Article 13 Access to justice
Limited application of legal aid affects right of access to justice by PWDs (in response to Paragraphs 80, 81, and 88 of the State Report)
Article 8 of the “Implementation Act” requires the State to provide legal services to PWDs “in accordance with the law” when they seek remedies for violations of their rights. However, the current legal system only provides such service to persons with mental disabilities and other designated disabilities during criminal proceedings. According to the national “Legal Aid Act,” legal aid is first made available to those who are “structural, mental, and intellectually damaged or incomplete, unable to give complete declarations, and have not appointed legal counsel during investigation and trial; or have not appointed any agent during trial, but one is deemed necessary by the judge.” PWDs other than those with psychiatric or intellectual disabilities cannot seek legal aid if they are unable to meet other legal criteria (such as having no financial ability or indigenous status). According to national regulations on judicial procedures, only the “Code of Criminal Procedure” is the only available law on judicial procedure that requires mandatory defense for persons with intellectual or psychosocial disabilities. There is no such legal requirement for administrative and civil proceedings. Consequently, there is doubt whether intellectually disabled persons with intellectual or mental disabilities can invoke the “Legal Aid Act” and receive legal aid in administrative and civil proceedings.
We maintain that the current implementation of the “Legal Aid Act” as applied to PWDs is unable to ensure the right of access to the legal process and recommend that the Government conduct a comprehensive review with a view to reforming the Act.
Expand the scope of legal aid applicability in legal procedures to ensure access to the legal process. Legal aid should be comprehensively available in areas of civil and administrative litigation and non-litigation proceedings beyond criminal and juvenile criminal cases.
If comprehensive legal aid is not practicable, PWDs should receive comprehensive legal aid to some degree. For example: legal aid for PWDs in institutions or facilities or those who lack financial ability due to poverty.
There should be an amendment to the law that mandates responsibility for the courts, prosecutors, police, social workers, and prison personnel to inform PWDs that they are eligible for legal aid. Related agencies should prepare information on whether legal aid is available to PWDs.
PWDs in legal proceedings unable to receive procedural accommodation
In response to Paragraph 85 of the State Report, the State has to ensure physical, facility, information, and communication accessibility by PWDs in legal proceedings: In its Equality and non-discrimination under Article 5 of the CRPD Report (A/HRC/34/26), the Office of the United Nations High Commissioner for Human Rights stressed in Para. 35 that the concepts of “excessive or improper burdens” does not apply to procedural accommodation in legal proceedings. Protections should not be restricted by concepts of “excessive or improper burdens.” The inability to provide procedural accommodation during the exercise of legal right to justices has its foundations in discrimination toward PWDs. Moreover, the CRPD Committee stressed that the detention of PWDs based on claims that they are unable to stand trial or bear criminal responsibility violate regulations in Article 14 of the CRPD when passing Section VIII of the Guidelines on Article 14 of the Convention on the Rights of Persons with Disabilities during the 14th session in September 2015.
The need for accommodation reflects the fact that legal procedures or conventions may be incompatible with the practical needs of individual PWDs. Therefore, apart from reviewing, amending litigative powers under the current legal procedures, and regulations on the ability to stand trial, there is an imperative to explore accommodation in legal procedures relating to surveillance, investigation, and litigation to account for the needs of individual PWDs. The following situations often occur in practice under the existing legal system: Before a PWD appears in court, the court does not prepare accessible information beforehand. Such services are also not provided during the litigation counselling window. Only when a court session starts is there a realization that there is a need for sign language interpretation, electronic files, easy-to-read versions of instructional documents, or readers. Consequent hasty efforts to seek assistance are unable to fully provide accessible information and do not allow equal and effective legal protections.
The Government needs to explain:
Are there statistical data on the number and content of various litigation cases brought by PWDs to the courts?
Do the buildings used by the Courts, Prosecutors’ Office, police departments, police stations, social work offices, and legal aid offices meet accessibility standards that allow access by PWDs with different types of disabilities?
Do various agencies provide professional sign language translators, Braille, touch devices, expanded and alternative approaches to provide or obtain information or communication and dissemination? If so, what are the numbers and quantity, frequency of use, accuracy of sign language translation, have the sign language translators received professional legal training, who pays for the sign language translation, and who pays for the Braille and related facilities?
Are accommodations made for PWDs with special needs?
