The participation of persons with disabilities in the Institution of the Jury. Some considerations regarding Organic Law 1/2017, of December 13th.

Abstract

Abstract:
Persons with disabilities have been until now excluded in Spain from the participation in Administration of Justice through the institution of the jury foreseen in Section 125 of the Constitution. Section 8 of the Organic Law on the Court of the Jury established in fact as requirements to be juror «to be in the full exercise of the political rights» (paragraph two), which excludes people with intellectual or psychosocial disabilities who have been deprived of their right to vote by judicial decision as provided in the electoral legislation, as well as «not having physical, psychical o sensory impairments for the performance of the function as juror» (paragraph five). This exclusion was a result of the medical model of disability, which saw as the only solution to the supposed lack of aptitude for the exercise of a right the restriction of it, without considering the possibility of arbitrating means to improve such aptitude. The adoption of the Convention on the Rights of Persons with Disabilities, Article 13 of which requires facilitating persons with disabilities the possibility to fulfill their roles in legal proceedings, made clear that it was necessary to revise this legislation, and in recent years different proposals have been raised, which finally led to the approval of Organic Law 1/2017, of December 13th. This Law maintains the full exercise of political rights as a requirement to be a juror, but has substantially modified Section 8 paragraph 5 of the Organic Law on the Court of the Jury, which today establishes as a condition to be juror «to have sufficient aptitude», adding that persons with disabilities can not be excluded because of this circumstance, and that they must be provided with the necessary supports and reasonable adjustments so that they can exercise their functions. Therefore, the present study analyses both sentences of the new Section 8.5. Regarding the
first one, it is emphasized that no intellectual or cognitive capacity other than literacy —which is also required by article 8— may be demanded to be juror; however, the ability to pay attention during a long period of time, whose lack can occur in people with and without disabilities, could also be considered as a necessary skill to perform the function of juror, included in the «sufficient aptitude» mentioned by Section 8. On the other hand, the reasonable adjustments that should be assigned to persons with disabilities who are appointed as jurors are examined, analyzing in particular the problems raised by those which involve the assistance of a third person, that could put at risk essential aspects of the functioning of juries as secrecy or impartiality.