Access to Justice as a Human Right by Francioni Francesco

Author:Francioni, Francesco
Language: eng
Format: epub
Publisher: OUP Oxford
Published: 2013-01-22T16:00:00+00:00

V. AVAILABILITY OF LEGAL AID

In its final judgments establishing a violation of the ECHR, the European Court of Human Rights orders the respondent state to pay, besides just satisfaction for the human rights violation, also legal costs. It also has a scheme for legal aid from Council of Europe sources in pending cases. Both arrangements are important for effective access to justice on the international level. Nevertheless, they come into play only in a small minority of all registered applications. Legal costs are ordered only where a violation of the ECHR is established and even legal aid is available only after an application has been either communicated to the government or declared admissible, ie only after certain important steps of screening incoming applications.56

One of the most evident shortcomings of the complaint procedures before the HRC, and of the United Nations human rights system in general, is that there is no arrangement for legal aid to applicants that submit cases to the HRC or the other treaty bodies. As there are not even plans for introducing a legal aid scheme within the United Nations, the most viable option for improving the situation appears to be the creation of some sort of a coalition by NGOs that would provide legal aid for victims of human rights violations who want to take a case before a United Nations human rights treaty body. So far, many NGOs have provided legal assistance on an ad hoc basis or when using individual test cases as a part of their litigation strategy. However, they have not pooled together their resources in order to form a legal assistance scheme to which individuals could turn on their own initiative.

As to awarding legal costs, the HRC has, in some of its fairly recent Views establishing a violation, made a move towards ordering the state party in question to pay for the legal costs of the applicant. The first case in that category was Laptsevich v Belarus, decided in 2000, where the HRC expressed the remedy called for as follows: ‘Under article 2, paragraph 3(a), of the Covenant, the State party is under an obligation to provide Mr. Laptsevich with an effective remedy, including compensation amounting to a sum not less than the present value of the fine and any legal costs paid by the author. The State party is also under an obligation to take measures to prevent similar violations in the future.’57

To date, this ‘Laptsevich formula’ has not become a standard element in those HRC Views that establish a violation of the ICCPR. Rather, the HRC requests only on a discretionary basis the respondent state to compensate the legal costs of the victim of a human rights violation. From the perspective of effective access to justice this is to be regretted.

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