34. Individuals are free to waive their rights of access to court by agreeing to
arbitration. However, such agreements must be genuinely voluntary and must
be subjected to careful review to ensure the applicant was not subject to
constraint.554 They should also not prevent the right to access to a court. 555
35. If individuals cannot access the court or tribunal because of their race, colour,
sex, language, religion, political or other opinion, national or social origin,
property, birth or other status, not only will the right of access be violated,556 it
is also likely this will violate provisions on non-discrimination and equality.557
36. Similar cases must be dealt with in similar ways, unless it is possible to justify
on objective and reasonable grounds, different procedures for particular
cases.558
37. The right of equal access to the courts applies both to the prosecution and
defence.559
38. The right must also be practically viable: ‘a system in which an individual’s
attempts to access the competent courts or tribunals are systematically
frustrated…de facto runs counter to the guarantee of Article 14 of the
ICCPR’.560 Therefore:
If there is insufficient information about the location and time of the
hearing, this may violate the right of access.
The layout of a building in which the court is housed needs to be
considered if this impacts on the rights of persons with disabilities or
older people.561
Legal assistance may be required to ensure access562 and imposition of
fees or a uniform costs award563 have also been held by the Human
Rights Committee to prevent access to justice.564
Requiring individuals to travel, for example, to a different location, to
appeal a decision may be considered unreasonable and in violation of
this right.565
554
Deweer v Belgium, European Court, 27 February 1980
Report of the Special Rapporteur on the independence of Judges and Lawyers, A/HRC/8/4, para 35.
556
Human Rights Committee, General Comment No.32, CCPR/C/GC/32 (2007), para 9; General
Comment No.18 HRI/GEN/1/Rev.6 at 146 (2003), para 7.
557
See e.g. Human Rights Committee, Communication 202/1986, Ato del Avellanal v Peru, 20 October
1988, para 10.2.
558
Human Rights Committee General Comment No.32, CCPR/C/GC/32 (2007), para 14.
559
Human Rights Committee, Communication 1086/2002, Weiss v Austria, 3 April 2003, para 9.6.
560
Human Rights Committee General Comment No.32, CCPR/C/GC/32 (2007), para 9; Communication
468/1991, Oló Bahamonde v Equatorial Guinea, 20 October 1993, para 9.4.
561
Report of the Special Rapporteur on the Independence of Judges and Lawyers, A/HRC/8/4, para 32.
562
Human Rights Committee General Comment No.32, CCPR/C/GC/32 (2007), para 10.
563
Human Rights Committee Communication 779/1997, Aarela and Nakkalajarvi v Finland, 24 October
2001, para 7.2.
564
Human Rights Committee Communication 646/1995, Lindon v Australia, 25 November 1998, para
6.4.
565
Report of the Special Rapporteur on the Independence of Judges and Lawyers, A/HRC/8/4, para 31.
See also ECHR, Perez de Rada Cavanilles, 116/1997/900/1112, 1998.
555
104
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents