Art.13 Access to Justice
Eilionóir Flynn
From: The UN Convention on the Rights of Persons with Disabilities: A Commentary
Edited By: Ilias Bantekas, Michael Ashley Stein, Dimitris Anastasiou
- Subject(s):
- Access to justice — Disability — Jurisdiction
(p. 383) Article 13 Access to Justice
1. States Parties shall 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 investigative and other preliminary stages.
2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.
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1. Introduction 383
3. Paragraph 1 390
4. Paragraph 2 400
1. Introduction
The concept of access to justice is one that has attracted significant attention in international human rights law in recent years. People with disabilities represent one of the marginalized communities who have long sought access to justice in order to remedy violations of their human rights. It is fitting therefore, that article 13 CRPD represents the first expression of a stand-alone right to access justice in international human rights law. The drafters of the CRPD were under a mandate not to create any new rights, but rather to restate the application of existing universal human rights to the lived experience of people with disabilities.
Here we explore how the drafters drew on concepts like the right to an effective remedy and the right to a fair hearing in other UN human rights treaties, to develop a unique treaty provision on access to justice for persons with disabilities in the CRPD. We will further consider how this right has been interpreted by the UN Committee on the Rights of Persons with Disabilities (CRPD Committee) in its Concluding Observations to date, in its General Comments on article 9 (accessibility) and article 12 (equal recognition before the law) and Guidelines on article 14 (liberty and security)—each of which have clear links to the right to access justice in article 13. Further, we will explore the extent to which article 13 CRPD has been interpreted and applied in domestic and regional courts. Finally, we shall highlight individual complaints made under the Optional References(p. 384) Protocol concerning the interpretation of article 13 CRPD and any references to this provision by other treaty bodies and independent mechanisms within the UN system, with a view to considering how the Committee’s jurisprudence on this subject might develop in the future.
2. Background and Travaux Préparatoires
The scope of the right to access justice is potentially very broad. While a narrow interpretation might only refer to ‘justice’ claims pursued through the formal legal system, Lord et al consider access to justice for persons with disabilities to include ‘people’s effective access to the systems, procedures, information, and locations used in the administration of justice’.1 In the years immediately prior to the negotiation of the CRPD, increasing attention was paid to access to justice for a wide range of marginalized groups by academic scholarship and UN human rights treaty bodies. These developments should be considered as part of the context in which the stand-alone right to access justice, articulated in article 13, emerged.
At a basic level, the right to access justice set out in article 13 CRPD can be viewed as an extension of the existing universal rights to an effective remedy and to a fair hearing.2 These rights were first enumerated in the Universal Declaration of Human Rights (UDHR) in 1948, and subsequently reiterated in core human rights treaties such as the International Covenant on Civil and Political Rights, and expanded on in General Comments of the Human Rights Committee and the Committee on Economic, Social and Cultural Rights.
Traces of these rights, and other rights closely connected to accessing justice (such as the right to complain to an independent authority and to receive adequate redress for violation of rights) are found in all core UN human rights treaties—including the Convention on the Elimination of All Forms of Racial Discrimination (CERD),3 the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),4 the Convention Against Torture (CAT),5 the Convention on the Rights of the Child (CRC),6 the Convention on the Protection of the Rights of All Migrant Workers,7 and the Convention for the Protection of All Persons from Forced Disappearance.8 These references reinforce the notion that without effective access to justice, particularly at the domestic or local level where remedies are most meaningful to the individual, the strength of universal human rights is weakened, and their content devalued.
The first discussion on access to justice in the CRPD emerged in the third session of the Ad Hoc Committee that drafted the Convention. It is interesting to note that in the first compilation of proposals for a Convention produced by the Working Group of the Ad Hoc Committee in January 2004,9 no stand-alone article on access to justice was References(p. 385) proposed. Nevertheless, during the development of this compilation of proposals, concepts related to access to justice, such as the right to an effective remedy,10 the right to judicial procedures for alleged rights-violations,11 and the right to judicial equality and protection,12 were discussed as important elements of any eventual Convention.
In light of these discussions, a footnote was added to the working group’s report on article 4 (on General Obligations), which stated that previous versions of that article had included specific provisions on the right to an effective remedy.13 These had not been incorporated into the Working Group’s final draft due to the concern that there was insufficient consensus in international human rights law on the issue to justify including a specific article on the right to an effective remedy or access to justice.14 The footnote set out that the right to an effective remedy appeared in the Universal Declaration on Human Rights and the ICCPR but not in the ICESCR and so was not universally recognized in the three core UN human rights treaties.
During the negotiations at the third session of the Ad Hoc Committee, various proposals concerning access to justice were suggested.15 In the discussions on what was then draft article 9, on equal recognition as a person before the law, Japan, supported by Costa Rica, Mexico, Botswana, and Disabled People International, suggested an additional section to ensure elimination of physical and communication barriers against persons with disabilities in judicial procedures.16 Japan also noted that persons with disabilities, especially those with mental, hearing, and visual disabilities, were often at a disadvantaged position in ordinary proceedings as they faced barriers in communication which could lead to misinterpretation and unfair decisions being reached in judgments.17 Canada proposed that this article should ensure equal treatment for persons with disabilities at all stages of court and tribunal proceedings. This proposal was welcomed by Argentina, the References(p. 386) European Union, Costa Rica, and India.18 The UN Economic and Social Commission for Asia and the Pacific (ESCAP) noticed that there was no specific provision for remedies in the draft Convention text and suggested,19 together with Costa Rica,20 an additional text to ensure an effective remedy. The International Labour Organization specifically suggested the provision of assistance to persons with disability to exercise their legal capacity in accessing justice, including access to effective dispute prevention and settlement systems, as well as legal aid.21
Equally, during the third session, the Asia-Pacific Forum of National Human Rights Institutions suggested adding the following paragraphs to the draft of article 4 on General Obligations in the Working Group text:
Each State Party to this Convention undertakes: (a) To ensure that any person or class of persons whose rights or freedoms recognized in the Convention are violated shall have an effective remedy, whether the violation has been committed by persons or entities acting in an official capacity or by private persons or entities; (b) To ensure that any person claiming such a remedy shall have his or her right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, … as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination; and (c) To ensure that the competent authorities shall enforce such remedies when granted.
