1 Legal
Recognition of the Right of Access to Justice
- Since courts were instituted as the preferred mechanism to solve
disputes, individuals were facilitated a path to approach justice. In Roman law, for example, the Digest
provided that ‘an action is nothing else than the right of pursuing, in a court of justice, that
which is due to one’.[1] But, even when and where citizens were allowed to exercise their rights before the
courts, this faculty was attributed individually and, therefore, the state did not have an excessive
concern to protect it. Regarding access to the courts, the states did not understand that it was their
job to facilitate it, much less pay for it.
- But the panorama changed in the new socio-economic context that
arose after the Second World War, thanks to the common effort of the international community to settle
certain basic rights as a common ground for the future. And, as a result, as we will study later in
detail, the idea that everyone is entitled to certain rights that require positive action by the state
for their enforcement became widespread in almost all countries. Specifically, given the general
prohibition of unauthorized private law enforcement, states were required to provide mechanisms for the
resolution of legal disputes and therefore had to ensure (or, at least, facilitate) access to the courts
for their citizens to seek legal protection.
- Following the words of Cappelletti, access to justice
became ‘the most basic requirement – the most basic human right – of a modern,
egalitarian legal system’.[2] Consequently, it has been considered so essential
that it has gradually been enshrined in the national constitutions of almost all countries (or, failing
that, in their jurisprudence given by constitutional courts) and in all international texts recognizing
human rights.
1.1 Legal Recognition of the
Right of Access to Justice at the National Level[3]
- National recognition of the right to access to
justice is generalized nowadays in most liberal democracies. Most states expressly include this right in
their constitutions. In Europe[4] for example, a right to be protected by the courts is expressly provided in quite
similar terms in many constitutions,[5] such as the Polish (Art 45), the Ukrainian (Art
55), the Portuguese (Art 20) or the Italian (Art 24).
- Art 45 of the Polish Constitution: ‘Everyone shall have the
right to a fair and public hearing of his case, without undue delay, before a competent, impartial and
independent court’.
- Art 55 of the Ukrainian Constitution: ‘Human
and citizens’ rights and freedoms are protected by the court’.
- Art 20 of the Portuguese Constitution: ‘Everyone is
guaranteed access to the law and to the courts for the defence of their legally protected rights and
interests, and justice cannot be denied to anyone due to insufficient financial means’.
- Art 24 of the Italian Constitution:
All persons may take legal action to protect their individual rights and legitimate
interests. The right to defence shall be inviolable at every stage and instance of legal proceedings. The
indigent shall be assured, by appropriate measures, the means for legal action and defence in all
courts.
- In Asia, it is expressly provided in Art 27 (1) of the
Korean Constitution: ‘All citizens shall have the right to be tried in conformity with the Act by
judges qualified under the Constitution and the Act’; in Art 32 of the Japanese Constitution:
‘No person shall be denied the right of access to the courts’.
- In Oceania, let us cite Sec 27 of
the New Zealand Bill of Rights Act 1990:
(1) Every person has the right to the observance of the principles of natural
justice by any tribunal or other public authority which has the power to make a determination in respect of
that person’s rights, obligations, or interests protected or recognized by law. (2) Every person whose
rights, obligations, or interests protected or recognized by law have been affected by a determination of
any tribunal or other public authority has the right to apply, in accordance with law, for judicial review
of that determination. (3) Every person has the right to bring civil proceedings against, and to defend
civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same
way as civil proceedings between individuals.[6]
- In America, for example, we can find a quite comprehensive text of
recognition of this right in Mexico. Article 17:
No person may take justice into his own hands or use violence to assert his right.
Every person has the right to have justice administered by courts that shall be ready to impart it within
the time limits and terms established by law, issuing their decisions promptly, completely and impartially.
Their service shall be free of charge and, consequently, court fees shall be prohibited.
Provided that equality between the parties, due process or other rights are not
affected in trials or proceedings conducted in the form of a trial, the authorities shall give priority to
the resolution of the conflict over procedural formalities.[7]
- In other cases, the right could be deduced from
another expressly recognized fundamental right (normally from the right to effective judicial
protection), as is the case in Spain (Art 24), Germany (Art 20 Grundgesetz; GG) or Israel,[8] or provided by another piece of
legislation, as is the case of Austria (para 29 of the General Civil Code).
- As explained in detail by Domej, this individual right to court is
not subject to recognition in countries in which it does not govern the ‘liberal concept of the
rule of law’, such as China or Russia.[9]
1.2 Legal
Recognition of the Right of Access to Justice at the International Level
- At a supranational level, there is a more widespread recognition of
this right in the main international legal instruments on fundamental rights, with similar content to
that of the national texts.
- In the European context, this right is recognized in a similar way
by two legal instruments. From 1950, in Art 6 of the European Convention of Human Rights (ECHR):
‘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’.[10] In similar terms, now in the context of the EU,
Art 47 of the European Charter of Fundamental Rights (EUCFR), proclaims what follows: ‘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’.
- In America, Art 25 (1) of the American Convention of Human Rights
recognizes the so-called ‘right to judicial protection’ in the following terms:
Everyone has the right to simple and prompt recourse, or any other effective
recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights
recognized by the constitution or laws of the state concerned or by this Convention, even though such
violation may have been committed by persons acting in the course of their official duties.
- In similar terms, Art 7 of the African Charter of Human and
People’s Rights provides that ‘Every individual shall have the right to have his cause
heard’.[11]
- Something further goes the Islamic world since they legally
recognized a ‘right to justice’ in Art IV of the Universal Islamic Declaration of Human
Rights:
a) Every person has the right to be treated in accordance with the Law, and only in
accordance with the Law. b) Every person has not only the right but also the obligation to protest against
injustice; to recourse to remedies provided by the Law in respect of any unwarranted personal injury or
loss; to self-defense against any charges that are preferred against him and to obtain fair adjudication
before an independent judicial tribunal in any dispute with public authorities or any other person. c) It is
the right and duty of every person to defend the rights of any other person and the community in general
(Hisbah). d) No person shall be discriminated against while seeking to defend private and public rights. e)
It is the right and duty of every Muslim to refuse to obey any command which is contrary to the Law, no
matter by whom it may be issued.
- Even the whole international community has come to a
common understanding by including this right to access in the two main universal legal texts on human
rights: Art 2 (3) and 14 of the International Covenant on Civil and Political Rights (ICCPR) and Art 8
and 10 of the United Nations Universal Declaration of Human Rights. In fact, for this second organism,
the achievement of this right is one of the essential objectives of its 2030 agenda, as we noted in
Chapter 1 (Goal 16 and Target 3).[12]
1.3 The Content
of the Right of Access to Justice in Legal Texts
- Once established that the general recognition of this right is
widespread at the legislative level, a second question arises: is its content identical in all these
instruments? If we read the different legal provisions analysed in the previous two sections, even there
are slight differences. Its legal wording is practically identical in all of them, but, interestingly,
their meaning is not the same in different space-time contexts. For example, as we will study later in
this chapter, whereas in Western countries the right is generally referred to as the idea of
facilitating access to the courts, in the Islamic states it is directly ‘rooted in establishing
justice than maximizing accessibility of justice by the State’ since the concept has a religious
relevance.[13] It seems that the same expression is often used as a true mixed bag in which everything
fits. In this sense, Professor Hess pointed out that, although the right of access to justice has been a
‘powerful key concept on the political agenda of judicial systems in Europe’ for more than
30 years, ’its precise meaning and the judicial concept of this key term has remained
unclear’.[14]
- Therefore, it seems necessary to begin this work by trying to define
or to clarify the content of this right. Although we will delve into its historical and current trends
later, let us start by analysing its wording.
- The first term focuses on the object of our study: it is a
‘right’ that is recognized to all citizens; a subjective power that allows them to assert
their rights and legitimate interests before the state that monopolizes the jurisdictional function.
And, given that unauthorized private law enforcement is generally prohibited, it becomes a basic human
right, normally classified in constitutional texts as essential or fundamental.
- The two other words define the content of that right: access to justice.
- The word access is, in principle, not very controversial. According to the Oxford English Dictionary,
access consists of ‘a way of entering or
reaching a place’, of penetrating an area reserved for some purposes. In our context, it means the
possibility of entry to the judicial system of justice orchestrated by the state. Having this clear, how
is this entrance conceived? Is it open to all, with or without restrictions? It is generally accepted
that no exclusions must be accepted neither because of the characteristics of the individual (their age,
race, ideology, etc) nor because of the object involved in the conflict. No one should be left out nor
can ‘any sector of the legal system’ from which ‘subjective rights or interests
derived be excluded legitimately’.[15] Even though reality has shown that that ideal
cannot always be realized entirely (in particular, due to cuts in legal aid budgets in most countries);
properly understood, this right should entail, at least in theory, equal access to be fulfilled:
‘yet the unlikelihood of fully realizing the ideal of equal access should not deter us from
treating it as an aspiration’.[16] However, as explained in Chapter 1, depending
on the needs of each justice system or on grounds of public order, certain restrictions on entry are
generally allowed (for example, the requirement for court fees), if they are proportionate and
justified. But, in any case, in most legal contexts the meaning of access does not refer exclusively to
the mere entrance to the judicial system: If the individuals comply with the procedural requirements set
by national procedural rules, the right includes the power to get the law enforced or the dispute solved
by the mechanism established by the state when applying the law. That is why most constitutional courts
consider part of its content certain procedural rights, such as the right to get a judgment, the right
to provisional measures, or the right to the enforcement of the judgment, as will be explained in
Chapter 3. In any case, even if it is the desideratum of all individuals who sue, almost all legal
systems agree in considering that the right to a correct judgment could not be generally included in the
essential content of the fundamental right of access to justice, although we are observing in the EU
context that the protection of some sectors (in particular, consumers) has managed to make the
application of substantive law prevail even above national rules of res
iudicata, as we will see later in detail.
- The last term that defines the right of access is the word
justice, which answers the following question: what
can citizens expect when they access the courts? Unlike the term access, justice is not a univocal concept. At least, we can distinguish two different approaches.
First, justice can be defined as ‘the legal system used to punish people who have committed
crimes’, according to the Oxford English Dictionary; in other words, justice as the mere access to
court, an option which, at least, offers the chance of seeking (at least formal) justice. In this sense,
it is frequent to formulate this guarantee as ‘the right to access to court’, which usually
includes compliance with the requirements of the fair trial (eg, reasoned judgment, respect for the
principles of audience and hearing, etc).[17] Second approach: ‘justice’ has also
an indeterminate and abstract meaning, imbued with axiological overtones: it is identified with the
final objective of the judicial system -that everyone should be given his own -and with the need to
restore the situations in which this balance is broken.[18] In this regard, justice is, according to the
Oxford English Dictionary, ‘the fair treatment of people’ and ‘the quality of being
fair or reasonable’.
- This last term is central in our study to discover if this right has
to tend to the achievement of justice. Curiously, the evolution of the interpretation of the right of
access to justice has gone hand in hand with this second notion of justice, an issue that we will deal
with below.
2 Trends in the
Interpretation of the Right to Access to Justice
2.1 Historical
Trends Approaching the Right to Access to Justice
- If we move back to the nineteenth century, in the context of a more
individualistic society, this guarantee was conceived as a personal right to access to judicial
institutions to try to find a solution to legal conflicts.[19] This was its essential content until, starting
in the 1960s, along with the world movement in favour of the protection of fundamental rights, access to
justice began to focus from a more social perspective, equally to other emerging rights such as
education or health care. From then on, the fact that many citizens did not have real possibilities of
accessing the courts when they needed it began to be seriously considered. Based on this, academia and
the legislators focused their efforts on identifying the barriers to access to justice, in especially
those that affected the most disadvantaged.
- In this context of change, in 1978 Professors Mauro Cappelletti and
Bryant Garth undertook an ambitious research programme on the evolution of access to justice, the fruit
of which they were able to identify three successive waves of global reforms in this area.
- The first wave gave attention to free legal aid. At
first, from the beginning of the twentieth century but, in particular, from the sixties, the states were
especially concerned with guaranteeing legal assistance to the poorest.[20] Consequently, they built quite
complete free justice programmes, in such a way that this benefit ended up becoming an essential part of
the right of access to justice in almost all national legal systems[21] and, even, at a supranational
level. Unfortunately, since the 1980s in a considerable number of countries the budgets that support
this free legal assistance have been cut (see, as a paradigmatic example, the English or Canadian
cases). These measures have generated, on the one hand, great social concern due to the lack of
protection that these measures cause and, on the other hand, the development of other alternative ways
of funding litigation such as financing by third parties, or the proliferation of legal defence
insurance.[22]
- The second wave of reforms, developed from the
sixties, and with particular intensity at the beginning in the United States, focused on the defence of
diffuse interests.[23] The welfare society allowed the creation of new collective property rights, which did
not receive sufficient protection with traditional legal schemes. Thus, little by little, class actions
were introduced into the world’s legal systems (although in different ways), which forced the
modification of a number of classic procedural categories, for example, the regulation of the effects
and limits of the res iudicata. However, in
practice, class actions did not manage to extend access to justice as much as expected.[24]
- Access problems persisted despite these legislative
advances. For this reason, simpler and faster new ways of solving conflicts were explored, that would
serve as an escape valve to the collapsed judicial system. This was achieved in the third wave of
reforms through the creation of the so-called ADRs, such as arbitration or mediation. The recognition of
these alternative means of dispute resolution brought with it the expansion of the concept of access to
justice, since, from then on, recourse to these institutions included the content of this fundamental
right, if they respect the essential guarantees of fair trial.[25] However, this option is convenient as long as
it remains within the limits of voluntariness. In the opinion of a large part of the doctrine, to which
we join, we must beware of imposing these alternative means on a mandatory basis. But in recent years we
cannot ignore that there are many examples of ADR solutions imposed on a mandatory basis. For example,
in Europe, compulsory ADR mechanisms have been introduced in some countries, either on a general basis
(as occurs in Italy[26] or Norway[27]), just for certain matters (as occurs in England and Wales in family law; in Austria for
matters such as child custody; or in France for small claims[28]) or for certain territories (as occurs in some
Länder in Germany). As empirical studies on this matter show[29], it is much less likely to reach an
agreement when the parties are forced and, even if they finally reach a consensus through this channel,
it is very possible that the agreement will be more unfair than the solution reached without pressure
within a process or consensual mediation. In fact, what this kind of reforms could really achieve is
just the opposite of what was sought: building a new barrier to access to justice.
