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| [discom50.htm] |
Legislation on disability will render meaningless unless individuals have effective remedies if violations of their rights occur. The domestic remedies should afford a real opportunity for review and reparation, while basic norms of impartiality and independence of the judiciary and of due process should prevail. If the domestic remedies fail to provide an effective remedy, the individuals still have recourse to the international machinery for protection of human rights. The effectiveness of international complaint procedures can be questioned, but a complaint procedure may work as therapy to the victim himself. The impact of international decisions operates not directly upon Governments, but through international and domestic public opinion.
The international rule of exhaustion of local remedies before taking to international remedies, is one of the basic rules in international law. The object of the rule is to enable the respondent State to correct the harm and to do justice. The application of the rule of domestic remedies to the protection of human rights depends on conventional provisions.
A person whose rights have been violated should make use of domestic remedies to right a wrong, rather than address the issue to an international committee, court or other tribunal. Access to an international organ should be available, but only as a last resort, after the domestic remedies have been exhausted. A person should seek redress from domestic remedies because these are normally quicker, cheaper and more effective than the international ones.
Local remedies can be seen more effective in the way that a court of appeal can usually reverse the decision of a lower court, whereas the decision of an international organ does not have that effect, although it will engage the international responsibility of the State concerned. If no domestic remedies are available or there is unreasonable delay on the part of national courts in granting a remedy, clearly, a person should have recourse to international remedies. The rule of local remedies should not constitute an unjustified impediment to access to the international remedies.
Most of the international recourse procedures require from the petitioner prima facie personal involvement in the matter. Claim of being a victim is a condition laid down in most of the conventions that provide for remedies. However, the Human Rights Committee has agreed to consider communications submitted on behalf of alleged victims by others, when the victim has been unable to submit the complaint himself. This opens the complaint system of the Covenant to a vast number of victims who cannot contact a lawyer. The petitioner must show authority to act on the behalf of the victim; in practice the Committee has opened the door only for persons showing a close family connection. The American Convention on Human Rights recognises explicitly actio popularis in its article 44, stipulating that: "Any person or group of persons, or any non-governmental entity legally recognised in one or more Member States of the Organisation, may lodge petitions with the Commission containing denunciations or complaints of violations of this Convention by a State Party."
The European Convention for the Protection of Human Rights and Fundamental Freedoms stipulates in article 25 that the person whose rights have been violated has the right to an effective recourse.
On the interstate level, with regard to human rights violations, any State may pursue international remedies against any other State. The International Court of Justice gave currency to this idea in the Barcelona Traction Case by recognizing that basic rights of human persons create obligations erga omnes. Since the judgement of the International Court of Justice in the Barcelona Traction Case, there has been growing acceptance in contemporary international law of the principle that all States have a legitimate interest in and the right to protest against human rights violations wherever they might occur. It might be argued that violations of human rights, condemned by the Security Council of the United Nations, amount to international crimes. Some international criminal treaties expressly address what are human rights violations, including genocide, torture, hostage-taking, apartheid, war crimes, the disappearance of individuals, slavery and certain forms of terrorism. Often there is a human rights dimension to international crime.
The most highly developed court structure and elaborate set of legislation on disability will be meaningless unless the disabled have access to courts. Persons with disabilities should be equal before the courts; they should have the right to such measures as will ensure that their disability does not render them disadvantaged in courts. This equality before and the access to courts is guaranteed by article 14 of the International Covenant on Civil and Political Rights.
International law also recognises that a person is entitled to certain minimum standards of due process in judicial proceedings. Article 10 of the Universal Declaration of Human Rights stipulates that: "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him."
Persons with disabilities may lack resources required to hire legal aid. The Declaration on the Rights of Disabled Persons, paragraph 11, states that "…disabled persons shall be able to avail themselves of qualified legal aid when such aid proves indispensable for the protection of their persons and properties." The States should provide legal aid to persons with disabilities, as well as for other vulnerable sections of society. Persons with disabilities may have difficulties in financing the costly lawyers' fees. One solution to this problem could be a socialisation of legal services where the lawyers would be obliged to handle certain cases of important social nature at a considerably reduced fee. Another barrier to seek recourse in a court of law can also be the formal structure of the courts. The atmosphere should be encouraging and humanising for its clients. Participation in the legal process and the formal court procedure often results in presenting a disabled person with an inequitable standards.
Conciliation and friendly settlements of disputes should be encouraged, because conciliation procedures are less expensive and protracted than trials. These procedures should not involve the time and money consuming writ procedure. The judge could also play an active role in gathering evidence and engaging in the settlement of conflicts. Another possible alternative is the appointment of conciliation tribunals composed of laymen, charged with the duty of attempting to effect a conciliation between parties. All parties to a proposed lawsuit should be required initially to explore this conciliation procedure. If conciliation fails, parties have their ordinary right of recourse to a formal court.
The concept of due process really refers to the way in which all the rights are policed by the State. Most of the formal protections of due process are linked to a certain image of how such trial courts ought to function. All persons are, according to the International Covenant on Civil and Political Rights, entitled to a fair and public hearing, and at trial stage, to be informed promptly and in a language in which he / she understands the nature of the charge (article 14). A person shall also have the right to the free assistance of an interpreter if he / she cannot understand or speak the language used in court. A deaf person has the right to have the proceedings signed to him or her and a blind person should have the right to have written evidence printed in Braille. These norms are relevant in the context of disability in three respects. Firstly, they are critically relevant in the civil commitment context. Secondly, they are obviously relevant in the context of ordinary criminal proceedings against individuals who happen to have disabilities. Thirdly, they are relevant in the sense of affording a right to the court to vindicate other rights. Thus, the right to a court might be used offensively to establish and vindicate rights.
Individuals whose rights have been violated are victims and, therefore have the right to vindicate their rights in courts or other relevant judiciary bodies. However, persons with disabilities may lack the possibility of effectively pursuing their rights. The rules of locus standi can be radicalised to broaden access to courts to those who hitherto could not come before the court due to poverty or social or physical disability. This can be done by allowing any member of the public or social action group to bring an action on behalf of the person or group of persons to whom the harm was caused. In order to circumvent the time consuming and expensive writ petition, claimants could perhaps be permitted to address a letter to the court in order to commence action.
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