1 âVulnerabilityâ as a factor in the assessment of claims before the European Court of Human Rights
Ann Power Forde1
DOI: 10.4324/9780429023149-2
I have been asked to address you on the issue of âvulnerabilityâ 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 â the State â 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 individualâs human rights.
A new movement in legal philosophy â the âvulnerability movementâ â is now questioning this foundational principle. Inspired by the work of Martha Fineman, the âvulnerability movementâ 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 âautonomy mythâ 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 â but it has its benefits in that it inspires intimacy and makes us âreach out to others, to form relationships, and build institutionsâ.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.
In 2001, the Court first mentioned the concept of âvulnerable groupsâ.4 In this early formulation, the Court identified two factors that pointed towards vulnerability: (i) the applicantâs membership of a minority group (Roma); and (ii) the lack of consideration of its minority lifestyle in the Stateâs decision-making processes. This early articulation of vulnerability had already put in place the elements that would later shape the Courtâs subsequent formulations of âvulnerable groupsâ: membership of a minority group whose vulnerability is partly constructed by broader societal, political and institutional circumstances.
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 âvulnerabilityâ attention from the Court.
Detainees
With mentions of vulnerability in over 236 cases, detainees are identified as by far the most frequently mentioned vulnerable category in the Courtâs 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 âvulnerable positionâ. In Salman v. Turkey, the Grand Chamber noted: â[p]ersons in custody are in a vulnerable position and the authorities are under a duty to protect themâ.7
Because of this vulnerable status of prisoners, substantive and positive obligations on states have been developed to ensure that the prisonerâs 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.
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 personâs detention, and they should be able to account convincingly for any injuries.18 The Court considers that detainees with a mental disorder are âparticularly vulnerableâ. The cases of Stanev v. Bulgaria19 and Murray v. Netherlands20 are particularly worthy of note.