- As can be seen so far, during this evolution of the right to access
to justice, its essence was centred in ‘the right to access to a court’; that is, in
guaranteeing the entrance to the jurisdiction and, at most, to a natural, independent and impartial
judge. Summing up, uniquely in the right to enter a conflict resolution system. In addition, it was this
basic understanding of this right, linked to the first way of reading the concept of justice as a
judicial power we referred to above, that was enshrined in most legal texts.
- However, the truth is that in its subsequent
development - in particular at supranational level - this guarantee was increasingly recognized as
having an added value: the state must not only ensure entry to the courts, but also that the procedure
that has to be followed is in accordance with basic standards of respect to human rights (redefining the
concept as ‘access to a fair trial’, provided, for example, in Art 6 ECHR and 47
EUCFR[30]). That
means that its recognition usually requires that the procedure conform to a series of essential and
minimum guarantees, such as the right to have the case heard publicly and fairly, the right to defence,
the right to a substantive resolution, the right to recourse or the right to the enforceability of
resolutions.[31] Let us give two examples to illustrate this trend. First, the doctrine of the European
Court of Human Rights, which understands that this right extends beyond the initial action of requesting
remedy before a court. In this sense, the ECHR has stated repeatedly that the right to a court includes
not only the right to institute proceedings, but also ‘the right to obtain a determination of the
dispute by a court, based on the premise that if Member States were not able to guarantee the power of
their courts to settle disputes by issuing final decision, the right to a court would be
illusory’.[32] Second example: the definition of this right given by the United Nations in 2004 also
reflects this broader understanding of this guarantee: the right of access to justice ‘is the
ability of people [...] to seek and obtain remedy through formal and informal institutions of justice,
and in conformity with human rights standards’.[33]
- However, even if, at this point, this level of protection has
already been enshrined in most countries at the legislative (even constitutional) level, is this content
of the right of access a sufficient guarantee of the effective protection of citizens’ rights?
Because citizens do not go to court to obtain a judicial resolution, even if it has been issued in a
very fair trial, but what they expect is that their legal conflict is resolved justly. This is, in our
opinion, the question that has been worrying theoreticians and practitioners in relation to this
guarantee since, despite all these historical advances, it has been observed that in practice this
approach to the right of access to justice is not sufficient to protect the rights of citizens in the
way they expect from the state. In this regard, for some years now, an attempt has been made to seek a
more open and comprehensive approach, that allows a better response to citizens, a question that we will
address in the following section.
2.2 Defining the
Right to Access to Justice Today. A User-centred Focus Approach: Are We in the Fourth Wave?
Can you imagine libraries at the service of librarians and alien to readers? Can you imagine
fire services structured, organized and reformed around firefighters and not about putting out fires or
bailing out floods? Well, that is what, for quite some time, has been happening with justice in Spain: that
it does not revolve around the defendants, that is, around all of us insofar as we may need the so-called
‘jurisdictional protection’, but around jurisdictional bodies and judges (Andrés de la
Oliva Santos, 1988).[34]
- Although no one disputes that much progress has been
made in the last decades in the protection of access to justice, the vast majority agree that most of
the legislative initiatives have been designed by and for jurists, at their convenience. Therefore, many
experts all over the world had in recent years agreed both in the diagnosis, and in the solution: it was
necessary to change the perspective. From various fronts, it was proposed to abandon the traditional way
of creating procedural models designed from and for judges and lawyers,[35] with the citizen in a passive
role, and shift to the claimant as an active subject who claims effective protection, thus placing them
(and, of course, also the defendant) in the centre of the design of conflict resolution systems (what
the Anglo-Saxons call a ‘bottom-up intervention’[36]).[37] Would this be forging a new movement of access
to justice? Perhaps it is time to wonder how much access to justice do we really want? This new
perspective also supposes a new way of elaborating the laws: prior to the adoption of any measure, it is
necessary to empirically identify the difficulties and specific needs of citizens (through statistics,
surveys, field work, etc) and start building the new systems of procedure from there.[38] The model gradually
revealed as more successful than the traditional one, since it allowed that the new legislative
proposals were formulated to be better adjusted to the objective pursued and to be able to measure the
impact of further reforms.[39]
- In addition, this new perspective places Justice with capital
letters at the heart of the right of access to justice. Why? Because, if the starting point of this new
approach is situated in the interests and needs of citizens, and we know that they aspire to something
more than a simple judicial decision at the end of a judicial procedure -even if all the essential
guarantees of the procedure are respected-, this new approach to the right of access opens the doors to
justice with ‘added value’.[40] In other words, individuals do not spend money
and time in the courts just to get a response, but a get an appropriate solution to their dispute. Thus,
from this perspective, the right of access to justice should presuppose the existence of a material and
procedural regulatory structure that sufficiently guarantees the effective protection of the rights and
legitimate interests of citizens, to which this guarantee serves.
- In recent decades, this new approach has not remained
theoretical, embodied in dozens of scientific works,[41] and most significantly, it is consolidating a
nuclear target in the most prestigious international institutions.[42] Two relevant milestones must be
highlighted: first, the adoption in 2015 by the United Nations of Goal 16 (within the SDG: Sustainable
Development Goals, aimed for 2030), on the rule of law and access to justice. Second, the
‘Recommendation on Access to Justice and People-centred Justice’, adopted in July 2023 by
the OECD, even defined ‘people-centricity’ in this context:
People-centricity refers to a human-centred approach that adopts the
perspective of people as a starting point and places people at the core when designing, delivering,
implementing and evaluating public policies, services and legal procedures within and beyond the justice
system. It considers the perspectives and needs of specific communities, including marginalised, underserved
and groups in vulnerable situations (eg, women, children, indigenous groups, elderly and people with
disabilities).[43]
- Taking all of the above into account, we take the liberty of
formulating the following conclusion: we consider that this change has acquired sufficient importance to
affirm that we are facing the fourth wave of the global movement for access to justice, which brings
with it a clear change of focus by defending a model of access designed from and for the protected
citizen, which logically defines both the content and the ways of undertaking the Justice reforms
inspired by this movement.
3 The
‘Fourth Wave of Access to Justice’: Defining its Characteristics
- Extracting common features from the various initiatives analysed,
this fourth wave of access to justice is characterized by the following notes that we will study in the
next section of this chapter considering concrete practices that are being carried
out.
- First: adaptative: better solutions for all (for example, it is a UN
explicit commitment to ‘leave no one behind’[44]) and, in particular, for the most
vulnerable.[45] Traditionally, legal solutions had a very general scope, so some needs of citizens were
never met, especially those of the most vulnerable, so that certain situations of lack of protection
against certain groups were perpetuated (children, migrants, indigenous groups, elderly, people with
disabilities, etc). This new trend is making it possible to adapt the pieces of legislation to the needs
of different population groups and different types of societies at each historical moment[46] from the moment the
government ‘engage directly with people’ for these purposes.[47] For example, their deficiencies
can be overlapped through informative campaigns or apps for illiterate people or for a part of the
population who is marginalized (eg, for indigenous people in Canada), as we will see later, or
accommodating the procedural rules to their circumstances (for example, when regards to people with
disabilities or minors[48]) or implementing tools to address systemic bias.[49]
- Second: fostering creative solutions. This approach would give rise
to more creative legal solutions, which, in many cases, determine the joint action of various agents and
disciplines to achieve the intended goal (courts, NGOs, social workers, lawyers, libraries, etc),
supporting also multidisciplinary initiatives, which integrate legal, psychological, and social
perspectives. A good example of this tendency are the projects led by the HIIL (Hague Institute for
Innovation of Law), such as the Justice Innovation Labs or the Justice Accelerator, all aimed at
improving the judicial system worldwide and achieving a ‘turning point’ towards
people-centered justice (currently developing programs in Ethiopia, the Netherlands, Niger, Nigeria,
Tunisia and Uganda).[50]
- Third: benefiting from ICTs and, more recently, from the potential
that AI is offering. In this sense, the words of Chief Justice John Roberts in the Year-End Report on
the Federal Judiciary can be highlighted:
For those who cannot afford a lawyer, AI can help. It drives new, highly accessible
tools that provide answers to basic questions, including where to find templates and court forms, how to
fill them out, and where to bring them for presentation to the judge—all without leaving home. These
tools have the welcome potential to smooth out any mismatch between available resources and urgent needs in
our court system.[51]
- In any case, the implementation of these new tools
must be carried out without forgetting their problems (for example, authenticity and accountability) and
the effects of the so-called digital gap on special groups (elderly, illiterate, etc), who must be
provided with tools adapted to their needs. To avoid this last problem many initiatives are taking
place; for example, in the European context, the European Commission for the Efficiency of Justice
(CEPEJ) has highly recommended to ‘devote specific attention to the risk of digital divide and
guarantee that no one is left behind because of the remarkable technological developments judiciaries
and our societies as a whole have been benefited from’.[52] Or the initiative of the World Justice
Programme in 2019 with the objective of ‘Measuring the Justice Gap’, aimed to undertake a
‘people-centered assessment of unmet justice needs around the world’.[53]
- Fourth: addressed to prevention and solution of conflicts
(‘dispute avoidance’ and ‘dispute containment’ in words of Susskind[54]). Solutions are proposed
not only for the resolution of disputes, but also for their avoidance, training and informing citizens
so that they learn to avert legal conflicts or, when occurred, to be able to quickly de-escalate them.
In this sense, the OECD has recently agreed that ‘access to justice refers to the ability of
people, businesses and communities to prevent conflicts […]’.[55]
- Fifth: dynamic and under continuous review. Finally, it is a dynamic
approach, because, through continuous evaluation and trial and error practices, it makes it possible to
choose the most effective ways to improve access on a solid and well-founded basis.[56] In fact, it is one of
the OECD challenges in the path to generalize the access to justice: ‘to develop and implement a
framework of measures and indicators that reveal an accurate picture of the provision of access to
justice for all’.[57] To give a practical example of this trend at the national level, in the Netherlands,
under the umbrella of the so-called ‘Law for the Introduction of Temporary Experiments in Civil
Justice’, different procedural initiatives have been implemented (which they call
‘experiments’), in which it is even possible to deviate from current procedural rules,
provided that the essential principles of access to justice and fair trial are respected. The results of
each initiative are analysed case by case to decide whether it should be consolidated in procedural
legislation or, on the contrary, abandoned.[58]
4 Current Trends
in the ‘Fourth Wave’ of Access to Justice: Facing Barriers to Access to Justice
- At this point, it is time to analyse the main initiatives that are
being carried out around the world to improve justice from this new perspective of access. To facilitate
the study, we will follow the same structure as the one proposed in the previous chapter to analyse the
access barriers, analysing how they are trying to cope with them from this new approach.
4.1 Empowering Citizens Through
Legal Information
- One of the first barriers that citizens encounter in
accessing justice is the lack of legal information. From this new perspective of the access to justice,
it is not only worrying that citizens ignore procedural rules when they are already in court, but also
that they do not know the laws that are applied to them when operating in their daily relationships
(employment contracts, rental contracts, purchase and sale of objects, etc), even before conflicts arise
(trying, when possible, to de-escalate them). Frequently they are not only unaware of the law; they do not even know how to
identify the seriousness or the difficulty of their legal transactions and, of course, it is common for
them not to know who to ask for help. That is why the state must act on this front in the most active
way possible. As pointed out by the OECD in its Report of 2015, ‘various paths to justice’
have to be explored since in recent years there has been a ‘growing focus on the broader range and
scope of problems experienced by the public and hence their legal and justice needs (not just those that
are adjudicated in courts)’[59], recommending to display a ‘service continuum
from public legal education to early resolution services to full representation and resolution’.
This new approach is facilitated by the existence of ICTs, which offer many resources to set up complete
and agile information through different mechanisms such as webpages, apps, chat boxes (instruments that
could be combined with voice recognition and assistants such as Alexa or Siri), that are making possible
to overcome the physical or educational barriers that have isolated certain groups for years all over
the world (elderly, illiterate, poor people, etc) as they can be easily used from home through a
computer but also through a mobile phone.
- A first step could be taken by facilitating basic legal training to
all from the very basis, as in Finland and France[60] that have included these contents as an
optional extra subject in secondary school. Education would be probably the best vaccine against legal
conflicts.
- Regarding prevention, there are lots of public and
private initiatives in this regard. As Susskind remarked ‘in Law, as in Medicine, I believe that
prevention is better than cure. Most people would surely prefer to avoid legal problems altogether than
to have them well resolved […] then access to justice is as much about dispute avoidance as it is
about dispute resolution’. As this author continues affirming: ‘improving access to justice
[…] may mean more than proving access to speedier, cheaper and less combative mechanisms for
resolving disputes’. It should mean ‘the introduction of techniques that help all members of
society to avoid disputes in the first place and, further, to have a greater insight into the benefits
that the law can confer’.[61] There are good examples of these initiatives in
Africa, where the widespread lack of awareness regarding access to the state courts was a matter of
concern. Some individuals or NGOs have created tools that facilitate access to justice for the most
disadvantaged: from broadcasting legal information on television, radio, and social networks (Facebook
or Twitter), to the creation of applications or platforms that subjects download to their mobile phones.
