Lore Mergaerts, PhD researcher Leuven Institute of Criminology, KU Leuven
In recent years, both the European Union (EU) and the Council of Europe (through case law of the European Court of Human Rights (ECtHR)) have given increased attention to the vulnerability of suspects and defendants in criminal proceedings. This is not only crucial for truth finding purposes, but also to ensure the right to a fair trial in national criminal proceedings. In addition, the proper treatment of vulnerable suspects is relevant in the light of the principle of mutual recognition of judgments and judicial decisions, which is the cornerstone of judicial cooperation in criminal matters within the EU, and the mutual trust between Member States that is necessary in this respect. This is also still relevant for the United Kingdom, as judicial cooperation with European member states will still be needed regardless of the Brexit, but also as the United Kingdom remains a member of the Council of Europe. Furthermore, the EU policy on procedural safeguards for (vulnerable) suspects and defendants is strongly inspired by legal provisions for vulnerable suspects in England and Wales (see also Mergaerts & Dehaghani, 2020).
The case law of the ECtHR with respect to a suspect’s vulnerability seems to have developed along two pathways. On the one hand, it is stated that this vulnerability results from the mere involvement in a criminal procedure (Salduz v. Turkey (2008) para 54). On the other hand, certain suspects are to be considered ‘particularly vulnerable’. In this regard, the ECtHR considers as relevant factors: the age and maturity of a suspect, chronic alcoholism and/or an acute alcohol intoxication, a physical disability or medical condition, belonging to a socially disadvantaged group and a mental disorder (see for instance T. v UK(1999), ECtHR para 62, 84-89; Plonka v Poland (2009), ECtHR para 38; Bortnik v Ukraine (2011), ECtHR para 43; Blokhin v Russia (2016), ECtHR para 194 and 199). As such, the case law of the ECtHR points to a number of factors that put a suspect in a ‘(particularly) vulnerable position’ during a criminal procedure, but it does not offer a specific definition nor a description of vulnerability.
At the level of the EU, attention is given to vulnerable suspects in several binding instruments – so-called Directives – aiming at strengthening procedural rights for suspects and defendants in criminal proceedings. These instruments only include a provision that the special needs of vulnerable persons have to be considered by Member States when implementing the Directive (see Directive 2010/64/EU; Directive 2012/13/EU; Directive 2013/48/EU and Directive (EU) 2016/343). There is, however, also a non-binding Recommendation of 27 November 2013, in which the European Commission encourages the Member States to strengthen the procedural rights of so-called vulnerable persons in criminal proceedings and in which a bit more guidance is provided. Whereas the aforementioned instruments actually do not contain a description of what is to be understood by a vulnerable person, the Recommendation does provide a definition, stating that vulnerable persons are ‘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’. However, this definition is not commonly accepted among Member States of the EU. That is precisely the reason why the Commission opted for a non-binding Recommendation for adult vulnerable suspects and defendants (European Commission Proposal for a Directive of the European Parliament and of the Council on Procedural Safeguards for Children Suspected or Accused in Criminal Proceedings, Nov. 27, 2013, COM(2013) 822 final, 3). In contrast, there is a consensus that minors are particularly vulnerable, which resulted in the binding Directive (EU) 2016/800 containing procedural safeguards for children suspected or accused in criminal proceedings. As such, there appears to be an unequal level of attention given to the vulnerability of adult suspects and defendants compared to suspected or accused children (see also Meysman, 2014). Likewise, an unequal level of attention can be observed when comparing the non-binding instrument for vulnerable adult suspects and defendants to (vulnerable) victims, whose minimum rights are also established in a European binding Directive (2012/49/EU) (see also Van der Aa, 2016).
The Recommendation for adult vulnerable suspects and defendants puts forward the prompt identification of vulnerable persons. To assist the police and judicial authorities, they should be able to request the medical examination by an independent expert to identify any vulnerability. In addition, they should receive specific training, but the Recommendation does not contain any further requirements in relation to this training. The Recommendation furthermore stresses the adequate treatment of vulnerable persons by proposing specific rights, such as the right to information; the right of access to a lawyer and the inability to waive this right; the presence of an appropriate adult or legal representative; the audio-visual recording of any questioning; and systematic access to medical assistance whilst being held in custody, which should only be used as a last resort. The scope of these measures and how these should be implemented are, however, not specified within the Recommendation and is open to different interpretations.
As such, it is unsurprising that Member States are struggling to adequately define and deal with so-called vulnerable suspects. Much is left to their discretion, whereas the limited European guidance that is provided is not binding and somewhat vague. Consequently, the way in which vulnerable persons are treated differs between Member States as to the provisions in place – if any are implemented –, the responsibilities for identifying vulnerability and training provided for the police and judicial authorities involved.
