The UN Commission on Crime Prevention and Criminal Justice has just adopted at a meeting in Vienna a ground-breaking resolution on "access to legal aid in criminal justice systems". The resolution adopts a set of "Principles and Guidelines" designed to ensure that access to legal information, advice and assistance is available to all through the provision of legal aid—thus realizing rights for the poor and marginalized and entrenching one of the key building blocks of a fair, humane and efficient criminal justice system.

This is the first international instrument on legal aid. It brings us a step closer to ensuring universal access to human rights—rights that remain illusory if they are only accessible to those with financial means.

The genesis of this resolution was the 2004 Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa. In 2007 ECOSOC called on the United Nations Office on Drugs and Crime to develop a global instrument. Since 2009 groups of experts, from all continents, including the Open Society Justice Initiative, have gathered several times in Vienna to draw together best practices and develop a draft that was reviewed by the Member States in 2011. The result is a practical document that traces the criminal justice system from the pretrial to post-trial stage and highlights a number of important components:

• Prompt access to legal aid at all stages of the criminal justice process.
• The involvement of a diversity of legal aid providers including lawyers, university legal clinicians and paralegals.
• The development of a nationwide legal aid system that is sufficiently staffed and resourced.

It is aimed to help states design and implement innovative, comprehensive and sustainable systems.

The resolution was sponsored by Cameroon, Canada, Croatia, Chile, Denmark (for the European Union), Georgia, Germany, Israel, Mexico, Namibia, Nigeria, Norway, the Philippines, Saudi Arabia, South Africa (for the African Group) and the United States of America and the negotiations spearheaded by Georgia and South Africa—highlighting their steadfast commitment to legal aid, both through their national systems and through efforts, such as this, to exchange and improve standards at the international level.

According to Justice Dunstan Mlambo, chairman of Legal Aid South Africa, the way in which a country treats those who come into contact with the criminal justice system is a hallmark of its commitment to human rights. Thus legal aid is not something that is nice to have; it is a must that has to be there. The adoption of the principles and guidelines is a significant and important step forward and a strong catalyst in promoting global commitment to legal aid.

This is an exciting moment—but of course intensive work now begins. If we take a quick snapshot of the reality on the ground hundreds of millions of people currently go without access to legal assistance, they are detained for months or even years without being informed of their rights and without appearing before a court.

In many countries there are literally one to two hundred lawyers for populations of over ten million people, and there are blockages both to training additional lawyers and to ensuring support and backup from qualified paralegals. Legal aid is not only important as a human right and as the foundation of a fair trial. Effective legal aid schemes produce significant positive outcomes both for individuals and for the wider society by improving the performance of criminal justice personnel. They lead to more rational and effective decision-making, and increase accountability and respect for the rule of law.

It is critical now for states to take steps to improve their systems, remove blockages, and adopt practical country-wide strategies. UN agencies and civil society organizations need to provide flexible support, help document best practices and monitor developments. And development funders need to work with governments to support long-term strategies.

Dupe Atoki, the African Commission’s Special Rapporteur on Prisons and Conditions of Detention, attended the event in Singapore and highlighted the challenges faced in Africa. She identified the length of time that people spend in pretrial detention as one of the most serious challenges facing correctional services in Africa, drawing attention to the numerous instances where she had found remand prisoners waiting for up to five to ten years for a court appearance.

"Facilities are overstretched and overcrowding is widespread, leading in turn, to poor sanitary conditions," she told the conference. "Detainees also experience emotional trauma, in part, due to the uncertainty of their detention as they don’t know if or when they will be released. This also poses a management problem for the prison service as they are unable to plan for rehabilitation and reintegration".

Two of our partners are involved in efforts to reduce excessive pretrial detention: Robert Omita Okoth, the Assistant Commissioner for Welfare and Rehabilitation at the Uganda Prison Service, and Elinor Chemonges, of the Paralegal Advisory Service in Uganda. They both talked to me in Singapore about the challenges they are trying to overcome.  

