The right to access to justice
between EU Charter and ECHR
Dr. Francesco Pesce
Assistant Professor in International Law
Università degli Studi di Genova (IT)
Access to justice: different levels
• NATIONAL level: internal courts and non-judicial procedures
• EUROPEAN UNION level:
European Court of Justice
• INTERNATIONAL level in Europe: ECHR
(Council of Europe)
• INTERNATIONAL level worldwide: UN monitoring bodies,
which are responsible for the implementation of human rights treaties
(e.g. Committee on Elimination of Racial Discrimination since 1969 –
CERD; Human Rights Committee since 1966 - UNHRC)
The concept of “access to justice”
• There is no standardised concept of “access to
justice”
• We generally make reference to Art. 6 and 13
ECHR (European Charter of Human Rights) and to Art.
47 CFR (Charter of Fundamental Rights of the European
Union)
Art. 6 ECHR (right to a fair trail)
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1.In the determination of his civil rights and obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal
established by law. Judgment shall be pronounced publicly but the press and public may be excluded
from all or part of the trial in the interest of morals, public order or national security in a democratic
society, where the interests of juveniles or the protection of the private life of the parties so require, or
the extent strictly necessary in the opinion of the court in special circumstances where publicity would
prejudice the interests of justice.
2.Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to
law.
3.Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause
of the accusation against him;
(b) to have adequate time and the facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient
means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination
of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in
court.
Art. 13 ECHR (right to an effective remedy)
Everyone whose rights and freedoms as set
forth in this Convention are violated shall
have an effective remedy before a national
authority notwithstanding that the violation
has been committed by persons acting in an
official capacity.
Art. 47 of EU CFR
Right to an effective remedy and to a fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are
violated has the right to an effective remedy before a tribunal in
compliance with the conditions laid down in this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by
an independent and impartial tribunal previously established by law.
Everyone shall have the possibility of being advised, defended and
represented.
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.
TFEU (Treaty on the Functioning of the European
Union), Art. 67(4)
«The Union shall facilitate access to justice, in
particular through the principle of mutual
recognition of judicial and extrajudicial
decisions in civil matters»
(please notice the cross-border dimension of the
principle)
… so we can determine the following
elements of access to justice
1. Right to effective access to a dispute
resolution body
2. Right to a fair proceeding
3. Right to timely resolution of dispute
4. Right to adequate redress
5. Principles of efficiency and effectiveness
Access to justice is currently related to
different terms:
EU level
• Within EU, access to justice equally covers
– access to EU courts (EU Court of Justice)
– access to national courts and tribunals in order to
enforce the rights derived from EU law
EU level (2)
•
National courts are obliged to implement Union law and to
protect the rights of the individuals under EU law.
National legal orders keep a procedural autonomy but they
must comply with (i) the principle of equivalence; (ii) the
principle of effectiveness
↓
they can affect a range of national remedies and procedural and
jurisdictional conditions (such as time limits, rules of
evidence and burden of proof)
EU level (3)
Many EU legislative instruments are intended to
give effects to the right to access to justice:
1. “Free Movement Directive” 2004/38
2. “Racial [ethnic origin] Equality Directive”
2000/43
3. Mediation directive (2008/52)
4. Legal aid directive 2003/8 (cross-border
disputes, but same incentive to adequate
internal legislation as the previous one)
European and international level
European and international level
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The relationship between che ECJ and the national
jurisdictions is quite peculiar, due to the differences
between EU Law and other forms of International law: EU
Member States are obliged to:
1.
2.
grant a direct effect to EU law at national level;
Grant the supremacy of the EU law compared to national one
Thank to the “preliminary reference” rule, individuals can
directly ask a decision to ECJ, both on interpretation of EU
law or on the validity of EU rule
European and international level
Under international treaties, there is not an
automatic obligation within national law to
make their rules directly applicable or
supreme to national law
ECHR and UN treaty bodies
• A very sensitive difference, in comparison to
EU system of right protection, is represented
by the admissibility criterion for the
complaint:
all remedies at national level have to be
exhausted before applying to ECtHR
(on the contrary case, the application will be rejected)
UN treaty bodies
• UN don’t have any global judicial forum to which individuals
may submit human rights complaints: there is no global
equivalent of ECtHR
UN treaty bodies (2)
• UN treaty bodies are charged of the control of the Treaties’
respect and they can receive individual complaints.
• Their positions are not directly binding for the States, but they
represent authoritative interpretations regarding the
substance of legally binding treaties.
ECHR
• A very huge number of complaints is currently pending before
ECtHR, so the proceeding’s duration is growing up.
• EU is accessing to ECHR: then, ECtHR will have the jurisdiction
in relation to an act approved by EU institutions failing within
the remit of the ECHR.
• Committe of Ministers is charged of the control on the
execution of (final) judgements by the States
Court of Justice of the European Union
A complete system of legal remedies and
procedures
National level
Possible restrictions to access to justice in EU
Member States:
National level (2)
According to ECtHR jurisprudence, restrictions
are permissibles to the extent
1. they are proportionate to achieve a legitimate
aim
2. so long as they do not restrict or reduce the
access left to the individual in such a way that
the very essence of the right is impaired.
National level (3)
• Example: here you can find the situation of
HCHR (Art. 6) violations concerning lenght of
proceedings
GOOD PRACTICES which could
facilitate access to justice
FRA (European Union Agency for Fundamental
Rights) suggested some good practises:
1. Simplified and less formalistic procedural rules (like
mediation)
2. E-justice initiatives
3. Generous rules on legal standing
4. Availability of redress other than compensation
5. Pro bono initiatives