Variable vulnerabilities?

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

Suzan van der Aa*

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

1. Introduction

The position of victims within criminal proceedings has not always been recognized as deserving of dedicated protection.† 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.‡

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

* Suzan van der Aa, Ph.D., is an assistant professor at the International Victimology Institute Tilburg (INTERVICT), Tilburg University, the Netherlands. † See, for instance, M.S. Groenhuijsen & R.M. Letschert, ‘Legal reform on behalf of victims of crime: The primacy of the Dutch legislature in a changing international environment’, SSRN, TLS Research Paper no 02/2011, 2010. ‡ For the sake of readability, I will not use the phrase ‘suspect or accused person’ throughout this paper. Instead, I will use the term ‘suspect’ to refer to both categories of legal subjects simultaneously.

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Victims in Criminal Proceedings marked the beginning of a new era in which victims’ rights became firmly anchored in national, regional, and international legislation.§

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.** 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,†† 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).‡‡ 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.§§

§ UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res. 40/34 of 29 November 1985; Council of Europe Recommendation (1985)11 on the Position of the Victim in the Framework of Criminal Law and Procedure of 28 June 1985; EU Council Framework Decision on the Standing of Victims in Criminal Proceedings (2001/220/JHA) of 15 March 2001. ** In the case of the Netherlands, for instance, objections were raised by prominent criminal lawyers, such as: Y. Buruma, De aandacht van de strafrechter (inaugural address Nijmegen), Arnhem: Gouda Quint 1996; W. Reehuis, Schadevergoeding in het strafproces (inaugural address Groningen), Deventer: Kluwer 1992; and F. Fernhout & T. Spronken, ‘Spreekrecht voor slachtoffers, aspirientjes voor de rest’, NJB (3) 2005, 150-156. Although to date the rights of victims are firmly established within the Dutch criminal law system, occasionally old concerns resurface and objections against (the expansion of) victims’ rights are reiterated in the media. †† For an evident example of victims’ rights being trumped by those of the defendant see, for instance, Article 6(6) of the EU Victim Directive (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 (OJ L315 25.10.2012). Article 6(6) stipulates that victims at least have the right to be notified of the suspects’ escape or release from detention in cases where this release or escape represents a threat to them, ‘unless there is an identified risk of harm to the offender which would result from the notification’. In other words, when the release constitutes a threat to both the victim and (upon notification) the suspect, preference is given to the safety of the suspect. ‡‡ OJ L315 25.10.2012.§§ Secondary victimization relates to the ‘negative social or societal reaction in consequence of the primary victimization and is experienced as further violation of legitimate rights or entitlements by the victim’ (L. Montada, ‘Injustice in harm and loss’, Societal Justice Research, 7(1), 1994, p. 5-28 in U. Orth, ‘Secondary victimization of crime victims by criminal proceedings’, Social Justice Research (15), 2002, p. 313-325, on p. 314).

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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)*** – specific provisions for vulnerable suspects can also be found in three other EU Directives. ††† 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

*** OJ C378/8 27.11.2013. For child suspects, however, a proposal for a Directive has been published (Proposal for a Directive of the European Parliament and of the Council on procedural safeguards for children suspected or accused in criminal proceedings, COM (2013) 822 final). In this paper, however, I will only focus on adult suspects and victims, given that the disparities between the different protective instruments are largest for adults. ††† These three instruments are: Directive 2010/64/EU of the European Parliament and the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ 2010 L/280), Directive 2012/12/EU of the European Parliament and the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L/142), Directive 2013/48/EU of the European Parliament and the Council of 22 October 2013 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 2013 L294).

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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.

2. 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.‡‡‡ 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.§§§ 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

‡‡‡ Programme of measures to implement the principle of mutual recognition of decisions in criminal matters, OJ 15.01.2001, C12/10.§§§ European Commission Green Paper on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union. Brussels: COM(2003)final, 2004.

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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;**** persons with physical conditions;†††† persons with children or other people depending on them;‡‡‡‡ 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. §§§§ 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.

**** The Commission mentioned as examples: persons who are mentally handicapped, suffer from a psychiatric condition such as schizophrenia, persons of subnormal IQ, low reading age or poor understanding and persons with a disability on the autistic spectrum. †††† Examples provided by the Commission were persons who are deaf or have speech impediments. Persons with HIV/AIDS, persons who suffer from diabetes, epilepsy, or persons having a pacemaker, and pregnant women were also mentioned. ‡‡‡‡ The Commission highlighted the example of ‘pregnant women and mothers of young children, especially single mothers, and, where the father has sole charge of young children, single fathers’. §§§§ Quaranta v Switzerland, judgment of 24 May 1991, Series A no 25.

