FACTSHEET 3.9. Lack of access to legal aid Most legal systems are too complex for detainees to represent themselves and many prisoners, coming from poor and marginalised backgrounds, are unable to afford a lawyer. Access to legal aid is a precondition for them to have access to legal representation. complaints against conditions of detention or treatment in breach of national/international standards; submissions or motions for non-custodial alternatives such as bail? • Are legal aid providers available and accessible in practice? A legal aid system40 needs to be available,41 accessible and effective.42 The revised Standard Minimum Rules require that untried prisoners are assigned a legal adviser if they do not have one of their own choice in ‘all cases where the interests of justice so require and without payment’ if they do not have sufficient means.43 • What is the delay between an application for legal aid Access to legal aid requires, first of all, that detainees are aware of the availability of legal aid schemes. The revised Standard Minimum Rules require that detainees are informed upon admission about their rights and that this should cover access to legal advice, including through legal aid schemes. This information must be made available ‘in the most commonly used languages’, with interpretation if the detainee does not understand any of these languages, orally in case of illiteracy, and in a manner appropriate to their needs for prisoners with sensory disabilities.44 • What is the income test applied for eligibility for a In order to be accessible, the detainee must be provided with ‘adequate opportunity, time and facilities to be visited by and to communicate and consult with a legal adviser of their own choice or a legal aid provider, without delay, interception or censorship and in full confidentiality, on any legal matter, in conformity with applicable domestic law’. 3.10.  Discrimination against certain groups Furthermore, the effectiveness of legal aid requires an avenue to challenge the denial of legal aid.45 The revised Standard Minimum Rules provide that denial of access to a legal adviser shall be subject to independent review without delay.46 In cases where detainees do not speak the local language, the prison administration should facilitate access to the services of an independent and competent interpreter.47 What could monitoring bodies check? • Are remand prisoners notified of their right to apply for legal aid? When, how and by whom is this information provided? • For which procedures and under what circumstances is legal aid available? Does the legal aid system include: complaints against torture and ill-treatment; and a legal aid provider having actual access to the remand prisoner? • What professional training do legal aid providers undergo, and what is their ethical code? Are they independent? legal aid scheme and what evidence is it based on? Do the criteria discriminate against certain groups, eg. based on gender or social status? • Are statistics available on the number of cases in which legal aid is granted and denied? • Is there a possibility to challenge the denial of access to legal aid? Certain groups of prisoners may be at higher risk of being on remand, often as a result of discrimination in the criminal justice system. For example, Indigenous peoples, racial and ethnic minorities tend to be overrepresented amongst pre-trial detainees. Foreign nationals are frequently presumed to pose a higher risk of absconding, and subject to the increasing criminalisation of migration. Where pre-trial detention is ultimately “ linked to bail, poverty and social marginalization appear to disproportionately affect the prospects of persons chosen to be released pending trial. Bail courts base their decision whether to release an accused person also on his or her “roots in the community”. People having stable residence, stable employment and financial situation, or being able to make a cash 40. States employ different models for the provision of legal aid. These may involve public defenders, private lawyers, contract lawyers, pro bono schemes, bar associations, paralegals and others. 41. Article 14 ICCPR (3) (d): (…) to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it. 42. Revised Standard Minimum Rules, Rule 61 (3); Principle 2, UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (states should ‘ensure a comprehensive legal aid system is in place that is accessible, effective, sustainable and credible’; Principle 12 (ensure that legal aid providers are able to carry out their work effectively); Principle 7 (provides for prompt and effective provision of legal aid ‘at all stages of the criminal process’ and ‘unhindered access to legal aid providers for detained persons.’). 43. Revised Standard Minimum Rules, Rule 119 (1). 44. Revised Standard Minimum Rules, Rules 54 (b) and 55. 45. Principle 9 (Remedies and safeguards), UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, 2012. 46. Revised Standard Minimum Rules, Rule 119 (1). 47. Revised Standard Minimum Rules, Rule 61 (2). 48. Working Group on Arbitrary Detention, Report to the Commission on Human Rights, 12 December 2005, UN-Doc. E/CN.4/2006/7, para. 66. 8 | Penal Reform International | Pre-trial detention: Addressing risk factors to prevent torture and ill-treatment