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Human Rights Council debates access to justice for persons with disabilities

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7 March 2018

Human Rights Council
AFTERNOON 

7 March 2018

The Human Rights Council this afternoon held its annual interactive debate on the rights of persons with disabilities, with a focus on article 13 of the Convention on the Rights of Persons with Disabilities regarding access to justice.

The panellists were María Soledad Cisternas Reyes, Special Envoy of the Secretary-General on Disability and Accessibility; Catalina Devandas Aguilar, Special Rapporteur on the rights of persons with disabilities; Theresia Degener, Chair of the Committee on the Rights of Persons with Disabilities; Oumarou Siddo Nouhou, African Disability Forum and International Disability Alliance; and Ana Peláez Narváez, Executive Vice-President of CERMI Women’s Foundation and Vice-President of the European Disability Forum.

In her opening remarks, Kate Gilmore, United Nations Deputy High Commissioner for Human Rights, said that the obligations under the Convention on the Rights of Persons with Disabilities stretched far beyond the provision of access to public buildings or international sign language.  Positive examples of improvement of the situation concerning access to justice were enlisted, but all countries had to do better and more.

María Soledad Cisternas Reyes, Special Envoy of the Secretary-General on Disability and Accessibility, noted that the principal challenge before the judiciary in the twenty-first century concerning persons with disabilities was access to justice.  She presented the idea of a model court or tribunal that was open to diversity, and she reiterated that the application of the human rights model of the Convention in all procedural tasks meant the guarantee of article 13.

Catalina Devandas Aguilar, Special Rapporteur on the rights of persons with disabilities, highlighted the relationship between the right to justice and the right to legal capacity.  Though the right to legal capacity was vital for ensuring access to justice, many of the violations of the right to legal capacity were legitimized by the justice system themselves and courts declared persons with disabilities unfit to decide for themselves.

Theresia Degener, Chair of the Committee on the Rights of Persons with Disabilities, stated that in the 10-year history of the Committee on the Rights of Persons with Disabilities, the denial or limitation of access to justice and the denial of legal capacity had been matters of concern in all procedures conducted.  The human rights model, as enshrined in the Convention on the Rights of Persons with Disabilities, called for an immediate paradigm shift in justice systems.

Oumarou Siddo Nouhou, African Disability Forum and International Disability Alliance, outlined the difficulties in accessing justice in West Africa, namely Niger, for women and children with disabilities, due to the lack of personnel and training.  Capacity building in the justice system was needed, as well as awareness-raising activities since the access to justice of persons with disabilities was still a new subject.

Ana Peláez Narváez, Executive Vice-President of CERMI Women’s Foundation and Vice-President of the European Disability Forum, said that women with disabilities might live in States where legislation proclaimed that all people were equal before the law, yet access to justice continued to be denied to millions of women with disabilities worldwide.  There was a lack of accessibility at all stages to report cases of violence and discrimination, but also a lack of awareness among many women with disabilities that they were rights holders.

In the ensuing discussion, speakers agreed that access to justice was a basic principle of human rights.  However, barriers existed at all stages of the justice system that compounded disadvantage experienced by persons with disabilities.  There was often a lack of appropriate procedural support and erroneous assessment.  Persons with disabilities needed to obtain appropriate legal awareness in order to access justice, whereas Governments could adopt legal aid for them and conduct legal education.  Some speakers pointed out that women and girls with disabilities faced increased discrimination that stemmed from harmful stereotypes based on gender and disability.  They faced challenges in making autonomous decisions about their sexual and reproductive health.

Speaking were Egypt, Finland, Mexico on behalf of Mexico, Indonesia, Republic of Korea, Turkey and Australia, European Union, Singapore on behalf of the Association of Southeast Asian Nations, Jordan on behalf of the Arab Group, Togo on behalf of the African Group, Timor-Leste on behalf of the Community of Portuguese Language Countries, Pakistan, Mexico, United Arab Emirates, United States, Paraguay, India, Israel, Iraq, Ecuador, Azerbaijan, Slovenia, Namibia, New Zealand, Venezuela, Greece and Australia.

The following civil society representatives also took the floor: Australian Human Rights Commission, Centre for Reproductive Rights, Charitable Institute for Protecting Social Victims, International Volunteerism Organization for Women, Education and Development VIDES (in a joint statement with Istituto Internazionale Maria Ausiliatrice delle Salesiane di Don Bosco), Action Canada for Population and Development, and Khiam Rehabilitation Centre for Victims of Torture.

The Council will resume its work at 10 a.m. on Thursday, 8 March, when it will hold an interactive dialogue with the High Commissioner for Human Rights on his annual report and oral update.  In the afternoon, the Council is scheduled to hear presentations of the report of the Intergovernmental Working Group on Transnational Corporations, and of the thematic reports of the Office of the High Commissioner for Human Rights.

Opening Statements

EVAN P. GARCIA, Vice-President of the Human Rights Council, said that in its resolution 31/6 the Council decided that the annual interactive debate on the rights of persons with disabilities would focus on article 13 of the Convention on the Rights of Persons with Disabilities, regarding access to justice.  He stated that the debate would provide a valuable contribution to the human rights of persons with disabilities.

KATE GILMORE, United Nations Deputy High Commissioner for Human Rights, said that the obligations of the Convention on the Rights of Persons with Disabilities stretched far beyond the provision of access to public buildings, or international sign language, important as those measures were.  Ms. Gilmore informed the Council that she would speak in plain language, using everyday words instead of jargon so that information could be more easily understood.  If a country had promised to do something in a declaration it had do it.  People with disabilities should be treated fairly by police, judges and lawyers.  However, people with disabilities were often treated unfairly and were not even respected or believed.  They had an extra hard time understanding how to get to court, so they had to be able to speak to the court by video or from home.  The good news was that many countries had improved the situation concerning courts, such as the Supreme Court of Colombia and the Supreme Court of Mexico.  In Finland, an accessible website had been designed.  However, some other countries had not been doing what they promised.  Persons with disabilities had to be able to work as prosecutors, judges, members of jury.  In Chile blind and deaf people could be magistrates, in Ethiopia blind people could be judges, in Peru blind people were able to take the entry exam to become a judge, whereas in Germany nearly 70 blind persons were judges.  The Committee on the Rights of Persons with Disabilities was assessing the state of play, and concluded that persons with disabilities had been offered too little support.  Every year on 8 March, the world was reminded that women and men were equal, they had to remember that women with disabilities were also equal.  Many countries made good promises but all countries should do better and more.  All countries should sign up to the Convention on the Rights of Persons with Disabilities and the Optional Protocol.

Statements by the Panellists 

MARIA SOLEDAD CISTERNAS REYES, Lawyer and Political Scientist, United Nations Special Envoy on Disability and Accessibility, began her presentation with the following question: what was the challenge before the judiciary in the twenty-first century with regard to the rule of law and how it related to persons with disabilities?  The obvious answer was access to justice.  The Special Envoy proposed the idea of a model court or tribunal that was open to diversity and which included all the various aspects pertaining to persons with disabilities.  There was a need to establish under what circumstances persons with disabilities went to court, and Chile had provided a great example.  In order to achieve this, the international community needed to look at two key elements.  First, elements provided by the Convention on the Rights of Persons with Disabilities, which aimed at implementing the guarantee of access to justice to persons with disabilities on an equal basis with others.  These were procedural accommodations, training, accessibility, legal capacity, and substantive aspects of the human rights model for persons with disabilities.  The other element was provided by the interconnection of these with the contributions of the 2030 Agenda and the Sustainable Development Goal 16 in terms of access to justice for all.

The application of the human rights model of the Convention in all procedural tasks meant the guarantee of article 13 which referred to the procedural accommodations in their most varied range, constituting a particular and precise form of adaptation.  Furthermore, States parties should promote adequate training for those working in the administration of justice, including police and prison personnel.  Third, the interdependence of human rights gave another relevant factor, which was universal accessibility.  Fourth, the interdependence of human rights placed another key factor, which was the full exercise of legal capacity by persons with disabilities, including with support and safeguards when necessary, according to article 12 of the Convention.  Fifth, in order that the human rights of persons with disabilities had tools for their complete enforceability, the existence and availability of adequate judicial resources to claim the lack or partial fulfilment of the rights or violation thereof, were indispensable.  And finally, while access to justice had a procedural character, those who administered justice had to also aim to raise awareness of the human rights model.
 
CATALINA DEVANDAS AGUILAR, Special Rapporteur on the rights of persons with disabilities, noted that the right to justice was a fundamental right which was a prerequisite for the enjoyment of all other rights.  She highlighted the relationship between the right to justice and the right to legal capacity.  Persons with disabilities faced major difficulties in exercising their right to legal capacity and many were submitted to guardianship regimes, sterilized and medically treated against their will.  The right to legal capacity was absolutely vital for ensuring access to justice.  Sadly, many of the violations of the right to legal capacity were legitimized by the justice systems themselves.  Surprisingly, it was courts, which were supposed to protect persons with disabilities, that declared them unfit to decide for themselves.  States had to adopt all appropriate measures to facilitate participation and exercise of legal capacity, and to supply appropriate training for all those working in the justice system.  Justice systems had not yet taken on the paradigm of change in the understanding of the rights of persons with disabilities.  But there was some progress in some countries.  Justice that was not for everyone was certainly not justice, Ms. Devandas Aguilar concluded.

THERESIA DEGENER, Chair of the Committee on the Rights of Persons with Disabilities, said that access to justice was one of the most fundamental human rights as it concerned the right to legal capacity, a precondition for the enforcement of other rights.  Yet many disabled persons were denied that right because of their disability.  Within the last 10 years, the Committee on the Rights of Persons with Disabilities had reviewed over 60 State party reports and had taken decisions regarding nearly 20 registered individual communications.  The denial or limitation of access to justice had been a matter of concern in all of those procedures.  Persons with disabilities were denied access to justice because courts and law or administrative buildings were inaccessible, or because print documents and oral proceedings excluded persons who were deaf, blind or intellectually disabled.  In other words, persons with disabilities were denied their right to legal capacity.  A violation of the right to access to justice could happen when judges, police officers or social workers did not know the rights of persons with disabilities.  Five indicators for the implementation of article 13 of the Convention on the Rights of Persons with Disabilities could be taken in guidelines on periodic reporting which were adopted in 2016 based on in-depth analysis, and many States did not come close to fulfilling those requirements.  Sign language was often not provided sufficiently and there had not been enough training on the Convention on the Rights of Persons with Disabilities.  Concluding observations of the Committee on the Rights of Persons with Disabilities often recommended providing truly accessible communication in formats such as Braille, tactile formats, Easy Read and other alternative formats.  In her concluding remarks, Ms. Degener stated that the human rights model, as enshrined in the Convention on the Rights of Persons with Disabilities called for an immediate paradigm shift in justice systems.

OUMAROU SIDDO NOUHOU, African Disability Forum and International Disability Alliance, spoke of difficulties in accessing justice in West Africa, namely Niger, for women and children with disabilities, due to the lack of personnel and training.  Building capacity in the justice system was the first pillar that needed to be implemented.  That endeavour built upon current activities, including raising awareness and community representatives.   Access to the justice system by persons with disabilities in Niger was still a new subject.  The second pillar was based on the system of referrals, whereas the third pillar focused on awareness raising.  West African countries needed to accelerate the implementation of the Convention on the Rights of Persons with Disabilities, and the training in the judiciary and courts.  There was not a single sign language interpreter in Niger.

ANA PELAEZ NARVAEZ, Executive Vice-President of CERMI Women’s Foundation and Vice-President of the European Disability Forum, noted that on the eve of International Women’s Day, women with disabilities brought to the Human Rights Council their demands as women in the area of justice.  Women with disabilities might live in States whose constitutions proclaimed that all people were equal before the law, but the reality showed that access to justice continued to be denied to millions of women with disabilities worldwide.  There was lack of accessibility at all stages to report cases of violence and discrimination, as well as the lack of both female and male practitioners.  More seriously, there was a lack of awareness among many women with disabilities that they were rights holders.  Thousands of women with disabilities were currently legally incapacitated and could not access justice when their rights were violated.  Instead, they needed an intermediary or a guardian.  Ms. Peláez Narváez called for the complete eradication of legal incapacitation and called for effective supported decision-making.  States should publicly recognize the human rights violations to which thousands of girls and women with disabilities had been subjected to through unconsented sterilization in the past and present, and should adopt reparation measures.

Discussion

Egypt said that the Government was participating at the ministerial level, demonstrating its commitment to the debate and the Convention on the Rights of Persons with Disabilities.  Egypt’s Constitution prohibited all discrimination and provided quotas for persons with disabilities in the Council of Deputies. Finland, speaking on behalf of Nordic countries, said that persons with disabilities were often in a more vulnerable position to claim their rights.  The Nordic Council of Ministers had commissioned an expert report on gender-related violence and disability, highlighting that victims of violence had to have access to information about what violence was and where they could turn for help. Mexico, speaking on behalf of Mexico, Indonesia, Republic of Korea, Turkey and Australia,
expressed their commitment to remove all obstacles that persons with disabilities faced in seeking access to justice.  Examples of good practices contained in the report were welcomed and the importance of the training of public authorities was underlined.

European Union stressed the absolute interdependence between the rights of access to justice and to equal recognition before the law.  Panellists were asked to share their views and recommendations on the remaining challenges associated with the need to respect the legal capacity of persons with psycho-social disabilities. Singapore, speaking on behalf of the Association of Southeast Asian Nations, said that great importance was placed on the rights of persons with disabilities as stipulated in the Bali Declaration on the enhancement of the role and participation of persons with disabilities in the Association of Southeast Asian Nations’ community.  Closer cooperation with the United Nations on promoting the rights of persons with disabilities in the region was welcomed.

Jordan, speaking on behalf of the Arab Group, said they placed great importance on the rights of persons with disabilities.  The Arab Group had taken many legislative and non-legislative measures in order to protect the rights of persons with disabilities, and the laws prohibited any discrimination against them.  Through training and empowerment, persons with disabilities could be active participants. Togo, speaking on behalf of the African Group, said access to justice was a fundamental right and an essential prerequisite to all rights.  Article 18 of the African Charter of Human and Peoples’ Rights guaranteed these rights.  In addition, the African Commission of Human and Peoples’ Rights had adopted a Protocol on the Rights of Persons with Disabilities. Timor-Leste, speaking on behalf of the Community of Portuguese Language Countries, confirmed their commitment to the Convention of the Rights of Persons with Disabilities, informing of their aims to create a structure to bring together governments to this effect.  An aspect that must not be overlooked was the empowerment of persons with disabilities.  What model was the most effective to guarantee access to legal support or legal aid?

Pakistan said the Convention clearly stipulated the obligation of States to ensure access to a wide range of support services to persons with disabilities, as well as to ensure the assistance required by children with disabilities for achieving their fullest possible social integration and individual development. Mexico had a normative framework to ensure that persons with disabilities had access to justice on an equal footing with others.  Appropriate and decent treatment, free legal representation and advice in these procedures was also needed.  A protocol had been drafted to this effect, and had been sent to all prosecutors in the country. United Arab Emirates said it had dedicated a page on the Government website to raise awareness about the right to accessibility and legal assistance.  It hoped that the panel would reach practical conclusions that would enable States to improve and implement international standards. United States noted that under its federal law, persons with disabilities were protected from discrimination in State and local government services, programmes and activities, including law enforcement agencies, justice system entities, and juvenile and adult corrections agencies.  

Australian Human Rights Commission, in a video statement, underlined that access to justice was a basic principle of human rights.  Yet barriers existed at all stages of the justice system that compounded disadvantages experienced by persons with disabilities.  There was often a lack of appropriate procedural support and erroneous assessment.

Centre for Reproductive Rights pointed out that women and girls with disabilities faced increased discrimination that stemmed from harmful stereotypes based on gender and disability.  They faced challenges in making autonomous decisions about their sexual and reproductive health. Charitable Institute for Protecting Social Victims noted that persons with disabilities needed to obtain appropriate legal awareness in order to access justice.  Governments could adopt legal aid for persons with disabilities and conduct legal education for them.

Paraguay stated that it had taken important steps towards the protection of the rights of persons with disabilities, such as the adoption of the National Plan of Action for the Rights of Persons with Disabilities in 2016.  As of 2012, vulnerable persons could receive free of charge legal aid. India was of the view that multi-dimensional accommodations and adjustments in the existing infrastructure were imperative to ensure access to justice to persons with disabilities under article 13 of the Convention.  Since the Convention had seen a paradigm shift from a charity to a rights-based approach, a progressive realization of all obligations under the Convention was more desirable to ensure access to justice. Israel had ratified the Convention in 2012, and was fully committed to its obligations thereunder.  In Israel, according to the Investigation and Testimony Procedures Law, persons with intellectual disabilities and autistic persons were entitled to be investigated by a specially trained social worker outside of the police premises, and not by police personnel. Iraq upheld the principle of non-discrimination against persons with disabilities.  Iraq had acceded to the Convention in 2013, and had adopted that same year a law which ensured the rights of persons with disabilities.

Ecuador said a dialogue between the State and civil society had resulted in numerous persons with disabilities holding leading positions.  Tomorrow was international women’s day, and States had to act to ensure that there was gender equality. Azerbaijan said the Justice Academy of Azerbaijan studied the precedents of the European Court on Human Rights and other international documents on human rights during mandatory training sessions.  These were intended for the recruitment to the prosecutors’ office and advocacy candidates, as well as during the first long-term training programmers of candidates for judge positions. Slovenia said the Slovenian Court Rules, amended in 2017, instructed the courts to include, in every invitation to the court hearings, a special notification which touched upon the right to equal participation in the proceedings by participants with disabilities.  It also called upon them to inform the court in advance on whether they would exercise their right to equal participation. Namibia said that as a State party to the Convention, it had taken steps to ensure effective access to justice for persons with disabilities, on an equal basis with others, in accordance with article 13 of the Convention.  Previously, in 1997 and in 2014, it had adopted a national policy which addressed every aspect regarding the rights of persons with disabilities.

New Zealand was working together with Mexico on a resolution on this topic at the current Council session.  In courts and tribunals, the Government provided a range of services to implement article 13, ensuring that persons with disabilities could participate in legal proceedings on an equal basis. Venezuela said that under the Constitution everyone had access to justice; the national council for persons with disabilities was functional and out of 40 tribunals, 15 had been adapted for persons with disabilities.  Full inclusion of persons with disabilities could be achieved only when political will was present. Greece had undertaken efforts to ensure access to justice to persons with disabilities and certain best practices had been adopted concerning the training of judges, prosecutors and lawyers.  What recent legislative change had had the greatest impact on access to justice of persons with disabilities? Australia said its national partnership agreement on legal assistance services 2015-2020 had been providing approximately $ 1.3 billion over five years in funding to community legal centers, and persons with disabilities were priority clients under this agreement.  What good practices were recommended to States to ensure the meaningful participation of persons with disabilities in decision-making regarding access to justice.

International Volunteerism Organization for Women, Education and Development VIDES (in a joint statement with Istituto Internazionale Maria Ausiliatrice delle Salesiane di Don Bosco), recommended that States eliminate multiple forms of discrimination in the administration of justice faced by persons with disabilities due to their impairment, sex, age, ethnicity, indigenous background, sexual orientation and gender identity.  It also recommended the promotion of active involvement and participation of these persons in the administration of justice on an equal basis. Action Canada for Population and Development, highlighting the discrimination faced by women, girls and trans persons with disabilities, said widespread institutionalization through psychiatric and protection systems rendered impossible their access to justice.  It created a situation in which sexual assault and other forms of gender-based violence such as forced and coerced sterilization and contraception occurred inside these institutions and remained in impunity and without proper redress. Khiam Rehabilitation Centre for Victims of Torture said the situation in Yemen was an unprecedented challenge to persons with disabilities, who suffered disproportionately, due to their reduced mobility and who were more exposed to injuries.  The rehabilitation centres were inundated with amputation cases due to indiscriminate bombing by Saudi Arabian targeting of hospitals.

Concluding Remarks

MARIA SOLEDAD CISTERNAS REYES, Special Envoy of the Secretary-General on Disability and Accessibility, said access to justice for persons with disabilities in the twenty-first century meant there needed to be a systemic reform and overhaul.  There was no question of seeing little reforms here and there.  The people concerned were entitled to express themselves on how they understood access to justice.  Judges were often open to including different viewpoints.  Therefore, she encouraged State party delegations submitting reports to Committees to include judges’ proposals for the implementation of access.

CATALINA DEVANDAS AGUILAR, Special Rapporteur on the rights of persons with disabilities, emphasized again the link between the right to legal capacity and access to justice.  Though formal barriers could be removed, sometimes informal limits which had to do with stereotypes and prejudices remained.  Independent monitoring in detention centers had to be established.  For all those elements to be ensured, training of judicial staff was a prerequisite.

THERESIA DEGENER, Chair of the Committee on the Rights of Persons with Disabilities, commended New Zealand for talking in plain language.  Ms. Degener shared with the Council the story of Gabriela, who was living together with 10 other intellectually disabled women, who had been in an institution under a legal guardianship of a doctor who abused them and performed forced abortion on all of them.  Those women could not go to a court or sue the doctor because they had been under legal guardianship, and it was a non-governmental organization that assisted them with their appeal, though the women had not been trusted in court initially.  Abolishing legal guardianship would be the example of the best legal reform.

OUMAROU SIDDO NOUHOU, African Disability Forum and International Disability Alliance, suggested looking at the model of education.  There were now many improvements in the education system for persons with disabilities.  The Sustainable Development Goals provided an opportunity to better integrate the right of persons with disabilities in policy-making, and to ensure the participation of persons with disabilities.  He reminded that only 0.05 per cent of the funds in Niger were set aside for the rights of persons with disabilities.  Thus, more investment of funds was necessary.

ANA PELAEZ NARVAEZ, Executive Vice-President of CERMI Women’s Foundation and Vice-President of the European Disability Forum, reminded of the lack of access to justice by women and girls with disabilities.  More studies needed to be carried out to make a clear link between gender and disability.  That was the only way to ensure equality.  Very often, judicial rulings were contrary to the United Nations human rights conventions.

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