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International and Guidelines on Access to for Persons with Disabilities

Endorsed by

International Principles and Guidelines on Access to Justice for Persons with Disabilities

Geneva, August 2020

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FOREWORD BY THE UNITED HIGH COMMISSIONER FOR HUMAN

Persons with disabilities are a primary for persons with disabilities on an equal basis focus of my Office’s work, in part because with others. they are among those left furthest behind. For far too long, they have been ignored, The Principles and Guidelines will be of neglected and misunderstood and their benefit to judicial actors, national simply denied. , procedures and rights and civil society, including practices continue to discriminate against organizations of persons with disabilities, persons with disabilities, and the justice to strengthen awareness-raising activities, system has a critical role to play in preventing training and the provision of accommodations those outcomes and providing effective to ensure respect for the rights of persons with reparations when they occur, particularly disabilities and their enhanced representation when they stem from unfair laws. and participation within proceedings. In addition, they provide a framework for Guaranteeing access to justice is the inclusion and participation of persons indispensable to democratic governance with disabilities in diverse roles within the and the rule of , as well as to combating administration of justice (e.g. judge, juror inequality and exclusion. Since the adoption and witness) as a democratic imperative of the on the Rights of Persons involving and reflecting all facets of society with Disabilities, there has been a blueprint – in effect, shaping the society in which we for achieving inclusion based on the human live. The Principles and Guidelines are an rights-based approach to disability. The indispensable contribution to achieving justice International Principles and Guidelines on for all. Access to Justice for Persons with Disabilities, developed under the leadership of the Special Rapporteur on the rights of persons with disabilities, Catalina Devandas Aguilar, are firmly rooted in the Convention and I welcome them as the first tool of their kind to provide Michelle Bachelet comprehensive guidance and practical High Commissioner instruction on how to ensure access to justice for Human Rights

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FOREWORD BY JUAN MANUEL FERNÁNDEZ MARTÍNEZ

The – namely, the subjugation establish with absolute clarity the minimum of the people and public powers to the due and indispensable limits for the process of law – is the cornerstone of any of fundamental rights, but must do so in democracy. However, alone this is not enough combination with measures to remove the to maintain a democracy; the formulation of obstacles that impede or hinder its fullness a legal order must be based on a scrupulous and to promote the equality of all people. respect for human rights, constituted, throughout the history of democratic nations, The International Principles and Guidelines by a series of fundamental rights that form on Access to Justice for Persons with the backbone of peaceful, inclusive and Disabilities, which I am honoured to preface, egalitarian coexistence. reflect the enormous work accomplished over the past few years by the United Nations Of these principles, the ones that stand human rights mechanisms on this essential out are the equality of all persons and the right of access to justice. absolute respect for human , regardless of personal, family or social circumstances. As mentioned above, there is no That is, equality before , without democracy without respect for the rule of discrimination based on age, birth, race, law, and there is no true respect for the disability, sex, , opinion or any other law without a judicial power guaranteeing personal or social condition or circumstance; compliance therewith. The duty to promote and dignity, which in democratic legal equality among all persons, especially systems is considered as the inherent quality to ensure that everyone has the right to of the human condition from which emanate access justice on an equal basis with others, fundamental rights, together with the free rests with the . The impartiality of development of personality, inviolable and judges in the resolution of conflicts cannot inalienable precisely because they are be confused with a cold and insensitive fundamental. to social , since that reality acts as a criterion for interpretation in the The mere formulation of these principles, application of laws. As judges, we guarantee however, is not enough. Human rights compliance with laws and with it the reality cannot be limited to a simple show of of democratic coexistence. We are also the intentions or rhetorical declarations ultimate guarantors of human rights. In the devoid of any practical effectiveness. interpretation and enforcement of the law, True democratic coexistence, sustained by it is possible, and necessary, to establish respect for the equality and dignity of all a dialogue with the other powers of the persons, requires active policies on the State, stating the reasons that justify certain part of public powers. The legal system must changes in legal .

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While it is not possible to summarize in Respect for the rights of all persons, such a short space all the initiatives that the including persons with disabilities, the United Nations human rights mechanisms fulfilment of their full equality and the have promoted over the past few years, I protection of their dignity reveal what kind of would, however, like to highlight the definitive society we are and will be. impetus given to the full recognition of the legal capacity of persons with disabilities. The right to recognition of legal capacity is regulated in article 12 of the Convention on the Rights of Persons with Disabilities, without prejudice to the adoption of the support measures that are necessary for the exercise Juan Manuel Fernández Martínez of such capacity. This impetus has found Member of the General Council of the expression in a number of legal systems. Judiciary, Spain

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BACKGROUND

In November 2018, the Special in these activities and contributed to the Rapporteur on the rights of persons with development of the International Principles disabilities, Catalina Devandas Aguilar, and Guidelines on Access to Justice for together with the Office of the United Persons with Disabilities. Organizations of Nations High Commissioner for Human persons with disabilities have been consulted Rights (OHCHR) and with the support of the and involved throughout the entire process. Government of Spain, hosted an expert group meeting in Geneva to discuss implementation Pursuant to General Assembly resolution of the rights to legal capacity and access 73/177, the Secretary-General will submit a to justice for persons with disabilities. report on the latest developments, challenges Following this meeting, the Special Rapporteur and good practices in human rights in the commissioned a study to identify the relevant administration of justice, including on the principles, interventions and strategies to situation of persons with disabilities in the ensure effective access to justice for persons administration of justice, to the Assembly at with disabilities on an equal basis with others. its seventy-fifth session (A/75/327). In the report, he recommends the development, in On 21 February 2020, the Special consultation with persons with disabilities, Rapporteur convened another expert group of international principles and guidelines meeting in Geneva to discuss the to on access to justice to support the efforts adopt international principles and guidelines of States on this issue. The efforts made to on access to justice for persons with develop such guidelines are acknowledged disabilities to guide States in implementing in the report. their international obligations in this field. The Principles and Guidelines have been The Committee on the Rights of Persons endorsed by the International Commission of with Disabilities and the Special Envoy of Jurists, the International Disability Alliance the Secretary-General on Disability and and the United Nations Development Accessibility have been closely involved Programme.

