What does access to justice require? - Overcoming barriers to invoke the United Nations Convention on the Rights of Persons with Disabilities

• Author: Kevin M. Cremin
• Pages: 280-322

FRONTIERS OF LAW IN CHINA

VOL. 11 JUNE 2016 NO. 2

DOI 10.3868/s050-005-016-0017-7

ARTICLE

WHAT DOES ACCESS TO JUSTICE REQUIRE? — OVERCOMING BARRIERS TO

INVOKE THE UNITED NATI ONS CONVENTION ON THE RIGHTS OF

PERSONS WITH DISABILITIES

Kevin M. Cremin*

Abstract Persons with disabilities have a right to effective access to justice under the

United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). This

article provides insights on the parameters of that right, including a close examination of

the history and text of Article 13, which directly addresses access to justice and other

relevant UNCRPD provisions. In addition to the UNCRPD, this article discusses

implementation guidance from the Committee on the Rights of Persons with Disabilities,

including its guidelines for State Party reports and jurisprudence. The initial reports by

eleven States Parties — Argentina, Azerbaijan, China, Costa Rica, Croatia, Dominican

Republic, Ecuador, Hungary, Mexico, Peru and Turkmenistan — are also considered.

The Committee’s feedback regarding implementation of Article 13 by these eleven

States parties is critiqued for being limited and inconsistent. This article then attempts to

clarify what effective access to justice actually requires. It does so by focusing on the

insights that can be drawn from implementation of Article 13 since the UNCRPD was

adopted as well as implementation guidance from the Conference of States Parties, the

International Disability Alliance, the World Network of Users and Survivors of

Psychiatry and the National Center for Access to Justice. This article concludes with

recommendations on how the Committee can improve its guidance on access to justice

to help ensure that equal rights will not be illusory for persons with disabilities.

Keywords access to justice, Convention on the Rights of Persons with Disabilities, right to

counsel, Committee on the Rights of Persons with Disabilities

INTRODUCTION .................................................................................................................... 281

I. ACCESS TO JUSTICE IN THE CONVENTION................................................................ 282

A. Article 13: Access to Justice............................................................................ 283

B. Other Articles That Are Relevant to Access to Justice ......................................288

II. IMPLEMENTATION OF ACCESS TO JUSTICE.............................................................. 290

* Kevin M. Cremin, JD, Yale Law School; Lecturer in Law at Columbia Law School; Director of

Litigation for Disability and Aging Rights at MFY Legal Services, Inc., New York, US. Contact:

kcremi@law.columbia.edu

The views expressed in this article are not necessarily the views of MFY Legal Services, Inc. The author

is grateful to Lisa Wang for her research assistance.

2016] WHAT DOES ACCESS TO JUSTICE REQUIRE? 281

A. The Committee’s Implementation Guidance for States Parties ........................291

1. The Committee’s Guidelines for State Party Reports ...................................291

2. The Committee’s Jurisprudence.................................................................. 292

B. State Party Reports and Committee Feedback on Access to Justice................. 295

1. Argentina ...................................................................................................296

2. Azerbaijan.................................................................................................. 297

3. China......................................................................................................... 299

4. Costa Rica..................................................................................................300

5. Croatia....................................................................................................... 302

6. Dominican Republic...................................................................................303

7. Ecuador .....................................................................................................305

8. Hungary..................................................................................................... 306

9. Mexico.......................................................................................................307

10. Peru .........................................................................................................310

11. Tu rkmenis tan ........................................................................................... 311

III. WHAT DOES EFFECTIVE ACCESS TO JUSTICE REQUIRE?....................................... 312

A. Insights from the UNCRPD and Its Implementation...................................... 313

B. Access to Justice Implementation Guidance from Other Sources ...................315

CONCLUSION........................................................................................................................ 319

INTRODUCTION

The purpose of the United Nations Convention on the Rights of Persons with

Disabilities (UNCRPD)1 “is to promote, protect and ensure the full and equal enjoyment

of all human rights and fundamental freedoms by all persons with disabilities, and to

promote respect for their inherent dignity.”2 However, without access to justice, persons

with disabilities are not able to realize these rights and freedoms. Without access to

justice, it is also very difficult for persons with disabilities to invoke the UNCRPD in

their own countries.

