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this context for judicial officials can not only through their judgements, stimulate public policies
favouring the groups concerned but also provide the means to guarantee the implementation of
those policies.55
47. The inter-American system56 has established the following standards and principles that
should guide the judicial protection of economic, social and cultural rights:
(a) States’ obligations to remove economic and financial obstacles in order to guarantee
access to the courts. The criteria for granting free legal aid include the resources available to
those affected, the complexity of the case (for example, constitutional challenges) and the
importance of the rights affected;
(b) The applicability of the rules of due process to administrative proceedings relating to
these rights. Judicial remedies to review administrative decisions must be not only prompt and
effective but also inexpensive or affordable. Components of due process in this area include the
principle of equality of arms, in view of the glaring inequality usually found between the parties
in this type of litigation (workers and employers; beneficiaries and providing State), as well as
other guarantees in addition to those prescribed in international instruments, in order to correct or
compensate for any real disadvantages with regard to a fair trial, the principle of equality before
the law or the prohibition of discrimination;
(c) The right to a reasoned decision on the merits of the matter, within a reasonable time,
and the criteria for determining what is reasonable, i.e., the complexity of the matter, the judicial
activity of the interested party, the behaviour of the judicial authorities, the purpose of the
proceeding and the nature of the rights at issue. Moreover, the time should be counted from the
start of the administrative proceedings and not when the case reaches the judicial stage, and
should include judgement enforcement proceedings;
(d) The components of the right to effective judicial protection for this category of
rights, in both their individual and their collective dimension. Without prejudice to a more
prolonged analysis of the merits of a case, provision should be made for procedural measures
that allow for immediate - and even precautionary or preventive - protection of social rights.
These measures should consist of remedies that are simple, urgent, informal, accessible, with low
evidentiary requirements and which are processed by independent bodies as individual or
collective actions (which implies a broad, active legitimacy);
(e) The right to effective judicial protection. This requires compliance with court
decisions, whether precautionary or final, since execution of such decisions is an integral part of
this right. This is particularly important given that it is generally State entities that are
responsible for enforcing judgements, and they usually enjoy procedural privileges, such as
55
V. Abramovich, “Acceso a justicia y nuevas formas de participación en la esfera pública”,
Acceso a la justicia como garantía de igualdad, Buenos Aires: Ed. Biblos, 2006, p. 66.
56
Estudio sobre el acceso a la justicia como garantía de los derechos económicos, sociales y
culturales, OEA/Ser.L/II. 129, Doc. 4 de septiembre de 2007.
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