4: Right of Access to Courts

Question 1

discrimination in the US and access to courts

Answer 1

typically about money

court in principle underlines the fact that he right to a fair trial should not be hindered by discrimination
- equal protection clause and due process clause tightly linked to the right to access

Question 2

right to council in the US

Answer 2

right to a lawyer/legal advice

federal courts

• in criminal matters, provided in Amendment VI
• court considers that there is affirmative duty and that it is unconstitutional for the federation/government to interfere with access to a lawyer (if you have one) but you also have a right to a lawyer and should be given one if you don’t have one

state courts

• Amendment VI only applies to federation and not states
• but right to council can be included in due process of Amendment XIV
• court said that there is a right to council in state courts which is protected under the due process clause since it is essential for a fair trial

Question 3

filing fees in the US: unconstitutional

Answer 3

unconstitutional filing fees for indigents and divorce proceedings

1. when a fundamental right is at issue
2. the state has a monopoly in providing redress

most of the time filing fees are constitutional

Question 4

filing fees in the US: constitutional

Answer 4

2 factors

1. is it the monopoly of the state that allows you to get out of the decision or are there other solutions?
2. question of hierarchy of rights
   - is it a fundamental constitutional right or just a statutory right

if it is not the only option and just a statutory and not a constitutional right, then it is never unconstitutional to have filing fees

Question 5

prisoners’ right of access to courts in the US: negative duty

Answer 5

what the state should refrain from (not what they need to do)

state cannot prevent you from filing a writ, and cannot prevent that inmates help each other to write writs
- also cannot ban law students/paralegals from helping inmates because of due process

Question 6

prisoners’ right of access to courts in the US: affirmative duty

Answer 6

some affirmative action needed and the cost of protecting a constitutional right cannot justify its total denial

constitutional right of access to courts

• access has to be adequate, effective and meaningful
• from Bounds v. Smith

but also from Bounds v. Smith, there is the idea that the fundamental constitutional right of access to courts is not found anywhere
- conservatives opposed the idea of recognising access

Question 7

right to access the ECHR

Answer 7

Article 6 embodies the right to a court
- right of access has to be practical and effective

not absolute but essence of the right should not be impaired

Question 8

legal aid with the ECHR

Answer 8

also in Article 6

enshrined only when it comes to criminal proceedings
- affirmative duty for states to provide with legal assistance when it comes to criminal charges

Question 9

factors considered with regards to civil proceedings and legal aid in the ECHR

Answer 9

importance of what is at stake

complexity of relevant law/procedure

applicant’s capacity to represent themselves effectively

existence of a statutory requirement to have legal representation

financial situation of the litigant

prospects of success in proceedings

Question 10

right to access courts in France

Answer 10

enshrined in the law that you have the right to legal aid

principle that the right to access courts should not be impaired

conditions already there so rare that there is a case that someone is unable to access court because of financial reasons