37/25 Right to access to justice under article 13 of the Convention on the Rights of Persons with Disabilities - Report of the Office of the United Nations High Commissioner for Human Rights

GE.17-23429(E)



Human Rights Council Thirty-seventh session

26 February−23 March 2018

Agenda items 2 and 3

Annual report of the United Nations High Commissioner

for Human Rights and reports of the Office of the

High Commissioner and the Secretary-General

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Right to access to justice under article 13 of the Convention on the Rights of Persons with Disabilities

Report of the Office of the United Nations High Commissioner for

Human Rights

Summary

In the present study, the Office of the United Nations High Commissioner for

Human Rights sets forth the standards on equal and effective access to justice by persons

with disabilities under article 13 of the Convention on the Rights of Persons with

Disabilities. In the study, the Office provides guidance for the implementation of article 13,

identifying good practices and making recommendations.

United Nations A/HRC/37/25

Contents Page

I. Introduction ................................................................................................................................... 3

II. Right to access to justice under international human rights law.................................................... 3

A. Access to justice ................................................................................................................... 3

B. Evolution of the right to access to justice in international human rights law........................ 4

C. Convention on the Rights of Persons with Disabilities ......................................................... 5

III. Access to justice of persons with disabilities ................................................................................ 6

A. Equality before the courts and right to a fair trial ................................................................. 6

B. Right to an effective remedy ................................................................................................. 12

C. Participation in the administration of justice ........................................................................ 14

IV. Conclusions and recommendations ............................................................................................... 16

I. Introduction

1. In its resolution 31/6, the Human Rights Council requested the Office of the United

Nations High Commissioner for Human Rights (OHCHR) to prepare its annual study on

the rights of persons with disabilities to be submitted to the thirty-seventh session of the

Council with a focus on article 13 of the Convention on the Rights of Persons with

Disabilities. The study, to be made available prior to the thirty-seventh session, was to be

undertaken in consultation with States and other relevant stakeholders, regional

organizations, the Special Rapporteur on the rights of persons with disabilities, civil society

organizations, including organizations of persons with disabilities, and national human

rights institutions. The Council also requested OHCHR to require that contributions be

submitted in an accessible format and that they be made available, together with the study,

in an easy read version on the OHCHR website.1

2. Pursuant to the Council’s request, OHCHR solicited contributions and received 22

responses from States, 14 from national human rights institutions, 2 from regional

organizations and 21 from civil society organizations and other stakeholders. The present

study focuses on the right to access to justice in relation to the implementation of the

Convention.

II. Right to access to justice under international human rights law

A. Access to justice

3. Access to justice is a core element of the rule of law.2 It is a fundamental right in

itself and an essential prerequisite for the protection and promotion of all other human

rights.3 Access to justice encompasses the right to a fair trial, including equal access to and

equality before the courts, and seeking and obtaining just and timely remedies for rights

violations. Guaranteeing access to justice is indispensable to democratic governance and

the rule of law as well as to combat social and economic marginalization.

4. Persons with disabilities face significant obstacles in accessing justice, including

criminal proceedings and the determination of civil rights and obligations. These obstacles

include denial of their legal standing and due process guarantees and the inaccessibility of

the physical and communication environments during proceedings. Furthermore, national

legislation often contains provisions that deny equal treatment of persons with disabilities

before courts and other jurisdictional bodies.

5. The Convention on the Rights of Persons with Disabilities is the first international

human rights instrument that enshrines an explicit right to access to justice. It calls for the

elimination of obstacles and barriers faced by persons with disabilities in accessing justice

on an equal basis with others, and innovates on previous standards developed under

international human rights law. The Convention not only clarifies what access to justice

means for persons with disabilities, but also upholds equal and effective participation at all

stages of and in every role within the justice system as a core element of the right to access

to justice. The Convention thereby expands this right beyond the notions of a fair trial and

effective remedies which have been the principal features put forward by human rights

instruments and their monitoring bodies.

6. Goal 16 of the 2030 Agenda for Sustainable Development calls for promoting the

rule of law and ensuring equal access to justice for all. Member States have a unique

opportunity to implement article 13 of the Convention as part of their strategy to

accomplish the goals of the 2030 Agenda. In order to “leave no one behind”, under the

1 See www.ohchr.org/EN/Issues/Disability/Pages/RighttoAccestoJusticeArticle13.aspx.

2 See General Assembly resolution 67/1, paras. 14 and 16.

3 See A/HRC/25/35, para. 3.

Agenda Member States commit to the principles of equality and non-discrimination,

including for persons with disabilities, as a cross-cutting feature of all Sustainable

Development Goals.

7. International cooperation has a key role in advancing the right to access to justice of

persons with disabilities, as recognized in both the Convention and the 2030 Agenda.

Technical and financial cooperation should adopt a twin-track approach by mainstreaming

the rights of persons with disabilities and adopting disability-specific programmes;

disability markers can contribute to monitoring their implementation.

8. The present report focuses on formal justice systems and other quasi-judicial

systems; however, any of the provisions applicable to them, particularly those related to

non-discrimination and participation, are also applicable in traditional justice systems such

as religious, customary, indigenous and community justice systems.

B. Evolution of the right to access to justice in international human rights

law

9. The right to access to justice has developed over time in international and regional

human rights instruments, although it was not explicitly formulated as such until the

adoption of the Convention. The Universal Declaration of Human Rights provides for the

right to equality before the law without discrimination, equal protection under the law, the

right to an effective remedy for violations of rights, the right to a fair and public hearing by

an independent and impartial tribunal, and the presumption of innocence.4 Similarly, the

International Covenant on Civil and Political Rights recognizes these principles and rights.5

The Covenant, as interpreted by the Human Rights Committee, provides several due

process guarantees for the conduct of judicial proceedings to ensure the right to a fair trial

that apply to any judicial body with any legal competence.6 Further, the Human Rights

Committee has determined that States parties are required under the Covenant to guarantee

that individuals have accessible and effective remedies to assert their rights, which should

be appropriately adapted so as to take into account the specific requirements of different

populations.7

10. The International Covenant on Economic, Social and Cultural Rights also recognizes

that everyone has the right to an effective remedy, be it judicial or administrative. The

Committee on Economic, Social and Cultural Rights has determined that, should an

administrative remedy be deemed appropriate, it too must be “accessible, affordable, timely

and effective”. 8 The Committee against Torture has interpreted the provision of the

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment on redress as encompassing the concepts of effective remedy and reparation,

and emphasized the importance of victim participation in achieving the ultimate objective

of restoration of the dignity of the victim. 9 The Committee on the Elimination of

Discrimination against Women adopted a general recommendation on women’s access to

justice in which it recognized that effective access to justice optimizes the emancipatory

and transformative potential of the law. It encompasses justiciability, availability,

accessibility, good quality, the provision of remedies and accountability of justice

systems.10 The Committee on the Rights of the Child also calls for particular attention by

States parties to ensure that effective, child-sensitive procedures are available to children

4 Arts. 7, 8, 10 and 11.

5 Arts. 2 (1) and (3), 14 and 26.

6 See general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair

trial, para. 7.

7 See general comment No. 31 (2004) on the nature of the general legal obligation imposed on States

parties to the Covenant, para. 15.

8 See general comment No. 9 (1998) on the domestic application of the Covenant, para. 9.

9 See general comment No. 3 (2012) on the implementation of article 14, paras. 2 and 4.

10 See general recommendation No. 33 (2015) on women’s access to justice, paras. 1 and 2.

and their representatives in accessing independent complaint procedures and courts. 11

Similarly, the regional human rights mechanisms also enshrine the right to fair trial and an

effective remedy.12

11. All these instruments, and others related to access to justice, apply equally to

persons with disabilities and ensure that they are entitled to the same protections and

guarantees in accessing justice as others. None of the treaty bodies had specifically

addressed the barriers facing persons with disabilities in accessing justice, and it was only

with the entry into force of the Convention on the Rights of Persons with Disabilities that

explicit attention to this issue emerged.

C. Convention on the Rights of Persons with Disabilities

12. The Convention introduced innovations that expanded the classical notion of access

to justice. It underscores the fact that access to justice for persons with disabilities entails

not only the removal of barriers to ensure access to legal proceedings to seek and obtain

appropriate remedies on an equal basis with others, but also the promotion of the active

involvement and participation of persons with disabilities in the administration of justice.

13. During the negotiations on the Convention, the Ad Hoc Committee on a

Comprehensive and Integral International Convention on the Protection and Promotion of

the Rights and Dignity of Persons with Disabilities initially considered including this right

within parts of other articles of the Convention. Ultimately, it decided to create, for the first

time in a human rights treaty, a specific provision formulated as the right to access to

justice.13

14. The right to access to justice is presented in the Convention in two parts. Article 13

(1) requires States parties to ensure “effective access to justice for persons with disabilities

on an equal basis with others, including through the provision of procedural and age-

appropriate accommodations, in order to facilitate their effective role as direct and indirect

participants, including as witnesses, in all legal proceedings, including at the investigative

and other preliminary stages”. By including witnesses and, implicitly, jurors, judges and

lawyers, access to justice became for the first time an entitlement belonging to persons

other than the parties concerned in legal proceedings. Article 13 (2) requires States parties

to promote appropriate training for those working in the field of the administration of

justice. The Convention thus considers the justice system as an integral part of governance

which requires the contributions and participation of society to function effectively.

Ensuring participation in the justice system, in all capacities, is a reaffirmation of the

exercise of citizenship also enshrined in articles 4 (3), 29 and 33.

15. Access to justice under the Convention is a cross-cutting right that should be

interpreted in line with all its principles and obligations. In particular, article 13 should be

read in conjunction with article 5 on equality and non-discrimination, to ensure that persons

with disabilities enjoy access to justice on an equal basis with others. Access to justice

requires enabling rights for persons with disabilities, in particular equal recognition before

the law (art. 12), and accessibility, including multiple means of communication and access

to information (arts. 9 and 21).

16. The Convention seeks to eliminate multiple and intersecting forms of discrimination

faced by persons with disabilities on the grounds of impairment, sex, age, ethnicity,

indigenous background, sexual orientation and gender identity, among other elements of

their identity.14 Read together with article 6, article 13 reinforces the right to access to

11 See general comment No. 5 (2003) on general measures of implementation of the Convention, para.

24.

12 African Charter on Human and Peoples’ Rights, art. 7; Convention on the Protection of Human

Rights and Fundamental Freedoms (European Convention on Human Rights), arts. 6 and 13;

American Convention on Human Rights, arts. 8 and 10.

13 Ad Hoc Committee, seventh session, daily summary of discussions, 18 January 2006.

14 See Committee on the Rights of Persons with Disabilities, general comment No. 3 (2016) on women

and girls with disabilities, para. 4 (c).

justice for women and girls who face specific barriers.15 In addition, in conjunction with

article 7, the Convention addresses the specific situation of boys and girls with disabilities,

recognizing the right to express their views in all matters affecting them and to be provided

with disability and age-appropriate assistance to do so (arts. 7 (3) and 13 (1)). Targeting

multiple and intersecting discrimination beyond the grounds of age and sex should help to

address the specific challenges that persons with different types of impairment face,

including persons with albinism, deaf persons, deafblind persons and persons with

psychosocial or intellectual impairments. Additionally, persons with disabilities who are

migrants, refugees, indigenous people, people living in rural areas, poor people, intersex

persons and others face specific forms of exclusion that should be considered in the

administration of justice and by all judicial mechanisms and actors.

III. Access to justice of persons with disabilities

A. Equality before the courts and right to a fair trial

17. The Convention calls for substantive equality, “which includes both equality of

opportunities and equality of outcomes”, 16 and article 13 (1) explicitly requires States

parties to “ensure access to justice for persons with disabilities on an equal basis with

others”. 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.17

18. The Committee on the Rights of Persons with Disabilities has stressed that persons

with disabilities are entitled to all rights and procedural safeguards during the pretrial, trial

and post-trial phases, including the right to a fair trial, presumption of innocence, the rights

of defence and the right to be heard in person, as well as all the other rights granted to other

persons.18 While all procedural guarantees apply equally to persons with disabilities, the

present report will concentrate on those elements that most commonly pose barriers to

ensuring access to justice on an equal basis with others.

19. Access to justice must effectively be guaranteed in all cases to ensure that no

individual is deprived, in procedural terms, of his or her right to claim justice.19 In relation

to persons with disabilities, whether with respect to criminal proceedings or in civil matters

access to justice is most often denied as a result of lack of accessibility of and access to

information, procedural accommodations, the right to claim justice and stand trial, respect

for presumption of innocence and legal aid.

1. Accessibility and access to information

20. Persons with disabilities may face physical barriers to accessibility, such as barriers

which render the act of physically entering police stations or courts impossible.

Communication barriers may prevent access to information, understanding legal procedures

or exchanges with judges, lawyers and other interlocutors. Further, many persons with

disabilities are impeded from accessing courts and claiming their rights as a result of

confinement to institutions or being isolated in their homes, without recourse to outside

contact to lodge complaints. In addition, lack of information on their rights and how to

invoke them before courts and authorities pose barriers to seeking remedies.

21. Effective access to information and communication allows persons with disabilities

to know and defend their rights. The use of accessible information and communications

technologies, in particular through their application to delivering government services (e-

governance), can contribute to improving access to justice and access to information. The

15 Ibid., para. 52.

16 Ibid., para. 9.

17 See Human Rights Committee, general comment No. 32, para. 2.

18 Makarov v. Lithuania (CRPD/C/18/D/30/2015).

19 See Human Rights Committee, general comment No. 32, para. 9.

Committee has pointed out that article 9 (2) (h) of the Convention calls on States parties to

promote accessible legal information to persons with disabilities and to society at large by

using the full and varied range of formats and modes of communication. It also noted that

new technologies could contribute to that end.20

22. Several good practices illustrate the possibilities of guaranteeing that legal

information and communication are accessible to persons with disabilities. The

Constitutional Court of Colombia 21 and the Supreme Court of Mexico 22 called for the

translation of judgments concerning the rights of persons with disabilities into easy read

formats for the benefit of the petitioners and other persons with intellectual disabilities. In

Finland, the police have designed their website to provide a range of accessible formats,

such as plain language, content and videos in sign language, some of them captioned, and a

complaint form in large print.

23. States should implement mechanisms to monitor their legal proceedings and

evaluate the success of their policies with regard to access to justice. For example, States

could establish markers that allow for the identification of persons with disabilities who

access the justice system and the outcomes. Existing systems could also include data-

collection tools that allow for disaggregation, such as the Washington Group on Disability

Statistics Short Set of Questions.23

2. Procedural and age-appropriate accommodations

24. Equality of arms is a component of the right to a fair trial, guaranteeing that the

same procedural rights are provided to all the parties to ensure access to the same

information and the same opportunities to adduce and challenge evidence.24 Persons with

disabilities are frequently hindered in enjoying equality of arms due to inaccessible

documentation or procedures. Beyond accessibility, States parties must make available the

procedural and age-appropriate accommodations that persons with disabilities may require

in accessing justice. The list of measures that States parties should take to ensure effective

and equal access to justice enumerated in article 13 (1) of the Convention is not exhaustive,

and States parties are obliged to provide procedural and age-appropriate accommodations to

facilitate the role of persons with disabilities as direct and indirect participants in all legal

proceedings, including the investigative and other preliminary stages. Hence, procedural

accommodations serve as a means to effectively realize the right to a fair trial and the right

to participate in the administration of justice, and are an intrinsic component of the right to

access to justice. The Committee on the Rights of Persons with Disabilities has provided a

number of examples of how procedural accommodations for persons with disabilities can

look in practice, for example, through the provision of sign language interpretation, legal

and judicial information in accessible formats for, multiple means of communication, easy

read versions of documents, Braille and video link testimony, among others.25 Procedural

accommodations should also encompass procedural flexibility to accommodate specific

requirements for participation, for example allowing sign language interpreters to

participate in confidential jury debates, extending or adjusting procedural deadlines and

adjusting procedural formalities.

25. The obligation to provide procedural accommodations derives directly from civil

and political rights. It is directly linked to the principle of non-discrimination and is not

subject to progressive realization. In the negotiations on article 13 of the Convention, it was

debated whether the language to be adopted should refer to “procedural accommodation” or

20 See general comment No. 2 (2014) on accessibility, para. 22.

21 Decision T-573/2016.

22 Resolución Judicial de la Primera Sala de la Suprema Corte de la Nación en el Amparo en Revisión

159/2013.

23 Available from www.cdc.gov/nchs/washington_group/wg_questions.htm.

24 See Human Rights Committee, general comment No. 32, para. 13.

25

See general comment No. 1 (2014) on equal recognition before the law, para. 39;

CRPD/C/ARM/CO/1, para. 21; CRPD/C/BIH/CO/1, para. 24; CRPD/C/CAN/CO/1, para. 30 (b); and

CRPD/C/CYP/CO/1, para. 36.

“reasonable accommodation”; it was decided to drop the reference to “reasonable”.26 The

deliberate decision to drop “reasonable” underscored that, unlike reasonable

accommodation, procedural accommodation is not subject to a proportionality test;27 failure

to provide procedural accommodation when required by a particular person with disability

thus constitutes a form of discrimination on the basis of disability in connection with the

right to access to justice.

26. The Committee has not yet defined what the practical process in providing

procedural accommodations would be. Nevertheless, it has consistently indicated that

procedural accommodations should be provided on the basis of the “free choice and

preference” of the person concerned. Therefore, the judge or the responsible entity should

give primary consideration to the request of the individual with disability, as he or she

knows best what his or her own accommodation needs are.28 The determination of the need

for procedural accommodations should not necessarily be based on medical information

and cannot be subject to any disability assessment, for example those related to the granting

of a disability card or certification. If the requirements of the person concerned change over

time, procedural accommodations must be modified or replaced, as appropriate.29

27. Procedural accommodations must be age-appropriate. The Committee has

recognized this right for children with disabilities.30 Additionally, the Committee on the

Rights of the Child has highlighted that different accommodations should be made to

guarantee the right to access to justice for children, including children with disabilities.31

For example, age-appropriate procedural accommodations may require modified courtroom

procedures and practices, specific settings and age-appropriate assistance, among others.32

28. The Committee on the Rights of Persons with Disabilities has consistently

recommended to States parties that they review their legislation, including administrative,

civil and criminal legislation, in order to explicitly include the duty to provide procedural

accommodations in all legal proceedings. 33 National laws and regulations should also

define the entity responsible for providing procedural accommodations and should include

details on where and how persons with disabilities can request and access them. Procedural

accommodations must always be available and provided free of charge.34 Accommodation

request processes should be documented by the obligated entity in order to facilitate

accountability and to improve knowledge management.35 In this last sense, systematization

of good practices allows the identification of those accommodations that best serve the

purpose of ensuring effective participation to the benefit of future proceedings. It also

contributes to building a resource within the institutional memory of the organization,

thereby contributing to the goal of making jurisdictional systems more inclusive and

accessible.

29. The process of request and provision of procedural accommodations should be

carried out confidentially, in line with article 22 of the Convention, and this requirement

26 Ad Hoc Committee, seventh session, daily summaries, 18 January 2006. At that session, Israel put

forward the view that that “accommodations” in article 13 referred to “process” and not to

“reasonable accommodation”; Chile requested the inclusion of the phrase “judicial proceedings

should be adjusted as needed”; and Canada suggested “reasonable accommodation”. At the eighth

session, on 13 September 2006, the drafting group adopted “procedural and age-appropriate

accommodations”).

27 See A/HRC/34/26, para. 35.

28 See CRPD/C/ARM/CO/1, para. 22; CRPD/C/BIH/CO/1, para. 25; and CRPD/C/SRB/CO/1, para. 24.

29 See A/HRC/34/26, para. 46, in which a similar requirement with respect to reasonable

accommodation is discussed.

30 See CRPD/C/CAN/CO/1, para. 29 (b); CRPD/C/DEU/CO/1, para. 28 (b); and CRPD/C/MEX/CO/1,

para. 26 (c).

31 See general comment No. 10 (2007) on children’s rights in juvenile justice, para. 6; and general

comment No. 12 (2009) on the right of the child to be heard, para. 9.

32 See general comment No. 10, paras. 46 and 49.

33 See CRPD/C/KEN/CO/1, para. 26 (b); CRPD/C/ECU/CO/1, para. 27 (c); and CRPD/C/CHN/CO/1,

para. 24.

34 See CRPD/C/MUS/CO/1, para. 24; and CRPD/C/CAN/CO/1, para. 30 (b).

35 See A/HRC/34/26, para. 41.

must be clearly stated in national laws and regulations. Persons with disabilities should not

be forced to openly disclose personal, health or rehabilitation information against their will

and without their free and informed consent.36

30. A number of States have made progress on adopting legislation and developing

protocols concerning procedural accommodations for persons with disabilities in accessing

justice. For example, Azerbaijan modified its Code of Civil Procedure to allow witnesses

with disabilities to testify at their place of residence, when appropriate.37 The Best Practices

Tool Kit for State and Local Governments under the Americans with Disabilities Act of the

United States of America, the Protocol for Accessing Justice by Persons with Disabilities of

Argentina and the Disability Access Bench Book of Australia are examples of protocols

that provide recommendations and guidance on how to provide procedural

accommodations.

31. Lack of procedural accommodations violates the right to a fair trial and may lead to

effective exclusion from proceedings and/or being subjected to unfair sentences. Related to

the latter, limited support in terms of procedural accommodations for persons with

intellectual and psychosocial disabilities in criminal proceedings results in their

overrepresentation among persons sentenced to the death penalty,38 as acknowledged by the

Committee. 39 In the past year, it has been reported that people with intellectual and

psychosocial disabilities have been executed or remained under sentence of death,40 despite

Economic and Social Council resolution 1989/64,41 General Assembly resolution 71/187

and Human Rights Council resolution 36/17, in which retentionist States were called upon

not to impose or execute the death penalty on persons with intellectual or psychosocial

disabilities. The Human Rights Committee has also underlined that States parties must

refrain from executing or sentencing to death persons with psychosocial and intellectual

disabilities. 42 The Committee on the Rights of Persons with Disabilities has expressed

concern at the fact that persons with psychosocial and/or intellectual disabilities may face a

greater risk of incurring the death penalty because of a lack of procedural accommodations

in criminal proceedings.43

32. The imposition of the death penalty is increasingly regarded as being incompatible

with fundamental tenets of human rights, in particular human dignity, the right to life and

the prohibition of torture or other cruel, inhuman or degrading treatment or punishment.

States that continue to impose and implement death sentences should declare a moratorium

on executions with a view to abolishing the death penalty. The Secretary-General has

recently reiterated that laws and sentencing guidelines must be developed or amended to

prohibit the imposition of the death sentence and the execution of persons with

psychosocial and intellectual impairments.44

3. Right to claim justice and stand trial

33. Deprivation of legal capacity and substituted decision-making arrangements can

prevent and exclude persons with disabilities from participating in legal proceedings and

may force their representation by a third party, such as a legal guardian. The exercise of

legal capacity is intrinsically connected with the right to access to justice, as often the

second cannot be exercised without the first.45 At the same time, without access to justice,

36 See CRPD/C/DNK/CO/1, para. 51.

37 See CRPD/C/AZE/Q/1/Add.1, para. 74.

38 See, for example, Fair Punishment Project, “Death penalty disproportionately used against persons

with significant mental impairments in five Florida counties”, January 2017.

39 See CRPD/C/IRN/CO/1, paras. 22 and 23.

40 Amnesty International, Global Report: Death Sentences and Executions 2016, p. 7.

41 See also E/2015/49 and Corr.1, para. 85.

42 See CCPR/C/PAK/CO/1, para. 18 (c).

43 See CRPD/C/IRN/CO/1, paras. 22 and 23.

44 See A/HRC/36/26, para. 56.

45 See Committee on the Rights of Persons with Disabilities, general comment No. 1, para. 38.

persons with disabilities cannot challenge deprivation of their legal capacity or the denial or

restrictions of their rights that ensue as a result.46

34. Deprivation of legal capacity, whether formally mandated or as a result of de facto

practice, leads to exclusion from judicial processes and has pervasive effects on the right of

persons with disabilities to a fair trial under due process of law. For example, defendants

with psychosocial and intellectual impairments are often deprived of their right to be heard

in person, pursue adversarial proceedings, give evidence or contest witnesses. Such

limitations affect the principles of equality of arms and non-discrimination, impeding

access to justice on an equal basis with others. The Committee has exposed such limitations

imposed on persons with disabilities standing trial, and has consistently recommended that

States parties refrain from and prohibit such practices, and repeal those legal provisions

from their laws.47

35. Persons with disabilities may also be subjected to tests to assess their competence or

fitness to stand trial that may lead to detention and treatment against their will, and

commonly for durations that exceed the sentences ordered upon conviction. The Committee

has strongly rejected the concept of unfitness to stand trial and its discriminatory character48

and has called for its removal from the criminal justice system.49 This position is supported

by the Working Group on Arbitrary Detention, which has called for persons with

psychosocial disabilities to be given the opportunity to stand trial promptly, with support

and accommodations, rather than declaring such persons incompetent.50

36. Another manifestation of the denial of legal capacity within the access to justice is

the practice of applying “non-liability” (“inimputabilidad”; “non-imputabilité”) or the

“insanity defence”, according to which the individual is declared to have been “of unsound

mind” and/or “insane” at the moment of the commission of the alleged crime, resulting in

exemption from criminal responsibility. The individual is then diverted from the

proceedings and subjected to security measures entailing deprivation of liberty and

treatment against his or her will, often indefinitely, thereby denying him or her the same

due process guarantees as others, in violation of the right to a fair trial. The Committee has

recommended revising criminal procedures to repeal the concept of non-liability, as well as

any version of the insanity defence. In addition, it has called for eliminating security

measures that involve forced medical or psychiatric treatment in institutions, and expressed

concern about those that involve a lack of the guarantees regularly provided in the criminal

justice system and an indefinite deprivation of liberty, recommending that they be

abolished.51

37. The Committee has highlighted the intersection between access to justice and equal

recognition before the law and recognized support for decision-making, as expressed in

article 12 (3) of the Convention, as a means for exercising the right to access to justice.52

The provision of supported decision-making can facilitate instructing a lawyer, directing

one’s defence in court and self-representation.

38. Supported decision-making requires further development in the context of access to

justice; protocols and guidelines supporting the work of judges, lawyers and other agents of

46 European Court of Human Rights, Grand Chamber, Stanev v. Bulgaria (application No. 36760/06),

judgment of 17 January 2012.

47 See, for example, CRPD/C/CAN/CO/1, paras. 31 (b) and 32 (b); CRPD/C/ETH/CO/1, paras. 31 and

32; CRPD/C/ARE/CO/1, para. 27 (b); CRPD/C/THA/CO/1, paras. 29 and 30; CRPD/C/QAT/CO/1,

para. 27; CRPD/C/DNK/CO/1, para. 34; CRPD/C/KOR/CO/1, paras. 27 and 28; and

CRPD/C/ECU/CO/1, paras. 28 and 29 (b).

48 “Guidelines on article 14 of the Convention on the Rights of Persons with Disabilities: the right to

liberty and security of persons with disabilities, adopted by the Committee at its fourteenth session,

held in September 2015”, para. 16.

49 See CRPD/C/KOR/CO/1, para. 27.

50 See the basic principles and guidelines on remedies and procedures on the right of anyone deprived of

their liberty to bring proceedings before a court (A/HRC/30/37, annex), guideline 20, para. 107 (b). 51 See CRPD/C/KEN/CO/1, paras. 27 and 28; CRPD/C/ITA/CO/1, para. 35; CRPD/C/ECU/CO/1, paras.

28 and 29 (b); CRPD/C/PRT/CO/1, para. 33 (b); and CRPD/C/BRA/CO/1, paras. 30 and 31 (a).

52 See general comment No. 1, para. 38.

justice operating in judicial or administrative proceedings are fundamental. The provision

of procedural accommodations in this context can also contribute to building up relevant

practice. Theoretical and applied research can contribute by systematizing practices and

developing tools to ensure respect of the right to exercise legal capacity in all legal

procedures. 53 States should involve their national associations of law professionals in

developing these tools in consultation with persons with disabilities and their representative

organizations, in accordance with the Convention.

4. Presumption of innocence

39. The presumption of innocence is a fair trial principle that guarantees that an accused

person maintains innocence until proven guilty. In certain legal systems, persons with

disabilities found “unfit to stand trial” or exempted from criminal responsibility on the basis

of their psychosocial or intellectual impairment are commonly diverted from proceedings

and subjected to security measures entailing committal or forced treatment in mental health

facilities under a regime of impairment-based detention, which may be of an indefinite

duration.54 As trial is not pursued and no conviction obtained, instead of being based on a

finding of guilt, security measures are ordered based on the individual’s alleged

“dangerousness” to self and others.55 Such court orders constitute unequal treatment, as

they are based on perceived “dangerousness”, impairment or impairment-related

assumptions,56 rather than on a determination of culpability for the commission of a crime

through due process. These practices culminate in the abandonment of the individual’s right

to the presumption of innocence and in the denial of due process safeguards that should be

applicable to every person, as recognized in international law. The Committee has

accordingly called for them to be repealed.57

5. Legal aid

40. The absence of free legal aid is one of the most common barriers to equality of arms

and equal access to justice, particularly for persons with disabilities, who number

disproportionately among the world’s poor and face challenges in affording legal advice

and representation. The right to legal counsel is a fair trial right and includes the right to

free legal aid.

41. The Committee has raised concerns about the lack of available free legal aid for

persons with disabilities,58 including for those living in institutions,59 and for women and

girls with disabilities facing violence or abuse.60 In some countries where legal aid services

have been established, in practice they lack the necessary resources; do not operate on an

independent basis; are inaccessible to persons with disabilities; or lack sufficient expertise

about the rights of persons with disabilities.61 States parties should increase their efforts to

guarantee legal aid for persons with disabilities, enacting legislation and allocating

resources to support the provision of free legal aid. Legal aid should be accessible, and

States parties must ensure the availability of services and information using multiple means,

modes and formats of communication across their whole territory. For example, in Canada,

the Ontario Legal Aid Office provides all information online in alternative formats and

trains employees on communicating with people with various types of impairments.

53 See rule 68, paragraph 2, of the Committee’s rules of procedure (CRPD/C/1/Rev.1) and paragraph 69

of the Committee’s working methods (CRPD/C/5/4).

54 See, for example, Noble v. Australia, (CRPD/C/16/D/7/2012), para. 8.7.

55 See CRPD/C/BEL/CO/1, para. 27.

56 See CRPD/C/CYP/CO/1, para. 38.

57 See CRPD/C/PRT/CO/1, para. 33 (b).

58

See CRPD/C/ARM/CO/1, para. 22; CRPD/C/SVK/CO/1, para. 41; CRPD/C/UKR/CO/1, para. 28;

and CRPD/C/KEN/CO/1, paras. 25 and 26 (a).

59 See CRPD/C/MEX/CO/1, paras. 25 and 26 (b).

60 See CRPD/C/GTM/CO/1, para. 38.

61 See CRPD/C/CHN/CO/1, para. 23; CRPD/C/NZL/CO/1, para. 23; CRPD/C/ARE/CO/1, para. 25 (b);

and CRPD/C/THA/CO/1, para. 27.

42. States should be mindful that austerity measures can prevent persons with

disabilities from accessing essential services and benefits, exposing them to social

exclusion and rights violations that call for legal support to claim rights. 62 Cutting legal aid

has pervasive effects and subjects persons with disabilities to further marginalization.

B. Right to an effective remedy

43. The right to an effective remedy is a central component of the right to access to

justice and an element inherent in the effective enjoyment and exercise of all rights. The

Committee has documented many examples of ineffective remedies for persons with

disabilities involving the failure on the part of the authorities to act with due diligence to

investigate, prosecute and punish perpetrators and/or provide remedies.63 To have effective

remedies, persons with disabilities require: (a) equal and effective access to justice (i.e.,

available and accessible complaint mechanisms, investigation bodies and institutions,

including independent judicial bodies capable of determining the right to reparation and

awarding redress64); (b) adequate, effective and prompt redress and reparation for harm

suffered; and (c) access to relevant information concerning violations and reparation

mechanisms.65

1. Duty to investigate

44. As set out in the Basic Principles and Guidelines on the Right to a Remedy and

Reparation for Victims of Gross Violations of International Human Rights Law and Serious

Violations of International Humanitarian Law, States have the duties to investigate and, if

there is sufficient evidence, to prosecute the person allegedly responsible for violations and,

if found guilty, to punish him or her.66 It is important to highlight this essential element of

effective remedies, in particular for persons with disabilities, given that cases of violence,

abuse, exploitation and other forms of harm to their mental and bodily integrity commonly

remain unaddressed due to lack of reporting, delays in opening investigations on the

grounds of lack of credibility of the victims or a failure to do so, or general acceptance of

practices such as those connected to witchcraft beliefs. This results in the recurrence of

violations and a culture of impunity,67 which engender negative stereotypes on the basis of

multiple and intersecting grounds such as gender, age, impairment, colour, race, ethnic or

social origin and religion, among others. Complaint mechanisms and investigations thus

require positive measures which are gender sensitive to ensure that victims of gender-based

violence are able to come forward and seek and obtain reparation.68

45. The Committee has called on States to ensure that authorities identify, investigate

and prosecute all cases of killing, abduction, violence, abuse, exploitation and forced labour

involving persons with disabilities, including collecting disaggregated data on these

incidents and reporting by persons with disabilities, and their outcomes.69 Article 16 (3) of

the Convention sets out an explicit obligation for States to prevent the occurrence of these

violations through effective independent monitoring of facilities and programmes designed

to serve persons with disabilities. States should explore ways of enhancing their capacity to

investigate human rights violations against persons with disabilities, strengthening their

monitoring frameworks and going beyond by providing for functions or creating bodies

62 CRPD/C/15/R.2/Rev.1.

63 See CRPD/C/LVA/CO/1, para. 29 (a); and CRPD/C/MNE/CO/1, para. 21 (b).

64 See Committee against Torture, general comment No. 3, para. 5.

65 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross

Violations of International Human Rights Law and Serious Violations of International Humanitarian

Law, General Assembly resolution 60/147, annex.

66 Ibid., para. 4.

67 See X v. United Republic of Tanzania (CRPD/C/18/D/22/2014), para. 8.2.

68 See Committee on the Elimination of Discrimination against Women, general recommendation No.

33, para. 51; and Committee against Torture, general recommendation No. 3, para. 33.

69 See CRPD/C/LVA/CO/1, para. 29 (a); CRPD/C/ARM/CO/1, para. 28; and CRPD/C/AUS/CO/1, para.

38.

which allow for exposing truth and illustrating the proper dimension of the situation they

are facing.

2. Independent monitoring frameworks

46. Independent monitoring frameworks designated under article 33 (2) of the

Convention, including national human rights institutions, can play a significant role in

strengthening access to justice for persons with disabilities, particularly when sufficiently

resourced to independently monitor and promote the implementation of the Convention.

Beyond monitoring, for example for the purposes of preventing and identifying violations

in accordance with article 16 (3), these institutions may be mandated to receive and address

complaints relating to human rights violations. Through their work, they can help identify

barriers faced by persons with disabilities in accessing justice by documenting them and

make recommendations to address them, including by calling for urgent policy or legal

reforms. Further, they are central to raising awareness about the rights of persons with

disabilities and can assist Governments in the design and delivery of training programmes

to judges, legal professionals, police staff and other stakeholders. Such mechanisms should

work closely with persons with disabilities, providing them with accessible information

about their rights and assisting them in making complaints or seeking appropriate remedies.

3. Redress and reparation

47. Courts and other jurisdictional bodies should pay specific attention to redress and

reparation when providing for specific remedies for persons with disabilities, ensuring that

the remedy for the violations of the human rights at stake is proportionate to the overall

objective of restoring the dignity of the victim.

48. The Committee has called on States to ensure the availability and accessibility of

legal remedies and of effective reparations and redress for victims of discrimination.70 It has

stated that remedies should aim at changing attitudes71 and ensure the possibility of seeking

injunctions. 72 Redress and reparation include restitution, compensation, rehabilitation,

satisfaction and guarantees of non-repetition.73 Persons should have access to remedies in

criminal and civil courts, and in administrative and quasi-judicial jurisdictions.

49. Restitution aims to restore the victim to the original situation before the violation

occurred, and will require a case-by-case analysis to ensure that the individual is removed

from a risk of repetition of the violation. Standardized solutions may not provide redress for

the specific situation of persons with disabilities; hence, an assessment involving the direct

participation of the person concerned is needed when rendering judicial or other

jurisdictional decisions. For example, in Peru the Supreme Court of Santa requires a

contextual analysis of the person when deciding cases on the basis of the standard of the

“best interpretation of the will and preference”, as developed by the Committee in its

general comment No. 1.74 Further, regarding arbitrary deprivation of liberty, the Committee

has endorsed the recommendations of the Working Group on Arbitrary Detention, among

others that, in any legal proceeding, whether judicial or administrative, where detention is

found to be arbitrary owing to the lack of free and informed consent to proceedings,

restitution should imply the restoration of liberty.75

70 See CRPD/C/DEU/CO/1, para. 12 (c); CRPD/C/TKM/CO/1, para. 10; and CRPD/C/CYP/CO/1, para.

14.

71 See CRPD/C/BEL/CO/1, para. 12. See also Inter-American Court of Human Rights, Ximenes-Lopes

v. Brazil, series C No. 149, judgment of 4 July 2006, as an example of this type of remedy.

72 See CRPD/C/BEL/CO/1, para. 12.

73 See Basic Principles and Guidelines on the Right to a Remedy and Reparation, para. 18; and

Committee against Torture, general comment No. 3, para. 6.

74 Acta de Sesión Plenaria, Pleno Jurisdiccional Distrital de Familia, Corte Superior de Justicia del Santa,

Peru, 15 July 2016.

75 See “Guidelines on article 14 of the Convention on the Rights of Persons with Disabilities”, para. 24;

see also Basic Principles and Guidelines on the Right to a Remedy and Reparation, para. 19.

50. Compensation should be proportional to the gravity of the violation and the

circumstances of each case. As recommended by the Committee, complaint mechanisms

should permit invoking multiple grounds of discrimination and ensure proportionality in

determining both liability and remedies.76

51. Rehabilitation aims to restore, as far as possible, the individual’s independence and

physical, mental, social and vocational ability, and his or her inclusion and participation in

society. All rehabilitative measures, including selection of service providers, must be

provided on the basis of the individual’s free and informed consent.77

52. Satisfaction should include thorough investigation, prosecution and exposure of

truth of human rights violations while protecting the privacy and safety of witnesses

involved in the investigation, as well as effective judicial and administrative sanctions.

Investigation should also inform legal and policy reform. States should conduct inquiries

into past violations against persons with disabilities, particularly in institutional settings

such as social care or psychiatric institutions, exposing the truth and providing appropriate

redress and reparations.78

53. Guarantees of non-repetition of the offence necessarily call for States to undertake

measures to combat impunity for violations. This should include building the capacity of

those who work in the administration of justice, including health professionals and prison

staff, on the human rights of persons with disabilities. Guarantees of non-repetition have

been recognized as offering an important potential for the transformation of social relations

that may be the underlying causes of violations; hence, they also call for systemic change

such as amending laws and policies and taking effective preventive and deterrent

measures.79 This is supported by the Committee in its recommendations contained in its

views on individual communications in relation to obligations to take measures to prevent

similar violations in the future. In these recommendations the Committee has called for,

among other things, the enactment or amendment of regulations, policies and laws in

accordance with the Convention, in consultation with representative organizations of

persons with disabilities, and ensuring their non-discriminatory application by domestic

courts; and the training of public officials, including judges and other judicial officials, so

that they may adjudicate cases in line with the Convention. The Committee has also called

for the repeal of laws that are not aligned with the provisions of the Convention.

C. Participation in the administration of justice

1. Access to justice as an integral part of governance

54. Under the Convention, for persons with disabilities to have access to justice on an

equal basis with others, they must be able to effectively participate, directly or indirectly, in

all legal proceedings, including at the investigative and other preliminary stages. Direct

participation refers to those instances in which the person with disability acts as a claimant

or defendant, as one of the official parties to the proceedings. Indirect participation refers to

other roles that contribute to the administration of justice, such as that of witness, qualified

expert, juror, judge or lawyer.

55. The Convention considers administration of justice a part of the democratic system

that contributes to good governance and, hence, goes beyond upholding the fair trial rights

of a particular person with disability. Upholding democracy, rule of law, accountability and

the effective administration of justice requires the involvement of persons representing all

facets of society, in all capacities, including persons with disabilities. Article 13 seeks to

promote the rights of persons with disabilities to contribute and participate in all aspects of

the administration of justice and other legal proceedings, as a component of active

76 See general comment No. 3, para. 18.

77 See Committee against Torture, general comment No. 3, para. 15.

78 See CEDAW/C/JPN/CO/7-8, para. 25; and A/72/133, para. 49.

79 See Committee against Torture, general comment No. 3, para. 18.

citizenship to shape the society in which we live.80 Consequently, participation in ensuring

access to justice is bound to participation in public and political life, as described across

articles 4 (3), 29, 33 and 34 of the Convention.

56. Persons with disabilities continue to face restrictions to their participation in various

capacities in legal proceedings, for example as judges, prosecutors, witnesses or jurors,

both in law and in practice.81 These restrictions are based on stereotypes that discredit the

credibility and the capacity of persons with disabilities, particularly women, to effectively

contribute to proceedings.82 An example of a positive development in this context is a

ruling by the Supreme Court of Canada in which the Court held that people with intellectual

disabilities could testify in criminal cases on the basis of a promise to tell the truth, whereas

previously they had to prove their competence to testify by explaining the meanings of the

concepts of promise, truth and falsehood.83

57. The Committee has specifically noted that the performance of jury duty is an

important aspect of civic life and integral to the judicial system. Being denied appropriate

measures to participate on an equal basis with others, such as through the provision of sign

language interpretation, has resulted in violations relating to access to justice, non-

discrimination, accessibility, freedom of expression, access to information, and

participation in political and public life.84 The role of procedural accommodations is key to

ensuring that rules of procedure can be interpreted with sufficient flexibility for the

inclusion and participation of persons with disabilities on juries on an equal basis with

others.85

58. To overcome barriers to participation, States are engaging in improving their

systems. For example, Chile has repealed the prohibition against blind and deaf persons

being eligible to be magistrates. Similarly, in Ethiopia, the House of Federation ruled

against a customary practice in the justice sector which prohibited blind persons from

acting as judges, and ordered courts to provide the necessary accommodations for them to

perform their duties. In Peru, reasonable accommodations are made available for blind

candidates taking the entry examination to become a judge or prosecutor. In Germany,

nearly 70 blind persons are judges and some have reached the highest judicial offices in the

country, including at the Federal Supreme Court.

