Older Persons' Access to Justice

By Alan S. Gutterman

Access to justice is a core element of the rule of law.  Achieving effective access to justice such that older persons can realize the full benefits of the human and civil rights to which they are entitled on a nondiscriminatory basis requires that the justice system enable older persons to enforce their rights and obtain effective remedies and that older persons be treated equally before the courts and tribunals and afforded equal protection under the law without discrimination.  In order for older persons to be able to use the tools and resources available in the justice system they must have real access to legal assistance and information regarding laws and adjudication procedures and courts and other institutions involved in the justice system must make procedural and physical accommodations to facilitate the effective role of older persons as direct or indirect participants in legal proceedings and as participants in the decision making processes relating to the administration of justice generally.  It is also essential that States ensure that those working in the justice system are provided with awareness-raising and training programs addressing the needs of older persons and establish effective and robust monitoring mechanisms of the actions taken to promote access to justice for older persons.  This book discusses the elements of effective access to justice and describes older persons' rights with respect to access to justice and the barriers they must overcome in order to realize and exercise their rights.  The chapter describes proposed normative frameworks for older persons' access to justice and discusses relevant issues related to civil justice for older persons, participation of older persons in the justice system and appropriate legal assistance.

• Language: English
• Publisher: Ageism Project
• Release date: Jul 15, 2021
• ISBN: 9798201434588

Alan S. Gutterman

This book was written by Alan S. Gutterman, whose prolific output of practical guidance for legal and financial professionals, entrepreneurs and investors has made him one of the best-selling individual authors in the global legal publishing marketplace.  His cornerstone work, Business Transactions Solution, is an online-only product available and featured on Thomson Reuters’ Westlaw, the world’s largest legal content platform, which includes almost 200 book-length modules covering the entire lifecycle of a business.  Alan has also authored or edited over 80 books on sustainable entrepreneurship, leadership and management, business transactions, international business and technology management for a number of publishers including Thomson Reuters, Practical Law, Kluwer, Oxford, Quorum, ABA Press, Aspen, Euromoney, Business Expert Press, Harvard Business Publishing and BNA.  Alan has extensive experience as a partner and senior counsel with internationally recognized law firms counseling small and large business enterprises in the areas of general corporate and securities matters, venture capital, mergers and acquisitions, international law and transactions and strategic business alliances, and has also held senior management positions with several technology-based businesses including service as the chief legal officer of a leading international distributor of IT products headquartered in Silicon Valley and as the chief operating officer of an emerging broadband media company.  He has been an adjunct faculty member at several colleges and universities, including Berkeley Law, Santa Clara University and the University of San Francisco, teaching classes on corporate finance, venture capital and law and economic development,  He has also launched and oversees projects relating to sustainable entrepreneurship and ageism.  He received his A.B., M.B.A., and J.D. from the University of California at Berkeley, a D.B.A. from Golden Gate University, and a Ph. D. from the University of Cambridge.  For more information about Alan and his activities, please contact him directly at [e-mail], follow him on LinkedIn (https://www.linkedin.com/in/alangutterman/) and visit his website at alangutterman.com.

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1

Introduction

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Access to justice is a core element of the rule of law.  Achieving effective access to justice such that older persons can realize the full benefits of the human and civil rights to which they are entitled on a nondiscriminatory basis requires that the justice system enable older persons to enforce their rights and obtain effective remedies and that older persons be treated equally before the courts and tribunals and afforded equal protection under the law without discrimination.  In order for older persons to be able to use the tools and resources available in the justice system they must have real access to legal assistance and information regarding laws and adjudication procedures and courts and other institutions involved in the justice system must make procedural and physical accommodations to facilitate the effective role of older persons as direct or indirect participants in legal proceedings and as participants in the decision making processes relating to administration of justice generally.  It is also essential that States ensure that those working in the justice system are provided with awareness-raising and training programs addressing the needs of older persons and establish effective and robust monitoring mechanisms of the actions taken to promote access to justice for older persons.  This work discusses the elements of effective access to justice and describes older persons’ rights with respect to access to justice and the barriers they must overcome in order to realize and exercise their rights.  The work describes proposed normative frameworks for older persons’ access to justice and discusses relevant issues related to civil justice for older persons, participation of older persons in the justice system and appropriate legal assistance.

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According to the Office of the UN High Commissioner for Human Rights (OHCHR), access to justice is a core element of the rule of law[1], which the UN Secretary-General has defined as a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.[2]  The OHCHR has further explained access to justice as follows[3]:

It is a fundamental right in itself and an essential prerequisite for the protection and promotion of all other human rights. Access to justice encompasses the right to a fair trial, including equal access to and equality before the courts, and seeking and obtaining just and timely remedies for rights violations. Guaranteeing access to justice is indispensable to democratic governance and the rule of law as well as to combat social and economic marginalization.  Access to justice enables and enhances other rights such as the right to health, as it guarantees judicial and administrative protection of that right.  Therefore access to justice can be understood and interpreted as a cross-cutting right, in line with other principles such as equal recognition before the law.

