JOINT DISSENTING OPINION OF JUDGES TURKOVIĆ AND SCHEMBRI ORLAND

1. We regret that we cannot share the majority’s opinion in the present case that there has been no violation of Article 6 §§ 1 and 3 of the Convention for the following reasons.

2. An expert psychiatric and psychological opinion, drawn up in January 2010, using a wide range of tests, concluded that the applicant had a slight (a more appropriate translation would be “mild”, see paragraph 8 below) intellectual disability (with an IQ of between 64 according to the Raven test and 69 according to the verbal part of the WAIS-R test [1] ), with infantile features and simplistic thinking. According to the experts, she was also very naïve, emotionally immature and easily influenced. As a result, they concluded that at the time of the event her ability to control her behaviour was limited (see paragraph 21 of the judgment).

3. The majority acknowledged that when assessing the impact of procedural failings at the pre-trial stage on the overall fairness of the criminal proceedings the Court’s case law required consideration of whether the applicant was particularly vulnerable, including by reason of mental capacity (see paragraph 67 of the judgment). Thus it is essential that the degree of vulnerability of a person suspected or accused in criminal proceedings, based on his or her mental capacity, is promptly identified and adequately addressed, preferably before the first interview by the police or by an investigating judge [2] . In line with this, the competent domestic authorities must be able to ask an independent expert to examine the degree of vulnerability of the suspect, his or her needs and the appropriateness of any measures taken or envisaged against the vulnerable person [3] .

4. In the present case the domestic authorities ordered an examination of the mental state of the applicant two days after her arrest and first interview by the police (see paragraph 17 of the judgment). The next day, the applicant was interviewed by the investigating judge. The expert report was produced three months later, in January 2010. In the light of the above recommendations this could not be considered sufficiently prompt for a timely identification of her possible special needs and of the appropriateness of any special measures ensuring her procedural rights.

5. Furthermore, although the expert report identified the applicant as a person with an extremely low IQ (see paragraph 2 above) the authorities never required an assessment of the degree of her vulnerability or any special needs she might have in the criminal proceedings. Nothing in the legal framework provided to the Court by the Government and the applicant (see paragraphs 40-41 of the judgment) indicates that the domestic authorities were required to undertake such an assessment. Indeed, the expert reports do not address the applicant’s fitness to be interviewed, her capacity to stand trial, any special needs she might have, or the appropriateness of any measures due to her intellectual disability. The thrust of the expert report sought merely to establish whether the applicant could distinguish right from wrong, and thus be held responsible for the crime she had allegedly committed, which is a separate and distinct investigation from that of determining fitness for the interview and capacity to stand trial.

6. The majority failed to recognise that at the domestic level, although the applicant was identified as a person with an extremely low IQ, and thus as a person with intellectual disability, no further assessment of her capabilities to understand, adequately follow and participate in the criminal proceedings against her had been undertaken. Consequently, she was not provided with any procedural guarantees that would counterbalance her disability.

7. Instead of problematising these shortcomings, the majority opted not to treat the applicant as a particularly vulnerable person (see paragraph 69 of the judgment), relying on the fact that her disability was categorised as slight/mild, that she was not suffering from any mental illness or disorder, that she had been able to recognise the dangerousness of her actions and foresee their consequences and that she was an adult and literate (see paragraph 68 of the judgment). The majority came to this conclusion even though at domestic level experts never opined on the applicant’s ability to function within the criminal proceedings.

8. None of the reasons provided by the majority are convincing and some are indeed irrelevant. The fact that her disability was categorised as slight/mild does not mean that she was not particularly vulnerable. According to the American Psychiatric Association’s Diagnostic and Statistical Manual on Mental Disorders (5th ed. 2013) intellectual disability is categorised into four levels of severity: mild, moderate, severe, and profound. The majority of people with intellectual disabilities (about 85%) fall within the category of “mild”. Individuals with mild intellectual disabilities tend to fall in the IQ range of anywhere from 50 to 70. While individuals with mild intellectual disabilities may be able to work in jobs that do not emphasise conceptual skills, they generally require support in conducting complex daily living tasks and making decisions regarding health or law (ibid.) Indeed, the applicant attended a special school and she is in receipt of a disability pension. She claimed that her physical defect was clearly visible and that her intellectual disability was clearly evident from any conversation with her (see paragraph 35 of the judgment). The experts described her as a person with infantile features and simplistic thinking, very naïve, emotionally immature and easily influenced (see paragraph 2 above).

