access to justice as a guarantee of economic, social, and cultural rights.  a review of the standards adopted by the inter-american system of
human rights

EXECUTIVE SUMMARY

1.        International human rights law has developed standards on the right of access to judicial and other remedies that serve as suitable and effective grievance mechanisms against violations of human rights.  In that sense, States not only have a negative obligation not to obstruct access to those remedies but, in particular, a positive duty to organize their institutional apparatus so that all individuals can access those remedies.  To that end, states are required to remove any regulatory, social, or economic obstacles that prevent or hinder the possibility of access to justice.

2.        In recent years, the inter-American system of human rights (the "IASHR" or "System") has recognized the need to outline principles and standards on the scope of the rights to a fair trial and effective judicial protection in cases involving violation of economic, social and cultural rights ("social rights" or "ESCR"). 

3.        Accordingly, the Inter-American Commission on Human Rights (the "IACHR" or "Inter-American Commission") has prepared this review in order to highlight and systematize the case law of the IASHR–both the IACHR and the Inter-American Court of Human Rights (the "I/A Court H.R." or "Court") – on four core issues that it has regarded as priorities for the judicial protection of economic, social and cultural rights: 1) the obligation to remove economic obstacles to ensure access to the courts; 2) the components of due process of law in administrative proceedings concerning social rights; 3) the components of due process of law in judicial proceedings concerning social rights; and, 4) the components of effective judicial protection of individual and collective social rights. 

4.        These standards are valuable not only as guidelines for domestic courts to interpret the American Convention on Human Rights ("American Convention" or "Convention") but also in terms of their potential contribution for enhancing the institutional framework of social services and policies in the countries of the Americas, as well as for strengthening oversight, transparency, and accountability systems, as well as mechanisms for participation and societal oversight of public policies in this area.  This overview of the case law of the inter-American system also makes it possible to have a better analysis of the main problems in the region as regards access to justice systems.  Individual cases cannot be considered absolutely representative of the social and institutional problems of all the countries in the region; however, it is fair to say that the petitions system makes a good sound box for these problems.

5.        The first issue that affects the right of access to justice in the area of social rights is the existence of economic or financial obstacles in access to the courts and the extent of the positive obligation of the State to remove those obstacles in order to ensure an effective right to a hearing by a tribunal.  In this way, numerous aspects connected with effective access to justice, such as availability of a free public defense for persons without means and procedural costs, are of inestimable instrumental value to ensure the enforceability of economic, social and cultural rights.  In this regard, it is common for the unequal economic or social status of litigants to be reflected in an unequal possibility of defense in trial.

6.        In this respect, the IASHR has recognized the obligation to remove any obstacles in access to justice that originate from the economic status of persons.  Both the Inter-American Court and the IACHR have made it an obligation in certain circumstances to provide free legal services to persons without means in order to prevent infringement of their right to a fair trial and effective judicial protection.  With this in view, the Inter-American Commission has identified certain guidelines for determining the propriety of free legal counsel in specific cases.  These are: a) the resources available to the person concerned; b) the complexity of the issues involved; and, c) the significance of the rights involved.

7.        At the same time, the IACHR has determined that in certain judicial proceedings free legal counsel is necessarily required, in order to present and pursue those proceedings.  Thus, the Inter-American Commission has found that the technical complexity of certain constitutional proceedings obligates the provision of free legal counsel in order effectively to institute them.

8.        By the same token, the IASHR has established that procedural costs, whether in judicial or administrative proceedings, and the location of tribunals are factors that may also render access to justice impossible and, therefore, result in a violation of the right to a fair trial.  The organs of the IASHR have found that a proceeding in which the costs are prohibitive violates Article 8 of the American Convention.  In this regard, the Commission has held that judicial remedies created to review administrative decisions must be not only prompt and effective, but also "inexpensive" or affordable.

9.        In turn, the IASHR has begun to identify situations of structural inequality that restrict access to justice for certain segments of society.  In these cases, the IACHR has underscored the obligation of the State to provide free legal services and to strengthen community mechanisms for this purpose, in order to enable these groups that suffer disadvantage and inequality to access the judicial protective bodies and information about the rights they possess and the judicial resources available to protect them.

10.       A second aspect to be considered is the existence of a right to a fair trial in administrative proceedings as well as the precise scope or substance of that right.  The administrative sphere is where the majority of decisions regarding the award of social security benefits are made.  In most countries in the region social policies and the organization and workings of state social benefits have not usually been guided by a rights-based approach.  On the contrary, benefits have mainly been organized and provided according to the inverse logic of the handout approach and for that reason, institutional controls notwithstanding, this area of activity of public administration has traditionally been the preserve of the political discretion of the authorities. 

11.       In this way, the IASHR has established its position on the observance of due process guarantees in administrative proceedings on social rights.  At the same time, it has underscored the obligation for states to establish clear rules governing the behavior of their agents in order to avoid inappropriate levels of discretionality in the administrative sphere that might encourage arbitrary or discriminatory practices.

12.       In this way, in their examinations of cases that concern, inter alia, economic, social and cultural rights, rights of indigenous peoples, rights of migrants, and environmental rights, both the IACHR and the Inter-American Court have developed a clear standard as regards the full applicability of the guarantee of due process of law in administrative proceedings.  Thus, both organs have determined that due process of law must be observed in all proceedings for the determination of obligations and rights. 

