A/HRC/23/43 territory and subject to its jurisdiction, taking into account the scope and funding of legal aid schemes, the type of justice systems they belong to, and the area of jurisdiction where they function. Nevertheless, she also wishes to emphasize that, regardless of the structure of the legal aid programme or its formal status, it is of paramount importance that legal aid schemes be autonomous and independent in order to ensure that they serve the interests of those who need financial support to have access to justice on an equal basis with others. (b) Legislation 51. Since access to legal aid constitutes an essential procedural guarantee for the effective exercise of a number of human rights, the right to legal aid must be legally guaranteed in national legal systems at the highest possible level, possibly in the Constitution.23 In this regard, the Special Rapporteur notes with satisfaction that some States have already incorporated this right into their constitutional charters, 24 whereas some constitutional courts or other judicial authorities have considered this right an implicit yet essential precondition for the effective exercise of the right to a fair trial set out in the Constitution.25 52. A number of States protect the right to legal aid through the enactment of legal aid bills at the statutory level. While variations exist in the definition, scope and delivery terms of legal aid services, in a number of countries, domestic legislation provides for legal aid beyond cases of mandatory defence to all indigent persons when the interests of justice so require. Such domestic legal aid provisions render legal aid available not only in court proceedings, but also throughout the procedural stages of a case and in extrajudicial proceedings.26 53. States that have not already enacted specific legislation to establish a comprehensive legal aid system that is accessible, effective, sustainable and credible should consider doing so. Legislation on legal aid should ensure that effective legal assistance is provided at all stages of the justice process, at the pretrial stage, as well as in any judicial or extrajudicial procedure aimed at determining rights and obligations, provided that the person does not have sufficient means to pay for legal aid and, in criminal cases, that the interest of justice so require. In particular, legislation should ensure that effective legal aid is provided to victims of human rights violations in order to ensure that they have access to an effective remedy by the competent national tribunals for acts violating the fundamental rights set out in international treaties, the Constitution or the law. 54. National legislation should also include specific criteria to determine eligibility for legal aid, particularly with regard to the limits of the financial means that trigger eligibility. Moreover, persons who are denied legal aid on the basis of the criteria set out in national 23 24 25 26 United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, principle 1. See for example article 39 A of the Constitution of India: “The State shall (…) provide free legal aid (…) to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities”; article 294 (I) of the Constitution of Ghana: “A person is entitled to legal aid in connection with any proceedings relatively to this Constitution if he has reasonable grounds for taking, defending, prosecuting or being a party to the proceedings”; and article 18 (1) of the Constitution of the Netherlands: “Everyone may be legally represented in legal and administrative proceedings.” See for example David McQuoid Mason, “South African legal aid in non-criminal cases, in Making legal aid a reality: a resource book for policy makers and civil society (Budapest, Public Interest Law Institute, 2010). See for example the 1969 Legal Aid Act of South Africa, the 1999 Access to Justice Act of England and Wales, the 2005 New Legal Aid Law of Lithuania, and the 2009 Legal Aid Bill of Sierra Leone. 11