A COMPARATIVE ANALYSIS ON THE RIGHTS OF THE

ACCUSED IN PAKISTAN AND THE UNITED KINGDOM

By
HUZAIFA AHMAD
Roll No 4775

Thesis submitted in partial fulfillment of

The requirements for the degree of

Bachelor of Laws
(LL.B)

DEPARTMENT OF COLLEGE OF LAW

GOVERNMENT COLLEGE UNIVERSITY, FAISALABAD

2024

1
 Abstract

in is1amic civi1izati0n, defendants are granted equa1 status and rights, but sad1y, in pakistan,
defendants are n0t given equa1 and 1egitimate rights. this study has 1ed t0 a greater
understanding 0f the rea1ity that under the is1amic state 0f pakistan, defendants are sti11
deprived 0f their basic and essentia1 rights. a maj0r c0ncern in this regard is the rights 0f the
accused under artic1e 10 a 0f the c0nstituti0n 0f pakistan. auth0rities everywhere vi01ated the
rights 0f the accused. the study c0vers hist0rica1 data 0f defendants in the pakistani subc0ntinent
and the united kingd0m. the effectiveness 0f the s01uti0ns is depending 0n the qua1ity 0f the
tests. in this regard, the r01e 0f c0urts, pr0secut0rs, att0rneys in the administrati0n 0f justice is
high1y significant, as we11 as a s0ciety that respects the ru1e 0f 1aw. every0ne has the right t0 a
fair tria1 in a11 instances. justice is n0t just a right, it is a set 0f rights. a free, independent,
capab1e, impartia1 judicia1 system is vita1 t0 guarantee the rights avai1ab1e t0 any defendant in
c0urt. this study 0pens way f0r tria1 t0 discuss the rights 0f the accused as stipu1ated by
internati0na1 1aw and 1ega1 systems 0f pakistan and the united kingd0m. the study 0ut1ines
justice and ass0ciated rights in 1ight 0f severa1 internati0na1 agreements. in additi0n, it ca11s
f0r any inadequacies in the 1ega1 systems 0f pakistan and the united kingd0m pertaining t0 the
rights 0f the accused t0 be rectified. t0 summarize the study, the0retica1 and c0mparative
techniques were uti1ised.

keyw0rds: accused rights, accused in pakistan, defendant in is1amic s0ciety, accused 1aws,
defendant in the united kingd0m.

2
chapter- 1
intr0ducti0n
the is1amic repub1ic 0f pakistan's c0nstituti0n, which was estab1ished in 1973, has a tenth
artic1e. a pers0n has the right t0 a fair tria1 and 1awfu1 pr0secuti0n in 0rder t0 determine his
civi1 rights and 0b1igati0ns, as we11 as t0 determine whether 0r n0t he is gui1ty 0f any
crimina1 accusati0ns. b0th the c0nstituti0n 0f pakistan and the c0nstituti0n 0f the united
kingd0m rec0gnise and uph01d the imp0rtance 0f pr0viding pr0tecti0n f0r the rights 0f th0se
wh0 have been accused 0f a crime. it is very 0bvi0us that is1am is a re1igi0n dedicated t0 the
defence and advancement 0f human rights because this is h0w is1amic 1ifesty1e is practised. it is
essentia1 t0 pr0vide 0ne an0ther respect, decency, equa1ity, and significance. the re1igi0n 0f
is1am even pr0c1aims that humans, d0mestic anima1s, and wi1d anima1s a11 have rights. the
accused are aff0rded a variety 0f fundamenta1 rights under the umbre11a 0f the is1amic system
0f crimina1 justice. under is1amic 1aw, the accused was assumed inn0cent un1ess their gui1t
c0u1d be estab1ished bey0nd a reas0nab1e d0ubt. in additi0n, the c0nvicted individua1s were
given a variety 0f pr0mises that the is1amic system 0f crimina1 justice w0u1d c0ntinue t0
pr0vide aid t0 them 0n a c0nsistent basis whi1e they were incarcerated and during the p0st-tria1
pr0ceedings. this 1ist 0f rights inc1udes the f0110wing items: 1) the right 0f every0ne t0 pr0tect
their freed0m and pr0perty; 2) the right t0 appr0priate pr0ceedings; 3) the right t0 a fair and
0pen tria1 bef0re a judge; 4) the c0nfr0ntati0n 0f defendants and witnesses and interr0gati0n
against them; 5) re1ease fr0m inv01untary gr0wth; 6) pr0tecti0n fr0m unjustified arrest and
detenti0n; 7) the right t0 appea1 a c0urt decisi0n; and 8) the right t0 appea1. the right 0f
every0ne t0 pr0tect their freed0m and pr0perty; if the situati0n d0es n0t ca11 f0r the ru1e 0f
1aw, is1amic crimina1 1aw ensures that the accused wi11 n0t be charged under the ru1e 0f 1aw
at a11, even if the situati0n ca11s f0r it. the c0urt is n0t a110wed t0 treat the accused unfair1y 0r
make him fee1 unc0mf0rtab1e whi1e they are investigating the acti0ns 0f the accused. in
pakistan, the rights 0f defendants have been c0nsistent1y infringed, and defendants have

3
enc0untered a number 0f cha11enges whi1e in the cust0dy 0f the p01ice, being detained by the
p01ice, and being investigated by the p01ice. th0se wh0 have been f0und gui1ty 0f breaking the
1aw in pakistan are subject t0 a distinct 1ega1 pr0cedure that is 0ut1ined in the c0untry's pena1
c0de. artic1es 68–74 0f the cpc pr0vide m0re in-depth inf0rmati0n 0n c0erci0n, which inc1udes
the abi1ity t0 have the accused br0ught bef0re the c0urt. the auth0rity that is de1egated t0 a
p01ice 0fficer is n0t unrestricted and unb0unded; rather, it is subject t0 a variety 0f c0nstraints
and b0undaries. measures 0f restraint were imp1emented s0 that the interests 0f c0nvicted
crimina1s might be pr0tected. in pakistan, the hea1th 0f crimina1 suspects is n0t pr0tected by the
g0vernment in any way that is c0nsidered appr0priate. the vast maj0rity 0f them deve10ped
cancer, aids, and hepatitis whi1e they were he1d captive. the supreme c0urt disc0vered a few
m0nths ag0 that there were a t0ta1 0f 80,145 c0up1es he1d in 98 different pris0ns acr0ss the
pr0vinces 0f punjab, sindh, the cpc, and ba10chistan. this is in c0mparis0n t0 the maximum
number 0f c0up1es that the c0untry is permitted t0 h01d, which is 56,495. it sh0u1d n0t c0me as
a surprise that this 1imit is set at f0rty percent given the high incidence 0f inmates suffering fr0m
many diseases at the same time. because the accused is treated as a fav0ured chi1d by the 1ega1
system, he is acc0rded certain rights, such as the f0110wing: 1) the right t0 bai1; 2) the right t0 a
fair tria1 in acc0rdance with 10 a; 3) the right t0 present evidence; 4) the right t0 1eave a
1awyer; 5) the right t0 pr0tecti0n; 6) the right t0 bec0me fami1iar with c0urt cases; 7) the right
t0 receive c0pies bef0re the tria1; 8) the right 0f redempti0n in the presence 0f 249a; and a
wr0ngd0ing that has been investigated by an impartia1 c0urt. at the very 1east 0n paper, every
1ega1 system ensures that th0se wh0 are accused are pr0tected in s0me 0f their m0st
fundamenta1 rights. jur0rs wi11 c0ntinue t0 have the right t0 be c0nvicted, at 1east in the case 0f
being c0nvicted 0f a significant crime, s0 10ng as they d0 n0t surrender their right t0 submit
witnesses and evidence that wi11 a110w them t0 defend their inn0cence and cha11enge
pr0secut0rs during the tria1. in the british c0nstituti0n, many c0mm0n rights are either
estab1ished 0r c0dified; neverthe1ess, 0n1y a se1ect few 0f these rights are 0fficia11y pr0tected.
the accused pers0n sh0u1d n0t be he1d in jai1 f0r an end1ess am0unt 0f time; rather, he sh0u1d
be tried and sentenced right away. these rights inc1ude the abi1ity t0 p0st bai1 in an am0unt that

4
is fair t0 the defendant as we11 as 1imitati0ns 0n indefinite, 10ng-term incarcerati0n with0ut
charge.
rights 0f the accused
y0ur 1ega1 entit1ement t0 cust0dy y0u are entit1ed t0 an exp1anati0n 0f y0ur rights fr0m the
p01ice 0fficer wh0 he1d y0u at the stati0n. y0u are entit1ed t0 the f0110wing: n0 charge f0r
1ega1 advice discuss y0ur rights, such as being a110wed t0 take frequent breaks f0r eating and
using the restr00m (y0u have the 0pti0n 0f requesting a message in y0ur native 1anguage), 0r an
interpreter wi11 exp1ain the rights t0 y0u. during the time that y0u are in p01ice cust0dy, y0u
wi11 be searched, and the 0fficer in charge 0f y0ur detenti0n wi11 keep y0ur pers0na1 things.
pe0p1e under the age 0f 18 and adu1ts wh0 are vu1nerab1e
if y0u are under the age 0f eighteen 0r an adu1t wh0 is particu1ar1y vu1nerab1e, the p01ice
sh0u1d c0ntact y0ur parents, guardians, 0r emp10yer t0 ask f0r assistance. additi0na11y, they
sh0u1d rep0rt themse1ves t0 the p01ice stati0n in 0rder t0 assist y0u in finding a "inn0cent
adu1t" t0 questi0n and check f0r evidence with. an adu1t wh0 w0rks in s0cia1 services, has
an0ther fami1y member 0r friend ab0ve the age 0f 18, 0r is a v01unteer 0ver the age 0f 18
c0u1d be c0nsidered an inn0cent adu1t. during the c0urse 0f the interr0gati0n, y0u are pr0tected
by a number 0f rights. it's p0ssib1e that a p01ice 0fficer wi11 appr0ach y0u and questi0n y0u
ab0ut the crime. y0u are under n0 0b1igati0n t0 pr0vide resp0nses t0 the questi0ns, but the
c0nc1usi0n must be reached in the event that y0u d0 n0t. as y0u read thr0ugh the p01ice rep0rt,
the 0fficers 0n duty sh0u1d wa1k y0u thr0ugh what they are 100king f0r and p0inting 0ut: "y0u
d0n't need t0 be questi0ned ab0ut anything, in my 0pini0n. 0n the 0ther hand, if y0u are unab1e
t0 v0ice y0ur 0pini0ns in c0urt, whatever acti0ns y0u take c0u1d be used as evidence against
y0u." a1th0ugh every defendant has a resp0nsibi1ity t0 stress the significance 0f their right t0
remain si1ent, s0me defendants may wish t0 discuss a p0rti0n 0f their experience. the pena1ty is
typica11y harsh and i11ega1, at 1east in cases where the defendant d0es n0t have access t0
1ega1 representati0n thr0ugh0ut the pr0ceeding that 1ed t0 the sentencing. t in a manner that is
c0nsistent with the auth0rity that wi11 be eva1uating the app1icati0n whi1e it is being
investigated 0r pr0secuted. any c1aim that evidence was n0t received must be backed up by
evidence. the right t0 free1y express 0ne's 0pini0n inc1udes the freed0m t0 dispute the activities
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0f judicia1 b0dies, 1aw enf0rcement agencies, and 0ther g0vernmenta1 instituti0ns, am0ng
0ther things. if the accused pers0n c0nsiders that his rights have been vi01ated, he sh0u1d be
pr0vided with a sufficient number 0f 0pp0rtunities t0 f0rma11y 10dge a c0mp1aint. if it is
determined that the 0ffence was n0t justified, then it is necessary t0 repair it in 1ine with the
1aw. the administrati0n 0f justice was s10wed d0wn as a resu1t 0f the pace 0f justice. this
expressi0n is appr0priate in a variety 0f 1ega1 pr0b1ems; n0nethe1ess, it is intricate1y
c0nnected t0 the 1arger 1ega1 pr0cedure as a wh01e. whi1e serving time behind bars, the
c0nvicted pers0n is sadd1ed with a significant am0unt 0f resp0nsibi1ity. any qua1ified 1ega1
representative can attest t0 the detrimenta1 effects that pr0tracted uncertainty has 0n c1ients 0ver
the c0urse 0f m0nths 0r years. the defendant is g0ing t0 10se his j0b, his marriage is g0ing t0
diss01ve, and his business is either g0ing t0 fai1 0r fi1e f0r bankruptcy as they wait f0r the
10ng-awaited tria1 t0 be d0ne. there are a 10t 0f pe0p1e 0ut there wh0 strugg1e with depressi0n
0r 0ne 0f the 0ther m00d dis0rders. in this instance, even the charge itse1f might be c0nsidered a
success. w0rst 0f a11, the findings are used by pr0secut0rs t0 neg0tiate a p1ea dea1 with the
defendant. they were aware that many pe0p1e w0u1d n0t be ab1e t0 survive the first few m0nths
0f detenti0n 0r that their businesses w0u1d n0t survive the 0ng0ing tria1s, s0 they t00k steps t0
prevent the use 0f "partner m0nit0ring" assets against them. this was d0ne in rec0gniti0n 0f the
fact that many pe0p1e w0u1d n0t be ab1e t0 survive the first few m0nths 0f detenti0n. in this
particu1ar instance, the defendant seems t0 be taking the 0pp0rtunity t0 enter a gui1ty p1ea in a
quick manner rather than being given the freed0m t0 se1ect. because engaging in such activities
can give the impressi0n 0f exerting pressure, the pr0secuti0n 0f pr0secut0rs 0ught t0 be carried
0ut in a manner that 1eaves n0 r00m f0r interpretati0n.
1.1 pr0b1em statement
the state is resp0nsib1e f0r ensuring that the pr0cess m0ves f0rward in a time1y manner and that
there are n0 unnecessary h01dups in the schedu1e. we are a11 in agreement that the imp0rtance
0f justice d0es n0t c0rresp0nd with the c0st 0f reducing efficiency, which requires sufficient
financia1 and human res0urces f0r the pr0per functi0ning 0f human rights 0rganisati0ns. this is
s0mething that we can a11 agree 0n. despite the fact that there are n0 h01dups in the shipment 0f

6
the g00ds, it is essentia1 t0 have adequate c0mpensati0n mechanisms in p1ace. pr0ceedings in a
crimina1 c0urt sh0u1d never be used as a substitute f0r 0ther types 0f punishment.
1.2 rati0na1e
it inc1udes a c0mprehensive review 0f the rights granted t0 defendants under the c0nstituti0n 0f
pakistan and the crimina1 justice system, as we11 as a the0retica1 and practica1 critica1
examinati0n 0f the sc0pe and app1icati0n 0f th0se rights, given the current circumstances under
the c0nstituti0n 0f the united kingd0m. the researcher's 0bjective is t0 c0nduct an in-depth
ana1ysis 0f the hist0ry 0f the accused in the subc0ntinent, with a specia1 f0cus 0n pakistan, as
we11 as the status 0f the accused in is1amic cu1ture and western th0ught, and the status 0f the
accused in terms 0f is1amic 1aw. 1egis1at0rs wi11 find this inf0rmati0n he1pfu1 as they pursue
measures t0 amend existing 1egis1ati0n.
1.3 research questi0ns
 if the rights are c0nstituti0na11y pr0tected, are they accused?
 h0w t0 s01ve the pr0b1em 0f space in pris0n?
 h0w t0 maintain the qua1ity 0f f00d and ensure their hea1th?
 can an accused be c0nvicted twice f0r the same crime?
 what are the rights 0f the accused bef0re the registrati0n 0f the fir?
1.4 0bjectives 0f study
 t0 determine the rights 0f accused in pakistan and uk.
 t0 identify the c0mparis0n am0ng b0th c0untries.
 t0 exp10re the ways and strategies b0th c0untries used f0r accused.

7
8
chapter- 2

review 0f 1iterature
giving pers0ns with 1ega1 kn0w1edge and inf0rmati0n in 0rder t0 increase the
number 0f 1ega1 0pti0ns avai1ab1e t0 them is 0ften c0nsidered t0 be the m0st imp0rtant
c0mp0nent 0f pr0viding 1ega1 assistance. “th0se wh0 are ec0n0mica11y disadvantaged
and s0cia11y margina1ised have a hard time c0mprehending their rights and putting them
int0 practise. expanding 0ne's 1ega1 0pti0ns is 0ne 0f the m0st essentia1 t001s that can be
used t0 assist with this. there is a significant p0tentia1 f0r w0men, members 0f indigen0us
tribes, and members 0f 0ther min0rity gr0ups t0 benefit significant1y.
the resu1ts 0f the survey made it abundant1y c1ear that the 1egis1ative pr0cess in
the jurisdicti0ns that were investigated was 0pen and transparent (with 78 percent 0f
resp0ndents agreeing 0r fu11y agreeing), and that the 1aw was accessib1e t0 the genera1
pub1ic. this was dem0nstrated by the fact that 100% 0f resp0ndents either agreed 0r fu11y
agreed with this statement (with 87 percent agreeing 0r fu11y agreeing). 0n the 0ther hand,
resp0ndents fr0m the c0untries 0f be1gium, singap0re, nigeria, pakistan, and ma1awi are
adamant1y 0pp0sed t0 the c0ncept 0f making the 1egis1ative pr0cess 0pen and transparent
in their respective jurisdicti0ns. these c0untries are: acc0rding t0 the 1egis1ati0n and
g0vernment data that were re1eased in the w0r1d justice pr0ject's ru1e 0f 1aw index (wjp
index) in 2015, the c1aims 0f the 1ast three c0untries are supp0rted by the fact that they are
ranked am0ng the 10west 15 nati0ns in the index. 0n the 0ther hand, be1gium and
singap0re d0 significant1y better (maximum 1.0 t0 0, respective1y), and 0.68 p0ints; this is
new zea1and's highest sc0re; 0.8).
a s1ight1y sma11er maj0rity 0f resp0ndents (68 percent) were in c0mp1ete
agreement that individua1s 0r gr0ups fr0m civi1 s0ciety had an essentia1 0pp0rtunity t0
express their views in the pr0cess 0f 1awmaking. this was viewed as an essentia1 part 0f
the dem0cratic pr0cess. n0tab1e aspects inc1ude resp0nses t0 surveys fr0m nigeria and
singap0re, despite the fact that b0th 0f these c0untries are p0siti0ned in the midd1e 0f the

9
wjp index f0r civic inv01vement. in 0ther w0rds, b0th 0f these c0untries have a high 1eve1
0f civic inv01vement.
c0ncerning the equa1ity 0f 1aws and the practica1 app1icati0n 0f th0se 1aws,
thirty-five 0ut 0f the f0rty-five resp0ndents either agreed 0r fu11y agreed that the 1aw d0es
n0t a110w 0fficia1 discriminati0n, and thirty 0f th0se individua1s c0nfirmed that the 1aws
in their respective jurisdicti0ns app1y and app1y equa11y t0 a11 pe0p1e. the resu1ts 0f this
survey can be br0ken d0wn int0 tw0 categ0ries: (1) the equa1ity 0f 1aws and (2) the
practica1 app1icati0n 0f 1aws. 0n the 0ther hand, the study disc0vered a number 0f
significant inc0nsistencies and drew attenti0n t0 a number 0f instances 0f discriminat0ry
1aws (resp0nses fr0m pakistan and singap0re) as we11 as instances 0f unequa1
app1icati0n 0f the 1aw. additi0na11y, the study high1ighted a number 0f instances 0f
unequa1 app1icati0n 0f the 1aw (resp0nses fr0m ma1awi, nigeria, pakistan and singap0re).
th0se 0f c010ur in the united states have a dispr0p0rti0nate1y higher risk 0f being
arrested and he1d in cust0dy f0r extended peri0ds 0f time c0mpared t0 pe0p1e 0f 0ther
races. in certain regi0ns 0f the united states, pe0p1e 0f c010ur make up eight 0ut 0f every
ten pe0p1e wh0 are incarcerated in the crimina1 justice system.
in c0untries where traditi0na1 1aws are app1ied in additi0n t0 m0dern 1aw, acts 0f
discriminati0n against w0men that are pr0hibited by m0dern 1aw may sti11 be permissib1e
under cust0mary 1aw. this is because cust0mary 1aw is based 0n 01der 1ega1 precedents.
these c0untries f0110w b0th c0ntemp0rary and ancient 1ega1 systems simu1tane0us1y.
s0me 0f these weaknesses have been br0ught t0 1ight within the sc0pe 0f internati0na1
human rights m0nit0ring pr0cedures such as the universa1 peri0dic review (upr), which
has 1ed t0 c0nstituti0na1 revisi0n as a resu1t 0f these mechanisms.”
artic1e 18 0f the c0nstituti0n 0f 1es0th0 c0ntains a pr0visi0n that makes it i11ega1
f0r 1aws t0 be discriminat0ry. h0wever, the c0nstituti0n d0es make an excepti0n f0r
circumstances in which cust0mary 1aw is app1ied.
in a manner n0t dissimi1ar t0 that described ab0ve, the c0nstituti0n 0f zambia
exempts cust0mary 1aw fr0m the c0nstituti0na1 requirements 0f equa1 treatment f0r

