TANAKA Nobuaki
Lawyer

1. Introduction

In the 208th ordinary session of the Diet, the “Act on the Promotion of Measures Relative to the Obtainment and Use of Information and Communication by Persons with Disabilities” (hereinafter referred to as “this Act”) was deliberated and enacted.  This act is expected to promote the expansion of information accessibility in the daily and social lives for persons with disabilities and aims to eliminate communication barriers.

In this paper, I would like to discuss the significance of Article 13 of this Act that stipulates “judicial proceedings” as one of the areas necessary for persons with disabilities to lead their daily and social lives independently.

2. The importance of the Right of Persons with Disabilities to Access the Courts

(1) Right of Access to the Courts (Article 32 of the Constitution)

Article 32 of the Constitution of Japan states that “No person shall be denied the right of access to the courts,” stipulating the right of access to the courts as one of the basic human rights.  It goes without saying that persons with disabilities are also guaranteed this right.

(2) International Framework for Access to Judicial Proceedings for Persons with Disabilities

The “Convention on the Rights of Persons with Disabilities” (hereinafter referred to as the “CRPD”), adopted in the 61st Session of the United Nations General Assembly on December 13, 2006, also stipulates in Article 13 that “States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations.”  Japan ratified CRPD on January 20, 2014 and became a State Party.  We have to note that “procedural accommodation” is a different concept from “reasonable accommodation.”   While reasonable accommodation does not impose a “disproportionate or undue burden” (Article 2 of CRPD), it is made clear that procedural accommodation is not limited by the concept of “disproportionate or undue burden.”  From this, it can be understood that the right to a trial is positioned as an important matter.

In August 2020, the United Nations published the International Principles and Guidelines on Access to Justice for Persons with Disabilities (Geneva, August 2020), prepared mainly by Ms. Catalina Devandas Aguilar, Special Rapporteur on the Rights of Persons with Disabilities.  The International Principles and Guidelines set out ten principles and several guidelines for each principle regarding access to judicial proceedings for persons with disabilities.  It also stipulates securing the means of information access and communication support in judicial proceedings for persons with disabilities.  For example, in guideline (b) of Principle 4, it is stipulated, “Ensure that information about justice systems and procedures can be accessed by various methods, as appropriate and needed,” including sign language and Braille.

(3) The Basic Act for Persons with Disabilities

In the Basic Act for Persons with Disabilities, Article 29 (Accommodation in Judicial Proceedings) stipulates, “(The national government and local public entities) must provide accommodation to secure a means of communication in accordance with the characteristics of individual persons with disabilities so that they are able to smoothly exercise their rights.”  In the domestic law, it is clearly stated that it is important to secure a means of communication according to the characteristics of individual persons with disabilities.

3. Issues with the Current Law

The CRPD is at the center of the legal framework that seeks to substantially secure the right to a trial stipulated in the Constitution.  On the other hand, in domestic law there are provisions in the Basic Act for Persons with Disabilities, but the Code of Civil Procedure and the Code of Criminal Procedure only provide for interpreters for persons who are unable to hear or speak and the rules that they can ask and answer questions by means of writing (Article 154 of the Code of Civil Procedure, Article 176 of the Code of Criminal Procedure, and Article 125 of the Rules of Criminal Procedure).  Furthermore, under the Code of Civil Procedure, the cost of a sign language interpreter required by a person with a hearing impairment is treated as a legal cost and borne by the losing party.

In the current legal system, there are inadequate provisions regarding sign language interpreters and other communication supporters required by persons with disabilities when they try to use judicial proceedings, and there is no system of using public funds for the costs of such assistance.  We have to say that as a state party to the CRPD, our legal system is insufficient as there are no general provisions of procedural accommodation for persons with disabilities.

4. Expectations of This Act

Under these circumstances, I believe that the provision of “judicial proceedings” in Article 13 of this Act, even only as an example, is of great significance.  In particular, Article 10 of this act stipulates that necessary legislative or financial and other measures must be taken to implement measures related to the obtainment and use of information and communication by persons with disabilities.  Financial measures concerning the necessary measures in the judicial field have also been clarified.

In addition, Article 9 of this act stipulates that when the national government formulates a Basic Program for Persons with Disabilities, it shall be based on the purpose of the provisions of this Act.  When the government formulates a basic program for persons with disabilities, it is stipulated that the opinions of the Commission on Policy for Persons with Disabilities must be heard (Article 11, Paragraph 4 of the Basic Act for Persons with Disabilities and Article 32, Paragraph 2, Item 1 of the same Act).  The Commission on Policy for Persons with Disabilities shall monitor the status of implementation of the formulated Basic Program for Persons with Disabilities and, when deemed necessary, the Commission may make recommendations to the Prime Minister or to the relevant ministers through the Prime Minister (Article 32, Paragraph 2, Item 3 of the Basic Act for Persons with Disabilities).  With this, in the future, it will be possible to include necessary measures related to judicial proceedings as part of the Basic Program for Persons with Disabilities, and it will be possible for the Commission to continuously monitor the stipulated contents.

5. Conclusion

In order for persons with disabilities to defend their rights, it is necessary to create an environment in which judicial proceedings are accessible without barriers.  In that sense, the fact that “judicial proceedings” are exemplified in Article 13 of this Act is expected to lead to the realization of necessary measures in the judicial field.

In addition, in the 208th ordinary session of the Diet, the Act for Partial Modification of the Code of Civil Procedure was deliberated and enacted to advance the use of IT in civil court proceedings.  As a supplementary resolution, both the House of Representatives and the House of Councilors passed a resolution stating, “Regarding procedural considerations for persons with disabilities who use civil proceedings... (omitted), consideration should be given to the need for legislation that would contribute to the improvement of access for persons with disabilities, and necessary measures should be taken.”  We hope that sufficient deliberations will be held in light of the purpose of this law, and that access to judicial procedures for persons with disabilities will be expanded, including civil court proceedings.