10 - Access to Justice

Summary

Chapter 10 accounts for requirements of access to justice arising from Article 13, most notably the powers and competences the national autority needs to have, the procedural safeguards that must be provided, the prospect of success which the remedy needs to offer and the speed in which the remedial task must be performed. Most importantly, the chapter accounts for the required scope of domestic review, which, possibly, is the most important practical requirement stemming from Article 13. In early case law, the requirement was negatively delimeted in two aspects. First, the Convention must not be incorporated into domestic law. Second, Article 13 grants no right to challenge primary legislation, as such. This latter delimitation is criticized, and it is argued that the Court should positively require that the domstice remedial authority has the power to correct mistakes stemming from, also, primary legislation. The chapter, then, analyzes the domestic review that the national authority must perform and explains how the Court now requires the legal starting points to be more similar to those applied by the Court and how the concrete scrutiny must be more rigorous.