Papers_Presentations_files/UNODC WP Krull 24 June Session 3.1

Report
International Conference on
Access to Legal Aid in Criminal Justice Systems
24 June 2014, Johannesburg, South Africa
Development of legislation on the basis of the Principles
and Guidelines taking into account local context –
Republic of Somaliland
Werner Krull
•
•
•
•
•
•
•
•
•
Treaties between UK and various Somaliland clans result in the
Somaliland Protectorate being proclaimed in 1887
British Somaliland Protectorate: full independence on
26 June 1960
State of Somaliland united on 1 July 1960 with Somalia, a
territory under a U.N.- mandated Italian Trusteeship, thereby
creating the Somali Republic
In early 70’s, Barre military dictatorship wages civil war against Somaliland, leaving in
excess of 50 000 dead and more than 500 000 displaced
Independence declared on 18 May 1991
Population: 3.5 million
Constitutional democracy with a multi-party system
Regular, peaceful elections with change of government
Maintains a number of informal and formal relationships with other states and
international organisations, subscribes to many international conventions and
declarations
UNODC in Somaliland
•
Relative stability over the last two decades, but formal justice system remains
young and unreliable, and faces many challenges including – lack of judicial guidelines and precedent
– lack of legislative and regulatory system
– irregular implementation of existing laws
•
Lack of trust in formal justice system means the majority of the Somaliland
population turns to the Xeer system (customary law) which may not always be
the best way for dispensing justice
•
UNODC’s Criminal Justice Programme targets state-building
interventions to reform Somaliland’s justice sector
•
Corresponding with Somaliland’s Justice Reform Strategy, Somaliland’s
National Development Plan and the Somaliland Special Arrangement
Some facts and figures: legal aid in Somaliland
•
•
•
•
•
•
•
•
•
Mixture of state legal aid and private legal aid
In the limited cases were legal aid was mandatory, nearly one third of the
accused did not receive legal aid and consequently had no legal representation
knowledge amongst inmates in prisons concerning legal aid was low, and
detained persons were at a distinct disadvantage in accessing legal aid
2010 and 2011: 3 Hargeisa-based lawyers who work under the court-appointed
lawyers’ scheme provided legal representation in 107 serious crimes cases
2011: legal aid service providers delivered legal assistance (including information
and advice, representation and mediation services) to 6403 people (379 persons
charged with a serious crime)
2012: annual budget for the court-appointed lawyers’ scheme = approximately
USD 5000 (or 1000 court hearings)
Verification of data difficult, since no common case management system
legal aid on a full time basis only available in Hargeisa, ad hoc legal aid elsewhere
Principle of legal aid not denied or challenged by anyone
Constitution of the Republic of Somaliland, 2000
•
Article 28(3) provides that the state must provide free legal defence in
matters which are determined by the law, and that court fees may be waived
for the indigent
•
Article 10(2) also states that Somaliland recognises and will act in conformity
with the United Nations Charter and with international law, and will respect the
Universal Declaration of Human Rights
•
Article 21(2) states that the articles in the Constitution which relate to
fundamental rights and freedoms must be interpreted in a manner consistent
with the international conventions on human rights and also with the
international laws referred to in the Constitution
Drafting a legal aid bill for Somaliland
•
Somaliland Legal Aid Policy, 2013: strong on principle, weaker on
implementation specifics
•
As-is studies by UNDP and UNODC, identifying challenges:
–
–
–
–
–
–
–
–
–
–
–
–
absence of a sustainable funding model
absence of an adequate pool of individual legal aid providers
quality of current legal aid services
criminal law consequences should legal aid not be provided
lack of geographical availability of legal aid services
lack of professional monitoring, evaluation and planning of and for legal aid provision
desirability of a public defender system
eligibility and means testing
use of paralegals for certain legal aid services
impact of an unorganised legal profession in providing pro bono services
obstacles in gaining timeous access to detained persons
legal aid within the traditional legal systems of adjudication
In essence: the status quo
•
•
•
•
•
•
•
•
•
lack of public funds for a legal aid system
a mostly poor population
low capacity to manage a legal aid system
struggling legal environment
overdependence on foreign funding
unorganised legal profession
lack of knowledge in the general population
police and custodial corps not promoting the use of the legal aid system
systemic deficiencies in the justice system and a number of gaps in the
systematic provision of legal aid
Legal aid framework design
•
•
•
•
•
•
Roger Smith, Director, Justice, UK: “Legal Aid: Models of Organisation”
written for a conference of the European Forum on Access to Justice held in
Budapest on 5-7 December 2002, available on
http://www.legalaidreform.org/civil-legal-aidresources/item/download/120_2b0dbaae480e4779350f7c13f5982c3f
American Bar Association: “Ten Principles of a Public Defense Delivery
System”
African Commission on Human & Peoples’ Rights: Principles and
Guidelines on the Right to a Fair Trial and Legal Assistance in Africa
UNODC: Handbook on improving access to legal aid in Africa, 2011
United Nations: Principles and Guidelines on Access to Legal Aid in Criminal
