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5.5 Procedural fairness and due process of law

The guarantees of procedural fairness and due process of law are important elements of the right to equality before courts and tribunals and to a fair trial, which is guaranteed in international human right law.[254] Realization of this right requires that the administration of justice is able to guarantee a set of specific rights and that it can ensure that no one will be deprive, in procedural terms, of the right to claim justice.[255] In particular, this right encompasses, among other things, the guarantee of equality of arms and of non-discrimination between the parties to the proceedings.[256]

At the domestic level, the constitutional guarantees of due process of law and of procedural fairness are discharged by judicial and quasi-judicial bodies in a variety of cases and proceedings. As such, they are important to the protection of ESC rights or at least elements of these rights.[257]

Joseph v. City of Johannesburg, Case CCT 43/09

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  1. 254. In particular, this right is guaranteed at article 14 of the International Covenant on Civil and Political Rights.
  2. 255. Human Rights Committee, General Comment No. 32, UN Doc. CCPR/C/GC/32 (2007), para. 2
    The right to equality before the courts and tribunals and to a fair trial is a key element of human rights protection and serves as a procedural means to safeguard the rule of law. Article 14 of the Covenant aims at ensuring the proper administration of justice, and to this end guarantees a series of specific rights.
    Article 14 encompasses the right of access to the courts in cases of determination of criminal charges and rights and obligations in a suit at law. Access to administration of justice must effectively be guaranteed in all such cases to ensure that no individual is deprived, in procedural terms, of his/her right to claim justice. The right of access to courts and tribunals and equality before them is not limited to citizens of States parties, but must also be available to all individuals, regardless of nationality or statelessness, or whatever their status, whether asylum seekers, refugees, migrant workers, unaccompanied children or other persons, who may find themselves in the territory or subject to the jurisdiction of the State party. A situation in which an individual’s attempts to access the competent courts or tribunals are systematically frustrated de jure or de facto runs counter to the guarantee of article 14, paragraph 1, first sentence.7 This guarantee also prohibits any distinctions regarding access to courts and tribunals that are not based on law and cannot be justified on objective and reasonable grounds. The guarantee is violated if certain persons are barred from bringing suit against any other persons such as by reason of their race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.8
  3. 256. Human Rights Committee, General Comment No. 32, UN Doc. CCPR/C/GC/32 (2007), [/expand title="para. 8"]The right to equality before courts and tribunals, in general terms, guarantees, in addition to the principles mentioned in the second sentence of Article 14, paragraph 1, those of equal access and equality of arms, and ensures that the parties to the proceedings in question are treated without any discrimination.[/expand]
  4. 257. For a more detailed account of the use of procedural guarantees including fair trial rights, in ESC rights litigation at domestic and international, see ICJ Justiciability Study, pp. 61-64.