Access to Justice is Essential to the Wellbeing and Dignity of Older Persons … and Everyone Else
The last two years have brought heightened focus on the justice systems for various groups.?Not to be forgotten are the rights of older persons and their families to have their grievances heard and fairly adjudicated.?In this adapted excerpt from “Older Persons' Access to Justice ”, available from the Ageism Project (www.ageismproject.org ), I provide an introduction to “access to justice” for older persons and its role as a core element of the rule of law for everyone.
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According to the Office of the UN High Commissioner for Human Rights (“OHCHR”), “access to justice is a core element of the rule of law”[1] , which the UN Secretary-General has defined as “a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards”.[2] ?The OHCHR has further explained access to justice as follows[3] :
“It is a fundamental right in itself and an essential prerequisite for the protection and promotion of all other human rights. Access to justice encompasses the right to a fair trial, including equal access to and equality before the courts, and seeking and obtaining just and timely remedies for rights violations. Guaranteeing access to justice is indispensable to democratic governance and the rule of law as well as to combat social and economic marginalization.?Access to justice enables and enhances other rights such as the right to health, as it guarantees judicial and administrative protection of that right.?Therefore access to justice can be understood and interpreted as a cross-cutting right, in line with other principles such as equal recognition before the law.”
The UN Commission on Legal Empowerment of the Poor estimated in 2008 that four billion people were excluded from the rule of law and the Hague Institute for the Internationalization of Law estimated in 2012 that a majority of the people in the world (perhaps even as many as two-thirds) suffered from what Carmona and Donald described as “access to justice gap”.[4] ?Carmona and Donald also said that the Hague Institute report found that “[e]very year, one in every eight people on earth runs into a serious conflict that is hard to avoid: at home, at work, regarding land, about essential assets they bought, or with local authorities” and that “[a]bout half these people do not succeed in obtaining a fair, workable solution, although many of these problems could be addressed and solved with better access to justice”.[5]
The World Justice Project (“WJP”), an international civil society organization founded in 2006 as a presidential initiative of the American Bar Association (“ABA”) to advance the rule of law around the world, has developed a Rule of Law Index (“RLI”) as an assessment tool that can be used to measure at the country level how the rule of law is experienced and perceived by the public across eight factors: Constraints on Government Powers; Absence of Corruption; Open Government; Fundamental Rights; Order and Security; Regulatory Enforcement; Civil Justice; and Criminal Justice.[6] ?More than one-third of the questions included in the surveys used to compile the RLI are related to access to justice issues and the answers to these questions provided the basis for the creation of country-level access to justice profiles that cover the following areas: legal problems; legal capability; sources of help; problem status; process; and hardship.[7] ?According to a report issued by the WJP in April 2019 regarding global access to justice at that time, 1.5 billion people could not obtain justice for everyday civil, administrative, or criminal justice problems; 4.5 billion people were excluded from the opportunities the law provides, such as employment and housing; 253 million people lived in extreme conditions of injustice; and 5.1 billion people, two-thirds of the world’s population, were being challenged by at least one these issues relating to access to justice.[8] ?
The lack of access justice deprives people of their ability to have their voices heard, exercise their rights, challenge discrimination or hold decision-makers in society accountable.[9] ?In turn, when access to justice is provided in an effective manner, it “optimizes the emancipatory and transformative potential of the law”.[10] ?The participants at the 1993 Vienna World Conference on Human Rights called on every state to “provide an effective framework of remedies to redress human rights grievances or violations” and declared that “[t]he administration of justice, including law enforcement and prosecutorial agencies and, especially, an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments, are essential to the full and non-discriminatory realization of human rights and indispensable to the processes of democracy and sustainable development”.[11]
Access to justice is an important part of the UN’s Sustainable Development Goals (“SDGs”), with SDG 16 including the provision of “access to justice for all” in order to “promote peaceful and inclusive societies for sustainable development” and Target 16.3 of the SDGs being “[p]romote the rule of law at the national and international levels and ensure equal access to justice for all” and the associated indicators being (i) proportion of victims of violence in the previous 12 months who reported their victimization to competent authorities or other officially recognized conflict resolution mechanisms; and (ii) unsentenced detainees as a proportion of overall prison population.[12] ?It has been noted that the indicators endorsed for Target 16.3 focus on criminal justice, but that “a growing body of literature shows that a majority of people’s legal problems are civil, rather than criminal problems”, a conclusion that has led the UN Member States to agree that an indicator focused on “access to civil justice” should be incorporated into measurement of progress on Target 16.3.[13]
Access to justice has also been cited as an important condition to eradicating poverty.?Lima and Gomez noted that while poverty can be described as the lack of material goods and opportunities such as employment and ownership of productive assets and savings, it also includes “the lack of intangible assets and social goods, such as legal identity, good health, physical integrity, freedom from fear and violence, organizational capacity, the ability to exert political influence, and the ability to claim rights and live in respect and dignity”.[14] ?They went on to argue that “[a]ccess to justice as a human right is essential to address the origin of poverty” and that “[w]ithout access to justice, people living in poverty can neither claim nor exercise a wide range of human rights nor face the abuses or violations committed against them”.[15] ?
