Interim Position Paper on Vulnerable Suspected and Accused Persons in
Criminal Proceedings Reform Presented by the European Commission on
27 November 2013
December 2013
Background
The JUSTICIA European Rights Network, of which the Irish Council for Civil Liberties (ICCL)
is Consortium Leader, was formally established in 2012. JUSTICIA currently has 11 member
organisations based in 10 European Union (EU) States:
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Bulgarian Helsinki Committee
Greek Helsinki Monitor
Helsinki Foundation for Human Rights (Poland)
Human Rights Monitoring Institute (Lithuania)
Hungarian Civil Liberties Union
Irish Council for Civil Liberties
Latvian Centre for Human Rights
League of Human Rights (Czech Republic)
Open Society Justice Initiative
Rights International Spain
Statewatch (UK)
The Network’s thematic focus is on EU criminal justice, particularly procedural rights, and
right of victims of crime. For more information on the activities of the Network, please see:
http://www.eujusticia.net/.
I. Introduction
On 27 November 2013 the European Commission published a package of proposals to
further strengthen procedural safeguards for suspected and accused persons in criminal
proceedings.1 This package consists of a set of five proposals, two of which are specifically
targeted at vulnerable suspected and accused persons in criminal proceedings. This position
paper will focus on the dual vulnerable persons’ proposal:
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Proposal for a Directive of the European Parliament and of the Council on special
safeguards for children suspected or accused in criminal proceedings (hereinafter the
“draft Directive”)2
Commission Recommendation on procedural safeguards for vulnerable persons suspected
or accused in criminal proceedings (hereinafter the “Recommendation”).3
This joint legislative proposal originated from Measure E of the Swedish roadmap for
strengthening procedural rights of suspected or accused persons in criminal proceedings,4
which recognised the importance of showing special attention to vulnerable suspected and
accused persons in order to safeguard proceedings.5 The need for an EU proposal in this field
is borne out by the findings of the European Commission Impact Assessment conducted in
advance of the proposal’s development. It concluded that, “the ability to effectively exercise
the fair trial rights guaranteed by the European Convention on Human Rights (ECHR) and
the Charter of Fundamental Rights of the European Union (EU Charter), “largely depends on
the ability of the suspect or accused person to follow and fully participate in the procedure,
which may be limited due to age, lack of maturity, or disabilities.”6
An analysis conducted by the European Commission of the current legislation in place in the
Member States confirms “that the procedural safeguards granted by the Member States to
both children and vulnerable adults are insufficient to guarantee their effective participation
in criminal proceedings”.7
European Commission, Communication 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, Brussels, XXX, COM(2013) 820/2, available at
http://ec.europa.eu/justice/criminal/files/com_2013_820_en.pdf, accessed on 31.12.2013.
2http://ec.europa.eu/justice/criminal/files/com_2013_822_en.pdf.
3 European Commission Recommendation, 27 November 2013, (2013/C 378/02), available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2013:378:0008:0010:EN:PDF, accessed on 31.12. 13,
accessed on 31.12.2013..
4http://register.consilium.europa.eu/doc/srv?l=EN&t=PDF&gc=true&sc=false&f=ST%2014552%202009%20
REV%201
5 Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of
suspected or accused persons in criminal proceedings (2009/C 295/1), available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2009:295:0001:0003:EN:PDF, accessed on 31.12.13.
6 Impact Assessment Accompanying the document Proposal for a Directive of the European Parliament and of
the Council on procedural safeguards for children suspected or accused in criminal proceedings of 27
November 2013, SWD (2013) 480 final, p.6, available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=SWD:2013:0480:FIN:EN:PDF, accessed on 20.12.13.
7 Impact Assessment Accompanying the document Proposal for a Directive of the European Parliament and of
the Council on procedural safeguards for children suspected or accused in criminal proceedings of 27
November 2013, SWD (2013) 480 final, p.6, available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=SWD:2013:0480:FIN:EN:PDF, accessed on 20.12.13, p.12.
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Interim Position Paper on Vulnerable Suspected and Accused Persons Proposals of
November 2013
This is further supported by case-law of the European Court of Human Rights (ECtHR) which
has highlighted the existence of inadequate safeguards in many Member States.8 In addition,
the Court has found that,
The problem of insufficient protection of the fair trial rights of children and vulnerable adults [...] is not
sufficiently addressed by the already adopted measures on procedural rights [...] and thus, at present the
legal framework does not sufficiently foster mutual trust at a level which will ensure the smooth
functioning of the mutual recognition instruments in criminal proceedings.9
Under the current Commission proposals, the draft Directive will provide minimum
standards of protection only for children under the age of eighteen at the time when they are
suspected or accused of having committed a criminal offence until the conclusion of the
proceedings.10 In addition, children who, through the course of questioning, become accused
or suspected of a criminal offence, and subject to the European Arrest Warrant, will be
afforded rights under the Directive.11 However, as is demonstrated by the Commission’s own
research (Impact Assessment accompanying the draft Proposal); vulnerability is not
confined to minors alone.12
The Commission Recommendation, which has already been adopted and will not be
submitted to the Council for discussion, addresses the procedural rights of all vulnerable
suspected or accused persons who are not able to understand, nor effectively participate in
criminal proceedings due to their age, mental or physical condition, or disabilities, from the
moment they are suspected of committing a criminal offence until the conclusion of the
proceedings.13 The Recommendation also applies when a vulnerable person is subject to the
European Arrest Warrant.
See Annex V of the Impact Assessment Accompanying the document Proposal for a Directive of the European
Parliament and of the Council on procedural safeguards for children suspected or accused in criminal
proceedings of 27 November 2013, SWD (2013) 480 final, which outlines outlines relevant ECtHR caselaw
that support evidence of inadequate safeguards available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=SWD:2013:0480:FIN:EN:PDF, accessed on 20.12.13 p. 88.
9 Impact Assessment Accompanying the document Proposal for a Directive of the European Parliament and of
the Council on procedural safeguards for children suspected or accused in criminal proceedings of 27
November 2013, SWD (2013) 480 final, p.6, available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=SWD:2013:0480:FIN:EN:PDF, accessed on 20.12.13, p.12.
10 Article 1, 2 and 3.
11 Article 1, 2 and 3.
12 At this point it should be noted that further limitations such as sex or any other individual characteristic may
further limit a person’s ability to effectively exercise their rights.
13 Preamble, para. 1 and Section 1.
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Interim Position Paper on Vulnerable Suspected and Accused Persons Proposals of
November 2013
The aim of this interim position paper is to summarise key aspects of the draft Directive and
Commission Recommendation, and to place them within the context of existing human rights
standards, in particular:
 Article 6 (1), (3) of the European Convention on Human Rights (ECHR) (right to a fair
trial)14
 Committee of Ministers of the Council of Europe Guidelines on child-friendly justice
 UN Convention on the Rights of the Child (CRC)
 UN Convention on the Rights of People with Disabilties (CRPD)
II. Procedural Safeguards for Children
The Draft Directive contains a number of enhanced protections for children who are accused
or suspected of criminal offences, including:
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Right to information (also to the holder of criminal responsibility)
Right to a lawyer
Right to an individual assessment
Right to medical examination
Right to liberty
Right to protection of privacy
Right to legal aid
Whilst JUSTICIA welcomes the proposed binding protection afforded to suspected and
accused children, we note that the certain additional protections in its current wording falls
short of the Guidelines of the Committee of Ministers of the Council of Europe on child-friendly
justice,15 the promotion of which was specifically set as a priority action in the 2011 EU
Agenda for the Rights of the Child.16
European Court of Human Rights, Council of Europe, 01.11.1998, available at
http://www.echr.coe.int/Documents/Convention_ENG.pdf, accessed on 13.12.13.
15
Council
of
Europe,
17
November
2010,
1098th
meeting,
available
at
https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Del/Dec(2010)1098/10.2abc&Language=lanEnglish&Ver=app6&Sit
e=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383, accessed on
31.12.13.
16 Communication from the Commission to the European Parliament, the Council, the European Economic and
Social Committee and the Committee of the Regions – An EU Agenda for the Rights of the Child, adopted on 15
February 2011, point 2.1. p.8 Available at:
<http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0060:FIN:en:PDF>.
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November 2013
Interview
The draft Directive provides that “Member States shall ensure that any questioning of
children [...] is audio-visually recorded”.17 It attempts to provide further guidance on
interviewing suspected or accused children noting that “the length, style and pace of
interviews should be adapted to the age and maturity of the child questioned.”18
However, the Guidelines of the Committee of Ministers of the Council of Europe on Child
Friendly Justice, (hereinafter “Council Guidelines“)19 stipulate that,
In all proceedings, children should be treated with respect for their age, their special needs, their
maturity and level of understanding, and bearing in mind any communication difficulties they
may have. Cases involving children should be dealt with in non-intimidating and child-sensitive
settings20 [emphasis added].