Robert Omita Okoth: As correctional services we are the end of the criminal justice pipeline and thus feel the reverberations of decisions made upstream. I am, however, convinced that as correctional professionals we need to take a proactive role and engage with programs and policies that relate to the early part of the criminal justice system. In Uganda 54 per cent of the prison population remain in pretrial detention, and this impacts the prison service, both directly through costs related to operations and administration, and indirectly due to overcrowding or the inability to effectively run rehabilitation and reintegration programs.

The costs of accommodating huge numbers of pretrial detainees cannot be ignored and the large numbers also impact negatively on the ration of staff to inmates. Pretrial detainees generally experience greater stress which also puts an additional strain on prison staff. The precarious and often arbitrary nature of their detention increases the risk of resentment and violence.

The impacts of a large remand population on overcrowding cannot be ignored. Congestion levels are at 200 per cent, which means that prisons are holding two detainees per 3.6 square meters. Such levels of overcrowding result in unsanitary conditions, increased violence, a constant lack of privacy and reduced possibilities for recreational activities. Thus prison staff are forced to focus on the absolute necessities and are unable to devote much needed to rehabilitation programs which have been proven to significantly reduce recidivism.  

The percentage of detainees awaiting trial in Uganda has decreased over the last years from 64 per cent in 2005 to 53 per cent in 2011 – what in your view are some of the major initiatives that have brought about this change?

Two initiatives stand out in this regard: the Chain Linked Initiative, and the work of the Paralegal Advisory Service. Bringing all the different justice and security agencies together [in the Chain Linked Initiative] on a regular basis has improved coordination and allowed agencies to address bottlenecks in the system.

At a more specific level the Paralegal Advisory Service (PAS) has had a huge impact especially through programs that provide basic legal assistance and seek to secure access to bail for eligible suspects. The partnership between the PAS and the Uganda Prison Service was established in 2005 and bought together paralegals and prison social workers thus also providing a link between rehabilitation programs in prison and reintegration in the community. The period of the project coincides with a reduction in the percentage of pretrial detainees but unfortunately to date the program is not yet available in all parts of the country.  

Elinor, you run the Paralegal Advisory Service in Uganda – what do you see as the unique features of this program and some of the opportunities and challenges ahead?

Elinor Chemonges:  The unique feature of the Paralegal Advisory Services is the partnership between civil society and government with a common commitment to assist suspects at the very start of the justice system. The program empowers pretrial detainees to seek justice by furnishing them with information on their rights and on the procedures and workings of the justice system. Detainees are supported by paralegals and social workers who follow up on cases to ensure that they don’t stagnate throughout the trial process. The paralegals also provide essential legal advice and help to trace family members and potential sureties.  

Over the years there has been a significant increase in the number successful applications initiated by the PAS program. For example, the number of successful bail applications has increased from 784 in 2005 to 4177 in 2010. In addition specially trained mediators have ensured that relevant cases are diverted away from the criminal justice system.

As we move ahead we are transitioning towards the prison service taking up increased responsibility and budgetary allocation for the program and we are also looking to ways to increase the coverage.

How do both of you see the ICPA conference in relation to your work?

Elinor:  Most correctional facilities grapple with similar issues such as overcrowding, recidivism and limited engagement of communities. On the other hand, there are innovations and interventions developed in different jurisdictions which could be shared and replicated in many places without reinventing the wheel. There is therefore a need to take advantage of such fora like the ICPA as a ‘fishing pond’ for solutions to existing challenges.

Robert: ICPA brings together correctional professionals from over 70 countries - it is therefore a vital forum for sharing experiences and best practices. Gradually there has been increased participation from the Africa region which is also important as we plan for the Africa Correctional Services Association (ACSA) meeting which will be held in Kampala in 2012. Very few presentations specifically pay attention to the decisions made at the point of arrest and the consequent repercussions for correctional services – thus I would be keen to see further attention to pretrial justice issues both through national interventions and through the work of ICPA and other international fora.