10
w0men. this is due t0 the fact that state c0urts 0perating under zambia's mixed jurisdicti0n
app1y cust0mary 1aw.
acc0rding t0 a recent survey pub1ished in the ec0n0mist, the 1ega1isati0n 0f gay
behavi0ur can be f0und in at 1east 113 c0untries ar0und the w0r1d. a1th0ugh 1aws that
0vert1y discriminate against pe0p1e wh0 identify as 1gbt are increasing1y rare,
discriminat0ry behavi0urs are n0nethe1ess practised in many different jurisdicti0ns,
particu1ar1y in wea1thy c0untries. singap0re is a significant excepti0n t0 this ru1e.
the crimina1 c0de 0f singap0re was 1ast revised in 2007, and 0ne 0f the
amendments that were made at that time was t0 rem0ve crimina1 1iabi1ity f0r
heter0sexua1 ana1 and 0ra1 sex. this was 0ne 0f the changes that were made. neverthe1ess,
the part 0f the 1aw that addresses seri0us wr0ngd0ing between ma1es wh0 have c0nsented
t0 the re1ati0nship is sti11 in effect. because 0f this, having h0m0sexua1 interc0urse with
an0ther ma1e can resu1t in a term 0f up t0 tw0 years in pris0n f0r each partner. in 0ct0ber
2014, the case was presented bef0re the supreme c0urt 0f singap0re f0r the first and 0n1y
time; n0nethe1ess, the c0urt uphe1d the pr0hibiti0n and dismissed any and a11 c1aims that
it was in vi01ati0n 0f the c0nstituti0n.
it is against the 1aw in jamaica t0 engage in sexua1 activity 0f the same sex with
an0ther adu1t ma1e wh0 0ffers their agreement if the 1egis1ati0n against s0d0my is
uphe1d. as a pena1ty f0r this 0ffence, the 0ffender faces a p0ssib1e maximum 0f ten years
in pris0n and a term 0f ten years 0f hard 1ab0ur. in 1864, the year that jamaica was
0fficia11y inc0rp0rated int0 the united kingd0m, these 1aws were passed 0n the is1and.
acc0rding t0 the sexua1 0ffenses act 0f 2009, which was enacted in 2009, men wh0 have
been c0nvicted 0f a crime are required t0 register as sexua1 0ffenders. in jamaica, having a
re1ati0nship with an0ther w0man 0f the same gender d0es n0t resu1t in the fi1ing 0f any
crimina1 charges against either individua1 inv01ved.
because ma1aysia has 1aws that discriminate against transgender pe0p1e, engaging
in activities such as cr0ss-dressing 0r "ma1e p0sing as w0men" is c0nsidered a crimina1
0ffence in ma1aysia. the putrajaya c0urt 0f appea1s reached the decisi0n in n0vember 2014
that the 1egis1ati0n in questi0n vi01ated a number 0f fundamenta1 rights, 0ne 0f which
11
was the right t0 freed0m 0f expressi0n. am0ng the 0ther fundamenta1 rights that were
vi01ated was the right t0 freed0m 0f expressi0n. neverthe1ess, the 1aws are carried 0ut in
fu11 f0rce thr0ugh0ut the remaining states and territ0ries that fa11 under the purview 0f
the federa1 g0vernment.
m0re than seventy-five percent 0f resp0ndents said that average citizens have either
a simp1e grasp (51 percent) 0r very 1itt1e c0mprehensi0n 0f the p0wers and tasks 0f
g0vernmenta1 instituti0ns that dea1 with the individua1 1ega1 rights and justice 0f the
genera1 p0pu1ati0n. this percentage is higher than the percentage that answered that
average citizens have n0 c0mprehensi0n 0f these p0wers and tasks. a1ternative1y they
might n0t have a g00d understanding 0f their 1ega1 rights within the c0ntext 0f the
crimina1 justice system (24 percent ). the resp0nses were fair1y simi1ar t0 0ne an0ther in
terms 0f the degree 0f grasp 0f the auth0rities and functi0ns 0f pub1ic 0fficia1s, p01ice,
and c0urts, as we11 as inf0rma1 justice instituti0ns and a1ternative dispute res01uti0n
a1ternatives.
“the findings 0f the survey indicate that 0ne 0f the characteristics that has a
particu1ar1y negative effect 0n the awareness 0f 1ega1 rights is a 10w 1eve1 0f 1iteracy
and 1anguage abi1ities. this is 0ne 0f the characteristics that was 1isted. the questi0ns and
the resp0nses t0 them sh0w that i11iteracy and 10w 1eve1s 0f educati0n have an effect 0n
defendants' and victims' awareness 0f their 1ega1 rights in genera1, and that inadequate
1anguage abi1ities undermine the 1ega1 c0nsci0usness 0f state1ess pers0ns. in additi0n,
the questi0ns sh0w that the resp0nses t0 them dem0nstrate that inadequate 1anguage
abi1ities undermine the 1ega1 c0nsci0usness 0f state1ess pers0ns. the 1atter suffers fr0m
0ther fact0rs, such as a 1ack 0f pub1ic res0urces and the wi11ingness t0 pr0vide them with
adequate 1ega1 inf0rmati0n, in additi0n t0 a 1ack 0f awareness 0f 1ega1 rights that are, in
fact, discriminat0ry. m0re0ver, there is a 1ack 0f awareness 0f 1ega1 rights that are
discriminat0ry. 0ther re1evant fact0rs are as f0110ws: as an i11ustrati0n, a resp0ndent
fr0m p01and stated that he was unaware 0f the 1ega1 rights 0f asy1um seekers and that the
situati0n was further exacerbated by a 1ack 0f funding and a de fact0 enc0uraging attitude
0n the part 0f the auth0rities. in additi0n, the resp0ndent fr0m p01and stated that he was
12
unaware 0f the 1ega1 rights 0f asy1um seekers. the resp0ndent fr0m p01and further
indicated that he was ign0rant 0f the 1ega1 rights that are granted t0 asy1um seekers.
the fai1ure 0f the g0vernment and 10ca1 c0mmunities t0 effective1y address s0cia1
issues is ref1ected in the 1ack 0f crimina1 pr0secuti0n and/0r the 0ut1awing 0f specific
f0rms 0f vi01ence. this fai1ure is a ref1ecti0n 0f the fai1ure 0f the g0vernment and 10ca1
c0mmunities t0 effective1y address s0cia1 issues. by making the behavi0ur in issue a
crime, a p0werfu1 message is sent that it sh0u1d n0t be d0ne since this sends the message
that it is unacceptab1e. 0n the 0ther hand, it's p0ssib1e that 0n1y app1ying crimina1 1aw
w0n't be en0ugh t0 fu11y hand1e the issue 0n its 0wn. in additi0n, the 1ack 0f 1egis1ati0n
may be c0nstrued as an unsp0ken appr0va1 0r t01erance 0f big0try, prejudice, and
impunity. this may be the case if the absence 0f 1egis1ati0n is taken seri0us1y. acti0ns 0f
vi01ence against w0men and acts 0f hatred against w0men are tw0 examp1es 0f specific
crimes that have been crimina1ised and made int0 examp1es 0f specific crimes.
assigning specific crimina1 1iabi1ity as a means 0f putting an end t0 the behavi0urs
in questi0n serves as an i11ustrative case study that dem0nstrates b0th the benefits and the
1imitati0ns 0f assigning specific crimina1 1iabi1ity in the c0ntext 0f vi01ence against
w0men, particu1ar1y that which 0ccurs in the h0me. the resu1ts 0f the survey sh0wed that
a sizeab1e pr0p0rti0n 0f jurisdicti0ns imp0se separate and m0re severe punishments f0r
acts 0f vi01ence against w0men (24 0ut 0f 39 resp0nses) and d0mestic vi01ence (21 0ut 0f
39 resp0nses), as we11 as a sizeab1e pr0p0rti0n 0f jurisdicti0ns in which these behavi0urs
are n0t punishab1e in is01ati0n fr0m 0ne an0ther. the findings 0f the survey were
c0mpi1ed int0 a rep0rt that was distributed t0 the jurisdicti0ns that participated in the
survey. crimes. a recent study that was carried 0ut by the w0r1d bank disc0vered that 127
0f the 173 nati0ns that were eva1uated have 1egis1ati0n pertaining t0 d0mestic abuse, 118
0f which have been put int0 p1ace since the year 1990. the maj0rity 0f these 1aws were
enacted after the year 1990. 0n the 0ther hand, the crimina1 justice system is 0n1y 0ne
piece 0f the puzz1e when it c0mes t0 finding a s01uti0n t0 the issue 0f d0mestic vi01ence.
b0th th0se wh0 engage in acts 0f d0mestic vi01ence and th0se wh0 are the victims 0f such
acti0ns require additi0na1 supp0rt ab0ve and bey0nd what is 0ffered by the crimina1
13
justice system. this can be seen in a variety 0f ways in the avai1ab1e mechanisms 0f
crimina1 and civi1 justice, as we11 as in s0cia1, medica1, and educati0na1 services that g0
bey0nd 1ega1 s01uti0ns. in additi0n, this can be seen in the fact that there are m0re pe0p1e
seeking 1ega1 s01uti0ns than ever bef0re.
the united kingd0m, which is c0mprised 0f three different jurisdicti0ns (eng1and
and wa1es, sc0t1and, and n0rthern ire1and), was recent1y assessed by the un specia1
rapp0rteur 0n vi01ence against w0men, wh0 f0und that the c0untry did a g00d j0b 0f
summarising the issues.
a crimina1 act is neither effective n0r sufficient if it d0es n0t take int0 acc0unt the
fundamenta1 causes 0f the vi01ence 0r if there is n0 structure t0 supp0rt the ru1e 0f 1aw.
b0th 0f these fact0rs are necessary f0r an effective and sufficient crimina1 act”.
the crimina1 c0de 0f kyrgyzstan was amended in 2012 t0 c1assify t0rture as a
fe10ny 0r a severe fe10ny. this change rem0ves any p0ssibi1ity 0f crimina1s escaping
punishment 0n the c0nditi0n that they make amends with the victim. 0n the 0ther hand,
p01ice enf0rcement agencies frequent1y engage in the practise 0f t0rture, and there is a
pervasive cu1ture 0f impunity. h0w is it that this is even p0ssib1e? the qu0ta system that
1aw enf0rcement 0fficia1s w0rk under pr0vides an exp1anati0n f0r this practise that has
been seen. they are graded and eva1uated based 0n the number 0f crimes that were
successfu11y identified, which enc0urages the use 0f t0rture f0r the purp0se 0f 0btaining
c0nfessi0ns. the 0rigin 0f the pr0b1em: t0rture in kyrgyzstan (0sf 2015).
“understanding h0w different cu1tura1 c0ntexts a110w f0r and perpetuate
discriminati0n and vi01ence against w0men requires addressing the issue 0f vi01ence
against w0men in cu1tura1 and re1igi0us c0ntexts. this is an essentia1 step t0ward this
understanding. 0n the 0ther hand, in 1ight 0f what the specia1 rapp0rteur has stated, it is
very essentia1 that any such investigati0n d0es n0t take p1ace in the c0ntext 0f a pr0cedure
that stigmatises particu1ar c0mmunities.
in p0int 0f fact, the representati0n 0f particu1ar gr0ups in the media as perpetrat0rs
0f particu1ar types 0f crimes may be indicative 0f a stigmatisati0n pr0cess that, in the end,
resu1ts in unequa1 app1icati0n 0f the 1aw. this is a pr0b1em because stigmatisati0n can
14
1ead t0 unequa1 app1icati0n 0f 1aws. the resu1ts 0f the p011 that are rep0rted in the media
typica11y inv01ve subjects 1ike h0micide, kidnapping, r0bbery, sexua1 0ffences, physica1
vi01ence, threats 0f vi01ence, hate crimes, and street crimes. [case in p0int:] (inc1uding
theft, pr0perty damage and antis0cia1 behavi0r).
the sec0nd area that raises significant c0ncerns ab0ut the 0vercrimina1izati0n 0f
behavi0ur is that 0f acts m0tivated by hatred. the term "hate crime" refers t0 a categ0ry 0f
vi01ent crimes in which the 0ffender targets the victim 0n the basis 0f the victim's
affi1iati0n t0 a particu1ar s0cia1 gr0up, such as the victim's ethnicity, gender, disabi1ity,
1anguage, nati0na1ity, appearance, 0r sexua1 0rientati0n. hate crimes can a1s0 be
m0tivated by the 0ffender's bias against a particu1ar gr0up 0f pe0p1e. crimes m0tivated by
hatred can a1s0 be defined as th0se that are perpetrated because 0f a pers0n's re1igi0us
be1iefs 0r sexua1 0rientati0n. acc0rding t0 the resp0nses, ten 0f the jurisdicti0ns, which is
ar0und f0rty percent, g0t particu1ar and m0re severe sancti0ns f0r hate crimes;
neverthe1ess, these pena1ties c0u1d n0t be separated d0wn int0 the categ0ries that were
emp10yed (race, etc.). p01itica1 debates and academic 1iterature 0n the subject high1ight
the breadth 0f pr0b1ems, the c0mp1exity 0f the issues, and the different 1ega1 appr0aches
t0 res01ving the crime 0f hatred.
0n the 0ne hand, the f0undati0n f0r the justificati0n 0f m0re harsh sancti0ns is
pr0vided by the idea that crimes m0tivated by hatred are m0re 1ike1y t0 0ccur. damage
d0ne t0 the individua1 as we11 as t0 s0ciety, inc1uding but n0t 1imited t0 assau1t 0n the
pers0n, degradati0n 0f the p0pu1ati0n, deprivati0n 0f humanity, and weakening 0f the
rights 0f 0ne set 0f individua1s within the p0pu1ati0n. 0n the 0ther hand, the deve10pment
0f exp1icit regu1ati0ns 0n the crimes 0f hatred has been criticised f0r being in direct
0pp0siti0n t0 the rights t0 freed0m 0f speech and t0 pers0na1 aut0n0my. this has 1ed t0
the c0ndemnati0n 0f the deve10pment 0f such regu1ati0ns.
acc0rding t0 studies c0nducted by the p01ice in eng1and and wa1es, 28.3 percent
0f w0men have been the victims 0f s0me s0rt 0f d0mestic abuse after the age 0f 16, and
8.5 percent 0f w0men have rep0rted having experienced it in the past year. the united
kingd0m is sti11 strugg1ing with a significant pr0b1em ass0ciated with d0mestic abuse. in
15
additi0n, when c0mpared t0 the average f0r the eur0pean uni0n, the united kingd0m has a
significant1y higher rate 0f b0th t0ta1 vi01ence and d0mestic vi01ence.
the issue 0f vi01ence against w0men is addressed in a number 0f 1ega1 d0cuments,
inc1uding the 1aw 0n equa1ity 0f 2010, the 1aw 0n crimes and victims 0f d0mestic
vi01ence 0f 2004, the 1aw 0n sexua1 0ffenses 0f 2003, the 1aw 0n p01ice and 1aw 0n
crime, the 2010 1aw 0n crime and security, the 1aw 0n f0rced marriage (civi1 pr0tecti0n)
act 0f 2007, the 1aw 0n injury t0 fema1e genita1s act 0f 2003, and the persecuti0n
pr0tecti0n act 0f 1997. these 1aws were enacted in an eff0rt t0 these 1aws are just few 0f
the many that exist. additi0na11y, the year 2002 marked the beginning 0f the
imp1ementati0n 0f 1egis1ati0n regarding immigrati0n and d0mestic abuse. as a resu1t 0f
the recent 0ut1awing 0f f0rced marriages, which is a p0tentia11y harmfu1 practise, new
charges have just been added t0 the 1ist 0f p0ssib1e punishments. nati0na1 statistics 0ffice
0f the united kingd0m, 2013–2014; rep0rt 0f the specia1 rapp0rteur 0n vi01ence against
w0men, 2015; agency f0r basic rights 1aw 0n anti-s0cia1 behavi0r, crime, and p01ice act
0f 2014 is the s0urce 0f this inf0rmati0n (2014).”
“as a direct resu1t 0f the ec0n0mic crisis as we11 as the increased immigrati0n
f10ws that have f0110wed the armed c0nf1icts that have taken p1ace in africa and the
midd1e east, a surge 0f vi01ence has been directed t0ward asy1um seekers, immigrants,
and ethnic min0rities in severa1 eur0pean c0untries. this has 1ed t0 an increase in the
number 0f pe0p1e wh0 have been injured 0r ki11ed. h0wever, due t0 the presence 0f
agreements in a certain number 0f eu member states, it is imp0ssib1e t0 c011ect
meaningfu1 data regarding acts 0f racia1 vi01ence. this is the case because 0f the eu's 0pen
data p01icy.
in additi0n t0 the united kingd0m, the existence 0f 0ther eu c0untries such as
fin1and, the nether1ands, and sweden is a p0sitive e1ement f0r the entry p1acement 0f
c0mp1ete systems. 0ther member states 0n1y have 1imited rec0rding pr0cesses, whereas
ten 0ther member states, inc1uding austria, be1gium, the czech repub1ic, denmark, france,
germany, 1ithuania, p01and, and s10vakia, have effective data c011ecti0n mechanisms.

16
0ther member states 0n1y have 1imited rec0rding pr0cesses. s10vakia and spain are a1s0
member states 0f the eur0pean uni0n.
access t0 free 1ega1 advice, assistance, and representati0n f0r an unfav0urab1e
accused pers0n at vari0us stages 0f the crimina1 pr0cess (arrested, c0nvicted, 0r detained)
is a prerequisite f0r the exercise 0f 0ther rights and a key e1ement 0f a functi0ning, fair,
and trusted 0ffender system. this inc1udes access t0 1ega1 advice, assistance, and
representati0n fr0m an att0rney. this right is app1icab1e thr0ugh0ut the entirety 0f the
judicia1 pr0cedure. the preeminence 0f prevai1ing 1ega1 standards. it is p0ssib1e f0r the
current system 0f 1ega1 aid t0 sh0rten the am0unt 0f time suspects are he1d in p01ice
stati0ns and pre-tria1 detenti0n faci1ities, a11eviate 0vercr0wding, and reduce the am0unt
0f c0ngesti0n in the c0urt system. as a resu1t, the 1ike1ih00d that the suspect wi11 engage
in crimina1 behavi0ur 0nce m0re wi11 be reduced.
the findings 0f the survey revea1ed that y0u are c0rrect, m0st imp0rtant1y with
regard t0 the pr0visi0n 0f 1ega1 assistance in the jurisdicti0ns that are g0verned by the
c0nstituti0n, which is a1s0 referred t0 as 1aw. this is in 1ine with 0ne 0f the princip1es
uphe1d by the united nati0ns, which is referred t0 as access t0 1ega1 aid: "the right t0
1ega1 assistance in cases pertaining t0 a state's d0mestic 1aw, inc1uding matters pertaining
t0 the c0nstituti0n, must be guaranteed by the state." the resu1ts 0f the p011 indicate that
defendants and/0r pers0ns, even in the event that they have financia1 c0nstraints, are ab1e
t0 c0nvenient1y access 1ega1 c0unse1”.
pe0p1e wh0 have been c0nvicted 0f a crime that is punishab1e by impris0nment 0r
the death pena1ty (if necessary), but wh0 were typica11y detained by the p01ice, arrested,
0r impris0ned f0r 0ther reas0ns, have a significant1y m0re difficu1t time gaining access.
this is because pe0p1e wh0 have been c0nvicted 0f a crime that is punishab1e by
impris0nment 0r the death pena1ty (if necessary) have a significant1y m0re difficu1t time
gaining access. 0n the 0ther hand, the resp0nses gave the impressi0n that the c0urt has the
auth0rity t0 decide whether 0r n0t t0 pr0vide free 1ega1 assistance in acc0rdance with the
access t0 1ega1 aid standards set by the united nati0ns (even).

17
 if it is in the best interests 0f justice t0 d0 s0 due t0 the gravity 0f the situati0n, the
immediacy 0f the situati0n, 0r the c0mp1exity 0f the matter, then the ec0n0mic 1imit is
n0t adhered t0.
the united nati0ns charter 1ays a significant am0unt 0f stress 0n the resp0nsibi1ity
0f states t0 ensure the existence 0f c0mprehensive 1ega1 assistance systems and t0 ensure
that these systems are accessib1e, efficient, sustainab1e, and re1iab1e. they are necessary
f0r the p1an t0 g0 int0 effect.
in the case number 1542 0f sa1duz versus turkey, which was heard by the eur0pean
c0urt 0f human rights in 2008, the c0urt determined that pe0p1e wh0 are detained in
p01ice stati0ns have the c0nstituti0na1 right t0 c0nfer with an att0rney. when a pers0n
refuses t0 acquire 1ega1 representati0n thr0ugh0ut the c0urse 0f p01ice interr0gati0n, this
c0nstitutes a vi01ati0n 0f the fundamenta1 right t0 a fair tria1.”
in 1ight 0f this ru1ing and in acc0rdance with the case 1aw 0f the ccp, a number 0f
eur0pean nati0ns, such as france, the nether1ands, sc0t1and, and be1gium, have revised
their 0wn judicia1 systems in 0rder t0 bring them int0 c0nf0rmity with the judgement. this
was d0ne in 0rder t0 bring these nati0ns' judicia1 systems int0 1ine with the case 1aw 0f
the ccp.
s0me 0f the vari0us m0de1s 0f 1ega1 aid that are uti1ised in vari0us jurisdicti0ns
inc1ude pub1ic defenders, private att0rneys, c0ntract att0rneys, pr0-b0n0 schemes, bar
ass0ciati0ns, and bar ass0ciati0ns. 0ther m0de1s inc1ude pub1ic defenders, private
att0rneys, c0ntract att0rneys, and pr0-b0n0 schemes. 0ther m0de1s c0nsist 0f att0rneys
wh0 hand1e c0ntracts.
a1th0ugh 1awyers are the primary pr0viders 0f 1ega1 aid, de1ivery schemes are
frequent1y diversified, and a wide variety 0f stakeh01ders seek t0 c0mp1ement the eff0rts
0f the g0vernment under vari0us schemes even th0ugh they 1ack the res0urces,
capabi1ities, 0r wi11 t0 pr0vide effective 1ega1 assistance. a1th0ugh 1awyers are the
primary pr0viders 0f 1ega1 aid, de1ivery schemes are frequent1y diversified.
in additi0n t0 the pr0visi0n 0f 1ega1 advice, the examinati0n 0f the effectiveness 0f
practise wi11 c0nstitute the primary f0cus 0f attenti0n.
18
 in spite 0f the fact that the 1aw guarantees the right t0 1ega1 representati0n, the
accused d0 n0t have access t0 inf0rmati0n ab0ut the avai1abi1ity 0f such representati0n in
a manner that is either f0rma11y d0cumented, written, 0r 0therwise suitab1e t0 their
requirements. this is a tr0ub1ing issue that was br0ught t0 1ight by the questi0nnaires. this
direct1y c0ntributes t0 the fact that there is n0 actua1 access t0 1ega1 aid in any kind.
due t0 the c0nsiderab1e am0unt 0f diversity that 0ccurs between nati0na1 budgets
f0r 1ega1 aid, it is extreme1y cha11enging t0 estimate the c0sts ass0ciated with pr0viding
1ega1 assistance 0n a per capita 0r per capita basis. s0me 0f the fact0rs that c0u1d exp1ain
the differences inc1ude variati0ns in the accessibi1ity and re1iabi1ity 0f 1ega1 aid, the
types 0f 1ega1 services that are 0ffered, the pr0cedura1 differences that exist between the
vari0us types 0f justice systems (such as inquisit0r versus dispute), and the frequency with
which individua1s make use 0f a1ternative f0rms 0f c0nf1ict res01uti0n (adr).
“denmark, fin1and, ice1and, ire1and, ire1and, the nether1ands, n0rway, sweden,
switzer1and, and the united kingd0m are the c0untries that are members 0f the c0unci1 0f
eur0pe (c0e) that have the highest 1ega1 aid spending per pers0n (11 t0 53 eur0s per
capita). certain nati0ns in s0uthern eur0pe, such as greece, ma1ta, and spain, as we11 as
0ther nati0ns in centra1 and eastern eur0pe, such as a1bania, cr0atia, azerbaijan, and
azerbaijan, wh0 did n0t have such systems bef0re t0 entering the eu, have quite a 10w
degree 0f supp0rt f0r the initiative (1ess than 1 eur0 per capita). hungary, the nati0ns that
were 0rigina11y a part 0f yug0s1avia, the repub1ic 0f maced0nia, ge0rgia, the s10vakia,
the repub1ic 0f m01d0va, r0mania, 1atvia, p01and, and bu1garia) are the members 0f the
eur0pean uni0n.
the eur0pean c0mmissi0n f0r the efficiency 0f justice was the s0urce 0f the
materia1 that was used t0 c0mpi1e this artic1e (2014).
acc0rding t0 the united nati0ns 0ffice 0n drugs and crime (un0dc), there are five
distinct types 0f 1ega11y re1ated m0de1s that may be f0und thr0ugh0ut africa:
pub1ic defenders are att0rneys wh0 are emp10yed by the state and c0mpensated by
it in 0rder t0 fu1fi1 the aim 0f pr0viding 1ega1 assistance.”

19
 the judicia1 pr0cess c0nsists 0f private att0rneys neg0tiating and entering int0
agreements with the g0vernment 0n beha1f 0f accused parties in exchange f0r a fee that
has been previ0us1y determined. these agreements a110w the parties' interests t0 be
pr0tected.
thr0ugh the use 0f c0ntracts, the g0vernment wi11 engage in price neg0tiati0ns f0r
1ega1 services that wi11 be given by an individua1 att0rney, a gr0up 0f att0rneys, 0r a
n0n-g0vernmenta1 0rganisati0n.
individua1s with m0dest inc0mes can 0btain guidance and assistance in a variety 0f
1ega1 c0ncerns fr0m a wide range 0f private service pr0viders in additi0n t0 the pub1ic
1ega1 services that are avai1ab1e t0 them.
by uti1ising c0mbinati0n de1ivery, the state carries 0ut a number 0f different
service de1ivery m0de1s than it w0u1d 0therwise.
the 1ega1 aid systems in africa rep0rt pub1ished by pasi is the 0rigin 0f this
inf0rmati0n (un0dc 2011).
it is a c0mm0n practise in western c0untries t0 enter int0 c0ntracts with private
1ega1 aid pr0viders in 0rder t0 supp1ement the pr0visi0n 0f nati0na1 1ega1 aid services.
this is d0ne in 0rder t0 ensure that individua1s have access t0 adequate 1ega1
representati0n. this cust0m is bec0ming increasing1y widespread acr0ss africa.
acc0rding t0 the w0r1d justice pr0ject's ru1e 0f 1aw index 2013/2014, the 1ack 0f
1awyers avai1ab1e t0 pr0tect p00r c1ients is 0ne 0f the m0st difficu1t issues in the
deve10pment 0f the 0fficia1 justice system in ma1awi. this is 0ne 0f the m0st difficu1t
issues in the deve10pment 0f the 0fficia1 justice system in ma1awi. this is 0ne 0f the m0st
cha11enging pr0b1ems that has arisen during the pr0cess 0f estab1ishing an 0fficia1 1ega1
system in ma1awi.
acc0rding t0 the pr0visi0ns 0f the 1ega1 aid act 0f 2010, which was enacted in
ma1awi in the same year, the department 0f 1ega1 aid in ma1awi, which is current1y a
divisi0n 0f the ministry 0f justice, is schedu1ed t0 be c0nverted int0 an independent 1ega1
aid bureau. this is in acc0rdance with the fact that the 1ega1 aid act 0f 2010 was passed in
ma1awi in the same year. a1th0ugh the bureau has been strugg1ing with a 1ack 0f
20
res0urces ever since it 0n1y began 0perating in 2015, it is current1y in the pr0cess 0f
c011ab0rating with vari0us stakeh01ders in an eff0rt t0 increase accessibi1ity t0 the 1ega1
system. this is being d0ne in an eff0rt t0 increase accessibi1ity t0 the 1ega1 system. this
inc1udes c011ab0rating with the irish ru1e 0f 1aw pr0gram t0 impr0ve c0mmunity
representati0n in crimina1 pr0ceedings and t0 further educate c0mmunity members ab0ut
crimina1 1aw by 0rganising c0mmunity meetings. these g0a1s wi11 be acc0mp1ished by
impr0ving c0mmunity representati0n in crimina1 pr0ceedings. in additi0n, the ministry 0f
justice has made an agreement with 10ca1 att0rneys t0 c011ab0rate 0n the de1ivery 0f
1ega1 assistance in p01ice stati0ns, c0urtr00ms, and detenti0n faci1ities s0 as t0 better
serve the pub1ic.
“in additi0n, a n0n-pr0fit 0rganisati0n in ma1awi kn0wn as citizens f0r justice (cfj)
is in the pr0cess 0f putting a pr0ject int0 acti0n that wi11 inv01ve camp tria1s. the
0bjective 0f this pr0ject is t0 pr0vide pre-tria1 inmates with access t0 justice, and the
pr0ject is current1y in the imp1ementati0n phase. the acc0mp1ishment 0f this g0a1 is
c0ntingent 0n the c00perati0n 0f a number 0f significant 0rganisati0ns, the m0st imp0rtant
0f which are the ass0ciati0n 0f w0men judges 0f ma1awi (w0jam), the ma1awi judicia1
system, the institute 0f para11e1 c0unse1ing services (pasi), the ma1awi p01ice service, the
ma1awi pris0n service, and the ass0ciati0n 0f w0men 1awyers (w1a). the fact that the tria1
is being he1d in a camp means that it wi11 c0ntinue as schedu1ed even if neither the
pub1ic n0r the witnesses are present. the participants in the tria1 wi11 inc1ude the judge,
the c1erk, the pub1ic servant, the pr0secut0r, the 1awyer, and the accused pers0n.
f0r instance, a resp0ndent fr0m ma1awi stated that a pers0n wh0 had been
sentenced t0 death was n0t a110wed t0 meet with the app0inted 1awyer pri0r t0 the
beginning 0f the tria1. this was menti0ned by the resp0ndent. even whi1e the 1aw dictates
that p01ice must te11 suspects 0f their right t0 1ega1 representati0n, acc0rding t0 0ne
resp0ndent fr0m ghana, in practise, this is n0t a1ways d0ne even th0ugh the 1aw requires it
t0 be d0ne. even th0ugh the materia1 is presented in written f0rm as part 0f the f0rma1
pr0cess, it is p0ssib1e that it wi11 n0t be effective because (acc0rding t0 the resp0ndent
fr0m 1es0th0) the maj0rity 0f the accused d0 n0t have 1iteracy ski11s. even th0ugh the
21
materia1 is presented in written f0rm as part 0f the f0rma1 pr0cess. studies that were
carried 0ut in vari0us nati0ns came t0 the c0nc1usi0n that there is a c0nnecti0n between
antis0cia1 behavi0ur and the difficu1ties 0f receiving an educati0n. acc0rding t0 the
findings 0f these research, i11iteracy 1imits the am0unt 0f 0pti0ns avai1ab1e t0 an
individua1 thr0ugh0ut their 1ifetime, inc1uding w0rk pr0spects, and is thus 1inked t0 an
increased chance 0f engaging in crimina1 acti0n. the resu1ts 0f a study that was carried 0ut
in irish jai1s in the year 2003 indicated a substantia1 ass0ciati0n between 10w 1eve1s 0f
1iteracy with specific types 0f crime, but n0t with 0thers. 1iteracy issues were sh0wn t0 be
m0re preva1ent am0ng 0ffenders wh0 c0mmitted vi01ent and pr0perty crimes, but
1iteracy 1eve1s were f0und t0 be greater am0ng 0ffenders wh0 c0mmitted sexua1
0ffences.
the pr0visi0n 0f 1ega1 assistance was rep0rted t0 be frequent1y de1ayed by
resp0ndents fr0m canada, the united kingd0m (eng1and and wa1es), ghana, japan, 1es0th0,
1atvia, ma1awi, pakistan, singap0re, uganda, and the united states 0f america. resp0ndents
fr0m ghana, japan, 1es0th0, 1atvia, ma1awi, and uganda a1s0 rep0rted this. acc0rding t0
the c0mments that were 0btained fr0m canada, ma1awi, and pakistan, they frequent1y
denied t0 accept 1ega1 aid.”
the findings 0f the study a1s0 revea1ed that the fact0rs have a detrimenta1 effect 0n
particu1ar capabi1ities that a gr0up 0f a11eged 0ffenders p0ssess in 0rder t0 be 1ega11y
0btained. this was sh0wn t0 be the case by the researchers.
state1ess individua1s, members 0f min0rity gr0ups, and/0r indigen0us pe0p1es
make up the vast bu1k 0f th0se wh0se 1ives are a1tered as a resu1t 0f this event. pe0p1e
wh0 1ive in rura1 areas are m0re 1ike1y t0 be affected by the uneven distributi0n 0f 1ega1
services, and regu1ati0ns that are discriminat0ry can make it m0re difficu1t f0r certain
gr0ups, especia11y w0men, t0 receive 1ega1 assistance. this is especia11y the case in
circumstances in which there is an imba1ance in the ge0graphica1 distributi0n 0f 1ega1
services. acc0rding t0 the resu1ts 0f the p011, it is sti11 p0ssib1e t0 gain access t0 standard
f0rms 0f free 1ega1 advice, assistance, and representati0n.

22
 it is a1s0 essentia1 t0 n0te that in cases inv01ving d0mestic vi01ence, defendants
wh0 are members 0f particu1ar indigen0us pe0p1es may require assistance, such as
cu1tura1 0r 1inguistic supp0rt. h0wever, specia1 services may n0t be ab1e t0 assist the
victim because 0f the p0ssibi1ity 0f a c0nf1ict 0f interest 0n the part 0f the service. it is
imp0rtant t0 n0te that this circumstance. it is p0ssib1e that this wi11 1eave a very
substantia1 gap in the essentia1 and appr0priate maintenance.
in the year 2003, the 0pen s0ciety justice initiative 1aunched a pi10t pr0ject f0r
pub1ic defenders in bu1garia with the intenti0n 0f rea1ising the g0a1s 0f exce11ence and
equa1ity in 1ega1 representati0n thr0ugh0ut the nati0n 0f bu1garia.
bef0re the beginning 0f this initiative, the resp0nsibi1ity 0f hand1ing cases
requiring 1ega1 aid was c0mm0n1y de1egated t0 att0rneys wh0 had n0 pri0r experience
w0rking in the fie1d 0f pr0viding active crimina1 defence representati0n. in 0rder t0
impr0ve the qua1ity and quantity 0f written papers, as we11 as the genera1 1eve1 0f
representati0n f0r pe0p1e with m0dest inc0mes, a pr0gramme 0f trainings and seminars
f0r 1awyers was made avai1ab1e. the pr0ject a1s0 aims t0 deve10p case management
standards by rec0rding inf0rmati0n 0n current activities and estab1ishing a system f0r
eva1uating the perf0rmance 0f 1awyers and cases. this wi11 be acc0mp1ished by
estab1ishing a system f0r eva1uating the perf0rmance 0f 1awyers and cases. in 0rder t0
reach this g0a1, a system f0r eva1uating the success 0f b0th cases and att0rneys wi11 need
t0 be estab1ished.
it was de1iberate that the w0rkf0rce be c0mprised 0f re1ative1y inexperienced
1awyers since it was h0ped that they wi11 be m0re 0pen t0 change and wi11 have a better
understanding 0f h0w t0 use c0mputers.
this materia1 c0mes fr0m kranev's artic1e "unsatisfied needs: 1ega1 assistance in
bu1garia," which may be f0und here (2004).
the ethnic uzbeks 0f tajikistan make up the 1argest min0rity in the c0untry,
acc0unting f0r appr0ximate1y 15 percent 0f the t0ta1 p0pu1ati0n. despite this, ethnic
uzbeks are frequent1y disregarded and subjected t0 discriminati0n. a11 residents are
required t0 speak tajik in acc0rdance with the 1aw 0n the state 1anguage that was appr0ved
23
in 2009, which imp1ies that if they d0 n0t kn0w tajik, they c0u1d be pena1ised f0r their
1ack 0f kn0w1edge 0f the 1anguage.
in p0int 0f fact, the maj0rity 0f pe0p1e wh0 are affected by this are uzbek
min0rities, and uzbek w0men in particu1ar. app1icati0ns submitted by citizens written in
russian, t0gether with d0cuments written in kyrgyz and uzbek, are frequent1y rejected by
the 10ca1 c0urts. as a c0nsequence 0f this, it is m0re difficu1t f0r uzbek w0men t0 receive
1ega1 assistance than it is f0r uzbek men. this is due t0 the fact that w0men are 1ess 1ike1y
t0 speak tajik 0r russian than men are.
“it is necessary f0r disadvantaged suspects and accused individua1s t0 have access
t0 c0mpetent crimina1 1ega1 assistance in 0rder f0r them t0 be tried in a manner that is
fair. this is required by the right t0 a fair tria1. h0wever, the impact 0f effective 1ega1 aid
wi11 be maximised if it is ensured within a system 0f re1iab1e instituti0ns 0f justice that
0perate 0n the princip1es 0f the ru1e 0f 1aw and respect them. this wi11 a110w the impact
t0 have the greatest p0ssib1e p0sitive effect. this wi11 make it feasib1e t0 have the m0st
significant inf1uence imaginab1e. a system 1ike this 0ne inc1udes, am0ng 0ther things,
1ega1 guarantees 0f the independence 0f the judicia1 system, transparency in the
app0intment 0f judges, the appr0priate 1eve1 0f qua1ificati0n 0f judges at a11 1eve1s,
inc1uding the 10wer c0urts, the absence 0f c0rrupti0n and the avai1abi1ity 0f effective
mechanisms t0 c0mbat c0rrupti0n in the judiciary and g0vernment agencies, and the
appr0priate 1eve1 0f qua1ificati0n 0f judges at a11 1eve1s, inc1uding the 10wer c0urts. a
system 1ike this 0ne inc1udes, am0ng 0ther things, 1ega1 guarantees 0f the independence
0f the judicia1 system, transparency in the app0intment 0f judges, it is essentia1 f0r the
deve10pment 0f high-qua1ity 1ega1 aid services t0 have faith in a11 aspects 0f the justice
system that are inv01ved in the administrati0n 0f crimina1 justice (name1y, the p01ice, the
c0urts, and the administrati0n 0f justice), in additi0n t0 having a judiciary that is free fr0m
p01itica1 inf1uence.
in the case that there is a sh0rtage 0f trained att0rneys wh0 are ab1e t0 give 1ega1
aid, the re1evant c0ntr01 and accreditati0n systems must t0 be put int0 p1ace. judges 0ught
t0 take part in these pr0cedures in s0me capacity.
24
 “it is necessary f0r disadvantaged suspects and accused individua1s t0 have access
t0 c0mpetent crimina1 1ega1 assistance in 0rder f0r them t0 be tried in a manner that is
fair. this is required by the right t0 a fair tria1. h0wever, the impact 0f effective 1ega1 aid
wi11 be maximised if it is ensured within a system 0f re1iab1e instituti0ns 0f justice that
0perate 0n the princip1es 0f the ru1e 0f 1aw and respect them. this wi11 a110w the impact
t0 have the greatest p0ssib1e p0sitive effect. this wi11 make it feasib1e t0 have the m0st
significant inf1uence imaginab1e. a system 1ike this 0ne inc1udes, am0ng 0ther things,
1ega1 guarantees 0f the independence 0f the judicia1 system, transparency in the
app0intment 0f judges, the appr0priate 1eve1 0f qua1ificati0n 0f judges at a11 1eve1s,
inc1uding the 10wer c0urts, the absence 0f c0rrupti0n and the avai1abi1ity 0f effective
mechanisms t0 c0mbat c0rrupti0n in the judiciary and g0vernment agencies, and the
appr0priate 1eve1 0f qua1ificati0n 0f judges at a11 1eve1s, inc1uding the 10wer c0urts. a
system 1ike this 0ne inc1udes, am0ng 0ther things, 1ega1 guarantees 0f the independence
0f the judicia1 system, transparency in the app0intment 0f judges, it is essentia1 f0r the
deve10pment 0f high-qua1ity 1ega1 aid services t0 have faith in a11 aspects 0f the justice
system that are inv01ved in the administrati0n 0f crimina1 justice (name1y, the p01ice, the
c0urts, and the administrati0n 0f justice), in additi0n t0 having a judiciary that is free fr0m
p01itica1 inf1uence.
in the case that there is a sh0rtage 0f trained att0rneys wh0 are ab1e t0 give 1ega1
aid, the re1evant c0ntr01 and accreditati0n systems must t0 be put int0 p1ace. judges 0ught
t0 take part in these pr0cedures in s0me capacity.
the success 0f eff0rts t0 guarantee that 1ega1 aid is 0f a high standard in s0uth
africa has been attributed t0 the estab1ishment 0f a qua1ity assurance unit within the
ministry 0f justice that is c0mprised 0f seas0ned att0rneys as we11 as the c10se
inv01vement 0f the judicia1 system in the pr0cess 0f qua1ity c0ntr01 0f 1ega1 aid. b0th 0f
these fact0rs have c0ntributed t0 the success 0f the eff0rts”.
this p0st 0rigina11y drew its inspirati0n fr0m the un ru1e 0f 1aw pub1icati0n tit1ed
"increasing access t0 1ega1 aid in crimina1 justice systems" (2014).

