and the right to equality before the courts is recognised by Article 10 UDHR as
well as Article 14(1) ICCPR and Article 12 of the Arab Charter.
28. The crucial aspect of the right to a fair trial is that it is not simply a matter for the
State to respect the right to a fair trial. Governments must also put into place a
legal and institutional framework to protect it. As such the right to a fair trial
requires the State to provide, amongst other things:
Availability of legal assistance, including legal aid;
A prosecution service; and
A trained and independent judiciary.
29. Furthermore, as the Special Rapporteur on the Independence of Judges and
Lawyers has reiterated, ‘access to justice should be unrestricted and
effective’.546 This includes:
There should be no discrimination and coercion;
Conditions should favour the admissibility of the action;
The necessary legal assistance should be provided;
Remedies should be genuinely able to achieve the desired objective. 547
30. Systematic attempts to prevent individuals accessing courts or tribunals will
violate this right.548
31. The right of equal access does not necessarily apply to the right to appeal, and
is focused on procedures at the first instance.549
32. This right of access is available to ‘all individuals, regardless of nationality or
statelessness, or whatever their status, whether asylum seekers, refugees,
migrant workers, unaccompanied children or other persons, who may find
themselves in the territory or subject to the jurisdiction’.550
33. Access to court is not an absolute right; restrictions are permitted but only in so
far as they have are prescribed by law, pursue a legitimate aim on objective
and reasonable grounds, and are proportionate, and if such a restriction would
undermine the essence of the right itself.551 Reasonable limitation periods and
time limits can be lawful,552 as are reasonable fees if appropriate for the
administration of justice.553
546
Report of Special Rapporteur on the Independence of Judges and Lawyers, A/HRC/8/4, 13th May
2008, para 20.
547
Ibid.
548
Human Rights Committee, Communication No.468/1991, Oló Bahamonde v Equatorial Guinea, 20
October 1993, para 9.4.
549
Human Rights Committee General Comment No.32, CCPR/C/GC/32 (2007), para 12.
550
Ibid, para 9.
551
Ibid, paras 9 and 18.
552
Stubbings v UK, European Court, 22 October 1996
553
Human Rights Committee Communication 1514/2006, Casanovas v France, 28 October 2008, para
113.
103
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