Access to Justice

La C. C. de Nicaragua está proporcionando servicios jurídicos para los prisioneros

En 2011, la C. C. de Nicaragua instauró la Defensoría Social para proporcionar asistencia jurídica a los prisioneros que puedan haber ya terminado sus sentencias o ganado la posibilidad de ser puestos en libertad a través de varios mecanismos legales. Un equipo que consiste de tres abogados voluntarios y once estudiantes de derecho identifican a los prisioneros elegibles y llevan sus casos ante los juzgados.

Paralegals in Rwanda: A case study by Penal Reform International. January 2012.

From the report by Penal Reform International: Paralegals are becoming an increasingly important part of the criminal justice system in developing countries. By ensuring more people are aware of their rights within the prison system and can therefore represent themselves and follow up on their cases, paralegals contribute towards a reduction in numbers in pre-trial detention. PRI’s Great Lakes office ran paralegal programmes in both Rwanda and Burundi, although this leaflet focuses specifically on PRI’s experience of designing and delivering paralegal programmes in Rwanda. It also presents the lessons learned. While there is a huge range of paralegal services, the one that PRI used in Rwanda is a model for providing legal aid, which has been tried and tested in a number of different countries and shown to be effective.

Pretrial detention and health: Unintended consequences, deadly results. Open Society Justice Initiative (2011). New York:Open Society Foundations.

From the literature review by the Open Society Justice Initiative: The excessive use of pretrial detention leads to overcrowded, unhygienic, chaotic, and violent environments where pretrial detainees—who have not been convicted—are at risk of contracting disease. Pretrial holding facilities, which include police lock-ups not designed for large numbers or extended stays, often force detainees to live in filthy, teeming conditions without access to fresh air, minimal sanitation facilities, health services, or adequate food. In the worst cases, detainees die from these conditions and associated disease, and surviving detainees sleep with the corpses. Some pretrial detention centers are so bad that innocent people plead guilty just to be transferred to prisons where the conditions might be better. For many pretrial detainees, being locked away in detention centers where tuberculosis, hepatitis C, and HIV are easily contracted can be a death sentence.

Prison Fellowship Nicaragua and the Supreme Court of Justice

PF Nicaragua signed an agreement with the Supreme court in order to help to prisoners who cannot afford a lawyer. According to Monsignior Peña of PF Nicaragua and the President of the Supreme Court free legal assistance "will help to the consolidation of a justice prison system that is more efficent and respectful of the human rights in the frame of the restorative justice contemplated in our "Great Charter" "Carta Magna."

Pretrial Problems

This short video (the first of three from CURE International) provides a quick overview of the many problems that result from the over use of pre-trial detention.

La C. C. de Nicaragua está promoviendo la asesoría legal para los prisioneros

En su trabajo con los prisioneros, los voluntarios de la C. C. de Nicaragua frecuentemente encuentran prisioneros que ya han cumplido sus sentencias pero que no han sido liberados debido a demoras judiciales así como a otros asuntos legales. En respuesta a ello, el ministerio nacional desarrolló dos asociaciones que resultaron en convenios con la Suprema Corte de Justicia de Nicaragua y con la Universidad Americana en Managua. Los convenios crean mecanismos para que los voluntarios de defensa social de la C. C. de Nicaragua, ayudados por estudiantes de Derecho, proporcionen asistencia legal para revisar y procesar casos penales.

Caracterización de la población en prisión preventive en Chile. Ana María Morales Peillard, et. al, (2011). Santiago, Chile: Fundación Paz Ciudadana and Open Society Foundations.

Del documento por Ana María Morales Peillard, et. al: Este estudio se enmarca en una serie de actividades realizadas conjuntamente por Fundación Paz Ciudadana y Open Society Justice Iniciative1, destinadas a evaluar el estado actual del régimen de prisión preventiva en Chile2 con la finalidad de producir políticas públicas que den solución al aumento de la poblacióncarcelaria experimentado en los últimos años en el país.

Scaling up HIV-related legal services. Report of case studies: Ukraine, Kenya, and India. John Godwin (2010). Andemariam, Senai W (2011). International Development Law Organization (IDLO) and United Nations Joint Programme on HIV/AIDS (UNAIDS).

From the toolkit by John Godwin: The objective of this study was to analyse and describe HIV-related legal services in terms of their programmatic components and elements related to quality, monitoring, evaluation, capacity development and expansion of these services. Three services were analysed.