For example, Barefoot Law, an internationally highly awarded project recognized as a model and was
started by a law student in 2012 in Uganda as a private initiative to provide free legal information to
law laymen through their Facebook and SMS. It has spread with great success throughout Africa, with more
than 800,000 users (and more than 22,000 cases resolved to his credit). With a similar purpose, to
provide legal education but in this case, to Nigerians, is remarkable the initiative called ‘Law
Padi’ (2015).[62] Also, the creation of Comic contracts must be highlighted. These contracts
‘written in pictures’ explain to the citizens in an easy-to-understand way the terms of the
agreements and the position and function of each party. It was developed for the first time in 2016 by a
South African attorney, Robert de Rooy, to help fruit pickers on farms sign their employment contracts
but has been extended to other areas of law (financial, business, etc)[63] and the idea is being expanded,
with initiatives, for example, in Australia.[64]
- By the time conflicts have already arisen, in addition to multiple
public and private initiatives (from legal institutions together with social and/or educational or
health entities, depending on the needs), systems called ‘triage’ have recently been
developed, in the manner of those employed in the hospital setting.[65] It is about offering mechanisms
to diagnose the problem, analyse if it really has enough entity to be taken to court, prioritize the
most relevant cases and offer, where appropriate, possible help (for example, legal aid when
appropriate) or solutions through legal or paralegal services. For example, there is a programme in the
Netherlands of interactive diagnosis and triage websites for online dispute resolution through
Rechtwijzer 2.0 from 2007,[66] being visited mostly by citizens in the early stage of the conflict to try to
‘collect [the] necessary information that can help them to make proper decisions how to solve the
dispute’.[67] Along with these triage systems, there are multiple ways in which this kind of legal
information is being given in most countries, in presence or by phone in justice contact points provided
by the bar associations, by the ministries of justice or by the courts[68], or thanks to the ICTs through
self-help centres or internet websites or applications[69], initiatives whose effectiveness will be intensely
enhanced with the application of AI. Let us highlight three current best practices in this regard.
First, the Canadian Civil Resolution Tribunal in British Columbia, which will be explained later,
facilitates information about the disputes and provides as a first compulsory step a ‘solution
explorer’ system. Second, the comprehensive and easy-to-use UK websites providing legal
information, such as Citizen Advice, Judiciary and Gov.uk, that even allow you to file a claim through a
guided platform.[70] Third, the use of robots in Chinese courts to give citizens legal guidance,[71] as explained in detail
in the Section of this book on digital justice.
- And, finally, once the proceedings have commenced, it
is crucial that they are given the appropriate information on it from the court and even from their
legal counsellors.[72] As referred by the CEPEJ, it should relate ‘primarily to the objectively
foreseeable duration of the proceedings, legal costs and the potentially prejudicial consequences of the
parties' actions and omissions’ and, besides that, ‘parties should be able to request
information on the progress of the proceedings and relevant explanation when they are unable to
understand the purport of certain communication from the court’.[73]
4.2 Facilitating
the Understanding and Accessibility to the Justice System
4.2.1 Improving Court Accessibility
through Self-Representation?
- 2011. European Commission Eurobarometer: only two out of every
hundred consumers went to court for a consumer dispute. 78% stated that the procedure was too expensive,
long and complicated.[74]
- No one disputes that, today, citizens prefer to go to
court with a lawyer because they feel more secure and know that, in general, it will be easier for their
case to prosper; specifically, five times more likely according to experts.[75] However, the truth is that this
assistance is expensive or very expensive, depending on the country, so that, ultimately, it ends up
being in many cases one more barrier to access to the courts. It can be surmounted, from above, by those
who have money available to dedicate to this end without this preventing them from covering their basic
daily needs or, from below, by those who, demonstrating their lack of resources to litigate, obtain
assistance from the state to go free of charge to the courts (being state budget cuts in this regard on
the rise in recent years).[76] In the middle, there is a very broad stratum of the population, such as the middle
class, which in many cases chooses not to enforce their rights in court because the accounts do not come
out, especially when it comes to lawsuits for matters of little entity. As the Court of Justice of the
European Union pointed out in its judgment in Case Océano Grupo
Editorial SA vs Rocio Murciano ‘in disputes where the amount involved are
often limited, the lawyer's fees may be higher than the amount at stake, which may deter the
consumer from contesting the application of an unfair term’.[77] This difficulty could be
overcome by extending the coverage of legal aid to a greater number of people who need it, but,
curiously and unfortunately, as mentioned above, the trend for more than a decade has been exactly the
opposite, with the Justice budget dedicated to this aim being cut more and more in most
countries.
- What strategy to adopt, then, to guarantee effective access to
justice? In practice, many states have chosen to increase the cases in which a lawyer is not required in
civil proceedings (for example, this has happened in the United States, Canada, the United Kingdom,
Australia, New Zealand or Hong Kong).[78] The photograph of what happens in the Member
States of the European Union serves also as an example of this tendency: eight of them totally waived
the obligation to appear in court with legal assistance at all in all their instances (Denmark, Finland,
Ireland, Latvia, Lithuania, Malta, Romania and Sweden) and, in another seven (Belgium, Bulgaria,
Croatia, Czech Republic, Slovenia, Estonia and Poland), it is only required for high appeals (second
appeal or cassation).[79] In this way, gradually, legal defence is becoming an option for the citizens, as
configured in Art 47 EUCFR and proposed in the ELI/UNIDROIT Model European Rules of Civil Procedure
(Rule 14[80]). Is
this new trend a guarantee of more effective access to justice? In our opinion, if we analyse it from
the point of view of the citizen, if this option comes devoid of additional tools, it is a real fiasco.
The state raises this first barrier but leaves the citizen alone before the courts.
- Identified the situation and the problem, various alternatives may
be offered to deal with this issue from the perspective of this fourth wave:
- First key: promoting initiatives so that citizens can self-manage their legal conflicts, and that allows them
to prepare to go to court (as a procedural DIY). How? Facilitating information and legal assistance
through traditional means or through technological means, as we analysed in the previous section. Take
the UK website citizensadvice.org, mentioned above, as an example.
- Second key: creating forms to access judicial proceedings, built in
a flexible way, with drop-down information tabs to help the users understand what data is being required
and why they have to give that information, avoiding rigid designs such as the European models provided
by the E-justice platform.
- And third and last one: adapting the procedural rules when parties
do not need lawyers. The problem is: which model should be followed? Interestingly, almost all the
procedural models for small claims or trifle matters agree on the establishment of ‘lighter’
procedures, which simplify the stage of allegation and evidence (which are often done with forms), the
deadlines and, on occasions, the channels for appealing judicial decisions.[81] But, even if these changes are
undertaken, can lay persons be required to act within the framework of a civil proceeding with rules of
the game designed for lawyers and with a judge who operates solely as a mere referee observing the plays
because he counts on the two opponents are track professionals (what some have come to call the
‘sports theory of justice’)?[82] If the response is negative, we may formulate
proposals of procedural models designed specifically for these cases of self-representation, question
that we will study later in the Sec 4.4.1 of this chapter.
4.2.2 Legal Language
- There is no doubt that one of the most difficult barriers to
overcome by lay citizens is the understanding of legal language. Of course, we do not consider that it
is a question of adopting a basic and simple language or slang, so that everyone understands it; nor of
avoiding legal language under the umbrella of a kind of movement like the one that in 1793, during the
French Revolution, led to the abolition of the Schools of Law. Technical terms and legal language must
be used and, in fact, are essential in many contexts, but it is about making it understandable for their
users (above all, court decisions). The judge applies the law through their word and must take care of
it: they must know how to express themselves clearly, concisely, avoiding the use of complex or
convoluted language when it is not required or the employment of stereotyped formulas with obscure or
intimidating meaning and, of course, must use the language correctly from both the grammatical and
semantic point of view. This idea is clearly explained in the Opinion No 11 given by the Advisory
Council of European Judges on the quality of judicial decisions (2008), in the following way: ‘all
judicial decisions must be intelligible, drafted in clear and simple language -a prerequisite to their
being understood by the parties and the public. This requires them to be coherently organized with
reasoning in a clear style accessible to everyone’.[83] In some cases, it could involve the need to
facilitate the citizens a sort of translation of the entire resolution, briefly explaining the main
content of the decision.[84]
- Nevertheless, in addition to complying with these basic
requirements, the judge must not forget that the addressee of the decision must understand the result of
their deliberations, so it may be necessary in some cases that they have to carry out a sort of
‘translation’ of judicial decisions in plain language, adapted to the circumstances of the
addressee (age, level of education, etc).[85]
- To fulfil the objective of making language more accessible to
citizens, many initiatives have been developed worldwide. It stands out the works of the CEPEJ, an
institution integrated into the Council of Europe, and their Document titled ‘Guidelines and
comparative studies on the centrality of the user in legal proceedings in civil matters and on the
simplification and clarification of language with users’ (16–17 June 2021). We bring here
some of its main recommendations, as they can be taken as a guide of best practices in this
regard:
- Encouragement of the training of judges in this matter (in oral and
written communication), both in their initial and ongoing stages. Even introducing these topics as part
of the curriculum at the university level, as occurred, for example, in Germany.[86]
- Creation of manuals and style recommendations. The Belgian project
of the Higher Justice Council (known as Plan Crocus, 2017–2020) stands out, which has worked to
invite all those involved in judicial proceedings to ‘use existing tools to communicate in a more
understandable way’. Initiatives of Bosnia and Herzegovina, Denmark, and Sweden (Language Act) are
also remarkable.[87]
- Promotion of information tools such as brochures and web pages on
these topics.
- Careful implementation of the use of model forms and templates for
resolutions, always while respecting judicial independence. In fact, in some countries the use of forms
is mandatory (for example, in the United Kingdom -Art 4 of the Civil Procedural Rules). In other
countries, such as Germany, Hungary or Moldova, although it is not mandatory, these forms are provided
to judges to ensure that they meet certain minimum standards for citizens. These practices are in any
case different from the not recommended use of stereotyped reasoning through the ‘cut and
paste’ technique, which unfortunately is frequently used by our courts, and which deprives the
defendant of defence opportunities for lack of sufficient reasoning.
- Introduction of periodic evaluations of the oral and written skills
of judges, at least during their first stage of training (in Austria during the first three years) or
throughout their tenure, as several countries already do like Finland, Germany (every four or five
years), Italy or Slovenia.[88]
- Realization of surveys of users of justice to measure their
satisfaction in terms of their understanding of the language after passing through the courts, to adopt
the necessary corrective measures to improve their understanding, as is the case in Denmark, Finland,
Moldova, Slovenia or Sweden.
- In the same line, the OECD has recently invited Member States in the
abovementioned Recommendation of the Council on Access to Justice and People-centred Justice Systems to
‘design and deliver people-centred legal and justice service by’: ensuring that they are
‘provided in clear, plain and inclusive language and manner, avoiding complexity’ (Sec
II.2.b.ii).
4.2.3 Design
of Judicial Spaces
- Accessibility to the justice system also involves planning its
design considering the needs of users. In this section, we will mention the importance of planning well
the physical spaces in which justice is administered in person (Sec 4.2.3.1), as well as the virtual
spaces, which are increasingly used (Sec 4.2.3.2).
4.2.3.1 Design of
Judicial Spaces for Presential Procedural Activities
- The idea that the design of the place intended to
administer justice influences their users’ mood and attitude is not new. In fact, the Romans were
aware of the importance of the design of law-administering spaces. They set up harmonious buildings with
their magnificent basilicas that conveyed an idea of authority and social order to those who came to
request justice. This idea has been perpetuated for centuries, as shown by the fact that the court
building is usually one of the most prominent and usually one of the most solemn in almost all cities.
Linda Mulcahy, Professor at the University of Oxford, resumes this idea in this way: ‘how the
design of the courthouse and courtroom can be seen as a physical expression of our relationship with
ideals of justice’. Changes in the approach to the justice system have been reflected in the
configuration of judicial spaces (for example, increasing the room for advocates, reducing, or
increasing the place for the public, for the jury, etc). In other words, the history of the design
of buildings dedicated to administering justice has much to say about the historical evolution of
justice itself.[89] If, as we maintain in this work, the perception of access to justice is changing in
recent years to a more user-centred perspective, it is, therefore, logical to consider how this should
be reflected in the judicial architecture. With numerous examples Mulcahy illustrates how new judicial
buildings all over the world are being conceived as symbols of democracy, being open to more public
participation. Contemporary architects are planning buildings that could be a mirror of transparency,
accessibility without losing their sense of majesty or authority. Examples of this new tendency could be
found in courthouses in the UK, South Africa, Australia, France, and Belgium, as shown by
Mulcahy.[90] Of
all of them, we highlight two examples of this type of construction. First, the enlargement project of
the Bordeaux Palace of Justice.[91] This work, carried out in 1992 by the
prestigious architect Richard Rogers (who also projected the European Court of Human Rights building,
among others), pursues to convey to citizens a positive perception of the accessibility of the French
judicial system and reflects its two essential characteristics: transparency identified with the clarity
of the glass that covers the whole building, and the honesty of the judges, ‘materialized in a
drastic separation of forms emphasized with a clear differentiation of materials’.[92] Second, the New
Zealand Court of Justice, which expresses throughout its walls the new aspirations of the justice system
of the twenty-first century.[93]
- Another important step to improve the design of
judicial spaces goes through the preparation of guidelines for the construction of projects of this
type. As far as I know, the United Kingdom is leading this approach in practice, as they have prepared a
169-page guide (available online), literally intended to ‘improve the experience of justice
users’ titled ‘Court and tribunal design guide’,[94] that could be used as a
reference by other countries. It contains the standards they consider must be followed for the judicial
buildings to be:
Appropriate (buildings must provide the right setting and service for each user and
every hearing, and reflect the dignity and authority of the courts and tribunals); effective (buildings must
provide a safe environment for everyone and help each user fulfil their role); accessible (buildings must be
easy to use and understand) and flexible (buildings must be adaptable, both for day-to-day requirements and
longer term change); sustainable (the estate must be affordable to resource and maintain).[95]
The guide considers how spaces should be organized to offer a better service to
citizens so that their presence in them does not generate so much stress or anxiety; for example, from how
the point of entry should be, with a waiting room and a welcoming service desk), whether a room should be
set up for children who must go to the courts (in which they play or read) or how to prepare a prayer room,
about the best acoustics, the best colour or the furniture that best suits the purpose and tone of each
space.
