Welcome to ERA – Academy of European Law

Good morning to everyone in this place and to everyone who is watching us via internet. First of all I would you, the ERA Academy for organising this seminar and who has organised this seminar for us to speak to you and to have this time together to think about the Convention. Of course I have to thank you all and the Justice Committee of the European Union and the ECC who has signed the agreement on which behalf I am here.

If you want to talk about access to justice, we have to think what do we understand about justice? I would like to try to analysis this matter, not only talking about justice and the Courts but also talking about what we have to think about it. We cannot analyse this Article 13 without taking into account these other Articles. For example, accessibility, reasonable accommodation, capacity and equality before the law, access to public employment, and in fact the whole treaty which proclaims this paradigm shift with regard to disability. I will try to set out the fundamental principles that guide international regulations of every country outside the European Union regulations.

So if I asked to you what do we mean about justice, I’ll try to do.. you’ll probably answer that it is just the Courts and the bodies of the Courts. But I think we have to get a broad concept of justice so we can include inside justice public service not only the three states according to Montesquieu, not only the body Courts but also the Constitutional bodies that have to entrust or that are entrusted with of holding the rights of individuals. For example, departments of public prosecution and public ombudsmen. We have also to take into account the administrative structure of the staff that are working with the administration of justice. In this, take into account also the police who is really really embedded in Article 13. Of course, we have to take into account also the public officials or functionaries, who the State has given responsibility by for preventive legal security. That is notarial institution and public register systems.

We all have the paper that I have wrote so I am not going to read it: I am going to try understand or explain or speak to you about what I think about access to justice. If anyone wanted, I can send it by email in another.. in Word, so it is easier for reading for the person who has viewing disability. I am not going to go on about the importance of general principles of the Convention because yesterday we saw about it. We spoke about it and it was really a good end to the day yesterday. I wanted to tell you that since the Convention got into force that from the third of May, four years ago, that this Convention has to be applied or has to be taken into account in all countries. In two ways, the judicial agents have to read the law under the principles of the Convention. And that has to be happened since the third of May 2008. We don’t need to change the law in order to account in all our countries. So notaries, lawyers, judges, prosecutors and all the persons who lead with the legal terms have to take into account the Convention. And also it applies to States to change the legislation which is not in accord with the Convention. So we have to take this and we have this in our minds in order to understand what change has been done by the convention. The purpose of the Convention, which was also said yesterday, to promote, to 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. We were talking to yesterday about the concept of disability and there was a long debate about do we need or do we not need the long-term of physical, mental, intellectual or sensory impairments. But I want you to take into account that we have to read every single law, every single act with the preamble beside us. Everything has to be read like that and if you go to the preamble, the preamble says that disability is an evolving concept. And we have to know when one has the same ability, disability at the same time so the capacity of awareness we have whether we have a kind of disability or not is different along all our life.

About the European general principles, I am not going on through these and all these things because of time. But I want you to take into account one of the most important principles I have ever seen within the civil code, within the civil law. Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons. To make one’s own choices is the most important principle to me and is the cornerstone of this convention. We also have to take into account, that discrimination is prohibited on the basis of disability and of course the reasonable accommodation. And we talked about this yesterday, talking about employment.

One of the fundamental concepts which hasn’t been, I think sorry for my mistake, that hasn’t been taken into account these days – Article 18, awareness-raising. The Convention refers to this concept and it obliges state party to adopt immediate, effective and appropriateness to raise awareness throughout society at family level. I may, I have to take special consideration about the family level because it is very important that all the family related to a person with disabilities really believes in letting him make his own decision. You know what I mean, because sometimes its hard for families with a person with disabilities to realise that this is a very real choice and they have to help and they have to support their families to make his own decision including the right to make his or her own mistakes. It is very important to combat against stereotypes and of course that’s the second part of Article 8 and ye can all read it. And to promote the capabilities and contributions of persons with disabilities. So the States have to do all of these since the Convention on that third of May 2008.

So taking.. getting on to the matter of access to justice, first of all at first sight, you will only read Article 13. Article 13 says that States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, 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. Paragraph 2 states in order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff. This brief article of just two paragraphs represents a wake-up call for domestic legal systems, as it establishes access to justice by people with disabilities. It is these set of measures, services and supports allow people with disabilities to really have access to justice on an equal basis.

