RES/37/22 Equality and non-discrimination of persons with disabilities and the right of persons with disabilities to access to justice

GE.18-04307(E)

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Human Rights Council Thirty-seventh session

26 February–23 March 2018

Agenda item 3

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Argentina,* Andorra,* Australia, Austria,* Belgium, Bosnia and Herzegovina,*

Bulgaria,* Chile, Croatia, Cyprus,* Denmark,* Ecuador, Estonia,* Finland,*

Georgia, Germany, Haiti,* Honduras,* Hungary, Iceland,* Ireland,* Israel,* Italy,*

Latvia,* Lithuania,* Luxembourg,* Maldives,* Mexico, Monaco,* Montenegro,* New

Zealand, Paraguay,* Portugal,* Republic of Moldova,* Slovakia, Spain, Sweden,*

Switzerland, Thailand,* Turkey,* Ukraine, United Kingdom of Great Britain and

Northern Ireland, United States of America, Uruguay:* draft resolution

37/… Equality and non-discrimination of persons with disabilities and the right of persons with disabilities to access to justice

The Human Rights Council,

Recalling the Convention on the Rights of Persons with Disabilities and the Optional

Protocol thereto,

Recalling also the universality, indivisibility, interdependence and interrelatedness

of all human rights and fundamental freedoms and the need for persons with disabilities to

be guaranteed the full enjoyment of their rights and freedoms without discrimination,

Reaffirming all of its previous resolutions on the rights of persons with disabilities,

the most recent of which was resolution 31/6 of 23 March 2016 on the rights of persons

with disabilities in situations of risk and humanitarian emergencies, and welcoming the

efforts of all stakeholders to implement those resolutions,

Recalling General Assembly resolution 72/162 of 19 December 2017 on the

implementation of the Convention on the Rights of Persons with Disabilities and the

Optional Protocol thereto: situation of women and girls with disabilities,

Reaffirming that discrimination against any person on the basis of disability is a

violation of the inherent dignity and worth of the human person,

Recalling in particular that article 5 of the Convention reaffirms that all persons are

equal before and under the law and are entitled without any discrimination to the equal

protection and equal benefit of the law, and provides that States shall prohibit all

discrimination on the basis of disability, guarantee to persons with disabilities equal and

effective legal protection against discrimination on all grounds and, in order to promote

* State not a member of the Human Rights Council.

equality and eliminate discrimination, shall take all appropriate steps to ensure that

reasonable accommodation is provided,

Recalling in that regard that specific measures that are necessary to accelerate or

achieve de facto equality of persons with disabilities shall not be considered discrimination,

Mindful that any distinction, exclusion or restriction on the basis of disability that

has the purpose or effect of impairing or nullifying the recognition, enjoyment or exercise,

on an equal basis with others, of all human rights and fundamental freedoms in the political,

economic, social, cultural, civil or any other field constitutes discrimination on the basis of

disability, which includes the denial of reasonable accommodation,

Recognizing that participation, accountability, non-discrimination and empowerment

are fundamental principles of a human rights-based approach to disability, and noting

article 3 of the Convention in that regard,

Mindful of the need to incorporate a gender perspective in all efforts to promote the

full enjoyment by persons with disabilities of human rights and fundamental freedoms,

Recalling the general principles reflected in the Convention, namely, non-

discrimination, full and effective participation and inclusion in society, respect for

difference and acceptance of persons with disabilities as part of human diversity and

humanity, equality between men and women, and respect for the evolving capacities of

children with disabilities,

Emphasizing that the enjoyment of equality and non-discrimination and the right to

effective access to justice on an equal basis with others are closely linked to the enjoyment

of the full range of human rights by persons with disabilities,

Recognizing that progress has been made, yet deeply concerned that many persons

with disabilities in all regions continue to face significant obstacles in achieving equality

and non-discrimination, and effective access to justice on an equal basis with others,

Emphasizing that taking all appropriate steps to ensure the provision of reasonable

accommodation is essential to promoting equality and eliminating discrimination,

Deeply concerned that girls and women of all ages with disabilities are subject to

multiple, aggravated or intersecting forms of discrimination that affect their enjoyment of

their human rights, including their ability to have access to justice on an equal basis with

others, and that those forms of discrimination stem from harmful stigma and stereotypes

based on gender and disability, and bearing in mind the risk of segregation, violence and

abuse, including sexual violence and abuse, against women and girls with disabilities,

particularly occurring in families, in institutions and carried out by support providers,

Deeply concerned also at the negative impact of those laws and practices on the

rights of persons with disabilities that provide inadequate support to such persons to

exercise their legal capacity on an equal basis with others, which has a negative impact on

the enjoyment of equality and non-discrimination, and in some cases that deny their right to

effective access to justice on an equal basis with others, or allow for their forced

institutionalization on the basis of a real or perceived disability,

Emphasizing that access to procedural and age-appropriate accommodations is

essential to facilitating the effective role of persons with disabilities as direct and indirect

