UNAFEI PANEL DISCUSSION ON ACCESS TO JUSTICE
Matti Joutsen＊

In connection with the topic, ʻMeasures to enhance access to justice for children and women as victims inthe field of criminal justiceʼ, I have been asked to address two questions: 1) the background to the discussions
during the adoption of 2030 Agenda for Sustainable Development on the origin and development of theconcept of ʻaccess to justiceʼ, and what measures will be required in the future regarding access to justice, and2) the status of developing indicators on access to justice for the SDGs (target 16.3).

I. SIGNPOSTS ON THE ROAD TO THE SUSTAINABLE DEVELOPMENT GOALS
ʻAccess to justiceʼ has been incorporated into Goal 16 of the SDGs, which calls upon member states toʻ[p]romote peaceful and inclusive societies for sustainable development, provide access to justice for all, andbuild effective, accountable and inclusive institutions at all levels.ʼ This is backed up by Target 16:3, which isto ʻ[p]romote the rule of law at the national and international levels and ensure equal access to justice for all.ʼ
Several different elements of the United Nations system, and several constellations of stakeholders
contributed to this incorporation. Access to justice is regarded as a key element of the rule of law (and thus ahuman rights issue), and was recognized as such in paras 14-16 of the 2012 Declaration of the High-Level
Meeting on the Rule of Law,1 an important milestone in the formulation of Goal 16. Separately, access tojustice has been recognized also for example as a gender equality issue, a fundamental right of children, adevelopment issue, and a criminal justice issue.
The basic international instrument on the rights of women is the Convention on the Elimination of All
Forms of Discrimination against Women. This convention does not contain an express provision on access tojustice, although it is implicit in the second article, on protection of the rights of women. The 1995 Beijing
Womenʼs Conference considered the issue of access to justice in a rather piecemeal fashion, in connection
with violence against women (paras. 118 and 124), labour laws (para. 164), gender-based discrimination (para.
178) and general legal literacy (para. 227). Subsequently, access to justice has been recognized as afundamental element of the human rights of women.
Also the basic international instrument on children, the Convention on the Rights of the Child, does notcontain a specific reference to access to justice. Nonetheless, the Committee on the Rights of the Child has
held that the right to an effective remedy is an implicit requirement of the Convention. Access to justice forchildren is dealt with at length in the report presented by the High Commissioner for Human Rights in 2013
to the UN Human Rights Council, which held a special session on the theme of ʻaccess to justice for childrenʼ
(A/HRC/25/35).
Special Advisor, Thailand Institute of Justice.
30 November 2012, A/RES/67/1. These paragraphs read as follows:
14. We emphasize the right of equal access to justice for all, including members of vulnerable groups, and the importance ofawareness-raising concerning legal rights, and in this regard we commit to taking all necessary steps to provide fair,transparent, effective, non-discriminatory and accountable services that promote access to justice for all, including legal aid.
15. We acknowledge that informal justice mechanisms, when in accordance with international human rights law, play a positiverole in dispute resolution, and that everyone, particularly women and those belonging to vulnerable groups, should enjoy full andequal access to these justice mechanisms.
16. We recognize the importance of ensuring that women, on the basis of the equality of men and women, fully enjoy thebenefits of the rule of law, and commit to using law to uphold their equal rights and ensure their full and equal participation,
including in institutions of governance and the judicial system, and recommit to establishing appropriate legal and legislative
frameworks to prevent and address all forms of discrimination and violence against women and to secure their empowerment
and full access to justice.
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In respect of development, the UNDP sees the importance of access to justice in alleviating poverty andpromoting economic growth. The UNDP defines access to justice as the ability of people from disadvantaged
groups to prevent and overcome human poverty by seeking and obtaining a remedy, through the justicesystem, for grievances in accordance with human rights principles and standards.
Within the United Nations Crime Programme, in turn, the key instrument is the United Nations Principles
and Guidelines on Access to Legal Aid in Criminal Justice Systems was adopted as recently as 2012 (GAresolution 67/187). This is the first international instrument on the right to legal aid. It establishes minimum
standards for the right to legal aid in criminal justice systems and provides practical guidance on how toensure access to effective criminal legal aid services.

