On May 30, Ms. Gabriela Knaul, the UN Special Rapporteur on the independence of judges and lawyers, presented her report on the right to legal aid to the UN Human Rights Council.
Legal Aid as a Human Right
In framing the report, the Rapporteur stresses that “[l]egal aid is an essential component of a fair and efficient justice system that is founded on the rule of law,” and also “a right in itself.” The right to free legal aid appears numerous times across international and regional human rights instruments, including article 14(3)(d) of the International Covenant on Civil and Political Rights, article 18(3)(d) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, articles 37 and 40 of the Convention of the Rights of the Child, article 6 of the European Convention on Human Rights, and article 8 of the American Convention on Human Rights.
Recommendations of the Special Rapporteur
Although none of the conventions precisely define the scope of “legal aid,” the Rapporteur argues that it should be defined broadly to include a range of educational, outreach, and direct services that allow individuals to make informed decisions. And though the Rapporteur draws on the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, she notes that the right to legal aid must not be limited to the criminal justice system, but rather should extend to those claiming violations of community or minorities’ rights, survivors of torture, and migrant workers combating exploitation.
The Rapporteur explains that legal aid should be made available whenever two conditions are met: the beneficiary does not have “sufficient means” to cover legal services and “where the interests of justice so require.” When legal aid is provided, it must be effective and continuously provided throughout the legal process.
The Obligation of States to Provide Legal Aid
States may follow different models when establishing their legal aid systems; they may be entirely State run, or a State/public partnership. Whatever the system, the Rapporteur identifies certain criteria that must be satisfied. Critically, States must provide legal aid to all persons residing in the state, regardless of their citizenship or immigration status. Further, the right to legal aid must be enshrined in domestic legislation, ideally “at the highest possible level, possibly in the constitution.” This legislation should address the specific criteria with respect to the financial criteria for eligibility and the types of services that legal aid can include. Those denied legal aid should also have a right to appeal that denial.
The Rapporteur stresses that States must take special care to ensure that children, the elderly, persons with disabilities, and others who risk marginalization be included in the legal aid framework.
How Human Rights Advocates Can Use this Report
Persons working with immigrant communities may find it helpful to reference this report by the Special Rapporteur when advocating for the rights of persons without lawful immigration status, particularly outside of the criminal justice system where provision of legal aid is less formalized. Advocates providing legal services – whether through “Know Your Rights” workshops for detained immigrants or through education materials on filing complaints against exploitative employers – can also draw on the report to further justify the importance of their work when seeking government funding and private donations.
Moreover, whereas some governments may oppose international partnerships or funding that strengthens national civil society organizations as unwanted “interference,” the Rapporteur specifically highlights that “[i]nternational non-governmental organizations can also contribute to the funding of legal aid schemes by offering technical support and exchanging information on best practices on how to implement, develop and maintain legal aid programmes.”