Carmona and Donald described poverty as “a multidimensional phenomenon that includes as one of its components chronic social, political and economic inequality” and argued for a human rights approach to alleviating poverty that recognized that poverty is “a human condition characterized by the sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other civil, cultural, economic, political and social rights”.[16] ?According to Carmona and Donald, combatting poverty not only requires “improving income levels and access to housing, food, education, health services and water and sanitation”, but also ensuring that those in poverty have access to the tools and resources of justice that can be deployed in order for them to enjoy their human rights and the protections of those rights afforded under the law including the ability to challenge crimes, abuses or violations committed against them.[17] ?
The United Nations Development Programme (“UNDP”) has stated that “[a]ccess to justice is a basic human right as well as an indispensable means to combat poverty, prevent and resolve conflicts” and noted that “[l]ack of access to justice limits the effectiveness of poverty reduction and democratic governance programmes by limiting participation, transparency and accountability”.[18] ?In her 2012 report to the UN General Assembly, the Special Rapporteur on Extreme Poverty and Human Rights noted that eradication of extreme poverty “not only requires improving access to housing, food, education, health services, water and sanitation, but also requires ensuring that persons living in poverty have the resources, capabilities, choices, security and power necessary to enjoy the whole spectrum of human rights”[19] and then went on to explain[20] :
“Access to justice is crucial for tackling the root causes of poverty, exclusion and vulnerability, for several reasons. First, owing to their vulnerability, persons living in poverty are more likely to fall victim to criminal or illegal acts, including sexual or economic exploitation, violence, torture and murder. Crime and illegality are also likely to have a great impact on their lives as it is hard for them to obtain redress and as a result they may fall further into poverty. Second, access to justice is important because justice systems can be tools to overcome deprivation, for example, by developing jurisprudence on social and economic rights. Third, when vulnerable persons cannot access justice systems, they are sometimes forced to take justice into their own hands through illegal or violent means, or to accept unjust settlements. Thus, fair and effective justice systems are an important way to tackle impunity and reduce violence and conflict. Fourth, the inability of the poor to pursue justice remedies through existing systems increases their vulnerability to poverty and violations of their rights. In turn, their increased vulnerability and exclusion further hamper their ability to use justice systems. This vicious circle impairs the enjoyment of several human rights.”
According to Lima and Gomez, “[p]eople living in poverty face serious obstacles to accessing justice systems, which include physical, social, and financial barriers” and are also hindered by the “lack of information about their rights and illiteracy or language barriers, together with the entrenched stigma associated with poverty” which make it difficult for impoverished persons to defend their rights or face justice.[21] ?People in poverty are a marginalized group and thus vulnerable to barriers to access to justice that include a lack of legal awareness (i.e., basic knowledge of the justice system), lack of access to legal services and diminished capacity to access judicial and quasi-judicial services.[22] ?
A 2017 report commissioned by the Legal Services Corporation found that 86% of the civil legal problems reported by low-income Americans in the year leading up to completion of the report received inadequate or no legal help, a significant issue given that 71% of low-income households experienced at least civil legal problem that year in a wide range of areas including domestic violence, veterans’ benefits, disability access, housing conditions and health care.[23] ?The report also found that low-income Americans sought professional legal help for only 20% of the civil legal problems they encountered and that the top reasons for not seeking professional help included deciding to deal with a problem on one’s own, not knowing where to look for help or what resources might exist and not being sure whether their problem was “legal” (low-income Americans general considered custody issues and wills/estates to be obviously “legal”).?Significant findings related to the civil legal needs and experiences of the 6.4 million low-income seniors in the US included the following: 56% of their households experienced at least one legal problem (10% of their households experienced 6+ problems); the most common types of legal problems for this group were health, consumer and finance, income maintenance and wills/estates; low-income seniors sought professional help for 19% of their legal problems and received inadequate or no professional legal for an estimated 87% of all their problems; and the top reasons for not seeking legal help among low-income seniors were not knowing where to look or what resources were available, deciding to deal with the problem on their own, not having time and not being sure it was a legal issue.