9. The fact that she was not suffering from any mental illness or disorder should be irrelevant for assessing the consequences of her intellectual disability [4] . Though many individuals suffer from both conditions, these conditions are separate. In the criminal justice context, they may pose different challenges. The Court has already acknowledged intellectual disability itself as a ground for particular vulnerability (see A.-M.V. v. Finland , no. 53251, § 73, 23 March 2017).

10. While a person with intellectual disability might understand his or her actions resulting in murder and foresee the consequences thereof (and thus his or her state of mind may satisfy the mental element of the offence), it might be far more difficult for him or her to navigate through intricate rules of criminal procedure which “tend to become increasingly complex, notably with respect to the rules governing the gathering and use of evidence” (see Salduz v. Turkey , no. 36391/02, §54, 27 November 2008). Persons with intellectual disabilities may struggle to understand the full implications of various procedures and processes involving arrest and detention; of the exercise of their rights and entitlements; the significance of what they are told, of the questions they are asked or of their replies; or may be prone to become confused and unclear about their position; may struggle to communicate effectively; and may be suggestible or compliant [5] . Thus the criteria that are used to establish capacity for criminal responsibility are not the same as the criteria that should be used to establish eligibility for additional procedural protection for persons with intellectual disabilities. In short, the fact that the applicant was capable of understanding her alleged actions and of foreseeing the consequences thereof does not necessarily mean that she was capable of functioning adequately in criminal proceedings.

11. As the majority themselves acknowledged (see paragraph 67 of the judgment), in Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, § 273, 13 September 2016) and Beuze v. Belgium ([GC], no. 71409/10, § 150, 9 November 2018) it was further clarified that a person involved in criminal proceedings may be particularly vulnerable not only by reason of his or her age, but by reason of his or her mental capacity as well. Thus adult suspects or defendants with intellectual disabilities may fall within the category of particularly vulnerable persons and the fact that the applicant in the present case was not a minor is irrelevant to her eligibility for additional procedural protections due to her intellectual disability (see, a contrario , paragraph 68 of the judgment).

12. The expert report in the present case was not intended, and did not address, how the applicant’s intellectual disability could have affected her ability to fully comprehend the implications of the questions asked, whether her replies would represent a rational and accurate explanation of her involvement in the commission of the offence, or whether she could understand the evidence and adequately instruct a lawyer and communicate with the court. Indeed, according to the record of the hearing held on 27 September 2010, at which the expert in psychology was present to give his oral testimony, he intervened in the applicant’s examination in order to rephrase a question asked by the prosecutor because in his view the question could not be understood by the applicant (see paragraph 29 of the judgment). However, the applicant was never afforded a pre-trial hearing to determine the degree of her vulnerability due to intellectual disability. Domestic judges never determined the applicant’s eligibility for additional procedural protection although it was established that she was a person with significant sub-average intellectual functioning (IQ below 70) accompanied with limitations in adaptive functioning. Thus, the majority did not have the proper premises on which to base their conclusions in relation to her vulnerability.

13. In our view the Court should presume particular vulnerability of a person with intellectual disability as long as the domestic authorities have not proven otherwise.

14. Research confirms that persons with intellectual disabilities are at a higher risk of wrongful conviction because they are less able to enlist legal the assistance and support of others, to give meaningful assistance to their counsel and are typically poor witnesses, risking false confessions; and their demeanour may create an unwarranted impression of lack of remorse for their crimes. They are vulnerable to exploitation by co-defendants. They are especially likely to fall into the category of defendants who had some factual involvement in the crime(s) of which they were convicted, but were guilty of only some of those crimes, or of a less aggravated crime [6] .