Pretrial Detention and Torture: Why Pretrial Detainees Are Most at Risk is part of a broader effort to demonstrate how this single issue of excessive detention lies at the heart of a web of misfortune and abuse that disproportionally affects the poor and the excluded, and which corrodes faith  in the rule of law and justice.

Released as the world marked the UN International Day of Support for the Victims of Torture (June 26), the report reminds us that torture and other ill-treatment of prisoners are not aberrations; they are common—even routine—in many detention facilities around the world. And while it is often assumed that torture victims are likely to be political prisoners or even suspected terrorists, most victims are ordinary people accused of ordinary crimes.

It details cases like Halima David, a 38-year old Nigerian woman who spent six years in pretrial detention in Nigeria. She was beaten, forced to swallow tear gas and, pregnant at the time of her arrest, lost her baby while in detention. She couldn’t afford to pay for a lawyer, had no contact with her husband and seven children, and later found out that her husband died while she was in detention.

The systemic factors that leave detainees such as Halima at risk of torture reflect the dysfunctional and underfunded criminal justice systems—systems that also allow people to languish in jail for years while awaiting trial on charges that they may well be innocent of.

The report argues that systematic torture flourishes in under-resourced police departments, and in countries where the courts rely too heavily on confessions rather than evidence and forensic work for convictions. And it asserts that affordable or free legal assistance can deter torture – just as it can make it easier for suspects accused of low level, non dangerous crimes to secure their release on bail.

The first report in this series focused on other costs of these failures of the system. The Socioeconomic Impact of Pretrial Detention showed how the issue can have devastating effects on families and communities. When a person is detained their families, who may already be on the brink of poverty, struggle to survive with less income and additional expenses. The impacts are also long-term and intergenerational; for example the families of torture victims take on responsibilities to care for relatives who suffered long-term physical and mental injuries and children grow up facing separation and discrimination.

A third report, which will come out later this year, will look at how excessive pretrial detention can also destroy the health not only of detainees held in overcrowded and often insanitary prisons and detention centers, but also of their communities.

The figures on pretrial detention are terrifying. In Nigeria the average time spent in pretrial detention is 3.7 years; in Kenya some individuals have waited more than 17 years for trial. In many countries, over three quarters of all prisoners are pretrial detainees. This includes Liberia (97 per cent of all prisoners awaiting trial), Mali (89 percent), Benin (80 percent), and Haiti (78 percent).

In many parts of the world poor people have a justifiable fear, that if apprehended by the police they will “fall into a criminal justice abyss that is almost impossible to escape,” according to one of the detainees quoted in the report on torture.

There is little outspoken condemnation from governments, professionals or the public on the systematic use of torture despite the fact that it is recognized as the "most serious violation of the human right to personal integrity and dignity."

Governments need to recognize, in the words of this new report, that “although rational pretrial detention can play an important role in criminal justice systems, it should be the exception rather than rule, to be used only under certain specific conditions.” The costs of doing otherwise are too great.

People at greatest risk come from the poorest and most disadvantaged sectors of society. They are more likely to be discriminated against by the police, less able to pay bribes, and thus more likely to end up in detention. While these people are detained, discrimination usually continues and exposes them to an increased risk of torture. Problems are compounded by their inability to afford a lawyer.

A forthcoming report, Pretrial Detention and Torture, produced by the Ludwig Boltzmann Institute of Human Rights and the University of Bristol Human Rights Implementation Centre in collaboration with the Open Society Justice Initiative, documents the stages of the criminal justice process where detainees are at the greatest risk of torture. While torture and ill-treatment can happen during any phase, from pretrial detention to after a conviction, abuse is most likely to occur before trial.

