Tagged: access to justice

UN Mechanism for International Criminal Tribunals

As mentioned in our earlier posts the ad hoc international criminal tribunals have been preparing to transition their responsibilities to the Mechanism after completing their mandate and marking 20 years of existence in 2014. The International Criminal Tribunal for Rwanda (ICTR) closed on Dec. 31, 2015 and the Mechanism assumed it work as part of its mission to preserve and promote the legacy of the tribunal.

The Mechanism for International Criminal Tribunals (the MICT) 

was established by the United Nations Security Council on 22 December 2010 (S/RES/1966 (2010)) [acting under Chapter VII of the UN Charter] to carry out a number of essential functions of the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY), after the completion of their respective mandates.

The SC Res. 1966 in its Annex I includes the Statute of the Residual Mechanism articulating the Machanism’s competence, functions, structure, and organization, the election of judges, rules of procedure and evidence, the role of the Prosecutor and Registry, investigation, trial, right of the accused, protection of victims and witnesses, judgments and penalties, appellate procedures, enforcement of sentencing, pardons, and management of the archives. The Mechanism has two branches; one covering the remaining functions of the ICTR and the other of the ICTY. According to the Mechanism’s website, it is tasked with “continuing the jurisdiction, rights and obligations and essential functions of the ICTR” and “maintaining the legacy of both institutions.”

The President of the ICTY, Theodor Meron in its address to the UN Security Council on June 7, 2012 stated:

By establishing the Mechanism, the Council has helped to guarantee that the closure of the two pioneering ad hoc tribunals does not open the way for impunity to reign once more.

The Mechanism commenced action on July 1, 2013 temporarily overlapping with the ICTR and ICTY as both tribunals complete their outstanding mandates. The Security Council expects the Mechanism to function until it is decided otherwise with periodic reviews of its progress every 2 years. The first progress report (S/2015/883) was compiled and submitted in November 2015 for the Security Council review in 2016. In paragraphs 52-59 of the status report, President Meron describes the purpose and function of the Archives and Records stating that the Mechanism has the responsibility to manage, maintain, preserve and provide access to archives of the Mechanism and the two tribunals, as required under art. 27 of the Mechanism’s statute.

It is the Mechanism’s website ensuring access to information and documents related to the tribunals as well as the documents related to the Mechanism’s work, including basic documents (statute, rules of procedure and evidence, regulations and policies, reports and publication and budget), as well as links to the ICTR and ICTY archives (including basic documents, cases, news, reports, etc.), and links to review reports submitted to the Security Council on the progress of the Mechanism, news, and documents related to cases handled by the Mechanism.

Online Resolution of Disputes

A recent UK report recommending the adoption of on-line resolution of low-value civil disputes contains a fascinating look at various online dispute resolution systems currently operating in various jurisdictions, including one involving the resolution of traffic infractions. These systems are designed to improve access to justice for those who cannot afford the exorbitant cost of in-court litigation. The UK Traffic Penalty Tribunal enables appellants to appeal, upload evidence and follow their cases, and allows adjudicators to manage their cases, view evidence, and communicate with parties. Hearings are done by telephone conference, at which all participants can view the same evidence under supervision by the adjudicator. To be sure, there are pros and cons.

Food for thought, though, for anyone who has participated in the in-court adjudication of a traffic infraction; more importantly, since the unavailability of affordable legal solutions in the United States now extends beyond the traditionally poor and well into the middle class.

To read the full report, including a survey of current on-line dispute resolution processes worldwide, click the below:

Online Dispute Resolution Advisory Group, Online Dispute Resolution for Low Value Civil ClaimsCivil Justice Council (February 2015). 

New York State Commission on Correction Proposal to Limit Right of Access to the Courts

Pace Law School Professor and an expert on rights of prisoners, Michael B. Mushlin, weighs in on a proposed New York regulation, I.D. No. CMC-14-13-00010-P regarding inmate access to legal reference materials. The notice of the proposed regulation was published on April 3, 2013 and is available here starting on page 5. Public comment will be received until 45 days after publication of the notice.


In a society that operates under the rule of law access to the courts is the most basic right.  Without the accountability that courts provide, rights that exist on paper can easily become only that. This is especially true for incarcerated persons for whom the right of access to the courts is the “foundation of every other right an inmate has.”  Michael B. Mushlin, Rights of Prisoners, §12:1 (4th ed. 2010).  It has long been recognized that an important way to implement the right is to provide access to legal materials contained in law libraries.  Bounds v. Smith, 430 U.S. 817 (1977).  See also, Lewis v. Casey, 518 US. 343 (1996) (inmates who lose claims or defenses that they might win if they had access to legal materials have been deprived of a constitutional right of access to the courts).  The New York State Commission on Corrections has implemented the right of access to the courts by requiring all jails in the state to maintain small collections of essential legal materials governing New York State criminal law and some basic information about the constitutional rights of incarcerated people. The Commission is empowered under New York law to set standards for New York’s many jails holding pretrial detainees and persons serving misdemeanor sentences,

Now, however, the Commission proposes to abandon this simple requirement by amending its rule to eliminate the requirement that these legal materials be on site. Under the proposed amendments people who are held in these local facilities that choose to eliminate these small libraries will be limited to submitting written requests for material from other libraries with no guarantee the material will be delivered until the passage of three days following the request. (Alternatively, and less harshly, jails could establish computer terminals with online access but this would be limited only to New York state case law digests).  To make matters worse in a little noticed addition to the proposal, the Commission seeks to eliminate the obligation that inmates be given access to typewriters on which to prepare legal papers. In its place the Commission would only require that inmates be given access to “black ink pens” with which to write their legal submissions.  It is obvious, however, that typed or printed papers are more accessible to the judiciary than are handwritten document.  See, e.g. United States ex rel. Wolfish v. Levi, 439 F. Supp. 114 (S.D.N.Y. 1977) (noting that typed papers “leap more vividly than handwritten ones to the watery judicial eye.”). These limitations on essential rights of incarcerated persons are imposed to achieve a small savings of a mere $5,000 per year per jail. The price tag for deprivation of constitutional rights has rarely been set so low. One can only hope that the Commission will on reflection abandon this proposal to limit the right of access to the courts.

UN Issues International Standards for Legal Aid in Criminal Cases

UN General Assembly Enacts Global Standards on Access to Counsel

The UN General Assembly has adopted the world’s first international instrument addressing the provision of legal aid —  the new UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. Important provisions include:

  • prompt access to legal aid beginning with police custody and continuing through the adjudication process;
  • right to be informed about legal aid before any questioning;
  • the development of adequately funded and staffed nationwide legal aid systems.

To read more please click the following links:

UN General Assembly Enacts Global Standards on Access to Legal Aid (Open Society Foundations Dec. 20, 2012)
Draft UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems