HANDBOOK ON Ensuring Quality of Legal Aid Services in Criminal Justice Processes PRACTICAL GUIDANCE AND PROMISING PRACTICES CRIMINAL JUSTICE HANDBOOK SERIES Cover images: © Photodisc.com and iStock.com UNITED NATIONS OFFICE ON DRUGS AND CRIME Vienna Handbook on Ensuring Quality of Legal Aid Services in Criminal Justice Processes Practical Guidance and Promising Practices UNITED NATIONS Vienna, 2019 © United Nations, May 2019. All rights reserved, worldwide. The designations employed and the presentation of material in this publication do not imply the expression of any opinion whatsoever on the part of the Secretariat of the United Nations concerning the legal status of any country, territory, city or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries. This publication has not been formally edited. Publishing production: English, Publishing and Library Section, United Nations Office at Vienna. Contents Acknowledgements v Preface vii 1. The right to legal aid 1 A. International human rights standards 1 1. International instruments 1 2. European standards 2 3. American standards 4 4. African standards 5 5. Arab standards 6 6. The role of human rights bodies 6 7. The roles of States, legal aid systems and lawyers 7 B. Specific standards on legal aid: the United Nations Principles and Guidelines on access to legal aid in criminal justice systems 8 2. Legal aid delivery in criminal justice systems 13 A. Legal aid delivery: the legal system 14 1. Adversarial vs. inquisitorial legal systems 14 2. Legal aid laws and regulations 16 B. Legal aid delivery: the institutions 17 1. Delivery model 17 2. Allocating sufficient budget for legal aid 20 3. Meeting the demand for lawyers 21 C. The role of other criminal justice actors 22 3. The legal aid system 27 A. The concept of quality in the national system 27 B. Appointing a national legal aid body 31 1. Establishing a legal aid body 32 2. Independence of the legal aid body 38 3. Independence of individual legal aid providers 39 4. Examples of bodies responsible for quality 42 C. Adopting measures to establish quality 44 1. Appointment of providers 44 2. Establishing quality standards 45 3. Providing training and skill development 45 4. Establishing measures to ensure access to legal aid at all stages of criminal proceedings 46 5. Establishing structure and organizational measures to facilitate delivery of quality services 48 iii D. Establishing specialized legal aid services 57 1. Legal aid for persons with disabilities and mental health problems 58 2. Child-friendly legal aid 59 3. Legal aid for women 63 4. Legal aid for victims 67 E. Establishing tools for data collection and analysis 70 1. Goals of data collection 70 2. Tools for data collection/evaluation of quality 72 4. The legal aid provider 75 A. The legal aid provider – competence and skills 75 1. Who are the providers of legal aid? 75 2. The role of legal aid providers 75 3. Competence and accountabiltiy 82 B. Evaluating the quality of legal aid providers – purposes of evaluation 88 1. Quality assurance vs. quality enhancement 88 2. Public trust in the criminal justice system 89 C. Measures and tools for evaluation of legal aid providers 90 1. Measuring process vs. measuring outcomes 90 2. Defining a scale of quality 91 3. Tools for evaluation and assessment 92 D. Outcomes of evaluation 106 1. Data analysis 106 2. Outcomes for the individual legal aid provider 107 3. Outcomes for beneficiaries of legal aid services 109 5. Quality in action 111 A. Conducting legal aid baseline assessments 111 B. Developing national strategies 115 C. Developing programmes and projects 119 1. Typical programming challenges 119 2. Programming considerations and options 120 Glossary of frequently used terms 121 iv Acknowledgements The present Handbook was developed by the United Nations Office on Drugs and Crime (UNODC). The Handbook was prepared for UNODC by Miri Sharon, International Consultant, and Alan Paterson, Professor of Law, Strathclyde University, Glasgow. Overseeing the develop- ment of the Handbook and conducting the review of the final draft were Valérie Lebaux and Anika Holterhof (UNODC). A first draft of the Handbook was presented and discussed during the expert group meeting on “The Quality of Legal Aid Services in Criminal Justice Systems”, held in Vienna from 26 to 28 September 2018. UNODC wishes to acknowledge the valuable suggestions and contribu- tions of the following experts who participated in that meeting: Agne Limante˙, Alok Agarwal, Caroline Amondi, Claire Carlton-Hanciles, Constatinus Kristomo, Djamshid Turdaliev, Guido Schakenraad, Gustavo Henrique Coelho Hahnemann, James Flomo, Jennifer