And justice for all? Ensuring justiciable human rights in times of economic crisis

[Το πιο κάτω κείμενο είναι η ομιλία μου εκ μέρους της κυπριακής προεδρίας στον 4ο ετήσιο διάλογο του Οργανισμού Θεμελιωδών Δικαιωμάτων με την Επιτροπή των Περιφερειών]

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Allow me to start by thanking the CoR president, Mr Valcárcel Siso and the former CIVEX president, Mr Van den Brandem, as well as the newly elected CIVEX President Mr. Costa for their kind invitation to give one of the keynote speeches to this event. It is indeed a great pleasure and honor to address this topical issue in the framework of the “4^th Annual Dialogue on Multi-level Protection and promotion of fundamental rights”. I hope that the presentations and the discussion we will have here today, will serve as a springboard for the further development and shaping of our ideas and perceptions on the issue of access to justice in times of economic crisis. I look forward to listening to and engaging with all participants in today’s panel.

1.   The importance of the topic – general thoughts

So, let’s start with the question that appears on our agenda: “Economic crisis-obstacle or incubator for innovation in access to justice?”. There are a number of underlying questions and assumptions to this and any attempt to charter and respond to all of them would go beyond the purpose of this speech. But let’s take time to reflect on some of them that may appear to have self-evident answers:

-       Why is this access to justice important at all?

-       Where did the economic crisis come from?

-       Where do we currently find ourselves, what do we want to do and how do we prioritize our actions?

Joseph Stiglitz, a winner of the Nobel Prize in economics, writes in his book “The price of inequality” that:

“We have created a system in which there’s an arms race, and those with the deepest pockets are in the best position to fight and to win and calls for a serious legal reform that will democratize access to justice.” [1]

I think that Stiglitz’s suggestion points to the root causes of inequality and suggests that there is a broader framework in which discussions of the sort we are having here today must take place. This leads me to the following point: in an ironic turn of history Europe is again confronted with a serious recession and with problems that were usually related to issues connected with world poverty. As prof. Chris Pissarides, another Nobel prize winner, has noted: “The problem with a recession is that it punishes a relatively small number of people and it punishes them a great deal. The unemployed, new school leavers and ethnic minorities bear the brunt of it. The cost of recession to them is not only lower income, but loss of self-esteem, loss of skill and damaged future career paths.”[2]

On this very point, we should not forget that the current economic crisis is not incidental, nor a one-off event destined to be eventually somehow overcome. To the contrary, it is the very by-product of the economic model that our societies have endorsed. In the words of Margot Salomon, an academic at LSE:

“[i]t is also the very design of the economic order, which contributes  to the perpetuation of world poverty, or, at a minimum, has failed to relieve poverty”.

Salomon also goes on to observe that:

“establishing causal relationships between harms experienced elsewhere in the world, and the actions of states acting internationally, can be extremely complex”.[3]

We are also faced today with a similar problem and with a daunting task of reflecting on how access to justice can be maintained for everybody in times of strained budgets, especially with those who are in greater need and more vulnerable: the unemployed, members of minority or immigrant groups, the indigent, single-parent families, people with disabilities etc.

And here lay two of the underlying assumptions I referred to in my introduction:

-       the first, that the standard of access to justice enjoyed hitherto has been adequate and responsive to the needs of the European citizens and

-       the second, that the architecture of any system of justice can be disconnected or dissociated from the very foundations of the political order and the economic realities of a given State.

With regard to this last observation, Salomon asserts that:

“This myth that the international economic order represents an objective state of affairs, an inevitable model, has underpinned the project of economic liberalization”.[4]

Salomon is correct in pointing out that much of our understanding and views on how our societies and their institutions work are premised on the false perception that the current state of economic and political affairs is the sole model that is workable. But I would suggest that her view can be extrapolated to the operation of our judicial systems as well: their current formations and functions cannot be taken to represent an inevitable model and that they are open to the influence of the economic situation of a State and governments’ budget priorities. Put simply and in the words of a great historian of our times: “You can’t be neutral on a moving train”.[5]

But what does the excellent 2011 study by the FRA on “Access to justice in Europe” tells us? The findings of that report show that:

“At national level, the report points out concerns and concrete obstacles to accessing justice but also highlights actual practices. Some of the key concerns include unnecessarily strict time limits on bringing claims. This is, for instance, the case in 22 of the 27 EU Member States. Other notable difficulties include restrictive rules in who can make a claim, excessive legal costs, and the complexity of legal procedures”.

