42
Legal Digest of International Fair Trial Rights
The right of access to courts and tribunals is not limited to citizens of the country in which
a court or tribunal operates. The right of access must be 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”.130 In the case of expulsion proceedings (See
also 1.3), it should be noted that a different set of procedural guarantees are applicable –
under Article 13 of the ICCPR and Article 1 of Protocol 7 to the ECHR.
Access to justice issues may also be relevant for victims of crimes, including victims of hate
crimes (See also 7.2).
2.1.2 Legal restrictions to the right of access to courts and tribunals
The right of access to the courts ensures that no individual is deprived of her/his right to
claim justice.131 However, this right is not absolute and may be subject to legitimate restrictions such as statutory limitation periods, security for costs orders, regulations concerning minors, persons of unsound mind, bankrupts and vexatious litigants, parliamentary
immunity and the immunity of an international organization.132
The Human Rights Committee clarifies that any restrictions regarding access rights must
be based on law and justified on objective and reasonable grounds.133 A violation of Article
14 of the ICCPR may be found if such limitations:134
• are not prescribed by law; or
• are not necessary to pursue legitimate aims, such as the proper administration of justice, or are based on exceptions from jurisdiction deriving from international law, such,
for example, as immunities; or
• if the access left to an individual would be limited to an extent that would undermine
the very essence of the right.
The European Court of Human Rights applies the same test for the limitation of qualified
rights and also applies a margin of appreciation when considering how the regulation of
130 UN Human Rights Committee, CCPR General Comment 32 (2007), para 9.
131 UN Human Rights Committee, CCPR General Comment 32 (2007), para 9; Golder v the United Kingdom
[1975] ECHR 1, paras 34–36.
132 Stubbings and Others v the United Kingdom [1996] ECHR 44, para 62; Z and Others v the United
Kingdom [2001] ECHR 333, para 93; and Nuala Mole and Catharina Harby, The right to a fair trial
(Strasbourg: Council of Europe, 2nd Ed, 2006), p.36; Tolstoy Miloslavsky v the United Kingdom [1995]
ECHR 25, para 61; Al-Adsani v the United Kingdom [2001] ECHR 761, para 56; McElhinney v Ireland
[2001] ECHR 763, para 35; Cordova v Italy [2003] ECHR 47, para 60; Beer and Regan v Germany [1999]
ECHR 6, para 53.
133 UN Human Rights Committee, CCPR General Comment 32 (2007), para 9.
134 UN Human Rights Committee, CCPR General Comment 32 (2007), para 18.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents