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Access to justice by people living in poverty (2012)

At the 67th session of the United Nations General Assembly in October 2012, the Special Rapporteur on extreme poverty and human rights, Magdalena Sepúlveda, submitted a report outlining the main obstacles impeding people living in poverty from accessing justice.

Some of the obstacles faced by persons living in poverty, such as the cost of legal advice, administrative fees and other collateral costs, relate directly to their lack of financial resources. Other obstacles, however including lack of access to information and lack of legal recognition are harder to identify and arise out of discrimination against the poorest and most marginalized. People living in poverty and social exclusion come into contact with criminal and administrative controls and sanctions more than any other group in society. In her report the Special Rapporteur refers to the many laws that are inherently biased against persons living in poverty, particularly those which do not recognize or prioritize the abuses they regularly suffer, or have a disproportionately harsh impact on them. When encountering the criminal justice system, people living in poverty are deprived of the means to challenge the conditions of their arrest, remand, trial, conviction, detention and release. In civil and administrative matters where legal aid is not available, persons living in poverty are often denied access to justice in matters involving property, welfare payments, social housing and evictions, and family matters such as child custody.

The limited ability of people living in poverty to access legal and adjudicatory processes and mechanisms is not only a violation of human rights in itself (ICCPR Art. 14), but is also the consequence of numerous other rights violations. The lack of remedies for the negative impacts of social policy in the areas of health, housing, education and social security, or for administrative decisions relating to welfare benefits or asylum proceedings, often results in inability to seek redress in cases of violations of key human rights, such as the right to equality and non-discrimination and the right to social security. The generally complex normative framework of most formal legal systems, designed by the highly educated and often invoking technical jargon, often fails to recognize and account for the experiences, capacities and limitations of those outside the mainstream. People living in poverty, who have been denied the equal opportunity to benefit from education services, are thus de facto excluded from having recourse to legal remedies because of violations of their rights to education (ICESCR Art. 13) and information (ICCPR Art. 19).

In her report, the Special Rapporteur illustrates the interdependence and indivisibility of all economic, social, cultural, civil and political rights for the elimination of extreme poverty and social exclusion, by emphasizing that the realization of certain rights are essential to the promotion and protection of others. The report emphasizes the many obstacles faced by those living in poverty in seeking legal redress through the formal judicial system. They include a lack of financial resources and awareness of legal rights; fear of reprisal or further stigmatization; and inadequate capacity of the judicial system (often resulting in under-prioritization of cases and the imposition of unaffordable fees). These obstacles are compounded by deeply entrenched societal prejudices and stereotypes against the poor. The Special Rapporteur highlights the particular problems faced by women in seeking formal redress, noting that inadequate legal frameworks fail to recognise the financial impediments they often suffer as well as social and cultural constraints which may prevent them from speaking out against abuses or seeking justice. Given the great diversity of social contexts, the Special Rapporteur recognises that there is a no “one size fits all” solution however she encourages States to implement comprehensive policies based on a human rights approach to ensure access to justice for persons living in poverty. The report details several specific steps States can undertake to improve access to justice by people living in poverty, such as to ensure that free legal aid is provided in both civil and criminal cases where the rights and interests of persons living in poverty are at stake.

The full report can be accessed here: E F S A C R