The UN Commission on Legal Empowerment of the Poor estimated in 2008 that four billion people were excluded from the rule of law and the Hague Institute for the Internationalization of Law estimated in 2012 that a majority of the people in the world (perhaps even as many as two-thirds) suffered from what Carmona and Donald described as access to justice gap.[4]  Carmona and Donald also said that the Hague Institute report found that [e]very year, one in every eight people on earth runs into a serious conflict that is hard to avoid: at home, at work, regarding land, about essential assets they bought, or with local authorities and that [a]bout half these people do not succeed in obtaining a fair, workable solution, although many of these problems could be addressed and solved with better access to justice.[5]

The World Justice Project (WJP), an international civil society organization founded in 2006 as a presidential initiative of the American Bar Association (ABA) to advance the rule of law around the world, has developed a Rule of Law Index (RLI) as an assessment tool that can be used to measure at the country level how the rule of law is experienced and perceived by the public across eight factors: Constraints on Government Powers; Absence of Corruption; Open Government; Fundamental Rights; Order and Security; Regulatory Enforcement; Civil Justice; and Criminal Justice.[6]  More than one-third of the questions included in the surveys used to compile the RLI are related to access to justice issues and the answers to these questions provided the basis for the creation of country-level access to justice profiles that cover the following areas: legal problems; legal capability; sources of help; problem status; process; and hardship.[7]  According to a report issued by the WJP in April 2019 regarding global access to justice at that time, 1.5 billion people could not obtain justice for everyday civil, administrative, or criminal justice problems; 4.5 billion people were excluded from the opportunities the law provides, such as employment and housing; 253 million people lived in extreme conditions of injustice; and 5.1 billion people, two-thirds of the world’s population, were being challenged by at least one these issues relating to access to justice.[8]

The lack of access justice deprives people of their ability to have their voices heard, exercise their rights, challenge discrimination or hold decision-makers in society accountable.[9]  In turn, when access to justice is provided in an effective manner, it optimizes the emancipatory and transformative potential of the law.[10]  The participants at the 1993 Vienna World Conference on Human Rights called on every state to provide an effective framework of remedies to redress human rights grievances or violations and declared that [t]he administration of justice, including law enforcement and prosecutorial agencies and, especially, an independent judiciary and legal profession in full conformity with applicable standards contained in international human rights instruments, are essential to the full and non-discriminatory realization of human rights and indispensable to the processes of democracy and sustainable development.[11]

Access to justice is an important part of the UN’s Sustainable Development Goals (SDGs), with SDG 16 including the provision of access to justice for all in order to promote peaceful and inclusive societies for sustainable development and Target 16.3 of the SDGs being [p]romote the rule of law at the national and international levels and ensure equal access to justice for all and the associated indicators being (i) proportion of victims of violence in the previous 12 months who reported their victimization to competent authorities or other officially recognized conflict resolution mechanisms; and (ii) unsentenced detainees as a proportion of overall prison population.[12]  It has been noted that the indicators endorsed for Target 16.3 focus on criminal justice, but that a growing body of literature shows that a majority of people’s legal problems are civil, rather than criminal problems, a conclusion that has led the UN Member States to agree that an indicator focused on access to civil justice should be incorporated into measurement of progress on Target 16.3.[13]

Access to justice has also been cited as an important condition to eradicating poverty.  Lima and Gomez noted that while poverty can be described as the lack of material goods and opportunities such as employment and ownership of productive assets and savings, it also includes the lack of intangible assets and social goods, such as legal identity, good health, physical integrity, freedom from fear and violence, organizational capacity, the ability to exert political influence, and the ability to claim rights and live in respect and dignity.[14]  They went on to argue that [a]ccess to justice as a human right is essential to address the origin of poverty and that [w]ithout access to justice, people living in poverty can neither claim nor exercise a wide range of human rights nor face the abuses or violations committed against them.[15]

Carmona and Donald described poverty as a multidimensional phenomenon that includes as one of its components chronic social, political and economic inequality and argued for a human rights approach to alleviating poverty that recognized that poverty is a human condition characterized by the sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other civil, cultural, economic, political and social rights.[16]  According to Carmona and Donald, combatting poverty not only requires improving income levels and access to housing, food, education, health services and water and sanitation, but also ensuring that those in poverty have access to the tools and resources of justice that can be deployed in order for them to enjoy their human rights and the protections of those rights afforded under the law including the ability to challenge crimes, abuses or violations committed against them.[17]

The United Nations Development Programme (UNDP) has stated that [a]ccess to justice is a basic human right as well as an indispensable means to combat poverty, prevent and resolve conflicts and noted that [l]ack of access to justice limits the effectiveness of poverty reduction and democratic governance programmes by limiting participation, transparency and accountability.[18]  In her 2012 report to the UN General Assembly, the Special Rapporteur on Extreme Poverty and Human Rights noted that eradication of extreme poverty not only requires improving access to housing, food, education, health services, water and sanitation, but also requires ensuring that persons living in poverty have the resources, capabilities, choices, security and power necessary to enjoy the whole spectrum of human rights[19] and then went on to explain[20]:

