Vulnerable person status Assistant Professor Paula Poretti Ph

Vulnerable person status ◦ Assistant Professor Paula Poretti, Ph. D ◦ Faculty of Law J. J. ◦ Strossmayer University of Osijek

VULNERABLE PERSON ◦ Vulnerability is a very dynamic concept, and hence the term „vulnerable persons“ is very difficult to define ◦ Vulnerability is inherent to human nature – it arises from different aspects of human condition, such as ◦ Potential harm /change in circumstances – due to ageing or rearrangements in society ◦ Example elderly people/migrants/asylum seekers ◦ Perspective of being dependent – disease or disability ◦ Example invalids, children

◦ National/religious identity – sense of belonging to a nation/religion while living in a country other than the country of origin ◦ Example minority groups, Roma ◦ Financial problems ◦ Example unemployed, single-parent families, poor people ◦ Vulnerable people are defined as does who do to reasons of age, gender, physical or mental state or due to social, economic, ethnic and/or cultural circumstances, find it especially difficult to fully exercise their rights before the justice system as recognised to them by law. The following may constitute causes of vulnerability: age, disability, belonging to indigenous communities or minorities, victimisation, migration and internal displacement, poverty, gender and deprivation of liberty (Brasilia Regulation Regarding Access to Justice for Vulnerable People, 2008)

◦ A possible approach (due to the fact that every person can potentially be considered as vulnerable) is to narrow-down specific groups of people ◦ The term „vulnerable persons“ - in the broadest sense - comprises all possible groups of vulnerable persons ◦ The term „vulnerable persons“- in the narrow sense - includes specific group of persons who do to certain reasons find it hard to exercise their rights ◦ Fundamental rights protection of vulnerable persons at EU level ◦ Case law of the ECHR /European Social Committee ◦ Council of Europe and EU instruments as foundation for the recognition of groups of vulnerable persons in the society and cooperation at EU level in their protection

◦ The concept of vulnerability in ECHR jurisprudence is still vague – it was considered in separate cases concerning minors, race, Roma population and people with mental disabilities ◦ Recently: vulnerability of elderly people (Heinisch v Germany 28274/08) ◦ ECHR not focused on identification of particular circumstances of vulnerability ◦ Instead it considers belonging to minority + history of prejudice and stigmatisation ◦ The concept of vulnerability in EU instruments – implicitly present ◦ Through main policies – integration of the single market - freedoms for the: migrant workers; asylum seekers, unaccompanied children ◦ Important questions: ◦ Is there a framework/are there criteria for vulnerable persons? – in which way do they influence legislation at EU level – cooperation between MS?

I. Inherent vulnerability ◦ Socially construed as vulnerable based on their physical condition- children and the elderly people – disproportionate need of support from the family or the state ◦ Different circumstances depending on the gender, race and class but no categorisation of vulnerable individuals or genuinely vulnerable groups within the ECHR case law ◦ Elderly people – vulnerability emanates from social treatment and not from deficiencies or differences in their capabilities ◦ People with disabilities – the case law of the CJEU- reduction of the term and the protection to market participation and employment – ◦ Instead of granting a higher level of legal protection for the vulnerable groups it seems that the EU policy and case law reduces their rights and contributes to their marginalisation

◦ Women – vulnerability does not arise out of their biological inferiority but it is a result of genderbased abuse and violence, sex discrimination ◦ EU intervention from solely the economic sphere ◦ to the recognition of fundamental right of equality enshrined in CJEU case law and the Charter of the Fundamental Rights of the EU ◦ and the fight against violence ◦ yet the recent statement in Brussels: „A Member of the European parliament from Poland (Janusz Korwin-Mikke) says that “women are smaller, weaker and less intelligent and should earn less than men!”

