THE CONVENTION ON THE RIGHTS
OF PERSONS WITH DISABILITIES
Access to Justice
Convention on the Rights of Persons with Disabilities
Article 13, Access to justice
1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages.
2. In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff.
Article 12, Equal recognition before the law (excerpts)
1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
The information contained in this chapter will enable participants to work towards the following objectives:
· Define the right to access to justice;
· Explain the importance of equal access to justice and equal recognition before the law for persons with disabilities;
· Understand the interrelationship between access to justice and other human rights;
· Identify ways in which the rights of persons with disabilities to access justice have been promoted or denied; and
· Understand the provisions on access to justice in the Convention on the Rights of Persons with Disabilities (CRPD).
GETTING STARTED: THINKING ABOUT ACCESS TO JUSTICE
“Access to justice” is a broad concept, encompassing people’s effective access to the systems, procedures, information, and locations used in the administration of justice. Persons who feel wronged or mistreated in some way usually turn to their country’s justice system. In addition, persons may be called upon to participate in the justice system, for example, as witnesses or as jurors in a trial. Unfortunately, persons with disabilities have often been denied fair and equal treatment before courts, tribunals, and other bodies that make up the justice system in their country because they have faced barriers to their access. Such barriers not only limit the ability of persons with disabilities to use the justice system, they also limit their contributions to the administration of justice.
The ability to access justice is of critical importance in the enjoyment of all other human rights. For example, a person with a disability who feels that she or he has been denied the right to work may wish to turn to the justice system to seek a remedy. However, if the justice system fails to accommodate their physical, communication, or other disability-related needs, and/or expressly discriminates against her or him, then clearly denial of access to the justice system also results in denial of protection of the right to work. Similarly, a person with a disability who has been the victim of a crime may wish to report the crime to the police and press charges against the offender. However, if he or she is denied physical access to the police station, clear communication with the police, or access to information that is understandable, then that person may not be able to fully exercise her or his rights as a victim. These examples demonstrate that human rights are indivisible, interdependent, and interrelated.
The enjoyment of other human rights can also impact the ability of persons with disabilities to enjoy access to justice. The accessibility of transportation may determine whether or not a person with a disability is able to travel to a police station, courthouse, or other place where justice is administered. A person with a disability who has had access to a quality education will be better able to understand and use the justice system. For persons with disabilities who have been denied the right to education, however, participation in the justice system may be difficult or impossible. Furthermore, laws pertaining to legal capacity may prevent a person with a disability from managing his or her own legal affairs, including seeking a remedy for injustice. This denies the right to equal recognition as a person before the law.
To be fully included in society, persons with disabilities need access to justice. As long as they face barriers to their participation in the justice system, they will be unable to assume their full responsibilities as members of society or fully realize their rights. For this reason it is important that barriers be removed so that persons with disabilities can enjoy the equal opportunity to perform their duties as witnesses, jurors, lawyers, judges, arbitrators, and other participants in the administration of justice.
Examples of Barriers to Access to Justice
· Physical barriers to police stations, courthouses, jails, prisons, and other public buildings;
· Lack of accessible transportation to police stations, courthouses, and other public buildings;
· Legislation, regulations, policies, or practices expressly barring persons with disabilities from being witnesses, jurors, judges, lawyers, or law students;
· Lack of accessible information about how the justice system works and the rights and responsibilities of persons with disabilities within the justice system;
· Lack of accommodations to facilitate communication by persons with disabilities, especially persons who are blind, deaf, and deafblind; persons with intellectual disabilities; and persons with learning disabilities;
· Attitudes about the ability of persons with disabilities to participate meaningfully in the administration of justice, such as the false perception that persons with psychosocial disabilities cannot be reliable witnesses; and
· Lack of training for police and other officials to understand the specific needs of persons with disabilities in accessing justice and how to provide necessary accommodations.
WHAT DOES HUMAN RIGHTS LAW SAY ABOUT ACCESS TO JUSTICE?
The right to access to justice has its foundation in provisions in international law that address the equality of persons before the law, their right to equal protection under the law, and their right to be treated fairly by a tribunal or court. These rights are addressed in Articles 6 through 11 in the Universal Declaration of Human Rights (UDHR) and are addressed in more detail in Articles 14 – 16 of the International Covenant on Civil and Political Rights (ICCPR).
Other treaties address the need to ensure that specific groups are able to enjoy these rights on an equal basis with others. The International Convention on the Elimination of All Forms of Racial Discrimination (CERD) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) are particularly relevant for persons with disabilities who may be subject to multiple discrimination, such as women with disabilities and ethnic minorities with disabilities. For example, Article 5(a) of CERD requires that States “eliminate racial discrimination in all its forms,” and guarantee the right of everyone “to equal treatment before the tribunals and all other organs administering justice.” Article 15 of CEDAW addresses these issues as they relate to women and requires that States treat women “equally in all stages of procedure in courts and tribunals.”
The CRPD expands upon the issues addressed in earlier human rights documents and helps to clarify how States can respect, protect, and fulfil the enjoyment of access to justice by persons with disabilities. CRPD Article 13, Access to justice, guarantees the right of persons with disabilities:
· To effective access to justice on an equal basis with others;
· To effective access to justice at all phases of the administration of justice, including at preliminary stages, such as initial investigations;
· To be both direct and indirect participants, including being witnesses; and
· To receive procedural and age-appropriate accommodations to facilitate their access to justice.
Article 13 of the CRPD also requires States to provide training to those working in the administration of justice in order to help ensure effective access to justice by persons with disabilities.
Support Services for Victims with Disabilities
Bizchut, the Israeli Human Rights Center for People with Disabilities, has worked extensively to advocate on access to justice for persons with disabilities. One component of this advocacy effort addresses the lack of formal support services for persons with disabilities who are the victims of crime. The organization is working to provide in-person support services and has developed the following methods:
· Accompanying the victim to the police station;
· Talking with the police to help them understand the nature of the victim’s disability;
· Making suggestions for modifications to the usual procedures that could be made in order to help the investigation;
· Being present with a crime victim with a disability during police questioning, if desired by the victim;
· Accompanying a crime victim with a disability to the courthouse prior to any official meetings there, in order to prepare them for the courtroom environment, and helping him or her understand what procedures will occur and easing their concerns about these procedures;
· Accompanying the victim during court proceedings; and
· Requesting the court to make modifications to the testimony procedures, where appropriate, and with the victim’s permission (for example, moving proceedings to the judge’s chambers or other environment less intimidating than the courtroom or bringing in an expert to help court officials understand the victim’s disability and its possible impact on the testimony).
Source: Bizchut, the Israeli Human Rights Center for People with Disabilities: http://bizchut.org.il/en/
The Duty to Respect, Protect, and Fulfil Obligations Relating to Access to Justice
Taken as a whole, States’ obligations with regard to access to justice include:
1. Obligation to respect: States must refrain from engaging in any act, custom, or practice that denies or limits equal access to justice for persons with disabilities.
Example: The State repeals a law that allows judges and lawyers to interfere with the exercise and enjoyment of access to justice by persons with disabilities by denying them the opportunity to serve as jurors or as witnesses in a trial.
Example: The State reviews practices regarding admission of persons with disabilities into legal education programmes to ensure discrimination is not occurring and introduces legislation to override a court decision prohibiting persons with disabilities from serving as judges.
2. Obligation to protect: States must take all appropriate measures to eliminate discrimination and violations of access to justice by any non-State actors.
Example: The State takes measures to ensure that security guards at court house facilities take measures to accommodate persons with disabilities.
Example: The State provides accommodations in legal proceedings to enable a person with a disability who is a victim of a crime to seek a remedy.
3. Obligation to fulfil: States must be proactive in their adoption and implementation of measures to give effect to access to justice.
Example: The State adopts training programmes for court officials on disability awareness and how to provide reasonable accommodations for persons with disabilities in the justice system.
Example: The State introduces an “affirmative action” programme to encourage greater participation of students with disabilities in legal and paralegal education.
In sum, international human rights law strongly supports the right of persons with disabilities to have meaningful and effective access to justice in all its phases, not only as a right in itself, but also as a means to ensure that persons with disabilities may better enjoy their other human rights and fully assume their responsibilities as members of society.
ACCOMMODATING PERSONS WITH DISABILITIES IN COURTS
Persons with disabilities have the same needs as other citizens to access court programmes and services, including judicial and administrative proceedings, jury service, and courthouse meetings. The obligation on States Parties to the CRPD and international human rights law generally is to identify and remove barriers that stand in the way of access to court programmes and services for persons with disabilities. Persons with disabilities must be afforded equal access to serve as jurors, appear as parties or witnesses in a trial, or attend a hearing as an observer, as well as to serve as lawyers, clerks, court reporters, and judges.
The duty to accommodate persons with disabilities in court and other legal proceedings, such as administrative hearings, relates to the fundamental right to be heard. Access must be provided at all stages of a judicial process and must be provided to all participants.
There are two central aspects of ensuring access to courts:
General Accessibility: The first is to develop and implement a comprehensive plan to address general accessibility concerns, including identifying and removing architectural barriers in courthouses, providing materials in alternative formats, making court websites accessible for people who use assistive technology, and installing listening systems in courtrooms.
Individualized Accessibility: The second aspect of ensuring access to courts relates to the provision of individualized accessibility to respond to an individual’s needs to ensure equality of opportunity in the administration of justice. This may include providing a sign language interpreter for a person who is deaf, a reader for a witness who is blind, or frequent breaks for a defendant who has a psychosocial disability.
The following framework reflects a holistic approach to addressing the multitude of barriers that persons with disabilities may often experience in attempting to access courts:
Court Facilities: Identifying and addressing barriers within the physical or built environment. Modifications might include, for example, making pathways to court buildings accessible (for example, entrance ramps), making accessible corridors, elevators, accessible washrooms, appropriate signage, and addressing courtroom accessibility to enable wheelchair users to participate in proceedings in any role or as observers.
Court Programmes and Services: Identifying and addressing barriers to access in court programmes and services. Accommodations and accessibility modifications might include, for example, interpreter services, information on accessible accommodations and how to request them, information on how to file a complaint, and provision of court information in accessible formats.
Court Policies: Adopting policies and guidelines to promote disability accommodations and accessibility in court facilities, services, and programmes. Examples might include the development of an accommodation request procedure, designating a single point of contact for accommodation requests, designing a policy on excusing jurors from service in a way that ensures the inclusion of persons with disabilities, developing emergency evacuation plans for persons with disabilities, establishing procedures for receiving and acting on complaints, and establishing certification or standards on interpreter qualifications.
US Case Law: Affirming Access to Courts for Persons with Disabilities
Right to a Remedy: The US Supreme Court ruled that a State is not immune from a law suit under the Americans with Disabilities Act brought regarding the accessibility of a State courthouse. Tennessee v. Lane, 541 U.S. 509, 124 S. Ct. 1978 (2004).
Serving as a Witness: A witness who was blind testified before the jury in a criminal trial for rape. The court held that the jury could properly rely on the testimony of a witness who was blind. Wilson v. Georgia, 2004 Ga. App. Lexis 699 (2004).
Serving as a Juror: A criminal defendant argued that a juror who was deaf in his criminal trial should be disqualified. The court held that a trial court properly denied a criminal defendant’s motion to disqualify a juror who was deaf and that a juror’s inability to hear is not a disqualification in Georgia and there was no other evidence to support disqualification on other grounds. Carter v. Georgia, 228 Ga. App. 335, 491 S.E.2d 525 (1997). In another case, the court held that the categorical exclusion of a person who was blind from jury service was a violation of federal disability law. Galloway v. Superior Court of District of Columbia, 816 F. Supp. 12 (D.C. 1993).
Serving as Court Observer/Rights of Victims: The court held that a trial court did not abuse its discretion in allowing a crime victim with a disability to remain in the courtroom during a trial. The person was a victim of a crime and was a wheelchair user who was also in a coma. The defendant argued that it would be prejudicial if the victim was allowed to remain in the courtroom. The court held that victims have the right to access a courtroom and further held that the injuries to the victim were relevant to the proceeding. Lewis v. Georgia, 215 Ga. App. 161, 450 S.E.2d 448 (1994).
Accessibility of Court Services: Two persons who were deaf asked for, but were denied, a sign language interpreter for their wedding in a civil courtroom. The court found that the wedding was a “service” provided by the court house and that as individuals with disabilities, the plaintiffs were entitled to the provision of a sign language interpreter under the Americans with Disabilities Act. Soto v. City of Newark, 72 F. Supp. 2d 489 (D.N.J. 1999).
USEFUL RESOURCES ON ACCESS TO JUSTICE
· Americans with Disabilities Act-Architectural Barrier Act (ADA-ABA), Accessibility Guidelines for Buildings and Facilities (as amended 2004): http://www.access-board.gov/ada-aba/final.cfm#rooms
o Provides detailed guidelines on accessibility, including elements within courtrooms, to comply with the Americans with Disabilities Act 1990.
· Georgia Commission on Access and Fairness in the Courts, A Meaningful Opportunity to Participate: A Handbook for Georgia Court Officials on Courtroom Accessibility for Individuals with Disabilities (December 2004): http://www.georgiacourts.org/files/ADAHandbk_MAY_05_800.pdf
o Detailed handbook concerning all aspects of courtroom accessibility for persons with disabilities.
· David McChesney, Promoting Disability Accommodation in Legal Education and Training (Reach Canada, 2003): http://www.reach.ca/lepof/table.htm
o Detailed report on disability accommodations in legal education in Canada.
· Stephanie Ortoleva, “Inaccessible Justice: Human Rights, Persons with Disabilities and the Legal System,” 17 ILSA Journal of International and Comparative Law, 281 (Spring 2011):
o Article that details the barriers that persons with disabilities experience in accessing justice and discusses the implications of the CRPD.
· Washington State Access to Justice Board, Ensuring Equal Access for Persons with Disabilities: A Guide to Washington Administrative Proceedings (2006):
o Provides detailed guidance on disability accommodations in administrative proceedings for persons with disabilities.