A/HRC/37/25 persons with disabilities cannot challenge deprivation of their legal capacity or the denial or restrictions of their rights that ensue as a result. 46 34. Deprivation of legal capacity, whether formally mandated or as a result of de facto practice, leads to exclusion from judicial processes and has pervasive effects on the right of persons with disabilities to a fair trial under due process of law. For example, defendants with psychosocial and intellectual impairments are often deprived of their right to be heard in person, pursue adversarial proceedings, give evidence or contest witnesses. Such limitations affect the principles of equality of arms and non-discrimination, impeding access to justice on an equal basis with others. The Committee has exposed such limitations imposed on persons with disabilities standing trial, and has consistently recommended that States parties refrain from and prohibit such practices, and repeal those legal provisions from their laws.47 35. Persons with disabilities may also be subjected to tests to assess their competence or fitness to stand trial that may lead to detention and treatment against their will, and commonly for durations that exceed the sentences ordered upon conviction. The Committee has strongly rejected the concept of unfitness to stand trial and its discriminatory character 48 and has called for its removal from the criminal justice system.49 This position is supported by the Working Group on Arbitrary Detention, which has called for persons with psychosocial disabilities to be given the opportunity to stand trial promptly, with support and accommodations, rather than declaring such persons incompetent.50 36. Another manifestation of the denial of legal capacity within the access to justice is the practice of applying “non-liability” (“inimputabilidad”; “non-imputabilité”) or the “insanity defence”, according to which the individual is declared to have been “of unsound mind” and/or “insane” at the moment of the commission of the alleged crime, resulting in exemption from criminal responsibility. The individual is then diverted from the proceedings and subjected to security measures entailing deprivation of liberty and treatment against his or her will, often indefinitely, thereby denying him or her the same due process guarantees as others, in violation of the right to a fair trial. The Committee has recommended revising criminal procedures to repeal the concept of non-liability, as well as any version of the insanity defence. In addition, it has called for eliminating security measures that involve forced medical or psychiatric treatment in institutions, and expressed concern about those that involve a lack of the guarantees regularly provided in the criminal justice system and an indefinite deprivation of liberty, recommending that they be abolished.51 37. The Committee has highlighted the intersection between access to justice and equal recognition before the law and recognized support for decision-making, as expressed in article 12 (3) of the Convention, as a means for exercising the right to access to justice. 52 The provision of supported decision-making can facilitate instructing a lawyer, directing one’s defence in court and self-representation. 38. Supported decision-making requires further development in the context of access to justice; protocols and guidelines supporting the work of judges, lawyers and other agents of 46 47 48 49 50 51 52 10 European Court of Human Rights, Grand Chamber, Stanev v. Bulgaria (application No. 36760/06), judgment of 17 January 2012. See, for example, CRPD/C/CAN/CO/1, paras. 31 (b) and 32 (b); CRPD/C/ETH/CO/1, paras. 31 and 32; CRPD/C/ARE/CO/1, para. 27 (b); CRPD/C/THA/CO/1, paras. 29 and 30; CRPD/C/QAT/CO/1, para. 27; CRPD/C/DNK/CO/1, para. 34; CRPD/C/KOR/CO/1, paras. 27 and 28; and CRPD/C/ECU/CO/1, paras. 28 and 29 (b). “Guidelines on article 14 of the Convention on the Rights of Persons with Disabilities: the right to liberty and security of persons with disabilities, adopted by the Committee at its fourteenth session, held in September 2015”, para. 16. See CRPD/C/KOR/CO/1, para. 27. See the basic principles and guidelines on remedies and procedures on the right of anyone deprived of their liberty to bring proceedings before a court (A/HRC/30/37, annex), guideline 20, para. 107 (b). See CRPD/C/KEN/CO/1, paras. 27 and 28; CRPD/C/ITA/CO/1, para. 35; CRPD/C/ECU/CO/1, paras. 28 and 29 (b); CRPD/C/PRT/CO/1, para. 33 (b); and CRPD/C/BRA/CO/1, paras. 30 and 31 (a). See general comment No. 1, para. 38.