Access to Justice for Persons with Disabilities (PWDs): Barriers, Principles and Guidelines

Abstract

Access to justice for persons with disabilities (PWDs) on an equal basis with others, is one of the fundamental rights enshrined in UN Convention on the Rights of Persons with Disabilities (UNCRPD) and other legal charters. Therefore, this article analyzed the various barriers faced by PWDs in access to and the administration of justice. The article also analyzed some legal frameworks on access to justice for PWDs like Universal Declaration of Human Rights (UDHR). Similarly, the article analyzed the roles of legal actors like the police, the prosecutors and lawyers for ensuring access to justice for PWDs. Finally, the article analyzed some international principles and guidelines on access to justice for persons with disabilities.

Keywords: Access to Justice, Barriers, Human Rights, Guidelines, Legal Capacity,  Principles, Persons with Disabilities (PWDs).

1. Introduction

Around 15% of the world’s population, or one billion people, live with some form of disability (WHO and World Bank, 2011). Persons with disabilities face a range of exclusion and barriers to education, employment, healthcare services, social and political participation as well as access to Justice. These exclusions and barriers are contrary to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) which calls upon all countries to respect and ensure the equal rights and inclusion of all persons with disabilities to education, employment, healthcare services, social and political process as well as access to Justice.

Every person with disability should, on an equal basis with others, enjoy the rights to equality before the law, to equal protection under the law, to a fair resolution of disputes, to meaningful participation and to be heard. Thus, countries must ensure equal access to justice for all persons with disabilities by providing the necessary substantive, procedural, and age- and gender appropriate accommodations and support. The United Nations Human Rghts (UNHRC) is intended to assist countries and other actors to design, develop, modify and implement justice systems that provide equal access to justice for all persons with disabilities, regardless of their roles in the process, in accordance with the UN Convention on the Rights of Persons with Disabilities (UNCRPD).

While access to justice is fundamental for the enjoyment and fulfilment of all human rights, many barriers prevent persons with disabilities from accessing justice on an equal basis with others. Such barriers include restrictions on the exercise of legal capacity; lack of physical access to justice facilities, such as courts and police stations; lack of accessible transportation to and from these facilities; obstacles in accessing legal assistance and representation; lack of information in accessible formats; paternalistic or negative attitudes questioning the abilities of persons with disabilities to participate during all phases of the administration of justice; and lack of training and orientation about PWDs for professionals working in the field of justice. Also, in the justice system, persons with disabilities are usually considered to be unworthy of, unable to benefit from or even likely to be harmed by due process protection provided to all other citizens. Even fundamental rights, such as the right to remain silent and the presumption of innocence, may be denied either directly in law or policy or indirectly in custom and practice (UNHRC, 2017).

The UN Convention on the Rights of Persons with Disabilities (UNCRPD) details that people with disabilities have the right to equality before the law. All people with disabilities should have the same access to their rights as other people, and the same ability to exercise their rights. Thus, police, courts, judges, and governments should not presume that persons with physical, sensory, intellectual or psychosocial disabilities are unable to exercise their rights just because they have a disabilities (Smith, 2013).

Furthermore, guaranteeing access to justice is indispensable to democratic governance and the rule of law, as well as to combating inequality and exclusion. Since the adoption of the UN Convention on the Rights of Persons with Disabilities (UNCRPD), there has been a blueprint for achieving inclusion based on the human rights-based approach to disability. Hence, the Principles and Guidelines on access to justice for persons with disabilities have been developed and endorsed by the International Commission of Jurists (ICJ), the International Disability Alliance (IDA) and the United Nations Development Programme (UNDP) (2020).

2. Conceptual Clarification

2.1.  Access to Justice

Ortoleva (2016), describes ‘Access to Justice’ as a broad concept that encompasses peoples’ effective access to the systems, procedures, information, and locations used in the administration of justice. All human beings are born free and equal in dignity and rights and therefore everybody should have equal access to justice when their dignity and rights are infringed upon. While access to justice is a human right it is also of critical importance in the enjoyment of all other human rights, e.g. if a person with a disability has been denied the right to work they may wish to turn to the justice system to seek a remedy (solution). Thus, people who feel wronged or mistreated in some way usually turn to the justice system for remedy or redress. 

In addition, people may be called upon to participate in the justice, for example, as defendants, witnesses, or experts in a trial. Thus, users of the justice system include both direct (active users) and indirect (passive users). Active users include people with direct interests in the outcome of a case, such as the parties to a case and their family members and court support groups (for example, civil society organizations). They may also include people with a public duty to ensure that cases are disposed of in accordance with the law (state agencies responsible for investigation, law enforcement, prosecution, and rehabilitation) as well as others involved in the case (pro-bono lawyers, volunteer counsellors, and social workers). 

More so, indirect (passive users) are members of the public, including those who attend open court to witness judicial proceedings and those who never enter a courthouse. They also include all those who benefit from effective judicial systems. If the system functions well and upholds the rule of law, all citizens are given adequate protection and can go about their daily activities without fear. The needs of these silent users must be accounted for, because a fair, efficient, and responsive legal system provides an important public good. Thus, the symbolic component of access to justice steps outside of doctrinal law and asks to what extent a particular legal system promotes citizens’ belonging and empowerment. This presupposes that every citizen can participate in all aspects of the justice system without discrimination whether as witnesses, volunteer counselors, legal aid providers, lawyers, or judges (Flynn, 2014).

According to Smith (2013), Access to justice includes social, intellectual, communication, institutional, physical and economic accessibility. It involves three key components, which are: substantive justice, procedural justice and symbolic justice. While the focus of Substantive justice is on the rights and available to those who seek a remedy; Procedural aspects of access to justice focus on the opportunities and barriers to getting ones claim into court or other dispute resolution setting. Such barriers may be physical, structural (legal process), communicative and/or language barriers, information and advice barriers, prohibitive cost, uncertain outcome, and court or tribunal setting being inappropriate.

2.2. Persons with Disabilities (PWDs)

According to the World Health Organization (WHO) (2011), “Disability” is an umbrella term covering impairments, activity limitations, and participation restrictions. Impairment is a problem in the body function or structure; an activity limitation is a difficulty encountered by an individual in executing a task or action; while a participation restriction is a problem experienced by an individual in involvement in life situations. Disability is thus not just a health problem. It is a complex phenomenon, reflecting the interaction between features of a person’s body and features of the society in which he or she lives. Overcoming the difficulties faced by persons with disabilities requires interventions to remove environmental and social barriers.

