1. Introduction
1. Access to justice is a broad concept which refers
to all the measures that improve access to courts, legal representation
and alternative dispute resolutions, as well as access to or action
by equality bodies and ombudsman institutions aimed at bridging
the gap between the law and
de facto enjoyment
of rights by individuals. Access to justice implies but goes well
beyond the right to an effective remedy, the right to equal access
to courts, the right to a fair trial or the right to legal aid for
those who lack sufficient resources.
It refers not only to the
initial stage of bringing a legal case to obtain redress against
the violation of a right but to the entire process.
2. Even if access to justice is an inherent aspect of the rule
of law, it is all too often a luxury in today’s Europe. A wealth
of evidence collected by reliable international and national bodies
confirms that some groups, including women, people belonging to
national minorities, LGBT (lesbian, gay, bisexual and transgender) people,
people with disabilities and migrants, encounter barriers in access
to justice. The situation is particularly worrying because these
same groups are also more likely to be targeted by direct or indirect discrimination,
and sometimes by crime.
3. Austerity measures are reinforcing the challenge of access
to justice, further weakening the situation of people belonging
to the above-mentioned groups but also restricting access across
the board, along income criteria: this is particularly evident in
countries where reporting or court fees are increasing and in those
where legal aid schemes are being cut in the context of spending
reviews.
4. Access to justice is at the heart of the work of the Committee
on Equality and Non-Discrimination because without it, equality
and anti-discrimination legislation and policies cannot be translated
into reality, despite the best intentions of those who introduced
them. It is therefore no surprise that this report builds upon several
activities of the committee, including those focusing on specific
groups such as the recent report on “Equality and inclusion for
people with disabilities” by Ms Carmen Quintanilla (Spain, EPP/CD).
5. If some groups of people come across more difficulties in
their access to justice than others, most of the barriers they encounter
are common to them all. Indeed, the conditions of access to justice
are too often faced with both legal and practical obstacles that
need to be identified and tackled in order to guarantee an equal access
to justice for all.
2. Conditions
of and obstacles to access to justice
2.1. The notion of access
to justice
6. “Access to justice” is a descriptive expression rather
than a legal concept. The European Convention on Human Rights (ETS
No. 5, “the Convention”) refers to the right to a fair trial (Article
6) and the right to an effective remedy (Article 13). All the other
main international human rights instruments do the same, including the
Universal Declaration on Human Rights and the International Covenant
on Civil and Political Rights. The concept of access to justice
is referred to in several passages of General Comment No. 32 of
the United Nations Human Rights Committee dealing with the right
to equality before courts and tribunals and to a fair trial.
7. The first international binding instrument explicitly referring
to access to justice is the Treaty on the Functioning of the European
Union: Article 67.4 stipulates that “the Union shall facilitate
access to justice, in particular through the principle of mutual
recognition of judicial and extrajudicial decisions in civil matters”.
8. As described by the Agency for Fundamental Rights of the European
Union (FRA),
the concept includes the following elements:
- the right to an effective remedy;
- the right to a fair hearing within a reasonable time by
an independent and impartial body previously established by the
law;
- the right to be advised, defended and represented;
- the right to legal aid for those who lack sufficient resources.
9. Moreover, the notion of access to justice has to be considered
in a broader manner than the mere procedural approach, putting more
emphasis on ensuring that the legal and judicial outcomes are themselves “just
and equitable”.
10. It is important to underline that the notion of access to
justice is not limited to judicial bodies, but includes alternative
dispute settlement mechanisms, such as quasi-judicial procedures
available before some equality bodies and national human rights
and ombudsman institutions. As clarified by the European Court of
Human Rights, these mechanisms are perfectly valid as long as their
decisions may ultimately be supervised by a judicial body and conform
to a general requirement of fairness.
11. Many Council of Europe member States allow for the possibility
of individuals accessing non-judicial procedures to obtain redress,
for certain categories of cases concerning family law, commercial
litigation or criminal matters with regard to procedures for compensating
victims. Non-judicial procedures are often a faster and cheaper
alternative for victims, which should be further explored by member
States. In this regard, it is interesting to note that 18 Council
of Europe member States grant legal aid outside judicial procedures
– for instance within the framework of alternative dispute resolution
or transactional procedures – in order to reduce their volume or
to facilitate access to law.
For example, Lithuania provides
legal aid that covers advice on out-of-court dispute settlement,
actions for the amicable settlement of a dispute and drafting of
a settlement agreement.
In my opinion, this is a good practice
that should be followed by other member States.
12. However, I should like to recall that, in accordance with
Article 48.1 of the Council of Europe Convention on Preventing and
Combating Violence against Women and Domestic Violence (CETS No.
210), mandatory alternative dispute resolution and sentencing are
prohibited in relation to all forms of violence covered by the scope
of the convention. This provision aims to take into account the
negative effects that alternative methods can have in such cases,
especially when they are mandatory and replace adversarial court
proceedings. As underlined in the explanatory report of the convention,
victims of such violence can never enter the alternative dispute
resolution processes on a level equal to that of the perpetrator.
