A/HRC/23/35
D.
Procedural barriers
78.
Courts and even adjudicative bodies may at times insist on the formality of
their procedures, severely disadvantaging anyone without legal representation.
Procedures to bring claims must be simplified for unrepresented claimants, and kept
as informal as possible for quasi-judicial institutions. Rules with respect to legal
standing to bring a claim should allow not just a child and their parents, but also
third parties to bring a claim based on the alleged violation, in order to ensure that
cultural constraints, or threats against the victims, do not prevent cases from
emerging.
E.
Litigation costs and legal assistance
79.
Fees to file complaints, however minor, have the effe ct of deterring claimants.
This effect is more pronounced on the poor, who in turn are often those most affected
by violations. Quasi-judicial mechanisms should never require payment to bring a
claim, and subsidies for court proceedings should be available on a needs-based
assessment.
80.
The complexity of legal procedures in any court requires legal advice. States
seeking to ensure citizens are able to defend their right to education should provide
competent legal aid in civil courts, on a needs-tested basis, to ensure this basic
human right is defended.
XII. Conclusions and recommendations
81.
International, regional and national jurisprudence has demonstrated that
the right to education is a legally enforceable right. In case of its violation, it can
be protected and enforced through adjudicative mechanisms. These are
invaluable for allowing citizens to address violations of their rights in a fair and
impartial manner. Its justiciability should be publicly acknowledged, and
reaffirmed by governments in the constitution and domestic legislation.
82.
Bearing in mind the key importance of the justiciability of the right to
education and its enforcement, and with a view to fostering protective as well as
promotional role of adjudication mechanisms, the Special Rapporteur would
like to offer the following recommendations:
Legislating the right to education
(a)
States must fully assume their obligation to respect, protect and
fulfil the right to education. Their first obligation in this regard is to give effect
to the right in their domestic legal order, and ensure its effective enforcement in
case of violation through national, regional and international judicial and quasijudicial mechanisms. Individuals as beneficiaries of the right to education, as
defined in national legislation and as contained in international law, must be
able to have legal recourse against its violations.
(b)
The right to education should be provided the broadest and
strongest legal protection possible. States with a dualist legal tradition should
ensure their constitutions and national legislation are amended to directly
provide for the right to education. This is important, as constitutional
protections cannot be ignored by courts, quasi-judicial mechanisms or even
governments unwilling to address violations of the right.
20
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