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New practical guide on access to justice in European law

June 22nd 2016

On 22 June 2016, the European Union Agency for Fundamental Rights (FRA) and the European Court of Human Rights launch a practical handbook on European law relating to access to justice.

“Access to justice is not just a right in itself. It is also a key enabler for making other fundamental rights a reality,” says FRA Director Michael O’Flaherty. “This practical guide provides legal practitioners with a key legal resource to help them actively support all those who face barriers in fully and effectively enjoying access to justice.”

“This handbook summarises key access to justice principles, drawing on a wide body of European law and jurisprudence,” says President of the European Court of Human Rights Guido Raimondi. “Providing easy-to-use information on the main standards in Europe will greatly assist legal practitioners ensure everyone seeking justice has proper support, a fair trial and access to effective remedies.”

The Handbook on European law relating to access to justice is a comprehensive guide to European law in this area. It seeks to raise awareness and improve knowledge of relevant standards set by the European Union and the Council of Europe, particularly through the case law of the Court of Justice of the EU and the European Court of Human Rights.

This handbook is designed to assist judges, prosecutors and legal practitioners involved in litigation in EU and Council of Europe Member States with legal issues relating to access to justice. Non-governmental organisations and other bodies that assist individuals in accessing justice will also find it useful.

The publication focuses principally on civil and criminal law. It covers such issues as a fair and public hearing before an independent and impartial tribunal; legal aid; the right to be advised, defended and represented; the right to an effective remedy; length of proceedings; and other limitations on access to justice. It also examines access to justice in selected areas: victims of crime; people with disabilities; prisoners and pre-trial detainees; environmental law; and e-justice.

The handbook is available on the FRA website in English and French. Other language versions will follow.

Chapter 2: A fair and public hearing before an independent and impartial tribunal and other bodies

2.4 Other paths to justice

Key points

  • Access to justice mechanisms may include non-judicial bodies, such as national human rights institutions, equality bodies, data protection authorities or ombudsperson institutions.
  • Administrative, non-judicial bodies may advance access to justice by providing quicker ways of obtaining remedies or by allowing collective redress. However, they must not override an individual’s right of access to a court and should generally be subject to judicial supervision.
  • Alternative dispute resolution (ADR) procedures, such as mediation and arbitration, provide alternatives to accessing justice via formal judicial routes.
  • If the law compels parties to go to arbitration, the arbitration tribunal must comply with Article 6 of the ECHR and Article 47 of the EU Charter of Fundamental Rights.
  • The EU has encouraged the use of ADR with legislation such as the EU Mediation Directive and a variety of consumer protection initiatives.

2.4.1. Non-judicial bodies

Many judicial systems face increasing workloads and access to courts can be expensive. A broader view of access to justice encompasses non-judicial bodies as well as courts. This may include equality bodies, administrative and non-judicial institutions that deal with cases of discrimination, national human rights institutions (NHRIs), ombudsperson institutions, data protection authorities, labour inspectorates and specialised tribunals. EU Member States established some of these bodies pursuant to specific EU legislative requirements – for example, equality bodies on racial or ethnic equality and gender equality were set up under the Racial Equality Directive, and national data protection authorities under the Data Protection Directive.

Quasi-judicial procedures brought before non-judicial bodies – often in a form of mediation (see Section 2.4.2 on alternative dispute resolution) – may provide faster, less formalistic and cheaper alternatives for claimants. However, the majority of non-judicial bodies do not have the power to issue binding decisions (exceptions include, for example, data protection authorities and some equality bodies), and their powers of compensation are generally limited.

The ECtHR has stated that a non-judicial body under domestic law may be considered to be a court if it quite clearly performs judicial functions and offers the procedural guarantees required by Article 6 of the ECHR, such as impartiality and independence (see Section 2.1.2). If it does not, the non-judicial body must be subject to supervision by a judicial body that has full jurisdiction and complies with the requirements of Article 6.

Administrative, non-judicial bodies may also advance access to justice by allowing collective redress or complaints. This permits complainants to join forces so that many individual claims relating to the same case can be combined into a single court action.149 This may allow organisations, such as NGOs, to file complaints on behalf of individuals.

Promising Practice - Italy  (Click to enlarge picture)