Handbook on European law relating to access to justice.
Date: 2017-04-11
Institutions: Council of Europe, European Court of Human Rights, European Union Agency for Fundamental Rights
Subjects: Court of Justice of the European Union, EU Member State, European Court of Human Rights, access to the courts, case-law (EU), equality before the law, fundamental rights, local access to the law, right to justice, rule of law, user guide

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HANDBOOK

Handbook on European law  
relating to access to justice

 
 
 
 
 
 
 
 
© European Union Agency for Fundamental Rights and Council of Europe, 2016

The manuscript for this handbook was completed in January 2016.

Updates will become available in future on the FRA website at fra.europa.eu and on the European 
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Luxembourg: Publications Office of the European Union, 2016

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ISBN 978-92-871-9860-0

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ISBN 978-92-9491-372-2 

doi:10.2811/162275 

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This handbook was drafted in English. The Council of Europe (CoE) and the European Court of Human 
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Handbook on European law  
relating to access to justice

Foreword
This handbook on  access  to  justice  in  Europe is jointly prepared by the 
European Union Agency for Fundamental Rights (FRA) and the Council of 
Europe together with the Registry of the European Court of Human Rights. It 
is the fifth in a series of handbooks on European law jointly prepared by our 
organisations. Previous handbooks focused on European non-discrimination 
law, European law relating to asylum, borders and immigration, European data 
protection law, and European law relating to the rights of the child.

Given the positive feedback to previous handbooks, we decided to cooperate 
on another highly topical subject – access to justice. Access to justice is not just 
a right in itself but also an enabling and empowering tool central to making 
other rights a reality.

This handbook summarises the key European legal principles in the area 
of access to justice. It seeks to raise awareness and improve knowledge of 
relevant legal standards set by the European Union and the Council of Europe, 
particularly through the case law of the Court of Justice of the European 
Union (CJEU) and the European Court of Human Rights (ECtHR). The handbook 
is designed to serve as a practical guide for judges, prosecutors and legal 
practitioners involved in litigation in the EU and in Council of Europe member 
states. Non-governmental organisations and other bodies that assist victims in 
accessing justice will also find this handbook useful.

We would like to thank the Human Rights Law Centre of the University of 
Nottingham, UK, for its contribution. We are also grateful to the European 
Commission for the Efficiency of Justice of the Council of Europe (CEPEJ) for 
its involvement in the early stages of preparing this handbook and to the 
European Commission’s DG Justice for providing input during drafting. Finally, 
we would like to express our gratitude to Judge Maria Berger of the Court 
of Justice of the European Union for her valuable feedback during the final 
drafting phase.

Philippe Boillat

Michael O’Flaherty

Director General of Human Rights
and Rule of Law Council of Europe

Director of the European Union 
Agency for Fundamental Rights

3

Contents

FOREWORD  .................................................................................................................... 3

PROMISING PRACTICES  ............................................................................................... 8

ABBREVIATIONS AND ACRONYMS  ............................................................................ 9

HOW TO USE THIS HANDBOOK  .................................................................................  11

1  WHAT DOES ACCESS TO JUSTICE MEAN?  ..........................................................  15
Key points  .............................................................................................................. 16

2  A FAIR AND PUBLIC HEARING BEFORE AN INDEPENDENT 

AND IMPARTIAL TRIBUNAL AND OTHER BODIES  ...........................................  23
2.1.  Accessing justice through courts  ...........................................................  25
Key points  .............................................................................................................  25
2.1.1.  Right of access to a court  ...........................................................  25
2.1.2.  Definition of ‘tribunal’ .................................................................  30
Independence and impartiality of tribunals  ......................................... 34
2.2. 
Key points  .............................................................................................................. 34
2.3.  What is a fair and public hearing?  .........................................................  40
Key points  .............................................................................................................  40
2.3.1.  A fair hearing  ...............................................................................  40
2.3.2.  A public hearing  ............................................................................ 45
2.4.  Other paths to justice  ..............................................................................  48
Key points  .............................................................................................................  48
2.4.1.  Non-judicial bodies  .....................................................................  48
2.4.2.  Alternative dispute resolution  ...................................................  50

3  LEGAL AID  .............................................................................................................. 57
Legal aid in non-criminal proceedings  .................................................  58
3.1. 
Key points  .............................................................................................................  58
3.1.1.  Scope of application  ..................................................................... 59
3.1.2.  Financial and merit tests  ............................................................. 63
3.2.  Legal aid in criminal proceedings  ..........................................................  66
Key points  .............................................................................................................  66
3.2.1.  Scope of application  ....................................................................  66
3.2.2.  Financial means test  ...................................................................  68
3.2.3.  Interests of justice test  ...............................................................  69

5

4  RIGHT TO BE ADVISED, DEFENDED AND REPRESENTED  ................................. 73

4.1.  Right to be advised, defended and represented in non-

criminal proceedings  ................................................................................ 74
Key points  .............................................................................................................. 74
4.1.1.  Scope of application  ..................................................................... 75
4.1.2.  Practical and effective legal assistance .................................... 76

4.2.  Right to be advised, defended and represented in criminal 

proceedings  ............................................................................................... 78
Key points  .............................................................................................................. 78
4.2.1. Scope of application  ....................................................................... 78
4.2.2.  Quality of legal assistance  .........................................................  83
4.2.3.  Legal assistance of one’s own choosing ..................................  84
4.2.4.  Adequate time and facilities to prepare one’s defence  ........  85
4.2.5.  Waiver  ...........................................................................................  87
4.3.  Right to self-representation  ...................................................................  89
Key points  .............................................................................................................  89

5  RIGHT TO AN EFFECTIVE REMEDY  ...................................................................... 91
5.1.  What is an effective remedy?  ................................................................  92
Key points  .............................................................................................................  92

5.1.1.  Substantive and procedural requirements of an 

5.1.2. 

effective remedy  .......................................................................... 93
Institutional requirements of an effective remedy  ...............  99
5.2.  Examples of specific remedies  .............................................................  101
Key points  ............................................................................................................  101
5.2.1.  Compensation  ............................................................................. 102
5.2.2.  Specific performance  ................................................................. 106
5.2.3.  Injunctions  ................................................................................... 107

6  LIMITATIONS ON ACCESS TO JUSTICE IN GENERAL  ......................................... 111
6.1. 
Legitimate aim and proportionality  .....................................................  113
Key points  ............................................................................................................  113
6.2.  Examples of restrictions before a final judgment or decision  .........  116
Key points  ............................................................................................................  116
6.2.1.  Court fees  ....................................................................................  117
6.2.2.  Excessive formalism ...................................................................  119
6.2.3.  Evidence barriers  ........................................................................ 122

6

6.2.4.  Limitation periods ....................................................................... 124
6.2.5.  Immunities  ................................................................................... 126
6.3.  Delay in the execution of final judgments  .......................................... 128
Key points  ............................................................................................................ 128

7  LIMITATIONS ON ACCESS TO JUSTICE: LENGTH OF PROCEEDINGS  .............. 133
7.1. 
Determining the length of proceedings  .............................................. 134
Key points  ............................................................................................................ 134
7.1.1.  Determining the length of non-criminal proceedings  .......... 136
7.1.2.  Determining the length of criminal proceedings  .................. 138
7.2. 
Criteria determining the reasonableness of the length of proceedings  .....  139
Key points  ............................................................................................................ 139
7.2.1.  Complexity of the case  .............................................................. 142
7.2.2.  Conduct of the complainant  ..................................................... 143
7.2.3.  Conduct of the domestic authorities  ....................................... 144
7.2.4.  What is at stake for the complainant  ...................................... 146
7.3.  Remedies for excessively lengthy proceedings  ................................ 147

8  ACCESS TO JUSTICE IN SELECT FOCUS AREAS  ................................................ 149
8.1.  Persons with disabilities  ........................................................................  151
Key points  ............................................................................................................  151
8.1.1.  Access to justice  ......................................................................... 152
8.1.2.  Capacity  ....................................................................................... 155
8.2.  Victims of crime  ...................................................................................... 157
Key points  ............................................................................................................ 157
8.3.  Prisoners and pre-trial detainees  ......................................................... 163
Key points  ............................................................................................................ 163
8.3.1.  Access to a court and a lawyer  ................................................ 164
8.3.2.  Right to challenge a deprivation of liberty  ............................ 166
8.3.3.  Compensation for unlawful detention  ....................................  171
8.4.  Environmental law  .................................................................................. 172
Key points  ............................................................................................................ 172
8.5.  E-justice  .................................................................................................... 177
Key points  ............................................................................................................ 177

FURTHER READING  ...................................................................................................  181

CASE LAW  ..................................................................................................................  191

INDEX  .......................................................................................................................... 199

7

 
Promising practices

Ensuring a fair trial through co-hearing  ...........................................................  41
Improving access to justice in discrimination cases  ......................................  50
Using mediation in family procedures  ..............................................................  51
Providing legal aid to vulnerable groups  ......................................................... 59
Offering online legal aid to secure access to justice  .....................................  66
Offering a variety of forms of legal advice ...................................................... 75
Assisting self-represented litigants  .................................................................  89
Reducing costs and simplifying procedures  ..................................................  119
Promoting access to justice by reducing excessive formalism  ...................  121
Enforcing judgments efficiently  .......................................................................  131
Expediting family cases  .................................................................................... 135
Reducing the length of proceedings by listening to court users  ................ 145
Speeding up proceedings  ................................................................................. 146
Guiding the police in assisting people with disabilities  ............................... 152
Supporting victims with learning disabilities  ................................................ 160
Promoting access to justice for prisoners with learning disabilities  .......... 165
Promoting environmental democracy in practice  ........................................  174
Visualising sentencing: online tool to facilitate access to justice ............... 180

8

Abbreviations and acronyms
Alternative dispute resolution
ADR 

CCJE 

Consultative Council of European Judges

CEPEJ 

European Commission for the Efficiency of Justice

CETS 

CJEU 

Council of Europe Treaty Series

Court of Justice of the European Union (prior to December 2009, 
European Court of Justice, ECJ)

CoE 

Council of Europe

CRPD 

Convention on the Rights of Persons with Disabilities

EC 

European Community

ECHR 

European Convention on Human Rights

e-CODEX 

e-Justice Communication via Online Data Exchange

ECtHR 

European Court of Human Rights

EEO 

EIA 

European Enforcement Order

Environmental Impact Directive

e-SENS 

Electronic Simple European Networked Services

EU 

FRA 

European Union

European Union Agency for Fundamental Rights

ICCPR 

International Covenant on Civil and Political Rights

NGO 

NHRI 

ODR 

TEU 

Non-governmental organisation

National human rights institution

Online dispute resolution

Treaty on European Union

TFEU 

Treaty on the Functioning of the European Union

UDHR 

Universal Declaration of Human Rights

UN 

United Nations

9

How to use this handbook
This handbook provides an overview of key aspects of access to justice in 
Europe, with specific reference to relevant rights provided in the Council of 
Europe’s European Convention on Human Rights (ECHR), as interpreted by 
the European Court of Human Rights (ECtHR), and the Charter of Fundamental 
Rights of the European Union, as interpreted by the Court of Justice of the 
European Union (CJEU).

Access to justice is not just a right in itself but also empowers individuals to 
enforce other rights. This handbook is broad in scope, covering criminal and 
civil law. Existing FRA-ECtHR handbooks on European law relating to asylum, 
borders and immigration and to the rights of the child contain analyses on 
access to justice by asylum-seekers and children; therefore, these areas are 
not covered in this handbook.

The handbook is designed to assist legal practitioners who do not specialise in 
access to justice matters, serving as an introduction to key issues involved. It is 
intended for lawyers, judges, and other legal practitioners, as well as for per-
sons who work with entities that deal with the administration of and access to 
justice, including non-governmental organisations (NGOs) involved in litigation. 
The handbook can also be used for legal research or public advocacy purposes. 
It is designed to permit practitioners to refer directly to specific sections/topics 
as required; it is not necessary to read the handbook as a whole. The Further 
reading Section lists specialised material that may be of interest to those seek-
ing additional information on a particular issue.

The relevant laws of the Council of Europe (CoE) and the European Union (EU) 
are presented as they apply to each topic. There is, however, substantial 
overlap between the access to justice rights set out in the ECHR and in the 
EU Charter of Fundamental Rights. The Charter explicitly recognises that, where 
Charter rights correspond to rights in the ECHR, they are to be given the same 
scope and meaning. Much of the ECtHR’s case law can therefore be considered 
relevant when looking at the scope and application of Charter rights. EU law 
should be presumed to be consistent with ECtHR case law unless explicitly 
stated otherwise. CJEU case law is referred to where relevant jurisprudence is 
available, providing alternative sources for access to justice rights and, more 
importantly, demonstrating how the two legal orders work in parallel. Many of 
the cited CJEU judgments were delivered in the course of a preliminary ruling 

11

procedure initiatied by national courts to obtain the CJEU’s interpretation of 
relevant EU law provisions to resolve a dispute pending consideration at the 
national level. Under the preliminary ruling procedure, the role of the CJEU is to 
give an interpretation of EU law or to rule on its validity. It is then the task of 
the national court to apply that law in conformity with the CJEU interpretation 
to the factual situation underlying the main domestic proceedings. To avoid 
confusion, this handbook refers to the European Court of Justice (ECJ) as the 
Court of Justice of the European Union (CJEU), even for decisions issued before 
December 2009.

Each chapter starts with a table outlining the issues addressed in that chap-
ter. The table also specifies the applicable legal provisions and lists relevant 
CJEU and ECtHR case law. This should help users quickly find the key informa-
tion relating to their situation. Practitioners subject only to CoE law can limit 
their review to CoE-related material, while those in EU Members States need to 
consult both columns, as these states are bound by both legal orders.

In addition, key points are presented at the beginning of each section to pro-
vide a quick and accessible overview.

The key CoE law is presented in boxes highlighting select ECtHR cases as well 
as in references in the main text. The cases provide recent examples of how 
the ECtHR applies the principles it has established in its vast jurisprudence. 
Council of Europe recommendations and reports are also referenced where rel-
evant, even if they do not establish legally binding obligations.

EU law is presented both in boxes highlighting CJEU cases and by way of refer-
ences to relevant EU primary law and legislative measures, such as directives 
and regulations, in the main text. CJEU cases have similarly been selected to 
illustrate recent applications of the law. Footnotes lead practitioners to further 
examples. In addition, references to legally non-binding EU instruments are 
made when relevant to the key points raised.

Although the handbook focuses on law, it features boxes highlighting ‘promising 
practices’ in Council of Europe and EU member states. Justice systems can vary 
widely in these states, but these promising practices include initiatives that may 
promote access to justice in the short or long term. The adequacy and effective-
ness of these initiatives often remain to be tested – for a full understanding of 
their value, further research of relevant national sources would be needed.

12

Handbook on European law relating to access to justiceHow to use this handbook

This handbook focuses on criminal and civil law. While administrative law is 
explored in relation to environmental law (see Chapter 8), this generally falls 
outside of its scope. The handbook concerns application of the law at national 
level, so does not address issues of standing and admissibility before the 
ECtHR and CJEU, except where this aids the understanding of individual rights. 
Similarly, international instruments and case law, and national case law, are 
only referenced when these help understand the points made.

The handbook begins with a brief description of the legal meaning of ‘access 
to justice’ and the role of the two legal systems as established by CoE and 
EU law (Chapter 1). It contains seven substantive chapters covering the follow-
ing issues:

•  a fair and public hearing before an independent and impartial tribunal 
(including the right to access courts, the scope of the right to a fair and 
public hearing, and alternative paths to justice);

• 

• 

• 

• 

• 

legal aid (including the ‘financial and merits’ tests and the ‘interests of 
justice’ test for criminal proceedings);

the right to be advised, defended and represented (including the quality of 
legal assistance, the right to adequate time and facilities to prepare one’s 
defence, and the right to waive representation);

the right to an effective remedy (including its substantive and institutional 
requirements, as well as examples of available remedies);

limitations on access to justice in general (including the nature of permissi-
ble restrictions and examples of limitations);

limitations on access to justice: the length of proceedings (including criteria 
for determining the length’s reasonableness);

•  access to justice in select focus areas (regarding which specific principles 

have been developed, including persons with disabilities, victims of crime, 
prisoners and pre-trial detainees and environmental law and e-justice).

13

1 

What does access 
to justice mean?

EU

Issues covered

CoE

Access to justice

Charter of Fundamental 
Rights, Article 47 (right to an 
effective remedy)
Charter of Fundamental 
Rights, Article 51 (field of 
application)
Charter of Fundamental Rights, 
Article 52 (3) (scope of interpre-
tation of rights and principles)
Treaty on European Union (TEU), 
Article 4 (3)
TEU, Article 19

Scope of 
application

ECHR, Article 6  
(right to a fair trial)
ECHR, Article 13  
(right to an effective remedy)
ECHR, Article 35  
(admissibility criteria)
ECHR, Article 46 (binding force 
and execution of judgments)

This chapter introduces the term ‘access to justice’ with reference to the key 
European human rights standards. It presents the European regional systems 
that protect individual rights and addresses the emphasis placed on ensuring 
the protection of rights at national level. The chapter also summarises the 
relationship between access to justice rights in the European Union (EU) and 
the Council of Europe (CoE), and the Figure below outlines the key differences.

15

Key points

•  According  to  international  and  European  human  rights  law,  the  notion  of  access  to 
justice obliges states to guarantee each individual’s right to go to court – or, in some 
circumstances, an alternative dispute resolution body – to obtain a remedy if it is found 
that the individual’s rights have been violated. It is thus also an enabling right that 
helps individuals enforce other rights.

•  Access to justice encompasses a number of core human rights, such as the right to 
a fair trial under Article 6 of the ECHR and Article 47 of the EU Charter of Fundamental 
Rights, and the right to an effective remedy under Article 13 of the ECHR and Article 47 
of the Charter.

•  Access to justice rights in the EU Charter of Fundamental Rights may correspond to 
those contained in the ECHR. ECtHR case law is therefore important for interpreting 
Charter rights.

•  Although  different  systems  govern  enforcement  of  the  ECHR  and  the  EU  Charter  of 
Fundamental  Rights,  both  emphasise  that  the  rights  to  an  effective  remedy  and  to 
a fair trial should primarily be enforced at national level.

Access to justice enables individuals to protect themselves against infringements 
of their rights, to remedy civil wrongs, to hold executive power accountable 
and to defend themselves in criminal proceedings. It is an important element 
of the rule of law1 and cuts across civil, criminal and administrative law. Access 
to justice is both a process and a goal, and is crucial for individuals seeking to 
benefit from other procedural and substantive rights.

At the international level, the UN Human Rights Committee has, since its estab-
lishment, led the way among UN treaty bodies in interpreting concepts relating 
to access to justice.2 Access to justice is also safeguarded in UN instruments, 
such as the 1998 Aarhus Convention on Access to Information, Public Participa-
tion in Decision-Making and Access to Justice in Environmental Matters and the 
2006 Convention on the Rights of Persons with Disabilities.

At the EU policy level, access to justice in EU Member States – particularly the 
efficiency and quality of justice systems, and the independence of the judi-
ciary within the EU – is regularly assessed through the so-called EU Justice 

1 

Council of Europe (2015), Factsheet on guaranteeing equal access of women to justice, 
Strasbourg, Council of Europe.

2 

United Nations (UN), Committee on Human Rights, General Comment No. 32 (2007).

16

Handbook on European law relating to access to justiceWhat does access to justice mean?

Scoreboard.3 This draws mainly on data from CEPEJ, a Council of Europe expert 
body, and forms part of the European Commission’s Annual Growth Survey; the 
latter informs the deliberations of the EU’s annual policy cycle – the European 
Semester – which has a significant impact on national finances.4

In European human rights law, the notion of access to justice is enshrined in 
Articles 6 and 13 of the European Convention on Human Rights (ECHR) and 
Article 47 of the EU Charter of Fundamental Rights, which guarantee the right 
to a fair trial and to an effective remedy, as interpreted by the European Court 
of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU), 
respectively. As noted above, these rights are also provided for in international 
instruments,  such  as  Articles  2  (3)  and  14  of  the  United  Nations  (UN) 
International Covenant on Civil and Political Rights (ICCPR)5 and Articles 8 and 
10 of the UN Universal Declaration of Human Rights (UDHR).6 Core elements of 
these rights include effective access to a dispute resolution body, the right to 
fair proceedings and the timely resolution of disputes, the right to adequate 
redress, as well as the general application of the principles of efficiency and 
effectiveness to the delivery of justice.7

The rights protected in the ECHR and the EU Charter of Fundamental Rights 
overlap. Charter rights that correspond to ECHR rights are given the same 
meaning and scope as those laid down in the ECHR, in accordance with Article 53 
of the Charter. The Explanations to the Charter8 – which serve as an interpretative 
tool to help understand its content, but are not legally binding – provide 
additional guidance on this point. This overlap means that ECtHR case law is 
frequently important for interpreting rights under the EU Charter of Fundamental 
Rights. However, as outlined below, the legal systems of the ECtHR and CJEU are 
different, which may affect the protection of rights at the national level.

3 

4 

5 

6 

7 

8 

European Commission (2015), The 2015 EU Justice Scoreboard, COM(2015) 116 final, Brussels, 
9 March 2015.

European Union Agency for Fundamental Rights (FRA) (2015), Fundamental rights: challenges 
and achievements in 2014 – FRA Annual report, Luxembourg, Publications Office, Focus chapter, 
p. 14.

UN, General Assembly (GA) (1966), International Covenant on Civil and Political Rights (ICCPR), 
16 December 1966.

UN, GA (1948), Universal Declaration of Human Rights (UNDHR), 10 December 1948.

FRA (2011), Access to justice in Europe: an overview of challenges and opportunities, Luxem-
bourg, Publications Office, p. 9.

EU (2012), Charter of Fundamental Rights of the European Union, Art. 52 (3), OJ 2012 C 326. See 
also the Explanations relating to the Charter of Fundamental Rights, OJ 2007 C 303/17.

17

European Convention on Human Rights

The CoE has 47 member states; all are parties to the ECHR, which entered into 
force in 1953.9 Under Article 1 of the ECHR, States Parties are legally bound 
to secure ECHR rights to persons within their jurisdiction. States Parties must 
ensure that their law and practice is in line with the ECHR. They are primarily 
responsible for implementing and enforcing the rights and freedoms guaran-
teed by the ECHR, although they may be allowed a ‘margin of appreciation’ to 
permit interpretations to be consistent with their own legal systems.

The ECtHR’s role is supervisory: it ensures that States Parties observe their 
obligations by addressing complaints from individuals about violations of the 
ECHR.10 Under Article 35 of the ECHR, individuals have to show that they have 
exhausted all domestic remedies before the ECtHR will consider their case.11 
This reflects the principle of subsidiarity, which means that national courts 
are primarily responsible for guaranteeing and protecting human rights at 
a national level.12 The relevant access-to-justice standards that states must 
follow are set out in subsequent chapters.

ECHR rights are not always limited to the territories of States Parties; in excep-
tional circumstances, they can apply extraterritorially – specifically, to situa-
tions abroad in which state officials exercise “effective control and authority” 
over individuals.13

Under Article 46 of the ECHR, States Parties involved in proceedings before the 
ECtHR must abide by its final judgment.

EU Charter of Fundamental Rights

The EU is a unique legal order. EU law is an integral part of the legal systems of 
Member States.14 It includes primary law, which is found in the treaties as well 

9 

10 

11 

12 

13 

14 

Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, 
CETS No. 5, 1950. See also Council of Europe, European Social Charter, CETS No. 35, 18 October 1961, 
which monitors compliance with social and economic rights; and Council of Europe, European Social 
Charter (revised), CETS No. 163, 3 May 1996.

States Parties may also bring claims against each other.

ECtHR, Er and Others v. Turkey, No. 23016/04, 31 July 2012, para. 57.

ECtHR, Scordino v. Italy (No. 1) [GC], No. 36813/97, 29 March 2006, para. 140.

ECtHR, Al-Skeini and Others v. the United Kingdom [GC], No. 55721/07, 7 July 2011, paras. 133–137.

CJEU, C-6/64, Flaminio Costa v. E.N.E.L., 15 July 1964.

18

Handbook on European law relating to access to justiceWhat does access to justice mean?

as the EU Charter of Fundamental Rights; secondary law, such as regulations, 
directives and decisions; as well as non-binding legal acts, such as opinions 
and recommendations.15

The implementation and enforcement of EU law takes place primarily at 
national level. Article 4 (3) of the Treaty on European Union (TEU) requires 
EU Member States to take appropriate measures to ensure the fulfilment of 
obligations arising from EU law. This is the principle of sincere cooperation. 
Additionally, Article 19 of the TEU requires Member States to provide sufficient 
remedies that ensure effective legal protection in the fields covered by EU law.

Thus, national courts are the primary guarantors of EU law, but to ensure its 
consistent application they can ask the CJEU to rule on issues of interpretation 
through the preliminary ruling procedure.16 This creates a dialogue between 
national courts and the CJEU. The CJEU is the guardian of the EU’s unique legal 
order, which includes clear fundamental rights obligations. Individuals may be 
able to pursue annulment actions to review the legality of EU law (including 
issues of fundamental rights), but the conditions on filing such applications are 
restrictive. Individuals generally have to show “direct and individual concern”.17 
According to the CJEU, this system for judicial review of acts by EU institutions 
is complete.18

Consequently, under EU law it is also important for individuals to be able to 
enforce their rights in national courts. Originally, the treaties of the European 
Communities did not contain any references to fundamental rights. Instead, 
fundamental rights were identified by the CJEU in its case law as general 
principles of EU law resulting from the ECHR and the common constitutional 
traditions of Member States.19 The CJEU has applied these principles when 
reviewing the lawfulness of EU legislative and administrative measures, as well 
as the compatibility of measures adopted by Member States when implementing 
EU law. The case law concerning these general principles is relevant when 
considering the right to seek justice, and may be useful for practitioners.

15 

16 

17 

18 

19 

Treaty on the Functioning of the EU (TFEU), Art. 288, OJ 2012 C 326.

Ibid. Art. 267. 

TFEU, Art. 263 (4). For an example illustrating the complexity of this area of law, see CJEU, 
C-583/11 P, Inuit Tapiriit Kanatami and others v. European Parliament and Council of the 
European Union, 3 October 2013.

Ibid., particularly para. 92.

TEU, Art. 6 (3) (formerly Art. 6 (2)).

19

Fundamental  rights  and  freedoms  are  now  set  out  in  the  EU  Charter  of 
Fundamental Rights, which became legally binding as EU primary law in 
December 2009.20 The Charter includes economic, social and cultural rights. In 
some instances, the Charter refers to ‘principles’ instead of ‘rights’ (for example, 
the principle of equality between women and men in Article 23). According 
to the EU Charter of Fundamental Rights, when provisions are classified as 
‘principles’, national courts use them only to interpret and rule on the legality of 
Member State acts implementing EU law.21

Under Article 51, the EU Charter of Fundamental Rights applies to EU institutions 
and  bodies  without  restriction,  and  to  Member  States  “when  they  are 
implementing Union law”.22 The Explanations relating to the EU Charter of 
Fundamental  Rights  state  that  its  obligations  apply  only  when  Member 
States are acting “within the scope of EU law”. The CJEU has confirmed that 
“implementing” and “in the scope of” carry the same meaning.23 This covers 
situations where Member States are, for instance, implementing EU directives 
and regulations.24 However, all 28 EU Member States are also States Parties to 
the ECHR. This means that, even if the EU Charter of Fundamental Rights does 
not apply, the ECHR may. Additionally, ongoing negotiations about the European 
Union’s planned accession to the ECHR could affect the access to justice 
landscape.25

Relationship between access to justice rights under CoE and EU law

The Figure summarises the bases for access to justice rights in the EU and CoE. 
It highlights the two key components of access to justice – the right to a fair 
trial and the right to an effective remedy – and compares the protection the 
EU Charter of Fundamental Rights and the ECHR offer. It will be referred to 
throughout the handbook.

20  Charter of Fundamental Rights of the European Union, OJ 2012 C326. See TEU, Art. 6 (1).

21 

See Art. 52 (5) of the EU Charter of Fundamental Rights, and (limited) guidance provided in the 
Explanations relating to the Charter of Fundamental Rights. See also CJEU, C-176/12, Association 
de médiation sociale v. Union locale des syndicats CGT and Others, 15 January 2014, paras. 45–49. 
Compare with CJEU, C-555/07, Kücükdeveci v. Swedex Gmbh & Co. KG, 19 January 2010.

22  Charter of Fundamental Rights of the European Union, Art. 51.

23  CJEU, C-617/10, Åklagaren v. Fransson, 7 May 2013, paras. 17–21.

24  CJEU, C-206/13, Cruciano Siragusa v. Regione Sicilia - Soprintendenza Beni Culturali e Ambientali 

di Palermo, 6 March 2014, paras. 24–25.

25  See the CJEU’s opinion on the proposed accession to the ECHR, Opinion 2/13 of the Court, 

18 December 2014.

20

Handbook on European law relating to access to justiceWhat does access to justice mean?

Figure: Access to justice rights under EU and CoE law

Access to justice

Right to a fair trial

Right to an effective remedy

Article 6 of the ECHR applies 
to criminal charges,
disputes concerning civil
rights, and obligations
recognised in domestic law.

Article 47 of the EU Charter
of Fundamental Rights
applies to the rights
and freedoms guaranteed
by EU law. It applies only
when Member States are
implementing EU law.

Article 13 of the ECHR
applies to all ECHR rights. 
It requires provision of 
a remedy before 
a national authority.

Article 47 of the EU Charter
of Fundamental Rights
applies to the rights
and freedoms guaranteed
by EU law. It applies only
when Member States are
implementing EU law.
It requires provision of
a remedy before a tribunal.

As the Figure indicates, Article 6 of the ECHR has limited scope and only applies 
to cases concerning criminal charges, civil rights and obligations recognised 
in domestic law (see Section 2.1). Article 47 of the EU Charter of Fundamental 
Rights is not as confined and applies to all rights and freedoms recognised by 
EU law, which include certain additional economic, social and cultural rights. 
However, there is an important difference in terms of applicability. Article 6 
of the ECHR applies to all situations falling within the definition of “criminal 
charges or civil rights and obligations”. Article 47 of the Charter only applies 
when Member States are applying EU law, such as when implementing the Anti-
Trafficking Directive. It thus provides a less comprehensive system of protection.

Article  13  of  the  ECHR  sets  out  the  right  to  an  effective  remedy  before 
a national authority for arguable violations of ECHR rights. The right to an 
effective remedy under Article 47 of the EU Charter of Fundamental Rights 
applies to all rights and freedoms guaranteed by EU law: it is not limited 
to violations of the rights included in the Charter. Article 47 also explicitly 

21

guarantees access to a remedy before a ‘tribunal’, thus offering more extensive 
protection. It is important to note that, for EU Member States, if the EU Charter 
of Fundamental Rights does not apply, the ECHR may apply, as all 28 Member 
States are also States Parties to the ECHR.

Although the systems are distinct, both CoE and EU law guarantee the right 
to an effective remedy and the right to a fair trial, to be primarily enforced at 
national level, within the two instruments’ respective scopes of application, 
and in accordance with the relevant rules and conditions set out by the 
CJEU and the ECtHR. Many rights in the EU Charter of Fundamental Rights are 
described similarly to rights in the ECHR. Article 52 (3) of the Charter confirms 
that, where Charter rights correspond to ECHR rights, the meaning and scope 
of those rights are the same, although more extensive protection can be 
provided.26 This means that ECtHR case law is relevant for interpreting Charter 
rights where these rights correspond.

26 

Explanations relating to the Charter of Fundamental Rights, OJ 2007 C303/17.

22

Handbook on European law relating to access to justice2 

A fair and public hearing 
before an independent 
and impartial tribunal 
and other bodies

EU

Issues covered

CoE

Access to courts ECHR, Article 6 (1)

ECHR, Protocol 7
ECtHR, Golder v. the United 
Kingdom, No. 4451/70, 1975

Definition of 
a tribunal

ECtHR, Julius Kloiber Schlachthof 
GmbH and Others v. Austria, 
Nos. 21565/07 and others, 2013

Hearing before a tribunal

Charter of Fundamental 
Rights, Article 47 (right to an 
effective remedy)
CJEU, Joined cases C-128/09 to 
C-131/09, C-134/09 and C-135/09, 
Antoine Boxus and Others  
v. région wallone, 2011

CJEU, C-363/11, Epitropos tou 
Elegktikou Synedriou sto 
Ypourgeio Politismou kai 
Tourismou v. Ypourgeio Politismou 
kai Tourismou - Ypiresia 
Dimosionomikou Elenchou, 2012
CJEU, C-394/11, Valeri Hariev 
Belov v. CHEZ Elektro Balgaria 
AD and others (Bulgaria and 
the European Commission 
intervening), 2013

Independence and impartiality of tribunals

Charter of Fundamental 
Rights, Article 47
CJEU, C-506/04, Graham J. Wilson 
v. Ordre des avocats du barreau 
de Luxembourg, 2006
CJEU, Joined cases C-341/06 and 
C-342/06, Chronopost SA and La 
Poste v. Union française de l’ex-
press (UFEX) and Others, 2008

Independence 
and impartiality

ECHR, Article 6 (1)
ECtHR, Maktouf and Damjanović 
v. Bosnia and Herzegovina, 
Nos. 2312/08 and 34179/08, 
2013
ECtHR, Ibrahim Gürkan v. Turkey, 
No. 10987/10, 2012

23

EU

Issues covered

CoE

A fair and public hearing before a tribunal

A fair hearing

ECHR, Article 6 (1)
ECtHR, Užukauskas v. Lithuania, 
No. 16965/04, 2010

A public hearing ECHR, Article 6 (1)

ECtHR, Khrabrova v. Russia, 
No. 18498/04, 2012

Non-judicial 
bodies

Alternative  
dispute 
resolution

ECtHR, Suda v. the Czech Republic,  
No. 1643/06, 2010
CoE Convention on Preventing 
and Combating Violence against 
Women and Domestic Violence 
(Istanbul Convention)

Charter of Fundamental 
Rights, Article 47
Directive on the right to infor-
mation in criminal proceedings 
(2012/13/EU)
Directive on the right to 
interpretation and translation 
(2010/64/EU)
Directive on the right of access 
to a lawyer (2013/48/EU)
Charter of Fundamental 
Rights, Article 47

Other paths to justice

CJEU, Joined cases C-317/08, 
C-318/08, C-319/08 and 
C-320/08, Rosalba Alassini and 
Others v. Telecom Italia SpA, 
2010
Mediation Directive 
(2008/52/EC)
Directive on consumer alter-
native dispute resolution 
(2013/11/EU)
Regulation on consumer 
online dispute resolution 
(No. 524/2013)
Victims’ Rights Directive 
(2012/29/EU)

This chapter outlines the right of access to a court (referred to in both CoE law 
and EU law as a ‘tribunal’), which arises from the right to a fair trial. It also 
explores the definition of the term ‘tribunal’. Relevant requirements, including 
key aspects of the right to a fair and public hearing before an independent 
and impartial tribunal, are discussed. Non-judicial pathways to justice are also 
considered, including non-judicial bodies and alternative dispute resolution 
methods.

24

Handbook on European law relating to access to justiceA fair and public hearing before an independent and impartial tribunal and other bodies

2.1.  Accessing justice through courts

Key points

•  Article 6 of the ECHR and Article 47 of the EU Charter of Fundamental Rights guarantee 

the right to a fair trial.

•  The  ECtHR  has  held  that  the  right  to  a  fair  trial  encompasses  the  right  of  access  to 
a court. Article 6 applies to criminal charges, disputes concerning civil rights and obli-
gations recognised by domestic law.

•  Article  47  of  the  Charter  includes  the  right  of  access  to  courts.  It  is  not  confined  to 
criminal charges and civil rights and obligations; the Charter, however, applies domes-
tically only when Member States are implementing (or derogating from) EU law.

•  Both CoE and EU law use the term ‘tribunal’ rather than ‘court’, but these terms are 
equivalent. A tribunal must possess judicial functions, be capable of issuing binding 
decisions and meet other criteria developed by the ECtHR and CJEU, including being 
independent and impartial. The ECtHR and the CJEU have established consistent prin-
ciples for determining if a body qualifies as a tribunal.

•  The right of access to a court is not absolute. It can be limited – but restrictions may not 

impair the right’s essence.

2.1.1.  Right of access to a court

Under both CoE and EU law, the right of access to a court means that courts 
should be accessible. Accessibility can involve the availability of courts with 
relevant jurisdiction, availability of interpretation, access to information and 
the accessibility of court judgments. It may also involve the geographical 
remoteness of a court, if its location prevents applicants from participating 
effectively in proceedings27 (also see Section 8.1 on persons with disabilities).

27  CJEU, C-567/13, Nóra Baczó and János István Vizsnyiczai v. Raiffeisen Bank Zrt, 12 February 2015, 

paras. 56-57. See also CJEU, C-413/12, Asociación de Consumidores Independientes de Castilla 
y León v. Anuntis Segundamano España SL, 5 December 2013, para. 41. For further information, 
see also Council of Europe, European Commission for the Efficiency of Justice (CEPEJ) (2013), 
Guidelines on the Creation of Judicial Maps to Support Access to Justice within a Quality Judicial 
System, 21 June 2013; Council of Europe, CEPEJ (2014), Guidelines on the organisation and 
accessibility of court premises, 12 December 2014; Council of Europe, CEPEJ (2008), Checklist for 
promoting the quality of justice and the court, 3 July 2008, e.g. at pp. 19-25, including interpre-
tation, access to information, accessibility of court judgments.

25

The right of access to a court is an important element of access to justice given 
that courts provide protection against unlawful practices and uphold the rule 
of law.28 Under CoE law, Article 6 (1) of the ECHR requires that: “In the determi-
nation of his civil rights and obligations or of any criminal charge against him, 
everyone is entitled to a fair and public hearing within a reasonable time by 
an independent and impartial tribunal established by law”. Access to court is 
implicit in the right to a fair hearing because it suggests that disputes must be 
decided on by courts. States are not compelled to establish specific types of 
courts – such as, for example, appellate courts. However, if a State Party sets 
up such courts, Article 6 will apply to them.29

Example: In Golder v. the United Kingdom,30 the applicant was a prisoner 
who wanted to bring libel proceedings against a prison officer who 
accused him of taking part in a prison riot. He was refused permission to 
consult a lawyer, which he claimed hindered him in bringing an action in 
the courts.

The ECtHR held that Article 6 sets out the procedural guarantees available 
to parties in a litigation. This would be meaningless without access to 
court. Thus, the right of access to a court is implied in the right to a fair trial 
under Article 6 (1) of the ECHR.

Under the ECHR, rights must be “practical and effective” rather than “theoreti-
cal and illusory”.31 For the right of access to a court to be effective, states may 
have to provide legal aid, translation or other practical support to enable indi-
viduals to access court proceedings (see Chapter 3 on legal aid and Chapter 4 
on the right to be advised, defended and represented).

The right of access to a court under Article 6 of the ECHR is limited to disputes 
concerning criminal charges against the applicant or civil rights and obligations. 

28  ECtHR, Běleš and Others v. the Czech Republic, No. 47273/99, 12 November 2002.

29  ECtHR, Khalfaoui v. France, No. 34791/97, 14 December 1999, para. 37.

30 

ECtHR, Golder v. the United Kingdom, No. 4451/70, 21 February 1975. For the right of access 
to a court in criminal cases, see for example ECtHR, Janosevic v. Sweden, No. 34619/97, 
23 July 2002, para. 80.

31 

ECtHR, Artico v. Italy, No. 6694/74, 13 May 1980, para. 33.

26

Handbook on European law relating to access to justiceA fair and public hearing before an independent and impartial tribunal and other bodies

Both terms are given an autonomous meaning independent of the categorisa-
tions national legal systems employ.32

When determining whether a ‘criminal charge’ exists, the following criteria 
must be considered:

• 

the classification of the offence under the domestic legal system;

• 

the nature of the offence;

• 

the potential nature and severity of the penalty.33

The criteria are alternative and not cumulative.34 If, however, it is not possible 
to reach a clear conclusion on a single criterion, a cumulative approach may be 
necessary.35 States may distinguish between criminal and regulatory or disci-
plinary law, but the distinction must not undermine the object and purpose of 
Article 6.36 Criminal penalties are usually of a punitive character.37 A penalty’s 
lack of seriousness does, nevertheless, not deprive an offence of its “inherent-
ly criminal character”.38 The relevant criteria must be applied before a decision 
is taken.

In non-criminal proceedings, for Article 6 of the ECHR to apply, there must be 
a dispute regarding a civil right or obligation recognised in domestic law, irre-
spective of whether it is protected by the ECHR. The dispute must be genu-
ine and serious and the outcome of the proceedings must be directly decisive 
for the right.39 The ECtHR has identified various proceedings as being out-
side the scope of civil rights and obligations, including non-criminal taxation 

32 

33 

34 

35 

36 

37 

38 

39 

For criminal charges, see ECtHR, Engel and Others v. the Netherlands, Nos. 5100/71, 5101/71, 
5102/71, 5354/72 and 5370/72, 8 June 1976, para. 81. In relation to civil rights and obligations, 
see ECtHR, König v. Germany, No. 6232/73, 28 June 1978, paras. 88–89.

ECtHR, Engel and Others v. the Netherlands, Nos. 5100/71, 5101/71, 5102/71, 5354/72 and 
5370/72, 8 June 1976, paras. 81–85.

ECtHR, Ziliberberg v. Moldova, No. 61821/00, 1 February 2005, para. 31.

ECtHR, Ezeh and Connors v. the United Kingdom [GC], Nos. 39665/98 and 40086/98, 
9 October 2003, para. 86.

ECtHR, Weber v. Switzerland, No. 11034/84, 22 May 1990, para. 30.

ECtHR, Öztürk v. Germany, No. 8544/79, 21 February 1984, para. 53.

Ibid., para. 54.

ECtHR, Boulois v. Luxembourg [GC], No. 37575/04, 3 April 2012, para. 90.

27

proceedings,40 decisions regarding the entry, stay and deportation of aliens,41 
and proceedings relating to the right to stand for election.42

The right of access to a court is not absolute. It can be limited. For example, 
imposing reasonable time limits can promote the proper administration of 
justice. Additionally, a requirement to pay court fees may eliminate frivolous 
claims or may be justified for budgetary reasons.43 However, restrictions must 
not impair “the very essence of the right”.44 For example, staying proceedings 
for a significant time may infringe the right of access to court because it 
prevents an individual from obtaining a “determination” of the dispute.45 
Permissible restrictions are further discussed in Chapter 6.

Under EU law, Article 47 of the EU Charter of Fundamental Rights states: 
“Everyone  is  entitled  to  a  fair  and  public  hearing  within  a  reasonable 
time by an independent and impartial tribunal previously established by 
law. Everyone shall have the possibility of being advised, defended and 
represented”.46 Article 47 applies to all rights and freedoms arising from 
EU law; the Explanations to the Charter confirm that it corresponds to the 
rights in Article 6 (1) of the ECHR, without Article 6’s limitation on civil rights 
and obligations.47 Article 47 therefore secures, as a minimum, the protection 
offered by Article 6 of the ECHR, in respect to all rights and freedoms arising 
from EU law.48 This explicit connection means that the cases mentioned under 
CoE law will be relevant in EU law unless otherwise stated. However, as noted 
in Chapter 1, the EU Charter of Fundamental Rights applies domestically only 
when Member States are implementing (or derogating from) EU law.49

40  ECtHR, Ferrazzini v. Italy [GC], No. 44759/98, 12 July 2001, para. 29.

41 

42 

43 

44 

45 

ECtHR, Maaouia v. France [GC], No. 39652/98, 5 October 2000, para. 40.

ECtHR, Pierre-Bloch v. France, No. 24194/94, 21 October 1997, paras. 49–52.

ECtHR, Ashingdane v. the United Kingdom, No. 8225/78, 28 May 1985, para. 57. 

Ibid.

ECtHR, Kutic v. Croatia, No. 48778/99, 1 March 2002, para. 25.

46  Art. 47 of the EU Charter of Fundamental Rights is also relevant to the judicial protection of-

fered by the CJEU itself.

47  CJEU, C-619/10, Trade Agency Ltd v. Seramico Investments Ltd, 6 September 2012, para. 52.

48  CJEU, C-199/11, Europese Gemeenschap v. Otis NV and Others, 6 November 2012, para. 47.

49  On the limits of Art. 6, see for example, ECtHR, Maaouia v. France [GC], No. 39652/98, 5 Octo-

ber 2000. On the scope of Art. 47, see CJEU, C-370/12, Thomas Pringle v. Government of Ireland, 
Ireland and the Attorney General, 27 November 2012, paras. 178–182.

28

Handbook on European law relating to access to justiceA fair and public hearing before an independent and impartial tribunal and other bodies

Article 47 of the EU Charter of Fundamental Rights embodies the EU legal prin-
ciple that Member States must ensure effective judicial protection of an in-
dividual’s rights arising from Union law (including Charter rights). This means 
that the right of access to a court applies whenever rights and freedoms guar-
anteed by EU law are involved. It is for EU Member States to establish a system 
of legal remedies and procedures that ensure respect for rights under EU law.50 
National legislation must not undermine the effective judicial protection of 
these rights.51

Example: In Boxus v. Région wallonne,52 a Belgian court raised a question 
concerning the Environmental Impact Assessment Directive after a pro-
ject was authorised by a legislative act (decree) of the Walloon parliament 
against which, under national law, no substantial review procedure was 
available.

The CJEU confirmed that the power to exercise review over the legislative 
act was necessary to ensure the effective judicial protection of individual 
procedural rights, even if this was not envisaged by national law.

As with CoE law, the right of access to a court under EU law is not absolute. It 
can be limited by national procedures to ensure the efficient administration of 
justice. Permissible restrictions are discussed further in Chapter 6.

To facilitate access to courts in cross-border scenarios, several EU secondary 
law instruments of private international law nature have been adopted to help 
determine which Member State’s courts are competent to decide a civil law 
dispute. These instruments deal with jurisdiction, the applicable law, and rec-
ognition and enforcement in the area of civil law; examples include the regu-
lations addressing jurisdiction and regulation and enforcement of judgments in 

50  CJEU, C-432/05, Unibet (London) Ltd and Unibet (International) Ltd v. Justitiekanslern, 

13 March 2007, paras. 37–42.

51 

CJEU, C-279/09, DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v. Bundesrepub-
lik Deutschland, 22 December 2010, para. 59.

52  CJEU, Joined Cases, C-128/09 to C-131/09, C-134/09 and C-135/09, Antoine Boxus, Willy Roua, 
Guido Durlet and Others, Paul Fastrez, Henriette Fastrez, Philippe Daras, Association des rive-
rains et habitants des communes proches de l’aéroport BSCA (Brussels South Charleroi Airport) 
(ARACh), Bernard Page, Léon L’Hoir, Nadine Dartois v. Région wallonne, 18 October 2011, 
paras. 49–57.

29

civil and commercial matters, in matrimonial matters and matters of parental 
responsibility, and in matters of succession (see also Section 6.3).53

2.1.2.  Definition of ‘tribunal’

Both CoE and EU law use the term tribunal rather than court. The word ‘tribunal’ 
is given an autonomous meaning, and the ECtHR and the CJEU have applied 
consistent principles in determining whether a body qualifies as a tribunal.

Under CoE law, a tribunal is characterised by its judicial function.54 It does not 
have to be a court of the “classic kind”.55 A tribunal can be a body set up to 
determine a limited number of specific issues (for example, compensation), 
provided it offers the appropriate guarantees.56

Example: In Julius Kloiber Schlachthof GmbH and Others v. Austria,57 the 
applicant companies carried out the slaughter of cattle and pigs, for which 
they had to pay agricultural marketing charges to the national agricultur-
al marketing board (AMA). The AMA issued payment orders and imposed 
a surcharge for their failure to pay. The applicants appealed and asked for 
oral hearings. The federal minister, who acted as appellate authority, dis-
missed their appeals without holding a hearing. The applicants complained 
that the proceedings were not decided on by a tribunal.

53  Regulation (EC) No. 44/2001 of the European Parliament and the Council of 22 December 2000 
on jurisdiction and regulation and enforcement of judgments in civil and commercial mat-
ters, OJ 2001 L 12; Regulation (EU) No. 1215/2012 of the European Parliament and the Council 
of 12 December 2012 on jurisdiction and regulation and enforcement of judgments in civil 
and commercial matters (recast), OJ 2012 L 351 (Denmark has not opted in); Regulation (EU) 
No. 650/2012 of the European Parliament and of the Council on jurisdiction, applicable law, 
recognition and enforcement of decisions and acceptance and enforcement of authentic in-
struments in matters of succession and on the creation of a European Certificate of Succession, 
OJ 2012 L 201/107; Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning 
jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the 
matters of parental responsibility, OJ 2003 L 338/1; or Council Regulation (EC) No. 4/2009 of 
18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions 
and cooperation in matters relating to maintenance obligations, OJ 2009L 7/1.

54 

55 

56 

57 

ECtHR, Belilos v. Switzerland, No. 10328/83, 29 April 1988, para. 64.

ECtHR, Campbell and Fell v. the United Kingdom, Nos. 7819/77 and 7878/77, 28 June 1984, 
para. 76.

ECtHR, Lithgow and Others v. the United Kingdom, No. 9006/80, 9262/81, 9263/81, 9265/81, 
9266/81, 9313/81 and 9405/81, 8 July 1986, para. 201.

ECtHR, Julius Kloiber Schlachthof GmbH and Others v. Austria, Nos. 21565/07, 21572/07, 
21575/07 and 21580/07, 4 April 2013.

30

Handbook on European law relating to access to justiceA fair and public hearing before an independent and impartial tribunal and other bodies

The ECtHR reiterated that a tribunal was characterised by its judicial 
function, which meant determining matters within its competence by 
applying the law and after conducting proceedings in a prescribed manner. 
Further requirements were independence, impartiality, the duration of its 
members’ terms of office and the availability of procedural guarantees – 
several of which appeared in the text of Article 6. The Court decided 
that neither the AMA nor the minister qualified as tribunals and that 
Article 6 (1) was violated.

Appropriate guarantees include:

• 

the power to issue binding decisions;58

• 

the ability to determine matters within its competence on the basis of 
rules of law, following proceedings conducted in a prescribed manner;59

•  having full jurisdiction over the case;60

• 

independence and impartiality (see Section 2.2).

Tribunals must also be ‘established by law’. This means that states are obliged 
to adopt specific laws establishing and then managing the functioning of 
national courts. This requires permanence, so excludes bodies that exercise 
a judicial function on the basis of an agreement between the parties to a case. 
However, it can include a body set up to determine a limited number of specific 
issues, provided it offers appropriate guarantees.61 If an administrative body 
does not afford the guarantees of Article 6 (1), there must be a right of appeal 
to a judicial body that does.62

A body can still be a tribunal if it performs other functions in addition to 
judicial functions (e.g. administrative, disciplinary or advisory functions), but 
it cannot undertake both judicial and executive functions.63 Similarly, tribunals 

58 

59 

ECtHR, Benthem v. the Netherlands, No. 8848/80, 23 October 1985, paras. 40 and 43.

ECtHR, Sramek v. Austria, No. 8790/79, 22 October 1984, para. 36.

60  ECtHR, Galina Kostova v. Bulgaria, No. 36181/05, 12 November 2013, para. 59.

61 

62 

63 

ECtHR, Lithgow and Others v. the United Kingdom, Nos. 9006/80, 9262/81, 9263/81, 9265/81, 
9266/81, 9313/81 and 9405/81, 8 July 1986, para. 201.

ECtHR, Albert and Le Compte v. Belgium, Nos. 7299/75 and 7496/76, 10 February 1983.

ECtHR, Benthem v. the Netherlands, No. 8848/80, 23 October 1985, para. 43.

31

may include judges who are non-lawyers or members who have non-judicial 
functions as long as they comply with the requirements of independence and 
impartiality.64

Ultimately, determining whether a body qualifies as a tribunal depends on 
the facts of the case. The decision is made by applying the principles set out 
above. For example, a body that can only issue advisory opinions65 would not 
fall within the definition of a tribunal, while an arbitral body with appropriate 
guarantees for determining specific matters would.66 For further discussion, 
see Section 2.4 on other pathways to justice.

Under EU law, Article 47 of the EU Charter of Fundamental Rights guarantees 
the right to a fair hearing before a tribunal. The CJEU has addressed the 
meaning of ‘tribunalʼ in the context of deciding whether a particular entity is 
permitted to refer a case to the CJEU for a preliminary ruling, which national 
courts and tribunals may do (see Chapter 1 on access to justice).67 To qualify as 
a tribunal for this purpose, the body referring a case to the CJEU must:

•  be established by law;

•  be permanent;

•  be independent and impartial (see below);

• 

include an inter-partes procedure;

•  have compulsory jurisdiction;

•  apply rules of law.68

64  ECtHR, Campbell and Fell v. the United Kingdom, Nos. 7819/77 and 7878/77, 28 June 1984, 

para. 81. Regarding the participation of lay judges, see also ECtHR, Ibrahim Gürkan v. Turkey, 
No. 10987/10, 3 July 2012, para. 18.

65 

ECtHR, Benthem v. the Netherlands, No. 8848/80, 23 October 1985.

66  ECtHR, Lithgow and Others v. the United Kingdom, Nos. 9006/80, 9262/81, 9263/81, 9265/81, 

9266/81, 9313/81 and 9405/81, 8 July 1986.

67 

TFEU, Art. 267. See also CJEU, Information note from national courts for a preliminary ruling, 
5 December 2009, OJ C 2009 C 297/01, para. 9 (confirming that the “status as a court or tribunal 
is interpreted by the Court of Justice as a self-standing concept of European Union law”). 

