Message: Michael Lockry vs. Australia. Message No. 13/2013. The Views were adopted by the Committee on the Rights of Persons with Disabilities on April 1, 2016.
In 2013, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Australia.
Subject of the message: participation of deaf persons in the jury.
Substantive issues: equality and non-discrimination; reasonable accommodation; equality before the law; freedom of expression; political participation.
The Committee's legal position: The definition of discrimination on the basis of disability contained in article 2 of the Convention clearly states that "it includes all forms of discrimination, including denial of reasonable accommodation"... The Committee recalls that discrimination may result from the discriminatory application of a rule or measure that, at first glance, is neutral or does not discriminate, but at the same time disproportionately affects the interests of a disabled person (See communication No. 10/2013, S.K. v. Brazil, Decision on Inadmissibility of October 2, 2014, paragraph 6.4.). In addition, in accordance with paragraph 1 of article 5 [of the Convention], States parties must ensure the equality of all persons before and under the law and their right to equal protection of the law and equal enjoyment of it without discrimination, and in accordance with paragraph 3 of article 5, States parties are obliged to take all appropriate steps to ensure reasonable arrangements for the promotion of equality and the elimination of discrimination (paragraph 8.3 of the Considerations).
The Committee recalls that, according to 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 (See communication No. 5/2011, Jungelin v. Sweden, Views of 2 October 2014, paragraph 10.4.). The Committee considers that, in assessing the reasonableness and proportionality of steps to ensure adaptation, States parties enjoy a certain freedom of interpretation. However, they are obliged to ensure that a thorough and objective assessment is carried out, taking into account all relevant elements, before deciding that appropriate support and adaptive measures could become a disproportionate or unjustified burden on the State party (paragraph 8.4 of the Considerations).
The Committee recalls that, according to this provision, States parties are obliged to take appropriate measures "to enable persons with disabilities to lead an independent lifestyle and participate fully in all aspects of life"... The Committee notes that the performance of jury duties is an important aspect of public life within the meaning of article 9, paragraph 1, of the Convention as one of the manifestations of citizenship... The Committee also recalls that, according to its general comment No. 2 (2014) on article 9 of the Convention: "Accessibility", the obligation to ensure accessibility is unconditional, and that it is extremely important to approach the issue of accessibility taking into account all its aspects, including communication issues. Similarly, access should be effectively ensured on an equal basis with others in accordance with the prohibition of discrimination, and denial of access should be considered a discriminatory act (paragraph 8.6 of the Opinion).
The Committee recalls that, in accordance with article 21 (b) of the Convention, States parties shall take all appropriate measures to ensure that persons with disabilities can enjoy the right to freedom of expression and belief, including the freedom to seek, receive and impart information and ideas on an equal basis with others, using all forms of communication of their choice, based on recognition and encouraging the use of various means and formats of communication within the framework of official relations. The Committee... Recalls that, according to article 2 of the Convention, "communication" includes languages and alternative methods, methods and formats of communication, which, of course, include subtitles (paragraph 8.8 of the Opinion).
The Committee recalls that, under article 13 of the Convention, States parties are obliged to ensure effective access to justice for persons with disabilities on an equal basis with others in order to facilitate their effective role as "direct and indirect participants in all stages of the legal process", including by ensuring procedural and age-appropriate adjustments... The Committee... Recalls that article 29 (b) of the Convention requires States to actively promote an environment in which persons with disabilities can participate effectively and fully in the management of public affairs without discrimination and on an equal basis with others, and to encourage their participation in public affairs. In this regard, attention should be paid to the participation of persons with disabilities in the justice system, not only as plaintiffs, victims or defendants, but also, inter alia, in the form of performing jury duties on an equal basis with others (paragraph 8.9 of the Considerations).
The Committee's assessment of the factual circumstances of the case: The Committee takes note of the author's complaint that the refusal to provide him with subtitling services through which he could perform the duties of a jury member is discriminatory, since it amounts to a refusal to provide reasonable accommodation in violation of paragraphs 1 and 3 of article 5 of the Convention. The Committee also takes into account the State party's contention that there has been no violation of the author's rights under article 5 of the Convention, since the applicable national legislation is not discriminatory and the differential treatment provided for by the Jury Act is lawful. The State party... Declares that its legislation and policies ensure reasonable accommodation in accordance with the requirements of the Convention (paragraph 8.2 of the Considerations).
