CCPR/C/GC/32
Page 3
procedural terms, of his/her right to claim justice. The right of access to courts and tribunals and
equality before them is not limited to citizens of States parties, but must also be available to all
individuals, regardless of nationality or statelessness, or whatever their status, whether asylum
seekers, refugees, migrant workers, unaccompanied children or other persons, who may find
themselves in the territory or subject to the jurisdiction of the State party. A situation in which an
individual’s attempts to access the competent courts or tribunals are systematically frustrated de
jure or de facto runs counter to the guarantee of article 14, paragraph 1, first sentence.7 This
guarantee also prohibits any distinctions regarding access to courts and tribunals that are not
based on law and cannot be justified on objective and reasonable grounds. The guarantee is
violated if certain persons are barred from bringing suit against any other persons such as by
reason of their race, colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.8
10.
The availability or absence of legal assistance often determines whether or not a
person can access the relevant proceedings or participate in them in a meaningful way. While
article 14 explicitly addresses the guarantee of legal assistance in criminal proceedings in
paragraph 3 (d), States are encouraged to provide free legal aid in other cases, for individuals
who do not have sufficient means to pay for it. In some cases, they may even be obliged to do so.
For instance, where a person sentenced to death seeks available constitutional review of
irregularities in a criminal trial but does not have sufficient means to meet the costs of legal
assistance in order to pursue such remedy, the State is obliged to provide legal assistance in
accordance with article 14, paragraph 1, in conjunction with the right to an effective remedy as
enshrined in article 2, paragraph 3 of the Covenant.9
11.
Similarly, the imposition of fees on the parties to proceedings that would de facto
prevent their access to justice might give rise to issues under article 14, paragraph 1.10 In
particular, a rigid duty under law to award costs to a winning party without consideration of the
implications thereof or without providing legal aid may have a deterrent effect on the ability of
persons to pursue the vindication of their rights under the Covenant in proceedings available to
them.11
12.
The right of equal access to a court, embodied in article 14, paragraph 1, concerns
access to first instance procedures and does not address the issue of the right to appeal or other
remedies.12
13.
The right to equality before courts and tribunals also ensures equality of arms. This
means that the same procedural rights are to be provided to all the parties unless distinctions are
based on law and can be justified on objective and reasonable grounds, not entailing actual
disadvantage or other unfairness to the defendant.13 There is no equality of arms if, for instance,
Communication No. 468/1991, Oló Bahamonde v. Equatorial Guinea, para. 9.4.
Communication No. 202/1986, Ato del Avellanal v. Peru, para. 10.2 (limitation of the right to represent
matrimonial property before courts to the husband, thus excluding married women from suing in court).
See also general comment No. 18 (1989) on non-discrimination, para. 7.
9
Communications No. 377/1989, Currie v. Jamaica, para. 13.4; No. 704/1996, Shaw v. Jamaica, para.
7.6; No. 707/1996, Taylor v. Jamaica, para. 8.2; No. 752/1997, Henry v. Trinidad and Tobago, para. 7.6;
No. 845/1998, Kennedy v. Trinidad and Tobago, para. 7.10.
10
Communication No. 646/1995, Lindon v. Australia, para. 6.4.
11
Communication No. 779/1997, Äärelä and Näkkäläjärvi v. Finland, para. 7.2.
12
Communication No. 450/1991, I.P. v. Finland, para. 6.2.
13
Communication No. 1347/2005, Dudko v. Australia, para. 7.4.
7
8