68  CJEU, C-54/96, Dorsch Consult Ingenieurgesellschaft mbH v. Bundesbaugesellschaft Berlin mbH, 

17 September 1997, para. 23. 

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Handbook on European law relating to access to justiceA fair and public hearing before an independent and impartial tribunal and other bodies

The proceedings before the body must be intended to lead to decisions of 
a judicial nature.69

Example: In Epitropos tou Elegktikou Synedriou sto Ypourgio Politismou kai 
Tourismou v. Ypourgeio Politismou kai Tourismou - Ypiresia Dimosionomikou 
Elenchou,70 the applicant (Elegktikou Synedriou, Greece’s Court of Auditors) 
raised questions concerning the compatibility with EU law of national rules 
allowing public sector employees to take leave for trade union business. 
The CJEU had to consider whether Elegktikou Synedriou was a tribunal 
within the meaning of Article 267 of the TFEU.

The CJEU ruled that it did not constitute a tribunal because: (i) it had min-
isterial links, which meant it was not acting as a third party in relation to 
the interests at stake; (ii) its jurisdiction was limited to a priori auditing of 
the state’s expenditure, and did not include making a determination; (iii) 
its decision did not acquire the force of res judicata (final judgment) and 
its proceedings were not intended to lead to a decision of a judicial nature; 
and (iv) the beneficiary of the expenditure at issue was not a party to the 
proceedings before the Elegktikou Synedriou.

As with CoE law, under EU law, arbitral bodies are generally not considered tri-
bunals because of the optional nature of proceedings and the lack of involve-
ment by state authorities (see Section 2.4 on other paths to justice).71

Example: In Valeri Hariev Belov v. CHEZ Elektro Balgaria AD and others (Bulgaria 
and the European Commission intervening),72 the Bulgarian Commission for 
Protection against Discrimination (KZD) requested a preliminary ruling on 
various provisions of EU law relating to discrimination and consumer protection.

69  CJEU, C-443/09, Camera di Commercio, Industria, Artigianato e Agricoltura (CCIAA) di Cosenza v. 

Grillo Star Srl., 19 April 2012, paras. 20–21.

70  CJEU, C-363/11, Epitropos tou Elegktikou Synedriou sto Ypourgeio Politismou kai Tourismou 

v. Ypourgeio Politismou kai Tourismou - Ypiresia Dimosionomikou Elenchou, 19 December 2012, 
paras. 19-31.

71 

CJEU, C-125/04, Guy Denuit and Betty Cordenier v. Transorient - Mosaïque Voyages et Culture SA., 
27 January 2005, para. 13. For a case in which an arbitral body was deemed a tribunal, see CJEU, 
C-555/13, Merck Canada Inc. v Accord Healthcare Ltd and Others, 13 February 2014, paras. 18–25.

72  CJEU, C-394/11, Valeri Hariev Belov v. CHEZ Elektro Balgaria AD and others (Bulgaria and the 

European Commission intervening), 31 January 2013, para 26.

33

The CJEU confirmed that a national body might be classified as a court or 
tribunal within the meaning of Article 267 of the TFEU when performing 
judicial functions, but could not be recognised as such when exercising 
other functions, such as those of an administrative nature. Accordingly, it 
was necessary to determine in what specific capacity a body was acting 
when it sought a ruling from the CJEU. In this case, various factors led the 
court to reject the contention that the proceedings before the body were 
intended to lead to a decision of a judicial nature; these included: that KZD 
could proceed on its own motion, and had extensive investigative powers; 
KZD’s power to join persons to the proceedings on its own initiative; 
that KZD would be a defendant in court proceedings if its decision were 
appealed; and that KZD could revoke its decisions.

2.2. 

Independence and impartiality of 
tribunals

Key points

•  CoE and EU law require tribunals to be independent and impartial.

•  The CJEU and ECtHR have set out detailed rules on independence to guarantee neu-
trality. The rules relate to the manner of appointing tribunal members, the duration of 
their terms of office, and the existence of guarantees against outside pressure.

•  A tribunal is presumed to be impartial unless proved otherwise. Bias can be subjective 
(relating to the individual judge’s personal bias) or objective (relating to the appear-
ance of bias). Subjective bias is difficult to prove.

Independence and impartiality are often examined together and are closely 
linked, which can make them difficult to distinguish.73 However, independence 
generally relates  to the  structure  of a  tribunal, while impartiality is an 
individual characteristic of a decision-maker.74

73 

For example, see ECtHR, Findlay v. the United Kingdom, No. 22107/93, 25 February 1997, 
para. 73.

74 

ECtHR, Parlov-Tkalčić v. Croatia, No. 24810/06, 22 December 2009, paras. 86–87.

34

Handbook on European law relating to access to justiceA fair and public hearing before an independent and impartial tribunal and other bodies

Independence

Under CoE law, the case law on Article 6 of the ECHR provides detailed rules 
about the independence of the judiciary, which are designed to protect it from 
external pressures and guarantee neutrality.75 These rules cover the manner 
of appointing tribunal members, the duration of their terms of office, and the 
existence of guarantees against outside pressure.76

Example: In Maktouf and Damjanović v. Bosnia and Herzegovina,77 both 
applicants were convicted of war crimes by the Court of Bosnia and 
Herzegovina (the State Court). The State Court consisted of international 
and national judges and had the power to decide on cases involving 
war crimes. The first applicant maintained that the State Court was not 
independent because two of its members were appointed by the Office of 
the High Representative in Bosnia and Herzegovina for a renewable period 
of two years.

The ECtHR rejected this argument. It found no reason to doubt that the 
international judges of the State Court were independent of the political 
organs of Bosnia and Herzegovina, of the parties to the case and of the 
institution of the High Representative. Their appointment was motivated 
by a desire to reinforce the independence of the State Court’s war crimes 
chambers and to restore public confidence in the judicial system. That the 
judges in question were seconded from among professional judges in their 
respective countries represented an additional guarantee against outside 
pressure. There was no violation of Article 6 of the ECHR.

Judges may be appointed by the executive, but the law must ensure that they 
do not receive instructions on how to exercise their duties.78 The final, binding 
and enforceable judgments of a court should not be interfered with.79

75 

76 

77 

78 

79 

For further details on the right to a fair and public hearing by a competent independent and 
impartial tribunal, see UN, Committee on Human Rights (HRC) (2007), General Comment 32, 
23 August 2007, paras. 19–23. 

ECtHR, Campbell and Fell v. the United Kingdom, Nos. 7819/77 and 7878/77, 28 June 1984, 
para. 78.

ECtHR, Maktouf and Damjanović v. Bosnia and Herzegovina, Nos. 2312/08 and 34179/08, 
18 July 2013, paras. 48–53.

ECtHR, Beaumartin v. France, No. 15287/89, 24 November 1994, para. 38. 

ECtHR, DRAFT - OVA a.s. v. Slovakia, No. 72493/10, 9 June 2015, paras. 80–86.

35

The length of judicial appointments also contributes to independence. Tribunal 
members do not have to be appointed for life. Most importantly, terms of 
office must be stable in length and free of outside interference. At minimum, 
members of a tribunal must be protected against removal during their terms 
of office.80 A lack of adequate guarantees against removal vitiates a tribunal’s 
independence.81

The appearance of independence is also important but not decisive for estab-
lishing a lack of independence.82 In deciding whether there is a legitimate rea-
son to fear that a particular court lacks independence or impartiality, the views 
of the parties to the proceedings are important, but not decisive. Doubts must 
be objectively justified.83 For example, where two lay assessors who sat on 
a tribunal dealing with a claim for revision of a lease were appointed by asso-
ciations that had an interest in its continuation, the applicant’s concern about 
impartiality was justified.84

Under EU law, the independence requirement obliges a tribunal to act as 
a third-party decision-maker, independent of the administrative authorities 
and the parties.85

Example: In Graham J. Wilson v. Ordre des avocats du barreau de Luxem-
bourg,86 Mr Wilson took a case to the national courts, arguing that by intro-
ducing a language requirement Luxembourg created unfair barriers to the 
implementation of Directive 98/5/EC on the professional establishment of 
lawyers in Member States other than the one in which they obtained their 

80  ECtHR, Campbell and Fell v. the United Kingdom, Nos. 7819/77 and 7878/77, 28 June 1984, 

para. 80.

81 

ECtHR, Henryk Urban and Ryszard Urban v. Poland, No. 23614/08, 30 November 2010, pa-
ras. 49–53. See also Council of Europe, Consultative Council of European Judges (CCJE) (2001), 
Opinion N° 1 on standards concerning the independence of the judiciary and the irremovability 
of judges, 23 November 2001.

82 

ECtHR, Campbell and Fell v. the United Kingdom, Nos. 7819/77 and 7878/77, 28 June 1984, 
para. 81.

83 

ECtHR, Fruni v. Slovakia, No. 8014/07, 21 June 2011, para. 141.

84  ECtHR, Langborger v. Sweden, No. 11179/84, 22 June 1989, para. 35.

85  CJEU, C-24/92, Pierre Corbiau v. Administration des contributions, 30 March 1993, para. 15.

86  CJEU, C-506/04, Graham J. Wilson v. Ordre des avocats du barreau de Luxembourg, 19 Septem-

ber 2006, paras. 47–53.

36

Handbook on European law relating to access to justiceA fair and public hearing before an independent and impartial tribunal and other bodies

qualifying professional degree.87 This required lawyers to attend an oral 
hearing with the Bar Council. Mr Wilson refused to attend and, as a conse-
quence, the Bar Council refused to register him. He challenged the decision 
before the Disciplinary and Administrative Committee, which was composed 
exclusively of lawyers of Luxembourgian nationality. The administrative 
court requested a preliminary ruling from the CJEU on whether appeal bodies 
such as the Disciplinary and Administrative Committee constitute a remedy 
before a court or tribunal in accordance with domestic law within the mean-
ing of Article 9 of the directive.

The CJEU stated that independence, which is inherent in the task of ad-
judication, meant a tribunal had to act as a third party in relation to the 
authority that adopted the contested decision. Independence also has two 
other aspects: (i) the tribunal is free from external intervention or pres-
sure; and (ii) “internal impartiality” ensuring that the parties to the pro-
ceedings have a level playing field.88

Impartiality

Under CoE law and EU law, impartiality is tightly intertwined with independ-
ence. It requires a decision-maker to be open-minded and unprejudiced when 
determining disputes.

Example: In İbrahim Gürkan v. Turkey,89 a military criminal court sentenced 
the applicant to two-and-a-half months’ imprisonment for wilfully diso-
beying a superior. The court was composed of a military officer with no 
legal training and two military judges.

The ECtHR stated that the participation of lay judges was not neces-
sarily contrary to Article 6 and that the military officer’s lack of legal 

87  Directive 98/5/EC of the European Parliament and of the Council of 16 February 1998 to facil-
itate practice of the profession of lawyer on a permanent basis in a Member State other than 
that in which the qualification was obtained, OJ 1998 L 77.

88  On external pressures, see CJEU, C-103/97, Josef Köllensperger GmbH & Co. KG and Atzwanger 

AG v. Gemeindeverband Bezirkskrankenhaus Schwaz, 4 February 1999, para. 21 (the conditions 
relating to the removal of members were too vague to guarantee against undue pressure). On 
internal impartiality, see CJEU, C-407/98, Katarina Abrahamsson and Leif Anderson v Elisabet 
Fogelqvist, 6 July 2000, para. 32 (objective protections in place in the state constitution).

89  ECtHR, İbrahim Gürkan v. Turkey, No. 10987/10, 3 July 2012, para. 19.

37

qualifications did not hinder his independence or impartiality. However, the 
military officer remained in the service of the army and was subject to 
military discipline. He was appointed by his superiors and did not enjoy 
the same constitutional safeguards as the two military judges. The mil-
itary criminal court could therefore not be considered independent and 
impartial.

Impartiality has two elements:

•  a subjective element relating to an individual judge’s personal prejudices or 

bias;

•  an objective element relating to issues such as the appearance of bias.90

A  tribunal  is  presumed  to  be  free  of  personal  prejudice  unless  proved 
otherwise.91 Demonstrating subjective partiality requires determining the 
personal convictions of a particular judge in a given case, which is very 
difficult. Examples of subjective partiality include displays of hostility or 
ill will by the judge or evidence that the judge has arranged to have a case 
assigned to him/herself for personal reasons.92 The vast majority of cases 
alleging a lack of impartiality have thus focused on the objective test, which 
involves ascertaining whether a judge offered guarantees sufficient to 
exclude any legitimate doubt in this respect.93 Examples of a lack of objective 
impartiality include the existence of close family ties between an opposing 
party’s advocate and the judge,94 or professional relations between the 
judge and the other party to the proceedings.95 Being objectively impartial 
also means offering guarantees sufficient to exclude any legitimate doubt 
in this respect.96 The mere fact that a court performs two types of functions 
in respect of the same decision (advisory and judicial) can cast doubt on its 

90  See also Council of Europe, CCJE (2002), Opinion N° 3 on ethics and liability of judges, 

19 November 2002.

91 

92 

93 

ECtHR, Kyprianou v. Cyprus [GC], No. 73797/01, 15 December 2005, para. 119.

ECtHR, Morice v. France [GC], No. 29369/10, 23 April 2015, para. 74.

Ibid., para. 119. See also, ECtHR, Gautrin and others v. France, No. 21257/93, 20 May 1998, 
para. 58.

94  ECtHR, Micallef v. Malta [GC], No. 17056/06, 15 October 2009, para. 102. 

95 

ECtHR, Pescador Valero v. Spain, No. 62435/00, 17 June 2003, paras. 27–28.

96  ECtHR, Fey v. Austria, No. 14396/88, 24 February 1993, para. 28.

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Handbook on European law relating to access to justiceA fair and public hearing before an independent and impartial tribunal and other bodies

structural impartiality.97 Further, a government official’s presence at a court’s 
deliberations has also been found to violate Article 6.98 Procedures used by 
courts to consider motions alleging bias must themselves be free of bias (for 
example, judges accused of bias should not be asked to review the merits of 
the application).99

EU law has consistently followed the principles established by the ECtHR’s case 
law regarding the two required aspects of impartiality: subjective and objec-
tive impartiality. Independence is considered a prerequisite of impartiality and 
adequate rules are required with respect to the composition of a body and the 
status of its members.100

Example: Chronopost SA and La Poste v. Union française de l’express,101 
concerned a claim that infrastructural assistance constituted state aid. 
The case had twice been before the Court of First Instance (CFI), with 
a different judicial composition but the same Judge-Rapporteur. At the 
second hearing, the CFI affirmed its first ruling, namely that there was 
state aid. The appellants claimed that the second CFI was not an impartial 
tribunal because it included the same Judge-Rapporteur and the decision 
was tainted with bias.

The CJEU set out the test for impartiality as follows: (i) the members of the 
tribunal must be subjectively impartial, that is, none must show bias or 
personal prejudice (there is a presumption of personal impartiality in the 
absence of evidence to the contrary); and (ii) the tribunal must be objec-
tively impartial by offering guarantees sufficient to exclude any legitimate 
doubt in this respect. The CJEU dismissed the allegation of bias. The facts 
did not establish that the Chamber’s composition was unlawful.

97 

ECtHR, Procola v. Luxembourg, No. 14570/89, 28 September 1995, para. 45. Compare with EC-
tHR, Kleyn and Others v. the Netherlands, Nos. 39343/98, 39651/98, 43147/98 and 46664/99, 
6 May 2003, para. 27.

98  ECtHR, Martinie v. France [GC], No. 58675/00, 12 April 2006, paras. 53–55.

99  ECtHR, A.K. v. Liechentenstein, No. 38191/12, 9 July 2015. 

100  CJEU, C-506/04, Graham J. Wilson v. Ordre des avocats du barreau de Luxembourg, 19 Septem-

ber 2006, para. 53.

101  CJEU, Joined cases C-341/06 P and C-342/06 P, Chronopost SA and La Poste v. Union française de 

l’express (UFEX) and Others, 1 July 2008, para. 54.

39

2.3.  What is a fair and public hearing?

Key points

•  Access to justice requires a hearing that is procedurally fair and public.

•  The  right  to  a  fair  and  public  hearing  is  enshrined  in  Article  6  (1)  of  the  ECHR  and 
Article 47 of the EU Charter of Fundamental Rights. Specific safeguards for a fair trial 
in criminal proceedings are additionally found in Article 6 (2) and (3) of the ECHR and 
Article 48 of the Charter.

•  The right to a fair hearing essentially includes the right to equality of arms, the right 
to adversarial proceedings and the right to a reasoned decision, as well as the right to 
secure the execution of a final judgment.

•  A public hearing ensures scrutiny of the judiciary. The right to a public hearing also 

requires that an individual has the right to attend and hear evidence.

Under CoE law, the right to a fair and public hearing under Article 6 of the 
ECHR applies in relation to criminal charges and disputes concerning civil rights 
and obligations (see Section 2.1). Under EU law, pursuant to Article 47 of the 
EU Charter of Fundamental Rights, the right applies to all types of proceedings 
relating to rights and freedoms arising from EU law.

The case law on the right to a fair trial is vast. This section discusses several 
core features of the right, which include: the right to equality of arms, the right 
to adversarial proceedings and the right to a reasoned decision. As noted in 
Chapter 1, the case law of the ECtHR is relevant to the interpretation of Charter 
rights where those rights correspond. Article 47 of the EU Charter of Funda-
mental Rights corresponds to Article 6 of the ECHR on this point.

2.3.1.  A fair hearing

Under CoE law, whether a hearing is considered fair depends on all facts of the 
case, including the ability of the individual to access justice. The proceedings as 
a whole (i.e. from the institution of proceedings, including police questioning in 
criminal cases, to the final determination of an appeal) must be considered.102 
Article 6 of the ECHR also applies to the execution of judgments because, 

102  ECtHR, Edwards v. the United Kingdom, No. 13071/87, 16 December 1992, para. 34.

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Handbook on European law relating to access to justiceA fair and public hearing before an independent and impartial tribunal and other bodies

ultimately, if an individual cannot secure the execution of a judgment at the 
end of proceedings, the right to a fair hearing is of little value.103

Promising practice

Ensuring a fair trial through co-hearing

In Tarascon, France, a specialised practice called ‘co-hearing’ was developed to 
strengthen the participation of children. It allows social workers to join children 
during hearings with judges in civil proceedings. The social worker’s presence 
helps the child to express his/her point of view. It also creates a more child-
friendly environment. This practice also ensures that the child’s replies can be 
interpreted from two perspectives (judge and social worker), making hearings 
more fair. The project was given special mention in connection with the 2012 
Crystal Scales of Justice Prize.

Source: 2012 Crystal Scales of Justice Award, organised jointly by the Council of Europe and the 
European Commission.

Under CoE law and EU law, one of the core requirements of the right to a fair 
hearing is ‘equality of arms’ between the parties. Equality of arms involves 
ensuring that each party has a reasonable opportunity to present its case in 
conditions that do not disadvantage either party. Any complaint regarding 
the absence of equality of arms “will be considered in the light of the whole 
of Article 6 (1) because the principle of equality of arms is only one feature 
of the wider concept of a fair trial, which also includes the fundamental right 
that proceedings should be adversarial”.104 The CJEU has similarly defined the 
principle.105

In criminal cases, the principle of equality of arms is safeguarded through the 
specific defence rights set out in Article 6 (3) (d), namely the “right to examine 
or have examined witnesses against him and to obtain the attendance and ex-
amination of witnesses on his behalf under the same conditions as witnesses 
against him”. Article 6 (2) and (3) of the ECHR and Article 48 of the EU Charter 
of Fundamental Rights outline further specific fair trial guarantees in criminal 

103  ECtHR, Hornsby v. Greece, No. 18357/91, 19 March 1997, para. 40. See also UN, HRC (2005), Case 

No. 823/1998, Czernin v. Czech Republic, 29 March 2005 (holding that inaction and excessive 
delays in implementing decisions violate ICCPR Art. 14).

104  ECtHR, Ruiz-Mateos v. Spain, No. 12952/87, 23 June 1993, para. 63; see also paras. 63–68.

105  CJEU, C-199/11, Europese Gemeenschap v. Otis NV and Others, 6 November 2012, para. 71.

41

cases. They include the right to be informed promptly of the nature and cause 
of the accusation faced and the right to adequate time and facilities for prepar-
ing one’s defence.

Under EU law, secondary legislation further details the scope of fair trial rights. 
For example, Directive 2012/13/EU on the right to information in criminal pro-
ceedings establishes that Member States must inform suspects and accused 
persons of their rights, including the right to access a lawyer and the right to 
remain silent.106 Under the directive, suspects and accused persons who are 
arrested must also be provided with a ‘Letter of rights’ containing information 
on additional rights, including their right to access documents relating to their 
specific case that are in the possession of the competent authorities – such 
as evidence – and their right to access urgent medical assistance. The direc-
tive is part of an EU ‘roadmap’ for strengthening procedural rights of suspects 
and accused persons in criminal proceedings.107 The roadmap was adopted to 
strengthen rights of individuals in criminal proceedings within the EU as well 
as to ensure mutual trust in each other’s criminal justice systems and promote 
judicial cooperation between EU Member States. The roadmap also includes 
the Directive on the right to interpretation and translation in criminal proceed-
ings,108 the Directive on the right of access to a lawyer in criminal proceedings 
and in European arrest warrant proceedings,109 a Commission Recommendation 
on the right to legal aid for suspects or accused persons,110 and a Commission 
Recommendation on procedural safeguards for vulnerable persons suspected 
or accused in criminal proceedings.111 There is also a Proposal for a Directive 
on procedural safeguards for children suspected or accused in criminal pro-

106  Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the 

right to information in criminal proceedings, OJ 2012 L 142.

107  Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural 

rights of suspected or accused persons in criminal proceedings, OJ 2009 C 295.

108  Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the 

right to interpretation and translation in criminal proceedings, OJ 2010 L 280.

109  Directive 2013/48/EU of the European Parliament and of the Council of 22 October 20143 on the 
right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, 
and on the right to have a third party informed upon deprivation of liberty and to communicate 
with third persons and with consular authorities while deprived of liberty, OJ 2013 L 294/1. 
The United Kingdom and Ireland have not opted into this directive, and it does not apply to 
Denmark.

110  European Commission (2013), Recommendation of 27 November 2013 on the right to legal aid 

for suspects or accused persons in criminal proceedings, OJ 2013 C 378.

111  European Commission (2013), Recommendation of 27 November 2013 on procedural safe-
guards for vulnerable persons suspected or accused in criminal proceedings, OJ 2013 378.

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Handbook on European law relating to access to justiceA fair and public hearing before an independent and impartial tribunal and other bodies

ceedings112 and a Proposal for a Directive of the European Parliament and of 
the Council on provisional legal aid and legal aid in European Arrest Warrant 
proceedings.113

Under both CoE and EU law, another essential component of the right to a fair 
hearing is the right to adversarial proceedings.114 The requirements of this right 
are in principle the same in non-criminal and criminal cases.115 In practice, the 
right to adversarial proceedings includes:

• 

• 

the right to have knowledge of, and comment on, all evidence filed to 
influence the court’s decision;116

the right to have sufficient time to familiarise oneself with the evidence 
before the court;117

• 

the right to produce evidence.118

The courts must consider whether the procedure applied as a whole complied 
with the requirements of the right to adversarial proceedings.119

Example: In Užukauskas v. Lithuania,120 the Lithuanian authorities revoked 
the applicant’s firearms licence because information in police records 
alleged he was a risk to society. He was required to hand in his arms to the 

112  European Commission (2013), Proposal for a Directive of the European Parliament and of the 
Council on procedural safeguards for children suspected or accused in criminal proceedings, 
COM(2013)822.

113  European Commission (2013), Proposal for a Directive of the European Parliament and of the 
Council on provisional legal aid for suspects or accused persons deprived of liberty and legal 
aid in European arrest warrant proceedings, COM(2013) 824.

114  ECtHR, Ruiz-Mateos v. Spain, No. 12952/87, 23 June 1993, para. 63; CJEU, C-300/11, ZZ v. Secretary 
of State for the Home Department, 4 June 2013, para. 55. In relation to criminal proceedings, 
see ECtHR, Brandstetter v. Austria, Nos. 11170/84, 12876/87 and 13468/87, 28 August 1991, 
paras. 66–67.

115  ECtHR, Werner v. Austria, No. 21835/93, 24 November 1997, para. 66.

116  ECtHR, Vermeulen v. Belgium [GC], No. 19075/91, 20 February 1996, para. 33. 

117  ECtHR, Krčmář v. Czech Republic, No. 35376/97 3 March 2000, para. 42.

118  ECtHR, Clinique des Acacias and Others v. France, Nos. 65399/01, 65406/01, 65405/01 and 

65407/01, 13 October 2005, para. 37.

119  ECtHR, Rowe and Davies v. the United Kingdom [GC], No. 28901/95, 16 February 2000, para. 62.

120  ECtHR, Užukauskas v. Lithuania, No. 16965/04, 6 July 2010, paras. 45-51.

43

police in return for payment. He challenged the entry of his name in the 
operational records, but this action was dismissed on the basis of classified 
material submitted by the police. The information was not disclosed to the 
applicant.

The data in the file were of decisive importance to the applicant’s case be-
cause the judges had to consider them to determine whether he was in-
volved in criminal activity. The police file was the only evidence of the appli-
cant’s alleged danger to society. Given that the applicant was not apprised 
of the evidence against him and did not have the opportunity to respond to 
it (unlike the police), the decision-making procedure did not comply with the 
requirements of adversarial proceedings or equality of arms, and it did not 
incorporate adequate safeguards to protect the interests of the applicant. 
The ECtHR found that this was in violation of Article 6 of the ECHR.

The right to a reasoned decision is another core aspect of the right to a fair 
hearing.121 A reasoned decision demonstrates that a case has been heard prop-
erly and permits the parties to bring an appropriate and effective appeal.122 
Courts are not required to give detailed answers to every argument and the 
duty to give reasons varies according to the nature of the decision and the 
circumstances of the case.123 In criminal proceedings, a jury trial must include 
sufficient safeguards to permit the defendant to understand why s/he has 
been found guilty. This may include guidance by the judge on legal issues or 
evidence, and precise, unequivocal questions put to the jury by the judge.124

In civil proceedings, courts are obliged to give sufficient reasons for their 
decisions to allow individuals to make effective applications for appeal.125 An 
appellate court may remedy a lower court’s inadequate reasoning. In principle, 
it is acceptable for an appellate body to simply endorse the reasons for the 
lower body’s decision. This, however, was found to be insufficient when the 
main complaint in the actual appeal was the inadequacy of the lower court’s 

121  See Council of Europe, CCEJ (2008), Opinion N°11 on “the quality of judicial decisions”, 

18 December 2008.

122  ECtHR, Hadjianastassiou v. Greece, No. 12945/87, 16 December 1992, para. 33. Compare 

with ECtHR, Jodko v. Lithuania (dec.), No. 39350/98, 7 September 1999. On EU law, see CJEU, 
C-619/10, Trade Agency Ltd v. Seramico Investments Ltd, 6 September 2012, para. 53.

123  ECtHR, García Ruiz v. Spain [GC], No. 30544/96, 21 January 1999, para. 26.

124  ECtHR, Taxquet v. Belgium [GC], No. 926/05, 16 November 2010, paras. 93-100.

125  ECtHR, Suominen v. Finland, No. 37801/97, 1 July 2003, para 36-38. 

44

Handbook on European law relating to access to justiceA fair and public hearing before an independent and impartial tribunal and other bodies

reasoning.126 The reasons given by the appellate court must address the essence 
of the issue to be decided in a manner that adequately reflects its role.127

Right to appeal

Under CoE law, although Protocol No. 7 to the ECHR (binding only on its States 
Parties) sets out a specific right of appeal in criminal cases,128 the ECHR does 
not guarantee a right of appeal in civil proceedings. The ECtHR has confirmed, 
however, that, if an appeals process is provided in civil or criminal proceedings, 
Article 6 will apply to it.129 Under EU law, there is no specific right of appeal in 
the EU Charter of Fundamental Rights, but ECtHR case law has to be taken into 
account when interpreting Article 47.

2.3.2.  A public hearing

Under CoE law and EU law, the concept of access to justice also includes the 
right to a public hearing. This helps promote confidence in courts by render-
ing visible and transparent the administration of justice.130 Article 47 of the 
EU Charter of Fundamental Rights corresponds to Article 6 of the ECHR on this 
point.

Implicit in the right to a public hearing is the right to an oral hearing.131 For ex-
ample, in criminal proceedings, an accused should generally be entitled to at-
tend a hearing at first instance.132 The right to an oral hearing is important be-
cause a person cannot exercise the other rights under Article 6 (3) of the ECHR 
if he/she is not present. However, the personal attendance of the defendant 
does not take on the same crucial significance for an appeal hearing as it does 
for the trial hearing. The manner in which Article 6 is applied to proceedings 
before courts of appeal depends on the special features of the proceedings 

126  ECtHR, Hirvisaari v. Finland, No. 49684/99, 27 September 2001, para 32.

127  ECtHR, Hansen v. Norway, No. 15319/09, 2 October 2014, paras. 71 et seq.

128  Council of Europe, Protocol No. 7 to the ECHR, CETS No. 117, 1984, Art. 2.

129  See for example ECtHR, Monnell and Morris v. the United Kingdom, Nos. 9562/81 and 9818/82, 

2 March 1987, para. 54.

130  ECtHR, Pretto v. Italy, No. 7984/77, 8 December 1983, para. 21.

131  ECtHR, Allan Jacobsson (No. 2) v. Sweden, No. 16970/90, 19 February 1998, para. 46. See also 

CJEU, C-399/11, Stefano Melloni v. Ministerio Fiscal, 26 February 2013, para. 49.

132  ECtHR, Tierce and Others v. San Marino, Nos. 24954/94, 24971/94, 24972/94, 25 July 2000, 
para. 94; ECtHR,  Jussila v. Finland [GC], No. 73053/01, 23 November 2006, para. 40. 

45

involved, and account must be taken of the entirety of the proceedings in the 
domestic legal order and of the role of the appellate court therein 133 Moreover, 
the right to an oral hearing is not absolute, and some circumstances may jus-
tify dispensing with it, depending on the nature of the issues to be decided by 
the court.134 For example, an oral hearing may not be required where there are 
no issues of credibility or contested facts that necessitate the oral presentation 
of evidence or cross-examination of witnesses.135 If a criminal trial is conducted 
in absentia, and the defendant is unaware of the proceedings, the defendant 
must be able to obtain a fresh determination on the merits of the charge from 
a court once he/she becomes aware of them. In civil proceedings, it may be 
possible to proceed without a hearing in cases raising legal issues of a limited 
nature136 or where the proceedings are exclusively legal or technical.137 In prin-
ciple, however, an individual is entitled to a public oral hearing before the first 
and only tribunal examining his/her case.138

Article 6 (1) of the ECHR explicitly permits excluding the press and public:

• 

in the interest of morals, public order or national security in a democratic 
society;

•  where it is required in the interests of juveniles or to protect the parties’ 

private life; or

•  where publicity would prejudice the interests of justice.

133  ECtHR, Kremzow v. Austria, No. 12350/86, 21 September 1993, paras 58-59; ECtHR, Hermi v. 
Italy [GC], No. 18114/02, 18 October 2006, para. 60. In relation to trials in absentia in the EU, 
see Council of the European Union (2009), Council Framework Decision 2009/299/JHA of 
26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/
JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of persons 
and fostering the application of the principle of mutual recognition to decisions rendered in the 
absence of the person concerned at the trial, OJ 2009 L 81/24. 

134  ECtHR, Kremzow v. Austria, No. 12350/86, 21 September 1993, para. 59.

135  ECtHR, Jussila v. Finland [GC], No. 73053/01, 23 November 2006, paras. 41–42 and 47–48.

136  ECtHR, Valová and Others v. Slovakia, No. 44925/98, 1 June 2004, paras. 65–68.

137  ECtHR, Koottummel v. Austria, No. 49616/06, 10 December 2009, para. 19.

138  ECtHR, Becker v. Austria, No. 19844/08, 11 June 2015, para. 39. 

46

Handbook on European law relating to access to justiceA fair and public hearing before an independent and impartial tribunal and other bodies

The need to protect professional confidentiality can also justify imposing lim-
itations.139 Children are given explicit protection and it may be possible to ex-
clude a whole class of proceedings because of the need to protect them.140

Example: In Khrabrova v. Russia,141 the applicant was a teacher in Moscow 
until she was dismissed in February 2002, following a dispute with a pupil 
during a lesson. She pursued civil proceedings against the school, seek-
ing compensation and reinstatement, and later complained to the ECtHR 
that the proceedings were unfair. Specifically, she complained about the 
domestic court’s failure to hold a public hearing in the interests of the ju-
veniles involved.

The ECtHR found vague the reasons given by the national court for de-
ciding to hold hearings in camera. These suggested that a public hearing 
would adversely affect the education of an unspecified group of juveniles. 
The Court stated that domestic courts had to specify sufficient reasons to 
justify shielding the administration of justice from public scrutiny, a vital 
safeguard against arbitrariness. However, here this had not been properly 
done. The public hearing subsequently held before the appellate court did 
not remedy the violation because it did not have the requisite scope; spe-
cifically, the appellate court did not re-hear the witnesses. The Court found 
that this violated the right to a public hearing under Article 6 of the ECHR.

The right to a public hearing may be waived; waivers must be made of one’s 
free will, in an unequivocal manner and not be contrary to an important public 
interest. For example, even where an accused does not appear at trial in per-
son, there is no violation if the accused was informed of the date and place of 
the trial or was defended by a legal counsellor to whom s/he had given a man-
date to do so.142

139  ECtHR, Diennet v. France, No. 18160/91, 26 September 1995, paras. 34–35.

140  ECtHR, B. and P. v United Kingdom, Nos. 36337/97 and 35974/97, 24 April 2001, paras. 37–38.

141  ECtHR, Khrabrova v. Russia, No. 18498/04, 2 October 2012, paras. 50–53.

142  ECtHR, Håkansson and Sturesson v. Sweden, No. 11855/85, 21 February 1990, para. 66; CJEU, 

C-399/11, Stefano Melloni v. Ministerio Fiscal, 26 February 2013, para. 49. 

47

2.4.  Other paths to justice

Key points

•  Access to justice mechanisms may include non-judicial bodies, such as national hu-
man rights institutions, equality bodies, data protection authorities or ombudsperson 
institutions.

•  Administrative, non-judicial bodies may advance access to justice by providing quicker 
ways of obtaining remedies or by allowing collective redress. However, they must not 
override an individual’s right of access to a court and should generally be subject to 
judicial supervision.

•  Alternative  dispute  resolution  (ADR)  procedures,  such  as  mediation  and  arbitration, 

provide alternatives to accessing justice via formal judicial routes.

•  If the law compels parties to go to arbitration, the arbitration tribunal must comply 
with Article 6 of the ECHR and Article 47 of the EU Charter of Fundamental Rights.

•  The EU has encouraged the use of ADR with legislation such as the EU Mediation Direc-

tive and a variety of consumer protection initiatives.

2.4.1.  Non-judicial bodies

Many judicial systems face increasing workloads and access to courts can be 
expensive. A broader view of access to justice encompasses non-judicial bod-
ies as well as courts.143 This may include equality bodies, administrative and 
non-judicial institutions that deal with cases of discrimination, national human 
rights institutions (NHRIs), ombudsperson institutions, data protection authori-
ties, labour inspectorates and specialised tribunals.144 EU Member States estab-
lished some of these bodies pursuant to specific EU legislative requirements – 
for example, equality bodies on racial or ethnic equality and gender equality 

143  FRA (2012), Bringing rights to life: The fundamental rights landscape of the European Union, 

Luxembourg, Publications Office.

144  See UN, General Assembly (1993) Resolution A/RES/48/134 on national institutions for the 
promotion and protection of human rights, 20 December 1993 (Paris Principles), Annex. 

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Handbook on European law relating to access to justiceA fair and public hearing before an independent and impartial tribunal and other bodies

were set up under the Racial Equality Directive,145 and national data protection 
authorities under the Data Protection Directive.146

Quasi-judicial procedures brought before non-judicial bodies – often in a form 
of mediation (see Section 2.4.2 on alternative dispute resolution) – may pro-
vide faster, less formalistic and cheaper alternatives for claimants. However, 
the majority of non-judicial bodies do not have the power to issue binding de-
cisions (exceptions include, for example, data protection authorities and some 
equality bodies), and their powers of compensation are generally limited.

The ECtHR has stated that a non-judicial body under domestic law may be con-
sidered to be a court if it quite clearly performs judicial functions and offers the 
procedural guarantees required by Article 6 of the ECHR, such as impartiality 
and independence (see Section 2.1.2).147 If it does not, the non-judicial body 
must be subject to supervision by a judicial body that has full jurisdiction and 
complies with the requirements of Article 6.148

Administrative, non-judicial bodies may also advance access to justice by al-
lowing collective redress or complaints. This permits complainants to join forc-
es so that many individual claims relating to the same case can be combined 
into a single court action.149 This may allow organisations, such as NGOs, to file 
complaints on behalf of individuals.

145  Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment 

between persons irrespective of racial or ethnic origin, OJ 2000 L 180 (Racial Equality Directive).

146  Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the 

protection of individuals with regard to the processing of personal data and on the free move-
ment of such data, OJ 1995 L 281 (Data Protection Directive).

147  ECtHR, Oleksandr Volkov v. Ukraine, No. 21722/11, 9 January 2013, paras. 88–91.

148  ECtHR, Zumtobel v. Austria, No. 12235/86, 21 September 1993, paras. 29–32. 

149  European Commission (2013), Recommendation of 11 June 2013 on common principles for 

injunctive and compensatory collective redress mechanisms in the Member States concerning 
violations of rights granted under Union Law, OJ 2013 L 201. See also, European Parliament, 
Directorate General for Internal Policies (2011), Overview of existing collective redress schemes 
in EU Member States, Brussels, July 2011.

49

Promising practice

Improving access to justice in discrimination cases

In  Italy,  the  equality  body  dealing  with  discrimination  on  grounds  of  race  or 
ethnic origin – the National Office Against Racial Discrimination – established 
anti-discrimination  offices  and  focal  points  in  some  locations  in  cooperation 
with local authorities and NGOs. In addition, equality counsellors, who address 
discrimination on the ground of sex, exist at national and regional levels; they 
are mandated to receive complaints, provide counselling and offer mediation 
services. They cooperate with labour inspectors who have investigative powers 
to establish the facts in discrimination cases. They also have legal standing in 
court in cases of collective impact when no individual victim can be identified.

Source: FRA (2012), Access to justice in cases of discrimination in the EU – Steps to further equality, 
p. 28.

2.4.2.  Alternative dispute resolution

Alternative dispute resolution (ADR) refers to dispute resolution procedures – 
such as mediation and arbitration – that offer out-of-court solutions to dis-
putes.150 ADR procedures can improve the efficiency of justice by reducing the 
courts’ workload, and by offering individuals an opportunity to resolve dis-
putes in a cost-effective manner.151 In addition to entailing lower costs, they 
can benefit individuals by reducing the duration and stress of proceedings. The 
history and use of ADR across Europe vary. Some of the non-judicial bodies 
mentioned in Section 2.4.1 frequently use ADR procedures.

150  For example, see European Commission (2011), Consultation Paper on the use of ADR as 

a means to resolve disputes related to commercial transactions and practices in the European 
Union, para. 6.

151  Council of Europe, CEPEJ (2014), Report on “European judicial systems – Edition 2014 (2012 

data): efficiency and quality of justice”, Chapter 6, mentioned in ECtHR, Momčilović v. Croatia, 
No. 11239/11, 26 March 2015, para. 33.

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Handbook on European law relating to access to justiceA fair and public hearing before an independent and impartial tribunal and other bodies

Promising practice

Using mediation in family procedures

Most countries consider it beneficial to settle disputes relating to family affairs 
through mediation rather than by going to court. In Croatia, it is mandatory for 
parents involved in divorce and custody disputes to try mediation. Psychologists 
from Centres for Social Welfare perform the mediation.

Mediation  is  sometimes  combined  with  other  functions.  For  example,  in 
Estonia,  a  child  support  specialist  assists  parents  with  mediation  during  the 
first stages of a trial. In Germany, the child’s legal counsel provides parental 
mediation assistance.

Source: FRA (2015), Child-friendly justice – Perspectives and experiences of professionals on 
children’s participation in civil and criminal judicial proceedings in 10 EU Member States, p. 47.

Within the CoE, mediation in the context of civil proceedings has been defined 
as a dispute resolution process in which parties negotiate to reach an agree-
ment with the assistance of a mediator.152 In the context of criminal proceed-
ings, mediation has been defined as a process in which an impartial media-
tor – with the consent of both parties – helps the victim and the offender to 
participate actively in resolving issues arising from a crime.153 At minimum, ar-
bitration involves a person who by virtue of an arbitration agreement is called 
upon to render a legally binding decision in a dispute submitted to him/her by 
the parties to the agreement.154 It should be noted that non-enforcement of a fi-
nal arbitration decision can constitute a violation of Article 6 (1) of the ECHR.155

152  Council of Europe, Committee of Ministers (2002), Recommendation Rec(2002)10 to member 
states on mediation in civil matters, 18 September 2002, principle 1. See also Council of 
Europe, Committee of Ministers (1998), Recommendation, Rec(98)1 on family mediation, 
21 January 1998; Council of Europe, Committee of Ministers (2001), Recommendation 
Rec(2001)9 to member states on alternatives to litigation between administrative authorities 
and private parties, 5 September 2001; Council of Europe, CEPEJ (2007), Analysis on assessment 
of the impact of Council of Europe recommendations concerning mediation; Council of Europe, 
CEPEJ (2007), Guidelines for a better implementation of the existing recommendation on 
alternatives to litigation between administrative authorities and private parties.

153  Council of Europe, Committee of Ministers (1999), Recommendation Rec(99)19 to member 

states concerning mediation in penal matters, 15 September 1999.

154  Council of Europe, Additional Protocol to the Criminal Law Convention on Corruption, CETS 

No. 191, 2003, Art. 1. This has not been widely ratified. See also, UN, UN Commission on 
International Trade Law (UNCITRAL) (1985), UNCITRAL Model Law on International Commercial 
Arbitration, 11 December 1985 (as amended in 2006).

155  ECtHR, Regent Company v. Ukraine, No. 773/03, 3 April 2008, para. 60.

51

Example: In Suda v. the Czech Republic,156 the applicant was a minority 
shareholder in a public limited company (C.). In November 2003, the gen-
eral meeting of the company took a majority decision by which C. would 
be closed down without liquidation and its assets taken over by the main 
shareholder (E.). The redemption value of the shares held by the minori-
ty shareholders, including the applicant, was determined by contract. An 
arbitration clause in the contract provided that any re-examination of the 
redemption value would be a matter for arbitration and not ordinary court 
proceedings; the agreement to submit to arbitration was made between 
C. and E. The applicant pursued various court proceedings at national level, 
seeking to have the redemption value re-examined and invalidated, but 
these were unsuccessful.

The ECtHR held that the arrangement for dispute resolution was not in it-
self sufficiently unambiguous to constitute a waiver of the right to a tribu-
nal, and that, if the parties were compelled to go to arbitration, the tribu-
nal had to comply with Article 6. The Court found a violation of Article 6 (1) 
because the arbitration procedure did not fulfil two fundamental require-
ments: (i) the arbitration clause gave decision-making power to arbitra-
tors on the list of a limited liability company, which was not an arbitration 
tribunal established by law; and (ii) the arbitration procedure did not allow 
for a public hearing and the applicant had not in any way waived this right.

Under EU law, mediation has been described as a structured process in which 
the parties to a dispute voluntarily attempt to reach a settlement with the as-
sistance of a mediator.157 The EU has adopted several instruments to encourage 
ADR. For example, the EU Mediation Directive endorses the use of mediation 
relating to cross-border disputes in certain civil and commercial matters.158 The 
directive does not apply to revenue, customs or administrative matters, or to 
disputes involving the liability of the state; nor does it apply to areas of em-
ployment or family law where the parties themselves are not free to decide 

156  ECtHR, Suda v. the Czech Republic, No. 1643/06, 28 October 2010.

157  Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain 
aspects of mediation in civil and commercial matters (Mediation Directive), OJ 2008 L 136, 
Art. 3. It does not apply to Denmark.

158 

Ibid. Under Art. 2 (1), a “cross-border” dispute occurs when at least one of the parties is 
domiciled or habitually resident in a Member State different to the other party on one of the 
following dates: (i) when the parties agree to use mediation, a dispute having arisen; (ii) when 
a court invites or orders the parties to attempt mediation; or (iii) when the parties are obliged 
to use mediation under national law.

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Handbook on European law relating to access to justiceA fair and public hearing before an independent and impartial tribunal and other bodies

on rights and obligations under the applicable law, for example, matters of sta-
tus. It does not oblige parties to mediate: its objective is to facilitate access to 
ADR and promote the amicable settlement of disputes through mediation.159 
The directive also aims to ensure a balanced relationship between mediation 
and judicial proceedings and confirms that the parties to a dispute are not to be 
prevented from exercising their right of access to judicial systems.160

The EU has also legislated on ADR in the field of consumer protection.161 A di-
rective and a regulation on ADR for consumer disputes require Members States 
to promote and establish systems to enable consumer disputes to be dealt 
with effectively and quickly.162 The directive aims to ensure that authorities are 
designated at national level to maintain and monitor a list of ADR providers 
who meet the directive’s requirements. These ADR providers must keep their 
websites up-to-date and offer services at no or nominal cost. Member States 
were required to transpose the directive by July 2015.

The regulation requires the establishment of an online, interactive portal (the 
ODR Platform) for contractual disputes to be resolved out of court via, for ex-
ample, e-mediation. The regulation applies to consumers and to traders in 
domestic and cross-border disputes and to certain disputes brought against 
consumers by traders. Once EU consumers submit their disputes online, they 
are linked with national ADR providers who will help resolve them.163 Mem-
ber States must propose an online dispute resolution (ODR) contact to assist 
with disputes submitted through the ODR Platform. Online traders must inform 
customers of the ADR option and provide a link to the ODR Platform on their 
website. The mechanism will come into force in January 2016. Further e-justice 
initiatives are discussed in Section 8.5.

159 

Ibid., Art. 1. For a discussion of the directive’s impact, see European Parliament (2014), ‘Reboot-
ing’ the Mediation Directive: assessing the limited impact of its implementation and proposing 
measures to increase the number of mediations in the EU, Brussels, European Union.

160  Ibid., Art. 5 (2).

161  Art. 38 of the EU Charter of Fundamental Rights asserts that “Union policies shall ensure a high 

level of consumer protection”. 

162  See Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 
on alternative dispute resolution for consumer disputes and amending Regulation (EC) 
No. 2006/2004 and Directive 2009/22/EC, OJ L 165 (Consumer ADR Directive), and Regulation 
(EU) No. 524/2013 of the European Parliament and of the Council of 21 May 2013 on online 
dispute resolution for consumer disputes and amending Regulation (EC) No. 2006/2004 and 
Directive 2009/22/EC, OJ L 165 (Consumer ODR Regulation).

163  See Consumer ODR Regulation.

53

The growing popularity of mediation as a potentially cost and time-effective 
mechanism has prompted some states to introduce mandatory mechanisms. 
The case below outlines how the CJEU ensured that these mandatory mecha-
nisms comply with the principle of effective judicial protection.

Example: In Rosalba Alassini v. Telecom Italia SpA,164 the CJEU considered 
four joined preliminary references from the Magistrates Court from Ischia 
concerning clauses under which an attempt to settle out-of-court is a man-
datory condition for certain disputes to be admissible before national 
courts. The clauses were enacted when transposing Directive 2002/22/EC 
on universal service and users’ rights relating to electronic communica-
tions networks and services. The Magistrates Court asked the CJEU wheth-
er the principle of effective judicial protection precludes mandatory 
mediation.

The CJEU found that the principle of effective judicial protection did not 
preclude mandatory mediation as long as certain requirements are met: 
(i) the procedure must not result in a binding decision; (ii) it must not cause 
a substantial delay for purposes of bringing legal proceedings; (iii) the pe-
riod for the time-barring of claims must be suspended for the duration of 
the settlement procedure; (iv) it must not give rise to costs (or only very 
low costs) for the parties; (v) electronic means cannot be the only means 
by which the settlement procedure may be accessed; and (vi) interim 
measures must be possible in exceptional cases.

ADR mechanisms are also available in the area of criminal law. A CoE recom-
mendation provides guidance on the use of mediation in penal matters.165 
Before agreeing to mediation, the parties should be fully informed of their 
rights, the nature of the mediation process and the possible consequences of 
their decision.166 Neither the victim nor the offender should be induced by un-
fair means to accept mediation167 – for example, by way of coercion from the 
prosecutor or because of the absence of legal advice. However, mediation in 

164  CJEU, Joined cases C-317/08 to C-320/08, Rosalba Alassini v. Telecom Italia SpA, Filomena 
Califano v. Wind SpA, Lucia Anna Giorgia Iacono v. Telecom Italia SpA and Multiservice Srl 
v. Telecom Italia SpA, 18 March 2010, para. 67.

165  Council of Europe, Committee of Ministers (1999), Recommendation Rec(99)19 to member 

states concerning mediation in penal matters, 15 September 1999.

166  Ibid., para. 10. 

167 

Ibid., para. 11.

54

Handbook on European law relating to access to justiceA fair and public hearing before an independent and impartial tribunal and other bodies

criminal cases is not always appropriate. For example, the Council of Europe’s 
Convention on preventing and combating violence against women and domes-
tic violence prohibits mandatory alternative conflict resolution, including medi-
ation and conciliation, in this area.168

Under EU law, the Victims’ Rights Directive sets out victims’ right to safeguards 
in the context of restorative justice.169 The rights of victims of crime are further 
discussed in Section 8.2.

168  Council of Europe, Convention on preventing and combating violence against women and 

domestic violence (Istanbul Convention), CETS No. 210, 2011. 

169  Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 

establishing minimum standards on the rights, support and protection of victims of crime 
and replacing Council Framework Decision 2001/220/JHA, OJ 2012 L 315, Art. 12. See CJEU, 
Joined cases C-483/09 and C-1/10, Criminal proceedings against Magatte Gueye and Valentin 
Salmerón Sánchez, 15 September 2011, para. 74 and CJEU, C-205/09, Criminal proceedings 
against Emil Eredics and Mária Vassné Sápi, 21 October 2011, para. 40. See also UN, Division for 
the Advancement of Women in the Department of Economic and Social Affairs (DAW) (2009), 
Handbook for Legislation on Violence against Women, New York, United Nations.

55

3 

Legal aid

EU

Issues covered

CoE

Legal aid in non-criminal proceedings

Charter of Fundamental 
Rights, Article 47 (right to an 
effective remedy)
CJEU, C-279/09, DEB Deutsche 
Energiehandels- und Beratungs-
gesellschaft mbH v. Bundesre-
publik Deutschland, 2010
Legal Aid Directive (2002/8/EC)
Regulation No. 604/2013,  
Article 27 (5) and (6)

Legal aid in criminal proceedings

Charter of Fundamental 
Rights, Article 48 (2) (presump-
tion of innocence and right to 
defence)

Scope of 
application

ECHR, Article 6 (1)
ECtHR, Airey v. Ireland, 
No. 6289/73, 1979
European Agreement on the 
Transmission of Applications for 
Legal Aid, CETS No. 92, 1977

Financial and 
merits tests

ECtHR, McVicar v. the United 
Kingdom, No. 46311/99, 2002

Scope of 
application

ECHR, Article 6 (3) (c)

Financial test

Interests of jus-
tice test

ECtHR, Tsonyo Tsonev v. Bulgaria 
(No. 2), No. 2376/03, 2010
ECtHR, Twalib v. Greece, 
No. 24294/94, 1998
ECtHR, Zdravko Stanev v. Bulgaria, 
No. 32238/04, 2012

57

Access to legal aid is an important part of the right to a fair trial under Article 6 
of the ECHR and Article 47 of the EU Charter of Fundamental Rights. The right 
to legal aid ensures effective access to justice for those who have insufficient 
financial resources to cover the costs of court cases, such as court fees or costs 
of legal representation (the right to be advised, represented and defended is 
analysed in Chapter 4).

Under CoE and EU law, legal aid does not have to take a particular form; states 
are free to decide how to meet their legal obligations. As a result, legal aid 
systems often vary widely.170 For example, legal aid may consist of free rep-
resentation or assistance by a lawyer and/or dispensation from paying the 
costs of proceedings, including court fees.171 These arrangements can exist 
alongside other complementary support schemes, such as pro bono defence, 
legal advice centres or legal expenses insurance – which may be state funded, 
run by the private sector, or administered by NGOs.172 This chapter address-
es legal aid in non-criminal proceedings (Section 3.1) and criminal proceedings 
(Section 3.2) separately because the applicable rights vary.

3.1. 

Legal aid in non-criminal proceedings

Key points

•  Article 6 (1) of the ECHR and Article 47 of the EU Charter of Fundamental Rights guar-
antee the right to legal assistance in civil proceedings. This allows individuals to access 
justice irrespective of their financial means.

•  Legal aid is generally subject to a financial means and merits test. States can decide 
whether it is in the interest of justice to provide legal aid, taking into account: the im-
portance of the case to the individual; the complexity of the case; and the individual’s 
capacity to represent him-/herself.

•  Under CoE and EU law, granting legal aid to legal persons (e.g. companies) is not in 
principle impossible, but must be assessed in light of the relevant national rules and 
the situation of the legal person concerned.

170  ECtHR, Airey v. Ireland, No. 6289/73, 9 October 1979, para. 26.

171  CJEU, C-279/09, DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v. Bundesrepub-

lik Deutschland, 22 December 2010, para. 48. 

172  FRA (2011), Access to justice in Europe: an overview of challenges and opportunities, p. 47.

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Handbook on European law relating to access to justiceLegal aid

3.1.1.  Scope of application

Under CoE and EU law, the right of access to a court (arising from the right to 
a fair hearing) should be effective for all individuals, regardless of their finan-
cial means. This requires states to take steps to ensure equal access to pro-
ceedings; for example, by setting up appropriate legal aid systems.173 Legal aid 
can also facilitate the administration of justice because unrepresented litigants 
are frequently unaware of procedural rules and require considerable assistance 
from courts, which can cause delays.

