PRECONDITIONS FOR ACCESS TO COURT – LEGAL VIEWS AND CASE-LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS

Abstract

In its case-law, the European Court of Human Rights has usually protected the right of access to court because of unacceptable legal stands taken by the courts of the contracting states. Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, which guarantees the “right to a hearing” in paragraph 1, does not explicitly lay down the right of access to court; however, the European Court derived this right deeming that the right of access to court is a precondition for all the other guarantees provided in Article 6(1) of the Convention. The paper analyses the legal views and case-law of the European Court with respect to preconditions for access to court. After first determining the scope of this right, the paper continues by examining the procedural preconditions for access to court, such as admissibility to bring an action, admissibility of recourse to legal remedies and the role of courts in the domestic legal order of contracting states. It also shows the development of the relationship between the right of access to court and particular categories of civil servants, including the relationship between state immunity and the right of access to court.