States Parties recognize that access to effective remedies may require the provision of free legal assistance to persons with disabilities and the modification or flexible application of existing laws and practice regulating matters of procedure and evidence.22
This wording in general reflects pre-existing statements of the right to an effective remedy in international human rights law, particularly in article 8 UDHR23 and article 2(3) ICCPR24. This follows the approach of much of the drafting process for the CRPD, given References(p. 387) that the mandate of the Ad Hoc Committee was not to create any new rights but merely to restate the application of existing human rights norms to people with disabilities.25 However, the suggested amendment also contains some elements which appear to go beyond pre-existing human rights norms. These ‘new’ additions include the recognition of the need for legal aid in order to access justice, the need for the flexibility in existing laws of procedure and evidence to accommodate disabled witnesses and defendants, and the reaffirmation of a positive obligation on the State and public bodies to enforce such remedies.
Also in the third session,26 Chile proposed in response to the Working Group text that there should be a separate article on access to justice in the CRPD, as follows: ‘States Parties must guarantee adequate access to law for persons with disabilities to facilitate their ability to address justice in judicial proceedings that could be contentious or not.’27 Chile suggested that, in order to guarantee this right, states should train judges and court staff on the rights of persons with disabilities.
At the fourth session, the Ad Hoc Committee considered access to justice issues as part of the revised proposals for the then draft article 9 on equal recognition before the law (which later became article 12).28 The relevant part of that draft article stated:
States Parties shall: …
• ensure that persons with disabilities who experience difficulty in asserting their rights, in understanding information, and in communicating, have access to assistance to understand information presented to them and to express their decisions, choices and preferences, as well as to enter into binding agreements or contracts, to sign documents, and act as witnesses.29
Although this text did not include any direct reference to the right to an effective remedy per se it did include key elements of what became the right to access to justice in the final text of article 13—including the need to have accessible information on rights and entitlements; the need for support with communication to assert rights; the entitlement to be recognized as competent to act as a witness in legal proceedings; and the entitlement to give legal instruction in order to pursue and enforce rights. However, as Lawson and Flynn have previously argued ‘the issue of the State’s obligation to make access to justice a reality outside the narrow confines of the legal system was not addressed in this draft’.30
References(p. 388) During the discussions on this draft article in the fourth session, Costa Rica withdrew its own proposal to add a subparagraph on the right to an effective remedy proposed at the third session. Instead, it proposed a new article on access to justice which maintained the provision of an effective remedy and increased the aspects of flexibility, adjustment and modification of rules, procedures and practice, and availability of accommodation.31 Japan also reiterated its proposal for modifying draft article 9 as set out at the third session, but amended its wording to explicitly refer to article 14 ICCPR.32
Civil society organizations also called for a focus on access to justice in the text of the draft Convention during the fourth session. For example, the International Disability Caucus proposed a section of article 9 to ensure the equal right of persons with disabilities to participate in all stages of procedures before courts and tribunals.33 The Landmine Survivors Network proposed to insert a new paragraph in article 9 to ensure the equal treatment of persons with disabilities in all stages of procedures before courts, tribunals, and other organs in the justice system.34 People with Disabilities Australia commented that a section concerning access to justice in article 9 should clearly state the need to modify and adjust legal procedures and rules of evidence as, in practice, persons with disabilities could not enjoy equality before the law due to the inappropriate legal procedures, rules, and practices.35
Chile restated its call from the previous session for a specific and separate article on access to justice. It proposed a provision to guarantee adequate access to courts for persons with disabilities; this was to facilitate persons with disabilities’ roles as both direct and indirect participants.36 This suggestion was supported by Venezuela, New Zealand, Mexico, References(p. 389) and various national human rights institutions, all of which agreed that a separate article on access to justice was required.37
The revision of draft articles did not finish within the session, so no amended draft text on this subject was presented in the report of the fourth session. It was agreed, however, that the previous draft would be revisited at the fifth session.38 During the fifth session of the Ad Hoc Committee, the question of whether a separate article was needed in order to guarantee equal access to justice was discussed in more detail. Many delegations supported a proposal to draft a separate article on this issue, including Costa Rica, Mexico, Chile, the EU, Norway, and Japan. During the informal discussion of draft article 9, Chile emphasized that the need to guarantee access to justice and to the judicial system should be included, and then proposed an additional sentence on access to courts.39 Costa Rica, Liechtenstein, and Japan agreed that this issue should be addressed as a separate article rather than in article 9 itself.40 The Coordinator of the discussion proposed to work on Chile’s proposal and open a discussion on this text for further elaboration as a separate article.41 There were various suggestions for the exact terms used in the article, but the Committee could not reach a mutual agreement on wording. Therefore, the Coordinator asked Chile, Australia, and Japan to collaborate on a single text.42
These delegations met separately to draft article 9 bis, which read: ‘States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, facilitating their effective role as direct and indirect participants in all legal proceedings, including the investigative and other preliminary stages.’43 No discussion on this draft was held during the sixth session, but prior to the seventh session, the Chairperson of the Ad Hoc Committee disseminated a complete draft text of the Convention to all members for consideration.44 This draft text was produced by considering the Working Group’s draft, all discussion reports and proposals during the previous sessions and was used as a basis for negotiation at the seventh session. The draft had restructured all article numbers and article 9 bis on access to justice had been changed to article 13. It had been addressed separately from the article on equal recognition before the law (now article 12) as agreed.45 Draft article 13 added an emphasis on the role of persons with disabilities as witnesses.46
References(p. 390) During the seventh session discussion on article 13, additional proposals were made by Israel and the International Disability Caucus to include a provision on accommodation, especially on age appropriate aspects, as this would be essential for persons with disabilities in accessing justice in practice.47 Chile further proposed to provide additional provisions on training of judges, judicial administrative staff and police and on procedural adjustments for persons with distinct disabilities.48 The Chairperson agreed to incorporate these essential issues into the draft text. At the eighth and final session, the draft Convention on the Rights of Persons with Disabilities was adopted by the Ad Hoc Committee without any change to draft article 13.
The final text of article 13 incorporates some elements of earlier drafts, including the obligation to enable persons with disabilities to act as witnesses and participants in legal proceedings (an idea which first appeared in draft article 9) as well as the obligation to train justice officials (as suggested by Chile in the fourth session of the Ad Hoc Committee). It also contains some innovative additions, including the ‘provision of procedural and age-appropriate accommodations’—a concept which has clear connections with article 7 of the CRPD on children with disabilities and which also draws on the Asia Pacific Forum of National Human Rights Institutions’ proposal regarding the adaptation of evidence law and judicial procedures to accommodate people with disabilities. In the following section we will consider how both paragraphs of article 13 have been interpreted by the CRPD Committee, and in academic commentary, especially as they relate and connect to other articles of the Convention on issues of equality, participation, and accessibility.
