Denial of access to justice

The right of access to courts is fundamental and uncontroversial; its refusal the most obvious form of
denial of justice. Legal rights would be illusory if there were no entitlement to a procedural
mechanism to give them effect. The notion of free access to courts was given the following
elucidation in the Ambatielos arbitration the foreigner shall enjoy full freedom to appear before the
courts for the protection or defence of his rights, whether as plaintiff or defendant to bring any
action provided or authorised by law; to deliver any pleading by way of defence, set off or
counterclaim; to engage Counsel to adduce evidence, whether documentary or oral or of any other
kind; to apply for bail; to lodge appeals and, in short, to use the Courts fully and to avail himself of
any procedural remedies or guarantees provided by the law of the land in order that justice may be
administered on a footing of equality with nationals of the country. Although Article 6(1) of the
European Convention of Human Rights did not in terms create a right of access in 1975, the
European Court of Human Rights held, in Golder v. UK, that such a right was inherent: ‘It would be
inconceivable ... that [Art. 6(1)] should describe in detail the procedural guarantees afforded to
parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to
benefit from such guarantees, that is, access to a court.’3 This holding was controversial. Counsel for
the UK (Sir Francis Vallat) argued in his oral submissions that ‘the Government of the United
Kingdom had no idea when it was accepting Article 6 of the Convention that it was accepting an
obligation to accord a right of access to the courts without qualification’. This was an overstatement;
the jurisprudence of the European Court since then, as we shall see, has been characterised
precisely by the challenge of defining appropriate qualifications. Still, given the importance of his
contribution to our subject forty-three years earlier, it is interesting to read Sir Gerald Fitzmaurice’s
lengthy dissenting opinion. He disagreed that prison authorities had prevented access to courts
when they forbade a prisoner from consulting a solicitor with a possible view to instituting civil
action against a guard who had accused him of participating in a disturbance. But, he wrote, even if
his view of the facts was wrong, as a matter of principle: The conclusion I draw from the nature of
the successive texts [of the draft Convention] is that the contracting States were content to rely de
facto on the situation whereby, in practice, in all European countries a very wide measure of access
to the courts was afforded but without any definite intention on their part to convert this into, or
commit themselves to the extent of, a binding international obligation on the matter. This type of
obligation cannot, for reasons already stated, be internationally acceptable unless it is defined and
particularized, and its incidence and modalities specified. The Convention does not do this; and the
Court, with good reason, does not compound the misconceptions of the Judgment by attempting a
task that lies primarily within the competence of governments. As the Judgment itself in terms
recognizes [in para. 39(2)]: ‘It is not the function of the Court to elaborate a general theory of the
limitations admissible in the case of convicted prisoners, nor even to rule in abstracto on the
compatibility of the [United Kingdom] Prison Rules with the Convention’. But if it is not the function
of the Court to elaborate restrictions on the right, then a fortiori can it not be its function to
postulate the right itself which is one that cannot operate in practice without the very restrictions
the Court declines to elaborate. In antiquity the protection of the law could lawfully be openly
withheld from foreigners. In modern international life, even the least sympathetic government
understands the benefit of being seen as attached to the rule of law, and therefore tends to give the
foreigner his day in court. What better illustration than the Stalinist show trials of the value ascribed,
in terms of propaganda, to a semblance of respect for the forms of a legal process? (See the section
on ‘Pretence of form’ in Chapter 7.

