Access to Justice – A sociological study on cases of discrimination in the EU

The project reviewed obstacles and opportunities for people in gaining access to equality bodies or similar entities in order to lodge a complaint about (perceived) discrimination. The research focused on eight EU Member States: Austria, Belgium, Bulgaria, the Czech Republic, Finland, France, Italy and the United Kingdom. Interviews were held in these Member States with complainants, people who eventually decided not to lodge a complaint, lawyers/ support organisations and representatives of equality bodies. Together with the desk study, the interviews formed the basis for the final report to the FRA, which highlights areas for improvement and proposes concrete measures to make these improvements.

Aim

The main aim of the study was to provide insights into obstacles to gaining access to justice through equality bodies or similar entities in cases of discrimination. A second aim was to explore what incentives exist to encourage potential complainants to try to access justice when they feel discriminated against.

Project

For the purpose of the study, access to justice in cases of discrimination was grouped into four themes:

• access to a dispute resolution body (an equality body, a court or an administrative / judicial institution similar to an equality body ('similar entity');
• issues relating to procedures;
• access to legal advice and assistance and personal, emotional and moral support, as well as accommodation of diversity;
• measures to secure legal certainty and to stimulate a culture of rights. 

The project reviewed access to justice in cases of discrimination across the EU by researching eight EU Member States: Austria, Belgium, Bul­garia, the Czech Republic, Finland, France, Italy and the United Kingdom.

The selection of countries represented a geographical spread, with a range of different systems of access to justice in cases of discrimination, and diversity in terms of the history, structure, scale and mandate of the main institutions involved in the systems. Thus the findings are relevant beyond the eight countries studied.

For the purpose of the study, interviews were conducted in the eight Member States, looking at the experiences and views of access to justice in cases of discrimination with four different categories of respondents: people who experienced discrimination and decided to lodge a complaint (complainants – 213 interviews) or decided not to lodge a complaint (non-complainants – 28 interviews), intermediaries (professionals or organisations providing advice and assistance – 95 interviews) and representatives of equality bodies (35 interviews). 

The experiences and views of these particular groups of respondents provided significant insights into access to justice in cases of discrimination not only in the countries included in the project, but also for access to justice in general in relation to the implementation of the EU non-discrimination directives (2000/43/EC (Racial Equality Directive), 2000/78/EC (Employment Equality Directive), 2004/113/EC (Gender Goods and Services Directive),  Directive 2006/54/EC (Gender Employment and Occupation Directive – recast)).

Report(s) / events

Activities, reports and events within the framework of the project included:

• Literature reviews for each of the eight selected Member States and a synthesis report of the literature reviews.
• Interview transcripts, country by country reports of the findings and a comprehensive report synthesising the findings of the interviews and desk studies with over 100 tables in the annex.
• Country fiches in a format allowing for comparison between the countries, covering the four access to justice.
• Two peer review meetings with representatives of the equality body, other stakeholders and the researchers, once at the start and again towards the end of the project. 

The project reports have not been published as stand-alone publications, but formed the basis of the 2012 FRA publication for this project, Access to justice in cases of discrimination in the EU – steps for further equality [link report http://fra.europa.eu/en/publication/2012/access-justice-cases-discrimination-eu-steps-further-equality ]

Main findings

The main obstacle for complainants was which institution(s) to address as the entry point. Legal advice on navigating the justice system prior to lodging a complaint was an important factor in enabling access to the justice system.

Other obstacles were the lack of equality of arms, inadequate application of the shift of the burden of proof, lack of protection for complainants and witnesses from victimisation and distrust in the justice system and its institutions. Provision of (free) good-quality legal advice, right of access to information, the shift of the burden of proof, protection against victimisation, and sufficient powers of investigation for equality bodies and similar entities make access easier.

The length of the procedure itself and lack of information about its possible length often made complainants decide not to lodge a complaint. To avoid this, improvements need to be made, such as simplified procedures, adequate resources and information at an early stage about the length of the procedure.

Respondents wanted remedies to include reinstatement of the situation which existed prior to the discrimination and to go beyond mere (often low) financial compensation.

Most respondents said that all forms of support (legal, emotional, personal or moral) suffered from a lack of human, financial and time resources. Finally, respondents felt that legal certainty would benefit from allowing for class action, strategic litigation and publication of case law.