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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.*****

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.†††††

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. ‡‡‡‡‡ 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.§§§§§ 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

***** Proposal of 28 April 2004 for a Council Framework Decision on certain procedural rights in criminal proceedings throughout the European Union, COM (2004) 328 final.††††† The sparse examples that the Commission used to clarify what groups are vulnerable relate to children and persons in need of medical attention (see Proposed Framework Decision consideration 41). ‡‡‡‡‡ Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (OJ C306/01 17.12.2007). §§§§§ Council of the European Union Resolution of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (OJ 2009/C 295/1, 30.11.2009).

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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.******

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.††††††

The rationale behind the choice for a non-binding instrument is explained in the Executive Summary of the Recommendation’s Impact Assessment.‡‡‡‡‡‡ 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.§§§§§§ This is a rather unconvincing line of reasoning,******* 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

****** Directive 2010/64/EU of the European Parliament and the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ 2010 L/280), Directive 2012/12/EU of the European Parliament and the Council of 22 May 2012 on the right to information in criminal proceedings (OJ 2012 L/142), Directive 2013/48/EU of the European Parliament and the Council of 22 October 2013 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 2013 L294). †††††† European Commission Communication of 27 November 2013 from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, Making progress on the European Union Agenda on Procedural Safeguards for Suspects or Accused Persons – Strengthening the Foundation of the European Area of Criminal Justice (COM(2013) 820 final). ‡‡‡‡‡‡ European Commission Staff working document executive summary of the Impact Assessment accompanying the Proposal for Measures on special safeguards for children and vulnerable adults suspected or accused in criminal proceedings of 27 November 2013 (SWD(2013) 481 final).§§§§§§ See European Commission Staff working document (2013), p. 7. ******* In a similar vein, see M. Meysman, ‘Quo vadis with vulnerable defendants in the EU? A closer look at the recent initiatives for procedural safeguards for vulnerable suspects and offenders. The equivocality of the Union’s approach effectuating Measure E and the need for an adequate policy towards mentally impaired defendants’, European Criminal Law Review 4(2), 2014, p. 179-194.

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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.†††††††

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.

3. Background of EU standards on the procedural rights of vulnerable victims

3.1. The 2001 Framework Decision on the standing of victims in criminal proceedings

An important milestone in the history of victims’ rights was the coming into force of the 2001 Framework Decision on the standing of victims in criminal proceedings.‡‡‡‡‡‡‡ For the first time, a legally binding instrument was adopted at the EU level, containing a comprehensive set of minimum rights for crime victims in general.

Still the subject of vulnerable victims did not feature as prominently in the Framework Decision as it would in its successor, the Victim Directive. The most important provision in this respect, Article 1(2) of the Framework Decision, only stipulated that ‘victims who are particularly vulnerable can benefit from specific treatment best suited to their circumstances’. Because the Framework Decision did not breathe

††††††† If we compare the current definition to the three vulnerability categories of the Green Paper (see paragraph 2.1), the Commission seems to have abolished the second category of emotional and volatile vulnerabilities. In contrast, the Victim Directive does take the emotionally vulnerable into consideration. ‡‡‡‡‡‡‡ Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings, OJ 22.03.2001, L82/1.

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a word on the manner in which the term ‘vulnerable victim’ needed to be interpreted, this left ample room for discretion for the Member States.§§§§§§§

In relation to communication safeguards, however, the Framework Decision did contain an important provision. Article 5 Framework Decision required Member States to give victims with the status of witnesses or parties measures to minimize communication difficulties hampering their understanding of the proceedings. These measures should be provided to an extent ‘comparable with the measures of this type which it takes in respect of defendants’.

3.2. The 2012 Victim Directive

In 2012, under the influence of the Lisbon Treaty, the 2001 Victim Framework Decision was eventually replaced by the Victim Directive. On this occasion, many of the rights in the Framework Decision were revised in order to bring them up to par with new insights from evaluation reports and victimological studies.

