On The Protection Of Human Rights Of Persons With Disabilities In Judicial Field

The protection of the rights of people with disabilities is one of the important elements of the cause of human rights in socialism with Chinese characteristics.The protection of the rights of persons with disabilities in judicial field is an important aspect of the realization of judicial justice for persons with disabilities.In practice,there are problems in the protection of the rights of persons with disabilities in judicial field,such as the lack of equal recognition of persons with disabilities,inadequate accessibility,insufficient support for reasonable accommodation and inadequate procedural accommodation.In view of this,this paper adopts empirical research and normative analysis to examine the protection of the rights of persons with disabilities in judicial filed from the perspective of human rights,and to review the gap between China’s legislation and practice and international standards on the protection of the rights of persons with disabilities in judicial filed,so as to provide guidance for improving the legislation on the protection of the rights of persons with disabilities in judicial filed in China and improving the practice of the protection of the rights of persons with disabilities in judicial filed.Apart from introduction and conclusion,this thesis is divided into five chapters and is approximately 210,000 words.The first chapter is about the international norms for the protection of the rights of persons with disabilities in judicial field.The international human rights protection system,with Declaration of the Rights of man and of the Citizen,International Covenant of Civil and Political Rights and International Covenant on Economic,Social and Cultural Rights as its core,has laid the foundation for the judicial protection of human rights at international level.The birth of Convention on the Rights of Persons with Disabilities marked the initial formation of the human rights protection system for persons with disabilities,in which “equal recognition before the law” and “access to justice” have gradually brought the rights of persons with disabilities in judicial field into international perspective.The International Principles and Guidelines on the Rights to Justice for Persons with Disabilities(hereinafter referred to as the Principles and Guidelines)were developed in response to the general comments on the convention on the Rights of Persons with Disabilities,the concluding observations of the state’s parties on their reports,and the increasingly detailed description of the rights of persons with disabilities in judicial system by the United Nations Human Rights Committee.The Principles and Guidelines ensure that all persons with disabilities can enjoy the rights of equal protection by providing necessary substantive,procedural,age and gender appropriate accommodations and support.The individual rights and states obligations contained in the Principles and Guidelines apply to all legal proceeding(civil,criminal and administrative)and throughout the process of the applicable procedural,including investigation,arrest and other preliminary stages as well as post-decisional stages and the provisions of remedies.As can be seen from the Convention on the Rights of Persons with Disabilities,the unanimous observations on the Convention on the Rights of Persons with Disabilities,and the concluding observations on the state party’s reports on implementation,as well as the Principles and Guidelines,the international guidelines on the protection of the rights of persons with disabilities in judicial field cover four basic elements: equal recognition before the law,accessibility,reasonable accommodation and procedural accommodation.Equal recognition before the law is a prerequisite for persons with disabilities to become subjects of rights,and the extent to which accessibility,reasonable accommodation and procedural accommodation are provided affects whether persons with disabilities can effectively participate and play a substantive role.The theoretical origins of the special support given to persons with disabilities in judicial practices lie in their status as human beings,equality and non-discrimination,and moral legitimacy.The protections of the rights of persons with disabilities in judicial field is necessary both for the equal and effective participation of persons with disabilities and for the fulfillment of the state’s international obligations.The second chapter examines legislation to safeguard the rights of person with disabilities in China’s judicial field.The translation of international law rules and concepts into domestic law takes two main paths: firstly,hard law,which implements international concepts into various laws and secondly,soft law,which is regulated on a moral level through various normative documents that are not legally binding.Soft law and hard law complement each other and are jointly applicable to the protection of the rights of people with disabilities in judicial field.The international rules on equal recognition before the law,accessibility,reasonable accommodation and procedural accommodation for persons with disabilities in the judicial system are enshrined in the Constitution,basic law and administrative regulations.The Constitution provides for equality before law,the Code of Criminal Procedure ensures free access to sign language interpreters for persons with hearing impairments in the field of criminal justice,and the Legal Aid Regulations ensure that persons with disabilities have the opportunity to achieve equality at the level of “weaponry”.In addition,a number of laws,judicial interpretations and normative documents also explicitly facilitate the participation of people with disabilities in judicial processing.The protection of the rights of persons with disabilities in the domestic and international judicial fields share the same values – to achieve equal participation of persons with disabilities through various measures and to realize their effective participation through specific means,such as the provision of an accessible environment and accommodational measures.However,there are still certain gaps between the domestic and international legal system for the protection of the rights of persons with disabilities in judicial field,such as the existence of alternative decision making in the civil filed,the inconsistent standards of the procedure for the release of compulsory medical treatment in the criminal field,the lack of enforceable legislation on accessibility,and the lack of clear provisions on reasonable accommodation and procedural accommodation.The third chapter provides a realistic examination of the practice of safeguarding the rights of people with disabilities in judicial field in China.The examination of the practice of safeguarding the rights of people with disabilities in the judicial filed is carried out in two main ways: macroscopic and microscopic.On the macro level,this thesis examines the overall cases involving persons with disabilities in China Judicial Document Website,so as to paint a general picture of the access to justice for persons with disabilities.A search of China Judicial Document Website for cases involving persons with disabilities from 2013 to 2018 reveals a wave-like upward trend in cases involving persons with disabilities.In terms of the types of cases,civil cases accounted for the largest proportion,followed by criminal cases,and administrative cases the least.In terms of types of impairment,the largest number of cases involved physical impairment,followed by mental impairment and intellectual impairment,with hearing impairment and speech impairment also being significant.At the micro level,the current state of recognition of equality before the law,the realities of court accessibility,the realities of the application of reasonable accommodation and the empirical study of procedural accommodation can be used as starting points to