The Protection of Age-related Vulnerable Persons in Criminal Proceedings under German Law – An Examination Measured Against the European Guidelines

Abstract

Population ageing is a phenomenon that affects our societies, with both the number and proportion of older people growing across Europe. This impacts the legal capacity of vulnerable adults, who face challenges and difficulties in protecting their rights, defending their interests and accessing justice, both in national and in cross-border situations. In cross-border situations, for instance, in the case of citizens residing in a State other than that of their nationality, these existing difficulties may be exacerbated by additional obstacles with respect to language, representation or access to the judicial system and to public services in general. Those needs have been identified by the European Union. On 27 November 2013, the Commission adopted a Recommendation on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings.1 The aim of the Recommendation is to encourage Member States to strengthen the procedural rights of all suspects or accused persons who are not able to understand and effectively participate in criminal proceedings due to age, their mental or physical condition or disabilities (‘vulnerable persons’). On 27 May 2021, the Council of the European Union invited the Member States to ensure the full implementation of the existing provisions.2 Consideration is being given to whether further action should be taken. This article assesses the extent to which the existing German criminal procedure law currently meets the standards for protecting older suspects and accused persons identified by the Recommendation of the Commission. By establishing minimum rules on the protection of procedural rights of suspects or accused persons in this field, the trust of Member States in criminal justice systems of other Member States can be strengthened and, thus, mutual recognition of decisions in criminal matters can be improved. In order to achieve the establishment of minimum rules, it is necessary to create a common understanding of the systems of the other Member States, which this article seeks to achieve. It also intends to provide insight into the German system that would be needed to decide, together with a consideration of the systems of the other Member States, whether further legislative action at the level of the European Union, in particular in the form of a Directive, is required.