Necessary Condition: Access to Justice (2024)

7.8 Necessary Condition: Access to Justice

7.8.1 What is access to justice? Why is it a necessary condition?

Access to justice is more than improving an individual’s access to courts orguaranteeing legal representation.283 Access to justice is defined as the ability ofpeople to seek and obtain a remedy through formal or informal institutions of justicefor grievances284 in compliance with human rights standards.285 There is no accessto justice where citizens (especially marginalized groups) fear the system, see it asalien, and do not access it; where the justice system is financially inaccessible; whereindividuals have no lawyers; where they do not have information or knowledge ofrights; or where there is a weak justice system. Access to justice involves normativelegal protection, legal awareness, legal aid and counsel, adjudication, enforcement,and civil society oversight.286 Access to justice supports sustainable peace by affordingthe population a more attractive alternative to violence in resolving personal andpolitical disputes.

7.8.2 Guidance for Access to Justice

7.8.3 Approach: Equal Access287

In societies emerging from conflict, large segments of the population may not have hadaccess justice. Equal access involves extending the reach of formal288 rule of law institutionsto the population by removing barriers to their use. Strengthening access also involvesengaging the informal289 sector to enhance its reach, effectiveness, and compliancewith human rights standards.

7.8.4 Address barriers to both quantity and quality. In a society recovering fromviolent conflict, several barriers to justice—financial, geographic, linguistic, logistical,or gender-specific—are present. Improving access is not just about more courtroomsor more staff. It is also about quality of justice. Justice systems that are remote, unaffordable,slow, or incomprehensible to the public effectively deny legal protection.290Increase the quantity and quality of justice administration to address these problems.Better prepared defense attorneys, more citizen-oriented court staff, more reasonablehours, better information about the justice system are all means for improving quality. The justice system should be linguistically accessible with local language proceedingsor provision of interpretation.

7.8.5 Enhance physical access. Courthouses and police stations may only exist in urban,populated areas, leaving the rest of the country without proper access to the formaljustice system. Bring judges, prosecutors, defense counsel, court administrative staff(including translators), police, and corrections officials, as well as logistical/securitysupport and public information capacity to areas where the justice system has ceasedto function. While mobile courts may be needed in the emergency phase to deal withthe most acute needs, they can also provide a long-term solution to endemic access tojustice challenges.291 Efforts to build and staff courthouses and police posts outside ofurban areas should also be undertaken to increase access to justice.

7.8.6 Increase access through provision of legal aid. Legal information centers and legalaid offices that offer free or low-cost legal advice and representation, pro se projectsthat train people to represent themselves, and paralegal-based projects that train andemploy people to serve as advocates and mediators, can all increase public knowledgeof the legal system.292 Supplement legal aid schemes with paralegal aid schemes run byNGOs.293 Paralegals are trained in criminal law and procedure in order to provide legaladvice to suspects or accused persons who are brought before the informal justice system. They also sit in on police interviews and go to court to provide advice (but do notrepresent the accused). Legal assistance can also be provided by law students or recentgraduates through their law schools or legal resource centers.

7.8.7 Promote legal awareness. For the population to access justice, they must understandtheir rights and the means for claiming them. For most people in a war-tornstate, the laws and the formal justice system are alien institutions they fear or do notunderstand. Legal awareness helps counter this misunderstanding and promote accessto justice. Legal awareness campaigns can be conducted by the state but they are mosteffective when conducted by civil society at a grassroots level or through the media.Because providing information to huge populations is a significant challenge, trustedand familiar social networks (i.e., community-based formal and informal networks)can be used to enhance legal awareness efforts.295 Legal awareness of suspects and theaccused should also be promoted. Messages should be in local languages and shouldtake into account literacy rates.

7.8.8 Strengthen civil society as the foundation for promoting access to justice. Eventhough civil society may be shattered after violent conflict, its role in promoting accessto justice and for reforming rule of law is important.296 Civil society organizationsshould have a legal status to appear in court to undertake public interest litigation.Legal barriers to their work will need to be removed (e.g., laws that prohibit civilsociety from criticizing the judiciary). Development of civil society is further addressedin Section 8.8.

7.8.9 Recognize that increased access to justice depends on public confidence in the justicesystem. The citizen-friendliness and quality of institutions are as important as proximity tothe population they serve. Increasing access to justice is not always about quantity—qualityis very important when designing legal aid programs because poor legal representation isnot necessarily better than lack of legal representation. In war-torn societies, marginalizedgroups are especially vulnerable to discrimination and unequal treatment. Thus, justicesystems must be linguistically and culturally accessible. Try to ensure that staff membersare representative of the host nation population. Simplified procedures and widely promulgatedlaws and decisions help too.297

7.8.10 Approach: Remedies for Grievances

Maximizing access to justice298 involves the use of both informal/non-state and formal/state justice mechanisms based on strict compliance with human rights standards. Thiswill likely require harmonizing informal practices with international human rights law.

7.8.11 Understand informal justice mechanisms. These systems derive legitimacy fromtraditional, customary, or religious sources. In these environments, they often helpresolve disputes because the formal, state-based system does not reach the entire population,the population views informal mechanisms as more legitimate and effective,and the volume of cases may be too large for the formal system to process. Informalpractices may also continue functioning at the local level in the absence of a formaland codified legal system.299 Where these systems are ignored or overridden, the resultcan be the exclusion of large sectors of society from accessible justice.300

7.8.12 Use the local context to determine how and to what extent local practices should beincorporated into the formal legal system. During transitional phases, there will inevitablybe overlap and contradictions between formal and informal justice mechanisms. Considerthe compatibility of local practices with international norms, whether they can beintegrated within the formal justice system or have to stand alongside it, and whether thepractices serve to divide society or unite it.301

7.8.13 Modify or use informal systems in combination with formal mechanisms to ensureadherence to international human rights standards while maximizing access andpublic trust in the system. Some informal systems violate international human rightsstandards or promote biases and tensions that are drivers of conflict. Modificationscan be made, for example, to allow religious courts to have jurisdiction in certaincases but prevent them from carrying out punishments that would be consideredviolations of human rights.302 Determine under what circ*mstances cases shouldbe referred to the formal system and create mechanisms through which judges inthe formal system endorse or validate punishments handed down by the informalsystem.303 Informal systems should be subject to the same level of oversight and accountabilityas the formal system in order to promote public trust in their integrityand legitimacy.304

See Gap/Challenge: Section 7.11.5, Engagement with non-state or religious justice systems.

7.8.14 Support the adjudication of claims for a remedy through the formal state justicesystem and civil society.305 In order to seek and obtain a remedy, there has to be a adjudicationprocedure in place. In the early days after conflict, mobile courts may be used.Initiatives that enhance the independence of the judiciary—a cornerstone for accessto justice306—should also be prioritized. Other means of adjudication include nationalhuman rights commissions307 or alternative dispute resolution mechanisms that can beled by the state, by a non-state justice system (NSJS), or by non-state actors (e.g., civilsociety) such as through arbitration308 or mediation/conciliation.309 The establishmentof arbitration or mediation through the state justice system will require both law reformmeasures and specific mechanisms. This is a long-term venture. Arbitration and mediationthrough the non-state justice system or by non-state actors may already be ongoingand can be supported in the short term. Mediation or arbitration by civil society workswhere credible and influential NGOs can be identified.

7.8.15 Support the adjudication of claims for a remedy through the informal non-statejustice system.310 The non-state justice system will generally deal with close to 80percent of disputes in many countries.311 Non-state justice systems are systems thathave some form of non-state authority in providing safety, security, and accessiblejustice to the population and include traditional, customary, religious, and informalmechanisms.312 Consider ways to work with these systems, despite challenges such ashuman rights violations and the fact that NSJSs cannot address crimes outside theircommunities, such as organized crime, or disputes between communities.313 In theshort term, international and host nation actors should consider some of the followingoptions:

• Restoring internal accountability mechanisms (such as methods for selectingcustomary justice authorities or ensuring the possibility of appeal) and trainingnon-state justice authorities in mediation techniques and familiarizingthem with domestic laws.

• Promoting rights awareness or training community members or paralegals toadvocate for women and marginalized groups before the NSJS.

• Encouraging the recording of cases and their resolution to promote consistencyof decisions and to provide a basis for appeal to the formal system.

• Improving linkages between the formal and informal systems on criminal mattersin the short term and working out criteria for when the NSJS can deal withcriminal matters and when they must refer them to the formal system.

• Working with customary authorities, state actors, and civil society to incorporaterestorative principles such as compensation and reconciliation, into casesdealt with by the formal justice system.

• Working to mitigate harmful practices such as witchcraft trials. With regardto the latter activity, top-down prohibitions tend to be ineffective and counterproductive.314 A more effective way is to work with tribal leaders and othersto gain their acceptance of change.

