Unfortunately, social minorities, as vulnerable sections of the population, often face the greatest barriers when struggling to uphold their rights through judicial mechanisms. In this essay I shall first clarify what the right to justice incorporates and what the concept of ‘social minorities’ embodies in actuality.
Consequently, I shall try to balance the real and the mythological in the international community’s current strive in defending the social minorities’ prerogative to justice. Finally, I shall look at the most frequent issues connected to the constant infringements of the equal right to justice for minorities.
In order to evaluate whether social minorities throughout the world enjoy a tangible right to justice, I must first establish what the right to justice should entail and which social minorities are in the most vulnerable positions. The right to justice in the narrow sense of the term can be coextensive with access to the courts, while in the wider connotation it embraces access to the political order and the benefits ensuing from the social and economic developments in the state (Okogbule, 2005).
If it can be easily established that a cohesive right to justice means much more than a mere access to the courts, it is not so easy to determine what the concrete content of the generic term ‘social minorities’ is, as the answer will differ from country to country, or from region to region. For example, if this question were to be posed to someone who lives in the UK, Germany or another European country with a high rate of immigration – the answer might be precisely a specific community of immigrants. But, if the same question was asked in Kosovo, the answer might be connected to the ethnic Serbian minority.
This precise simultaneous existence of different social minorities that pose different problems, which actually change from era to era, lies at the very core of the potential infringement of their prerogative to justice. As Vrdjolak (2008) has noticed, ’from the 1648 Treaty of Westphalia to the present-day efforts to resolve the fate of Kosovo, the community of states have continually been preoccupied with minorities’. Moreover, this is also the reason why we must look at the international community for a correct and unified effort of ensuring its enforcement. As the same author also observes, ’minority groups cannot simply look to the state for alleviation of discrimination and persecution. Experience has shown that such acts are often perpetrated by state organs’.
So, after establishing this set of semantic and juridical demarcations, the question of this article appears more clearly. Is the international community efficient, in the troubled modern times, with ensuring the implementation of the right to justice for all minorities across the globe?
Undoubtedly, nowadays, key international actors are making efforts in ensuring the protection of an equal access to justice for all social categories. Whether they are displayed in the exceptional cases of UN peacekeeping operations or in the more common EU practice pertaining to this matter, the international community is assiduously addressing this issue.
The ‘mythical’ side of this unified effort might appear in territories where at some point in time or even currently, due to some political interests, this proactive, protectionist endeavour has lacked throughout. For example, the inter-war agreements between Germany and Poland covering Upper Silesia that did not provide standing to minorities or their members the enforcement of their rights or remedies for any violations. There are times when the only thing that international entities that defend human rights can do, is merely to report and highlight the existences of an issue, a direct intervention being unviable. We are making reference, for example, to the situation in eastern Ukraine where a large ethnic Russian minority resides and whose violation of its rights to ’property ownership, wages and pensions, health service, labour rights, education and access to justice’ is the current concern of the UN High Commissioner for Human Rights Navi Pillay (UN Human Rights Report, April 15, 2014).
Moreover, in many cases, discovering accessible solutions to issues that heavily impact upon the effectiveness of justice is a challenging task. This is also because, sometimes, the correct nature of the concrete obstructions to an equal access to justice is underestimated and ignored. Let us analyse the apparent unchallenging linguistic difficulties that immigrants may face and that might have a negative effect on the understanding of laws and their legal rights. For example, immigrants who want to conclude credit contracts may not be able ‘to fully understand and appreciate their terms and conditions, and thus risk being victims of economic fraud and pay beyond the odds or over-committing’. These types of subtle, apparently minor obstacles are the ones which might fall ‘out of the radar’ of the international community and might elude even the authorities of a state which is repeatedly confronted with them (Bello, 2011).
On the other hand, in some cases, even if a particular issue is visible to all the important authorities of a certain state as well to all the relevant international actors, the problem at hand might be so deeply sewn in the social layers of a state that it can be very hard to be dealt with, transforming an equal access to justice for minorities into a mere illusion. I am referring, for example, to the unsatisfactory treatment of minorities in the American criminal justice system. In this particular case, disparate treatment of minorities ‘begins at the very first stage of the criminal justice system: the investigation of suspected criminal activity by law enforcement officials’ (Dunnaville, 2000). As a result, innocent minority citizens are detained by the police far more often than the majority of the population. This is a perennial issue of the last decades for the American judicial system and it might never be completely eradicated.
As I have foreshadowed at the beginning of this article, a way in which all these specific, state-related issues can be addressed in a more successful manner is through the use of international and regional mechanism. For example, even though Europe has perhaps the most developed articulation of minority rights, there is no doubt about the necessity of proactive regional human rights structures. A very good illustration of such a human rights actor is the European Court of Human Rights, which has at the core of its activity the Council of Europe’s European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) - the first legally binding multilateral human rights agreement. And even though the Convention does not refer to minorities specifically, it does prohibit discrimination on various grounds and can be efficiently used as a way of enforcing the minorities’ right to justice or correcting the mishaps that might appear in the process.
To conclude, we should be neither exceedingly optimistic, nor exceedingly pessimistic when it comes to the current protection of the right to justice for social minorities. This multifaceted topic is as complex as all the social factors that underlie it. From linguistic barriers, to being more likely detained on a street during night-time in a problematic ‘barrio’ (neighbourhood in Spanish), the right of social minorities to justice incorporates many hard to solve problems. The prerogative we have analysed is neither a concrete reality, nor a myth, but closer to a myth striving to become a reality.