As part of my PhD research – besides analysing this European framework and legal psychological research regarding a suspect’s vulnerability – I analysed the attention given to a suspect’s vulnerability in Belgian legislation and policy. A rather limited level of attention is given to a suspect’s vulnerability in the Belgian legislation, with a relative paucity of provisions specifically intended to protect vulnerable suspects. The Belgian legislation and the case law of the Belgian Court of Cassation seem to focus on the vulnerable position of all suspects with a view on the need for the right to assistance by a lawyer during the pre-trial investigation – and the police interview in particular – and less so on vulnerable suspects as referred to in the EU-instruments. The regulations for minors should, however, be applied when an adult person is recognized as being vulnerable, for example because of an intellectual disability. This means that an adult vulnerable suspect should not be able to waive his right to have a lawyer present during police interviews. Furthermore, the language used by the police to inform a person about his rights should be adapted to the person’s ‘age or potential vulnerability which hampers his ability to understand these rights’ (art. 47bis, § 6, 2) Belgian Criminal Procedure Code).
In addition, in Belgium a suspect’s lawyer has also an important role to play and has to assess this vulnerability in the early stages of a pre-trial investigation. However, the early identification of a suspect’s vulnerability by the defence lawyer is by no means easy. Not only does the Belgian regulation remain rather vague with regard to who exactly can be considered vulnerable, defence lawyers themselves also appear to have very divergent views on the scope of a suspect’s vulnerability, ranging from a very broad (“all suspects are vulnerable”) to a very narrow interpretation (“only minors and intellectually disabled suspects are vulnerable”). Moreover, defence lawyers pay attention to the (identification of) vulnerability of suspects only in a rather implicit manner. Readily observable indicators (such as manner of speech and behaviour), experience and human knowledge seem to be the ‘tools’ used to identify that vulnerability instead of standardized or targeted methods or questions to be asked. These results suggest that lawyers have insufficient knowledge of and training about the potential vulnerability of suspects. I came to this conclusion based on a legal-theoretical analysis of the legal possibilities and limitations to identify a suspect’s vulnerability during the pre-trial investigation and an exploratory empirical study, consisting of face-to-face semi-structured interviews with 14 Flemish criminal defence lawyers. Although this sample is relatively small and the results cannot be generalized, it did enable me to get a profound insight into how a suspect’s vulnerability is defined by practising criminal defence lawyers, and how this vulnerability is identified in practice.
In conclusion, as the case of Belgium illustrates, but also the problems raised in the other blogposts regarding the implementation of safeguards for vulnerable suspects in other countries, the European guidance appears to be insufficient to assure (the implementation of) adequate measures for protecting vulnerable suspects in national proceedings. This limited European guidance also only takes into account personal factors rendering an individual vulnerable. Whereas it is good in itself to draw attention to vulnerability resulting from these personal factors, too little attention is paid to the interactive and dynamic nature of vulnerability. Situational factors, inherent to being involved in a criminal investigation (such as the interview techniques used, circumstantial effects of being held in custody etc.) are mostly overlooked and not being taken into account (see also Mergaerts & Dehaghani, 2020). When taking further action (either at a European and/or national level) to enhance the implementation of procedural rights and to improve knowledge among police, judicial authorities and lawyers about vulnerability, both individual and situational risk factors should be taken into account (see also Mergaerts, Van Daele & Vervaeke, 2018).
References
Art. 47bis, § 6, 2) Belgian Criminal Procedure Code.
Blokhin v Russia (2016), ECtHR.
Bortnik v Ukraine (2011), ECtHR.
Directive 2010/64/EU of the European Parliament and of the Council on the right to interpretation and translation in criminal proceedings [2010] OJ L 280/1.
Directive 2012/13/EU of the European Parliament and of the Council on the Right to Information in Criminal Proceedings, OJ L 142/1.
Directive 2012/29/EU of the European Parliament and of the Council Establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, and Replacing Council Framework Decision 2001/220/JHA, Oct. 25, 2012, OJ 2012, L 315/57.
Directive 2013/48/EU of the European Parliament and of the Council on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, OJ L 294/1.
Directive (EU) 2016/343 of the European Parliament and of the Council on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, OJ L 65/1.
Directive (EU) 2016/800 of European Parliament and the Council on procedural safeguards for children who are suspects or accused persons in criminal proceedings, OJ L 132/1.
European Commission Proposal for a Directive of the European Parliament and of the Council on Procedural Safeguards for Children Suspected or Accused in Criminal Proceedings, Nov. 27, 2013, COM(2013) 822 final.
Mergaerts, L., & Dehaghani, R. (2020). Protecting vulnerable suspects in police investigations in Europe: lessons learned from England & Wales and Belgium. New Journal of European Criminal Law. doi: 10.1177/2032284420943299.
Mergaerts, L., Van Daele, D., & Vervaeke, G. (2018). Challenges in defining and identifying a suspect’s vulnerability in criminal proceedings: what’s in a name and who’s to blame? In P. Cooper & L. Hunting (Eds). Access to justice for vulnerable people (pp. 48-71). London: Wildy, Simmonds & Hill Publishing.
Meysman, M. (2014). “Quo Vadis with Vulnerable Defendants in the EU?,” European Criminal Law Review (4), 179-194.
Plonka v Poland (2009), ECtHR.
Salduz v Turkey (2008), ECtHR.
T. v UK(1999), ECtHR.
Van der Aa, S. (2016). “Variable Vulnerabilities? Comparing the Rights of Adult Vulnerable Suspects and Vulnerable Victims under EU Law,” New Journal of European Criminal Law (7), 39-58.
Defending Vulnerability 