II. THE NEGOTIATIONS ON THE GLOBAL INDICATORSThe United Nations have developed an initial set of ʻGlobal Indicatorsʼ that set global benchmarks for thepractical implementation of the SDGs in all countries.2 The Global Indicators are intended both to promote
progress within countries and to facilitate comparisons of the progress made by countries relative to one
another.
In respect of access to justice, a grand total of two indicators are included in the Global Indicators:
16.3.1 Proportion of victims of violence in the previous 12 months who reported their victimization tocompetent authorities or other officially recognized conflict resolution mechanisms
16.3.2 Unsentenced detainees as a proportion of overall prison population
Several comments are in order regarding these two indicators. As background, it can be noted that they
were the result of an intensive debate. ʻAccess to justiceʼ has many dimensions, and many stakeholders wereinvolved in the negotiations. Each, of course, had their own special interests in seeking to ensure that at leastcertain aspects of access to justice would be assessed through the indicators. Few, if any, of the stakeholders
were fully satisfied with the two indicators that ʻmade the final cutʼ.
During the negotiations, other access to justice indicators had been proposed, among them- ratification and implementation of the key human rights treaties,- the proportion of those who have experienced a dispute in the past twelve months, who have accesseda fair formal, informal, alternative or traditional dispute mechanism, and who feel the process was just,- the physical distance to affordable and effective legal services,- accessibility of dispute settlement mechanisms,- the opinions of ʻusersʼ regarding the ʻfairnessʼ of justice processes,- the availability of counsel for criminal defendants, and- the financial threshold at which legal aid is provided.
The basic problem was that the proposed indicators had to be quantifiable (measurable); there had to besome prospect that the necessary data already is, or can readily be made, available at reasonable cost (andthat this data would be both valid and reliable)3, and the indicators had to be easy to understand and toconvey to the public. Furthermore, the indicators should capture elements of access to justice that are
particularly relevant for the purpose at hand.4 For a variety of reasons, the alternatives noted above were notincluded in the official list.
A second observation is that both of the final two access to justice indicators focus on criminal justice.
From the point of view of gender equality, the rights of children, the eradication of poverty and humandevelopment, access to civil justice is arguably as important as access to criminal justice, if not more so. Civil
law involves issues as diverse as proof of national identity, family and matrimonial rights, child custody, rights
The Global Indicators were established by the United Nations Interagency Expert Group on Sustainable Development Goals,or IAEG-SDG. They are available at https: //unstats. un. org/sdgs/indicators/Global%20Indicator%20Framework_A. RES. 71.
313%20Annex.pdf.
3This requires a balance between being satisfied with the status quo of what data are available, and proposing realistic (but notyet universally available) indicators that could play a role in catalyzing new data collection efforts and capacity building.
4
Timothy Hansen, ʻRule of Lawʼ Indicators in the SDGs, available at deliver20302030.org/?p=6859
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RESOURCE MATERIAL SERIES No. 105of the disabled, property rights, the right to accommodation, the right to fair employment and fair wages,
financial and consumer rights, commercial rights and contractual rights.
A third observation is that, even from the point of view of criminal justice, the two indicators are quite
limited. They focus only on victimization to violence, and on the use of pre-trial detention. There is nothing
about many key aspects of victimization (victimization to other types of crimes, the availability of victim
support, the availability of compensation), of the criminal process (the right to legal aid as a defendant or as avictim, confidence in the police, the length of proceedings, the right to appeal, satisfaction that the outcome
was ʻjustʼ) and of corrections.

III. ONGOING WORK ON INDICATORSIn light of the differences between countries, all countries are expected to establish their own national
indicators for measuring progress toward achieving each of the Goals, including Goal 16. Regional indicators
had been developed already (and for different purposes) in Europe (for example by the European Commission
for the Efficiency of Justice, and the Fundamental Rights Agency of the European Union) and in Latin
America (for example by the Economic Commission for Latin America and the Caribbean). National examples
include the comprehensive set of indicators developed in the United States.5 A number of other countries
conduct surveys that are useful in this regard; among them are a large number of developing countries.
Reference should also be made to sector-specific indicators, such as those developed to assess
implementation of CEDAW6 and of the two corresponding regional conventions on violence against women(the Council of Europe Convention and the Inter American Belém do Pará Convention), as well as theindicators developed by various organizations, institutes and think tanks, such as the OECD Social
Institutions and Gender Index, the Rule of Law Index developed by the World Justice Project, and the Gender
Statistics developed by the World Bank.

