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Justice Initiatives: Legal Aid Reform and Access to Justice

Author: Open Society Justice Initiative
Date: 2004
Size: 60 pages (337 KB)

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Summary

The right to legal aid in criminal cases is enshrined in many human rights treaties and in most national constitutions and it is considered the test of governments’ commitment to the rule of law. Yet few countries apply it fully and consistently. Can indigent defendants rely on efficient and independent systems of legal representation?

This study from the Open Society Justice Initiative explores this issue drawing on examples from several countries, particularly Lithuania, which is on the point of adopting a new legal system, but also Bulgaria, Chile, East Timor, Israel, South Africa and the UK. In recent years, some of these countries have undertaken important reforms of their criminal defence systems, while others still need to change the way legal aid is provided.

An overview of reforms undertaken shows that important changes have been introduced where legal aid to indigent people was almost non-existent or inefficient.

• Lithuania has reformed a justice system it inherited from the Soviet period, where the state dominated the criminal process. It is introducing new measures, including a network of public defender offices and a centralised institution for legal aid management.
• Legal aid provision in Bulgaria is among the worst in the region, still based on ex-officio lawyers appointed by courts or investigative bodies. However, a pilot project by the Open Society Justice Initiative is underway.
• Chile has adopted the most extensive reform in Latin America including a public defence with full time public defenders, a programme of mandatory apprenticeship for graduates and a system of clinical legal education in poor communities.
• The creation of the Public Defender Office in East Timor, the first institution of its kind in Southeast Asia, has been part of a wider reform to bring the judicial power under civil authority after years of violent conflict.
• Although the right to legal representation is not enshrined in Israel’s constitution, the country has managed to create an extensive legal aid system made up of a Public Defender Office and a Civil Legal Aid Office.
• Justice is inaccessible to most people in Sierra Leone, so a non-governmental project was introduced that aims to train individuals who can serve as legal advice officers in rural communities.

Although legal concepts cannot be transplanted from one legal system to another and it is always necessary to make changes to suit local conditions, some countries can provide useful lessons to others for reforming their criminal defence systems.

• Lithuanian reforms can be a guide to other countries previously belonging to the Soviet Union or Eastern European countries where the costly and inefficient ex-officio system is still in place.
• The efficient and cost-effective South African defence system can provide a model for transition democracies with budget constraints, especially for the Central Asian countries who have large rural populations.
• The expensive system in place in the UK can provide a positive model of quality assurance based on accreditation of lawyers, auditing and clearly defined requirements for legal service providers.

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Source: Open Society Justice Initiative, 2004, 'Justice Initiatives: Legal Aid Reform and Access to Justice', February 2004 Issue, Open Society Justice Initiative, New York.
Author: Open Society Justice Initiative, http://www.justiceinitiative.org/