Part 4 of the 'Access to Justice' sector of the Criminal Justice Assessment Toolkit, produced by the United Nation Office on Drugs and Crime in close co-operaiton with the Strategic Police Matters Unit of the OSCE Secretariat.
This tool guides the assessment of the provision of legal representation to people being investigated for or charged with a criminal offence with a focus on provision of these services to the poor or indigent accused. Access to justice is fundamental to the protection of human rights as is evidenced in numerous human rights instruments. In securing justice as a basic human right, the Universal Declaration of Human Rights enshrines the key principles of equality before the law, the presumption of innocence, the right to a fair and public hearing by an independent and impartial tribunal, along with all the guarantees necessary for the defence of anyone charged with a penal offence. Article 14 of the International Covenant on Civil and Political Rights grants among the minimum guarantees the right to be tried without undue delay, the right to a fair and public hearing by a competent, independent and impartial tribunal established by law and to “defend [oneself] in person or through legal assistance of [one’s] own choosing; to be informed, if [one] does not have legal assistance, of this right; and to have legal assistance assigned to [one], in any case where the interests of justice so require, and without payment” as well as the right to“have adequate time and facilities for the preparation of [one’s] defence and to communicate with counsel of [one’s] own choosing.” The Body of Principles for the Protection of All Persons under Any Form of Detention provides that a detained person shall be entitled to have the assistance of counsel, while the Standard Minimum Rules for the Treatment of Prisoners recommends that legal assistance be assured for prisoners pending adjudication.
These instruments recognize that when a person's fundamental rights to liberty and life are put at risk by the State, that person has a right to legal assistance to ensure that the State properly meets the burdens and obligations imposed by law to do so, and further, has not violated the rights of the individual in the process. As a result, the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders adopted in 1990 the UN Basic Principles on the Role of Lawyers making its first principle the following: “All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.” The Basic Principles further place responsibility upon the government and the legal profession itself to ensure access to counsel to everyone, regardless of means or background, as a means of ensuring the right to equality before the law. As a logical extension, governments have the responsibility for funding legal representation when the accused do not have the means to pay for it themselves.