A refugee’s right of access to courts is established in a number of international and regional instruments. This most notably includes the 1951 Convention, the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). However, refugees still experience a host of challenges when accessing this right in practice. This page outlines the relevant international and regional law, some of the challenges faced by refugees in securing this right, and the possible areas for advocacy.
The 1951 Convention
Article 16 of the 1951 Convention explicitly provides for the right of access to courts of law for refugees. It states that:
1. A refugee shall have free access to the courts of law on the territory of all Contracting States.
2. A refugee shall enjoy in the Contracting State in which he has his habitual residence the same treatment as a national in matters pertaining to access to the Courts, including legal assistance and exemption from cautio judicatum solvi.
3. A refugee shall be accorded in the matters referred to in paragraph 2 in countries other than that in which he has his habitual residence the treat- ment granted to a national of the country of his habitual residence.
Article 16(1) of the 1951 Convention provides that refugees ‘shall have free access to courts of law’. This basic right is enshrined without any restriction, and applies also to refugees who reside in a State not party to the 1951 Convention or who have no habitual residence at all. The refugee is also not required to be physically present on the territory of State whose court she wishes to access.
Article 16(2) provides for more specific rights concerning access to the courts for refugees who can establish habitual residence in a Contracting State. These rights include the enjoyment of ‘legal assistance’ and the ‘exemption from cautio judicatum solvi’. The latter means refugees are exempted from the need to pay security for court costs.
Article 16(3) stipulates that these rights are also applied to refugees habitually residing in a State that is not party to the 1951 Convention. They are to be given the same rights as the nationals in his country of habitual residence.
Universal Declaration on Human Rights
Article 10 guarantees the right to a fair and public trial if a person is charged with a criminal offence. This article stipulates that the court must be “independent and impartial”.
International Covenant on Civil and Political Rights
Article 14(1) states that:
All persons shall be equal before the courts and tribunals.
Although not explicit, it has been generally accepted that this principle of equality incorporates a right of equal access to the courts. In Angel N. Oló Bahamonde v. Equatorial Guinea (Communication No. 468/1991, U.N. Doc. CCPR/C/49/D/468/1991 ), the Human Rights Committee found “the notion of equality before the courts and tribunals encompasses the very access to the courts”. It also considers that if an individual’s attempt to access the competent jurisdiction is “systematically frustrated”, then it “runs counter to the guarantees of article 14, paragraph 1”.
Article 14(2) specifies that everyone shall “be entitled to a fair and public hearing by a competent, independent and impartial tribunal” in the consideration of her rights and obligations.
UNHCR ExCom Conclusion
The UNHCR ExCOM Conclusion, No. 22 (XXXII)-1981 states that asylum seekers who have been temporarily admitted to country pending arrangements for a durable solution should “be considered as persons before the law, enjoying free access to courts of law and other competent administrative authorities”. While Conclusions of the Executive Committee are not legally binding, they do hold considerable weight in the interpretation of international refugee law.
The right of access to courts is also provided for in several regional human rights instruments. This includes:
- the African Charter on Human and People’s Rights (Article 7)
- the American Convention on Human Rights (Article 8)
- the European Convention on Human Rights and Fundamental Freedoms (Article 6)
Similar to the ICCPR, these regional instruments frame the right of access to courts in terms of fair trial rights. For example, although the European Convention on Human Rights does not explicitly refer to a right of access to the courts, the case law of the European Court of Human Rights has long established that this is implicit within the fair trial guarantees provided by Article 6. In Airey v Ireland (ECtHR Application No. 6289/73 ) the European Court further stated “the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective.”
Access to the courts in practice
Common barriers preventing access to courts
In principle, refugees have a right of access to the courts. In practice, however, there are numerous obstacles that can impede this right. Refugees can often experience various legal, social, cultural, economic, institutional, and even physical, barriers that can impinge on their right of access to the justice system.
Common barriers preventing access to courts include:
- A lack of awareness about one’s rights and how to assert them;
- Excessively complex and formalistic court systems;
- Excessive court fees;
- Lack of affordable legal representation;
- Legal institutions unaware and insensitive to the needs of different cultures;
- Legal discrimination;
- Language barriers;
- Discriminatory and negative social attitude towards refugees;
- Lack of political will to bring about change for refugees’ situations; and
- Lack of physical access to legal services (particularly for refugees in camps).
Strategies to overcome barriers to courts
To enhance refugee protection, this section outlines possible strategies to overcome the barriers to justice.
The financial burden of going to court is a persistent barrier to refugees’ ability to access the courts. For this reason, it is important to advocate for a legal aid system that is accessible and sensitive of refugees’ particular needs. In countries where a legal aid system is either non-existent or ineffective, other methods to fill the gaps in the legal aid system should be considered and developed. This may include the use of volunteer lawyers, student lawyers and/or paralegals to provide advice on the law and legal processes.
Legal empowerment is one of the most valuable tools in overcoming barriers to access justice. This typically involves raising awareness among refugees of their rights and of the courts system in general. In addition, legal empowerment should strengthen and develop refugees’ capacity to assert their rights in court by increasing their skills and opportunities to access court institutions and procedures.
In some instances, litigation may be the only effective course of action to ensure that refugees’ right of access to courts is respected. This type of legal action can be very effective in achieving systematic change in legislation and practice. Such an approach can be fruitful in a number of ways. For example, the case itself may yield a positive result for the individual involved, the outcome may compel a change in law, policy or practice, or finally, it may simply be effective in raising awareness and exposing injustice.