Access to Courts

Around the world, individuals facing the death penalty are routinely held without access to counsel or to the courts. The right of meaningful access to the courts is recognized in every major human rights instrument. See, e.g., ICCPR art. 9(4) ("Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."); American Declaration of the Rights and Duties of Man, art. 18 ("[e]very person may resort to the courts to ensure respect for his legal rights."). See also for the Protection of All Persons under Any Form of Detention or Imprisonment, G.A. res. 43/173, U.N. Doc. A/43/49 (1988), Principle 32 ("A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention. . . The proceedings . . . shall be simple and expeditious. . ."); American Convention on Human Rights art. 7(6) ("[a]nyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention. . ."); European Convention on Human Rights art. 5(4) ("[e]veryone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful").

International tribunals have observed that the right to effective recourse to a competent court "constitutes one of the basic pillars. . .of the very rule of law in a democratic society," and must be more than a mere formality. See, e.g., Suarez Rosero v. Ecuador, Inter-Am. Ct. H.R., Nov. 12, 1997, at para. 63, 65 (Article 7(6) of the American Convention on Human Rights, involving right of access to a competent tribunal, is not satisfied "with the mere formal existence" of the remedy); Report on the Situation of Human Rights in Panama, Inter-Am. C.H.R., OEA/Ser.L/V/II.44, doc. 38, rev. 1, 1978; Ashingdane v. United Kingdom, 93 Eur. Ct. H.R. (ser. A), para. 57 (1985) (while a country may impose reasonable limitations on the right of access to the courts, "the limitations applied must not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired").

Moreover, if a country provides for more than one appeal as part of the appellate process, the convicted person must be given effective access to each stage of appeal. Henry v. Jamaica, 230/1987, Nov. 1, 1991, Report of the Human Rights Committee, A/47/40, 1992, at 218, para. 8.4.

Cases

Suarez Rosero v. Ecuador, Inter-Am. Ct. H.R., Nov. 12, 1997.

Henry v. Jamaica, 230/1987, Report of the Human Rights Committee, No. A/47/40, Nov. 1, 1991.

Ashingdane v. United Kingdom, 93 Eur. Ct. H.R. (ser. A) (1985).

Commentary

Last updated on October 25, 2011

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