"Public Defence is the representation of the legal protection for the most vulnerable".

19/01/2018

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Interview with Andrés Mahnke, National Defender of the Public Criminal Defence Service of the Republic of Chile

Andrés Mahnke, National Defender of the Public Criminal Defence Service of the Republic of Chile and General Coordinator of the Inter-American Association of Public Defenders (AIDEF in its Spanish acronym), talks to us about the challenges that Public Defenders face in the region and the projects being implemented in Chile and the region with AIDEF and support from the European Union EUROsociAL+ Programme.

In Latin America, Public Defenders are key players in guaranteeing access to justice for people with few resources or who are in prison and ensuring that they can exercise their basic rights What are the main challenges for Public Defenders in the region for carrying out their work effectively?

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 aspect is the relationship with structural aspects, which are linked to institutionalism. The technical independence of defenders and the institutional autonomy that ensures that 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, there is the qualitative aspect, keeping up the standards of defence (expert defence, paperwork, dignified treatment) and a system that ensures compliance with these standards. Through AIDEF, Public Defenders in the Americas and the Caribbean have made significant progress in this regard. 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 their clients, making the protection of rights a dead letter.

The action of EUROsociAL+ in the area of justice is aimed at expanding and strengthening the coverage of the assistance services provided by Public Defenders, in order to serve people who are in a vulnerable position in a dignified and human way Which vulnerable groups face the biggest obstacles to having access to justice, due to the limited recognition of their vulnerability?

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 happens with young people, women, especially those who are in prison, the LGTBI population, and differently abled people. All of them are linked by the main factor involved in vulnerability and discrimination, poverty.

On a regional level, EUROsociAL+ works from the very beginning in close cooperation with the Inter-American Association of Public Defenders (AIDEF), supporting progress in creating joint responses, such as common strategic reference frameworks for public policy on a regional level, adopting joint agreements, declarations and guidelines, and drawing up protocols and other shared products What added value does networking have for Public Defenders in Latin America?

First of all, one of the strategic objectives of AIDEF is to defend the full force and effect of Human Rights and the guarantees recognised in international treaties on this subject. Acting together in a coordinated manner makes a real impact on debates that it would be difficult to sustain alone, even in the domestic legal system.

It allows a permanent, inter-institutional system for the coordination and cooperation of Public Defenders to be set up 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 produces an obvious leverage of defence institutions that succeeds in lessening the structural deficiencies that many of them have.

We are currently working with AIDEF on a 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 unaware of the scale of the problem of torture? How could this issue be tackled in the work done by Public Defenders?

This is a deep subject. 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 is the case with torture. It is a topic on which we have taken the lead because, as a percentage, in a democracy, the most serious and most frequent cases of institutional violence and torture crop up at the two ends of the criminal justice process. At the start, following arrest, on police premises, and at the end, after a prison sentence has been handed down, in prison.

We have succeeded in placing this topic on the agenda because of the projects on which we have worked in this area, notably with Eurosocial, and by including the debate in the Inter-American Human Rights System (SIDH in its Spanish acronym) through the General Resolutions of the General Assembly of the OAS and plenary hearings at the OAS Commission for Legal and Political Affairs, among other instruments.

All this has allowed the internal debate to be permeated with the subject of imprisonment and its consequences, the excessive use of provisional detention (whether as punishment in advance or 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 those who are 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 teamwork. 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 of those who are involved in the system. 

María Luisa Domínguez, técnico senior del área de gobernanza democrática de EUROsociAL+