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International Conference on Access to Legal Aid in Criminal Justice Systems 24 June 2014, Johannesburg, South Africa Werner Krull Development of legislation.

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Presentation on theme: "International Conference on Access to Legal Aid in Criminal Justice Systems 24 June 2014, Johannesburg, South Africa Werner Krull Development of legislation."— Presentation transcript:

1 International Conference on Access to Legal Aid in Criminal Justice Systems 24 June 2014, Johannesburg, South Africa Werner Krull Development of legislation on the basis of the Principles and Guidelines taking into account local context – Republic of Somaliland

2 Treaties between UK and various Somaliland clans result in theTreaties between UK and various Somaliland clans result in the Somaliland Protectorate being proclaimed in 1887 British Somaliland Protectorate: full independence onBritish Somaliland Protectorate: full independence on 26 June 1960 State of Somaliland united on 1 July 1960 with Somalia, aState of Somaliland united on 1 July 1960 with Somalia, a territory under a U.N.- mandated Italian Trusteeship, thereby creating the Somali Republic In early 70’s, Barre military dictatorship wages civil war against Somaliland, leaving in excess of dead and more than displacedIn early 70’s, Barre military dictatorship wages civil war against Somaliland, leaving in excess of dead and more than displaced Independence declared on 18 May 1991 Independence declared on 18 May 1991 Population: 3.5 millionPopulation: 3.5 million Constitutional democracy with a multi-party system Constitutional democracy with a multi-party system Regular, peaceful elections with change of governmentRegular, peaceful elections with change of government Maintains a number of informal and formal relationships with other states and international organisations, subscribes to many international conventions and declarationsMaintains a number of informal and formal relationships with other states and international organisations, subscribes to many international conventions and declarations

3 UNODC in Somaliland Relative stability over the last two decades, but formal justice system remains young and unreliable, and faces many challenges including -Relative stability over the last two decades, but formal justice system remains young and unreliable, and faces many challenges including - –lack of judicial guidelines and precedent –lack of legislative and regulatory system –irregular implementation of existing laws Lack of trust in formal justice system means the majority of the Somaliland population turns to the Xeer system (customary law) which may not always be the best way for dispensing justiceLack of trust in formal justice system means the majority of the Somaliland population turns to the Xeer system (customary law) which may not always be the best way for dispensing justice UNODC’s Criminal Justice Programme targets state-building interventions to reform Somaliland’s justice sector UNODC’s Criminal Justice Programme targets state-building interventions to reform Somaliland’s justice sector Corresponding with Somaliland’s Justice Reform Strategy, Somaliland’s National Development Plan and the Somaliland Special ArrangementCorresponding with Somaliland’s Justice Reform Strategy, Somaliland’s National Development Plan and the Somaliland Special Arrangement

4 Some facts and figures: legal aid in Somaliland Mixture of state legal aid and private legal aidMixture of state legal aid and private legal aid In the limited cases were legal aid was mandatory, nearly one third of the accused did not receive legal aid and consequently had no legal representationIn the limited cases were legal aid was mandatory, nearly one third of the accused did not receive legal aid and consequently had no legal representation knowledge amongst inmates in prisons concerning legal aid was low, and detained persons were at a distinct disadvantage in accessing legal aidknowledge amongst inmates in prisons concerning legal aid was low, and detained persons were at a distinct disadvantage in accessing legal aid 2010 and 2011: 3 Hargeisa-based lawyers who work under the court-appointed lawyers’ scheme provided legal representation in 107 serious crimes cases2010 and 2011: 3 Hargeisa-based lawyers who work under the court-appointed lawyers’ scheme provided legal representation in 107 serious crimes cases 2011: legal aid service providers delivered legal assistance (including information and advice, representation and mediation services) to 6403 people (379 persons charged with a serious crime)2011: legal aid service providers delivered legal assistance (including information and advice, representation and mediation services) to 6403 people (379 persons charged with a serious crime) 2012: annual budget for the court-appointed lawyers’ scheme = approximately USD 5000 (or 1000 court hearings)2012: annual budget for the court-appointed lawyers’ scheme = approximately USD 5000 (or 1000 court hearings) Verification of data difficult, since no common case management systemVerification of data difficult, since no common case management system legal aid on a full time basis only available in Hargeisa, ad hoc legal aid elsewherelegal aid on a full time basis only available in Hargeisa, ad hoc legal aid elsewhere Principle of legal aid not denied or challenged by anyone Principle of legal aid not denied or challenged by anyone