25
 there is a substantia1 re1ati0nship that exists between the pr0visi0n 0f 1ega1
assistance, access t0 justice, and the safety 0f individua1s. 0n1y thr0ugh the rest0rati0n 0f
the ru1e 0f 1aw and the bui1ding 0f trust in the instituti0ns 0f the 1ega1 system wi11 it be
p0ssib1e t0 create b0th stabi1ity and a peace that wi11 1ast.
the fragi1ity 0f sierra 1e0ne's judicia1 system has been exp0sed even further by the
g0vernment's pr0c1amati0n 0f a state 0f emergency in resp0nse t0 the eb01a epidemic,
which has a1s0 rendered the c0urts m0re susceptib1e t0 0utside inf1uence and reduced
their 0vera11 efficiency. since august 0f 2014, the suspensi0n 0f c0urt hearings and
pr0ceedings has 1ed t0 an increase in the back10g 0f cases, which in turn has 1ed t0 an
increase in the number 0f cases inv01ving incarcerati0n and pre-tria1 cust0dy. this
situati0n has resu1ted in an increase in the number 0f cases inv01ving incarcerati0n and
pre-tria1 cust0dy. 1ega1 supp0rt, which was pred0minant1y pr0vided by civi1 s0ciety
0rganisati0ns, has witnessed a significant decrease as a direct resu1t 0f the attenti0n that
has been p1aced 0n putting an end t0 the virus and assisting c0mmunities that have been
impacted by it.
it is essentia1 t0 b0th the av0idance 0f future c0nf1icts and the upkeep 0f peace that
the administrati0n 0f justice be kept in a stab1e state whi1e a1s0 being impr0ved 0ver the
10ng run. this is because keeping the peace is essentia1 t0 the preventi0n 0f future
c0nf1icts. the g0a1 0f the 18-m0nth undp pr0ject, which a1s0 inc1udes unicef and the uk
department f0r internati0na1 deve10pment, is t0 revita1ise sierra 1e0ne's justice sect0r by
pr0viding supp0rt f0r the f0110wing initiatives: the revita1izati0n 0f m0bi1e c0urts; the
reducti0n 0f de1ays in c0nsiderati0n 0f cases 0f restraint; the imp1ementati0n 0f the 1aw
"0n 1ega1 assistance" thr0ugh the deve10pment 0f ru1es f0r the pr0visi0n 0f 1ega1
assistance and strengthening c00perati0n with 1ega1 aid 0rganisati0ns in sierra 1e0ne; and
the reducti0n 0f de1ays in c0nsiderati0n 0f cases 0f restraint. a rep0rt c0mpi1ed by the
united nati0ns deve10pment pr0gramme c0ncerning eb01a rec0very in sierra 1e0ne
(2015).
acc0rding t0 the c0nc1usi0ns 0f the rep0rt that was pr0duced in the same year as
the study that was carried 0ut by the iab in 2014, the resu1ts 0f the study that was carried
26
0ut in 2014 revea1ed that crimina1 pr0ceedings in c0untries are n0rma11y fair. the
0verwhe1ming maj0rity 0f resp0ndents stated that it was p0ssib1e t0 acquit a defendant in
a crimina1 pr0cess if there was insufficient evidence 0r if there were vi01ati0ns 0f the
pr0cedures. this was a c0mm0n be1ief am0ng resp0ndents. the resp0ndents a1s0 indicated
that there is n0rma11y an impartia1 grievance mechanism that dea1s with c0mp1aints that
are n0t hand1ed satisfact0ri1y thr0ugh the use 0f judicia1 pr0cesses.
“in n0rthern ire1and, the p01ice 0mbudsman is a n0n-g0vernmenta1 0rganisati0n
that was given the j0b 0f ensuring that the grievance system used by the p01ice is
independent and impartia1. in additi0n t0 being ab1e t0 accept c0mp1aints direct1y fr0m
pub1ic representatives, the 0mbudsman is a1s0 ab1e t0 gather evidence, c0nduct f0rensic
investigati0ns, and carry these 0ut. 1ega1 n0rms guarantee that 1aw enf0rcement
auth0rities are ab1e t0 c00perate with 0ne an0ther, and they p1ace 1ega1 duties 0n any
rec0mmendati0ns made by the 0mbudsman. if the 0mbudsman has gr0unds t0 suspect that
a crimina1 0ffence has been c0mmitted, he 0r she may take the case direct1y t0 the
direct0r 0f the pr0secut0r's 0ffice and bring it t0 his 0r her attenti0n.
as an i11ustrati0n, he c1arified that inf0rma1 justice instituti0ns were n0t permitted
t0 participate in crimina1 activity and that d0ing s0 was c0nsidered a vi01ati0n 0f the 1aw.
he said this in 0rder t0 i11ustrate that this was the case. in m0zambique, where a system
very much 1ike this 0ne is in p1ace, the state p01ice have issued "inf0rma1 ru1es"
c0ncerning the administrati0n 0f justice, inc1uding a pr0hibiti0n 0n inf0rma1 tria1s. this
ru1e pr0hibits the h01ding 0f inf0rma1 tria1s. these s0-ca11ed "inf0rma1 ru1es" decide
h0w cases are hand1ed and h0w they are distributed between the 0fficia1 c0urts and the
un0fficia1 c0urts.
the findings 0f surveys genera11y c0nfirmed that inf0rma1 justice instituti0ns (such
as re1igi0us b0dies, c0unci1s 0f e1ders, cust0ms c0urts, 0r simi1ar 0rganisati0ns)
r0utine1y hear questi0ns regarding crimina1 cases. participants in the pr0cess are ab1e t0
attest that the j0b they are d0ing is successfu1. the 0verwhe1ming maj0rity 0f th0se wh0
resp0nded and t00k part in the activities rep0rted that they were typica11y treated fair1y
and that decisi0n-makers r0utine1y exp1ained the rati0na1e behind their ch0ices. this was
27
0ne 0f the m0st c0mm0n themes that emerged fr0m their resp0nses. these findings are
c0nsistent with th0se that were disc0vered in the iab rep0rt that was pub1ished in 2014. 0n
the 0ther side, there were s0me c0ncerns 0ver the 1ack 0f c0nsistency in the decisi0n-
making pr0cess as we11 as the re1ative1y restricted access t0 justice f0r the genera1
p0pu1ati0n. f0r instance, a resp0ndent fr0m the united arab emirates stated that studies 0f
this nature are 0ften carried 0ut in secret and are 1imited t0 participants wh0 are members
0f a certain c0mmunity 0r gr0up 0f pe0p1e.”
pe0p1e in many different jurisdicti0ns are inf1uenced by a number 0f fact0rs, s0me
0f which inc1ude the ineffectiveness 0f the f0rma1 justice system, their 1ack 0f c0nfidence
in the system, and the preference they have f0r 1ess f0rma1 preference sett1ement
pr0cedures, such as v01untary participati0n and decisi0n-making 0n issues based 0n
mutua1 agreement. 0ther fact0rs inc1ude the preference they have f0r 1ess f0rma1
preference sett1ement pr0cedures, such as the preference they have f0r preference
sett1ement pr0cedures. there is c0existence 0f b0th 0fficia1 and inf0rma1 systems 0f
justice. the defendant, 1es0th0, insisted that he had f0110wed a11 0f the pr0cedures t0 the
1etter.
even whi1e de1ays in 0fficia1 instituti0ns might s0metimes 1ead t0 unfair resu1ts,
inf0rma1 systems 0f justice are n0nethe1ess ab1e t0 dispense justice in a m0re time1y
manner. individua1s may 0pt f0r the inf0rma1 system as a means 0f achieving their g0a1s
0f rec0nci1iati0n, rehabi1itati0n, c0mpensati0n, and reintegrati0n rather than the typica1
f0rm 0f incarcerati0n that is ass0ciated with the f0rma1 justice system. this may be the
case because the inf0rma1 system is m0re f1exib1e. this might pr0vide an additi0na1 b00st
0f drive t0 acc0mp1ish these 0bjectives. inf0rma1 justice pr0cedures have the p0tentia1 t0
be very beneficia1 in av0iding min0r disagreements fr0m gr0wing int0 m0re seri0us kinds
0f physica1 c0nf1ict as a resu1t 0f the traits 1isted ab0ve and 0thers 1ike them.
“the gen0cide that t00k p1ace in rwanda in 1994 was the cause 0f the death 0f a
great number 0f pe0p1e and was resp0nsib1e f0r the destructi0n 0f the c0untry's
infrastructure. the three tiers 0f judicia1 resp0nse that are a part 0f the justice and
c0nci1iati0n pr0cesses are ab1e t0 hand1e the vast maj0rity 0f 0ffenders effective1y.
28
 • the c0urts 0f the gakaka pe0p1e • the internati0na1 crimina1 tribuna1 f0r rwanda •
the nati0na1 1ega1 system
between the years 2005 and 2012, the traditi0na1 c0mmunity c0urt system, kn0wn
as the gakaka, underwent a re0rganisati0n that resu1ted in it being ca11ed the gakaka. at
the 1eve1 0f the c0mmunity, the judges wh0 0versaw the hearing 0f gen0cide charges were
e1ected by the c0mmunity. if a pers0n c0mmits a sin, but 1ater has a change 0f heart and
strives t0 make amends with s0ciety, their sentence may be reduced. this is because it is
p0ssib1e f0r a pers0n's heart t0 be changed. the gakaka c0urts n0t 0n1y faci1itated
rec0nci1iati0n but a1s0 benefited the victims by a110wing them t0 1earn the truth ab0ut
the deaths 0f their fami1y members and re1atives. thanks t0 the gakaka c0urts, the victims
were ab1e t0 1earn the truth ab0ut the deaths 0f their fami1y members and re1atives. they
a1s0 gave crimina1s the 0pp0rtunity t0 admit their gui1t, seek f0rgiveness, and make
amends f0r the wr0ngs they had c0mmitted.
a c0mm0n accusati0n 1eve11ed against inf0rma1 justice is that it uph01ds s0cia1
structures and engages in practises that are discriminat0ry, particu1ar1y t0wards w0men.
neverthe1ess, increasing the number 0f w0men wh0 serve as judges is 0ne way t0 b0th
impr0ve the fairness 0f the system and fight discriminati0n.
f0r this reas0n, 10ca1 s0viet c0urts in uganda, as we11 as rura1 c0urts in
bang1adesh and papua new guinea, have estab1ished minimum qu0tas f0r the number 0f
w0men a110wed t0 serve 0n their benches.
10ca1 disagreements have the p0tentia1 t0 esca1ate int0 m0re seri0us crimes and
acts 0f vi01ence, 1eading, in the end, t0 1arger sectarian 0r triba1 c0nf1icts: "revenge" 0r
revenge.
in egypt, in 2013, v01untary c0mmittees 0f mediat0rs and arbitrat0rs were
estab1ished in 0rder t0 meet the demand f0r a speedy interventi0n in such disputes that was
a1s0 simp1e, inexpensive, and accessib1e. they are recruited fr0m retired pr0fessi0na1s,
business executives, judges, 0r teachers based 0n their expertise and s0cia1 prestige in
s0ciety. v01unteers receive extensive training. v01unteers are we11-trained. the s0-ca11ed

29
"natura1 auth0rities" in the c0mmunity are given a 10t 0f weight and "fina1ity" in the
decisi0ns that they make because 0f the emphasis p1aced 0n them.”
the right 0f an accused pers0n t0 have access t0 1ega1 c0unse1 is guaranteed by
human rights treaties, which a1s0 genera11y ackn0w1edge the crucia1 r01e that this
individua1 p1ays in the right t0 a fair tria1. despite this, nati0ns at every stage 0f
deve10pment, regard1ess 0f the type 0f 1ega1 he1p they pr0vide, are c0nfr0nted with a
variety 0f 0bstac1es, inc1uding
the requirement 0f adequate financia1 res0urces in 0rder t0 maintain c0nsistent
1eve1s 0f p01itica1 wi11 and 1ega1 aid. the executi0n 0f the united nati0ns p0st-2015
deve10pment agenda, which has as 0ne 0f its g0a1s "impr0ving the ru1e 0f 1aw at the
nati0na1 and internati0na1 1eve1s and ensuring equa1 access t0 justice f0r a11," has
significant difficu1ties as a resu1t 0f these c0nstraints (thr0ugh g0a1 16).
• the pr0visi0n 0f educati0na1 0pp0rtunities in the 1ega1 fie1d is a crucia1 first step
in achieving access t0 justice and receiving 1ega1 aid. in this sense, the meth0ds are
c0mprised 0f tw0 primary c0mp0nents: b01stering the cu1ture 0f human rights by
extending 1ega1 educati0n and increasing distributi0n by making use 0f free channe1s and
vari0us f0rms t0 cater t0 the requirements 0f a variety 0f diverse gr0ups.
• p0sitive discriminat0ry measures need t0 be taken int0 c0nsiderati0n during the
pr0cess 0f 1ega1 ref0rm, which a1s0 needs t0 address typica1 patterns 0f discriminati0n
that are current1y in use and remedy them. this is very imp0rtant.
rec0gnize that there is n0 effective means 0f deterring 0r preventing crime un1ess
the fundamenta1 causes 0f the vi01ence are addressed and acc0mpanied by a supp0rt
structure that m0nit0rs c0mp1iance. if this is n0t d0ne, there wi11 be n0 effective means 0f
either deterring 0r preventing crime.
• efficient access t0 1ega1 aid is characterised by the pr0visi0n 0f services 0f a high
qua1ity by th0se wh0 0ffer 1ega1 aid; adequate time; the p0ssessi0n 0f the necessary
kn0w1edge, expertise, and experience by th0se wh0 0ffer 1ega1 aid; and adequate time f0r
the preparati0n 0f s01uti0ns t0 pr0b1ems. a vita1 and active r01e in res01ving barriers t0
access t0 justice in a fair and unbiased manner can be p1ayed by emp10yees 0f the judicia1
30
 system, inc1uding 1awyers, judges, and 0ther emp10yees 0f the 1ega1 system, pr0vided
that qua1ity requirements are met.
• a1th0ugh decisi0ns need t0 be based 0n the specific nati0na1 circumstances, m0de1s
and best practises in different jurisdicti0ns can 0ften arise. this is the case because states use a
variety 0f different types 0f 1ega1 aid (inc1uding pub1ic defenders, bar ass0ciati0ns, and
att0rneys). have the abi1ity t0 m0ve ab0ut and change 10cati0ns.

chapter- 3

31
 meth0d010gy
in this particu1ar study, the researcher emp10ys a qua1itative appr0ach. when it c0mes t0
finding inf0rmati0n that is b0th in-depth and th0r0ugh, qua1ity research design is the meth0d
that is m0st effective. readers are ab1e t0 0btain a m0re in-depth grasp 0f a certain subject
thr0ugh the use 0f a qua1itative research design, despite the fact that this type 0f study cann0t be
genera1ized.

the data c011ecti0n pr0cess is supp1emented by the researcher's usage 0f supp1ementary

inf0rmati0n. the researcher makes use 0f a technique that is kn0wn as c0ntent ana1ysis. when
c0nducting deductive c0ntent ana1ysis, 0ne must first differentiate between vari0us c0des and
themes bef0re ca1cu1ating the pr0per frequencies and percentages f0r each rec0gnised c0de and
t0pic. when a researcher wishes t0 investigate n0t 0n1y the materia1 at hand but a1s0 the ideas
0n which it is f0unded and the frequency with which the c0ntent is emp10yed in 0ther things,
c0ntent ana1ysis is c0nsidered t0 be the m0re effective meth0d. this researcher is c0mpi1ing
examp1es fr0m a variety 0f s0urces, inc1uding peri0dica1s, newspapers, b00ks, and artic1es
1inked t0 the fundamenta1 c0nstituti0na1 rights enj0yed by pe0p1e 0f a variety 0f nati0ns,
inc1uding pakistan and the united kingd0m. an extra s0urce 0f data can be g1eaned fr0m the
uti1izati0n 0f this particu1ar type 0f techn010gy.

due t0 the fact that t researcher intends t0 make use 0f additi0na1 data in 0rder t0 c0nduct the
ana1ysis 0f the materia1, this study wi11 n0t inv01ve any v01unteers. the researcher wi11 se1ect
instances and research pub1icati0ns thr0ugh the app1icati0n 0f the target se1ecti0n appr0ach.

the researcher makes use 0f a technique that is kn0wn as c0ntent ana1ysis. this researcher
examines data transcripts fr0m a se1ecti0n 0f studies. it is essentia1 t0 extract vari0us c0des and
categ0rise them as either interna1 0r main subjects. the researcher wi11 next put t0gether a
numerica1 tab1e that wi11 disp1ay the frequency and pr0p0rti0n 0f the primary themes as we11

as any additi0na1 t0pics that were discussed in the data transcript.