The legislative overhaul was also used to update and expand the rights for vulnerable victims. Chapter 4 of the Victim Directive is dedicated to the ‘protection of victims and recognition of victims with specific protection needs'. The provisions stipulated therein aim to protect victims who participate in the criminal procedure from ‘secondary and repeat victimization, from intimidation and from retaliation’. To this end, all victims – not just vulnerable ones – are granted the generic right to protection (art. 18), the right to avoid contact between victim and offender (art. 19), the right to protection of victims during criminal investigations (art. 20), and the right to protection of privacy (art. 21).

In addition, victims who are particularly vulnerable to ‘secondary and repeat victimization, to intimidation and retaliation’ are provided with special protection rights, such as the right to be interviewed in special interviewing premises, by trained interviewers. In the case of sexual violence, gender based violence or violence in close relationships, the victim can furthermore request these interviewers to be of the same sex as the victim (art. 23(2)). During court proceedings, victims are also granted measures to avoid visual contact between them and the offender, to being heard without being physically present, to avoid unnecessary questioning, and to a trial in camera (art. 23(3)).********

Whether a victim is vulnerable in terms of the Victim Directive depends on the outcome of an individual assessment in which (a) the victim’s personal characteristics; (b) the type and nature; and (c) the circumstances of the crime are taken into account (article 22 (2) Victim Directive). However, although the Victim Directive includes the victim’s personal characteristics in the individual analysis, further examination shows that it is mostly exogenic factors that determine whether adult victims classify as vulnerable. This conclusion can first of all be drawn from the fact that the list of victims more or less

§§§§§§§ Something that has been criticized in literature. See, for instance, S. van der Aa, R. van Merriënboer, A. Pemberton, J. Lázaro, C. Rasquete, C. Amaral, F. Marques & M. Pita, Project Victims in Europe: Implementation of the EU Framework Decision on the standing of victims in the criminal proceedings in the Member States of the European Union, Lisbon: APAV 2009, p. 38. The same goes for Article 8(4) Victim Framework Decision that refers to vulnerable victims without providing further clarification either. ******** Naturally, these rights can only be effectuated if they do not jeopardize the rights of the defendant and the due course of the procedure.

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earmarked as vulnerable in article 22(3) Victim Directive†††††††† almost exclusively consists of victims who are vulnerable due to the type and seriousness of the crime they have suffered (severe crimes, hate crimes, crimes of interpersonal violence, terrorist crimes). Only at the end of the list are ‘victims with disabilities’ mentioned. These disabilities, however, are not linked to the victims’ (in)ability to follow proceeding. Only disabilities that affect the victim’s susceptibility to ‘secondary and repeat victimization, to intimidation and to retaliation’ are relevant here.‡‡‡‡‡‡‡‡

In the context of the Victim Directive, secondary victimization means the phenomenon of renewed victimization due to an inadequate response to the primary act of victimization by the criminal justice system. Because of insensitive questioning, aggressive cross-examination, compulsory confrontations with the offender, long waiting periods, and lack of information on their specific case, some victims reckon that they suffer even more from their participation in the criminal proceedings than from the original victimization itself. It is precisely this type of derivative harm that the Victim Directive wants to diminish.

This does not mean that the Victim Directive does not pay attention to the victims’ cognitive and physical incapacities altogether. In fact, the Victim Directive alludes on various occasions to intellectual, cognitive and physical characteristics that could negatively impact the victim’s ability to follow the proceedings or to participate in them. Recital 21 of the Victim Directive, for example, prescribes that in the light of the right to understand and be understood, Member States should pay attention to the victims’ ‘age, maturity, intellectual and emotional capacity, literacy and mental or physical impairments’.

Reference to similar impairments is also made in Recital 9 and Recital 15. The latter is a sort of blanket recommendation, meant to ensure that disabilities of the victim are considered in relation to all the rights articulated in the Directive:

In applying this Directive, Member States should ensure that victims with disabilities are able to benefit fully from the rights set out in this Directive, on an equal basis with others, including by facilitating the accessibility to premises where criminal proceedings are conducted and access to information.