It is therefore the responsibility of the State to enable them to
seek justice in adversarial court proceedings presided over by a
neutral judge and which are carried out on the basis of the national
laws in force.
13. I consider that the setting up of independent equality bodies
tasked with providing assistance and information to victims of discrimination,
in particular concerning their access to justice as well as monitoring
and reporting on discrimination issues, is a good practice that
has a positive impact on access to justice. In France, the Defender
of Rights, an independent administrative authority, helps victims
of discrimination to achieve concrete access to justice by providing
them with legal assistance and helping them to collect evidence
of discriminatory actions. The institution may also provide mediation
services concerning relations with public services or the police
and plays a significant role with regard to awareness raising and
providing information concerning the fight against discrimination,
resulting in people increasingly relying on it.
14. Each element of access to justice, understood as a general
concept, is faced with several obstacles that prevent an equal access
to justice. For some categories of people, these barriers – whether
societal, social or legal – are harder to overcome. It is therefore
necessary to raise awareness on the different types of barriers to
access to justice and to recommend means to address them.
2.2. Awareness of rights
and procedures: access to information
15. A broad dissemination of information about rights
and procedures is essential for an effective access to justice.
As a matter of fact, the groups that are most likely to experience
discrimination are also the ones that are less likely to know their
rights and the existing remedies. There is therefore a need for
empowerment of these groups through awareness raising.
16. In a report of 2012, the Fundamental Rights Agency indicated
that the absence or inadequacy of information about where to lodge
a complaint and on further steps, as well as the complexity and
technical nature of the language used are among the most important
barriers to access to information.
It is also interesting to note that
the FRA found that targeted information about legal provisions related
to concrete cases is more efficient than general knowledge spread
more widely.
17. Nevertheless, knowing where to lodge a complaint is only the
first step towards bringing a case before the courts. An insufficient
and unequal geographical distribution of justice institutions can
jeopardise physical access to them, especially for people living
in remote or rural locations or people with disabilities. In this
regard, the European Commission for the Efficiency of Justice (CEPEJ)
notes a widespread tendency to reform the judicial map in most member
States, along with a reduction of the number of courts. The consequences
of these reforms may be compensated by the development of e-justice,
which appears to be a significant European trend. The CEPEJ also
underlines that information to court users is generally being developed among
member States, in particular by using the Internet as a central
communication tool and creating official websites dedicated to the
dissemination of legal information, resulting in a generally easier
access to information.
However,
this trend may be to the detriment of people without access to the
Internet (for example homeless people and people living in poverty).
18. As underlined by the CEPEJ, there is no clear trend towards
an increase of special mechanisms for providing information. These
mechanisms, when they exist, mostly apply to victims of rape or
domestic violence. However, awareness raising about rights and procedures
for each vulnerable population group is essential for the improvement
of access to justice. In this respect, implementing communication
strategies targeting particular groups to promote rights and relevant
procedures, awareness through campaigns and programmes – in multiple
formats and avoiding technical jargon – would assist in raising
awareness of particularly vulnerable categories of people. In particular,
having recourse to community organisations that have expert knowledge
on how to reach their specific target groups could be an efficient
means of meeting the needs of these people, who would therefore
find the information needed directly within their community.
19. Migrants, refugees and stateless persons are likely to encounter
obstacles linked to their limited knowledge of the language of the
host country. This also applies, to a certain extent, to people
belonging to linguistic minorities. In this respect, the creation
of multilingual information services would positively impact the spreading
of legal awareness. One solution could lie in the creation of specific
information centres or in co-operation with non-governmental organisations
(NGOs), whose work is specialised in assisting migrants, refugees
and stateless persons with the relevant institutions, for the dissemination
of judicial information. In Belgium, the Interfederal Centre for
Equal Opportunities and Opposition to Racism and Discrimination
ensures the accessibility of the information it provides by offering
it in different languages, including sign language and Braille.
20. More generally, it is important to note that the media play
a particularly useful role in propagating information. The FRA underlines
that one sixth of the complainants interviewed for the conduct of
its study had gained their knowledge about their rights and appropriate
judicial procedures from the media. I should like to underline that
co-operation between governments and the media can therefore greatly
contribute to the dissemination of legal information among the population.
In this regard, the use of intermediaries, such as NGOs specialised
in issues faced by specific groups, for instance LGBTs, women or
refugees, can also significantly improve the spreading of information
regarding the rights of particular groups.
2.3. Legal aid
21. It is particularly important to guarantee legal aid
as a fundamental safeguard of equal access to justice for all. The
introduction of legal aid systems aims at removing financial barriers
for people who do not have sufficient means to initiate court proceedings.
22. Article 6 of the European Convention on Human Rights guarantees
the right to a fair trial in both civil and criminal proceedings.
This includes the right to legal aid for those facing a criminal
charge, as expressly set out in Article 6.3.
c of
the Convention and, according to the case law of the Court, the
right to legal aid in civil cases in some circumstances.
The Court has consistently
held that the right to free legal aid in civil proceedings, involving
legal advice and representation, arises only when a party lacks
sufficient resources and that legal assistance is indispensable
to ensure effective equality of arms.