32
chapter- 4
ana1ysis & discussi0n
“universa1 human rights treaties, c0nventi0ns and 1ega1 d0cuments c0ntain the 1ega1 text 0n
the right t0 a fair tria1, ie artic1e 6 0f the 1950 eur0pean c0nventi0n 0n human rights (echr) and
artic1e 14 0f the internati0na1 c0venant 0n civi1 and p01itica1 rights. , 1966 (iccpr), artic1e 8
(american c0nventi0n 0n human rights, 1969) (achr) and artic1e 7 (african charter 0f human and
human rights, 1981) (afchpr), etc.”
pakistan accused rights
this study kicks 0ff a discussi0n 0n the rights 0f th0se wh0 have been accused 0f a crime in
c0urt under internati0na1 1aw in re1ati0n t0 the 1ega1 system in pakistan. at this p0int 0f the
pr0ceedings, certain judicia1 practises that fa11 under internati0na1 1aw and c0ncern the rights
0f the accused are a1s0 br0ught up f0r discussi0n. due t0 the time c0nstraints 0f the
investigati0n, the accused wi11 n0t be ab1e t0 have a11 0f their rights that w0u1d be acc0rded
t0 them during the tria1 stage discussed. as a resu1t, the rights aff0rded t0 th0se wh0 are charged
are n0t exhaustive1y c0vered by this study. 0n the 0ther hand, it is a reference t0 a few 0f the
rights that are aff0rded t0 the accused b0th during the c0urse 0f the crimina1 investigati0n and in
c0urt.
rights 0f the accused during the c0urse 0f the tria1
the right t0 have access t0 a 1ega1 f0rum that is independent, kn0w1edgeab1e, and impartia1
after that, the right 0f the accused must be a fair and pub1ic hearing 0r an independent tria1, as
his right t0 a fair tria1 is 0ne 0f the m0st fundamenta1, m0st c0mm0n, and universa11y
rec0gnised human rights. acc0rding t0 artic1e 14 0f the c0de 0f crimina1 pr0cedure, the rights
and 0b1igati0ns 0f the accused 0r defendant must be determined in any c0urt pr0ceedings.
brings t0gether vari0us subfie1ds 0f internati0na1 1aw that c011ective1y define the c0ncept 0f
the right t0 a fair tria1 (c100ney & webb, 2021). the pursuit 0f justice is m0re than just a right.
0n the 0ther hand, it is a c011ecti0n 0f 1ega1 rights. if y0u are denied the right t0 a fair tria1, it
is p0ssib1e that a11 0f y0ur 0ther rights wi11 a1s0 be vi01ated.

33
0ne c0u1d c0nsider it an indispensab1e part 0f any existing judicia1 system. when an individua1
is accused 0f c0mmitting a crime, their inn0cence 0r gui1t must be determined in a way that is
b0th fair and c0mpetent, as we11 as within an 0bjective 1ega1 framew0rk that has been
estab1ished by the 1aw. additi0na11y, this eva1uati0n must take p1ace within the c0ntext 0f the
1aw. artic1e 7 0f the afchpr c0ntains a pr0visi0n that is identica1 t0 this 0ne. h0wever, artic1e 26
0f the afchpr emphasises that it is the resp0nsibi1ity 0f the states parties t0 ensure that judges are
free t0 practise their pr0fessi0n with0ut interference fr0m the g0vernment. in acc0rdance with
the pr0visi0ns 0f artic1e 8 0f the african charter 0n the rights and resp0nsibi1ities 0f pe0p1es
(achr), an independent, c0mpetent, and unbiased tribuna1 must be estab1ished (1). in additi0n,
the cpc inc1udes pr0visi0ns f0r the estab1ishment 0f a tribuna1 that is impartia1 and
independent, as is required by artic1e 6, paragraph 1 0f the cpc and in acc0rdance with the
1egis1ati0n. artic1e 40 0f the statutes 0f the internati0na1 crimina1 c0urts states that judges are
free t0 perf0rm their duties and are n0t inv01ved in any activities that c0u1d impede the
perf0rmance 0f their duties 0r affect their se1f-c0nfidence. this artic1e a1s0 states that judges are
n0t a110wed t0 engage in any activities that c0u1d affect the perf0rmance 0f their duties. this
ru1e ensures that judges are ab1e t0 carry 0ut their 0b1igati0ns with0ut interference whi1e
exercising the aut0n0my that is rightfu11y theirs.
in spite 0f the fact that pakistan's crimina1 c0de and the c0nstituti0n 0f 1973 d0 n0t inc1ude any
pr0visi0ns f0r this right 0f the accused, pakistan's c0nstituti0na1 c0urts have, in rea1ity, made
use 0f this right in practise when they have handed d0wn decisi0ns. 0n the 0ther hand, 0ne
c0u1d argue that this right is pr0tected in a r0undab0ut way by pakistan's c0nstituti0n,
specifica11y artic1e u/a 10-a, which ensures the right t0 a tria1 that is c0nducted in acc0rdance
with the 1aw. in 0ther w0rds, 0ne has the right t0 a fair tria1 that is carried 0ut in acc0rdance
with the 1aw.
the p0wer t0 10dge a f0rma1 c0mp1aint 0r appea1 with a judicia1 0r administrative b0dy
artic1e 6 paragraph 1 0f the chinese pena1 c0de stipu1ates that "the accused has the right t0
app1y t0 0r app1y t0 a c0urt 0r tribuna1 t0 exercise his civi1 rights and 0b1igati0ns." this is
stated in the cpc. in the case 0f g01der (1976), the eur0pean c0urt 0f human rights ru1ed that
artic1e 6 (1) 0f the ccp was in vi01ati0n 0f a pris0ner's human rights because the british h0me
34
secretary refused t0 c0nsu1t with the pris0ner's att0rney ab0ut fi1ing a new 1awsuit against the
pris0n 0fficer. the eur0pean c0urt 0f human rights came t0 this c0nc1usi0n because the british
h0me secretary refused t0 c0nsu1t with the pris0ner's att0rney ab0ut fi1ing a new 1awsuit
against the pris0n 0fficer. the verdict reached by the eur0pean c0urt 0f human rights was
predicated 0n the fact that the detainee had been treated with c0ntempt by the pris0n staff. the
same pr0b1em 0ccurred in campbe11 and fe11 (1985), in which the app1icant was s1ight1y
injured whi1e incarcerated and he s0ught 1ega1 advice fr0m his 1awyer; h0wever, this
permissi0n was granted after s0me de1ay. campbe11 and fe11 (1985) was the first case t0
address this pr0b1em. the pr0b1em was identica1 t0 the 0ne that had been seen in campbe11 and
fe11 (1985). the eur0pean c0urt 0f human rights made the verdict that artic1e 6, paragraph 1, had
been vi01ated as a resu1t 0f the evidence presented. the c0urt came t0 the c0nc1usi0n that the
speed with which individua1s may 0btain 1ega1 representati0n was an imp0rtant fact0r in
individua1 c0mp1aints, and that the significant de1ays that 0ccurred in these circumstances 1ed
t0 a vi01ati0n 0f the right t0 appea1 t0 a c0urt 0r tribuna1. this c0nc1usi0n was reached after the
c0urt came t0 the c0nc1usi0n that the speed with which individua1s may 0btain 1ega1
representati0n was an imp0rtant fact0r in individua1 c0mp1aints.
0ther than that, if the eur0pean c0urt decides t0 charge the secretariat, it wi11 be treated as a
crimina1 0ffence, c0mparab1e t0 speeding, and the administrative auth0rities wi11 n0t be
satisfied that they have c0mp1ied with the requirements 0f artic1e 6 (1) 0f the eur0pean
c0nventi0n 0n human rights. in 0ther w0rds, if the eur0pean c0urt decides t0 charge the
secretariat, it wi11 be treated as a crimina1 0ffence. this is due t0 the fact that artic1e 6 (1) 0f the
eur0pean c0nventi0n 0n human rights states that the decisi0ns 0f these b0dies are subject t0
judicia1 review by judicia1 auth0rities that have fu11 jurisdicti0n t0 0verturn decisi0ns 0n
matters 0f 1aw and fact (pa1a0r0 v. austria, eur0pean c0urt 0f human rights), which exp1ains
why this is the case. in a simi1ar vein, administrative b0dies 0r c0urts d0 n0t satisfy the
requirements 0f paragraph 1 0f artic1e 6 0f the ccp if they d0 n0t have the auth0rity t0 reverse
the decisi0ns that have been made by 10wer auth0rities based 0n the app1icati0n 0f 1aw and
facts. this is because paragraph 1 0f artic1e 6 0f the ccp stipu1ates that administrative b0dies 0r
c0urts must have the auth0rity t0 reverse decisi0ns made by 10wer auth0rities.
35
despite the fact that this particu1ar right is n0t exp1icit1y menti0ned in the pakistani
c0nstituti0n, the c0untry's highest c0urts have invariab1y decided in their decisi0ns that it is a
c0nstituti0na11y pr0tected right. f0r instance, if the supreme c0urt has decided that a pers0n has
the right t0 a tria1 based 0n that 0pini0n, then such right is regarded as being guaranteed by the
c0nstituti0n. acc0rding t0 the judgement handed d0wn in the case 0f 1iakat a1i chugtai in 2012,
access t0 justice is 0ne 0f the m0st fundamenta1 human rights. as a resu1t, this right sh0u1d be
regarded as a ru1e in a11 1aws if it is n0t express1y pr0hibited by a 1aw and is theref0re 0ne 0f
the m0st imp0rtant human rights. it is n0t p0ssib1e t0 dispr0ve the p0ssibi1ity that the right
0ut1ined ab0ve 0ught t0 be inc1uded in artic1e 10-a 0f the c0nstituti0n. this is because the
p0ssibi1ity cann0t be dispr0ven.
pr0viding c0mpetit0rs with a 1eve1 p1aying fie1d and the 0pp0rtunity t0 participate in
c0mpetitive pr0cesses” equa1ity 0f arms is 0ne 0f the essentia1 qua1ities 0f a fair tria1, and it
refers t0 the fact that there must be a pr0p0rti0nate am0unt 0f time spent 0n b0th the
pr0secuti0n and the defence during the pr0ceeding. this is 0ne 0f the essentia1 qua1ities 0f a fair
tria1 (campbe11 case, 1992). the c0ncept 0f a fair tria1, as described in artic1e 14 1 0f the cpc,
was e1ab0rated up0n further by the human rights c0mmittee. this pr0visi0n states that there must
be equa1ity 0f arms between the pr0secuti0n and the defence and that the princip1e 0f
adversaria1 pr0ceedings must be respected thr0ugh0ut the entirety 0f the tria1. additi0na11y,
this pr0visi0n stipu1ates that there must be equa1ity 0f arms between the pr0secuti0n and the
defence. the resp0nsibi1ity f0r de1ivering this c1arificati0n fe11 0n the sh0u1ders 0f the human
rights c0mmittee. it was a vi01ati0n 0f the ru1e that had been n0ted previ0us1y, which said what
t0 d0 "when the accused is n0t a110wed t0 attend 0r attend the hearing in pers0n 0r t0 instruct
his defence c0unse1." this was a vi01ati0n 0f the regu1ati0n. if the accused is n0t given the
required inf0rmati0n regarding the 0utc0me 0f the indictment, this imp1ies that the princip1e 0f
equa1ity bef0re the 1aw has been vi01ated, and the 1ega1 system sh0u1d be ref0rmed
acc0rding1y (d. w01f case, 1992).
the afchpr pr0vides f0r the imp1ementati0n 0f certain princip1es, such as the right t0 a fair tria1,
the "right t0 equa1 treatment," and the "right t0 a defence," in particu1ar when it is necessary in
the interests 0f justice and when it is the duty 0f the c0urt t0 d0 s0. these princip1es inc1ude the
36
right t0 a fair tria1, the "right t0 equa1 treatment," and the "right t0 a defence." these c0ncepts
inc1ude the "right t0 equa1 treatment" as we11 as the "right t0 a defence" and the "right t0 a fair
tria1." c0mp1iance with the ru1es specified in the internati0na1 human rights d0cument is
essentia1 in 0rder t0 guarantee that a11 c0urts and tribuna1s wi11 be ab1e t0 c0nduct pr0cedures
in a fair and impartia1 manner.
acc0rding t0 the american f0undati0n f0r civi1 1iberties and human rights (afchpr), "the right 0f
the state t0 equitab1e treatment" in 1ega1 affairs might refer t0 tw0 distinct c0ncepts depending
0n the c0ntext. the first interpretati0n 0f this phrase is that during the c0urse 0f the tria1, the
att0rney f0r the defendant and the pub1ic pr0secut0r sha11 each have an equa1 0pp0rtunity t0
fi1e a petiti0n in c0njuncti0n with the answer. the sec0nd interpretati0n 0f this phrase is that a11
0f the defendants sh0u1d be regarded the same if tw0 0r m0re 0f them share the same set 0f
circumstances. jurisdicti0n. this perspective was discussed in a case referred t0 as av0cets sans
fr0ntiers 2000. in that case, the appe11ate c0urt refused t0 accept a m0ti0n t0 adj0urn the tria1 in
the absence 0f the defendant's att0rney; as a c0nsequence, the tria1 was p0stp0ned. this
viewp0int was discussed in that case. this viewp0int was va1idated by the fact that the judge
a110wed the defense's m0ti0n t0 p0stp0ne the tria1 t0 a 1ater date.
in this regard, the eur0pean c0urt has a1s0 issued a ru1ing, which states that the "right t0 debate
in b0th crimina1 and civi1 pr0ceedings" means that b0th parties in a crimina1 0r civi1 tria1 are
required t0 be aware 0f a11 0f the evidence and statements made by the independent member.
the ru1ing was issued in regard t0 the "right t0 debate in b0th crimina1 and civi1 pr0ceedings."
nati0na1 1ega1 service. during the c0urse 0f the 10b0 machad0 tria1, the t0pic 0f s0cia1 rights
was discussed in 0pen c0urt (1996). the deputy att0rney genera1 0ffered s0me c0mmentary 0n
the matter that was being heard by the supreme c0urt, which resu1ted in the supreme c0urt
dismissing the app1icant's case and the app1icant being unab1e t0 find a s01uti0n t0 the
pr0b1em. in the case inv01ving the deputy att0rney genera1, the eur0pean c0urt came t0 the
c0nc1usi0n that there was a breach in the pr0visi0ns 0f artic1e 6 (1) 0f the ccp.
despite the fact that this right is n0t express1y guaranteed by pakistan's judicia1 system, artic1e
25 0f the c0nstituti0n, which is tit1ed "equa1ity 0f citizens," states that "there sha11 be an equa1
1aw f0r the pe0p1e 0f the c0untry." artic1e 25, paragraph 1 0f the c0nstituti0n states that "there
37
sha11 be an equa1 1aw f0r the pe0p1e 0f the c0untry." the 1egis1ati0n pr0vides equa1
pr0tecti0n f0r the nati0n as a wh01e as we11 as f0r each individua1 citizen "additi0na11y,
paragraph 2 0f artic1e 25 stipu1ates that "there sha11 be n0 sexua1 unfairness," and paragraph 3
0f artic1e 25 states that "there sha11 be n0 hindrance."
this artic1e c0nveys the message that a11 individua1s wh0 are subjected t0 identica1
circumstances sh0u1d be treated equa11y and pr0tected by the same 1aw, and that thr0ugh0ut
the tria1, discriminati0n between the pr0secuti0n and the defence sh0u1d be av0ided.
additi0na11y, this artic1e c0nveys the message that a11 individua1s wh0 are subjected t0
identica1 circumstances sh0u1d be treated equa11y and pr0tected by the same 1aw. it is
imperative that a further emphasis be p1aced 0n the fact that the c0nstituti0n d0es, in fact,
pr0vide this right, a1beit in a r0undab0ut way, under artic1e u/a 10-a.
the capacity t0 take part in judicia1 pr0ceedings, either as a witness 0r as a participant.
0ne 0f the fundamenta1 rights that is safeguarded by internati0na1 1aw is the individua1's
abi1ity t0 take part in 1ega1 pr0cesses. there is a str0ng c0nnecti0n between this right and the
right t0 a fair tria1 (whee1er, 2018). artic1e 14 (3) (d) 0f the internati0na1 c0venant 0n civi1 and
p01itica1 rights (iccpr), the re1evant statute 0f internati0na1 crimina1 tribuna1s f0r rwanda and
the f0rmer yug0s1avia, 1993 (icty), i.e. 20 (4) (d) and 21 (4) (d), have the right. artic1e 14 (3) (d)
0f the iccpr. it is imp0rtant t0 p0int 0ut that ifrs, u/a 6 (1) d0es n0t c1ear1y guarantee the right 0f
a pers0n t0 take part in a tria1 as a participant. in this regard, the eur0pean c0urt 0f justice came
t0 the c0nc1usi0n that the existence 0f this right c0u1d be br0ught t0 the attenti0n 0f the genera1
pub1ic by taking int0 acc0unt b0th the aim 0f the artic1e and its extensive imp1ementati0n
(br0zitsek case, 1989). in this particu1ar case, the sav0na regi0na1 c0urt did n0t issue a
summ0ns t0 the defendant requesting that he appear in c0urt, and there is n0 evidence t0 suggest
that the defendant had waived his right t0 pers0na1 participati0n, which is a vi01ati0n 0f artic1e
6. (1) 0f the c0nventi0n. in additi0n, there is n0 evidence t0 suggest that the defendant had
waived his right t0 m0netary c0mpensati0n, which is a1s0 a vi01ati0n 0f the c0nventi0n.
under pakistani 1aw, the accused is n0t given an express right t0 present in c0urt; n0nethe1ess,
the judge has the discreti0nary auth0rity t0 auth0rise the accused t0 attend the tria1 in

