CONSULTATION ON THE DRAFT REGULATIONS OF

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS (IACHR) CONCERNING

THE LEGAL ASSISTANCE FUND OF THE INTER-AMERICAN HUMAN RIGHTS SYSTEM

The Thirty-eighth General Assembly of the OAS, meeting at Medellín in June 2008, approved resolution AG/RES. 2426 (XXXVIII-O/08), on the establishment of the Legal Assistance Fund of the inter-American human rights system. The purpose of the Fund is “to facilitate access to the inter-American human rights system by persons who currently lack the resources needed to bring their cases before the system.” The aforementioned resolution also stipulates that the Fund is to enter into force upon approval of its Rules of Procedure by the OAS Permanent Council.[1]

Resolution AG/RES. 2426 stipulates that the Fund shall have two separate accounts, for the Inter-American Commission and Inter-American Court, respectively, and shall be financed by voluntary contributions. Resolution AG/RES. 2426 also stipulates that the Commission or the Court, as the case may be, shall be responsible for approving legal assistance, in accordance with regulations that each of these organs shall issue to that end.

On November 11, 2009, the OAS Permanent Council approved the Rules of Procedure for the Operation of the “Legal Assistance Fund of the Inter-American Human Rights System,[2] Article 4.2 of which establishes the following criteria for regulations to be adopted by the Commission and the Court, respectively:

a)            Procedures that ensure that the potential beneficiaries receive support in due time and form;

b)           The establishment of a system for free defense counsel in both organs, for persons who need it, in accordance with resources allocated by each Fund;

c)           Proven need for these resources by the potential beneficiaries;

d)           Establishment of clear and transparent selection procedures;

e)           Consideration of mechanisms and procedures for the Court to reimburse costs to the Fund, in the event that the Fund has defrayed said costs; and

f)            That assistance is to be provided to victims from all states based on criteria of objectivity in selection, and diversity and plurality in the representation of victims.

On February 4, 2010, the Inter-American Court approved the Rules of Procedure for the Operation of the Legal Assistance Fund of the Inter-American Human Rights System, which will enter into force beginning June 1, 2010.

The IACHR considers it pertinent to point out that one of the main features of the Inter-American system is the possibility for any person who believes his or her basic rights are or have been violated with the opportunity to lodge a compliant with the system, without need of attorney assistance. At the same time, the Commission recognizes and underscores the importance of ensuring the greatest possible access to international justice though the inter-American system, and is aware that providing funds for system users who lack adequate financial resources may help facilitate their participation in the processing of their petitions.

Accordingly, and inasmuch as the OAS Permanent Council has approved the Rules of Procedure for the Operation of the Legal Assistance Fund, the Commission has begun the process of adopting its own regulations for granting legal assistance. To this end, the Commission hereby submits, for consultation with the member states and civil society, a series of points on the Legal Assistance Fund for the victims of human rights abuses regarding the processing of cases before the IACHR, with a view to gathering different perspectives regarding the Fund’s operation. The Commission very much appreciates any feedback in this regard.

The Inter-American Commission invites the member states, civil society organizations, and other experts to communicate their observations to the IACHR regarding the operation of the Legal Assistance Fund, especially with regard to the points indicated below. Observations should be limited to no more than five single-spaced pages and may submitted to the following address through July 30, 2010:

            Inter-American Commission on Human Rights

            Organization of American States

            1889 F Street, N.W.

            Washington, D.C. 20006

            cidhdenuncias@oas.org

DRAFT REGULATIONS OF THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REGARDING THE LEGAL ASSISTANCE FUND OF THE

INTER-AMERICAN HUMAN RIGHTS SYSTEM

(a)     Stage of the proceeding at which point the benefit is applicable:

            Of all the matters pending before the inter-American human rights system, a significant percentage of individual petitions are in the preliminary evaluation stage and is reduced as each stage advances. Consequently, the number of potential users applying for access to the Legal Assistance Fund would vary considerably according to the procedural stage of an individual’s petition.

            Beginning at which stage of a proceeding should a petitioner be permitted to apply for legal assistance through the Fund?

(b)     Use of Fund resources:

            Both resolution AG/RES. 2426 and the Rules of Procedure approved by the Permanent Council for the operation of the Legal Assistance Fund stipulate that the purpose of the Fund is “to facilitate access to the inter-American human rights system by persons who currently lack the resources needed to bring their cases before the system.” However, this resolution does not specify the types of expenditures that would be eligible for Fund resources.

            The Commission is aware of the various aspects involved in the processing of complaints before the system that entail costs for petitioners, such as submitting documentation to the IACHR, the gathering and presentation of evidence, appearances at public hearings, and payment of attorneys’ fees.

            Which proceedings-related costs should be eligible for coverage with resources through the Legal Assistance Fund?

(c)     Application requirements for Fund resources:

            In accordance with OAS General Assembly resolution AG/RES. 2426, one of the considerations for establishing the inter-American Legal Assistance Fund was the “significant number of low-income victims who have no real access to the inter-American human rights system, given the considerable cost involved in litigation in that system.” Accordingly, a determination must be made as to the circumstances under which a petitioner is considered to lack the necessary financial resources to effectively access the system as well as proof of such financial insolvency.

            Among the criteria to consider in determining whether or not to grant legal assistance are the following:

-      Petitioners must demonstrate need in order to access free or public legal assistance in their country (if applicable to the case in question);

-      Petitioners must meet the definition of poverty in their country, pursuant to the indicators of the main international organizations;

-      Petitioners must provide proof of need (e.g., income tax return, etc.); or

-      If following the model of the European Court of Human Rights, assistance would be contingent on whether or not a petitioner satisfies the requirements of the respondent country in order to access legal assistance.

            What requirements should be considered in applying for legal assistance and what proof of eligibility should be offered in this regard?

(d)     Organ in charge of granting the benefit:

            Finally, the following proposal regarding the organ in charge of granting the benefit is hereby submitted for consultation with the member states, civil society, and other users of the inter-American system. Accordingly, it is proposed that this organ would be an autonomous entity of the IACHR, which would process, decide, and oversee the grant of legal assistance from the Fund, following objective criteria that would ensure the most equitable and transparent process for the system’s petitioners. This autonomous entity would be financed with resources from the Fund as well as others allocated by the OAS General Secretariat for such purpose.

How should this organ be structured?