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

other preliminary stages, and highlighting the key role of States in promoting appropriate

training for those working in the field of administration of justice, including police and

prison staff, in order to help to ensure effective access to justice for persons with

disabilities, as recognized in article 13 of the Convention,

Noting the cross-cutting nature of equality and non-discrimination in the 2030

Agenda for Sustainable Development, which has an impact on all the Sustainable

Development Goals, noting in particular Goal 10 and the specific reference in target 16.3 to

ensuring equal access to justice for all and in target 17.18 to increasing significantly the

availability of high-quality, timely and reliable data disaggregated by, inter alia, disability

and other characteristics relevant in national contexts, as a means to measure the

advancement under the 2030 Agenda and to ensure that no one is left behind,

Noting also that, in 2019, the high-level political forum on sustainable development

will review Goals 10 and 16 under the theme “empowering people and ensuring

inclusiveness and equality”,

Welcoming the work of the Special Rapporteur on the rights of persons with

disabilities, and taking note with appreciation of her reports,1

Welcoming also the work of the Committee on the Rights of Persons with

Disabilities and taking note with appreciation of its general comments,

Welcoming further the work undertaken by the task force on secretariat services,

accessibility for persons with disabilities and use of information technology,

1. Welcomes the fact that, to date, 176 States and one regional integration

organization have ratified or acceded to the Convention on the Rights of Persons with

Disabilities, which has 160 signatories, and that 92 States have signed and 92 States have

ratified or acceded to the Optional Protocol to the Convention, and calls upon those States

and regional integration organizations that have not yet ratified or acceded to the

Convention and the Optional Protocol to consider doing so as a matter of priority;

2. Encourages States that have ratified the Convention and have submitted one

or more reservations to it to initiate a process to review regularly the effect and continued

relevance of such reservations and to consider the possibility of withdrawing them;

3. Welcomes the reports of the Office of the United Nations High Commissioner

for Human Rights on the thematic studies on the right of persons with disabilities to

equality and non-discrimination,2 and the right to access to justice on an equal basis with

others,3 and calls upon all stakeholders to consider the findings and recommendations in

those studies with a view to their implementation, where appropriate;

4. Calls upon States to take effective and appropriate measures to remove all

barriers preventing persons with disabilities from having effective access to justice on an

equal basis with others and to ensure the full enjoyment of equality and non-discrimination

by persons with disabilities in the fields of equality and non-discrimination and access to

justice, such as by:

(a) Guaranteeing equal recognition before the law of persons with disabilities

and ensuring that they have the opportunity to exercise their legal capacity on an equal

basis with others in all aspects of life, as recognized in article 12 of the Convention;

(b) Adopting laws and policies to address and reduce inequalities, including by

facilitating accessibility, working actively to change negative perceptions and attitudes and

providing for inclusive environments;

(c) Taking specific measures to combat discrimination, particularly structural

discrimination, and providing effective monitoring tools and remedies to improve the

enforcement of these specific measures;

(d) Taking measures to ensure protection against all kinds of discrimination,

including by integrating the Convention in national law, where appropriate, providing tools

and guidelines to apply its provisions and innovative aspects, empowering persons with

disabilities with regard to their rights, building the capacity of public officials, including

judges and monitoring agents, and ensuring effective remedies and proper redress and

reparation to victims of discrimination;

(e) Taking all appropriate measures to eliminate all situations of gender-based

discrimination against women and girls with disabilities of all ages, who face an increased

vulnerability to violence, abuse, discrimination and negative stereotyping;

1 A/HRC/37/56 and Adds. 1-2.

2 A/HRC/34/26.

3 A/HRC/37/25.

(f) Improving or adopting legal and regulatory frameworks that identify those

responsible for providing accommodation in all areas of the law, providing guidelines and

protocols for their implementation, assuring flexibility in their policies and budgets to

accommodate specific requests, and laying out appropriate procedures and criteria to

objectively assess when a requested accommodation imposes a disproportionate or undue

burden, ensuring a case-by-case approach;

(g) Ensuring that the principles of equality and non-discrimination for persons

with disabilities are integrated across the implementation of the 2030 Agenda for

Sustainable Development;

(h) Amending civil, criminal and procedural laws that prevent persons with

disabilities from directly or indirectly participating in judicial or administrative processes

on an equal basis with others, including those measures that grant third-party representation

in law or in fact without free and informed consent or by denying legal standing;

(i) Implementing laws and policies that ensure that information needed to defend

rights is accessible to persons with disabilities on an equal basis with others and that free

and affordable legal aid is provided to persons with disabilities as appropriate, in all areas

of law;