5 Constitution of the Republic of Somaliland, 2000 Article 28(3) provides that the state must provide free legal defence in matters which are determined by the law, and that court fees may be waived for the indigentArticle 28(3) provides that the state must provide free legal defence in matters which are determined by the law, and that court fees may be waived for the indigent Article 10(2) also states that Somaliland recognises and will act in conformity with the United Nations Charter and with international law, and will respect the Universal Declaration of Human RightsArticle 10(2) also states that Somaliland recognises and will act in conformity with the United Nations Charter and with international law, and will respect the Universal Declaration of Human Rights Article 21(2) states that the articles in the Constitution which relate to fundamental rights and freedoms must be interpreted in a manner consistent with the international conventions on human rights and also with the international laws referred to in the ConstitutionArticle 21(2) states that the articles in the Constitution which relate to fundamental rights and freedoms must be interpreted in a manner consistent with the international conventions on human rights and also with the international laws referred to in the Constitution

6 Drafting a legal aid bill for Somaliland Somaliland Legal Aid Policy, 2013: strong on principle, weaker on implementation specificsSomaliland Legal Aid Policy, 2013: strong on principle, weaker on implementation specifics As-is studies by UNDP and UNODC, identifying challenges:As-is studies by UNDP and UNODC, identifying challenges: – absence of a sustainable funding model – absence of an adequate pool of individual legal aid providers –quality of current legal aid services –criminal law consequences should legal aid not be provided – lack of geographical availability of legal aid services –lack of professional monitoring, evaluation and planning of and for legal aid provision –desirability of a public defender system –eligibility and means testing –use of paralegals for certain legal aid services – impact of an unorganised legal profession in providing pro bono services – obstacles in gaining timeous access to detained persons –legal aid within the traditional legal systems of adjudication

7 In essence: the status quo lack of public funds for a legal aid systemlack of public funds for a legal aid system a mostly poor populationa mostly poor population low capacity to manage a legal aid systemlow capacity to manage a legal aid system struggling legal environmentstruggling legal environment overdependence on foreign fundingoverdependence on foreign funding unorganised legal professionunorganised legal profession lack of knowledge in the general populationlack of knowledge in the general population police and custodial corps not promoting the use of the legal aid systempolice and custodial corps not promoting the use of the legal aid system systemic deficiencies in the justice system and a number of gaps in the systematic provision of legal aidsystemic deficiencies in the justice system and a number of gaps in the systematic provision of legal aid

8 Legal aid framework design Roger Smith, Director, Justice, UK: “Legal Aid: Models of Organisation” written for a conference of the European Forum on Access to Justice held in Budapest on 5-7 December 2002, available on resources/item/download/120_2b0dbaae480e f7c13f5982c3f Roger Smith, Director, Justice, UK: “Legal Aid: Models of Organisation” written for a conference of the European Forum on Access to Justice held in Budapest on 5-7 December 2002, available on resources/item/download/120_2b0dbaae480e f7c13f5982c3f resources/item/download/120_2b0dbaae480e f7c13f5982c3f resources/item/download/120_2b0dbaae480e f7c13f5982c3f American Bar Association : “Ten Principles of a Public Defense Delivery System” American Bar Association : “Ten Principles of a Public Defense Delivery System” African Commission on Human & Peoples’ Rights : Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa African Commission on Human & Peoples’ Rights : Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa UNODC : Handbook on improving access to legal aid in Africa, 2011 UNODC : Handbook on improving access to legal aid in Africa, 2011 United Nations: Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, 2013 United Nations: Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, 2013 Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa, 2004

9 Legal Aid Bill, 2103 legal aid is an essential element of a functioning justice system based on the rule of law, and constitutes a foundation for the enjoyment and protection of other rights, including the right to a fair trial, and an important mechanism to ensure fairness and public trust in the justice system and processeslegal aid is an essential element of a functioning justice system based on the rule of law, and constitutes a foundation for the enjoyment and protection of other rights, including the right to a fair trial, and an important mechanism to ensure fairness and public trust in the justice system and processes the provision of legal aid is the responsibility of the Somaliland statethe provision of legal aid is the responsibility of the Somaliland state legal aid is to be provided without discrimination based on gender, language, race, political allegiance or other statuslegal aid is to be provided without discrimination based on gender, language, race, political allegiance or other status the ongoing provision of adequate financial resources for the efficient and effective management of legal aid is the shared responsibility of the Parliament and the Government of Somalilandthe ongoing provision of adequate financial resources for the efficient and effective management of legal aid is the shared responsibility of the Parliament and the Government of Somaliland legal aid is to be provided subject to eligibility rules, and priority must be given to vulnerable personslegal aid is to be provided subject to eligibility rules, and priority must be given to vulnerable persons

