4.5. Access to justice – Handbook on European non-discrimination law

Handbook on European non-discrimination lawContents

Under EU law and the ECHR,[374] the relation of the right to access to justice to the prohibition of discrimination can be seen from two perspectives:

(i) Access to justice in cases of discrimination: this relates to the possibility of obtaining redress in situations where individuals have been discriminated against. This situation is discussed in Section 6.4 (Enforcement of non-dis- crimination law).[375]

(ii) Non-discriminatory access to justice: this relates to barriers to justice faced by certain persons irrespective of whether they were victims of discrim- ination. It means that ensuring effective access to justice for all requires that the justice system be organised in such a way that nobody is prevent- ed from accessing justice for physical, linguistic, financial or other reasons. For example, financial barriers for persons who do not have sufficient means to initiate court proceedings can be addressed through a system of legal aid.[376]

Under EU law, access to justice is set out in Article 47 of the EU Charter of Fundamental Rights. Moreover, Article 20 confirms that everybody is equal before the law and Article 21 prohibits discrimination.

In relation to access to justice under EU law, the Committee on the Rights of Persons with Disabilities stressed that the EU should take appropriate action to combat discrimination faced by persons with disabilities in accessing justice,

by ensuring that full procedural accommodation and funding for training justice personnel on the Convention are provided in its Member States.[377]

Under the ECHR, the right of access to justice is guaranteed by Article 13 and in the context of the right to a fair trial under Article 6. The ECtHR has dealt with several cases relating to discrimination in access to justice.

Example: In Paraskeva Todorova v. Bulgaria,[378] the national courts, when sentencing an individual of Roma origin, expressly refused the prosecution’s recommendation for a suspended sentence, stating that a culture of impunity existed among the Roma minority and implying that an example should be made of the particular individual. The ECtHR found that this violated the applicant’s right to a fair trial in conjunction with the right to be free from discrimination.

Example: In Moldovan and Others v. Romania (No. 2),[379] it was found that excessive delays in resolving criminal and civil proceedings (taking seven years to deliver a first judgment) amounted to a violation of Article 6. The delays were found to be due to a high number of procedural errors and taken in conjunction with the pervading discriminatory attitude of the authorities towards the Roma applicants, it was found to amount to a violation of Article 14 in conjunction with Article 6 (and 8).

Example: In Anakomba Yula v. Belgium,[380] national law, which made it impossible for the applicant to obtain public assistance with funding a paternity claim on the basis that she was not a Belgian national, was found to amount to a violation of Article 6 in conjunction with Article 14. This is not to suggest that non-nationals have an absolute right to public funding. In the circumstances, the ECtHR was influenced by several factors, including that the applicant was barred because she did not have a current valid residence permit, even though at the time she was in the process of having her permit renewed. Furthermore, the ECtHR further observed that a one-year time bar existed in relation to paternity cases, which meant that it was not reasonable to expect the applicant to wait until she had renewed her permit to apply for assistance.

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374. For detailed information see FRA and CoE (2016), Handbook on European law relating to access to justice, Luxembourg, Publications Office.

375. See also FRA (2012), Access to justice in cases of discrimination in the EU – Steps to further equality, Luxembourg, Publications Office.

376. Council of Europe, Parliamentary Assembly (2015), Equality and non-discrimination in the access to justice, Resolution 2054, 24 April 2015. See also: UN, CEDAW (2015), General Recommendation No. 33 “On women’s access to justice”, CEDAW/C/GC/33, 23 July 2015.

377. UN, Committee on the Rights of Persons with Disabilities (2015), Concluding observations on the initial report of the European Union, CRPD/C/EU/CO/1, 2 October 2015, para. 39.

378. ECtHR, Paraskeva Todorova v. Bulgaria, No. 37193/07, 25 March 2010.

379. ECtHR, Moldovan and Others v. Romania (No. 2), Nos. 41138/98 and 64320/01, 12 July 2005.

380. ECtHR, Anakomba Yula v. Belgium, No. 45413/07, 10 March 2009, discussed in sections 4.5 and 5.7.

Contents

4. Selected areas of protection

4.1. Employment

4.2. Access to welfare and social security

4.3. Education

4.4. Access to supply of goods and services, including housing

4.5. Access to justice

4.6. The ‘personal’ sphere: private and family life, adoption, home and marriage

4.7. Political participation: freedom of expression, assembly and association, and free elections

4.8. Criminal law matters

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