Smith, Lívia Goncalves Guimaraes Padilha, Madhurima Dhanuka, Marina Ilminska, Nareeluc Pairchaiyapoom, Neil Lewis, Nicolás Laino, Nina Solas-Iloniemi, Peter van den Biggelaar, Ravit Herman, Shuaike Liu, Surinder S. Rathi, Wilna Lambley and Yu Kang. UNODC also wishes to equally acknowledge the valuable feedback provided by the following experts: Avrom Sherr, Christiane Brandão Teles Nogueira, David McQuoid-Mason, Hongyao Wu, Jago Russell, Mark Benton, Mary Angela Murphy, Megan Longley, Mohammed Yehia Mattar, Mykola Sioma, Vicky Kemp and Victor Zaharia. The following UNODC staff contributed to the development of the Handbook: Anika Holterhof, Anna Giudice, Minh Nguyen Nguyet, Piera Barzanò, Sven Pfeiffer and Valérie Lebaux. The Handbook also benefited from the valuable input from Beatrice Duncan from the United Nations Entity for Gender Equality and the Empowerment of Women (UN Women), Georgina Mendoza Solorio, Renaud Gaudin De Villaine and Caroline Ouaffo Wafang from the Office of the United Nations High Commissioner for Human Rights (OHCHR), Alessandro Tonutti, Charles Briefel and Astrid Leao from the United Nations Department of Peacekeeping Operations (DPKO), and Monica Rispo and Kakha Tsikarishvili from the United Nations Development Programme (UNDP). UNODC expresses its gratitude for the support provided by the Ministry of Justice of the People’s Republic of China throughout the development and publication of the Handbook, including by funding the related Expert Group Meeting. v Preface Promoting the rule of law and ensuring access to justice for all is essential in criminal justice system reform to allow all groups in society to equally enjoy their rights, ranging from funda- mental human rights, such as the right to life and the right to a fair trial, to rights deriving from national legal procedures. The important role that access to justice plays in building societies and allowing them to grow affects countries at all levels of development, which was acknowl- edged in Sustainable Development Goal 16 of the 2030 Agenda for Sustainable Development,1 and its target 3: “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.” Ensuring equal access to a fair justice system includes the provision of support to those who do not have the means to actively enforce and protect their rights. Legal aid is an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law. It is a foundation for the enjoyment of other rights, including the right to a fair trial, a precondition to exercising such rights and an important safeguard that ensures fundamental fairness and public trust in the criminal justice process. This was recog- nized in the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (henceforth “UN Principles and Guidelines”), adopted by the General Assembly in December 2012 in resolution 67/187.2 The UN Principles and Guidelines made it an obligation for Member States to put in place an accessible, effective, sustainable and credible legal aid system, and to ensure the quality of legal aid services, in particular those provided at no cost. In resolution 67/187, adopting the UN Principles and Guidelines, the United Nations Office on Drugs and Crime (UNODC) was requested to provide advisory services and technical assis- tance to Member States, upon request, in the area of criminal justice reform, including the development of integrated plans for provision of legal aid, as well as making the UN Principles and Guidelines available through the development of relevant tools. After the adoption of the UN Principles and Guidelines, to have a clear understating of States’ needs and priorities, UNODC and the United Nations Development Programme (UNDP) conducted the Global Study on Legal Aid (henceforth “UNODC/UNDP Global Study”).3 Aiming at establishing a baseline understanding of how the right to legal aid has been defined and addressed around the world, it was the international community’s “first attempt to collect data on and present a comprehensive overview of the state of legal aid globally.”4 The number one priority identified by responding Member States, as well as individual experts, was improving the quality of legal aid services. The Study recommended that the State authority responsible for delivery of legal aid should consider “enhancing the quality of legal aid services, including by developing performance and qualification standards for all legal aid providers”, and encouraged global sharing of experiences, lessons learned and good practices. 1 General Assembly resolution 70/1, entitled “Transforming our world: the 2030 Agenda for Sustainable Development”. 2 General Assembly resolution