Victims of Crime with DisabilitiesFootnote ⁴

The key legal instrument protecting the rights of victims under EU law is the 2012 Directive Establishing Minimum Standards of Rights, Support and Protection of Victims of Crime (Victims’ Rights Directive).Footnote ⁵ Article 1 of the Directive aims to “ensure that victims of crime receive appropriate information, support and protection and are able to participate in criminal proceedings.” It sets out a number of rights relating to the provision of information and support for all victims and indicates that “persons who are particularly vulnerable . . . should be provided with specialist support and legal protection.”Footnote ⁶ Chapter 4 requires an individual assessment of victims to identify specific protection needs “due to their particular vulnerability to secondary and repeat victimisation, to intimidation and to retaliation.”Footnote ⁷

The status of vulnerable victims, including disabled individuals, is thus linked to the risk of victimization, intimidation, or retaliation. The required individualized assessment should take into account the personal characteristics of the victim, the type and nature of the crime, and the circumstances of the crime.Footnote ⁸ The Directive indicates the factors which should be taken into consideration in the individual assessment and provides that “victims with disabilities shall be duly considered.”Footnote ⁹

According to van der Aa, the types of victims referred to in this ArticleFootnote ¹⁰ are “more or less earmarked as vulnerable,” meaning that there is a presumption of “vulnerability.” However, van der Aa also notes that these victims are not by definition “vulnerable,” and this must be determined on the basis of an individual assessment.Footnote ¹¹ Those victims who are identified as requiring special protection because of their “vulnerability” can be interviewed in premises designed or adapted for that purpose, be interviewed by professionals who have been specially trained, have all interviews with the same person, and be interviewed by a person of the same sex in the case of victims of sexual violence.Footnote ¹² Additional protection can also be provided during criminal proceedings.Footnote ¹³

The Directive also pays particular attention to people with disabilities, without explicitly identifying them as “vulnerable.” Chapter 2 of the Directive, for example, concerns the provision of information and support to victims, and provides that communications with victims should be given in “simple and accessible language, orally and in writing.” It specifically indicates “[s]uch communications shall take into account the personal characteristics of the victims including any disability which may affect the ability to understand or to be understood.”Footnote ¹⁴ Such communication, when it is adapted to the needs of the individual, can be viewed as a procedural accommodation as required by the CRPD.

Meanwhile, Recital 21, which also addresses information and advice provided by the competent authorities to victims, states that, when providing information, account should be taken, inter alia, of the victim's intellectual and emotional capacity, literacy, and any mental or physical impairment. It also indicates that “[p]articular account should be taken of difficulties in understanding or communicating which may be due to a disability of some kind, such as hearing or speech impediments.”

Lastly Recital 15 addresses the particular situation of victims with disabilities more broadly, and indicates that:

In spite of the provisions addressing communication and accessibility in the Victims’ Rights Directive, van der Aa has criticized the instrument, arguing that it fails to provide “tailored minimum rights for [victims who experience difficulty with communication].” She describes Recital 15 as “a sort of blanket recommendation” and is critical of the Directive, both for its failure to give member states “further instructions” on how to meet the needs of victims with disabilities to “make sure they are capable of understanding the procedure and exercise of their rights,” as well as not addressing the needs of this group in the main body of the text, thereby “indicating a lower priority.”Footnote ¹⁵ Moreover, while the reference to “on an equal basis with others” in Recital 15 resonates with the language of the CRPD,Footnote ¹⁶ there is no explicit mention of the Convention in the Directive, even though the EU was a party to the CRPD when this Directive was adopted. Interestingly, other human rights conventions, to which the EU is not a party, such as the Convention on the Elimination of Discrimination Against Women and the Convention on the Rights of the Child, are referenced in the preamble. Given this openness to international human rights law, it is not clear why the Directive did not pay more attention to the one human rights treaty to which the EU is a party, and Article 13 CRPD on access to justice in particular.

However, the recently adopted European Disability Strategy 2021–2030Footnote ¹⁷ and the EU Strategy on Victims’ Rights 2020–2025Footnote ¹⁸ both set out plans to address the rights of victims with disabilities, and explicitly recognize the relevance of the CRPD in this context. The European Disability Strategy indicates that the Commission will “launch a study on procedural safeguards for vulnerable adults in criminal proceedings, and assess the need for legislative proposals strengthening the support and protection of vulnerable adults who fall victims of crime.”Footnote ¹⁹ This suggests that persons with disabilities will continue to be viewed through the prism of “vulnerability” in EU criminal law, even if greater attention is paid to the CRPD. The Strategy on Victims’ Rights also refers to the CRPD and concisely states that actions under the Strategy “will be in line with the provisions” of the Convention.Footnote ²⁰

Suspects and Accused Persons with Disabilities

In substantive terms, the most significant EU instrument concerning suspects and accused persons with disabilities is the 2013 Commission Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings.Footnote ²¹ Unlike the other instruments discussed in this essay, the Recommendation is a non-binding instrument which calls on member states to act, but does not impose any legal obligation or related sanction for failure to comply. One of the reasons given by the Commission for adopting a non-binding recommendation rather than legislation was that it was not possible to reach agreement on a common definition of “vulnerable adult persons.”Footnote ²²

The Recommendation views “vulnerable persons” as those “who are not able to understand and to effectively participate in criminal proceedings due to age, their mental or physical condition or disabilities” and therefore explicitly links “vulnerability” with disability.Footnote ²³ The Recommendation includes a “presumption of vulnerability” that applies “in particular for persons with serious psychological, intellectual, physical or sensory impairments, or mental illness or cognitive disorders, hindering them to understand and effectively participate in proceedings.”Footnote ²⁴ The instrument recommends that member states carry out an initial assessment to identify “vulnerable” individuals and their needs,Footnote ²⁵ and identifies a series of rights that such individuals should have, dependent on their circumstances. These include non-discrimination, information in an accessible format, the right to access a lawyer which should not be waived, medical assistance, recording of any questioning, and certain guarantees in the case of deprivation of liberty and privacy. The instrument also recommends that relevant officials receive training in how to treat “vulnerable” persons.Footnote ²⁶

This approach is arguably problematic in light of the CRPD, given the potential stigmatization associated with being labeled as “vulnerable,”Footnote ²⁷ and the need to be recognized as such to benefit from relevant protections and accommodations. The CRPD imposes a duty on contracting parties to “ensure effective access to justice for persons with disabilities” and to provide “procedural and age-appropriate accommodations” in order to ensure access to justice.Footnote ²⁸ The right to such accommodations of persons with disabilities is not dependent on a prior recognition of “vulnerability.” Indeed, the language of “vulnerability” is wholly absent from the Convention.

Finally, Recital 16 to the Recommendation states references to “appropriate measures to ensure effective access to justice for persons with disabilities” should be understood in light of Article 13 CRPD, and of the objectives of the Convention as a whole. The Recommendation therefore explicitly invites an interpretation which is in line with the CRPD. Such an interpretation could draw inspiration from the International Principles and Guidelines on Access to Justice for Persons with Disabilities.Footnote ²⁹ In its new Disability Strategy, the Commission has indicated that it intends to build on this set of Principles when providing guidance to member states.Footnote ³⁰

In addition to this Recommendation, a number of EU Directives address the rights of suspects and accused persons. Directive 2010/64 on the right to interpretation and translation in criminal proceedingsFootnote ³¹ establishes rights for “persons who do not speak or understand the language of the criminal proceedings concerned,”Footnote ³² without labeling them as de facto “vulnerable.” Persons with disabilities are not mentioned in this context, but sign language interpretation for deaf individuals seems to fall under the scope of this Directive.Footnote ³³ Directive 2012/13 on the Right to Information in Criminal ProceedingsFootnote ³⁴ requires that suspects and accused persons be informed of their procedural rights in simple and accessible language, “taking into account any particular needs of vulnerable suspects or vulnerable accused persons.”Footnote ³⁵ Directive 2013/48 on the Right of Access to a Lawyer and on the Right to Communicate with Third PersonsFootnote ³⁶ establishes a generic duty owed to “vulnerable” suspects and accused persons by requiring member states to take their particular needs into account when applying the Directive.Footnote ³⁷ Directive 2016/343 on the Strengthening of Certain Aspects of the Presumption of Innocence and of the Right to Be Present at the Trial in Criminal ProceedingsFootnote ³⁸ directs member states to ensure that the particular needs of “vulnerable” persons are taken into account, especially with regard to the right to be present at the trial and the right to a new trial.Footnote ³⁹

All four of these Directives can be regarded as instruments that address “vulnerable persons” collectively, and do not address the specific situation of suspects and accused persons with disabilities.Footnote ⁴⁰ Moreover, none of these Directives reference the CRPD, although the three more recent instruments were adopted after the EU became a party to the Convention, and other human rights instruments to which the EU is a party were referred to in the Preamble to Directive 2016/343.Footnote ⁴¹ Again, it is not clear why Article 13 of the CRPD was apparently not drawn on when drafting these instruments. However, the aforementioned recently adopted European Disability Strategy indicates that further action will be taken in this field.