We can distinguish for the first time with the first paragraph in my hand. We can see a physical perspective. We all know what a physical perspective to get out the barriers that can go, that can.. don’t let people with a disability go into Court. But we cannot only think about the barriers in physically. We have to take into account all the treaty. That’s why we have ti think about communication, information and that’s why those things that go around access to justice. We also have to think about a substantive perspective. Participation of people with disability in the Court. Participation not only as the respondent or the defendant, but also as the lawyer, as jury, as witness, as judge, as public prosecutor. So much more broad concept of access to justice if you visualise it with all the convention around. We need to guarantee that people with disability can fully access their rights so it depends on the disability, they will need the reasonable accommodation. If it is an intellectual disability, they will need an easy language. If it is a disability, for example somebody who can’t hear, they will need an interpreter. If it is a viewing disability, then they will need audio devices. So this is really related with all the other Articles that have been seen during these days. It is very important to take into account that this access of justice goes along all these fields of law. It is not only civil law but all the kinds, all the streams of the law. For example, employment, industrial, public authority, corporate legislations. (Thank you) The second paragraph, it really represents the obligation of the state to take into account Article 8 in justice process. So it applies (thank you very much), so it goes further in all legal agents must be aware, to knowledge know the different needs that people with disabilities have. Public authorities must promote justice administration personnel, including all the personnel that are there. So therefore, I think these seminars, these type of seminars are the real life of Article 8 and Article 13 because we the ones who have been training in order to know what the convention says. If you talk with people with intellectual disability, and you may let me tell you that Article 13 and Article 12 that go together, and we talk about it later on, but I am emphasising on people with intellectual or mental or psychosocial disabilities because they are the ones who have always been taking away in order to exercise their own rights. Persons with physical disabilities, they have had no one ever doubt about their capacity to act. So that’s why I am emphasising myself in intellectual or mental disability. And if you to people or with organisations who work with people with disabilities, and in this case the two ones I have said, there are two areas that very concern. Legal incapacitation proceeds to deprive many persons with intellectual disabilities of access to justice. And the second one is the legal process is often very difficult to understand because of the matter so they don’t really know or they don’t really get to know what is going on and they don’t have any advice about it because there are not many legal agents that are specialised in incapacity and disability.

I’m going to talk first about employment in the justice administration. So if I am not mistaken, this is related to Article 13 and Article 27. (Thank you) We made in Spain a Æquitas Foundation, which I will give in brief so you know where, why I am here. Somebody asked me, what do the notaries have to do with the disability and I asked them that notaries have a lot to do with this because we are the ones normally act alongside legal capacity so that people can exercise their rights in front of us. In 1999 the Spanish council of notaries raised up a foundation called Æquitas Foundation, who’s aim is to one stop.. one step to improve legislation for persons in risk of scrutiny and for other, in the other hand to train not only legal agents but also to speak with NGOs related to this. So it is a big perimeters, and the Æquitas Foundation was in charge by the Justice Minister of Spain to make a brief about Article 13. And we decided that this brief was made by notaries, judges, NGO’s, public prosecutors so we seen all the sides along the public agents or the legal agents who are involved in this matter. And about the employment, we get to the conclusion, three conclusions which are very briefly conclusions. First of all it is very important to introduce a public employment model. Yesterday we were talking about employment and employers on the private side, the State has to promote the employment of people with disabilities in the private side but in the public side, the State has the obligation to make the reasonable accommodation in order to employ people with disabilities in the public sector. So this global public employment model has to be taken into account with the four things yesterday told us, that the speakers told us. Training to get in, training to access, training in the workplace and training to leave. It is a total model of employment model. Of course it is necessary to give a precise definition about reasonable accommodation. We were talking about this yesterday and we think it would be a good idea to create of a specialist Advisory Body with at least consultative powers and to, in order to involve this party with the public statement so that they can get really, so that they can get into effect the employment of people with disabilities in the public employment.

I’m going to talk about physical and intellectual disability accessibility to justice. Therefore I will talk about design for all but also Article 9, but also Article 20 and Article 21 of ability of opinion and freedom of expression. Universal design, we all know what is universal design is the design of products, environments, programmes and services which can be used by all people. Universal design will not exclude technical aids for specific groups of people with disability if it is required. It’s not only, it’s not simply a question of removing physical barriers, it is also to take into account communication and to take into account freedom of expression. Freedom of expression Article 21, you may think what does Article 21 have to do with 13. But it has to do. If you have the freedom to seek, to receive and to impart information and also to express yourself and in the Court and in all these services, public services, you need to have the opportunity to express yourself. The reasonable accommodation what is needed in behalf, on behalf of the different type of disability that you have. Communication has to be understood under terms of Article 2. Communication includes languages, display of text, Braille, tactile communication and all those that have been taken into account in Article 2. So for propose, we propose taking into account 9, 20, 21 and 22 that logically buildings have to be constructed on the basis of the design. That does not mean only the access, it means the whole building. And of course visible guidance and signage also has to be taken into account because we cannot only see accessibility in the way of taking away the barriers that we have.

