Quo vadis with vulnerable defendants in the EU?

Abstract

In a recent press release of the 27th of November 2013, the European Commission presented a package of five proposals to further strengthen procedural safeguards for citizens in criminal proceedings. Two of these proposals directly stem from the Council Procedural Roadmap's Measure E on the (need for) special safeguards for suspected or accused persons who are vulnerable. Whereas the roadmap envisions improved attention for a vulnerable subject regardless of the origins of this vulnerability – be it due to age, mental or physical condition – the recent proposals indicate a clear differentiation between vulnerability based on the defendant's age on the one hand, and the (adult) defendant's mental or physical capacities on the other hand. As such, a proposal for a Directive for procedural safeguards for children was presented, whereas adult defendants in criminal proceedings had to be satisfied with a non-binding Recommendation. While it may indeed be defended that an accumulation of these sources for diminished capacity is not preferable, the Commission's approach and underlining rationale seem equivocal. This article observes these recent initiatives from a dual viewpoint. First of all, they are looked at against the backdrop of the ongoing debate vis-a-vis mutual recognition and the introduction of auxiliary procedural safeguards. The article, therefore, critically assesses the supposed link between the introduction of minimum procedural standards for a category of defendants which, precisely due to their vulnerability, seems less capable of being involved in criminal proceedings with a cross-border dimension. With the latter still the raison d'etre for the mutual recognition principle and the basis for the EU to establish minimum rules, the article argues that the EU drifts further away from its Treaty based competence. Secondly, the Commission's reasoning and subsequent policy choice to divide vulnerability based on the defendant's age is analysed with respect to the indications coming from European policy makers and scholars alike. Without aiming to promote a viewpoint of vulnerability where one cause is hierarchically decisive over the other, the article makes a case for an (equally) adequate instrument for defendants with a mental disorder in criminal proceedings.