How is technology used to achieve the above accessibility requirements?
Recommendations to the Government
Comprehensively review and amend litigation powers, regulations on the ability to stand trial in existing legal procedures to enable PWDs to have sufficient support to participate in all legal processes.
To explore and develop straightforward principles and scope for procedural accommodation that account for individual PWD needs.
Use statistical data on the number of cases brought by PWDs and their results to establish an “accessible court” on a trial basis. Collect feedback on the trial to understand the practical needs and accommodation necessary for different types of PWDs.
Accessible information: Establish a complete set of standardized workflows to effectively provide PWDs with accessible information beforehand.
Consider providing professional stenographers (not clerks) to record notes on court proceedings, investigations, and appeals based on the varying needs of different disabilities.
Access to justice for persons with mental and intellectual disabilities (in response to Paragraphs 80-84, 88-93 and 97 of the State Report)
When PWDs are arrested for suspicion of committing a crime, Taiwan’s legal system does not have a plan for “competence to stand trial” assessment. Apart from family members, police interviews do not need to involve the participation of support persons, legal counsel, or experts to ascertain a person’s competence to stand trial. In practice, the police tend not to initiate a pause in questioning simply because a person undergoing the interview may be a person with intellectual or psychosocial disabilities. Instead, the police would use the inability of the person to understand the right to silence and the need for assistance from legal counsel to act recklessly during interviews. Such actions deprive persons with intellectual or mental disabilities of the equal right to procedural protections and standard levels of assistance from the start of the legal process.
Once the investigation process and trial procedures begin, current legislation does not permit prosecutors or the courts to halt investigations to ascertain competency to stand trial even if a person with intellectual disabilities was differentially treated during interviews. Instead, legislation permits prosecutors to use investigation conclusions drawn from the person in question during interviews conducted under limited ability, and conduct investigations and raise charges in ways that are disadvantageous to the suspect.
Recommendations to the Government:
Amend the law to establish a system for mental health professionals to act as support persons for the persons with intellectual or psychosocial disabilities and to ensure that interviews, trials, inquiries, and investigations do not take place without the presence of these support persons or legal counsel. This is to prevent PWDs from receiving discriminatory treatment.
Implement education on the equality of PWDs from legal practitioners to common classrooms. There should be no stigmatization or labelling of the persons with intellectual or psychosocial disabilities. Rather, there ought to be recognition that persons with emotional disabilities, psychiatric disabilities, intellectual incapacities, adaptive obstacles, cognitive and neural disabilities are the same as all other persons with illnesses and are part of society. This approach should reduce public exclusion and segregation of the such persons intellectually disabled to and facilitate contact and integration of them PWDs in society.
Persons with intellectual and mental disabilities should be included within the scope of any future anti-discrimination legislation: To prevent situations where persons with intellectual or mental disabilities from being excluded and segregated from society, there should be efforts to avoid stigmatization and discrediting of such persons with intellectual disabilities, and the linking of crime with persons with intellectual disabilities.
In response to Paragraphs 91-93 and Paragraph 97 of the State Report, we recommend that the Government further explain: Are there efforts to priorities efforts at improving the treatment of PWD groups that face multiple forms of discrimination to ensure their access to legal protection? Such groups include aboriginal PWDs, women and girls with disabilities who experience violence and ill-treatment, institutionalized PWDs, and children with disabilities. Are there reasonable accommodations to provide for the special needs of PWDs of different ages, genders, and types of disability in the legal process?
Systematic and differentiating discrimination of the persons with intellectual/ psychosocial disabilities in the criminal code (in response to Paragraph 88 of the State Report)
Despite that the national “Code of Criminal Procedure” does not include regulations on “mandatory defense” that protects the right of certain PWDs (including those with psychiatric, emotional, and intellectual disabilities) to defense before the judiciary. Hence, explanations and applications of substantive criminal law proceedings under substantive law continue to systematically discriminate against persons with psychiatric disabilities.
Article 19 of the Criminal Procedure Code requires for state: “There should be consideration of commutation if the act occurs when psychiatric disability or other similar types of emotional and intellectual deficiencies damage or destroy cognitive ability or control functions.” Commutation should be possible regardless of whether it is mental, emotional, intellectual functions, or drug abuse that causes damage to “cognitive ability” (the ability to discern one’s objective and subjective environment) and control functions (the ability to understand, recognize, and control one’s actions when able to discern one’s subjective and objective environment).