The problem is that this type of vulnerability and its link to the inability to understand proceedings is not articulated in the main body of the text, indicating a lower priority. This impression is substantiated by the fact that Member States are also deprived of further instructions on how to cater for the particular needs of these vulnerable persons and to make sure that they are capable of understanding the procedure and exercise their rights. In other words, there are no tailored minimum rights for this

†††††††† Victims mentioned there are not per definition vulnerable – that always depends on the outcome of the individual assessment – but ‘particular attention’ should be paid to them. ‡‡‡‡‡‡‡‡ In other words, the disabilities-assessment in Article 22 Victim Directive mostly functions as a gateway to protection rights that have little to do with communication safeguards. Of course, one could argue that failure to follow the proceedings or to make oneself understood is connected to a higher risk of secondary victimization. Still, if you look at the corresponding measures offered to vulnerable victims, the impression remains that it is a different kind of vulnerability that the Directive seeks to address. Only the right to be interviewed by trained professionals (article 23(2)(b) Victim Directive) could have an effect on the victim’s ability to make himself understood.

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particular type of victim. Clearly, vulnerability as the inability to follow proceedings because of endogenic impairments does not lie at the heart of the Victim Directive.

The differences between the concept of vulnerability in the Victim Directive and that of the Recommendation can be visualized as follows:

4. Strength of the rights of vulnerable suspects: emphasis on communication safeguards

4.1. Right to interpretation and translation

As a result of their preoccupation with the suspect’s (in)ability to understand proceedings, the Recommendation and the related Directives on procedural rights for suspects place great emphasis on communication safeguards. The first example to illustrate this concerns the right to interpretation and translation.

The provisions governing the suspects’ right to interpretation and translation are more elaborate and contain more guarantees than the ones included in the EU Victim Directive. First, because the right to translation and interpretation of victims is dependent on victims making a request thereto (articles 7(1), 7(3), 7(4), 7(5) Victim Directive), whereas in the case of suspects, it is the authorities that have to verify their ability to follow proceedings (article 2(4) Interpretation and Translation Directive). §§§§§§§§ When these abilities are weighed and found wanting, the authorities have to provide for interpretation on their own motion, without prior application from the side of the suspect (article 2(1) Interpretation and Translation Directive). So while the Victim Directive allows judicial authorities to passively await the victim’s initiative, with suspects, they have to act proactively and ex officio identify the ones who may require additional help in this respect.

§§§§§§§§ Relevant in this respect are also the cases Brozicek v Italy A 167 (1989) 12 EHRR 371; and Cuscani v United Kingdom 36 EHRR 2 in which the ECtHR established that the burden of proof is on the authorities to prove that the defendant sufficiently understands the language of the court.

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2013 RecommendationCause of vulnerability:

endogenic factors

Negative consequence it seeks to remedy:

inability to understand proceedings

2012 Victim DirectiveCause of vulnerability:

(mostly) exogenic factors

Negative consequences it seeks to remedy:

secondary victimisation

Secondly, although the right of victims to challenge a decision not to provide interpretation or translation (article 7(7) Victim Directive) is comparable to that of suspects, the latter group also has the exclusive possibility to complain about the quality of the interpretation (article 2(5) Interpretation and Translation Directive). When the interpretation or translation is inadequate, to the extent that it endangers the right to a fair trial, suspects have the possibility to replace the incompetent interpreter (Preamble Translation Directive consideration 26). Moreover, in the case of suspects, the Member States even have a duty to make sure that certain quality standards are met, for instance, by establishing a register of qualified translators and interpreters (article 5 Interpretation and Translation Directive). In the Victim Directive, quality issues do not feature anywhere.

References to recordkeeping of the fact that the services of a translator or interpreter has been used (article 7 Interpretation and Translation Directive) or of the fact that the interpretation or translation should be provided ‘without undue delay’ (article 2(1) Interpretation and Translation Directive) are lacking in the Victim Directive as well. In addition, the suspect can only waive his rights to translation of essential documents after he has received legal advice or has otherwise become aware of the negative consequences of this waiver (article 3(8) Interpretation and Translation Directive). Again, there is no such stipulation in the Victim Directive.

4.2. Advise to inform a legal representative or other appropriate adult

Another substantial difference between the rights of vulnerable victims and vulnerable suspects is the fact that in the case of vulnerable suspects, the Member States are ‘strongly advised, if necessary’, to notify a legal representative or another appropriate adult of the criminal proceedings, the nature of the accusation, the procedural rights and available remedies (Preamble consideration 10 and Recommendation 9).*********

Although this recommendation is only advisory in nature, the fact that the Victim Directive does not contain a similar provision is an important omission. For these third parties could be invaluable for impaired victims too in helping them navigate their way through the criminal procedure and to pursue their interests in the best way possible. Just as we cannot expect certain suspects to fully understand and exercise their rights without proper guidance, victims with similar impairments are likely to encounter difficulties just the same.

