Download Mediation and Fundamental Right of Access to Justice

Mediation and Fundamental Right
of
Access to Justice
Francesco Pesce, University of Genoa
Mediation and Fundamental Right of Access to Justice
• The concept of “access to justice”
→ There is not any standardised concept of “access to justice”
→ We generally make reference to Art. 6 and 13 ECHR (European Charter of
Human Rights) and to Art. 47 CFR (Charter of Fundamental Rights of the European Union)
Mediation and Fundamental Right of Access to Justice
• Art. 6 ECHR (right to a fair trail)
• 1. 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. Judgment shall be pronounced publicly but the press and public may be excluded from
all or part of the trial in the interest of morals, public order or national security in a democratic society,
where the interests of juveniles or the protection of the private life of the parties so require, or the extent
strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the
interests of justice.
• 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
• 3. Everyone charged with a criminal offence has the following minimum rights:
•
(…)
Mediation and Fundamental Right of Access to Justice
• Art. 13 ECHR (right to an effective remedy)
Everyone whose rights and freedoms as set forth in this Convention are
violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons
acting in an official capacity.
Mediation and Fundamental Right of Access to Justice
•Art. 47 of EU CFR
Right to an effective remedy and to a fair trial
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.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent and
impartial tribunal previously established by law. Everyone shall have the possibility of being
advised, defended and represented.
Legal aid shall be made available to those who lack sufficient resources in so far as such aid is
necessary to ensure effective access to justice.
Mediation and Fundamental Right of Access to Justice
• TFEU (Treaty on the Functioning of the European Union),
Art. 67(4)
«The Union shall facilitate access to justice, in particular
through the principle of mutual recognition of judicial and
extrajudicial decisions in civil matters»
(please notice the cross-border dimension of the principle)
Mediation and Fundamental Right of Access to Justice
… so we can determine the following elements of access to justice
1.
2.
3.
4.
5.
Right to effective access to a dispute resolution body
Right to a fair proceeding
Right to timely resolution of dispute
Right to an adequate redress
Principles of efficiency and effectiveness
Mediation and Fundamental Right of Access to Justice
•EU level
• → Within EU law, access to justice equally covers
– access to EU Court (EU Court of Justice)
– access to national courts and tribunals in order to enforce the
rights derived from EU law
Mediation and Fundamental Right of Access to Justice
• EU level (follows)
→ Many EU legislative instruments are aimed at giving effects to the
right of access to justice:
1. “Free Movement Directive” 2004/38
2. “Racial [ethnic origin] Equality Directive” 2000/43
3. Mediation directive (2008/52)
4. Legal aid directive 2003/8 (cross-border disputes, but same
incentive to adequate internal legislation as the previous one)
Mediation and Fundamental Right of Access to Justice
•National level
Possible restrictions to access to justice in EU Member States:
Mediation and Fundamental Right of Access to Justice
• National level (follows)
According to ECtHR jurisprudence, restrictions are acceptable to the
extent
1. they are proportionate to achieve a lawful aim
2. so long as they do not restrict or reduce the access left to the individual in
such a way that the very essence of the right is impaired.
Mediation and Fundamental Right of Access to Justice
• National level (follows)
•
Example: here you can find the situation of ECHR (Art. 6) violations
concerning lenght of proceedings
Mediation and Fundamental Right of Access to Justice
• GOOD PRACTICES
which could facilitate access to justice
1.
2.
3.
4.
5.
Simplified and less formalistic procedural rules (→ mediation)
E-justice initiatives
Generous rules on legal standing
Availability of redress other than compensation
Pro bono initiatives
Thanks !