23. The Committee of Ministers of the Council of Europe has repeatedly
encouraged member States to develop legal aid systems, including
in its Resolution (76) 5 on legal aid in civil, commercial and administrative matters,
Resolution (78) 8 on legal aid and advice, and Recommendation No.
R (93) 1 on effective access to the law and to justice for the very
poor. The Council of Europe has also adopted a European Agreement
on the Transmission of Applications for Legal Aid (ETS No. 92),
which introduces a procedure allowing those who have their habitual
residence in the territory of one Party and wish to apply for legal
aid on the territory of another Party to submit their application
in the Party where they have habitual residence. To date, 31 member States
have ratified this Agreement. Further ratifications should be encouraged.
24. There are two different forms of legal aid:
- exemption from or assistance
with all or part of the court fees;
- assistance of a lawyer who provides advice and represents
an individual in court either for free or for a subsidised fee.
25. During the hearing organised on 27 January 2015 by the Committee
on Equality and Non-Discrimination, Mr Stéphane Leyenberger, Secretary
of CEPEJ, indicated that all Council of Europe member States had
legal aid mechanisms both in criminal law and civil law fields but
underlined that only two member States, France and Luxembourg, provided
free access to all courts for all cases.
26. Legal aid systems vary considerably among Council of Europe
member States.
In many
central and eastern European States and in Italy, the use of legal
aid is predominant in criminal law; it is balanced between legal
aid for criminal cases and legal aid for civil cases mainly in the
north of Europe (Albania, Denmark, England and Wales, Iceland, Norway),
while it is predominant for civil law cases in other member States (Germany,
France, the Netherlands, Switzerland). Moreover, most member States
provide individuals with both types of legal aid. CEPEJ also underlines
that legal aid is being generalised and extended: 26 member States
have increased their budget for legal aid and only 8 have decreased
it, in the context of overall budget cuts (for example England and
Wales, the Netherlands, Spain).
27. The eligibility criteria normally include a means test. In
some cases, and only for non-criminal matters, there is also a merits
test, assessing the legal merits of the case and its likely outcome.
Legal aid is usually granted according to the individual’s financial
means. In some countries, certain categories of people are eligible
for legal aid without prior examination (Bosnia and Herzegovina,
Croatia, Latvia, Monaco, Montenegro, Spain, Turkey), while in some
others, there are comprehensive eligibility frameworks which define
income thresholds and categories of beneficiaries (England and Wales,
Hungary, Lithuania, Scotland).
28. It is clear that in order to guarantee access to an effective
remedy, rules on eligibility must be formulated so as to ensure
that certain categories of people, and especially people with low
income, have access to adequate assistance. In the context of the
current economic crisis, it is advisable that States evaluate the impact
of their eligibility criteria and, if appropriate, lower the threshold.
29. The issue of legal aid has been the object of much controversy
in the United Kingdom, the country with the highest expenditure
in this area amongst all Council of Europe member States. The first
reports on the implementation of the Legal Aid, Sentencing and Punishment
of Offenders Act of 2012 show that the reform resulted in the exclusion
of whole categories of law from the scope of legal aid, such as
family cases where there is no proof of domestic violence, forced
marriage or child abduction. This has had a major impact on certain
categories of the population, in particular victims of abuse, as
they often face difficulties in providing the evidence required
to access legal aid, leading to many victims having to represent
themselves or simply giving up on their rights to access justice.
I should like to underline that providing high standard legal aid
to those in need and limiting the costs of justice are both legitimate
concerns. The former, however, as an international human rights
obligation, should undoubtedly prime over the latter. It should
therefore be ensured that the implementation of the reform does
not undermine the principle of equality before the law and preserves
equal access to justice.
30. I should like to mention that, in December 2012, the United
Nations General Assembly adopted the
United
Nations Principles and Guidelines on Access to Legal Aid in Criminal
Justice Systems.
These documents go beyond existing
regional or international standards in several respects. They contain
generous criteria for legal aid eligibility, as they encourage States
to provide legal aid regardless of the person’s means, if the case
is particularly urgent or complex, or if the penalty the person
faces is very severe. These documents also recognise paralegals
as legal aid providers and pay attention to the needs and rights
of victims and witnesses in criminal matters. Furthermore, they
ask States to incorporate “a gender perspective into all policies,
laws, procedures, programmes and practices relating to legal aid
to ensure gender equality and equal and fair access to justice”.
I encourage Council of Europe member States to abide by these Principles
and Guidelines.
2.4. Legal standing
31. An important element in the context of access to
justice is legal standing (locus standi),
that is who is entitled to initiate legal proceedings, either before
a court or before a non-judicial body. There are a variety of situations:
at the one end of the spectrum, only the individuals who have suffered
harm or their direct representatives can initiate a case; at the
other end, also third parties who are not connected with the individual who
has suffered harm can do so, because the issue is of public interest.
Between these two extremes, there are situations in which certain
third parties having an interest in a particular legal issue may
bring a case for breaches of the law within their area of expertise.
32. The European Convention on Human Rights limits legal standing
to those having victim status. Article 34 provides that: “The Court
may receive applications from any person, non-governmental organisation
or group of individuals claiming to be the victim of a violation
by one of the High Contracting Parties of the rights set forth in
the Convention or the Protocols thereto.”
