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Article 13 - Access to justice
Background
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13 Background
Seventh Session | Fifth Session | Fourth
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Working Group | References
Fourth Session
African Group
Canada
Chile
European Union
India
Japan
International Disability Caucus
Landmine Survivors Network
People with Disabilities Australia
World Federation of the Deaf
Governments
African Group
ARTICLE 9
EQUAL RECOGNITION AS A PERSON BEFORE THE LAW
States Parties shall:
(a) Recognize persons with disabilities as individuals with equal rights before the law;
(b) Accept that persons with disabilities have full legal capacity on an equal basis except as provided by law ;
(c) Ensure that where assistance is necessary to exercise that legal capacity:
(i) The assistance is to the extent possible proportional to the degree of assistance required by the person concerned and tailored to their circumstances, and does not undermine the legal capacity, rights and freedoms of the person;
(ii) Relevant decisions are taken by a competent, (independent) and impartial authority in accordance with a procedure established by law and with the application of relevant legal safeguards (including periodic review)
(iii) Provide persons with disabilities with adequate support services to develop networks for supported decision-making.
(d) Ensure that persons with disabilities who experience difficulty in asserting their rights, in understanding information and in communicating have access to assistance to understand information presented to them and to express their decisions, choices and preferences, to participate in all stages of procedure in courts and tribunals , as well as to enter into binding agreements or contracts, to sign documents and act as witnesses;
(e) Take all appropriate and effective measures to ensure the equal right of persons with disabilities to own, inherit, use or otherwise dispose of property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit;
Canada
ARTICLE 9
REVISED PROPOSAL BY CANADA
1. States
Parties shall recognize that, in civil matters, adult's persons with
disabilities have a legal capacity identical equal to that of other
adult's persons and shall accord them equal opportunities to exercise
that capacity. In particular, they shall recognize that adult's persons
with disabilities have equal rights to conclude contracts and to administer
property and shall treat them equally in all stages of procedure in courts
and tribunals.
2. States
Parties shall ensure that where adults persons with disabilities
need support to exercise their legal capacity, including assistance to understand
information and to express their decisions, choices and wishes, the assistance
is proportional to the degree of support required and tailored to the adult's
person's individual circumstances.
3. Only a competent,
independent and impartial authority, under a standard and procedure established
by law, including provision for review, can find a adult
person not to have legal capacity unable
to exercise their legal capacity with support. States Parties
shall provide by law for a procedure with appropriate safeguards, including
provision for review, for the appointment of a personal representative
to exercise legal capacity on the adult's person's
behalf. Such an appointment should be guided by principles consistent with
this Convention and international human rights law, including:
(a) ensuring that the appointment is proportional to the
adult'sperson'sdegree of legal incapacityinability to exercise their legal capacity with support and tailored to theadult'sperson's individual circumstances; and,(b) ensuring that personal representatives take into account, to the maximum extent possible, the
adult'sperson's decisions, choices and wishes.
Chile
Article 9: Equal recognition as a person before the law.
It is proposed that the title of this article should reflect its contents, which is legal capacity, to the extent that its provisions refer to the legal capacity of a person with disabilities to acquire rights and assume obligations.
The wording of subparagraph (b), drafted by the working group, is acceptable. The word “accept” should be replaced by the word “recognize” and the sub-paragraph would thus begin:
(b) “Recognize that persons with disabilities have full legal capacity….”.
With regard to subparagraph (c), it should be borne in mind that at law, legal capacity involves:
- Capacity to enjoy : the capacity to acquire rights which are inherently unrestricted;
- Capacity to exercise: capacity to take action within the realm of the law, including assuming obligations.
This latter capacity may require in very exceptional circumstances assistance from third parties. Therefore, the wording of subparagraph (c ) drafted by the working group is acceptable.
However, given the importance of the issue and in the interest of safeguarding the human rights and fundamental freedoms of people who are so impaired as to require assistance on a more continuing basis and support or assistance from third parties in exercising their legal capacity ( which is referred to as formal assistance), the Convention should provided that such assistance should always be strictly exceptional and accompanied by a number of safeguards for the protection of persons, including the adoption of a decision on due process sanctioned by duly constituted tribunals (inter alia, the right to be duly notified or informed, the right to have full answer and to defence, be allowed time to produce evidence, the right to appeal and periodic revisions), the involvement of a public advocate in the process to protect the interests of the person with disability; the framework for the decision on formal assistance should always be respect of human rights and fundamental freedoms of individuals, oversight from time to time to ensure that such assistance is adequate, using the protection of the above-mentioned rights and freedoms as a frame of reference.
We support the working group's proposal to incorporate Kenya's input to the effect of inserting in subparagraph (e) the right to use or dispose of property; the subparagraph would read as follows:
(e) “Take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit use or otherwise dispose of property….”
A specific and separate article on access to courts for persons with disabilities as a form of the so-called equal protection under the law in exercise of their rights is proposed. While this international convention has dealt with the different types of access that should be guaranteed to persons with disabilities, it is vital to stress the issue of "access to courts", a broad concept which covers various substantive and procedural aspects. Such access constitutes one of the main pillars of the exercise of citizenship rights and has been particularly difficult for persons with disabilities, owing to the barriers and obstacles in that area which them their day in court. Here, we are referring not only to the right of persons with disabilities to bring an action for discrimination or violation of their rights because of their disabilities, but also to the prosecution of such action in various areas under the jurisdiction of civil, criminal, labour, neighbourhood courts etc, with the person with disabilities being either the plaintiff, defendant, complainant, respondent, witness, petitioner or appelant in non-contentious proceedings etc. Therefore, the following wording is proposed:
"Pursuant to the principle of equal protection before the law in the exercise of human rights, States should guarantee adequate access to courts for persons with disabilities, facilitating their effective role as direct or indirect parties to contentious and non contentious legal proceedings"
European Union
Draft Article
9
EQUAL RECOGNITION AS A PERSON BEFORE THE LAW
States Parties shall:
(a) Recognise persons with disabilities as individuals with rights before the law equal to all other persons;
(b) Accept that persons with disabilities have full legal capacity on an equal basis as others, including in financial matters;
EU Proposal: EU suggests replacing (a) and (b) with the following paragraph:“Recognise persons with disabilities as individuals with equal rights before the law and guarantee equality before the law, without discrimination against persons with disabilities;”.
(c) ensure that where assistance is necessary to exercise that legal capacity:
(i) the assistance is proportional to the degree of assistance required by the person concerned and tailored to their circumstances, and does not interfere with the legal capacity, rights and freedoms of the person;
(ii)relevant decisions are taken by a competent, independent and impartical authority in accordance with a procedure established by law and with the application of relevant legal safeguards including provisions for review;
EU Proposal: replace paragraph (c) with Canadian language:
“2. States
Parties shall ensure that where adult's persons with disabilities
need support to exercise their legal capacity, including assistance to understand
information and to express their decisions, choices and wishes, the assistance
is proportional to the degree of support required and tailored to the adult's
persons individual circumstances.
3. Relevant decisions, inter alia on the loss or restriction of legal capacity, are taken by a competent, independent and impartial authority in accordance with a procedure established by law and with the application of relevant legal safeguards including provisions for review;
4. States
Parties shall provide by law for a procedure with appropriate safeguards
for the appointment of a personal representative to exercise legal capacity
on the adult's person's behalf. Such an appointment should
be guided by principles consistent with this Convention and international
human rights law, including:
(a) ensuring
that the appointment is proportional to the adult's person's
degree of legal incapacity and tailored to the adult's person's
individual circumstances; and
(b) ensuring
that personal representatives take into account, to the maximum extent possible,
the adult's person's decisions, choices and wishes.”
(d) ensure that persons with disabilities who experience difficulty in asserting their rights, in understanding information, and in communicating, have access to assistance to understand information presented to them and to express their decisions, choices and preferences, as well as to enter into binding agreements or contracts, to sign documents, and act as witnesses; EU proposal: Delete 9(d)
(e) take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs, and to have equal access to bank loans, mortgage and other forms of financial credit;
EU proposal: Delete 9(e)
(f) ensure that persons with disabilities are not arbitrarily deprived of their property.
