4(B)(v). Access to justice

Even before making a claim, the client has to find someone who can help. “Access to justice” means a person’s right to a just and timely remedy for violations of their rights. It applies to all aspects of the justice system, whether that is a criminal case, a family case or an administrative case. It includes all judicial proceedings such as investigations, tribunals as well as non-judicial mechanisms such as mediation and alternative dispute resolution procedures. The justice system is the route through which all other rights violations are addressed. If a person cannot access justice, they cannot seek redress for the injustices they have suffered, and injustices will continue for other people too.

Article 13 of the CRPD establishes an obligation on governments to “ensure effective access to justice for persons with disabilities on an equal basis with others”. This requires adjustments in any justice process “in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages”. People with mental disabilities, like everyone else, interact with the justice system in various ways. They may be victims, witnesses, defendants, alleged offenders, convicted offenders, or have a stake in civil and administrative proceedings. This includes guardianship proceedings and legal proceedings brought to challenge a client’s institutionalisation.

Everyone faces challenges in accessing justice systems; legal language or jargon is often confusing and dense and legal procedures are frequently long and complex. Yet many legal systems continue to expect people with disabilities to participate without adjusting the procedures to accommodate their needs.^[25]

Access to justice may be especially difficult for a person in an institution because they are likely to face a variety of information barriers. These barriers might include simply not knowing who can help them or how to contact someone to help them. Practical barriers can include lack of access to a telephone or the internet, or financial barriers where legal aid is not made available.

If a person is under guardianship, accessing justice systems may be virtually impossible without the agreement of the guardian. Guardianship systems frequently remove the right for people with disabilities to sign a power of attorney and/or instruct a lawyer, meaning that only guardians can initiate proceedings on their behalf. Where the guardian does not agree, the barrier to accessing justice can seem insurmountable. 

How can lawyers deal with these barriers? Article 13 of the ECHR sets out that everyone should have access to domestic remedies where they have arguably suffered a substantive human rights violation. The remedy available must be “effective” in law and practice.^[26] The case of Stanev established that, even where there was a procedure available to Mr Stanev to restore his legal capacity, the remedy was not effective where it did not provide for compensation.^[27]

At the national level, lawyers should look for constitutional guarantees of access to justice or the direct applicability of the international provisions outlined above. The ECtHR and UN treaty bodies were established to ensure that there are (internationally, at least) remedies for violations of human rights. Exhaustion of domestic remedies is often a barrier to accessing these international remedies but is less so in cases of violations of Article 13 of the ECHR where there is no effective remedy nationally. “Effective” includes a time guarantee: the remedy should not take too long.^[28] In any event, the remedy must have sufficient enforcement powers,^[29] and though it need not be judicial, sometimes the seriousness of the violation requires a judicial remedy.^[30]

CRPD Committee individual complaint

Accessing justice at the national level may prove fruitless, as there may be few proceedings available. In cases where there is no effective and available domestic remedy, bringing an individual complaint directly to the CRPD Committee under the Optional Protocol to the CRPD is another possible alternative for securing justice.^[31]

Articles 6, 7 and 8 of the Optional Protocol also set out an inquiry procedure.^[32] The CRPD Committee can initiate an inquiry if there are “grave or systematic violations” of the CRPD in a particular country. Lawyers can help to initiate inquiries where the institutionalisation of their client reflects a wider discriminatory system. Such requests require arguments backed by statistics and data, making a forensic link between widespread violations of Articles 5, 12, 13 and 19 and the acts of government and local municipalities.

European Social Charter

Another route to accessing justice is the underused procedure under the European Social Charter. The right to live in the community engages the right of people with disabilities to social integration under Article 15 of the Council of Europe’s 1996 Revised European Social Charter. The thrust of Article 15 is the promotion of independence and participation in the community for people with disabilities. Article 15(3) includes the obligation to provide access to transport and housing in order to promote full social integration. In addition, the Revised Charter includes a cross-cutting prohibition on discrimination in Article E.

There are several limitations on the use of this mechanism related to whether the country has submitted itself to the collective complaints mechanism, which version of the ESC it has ratified, and which Articles it has accepted. Nonetheless, litigation under the ESC can still secure some of the rights required for full inclusion. This can overcome numerous barriers related to litigating on behalf of individual clients such as the procedural barriers for people deprived of legal capacity and issues of pressure and coercion by guardians and staff of institutions. Further, there is no requirement to exhaust domestic remedies and no time limit for lodging complaints.