Human Rights, legal aid and effective access to justice

1
Human Rights, legal aid and effective access to
justice
Westminster University January 2008

• Roger Smith
• Director
• JUSTICE, UK

2
Overview

• Legal aid and human rights obligations
• Role of the European Union in human rights (and
  legal aid)
• Non-human rights reasons for legal aid schemes
• Conclusions about role of human rights in legal
  aid and generally

3
Human rights

• Article 14(3)(d) International Covenant on Civil
  and Political Rights
• Article 7 African Charter on Human Peoples
  Rights
• Article 8 American Convention on Human Rights
• Article 6 European Convention on Human Rights
• Article 47 European Charter of Fundamental
  Rights and Freedoms

4
Article 6 ECHR

• In the determination of his civil rights and
  obligations, everyone is entitled to a fair and
  public hearing Article 6(1)
• Everyone charged with a criminal offence has the
  following minimum rights
• (c) To defend himself in person or through legal
  assistance or , if he has not sufficient means
  to pay for legal assistance, to be given it free
  when the interests of justice so require

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European Court of Human Rights

• Autonomous definition of criminal offence
• Benham v UK (1996) 22 EHRR 293 (imprisonment for
  non-payment of cc)
• Civil rights and obligations determination
  of private right and administrative determination
  with direct effect on private right eg right to
  run medical clinic Konigh v Germany (1979-80) 2
  EHRR 170
• Equality of arms

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Effective participation

• Right is to effective participation
• Granger v UK 91990 12 EHRR 469
• Steel and Morris v UK (EctHR 15 Feb 2005)
• Practical and effective not theoretic and
  illusory
• Airey v Ireland (1980) 2 EHRR 305
• No undue delay
• Irish case ODonoghue v Legal Aid Board and
  others (2004) IEHC 413

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Interests of justice

• Includes
• Complexity of case
• Seriousness of offence
• Ability of defendant to participate
• (Quaranta v. Switzerland, Application Number
  12744/87, Judgment of 24 May 1991)
• Para 5, Schedule 3 Access to Justice Act 1999
  also includes whether in interests of another
  person

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Article 47 EU Charter of Fundamental Rights

• Legal aid shall be made available to those who
  lack sufficient resources insofar as such aid is
  necessary to ensure effective access to justice

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Human Rights and Legal aid contradictions

• An economic right embedded in a civil right
• Supported by most comprehensive human rights
  treaties
• Inspired recent reform in central/eastern Europe
  but EU needed for enforcement
• But, EUs HR role now under attack, particularly
  from UK
• And, historically, legal aid developed for wide
  range of reasons

10
Europe, human rights and legal aid

• EU and human rights - Treaty of Amsterdam, EU
  charter of fundamental rights and freedoms,
  Treaty of Lisbon
• The states of central and eastern Europe eg
  Lithuania, Bulgaria
• Accession and the monitoring process
  Copenhagen criteria, country reports
• The sad story of procedural safeguards
• Retreat, ambiguity or triumph?

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Six other reasons for legal aid

• 1.Charitable, voluntary, professional obligation
  eg Legal Aid Society of New York, pro bono
• 2. Anti-poverty, social inclusion eg MoJ
• 3. Rule of law eg World Bank, FCO
• 4. Self-interest of providers eg E and W
• 5. Empowerment or constitutional inclusion eg
  community/neighbourhood clinic/law centre
  movement
• 6. Efficiency eg Poor Prisoners Defence Act 1903
  (following 1898)

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Conclusions

• Human rights inspire change
• Human rights may need enforcement by agencies
  such as the European Union as well as those like
  Council of Europe
• Commitment to human rights of institutions like
  EU is crucial
• Rights like those to legal aid may be developed
  outside context of human rights