Will a victim with a low IQ, for example, be able to fully appreciate the consequences of waiving his right to join the criminal proceedings with a claim for compensation or the risks that may be involved in participation in a restorative justice trajectory? Will this person genuinely understand the information that is provided to him in the context of article 4 of the Victim Directive or realize that he can have a decision not to prosecute reviewed? Especially now that many of the rights in the Victim Directive can only be activated by the explicit request of the victim or by means of a victim initiated (review) procedure, effective support from a legal representative or other adult is pivotal. Its absence can seriously hamper vulnerable victims’ access to justice. ********* The term ‘appropriate adult’ is defined in the Recommendation as ‘a relative or a person with a social relationship with the vulnerable person who is likely to interact with the authorities and to enable the vulnerable person to exercise his or her procedural rights’ (Preamble consideration 9).

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Now critics might argue that the Victim Directive contains sufficient alternative rights to remedy the absence of a duty to notify a legal representative or other appropriate adult. Even though the Directive does not provide for this specific right, surely there are plenty of other safeguards, such as the right to legal aid or the right to access to victim support services, to fill this lacuna?

The answer to that is that the right to legal aid (article 13 Victim Directive) cannot make up for this omission, at least not for all vulnerable victims, since this right is limited to victims who are parties to the proceedings. In addition, national legislation may contain even more conditions for victims to qualify for legal aid, such as a financial means test.

The right to access to victim support services (art. 8 Victim Directive) is no accurate substitute for the notification of a legal representative or other appropriate adult either, because Member States have a margin of appreciation when it comes to granting access to victim support services. The guaranteed access to victim support services in article 8(1) Victim Directive is made contingent on the victim’s need for such services – victims have access ‘in accordance with their needs’ – but Member States are free to determine which exact needs ‘unlock the gateway’ to support services and how such needs are assessed in practice.††††††††† If Member States choose to interpret this provision narrowly, and only assess victims’ needs marginally, many victims will be deprived of victim support services.

More importantly, since access to victim support is a consent-based right, requiring the voluntary permission and cooperation of the victim, vulnerable persons may decline such help because of their inability to appreciate the usefulness of having a victim support person ‘fight their case’. Paradoxically, those who require the services of victim support organizations most, might be the ones who end up being serviced least, precisely because of their intellectual and mental impairments. For chances are that many mentally and intellectually challenged victims will not follow up on referrals by the judicial authorities to victim support organizations, especially if the victims are expected to initiate contact themselves.‡‡‡‡‡‡‡‡‡

A final reason why access to victim support services is no real alternative to the notification of a legal representative or an appropriate adult, is that the latter is bound to be more familiar with the particular vulnerabilities of this specific person and is in a better position to determine what actions are in this person’s best interest than a person working for a victim support organization. With respect to the fantastic work that the victim support volunteers are doing every day, and with full regard to their added value in addition to the work of the ‘appropriate adult’, they could never replace the support of a person who is intimately acquainted with the victim and with his or her particular disabilities and needs personally. Victim support services are valuable in addition to the notification, but it cannot serve as a full alternative.

††††††††† See also DG Justice Guidance Document, p. 24.‡‡‡‡‡‡‡‡‡ In that sense, proactive forms of providing victim support services are much better. In some Member States, the police ask the victim whether he objects to his contact details being forwarded to the national victim support organization. After a couple of days, the support organization will contact the victim, assess his needs, and offer appropriate services without this victim having to take the initiative. This, unfortunately, is not standing practice in all European Member States.

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5. Strength of the rights of vulnerable victims: emphasis on prevention of derivative harm

5.1. The right to protection of privacy

While there are situations in which vulnerable suspects’ rights are superior to those of vulnerable victims, the overall picture is that vulnerable suspects are generally worse off when it comes to their specific protection needs. One area in which (vulnerable) victims’ interests are evidently better protected is the area of protection of privacy. Article 21(1) of the Victim Directive not only stipulates in general that ‘appropriate measures’ should be taken to protect the victim’s privacy, but it also provides more detailed instructions on what is meant by ‘privacy’ and what particular measures could be helpful in protecting it.