The author was subpoenaed three times to serve as a member of the jury, including twice after he said that he would like to participate in the selection process and that he would need subtitles. The Committee... Notes that, in refusing the author's request for subtitling services, the sheriff recommended that he submit a medical report stating that he was suffering from deafness and informed him that otherwise he would face a fine of US$ 1,100 for failure to perform the duties of a member of the jury. In addition, the Sheriff's Office explicitly informed the author that he could not serve as a member of the jury due to the fact that he was deaf, and at the same time justified its refusal to provide subtitles under section 48 of the Jury Act 1977, considering that the presence in the conference room of a person who was not a member of the jury, It would be incompatible with the principle of confidentiality of jury deliberations (paragraph 8.3 of the Considerations).
In the present case, the Committee notes that the remedial services provided by the State party to support persons with hearing disorders would not have allowed the author to participate in the jury on an equal basis with others. It also notes that, contrary to the State party's claims that the involvement of stenographers would affect the complexity, cost and duration of trials, it has not provided any data or analytical calculations to confirm that this would be a disproportionate or unreasonable burden. In addition, although the principle of confidentiality of jury meetings is certainly subject to respect, the State party has not presented arguments to justify the impossibility of taking any corrective measures, in particular swearing jurors in front of the court, in order to allow the person providing the subtitling services to perform their functions without compromising the confidentiality of jury meetings the jury. The Committee concludes by noting that subtitling is not an innovation and that some judges and lawyers with hearing disorders actually perform their daily functions using such devices. Based on the information available, the Committee considers that the State party has not taken the necessary measures to ensure reasonable accommodation for the author and concludes that refusal to provide subtitling services without a proper assessment of whether such a measure would constitute a disproportionate or unreasonable burden amounts to discrimination on the basis of disability in violation of the author's rights under paragraphs 1 and 3 of article 5 of the Convention (paragraph 8.5 of the Opinion).
In the present case, by refusing to provide subtitling services, the State party failed to take appropriate measures to allow the author to serve as a member of the jury, and thereby prevented him from participating in one of the obvious "aspects of life" in violation of his rights under article 9, paragraph 1, [of the Convention], considered separately or in in conjunction with articles 2 and 4 and paragraphs 1 and 3 of article 5 of the Convention (paragraph 8.6 of the Views).
With regard to the author's complaint under article 21 of the Convention, the Committee notes the State party's contention that in the present case the State of New South Wales has complied with the provision on "recognition and promotion of the use of sign languages" and other means of communication and that the obligations under article 21 [of the Convention] will be implemented in stages. The Committee also notes the author's view that article 21 [of the Convention] does not contain rights and obligations that must be implemented in stages, and that the measures that the State party claims it has taken to provide opportunities for deaf persons to participate in jury work have not been adapted to its needs (para. 8.7 Considerations).
The Committee takes note of the author's contention that a juror is a person who bears public responsibility for the administration of justice "in the context of interaction with other persons", including other jury members and judicial officials, and that such interaction therefore constitutes "official communication" within the meaning of article 21 of the Convention. In the light of the above, the Committee considers that the refusal to provide the author with the format of communication he needs to perform his duties as a member of the jury, and thus express his opinion in the framework of official relations, amounts to a violation of article 21 (b) of the Convention, considered separately and in conjunction with articles 2, 4 and paragraphs 1 and 3 of article 5 of the Convention (paragraph 8.8 of the Opinion).
With regard to the author's complaints under articles 13, paragraph 1, and 29 of the Convention, the Committee takes note of the State party's argument that this complaint is unfounded, since it considers that "effective access to justice" refers to the accessibility of the justice system and that the terms "direct" and "indirect" participants do not apply to jurors. The State party also argues that the provision on "reasonable accommodation" is not applicable to article 13 of the Convention. In turn, the author claims that the expression "direct and indirect participants" refers to persons involved in the activities of the justice system, and that the obligation under article 5 of the Convention to provide "reasonable accommodation" applies to the exercise of these rights... The Committee notes that the performance of jury duties is an integral part of the Australian judicial system and as such constitutes "participation" in trials (paragraph 8.9 of the Opinion).
The Committee's conclusions The State party has failed to comply with its obligations under article 5, paragraphs 1 and 3, article 9, paragraph 1, article 13, paragraph 1, of the Convention, considered separately and in conjunction with article 3, article 5, paragraph 1, article 29 (b) and article 21 (b) of the Convention, considered separately and in conjunction with articles 2 and 4, as well as paragraphs 1 and 3 of article 5 of the Convention (paragraph 9 of the Opinion).