Article 1 of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) (2006), defines persons with disabilities as including: “those who have long-term physical, mental, psycho-social, intellectual or sensory impairments, which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”. Importantly, this definition has been shifted away from a purely medical model of disability to social model. Therefore, disability is the ‘social effect of the interaction between the individual impairment and the social and material environment’. 

2.3. Human Rghts

Human rights are the rights held by all persons by virtue of their common humanity to live a life of freedom and dignity. These rights are universal, and everyone regardless of sex, race, nationality, and economic background shares them equally. They are inalienable (they can neither be taken away nor given up), and they are indivisible (no right can be suppressed in order to promote another right). Human rights define and affirm humanity, they exist to ensure that human life remains sacred and guarantee that inhumanity and injustice are prevented or redressed. Accordingly, The United Nations Charter affirms that, “Universal respect for, and observance of, human rights and fundamental freedoms for all without distinction” is essential (Ladan, 2015).

Human rights can be described as those inalienable (natural) rights and privileges enjoyed by the citizens of a given state, which are usually stated in the constitution of the country. It is the responsibility of the state to ensure that its citizens enjoy these rights (Dibie, 2008).

2.4. Legal Capacity

Legal capacity refers to the capacity to be both a holder of rights and an actor under the law. Legal capacity to be a holder of rights entitles persons to full protection of their rights by the legal system. Legal capacity to act under the law recognizes that person as an agent with the power to engage in transactions and create, modify or end legal relationships. Legal capacity includes both the capacity for a right to recognition everywhere as persons before the law (‘legal recognition’) and the capacity to ‘exercise’ those rights (Bach, 2017).

According to European Group of National Human Rights Institutions (2014), legal capacity means the capacity to have rights and the power to exercise those rights. Both of these elements are integral to the concept of legal capacity because they establish the rights and responsibilities of persons with disabilities to make their own decisions. Practically, legal capacity is the law’s recognition of the validity of a person’s choices. It is what allows a person to act within the framework of the legal system. It makes a human being a subject of law.

Legal capacity comprises of two parts: the capacity to have rights and the capacity to act or exercise these rights. The first part includes the right to be a subject before the law; for instance, to be somebody who can own property, have a job or start a family. The second part (to exercise rights) goes further and includes the power to dispose of one’s property and claim one’s rights before a court.

2.5. Procedural Accommodation

Procedural accommodation refers to all necessary and appropriate modifications and adjustments in the context of access to justice, where needed in a particular case, to ensure the participation of persons with disabilities on an equal basis with others. Unlike reasonable accommodations, procedural accommodations are not limited by the concept of “disproportionate or undue burden” (Washington State, 2019).

Reasonable accommodation can be used as a means of ensuring accessibility for the person with disability in a particular and specific situation. It seeks to achieve individual justice in the sense of ensuring non-discrimination or equality, while respecting the dignity, autonomy and choices of the individual. Therefore, a person with a rare impairment may seek an accommodation that does not fall within the scope of any accessibility standard. Unlike reasonable accommodations, procedural accommodations are related to a specific procedure before the court or court proceeding and enabling the participation in it and cannot be disproportionate, as is sometimes the case with reasonable accommodations. They relate to the manner of participation, including the manner of questioning/hearing the party in the proceedings, the form and type, or method of communication, etc. (e.g. sign language, Braille, easy-to-understand and easy-to-read format), whatever option the person with disability chooses himself/herself (European Group of National Human Rights Institutions, 2014).

3. Legal Frameworks on Access to Justice for Persons with Disabilities

Persons with disabilities are entitled to enjoy all the rights contained in all previously adopted international and regional human rights instruments that are relevant to justice systems, access to justice and, more generally, the administration of justice on an equal basis with others without discrimination. 

3.1. The Universal Declaration of Human Rights (UDHR) (1948)

The Article 8 of UDHR said that “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” And article 10 of the Declaration specifies that “Everyone is entitled to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”. This means that the UDHR makes provision for equality before the law, and equal protection of the law. It further provides for the basic right of the individual to a fair trial and public hearing in both civil and criminal proceedings, and the right to an effective remedy. Those Articles 8 and 10 of UDHR are equally applied to people with disabilities.

3.2. The European Convention of Human Rights (ECHR) (1970)

The Article 6 (1) specifies that “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. (2) “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. Article 13 said that “Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity”. Those Articles 6 and 13 of ECHR are equally applied to people with disabilities.

3.3. American Convention on Human Rights (ACHR) (1969)

The Articles 8 said that (1) “Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature”.

(2) “Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: (a) the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court; (b) prior notification in detail to the accused of the charges against him; (c) adequate time and means for the preparation of his defense; (d) the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel; (e) the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law; (f) the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts; (g) the right not to be compelled to be a witness against himself or to plead guilty; and (h) the right to appeal the judgment to a higher court”. Article 24 said that “All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law”. 

Article 25 (1) said that “Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties. (2) The States Parties undertake:

1. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state;

2. to develop the possibilities of judicial remedy; and

3. to ensure that the competent authorities shall enforce such remedies when granted”.

Those Articles 8, 24 and 25 of ACHR are equally applied to people with disabilities.

3.4. Human Rights Act of the United Kingdom (HRAUK) (1998)

Article 6 said that (1) “Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice”. (2) “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. (3) “Everyone charged with a criminal offence has the following minimum rights:

1. to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

2. to have adequate time and facilities for the preparation of his defence;

3. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

4. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

5. to have the free assistance of an interpreter if he cannot understand or speak the language used in court”.

This Article 6 of HRAUK is equally applied to people with disabilities.

3.5. African Charter on Human and Peoples’ Rights (ACHPR) (1981)

Article 3 (1) “Every individual shall be equal before the law”. (2) “Every individual shall be entitled to equal protection of the law”. Article 7 (1) revealed that “Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his Fundamental rights as recognised and guaranteed by conventions, laws, regulations and customs in Force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defence, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal. (2) No one may be condemned For an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence For which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender. Those Articles 3 and 7 of ACHPR are equally applied to people with disabilities.

