Access to Justice and Judicial Independence: Is There a Role for the EU?

Abstract

THE MODERN CONCEPT of ‘access to justice’ has undergone a number of fundamental transformations during recent decades to include sometimes quite diverging political principles, social objectives and organisational considerations. One must not forget, however, that the roots of the notion can be traced back to a fundamentally identical constitutional guarantee even though the formulation of the guarantee has been quite different in a number of legal systems. In common law countries, access to justice has grown out of the rule of law concept with the central idea of courts and judges being established by law. The German Basic Law of 1949 provides for the ‘right to a natural judge’ which is very close in meaning to a court and judge established by law with the tacit understanding that being established by law they also must be independent and impartial. Even the laconic wording of Article 66 of the French Constitution of 1958 on the obligation of civil and criminal courts to protect individual liberty has been interpreted in a way to favour access to justice.