these regional
outposts. While there is means testing, in practicality
there are very few hard cutoffs in many states. While
civil legal aid accounts for 73% of relevant cases, criminal
indigent defense was provided to 380,018 clients in
2008. In the same year, the budget for legal aid was
R$1,415,562,000, representing 0.05% of GDP. While the
Brazilian Constitution is among the most progressive in
the world in its guarantee of legal aid at every stage of
the criminal justice system, a United Nations report from
2013 emphasizes how poor the provision of indigent defense actually is in the country. The use of arbitrary detention, in particular, is a serious problem.
CANADA
Canada is somewhat unusual in a comparative perspective because its provision of legal aid is completely handled at the subnational level. It is also more stringent
with regard to its means testing than other countries
(though this is more the case for civil legal aid than criminal). From 2011-12, 487,738 clients had their applications for legal aid approved, while even more received
auxiliary legal services. The system operates on limited
financial resources provided by the provincial governments. Funding nationwide amounted to 776.6 million
CAD in the period from 2011-12, which represented
0.05% of Canada’s GDP. Because of Canada’s multicultural and indigenous heritage, there are many non-litigious forms of legal aid available commensurate to the
alternative forms of justice available to claimants. One
of the major issues with legal aid in Canada has to do
with its sheer size and the low population density across
much of its territory. According to Schaffter 2013, “the
distribution of the population can be a factor in the delivery of services and the methods of delivery used.”
7
The Talloires Network at Tufts University, http://talloiresnetwork.tufts.edu/universidad-de-buenos-aires-argentina/. Retrieved 11
April 2014.
8
Oliver Laughland, “Legal aid denied to asylum seekers who arrive
through unauthorised channels,” The Guardian 30 March 2014
http://www.theguardian.com/world/2014/mar/31/legal-aid-deniedasylum-seekers-arrive-boat
International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward. Sam Morales
Flores. Masters Candidate, American University. May 7, 2014.
11
CHINA
China only relatively recently implemented a legal aid
program, which covers criminal, civil and administrative
law. There are national, provincial, county and municipal
levels of legal aid administration each performing different functions. The system is in the middle of wide-ranging reform, as documented in Hui 2013. In 2008, a separate Legal Aid Department was established within the
national Ministry of Justice. There is a means test for legal aid and an application process for merits testing with
respect to civil cases. In 2012, 1,664,719 clients were
served. Because of the decentralized quality of the Chinese legal aid system, some provinces have set budgets
for legal aid while others are demand-driven. Some
provinces may also require user contributions, though
this is not the case at the national level. There are multiple payers for legal aid services; among them are the
various governments at or above the county level, charitable donations from society and lawyers' contributions. In 2012, funding amounted to 1195.36 million
renminbi, or 0.0023% of GDP, according to official Chinese statistics. While the legal aid system in China is developing, human rights remain a concern with regard to
the justice system, and a completely separate justice
system, shuanggui, exists for party officials.
ENGLAND AND WALES
The legal aid system in England and Wales is centralized
in the national government, and has been undergoing
constant reform for much of the last fifteen years. The
current governing body, the Legal Aid Agency, came into
effect in 2013 as the result of the current government’s
reforms. The agency it replaced, the Legal Services Commission, only dated from 2000. For the most part, legal
assistance is directly provided by private practitioners
who are then reimbursed by the state. In 2009-10, 3 million grants of legal assistance were made, while funding
in the same year amounted to 2.237 billion GBP, or
0.19% of GDP. It should be noted that this is a comparatively very large amount of spending on legal aid, which
may have made it an attractive target for reform. The
British Ministry of Justice estimates that its legal aid system is the most expensive in the world. 9 There are both
means and merits testing for legal aid, and annual costs
are managed by means of a budget cap. The legal aid
budget was cut by 350 million GBP in 2011 as part of the
British government’s austerity policies, but legal aid payments had been decreasing since 1998.10 Some legal aid
practitioners (e.g. Hynes 2013) argue that these cuts
9
Owen Bowcott and Stephen Moss, “Legal aid cuts: six lawyers on
why they will damage our justice system” The Guardian 1 April 2014
http://www.theguardian.com/law/2014/apr/01/legal-aid-six-lawyers-damage-legal-system
make it unlikely that the needs of clients are being met
fully. They document the withdrawal of some legal aid
providers from the available pool for clients across the
country as the cost of offering these services is no longer
commensurate with the compensation provided by the
government. In England especially, these observers believe the legal aid system is in crisis. In recent years, solicitors and barristers across the country have staged
protests against the changes to legal aid. 11
FINLAND
In Finland, state legal aid offices make the initial decision
of whether to grant legal aid. Both public and private
lawyers are available, and it is usually left up to clients
to decide which to utilize. As state legal aid offices govern the provision of assistance across the country, with
appeals possible to the courts rather than a centralized
administrative body if aid is denied, Finland represents
one of the more decentralized national systems of legal
aid. In 2012, 77,000 clients were served nationwide.
