A/HRC/37/56
exploitation, violence or abuse in the context of substituted or supported decision-making
regimes, including arbitrary detention or violations of personal integrity pursuant to mental
health legislation, have access to justice and effective remedies. Those remedies should
include adequate redress and reparations, including restitution, compensation, satisfaction
and guarantees of non-repetition, as appropriate (see A/HRC/34/58, para. 74). National
human rights institutions and independent mechanisms for the promotion, protection and
monitoring of the implementation of the Convention should be mandated to carry out
inquiries and investigations in relation to the enjoyment of the right to legal capacity of
persons with disabilities and provide assistance to persons with disabilities in accessing
legal remedies.
73.
Litigation can play an important role in the reform of legislation on legal capacity. It
can have an impact beyond those directly involved in a particular case, leading to new
judicial criteria and changes in the law. In monist countries where treaties are immediately
incorporated into domestic law once they have entered into force, litigation has the added
value of ensuring the direct application of article 12 of the Convention, thus creating a shift
in case law. Indeed, in many countries courts are already applying the standards of the
Convention, challenging existing legislation that denies persons with disabilities the full
recognition of legal capacity.26
E.
Participation and collaboration
74.
Article 4 (3) of the Convention explicitly requires States to consult closely with and
actively involve persons with disabilities, including children with disabilities, in the
development and implementation of legislation and policies concerning issues relating to
them. States should closely consult with and actively involve persons with disabilities and
their representative organizations in the process of legal harmonization regarding legal
capacity. While the legislative process may vary from country to country, legislatures
should guarantee the participation of persons with disabilities throughout the entire process,
inclusive of deliberative assemblies or chambers that can debate and vote on law proposals.
In many countries, citizens have the right to propose legislative initiatives, referendums and
petitions without the endorsement of political parties or the State authorities. States must
ensure that the procedures of direct democracy are fully accessible for persons with
disabilities.
75.
Persons with disabilities and their representative organizations must also participate
in all decision-making processes related to the design, implementation, monitoring and
evaluation of support services and arrangements. The Special Rapporteur’s thematic study
on the right of persons with disabilities to participate in decision-making provides specific
guidance in that regard (A/HRC/31/62).
F.
Capacity-building
76.
States must complement law reform efforts with training for State authorities, public
officials, service providers, the private sector, persons with disabilities, families and other
key actors. Capacity-building on the Convention is indispensable to ensure the adequate
implementation of the right to legal capacity of persons with disabilities. Training should
also address the intersecting forms of discrimination with regard to legal capacity that
affects persons with disabilities and the forms of prejudice and barriers encountered by
specific groups of persons with disabilities, as well as how to promote and deliver
supported decision-making.
77.
States must promote appropriate training for those working as notaries, since they
play an important role, particularly in civil law countries, in concluding and formalizing
legal transactions, such as contracts, wills, and powers of attorney. In doing so, notaries
make assessments of the capacity of individuals entering into legal relationships. It is
26
For example, Argentina, Colombia, Georgia, Kenya, Latvia, Peru and the United States.
17
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