The following series of questions on the different aspects of access to justice and legal aid, presented under five headings, is one way of introducing the methodology used in preparing this handbook, although these questions address substance rather more than structure and content. The aim is to provide a global idea on the subject and to coordinate best practices with the different aspects of access to justice and legal aid.
Those practices that are the object of this handbook have been described by a group of legal professionals from the ENPI countries of the southern Mediterranean delegated officially by the ministries of justice in their respective countries, during five meetings lasting three days that provided the substance of the handbook.
The five headings proposed in this introduction are the following:
1. The legal and institutional framework for legal aid
2. Cooperation between the ministries of justice and the bar associations, and coordination with the NGOs
3. The accessibility of justice, that is the real possibility of being able to go to trial
4. Legal aid for those in underprivileged social groups
5. Access to justice in the public interest: public interest litigation
Apart from making access to trial easier for litigants and guaranteeing representation before the courts, access to justice is rooted in a legal framework that must be adequate, and in the fair settlement of disputes by the courts.
The range of legal and judicial systems in force in the ENPI southern Mediterranean region are not really an obstacle to making a global analysis of the framework for access to justice, which is governed by legal principles and by national and international legislation, more particularly the obligatory standards in the International Covenant on Civil and Political Rights (equality before the law, assumption of innocence, guarantees against arbitrary arrest, the right to a fair and public trial conducted by a competent, independent and impartial court, established by law), binding on those countries that have ratified the same Covenant and that are destined to use this handbook, as well as those stipulated by the underlying Principles on the independence of judges (independence guaranteed by law, any interference in the judicial process prohibited, sufficient resources for the public service of justice, principles governing the selection, training and rules for the way in which the system functions and is disciplined, fair proceedings and respect for the rights of the parties involved), the underlying Principles on the role of lawyers, barristers and solicitors (effective procedures and mechanisms adequate for equality of access to a lawyer, sufficient resources to ensure the services of legal aid to those who are destitute and other persons in uncertain situations, the freedom to form or to join professional organisations and, in the case of the latter, to cooperate with governments in regard to the services provided by these professionals), the underlying Principles on the role of prosecutors (defining the responsibilities of prosecutors regarding the protection of human rights and dignity and ensuring a fair trial, the strict separation of court functions from those of the public prosecutor's office), the code of conduct of agents responsible for enforcing the law (respect for human rights and assistance for all persons in need of urgent help), the underlying principles on treatment of prisoners (prohibition of discrimination, respect for human rights as well as for international conventions, reinsertion of ex-prisoners in society in the best possible conditions, bearing in mind the rights of victims).
Furthermore, some particularly important work has been accomplished over the past decade by the Council of Europe, the European Commission for the Efficiency of Justice (CEPEJ), to produce precise principles and recommendations on the multiple aspects of access to justice.
International and regional references, more particularly European, listed under the heading “Principal References", attached to this handbook, take account of the amount of work accomplished to date.
These references help the reader better understand these sources and ramifications of best practices that have been produced by consensus within the work group mentioned above.
Accompanied by interventions from specialists on a range of issues relative to the object of their meetings, participants at the working meetings that gave rise to this handbook have been led through their discussions to deal with the growing needs arising in their respective countries, more particularly due to political upheavals in that region, and to take account of this in their work.
This analysis should be an introduction to the theme that will lead to defining, on the one hand, means of access to justice, and, on the other, the obstacles that hinder such access or simply exclude access to justice, the aim being to guarantee equality for all in gaining access to justice, whatever a person’s legal status (this is particularly important in dealing with illegal migrants, refugees and asylum seekers) or social status (whether these are underprivileged groups discriminated against on the grounds of gender, religion, income, displacement that has affected them due to conflict or war, etc.).
Among the obstacles to access to justice we find:
- on the one hand, the high cost of justice (the cost of proceedings, judicial expertise, lawyer's fees), out-dated or incorrect legislation (namely that defining the organisation of justice and judicial procedure), a lack of statistics, a lack of mechanisation in the courts or insufficient staff training
- and, on the other, a lack of information for litigants on their rights, and, for those who are sufficiently well informed, a lack of material means to help gain access justice.
A consequence of these obstacles, is that the ENPI countries of the southern Mediterranean are working to reform the justice sector and are supported in this task by the European Union, this handbook being an example of the results of this cooperation.
The question of access to justice is inherent in the reform of justice. Legal aid is a means of guaranteeing equality among litigants and also of confronting the growing demand for justice.
Best practices in gaining access to justice are those arising from the objective of making justice independent, impartial, diligent, effective and efficient (for the lowest cost and with the best quality).
Basically, these same parameters are the same for legal assistance (that is legal counselling and judicial representation). Can legal aid have an influence on justice?
The questions raised briefly below are not exhaustive in that they serve as a simple framework within which to develop “best practices", that is pertinent, generic responses to questions raised, these responses forming the substance of this handbook as a “reference document" on access to justice and legal aid.
Legal aid provides access to justice for the underprivileged and contributes to the quality of justice (simplified procedure, reasonable cost, swift progress, well grounded judgments, etc.), to which litigants, in certain cases, may prefer conciliatory mechanisms, that are possibly traditional.
These alternative methods to settling disputes have their own disadvantages in trying to meet the aim of access to justice, particularly when they apply customs rooted in the discrimination of women.
Mediation organised by law and conducted by a group of specialists could overcome shortcomings in this field.