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October 01, 2013

Exporting Gideon

by Michael E. Burke

As we observe the fiftieth anniversary of the U.S. Supreme Court’s decision in Gideon v. Wainwright, it is worth measuring how the decision has impacted international and foreign law. In general, the results are mixed: While some international and regional covenants support some of the same Gideon principles, many national governments have yet to create or enforce a right to legal assistance for indigent defendants in criminal cases.

International Covenant on Civil and Political Rights

Three years after Gideon, in 1966, the United Nations General Assembly adopted the International Covenant on Civil and Political Rights (ICCPR), part of the International Bill of Human Rights. This covenant, broadly speaking, requires states parties to respect the civil and political rights of individuals. Article 14, section 3(d) of the ICCPR states:

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: . . . (d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it. . . .

As of January 2013, 167 nations have ratified the ICCPR; twenty-four UN member states have not ratified the convention. The reservations, declarations, and understandings made by several ICCPR ratifying states contain several interesting items. For example, upon ICCPR accession, Bangladesh declared that criminal defendants are statutorily entitled to legal counsel if they cannot afford such counsel. Each of the Bahamas, Barbados, Belize, and Guyana confirmed its acceptance of the principles of ICCPR article 14, section 3(d) but made reservations specifying that each jurisdiction may have difficulty in fully implementing such principles. Gambia made a reservation stating that the right to publicly funded defense counsel was limited to capital cases. The United Kingdom made a reservation that a shortage of lawyers in certain of their overseas possessions would impede the effective implementation of these principles. Overall, however, this is a small number of reservations, understandings, and declarations as to the Gideon-inspired rights in ICCPR article 14, section 3(d).

Interestingly, on August 23, 1997, North Korea drafted a notification of withdrawal from the ICCPR. On September 23, the secretary-general forwarded an aide-memoire to the North Korean government and other ICCPR signatories stating that, because the covenant did not contain a mechanism for withdrawal, it would not be possible for North Korea to leave the ICCPR except with the agreement of all other state parties.

Although one of the effects of the ICCPR makes the holding in Gideon international treaty law, such right is not self-executing. The ICCPR’s principles are, in the first instance, monitored through the UN Human Rights Committee. All states parties to the ICCPR are obliged to submit regular reports to the Committee on how ICCPR rights are being implemented in their jurisdiction. Article 41 of the ICCPR provides for the Committee to consider complaints by one state party against another party. This interparty dispute mechanism has never been used in connection with enforcing the rights created at ICCPR article 14, section 3(d). The First Optional Protocol to the ICCPR establishes an individual complaints mechanism, allowing individuals to complain to the Human Rights Committee about violations of the ICCPR. The First Optional Protocol has more than 114 parties, and several complaints brought by individuals against state parties, focused on the rights created by ICCPR article 14, section 3(d), have been adjudicated by the Human Rights Committee.

International Criminal Court and Special Tribunals

The International Criminal Court and several of the Special Tribunals convened by the United Nations have effective mechanisms to ensure that indigent criminal defendants have access to state-funded counsel. Article 67(1)(d) of the Rome Statute establishing the International Criminal Court recognizes a right to legal assistance for indigent defendants in cases before that body. For most ad hoc UN tribunals, starting with the tribunals for the former Yugoslavia (article 18 of that tribunal’s constituting document) and for Rwanda (article 20 of that tribunal’s constituting document), the tribunals maintained a roster of defense attorneys who met basic criteria, from which an accused could choose, and who were compensated from the tribunals’ operating budgets. The Special Court for Sierra Leone, the Special Tribunal for Lebanon, and the Extraordinary Chambers in the Courts of Cambodia each had/has an independent defense institution located within the court. These offices certify the defense counsel who can appear before these courts and administer payment of counsel from the operating budget of each tribunal.

Regional Human Rights Instruments

Many regional human rights covenants include the right for an indigent criminal defendant to receive legal assistance, influenced by Gideon. For example, article 6(3)(c) of the European Convention on Human Rights states:

Anyone who has been accused of a crime has the right to defend himself, or to obtain a lawyer of his own choosing to defend him in court. If the accused does not have enough money to pay for legal assistance, the State should provide this service in the interests of justice.

