The three UN bodies that deal with disability rights have teamed up to issue the first-ever guidelines to help countries implement existing obligations to ensure effective access to justice for people with disabilities. The Special Rapporteur on the Rights of persons with Disabilities, the Committee on the Rights of Persons with Disabilities and the Special Envoy of the Secretary-General on Disability and Accessibility have jointly published (on 28 August 2020) a set of 10 Principles and Guidelines on Access to Justice for Persons with Disabilities.
As the introduction makes clear:
While access to justice is fundamental for the enjoyment and fulfilment of all human rights, many barriers prevent persons with disabilities from accessing justice on an equal basis with others. Such barriers include restrictions on the exercise of legal capacity; lack of physical access to justice facilities, such as courts and police stations; lack of accessible transportation to and from these facilities; obstacles in accessing legal assistance and representation; lack of information in accessible formats; paternalistic or negative attitudes questioning the abilities of persons with disabilities to participate during all phases of the administration of justice; and lack of training for professionals working in the field of justice. In the justice system, persons with disabilities are often considered to be unworthy of, unable to benefit from or even likely to be harmed by due process protection provided to all other citizens. Even fundamental rights, such as the right to remain silent and the presumption of innocence, may be denied either directly in law or policy or indirectly in custom and practice. The risks are extreme – e.g. false confessions, erroneous verdicts and unlawful deprivation of liberty.
The principles are as follows:
All persons with disabilities have legal capacity and, therefore, no one shall be denied access to justice on the basis of disability.
Facilities and services must be universally accessible to ensure equal access to justice without discrimination of persons with disabilities.
Persons with disabilities, including children with disabilities, have the right to appropriate procedural accommodations.
Persons with disabilities have the right to access legal notices and information in a timely and accessible manner on an equal basis with others.
Persons with disabilities are entitled to all substantive and procedural safeguards recognized in international law on an equal basis with others, and States must provide the
necessary accommodations to guarantee due process.
Persons with disabilities have the right to free or affordable legal assistance.
Persons with disabilities have the right to participate in the administration of justice on an
equal basis with others.
Persons with disabilities have the rights to report complaints and initiate legal proceedings
concerning human rights violations and crimes, have their complaints investigated and be
afforded effective remedies.
Effective and robust monitoring mechanisms play a critical role in supporting access to justice for persons with disabilities.
All those working in the justice system must be provided with awareness-raising and training programmes addressing the rights of persons with disabilities, in particular in the
context of access to justice.
The guidelines amplify each of the principles, and set out an important road-map towards making justice equally accessible to all.
The introduction makes clear that:
The Principles and Guidelines are not intended to describe in detail a particular system of justice. Rather, drawing on the consensus of contemporary thought and on actual experience, they seek to set out what is generally accepted as good practice in guaranteeing, without discrimination, equal and fair access to justice, in accordance with article 13 and other relevant provisions of the Convention. In implementing the Principles and Guidelines, States should be cognizant of and address multiple and intersectional discrimination in access to justice. Consistent with their obligations under the Convention, it is also critically important that States closely consult with and actively involve persons with disabilities and their representative organizations.
Without for one minute detracting from the hugely important challenge being laid down here to how things have traditionally been done in a whole host of systems simply because they always have been done that way, it should be noted that the guidelines accompanying the principles are infused with the hardline interpretation of Article 12 CRPD (the right to legal capacity) that has marked much of Committee on the Rights of Persons with Disabilities’ approach to date. Compliance with principle 1 therefore requires states to:
(c) Ensure that constructs such as “cognitive incapacity” and “mental incapacity”, as determined, for instance, by functional or mental status assessments, are not used to restrict a person’s right to legal capacity;
(d) Repeal or amend all laws, regulations, policies, guidelines and practices that directly or indirectly restrict the legal capacity of persons with disabilities, including those that allow for substituted decision-making and those that require that a person be “of sound mind” to take any action, thereby excluding persons with disabilities from equal access to justice; [and]
(e) Repeal or amend all laws, regulations, policies, guidelines and practices that establish and apply doctrines of “unfitness to stand trial” and “incapacity to plead”, which prevent persons with disabilities from participating in legal processes based on questions about or determinations of their capacity;
Put another way, the guidelines might be thought to take the Committee straight back into the deeply problematic territory which we thought that they had now sought to avoid through their endorsement of the Australian Law Reform Commission’s proposal as a model for law reform compliant with Article 12.
However, this unhelpful complication aside, these principles, if taken seriously, would bring about a major, and crucial, transformation in ensuring both access to justice for disabled people, and, in turn, for their ability to use that access to secure their substantive rights.