(j) Repealing or revising laws that have the effect of denying the right to a fair

trial to any persons with disabilities, adopting laws to prohibit practices that act as a barrier

to justice for persons with disabilities, and enacting and implementing anti-discrimination

measures, including providing procedural accommodations when necessary in all legal

proceedings;

(k) Reforming legislation that has the effect of depriving persons with disabilities

of legal capacity on an equal basis with others, including legislation affecting the right to a

fair trial, including the presumption of innocence, the right to be tried in person and defend

oneself in person or through legal counsel of one’s choosing, the right to examine witnesses

for the prosecution and to obtain evidence and examine witnesses on one’s behalf and the

right not to be compelled to testify or confess guilt, among other procedural safeguards and

fair trial guarantees;

(l) Providing an effective remedy for violations of human rights, taking into

consideration the specific circumstances of the person with disability, addressing systemic

change, including acknowledgement of the facts and acceptance of responsibility as a

component of satisfaction, and providing guidance for legal and policy reform and

capacity-building as guarantees of non-repetition;

(m) Enabling 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;

(n) Providing training to judicial officers, lawyers and others, including forensic

experts, prison staff and the police, on the human rights of persons with disabilities in order

to overcome barriers in their effective access to justice on an equal basis with others;

5. Urges States to take all appropriate measures to eliminate discrimination

against women and girls with disabilities and to promote gender equality in order to ensure

the equal enjoyment of their rights, in particular to equality and non-discrimination and

access to justice on an equal basis with others;

6. Also urges States to take all appropriate measures to eliminate discrimination

on the basis of gender and/or impairment by any person, organization or private enterprise,

ensuring access to justice and accountability mechanisms and remedies for the effective

implementation and enforcement of laws aimed at preventing and eliminating

discrimination and violence against women and girls with disabilities;

7. Encourages States to engage in international cooperation efforts at all levels

aimed at enhancing their national capacities to guarantee fully the right of persons with

disabilities to equality and non-discrimination and access to justice on an equal basis with

others, encourages the mobilization of public and private resources on a sustainable basis to

mainstream the rights of persons with disabilities in development, and invites the Office of

the High Commissioner and relevant United Nations agencies to consider ways to foster

international cooperation activities in that regard;

8. Also encourages States to integrate in their reports to the high-level political

forum on sustainable development the advancements with regard to the rights of persons

with disabilities as reflected in laws, policies and practices developed relevant to the

commitments under the 2030 Agenda for Sustainable Development, and to develop human

rights indicators and collect data disaggregated by age, sex and disability to inform those

indicators using the Washington Group on Disability Statistics short set of questions for

disaggregation;

9. Calls upon States to ensure that all international cooperation is inclusive of

persons with disabilities and does not contribute to creating new barriers for them;

10. Also calls upon States to consider becoming party to the Marrakesh Treaty to

Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or

Otherwise Print Disabled;

11. Decides that its next annual interactive debate on the rights of persons with

disabilities will be held at its fortieth session and that it will focus on article 26 of the

Convention, on habilitation and rehabilitation, and will have international sign

interpretation and captioning;

12. Also decides that an interactive debate on the rights of persons with

disabilities will be held at its forty-third session and that the debate will focus on article 8 of

the Convention, on awareness-raising, and will have international sign interpretation and

captioning;

13. Requests the Office of the High Commissioner to prepare its next annual

thematic study on the rights of persons with disabilities on article 26 of the Convention, and

to prepare its subsequent study on article 8 of the Convention, 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, requiring contributions to be

submitted in an accessible format, and requests that such stakeholder contributions, the

studies themselves and an easy-to-read-version of them, be made available on the website

of the Office of the High Commissioner, in an accessible format, prior to the fortieth

session of the Human Rights Council;

14. Encourages the task force on secretariat services and accessibility for persons

with disabilities to report orally to the Human Rights Council on its work and on the

progress made on the implementation of its accessibility plan;

15. Urges States to consider further integrating and mainstreaming the

perspective and rights of persons with disabilities into the work of the Human Rights

Council;

16. Encourages representative organizations of persons with disabilities, civil

society, national monitoring bodies and human rights institutions to participate actively in

the debates referred to in paragraphs 11 and 12 above and in regular and special sessions of

the Council and its working groups;

17. Requests the Secretary-General, the United Nations High Commissioner for

Human Rights and United Nations offices to continue the progressive implementation of

standards and guidelines for the accessibility of facilities and services of the United Nations

system, taking into account relevant provisions of the Convention, and underlines that the

Human Rights Council, including its Internet resources, should be fully accessible to

persons with disabilities;

18. Requests the Secretary-General to continue to ensure that the work of the

Office of the High Commissioner with respect to the rights of persons with disabilities and

the Committee on the Rights of Persons with Disabilities are adequately resourced for the

fulfilment of their tasks;

19. Decides to remain seized of the matter.