Promising practice

Providing legal aid to vulnerable groups

To ensure access to free legal aid for Roma in Hungary, the Ministry of Justice 
and Law Enforcement has been operating the Roma Antidiscrimination Network 
Service  (Roma  Anti-diszkriminációs  Ügyfélszolgálati  Hálózat)  since  2001.  The 
lawyers  participating  in  the  network  provide  free  legal  aid  (offering  legal 
advice,  drafting  legal  documents,  initiating  lawsuits  and  representing  clients 
in  court)  in  cases  where  their  clients’  rights  were  infringed  because  of  their 
Roma  origin.  The  ministry  covers  the  financial  resources  required  to  operate 
the network (lawyers’ fees) and the costs of initiating lawsuits.

Source: FRA (2011), Access to justice in Europe: an overview of challenges and opportunities, 
p. 50.

It is possible for an individual to have effective access to courts when appear-
ing before a high court if the guidance provided by the procedural rules and 
court directions, together with some legal advice and assistance, is sufficient 
to provide them an effective opportunity to put forward their case.174 What is 
required to ensure effective access to the courts depends on the facts of a par-
ticular case (see also Section 4.3 on the right to self-representation).

Under CoE law, there is no obligation to provide legal aid for all proceedings 
involving civil rights and obligations175 (see Section 2.1 for the definition of 
this term). Failure to provide an applicant with the assistance of a lawyer may 

173  Council of Europe, Committee of Ministers (1978), Resolution 78(8) on legal aid and advice, 

2 March 1978.

174  ECtHR, A. v. the United Kingdom, No. 35373/97, 17 December 2002, para. 97.

175  ECtHR, Del Sol v. France, No. 46800/99, 26 February 2002, para. 20.

59

breach Article 6 of the ECHR where such assistance is indispensable for effec-
tive access to court, either because legal representation is compulsory (as is 
the case for various types of litigation), or because a case’s applicable pro-
cedure is particularly complex.176 Legal systems may establish selection pro-
cedures for determining whether legal aid will be granted in civil cases, but 
these may not function in an arbitrary or disproportionate manner, or impinge 
on the essence of the right to access court. For instance, refusing legal aid 
on the ground that an appeal did not, at the time of application, appear to be 
well-founded may in some circumstances impair the very essence of an appli-
cant’s right to a tribunal.177 

Example: In Airey v. Ireland,178 the applicant sought judicial separation from 
her husband but was unable to obtain a judicial order because she could 
not afford to retain a lawyer without legal aid.

The ECtHR confirmed that, although Article 6 (1) of the ECHR does not ex-
plicitly provide for legal aid in civil proceedings, states may be compelled 
to provide it when legal assistance is indispensable for securing effective 
access to a court. This does not apply to all cases concerning civil rights 
and obligations. Much depends on the particular circumstances of each 
case. In the present case, the relevant factors in favour of granting legal 
aid were: the complexity of the procedure and of the issues of law; the 
need to establish facts through expert evidence and the examination of 
witnesses; and that this was a marital dispute entailing emotional involve-
ment. The Court found a violation of Article 6 of the ECHR.

Under CoE law, granting legal aid to legal persons (for example, companies) is 
not in principle impossible, but must be assessed in light of the relevant na-
tional rules and the situation of the company concerned. The ECtHR has noted 
that there is a lack of “consensus or even a consolidated tendency” among 
states on this issue.179 A legal aid scheme available only to non-profit-making 
legal persons does not violate the right of access to justice if there is an ob-

176  ECtHR, P., C. and S. v. The United Kingdom, No. 56547/00, 16 October 2002, paras. 88-91.

177  ECtHR, Aerts v. Belgium, No. 25357/94, 30 July 1998. Following this decision, Belgium amended 

the law to restrict refusals to manifestly unfounded applications.

178  ECtHR, Airey v. Ireland, No. 6289/73, 9 October 1979, para. 26.

179  ECtHR, Granos Organicos Nacionales S.A. v. Germany, No. 19508/07, 22 March 2012, para. 47 

and 53.

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Handbook on European law relating to access to justiceLegal aid

jective and reasonable justification for the restriction (for example, because 
profit-making companies are able to deduct the legal costs from their tax 
obligations).180

Also, under CoE law, the European Agreement on the Transmission of Appli-
cations for Legal Aid allows people who habitually reside in one State Party 
to apply for legal aid in civil, commercial or administrative matters in another 
State Party to the agreement.181

Under EU law, Article 47 of the EU Charter of Fundamental Rights provides 
a right to legal aid to those who lack sufficient resources so far as this is nec-
essary to ensure effective access to justice. Article 47 applies to proceedings 
relating to all rights and freedoms arising from EU law. The Explanations to the 
Charter confirm that legal aid must be available “where the absence of such 
aid would make it impossible to ensure an effective remedy”.182 The Explana-
tions to Article 52 (3) of the EU Charter of Fundamental Rights also confirm 
that Article 47 corresponds to Article 6 of the ECHR. This explicit connection 
means that the cases mentioned under CoE law are relevant in EU law (see 
Chapter 1).183

It is for national courts to ascertain whether particular conditions on granting 
legal aid constitute unfair restrictions of the right of access to a court.184 Re-
strictions must not constitute “a disproportionate and intolerable interference” 
on the right itself (see also Chapter 6 on legitimate restrictions).185

180  ECtHR, VP Diffusion Sarl v. France, No. 14565/04, 26 August 2008.

181  Council of Europe, European Agreement on the Transmission of Applications for Legal Aid, CETS 

No. 92, 1977.

182  Explanations relating to the EU Charter of Fundamental Rights, OJ 2007 C303/17.

183  EU Charter of Fundamental Rights, Art. 52 (3). See also CJEU, C-619/10, Trade Agency Ltd v. 

Seramico Investments Ltd, 6 September 2012, para. 52.

184  CJEU, C-156/12, GREP GmbH v. Freistaat Bayern, 13 June 2012.

185  On restrictions on defence rights, see CJEU, C-418/11, Texdata Software GmbH, 26 Septem-

ber 2013, para. 84. See also EU Charter of Fundamental Rights, Art. 52 (1).

61

Example: In DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH 
v. Bundesrepublik Deutschland,186 DEB, an energy providing company, in-
tended to bring a claim against the German state for delaying the imple-
mentation of two directives, which it claimed led to financial losses.187 It 
said it lacked the means to pay the court fees or the lawyer required by 
the applicable Code of Procedure because of these losses. Litigants were 
required to arrange legal representation, but legal aid for legal persons 
was only available in ‘exceptional circumstances’. The German court re-
ferred the issue to the CJEU.

The CJEU considered the ECtHR case law. It noted that granting legal aid 
to legal persons was not in principle impossible, but it must be assessed 
in light of the applicable rules and the company’s situation. In assessing 
requests for aid, national courts must consider: (i) the subject-matter of 
the litigation; (ii) whether the applicant had a reasonable prospect of suc-
cess; (iii) the importance of what was at stake for the applicant; (iv) the 
complexity of the applicable law and procedure; (v) the applicant’s ca-
pacity to represent himself effectively; and (vi) whether the costs of the 
proceedings might represent an insurmountable obstacle to accessing the 
courts. Regarding legal persons specifically, courts may take into account: 
(i) the form of the legal person in question and whether it is profit-making 
or non-profit-making; (ii) the financial capacity of the partners or share-
holders; and (iii) the ability of those partners or shareholders to obtain the 
sums necessary to institute legal proceedings. Under the principle of ef-
fective judicial protection enshrined in Article 47 of the EU Charter of Fun-
damental Rights, it is not impossible for legal persons to receive legal aid.

Under EU law, specific secondary law creates standards for legal aid in 
cross-border civil cases.188 For example, the Legal Aid Directive establishes the 

186  CJEU, C-279/09, DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v. Bundesrepub-

lik Deutschland, 22 December 2010, paras. 52–54 and 62.

187  Directive 98/30/EC of the European Parliament and of the Council of 22 June 1998 concerning 

common rules for the internal market in natural gas, OJ 1998 L 204, and Directive 2003/55/EC of 
the European Parliament and of the Council of 26 June 2003 concerning common rules for the 
internal market in natural gas and repealing Directive 98/30/EC, OJ 2003 L 176.

188  See also Commission Decision 2005/630/EC of 26 August 2005 establishing a form for the 

transmission of legal aid applications under Council Directive 2003/8/ECs, OJ 2005 L 225 and 
Commission Decision 2004/844/EC of 9 November 2004 establishing a form for legal aid appli-
cations under Council Directive 2003/8/EC to improve access to justice in cross-border disputes 
by establishing minimum common rules relating to legal aid for such disputes (notified under 
document number C(2004) 4285), OJ 2004 L 365.

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Handbook on European law relating to access to justiceLegal aid

principle that persons who do not have sufficient resources to defend their 
rights in law are entitled to appropriate legal aid.189 It outlines what services 
must be provided for legal aid to be considered appropriate: for example, ac-
cess to pre-litigation advice, legal assistance and representation in court, and 
exemption from – or assistance with – the cost of proceedings, including costs 
connected with the cross-border nature of the case. EU law also contains spe-
cific provisions on legal assistance and legal aid in relation to asylum.190 The 
principle of effective judicial protection requires Member States to ensure that 
the objectives of these EU instruments are met.

3.1.2.  Financial and merit tests

In terms of the financial means test, the ECtHR has said that there will be 
no violation of Article 6 (1) if an applicant falls outside the legal aid scheme 
because his/her income exceeds the financial criteria, provided the essence of 
the right of access to a court is not impaired.191

States are not obliged to spend public funds to ensure total equality of arms 
between the assisted person and the opposing party, “as long as each side 
is afforded a reasonable opportunity to present his or her case under condi-
tions that do not place him or her at a substantial disadvantage vis-à-vis the 
adversary”.192

189  Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross-bor-

der disputes by establishing minimum common rules relating to legal aid for such disputes, 
OJ 2003 L 026.

190  Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in 
Member States for granting and withdrawing refugee status, OJ 2005 L 326 (Asylum Proce-
dures Directive), Articles 10 and 15; Directive 2013/32/EU of the European Parliament and 
of the Council of 26 June 2013 on common procedures for granting and withdrawing inter-
national protection, OJ 2013 L 180 (Recast Procedures Directive), Articles 8, 12, 20 and 21; 
and Regulation No. 604/2013 of the European Parliament and of the Council of 26 June 2013 
establishing the criteria and mechanisms for determining the Member State responsible for 
examining an application for international protection lodged in one of the Member States by 
a third-country national or a stateless person (recast), OJ 2013 L 180/31, Art. 27 (5) and (6). 
See also FRA (2014), Handbook on European law relating to asylum, borders and immigration, 
Luxembourg, Publications Office, pp. 113-114.

191  ECtHR, Glaser v. the United Kingdom, No. 32346/96, 19 September 2000, para. 99. See also 

ECtHR, Santambrogio v. Italy, No. 61945/00, 21 September 2004, para. 58 (the applicant’s 
family paid for representation).

192  ECtHR, Steel and Morris v. the United Kingdom, No. 68416/01, 15 February 2005, para. 62. 

63

Refusing to provide legal aid on the merits – because of insufficient prospects 
of success, or because of a claim’s frivolous or vexatious nature (for example, 
the claim is brought merely to cause annoyance) – may also be legitimate.193 
To avoid arbitrariness, a legal aid system should establish a fair mechanism 
for selecting cases likely to benefit.194 It is for states to establish systems that 
comply with the ECHR.195 Failing to make a formal decision on a legal aid re-
quest may violate Article 6 (1).196

Under CoE and EU law, whether the interests of justice require granting legal 
aid to an individual depends on factors such as:

• 

the importance of the case to the individual;

• 

the complexity of the case;

• 

the individual’s capacity to represent him-/herself.

For example, the complexity of the procedures or legal or factual issues in a case 
may give rise to the need for legal aid. It may also be required if the absence of 
legal aid infringes “the very essence” of the applicants’ right to access a court 
(see Section 4.1.2 on practical and effective legal assistance).197 The ECtHR also 
takes into account statutory requirements for legal representation.198

The specific circumstances of each case are important. The key test is wheth-
er an individual “would be able to present his case properly and satisfacto-
rily without the assistance of a lawyer”.199 For example, in cases concerning 
issues of particular importance to an individual (such as contact with their chil-
dren), legal aid may be required, particularly if an individual is vulnerable (for 
example, has mental health problems).200 Legal aid may also be obligatory in 

193  ECtHR, Staroszczyk v. Poland, No. 59519/00, 22 March 2007, para. 129. See also ECtHR, Steel and 

Morris v. the United Kingdom, No. 68416/01, 15 February 2005, para. 62. 

194  ECtHR, Gnahoré v. France, No. 40031/98, 19 September 2000, para. 41.

195  ECtHR, Siałkowska v. Poland, No. 8932/05, 22 March 2007, para. 107.

196  ECtHR, A.B. v. Slovakia, No. 41784/98, 4 March 2003, paras. 61-63.

197  ECtHR, Mirosław Orzechowski v. Poland, No. 13526/07, 13 January 2009, para. 22.

198  ECtHR, Airey v. Ireland, No. 6289/73, 9 October 1979, para. 26. 

199  ECtHR, McVicar v. the United Kingdom, No. 46311/99, 7 May 2002, para. 48.

200  ECtHR, Nenov v. Bulgaria, No. 33738/02, 16 July 2009, para. 52.

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Handbook on European law relating to access to justiceLegal aid

complex actions requiring ongoing representation by an experienced lawyer.201 
The existence of great disparities in the legal assistance available to parties 
(such as individuals taking on multi-national corporations) may also violate Ar-
ticle 6 of the ECHR.202

Example: In McVicar v. the United Kingdom,203 the applicant published an 
article suggesting a well-known athlete used performance-enhancing 
drugs. The athlete brought a libel action. The applicant, who was not rep-
resented, lost the case and was ordered to pay the costs of the action. He 
complained to the ECtHR that the unavailability of legal aid violated his 
right of access to a court. He was a defendant, so the question of legal aid 
related to the fairness of proceedings.

The ECtHR decided that whether legal representation was required de-
pended on the specific circumstances of the case, and, in particular, upon 
whether the individual would be able to present his case properly and sat-
isfactorily without the assistance of a lawyer. The principles applied to the 
defendant in this case were identical to those applied in Airey v. Ireland. 
The libel action was brought by a comparatively wealthy and famous indi-
vidual before the High Court. The applicant was required to call witnesses 
and scrutinise evidence in a trial that lasted over two weeks. On the other 
hand, he was a well-educated and experienced journalist who would have 
been capable of formulating cogent arguments in court. In such circum-
stances, the Court found no violation of Article 6 (1) of the ECHR.

201  ECtHR, Steel and Morris v. the United Kingdom, No. 68416/01, 15 February 2005, para. 69.

202  Ibid.

203  ECtHR, McVicar v. the United Kingdom, No. 46311/99, 7 May 2002, paras. 48–53.

65

Promising practice

Offering online legal aid to secure access to justice

In Spain, the General Council of Spanish Bars successfully implemented a system 
allowing applicants to request, through a single online entry point, judicial aid 
for  legal  costs  and  the  designation  of  a  lawyer.  This  spares  applicants  from 
having  to  gather  various  documentation  to  support  their  applications  and 
dramatically reduces the time it takes to process applications.

Source: 2014 Crystal Scales of Justice Prize organised jointly by the Council of Europe and the 
European Commission.

3.2.  Legal aid in criminal proceedings

Key points

•  The right to legal assistance in criminal proceedings is guaranteed under Article 6 (3) (c) 

of the ECHR and Article 48 (2) of the EU Charter of Fundamental Rights.

•  Granting legal aid is subject to a financial means and merit test (interests of justice).

•  Individuals have to show that they do not have sufficient means. There is no definition 
of ‘sufficient means’. The accused or suspected person bears the burden of proving 
a lack of means.

•  The ‘interests of justice’ test includes consideration of the seriousness of the offence 
and the severity of the potential sentence, the complexity of the case and the defend-
ant’s personal situation. Where liberty is at stake, the interests of justice call for legal 
representation.

3.2.1.  Scope of application

Under CoE law, an explicit right to legal aid in criminal proceedings is set out in 
Article 6 (3) (c) of the ECHR. This provides that everyone charged with a crim-
inal offence (see Section 2.1 for the meaning of criminal charge) has a right to 
free legal aid if they do not have ‘sufficient means’ to pay for legal assistance 
(the financial or means test), where the ‘interests of justice’ so require (the 
interests of justice test). The right of access to a lawyer in criminal proceedings 

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Handbook on European law relating to access to justiceLegal aid

applies throughout the entire proceedings, from police questioning to the ap-
peal (see Section 4.2.1 on the scope of the right to legal assistance).204

Article 6 (3) (c) of the ECHR also sets out the right to be defended by a lawyer 
of one’s own choosing, which can be subjected to limitations if the interests of 
justice so require (see Section 4.2.3 on legal assistance of one’s own choosing). 
This means that there is no absolute right to choose one’s own court-appointed 
legal aid lawyer. An individual who requests a change of legal aid lawyer must 
present evidence that the lawyer failed to perform satisfactorily.205 Acceptable 
limitations on the choice of lawyer can include requiring specialist lawyers for 
specialist proceedings.206

Under EU law, in addition to the rights protected under Article 47, Article 48 (2) 
of the EU Charter of Fundamental Rights guarantees respect for the rights of 
the defence of anyone who has been charged. The Explanations to the Char-
ter confirm that Article 48 (2) has the same meaning as Article 6 (3) of the 
ECHR.207 Thus, the ECtHR case law outlined below is relevant for purposes 
of Article 48. In terms of EU secondary legislation, the European Council has 
agreed to strengthen by legislation the procedural rights of suspects or ac-
cused persons in criminal proceedings.208 This includes a Proposal for a direc-
tive on provisional legal aid for suspects or accused persons deprived of liberty 
and for legal aid in European arrest warrant proceedings.209 This would oblige 
EU Member States to provide without delay provisional legal aid to persons 
who are deprived of liberty – and before questioning. The provisional aid would 
apply until a decision on eligibility for legal aid can be made. The Commission 
has also issued a Recommendation on the right to legal aid for suspects or 
accused persons.210 This provides non-binding guidance on the financial and 
merits tests as well as on the quality and effectiveness of legal aid.

204  ECtHR, Salduz v. Turkey [GC], No. 36391/02, 27 November 2008.

205  ECtHR, Lagerblom v. Sweden, No. 26891/95, 14 January 2003, para. 60. 

206  For example, ECtHR, Meftah and Others v. France [GC], Nos. 32911/96, 35237/97 and 34595/97, 

26 July 2002, para. 47. 

207  Explanations relating to the EU Charter of Fundamental Rights, OJ 2007 C303/17.

208  The Stockholm Programme, OJ 2010 C 115.

209  See European Commission (2013), Proposal for a Directive of the European Parliament and of 

the Council on provisional legal aid for suspects or accused persons deprived of liberty and 
legal aid in European arrest warrant proceedings, COM(2013) 824 final, Brussels.

210  See European Comission, Recommendation of 27 November 2013 on the right to legal aid for 

suspects or accused persons in criminal proceedings, OJ 013 C 378.

67

3.2.2.  Financial means test

The ECtHR has not provided a definition of ‘sufficient means’. The particular 
circumstances of each case will be taken into account to determine whether 
a defendant’s financial circumstances justify granting legal aid. The accused or 
suspected person bears the burden of proving insufficient means.211 This does, 
however, not have to be proven beyond all doubt.212 All the evidence must be 
considered, including evidence of the applicant’s status (such as whether s/he 
has spent time in custody), information provided by the individual, and any 
evidence contradicting the applicant.213

Determining this question is a matter for national courts, which must assess 
the evidence in accordance with the requirements of Article 6 (1).214

Example: In Tsonyo Tsonev v. Bulgaria (No. 2),215 the applicant was convict-
ed of inflicting bodily harm and breaking into someone’s home. He was 
sentenced to 18 months’ imprisonment. The applicant requested that he 
be appointed counsel for his appeal to the Supreme Court of Cassation, but 
this was refused without specific reasons. The applicant complained that 
this breached his fair trial rights.

The ECtHR noted that it was difficult to assess whether the applicant 
lacked sufficient means to pay for legal assistance. It held, however, that 
certain indications suggested that this was the case: first, counsel had 
been appointed for the applicant in the previous proceedings, and second, 
the applicant expressly asserted that he could not afford to retain counsel. 
The Court held that, given the absence of clear indications to the contrary, 
the applicant did lack sufficient means to pay for his legal representation. 
It concluded that this violated Article 6 (1) and (3) of the ECHR.

Example: In Twalib v. Greece, 216 the applicant had been in prison for three years 
and was represented by court-appointed counsel at trial and by a humanitari-

211  ECtHR, Croissant v. Germany, No. 13611/88, 25 September 1992, para. 37.

212  ECtHR, Pakelli v. Germany, No. 8398/78, 25 April 1983, para. 34

213 

Ibid.

214  ECtHR, R. D. v. Poland, Nos. 29692/96 and 34612/97, 18 December 2001, para. 45.

215  ECtHR, Tsonyo Tsonev v. Bulgaria (No. 2), No. 2376/03, 14 January 2010.

216  ECtHR, Twalib v. Greece, No. 24294/94, 9 June 1998, para. 51.

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Handbook on European law relating to access to justiceLegal aid

an organisation on appeal. These factors amounted to ‘strong indications’ that 
he lacked the financial means to pay for legal assistance. The state’s failure to 
provide him with legal aid in proceedings concerning his appeal to the Court of 
Cassation violated his rights guaranteed under Article 6 of the ECHR.

3.2.3.  Interests of justice test

Determining whether the ‘interests of justice’ (merits) require the provision of 
legal aid involves taking three factors into account, namely:

• 

the seriousness of the offence and the severity of the potential sentence;

• 

the complexity of the case;

• 

the defendant’s social and personal situation. 217

All three factors should be considered, but they do not necessarily need to be 
added together; any one of the three can justify granting legal aid.

Example: In Zdravko Stanev v. Bulgaria,218 the applicant was unemployed. 
He complained that he was refused legal aid in criminal proceedings for 
forging documents in a civil action. He was convicted of the offence and 
fined €250. He was also ordered to pay €8,000 in damages.

The ECtHR noted that the applicant was initially at risk of a prison sen-
tence; although none was imposed, the damages award was significant 
in view of his financial situation. The applicant had a university degree, 
but no legal training. The proceedings were not of the highest level of 
complexity but involved issues regarding the rules on admissibility of 
evidence, the rules of procedure and the meaning of intent. Additionally, 
the criminal offence with which the applicant was charged involved the 
impugnment of a senior member of the judiciary and called into question 
the integrity of the judicial process in Bulgaria. A qualified lawyer would 
undoubtedly have been in a position to plead the case with greater clarity 
and to counter more effectively the arguments raised by the prosecution. 
The Court ultimately found a violation of Article 6 (3) (c) of the ECHR.

217  ECtHR, Quaranta v. Switzerland, No. 12744/87, 24 May 1991.

218  ECtHR, Zdravko Stanev v. Bulgaria, No. 32238/04, 6 November 2012, para. 40.

69

The accused or suspected person’s personal circumstances are important. The 
interests of justice test indicates that free legal assistance may be required for 
persons considered vulnerable, such as children, persons with mental health 
problems and refugees.219 Where “the proceedings were clearly fraught with 
consequences for the applicant” and the case is complex, legal aid should be 
granted.220 Even where applicants are educated persons who can understand 
the proceedings, the important issue is whether they can actually defend 
themselves without a lawyer.221 Applicants do not have to show that the ab-
sence of legal aid caused “actual damage” to their defence; they must only 
show that it appears “plausible in the particular circumstances” that a lawyer 
would be of assistance.222

Where an individual’s liberty is at stake, the interests of justice in principle call 
for legal representation.223 This obligation arises even if there is only a possibil-
ity of a custodial sentence.224

During the appellate stage of criminal proceedings, the following factors are 
important for the interests of justice test:

• 

the nature of the proceedings;

• 

the capacity of an unrepresented appellant to present a particular legal 
argument;

• 

the severity of the sentence imposed by the lower courts.

Where substantial issues of law arise in appeal hearings, free legal assistance 
has been required.225 Once it becomes clear that an appeal raises an issue 
of complexity and importance, the applicant should be given legal aid in the 

219  ECtHR, Quaranta v. Switzerland, No. 12744/87, 24 May 1991, paras. 32–36.

220  ECtHR, Pham Hoang v. France, No. 13191/87, 25 September 1992, paras. 40–41. 

221  ECtHR, Zdravko Stanev v. Bulgaria, No. 32238/04, 6 November 2012, para. 40.

222  ECtHR, Artico v. Italy, No. 6694/74, 13 May 1980, paras. 34–35.

223  ECtHR, Benham v. the United Kingdom, No. 19380/92, 10 June 1996, para. 61. 

224  See, for example, ECtHR, Quaranta v. Switzerland, No. 12744/87, 24 May 1991, para. 33; ECtHR, 
Perks and others v. the United Kingdom, Nos. 25277/94, 25279/94, 25280/94, 25282/94, 
25285/94, 28048/95, 28192/95 and 28456/95, 12 October 1999.

225  ECtHR, Pakelli v. Germany, No. 8398/78, 25 April 1983, paras. 36–38.

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Handbook on European law relating to access to justiceLegal aid

interests of justice.226 The ECtHR has stated, however, that the interests of jus-
tice do not require the automatic granting of legal aid whenever a convicted 
person, with no objective likelihood of success, wishes to appeal after receiv-
ing a fair trial at first instance in accordance with Article 6 of the ECHR.227

Finally, it should be noted that the mere provision of legal assistance does not 
mean that it will be effective. For example, an appointed lawyer may become 
ill or fail to perform his/her duties.228 The state cannot be held responsible for 
every shortcoming on the part of a lawyer appointed for legal aid purposes. 
However, a legal aid lawyer’s manifest failure to mount a practical and effec-
tive defence may violate Article 6.229 This is further considered in Chapter 4, 
which covers the right to be advised, defended and represented.

226  ECtHR, Granger v. the United Kingdom, No. 11932/86, 28 March 1990, para. 47.

227  ECtHR, Monnell and Morris v. the United Kingdom, Nos. 9562/81 and 9818/82, 2 March 1987, 

para. 67.

228  ECtHR, Artico v. Italy, No. 6694/74, 13 May 1980.

229  ECtHR, Czekalla v. Portugal, No. 38830/97, 10 October 2002, paras. 63–66. 

71

4 

Right to be advised, 
defended and represented

EU

Issues covered

CoE

Right to be advised, defended and represented in non-criminal proceedings

Charter of Fundamental Rights, 
Article 47 (right to an effective rem-
edy) and Article 48 (2) (presumption 
of innocence and right of defence)

Scope of 
application

ECHR, Article 6 (1) and 
Article 6 (3) (b) and (c)

‘Practical and 
effective’ access 
to the court

ECtHR, Bertuzzi v. France, 
No. 36378/97, 2003
ECtHR, Anghel v. Italy, 
No. 5968/09, 2013

Right to be advised, defended and represented in criminal proceedings

Directive 2013/48/EU on the right 
of access to a lawyer in criminal 
proceedings
Directive 2013/48/EU on the right 
of access to a lawyer in criminal 
proceedings, Articles 3 (3) (b)

Scope of 
application

ECtHR, Salduz v. Turkey [GC],  
No. 36391/02, 2008

Quality of legal 
assistance

ECtHR, Aras v. Turkey 
(No. 2), No. 15065/07, 2014

Legal assistance 
of one’s own 
choosing
Adequate time 
and facilities to 
prepare one’s 
defence

ECtHR, Lagerblom v. Swe-
den, No. 26891/95, 2003

ECHR, Article 6 (3) (b)
ECtHR, Lanz v. Austria, 
No. 24430/94, 2002

Charter of Fundamental 
Rights, Article 48 (2)
Directive 2013/48/EU on the right of 
access to a lawyer in criminal pro-
ceedings, Articles 3 (1), 3 (3) (a) and 4
Directive 2012/13/EU on the right to 
information in criminal proceedings
Directive 2010/64/EU on the right 
to interpretation and translation in 
criminal proceedings, Article 2 (2)

73

EU
Directive 2013/48/EU on the right of 
access to a lawyer, Article 9

Issues covered
Waiver

CoE

ECtHR, Pishchalnikov v. 
Russia, No. 7025/04, 2009

Right to self-representation

Scope of 
application

ECHR, Article 6 (3) (c)
ECtHR, Galstyan v. Armenia, 
No. 26986/03, 2007

This chapter summarises CoE and EU law on the right to be advised, defend-
ed and represented in non-criminal proceedings (Section 4.1) and criminal pro-
ceedings (Section 4.2).230 The scope of the right is considered together with 
the requirement for legal assistance to be effective. In relation to criminal pro-
ceedings, additional and associated rights – such as the right to legal assis-
tance of one’s own choosing (Section 4.2.3) and the right to have adequate 
time and facilities to prepare one’s defence (Section 4.2.4) – are also explored. 
This chapter also addresses circumstances in which the right to legal assistance 
may be waived (Section 4.2.5) and the scope of the right to self-representation 
(Section 4.3).

4.1.  Right to be advised, defended and 

represented in non-criminal proceedings

Key points

•  Article 6 of the ECHR explicitly guarantees the right to be advised, defended and rep-
resented  in  criminal  proceedings  but  not  in  non-criminal  proceedings.  Article  47  of 
the EU Charter of Fundamental Rights explicitly provides for this right for situations in 
which Member States are implementing (or derogating from) EU law.

•  The  right  to  be  advised,  defended  and  represented  in  non-criminal  proceedings  is 
not absolute; reasonable restrictions may be placed thereon. Whether providing le-
gal representation is necessary in non-criminal proceedings depends on the specific 
circumstances of each case – particularly the nature of the case and the applicant’s 
background, experience and level of emotional involvement.

230  On legal assistance in asylum and return procedures, see FRA (2014), Handbook on European 
law relating to asylum, borders and immigration, pp. 113-114. On children’s right to a lawyer in 
criminal justice and alternative (non-judicial) proceedings, see FRA (2015), Handbook of Euro-
pean law relating to the rights of the child, Luxembourg, Publications Office, pp. 195–218.

74

Handbook on European law relating to access to justiceRight to be advised, defended and represented

4.1.1.  Scope of application

Promising practice

Offering a variety of forms of legal advice

Wikivorce  provides  free  advice  and  support  to  over  50,000  people  a  year, 
which  means  it  helps  one  in  three  divorces  in  the  United  Kingdom.  It  is  the 
largest  online  divorce  support  community  in  the  world,  with  over  100,000 
registered members. It is an award-winning social enterprise that is volunteer-
run,  government-sponsored  and  charity-funded.  It  offers  various  forms  of 
legal services, including: a discussion forum; free guides to divorce, mediation, 
finances,  child  contact  and  residence;  a  free  DIY  divorce  guide;  free  expert 
advice via a telephone helpline that is open seven days a week; and chat rooms 
for instant support.

See www.wikivorce.com/divorce, mentioned in Smith, R. (2014), Digital delivery of legal services 
to people on low incomes, The Legal Education Foundation.

The right to be advised, defended and represented helps individuals have a fair 
trial and enforce their rights. The right to a fair trial in non-criminal proceedings 
includes the right of access to a court (see Section 2.1.1). Individuals may re-
quire – and hence the state may be obliged to provide – legal representation or 
assistance to ensure that they can access courts and have fair trials.231

Under CoE law, in disputes relating to ‘civil rights or obligations’ (defined in 
Section 2.1), these requirements arise under Article 6 (1) of the ECHR.232 They 
may arise at any point in proceedings to which Article 6 applies – from the 
institution of proceedings to the execution of judgment. Although Article 6 
does not guarantee a right of appeal, it applies to appellate proceedings where 
they exist.233 This means that the right to legal assistance may also apply to 
appellate proceedings.

Under EU law, the right to be advised, defended and represented in non-
criminal proceedings is specifically set out in Article 47 of the EU Charter of 

231  ECtHR, Airey v. Ireland, No. 6289/73, 9 October 1979, para. 26.

232  ECtHR, Ringeisen v. Austria, No. 2614/65, 16 July 1971, para. 94. 

233  ECtHR, T. v. the United Kingdom [GC], No. 24724/94, 16 December 1999, and V. v. the United 

Kingdom [GC], No. 24888/94, 16 December 1999.

75

Fundamental Rights. The right is also acknowledged as a general principle of 
EU law in CJEU case law.234 For further discussion of the connection between 
Article 6 of the ECHR and Article 47 of the Charter, see the Figure in Chapter 1.

Under CoE law and EU law, the right is not absolute, and reasonable restrictions 
may be placed on it (see Chapter 6).

4.1.2.  Practical and effective legal assistance

Under CoE law, Article 6 (1) may compel states to provide the assistance of 
a lawyer to secure effective access to court. In this way, legal assistance and 
legal aid are closely connected in the ECtHR’s case law.235 The question of 
whether Article 6 requires providing legal representation in non-criminal pro-
ceedings depends on the specific circumstances of each case.236 In particular, 
the Court will consider whether an individual would be able to present his/
her case properly and satisfactorily without the assistance of a lawyer.237 The 
nature of the case, as well as the applicant’s background, experience and level 
of emotional involvement, are significant issues for the Court to consider when 
determining questions of legal assistance.238

Example: In Bertuzzi v. France, 239 the applicant was granted legal aid to 
bring an action for damages against a lawyer. However, all three lawyers 
assigned to his case sought to withdraw, owing to personal links with the 
lawyer the applicant wished to sue.

The ECtHR held that the court that permitted the applicant to represent 
himself in the proceedings against the legal practitioner did not afford him 
access to a court under conditions that would secure his effective enjoy-
ment of his rights, in breach of Article 6 (1) of the ECHR.

234  CJEU, C-305/05, Ordre des barreaux francophones et germanophone and others v. Conseil des 

ministres, 26 June 2007, para. 31.

235  ECtHR, Airey v. Ireland, No. 6289/73, 9 October 1979, para. 26. 

236  ECtHR, Steel and Morris v. the United Kingdom, No. 68416/01, 15 February 2005, para. 61.

237  ECtHR, McVicar v. the United Kingdom, No. 46311/99, 7 May 2002, para. 48.

238  Ibid., paras. 49-52.

239  ECtHR, Bertuzzi v. France, No. 36378/97, 13 February 2003, para. 31.

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Handbook on European law relating to access to justiceRight to be advised, defended and represented

States must be diligent in securing the “genuine and effective” enjoyment of 
Article 6 rights.240

Example: In Anghel v. Italy,241 pursuant to the Hague Convention on the 
Civil Aspects of International Child Abduction, the applicant asked the Ro-
manian Minister of Justice to help him secure the return of his son, who 
had been taken to Italy by his mother. As a result, a prosecutor initiated 
return proceedings in an Italian court, which concluded that the child was 
not wrongfully removed. The applicant sought to appeal the order but, 
because he was repeatedly given incomplete or misleading information 
about the appellate procedure, did not do so within the prescribed time 
limit.

The ECtHR held unanimously that there was a breach of Article 6. The 
Italian authorities’ delay in providing relevant and correct guidance, 
coupled with a lack of practical and effective representation, impaired the 
very essence of the applicant’s right of access to court.

Under EU law, the CJEU considered the right to choose a lawyer in the context 
of the directive relating to legal expenses insurance without commenting on 
fundamental rights, and it has not discussed the scope of Article 47 on this 
issue.242 However, before the EU Charter of Fundamental Rights was adopted, 
the CJEU established that the right to legal representation and the privileged 
nature of correspondence between lawyers and clients are a fundamental part 
of the EU’s legal order and must be respected from the preliminary-inquiry 
stage.243 Further, as noted, the ECtHR’s case law is relevant to the interpreta-
tion of Article 47’s scope (see the Figure in Chapter 1).

240  ECtHR, Staroszczyk v. Poland, No. 59519/00, 22 March 2007, para. 128.

241  ECtHR, Anghel v. Italy, No. 5968/09, 25 June 2013, para. 64.

242  See CJEU, C-442/12, Jan Sneller v. DAS Nederlandse Rechtsbijstand Verzekeringsmaatschappij 

NV, 7 November 2013, concerning Directive 87/344/EEC of 22 June 1987 on the coordination of 
laws, regulations and administrative provisions, OJ 1987 L 185, Art. 4 (1).

243  CJEU, Joined cases C-46/87 and C-227/88, Hoechst AG v. Commission of the European Communi-

ties, 21 September 1989, para. 15.

77

4.2.  Right to be advised, defended and 
represented in criminal proceedings

Key points

•  Article 6 (3) (c) of the ECHR and Article 48 (2) of the EU Charter of Fundamental Rights 

explicitly guarantee the right to legal assistance in criminal matters.

•  Article 6 (3) (b) of the ECHR sets out the right to adequate time and facilities to prepare 
one’s  defence.  This  is  closely  linked  to  Article  6  (3)  (c)  because  adequate  time  and 
facilities are required to make effective the right to legal assistance.

•  The  right  to  legal  assistance  applies  to  the  entire  proceedings,  from  the  police  in-
vestigation to the conclusion of the appeal. Access to a lawyer in the early stages of 
proceedings is particularly important.

•  The right may be subject to restrictions, provided that the restrictions do not under-

mine the essence of the right.

•  The right to legal assistance requires the provision of effective representation and not 

just the mere presence of a lawyer.

•  Waiver of the right must: (i) be established in an unequivocal manner; (ii) be attended 
by  minimum  safeguards  commensurate  to  its  importance;  (iii)  be  voluntary  and  (iv) 
constitute a knowing and intelligent relinquishment of a right. It must also be shown that 
the defendant could reasonably have foreseen the consequences of his/her conduct.

4.2.1. Scope of application

Under CoE law, Article 6 (3) (c) of the ECHR provides that everyone who is charged 
with a criminal offence has the right to “defend himself in person or through le-
gal assistance of his own choosing” (see Section 2.1 for the definition of criminal 
charge). Thus, a person charged with a criminal offence has the choice between 
defending himself/herself or being legally represented. The right to self-rep-
resentation can, however, be limited in the interests of justice (see Section 4.3). 
The right to legal assistance is also linked to the right to legal aid (see Section 3.2.1 
on legal aid in criminal proceedings) and the right, under Article 6 (3) (b) of the 
ECHR, to have adequate time and facilities to prepare one’s defence. Put simply, 
legal assistance cannot be effective if a defendant lacks the time and facilities to 
take advice and prepare his/her case properly (see Section 4.2.4).244

244  ECtHR, Goddi v. Italy, No. 8966/80, 9 April 1984, para. 31. 

78

Handbook on European law relating to access to justiceRight to be advised, defended and represented

States have discretion to choose how to secure the right to legal assistance 
in their judicial systems.245 Legal assistance can take many forms – for exam-
ple, advice during questioning, representation in court, and preparation of ap-
peals – but the right applies to the whole proceeding.246 The right to a lawyer 
at the early stages of criminal proceedings is particularly important because 
adverse inferences can be drawn from an accused or suspected person’s si-
lence.247 Access to a lawyer in the early stages also includes the right to consult 
privately with the lawyer before any questioning takes place.248

Example: In Salduz v. Turkey,249 the applicant was convicted of participating 
in an unauthorised demonstration in support of an illegal organisation, 
namely the PKK (Workers’ Party of Kurdistan). He did not have access 
to a lawyer and made statements admitting guilt during interrogation in 
police custody; he later repudiated the statements. The domestic court 
relied on the initial statements when convicting him.

The ECtHR confirmed that, for the right to a fair trial to remain “practical 
and effective”, access to a lawyer had to be provided from the first police 
interrogation. The court noted that suspects are particularly vulnerable at 
the investigation stage and that evidence gathered may determine the 
outcome of their case. Early access to a lawyer protects the privilege against 
self-incrimination and is a fundamental safeguard against ill-treatment. Any 
exception to this right must be clearly circumscribed and time-limited. Even 
where compelling reasons arise, restrictions must not unduly prejudice the 
rights of the accused. In the applicant’s case, the absence of a lawyer while 
he was in police custody irretrievably affected his defence rights, in breach 
of Article 6 (3) (c) in conjunction with Article 6 (1).

Access to a lawyer has to be effective and practical. For instance, individu-
als in police custody have to be formally acquainted with their defence rights, 
including their right to free legal assistance subject to certain conditions, but 
the police also has to provide them with practical means of contacting and 

245  ECtHR, Quaranta v. Switzerland, No. 12744/87, 24 May 1991, para. 30.

246  ECtHR, Salduz v. Turkey [GC], No. 36391/02, 27 November 2008; see also ECtHR, Yevgeniy 

Petrenko v. Ukraine, No. 55749/08, 29 January 2015, para. 89. 

247  ECtHR, John Murray v. the United Kingdom [GC], No. 18731/91, 8 February 1996, para. 66.

248  ECtHR, A.T. v. Luxembourg, No. 30460/13, 9 April 2015, para. 86.

249  ECtHR, Salduz v. Turkey [GC], No. 36391/02, 27 November 2008, paras. 54–62.

79

communicating with their defence counsel (see also Section 4.2.4). Where laws 
systematically prevent persons charged with a criminal offence from access-
ing legal assistance in police custody, Article 6 is violated, even when persons 
charged with a criminal offence remain silent.250 The lawfulness of restrictions 
on the right to legal assistance during the initial stages of police interroga-
tion should be considered in light of their overall impact on the right to a fair 
hearing.251

The right to speak to a lawyer in confidence may also be restricted, but restric-
tions require substantial justification. 252 This is a particularly important part of 
the right to legal assistance – without the ability to confer and receive confi-
dential instructions, the right loses much of its usefulness.253 The ECtHR has 
consistently held that “weighty reasons” are required to override this right; for 
example, surveillance of an applicant’s contacts with his/her lawyer may be 
justified where the applicant is suspected of being a gang member and this is 
necessary to catch the other gang members.254

Example: In Lanz v. Austria,255 the applicant was arrested on suspicion of 
fraud and provisionally detained. His contact with his lawyer during deten-
tion on remand was under surveillance because of the risk that the appli-
cant would influence witnesses or remove documents not yet seized. He 
complained that this breached his defence rights.

The ECtHR found a breach of Article 6 (3) (b) and (c) of the ECHR. The right 
to communicate with defence counsel out of hearing of a third person 
is part of the basic requirements of a fair trial in a democratic society. If 
a lawyer is unable to confer with a client, the lawyer’s assistance loses 
much of its usefulness and becomes ineffective. Surveillance by the inves-
tigating judge was a serious interference with the accused’s defence rights 
and very weighty reasons were required for its justification.

250  ECtHR, Dayanan v. Turkey, No. 7377/03, 13 October 2009, para. 33.

251  ECtHR, Pishchalnikov v. Russia, No. 7025/04, 24 September 2009, para. 67.

252  ECtHR, Sakhnovskiy v. Russia [GC], No. 21272/03, 2 November 2010, para. 97

253  ECtHR, S. v. Switzerland, Nos. 12629/87 and 13965/88, 28 November 1991, para. 48. See also 

ECtHR, Brennan v. the United Kingdom, No. 39846/98, 16 October 2001, paras. 58–63.

254  ECtHR, George Kempers v. Austria, No. 21842/93. Commission report adopted on 

14 February 1998.

255  ECtHR, Lanz v. Austria, No. 24430/94, 31 January 2002, paras. 50–52.

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Handbook on European law relating to access to justiceRight to be advised, defended and represented

Under EU law, the right to legal assistance in criminal proceedings is set out 
in Article 48 (2) of the EU Charter of Fundamental Rights. This guarantees re-
spect for the defence rights of anyone who has been charged. Just like under 
CoE law, the right is not absolute under EU law. It has, however, been recog-
nised as one of the fundamental elements of a fair trial;256 appointed lawyers 
must be given adequate time and facilities to prepare their clients’ defence 
(see Section 4.2.4).

Example: In Ordre des barreaux francophones et germanophone and 
Others v. Conseil des ministres,257 the CJEU noted that lawyers could not 
satisfactorily carry out their task of advising, defending and representing 
their clients if they were obliged to cooperate with authorities by passing 
them information obtained in the course of related legal consultations.

The right to legal assistance in criminal proceedings is also embedded in 
EU secondary law: the Directive on the right of access to a lawyer in criminal 
proceedings and in European arrest warrant proceedings,258 to which the ECtHR 
has also referred.259 Its objective is to lay down minimum rules concerning the 
rights of suspects or accused persons in criminal and European arrest warrant 
proceedings. The directive applies to suspects or accused persons in criminal 
proceedings from the “time when they are made aware by the competent 
authorities of a Member State, by official notification or otherwise, that they 
are suspected or accused of having committed a criminal offence” until the 
“conclusion of the proceedings” (that is, the final determination of the offence, 
including sentencing and appeal).260 The directive also applies to individuals 
who are not suspects but become suspects in the course of an interview.261 
However, different standards of protection apply to individuals who have not 
been deprived of their liberty; although they are free to contact, consult or be 

256  CJEU, C-7/98, Dieter Krombach v. André Bamberski, 28 March 2000, para. 39.

257  CJEU, C-305/05, Ordre des barreaux francophones et germanophone and Others v. Conseil des 

ministres, 26 June 2007, para. 32.

258  Directive 2013/48/EU of the European Parliament and of the Council of 22 October 20143 on the 
right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, 
and on the right to have a third party informed upon deprivation of liberty and to communicate 
with third persons and with consular authorities while deprived of liberty, OJ 2013 L 294/1. 
The United Kingdom and Ireland have not opted into this directive, and it does not apply to 
Denmark.

259  ECtHR, A.T. v. Luxembourg, No. 30460/13, 9 April 2015, para. 38. 

260  Directive 2013/48/EU, Art. 2 (1).

261 

Ibid., Art. 2 (3).

81

assisted by a lawyer through their own arrangements, Member States are not 
obliged “to take active steps” to ensure that they are assisted by a lawyer.262 
The directive also provides protection within European arrest warrant proceed-
ings.263 It effectively excludes “minor offences” from its protection.264

Under EU and CoE law, the right to access legal assistance is particularly im-
portant for vulnerable suspects or accused persons, such as persons with 
disabilities, migrants and children.265 States must take additional steps to pro-
mote their ability to understand and effectively participate in proceedings so 
that they can – if necessary with the assistance of an interpreter, lawyer, so-
cial worker or friend – understand the “general thrust” of what is said.266 They 
should also be able to explain their version of events to their lawyers. States 
must reduce as far as possible feelings of intimidation and ensure that chil-
dren have a broad understanding of the nature of the investigation and what 
is at stake. They must ensure that children and other vulnerable persons are 
informed of their right to legal assistance (see also Section 8.1 on persons with 
disabilities).267 In court, defendants should be able to follow what is said by 
the prosecution witnesses and be able to point out any statements with which 
they disagree.268

An EU draft directive on procedural safeguards for children accused or sus-
pected of crimes proposes mandatory access to a lawyer for children who are 
suspected or accused in criminal proceedings.269 The European Commission has 
also issued a Recommendation on procedural safeguards for vulnerable per-
sons suspected or accused in criminal proceedings, which recommends that 

262  Directive 2013/48/EU, Recital 27.

263  Ibid., Art. 10.

264  Ibid., Art. 2 (4).

265  See FRA (2015), Child friendly justice – Perspectives and experiences of professionals on chil-
dren’s participation in civil and criminal judicial proceedings in 10 EU Member States. See also 
FRA (2015), Handbook on European law relating to the rights of the child, pp. 195-218.

266  ECtHR, S.C. v. the United Kingdom, No. 60958/00, 15 June 2004, para. 29

267  ECtHR, Panovits v. Cyprus, No. 4268/04, 11 December 2008, para. 67. On persons with disa-

bilities, see also ECHR, Art. 5 (4), and ECtHR, Megyeri v. Germany, No.13770/88, 12 May 1992, 
para. 27.

268  ECtHR, S.C. v. the United Kingdom, No. 60958/00, 15 June 2004, para. 29.

269  Proposal for a Directive of the European Parliament and of the Council on procedural safe-
guards for children suspected or accused in criminal proceedings, COM(2013) 822/2, Art. 6.

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Handbook on European law relating to access to justiceRight to be advised, defended and represented

a suspect or an accused person who cannot understand proceedings should 
not be able to waive his/her right to a lawyer (see Section 4.2.5 on waiver).270

4.2.2.  Quality of legal assistance

The right to legal assistance is a right to effective assistance and representa-
tion.271 The presence of a lawyer who has no opportunity to intervene to en-
sure respect for the accused or suspected person’s rights is of no benefit to the 
accused or suspected person.272

Example: In Aras v. Turkey (No. 2),273 the applicant was arrested on sus-
picion of aggravated fraud. He was questioned without a lawyer by the 
police and made statements in connection with the offence. He was then 
brought before the public prosecutor where, without a lawyer present, the 
applicant repeated his police statement. When the applicant was brought 
before the investigating judge, the judge allowed the applicant’s lawyer to 
enter the hearing room but he was not allowed to take the floor or advise 
the applicant.

The ECtHR stated that the “mere presence” of the lawyer was not suffi-
cient to make effective the right under Article 6 (3) (c). The applicant 
should have had access to a lawyer from the first questioning. The appli-
cant’s lawyer’s passive presence in the hearing room could not be consid-
ered to have been sufficient by ECHR standards.

Under CoE law, how to conduct the defence is essentially a matter between 
the accused or suspected person and his/her lawyer, but if relevant authorities 
are alerted to a “manifest shortcoming” on the part of the lawyer, they 
should  act. 274  This  obligation  arises  only  where  the  failure  to  provide 
effective representation was “manifest or sufficiently brought to [the state’s] 
attention”.275 For example, when an appeal is deemed inadmissible due to 

270  European Commission (2013), Recommendation of 27 November 2013 on procedural safe-
guards for vulnerable persons suspected or accused in criminal proceedings, OJ 2013 C378.

271  ECtHR, Imbrioscia v. Switzerland, No. 13972/88, 24 November 1993, para. 43.

272  ECtHR, Aras v. Turkey (No. 2), No. 15065/07, 18 November 2014, para. 40.

273  Ibid.

274  ECtHR, Daud v. Portugal, No. 22600/93, 21 April 1998, para. 42.

275  ECtHR, Imbrioscia v. Switzerland, No. 13972/88, 24 November 1993, para. 41. 

83

a lawyer’s omissions, this may violate the right to a practical and effective 
defence.276 Only shortcomings imputable to state authorities can give rise to 
a violation of Article 6 (3) (c).277 For example, state liability may arise where 
a state is aware that a lawyer has failed to act for the accused.278 However, 
even serious shortcomings in the fairness of proceedings may not give rise to 
a violation if the applicant fails to raise the issue on appeal.279

Under EU law, the Directive on the right of access to a lawyer confirms that 
a suspect or an accused person have the right for his/her lawyer to “be present 
and participate effectively”.280 The lawyer’s participation must be “in accord-
ance with procedures under national law, provided that such procedures do not 
prejudice the effective exercise and essence of the right concerned”.281

4.2.3.  Legal assistance of one’s own choosing

Notwithstanding the importance of a relationship of confidence between law-
yer and client, the right to a lawyer of one’s own choosing is not absolute. It is 
necessarily subject to regulation where free legal aid is concerned because the 
state controls the criteria and financing for legal assistance (see also Chapter 3 
on legal aid).282 The right may also be subject to restrictions by way of pro-
fessional regulation; for example, different qualifications may be required for 
different levels of jurisdiction.

Example: In Lagerblom v. Sweden,283 the applicant, who was from Finland, 
requested a replacement for his legal aid lawyer. He wanted a lawyer who 
also spoke Finnish. The domestic courts rejected his request. He argued 
that this was a breach of Article 6 (3) (c) of the ECHR.

276  ECtHR, Czekalla v. Portugal, No. 38830/97, 10 October 2002, paras. 63-65;  
ECtHR, Vamvakas v. Greece (No. 2), No. 2870/11, 9 April 2015, paras. 39–43.

277  ECtHR, Tripodi v. Italy, No. 13743/88, 22 February 1994, para. 30.

278  ECtHR, Artico v. Italy, No. 6694/74, 13 May 1980, para. 33.

279  ECtHR, Twalib v. Greece, No. 24294/94, 9 June 1998.

280  Directive 2013/48/EU, Art. 3 (3) (b).

281  Ibid.

282  ECtHR, Croissant v. Germany, No. 13611/88, 25 September 1992, para. 29.

283  ECtHR, Lagerblom v. Sweden, No. 26891/95, 14 January 2003.

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Handbook on European law relating to access to justiceRight to be advised, defended and represented

The ECtHR noted that Article 6 (3) (c) entitles an accused to be defended 
by counsel “of his own choosing” but that the right cannot be considered 
absolute. When appointing defence counsel, courts must have regard to 
the accused’s wishes, but these can be overridden when there are relevant 
and sufficient grounds for holding that this is necessary in the interests 
of justice. The applicant had sufficient proficiency in Swedish to communi-
cate with his lawyer and was able to participate effectively in his trial. The 
courts were entitled to refuse him the lawyer of his choice. There was no 
violation of Article 6 of the ECHR.

Appointing professional lawyers rather than lay advocates may serve the in-
terests of justice when serious and complex charges exist.284 Additionally, the 
special nature of proceedings may justify using specialist lawyers.285

4.2.4.  Adequate time and facilities to prepare 

one’s defence

Under CoE law and EU law, the accused or suspected person is entitled to 
adequate time and facilities to prepare his/her defence. This is because 
a lawyer’s ability to provide effective legal assistance may be undermined by 
the circumstances in which s/he can meet or communicate with a client. This 
right is set out in Article 6 (3) (b) of the ECHR and included in the rights of the 
defence under Article 48 (2) of the EU Charter of Fundamental Rights.

Under CoE law, the right to effective assistance implies access to the file.286 
The file includes all documents useful for determining the appropriate legal 
characterisation.

Whether the time and facilities are adequate is assessed in light of the 
circumstances of each particular case.287 A balance must be achieved between 
ensuring that proceedings are conducted within a reasonable time (see 
Chapter 7 on the length of proceedings) and allowing sufficient time to conduct 
and prepare one’s defence. The question to be addressed is whether the overall 

284  ECtHR, Mayzit v. Russia, No. 63378/00, 20 January 2005, paras. 70–71.

285  ECtHR, Meftah and Others v. France [GC], Nos. 32911/96, 35237/97 and 34595/97, 26 July 2002, 

para. 47.