About the Author
This Work was written by Alan S. Gutterman, whose prolific output of practical guidance and tools for legal and financial professionals, managers, entrepreneurs and investors has made him one of the best-selling individual authors in the global legal publishing marketplace.??Alan launched and leads the Ageism Project , which is a California nonprofit public benefit corporation with tax exempt status under section 501(c)(3) of the Internal Revenue Code dedicated to advancing awareness of the challenges and opportunities associated with increased longevity; combatting and eliminating prejudice against older persons and age discrimination in all its forms; defending the human and civil rights of older persons secured by law, with particular attention to the rights of members of vulnerable groups; and promoting and advancing the interests of older persons in society as a whole through education and efforts to enhance intergenerational solidarity.?The Project engages in high-quality, independent research with the goal of providing innovative, practical recommendations for policymakers, businesses and civil society on addressing ageism and improving the lives of older persons.
For more information about Alan and his activities, please contact him directly at [email protected] , follow him on LinkedIn , subscribe to his newsletter and visit his website at alangutterman.com .?Many of Alan’s research papers and other publications are also available through SSRN and ResearchGate .?
Notes
[1] Right to access to justice under article 13 of the Convention on the Rights of Persons with Disabilities, UN Doc. A/HRC/37/25 (2017) , 3.
[2] The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General, S/2004/616 .
[3] Substantive inputs on the focus area “Access to justice” (Working document submitted by the Office of the High Commissioner for Human Rights to the Open-ended Working Group on Aging, 2021), A/AC.278/2021/CRP.4 , 2.
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[4] M. Carmona and K. Donald, Access to Justice for Persons Living in Poverty: A Human Rights Approach (Ministry for Foreign Affairs of Finland, 2014) , 7 (citing Making the Law Work for Everyone-Volume I (New York: Commission on Legal Empowerment of the Poor and UNDP, 2008), 1 and Trend Report, Part 1: Towards Basic Justice Care for Everyone-Challenges and Promising Approaches (The Hague: Hague Institute for the Internationalization of Law, 2012), 28-29).
[5] Id.
[6] The World Justice Project Rule of Law Index 2019 relied on data collected from more than 120,000 households and 3,800 surveys in 126 countries and jurisdictions and placed Denmark at the top of rankings with the US ranked 20th.
[8] World Justice Forum Report 2019 (The Hague: The World Justice Project, April 29 -May 2, 2019), 16.
[9] United Nations and the Rule of Law: Access to Justice (also describing access to justice as “the individual empowerment and enforcement component of the rule of law, which depends upon individuals’ knowledge of their rights and access to tools to enforce those rights effectively and affordably”).
[10] See general recommendation No. 33 (2015) on women’s access to justice , paragraph 2.
[11] Vienna Declaration and Programme of Action , paragraph 27.
[12] https://sustainabledevelopment.un.org/sdg16 .?Data relating to Target 16.3 compiled in 2018 indicated that one in three countries’ rule of law score declined in 2018, illustrating the significant challenges relating to rule of law and access to justice around the world particularly with respect to declines in fundamental rights and constraints on government powers. SDG16 Data Initiative, 2018 Global Report (July 2018), 9.
[13] SDG16 Data Initiative, 2018 Global Report (July 2018), 11 (citing Achieving Equal Access to Justice for all by 2030 (Overseas Development Institute, Working Paper 537, July 2018), 1).
[14] V. Lima and M. Gomez, “Access to Justice: Promoting the Legal System as a Human Right” in W. Leal Filho et al. (Editors), Peace, Justice and Strong Institutions: Encyclopedia of the UN Sustainable Development Goals (Springer Publishing) , 6.
[15] Id. at 7.
[16] M. Carmona and K. Donald, Access to Justice for Persons Living in Poverty: A Human Rights Approach (Ministry for Foreign Affairs of Finland, 2014) , 6-7 (citing E/C.12/2001/10, paragraph 8).
[17] Id. at 7.
[18] Practice Note: Access to Justice (New York: UNDP Democratic Governance Group: Bureau for Development Policy, 2004) , 3.
[20] Id. at Paragraph 5.
[21] V. Lima and M. Gomez, “Access to Justice: Promoting the Legal System as a Human Right” in W. Leal Filho et al. (Editors), Peace, Justice and Strong Institutions: Encyclopedia of the UN Sustainable Development Goals (Springer Publishing) , 7.
[22] V. Maru, “Access to justice and legal empowerment: a review of World Bank practice”, Hague Journal of Rule of Law, 2 (2010), 259.
[23] The Justice Gap: Measuring the Unmet Civil Legal Needs of Low-income Americans (Washington DC: Legal Services Corporation (Prepared by NORC at the University of Chicago), 2017) .