Comparing the Rights of Adult Vulnerable Suspects and Vulnerable Victims Under EU Law

Variable vulnerabilities?

Comparing the rights of adult vulnerable suspects and vulnerable victims under EU law

Suzan van der Aa[1]

Summary

EU instruments regulating the rights of adult vulnerable victims and vulnerable suspects differ in their conceptualization of ‘vulnerability’. The Victim Directive mainly focuses on persons who are vulnerable to secondary victimization due to external factors, while vulnerability in the Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings hinges on endogenic factors, such as the suspect’s mental or physical condition. Its aim is to remedy the suspect’s inability to understand and to effectively participate in criminal proceedings. These different conceptualizations have resulted in different guarantees for vulnerable victims and vulnerable suspects. The Recommendation contains provisions that – once adopted in a victims’ rights instrument – could considerably strengthen the current protection of vulnerable victims and vice versa. In order to provide for a more comprehensive protection the EU should embrace both perspectives in its dealings with vulnerable persons, regardless of whether they are victims or suspects.

Key words: victims’ rights; vulnerable victims; vulnerable suspects; criminal proceedings; EU law

Introduction

The position of victims within criminal proceedings has not always been recognized as deserving of dedicated protection.[2] Traditionally, criminal procedural law and human rights law only focused on measures that would guarantee the suspect or accused person a fair trial, with victims being regarded as useful witnesses and informants, but certainly not as persons on an equal (rights) footing with suspects.[3]

It was not until the 1980s that victims’ rights finally managed to gain territory in a field that hitherto had been dominated by law enforcement and defence interests. The coming into force of landmark instruments such as the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power; the 1985 Council of Europe Recommendation on the Position of the Victim in the Framework of Criminal Law and Procedure; and the 2001 EU Framework Decision on the Standing of Victims in Criminal Proceedings marked the beginning of a new era in which victims’ rights became firmly anchored in national, regional, and international legislation.[4]

Initially, the ever-growing body of victims’ rights met with great distrust from the side of the criminal justice establishment. Critics objected that strengthening the procedural standing of victims would automatically lead to the detriment of suspects.[5] They lamented over the time-consuming nature of certain victims’ rights and their incompatibility with the suspect’s right to a fair trial. Another concern was that the increased attention for victims’ rights would shift focus away from the primary goal of the criminal procedure – to pass judgment on the suspect – and that it would lead to inequality of justice, emotional scenes and delays.

Meanwhile, however, the tables seem to have turned. Although many victims’ rights are still auxiliary to those of the suspect,[6] there are also areas in which victims’ rights seem to have surpassed those of suspects, actually placing certain victims, in certain respects, in a privileged position compared to suspects in similar situations. One area in which the balance of rights seems to strike in favour of victims is the area of vulnerability.

Under EU law there is one main instrument dealing with victims in general: Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA (hereafter: Victim Directive).[7] Chapter 4 of the Victim Directive is dedicated to ‘victims with specific protection needs’ and it contains detailed instructions for the Member States on how to protect vulnerable victims from repeat victimization and secondary victimization.[8]

While (vulnerable) victims’ rights are established in an encompassing Directive, similar endeavours to regulate the procedural rights of crime suspects in one EU instrument have failed. As a result, the rights of vulnerable suspects are scattered over various instruments. Although a dedicated instrument was in fact adopted – the European Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings (hereafter: the Recommendation)[9] – specific provisions for vulnerable suspects can also be found in three other EU Directives.[10] These provisions are, however, few in number and most guarantees for vulnerable suspects are contained in the Recommendation.

The difference in the choice of legal instrument already testifies to the unequal consideration paid to the needs of vulnerable victims compared to those of vulnerable suspects. While the Victim Directive places binding obligations on the Member States and sets minimum standards for the Member States to implement into their national jurisdictions, adult vulnerable suspects have to contend themselves with a mere Recommendation: a non-binding soft law instrument setting aspirational rather than enforceable standards.

In addition to the fact that a Recommendation provides a much weaker guarantee for the implementation of its provisions on a national level than a legally binding Directive, there are also substantive differences – differences on the level of the specific provisions – that favour vulnerable victims over vulnerable suspects. Vulnerable victims, for instance, have more elaborate privacy rights and more attention is being paid to their proper treatment during questioning (see paragraph 5).

Nevertheless, there are also aspects in which the Recommendation and the related ‘suspect’ Directives provide more protection to vulnerable suspects than the Victim Directive does to vulnerable victims. Suspects have, for instance, stronger interpretation and translation rights (see paragraph 4). So while it is usually the vulnerable suspect who gets the short end of the stick, the reverse scenario – in which rights are extended to vulnerable suspects but not to vulnerable victims – is also conceivable.