There are 29 legal aid offices across the country with 220
public legal aid attorneys. Interestingly, even though the
granting of legal aid is made by regional (state) governments, the funding for the legal aid system comes from
the budget of the national Ministry of Justice. This funding amounted to 63.2 million Euros in 2012, 81% of
which went to criminal legal aid. While there is a nominal user charge for utilization of the legal aid system, 89
percent of clients using private legal aid paid nothing in
2012.
GERMANY
The German system of legal aid is unusual in that it comprises one of the few widely successful judicare systems
in the world. A large percentage of the population is
signed up for some form of legal expenses insurance
(LEI) which ensures they will receive legal representation
if they need it. State court systems administer legal aid.
LEI exists in tandem with Germany's unusually strong
form of indigent defense, in which the courts will, following established law, assign a lawyer to criminal defendants even against their will, and regardless of their
personal means. At the same time, fees for criminal legal
aid are based on lump sums, and no contractual relationship exists between the attorney and client. According to Kilian 2011, "If a defendant is represented by a
defender assigned by the court and not acquitted, he
has to meet the costs of his defender, regardless of his
personal means." Due to Germany's federal system of
10
11
Ibid.
Ibid.
International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward. Sam Morales
Flores. Masters Candidate, American University. May 7, 2014.
12
government, indigent defense costs are paid for by state
governments. Because of the judicare system creating
distinct insurance markets for legal coverage, there is
very little provision in areas like unemployment, refugee
and immigration law due to the lower payments available there.
goodwill and brotherhood.” Given India’s vast population and the problems of providing access to rural areas
and those in poverty, this may be a practical response to
an otherwise daunting challenge.
HONG KONG
Organized legal aid in Indonesia is a comparatively recent development. The passing of Law No. 16 in 2011
was a watershed, establishing the National Law Development Agency (BPHN) under the auspices of the Ministry of Law and Human Rights. Legal aid is provided in 16
of Indonesia's 34 provinces and involves applicants submitting requests for legal aid to third parties, who then
can receive funding from the government for providing
legal services. The payer is the central government and
in some cases provincial or local government budgets.
While the legal aid system started out solely to assist
criminal defendants—in which case it is only available to
those facing either the death penalty or fifteen years or
more in prison—it has been expanded to also include
civil legal aid. The overarching goal of the Indonesian
system is to confront the larger issue of systemic poverty
in the country by removing the legal disadvantages facing the poor; in this sense Indonesia sees legal aid as part
of a holistic strategy combating a variety of social ills.
Due to the long period of direct British rule, China's Special Administrative Region of Hong Kong developed distinct legal institutions from those of the mainland (or
Taiwan, for that matter). Among those legal institutions
is its unusually expansive system of legal aid. Indeed,
Hong Kong represents one of the premier demanddriven legal aid regimes in the world, with the fairly
loose threshold of "reasonableness" serving as the
standard for unlimited expenditures. The Legal Aid Services Council (LASC), a government agency, oversees the
Legal Aid Department, which directly administers the legal aid system. Public funds are the source of legal aid.
There are both means and merits testing, and a contribution is required of clients if their assessed financial resources exceed 20,000 HKD (though there are numerous
exceptions). In 2012, 10,692 legal aid certificates were
granted, and funding amounted to 546 million HKD, or
0.027% of GDP.
