5
Detention and people
in situations of vulnerability
▪ This chapter explores developments in the field
of detention and alternatives to detention with
respect to people in situations of vulnerability.
▪ It focuses on select groups of individuals – specifically, children, parents of young children, persons with disabilities and transgender persons.
▪ The discussion on these groups provides examples of how the specific needs of persons in situations of vulnerability can be protected.
The Framework Decision on the ESO and the Framework
Decision on probation and alternative sanctions seek
to encourage alternatives to detention. Detention can
generally have negative effects on detainees, but on
persons in situations of vulnerability the impact can be
greater. As noted in Table 8 in Chapter 2, the recitals of
the three Framework Decisions all stress that refusal
to transfer is possible if there are objective reasons/
indications that a person was punished or may be disadvantaged based on discriminatory reasons, such as
race, sex or religion. Therefore, individuals in situations
of vulnerability should be given particular attention.
This chapter provides an overview of select groups of
individuals who may be in situations of vulnerability.
Public international law obliges states to protect vulnerable individuals. The Preamble to the UN Convention on
the Rights of the Child (CRC), to which all EU Member
States are party, refers to the “need to extend particular care to the child” and notes that the need to afford
special protection to children has been recognised in
various international instruments.175 Article 24 of the
EU Charter of Fundamental Rights also offers strong
protection for the best interests of the child.
175 UN, Convention on the Rights of the Child,
20 November 1989.
Moreover, the UN Convention on the Rights of Persons
with Disabilities (to which the EU itself is also a party)
aims to protect all persons with disabilities’ full enjoyment of all human rights and fundamental freedoms.
Article 13 stipulates that persons with disabilities should
have effective access to justice on an equal basis with
others. States should ensure appropriate accommodations to facilitate their effective role as direct and
indirect participants.176 In addition, Article 26 of the EU
Charter of Fundamental Rights, recognises the right
of persons with disabilities to benefit from measures
designed to ensure their social and occupational integration and participation in the life of the community.
Additionally, in paragraph 44, the European Code of
Police Ethics provides that police personnel shall act
with integrity and respect towards the public and
with particular consideration for people in situations
of vulnerability.177 Finally, the ECtHR has repeatedly
stated that “children and other vulnerable individuals,
in particular, are entitled to effective protection from
the State”.178
This chapter explores legislative and policy developments in the area of detention and alternatives to
detention (pre- and post-trial) with respect to particular suspects/accused or sentenced persons. Many EU
Member States have measures particularly aimed at
people in situations of vulnerability. In focus here are
children, mothers with young children, and persons
176 UN, Convention on the Rights of Persons with Disabilities,
13 December 2006.
177 Council of Europe, Committee of Ministers (2001),
Recommendation Rec (2001)10 of the Committee of
Ministers to member states on the European Code of Police
Ethics, 19 September 2001.
178 ECtHR, X and Y v. the Netherlands, No. 8978/80,
26 March 1985, Series A No. 91, pp. 11–13, paras. 23–24
and 27; August v. the United Kingdom, No. 36505/02,
21 January 2003; Bouyid v. Belgium, No. 23380/09,
28 September 2015.
71
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