JUSTICE FOR ALL
under the Committee’s interpretation of Art
12, an adjudication of the criminal charges
should proceed with the defence lawyer
operating on what he or she believes is the
best interpretation of the individual’s will and
preference.
In 2020, the UN International Principles and
Guidelines on Access to Justice for Persons
with Disabilities were adopted.52 They recommend that States guarantee that persons
with disabilities enjoy legal capacity on an
equal basis with others, and where necessary,
provide the support and accommodations necessary to exercise legal capacity and guarantee
access to justice (Principle 1). The guidelines
contained in the principles set out a number
of specific provisions to this end:
• ensure that individuals with disabilities
are universally recognized as having legal
capacity and the right to exercise it, with full
participation in court proceedings;
• eliminate restrictions based on constructs
like "cognitive incapacity" or "mental incapacity";
• amend or repeal laws and policies limiting
legal capacity, including those allowing for
substituted decision-making, "sound mind"
requirements, or doctrines like "unfitness to
stand trial" and "incapacity to plead";
• eliminate medical professionals' sole authority in determining capacity;
• remove barriers preventing individuals with
disabilities from initiating legal claims;
• establish enforceable rights for individualised
procedural accommodations, including
support in all legal proceedings;
• provide intermediaries for effective communication between individuals with disabilities
and legal entities; and
• grant the right to appeal or seek restoration
of legal capacity with access to legal assistance for those previously declared without
capacity.
Moreover, according to Principle 5, persons
with disabilities are entitled to all substantive
and procedural safeguards recognized in
international law, whether in criminal, civil
or administrative procedures, on an equal
basis with others, and States must provide
the necessary accommodations to guarantee
due process. They include the presumption
of innocence and the right to remain silent
and are afforded to all persons with disabilities
on an equal basis with others. Procedural
accommodations to ensure the equal participation of the person with disabilities, when
needed, must be available, including suspects
and accused persons who require assistance
to participate effectively in investigations
and judicial proceedings. Accordingly, States
ensure equal treatment, protection, and access
to justice for suspects and accused persons
with disabilities, including the presumption of
innocence, accessible information, non-discrimination, procedural accommodations, legal
safeguards, choice in defence and healthcare
support regardless of legal outcomes.
In September 2022, the Office of the High
Commissioner for Human Rights (OHCHR)
and the World Health Organization (WHO)
issued a Call for inputs on a “Draft guidance
on Mental Health, Human Rights, and Legislation”. The draft guidelines report that the
UNCRPD’s impact on criminal responsibility
remains under-examined and underlines the
need for reform of criminal justice systems.
Persons with disabilities require support
and accommodation to ensure their equal
participation and protection of their rights
in legal proceedings. There is a concern that
ordering security measures for individuals
with mental health conditions who are
found not criminally responsible contradicts
the principle of no punishment without guilt,
potentially resulting in indefinite confinement.
Some suggest replacing such measures with
general criminal defences and exploring
alternative approaches like restorative justice and non-custodial measures to address
criminal offences committed by individuals
with disabilities and better serve both victims
and society.
However, the draft guidelines remain cautious,
recognizing the lack of consensus on how to
legislate systems of criminal responsibility attribution in a way that fully respects the rights of
individuals with mental health conditions and
psychosocial disabilities.
27
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