3. Paragraph 1
3.1 ‘Effective’ Access to Justice
The first requirement in article 13(1) is to ensure ‘effective’ access to justice for persons with disabilities. While the CRPD Committee has not elaborated on the meaning of ‘effective’ access in this respect, this provision might well be interpreted mutatis mutandis with the right to an effective remedy, already protected in international human rights law under the UDHR and ICCPR, as discussed above. A remedy is only considered ‘effective’ according to Roht-Arriaza, if it is both individualized and adjudicatory.49 A similar approach could be taken to determining the effectiveness of access to justice in the context of disability—where the individual’s particular requirements, for example, in terms of References(p. 391) reasonable accommodation, must be met before justice can be considered to be effectively accessed.
In order to achieve effective access to justice, the Committee has placed a particular emphasis on the need for legal representation and legal aid for persons with disabilities. For example, the Committee requested the Chinese government to allocate the necessary human and financial resources to existing legal aid service centres which were specifically established to serve persons with disabilities.50 Similar comments were made in the concluding observations on El Salvador, where the Committee requested that the state ‘[s]trengthen the mandate of the Office of the Human Rights Advocate regarding legal remedies for the defence of the rights of persons with disabilities’.51 In the Committee’s concluding observations on Mexico, this obligation was taken a step further as the state was asked to ‘provide legal aid to persons with disabilities who live in poverty or in institutions’52—a particularly relevant requirement given that institutionalisation can pose significant barriers to accessing legal information, advice, and representation, as well as securing access to justice.
Further details on how effective access to justice could be achieved appear in the remainder of the paragraph, with examples of adaptations that could be made to legal proceedings. However, it is also important to note that the list provided in article 13(1) is open-ended, and the examples provided are not intended to be exhaustive.
3.2 ‘On an equal basis’
The overarching obligation of article 13 is to ‘ensure effective access to justice for persons with disabilities on an equal basis with others’.53 Although the obligation to prohibit discrimination is not explicitly mentioned in article 13, it is clearly implicit in the phrase ‘on an equal basis’ and is also a general principle and general obligation of the Convention under articles 3 and 4 respectively. The scope of the non-discrimination requirement is set out in article 5 CRPD. This makes it clear that action which is discriminatory in purpose or effect must be prohibited—thus embracing something akin to the notion of indirect (as well as direct) discrimination in EU law. It also makes it clear that a failure to provide reasonable accommodation is considered discrimination54 and must be prohibited.
A reasonable accommodation, in this context, is an adjustment to standard practice or procedure which must be undertaken to remove a particular disadvantage at which a specific disabled person would otherwise be placed in order to access justice.55 Examples might include allowing more frequent breaks in the hearing for a person whose disability so requires; allowing a member of the deaf community to give evidence through a sign language interpreter; or changing the environment of the courtroom for a person whose sensory impairment makes them overly sensitive to certain kinds of light or noise.56
References(p. 392) The term ‘on an equal basis with others’ appears throughout the text of the CRPD, and is discussed further in other chapters within this volume. Its use can be viewed as a reflection of the mandate of the Ad Hoc Committee, which was not empowered to create new rights, but merely to restate the application of existing universal human rights to the lived experience of persons with disabilities. In this context, it can be understood to mean that disabled people should have the same opportunities as non-disabled people to access justice. In order to ascertain whether discrimination has occurred, the relevant question is whether a non-disabled person would have been able to access justice in the same circumstances where a disabled person has been prevented from accessing justice. Mégret further acknowledges that while ‘access to justice’ is not a new right, the fact that it is made explicit in the CRPD in a stand-alone article reflects the experience of people with disabilities who have been denied this right for so long.57
The use of the term ‘on an equal basis with others’ in this context also reinforces the links between access to justice, legal capacity and liberty, reflected in articles 12, 13, and 14. The General Comment on article 12 addresses the specific issue of access to justice in a section outlining the interconnection between the right to legal capacity and other core rights in the CRPD.58 This part of the General Comment highlights some key issues of interconnection between articles 12 and 13—including litigation capacity, competence to testify, fitness to plead—as well as broader symbolic and participatory issues concerning the representation of people with disabilities in positions of power within the justice system. While at the time of writing the Committee has not yet prepared a General Comment on article 13, these existing General Comments represent an important development in illuminating the Committee’s standpoint on access to justice, and may also provide a context for future concluding observations on article 13 for states parties who have yet to undergo dialogue with the Committee.
The Committee’s Guidelines on article 14 also raise a number of issues that intersect with the right to access justice. The Guidelines consider that diversion mechanisms from the general justice system involving deprivations of liberty (eg involving non-consensual psychiatric treatment) violate both the right to liberty under article 14 and the right to access justice under article 13. The Committee states that: ‘These laws and procedures commonly have a lower standard when it comes to human rights protection, particularly the right to due process and fair trial, and are incompatible with article 13 in conjunction with article 14 of the Convention.’59 It is important to note that the Committee did not rule out the use of all diversion programmes in the criminal justice system, and specifically cited restorative justice as an example of a programme which could be effective in deterring future crime and one which should be available to persons with disabilities on an equal basis with others.
The Committee’s Guidelines also highlighted declarations of unfitness to stand trial or incapacity to be found criminally responsible as measures that are contrary to article 14 of the Convention, as they ‘deprive the person of his or her right to due process and References(p. 393) safeguards that are applicable to every defendant.’60 Further, the Committee called on states to eliminate the use of ‘security measures’ that involve indefinite deprivation of liberty and absence of regular guarantees in the criminal justice system.61 Statements to this affect had also previously been included in the Committee’s concluding observations to various states under article 14, including New Zealand,62 Australia,63 Ecuador,64 and Korea.65
In the most recent Concluding Observations available at the time of writing, the UN Committee on the Rights of Persons with Disabilities appears to be focusing more explicitly on discrimination in the context of access to justice. For example, the Committee recommended that Mexico ‘adopt priority corrective measures to ensure that the groups of persons with disabilities who are particularly discriminated against also have access to justice.’66 Similarly, the Committee recommended that Korea ‘ensure the effective implementation of article 26 of the Anti-Discrimination against and Remedies for Persons with Disabilities Act.’67 Further recommendations of the Committee which detail the specific adaptations to the justice system which may be required to ensure effective access to justice for persons with disabilities will be discussed further in the following section.