Legal access and access to information. We have to work about the access to information in terms of Article 13 and we have taken three, not more, some considers that we have taken to the government. It is needed a general, systematic and appropriate approach to the presence at all Court Bodies of Sworn Interpreters and also you have to take into account the system of Braille because it is very important, the complexity and technical nature of the Court proceedings that are available in all Courts, legal guidance services. Set up to advise people with disability but not only people with disability, all people which have a lack with the administration of justice, but these persons have to be trained about the needs of persons with disability. But also, in this case, we have to, I would like to point it out that in Spain there is an association called Faeabs that take into account people with intellectual disability. That has made a stream in order to advise people with disability in the Court and they have taken all the, not only the lawyers but all those different agents who can advise this people with disability. This is a private initiative, but this private initiative can be taken into account for all the other countries. Also all the efforts have to be made if a person with disability goes into Court, the climate created should be the one of the Court in order not to make him or her feel uncomfortable or feel that they don’t understand what is going on. I don’t know if you have heard about the Brasilia rule regulation. They have been made by the South American countries including Spain and one of the things they have put on to the table is that it is very important to take alternatives ways of resolving problems into account. For example to employ arbitration and mediation systems and also as a formula for any legal conflicts in which any person and especially person with disability may be involved. If a person with disability requires so, she should be permitted to draw on the support of the relatives or companions in their communications with the Courts. So the conclusion is that no public functionary, no public authority, no agent related with justice can invoke saying unfamiliarity or lack of knowledge of the Convention or other resources of the Convention of the rights of disability because it is an obligation for everyone.

I want to talk about specialisation of the Courts and all parties acting in the Courts. Article 13 talks about training. It is more important that all the legal agents have training, but the training must not be only at the beginning but all during his whole career. At the entrance examination in the university, when the people are studying in order to be lawyers, in order to be legal agents, there must be a subject relating to the Convention and also also the matters relating to the law have to be studied with the Convention above. It is very, until we have the change of the law, we are all trying to change our different laws in the different states. We have do something in order to get the convention applied today because as I told you in the beginning, we must read all our legal system under the convention. That’s why it is very important that legal agents make a general manual of good practise under this Convention because the point I have to tell you is that the General State Attorney’s Office in Spain had published a general manual about good practise in the proceeds about the termination or capacity of persons with disability. So at the moment we have to make this effort in order to take the Convention into account. It is available on the Internet the manual and you have the reference in the papers they have given you which is written on it. It is very important, two fields are very important in justice. Criminal field and prison. Many people with disability when they get into Court, in the criminal field, the judges doesn’t realise and overlook the existence of a disability. But it is particularly necessary to train in this field. In prison, there must also be training related to this. There is a good example in Spain about who is working in Castilla y Leon in Valladolid and they are working with people with disability in prison and they are working with an ONG. I can tell you if you want to know about it later on, how to get information about it.

The fundamental issue relating to Article 13 is Article 12 because how can I have access to justice if I don’t have the right to exercise my rights. If they take away from me the right to fight, the right to enter contracts, the right to marry, the right to make my last will, the right to decide which type of medical aids I need, I don’t really have the access to justice. So what we have is simple and important, not only to change the proceeds that go to legal capacity, I am going to talk about this at the moment. But also important that all these Convention, it goes like.. it is spread all along the law States.

We have to, if we go sixty years ago, we have to admit that considerable progress has been made in such an area as support for people with disability, education, employment, accessibility. We have to do more, but there has been a lack of progress in terms of legal capacity for people with disability. That’s what I think and we need the social concept of disability and it needs to be transformed into a legal concept, in different ways of exercising capacity with the required supports and with this the United Nations has given the wake-up call. I know the next speaker is going to talk about Article 12 and I don’t want to read Article 12 and go on of these because I know he is going to talk about it. I want to make a.. I want to think with you. Article 12 says or recognises the right for people with disability to act or exercise the right their rights. It recognises and is in paragraph three two it obliges the state parties to take appropriate measures to provide access by persons with disabilities to the support they may required in order for them to exercise their rights. And in paragraph four it obliges the State to provide person with disability appropriate and effective safeguards in exercising their legal capacity. Not as a limitation but to prevent abuse and ensuring that in all safeguards or reasonable accommodation respected for the rights of people with disability, respect their autonomy, to respect their right from conflict of interest and undue influence and ensuring that all safeguards are proportional temporarily and might be review of the authority or judicial body. So Article 12 shows the change from the substitution model to the support decision making. We have talked about this since 2008 and we need to make some change and to change the real life into this Article 12.

