Access to Law and Justice Perceived by Foreign and Roma Prisoners

• Author: Sílvia Gomes
• DOI: 10.1177/2153368717699972
• Published date: 01 July 2019
• Date: 01 July 2019
• Subject Matter: Articles

Article
Race and Justice
2019, Vol. 9(3) 359-379
Access to Law and Justice
ª The Author(s) 2017
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Perceived by Foreign
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DOI: 10.1177/2153368717699972
and Roma Prisoners
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Sı´lvia Gomes1,2
Abstract
Several studies have promoted discussion on the conditions surrounding access to law
and justice in contemporary societies. With the knowledge that different social groups
have different perceptions of litigation and different levels of tolerance regarding “unjust”
situations, this article gives voice to particular vulnerable social groups and focuses on
some of the mechanisms reproducing social inequalities in the access to law and justice.
Based on the qualitative thematic content analysis of 68 foreign and Roma prisoners’
interviews in Portuguese prisons, we present and discuss the main difficulties and
obstacles these individuals experienced during their trajectories within the criminal justice
system as well as the perceptions they have about justice. Through the discussion of
foreign and Roma prisoners’ experiences and perceptions of the criminal justice system, it
is considered that not only class but also nationality and ethnicity are important variables
for the understanding and co-explanation of the law and justice system, which affects both
the access to the various stages of the justice process and the general views on justice.
Keywords
access to law and justice, ethnicity, perceptions of justice
Access to Law and Justice: Class, Gender, and
Nationality/Ethnicity as Key Variables
Justice, law, and human rights are fundamental conditions for economic and social
development (Puymbroeck, 2001). Nonetheless, this development is being continuously
1 Interdisciplinary Centre of Social Sciences, University of Minho, Braga, Portugal
2 Research Unit in Criminology and Behavioral Sciences, University Institute of Maia, Maia, Portugal
Corresponding Author:
Sı´lvia Gomes, Centro Interdisciplinar de Cieˆncias Sociais, Universidade do Minho, Campus de Gualtar,
4710-057 Braga, Portugal.
Emails: silvia.mf23@gmail.com; silvia.gomes@ics.uminho.pt

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compromised, and the “universal principle” of equal justice for everyone is being
questioned in its practice (Johnson, 2000). Several studies have demonstrated the real
conditions governing access to law and justice in contemporary societies as representing
effective obstacles and barriers, especially in certain vulnerable social groups.
In the words of Cappelletti and Garth (1978), access to law and justice refers to two
main objectives of the legal and judicial system. The first is that it should be accessible to
all citizens; regardless of their social class, gender, race, ethnicity, religion, and sexual
orientation, no one can or should be denied the application of justice. A second objective
is that it has to generate socially just outcomes. European and Portuguese legislation
follows precisely these two concepts. Article 47, falling under the “Justice” chapter of the
Charter of Fundamental Rights of the European Union, guarantees the right to effective
access to justice for all. In Portugal, pursuant to Article 20 of the Constitution of the
Portuguese Republic (1976), everyone has to have access to the courts in order to defend
their rights, and justice cannot be denied based on insufficient economic income.
However, when the justice system is analyzed nationally and internationally, we
come across deep social inequalities in the access to justice, with prevailing economic,
social, and cultural barriers (Duarte, 2007; FRA, 2011; Pedroso, Dias, & Trinca˜o,
2002) as well as operational and structural problems (Abregu´, 2001). Social justice
studies show that citizens in the most vulnerable situations are generally less capable
of accessing justice, revealing a deficient level of knowledge of their rights and,
consequently, greater difficulty in recognizing a situation as representing the violation
of a vested right (Pedroso, Dias, & Trinca˜o, 2002).
These vulnerabilities can be addressed considering different key variables. Tradi-
tionally, social class is the most common variable in literature, closely related to the
economic barriers that individuals from lower classes generally face in their access to
justice. In relation to this, Nash (2013) states that finance has historically been the key
hindrance to individuals’ accessing justice. However, besides economic barriers, there
are other barriers these individuals face. Caplowitz (1963) has concluded, for example,
that the lower the social class of the consumer, the greater the probability that he or she
is unaware of his or her rights in when purchasing a defective product. Abregu´ (2001)
also argues the existence of a lack of awareness of the right to demand basic rights; most
vulnerable groups do not even know that they have a right to lay claim to their rights.
Further, even when these vulnerable citizens recognize the violation or suppression of a
human right, there is a set of social obstacles that prevents them from resorting to legal
action (Pedroso, Dias, & Trinca˜o, 2002), thus preferring to opt for inaction (Abregu´,
2001) or unofficial mechanisms of dispute resolution (Duarte, 2007; Santos et al., 1996).
Data show that individuals from the lower classes hesitate much more to turn to the
courts, even when they recognize that they are facing a legal problem (Pedroso, Dias, &
Trinca˜o, 2002). Furthermore, it appears that recognition of the legal issue and the desire
to go to court to resolve it are not sufficient for a real initiative. The lower your income,
the less likely you know a lawyer or have friends who know lawyers, the less likely you
know where, how, and when to contact the lawyer, and the greater the geographical
distance between the place where you live or work and the area of the city where the law
firms and the courts are (Santos et al., 1996, pp. 503–684).

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Gomes
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Recognizing that poor individuals have unequal access to justice, Abregu´ (2001)
attempts to identify the obstacles these individuals face. He suggests the distinction
between “operational problems” and “structural problems,” with the first ones related
to the administrative efficiency and effectiveness of the justice system, and the second
ones integrated in the very nature and organization of the judiciary system. The
structural problems have to do with the basic forms of societal organization, and
therefore, they exist prior to the judicial response but are inherently linked to the
administration of justice (Abregu´, 2001, pp. 57–59). Therefore, if we have social
inequalities existing in general society, cutting across all institutions, including those
of the criminal justice system, this will largely influence the practice of agents
working within these discriminatory contexts and will directly influence the effective
access of the more vulnerable groups to law and justice.
Hence, besides considering social class as a key variable in the access to justice
analysis, it is also essential to reflect on other elementary variables in the study of
social inequalities, namely, gender (Carpio, 2001; Espinoza, 1999) and ethnicity and
nationality (Gomes, 2011, 2014; Machado & Santos, 2011).
Considering nationality and class as important variables of analysis in the access to
justice in the Portuguese context, Amorim (2011) analyzes the differences between
national and foreign groups in court. She concludes that foreign as well as all national
individuals belonging to the most disadvantaged sections of the population are the
ones with less access to justice. The individual’s disadvantaged social class is a factor
that can negatively influence criminal treatment, and therefore, limited resources—
including the means to pay for access to justice and a quality defense—operate not
only to the detriment of foreigners but to all individuals who come from disadvantaged
socioeconomic positions (Amorim, 2011, pp. 121–122).
Knowing that different social groups have different perceptions of litigation and
different levels of tolerance in “unfair” situations (Machado & Santos, 2011), this
article aims to demonstrate that, along with other variables such as class, variables
such as gender, nationality, and ethnicity are also relevant for the understanding and
co-explanation of attitudes toward law and justice, affecting not only access to justice
but also the perceptions of justice. More than that, access to justice is considered not
only in terms of access to the court system—how it is generally applied (Alegre, 1989;
Andre´, 1980; FRA, 2011; Galanter, 1984; Gersa˜o, 1995; Puymbroeck, 2001)—but
also implies access to various stages of the criminal justice system, from police
institutions to prison institutions. More than exploring the professionals operating in
the criminal justice system, narratives of individuals in the system will be heard
through their personal experiences, in order to give voice to those who are not usually
considered in this debate, moving their unheard voices from the margins to the center.
Brief Introduction on Main Nationalities and Ethnicities on Portuguese
Prison Statistics
Referring to the latest national statistics, there has been a considerable growth in the
foreign population behind bars over the past decades. Since the 90s, we can observe an

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exponential increase in imprisoned foreigners, almost doubling the population per-
centage in a decade, from 9.6% in 1994 to 17.0% in 2004,...