Access to justice in the Convention on Rights system

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Gerards, J.H. ; Glas, L.R. (2017)

The numerous reforms to the Convention system of the past two decades have unquestionably had an effect on applicants’ means to access justice in the system. It is, however, open to question how these changes should be evaluated: with reference to the individual right to petition, or with reference to a more substantive and general conception of access to justice. This article explores these two approaches to the notion of access to justice both generally and for the Convention system specifically. The main argument of the article is to show the value of taking a substantive approach to access to justice in the Convention system. Thus, it challenges the centrality of the individual right to petition in discussions on reform of the system. Further, to show how taking a different perspective on access to justice may lead to different analyses, an evaluation in the light of both approaches is made of five sets of central changes to the Court’s procedure and its working method. This includes the revised Rule 47, single-judge formations and the priority policy.
  • References (145)
    145 references, page 1 of 15

    1. Lize Glas, 'Changes in the Procedural Practice of the European Court of Human Rights: Consequences for the Convention System and Lessons to be Drawn' (2014) 14 HRL Rev 671; Nikos Vogiatzis, 'The Admissibility Criterion under Article 35(3)(b) ECHR: A 'Significant Disadvantage' to Human Rights Protection?' (2016) 65 ICLQ 185. For a review see CDDH Report on the Longer-term Future of the System of the [Convention], CDDH(2015)R84 Addendum I, 11 December 2015.

    2. eg Reflection Group on the Protection of the Reinforcement of the Human Rights Protection Mechanism, 'Activity Report', CDDH-GDR (2001)010, 15 June 2001; Position Paper of the Court on proposals for reform of the [Convention] and other measures as set out in the report of the [CDDH] of 4 April 2003, CDDH(2003)006 final and CDDHGDR(2003)024, 26 September 2003, para 31; NGO Response to Proposals to Ensure the Future Effectiveness of the [Court], 28 May 2003; Joint NGO statement, 'Protocol 15 to the [Convention] must not result in a weakening of human rights protection', 25 June 2013. See further eg Philip Leach, 'Access to the European Court of Human Rights - From a Legal Entitlement to a Lottery?' (2006) 27 HRLJ 11; Vogiatzis (n 1) 187.

    3. European Law Institute, 'Statement on Case-Overload at the European Court of Human Rights', 6 July 2012, 20-21. See also n 61.

    4. FRA, Access to Justice in Europe: An Overview of Challenges and Opportunities (Imprimerie Centrale 2010) 14.

    5. Eilionoir Flynn, Disabled Justice?: Access to Justice and the UN Convention on the Rights of Persons with Disabilities (Routledge 2015) 21. The 2006 Convention on the Rights of Persons with Disabilities changed the UN situation (see art 13).

    6. Mauro Cappelletti and Bryant Garth, 'Access to Justice: The Newest Wave in the Worldwide Movement to Make Rights Effective' (1987) 27(2) Buff L Rev 181.

    7. Jeremy McBride, 'Access to Justice for Migrants and Asylum-seekers in Europe', CDCJ (2009) 2, para 6. See also Patricia Hughes, 'Law Commissions and Access to Justice: What Justice Should We be Talking About?' (2009) 46 OHLJ 773, 778.

    8. This term, as well as 'substantive access to justice', is used in David A Larson, 'Access to Justice' in Encyclopaedia of Law and Economics (8 October 2015) 1-2.

    9. McBride (n 7) para 6.

    10. ibid.

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