3.3 ‘Procedural and age-appropriate accommodations’
As described above, article 13(1) does not explicitly mention reasonable accommodation, although this concept is clearly applicable to access to justice through articles 3, 4, and 5 CRPD. However, article 13(1) does require states to ensure that ‘procedural and age appropriate accommodations’ are carried out. Existing literature has noted that while the relationship between such accommodations and ‘reasonable accommodation’ is not explained in the treaty text, these procedural and age-related accommodations may be more generic and less individualized in approach than the obligation in article 5 CRPD to provide reasonable accommodation to persons with disabilities.68 Further, this literature suggests that the obligation to provide such accommodations in the context of access to justice ‘cannot be mitigated by arguments about reasonableness and the extent of the burden they would place on the duty-bearer’69 since the providers of such accommodations will inevitably be the state or public officials involved in the administration of justice.
References(p. 394) Clarity is now beginning to emerge from the concluding observations of the Committee on the Rights of Persons with Disabilities on the content and scope of procedural accommodations in the justice system—primarily those which can facilitate effective communication. For example, the Committee recommended that Costa Rica ensure ‘the guarantee of interpretation in Costa Rican sign language, the use of augmentative and alternative modes of communication and full accessibility to the physical environment, transport and communication’.70 The Committee has also now called for the full implementation of existing legislation to enable access to justice (including legislation on legal aid and the right to an effective remedy), and in the case of Ecuador specifically, has recommended that ‘the legislature introduce legislative reforms so that the national criminal, civil, labour, and administrative procedures include the requirement to make procedural accommodations for persons with disabilities, thereby enabling their access to justice on an equal basis with others’.71
The Committee has also elaborated on the need to ensure procedural accommodations for particularly marginalized groups of persons with disabilities. In its concluding observations on El Salvador, the Committee expressed concerns about the access to justice barriers faced by women and girls with disabilities, who the Committee noted were at higher risk of becoming ‘victims of abuse or neglect owing to the low credibility ascribed to their witness statements’.72 In light of this, the Committee asked El Salvador to ‘[p]ut in place reasonable procedural accommodation with a gender and age focus to ensure access to justice for persons with disabilities and to provide free legal assistance, information on each case— as early as the police investigation—in accessible formats, access to judicial buildings and the services of trained Salvadoran sign-language interpreters’. Further, the Committee recommended that the government ‘[a]dopt measures to secure access to justice for women and girls with disabilities, with due consideration paid to their role as witnesses and victims during the trial phase’.73 The issue of access to justice for children with disabilities was also highlighted in the concluding observations on Mexico, where the Committee recommended that the State ‘ensure that all children with disabilities have access to justice and may express their opinion in the course of the determination of the best interests of the child, through procedural accommodations appropriate to their age and specific disability-related needs.’74
These recommendations do not provide detailed guidance on specific age-appropriate accommodations that can ensure that children with disabilities can express their opinion on matters concerning them in the legal process, but rather reminds states of their obligation to ensure that this occurs. It is also worth noting that the Committee has not to date commented on the need to ensure age-appropriate accommodations for older persons with disabilities—but the use of the term ‘age-appropriate’ rather than ‘age-based’ in the text of the article seems to suggest that the drafters only had children in mind, and were (p. 395) not considering general age-based discrimination in the justice system, which could encompass older persons with disabilities.
The Committee has also commented on the need for procedural accommodations in specific kinds of legal proceedings in its concluding observations. For example, with respect to Australia, the Committee focuses on the particular need for procedural accommodations in the criminal justice system, recommending that the state ‘ensure that all persons with disabilities who have been accused of crimes and are currently detained in jails and institutions, without trial, are allowed to defend themselves against criminal charges, and are provided with required support and accommodation to facilitate their effective participation’.75 The Committee also required China to review ‘its procedural civil and criminal laws in order to make mandatory the necessity to establish procedural accommodation for those persons with disabilities who intervene in the judicial system’.76
Procedural accommodations should be interpreted differently from the related obligations in articles 5 and 9 to ensure ‘reasonable accommodation’ and ‘accessibility’ for persons with disabilities. The Committee’s General Comment on article 9 sets out the distinction between reasonable accommodation duties and legal obligations to provide accessibility as follows:
Accessibility is group related, whereas reasonable accommodation is individual related. This means that the duty to provide accessibility is an ex ante duty. That means the State party has the duty to provide accessibility before individual request to enter or use a place or service. State parties need to set accessibility standards which have to be negotiated with organizations of persons with disabilities, and these standards need to be prescribed to service providers, builders, and other relevant stakeholders.77
The General Comment goes on to make the following link between these accessibility obligations and access to justice:
There can be no effective access to justice if buildings of law-enforcement organs and judiciary aren’t physically accessible, if the services they provide, information and communication aren’t accessible (article 13).78
There is also clearly some overlap between the general accessibility obligations in article 9 and the specific requirements of article 21 to make information and communication accessible in order to ensure freedom of expression for persons with disabilities. Discourse on accessibility and the legal obligations to provide access in the spheres of information and communication in particular (which are perhaps those most relevant for access to justice) is in its infancy—and a conclusive finding on the application of these obligations is beyond the scope of this analysis. Nevertheless, as international jurisprudence on this issue continues to develop, states will have to come to grips with these concerns, and particularly, as stated in the General Comment on article 9, may have to negotiate with organisations of persons with disabilities in order to understand how legal information and advice can be provided in an accessible manner in order to ensure effective access to justice.
References(p. 396) The development of a General Comment on article 13 would build on the concluding observations to date and could provide further guidance from the Committee on concrete examples of procedural accommodations that might be expected of states in the context of access to justice. In the meantime, scholars have provided several examples of how this requirement to provide procedural accommodations could be interpreted. Lawson and Flynn suggest that one example might be changing the eligibility criteria for legal aid79 to ensure that it is open to disabled people who wish to pursue discrimination claims.80
Gibson takes this argument further and contends that article 13 can be read to include a right to legal aid, stating: ‘If article 13 of the CRPD is to have any meaning, then it follows that—in the absence of forums which are simple enough in both procedure and substantive law to allow disabled citizens to have a fair hearing without the assistance of a lawyer—the convention requires states to provide legal aid to people with disabilities who cannot access private legal assistance and that, at a minimum, legal aid should be available for cases involving breaches of the human rights referred to in the treaty.’81 Such an expansive reading of article 13 might well be challenged by states parties. However, Gibson makes a crucial point about the need for radical reform of procedural mechanisms, including courts and tribunals, to accommodate people with disabilities who wish to assert and enforce their legal rights, and locates her argument within the commentaries of various UN treaty bodies on the availability of legal aid in the civil and criminal context to ensure the realisation of a wide variety of human rights.
As has been argued elsewhere, the provision of an independent statutory advocate could also fall within the obligation to make procedural accommodations for effective access to justice as outlined in article 13.82 There are also examples in many countries of reform in the fields of evidence and procedural law to enable people with disabilities to testify in court, including the initiation of a special process for disabled victims of serious crimes in Israel,83 the use of victim-friendly courts in Zimbabwe,84 and the increasing use of video-recorded and video-link evidence for children and adults with disabilities. As these countries come to be reviewed by the Committee, and as issues concerning access to justice are increasingly highlighted in shadow reports, it will be made increasingly clear what obligations states have to make procedural and age-appropriate accommodations for persons with disabilities.
3.4 Direct and Indirect Participants, Including as Witnesses
As discussed above, the term ‘direct and indirect participants’ was introduced by Chile in its proposal for a separate article on access to justice in the fourth session of the Ad Hoc Committee. However, the term ‘direct and indirect’ participants is not further defined in (p. 397) the text of article 13, nor has it been elaborated upon in the Concluding Observations issued to date by the UN Committee. Participants in ‘all legal proceedings’ could be understood to include the parties to the case (plaintiffs and defendants), witnesses, as specified in the text of the article itself, victims, jury members, lawyers, judges, tribunal members, court staff. One interpretation is that the term ‘direct participant’ refers to those directly involved in, or affected by, the outcome of a legal proceeding—including the parties to the case, legal representatives, and adjudicators such as the judge and jury. Indirect participants could then include court staff, court reporters, members of the public who attend the hearing, and even other potential claimants who could be affected by the outcome of the hearing. The specific reference to witnesses in this part of article 13 is important—and procedural accommodations required for witnesses to participate and give testimony in proceedings has been a key focus of the Committee’s concluding observations, as described above. Further elaboration on who is considered a participant in legal proceedings could be provided if the Committee develops a general comment on article 13.
At the regional level in Europe, the European Court of Human Rights has cited article 13 CRPD in a number of cases involving plaintiffs with intellectual and psychosocial disabilities. Unfortunately, the article is often referred to in passing without any analysis of its impact on the interpretation of the relevant ECHR provisions. However, in one case, RP v UK,85 the European Court has commented on the content of article 13 CRPD. This case involved the removal of the baby of a young woman with intellectual disabilities from her care by a local authority in the UK. The woman’s solicitor felt that she lacked the capacity to provide legal instructions, and the Official Solicitor was appointed as her litigation friend to instruct her solicitor on her behalf. The Official Solicitor’s legal responsibility is to represent the ‘best interests’ of the client, rather than to communicate the person’s wishes to the court.86 In this case, the Official Solicitor did not oppose the making of the care order in light of the evidence, and as a result RP’s solicitor did not contest this evidence or argue against the order in court. Based on the ‘best interests’ standard, RP was not able to effectively challenge the removal of her child from her care. The applicant alleged a violation of her right to a fair hearing under article 6 ECHR before the European Court in the decision that her child should be removed from her care, as well as a violation of her right to respect for family life under article 8 ECHR. Although the Court did not find that any violation of RP’s ECHR rights had occurred, it did cite article 13 CRPD and stated as follows:
In cases involving those with disabilities the Court has permitted the domestic courts a certain margin of appreciation to enable them to make the relevant procedural arrangements to secure the good administration of justice and protect the health of the person concerned.87 This is in keeping with the United Nations Convention on the Rights of Persons with Disabilities, which requires States to provide appropriate accommodation to facilitate the role of disabled persons in legal proceedings. However, the Court has held that such measures should not affect the very essence of an applicant’s right to a fair trial as guaranteed by Article 6 (1) of the Convention.88
References(p. 398) The Court did not comment on the quality or nature of the procedural accommodations required by the CRPD, or address whether the Official Solicitor’s approach respected the applicant’s human rights. However, the Court did hold that ‘in order to safeguard RP’s rights under article 6(1) of the Convention, it was imperative that a means existed whereby it was possible for her to challenge the Official Solicitor’s appointment or the continuing need for his services’.89 This decision provides some insight into how article 13 CRPD might influence further development of the European Court’s jurisprudence on access to justice for persons with disabilities.90 It will be interesting to track how, as the CRPD is increasingly widely ratified, and in some states, incorporated into domestic law, how the interpretation of article 13 CRPD might further develop in arguments before domestic courts.
The UN Committee on the Rights of Persons with Disabilities has also heard X v Argentina,91 the applicant, a disabled prisoner, alleged violations by Argentina of articles 9, 10, 13, 14, 15, 17, 25, and 26 CRPD, based on his treatment in prison and the conditions he endured there. His argument concerning article 13 was based on the fact that he was obliged to travel to the court where the oral proceedings against him were taking place despite his state of health and against the advice of his doctors. When he arrived at court, he was denied entry to the hearing, and forced to remain in the ambulance or on a stretcher outside the courtroom. The Committee did find that the applicant’s rights under articles 9, 14, 15, 17, and 26 had indeed been violated by Argentina during his detention. However, the Committee determined that based on the documentation submitted, the applicant had not exhausted all domestic remedies in respect of his allegation concerning article 13 and therefore declared this portion of the communication inadmissible under article 2(d) of the Optional Protocol.
3.5 All Legal Proceedings, Including at Preliminary Stages
While the focus of article 13(1) is on legal proceedings, the Committee has to date taken an expansive view of the types of hearings and processes that come within the scope of this paragraph. For example, access to justice in non-judicial proceedings was addressed by the Committee in its concluding observations on New Zealand, in the context of the assessment of accident compensation claims and the possible establishment of an Accident Compensation Tribunal. The Committee requested the state to ‘examine the processes for the assessing of compensation by the Accident Compensation Corporation to ensure that adequate legal aid is available and that its processes are fully accessible to all claimants, and finally to ensure that this mechanism has a human rights focus’.92 Further, the Committee recommended that the representative organisations of persons with disabilities be consulted as part of the establishment of any tribunal, and that ‘the tribunal adopt a flexible approach to the admission of evidence, and that those who lack the means should be given adequate legal aid to ensure full access to the tribunal’.93
References(p. 399) The Committee has also received an individual communication concerning the right to participate in all legal proceedings.94 In this case, the applicant, a deaf man, alleged a violation of his rights under articles 12, 13, 21, and 29 CRPD, based on domestic laws that denied deaf jurors a right to sign language interpretation during court proceedings or in jury deliberations. The Committee however deemed this case inadmissible, as the applicant had not been personally affected by the law in question. It held that for a person to claim to be the victim of a violation of a right protected by the Convention, he or she must show either that an act or an omission of the State party concerned has already adversely affected his or her enjoyment of that right, or that such an effect is imminent, for example, on the basis of existing law and/or judicial or administrative decision or practice. The applicant did argue that an infringement of his CRPD rights was imminent, as he might be imminently selected from the Electoral Roll to perform jury duties, which in turn would give rise to the assessment of his ability to perform those duties, as well as the outcome of this assessment. However, the Committee held that this argument was merely hypothetical and hence the applicant could not therefore claim victim status within the meaning of article 1(1) of the Optional Protocol.
