Judicial guarantees for the protection of the rights of people in vulnerable situations in a state of health emergency

By Judge Teresa Cardenas Puente

Judge Teresa Cardenas Puente is a Family Court Judge in Junín, Peru, and a member of International Association of Women Judges (IAWJ) and of the Asociación Peruana de Mujeres Juezas (APMJ). The original article was posted on the website of the IAWJ on 02 April 2020. All opinions expressed in this piece are solely those of the author as an external expert and do not necessarily reflect the official position of UNODC.

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The World Health Organization (WHO) has declared the spread of COVID–19 an international health emergency. All countries have also taken action against the emergence and spread of the pandemic and the subsequent health emergency. Most countries have declared states of emergency and adopted restrictive measures for human movement, such as closing air, land and sea borders, as well as in some cases, compulsory social isolation.

These measures include the restriction of some fundamental rights recognized by the states in their respective constitutions. It is precisely in this context that people in vulnerable conditions are affected, especially people with disabilities and the elderly. It is, therefore, necessary for judicial systems to adopt necessary guarantees for the protection of the rights of the most vulnerable. This includes, in particular, providing for the designation of support and safeguards as a judicial guarantee.[1] In emergency situations, states must enact judicial guarantees to which they have committed themselves in the different international instruments for the protection of the rights of vulnerable people.

This obligation not only pertains to the protection of fundamental rights but also guarantees the effective exercise of urgent rights in restrictive contexts, such as the current international state of emergency. The current context presents new challenges for the judiciary within the framework of the international obligations of states to guarantee and promote the full exercise of human rights and fundamental freedoms of persons with disabilities without discrimination pursuant to article 4 of the Convention on the Rights of Persons with Disabilities: “To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention.” As well as pursuant to the provisions of article 4 of the Inter-American Convention on Protecting the Human Rights of Older Persons, which safeguards “adequate access to justice, in order to ensure differentiated and preferential treatment for older persons in all areas.”

It must be ensured that vulnerable groups can exercise their rights on an equal basis, in particular the demand and/or request for the designation of support and safeguards. Vulnerable groups experience challenges, inherent to their subsistence, to exercise their basic rights, such as a significantly higher risk of contagion or mobility difficulties. Therefore, the designation of support people and safeguards is an effective resource for the protection of vulnerable persons and must be considered as an indispensable judicial guarantee based on several advisory opinions issued by the Inter-American Court of Human Rights.

Thus, the indispensable judicial guarantees for this vulnerable group of people must be accompanied by a set of provisions to ensure access to justice and the effective protection of their rights. These provisions include digital access to justice for these types of claims, or the implementation of teleworking in the courts for the administration of justice. This can be done by using technological tools that are easily accessible and already available, such as:  email and telephone for the notification of resolutions, the use of smartphone messaging applications, such as WhatsApp or Sky and the management of Google's online agendas. In addition, the hearings can be conducted using Google Hangout meetings, where judges interact with and interview the applicants, with the possibility of recording such proceedings.

The use of digital access and teleworking in the process of the designation of support and safeguards can be easy and immediate because it is a non-contentious process, known in comparative law as a “voluntary jurisdiction”. The resolution of this process is easy and expeditious because there is no demand from the defendant or conflict of interest. Its only purpose is to eliminate uncertainty in legal relations. In the current situation, the management of the judicial process and the resolution of the procedure for people in vulnerable conditions must be based on human rights.

Finally, we can see that globalization and global challenges go beyond individuals and/or states, resulting in the need to strengthen a new generation of human rights in the international order. The new generation of human rights belongs to the community, as is the case with the right to development, peace and solidarity. The latter, the right to solidarity, is a principle for humanity that pushes us towards a more just society.