7.8.16 Develop culturally acceptable alternatives to harmful practices.315 Dialogue andcommunity initiatives to develop culturally acceptable alternatives to harmful practicesare important. Another option is to develop alternatives for those who may potentiallybe subject to harmful practices by the NSJS by providing them with legal aid orresources to access the formal system. Focus on longer-term initiatives between theformal and informal systems to identify problems and construct solutions. Draw oncomparative examples from other countries that have struggled with the integration ofthe formal and NSJS to help design possible models of integration.

7.8.17 Support the enforcement of remedies.316 Remedies are useless if they are not enforced. The enforcement of remedies is the province of the prosecution service, the police,and the prison service. NGOs may also monitor the enforcement of remedies.

7.8.18 Approach: Fairness

A society emerging from conflict often suffers severe case backlog and other deficiencies.In spite of this challenge, the justice system must handle cases efficiently and predictably,according to set principles and procedures, including equality before the law and equalapplication of the law. An efficient system can provide some level of deterrence againstcriminal acts and discourages delaying cases, such as by bribes from those trying to influencedecisions.317

7.8.19 Ensure equal application of the law.318 In a society emerging from conflict, individualswith power and marginalized populations may receive unequal treatment. Thisimbalance in application will likely have caused deep mistrust in the system or mayhave led to violent resolution of disputes. Applying the law equally regardless of identity is critical to creating a semblance of fairness and legitimacy. This involves applyinglaws in a nondiscriminatory manner, treating all parties equally in the courtroom, andhaving rulings that are consistent with the law regardless of the identity of the parties(gender, class, religion). Ensure the law is consistently and equally applied in bothcriminal and civil matters (land titling, enforcement of leans, landlord-tenant disputes,and debt collection).

7.8.20 Promote procedural fairness.319 Procedural fairness helps mitigate abuse bypolice, judges, and prosecutors by establishing fair rules for legal proceedings andadhering to them. For criminal offenses, procedural fairness involves guaranteeing theright of those accused of crimes to know the charges levied against them in a languagethey understand, the right to obtain or be provided counsel, the right to presentevidence in their defense, the opportunity to hear or review the prosecutor’s evidence,the opportunity to confront and cross-examine witnesses (where oral proceedingsexist), and a right to a speedy trial, particularly if incarcerated. In civil matters, proceduralfairness ensures that all parties have a full and equal opportunity to be heard,to present evidence and arguments in support of their position, to have notice of andopportunity to respond to the case presented against them, and to receive timely andadequate notice of all court proceedings. Adequate procedural protection helps ensurethat law enforcement cannot violate the rights of individuals.

7.8.21 Facilitate transparency in all judicial processes.320 Transparency throughoutthe justice system guards against abuse of power by officials, such as court personneldestroying court records or judges altering the outcome of cases or making judgmentsthat contradict evidence. Consider transparent case-tracking mechanisms, which makeit difficult to tamper with files, and transparent trial processes, which prevent judgesfrom ruling in favor of power brokers when the evidence should lead to conviction.

7.8.22 Ensure effective application of the law, ensure adequate authority to enforcejudgments, and improve the efficiency of court administration and management. Judgmentsare useless unless they are effectively enforced. Consider the need for sufficientauthority for judges and enforcement agents to enforce judgments, including authoritiesfor issuing interim orders to freeze assets.321 Further, if individuals do not feel thattheir grievances will be addressed in an efficient and timely manner through a legitimatesystem, they may resort to violent alternatives. The majority of people should seethe judicial system as viable, responsive, and fair. Understand the roots of inefficiency,which may include inadequate procedures, lack of access, and discrimination.322 Legalreform programs should emphasize case management, budgeting, personnel, andfinancial policies. Due to the importance of court administrative functions, a specificadministrative office is established in some systems. Where possible, automation ofrecords and processes can significantly increase efficiency, enabling other reforms andimproving the quality of judicial decisions, even while pursuing longer-term reformand streamlining of processes. Online storage of legal materials, case information,previous decisions, and other materials can improve the quality of judicial decisions. These automated solutions can strengthen court statistical and analysis functions,which can assist with more efficient assignment of work and can support budget andstaffing decisions.323

7.8.23 Increase the knowledge and professionalization of justice personnel to dispensejustice. Education and training, as well as increased access to laws, are also critical toensuring professionalism of justice system personnel.324 For example, lawyers need tohave adequate knowledge of the law and legal procedures to effectively represent partiesin court, while judges need to fully understand applicable laws and trial procedures.Judicial and bar associations can serve as a community where good conduct is supportedand promoted.