Not vulnerable enough? A missed opportunity to bolster the vulnerable accused’s position in Hasáliková v. Slovakia

By Dr Roxanna Dehaghani

Who satisfies the definition of a ‘vulnerable accused’ and does a failure to provide reasonable adjustments undermine Article 6 of the European Convention on Human Rights? These questions were central to the judgment in Hasáliková v Slovakia. This comment focuses on A’s claim regarding vulnerability and the absence of adjustments, in addition to the question of the fairness of criminal proceedings where a vulnerable accused has not been provided with reasonable adjustments.

Summary of Facts and Court’s Reasoning

The case concerned an applicant (A) who had been convicted of murder and sentenced to fifteen-years imprisonment. A claimed that criminal proceedings had been unfair and had breached her rights under Articles 5 and 6 of the ECHR. In addition to claims regarding the provision of a lawyer and the reliance on her (later retracted) confession, A contended that the authorities had failed to make reasonable adjustments to account for her vulnerability – denoted by her attendance of a ‘special school’, her entitlement to disability benefits, her attendance at a psychiatrist, her obvious physical disability, and her evident intellectual (dis)ability. An expert psychiatric and psychological opinion had concluded that A had a ‘mild’ intellectual disability, exhibited infantile and simplistic thinking, and was ‘very naïve, emotionally mature, and easily influenced’ (at para 2). Yet, this assessment focused overwhelmingly on questions of A’s responsibility for the offence rather than her ability to understand the procedures to which she was subjected.

The ECtHR (the Court) was tasked with considering whether A was a vulnerable person and, as such, whether she required reasonable adjustments to enable her to understand and meaningfully participate in the criminal process. Whilst accepting the stress of police interview and the heightened stress for someone with a ‘slight intellectual disability’ (para 68), the Court, relying on the expert assessment, considered A not to be vulnerable. In providing its reasons, the Court explained that A was not suffering from mental illness or disorder, was able to recognise the dangerousness of her actions, and had foresight of the consequences. The Court further considered that A was an adult, was literate, had been assisted by a lawyer from initial questioning ‘during which she confirmed that she fully understood the charges’ (para 68), and had not indicated any difficulty understanding or expressing herself until the court hearing almost a year later (despite it being ‘incumbent’ on A that she or her lawyer raised these concerns prior to appeal). Further, there had been no evidence of coercion and neither had it been indicated that A would face sanctions for refusing to answer questions. There was therefore ‘no reason to blame the authorities for admitting [A’s] pre-trial statements as admissible evidence’ (para 70) and nothing to call into question the reliability of A’s first statement provided to the police on 25 October 2009. The Court thus held that there had been no violation of Articles 6 (1) and (3) ECHR.

The dissenting opinion – delivered by Judges Turković and Schembri Orland – found that there had been a violation of Article 6 (1) and (3) owing to the failure to counterbalance A’s vulnerability with appropriate safeguards or – at trial – through exclusion of evidence. First, the dissenting judges argued that the majority had been incorrect to assess A as insufficiently vulnerable, highlighting that the expert report had neither ascertained the degree of A’s vulnerability nor her fitness to be interviewed, capacity to stand trial, or any other needs or adjustments. Rather, the report focused on A’s ability to ‘distinguish right from wrong’ and therefore whether she could be ‘held responsible for the crime she had allegedly committed’ (at para 5). Second, although A was not suffering from a mental illness or disorder, this was irrelevant when ‘assessing the consequences of her intellectual disability’ and that intellectual disability was ‘a ground for particular vulnerability’ (para 9). The dissenting opinion drew attention to the existing evidence-base of research on wrongful convictions and false confessions and the special consideration paid to vulnerable suspects by the Council of Europe and the EU – something that the majority failed to consider. The dissenting judges also highlighted the inadequacy of lawyer training in relation to – and experience of – intellectual disability, and the absence of an appropriately trained adult to encourage effective and meaningful participation. For the dissenting judges, the inactivity of the lawyers in raising the issue of A’s vulnerability only further exacerbated her already vulnerable position.