Article 47 of the Charter of Fundamental Rights of the European Union provides, for criminal cases: “Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.” Under both the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union, the right for an indigent defendant to publicly funded counsel is not absolute—it is conditioned on the requirement that such access be in the interests of justice. In Quaranta v. Switzerland (1991), the European Court of Human Rights indicated three factors that should be taken into account in determining whether justice is served by providing indigent defendants with counsel: (i) the seriousness of the offense and the severity of the potential sentence; (ii) the complexity of the case; and (iii) the personal situation of the defendant.

Article 8(2)(e) of the American Convention on Human Rights contains similar language. The language at article 7(1)(c) of the African Charter on Human and Peoples’ Rights (signed and ratified by every African nation but South Sudan) is a touch more ambiguous, stating only that a defendant has the right to a defense, including to be represented by counsel of his choice.

Specific Jurisdictions

The right for an indigent defendant to obtain state-funded counsel in criminal cases is unevenly interpreted and applied.

India: Article 22 of the Indian Constitution outlines the right to counsel but does not specifically discuss the rights of an indigent defendant to counsel. The Law Commission of India, an executive body established by an order of the Government of India that advises the Ministry of Law and Justice on law reform issues, in 1972 (nine years after Gideon) stated that it is “of the view that defense of the indigent accused by a pleader assigned by the State should be made available to every person accused of an offense (i.e., in all criminal trials) so that mere poverty may not stand in the way of adequate defense in a proceeding which may result in the deprivation of liberty or property or loss of reputation.” This principle has also been affirmed by the Indian Supreme Court in the 1974 case of Ranchod Mathur Wasawa v. State of Gujarat, (1974) 3 SCC 581, wherein the court stated: “[i]ndigence should never be a ground for denying fair trial or equal justice.” Further, the Supreme Court of India, in Ranjan Dwivedi v. Union of India, (1983) 3 SCC 307, held that a judge has a duty to inform an indigent accused that he has the right to counsel.

Japan: Article 37 of the Japanese Constitution addresses the right to counsel regardless of the defendant’s financial background. Article 36 of Japan’s Code of Criminal Procedure states that “where the accused is unable to select a defense counsel for poverty or some other reason, the court shall assign a defense counsel on behalf of the accused upon his request. However, this shall not apply where defense counsel has been selected for him by some person other than the accused.”

People’s Republic of China: Indigent defendants must rely on legal aid centers or private lawyers who volunteer their services. Many indigent defendants still do not have access to an attorney, and legal aid centers often do not have enough lawyers to handle all the numerous cases that need help. Chinese law requires that the defendants ask for the legal aid, but due to poor knowledge about their procedural rights, many defendants do not ask for this aid.

Australia: The decision by the High Court of Australia in Dietrich v. The Queen [1992] 177 CLR 292 addressed whether an accused person needed representation in order for a criminal trial to be fair, and, if so, whether it equated to a common law or constitutional right. The court determined that although there is no right for an accused person to have representation in a criminal proceeding at public expense, the courts possess the power to stay criminal proceedings that will result in an unfair trial. A lack of representation, according to the High Court, may lead to an unfair trial. One justice, writing in the Dietrich decision, stated that the right for indigent criminal defendants to receive state-funded counsel is “entrenched in the Commonwealth Constitution by Chapter III’s implicit requirement that judicial power be exercised in accordance with the judicial process.”

Uganda: Article 28(3) of Uganda’s Constitution only guarantees the right to state-funded counsel to those who are charged with an offense that carries a death sentence or life imprisonment.

Zimbabwe: That nation’s Legal Aid Act, part III, section (10)(1)(a)–(b) (1996), states that “[i]f the accused cannot afford a legal representative, a magistrate can deem it necessary and desirable and in the interests of justice to certify that such a person have this assistance.”


While some international and regional covenants support some of the same Gideon principles, many national governments have yet to create or enforce a right to legal assistance for indigent defendants in criminal cases.

Michael E. Burke

Michael E. Burke is a partner in the corporate practice of Arnall Golden Gregory LLP, Washington, D.C. He is also the immediate past chair of the ABA Section of International Law.