13.       In keeping with this notion, the IASHR has underscored the need to regulate and restrict state discretionary power.  The Court and the IACHR have determined that the activities of administrations are subject to specific limits, among them respect for human rights.  In cases that involve especially vulnerable groups, the Inter-American Court has identified the need to draw links between the scope of administrative due process and effective observance of the prohibition of discrimination. 

14.       The IASHR has begun to identify the elements that comprise the rights to a fair trial in administrative proceedings.  In this connection, the Inter-American Commission has considered that one of the elements that make up administrative due process is the guarantee of a hearing for the determination of the rights at issue.  According to the IACHR, that guarantee includes: the right to legal assistance; the right to exercise the right of defense; and the right to a reasonable time in which to prepare and formalize arguments, as well as to seek and adduce the corresponding evidence.  The Inter-American Commission has also concluded that prior notification of charges is also a core component of that guarantee.

15.       The IACHR and the Court have also pinpointed the right to a reasoned decision on merits and the need to ensure publicity of administrative proceedings as integral components of due process.  Furthermore, the IASHR has underscored the importance of the right to an administrative proceeding in a reasonable time.  The Inter-American Court has determined that a prolonged delay in an administrative proceeding constitutes, in principle, a violation of Article 8 of the Convention and that, in order to refute such a conclusion, it is up to the State to show that the delay in the proceeding was due to the complexity of the case or to the conduct of the parties.

16.       Another element of the guarantee of due process of law in administrative proceedings that has evolved in the framework of the IASHR is the right to judicial review of administrative decisions.  In this respect, the IACHR has determined that any law or measure that obstructs access to the courts and is not warranted by what is reasonably needed for the administration of justice must be regarded as contrary to Article 8(1) of the Convention.  The IACHR has also made a number of clarifications as to the appropriate extent of this review, and stated that there should be at least a basic judicial supervision of the lawfulness and reasonableness of administrative decisions, in order to ascertain that they are compatible with the guarantees enshrined in the Convention.

17.       The third aspect examined in the case law of the IASHR is the existence of clear criteria on due process of law in judicial proceedings, in cases concerning the determination of economic, social and cultural rights.  The case law of the IASHR has recognized a close link between the scope of the rights embodied in Articles 8 and 25 of the American Convention.  Accordingly, it has been determined that states have the obligation not only to design and adopt into law effective remedies for the comprehensive protection of human rights, but also to ensure proper implementation of said remedies by their judicial authorities in proceedings that offer the due guarantees. 

18.       There is a direct connection between the suitability of available judicial remedies and the real possibility of observance of economic, social and cultural rights.  Both the Inter-American Court and the IACHR have started to identify those elements that comprise the right to a fair trial enshrined in Article 8(1) of the American Convention as regards social rights proceedings, which bear certain characteristics that distinguish them from other criminal or civil proceedings, in addition to having a number of features in common. 

19.       The IASHR has identified the principle of equality of arms as an integral part of the right to a fair trial and has begun to develop standards for its observance and assurance.  This principle is a highly significant given that the types of relationships governed by social rights usually give rise to and presuppose conditions of inequality between the parties in a dispute --workers and employers-- or between the beneficiary of a social service and the State that provides the service.  That inequality generally translates into disadvantages in the framework of judicial proceedings.

20.       The Court has found that real inequality between the parties in a proceeding engages the duty of the State to adopt all the necessary measures to lessen any deficiencies that thwart effective protection of the rights at stake.  The Inter-American Commission has also noted that the particular circumstances of a case may determine that guarantees additional to those explicitly prescribed in the pertinent human rights instruments are necessary to ensure a fair hearing.  For the IACHR this includes recognizing and correcting any real disadvantages that the parties in a proceeding might have, thereby observing the principle of equality before the law and the prohibition of discrimination.

21.       The right to a reasoned decision on the merits of a matter has also been recognized by the IACHR and the Court as an integral element of due process of law in judicial proceedings.  Thus, the Inter-American Commission has found that after the stages in which the evidence and arguments are presented, the jurisdictional organs should provide a reasoned basis for their decisions and so determine the admissibility or not of the legal claim on which the complaint is founded.  The Court, too, has held that states should ensure that effective judicial remedies are decided in accordance with Article 8(1) of the American Convention, for which reason, the courts should adopt decisions that address the merits of suits brought before them.

22.       The right to a trial within a reasonable time is another of the components of the guarantee of a fair trial in judicial proceedings that is particularly relevant as regards protection of social rights.  The IACHR and the Inter-American Court have identified certain criteria for determining a reasonable time in a proceeding.  These are: a) the complexity of the matter; b) the judicial activity of the interested party; c) the behavior of the judicial authorities; d) the purpose of the judicial proceeding in question; and, e) the nature of the rights at issue.

23.       In various precedents dealing with economic, social and cultural rights, the Inter-American Commission has emphasized the need to ensure expedition in proceedings on petitions for constitutional relief (amparo).  The IACHR has determined that timeliness is critical to the effectiveness of a remedy and that the right to judicial protection requires that courts act with due dispatch in issuing opinions and decisions, particularly in urgent cases.  Accordingly, the Inter-American Commission has underscored that the organs responsible for dispensing justice unquestionably have the obligation to conduct proceedings quickly and promptly.

24.       In this way, the IACHR has pointed out that the main criteria in making a determination as to reasonable time in proceedings is not the quantity of actions, but their efficacy.

