Law, Responsibility and Vulnerability

State Accountability and Responsiveness

James Gallen, Tanya Ni Mhuirthile, James Gallen, Tanya Ni Mhuirthile

• Publisher: Routledge
• Year: 2021
• ISBN:
  9780429662966
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This book addresses how law and public policy cause or exacerbate vulnerability in individuals and groups.

Bringing together scholars, judges and practitioners, it identifies how individuals and groups can become vulnerabilised through the operation of law, and examines how the State can acknowledge and remedy that impact. The book offers not only a theoretical, ethical and normative conception of vulnerability in law, but also an evaluation of the diverse practices of responding to vulnerability in law through accountability mechanisms and public campaigns. The analysis of vulnerability contained in this volume is enhanced by the common use of Ireland as a case study. Despite the robust rights protections available at national, regional and international level, Ireland remains a State where at risk people have experienced vulnerability across a range of thematic areas, such as criminal law, migration and asylum, historical abuse, LGBTI rights and austerity. Drawing on comparative analyses and a consideration of the role of international law in domestic settings, this book offers a comparison of diverse national and transnational attempts to ensure State accountability and responsiveness to legally created vulnerabilities. The book demonstrates lessons learned from theory and practice regarding how vulnerability can be experienced by individuals and groups, structured by law and addressed through legal and political action.

This book will be of considerable interest to socio-legal and "law and society" scholars, as well as others working in international human rights, jurisprudence, philosophy, legal theory, political theory, feminist theory, and ethics.

1 ‘Vulnerability’ as a factor in the assessment of claims before the European Court of Human Rights

Ann Power Forde¹

1 Ann Power Forde is a former Judge of the European Court on Human Rights. The views expressed herein are expressed in her personal capacity and not as a representative of the Court.

DOI: 10.4324/9780429023149-2

I have been asked to address you on the issue of ‘vulnerability’ under the European Convention of Human Rights (ECHR), a subject that was of particular interest to me during my time as a Judge of the Strasbourg Court. The liberal notion that humans are born free and remain autonomous throughout their lives has shaped how international human rights law has developed. It posits that states exist because individuals, who are free by nature, join together and consent to the creation of an entity – the State – to act on their behalf. Their rights and freedom are protected against encroachment by other individuals and by the State. States must justify any interference with the individual’s human rights.

A new movement in legal philosophy – the ‘vulnerability movement’ – is now questioning this foundational principle. Inspired by the work of Martha Fineman, the ‘vulnerability movement’ argues that the human being is born physically and socially dependent on its environment and remains dependent on that environment for the rest of its life. Vulnerability replaces autonomy as the essential characteristic of the human person. The movement posits that unless we have regard to vulnerability in our notions on law, a constituent component of the person is neglected. It claims that the ‘autonomy myth’ has produced institutional arrangements that fail to take account of the dependency inherent in the human condition resulting in major social inequalities. Fineman calls for a refocusing of law and policy away from autonomy and towards vulnerability.

The paradox of vulnerability

Vulnerability is, as Peroni and Timmer point out, a paradoxical concept.² It is universal in that we are all vulnerable and it is particular in that we each experience it differently. It is burdensome in that we are constantly susceptible to harm – but it has its benefits in that it inspires intimacy and makes us ‘reach out to others, to form relationships, and build institutions’.³ Although vulnerability has been mentioned in several hundred rulings of the Strasbourg Court, the Court has not defined vulnerability or vulnerable individuals or groups. It identifies on a case-by-case basis whether the applicant or a person involved in the case is in a condition of vulnerability. As a result, there is a diversity of persons that the Court has recognised as vulnerable subjects.

2 Lourdes Peroni and Alexandra Timmer, ‘Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law’ (2013) 11(4) International Journal of Constitutional Law 1056–1085.

3 Martha Albertson Fineman, ‘ “Elderly” as Vulnerable: Rethinking the Nature of Individual and Societal Responsibility’ (2012) 20(1) Elder Law Journal 96.

In 2001, the Court first mentioned the concept of ‘vulnerable groups’.⁴ In this early formulation, the Court identified two factors that pointed towards vulnerability: (i) the applicant’s membership of a minority group (Roma); and (ii) the lack of consideration of its minority lifestyle in the State’s decision-making processes. This early articulation of vulnerability had already put in place the elements that would later shape the Court’s subsequent formulations of ‘vulnerable groups’: membership of a minority group whose vulnerability is partly constructed by broader societal, political and institutional circumstances.

4 Chapman v. the United Kingdom Application no. 27238/95, Judgment (Merits and Just Satisfaction) 18 January 2001.

Categories of vulnerable persons

Yussef Al Tamimi has analysed over 500 judgments of the Court since Dudgeon⁵ and has identified those groups whose claims receive ‘vulnerability’ attention from the Court.