38
acc0rdance with secti0n 205 0f the crimina1 pr0cedure c0de 0f 1898. (cr p c). judicia1
pr0cedures cann0t be carried 0ut if there is n0 party t0 participate in them.
in spite 0f the fact that internati0na1 0versight b0dies have n0t deve10ped any the0ries
c0ncerning externa1 c0urts, these 0versight gr0ups have ackn0w1edged that there are particu1ar
circumstances under which such tria1s can take p1ace. the c1arificati0n may be f0und in artic1e
14 0f the crimina1 pr0cedure c0de as we11 as in the interpretati0n 0f the crimina1 pr0cedure
c0de n0. 13, which states that "due t0 unusua1 circumstances, the rights 0f the accused must be
carefu11y preserved in absentia." pr0vided ". if artic1e 14 0f the c0venant in absence is
f0110wed, which states that "the accused must be inf0rmed in a time1y manner ab0ut the tria1,
n0t in his fav0ur," then the c0nditi0n 0f a fair tria1 is c0nsidered t0 have been met. this is the
0n1y way in which the c0nditi0n 0f a fair tria1 can be c0nsidered t0 have been met. it is the
resp0nsibi1ity 0f the state party t0 guarantee that a11 aspects 0f the justificati0n princip1e are
adhered t0 in their t0ta1ity (ma1eki case, 1999).
in pakistan, the crimina1 pr0cedure c0de, secti0n 205, a110ws f0r tria1s t0 be c0nducted with0ut
the presence 0f the accused. this pr0visi0n grants the tria1 judge the auth0rity t0 pr0ceed with
the tria1 even in the absence 0f the accused, and it a1s0 grants the judge the auth0rity t0
c0nvince staff members. inv01vement 0f the accused at any p0int during the pr0ceedings 0f the
tria1.
the abi1ity t0 refrain fr0m testifying 0r t0 enter a gui1ty p1ea.
the accused pers0n has the right t0 remain si1ent and n0t be f0rced t0 testify against themse1ves
0r t0 c0nfess t0 a crime against them with0ut their c0nsent. this is c0nsidered t0 be 0ne 0f the
m0st fundamenta1 rights. an accused pers0n cann0t be c0mpe11ed t0 testify against himse1f in
the pr0cess 0f estab1ishing a crimina1 case against him, as stated in artic1e 14 (3) (g) 0f the
internati0na1 c0venant 0n civi1 and p01itica1 rights. this pr0visi0n pr0tects an accused pers0n's
right t0 due pr0cess. achr, u / a 8 (2) (g) pr0vides that every0ne has the right t0 testify against
himse1f 0r n0t t0 be c0mpe11ed t0 c0nfess, and artic1e 8 (3) further specifica11y states that the
c0nfessi0n 0f the accused is va1uab1e 0n1y if it is made with0ut c0erci0n. in 0ther w0rds, the
c0nfessi0n 0f the accused is 0n1y va1uab1e if it is made with0ut c0erci0n. in 0ther w0rds, the
c0nfessi0n 0f the accused 0n1y has va1ue if it was made v01untari1y and was n0t the resu1t 0f
39
any f0rm 0f c0mpu1si0n. regarding this particu1ar issue, neither the afchpr n0r the achr have
expressed any kind 0f p0siti0n 0r 0pini0n. 0n the 0ther hand, pr0tecti0n against the p0tentia1 0f
a pers0n indicting themse1ves is pr0vided by statute u/a 55 (1) (a) 0f the internati0na1 crimina1
c0urt as we11 as the app1icab1e 1aws 0f the icty u/a 20 (4) (g) and 21 (4) (g), respective1y.
the human rights c0mmittee (hrc) t00k n0te 0f the fact that investigat0rs vi01ated these
princip1es in a variety 0f ways in 0rder t0 c0erce the accused individua1 int0 c0nfessing 0r
testifying against him. this was br0ught t0 the attenti0n 0f the hrc by the human rights
c0mmittee. the 1aw makes it abundant1y c1ear that any type 0f evidence gathered in this manner
is inadmissib1e, and it d0es s0 acr0ss the b0ard. this is because the 1aw app1ies t0 any and a11
types 0f evidence. the c0mmittee has the auth0rity t0 take int0 c0nsiderati0n the statement made
by the accused when gathering evidence thr0ugh the af0rementi0ned meth0ds. in additi0n, the
pr0secut0r has the resp0nsibi1ity t0 swift1y thr0w 0ut any and a11 f0rms 0f evidence that were
gathered in an impr0per manner. the accused pers0n is n0t put under any f0rm 0f pressure, either
fr0m the 0utside 0r fr0m within, t0 make a gui1ty p1ea (berry case, 1994). as a c0nsequence 0f
this, the c0mmittee c0erced investigat0rs int0 signing testim0nies imp1icating him (in the case
0f sergi0 euben 10pez burg0s, 1981), 0r it c0erced the p01ice int0 t0rturing him, 0r it c0erced
him int0 p1eading gui1ty. a11 0f these acti0ns were taken as a c0nsequence 0f the c0mmittee's
acti0ns (estre11a case, 1983).
in artic1e u/a 13 0f the pakistani c0nstituti0n, it is exp1icit1y stated that n0 pers0n may be
c0mpe11ed 0r punished m0re than 0nce f0r the same 0ffence. acc0rding t0 this c1ause,
successive sancti0ns f0r the same 0ffence are n0t a110wed. there is n0 0b1igati0n f0r any0ne
wh0 is accused 0f assisting the defendant in any way t0 testify in a fav0urab1e manner. in
acc0rdance with secti0n 340, cr p c pr0vides y0u with this guarantee (2). the essentia1 c0ncept
that underpins b0th 0f these 1aws is that every0ne, even the accused, is be1ieved t0 be inn0cent
in the eyes 0f the 1aw un1ess it can be pr0ven bey0nd a reas0nab1e d0ubt that they are gui1ty 0f
the crime in questi0n. an answer 0f this kind is n0t necessary t0 be pr0vided by the accused in
this case.

40
t0 what extent d0es this indicate that he is a crimina1 is the questi0n that needs t0 be answered.
as a resu1t 0f this, this internati0na1 assurance is n0t 0n1y 0ffered in the c0nstituti0n 0f
pakistan, but it is a1s0 pr0vided in the 1ega1 system that the c0untry emp10ys.
it is best n0t t0 use any evidence that was 0btained in a dish0nest 0r unethica1 manner.
acc0rding t0 guide1ine 16 0n the r01e 0f pr0secut0rs (1990), pr0secut0rs are required t0 refrain
fr0m using evidence that c0nsiders such evidence 0btained by i11ega1 means 0n a 10gica1 basis
in their cases. this requirement was estab1ished in 1990. this is 0f utm0st significance in
situati0ns in which the un1awfu1 meth0ds inc1ude the app1icati0n 0f t0rture 0r 0ther f0rms 0f
i11-treatment. artic1e 15 0f the c0nventi0n against t0rture (1984) and artic1e 10 0f the
c0nventi0n against cens0rship are tw0 0ther significant internati0na1 1aws that pr0hibit t0rture
and punish th0se wh0 use it. these 1aws can be f0und in c0njuncti0n with 0ne an0ther in the
c0nventi0n against cens0rship. the cat mandates that each signat0ry ensure that any evidence
that was rec0gnised 0r 0btained during t0rture is n0t accepted as evidence, and the achr has
dec1ared that such evidence is inadmissib1e in 1ega1 pr0ceedings. the cat a1s0 mandates that
each signat0ry ensure that any evidence that was rec0gnised 0r 0btained during t0rture is n0t
accepted as evidence. this stipu1ati0n can be f0und in the af0rementi0ned d0cument. the r0me
statute 0f the internati0na1 crimina1 c0urt (1998) u / a 69 (7) makes it i11ega1 t0 use evidence
that was 0btained in vi01ati0n 0f internati0na1 human rights instruments if either 0f the tw0
c0nditi0ns 1isted be10w are met: (a) this vi01ati0n causes c0nsiderab1e distrust in the c0herence
0f the evidence; 0r (b) acceptance 0f testim0ny is a refutati0n and causes great damage t0 the
truth 0f the c0urts.
the sec0nd c1ause 0f artic1e 14 0f the c0nstituti0n 0f pakistan
it specifies unequiv0ca11y that n0 pers0n may be subjected t0 t0rture in 0rder t0 gather evidence
0r testim0ny, i.e., that there is a c0nstituti0na1 guarantee against evidence 0btained thr0ugh the
use 0f t0rture. in 0ther w0rds, it pr0hibits evidence fr0m being 0btained thr0ugh the use 0f
t0rture.
artic1e 14 paragraph 7 0f the internati0na1 c0venant 0n civi1 and p01itica1 rights c0ntains
pr0visi0ns f0r restricti0ns 0n d0ub1e je0pardy. [civi1 and p01itica1 rights] a pers0n wh0 has
a1ready been tried in c0urt and c0nvicted 0r acquitted f0r an 0ffence in acc0rdance with
41
nati0na1 1aw may n0t be retried 0r punished f0r the same 0ffence in 1ine with these
requirements, as they state that such a pers0n is ine1igib1e f0r such treatment. if a pers0n has
0nce been f0und gui1ty 0f an 0ffence based 0n an unseen judgement, the achr, u/a 8, states that
they sh0u1d n0t be re-c0nvicted 0f the same crime based 0n the same decisi0n. because the first
paragraph 0f artic1e 4 0f the c0de 0f civi1 pr0cedure states that a pers0n may n0t be re-tried 0r
re-punished f0r the same 0ffence, a pers0n wh0 has been c0nvicted 0f high treas0n by a mi1itary
c0urt and then acquitted wi11 be re-tried by the c0untry's civi1 c0urts. in 0ther w0rds, if a
pers0n is c0nvicted 0f high treas0n and then ex0nerated 0f the charge, he cann0t be f0und gui1ty
if he is retried by the mi1itary c0urt; neverthe1ess, the re0pening 0f pr0ceedings in the case 0f
fresh evidence is n0t barred by paragraph 2 0f artic1e 4 0f the c0nstituti0n. the presence 0f a
maj0r gui1t that has the p0tentia1 t0 change the resu1t 0f the case whi1e the case 0r cases in
questi0n are being ana1ysed. this is s0mething that can be d0ne during the pr0cess 0f ana1ysing
the case 0r cases.
it was determined by the eur0pean c0urt 0f human rights in the case 0f gradinger (1995) that it
was a c1ear vi01ati0n 0f artic1e 4 0f the c0nventi0n t0 imp0se tw0 sentences 0n an individua1
wh0 was accused 0f neg1igent h0micide. this was the c0nc1usi0n reached by the c0urt. this was
due t0 the fact that b0th punishments were f0r the same crime 0r f0r the same act c0mmitted by
the pers0n wh0 was accused 0f c0mmitting the act. in yet an0ther we11-kn0wn case, 01iveira
(1998), the resu1t was unexpected1y different fr0m what had been anticipated. whi1e the
defendant was driving 0n a sn0wy and icy r0ad, his vehic1e sudden1y veered away fr0m the
path 0f trave1, cr0ssed 0ver t0 the 0pp0site side 0f the r0ad, c011ided with a car, and then
c011ided with a third vehic1e, causing the driver 0f the third vehic1e t0 sustain significant
injuries. the accused was subsequent1y arrested f0r his inv01vement in the accident. after being
f0und gui1ty 0f "weakness in driving" by a p01ice c0urt in acc0rdance with chapter 31-32 0f the
federa1 traffic act, the p1aintiff was given a m0netary pena1ty in the f0rm 0f a fine. this was
because he did n0t drive at the speed that was necessary by the c0nditi0ns 0f the r0ad, and as a
resu1t, he was inv01ved in the accident. a fine 0f tw0 hundred swiss francs wi11 be imp0sed
(chf). the pr0secut0r decided t0 fi1e an appea1 against the sentence after s0me time had passed.
he charged him with "accidenta1 harm" in vi01ati0n 0f artic1e 125 0f the swiss pena1 c0de, and
42
he was given a fine 0f 2,000 swiss francs. the app1icant appea1ed the judgement, which resu1ted
in the fine being dr0pped t0 1,500 swiss francs; in additi0n, an initia1 deducti0n 0f 200 swiss
francs resu1ted in the fine being 10wered t0 1,300 swiss francs; this br0ught the t0ta1 am0unt 0f
the fine t0 1,300 swiss francs. the p1aintiff went t0 the eur0pean c0urt 0f human rights with a
c0mp1aint, a11eging that he had been c0nvicted twice f0r the same 0ffence, first f0r driving
misc0nduct and then f0r causing b0di1y harm t0 the driver, in vi01ati0n 0f artic1e 4. n0 7 0f the
pr0t0c01. the eur0pean c0urt 0f human rights ru1ed in the p1aintiff's fav0ur and f0und that he
had been c0nvicted twice f0r the same 0ffence. he asserted that these tw0 c0nvicti0ns were f0r
the same crime, but the c0urt disagreed. 0n the 0ther hand, the eur0pean c0urt 0f justice came t0
the c0nc1usi0n that this was a case inv01ving an act that was c0nsidered t0 be severa1 0ffences,
and that in circumstances 0f this nature, the greater 0f the tw0 pena1ties sh0u1d a1ways be the
1esser 0f the tw0. the fact that the act in questi0n had a1ready been carried 0ut served as the
f0undati0n f0r their determinati0n.
b0th the c0nstituti0n 0f pakistan and the crimina1 pr0cedure c0de have pr0visi0ns that pr0tect
citizens fr0m receiving mu1tip1e punishments f0r the same 0ffence. these pr0tecti0ns are
designed t0 ensure that citizens d0 n0t receive unfair treatment. this pr0mise is pr0tected by the
c0nstituti0na1 pr0visi0n kn0wn as artic1e 13, which states that n0 pers0n sha11 be punished
twice f0r the same 0ffence. this pr0visi0n is what makes it p0ssib1e t0 keep this pr0mise. this
artic1e pr0vides pr0tecti0n against d0ub1e punishment s0 that n0 0ne may be c0nvicted 0f a
crime based 0n the same set 0f facts that he has previ0us1y received 0r been c0nvicted 0f: (1)
there was a hearing f0r the accused against him; (2) the tria1 was c0nducted by a c0urt 0f
c0mpetent jurisdicti0n; (3) the tria1 ends with a c0nvicti0n 0r acquitta1; (4) the parties t0 b0th
tria1s must be equa1; and (5) the fact that was c0nsidered in the previ0us tria1 must be the same
as what is being c0nsidered in this
pr0tecti0n against 1aws that are enacted after the event has a1ready 0ccurred
artic1e 22 0f the r0me statute, artic1e 15 (1) 0f the afchpr, artic1e 9 0f the achr, artic1e 7 (1) 0f
the cpc, and artic1e 7 (2) 0f the cpc a11 pr0vide pr0tecti0n against 1aws that are enacted after
the event. this is a pers0n's estab1ished right, regard1ess 0f whether 0r n0t the act 0r 0missi0n
was a crime at the time it was c0mmitted. if an act 0r 0missi0n was n0t a crimina1 at the time it
43
was c0mmitted, but it 1ater became part 0f the n0ti0n 0f a crime, then a pers0n is n0t punished
f0r that crime, and this is the case even if the act 0r 0missi0n was n0t a crimina1 at the time it
was c0mmitted.
this right 0f the accused is guaranteed by artic1e 12 (a) 0f pakistan's c0nstituti0n fr0m 1973,
which states that n0 0ne sha11 be punished f0r any behavi0ur that is n0t c0nsidered a crime by
the 1ega1 system. this right was estab1ished t0 pr0tect the accused fr0m being punished f0r
acti0ns that were n0t c0nsidered i11ega1. t0 put it an0ther way, th0se wh0 have been accused d0
n0t have the right t0 be punished. artic1e 12 b stipu1ates that a c0nvicted pers0n may 0n1y be
sentenced t0 this am0unt 0f the sentence that was imp0sed at the time 0f the crime, and that a
sentence that is this much heavier may n0t be imp0sed even if the 1aw subsequent1y imp0ses a
sentence that is this much heavier f0r that crime. this pr0visi0n app1ies even if the 1aw
subsequent1y imp0ses a sentence that is this much heavier f0r a different crime. this pr0visi0n
app1ies even if the 1aw 1ater imp0ses a heavier sentence f0r a crime that was a1ready subject t0
a heavier sentence. it d0es s0 even th0ugh the 1aw has a1ready imp0sed a heavier sentence. the
c0nstituti0n 0f pakistan c0ntains a pr0visi0n that guarantees the pr0tecti0n 0f this right f0r any
individua1 wh0 has been accused 0f a crime.
regarding the pr0cedures, it is feasib1e t0 0btain the c0nc1usi0n that the right t0 a fair tria1
be10ngs t0 the m0ther. this is the c0nc1usi0n that can be drawn. if y0u d0n't have this c0rrect,
n0ne 0f the 0thers actua11y matter. h0wever, it is vita1 t0 estab1ish a ba1ance between the
rights 0f the accused and the rights 0f th0se wh0 have been damaged by vi01ati0ns 0f human
rights.
even th0ugh there is n0 requirement in the 1aw that a defendant be pr0ven gui1ty in 0rder t0 be
c0nvicted, a m0ra1 c0nvicti0n is necessary in 0rder t0 pr0secute the accused. it is preferab1e t0
have a f0rcefu1 accusati0n as the basis f0r the accusati0n rather than a feeb1e defence. because
putting the perpetrat0r 0f the crime 0nt0 the stage w0u1d be preferab1e. the internati0na1
crimina1 c0urt (icty) estab1ishes guide1ines t0 safeguard individua1s against severe treatment
and punishment. a fair tria1 is pr0vided under the c0nstituti0n 0f pakistan, which was created in
1973, as we11 as the crimina1 pr0cedure c0de, which was passed in 1898. the distincti0n
between internati0na1 papers and nati0na1 d0cuments is that internati0na1 d0cuments pr0vide
44
f0r many aspects 0f fair tria1, which are avai1ab1e t0 the accused n0t 0n1y in crimina1
pr0cesses, but a1s0 in civi1 matters. this is in c0ntrast t0 nati0na1 d0cuments, which
exc1usive1y pr0vide f0r certain aspects in crimina1 pr0cesses. c0ncerning the rights 0f the
accused, these rights are given t0 the accused n0t 0n1y during the stage 0f the inquiry, but a1s0
during the stage 0f the c0urt and the stage 0f the appea1. 0n the 0ther hand, the c0nstituti0n 0f
pakistan 0n1y inc1udes artic1e 10-a 0n the right t0 a fair tria1. it d0es n0t 0ffer any m0re
inf0rmati0n 0n the particu1ars 0f a fair tria1 0r the rights 0f pers0ns wh0 have been accused 0f a
crime. the particu1ars 0f the right t0 a fair tria1, 0n the 0ther hand, have been investigated in
pakistan's ru1ings. in this regard, in 0rder t0 safeguard the rights 0f the accused in a manner that
is c0nsistent with internati0na1 standards and equa1ity, it is pr0p0sed t0 examine and c0dify the
specifics 0f the right t0 a fair tria1 within the framew0rk 0f internati0na1 1aws 0f justice. this
wi11 ensure that the rights 0f the accused are pr0tected in a manner that is in c0mp1iance with
internati0na1 n0rms and equa1ity.
eur0pean accused rights
in ju1y 2009, whi1e sweden he1d the presidency 0f the eur0pean uni0n, a new r0admap t0
pr0m0te the pr0tecti0n 0f suspects and defendants in crimina1 pr0cedures thr0ugh0ut the uni0n
was intr0duced. inside the c0ntext 0f crimina1 pr0cedures within the eur0pean uni0n, the
r0admap describes its pr0jected future state f0r the deve10pment 0f the right t0 a fair tria1. 0n
ju1y 31, 2009, the same president de1ivered a draughts res01uti0n t0 the c0unci1 that described
the f0undati0n and c0ntent 0f the r0admap that had been ad0pted by the c0unci1. 30th 0f
n0vember, 2009 in the eur0pean uni0n. many 0rganisati0ns fr0m the civi1 s0ciety as we11 as
0ther imp0rtant parties have remarked 0n this pr0b1em as a resu1t 0f the re1evance it carries f0r
the pr0tecti0n 0f the rights 0f suspects and defendants within the eur0pean arena 0f justice.
at the time 0f this writing, the findings 0f the c0unci1 0f eur0pe summit that t00k p1ace 0n
10/11 december 2009 had just been ann0unced. these judgements have made a c0nsiderab1e
c0ntributi0n t0 the advancement 0f the eu freed0m z0ne, security and justice (afsj) (afsj) (afsj).
the st0ckh01m pr0gramme f0r 2010–2014 that was deve10ped by the eu high1ights the p01icy
pri0rities that were 0verseen by afsj. in particu1ar, the c0unci1 0f eur0pe c0nsidered "ensuring
the pr0tecti0n 0f fundamenta1 rights and freed0ms and integrity whi1e guaranteeing security in
45
eur0pe" t0 be a cha11enge, and it identified "human rights measures... as a pri0rity t0 pr0tect
individua1 rights" as a means 0f acc0mp1ishing its g0a1 0f "ensuring the pr0tecti0n 0f
fundamenta1 rights and freed0ms and integrity whi1e guaranteeing security in eur0pe." the
c0nstructi0n 0f a transparent and c0mprehensive afsj as a "sing1e z0ne f0r the pr0tecti0n 0f
fundamenta1 rights." it is pr0jected that the c0mmissi0n wi11 accept it, and it wi11 be enacted
"at 1east in june 2010" with the supp0rt 0f the spanish presidency 0f the eu.
this artic1e 0pens with a quick descripti0n 0f the genera1 p01icy framew0rk. within this c0ntext,
it is vita1 f0r us t0 have an awareness 0f the c0unci1's r0admap f0r the advancement 0f
pr0cedura1 pr0tecti0ns in crimina1 pr0ceedings and the re1ati0nship between that r0ad map and
the st0ckh01m pr0gram. in additi0n t0 it, references are made t0 past rec0mmendati0ns that
dea1t with this area 0f p01icy. sec0nd, it presents an ana1ysis 0f the pr0bab1e 0utc0mes 0f
imp1ementing the suggested preventative activities that are indicated in the r0admap. we take
int0 acc0unt what has been presented and ana1yse whether 0r n0t it is c0mpatib1e with what
sh0u1d be inc1uded in acc0rdance with the eur0pean standards that are n0w in effect. the
eur0pean c0nventi0n 0n human rights (echr) and the precedents issued by the eur0pean c0urt 0f
human rights are b0th given a significant am0unt 0f f0cus in this study (echr) (echr). third1y, the
research pr0vides s0me imp0rtant feedback 0n severa1 distinct e1ements 0f the pr0p0sed
r0admap. in c0nc1usi0n, we have 0ffered a number 0f p01icy ideas that have been pr0duced
with the purp0se 0f impr0ving the future unified 1ega1 framew0rk f0r pr0cedura1 1aw
thr0ugh0ut the eu. these pr0p0sa1s have been made in 1ight 0f the fact that we have estab1ished
the af0rementi0ned g0a1.
2. putting in p1ace the parameters that wi11 g0vern h0w the p01icy wi11 be imp1emented:
pr0tecti0n 0f the rights 0f th0se wh0 are suspected 0f c0mmitting 0r accused 0f c0mmitting a
crime in the c0urse 0f 1ega1 pr0cesses.
in a statement tit1ed "freed0m, security, and justice in the service 0f citizens" that was issued 0n
june 10, 2009, the eur0pean c0mmissi0n stated that there is n0 regu1ati0n 0f pr0cedura1 rights
in crimina1 pr0cedures at the eu 1eve1. the statement was tit1ed "freed0m, security, and justice
in the service 0f citizens." a demand f0r increased eff0rts t0 be c0nducted in this respect was
menti0ned in the statement as we11. at n0 p0int d0es the research make any menti0n t0 the
46
r0admap that was subsequent1y made accessib1e t0 the pub1ic by the swedish presidency. 0ne
0f the ideas that the c0mmissi0n had f0r the next mu1ti-year p1an under the afsj, which was the
st0ckh01m pr0gramme, was t0 "benefit fr0m the freed0m z0ne." this was 0ne 0f the suggesti0ns
that the c0mmissi0n pr0p0sed. this was 0ne 0f the c0mmissi0n's ideas f0r making the w0rkings
0f the justice system and security m0re understandab1e t0 c0mm0n f01ks. december 2009.
in this particu1ar scenari0, the st0ckh01m pr0gram estab1ishes pr0visi0ns f0r a future unif0rm
p01icy pr0tecting the rights 0f individua1s participating in crimina1 pr0cedures. this pr0visi0n,
in c0njuncti0n with the pr0m0ti0n 0f the rights 0f citizens acr0ss eur0pe, is part 0f the
st0ckh01m pr0gram. this m0re current text states that "the safeguarding 0f the rights 0f
suspected and accused individua1s in crimina1 pr0ceedings is a basic va1ue 0f the uni0n... t0
pr0m0te mutua1 trust between member states and pub1ic c0nfidence in the eur0pean uni0n." it
requests that the c0mmissi0n take 0n specific 1egis1ative suggesti0ns in 0rder t0 ensure the
executi0n 0f the activities that are specified in the text. these acti0ns can be f0und in the
d0cument.
this is s0mething that needs t0 be ackn0w1edged because it is 0ne 0f the m0re pr0gressive
c0mp0nents 0f the st0ckh01m pr0gram in terms 0f the neg0tiati0ns that have g0ne p1ace in the
c0unci1 chambers. the pr0tecti0n 0f the rights 0f suspects and defendants in crimina1 pr0cedures
has been 0ne 0f the m0re pr0gressive c0mp0nents 0f the st0ckh01m pr0gram. in particu1ar, the
m0st current iterati0n 0f the pr0gram ca11s f0r the imp1ementati0n 0f certain pr0p0sa1s
specified in the r0admap, which c0mes with its 0wn individua1 demands. a10ng with this new
additi0n, an increase 0f the 1ist 0f pr0cedura1 rights that are pr0vided f0r in the r0admap in its
current f0rm has a1s0 been made. these rights are pr0vided f0r in the current editi0n 0f the
r0admap. the c0unci1 0f eur0pe has urged that the c0mmissi0n "c0nsider if 0ther issues (if
necessary)... assist t0 pr0m0te c0-0perati0n in this area." this request makes a direct reference t0
the presumpti0n 0f inn0cence. fina11y, here we present a request that the c0unci1 str0ng1y
enc0urage the c0mmissi0n t0 imp1ement steps that w0u1d make it simp1er t0 c0mmunicate
"best practises." the pr0cedura1 rights 0f the individua1s wh0 are he1d 0ught t0 be inc0rp0rated
int0 these practises. as a direct c0nsequence 0f this, the c0unci1 agreed with s0me 0f the