25.       With respect to this right, the IACHR has also found in a number of cases that the length of a trial should be counted from the start of the administrative proceedings, not when the case reaches the judicial stage.  While it cannot be said that a definitive standard yet exists on this issue, the case law of the IACHR denotes that the IASHR has begun to adopt a position in this respect.

26.       In turn, the organs of the IASHR have indicated that judgment enforcement should also be considered an integral part of the proceeding and that, consequently, it should be taken into account in examining if the length of a trial is reasonable.  The foregoing is due to the fact that the right of access to justice requires that all disputes be settled within a reasonable time.  This issue is critical because in many social rights cases --particularly in connection with social security matters-- judgment enforcement proceedings have been severely delayed and obstructed by emergency rules and dilatory defense measures in favor of states. 

27.       The fourth aspect examined by the IASHR is the right to effective judicial protection of social rights.  This right creates an obligation for states to provide suitable and effective judicial remedies for the protection of social rights, in both their individual and their collective dimension.  The traditional judicial remedies on the law books were conceived for the protection of conventional civil and political rights.  Most countries in the hemisphere have created and enacted regulations on simple and prompt judicial remedies to protect rights in serious and urgent situations.  However, often these remedies are not adequate for protecting social rights.  Sometimes this is due to limits on the standing of groups or collectives of victims of violations, or to bureaucratic delays in judicial proceedings, which render them ineffective.  In some cases there are problems in accessing these remedies because the protection does not extend to certain social rights owing to the fact that they are not considered fundamental rights, or because the procedural requirements for their admission are excessively onerous.  The IASHR has sought to establish a number of basic principles to be met by urgent protection remedies in order to be compatible with the American Convention.  The right to effective judicial protection also requires that judicial procedures intended to protect social rights do not impose conditions or obstacles such as to render them ineffective for accomplishing the purposes for which they were designed.  Thus, the IASHR has found that in certain cases there are major obstacles and restrictions to the enforcement of binding judgments against states, in particular with respect to judgments that recognize social security rights.  The tendency to invoke emergency laws in this area limits the possibility of states to discharge financial obligations and tends to grant disproportionate privileges to the administration vis-à-vis the persons whose rights have already been recognized by the courts.

28.       Article 25 of the Convention establishes the duty of states parties to provide a simple, prompt, and effective recourse for the protection and assurance of rights.  Thus, the organs of the IASHR have set about drawing up standards on the scope of that obligation in the area of economic, social and cultural rights.  Both the IACHR and the Inter-American Court have identified the need to provide procedural measures by which to ensure immediate -and even precautionary or preventive- protection of social rights even though the merits of the matter in question may require more prolonged analysis.

29.       The Inter-American Commission has identified certain basic characteristics that such measures should meet in order to be considered suitable by the standards of the American Convention.  Thus,  it has found that such remedies should be simple, urgent, informal, accessible, and processed by independent bodies; that they can be processed on an individual basis or as collective precautionary actions to protect a particular group or one that is identifiable; that the such remedies enjoy broad, active legitimacy; that individuals have the opportunity to approach federal or national legal entities when bias is suspected in the conduct of state or local bodies, and, finally, that provision be made for the implementation of protective measures in consultation with the affected parties.

30.       On this point, the IACHR has noted that inasmuch as such actions are designed to protect fundamental rights in urgent cases, the evidentiary procedures should not be the same as that required in ordinary proceedings; the idea is that measures be adopted within a brief time period for the immediate protection of the threatened rights.

31.       At the same time, in recent years the Inter-American Court and the IACHR have also recognized the need for protection of economic, social and cultural rights, no longer simply in their individual dimension, but also in their collective dimension.  In this framework, the IASHR has begun to outline standards on judicial protection mechanisms designed to ensure access to collective litigation and, in particular, on the scope of the obligation of states to make available grievance procedures of this type.  The IASHR has clearly evolved in this area insofar as it has expressly recognized the collective dimension of certain rights and the need to draw up and put into practice legal mechanisms in order fully to ensure that dimension.  Thus, the greater scope that the organs of the IASHR have recognized to the guarantee provided in Article 25 of the American Convention, in order to include effective judicial protection of collective rights in its framework, is plainly visible.

32.       At the same time, of late the case law of the IASHR has also been firmer and more robust in demanding effective observance of the right to effective judicial protection for economic, social and cultural rights in their individual dimension.  Thus, for example, the Inter-American Court has recognized the need for states to design and implement effective judicial grievance mechanisms to claim protection of basic social rights, such as the rights of workers.

33.       Finally, in recent years, the System has made significant strides in setting standards on the obligation of states to have in place mechanisms to ensure the effective enforcement of judgments handed down by the judiciary in each state.  In this regard, The Inter-American Commission has taken it upon itself to underscore certain distinctive features of the judgment enforcement process when it is the State that is required to carry out the judgment.  In this way, it has noted that the obligation of the State to guarantee the enforcement of judicial rulings takes on special importance when it is the State itself that must carry out the ruling, whether this is to be done through the executive, legislative or judicial branch, at the provincial or municipal level, through the central administration or the decentralized structure, through public enterprises or institutes, or any similar body, since such bodies are part of the State and generally enjoy procedural privileges, such as freedom from attachment of their assets.  According to the IACHR, these bodies may seek to use their power and privileges in an effort to ignore judicial rulings that go against them.  The Inter-American Commission considers that when an organ of the State is unwilling to carry out an unfavorable judgment, it may try to ignore the ruling simply by failing to observe it, or it may opt for more elaborate methods also with the aim of rendering the ruling ineffective, while trying to maintain a certain appearance of formal validity in the way in which it acts.

34.       The IACHR has held on several occasions that failure to abide by a binding judicial decision constitutes a continuing breach of Article 25 of the American Convention.  In this regard, the Inter-American Commission has also outlined an incipient standard whereby it has held that non-compliance with judicial rulings that protect social rights, such as the right to social security, may also amount to a violation of Article 26 of the American Convention.

35.       At the same time, the IACHR has determined that the right to effective judicial protection requires the implementation of court-ordered provisional measures.  Accordingly, failure to implement such measures may also constitute violation of this right.

36.       The Inter-American Commission has also forged an important standard regarding the lengths to which victims should have to go in seeking compliance with judicial rulings in their favor.  Accordingly, the Commission considered that states should enforce such judicial decisions immediately, without making it necessary for the persons affected to bring additional actions of a criminal, administrative, or any other nature, in order to secure their enforcement.

37.       The Commission has also been emphatic with regard to the need to ensure enforcement of administrative decisions.  Thus, it considers it necessary for the Administration to have effective mechanisms to ensure compliance with orders issued by administrative authorities.

38.       Both the Inter-American Court and the Inter-American Commission have started to develop important standards on the design and implementation of effective judgment enforcement mechanisms.  In this connection, the Court has found that State responsibility does not end when the system of justice issues a final judgment and it becomes binding.  In the Court’s view, from that point forward the State must also guarantee the necessary means to enable effective execution of said final judgment.  Indeed, the right to judicial protection would prove illusory if the State’s domestic legal system were to allow a final binding decision to remain inoperative to the detriment of one of the parties.

39.       In keeping with the foregoing, the Court has considered that to speak of "effective judicial remedies" it is not sufficient for final judgments to be delivered that protect the rights at issue, since the enforcement of judgments should be considered an integral part of the right to effective judicial protection.  At the same time, the Court has held that in the case of judgments on guarantee remedies, due to the special nature of the protected rights, states should comply with them as soon as possible, adopting all necessary measures to that end.  On that score, the Court has emphatically stated that budget regulations may not be cited as an excuse for a protracted delay in complying with the judicial decisions that protect human rights.

40.       Thus, the Court has found that delay in executing a judgment may not be such as to cause greater impairment of the rights protected in the decision and, so, undermine the right to effective judicial protection.

I.          INTRODUCTION

41.       International human rights law has developed standards on the right of access to judicial and other remedies that serve as suitable and effective grievance mechanisms against violations of human rights.  In that sense, states not only have a negative obligation not to obstruct access to those remedies but, in particular, a positive duty to organize their institutional apparatus so that all individuals can access those remedies.  To that end, states are required to remove any regulatory, social, or economic obstacles that prevent or hinder the possibility of access to justice. 

42.       In recent years, the inter-American system of human rights has recognized the need to begin to outline principles and standards on the scope of the rights to a fair trial and effective judicial protection in cases involving violation of economic, social and cultural rights. 

43.       Accordingly, the Inter-American Commission has prepared this review in order to highlight and systematize the case law of the IASHR–both the IACHR and the Court–on four core issues that it has regarded as priorities for the book that the at the judicial protection of economic, social and cultural rights: 1) the obligation to remove economic obstacles to ensure access to the courts; 2) the components of due process of law in administrative proceedings concerning social rights; 3) the components of due process of law in judicial proceedings concerning social rights; and, 4) the components of effective judicial protection of individual and collective social rights. 

44.       These standards are valuable as guidelines for domestic courts to interpret the American Convention.  Furthermore, they can enhance the institutional framework of social services and policies in the countries of the Americas, strengthening oversight, transparency, and accountability systems, as well as mechanisms for participation and societal oversight of public policies in this area.  This overview of the case law of the inter-American system also makes it possible to have a better analysis of the main problems in the region as regards access to justice systems.  Individual cases cannot be considered absolutely representative of the social and institutional problems of all the countries in the region; however, it is fair to say that the petitions system makes a good sound box for these problems. 

45.       The purpose of this review is to underscore and systematize the principal standards adopted by the IACHR in its reports on individual petitions, country reports, and thematic reports; and by the Inter-American Court in its case law and advisory opinions.  The review is intended to be purely descriptive and does not include an examination of the case law mentioned, other than to organize precedents according to common themes and relate the principles and standards adopted to the specific problems and actual situations examined in each case.  The IACHR believes that this systematization could help improve understanding and dissemination of its jurisprudence and so serve to guide the application of international instruments in the countries of the region. 

46.       This review also serves as a basis for the IACHR to draft indicators to measure progress in the area of economic, social and cultural rights with a view to their application by the body created to monitor implementation of the Protocol of San Salvador.  In its proposed “Guidelines for Preparation of Progress Indicators in the Area of Economic, Social and Cultural Rights” submitted to the Permanent Council of the OAS, the IACHR recommends the inclusion of access to justice indicators, whose design is essentially based on the standards and problems examined in this review. 

47.       Furthermore, the IACHR believes that this document could also provide the building blocks for a more extensive research effort on the issue, in order to collect information on obstacles, problems, challenges, and progress in the performance by states of their duty to ensure access to justice for the protection of the economic, social and cultural rights. 

II.        THE RIGHT OF ACCESS TO JUSTICE AND THE OBLIGATION TO REMOVE ECONOMIC OBSTACLES TO ENSURE SOCIAL RIGHTS

48.       Numerous aspects connected with effective access to justice, such as availability of a free public defense for persons without means and procedural costs, are of inestimable instrumental value to ensure the enforceability of economic, social and cultural rights.  In this regard, it is common for the unequal economic or social situation of litigants to be reflected in an unequal possibility of defense in trial.  One aspect that affects the extent of the right of access to justice has to do with economic or financial obstacles in access to the courts and with the scope of the positive obligation of the State to remove those obstacles in order to ensure an effective right to a hearing by a tribunal.

49.       Policies that are designed to ensure legal services for persons without means act as mechanisms to compensate for situations of material inequality that impair the effective protection of individual interests.  Therefore, it may be that judicial polices are connected with social services and policies.  Accordingly, this is an area in which it is worth determining the precise scope of state obligations and the principles on which the organization and provision of services of this type should be based, inasmuch as they are essential instruments for ensuring the exercise of human rights by excluded and impoverished sectors.

50.       The IASHR has recognized the key role of the realization of the right of access to justice in ensuring human rights in general and social rights in particular.  It has established a series of standards that impact on the workings of judicial systems in the region.

A.         The Obligation to Provide Free Legal Counsel

51.       It was in Advisory Opinion OC-11/90 of the Inter-American Court of Human Rights,[1] that the IASHR first specifically addressed the need to remove obstacles in access to justice that might originate from a person’s economic status.[2] On that occasion, the IACHR submitted a request for an advisory opinion to the Court in which it inquired, inter alia, if the rule of exhaustion of domestic legal remedies applied to an indigent, who, because of economic circumstances, was unable to avail himself of the legal remedies within a country.^[3]

52.       In this framework, the Inter-American Court confirmed the prohibition of discrimination against persons by reason of their economic status and found that "…[i]f a person who is seeking the protection of the law in order to assert rights which the American Convention guarantees finds that his economic status (in this case, his indigence ) prevents him from so doing because he cannot afford […] the necessary legal counsel […], that person is being discriminated against by reason of his economic status and, hence, is not receiving equal protection before the law."^[4]

53.       On this occasion, despite recognizing the positive obligation of the State to ensure access to justice, the Court only went as far as the noting that “the circumstances of a particular case or proceeding -its significance, its legal character, and its context in a particular legal system- are among the factors that bear on the determination of whether legal representation is or is not necessary for a fair hearing.”[5]

54.       In the framework of a later advisory opinion, the Court again referred expressly to the duty of the state to provide free legal counsel.  In this connection, in Advisory Opinion OC-18/03, "Juridical Condition and Rights of the Undocumented Migrants,"^[6] the Court found that the refusal to provide a free public legal aid service to a person without means constitutes a violation of the rights to a fair trial and to effective judicial protection.  In that opinion, the Court set out the aforementioned standard in the following terms:

The right to judicial protection and judicial guarantees is violated for several reasons: owing to the risk a person runs, when he resorts to the administrative or judicial instances, of being deported, expelled or deprived of his freedom, and by the negative to provide him with a free public legal aid service, which prevents him from asserting the rights in question.^[7]

55.       It is appropriate here to cite the "Report on the Situation of Human Rights in Ecuador" prepared by the IACHR in 1997.^[8] In that report, the Inter-American Commission referred to the importance of providing free legal services in order to comply with the mandate contained in the American Convention.  The IACHR observed that:

Domestic law requires that individuals be represented by counsel to access judicial protection.  Under the present system, litigants who are unable to afford private counsel must wait for a public defender to become available.  Such claimants must often wait for long periods to have access to justice.  This is clearly inconsistent with the provisions of the American Convention.  […] discrimination in the application or availability of judicial guarantees on the basis of economic status is prohibited by a reading of the provisions of Articles 1.1, 8 and 24 of the American Convention […] Given that all claimants must be represented by counsel to pursue their actions, the number of public defenders available to assist claimants must be increased, so that this service is available to every individual who requires them to have access to judicial protection to vindicate a protected right.^[9] (Emphasis Added)

56.       Thus, the IACHR has not only recognized the general standard establishing the obligation of the state to provide free legal assistance to persons without means,^[10] but also identified a series of criteria by which to determine its propriety in specific cases.  Thus, in the "Report on Terrorism and Human Rights,"[11] the Inter-American Commission has identified the following factors for the purposes of such a determination: a) the resources available to the person concerned; b) the complexity of the issues involved; and, c) the significance of the rights involved.[12]

57.       In the Case of Andrew Harte and Family, the IACHR outlined certain guidelines as regards the necessary proof to attest to lack of access to justice for economic reasons.  Mr. Harte was a Guyanese national and a permanent resident of Canada.  In 1994, Canada ordered his deportation because of multiple convictions for criminal offences.  Mr. Harte was scheduled to be deported to Guyana in October 1997.  In February 1998, Mr. Harte applied for a ‘Minister’s permit’ to allow him to remain in Canada.  The State denied his application in August 1998, with the argument stating that the proper procedure was an application to remain in Canada on humanitarian and compassionate grounds.  The petitioner contended that Mr. Harte did not have the money or access to legal aid to pursue judicial review of this decision.

58.       In his petition, Mr. Harte argued that he was denied access to domestic remedies on account of his indigence and inability to access legal aid at critical junctures of domestic legal processes.  Canada is not a party to the American Convention.  However, the Commission considered that the case law of the Inter-American Court was applicable to it in this case and so, therefore, were provisions of Advisory Opinion OC 11/90. 

59.       The IACHR examined the situation of Mr. Harte under the parameters set forth by the Court in said Advisory Opinion and found in its analysis of admissibility that:

Mr. Harte’s claim of indigence relates to his alleged inability to access legal representation generally and, more particularly, with respect to his alleged inability to pay the fees required by the State to pursue an application to remain in Canada on humanitarian and compassionate grounds.  In a statutory declaration submitted to the Commission on his behalf, Mr. Harte stated that he is unemployed and that his bail bond was posted by virtue of a loan raised by his mother and not by his own resources.  Mr. Harte also stated that he and the children reside with his mother, where he has the sole responsibility for their care, because their mother is unable to do so because of mental illness.  The Commission received no further information or evidence in support of Mr. Harte’s claim of indigence.  […] [T]he Commission has previously observed that “Allegations of indigence are insufficient without other evidence produced by the Petitioner to prove that he was prevented from invoking and exhausting the domestic remedies…” In the Commission’s view, Mr. Harte’s statutory declaration of indigence without any corroborating evidence is insufficient to establish that “indigence” prevented the Petitioner from invoking and exhausting domestic remedies in Canada.  Accordingly, the Commission finds that Mr. Harte was not prevented by indigence from accessing legal representation necessary to pursue domestic remedies or paying the requisite fees to apply to remain in Canada on humanitarian and compassionate grounds.[13] (Emphasis added)

60.        At the same time, the petitioner held that he was unable to avail himself of the services of community legal clinics because said clinics lacked “the resources or the competence to deal with cases like Mr. Harte’s.^”[14] In turn, the State furnished a comprehensive list of institutions that offer free legal assistance.  In this framework, the Inter-American Commission noted that the evidence of availability of legal representation was not disproved by the petitioner’s largely general and uncorroborated claims that Mr. Harte was refused legal aid or that community legal clinics were incapable of providing assistance.  Therefore, the IACHR concluded that legal assistance was available to Mr. Harte to invoke domestic remedies and it proceeded to declare the case inadmissible.

61.       This case enabled the IACHR to develop an important standard in this area.  Thus, it was determined that it is not sufficient to claim to be indigent and that legal assistance is unavailable but that such an assertion must be substantiated with appropriate evidence.^[15]

62.        The IACHR has also moved forward with the identification of certain judicial proceedings in which it has considered that free legal counsel is essential in order to comply with the mandate of the American Convention.

63.         In this respect, inter alia, in its report on merits in the Whitley Myrie case,[16] the IACHR considered that the State was obliged under the American Convention to provide individuals with effective access to constitutional motions, which may require the provision of legal assistance when individuals lack the means to bring such motions on their own.

64.          In this particular case, the petitioner demanded free legal assistance --on account of his indigence-- to bring a constitutional motion to challenge a criminal conviction; however, the standard set by the IACHR as regards the obligation of the State to provide legal assistance transcends the framework of criminal proceedings and is tied directly to the technical complexity of the type of judicial remedy that the victim was seeking in the case.  Thus, the IACHR took into account the argument that constitutional motions involve “sophisticated and complex questions of law” which require the assistance of counsel.

65.              Finally, in its recent report "Access to Justice for Women Victims of Violence in the Americas,"[17] the IACHR again drew attention to the need to offset situations of economic disadvantage and highlighted the consequent obligation to increase the availability of free legal assistance services.  In this regard, the IACHR observed:

Women of means have far greater access to the justice system than do economically disadvantaged women.  In their replies to the questionnaire, some States said that pro bono legal services were being provided to victims.  The IACHR, however, notes that given the severity and prevalence of the problem of violence against women, recognized as being one of the priority challenges, more pro bono legal services are needed.[18]
 

B.         Procedural Costs, Location of Tribunals, and the Right of Access to Justice

66.      In addition to the lack of organized free legal representation services, the IASHR has identified other factors that can render access to justice impossible: procedural costs and the location of tribunals

67.      In Advisory Opinion OC 11/90, the Court expressly recognized that lack of free legal assistance may not be the only economic obstacle to justice.  Thus, it found that procedural costs are also a factor to the borne in mind on this point.[19]

68.      In this connection, in its judgment in the Cantos case,[20] the Court held that:

This provision of the Convention [Article 8(1)] upholds the right of access to the courts.  It follows from this provision that States shall not obstruct persons who turn to judges or the courts to have their rights determined or protected.  Any domestic law or measure that imposes costs or in any other way obstructs individuals’ access to the courts and that is not warranted by what is reasonably needed for the administration of justice must be regarded as contrary to Article 8(1) of the Convention.[21] (Emphasis added)

69.        In that case, the Court had to decide, inter alia, if the amount of the filing fee that the Argentine courts demanded from the petitioner,[22] having refused him the benefit of litigating without costs, was compatible with the rights enshrined in Articles 8 and 25 of the American Convention.  In its ruling, the Court found:

[T]he amount set in the form of filing fees and the corresponding fine are, in the view of this Court, an obstruction to access to the courts.  They are unreasonable, even though in mathematical terms they do represent three percent of the amount of relief being claimed.  This Court considers that while the right of access to a court is not an absolute and therefore may be subject to certain discretional limitations set by the State, the fact remains that the means used must be proportional to the aim sought.  The right of access to a court of law cannot be denied because of filing fees.  […] The fact that a proceeding concludes with a definitive court ruling is not sufficient to satisfy the right of access to the courts.  Those participating in the proceeding must be able to do so without fear of being forced to pay disproportionate or excessive sums because they turned to the courts.  The problem of excessive or disproportionate filing fees is compounded when, in order to force payment, the authorities attach the debtor’s property or deny him the opportunity to do business.[23]

70.       Consequently, the Court determined that the amount charged patently obstructed Mr. Cantos’ access to the courts and thereby violated Articles 8 and 25 of the American Convention.

71.        With a view to removing economic obstacles of this type, the IACHR has begun to outline the scope of the various obligations of states, both as regards judicial proceedings, and in relation to the development of administrative procedures.

72.        In this connection, in the Yean and Bosico case,[24] the IACHR expressly referred to the need to set limits on costs in proceedings in order to prevent violation of fundamental human rights. 

73.        The aforesaid case provides a clear illustration of various aspects of the connection between administrative due process and the enjoyment and exercise of human rights.  While this case is examined in detail later in this report, it should be mentioned here that in its application to the Inter-American Court the IACHR requested that the Dominican Republic be ordered to:

C)         Create a legal mechanism that, in case of dispute, allows individuals to file their reports directly before the judicial instance, so that their complaints can be reviewed by an independent and impartial judicial organ.  D) This mechanism should provide a simple, prompt and inexpensive recourse for individuals without a birth certificate.[25] (Emphasis added)

74.        In this way, the IACHR added a new characteristic to the type of remedies that states are required to ensure in order to comply with the mandate contained in the American Convention.  Furthermore, it established the obligation to take steps to make certain that judicial remedies created to review administrative decisions are not only prompt and effective, but also “inexpensive.”

75.        In its arguments to the Court, the IACHR set an important standard with respect to costs in administrative procedures.  The Inter-American Commission determined that the insistence on certain requirements in the administrative procedure for late registration of births in the Dominican Republic, which were difficult to comply with and involved costs, amounted to obstacles that prevented the enjoyment of rights contained in the American Convention.  Concretely, the IACHR stated that,

The Central Electoral Board insists that a series of documents must be presented in order to proceed with a late declaration of birth.  These requirements violate not only rights contained in the Constitution and laws deriving from it, but also rights enshrined in the American Convention, because they are difficult to comply with, involve expenditure and constitute obstacles that prevent the enjoyment of the right to nationality of most children in the same situation as the children Dilcia and Violeta; namely, Dominicans of Haitian origin.^[26] (Emphasis added)

76.        In turn, in the above-cited report "Access to Justice for Women Victims of Violence in the Americas," the IACHR draws particular attention to the failure of judicial proceedings in cases of violence against women owing to the costs involved in the proceedings.

77.        In this connection, the research that IACHR conducted in preparing this report led it to conclude that lack of economic resources to furnish evidence very often obstructs progress in judicial proceedings on violence against women.  Concretely the IACHR observed that:

One of the problems cited by the prosecutors interviewed in Tegucigalpa was pursuing cases that complainants have already “abandoned”; this ties in with a number of factors, among them the economic means to mobilize and move the individual and witnesses, intimidation or threats on the part of the accused, or the use of extrajudicial avenues to settle the family dispute, such as mediation before other bodies.  Our view is that such cases should not be considered abandoned, since the problems with the system in terms of double victimization and the difficulties of getting a court hearing at no cost and on an equal footing, are more often the reasons why a victim is unable to see her case through to the end.[27] (Emphasis added)

78.        In the above-cited report, the IACHR also drew attention to another economic obstacle of enormous significance in terms of access to justice: location of tribunals.  On this point, the Inter-American Commission noted:

The judicial presence and state advocacy services available to women victims nationwide is inadequate, which means that victims have to draw on their own economic and logistical resources to file a complaint and then participate in judicial proceedings.[28] (Emphasis added)

79.        Faced with this situation, the Inter-American Commission highlighted the importance of community resources --such as justices of the peace and community ombudspersons-- and the need for them to have access to mechanisms and resources to ensure their effectiveness.  The purpose of the foregoing is to provide basic services to women victims of violence in rural, marginal and poor areas, as well as information on legal procedures, support with administrative procedures, and legal assistance to victims in judicial proceedings.[29]

80.        Further to the foregoing, in the aforementioned report of its Rapporteur on the Rights of Women the IACHR has pinpointed a number of structural problems that create economic obstacles in access to justice: a) the absence of institutions necessary for the administration of justice in rural, poor and marginalized areas;^[30] b) the lack of court-appointed attorneys or public defenders available for victims of violence who are without economic means;^[31] c) the economic cost of judicial proceedings.^[32]  Among its recommendations, the IACHR included the following:

Create adequate and effective judicial bodies and resources in rural, marginalized and economically disadvantaged areas so that all women are guaranteed full access to effective judicial protection against acts of violence.  2) Increase the number of court-appointed attorneys available for women victims of violence and discrimination…[33]

C.         Situations of Systematic Exclusion from Access to Justice

81.       The IACHR has recently begun to draw attention to certain social groups that are caught in situations of structural inequality and exclusion and, therefore, are denied the possibility of access to justice.