5 Dudgeon v. United Kingdom, Application no. 7525/76, 22 October 1981.

Detainees

With mentions of vulnerability in over 236 cases, detainees are identified as by far the most frequently mentioned vulnerable category in the Court’s judgments. In early cases, detainees who had been the subject of ill-treatment or who were experiencing mental illness or who did not speak the language of the judicial officer were deemed vulnerable.⁶ Quickly, however, the Court came to the view that all persons who are held in detention are in a ‘vulnerable position’. In Salman v. Turkey, the Grand Chamber noted: ‘[p]ersons in custody are in a vulnerable position and the authorities are under a duty to protect them’.⁷

6 TW v. Malta Application no. 25644/94, Judgment (Grand Chamber) 29 April 1999; Stanev v. Bulgaria Application no. 36760/06 Judgment (Merits and Just Satisfaction) (Grand Chamber) 17 January 2012; Murray v. the United Kingdom Application no. 14310/88 Judgment (Merits and Just Satisfaction) (Grand Chamber) 28 October 1994.

7 Salman v. Turkey Application no. 21986/93 Judgment (Merits and Just Satisfaction) (Grand Chamber) 27 June 2000, at para. 99.

Because of this vulnerable status of prisoners, substantive and positive obligations on states have been developed to ensure that the prisoner’s right to life is respected under Article 2, to protect prisoners from self-harming acts and from harm from others.⁸ In addition, those who are deprived of their liberty and under the full control of the authorities are deemed to be most vulnerable to, and at risk of, abuse of State power, including torture and ill-treatment under Article 3. Recognition of the inherent vulnerability of detainees led to the European Committee for the Prevention of Torture (CPT) being explicitly mandated to visit persons deprived of their liberty so as to ensure their protection from torture and from inhuman or degrading treatment or punishment.⁹ The types of treatment identified and condemned by the Court include Palestinian hanging (Aksoy v. Turkey);¹⁰ severe forms of beating (Selmouni v. France, Dikme v. Turkey);¹¹ denial of medical treatment (Ilhan v. Turkey);¹² electric shocks (Akkoç v.Turkey);¹³ rape (Aydin v. Turkey);¹⁴ beatings on the soles of the feet (Salman v. Turkey,¹⁵ Greek case¹⁶); sleep and food deprivation. The worst offenders in the case law are Turkey, Romania, Russia, Bulgaria and Ukraine.

8 Keenan v. United Kingdom Application no. 27229/95 Judgment (Merits and Just Satisfaction) 3 April 2001; Ketreb v. France Application no. 38447/09, 19 July 2012; Edwards v. United Kingdom Application nos. 39647/98 40461/98 Judgment (Merits and Just Satisfaction) (Grand Chamber) 27 October 2004.

9 Article 1 of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ETS No. 126.

10 Aksoy v. Turkey, Application no. 21987/93 Judgment (Merits and Just Satisfaction) 18 December 1996.

11 Selmouni v. France Application no. 25803/94 Judgment (Merits and Just Satisfaction) (Grand Chamber) 28 July 1999; Dikme v. Turkey, Application no. 20869/92, Judgment (Merits and Just Satisfaction) 11 July 2000.

12 İlhan v. Turkey Application no. 22277/93, Judgment (Merits and Just Satisfaction) 27 June 2000.

13 Akkoç v. Turkey, Application nos. 22947/93 and 22948/93 Judgment (Merits and Just Satisfaction) 10 October 2000.

14 Aydın v. Turkey, Application no. 23178/94 Judgment (Merits and Just Satisfaction) (Grand Chamber) 25 September 1997.

15 Salman v. Turkey Application no. 21986/93 Judgment (Merits and Just Satisfaction) (Grand Chamber) 27 June 2000.

16 Denmark et al. v. Greece, Application no. 3321/67, Commission Report of 5 November 1969, Yearbook 12.

To offset the vulnerable status of detainees, CPT standards require that every Council of Europe (COE) Member State must provide fundamental safeguards to protect detainees against ill-treatment. These include: the right of the detainee to have the fact of his detention notified to a third party of his choice (family member, friend, consulate); the right of access to a lawyer; the right to request a medical examination by a doctor of his choice; and an obligation on states to maintain custody records from the first moment of detention.¹⁷ Where a death or injury occurs in custody, there is a heightened burden on the government to provide a satisfactory explanation through detailed and accurate records concerning the person’s detention, and they should be able to account convincingly for any injuries.¹⁸ The Court considers that detainees with a mental disorder are ‘particularly vulnerable’. The cases of Stanev v. Bulgaria¹⁹ and Murray v. Netherlands²⁰ are particularly worthy of note.

17 2nd General Report of the European Committee for the Prevention of Torture (1992), available at https://rm.coe.int/1680696a3f, para. 36 (last visited 14 December 2020).

18 Salman v. Turkey Application no. 21986/93 Judgment (Merits and Just Satisfaction) (Grand Chamber) 27 June 2000.

19 Stanev v. Bulgaria Application no. 36760/06 Judgment (Merits and Just Satisfaction) (Grand Chamber) 7 January 2012.

20 Murray v. The Netherlands Application no. 10511/10 Judgment (Merits and Just Satisfaction) (Grand Chamber) 26 Apr...