As described above in reference to procedural accommodations, the Committee has paid particular attention to specific kinds of legal proceedings where persons with disabilities may be unfairly disadvantaged, especially in the criminal justice system. In its concluding observations on Paraguay, the Committee noted with concern that criminal law provided for special ‘care measures’ which could be applied to persons with disabilities without the same level of respect for due process as would be available in a normal criminal trial. The Committee therefore recommended ‘that the state party review its legislation with a view to ensuring that criminal sanctions applicable to persons with psychosocial or intellectual disabilities are subject to the same degree and have the same conditions as any other person subject to the justice system, providing in such cases that the administration of justice is done in a manner which is reasonable and respects due process’.95
Concerns regarding unequal treatment in the criminal justice system are also echoed in the Committee’s concluding observations on Australia, which requires ‘the State party to ensure that persons with psychosocial disabilities are ensured the same substantive and procedural guarantees as others in the context of criminal proceedings, and in particular to ensure that no diversion programmes to transfer individuals to mental health commitment regimes or requiring an individual to participate in mental health services are implemented’.96 These recommendations indicate that the Committee does not consider alternative pathways from criminal proceedings, such as the imposition of ‘care measures’ or diversion to mental health treatment, to be ‘procedural accommodations’ in line with article 13(1), but rather, violations of the right to access justice on an equal basis with others. This approach is now echoed in the Committee’s Guidelines on article 14 on the right to liberty and security, as will be discussed further below.
References(p. 400) 4. Paragraph 2
While the first paragraph of article 13 is primarily focused on participation in the ‘legal system’ including within this ‘all investigative and preliminary stages’ as discussed above, the second paragraph of article 13 adopts a broader approach. This is indicated by its requirement to ensure training of all those ‘working in the field of administration of justice, including police and prison staff’. Much of the Committee’s concluding observations to date have focused on the need for more training for a wide range of professionals. For example, the Committee recommended that El Salvador: ‘[d]esign training programmes for all those involved in the legal system, including the police, judges, legal professionals, social workers and health-care workers, in both urban and rural areas.’97 This approach gives an expansive interpretation to the term ‘those working in the field of administration of justice’, extending it beyond legal professionals, court staff, police, and prison staff, to social workers and healthcare workers. The Committee further required Australia to ensure that ‘standard and compulsory modules on working with persons with disabilities be incorporated into training programmes for police officers, prison staff, lawyers, the judiciary and court personnel’.98 A specific emphasis on training for the judiciary, legal professionals and court staff has also emerged in more recent concluding observations, such as those issued to New Zealand,99 Korea,100 and Ecuador.101 Aiello102 notes that the domestic courts in Argentina relied upon article 13 CRPD in one case involving a request to restrict the legal capacity of a young woman with Down syndrome.103 In this case the judge refused to deprive the woman of her legal capacity as she was capable of making decisions with the support of her mother, relying on article 12 CRPD. The court also ordered some medical experts to undergo training on the rights of persons with disabilities, in keeping with article 13 CRPD.
The need for training has also emerged strongly from the shadow reports submitted to the Committee by civil society organisations, especially the representative organisations of persons with disabilities. For example, the Peruvian National Confederation of People with Disabilities highlighted this issue in their shadow report to the Committee, stating that: ‘In Peru, pertinent treatment is not given to persons with disabilities with regard to their access to justice, the speediness of the proceedings in which they are involved, or the necessary training of judges and penitentiary personnel in attending to them.’104 While not all of the recommendations made in shadow reports are mirrored in the Committee’s concluding observations, these reports nonetheless provide important information for References(p. 401) the dialogue which the Committee undertakes with states parties, and represent a vital opportunity to draw attention to potential violations of Convention rights, and areas for further improvement by states in their implementation of article 13 at grassroots level.
The inclusion of a specific right to access justice in the CRPD has also led other UN treaty bodies and mechanisms to place a renewed emphasis on this issue in their work, including the disability-dimensions of accessing justice. Since the CRPD entered into force, the UN High Commissioner for Human Rights has identified specific challenges facing disabled children in its 2013 report on access to justice for children.105 Similarly, the Expert Mechanism on the Rights of Indigenous Peoples and the Special Rapporteur on Poverty and Human Rights have issued reports on access to justice for indigenous peoples (including specific barriers faced by indigenous people with disabilities)106 and challenges in accessing justice for those in extreme poverty (also including people with disabilities).107 Most recently, the Committee on the Elimination of All Forms of Discrimination Against Women have published a new General Recommendation on women’s access to justice (including guidelines for ensuring a disability-sensitive and accessible justice system).108
It is also likely that the CRPD Committee will continue to receive individual communications concerning alleged violations of article 13 CRPD, and the issues raised in the two cases discussed above—courtroom access and jury service, may well reappear in future communications. Many of the issues raised in concluding observations may also form the basis for future communications to the Committee on this article, including legal aid and representation, diversion from the mainstream justice system, accessibility of information, and communication in court, and eligibility for a wide range of roles within the justice system, including as lawyers, court staff, and judges. These developments all highlight the growing interest in this topic in the international human rights community, and the potential for article 13 CRPD to guide future developments in this field.
Footnotes:
1 Janet E Lord, Katherine N Guernsey, Joelle M Balfe, Valerie L Karr, and N Flowers (eds), Human Rights Yes! Action and Advocacy on the Rights of Persons with Disabilities, (Human Rights Resource Center 2009) ch 12 para 12.1.
2 Anna Lawson and Eilionóir Flynn, ‘Disability and Access to Justice in the European Union: Implications of the UN Convention on the Rights of Persons with Disabilities’ (2013) 4 European Yearbook of Disability Law 7.
9 See Ad Hoc Committee, Working Group to draft a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, ‘Report to the Ad Hoc Committee’ Annex I (16 January 2004), available at: <http://www.un.org/esa/socdev/enable/rights/ahcwgreporta4.htm>.
10 Proposed in Art 5, ‘Obligations in relation to remedies, Letter dated 7 October 2005 from the Chairman to all members of the Ad Hoc Committee on a comprehensive and integral international Convention to promote and protect the rights and dignity of persons with disabilities’ UN Doc A/AC265/2006/1 (14 October 2005).
11 Ad Hoc Committee, ‘Compilation of Proposals for Elements of a Convention’ (15 January 2004) 86, available at: <http://www.un.org/esa/socdev/enable/rights/elementscomp.doc>. This document is comprised of the Compilation of proposals for a Comprehensive and Integral International Convention to Promote and Protect the Rights and Dignity of Persons with Disabilities UN Doc A/AC265/2003/CRP/13 (2003) and the NGO contributions to the elements of a convention UN Doc A/AC265/2003/CRP 13/Add 1 (2003).
12 ibid Compilation of Proposals 101.
13 See Ad Hoc Committee, Working Group to draft a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, ‘Report to the Ad Hoc Committee, Annex I’ (16 January 2004), available at: <http://www.un.org/esa/socdev/enable/rights/ahcwgreporta4.htm> at fn 18.
14 ibid.
15 Ad Hoc Committee, ‘Daily summary of discussions related to International Cooperation (3 June 2004), available at: <http://www.un.org/esa/socdev/enable/rights/ahc3sumic.htm>.
16 Japan proposed that states parties should ‘take appropriate and effective measures to eliminate physical and communication barriers and to reduce understanding difficulty of PWD in order to exercise all the rights in judicial procedure which are provided in the International Covenant on Civil and Political Rights.’ In Ad Hoc Committee, ‘Daily summary of discussions related to Article 9 Equal Recognition as a Person Before the Law’ (26 May 2004), available at: <http://www.un.org/esa/socdev/enable/rights/ahc3sum9.htm>.
17 Ad Hoc Committee, ‘Daily summary of discussions related to Article 9 Equal Recognition as a Person Before the Law’ (26 May 2004), available at: <http://www.un.org/esa/socdev/enable/rights/ahc3sum9.htm>.
18 Canada proposed the following text ‘States parties shall recognize that, in civil matters, adults with disabilities have a legal capacity identical to that of other adults and shall accord them equal opportunities to exercise that capacity. In particular, they shall recognize that adults with disabilities have equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.’ In Ad Hoc Committee, ‘Daily summary of discussions related to Article 9 Equal Recognition as a Person Before the Law’ (26 May 2004), available at: <http://www.un.org/esa/socdev/enable/rights/ahc3sum9.htm>.
19 The UN Economic and Social Commission for the Asia and the Pacific (ESCAP) suggested to use the text of the right to an effective remedy from the Bangkok Draft ‘States parties recognize that access to effective remedies may require the provision of free legal assistance to PWD and the modification or flexible application of existing laws and practice regulating matters of procedure and evidence.’ In ibid.
20 Costa Rica proposed that states parties should ‘take necessary measures to ensure everyone whose rights and freedoms as recognized in this Convention are violated should have an effective remedy before a national authority, notwithstanding that the violation has been committed in an official capacity’, in ibid.
21 Ad Hoc Committee, ‘Article 13—Status of Discussions—Third Session: Comments, proposals and amendments submitted electronically’, available at: <http://www.un.org/esa/socdev/enable/rights/ahcstata13tscomments.htm>.
22 See United Nations Enable, ‘NGO Comments on the draft text—Draft Article 4, Proposal by Asia Pacific Forum of National Human Rights Institutions’ (25 May 2004), available at: <http://www.un.org/esa/socdev/enable/rights/ahc3ngoa4.htm>.
23 Art 8 states that ‘[e]veryone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law’.
24 Art 2(3) states that ‘Each state party to the present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity; (b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall enforce such remedies when granted.’
25 United Nations Press Releases, ‘Chairman says draft convention sets out detailed code of implementation and spells out how individual rights should be put into practice’ (15 August 2005), SOC/4680, available at: <http://www.un.org/News/Press/docs/2005/soc4680.doc.htm>.
26 Landmine Survivors Network, ‘Daily Summary of Discussion at Third Session of UN Convention on the Rights of Persons with Disabilities, Ad Hoc Committee’ (3 June 2004) (Landmine Survivors Network, 2004) Vol 4(8).
28 United Nations, ‘Report of 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 on its fourth session’, available at: <http://www.un.org/esa/socdev/enable/documents/ahc4reporte.doc>.
29 See Ad Hoc Committee, ‘Working Group to draft a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities, Report to the Ad Hoc Committee, Annex I Draft Article 9’ (16 January 2004), available at: <http://www.un.org/esa/socdev/enable/rights/ahcwgreporta9.htm>.
30 Anna Lawson and Eilionóir Flynn, ‘Disability and Access to Justice in the European Union: Implications of the UN Convention on the Rights of Persons with Disabilities’ (2013) 4 European Yearbook of Disability Law 7, 23.
31 Costa Rica proposed a new article on access to justice as follows: ‘States parties to this convention shall recognize that the full and effective enjoyment by persons with disabilities of equality before the law shall require the modification, adjustment, and flexible application of legal procedures, practice, and rules, including rules of evidence. The states parties call take immediate and effective measures to provide such accommodation which shall include: 1) provision of information in plain language and other formats accessible to persons with disabilities; 2) provision of personal assistance to understand legal procedures, practices and rules; 3) recognizing and facilitating access to alternative modes of communication and communication technology, including sign language and Braille; 4) take all necessary measures to ensure everyone whose rights and freedoms as recognized in this convention are violated shall have an effective remedy before a national authority, notwithstanding that the violation has been committed in an official capacity.’ In Ad Hoc Committee, ‘Daily summary of discussions related to Article 9 Equal Recognition as a Person before the Law’ (26 August 2004), available at: <http://www.un.org/esa/socdev/enable/rights/ahc4sumart09.htm>.
32 Japan proposed the following wording: ‘[States parties shall] take appropriate and effective measures to eliminate physical and communication barriers and to reduce understanding difficulty of persons with disabilities in order to exercise the rights provided in Article 14 of the International Covenant on Civil and Political Rights.’ In Ad Hoc Committee, ‘Contributions submitted by Governments in electronic format at the Fourth Session—Proposed Modifications to Draft Article 9’, available at: <http://www.un.org/esa/socdev/enable/rights/ahc4da9.htm>.
33 Ad Hoc Committee, ‘Article 13—Status of Discussions—Fourth Session: Comments, proposals and amendments submitted electronically’, available at: <http://www.un.org/esa/socdev/enable/rights/ahcstata13fscomments.htm>.
34 ibid.
35 ibid.
36 Chile proposed the following wording: ‘Pursuant to the principle of equal protection before the law in the exercise of human rights, states should guarantee adequate access to courts for persons with disabilities, facilitating their effective role as direct or indirect parties to contentious and non contentious legal proceedings.’ In Ad Hoc Committee, ‘Contributions submitted by Governments in electronic format at the Fourth Session—Proposed Modifications to Draft Article 9’, available at: <http://www.un.org/esa/socdev/enable/rights/ahc4da9.htm>.
37 Ad Hoc Committee, ‘Daily summary of discussions related to Article 9 Equal Recognition as a Persons before the Law’ (26 August 2004), available at: <http://www.un.org/esa/socdev/enable/rights/ahc4sumart09.htm>.
38 United Nations, ‘Report of 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 on its fourth session’, available at: <http://www.un.org/esa/socdev/enable/documents/ahc4reporte.doc>.
39 United Nations, ‘Daily summary of discussion at the fifth session’ (26 January 2005), available at: <http://www.un.org/esa/socdev/enable/rights/ahc5docs/ahc5sum26jan.doc>.
40 ibid.
41 Chile proposed the following wording ‘Pursuant to the principle of equal protection before the law in the exercise of human rights, states should guarantee adequate access to courts for PWD, facilitating their effective role as direct or indirect parties to contentious and non-contentious legal proceedings.’ In Ad Hoc Committee, ‘Daily summary of discussions at the fifth session’ (n 39).
42 ibid.
43 Ad Hoc Committee, ‘Article 13, Status of Discussions, Fifth Session: Report of the Coordinator’ (4 February 2005) available at: <http://www.un.org/esa/socdev/enable/rights/ahcstata13fisrepcoord.htm>.
44 ‘Letter dated 7 October 2005 from the Chairman to all members of the Committee’ UN Doc A/AC265/2006/1 (15 October 2005).
46 ‘Draft Article 13 on access to justice set out in the Chairman’s Letter dated 7 October 2005’ reads as follows: ‘States parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, facilitating their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including the investigative and other preliminary stages.’ In ‘Letter dated 7 October 2005 from the Chairman to all members of the Committee’ ibid, Annex I: Draft Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities—Submitted by the Chairman on the basis of discussion by the Ad Hoc Committee, available at: <http://www.un.org/esa/socdev/enable/rights/documents/aac265-2006-1e.doc>.
47 ‘Report of 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 on its seventh session’ UN Doc A/AC265/2006/2 (13 February 2006).
48 Ad Hoc Committee, ‘Daily summary of discussion at the seventh session’ (18 January 2006) <http://www.un.org/esa/socdev/enable/rights/ahc7docs/ahc7sum18jan.doc>.
49 Naomi Roht-Arriaza, ‘State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law’ (1990) 78 California Law Review 449.
51 CRPD Committee, ‘Concluding Observations on El Salvador’ UN Doc CRPD/C/SLV/CO/1 (2013) para 30(b).
54 See Art 2 CRPD, for a definition of ‘discrimination’ which includes a failure to provide a reasonable accommodation.
56 For promising practices and identified challenges in achieving these communication and environmental accessibility measures in ten EU member states, see Mental Disability Advocacy Center, ‘Access to Justice for Children with Mental Disabilities: International Standards and Findings of Ten EU Member States’ (2015), available at: <http://www.mdac.org/sites/mdac.info/files/access_to_justice_children_ws2_standards_and_findings_english.pdf>.
57 Frederic Mégret, ‘The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?’ (2008) 30 Human Rights Quarterly 494, 512.
59 CRPD Committee, ‘Guidelines on article 14 of the Convention on the Rights of Persons with Disabilities: The right to liberty and security of persons with disabilities’ para 14.
68 Anna Lawson and Eilionóir Flynn, ‘Disability and Access to Justice in the European Union: Implications of the UN Convention on the Rights of Persons with Disabilities’ (2013) 4 European Yearbook of Disability Law 7.
69 ibid.
79 Lawson and Flynn (n 58).
80 See eg Caroline Gooding, ‘Disability Discrimination Act: From Statute to Practice’ (2000) 20 Critical Social Policy 533.
81 Frances Gibson, ‘Article 13 of the Convention on the Rights of Persons with Disabilities—A Right to Legal Aid?’ (2010) 15 Australian Journal of Human Rights 123, 131.
82 Eilionóir Flynn, ‘Making Human Rights Meaningful for People with Disabilities: Advocacy, Access to Justice and Equality before the Law’ (2013) 17 International Journal of Human Rights 491.
83 Neta Ziv, ‘Witnesses with Mental Disabilities: Accommodations and the Search for Truth—The Israeli Case’ (2007) 27 Disability Studies Quarterly 51.
84 Innocentia Mgijima, ‘Access to Justice for Disabled Child Victims of Sexual Crimes in Zimbabwe: The Implications of Article 13 of the United Nations Convention on the Rights of Persons with Disabilities’ (LLM thesis, NUI Galway August 2013).
86 Office of the Official Solicitor and the Public Trustee, The Official Solicitor and the Public Trustee: Annual Report 1 April 2011–31 March 2012 (London 2012) 13.
90 Lucy Series, ‘Legal Capacity and Participation in Litigation: Recent Developments in the European Court of Human Rights’ (2015) 5 European Yearbook on Disability Law 103.
94 CRPD Committee, Communication No 12/2013, A M v Australia UN Doc CRPD/C/13/D/12/2013 (29 May 2015).
97 CRPD Committee, ‘Concluding Observations on El Salvador’ UN Doc CRPD/C/SLV/CO/1 (2013) para 30(c).
98 CRPD Committee, ‘Concluding Observations on Australia’ (n 78) para 28.
102 Ana Laura Aiello, ‘Argentina’ in Anna Lawson and Lisa Waddington, Interpreting and Domesticating the UN Convention on the Rights of Persons with Disabilities: A Comparative Analysis of the Role of Courts (OUP 2017).
103 NGA Por Proceso De Restricción De Capacidad, Juzgado Civil de Personas y Familia de Sexta Nominación de Salta, judgment (18 June 2015).
104 Peruvian National Confederation of People with Disabilities, Alternative Report on the Compliance with the Convention on the Rights of Persons with Disabilities (Lima 2012) 10.
105 UNGA, ‘Report of the United Nations High Commissioner for Human Rights: Access to justice for children’ UN Doc A/HRC/25/35 (2013).
106 UNGA, ‘Access to justice in the promotion and protection of the rights of indigenous peoples: restorative justice, indigenous juridical systems and access to justice for indigenous women, children and youth, and persons with disabilities’, Study by the Expert Mechanism on the Rights of Indigenous Peoples UN Doc A/HRC/27/65 (2014).