82.        In the Case of Simone André Diniz,[34] the petitioner was denied the possibility of securing employment because she was of African descent.  Ms. Diniz reported the racial discrimination she had suffered but the Office of the Attorney General simply decided that there were no grounds to bring a criminal suit for racism.[35]  The judge, in turn, accepted the arguments of the prosecution and decided to dismiss the case.

83.       In its report on merits in the case, the IACHR concluded that the State did not guarantee the full exercise of the right to justice and due process of law because it failed to pursue domestic remedies to look into the racial discrimination suffered by Ms. Simone André Diniz and, therefore, breached its obligation to ensure the exercise of the rights provided in Articles 8(1) and 25 in conjunction with Article 1(1) of the American Convention.

84.        With regard to the existence of economic obstacles in access to the courts in order to institute proceedings for the crime of racism, the IACHR noted:

The perpetrator of injuria racista in Brazil enjoys impunity in most cases.  According to attorneys of Afro-Brazilian organizations, the fact that insulto racial is not covered by Law 7716/89 creates a hindrance to the administration of justice, as injuria, according to the Brazilian Criminal Code, is a crime of private action, and so opening an investigation depends on the initiative of the victim.  Yet most victims of racism in Brazil are poor and have no way to hire an attorney.[36]

85.         This is a landmark case in the framework of the IASHR, since the Commission expressly identified the existence of a systematic practice on the part of the Brazilian judiciary that tended to undermine enforcement of the countries anti-racism law.[37]  Consequently, the Inter-American Commission drew attention to the fact that this practice gave rise to a generalized situation of unequal access to justice for victims of racial discrimination.[38]

86.         At the same time, in its report "Access to Justice for Women Victims of Violence in the Americas," the IACHR drew particular attention to the difficulties that Afro-descendant women and indigenous people have in availing themselves of judicial remedies.  With respect to the former, the IACHR noted that:

Afro-descendant women who live in marginalized, rural areas in small, tightly clustered social groups that still preserve their languages, traditions and customs and sometimes even their own systems of justice, will have to contend with problems of geographic accessibility, an inability to communicate with judicial authorities in their own languages, a knowledge of the process, and a lack of economic means.  These are the very same problems that indigenous women face.  And like indigenous women, Afro-descendant women will have to contend with discrimination on two levels: one based on their gender and the other based on their race.  […] Theirs is not unlike the situation of Afro-descendant women in urban areas, where the difficulties they will face in availing themselves of effective judicial remedies, have to do with their economic disadvantage and skin color.  In those areas where the economic factor and social exclusion have been conquered, the difficulties are generally related to skin color.[39]

87.        The IACHR also drew attention to the plight of indigenous women:

From a variety of sources and through implementation of the inter-American system’s mechanisms, the IACHR has compiled information on the obstacles that indigenous women encounter in attempting to access the justice system.  These obstacles are generally a function of the social exclusion and ethnic discrimination that they have historically suffered.  The problem that women encounter is compounded by the geographic remoteness of indigenous territories.  To be able to access the justice system, indigenous women may have to walk for days, overland or by water, to get to the nearest city to report the violence they have suffered.  This also poses evidentiary problems.  Indeed, an indigenous woman’s problems do not end when she reaches the city, because there she will likely encounter obstacles of another sort: financial problems, a lack of information, discomfort with an urban environment.  A lack of command of the language of the court is also routinely cited as one of the factors that makes access to justice difficult for indigenous women.[40]

88.          The IACHR considers that poverty is particularly prevalent among these women and that States, therefore, have the obligation to provide them with pro bono legal services to enable them to access the judicial protective bodies.  They also need more information about the resources available to them within the justice system and about their rights.[41]

D.         Conclusions

89.       The foregoing precedents show that the IASHR has recognized the obligation to remove any obstacles in access to justice that originate from the economic status of persons. 

90.       First of all, both the Inter-American Court and the IACHR have made it an obligation to provide free legal services to persons without means in order to prevent infringement of their right to a fair trial and effective judicial protection.  With this in view, the Commission has identified certain guidelines for determining the propriety of free legal counsel in specific cases.  These are: a) the resources available to the person concerned; b) the complexity of the issues involved; and, c) the significance of the rights involved. 

91.       At the same time, the IACHR has determined that in certain judicial proceedings free legal counsel is necessarily required, in order to present and pursue those proceedings.  Thus, the Inter-American Commission has found that the technical complexity of certain constitutional proceedings obligates the provision of free legal counsel in order effectively to institute them.

92.       In second place, the IASHR has established that procedural costs --whether in judicial or administrative proceedings-- and the location of tribunals are factors that may also render access to justice impossible and, therefore, result in a violation of the right to a fair trial. 

93.       In this way, the IASHR have found that any proceeding in which the costs are prohibitive is an outright violation of Article 8 of the American Convention.  On this point, the Inter-American Commission has held that judicial remedies created to review administrative decisions must be not only prompt and effective, but also “inexpensive.”

94.       Finally, the IASHR has begun to identify situations of systematic exclusion of particularly vulnerable sectors of society from access to justice.  In these cases, the IACHR has underscored the obligation of the State to provide free legal services and to strengthen community mechanisms for this purpose, in order to enable these groups to access the judicial protective bodies.  They also need more information about the resources available to them within the justice system and about their rights.