Making Legal Aid a Reality

291 Pages·2009·1.34 MB·English

pili
Public Interest
Law Institute
Making Legal Aid
a Reality
A Resource Book for Policy Makers and Civil Society

Public Interest Law Institute
Making Legal Aid a Reality
A Resource Book for Policy Makers and Civil Society
••
••
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Making Legal Aid
a Reality
A Resource Book for Policy Makers and Civil Society
pili Public Interest
Law Institute
Now known as
••
© 2009 Public Interest Law Institute

This publication is made available to the world through the Creative Commons Attribution-Noncommercial-No Derivatives
3.0 License Agreement (http://creativecommons.org/licenses/by-nc-nd/3.0/legalcode). Parts of this publication may be
quoted or distributed, but only for non-commercial purposes, provided the Public Interest Law Institute is acknowledged as
the source. No alterations, modifications, adaptations or translations may be made, without the advance written permission
of the Public Interest Law Institute.
Articles included in Making Legal Aid a Reality: A Resource Book for Policy Makers and Civil Society express the opinions of
the authors and do not necessarily reflect the opinions of PILI or an affiliated institution.
ISBN: 978-963-88337-0-9
Price: USD 15.00
Published by
Public Interest Law Institute
Paulay Ede utca 50, H–1061 Budapest, Hungary
Tel: [phone]
Fax: [phone]
Website: www.pili.org
Cover photo © iStockphoto.com/Marje
Typography and layout by Judit Kovacs • Createch Ltd.
Printed in Hungary by Createch Ltd.
Contents
Foreword • Albie Sachs ....................................................................................... 7
Preface • Edwin Rekosh ...................................................................................... 9
Acknowledgments ............................................................................................... 11
Part One: Issues in Legal Aid
South African Legal Aid in Noncriminal Cases • David McQuoid-Mason ..................... 15
Legal Aid in England and Wales: Current Issues and Lessons • Roger Smith .................... 35
Reforming Primary Legal Aid in the Netherlands • Frans Ohm .................................... 47
Striving to Square the Circle: Quality Legal Aid in an Age of Shrinking Budgets
• Moshe Hacohen ........................................................................................ 53
Development of a Civil Legal Aid System: Issues for Consideration • Daniel S. Manning ...... 61
Beyond Lawyering: How Holistic Representation Makes for Good Policy, Better Lawyers,
and More Satisfied Clients • Robin G. Steinberg .................................................. 71
Part Two: Reforming Legal Aid in Central and Eastern Europe
Regional Overview • Nadejda Hriptievschi ........................................................ 83
Legal Aid Reform in Lithuania: A System in Transition • Linas Sesickas and
Paulius Koverovas ....................................................................................... 99
The Development of the Legal Aid System in Bulgaria • Martin Gramatikov ................. 115
The Role of the Nongovernmental Sector in Pursuing Reform of the
Legal Aid System: The Case of Poland • Łukasz Bojarski ....................................... 127
The Hungarian Legal Aid System • Márta Pardavi and András Kádár ...................... 139
Part Three: Empirical Research
Researching Legal Aid: Quality as a Case Study • Richard Moorhead ........................... 149
Study on Free Legal Aid in Criminal Cases in Bulgaria, 2004
• Martin Gramatikov .................................................................................. 163
Part Four: International and Regional Standards on Legal Aid
European Court of Human Rights Jurisprudence on the Right to Legal Aid
• Open Society Justice Initiative and the Public Interest Law Institute .................. 207
International Standards on Legal Aid: Relevant Texts and Summaries of Documents
• Open Society Justice Initiative and the Public Interest Law Institute .................. 229
Appendices
Selected English-Language Bibliography on Legal Aid
• Open Society Justice Initiative and the Public Interest Law Institute .................. 265
About the Authors ........................................................................................ 283
5

Foreword
T
he function of the law is to convert misfortune into injustice. I picked up this memo-
rable proposition from Martha Minow, who got it from her father. It bears repeating.
The function of the law is to convert misfortune into injustice. Such metamorphoses
are not self-realizing. They need eager people who dedicate their skills to the betterment of
human lives.
To demand that the dispossessed have access to the instruments of justice is like pushing
water uphill. It can be done, but it goes against gravity. To succeed, or even to survive in this
area, requires not only skill, persistence, and maneuverability, but a high degree of buoyancy
and vitality.
Fill a room with legal aid activists from all over the world, give them the opportunity to
exchange experiences, and what do you get? Sparkle. The kind of people attracted to legal aid
work tend to be lively, verbally active, and expressive to a degree. They have to be. They are up
against it. Legal systems historically have been created to regulate the affairs of the wealthy, and
to keep the poor in their place.
What else do you get in that crowded room? You get passion. Passion can glow, and
passion can burn. Promoters of legal aid are characterized by their passion; sometimes they
glow, and sometimes they are burned. They are idealists. Their motivation is not to become
rich or famous or powerful. It is to open wider the portals of justice. They give meaning to
their own lives by enabling other people to enjoy greater meaning in their lives. If the law as it
is practiced is unduly weighted towards one section of society and unacceptably exclusionary
towards another, it is inherently biased. For proponents of legal aid, the idea that people have
rights but are unable to enforce them is as bad as their not having the rights at all, in some ways
worse because it relies on false pretences. Justice must exist within justice!
It is the commonality of their passion for justice that unifies argumentative and erudite
legal aid practitioners throughout the world. The particular problems they face and the
solutions they pioneer might well be quite different from place to place—what are regarded as
scraps from the table in one situation, would be bountiful feasts in another. Yet in each country
there is an eagerness to push beyond whatever barriers are denying access to justice. The basic
problem is the same: to make the law more accessible to more people—and especially to ensure
that those most desperately in need can most benefit from what the law has to offer.
It is the poor, not the rich, who most need rights. The rich cannot easily be ignored. They
have money, power, and influence. They can usually settle their problems amongst themselves
and without recourse to law. They do not need rights in the way the poor do. The poor are as
frequently oppressed by law as they are freed by it. Even the growing international movement
for seeing basic human rights as universal entitlements leaves them far behind. They are
frequently unaware that they indeed do have rights, and even more in the dark as to how they
can enforce them.
7