Access to justice is crucial for tackling the root causes of poverty, exclusion and vulnerability, for several reasons. First, owing to their vulnerability, persons living in poverty are more likely to fall victim to criminal or illegal acts, including sexual or economic exploitation, violence, torture and murder. Crime and illegality are also likely to have a great impact on their lives as it is hard for them to obtain redress and as a result they may fall further into poverty. Second, access to justice is important because justice systems can be tools to overcome deprivation, for example, by developing jurisprudence on social and economic rights. Third, when vulnerable persons cannot access justice systems, they are sometimes forced to take justice into their own hands through illegal or violent means, or to accept unjust settlements. Thus, fair and effective justice systems are an important way to tackle impunity and reduce violence and conflict. Fourth, the inability of the poor to pursue justice remedies through existing systems increases their vulnerability to poverty and violations of their rights. In turn, their increased vulnerability and exclusion further hamper their ability to use justice systems. This vicious circle impairs the enjoyment of several human rights.

According to Lima and Gomez, [p]eople living in poverty face serious obstacles to accessing justice systems, which include physical, social, and financial barriers and are also hindered by the lack of information about their rights and illiteracy or language barriers, together with the entrenched stigma associated with poverty which make it difficult for impoverished persons to defend their rights or face justice.[21]  People in poverty are a marginalized group and thus vulnerable to barriers to access to justice that include a lack of legal awareness (i.e., basic knowledge of the justice system), lack of access to legal services and diminished capacity to access judicial and quasi-judicial services.[22]

A 2017 report commissioned by the Legal Services Corporation found that 86% of the civil legal problems reported by low-income Americans in the year leading up to completion of the report received inadequate or no legal help, a significant issue given that 71% of low-income households experienced at least civil legal problem that year in a wide range of areas including domestic violence, veterans’ benefits, disability access, housing conditions and health care.[23]  The report also found that low-income Americans sought professional legal help for only 20% of the civil legal problems they encountered and that the top reasons for not seeking professional help included deciding to deal with a problem on one’s own, not knowing where to look for help or what resources might exist and not being sure whether their problem was legal (low-income Americans general considered custody issues and wills/estates to be obviously legal).  Significant findings related to the civil legal needs and experiences of the 6.4 million low-income seniors in the US included the following: 56% of their households experienced at least one legal problem (10% of their households experienced 6+ problems); the most common types of legal problems for this group were health, consumer and finance, income maintenance and wills/estates; low-income seniors sought professional help for 19% of their legal problems and received inadequate or no professional legal for an estimated 87% of all their problems; and the top reasons for not seeking legal help among low-income seniors were not knowing where to look or what resources were available, deciding to deal with the problem on their own, not having time and not being sure it was a legal issue.

2

What is Access to Justice?

Sage-Jacobson described the evolution of research on access to justice as moving through a series of thematic waves that began with focusing on equality of access to legal services, structural inequalities within the justice system, informal justice and preventing disputes from occurring and escalating and efficiency and competition to drive down the costs associated with the justice system.  She observed that each of these waves were based on universalist ideals and focused on levelling the playing field by recognizing the impact of social disadvantage on access to existing justice system institutions and removing the barriers to these services. [24]  She also noted the emergence of a new fifth wave of research and reform activities relating to access to justice that shifted attention away from normative notions of substantive justice within the community to identifying and analyzing what the community actually wants from the justice system and what they need in order to claim and protect their rights—in other words, understanding not only who should have access but also which justice should be prioritized in order to fulfill the actual legal needs in the community. [25]  Sage-Jacobson cautioned that legal needs was a complex issue that should not be limited only to considering what the community believes that it wants.

Byrnes et al. described access to justice, also sometimes referred to as the right to access justice, as a cross-cutting right that must be understood and interpreted in line with other principles such as equal recognition before the law and which enables and enhances other rights such as the right to health as it guarantees judicial and administrative protection of that right.[26]  They also noted that access to justice often includes the concept of legal needs, but pointing out that while the concepts are related they are different because persons do not need legal services in and of themselves but may have a need for such services in order to achieve the ends those services can bring about (e.g., specific legal remedies, reconciliation with another party or achievement of a sense of fairness or closure relating to a dispute).[27]

The United Nations Development Programme (UNDP) defined access to justice as [t]he ability of people to seek and obtain a remedy through formal or informal institutions of justice, and in conformity with human rights standards and noted that access to justice is much more than improving an individual’s access to courts, or guaranteeing legal representation ... [and] ... must be defined in terms of ensuring that legal and judicial outcomes are just and equitable.[28]  The UNDP is among the many who have called for viewing access to justice from a human rights-based perspective and describing it as the ability of people from disadvantaged groups to prevent and overcome human poverty by seeking and obtaining a remedy, through formal and informal justice systems, for grievances in accordance with human rights principles and standards.[29]  A human rights-based approach to access to justice incorporates the following elements: (a) focusing on the immediate, as well as underlying causes of the problem, which in the case of access to justice might include factors such as a lack of safeguards to access or insufficient mechanisms that uphold justice for all under any circumstances; (b) identifying the claim holders or