‘Privacy’ under the Victim Directive refers to the ‘personal characteristics of the victim (…) and images of victims and of their family members’ (art. 21(1) Victim Directive). These ‘personal characteristics’ are explained with the help of an elaborate list of idiosyncratic features that the competent authorities are advised to shield from the public eye. They include the victim’s age, gender, gender identity or expression, ethnicity, race, religion, sexual orientation, health, disability, residence status, communication difficulties, relationship to or dependence on the offender and previous experience of crime (Preamble Consideration 56 Victim Directive). The protection of privacy also encompasses images and the privacy of the victim’s family members.§§§§§§§§§

The Directive furthermore explains the specific protective measures that should be implemented to protect the victim’s privacy: Member States should allow criminal justice authorities to take privacy issues into account (article 21(1) Victim Directive) and they should encourage the media to take self-regulatory measures (article 21(2) Victim Directive). Another relevant privacy measure, one that is only prescribed for vulnerable victims, is the possibility of having a trial hearing without the presence of an audience (article 23(3)(d) Victim Directive).

The DG Justice Guidance Document elaborates these rights even further and asks Member States to consider adopting disclosure regulations, to criminalize violations of privacy rules, to prevent certain materials to come into the possession of the suspect, to guide justice professionals in their encounters with the media, and to allow judicial authorities to restrict recordings of courtroom sessions.**********

Taken together, all these provisions and explanatory texts give the Member States ample guidance in how to protect victims’ privacy. In contrast, the Recommendation only proposes that ‘[c]ompetent authorities should take appropriate measures to protect the privacy, personal integrity and personal

§§§§§§§§§ This latter extension was included in the Directive, because an evaluation of its predecessor, the 2001 Victim Framework Decision, had shown that although Member States had taken measures to protect the victim’s privacy, the protection of the privacy of his or her relatives had been neglected (see Guidance Document, p. 43).********** DG Justice Guidance Document of December 2013, related to the transposition and implementation of 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, p. 43.

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data of vulnerable persons, including medical data, throughout the criminal proceedings’ (Recommendation 15).

The juxtaposition of the victims’ and suspects’ privacy rights brings several differences to light. First, there is the fact that for suspects, the right to protection of privacy is reserved to vulnerable suspects only and is not applicable to the entire population of suspects. With the exception of the measures relating to a trial in camera, the privacy rights in the Victim Directive are inclusive of all victims. It is unclear why protection of privacy in the case of suspects is made contingent on their vulnerability.

Another discrepancy is that the Recommendation also lacks instruction on whose privacy needs protection – only the suspect’s or also his relatives – what characteristics should be protected from publicity – gender, age, ethnicity, other – and what specific measures might help in protecting the suspect’s privacy. In comparison with the detailed information in the Victim Directive, the privacy provision of the EC Recommendation gives marginal guidance and its abstract wording can mean anything or nothing.

In relation to the protection of a suspect’s privacy and prejudicial reporting by the media, the European Member States harbour a variance of practices. While some Member States readily release the full names of suspects, especially once they are charged (e.g., UK), others try to keep this information private as much as possible, even after a conviction (e.g., the Netherlands). Clearly, the protection of a suspect’s privacy is a sensitive topic,†††††††††† which is probably why the EC decided not to set the bar too high by including all suspects or by prescribing too detailed recommendations. At the moment, however, no bar has been set at all.

5.2. Rights regarding interactions with criminal justice authorities

Characteristic of the Victim Directive is furthermore its emphasis on a humane and respectful treatment of victims during police interviews and at later stages of the criminal procedure. In particular the articles 20 and 23 of the Directive provide important guidelines that aim to prevent unnecessary distress in victims involved in criminal proceedings. The idea is to make the interactions with the criminal justice authorities as unobtrusive as possible in order to prevent further trauma.

Article 20 Victim Directive lays down rules regarding the timing of the interviews of victims (‘without unjustified delay after the complaint’) and the persons who can accompany victims during these interviews (‘their legal representative and a person of their choice, unless a reasoned decision has been made to the contrary’) (art. 20(a) and 20(c) Victim Directive). It also prescribes that the number of interviews and the number of medical examinations should be ‘kept to a minimum’ and should only be carried out ‘where strictly necessary for the purposes of the criminal investigation’ (art. 20(b) and 20(d) Victim Directive).

†††††††††† See, for instance, L. Campbell, ‘Criminal labels, the European Convention on Human Rights and the presumption of innocence’, The Modern Law Review (76), 2013, 681-707.