3.6. Arab Charter on Human Rights (ACHR) (2004)

The Article 11 states that “All persons are equal before the law and have a right to enjoy its protection without discrimination”. Article 12 states that “All persons are equal before the courts. The State Parties ensure the independence of the courts and the protection of judges against interference, pressure or threat. All persons within the territory of the State Parties are ensured a right to legal remedy”. Article 13 (1) states that “Everybody has the right to a fair trial in which sufficient guarantees are ensured, conducted by a competent, independent and impartial tribunal established by law, in judging the grounds of criminal charges brought against him or in determining his rights and obligations. State Parties shall ensure financial aid to those without the necessary means to pay for legal assistance to enable them to defend their rights”. (2) “The hearing shall be public other than (except) in exceptional cases where the interests of justice so require in a democratic society which respects freedom and human rights”. Those Articles 11, 12 and 13 of ACHR are equally applied to people with disabilities.

3.7. The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) (2006)

The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) explains the right to access to justice in the context of disability. Article 13 of the UNCRPD specifically addresses access to justice, directing countries to ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of specified accommodation, in order to facilitate their effective role as direct and indirect participants (art.13(1)). It further prescribes positive measures to be taken for the fulfilment of the rights of persons with disabilities in relation to justice. For example, State parties are to promote appropriate training for those working in the field of administration of justice, including police and prison staff (art. 13(2)).

Although all provisions of the UNCRPD are relevant to access to justice, several, beyond Article 13, are of particular importance. 

► Article 5, Equality and Non-Discrimination, requires countries to recognize that all persons with disabilities are equal before and under the law, and are entitled without any discrimination to equal protection from and equal benefit of the law (art.5(1)). Countries are to further prohibit all discrimination on the basis of disability and guarantee persons with disabilities equal and effective legal protection against discrimination on all grounds.

► Article 12, Equal Recognition before the Law, requires countries to recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life, and to take appropriate measures to provide access by persons with disabilities to the support that they may require in exercising their legal capacity.

► Article 14, Liberty and security of the person, requires countries to ensure that persons with disabilities are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify deprivation of liberty. The implementation of Article 14 is particularly important because persons with disabilities have been subjected to serious human rights violations while detained or residing in institutions and also because those detained in institutions or isolated in their homes without any contact with the outside world may lack the ability or freedom to pursue legal claims for their own protection.

► Article 16, Freedom from exploitation, violence and abuse, requires countries to take all appropriate measures to protect persons with disabilities and directs them to put in place effective legislation and policies, including women- and childfocused legislation and policies, to ensure that instances of exploitation, violence and abuse against persons with disabilities are identified, investigated and, where appropriate, prosecuted.

► Article 23, Respect for private and family life, requires countries to take measures to protect the rights of persons with disabilities in relation to marriage, family, parenthood and relationships. With regard to parenthood, countries are to take measures to ensure that persons with disabilities retain their fertility on an equal basis with others.

4. Barriers Face by Persons with Disabilities in the Administration of Justice

In spite of protection afforded under international human rights law, particularly the UNCRPD, persons with disabilities usually continue to face numerous barriers in terms of access to justice. Barriers and impediments often involve combined forms of inaccessibility and other forms of discrimination. Overarching barriers, which can be compounded for those living in rural areas or in socio-economically disadvantaged situations, or for those facing multiple forms of discrimination, include: (1) Legal barriers; (2) Attitudinal barriers; (3) Information and communication barriers; (4) Physical barriers; and (5) Economic barriers. These five categories of barriers are discussed below in details.

4.1. Normative (Legal or Policy) Barriers

Legal barriers to justice for persons with disabilities include instances where the rights of persons with disabilities are not enshrined in law, or where law, policy or practice are contrary to the provisions of the UNCRPD. Additional barriers may be created where a State’s legal framework is confusing or complicated, or where there are overlaps or incompatibilities between international acts and national laws or policies (McChesney, 2021).

4.2. Attitudinal Barriers

Negative attitudes and false beliefs or assumptions on the part of relevant actors, including police, lawyers and judges, may result in persons with disabilities being considered and treated as less credible at all stages of legal processes – including when reporting a crime, in terms of whether one can serve as a witness or in making legal decisions, seeking remedies for alleged violations of their rights, or otherwise participating in legal proceedings (McChesney, 2021).

4.3. Information and Communication Barriers

Persons with disabilities cannot seek remedies for injustices if they do not know what their legal rights are, or how to exercise them under law. In many countries there is limited access to information provided in accessible formats, for example educational materials regarding one’s rights or on what constitutes a crime and how to report it, or how to find legal or other services. Lack of accessible information or modes of communication further limits the ability of persons with disabilities to report crimes or their effective participation in legal proceedings (McChesney, 2021).

4.4. Physical Barriers

Access to justice for persons with disabilities can be impeded where measures have not been taken to ensure the accessibility of relevant physical environments, including court houses, police stations, and the offices of lawyers and relevant service providers such as victims’ advocates and healthcare facilities where forensic evidence is gathered (McChesney, 2021).

4.5. Economic Barriers

Persons with disabilities are disproportionately among the world’s poor. A lack of economic resources can directly impact one’s access to justice in numerous ways. For example it can affect one’s ability to engage and pay for quality legal counsel where it is not provided at no cost; to engage in litigation, which can be expensive and lengthy; or otherwise seek remedies for alleged violations of rights, or to serve as a juror when doing so takes one away from one’s gainful employment or pursuit of a livelihood (McChesney, 2021).

5. Ensuring Access to Justice for Persons with Disabilities by Overcoming the Barriers

This article has reviewed a broad range of barriers facing persons with disabilities in relation to access to justice. Overcoming those barriers will require a holistic and integrated approach and possible actions for overcoming these barriers.

5.1. Overcoming Legal Barriers

overcome legal barriers can be carried out by comprehensive reviews of the legislative framework, to identify legal barriers posed by discriminatory legislation, regulations, policies or practices. Where legal barriers are found to existed national/domestic laws and policies should be amended, as indicated in Article 4, General Obligations, of the UNCRPD, in order to create enabling disability law and policy frameworks: for example, ensuring that non-discrimination applies to persons with disabilities, ensuring that reasonable accommodation is a required element of non-discrimination and inclusion of Disabled People Organisations (DPOs) in law and policy development.