286  ECtHR, Dayanan v. Turkey, No. 7377/03, 13 October 2009. 

287  ECtHR, Iglin v. Ukraine [GC], No. 39908/05, 12 January 2012, para. 65.

85

effect of any difficulties contravened the right to a fair trial.288 For example, 
the absence of any time for consultation between the person charged with 
a criminal offence and the lawyer may amount to a violation of Article 6 (3) (b) 
because a person charged with a criminal offence cannot be properly assisted 
without this.289

Under EU law, several directives impose specific obligations on EU Member 
States (see Section 2.3.1 on the right to a fair hearing).290 For example, Arti-
cle 3 (1) of the Directive on the right of access to a lawyer requires that ac-
cess to a lawyer is provided in such time and manner so as to allow the per-
sons concerned to exercise their rights of defence practically and effectively. 
Article 3 (3) gives suspects or accused persons the right to meet in private 
and communicate with the lawyer representing them. Article 3 (4) requires 
EU Member States to make available general information to facilitate the ob-
taining of a lawyer by suspects or accused persons.

Additionally, the Directive on the right to information in criminal proceedings 
imposes obligations to inform suspects and accused persons on their rights in 
criminal proceedings, including, for example, their right to access case materi-
als to prepare their defence.291

Finally, Article 2 (2) of the Directive on the right to interpretation and trans-
lation in criminal proceedings requires interpretation to be available for com-
munication between suspected or accused persons and their legal counsel in 
direct connection with any questioning or hearing during the proceedings or 
with the lodging of an appeal or other procedural application.292

288  ECtHR, Öcalan v. Turkey [GC], No. 46221/99, 12 May 2005, para. 148.

289  ECtHR, Campbell and Fell v. the United Kingdom, Nos. 7819/77 and 7878/77, 28 June 1984, 

para. 99.

290  Directive 2013/48/EU of the European Parliament and of the Council of 22 October 20143 on the 
right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, 
and on the right to have a third party informed upon deprivation of liberty and to communicate 
with third persons and with consular authorities while deprived of liberty, OJ 2013 L 294/1. 
The United Kingdom and Ireland have not opted into this directive, and it does not apply to 
Denmark.

291  Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the 

right to information in criminal proceedings, OJ 2012 L142.

292  Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the 

right to interpretation and translation in criminal proceedings, OJ 2010 L 280.

86

Handbook on European law relating to access to justiceRight to be advised, defended and represented

4.2.5.  Waiver

The right to legal assistance is of such fundamental importance that the ac-
cused or suspected person may only waive it in limited circumstances.293 The 
ECtHR has strictly restricted waiver and has emphasised the importance of pro-
viding safeguards.

Example: In Pishchalnikov v. Russia,294 the applicant was arrested on sus-
picion of aggravated robbery. He was interrogated without a lawyer and 
confessed to having taken part in criminal activities. During subsequent 
procedures, he refused legal assistance. He was then assigned a legal 
aid counsel. When interrogated in the lawyer’s presence, he retracted 
his statements. He was convicted of various offences on the basis of the 
statements made on his arrest.

The ECtHR noted that an accused who has no lawyer has less chance of 
being informed of his/her rights; consequently, there is less chance that 
these rights will be respected. However, persons can waive fair trial guar-
antees of their own free will, either expressly or tacitly. For safeguards to 
be effective, a waiver must: (i) be established in an unequivocal manner; 
(ii) be attended by minimum safeguards commensurate to its importance; 
(iii) be voluntary; (iv) constitute a knowing and intelligent relinquishment 
of a right; and (v) if implicit from the accused’s conduct, it must be shown 
that the accused could reasonably have foreseen the consequences of his/
her conduct.

In this case, the Court considered it unlikely that the applicant could rea-
sonably have appreciated the consequences of being questioned without 
legal assistance. It found a violation of Article 6 of the ECHR because there 
had been no valid waiver of the right.

Inferring a waiver from a suspect or accused person’s refusal to instruct a lawyer 
is inappropriate.295 Additionally, a valid waiver cannot be implied when a person 
charged with a criminal offence responds to investigators’ questions after being 

293  ECtHR, A.T. v. Luxembourg, No. 30460/13, 9 April 2015, para. 59. This case involved the directive 

on the right to access a lawyer. 

294  ECtHR, Pishchalnikov v. Russia, No. 7025/04, 24 September 2009, paras. 77–78.

295  ECtHR, Sakhnovskiy v. Russia [GC], No. 21272/03, 2 November 2010, paras. 89–93.

87

reminded of the right to silence.296 Reasonable steps should be taken to ensure 
that the accused or suspected person is fully aware of his or her rights of defence 
and can appreciate, as far as possible in the particular situation, the consequence 
of his or her waiver.297 It may also violate Article 6 (3) (c) if a person charged with 
a criminal offence could not, without the assistance of an interpreter, reasona-
bly appreciate the consequences of being questioned without a lawyer.298 States 
need to take additional steps to protect the rights of vulnerable suspects or ac-
cused persons, such as persons with disabilities and children – for example, by 
arranging for third parties to support these individuals (see Chapter 8).299

Under EU law, Article 9 of the Directive on the right of access to a lawyer in 
criminal proceedings specifies three conditions for a valid waiver:

(i) 

the suspect or accused person must be provided, orally or in writing, with clear 
and sufficient information in simple and understandable language about the 
content of the right concerned and the possible consequences of waiving it;

(ii) 

the waiver must be given voluntarily and unequivocally;

(iii)  it must be recorded in accordance with the law of the EU Member State.300

However, it should be noted that under the draft directive on procedural safe-
guards for children suspected or accused in criminal proceedings, children may 
not waive their right to a lawyer.301 Further, a European Commission Recom-
mendation on procedural safeguards for vulnerable persons recommends that it 
should not be possible for vulnerable persons to waive their right to a lawyer.302

296  ECtHR, Pishchalnikov v. Russia, No. 7025/04, 24 September 2009, para. 79.

297  ECtHR, Panovits v. Cyprus, No. 4268/04, 11 December 2008, para. 68.

298  ECtHR, Şaman v. Turkey, No. 35292/05, 5 April 2011, para. 35.

299  ECtHR, Panovits v. Cyprus, No. 4268/04, 11 December 2008, paras. 67–68. See also European 
Commission (2013), Proposal for a Directive of the European Parliament and of the Council on 
procedural safeguards for children suspected or accused in criminal proceedings, COM(2013) 822/2;  
European Commission (2013), Recommendation of 27 November 2013 on procedural safeguards for 
vulnerable persons suspected or accused in criminal proceedings, OJ 2013 C378; and FRA (2015), 
Child friendly justice – Perspectives and experiences of professionals on children’s participation in 
civil and criminal judicial proceedings in 10 EU Member States.

300  See Directive 2013/48/EU.

301  European Commission (2013), Proposal for a Directive on procedural safeguards for children 

suspected or accused in criminal proceedings, Art. 6.

302  European Commission (2013), Recommendation on procedural safeguards for vulnerable per-

sons suspected or accused in criminal proceedings, para. 11.

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Handbook on European law relating to access to justiceRight to be advised, defended and represented

4.3.  Right to self-representation

Key points

•  In  criminal  and  non-criminal  proceedings,  a  person  may  be  self-represented  unless 
the interests of justice require otherwise – for example, to protect the rights of the 
accused or suspected person or if representation is required for the effective admin-
istration of justice.

•  Determining whether the interests of justice require the compulsory appointment of 

a lawyer falls within the margin of appreciation of domestic courts.

Promising practice

Assisting self-represented litigants

In the United Kingdom, the Personal Support Unit (PSU) assists litigants who 
are going through a court process without legal representation. PSU provides 
trained  volunteers  who  give  free  assistance  to  people  facing  proceedings 
without legal representation in civil and family courts and tribunals in England 
and  Wales.  PSU  provides  practical  guidance  on  what  happens  in  court;  can 
help with filling in forms or accompany individuals to court; and also provides 
emotional and moral support. It does not provide an advocacy service or legal 
representation  of  individuals  at  hearings.  It  can,  however,  put  individuals  in 
touch with other agencies that provide these legal services.

Source: https://www.thepsu.org/.

It has been noted that individuals have the right to be represented in non-crim-
inal proceedings if this is necessary to secure practical and effective access 
to court. Article 6 (3) (c) of the ECHR entitles the person charged with a crimi-
nal offence to participate in criminal proceedings through representation or by 
self-representation.

Self-representation is permitted unless the interests of justice require otherwise – 
for example, to protect the rights of the accused or suspected person or if rep-
resentation is required for the effective administration of justice. For instance, 
some national laws require defendants to be represented only at certain stages 
or on appeal.

89

The right to self-representation in non-criminal proceedings is not absolute.303 De-
termining whether the interests of justice require the compulsory appointment of 
a lawyer falls within the margin of appreciation of domestic authorities.304

Limitations can be imposed, for example, to prevent abuses to the dignity of 
the courtroom, to protect vulnerable witnesses from trauma and to prevent 
suspects or accused persons from persistently obstructing proceedings.305 Any 
discretion should be exercised with proportionality and restrictions should be 
imposed with care.306

Example: In Galstyan v. Armenia,307 the applicant was arrested, made 
aware of his rights and expressly declined a lawyer.

The ECtHR noted that Article 6 (3) (c) gives the accused the choice of 
defending himself either “in person or through legal assistance”. Thus, 
self-representation is permitted unless the interests of justice require oth-
erwise. In the applicant’s case, there was no evidence that his choice to be 
self-represented was the result of any threats or physical violence or that 
he was ‘tricked’ into refusing a lawyer. It was the applicant’s own choice to 
not have a lawyer; thus the state could not be held responsible for the lack 
of representation. There was no violation of Article 6 of the ECHR.

If an accused or suspected person deliberately waives his/her right to be 
assisted by a lawyer, the accused or suspected person him/herself is under 
a duty to show diligence – for example, by obtaining a copy of the court’s judg-
ment if it is required for an appeal.308

303  ECtHR, Philis v. Greece, No. 16598/90, 1 July 1992. See also CJEU, C-399/11, Stefano Melloni 

v. Ministerio Fiscal, 26 February 2013, paras. 49-52. 

304  ECtHR, Correia de Matos v. Portugal, No. 48188/99, 15 November 2001. See also ECtHR, 

Croissant v. Germany, No. 13611/88, 25 September 1992.

305  Ibid., paras. 12–13.

306  Ibid., para. 18.

307  ECtHR, Galstyan v. Armenia, No. 26986/03, 15 November 2007, para. 91.

308  ECtHR, Melin v. France, No. 12914/87, 22 June 1993, para. 25.

90

Handbook on European law relating to access to justice5 

Right to an 
effective remedy

EU

Issues covered

CoE

What is an effective remedy?

Charter of Fundamental Rights, 
Article 47 (right to an effective 
remedy)
CJEU, C-583/11 P, Inuit Tapiriit Kana-
tami and Others v. European Parlia-
ment and Council of the European 
Union, 2013
CJEU, T-49/07, Sofiane Fahas v. 
Council of the European Union, 2010
CJEU, C-69/10, Brahim Samba Diouf 
v. Ministre du Travail, de l’Emploi et 
de l’Immigration, 2011

Examples of specific remedies

CJEU, Joined cases C-6/90 and 
C-9/90, Andrea Francovich and 
Danila Bonifaci and others v. Italian 
Republic, 1991
Racial Equality Directive  
(2000/43/EC), Article 15
CJEU, Joined cases C-65/09 and 
C-87/09, Weber and Putz, 2011
Sale of Consumer Goods Directive 
(1999/44/EC), Articles 3 (2) and (3)
Package Travel Directive 
(90/314/EEC), Articles 4 (6) and (7)

Substantive 
requirements

ECHR, Article 13 (right to an 
effective remedy)
ECtHR, McFarlane v. Ireland 
[GC], No. 31333/06, 2010
ECtHR, Rotaru v. Romania 
[GC], No. 28341/95, 2000
ECtHR, Yarashonen v. Turkey, 
No. 72710/11, 2014

Institutional 
requirements

ECtHR, Ramirez Sanchez v. 
France [GC], No. 59450/00, 
2006

Compensation

ECtHR, Ananyev and Others 
v. Russia, Nos. 42525/07 and 
60800/08, 2012

Specific 
Performance

91

EU

Charter of Fundamental Rights, 
Article 52 (1) (field of application)
CJEU, C-314/12, UPC Telekabel Wien 
GmbH, 2014

Issues covered
Injunctions

CoE
ECHR, Article 10 (freedom of 
expression)
ECtHR, Brosa v. Germany, 
No. 5709/09, 2014

This chapter, and the rest of the handbook, focuses on domestic remedies 
rather than standing and remedies before the ECtHR and CJEU. First, the Chap-
ter outlines the procedural and institutional requirements for an effective rem-
edy. It then provides examples of specific types of remedies. Many types of 
remedies can provide effective redress for rights violations. The remedies ad-
dressed in this chapter (compensation, specific performance and injunctions) 
are illustrative and not exhaustive.

5.1.  What is an effective remedy?

Key points

•  Article 13 of the ECHR and Article 47 of the EU Charter of Fundamental Rights guar-
antee the right to an effective remedy. This right is an essential component of access 
to justice. It allows individuals to seek redress for violations of their rights. Different 
types of remedies may redress different types of violations.

•  Neither the ECHR nor the EU Charter of Fundamental Rights define ‘remedyʼ. The over-
riding requirement is for a remedy to be ‘effective’ in practice and in law. There are 
no requirements regarding the form of the remedy, and states enjoy some discretion 
in this respect. In deciding what is effective, the aggregate (total) of remedies will be 
considered.

•  Article 13 of the ECHR and Article 47 of the EU Charter of Fundamental Rights have 
different scopes. Article 13 provides a right to claim “an effective remedy before a na-
tional authority” for “arguable claims” of ECHR rights violations.

•  Article 47 of the EU Charter of Fundamental Rights requires effective judicial protection 
of rights arising from EU law. It is based on Article 13 of the ECHR, but provides more 
extensive  protection.  Article  47  provides  a  right  to  a  remedy  before  a  tribunal  and 
applies to all rights and freedoms in EU law. It is not limited to rights under the Charter.

•  Under EU law generally, remedies must also comply with the principle of equivalence. 
This means that conditions relating to claims arising from EU law cannot be less fa-
vourable than those relating to similar actions arising from national law.

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Handbook on European law relating to access to justiceRight to an effective remedy

For a remedy to be effective, it must comply with specific substantive, pro-
cedural and institutional requirements, as set out in Sections 5.1.1 and 5.1.2. It 
should be noted that the requirements under CoE and EU law differ somewhat.

5.1.1.  Substantive and procedural requirements of 

an effective remedy

Individuals are entitled to redress for violations of their human rights. This 
means that they must be able to obtain a remedy. Different types of remedies 
may address different types of violations (see Section 5.2).

The term ‘remedy’ is not defined in CoE law or EU law. The right to an effective 
remedy is set out in Article 13 of the ECHR and Article 47 of the EU Charter 
of Fundamental Rights. It is also found in international instruments – such as 
Article 8 of the UDHR and Article 2 (3) of the ICCPR.309

Under CoE law, Article 13 of the ECHR offers protection to individuals who 
wish to complain about alleged violations of their rights under the convention. 
Article 13 states: “Everyone whose rights and freedoms as set forth in this 
Convention are violated shall have an effective remedy before a national 
authority notwithstanding that the violation has been committed by persons 
acting in an official capacity”.

Example: In Rotaru v. Romania,310 the applicant complained about the 
Romanian Intelligence Service’s storage and use of incorrect, secretly 
gathered  personal  information  about  his  conviction  for  insulting 
behaviour – arising from letters written as a student during Communist 
times. He could not seek an order for the destruction or amendment of the 
information, and claimed this violated Article 13.

The ECtHR confirmed that Article 13 guarantees the availability of a rem-
edy to enforce ECHR rights and freedoms at national level, and that this 

309  Note that ICCPR Art. 2 (3) (b) provides that the right to a remedy should be “determined 

by competent judicial, administrative or legislative authorities, or by any other competent 
authority provided for by the legal system of the State”. Specific protections for detainees are 
also found in ECHR Art. 5 (4), which guarantees a right of habeas corpus. See also EU Charter of 
Fundamental Rights, Art. 6, and ICCPR, Art. 9 (4).

310  ECtHR, Rotaru v. Romania [GC], No. 28341/95, 4 May 2000, para. 67.

93

remedy must be effective in practice as well as in law. No such remedy 
in respect of the applicant’s grievance existed in Romania at the material 
time; this constituted a violation of Article 13 of the ECHR.

Article 13 permits individuals to claim a remedy before a national authority for 
arguable claims that one or more of their rights set out in the ECHR have been 
violated.311 Article 13 therefore involves claims alleging substantive breaches of 
ECHR provisions. This reinforces Article 35 of the ECHR, which requires individu-
als to exhaust domestic remedies before they have recourse to the ECtHR – and 
provides an additional guarantee to ensure that rights are protected, first and 
foremost, at the national level.312

Under  EU  law,  Article  47  of  the  Charter  of  Fundamental  Rights  states: 
“Everyone whose rights and freedoms guaranteed by the law of the Union are 
violated has the right to an effective remedy before a tribunal in compliance 
with the conditions laid down in this Article”. The Charter is now part of 
primary EU law, but Article 47 also reflects existing EU case law, which may 
provide useful precedent.313 The right to an effective remedy has long been 
a core element of an EU legal order based on the rule of law.314 The CJEU has 
also emphasised the close connection between effective judicial protection 
under Article 47 of the EU Charter of Fundamental Rights and Articles 6 and 13 
of the ECHR.

Example: In Sofiane Fahas v. Council of the European Union,315 the ap-
plicant – an Algerian national living in Germany – sought the annulment 
of several Council Decisions adopting restrictive measures to combat 
terrorism.

The CJEU reiterated that “the principle of effective judicial protection is 
a general principle of Community law stemming from the constitutional 

311  ECtHR, Klass and Others v. Germany, No. 5029/71, 6 September 1978, para. 64. 

312  ECtHR, Kudła v. Poland [GC], No. 30210/96, 26 October 2000, para. 152.

313  CJEU, Joined cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat 

International Foundation v. Council of the European Union and Commission of the European 
Communities, 3 September 2008, para. 335.

314  CJEU, C-294/83, Parti écologiste “Les Verts” v. European Parliament, 23 April 1986; CJEU, C-50/00 P, 

Unión de Pequeños Agricultores v. Council, 25 July 2002; CJEU, C-222/84, Marguerite Johnston v. 
Chief Constable of the Royal Ulster Constabulary, 15 May 1986.

315  CJEU, T-49/07, Sofiane Fahas v. Council of the European Union, 7 December 2010.

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traditions common to the Member States, which has been enshrined in 
Articles 6 and 13 of the ECHR and has also been reaffirmed by Article 47 of 
the Charter of Fundamental Rights of the European Union”.

The Explanations to the EU Charter of Fundamental Rights confirm that the 
right to a remedy under Article 47 is “based on Article 13 of the ECHR”. The 
ECtHR’s case law is important for interpreting the meaning of the right to an 
effective remedy. There are, however, important differences in the respective 
scopes of Article 47 of the Charter and Article 6 of the ECHR (see the Figure in 
Chapter 1).

Under CoE law and EU law, neither Article 47 of the EU Charter of Fundamental 
Rights nor Article 13 of the ECHR requires any particular form of remedy to be 
offered. The primary requirement is that the remedy is “effective in practice as 
well as in law”.316 The effectiveness of a remedy does not depend on the cer-
tainty of a favourable outcome.317 The type of remedy required depends on the 
circumstances of each case.

Under CoE law, some principles to determine effectiveness have been devel-
oped. For example, an effective remedy must:

•  be accessible;

•  be capable of providing redress in respect of the applicant’s complaints;

•  offer reasonable prospects of success.318

Example: In McFarlane v. Ireland,319 the applicant was arrested on his re-
lease from prison in Northern Ireland in 1998. He was charged with of-
fences committed in 1983 in the Republic of Ireland, and was released on 
conditional bail. He made two applications to halt the prosecution on the 
ground that his right to a fair trial was irretrievably prejudiced by the loss 

316  ECtHR, M.S.S. v. Belgium and Greece [GC], No. 30696/09, 21 January 2011, para. 288.

317  ECtHR, Costello-Roberts v. the United Kingdom, No. 13134/87, 25 March 1993, para. 40.

318  ECtHR, Vučković and Others v. Serbia [GC], No. 17153/11 and 29 other cases, 25 March 2014, 

paras. 71 and 74.

319  ECtHR, McFarlane v. Ireland [GC], No. 31333/06, 10 September 2010.

95

of original fingerprint evidence and by delay. Both applications were re-
fused. The applicant was acquitted in June 2008.

The ECtHR doubted the effectiveness of the proposed remedy (an action 
for damages for breach of a constitutional right) for the following reasons: 
(i) there was significant uncertainty as to the availability of the proposed 
constitutional remedy because, although it had been available in theory 
for almost 25 years, it had never been invoked; (ii) the proposed remedy 
may not have been available on the facts of the case because of possible 
judicial immunity; and (iii) it would have been procedurally complex and 
would have caused delay and incurred costs. The Court therefore found 
a violation of Article 13 taken in conjunction with Article 6 (1) (length of 
proceedings) of the ECHR.

Under EU law, the CJEU has recognised Member States’ obligation to provide 
remedies that are sufficient to ensure the effective judicial protection of rights 
in fields covered by Union law. This is based on the principles of effectiveness 
and equivalence. The principle of effectiveness requires that domestic law 
does not make it impossible or excessively difficult to enforce rights under 
EU law.320 The principle of equivalence requires that the conditions relating to 
claims arising from EU law are not less favourable than those relating to similar 
actions of a domestic nature.

Thus, under EU law, Member States are legally bound to establish systems of 
legal remedies and procedures to ensure respect for the right to effective judi-
cial protection guaranteed by EU law.321 This would be undermined by national 
legal provisions or judicial practices that impair the effectiveness of EU law.322 
Whether a national provision complies with the principle of effectiveness must 

320  CJEU, C-33/76, Rewe-Zentralfinanz eG and Rewe-Zentral AG v. Landwirtschaftskammer für das 
Saarland, 16 December 1976. For more recent examples, see CJEU, C-415/11, Mohamed Aziz v. 
Caixa d´Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa), 14 March 2013, para. 50, 
and CJEU, Joined cases C-482/13, C-484/13, C-485/13, C-487/13, Unicaja Banco SA v. José Hidalgo 
Rueda and Others, Caixabank SA v. Manuel María Rueda Ledesma and Others, Caixabank 
SA v. José Labella Crespo and Others and Caixabank SA v. Alberto Galán Luna and Others, 
21 January 2015.

321  TEU, Articles 4 (3) and 19. See CJEU, C-50/00 P, Unión de Pequeños Agricultores v. Council of 

the European Union, 25 July 2002, paras. 39-41. See also CJEU, T-461/08, Evropaïki Dynamiki — 
Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v. European Investment 
Bank (EIB), 20 September 2011, para 46.

322  CJEU, C-213/89, The Queen v. Secretary of State for Transport, ex parte: Factortame Ltd and 

Others, 19 June 1990, para. 20.

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be “analysed by reference to the role of that provision in the procedure, its 
progress and its special features, viewed as a whole, before the various na-
tional instances”.323 The position of the parties and the circumstances of the 
case must be considered to determine whether there was a lack of effective 
protection.324

Example: In Inuit Tapiriit Kanatami and Others v. Parliament and the 
Council,325 the CJEU considered the locus standi of seal hunters seeking to 
challenge a regulation prohibiting the marketing of seal products in the 
EU’s internal market.

The CJEU reviewed the system of judicial protection in the EU. It stated that 
the EU treaties did not create new remedies before the national courts and 
that, if no EU rules governed the matter, it was for the domestic legal sys-
tem of each Member State to decide which procedural rules govern ac-
tions to safeguard rights. Member States have to pay due regard to the 
principles of effectiveness and equivalence in establishing these rules. The 
CJEU held that the seal hunters lacked standing to pursue a direct action for 
annulment.

The nature of the right at stake has implications for the type of remedy a state 
is required to provide.326 Under CoE law, for example, compensation for pecuni-
ary and non-pecuniary damage should in principle be available for violations of 
Article 2 of the ECHR. Pecuniary damage refers to losses that can be precisely 
calculated. Non-pecuniary losses cannot be precisely calculated – for example, 
pain and suffering. When considering whether a remedy offers effective re-
dress, the aggregate of remedies provided under domestic law can be taken 
into account.327 Where a remedy is sought for a violation of an ECHR right that 

323  CJEU, C-312/93, Peterbroeck, Van Campenhout & Cie SCS v. Belgian State, 14 December 1995, 

para. 14. For a more recent case, see CJEU, C-249/11, Hristo Byankov v. Glaven sekretar na Minis-
terstvo na vatreshnite raboti, 4 October 2012, para. 75.

324  CJEU, C-169/14, Juan Carlos Sánchez Morcillo and María del Carmen Abril García v. Banco Bilbao 

Vizcaya Argentaria SA, 17 July 2014, paras. 43–51.

325  CJEU, C-583/11 P, Inuit Tapiriit Kanatami and Others v. European Parliament and Council of the 

European Union, 3 October 2013, paras. 102–103.

326  See ECtHR, Budayeva and others v. Russia, No. 15339/02, 21166/02, 20058/02, 11673/02 and 

15343/02, 20 March 2008, para. 191.

327  ECtHR, De Souza Ribeiro v. France [GC], No. 22689/07, 13 December 2012, para. 79.

97

also constitutes a ‘civil right’ under Article 6, the wider and stricter safeguards 
of Article 6 (1) apply.328

States may have to provide evidence that an effective remedy exists – for 
example, by pointing to similar cases in which a remedy was successfully 
obtained.329

Example: In Yarashonen v. Turkey,330 a Russian of Chechen origin fled Tur-
key after Russian security forces allegedly murdered his brother. He later 
returned and was arrested for illegal entry. He was detained despite hav-
ing filed an asylum application and did not receive medical treatment. His 
asylum application was later granted. The applicant complained about his 
unlawful detention, the conditions of his detention and the lack of effec-
tive domestic remedy under Article 13 to address the breach of Article 3 of 
the ECHR.

The ECtHR held that it was not sufficient that the applicant could raise his 
complaints within general judicial review proceedings. The government 
was unable to show a single decision demonstrating that an immigration 
detainee had been able to use these general review procedures to secure 
their rights. Without such evidence, the capacity of general remedies to 
provide effective preventive and/or compensatory redress was not estab-
lished with a sufficient degree of certainty. The Court found a violation of 
Article 13 in conjunction with Article 3 of the ECHR.

A state may impose reasonable restrictions on the right to an effective remedy 
to ensure the proper administration of justice (for example, see Section 6.2.2 
on limitation periods).331 Doubts about the effective functioning of a newly cre-
ated statutory remedy should not prevent an individual from trying to use it.332 
The Council of Europe has recommended that, when designing new remedies, 

328  ECtHR, Kudła v. Poland [GC], No. 30210/96, 26 October 2000, para. 146.

329  Ibid., para. 159. 

330  ECtHR, Yarashonen v. Turkey, No. 72710/11, 24 June 2014, paras. 63–66.

331  See ECtHR, Stubbings and others v. the United Kingdom, Nos. 22083/93 and 22095/93, 

22 October 1996.

332  ECtHR, Krasuski v. Poland, No. 61444/00, 14 June 2005, para. 71.

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states should – where appropriate – provide for retroactivity of those remedies 
designed to deal with systemic or structural problems.333

5.1.2. 

Institutional requirements of an effective 
remedy

Under CoE law, Article 13 of the ECHR provides a right to a remedy before a ‘na-
tional authority’. This does not have to be a judicial authority, but it is accepted 
that judicial remedies furnish strong guarantees of independence, access for 
victims and families, and enforceability of awards in compliance with the re-
quirements of Article 13 (see Section 2.4.1 on non-judicial bodies generally).334

In determining whether a body is able to provide an effective remedy, the 
facts of the case, the nature of the right at issue, and the powers and guaran-
tees of the body must be considered.335

Example: In Ramirez Sanchez v. France,336 the applicant was sentenced to 
life imprisonment for terrorist attacks in France. He was detained in soli-
tary confinement for eight years and two months, ostensibly because of 
his dangerousness, the need to maintain order and safety in the prison and 
the likelihood that he might seek to escape. He applied to an administra-
tive court to quash the decision placing him in solitary confinement. The 
court dismissed his application, pointing out that the measure was internal, 
which was at the time not eligible for referral to the administrative courts.

The ECtHR concluded that there had been a violation of Article 13 but not 
of Article 3, on account of the absence of a remedy in French law enabling 
the applicant to contest the decision to prolong his detention in solitary 
confinement. The Court noted that, given the serious repercussions of sol-
itary confinement on the conditions of detention, an effective remedy be-
fore a judicial body was essential.

333  Council of Europe, Committee of Ministers (2010), Recommendation Rec(2010)3 to member 
states on effective remedies for excessive length of proceedings, 24 February 2010, para. 11.

334  ECtHR, Z and Others v. the United Kingdom [GC], No. 29392/95, 10 May 2001, para. 110.

335  ECtHR, Kudła v. Poland [GC], No. 30210/96, 26 October 2000, para. 157. For a more recent case, 

see ECtHR, Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia and the former 
Yugoslav Republic of Macedonia [GC], No. 60642/08, 16 July 2014, paras. 131–136.

336  ECtHR, Ramirez Sanchez v. France [GC], No. 59450/00, 4 July 2006.

99

National authorities referred to in Article 13 of the ECHR must meet certain 
criteria. Institutional independence is required. For example, where a police 
chief had discretion regarding whether to refer matters to a police complaints 
authority (an independent body) for investigation, the requisite standards of 
independence were not met.337 The power to make binding decisions is also 
important. A body that lacks this may be considered incapable of providing 
an effective remedy – particularly if it also lacks procedural safeguards, such 
as the right to legal representation or disclosure of the decision.338 A remedy 
dependent on wholly political discretion does not suffice.339

Under EU law, as noted in Section 5.1.2, Article 47 of the EU Charter of Fun-
damental Rights entitles individuals to seek an effective remedy before a tri-
bunal. The meaning of ‘tribunal’ is discussed in Section 2.1. A tribunal must 
meet strict requirements: it must be established by law; be permanent; be in-
dependent and impartial; include an inter-partes procedure; have compulsory 
jurisdiction; and apply rules of law.340 However, the right to seek an effective 
remedy before a tribunal is not unlimited.

Example: In Brahim Samba Diouf v. Ministre du Travail, de l’Emploi et de 
l’Immigration,341 Mr Diouf applied for asylum in Luxembourg, alleging that 
he fled slavery in Mauritania and was persecuted by his former employer. 
His application was dealt with under an accelerated procedure, was reject-
ed as unfounded, and his removal was ordered. The applicant sought an-
nulment of the decision by the Administrative Tribunal, which made a pre-
liminary reference to the CJEU. It asked whether the obligation to provide 
an effective remedy precluded national laws that prevent an appeal.

The CJEU stated that there had to be a remedy before a judicial body, but 
that the principle of effective judicial protection did not require access to 
a number of levels of jurisdiction. The preliminary decision to review an 

337  ECtHR, Khan v. the United Kingdom, No. 35394/97, 12 May 2000, para. 47.

338  ECtHR, Chahal v. the United Kingdom, No. 22414/93, 15 November 1996, para. 154.

339  A complaint to the Home Secretary about an order controlling prisoners’ correspondence is an 

example of this kind of remedy. See ECtHR, Silver and others v. the United Kingdom, Nos. 5947/72, 
6205/73, 7052/75, 7061/75, 7107/75, 7113/75 and 7136/75, 25 March 1983, para. 116.

340  CJEU, C-54/96, Dorsch Consult Ingenieurgesellschaft mbH v. Bundesbaugesellschaft Berlin mbH, 

17 September 1997, para. 23. 

341  CJEU, C-69/10, Brahim Samba Diouf v. Ministre du Travail, de l’Emploi et de l’Immigration, 

28 July 2011, para. 69.

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application for international protection under the accelerated procedure 
did not have to be subject to judicial review, provided that this decision 
was reviewable as part of judicial consideration of the final substantive 
decision to grant or refuse protection.

Under EU law, Article 47 of the EU Charter of Fundamental Rights does not pre-
clude assigning a single type of court to deal with specific types of cases (for 
example, cases concerning agricultural aid) – provided that the exercising of 
rights is not made excessively difficult (for example, because of delay).342

5.2.  Examples of specific remedies
This Section covers several examples of types of remedies, but does not con-
stitute an exhaustive list. Other examples include restitution (the obligation 
to return, in money or kind, something taken from an individual) or remedies 
against removal from a state (a suspensive remedy to prevent a breach of hu-
man rights potentially caused by removing an individual from the jurisdiction 
of a given state). These examples relate to specific substantive rights – such 
as the right to property – or specific policy areas – such as asylum and immi-
gration – and so are beyond the focus of this chapter. Remedies arising from 
delays in the execution of court judgments are discussed in Section 5.2.1, while 
remedies for excessively lengthy proceedings are set out in Section 7.3.

Key points

•  Compensation: compensatory remedies may not always provide effective redress – for 
example,  it  may  be  better  for  proceedings  to  be  expedited.  The  CJEU  has  developed 
principles on state liability to pay damages. Specific EU directives on discrimination also 
contain provisions on damages: for example, Article 15 of the Racial Equality Directive.

•  Specific  performance:  there  are  considerable  differences  regarding  specific  perfor-
mance among European legal systems. EU law sets out non-discretionary specific per-
formance provisions at sector-specific level.

•  Injunctions: the ECtHR and CJEU have noted the importance of balancing competing 
rights, and the nature and proportionality of any restriction, when considering injunc-
tions. Some rights can only be limited if specific criteria are met.

342  CJEU, C-93/12, ET Agrokonsulting-04-Velko Stoyanov v. Izpalnitelen direktor na Darzhaven fond 

Zemedelie - Razplashtatelna agentsia, 27 June 2013, paras. 56–61.

101

5.2.1.  Compensation

Compensation is a form of reparation to offset damage sustained as a result of 
an infringement of legal rights. Under CoE law, compensatory remedies gener-
ally suffice for breaches of the ECHR, but they do not provide an effective reme-
dy in every situation. For example, where a violation concerns the conditions of 
detention and the applicant is still in prison, damages may not be sufficient.343 
In addition, compensatory remedies in cases of non-execution of a judgment 
(see Section 6.3) may only be appropriate if they meet specific conditions:

• 

the claim is heard within a reasonable time;

• 

the compensation is paid promptly;

• 

the procedure complies with Article 6 of the ECHR;

• 

litigants do not face an excessive cost burden;

• 

the level of compensation is not unreasonable in comparison with the 
awards made by the ECtHR in similar cases.

Example: In Burdov v. Russia (No. 2),344 the applicant obtained judgments 
ordering  the  payment  of  benefits  for  his  work  during  emergency 
operations at Chernobyl. Some of the judgments remained unenforced for 
years. In an earlier case, the ECtHR found violations of Article 6 of the ECHR 
and of Article 1 of Protocol No. 1. The Court on its own motion decided to 
examine this issue under Article 13, noting an increasing number of cases 
concerning non-enforcement.

The Court confirmed that, in cases concerning the non-enforcement of ju-
dicial decisions, domestic measures to ensure timely enforcement were 
of the “greatest value”. However, states could choose to impose a pure-
ly compensatory remedy if it met specific requirements: the action was 
heard within a reasonable time; the compensation was paid promptly; pro-
cedural rules conform to the principles guaranteed by Article 6; litigants 
did not face an excessive cost burden; and the level of compensation was 

343  ECtHR, Torreggiani and others v. Italy, No. 43517/09, 8 January 2013, para. 96.

344  ECtHR, Burdov v. Russia (No. 2), No. 33509/04, 15 January 2009, paras. 98–100.

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not unreasonable in comparison with other awards made by the Court. 
There is a strong but rebuttable presumption that excessively long pro-
ceedings cause non-pecuniary damage.

In this case, the ECtHR found a violation of Article 13 of the ECHR because 
the prolonged non-enforcement of the judicial decisions deprived the 
applicant of any kind of remedy.

The ECtHR has also specified key criteria for verifying the effectiveness of 
a compensatory remedy with respect to the excessive length of judicial pro-
ceedings (see Section 7.3).345 If compensation is considered as a remedy, courts 
must avoid excessive formalism, particularly in relation to evidence of dam-
age.346 The procedural rules governing the examination of a claim for compen-
sation must conform to the principle of fairness enshrined in Article 6 of the 
ECHR. This includes that the case be heard within a reasonable time and that 
the rules governing costs must not place an excessive burden on litigants.

Example: The case of Ananyev and Others v. Russia 347 concerned the 
applicants’ detention conditions in various remand prisons between 2005 
and 2008.

The ECtHR found violations of Article 3 (prohibition of inhuman and de-
grading treatment) and Article 13 of the ECHR. Regarding the right to an 
effective remedy, the ECtHR confirmed that states are required to set up 
effective preventive and compensatory domestic remedies. The Court also 
noted that anyone subjected to treatment in breach of Article 3 should be 
entitled to monetary compensation, and that the burden of proof imposed 
on claimants should not be excessive.

The continuing failure to provide compensation awarded may amount to an inter-
ference with the applicant’s right to peaceful enjoyment of their possessions un-
der Article 1 of Protocol 1 to the ECHR.348 In cases dealing with the deprivation of 
property, anyone deprived of their property must, in principle, be able to obtain 

345  ECtHR, Yuriy Nikolayevich Ivanov v. Ukraine, No. 40450/04, 15 October 2009, para. 65. 

346  ECtHR, Radkov v. Bulgaria (No. 2), No. 18382/05, 10 February 2011, paras. 38–40.

347  ECtHR, Ananyev and others v. Russia, Nos. 42525/07 and 60800/08, 10 January 2012.

348  ECtHR, Kirilova and others v. Bulgaria, Nos. 42908/98, 44038/98, 44816/98 and 7319/02, 

9 June 2005, paras. 123–124.

103

compensation “reasonably related to its value”, even if “legitimate objectives of 
‘public interest’ may call for less than reimbursement of the full market value”.349

Under EU law, the EU Charter of Fundamental Rights contains no provision expressly 
obliging Member States to provide compensation for violations of rights arising from 
EU law. However, individuals may invoke rights arising from EU law before national 
courts and Member States may be liable for damages in specific circumstances.350

Example: In Francovich and Bonifaci v. Italy,351 under the Insolvency Protection 
Directive 80/987/EC, Mr Francovich and Ms Bonifaci (and 33 of their colleagues) 
were owed money after their respective employers went into liquidation. The 
directive had to be implemented by 1983, but Italy failed to comply; five years 
later, the workers had been paid nothing. Company liquidators informed them 
that no money was left. They brought a claim against the state, arguing that it 
was required to pay damages to compensate them for losses incurred because 
of its failure to implement the directive.

The CJEU confirmed that the EEC Treaty (then in force) created its own legal 
system, which Member States’ courts were bound to apply. Further, Commu-
nity law also gave rise to rights by virtue of obligations the treaty imposed in 
a clearly defined manner on individuals, on Member States and on Communi-
ty institutions. The principle whereby Member States must be liable for loss 
and damage caused to individuals because of breaches of EU law for which 
states can be held responsible was “inherent in the system of the Treaty”.

State liability arises when there has been a breach of the EU treaties attributable to 
the state352 or a failure to follow the CJEU’s case law.353 Member State liability may 
also arise in cases between individuals if rights derived from EU law are at issue.354

349  ECtHR, Pincová and Pinc v. the Czech Republic, No. 36548/97, 5 November 2002, para. 53. 

350  CJEU, C-26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v. Nether-

lands Inland Revenue Administration, 5 February 1963.

351  CJEU, Joined cases C-6/90 and C-9/90, Andrea Francovich and Danila Bonifaci and others v. 

Italian Republic, 19 November 1991.

352  CJEU, Joined cases C-46/93 and C-48/93, Brasserie du Pêcheur SA v. Bundesrepublik 

Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and 
others, 5 March 1996, para. 34.

353  See also CJEU, C-224/01, Gerhard Köbler v. Republik Österreich, 30 September 2003, para. 56.

354  CJEU, C-453/99, Courage Ltd v. Bernard Crehan and Bernard Crehan v. Courage Ltd and Others, 

20 September 2001.

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The failure to implement a directive may also give rise to state liability for 
damages. For liability to arise:

• 

the directive must have conferred rights on individuals;

• 

the rights must be clearly defined;

• 

there must be a causal link between the Member States’ failure to imple-
ment the directive and the loss suffered.

This principle has been extended to situations where Member States have 
failed to amend existing national legislation or have incorrectly implemented 
a directive. It has also been expanded to include violations of EU law by any 
state authority (including the judiciary).355 However, in such cases it must also 
be shown that there has been a sufficiently serious breach of the law. In de-
ciding whether there has been a “sufficiently serious breach”, the following 
factors must be considered:

• 

the clarity and precision of the rule breached;

• 

the measure of discretion left to the Member State by the rule;

•  whether the breach was intentional;

•  whether the breach was excusable;

• 

• 

the extent to which a position taken by an EU institution may have contribu-
ted to the breach;

the extent to which the Member State adopted or retained national measu-
res contrary to EU law.356

355  CJEU, Joined cases C-46/93 and C-48/93, Brasserie du Pêcheur SA v. Bundesrepublik 

Deutschland and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and 
others, 5 March 1996, para. 34.

356  CJEU, Joined cases C-46/93 and C-48/93, Brasserie du Pêcheur SA v Bundesrepublik Deutschland 

and The Queen v Secretary of State for Transport, ex parte: Factortame Ltd and others, 
5 March 1996, para. 56. See also CJEU, C-224/01, Gerhard Köbler v. Republik Österreich,  
30 September 2003, para. 59.

105

Specific EU directives on discrimination also contain provisions on damages: 
for example, Article 15 of the Racial Equality Directive.357 Where financial com-
pensation measures are adopted, they must be adequate and enable making 
good the loss and damage sustained.358 Also, ceilings on the amount of payable 
compensation may render a remedy ineffective.359 The principle of equivalence 
must be complied with in terms of remedies.360

5.2.2.  Specific performance

Specific performance enforces the terms of a contract, allowing a party to 
a contract to get what they contracted for by putting them in the position they 
would have been in if the contract were concluded. There are considerable 
differences regarding specific performance among European legal systems.361

Under CoE law, there is no specific recognition of the principle of specific 
performance.

Under EU law, however, non-discretionary specific performance obligations 
have been established at the sector-specific level. For example, see Arti-
cles 3 (2) and (3) of Directive 1999/44/EC (Sale of Consumer Goods Directive) 
and Articles 4 (6) and (7) of Directive 90/314/EEC (Package Travel Directive).362

Example: In Weber and Putz,363 a preliminary reference from the German 
courts asked the CJEU whether Article 3 of Directive 1999/44/EC requires 

357  Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment 

between persons irrespective of racial or ethnic origin, OJ 2000 L 180 (Racial Equality Directive).

358  CJEU, C-271/91, M. Helen Marshall v. Southampton and South-West Hampshire Area Health 

Authority, 2 August 1993, para. 26.

359  CJEU, C-180/95, Nils Draehmpaehl v. Urania Immobilienservice OHG, 22 April 1997, para. 43.

360  CJEU, C-78/98, Shirley Preston and Others v. Wolverhampton Healthcare NHS Trust and Others 

and Dorothy Fletcher and Others v Midland Bank plc, 16 May 2000, para. 55.

361  A European-wide statement on private law principles provides some guidance: Study Group on 
a European Civil Code and the Research Group on EC Private Law (2009), Principles, Definitions 
and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR).

362  For example, Directive 1999/44/EC of the European Parliament and of the Council of 

25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, 
OJ 1999 L 171, and Directive 90/314/EEC of 13 June 1990 on package travel, package holidays 
and package tours, OJ 1990 L 158.

363  CJEU, Joined cases C-65/09 and C-87/09, Gebr. Weber GmbH v. Jürgen Wittmer and Ingrid Putz v. 

Medianess Electronics GmbH, 16 June 2011.

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sellers to bear the cost of removing goods that do not conform to a con-
tract and of installing replacement goods.

The CJEU confirmed that the directive requires sellers to repair or replace 
the goods – free of charge – unless this is impossible or disproportionate.

The CJEU has also confirmed that a seller cannot make a financial claim regard-
ing the obligation to bring goods into conformity with a contract. For example, 
a seller cannot require a consumer to pay compensation for the use of defec-
tive goods until their replacement.364

5.2.3.  Injunctions

An injunction is a court order that requires a person to do something or to stop 
doing something. Both CoE law and EU law permit injunctive relief in a varie-
ty of circumstances. It can protect individual rights but, in doing so, may also 
restrict the rights of others. This means a careful balancing act needs to be 
undertaken to ensure proportionality and fairness.365

Under CoE law, injunctions have frequently been considered in relation to the 
right to freedom of expression guaranteed under Article 10 of the ECHR. 366 In 
such cases, the Court repeatedly stated that Article 10 does not prohibit prior 
restraints on publication or bans on distribution as such.367 However, the dan-
gers that restrictions of this kind pose for a democratic society call for the most 
careful scrutiny. Like in any other case involving an interference with a person’s 
freedom of expression, the ECtHR’s task is to examine whether the restriction 
in the particular case was prescribed by law, in pursuit of a legitimate aim368 
and proportionate.

364  CJEU, C-404/06, Quelle AG v. Bundesverband der Verbraucherzentralen und Verbraucherver-

bände, 17 April 2008, paras. 41-43.

365  CJEU, C-70/10, Scarlet Extended SA v. Société belge des auteurs, compositeurs et éditeurs SCRL 

(SABAM), 24 November 2011, para. 49.

366  Beyond the national level, in applications brought to the ECtHR requesting the suspension of an 
expulsion or an extradition from the state, the ECtHR May issue an interim measure asking the 
state to suspend the applicants’ expulsion or extradition for as long as the application is being 
examined by the Court. See, e.g., ECtHR, Abdollahi v. Turkey, No. 23980/08, 3 November 2009.

367  See, for example, ECtHR, Éditions Plon v. France, No. 58148/00, 18 August 2004.

368  Such aims include: in the interests of national security, territorial integrity or public safety; for 

the prevention of disorder or crime; for the protection of health or morals; for the protection 
of the reputation or rights of others; to prevent the disclosure of information received in confi-
dence; or for maintaining the authority and impartiality of the judiciary.

107

For pre-notification requirements, the ECHR does not require media to give 
prior notice of intended publications to those who are featured in them. Such 
a requirement – which would allow the individuals to seek an injunction pre-
venting publication in the context of their right to respect for private life – risks 
causing a “chilling effect” on freedom of expression.369

Example: In Brosa v. Germany,370 the applicant complained that an injunc-
tion restraining his distribution of a leaflet alleging that a candidate in local 
elections was ‘covering’ for a neo-Nazi organisation violated his right to 
freedom of expression under Article 10 of the ECHR.

The leaflet was distributed in the run-up to elections and set out the 
applicant’s views on a candidate’s suitability for office. Since it was of 
a political nature and concerned a question of public interest, there was 
little room for restrictions on the applicant’s freedom of expression. The 
applicant’s opinion was not devoid of a factual basis, but the domestic court 
required “compelling proof” – a disproportionally high degree of factual 
proof. The domestic court failed to strike a fair balance between the relevant 
interests and did not establish a pressing social need to put the protection of 
the candidate’s personality rights above the right to freedom of expression. 
The ECtHR therefore found a violation of Article 10 of the ECHR.

Under EU law, the right to freedom of expression is guaranteed by Article 11 of the 
EU Charter of Fundamental Rights. Article 52 (1) of the Charter outlines permissible 
limitations on rights guaranteed by the Charter, specifying that these must:

•  be provided for by law;

• 

respect the essence of the rights;

•  be proportionate;

•  be necessary;

•  genuinely meet objectives of general interest recognised by the EU or the 

need to protect the rights and freedoms of others.

369  ECtHR, Mosley v. the United Kingdom, No. 48009/08, 10 May 2011, para. 132.

370  ECtHR, Brosa v. Germany, No. 5709/09, 17 April 2014.

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Example: In UPC Telekabel v. Constantin Film,371 a film production company 
tried to stop the unauthorized streaming of its films from a particular web-
site. The Internet Service Provider (ISP) refused a request to block the site, 
so the company pursued an injunction through the courts.

The CJEU balanced the interests of the copyright holders against the 
ISP’s freedom to run a business. Member States must, when transposing 
a directive, ensure that they rely on an interpretation of the directive that 
allows a fair balance to be struck between the applicable fundamental rights 
protected by the EU legal order. Member States must interpret their national 
law in a manner consistent with that directive and with fundamental rights. 
An injunction restricts the freedom to conduct a business but, in this case, it 
did not infringe the “very substance of the freedom”.

371  CJEU, C-314/12, UPC Telekabel Wien GmbH v. Constantin Film Verleih GmbH and Wega Filmpro-

duktionsgesellschaft mbH, 27 March 2014, paras. 46–51.

109

6 

Limitations on access 
to justice in general

EU

Issues covered

CoE

Permissible 
restrictions

ECHR, Article 6 (right to a fair 
trial)
ECHR, Article 13 (right to an 
effective remedy)
ECtHR, Harrison Mckee v. 
Hungary, No. 22840/07, 2014

Legitimate aim and proportionality

Charter of Fundamental 
Rights, Article 47 (right to an 
effective remedy)
Charter of Fundamental 
Rights, Article 48 (presump-
tion of innocence and right of 
defence)
Charter of Fundamental 
Rights, Article 52 (1) (field of 
application)
CJEU, Joined cases C-317/08 to 
C-320/08, Rosalba Alassini and 
Others v. Telecom Italia SpA, 
2010

Examples of restrictions before a final judgment or decision

CJEU, C-530/11, European Com-
mission v. the United Kingdom 
of Great Britain and Northern 
Ireland, 2014

Court fees

ECtHR, Stankov v. Bulgaria, 
No. 68490/01, 2007

Excessive 
formalism

ECtHR, Poirot v. France, 
No. 29938/07, 2011
ECtHR, Maširević v. Serbia, 
No. 30671/08, 2014

111

EU
CJEU, C-415/10, Galina Meister v. 
Speech Design Carrier Systems 
GmbH, 2012
Racial Equality Directive 
(2000/43/EC), Article 8
Gender Goods and Services Di-
rective (2004/113/EC), Article 9
Gender Equality Directive 
(2006/54/EC), Article 18
Employment Framework Direc-
tive (2000/78/EC), Article 10
CJEU, Joined cases C-89/10 and 
C-96/10, Q-Beef NV v. Belgische 
Staat and Frans Bosschaert  
v. Belgische Staat and Others, 2011

Issues covered
Evidence barriers ECtHR, Klouvi v. France, 

CoE

No. 30754/03, 2011

Limitation 
periods

ECtHR, Bogdel v. Lithuania, 
No. 41248/06, 2013

Immunities

ECtHR, C.G.I.L. and Cofferati 
(No. 2) v. Italy, No. 2/08, 2010

Delay in the execution of final judgments

TEU, Article 4 (3) and Article 19
European Enforcement Order 
(Regulation (EC) No. 805/2004)
Brussels Regulation (Council 
Regulation (EC) No. 44/2001)
Regulation No. 1215/2012
Regulation No. 650/2012/EU
Council Regulation No. 
2201/2003
Council Regulation No. 4/2009

ECtHR, Yuriy Nikolayevich Ivanov 
v. Ukraine, No. 40450/04, 2009
ECtHR, Burdov v. Russia (No. 2), 
No. 33509/04, 2009

This chapter details the law concerning limitations (restrictions) on access to jus-
tice; it is of relevance to all other rights referred to in this handbook. Restrictions 
are permitted if they have a legitimate aim, are proportionate and do not im-
pair the very essence of the right. Section 6.2 provides examples of common 
limitations in the CoE and EU. The list of these limitations is illustrative rather 
than exhaustive. It includes court costs, excessive formalism, evidence barriers, 
limitation periods and immunities. The final part (Section 6.3) deals with delay in 
the execution of judgments as another form of restriction on access to justice. It 
also reviews EU legal mechanisms aimed at facilitating the enforcement of judg-
ments within the EU, such as the European Enforcement Order.372

372  Regulation No. 805/2004 of the European Parliament and the Council of 21 April 2004 creating 

a European Enforcement Order for uncontested claims, OJ 2004 L143. It does not apply to Denmark.

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6.1. 

Legitimate aim and proportionality

Key points

•  Restrictions are permitted if they have a legitimate aim and are proportionate. They 

must not impair the very essence of the right.

•  Examples of legitimate aims include the proper administration of justice (for example, 

imposing costs) and the protection of free speech.

•  Proportionality requires striking a fair balance between the aim to be achieved and 

the measures used.

The rights under Articles 6 and 13 of the ECHR and Articles 47 and 48 of the 
EU Charter of Fundamental Rights are not absolute, and can be restricted in 
specific circumstances. Additionally, derogation clauses in international human 
rights standards permit states to temporarily adjust some of their obligations 
in exceptional circumstances – such as in times of public emergency threaten-
ing the life of the nation (see, for example, Article 15 of the ECHR).

Under CoE law, in assessing the lawfulness of a limitation, the ECtHR takes into 
account the importance of access to justice as a democratic principle.373 A law-
ful restriction must:

•  have a legitimate aim;

•  be proportionate;

•  ensure that the very essence of the right is not impaired.

