PART TWO: CONTENT OF COMPREHENSIVE ANTI-DISCRIMINATION LAW PART TWO – III In its general comment No. 1 (2014), the Committee on the Rights of Persons with Disabilities elaborated the meaning of article 12, stating that: “In order to fully recognize ‘universal legal capacity’, whereby all persons, regardless of disability or decision-making skills, inherently possess legal capacity, States parties must abolish denials of legal capacity that are discriminatory on the basis of disability in purpose or effect.”679 The Committee has emphasized that this requirement applies in respect of legal standing and other aspects of court procedure (such as the giving of evidence) that may be applicable in discrimination cases.680 In this regard, the Committee has recommended that States abolish the model of “substitute decision-making” and replace it with a “supported decision-making” alternative, which recognizes the inherent dignity of the individual and is consistent with the concept of equality before the law.681 A number of States have acted on these legal requirements and still more are currently in the process of reforming law and practice in this area.682 For example, in 2018, the Special Rapporteur on the rights of persons with disabilities welcomed legal reforms in Peru as a “milestone” and “an example for all States to follow”.683 Prior to the reforms, judges had the power to declare persons with intellectual or psychosocial disabilities incompetent to take care of themselves or their property and to impose a guardian, under the country’s civil code. The reforms corrected this position, removing restrictions on the rights of persons with disabilities and providing support to them to take their own decisions.684 Broad standing ensures that others can support persons subjected to discrimination to bring a claim in cases in which they may not be able to do so alone or may not wish to do so. It ensures access to justice in situations in which the victims of discrimination are collectives, such as religious communities or indigenous groups. Jurisprudence has also recognized that members of minority groups have standing to challenge incitement directed not at them personally but at a wider group of which they are part.685 There is also increasing recognition that representative groups, such as civil society organizations, should have standing to challenge discrimination.686 These actors may have the necessary knowledge, expertise and funding that will support persons subjected to discrimination. In instances in which such actors bring cases, members of affected communities should be consulted and engaged in the process and due consideration should be given to their views. B. Evidence and proof Discrimination often reflects a power imbalance between parties and the existence of facts that lie – in whole or in part – within the exclusive knowledge of the discriminating actor. The application of the ordinary rules of procedure in such cases, which would place the burden of proving discrimination to an established legal standard (often, on a balance of probabilities) on the discriminated party, is recognized frequently to produce unfair outcomes. Legal rules related to evidence and proof must therefore be adapted to ensure that victims of discrimination are able to obtain redress and enforce their rights. International, regional and national laws governing the right to non-discrimination have evolved a number of modes to enhance the fairness of the procedure to meet this objective. These include provisions for “shifting” the burden of proof, as well as legal 679 Committee on the Rights of Persons with Disabilities, general comment No. 1 (2014), para. 25. 680 See, for instance, Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 49; and general comment No. 1 (2014), paras. 13–14. See also A/HRC/37/25, paras. 4 and 33–34. 681 Committee on the Rights of Persons with Disabilities, general comment No. 1 (2014), paras. 26–29. 682 In a report drafted in 2017, the Special Rapporteur on the rights of persons with disabilities identified law reform processes to advance equal legal capacity in practice in at least 32 countries: Argentina, Australia (New South Wales, Northern Territory and Victoria), Austria, Belgium, Bulgaria, Canada (Alberta), Colombia, Costa Rica, Czechia, Denmark, Georgia, Germany, Hungary, Ireland, Israel, India, Kenya, Latvia, Lithuania, Malta, Marshall Islands, Netherlands, Peru, Portugal, Republic of Moldova, Romania, Russian Federation, Spain (Catalonia), Switzerland, United Kingdom (Northern Ireland), United States (Texas) and Zambia. See A/HRC/37/56, para. 38. 683 Special Rapporteur on the rights of persons with disabilities, “Peru: milestone disability reforms lead the way for other States, says UN expert”, 4 September 2018. Available at www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23501&LangID=E. 684 Ibid. 685 See, for example, Committee on the Elimination of Racial Discrimination, Koptova v. Slovak Republic, communication No. 13/1998, as well as European Court of Human Rights, Behar and Gutman v. Bulgaria, Application No. 29335/13, Judgment, 16 February 2021, paras. 44–48. 686 See, for instance, Committee on the Elimination of Discrimination against Women, Promo-LEX v. Republic of Moldova (CEDAW/C/76/D/105/2016), paras. 6.1–6.10. 93