2. Training in the fields of administration of justice and legal education

59. Attitudinal barriers affect access to justice for persons with disabilities, as they may

negatively influence the way in which laws, legal policies, procedures and practices are

implemented. Often, these attitudinal barriers stem from lack of awareness of the rights of,

and appropriate practices for, persons with disabilities in the justice system on the part of

police officers, public defenders and professionals working as public defenders or

providing legal aid, legal service providers and others. The provisions of article 13 (2)

promote appropriate training as a measure to overcome these barriers. States parties should

design and deliver mandatory regular training programmes, which should be properly

funded, involving persons with disabilities at all stages of legal proceedings, including in

rural areas.86

80 See Committee on the Rights of Persons with Disabilities, Beasley v. Australia

(CRPD/C/15/D/11/2013), para. 8.5; and Lockrey v. Australia (CRPD/C/15/D/13/2013), para. 8.9.

81 See CRPD/C/COL/CO/1, para. 34; CRPD/C/JOR/CO/1, para. 28 (b); CRPD/C/IRN/CO/1, para. 29

(a); and CRPD/C/THA/CO/1, para. 27.

82 See Committee on the Elimination of Discrimination against Women, R.P.B. v. Philippines

(CEDAW/C/57/D/34/2011); see also general recommendation No. 35 (2017) on gender-based

violence against women, updating general recommendation No. 19, para. 31 (c).

83 R. v. D.A.I. (case No. 33657), judgment of 10 February 2012.

84 See Beasley v. Australia, para. 8.5; and Lockrey v. Australia, para. 8.9.

85 Supreme Court of Illinois, People v. Guzman (case No. 118749), decision of 19 November 2015,

cited in Eilionóir Flynn, Disabled Justice?: Access to Justice and the UN Convention on the Rights of

Persons with Disabilities (Ashgate, 2015), p. 123.

86 See CRPD/C/ETH/CO/1, para. 30; CRPD/C/KOR/CO/1, para. 24; CRPD/C/PRT/CO/1, para. 31; and

CRPD/C/UGA/CO/1, para. 25 (c).

60. The Committee has recommended that training programmes address such areas as:

(a) barriers faced by persons with disabilities in accessing justice;87 (b) the rights enshrined

in the Convention, including participation on an equal basis with others;88 (c) the provision

of procedural accommodations in the legal process; 89 (d) overcoming gender- and

disability-based stereotypes; 90 (e) the rights connected to marriage, family, parenthood,

fertility and relationships; 91 and (f) ways to combat prejudice against persons with

disabilities, particularly those with psychosocial and/or intellectual impairments.

61. Several training programmes demonstrate ways in which article 13 (2) can be

implemented. For example, in Spain, police and civil society have designed a training

manual for distribution to police stations. In South Africa, the Police Service has prioritized

the training of its staff about the rights of persons with disabilities. The European Union,

Estonia and France have trained judges and other agents of justice in this regard.

IV. Conclusions and recommendations

62. The Convention on the Rights of Persons with Disabilities innovates the notion

of access to justice in international human rights law by defining what access means

for persons with disabilities, including tools to overcome barriers, and recognizing the

administration of justice as an integral part of governance in which participation is

key to promoting citizenship.

63. The right to a fair trial for persons with disabilities includes ensuring that they

have equal access to claim rights, meaning that they must have access to courts and

legal proceedings and to maintain legal standing. Equal recognition before the law

and the right to access to justice are intrinsically intertwined, and often one element

cannot be enjoyed without the other. States should modify civil, criminal and

procedural laws which prevent persons with disabilities from directly or indirectly

participating in judicial or administrative processes on an equal basis with others

either by granting third-party representation in law or in fact without free and

informed consent or by denying legal standing. States should also implement laws and

policies that ensure that information needed to defend rights is accessible, and that

free and affordable legal aid is provided to persons with disabilities in all areas of law.

64. Within proceedings, persons with disabilities face a number of barriers to

access justice due to discriminatory laws and practices, including being denied the

right to a trial. In respect of the principle of equality of arms, States should repeal

such laws and prohibit those practices and implement anti-discrimination measures,

including providing procedural accommodations when necessary, in all their forms

and in all legal proceedings. States should also reform their legislation that, as a

consequence of depriving persons with disabilities of legal capacity, promotes further

violations of the right to a fair trial, including the presumption of innocence, the right

to be heard in person, the right to contest witnesses and the right to offer evidence,

among other procedural safeguards of due process of law.

65. The right to an effective remedy includes the obligation on the part of States to

act with due diligence to investigate, prosecute and punish perpetrators and/or

provide remedies. Redress and reparation, in all their components, should be

provided, taking into consideration the specific circumstances of the person with

disability, addressing systemic change, including the exposure of truth as a component

of satisfaction, and providing guidance for legal and policy reform and capacity-

building as guarantees of non-repetition.

87 See CRPD/C/LTU/CO/1, para. 28.

88 See CRPD/C/SVK/CO/1, para. 42 (a); CRPD/C/ARM/CO/1, para. 22; CRPD/C/BIH/CO/1, para. 25;

CRPD/C/MDA/CO/1, para. 27 (b); CRPD/C/COL/CO/1, para. 35 (d); and CRPD/C/ETH/CO/1, para.

30.

89 See CRPD/C/SVK/CO/1, para. 42 (b).

90 See CRPD/C/CYP/CO/1, para. 18.

91 See CRPD/C/ITA/CO/1, para. 30.

66. Participation in the administration of justice is a fundamental condition of

citizenship. States should enable persons with disabilities in their role as witnesses,

jurors, experts, judges, lawyers or other interlocutors within the justice system to

exercise their right to participate in public and political life on an equal basis with

others. States must also seek to overcome barriers in access to justice by providing

training to judicial officers, lawyers and others, including forensic experts, prison staff

and the police, on the human rights of persons with disabilities.

67. States should collect and analyse disaggregated data on human rights violations

against persons with disabilities and on how the justice system is providing access to a

fair trial and effective remedies. Implementation of disaggregated data-collection tools

such as the Washington Group on Disability Statistics Short Set of Questions can

contribute to the data revolution and the realization of the promise of “leaving no one

behind” under the Sustainable Development Goals, particularly goal 16.