The Council Guidelines further note that “[c]hildren should be allowed to be accompanied by
their parents or, where appropriate, an adult of their choice, unless a reasoned decision has
been made to the contrary in respect of that person.“21 In addition, where appropriate,
interview and waiting rooms should be arranged for children.22
Training
The draft Directive provides that judicial and law enforcement authorities, prison staff and
lawyers shall receive training specifically relating to the handling of cases involving
children.23 It further specifies that these professionals are to receive “particular training
with regard to children's legal rights, appropriate interviewing techniques, child psychology,
communication in a language adapted to the child and pedagogical skills.”24
In its General Comment No. 12, the UN Committee on the Rights of the Child provides more
in-depth guidance on training, noting that the competent authorities need to be capable of
communicating with the vulnerable suspected or accused person to ensure that all his/her
individual characteristics with respect to his/her effective participation in the proceedings
Article 9.
Explanatory Memorandum, para. 42.
19 Council of Europe, 17 November 2010, 1098th meeting, available at
https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Del/Dec(2010)1098/10.2abc&Language=lanEnglish&Ver=app6&Sit
e=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383, accessed on
31.12.13.
20 Guideline 5, para. 54.
21 Guideline 5, para. 58.
22 Guideline 5, para. 62.
23 Article 19.
24 Article 19.1.
17
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are assessed and taken into account.25 In addition, the UN Convention on the Rights of
Persons with Disabilities (CRPD), which recognises that “children with disabilities should
have full enjoyment of all human rights and fundamental freedoms on an equal basis with
other children”,26 acknowledges the need for diverse communication methods in addition to
training and awareness-raising with the police, social workers, first responders and the
judiciary, in order to support persons with disabilities in accessing justice.27
Rights of Children Below the Age of Criminal Responsibility
The draft Directive “does not affect national rules determining the age of criminal
responsibility.”28 However, ECHR jurisprudence demonstrates that, in certain EU Member
States, children below the age of criminal responsibility, who have been suspected of
committing a criminal offence, have been subject to proceedings without access to legal
assistance and subsequently, have been placed in closed educational or psychiatric
establishments.29 The recent European Court of Human Rights case of Blokhin v. Russia30
concerned a child who had had engaged in unlawful behaviour, and was below the national
age of criminal responsibility.31 The applicant had been placed in a temporary detention
centre for juveniles for 30 days to prevent him from being involved in future delinquency.
The need of adults to be trained „in listening, working jointly with children and engaging children effectively
in accordance with thein evolving capacities was emphasised“by the UN Committee on the Rights of the Child,
General Comment No. 12 (2009) – The right of the child to be heard, CRC/C/GC/12
1 July 2009, para. 134 (g), available at
http://www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC-C-GC-12.pdf , accessed on 31.12.13.
Even the UN Committee on the Rights of Persons with Disabilities strengthen the need for recognition of
diverse communication methods in order to support persons with disabilities the in the exercise of legal
capacity and for training of judiciary in this regard. See the Draft of General Comment on Article 12 of the
CRPD: Equal recognition before the law, section 35. The document is available at:
<http://www.ohchr.org/EN/HRBodies/CRPD/Pages/DGCArticles12And9.aspx>.
26 Preamble, recital (r).
27 UN Committee on the Rights of Persons with Disabilities, (Draft) General Comment on Article 12: Equal
Recognition before the law, 25 November 2013, CRPD/C/11/4, para. 35, available at
http://www.ohchr.org/EN/HRBodies/CRPD/Pages/DGCArticles12And9.aspx, accessed on 31.12.13.
28 Article 2.
29
For example, see recent criticism of the Czech Republic by international human rights bodies: See Concluding
Observations of the UN Human Rights Committee on the Third Periodic Report of the Czech Republic, adopted
on 22 August 2013, section 20, CCPR/C/CZE/CO/3; Concluding observations of the UN Committee on the
Rights of the Child on the Czech Republic, adopted on 17 June 2011, CRC/C/CZE/CO/3-4.
30 Blokhin v. Russia, application no. 47152/06, judgment of the European Court of Human Rights of 14
November 2013.
31 The applicant alleged that his detention in a temporary detention centre for juvenile offenders had been
unlawful, the conditions of his detention had been inhuman, and the proceedings against him had been unfair.
The complaints regarding the alleged lack of medical care, inhuman conditions of detention, unlawfulness of
the detention and the alleged unfairness of the proceedings were declared admissible. The Court held there
was a violation of Article
3, Article 5 § 1, Article 6 §§ 1 and 3 (c), (d) of the Convention.
