The right of access to court is a component of the right to a fair trial, embodied in Article 6 of the European Convention on Human Rights (ECHR).

The text of the ECHR does not expressly stipulate the right of access to court. However, in a line of judgements, the European Court of Human Rights (EctHR) has held that this right is secured by Article 6 of the ECHR. In the case of Golder v. UK the EctHR concluded that Article 6 "secures to everyone the right to have any claim related to his civil rights and obligations brought before a court or tribunal." In this case the EctHR stated that it would be inconceivable to allow for the situation where Article 6 (1) were “to describe in detail the procedural guarantees afforded to parties in a pending lawsuit and should not first protect that which alone makes it in fact possible to benefit from such guarantees, that is access to court.” 

An overarching principle, in the interpretation of the entire ECHR is that the ECHR guarantees "rights that are practical and effective and not theoretical and illusory" and therefore under Article 6(1), States are obliged to secure to everybody an effective right to access to court. Legal or factual limitations of this right may be found to be in violation of the ECHR if they inhibit the applicant's effective right to access the court.  

The right to access to court however, is not an absolute right and some limitations of this right may be in line with the ECHR if they pursue a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.

In the civil law context, the potential factual limitations of the right of access to court include, excessive court fees as found by the EctHR in Kreuz v. Poland (2001), in which case the State authorities refused to grant an exemption from court fees amounting to the national annual salary. The EctHR found that the interests of the State in collecting court fees, had not been balanced properly against the interests of the applicant in accessing the court and justice and that therefore, a waiver of the fees should have been granted. In other cases of limitation of the right of access to court, the EctHR has found that the State is under the obligation to take positive steps in assuring such access, and in the absence of such steps, may be found to be in violation of Article 6 ECHR. The case of Airey v. Ireland (1979) turned on this very point, wherein the EctHR found that although the ECHR does not expressly provide for a right to free legal assistance in civil cases, Article 6 may nevertheless require States to provide free legal assistance when it proves indispensable for securing the effective access to court either because legal representation is mandatory under the domestic law or because of the complexity of the procedure or the case itself.

Within the jurisdiction of criminal law however, the ECHR provides specific rights for persons charged with criminal offences. The right of access to courts and access to justice are also articulated in Article 5 (3) of the ECHR, which states that anyone arrested or detained in accordance with the provision of the article, must be brought promptly before a judicial authority, and entitled to a trial within a reasonable time, failing which, such person must be released.

Article 6(3) of the ECHR, guarantees free legal assistance and access to court for defendants in criminal proceedings. The right to free legal assistance applies to the entire proceedings, including the pre-trial proceedings, the trial stage, the appellate proceedings and the cassation proceedings (where applicable) [see: Croissant v. Germany (1992)].

The provision of Article 6(3) is premised upon two criterions. The financial criterion reads that free legal assistance is provided, if the defendant has “no sufficient means”, which has been interpreted by the EctHR as the case where a defendant is unable to retain a lawyer independently. In meeting this criterion, the burden of proof lies with the defendant. The substantive criterion requires the defendant to receive free legal assistance if “the interests of justice so require”. In determining the existence of this criterion the EctHR considers a number of factors, namely; the complexity of the case (fact and law), the capacity of the defendant to understand the case, the ability of the indigent to defend him or herself in person and most importantly, the gravity of the accusation and severity of the sentence if the indigent is found guilty. The judgments which have served to shape these principles may be found in the cases of Quaranta v. Switzerland (1991) and Benham v. UK (1996).

Where the criterions (financial and substantive) have been met, the State is obliged under the ECHR to provide free legal assistance, and the question of whether the absence of such assistance has served to prejudice the case at point is irrelevant to the finding of a violation of Article 6 (3) of the ECHR. It is however, important to note that as stated by the EctHR in the case of Artico v. Italy (1980), the State may not be held responsible for every shortcoming in the quality of the legal representation afforded; however, the State is required to ensure that the right to free legal assistance is effective.

The jurisprudence of the EctHR displays an interpretation of the ECHR which seeks to guarantee access to the courts and access to justice for all, including those in a financially less favourable position. Simultaneously, the Committee of Ministers of the Council of Europe has passed a number of resolutions and made numerous recommendations since as early as 1976, which have the aim of introducing and recommending measures to accelerate and simplify the operation of the criminal and civil justice systems, with the aim of making justice more accessible to all citizens of Council of Europe Member States.

For matters of civil law, the European Agreement on the Transmission of Applications for Legal Aid (1977) has come into force as well as more recently, the Additional Protocol to the European Agreement on the Transmission of Applications for Legal Aid (2001).

For matters of criminal law recommendations and resolutions such as, Recommendation (87)18 and Recommendation (95)12 aim at introducing measures which would create more efficient and therefore, more accessible justice.

Additionally, Recommendation (93)1 proposes to Member States the adoption of measures to facilitate effective access to the law and to justice for the poor by “extending legal aid or any other form of assistance to all judicial instances (civil, criminal, commercial, administrative, social, etc.) and to all proceedings, contentious or non-contentious, irrespective of the capacity in which the persons concerned act.”

The provision of free legal assistance in a case before the EctHR itself is regulated by Chapter X (ten) of the Rules of the Court (2002). Rule 91 of the Rules, stipulates that “the President of the Chamber may, either at the request of an applicant having lodged an application under Article 34 of the Convention or of his or her own motion, grant free legal aid to the applicant in connection with the presentation of the case from the moment when observations in writing on the admissibility of that application are received from the respondent Contracting Party…”