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)
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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
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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
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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
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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
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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
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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
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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
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Decision of U.S. Supreme Court in
Miranda v. Arizona (1966);
Decision of the European Court of
Human Rights in Salduz v. Turkey
(2008)
The end
The end