INDIA
The Indian constitution guarantees legal aid to all. However, the Legal Services Authorities Act, which laid the
groundwork for legal aid in the country, was only passed
in 1987; prior to that, legal aid was not handled comprehensively at the national level in practice. This act established the National Legal Services Authority (NALSA), but
enforcement of the act did not occur until 1995. Underneath the National Legal Services Authority, in a pyramidal structure, are state and district level versions of the
same body, which perform the same functions of providing free legal services and organizing lok adalat,, alternative dispute resolution mechanisms that avoid the traditional legal system. NALSA emphasizes a multipronged
and multilevel approach to legal aid in the world’s largest democracy, combining free legal assistance to those
in the court system, sensitivity training for judicial officers, alternative justice processes and a “great deal of
emphasis on legal literacy and legal awareness.” However, NALSA also appears to be fundamentally different
from Western legal aid programs in the extent to which
it deemphasizes the provision of counsel to those who
must appear in court. “NALSA is keen to develop and
promote a culture of conciliation and litigation in the
country,” reads the organization’s official website, “so
that the citizens of this country prefer to resolve their
disputes and differences across the table in a spirit of
INDONESIA
IRELAND
The Irish legal aid system is organized by the national
government and administered by the Legal Aid Board,
an independent government body. Assistance is available for criminal, civil, family and refugee law, with some
restrictions on the areas of civil law covered. There are
both means and merits testing, with a user charge based
on means (though no repayment as far as can be discerned). The payer is the national government and funding amounts to 32.55 million Euros in 2013; this constituted to 0.04% of Ireland's GDP in 2013. Some of the
funding for legal aid comes from contributions and recovered costs. Because of limited public resources, legal
aid in Ireland operates on a system of fixed funding. A
lump sum approved by the Irish government for the entire Ministry of Justice budget must be divided among its
many programs, of which legal aid is only one. Irish legal
aid covers proceedings in the European Court of Justice
and the Refugee Appeals Tribunal as well as those in the
standard criminal and civil courts. Studies suggest that
well over half of Ireland's population is indigent enough
to qualify for legal aid, largely as a result of the global
economic crisis.
LATVIA
2004 marked the inception of Latvia's civil legal aid program (the program as a whole dates back only to the end
International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward. Sam Morales
Flores. Masters Candidate, American University. May 7, 2014.
13
of Soviet control). A national Criminal Procedure Law
governs the administration of legal aid, including criminal, civil and administrative law (the latter of which only
includes asylum and immigration law). The provision of
civil legal assistance in Latvia requires means and merits
testing; criminal cases only require means testing. Legal
aid is paid for by the Latvian national government,
amounting to 898,110 Euros in 2012, representing
0.003% of GDP. Legal aid is available to noncitizens in
immigration and asylum cases. Criminal legal aid is provided to those in custody from the police investigation
stage; victims of crime may also seek criminal legal aid,
which may only be provided by sworn advocates.
THE NETHERLANDS
In the past several years, The Netherlands has been in
the process of reforming its legal aid system. Two of the
more significant changes are the introduction of the
“Roadmap to Justice” website, which walks users
through the legal aid system to determine the type of
assistance they require, if any; and the introduction of
legal aid counters—offices spread throughout the country that serve as the point of first contact between clients and the legal aid system. Legal assistance in The
Netherlands relies at least in part on a referral system of
which the legal aid counters are the figurative base of
the pyramid. The national government pays for services,
but there are user charges that contribute to the sustainability of legal aid as well (there is no user charge associated with criminal cases involving imprisonment. In
2012, legal aid funding amounted to 486 million Euros (a
similar amount constituted 0.07% of Dutch GDP in fiscal
year 2008-9). In 2012 again, 449,693 certificates for legal
aid were granted, while 287,000 individuals were served
at legal aid counters. The governing body for the country
is the Legal Aid Board, formally under the Ministry of Security and Justice.
NEW ZEALAND
The legal aid system in New Zealand has very recently
undergone a major transformation. Following a government review that identified waste and mismanagement
in the administration of legal aid, the Legal Services
Agency was dissolved in 2011 and authority over legal
aid was transferred back to the Ministry of Justice. As
New Zealand is a unitary republic, the national government manages most aspects of the legal aid system. Legal aid is available for criminal, civil, family and Waitangi
Tribunal cases, and user charges and repayment are involved in all but the latter. Because the Waitangi Tribunal exclusively deals with claims against the crown for
violations of Maori rights assured in the Treaty of Waitangi, user charges in that court would be highly controversial. In 2007-8, 73,905 clients were served; funding
for legal aid in 2009-10 amounted to 172 million NZD, or
a considerable 0.07% of GDP. The system is cost-oriented, having become increasingly so following the review in 2009 and the restructuring and downsizing of the
legal aid apparatus in 2011-12.
