This module is a resource for lecturers
Topic 4. Access to legal aid for those with specific needs
The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems ( UNPG) (Principle 10 on equity in access to legal aid), provides that special measures should be taken to ensure meaningful access to legal aid for women, children and groups with special needs, including but not limited to, the elderly, minorities, persons with disabilities, persons with mental illnesses, persons living with HIV and other serious contagious diseases, drug users, indigenous people, stateless persons, asylum seekers, foreign citizens, migrants and migrant workers, refugees and internally displaced persons. Such measures should address the specific needs of those groups, including gender-sensitive and age-appropriate measures. This is further developed in: Guideline 11 on nationwide legal aid services, paras 57 and 58; Guideline 9 on implementation of the right of women to access to legal aid; and Principle 11 and Guideline 10 on legal aid in the best interests of the child. Note that Rule 25 of the Bangkok Rules (2010) provides that women prisoners who have been subjected to sexual abuse must be provided, inter alia, with legal aid (See also Module 9 - Gender in the Criminal Justice System).
The requirement that special measures be taken to ensure meaningful access to legal aid for people in particular groups should be considered at a number of levels. At the level of law and regulations, the approach adopted in some countries is for legal aid to be mandatory, and/or to be available without reference to a means or merits test, for people from certain groups identified in Principle 10. In terms of delivery of legal aid, the most effective approach may be for dedicated legal aid services to be available which take into account the special needs of people from the groups concerned, for example, by the provision of legal aid by lawyers and other advisers of a particular gender, or from a particular ethnic group, or the provision of legal aid in particular locations, such as women's prisons. Those providing legal aid services to people from such groups may require special training so that they can communicate effectively and can recognize special needs.
Whilst the specific needs of people in all the groups identified above are important, this topic concentrates on the specific rights and needs of women and children.
Specific rights of children
In respect of children, the United Nations Convention on the Rights of the Child provides that every child alleged or accused of having infringed penal law has the right to have legal or other appropriate assistance in the preparation and presentation of their defence and to have the matter determined in the presence of legal or other appropriate assistance (article 40); and that every child deprived of their liberty has the right to prompt access to legal or other appropriate assistance (article 37). There are several provisions in the UNPG that offer guidance on child-friendly legal aid, specifically: Principle 3 (22), Principle 10 (32), Principle 11 and Principle 13 (37), as well as Guidelines 1, 2, 3, 6, 10, and 11.
Despite this, children face many difficulties in relation to criminal justice systems. Children, many of whom are living in poverty, are often the victims of violence, including from criminal justice officials. Children in contact with the criminal justice system are often dealt with as if they were adults, yet they may have difficulty in communicating and asserting their rights and needs. Globally, many thousands of children are held in detention without access to a lawyer. The in-class case study involving the 14-year-old girl, Sami, illustrates some of the particular challenges faced by children in relation to criminal justice systems. For further materials on justice for children see Module 13 in this series.
In some countries, legal aid for children is mandatory. In Ukraine, children have the right to free secondary legal aid under certain conditions, including when they are orphaned, victims of family violence, or at risk of such violence (Ukraine, Law on Free Legal Aid, 2011, article 14 (1)(2)). In India, women and children are among those that are to be provided with legal services if they need to file or defend a case (Legal Services Authorities Act, 1987, Section 12 (c)). In the European Union, the EU Directive on procedural safeguards for children requires Member States to guarantee that children who are suspects or accused persons in criminal proceedings shall be assisted by a lawyer from the moment that they are questioned by the police and throughout the proceedings, and that national law in relation to legal aid guarantees the effective exercise of that right (2016/800/EU, articles 6 and 18). The Directive also requires that the staff of law enforcement authorities and detention facilities, and judges and prosecutors, who deal with cases involving children receive appropriate training (2016/800/EU, article 20). The Global Study on Legal Aid found that only 31 per cent of national experts said that their country has made it mandatory for legal aid providers to undergo specialized training when representing children (2016, p. 117).
Specific rights of women
Women in many countries face structural and cultural barriers to accessing legal aid, having inadequate knowledge of their rights, lacking the resources to find out what their rights are, and facing significant obstacles in exercising them. Those who are victims of domestic violence are sometimes treated as suspects or accused in criminal proceedings, and those who have been subjected to trafficking in human beings may be arrested or detained on suspicion of having committed a crime. In many countries, women who have been arrested or detained are at risk of sexual and other forms of violence from State officials. For further materials on violence against women, and the challenges faced by women in the criminal justice system, see Modules 9 and 10 in this university module series. Additionally, Module 11 provides materials on justice for victims.
The Global Study on Legal Aid identified some of the problems that women have in accessing legal aid:
When asked about the most significant obstacles faced by women in accessing legal aid, national experts identify a wide range of issues, some of which are more prominent in certain regions than others. Amongst structural obstacles, a large proportion of experts from Eastern Europe & Central Asia (63 per cent) and from the WEOG [Western Europe and Others Group] (50 per cent) note that the lack of specialized legal aid services for women is a major hindrance. Amongst issues arising from women's lack of awareness about legal aid services, 82 per cent of experts in Asia Pacific observe that women may not be aware that legal aid services are available at little or no cost, while 80 per cent of experts in the Middle East & North Africa region assert that women often do not know where to find legal assistance. Finally, amongst cultural and gender-specific obstacles, close to three quarters (73 per cent) of experts in Asia-Pacific and 55 per cent in Latin American & the Caribbean stress that it is difficult for women to confide in and share intimate information related to a case with legal aid providers, who are predominantly male. (2016, p. 78)
In addition to the provisions of the UNPG, Rule 2 of the Bangkok Rules states that adequate attention must be paid to the procedure for admitting women to custody, and that newly arrived women prisoners should, among other things, be provide with facilities to contact their relatives and access to legal advice. UNODC and other organizations have produced useful materials on the particular problems faced by women (alleged) offenders and prisoners, and the mechanisms that may be employed to alleviate them:
- UNODC, UN Women, UNDP and OHCHR (2018). A Practitioner's Toolkit on Women's Access to Justice Programming New York, Vienna and Geneva: UNODC, UN Women, UNDP and OHCHR, Module 4;
- UNODC (2015). Training Curriculum on Women and Imprisonment. New York: UNODC;
- UNODC (2015). Information note for criminal justice practitioners on non-custodial measures for women offenders . Vienna: UNODC;
- UNODC (2014). Handbook on Women and Imprisonment . Vienna: UNODC;
- Penal Reform International and Association for the Prevention of Torture (2015). Women in detention: a guide to gender-sensitive monitoring . London: APT.