Handbook on improving access to legal aid in Africa. UNODC (2011). Criminal Justice Handbook Series.

From the handbook:The right to legal aid in criminal cases is formally recognized in legal systems throughout the continent. Countries cite and draw upon regional and international human rights instruments to inform and incorporate that right in the national legislative framework. National constitutions are in general unequivocal about the right to legal representation in specific criminal cases. Variance exists in the express and operational definitions, scope of coverage and delivery of legal aid services across the continent. The Constitution of South Africa states that everyone who is detained, including every sentenced prisoner, has the right to have a legal practitioner assigned to the accused by the State, at State expense, if substantial injustice would otherwise result, and to be informed of this right. A similar provision, to be represented by a legal practitioner of his or her choice or where it is required in the interest of justice, to be provided with legal representation at the expense of the State and to be informed of these rights, appears in article 42.2f(v) of the Constitution of Malawi. Article 28(3) of the Constitution of Uganda limits the right to State-aided counsel to criminal cases with a possible sentence of death or life imprisonment. In Zambia, the Constitution mandates the definition of scope and eligibility to national legislation. Kenya, Rwanda and the Sudan have similar legal arrangements.

Community-based paralegals: A practitioner's guide. Open Society Foundations (2010). [EN]

From the manual from the open Society Foundations: Around the world, billions of people suffer because they lack access to justice services. Unable to afford lawyers and ignored by authorities, their rights are routinely violated— cheated by employers, preyed upon by corrupt officials, and victimized by violence. Often poor and disenfranchised, these individuals—and even whole communities—struggle to find means of recourse or redress for the harm done to them.

Taking justice into custody: The legal needs of prisoners. Anne Grunseit, et. al. (2008). Access to Justice & Legal Needs. Vol. 5. Sydney: Law and Justice Foundation of New South Wales.

From the report by Anne Grunseit, et. al.: The legal needs of prisoners project, Taking justice into custody, is part of a broader program of research being undertaken by the Law and Justice Foundation of New South Wales into the access to justice by, and the legal needs of, economically and socially disadvantaged people.

Prison Official On OverCrowdedness At Prison

From the article in The Inquirer Online (from Liberia): The Coordinator of Access to Justice and Legal Aid in Liberia has criticized the over crowdedness of prison centers across the country. Rev. Francis Kollie attributed the situation to the lack of access to justice and poor justice system in Liberia.

Unjust deserts: A Thematic Review by HM Chief Inspector of Prisons of the Treatment and Conditions for Unsentenced Prisoners Prisoners in England and Wales.

From the report HM Inspectorate of Prisons for England and Wales: Aim of the report: To assess and examine the treatment and conditions for unsentenced prisoners and review this in the context of local prisons in England and Wales.

Collateral consequences: How pretrial detention stunts socioeconomic development.

The excessive and arbitrary use of pretrial detention critically undermines socioeconomic development—and is especially harmful to the poor. Pretrial detention disproportionately affects individuals and families living in poverty: they are more likely to come into conflict with the criminal justice system, more likely to be detained awaiting trial, and less able to make bail or pay bribes for their release. For individuals, the excessive use of pretrial detention means lost income and reduced employment opportunities; for their families, it means economic hardship and reduced educational outcomes; and for the state, it means increased costs, reduced revenue, and fewer resources for social service programs. (excerpt)

Pretrial detention and corruption: Unable to pay bribes, millions languish in detention.

Corruption flourishes in the pretrial phase because it receives less scrutiny and is subject to more discretion than subsequent stages of the justice process, and often involves the lower paid and most junior actors in the system. Unhindered by scrutiny or accountability, police, prosecutors, and judges are able to arrest, detain, and release individuals based on their ability to pay bribes. Those caught at the nexus of pretrial detention and corruption suffer, and society as a whole also pays a high price. Corruption, of course, is itself a bad outcome. But when mixed with pretrial detention, it leads to other bad outcomes: arbitrary arrests and unnecessary detention, increased public health costs, wasted resources, stunted development, and increased poverty. The justice system’s credibility suffers when the innocent are arrested and even convicted because they cannot pay, and the guilty go free because they can. (excerpt)

Pretrial detention and public health: Unintended consequences, deadly results. The Global Campaign for Pretrial Justice. Open Society Justice Initiative.