33. The Court also distinguishes between direct victims (those
who are directly affected by a violation), indirect victims (those
who are indirectly affected by the alleged violation, for instance
people who are relatives of the victim) or potential victims (those
who may be affected by the alleged violation, such as groups of
people who risk being directly affected by certain legal provisions).
34. The approach of the Court in interpreting victim status has
been criticised as being overly strict, especially in relation to
people with intellectual disabilities, who in most member States
are deprived of legal capacity.
In this regard, the Court has recognised
that the deprivation of legal capacity, even partial, has serious
implications in terms of access to a court.
The Parliamentary Assembly, in
Resolution 1642 (2009) on access to rights for people with disabilities and
their full and active participation in society and
Resolution 2039 (2015) on equality and inclusion for people with disabilities
has invited member States to guarantee that people with disabilities
retain and exercise legal capacity on an equal basis with other
members of society.
35. A very important case in this matter has been recently examined
by the Court’s Grand Chamber. It concerns the death of a young man
of Roma origin, Valentin Câmpeanu, who was suffering from HIV and severe
intellectual disability, in a psychiatric hospital after living
all his life in institutions in Romania. The Centre for Legal Resources
– an NGO – lodged a case against Romania before the Court.
The
applicant argued that the Court should demonstrate more flexibility
when interpreting its rules, by allowing non-governmental organisations,
in some circumstances, to have legal standing on behalf of disabled
victims even in the absence of a specific authorisation. The Court
held that, in the exceptional circumstances of the case, and bearing
in mind the serious nature of the allegations, it was open to the
NGO to act as a representative of Mr Câmpeanu, even though the organisation
was not itself a victim, or even an indirect victim, of the alleged
violations of the Convention. The Court also underlined that mental
illness cannot justify impairing the very essence of the right to
judicial review.
36. In my view, this judgement is a first step towards more flexibility
in the rules on legal standing before the European Court of Human
Rights (“the Court”). However, the decision taken by the Court in
this case is specifically linked to its particular circumstances.
I am convinced that these rules should generally be made more flexible
in order to guarantee effective human rights protection for individuals
who encounter daunting obstacles when seeking redress. I would propose,
therefore, that this issue be included and given attentive consideration
during the current discussions on the reform of the Court.
37. Nevertheless, it should be noted that the Court has shown
great flexibility as regards the legal standing of people with intellectual
disabilities, by allowing people with disabilities who had been
deprived of their legal capacity under domestic law, and even against
the wishes of their guardian, to validly submit an application
and by exempting them from the requirement
to exhaust domestic remedies before filing an application when they
had been unable to do so as a consequence of the deprivation of
their legal capacity.
Moreover, the Court
has used Rule 39 of the Rules of Court to request States to take
interim measures in cases brought by people with disabilities requiring
the removal of impediments that hinder the right of access to courts.
38. Unlike the European Court of Human Rights, direct access to
the European Committee of Social Rights (ECSR) is possible also
for third parties who are not directly victims of a violation of
a right set out in the European Social Charter (revised) (ETS No.
163). By becoming Parties to the Additional Protocol to the European
Social Charter providing for a system of collective complaints (ETS
No. 158), States authorise international and national organisations
of employers, trade unions and international NGOs enjoying participatory
status with the Council of Europe to submit complaints against them.
States may also authorise national
NGOs to lodge complaints. To date, 113 collective complaints have
been submitted. It has been noted that “[d]ue to the collective
nature of the mechanism, the breaches complained of tend to be of
a systematic rather than an individual nature”.
39. Council of Europe member States should give consideration
to accepting this system of collective complaints by becoming Parties
to the Additional Protocol of 1995 or by accepting Article D of
the European Social Charter (revised). Moreover, additional efforts
should be made to inform organisations working for the defence and
promotion of the rights of groups that are more vulnerable to discrimination
on the system of collective complaints and on how to register for
it.
40. At national level, the situation differs greatly among Council
of Europe member States.
In the majority of them, non-governmental
organisations or trade unions can bring cases to court with the
victim’s permission. In a few countries, for instance in Bulgaria,
Hungary, Italy and the Slovak Republic, they can do so without the consent
of the victim, but only in specific circumstances, such as for “class
actions”, which permit one or more plaintiffs to file a lawsuit
against the same defendant on behalf of a larger group.
41. In some Council of Europe member States, equality bodies can
represent individuals in legal proceedings and can even initiate
legal proceedings in their own name. This seems to me a valuable
measure to improve access to justice, since equality bodies are
the best placed to present cases involving widespread discrimination,
issues of public interest and situations in which there are no clearly
identifiable victims.
This course of action
could also help shape public opinion and ultimately influence the
legislative process.
2.5. Under-reporting
42. Many reports show that under-reporting is widespread.
The Fundamental Rights Agency found that people from minorities
did not report to the police between 57% and 74% of incidents of
assault or threats even if they regarded these incidents as serious.