4.2.3.2 Design of
Online Judicial Spaces
- The concern to create friendlier environments for the public, but
without losing the sense of prestige, authority, and legitimacy that the courts deserve increases in
virtual environments. The mere journey that the defendant must make from the street to the courtroom
(especially if the architect has planned a large entrance space to reach the building, as is the case,
for example, of the Supreme Court of Australia) poses the user in a situation. However, this does not
happen online, whoever connects to a hearing from home. Therefore, it is necessary to think about how to
help the user get prepared for their virtual entry into the spaces of justice. Although there are other
countries that have also made significant progress in this regard, we highlight again as a best practice
the initiatives taken in the United Kingdom. As a result of the work of various experts from various
disciplines, they have prepared a variety of tools to help users. In particular, apart from a guide of
‘Good practices for remote hearings’[96], there are videos available on the Ministry of
Justice website[97] (on different types of trials) explaining three essential issues: first, how to prepare
for court hearings both technically and personally (for example, what to do if you do not want to be
seen by one of the participants in the virtual session); second, what will happen during the hearing;
and, third, how to behave (indicating, for example, that they should be polite, that they cannot eat or
drink, or smoke, or have pets around). As illustrated by Professor Mulcahy, who has led this project, in
just 15 minutes citizens can be conscious of what they are going to do so it is easier for them to act
accordingly.
4.3 Improving
Access to Justice to Vulnerable Parties
- This new way of understanding access to justice is representing very
significant progress in improving the protection of the most vulnerable groups in their access to
justice. In this section, we will point out some measures taken for this purpose. First, two initiatives
that are being taken to improve any kind of vulnerability and, second, some plans or projects specially
designed for the collective they are aimed at.
4.3.1 General Initiatives for
All Vulnerable Collectives
4.3.1.1 Improving Substantive Law for the
Better Protection of Vulnerable Groups
- A key piece to improve access to Justice with capital letters is,
logically, the existence of substantive regulations that sufficiently protect the rights and interests
of these vulnerable groups. For this reason, states are being especially sensitive to the needs of these
groups and are building true regulatory bodies to defend their interests. Consider, both at the national
or supranational levels, the progress made in the last two decades in the field of consumers and how it
continues to evolve, in constant adaptation to the new needs of commerce users. Thus, for example, in
the European context, the Directive 2019/2161, of 27 November 2019, stands out, for the improvement and
modernization of the application of the EU consumer protection, which again increases the list of rights
and guarantees of buyers, especially reinforcing their protection in online traffic.
- In other countries, there are also numerous legislative initiatives
to improve the protection of women[98] or certain communities marginalized for years
or centuries for reasons of gender or race. That is the case, for example, of Canada, where they
approved a Reconciliation Plan with Indigenous Peoples (2021–2024), focused, among other things,
on the promotion of the rights of this group.
4.3.1.2 Expanding Legal Standing for
the Better Protection of Vulnerable Groups
- Once more rights for the most vulnerable groups are recognized, the
next step to improve access to Justice involves expanding the circle of subjects or entities that can
invoke them before the courts, recognition that can carry out the legislators and the courts.
- At the European level, the legislation that recognizes extraordinary
legitimation is very varied, although, due to its novelty, we highlight Directive 2020/1828, which
enables certain entities to exercise on behalf of consumers representative actions for the protection of
collective interests.[99] At the national level, there are several examples of the extension of the rules of
legal standing for the protection of women or other people marginalized due to age or sexual condition
(or disabilities). For example, this occurs in Spain, where the Civil Procedure Act recognizes this
power also to political parties, unions, professional associations of self-employed workers,
organizations of consumers and users.
- Courts also help in this task. Specifically, as an example, let us
cite two recent judgments of the European Court of Justice that have made a broad reading of the
extraordinary legal standing rules provided for in the legislation on the environment and data
protection, respectively.
- The first, the Sitchting Varkens in
Nood and others Case.[100] In this case, the Court clarified that Art 9 of the Aarhus Convention on access to
justice in environmental matters, should be interpreted in the sense that NGOs should be considered in
any case ‘interested public’ in the sense of the second paragraph of that article;
therefore, their prior participation in the procedure for adopting the contested decision could not be
required for their access to legal remedies against decisions that affect the environment, since this
reading would violate the objective of the Convention to guarantee this group ‘broad access to
justice’ and would deprive this provision of its ‘useful effect’.[101] However, this
condition may be deprived to the ‘general public’ (and thus, to the co-plaintiff
LB, who lived 20 km from the pigsty), for whom more
limited access is recognized. Therefore, the signatory states may approve procedural norms that
establish certain admissibility requirements with respect to these resources, without prejudice to the
fact that said national legislations decide to grant the public a broader legitimation. These possible
procedural requirements applicable to the public in accordance with Art 9.3 of the Convention, although
they implied a certain restriction of the right to effective judicial protection, should be understood
as ‘justified [...] within the respect of the principle of proportionality and if it responds to
an objective of general interest of the EU’.
- More recent is the Judgment handed down in the Case German Federation of Consumers vs Meta Platform Ireland (Facebook).[102] In this case, the German consumer protection entity argued before the courts that the
download of free games provided by the defendant implied the acceptance of conditions regarding the data
of the users that seemed unfair. The discussion was about whether the Federation could have legal
standing in accordance with Art 80 of Regulation 2016/679, on representation of data subjects, since no
specific violation of the rights at stake was alleged and there was no specific interested party
affected. Once again, the European Court of Justice was inclined to broadly interpret the European
legislation: they considered this reading to be the most appropriate to ‘guarantee effective
protection of the freedoms and fundamental rights of individuals and, in particular, their right to
protection of privacy and the protection of personal data’.
4.3.2 Measures Aimed at Certain Vulnerable
Groups
4.3.2.1 Protecting Poor and Illiterate
Citizens
- In recent years, all supranational organizations have been
especially attentive to data on access to justice for the most needy and poorest, since they are
becoming increasingly aware that a justice system that does not work increases exponential poverty and
perpetuates situations of need, as it generates endless spirals of problems, as we indicated in the
previous chapter that the OECD reports pointed out in recent years.[103] They are also worried about
the great disadvantages that illiterate or people with low levels of education have before the courts:
‘it was found that people who were unable to take action for their legal problems had “low
level of capability in terms of education, income, confidence, verbal skill, literacy skill and
emotional fortitude” (Genn and Paterson, 2001), thus pointing to the multi-dimensional nature of
legal capability (Collard et al., 2011)’.[104] In some cases, the difficulties are
aggravated by war or post-war situations, such as the case in Afghanistan or in some Sub-Saharan
countries, such as Sierra Leone.[105] In these cases, specific solutions are
required, in most cases not only in order to rebuild the justice system, but also to reconstruct
citizens’ trust in it.[106] In this sense, the UN Secretary General
Report (2004) pointed out that ‘sensitive of the needs of the groups’ must be appreciated in
every particular case.[107]
- This new approach to access to justice pretends to fill the
justice gap and, through this, improve the
economy of the countries, particularly of Third World countries. As mentioned before, this expansion of
the protection of the access to justice is possible in large part due to many different initiatives
(such as mobile legal service clinics that visit the villages regularly, particularly in rural areas).
In any case, there is no doubt that it is being enhanced thanks to the modern communication techniques,
which have made it possible to bring the information or legal help to the most remote places and to the
people most in need (even if they are illiterate). And, as we have seen in these pages, especially due
to the emergence of the AI, this is just the beginning. The work of the NGOs is also remarkable in this
sense, since in the last years they are searching in poor countries for the most appropriate mechanism
to improve their system of justice (no one-size fits all solutions). Examples of these experiences have already been provided in the previous
section of this chapter, to which we refer.
4.3.2.2 Protecting Disabled
- Historically, one of the sectors of the population
that could almost be said to have been left out of possible access to justice was the disabled. In
recent years there has been a greater worldwide awareness of the need to provide them a more accessible
world. From the perspective of access to justice, the United Nations approved in December 2006 an
instrument protecting their rights, the International Convention on the Rights of persons with
Disabilities,[108] whose Art 13 recognizes their right of access to justice in the following terms:
States Parties shall ensure effective access to justice for persons with
disabilities on an equal basis with others, including through the provision of procedural and
age-appropriate accommodations, in order to facilitate their effective role as direct and indirect
participants, including as witnesses, in all legal proceedings, including at investigative and other
preliminary stages.
- Different countries have introduced these measures into their
national legislations, such as Spain in its recent Law 8/2021, of 2 June 2021.[109]
4.3.2.3 Protecting Consumers
- As remarked by Wrbka, the new valued-oriented justice (what he
called Justice 2.0) requires a new approach to consumer law; traditional models do not satisfy their
rights: ‘consumer rights are only as effective as their enforcement’. Therefore, it was
necessary to build a system that guarantees not only the access to ‘functional procedural system
of rights’ but also to ‘suitable substantive rights’.[110] This new perspective has been
assumed in different countries but as explained above in Sec 4.3.1, it is for the last years a
particular target within the European Union.
4.3.2.4 Protecting SMEs
- Although the fundamental focus of the new approach to access to
justice is on the poorest citizens, on marginalized people and on consumers, a group especially affected
by inappropriate access to justice cannot be left out, SMEs. SMEs are the social and economic
engine room of every country. Therefore, states
are increasingly analysing the legal protection needs of their companies to provide them with more
effective judicial protection. To give an example, this study has been carried out in Poland, with the
result that shows the importance of this issue for SMEs: ‘almost half (46.9%) respondents who ran
a business at the time of the survey had at least one legal issue in the three years preceding the
study’,[111] data that is probably equal in most countries. And the problem is that many small and
medium-sized companies do not only know what to do when a legal conflict arises, but also how to prevent
it (improving, for example, the wording of their contracts), and they mostly do not have access to free
legal assistance to help them finding the better path to solve the conflict. These differences are
aggravated, as Butler pointed out for New Zealand (although it can be generalized to any
country),[112] in international trading, reason why many of these micro-enterprises decide not to
operate abroad to avoid problems. Apart from the escape in these cases to the mechanisms of ADR
(Professor Butler proposes in her article as a partial solution the creation of Bilateral Arbitration
Treaties), it is necessary to evaluate country by country what needs their SMEs have and propose
measures that can improve their access to the courts, many of them will go through the use of ICTs to
improve conflict prevention and the first approach to the case.[113]
4.3.2.5 Protecting Indigenous
People
- United Nations Declaration on the Rights of
Indigenous Peoples (UNDRIP) was adopted in 2007. It establishes minimum standards for the survival,
well-being, and dignity of Indigenous Peoples around the world. UNDRIP recognizes, among other things,
Indigenous Peoples’ right to self-determination, autonomy, or self-government (Art 4, UNDRIP).
There are certain countries such as Australia, Brazil or Canada, where these rules are of special
interest for the presence of an important number of Indigenous. For example, Canada did not fully
endorse UNDRIP until 2016 and finally approved on 2021 the Bill C-15, ‘an Act respecting the UN
Declaration on the Rights of Indigenous People’.[114]
4.4 Reducing
Procedural Barriers
- Apart from the requirements that both national and supranational
jurisdictions have traditionally formulated as desired so that procedural requirements do not constitute
obstacles to effective access to justice (avoiding inadequate procedural rules that contain
disproportionate procedural formalities or excessively strict interpretations of such rules[115]), two questions must be
raised regarding the novelties introduced in this fourth wave. First, the need to adapt our procedural
models to the increasing cases of self-representation (Sec 4.4.1) and second, the procedural
consequences that the measures adopted in the substantive field to better protect vulnerable groups (Sec
4.4.2).
4.4.1 The
Need to Adapt the Procedural Models to the Increasing Cases of Self-representation
- Given that, as we mentioned above, states are increasing the cases
in which individuals are not obliged to go to court with a lawyer, it may be necessary to adapt the
procedural models to this new panorama. If not, citizens will not be able to cope with multiple
formalities thought for a procedure with legal experts, building a clear new barrier to access justice.
Thus, we will formulate below a series of proposals to adapt our civil procedures to this new
situation:
- Regarding the form of the procedure: procedures should predominantly
be oral. It is true that some models of small claims procedures such as the European one (highly
criticized for it) or some countries for reasons of greater effectiveness[116] are preferring written
procedures. In our opinion, this option clearly reduces guarantees for the litigants, even greater when
they do not go with a legal professional to bring the dispute before the courts. When the parties go
unrepresented, it becomes even more urgent to have at least the option of holding a hearing and for the
parties to present their claims personally and directly to the judge.
- Regarding the times of the procedure. First, the deadlines. It is
worth considering whether those legally provided for the acts of allegation and defence are sufficient
to allow an effective defence of lay parties, because normally there is a unique temporal regime for
cases with or without the intervention of lawyers. Second, regarding preclusion, because in most cases
strict procedural rules were designed and thought for litigation with the help and assistance of legal
professionals.[117] When this situation does not occur, our recommendation is to relax them, unless it is
guaranteed that the parties have been duly informed of its consequences and have fully understood
them.
- The rules of the burden of the proof. For similar reasons to what we
indicated for the preclusion, the application of the rules of the burden of proof should be relieved
when applied to this kind of procedures, as countries like the United States or the United Kingdom do in
their trifle civil proceedings.
