Vulnerable adults – Reflections on the status quo and the way forward

Michael O'Flaherty
FRA Director, Michael O'Flaherty, delivered a speech during a panel debate reflecting on the current situation facing vulnerable adults and the way forward. The Portuguese Presidency of the Council of the EU hosted the high-level conference on protecting vulnerable adults across Europe. It took place on 30 March 2021.

Good morning, Ministers, Commissioner, Chairpersons of the committees of the European Parliament. It is a pleasure to be here. The European Union Agency for Fundamental Rights is very grateful to have been involved in the preparation of this event.

Dear friends, over 10 years ago, I spent 24 months in the justice system. I was a witness in a series of war crimes trials. On seven or eight occasions, I had to spend several days in a courtroom, and on each occasion the experience was similar. I spent some time locked in a closed room with no windows or ventilation.  Then, when I entered the courtroom, I would spend hours in that room testifying. When the time came for the defence lawyers to question me, they would challenge me, saying that I was lying or that I was making things up or forgetting things. Sometimes they posed trick questions and at least twice the judge was arrogant, addressing me with inappropriate words. As a trained and experienced lawyer, I found this situation challenging.

Imagine what it must be like for a vulnerable person. In that context, I have learned that we have to be sensitive to issues of vulnerability in our courtrooms and so I welcome this initiative by the Portuguese Presidency. I welcome the way in which this issue was framed, encompassing both civil and criminal law, with a cross-border dimension. I am pleased to see that we are engaging various types of actors: defendants, plaintiffs, other parties, witnesses, victims of crime.

The concept of vulnerability is framed with respect, including many diverse groups in our society. Its framing realises that the notion of vulnerability relates to the situation the person finds her/himself in and not the person her/himself.

There are two things we must keep in mind during this conference and in our work. Firstly, we must avoid a one-size-fits-all approach, which makes a homogenised presumption of vulnerability. Secondly, we must avoid categories and labels that rob individuals of their inherent agency and dignity.

Allow me to make a few observations that apply to all areas under discussion at this conference. As previous speakers have said, we need to recognise the acquis that already exists, which is relevant: at the UN level, the Convention on the Rights of Persons with Disabilities; at the regional level, not only the EU Charter of Fundamental Rights but also the European Convention on Human Rights.

The importance of the Convention on the International Protection of Adults, the Hague Convention, has already been mentioned. At the European regulatory level, there are regulations concerning the rights of victims in criminal proceedings.

We support the views of Commissioner Reynders, who believes that further improvement of regulations is possible. Also, there are new relevant and innovative initiatives. I would like to flag the European Disability Strategy and the Victims' Rights Strategy.

Now as we proceed with turning the law and strategies into practice across the EU, the European Union Agency for Fundamental Rights can provide direct support in all Member States. For example, with regard to the common implementation of regulations: we see disparities and a lack of common application in the Member States. We can see this at the level of supported decision-making, we see it with regard to the enforcement of protection orders and, let me say it, the failure to enforce protection orders.

Our research at the Fundamental Rights Agency shows that a common bar of vulnerability in judicial systems is needed. We have to make sure that the common bar is not set too high. We must ensure, and this is not the case in many places, that it encompasses mild intellectual and psychosocial disability. Echoing Minister Christine Lambrecht just now, we must acknowledge in setting this bar of vulnerability the way in which intersectional exposure to vulnerability plays out for very many groups.

Finally, as we address issues around vulnerability and address the right to equal treatment in all our justice systems, we have to recognise the need for investment in awareness-raising and training for all professionals in our justice systems.

Dear participants, allow me to include the voice of a vulnerable person. The Fundamental Rights Agency has interviewed hundreds of people in recent research and I wanted to read out what one woman has said. This is a woman who has mental health problems and went through a legal capacity hearing just two years ago.  She said “the judge told me if I appeal there will be an inspection and then more hearings. You can't imagine how many times I have to go to court and when I am in court sometimes the right people don't turn up, sometimes they adjourn the hearing. For me, this is a heavy psychological burden. As soon as I see the courtroom I feel anxious, I wonder what I am doing here, this is horrible – so many people, so many defendants sitting and looking at me. I wonder what they think I'm doing here”.

I'll stop there, with the words from this woman. Hopefully, her words and those of many other vulnerable people will be heard here today at this conference as we contemplate the future.

Thank you very much for your attention.