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Abstract

The right of access to a court is recognized as a fundamental component of the right to a fair trial under Article 6(1) of the European Convention on Human Rights (“ECHR”) and has emerged as a cornerstone of the European human rights system. Initially conceived as an implicit guarantee, the right has been progressively shaped by the jurisprudence of the European Court of Human Rights (“ECtHR”) and further developed through the practice of constitutional courts across Europe. This article examines the evolution of the right of access to courts, focusing on its scope, permissible limitations, and relationship to the broader principle of access to justice. Through an analysis of leading ECtHR judgments—from Golder v. United Kingdom to Zubac v. Croatia—the article demonstrates how the ECtHR has refined the contours of the right by applying doctrines such as the “very essence” test and proportionality review to balance individual rights against legitimate public interests. Special attention is given to procedural barriers, immunities, waiver, and legal aid, each of which illustrates the tension between regulating judicial processes and preserving meaningful access to justice. The article also engages with comparative constitutional jurisprudence, including the jurisprudence of Germany and Bosnia and Herzegovina, to highlight how domestic courts have adapted Strasbourg principles within their own legal systems. This comparative perspective reveals both convergences and divergences, illuminating the role of constitutional courts as guardians of judicial protection and contributors to a broader European dialogue on human rights. By situating the right of access to a court within the broader framework of access to justice, the Article argues that effective human rights protection ultimately depends on ensuring that justice remains practical, attainable, and enforceable, rather than merely theoretical or formal.

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