- The role of the judge. Although the construction of the model of the
contemporary civil procedure is based on the dispositive principle, which implies that the parties
define entirely the object of the procedure, this does not mean that the judge should not assume any
active role during the procedure, without abandoning their impartial position. Thereby, in this kind of
proceedings without legal assistance to the parties it could be recommendable that the court assume not
only the duty to inform the parties equidistantly of their rights and burdens, but also to give them the
chance to introduce legal arguments during the proceedings and to make their resolutions understandable
to their recipients.[118]
- The control of the decisions adopted in these procedures. Although
it is true that a large part of the small claims procedures do not count on a second instance, they are
normally subject to any kind of appeal, even exceptional. We still believe that there is more need for a
recourse when the parties are in court without a lawyer since they are deprived of any option to
challenge judicial decisions if the judge has violated their essential guarantees.
4.4.2 Procedural Consequences of
the Measures Adopted in the Substantive Field to Better Protect Vulnerable Groups
- As we analysed before, one of the achievements of this new wave of
access to justice is the better effective protection of the rights of citizens through a more
comprehensive regulation of their substantive rights and the extension of the rules of legal standing.
But the efficacy of some of these initiatives may be hampered by the requirements set by some national
procedural rules.
- At this point, one may wonder: How much access to justice is enough?
How much access to justice do we want? Because the truth is that, if we create an entire corpus of substantive laws for the protection of
citizens and special rules for the most vulnerable groups, those procedural rules do not have to leave
them empty of content. Do we have then to alter or change our ‘traditional way of building civil
procedures’ (their principles, their rules, their limits, etc) to make substantive laws effective?
Do we have to start accepting exceptions in the application of procedural requirements to make the
rights applicable (eg, regarding the rules of res iudicata or of the preclusion)?
- Within the European Union there is a clear trend in this direction
in some fields considered in need of special protection (eg, consumers): a path towards the prevalence
of making European substantive rights effective above, if necessary, national procedural laws. As
explained in Ibercaja[119], a case over the control of unfair terms, the
starting point is the need of special protection of certain groups; in this case, consumers: ‘the
system of protection introduced by Directive 93/13 is based on the idea that the consumer is in a weak
position vis-à-vis the seller or supplier, as regards both his or her bargaining power and his or
her level of knowledge’. From there, the European Court of Justice dares to affirm that, unless
the absolute passivity of the consumer is proven (para 38), the application of the national procedural
principles in question (such as the principle of initiative of the parties, the requirement of
consistency of the judgment or res judicata) cannot make the protection of such rights impossible or
excessively difficult, thus violating the principle of effectiveness (Unicaja[120] case). In the same direction, the Court has
also precluded in Vicente[121] that the internal procedural rules cannot
impede the application of European substantive laws:
a national law relating to a summary procedure for the recovery of lawyers’
fees pursuant to which the claim brought against the consumer client is the object of a decision delivered
by a non-judicial authority, the intervention of a court being provided for only at the stage of a possible
objection being raised against that decision, without the court seised on that occasion being able to
ascertain, if necessary of its own motion, whether the terms contained in the contract which gave rise to
the fees claimed, are unfair or to allow the production, by the parties, of evidence other than the
documentary evidence already produced before the non-judicial authority.
- At least in this case the Spanish courts were given the opportunity
to examine if ‘the national procedural regime may be the object of a consistent interpretation
with Directive 93/13 and to establish the consequences therefrom, disapplying, where necessary, any
provisions of national law or case-law which precludes the obligation for the court’ (para 74).
- At this point, we may return to the question raised at the beginning
of this section: is this trend going too far or is this the path we must follow to achieve real
protection of the substantive rights? At least these decisions from Luxembourg should serve as to
encourage us to spend some time thinking about whether some aspects of our procedures in some special
areas of protection have to be redefined, in the sense of what the Court of Justice affirmed in the
Case Impuls Leasing Romania IFN SA[122]:
the obligation on the Member States to ensure the effectiveness of the rights that
individuals derive from EU law, particularly the rights deriving from Directive 93/13, implies a requirement
for effective judicial protection, reaffirmed in Article 7(1) of that directive and also guaranteed in
Article 47 of the Charter of Fundamental Rights of the European Union, which applies, inter alia, to
the definition of detailed procedural rules relating to actions based on such rights.
- And, at least, if we do not want to touch the principles that
support our national proceedings, at least it would be necessary to examine if our existing procedural
laws respect the fair trial guarantees to try to eliminate all possible obstacles to the effective
judicial protection of rights. An example of these possible violations was pointed out by the Court of
Justice in the Case Impuls Leasing Romania IFN SA: there is
a significant risk that the consumer concerned will not lodge the objection
required, either because of the particularly short period provided for that purpose, or because they might
be dissuaded from defending themselves in view of the costs which legal proceedings would entail in relation
to the amount of the disputed debt, or because the national legislation does not lay down the obligation
that all the information must be communicated to them which is necessary to enable them to determine the
extent of their rights.[123]
4.5 Facing
Growing Complex Litigation and Overloaded Courts
4.5.1 Reform
the Organization of the Courts
- In recent years, two fundamental trends can be noted in terms of the
reorganization of the courts: first, the disappearance of many courts of first instance and, second, the
specialization of the courts. We believe that it is worth examining this trend in this chapter to
analyse whether it affects access to justice in any way.
- Regarding the first issue, there is a general trend towards the
disappearance of first instance courts of general jurisdiction[124] (made up of a single judge closest to the
citizen), normally due to a reorganization of the territorial distribution of offices. In some countries
such as Spain, they tried to justify these measures saying that the establishing of the new judicial
model of courts (district courts with a broader jurisdiction) would ‘simplify access to
justice’ but it seems that justification for many of their reforms is far from that. They in fact
normally only address building more efficient and cheaper judicial structures (mere optimization of
resources by merging single-person courts into a single court, avoiding increasing the judicial staff
or, for example in the case of Spain, willingness to reduce power and independence to the judges while,
at the same time, the power of the administrative body in justice is increased). Consequently, national
legislators must be very cautious with the changes they make in this regard so as not to turn these
changes into a new barrier to access to justice if what they achieve is to distance the citizen from the
court. In this sense, the CEPEJ reminds the Member States that ‘the right to access essentially
relies on the conditions under which citizens can, by themselves or a legal representative, appear
before a judge’, which ‘implies a relative proximity between the litigants and the court, at
least for the first instance’.[125]
- Similar precautions must be taken against the progressive tendency
of specialization of the courts.[126] To avoid excesses in this regard, it may be
appropriate to follow the advice given by the Consultative Council of European Judges in their Opinion
15 (2012) on the specialization of judges: that these courts ‘should only be set up when they are
necessary for the proper administration of justice, because of the complexity or specificity of the law
of the facts’, as could happen, for example, with the creation of Environmental first courts in
Sweden.[127]
4.5.2 Simplification of Procedures
- It seems, however, beyond any doubt that what can reduce the burden
on our courts is the creation of simpler judicial procedures. When possible, developed online taking
advantage of the possibilities provided by new technologies, that permit the users to manage themselves
throughout the proceedings from home with their own computers, tablets or, even with their mobiles.
Although it could be possible that, at least, the essential documents of the procedure can be presented
online, and must then be sent to the competent court, as is the case for the moment with the European
procedures that are managed through the E-justice portal (for example, for small claims processes),
there are already countries that have gone one step further and have implemented entire procedures
developed online. We highlight two models, which are working very well and are serving as an example for
the rest of the world: the first, in Canada, managed as a court although its members are not
professional judges but experts in law and conflict resolution; the second, in the United Kingdom,
decided by professional judges.
- The first is called the ‘Civil Resolution
Tribunal’, part of the British Columbia public justice system.[128] From the beginning of its
journey in mid-2016 to February 2021, it had processed almost 21,000 disputes.[129] It was created to resolve
strata property issues, but it was extended to small claims (below CAD 5,000), to motor vehicle
accidents and to certain cases on societies and cooperatives; from 2023, they also covered claims for an
intimate image protection order.[130] The procedure is managed through a web page
of very easy access and use, assisted by linked pages with information and simple explanations and
complemented by short (one and a half minute) explanatory videos. Its processing consists of four
phases: first, called ‘Solution explorer’, free and anonymous, which anyone can access.
Through a series of simple questions, with help and information icons just a click away, it tries to
identify the type of legal problem in question, informing the user in a simple way of the regulation
that deals with the matter and clarifying the best channel to be followed. After this first filter, the
second phase is called the ‘online negotiation tool’, which provides the option (since it is
voluntary) to the parties to negotiate with each other through a private chatroom, in which they can
interact confidentially for a few weeks to try to come to an agreement. In 40% of the cases, they
succeed, and the fee is refunded. Decisions became then enforceable. If they do not reach an agreement,
they go on to the third phase, ‘facilitation’, in which a member of the Court staff (CRT
Manager) tries to mediate, by phone or email. It is also a confidential phase. Also failed this attempt,
the case is assigned to a Court for its final decision (‘CRT final decision’). The parties
are called to make allegations within the set time, which can be extended at the request of the parties.
If necessary, a hearing can be held by videoconference. The decision is appealable before the Supreme
Court of British Columbia within 60 days (also extendable, if deemed necessary). Logically, the
enforcement of the resolution will also be judicial, if necessary. The CRT default and final decisions
are available to the public online.
- The second model is the English procedure known as ‘Money
claims’. It is applicable to claim debts of less than GBP 10,000, if there is no joint of parties
in the case. Although the request can be sent by post, there is a dynamic tool that, as in the
Canadian case, asks the user questions until he defines his claim. The website also allows you not only
to identify the fees that you will have to pay, but also gives you information about the probability
that, if the plaintiff wins the process, the defendant will end up paying you. This is achieved by
linking to a page called ‘Trustonline’, which allows citizens and companies to immediately
access information about whether the person or company that may be sued (or, even before the dispute, to
sign a contract with her) appears in the records of the courts of the United Kingdom as a debtor or if
she has had or has previous problems in the courts (for example, to verify this data of the tenant
before signing a rental contract with him) - price: GBP 6 per search. Once the ‘claim’ is
sent directly online, the defendant has a period of 19 days to answer, which can be extended up to 33,
if necessary. For the holding of the (in-person) hearing, the parties receive a form to indicate which
days best suitable for them. This procedure will start only by request of the parties.
- It cannot be ruled out if in a few years a large part of the
lawsuits will be resolved by artificial intelligence and the processes can be started from our mobiles
so that a robot can resolve them, as they have been doing since 2017 in Hangzhou, China, through the
‘Smart courts’, online courts that operate 24 hours a day, seven days a week - already
exported to Beijing and Guangzhou - to resolve issues on digital issues.[131] But, for the moment, it seems
more prudent to consider only solutions that do not alter the dynamics of our current civil procedures
(in fact, for example, they provide for the holding of a hearing), but which, done online, simplify
their path for the citizen, as he is helped in the preparation of his claim through the browsers that
are focusing his answers and thus facilitating the introduction of his allegations and his evidence.
What is certain is that the implementation of these procedures must be done very carefully so as not to
create rigid procedures that end up limiting the parties’ mechanisms of defence. But it does not
seem that this is happening in the countries mentioned, whose citizen satisfaction index is extremely
high.[132]
5 Final
Remarks
- FIRST. The right of access to justice understood in its basic
content of entering the court is the subject of widespread recognition in practically all countries
worldwide (even at the constitutional level in many of them) and is a basic pillar of international
texts recognizing human rights. In addition, both the laws and the jurisprudence have been recognizing
multiple complementary guarantees that make this right more effective (for example, the rights to a
reasoned judgment, fair trial, the right to execution, and the right to appeals).
- SECOND. There is also a global trend to also recognize an added
value to the right to access to justice, in the understanding that citizens expect and deserve from the
courts the material protection of their substantive rights (what has been called by the doctrine
‘Justice 2.0’).
- THIRD. It is also possible to observe at national and supranational
levels an overall tendency to approach justice to citizens (through a bottom-up approach) and to try to
spread it to as many people as possible, with special attention to the most vulnerable. This trend is
what we have called in this study the ‘fourth wave of access to justice’. We are probably
living the most privileged moment in history to facilitate general access to justice; in particular,
thanks to the technological developments we all have within our reach. Obviously, as Cappelletti pointed
out, ‘it is inconceivable to provide Rolls Royce justice to each person and each claim’, but
we are closer to, at least, providing everyone with the being able to access a motorized vehicle with
enough power to get around. As we have seen throughout these pages, even countries that are
underdeveloped or that are suffering conditions of violence or poverty are making tremendous efforts in
this direction, perhaps knowing that it is one of the most powerful weapons to overcome their situation.
- FOURTH. These advances towards the improvement of the access to
justice do not come only from the field of Procedural Law, not even from the legal area of expertise, as
was the case until a few years ago. It may involve many other aspects, such as the economic,
statistical, socio-cultural, ethnic, linguistic, etc. Therefore, future works in this field may consider
these aspects and use the specific information provided by these areas to develop more accurate and
case-specific solutions[133].
