The influence of the judge's gender competence on ensuring the equal access to justice

Abstract

Access to justice which is the necessary elements of the Rule of Law as well as Rechtsstaat enables individuals to effectively protect themselves against infringements of their rights. Since the modern international standards which the national judicial system must meet include not only independence, impartiality, competence and efficiency, but also gender sensitivity, therefore the gender competence of judges is not just the demands of the times or a fashionable trend, but primarily a guarantee of the equal access to justice.
 Based on the specifics of the functions performed by a judge the article reveals the types of the judge’s gender competence such as expert, method and social competence. Also the author identified five core gender competencies for judges, which are: 1) interacting and communicating with the parties/participants of the process in an appropriate manner (without gender bias); 2) applying procedural legislation to the specific needs of participants in the process, taking into account the circumstances of the case (including the principle of gender equality); 3) searching for and interpreting the rules of substantive law through the use of national and international case law and legal instruments relating to gender equality and prevention of sex- and gender-based discrimination; 4) taking action to effectively protect the rights and legitimate interests of the individual, considering gender aspect; 5) drafting a judgement (judicial opinion writing) in compliance with the principles of gender equality and non-discrimination. Accordingly, in each of the competencies, the necessary knowledge, skills and qualities (values, attitude) of a judge have been identified, corresponding to the three components of the structure of gender competence – cognitive, activities-related and encompassing values and attitudes.
 On the basis of analysis of the ECtHR case law some examples of violations by national courts of the requirements of the rule of law regarding access to justice are shown, and it is concluded that quite a few violations of the Convention on the Protection of Human Rights and Fundamental Freedoms could be avoided in a wide range of cases if judges possessed a sufficient level of gender competence, in particular, if they were able to recognize gender-sensitive situations when considering different categories of cases and react appropriately to them. Therefore, the acquisition of gender competences by judges, in particular through training, will contribute to ensuring the equal access to justice, which is one of the strategic objectives of the Council of Europe.