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Interim Position Paper on Vulnerable Suspected and Accused Persons Proposals of
November 2013
The ECtHR held “that the nature of the offence, together with the nature and severity of the
penalty, were such that the proceedings against the applicant constituted criminal
proceedings within the meaning of Article 6 of the Convention.”32
As such, it is important to note, where the treatment of minors below the age of
responsibility amount to criminal proceedings as per the test in Blokhin, Member States
must meet their obligations under the Directive in their treatment of the children in
question.
Diversions
The draft Directive does not refer to programmes which provide diversions from criminal
proceedings. In fact, the Explanatory Memorandum specifically lists “rules on diversion from
justice systems” as one of the measures which were discarded.33
The UN Committee on the Rights of the Child has emphasised that “[s]tates parties should
take measures for dealing with children in conflict with the law without resorting to judicial
proceedings as an integral part of their juvenile justice system”.34 According to the UN
Committee, such an approach should be applied as a rule with respect to minor offences and
first-time child offenders in accordance with “the principles set out in article 40(1) of
CRC”.35 The Committee has further stated that “[i]n addition to avoiding stigmatization, this
approach has good results for children and is in the interests of public safety and has proven
to be more cost-effective.”36 Moreover, the UN Committee has highlighted that States’
obligation to promote the use of diversions is not limited to minor offences or first-time
child offenders37 but that diversion measures from judicial proceedings should apply in
most cases involving child offenders.38 The use of diversions in all proceedings dealing with
children is also provided for in the Guidelines of the Committee of Ministers of the Council of
Europe on child friendly justice, which sets out that “[a]lternatives to judicial proceedings
Blokhin v. Russia, application no. 47152/06, judgment of the European Court of Human Rights of 14
November 2013. The ECtHR stated that “the nature of the offence [note: the delinquent act imputed to the
applicant corresponded to an offence in the ordinary criminal law], together with the nature and severity of the
penalty [note: placement in temporary detention centre for minor offenders up to 30 days], were such that the
proceedings against the applicant constituted criminal proceedings within the meaning of Article 6 of the
Convention., § 149.
33 Explanatory Memorandum, para.73, p. 11.
34 UN Committee on the Rights of the Child, General Comment No. 10(2007) – Children´s Rights in Juvenile Justice,
15 January-2 February 2007, CRC/C/GC/10 para 26. Available at
http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf, accessed on 31.12.13.
35 Ibid., para. 25.
36 Ibid., para. 25.
37 Ibid., para. 25.
38 Ibid., para. 24.
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such as mediation, diversion (of judicial mechanisms) and alternative dispute resolution
should be encouraged whenever these may best serve the child’s best interests.”39
III. Procedural Safeguards for Other Vulnerable Suspected and Accused Persons
The aim of the Recommendation is to:
[E]ncourage Member States to strengthen the procedural rights of 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’).40
The Recommendation covers such issues as:
 Non-discrimination
 Presumption of vulnerabilty
 Right to information
 Right of access to a lawyer
 Right to medical assistance
 Recording of questioning
 Deprivation of liberty
 Privacy
 European Arrest Warrant proceedings
The Commission stated that it would be inappropriate to legislate in this area due to the
absence of a common definition of “vulnerable adult persons“, in addition to “considerations
linked to the principles or subsidiarity and proportionality”.41 As a result, the Commisson
has adopted a non-binding Recommendation on procedural safeguards for vulnerable persons
suspected or accused in criminal proceedings in order to assist with the harmonisation of
standards in this area. With respect to the implementation of this and any future
instruments on vulnerable suspected or accused adults, there are a number of
internationally-accepted standards, as set out below, which should greatly assist in such
legislative developments.
Council of Europe, Guidelines of the Committee of Ministers of the Council of Europe on child friendly justice, 17
November 2010, 1098th meeting, available at
https://wcd.coe.int/ViewDoc.jsp?Ref=CM/Del/Dec(2010)1098/10.2abc&Language=lanEnglish&Ver=app6&Sit
e=CM&BackColorInternet=C3C3C3&BackColorIntranet=EDB021&BackColorLogged=F5D383, accessed on
31.12.13, para. 24.
40 Recital (1).
41 Explanatory Memorandum, Recommendation, para. 10, p.3.
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Definition of Vulnerability
The Recommendation notes four characteristics in relation to “vulnerable persons”: age,
mental or physical condition and disability.42 Previously, in their Green Paper, Procedural
Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European
Union, the Commission suggested a more expansive list of potentially vulnerable persons.