However, current legal practice the application of Article 19 to psychiatrically disabled persons automatically limits and shrinks the scope for criminal behavior. Apart from psychological psychosis, all other conditions do not qualify as psychiatric disabilities. Excluded are drug abusers, those with personality disorders, and those with emotional illness. We are of the opinion that such an explanation not only violates the legal principle that “criminal law explanations should advantage the defendant.” but also contravenes the rights of persons with emotional and intellectual disabilities of their right to equal treatment during sentencing.
Additionally, when the courts decide whether to apply Article 19, they will often seek the opinion of clinical psychologists and psychiatrists. The courts would often directly ask psychologists and psychiatrists to ascertain whether a personal “has ability to be fully criminally liable,” which is a legal question. This causes medical professionals with no legal training to ascertain criminal liability and create the following loopholes: Even if doctors ascertain that defendants are confused due to serious paranoia and acute psychiatric disorders; the defendants may still have “full criminal liability.” The courts use legal standards, ignore prognoses of psychiatric disorders, and conclude that the defendant “has complete criminal liability and there is no need for commutation.”
Require judicial, law enforcement, and medical personnel to receive regular training (in response to Paragraphs 94, 95, and 97 of the State Report)
The Government should implement Article 13(2) of the CRPD to promote appropriate training: Even though judges and prosecutors receive related training, this training is neither obligatory nor compulsory. There are few classes available and they lack cooperation with PWD organizations. Whether public defenders, lawyers, law enforcement officers, social workers, medical practitioners, and prison officers receive similar training is unclear. Therefore, the Government should explain whether it has planned or opened obligatory, compulsory, and periodic training sessions to ensure that the aforementioned professionals all receive training.
Strengthen basic familiarity with the CRPD and mental, emotional and intellectual disabilities among legal practitioners, including judges, prosecutors, and lawyers. Establish large- and medium-sized medical facilities for psychiatric, emotional, and intellectual disability within the jurisdiction of each court and police department to provide timely informational services that address questions pertaining to psychiatric disorders and interviews. This can help the respective jurisdictions establish standardized work flows and service networks among psychologists and psychiatrists to support interviews of relevant parties. Once it is ascertained that a party is a person with psychiatric disability, all inquiries and investigations should cease immediately.
Strengthen training in basic legal matters and human rights for mental health professionals. In particular, emphasize proper procedures in “the Convention” and “the Criminal Procedure Code to avoid situations where psychiatric evaluations cross the boundaries of professional competence and knowledge, and make legal determinations that ought to be under the purview of legal professionals instead.
The content of the training above should include convention rights, procedural accommodation, reasonable accommodation, with special emphasis on Paragraph 109-111 and familiarity with related issues in Paragraph 113-116 of this Report.
To establish support mechanisms for PWDs incarcerated in detention facilities (in response to Paragraphs 105-107 of the State Report)
According to provisions stipulated under Article 6 of the “Prisons Act,” when a convicted person is unsuitable for incarceration they have a right to appeal and seek relief. However, when the target of litigation is a prison or related agency, most prisons will not provide professional legal advice or support. Most incarcerated persons are unaware of their rights and unable to seek the protections they are entitled to through legal recourse. This is even more so in the case of PWDs who do not have access to procedural accommodation. In responding Paragraph 35 of Article 5 of the CPRD the report of the United Nations Office of the High Commissioner for Human Rights (OHCHR) (A/HRC/34/26) states that providing procedural accommodation to litigant should not be subject to restrictions by the concept of “excessive or inappropriate burdens.”
We recommend: To ensure that PWDs receive effective legal protections on the basis of quality, the special needs of incarcerated PWDs should be incorporated for consideration in prison reform plans. These should include the following: apart from establishing the outward supervisory system for a prison, the current mechanisms for appeals should be strengthened through legislation, the judiciary, monitoring, and the creation of an appeals committee consisting of public litigators from across the country; there is an imperative to provide incarcerated PWDs with practicable legal aid resources (such as telephone voice assistance or facsimile assistance) and procedural accommodation. Each corrective enforcement agency should not prevaricate or delay on carrying out these changes. For matters pertaining to a PWD’s ability to function independently, the Ministry of Health and Welfare and social welfare departments should jointly participate in formulating supportive policies to assist PWDs.