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

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International Principles and Guidelines on Access to Justice for Persons with Disabilities International Principles and Guidelines on Access to Justice for Persons with Disabilities Endorsed by International Principles and Guidelines on Access to Justice for Persons with Disabilities Geneva, August 2020 2 FOREWORD BY THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS 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 human rights simply denied. Laws, procedures and rights institutions 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 law, 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 Convention 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 United Nations High Commissioner instruction on how to ensure access to justice for Human Rights 3 FOREWORD BY JUAN MANUEL FERNÁNDEZ MARTÍNEZ The rule of law – namely, the subjugation establish with absolute clarity the minimum of the people and public powers to the due and indispensable limits for the regulation 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 dignity, regardless of personal, family or social circumstances. As mentioned above, there is no That is, equality before the law, 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, religion, 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 judiciary. 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. neutrality to social reality, 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 good 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 regulations. 4 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 5 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 need 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. 6 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
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