This included a list of eight categories: foreign nationals; children; those who are vulnerable
as a result of their mental or emotional state; those who are vulnerable as a result of their
physical state; those who are vulnerable by virtue of having children or dependants; persons
who cannot read or write; persons with refugee status under the 1951 Refugee Convention,
other beneficiaries of international protection and asylum seekers; and, persons dependent
on alcohol or drugs.43
Furthermore the European Court of Human Rights has identified a number of specific
vulnerable groups in society that have suffered considerable discrimination on account of
their gender,44 sexual orientation,45 race or ethnicity,46 mental faculties,47 physical
disability,48 HIV/AIDS status,49 and status as an asylum seeker.50
In order to ensure that all vulnerable groups are effectively protected, an extensive but not
exhaustive definition of vulnerability should be included in the proposal.
Reasonable Accommodation
The Recommendation calls for appropriate measures to be taken “to ensure that vulnerable
persons have access to reasonable accommodations taking into account their particular
Preamble, para.1.
European Commission, GREEN PAPER FROM THE COMMISSION Procedural Safeguards for Suspects and
Defendants in Criminal Proceedings throughout the European Union, Brussels, 19.2.2003 COM(2003) 75 final,
available at http://eur-lex.europa.eu/LexUriServ/site/en/com/2003/com2003_0075en01.pdf, accessed on
20.12.13, p. 32.
44 See Abdulaziz, Cabales and Balkandali v. the United Kingdom, applications nos. 9214/80, 9473/81, 9474/81,
judgment of 28 May 1985, § 78, and Burghartz v. Switzerland, application no. 16213/90, judgment of
22 February 1994, § 27.
45 See Schalk and Kopf v. Austria, application no. 30141/04, judgment of 24 June 2006, § 97, and Smith and
Grady v. the United Kingdom, applications nos. 33985/96 and 33986/96, judgment of 27 September 1999, § 90.
46 see D.H. v the Czech Republic, application no. 57325/00, Grand Chamber judgment of 13 November 2011, §
182, and Timishev v. Russia, applications nos. 55762/00 and 55974/00, judgment of 13 December 2005, § 56.
47 see Alajos Kiss v. Hungary, application no. 38832/06, judgment of 20 May 2010, § 42, and, mutatis
mutandis, Shtukaturov v. Russia, application no. 44009/05, judgment of 27 March 2008, §95.
48 Glor v. Switzerland, application no. 13444/04, judgment of 30 April 2009, § 84.
49 Kyiutin v Russia, application no. 2700/10, judgment of 15 September 2009, § 64.
50 M.S.S. v Belgium and Greece, application no. 30696/09, Grand Chamber judgment of 21 January 2011, para.
251.
42
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needs when they are deprived of liberty.”51 Following the ratification of the European Union
of the UN Convention on the Rights of Persons with Disabilities (CRPD) in 2010,52 it is crucial
that the definition of “reasonable accommodation” in the Commission Recommendation
should meet the standards of Article 2 CRPD. Under this provision,
Reasonable accommodation” means necessary and appropriate modification and adjustments not
imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons
with disabilities the enjoyment or exercise on an equal basis with others of all human rights and
fundamental freedoms.53
In addition, there is a need to recognise that the denial of “reasonable accommodation”
during the proceedings and in cases of deprivation of liberty can constitute discrimination,
as set out by Article 5 of the CRPD.54
Assessment of Vulnerability
The Recommendation introduces the concept of an assessment of vulnerability, noting the
importance of promptly identifying and recognising the vulnerable suspected or accused
person.55 According to the Recommendation, the initial assessment should be carried out by
law enforcement or judicial authorities,56 with “recourse to a medical examination by an
independent expert to identify vulnerable persons, and to determine the degree of their
vulnerability and their specific needs.”57 In addition it also provides for the right to medical
assistance throughout the criminal proceedings.58
Notably, it further requests that Member States foresee a “presumption of vulnerability”, 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 the proceedings.”59
Notwithstanding this, the sole referral to a “medical examination” in relation to the
assessment suggests that the Recommendation has a narrow understanding of the term
Section 3.14.
23 December 2010, information available at
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=iv-15&chapter=4&lang=en#EndDec.
53 United Nations, available at http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf,
accessed on 31.12.13.