Today, a claim is therefore unlikely to be based on the absolute refusal of access to justice, but
rather the refusal of access under reasonable conditions. Article 6(3)(b) of the European Convention
provides specifically with respect to criminal trials that the accused must be afforded ‘adequate time
and facilities for the preparation of his defence’. The European Court held that Greece breached this
principle in a case where an air force captain was convicted of disclosing military secrets.8 He was
first sentenced by the Permanent Air Force Court to two-and-a-half years’ imprisonment. He
petitioned the Courts-Martial Appeal Court, which appointed two experts to consider the
significance of the technical data on guided missiles which the defendant had communicated to a
private enterprise. The defendant was also allowed to appoint experts. Four days of hearings were
conducted; nineteen witnesses were heard. The appellate judgment maintained the conviction, but
reduced the sentence to a suspended term of five months on the grounds that the disclosed secrets
had been trivial. The problem for the European Court related to the handling of the final appeal to
the Court of Cassation (Areios Pagos). Under the Military Criminal Code, such an appeal had to be
lodged within a period of only five days. Although the appellate judgment was read out in the
defendant’s presence, it did not contain the Appeal Court’s answers to six detailed questions
deemed to be decisive on the issue of guilt. Accordingly the defendant was in a position to only file a
one-page petition to the Areios Pagos, perforce expressed in general terms. The six answers of the
Appeal Court were communicated to him forty-eight days after the judgment. At that point in time,
his ability to expand the petition was severely circumscribed. In these circumstances, the European
Court, while noting the ‘considerable freedom’ enjoyed by states in ‘the choice of appropriate
means’ to satisfy Article 6 of the Convention, affirmed that national courts must nevertheless:
indicate with sufficient clarity the grounds on which they based their decision. It is this, inter alia,
which makes it possible for the accused to exercise usefully the rights of appeal available to him.

In the premises: the rights of the defence were subject to such restrictions that the applicant did not
have the benefit of a fair trial. Government officials have found a number of indirect ways to
frustrate access to justice. Their effect is a denial of justice. In his important study in 1935, Judge de
Visscher reasoned that that access to court was denied de facto whenever a legal system imposed
‘abusive formalities or conditions, such as the requirement of a manifestly exaggerated bond’. In the
Ballistini case, local officials ignored requests to deliver copies of documents which were formally
necessary for him to bring an action. Venezuela once promulgated a decree (in 1873) to the effect
that any plaintiff ‘exaggerating’ the amount of his injury may be fined or imprisoned. In modern
times, government officials faced with vast foreign debts have taken measures destroying the
profitability of investments and then threatened further sanctions if the investors sought
international remedies. Granting an amnesty to parties who have committed torts or contractual
breaches may obviously have the effect of operating as an obstacle to judicial relief. Freeman
describes such examples, and the consensus in the course of the Conference on the Codification of
International Law in 1930 that such amnesties may constitute denial of justice. The case of Philis v.
Greece16 before the European Court of Human Rights involved a less obvious hindrance. It
concerned a national decree under which engineers could not directly institute court actions to claim
for fees, but had to request that the Technical Chamber of Greece do so on their behalf. The
government stated that the purpose was to protect engineers from pressure to accept excessive
reductions of fees from powerful employers, and thus to secure the rights of engineers to a
‘compulsory minimum scale of fees’. The system also allowed the Chamber to secure payment of a
compulsory insurance contribution. Philis did not approve of the way his claims were presented by
the Chamber, which used counsel of its, not his, choice. He sought to initiate an action directly. The
Athens Court of Appeal ruled that he lacked requisite capacity. He then came to the European Court,
alleging that he had been deprived of his right of access to a court. His complaint was upheld. The
Court recognised that the right of access to courts is not absolute, but affirmed – in one of many
iterations of this expression – that limitations on such access must not be so great ‘that the very
essence of the right is impaired’. By that test, there had been a violation since Philis ‘was not able to
institute proceedings, directly and independently’. Judge Pettiti, the lone dissenter of the nine
judges, reasoned that if the Chamber refused to bring proceedings, or did so incompetently, the
plaintiff could sue the Chamber for its inaction or negligence; therefore there was not a definitive
impairment of the right of action. This conclusion is unappealing. Philis was interested in suing his
debtor, not in initiating a conflict with his own professional association. And the notion of a right to
complain about negligent prosecution of his claim seems unrealistic. A litigant is not content with a
level of representation which escapes censure as negligent; he seeks total commitment, not
adequacy. In sum, the UK’s pleadings in the Golder case were wrong in apprehending that the
European Court would recognise ‘a right of access to the courts without qualification’. Limitations
are accepted when they are motivated by a legitimate purpose, when the means are proportional to
that objective, and when ‘the very essence’ of the right is not impaired. The perception of
international adjudicators as to what constitutes essence and impairment cannot be encapsulated in
an a priori definition. The Philis case suggests that the right of access to justice, beyond the right to a
fair trial before a lawful tribunal, also includes the liberty to decide whether, when and how one
pursues or protects one’s legal rights.