NORWAY
The first legal aid office in Norway was founded in Oslo
in 1893. While the system of legal assistance is overseen
by the national Ministry of Justice, the Norwegian Civil
Affairs Authority, county governors and the courts all
play a role in oversight (Ronning 2013). Overall, legal aid
in Norway is very decentralized. According to Ronning
2013, "In most criminal cases, the accused will be entitled to assistance from a publicly funded legal aid lawyer," implying that legal aid in criminal cases is actually
not means-tested at all. While the budget for services is
technically unlimited, the actual expenditures are quite
low as a percentage of GDP (713,335,000 kr in 2013, representing only 0.025% of 2012 GDP). Reform of the system is currently underway, with much of the focus on
"first line legal aid service," i.e. consultations. Lawyers
affiliated with the legal aid program in Norway are empowered to make decisions as to whether to grant legal
aid.
PAKISTAN
Despite having a highly developed and institutionalized
judiciary, Pakistan does not possess a publicly-directed
legal aid system. The only guaranteed situation in which
one can receive the assistance of counsel at state expense is in the case of appealing a death sentence. The
website of Pakistan’s Ministry of Law, Justice and Human Rights offers no information on legal aid, while the
website of the Supreme Court of Pakistan recommends
that those who require legal aid “approach legal
firms/lawyers.” It also notes that “Free Legal Aid Committees of Bars” provide these services “in appropriate
cases,” implying that the decision to grant legal aid is at
the discretion of professional organizations or private individuals, with little to no administration by the state.
Fortunately, it should be noted that there appear to be
a large number of private legal aid NGOs operating in the
country, including some directed toward specific issue
areas like women’s rights. A final concern is the layering
of customary and Islamic law with the common law system inherited from the British, especially in the areas of
the country provided with wide autonomy in internal affairs (the so-called “tribal areas”). Any access to legal aid
under these circumstances would be mediated by the
control of local authorities with different prerogatives—
including the administration of local justice—than those
of the central state.
International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward. Sam Morales
Flores. Masters Candidate, American University. May 7, 2014.
14
SOUTH AFRICA
Legal aid in South Africa was established in 1969, under
the apartheid regime. The present Constitution of South
Africa guarantees indigent defense services, while Legal
Aid South Africa, a national agency, administers it. Fulltime attorneys staff legal aid offices around the country,
which are supplemented by legal aid clinics at different
universities. Means and merits testing takes place for at
least some cases (merits mostly for civil cases), using a
"substantial injustice" standard. The global recession
has placed some budgetary pressures on legal aid, and
the most recent budget amounts to 1.36 billion rand.
Like Taiwan, South Africa does not discriminate in its
provision of legal assistance based on country of origin
or residence status. The justice system is accusatorial
with elements of civil, common and indigenous African
law, while institutions established in the apartheid era
encouraged the development of unofficial methods of
legal aid by NGOs and individuals.
TAIWAN
The Legal Aid Foundation (LAF), a centralized provider of
legal services to the indigent in the Republic of China,
was founded in 2004, though the country had had legal
aid services prior to that. While the Legal Aid Foundation
is central, indigent defense in Taiwan takes place
through a public-private partnership overseen by a government regulatory body called the Judicial Yuan. While
there are both means and merits testing under the Legal
Aid Act, if a crime is punishable by 3 years or more of
imprisonment, then the means test is waived (along
with some other conditions). Means testing is differential by region. In 2011, 28,495 legal aid applications were
granted, while a legal aid budget of NT$738,034,591 in
the same year represents a remarkably high 0.16% of
GDP. The Legal Aid Foundation runs various programs
for immigrants, refugees, women and laborers, and
even provides legal aid to non-citizens.