Of those respondents who in the
last year had felt personally discriminated against because of their
sexual orientation or gender identity, just one in 10 had reported
to the authorities the most recent incident of discrimination that
they had experienced.
43. Several elements contribute to under-reporting. One common
feature is the lack of trust in the authorities. A recent report
by Amnesty International
concerning
hate crimes in Bulgaria shows that 43% of these crimes committed
in 2010 had not been reported to the police. The report highlights
that the lack of trust in the authorities and the fear of further
victimisation, including fear of abuses by the police, are the main reasons
for under-reporting and are reflected among a variety of groups
(Roma, LGBTs, refugees or migrants). This matter has been thoroughly
examined by Mr David Davies in his report on “Tackling racism in
the police”.
Among the recommendations made by the rapporteur
and endorsed by the Assembly in
Resolution 1968 (2014) – which I fully share –, I wish to stress the importance
of independent complaint mechanisms as well as adequate training
of police officers and the need to enforce sanctions against police
officers who are responsible for racist or intolerant behaviour.
Moreover, the report of Amnesty International underlines that the lack
of appropriate State responses, including a failure to investigate
after the crime has been reported, could also be a deterrent to
reporting. Indeed, why would victims report a crime to the police
when they know that no sufficient care will be taken of their case?
In this regard, it is crucial that member States ensure that a thorough investigation
is conducted into each reported crime.
44. Another common feature is the lack of legal awareness. It
is essential to ensure that the victims have effective access to
the mechanisms of justice and are provided with information about
counselling and legal assistance. In an LGBT survey conducted by
the FRA, 30% of respondents said that the reason they did not report
the last incident of discrimination they had experienced was that
they did not know how and to whom they could complain.
This figure echoes
the findings of the FRA survey on violence against women in the European
Union:
36% of
the respondents did not know any laws or initiatives to prevent
violence against women, while 28% were not aware of the existence
of laws or initiatives to protect them against it. Hence the importance
to continue awareness-raising activities amongst the general public.
The case of Spain illustrates that more visibility can lead to better
justice. A good example is the first Discrimination and Hate Crime Prosecutor,
who was first appointed in the province of Barcelona in 2009 and
since taking up office, Mr Miguel Angel Aguilar has participated
in numerous events and raised the public profile of his office.
The number of cases that have been lodged has gone up from a handful
to 226 in three years. Following this example, since 2013, each
Spanish province has a special prosecutor on this matter.
45. The fear of incurring costs is also a deterrent. This is a
special problem in countries, such as Greece, where a fee is required
to report a minor offence, even if the misdemeanour is hate-motivated.
It can also be a general problem given that most member States require
the losing party to pay for the other party’s costs with a view
to filtering out unfounded cases. However, as the United Nations
Human Rights Committee has clarified, “the imposition of fees on
the parties to proceedings that would
de
facto prevent their access to justice might give rise
to issues under Article 14” of the International Covenant on Civil
and Political Rights (equality before the courts).
In addition, the European
Court of Human Rights has ruled that applying court fees before instituting
proceedings may be in breach of the right to an effective remedy.
46. Migrants in an irregular situation refrain from reporting
crime and discrimination to the police, for fear of being returned.
I would like to stress that the enjoyment of certain basic rights
is not conditional upon legal status. In this respect, the European
Commission against Racism and Intolerance (ECRI) has unequivocally recommended
that irregular migrants who co-operate in judicial proceedings should
not be expelled. A directive of the European Union, establishing
minimum standards on the rights, support and protection of victims
of crime,
stresses that it does not
address the conditions of residence of victims of crime in the territory
of the member State and that States should take the necessary measures
to ensure that the rights set out in the directive are not made
conditional on the victim’s residence status in their territory.
In addition, it is interesting to recall that the Spanish Constitutional
Court has held that even foreigners who are not legally resident
in Spain are entitled to receive legal aid, or representation by
an assigned counsel, in all proceedings where they are a party and
not only in proceedings regarding their asylum application or expulsion.
47. Lengthy procedures or uncertainty about their length can be
a deterrent for reporting a case. According to the case law of the
European Court of Human Rights, the right to a fair trial set out
in Article 6 of the European Convention on Human Rights encompasses
the right to a hearing within a reasonable time. As the Court pointed
out, “[t]he Convention places a duty on the Contracting States to
organise their legal systems so as to allow the courts to comply
with the requirements of Article 6 § 1 including that of trial within
a ‘reasonable time’”.
Member
States should enhance reporting by ensuring that victims can foresee
a resolution of their complaint by, for instance, implementing mechanisms
able to deal with specific cases, such as discrimination cases,
in a swift and effective manner that ensures the respect of legal
safeguards. In this regard, it is interesting to underline that
Belgium has set up injunction procedures that “can lead to a quick
court determination on whether there has been a violation of the
prohibition to discriminate followed by an order to end the practice”.
3. Ensuring access
to justice for all
48. Ensuring effective access to justice for all means
taking into account the specific challenges encountered by different
groups. Recognising that some groups of society are at a particular
disadvantage is a crucial first step towards achieving access to
justice for them.
