European Court Considers Access to a Court and Legal Aid as Elements of the Right to a Fair Hearing

Bakan v Turkey [2007] ECHR Application No 50939/99 (12 June 2007) Ciorap v Moldova [2007] ECHR Application No 12066/02 (19 June 2007)

Two recent decisions of the European Court of Human Rights regarding the scope and content of art 6 of the European Convention on Human Rights have confirmed that the right to a fair hearing subsumes a right of access to the courts.

The European Court has consistently held that, pursuant to the requirement that rights be interpreted and applied in a manner which renders them ‘practical and effective, not theoretical and illusory’ (see, eg, Goodwin v United Kingdom (2002) 35 EHRR 447, [73]-[74]; Airey v Ireland (1979) 2 EHRR 305, 314), the right to a fair hearing may subsume a right of access to the courts and to legal aid and representation (see, eg, Golder v United Kingdom (1975) 1 EHRR 524).

In Ciorap, theEuropean Court found a violation of art 6 in circumstances where an applicant who alleged that he had been tortured in custody was denied access to a domestic court.  Mr Ciorap had sought to bring proceedings before a domestic court regarding his treatment in detention but the Supreme Court refused to examine his complaint because of his failure to pay the prescribed court fee.  TheEuropean Court considered that, in view of the serious nature of his claim (namely, that he was force fed), he should have been exempted from paying the fee, regardless of his ability to pay.

In Bakan, the applicant, Mrs Bakan, sought to bring proceedings in the Turkish administrative court regarding her relative’s death.  Her relative, Mehmet Şerif Bakan, has been killed by a stray bullet fired by security forces in 1995.  The administrative court refused her application for legal aid on the ground that the action was ill-founded.  It then asked Mrs Bakan to pay within 30 days court fees amounting to EUR 170.  In 1998, the court ruled Mrs Bakan’s application not duly lodged on account of her failure to pay the court fees.

In finding that this amounted to a violation of art 6, theEuropean Courtobserved that the amount of the court fees represented a considerable sum for the applicant, particularly as she no longer had any source of income following her relative’s death.  The Court further considered that the refusal of the request for legal aid had totally deprived the applicant of the possibility of taking her case to court.  In light of both of these considerations, the Court found that the State had not discharged its obligation to regulate the right of access to a court in a manner compatible with the requirements of the right to a fair hearing.

Implications for the Victorian Charter

These decisions may be relevant to the interpretation and application of s 24 of the Charter, which provides that ‘a person charged with a criminal offence or a party to a civil proceeding has the right…to a fair hearing’.

On a narrow view, the term ‘party to a civil proceeding’ used in the Charter is more limited in its application than a term such as the ‘determination of rights and obligations in a suit at law’ used in art 6 of the European Convention and art 14 of the ICCPR, and will not subsume a right of access to the courts; the right to a fair hearing is only a right belonging to a person who is already before the court.

The better view, however, is that ‘party to a civil proceeding’ under s 24 of the Charter should be interpreted to include a potential party to a proceeding in circumstances where the denial of access to a court or legal aid would amount to the denial of a fair hearing itself.  This broader interpretation is consistent with the requirement pursuant to s 32(1) of the Charter that all statutory provisions must be interpreted compatibly with human rights (this interpretative principle relevantly applying to s 24 of the Charter itself).  It is also consistent with the fact that the right to a fair hearing under international law is considered by the Human Rights Committee to be fundamental and non-derogable (see, eg, HRC, General Comment 29: States of Emergency (Article 4), UN Doc CCPR/C/21/Rev.1/Add.11 (2001) [11]).

The decisions are available at

Philip Lynch is Director of the Human Rights Law Resource Centre