for offenders, victims and witnesses if they do not have sufficient means or if it is in the interests
of justice.14 This is particularly important in the early stages of the criminal justice process for
those who have been arrested or detained for a criminal offence. Decisions made and actions
taken, or lack thereof, will determine their ability to effectively defend themselves, whether they
are arbitrarily detained before trial, whether they receive lawful and appropriate treatment during
prosecution, including being duly considered for diversion from the criminal justice system, and
ultimately, whether they receive a fair trial with due process. Legal aid is also crucial to protect
and safeguard the rights of victims and witnesses in the criminal justice process and it can be
used to contribute to prevention of crime by increasing awareness of the law.15
In many countries, members of minority groups are often overrepresented in both the
number of alleged offenders and victims. Access to legal aid is thus all the more important to
ensure protection of minorities’ fundamental rights, such as rights to a fair trial and equality
before the law or to liberty and security of person and to an effective remedy. Members of a
minority group can also be subject to discriminatory treatment rising from pernicious stereotypes
and biases from criminal justice officials, which can result in injustices such as in their
statements being considered less credible or facing heavier burden of proof than members in the
dominant community.
1. Obstacles to enjoying minorities’ rights in the criminal justice system
For minority groups whose language and culture differ from those of the dominant
community, such as foreign nationals, recent immigrants or racial, linguistic or cultural
minorities, the lack of or dearth of linguistically or culturally competent legal information and
aid augment the difficulties faced by all those accused or victims of crimes. For members of such
groups, the language used in the courts is the primary obstacle to the right to a fair trial in
addition to all the other challenges of navigating the criminal justice system that a person from a
dominant culture already faces. For their fundamental rights such as right of equality before the
courts and the right to a fair trial to be protected, a party to the proceedings who does not
understand or speak the language used in the courts must be given assistance of an interpreter
free of charge and be given a translation of the main procedural decisions.
Under Article 14(f) of the International Covenant on Civil and Political Rights, people
accused of criminal offences are explicitly guaranteed the right to have the assistance of an
interpreter if he or she cannot understand or speak the language used in court. In practice,
however, States seldom have sufficient budget to have qualified and competent interpreters who
can understand the complex legal concepts. Moreover, translation of proceedings is often limited
to the sentencing stage only, thereby overlooking potential procedural flaws that can infringe
upon the defendant’s right to due process. In this way, minority groups are made even more
vulnerable to arbitrary and excessive pre-trial detention, unawareness of or inability to exercise
the right against self-incrimination or disproportionate and unjust sentencing.
The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of
Power, the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems
and the UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime
include non-discrimination clauses and provide concrete measures that should be taken to ensure
the rights of victims and witnesses in the criminal justice system. However, in most legal
14
15
See United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, para. 8.
Ibid., para. 3.
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