2.3.2 Legal obligations on states to provide legal aid
arising from international law
Having generally discussed the meaning of legal aid, its link
to the broader term of access to justice and the application of international
law in Rwanda,61 the research will now examine the legal basis and
scope of the right to legal aid in international law.
As noted earlier the terms access to justice or legal aid are
not used as such in most international human rights instruments. Given the
terminological variance, it is not always clear whether reference is made to
the right to bring a claim before a competent court, or rather to the right to
have a measure or remedy provided in connection with the injury suffered by the
claimant. The latter goes further than the mere right of access to justice and
implies the right to obtain reparation as a consequence of certain harm
suffered in connection with the violation of a right or legally protected
interest.62 In this connection, this Chapter examines in some detail
international standards flowing from various international legal instruments.
It focuses largely on the ICCPR and other international instruments which
guarantee individual?s right to access to justice through state-funded legal
aid.
59 Erga omnes is frequently used in legal
terminology describing obligations or rights toward all. An erga omnes
obligation exists because of the universal and undeniable interest in the
perpetuation of critical rights (and the prevention of their breach). See
details in Belgium v. Spain (well-known as Barcelona Traction,
Light and Power Co Case), Judgment of 5 February 1970, ICJ Reports 1970,
3.
60 See Ibid.
61 See Article 190 of the Constitution of Rwanda.
62 Francioni, supra note 3, 25.
2.3.2.1 The ICCPR's provisions on legal aid
The ICCPR is the main international instrument which protects
the civil and political rights of every one. This treaty, as it will be shown
below, sets out the precise obligations on states to provide free legal aid. It
is worth noting that the Covenant commits each state party to respecting and
ensuring to all individuals within the territory and subject to its
jurisdiction the rights recognised in the present Covenant.63
Chiefly, Article 14.3(d) of the ICCPR requires states to make
available, without cost, legal representation where a criminal
defendant has insufficient means to pay and the interests of justice require
legal representation. It reads as follows:
In the determination of any criminal charge against him,
everyone shall be entitled to the following minimum guarantees, in full
equality: (d) 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 interests of justice so require, and without payment
by him in any case if he does not have sufficient means to pay for
it.64
An analytical look at this provision shows that legal
representation is set out among the minimum guarantees to which everyone is
entitled, in full equality, in the determination of any criminal charge.
However, there are limitations on the availability of legal aid as provided for
under this Article. States are required to provide legal aid only where the
interests of justice so require and if the beneficiary does not have sufficient
means to pay for it. The other limitation to the right to counsel when it is
provided by the state is that there is no scope for choice of counsel by the
individual. However, in Antonio Viana Acosta v. Uruguay, the Human
Rights Committee (HRC) which is the treaty monitoring body established by the
ICCPR,65 held that although free choice of lawyer may be subject
63 ICCPR, Article 2.
64 Ibid. Article 14.3(d).
65 Optional Protocol to the ICCPR, GA Res 2200A (XXI), 21 UN
GAOR Supp No 16 at 59, UN Doc A/6316 (1966), 999 UNTS 302, entered into
force March 23, 1976. It is useful to note that the Human rights Committee
is entitled to hear individual petitions that challenge a state?s compliance
under the provisions of the ICCPR. The decisions rendered by the Committee,
while not binding upon state parties to the Optional Protocol, are
considered to have persuasive force.
to certain limitations when free legal assistance is granted by
the state, the wishes of the accused have to be taken into
account.66
Also, in Reid v. Jamaica and OF v. Norway,
the HRC provided the scope to certain elements of Article 14(3) of the
ICCPR 67. In elaborating on the meaning of when the «interests
of justice» would require free legal representation, the Committee
considered, in OF v. Norway case, the severity of the charge and the
complexity of the case in making the determination.68 As a result,
in a case where the accused is charged with a minor criminal offence which
would have likely resulted in a fine, the Committee found that the state is not
required to provide free legal assistance.69
It is worth noting that the ICCPR does not specifically
address the question of how legal aid must be provided. However, the HRC has
also stated that counsel should receive adequate remuneration for providing
legal assistance under a state-funded legal aid plan.70 Similarly,
it has affirmed that legal assistance must be assigned to the accused if he
does not have the means to pay for it as provided for under the
ICCPR,71 and that legal assistance must be effective.72
Again, the HRC has held that accused persons have a right to legal advice prior
to trial requiring the state to appoint legal counsel during the pre-trial
period.73
It is pertinent to note that under the ICCPR the right to
legal aid is only specified in the context of the criminal justice system.
However, owing to the fact that the ICCPR asserts the right to have legal
assistance in any case where the interests of justice so
require,74 it is argued that the state is required to
assign? legal representation even for civil matters in cases of
indigence. Moreover, in all in all decisions regarding legal aid, a state is
66 Antonio Viana Acosta v. Uruguay, Communication No
110/1981 (29 March 1984), UN Doc CCPR/C/OP/2 at 148 (1990).
67 See Reid v. Jamaica, Communication No
250/1987 (20 July 1990) and OF v. Norway, Communication
No 158/1983 (26 October 1984)
68 Ibid.
69 Ibid.
70 See Reid v. Jamaica, supra note 67.
71 See Wright and Harvey v. Jamaica,
Communication No 459/1991, 27 October 1995.
72 See Reid v. Jamaica, supra note 67.
73 OF v. Norway, supra note 67.
74 ICCPR, Article 14.3(d)
expected to take into account the competence of counsel and the
complexity of the matter.
As regards civil legal aid, some tangential support may be
gained from the jurisprudence of the European Human Rights Court (ECHR) which
has contributed a lot on this matter. The ECRH in Airey v. Ireland
held that legal aid in civil cases should be considered as an aspect of a fair
trial.75 In that case, the ECHR held that the right of access to the
courts guaranteed by a number of international instruments oblige the state in
certain circumstances to provide impecunious litigants with the assistance of a
lawyer in civil matters.
In short, the standards set out in the ICCPR oblige states
parties to make justice accessible to all indigent people through legal aid.
However, the decision to grant legal aid in a given case must be based on the
merits of the case in line with the objects and purposes of the ICCPR. Whereas
the ICCPR is not explicit on the provision of legal aid in civil matters, this
treaty can be nevertheless interpreted to require that in any case where the
interests of justice so require, the state should provide legal aid in such
cases.
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