3.1. Victims of multiple
discrimination
49. Some people share a combination of characteristics
that may trigger discrimination and are therefore particularly subject
to unequal treatment. The multiple facets of an individual may well
all be grounds of discrimination. For instance, a refugee woman
may face racial discrimination but also gender discrimination, on
separate occasions (sequential discrimination), at the same time
but at several levels (additive discrimination) or by the effect
of the interaction of all grounds of discrimination with each other
(intersectional discrimination). To show the full extent of the
discrimination experienced, the combined effect of all grounds for discrimination
has to be considered. It should always be kept in mind that each
individual is unique and that the effects of several discrimination
grounds can be combined and make it more difficult for some people
to access their rights.
50. Awareness of multiple discrimination is quite recent but constantly
increasing, in both social and legal contexts. However, there is
no international applicable legal framework yet:
the existing legislation
tends to focus on one ground of discrimination at a time. At national
level, only a restricted number of States have incorporated the
notion of multiple discrimination or of discrimination on more than
one ground into their legislation (for example Austria, Bulgaria,
Germany, Greece, Italy and Romania).
Among
those which have done so, the scarcity of case law in which multiple
discrimination has been claimed results both in a lack of guidance
for legal professionals dealing with these cases and in a slow evolution
of the situation.
51. Article 14 of the European Convention on Human Rights as well
as Additional Protocol No. 12 on equality and non-discrimination
prohibit discrimination on a variety of grounds. Therefore, there
is no formal barrier that would prevent a claim based on several
grounds of discrimination. However, the Court has never mentioned the
notion of multiple discrimination in its case law. In 2012, the
Court referred to “the applicant’s particular vulnerability inherent
in her position as an African woman working as a prostitute”
to
find a violation of Article 14 in conjunction with Article 3, but
that is as far as it went. In order to properly reflect the reality
of the situation faced by victims of multiple discrimination, each
ground of discrimination should be examined simultaneously by the
Court, which should therefore develop its interpretation of the
European Convention on Human Rights in this respect.
52. No specific study has been conducted with regard to the impact
of multiple discrimination on access to justice. However, it is
manifest that the intersection of multiple grounds of discrimination
makes it even more difficult to handle the obstacles faced by certain
people. In such situations, discrimination grounds should be addressed
as a whole and not one by one as it is their sum that creates the
discrimination. In this regard, I consider that particular attention
should be given to this matter.
53. In 2012, ECRI recommended that the governments of member States
“enact legislation against discrimination on more than one ground
to provide protection from multiple forms of discrimination”.
However, this recommendation
remains restricted to the field of employment. Considering the general
gap in legislation regarding multiple discrimination, member States
should consider adopting adequate legislation to ensure that discrimination
on more than one ground is legally addressed, in order to ascertain
that all categories of people have equal access to justice.
3.2. Women’s access
to justice
54. That justice is out of reach for many women is a
fact, acknowledged by authorities and evidenced by scores of reports.
Currently, it is a focus
of the attention of the Council of Europe and other international bodies,
such as the Committee of the Convention on the Elimination of all
Forms of Discrimination against Women (CEDAW) and the European Union.
55. In 2010, the Council of Europe’s Steering Committee for Equality
between Women and Men (CDEG) decided to look into this matter, instructing
the Secretariat to collect data on the gender breakdown of cases brought
before the European Court of Human Rights. The results showed very
clearly that women are under-represented amongst applicants, including
in cases concerning gender equality.
56. Pursuing the work of its predecessor, the Council of Europe’s
Gender Equality Commission (GEC) commissioned in 2013 a feasibility
study on equal access of women to justice, to collect more information
on the situation in several Council of Europe member States and
make proposals for further action.
The study highlighted that equal
rights do not guarantee
de facto gender
equality, given that, in practice, women do not possess the same
access to opportunities as men and cannot necessarily assert their
rights to the same extent. Many barriers to women’s access to justice
were underlined in the study: legal barriers, such as the existence of
discriminatory laws or provisions and the lack of awareness of protection
mechanisms, social and economic barriers linked to unequal power
relations in favour of men, and cultural barriers built on stereotypes
and prejudices.
57. Working with member States towards guaranteeing equal access
of women to justice has also been included amongst the five objectives
of the Council of Europe
Gender
Equality Strategy (2014-2017).
The strategy establishes that action
in this area will analyse national and international frameworks
to gather data and identify the obstacles that women encounter in
gaining access to the national courts and to international justice;
identify, collect and disseminate existing remedies and good practices
to facilitate women’s access to justice; and make recommendations
to improve the situation. The GEC and the French authorities organised a
hearing on “Access to justice for women victims of violence” in
December 2013 which addressed the numerous barriers to women’s access
to justice and put forward good practices to tackle these barriers.
The need to address the issues of vulnerability and credibility
of women victims of violence and their need for information and
free legal assistance was underlined, as well as the importance
of facilitating access to justice through specialised law enforcement.
More recently, in June 2014, the GEC hold a seminar on “Tackling
the gaps in research and lack of data disaggregated by sex concerning
women’s equal access to justice”, during which the importance of
the collection of reliable and comparable data in order to elaborate
evidence-based policies and legislation was stressed. Recommendations
to tackle gaps in research and lack of data disaggregated by sex
concerning women’s access to justice were put forward.
