On November 5, U.N. Special Rapporteur on extreme poverty and human rights, Magdalena Sepúlveda Carmona, presented her annual report to the U.N. General Assembly. The Special Rapporteur highlights the obstacles faced by individuals living in extreme poverty when they attempt to access courts and other remedies. Linking access to justice to numerous other human rights, her report concludes that States have an obligation to ensure impoverished individuals have full and effective access to justice systems, and provides recommendations to States on how to remove existing barriers.
Access to justice and the protection of human rights
Access to justice and poverty are intrinsically linked. The Special Rapporteur reports that individuals living in poverty “are more likely to fall victim to criminal or illegal acts including sexual or economic exploitation, violence, torture and murder” thus making them key beneficiaries of fair and accessible justice systems. However this increased need often results in a “vicious circle” where “the inability of the poor to pursue justice remedies through existing systems increases their vulnerability to poverty and violations of their rights,” which then “further hampers their ability to use justice systems” and “impairs the enjoyment of several human rights.“
In particular, the Special Rapporteur highlights the rights impaired by inaccessible and unfair justice systems include the right to an effective remedy (art. 2.3 of the International Covenant on Civil and Political Rights (ICCPR)); the rights to legal assistance, equality before the courts and tribunals, and a fair trial (ICCPR, arts. 14-15); and the right to equality and equal protection of the law (ICCPR, art. 26). Access to justice also implicates the right to enjoy rights without discrimination (ICCPR, art. 2), the right to recognition as a person before the law (ICCPR, art. 16), and the right to seek and receive information (ICCPR, art. 19.2). Drawing on these rights, the report emphasizes that “persons living in poverty have a right to access justice without discrimination of any kind, and a right to due process, understood as the right to be treated fairly, efficiently and effectively throughout the justice chain.”
Obstacles hindering impoverished individuals’ access to justice
While these essential rights are guaranteed in international human rights instruments, in practice individuals living in poverty face numerous obstacles when accessing national justice systems. These obstacles are not confined to developing countries; as the report notes that even “mature democracies with well-functioning State institutions and technically inclusive and fair legal systems struggle to ensure de facto equal access to justice by those living in poverty.”
The Special Rapporteur provides a comprehensive analysis of some of the key obstacles that individuals living in poverty face and divides the obstacles into social and cultural barriers, legal and normative barriers, institutional and structural obstacles in the justice chain, and structural problems of judicial processes. Within each category, the report looks at not only the legal and institutional practices that bar individuals from obtaining judicial protection, it also examines the societal factors that influence such laws and practices.
Special Rapporteur Carmona gives special attention to issues faced by women, children, the elderly, minority groups, and persons with limited mobility living in poverty as groups that are especially vulnerable to having their rights violated. For example, the report notes that in some societies, traditional cultural norms may prevent women from speaking on their own behalf in disputes or even initiating claims in the first place. In addition to cultural norms, discrimination and stigma surrounding sexual violence precludes many women from asserting their rights. Sexual violence complaints, particularly rape complaints, often go unregistered at police precincts, preventing women from bringing their attackers to justice.
For minority groups, judicial proceedings only conducted the predominant language inherently prevents individuals who only speak an indigenous language or alternate dialect from participating in judicial proceedings. Linguistic minorities are also often poorer communities that may lack access to education. Even where an individual speaks the language used in court proceedings, the use of technical and legal jargon can prevent ordinary individuals from understanding the requirements for successfully bringing a claim.
Even programs designed to help impoverished individuals may not provide sufficient protection due to a lack of understanding of the challenges such individuals face. Legal assistance, in the form of free legal aid, is often restricted to criminal cases despite the fact that civil matters including eviction and immigration proceedings have a profound effect on the rights of impoverished individuals. Eligibility for legal assistance is often determined based on “means-testing” which the Special Rapporteur cautioned is often inaccurate and fails to take into account issues such as the restricted access of some members of the family – particularly women and the elderly – to household wealth in some societies.
Physical access to legal systems and the system’s capacity to efficiently handle cases also can prevent many individuals from bringing claims or seeing their claims to completion. Inadequate staffing of courts and police stations – an issue present in developing countries – causes delays in investigations and the adjudication of cases. Individuals with limited resources may not be able to see cases through to completion especially when these delays involve courtrooms and police precincts located far away from where individuals live and work. These institutions also may be inaccessible to individuals with limited mobility.
Moreover the Special Rapporteur does not focus merely on formal legal systems; she also covers informal legal systems including local councils that apply customary law. Ensuring that these informal systems remain fair and open to all is especially important as research has shown that individuals in poorer communities are more likely to rely on them. These informal systems present their own set of issues, as some may simply reinforce existing power imbalances or favor the interests of the community over the interests of the individuals bringing a claim. Further, the traditional cultural norms for these systems may preclude women and minority groups from obtaining a fair adjudication of their claims or access to the system at all.
Improving access to justice
The report concludes with a series of recommendations addressing each barrier to access to justice. These recommendations range from the broad – “take positive measures to raise the capacity of poor and disadvantaged groups to ensure that they have full understanding of their rights and the means through which they can enforce them” – to the more specific – “ensure access to free and competent civil legal assistance for persons living in poverty where the enjoyment of human rights — civil, political, economic, social and/or cultural — is at stake.” Each recommendation reflects the imperative for States to fulfill their obligations by providing effective remedies for individuals living in poverty because access to justice is “crucial for tackling the root causes of poverty, exclusion and vulnerability.”