Abbreviations and Acronyms
|
|
|
|
ADR
|
Alternative Dispute Resolution
|
|
AI
|
Artificial Intelligence
|
|
Art
|
Article/Articles
|
|
CAD
|
Canadian Dollar
|
|
CEPEJ
|
Conseil de l'Europe Commission européenne pour
l’efficacité de la justice (Council of Europe European
Commission for the efficiency of justice)
|
|
Cf
|
Confer
|
|
Ch
|
chapter
|
|
CJEU
|
Court of Justice of the European Union
|
|
ECHR
|
European Convention of Human Rights
|
|
ECtHR
|
European Court of Human Rights
|
|
ed
|
editor/editors
|
|
edn
|
edition/editions
|
|
eg
|
exempli gratia (for example)
|
|
ELI
|
European Law Institute
|
|
etc
|
etcetera
|
|
EU
|
European Union
|
|
EUCFR
|
European Charter of Fundamental Rights (EU)
|
|
EUCFR
|
European Charter of Fundamental Rights
|
|
ff
|
following
|
|
FRA
|
European Union Agency for Fundamental Rights (EU)
|
|
FRA
|
Fundamental Rights Agency
|
|
GBP
|
British Pound
|
|
GCCP
|
Code of Civil Procedure (Germany)
|
|
GG
|
Grundgesetz (Federal Constitution)
(Germany)
|
|
HIIL
|
Hague Institute for Innovation of Law
|
|
ICCPR
|
International Covenant on Civil and Political Rights
|
|
ICCPR
|
International Covenant on Civil and Political Rights
|
|
NGO
|
Non-governmental organization
|
|
No
|
number/numbers
|
|
ODR
|
Online Dispute Resolution
|
|
OECD
|
Organisation of Economic Co-operation and Development
|
|
para
|
paragraph/paragraphs
|
|
SDG
|
Sustainable Development Goals
|
|
Sec
|
Section/sections
|
|
SME
|
Small and medium Enterprise
|
|
UKCPR
|
Civil Procedure Rules (UK)
|
|
UN
|
United Nations
|
|
UNDRIP
|
United Nations Declaration on the Rights of Indegenous Peoples
|
|
UNIDROIT
|
Institut international pour l'unification du droit
privé (International Institute for the Unification of
Private Law)
|
|
v
|
versus
|
|
vol
|
volume/volumes
|
Legislation
International/Supranational
European Convention of Human Rights (ECHR).
European Charter of Fundamental Rights (EUCFR).
American Convention of Human Rights.
African Charter of Human and People’s Rights.
Universal Islamic Declaration of Human Rights.
International Covenant on Civil and Political Rights (ICCPR).
United Nations Universal Declaration of Human Rights.
International Convention on the Rights of persons with
Disabilities.
United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).
ELI/UNIDROIT Model European Rules of Civil Procedure.
Constitution (Poland).
Constitution (Ukraine).
Constitution (Portugal).
Constitution (Italy).
Constitution (Korea).
Bill of Rights Act 1990 (New Zealand).
Constitution (Mexico).
Constitution (Spain)
Constitution (Germany).
General Civil Code (Austria).
Code of Civil Procedure (Germany).
Civil Procedural Law (Spain).
Royal Decree Law 6/2023, 19 December 2023 (Spain).
Law 8/2021, 2 June 2021 (Spain).
Bill C-15, 21 June 2021 (Canada).
Cases
International / Supranational
Oleksandr Volkov v Ukraine (ECtHR), Judgment 9
January 2013 [ECLI:CE:ECHR:2013:0109JUD002172211].
Fischer v Czech Republic (ECtHR), Judgment 17 March 2015 [ECLI:CE:ECHR:2022:0224JUD002431413].
Fälie v Romania (ECtHR), Judgment 19 May 2015
[ECLI:CE:ECHR:2015:0519JUD002325704].
Sukhorubchenko v Russia (ECtHR), Judgment 10 February 2005
[ECLI:CE:ECHR:2005:0210JUD006931501].
Hennings v Germany (ECtHR), Judgment 16 December 1992
[ECLI:CE:ECHR:1992:1216JUD001212986].
Mikulová v Slovakia (ECtHR), Judgment 6 December 2005
[ECLI:CE:ECHR:2005:1206JUD006400100].
Mindo Srl v European Commission (CJEU), Judgment 5
October 2022 [ECLI:EU:T:2011:561].
García Manibardo v Spain (ECtHR), Judgment 15
February 2000 [ECLI:CE:ECHR:2000:0215JUD003869597].
S.A. Sotiris and Nikos Kouras Attee v Greece (ECtHR),
Judgment 16 November 2000 [ECLI:CE:ECHR:2000:1116JUD003944298].
Anghel v Italy (ECtHR), Judgment 25 June 2013
[ECLI:CE:ECHR:2013:0625JUD000596809].
Oceano Grupo Editorial SA v Rocio Murciano (CJEU), Judgment 27 June 2000 () [ECLI:EU:C:2000:346].
LB and Others v College van burgemeester (CJEU), Judgment 14
January 2021 [ECLI:EU:C:2021:7].
Protect Natur-, Arten- und Landschaftsschutz Umweltorganisation (CJEU), Judgment 20 December 2017 [ECLI:EU:C:2017:987].
Meta Platforms Ireland (CJEU), Judgment
28 April 2022 (). [ECLI:EU:C:2022:322].
MA v Ibercaja Banco SA (CJEU), Judgment
17 May 2022 (). [ECLI:EU:C:2022:394].
Vicente v Delia (CJEU), Judgment 22 September 2022 (). [ECLI:EU:C:2022:720].
IO v Impuls Leasing România (CJEU), Judgment 17 May
2022 (). [ECLI:EU:C:2022:396].
L and Unicaja Banco S.A. (CJEU), Judgment 17 May 2022
[ECLI:EU:C:2022:397].
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Case Law’ (2017) (1) International Journal of Procedural Law.
Watson D, Berg J and Laponi L, ‘Actioning the Human Rights Agenda and issues of Access to
Justice’, in L Weber and M Marmo (ed), A Research Agenda for a Human Rights
Centred Criminology (Springer 2024).
Whytock C A, ‘Transnational access to justice’ (2020) 38 Berkeley Journal
of International Law.
Wrbka S, European Consumer Access to justice revisited (Cambridge 2019).
Zuckerman A and Cranston R, Reform of Civil Procedure. Essays on Access
to Justice (Oxford 1995).
[1] Digest 44.7.51. Celsus:
‘Nihil aliud est actio quam ius quod sibi debeatur, iudicio persequendi’.
[2] Cf M Capelletti, B Garth and N
Trocker, ‘Access to justice: comparative general report’ (1976) Rabels Zeitschrift für
ausländisches und internationales Privatrecht 672.
[3] On this issue, see also on the
‘Constitutionalization and Fundamentalization of Access to Justice’ the interesting study of
T Domej, in Chapter 2 of the Part IV of this publication.
[4] See more extensively about the
European legal recognition of this right, E Storskrubb and J Ziller, ‘Access to Justice in European Comparative Law’, in F Francioni, Access to Justice as a
Human Right (Oxford University Press 2007) 177 ff.
[5] Cf F Maultzsch, Report for the International Association of Procedural Law Seoul
Conference, 2014, 2019. This indirect recognition also happens outside
Europe in countries such as Canada.
[6] Cf P Butler and C Herbert,
‘Access to justice vs access to justice for Small and Medium-sized enterprises: the case for a
bilateral arbitration treaty’ (2014) 26 New Zealand Universities Law Review 196.
[7] In Chile, not having still a clear
recognition of the right, they proposed a text for a new Constitution -text rejected in September 2022,
which even included a right to access to environmental justice.
Art 108: ‘1. Every person has the right to full access to justice and to
request from the courts of justice the effective protection of their rights and legitimate interests, in
a timely and effective manner in accordance with the principles and standards recognized in the
Constitution and the laws. 2. It is the duty of the State to remove the social, cultural, and economic
obstacles that prevent or limit the possibility of going to the courts for protection and the exercise
of their rights. 3. The courts must provide adequate attention to those who submit petitions or queries
before them, always granting dignified and respectful treatment, in accordance with the law. 4. The
State ensures the right to free and comprehensive legal advice, by lawyers authorized to practice the
profession, to any person who cannot obtain it on their own, in the cases and in the manner established
by the law (…) 5. It is the duty of the State to grant specialized legal assistance for the
protection of the best interests of children and adolescents, especially when they have been subject to
protection measures. In addition, you must try to create all the necessary conditions for the protection
of your rights. 6. The State must guarantee that the bodies involved in the process respect and promote
the right to access justice with an intercultural perspective. 7. People have the right to specialized
legal assistance, interpreters, intercultural facilitators and consultative expert opinions, when they
require it and cannot provide it themselves. 8. The State guarantees access to environmental
justice’.
[8] In Israel the right to access to
court was not expressly recognised in the list of fundamental rights guaranteed by their Basic Laws but
was declared as a constitutional right by the Supreme Court in 2003. Cf M Ofer-Tsfon and L Zer-Gutman,
‘Access to justice in Israel’, in H Whalen Bridge, The Role of
Lawyers in Access to Justice (Cambridge University Press 2022).
[9] Cf T Domej,
‘Constitutionalisation and Fundamentalisation of Civil Procedure’, in Chapter 2, Part IV of
this publication, 9.
[10] Interpreting it, recently, for
all, Case Fischer v Czech Republic, Decision of 24
February 2022, para 39: ’The Court reiterates that Article 6 § 1 of the Convention
embodies the “right to a court”, which guarantees not only the right to institute
proceedings but also the right to obtain a determination of the dispute by a court’.
[11] This
comprises:
a) The right to an appeal to competent national organs against acts of violating
his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in
force;
b) The right to be presumed innocent until proved guilty by a competent court or
tribunal;
c) The right to defence, including the right to be defended by counsel of his
choice;
d) The right to be tried within a reasonable time by an impartial court or
tribunal.
[12] UN General Assembly,
‘Transforming our world: the 2030 Agenda for Sustainable Development’ (A/RES/70/1, 2015)
https://sdgs.un.org/2030agenda accessed 21 October 2024.
[13] Cf S Maranlou, Access to justice in Iran (Cambridge University Press 2014) 34.
[14] Cf B Hess, ‘EU Trends in
Access to Justice’ in B Hess, L Cadiet and M Requejo (ed), Privatizing
dispute resolution: trends and limits (Ed. Nomos 2019) 189.
[15] Cf M Capeletti and B Garth,
‘Access to justice: the newest wave in the worldwide movement to make rights effective’
(1978) 27 Buffalo Law Review 181. In addition, from the same authors with N Trocker, ‘Access to
justice, variations and continuity of the world-wide movement’ (1982) Rabels Zeitschrift für
ausländisches and internationales Privatrecht, 664-707.
[16] Cf E Palamer, T Cornford, A
Guinchard and Y Marique, Access to justice (Hart
Publishing 2018) 39.
[18] Cf C A Whytock,
‘Transnational access to justice’ (2020) 38 Berkeley Journal of International Law; T C W
Farrow, ‘What is access to justice?’ (2014) 51 (3) Osgoode Hall Law Journal.
[19] Cf M Galanter, ‘Access to
justice in a world of expanding social capability’ (2010) 37 Fordham Urban Law Journal, 118. See
also in detail the history of this right, L Friedman, ‘Access to justice. Some historical
comments’ (2004) Fordham Law Review, 927.
[20] In Germany, for
example, the first steps were taken in 1919 and 1923; in England, in 1949; in the United States, the
reforms took place from 1965. Cf M Capeletti and B Garth, El acceso a la
justicia. La tendencia en el movimiento mundial para hacer efectivos los derechos (Ed. Fondo de Cultura Económica) 25.
[21] On this topic, see Chapter 6 of
this Part III. Even the United Nations have recognized legal aid as a fundamental right, at least in the
criminal field: ‘United Nations Principles and Guidelines on Access to legal aid in Criminal
Justice Systems’ https://www.unodc.org/documents/justice-and-prison-reform/UN_principles_and_guidlines_on_access_to_legal_aid.pdf accessed 21 October 2024. To give an example of their national recognition and their
link to access to justice, in Spain the Constitutional Court pointed out in this regard that:
‘Free justice must be granted to those who cannot afford the costs incurred by the process
(including the fees of the Lawyers and the customs duties of the Attorneys, when their intervention is
mandatory or necessary in view of the characteristics of the case) without failing to attend to their
vital needs and those of the family, so that no one is deprived of access to justice due to lack of
economic resources. In other words, the procedural expenses of those who, if that payment is required,
would be faced with the alternative of ceasing to litigate or endangering that personal or family
subsistence minimum must be covered’ (STC 136/2016, Judgment of 18 July 2016).
[22] Financial issues on access to
justice will be address in depth later in this Part III.
[23] Cf M Capeletti and B Garth
(n 20) 35 ff.
[24] A Canadian report showed this
conclusion, as referred by K Roach and L Sossin in ‘Access to justice and beyond’ (2010) 60
U. Toronto Law Journal 373, 378.
[25] See in the Judgment of the
Oleksandr Volkov v Ukraine (ECtHR), Judgment of 9
January 2013, para 88-91.
[26] Finally introduced since 2013,
after intense debates. See in this sense: ‘In 2012, the Italian Constitutional Court decided that
it would annul the requirement of mandatory mediation in Legislative Decree no. 28/2010. It had found
that the Government had gone beyond the scope of the European Mediation Directive and Italian Law
69/2009 allowing the Government to introduce a decree on civil and commercial mediation.18 In 2013,
mandatory mediation attempts were reintroduced, this time based on Decree 69/13 on Urgent Dispositions
to Relaunch the Economy (the decree was converted into Law No. 98 of 2013).19 As the title of this
Decree indicates, these attempts were reintroduced for the benefit of the Italian economy by relieving
the overburdened Italian courts. Access to justice was and is under threat in Italy’. Cf C H van
Rhee, ‘Mandatory Mediation before litigation in civil and commercial matters: an European
perspective’ (2021) 4 Access to Justice in Eastern Europe 12, 13.
[27] Cf C H van Rhee (n 26)
20.
[28] Ibid: On England, see 9; on
Austria, 17 and on Germany, 15.
[29] Cf Wissler, note 9 in African
Studies.
[30] In this regard, the European
Union Agency for Fundamental Rights understands that: ‘access to justice encompasses the right to
a fair trial and the right to an effective remedy as guaranteed by Art. 47 of the ECFR, Arts 6 and 13
ECHR and Arts 2(3) and 14 of the International Covenant on Civil and Political Rights’.
[31] These set of guarantees linked
or derived from the right to access to justice are explained in detail in the next Chapter.
[32] See Fälie v Romania (ECtHR), Judgment of 19 May 2005, 23570/04
[ECLI:CE:ECHR:2015:0519JUD002325704].