examine the reality of the situation of people with disabilities in judicial field.The basic principle of equal recognition before the law has already been established at the legal system.In practice,discrimination against people with disabilities still exists.In the civil sphere,persons with mental retardation are subject to substitute decision-making rather than supported decision-making,and their residual capacities are not utilized.In the criminal sphere,there are far more compulsory medical treatment declarations than compulsory medical treatment discharges.Once a compulsory medical treatment has been declared,its release is a long way off.As can be seen from the foregoing,the greatest proportion of physical impaired persons are involved in judicial proceedings,as are hearing impaired persons and speech impaired persons.The former has a high reliance on the accessibility of the physical environment,while the latter has a greater need for information accessibility.The physical of the court is imperfect,and information exchange continues to face either explicit or implicit barriers.The practical application of reasonable accommodation is mainly developed from two directions:the provision of reasonable accommodation at the litigation stage and the provision of reasonable accommodation at the enforcement stage.The former has shown a gradual increase in the proportion of applications,and has gradually transformed from a purely material reasonable accommodation to a combination of material and non-material reasonable accommodation.The latter is not ideal for the right to survival,access to information,labor rights and cultural rights of persons serving sentence with disabilities.This is partly due to lack of awareness of the need for reasonable accommodations among prisoner with disabilities and partly due to the traditional culture of imposing severe punishment on those who break the law.The empirical analysis of procedural accommodation can be broadly categorized into: accommodations to facilitate multi-role participation of persons with disabilities,accommodations to facilitate effective communication,accommodations to achieve legal aid and so on.There is limited accommodation for multi-role participation of persons with disabilities in judicial proceeding.Persons with disabilities usually appear in court as plaintiffs or defendants,less often as witnesses,and largely absent from the legal professional community as judges,lawyers and so on.Facilitation of effective communication is more common in judicial field,however,there is a lack of adjudicative standards to determine whether communication is effective.Legal aid for people with disabilities is subject to varying standards,limited staff dedicated to legal aid for people with disabilities,and inadequate mechanisms for collaboration between relevant department.The fourth chapter analyses the causes of the problems in the protection of the rights of people with disabilities in judicial field.The problems of safeguarding the rights of people with disabilities in judicial field in China are resulted from a combination of reasons.These reasons exist in varying degrees in terms of access to equal recognition before the law,accessibility,reasonable accommodation and procedural accommodation.There are both common and individual causes.The main reasons for the problems of guaranteeing the rights of persons with disabilities in the judicial sphere are as follow:on the one hand,there is a gap between the system of guaranteeing the rights of persons with disabilities in China’s judicial field and the concept of guaranteeing the rights of persons with disabilities in international judicial field--there is a discrimination discourse in the text of the Constitution,rather than a discourse under the rights model of the Convention on the Rights of Persons with Disabilities;there is substitute decision-making in civil law rather than supportive decision-making in the ention on the Rights of Persons with Disabilities,;There is a relative lack of “rights to power”in criminal law,and the rights of people with mental disabilities are not adequately protected.On the other hand,there is a discrepancy between the practice of protecting the rights of people with disabilities in judicial field and the legal texts on protecting the rights of people with disabilities in judicial field--cultural and institutional disability discrimination affects the awareness of the subjects of institutional practice;low awareness of the Convention on the Rights of Persons with Disabilities affects the literacy of the subjects of institutional practice;and external guarantees and monitoring mechanisms for the implementation of institutional texts need to be further improved.In addition,the inadequacy of the public legal service system,such as the lack of awareness among legal service providers and relevant support staff,the limited role of social organizations for persons with disabilities,and the lack of effectiveness of the work of the Disabled Persons’ Federation,all affect the actual effect of safeguarding the rights of persons with disabilities in judicial field to varying degrees.The fifth chapter puts forward optimization of the protection of the rights of people with disabilities in judicial field.With regard to the shortcomings in the guarantee of the rights of persons with disabilities before the law in terms of equal recognition,accessibility,reasonable accommodation and procedural accommodation in judicial field,and the reasons for these shortcomings,they should be cracked in three dimensions: legislative philosophy,institutional design and implementation.At the dimension of legislative philosophy,the mainstreaming of the rights of persons with disabilities should be included in the overall vision of the legislative system,and the concept of equality for persons with disabilities should be incorporated into laws and regulations and various policies.For example,the “disability” discourse under the“mercy model” and “medical model” should be transformed into “rights model”.The change from alternative decision-making to supportive decision-making and the revision and improvement of laws and regulations on compulsory medical discharge procedures should be put into practice.At the dimension of institutional design,equality consciousness at both the cultural level and the institutional level,would enhance the awareness of disability equality through institutional practices;better humanistic,moral and professional qualities,would strengthen disability equality through institutional practices;more investment into judicial resources related to disability issues,would redeem the internal financial shortages,and would also secure the implementation of judicial texts;and transparent governance and diverse public participation would secure supervision from general public.In addition,we will improve the external guarantee for the implementation of system by increasing the investment in judicial resources for people with disabilities and breaking through the inherent limitations caused by the lack of funds.At the dimension of implementation,the public legal service system should be further improved to raise the awareness of legal service providers and relevant support staff to guarantee the equal participation of people with disabilities in litigation rights;the role of social organization for people with disabilities in monitoring and guiding should be brought into play,and the role of the Disabled Persons’ Federation in internal and external cooperation and positive linkage should be optimized.At legislative philosophy,institutional design and implementation dimensions,an all-round and systematic protection system will be built to solve the problems in the protection of the rights of people with disabilities in judicial field,and to continuously enhance their sense of access,happiness and security,so that the people,including people with disabilities,will feel fairness and justice in each and every case.