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Equality and non-discrimination in the access to justice

Report | Doc. 13740 | 31 March 2015

Committee on Equality and Non-Discrimination
Rapporteur :
Mr Viorel Riceard BADEA, Romania, EPP/CD
Reference to committee: Doc. 13046, Reference 3917 of 30 November 2012. 2015 - Second part-session


Access to justice is an inherent aspect of the rule of law and a fundamental requirement of any democratic society. However, despite its essential role for the effective enjoyment of rights by individuals, access to justice is too often hampered by both practical and legal obstacles. The lack of legal information, the lack of trust in the authorities and the impact of the economic crisis on legal aid significantly contribute to the persistence of barriers to access to justice.

Legal awareness should be improved by setting up information mechanisms and making the relevant information available in different languages and formats. Measures to rebuild trust in the authorities should be taken in order to enhance reporting. Moreover, States should ensure that legal aid is provided to every person, accused or victim, regardless of their status, and that the rules regarding legal standing do not preclude people from exercising their rights, especially people with disabilities. More generally, the use of alternative dispute resolution mechanisms should be developed, except where gender-based violence is concerned, and the role of NGOs in providing assistance to people facing obstacles in their access to justice should be acknowledged.

The specific challenges encountered by different groups, including women, people belonging to minorities, LGBT people, people with disabilities and migrants, also have to be taken into account in order to ensure effective access to justice for all. In this regard, the fact that some people may face discrimination based on several grounds should be acknowledged and provisions on multiple discrimination should be incorporated in the domestic legal framework against discrimination.

A Draft resolutionNote

1. Access to justice is an inherent aspect of the rule of law and a fundamental requirement of any democratic society. Article 6 of the European Convention on Human Rights (ETS No. 5) provides for the right to a fair trial and Article 13 sets forth the right to an effective remedy. Both these rights are encompassed by the broader concept of access to justice, which refers to the various elements leading to appropriate redress against the violation of a right, such as information on rights and procedures, legal aid, legal representation, legal standing or general access to courts.
2. The Parliamentary Assembly regrets that, despite the essential role of access to justice for the effective enjoyment of rights by individuals, it is too often hampered by both practical and legal obstacles. The lack of legal information, the lack of trust in the authorities, the impact of the economic crisis on legal aid and the incomplete legal framework applicable to specific situations significantly contribute to the persistence of barriers to access to justice.
3. The Assembly is concerned that these barriers are harder to overcome for some groups of people who are particularly subject to discrimination and also less likely to know their rights and existing remedies. In this regard, the Assembly recalls the need to achieve equal access to justice for all by removing obstacles preventing individuals from understanding and exercising their rights and seeking redress in the event of a violation. The Assembly underlines that co-operation between civil society, administrative and judicial entities and law-enforcement bodies is of utmost importance to ensure equal access to justice.
4. In the light of these considerations, the Assembly calls on member States to:
4.1 promote and improve legal awareness by exploring and implementing specific information mechanisms and innovative communication strategies;
4.2 ensure that adequate information on rights and procedures is available in different languages and formats and in plain language, relying on the support of civil society intermediaries for the dissemination of targeted information;
4.3 enhance reporting by developing incentive mechanisms aimed at rebuilding trust in the authorities and reducing the deterrent effect of incurring costs.
5. The Assembly calls on member States to ensure that all categories of people have access to effective remedies and, in particular, to:
5.1 guarantee that legal aid is made available to every person, accused or victim, and take the necessary measures to ensure that categories of people subject to discrimination can receive legal aid;
5.2 sign and/or ratify the European Agreement on the Transmission of Applications for Legal Aid (ETS No. 92), if they have not yet done so;
5.3 use new technologies and ensure that disadvantaged categories of people in this respect have alternative forms of access to justice institutions;
5.4 remove legal obstacles to legal standing, notably by allowing courts to accept the submission of third-party interventions and equality bodies to represent individuals in legal proceedings in certain cases, and by making legal immigration status irrelevant to the conduct of judicial proceedings;
5.5 sign and/or ratify the European Charter for Regional or Minority Languages (ETS No. 148) with a view to guaranteeing throughout the duration of the legal proceedings the full exercise of linguistic rights of people using a regional or minority language before the criminal, civil and administrative courts, in accordance with Article 9 of the Charter;
5.6 sign and/or ratify the European Social Charter (revised) (ETS No. 163) and the Additional Protocol to the European Social Charter providing for a system of collective complaints (ETS No. 158), if they have not yet done so;
5.7 promote and develop the use of quasi-judicial mechanisms and alternative dispute resolution.
6. The Assembly calls on member States to step up their efforts to remove legal, social, economic and cultural barriers to women’s access to justice and, for this purpose, to:
6.1 sign and/or ratify the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (CETS No. 210), if they have not yet done so;
6.2 carry out an in-depth analysis of the impact of gender on access to justice, in particular by collecting gender-disaggregated data, and adopt gender-sensitive policies taking account of the specific barriers to access to justice encountered by women.
7. With regard to categories of people particularly subject to discrimination and in order to ensure that all individuals enjoy full access to justice on an equal basis, the Assembly calls on member States to:
7.1 carry out national studies to evaluate the scale of the obstacles faced by these categories of people and implement tailored measures to tackle them;
7.2 provide specific training to the police and to legal professionals, including lawyers and judges, on discrimination issues;
7.3 step up efforts to combat discrimination faced by these categories of people in exercising their rights and, to this end:
7.3.1 enact or amend legislation to incorporate provisions on multiple discrimination in the existing legal framework against discrimination;
7.3.2 set up and support the work of national equality bodies;
7.3.3 remove obstacles to access to justice for people with intellectual disabilities, in accordance with the case law of the European Court of Human Rights.

B Explanatory memorandum by Mr Badea, rapporteur

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.Note 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).Note
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),Note 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.Note
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.Note 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.Note 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.Note
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.Note 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.Note 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.Note
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.Note 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.Note
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.Note 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).Note
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.Note 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).Note
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.Note 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.Note 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.Note 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 applicationNote 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.Note 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.Note
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.Note 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”.Note
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.Note 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.Note 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.Note 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 InternationalNote 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”.Note 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.Note This figure echoes the findings of the FRA survey on violence against women in the European Union:Note 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).Note 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.Note
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,Note 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.Note
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’”.Note 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”.Note

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:Note 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).Note 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”Note 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”.NoteHowever, 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.Note 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.NoteNote
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.Note 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).Note 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”.Note 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”.Note 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.Note 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.Note 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,Notethe 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.Note
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.Note
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,Noteboth 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.