Justice Systems, 2013
Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in
Africa, 2004
Legal Aid Bill, 2103
•
•
•
•
•
legal aid is an essential element of a functioning justice system based on the rule of
law, and constitutes a foundation for the enjoyment and protection of other rights,
including the right to a fair trial, and an important mechanism to ensure fairness
and public trust in the justice system and processes
the provision of legal aid is the responsibility of the Somaliland state
legal aid is to be provided without discrimination based on gender, language, race,
political allegiance or other status
the ongoing provision of adequate financial resources for the efficient and effective
management of legal aid is the shared responsibility of the Parliament and the
Government of Somaliland
legal aid is to be provided subject to eligibility rules, and priority must be given to
vulnerable persons
Legal Aid Bill, 2103
•
•
•
•
•
•
legal aid is to be provided by properly qualified and experienced lawyers who
act independently of the institution providing the funding for such legal aid
general population must continuously be educated
a person is entitled to legal aid irrespective of the location where the person is
present
upon arrest, detained persons must immediately and fully be informed of their
right to legal aid
appropriate training must be provided for public prosecutors, police officers,
prison officials and any other public servant who may be in contact with
detained p
constant monitoring the efficacy of the provision of legal aid in Somaliland
Legal Aid Bill, 2103
•
Mandatory eligibility: in criminal cases only, where
– the death penalty or imprisonment exceeding ten years is a competent penalty
– is held or tried on charges of high treason, sedition or any other crime against
the state
– the accused is younger than 15 years
– the accused is or seems to be mentally incompetent
– the accused does not adequately understand or speak Somali or English; or
– the accused is a bona fide refugee or asylum seeker in accordance with
definitions in international instruments or Somaliland law
•
Provision is made in the bill empowering the Minister of Justice to lower this
threshold by regulation should budget availability make this possible
Legal Aid Bill, 2103
•
Conditional eligibility:
– in criminal cases, mandatory eligibility does not apply but the charge or
competent penalty in respect thereof falls within a category of crimes or
penalties prescribed by the Minister of Justice by regulation
– in civil matters, the legal issue falls within a range of matters prescribed by
the Minister of Justice by regulation
– a court deems it to be in the interest of justice
Mechanisms designed to encourage compliance
•
If an arrested or detained person has prior to his or her first appearance in
court not been informed of his or her right to legal aid and of the mechanism
and process to access such legal aid by either–
– the police officer responsible for the arrest of an accused; or
– the police officer or prison officer responsible for his or her detention,
•
•
•
•
that person must immediately be released, and such person may only be rearrested and re-detained if he or she has been informed of his or her right to
legal aid and of the mechanism and process to access such legal aid
Mandatory placing of posters in detention centres
Disciplinary proceedings against non-compliant officers
Duty to provide written reasons for refusal to provide access to legal aid
Focused Legal Aid Unit within the Ministry of Justice
Legal Aid Oversight Committee
– rendering advice on the co-ordination of the provision of legal aid between statefunded legal aid and privately funded legal aid, so that all the people in
Somaliland can access legal aid
– identifying common problems and formulating proposals for addressing such
problems
– promoting coordination between legal aid providers, justice agencies and other
professionals such as health, social services and victim support workers in order
to maximise the effectiveness of the legal aid system
– paying attention to the needs of specific groups, including but not limited to the
elderly, women, children, minorities, persons with disabilities, the mentally ill,
persons living with severe contagious diseases, stateless persons, asylumseekers, foreign citizens, refugees, internally displaced persons and other
vulnerable persons
– monitoring the efficacy of legal aid provision in Somaliland
Public Defender Council
•
•
•
•
•
•
•
independent national institution and performs its functions and exercises its
powers solely in accordance with this Act and other applicable law
establishes, implements and oversees proposed public defender scheme
public defender scheme complements legal aid services and does not replace
any other scheme
members of the Public Defender Council and the chairman are appointed by
the Minister after a public nomination and selection process
special measures to protect tenure of members
supported by a Secretariat
Public defenders –
– are appointed on a full–time basis by the Public Defender Council on such
terms and conditions as it determines
– are not employees of the State or public servants, but of the Public
Defender Council
Etc.
•
•
•
•
Provision is made for paralegals
Lawyers to provide pro bono services
Minister may enter into agreements with donors to provide funding for the
public defender scheme
Minister may make regulations
Implementation
• Bill shortly to be presented to Council of Ministers (cabinet) and Parliament
• Development of public defender scheme
• Funding
• Training
• Public education

similar documents