[34] Cf A De la Oliva Santos,
Cápsulas para la memoria (1966-2006) (Ed. CERA,
Madrid 2006) 208. In a similar sense, in his story entitled ‘The justice of Evaristo’,
Professor Satta gave a similar warning to the Italian proceduralists, indicating that their work should
not be an end in itself and, therefore, that if the humanity of the trial was lacking in his studies and
treatises, the science, the academia, the justice was merely reduced to ‘a game’. Cf S
Satta, ‘Un giudizio di conciliazione overo La giustizia di Evaristo’ (1963) 5-6 Rivista del
Dritto Commerciale 228, 230.
[35] Cf H Ahrens, H Fischer, V
Gómez and M Nowak (ed),
Equal access to justice for all and Goal 16 of the Sustainable Development Agenda:
challenges for Latin America and Europe (Lit 2019).
[36] Cf I Van der Meene and B Van
Rooij, Access to justice and legal empowerment (Ed
Leiden University Press 2008) 6. As defined by Trevor, ‘put the public at the center of the
justice system’ (cf C W F Trevor, ‘What is access to justice?’ (2014) Osgoode Digital
Commons 959). Also see J Roberge, ‘Access to justice in the 21st century: towards an empirical and
plural approach’ (2020) 54 Revue Juridique Themis,
487.
[37] Goal already legally enshrined
in the recent OECD, Recommendation of the Council on Access to Justice and
People-centred Justice Systems (12 July 2023): ‘Design and deliver
people-centred legal and justice services by […]: b)ensuring that legal, justice and related
services are: i. designed with people at the centre, taking into account their rights and possible
vulnerabilities, and based on empirical understanding of their legal and justice needs, preferences and
capabilities’, https://legalinstruments.oecd.org/en/instruments/OECD-LEGAL-0498 accessed 21 October 2024.
How to develop this goal? The
Session Notes of the 2023 OECD Global Roundtable on Equal Access to Justice (December 2023) developed it in more detail: ‘People-centred justice offers a
strategy for governments to meet this challenge, at least within the justice context. Regular programmes
of legal needs assessment, evaluation of ‘what works’, the responsive adaptation of justice
policy according to this evidence, and the development and financing of services to address
people’s needs can help ensuring resilience and adaptability to changing circumstances’,
https://web-archive.oecd.org/temp/2024-01-17/666067-2023oecdglobalroundtableonequalaccesstojusticemakingpeople-centredjusticehappen.html accessed 21 October 2024.
[39] In this sense, Section I of the
OECD Recommendation (n 37): ‘People-centred justice data refers to data that is collected in line with data
protection standards directly from people, businesses and communities, and which relates to the justice
problems they face, the impact these problems have, the justice they want and need, their decisions
about resolving their justice problems, their experiences with justice services and their ability to
obtain a fair outcome’.
[40] S Wrbka called this new approach to this right: ‘Access to
Justice 2.0’ (cf S Wrbka, European Consumer Access to justice revisited (Cambridge
2019) 28).
[41] Among all the
doctrines over this right to Access, we highlight the following works: A Zuckerman and R Cranston,
Reform of Civil Procedure. Essays on Access to Justice (Ed. Oxford 1995); D Rhode, ‘Access to justice: connection principles to
practice’ (2004) 17 Georgetown Journal of Legal Ethics, 369; M Galanter, ‘Access to justice
in a world of expanding social capability’ (2010) 37 Fordham Urban Law Journal, 1; E Hurter,
‘Access to justice: to dream the impossible dream?’ (2011) Comparative and International Law
Journal of Southern Africa; P Hughes, ‘Advancing access to justice through generic solutions: the
risk of perpetuating exclusion’ (2013) Windsor Y B Access Just 31; T Farrow, ‘What is access
to justice?’ (2014) 51 Osgoode Hall Law School of York Law Journal; C Crawford and D Bonilla
Maldonado, ‘Access to justice: theory and practice from a comparative perspective’ (2020) 27
Indiana Journal of Global Legal Studies, 1; J F Roberge, ‘Access to justice in the 21st century:
towards an empirical and plural approach’ (2020) 54 RJT, 487; X Kramer, A Biard, J
Hoevenaars and E Themeli, New Pathways to Civil Justice in Europe (Ed. Springer 2021); A Storgaard, ‘ Access to justice research: on the way to a
broader perspective’ (2022) Oñati Socio-Legal Series; N Creutfeldt, A Kypriniades, B Bradford and J Jackson, Access to
Justice, Digitalization and Vulnerability: Exploring Trust in Justice (Perspectives on Law and Access to
Justice) (Oxford 2024); D Watson, J Berg and L Laponi, ‘Actioning the
Human Rights Agenda and issues of Access to Justice’ in L Weber and M Marmo (ed), A Research Agenda for a Human Rights Centred Criminology (Springer 2024); R Brescia, ‘The Access to justice crisis and the rise of legal
technology’ in R Brescia (ed), Lawyer Nation (New York University Press 2024).
[44] Cf OECD Session Notes (n 43) 14.
[45] For example, for the special
protection of children, the OECD adopted a Child-Friendly Justice Framework to ‘support countries
in developing a government-wide strategy to strengthen child-friendly practices in the justice
system’. This framework, built ‘on the analysis of the legal needs of children and
challenges they face when confronting justice problems’, provided ‘a basis for
child-friendly reforms of justice systems, in line with international standards and obligations’
(cf OECD, ‘OECD Child-Friendly Justice Framework: Building a people-centred justice system’,
OECD Public Governance Policy Papers, No 41 (OECD
Publishing, Paris), https://doi.org/10.1787/6a60970e-en accessed 21 October 2024).
[46] In this sense, the OECD Report
of 2019 (n 42) 7.
[47] ‘Practically, this means
engaging directly with people -- and especially with disadvantaged groups -- on their greatest justice
needs, problems and experiences. Such interactions can shed light on the disconnect that many people
experience between their lives and concerns and the systems and services of the justice sector. They can
also help identify and address procedural bottlenecks, structural barriers (e.g., complex legal
language, technological challenges, physical accessibility issues, or systemic biases), and service
inefficiencies and gaps (e.g., lack of support for certain legal issues, insufficient geographical
coverage, or inadequate representation for certain groups)’ (cf OECD Session Notes (n 43) 6).
[48] For example, in the OECD Session
Notes, they cite the case of Egypt, where they have developed Children Courts and a Child Helpline, as a
‘way for children to reach out for help and support’. Or the example of Latvia, where
child-friendly and multi-agencies services have been established for child victims and witnesses of
violence or abuse (cf OECD Session Notes (n 43) 15).
[49] For concrete examples of good
practices in this regard, see OECD Session Notes (n
43) 15 and 16.
[50] HIIL official website accessible
at https://www.hiil.org/ accessed 21 October 2024. Their current motto in their webpage is a very interesting
question regarding this topic: ‘How fair is justice if it does not get you anywhere?’.
[51] J G Roberts Jr, ‘2023
Year-End Report on the Federal Judiciary’ (2023) 6, https://www.supremecourt.gov/publicinfo/year-end/2023year-endreport.pdf accessed 21 October 2024, cited by C Chien, M Kim, A Raj and R Rathis, ‘How LLMs
Can Help Address the Access to Justice Gap through the Courts’ (2024) Loyola of Los Angeles Law
Review, 1 (open access).
[54] Cf R Susskind, Online Courts and the future of Justice (Oxford University Press
2019) 65.
[55] OECD Recommendation (n 37),
Point I.
[56] In this sense,
the CEPEJ indicates as one of the ways to focus on court users ‘the efforts made by courts to
understand their needs and expectations through the organization of regular surveys, workshops,
interviews, meetings and other forms to enhance two-way communication, promoting quality and
responsibility’, cf European Commission (n 52) 103.
[57] Cf OECD Session
Notes (n 43) 21. An interesting analysis of this
topic in 18-23.
[58] Cf P Van Der Grinten,
‘Self-representation and the courts: some policy observations from the Netherlands’, in X
Kramer, New Pathways to Civil Justice in Europe (Springer 2021) 195. For example, for matrimonial issues they
implemented the ‘Divorce without Damage Project’ or the institution of the ‘Consulting
Judges’, with which the parties could dialogue and, if possible, look for a more informal
resolution of the conflict.
[59] OECD Expert Roundtable,
Equal access to justice (Background notes, 2015) 14.
[60] Cf E Storskrubb and J Ziller,
Access to Justice in European Comparative Law (Oxford
University Press 2007), 191.
[61] Cf R Susskind, The end of lawyers? Rethinking the nature of legal services (Oxford 2010) 232.
[62] Law Padi accessible at
https://lawpadi.com/. About these initiatives, O Longe, ‘Increasing access to justice through
technology’, in S Peter de Souza, Technology, innovation and access to
justice: dialogues on the future of Law (Edinburgh University Press 2021).
[63] See examples of Comic contracts
created by the company Creative Contracts at https://creative-contracts.com/examples/. Also, about these kind of initiatives, J Nagtegaal, ‘Justice for all: why South
Africa should invest in legal technology’ (2019) Daily Maverick.
[64] See ‘Australia’s
first visual employment contracts launched’ (2018) available at https://www.aurecongroup.com/about/latest-news/2018/may/visual-employment-contract accessed 21 October 2024.
[65] The idea of ‘legal
triage’ was also sponsored by Susskind; cf R Susskind (n 61) 240.
[67] OECD Expert Roundtable (n 59)
17.
[68] In Austria, for example, apart
from the ordinary information given by the court, once a month there is an open day set up so that
citizens can come to ask their questions.
[69] For example, in the United
States, Hotdocs, Probono Net, Stateside Legal, Self-represented litigants Network, Limited License Legal
technicians in Washington, Navigators in New York, and Justice Corps in California. In addition, to be
remarked the development of the Stanford Legal Design Lab based in the Stanford Law School.
[72] See in this
sense, for example, the Case Anghel v Italy (ECtHR), Judgment of 25 June 2013 [ECLI:CE:ECHR:2013:0625JUD000596809], in which
the European Court found that the court-appointed lawyer gave the client incorrect information regarding
both time limits for lodging an appeal and the type of appeal admissible and therefore, that this
conduct prevented the client from challenging the decision in good time and proper form.
[73] Cf CEPEJ, For a better integration of the user in the judicial systems (2021) 8 ff. There is a clear doctrine of the ECHR on the importance of the
notification of judicial decisions to guarantee the right to access to justice; in this sense, the Court
has repeatedly sustained that ‘the right to access include the right to receive appropriate
notification of judicial decisions, particularly when the possibility of challenging the decision rests
on receiving such information’ (Cases Sukhorubchenko v Russia (ECtHR), Decision of 15 January 2004 [ECLI:CE:ECHR:2004:0115DEC006931501]; Hennings v Germany (ECtHR), Decision of 16 December 1992
[ECLI:CE:ECHR:1992:1216JUD001212986]; Mikulová v Slovakia (ECtHR), Decision of 6 December 2005 [ECLI:CE:ECHR:2005:1206JUD006400100] inter alia).
[74] More in detail, on procedural
costs, see Chapter 4 of this Part III.
[75] Rebecca Sanderfur, sociologist
of the Stanford University, after studying the impact of the work of lawyers on the outcome of trials,
he stated that ‘a litigator with a lawyer is five times more likely to win a trial than someone
who defends himself’. Cf R Sanderfur, ‘Access to what?’ (2019) 148 (1) Dedalus, 986.
[76] More in detail, on procedural
costs, see Chapter 6 of this Part III.
[78] Cf S Buhal, ‘Access to
justice for unrepresented litigants: a comparative perspective’ (2009) 42 Loyola of Los Angeles
Law Review 979, 983.
[79] Cf Cubillo López, I.J,
165.
[80] Rule 14 ELI/UNIDROIT Model
European Rules of Civil Procedure: ‘Except when legal representation is required by law, parties
have a right to represent themselves in proceeding’.
[81] Cf W Hau, ‘Las
pequeñas causas en el proceso civil: tribunales, vías procesales (tracks) y procedimientos
de escasa cuantía’ (2019) 1 Revista Ítalo-española de Derecho Procesal 102.
This author specifically points out that in some countries, appeals are not allowed but another way of
attacking the decision issued in the small claims procedures (challenging hearing in Germany (Sec 321
German Code of Civil Procedure (GCCP); by means of a similar remedy in Austria (only by annulment or
error of law); complaint in Japan or Switzerland).
[82] More in detail, on procedural
costs, see Chapter 6 of this Part III.
[83] Advisory Council of European
Judges, Opinion No 11 (2008), para 32.
[84] Curiously in mediation a simple
and understandable language is regularly used.
[85] For example, this is provided
expressly in Spain for people with disabilities where the Civil Procedural Law has been recently adapted
to the international requirements provided by the International Convention on the Rights of Persons with
Disabilities of 2006. Thus, the Law 8/2021, of June 2, introduced a new section in Article 7, which
states the following: ‘In the processes in which people with disabilities participate, the
necessary adaptations and adjustments will be made to guarantee their participation in equal
conditions’, adaptations that may be requested by the parties, by the Public Prosecutor or ex
officio. It requires adapting, when necessary, their communication (for example, through a sign
interpreter), their understanding, requiring the use of ‘clear, simple and accessible
language’ based on their personal characteristics and needs, and their interaction with the
environment. Good examples of this adaptation are the Pilot Projects for easy-to-read judgements that
are being implemented in Courts in Asturias, Madrid, La Rioja and Andalusia. They have achieved to bring
court decisions closer to their recipients, so that they understand what aspects will affect them and
for this purpose they clarify the legal terms used in boxes, including pictograms on the concepts that
the resolution deals with. See more in detail the ‘Guide of best access practices for people with
disabilities’ (2021) https://www.poderjudicial.es/cgpj/es/Temas/Igualdad-de-Genero/Guias-y-estadisticas/Guias-del-Consejo-en-la-materia/Guia-de-buenas-practicas-sobre-el-acceso-a-la-justicia-de-las-personas-con-discapacidadf accessed 21 October 2024 .