Article 6 of the ECHR does not define ‘legitimate aim’, but ECtHR case law pro-
vides examples of such legitimate aims. They include restrictions on the right 
of access to court to protect those responsible for the care of patients from 
being unfairly harassed by litigation,374 to ensure the proper administration of 

373  ECtHR, Kijewska v. Poland, No. 73002/01, 6 September 2007, para. 46. 

374  ECtHR, Ashingdane v. the United Kingdom, No. 8225/78, 28 May 1985, para. 57.

113

justice,375 and to protect the free speech of parliamentarians and maintain the 
separation of powers between the judiciary and the legislature.376

Proportionality is a key principle in ECtHR case law. It requires striking a fair 
balance between the legitimate aims of the state and the measures the state 
uses to achieve those aims. Proportionality also requires a fair balance be-
tween individual rights and public interests.377 The more substantial the inter-
ference with the right, the greater the justification required.378 For example, the 
obligation to surrender to custody before an appeal hearing was found to be 
a disproportionate interference with the right of access to a court.379 The state 
bears the burden of justifying an interference as proportionate, and it should 
consider using the least intrusive measure.380

Example: In Harrison Mckee v. Hungary,381 the applicant, who was repre-
sented by a lawyer, initiated civil proceedings against a public prosecutor, 
alleging that a letter sent in the course of criminal proceedings contained 
false information about him. The Budapest Regional Court held that his 
right to reputation had been violated but dismissed his claim for compen-
sation, stating that it was excessive and that he could not prove that he 
suffered any actual damage. The applicant was ordered to pay approxi-
mately €2,900 in court fees. The applicant appealed to the Budapest Court 
of Appeal, which upheld the first instance court decision that the applicant 
should pay court fees calculated as a percentage of the dismissed part of 
his claims.

The ECtHR reiterated that the right of access to a court is not absolute and 
can be limited. Limitations must not restrict or reduce a person’s access 
in such a way or to such an extent that the very essence of the right is 
impaired. In this case, the Court saw no reason to doubt that the applicant, 

375  ECtHR, Harrison Mckee v. Hungary, No. 22840/07, 3 June 2014.

376  ECtHR, A. v. the United Kingdom, No. 35373/97, 17 December 2002, para. 77.

377  For an example of balancing the protection of witnesses and the rights of the defence, see e.g. 

ECtHR, Van Mechelen and Others v. the Netherlands, Nos. 21363/93, 21364/93, 21427/93 and 
22056/93, 23 April 1997, paras. 59–65.

378  Ibid., at para. 60.

379  ECtHR, Papon v. France (No. 2), No. 54210/00, 25 July 2002, para. 100.

380  ECtHR, Saint-Paul Luxembourg S.A. v. Luxembourg, No. 26419/10, 18 April 2013, para. 44.

381  ECtHR, Harrison Mckee v. Hungary, No. 22840/07, 3 June 2014.

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with the help of his lawyer, could have determined what would have been 
a ‘reasonable’ claim and thus the amount of the court fees payable in case 
of an unsuccessful action was foreseeable. The aims of imposing court 
fees were compatible with the proper administration of justice, and the 
proceedings provided adequate safeguards to ensure this requirement did 
not constitute a disproportionate financial burden on bona fide claimants. 
The Court found that Article 6 of the ECHR was not violated.

A similar approach is taken under EU law. Limitations must be proportionate 
and respect the essence of the right. This means that limitations must not go 
beyond what is appropriate and necessary to meet the “objectives of general 
interest recognised by the Union” or to protect the rights and freedoms of oth-
ers.382 The state should use the least onerous measure available.383

Example: In Rosalba Alassini v. Telecom Italia SpA,384 the CJEU considered 
four joined preliminary references from the Giudice di Pace di Ischia 
concerning clauses under which an attempt to settle out-of-court was 
a mandatory condition for certain disputes to be admissible before 
national courts. The clauses were enacted in the context of transposing 
Directive 2002/22/EC of the European Parliament and of the Council of 
7 March 2002 on universal service and users’ rights relating to electronic 
communications networks and services.

The CJEU confirmed that most fundamental rights do not constitute 
“unfettered prerogatives” and can be restricted. It referred to ECtHR case 
law and emphasised that restrictions had to correspond to objectives of 
general interest. They must not be disproportionate or infringe upon 
the very substance of the rights guaranteed. The aims of the national 
provisions at issue – quicker and less expensive dispute settlement, and 

382  The Explanations to the EU Charter of Fundamental Rights confirm that “the reference to 

general interests recognised by the Union covers both the objectives mentioned in Art. 3 of the 
Treaty on European Union and other interests protected by specific provisions of the Treaties 
such as Art. 4(1) of the Treaty on European Union and Articles 35(3), 36 and 346 of the Treaty 
on the Functioning of the European Union”. CJEU, C-92/09 and C-93/09, Volker und Markus 
Schecke GbR and Hartmut Eifert v. Land Hessen, 9 November 2010, para. 74.

383  For example, regarding penalties, see C-443/13, Ute Reindl v. Bezirkshauptmannschaft 

Innsbruck, 13 November 2014, para. 40.

384  CJEU, Joined cases C-317/08 to C-320/08, Rosalba Alassini v. Telecom Italia SpA, Filomena Califano 
v. Wind SpA, Lucia Anna Giorgia Iacono v. Telecom Italia SpA and Multiservice Srl v. Telecom Italia 
SpA, 18 March 2010, paras. 63–65.

115

lightening the burden on the court system – were legitimate, and imposing 
an  out-of-court  settlement  procedure  did  not,  on  the  facts,  appear 
disproportionate in relation to the objectives pursued.

6.2.  Examples of restrictions before a final 

judgment or decision

Key points

•  Court fees and costs may constitute an unlawful restriction on access to justice if they 
are too high, because these can deprive individuals of their right of access to court. 
The appropriateness of a fee depends on the facts of each case, including the appli-
cant’s means.

•  Excessive  formalism  (a  strict  interpretation  of  procedural  rules)  may  deprive  appli-

cants of their right of access to court.

•  High evidential thresholds may create barriers to accessing justice. Presumptions of 
fact  or  law  (e.g.  presumptions  of  discrimination)  may  assist  individuals  in  pursuing 
their cases.

•  Limitation  periods  must  be  proportionate  and  serve  a  legitimate  aim  –  such  as  the 

proper administration of justice or preventing injustice arising from old claims.

•  Immunities may be permitted if they serve a legitimate purpose – for example, pro-

tecting parliamentary speech or public officials carrying out their duties.

This section addresses some of the restrictions that have been the subject of 
decisions by the ECtHR or the CJEU. Some barriers can be described as factual 
circumstances – for example, delay or excessive formalism – while others re-
sult from legal provisions – for example, limitations periods, immunities, and 
evidence barriers. This is not an exhaustive list. Other barriers include legal 
standing (see further discussion in Section 8.4 on environmental law) and the 
excessive length of proceedings (see Chapter 7).385

385  FRA (2011), Access to justice in Europe: an overview of challenges and opportunities, p. 38.

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6.2.1.  Court fees

Court fees may assist the efficient administration of justice (for example, by 
deterring abusive litigants or reducing administrative costs), but may also re-
strict access to justice. Excessive court fees that prevent litigants from filing 
a civil claim may constitute a violation of Article 6 (1) of the ECHR.386

Under CoE law and EU law, court fees are not automatically incompatible with 
Article 6 (1) of the ECHR or Article 47 of the EU Charter of Fundamental Rights. 
However, if court fees are too high, this may deprive individuals of their right 
of access to court. 387 For example, the ECtHR found disproportionate fees 
amounting to approximately four times an applicant’s monthly income.388

Example: In Stankov v. Bulgaria,389 the applicant successfully sued the state 
for unlawful detention and was awarded damages. However, he was asked 
to pay a court fee that amounted to almost 90 % of the compensation the 
state was ordered to pay. As a consequence, the applicant effectively lost 
his compensation, even though the Bulgarian courts unequivocally accept-
ed that he was entitled to it.

The ECtHR noted that, in proceedings for damages against the state, 
rules regarding legal costs must avoid placing an excessive burden on 
litigants. Costs should not be excessive or constitute an unreasonable 
restriction on the right of access to a tribunal. Although imposing court 
fees was compatible with the good administration of justice, the relatively 
high and wholly inflexible rate of court fees in this case amounted to 
a disproportionate restriction on the applicant’s right to a court. Various 
procedural solutions used in other member states – such as reducing or 
waiving court fees in actions for damages against the state or affording 
courts discretion in determining costs – were absent. The Court found 
a violation of Article 6 (1) of the ECHR.

386  ECtHR, Kreuz v. Poland, No. 28249/95, 19 June 2001, paras. 61–67. 

387  ECtHR, Perdigão v. Portugal [GC], No. 24768/06, 16 November 2010, para. 74. See also United 

Nations (UN), Committee on Human Rights (HRC) (2008), Case No. 1514/2006, Casanovas v. 
France, 28 October 2008, para. 11.3. 

388  ECtHR, Kijewska v. Poland, No. 73002/01, 6 September 2007, para. 47. 

389  ECtHR, Stankov v. Bulgaria, No. 68490/01, 12 July 2007.

117

Under EU law, the issue of costs has been considered in relation to the access 
to justice requirements under the directive implementing the Aarhaus Conven-
tion (see Section 8.4 on environmental law).390

Example: In European Commission v. the United Kingdom of Great Britain and 
Northern Ireland,391 a group of environmental NGOs lodged a complaint with 
the European Commission, alleging that individuals and civil society groups 
were unable to pursue cases in UK courts because of the “prohibitively ex-
pensive” costs of legal action and, specifically, the application of the “loser 
pays rule”, which requires the losing party to cover the winning party’s legal 
costs. They argued that this breached the access to justice provisions (Arti-
cles 3 (7) and 4 (4)) of the directive implementing the Aarhaus Convention, 
which among others, prohibit making review procedures “prohibitively ex-
pensive”. The European Commission referred the case to the CJEU.

The CJEU considered what was meant by “prohibitively expensive” in the 
directive. This evaluation required an objective and a subjective assessment. 
Costs must not be “objectively unreasonable”, but also cannot exceed the 
financial resources of the person concerned. In assessing what is subjectively 
reasonable,  a  number  of  factors  can  be  taken  into  account,  including: 
(i) whether the case has reasonable prospects of success; (ii) what is at stake 
for the claimant and the protection of the environment; and (iii) the complexity 
of the law and relevant procedure. This assessment does not differ at first 
instance and on appeal. The UK failed to correctly transpose the directive.

Fees must be assessed in light of the particular circumstances of the case – 
including the individual’s ability to pay – to determine whether the individual 
still enjoys the right of access to a court.392 This right may be violated by re-
fusals to reimburse the winning party’s costs.393 States should ensure that the 

390  UN, Economic Commission for Europe (UNECE) (1998), Convention on Access to Informa-

tion, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 
25 June 1998.

391  CJEU, C-530/11, European Commission v. the United Kingdom of Great Britain and Northern Ire-

land, 13 February 2014. See also CJEU, C-260/11, The Queen, on the application of David Edwards 
and Lilian Pallikaropoulos v. Environment Agency and Others, 11 April 2013.

392  See also ECtHR, Tolstoy Miloslavsky v. the United Kingdom, No. 18139/91, 13 July 1995, 

paras. 61–67 (deeming reasonable the requirement to pay a substantial security deposit in re-
spect of the opposing party’s legal costs because the appeal was not considered meritorious).

393  ECtHR, Stankiewicz v. Poland, No. 46917/99, 6 April 2006, paras. 60 and 75.

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need to fund the administration of justice does not negate the right to access 
court. National laws often provide for the possibility to apply for legal aid to 
cover court fees (see Chapter 3 on legal aid). Simplified procedures can also 
help; these can be similar in nature to the European Small Claims Procedure 
discussed in Section 8.5, and are often less costly and quicker.

Promising practice

Reducing costs and simplifying procedures

In the United Kingdom (England and Wales), the government introduced Money 
Claim Online (MCOL) as a solution to long and costly procedures for small claims. 
Claims must be for an amount below £100,000 and be against someone with 
an address in England or Wales.

Source: Council of Europe, CEPEJ (2014), Report on ‘European judicial systems – Edition 2014 (2012 
data): efficiency and quality of justice’, p. 260. See also www.gov.uk/make-money-claim-online 
and www.inbrief.co.uk/preparing-for-trial/problems-with-small-claims.htm.

6.2.2.  Excessive formalism

Excessive formalism refers to particularly strict interpretations of procedural 
rules that may deprive applicants of their right of access to a court. This can 
include strict interpretations of time-limits, rules of procedure and evidence.

Example: In Poirot v. France,394 the applicant, a woman with disabilities, 
lodged a criminal complaint alleging sexual assault and rape at a residen-
tial care home. A judicial investigation of the allegations was opened in 
2002. In 2006, the investigating judge amended the charges to allege only 
sexual assault, and committed the accused for trial at the local criminal 
court. The applicant appealed the re-classification of the alleged acts and 
the committal order because she considered the offences serious enough 
to be tried by the Cour d’Assise. Her appeal was dismissed. The decision 
stated that her notice of appeal did not explicitly mention the grounds for 
the appeal. The applicant then appealed this decision on points of law, but 
to no avail. The perpetrator was later acquitted. The applicant alleged that 
the dismissal of her appeal deprived her of her right of access to the court.

394  ECtHR, Poirot v. France, No. 29938/07, 15 December 2011, para. 46.

119

The ECtHR observed that the Code of Criminal Procedure did not formally 
require the applicant to make explicit reference to the grounds of her ap-
peal. The relevant provision of the code in question was the only one that 
allowed the applicant to challenge the committal order made by the inves-
tigating judge. The Court accepted that the national authorities were in the 
best position to interpret domestic legislation. However, the judicial au-
thorities applied the relevant procedural rules in an excessively formalistic 
manner, thereby infringing on the applicant’s right of access to a court. The 
Court thus found a violation of Article 6 (1) of the ECHR.

The court’s role and alternative avenues of redress available to an applicant 
may be relevant in examining the question of formalism. For example, where 
a court has a unique role in reviewing administrative decisions, acting both as 
court of first and last instance, its procedure should not be excessively formal-
istic, as this deprives individuals of an avenue of redress.395

A particularly strict construction of procedural rules by constitutional courts 
may deprive applicants of their right of access to a court.396 For example, if 
a procedural rule – such as a time limit – is construed in such a way that it pre-
vents applicants’ actions from being examined on the merits, this undermines 
the right of access to a court.397

Example: In Maširević v. Serbia,398 the applicant, a practising lawyer, filed 
a civil claim with a municipal court, seeking payment by a private insurance 
company  for  a  service  rendered  pursuant  to  a  legal  fee  agreement. 
The court initially ordered the payment but, after a counter-claim by the 
insurance company, quashed the order and declared the contract null and 
void. The appellate court upheld this judgment and the applicant filed 
an appeal on points of law with the Supreme Court. The Supreme Court 
dismissed the appeal, stating that the applicant was not entitled to lodge 
it because Article 84 of the Serbian Civil Procedures Act specified that an 
appeal on points of law may only be submitted by an attorney at law, and 

395  See, for example, ECtHR, Sotiris and Nikos Kouras ATTEE v. Greece, No. 39442/98, 16 November 2000, 

para. 22 and ECtHR, Shulgin v. Ukraine, No. 29912/05, 8 December 2011, para. 65.

396  ECtHR, Běleš and Others v. the Czech Republic, No. 47273/99, 12 November 2002, para. 69.

397  ECtHR, Miragall Escolano and Others v. Spain, Nos. 38366/97, 38688/97, 40777/98, 40843/98, 

41015/98, 41400/98, 41446/98, 41484/98, 41487/98 and 41509/98, 25 May 2000, paras. 33 and 36.

398  ECtHR, Maširević v. Serbia, No. 30671/08, 11 February 2014.

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not the plaintiff personally. The Supreme Court stated that, pursuant to this 
Act, parties to proceedings lost the legal capacity to file an appeal on points 
of law individually, even if they were themselves attorneys.

The ECtHR held that this particularly strict interpretation of the procedural 
rule undermined the right of access to a court. The Court stated that, in 
cases such as these, its role was to decide whether the procedural rules 
in question were intended to ensure the proper administration of justice 
and the principle of legal certainty. The Supreme Court’s interpretation of 
the rule in question did not serve these aims and deprived the applicant 
of a full examination of the merits of his allegations. The Court therefore 
found a violation of Article 6 (1) of the ECHR.

Excessive formalism may also occur when a court attaches paramount impor-
tance to a factual consideration (such as an applicant’s illegal residence status) 
without balancing this properly with the applicants’ fundamental rights (for ex-
ample, their right to family life under Article 8).399 Self-reflective practice might 
assist courts in avoiding practices that can undermine access to justice.

Promising practice

Promoting access to justice by reducing excessive formalism

The  Yambol  Administrative  Court  (Bulgaria)  was  awarded  the  2010  Crystal 
Scales  of  Justice  Prize  for  its  efforts  to  provide  clear  and  open  information 
about  its  services  to  promote  confidence  in  the  judicial  process.  The  court 
implemented an action plan targeting citizens and the media; and it requires 
its judicial personnel to use plain language when communicating with citizens. 
Other actions include adopting a ‘Clients Charter’ – a written undertaking by the 
court to present its services in an understandable, open and precise style. Such 
measures can improve individuals’ access to court because they help reduce 
overly  complex  forms  of  communication.  Surveys  confirm  that  the  public’s 
perception of the court’s activities has greatly improved.

Source: 2010 Crystal Scales of Justice Prize organised jointly by the Council of European and the 
European Commission.

399  ECtHR, Rodrigues Da Silva and Hoogkamer v. the Netherlands, No. 50435/99, 31 January 2006, 

para. 44.

121

6.2.3.  Evidence barriers

For individuals to obtain adequate redress from courts, they must provide 
sufficient evidence to support their cases. If evidential thresholds are too high, 
actions before courts may be doomed to fail and individual legal rights may in 
practice be unenforceable.400

In some cases, evidence barriers can be reduced by introducing specific 
requirements about which party has to prove the elements of the case (burden 
of proof requirements). For example, in criminal matters, the burden of proof 
lies with the prosecution. The prosecution has therefore the duty to prove the 
case against the person charged with a criminal offence. This is tied to the 
presumption of innocence under Article 6 (2) of the ECHR and Article 48 (1) 
of the EU Charter of Fundamental Rights. Reverse burdens of proof can 
undermine the presumption of innocence.

However, in very specific and limited cases, under CoE law, the evidential 
burden may be shifted to the defence. The importance of what is at stake 
and the safeguards that exist to protect the rights of the defence must be 
considered when determining whether a reverse burden is acceptable.401

Example: In Klouvi v. France,402 the applicant lodged a criminal complaint 
against her former line manager, P., in 1994, alleging rape and sexual 
harassment. In 1998, the investigating judge held that there was no 
case, as there was insufficient evidence. Meanwhile, P. initiated criminal 
proceedings against the applicant for malicious prosecution. The applicant 
received a suspended prison sentence and was ordered to pay damages. 
Her appeal was dismissed. She complained that the presumption of 
innocence had been violated.

The ECtHR recognised that every domestic system uses legal presumptions. 
In the present case, however, the judgment was based on a strict application 
of the criminal code – holding first that, if there was no case, this necessarily 
meant that the applicant’s accusations were false and, second, since the 
applicant complained of repeated rape and sexual harassment, she must 

400  FRA (2011), Access to justice in Europe: an overview of challenges and opportunities, p. 62.

401  ECtHR, Salabiaku v. France, No. 10519/83, 7 October 1988.

402  ECtHR, Klouvi v. France, No. 30754/03, 30 June 2011.

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have known that her allegations were untrue, thus establishing intentional 
malicious prosecution. The presumptions made meant that she had no 
means of defending herself against the charge of malicious prosecution. 
This violated Article 6 (2) of the ECHR.

Other presumptions of fact can arise in specific circumstances. For example, 
in cases concerning Article 3 of the ECHR (torture or inhuman and degrading 
treatment), where the relevant events take place within state control (for ex-
ample, in prison), the burden of proof may shift to the state. This means that 
the authorities have to provide a satisfactory and convincing explanation for 
injuries sustained during detention.403

Within the EU, a European Commission Proposal for a Directive of the European 
Parliament and the Council aims to strengthen certain aspects of the presump-
tion of innocence within the EU. 404 Article 5 of the current draft compromise 
text confirms the presumption of innocence, requesting Member States to en-
sure that the burden of proof in establishing the guilt of suspects and accused 
persons is on the prosecution.405

Further, under EU law, a specific regime now applies to individuals trying to 
establish discrimination, who traditionally faced particularly complex evidence 
barriers.406 Under EU law, once a claimant has established an initial case on the 
facts, a presumption of discrimination arises, and the responding party must 
prove that discrimination did not occur. This shift in the burden of proof is now 
embedded in EU legislation on non-discrimination, such as the Racial Equality 
Directive and the Gender Equality Directive.407 These directives are exceptions 
to the usual evidential requirements, which oblige applicants to prove all ele-
ments of their cases.

403  ECtHR, Gurgurov v. Moldova, No. 7045/08, 16 June 2009, para. 56.

404  European Commission (2013), Proposal on the strengthening of certain aspects of the presump-
tion of innocence and of the right to be present at trial in criminal proceedings, COM(2013) 821 
final, Brussels, 27 November 2013, Art. 5(2).

405  See Council of the European Union (2015), Note from presidency and permanent representative 

committee, interinstitutional file 2013/0407 (COD).

406  CJEU, C-127/92, Dr. Pamela Mary Enderby v Frenchay Health Authority and Secretary of State for 

Health, 27 October 1993. See also FRA (2011), Handbook on European non-discrimination law, 
Luxembourg, Publications Office.

407  In terms of EU legislation embedding shifts in the burden of proof, see Racial Equality Directive, 
Art. 8; Gender Goods and Services Directive, Art. 9; Gender Equality Directive, Art. 18; and 
Employment Framework Directive, Art. 10. 

123

Example: In Galina Meister v Speech Design Carrier Systems GmbH,408 
a Russian national applied for a job vacancy for an ‘experienced software 
developer’. Her application was rejected. A second advertisement with the 
same content was published by the same company not long afterwards. 
The applicant’s re-application was again rejected. She claimed that she 
was the victim of discrimination on the basis of her sex, age and ethnic 
origin. She brought an action seeking compensation for employment dis-
crimination and the disclosure of her file. Her action was dismissed, and 
her appeal against that decision was also dismissed. She then appealed 
to the Federal Labour Court, which referred to the CJEU the question of 
whether the applicant could claim a right to information on the basis of 
several directives.

The CJEU noted that persons who consider themselves discriminated 
against must initially establish facts from which discrimination may be pre-
sumed. Only after establishment of these facts must the defendant prove 
that there was no discrimination. The CJEU held that a refusal of disclosure 
by the defendant could prevent the applicant from establishing the initial 
facts. The referring court had to make sure that this refusal did not prevent 
the applicant from establishing her case.

6.2.4.  Limitation periods

Limitation periods set time limits within which a party must bring a claim, or give 
notice of a claim to another party. Imposing reasonable time limits and procedural 
conditions for bringing claims can promote the proper administration of justice by 
ensuring legal certainty and finality and protecting potential defendants from old 
claims that might be difficult to counter because of the passage of time.409 Under 
CoE law and EU law, a time limit in principle does not violate Article 6 (1) of the 
ECHR or Article 47 of the EU Charter of Fundamental Rights, respectively.

Under CoE law, although limitation periods are a common feature of domestic 
legal systems and serve several important purposes, to be lawful, they must 
pursue a legitimate aim and be proportionate to that aim.410

408  CJEU, C-415/10, Galina Meister v. Speech Design Carrier Systems GmbH, 19 April 2012. See also CJEU, 
C-83/14, CHEZ Razpredelenie Bulgaria AD v. Komisia za zashtita ot diskriminatsia, 16 July 2015.

409  ECtHR, MPP Golub v. Ukraine, No. 6778/05, 18 October 2005.

410  ECtHR, Stubbings and others v. the United Kingdom, Nos. 22083/93 and 22095/93, 

22 October 1996, paras. 50–56.

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Example: In Bogdel v. Lithuania,411 the applicants inherited a plot of land 
that had been bought from the state. Ten years later, a court held that the 
initial sale was illegal and that the land should be returned to the govern-
ment without payment. The applicants appealed; the appellate court held 
that the amount originally paid for the land should be refunded, but own-
ership was denied. The applicants maintained that the state’s claim to the 
land should have been time-barred.

The ECtHR reiterated that limitation periods “are a common feature of the 
domestic legal systems of the Contracting States”. They ensure legal cer-
tainty, protect potential defendants and prevent injustices that could arise 
if courts were required to decide upon events that took place in the past, 
on the basis of evidence that may no longer be reliable or complete. Here, 
the applicants argued before the ECtHR that it was discriminatory to apply 
different rules regarding the starting date for limitation periods to state 
authorities and to private entities, but did not raise this issue in the do-
mestic courts. Even so, the ECtHR concluded that the effect of this distinc-
tion was compatible with the applicants’ right to a court, and that Arti-
cle 6 (1) of the ECHR was not violated.

Similarly, under EU law, statutory limitation periods for bringing actions before 
national courts are not necessarily unlawful.412

Example: In Q-Beef and others,413 the applicants on 2 April 2007 instituted pro-
ceedings against the Belgian state, seeking reimbursement of contributions 
paid between January 1993 and April 1998. According to the referring court, 
the five-year limitation period governing the applicants’ claim had expired.

The CJEU held that, with regard to the principle of effectiveness, it was 
compatible with EU law to establish, in the interests of legal certainty, 
reasonable time-limits for bringing proceedings. These limitation periods 
must not make it virtually impossible or excessively difficult to exercise 
the rights conferred by EU law.

411  ECtHR, Bogdel v. Lithuania, No. 41248/06, 26 November 2013.

412  CJEU, C-231/96, Edilizia Industriale Siderurgica Srl (Edis) v. Ministero delle Finanze, 

15 September 1998, paras. 34–36.

413  CJEU, Joined cases C-89/10 and C-96/10, Q-Beef NV v. Belgische Staat and Frans Bosschaert 
v. Belgische Staat, Vleesgroothandel Georges Goossens en Zonen NV and Slachthuizen 
Goossens NV, 8 September 2011.

125

Additionally, under EU law, time-limits must not be less favourable than those 
relating to similar domestic claims.414 Several EU secondary law instruments 
contain specific rules in this context; for example, the Mediation Directive (see 
Section 2.4.2) requires states to ensure that no limitation periods run while 
a dispute is being mediated.415

6.2.5.  Immunities

Immunities  are  a  very  specific  type  of  procedural  bar.  States  may  also 
introduce immunities to prevent claims from being made. A legal immunity is 
an exemption from all or parts of the legal process – for example, from a legal 
duty, a penalty or from prosecution.416 Some immunities are designed to comply 
with obligations arising from public international law – such as state immunity 
or diplomatic immunity; others may be granted at the domestic level – for 
example, to protect public officials from liability for decisions made in the 
course of their official duties, or to protect the free speech of parliamentarians.

Parliamentary immunity may be compatible with Article 6 if it pursues the 
legitimate aims of protecting free speech in parliament or maintaining the 
separation of powers between the legislature and the judiciary.417 Immunity 
will be easier to justify if it is closely connected to parliamentary activity.418

Example: In C.G.I.L. and Cofferati (No. 2) v. Italy,419 the applicants were an 
Italian trade-union federation and its general secretary. In 2002, an adviser 
to the Minister of Labour was murdered by the Red Brigades. During a debate 
in parliament, references were made to the alleged link between terrorism 
and trade-union campaigns. A member of parliament made allegations to 
the press. The applicants brought an action for damages against him, arguing 
that his statements harmed their reputation. The Chamber of Deputies 

414  CJEU, C-261/95, Rosalba Palmisani v. Istituto nazionale della previdenza sociale (INPS), 

10 July 1997, paras. 27–28.

415  Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain 
aspects of mediation in civil and commercial matters (Mediation Directive), OJ 2008 L 136, 
Art. 8.

416  Kloth, M. (2010), Immunities and the right of access to the court under Art. 6 of the European 

Convention on Human Rights, Leiden, Martinus Nijhoff Publishers, p. 1.

417  ECtHR, A. v. the United Kingdom, No. 35373/97, 17 December 2002, paras. 75–77.

418  ECtHR, Cordova v. Italy (No.2), No. 45649/99, 30 January 2003, para. 64.

419  ECtHR, C.G.I.L. and Cofferati (No. 2) v. Italy, No. 2/08, 6 April 2010, para. 44.

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declared that the statements were covered by parliamentary immunity. 
The applicants complained that this interfered with their right of access to 
a court.

The ECtHR found a violation of Article 6 of the ECHR. Parliamentary 
immunity was a long-standing practice aimed at protecting the free 
speech of parliamentarians. The interference with the applicants’ rights 
pursued a legitimate aim, but it was not proportionate. The statements 
were not, strictly speaking, linked to the performance of parliamentary 
duties. The authorities did not strike a fair balance between the general 
interests  of  the  community  and  the  requirement  of  protecting  the 
individual’s fundamental rights.

State (or sovereign) immunity has been deemed to pursue a legitimate aim 
justifying restrictions on access to a court because it is a recognised concept 
of international law that promotes comity (mutual respect) and good relations 
between states.420 State immunity can apply even where cases involve allega-
tions of torture. However, the ECtHR has noted that, in light of current develop-
ments in this area of public international law, this issue should be kept under 
review by states.421

Other immunities may include limitations on individuals’ ability to pursue legal 
proceedings challenging statements and findings made by civil servants. Such 
restrictions may be acceptable if they pursue a legitimate aim – for example, 
the effective functioning of an investigation.422 However, there must be a re-
lationship of proportionality between the means employed and the legitimate 
aim pursued.423

420  ECtHR, Al-Adsani v. the United Kingdom [GC], No. 35763/97, 21 November 2001, para. 56. 

421  ECtHR, Jones and others v. the United Kingdom, Nos. 34356/06 and 40528/06, 14 January 2014, 

para. 215.

422  ECtHR, Fayed v. the United Kingdom, No. 17101/90, 21 September 1994, para. 70.

423  Ibid., paras. 75–82.

127

6.3.  Delay in the execution of final 

judgments

Key points

•  The right of access to a court includes the right to have a court decision enforced. The 
failure to execute a judgment may unreasonably obstruct access to justice and violate 
Article 13 of the ECHR.

•  ECtHR case law identifies several criteria relevant to determining the reasonableness 
of a delay, such as the complexity of the enforcement proceedings; the behaviour of 
the applicant and the competent authorities; and the amount and nature of the court 
award.

•  Under EU law, the failure to enforce a judgement violates Member State obligations 
under Articles 4 (3) and 19 of the TEU and the EU Charter of Fundamental Rights. The 
CJEU has not (yet) ruled on this issue under Article 47.

The non-execution of court judgments limits access to justice. It can undermine 
fundamental rights protection and deprive individuals of effective judicial pro-
tection. In doing so, the non-execution of court judgments also undermines the 
rule of law.424

Under CoE law, the right of access to a court includes the right to have a court 
decision enforced without undue delay. The non-execution of domestic judg-
ments thus falls within the scope of Article 6 of the ECHR.425 Delays in exe-
cuting a judgment may also lead to a violation.426 States have a duty to en-
sure that final and binding court judgments are enforced. If the delay or 

424  Council of Europe, CCJE (2010), Opinion n°13 (2010) on the role of Judges in the enforcement 

of judicial decisions, Strasbourg, para. 7; Council of Europe, CEPEJ (2007), Enforcement of court 
decisions in Europe, CEPEJ Studies No. 8, Strasbourg; CEPEJ (2010), Access to justice in Europe, 
Strasbourg; Council of Europe, CEPEJ (2008), Checklist for promoting the quality of justice and 
the court, Strasbourg, e.g. p. 16.

425  ECtHR, Hornsby v. Greece, No. 18357/91, 19 March 1997, para. 40. See also UN, Committee on 

Human Rights (HRC) (2005), Case No. 823/1998, Czernin v. Czech Republic, 29 March 2005 
(inaction and excessive delays in implementing decisions violate ICCPR Art. 14).

426  Council of Europe, Committee of Ministers (2003), Recommendation Rec(2003)17 to mem-

ber states on enforcement, 9 September 2003. See also Council of Europe, CEPEJ (2009), 
Guidelines for a better implementation of the existing Council of Europe Recommendation on 
enforcement.

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non-enforcement of a judgment can be attributed to a state, this gives rise to 
a claim under Article 13 of the ECHR.

Example: In Ivanov v. Ukraine,427 the applicant complained about the non-
enforcement of judgments in his favour and the lack of effective remedy 
at the domestic level.

The ECtHR confirmed that the state is responsible for the enforcement of 
final decisions if the factors impeding or blocking their full and timely en-
forcement are within the authorities’ control. The Court reviewed the exe-
cution of judgments under Article 6 and identified the following factors as 
relevant to determining the reasonableness of a delay: (i) the complexity 
of the enforcement proceedings; (ii) the behaviour of the applicant and the 
competent authorities; and (iii) the amount and nature of the court award. 
The Court found violations of Articles 6 and 13 of the ECHR.

It is inappropriate to require an individual who has obtained judgment against 
a state to bring enforcement proceedings to obtain satisfaction therefrom.428 It 
is the state’s duty to act. A public authority cannot invoke a lack of resources 
to justify not paying a debt ordered by a court decision.429 Furthermore, 
late payment following enforcement proceedings does not afford adequate 
redress.430 The ECtHR has stated that, in cases concerning the non-enforcement 
of judicial decisions, domestic measures to ensure timely enforcement are of the 
“greatest value”. However, states can choose to provide a purely compensatory 
remedy if the remedy meets specific requirements (for further discussion of 
compensation as a remedy in cases of non-execution, see Section 5.2.1).

Under EU law, Article 47 of the Charter of Fundamental Rights applies to 
all rights arising from EU law and entitles individuals to effective judicial 
protection of these rights. The failure to enforce a judgment violates Member 
State obligations under Articles 4 (3) and 19 of the TEU (see Chapter 1) and the 
Charter of Fundamental Rights. The CJEU has not (yet) ruled on this issue under 
Article 47.

427  ECtHR, Yuriy Nikolayevich Ivanov v. Ukraine, No. 40450/04, 15 October 2009, paras. 53–57.

428  ECtHR, Scordino v. Italy (No. 1) [GC], No. 36813/97, 29 March 2006, para. 198.

429  ECtHR, Sacaleanu v. Romania, No. 73970/01, 6 September 2005.

430  ECtHR, Karahalios v. Greece, No. 62503/00, 11 December 2003, para. 23.

129

On the more general issue of enforcing judgments, the EU has adopted second-
ary legislation to deal with the cross-border recognition and enforcement of 
judgments. For example:431

•  The European Enforcement Order (EEO) is available to enforce uncontested 
civil or commercial judgments in other EU Member States.432 Uncontested 
means that the defendant has agreed to the claim, that the court has 
approved a settlement or that the defendant failed to appear to defend the 
claim. Individuals may obtain declarations of enforceability. The EEO is then 
sent to the enforcement authority of the relevant EU Member State. There 
are express exemptions, such as cases concerning wills and succession or 
matrimonial property.

• 

If an EEO cannot be used, individuals may be able to enforce judgments 
using the Brussels I Regulation from 2001.433Excluded proceedings include 
arbitration, bankruptcy and matrimonial proceedings. A new recast Brus-
sels II Regulation – which replaced the 2001 Brussels I Regulation – came 
into force on 10 January 2015. 434 The Brussels I Regulation, however, still 
applies to judgments in proceedings started before that date.

431  Other examples include Regulation No. 650/2012/EU of the European Parliament and of the 
Council on jurisdiction, applicable law, recognition and enforcement of decisions and accept-
ance and enforcement of authentic instruments in matters of succession and on the creation 
of a European Certificate of Succession, OJ L 201/107; Council Regulation No. 2201/2003 of 
27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments 
in matrimonial matters and the matters of parental responsibility, OJ L 338/1; and Council 
Regulation No. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and 
enforcement of decisions and cooperation in matters relating to maintenance obligations, 
OJ L 7/1.

432  Regulation No. 805/2004 of the European Parliament and the Council of 21 April 2004 creating 
a European Enforcement Order for uncontested claims, OJ 2004 L143. It does not apply to 
Denmark.

433  Regulation No. 44/2001 of the European Parliament and the Council of 22 December 2001 on 

jurisdiction and regulation and enforcement of judgments in civil and commercial matters, 
OJ 2001 L12. The provisions were extended to Denmark by Council Decision 2006/325/EC of 
27 April 2006 concerning the conclusion of the Agreement between the European Community 
and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judg-
ments in civil and commercial matters 2006/325/EC, OJ 2006 120. See also the Convention on 
Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters 
(the Lugano Convention), OJ 2007 L339, 30 October 2007, signed by the EU, Denmark, Iceland, 
Norway and Switzerland.

434  Regulation No. 1215/2012 of the European Parliament and the Council of 12 December 2012 

on jurisdiction and regulation and enforcement of judgments in civil and commercial matters 
(recast), OJ 2012 L351. Denmark has not opted in.

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Promising practice

Enforcing judgments efficiently

In  Sweden,  debts  are  enforced  by  the  Swedish  Enforcement  Authority  (SEA). 
The creditor applies for enforcement. If all necessary documents are enclosed, 
the SEA notifies the debtor about the debt, giving him/her two weeks to pay 
or object. If the debtor does not pay, enforcement can start. The SEA searches 
for  assets  that  can  be  attached  to  pay  the  debt  (for  example,  through  the 
land  registry,  company  registry  and  tax  accounts).  The  debtor  must  provide 
information  about  his/her  assets  and  may  be  questioned  about  them.  Third 
parties  are  required  to  provide  information  about  assets  that  belong  to  the 
debtor but are in the third parties’ care. The SEA evaluates the information and 
attaches those assets that can cover the debt with the least harm to the debtor. 
If money in a bank account is attached, the money is transferred to the SEA 
within a few days and then distributed to the creditor.

Source: The Swedish Enforcement Authority.

131

7 

Limitations on access 
to justice: length 
of proceedings

EU

Issues covered

CoE

Length of proceedings

Charter of Fundamental 
Rights, Article 47 (right to an 
effective remedy)
Charter of Fundamental 
Rights, Article 41 (right to 
good administration)

Determining 
the length of 
proceedings

ECHR, Article 6 (1) (right to 
a fair trial)

Non-criminal 
proceedings

ECtHR, Oršuš and Others v. Croatia 
[GC], No. 15766/03, 2010

Criminal 
proceedings

ECtHR, Malkov v. Estonia, 
No. 31407/07, 2010

Reasonableness of the length of proceedings

CJEU, C-500/10, Ufficio IVA di 
Piacenza v. Belvedere Costru-
zioni Srl., 2012

Criteria de-
termining 
reasonableness
Complexity of 
the case
Behaviour of the 
applicant

ECtHR, Starokadomskiy v. Russia 
(No. 2), No. 27455/06, 2014

ECtHR, Matoń v. Poland, 
No. 30279/07, 2009
ECtHR, Veliyev v. Russia, 
No. 24202/05, 2010

133

EU

Issues covered
Behaviour of 
the domestic 
authorities

Importance of 
the right at stake

CoE
ECtHR, Sociedade de Construções 
Martins & Vieira, Lda. and Others 
v. Portugal, Nos. 56637/10 and 
others, 2014
ECtHR, Mikulić v. Croatia, 
No. 53176/99, 2002

Remedies for excessive length of proceedings

CJEU, C-58/12 P, Groupe 
Gascogne SA v. European 
Commission, 2013

ECtHR, Scordino v. Italy (No. 1) 
[GC], No. 36813/97, 2006

Having court proceedings conclude within a reasonable time is a fundamental 
human right in both non-criminal and criminal proceedings. This chapter details 
CoE and EU law on determining the length of proceedings and deciding 
whether the length is reasonable. Section 7.3 outlines the remedies available 
for excessively lengthy proceedings.

7.1.  Determining the length of proceedings

Key points

•  The right to trial within a reasonable time is safeguarded by both Article 6 of the ECHR 

and Article 47 of the EU Charter of Fundamental Rights.

•  The total length of proceedings is considered when deciding whether they were con-

cluded within a reasonable time.

•  In non-criminal cases, time normally begins to run from the moment an action is insti-

tuted before a tribunal.

•  In criminal cases, time normally begins to run from the moment a person is ‘charged’. 
This means from the moment that the individual’s situation is ‘substantially affected’.

•  In both criminal and non-criminal cases, time ends when the determination becomes 

final (is not open to appeal).

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Promising practice

Expediting family cases

The  family  affairs’  courts  and  the  Bar  of  Berlin,  Germany,  implemented 
a successful joint project in Berlin to speed up judicial procedures relating to 
family cases. The project tackles the length of proceedings and possible conflict 
between  parents,  for  example.  It  establishes  a  consistent,  multi-disciplinary 
approach among professionals (lawyers, social workers and judges), with joint 
interventions helping parents to independently identify and meet the needs of 
their children, and more efficiently resolve proceedings.

Source: 2014 Crystal Scales of Justice Award, organised jointly by the Council of European and the 
European Commission.

The right to trial within a reasonable time is found in Article 6 of the ECHR and 
Article 47 of the EU Charter of Fundamental Rights. Despite the importance of 
this right, the excessive length of proceedings is by far the most common issue 
raised in applications to the ECtHR.435

The requirement for proceedings to end within a reasonable time “applies to 
all parties to court proceedings and its aim is to protect them against excessive 
procedural delays”.436 Excessive delays can undermine respect for the rule of 
law and prevent access to justice. Delays in obtaining and executing judgments 
can constitute a procedural barrier to accessing justice (see Section 6.3). States 
must organise their legal systems to enable their courts to comply with the ob-
ligation to determine cases within a reasonable time.437 A failure to adjudicate 
within a reasonable time gives rise to an entitlement to an effective reme-
dy (see Section 7.3).438 States should guarantee specific legal avenues through 

435  Council of Europe, Committee of Ministers (2010), Recommendation Rec(2010)3 to member 

states on effective remedies for excessive length of proceedings, 24 February 2010. See 
also Council of Europe, Registry of the European Court of Human Rights, Annual Report 2014, 
pp. 174–175.

436  ECtHR, Stögmüller v. Austria, No. 1602/62, 10 November 1969, para. 5.

437  ECtHR, Scuderi v. Italy, No. 12986/87, 24 August 1993, para. 16. ECtHR, Jama v. Slovenia, 

No. 48163/08, 19 July 2012, para. 36.

438  Council of Europe, Committee of Ministers (2010), Recommendation Rec(2010)3. See also Coun-

cil of Europe, CEPEJ (2012), Length of court proceedings in the member states of the Council of 
Europe based on the case law of the European Court of Human Rights. The reports identify and 
evaluate key principles from the ‘reasonable time’ case law.

135

which individuals can seek remedies for unduly long proceedings; failing to do 
so constitutes a separate violation of Article 13.439

Neither CoE law nor EU law has established specific time frames for what con-
stitutes a ‘reasonable time’. Cases are assessed on an individual basis and in 
light of all individual circumstances. This assessment is made pursuant to the 
criteria established by the ECtHR in its case law and also applied by the CJEU. 
The ECtHR first identifies the period to be taken into consideration in deter-
mining the length of proceedings. It then considers whether the length of time 
is reasonable (see further Section 7.2).440 Chapter 1 (in particular the Figure) 
outlines the connection between the rights in the EU Charter of Fundamental 
Rights and the ECHR – due to this connection, the CoE law set out below also 
applies to EU law under Article 47.

The principle of having a hearing within a reasonable time also applies in the 
context of administrative procedures within the EU.441 This is also specified in 
Article 41 of the EU Charter of Fundamental Rights, which gives all citizens the 
right to have their affairs handled impartially, fairly and within a reasonable 
time by EU bodies and institutions.

7.1.1.  Determining the length of non-criminal 

proceedings

In non-criminal cases, time normally begins to run from the moment an action 
is instituted before a tribunal.442 However, it sometimes begins to run before 
the start of court proceedings.443 This only occurs in exceptional circumstan-
ces – such as when certain preliminary steps are a necessary preamble to the 
proceedings.444 For example, if an applicant must apply to an administrative 
authority before bringing court proceedings, the time considered may include 

439  ECtHR, Kudła v. Poland [GC], No. 30210/96, 26 October 2000, paras. 159–160.

440  ECtHR, Kudła v. Poland [GC], No. 30210/96, 26 October 2000, para. 124.

441  See also CJEU, T-214/06, Imperial Chemical Industries Ltd v. European Commission, 5 June 2012, 

para. 284.

442  ECtHR, Poiss v. Austria, No. 9816/82, 23 April 1987, para. 50.

443  ECtHR, Golder v. the United Kingdom, No. 4451/70, 21 February 1975, para. 32.

444  ECtHR, Blake v. the United Kingdom, No. 68890/01, 26 September 2006, para. 40.

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this period.445 The time period covers the entire proceedings in question, in-
cluding appellate proceedings.446

Time ends when a determination becomes final (this includes the assessment 
of damages post-judgment).447 The ECtHR looks at the entirety of the proceed-
ings in determining whether the length is reasonable.448 In relation to the con-
clusion of proceedings, the execution of judgment or enforcement proceedings 
are considered an integral part of a case for purposes of calculating the rele-
vant period.449

Example: In Oršuš and Others v. Croatia,450 the applicants were 15 pupils 
of Roma origin who attended two primary schools between 1996 and 
2000. They attended Roma-only classes at times. On 19 April 2002, they 
brought proceedings against the schools, alleging discrimination on the 
basis of race and a violation of the right to education. In September 2002, 
a court dismissed their complaint and this decision was upheld on appeal. 
On 7 February 2007, the Constitutional Court dismissed the applicants’ 
complaint. They complained about the length of the proceedings.

The ECtHR noted that the proceedings started on 19 April 2002 and end-
ed, after proceeding before the municipal and county courts, with the 
Constitutional Court’s decision on 7 February 2007. It held that, while the 
proceedings before the trial and appellate courts were speedily decided, 
the proceedings before the Constitutional Court lasted four years, one 
month and 18 days. The ECtHR concluded that Article 6 (1) of the ECHR was 
violated.

Regarding the length of proceedings before constitutional courts, the ECtHR 
takes into account their special role as “guardian of the Constitution”.451 The 
relevant test in determining whether constitutional court proceedings may 
be taken into account in assessing the reasonableness of the length of pro-

445  ECtHR, König v. Germany, No. 6232/73, 28 June 1978, para. 98.

446  ECtHR, Poiss v. Austria, No. 9816/82, 23 April 1987, para. 50.

447  ECtHR, Guincho v. Portugal, No. 8990/80, 10 July 1984.

448  ECtHR, Dobbertin v. France, No. 13089/87, 25 February 1993, para. 44.

449  ECtHR, Martins Moreira v. Portugal, No. 11371/85, 26 October 1988, para. 44.

450  ECtHR, Oršuš and Others v. Croatia [GC], No. 15766/03, 16 March 2010.

451 

Ibid., para. 109.

137

ceedings is whether the result of the proceedings is capable of affecting the 
outcome of the dispute before the ordinary courts.452

When a litigant dies and another person declares his or her intention to continue 
the proceedings as the original applicant’s heir, the entirety of the proceedings 
can be taken into account when examining the proceedings’ length.453 By 
contrast, where an indvidual intervenes in a case as third party only on his/her 
own behalf, time runs from the date of intervention for this purpose.454

7.1.2.  Determining the length of criminal 

proceedings

The reasonable time requirement in criminal proceedings aims to ensure that 
“accused persons do not have to remain too long in a state of uncertainty as to 
the outcome of the criminal accusations against them”.455 In criminal cases, time 
starts to run the moment a person is “charged”.456 This means from the moment 
that the situation of the accused is “substantially affected”.457 It should be noted 
that time may begin to run before a case comes to the trial court – for example, 
from the time of arrest458 or institution of a preliminary investigation.459

Example: In Malkov v. Estonia,460 the applicant was convicted of murder-
ing a taxi driver in 2008. The criminal investigation had started on 6 Au-
gust 1998. The applicant complained about the excessive length of the 
proceedings.

The ECtHR reiterated that, in criminal matters, time begins to run as soon 
as the person is “charged”, which may occur before a case comes before 
a court. The term ‘charge’ corresponds to the test of whether the suspect’s 

452  ECtHR, Süssmann v. Germany [GC], No. 20024/92, 16 September 1996, para. 39.

453  ECtHR, Scordino v. Italy (No. 1) [GC], No. 36813/97, 29 March 2006, para. 220. 

454  Ibid.

455  ECtHR, Wemhoff v. Germany, No. 2122/64, 27 June 1968, para. 18.

456  ECtHR, Tychko v. Russia, No. 56097/07, 11 June 2015, para 63.

457  ECtHR, Eckle v. Germany, No. 8130/78, 15 July 1982.

458  ECtHR, Wemhoff v. Germany, No. 2122/64, 27 June 1968, para. 19.

459  ECtHR, Ringeisen v. Austria, No. 2614/65, 16 July 1971, para. 110.

460  ECtHR, Malkov v. Estonia, No. 31407/07, 4 February 2010.

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situation has been substantially affected. The Court took 17 August 2001 as 
the starting date – the day on which a police investigator drew up charges 
against the applicant, and he was declared a fugitive. The end date of the 
proceedings was 22 April 2009, when the Supreme Court declined the 
applicant’s appeal. In total, the proceedings lasted seven years and eight 
months at three levels of jurisdiction. The proceedings took an excessively 
long time, violating Article 6 (1) of the ECHR. This was remedied by 
a reduction of the applicant’s sentence.

The reasonable time requirement applies to the whole proceedings in ques-
tion, including appeal proceedings.461 Thus time runs until the judgment deter-
mining the charge; this can be a decision by an appeal court on the merits.462 
A criminal charge is “determined” only once the sentence is finally fixed.463 The 
execution of a court’s judgment is regarded as an integral part of the trial for 
purposes of Article 6; this includes implementation of a decision to acquit. 464

7.2.  Criteria determining the reasonableness 

of the length of proceedings

Key points

•  The reasonableness of the length of criminal and non-criminal proceedings depends 

on the particular circumstances of each case.

•  The  following  four  criteria  are  used  to  assess  reasonableness  in  criminal  and  non-
criminal  proceedings:  the  complexity  of  the  case;  the  conduct  of  the  complainant; 
the conduct of domestic authorities; and the importance of what is at stake for the 
complainant.

The approach to establishing whether proceedings have been unduly lengthy 
has been described as “more pragmatic than scientific”.465 Under CoE and 

461  ECtHR, König v. Germany, No. 6232/73, 28 June 1978, para. 98.

462  ECtHR, Neumeister v. Austria, No. 1936/63, 27 June 1968, para. 19.

463  ECtHR, Eckle v. Germany, No. 8130/78, 15 July 1982, para. 77.

464  ECtHR, Assanidze v. Georgia [GC], No. 71503/01, 8 April 2004, paras. 181–182.

465  Opinion of Advocate General Sharpston in CJEU, C-58/12, Groupe Gascogne SA v. European 

Commission, 30 May 2013, paras. 72–73.

139

EU law, in both criminal and non-criminal proceedings, the reasonableness 
of the length of proceedings depends on the particular circumstances of the 
case.466

Four criteria are used to gauge reasonableness in criminal and non-criminal 
proceedings:

(i) 

the complexity of the case;

(ii) 

the complainant’s conduct;

(iii)  the conduct of the relevant authorities;

(iv)  what is at stake for the complainant (see Sections 7.2.1 to 7.2.4).467

Applying these criteria, the ECtHR has, for example, deemed 10 years468 and 
13 years469 to be unreasonable for criminal proceedings. It has also found un-
reasonable 10 years for civil proceedings470 and 7 years for disciplinary pro-
ceedings.471 Cases may progress through a number of jurisdictional levels (for 
example, by way of appeal). This is taken into account when considering rea-
sonableness. The cumulative effect of delay at each level is considered when 
determining what is reasonable.472

A balance must, however, be achieved between expedition and the proper ad-
ministration of justice. For example, the need for speedy resolution of a case 
must not deprive an accused of defence rights (see Section 4.2.4 on adequate 
time and facilities to prepare one’s defence).473

466  ECtHR, König v. Germany, No. 6232/73, 28 June 1978, para. 110. 

467  For example, ECtHR, Frydlender v. France [GC], No. 30979/96, 27 June 2000, para. 43 

(employment).

468  ECtHR, Milasi v. Italy, No. 10527/83, 25 June 1987.

469  ECtHR, Baggetta v. Italy, No. 10256/83, 25 June 1987.

470  ECtHR, Capuano v. Italy, No. 9381/81, 25 June 1987.

471  ECtHR, Kincses v. Hungary, No. 66232/10, 27 January 2015.

472  ECtHR, Deumeland v. Germany, No. 9384/81, 29 May 1986, para. 90.

473  ECtHR, Boddaert v. Belgium, No. 12919/87, 12 October 1992, para. 39.

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Example: In Starokadomskiy v. Russia (No. 2),474 the applicant was charged 
with aggravated murder in February 1998. He was subsequently accused 
of other violent crimes together with several co-suspects. In November 
2004, he was convicted of a number of offences, including conspiracy to 
commit murder. His conviction was upheld on appeal and he was eventual-
ly sentenced to ten years’ imprisonment in November 2005. The applicant 
complained that the length of the criminal proceedings was unreasonable.

There was no indication that the ‘reasonable time’ requirement was part of 
the domestic court’s reasoning. Article 6 commands that judicial proceed-
ings be completed within a reasonable time, but it also lays down the more 
general principle of the proper administration of justice. In this case, the 
Court was not satisfied that the authorities succeeded in maintaining a fair 
balance between various aspects of this fundamental requirement. The 
applicant was in custody, so particular diligence was required. The Court 
found a violation of Article 6 (1) of the ECHR.

The CJEU has applied the same criteria to proceedings before the EU Gener-
al Court.475 The CJEU has also ruled that EU legal obligations do not provide 
a justification for Member States’ failure to comply with the reasonable time 
principle.

Example: In Ufficio IVA di Piacenza v. Belvedere Costruzioni Srl,476 an Italian 
law provided for the automatic conclusion of certain tax proceedings 
pending before the tax court of third instance more than ten years after 
being brought at first instance. This was held to be compatible with EU law.

The CJEU noted that the obligation to ensure effective collection of European 
Union resources cannot run counter to compliance with the principle, derived 
from Article 47 of the EU Charter of Fundamental Rights and Article 6 (1) of 
the ECHR, that judgment should be given within a reasonable time.