58. I am pleased that the starting point of the GEC analysis revolves
around bridging the information gap. It is indeed difficult to assess
the impact of barriers on women’s access to justice due to the lack
of gender disaggregated data and gender impact analysis of different
laws. This gap should be filled with a view to governments making
informed and gender-sensitive policy choices in the area of efficiency
of justice.
59. It should also be stressed that, obviously, women are not
a uniform group. Specific situations create additional barriers
to women’s access to justice. This is the case, in particular, when
gender intersects with other criteria which potentially increase
discrimination, such as having a disability, belonging to a minority
group or being a migrant, especially when in an irregular situation.
The same can be said for physical barriers such as living in a remote
or rural area.
60. Women who are victims of violence occupy a special place.
As underlined in the 2013 GEC feasibility study, “[c]riminal procedure
and court administration generally do not allow for the particular
vulnerability of women victims of sexual violence [and domestic
violence] to be taken into consideration, meaning their specific needs
are often not accommodated”.
In addition to the same barriers
encountered by other women, they also experience social and cultural
pressure not to report violence to the police, or are reluctant
to do so because they fear that the justice system will fail to
protect them adequately. Austria has managed to successfully counter
these obstacles by adopting a specific law in 2009 – the Second
Act for Protection against Violence – that ensures psychosocial
and legal assistance in courts for victims of violence during criminal
and civil proceedings. Assistance is provided by victims’ protection
organisations, intervention centres and violence prevention centres.
Psychosocial court assistance includes accompanying the victim to
the police when making a report, informing them about and preparing
them for criminal proceedings, and accompanying them to questioning
at court and to the trial. Legal court assistance consists in legal
representation in criminal proceedings by a lawyer for the protection
of the rights of the victim. It should be noted that, during criminal proceedings,
the legal assistance is free of charge.
61. Under-reporting cannot be estimated precisely, but the 2014
survey of the FRA on violence against women indicated that “only
14% of women reported their most serious incident of intimate partner
violence to the police, and 13% reported their most serious incident
of non-partner violence to the police”.
At the same time,
the conviction rate remains low and many cases are abandoned. Iceland
has addressed this issue by setting up, in early 2013, a co-operation
mechanism between the police and social services: when there is suspicion
about domestic violence, the police request additional assistance
from social workers to establish a contact with the victim, provide
a lawyer for the victim and can order legal protective measures,
namely restraining orders or expulsion from home. This pilot project
is considered to be a success by the Icelandic authorities.
Member
States should be encouraged to increase both co-operation and co-ordination
between existing structures in order to allow women to trust the
authorities for their protection, leading to more reporting and
more cases being brought before the courts, all the while avoiding
extra costs.
62. Lastly, I should like to refer to the Council of Europe Convention
on Preventing and Combating Violence against Women and Domestic
Violence, which entered into force in August 2014. The convention
provides a comprehensive and legally binding framework aimed at
ending violence against women. Although it does not specifically
address women’s access to justice, the convention includes numerous
provisions aimed at facilitating the access to justice of victims
of violence, in particular by requiring member States to provide adequate
legal information (Article 19), to encourage reporting (Article
27), to provide victims with adequate civil remedies (Article 29)
and to ensure that investigations and judicial proceedings are carried
out without undue delay (Article 49). I therefore encourage member
States to step up their efforts towards signing and ratifying the
convention, if they have not yet done so, and to take all appropriate
measures to effectively implement the convention at national level.
3.3. Victims of crime
63. There is a need not only to prevent crime, but at
the same to properly support the individuals who do fall victims
of a crime. In this regard, the Committee of Ministers has called
on member States to “ensure the effective recognition of, and respect
for, the rights of victims” and stated that States should ensure,
in particular, that appropriate information, protection and support
is made available to victims.
The
recommendation also stresses that victims should be protected, as
far as possible, from secondary victimisation and that States should,
in this regard, develop policies to identify and combat repeat victimisation.
64. The victims of crime are entitled to be informed about the
available specialised bodies that are providing psychological counsel
or any kind of assistance they might need, the criminal prosecution
body to whom they have to lodge a complaint, the right to legal
aid and the competent institution in this field, legal requirements and
procedure applicable in terms of legal aid, procedural rights of
injured people and the procedure for obtaining financial compensation
from the State.
65. At European Union level, there is an extensive legislative
framework in terms of protection of victims of crime. Under the
provisions of Directive 2012/29/EU establishing minimum standards
on the rights, support and protection of victims of crime,
the
victims of crime:
- are recognised
and treated with respect and dignity;
- are protected from further victimisation and intimidation
from the offender and further distress when they take part in the
criminal justice process;
- receive appropriate support throughout the proceedings
and have access to justice;
- have adequate access to financial compensation.
66. The country reports by ECRI describe the obstacles faced by
people belonging to minorities and migrants in access to justice.
Since the ongoing reporting cycle, they also cover the situation
of LGBT people. A number of surveys conducted by the FRA complement
this information, providing the victims’ perception as well as information
on the vulnerability of these groups to discrimination and crime.