[89]A detailed study of the evolution of
the legal architecture could be found in L Mulcahy, Legal Architecture: Justice,
Due Process and the Place of Law (Routledge 2011). Also interesting on this
topic, N W Spaulding, ‘The enclosure of justice: courthouse architecture, due process and the dead
metaphor of trial’ (2012) Yale JL & Human.
[90] Cf L Mulcahy (88)
151-159.
[91] Cf L Mulcahy and E Rowden,
The Democratic Courthouse A Modern History of Design, Due Process and
Dignity (Routledge 2019). And also in L Mulcahy (n 88).
[94] HM Courts & Tribunals
Service, ‘Court and Tribunal Design Guide’ (2019) https://assets.publishing.service.gov.uk/media/66be1e1ac909b91981323ee8/Court_and_Tribunal_Design_Guide_v3..pdf
accessed 21 October 2024.
[95] Cf HM Courts & Tribunals
Service (n 93) 9.
[98] Women are a group that are
marginalized in not few countries. As an example, in the Sub-Saharan countries, the gender
bias/discrimination was one of the most serious barriers (the second more significant) to access to
justice (cf 49). There is also a gender gap identified as there are big differences among women
depending on their marital status: ‘Married women might be engaged in very different economic
activities than never-married women, implying different judicial needs for business and issues related
to labor contracts. Marriage might also protect against some forms of gender-based violence against
women, albeit offset by potentially higher potential for intimate partner violence’ (cf 53).
[99] Art 11 bis Spanish Civil Procedural Law: ‘To defend the right to
equal treatment and non-discrimination, in addition to the affected persons and always with their
authorization, the Independent Authority for Equal Treatment and Non-Discrimination will also be
legitimized, as well as, in relation to affiliated persons or associated with them, political parties,
unions, professional associations of self-employed workers, organizations of consumers and users and
legally constituted associations and organizations that have among their purposes the defence and
promotion of human rights’.
[100] Better known as ‘Pigs
in distress’ because it was about the legal standing to challenge the granting of an authorization
from the city council of a town in the Netherlands to build a new barn for breeding sows.
[101] In this same line of previous
cases such as Protect Natur-, Arten- und Landschaftschutz Umweltorganisation v
Bezirkshauptmannschaft Gmünd, C-664/15 (CJEU), Judgment of 20 December 2017
[ECLI:EU:C:2017:987].
[102] Meta
Platform Ireland (Facebook) v Bundesverband der Verbraucherzentralen und
Verbraucherverbände, C-319/20 (CJEU), Judgment of 28 April 2022
[ECLI:EU:C:2022:322].
[103] See Bowdon the difficulties
to get to the court in three poorest countries in the world: Sierra Leone, Tanzania and Zambia (cf R
Bowdon, ‘Access to justice in Africa’ (2019) (13) Policy Brief).
[104] OECD Session Notes (n 43) 12.
[105] Cf W H Malik and C L Maghani,
Voices of the vulnerable: promoting access to justice in Sub-Saharan
Africa (World Bank 2023) 34.
[106] Cf ibid, 61: ‘Lack of trust in the judiciary is considered the
leading barrier to the access to justice and is strongly related to other barriers, while corruption is
the most direct cause for distrust in the judiciary’.
[107] For example, this lead in
Afghanistan (a country where the 69% of the population is illiterate) to the rehabilitation of customary
courts, taking into account their lack of confidence in official courts.
[108] On this topic, more in
detail, see E Flynn, Disabled justice? Access to justice and the UN Convention
on the Rights of Persons with Disabilities (Routledge 2015).
[109] This Law introduces a new
section in Art 7, which states the following: ‘In the processes in which people with disabilities
participate, the necessary adaptations and adjustments will be made to guarantee their participation in
equal conditions’, adaptations that may be requested by the parties, by the Public Prosecutor or
ex officio. It requires adapting, when necessary, their communication (for example, through a sign
interpreter), their understanding, requiring the USE of ‘clear, simple and accessible
language’ based on their personal characteristics and needs, and their interaction with the
environment.
[110] A wonderful treaty on this
issue is the work of S Wrbka, European Consumer Access to Justice
revisited (Cambridge University Press 2015) 28. Also on this topic C E F,
Rickett and and T Telfer, International perspectives on consumers’ access to justice (Cambridge University Press 2003), in particular Part I.
[112] Cf P Butler and C Herbert,
‘Access to justice vs access to justice for Small and Medium-sized enterprises: the case for a
bilateral arbitration treaty’ (2014) 26 New Zealand Universities Law Review, 2 and 12.
[113] See P Butler and G Whelan,
‘Does the Dispute Resolution Regime in Europe Really Serve MSMs?’, in B Beamont, A Foucard
and F Brodlija (ed), International Arbitration: Quo Vadis? (Wolters Kluwer 2022) Ch 6.
[115] For example, in the context
of the ECHR, the ‘right to a court of which the right of access to a court is one aspect, is
deemed as not absolute and subject to limitations permitted by implication, in particular as regards the
conditions of admissibility of an action, since by its very nature it calls for regulation by the State,
which enjoys, in that regard, a certain margin of appreciation’. However, the European Court of
Human Rights cannot allow courts to make an unreasonable or excessively strict interpretation of these
requirements that would effectively restrict a litigant’s right to effective legal remedy. Various
examples can be found. First, the Court has had to rule on the correct interpretation of the reasons for
lodging an appeal. An example of this is the judgment of the European Court of Human Rights, which found
against Spain in Sociedad Anónima del Ucieza v. Spain (ECtHR), Judgment of 20 December 2016 [ECLI:CE:ECHR:2016:1220JUD003896308] on the
grounds that ‘the particular combination of facts’ in the case prevented
‘proportionality between the limitations imposed by the High Court and the consequences of those
limitations’. The Spanish High Court had refused an application for cassation on the grounds that
the plea did not exceed the minimum requirement of EUR 600,000, as the plaintiff had stated that the
amount at stake was beyond calculation, even though expert reports included in the documents indicated
that it did in fact exceed EUR 600,000.
Another fundamental issue is the interpretation of deadlines for bringing
appeals, since disproportional limitations can constitute an absolute impediment to the exercise of this
right. In this respect, the Court of Justice of the European Union, in its ruling in the case of
Internationale Fruchtimport GmbH & Co. KG v European Commission (CJEU), Order of 16 November 2010 [ECLI:EU:C:2010:684], states that ‘rules concerning
time-limits for bringing proceedings are mandatory and must be applied by the court in question in such
a way as to safeguard legal certainty and equality of persons before the law (findings of the court in
PKK and KNK/Council, of 18 January 2007, paragraph
101)’, with exceptions only being admissible when ‘fundamental rights are at stake’.
Under European laws, therefore, exceptions are only justified in the case of excusable error that
‘only refers to exceptional circumstances in which, in particular, the conduct of the institution
concerned has been, either alone or to a decisive extent, such as to give rise to a pardonable confusion
in the mind of a party acting in good faith and displaying all the diligence required of a normally
well-informed person (see, specifically, the ruling given in case C-112/09,
SGAE/Commission, of 14 January 2010)’. This occurred, for example, in two
well-known cases brought before the European Court of Human Rights, in which the Court found against
Spain: in the first, Pérez de Rada Cavanilles v Spain (ECtHR), Judgment of 28 October 1998,
Reports 1998-VIII [ECLI:CE:ECHR:1998:1028JUD002809095] para 49, because an appeal had been
dismissed by the court in question on the grounds that an appeal for reversal had been lodged after the
deadline. The Court considered that the applicant had been diligent in lodging the appeal as, in
accordance with court rules, she had sent it by post from Madrid, which is where the decision had been
served, instead of travelling to Aoiz to lodge the application in person, a requirement which the
European Court deemed unreasonable. In the second, in the case of Stone Court
Shipping Company, S.A. v Spain (ECtHR), Judgment of 28 October 2003
[ECLI:CE:ECHR:2003:1028JUD005552400], because the High Court had made a particularly loose
interpretation of the deadline for lodging a cassation appeal. The applicant had lodged the appeal at
the Night Court on the last day of the deadline, which was a Friday, outside the office hours of the
general Registry of the High Court. ‘The Court notes that the applicant cannot be judged to have
acted negligently or to have committed an error in lodging the appeal on the one hand, at the Night
Court on the day before expiry of the deadline, considering that the dies a quo was disputed, and on the
other, outside the office hours of the general Registry of the High Court’. Above all, because the
High Court dismissed the appeal due to it being lodged at the Night Court on a Friday. It would have
been admitted if it had been lodged on any other day of the week, according to a wholly arbitrary rule
imposed by the High Court, which, according to the ECHR, was not included in the applicable regulations.
This is not the case when the parties act out of time by their mistake. As an example, in the
aforementioned case of Fruchtimport, the Court of
Justice ruled that this fundamental right had not been violated because the applicant’s lawyer
lodged the appeal late.
The European courts have also had to rule on the proportionality of dismissing
an appeal that did not comply with other formalities, such as the requirement to deposit a sum of money
before lodging the appeal. Specifically, the European Court, in the case of García Manibardo v Spain (ECtHR), Judgment of 15 February
2000, 38695/97 [ECLI:CE:ECHR:2000:0215JUD003869597] found that Spain had breached the applicant’s
right to an appeal when the court declared her appeal inadmissible owing to her failure to deposit the
sum she had been ordered to pay at a time when her application for legal aid had yet to be decided by
the court. In the case of S.A. Sotiris and Nikos Kouras Attee v
Greece (ECtHR), Judgment of 16 November 2000, 39442/98
[ECLI:CE:ECHR:2000:1116JUD003944298], the appeal had been dismissed because the record of deposit
stamped on the application did not comply with regulations. This error was beyond the applicant’s
control and deprived the company of its right to remedy before the courts. Nevertheless, the requirement
in domestic legal systems that applicants must be represented by a practising lawyer is not considered
an obstacle to seeking legal redress. Specifically, the Court has ruled that the requirement that an
appeal be lodged by a lawyer is not a violation of Article 6.1 ECHR (Masirevic v
Serbia (ECtHR), Judgment of 11 December 2014, 30671/08
[ECLI:CE:ECHR:2014:0211JUD003067108], which cites earlier rulings, such as Gillow v. the United Kingdom (ECtHR), Judgment of 24 November
1986, Series A no 109; Vacher v France (ECtHR), Judgment of 17 December 1996 and Tabor v Poland
(ECtHR), Judgment of 27 June 2006 [ECLI:CE:ECHR:2006:0627JUD001282502]).
The Court of Justice also considers it proportional to require that the
appellant has an interest in the appeal, as this requirement ‘pursues a legitimate aim, which is
none other than to prevent, in the interest of proper administration of justice, theoretical issues with
no legal consequences or, as in the present case, no benefit to the applicant, from being brought before
the court’ (Mindo Srl v European Commission, C-652/11 P (CJEU), Judgment of 5
September 2013 [ECLI:EU:C:2013:229]).
For more examples of traditional barriers on access to justice according to the
ECHR, see M L Villamarin López, ‘Access to civil justice under European Case Law’
(2017) International Journal of Procedural Law, n
1.
[116] For example, Spain in its
recent Royal Law Decree 6/2023, 19 December 2023.
[117] In Spain, for example, Art
265 of the Civil Procedural Law requires that the documents be accompanied with the claim (or the answer
to the claim, for the defendant), without it being possible to do so later if there was the opportunity
to incorporate them at this initial moment.
[118] On the role of the judge when
the parties are unrepresented, see, inter alia, S L
Buhai, ‘Access to justice for unrepresented litigants: a comparative perspective’, (2009) 42
Loyola of Los Angeles Law Review 979, 997.
[119] MA v
Ibercaja Banco SA, C-600/19 (CJEU), Judgment of 17 May 2022
[ECLI:EU:C:2022:394], para 35.
[120] L v
Unicaja Banco SA, C-869/19 (CJEU), Judgment of 17 May 2022
[ECLI:EU:C:2022:397].
[121] Vicente v Delia, C-335/21 (CJEU), Judgment of 22 September 2022
[ECLI:EU:C:2022:720].
[122] IO v
Impuls Leasing Romania IFN SA, C-725/19 (CJEU), Judgment of 17 May 2022
[ECLI:EU:C:2022:396].
[124] More detailed in CEPEJ
Report, 95.
[126] As the CEPEJ remarks,
although in the last couple of years it has slowed down a bit, the increase of specialized courts in
Europe has been of the 38% in the last decade (2010-2020).
[127] CEPEJ Report, 99 and
101.
[130] The distribution of cases is
as follows: 79% were involved in small claims, 16% strata, 3% vehicle accident, and 2% society or
cooperative association disputes. Curious is also that 34% of claims involved an Indigenous part (Civil
Resolution Tribunal (n 128)).
[131] See F Gascón Inchausti
in Part IX of this publication.
A clear explanation of this courts is given by C Shi, T Sourdin and B Li,
‘The smart court – A new pathway to justice in China?’ (2021) 12 International Journal
for court Administration, 1 (available online). He refers to the impression that the Chinese Online
courts caused in R Susskind when he visited them: ‘I was impressed with what I saw: a static robot
in the reception area that offered online legal help for court users; on-site facilities for the
e-filing of documents; dedicated virtual courtrooms; speaker-independent voice recognition (they no
longer need stenographers); and a demonstration of China’s first “internet-court”,
which resolves internet-related disputes concerning, for example, online loans, e-commerce (contractual
and product liability issues), domain name disputes, and online copyright issues. With 800 million users
in China, the volume of related disputes has called for new methods. I am told that the court in
Hangzhou has now handled more than 10,000 disputes, in roughly half of the time of traditional
hearings’.
[133] In the same direction, A
Storgaard (n 41) 15, and R Sanderfur (n 75) xvi.