TANZANIA
Legal aid in Tanzania is a notably recent phenomenon,
with legislation to establish a legal aid framework only
dating back to 2012. In that year, a “funding mechanism,” largely underwritten by the Danish government,
was set up to provide financial assistance to legal aid
providers throughout the country, with a parallel government task force created to conduct research into the
best way to allow for “enactment of comprehensive legal aid legislation” (Mwakyusa 2012). However, since
2012 no comprehensive legislation has appeared. A
strong focus by the government has been on the regulation of paralegals as the primary form of legal aid in the
country. For the most part, civil legal aid is more available than criminal legal aid, which remains sparse especially in rural areas. Substantively, this means that at the
present time Tanzania still does not have a comprehensive legal aid system, especially with respect to criminal
law. This makes it exceptional within the context of this
report’s sample. However, it is worth noting that Tanzania is likely not unusual in the African or global context.
The Tanzanian government’s unusual level of transparency may make its lack of legal aid more apparent than
that of similar countries.
VI.
SPENDING ON LEGAL AID: THE SIGNIFICANCE
OF ADEQUATE FUNDING; THE DIFFICULTY IN
COMPARING FUNDING LEVELS, AND THE NEED
FOR CONTEXT; INFORMATION ON THE RELATIVE FUNDING OF A SELECTION OF COUNTRIES
The importance of the amount of money spent on legal
aid to its adequate performance can scarcely be overstated. While sufficient spending on legal aid does not
ensure justice, it is hardly possible for justice to be assured in the absence of at least a minimum baseline of
legal aid funding. However, this baseline varies widely
depending on the national context. A good first cut for
comparing funding for legal aid around the world consists of assessing public spending on legal aid in a country as a percentage of that country’s GDP. In this sense,
spending on GDP ranges from the comparatively high
nearly 0.2% of GDP that—until recently—England and
Wales spent on legal aid, to the near-zero percent
spending of Afghanistan, China, Indonesia and Latvia.
While most countries’ legal systems are funded by the
central government (countries classified as national systems in the above summary of legal aid internationally),
others are funded by individual provinces or by both
concurrently (federal and subnational systems, respectively). As a definitional matter of legal aid programs,
public funds usually make up most to all of the spending
involved. Every country has a form of means testing for
legal aid applicants, while countries with civil legal aid
programs that are well developed tend to have merits
testing for those civil cases. User contributions are a part
of legal aid agreements in most Western countries,
though this tends to be a facet of civil legal aid and is
often based on the reward the client receives through
the judgment. Generally, legal aid in criminal cases is
subject to well-defined income or assets cutoffs and involves no repayment.
The following chart (Figure 1) illustrates the range of
public spending on GDP for many of the countries presented in the summary above. Immediately following is
Table 4, which documents spending figures for these
countries.
International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward. Sam Morales
Flores. Masters Candidate, American University. May 7, 2014.
15
Spending on legal aid/GDP
FIGURE 1. PUBLIC SPENDING ON LEGAL AID AS A PERCENTAGE OF
GROSS DOMESTIC PRODUCT (GDP) FOR THE MOST RECENT YEAR
AVAILABLE
0.20%
0.18%
0.16%
0.14%
0.12%
0.10%
0.08%
0.06%
0.04%
0.02%
0.00%
TABLE 4. SPENDING ON LEGAL AID AS A PERCENTAGE OF GDP FOR THE MOST RECENT YEAR AVAILABLE
Country
Afghanistan
Spending on Legal Aid as a Percentage of GDP
<0.01% (2012)
Australia
0.14% (2012)
Brazil
0.05% (2009)
Canada
0.04% (2012)
China
<0.01% (2012)
England and
Wales
0.19% (2009) (Recent cuts have reduced the legal
aid budget by about 410 million GBP in 2012)
Finland
0.03% (2012)
Hong Kong
0.03% (2012)
Indonesia
<0.01% (2010)
Source
Sarah Han, “Legal Aid in Afghanistan” (2012): http://www.afghanistan-analysts.org/wp-content/uploads/downloads/2013/08/20120417-SHan-Legal_Aid_in_Afghanistan1.pdf
Marjorie Todd, ILAG report on Australia, 2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Australia_National_Report.pdf
National Legal Aid, Finance: http://www.nationallegalaid.org/home/finance/
Cleber Alves, ILAG report on Brazil, 2011: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Helsinki_2011/national_reports/Brazil_National_Report_ILAG_2011.pdf
Jacqueline Schaffter, ILAG report on Canada, 2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Canada_National_Report.pdf
Xia Hui, ILAG report on China, 2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/China_National_Report.pdf
Steve Hynes, ILAG report on England and Wales, 2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/England_and_Wales_National_Report.pdf
Hugh Barrett, ILAG report on England and Wales, 2011: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Helsinki_2011/national_reports/National_Report_-_England_and_Wales.pdf
Merja Muilu, ILAG report on Finland, 2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Finland_National_Report.pdf
Witman Hung Wai-Man, ILAG report on Hong Kong, 2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Hong_Kong_National_Report.pdf
Erna Ratnaningsih, ILAG report on Indonesia, 2011: http://www.ilagnet.org/images/docs/helsinki/National_Report_Indonesia_Erna_Ratnaningsih.pdf
International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward. Sam Morales
Flores. Masters Candidate, American University. May 7, 2014.
