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Statement by Ms. Navi Pillay, United Nations High Commissioner for Human Rights to the Fundamental Rights Conference 2012

“Justice in austerity – challenges and opportunities for access to justice”

Brussels, 6 December 2012

Excellencies,
Ladies and Gentlemen,

It is a pleasure and an honour for me to address you on the occasion of the Fundamental Rights Conference 2012. The topic of this year’s conference – “Justice in austerity” – is very timely and in this context it is indeed vital to analyse the challenges and opportunities for access to justice.

I also welcome the impressive research and EU-wide comparative analysis undertaken by the Fundamental Rights Agency (FRA) on this issue. For example, last year’s FRA report on “Access to justice in Europe” describes the avenues available at the national level and also refers to judicial and quasi-judicial mechanisms at both the European and international levels, including the United Nations human rights treaty bodies.

It is important that the European Union – similar to national Governments – has its own independent body in place that produces reliable information on key human rights challenges persisting in the European Union. In this way the European Union can be credible in promoting the respect for human rights in other parts of the world, as well as developing human rights policies that are informed by accurate data and evidence gained from the situation on the ground. For instance, the Agency’s research on the experiences of rights-holders when exercising their rights in practice – or not being able to do so – is crucial in our discussion today on access to justice. With such research we are able to say with some certainty which obstacles to access to justice exist and what works in practice. This is a sound basis for legislative as well as other kinds of improvements.

I would like to share with you some observations and recommendations on our Conference’s topic “Justice in austerity”, essentially from an international human rights law perspective.

The context of the financial crisis and economic recession has led many States to embark upon austerity programmes and budget cuts in efforts to stabilize their economies. Let me emphasise, though, how important it is to adopt a human rights-based approach to such programmes if and when States choose to pursue them.

While decisions on austerity measures are always difficult, Governments have to ensure that their economic policies, especially when they entail deep cuts in public spending, do not lead to discrimination and negatively impact the enjoyment of human rights, for example the right to adequate housing, food, health care, education and access to justice. In addition, economic stabilisation measures should pay special attention to the needs of the poorest and most vulnerable. It is crucial to ensure that persons living in poverty, migrants, refugees, women, children, members of minorities, persons with disabilities and the elderly are not disproportionately affected by austerity measures.

In this context, I would particularly like to emphasize access to justice of migrants, including those in an irregular situation, and members of ethnic minorities, in particular the Roma and Travellers. Migrants as well as Roma and Travellers often face barriers to accessing justice due to widespread discrimination and a lack of awareness of the rights to which they are entitled. The EU and its Member States have introduced excellent non-discrimination legislation, but it is not sufficiently drawn upon by these groups at risk. Indeed, research has shown that the knowledge of this legislation remains scanty among the general European public. Roma rarely make complaints – even though groundbreaking research carried out by FRA shows that they have the highest incidence of discrimination experiences of all groups. In conditions of economic crisis, moreover, the Roma and Travellers are increasingly at risk of becoming scapegoats, being targeted for repressive treatment, forced evictions, placement in segregated enclaves under police surveillance, through decisions taken by local and even national politicians.

I would therefore encourage the EU and the Governments of all EU Member States to clearly condemn all forms of anti-Roma racism, and the equality bodies established under EU directives to increase their efforts at addressing systemic forms of discrimination which persist against the Roma and migrants, above all in the housing and labour markets. I would also encourage the equality bodies to continue raising the awareness of existing safeguards under national, European and international law among these categories of rights-holders themselves.

In the context of the large-scale and repeated demonstrations against austerity measures we have seen in some countries, the full enjoyment of certain civil and political rights might at times also be threatened, for instance the right of peaceful assembly and freedom of expression. Law enforcement officials should only use force when strictly necessary and to the extent required to maintain public order and protect those participating in protests, in accordance with international standards, even though this may be challenging in times of social tensions and large scale public outcries. Any allegations of excessive or indiscriminate use of force by law enforcement officials should be properly investigated and appropriate action taken against the responsible officials.

Mounting social tension in several countries shows the dangers which can be associated with curtailing economic, social and cultural rights. Authorities should mitigate the social impacts of the austerity measures on the most vulnerable segments of the population by ensuring widespread consultations with all segments of society that are likely to be impacted by budgetary reductions. Through the compilation of disaggregated statistical information, authorities can identify the individuals and groups affected and thereby increase the effectiveness of efforts to protect their economic, social and cultural rights.   In general, improved data collection is needed for a more scientific approach to analysing what works and what does not work for the protection of human rights. In this context there is an acute need for focusing on comparability, indicators and benchmarks.

While States have a margin of appreciation with regard to austerity measures, this margin of appreciation is not unlimited. Once States have decided to implement austerity programmes or budget cuts, considerations regarding human rights obligations of States should guide all decision-making in this area.

Retrogressive measures affecting economic, social and cultural rights can only be justified after a careful examination of all alternatives, and only if they meet the following criteria. Measures should be of a temporary character, limited to the period of crisis. They should be strictly necessary and proportionate, in the sense that the adoption of any other policy, or failure to act, would be more detrimental to the concerned rights. Austerity measures should also respect the principle of equality and comply with the prohibition of discrimination, and be accompanied by a simultaneous adoption of measures to mitigate the effect of the crisis on the most vulnerable.