54 Article 5 CRPD in conjunction with Article 2 CRPD.
55 Preamble, para. 6 and Section 2.
56 Preamble, para.6, and Section 2.
57 Section 2.
58 Section 3.12.
59 Section 3.7.
51
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“vulnerability”, which is exclusively focused on the health issues of possible vulnerable
suspected or accused person with the potential to lead to a failure of authorities to recognise
and address other different types and degrees of vulnerability.
Although suspected or accused persons or their lawyers have the right in national law to
challenge the assessment of their vulnerability in criminal proceedings, Member States are
not obliged to provide for a specific mechanism in which a failure or refusal may be
challenged.60
IV. Restorative justice and Victim Participation
Restorative Justice Measures
Both the Directive and the Commission Recommendation are silent on the issue of
restorative justice.61
The Committee of Ministers of the Council of Europe has highlighted “the need to enhance
active personal participation in criminal proceedings of the victim and the offender and
others who may be affected as parties as well as the involvement of the community” 62 as
well as recognising that mediation “may increase awareness of the important role of the
individual and the community in preventing and handling crime and resolving its associated
conflicts”.63
Furthermore, in relation to child offenders, the UN Committee on the Rights of the Child has
stated that the “best interests” of the child, as protected under Article 3 of the Convention,
requires “that the traditional objectives of criminal justice, such as repression/retribution,
must give way to rehabilitation and restorative justice objectives in dealing with child
offenders.”64 The promotion of restorative justice techniques with respect to children in
conflict with the law is also one of the principles of the Council Guidelines.65
Preamble, para.7.
Apart from a brief reference to “restorative justice” under Article 19 of the Directive: (Training).
62 Committee of Ministers of Council of Europe to Member States, Recommendation No R (99) 19 concerning
mediation in penal matters, 15 September 1999, 679th Meeting, available at
https://wcd.coe.int/ViewDoc.jsp?id=420059, accessed on 31.12.13.
63 Ibid.
64 UN Committee on the Rights of the Child, General Comment No. 10(2007) – Children´s Rights in Juvenile Justice,
15 January-2 February 2007, CRC/C/GC/10 section 10. Available at
http://www2.ohchr.org/english/bodies/crc/docs/CRC.C.GC.10.pdf, accessed on 31.12.13., section 10.
Available at:
<http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fGC%2f10
&Lang=en>, accessed on 31.12.13.
65 Explanatory Memorandum to the Guidelines, section 81.
60
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Effective participation of the victim
Both the draft Directive and Commission Recommendation fail to recognise the particular
importance of the victim’s effective participation in the proceedings.
However, the Directive establishing minimum standards on the rights, support and protection
of victims of crime, and replacing Council Framework Decision 2001/220/JHA (Victims’ Rights
Directive)66, which is currently being implemented by Member States, states as one its
purposes: “ to ensure that victims of crime[...] are able to participate in criminal
proceedings.”67 In light of this, the Victims‘ Directive frequently refers to “active
participation” throughout, with Chapter 3 specifically entitled Participation in criminal
proceedings covering a range of victims’ rights including the right to safeguards in the
context of restorative justice services.68 In this respect, the Victims‘ Directive recognises the
importance of encouraging the offender’s sense of responsibility and offers them practical
opportunities to make amends, which may further their reintegration and rehabilitation“.69
In order to ensure a coherent policy and legislative landscape across EU law, the importance
of the “effective participation” of the victim in criminal proceedings both in relation to
recovery of the victim, and the rehabilitation and reintegration of the vulnerable suspected
and accused person should be explicitly recognised in both the draft Directive and
Recommendation.
V. Conclusion
In adopting the Roadmap for strengthening procedural rights of suspected or accused
persons in criminal proceedings, the European Commission indicated its intent to fully
ensure the protection of the procedural rights of all vulnerable suspects and accused people
in criminal proceedings. While the joint proposal certainly strengthens the ability of
vulnerable suspected and accused persons’ ability to exercise their procedural rights
effectively, whether the current proposals go far enough remains to be determined.
Available at http://eur-lex.europa.eu/LexUdriServ/LexUriServ.do?uri=OJ:L:2012:315:0057:0073:EN:PDF
(accessed on 13.12.13).
67 As well as “to ensure that victims of crime receive appropriate information, support and protection...”,
Article 1.1.
68 Article 12.
69 Committee of Ministers of Council of Europe to Member States, Recommendation No R (99) 19 concerning
mediation in penal matters, 15 September 1999, 679th Meeting, available at
https://wcd.coe.int/ViewDoc.jsp?id=420059, accessed on 31.12.13.
66
13 | The JUSTICIA European Rights Network is financially supported by the Criminal Justice Programme of the European
Union