10 Legal Aid Bill, 2103 legal aid is to be provided by properly qualified and experienced lawyers who act independently of the institution providing the funding for such legal aidlegal aid is to be provided by properly qualified and experienced lawyers who act independently of the institution providing the funding for such legal aid general population must continuously be educatedgeneral population must continuously be educated a person is entitled to legal aid irrespective of the location where the person is presenta person is entitled to legal aid irrespective of the location where the person is present upon arrest, detained persons must immediately and fully be informed of their right to legal aidupon arrest, detained persons must immediately and fully be informed of their right to legal aid appropriate training must be provided for public prosecutors, police officers, prison officials and any other public servant who may be in contact with detained pappropriate training must be provided for public prosecutors, police officers, prison officials and any other public servant who may be in contact with detained p constant monitoring the efficacy of the provision of legal aid in Somalilandconstant monitoring the efficacy of the provision of legal aid in Somaliland

11 Legal Aid Bill, 2103 Mandatory eligibility : in criminal cases only, where Mandatory eligibility : in criminal cases only, where –the death penalty or imprisonment exceeding ten years is a competent penalty –is held or tried on charges of high treason, sedition or any other crime against the state –the accused is younger than 15 years –the accused is or seems to be mentally incompetent –the accused does not adequately understand or speak Somali or English; or –the accused is a bona fide refugee or asylum seeker in accordance with definitions in international instruments or Somaliland law Provision is made in the bill empowering the Minister of Justice to lower this threshold by regulation should budget availability make this possibleProvision is made in the bill empowering the Minister of Justice to lower this threshold by regulation should budget availability make this possible

12 Legal Aid Bill, 2103 Conditional eligibility : Conditional eligibility : –in criminal cases, mandatory eligibility does not apply but the charge or competent penalty in respect thereof falls within a category of crimes or penalties prescribed by the Minister of Justice by regulation –in civil matters, the legal issue falls within a range of matters prescribed by the Minister of Justice by regulation –a court deems it to be in the interest of justice

13 Mechanisms designed to encourage compliance If an arrested or detained person has prior to his or her first appearance in court not been informed of his or her right to legal aid and of the mechanism and process to access such legal aid by either–If an arrested or detained person has prior to his or her first appearance in court not been informed of his or her right to legal aid and of the mechanism and process to access such legal aid by either– –the police officer responsible for the arrest of an accused; or –the police officer or prison officer responsible for his or her detention, that person must immediately be released, and such person may only be re- arrested and re-detained if he or she has been informed of his or her right to legal aid and of the mechanism and process to access such legal aid Mandatory placing of posters in detention centresMandatory placing of posters in detention centres Disciplinary proceedings against non-compliant officersDisciplinary proceedings against non-compliant officers Duty to provide written reasons for refusal to provide access to legal aidDuty to provide written reasons for refusal to provide access to legal aid Focused Legal Aid Unit within the Ministry of JusticeFocused Legal Aid Unit within the Ministry of Justice

14 Legal Aid Oversight Committee –rendering advice on the co-ordination of the provision of legal aid between state- funded legal aid and privately funded legal aid, so that all the people in Somaliland can access legal aid –identifying common problems and formulating proposals for addressing such problems –promoting coordination between legal aid providers, justice agencies and other professionals such as health, social services and victim support workers in order to maximise the effectiveness of the legal aid system –paying attention to the needs of specific groups, including but not limited to the elderly, women, children, minorities, persons with disabilities, the mentally ill, persons living with severe contagious diseases, stateless persons, asylum- seekers, foreign citizens, refugees, internally displaced persons and other vulnerable persons –monitoring the efficacy of legal aid provision in Somaliland

15 Public Defender Council independent national institution and performs its functions and exercises its powers solely in accordance with this Act and other applicable lawindependent national institution and performs its functions and exercises its powers solely in accordance with this Act and other applicable law establishes, implements and oversees proposed public defender schemeestablishes, implements and oversees proposed public defender scheme public defender scheme complements legal aid services and does not replace any other schemepublic defender scheme complements legal aid services and does not replace any other scheme members of the Public Defender Council and the chairman are appointed by the Minister after a public nomination and selection processmembers of the Public Defender Council and the chairman are appointed by the Minister after a public nomination and selection process special measures to protect tenure of membersspecial measures to protect tenure of members supported by a Secretariatsupported by a Secretariat Public defenders –Public defenders – –are appointed on a full–time basis by the Public Defender Council on such terms and conditions as it determines –are not employees of the State or public servants, but of the Public Defender Council

16 Etc. Provision is made for paralegalsProvision is made for paralegals Lawyers to provide pro bono servicesLawyers to provide pro bono services Minister may enter into agreements with donors to provide funding for the public defender schemeMinister may enter into agreements with donors to provide funding for the public defender scheme Minister may make regulationsMinister may make regulationsImplementation Bill shortly to be presented to Council of Ministers (cabinet) and ParliamentBill shortly to be presented to Council of Ministers (cabinet) and Parliament Development of public defender schemeDevelopment of public defender scheme FundingFunding TrainingTraining Public educationPublic education


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