Finally, austerity measures are only acceptable if they do not affect the minimum core obligations entailed by the economic, social and cultural rights that States have committed to respect, protect and fulfil.

As a general human rights principle, access to justice should be also ensured in the area of economic, social and cultural rights. A wealth of national and regional experience has shown the path for increased recognition of the possibilities of adjudication and judicial protection of economic, social and cultural rights. This trend has also been reflected in the international sphere with the adoption of the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights. Access to justice and to adequate remedies in case of alleged violations of economic, social and cultural rights have been identified by UN treaty bodies as appropriate measures to give domestic effect to these human rights and as an important accountability mechanism. Judicial overview of State measures regarding economic, social and cultural rights should indeed apply to austerity measures, in particular if they adversely affect the most vulnerable groups in society or the enjoyment of minimum essential levels of those rights.

For example, persons living in poverty are often unable to access justice or to seek redress for actions and omissions that adversely affect them. They encounter a variety of obstacles, including costs or legal illiteracy which prevent them from successfully registering initial complaints or a lack of accessible and effective complaint mechanisms to challenge administrative or judicial decisions that affect them adversely. The latest thematic report of the Special Rapporteur on extreme poverty elaborates upon the ways in which violations of certain human rights prevent people living in poverty from benefiting from legal and adjudicatory processes and mechanisms in an equal and non-discriminatory manner.

When judicial systems receive inadequate financial and human resource allocations from State budgets, then the police, prosecution and courts are understaffed and poorly equipped. The Special Rapporteur stressed that the result is serious neglect and even mistreatment of those seeking justice, which is more pronounced for the most disadvantaged. In September 2012, the Human Rights Council adopted by consensus the guiding principles on extreme poverty and human rights, which also include several recommendations to States to ensure the right to equal protection before the law, access to justice and effective remedies.

Let me add that not only are States bound by international human rights treaties, but that also the European Union itself is a party to the Convention on the Rights of Persons with Disabilities (CRPD). Access to justice is enshrined in article 13 of this Convention, which requires parties to “ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages”.

There is growing evidence that budget cuts are affecting persons with disabilities in a particularly harsh way. Community services for persons with disabilities, the provision of personal assistants and individual budgets are often among the areas where the cuts have been most profound. I have heard growing concerns from civil society that this is leading to the re-institutionalization of persons with disabilities, which is against the spirit and wording of the CRPD, article 19 of which aims at their inclusion in the community; indeed, it would be a tragic irony if the ratification of the CRPD by EU Member States were to coincide with a dramatic decrease of the enjoyment of rights laid down in that very Convention. I urge European States to ensure that the most vulnerable in their societies aren’t seen as the “softest targets”, the groups to which cuts can be most easily applied.

In this context, please let me raise one more issue which is directly related to access to justice by persons with disabilities, namely that of legal capacity. Many European States have outdated laws which are incompatible with article 12 of the CRPD, according to which there should be supported decision-making, not substituted decision-making as we still see in a number of European countries.

Persons with intellectual or psychosocial disabilities lack proper access to justice when represented by a guardian unknown to them and who takes bureaucratic decisions – such as institutionalization – on their behalf.   I call on all European States to change such anachronistic laws with no delay, and to ensure that their legislation is fully in line with article 12 of the CRPD.

Ladies and Gentlemen,

In my recent statement at the High-level Meeting on the Rule of Law at the National and International Levels, before the General Assembly, I stressed that the right to access justice and legal aid should be respected and ensured. I am glad that in the Declaration, which was adopted in New York on 24 September 2012, Heads of State and Government committed to an effective, just, non-discriminatory and equitable delivery of public services pertaining to the rule of law, including criminal, civil and administrative justice, commercial dispute settlement and legal aid.

The Declaration also emphasized the right of equal access to justice for all, including members of vulnerable groups, and the importance of awareness-raising concerning legal rights. In this regard, the Heads of State and Government committed to taking all necessary steps to provide fair, transparent, effective, non-discriminatory and accountable services that promote access to justice for all, including legal aid.

I hope that these commitments will be effectively implemented, in particular in times of economic crisis and despite any austerity measures or other actions taken to address the financial situation of States.

Justice in a traditional sense is important but so are non-judicial mechanisms, such as National Human Rights Institution (NHRIs). The fact that there are only 10 EU Member States out of the 27 that currently have NHRIs which are in full compliance with the “Paris Principles” is reason for concern. NHRIs as well as other bodies with a human rights remit play a crucial role in providing or assisting in accessing justice. It is vital that they are, and continue to be, adequately funded and staffed – also and especially in times of austerity.

The discussion at this year’s Fundamental Rights Conference is indeed fundamental in order to analyse the related human rights challenges and to devise strategies in order to avoid any adverse consequences for the rights-holders.

I would like to thank you for your attention, and wish you a truly successful and productive conference.