We need to change the guarding system because they are based, all of them, on a medial system or on a medial basis. In Spain, the recent order to be legally incapacitated is to have persistent physical or mental illness or impairment preventing the person from autonomy. It is also based on medical rehabilitation. We have to change, and we have to improve systems that go to the modification of capacity, the establishment supporting the decision making, but we have to take into account the that within disability, there is diversity and that is being said in Article 12 when disability was a fine. There is a diversity in disability so the measures that have to be taken must be different ways of allowing to make his own suit in order to be able to exercise his rights. I don’t know if I have been clear enough with these words but we have to take into account that there are many different ways of exercising rights and it is not the same. A child who has born with down syndrome, who has got an education, who has got an employment. He needs different support than an old who has an Alzheimer or a person who is in a coma, is to talk about support decision making in a situation like a coma is a.. we can talk about intensive support decision making but we have to take into account that all perspectives have to be protected by the law based on autonomy and based on the sides of people with disability. We need to establish more flexible temporary forms based on the autonomy of the individual, supervised by an authority or a judicial body in accordance with the best interests of the disabled person and this leads me to talk about voluntary jurisdiction. We need to make a system, we need to rise up a way or exercising the capacity with (recording audio interruption 34:04 – 34:09) Otherwise people with disability will get out of society. We need to base the system on autonomy. We need to base the system on the best interests and the sides of people with disability but we have to make it with a safeguard system. Otherwise no one will want to sign a contract with a person with a disability. So at the end they will be get rid of from society. I know this is going to, we have to establish confidence and provide legal guarantees. We have to support the support decision making for old people, for old people with disability. I know some persons think that the cases that I talk about, about Alzheimer or elderly people or people with coma are not defined as people with disability so they won’t be over their support decision makers. But I think to be wise enough in order to give everyone the availability to make his own suits. If the system gives insecurity, the society will accept it. That’s why it’s been so hard to make a support model in our lives and in our States. People are, Article 12 talks about putting into balance autonomy and security. And if it much more easier for me, it is much more easier for me to balance myself to security. But it’s not about me, it’s about human rights and about what people want to do. So we have to be able to make the balance between autonomy and security. There has been some regional paper and I would like to cast with you but at the end I will be finished. But I want to explain to you some cases that I have been leaving in my office. For example there was lots of people, a person with a schizophrenia whose father died, and normally you have to take into account with a person with disability in Spain that they normally have entered the incapacity system because they have to do an act in a notary and they are not, sorry, capable enough, under comas for people who cannot see me, to sign the inheritance. So the way wee are protecting people with disability is with a procedural judicial procedure that cost him, the civil debt, for all his life. Only for one act, that’s the way the law acts in every single country in Europe and in South America. So I had a person with schizophrenia and his father said in his last will, had made a very good for him. He made a very good suit. Because it possible under the Spanish law that parents or anyone who gives something by free to one another, it stays, which kind of administration, the ones for this kind of assets. So the parents said that this asset that the person had received, had to be administrated by him with the support of his brothers. So he was capable enough and he had the capacity enough to comprehend, to understand what was going on. He had the legal advice to understand it and he didn’t need to go into Court in order to have his incapacitation. I have had several times people with disability making his own last will. It is possible, also if you are under incapacitation because the Spanish model allows that with people with some supporters in the act. Recent laws have been changed over the past century. We know about the Betreuung here in Germany, we know about the mandati di protezione in Italy , we know about the power of attorney about my future lack of capacity. This ways are ways of basic autonomy in order to make our own suits without incapacitation. We have also in Spain a very curious figure called property, the property of a person with disability. And recently in Spain, and keeping with the people with the watch (thank you).. sorry, as you can read the paper and it’s easier for me to talk with you. Sorry for the language, I will try to explain myself as good as I can. Sorry as I was saying, recently in Spain you know some of Spain has it’s civil code and there are some regions of Spain with their own civil code. This region is Catalonia where I live, I live in Barcelona and recently there were, they have changed the civil code in family matter, in capacity and in guardianship. They have in the preamble of this new law, they talk about the Convention, they talk about that it s not necessary to go to a procedural, it is not necessary to go to a judge, that the measures can be temporarily but at the end you go to the regulation and you see they have kept the system of guardianship and also that the assistance system has been based on a medical basis. So for conclusion because I have one minute, we need first of all training. Second, we have to get into practise the Convention without waiting for a law change. That’s an obligation for all of us today because if we practise the Convention today, we will get the change in the law in the future. It’s the only way because that will be demanded by the society. And third of all, and last of all, access to justice has to be involved or has to be released or be seen with the whole treaty in our hand. All rights of person with disability, all the law has to be read looking at the Convention and making it alive in our real lives.

Thank you very much.