What is Legal Aid? What is Public Defense? What is Indigent Defense?
In the United States, "public defense" or "indigent defense" services generally apply to services for criminal matters, while "legal aid" generally applies to services for civil matters. In other countries, the term "legal aid" often covers services for both categories of cases. Legal aid has come to serve as an umbrella term that covers free or low cost legal assistance from lawyers, paralegals and other legal professionals that is provided to those deemed "indigent" - or cannot afford to retain an attorney -- regarding matters entailing criminal, civil, administrative and international law. The following is a short overview of the diversity of approaches countries are using to provide "legal aid".
International Norms on Legal Aid
Universal Declaration of Human Rights. 1948
The Universal Declaration of Human Rights, approved by the United Nations General Assembly on December 10, 1948, guarantees the right to a fair trial. Many justice systems around the world, and the United Nations itself, have interpreted a right to counsel as a necessity for a fair trial.
Convention for the Protection of Human Rights and Fundamental Freedoms. 1950
The Convention for the Protection of Human Rights and Fundamental Freedoms, commonly known as the European Convention on Human Rights, recognized the right to a fair trial, including an explicit right to counsel, in 1950.
UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. 2012
On December 20, 2012, the United Nations Economic and Social Council approved the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (the "Legal Aid Guidelines." These Guidelines are the first direct, detailed statement on Legal Aid. The Guidelines affirm the right to counsel as essential to the rule of law.
Definition of Legal Aid: "legal advice, assistance and representation for persons detained, arrested or imprisoned, suspected or accused of, or charged with a criminal offence and for victims and witnesses in the criminal justice process that is provided at no cost for those without sufficient means or when the interests of justice so require."
Legal Aid is Not Just for Defendants: The Guidelines contemplate not only counsel for those accused of crimes, but also, where appropriate, for others who may be involved in the legal system, such as "victims and witnesses." (Principles 4 & 5).
Legal Aid is Not Just Representation; The Guidelines include a wide sphere of activities within the concept of legal aid, including "the concepts of legal education, access to legal information and other services provided for persons through alternative dispute resolution mechanisms and restorative justice processes."
Legal Aid is Not Just for Criminal Courts: The Guidelines discuss not only the representation of counsel in criminal courts, but also "alternative dispute resolution mechanisms and restorative justice processes."
The Legal Aid Guidelines can be viewed here. [ United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems]
For a brief summary of Legal Aid/Public Defense services in the countries listed below that provide a snapshot of the approaches being used among countries providing these services, please access the links below:
- Costa Rica
- England and Wales
- Hong Kong
- New Zealand
- Northern Ireland
- South Africa
- United States
For a more detailed international perspective on indigent defense and legal aid services, see: International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward.
Funding for Legal AID
Sources of Funding
Government funds usually make up most to all of the spending provided for legal aid services. Legal aid services in most countries' are funded by the central government. In some countries, however, legal aid services are funded by individual provinces or by both the province or subdivision together with the central government. Every country has a form of means testing for legal aid applicants. Countries with civil legal aid programs that are well-developed also apply criteria for prioritizing cases for which counsel is provided. In most Western countries, the individual receiving legal aid, particularly in civil cases, is required to make some financial contribution. Generally, legal aid in criminal cases is subject to well-defined income or assets cutoffs and involves no repayment.
Amount of Funding Provided: Percentage of GDP (Gross Domestic Product)
As noted above, provision of legal aid services is generally provided by the government of the country involved. While the relative "need" among countries for legal aid services is a product of numerous factors, including the nature and volume of litigation that is conducted and the economic situation of litigants, there is no accepted formula that has been developed to determine the funding needed, as well as a framework for assessing the degree to which these services are provided on an international level. However, some comparative assessment can be derived by considering legal aid funding in a country as a percentage of that country's Gross Domestic Product (GDP). Charts 1 and 2 below illustrate the range of public spending on legal aid as a percentage of the GDP for 18 countries for which this information was readily available. The information for the United States is not readily available because of the multiple levels of government involved in the funding of indigent defense services and legal aid.
Legal Aid Funding and the Impact of the Global Economic Crisis
While the UN Guidelines represent a major substantive step forward in the international recognition of the importance of Legal Aid, these progressive developments are occurring at a time that many legal aid systems are facing budget cuts and the curtailment of services. This is particularly the case in some of the countries with the oldest and best funded legal aid systems, such as England and Wales, The Netherlands and New Zealand. Much of this is due to austerity measures put in place by governments following the financial crisis of 2007-2008.
For a fuller discussion of the various approaches for providing legal aid services internationally see: International Perspectives on Indigent Defense and Legal Aid: Shared Challenges and the Road Forward. Sam Flores. May 2014.
Interamerican Program of Judicial Facilitators (IPJF)
The Interamerican Program of Judicial facilitators (IPJF) reinforces the access of justice to the citizens who live in more outlying rural areas of Latin America by establishing a service with national coverage, administered by the Justice Department. It is promoted by the Organization of American States. The program offers an opportunity to graduate and undergraduate students to complete their thesis about the National Service of Judicial Facilitators on any country where the Program is established.IPJF is currently established on Nicaragua, El Salvador, Costa Rica, Honduras, Panama, Paraguay and Argentina. By 2015, it will be established in five more countries, bringing the total number of countries in which it provides services to twelve.Students interested in working with the IPJF can find more information at: https://www.oas.org/en/sla/judicial_facilitators.asp
The research program is merit-based and open to anyone who:
Is enrolled as a full-time undergraduate student in good academic standing at a registered academic institution, public or prívate
Is able to begin the research program and conduct field work on any of the countries where the program is established.
Is an intermediate spanish speaker.
- Impact of the National Service of Judicial Facilitators (NSJF) on gender relations.
- Impact of the National Service of Judicial Facilitators (NSJF) on gender violence prevention.
- Impact of the National Service of Judicial Facilitators (NSJF) on the citizen security.
- Economic impact of the National Service of Judicial Facilitators at personal, community and local level.
- Impact of the National Service of Judicial Facilitators (NSJF) on indigenous population.
- Impact of the National Service of Judicial Facilitators (NSJF) on population of marginalized urban neighborhoods.
Legal Empowerment of the Poor in Nicaragua by Margot Kokke and Pedro Vuskovic