16
TABLE 4. SPENDING ON LEGAL AID AS A PERCENTAGE OF GDP FOR THE MOST RECENT YEAR AVAILABLE
Country
Ireland
Spending on Legal Aid as a Percentage of GDP
0.02% (2012)
Japan
0.01% (2012)
Latvia
<0.01% (2012)
The Netherlands
0.08% (2012)
New Zealand
0.07% (2009)
Norway
0.03% (2012)
Scotland
0.11% (2012)
South Africa
0.04% (2012)
Taiwan
0.16% (2011)
VII.
CONCLUSION: CHALLENGES AND OPPORTUNITIES:
AN OPTIMISTIC OUTLOOK FOR THE FUTURE OF
LEGAL AID
This paper has reviewed the legal aid systems of a diverse group of countries, including many of the world’s
largest. It has attempted to not only provide key information about each country, but has also identified several themes that unite legal aid systems across the
globe. The first of those themes, the emergence of international norms covering the treatment of indigent defendants and other forms of criminal and civil legal aid,
is a largely positive development that both reflects the
better treatment of those who enter the justice system
and lays the groundwork for further improvements on
this score. The second, the challenges posed by austerity
to legal aid, is generally a countervailing force. Spending
reductions due to austerity pose a significant problem to
the legal aid system directly, but austerity, as an overarching government program, also affects society in a
Source
Moling Ryan, ILAG report on Ireland, 2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Ireland_National_Report.pdf
Tomoki Ikenaga, ILAG report on Japan, 2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Japan_National_Report.pdf
Agris Batalauskis, ILAG report on Latvia, 2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Latvia_National_Report.pdf
Lia Combrink and Susanne Peters, ILAG report on The Netherlands, 2013:
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/
files/The_Hague_2013/National_Report/Netherlands_-_Brochure_-_Legal_Aid.pdf
Marie Cope, ILAG report on New Zealand, 2009: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/Wellington_2009/National_Reports/New_Zealand_-_Marie_Cope.pdf
“Transforming the Legal Aid System: Final Report and Recommendations,”
2009: http://www.justice.govt.nz/policy/justice-system-improv ements/publications/global-publications/t/transforming-the-legal-aid-system/
Olaf Ronning, ILAG report on Norway, 2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Norway_National_Report_Final.pdf
Scottish Legal Aid Board, ILAG report on Scotland, 2013: http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/Scotland_National_Report.pdf
Vidhu Vedalankar and Brian Nair, ILAG report on South Africa, 2013:
http://www.ilagnet.org/jscripts/tiny_mce/plugins/filemanager/files/The_Hague_2013/National_Report/South_Africa_National_Report.pdf
Legal Aid Foundation ,2012 Annual Report:
http://www.laf.org.tw/en/c3_1.php?PHPSESSID=ehkoji3ldokdp37rp3no65tg64
more fundamental way. Cuts to social welfare programs
due to austerity, along with the economic problems that
normally induce austerity in the first place, simultaneously create social and economic strains on individuals
that produce a need for legal aid (e.g. unemployment,
marital strain) and directly reduce the financial resources available to individuals, qualifying more of the
population for legal aid. In this way, austerity pressures
the legal aid system from several sides, making it a profound challenge.
In the end, however, while austerity is a temporary challenge, the emergence of international consensus on
standards for legal aid provision is a more durable development that will improve the access to legal aid for
countless people. Given the diversity of political and socioeconomic conditions and of legal aid systems among
the countries documented in this paper, the fact that
they are now joined to the same expansive, progressive
norms bodes well for the future of legal aid.
International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward. Sam Morales
Flores. Masters Candidate, American University. May 7, 2014.
17