Access to Justice and Human Rights
As a fundamental human right and a prerequisite for the effective enjoyment of all the human rights guaranteed by international, regional and national standards, access to justice is a global issue and the cornerstone of all judicial or quasi-judicial mechanisms of human rights protection.
Today, this premise is firmly anchored in international, regional and national human rights protection systems. Article 14 of the International Covenant on Civil and Political Rights, as commented by the Human Rights Committee in its General Comment No. 32, represents a solid normative foundation for the management of different aspects inherent to access to justice. The Basic Principles on the Independence of the Judiciary, the Guidelines on the Role of Prosecutors, the Bangalore Principles of Judicial Conduct and the Basic Principles on the Role of Lawyers define the minimum standards and pre-conditions necessary to ensure an equitable access to justice.
More recently, the international community expressed in the UN General Assembly’s Resolution 67/1 dated 24 September 2012 its desire to guarantee “the right to equal access to justice for all, including members of vulnerable groups.” Resolution A/C.3/67/L.34/Rev.1 on Human Rights in the Administration of Justice, adopted by the same Assembly on 16 November 2012, laid particular emphasis on an aspect that is fundamentally linked to access to justice, namely access to support services and legal advice. In the same vein, the Johannesburg Declaration on the Implementation of the Principles and Guidelines of the United Nations on Access to Legal Aid in the Criminal Justice System (26 June 2014) urged States to integrate equitable access to justice and legal aid as objectives in the post-2015 development agenda. In terms of internal legal systems, 16 national constitutions recognize at present the right of access to justice.
Moreover, this issue emerges strongly on the agenda of the international human rights stakeholders. This is evident, for example, in the United Nations Development Program on the Legal Empowerment and Assistance of the Disadvantaged, the various programs of UN Women targeting the improvement of women's access to justice, the 12 December 2012 Declaration of the International Commission of Jurists on access to justice and the right to a remedy before international human rights systems, the works of the International Federation for Human Rights on victims and access to justice, and those of the NGO "World Justice Project" on the rule of law and access to justice index.
However, the growing visibility of the issue of access to justice should not obscure the daily challenges hindering this access, especially for disadvantaged and vulnerable groups. Beyond the diversity of legal and judicial systems, these legal and practical challenges can be generally grasped and require remedies that are both global and local.
- The first challenge is that of accessibility (in the normative and practical sense) to justice for disadvantaged and vulnerable social groups. This challenge should not be analyzed from the socio-economic perspective only, but also from a legal perspective. Issues such as the access of disadvantaged and vulnerable groups to formal documents proving certain legal statuses (property, labor, rent, marriage, legal residence...) are all issues that reveal the limits of the evidence management systems in force in different litigation systems.
- The second challenge pertains to the legal protection of disadvantaged and vulnerable groups. This challenge is cross-cutting and affects aspects as diverse as the procedural accommodation of persons with disabilities, the decriminalization of minor offenses and status offenses, and the strengthening of the position of victims, especially most vulnerable ones, in the judicial process. Along the same lines we find issues related to the introduction of alternative sentences, "alternative dispute resolution models", the prospects of justiciability of economic and social rights, as well as the inclusion of the gender dimension in legal systems.
- The third challenge is the convergence of national, regional and international normative and legal bases governing access to justice and the judicial protection of disadvantaged and vulnerable groups. Three examples can be cited in this regard: the fragmentation of the interpretative body (general comments by treaty bodies, the recommendations of mandate-holders of special procedures); the complexity of the process of integrating, through a variable geometry, the rules flowing from the jurisprudence of regional human rights courts into national legislation, and the aspect of the formal convergence of court decisions on access to justice and protection of disadvantaged and vulnerable groups, especially in legal systems that have opted for specialized courts. It is within this same scope that we come to the reflection on the best approach to take to guarantee the mobilization of international human rights law by domestic courts and to strengthen the process of harmonization of internal legal systems through jurisprudence.
- The fourth challenge is cross-cutting and relates to the means and mechanisms to be mobilized to guarantee effective access to justice. One of the key issues underpinning this challenge is the dissemination of innovations and best practices in matters of legal aid and advice, such as legal clinics. Complementarity between the role of lawyers, the civil society and the university in terms of legal aid and legal assistance is a promising perspective to study. In the same context, the ways of mobilizing the legacy of customary laws developed by indigenous peoples to enrich the spectrum of dispute resolution alternatives will be discussed with full respect for the universality and indivisibility of human rights.
To examine these issues, ADALA Association and its partners propose to organize a thematic forum around five focus areas:
- Towards a justice accessible to disadvantaged and vulnerable groups (legal and socioeconomic challenges);
- Judicial protection of disadvantaged and vulnerable groups (procedural adaptations for vulnerable groups);
- Challenges of the convergence of the regional, national and international normative and legal bases governing access to justice and judicial protection of disadvantaged and vulnerable categories;
- Access to justice by women as addressed by the Working Group in charge of the question of discrimination against women in law and in practice, and by the special rapporteur on violence against women, its causes and consequences; and
- Improving access to justice: means, tools, resources and methods.