Article 13 of the UNCRPD directly addresses access to justice. As one prominent

commentator has written, equal rights will be illusory for persons with disabilities unless

they have effective access to justice on an equal basis with others:

The extent to which [Article 13] is honored by signatory nations will have a major

impact on the extent to which this entire Convention “matters” to persons with []

disabilities. It is still a very open question as to whether or not these rights will actually be

given life, or whether they will remain little more than “paper victories.”3

1 G. A. Res. 61/106, United Nations Convention on the Rights of Persons with Disabilitie s (Dec. 13,

2006) [hereinafter UNCRPD].

2 Id. Art. 1.

3 Michael L. Perlin, “Through the Wild Cathedral Evening”: Barriers, Attitudes, Participatory

Democracy, Professor tenBroek, and the Rights of Persons with Mental Disabilities, 13 Texas Journal on

Civil Liberties & Civil Right 413, 418–419 (2008).

282 FRONTIERS OF LAW IN CHINA [Vol. 11: 280

Although access to justice is critically important, Article 13 is brief and does not

provide many details about how states parties can ensure effective access to justice. The

Committee on the Rights of Persons with Disabilities is charged with providing

guidelines for state party reports. Unfortunately, the Committee’s guidance regarding

Article 13 is also very limited.

In their initial reports to the Committee, states parties have generally not provided

detailed information regarding their efforts to implement Article 13. States parties often

fail to provide even the limited information requested in the Committee’s guidelines.

Despite these deficiencies, the Committee’s feedback regarding implementation of Article

13 has also been limited and inconsistent. For example, the Committee has not yet given

clear guidance to states parties about one of the central questions regarding Article 13:

Does effective access to justice require a right to counsel?

This article attempts to provide insights on the parameters of the right that persons

with disabilities have effective access to justice on an equal basis with others. Part I

examines the concept of access to justice in the UNCRPD. It focuses first on Article 13.

Part I then discusses the other UNCRPD articles that provide the context for a more

complete understanding of Article 13. Part II examines implementation of access to

justice. It does so first by reviewing the guidance that the Committee offers states parties

about the steps they should take to achieve access to justice. Part II then discusses the

initial reports by eleven countries on their efforts to implement access to justice. The

eleven countries are Argentina, Azerbaijan, China, Costa Rica, Croatia, Dominican

Republic, Ecuador, Hungary, Mexico, Peru and Turkmenistan. Part II also discusses the

feedback that the Committee has offered regarding the state party reports. Part III

attempts to clarify what effective access to justice actually requires. This part first focuses

on the insights that can be drawn from states parties’ implementation of Article 13. It then

describes access to justice implementation guidance from other sources, including reports

from the Conference of States Parties to the Convention on the Rights of Persons with

Disabilities (Conference of States Parties) and implementation guidance offered by

prominent Non-Governmental Organizations (NGOs). The article concludes with

recommendations on how the Committee can improve the guidance and feedback that it

offers states parties to ensure that the rights set forth in the UNCRPD will be more than

“paper victories.”

I. ACCESS TO JUSTICE IN THE CONVENTION

The UNCRPD was adopted on December 13, 2006, during the sixty-first session of

the United Nations (UN) General Assembly.4 Pursuant to Article 42, the UNCRPD and

its Optional Protocol were opened for signature as of March 30, 2007.5 133 states have

4 See UNCRPD, available at http://www.un.org/disabilities/default.asp?navid=14&pid=150 (last visited

Nov. 30, 2015).

5 See fn. 1 Art. 42.