47
p01itica1 pri0rities 1isted by the eur0pean par1iament in its res01uti0n that was v0ted 0n
n0vember 25th, 2009. these pri0rities be10ng t0 the area 0f crimina1 justice.
at the 1eve1 0f the eu, it is abundant1y 0bvi0us that the discussi0n 0n the pr0tecti0n 0f
pr0cedura1 rights in the c0urse 0f crimina1 pr0cedures is n0t a fresh phen0men0n. “ this is
because the t0pic has been g0ing 0n f0r quite s0me time. 0n apri1 28, 2004, the eur0pean
c0mmissi0n presented the pri0r pr0p0sa1 (which sha11 be referred t0 in the f0110wing as the
fwd) 0n the fundamenta1 decisi0n 0f the c0unci1 respecting certain pr0cedura1 rights in
crimina1 pr0cedure acr0ss the entire eur0pean uni0n. this judgement was made respecting
specific pr0cedura1 rights in crimina1 pr0ceedings. h0wever. at n0 p0int during the pr0cess did
the c0unci1 decide t0 supp0rt the p1an. after a number 0f years 0f tedi0us neg0tiati0ns, the
c0unci1 0f eur0pe came up with a "c0unter-pr0p0sa1" that was n0tab1y m0re 1ibera1 and
further changed its a1ternatives during the years 2006 and 2007, when austria, fin1and, and
germany he1d the presidency 0f the c0unci1 0f eur0pe. these changes 0ccurred during the years
in questi0n. the c0mp1ete ineffectiveness 0f this undertaking as a wh01e. particu1ar1y, severa1
de1egati0ns fr0m eu member states, in n0tab1y th0se fr0m the united kingd0m, the czech
repub1ic, ire1and, ma1ta, and s10vakia, have been fierce1y 0pp0sed t0 the preservati0n 0f
pr0cedura1 rights. this resistance has been very 10ud. these de1egati0ns are 0f the 0pini0n that
the pr0tecti0n 0f pr0cedura1 rights is a1ready guaranteed by artic1es 5 and 6, and that this
degree 0f pr0tecti0n 0ught t0 be regarded as adequate”.
as a c0nsequence 0f the fai1ure 0f the preceding pr0p0sa1 and the attempt t0 pursue an 0bjective
p01icy in 0rder t0 create a c0mm0n eur0pean 1egis1ati0n pr0viding f0r a c0mm0n cata10gue 0f
pr0cedura1 safeguards f0r suspects and accused in crimina1 pr0ceedings as part 0f the "re1evant
1ega1 pr0cess," the pr0p0sed strategy at the eu 1eve1 was m0re wide1y agreed up0n. this was
due t0 the fact that the previ0us pr0p0sa1 had attempted t0 create a c0mm0n eur0pean
1egis1ati0n pr0viding f0r a c0mm0n cata10gue 0f pr0cedura1 safeguards f0r suspects and
accused in crimina1 pr0ceedings as part 0f the " this was due t0 the attempt t0 create a c0mm0n
eur0pean 1egis1ati0n that w0u1d pr0vide f0r a c0mm0n cata10gue 0f pr0cedura1 safeguards f0r
suspects and accused in crimina1 pr0ceedings as part 0f the "re1evant 1ega1 pr0cess." in this
particu1ar instance, 0ther fr0m the regu1ati0n 0f unique pr0cedura1 rights, the rati0na1e f0r this
48
was the endeav0ur t0 bui1d a c0mm0n eur0pean 1egis1ati0n (industry appr0ach) (industry
appr0ach). in this specific situati0n, the right t0 trans1ati0n and trans1ati0n was granted. this
sh0u1d be regarded the primary f0cus. after that, in ju1y 0f 2009, a new pr0p0sa1 was submitted
t0 the framew0rk decisi0n 0f the c0unci1, and neg0tiati0ns are current1y taking p1ace between
the eur0pean par1iament and the c0unci1 0ver the t0pic. the manner in which the directive takes
the initiative is a matter 0f disc0urse in the c0ntext 0f the revisi0ns being made t0 the treaty 0f
1isb0n.
since the 1isb0n treaty c0mes int0 f0rce 0n december 1, 2009, the 0utc0me 0f these and 0ther
re1ated initiatives 0n pr0cedura1 rights wi11 a1ways be different. this app1ies t0 b0th the
initiatives being discussed here and th0se being addressed e1sewhere. this is 0wing t0 the treaty
0f 1isb0n, which amended the pri0r regu1ati0ns. the 1atter pr0vides a c1ear 1ega1 basis in
acc0rdance with artic1e 82 (2) 0f the treaty 0n the functi0ning 0f the eur0pean uni0n (tfue), and
as a c0nsequence, the 1ack 0f a permanent 1ega1 framew0rk that was supp1ied by s0me
nati0na1 de1egati0ns is n0 10nger deemed t0 be permanent. it is made abundant1y p1ain in the
sec0nd paragraph 0f artic1e 82 0f the tfue that "the eur0pean par1iament and the c0unci1 may
specify basic ru1es via directives issued in acc0rdance with the regu1ar 1egis1ative pr0cedure...
they be10ng t0: b) the rights 0f individua1s in crimina1 pr0ceedings." acc0rding t0 this
paragraph, any eur0pean 1egis1ati0n that c0vers this subject is deemed t0 be a minimum n0rm,
and it sh0u1d g0 with0ut saying that member states have the freed0m t0 pr0p0se higher
standards f0r the pr0tecti0n 0f such rights as th0se 0f individua1s. in additi0n, any eur0pean
ru1e that c0vers this subject is assumed t0 be a minimum standard. in additi0n, it is essentia1 t0
take n0te 0f the fact that f0r the first time in the hist0ry 0f the eu, c0nstituti0na1 n0rms require
the ad0pti0n 0f c0nstituti0na1 n0rms that require the ad0pti0n 0f a 1ega1 framew0rk that c0vers
the 1aw 0f crimina1 pr0cedure as a f0rm 0f "c00rdinati0n" (n0w appr0ximati0n) in para11e1
with traditi0na1 f0rms 0f judicia1 c00perati0n. this is a crucia1 mi1est0ne in the ev01uti0n 0f
the eu. this marks a crucia1 turning p0int in the ev01uti0n 0f the eu's hist0ry. indeed, this is the
current state 0f affairs. the pr0tecti0n 0f pr0cedura1 rights 0ught t0 be hai1ed unti1 such time as
they deve10p int0 an integra1 aspect 0f the security measures that are a1ready in p1ace in the eu
as we11 as any future 0nes that may be ad0pted there.
49
bef0re the 1isb0n treaty was ad0pted, there were in-depth ta1ks undertaken within the c0unci1
ab0ut the necessity and va1ue added 0f estab1ishing a cata10gue 0f pr0cedura1 rights at the
1eve1 0f the eu, taking int0 acc0unt the sc0pe 0f pr0tecti0n 0ffered by the eur0pean c0urt 0f
justice. these discussi0ns t00k p1ace bef0re the signing 0f the 1isb0n treaty. these exchanges
t00k p1ace bef0re the 1isb0n treaty was 0fficia11y signed. it is c0mm0n kn0w1edge that a
number 0f the member states have made use 0f this 1ine 0f reas0ning in an eff0rt t0 prec1ude
any type 0f transnati0na1 regu1ati0n in this area. this 1ine 0f reas0ning has been used right up
unti1 the current day, which exp1ains why the suggesti0n that the previ0us c0mmissi0n
pr0vided in 2004 was unsuccessfu1. despite this, a new perspective 0n pr0cedura1 1aw in its
t0ta1ity is required within the c0ntext 0f the eu afsj and as an additi0na1 c0mp0nent 0f
strengthening judicia1 c00perati0n in crimina1 pr0cedures acr0ss eur0pe. b0th 0f these aspects
are c0nnected. the 0n1y 0pti0n f0r the eu t0 effective1y hand1e the cha11enge 0f pr0tecting
fundamenta1 human rights and freed0ms and guaranteeing justice is f0r the eu t0 ad0pt a 1ega1
framew0rk f0r the pr0tecti0n 0f pr0cedura1 rights in crimina1 pr0ceedings. this is the 0n1y
0pti0n f0r the eu t0 effective1y address the task 0f preserving fundamenta1 human rights and
freed0ms and securing justice. b0th rappr0chement and mutua1 ackn0w1edgment are crucia1
mi1est0nes 0n the way t0 rec0nci1iati0n. w0n't end up happening at a11.
in additi0n, any appr0ximati0n 0n this p01icy issue is 0f particu1ar re1evance because it n0t
0n1y represents the kind 0f sect0ra1 appr0ach in which eur0pean regu1ati0n is examined in a
particu1ar area, but it a1s0 represents the fie1d 0f pr0cedura1 1aw. in 0ther w0rds, any
appr0ximati0n 0n this p01icy issue is 0f particu1ar imp0rtance. in additi0n, any estimate ab0ut
this matter 0f pub1ic p01icy is very significant due t0 the fact that it represents the subfie1d 0f
1aw kn0wn as pr0cedura1 1aw. h0riz0nta11y 0r "by taking a h0riz0nta1 appr0ach," 1ike in
(h0riz0nta1 0r h0riz0nta1 view).
in c0nc1usi0n, it is p0ssib1e t0 say that at the present time, certain c0nstituti0na1 pr0visi0ns
re1ating t0 certain pr0cedura1 rights are a1s0 pr0vided f0r in this artic1e. these pr0visi0ns are
pr0vided f0r in this artic1e. these pr0visi0ns are discussed in further detai1 1ater 0n in the essay.
artic1e 6 (1) 0f the treaty 0n eur0pean uni0n is the pr0visi0n that rec0gnises the 1ega1 effect 0f
the charter 0f fundamenta1 rights 0f the eur0pean uni0n. in this c0ntext, pr0cedura1 rights such
50
as the right t0 an effective remedy, the right t0 a fair tria1, the presumpti0n 0f inn0cence, the
right t0 defend 0nese1f, and the right t0 be pr0tected are unquesti0nab1y guaranteed. it is n0t
even p0ssib1e t0 ca11 int0 d0ubt the 1egitimacy 0f pr0p0rti0na1ity. neverthe1ess, in acc0rdance
with this ru1e, there is 0n1y a cr0ss reference, and in additi0n t0 that, its app1icati0n is n0t
a1ways standard acr0ss a11 member states. a number 0f the member states, such as the czech
repub1ic, p01and, and the united kingd0m, t0 name just a few 0f the m0re recent additi0ns, have
p01icies that differ fr0m 0ne an0ther. this is the fee that is required t0 be paid in acc0rdance with
the "f1exibi1ity" that has been imp0sed, which is actua11y referred t0 as a "excepti0n" in the
treaty. 1isb0n.

3. the imp1ementati0n 0f the acti0n p1an that was 0ut1ined in the r0ad map that was pr0vided
by the c0unci1
a discussi0n 0f the ccp and its pr0t0c01s, acc0rding t0 the definiti0ns pr0vided by the eur0pean
c0urt 0f human rights in strasb0urg, wi11 immediate1y f0110w the exp1anat0ry mem0randum.
evidence, as we11 as a few remarks in supp0rt 0f a sing1e eur0pean regu1ati0n 0f pr0cedura1
1aw in crimina1 situati0ns, are sh0wn be10w. there are a t0ta1 0f six different measures
inc1uded in the res01uti0n. 0n the 0ther hand, this 1ist d0es n0t inc1ude any numerica1 items
because the c0unci1 is ab1e t0 eva1uate the p0ssibi1ity 0f addressing the pr0b1em 0f
pr0cedura1 rights pr0tecti0n 0n t0pics 0ther than th0se that are menti0ned in the cata10gue. this
is the reas0n why this 1ist d0es n0t c0ntain any numerica1 items. t0 give y0u an examp1e, the
first step has a1ready been initiated in a h0riz0nta1 (n0n-sect0ra1) manner by changing
numer0us framew0rk decisi0ns pertaining t0 the mutua1 rec0gniti0n 0f the ru1es re1ating t0
absentee judgements in the rea1m 0f pr0cedura1 1aw; in spite 0f the fact that there have been
s0me 0bvi0us p0ints 0f c0ntenti0n, it is undeniab1e that the member states are exerting a great
dea1 0f eff0rt t0 harm0nise (0r bring c10ser) a sing1e c0nsensus.
at this time, the f0110wing p0ssibi1ities are being taken int0 c0nsiderati0n: 1) trans1ati0n and
trans1ati0n; 2) inf0rmati0n 0n rights and inf0rmati0n 0n charges; 3) 1ega1 assistance and 1ega1
advice; 4) c0mmunicati0n with re1atives, emp10yers, and c0nsu1ar auth0rities; 5) specia1
guarantees f0r suspects 0r accused pers0ns rec0gnised as vu1nerab1e; and 6) a green d0cument
51
0n the right t0 rec0nsider the gr0unds f0r pre-tria1 detenti0n. 1) trans1ati0n and trans1ati0n; 2)
inf0rmati0n 0n rights and inf0rmati0n 0n charges; 3) 1ega1 assistance and 1ega1 advice; 4)
c0mmunicati0n with re1atives, emp10yers, and c0nsu1ar auth0rities; 5) specia1 guarantees f0r
suspects 1) trans1ati0n and trans1ati0n; 2) inf0rmati0n 0n rights and inf0rmati0n 0n charges; 3)
1ega1 assistance and 1ega1 advice; 4) c0mmunicati0n with re1atives, emp10yers, and c0nsu1ar
auth0rities; and 5) specia1 guarantees f0r suspects in cust0dy.
the first activity c0nsists primari1y 0f trans1ati0n and additi0na1 trans1ati0n w0rk. the
res01uti0n states that "the suspect 0r accused must c0mprehend what is happening and be c1ear
t0 himse1f." [t]he suspect 0r accused must be c1ear t0 himse1f. a suspect 0r accused pers0n wh0
d0es n0t kn0w 0r understand the 1anguage that is being used in the pr0ceedings wi11 need the
services 0f an interpreter in additi0n t0 a trans1ati0n f0r imp0rtant pr0cedura1 papers. this is
because the 1anguage being used in the pr0ceedings is 1ega1ese. in additi0n t0 this, specia1
attenti0n sh0u1d be paid t0 the requirements 0f suspects 0r accused pers0ns wh0 have hearing
impairments. it has been interpreted that such a right "guarantees the right 0f the accused t0 an
effective participati0n in crimina1 pr0ceedings." this is in acc0rdance with the interpretati0n 0f
secti0n 6(3)e) 0f the crimina1 pr0cedure c0de. in a m0re genera1 sense, and in acc0rdance with
that interpretati0n, "this inc1udes, in particu1ar, the right t0 participate, but it a1s0 inc1udes the
right t0 1isten and 0bserve the pr0cess." this is due t0 the fact that a particu1ar pr0visi0n 1ike
this 0ne app1ies t0 "deaf suspects 0r th0se with hearing 0r speech difficu1ties," wh0 are required
t0 have "trained and experienced sign 1anguage interpreters" assigned in c0urt f0r them, as we11
as in interviews c0nducted by the p01ice. the reas0n f0r this is that a pr0visi0n 1ike this 0ne
app1ies t0 "deaf suspects 0r th0se with hearing 0r speech difficu1ties," wh0 are required t0 have
"trained and experienced sign 1anguage interpret in this particu1ar c0ntext, the new1y inc1uded
artic1e 2 (1) 0f the initiative 0f the eur0pean par1iament and the c0unci1's directives 0n the
rights 0f trans1ati0n and interpretati0n "unequiv0ca11y states the right t0 interpret bef0re the
investigative and judicia1 auth0rities, inc1uding the p01ice, during any and a11 pub1ic hearings
and at any time." "interim hearings" as we11 as "assistance t0 pers0ns with hearing impairments"
sh0u1d be respected in a11 crimina1 pr0ceedings, as we11 as pr0ceedings de1ivered in
pursuance 0f the eur0pean arrest warrant. "interim hearings" sh0u1d a1s0 be respected in the
52
eur0pean arrest warrant pr0ceedings (eaw). additi0na11y, "assistance t0 pers0ns with hearing
impairments" 0ught t0 be inc0rp0rated int0 each and every pr0ceeding.
in additi0n t0 that, y0u have the right t0 trans1ate what are referred t0 as "essentia1 pr0cedura1
d0cuments," a1th0ugh it is n0t made c1ear what d0cuments fa11 under this categ0ry. in any
event, the case 1aw 0f the ccp genera11y p1aces m0re 1imitati0ns 0n the right t0 trans1ate,
given that this right can 0n1y be exercised in specific situati0ns "things that need t0 be
underst00d in 0rder t0 benefit fr0m 1itigati0n inc1ude trans1ating d0cuments that a110w the
accused t0 kn0w the case and defend himse1f, in particu1ar: t0 be ab1e t0 present his 0wn
versi0n 0f events. t0 summarise, " fair " things that need t0 be underst00d in 0rder t0 benefit
fr0m 1itigati0n inc1ude trans1ating d0cuments that a110w the accused t0 kn0w the case and
defend himse1f. pr0visi0ns f0r "pr0cedura1 papers f0r trans1ati0n" have been added t0 this
initiative 0f the trans1ati0n and trans1ati0n regu1ati0n as 0f recent1y. acc0rding t0 artic1e 3
paragraph 2 0f this initiative, "imp0rtant d0cuments t0 which a11 0r significant passages 0f the
trans1ati0n sha11 be trans1ated sha11 c0ntain, at a minimum, arrest warrants 0r a1ternative
sentences, charges 0r c0nvicti0ns, and any sentences," imp0rtant d0cuments t0 which a11 0r
significant passages 0f the trans1ati0n sha11 be trans1ated sha11 c0ntain, at a minimum, arrest
warrants 0r a1ternative sentences, charges 0r c0nvicti0ns, and any sentences. there are
pub1icati0ns 0f this "initia1 1ist c0mpi1ed 0n the basis 0f the inf0rmati0n presented in the
artic1e. the third item 0n the agenda f0r the same meeting that c0ntains the directive is a1s0 the
third item 0f the initiative.
there is n0 menti0n 0f the qua1ity 0f the trans1ati0n and/0r trans1ati0n in the 0rigina1 pr0p0sa1
submitted by the c0mmissi0n in 2004, hence there is a significant 1inguistic gap between the tw0
versi0ns being examined f0r ad0pti0n. it s0unds the a1arm that a 1ack 0f trans1ati0n and/0r
trans1ati0n that is c0rrect and perf0rmed by ski11ed pers0nne1 is 0ne 0f the m0st critica1
difficu1ties that regu1ar1y 0ccurs am0ng eu member states. the imp0rtance 0f this area 0f the
1aw has been high1ighted by recent ru1ings issued by the ccp, such as the pr0t0papa case taken
against turkey. (a decisi0n was made 0n ju1y 6, 2009). the current rec0mmendati0n d0es n0t
address the free and unrestricted exercise 0f the rights 0ut1ined in the 2004 fwd rec0mmendati0n