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These provisions mean a significant improvement of the procedural position of victims, necessitating significant legislative and policy changes on the level of the Member States.‡‡‡‡‡‡‡‡‡‡ Once implemented, victims have the right to be supported during interviews, not by one, but by two persons simultaneously, namely a legal representative and a trusted person of their own choice. Furthermore, the Directive and the accompanying Guidance Document suggest that these persons are allowed to be present in the same room where the victim is being interviewed, and that the presence of a trusted person can only be limited in unusual situations.§§§§§§§§§§

Another right that certain victims have in their interactions with criminal justice authorities is the right to be interviewed by the same person and – if they wish – to be interviewed by a person of the same sex (art. 23(2)(c) and (d) Victim Directive).*********** This latter right is only available for victims of sexual violence, gender-based violence or violence in close relationships. During the trial, criminal justice officials should furthermore abstain from asking questions concerning the victim’s private life that are not related to the criminal offence (art. 23 (3)(c) Victim Directive).

With the exception of the presence of a legal representative during police questioning, ††††††††††† privileges for suspects corresponding to the rights embodied in article 20 and 23 Victim Directive do not exist. One searches in vain for a clause that recognizes the detrimental impact that insensitive questioning can have on the psychological well-being of the suspect and therefore instructs the authorities to keep the number of interviews to a minimum. Likewise, persons suspected of having committed a crime will generally have to cope without the moral support of a trusted person during police questioning ‡‡‡‡‡‡‡‡‡‡‡ and their desires as to the sex of the police officer conducting the interview are irrelevant as well.

Still, the police interview can be highly taxing for suspects just the same, and can have an equally lasting and negative impact on them. The structural neglect of the suspects’ ‘interactional needs’ could be very harmful and unwarranted, especially in the case of false accusations.

‡‡‡‡‡‡‡‡‡‡ It means, for example, that the Dutch policy of categorical exclusion of trusted persons during interviews of victims of sexual crimes needs to be revised. §§§§§§§§§§ The DG Justice Guidance Document lends further strength to article 20(c) Victim Directive by providing a narrow interpretation of the discretionary powers of authorities to prohibit a trusted person from accompanying the victim during interviews. According to the EC, the right to bring along a person for moral support can only be curtailed ‘in exceptional circumstances’ and only ‘in relation to a specific person’. Should the authorities indeed decide to refuse a person access, then they have to allow the victim to bring along another person instead.*********** Naturally, these rights can only be exercised if they do not affect the good administration of justice. ††††††††††† Now ever since the case of Salduz v. Turkey and related judgments of the European Court of Human Rights the right to have a lawyer present during police interrogations has been more firmly secured for suspects as well. Although the case initially gave rise to debate on whether or not a right to consult with one’s lawyer prior to the police interview would meet the Court’s requirements, lately there has been increasing consensus on the interpretation that the suspect should actually be able to be accompanied by his lawyer during the interrogation. ‡‡‡‡‡‡‡‡‡‡‡ Only in the case of ‘vulnerable suspects’ is an ‘appropriate adult’ chosen by the suspect allowed to assist him, but only as an alternative to a legal representative and this adult is not necessarily guaranteed access to the interrogation room. The Recommendation merely prescribes that ‘that person should be present at the police station and during court hearings’ [emphasis SvdA], meaning that Member States who allow this person to sit in the waiting room while the police question the vulnerable suspect in another room are in compliance with the Recommendation.

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6. Conclusion

We have seen that the foci of the EU victims’ and suspects’ rights instruments vary. While the Recommendation and the related ‘suspects’ Directives regard endogenic features, such as a person’s cognitive, physical and intellectual disabilities, as indicators for vulnerability, because these disabilities could hamper their understanding of the criminal procedure, the Victim Directive mainly conceptualizes vulnerability on the basis of exogenic factors that have an influence on a person’s susceptibility to secondary victimization.

These different conceptions of vulnerability have resulted in the establishment of different rights for vulnerable suspects and vulnerable victims. Although the Victim Directive acknowledges the difficulties that cognitively, physically and intellectually challenged victims face, this acknowledgement has not resulted in concrete measures to counterbalance their disadvantaged position. Instead, the Victim Directive has emphasized the protection against derivative harm, as demonstrated by the analysis of the right to privacy and several interactional rights.

