INFORMATION
Access to justice is both a right in of itself and the means for restoring the exercise of rights that have been disregarded or violated. This means that the obligations on States are multifaceted and require States, at a minimum, to ensure equality before the law, equality in respect of the guarantees of the due process of law and an effective remedy. As a procedural guarantee, access to justice is inextricably linked to all other State obligations and has been described as ‘the individual’s gateway to the various institutional channels provided by States to resolve disputes.
In General Recommendation 33, the CEDAW Committee describes the right of access to justice as “multidimensional”, and has usefully identified a number of indicators to help States comply with their obligations to respect, protect and fulfill human rights. Access to justice encompasses ‘justiciability, availability, accessibility, good-quality and accountability of justice systems and the provision of remedies for victims’. Moreover, States must adopt a gender-sensitive analysis in respect of each of these elements to ensure de jure and de facto equality.
Access to justice requires norms to be justiciable. In other words, States must ensure that rights and correlative legal protections are recognised and incorporated into the law, since only then can victims claim their rights and legal entitlements.All too often, States fail to introduce legislation that captures adequately the different forms of violence against women and girls; failure to do so constitutes a denial of access to justice. Few States have expressly incorporated their obligations in respect of economic, social or cultural rights as set forth in the ICESCR into domestic law. The ESCR Committee has made it clear that States have an international obligation to ensure that the Covenant norms are ‘recognized in appropriate ways within the domestic legal order’ and that ‘appropriate means of redress, or remedies, must be available to any aggrieved individual or group, and appropriate means of ensuring governmental accountability must be put in place.
Access to justice is founded on equality before the law. This means that States have a positive obligation to ensure that domestic laws do not directly or indirectly discriminate against women and girls. In addition, States must ensure that judicial and quasi-judicial institutions apply the principle of substantive or de facto equality to ensure that women and girls enjoy substantive equality with men and boys in all areas of civil and criminal law. In particular, States have a duty to abolish discriminatory barriers to justice including, for example, guardianship laws or practices whereby permission must be secured from family or community members before beginning legal action; gender-stereotyping; different evidentiary or procedural rules between women and men; and the need for parental or spousal authorisation to access education and healthcare (including sexual and reproductive health).
Access to justice is founded on the availability and accessibility of justice systems. It follows that States must ensure that women and girls are not de facto precluded from access to justice which may require additional measures to be taken. As the HR Committee has emphasized, attempts by a person to access the competent courts or tribunals which are systematically frustrated de facto will run counter to the guarantee of Article 14(1) ICCPR. Moreover, failure to address obstacles that prevent women and girls from accessing justice will constitute discrimination. States are required to remove financial and linguistic barriers that preclude a person’s right to access justice and to develop targeted outreach activities about available justice mechanisms in order not to discriminate de facto against certain groups, including women and girls in camps.