These are areas that are disconnected from the particular attributes of the current economic crisis and suggest that the justice systems of our countries are in deep need for reform, even without having to consider the exacerbations caused by the economic crisis.

Access to justice is fundamental not just because the Universal Declaration, the International Covenant on Civil and Political Rights and the Charter of Fundamental Rights so prescribe, but predominantly because it is a sine qua non component of the core European values that we espouse and defines part of our identity and our legal civilization. Justice, the rule of law, equality before the law, lack of arbitrariness, fairness, equity and many other notions can be attached to the basic claim for access to justice. They are also central to the self-perception of the EU and to the understanding of Europe’s position in the world, as attested by the human rights policies and conditionality that underpins the external action of the EU.

An additional reason why access to justice holds a prominent place in this discussion is because it can be dovetailed to the dignity of every individual finding himself or herself within the jurisdictional ambit of our countries. Access to justice relates essentially to the vindication of rights, pursuing one’s rightful entitlements and advancing claims before competent bodies. In a way this is related, or even tantamount to, the recognition of a person before the law, a right that is currently enshrined only in the Inter-American Convention on Human Rights. If access to justice is curtailed, or even worse rendered impracticable, theoretical and illusory, then citizens, as subjects of rights, are marginalized and with no real prospect to seek justice thus forfeiting a significant empowerment.

Seen from this perspective, access to justice is equally fundamental to upholding equality and is inevitably linked not only with securing the same rights for all, but also for ensuring an equal footing in the procedural aspect. Accessing a court or another competent body should be simple and low-cost and should furthermore ensure a reasonable in terms of time consideration of a case brought before it, a fair and equal use of arms in order to guarantee a fair and legitimate result. Thus greater emphasis must also be placed on the procedural side of access to justice.

And going back to the initial question: why is this important? First and foremost, because economic inequality results in inequality in power; it puts in peril the very foundations of our democracies; and it threatens the basic precepts of our system of laws. A system of justice that allows neutrality to be a vehicle for favoring those who may afford it, is a system of justice that urgently needs reform.

Secondly, access to justice has the privilege of standing at the intersection of the often misleadingly labeled as first and second-generation human rights. Access to justice cannot be solely understood, interpreted and implemented in abstract terms and through setting complex procedural laws. To the contrary, access to justice is also the medium for transforming a mere claim to concrete reality and to reconfiguration of the legal status and relations of an individual.

The main point to be made for this part of my speech is that the inequality in the enjoyment of access to justice has a price both at the collective and the individual level. Are we ready to pay this price and concede core elements of the progress we have made in this are for the past six decades or so?

2.   Where we stand

Moving beyond this theoretical framework, it is useful to consider where we currently stand. As already mentioned before, the FRA report identifies key issues and areas of concern and does a particularly good job in providing us with a full and clear picture of the legal situation. For this reason I will refrain from reiterating here the basic provisions found in the ECHR, the ICCPR and the Charter of Fundamental Rights. The report also focuses on the topics of legal aid and redress at the national level and reaches interesting conclusions. Some of the most salient problematic areas refer to time limits for bringing a case before a competent body; legal standing; length of proceedings; legal costs and the right to remedy.

My reading of the FRA report is that any future initiative in the area of access to justice must be shaped by and aim at three different, yet intertwined features, namely: legitimacy, effectiveness, realism. Devising or reforming access to justice must be delivered in such a way as to ensure that right-holders and duty-bearers accept its fundamental modes of operation and are confident that their cases will be heard with impartiality and judged pursuant to predetermined rules within reasonable time. Vesting the justice system with the acceptance of citizens will undoubtedly contribute to founding its legitimacy in their minds.

At the same time, such a system will inescapably be assessed on the merits of its effectiveness, measured by the quality and practicality of its procedures and outcomes.  And lastly, the aforementioned cannot be disconnected from the existing realities of our societies, in the sense that they must be responsive and meaningfully applicable in our countries. Preaching from the ivory tower will help no one.