Conversely, the Recommendation does not touch upon the negative psychological impact that the criminal procedure could have on suspects. Neither the proper treatment of the suspect, nor his right to privacy is of real concern within the terms of this measure. It does, however, provide stronger communication safeguards, as was shown by the examination of the right to interpretation and translation, and the advice to inform a legal representative or other adult. More (detailed) guidance is provided to make sure that the suspect can follow the proceedings, understand his rights and participate in a meaningful way.

Still, the different concepts of vulnerability are important for victims and suspects alike. §§§§§§§§§§§ The safeguards against secondary victimization were primarily developed with crime victims in mind, but they could be equally beneficial and legitimate for persons suspected of having committed crimes. Especially at the stage when these rights come into play – pre-trial and during trial – there is no certainty of the guilt and criminal liability of suspects. They are still under the presumption of innocence and the possibility that they are truly innocent should be duly considered. This presumption sits uneasily with the fact that little attention is paid to the respectful treatment of suspects in criminal proceedings and that harm as a result of their involvement in these proceedings is taken for granted. The right to a fair trial should be more than a mere guarantee that the suspect can give a reliable statement. ************ Vice

§§§§§§§§§§§ In the case of the right to privacy, for instance, the possibility to have certain private characteristics protected is (arguably) even more important for defendants than for victims. Despite the fact that victims often suffer from negative societal responses as a result of their victimization, one can safely assume that whatever reactions victims are confronted with, the attitude towards victims will generally be more positive than that towards suspects of crime. Suspects are likely to suffer from stigmatization, social exclusion, and hostility to an even greater extent, even if the allegations do not result in a conviction. This is particularly salient in the case of sexual crimes.************ Regardless of whether the allegations were false or not, one could argue that suspects should always be protected as much as possible against derivative harm. Only once the guilt and criminal liability of the defendant have been established, can he be subjected to retributive measures or measures with retributive effects. Until then, he should be treated with caution and with due consideration of the effect his participation in the procedure might have on his (psychological) well-being.

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versa, victims could greatly profit from clearer instructions aimed at harmonizing procedural safeguards that address communication difficulties of victims with intellectual, mental or physical impairments. If the EU genuinely wishes to take vulnerable persons and their needs seriously, it needs to adopt measures that cover both perspectives on vulnerability and bring the rights of vulnerable victims and vulnerable suspects more in balance, also with regard to their (non)binding status.

Now the four specific rights highlighted above are only exemplary. There are more differences that could be of inspirational value for a critical assessment of the (in)completeness of the rights of vulnerable victims and vulnerable suspects.†††††††††††† By juxtaposing the different instruments, other important gaps in their protection could surface. What is more, addressing these gaps could not only benefit the participants in the criminal proceedings, but it may also serve law enforcement interests, such as evidence preservation.‡‡‡‡‡‡‡‡‡‡‡‡

Finally, it is important to note here that the one-on-one transposal of the rights for vulnerable victims to vulnerable suspects and the other way round is not what I recommend. These rights are not automatically exchangeable. While there is, for instance, little objection against copying the suggestions regarding the number of unnecessary interactions with criminal justice authorities and applying them to suspects as well, things are more complex in relation to the assistance of a trusted person. §§§§§§§§§§§§ Under circumstances, the rights of the suspect and of the victim need to give way to law enforcement goals. But there is no harm in exploring what alternative supportive measures can be made available for vulnerable suspects and victims, measures that do not hamper the good administration of justice.

†††††††††††† Think, for instance, of the recommendation to make an audio-visually recording of the pre-trial questioning of vulnerable suspects (Recommendation 13). A similar stipulation could unburden vulnerable victims as well.‡‡‡‡‡‡‡‡‡‡‡‡ Improvement of the translation and interpretation services for victims, for example, would not only be of use to the victims concerned, but it might also benefit interests of due process. Prescribing a timely interpretation or translation, for instance, could improve the accuracy of the victim’s statement: If too much time lapses before the victim can make him- or herself heard, certain details of the crime may have been forgotten or become distorted. §§§§§§§§§§§§ Often there are compelling reasons for not having a trusted person in the interrogation room when a suspect is being interviewed. For one, this presence could interfere with interrogation methods and frustrate the process of fact-finding. Some suspects do not want to lose face in front of a loved-one, and persist in denying the facts, while they would readily have confessed in his absence. When suspects are concerned, a wide-ranging provision such as article 20(c) Victim Directive with room for only few exceptions, is therefore less appropriate.

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