Views of the Committee on the Rights of Persons with Disabilities dated August 18, 2017 in the case of Boris Makarov v. Lithuania (communication No. 30/2015).
In 2015, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Lithuania.
Subject of the message: the right to have legal capacity on an equal basis with others.
Substantive issues: access to court, exercise of legal capacity, reasonable accommodation.
The Committee's legal position: The Committee recalls that, in accordance with article 12, paragraph 3, of the Convention on the Rights of Persons with Disabilities, States parties have an obligation to "take appropriate measures to provide persons with disabilities with access to the support they may need in the exercise of their legal capacity". It also recalls that, in accordance with article 13, paragraph 1, "States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including by providing for procedural and age-appropriate adjustments to facilitate their effective role as direct and indirect participants, including witnesses, at all stages of the legal process, including the stage of investigations and other stages of pre-trial proceedings." The Committee considers that, although States parties have some discretion in determining the procedural mechanisms that allow persons with disabilities to exercise their legal capacity, the relevant rights of the person concerned must be respected (paragraph 7.6 of the Views) (See communication No. 7/2012, Marlon James Noble v. Australia, Views adopted on 2 September 2016, paragraph 8.6.).
The Committee's assessment of the factual circumstances of the case: access to justice did not occur in the case of Ms. Makarova, despite the fact that, being a direct victim of the incident, she was clearly a "direct participant" in the relevant trials (See communication No. 11/2013, Gemma Beasley v. Australia, Views adopted on April 1, 2016, paragraph 8.9.). It is also clear to the Committee that Ms. Makarova wanted her position to be heard during the court hearings, but she was not provided with any form of accommodation to enable her to do so: she could not attend the hearings because of her disability; she informed the State party about this and asked the State party to ensure her legal representation in the first instance and in the appellate instance, but she was not provided with any assistance. Considering that the State party has not provided any form of "reasonable accommodation" for Ms. Makarova to participate in the court hearings and subsequent appeal procedure in connection with her case, the Committee considers that the State party has violated her rights under articles 12, paragraph 3, and 13, paragraph 1 The Convention (paragraph 7.6 of the Views).
In accordance with article 2 of the Convention, "reasonable accommodation" means making, when necessary in a particular case, necessary and appropriate modifications and adjustments that do not become a disproportionate or unjustified burden, in order to ensure the realization or exercise by persons with disabilities on an equal basis with others of all human rights and fundamental freedoms.
The Committee's conclusion: the State party has failed to comply with its obligations under articles 12, paragraph 3, and 13, paragraph 1, of the Convention (paragraph 7.7 of the Views).