A REVIEW OF THE STANDARDS ADOPTED BY THE INTER-AMERICAN SYSTEM OF HUMAN RIGHTSS

By ORGANIZATION OF AMERICAN STATES. INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

The IACHR requested Commissioner Víctor Abramovich to prepare this review as a conceptual framework for the process of preparing progress indicators on the economic, social, and cultural rights contained in the Protocol of San Salvador, pursuant to resolution AG/RES. 2178 (XXXVI-O/06), adopted by the General Assembly of the OAS on June 6, 2006. Commissioner Abramovich was able to rely on the support of the Executive Secretariat of the IACHR for this task. Gabriela Kletzel, attorney-at-law, played an active part in the preparation of this review in the framework of the research project on "International Standards on Access to Justice" that she pursues at Universidad de San Andres in Argentina.

EXECUTIVE SUMMARY

1. International human rights law has developed standards on the right of access to judicial and other remedies that serve as suitable and effective grievance mechanisms against violations of human rights. In that sense, States not only have a negative obligation not to obstruct access to those remedies but, in particular, a positive duty to organize their institutional apparatus so that all individuals can access those remedies. To that end, states are required to remove any regulatory, social, or economic obstacles that prevent or hinder the possibility of access to justice.

2. In recent years, the inter-American system of human rights (the "IASHR" or "System") has recognized the need to outline principles and standards on the scope of the rights to a fair trial and effective judicial protection in cases involving violation of economic, social and cultural rights ("social rights" or "ESCR").

3. Accordingly, the Inter-American Commission on Human Rights (the "IACHR" or "Inter-American Commission") has prepared this review in order to highlight and systematize the case law of the IASHR–both the IACHR and the Inter-American Court of Human Rights (the "I/A Court H.R." or "Court") – on four core issues that it has regarded as priorities for the judicial protection of economic, social and cultural rights: 1) the obligation to remove economic obstacles to ensure access to the courts; 2) the components of due process of law in administrative proceedings concerning social rights; 3) the components of due process of law in judicial proceedings concerning social rights; and, 4) the components of effective judicial protection of individual and collective social rights.

4. These standards are valuable not only as guidelines for domestic courts to interpret the American Convention on Human Rights ("American Convention" or "Convention") but also in terms of their potential contribution for enhancing the institutional framework of social services and policies in the countries of the Americas, as well as for strengthening oversight, transparency, and accountability systems, as well as mechanisms for participation and societal oversight of public policies in this area. This overview of the case law of the inter-American system also makes it possible to have a better analysis of the main problems in the region as regards access to justice systems. Individual cases cannot be considered absolutely representative of the social and institutional problems of all the countries in the region; however, it is fair to say that the petitions system makes a good sound box for these problems.

5. The first issue that affects the right of access to justice in the area of social rights is the existence of economic or financial obstacles in access to the courts and the extent of the positive obligation of the State to remove those obstacles in order to ensure an effective right to a hearing by a tribunal. In this way, numerous aspects connected with effective access to justice, such as availability of a free public defense for persons without means and procedural costs, are of inestimable instrumental value to ensure the enforceability of economic, social and cultural rights. In this regard, it is common for the unequal economic or social status of litigants to be reflected in an unequal possibility of defense in trial.

6. In this respect, the IASHR has recognized the obligation to remove any obstacles in access to justice that originate from the economic status of persons. Both the Inter-American Court and the IACHR have made it an obligation in certain circumstances to provide free legal services to persons without means in order to prevent infringement of their right to a fair trial and effective judicial protection. With this in view, the Inter-American Commission has identified certain guidelines for determining the propriety of free legal counsel in specific cases. These are: a) the resources available to the person concerned; b) the complexity of the issues involved; and, c) the significance of the rights involved.

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