Comment, Future Impacts and Conclusion

The dissenting opinion provides a robust critique of how the majority interpreted A’s vulnerability and the resulting implications on her ability to understand criminal proceedings (including the need to make reasonable adjustments). Contrary to the majority, the dissenting judges argued that A was vulnerable and that the failure to make reasonable adjustments to address A’s vulnerability constituted a breach of Article 6 (1) and (3) ECHR.

There are a number of problems with the majority judgment (as identified by the dissenting judges). First is their incredibly narrow understanding of vulnerability – something that they link with mental illness or disorder (although it is interesting to note that in England and Wales, learning/intellectual disability is included under the definition of mental disorder). Accused persons with intellectual disabilities, as the dissenting judges highlight, are vulnerable and should be treated as such. Adopting a critical curiosity, the dissenting judges pointed towards the inconsistencies of A’s statements as being evidence of – or at least compatible with – her vulnerability. Problematically, the majority also equated understanding of the nature of one’s conduct with understanding of process (and of rights and entitlements). Finally, there seems to be a focus on coercion and/or threats as a basis for questioning reliability rather than a recognition that suspects may confess in the absence of coercion and/or threats, particularly if the suspect is psychologically vulnerable.

Whilst A was attended by a lawyer, the majority erred by implying that the lawyer’s assistance ameliorated A’s vulnerability. This is certainly accurate in a general sense – all accused persons could be considered vulnerable during police questioning and throughout the criminal process more generally and the lawyer may address this (legal) vulnerability. However, A’s particular vulnerability – intellectual disability – demanded that an additional safeguard – support from a professional or family member – was implemented. As assistance by a lawyer is an entitlement for all suspects, it does not follow that the lawyer’s presence is sufficient to address a vulnerable suspect’s additional or particular vulnerability. The majority seemed to expect A or her lawyer to raise the issue of vulnerability at trial, yet, for this to be feasible, it would be incumbent that A was able to adequately instruct her lawyer or otherwise raise this matter herself. To do so, A needed to understand how to instruct her lawyer and/or a needed a broader, adequate understanding of the criminal process. Of course, her lawyer could have raised this matter, but – as the dissenting judges highlight – the lawyer(s) may not have been sufficiently knowledgeable in respect of intellectual disability (and this could undoubtedly be said of lawyers more generally). As also emphasised by the dissenting judges, that the lawyers did not raise the issue of A’s vulnerability serves to further exacerbate the matter.

It is disappointing and indeed regretful that the majority did not take this opportunity to properly engage with A’s vulnerability and the impact of her vulnerability on the fairness of the proceedings against her. Their judgment – in contrast with the dissenting opinion – betrays a lack of understanding of vulnerability and how it manifests, how it is defined, how it is identified (and the challenges herein), and the effect of not addressing it. This is not unsurprising as there are significant gaps in criminal justice practitioners’ knowledge of vulnerability vis-à-vis the accused, even in jurisdictions with long-established protections such as England and Wales. Additionally, it is vital that criminal justice practitioners accept that psychological vulnerability can exist without the use of coercion and/or threats. Imperative also is that judges – and other criminal justice actors – acknowledge the limits of legal advice and representation and, importantly, the myriad barriers that the accused may face when attempting to instruct or engage with their lawyer (exacerbated further by particular vulnerabilities).

To address these matters – and to thus protect the vulnerable accused – improved knowledge and understanding of the accused’s vulnerability is necessary. Achieving this would likely require training not simply for judges, but also for lawyers, police officers, and criminal justice health professionals. Clear and concrete definitions of vulnerability, based on the existing evidence base, are necessary. Also necessary are clear, unequivocal principles on the nature of the adjustments required to ameliorate the specific vulnerability and a satisfactory regime detailing with whom responsibility for requesting such adjustments rests.

Hasáliková represents a missed opportunity to bolster the rights of the vulnerable accused at a domestic and ECHR level. Yet, it is heartening to see the dissenting opinion attempt to rectify the myriad errors of the majority. The dissenting judges should be commended for their knowledge and understanding of the complexities of vulnerability and its impact on criminal proceedings. It is, however, disappointing that the majority did not act so diligently.