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INTRODUCTION

Everyone should, on an equal basis with for appropriate and effective safeguards others, enjoy the rights to equality before the to prevent abuse, including by ensuring law, to equal protection under the law, to that measures relating to the exercise a fair resolution of disputes, to meaningful of legal capacity respect the rights, will participation and to be heard. States must and preferences of the person; ensure equal access to justice for all persons (d) Ensure effective access to justice for with disabilities by providing the necessary persons with disabilities on an equal substantive, procedural, and age- and gender- basis with others, including through appropriate accommodations and support. the provision of procedural and age- The Principles and Guidelines are intended appropriate accommodations, in order to assist States and other actors to design, to facilitate their effective role as direct develop, modify and implement justice systems and indirect participants, including as that provide equal access to justice for all witnesses, in all legal proceedings, persons with disabilities, regardless of their including at investigative and other roles in the process, in accordance with the preliminary stages. Convention on the Rights of Persons with Disabilities. While access to justice is fundamental for the enjoyment and fulfilment of all human Articles 12 and 13 of the Convention rights, many barriers prevent persons with represent a shift in the legal disabilities from accessing justice on recognition of the of persons with an equal basis with others. Such barriers disabilities. The Convention rejects historically include restrictions on the exercise of legal entrenched understandings of disability that capacity; lack of physical access to justice deprive persons with disabilities of any means facilities, such as and stations; to exercise their will and preferences, which lack of accessible transportation to and in many countries have effectively resulted from these facilities; obstacles in accessing in their being denied access to justice and legal assistance and representation; lack of procedural safeguards on an equal basis with in accessible formats; paternalistic others. Among the key provisions of article or negative attitudes questioning the abilities 12 on equal recognition before the law and of persons with disabilities to participate article 13 on access to justice, States must: during all phases of the administration of justice; and lack of training for professionals (a) Recognize that persons with disabilities working in the field of justice. In the justice enjoy legal capacity on an equal basis system, persons with disabilities are often with others in all aspects of life; considered to be unworthy of, unable to (b) Take appropriate measures to provide benefit from or even likely to be harmed by access to persons with disabilities to the due process protection provided to all other support they may require in exercising citizens. Even fundamental rights, such as the their legal capacity; right to remain silent and the presumption (c) Ensure that all measures that relate to of innocence, may be denied either directly the exercise of legal capacity provide in law or policy or indirectly in custom and

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practice. The risks are extreme – e.g. false The Principles and Guidelines are not confessions, erroneous and unlawful intended to describe in detail a particular deprivation of . system of justice. Rather, drawing on the consensus of contemporary thought and on Justice systems reflect the values of the actual experience, they seek to out what societies in which they are embedded. is generally accepted as good practice in When interacting with the justice system and guaranteeing, without discrimination, equal officials, a person may be and fair access to justice, in accordance with confronted with individual and system , article 13 and other relevant provisions of the racism and structural inequality on a variety Convention. In implementing the Principles of grounds. While recognizing that these and Guidelines, States should be cognizant intersecting variables cannot be disentangled of and address multiple and intersectional and must be challenged as a whole, the discrimination in access to justice. Consistent Principles and Guidelines pinpoint the unequal with their obligations under the Convention, it access to justice that is the consequence of is also critically important that States closely , stigma and the lack of understanding consult with and actively involve persons about persons with disabilities by officials in with disabilities and their representative the justice system. In the context of defendants organizations. and suspects in criminal cases, wrongful can result from false confessions, The rights of individuals and the mistaken identification and official misconduct, obligations of States described herein apply which may be the consequence of coercion to all legal proceedings (civil, criminal and and lack of information and understanding administrative), regardless of forum or dispute by persons with disabilities. While the design resolution process, and during investigation, of courtrooms and the formal and technical arrest and other preliminary stages, as well language and procedures used in legal as post- stages, including in proceedings alienate anyone not familiar the provision of remedies. Accordingly, the with them, this experience of alienation is Principles and Guidelines will be useful for, exacerbated for persons with disabilities by among others, lawmakers, policymakers, the the physical and other barriers. Some persons judiciary, law enforcement and with disabilities may not understand or be officials, and persons with disabilities aware of the consequences of legal steps and their representative organizations. As or actions, underestimating the importance appropriate, they apply to all direct and of timely action. Complainants and victims indirect participants in all legal proceedings, with disabilities risk their testimonies not including, without limitation, suspects, being considered credible, thereby providing detainees, defendants, claimants, victims, impunity to the perpetrators of jurors, judicial officers, law enforcement against persons with disabilities. Hence, the officials and witnesses. importance of the Principles and Guidelines in facilitating effective access to justice for persons with disabilities.

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Despite the wide variety of legal, social, more conducive to the realization of the right of economic and geographical systems in the access to justice for persons with disabilities. world, States can and should align their laws, rules, regulations, guidelines, protocols, Persons with disabilities are entitled practices, and policies on these Principles to enjoy the standards contained in all and Guidelines. However, the Principles previously adopted international and and Guidelines are not intended to preclude regional human rights instruments that are innovation, provided that such innovation relevant to justice systems, access to justice complies with the Convention and the Principles and, more generally, the administration of and Guidelines and that it seeks to ensure justice on an equal basis with others without equal access to justice. Nor should they be discrimination. Some of those standards interpreted as limiting any other international, are referred to at the end of the present regional or national laws or standards that are document.

Catalina Devandas Aguilar Special Rapporteur on the rights of persons with disabilities

Danlami Basharu Chair of the Committee on the Rights of Persons with Disabilities

María Soledad Cisternas Reyes Special Envoy of the Secretary-General on Disability and Accessibility

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GLOSSARY OF TERMS

First responders: persons, such as police implementation of the Convention. States officers, emergency health-care workers are also under an obligation to ensure that or crisis workers, who are among those all services provided – including within the responsible for going immediately to the justice system – to persons with disabilities scene of an emergency or crisis to provide to prevent exploitation, violence and abuse, assistance. in accordance with article 16 (3) of the Convention, are effectively monitored by Intermediaries (also known as “facilitators”): independent authorities. persons who work, as required, with justice system personnel and persons with disabilities Reasonable accommodation: all necessary to ensure effective communication during and appropriate modifications and legal proceedings. They support persons adjustments not imposing a disproportionate with disabilities to understand and make or undue burden, where needed in a informed choices, making sure that things particular case, to ensure to persons with are explained and talked about in ways that disabilities the enjoyment or exercise on an they can understand and that appropriate equal basis with others of all human rights accommodations and support are provided. and fundamental freedoms.2 Intermediaries are neutral and they do not speak for persons with disabilities or for the Procedural accommodation: all necessary and justice system, nor do they lead or influence appropriate modifications and adjustments decisions or outcomes. in the context of access to justice, where needed in a particular case, to ensure the Legal capacity: the capacity to be both a participation of persons with disabilities holder of rights and an actor under the law. on an equal basis with others. Unlike Legal capacity to be a holder of rights entitles reasonable accommodations, procedural persons to full protection of their rights by accommodations are not limited by the the legal system. Legal capacity to act under concept of “disproportionate or undue the law recognizes that person as an agent burden”.3 with the power to engage in transactions and create, modify or end legal relationships.1 Representative organization of persons with disabilities: organizations that are Monitoring mechanisms: such mechanisms led, directed and governed by persons include national human rights institutions, with disabilities. They are established national preventive mechanisms and bodies predominantly with the aim of collectively created under article 33 (2) of the Convention acting, expressing, promoting, pursuing on the Rights of Persons with Disabilities that and/or defending the rights of persons with have a specific role in monitoring the disabilities.4

1 Committee on the Rights of Persons with Disabilities, general 2 Convention on the Rights of Persons with Disabilities, art. 2. comment No. 1 (2014) on equal recognition before the law, 3 A/HRC/34/26, para. 35. para. 12. 4 Committee on the Rights of Persons with Disabilities, general comment No. 7 (2018) on the participation of persons with disabilities, including children with disabilities, through their representative organizations, in the implementation and monitoring of the Convention, para. 11.

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Substituted decision-making: when legal persons concerned, as opposed to being capacity is removed from persons, even if based on the will and preferences of such this is in respect of a single decision; or persons.5 substitute decision makers (i.e. guardians, guardians ad litem, attorneys or experts) Universal design: the design of products, are appointed by someone other than the environments, programmes, devices and persons concerned against their will; or services to be usable by all people, to the decisions are made by substitute decision greatest extent possible, without the need for makers based on the “best interests” of the adaptation or specialized design.6

5 General comment No. 1, para. 27. 6 Convention on the Rights of Persons with Disabilities, art. 2.

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International Principles and Guidelines on Access to Justice for Persons with Disabilities

Principle 1 6

All persons with disabilities have legal Persons with disabilities have the right to free capacity and, therefore, no one shall be or affordable legal assistance. denied access to justice on the basis of disability. Principle 7 Principle 2 Persons with disabilities have the right to participate in the administration of justice on Facilities and services must be universally an equal basis with others. accessible to ensure equal access to justice without discrimination of persons with disabilities. Principle 8

Persons with disabilities have the rights Principle 3 to report complaints and initiate legal proceedings concerning human rights Persons with disabilities, including children violations and crimes, have their complaints with disabilities, have the right to appropriate investigated and be afforded effective procedural accommodations. remedies.

Principle 4 Principle 9

Persons with disabilities have the right to Effective and robust monitoring mechanisms access legal notices and information in a play a critical role in supporting access to timely and accessible manner on an equal justice for persons with disabilities. basis with others. Principle 10 Principle 5 All those working in the justice system must be Persons with disabilities are entitled to all provided with awareness-raising and training substantive and procedural safeguards programmes addressing the rights of persons recognized in on an equal with disabilities, in particular in the context of basis with others, and States must provide the access to justice. necessary accommodations to guarantee due process.

12 INTERNATIONAL PRINCIPLES AND GUIDELINES ON ACCESS TO JUSTICE FOR PERSONS WITH DISABILITIES

Principle 1 All persons with disabilities have legal capacity and, therefore, no one shall be denied access to justice on the basis of disability

GUIDELINES

1.1 States shall guarantee that persons with (e) Repeal or amend all laws, regulations, disabilities enjoy legal capacity on an policies, guidelines and practices equal basis with others and, where that establish and apply doctrines of necessary, shall provide the support and “unfitness to stand trial” and “incapacity accommodations necessary to exercise to plead”, which prevent persons with legal capacity and guarantee access to disabilities from participating in legal justice. processes based on questions about or determinations of their capacity; (f) Repeal or amend all laws, regulations, 1.2 To that end, States shall: policies, guidelines and practices that restrict or exclude witnesses with (a) Ensure that all persons with disabilities disabilities from presenting testimony are considered to have legal capacity, based on assessments of their capacity and the right to act on and exercise to testify; legal capacity; (g) Repeal or amend all laws, regulations, (b) Recognize and assume the full capacity policies, guidelines and practices and right of persons with disabilities that authorize or otherwise empower to participate in the proceedings of all medical professionals to be the sole or courts, and forums; preferred “experts” in determining or (c) Ensure that constructs such as “cognitive opining on a person’s capacity to make incapacity” and “mental incapacity”, as decisions, to testify or for any other determined, for instance, by functional purpose; or mental assessments, are not (h) Repeal or amend all laws, regulations, used to restrict a person’s right to legal policies, guidelines and practices capacity; preventing persons with disabilities from (d) Repeal or amend all laws, regulations, initiating and pursuing legal claims; policies, guidelines and practices that (i) Create an actionable and directly or indirectly restrict the legal enforceable right to receive the capacity of persons with disabilities, individually determined procedural including those that allow for substituted accommodations, including support, decision-making and those that require necessary to enable persons with that a person be “of sound mind” to disabilities to participate effectively in take any action, thereby excluding all proceedings in any , or persons with disabilities from equal forum; access to justice;

PRINCIPLE 13

(k) Ensure that persons who have been declared to be without capacity for any purpose have the right to appeal or otherwise seek restoration of their legal capacity and have access to legal assistance to pursue their claims; (l) Establish or support alternative justice mechanisms, such as , alternative dispute resolution mechanisms, and cultural and social

forms and forums of justice, that are available to persons with disabilities on an equal basis with others, without regard for any construct of capacity to participate; (m) Repeal or amend laws, regulations, policies, guidelines and practices, including court orders, that subject defendants with disabilities to detention in a , a mental health facility

or other for a definite or

indefinite term (sometimes referred

Photo by Christian Tasso, from the project Fifteen Percent. to as “care-related hospitalization”, “security measures” or “detainment at the governor’s pleasure”) based on (j) Provide intermediaries or facilitators, perceived dangerousness or need for wherever and whenever needed, to care. enable clear communication among and between persons with disabilities and courts, tribunals and law enforcement agencies to ensure safe, fair and effective engagement and the opportunity to fully participate in legal processes;

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Principle 2 Facilities and services must be universally accessible to ensure equal access to justice without discrimination of persons with disabilities

GUIDELINE

2.1 To guarantee equal access to justice and (ii) Information, communications and non-discrimination, States must ensure that other services, including information the facilities and services used in legal and communications technology systems are built, developed and provided and systems; on the basis of the principles of universal (b) Ensuring that all means of transportation design by taking, at a minimum, the used in the justice system are accessible; following actions: (c) Ensuring that adequate financial resources are available to make the (a) Enacting and implementing enforceable justice system physically accessible to laws, regulations, policies, guidelines persons with disabilities in accordance and practices that guarantee the with the principles of universal design; accessibility of all facilities and services (d) Guaranteeing the provision of used in the justice system, based on the procedural accommodations when principles of universal design, including: facilities and services fail to ensure (i) Courts, police facilities, , access to the existing physical detention and forensic facilities, environment, transportation, information facilities, administrative offices and communications for persons with and other such places (including disabilities. toilets, cells, offices, entrances, lifts, canteens and recreational spaces in those places);

Photo by Christian Tasso, from the project Fifteen Percent.

PRINCIPLE 15

Principle 3 Persons with disabilities, including children with disabilities, have the right to appropriate procedural accommodations

GUIDELINES

3.1 To avoid discrimination and guarantee the effective and equal participation of persons with disabilities in all legal proceedings, States shall provide gender- and age-appropriate individualized procedural accommodations for persons with disabilities. They encompass all the necessary and appropriate modifications and adjustments needed in a particular case, including intermediaries or facilitators, procedural adjustments and modifications, adjustments to the environment and communication support, to ensure access to justice for persons with disabilities. To the fullest extent possible, accommodations should be organized before the commencement of proceedings.

3.2 States shall ensure the provision of a range of procedural accommodations, while also ensuring that such accommodations are implemented so as to properly balance and

respect the rights of all parties by, among other things:

Independent intermediaries and facilitators Photo by Christian Tasso. It was taken as part of the European Union project Bridging the Gap II – Inclusive (a) Establishing, funding and Policies and Services for Equal Rights of Persons with implementing a programme of Disabilities and appears courtesy of the International independent intermediaries or and Ibero-American Foundation for Administration and facilitators trained to provide Public Policies. communication assistance to parties to the proceedings and the justice system (b) Designing and implementing to determine whether accommodations a programme of independent and support are necessary and intermediaries or facilitators in a which accommodations and support manner consistent with local procedures are appropriate, and to assist with and customs, and in line with the communication throughout the course Convention on the Rights of Persons of the proceedings; with Disabilities;

16 INTERNATIONAL PRINCIPLES AND GUIDELINES ON ACCESS TO JUSTICE FOR PERSONS WITH DISABILITIES

Procedural adjustments and modifications Communication support

(c) Adopting procedures for hearings (e) Ensuring that all processes in the justice that ensure the fair treatment and full system provide the technical and other participation of persons with disabilities, support necessary for parties, witnesses, including children with disabilities, claimants, defendants and jurors to use during proceedings, as appropriate, any form of communication as necessary such as: for their full participation, including: (i) Adaptation of the venue; (i) Assistive listening systems and (ii) Appropriate waiting spaces; devices; (iii) Removal of cloaks and wigs; (ii) Open, closed and real-time (iv) Adjustments to the pace of captioning, and closed caption proceedings; decoders and devices; (v) Separate building entrances and (iii) Voice, text and video-based waiting rooms and protective telecommunications products; screens to separate persons (iv) Videotext displays; with disabilities from others if (v) Computer-assisted real-time necessary due to physical or transcription; emotional distress; (vi) Screen reader software, (vi) Modifications to the method magnification software and optical of questioning in appropriate readers; circumstances, such as allowing (vii) Video description and secondary leading questions, avoiding auditory programming devices compound questions, finding that pick up audio feeds for alternatives to complex television programmes; hypothetical questions, providing (f) Supporting communication, in addition extra time to answer, permitting to intermediaries or facilitators, through breaks as needed and using plain the use of third parties, including: language; (i) Note-takers; (vii) Use of pretrial video recording (ii) Qualified sign language and oral of and testimony, if interpreters; necessary, practical and possible, (iii) Relay services; in such a manner as not to (iv) Tactile interpreters; contravene basic rights, such as (g) Ensuring that all interpreters are able the right to confront and cross- to interpret effectively, accurately examine witnesses; and impartially, both receptively (d) Allowing persons with disabilities, (i.e. understanding what persons at all stages of the process if they so with disabilities are saying) and choose, to be accompanied by family, expressively (i.e. having the skill friends or others to provide emotional necessary to convey information back and moral support, without replacing, to those persons), while using any however, the role of an intermediary or necessary specialized vocabulary facilitator; (e.g. legal or medical) and respecting professional and ethical standards;

PRINCIPLE 3 17

Procedural accommodations for persons Requests for and offers of accommodations accused of crimes, and detainees

(k) Enacting and implementing laws, (h) Ensuring that police officers, regulations, policies, guidelines, prosecutors and others involved in practices and processes that enable arrests and investigations of criminal persons with disabilities to request offences are knowledgeable about the procedural accommodations, including rights of persons with disabilities, are modifications of or support in legal alert to the possibility that a person processes, with appropriate protection may have a disability and, throughout of their privacy; the course of an arrest or investigation, (l) Ensuring, throughout the course of adjust their responses accordingly; legal proceedings, that all participants (i) Ensuring that independent third are advised of the availability of persons, such as attorneys or others, procedural accommodations if needed are available to accompany persons and desired because of disability; with disabilities to the police station to (m) Ensuring a process for determining the assist them in the investigative process, need for and providing procedural including, for example, fingerprinting accommodations, including or giving a biological sample, and communication assistance, to children that intermediaries or facilitators, with disabilities, as well as additional or similar, are available to facilitate safeguards, when necessary, communication between persons with according to their evolving capacities disabilities and law enforcement and and their right to have their views court personnel; heard. (j) Removing barriers that prevent or discourage prisoners and detainees with disabilities from challenging their imprisonment and remedying conditions of confinement by, for instance, providing legal standing to prisoners’ rights organizations and representative organizations of persons with disabilities, simplifying procedures, shortening timelines for decisions and providing effective remedies;

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Principle 4 Persons with disabilities have the right to access legal notices and information in a timely and accessible manner on an equal basis with others

GUIDELINE

4.1 To guarantee the right to timely and (vi) Amplification devices and accessible information, States shall: document magnifiers; (vii) Closed captioning; (a) Enact enforceable laws, regulations, (viii) Braille; policies and guidelines that fully (ix) Easy Read and plain language; recognize a right to timely notice and (x) Facilitated communication; information about all aspects of judicial (c) Ensure that all notices that require processes; a response or an action to be taken (b) Ensure that information about justice (e.g. summonses, subpoenas, writs, systems and procedures can be orders and sentences) are available accessed by various methods, including, by accessible means and in accessible as appropriate and needed: formats, such as those listed above in (i) Sign language; guideline 4.1 (b); (ii) Video and audio guides; (d) Ensure that notices and information (iii) Telephone line advice and referral include clear understandable services; information about how a procedure (iv) Accessible websites; works, what to expect during a (v) Induction loop, radio or infrared process, what is expected of a person, systems; where to get help with understanding the process and the person’s rights in the process, in language that is not merely a repetition of the , regulation, policy or guideline – for example, plain language; (e) Ensure that support is available in real time for individuals who need assistance to understand notices and information by providing, for instance, interpreters, guides, readers, intermediaries and facilitators, and other forms of support.

Photo by Christian Tasso. It was taken as part of the European Union project Bridging the Gap II – Inclusive Policies and Services for Equal Rights of Persons with Disabilities and appears courtesy of the International and Ibero-American Foundation for Administration and Public Policies.

PRINCIPLE 5 19

Principle 5 Persons with disabilities are entitled to all substantive and procedural safeguards recognized in international law on an equal basis with others, and States must provide the necessary accommodations to guarantee due process

GUIDELINES

5.1 States shall ensure that all substantive (d) Ensure the provision of procedural and procedural safeguards recognized in accommodations to persons with international law, whether in criminal, civil disabilities at the time of their arrest, or administrative procedures, including the including procedural adjustments presumption of innocence and the right to and communication support, and remain silent, are afforded to all persons the use of de-escalation techniques, with disabilities, on an equal basis with as appropriate, to safeguard all due others. Procedural accommodations, when process guarantees and prevent police needed, must be available to all persons violence and abuse; with disabilities, including suspects and (e) Draft, enact and implement laws, accused persons, who require assistance to regulations, guidelines, procedures participate effectively in investigations and and policies to protect persons with judicial proceedings. disabilities from being exploited on account of their disability in any phase of the justice process; 5.2 Accordingly, States shall: (f) Ensure that procedural accommodations, including support, for effective (a) Ensure that all suspects and accused participation are available so that persons with disabilities are presumed persons with disabilities have the right, innocent until proven guilty under the on an equal basis with others, to make law; their own choices of how to defend (b) Ensure that suspects or accused themselves; persons with disabilities are provided (g) Ensure that health-care and with accessible and understandable psychosocial support are available at information about their rights, including the request of persons with disabilities, the right not to incriminate oneself; based on their free and informed (c) Ensure that, in all interactions with first , irrespective of the outcome responders, persons with disabilities of any police action or judicial have the right to be free from proceedings, and not contingent on a discrimination and any use of force plea bargain, confession or . or coercion based on disability – for example, perceived differences in behaviour or manner of communication – including through the provision of adequate support that is unrelated to and independent of police or law enforcement involvement;

Photo by Christian Tasso, from the project Saharawi.

20 INTERNATIONAL PRINCIPLES AND GUIDELINES ON ACCESS TO JUSTICE FOR PERSONS WITH DISABILITIES

Principle 6 Persons with disabilities have the right to free or affordable legal assistance

GUIDELINES

6.1 To guarantee the right to a fair trial, States capacity (e.g. guardianship); or loss shall provide free or affordable legal of family integrity by forfeiture of assistance to children with disabilities in parental or custodial rights; all matters, and to all other persons with (ii) Loss of housing, shelter or ; disabilities in all legal procedures and (iii) Any other situation, including all proceedings that relate to violations of criminal matters that do not carry human rights or fundamental freedoms the risk of incarceration, small or those that could negatively affect claims and civil cases, in which such rights or freedoms, in particular the a person with disabilities may be rights to life, liberty, personal integrity, disadvantaged in communicating, property, adequate housing, decision- understanding or being understood making autonomy and family integrity. in the process; Legal assistance must be competent and (c) Ensure, in addition to the matters available in a timely manner for persons listed above in guideline 6.2 (b), that with disabilities to participate equally in free legal assistance is available to any legal proceedings. persons with disabilities on terms that are no less favourable than those for persons without disabilities and, at a 6.2 To that end, States shall: minimum, whenever necessary, on an individualized basis, as a procedural (a) Enact and implement laws, regulations, accommodation; policies, guidelines and practices (d) Ensure, in addition to legal assistance, affording the right to legal assistance access to legal advice through, for in all judicial and quasi-judicial example, telephone or digital gateway proceedings, regardless of the role of services, services and online persons with disabilities in the process legal help services, using assistive or the possible consequences or technology as necessary; outcomes; (e) Repeal or amend any laws, (b) Create, fund and implement legal regulations, policies, guidelines or assistance programmes to provide free practices that restrict the legal capacity legal representation to persons who of persons with disabilities to retain cannot afford to retain legal assistance, and instruct a ; including persons with disabilities, at a (f) Ensure easy access to legal assistance, minimum in matters concerning: removing all administrative, (i) Loss of life or liberty, including communication and physical barriers to by imprisonment, detainment, such access; placement in an institution, forced (g) Ensure that specialized services for or involuntary medical treatment victims (e.g. gender-based violence (e.g. sterilization) or involuntary units) are equally accessible for hospitalization; loss of legal persons with disabilities;

PRINCIPLE 6 21

(h) Make procedural accommodations, such as interpreters, assistive technology and intermediaries and facilitators, or the resources necessary to obtain such accommodations, available to to support effective communication with clients, witnesses and other persons with disabilities in the discharge of their professional duties;

(i) Amend, when necessary, ethical and other relevant regulations applicable to lawyers to require them to respect and advocate for the will and preferences of their clients with disabilities and to follow their expressed instructions; any laws, regulations, policies, guidelines or practices to the contrary should be repealed or amended; (j) Repeal or amend all laws, regulations,

policies, guidelines and practices that

impose substituted decision-making in legal proceedings, including those that allow for the appointment of decision makers against the will of persons with disabilities (e.g. guardians ad litem, next friends and similar arrangements); or decisions made on the basis of the “best interests” of the persons concerned, as opposed to being based on their own will and preferences;

(k) Provide free legal assistance and support to all persons with disabilities who have experienced Photo by Christian Tasso. It was taken as part of the European Union project Bridging the Gap II – Inclusive violence, in particular women and Policies and Services for Equal Rights of Persons with girls with disabilities, including Disabilities and appears courtesy of the International professional victim support, advice and Ibero-American Foundation for Administration and about legal rights, and assistance in Public Policies. reporting crimes and initiating legal proceedings.

22 PRINCIPLE 7

Principle 7 Persons with disabilities have the right to participate in the administration of justice on an equal basis with others

GUIDELINES

7.1 The right to equal access to justice requires (b) Remove all disability-related barriers, that persons with disabilities have the including laws, that prevent persons opportunity to participate directly in with disabilities from being judges or adjudicative processes and be involved in jurors or serving in any other justice- various roles in the administration of justice related positions; on an equal basis with others. States should (c) Ensure the equal participation of ensure that persons with disabilities are persons with disabilities in the jury able to act as judges, lawyers, prosecutors, system by providing all necessary witnesses, jurors, experts and court officials support, reasonable accommodations in the justice system without discrimination. and procedural accommodations; (d) Consult closely with and actively involve persons with disabilities and 7.2 To this end, Governments, and their representative organizations in all other authorities, including judicial councils discussions and decision-making about and other independent judicial governing justice-related issues by, for example, bodies and independent self-governing providing meaningful participation legal professional bodies, must each, within on boards, committees, commissions, their respective roles, take the following sentencing councils and other guidance actions: and oversight organizations; (e) Collect disaggregated data on (a) Remove barriers that prevent or the participation of persons with discourage persons with disabilities disabilities in the justice system from entering justice system-related and, using that data, develop and professions by, for instance: implement strategies to reform policies, (i) Providing reasonable practices and laws to ensure equal accommodations throughout legal access to justice. and justice-related education programmes; (ii) Providing reasonable Photo by Christian Tasso, from the project Saharawi. accommodations during certification and licensing examinations or processes; (iii) Prohibiting questions about health and disability in applications for admission to the and positions in the justice system; (iv) Ensuring that all facilities and structures in the justice system are universally accessible to workers with disabilities.

PRINCIPLE 8 23

Principle 8 Persons with disabilities have the rights to report complaints and initiate legal proceedings concerning human rights violations and crimes, have their complaints investigated and be afforded effective remedies

GUIDELINES

8.1 States must have accessible, easy-to-use, violence are able and willing to come transparent and effective mechanisms for forward safely; individuals to report complaints about (f) Ensure that special protection units human rights violations and crimes. (e.g. those dealing with gender-based Complaint adjudicators and tribunals must violence, hate , children and provide remedies that are individually trafficking in persons) are accessible to tailored and may include redress and persons with disabilities and responsive . to their ; (g) Ensure that mechanisms, when appropriate and desired, provide for 8.2 Accordingly, States shall: anonymity and ;

Complaint mechanisms Responding to grave, systematic, group or large-scale violations

(a) Establish complaint mechanisms – for instance, national human rights (h) Ensure that complaint systems and the institutions, tribunals and administrative justice system are capable of detecting bodies – with the power to hear and responding to grave, systematic, complaints, including complaints about group and large-scale violations of disability-based discrimination, from human rights through, for instance, persons with disabilities and others class actions, actiones populares, and to order remedies; public inquiries and prosecutions, (b) Ensure that persons with disabilities following a complaint or on the may file criminal complaints on an initiative of the system itself; equal basis with others; (c) Ensure that civil and criminal complaint Investigations

mechanisms are accessible, using, for example, hotlines and e-service (i) Ensure that all investigators, including complaint methods; law enforcement officials, are (d) Provide voluntary alternative dispute knowledgeable about the rights of resolution mechanisms, such as persons with disabilities and are alert, conciliation, , and throughout the course of investigations, restorative justice; to the potential need for procedural (e) Ensure that complaint mechanisms and accommodations when investigations investigations are gender sensitive to involve persons with disabilities; guarantee that victims of gender-based

24 INTERNATIONAL PRINCIPLES AND GUIDELINES ON ACCESS TO JUSTICE FOR PERSONS WITH DISABILITIES

(j) Ensure that, when appropriate, an including the right to be free from intermediary or facilitator or other disability-based discrimination and appropriate third party is enlisted to the rights to , compensation, assist in the investigation process; rehabilitation, satisfaction and (k) Ensure that, when working with victims guarantees of non-repetition. Such with disabilities, law enforcement remedies should, among other things: officials assess the risk of the former (i) Be enforceable, individualized being subjected to further offences, and tailored to meet the needs of and whether any voluntary protective claimants; measures (such as a safe haven) are (ii) Ensure that victims are protected needed; from repeat violations of their human rights; Remedies (iii) Be proportional to the gravity of the violations and the circumstances of (l) Ensure, in the criminal context, that each case; those who abuse or otherwise mistreat (iv) Be provided on the basis that an persons with disabilities are prosecuted individual’s free and informed and, when appropriate, convicted or consent is required for any subject to other effective sanctions; rehabilitative measures; (m) Ensure that effective remedies are (v) Address the systemic nature of in place for human rights violations, human rights violations.

Photo by Christian Tasso, from the project Fifteen Percent.

PRINCIPLE 9 25

Principle 9 Effective and robust monitoring mechanisms play a critical role in supporting access to justice for persons with disabilities

GUIDELINES

9.1 States have an obligation to designate independent frameworks to promote, protect and monitor implementation of the rights of persons with disabilities and their equal access to justice. To ensure independent monitoring, States shall either provide the necessary mandates and resources to established monitoring mechanisms or create new ones when they do not exist.

9.2 States, therefore, should take the following Photo by Christian Tasso, from the project Saharawi. actions:

(a) Designate independent monitoring (d) Ensure the meaningful participation mechanisms in accordance with article of persons with disabilities and 33 (2) of the Convention on the Rights their representative organizations of Persons with Disabilities, including in designing and implementing establishing and maintaining national independent monitoring mechanisms; human rights institutions in accordance (e) Include a mandate to actively monitor with the principles relating to the and identify violations of the rights of status of national institutions for the persons with disabilities, particularly promotion and protection of human those deprived of liberty and placed in rights (the Paris Principles) with a institutional settings; mandate to monitor implementation of (f) Include a mandate for the independent the Convention; monitoring mechanisms to gather and (b) Ensure that all monitoring mechanisms publicly report data on human rights have institutional, financial and violations, including barriers to access political independence; to justice; (c) Promote the regular exchange of (g) Ensure a mandate and funding for information among monitoring raising awareness about the human mechanisms to identify challenges rights-based approach to disability and and implement strategies to address support training programmes for this common issues; purpose.

26 INTERNATIONAL PRINCIPLES AND GUIDELINES ON ACCESS TO JUSTICE FOR PERSONS WITH DISABILITIES

Principle 10 All those working in the justice system must be provided with awareness-raising and training programmes addressing the rights of persons with disabilities, in particular in the context of access to justice

GUIDELINES

10.1 States must remove barriers to justice for participate in the development and persons with disabilities by providing presentation of all training referenced training on the rights of persons with in the present guidelines; disabilities to all justice officials, including (d) Monitor and evaluate training the police, judicial officers, lawyers, health and ensure the participation and professionals, forensic experts, victim active involvement of representative service professionals, social workers, and organizations of persons with probation, prison and youth detention disabilities in such monitoring and staff. evaluation; (e) Launch awareness-raising strategies that include training programmes 10.2 To this end, Governments, legislatures and media campaigns, based on and other authorities, including judicial the human rights model of disability, councils and other independent judicial for all judicial officers, lawmakers, governing bodies and independent self- policymakers and law enforcement governing legal professional bodies, must officials to eliminate prejudice and each, within their respective roles, take the promote recognition of rights; following actions: (f) Make training manuals widely available for all those engaged in the (a) Enact and implement laws, regulations, administration of justice, especially policies, guidelines and practices that police officers, prosecution authorities create a legal obligation for all persons and judicial officers; who have a role in the administration (g) Use training to familiarize police of justice to participate in human rights- officers, including first responders based training on the rights of persons and investigators, prosecution with disabilities and the provision of personnel and judicial officers, with accommodations in accordance with good practices in interactions with guideline 10.2 (j); persons with disabilities, including (b) Provide training on an ongoing response, behaviour and appropriate basis to all those working in the accommodations; administration of justice, including by (h) Develop, fund and implement national human rights institutions and guidelines and training for lawyers and representative organizations of persons law students on the rights of persons with disabilities; with disabilities and procedural (c) Ensure that persons with disabilities accommodations, in accordance with and their representative organizations guideline 10.2 (j);

PRINCIPLE 10 27

(i) Provide persons with disabilities and their families with training and access to information on rights, remedies, claiming redress and the legal process; (j) Ensure that training programmes are comprehensive and address at least the following topics: (i) Factors or system features that can result in barriers for persons with disabilities;

(ii) Removal of barriers to access to justice for persons with disabilities; (iii) The Convention on the Rights of Persons with Disabilities and the human rights model of disability; (iv) The acknowledgement that persons with disabilities have the right to recognition as persons before the law, including combating harmful gender

and disability stereotypes and

prejudices; (v) The obligation to respect the Photo by Christian Tasso, from the project Fifteen Percent. legal capacity of persons with disabilities, including legal agency (xi) Sexual, reproductive and family and standing; rights; (vi) Communication skills, including (xii) Intersecting forms of discrimination identifying the need to engage on the basis of disability and other experts for communication grounds, including sex, gender, assistance; indigenous status, race, sexual (vii) De-escalation of situations and orientation, migration status, prevention of the use of force; minorities and disadvantaged (viii) Procedural accommodations; communities, and poverty; (ix) Reasonable accommodations; (xiii) Awareness and understanding (x) Combating ableism and of the rights of persons with overcoming prejudice against disabilities to have equal access persons with disabilities; to information.

28 INTERNATIONAL PRINCIPLES AND GUIDELINES ON ACCESS TO JUSTICE FOR PERSONS WITH DISABILITIES

ADDITIONAL RESOURCES

Disability-specific reference documents and standards

Committee on the Rights of Persons with Disabilities, general comment No. 1 (2014) on equal recognition before the law

______general comment No. 2 (2014) on accessibility.

______general comment No. 3 (2016) on women and girls with disabilities.

______general comment No. 6 (2018) on equality and non-discrimination.

______general comment No. 7 (2018) on the participation of persons with disabilities, including children with disabilities, through their representative organizations, in the implementation and monitoring of the Convention.

Convention on the Rights of Persons with Disabilities (2006)

Flynn, Eilionóir, and others, Final Report: Access to Justice of Persons with Disabilities. Galway: Centre for Disability Law and Policy, National University of Ireland, Galway, 2019.

G3ict (Global Initiative for Inclusive Information and Communication Technologies), Inclusive courts checklist. Atlanta, 2020.

United Nations, General Assembly, Rights of persons with disabilities. 9 August 2016. A/71/314.

______Sexual and reproductive health and rights of girls and young women with disabilities. 14 July 2017. A/72/133.

United Nations, Human Rights Council, Report of the Special Rapporteur on the rights of persons with disabilities. 12 January 2016. A/HRC/31/62.

______Report of the Special Rapporteur on the rights of persons with disabilities. 20 December 2016. A/HRC/34/58.

______Report of the Special Rapporteur on the rights of persons with disabilities. 12 December 2017. A/HRC/37/56.

______Right to access to justice under article 13 of the Convention on the Rights of Persons with Disabilities. 27 December 2017. A/HRC/37/25.

______Rights of persons with disabilities. 11 January 2019. A/HRC/40/54.

ADDITIONAL RESOURCES 29

General reference documents and standards on access to justice

Treaties and treaty bodies

International Convention on the Elimination of All Forms of Racial Discrimination (1965), articles 5 and 6.

• Committee on the Elimination of Racial Discrimination, general recommendation No. 31 (2005) on the prevention of racial discrimination in the administration and functioning of the system.

International Covenant on Civil and Political Rights (1966), articles 2, 9, 14 and 26.

• Human Rights Committee, general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial.

Convention on the Elimination of All Forms of Discrimination against Women (1979), articles 2 and 15.

• Committee on the Elimination of Discrimination against Women, general recommendation No. 33 (2015) on women’s access to justice.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or (1985), articles 13 and 14.

• Committee against Torture, general comment No. 3 (2012) on the implementation of article 14.

Convention on the Rights of the Child (1989), articles 12, 23, 37 and 40

• Committee on the Rights of the Child, general comment No. 24 (2019) on children’s rights in the child justice system.

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990), articles 16 to 20.

International Convention for the Protection of All Persons from Enforced Disappearance (2006), article 24.

Other instruments

Basic Principles on the Independence of the Judiciary (1985).

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985).

United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) (1985).

30 INTERNATIONAL PRINCIPLES AND GUIDELINES ON ACCESS TO JUSTICE FOR PERSONS WITH DISABILITIES

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988).

Basic Principles on the Role of Lawyers (1990).

Guidelines on the Role of Prosecutors (1990).

United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) (1990).

United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990).

Guidelines for Action on Children in the Criminal Justice System (1997).

Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005).

Updated set of principles for the protection and promotion of human rights through action to combat impunity (2005).

United Nations Declaration on the Rights of Indigenous Peoples (2007), articles 22 and 40.

United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) (2010).

United Nations Principles and Guidelines on Access to in Criminal Justice Systems (2012).

United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) (revised, 2015).

International standards applicable in situations of armed conflict

Geneva Convention relative to the Treatment of Prisoners of War (1949), articles 3 and 102–108.

Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949), articles 3, 5, 66 and 71.

ADDITIONAL RESOURCES 31

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (1977), article 75 (4).

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (1977), article 6.

International Committee of the Red Cross, study on customary international humanitarian law, rule 100 (“No one may be convicted or sentenced, except pursuant to a fair trial affording all essential judicial guarantees” (2005).

Regional human rights instruments

American Declaration of the Rights and Duties of Man (1948), articles II, XVIII and XXVI.

Convention for the Protection of Human Rights and Fundamental Freedoms (1950), articles 6 and 13.

American Convention on Human Rights (1969), articles 8 and 24–25.

African on Human and Peoples’ Rights (1981), articles 7 and 26.

Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003).

Arab Charter on Human Rights (2004), articles 11–19 and 23.

Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA (2012).

United Nations Special Rapporteur on the rights of persons with disabilities www.ohchr.org/EN/Issues/Disability/SRDisabilities/Pages/SRDisabilitiesIndex.aspx [email protected]

United Nations Committee on the Rights of Persons with Disabilities www.ohchr.org/EN/HRBodies/CRPD/Pages/CRPDIndex.aspx [email protected]

Special Envoy of the Secretary-General of the United Nations on Disability and Accessibility www.un.org/development/desa/disabilities/resources/special-envoy-of-the-secretary-general-on- disability-and-accessibility.html [email protected]

Cover page: Photo by Christian Tasso. It was taken as part of the European Union project Bridging the Gap II – Inclusive Policies and Services for Equal Rights of Persons with Disabilities and appears courtesy of the International and Ibero-American Foundation for Administration and Public Policies.