3.   Where do we go from here? - Ideas

Having explored the theoretical premises and the political provenance and significance of access to justice, we now need to consider how to enrich our arsenal of ideas on how we can make the economic crisis an incubator for innovation in access to justice.

The first thing that needs to be said here is that more research is needed. The FRA study is an excellent piece of study and an appropriate starting point, but the fact remains that additional research both at the national and EU level is needed. Such a research should be aimed at identifying the particular problems in each judicial system, the groups that are most in need and the character of their needs. These are issues that are more often than not informed by the specific social realities prevailing in each country. Targeted solutions require tailor-made research.

Secondly, and this is where policy makers kick in, a fully-fledged access to justice strategy is needed. It appears that national and regional systems seem to have stumbled upon the sheer number of cases pending before them, but efforts for reform have yet to prove successful. Enhanced cooperation is needed between the policy makers in Brussels and people working in Ministries of Justice in order to step up their efforts to pool together their resources and identify solutions at national and European level.

Third, the legal industry should also do its part in the framework of its own corporate responsibility. Law offices should further the areas of pro bono litigation, while States should facilitate them by providing adequate incentives, e.g. tax exemptions, procedural privileges etc. This should also be linked to the issue of professional ethics for lawyers. Furthermore, I feel that there is still work to be done in the field of legal education in order to prepare educated and, more essentially, responsible jurists.

There is also room for improvement with regard to the courts themselves. Judges should be made more aware of the corpus juris of the case-law of both the Luxembourg and the Strasbourg courts. My opinion is that our judicial systems would also benefit form highly qualified and specialized judges in the fields of EU law and human rights. Ensuring quality judgments by national courts can only strengthen the legitimacy and efficiency of a legal system.[6] And further to this point, developing solutions through borrowing ideas from other systems may prove fruitful. Why not then consider the introduction of class actions, the pilot judgment procedure and the independent and unqualified standing of NGOs before national courts in the same or similar way that these operate within other jurisdictions?

The FRA report underscores the procedural barriers facing NGOs[7] and prompts us to consider the modalities for providing full legal standing to National Human Rights Institutions and independent authorities (equality bodies, ombudsmen etc). Some countries have created additional bodies such as ombudsmen for citizens, consumers, data protection, children etc that seek to address and resolve area- or theme- specific disputes. These efforts should be coupled with decentralizing executive competences and making decision-making process more inclusive and bringing it closer to citizens and by consequence affording direct and easy access to justice mechanisms, for aggrieved claimants.

At the everyday life, citizens should have easy access to legislation, operational guides and forms of frequently asked questions in order to be in a position to steer through the sheer volume and complexity of rules and procedures that may be in place. Having a “one-stop platform” for these purposes would significantly benefit many of our fellow citizens.

The area of alternative non-judicial mechanisms for dispute resolution seems to be gaining currency at the EU level and in some national contexts. Abandoning the formalism that usually accompanies court procedures and allowing for swift settlement of disputes through easily understandable and pre-determined procedures can only work to the benefit of every stakeholder.

And finally, what about expanding the traditional right to a counsel found in the criminal law area to a civil right to a counsel? The idea has been advocated by both civil society organizations and academics[8] and may seem to be at odds with strained economic resources. But this may not accurately reflect reality and the potential of introducing such a right. Again, focused research on this issue should be made.

Concluding

I hope that I have not used more time than originally planned – I would like to conclude in this way: Martin Luther King once famously wrote in a letter from Birmingham jail that: “Injustice anywhere is a threat to justice everywhere”. I believe that his words have not lost their thrust, even if they date back to 1963. We are still in this perpetuate quest for ensuring effective access to justice for all and I hope that the event we are all participating in today will make a meaningful contribution towards this direction. Thank you very much for your attention.

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[1] 273.

[2] New Statesman, 18 October 2011.

[3] 9

[4] Margot Salomon, «Poverty, Privilege and International Law: the Millenium Development Goals and the guise of humanitarianism”, 51.

[5] Howard Zinn.

[6] Kobler

[7] Pg 40

[8] Russell Engler, “Pursuing Access to Justice and Civil Right to Counsel in a Time of Economic Crisis”, Roger Williams University Law Review, Vol. 15, 472 (2010); Clare Pastore, “A civil right to counsel: closer to reality”, Loyola of Los Angeles Law Review, vol. 42, 1065 (2009).