Variable Vulnerabilities? Comparing the Rights of Adult Vulnerable Suspects and Vulnerable Victims under EU Law
| Author | Suzan van der Aa |
| DOI | 10.1177/203228441600700104 |
| Date | 01 March 2016 |
| Published date | 01 March 2016 |
| Subject Matter | Article |
New Journal of Eu ropean Crimina l Law, Vol. 7, Issue 1, 2016 39
VARIABLE VULNERABILITIES?
Comparing the Rights of Adult Vulnerable Suspects
and Vulnerable Victims under EU Law
S A*
ABSTRACT
EU instruments regulating the r ights of adult vulnerable victims and vulne rable suspects
di er in their conceptualisation of ‘vulnerability’. e Victim Directive mainly focuses
on persons who are vulnerable to secondary v ictimisation 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. e aim of the lat ter instrument is to remedy the
suspect’s inability to understand and to e ectively participate in criminal proceedings.
ese di erent conceptualisations have resulted in di erent guarantees for vulnerable
victims and vulnerable su spects. e Recommendation contains provisions that – once
adopted in a victims’ rights instr ument – 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 pe rspectives in its dealings with
vulnerable persons, regardless of wheth er they are victims or suspects.
Keywords: criminal proceedings; EU law; victims’ rights; vulnerable suspects;
vulnerable victims
1. INTRODUCTION
e position of victims w ithin criminal proceedings has not always been recognised
as deserving of ded icated protection.1 Traditionally, criminal procedural law and
* Suzan van de r Aa, Ph.D., is an assist ant professor at the Internat ional Victimolog y Institute Tilbu rg
(INTERVICT), Ti lburg University, the Netherla nds.
1 See, for insta nce, M.S. Groenhu ijsen & R.M. Letsc hert, ‘Legal refor m on behalf of victi ms of crime:
e primacy of the D utch legislatu re in a changing i nternational env ironment’, SSRN, TLS Resea rch
Paper no 02/2011, 2010.
Suzan van der A a
40 Intersentia
human rights law only focused on mea sures that would guarantee the suspect or
accused person a fair trial, with v ictims being regarded as useful witnes ses and
informants, but certa inly not as persons on an equal (rights) footing with suspect s.2
It was not until the 1980s th at victims’ r ights nal ly managed to gain territory in
a eld hitherto domi nated by law enforcement and defence interests. e coming into
force of landmark instr uments such as the 1985 UN Declaration of Basic Principles of
Justice for Victims of Crime a nd Abuse of Power; the 1985 Council of Europe
Recommendation on the Position of the Victim in the Framework of Crimi nal Law
and Procedure; and the 2 001 EU Framework Decision on the Standi ng of Victims in
Criminal Proceedings marked the beginning of a new era in which victims’ rights
became rmly a nchored in national, regional, a nd international legislation.3
Init ially, the ever-grow ing body of victim s’ right s met with great di strust f rom the
side of the crimina l justice establishment. Critics objected that strengthening t he
procedural standi ng of victims would automatically lead to t he detriment of suspects.4
ey lamented the time-consuming nature of cer tain victims’ rights and t heir
incompatibility wit h the suspect’s right to a fair t rial.Another concern was that the
increased attention for victi ms’ rights would shi the focus away from the primary
goal of the crimi nal procedure – to pass judgment on the suspect – and that it would
lead to inequality of just ice, emotional scenes and delays.
Since then, however, the tables seem to have turned. A lthough many vict ims’
rights are stil l auxiliary to those of t he suspect,5 there are also area s in which victims’
rights seem to have surpassed t hose of suspects, actually placing certain victims, in
certain respects, in a privileged position compared to suspects in similar situations.
2 For the sake of read ability, I wil l not use the phrase ‘suspect or accu sed person’ throug hout this
paper. Instead, I w ill use the t erm ‘suspect ’ to refer to both categor ies of legal subjec ts simultane ously.
3 UN Declarat ion of Basic Principles of Justice for Vict ims of Crime and Abuse of Power, GA Res.
40/34 of 29November 1985; C ouncil of Europe Recommendation (1985)11 on the Position of the
Victim in t he Framework of Crimina l Law and Procedure of 28June 1985; EU C ouncil Framework
Decision on the Sta nding of Victims in C riminal Proce edings (2001/220/JHA) of 15March 2 001.
4 In the case of t he Netherlands, for ins tance, objections were ra ised by prominent crim inal lawyers,
such as: Y. Buruma, De a andacht van de strafrechter (inaugur al address Nijmegen), Arn hem: Gouda
Quint 1996; W. Reehuis, S chadevergoe ding in het strafproce s (inaugural address Groningen),
Deventer: Kluwer 1992; a nd F. Fernhout & T. Spronken, ‘Spreekrecht voor sl achto ers, aspirientjes
voor de rest’, NJB (3) 2005, 150–156. Althoug h to date the rights of victi ms are rmly establi shed
within t he Dutch criminal law sy stem, occasionally old concer ns resurface and object ions against
(the expansion of ) victims’ right s are reiterated in the medi a.
5 For an evident exa mple of victims’ rig hts being trump ed by those of the defenda nt see, for instance,
Article6 (6) of the EU Victim Directive (Direc tive 2012/29/EU of the European Parl iament and of
the Council of 2 5 October 2012 est ablishing mi nimum stand ards on the rig hts, support and
protection of vic tims of crime, and re placing Council Fr amework Decision 2001/220/J HA (OJ L315
25.10.2012). Article6(6) stipulates t hat victims at least h ave the right to be noti ed of the suspects’
escape or release f rom detention in cases where thi s release or escape represents a thre at to them,
‘unless there is a n identi ed risk of harm to the o end er which would result from th e noti cation’.
In other words, when t he release constitutes a t hreat to both the victi m and (upon noti cation) the
suspect, prefere nce is given to the safet y of the suspect.
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