01 March 2018
Category : Interview
Andrés Mahnke, National Defender of the Chilean Public Penal Defender and General Coordinator of AIDEF, talks about the challenges in the region and the projects which are being undertaken with the support of the European Union financed EUROsociAL+ Programme.Andrés Mahnke
Public Defender’s Offices are key stakeholders in Latin America, for guaranteeing access to justice for incarcerated people and ensuring that they can exercise their fundamental rights. What are the main challenges to ensuring that the region’s Public Defenders are able to exercise an effective public defence?
These fall under three categories. Conceptually, although it may initially seem contradictory, Public Defence is not a support service for poor people. It is the representation of the legal protection that the State must guarantee as a basic right. Presenting it in any other way allows the State to shirk its responsibility and directly affects equality before the law, especially for the most vulnerable.
The next dimension refers to institutional aspects. The technical independence of defenders and the institutional autonomy that ensures this independence, funding, resources for hiring and training, salary equivalence with the other parties involved in the system, the capacity and funding to conduct in-house research, the provision of infrastructure that allows clients to be assisted in a suitable manner and information technologies that ensure a defence on equal terms with criminal prosecution.
Finally, the qualitative dimension aims to ensure defence standards and a system that monitors compliance with them. Public Defenders in the Americas and the Caribbean have made significant progress in this regard through AIDEF. If we did not take this aspect into account, we would be providing lawyers who would have no way of effectively representing the interests and rights of the defendants.
The EUROsociAL+ action in the area of justice is oriented towards expanding and strengthening the coverage of the assistance services provided by Public Defender’s Offices in order to humanise and dignify attention to people in vulnerable conditions. Which vulnerable groups face the greatest obstacles to accessing justice due to the limited recognition of their status?
The situation in Latin America shows us that native peoples, migrants and the prison population are the most vulnerable when it comes to their dignity and rights. The same is true for young people, women, especially those who are in prison, the LGBT population, and disabled people.–– All of them are linked by the main factor involved in vulnerability and discrimination, poverty.
At the regional level, EUROsociAL+ works in close collaboration with the Inter-American Association of Public Defenders (AIDEF), supporting progress in building common strategic reference responses and frameworks for regional public policies, the adoption of joint agreements, declarations and guidelines and the development of protocols or other common products. What is the added value of networking for the Latin American Public Defenders?
Firstly, defending the full validity and effectiveness of Human Rights and the guarantees recognised in international agreements on the subject, which is also one of AIDEF’s objectives. Acting together in a coordinated manner has a real impact on debates that it would be difficult to sustain in isolation. It allows a permanent, inter-institutional system for the coordination and cooperation of Public Defenders to be established with the aim of raising the standards of each individual defence system.
Finally, acting as a network within the framework of the Inter-American System for Human Rights notably increases the leverage of the defence institutions that succeeds in lessening the structural deficiencies that many of them have.
We are currently working with AIDEF on diagnosis and action guidelines for Public Defenders in cases of institutional violence so as to respond to cases of torture or institutional violence in prisons. According to recent diagnoses, despite the fact that more than 30 years have passed since the signing of the International and Inter-American Conventions to prevent and sanction torture, there are still major challenges in Latin America when it comes to institutional violence. Do you think that the general public in Latin America is aware of the scale of the problem of torture? How could this issue be tackled in the work done by Public Defenders?
This is a profound issue. After successive dictatorships in the region, it has been difficult to deal with serious human rights violations in democratic governments, whether that is identifying them, confronting them or even calling them by name, as it is the case with torture.
It is undoubtedly an issue on which we have taken the lead because the most frequent cases of institutional violence and torture occur at the two ends of the criminal justice process. At the beginning, following arrest, on police premises, and at the end, after a prison sentence has been handed down, in prison.
Through the projects we have carried out with EUROsociAL+ we have managed to position the issue, with the incorporation of the debate in the Inter-American Human Rights System (SIDH), through the General Resolutions of the General Assembly of the Organisation of American States (OAS) and plenary hearings of the Committee on Juridical and Political Affairs of the same institution, among other instruments.
All this has allowed the subject of imprisonment and its consequences to permeate the internal debate, along with the excessive use of provisional detention (whether as punishment in advance or as a social control mechanism), imprisonment as a central element of sentencing in the region, and in particular the institutional violence and torture in prisons that occur under these circumstances.
Finally, given the diversity of the actors involved in the area of justice and the fact that these are multi-dimensional problems, what mechanisms/instruments could be set up to improve inter-institutional and inter-sectoral coordination to implement access-to-justice policies?
Rather than creating or implementing new mechanisms or instruments, what is needed in Latin America at the moment is to consolidate and improve the existing channels to bring about good inter-institutional coordination. Strengthening the work between institutions in the area of justice and training the participants while promoting collaborative working.
This is because one of the problems we face is a lack of trust in the institutions of the justice system, not only on the part of the public, but also from those who are involved in the system.
María Luisa Domínguez, Senior Technician in Democratic Governance in the EUROsociAL+ Programme
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