EU proposal: renumber 9(f) into 9(5)
India
Interventions made at the Fourth Session:
26.08.2004
Article 9:Equal recognition as a person before the law
Mr Chairman, in this article we are faced with a situation of competing claims where on the one hand persons with disabilities are asserting their full capacity and requiring its recognition by the law, on the other hand caregivers and families of certain subgroups prompted by considerations of care and protection are advocating for substituted decision-making. We would need to examine whether these competing claims can be inducted with in a model of assisted decision-making. The model proposed by Canada amongst others would need to be examined more closely. Mr Chairman, in our national laws, we are also faced with a situation where our general laws allow for disqualifying persons with psycho-social disabilities in exercising some of the civil rights, whilst our disability laws make provision for equal opportunity and full participation of persons with disabilities. Perhaps this dichotomy exists because the disqualifying regime preceded the disability rights movement. Mr Chairman while we are empathetic to the principle of full legal capacity, we are afraid that circumstances allowing for such exercise do not exist on the ground. We are not averse to relying on law as an instrument of social change, for us to do that, it becomes essential that this section may be cast in a more aspirational mode so that while current constraints are acknowledged future development is not curbed. We will be willing to cooperate with interested delegations in devising such a balance. We all also think the following article 10 and 11 are also to be reexamined from this perspective.
Japan
Art.9(g)
The Japanese Government wishes to make slight modification to our proposal
made in the 3rd Ad Hoc Committee in order not to be interpreted as generating
special rights that persons without disabilities could not enjoy in this
context:
"Take appropriate and effective measures to eliminate physical and communication barriers and to reduce understanding difficulty of persons with disabilities in order to exercise the rights provided in Article 14 of the International Covenant on Civil and Political Rights." (Modification made in the part "in order to exercise... Political Rights.")
Non-governmental organizations
International Disability Caucus
Draft Article 9: Equal Recognition as a Person Before and Under the Law
States Parties recognize the inherent nature of legal capacity. States Parties further recognize that individuals may make decisions in the context of interdependent relationships as well as independently, and that persons receiving support in decision-making retain their legal capacity, rights and freedoms. To this end, States Parties shall:
1. Recognize persons with disabilities as subjects of rights and obligations before and under the law, on an equal basis with others.
2. Recognize that persons with disabilities have legal capacity identical to that of other persons and shall accord them equal opportunities to exercise that capacity.
3. Recognize that legal capacity may be exercised with support, and to that end:
a. provide for legal mechanisms to recognize supported decision-making relationships between individuals, based on one person's expression of trust in another person or persons, and to create and implement advance directives and powers of attorney;
b. ensure that such mechanisms are not imposed on any person against his or her will;
c. establish legal standards for the above mechanisms, which shall include the obligation to respect the will and preferences of the individual concerned and to be free from any conflict of interest;
d. establish procedural safeguards to ensure the proper carrying out of obligations by a person providing support in decision-making; the person receiving support is entitled to be a party to such proceedings which in no case will make any determinations about him or her or over his or her objection;
e. provide to the public accessible information and education concerning the rights of persons receiving support in decision-making, and the obligations of persons providing support in decision-making, and about the use of advance directives and powers of attorney;
f. provide persons with disabilities with adequate resources to develop networks for supported decision-making.
4. Take appropriate and effective measures to eliminate physical, language and communication barriers, and to make all efforts to identify and utilize alternative means of communication and sign language interpretation, to support a person with a disability to make their decision, choices and wishes known.
5. Take all appropriate and effective measures to ensure the equal right of persons with disabilities to conclude contracts, to own or inherit property, to control their own financial affairs, and to have equal access to bank loans, mortgage and other forms of financial credit.
6. Take all appropriate and effective measures to ensure the equal right of persons with disabilities to participate in all stages of procedure in courts and tribunals.
Landmine Survivors Network
Draft Article
9 - EQUAL RECOGNITION AS A PERSON BEFORE THE LAW
SYNTHESIS OF PROPOSALS
States Parties shall ensure the rights of persons with disabilities to recognition
everywhere as persons before the law on an equal basis with the same opportunities
to exercise that capacity as other persons. States Parties undertake to:
(a) recognise that, whilst retaining full legal capacity, persons with disabilities
may require assistance in order to exercise their rights as a person before
the law. In determining whether assistance is required, and what form any
such assistance should take, States Parties shall:
(i) ensure the use of standards and procedures established by law and in
conformity with the principles and objectives of this Convention;
(ii) ensure that determinations are made through the use of a fair and public
hearing by a competent, independent and impartial tribunal;
(iii) ensure that the person in question is entitled to representation by
counsel, and that such representation shall be made available without payment
by that person to the extent that he or she does not have sufficient means
to pay for it;
(iv) ensure prompt and timely access to any adjudicative mechanisms, including
processes of appeal and review before a court or other competent, independent
and impartial tribunal, and a prompt decision on any such action;
(vi) ensure that assistance provided is tailored and proportional to the
needs and circumstances of the individual, and the least restrictive necessary
to facilitate the person’s exercise of their full legal capacity; and ensure
that those providing assistance act to further the person’s exercise of
their legal capacity, autonomy of decision-making and expression of decisions,
choices and preferences, and do not act to undermine the person’s full enjoyment
of their human rights, and that the person receiving assistance has the
right to refuse such assistance.
(f) ensure that persons with disabilities are treated on an equal basis
as others in all stages of procedure of courts, tribunals and all other
organs administering justice, including to provide evidence and act as witnesses;
(g) ensure the accessibility of legal proceedings to persons with disabilities,
including through the removal of physical and communication barriers and
the provision of reasonable accommodation; and
(h) ensure the rights of persons with disabilities to own, inherit and administer
property, conclude contracts, sign documents, and control their own financial
affairs, on an equal basis with others.
COMMENTS
Draft Article 9 is a critical component of the Convention, given that it
addresses the recognition of legal personality, which is a prerequisite
to the full enjoyment of all other rights. (Cf. “UN Covenant on Civil and
Political Rights: CCPR Commentary,” Manfred Nowak, p. 282; ICCPR, Article
16; CEDAW, Article 15; CERD, Article 5) The article also addresses some
of the ways in which exercise of legal capacity can be supported, as well
as contexts where legal capacity is of particular relevance. Such an article
is of particular importance for people with disabilities, for in many countries
people with disabilities are denied recognition of their full legal capacity
and are subsequently forced to relinquish autonomy for the substituted decision-making
and actions of others. Such actions in turn place people with disabilities
at greater risk of other human rights abuses.
The draft text as presented here was not proposed at the third session of
the Ad Hoc Committee, but is drawn in part from components of the Working
Group Draft Text, as well as specific proposals from several Ad Hoc Committee
members (Japan, Canada, Kenya). Throughout the article, the provisions maintain
the approach of the Working Group, which is to ensure that people with disabilities
are accorded recognition as persons before the law on an equal basis with
others. In this way, people with disabilities are not accorded lower (or
“diminished”) levels of legal capacity, but instead have access to assistance
should they need it (subject to appropriate legal safeguards and standards),
in order to exercise that legal capacity.
Draft Article 9(a) addresses the issue of assistance in exercising legal
capacity and, drawing in particular from the minimum guarantees found in
the ICCPR, responds to the concerns of many members that the Working Group
Draft Text does not contain sufficient procedural safeguards or standards.
For instance, Draft Article 9(a)(i) requires the use of standards and procedures
established by law and consistent with the principles and objectives of
the Convention. (Cf. ICCPR, Article 9(1), 14(1))
Draft Article 9(a)(ii) expressly requires the use of an independent, impartial
authority to make decisions related to the need for, and type of, assistance.
(EU, Canada, New Zealand) (Cf. ICCPR, Article 14(1)) Draft Article 9(a)(iii)
incorporates the right to affordable legal counsel, as a minimum requirement
for occasions when decisions are taken in relation to a person’s legal capacity.
(Cf. ICCPR, Article 14(3)(d)) Draft Article 9(a)(iv) ensures the availability
of appeals and review mechanisms, which was of particular concern to some
States. (Costa Rica, Mexico, Serbia and Montenegro, Jordan, EU, Norway)
(Cf. ICCPR, Article 14(5); CRC, Article 37(d))
Draft Article 9(a)(v) and (vi) relate to the type of assistance provided,
should it be determined that a person requires assistance in order to exercise
their legal capacity. Specifically, the provisions require that the assistance
be tailored to the individual’s needs and the least restrictive necessary,
so that the assistance has the effect of supporting the individual’s autonomy
and exercise of legal capacity, and avoids undermining (Uganda) the full
enjoyment of their human rights. In addition, the provision includes the
important right to refuse assistance, thus ensuring that the person receiving
assistance does not have their right to autonomy breached.
Draft Article 9(b) provides for equal treatment before tribunals and other
organs of justice, and references related activities such as the provision
of evidence or participation in proceedings as a witness. (Cf. CEDAW, Article
15(2); CERD, Article 5(a)) Some States wished to see such references deleted
from the text (India), but they are important to reference here, as in some
jurisdictions people with disabilities are expressly prohibited from acting
as witnesses and providing evidence, regardless of the capabilities to do
so.
Draft Article 9(c) incorporates the proposal (Japan, Botswana) for an express
reference to the need for legal proceedings to be made accessible to people
with disabilities, and also includes reasonable accommodation as one method
for achieving this. Although Draft Article 19 addresses issues of accessibility,
it is arguable that its focus on buildings, facilities and services may
not adequately capture the need for accessibility of proceedings such as
legal processes. It is thus appropriate to reference accessibility here,
particularly in light of the need for people subject to legal proceedings
to fully understand what is happening and be able to communicate their views
and wishes.
Draft Article 9(d) addresses the exercise of legal capacity with regard
to such areas as the ownership of property, conclusion of contracts and
control over finances. A number of States felt it important that such issues
be retained in this article, in order to counter the historical presumption
that people with disabilities are incapable of engaging in such exercises
of legal capacity. (New Zealand, Kenya, Thailand, Liechtenstein, Serbia
and Montenegro) This approach is in keeping with that taken in other Conventions
intended to correct historic discrimination and marginalization of specific
populations. (Cf. CEDAW, Article 13(b); CERD, Article 5(d))
People with Disabilities Australia
Article 9: Equal Recognition as a Person Before the Law
We strongly support the principles set out in draft Article 9, but suggest that they require refinement in a number of key respects.
The terminology of paragraph (a) ought to be strengthened to more closely reflect Article 16 of the International Covenant on Civil and Political Rights, from which it is derived. In its current form, it is of lesser scope than its parent article, and therefore has the potential to derogate from it. It is also suggested that the next paragraph in the article should incorporate the important principle of equality and equal protection before the law contained in Article 26 of the International Covenant on Civil and Political Rights, which is currently missing from the draft text. These paragraphs might be expressed as follows:
States Parties to this convention shall recognise that all persons with disability have the right to recognition everywhere as a person before the law.
States Parties to this convention shall recognise that people with disability are equal to all other persons before the law, and are entitled to the protection of the law on the basis of equality with others.
We also propose a stronger formulation of the right to recognition of legal capacity set out in paragraph (b). The word ‘accept' does not impose a sufficiently active obligation on States. Article (b) is also not drafted in a manner that interlocks well with paragraph (c), which concerns substitute decision-making arrangements. A key issue in this respect is the presumption of legal capacity, rather than incapacity. To address this concern the paragraph might be reformulated in terms similar to Article 15 of the Convention on the Elimination of All Forms of Discrimination Against Women, as follows:
States Parties to this convention shall recognise that all persons with disability have the right to be presumed to have full legal capacity to make decisions in all areas of life.
Paragraph (c) of Article 9 is controversial. Views have been expressed which are opposed to adult guardianship and substitute financial management arrangements. We acknowledge that in many parts of the world forms of adult guardianship (or trusteeship) have resulted in the denial of the legal and social personality of the individual with disability, and in the abuse and neglect of their human rights. However, the absence of decision-making and financial management arrangements for adults with cognitive disability has also resulted in extensive exploitation, abuse and neglect. This includes exploitation of the person's financial resources, sometimes even by family members; failure to perform beneficial medical and dental procedures on the basis that there is no-one to consent or advocate for them; and, failure to protect against harmful or unnecessarily restrictive interventions, for example, non-therapeutic sterilisation, polypharmacy, and aversive behaviour management procedures etc. We are therefore firmly of the view that appropriately safeguarded substitute decision-making and financial management arrangements are essential to protect and promote the rights of some people with disability.
We note that the Ad Hoc Committee's attention has been drawn to a proposal for ‘Supported Decision-Making' elaborated initially by the Canadian Association of Community Living. We applaud this proposal in two important respects. First, for advocating a conceptual and linguistic change from ‘adult guardianship' and ‘substitute decision-making' towards ‘supported decision-making.' This conceptual and linguistic change is far less damaging to the person with disability's dignity. Second, for affirming the principle that, wherever possible, supported decision-making should be undertaken on an informal basis by persons in a close supportive relationship with the person with cognitive disability. However, this proposal for supported decision-making does not displace the need for formal supported decision-making and financial management arrangements for some people in some circumstances.
Taking all of these considerations into account, the sub-paragraph might be reworded as follows:
(c) States Parties to this convention shall recognise that some persons with cognitive impairments, due to the nature of their impairment, or their social circumstances, will require formal assistance to exercise their legal capacity. State Parties shall take immediate and effective measures to ensure such assistance is rendered. The provision of such assistance shall be subject to rigorous safeguards of the rights of the person with disability, which shall include:
(i) This assistance will only be provided where informal supported decision-making facilitated by disinterested family, friends and or others with a close personal relationship to the person are insufficient in the circumstances;
(ii) Incapacity shall only be determined by a competent, independent, administrative or judicial body, operating subject to judicial review;
(iii) The paramount consideration in any substitute decision shall be the best interests of the person;
(iv) The person shall be protected from neglect, abuse and exploitation, and harmful or unnecessary medical, psychological, and other social interventions;
(v) The person shall be assisted to obtain necessary or beneficial medical or dental treatment, and health and other social services;
(vi) The assistance will be proportional to the degree of assistance required by the person concerned and tailored to their specific circumstances;
(vii) The assistance will be limited in duration to what is required in the specific circumstances, and shall be subject to regular review by a competent independent administrative or judicial body, operating subject to judicial review;
(viii) The freedom of decision and freedom of action of such persons should be restricted as little as possible;
(ix) The views of the person in relation to the decisions to be made shall as far as possible be ascertained and taken into consideration by the decision maker;
(x) The assistance shall not interfere with the legal capacity, rights and freedoms of the person;
(xi) The person shall have free access to legal aid in relation to any proceeding dealing with their legal capacity, including an appeal from such proceedings, and in relation to a decision to be taken pursuant to a finding of incapacity.
People with disability do not enjoy equality before the law in fact because legal procedures, rules, and practices are very disabling, especially for people with cognitive disability. This results in a situation, for example, where women with intellectual or psychiatric disability are subject to higher levels of violence than virtually any other members of the community, but these crimes are rarely reported, and where they are reported, they are rarely investigated, where they are investigated, this rarely leads to prosecution, and where prosecutions occur, conviction is rare. Paragraph (d) of Article 9 appears to require States Parties to make adjustments to legal procedure and rules of evidence to accommodate the participation needs of people with disability. If this is the intention of the paragraph, then it ought to be more clearly worded, for example:
States Parties to this convention shall recognise that the full and effective enjoyment by people with disability of the right to equality before the law shall require the modification, adjustment and flexible application of legal procedures, practices and rules, including rules of evidence. States Parties shall take immediate and effective measures to provide such accommodation, which shall include:
(i) Provision of information in plain-language and other formats accessible to people with disability;
(ii) Provision of personal assistance to understand legal procedures, practices and rules;
(iii) Recognising and facilitating access to alternative modes of communication, and communication technology, including Sign Language and Braille.
World Federation of the Deaf
Draft Article 9: Equal Recognition as a Person Before and Under the Law
4. Take appropriate and effective measures to eliminate physical, language and communication barriers, and to make all efforts to identify and utilize alternative means of communication and sign language interpretation, to support a person with a disability to make their decision, choices and wishes known.
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