Condensed: Everyone has the right of access to the courts in cases of determination of criminal charges and rights and obligations in a suit of law such as judicial procedures in the areas of contract, property and torts as well as equivalent notions in the area of administrative law. The right can be invoked by any person in the territory. Any distinctions with regard to accessto courts must be based on law which can be justified on objective and reasonable grounds. Restrictions which may constitute a violation of the right to access to court include excessive costs awards against private litigants who seek to vindicate their rights and restrictive court fees. Comprehensive: Article 14(1) of the ICCPR provides inter alia: ‘In the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to fair and public hearing by a competent, independent and impartial tribunal established by law.’ This provision entails that everyone has the right of access to the courts in cases of determination of criminal chargesand rights and obligations in a suit of law such as judicial procedures in the areas of contract, property and torts as well as equivalent notions in the area of administrative law.[1] Regional human rights treaties also include provisions that have been interpreted to include access to judicial, administrative and other mechanisms.[2] The phrase ‘determination of … rights and obligations in a suit of law’ encompasses according to the HRC:[3] (a) judicial procedures aimed at determining rights and obligations pertaining to the areas of contract, property and torts in the area of private law, as well as (b) equivalent notions in the area of administrative law such as the termination of employment of civil servants for other than disciplinary reasons, the determination of social security benefits or the pension rights of soldiers, or procedures regarding the use of public land or the taking of private property. In addition, it may (c) cover other procedures which, however, must be assessed on a case by case basis in the light of the nature of the right in question. The right can be invoked by any person in the territory. According to the HRC:[4] The right of access to courts and tribunals and equality before them is not limited to citizens of States parties, but must also be available to all individuals, regardless of nationality or statelessness, or whatever their status, whether asylum seekers, refugees, migrant workers, unaccompanied children or other persons, who may find themselves in the territory or subject to the jurisdiction of the State party. Any distinctions with regard to access to courts and tribunals must be based on law which can ‘be justified on objective and reasonable grounds'.[5] In Ato del Avellanal v Peru a law providing that only men could represent matrimonial property before courts was challenged. The HRC held that the law violated article 14 of the ICCPR as it excluded married women from suing in court.[6] Restrictions which may constitute a violation of the right to access to court include excessive costs awards against private litigants who seek vindication of their rights [7] and restrictive court fees.[8] [1] HRC General Comment 32 para 9.
[2] ACHPR art 7(1); ACHR art 8(1); ECHR art 6(1). On the interpretation of the ECHR see Golder v UK application 4451/70 (ECtHR 1975).
[3] HRC General Comment 32 para 16. Termination of employment for disciplinary reasons may also fall within ‘civil suits’, see Casanovas v France communication 441/1990 (HRC 1994) para 5.2.
[6]Ato del Avellanal v Peru communication 202/1986 (HRC 1989) para 10.1.
[7] HRC, General Comment 32, para II; See further Äärelä and another v Finland, communication 779/1997 (HRC 2001) para 7.2; in other circumstances substantial cost awards may not constitute a violation see Lindon v Australia communication 646/1995 (HRC 1998) para 6.4.
Everyone has the right of access to the courts in cases of determination of criminal charges and rights and obligations in a suit of law such as judicial procedures in the areas of contract, property and torts as well as equivalent notions in the area of administrative law.
The right can be invoked by any person in the territory. Any distinctions with regard to access to courts must be based on law which can be justified on objective and reasonable grounds. Restrictions which may constitute a violation of the right to access to court include excessive costs awards against private litigants who seek to vindicate their rights and restrictive court fees.
Comprehensive:
Article 14(1) of the ICCPR provides inter alia: ‘In the determination of any criminal charge against him, or of his rights and obligations in a suit of law, everyone shall be entitled to fair and public hearing by a competent, independent and impartial tribunal established by law.’ This provision entails that everyone has the right of access to the courts in cases of determination of criminal charges and rights and obligations in a suit of law such as judicial procedures in the areas of contract, property and torts as well as equivalent notions in the area of administrative law.[1] Regional human rights treaties also include provisions that have been interpreted to include access to judicial, administrative and other mechanisms.[2]
The phrase ‘determination of … rights and obligations in a suit of law’ encompasses according to the HRC:[3]
(a) judicial procedures aimed at determining rights and obligations pertaining to the areas of contract, property and torts in the area of private law, as well as
(b) equivalent notions in the area of administrative law such as the termination of employment of civil servants for other than disciplinary reasons, the determination of social security benefits or the pension rights of soldiers, or procedures regarding the use of public land or the taking of private property. In addition, it may
(c) cover other procedures which, however, must be assessed on a case by case basis in the light of the nature of the right in question.
The right can be invoked by any person in the territory. According to the HRC:[4]
The right of access to courts and tribunals and equality before them is not limited to citizens of States parties, but must also be available to all individuals, regardless of nationality or statelessness, or whatever their status, whether asylum seekers, refugees, migrant workers, unaccompanied children or other persons, who may find themselves in the territory or subject to the jurisdiction of the State party.
Any distinctions with regard to access to courts and tribunals must be based on law which can ‘be justified on objective and reasonable grounds'.[5] In Ato del Avellanal v Peru a law providing that only men could represent matrimonial property before courts was challenged. The HRC held that the law violated article 14 of the ICCPR as it excluded married women from suing in court.[6]
Restrictions which may constitute a violation of the right to access to court include excessive costs awards against private litigants who seek vindication of their rights [7] and restrictive court fees.[8]
[1] HRC General Comment 32 para 9.
[2] ACHPR art 7(1); ACHR art 8(1); ECHR art 6(1). On the interpretation of the ECHR see Golder v UK application 4451/70 (ECtHR 1975).
[3] HRC General Comment 32 para 16. Termination of employment for disciplinary reasons may also fall within ‘civil suits’, see Casanovas v France communication 441/1990 (HRC 1994) para 5.2.
[4] HRC General Comment 32 para 9.
[5] As above.
[6] Ato del Avellanal v Peru communication 202/1986 (HRC 1989) para 10.1.
[7] HRC, General Comment 32, para II; See further Äärelä and another v Finland, communication 779/1997 (HRC 2001) para 7.2; in other circumstances substantial cost awards may not constitute a violation see Lindon v Australia communication 646/1995 (HRC 1998) para 6.4.
[8] Cantos v Argentina (IACtHR 2002) para 54.