Once national/domestic laws and policies have been brought in line with the UNCRPD, it is important that the disability community, national human rights institutions and government bodies (e.g., ministries of justice, national judicial training institutes, electoral commissions, and law reform commissions) should engage in training on the content and interpretation of disability rights standards (Stephanie, 2018).

5.2. Overcoming Attitudinal Barriers

The attitudes, perception and awareness of police officers, lawyers, judges, staff of correctional facilitates, and other professionals in the justice system on how to accommodate persons with disabilities effectively and make the processes accessible and inclusive are extremely important. There is a huge need for disability awareness training and capacity-building among all law enforcement agencies and justice sector personnel (Stephanie, 2018).

Approaches to training may entail the following:

1. Including disability components, including the role of the justice sector in implementing relevant international standards, such as the UNCRPD, in programmes designed to strengthen justice sector institutions.

2. Ensuring that regular training of police, prosecutors and prison officials should includes a disability component and covers accessible communications and reasonable accommodations for persons with disabilities in the criminal justice context. Law enforcement officers should receive adequate and sufficiently in-depth training on the needs and rights of persons with disabilities to enable them to respond effectively to crimes involving persons with disabilities.

3. Improving the investigative capacity of police /or prosecutors through disability awareness training. Training should also be provided on cultural competence, to allow officers to work effectively with persons with disabilities across different cultures - for example, indigenous persons with disabilities.

4. Including persons with disabilities and Disabled People Organizations (DPOs) in community programmes on crime prevention and in community policing.

5. Providing training to strengthen the skills of attorneys interested in litigating in disability cases and building a network of appropriately-trained attorneys (UNDP, 2020).

Training programmes should be devised in collaboration with persons with disabilities 

and their representative organizations. One strategy for addressing attitudinal barriers is working to increase the full participation and inclusion in the legal profession of persons with disabilities. This may well require the removal of discriminatory policies and practices in the admissions process for law school, para-legal training and related training so that persons with disabilities can enter and participate in the legal profession. 

In addition, reasonable appropriate accommodation must be provided for persons with disabilities in training for legal profession jobs. This requires, for example, that disability accommodation services are offered at law schools and universities more generally. Other strategies include coverage of disability law in judicial professional development and continuing legal education sessions. Including disability law as a component of legal education and continuing professional development will raise the general level of awareness of disability law and the accommodation of persons with disabilities in accessing justice.

There is also a need for community-level awareness-raising on disability and for empowerment of communities to support their members, including persons with disabilities, in obtaining access to justice; this includes for example ensuring that persons with disabilities enjoy equal access to legal aid services and legal literacy programmes, implementation of campaigns against stigma and stereotyping, and provision of human rights training for key service providers (UNDP, 2020).

5.3. Overcoming Information and Communication Barriers

Capacity development regarding disability for those involved in the administration of justice should include a focus on accessible communications and information; and a national scoping exercise on access to justice for persons with disabilities should consider the extent to which informational and communications barriers may exist at different stages of legal processes. In consultation and cooperation with persons with disabilities, governments should consider in developing a comprehensive disability accessibility plan that covers communications with persons with disabilities in ways that are accessible to them, for example, sign language interpreters, Braille, and others (Stephanie, 2018).

5.4. Overcoming Physical Barriers

In order to ensure physical access to justice sector facilities/buildings, police stations, courthouses and prisons must be accessible to persons with disabilities. Disabled People Organizations (DPOs) should be consulted and provide input on accessibility measures prior to any new construction or renovation of such facilities/buildings. Furthermore, accessibility audits conducted in collaboration with DPOs should be performed on all existing infrastructure with the goal of developing low-cost strategies to ensure physical accessibility to justice sector facilities/buildings including courthouses and police stations (Stephanie, 2018).

5.5. Overcoming Economic Barriers

The recommended scoping exercise should include an analysis of economic barriers to 

access to justice face by persons with disabilities. The nature of such barriers may vary from country to country. However, in seeking to overcome economic obstacles, the critical role of legal aid should be considered, as well as the availability of transportation and necessary support or medical services. Budgeting may also be necessary for appropriate accommodation for individuals requiring assistance, for instance to fund sign language interpreters, aids for the blind and the wheel chair users, etc (Stephanie, 2018).

6. Specific Areas of Concern

6.1. The Role of the Police in Access to Justice for Persons with Disabilities

As the first point of contact with the criminal justice system, the police play a very significant role in shaping the way in which alleged offences are handled, and whether cases proceed to trial. Given their role as gatekeepers to the justice system, the attitudes and dispositions of the police towards persons with disabilities who are victims of crime have a significant bearing on those victims’ experiences of seeking legal redress. Police perceptions of people with disabilities, not least their capacity to be reliable reporters and witnesses of crime, have been shown to be key to understanding how incidents of abuse or harassment are handled. 

Unfortunately, in many countries police officers lack awareness of disability or of working with victims with disabilities and, indeed, usually endorse general stereotypes of persons with disabilities as vulnerable and lacking the capacity to be competent and credible reports of crime and therefore poor witnesses. In addition, many police officers have difficulty distinguishing between different disabilities, most particularly intellectual disability and mental illness, and may not be able to recognize where persons with disabilities require additional support.

Negative experiences with law enforcement officers and fear that reported crimes will not be taken seriously can contribute to barriers in the reporting of crimes. Such barriers can also include uncertainty on the part of people with disabilities and third parties regarding what constitutes a crime, and when reporting of an incident should take place. Reporting can also be complicated where there exists variability in police policies and practices relating to who handles people with disabilities when they report a crime and where there are no clear recording procedures for crimes relating to persons with disabilities. Persons with disabilities also face challenges when there is a lack of accessible police stations, information and modes of communication. For example deaf people may have difficulty in making contact with the police in an emergency situation (UNHRC, 2017). Therefore, positive perception or attitude of police officers about disability, play an important role in access to Justice for people with disabilities

6.2. The Role of Lawyers in Access to Justice for Persons with Disabilities

Persons with disabilities may face barriers to accessing adequate and quality legal counsel for a variety of reasons. Where legal aid services are not provided at low or no cost, one may lack the economic means to engage a lawyer. Where information is not available in accessible formats, persons with disabilities may not be able to identify or locate a lawyer, or be aware of how a lawyer can be of assistance. Similarly, where accessible and affordable transportation is not available or where a lawyer’s office is not accessible, persons with disabilities may be unable to reach or enter their offices. In some cases lawyers lack training to work with or best serve clients with disabilities and this can affect the quality of service obtained by the client. Therefore, to ensure effective role of lawyers in access to Justice for people with disabilities, disability-orientated lawyers should be involved in providing legal services to people with disabilities (UNHRC, 2017).

6.3. The Role of Service Providers in Access to Justice for Persons with Disabilities

In navigating justice systems, those who have experienced crime often need services 

beyond those of law enforcement officers, including services from victim advocates or health care providers. Victim advocates are professionals trained to support victims of crime. They can explain how the justice system works, offer information, emotional support or help in identifying specific sources of support or resources such as support groups, and can even assist in the process of filling out paperwork. In some cases advocates accompany survivors of crime to court and provide counselling. For persons with disabilities, many of the overarching barriers highlighted above can affect their ability to obtain such support. Barriers can include economic barriers where State or other support for such programmes does not exist, as well as barriers where physical environments and facilities are not accessible, where information or communication opportunities are not available in accessible formats, and in cases where victims’ advocates hold negative views on persons with disabilities or lack understanding of how to work with clients with disabilities. Similar barriers may be faced in relation to hospitals or medical providers that play an important role in not only treating those who have experienced abuse or assault but also in terms of evidence collection, such as sexual assault forensic exams, or in treatment where one has been the victim of physical or sexual assault or abuse (UNHRC, 2017).

6.4. The Role of Courts in Access to Justice for Persons with Disabilities

Beyond the challenges outlined above, persons with disabilities face legal barriers to their participation in legal proceedings in court, including legislation, regulations, policies, or practices expressly barring persons with disabilities from serving as witnesses or jurors. Participation can also be severely limited by a lack of accessible information or communications - for example where information is not available in accessible formats, examples being sign language provision for people who are deaf; easy-to-read material for persons with cognitive disabilities or large print for persons with low vision; or where assistive technology is not made available. Information and communication barriers can be compounded in instances where persons with disabilities do not speak the dominant language or the language used in proceedings.

Inaccessibility of proceedings may also be experienced where measures have not been taken to ensure the accessibility of relevant physical environments. In the case of courthouses this includes building entrances; courtrooms, including counsel tables and jury and witness boxes; bathrooms; public service offices, such as those used by victim support services or clerks; and holding pens, where criminal defendants may be held while awaiting court appearances. Physical barriers can impede access to justice in instances where the offices of lawyers, service providers and police stations are physically inaccessible. 

As noted above, persons with disabilities also face legal barriers to justice in instances where their rights are not protected under domestic law. Courts can, however, play an important role in the interpretation and enforcement of human rights treaty obligations. In most legal systems where the UNCRPD has been ratified, courts will possess the authority to consider its human rights standards, either because international standards have been expressly incorporated into domestic law and as such are binding, or because courts are able to use international standards as a guide to interpreting domestic law. In some instances international human rights standards may be helpful in filling gaps where domestic law is ambiguous or under-developed. This may be especially true in legal systems where disability rights standards are under-developed. An initial challenge with a newly ratified treaty such as the UNCRPD is for judges to be made aware of its obligations. In many cases neither judges nor lawyers have any background in disability law, which underscores the importance of training judges and lawyers in the rights of persons with disabilities. In many African countries, as in many countries around the world, disability law frameworks are not yet fully developed. Some of the concepts in the UNCRPD are not yet incorporated into domestic law and policy. It is for this reason that some judges may not be comfortable with rendering decisions on the basis of the UNCRPD, even if their country has ratified the treaty (UNHRC, 2017).

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

Despite the wide variety of legal, social, economic and geographical systems in the 

world, countries can and should align their laws, rules, regulations, guidelines, protocols, practices, and policies on these Principles and Guidelines. However, the Principles and Guidelines are not intended to preclude innovation, provided that such innovation complies with the Convention and the Principles and Guidelines and that it seeks to ensure equal access to justice. Nor should they be interpreted as limiting any other international, regional or national laws or standards that are more conducive to the realization of the right of access to justice for persons with disabilities (ICJ, IDA and UNPD, 2020). 

Therefore, the International Commission of Jurists (ICJ), the International Disability Alliance (IDA) and the United Nations Development Programme (UNDP) (2020) outline the following 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. States shall guarantee that persons with disabilities enjoy legal capacity on an equal basis with others and, where necessary, shall provide the support and accommodations necessary to exercise legal capacity and guarantee access to justice.

2. To that end, States shall:

(a) Ensure that all persons with disabilities are considered to have legal capacity, and the right to act on and exercise legal capacity;

(b) Recognize and assume the full capacity and right of persons with disabilities to participate in the proceedings of all courts, tribunals and forums;

(c) Ensure that constructs such as “cognitive incapacity” and “mental incapacity”, as determined, for instance, by functional or mental status assessments, are not used to restrict a person’s right to legal capacity;

(d) Repeal or amend all laws, regulations, policies, guidelines and practices that directly or indirectly restrict the legal capacity of persons with disabilities, including those that allow for substituted decision-making and those that require that a person be “of sound mind” to take any action, thereby excluding persons with disabilities from equal access to justice;

(e) Repeal or amend all laws, regulations, policies, guidelines and practicesthat establish and apply doctrines of “unfitness to stand trial” and “incapacity to plead”, which prevent persons with disabilities from participating in legal processes based on questions about or determinations of their capacity;

(f) Repeal or amend all laws, regulations, policies, guidelines and practicesthat restrict or exclude witnesses with disabilities from presenting testimony based on assessments of their capacity to testify;

(g) Repeal or amend all laws, regulations, policies, guidelines and practicesthat authorize or otherwise empower medical professionals to be the sole or preferred “experts” in determining or opining on a person’s capacity to make decisions, to testify or for any other purpose;

(h) Repeal or amend all laws, regulations, policies, guidelines and practices preventing persons with disabilities from initiating and pursuing legal claims;

(i) Create an actionable and enforceable right to receive the individually determined procedural accommodations, including support, necessary to enable persons with disabilities to participate effectively inall proceedings in any court, tribunal or forum;

(j) Provide intermediaries or facilitators, wherever and whenever needed, to 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;

(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 restorative justice, 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 prison, a mental health facilityor other institution for a definite or indefinite term (sometimes referred to as “care-related hospitalization”, “security measures” or “detainment at the governor’s pleasure”) based on perceived dangerousness or need for care.

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

Guidelines

1. To guarantee equal access to justice and non-discrimination, States must ensure that the facilities and services used in legal systems are built, developed and provided on the basis of the principles of universal design by taking, at a minimum, the following actions:

(a) Enacting and implementing enforceable laws, regulations, policies, guidelines and practices that guarantee the accessibility of all facilities and services used in the justice system, based on the principles of universal design, including:

(i) Courts, police facilities, prisons, detention and forensic facilities, jury facilities, administrative offices and other such places (including toilets, cells, offices, entrances, lifts, canteens and recreational spaces in those places);

(ii) Information, communications and other services, including information and communications technology and systems;

(b) Ensuring that all means of transportation used in the justice system areaccessible;

(c) Ensuring that adequate financial resources are available to make the justice system physically accessible to persons with disabilities in accordance with the principles of universal design;

(d) Guaranteeing the provision of procedural accommodations when facilities and services fail to ensure access to the existing physical environment, transportation, information and communications for persons with disabilities.

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

Guidelines

1. To avoid discrimination and guarantee the effective and equal participation of persons with disabilities in all legalproceedings, States shall provide genderand 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.

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

1. Establishing, funding and implementing a programme of independent intermediaries or facilitators trained to provide communication assistance to parties to the proceedings and the justice system to determine whether accommodations and support are necessary and which accommodations and support are appropriate, and to assist with communication throughout the course of the proceedings;

2. Designing and implementing a programme of independent intermediaries or facilitators in a manner consistent with local procedures and customs, and in line with the Convention on the Rights of Persons with Disabilities;

Procedural adjustments and modifications

(c) Adopting procedures for hearings that ensure the fair treatment and full participation of persons with disabilities, including children with disabilities, during proceedings, as appropriate, such as:

(i) Adaptation of the venue;

(ii) Appropriate waiting spaces;

(iii) Removal of cloaks and wigs;

(iv) Adjustments to the pace of proceedings;

(v) Separate building entrances and waiting rooms and protective screens to separate persons with disabilities from others if necessary due to physical or emotional distress;

(vi) Modifications to the method of questioning in appropriate circumstances, such as allowing leading questions, avoiding compound questions, finding alternatives to complex hypothetical questions, providing extra time to answer, permitting breaks as needed and using plain language;

(vii) Use of pretrial video recording of evidence and testimony, if necessary, practical and possible, in such a manner as not to contravene basic rights, such as the right to confront and crossexamine witnesses;

(d) Allowing persons with disabilities, at all stages of the process if they sochoose, to be accompanied by family, friends or others to provide emotional and moral support, without replacing, however, the role of an intermediary or facilitator;

Communication support

(e) Ensuring that all processes in the justice system provide the technical and other support necessary for parties,witnesses, claimants, defendants and jurors to use any form of communication as necessary for their full participation, including:

(i) Assistive listening systems and devices;

(ii) Open, closed and real-time captioning, and closed caption decoders and devices;

(iii) Voice, text and video-based telecommunications products;

(iv) Videotext displays;

(v) Computer-assisted real-time transcription;

(vi) Screen reader software, magnification software and optical readers;

(vii) Video description and secondary auditory programming devices that pick up audio feeds for television programmes;

(f) Supporting communication, in addition to intermediaries or facilitators, through the use of third parties, including:

(i) Note-takers;

(ii) Qualified sign language and oral interpreters;

(iii) Relay services;

(iv) Tactile interpreters;

(g) Ensuring that all interpreters are able to interpret effectively, accurately and impartially, both receptively (i.e. understanding what persons with disabilities are saying) and expressively (i.e. having the skill necessary to convey information back to those persons), while using any necessary specialized vocabulary (e.g. legal or medical) and respecting professional and ethical standards;

Procedural accommodations for persons accused of crimes, prisoners and detainees

(h) Ensuring that police officers, prosecutors and others involved in arrests and investigations of criminal offences are knowledgeable about the rights of persons with disabilities, are alert to the possibility that a person may have a disability and, throughout the course of an arrest or investigation, adjust their responses accordingly;

(i) Ensuring that independent third persons, such as attorneys or others, are available to accompany persons with disabilities to the police station to assist them in the investigative process, including, for example, fingerprinting or giving a biological sample, and that intermediaries or facilitators,or similar, are available to facilitate communication between persons with disabilities and law enforcement and court personnel;

(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;

Requests for and offers of accommodations

(k) Enacting and implementing laws, regulations, policies, guidelines, practices and processes that enable persons with disabilities to request procedural accommodations, including modifications of or support in legal processes, with appropriate protection of their privacy;

(l) Ensuring, throughout the course of legal proceedings, that all participants are advised of the availability of procedural accommodations if needed and desired because of disability;

(m) Ensuring a process for determining the need for and providing procedural accommodations, including communication assistance, to children with disabilities, as well as additional safeguards, when necessary, according to their evolving capacities and their right to have their views heard.

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.

Guidelines

1. To guarantee the right to timely and accessible information, States shall:

(a) Enact enforceable laws, regulations, policies and guidelines that fully recognize a right to timely notice and information about all aspects of judicial processes;

(b) Ensure that information about justice systems and procedures can be accessed by various methods, including, as appropriate and needed:

(i) Sign language;

(ii) Video and audio guides;

(iii) Telephone line advice and referral services;

(iv) Accessible websites;

(v) Induction loop, radio or infrared systems;

(vi) Amplification devices and document magnifiers;

(vii) Closed captioning;

(viii) Braille;

(ix) Easy Read and plain language;

(x) Facilitated communication;

(c) Ensure that all notices that require a response or an action to be taken (e.g. summonses, subpoenas, writs, orders and sentences) are availableby accessible means and in accessible formats, such as those listed above in guideline 1 (b);

(d) Ensure that notices and information include clear understandable information about how a procedure works, what to expect during a process, what is expected of a person, where to get help with understanding the process and the person’s rightsin the process, in language that is not merely a repetition of the statute, 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, forinstance, interpreters, guides, readers, intermediaries and facilitators, and other forms of support.

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

1. States shall ensure that all substantive and procedural safeguards recognized in international law, whether in criminal, civil or administrative procedures, including the presumption of innocence and the right to remain silent, are afforded to all persons with disabilities, on an equal basis with others. Procedural accommodations, when needed, must be available to all persons with disabilities, including suspects and accused persons, who require assistance to participate effectively in investigations and judicial proceedings.

2. Accordingly, States shall:

(a) Ensure that all suspects and accused persons with disabilities are presumed innocent until proven guilty under the law;

(b) Ensure that suspects or accused persons with disabilities are provided with accessible and understandable information about their rights, including the right not to incriminate oneself;

(c) Ensure that, in all interactions with first responders, persons with disabilities have the right to be free from discrimination and any use of forceor 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 orlaw enforcement involvement;

(d) Ensure the provision of procedural accommodations to persons with disabilities at the time of their arrest, including procedural adjustments and communication support, and the use of de-escalation techniques, as appropriate, to safeguard all due process guarantees and prevent police violence and abuse;

(e) Draft, enact and implement laws, regulations, guidelines, procedures and policies to protect persons with disabilities from being exploited on account of their disability in any phase of the justice process;

(f) Ensure that procedural accommodations, including support, for effective participation are available so that persons with disabilities have the right, on an equal basis with others, to make their own choices of how to defend themselves;

(g) Ensure that health-care and psychosocial support are available at the request of persons with disabilities, based on their free and informed consent, irrespective of the outcomeof any police action or judicial proceedings, and not contingent on a plea bargain, confession or conviction.

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

Guidelines

1. To guarantee the right to a fair trial, States shall provide free or affordable legal assistance to children with disabilities in all matters, and to all other persons with disabilities in all legal procedures and proceedings that relate to violations of human rights or fundamental freedomsor those that could negatively affect such rights or freedoms, in particular the rights to life, liberty, personal integrity, property, adequate housing, decisionmaking autonomy and family integrity. Legal assistance must be competent and available in a timely manner for persons with disabilities to participate equally in any legal proceedings.

2. To that end, States shall:

(a) Enact and implement laws, regulations, policies, guidelines and practices affording the right to legal assistance in all judicial and quasi-judicial proceedings, regardless of the role of persons with disabilities in the process or the possible consequences or outcomes;

(b) Create, fund and implement legal assistance programmes to provide free legal representation to persons who cannot afford to retain legal assistance, including persons with disabilities, at a minimum in matters concerning:

(i) Loss of life or liberty, including by imprisonment, detainment,placement in an institution, forced or involuntary medical treatment (e.g. sterilization) or involuntary hospitalization; loss of legal capacity (e.g. guardianship); or loss of family integrity by forfeiture of parental or custodial rights;

(ii) Loss of housing, shelter or property;

(iii) Any other situation, including all criminal matters that do not carry the risk of incarceration, small claims and civil cases, in which a person with disabilities may bedisadvantaged in communicating, understanding or being understood in the process;

(c) Ensure, in addition to the matters listed above in guideline 2 (b), that free legal assistance is available to persons with disabilities on terms that are no less favourable than those for persons without disabilities and, at a minimum, whenever necessary, on an individualized basis, as a procedural accommodation;

(d) Ensure, in addition to legal assistance, access to legal advice through, for example, telephone or digital gateway services, paralegal services and online legal help services, using assistive technology as necessary;

(e) Repeal or amend any laws, regulations, policies, guidelines or practices that restrict the legal capacity of persons with disabilities to retain and instruct a lawyer;

(f) Ensure easy access to legal assistance, removing all administrative, communication and physical barriers to such access;

(g) Ensure that specialized services for victims (e.g. gender-based violence units) are equally accessible for persons with disabilities;

(h) Make procedural accommodations, such as interpreters, assistive technology and intermediaries and facilitators, or the resources necessary to obtain such accommodations, available to lawyers 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 violence, in particular women and girls with disabilities, including professional victim support, advice about legal rights, and assistance in reporting crimes and initiating legal proceedings.

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

Guidelines

1. The right to equal access to justice requires that persons with disabilities have the opportunity to participate directly in adjudicative processes and be involved in various roles in the administration of justice on an equal basis with others. States should ensure that persons with disabilities are able to act as judges, lawyers, prosecutors, witnesses, jurors, experts and court officials in the justice system without discrimination.

2. To this end, Governments, legislatures and other authorities, including judicial councils and other independent judicial governing bodies and independent self-governing legal professional bodies, must each, within their respective roles, take the following actions:

(a) Remove barriers that prevent or discourage persons with disabilities from entering justice system-related professions by, for instance:

(i) Providing reasonable accommodations throughout legal and justice-related education programmes;

(ii) Providing reasonable accommodations during certification and licensing examinations or processes;

(iii) Prohibiting questions about health and disability in applications for admission to the legal profession and positions in the justice system;

(iv) Ensuring that all facilities and structures in the justice system are universally accessible to workers with disabilities.

(b) Remove all disability-related barriers, including laws, that prevent persons with disabilities from being judges or jurors or serving in any other justicerelated positions;

(c) Ensure the equal participation of persons with disabilities in the jury system by providing all necessary support, reasonable accommodations and procedural accommodations;

(d) Consult closely with and actively involve persons with disabilities and their representative organizations in all discussions and decision-making about justice-related issues by, for example, providing meaningful participationon boards, committees, commissions, sentencing councils and other guidance and oversight organizations;

(e) Collect disaggregated data on the participation of persons with disabilities in the justice system and, using that data, develop andimplement strategies to reform policies, practices and laws to ensure equal access to justice.

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

1. States must have accessible, easy-to-use, transparent and effective mechanisms for individuals to report complaints about human rights violations and crimes. Complaint adjudicators and tribunals must provide remedies that are individually tailored and may include redress and reparation.

2. Accordingly, States shall:

Complaint mechanisms

1.  Establish complaint mechanisms, for instance, national human rights institutions, tribunals and administrative bodies – with the power to hear complaints, including complaints about disability-based discrimination, from persons with disabilities and others and to order remedies;

2. Ensure that persons with disabilities may file criminal complaints on an equal basis with others;

3. Ensure that civil and criminal complaint mechanisms are accessible, using, for example, hotlines and e-service complaint methods;

4. Provide voluntary alternative dispute resolution mechanisms, such as conciliation, mediation, arbitration and restorative justice;

5. Ensure that complaint mechanisms and investigations are gender sensitive to guarantee that victims of gender-based violence are able and willing to come forward safely;

6. Ensure that special protection units (e.g. those dealing with gender-based violence, hate crime, children and trafficking in persons) are accessible to persons with disabilities and responsive to their needs;

7. Ensure that mechanisms, when appropriate and desired, provide for anonymity and confidentiality;

Responding to grave, systematic, group or 

large-scale violations

8. Ensure that complaint systems and the justice system are capable of detecting and responding to grave, systematic, group and large-scale violations of human rights through, for instance, class actions, actiones populares, public inquiries and prosecutions, following a complaint or on the initiative of the system itself;

Investigations

9. Ensure that all investigators, including law enforcement officials, are knowledgeable about the rights of persons with disabilities and are alert, throughout the course of investigations, to the potential need for procedural accommodations when investigations involve persons with disabilities;

10. Ensure that, when appropriate, an intermediary or facilitator or other appropriate third party is enlisted to assist in the investigation process;

11. Ensure that, when working with victims with disabilities, law enforcement officials assess the risk of the former being subjected to further offences, and whether any voluntary protective measures (such as a safe haven) are needed;

Remedies

12. Ensure, in the criminal context, that those who abuse or otherwise mistreat persons with disabilities are prosecuted and, when appropriate, convicted or subject to other effective sanctions;

13. Ensure that effective remedies are in place for human rights violations,including the right to be free from disability-based discrimination and the rights to restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. Such remedies should, among other things:

(i) Be enforceable, individualized and tailored to meet the needs of claimants;

(ii) Ensure that victims are protected from repeat violations of their human rights;

(iii) Be proportional to the gravity of the violations and the circumstances of each case;

(iv) Be provided on the basis that an individual’s free and informed consent is required for any rehabilitative measures;

(v) Address the systemic nature of human rights violations.

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

Guidelines

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 monitoringmechanisms or create new ones when they do not exist.

2. States, therefore, should take the following actions:

(a) Designate independent monitoring mechanisms in accordance with Article 33 (2) of the Convention on the Rights of Persons with Disabilities, including establishing and maintaining national human rights institutions in accordance with the principles relating to thestatus of national institutions for the promotion and protection of human rights (the Paris Principles) with a mandate to monitor implementation of the Convention;

(b) Ensure that all monitoring mechanisms have institutional, financial and political independence;

(c) Promote the regular exchange of information among monitoring mechanisms to identify challenges and implement strategies to address common issues;

(d) Ensure the meaningful participation of persons with disabilities and their representative organizations in designing and implementingindependent monitoring mechanisms;

(e) Include a mandate to actively monitor and identify violations of the rights of persons with disabilities, particularly those deprived of liberty and placed in institutional settings;

(f) Include a mandate for the independent monitoring mechanisms to gather and publicly report data on human rights violations, including barriers to access to justice;

(g) Ensure a mandate and funding for raising awareness about the human rights-based approach to disability andsupport training programmes for this purpose.

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

1. States must remove barriers to justice for persons with disabilities by providing training on the rights of persons with disabilities to all justice officials, including the police, judicial officers, lawyers, health professionals, forensic experts, victim service professionals, social workers, and probation, prison and youth detention staff.

2. To this end, Governments, legislatures and other authorities, including judicial councils and other independent judicial governing bodies and independent selfgoverning legal professional bodies, musteach, within their respective roles, take the following actions:

(a) Enact and implement laws, regulations, policies, guidelines and practices that create a legal obligation for all persons who have a role in the administration of justice to participate in human rightsbased training on the rights of persons with disabilities and the provision of accommodations in accordance with guideline 2 (j);

(b) Provide training on an ongoing basis to all those working in the administration of justice, including by national human rights institutions and representative organizations of persons with disabilities;

(c) Ensure that persons with disabilities and their representative organizationsparticipate in the development and presentation of all training referenced in the present guidelines;

(d) Monitor and evaluate training and ensure the participation andactive involvement of representative organizations of persons with disabilities in such monitoring and evaluation;

(e) Launch awareness-raising strategies that include training programmes and media campaigns, based on the human rights model of disability, for all judicial officers, lawmakers, policymakers and law enforcement officials to eliminate prejudice and promote recognition of rights;

(f) Make training manuals widely available for all those engaged in the administration of justice, especially police officers, prosecution authorities and judicial officers;

(g) Use training to familiarize police officers, including first responders and investigators, prosecution personnel and judicial officers, with good practices in interactions with persons with disabilities, including response, behaviour and appropriate accommodations;

(h) Develop, fund and implement guidelines and training for lawyers and law students on the rights of persons with disabilities and procedural accommodations, in accordance with guideline 2 (j);

(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 aspersons before the law, including combating harmful genderand disability stereotypes and prejudices;

(v) The obligation to respect the legal capacity of persons withdisabilities, including legal agency and standing;

(vi) Communication skills, including identifying the need to engage experts for communication assistance;

(vii) De-escalation of situations and prevention of the use of force;

(viii) Procedural accommodations;

(ix) Reasonable accommodations;

(x) Combating ableism and overcoming prejudice against persons with disabilities;

(xi) Sexual, reproductive and family rights;

(xii) Intersecting forms of discrimination on the basis of disability and other grounds, including sex, gender, indigenous status, race, sexual orientation, migration status, minorities and disadvantaged communities, and poverty;

(xiii) Awareness and understanding of the rights of persons with disabilities to have equal access to information.

8. Conclusion

Access to justice is a fundamental right, as well as a prerequisite for the protection of all other human rights. The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) interprets the right to access to justice in the context of disability, directing the State parties to ensure effective access to justice for persons with disabilities on an equal basis with others and prescribing positive measures to be taken for the fulfillment of rights in this regard. This article highlighted a variety of overarching obstacles/barriers faced by persons with disabilities, as well as specific areas of concern, in relation to access to justice and also set out approaches to overcoming them. Most importantly, ten international principles and guidelines as endorsed by the International Commission of Jurists (ICJ), the International Disability Alliance (IDA) and the United Nations Development Programme (UNDP) (2020) were reviewed in this article.

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WHO and World Bank (2011). World Report on Disability. Retrieved from: http://www.who.int/disabilities/world_report/2011/report.pdf on 5 July, 2022.