474  ECtHR, Starokadomskiy v. Russia (No. 2), No. 27455/06, 13 March 2014.

475  CJEU, C-58/12 P, Groupe Gascogne SA v. European Commission, 26 November 2013, 

paras. 82–88.

476  CJEU, C-500/10, Ufficio IVA di Piacenza v. Belvedere Costruzioni Srl., 29 March 2012, para. 23.

141

7.2.1.  Complexity of the case

Complexity relates both to the facts and to the law. A complex case may in-
volve issues regarding an applicant’s state of health,477 a high volume of evi-
dence,478 complex legal issues,479 the need to interview a large number of wit-
nesses,480 or a large number of persons affected.481 Some cases may appear 
more complex by their nature – for example, if they involve both community 
and individual interests.482 However, just because a case is considered very 
complex does not mean that all delays will be considered reasonable.483

Example: In Matoń v. Poland,484 on 19 June 2000, the applicant was charged 
with drug trafficking, unlawful possession of firearms and membership in an 
organised criminal gang. There were 36 defendants and 147 witnesses in the 
case. The applicant was convicted in 2008. He appealed to the regional court, 
which had not yet determined his appeal at the time of the ECtHR hearing. 
He also lodged a complaint with the court of appeal, alleging a breach of the 
right to a trial within a reasonable time. That court rejected his application.

The ECtHR accepted that the case was very complex, involving a number of 
defendants and voluminous evidence. However, it stated that this in itself 
could not justify the overall length of the criminal proceedings. Even taking 
into account the significant difficulties faced by domestic authorities, they 
were required to organise the trial efficiently and ensure respect for ECHR 
guarantees. The criminal proceedings, which lasted over eight years, did not 
respect the reasonable time requirement. Article 6 of the ECHR was breached.

Thus, while complex cases may need more time to complete, complexity does 
not necessarily justify lengthy proceedings.485

477  ECtHR, Yaikov v. Russia, No. 39317/05, 18 June 2015, para. 76. 

478  ECtHR, Eckle v. Germany, No. 8130/78, 15 July 1982.

479  ECtHR, Breinesberger and Wenzelhuemer v. Austria, No. 46601/07, 27 November 2012, paras. 30–33.

480  ECtHR, Mitev v. Bulgaria, No. 40063/98, 22 December 2004, para. 99. 

481  ECtHR, Papachelas v. Greece [GC], No. 31423/96, 25 March 1999, para. 39 (complexity of the facts).

482  ECtHR, Wiesinger v. Austria, No. 11796/85, 30 October 1991, para. 55.

483  ECtHR, Ferrantelli and Santangelo v. Italy, No. 19874/92, 7 August 1996, para. 42. See also 

ECtHR, Ringeisen v. Austria, No. 2614/65, 16 July 1971, para. 110.

484  ECtHR, Matoń v. Poland, No. 30279/07, 9 June 2009.

485  Council of Europe, CEPEJ (2012), Length of court proceedings in the member states of the Coun-

cil of Europe based on the case law of the European Court of Human Rights, p. 20.

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7.2.2.  Conduct of the complainant

A complainant’s behaviour is an objective feature of proceedings over which 
the state does not have control. It must, therefore, be taken into account when 
determining whether or not a reasonable time period has been exceeded.486

Individuals cannot be blamed for exercising their rights or using all avenues 
of appeal open to them.487 They are not required to actively co-operate in ex-
pediting proceedings against them.488 The applicant’s duty is to be diligent in 
conducting his/her case, to refrain from using delaying tactics and to avail him/
herself of opportunities for shortening the proceedings.489

Example: In Veliyev v. Russia,490 the applicant was arrested and detained 
on  26  February  2004  on  suspicion  of  having  taken  part  in  multiple 
organised armed robberies. The first instance judgment was rendered on 
21 June 2006. The conviction was confirmed on appeal. The government 
argued that the proceedings were prolonged because of deliberate acts by 
the co-accused, translation from Russian to Azeri, and occasional illness of 
the applicant, co-accused and lawyers.

The ECtHR reiterated that an applicant cannot be obliged to cooperate ac-
tively with the judicial authorities and cannot be criticised for making full 
use of the available domestic remedies. In this case, the applicant did not 
contribute significantly to the length of the proceedings, and certain delays 
could be attributed to the domestic authorities. Article 6 requires judicial 
proceedings to be expeditious, and it also lays down the general principle 
of proper administration of justice. The domestic authorities did not strike 
a fair balance between the various aspects of this fundamental require-
ment, breaching Article 6 of the ECHR.

An individual’s conduct that may lead to delay includes fleeing the jurisdic-
tion. As a general rule, therefore, an accused cannot complain of the unrea-
sonable duration of proceedings after having fled, unless he/she has sufficient 

486  ECtHR, Wiesinger v. Austria, No. 11796/85, 30 October 1991, para. 57.

487  ECtHR, Gubkin v. Russia, No. 36941/02, 23 April 2009, para. 167. See also ECtHR, Moiseyev v. 

Russia, No. 62936/00, 9 October 2008, para. 192.

488  ECtHR, Eckle v. Germany, No. 8130/78, 15 July 1982, para. 82.

489  ECtHR, Unión Alimentaria Sanders SA v. Spain, No. 11681/85, 7 July 1989, para. 35.

490  ECtHR, Veliyev v. Russia, No. 24202/05, 24 June 2010.

143

reason.491 An applicant’s conduct must not be used to justify periods of inactiv-
ity by the authorities.

7.2.3.  Conduct of the domestic authorities

Delays attributable to the state must be taken into account, 492 but attributing 
responsibility must be carefully considered. For example, a delay in proceed-
ings that results from the referral of a question to the CJEU for a preliminary 
ruling is not the fault of the state.493

States must organise their legal systems to enable their courts to guarantee 
the right to obtain a final decision within a reasonable time.494 However, the 
key responsibility for preparing a case and for the speedy conduct of a trial lies 
with the judge.495 The ECtHR has found that repeated changes of judge “cannot 
exonerate the State, which is responsible for ensuring that the administration 
of justice is properly organised”.496 Likewise, a “chronic overload” of cases does 
not justify excessively lengthy proceedings.497 The state is responsible for all 
state authorities – not just the courts.498

Example: In Sociedade de Construções Martins & Vieira, Lda. and Others v. 
Portugal,499 the Porto prosecuting authorities started an investigation into 
the applicants’ past fiscal activities on 17 September 1999. Subsequently, 
two separate criminal proceedings were instituted before the Porto and 
Barcelos criminal courts. At the time of the hearing before the ECtHR, they 
were both still pending.

491  ECtHR, Vayiç v. Turkey, No. 18078/02, 20 June 2006, para. 44.

492  ECtHR, Buchholz v. Germany, No. 7759/77, 6 May 1981, para. 49. See also ECtHR, Yagtzilar and 

others v. Greece, No. 41727/98, 6 December 2001.

493  ECtHR, Pafitis and others v. Greece, No. 20323/92, 26 February 1998, para. 95.

494  ECtHR, Cocchiarella v. Italy [GC], No. 64886/01, 29 March 2006, para. 119. For a criminal case, 

see ECtHR, Dobbertin v. France, No. 13089/87, 25 February 1993, para. 44.

495  ECtHR, Capuano v. Italy, No. 9381/81, 25 June 1987, paras. 30-31.

496  ECtHR, Lechner and Hess v. Austria, No. 9316/81, 23 April 1987, para. 58.

497  ECtHR, Probstmeier v. Germany, No. 20950/92, 1 July 1997, para. 64.

498  ECtHR, Martins Moreira v. Portugal, No. 11371/85, 26 October 1988, para. 60.

499  ECtHR, Sociedade de Construções Martins & Vieira, Lda. and Others v. Portugal, Nos. 56637/10, 

59856/10, 72525/10, 7646/11 and 12592/11, 30 October 2014.

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The ECtHR noted that the proceedings already exceeded 14 years. They 
also came to a standstill for almost four years between December 1999, 
when the applicants became defendants, and April and November 2003, 
when charges were brought against them. A further delay of two years 
followed between 2003 and 2005, when a trial date was set. This showed 
that, from the beginning, the domestic courts did not demonstrate due dil-
igence in handling the applicants’ case. The Court stated that it may be 
reasonable for domestic courts to await the outcome of parallel proceed-
ings as a matter of procedural efficiency, but that this had to be propor-
tionate as it would keep the accused in a prolonged state of uncertainty. It 
found a violation of Article 6 of the ECHR.

A temporary court backlog does not trigger state liability if it takes prompt, 
appropriate remedial action to try to resolve the problem. 500 To surmount 
backlogs, states may adopt provisional measures, such as choosing to deal 
with cases in a particular order.501 However, if these temporary actions fail to 
work, states need to adopt more effective measures to address the problem.502 
States should seek ways of ensuring that their judicial systems do not create 
delays in proceedings.

Promising practice

Reducing the length of proceedings by listening to court users

In  Sweden,  a  Quality  Court  Management  project  successfully  reduced  the 
length  of  proceedings  in  appellate  and  district  courts.  The  project  sought 
internal  feedback  about  court  management  from  judges  and  court  staff. 
External feedback was also sought from defendants, witnesses, and lawyers. 
This  dialogue  took  place  through  surveys,  questionnaires  and  small  group 
work. Suggestions to improve the courts’ handling of cases were acted on and 
reduced the length of time it takes to complete cases.

Source: Carboni, N. (2014), ‘From quality to access to justice: Improving the functioning of 
European judicial systems’, Civil and Legal Sciences, Volume 3, Issue 4, p. 4.

500  ECtHR, Probstmeier v. Germany, No. 20950/92, 1 July 1997, para. 64. See also Council of Europe, 
CEPEJ (2012), Length of court proceedings in the member states of the Council of Europe based 
on the case law of the European Court of Human Rights, p. 3.

501  ECtHR, Zimmermann and Steiner v. Switzerland, No. 8737/79, 13 July 1983, para. 29. See also 

ECtHR, Rutkowski and Others v. Poland, Nos. 72287/10, 13927/11 and 46187/11, 7 July 2015, 
paras. 207–210. For a criminal case, see ECtHR, Milasi v. Italy, No. 10527/83, 25 June 1987, para. 18.

502  ECtHR, Zimmermann and Steiner v. Switzerland, No. 8737/79, 13 July 1983, para. 29.

145

7.2.4.  What is at stake for the complainant

The importance of what is at stake for the complainant is another criterion to 
be taken into account when assessing the length of proceedings. A more rigor-
ous standard applies if the accused is in custody, requiring “special diligence” 
on the authorities’ part.503 Cases concerning children or life-threatening illness 
also merit speedier determination.504

Promising practice

Speeding up proceedings

In  the  Espoo  area  of  Finland,  criminal  courts  implemented  so-called  ‘Jouko-
days’,  during  which  children’s  cases  are  prioritised  and  automatically  placed 
towards  the  front  of  the  queue.  This  results  in  shorter  proceedings  and  less 
stress for the children involved.

Source: FRA (2015), Child-friendly justice – Perspectives and experiences of professionals on 
children’s participation in civil and criminal judicial proceedings in 10 EU Member States, p. 35.

For example, in a claim for the return of children to Norway under the Interna-
tional Child Abduction Convention, the ECtHR emphasised “the critical impor-
tance” of the passage of time in these types of proceedings, where delays may 
effectively determine the case outcome.505 Special diligence is also required in 
proceedings to determine compensation for victims of road traffic accidents, 506 
and in employment disputes.507

503  ECtHR, Jabłoński v. Poland, No. 33492/96, 21 December 2000, para. 102. See also ECtHR, Chudun 

v. Russia, No. 20641/04, 21 June 2011, para. 112.

504  ECtHR, Hokkanen v. Finland, No. 19823/92, 23 September 1994, para. 72 (it is “essential that 
[child] custody cases be dealt with speedily”). See also ECtHR, X v. France, No. 18020/91, 
31 March 1992, para. 45 (case ought to have been dealt with as a matter of urgency because of 
the life expectancy of the persons concerned).

505  ECtHR, Hoholm v. Slovakia, No. 35632/13, 13 January 2015, para. 51.

506  ECtHR, Martins Moreira v. Portugal, No. 11371/85, 26 October 1988.

507  ECtHR, Vocaturo v. Italy, No. 11891/85, 24 May 1991, para. 17; ECtHR, Bauer v. Slovenia, 

No. 75402/01, 9 March 2006, para. 19. For details on cases requiring extra diligence, see also 
Council of Europe, (CEPEJ) (2012), Length of court proceedings in the member states of the 
Council of Europe based on the case law of the European Court of Human Rights, p. 3. Note also 
Council of Europe, (CEPEJ) (2013), States appeal and supreme courts’ lengths of proceedings.

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Example: In Mikulić v. Croatia, 508 the applicant and her mother filed 
a paternity suit against H.P. This led to 15 scheduled hearings, six of which 
were adjourned because H.P. failed to appear. He also persistently failed 
to appear for DNA testing. By the time the case got to the ECtHR, the 
proceedings had already taken four years and were still ongoing.

The  case  focused  on  an  alleged  breach  of  Article  8,  but  the  ECtHR 
reiterated that particular diligence is required in cases concerning civil 
status and capacity. Here, in view of what was at stake for the applicant, 
and that it was her right to have paternity established or refuted to 
eliminate uncertainty regarding her natural father’s identity, Article 6 
required the competent national authorities to act with particular diligence. 
There was a violation of Article 6 (1) of the ECHR.

7.3.  Remedies for excessively lengthy 

proceedings

Chapter 7 sets out the right to have proceedings concluded within a reasonable 
time.509 This section looks at the ECtHR’s approach to providing an effective 
remedy for excessively long proceedings. It must be noted that states are 
encouraged to prevent excessively lengthy proceedings – by reorganising 
judicial  systems,  for  example  –  rather  than  remedying  them  through 
compensation. The ECtHR has stated that remedies to expedite proceedings 
to prevent excessive length are preferable because this avoids a finding of 
successive violations in respect of the same set of proceedings.510

Example: Scordino v. Italy (No. 1)511 involved a claim for compensation for 
the expropriation of land. A complaint was also brought about the length 
of the proceedings, which lasted eight-and-a-half years over two levels of 
jurisdiction.

508  ECtHR, Mikulić v. Croatia, No. 53176/99, 7 February 2002.

509  The factors determining reasonableness are set out in the ECtHR’s case law; see for example, 
ECtHR, Kemmache v. France (Nos. 1 and 2) Nos. 12325/86 and 14992/89, 27 November 1991, 
para. 60. The CJEU has adopted the same approach. See CJEU, C-185/95 P, Baustahlgewebe 
GmbH v. Commission of the European Communities, 17 December 1998, para. 29.

510  ECtHR, Scordino v. Italy (No. 1) [GC], No. 36813/97, 29 March 2006, para. 183; ECtHR, Kudła v. 

Poland [GC], No. 30210/96, 26 October 2000, para. 152.

511  ECtHR, Scordino v. Italy (No. 1) [GC], No. 36813/97, 29 March 2006, paras. 106–108 and 201–205.

147

With respect to an effective remedy, the ECtHR stated that violations could 
be addressed by different types of remedies. Some states choose to com-
bine remedies to expedite the proceedings with compensation. States are 
afforded some discretion; introducing a compensatory remedy only is not 
regarded as ineffective so long as the remedy complies with the ECHR. 
There is a strong but rebuttable presumption that excessively long pro-
ceedings occasion non-pecuniary damage. But the level of compensation 
depends on the characteristics and effectiveness of the domestic remedy.

Under CoE law, a preventive remedy – for example, one that expedites pro-
ceedings by providing an immediate hearing date – is preferred. However, 
a compensatory remedy may be effective when proceedings have already 
been excessively long and a preventive remedy does not exist.512 In criminal 
cases, the ECtHR may find that reducing a sentence is an effective remedy.513

Under EU law, the CJEU has not ruled on the length of domestic proceedings 
under Article 47 of the EU Charter of Fundamental Rights, but has accepted 
compensation as an effective remedy for proceedings before the General 
Court of the CJEU that violate Article 47.

Example: In Groupe Gascogne v. Commission,514 the CJEU considered cases 
on the excessive length of proceedings and the appropriate remedy in re-
lation to proceedings before the General Court (GC).

The CJEU concluded that, where a Court of the European Union breaches 
its obligation under Article 47 of the EU Charter of Fundamental Rights to 
adjudicate cases before it within a reasonable time, the sanction must be 
an action for damages brought before the GC. This is an effective remedy.

In 2010, the Committee of Ministers of the Council of Europe issued a recom-
mendation offering practical guidance to states on this issue in terms of re-
dress.515 It focuses on expediting proceedings.

512  ECtHR, McFarlane v. Ireland [GC], No. 31333/06, 10 September 2010, para. 108.

513  ECtHR, Orchowski v. Poland, No. 17885/04, 22 October 2009 and Norbert Sikorski v. Poland, 

No. 17599/05, 22 October 2009.

514  CJEU, C-58/12 P, Groupe Gascogne SA v. European Commission, 26 November 2013, 

paras. 82–88.

515  Council of Europe, Committee of Ministers (2010), Recommendation Rec(2010)3 to member 

states on effective remedies for excessive length of proceedings, 24 February 2010.

148

Handbook on European law relating to access to justice8 

Access to justice in 
select focus areas

EU

Issues covered

CoE

Persons with disabilities

Charter of Fundamental Rights, 
Articles 6 (right to liberty and 
security), 20 (equality before the 
law), 21 (non-discrimination) and 
47 (right to an effective remedy)
Victims’ Rights Directive 
(2012/29/EU)
Directive on interpretation and 
translation (2010/64/EU)
Directive on right to information in 
criminal proceedings (2012/13/EU)
Directive on access to a lawyer 
(2013/48/EU)

Victims of crime

Charter of Fundamental Rights, 
Article 47
CJEU, C-105/03, Criminal proceed-
ings against Maria Pupino, 2005
Framework Decision on the stand-
ing of victims (2001/220/JHA)
Victims’ Rights Directive 
(2012/29/EU)
Compensation Directive 
(2004/80/EC)

Access to justice ECHR, Articles 5 (right to lib-

erty and security), 6 (right to 
a fair trial) and 14 (prohibition 
of discrimination)
ECtHR, A.K. and L. v. Croatia, 
No. 37956/11, 2013

Legal capacity

ECtHR, Shtukaturov v. Russia, 
No. 44009/05, 2008

ECHR, Article 13 (right to en 
effective remedy)
ECtHR, Dink v. Turkey, 
Nos. 2668/07 et al., 2010
Convention on the Compen-
sation of Victims of Violent 
Crimes (CETS No. 116)

149

EU

Issues covered

CoE

Access to a court 
and to a lawyer

ECHR, Article 5

Prisoners and pre-trial detainees

Charter of Fundamental Rights, 
Article 6
Directive on interpretation and 
translation (2010/64/EU)
Directive on right to information in 
criminal proceedings (2012/13/EU)
Directive on access to a lawyer 
(2013/48/EU)
Charter of Fundamental Rights, 
Article 6

The right to chal-
lenge a depriva-
tion of liberty

ECHR, Article 5 (1), (3) and (4)
ECtHR, Stanev v. Bulgaria 
[GC], No. 36760/06, 2012
ECtHR, Hassan and Others v. 
France, Nos. 46695/10 and 
54588/10, 2014
ECHR, Article 5 (5)

ECtHR, Tătar v. Romania, 
No. 67021/01, 2009
European Social Charter, 
Article 11 (right to protection 
of health)

ECtHR, Lawyer Partners 
a.s. v. Slovakia, 
Nos. 54252/07 et al., 2009

Charter of Fundamental Rights, 
Article 6

Compensation 
for unlawful 
detention

Environmental law

CJEU, C-115/09, Bund für Umwelt 
und Naturschutz Deutschland, 
Landesverband Nordrhein-West-
falen eV v. Bezirksregierung 
Arnsberg, 2011
Directive on public access to envi-
ronmental information (2003/4/EC)
Directive on public participation 
(2003/35/EC)
Regulation (EC) No 1367/2006 on 
the application of the provisions of 
the Aarhus Convention

E-justice

CJEU, Joined cases C-317/08 to 
C-320/08, Rosalba Alassini v. Tele-
com Italia SpA, Filomena Califano 
v. Wind SpA, Lucia Anna Giorgia 
Iacono v. Telecom Italia SpA and 
Multiservice Srl v. Telecom Italia 
SpA, 2010
Regulation (EC) No 1896/2006 on 
European Payment Order
Regulation (EC) No 861/2007 on 
European Small Claims Procedure

150

Handbook on European law relating to access to justiceAccess to justice in select focus areas

This chapter considers access to justice for select groups and in select focus 
areas, regarding which specific principles have been developed in CoE and 
EU law: persons with disabilities (Section 8.1), victims of crime (Section 8.2), 
prisoners and pre-trial detainees (Section 8.3), environmental law (Sec-
tion 8.4), and e-justice (Section 8.5). Other groups (specifically, children and ir-
regular migrants) are addressed in existing FRA-ECtHR handbooks on European 
law relating to asylum, borders and immigration and on European law relating 
to the rights of the child.516 It should be noted that the law set out in Chapters 1 
to 7 also applies to Chapter 8. Chapter 8 explores additional measures that may 
be available to ensure that individuals can fully enjoy access to justice.

8.1.  Persons with disabilities

Key points

•  CoE and EU law draw on the UN Convention on the Rights of Persons with Disabili-

ties (CRPD) and its principles.

•  Article 20 of the EU Charter of Fundamental Rights, which confirms that everyone is 
equal before the law, and Article 21, which prohibits discrimination on the ground of 
disability,  reinforce  persons  with  disabilities’  right  to  access  justice.  Under  CoE  law, 
Article 14 of the ECHR prohibits discrimination on various grounds in relation to ECHR 
rights. It does not expressly refer to disability, but the ECtHR has included disability in 
its interpretation of ‘other’ grounds protected under the Article.

•  Accessibility is a key principle of the CRPD. Parties to the CRPD must ensure that per-
sons  with  disabilities  have  access  –  on  an  equal  basis  with  others  –  to  the  physical 
environment, information and communications, and services and facilities. The CRPD 
also  requires  reasonable  accommodations  to  be  made  to  ensure  that  persons  with 
disabilities can access a court and participate in legal proceedings on an equal basis 
with others.

•  The CRPD, ECHR and EU Charter of Fundamental Rights contain procedural protections 
for persons detained because of mental health problems, and to ensure that individu-
als who lack legal capacity can access justice.

People  with  disabilities  face  specific  obstacles  when  trying  to  access 
justice. States therefore have additional obligations to ensure that people 

516  FRA (2014), Handbook on European law relating to asylum, borders and immigration, and 

FRA (2015), Handbook on European law relating to the rights of the child.

151

with disabilities can fully enjoy their access to justice rights.517 This section 
explores several relevant key issues, including accessibility and legal capacity. 
Section 8.3 discusses the involuntary detention of people with psychosocial 
disabilities – a frequent issue before the ECtHR.518

Article 1 of the CRPD defines disability to include people who have long-term 
physical, mental, intellectual or sensory impairments “which in interaction 
with various barriers may hinder their full and effective participation in society 
on an equal basis with others”. The CRPD confirms that persons with disabili-
ties are holders of equality rights – not charity recipients. The EU and 25 of its 
Member States have ratified the CRPD.519

8.1.1.  Access to justice

Promising practice

Guiding the police in assisting people with disabilities

In Spain, the Guardia Civil developed a specialised guide for police officers to 
help them provide better services to people with intellectual disabilities.

See Carrasco, A. et al (2013), Guía de intervención policial con personas con discapacidad 
intelectual, Madrid, Fundación Carmen Pardo-Valcarce.

Accessibility is a key principle of the CRPD and a “vital pre-condition for 
effective and equal enjoyment of different civil, political, economic, social 
and cultural rights by persons with disabilities”. Under Article 9, parties to the 
convention must ensure that persons with disabilities have access, on an equal 
basis with others, to the physical environment (e.g. buildings), information and 
communications, and to other facilities and services open to the public. Parties 
to the CRPD have to provide appropriate forms of assistance – including guides, 
readers and professional sign language interpreters – to secure accessibility. 

517  See, for example, Council of Europe, Commissioner for Human Rights (2008), Human rights and 
disability: equal rights for all, para. 3.4, and Recommendation No. 4. See also, Council of Europe, 
CEPEJ (2010), Access to justice in Europe, CEPEJ Studies No. 9.

518  ECtHR, Gorshkov v. Ukraine, No. 67531/01, 8 November 2005, para. 44. FRA (2012), Involuntary 
placement and involuntary treatment of persons with mental health problems, pp. 18–19.

519  FRA’s online table on ratification specifies which states have ratified it. Another online table 
lists UN CRPD Art. 33 bodies (bodies for monitoring the convention’s implementation). 

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Handbook on European law relating to access to justiceAccess to justice in select focus areas

The right to access court could be violated if it is impossible for an applicant to 
physically gain entry thereto – for example, due to reduced mobility.520

The right to take part in proceedings is an essential part of the right of ac-
cess to justice.521 The CRPD guarantees the right of effective access to justice 
in Article 13. This states that persons with disabilities have the same rights as 
other court users to go to court, take other people to court, act as witnesses 
and take part in what happens in court. Reasonable accommodations must be 
made to ensure that persons with disabilities can exercise these rights on an 
equal basis with others. Parties to the CRPD must therefore take appropriate 
measures, where needed, to enable a person with a disability to access and 
participate in the justice process. Support can include providing sign language, 
using documents in accessible formats, braille or easy-read, etc.522 Article 13 
also requires appropriate training for courts, police and prison staff.

Under CoE law, persons with disabilities have the right to access justice under 
Article 6 of the ECHR. Article 14 with its references to ‘other’ grounds also pro-
tects them against any discrimination in the exercise of their rights.523 Howev-
er, Article 14 is not a self-standing right: it prohibits discrimination on disability 
grounds only in relation to ECHR substantive rights. While Procotol No. 12 to 
the ECHR extends the protection against discrimination to any rights guaran-
teed under domestic law or in any act by a public authority and is thus wider in 
scope than Article 14,524 it only applies to the states that ratified it. 525

Under EU law, Article 47 of the EU Charter of Fundamental Rights sets out the 
general right of access to justice. Persons with disabilities are also protect-
ed against discrimination by Article 20 of the Charter, which confirms that 

520  ECtHR, Farcaş v. Romania, No. 32596/04, 14 September 2010, para. 48.

521  FRA’s report on access to justice in discrimination cases provides recommendations on the 

structures, procedures and support mechanisms that facilitate access to justice. See FRA 
(2012), Access to justice in cases of discrimination in the EU Steps to further equality.

522  For example, see Directive 2010/64/EU of the European Parliament and of the Council of 

20 October 2010 on the right to interpretation and translation in criminal proceedings, OJ 2010 
L 280, and European Commission (2013), Recommendation of 27 November 2013 on procedural 
safeguards for vulnerable persons suspected or accused in criminal proceedings, OJ 2013 C 378.

523  ECtHR, Glor v. Switzerland, No. 13444/04, 30 April 2009.

524  CoE, Protocol No. 12 to the Convention for the Protection of Human Rights and Fundamental 

Freedoms, CETS No.: 177, Rome, 4.11.2000, pp. 1–3.

525  For the current list of states which ratified Proctol No. 12 to the ECHR, see the Chart of 

signatures and ratifications of Treaty 177.

153

everyone is equal before the law, and by Article 21, which prohibits discrimina-
tion on the ground of disability.

Under CoE and EU law, the prohibitions on discrimination mean that states 
must take positive action to ensure that persons with disabilities can access 
their rights in practice. The action required depends on the circumstances. 
For example, providing free legal representation to persons with disabilities 
may be required to guarantee the right to a fair trial if individuals have diffi-
culties understanding the complexities of the proceedings (see Sections 3.1.2 
and 3.2.3).526

Example: In A.K. and L. v. Croatia,527 a child was placed into foster care soon 
after his birth with his mother’s consent. The mother’s parental rights were 
then removed on the grounds that she had a mild intellectual disability 
and was not able to properly care for her son. An application was made 
to restore her parental rights, but it was dismissed because third parties 
had already adopted her son. The mother had not been informed of the 
adoption proceedings and was not a party to them.

The ECtHR held that the national authorities should have ensured that 
the mother’s interests were adequately protected in the proceedings. In 
view of her personal circumstances, it was clear that the mother could 
not properly understand the full legal effect of such proceedings or 
adequately argue her case, yet the domestic court allowed her to remain 
unrepresented. The Court found it difficult to accept that the mother, 
whose speech impediment and limited vocabulary were taken as grounds 
to fear that she would not be able to teach her child to speak properly, 
would be able to argue her case in proceedings concerning her parental 
rights. This was a violation of Article 8.

Additionally, under EU law, secondary EU law provides specific rights for per-
sons with disabilities. The Victims’ Rights Directive (see Section 8.2) stipulates 
that victims with disabilities should be able to access the full rights in the di-
rective.528 The EU has also legislated specific protections for persons with dis-
abilities in criminal proceedings. For example, the Directive on the right to in-

526  ECtHR, Nenov v. Bulgaria, No. 33738/02, 16 July 2009, para. 52. 

527  ECtHR, A.K. and L. v. Croatia, No. 37956/11, 8 January 2013.

528  Directive 2012/29/EU, Recital 15.

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Handbook on European law relating to access to justiceAccess to justice in select focus areas

formation in criminal proceedings obliges Member States to ensure that the 
information is provided in simple and accessible language, taking into account 
the particular needs of vulnerable suspects or vulnerable accused persons.529 
The Directive on the right to interpretation and translation in criminal proceed-
ings requires giving appropriate assistance to persons with hearing or speech 
impediments.530 Additionally, the Directive on the right of access to a lawyer 
requires Member States to ensure that the particular needs of vulnerable sus-
pects and vulnerable accused persons are taken into account in its applica-
tion.531 Finally, the Commission adopted a Recommendation in which it recom-
mends procedural safeguards for vulnerable persons suspected or accused in 
criminal proceedings.532

8.1.2.  Capacity

Legal capacity can also be a significant issue for many individuals with 
intellectual and psychosocial disabilities. Article 12 of the CRPD recognises that 
persons with disabilities are “persons before the law” and have legal capacity 
on an equal basis with others. There is no internationally accepted definition of 
legal capacity. It has been described as the “law’s recognition of the decisions 
that a person takes: it makes a person a subject of law, and a bearer of 
legal rights and obligations”.533 This recognition is required to ensure that an 
individual’s decisions have legal effect. From an access to justice perspective, 
a lack of capacity may prevent a person from commencing litigation or hiring 
a lawyer in order to access justice.

States are required to ensure that persons who lack capacity are able to 
participate effectively in proceedings.534 Article 6 of the ECHR requires an 
applicant’s presence at proceedings in which his or her legal capacity is to be 
determined.

529  Directive 2012/13/EU, Art. 3 (2).

530  Directive 2010/64/EU, Art. 2 (3).

531  Directive 2013/48/EU, Art. 13.

532  Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable 

persons suspected or accused in criminal proceedings, OJ 2013 378.

533  See FRA (2013) Legal capacity of persons with intellectual disabilities and persons with mental 

health problems, p. 9.

534  ECtHR, Zehentner v. Austria, No. 20082/02, 16 July 2009, paras. 65 and 78.

155

Example: In Shtukaturov v. Russia,535 the applicant had a history of mental 
illness. His mother applied for a court order depriving him of his legal 
capacity on the grounds that he was incapable of leading an independent 
life and required a guardian. The applicant was not officially notified of the 
proceedings. The court examined the application at a hearing attended 
by the district prosecutor and a representative of a psychiatric hospital 
in which the applicant had been placed earlier in the year. The applicant 
was not notified of the hearing and did not attend. The applicant was 
declared legally incapable and his mother was appointed his guardian. The 
applicant later contacted a lawyer who believed the applicant was fully 
capable of understanding complex legal issues. An appeal was lodged, 
but rejected without being examined on the ground that the applicant had 
no legal capacity and could only appeal through his official guardian. The 
applicant’s mother had the applicant admitted to a psychiatric hospital, 
where he was refused permission to meet his lawyer and then refused all 
contact with the outside world. His lawyer’s attempts to seek his discharge 
from hospital were unsuccessful. An application was lodged with the 
ECtHR, which ruled – under Rule 39 of its Rules of Court – that the applicant 
and his lawyer should be provided with the necessary time and facilities 
to meet and prepare the case pending before it. The Russian authorities 
refused to comply. The applicant was discharged from hospital in May 
2006, but appears to have been later readmitted at his mother’s request.

The Court found a violation of Article 6 (1) of the ECHR. The capacity pro-
ceedings were important to the applicant because they affected his per-
sonal autonomy in almost all areas of life and entailed potential restric-
tions on his liberty. His participation was necessary both to enable him to 
present his case and to allow the judge to form a personal opinion about 
his mental capacity. Accordingly, the judge’s decision to decide the case 
on the basis of documentary evidence, without seeing or hearing the ap-
plicant – who, despite his condition, was relatively autonomous – was un-
reasonable and in breach of the principle of adversarial proceedings. The 
presence of a hospital representative and the district prosecutor, who re-
mained passive throughout the ten-minute hearing, did not make the pro-
ceedings truly adversarial. Nor had the applicant been able to challenge 
the decision, as his appeal was rejected without examination. In sum, the 
proceedings before the district court were unfair.

535  ECtHR, Shtukaturov v. Russia, No. 44009/05, 27 March 2008.

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Handbook on European law relating to access to justiceAccess to justice in select focus areas

An individual’s presence at a hearing on capacity is crucial for two reasons: 
first, to enable the person to present his/her own case, and second, to allow 
the judge to form his/her personal opinion about the applicant’s mental capac-
ity.536 A restriction on capacity may only occur where it is necessary to protect 
the person concerned.537

8.2.  Victims of crime

Key points

•  Under CoE law, the procedural rights of victims are protected under Article 13 of the 
ECHR. Victims of crime cannot claim fair trial rights under Article 6 of the ECHR, unless 
they join criminal proceedings to enforce civil law claims within the framework of the 
criminal procedure.

•  Article  47  of  the  EU  Charter  of  Fundamental  Rights  protects  all  rights  arising  from 
EU law. Victims of crime are entitled to an effective remedy in the form of criminal 
proceedings. Under the Charter, therefore, victims of crime enjoy both – the right to an 
effective remedy (Article 13 of the ECHR) and fair trial rights (Article 6 (1) of the ECHR). 
Article 47 of the Charter gives victims of crime the right to a fair and public hearing by 
an independent tribunal, the right to be advised and represented, the right to legal aid 
and the right to an effective remedy.

•  The EU Victims’ Rights Directive embeds important aspects of victims’ fair trial rights 

in EU law, including the right to advice and emotional support.

•  States must take positive action to prevent human rights violations from state agents 
as well as from private individuals. This requires states to criminalise serious human 
rights abuses and to take action to prevent and investigate violations of Articles 2 and 
3 of the ECHR and Articles 2 and 4 of the EU Charter of Fundamental Rights.

•  Some victims of crime – such as victims of trafficking – benefit from additional, spe-
cific protection both under the ECHR and the EU Charter of Fundamental Rights, and 
through EU secondary law.

536  ECtHR, X and Y v. Croatia, No. 5193/09, 3 November 2011, paras. 84–85.

537  Council of Europe, Committee of Ministers (1999), Recommendation R(99)4 to member states 

on the principles concerning the legal protection of incapable adults, 23 February 1999, Prin-
ciple 3. Restrictions May require review after some time, particularly if the person requests it; 
see ECtHR, Matter v. Slovakia, No. 31534/96, 5 July 1999, para. 68.

157

This section deals with access to justice for victims of crime. The right of vic-
tims to access justice was not always seen as compatible with ensuring the 
rights of defendants, and this right has only recently been afforded the same 
kind of standing as defendants’ rights.538 This section sets out European law 
on victims generally. It is important to note, however, that distinct groups of 
victims (such as victims of bias-motivated crime, victims of trafficking539 and 
child victims of sexual abuse540) are subjects of specialised legal measures and 
specific case law.541

Under CoE law, Article 1 of the ECHR obliges states to secure the human rights 
of those within their jurisdiction. This obligation, read together with other 
Articles – such as Article 2 (the right to life) and Article 3 (the prohibition of 
torture and inhuman and degrading treatment) – requires states to take 
positive measures to ensure that individuals rights are not violated by state 
representatives.542

These positive obligations include preventing serious violations of human 
rights by private individuals.543 They require states to provide effective pro-
tection, particularly for children and other vulnerable persons, and to prevent 
ill-treatment of which they have or ought to have knowledge.544

A key duty of states is to criminalise severe human rights violations.545 This 
is because states have an obligation to eradicate impunity for such crimes.546 
For example, states must secure the right to life by putting in place effec-
tive criminal law provisions to deter the commission of offences against the 

538  Goodey, J. (2005), Victims And Victimology: Research, Policy and Practice.

539  Council of Europe, Convention on Action against Trafficking in Human Beings, CETS No. 197, 2005. 

The Czech Republic is the only EU Member State that has not yet ratified the convention.

540  Council of Europe, Convention on Protection of Children against Sexual Exploitation and Sexual 

Abuse, CETS No. 201, 2007.

541  For example, see ECtHR, Ciorcan and Others v. Romania, Nos. 29414/09 and 44841/09, 27 Janu-

ary 2015 (racially motivated crime); ECtHR, Rantsev v. Cyprus and Russia, No. 25965/04, 7 Jan-
uary 2010 (trafficking of people); ECtHR, P. and S. v. Poland, No. 57375/08, 30 October 2012 
(child victim of sexual abuse).

542  ECtHR, Nachova and Others v. Bulgaria [GC], Nos. 43577/98 and 43579/98, 6 July 2005, paras. 93–97.

543  ECtHR, M. and Others v. Italy and Bulgaria, No. 40020/03, 31 July 2012, paras. 99–100.

544  ECtHR, Z and Others v. the United Kingdom [GC], No. 29392/95, 10 May 2001, para. 73.

545  ECtHR, X and Y v. the Netherlands, No. 8978/80, 26 March 1985.

546  Council of Europe, Committee of Ministers (2011), Guidelines of the Committee of Minis-

ters of the Council of Europe on eradicating impunity for serious human rights violations, 
30 March 2011.

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person, backed up by law enforcement machinery to prevent, suppress and 
punish breaches of such provisions.547 Similar duties arise under Article 3.548 
This includes ill-treatment by private individuals.549 However, the ill-treatment 
must attain a minimum level of severity to fall within the scope of Article 3.550 
States’ positive obligations also extend to cases involving serious violations of 
personal integrity and dignity – for example, sexual offences.551Additionally, to 
enable the protection of these rights, states must ensure that there is an ef-
fective investigation into any violations of Articles 2 and 3 of the ECHR.552 The 
state must act of its own motion in commencing an investigation and should 
not rely on the victim’s initiative.553

Failing to pursue an obvious line of inquiry in the course of an investigation 
may also violate Article 2.554 Indeed, the ECtHR has held that “any deficiency 
in the investigation which undermines its ability to identify the perpetrator or 
perpetrators will risk falling foul of this standard”.555

Example: In Dink v. Turkey,556 the applicants were family members of 
a Turkish national of Armenian origin who was editor-in-chief of a Turk-
ish-Armenian weekly newspaper. He wrote a series of articles on Armeni-
an identity. Extreme Turkish nationalists reacted to the articles by staging 
demonstrations, writing threatening letters and lodging a criminal com-
plaint. Mr. Dink was found guilty of denigrating ‘Turkishness’ and received 
a suspended prison sentence. He was later assassinated. Several investiga-
tions and proceedings aimed at establishing whether the police had known 
about the assassination plot were discontinued.

547  ECtHR, Osman v. the United Kingdom [GC], No. 23452/94, 28 October 1998, para. 115. See also 

Menson v. the United Kingdom, No. 47916/99, 6 May 2003, para. 1.

548  ECtHR, Valiulienė v. Lithuania, No. 33234/07, 26 March 2013, para. 74.

549  ECtHR, Mehmet Ümit Erdem v. Turkey, No. 42234/02, 17 July 2008, para. 26.

550  ECtHR, Costello-Roberts v. the United Kingdom, No. 13134/87, 25 March 1993, para. 30. For 
a more recent case, see ECtHR, Rumor v. Italy, No. 72964/10, 27 May 2014, para. 57.

551  ECtHR, X and Y v. the Netherlands, No. 8978/80, 26 March 1985.

552  ECtHR, Gäfgen v. Germany [GC], No. 22978/05, 1 June 2010, para. 117.

553  ECtHR, Cadiroğlu v. Turkey, No. 15762/10, 3 September 2013, para. 30.

554  ECtHR, Kolevi v. Bulgaria, No. 1108/02, 5 November 2009, para. 201.

555  ECtHR, Ramsahai and others v. the Netherlands [GC], No. 52391/99, 15 May 2007, para. 324.

556  ECtHR, Dink v. Turkey, Nos. 2668/07, 6102/08, 30079/08, 7072/09 and 7124/09, 

14 September 2010, para. 64.

159

In view of the reactions to Mr Dink’s articles, the security forces could 
reasonably be considered to have been informed of the intense hostili-
ty towards him. Furthermore, it appeared that police departments were 
informed of the likelihood of an assassination attempt and even of the 
identity of the alleged instigators. The state nonetheless did not take rea-
sonable measures to prevent the real and immediate risk to life and thus 
breached Article 2 of the ECHR.

Victims of crime are entitled to an effective remedy in the form of criminal 
proceedings. The absence of criminal proceedings may violate Article 13 of 
the ECHR.557 Access to the criminal justice system is not enough; the state 
must also ensure that the system is effective.558 For example, if the defences 
available to an accused are too broad, the criminal law may not be effective 
in protecting victims’ rights.559 Additionally, although Article 6 of the ECHR 
does not explicitly address the situation of victims, the principles of a fair trial 
require that, in appropriate cases, the rights of victims are acknowledged and 
balanced against those of the defence.560

Promising practice

Supporting victims with learning disabilities

The  Portuguese  Association  for  Victim  Support  (APAV)  supports  victims  of 
crime and their families and friends. In addition to generic support, APAV also 
supplies  specialised  services  such  as  legal,  psychological  and  social  support. 
APAV  also  plays  a  role  in  crime  prevention  by  carrying  out  awareness  and 
prevention  campaigns  directed  at  various  audiences,  mainly  schools.  It  also 
does pro bono legal work although it is not APAV’s mission to represent victims 
in court proceedings.

Source: FRA (2015), Victims of crime in the EU: the extent and nature of support for victims, 
p. 114.

EU law provides the same protection. ECHR rights referred to above are also set 
out in the EU Charter of Fundamental Rights: Article 2 (right to life), Article 4 

557  ECtHR, A v. Croatia, No. 55164/08, 14 October 2010, paras. 78 and 87.

558  ECtHR, M.C. v. Bulgaria, No. 39272/98, 4 December 2003, paras. 150–151.

559  ECtHR, A. v. the United Kingdom, No. 100/1997/884/1096, 23 September 1998, para. 24.

560  ECtHR, Doorson v. the Netherlands, No. 20524/92, 26 March 1996, para. 70; ECtHR, Y. v. Slovenia, 

No. 41107/10, 28 May 2015.

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(prohibition of torture and inhuman or degrading treatment or punishment) and 
Article 7 (respect for private and family life). The Explanations to Article 52 (3) 
of the Charter confirm that these rights correspond to the rights in the ECHR and 
are to be given the same meaning and scope (see Chapter 1 and the Figure).

However, Article 47 of the EU Charter of Fundamental Rights also provides fair 
trial rights to the victims of crime. Article 47 applies to all rights arising from 
EU law. This means that, where Charter rights are engaged, or where rights are 
set out in primary or secondary EU legislation (such as directives), the rights in 
Article 47 will apply. Under Article 47, fair trial rights include the right to a fair 
and public hearing by an independent tribunal, the right to be advised and rep-
resented, the right to legal aid and the right to an effective remedy. EU Mem-
ber States are required to provide effective judicial protection for these rights 
at national level (see Chapter 1 and Section 5.1 on the meaning of an effec-
tive remedy). The principle of effectiveness means that domestic law must not 
make it impossible or excessively difficult to enforce rights under EU law.561

Under EU law, the rights of crime victims are further embedded in Directive 
2012/29/EU (the Victims’ Rights Directive), which replaced the Framework 
Decision on the standing of victims (although the latter remains in force for 
Denmark).562 The Victims’ Rights Directive establishes minimum standards on 
the rights, support and protection of victims of crime. It states that “[c]rime 
is a wrong against society as well as a violation of the individual rights of 
victims” (Recital 9). Article 2 defines the term “victim” broadly: (i) a natural 
person who has suffered harm, including physical, mental or emotional harm 
or economic loss which was directly caused by a criminal offence; (ii) family 
members of a person whose death was directly caused by a criminal offence 
and who have suffered harm as a result of that person’s death.563

561  CJEU, C-33/76, Rewe-Zentralfinanz eG and Rewe-Zentral AG v. Landwirtschaftskammer für das 

Saarland, 16 December 1976. For a more recent case, see CJEU, C-415/11, Mohamed Aziz v. Caixa 
d´Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa), 14 March 2013, para. 50, and 
CJEU, Joined cases C-482/13, C-484/13, C-485/13, C-487/13, Unicaja Banco SA v. José Hidalgo 
Rueda and Others, Caixabank SA v. Manuel María Rueda, Ledesma and Others, Caixabank 
SA v. José Labella Crespo and Others and Caixabank SA v. Alberto Galán Luna and Others, 
21 January 2015.

562  Directive 2012/29/EU; Council Framework Decision 2001/220/JHA of 15 March 2001 on the 

standing of victims in criminal procedure, OJ L 82, 22 March 2001. 

563  The Framework Decision did not include family members in the event of a victim’s death. The 

definition in the directive is similar to that in Council of Europe, Committee of Ministers (2006), 
Recommendation Rec(2006)8 to member states on assistance to crime victims, 14 June 2006, 
para 1.1.

161

The Victims’ Rights Directive obliges Member States to provide support ser-
vices (Articles 8 and 9) and certain fair trial rights – the right to be heard (Ar-
ticle 10) and the right to legal aid (Article 13) – to victims. It also contains new 
provisions on a right to review in the event of a decision not to prosecute (Ar-
ticle 11) and expanded provisions on specific protection needs (Articles 22–24).

Victims must be given practical support to enable them to access justice.564 This 
includes providing victim support, raising victims’ awareness of their rights, 
and sufficient training of law enforcement personnel.

The CJEU has not reviewed victims’ rights cases under the EU Charter of 
Fundamental Rights or the Victims’ Rights Directive, but has addressed cases 
involving the Framework Decision on the standing of victims.

Example: In Criminal proceedings against Maria Pupino,565 Mrs Pupino, 
a nursery school teacher, was charged with inflicting serious injuries on 
her pupils. Article 8 of the Framework Decision contained specific protec-
tions for “vulnerable” victims. A preliminary reference on the provision’s 
application was made to the CJEU.

The CJEU held that young children allegedly mistreated by their teacher 
are “vulnerable” victims within the meaning of the Framework Decision. 
Therefore, they were entitled to the specific protection provided by it. The 
national court had to interpret national law “so far as possible, in the light 
of the wording and purpose of the Framework Decision”.

CoE and EU law also provide for compensation for crime victims. This obligation 
results from the “harm arising from the infringement of rights which it was the 
State’s duty to protect but which it was not able to guarantee”.566 Section 5.2.1 
details ECtHR and CJEU case law on compensation in general – but additional, 
specific provisions relate to victims of crime. For example, Article 16 of the Vic-
tims’ Rights Directive also addresses compensation, and the EU Compensation 
Directive established a system of cooperation to facilitate access to compensa-

564  For a detailed discussion of victims’ rights to support, see FRA (2015), Victims of crime in the 

EU: the extent and nature of support for victims. 

565  CJEU, C-105/03, Criminal proceedings against Maria Pupino, 16 June 2005.

566  Opinion of Advocate General Lenz of 6 December 1988 in CJEU, C-186/87, Ian William Cowan 
v. Trésor public, 2 February 1989. The case concerned much broader principles than victims’ 
rights.

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tion for victims of crimes in cross-border situations.567 Additionally, the Council 
of Europe’s Convention on the Compensation of Victims of Violent Crimes con-
tains minimum standards for state compensation for crime victims.568 Finally, 
the Committee of Ministers of the Council of Europe has produced several rec-
ommendations relating to crime victims.569

8.3.  Prisoners and pre-trial detainees

Key points

•  Prisoners  and  pre-trial  detainees  require  access  to  court  to  defend  themselves  in 
criminal proceedings or to pursue civil actions. They also have the right to legal rep-
resentation in parole and disciplinary hearings.

•  Articles 5 (1), (3) and (4) of the ECHR and Article 6 of the EU Charter of Fundamental 
Rights provide specific protections for prisoners. Article 5 (1) guarantees the right to 
liberty; Article 5 (3) requires a detainee to be brought promptly before a judge; and 
Article 5 (4) gives detainees the right to pursue proceedings to challenge the lawful-
ness of their detention. Although this is not specifically set out in the text of Article 6 
of the EU Charter of Fundamental Rights, the Explanations to the Charter confirm that 
Article 6 guarantees all rights set out in Article 5 of the ECHR.

•  Article 5 (5) of the ECHR and Article 6 of the EU Charter of Fundamental Rights provide 

the right to compensation for unlawful arrest or detention.

Prisoners and pre-trial detainees may need to challenge their detention, their 
sentence or conditions of detention. They also have the right to legal assis-
tance in parole and disciplinary hearings. Prisoners and pre-trial detainees 
may also need to access a court to address a range of civil rights matters and 
obligations connected to their lives outside of prison – for example, employ-
ment, fines, debts, and family problems. However, because they are in prison, 

567  Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims, 

OJ 2004 L 26.

568  Council of Europe, Convention on the Compensation of Victims of Violent Crimes, CETS No. 116, 

1983.

569  Council of Europe, Committee of Ministers (2006), Recommendation Rec(2006)8 to member 

states on assistance to crime victims, 14 June 2006; Council of Europe, Committee of Ministers 
(2005), Recommendation Rec(2005)9 to member states on the protection of witnesses and 
collaborators of justice, 20 April 2005. See also Council of Europe, CEPEJ (2008), Checklist for 
promoting the quality of justice and the court, pp. 19–21 (access to courts).

163

prisoners and pre-trial detainees may have limited practical opportunity to ob-
tain legal information, advice or representation. Additionally, other complica-
tions can make prisoners more vulnerable: they may have disabilities, mental 
health problems or “have had very little successful educational experience”.570 
This section sets out some of the European law relating to the right to access 
to justice for those remanded in custody or deprived of their liberty following 
conviction.571

It should be noted that the UN has also developed non-binding guidelines with 
respect to persons held in any form of custody: the draft Basic Standards for 
people deprived of their liberty.572 The guidelines reaffirm that habeas corpus 
petitions (petitions filed with courts by persons who object to their own or 
someone else’s detention) must be heard by a competent, independent and 
impartial court.573 The document also provides guidance on legal representa-
tion and legal aid,574 and a detainee’s right to contact lawyers, family members 
and other interested parties. 575

8.3.1.  Access to a court and a lawyer

The right to legal aid and the right to be advised, defended and represented 
are set out in Chapters 3 and 4. The rights are also discussed in this section be-
cause of the specific difficulties faced by prisoners and pre-trial detainees.

570  Council of Europe, Committee of Ministers (1989), Recommendation Rec(89)12 to member 

states on Education in Prison, 13 October 1989. 

571  This is based on the definition of “prisoner” in Rule 10.1 of Council of Europe, Committee of 

Ministers (2006), Recommendation Rec(2006)2 on the European Prison Rules, 11 January 2006. 
See Section 8.1 for references to detention and mental health patients.

572  UN, Draft basic principles and guidelines on remedies and procedures on the right of anyone 
deprived of his or her liberty by arrest or detention to bring proceedings before the court.

573  Principle 6 and Guideline 4. See also Guideline 14 on authorities’ obligation to justify the need 

and proportionality of detention.

574  Principle 9 and Guideline 8.

575  Principle 10.

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Promising practice

Promoting access to justice for prisoners with learning 
disabilities

In Wales, a multi-agency group – including major disability charities, the Prison 
Reform  Trust,  the  police,  the  prison  and  prosecution  service,  and  the  Welsh 
government – has produced an access to justice guidebook. It aims to support 
responsive and appropriate management of adults with learning disabilities in 
the criminal justice system in Wales. It also intends to support commissioners, 
planners  and  practitioners  across  health,  social  care  and  criminal  justice 
services in improving service provision.

Source: Access to justice: A Guidebook supporting the responsive and appropriate management 
of adults with a learning disability in the criminal justice system in Wales (2013)

Under CoE law, prisoners have a right of access to the courts in non-criminal 
cases, and, through this, the right of access to lawyers (see Section 2.1).576 
Any restrictions on a prisoner’s access to a lawyer must be “proportionate 
to the aim sought” and should not be such that the “very essence of the 
right is impaired”.577 Effective access to legal advice requires confidential 
communications; this can cause practical difficulties for individuals in prison 
(see Sections 4.2.1 and 4.2.4). It should be noted that Article 8 of the ECHR 
(right to respect for private and family life, home and correspondence) may be 
violated if legal correspondence is read, save in exceptional circumstances – for 
example, where there is reasonable cause to believe that the letter’s contents 
could endanger prison security or the safety of others.578

Article 6 of the ECHR has also been cited in relation to disciplinary procedures.579 
This is supported by Article 59 (c) of the European Prison Rules, which stipulate 
that  prisoners  charged  with  disciplinary  offences  are  allowed  to  defend 
themselves in person or through legal assistance, if required by the interests 
of justice.