IV. HOW SHOULD WE FURTHER DEVELOP INDICATORS OF ACCESS TO JUSTICE?7Indicators should serve not only to assess progress in implementation of the SDGs, but also to strengthen
work on access to justice. Broadly speaking, indicators should be developed that deal with what could bereferred to as the enabling environment (the existence of remedies), the ʻsupply sideʼ of access to justice (theinstitutions and human resources that provide justice services, and their outreach to those in need of access)and the ʻdemand sideʼ of access to justice (the ability of persons to seek access to justice).8 Given the interestin gender equality, the rights of children and the rights of disadvantaged groups, data should ideally bedisaggregated by race, ethnicity, gender, age, disability, and other categories.
The enabling environment ensures that remedies exist. This includes international and constitutionallaw, legal and regulatory frameworks, and customary norms and jurisprudence that set out the rights andentitlements, and the legislation and safeguards that determine when and how persons can have access tojustice.
This enabling environment can be assessed by expert interviews, or reviews of legal documents. In
respect of the rights of women, one indicator could be the extent to which national laws prohibit direct andindirect discrimination in respect of legal capacity/standing, property rights, inheritance rights, rights within
marriage, rights to obtain a divorce and custody over children, the capacity to open a bank account, the right
Recommended Access to Justice Indicators for Implementation of Goal 16 of the UN 2030 Sustainable Development Agenda inthe United States. Developed for the “Civil Society Consultation with White House Legal Aid Interagency Roundtable on Goal
16 Access to Justice Indicators and Data”, Thursday, September 15, 2016 Washington, DC, available at http://web.law.columbia.
edu/human-rights-institute and http://ncforaj.org
6
See in particular Teresa Marchiori, A Framework for Measuring Access to Justice. Including Specific Challenges Facing
Women, Report commissioned by UN Women. Realized in partnership with the Council of Europe, October 2015, available athttps://rm.coe.int/1680593e83
7This section is based largely on Marchiori, pp. 123-140.
8See, for example, Marchiori, op.cit., p. 124, and Ramaswamy Sudarshan, Rule of Law and Access to Justice: Perspectives fromUNDP Experience, paper presented at the European Commission Expert Seminar on Rule of Law and the Administration ofJustice as Part of Good Governance, Brussels, 3-4 July 2003.
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The supply side of access to justice is the capacity of the formal and the informal justice system toprovide effective remedies through adjudication, enforcement and oversight. The supply side includes theoutcomes of the process of justice ‒ including the largely intangible issues of the fairness of the process andthe outcome.
Examples of supply side indicators include the number of judges (by sex, and by type and level of court),
the number of cases per judge, the provision of mandatory training for justice personnel on gender issues, thenumber of legal aid providers per 100,000 inhabitants (by sex, and by civil / criminal cases), the availability offree legal assistance for indigent defendants, the quality of the legal aid service provided, the percentage ofpersons reporting that physical access to justice fora is convenient in terms of distance, the average cost of
judicial proceedings (by type of case), the percentage of persons reporting that access to courts is affordable(by sex), the percentage of persons reporting having been asked to pay a bribe or other inducement to initiate
or expedite a court process or to obtain a favourable decision, the average length of procedures (by type ofcase), the availability of a small claims court or fast track procedure for small claims, and the number of casesthat are dropped or that exit the system through attrition.
The demand side (legal empowerment) involves legal awareness, the ability to use legal advice andrepresentation (legal aid), and the ability to access formal and informal justice services. The demand side also
relates to the question of justice needs, and of trust in the system of justice.
Examples of demand side indicators are the types and number of complaints that are lodged with dispute
resolution mechanisms, user surveys and expert surveys of the main justiciable issues experienced bypersons, the action taken by them to solve the disputes, and the main barriers that they have experienced inaccessing justice; household surveys of the extent to which women and men are aware of specific laws orrights, as well the extent to which they are aware of the main dispute resolution mechanisms available; thenumber of women and men who have benefited from legal aid, the yearly attrition rate in rape, domestic
violence and sexual violence cases; and household surveys of the confidence expressed by respondents thatthey can access affordable and quality legal assistance and representation, that they would be treated fairly
and without discrimination in the resolution of a dispute, and the percentage of respondents who haveexperienced a dispute who report access to a satisfactory dispute resolution.

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