The excessive use of pretrial detention leads to overcrowded, unhygienic, chaotic, and violent environments where pretrial detainees—who have not been convicted—are at risk of contracting disease. But they are not the only people whose health is threatened by overreliance on pretrial detention: From tuberculosis in Russia to hepatitis C in California and HIV /AIDS in South Africa, outbreaks of disease that begin in pretrial detention centers quickly spread to the general public. The global overuse of pretrial detention is not just a human rights problem, but also a looming public health crisis. (excerpt)

Pretrial detention and torture: Why pretrial detainees face the greatest risk. The Global Campaign for Pretrial Justice. Open Society Justice Initiatives. [EN]

Torture and cruel, inhuman or degrading treatment are not aberrations. They are common—even routine—in many detention facilities. Of the nearly ten million people in detention (including both pretrial and post-conviction detainees) around the world, those held in pretrial detention are most at risk of torture. Pretrial detainees are wholly in the power of detaining authorities, many of whom perceive torture as the fastest way to obtain information or a confession and the easiest way to exercise physical and mental control over detainees. The practice is exacerbated by indiscriminate arrests, primarily of poor people without the resources to extricate themselves from detention; criminal justice systems that rely on confessions rather than good policing; official corruption; and public acceptance of torture. (excerpt)

Effective criminal defence in Europe. Ed Cape, et. al., (2010). Antwerp: Intersertia. [EN]

This executive summary provides an overview of the results of a research project ‘Effective defence rights in the EU and access to justice: investigating and promoting best practice’, which was conducted over a three year period commencing in September 2007. The project partners are Maastricht University, JUSTICE, the University of the West of England and the Open Society Justice Initiative. The project was funded by the European Community and the Open Society Institute. The complete results of the research project and a full account of the analysis and conclusions are published in a book, E. Cape, Z. Namoradze, R. Smith and T. Spronken, Effective Criminal Defence in Europe, Antwerpen-Oxford: Intersentia, 2010

Between law and society: Paralegals and the provision of primary justice services in Sierra Leone. Vivek Maru. (2006). New York: Open Society Justice Institute. [EN]

One conventional method of providing legal empowerment is legal services, including representation in routine criminal and civil matters, and public interest “impact” litigation. Legal services, at their best, can achieve concrete victories for the powerless against the powerful: an arbitrarily detained juvenile is released, workers receive their wrongfully unpaid wages, an unjust law is overturned. But legal services have serious limitations. Lawyers are costly, courts are often slow, ineffective and corrupt, and, perhaps most significantly, the solutions afforded by litigation and formal legal process are not always the kinds of solutions desired by the people involved. A second method, which has received increased support in the last 20 years, is legal and human rights education. Education is a critical first step in giving people power. But education alone is often inadequate to change a person’s or a community’s capacity to overcome injustice. The Open Society Justice Initiative collaborated in 2003 with a Sierra Leonean organization, the National Forum for Human Rights, to initiate the rural paralegal effort in Sierra Leone that has become the independent NGO “Timap for Justice.” Timap for Justice has indeed begun to demonstrate the powerful impact that paralegals can have, even in conditions of severe poverty, state failure, and a bifurcated legal system. The program has developed a creative, versatile model to advance justice, one which combines education, mediation, negotiation, organizing, and advocacy. The efficacy of the Sierra Leonean paralegals is due in large measure to their knowledge of and association with the law and to the program’s capacity to litigate in some cases, but also to their familiarity with the social milieu of their clients and the potential for fostering self-help and amicable resolutions. The program strives to solve clients’ justice problems—thereby demonstrating concretely that justice is possible—and at the same time to cultivate the agency of the communities among which it works. The program uses a synthetic approach to Sierra Leone’s dualist legal structure, engaging and seeking to improve both formal and customary institutions. (excerpt)

Progamming for justice: access for all. A practitioner's guide to a human rights-based approach to access justice. (2005). United Nations Development Programme. [EN]

The overall aim of the Practitioner’s Guide is to facilitate programming in access to justice. To this end the Guide takes the approach that the combination of a clear model in line with UNDP precepts, an assessment methodology and a mapping of highly distilled lessons will help the programmer to come to the strategic decisions. This guide has been broken down into seven chapters. It is recommended to first read Chapters 1 and 2, while the other chapters can be consulted as and when needed. (excerpt)