576  ECtHR, Golder v. the United Kingdom, No. 4451/70, 21 February 1975.

577  ECtHR, Ashingdane v. the United Kingdom, No. 8225/78, 28 May 1985, para. 57. 

578  ECtHR, Piechowicz v. Poland, No. 20071/07, 17 April 2012, paras. 239–40. 

579  ECtHR, Gülmez v. Turkey, No. 16330/02, 20 May 2008, paras. 37–39.

165

Under EU law, the rights under Article 47 of the EU Charter of Fundamental 
Rights correspond to the rights set out in Article 6 of the ECHR.580 Additionally, 
secondary EU legislation outlines specific rights for suspects or accused per-
sons in criminal proceedings – for example, the right to information, to transla-
tion and interpretation, and to access a lawyer. 581

8.3.2.  Right to challenge a deprivation of liberty

The lawfulness of detention is a frequent issue before the ECtHR. Detention 
includes the involuntary detention of people with psychosocial disabilities.582 
In such cases, objective medical evidence is required, as are procedural safe-
guards – including legal representation – that are effective in practice as well 
as in law.583

Example: In Stanev v. Bulgaria,584 in 2000 a court declared the applicant 
to be partially lacking legal capacity on the ground that he was suffering 
from schizophrenia. In 2002, the applicant was placed under partial guard-
ianship against his will and admitted to a social care home for people with 
‘mental disorders’ in a remote location. Following official visits in 2003 and 
2004, the European Committee for the Prevention of Torture and Inhuman 
or Degrading Treatment or Punishment (CPT) concluded that the conditions 
at the home could be said to amount to inhuman and degrading treatment. 
The applicant, through his lawyer, asked the public prosecutor and the 
mayor to institute proceedings for his release from partial guardianship, 
but his requests were refused. His guardian likewise refused to take such 
action. In 2006, on his lawyer’s initiative, the applicant was examined by 
an independent psychiatrist, who concluded that the diagnosis of schiz-
ophrenia was inaccurate. The psychiatrist’s view was that the applicant’s 
stay in the social care home was very damaging to his health.

580  EU Charter of Fundamental Rights, Art. 52 (3).

581  Directive 2010/64/EU (does not apply to Denmark); Directive 2012/13/EU (does not apply to 
Denmark); Directive 2013/48/EU (does not apply to Ireland, the United Kingdom or Denmark).

582  ECtHR, Gorshkov v. Ukraine, No. 67531/01, 8 November 2005, para. 44. FRA (2012), Involuntary 
placement and involuntary treatment of persons with mental health problems, pp. 18–19.

583  ECtHR, Winterwerp v. the Netherlands, No. 6301/73, 24 October 1979, para. 39, and ECtHR, 

Megyeri v. Germany, No. 13770/88, 12 May 1992, para. 23.

584  ECtHR, Stanev v. Bulgaria [GC], No. 36760/06, 17 January 2012.

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The ECtHR concluded that the decision to place the applicant in the home 
without obtaining his prior consent was invalid under Bulgarian law. This 
was in itself sufficient for the Court to establish that the applicant’s dep-
rivation of liberty was contrary to Article 5 (1) of the ECHR. In relation to 
Article 5 (4) of the ECHR, the government did not demonstrate that there 
was any domestic remedy capable of affording the applicant the direct op-
portunity to challenge the lawfulness of his placement in the social care 
home and the continued implementation of that measure. The courts had 
not been involved and domestic legislation did not provide for automatic 
periodic judicial review of placement in such homes. Furthermore, since 
the applicant’s placement in the home was not recognised as a deprivation 
of liberty in Bulgarian law, there was no provision for any domestic legal 
remedies by which to challenge its lawfulness in terms of a deprivation of 
liberty. Thus, Article 5 (4) was violated. Finally, as no right to compensation 
was available to the applicant for the unlawful deprivation of his liberty, 
the ECtHR also found a violation of Article 5 (5).

CoE law and EU law provide legal protection against the deprivation of liberty. 
Article 5 (1) of the ECHR and Article 6 of the EU Charter of Fundamental Rights 
guarantee a person’s liberty and – according to the Explanations to the Char-
ter – contain the same rights.585 According to CoE law and EU law, the decision 
to deprive someone of their liberty must always be made in “accordance with 
a procedure prescribed by law”.586 Detention must always be compatible with 
the purposes set out in Article 5 (1) of the ECHR and Article 6 of the EU Charter 
of Fundamental Rights.587

Prisoners are entitled to access a court to challenge a deprivation of liberty. 
To ensure that access to the court is practical and effective, prisoners may be 
entitled to legal assistance and legal aid. Under CoE law, for pre-trial detainees, 
Article 5 (3) of the ECHR requires that persons charged with criminal offenc-
es are “brought promptly before a judge or other officer” to make a decision 
on their detention or release pending trial, and to ensure that the trial occurs 

585  Explanations relating to the Charter of Fundamental Rights, OJ 2007 C303/17.

586  ECtHR, Tsarenko v. Russia, No. 5235/09, 3 March 2011, para. 62.

587  ECtHR, L.B. v. Belgium, No. 22831/08, 2 October 2012, paras. 92, 101. See also Council of Europe, 
Committee of Ministers (2006), Recommendation Rec(2006)2 on the European Prison Rules, 
and Council of Europe, Committee of Ministers (2006), Recommendation Rec(2006)13 to 
member states on the use of remand in custody, the conditions in which it takes place and the 
provision of safeguards against abuse.

167

within a reasonable time. The provision aims to protect against ill-treatment 
and unjustified inferences with individual liberty.

In respect of the word ‘promptly’, the ECtHR has said that any delay in excess 
of four days is too long.588 However, even a period of less than four days may 
be incompatible with the promptness requirement if the specific circumstances 
of the case justify a faster presentation before the court. 589

Example: In Hassan and Others v. France,590 nine applicants were allegedly 
involved in acts of piracy. The applicants were arrested and held in custody 
by French military personnel before being taken to France in a military air-
craft. They were under the control of the French authorities for four days 
and some twenty hours in one case, and for six days and sixteen hours in 
the other, before being held in police custody for 48 hours and brought be-
fore an investigating judge, who placed them under judicial investigation. 
Six applicants subsequently received prison sentences.

In relation to Article 5 (3) of the ECHR, the ECtHR noted that the context in 
which the applicants were arrested was “out of the ordinary”: 6,000 km 
from mainland France, in a situation where the Somali authorities were in-
capable of putting them on trial. Nothing suggested that the transfer took 
longer than necessary. The “wholly exceptional circumstances” explained 
the length of the deprivation of liberty endured by the applicants between 
their arrest and their arrival on French soil. On their arrival in France, how-
ever, the applicants were taken into police custody for 48 hours rather 
than being brought immediately before an investigating judge. Nothing 
justified that additional delay. Article 5 (3) was not designed to give au-
thorities “the opportunity to intensify their investigations for the purpose 
of bringing formal charges against the suspects”. Article 5 (3) of the ECHR 
was breached.

588  ECtHR, McKay v. the United Kingdom [GC], No. 543/03, 3 October 2006, para. 47. Compare 
this with UN, Human Rights Committee (2014), General Comment No. 35 on Art. 9 (Liberty 
and Security), 16 December 2014, para. 33 (stating that a delay beyond 48 hours should be 
“absolutely exceptional”). 

589  ECtHR, Gutsanovi v. Bulgaria, No. 34529/10, 15 October 2013, paras. 154 and 159.

590  ECtHR, Hassan and Others v. France, Nos. 46695/10 and 54588/10, 4 December 2014.

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When a pre-trial detainee appears before court, there must be a genuine re-
view on the merits.591 When a judge makes a decision on detention or bail, 
she/he must pay due regard to the presumption of innocence, examine all 
facts for and against a release, and set her/his decision out clearly.592 Whether 
it is reasonable for an accused to remain in detention must be assessed on the 
facts of the case.593 It is not for the detained person to prove they should be 
released.594

Further protection is found in the ‘speediness’ requirement under Article 5 (4) 
of the ECHR and Article 6 of the EU Charter of Fundamental Rights. 595 Under Ar-
ticle 5 (4) of the ECHR, states are required to establish independent legal pro-
cesses for detainees to appear before judges, who must determine “speedily” 
the lawfulness of their continuing detention. States are obliged to ensure that 
the following requirements are met:

•  decisions on legal aid and representation should be made quickly;596

• 

the person detained is entitled to regular reviews;597

• 

• 

the applicant is likely to be entitled to legal representation to access the 
court;598

legal assistance should be paid for by the state if necessary and must 
be effective (see Chapter 4 on the right to be advised, defended and 
represented).599

Article 5 (4) of the ECHR is the habeas corpus provision. It requires regu-
lar reviews of continued detention and allows a detainee to require a court 
to consider whether the grounds for detention still exist. The lawfulness of 

591  ECtHR, Aquilina v. Malta, No. 25642/94, 29 April 1999, para. 47.

592  ECtHR, Bykov v. Russia [GC], No. 4378/02, 10 March 2009, para. 63.

593  ECtHR, Idalov v. Russia [GC], No. 5826/03, 22 May 2012, para. 139.

594  ECtHR, Bykov v. Russia [GC], No. 4378/02, 10 March 2009, para. 64.

595  Explanations relating to the Charter of Fundamental Rights, OJ 2007 C303/17.

596  ECtHR, L.R. v. France, No. 33395/96, 27 June 2002, para. 38.

597  ECtHR, M.H. v. the United Kingdom, No. 11577/06, 22 October 2013, paras. 97–99.

598  ECtHR, Megyeri v. Germany, No. 13770/88, 12 May 1992, para. 23.

599  ECtHR, Magalhães Pereira v. Portugal, No. 44872/98, 26 February 2002, paras. 54–63.

169

a detention under Article 5 (1) does not absolve states from the speedy as-
sessment requirement under Article 5 (4).600 The question of speediness must 
be determined in light of the circumstances of each case.601 The same factors 
considered regarding the reasonable time requirement under Article 6 (1) of 
the ECHR and Article 47 of the EU Charter of Fundamental Rights apply (see 
also Section 7.2 on the criteria for determining reasonableness).602 Time gen-
erally starts to run when an application for release is made/proceedings are 
instituted and ends with the final determination of the legality of the appli-
cant’s detention.603 The exceptional complexity of a case (for example, due to 
complex medical or evidential issues) does not absolve national authorities 
from their obligation to comply with the reasonable time requirement.604 Ar-
ticle 5 (4) also applies to proceedings that would not end an applicant’s de-
tention, but would result in his/her move to another form of detention – for 
example, from a hospital to a prison.605

Under EU law, although this is not specifically set out in the text of Article 6 of 
the EU Charter of Fundamental Rights, the Explanations to the Charter confirm 
that Article 6 guarantees all rights set out in Article 5 of the ECHR. This means 
that ECtHR case law is important for interpreting Article 6, because this Arti-
cle is given the same meaning and scope as Article 5 of the ECHR.

The Council of Europe and the European Union have produced instruments 
to facilitate allowing prisoners to serve their sentences in their countries of 
origin.606 Standards have also been produced to promote and facilitate the 

600  ECtHR, Douiyeb v. the Netherlands [GC], No. 31464/96, 4 August 1999, para. 57.

601  ECtHR, Mooren v. Germany [GC], No. 11364/03, 9 July 2009, para. 106.

602  Ibid., para. 106.

603  ECtHR, Rehbock v. Slovenia, No. 29462/95, 28 November 2000, para. 85.

604  ECtHR, Frasik v. Poland, No. 22933/02, 5 January 2010, para. 63.

605  ECtHR, Kuttner v. Austria, No. 7997/08, 16 July 2015, paras. 36–38. 

606  Council of Europe, Convention on the transfer of sentenced persons, CETS No. 112, 1983; 

Council of Europe, Additional Protocol to the Convention on the transfer of sentenced persons, 
CETS No. 167, 1997; Council Framework Decision 2008/909/JHA of 27 November 2008 on the 
application of the principle of mutual recognition to judgements in criminal matters imposing 
custodial sentences or measures involving deprivation of liberty for the purpose of their 
enforcement in the European Union, OJ L 327 of 5.12.2008, as amended by Framework Decision 
2009/299/JHA OJ 2009 L 81. See also ECtHR, Somogyi v. Hungary, No. 5770/05, 11 January 2011, 
para. 22 (applicant spent longer than he should have in prison after the transfer of his sentence).

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transfer of alternative sanctions.607 Prisoners should never be remanded in 
custody just because they are foreign.608 Under EU law, pursuant to the Frame-
work Decision on the European Arrest Warrant, individuals may be transferred 
to another state practically automatically.609 Therefore, the EU has established 
rights in directives to reinforce fair trial rights in Member States (see above).

8.3.3.  Compensation for unlawful detention

Article 5 (5) of the ECHR sets out an enforceable right to compensation for in-
dividuals arrested or detained in contravention of Article 5.610 According to the 
Explanations to the EU Charter of Fundamental Rights, rights guaranteed by 
Article 5 of the ECHR are protected via Article 6 of the Charter.

There is no right to a particular amount of compensation.611 States have a wide 
margin of appreciation regarding the amount to be paid, and may require 
proof of damage.612 However, automatically crediting the total period of the 
individual’s pre-trial detention towards another penalty imposed in respect 
of an unrelated offence does not comply with the right to compensation 

607  Council of Europe, Convention on the supervision of conditionally sentenced or conditionally 

released offenders, CETS No. 51, 1964; Council Framework Decision 2009/829/JHA of 23 Octo-
ber 2009 on the application, between Member States of the European Union, of the principle of 
mutual recognition to decisions on supervision measures as an alternative to provisional deten-
tion, OJ 2009 L 294; Council Framework Decision 2008/947/JHA of 27 November 2008 on the 
application of the principle of mutual recognition to judgments and probation decisions with 
a view to the supervision of probation measures and alternative sanctions, OJ 2008 L 337/102. 
Council of Europe, Committee of Ministers (2010), Recommendation Rec(2010)1 to member 
states on European Probation Rules, 20 January 2010; Council of Europe, Committee of Minis-
ters (2000), Recommendation Rec(2000)22 to member states on improving the implementa-
tion of the European rules on community sanctions and measure, 29 November 2000; Council 
of Europe, Committee of Ministers (1992), Recommendation Rec(92)16 to member states on 
the European rules on community sanctions and measures, 19 October 1992 .

608  Council of Europe, Committee of Ministers (2012), Recommendation Rec(2012)12 to member 

states concerning foreign prisoners, 10 October 2012, para. 13.2.b (addressing difficulties these 
prisoners may face and establishing basic principles for their treatment).

609  Framework Decision 2002/584/JHA on the European arrest warrant and the surrender proce-

dures between Member States OJ 2002 L 190/1. 

610  See also Protocol 7 to the ECHR, Art. 3 (addressing compensation in the case of miscarriage of 

justice).

611  ECtHR, Damian-Burueana and Damian v. Romania, No. 6773/02, 26 May 2009, para. 89.

612  ECtHR, Wassink v. the Netherlands, No. 12535/86, 27 September 1990, para. 38.

171

contained in Article 5 (5).613 Also, an award cannot be considerably lower than 
those awarded by the ECtHR for similar Article 5 violations.614

8.4.  Environmental law

Key points

•  The ECHR does not guarantee a right to a healthy environment, but ECHR rights – such 
as the right to respect for private and family life – may be implicated in environmental 
cases. An actio popularis (public interest litigation) to protect the environment is not 
envisaged by the ECtHR.

•  The  EU  has  adopted  the  Aarhus  Convention.  This  involves  the  public  in  the  deci-
sion-making  process  on  environmental  issues,  and  guarantees  access  to  justice  for 
individuals and NGOs when environmental law and/or provisions of the convention 
are breached.

•  National rules that restrict the standing of some NGOs may run counter to EU law.

The environment has been defined to include natural resources such as air, wa-
ter, soil, fauna and flora; property that forms part of the cultural heritage; and 
the characteristic aspects of the landscape.615 Environmental issues can involve 
civil, political, social and economic rights. The right to a healthy environment is 
also a collective right because healthy environments affect communities – both 
present and future.

For example, Article 1 of the UN Aarhus Convention sets out the right of present 
and future generations to live in an environment adequate for their health and 
well-being.616 The convention recognises that achieving this requires the so-called 
‘three pillars’: access to information, public participation, and access to justice – 
i.e. removing barriers to justice, such as excessive costs for challenging decisions.  
Section 6.2 notes that strict legal standing rules can amount to procedural barri-

613  ECtHR, Włoch v. Poland (No. 2), No. 33475/08, 10 May 2011, para. 32.

614  ECtHR, Cristina Boicenco v. Moldova, No. 25688/09, 27 September 2011, para. 43.

615  Council of Europe, Convention on Civil Liability for Damage Resulting from Activities Dangerous 

to the Environment, CETS No. 150, 1993, Art. 2 (10).

616  UN, Economic Commission for Europe (UNECE) (1998), Convention on Access to Informa-

tion, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 
25 June 1998. This has been ratified by the EU and all but one EU Member State (Ireland).

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ers to accessing justice. Article 9 of the Aarhus Convention outlines specific rights 
on access to justice in environmental matters (the third pillar).

Under CoE law, the ECHR does not provide for a right to a healthy environment, 
but the ECtHR’s case law confirms that certain ECHR rights are implicated in 
environmental cases – for example, Article 2 (right to life)617 and Article 8 (right 
to respect for private and family life).618 Severe environmental pollution may 
affect individuals’ well-being and prevent them from enjoying their homes, ad-
versely affecting their private and family life.619

Example: In Tătar v. Romania,620 the applicants lived in a residential area 
near a gold ore extraction plant for a mine. They lodged several complaints 
about the risks to which they were exposed because of a company’s use 
of a technical procedure involving sodium cyanide. In 2000, even though 
the authorities reassured the applicants that sufficient safety mechanisms 
existed, a large quantity of polluted water spilled into various rivers, cross-
ing several borders and affecting the environment of several countries. 
The applicants claimed that the pollution adversely affected their health.

The ECtHR held that Article 8 is applicable in environmental cases when 
pollution is directly caused by the state or when the state’s responsibility 
is triggered by inadequate regulation of the private sector. The Court 
held that the Romanian authorities failed to carry out a satisfactory prior 
assessment of the possible risks, did not give adequate information to the 
people concerned and did not put a stop to the industrial activity after the 
accident. Therefore, Article 8 was breached. Although Article 8 does not 
contain an explicit procedural requirement, the decision-making process 
leading to measures of interference must be fair and afford due respect to 
the interests of the individual as safeguarded by the Article.

617  For example, see ECtHR, Öneryıldız v. Turkey [GC], No. 48939/99, 30 November 2004,  

paras. 111–118 (on procedural aspect of Art. 2).

618  For example, see ECtHR, Lopez Ostra v. Spain, No. 16798/90, 9 December 1994, para. 58; ECtHR, 
Taşkin and others v. Turkey, No. 46117/99, 10 November 2004, para. 126. See also Council 
of Europe (2012), Manual on Human Rights in the Environment. See also Council of Europe, 
Convention on the protection of the environment through criminal law, CETS No. 172, 1998 
(requiring States Parties to criminalise serious environmental offences and cooperate in their 
enforcement).

619  ECtHR, Guerra and others v. Italy [GC], No. 14967/89, 19 February 1998, para. 60.

620  ECtHR, Tătar v. Romania, No. 67021/01, 27 January 2009.

173

Only those specifically affected have the right to participate in decision-making in 
environmental cases. An actio popularis – legal action to protect or enforce rights 
enjoyed by the public (public interest litigation) – to protect the environment is 
not envisaged.621

Promising practice

Promoting environmental democracy in practice

Lithuania  scored  highly  across  pillars  of  the  Environmental  Democracy 
Index  (EDI)  –  which  evaluates  countries  based  on  recognised  environmental 
standards  –  and  received  a  top  score  overall  in  the  legal  index.  The  public 
enjoys the right to appeal refusals to provide environmental information and to 
bring a wide array of claims when rights are violated or harms are committed. 
Lithuania  has  taken  several  steps  to  establish  legal  rights  that  support 
environmental democracy. Further details can be found on EDI’s website.

Source: www.environmentaldemocracyindex.org/country/ltu.

ECtHR judgments have referred to international environmental standards and 
the rights in the Aarhus Convention.622 The Court has also confirmed the im-
portance of the right to access information from the government when serious 
health effects are possible.623 Indeed, where a government engages in hazard-
ous activities that might have hidden adverse consequences on the health of 
those involved, Article 8 requires that an effective and accessible procedure 
be established to enable those concerned to seek all relevant and appropriate 
information.624 The ECtHR has also permitted an association to access justice 
when complaining about a concrete and direct threat to its personal posse-
ssions and the way of life of its members.625

621  ECtHR, Ilhan v. Turkey [GC], No. 22277/93, 27 June 2000, paras. 52–53.

622  ECtHR, Tătar v. Romania, No. 67021/01, 27 January 2009, paras. 93, 101, 113–116 and 118.

623  ECtHR, McGinley and Egan v. the United Kingdom, Nos. 21825/93 and 23414/94, 9 June 1998, 

para. 101.

624  ECtHR, Giacomelli v. Italy, No. 59909/00, 2 November 2006.

625  ECtHR, Gorraiz Lizarraga and Others v. Spain, No. 62543/00, 27 April 2004.

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The right to the protection of health is also found in Article 11 of the Council of 
Europe’s European Social Charter and of the Revised Social Charter.626 Under 
an Additional Protocol to this charter, which came into force in 1998, national 
trade unions and employers’ organisations, as well as certain European trade 
unions, employers’ organisations and international NGOs, are entitled to lodge 
complaints about violations with the European Committee of Social Rights 
against State Parties to the Protocol. In addition, national NGOs may lodge 
complaints if the state concerned makes a declaration to this effect.

Under EU law, Article 37 of the EU Charter of Fundamental Rights asserts that 
a high level of environmental protection and improving the quality of the envi-
ronment must be integrated into the policies of the Union.627 Further, as noted 
throughout this handbook, Article 47 of the EU Charter of Fundamental Rights 
provides access to justice rights for all rights arising from EU law.

Additionally, EU secondary legislation contains access to justice rights. Some 
provisions of the Aarhus Convention can be found in Directive 2003/4/EC (ac-
cess to information pillar), Directive 2003/35/EC (public participation pillar 
and access to justice pillar) and Regulation (EC) No 1367/2006 (which applies 
the Aarhus Convention to EU institutions and bodies).628 The access to jus-
tice rules are now incorporated into Article 10 of the Environmental Impact 

626  Council of Europe, European Social Charter, CETS No. 35, 1961, and Council of Europe, Revised 

Social Charter, CETS No. 163, 1996.

627  See also TEU, Art. 3 (3) and TFEU, Articles 11 and 191.

628  Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on 

public access to environmental information and repealing Council Directive 90/313/EEC,  
OJ 2003 L 41; Directive 2003/35/EC of the European Parliament and of the Council of 
26 May 2003 providing for public participation in respect of the drawing up of certain plans 
and programmes relating to the environment and amending with regard to public participation 
and access to justice Council Directives 85/337/EEC and 96/61/E, OJ 2003 L 156; Regulation 
(EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on 
the application of the provisions of the Aarhus Convention on Access to Information, Public 
Participation in Decision-making and Access to Justice in Environmental Matters to Community 
institutions and bodies, OJ 2006 L 264. See also, CJEU, C-240/09, Lesoochranárske zoskupenie 
VLK v. Ministerstvo životného prostredia Slovenskej republiky, 8 March 2011.

175

Directive (EIA), 629 which applies to a wide range of defined public and private 
projects, and Article 25 of the Industrial Emissions Directive.630

Article 11 of the EIA requires Member States to provide access to a review 
procedure for the “public concerned” to challenge “the substantive or procedural 
lega lity” of decisions that are subject to participation requirements by the EIA. 
Under Article 1 (2) of the EIA, “public concerned” means “the public affected or 
likely to be affected by, or having an interest in, the environmental decision-
making procedures”. This includes NGOs. That the Aarhus Convention and the 
corresponding EU directives require national courts to recognise claims brought by 
NGOs reflects the collective importance of the right.631 National rules that restrict 
the standing of NGOs may run counter to the objectives of the EIA Directive.632

E x a m p l e :   I n   B u n d   f ü r   U m w e l t   u n d   N a t u r s c h u t z   D e u t s c h l a n d , 
Landesverband Nordrhein-Westfalen eV v. Bezirksregierung Arnsberg 
(Trianel case),633 Trianel was granted a permit to build and operate a coal-
fired power plant in Lünen, Germany. The proposed plant was to be near 
five special conservation areas under the Habitats Directive. An NGO 
sought to have the permit annulled, arguing that it infringed provisions 
of German law transposing this directive. The German court found that, 
under German law, an NGO could not bring an infringement action. Its own 
rights must be infringed in order to appeal to a court. The court referred to 
the CJEU the question of whether this undermined EIA Directive provisions 
relating to access to justice.

629  Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 

on the assessment of the effects of certain public and private projects on the environment, 
OJ 2012 L 26, amended by Directive 2014/52/EU of the European Parliament and of the Council 
of 16 April 2014 amending Directive 2011/92/EU on the assessment of the effects of certain 
public and private projects on the environment, OJ 2014 L 124.

630  Directive 2010/75/EU of the European Parliament and of the Council of 24 November 2010 on 

industrial emissions (integrated pollution prevention and control), OJ 2010 L 334.

631  CJEU, Joined cases C-128/09, C-129/09, C-130/09, C-131/09, C-134/09 and C-135/09, Antoine Boxus 
and Willy Roua, Guido Durlet and Others, Paul Fastrez and Henriette Fastrez, Philippe Daras, 
Association des riverains et habitants des communes proches de l’aéroport BSCA (Brussels 
South Charleroi Airport) (ARACh), Bernard Page and Léon L’Hoir and Nadine Dartois v Région 
wallonne, 18 October 2011, paras. 44–46, 51. On standing generally, see European Parliament, 
Directorate General for Internal Policies (2012), Standing up for your right(s) in Europe: A Com-
parative study on Legal Standing (Locus Standi) before the EU and Member States’ Courts.

632  CJEU, C-263/08, Djurgården-Lilla Värtans Miljöskyddsförening v. Stockholms kommun genom 

dess marknämnd, 15 October 2009.

633  CJEU, C-115/09, Bund für Umwelt und Naturschutz Deutschland, Landesverband Nordrhein-

Westfalen eV v. Bezirksregierung Arnsberg, 12 May 2011.

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The CJEU concluded that, because the legislation derived from EU law, which set 
out clear obligations in this area, the Member State could not require the stand-
ing of environmental organisations to depend on the individual rights concept.

The cost of taking legal action is a common obstacle to accessing justice. Both 
EU law and the Aarhus Convention oblige Member States and contracting parties 
to ensure that environmental legal proceedings are “not prohibitively expen-
sive”.634 Domestic courts cannot look exclusively at the financial means of indi-
vidual claimants; they must take a number of other factors into account, includ-
ing whether the claimant has reasonable prospects of success, the importance 
of what is at stake for the claimant and for the protection of the environment, 
the complexity of the relevant law and whether public funding or other costs 
protection schemes are available.635 Relying on courts to exercise their judicial 
discretion to decline to order an unsuccessful party to pay the costs creates legal 
uncertainty and does not effectively transpose EU legal requirements.636

8.5.  E-justice

Key points

•  Technology can increase the efficiency and transparency of the judicial process and facili-
tate access to justice for individuals. However, it also risks undermining access to justice for 
some (for example, those without internet) if it entirely replaces traditional procedures.

•  The CJEU has stated that “electronic means” cannot be the only means offered for access-
ing  procedures  because  this  may  make  it  impossible  for  some  people  to  exercise  their 
rights.

Technology can increase the efficiency and transparency of the judicial pro-
cess and facilitate access to justice for individuals. The term ‘e-justice’ cov-
ers a broad range of initiatives, including the use of email, the filing of online 

634  UN, UNECE (1998), Convention on Access to Information, Public Participation in Decision-Making and 
Access to Justice in Environmental Matters, 25 June 1998, Art. 9 (4) (access to justice provisions).

635  CJEU, C-260/11, The Queen, on the application of David Edwards and Lilian Pallikaropoulos v. 

Environment Agency and Others, 11 April 2013, para. 46.

636  CJEU, C-427/07, Commission of the European Communities v. Ireland, 16 July 2009, para. 94. See 
also CJEU, C-530/11, European Commission v. the United Kingdom of Great Britain and Northern 
Ireland, 13 February 2014, paras. 54–58.

177

claims, the provision of online information (including case law), the use of vid-
eo-hearings and conferencing, the online tracking of registration and case pro-
gress, and the capacity of judges or other decision-makers to access informa-
tion electronically. This section outlines the requirements for e-justice and then 
provides specific examples of such initiatives operating under EU law.

Under CoE law, the ECHR establishes no specific requirements in relation to 
e-justice, but implementing e-justice initiatives is subject to the rules on access 
to a court and the right to a fair trial under Article 6 of the ECHR.

Example: In Lawyer Partners a.s. v. Slovakia,637 the applicant, a private limited 
company, wished to lodge over 70,000 civil actions for debt recovery. Given 
the huge number of claims, it recorded them on a DVD and sent them to the 
court with an explanatory letter. Though domestic law allowed filing the 
claims in this manner, the court refused to register them on the ground that it 
lacked the necessary equipment. A complaint to the Constitutional Court was 
rejected as having been lodged outside the statutory two-month time limit.

The ECtHR noted that, if printed, the company’s actions and supporting 
documents would have filled over 40 million pages. In such circumstances, 
its choice as to the means of filing could not be considered inappropriate. 
Domestic law provided for the electronic filing of court actions and the 
applicant company could not be criticised for having availed itself of this 
possibility. The courts’ refusal to register its actions was a disproportionate 
limitation on its right of access to the court.

The EU’s “electronic one-stop shop in the area of justice”, the European e-Justice 
Portal, currently allows individuals to make cross-border small claims or payment 
orders electronically, in accordance with relevant EU secondary law, in EU Mem-
ber States participating in e-CODEX (a large-scale project designed to improve 
access by individuals and businesses to legal means across borders – specifically 
online handling of cross-border legal procedures). Regulation No. 1896/2006 es-
tablished a procedure for a European Payment Order (EPO).638 This procedure sim-

637  ECtHR, Lawyer Partners a.s. v. Slovakia, Nos. 54252/07, 3274/08, 3377/08, 3505/08, 3526/08, 

3741/08, 3786/08, 3807/08, 3824/08, 15055/08, 29548/08, 29551/08, 29552/08, 29555/08 
and 29557/08, 16 June 2009.

638  Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 Decem-

ber 2006 creating a European order for payment procedure, OJ 2006 L 399.

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plifies cross-border cases concerning uncontested pecuniary claims in civil and 
commercial matters. The European Payment Order is recognised and enforced in 
all EU Member States, except Denmark, without the need for a declaration of en-
forceability. It allows creditors to file claims without appearing before court, using 
standardised forms that can be filed and sent to the competent court.

In accordance with Regulation (EC) No 861/2007, claims can also be made via 
the European e-Justice Portal under the European Small Claims Procedure. This 
seeks to improve and simplify procedures in civil and commercial matters 
involving claims that do not exceed €2000.639 The Small Claims Procedure 
applies  between  all  EU  Member  States  except  Denmark.  It  is  a  written 
procedure – unless an oral hearing is considered necessary by the court.640 It 
establishes time limits for the parties and for the court to speed up litigation, 
and applies to pecuniary as well as non-pecuniary claims. A judicial decision 
obtained  as  a  result  of  this  procedure  must  generally  automatically  be 
recognised and enforced in another Member State.

The development of video conferencing and hearings can also help facilitate 
justice. For example, the European Supervision Order permits EU Member 
States to issue Supervision Orders releasing suspects or accused persons pend-
ing trial to be supervised in their states of residence.641 Article 19 (4) provides 
that telephone and video conferencing may be used if national law requires 
the issuing Member State to hear the defendant before varying the supervi-
sion measures or issuing an arrest warrant. The use of video conferencing for 
hearings is promoted by other EU instruments.642

639  Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 

establishing a European Small Claims Procedure, OJ 2007 L 199.

640  Regulation (EC) No 861/2007, Art. 5 (1).

641  This will be further addressed in a forthcoming FRA report on how EU law is implemented in 

practice concerning the transfer of persons awaiting trial.

642  Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between 
Member States of the European Union, of the principle of mutual recognition to decisions on 
supervision measures as an alternative to provisional detention, OJ 2009 L 294. See also Direc-
tive 2012/29/EU, Art. 17; Council Act of 29 May 2000 establishing the Convention on Mutual 
Assistance in Criminal Matters between the Member States of the European Union, OJ 2000 
C 197, Art. 10; Council Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation between 
the courts of the Member States in the taking of evidence in civil or commercial matters, 
OJ 2001 L 174, Articles 10 (4) and 17 (4) (seeking to improve, simplify and accelerate cooper-
ation between courts in taking of evidence); Council Directive 2004/80/EC of 29 April 2004 
relating to compensation to crime victims, OJ 2004 L 261, Art. 9 (1); and Regulation (EC) No 
861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European 
small claims procedure, Articles 8 and 9 (1). 

179

Promising practice

Visualising sentencing: online tool to facilitate access to justice

The United Kingdom’s Ministry of Justice was recognised at the International 
Visual  Communications  Awards  for  an  interactive  guide  to  help  people 
understand sentencing – ‘you be the judge’. This tool facilitates access to justice 
by  familiarising  people  with  the  procedures  of  courts  outside  of  the  actual 
courtroom.

Source: FRA (2012), Fundamental rights: challenges and achievements in 2011 – FRA Annual 
report, p. 207.

However, not everyone may be able to access technological developments, so 
it is important that these exist alongside traditional systems. The CJEU has con-
firmed that procedures accessible solely by “electronic means” may make it 
impossible for some people to exercise their rights.643

Example: In Rosalba Alassini v. Telecom Italia SpA,644 the CJEU considered four 
joined preliminary references from the Giudice di Pace di Ischia concerning 
clauses under which an attempt to settle out-of-court was a mandatory 
condition for certain disputes to be admissible before national courts. The 
clauses were enacted pursuant to the Universal Service Directive.645 The CJEU 
considered whether these mandatory referrals complied with the principle of 
effective judicial protection.

The decision relating to mandatory referrals is detailed in Section 2.4.2. In con-
sidering this point, the CJEU also noted that exercising the rights conferred by 
the Universal Service Directive might in practice be impossible or excessively 
difficult for certain individuals – in particular, those without access to the inter-
net – if the settlement procedure could only be accessed by electronic means.

643  CJEU, Joined cases, C-317/08, C-318/08, C-319/08 and C-320/08, Rosalba Alassini v. Telecom 

Italia SpA, Filomena Califano v. Wind SpA, Lucia Anna Giorgia Iacono v. Telecom Italia SpA and 
Multiservice Srl v. Telecom Italia SpA, 18 March 2010, para. 58.

644  CJEU, Joined cases C-317/08 to C-320/08, Rosalba Alassini v. Telecom Italia SpA, Filomena Califano 
v. Wind SpA, Lucia Anna Giorgia Iacono v. Telecom Italia SpA and Multiservice Srl v. Telecom 
Italia SpA, 18 March 2010, para. 67.

645  Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on uni-

versal service and users’ rights relating to electronic communications networks and services, 
OJ 2002 L 108.

180

Handbook on European law relating to access to justiceFurther reading

Chapter 1

Anagnoustou, D. (2013), ECHR; Implementing Strasbourg’s judgment on domes-
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Brillat, R. (2009), ‘The European Social Charter’ in Alfredsson, G. et al. (eds.), 
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Bratza, N. (2013), ‘The European Convention on Human Rights and the Charter 
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in Rosas, A. et al (eds.), Court of Justice and construction of Europe: analyses 
and perspectives on sixty years of case-law, The Hague, T.M.C. Asser Press.

Carrera, S., De Somer, M. and Petkova, B. (2012), ‘The Court of Justice of the Eu-
ropean Union as a Fundamental Rights Tribunal – Challenges for the Effective 
Delivery of Fundamental Rights in the Area of Freedom, Security and Justice’, 
Liberty and Security in Europe Papers, Centre for European Policy Studies, No. 49.

CJEU, Reflets.

Coutron, L. and Picheral, C. (eds.) (2012), Charte des droits fondamentaux de 
l’Union européenne et Convention européenne des droits de l’homme, Brus-
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Craig, P. (2010), The Lisbon Treaty. Law, Politics, and Treaty Reform, Oxford, Ox-
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181

Francioni, F. (2007), Access to Justice as a Human Right, New York, Oxford Uni-
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Klamert, M. (2014), The Principle of Loyalty in EU Law, Oxford, Oxford Univer-
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Lavranos, N. (2013), ‘The ECJ’s Judgments in Melloni and Åkerberg Fransson: 
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Meyer, J. (ed.) (2014), Charta der Grundrechte der Europäischen Union, 4th Edi-
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Pech, L. (2010), ‘A Union founded on the Rule of Law: Meaning and Reality of 
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Stricker, A. (2010), Die Bedeutung der Europäischen Menschenrechtskonven-
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schutz der Europäischen Union, Frankfurt am Main, Peter Lang.

Timmermans, C. (2013), ‘Fundamental rights protection in Europe before and 
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United Nations Development Programme (2005), ‘Programming for Justice:  
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Chapter 2

Adams, S. and Parras, F.J. (2013), ‘The European Stability Mechanism through 
the legal meanderings of Union’s constitutionalism: Comment on Pringle’, Euro-
pean Law Review, Vol. 8, No. 6, pp. 848–865.

Benöhr, I. (2014), ‘Collective Redress in the Field of European Consumer Law’, 
Legal Issues of Economic Integration, Vol. 14, No. 3, pp. 243–256.

De Palo, G. and Trevor, M. (2012), EU Mediation Law and Practice, Oxford, Ox-
ford University Press.

182

Handbook on European law relating to access to justiceFurther reading

Doobay, A. (2013), ‘The right to a fair trial in light of the recent ECtHR and 
CJEU case-law’, ERA Forum, Vol. 14, No. 2, pp. 251–262.

Flattery, J. (2010), ‘Balancing efficiency and justice in EU competition law:  
elements of procedural fairness and their impact on the right to a fair hearing’, 
Competition Law Review, Vol. 7, No. 1, p. 53–58.

FRA, Charterpedia.

FRA (2012), Bringing rights to life: The fundamental rights landscape of the Eu-
ropean Union, Luxembourg, Publications Office.

Galetta, D. (2010), Procedural Autonomy of EU Member States: Paradise Lost?, 
Heidelberg, Springer.

Gilliaux, P. (2012), Droit(s) européen(s) à un procès equitable, Brussels, 
Bruylant.

Hodges, S. (2014), ‘Consumer ombudsmen: better regulation and dispute reso-
lution’, ERA Forum, Vol. 15, No. 4, pp. 593–608.

Luzak, J. (2014), ‘Online consumer contracts’, ERA Forum, Vol. 15, No. 3, 
pp. 381–392.

Müller, L. F. (2015), Richterliche Unabhängigkeit und Unparteilichkeit nach Art. 
6 EMRK.: Anforderungen der Europäischen Menschenrechtskonvention und 
spezifische Probleme in den östlichen Europaratsstaaten, Berlin, Duncker & 
Humblot.

Peers, S., Ward, A. et al (eds.) (2013), Commentary on Charter of Fundamental 
Rights, Oxford, Hart Publishing.

Polakiewicz, J. (2009–2010), ‘European Union action on procedural rights and 
the European Convention on Human Rights’, Human Rights Law Journal, Vol. 30, 
No. 1–2, pp. 12–16.

Stürner, M., Inchausti Gascón, F., Caponi, R. (eds.) (2014), The Role of Consu-
mer ADR in the Administration of Justice. New Trends in Access to Justice under 
EU Directive 2013/11, Munich, Sellier.

183

Vitkauskas, D. and Dikov, G. (2012), Protecting the right to a fair trial under the 
European Convention on Human Rights, Strasbourg, Council of Europe.

Wrbka, S. (2014), European Consumer Access to Justice Revisited, Cambridge, 
Cambridge University Press.

Chapters 3 and 4

Cape, E., Namoradze, N., Smith, R. and Spronken, T. (2010), Effective Criminal 
Defence in Europe, Cambridge, Intersentia.

Mole, N. and Harby, C., Council of Europe (2007), ‘Le droit à un procès equita-
ble: Un guide sur la mise en œuvre de l’Article 6 de la Convention européenne 
des Droits de l’Homme’, Précis sur les droits de l’homme, No. 3.

Council of Europe (2013), Guide to a fair trial: civil limb, Strasbourg, Council of 
Europe.

Council of Europe (2014), Guide to a fair trial: criminal limb, Strasbourg, Council 
of Europe.

Engström, J. (2011), ‘The Principle of Effective Judicial Protection after the Lis-
bon Treaty: Reflection in the light of case C-279/09 DEB’, Review of European 
Administrative Law, Vol. 4, No. 2, pp. 53–68.

FRA (2015), Child-friendly justice – Perspectives and experiences of profe-
ssionals on children’s participation in civil and criminal judicial proceedings in 10 
EU Member States, Luxembourg, Publications Office.

Grabenwarter, C. and Pabel, K. (2012), Europäische Menschenrechtskonvention, 
5th Edition, Munich, C. H. Beck.

Harris, D., O’Boyle, M., Warbrick, C. and Bates, E. (2014), Law of the European 
Convention on Human Rights, Oxford, Oxford University Press.

Kiraly, L. and Squires, N. (2011), ‘Legal aid in the EU: from the Brussels Conven-
tion of 1968 to the Legal Aid Directive of 2003’, Coventry Law Journal, Vol. 16, 
No. 2, pp. 28–47.

184

Handbook on European law relating to access to justiceFurther reading

Oliver, P. (2011), ‘Case C-279/09 DEB v. Germany’, Common Market Law Review, 
Vol. 48, pp. 2023–2040.

Rainey, B., Wicks, E. and Ovey, C. (2014), The European Convention on Human 
Rights, Oxford, Oxford University Publishing.

Sayers, D. (2014), ‘Protecting Fair Trial Rights in Criminal Cases in the European 
Union: Where does the Roadmap take Us?’, Human Rights Law Review, Vol. 14, 
No. 4, pp. 733–760.

Trechsel, S. (2005), Human Rights in Criminal Proceedings, Oxford, Oxford Uni-
versity Press.

Chapter 5

Biondi, A. and Farley, P. (2009), The Right to Damages in European Law, Alphen 
on the Rhine, Kluwer Law International.

Buyse, A. (2009), ‘Lost and Regained? Restitution as a remedy for human 
rights’, Heidelberg Journal of International Law, Vol. 68, pp. 129–153.

Council of Europe (2013), Guide to good practice in respect of domestic reme-
dies, Strasbourg, Council of Europe.

De Hert, P. and Korenica, F. (2012),‘The doctrine of equivalent protection: its 
life and legitimacy before and after the European Union’s accession to the 
European Convention on Human Rights’, German Law Journal, Vol. 13, No. 7, 
pp. 874–895.

Gutman, K. (2011), ‘The evolution of the action for damages against the Euro-
pean Union and its place in the system of judicial protection’, Common Market 
Law Review, Vol. 48, No. 3, pp. 695–750.

Karpenstein, U. and Mayer, C. F. (2012), Konvention zum Schutz der Menschen-
rechte und Grundfreiheiten: Kommentar, München, C.H. Beck.

Keller, H. and Marti, C. (2013), ‘Interim Relief Compared: Use of Interim 
Measures by the UN Human Rights Committee and the European Court of 
Human Rights’, Heidelberg Journal of International Law, Vol. 73, pp. 325–372.

185

Kuijer, M. (2014), Effective remedies as a fundamental right, Barcelona, Escuela 
Judicial Española & European Judicial Training Network.

Lenaerts, K., Maselis, I. and Gutman, K. (2014), EU procedural law, Oxford, Ox-
ford University Press.

Le Sueur, A. (2012), ‘Designing Redress: Who Does it, How and Why?’, Asia Pa-
cific Law Review, Vol. 20, No. 1, pp. 17–44.

Mak, C. (2012), ‘Rights and Remedies – Article 47 EUCFR and Effective Judicial 
Protection in European Private Law Matters’, Amsterdam Law school Research 
Paper, No. 2012–88.

Marguénaud, J.-P. (2012), La cour européenne des droits de l’homme, 6th edi-
tion, Paris, Dalloz.

McBride, J. (2009), Access to justice for migrants and asylum-seekers in Europe, 
European Committee on Legal Cooperation, Strasbourg, Council of Europe.

Peers, S. (2012), ‘Sanctions for infringement of EU law after the Treaty of Lis-
bonʼ, European Public Law, Vol. 18, p. 33.

Peers, S. (2014), ‘Reconciling the Dublin system with European fundamental 
rights and the Charter’, ERA Forum, Vol. 15, No. 4, pp. 485–494.

Schlote, M. (2014), ‘The San Giorgio “cause of action”’, British Tax Review, 
No. 2, pp. 103–113.

Van Gerven, W. (2000), ‘Of Rights, Remedies and Procedures’, Common Market 
Law Review, Vol. 37, Issue 3, pp. 501–36.

Wakefield, J. (2010), ‘Retrench and Reform: The Action for Damagesʼ, in Eeck-
hout, P. and Tridimas, T. (eds), Yearbook of European Law, Vol. 28.

Ward, A. (2011), ‘National and EC Remedies under the EU Treaty; Limits and the 
Role of the ECHR’, in Barnard, C. and Odudu, O. (eds.), The Outer Limits of the 
Treaty, Oxford, Hart Publishing.

186

Handbook on European law relating to access to justiceFurther reading

Ward, A. (2012), ‘Damages under the EU Charter of Fundamental Rights’, 
ERA Forum, Vol. 12, No. 4, pp. 589–611.

Chapter 6

Balthasarv, S. (2010), ‘Locus Standi Rules for Challenge to Regulatory Acts 
by Private Applicants: the new Article 263(4)’, European Law Review, Vol. 35, 
No. 4, pp. 542–550.

Carboni, N. (2014), ‘From Quality to Access to Justice: Improving the Function-
ing of European Judicial Systems’, Civil and Legal Sciences, Vol. 3, No. 4.

FRA (2011), Access to justice in Europe: an overview of challenges and opportu-
nities, Luxembourg, Publications Office.

Kloth, M. (2010), Immunities and the right of access to the court under Arti-
cle 6 of the European Convention on Human Rights, Leiden, Martinus Nijhoff 
Publishers.

Nascimbene, B. (2009), ‘European judicial cooperation in criminal matters: 
what protection for individuals under the Lisbon Treaty?’, ERA Forum, Vol. 10, 
No. 3, pp. 397–407.

Reich, N. (2013), General Principles of EU Civil Law, Antwerp, Intersentia.

Chapter 7

Edel, F. (2007), The length of civil and criminal proceedings in the case law of 
the European Court of Human Rights, Strasbourg, Council of Europe.

European Commission for the Efficiency of Justice (CEPEJ) (2012), Length of 
court proceedings in the member states of the Council of Europe based on the 
case law of the European Court of Human Rights, Strasbourg, Council of Europe.

Greer, S. (2006), The European Convention on Human Rights: Achievements, 
Problems and Prospects, Cambridge, Cambridge University Press.

187

Henzelin, M. and Rordorf, H. (2014), ‘When Does the Length of Criminal Pro-
ceedings Become Unreasonable According to the European Court of Human 
Rights?’, New Journal of European Criminal Law, Vol. 5, No. 1, pp. 78–109.

Mahoney, P. (2004), ‘The right to a fair trial in criminal matters under Article 6 
ECHR’, Judicial Studies Institute Journal, Vol. 4, No. 2, pp. 107–129.

Meyer-Ladewig, J. (2011), EMRK Europäische Menschenrechtskonvention – 
Handkommentar, 3rd Edition, Baden-Baden, Nomos.

Nicolas, M. (2012), Le droit au délai raisonnable devant les juridictions pénales 
internationales, Frankfurt am Main, Peter Lang.Van Dijk, P., Van Hoof, G.J.H. 

Van Rijn, A. and Zwaak, L. (eds.) (2006), Theory and Practice of the European 
Convention on Human rights, Antwerp, Intersentia.

Chapter 8

Bartlett, P. et al (eds.) (2006), Mental Disability and the European Convention 
on Human Rights, Leiden, Martinus Nijhoff.

Cojocariu, C. (2011), ‘Handicapping rules: The overly restrictive application of 
admissibility criteria by the European Court of Human Rights to complaints con-
cerning disabled people’, European Human Rights Law Review, No. 6, p. 686.

Contini, F. and. Lanzara, G. (2014), The Circulation of Agency in e-Justice, Dor-
drecht, Springer.

Council of Europe (2012), Manual on Human Rights and the Environment, Stras-
bourg, Council of Europe.

Easton, S. (2011), Prisoners’ rights: principles and practice, Abingdon, Taylor & 
Francis.

FRA (2012), Access to justice in cases of discrimination in the EU: Steps to fur-
ther equality, Luxembourg, Publications Office.

FRA (2012), Involuntary placement and involuntary treatment of persons with 
mental health problems, Luxembourg, Publications Office.

188

Handbook on European law relating to access to justiceFurther reading

FRA (2013), Legal capacity of persons with intellectual disabilities and persons 
with mental health problems, Luxembourg, Publications Office.

FRA (2015), Victims of crime in the EU: the extent and nature of support for 
victims, Luxembourg, Publications Office.

FRA-ECtHR (2014), Handbook on European law relating to asylum, borders and 
immigration, Luxembourg, Publications Office.

FRA-ECtHR (2015), Handbook on European law relating to the rights of the 
child, Luxembourg, Publications Office.

Gavrielidis, T. (ed). (2014), A victim-led criminal justice system: addressing the 
paradox, London, IARS Publications.

Gramatikov, M. and Klaming, L. (2011), ‘Getting divorced online: Procedural and 
outcome justice in online divorce mediation’, Journal of Law and Family Studies, 
Vol. 13, No. 2, pp. 1–30.

Harding, A. (2007), Access to environmental justice: a comparative study, Lon-
don, Brill.

Lindsay, W.R., Taylor, J.L. and Sturmey, P. (2004), Offenders with Developmental 
Disabilities, Chichester, Wiley.

Londono, P. (2007), ‘Positive obligations, criminal procedure and rape cases’, 
European Human Rights Law Review, No. 2, pp. 158–171.

Lupo, G. and Bailey, J. (2014), ‘Designing and Implementing e-Justice Systems: 
Some Lessons Learned from EU and Canadian Examples’, Laws, Vol. 3, No. 2, 
pp. 353–387.

Ng, G. (2013), ‘Experimenting with European Payment Order and of European 
Small Claims Procedure’, in Contini, F. and Lanzara, G. (eds.), Building Interoper-
ability for European Civil Proceedings online, CLUEB Bologna.

Ochoa, J.C., (2013), The Rights of Victims in Criminal Justice Proceedings for Se-
rious Human Rights Violations, Leiden, Martinus Nijhoff.

189

Pallemaerts, M. (2009), The Aarhus Convention at ten. Interactions and Tensions 
between Conventional International Law and EU Environmental Law, Groningen, 
Europa Law Publishing.

Perlin, M. (2011), International human rights and mental disability law: when 
the silenced are heard, New York, Oxford University Press.

Smith, R. (2014), Digital delivery of legal services to people on low incomes, 
London, The Legal Education Foundation.

Starmer, K. (2014), ‘Human rights, victims and the prosecution of crime in the 
21st century’, Criminal Law Review, No. 11, pp. 777–787.

Taylor, J.L. and Lindsay, W.R. (2010), ‘Understanding and treating offenders 
with learning disabilities: a review of recent developments’, Journal of Learning 
Disabilities and Offending Behaviour, Vol. 1, No. 1, p. 6.

The Harris Review (2015), ‘Changing prisons, saving lives: report of the inde-
pendent review into self-inflicted deaths in custody of 18-24 year oldsʼ, Com-
mand Paper 9087. 

Van Zyl Smit, D. and Snacken, S. (2011), Principles of European Prison Law 
and Policy: Penology and Human Rights Paperback, Oxford, Oxford University 
Press.

Velicogna, M. Errera, A. and Derlange, S. (2013), ‘Building e-Justice in Continen-
tal Europe: The TéléRecours Experience in France’, Utrecht Law Review, Vol. 9, 
No. 1, pp. 38–59.

Young, L. (2014), The Young Review: Improving outcomes for young black and/
or Muslim men in the Criminal Justice System, London, Barrow Cadbury Trust.