67. For instance, one in four people from a minority group said
they had been a victim of a crime at least once in the 12 months
preceding the survey. On average, minorities are victims of personal
theft and assault or threat more often than the majority population.
More visible groups have, on average, higher levels of victimisation
than immigrant or minority groups who look similar to the majority
population. More than one in four respondents considered that they
had been victims of racially motivated crimes. As regards the LGBT survey,
47% of respondents said that they had felt personally discriminated
against or harassed on the grounds of sexual orientation in the
year preceding the survey. A majority of respondents who were attacked
in the past year said that the attack or threat of violence happened
partly or entirely because they were perceived to be LGBT (59%).
68. The justice system, in particular criminal law, has developed
safeguards for individuals who are charged with an offence. Although
this is a major achievement which should not be put in question,
it is necessary to pay attention at the same time to the situation
of victims, not only to address their protection needs but also
to encourage them to seek redress and to participate in the proceedings
until their conclusion. Victims should be protected against secondary
victimisation. In a nutshell, justice should be more victim-friendly.
In this regard, the CEPEJ observed that legal aid for victims of
offences can be granted in 37 member States.
69. Moreover, victims of crime should also have access to justice
in a language they can understand. This is especially true for people
belonging to linguistic minorities. The legal arrangements for minorities
definitely require considerable improvement in Council of Europe
member States and the use of the regional or minority languages
concerned before the courts should be adequately ensured. Article
9 of the European Charter for Regional or Minority Languages (ETS
No. 148) provides for safeguards as regards the use of these languages,
both in the criminal proceedings and in
the civil and administrative courts. As a result of the shortcomings
in the implementation of the guarantees of Article 9 of the Charter,
the Committee of Experts of the European Charter for Regional or
Minority Languages made recommendations for the contracting States regarding
notably the access to information of people belonging to linguistic
minorities, the availability of translators and interpreters, and
the capacity of computer programmes to use regional and minority
languages. It was also recommended that States make sure that dialectal
differences do not dissuade citizens from using regional and minority
languages before judicial authorities.
70. The 2012 Directive of the European Union on establishing minimum
standards on the rights, support and protection of victims of crime
recognises that “[j]ustice cannot be effectively achieved unless
victims can properly explain the circumstances of the crime and
provide their evidence in a manner understandable to the competent
authorities” and recommends that translation is made available,
free of charge, when needed.
71. Whether victims will want to embark on a legal action
or not will inevitably depend on its likely outcome. If the justice
system systematically fails to render justice, why should victims
resort to it? Indeed, some professionals who assist victims of violence
admit that they sometimes advise them against reporting it to the authorities,
because the process that ensues is fraught with difficulties and
the outcome is uncertain. It is necessary, therefore, to improve
the quality of justice by:
- providing
training to the police, the judiciary and legal professionals;
- ensuring that the legal framework is in line with the
highest international standards;
- monitoring the impact of legislation on different groups;
- incorporating a gender dimension.
4. Conclusions
72. Equal treatment in access to justice has to become
a reality and Council of Europe member States, as such, need to
implement means to remove existing obstacles to access to justice
and ensure that their citizens have equal access to justice, irrespective
of their wealth or status.
73. With this report, I intended to raise awareness about the
multiple barriers to access to justice encountered by many categories
of people. I truly consider that where people do not trust the system
to protect and assist them when their rights are infringed, where
people are not aware of their rights or do not have access to information
on them, where the justice system is not accessible for physical,
linguistic or financial reasons, where the specific situation of
some categories of people is not taken into account, therefore preventing
them from accessing their rights or enforcing them, there is no
recognition that everyone is entitled to the protection of the law
and, therefore, no democratic society.
74. The particular vulnerability of certain categories of people
should be borne in mind at all times, along with the fact that some
of them may face discrimination based on several grounds that may
combine resulting in more obstacles to overcome. In this regard,
specific policies should be implemented to tackle the effects of discrimination.
A better reflection should be lead on how to improve, in practice,
access to justice for these categories, in particular as concerns
awareness of rights, trust in justice institutions and access to
legal assistance and to courts. In this respect, Council of Europe
member States should draw from existing good practices implemented
by other member States.
75. Moreover, alternative dispute resolution is increasingly identified
as a principal strategy in reducing access to justice barriers.
In this regard, informal justice mechanisms should be strengthened
and consideration should be given to using them in combination with
formal mechanisms with a view to maximising access to justice. Moreover,
the increasingly important role of NGOs in providing assistance
to people facing obstacles in accessing justice should be acknowledged
and enhanced, notably by allowing them to appear in court in some
circumstances.
76. In addition, and with the aim of strengthening access to justice
while avoiding additional costs that would result from the creation
of new entities charged with the development of access to justice,
the setting up of co-operation mechanisms both between the civil
society and administrative institutions and among existing administrative
institutions should be considered.
77. Access to justice is not only an individual right allowing
those who consider that their rights have been violated to enforce
them and seek redress. It is also a precondition for the rule of
law and an instrument to realise inclusive and equal societies.
For the Council of Europe, it is an issue that lies at the very
heart of its system of human rights protection.