Accessible and sustainable criminal justice: the right of an incapacited accused person to be present at a court hearing

• MRU CRIS: knygos tekstas

ENProtecting and empowering people with disabilities means ensuring their full enjoyment of civil and political rights, as well as economic, social and cultural rights. Empowering people with disabilities means enabling them to reach their full potential as equal and active members of society. However, all over the world, people with disabilities face a range of challenges every day, including an inability to access justice. The right of persons with disabilities to access justice and its implementation should be seen as an important factor in the sustainable development of society. As stated in Resolution of the United Nations General Assembly 70/1 of September 25, 2015, “Transforming Our World: The 2030 Agenda for Sustainable Development,” for sustainable development it is necessary promote and enforce non-discriminatory laws and policies (Resolution 70/1 2015, 16b). One of the goals of UN sustainable development is to promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels (Resolution 70/1 2015, 16). This directly determines the need to improve access to justice for one of the most vulnerable groups in society – persons with disabilities. It is accepted that access to justice is not only integral to achieving the Sustainable Development Goals (SDGs) and inclusive growth, but is also crucial to implementing many of the other SDGs (Leveraging the SDGs for Inclusive Growth 2016). Thus, access to criminal justice is also one of the most important factors in building a sustainable society. Criminal justice and its accessibility are particularly important for people with mental disabilities who are suspected / accused of a criminal offence. They have a reasonable expectation that they will be able to understand the essence of the allegations against them and participate effectively in the criminal proceedings.However, criminal justice is often made difficult for people with mental disabilities when they are denied the right to participate in the process and/or when they are unable to participate. The very concept of “persons with disabilities,” according to the United Nations Convention on the Rights of Persons with Disabilities (hereinafter – the CRPD) of 13 December 2006, is defined broadly: “those who have long-term physical, mental, 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” (Article 1) (CRPD 2006). Under the Convention, persons with disabilities are not social or treatment “objects,” but subjects with rights, capable of exercising those rights and making decisions freely. Persons with disabilities are also entitled, on an equal basis with others, to enjoy and exercise all the rights guaranteed by the European Convention on Human Rights (hereinafter – ECHR, Convention) (ECHR 1950), the European Social Charter (European Social Charter 1961) and in other international and European Union (hereinafter – EU) human rights standards. ghts standards. According to Article 13, the CPRD recognizes that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life (CRPD, 2006). Persons with disabilities have the right to participate in court proceedings as direct or indirect participants and witnesses. In this respect, the very right to apply to court encompasses much more: “(…) the concept of access to justice encompasses not only procedural access (i.e. effectively engaging in and using the established legal system), but also substantive access (i.e. equitable and beneficial judicial outcomes) and promotional access (i.e. promotion of citizens’ belonging and empowerment)” (Beqiraj et al. 2017).With regard to criminal proceedings and the right to a fair trial of persons suspected/accused of having committed a criminal offence, it is noted that the CRPD moves from the question of whether a person is able to understand the process to the question of what support such persons need to receive in the process in order to be able to become an active participant in the proceedings. In this respect, the idea is to move away from “tailor-made” types of criminal proceedings and to ensure that the general criminal process is responsive to the needs of persons with disabilities and is accessible to them (Gooding and O’Mahony 2016). According to some scientists, “unfitness to stand trial laws seek to remove a person from the criminal justice system where there is a risk that the person will not receive a fair trial. The CRPD Committee have not condemned this objective explicitly, although its reiteration of the aims of Article 9 to make mainstream legal processes accessible rather than creating “special” alternative measures appears to imply as such. Principally, the Committee has expressed its concern with the consequential loss of liberty flowing from a determination of unfitness to stand trial” (Gooding and O’Mahony 2016). As a general rule, additional procedural safeguards are put in place in general criminal proceedings concerning an accused person with a mental disability. Such procedural safeguards may include the involvement of a defence counsel, legal representatives, family members or close relatives, special procedures for interviews and other procedural steps, etc. However, in some European countries, the “legal fate” of an alleged incapacitated person is shaped by introducing a specific type of criminal procedure, viz., a Coercive Medical Measures Procedure. [Extract, p. 309-310]