190

Handbook on European law relating to access to justiceCase law

Selected case law of the European Court of Human Rights and the Court of Jus-
tice of the European Union

Right of access to a court

ECtHR
Golder v. the United Kingdom, No. 4451/70, 21 February 1975

Julius Kloiber Schlachthof GmbH and Others v. Austria, Nos. 21565/07, 21572/07, 
21575/07 and 21580/07, 4 April 2013

CJEU
Antoine Boxus, Willy Roua, Guido Durlet and Others, Paul Fastrez, Henriette 
Fastrez, Philippe Daras, Association des riverains et habitants des communes 
proches de l’aéroport BSCA (Brussels South Charleroi Airport) (ARACh), Bernard 
Page, Léon L’Hoir, Nadine Dartois v. Région wallonne, Joined Cases C-128/09 to 
C-131/09, C-134/09 and C-135/09, 18 October 2011

Epitropos tou Elegktikou Synedriou sto Ypourgeio Politismou kai Tourismou 
v. Ypourgeio Politismou kai Tourismou - Ypiresia Dimosionomikou Elenchou, 
C-363/11, 16 February 2013

Valeri Hariev Belov v. CHEZ Elektro Balgaria AD and others (Bulgaria and the 
European Commission intervening), C-394/11, 31 January 2013

191

Independence and impartiality of tribunals

ECtHR
Ibrahim Gürkan v. Turkey, No. 10987/10, 3 July 2012

Maktouf and Damjanović  v. Bosnia and  Herzegovina, Nos. 2312/08 and 
34179/08, 18 July 2013

CJEU
Chronopost SA and La Poste v. Union française de l’express (UFEX) and Others, 
Joined cases C-341/06 P and C-342/06 P, 1 July 2008

Graham J. Wilson v. Ordre des avocats du barreau de Luxembourg, C-506/04, 
19 September 2006

Fair and public hearing

ECtHR
Khrabrova v. Russia, No. 18498/04, 2 October 2012

Užukauskas v. Lithuania, No. 16965/04, 6 July 2010

Non-judicial bodies and alternative dispute resolution

ECtHR
Suda v. the Czech Republic, No. 1643/06, 28 October 2010

CJEU
Rosalba Alassini v. Telecom Italia SpA, Filomena Califano v. Wind SpA, Lucia 
Anna Giorgia Iacono v. Telecom Italia SpA and Multiservice Srl v. Telecom Italia 
SpA, Joined cases C-317/08 to C-320/08, 18 March 2010

Legal aid in non-criminal proceedings

ECtHR
Airey v. Ireland, No. 6289/73, 09 October 1979

McVicar v. the United Kingdom, No. 46311/99, 7 May 2002

192

Handbook on European law relating to access to justiceCase law

CJEU
DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v. Bundes-
republik Deutschland, C-279/09 22 December 2010

Legal aid in criminal proceedings

ECtHR
Tsonyo Tsonev v. Bulgaria (No. 2), No. 2376/03, 14 January 2010

Twalib v. Greece, No. 24294/94, 9 June 1998

Zdravko Stanev v. Bulgaria, No. 32238/04, 6 November 2012

Right to be advised, defended and represented in non-criminal 
proceedings

ECtHR
Anghel v. Italy, No. 5968/09, 25 June 2013

Bertuzzi v. France, No. 36378/97, 13 February 2003

Right to be advised, defended and represented in criminal 
proceedings

ECtHR
Aras v. Turkey (No. 2), No. 15065/07, 18 November 2014

Lagerblom v. Sweden, No. 26891/95, 14 January 2003

Lanz v. Austria, No. 24430/94, 31 January 2002

Pishchalnikov v. Russia, No. 7025/04, 24 September 2009

Salduz v. Turkey [GC], No. 36391/02, 27 November 2008

CJEU
Ordre des barreaux francophones et germanophone and others v. Conseil des 
ministres, C-305/05, 26 June 2007

193

Right to self-representation

ECtHR
Galstyan v. Armenia, No. 26986/03, 15 November 2007

Requirements of an effective remedy

ECtHR
McFarlane v. Ireland [GC], No. 31333/06, 10 September 2010

Ramirez Sanchez v. France [GC], No. 59450/00, 4 July 2006

Rotaru v. Romania [GC], No. 28341/95, 4 May 2000

Yarashonen v. Turkey, No. 72710/11, 24 June 2014

CJEU
Brahim Samba Diouf v. Ministre du Travail, de l’Emploi et de l’Immigration, 
C-69/10, 28 July 2011

Inuit Tapiriit Kanatami and others v. European Parliament and Council of the 
European Union, C-583/11 P, 3 October 2013

Sofiane Fahas v. Council of the European Union, T-49/07, 7 December 2010

Examples of specific remedies

ECtHR
Ananyev and Others v. Russia, Nos. 42525/07 and 60800/08, 10 January 2012 
(compensation)

Brosa v. Germany, No. 5709/09, 17 April 2014 (injunction)

Burdov v. Russia (No. 2), No. 33509/04, 15 January 2009 (compensation)

CJEU
Andrea Francovich and Danila Bonifaci and others v. Italian Republic, Joined 
cases C-6/90 and C-9/90, 19 November 1991 (compensation)

Gebr. Weber GmbH v. Jürgen Wittmer and Ingrid Putz v. Medianess Electronics 
GmbH, Joined cases, C-65/09 and C-87/09, 16 June 2011 (specific performance)

UPC Telekabel Wien GmbH v. Constantin Film Verleih GmbH and Wega Filmpro-
duktionsgesellschaft mbH, C-314/12, 27 March 2014 (injunction)

194

Handbook on European law relating to access to justiceCase law

Limitations on access to justice

ECtHR
Bogdel v. Lithuania, No. 41248/06, 26 November 2013 (limitation periods)

C.G.I.L. and Cofferati (No. 2) v. Italy, No. 2/08, 6 April 2010 (immunities)

Harrison Mckee v. Hungary, No. 22840/07, 3 June 2014 (legitimate aim and 
proportionality)

Klouvi v. France, No. 30754/03, 30 June 2011 (evidence barriers)

Maširević v. Serbia, No. 30671/08, 11 February 2014 (excessive formalism)

Poirot v. France, No. 29938/07, 15 December 2011 (excessive formalism)

Stankov v. Bulgaria, No. 68490/01, 12 July 2007 (court fees)

Yuriy Nikolayevich Ivanov v. Ukraine, No. 40450/04, 15 October 2009 (delay in 
the execution of final judgments)

CJEU
European Commission v. the United Kingdom of Great Britain and Northern Ire-
land, C-530, 13 February 2014 (court fees)

Galina Meister v. Speech Design Carrier Systems GmbH, C-415/10, 19 April 2012 
(evidence barriers)

Q-Beef NV v. Belgische Staat and Frans Bosschaert v. Belgische Staat and 
Others, Joined cases C-89/10 and C-96/10, 8 September 2011 (limitation periods)

Rosalba Alassini v. Telecom Italia SpA, Filomena Califano v. Wind SpA, Lucia 
Anna Giorgia Iacono v. Telecom Italia SpA and Multiservice Srl v. Telecom Ita-
lia SpA, Joined cases C-317/08 to C-320/08, 18 March 2010 (legitimate aim and 
proportionality)

Determination of the total length of proceedings

ECtHR
Malkov v. Estonia, No. 31407/07, 4 February 2010 (criminal)

Oršuš and Others v. Croatia [GC], No. 15766/03, 16 March 2010 (non-criminal)

195

Criteria determining reasonableness of the length of proceedings

ECtHR
Matoń v. Poland, No. 30279/07, 9 June 2009 (complexity of the case)

Mikulić v. Croatia, No. 53176/99, 7 February 2002 (what is at stake for the 
applicant)

Sociedade  de  Construções  Martins  &  Vieira,  Lda.  and  Others  v.  Portugal, 
Nos. 56637/10 and others, 30 October 2014 (conduct of the domestic authorities)

Starokadomskiy v. Russia (No. 2), No. 27455/06, 13 March 2014 (general rules)

Veliyev v. Russia, No. 24202/05, 24 June 2010 (conduct of the applicant)

CJEU
Ufficio IVA di Piacenza v. Belvedere Costruzioni Srl., C-500/10, 29 March 2012 
(general rules)

Remedies for excessive length of proceedings

ECtHR
Scordino v. Italy (No. 1) [GC], No. 36813/97, 29 March 2006

CJEU
Groupe Gascogne SA v. European Commission, C-58/12 P, 26 November 2013

Persons with disabilities

ECtHR
A.K. and L. v. Croatia, No. 37956/11, 8 January 2013

Shtukaturov v. Russia, No. 44009/05, 27 March 2008

Victims of crime

ECtHR
Dink v. Turkey, Nos. 2668/07 et al., 14 September 2010

196

Handbook on European law relating to access to justiceCase law

CJEU
Criminal proceedings against Maria Pupino, C-105/03, 16 June 2005

Prisoners and pre-trial detainees

ECtHR
Hassan and Others v. France, Nos. 46695/10 and 54588/10, 4 December 2014

Stanev v. Bulgaria [GC], No. 36760/06, 17 January 2012

Environmental law

ECtHR
Tătar v. Romania, No. 67021/01, 27 January 2009

CJEU
Bund für Umwelt und Naturschutz Deutschland, Landesverband Nord rhein-
Westfalen eV v. Bezirksregierung Arnsberg, C-115/09, 12 May 2011

E-justice

ECtHR
Lawyer Partners a.s. v. Slovakia, Nos. 54252/07 et al., 16 June 2009

CJEU
Rosalba Alassini v. Telecom Italia SpA, Filomena Califano v. Wind SpA, Lucia 
Anna Giorgia Iacono v. Telecom Italia SpA and Multiservice Srl v. Telecom Italia 
SpA, Joined cases C-317/08 to C-320/08, 18 March 2010

197

Index

Case-law of the Court of Justice of the European Union

Åklagaren v. Hans Åkerberg Fransson, C-617/10 REC, 7 may 2013 .......................... 20
Andrea Francovich and Danila Bonifaci and others v. Italian Republic,  

Joined cases C-6/90 and C-9/90, 19 November 1991 ................................ 91, 104

Antoine Boxus, Willy Roua, Guido Durlet and Others, Paul Fastrez,  
Henriette Fastrez, Philippe Daras, Association des riverains et  
habitants des communes proches de l’aéroport BSCA  
(Brussels South Charleroi Airport) (ARACh), Bernard Page,  
Léon L’Hoir, Nadine Dartois v. Région wallonne,  
Joined Cases C-128/09 to C-131/09, C-134/09 and  
C-135/09, 18 October 2011 ....................................................................... 23, 29, 176

Asociación de Consumidores Independientes de Castilla y León v.  

Anuntis Segundamano España SL, C-413/12, 5 December 2013 ...................... 25

Association de médiation sociale v. Union locale des syndicats CGT  

and Others, C-176/12, 15 January 2014 ................................................................ 20

Baustahlgewebe GmbH v. Commission of the European Communities, 

C-185/95 P, 17 December 1998 ............................................................................147

Brahim Samba Diouf v. Ministre du Travail, de l’Emploi et de  

l’Immigration, C-69/10, 28 July 2011 ............................................................ 91, 100

Brasserie du Pêcheur SA v Bundesrepublik Deutschland and The Queen 

v Secretary of State for Transport, ex parte: Factortame Ltd and  
others, Joined cases C-46/93 and C-48/93, 5 March 1996 ..................... 104, 105

Bund für Umwelt und Naturschutz Deutschland, Landesverband  
Nordrhein-Westfalen eV v. Bezirksregierung Arnsberg,  
C-115/09, 12 May 2011 ..................................................................................150, 176

199

Camera di Commercio, Industria, Artigianato e Agricoltura (CCIAA)  

di Cosenza v. Grillo Star Srl., C-443/09, 19 April 2012 .........................................33

CHEZ Razpredelenie Bulgaria AD v. Komisia za zashtita ot diskriminatsia, 

C-83/14, 16 July 2015.............................................................................................124

Chronopost SA and La Poste v. Union française de l’express (UFEX) and 

Others , Joined cases C-341/06 P and C-342/06 P, 1 July 2008 .................. 23, 39

Commission of the European Communities v. Ireland, C-427/07,  

16 July 2009 ............................................................................................................177

Courage Ltd v. Bernard Crehan and Bernard Crehan v. Courage Ltd and 

others, C-453/99, 20 September 2001 ...............................................................104

Criminal proceedings against Emil Eredics and Maria Vassne Sapi,  

C-205/09, 21 October 2010 .....................................................................................55

Criminal proceedings against Magatte Gueye and Valentin Salmerón 

Sánchez, Joined cases C-483/09 and C-1/10, 15 September 2011 ....................55
Criminal proceedings against Maria Pupino, C-105/03, 16 June 2005 ............149, 162
Cruciano Siragusa v. Regione Sicilia - Soprintendenza Beni Culturali 

e Ambientali di Palermo, C-206/13, 6 March 2014 ............................................ 20

DEB Deutsche Energiehandels- und Beratungsgesellschaft mbH v. 

Bundesrepublik Deutschland, C-279/09, 22 December 2010 .........29, 57, 58, 62
Dieter Krombach v. André Bamberski, C-7/98, 28 March 2000.................................81
Djurgården-Lilla Värtans Miljöskyddsförening v. Stockholms kommun 

genom dess marknämnd, C-263/08, 15 October 2009 ....................................176

Dorsch Consult Ingenieurgesellschaft mbH v. Bundesbaugesellschaft  

Berlin mbH, C-54/96, 17 September 1997 ...................................................32, 100

Dr. Pamela Mary Enderby v. Frenchay Health Authority and Secretary  

of State for Health, C-127/92, 27 October 1993 .................................................123

Edilizia Industriale Siderurgica Srl (Edis) v. Ministero delle Finanze,  

C-231/96, 15 September 1998 ..............................................................................125

Epitropos tou Elegktikou Synedriou sto Ypourgeio Politismou kai Tourismou 
v. Ypourgeio Politismou kai Tourismou - Ypiresia Dimosionomikou 
Elenchou, C-363/11, 19 December 2012 ........................................................ 23, 33

ET Agrokonsulting-04-Velko Stoyanov v. Izpalnitelen direktor na Darzhaven 

fond Zemedelie - Razplashtatelna agentsia, C-93/12, 27 June 2013 .............. 101

European Commission v. the United Kingdom of Great Britain  

and Northern Ireland, C-530/11, 13 February 2014 ............................111, 118, 177

Europese Gemeenschap v. Otis NV and Others, C-199/11,  

6 November 2012 ............................................................................................. 28, 41

200

Handbook on European law relating to access to justiceEvropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai 

Tilematikis AE v. European Investment Bank (EIB), T-461/08,  
20 September 2011 ................................................................................................ 96
Flaminio Costa v. E.N.E.L., C-6/64, 15 July 1964 ...........................................................18
Galina Meister v. Speech Design Carrier Systems GmbH, C-415/10,  

19 April 2012 ..................................................................................................112, 124

Gebr. Weber GmbH v. Jürgen Wittmer and Ingrid Putz v. Medianess 

Electronics GmbH, Joined cases C-65/09 and C-87/09, 16 June 2011 ....... 91, 106
Gerhard Köbler v. Republik Austria, C-224/01, 30 September 2003 .............. 104, 105
Graham J. Wilson v. Ordre des avocats du barreau de Luxembourg, 

C-506/04, 19 September 2006 .................................................................23, 36, 39
GREP GmbH v. Freistaat Bayern, C-156/12, 13 June 2012 ...........................................61
Groupe Gascogne SA v. European Commission, C-58/12 P,  

26 November 2013 ........................................................................134, 139, 141, 148

Guy Denuit and Betty Cordenier v. Transorient - Mosaïque Voyages  

et Culture SA., C-125/04, 27 January 2005 ...........................................................33

Hoechst AG v. Commission of the European Communities,  

Joined cases C-46/87 and C-227/88, 21 September 1989 ..................................77

Hristo Byankov v. Glaven sekretar na Ministerstvo na vatreshnite raboti, 

C-249/11 4 October 2012 ....................................................................................... 97
Ian William Cowan v. Trésor public, C-186/87, 2 February 1989 ..............................162
Imperial Chemical Industries Ltd v. European Commission,  

T-214/06, 5 June 2012 ...........................................................................................136

Inuit Tapiriit Kanatami and others v. European Parliament and Council  

of the European Union, C-583/11 P, 3 October 2013 ...............................19, 91, 97

Jan Sneller v. DAS Nederlandse Rechtsbijstand Verzekeringsmaatschappij 

NV, C-442/12, 7 November 2013 ...........................................................................77

Josef Köllensperger GmbH & Co. KG and Atzwanger AG v. Gemeindeverband 

Bezirkskrankenhaus Schwaz, C-103/97, 4 February 1999 ..................................37

Juan Carlos Sánchez Morcillo and María del Carmen Abril García v. Banco 

Bilbao Vizcaya Argentaria SA, C-169/14, 17 July 2014 ....................................... 97

Katarina Abrahamsson and Leif Anderson v Elisabet Fogelqvist,  

C-407/98, 6 July 2000 .............................................................................................37
Kücükdeveci v. Swedex Gmbh & Co. KG, C-555/07, 19 January 2010 ....................... 20
Lesoochranárske zoskupenie VLK v. Ministerstvo životného  

prostredia Slovenskej republiky, C-240/09, 8 March 2011 ............................... 175

Index

201

M. Helen Marshall v. Southampton and South-West Hampshire Area Health 

Authority, C-271/91, 2 August 1993 .................................................................... 106

Marguerite Johnston v. Chief Constable of the Royal Ulster Constabulary, 

C-222/84, 15 May 1986 ......................................................................................... 94

Merck Canada Inc. v Accord Healthcare Ltd and Others, C-555/13,  

13 February 2014 .....................................................................................................33

Mohamed Aziz v. Caixa d´Estalvis de Catalunya, Tarragona i Manresa 

(Catalunyacaixa), C-415/11, 14 March 2013 ................................................. 96, 161

Nils Draehmpaehl v. Urania Immobilienservice OHG, C-180/95,  

22 April 1997 ......................................................................................................... 106

Nóra Baczó and János István Vizsnyiczai v. Raiffeisen Bank Zrt,  

C-567/13, 12 February 2015 ................................................................................... 25

NV Algemene Transport- en Expeditie Onderneming van Gend &  

Loos v. Netherlands Inland Revenue Administration,  
C-26/62, 5 February 1963 .....................................................................................104

Ordre des barreaux francophones et germanophone and others  

v. Conseil des ministres, C-305/05, 26 June 2007 .........................................76, 81

Parti écologiste “Les Verts” v. European Parliament, C-294/83,  

23 April 1986 ........................................................................................................... 94

Peterbroeck, Van Campenhout & Cie SCS v. Belgian State, C-312/93,  

14 December 1995 .................................................................................................. 97
Pierre Corbiau v. Administration des contributions, C-24/92, 30 March 1993 ........ 36
Q-Beef NV v. Belgische Staat and Frans Bosschaert v. Belgische Staat and 

Others, Joined cases C-89/10 and C-96/10, 8 September 2011 ...............112, 125

Quelle AG v. Bundesverband der Verbraucherzentralen und 

Verbraucherverbände, C-404/06, 17 April 2008 ...............................................107

Rewe-Zentralfinanz eG and Rewe-Zentral AG v. Landwirtschaftskammer  

für das Saarland, C-33/76, 16 December 1976 ............................................ 96, 161

Rosalba Alassini v. Telecom Italia SpA, Filomena Califano v.  

Wind SpA, Lucia Anna Giorgia Iacono v. Telecom Italia SpA and 
Multiservice Srl v. Telecom Italia SpA, Joined cases  
C-317/08 to C-320/08, 18 March 2010 ............................24, 54, 111, 115, 150, 180

Rosalba Palmisani v. Istituto nazionale della previdenza sociale (INPS), 

C-261/95, 10 July 1997 ...........................................................................................126

Scarlet Extended SA v. Société belge des auteurs, compositeurs et éditeurs 

SCRL (SABAM), C-70/10, 24 November 2011 .....................................................107

202

Handbook on European law relating to access to justiceShirley Preston and others v. Wolverhampton Healthcare NHS Trust and 
others and Dorothy Fletcher and others v Midland Bank plc,  
C-78/98, 16 May 2000 ......................................................................................... 106

Sofiane Fahas v. Council of the European Union, T-49/07,  

7 December 2010.............................................................................................. 91, 94
Stefano Melloni v. Ministerio Fiscal, C-399/11, 26 February 2013 ................45, 47, 90
Texdata Software GmbH, C-418/11, 26 September 2013 ...........................................61
The Queen v. Secretary of State for Transport, ex parte: Factortame Ltd  

and others, C-213/89, 19 June 1990...................................................................... 96

The Queen, on the application of David Edwards and Lilian Pallikaropoulos 

v. Environment Agency and others, C-260/11, 11 April 2013 ................... 118, 177

Thomas Pringle v. Government of Ireland, Ireland and The Attorney 

General, C-370/12, 27 November 2012 ............................................................... 28

Trade Agency Ltd v. Seramico Investments Ltd, C-619/10,  

6 September 2012 ......................................................................................28, 44, 61

Ufficio IVA di Piacenza v. Belvedere Costruzioni Srl., C-500/10,  

29 March 2012 ............................................................................................... 133, 141

Unibet (London) Ltd and Unibet (International) Ltd v. Justitiekanslern, 

C-432/05, 13 March 2007 ...................................................................................... 29

Unicaja Banco SA v. José Hidalgo Rueda and Others, Caixabank SA v. 
Manuel María Rueda Ledesma and Others, Caixabank SA v. José 
Labella Crespo and Others and Caixabank SA v. Alberto Galán Luna  
and Others, Joined cases C-482/13, C-484/13, C-485/13,  
C-487/13, 21 January 2015 ............................................................................. 96, 161

Unión de Pequeños Agricultores v. Council of the European Union,  

C-50/00 P, 25 July 2002 ...................................................................................94, 96

UPC Telekabel Wien GmbH v. Constantin Film Verleih GmbH and Wega 

Filmproduktionsgesellschaft mbH, C-314/12, 27 March 2014 ..................92, 109
Ute Reindl v. Bezirkshauptmannschaft Innsbruck, C-443/13, 13 November 2014 .....115
Valeri Hariev Belov v. CHEZ Elektro Balgaria AD and others (Bulgaria and 

the European Commission intervening), C-394/11, 31 January 2013 ......... 23, 33

Volker und Markus Schecke GbR and Hartmut Eifert v. Land Hessen, 

C-92/09 and C-93/09, 9 November 2010 ........................................................... 115

Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of 
the European Union and Commission of the European Communities, 
Joined cases C-402/05 P and C-415/05 P, 3 September 2008 .......................... 94
ZZ v. Secretary of State for the Home Department, C-300/11, 4 June 2013............ 43

Index

203

Case-law of the European Court of Human Rights

A v. Croatia, No. 55164/08, 14 October 2010 ............................................................ 160
A. v. the United Kingdom, No. 100/1997/884/1096, 23 September 1998 ............ 160
A. v. the United Kingdom, No. 35373/97, 17 December 2002 ....................59, 114, 126
A.B. v. Slovakia, No. 41784/98, 4 March 2003 ............................................................ 64
A.K. and L. v. Croatia, No. 37956/11, 8 January 2013 ........................................149, 154
A.K. v. Liechentenstein, No. 38191/12, 9 July 2015 .................................................... 39
A.T. v. Luxembourg, No. 30460/13, 9 April 2015 ............................................ 79, 81, 87
Abdollahi v. Turkey, No. 23980/08, 3 November 2009 ............................................107
Aerts v. Belgium, No. 25357/94, 30 July 1998 ............................................................. 60
Airey v. Ireland, No. 6289/73, 9 October 1979 ............................ 57, 58, 60, 64, 75, 76
Al-Adsani v. the United Kingdom [GC], No. 35763/97, 21 November 2001 ............127
Albert and Le Compte v. Belgium, Nos. 7299/75 and 7496/76,  

10 February 1983 ..................................................................................................... 31

Ališić and Others v. Bosnia and Herzegovina, Croatia, Serbia, Slovenia  

and the former Yugoslav Republic of Macedonia [GC],  
No. 60642/08, 16 July 2014 .................................................................................. 99
Allan Jacobsson (No. 2) v. Sweden, No. 16970/90, 19 February 1998 ..................... 45
Al-Skeini and Others v. the United Kingdom [GC], No. 55721/07, 7 July 2011 ..........18
Ananyev and Others v. Russia, Nos. 42525/07 and 60800/08,  

10 January 2012 ...............................................................................................91, 103
Anghel v. Italy, No. 5968/09, 25 June 2013 ........................................................... 73, 77
Aquilina v. Malta [GC], No. 25642/94, 29 April 1999 ...............................................169
Aras v. Turkey (No. 2), No. 15065/07, 18 November 2014 .................................. 73, 83
Artico v. Italy, No. 6694/74, 13 May 1980 .................................................26, 70, 71, 84
Ashingdane v. the United Kingdom, No. 8225/78, 28 May 1985 ............. 28, 113, 165
Assanidze v. Georgia [GC], No. 71503/01, 8 April 2004 ............................................139
B. and P. v the United Kingdom, Nos. 36337/97 and 35974/97, 24 April 2001 ........47
Baggetta v. Italy, No. 10256/83, 25 June 1987 ...........................................................140
Bauer v. Slovenia, No. 75402/01, 9 March 2006 .......................................................146
Beaumartin v. France, No. 15287/89, 24 November 1994 ..........................................35
Becker v. Austria, No. 19844/08, 11 June 2015 ........................................................... 46
Běleš and others v. the Czech Republic, No. 47273/99,  

12 November 2002 ......................................................................................... 26, 120
Belilos v. Switzerland, No. 10328/83, 29 April 1988 .................................................. 30

204

Handbook on European law relating to access to justiceBenham v. the United Kingdom [GC], No. 19380/92, 10 June 1996 ......................... 70
Benthem v. the Netherlands, No. 8848/80, 23 October 1985 .............................31, 32
Bertuzzi v. France, No. 36378/97, 13 February 2003 ............................................ 73, 76
Blake v. the United Kingdom, No. 68890/01, 26 September 2006 .........................136
Boddaert v. Belgium, No. 12919/87, 12 October 1992 ...............................................140
Bogdel v. Lithuania, No. 41248/06, 26 November 2013 ...................................112, 125
Boulois v. Luxembourg [GC], No. 37575/04, 3 April 2012 .......................................... 27
Brandstetter v. Austria, Nos. 11170/84, 12876/87 and 13468/87,  

28 August 1991 ....................................................................................................... 43

Breinesberger and Wenzelhuemer v Austria, No. 46601/07,  

27 November 2012 ................................................................................................142
Brennan v. the United Kingdom, No. 39846/98, 16 October 2001........................... 80
Brosa v. Germany, No. 5709/09, 17 April 2014 ....................................................92, 108
Buchholz v. Germany, No. 7759/77, 6 May 1981 ........................................................144
Budayeva and others v. Russia, Nos. 15339/02, 21166/02, 20058/02, 

11673/02 and 15343/02, 20 March 2008 ............................................................ 97
Burdov v. Russia (No. 2), No. 33509/04, 15 January 2009 ...............................102, 112
Bykov v. Russia [GC], No. 4378/02, 10 March 2009 .................................................169
C.G.I.L. and Cofferati (No. 2) v. Italy, No. 2/08, 6 April 2010 ...........................112, 126
Cadiroğlu v. Turkey, No. 15762/10, 3 September 2013 ..............................................159
Campbell and Fell v. the United Kingdom, Nos. 7819/77 

 and 7878/77, 28 June 1984 .........................................................30, 32, 35, 36, 86
Capuano v. Italy, No. 9381/81, 25 June 1987 ..................................................... 140, 144
Chahal v. the United Kingdom [GC], No. 22414/93, 15 November 1996 ............... 100
Chudun v. Russia, No. 20641/04, 21 June 2011 ..........................................................146
Ciorcan and Others v. Romania, Nos. 29414/09 and 44841/09,  

27 January 2015 .....................................................................................................158

Clinique des Acacias and Others v. France, Nos. 65399/01,  

65406/01, 65405/01 and 65407/01, 13 October 2005 ...................................... 43
Cocchiarella v. Italy [GC], No. 64886/01, 29 March 2006 ........................................144
Cordova v. Italy (No. 2), No. 45649/99, 30 January 2003 .........................................126
Correia de Matos v. Portugal, No. 48188/99, 15 November 2001 ............................ 90
Costello-Roberts v. the United Kingdom, No. 13134/87, 25 March 1993 ......... 95, 159
Cristina Boicenco v. Moldova, No. 25688/09, 27 September 2011 .........................172
Croissant v. Germany, No. 13611/88, 25 September 1992 ............................68, 84, 90
Czekalla v. Portugal, No. 38830/97, 10 October 2002 .......................................... 71, 84

Index

205

Damian-Burueana and Damian v. Romania, No. 6773/02, 26 May 2009 .............. 171
Daud v. Portugal, No. 22600/93, 21 April 1998 .......................................................... 83
Dayanan v. Turkey, No. 7377/03, 13 October 2009 ..............................................80, 85
De Souza Ribeiro v. France [GC], No. 22689/07, 13 December 2012 ....................... 97
Del Sol v. France, No. 46800/99, 26 February 2002 .................................................. 59
Deumeland v. Germany, No. 9384/81, 29 May 1986 ................................................140
Diennet v. France, No. 18160/91, 26 September 1995 ................................................47
Dink v. Turkey, Nos. 2668/07 et al., 14 September 2010 .................................149, 159
Dobbertin v. France, No. 13089/87, 25 February 1993 ...................................... 137, 144
Doorson v. the Netherlands, No. 20524/92, 26 March 1996 .................................. 160
Douiyeb v. the Netherlands [GC], No. 31464/96, 4 August 1999 ............................170
DRAFT - OVA a.s. v. Slovakia, No. 72493/10, 9 June 2015 ..........................................35
Eckle v. Germany, No. 8130/78, 15 July 1982 .................................... 138, 139, 142, 143
Éditions Plon v. France, No. 58148/00, 18 August 2004 ...........................................107
Edwards v. the United Kingdom, No. 13071/87, 16 December 1992 ........................ 40
Engel and others v. the Netherlands, Nos. 5100/71, 5101/71, 5102/71, 

5354/72 and 5370/72, 8 June 1976 ..................................................................... 27
Er and Others v. Turkey, No. 23016/04, 31 July 2012 ..................................................18
Ezeh and Connors v. the United Kingdom [GC], No. 39665/98 and 

40086/98, 9 October 2003 ................................................................................... 27
Farcaş v. Romania, No. 32596/04, 14 September 2010 ............................................153
Fayed v. the United Kingdom, No. 17101/90, 21 September 1994 ..........................127
Ferrantelli and Santangelo v. Italy, No. 19874/92, 7 August 1996 ..........................142
Ferrazzini v. Italy [GC], No. 44759/98, 12 July 2001 ................................................... 28
Fey v. Austria, No. 14396/88, 24 February 1993 ........................................................ 38
Findlay v. the United Kingdom, No. 22107/93, 25 February 1997 ............................ 34
Frasik v. Poland, No. 22933/02, 5 January 2010 ........................................................170
Fruni v. Slovakia, No. 8014/07, 21 June 2011 ............................................................... 36
Frydlender v. France [GC], No. 30979/96, 27 June 2000 ..........................................140
Gäfgen v. Germany [GC], No. 22978/05, 1 June 2010 ...............................................159
Galina Kostova v. Bulgaria, No. 36181/05, 12 November 2013 .................................. 31
Galstyan v. Armenia, No. 26986/03, 15 November 2007 .................................... 74, 90
García Ruiz v. Spain [GC], No. 30544/96, 21 January 1999........................................ 44
Gautrin and others v. France, No. 21257/93, 20 May 1998 ....................................... 38
George Kempers v. Austria, No. 21842/93, Commission report  

adopted on 14 January 1998 ................................................................................. 80

206

Handbook on European law relating to access to justiceGiacomelli v. Italy, No. 59909/00, 2 November 2006............................................... 174
Glaser v. the United Kingdom, No. 32346/96, 19 September 2000 ......................... 63
Glor v. Switzerland, No. 13444/04, 30 April 2009 .....................................................153
Gnahoré v. France, No. 40031/98, 19 September 2000 ............................................ 64
Goddi v. Italy, No. 8966/80, 9 April 1984 .................................................................... 78
Golder v. the United Kingdom, No. 4451/70, 21 February 1975..........23, 26, 136, 165
Gorraiz Lizarraga and others v. Spain, No. 62543/00, 27 April 2004 ...................... 174
Gorshkov v. Ukraine, No. 67531/01, 8 November 2005 ................................... 152, 166
Granger v. the United Kingdom, No. 11932/86, 28 March 1990 ................................ 71
Granos Organicos Nacionales S.A. v. Germany, No. 19508/07, 22 March 2012 ...... 60
Gubkin v. Russia, No. 36941/02, 23 April 2009 .........................................................143
Guerra and others v. Italy [GC], No. 14967/89, 19 February 1998 ...........................173
Guincho v. Portugal, No. 8990/80, 10 July 1984 ........................................................137
Gülmez v. Turkey, No. 16330/02, 20 May 2008 ........................................................165
Gurgurov v. Moldova, No. 7045/08, 16 June 2009 ....................................................123
Gutsanovi v. Bulgaria, No. 34529/10, 15 October 2013 ............................................ 168
Hadjianastassiou v. Greece, No. 12945/87, 16 December 1992 ................................ 44
Håkansson and Sturesson v. Sweden, No. 11855/85, 21 February 1990 ..................47
Hansen v. Norway, No. 15319/09, 2 October 2014 ..................................................... 45
Harrison Mckee v. Hungary, No. 22840/07, 3 June 2014 ...................................111, 114
Hassan and Others v. France, Nos. 46695/10 and 54588/10,  

4 December 2014 ......................................................................................... 150, 168

Henryk Urban and Ryszard Urban v. Poland, No. 23614/08,  

30 November 2010 ................................................................................................. 36
Hermi v. Italy [GC], No. 18114/02, 18 October 2006 .................................................. 46
Hirvisaari v. Finland, No. 49684/99, 27 September 2001 .......................................... 45
Hoholm v. Slovakia, No. 35632/13, 13 January 2015 .................................................146
Hokkanen v. Finland, No. 19823/92, 23 September 1994 ........................................146
Hornsby v. Greece, No. 18357/91, 19 March 1997 ...............................................41, 128
Ibrahim Gürkan v. Turkey, No. 10987/10, 3 July 2012 .....................................23, 32, 37
Idalov v. Russia [GC], No. 5826/03, 22 May 2012 .....................................................169
Iglin v. Ukraine, No. 39908/05, 12 January 2012 ........................................................ 85
Ilhan v. Turkey [GC], No. 22277/93, 27 June 2000 .................................................... 174
Imbrioscia v. Switzerland, No. 13972/88, 24 November 1993 .................................. 83
Jabłoński v. Poland, No. 33492/96, 21 December 2000 ...........................................146
Jama v. Slovenia, No. 48163/08, 19 July 2012 ............................................................135

Index

207

Janosevic v. Sweden, No. 34619/97, 23 July 2002 ...................................................... 26
Jodko v. Lithuania, No. 39350/98, 07 September 1999 ............................................. 44
John Murray v. the United Kingdom [GC], No. 18731/91, 8 February 1996 ............. 79
Jones and others v. the United Kingdom, Nos. 34356/06 and  

40528/06, 14 January 2014 ..................................................................................127

Julius Kloiber Schlachthof GmbH and Others v. Austria, Nos. 21565/07, 

21572/07, 21575/07 and 21580/07, 4 April 2013 .......................................... 23, 30
Jussila v. Finland [GC], No. 73053/01, 23 November 2006 ..................................45, 46
Karahalios v. Greece, No. 62503/00, 11 December 2003 .........................................129
Kemmache v. France (Nos. 1 and 2), Nos. 12325/86 and 14992/89,  

27 November 1991 ................................................................................................147
Khalfaoui v. France, No. 34791/97, 14 December 1999 .............................................. 26
Khan v. the United Kingdom, No. 35394/97, 12 May 2000 ..................................... 100
Khrabrova v. Russia, No. 18498/04, 2 October 2012 ........................................... 24, 47
Kijewska v. Poland, No. 73002/01, 6 September 2007 .....................................113, 117
Kincses v. Hungary, No. 66232/10, 27 January 2015 .................................................140
Kirilova and others v. Bulgaria, Nos. 42908/98, 44038/98, 44816/98  

and 7319/02, 9 June 2005 ....................................................................................103
Klass and others v. Germany, No. 5029/71, 6 September 1978 ............................... 94
Kleyn and Others v. the Netherlands [GC], Nos. 39343/98,  

39651/98, 43147/98 and 46664/99, 6 May 2003.............................................. 39
Klouvi v. France, No. 30754/03, 30 June 2011 ....................................................112, 122
Kolevi v. Bulgaria, No. 1108/02, 5 November 2009 ..................................................159
König v. Germany, No. 6232/73, 28 June 1978 .................................... 27, 137, 139, 140
Koottummel v. Austria, No. 49616/06, 10 December 2009 ...................................... 46
Krasuski v. Poland, No. 61444/00, 14 June 2005 ........................................................ 98
Krčmář and others v. Czech Republic, No. 35376/97, 3 March 2000 ........................ 43
Kremzow v. Austria, No. 12350/86, 21 September 1993 ........................................... 46
Kreuz v. Poland, No. 28249/95, 19 June 2001 ............................................................ 117
Kudła v. Poland [GC], No. 30210/96, 26 October 2000 ................ 94, 98, 99, 136, 147
Kutic v. Croatia, No. 48778/99, 1 March 2002 ............................................................. 28
Kuttner v. Austria, No. 7997/08, 16 July 2015 ............................................................170
Kyprianou v. Cyprus [GC], No. 73797/01, 15 December 2005 ................................... 38
L.B. v. Belgium, No. 22831/08, 2 October 2012 .........................................................167
L.R. v. France, No. 33395/96, 27 June 2002 ...............................................................169
Lagerblom v. Sweden, No. 26891/95, 14 January 2003 ................................. 67, 73, 84

208

Handbook on European law relating to access to justiceLangborger v. Sweden, No. 11179/84, 22 June 1989 .................................................. 36
Lanz v. Austria, No. 24430/94, 31 January 2002 ...................................................73, 80
Lawyer Partners a.s. v. Slovakia, Nos. 54252/07 et al., 16 June 2009 ...........150, 178
Lechner and Hess v. Austria, No. 9316/81, 23 April 1987 .........................................144
Lithgow and Others v. the United Kingdom, Nos. 9006/80, 9262/81, 

9263/81, 9265/81, 9266/81, 9313/81 and 9405/81, 8 July 1986.......... 30, 31, 32
Lopez Ostra v. Spain, No. 16798/90, 9 December 1994 ...........................................173
M. and Others v. Italy and Bulgaria, No. 40020/03, 31 July 2012 ............................158
M.C. v. Bulgaria, No. 39272/98, 4 December 2003 .................................................. 160
M.H. v. the United Kingdom, No. 11577/06, 22 October 2013 ..................................169
M.S.S. v. Belgium and Greece [GC], No. 30696/09, 21 January 2011 ....................... 95
Maaouia v. France [GC], No. 39652/98, 5 October 2000 .......................................... 28
Maktouf and Damjanović v. Bosnia and Herzegovina [GC],  

Nos. 2312/08 and 34179/08, 18 July 2013 .................................................... 23, 35
Malgalhães Pereira v. Portugal, No. 44872/98, 26 February 2002 ........................169
Malkov v. Estonia, No. 31407/07, 4 February 2010 ............................................133, 138
Martinie v. France [GC], No. 58675/00, 12 April 2006 ............................................... 39
Martins Moreira v. Portugal, No. 11371/85, 26 October 1988 ..................137, 144, 146
Maširević v. Serbia, No. 30671/08, 11 February 2014 ....................................... 111, 120
Matoń v. Poland, No. 30279/07, 9 June 2009 .....................................................133, 142
Matter v. Slovakia, No. 31534/96, 5 July 1999 ...........................................................157
Mayzit v. Russia, No. 63378/00, 20 January 2005 ...................................................... 85
McFarlane v. Ireland [GC], No. 31333/06, 10 September 2010 ................... 91, 95, 148
McGinley and Egan v. the United Kingdom, Nos. 21825/93  

and 23414/94, 9 June 1998 .................................................................................. 174
McKay v. the United Kingdom [GC], No. 543/03, 3 October 2006 ......................... 168
McVicar v. the United Kingdom, No. 46311/99, 7 May 2002 ..................57, 64, 65, 76
Meftah and Others v. France [GC], Nos. 32911/96, 35237/97  

and 34595/97, 26 July 2002 .............................................................................67, 85
Megyeri v. Germany, No. 13770/88, 12 May 1992 .................................... 82, 166, 169
Mehmet Ümit Erdem v. Turkey, No. 42234/02, 17 July 2008 ...................................159
Melin v. France, No. 12914/87, 22 June 1993 ............................................................... 90
Menson v. the United Kingdom, No. 47916/99, 6 May 2003 ...................................159
Micallef v. Malta [GC], No. 17056/06, 15 October 2009 ............................................ 38
Mikulić v. Croatia, No. 53176/99, 7 February 2002 ............................................134, 147
Milasi v. Italy, No. 10527/83, 25 June 1987 ........................................................ 140, 145

Index

209

Miragall Escolano and Others v. Spain, Nos. 38366/97, 38688/97, 40777/98, 
40843/98, 41015/98, 41400/98, 41446/98, 41484/98, 41487/98  
and 41509/98, 25 May 2000 ...............................................................................120
Mirosław Orzechowski v. Poland, No. 13526/07, 13 January 2009 ........................... 64
Mitev v. Bulgaria, No. 40063/98, 22 December 2004 ..............................................142
Moiseyev v. Russia, No. 62936/00, 9 October 2008 ................................................143
Momčilović v. Croatia, No. 11239/11, 26 March 2015 ................................................. 50
Monnell and Morris v. the United Kingdom, Nos. 9562/81 and  

9818/82, 2 March 1987 ....................................................................................45, 71
Mooren v. Germany [GC], No. 11364/03, 9 July 2009 ...............................................170
Morice v. France [GC], No. 29369/10, 23 April 2015 .................................................. 38
Mosley v. the United Kingdom, No. 48009/08, 10 May 2011 ................................. 108
MPP Golub v. Ukraine, No. 6778/05, 18 October 2005 .............................................124
Nachova and Others v. Bulgaria [GC], Nos. 43577/98 and 43579/98,  

6 July 2005 ..............................................................................................................158
Nenov v. Bulgaria, No. 33738/02, 16 July 2009 .................................................. 64, 154
Neumeister v. Austria, No. 1936/63, 27 June 1968 ....................................................139
Norbert Sikorski v. Poland, No. 17599/05, 22 October 2009 ...................................148
Öcalan v. Turkey [GC], No. 46221/99, 12 May 2005 .................................................. 85
Oleksandr Volkov v. Ukraine, No. 21722/11, 9 January 2013 .................................... 49
Öneryıldız v. Turkey [GC], No. 48939/99, 30 November 2004 ................................173
Orchowski v. Poland, No. 17885/04, 22 October 2009 .............................................148
Oršuš and Others v. Croatia [GC], No. 15766/03, 16 March 2010 ....................133, 137
Osman v. the United Kingdom [GC], No. 23452/94, 28 October 1998 ...................159
Öztürk v. Germany, No. 8544/79, 21 February 1984 .................................................. 27
P. and S. v. Poland, No. 57375/08, 30 October 2012 .................................................158
P., C. and S. v. The United Kingdom, No. 56547/00, 16 July 2002 ............................. 60
Pafitis and others v. Greece, No. 20323/92, 26 February 1998 ..............................144
Pakelli v. Germany, No. 8398/78, 25 April 1983 ...................................................68, 70
Panovits v. Cyprus, No. 4268/04, 11 December 2008 ..........................................82, 88
Papachelas v. Greece [GC], No. 31423/96, 25 March 1999 ......................................142
Papon v. France (No. 2), No. 54210/00, 25 July 2002 ............................................... 114
Parlov-Tkalčić v. Croatia, No. 24810/06, 22 December 2009 ................................... 34
Perdigão v. Portugal [GC], No. 24768/06, 16 November 2010 ................................ 117
Perks and others v. the United Kingdom, Nos. 25277/94, 25279/94, 
25280/94, 25282/94, 25285/94, 28048/95, 28192/95 and  
28456/95, 12 October 1999 .................................................................................. 70

210

Handbook on European law relating to access to justicePescador Valero v. Spain, No. 62435/00, 17 June 2003 ............................................. 38
Pham Hoang v. France, No. 13191/87, 25 September 1992 ....................................... 70
Philis v. Greece, No. 16598/90, 1 July 1992 ................................................................. 90
Piechowicz v. Poland, No. 20071/07, 17 April 2012 ...................................................165
Pierre-Bloch v. France, No. 24194/94, 21 October 1997 ............................................ 28
Pincová and Pinc v. the Czech Republic, No. 36548/97, 5 November 2002 .............. 104
Pishchalnikov v. Russia, No. 7025/04, 24 September 2009 ....................74, 80, 87, 88
Poirot v. France, No. 29938/07, 15 December 2011 ............................................111, 119
Poiss v. Austria, No. 9816/82, 23 April 1987 ......................................................136, 137
Pretto and others v. Italy, No. 7984/77, 8 December 1983 ....................................... 45
Probstmeier v. Germany, No. 20950/92, 1 July 1997 ....................................... 144, 145
Procola v. Luxembourg, No. 14570/89, 28 September 1995 ..................................... 39
Quaranta v. Switzerland, No. 12744/87, 24 May 1991 ....................................69, 70, 79
R. D. v. Poland, Nos. 29692/96 and 34612/97, 18 December 2001 ......................... 68
Radkov v. Bulgaria (no. 2), No. 18382/05, 10 February 2011 ...................................103
Ramirez Sanchez v. France [GC], No. 59450/00, 4 July 2006 ............................. 91, 99
Ramsahai and others v. the Netherlands [GC], No. 52391/99, 15 May 2007 ........159
Rantsev v. Cyprus and Russia, No. 25965/04, 7 January 2010 ................................158
Regent Company v. Ukraine, No. 773/03, 3 April 2008 .............................................. 51
Rehbock v. Slovenia, No. 29462/95, 28 November 2000 ........................................170
Ringeisen v. Austria, No. 2614/65, 16 July 1971 .......................................... 75, 138, 142
Rodrigues Da Silva and Hoogkamer v. Netherlands,  

No. 50435/99, 31 January 2006 ........................................................................... 121
Rotaru v. Romania [GC], No. 28341/95, 4 May 2000 ........................................... 91, 93
Rowe and Davies v. the United Kingdom [GC], No. 28901/95,  

16 February 2000 ................................................................................................... 43
Ruiz-Mateos v. Spain, No. 12952/87, 23 June 1993 ...............................................41, 43
Rumor v. Italy, No. 72964/10, 27 May 2014 ..............................................................159
Rutkowski and Others v. Poland, Nos. 72287/10, 13927/11 and  

46187/11, 7 July 2015 .............................................................................................145
S. v. Switzerland, Nos. 12629/87 and 13965/88, 28 November 1991...................... 80
S.C. v. the United Kingdom, No. 60958/00, 15 June 2004 ......................................... 82
Sacaleanu v. Romania, No. 73970/01, 6 September 2005 .......................................129
Saint-Paul Luxembourg S.A. v. Luxembourg, No. 26419/10, 18 April 2013 ............ 114
Sakhnovskiy v. Russia [GC], No. 21272/03, 2 November 2010 ..........................80, 87
Salabiaku v. France, No. 10519/83, 7 October 1988 ..................................................122

Index

211

Salduz v. Turkey [GC], No. 36391/02, 27 November 2008 ........................... 67, 73, 79
Şaman v. Turkey, No 35292/05, 5 April 2011 .............................................................. 88
Santambrogio v. Italy, No. 61945/00, 21 September 2004 ....................................... 63
Scordino v. Italy (No. 1) [GC],No. 36813/97,  

29 March 2006 ....................................................................... 18, 129, 134, 138, 147
Scuderi v. Italy, No. 12986/87, 24 August 1993..........................................................135
Shtukaturov v. Russia, No. 44009/05, 27 March 2008 .....................................149, 156
Shulgin v. Ukraine, No. 29912/05, 8 December 2011 ................................................120
Siałkowska v. Poland, No. 8932/05, 22 March 2007 ................................................. 64
Silver and others v. the United Kingdom, Nos. 5947/72, 6205/73, 7052/75, 

7061/75, 7107/75, 7113/75 and 7136/75, 25 March 1983 ............................... 100

Sociedade de Construções Martins & Vieira, Lda. and Others v. Portugal, 

Nos. 56637/10 and others, 30 October 2014 ............................................ 134, 144
Somogyi v. Hungary, No. 5770/05, 11 January 2011 ..................................................170
Sotiris and Nikos Koutras ATTEE v. Greece, No. 39442/98,  

16 November 2000 ...............................................................................................120
Sramek v. Austria, No. 8790/79, 22 October 1984 ...................................................... 31
Stanev v. Bulgaria [GC], No. 36760/06, 17 January 2012 ................................ 150, 166
Stankiewicz v. Poland, No. 46917/99, 6 April 2006 ................................................... 118
Stankov v. Bulgaria, No. 68490/01, 12 July 2007 ................................................ 111, 117
Starokadomskiy v. Russia (No. 2), No. 27455/06, 13 March 2014 ................... 133, 141
Staroszczyk v. Poland, No. 59519/00, 22 March 2007 ......................................... 64, 77
Steel and Morris v. the United Kingdom, No. 68416/01,  

15 February 2005 ................................................................................. 63, 64, 65, 76
Stögmüller v. Austria, No. 1602/62, 10 November 1969 ..........................................135
Stubbings and others v. the United Kingdom, Nos. 22083/93 and  

22095/93, 22 October 1996 .......................................................................... 98, 124
Suda v. the Czech Republic, No. 1643/06, 28 October 2010 ............................... 24, 52
Suominen v. Finland, No. 37801/97, 1 July 2003 ......................................................... 44
Süssmann v. Germany [GC], No. 20024/92, 16 September 1996 ...........................138
T. v. the United Kingdom [GC], No. 24724/94, 16 December 1999 ...........................75
Taşkin and others v. Turkey, No. 46117/99, 10 November 2004 ..............................173
Tătar v. Romania, No. 67021/01, 27 January 2009 ....................................150, 173, 174
Taxquet v. Belgium [GC], No. 926/05, 16 November 2010........................................ 44
Tierce and others v. San Marino, Nos. 24954/94, 24971/94,  

24972/94, 25 July 2000 ......................................................................................... 45

212

Handbook on European law relating to access to justiceTolstoy Miloslavsky v. the United Kingdom, No. 18139/91, 13 July 1995 ................ 118
Torreggiani and others v. Italy, No. 43517/09, 8 January 2013 .................................102
Tripodi v. Italy, No. 13743/88, 22 February 1994 ........................................................ 84
Tsarenko v. Russia, No. 5235/09, 3 March 2011 .........................................................167
Tsonyo Tsonev v. Bulgaria (No. 2), No. 2376/03, 14 January 2010 .................... 57, 68
Twalib v. Greece, No. 24294/94, 9 June 1998 .................................................57, 68, 84
Tychko v. Russia, No. 56097/07, 11 June 2015 ............................................................138
Unión Alimentaria Sanders SA v. Spain, No. 11681/85, 7 July 1989 ........................143
Užukauskas v. Lithuania, No. 16965/04, 6 July 2010............................................ 24, 43
V. v. the United Kingdom [GC], No. 24888/94, 16 December ....................................75
Valiulienė v. Lithuania, No. 33234/07, 26 March 2013 ..............................................159
Valová, Slezák and Slezák v. Slovakia, No. 44925/98, 1 June 2004 ......................... 46
Vamvakas v. Greece (No. 2), No. 2870/11, 9 April 2015 ............................................ 84
Van Mechelen and Others v. the Netherlands, Nos. 21363/93,  

21364/93, 21427/93 and 22056/93, 23 April 1997 ........................................... 114
Vayiç v. Turkey, No. 18078/02, 20 June 2006 ............................................................144
Veliyev v. Russia, No. 24202/05, 24 June 2010 .................................................133, 143
Vermeulen v. Belgium [GC], No. 19075/91, 20 February 1996 ................................. 43
Vocaturo v. Italy, No. 11891/85, 24 May 1991 ............................................................146
VP Diffusion Sarl v. France, No. 14565/04, 26 August 2008 ......................................61
Vučković and Others v. Serbia [GC], No. 17153/11 and 29 other cases,  

25 March 2014 ........................................................................................................ 95
Wassink v. Netherlands, No. 12535/86, 27 September 1990 ................................... 171
Weber v. Switzerland, No. 11034/84, 22 May 1990 ................................................... 27
Wemhoff v. Germany, No. 2122/64, 27 June 1968 ....................................................138
Werner v. Austria, No. 21835/93, 24 November 1997 ............................................... 43
Wiesinger v. Austria, No. 11796/85, 30 October 1991 ...................................... 142, 143
Winterwerp v. Netherlands, No. 6301/73, 24 October 1979 ................................... 166
Włoch v. Poland (No. 2), No. 33475/08, 10 May 2011 ...............................................172
X and Y v. Croatia, No. 5193/09, 3 November 2011 ...................................................157
X and Y v. the Netherlands, No. 8978/80, 26 March 1985 .............................. 158, 159
X v. France, No. 18020/91, 31 March 1992 ..................................................................146
Y. v. Slovenia, No. 41107/10, 28 May 2015 ................................................................ 160
Yagtzilar and others v. Greece, No. 41727/98, 6 December 2001 ...........................144
Yaikov v. Russia, No. 39317/05, 18 June 2015 .............................................................142

Index

213

Yarashonen v. Turkey, No. 72710/11, 24 June 2014 .............................................. 91, 98
Yevgeniy Petrenko v. Ukraine, No. 55749/08, 29 January 2015 ............................... 79
Yuriy Nikolayevich Ivanov v. Ukraine, No. 40450/04,  

15 October 2009 ................................................................................... 112, 103, 129

Z and others v. the United Kingdom [GC], No. 29392/95,  

10 May 2001 .................................................................................................... 99, 158
Zdravko Stanev v. Bulgaria, No. 32238/04, 6 November 2012 .....................57, 69, 70
Zehentner v. Austria, No. 20082/02, 16 July 2009 ....................................................155
Ziliberberg v. Moldova, No.61821/00, 1 February 2005 ............................................. 27
Zimmermann and Steiner v. Switzerland, No. 8737/79, 13 July 1983 ......................145
Zumtobel v. Austria, No. 12235/86, 21 September 1993 ........................................... 49

Case-law of the UN Human Rights Committee

Casanovas v. France, Communication No. 1514/2006,  

views of 28 October 2008 ................................................................................... 117

Czernin v. Czech Republic, Communication No. 823/1998, views of 29 

March 2005 ......................................................................................................41, 128

214

Handbook on European law relating to access to justiceA great deal of information on the European Union Agency for Fundamental Rights is available on 
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Access  to  justice  is  an  important  element  of  the  rule  of  law.  It  enables  individuals  to  protect 
themselves against infringements of their rights, to remedy civil wrongs, to hold executive power 
accountable  and  to  defend  themselves  in  criminal  proceedings.  This  handbook  summarises  the 
key European legal principles in the area of access to justice, focusing on civil and criminal law. It 
seeks to raise awareness of the relevant legal standards set by the European Union (EU) and the 
Council of Europe, particularly through the case law of the Court of Justice of the European Union 
and the European Court of Human Rights. The handbook is designed to serve as a practical guide for 
lawyers, judges and other legal practitioners involved in litigation in the EU and in Council of Europe 
member states, as well as for individuals who work for non-governmental organisations and other 
entities that deal with the administration of justice.

EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS
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Tel. +43 (1) 580 30-60 – Fax +43 (1) 580 30-693
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EUROPEAN COURT OF HUMAN RIGHTS
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ISBN 978-92-871-9860-0 (CoE)
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