53
0r artic1e 6 (3) (e) 0f the eur0pean c0nventi0n 0n human rights. furtherm0re, a res01uti0n
c0ncerning the m0st efficient meth0ds is being c0nsidered f0r ad0pti0n at this time.
step tw0 inv01ves disseminating data 0n financia1 0b1igati0ns and 1ega1 pr0tecti0ns. any
pers0n wh0 is under investigati0n f0r 0r has been accused 0f crimina1 activity must be advised
0f their c0nstituti0na1 rights either 0ra11y 0r, if necessary, in writing, such as by a 1etter 0f
rights. and the pers0n sh0u1d kn0w as s00n as p0ssib1e what the charges are and what 1ed t0
them. as 10ng as it d0esn't disrupt the n0rma1 c0urse 0f pr0ceedings, an accused individua1 has
a right t0 time1y access t0 a11 facts pertinent t0 his defence. b0th the right t0 be inf0rmed
0ra11y 0r, if necessary, in writing (f0r instance, by 1etter 0f rights) 0n 0ne's fundamenta1 rights
and the right t0 be inf0rmed 0ra11y 0r, if necessary, in writing (f0r instance, by 1etter 0f rights)
0n 0ne's fundamenta1 rights are guaranteed "0n the nature and cause 0f the charges against him"
0r "its" are phrases that are s0metimes inc1uded in the decree and have terms simi1ar t0 th0se
pr0vided in the 2004 pr0cedura1 rights rec0mmendati0n by the previ0us fwd c0mmissi0n. each
paper c0ntains the same inf0rmati0n with regard t0 the aism's resp0nse t0 the 1utz v. germany
case. the specifics 0f the a11egati0n 0r charge, as we11 as the rati0na1e f0r making it, must be
made pub1ic, unambigu0us, and c0rrect. 1anguage in which the accused is f1uent; this right is
intrinsica11y 1inked t0 the instrumenta1 right 0f trans1ati0n, s0 an interpreter 0r trans1at0r may
be required if necessary. w0rds and phrases used by the accused. in c0ntrast, the ccp ru1es
dec1are that n0 f0rma1 c0nstraints 0f any kind sh0u1d be imp0sed. 61 0n the meth0d that wi11
be uti1ised t0 inf0rm the defendant.
access t0 inf0rmati0n sh0u1d extend t0 n0t just the facts 0f the case but a1s0 the 1ega1
requirements as defined by the cpc.
draft res01uti0n has n0t yet estab1ished access t0 the fi1e by the interested party 1isted in the
initia1 versi0n 0f the swedish r0ad map. as such, this is an issue that must be res01ved.
disappeared fr0m the face 0f the earth. this secti0n's definiti0n 0f "appr0priate time" sh0u1d be
inc0rp0rated int0 any regi0na11y-specific regu1ati0ns. t0 ensure the efficacy 0f the 1aw at hand,
this disc10sure must take p1ace at the very 1east bef0re pr0secuti0n begins. a 1ist 0f the detai1s
that must be inc1uded in such a rec0rd must a1s0 be c0mpi1ed.

54
pr0fessi0n n0. 3: giving aid and c0unse1 in 1awfu1 situati0ns. here is a snippet fr0m the
res01uti0n itse1f: fundamenta1 t0 the fairness 0f crimina1 pr0ceedings is the right 0f a suspect
0r accused t0 get 1ega1 c0unse1 (fr0m a 1awyer) at the ear1iest appr0priate stage 0f such
pr0ceedings; the right t0 1ega1 assistance must give effective access t0 the f0reg0ing right t0
1ega1 advice. this res01uti0n inc1udes b0th a br0ad right t0 pr0tecti0n and references t0 tw0
specific pr0cedura1 safeguards: first, the right t0 1ega1 he1p, which inc1udes the c0sts 0f this
att0rney and any pri0r interpretati0n 0r trans1ati0n; sec0nd, the right t0 1ega1 advice. the right
t0 1ega1 representati0n must be made accessib1e t0 every suspect "at the ear1iest re1evant
stage," meaning bef0re any inquiries are asked ab0ut the charge. this makes sense given the
circumstances under which this pr0p0sa1 is being c0nsidered. the fwd's pr0cedura1 rights
rec0mmendati0n fr0m 2004 a1s0 g0es int0 great depth 0n this very subject. h0wever, in 0rder t0
ensure the right t0 1ega1 c0unse1, it is required t0 define "the ear1iest appr0priate peri0d 0f
1itigati0n." in 0rder t0 fu1fi1 the requirements 0f the right t0 1ega1 c0unse1, this is necessary.
the cedh, which serves as a minimum n0rm f0r the right t0 universa1 defence, a1s0 guarantees
three separate pr0cedura1 rights: the right t0 se1f-determinati0n, the right t0 free1y ch0sen
1ega1 c0unse1, and the right t0 1ega1 aid. this is the sequence in which certain privi1eges are
described: first, the right t0 ch00se 0ne's 0wn 1ega1 representati0n, sec0nd, the right t0
representati0n in c0urt, and third, the right t0 representati0n in c0urt. first, the right t0 pers0na1
pr0tecti0n must be rec0gnised even when it is n0t defined, pr0vided that such rec0gniti0n is
1ikewise rec0gnised by the 1aws 0f the c0untry in which the individua1 resides. as n0ted in the
preceding sentence, this a1s0 inc1udes the 0pti0n t0 f0reg0 such 1ega1 representati0n in
acc0rdance with ccp judicia1 practise. sec0nd, the accused must be assured 0f his 0r her right t0
technica1 representati0n fr0m an att0rney 0f his 0r her ch00sing, and the accused's
c0nversati0ns with the defence att0rney must be shie1ded fr0m pub1ic view. 69 it is imp0rtant
t0 c0nsider the accused pers0n's financia1 situati0n when deciding whether 0r n0t t0 pr0vide
them the right t0 free 1ega1 representati0n. the 1atter, yet individua1 regu1ati0n is wide1y urged
f0r b0th rights because 1ega1 he1p and 1ega1 c0unse1 are essentia11y separate types 0f
pr0cedura1 safeguards.

55
chapter-5
c0nc1usi0n & rec0mmendati0ns

it's remarkab1e h0w much eff0rt has g0ne int0 impr0ving b0th crimina1s' and victims' access t0
c0urt and meth0ds 0f giving 1ega1 aid. given the 0ng0ing discussi0ns at the united nati0ns 0n
the p0st-2015 deve10pment agenda, the activities taken are n0w significant 0n a g10ba1 sca1e.
in 1ight 0f this, it is h0ped that g0vernments w0u1d s00n pr0vide rea1 p01itica1 and financia1
supp0rt f0r the zea1 f0r justice sh0wn by att0rneys, civi1 s0ciety 0rganisati0ns, and the genera1
pub1ic. the af0rementi0ned fact0rs a11 c0ntribute t0 this c0nc1usi0n.

in its m0st recent iterati0n, the p0st-2015 deve10pment agenda reaffirms its dedicati0n t0
"ensuring that a11 pe0p1e can rea1ise their p0tentia1 with dignity and equa1ity" and
"m0bi1ising the necessary t001s t0 imp1ement this agenda thr0ugh the revita1izati0n 0f the
g10ba1 partnership f0r sustainab1e deve10pment," which is f0unded 0n a strengthened g10ba1
c00perati0n spirit. these tw0 pr0mises were made in 1ight 0f the agenda's 0verarching 0bjective,
which is t0 "ensure that a11 individua1s can rea1ise their p0tentia1 with respect and equa1ity."
in 0rder t0 meet the needs 0f the w0r1d's p00rest and m0st vu1nerab1e pe0p1e, a11
g0vernments, a11 regi0ns, and a11 stakeh01ders must w0rk t0gether 0n this initiative.

if the 0ther g0a1s 0f the p0st-2015 agenda are t0 be rea1ised, then access t0 justice and the ru1e
0f 1aw are indispensab1e. due 0f their centra1ity in the united nati0ns' sustainab1e deve10pment
g0a1s and their 0bvi0us imp0rtance t0 the advancement 0f pe0p1e's rights, these tw0 fact0rs
have been given a 10t 0f attenti0n (sdgs). margina1ised and deprived 0f basic s0cia1 services.
access t0 justice and the ru1e 0f 1aw, educati0n, n0ndiscriminati0n, decent w0rk, human
security, envir0nmenta1 pr0tecti0n, and s0 0n are 0n1y s0me 0f the c0ncerns that need t0 be
addressed. h0wever, 10ca1 c0nditi0ns need tai10ring the g10ba1 c0mmitment t0 fit the specifics
0f the regi0na1 1ega1 system. these c0nsiderati0ns emphasise the need t0 pick a g00d p01icy in
1ight 0f the pr0ject's timeframe and the successes and fai1ures 0f decisi0ns made in 0ther
jurisdicti0ns, tai10ring these p01icies t0 10ca1 c0nditi0ns f0r maximum effect.

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the 2014 rep0rt 0f the iaea c0mmittee 0n access t0 justice and 1ega1 assistance was supp0rted by
the findings 0f research and surveys. there is n0 sing1e meth0d that is sufficient, and the rep0rt
n0tes that barriers 0ften interact with faci1itating re1ati0nships. research and survey resu1ts
backed up these anecd0tes. e1iminati0n 0f barriers t0 participati0n in the 1ega1 system. when
discussing the appr0aches taken t0 rem0ving different kinds 0f 0bstac1es t0 access t0 justice
(inc1uding the re1ative1y narr0w issue 0f this study), this rep0rt sh0u1d keep in mind tw0 key
p0ints that have been high1ighted in recent ta1ks ab0ut the sustainab1e deve10pment g0a1s
(sdg):

access t0 justice and the ru1e 0f 1aw are universa1 c0ncepts that may be app1ied anywhere; yet,
it is essentia1 t0 remember that they require c0ntextua1izati0n. when d0ing s0, it is crucia1 t0
bear in mind b0th the br0ad app1icabi1ity and the specificity 0f the issues at hand.

0ne 0f the m0st inf1uentia1 and diverse parts 0f the p0st-2015 deve10pment agenda is the
pr0visi0n 0f access t0 justice. this part 0f the agenda is crucia1 because it high1ights the
imp0rtance 0f m0nit0ring deve10pment. this kind 0f eva1uati0n needs t0 be gr0unded in b0th
quantitative data ref1ecting instituti0na1 0utc0mes (such as the 1ength 0f pr0ceedings and
de1ays, the 1ength 0f pre-tria1 detenti0n, the number 0f cases per judge, and the percentage 0f
avai1ab1e 1ega1 aid) and qua1itative data derived fr0m the experiences 0f individua1 pe0p1e.
whether they are accused crimina1s 0r inn0cent victims, every0ne deserves fair treatment fr0m
the system that is charged with de1ivering it.

rec0mmendati0ns

in an eff0rt t0 strike a ba1ance between the genera1izabi1ity 0f s0me cha11enges and the
c0ntext-dependence 0f p0ssib1e s01uti0ns, the f0110wing essentia1 0bservati0ns c0u1d be
made:

• the w0r1dwide envir0nment 0f access t0 justice and 1ega1 aid may be significant1y impacted
by the united nati0ns sustainab1e deve10pment agenda 2015-2030, in particu1ar g0a1 16 0f this
agenda, which cites access t0 justice and the ru1e 0f 1aw as maj0r 0bjectives. whether g00d 0r
negative, this fact0r has the abi1ity t0 make a big difference. access. this wi11 resu1t in a

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p0werfu1 and unequiv0ca1 standard against which nati0ns' eff0rts t0 expand 1ega1 rec0urse and
instituti0na1ise the ru1e 0f 1aw may be measured. the 1ega1 c0mmunity can p1ay a piv0ta1
r01e in acc0mp1ishing g0a1 16 by w0rking with 0ther stakeh01ders 1ike civi1 s0ciety,
academic instituti0ns, and internati0na1 0rganisati0ns t0 pr0m0te the ru1e 0f 1aw and ensure
equa1 access t0 justice f0r every0ne. this wi11 a110w 1awyers t0 w0rk t0ward a s0ciety where
every0ne has equa1 access t0 justice and the ru1e 0f 1aw is uphe1d. this is crucia1 f0r achieving
g0a1 16's aims 0f ensuring that a11 pe0p1e are ab1e t0 access justice and pr0m0ting the ru1e 0f
1aw. the first essentia1 pi11ar is the 0fficia1 rec0gniti0n 0f the r01e that n0n-g0vernmenta1 and
n0n-pr0fessi0na1 act0rs p1ay in the pr0visi0n 0f 1ega1 assistance, and the sec0nd is the
estab1ishment 0f mechanisms (inc1uding mechanisms f0r m0nit0ring and eva1uati0n) t0
guarantee that the qua1ity standards 0f 1ega1 aid are met, b0th 0f which are necessary f0r the
successfu1 inv01vement 0f 0ther stakeh01ders. these tw0 fact0rs are crucia1 f0r en1isting the
he1p 0f re1evant parties. the 0fficia1 ackn0w1edgement 0f the r01e that n0n-g0vernmenta1 and
n0n-pr0fessi0na1 act0rs p1ay in the pr0visi0n 0f 1ega1 he1p is a crucia1 c0mp0nent f0r the
successfu1 engagement 0f 0ther parties. this is a crucia1 part 0f inv01ving re1evant parties
effective1y.

• the efficiency 0f the 1ega1 aid system can be increased f0r b0th defendants and victims by
c0mbining the eff0rts 0f the judiciary with th0se 0f 0ther pr0fessi0na1s, such as th0se w0rking
in the d0mains 0f medica1, s0cia1 w0rk, and victim adv0cacy. as a resu1t, system efficiency
wi11 impr0ve. the system wi11 then 0perate at maximum efficiency as a resu1t.

c011ects, m0nit0rs, and pub1ishes data 0n a c0nsistent basis; f0cuses 0n identifying cha11enges
and best practises f0r addressing th0se cha11enges; and, fina11y, c011ects, m0nit0rs, and
pub1ishes data 0n gender, age, s0ci0ec0n0mic status, and ge0graphica1 distributi0n. because
1earning ab0ut 0ne's rights under the 1aw is faci1itated by educati0n and training, this is the
case. • it's imp0rtant t0 hand1e the ambiguity that arises when s0me0ne is b0th the accused and
the victim 0f a crime, 0ne 0f the many difficu1t 0bstac1es standing in the way 0f that pers0n
receiving 1ega1 aid. this may impr0ve the efficiency 0f data exchange acr0ss nati0na1
b0undaries. kn0wing h0w these barriers 0perate in a given c0ntext is crucia1, in additi0n t0 the
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need t0 find s01uti0ns that are genera1izab1e acr0ss c0ntexts. there is a need f0r b0th this
kn0w1edge and the abi1ity t0 s01ve pr0b1ems.

each jurisdicti0n has the p0tentia1 and the 0b1igati0n t0 raise the bar in terms 0f victim
c0mpensati0n, 1ega1 representati0n, and ease 0f access t0 the justice system. the term "access"
is used in a variety 0f c0ntexts, inc1uding th0se pertaining t0 the pr0visi0n 0f 1ega1 services
and the payment 0f damages t0 victims 0f vi01ent crime. a c0mprehensive appr0ach that takes
int0 acc0unt a11 0f these fact0rs and that ackn0w1edges g00d and effective practises c0u1d
pave the way f0r fruitfu1 c00perati0n between states and pr0fessi0na1 1ega1 0rganisati0ns. 0ne
further advantage 0f this meth0d is that it saves time.

difficu1ties 0n ethica1, 1ega1, ec0n0mic, s0cia1, and p01itica1 fr0nts c0u1d arise in the days,
weeks, m0nths, and years ahead. the c0nsequences 0f these threats t0 human 1ife and
civi1izati0n wi11 be far-reaching. hundreds 0f pe0p1e are current1y making their way t0 eur0pe
fr0m syria and 0ther c0untries in an eff0rt t0 f1ee the vi01ence there. it's unc1ear what eur0pe
and 0ther c0untries wi11 d0 ab0ut pe0p1e wh0 want t0 1eave danger0us areas and their future in
genera1. eur0pe's 1ega1 and p01itica1 framew0rk that regu1ates internati0na1 0b1igati0ns t0
asy1um seekers and binds eur0pe's g0vernments. despite a11 the cha0s and uncertainty, 0ne
thing is crysta1 c1ear: the princip1es 0f justice and the ru1e 0f 1aw remain and wi11 remain 0f
the utm0st significance in the face 0f these pr0b1ems. equa11y imp0rtant g0ing f0rward wi11 be
adhering t0 the internati0na1 c0mmitments 0n access t0 justice and 1ega1 assistance that are set
f0rth in the princip1es 0f the united nati0ns. pr0tecting and emp0wering mi11i0ns, if n0t
hundreds 0f th0usands, 0f the w0r1d's m0st disadvantaged pe0p1e wi11 depend 0n access t0
1ega1 aid. this is a fact that can be verified everywhere 0n the p1anet.

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