II. Minorities ◦ No uniform definition; characteristics of these communities deserve protection and promotion / however, a long tradition in Europe and very important for the development of human rights instruments ◦ A difficult task of ensuring the same level of protection and equality to other nationals of the State and respecting their specific characteristics ◦ A group numerically inferior to the rest of the population, in a non-dominant position. . . possessing distinct ethnic, religious or linguistic characteristics and showing a sense of solidarity aimed at preserving those characteristics. . . ◦ (The Special reporter of the UN sub-commission on the ◦ prevention of discrimination and protection of minorities)

III. Non-nationals ◦ “The situation in which migrants frequently find themselves due to the absence from their own State of origin and the difficulties they encounter because of difference in language, custom and culture” ◦ No right to nationality in ECHR / but at the same tome EU citizenship although not citizenship in a traditional sense – is of highest value ◦ Asylum-seekers – vulnerability as long as their status is not determined

IV. Victims of illegal acts ◦ Victims – persons who are usually vulnerable due to ◦ age, ◦ physical or mental condition ◦ or otherwise particularly susceptible to criminal conduct ◦ – in relation to the inherently vulnerable people – exposure to the violence/discrimination/

V. Circumstantial vulnerability ◦ Vulnerability caused by particular and temporary circumstances/socially vulnerable ◦ The public authority has a lack of interest and concern as it perceives that ◦ individual choice is in the foundation of their situation ◦ Example: ◦ Prisoners-protection from inhuman and degrading conditions ◦ Poor- income poor “not necessarily uneducated, untrained or socially excluded”

◦ Two main problems: ◦ 1. No binding regulation - only the Hague Adult Protection Convention (Hague Convention) of 13 January 2000 ◦ 2. Protection through the court – for specific cases / inconsistent ECHR/ Council of Europe ◦ Draft report with recommendations to the Commission on the protection of vulnerable adults (2015/2085(INL)) ◦ Concerns protection of vulnerable adults as a cross-border issue/human rights issue ◦ Vulnerable persons are holders of rights/not merely recipients of care and help ◦ Difficult to obtain right to free movement

Differences between MS concerning jurisdiction, applicable law and the recognition and enforcement of protection measures for the vulnerable people ◦ Regulation 1215/2012 (Brussels I bis) - excludes the status and legal capacity of natural persons ◦ Hague Convention – international legal rules to resolve cross-border issues of vulnerable personsratified by only few MS - this is compromising for the protection of vulnerable persons ◦ Hague Convention - rules on jurisdiction, applicable law and international recognition and enforcement of protective measures – only seven MS ◦ Austria, Czech Republic, Estonia, Finland, France, Germany, and the United Kingdom with respect to Scotland only+ Monaco, Switzerland ◦ only signed by Cyprus, Greece, Ireland, Italy, Luxembourg, the Netherlands and Poland

◦ The aim: ◦ facilitate the circulation, recognition and enforcement by Member States’ authorities of protection measures for a vulnerable adult taken by the authorities of another Member State, and to enhance communication and cooperation between Member States in this regard; ◦ Information on national legislation concerning incapacity and protection of vulnerable adults should be made more accessible to citizens so that they can obtain that information and make informed decisions;

◦ the limited geographical scope, especially with a view to recognition and enforcement; ◦ the absence of a supranational court for solving disputes arising from different interpretations of the Hague Convention; ◦ the poor cooperation and communication among the authorities of Contracting States; ◦ the difficulty in enforcing foreign protective measures; ◦ the weak means by which evidence of the powers granted to a representative of a vulnerable adult are to be provided abroad; ◦ the absence of any possibility for an adult to choose in advance the State whose authorities should have jurisdiction over his or her protection; and ◦ the lack of rules providing for the 'continuing jurisdiction' of the authorities of the State of former habitual residence of the adult

◦ On the European level, instruments relevant in the context of the protection of vulnerable adults: ◦ Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (hereinafter Rome 1 Regulation) ◦ Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and enforcement in civil and commercial matters (recast) (hereinafter Brussels I Recast) ◦ Regulation (EU) No 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters (hereinafter Protection Regulation) ◦ Regulation (EU) No 650/2013 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance of authentic instruments in matters of succession and on the creation of an European Certificate of Succession (hereinafter Succession Regulation) ◦ do not specifically relate to the problems and issues that arise in connection with the protection of vulnerable adults

Concluding remarks ◦ Necessary EU legislative action ◦ Recommendation to the Commission on cross-border implications of the legal protection of adults (2008/2123/(INI)) on the 18 th December 2008 ◦ enhancing cooperation and communication among authorities of EU Member States; ◦ abolishing the exequatur requirement for measures of protection taken in an EU Member State; ◦ creating a European certificate of powers granted for the protection of an adult; ◦ enabling the adult to choose the EU Member State whose courts should be deemed to possess jurisdiction to take measures directed at his or her protection; ◦ providing for the continuing jurisdiction of the courts of the EU Member State of the former habitual residence

◦ Thank you for your ◦ attention!