These different guarantees have to do with the fact that the conceptualization of vulnerability in the Recommendation differs from the concept of vulnerability embodied in the Victim Directive. They differ both in terms of the range of persons they aim to protect and in terms of the negative consequences they wish to remedy. When it comes to suspects, factors from within the suspect himself – his personal characteristics – determine whether the Recommendation applies or not. The Victim Directive, on the other hand, mainly focuses on exogenic factors, such as the type or the seriousness of the crime that the victim has suffered. Furthermore, while the Recommendation seeks to remedy the suspect’s diminished ability to effectively follow and understand the criminal procedure, the Victim Directive aims to prevent harm as a consequence of participation in the criminal procedure (secondary victimization).

In this paper, I will defend the position that there has been lopsided attention on the concept of vulnerability in the context of crime victimization, without paying equal regards to vulnerable suspects who – due to special circumstances – ought to be eligible for additional support by criminal justice authorities just the same. Vice versa, the Recommendation contains provisions that – once adopted in a victims’ rights instrument – could considerably strengthen the current protection of vulnerable victims in return.

The paper is structured as follows. In the second paragraph, I will briefly describe the historical background of the rights of vulnerable suspects on the EU level, starting from the Green Paper in 2003 to the Recommendation in 2013. This description shows that the Commission’s ambitions have gradually diminished over the years, and that the conceptualization of vulnerability has changed accordingly. In the third paragraph, an overview of the coming about of EU instruments rights in the field of crime victims is provided. I will show that the definition of vulnerability in the Victim Directive differs from the one used in the Recommendation. The impact that these different perceptions of vulnerability have on the particular rights awarded to vulnerable victims and suspects will be demonstrated by discussing some exemplary rights of suspects (paragraph 4) and of victims (paragraph 5). By comparing the EU instruments for vulnerable victims and suspects, I come to the conclusion that each understanding of vulnerability has its strengths and weaknesses (paragraph 6). In order to provide for a more comprehensive protection the EU should embrace both perspectives in its dealings with vulnerable persons, regardless of whether they are victims or suspects.

Background of EU standards on the procedural rights of vulnerable suspects

2.1. Green Paper on Procedural Safeguards 2003

In 1999, the European Council adopted the Tampere Programme of Measures.[11] This Programme was designed to strengthen the cooperation between Member States and to stimulate the implementation of the principle of mutual recognition in criminal matters, inter alia by enhancing the protection of individual rights of vulnerable suspects.

The European Commission’s first attempt to establish specific procedural rights for vulnerable suspects expressed itself in the form of a Green Paper.[12] In this consultation document, the European Commission proposed a non-exhaustive list of potentially vulnerable groups, explained the underlying rationale for their classification as a vulnerable group, and suggested measures that could compensate for their disadvantaged position in criminal proceedings. The groups that the European Commission had identified as vulnerable were: foreign nationals; children; persons with mental or emotional conditions;[13] persons with physical conditions;[14] persons with children or other people depending on them;[15] persons who cannot read or write; persons with refugee status or other beneficiaries of international protection and asylum seekers; and persons dependent on alcohol or drugs.

The Commission explained for each group the reasons why persons belonging to that particular group were potentially vulnerable. These reasons can broadly be clustered into three categories. The vulnerability of the abovementioned groups relates to the influence their respective conditions could have on:

1) Their cognitive and physical ability to understand the proceedings or to explain their version of the events. Due to, for instance, linguistic disadvantages, hearing or speech impediments, low IQ, or illiteracy, suspects may not be able to comprehend the case against them, hence undermining their effective participation in the procedure and their fair trial rights.

2) Their emotional and volitional ability to make a free and independent choice relating to their conduct over the proceedings. Instead of a tactical evaluation of the evidence collected against them, some suspects may be moved by ulterior reasons for deciding on whether or not to cooperate with police investigations. Parents with young children may, for instance, be more prone to (falsely) confess to the allegations in order to shorten their time in custody and return to the family home as soon as possible, whereas refugees might have an inclination to deny the accusations out of fear of losing refugee status or risk of deportation.

3) Their physical ability to endure interrogation or incapacitation. As a result of their physical or medical condition, certain suspects, such as pregnant women, alcoholics or drug addicts, or persons with health problems that require medication, may not be fit to answer police questions or be kept in custody.

Realizing that the abovementioned categories might not always suffice to fully appreciate a suspect’s disadvantaged disposition, the Commission furthermore drew attention to ECtHR case law holding that the personal situation of the suspect could contain further clues as to his or her vulnerability.[16] So in addition to the category-based assessment of vulnerability, a case may require an additional ‘personal circumstances’ assessment to identify supplementary conditions that render this person even more vulnerable.

2.2. Proposal for a Council Framework Decision 2004

The Green Paper was quickly followed by a Proposal for a Council Framework Decision in 2004. Its aim was to enhance the protection of individual rights and to regulate the procedural rights of suspects on the EU level by formulating common minimum standards in five areas: access to legal representation; access to interpretation and translation; special attention to persons unable to follow the proceedings; consular assistance to foreign detainees; and notification of suspects and defendants of their rights in writing.[17]

By this time, the Commission had abandoned the category-based method of identifying vulnerable suspects proffered in the Green Paper; at least it no longer provided Member States with a tentative list of vulnerable categories. As a result of the replies to the Green Paper, the Commission had come to the conclusion that ‘identifying these suspects is difficult’. Now the Commission relied on law enforcement officers to assess ‘whether the suspect is able to understand or follow the proceedings, by virtue of his age or mental, physical or emotional condition’. Further guidance on how to interpret this rather broad definition was lacking.[18]

Ultimately, the 2004 Framework Decision proved to be the proverbial bridge too far. The Member States were reluctant to give up their autonomy in a field as contentious as procedural rights for suspects. Although the adoption of the Framework Decision was planned for 2005, years of political debate could not bring consensus and the Proposal was finally abandoned in 2007.

2.3. Commission Recommendation 2013

It was only after the coming into force of the Lisbon Treaty in 2009 that the EU started to pursue its ambitions for the establishment of minimum procedural rights again and an alternative pathway was presented in the form of a Roadmap containing individual measures.[19] In its Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, the Council identified six priority areas of fundamental rights (so-called ‘measures’) and invited the Commission to submit proposals aimed to implement these measures.[20] The six measures were: (A) Translation and interpretation; (B) Information on rights and information about the charges; (C) Legal advice and legal aid; (D) Communication with relatives, employers and consular authorities; (E) Special safeguards for suspected or accused persons who are vulnerable; and (F) A green paper on pre-trial detention.

Measure E – on the need for special safeguards for suspected or accused persons that are vulnerable – has recently lead to the coming about of two proposals: 1) a proposal for a Directive on procedural safeguards for children suspected or accused in criminal proceedings and 2) a Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings. Next to these two instruments, which are dedicated to vulnerable suspects, some specific provisions for vulnerable suspects can also be found in the three Directives that resulted out of the first four measures.[21]

The choice for a Recommendation reveals that the Commission has significantly lowered its ambitions compared to the Proposal for a Framework Decision that was withdrawn a couple of years before. First, being a ‘soft law’ instrument, the Recommendation leaves much more discretion to the Member States on whether or not to follow up on its provisions. In this respect, the legally binding Framework Decision would have made a far stronger guarantee for the actual transposal of the procedural rights on the domestic level. Now the Commission only announces an evaluation of the effectiveness of the Recommendation after four years, based on which further legislative action might ensue.[22]

The rationale behind the choice for a non-binding instrument is explained in the Executive Summary of the Recommendation’s Impact Assessment.[23] According to the Commission, the fact that the group of vulnerable suspects and the scope of application are difficult to delineate and the fact that there are fewer international standards for vulnerable suspects excludes the possibility of introducing binding legislation.[24] This is a rather unconvincing line of reasoning,[25] especially since similar problems have not withheld the Commission from initiating legally binding action in the field of (vulnerable) crime victimization, as will be explained below.

When it comes to the conceptualization of vulnerability, the Recommendation defines as vulnerable ‘persons who are not able to understand and to effectively participate in criminal proceedings, due to age, their mental or physical condition or disabilities’ (Recital 1). Recommendation 7 on the ‘presumption of vulnerability’ further pinpoints the following categories as likely to experience difficulties in following criminal proceedings: ‘persons with serious psychological, intellectual, physical or sensory impairments, or mental illness or cognitive disorders’. It furthermore stresses that the identification of vulnerability can be difficult, and that such an assessment needs to take place on the individual level. Despite the fact that this individual assessment could take into account other factors as well, the vulnerabilities covered by the Recommendation mainly see to internal factors, factors inherent to the person of the suspect, that form a problem. These vulnerabilities could seriously affect a suspect’s fair trial rights and result in a miscarriage of justice. The goal of the Recommendation is therefore to restore the imbalance and make sure that these vulnerable suspects are enabled to genuinely understand and participate in criminal proceedings.

The substantive reading furthermore shows moderated aspirations when it comes to the range of persons who qualify as vulnerable. Recital 1 clarifies that the Recommendation applies to ‘all suspects or accused persons who are not able to understand and to effectively participate in criminal proceedings due to age, their mental or physical condition or disabilities (‘vulnerable persons’)’. This definition closely resembles the one articulated in the 2004 draft Framework Decision apart from one element: suspects whose understanding of the proceedings is hampered because of their emotional condition have been removed.[26]

Overall, it is fair to conclude that the road towards EU standards in the field of procedural rights for vulnerable suspects has not been an easy one. Succumbing to political pressure, the EC has had to settle for a non-binding instrument, and the emotionally vulnerable suspects suddenly disappeared as well. Despite these compromises, the Recommendation and the procedural rights in the three Directives still contain important communication safeguards for vulnerable suspects, communication safeguards that are stronger than the ones accorded to vulnerable victims. Before I will elaborate on these communication provisions in paragraph 4, I will first discuss the general EU framework applicable to vulnerable victims.