Torture flourishes early on—usually in the first days or even hours of police custody—when the authorities seek information and/or confessions from detainees. Sadly, in most systems, the moment when police have the greatest incentive to torture and achieve an “easy” closure to their case is also the period when there are the fewest checks on police activity.

The upcoming report makes a number of recommendations:

• Reduce excessive and arbitrary pretrial detention to ensure that it is used as an exceptional measure, in accordance with international law. Fewer people in pretrial detention means fewer people exposed to the risk of torture and a reduction in overcrowding.
• Ensure early access to legal and medical assistance to enable suspects to seek advice prior to interrogation and report cases of torture. The presence of external professionals also increases the openness and transparency of the system.
• Ratify the Optional Protocol to the UN Convention against Torture (OPCA T) and establish National Preventive Mechanisms (NPMs), including establishing mechanisms for the independent monitoring of police lock-ups and other places of pretrial detention.
• Invest in professional law enforcement services that use investigative techniques and practices, and discourage coercive interrogation methods.

A summary of the report is available online; contact me using the comments field below to request a copy of the full report when it becomes available.

Pete’s case is not unusual. Increasing numbers of Europeans travel, work, and study in other EU member states—yet they are surprised to find that rights they had assumed would be available to them are not uniformly accorded across the EU.

Last week, in an historic move, the European Parliament backed legislation to improve the rights of criminal defendants. This first step will ensure that EU citizens facing criminal trials in another Member State may have the proceedings translated and interpreted into their own language. Thus, for future cases, someone like Pete would have core documents provided to him in English. Defendants will also have the right to interpretation during police questioning, court hearings, and communications with their lawyers. This is a huge step forward.

Translation is the first in a series of defendants' rights issues that the European Union is set to address over the coming few years. Next, the EU will tackle legislation concerning a “letter of rights” to be provided to people suspected or accused of a crime, outlining what protections they are entitled to under the law. Access to legal assistance and legal aid is also slated for review.

Implementing these measures not only protects the rights of individuals, but also builds trust among the criminal justice systems of EU member states. Strengthening these ties will help ensure that a judgment made in one EU country is recognized in another. With uniform standards and monitoring, countries can also be confident that anyone extradited to another EU member state will be defended effectively, and his or her rights will be protected.

It is important to keep the momentum going and to base new legislation on experience and best practice. To this end, the Open Society Justice Initiative, in collaboration with JUSTICE, the University of Maastricht, and the University of the West of England today launches the report Effective Criminal Defence in Europe. It documents the state of defense rights in eight EU member states and in Turkey, providing a series of recommendations geared towards improving the rights of criminal defendants and informing the upcoming legislation.

*This is an actual case that was documented by Fair Trials International, but the name has been changed here to protect the defendant’s confidentiality.

Government delegations will discuss ways to improve the effectiveness of their criminal justice systems this week, ending with the adoption of a “Salvador Declaration” documenting the resolutions of the congress. Yet beyond the comfort zone of the Congress Center, how will delegates put these commitments into practice and address the corrupt systems and overcrowded facilities that are the reality in many countries around the world?

Over the course of 2010, more than ten million people will have been detained in police or remand custody. Many will spend months—or even years—without appearing before a judge, languishing under worse conditions than sentenced prisoners. In Brazil—the host country—nearly fifty percent of people in prison have actually not yet been tried, and research suggests that one in every five detainees here is detained illegally.

The Global Campaign for Pretrial Justice—spearheaded by the Open Society Justice Initiative—proposes a three-pronged approach focusing on early access to legal assistance, effective alternatives to pretrial detention, and open and transparent justice systems.

The Global Campaign team is in Salvador to ensure that these issues remain high on the agenda. We are organizing meetings to highlight the damaging consequences of arbitrary pretrial detention and to spotlight promising solutions, ranging from paralegal initiatives to pretrial services programs.

Watch this blog for updated reports from the congress, including perspectives from partner organizations working in Africa, Asia, and Latin America.