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: ECtHR (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) 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.

Right to an effective remedy and to a fair trial 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 Right to effective access to a dispute resolution body Right to a fair proceeding Right to timely resolution of dispute Right to adequate redress 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: “Free Movement Directive” 2004/38 “Racial [ethnic origin] Equality Directive” 2000/43 Mediation directive (2008/52) 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 The relationship between the 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: 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 isn’t any 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.

ECtHR 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 they are proportionate to achieve a legitimate aim 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 ECHR (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 practices: Simplified and less formalistic procedural rules (like mediation) E-justice initiatives Generous rules on legal standing Availability of redress other than compensation Pro bono initiatives