15. For all these reasons both the Council of Europe and the EU have paid special attention to suspects with mental issues. Accordingly a Green Paper [7] proposed, among eight groups of potentially vulnerable suspects and defendants, persons suffering from a mental or emotional handicap, in the broadest sense, while the Resolution on a Roadmap for Strengthening Procedural rights of suspected or accused persons in criminal proceedings [8] specifically dedicated measure E to suspected or accused persons who could not understand or follow the content or the meaning of the proceedings including because of a mental condition [9] . The Directive on the right of access to a lawyer emphasises that member States should ensure that the particular needs of vulnerable suspects and vulnerable accused persons are taken into account in the application of the Directive [10] . The Recommendation of 27 November 2013 [11] specifically elaborates upon the procedural rights of vulnerable persons in criminal proceedings.

16. The judgment does not refer to any of these documents and it disregards their recommendations as well as the research done in this area.

17. Persons with intellectual disabilities must, when eligible, be provided with additional procedural protections such as: counsel (appropriate adult) or advocate with training in intellectual disabilities, videotaping of their interviews to allow the judge to better determine the credibility and voluntariness of confessions made by suspects with intellectual disabilities, precluding convictions in the absence of corroboration, placing limits on plea bargaining. The procedural rights granted to vulnerable persons should apply from the time they are suspected of having committed an offence and should be respected throughout the criminal proceedings taking into account the nature and degree of their vulnerability [12] .

18. The appellate court confirmed the judgment, making reference to the “applicant’s testimonies collected in a lawful manner and her full and free confession ... and that all her interviews had taken place in her counsel’s presence”. As demonstrated below, in doing so the appellate court completely disregarded the above listed safeguards.

The applicant was not even given half an hour, as prescribed by law, a period which itself is excessively short, to find a lawyer of her own choosing (see paragraph 11 of the judgment). She was hardly given any time to consult with the legal aid lawyer prior to her first interview with the police, which is contrary to the principles reaffirmed in Dvorski v. Croatia ([GC], no. 25703/11, § 106, ECHR 2015) where the Court emphasised that in this context regard should also be had to the requirement in Article 6 § 3 (b) that an accused should be afforded adequate time and facilities for the preparation of his or her defence.

19. Moreover, it appears that none of applicant’s lawyers had training and experience in intellectual disabilities, and that she was not assigned an appropriately trained adult that could help her to interact with the authorities and exercise her rights effectively. In this case, once the authorities had failed to react appropriately to her obvious intellectual difficulties, the legal aid advocate did not see fit to raise what would have been a legitimate query concerning her intellectual impairment and the evidential value of her statement. Not only that, but her subsequent lawyer did not even consider it necessary to question the preceding events and request reopening [13] ; or request a separate psychiatric/psychological assessment into her fitness for questioning and/or her capacity to stand trial, once the authorities themselves had failed to do so. In such circumstances, the capabilities of the defendant to ascertain and understand his/her position comes into play. It is true that the role of the defence lawyer should be to secure the guarantees against self-incrimination and of a fair trial. However, in this case, the vulnerability of the accused was not counter-balanced by appropriate action on the part of her advocate. Rather, it was exacerbated by his inaction. This only serves to confirm the importance of providing a suspect with intellectual disability with appropriate assistance and support from the very beginning of criminal proceedings, which includes court-appointed counsel or other professionals (legal guardian, psychologist, social worker or educational professional) who have training and experience working with a wide spectrum of individuals with intellectual disabilities. In this context we recall that the Court has, on numerous occasions, underlined the importance of the investigation stage for the preparation of the criminal proceedings, as the evidence obtained at this stage determines the framework in which the offence charged will be considered at the trial (see Salduz , cited above, § 54).

The applicant signed a statement saying that the pre-printed information as to her rights had been explained to her and that she had understood it. She also confirmed that she understood the charges but waived her right to challenge them. Of particular significance is the fact that the applicant waived her right to remain silent. Yet we have no evidence that she was capable of understanding the concept of the right to silence, or the privilege against self-incrimination or any other rights explained to her. These were not the object of the expert assessment, which, in any case, did not pre-date the first interview where she signed the waiver. In addition, as already mentioned, there is no indication that the police conducting the interview were specialised in dealing with persons who lacked adequate intellectual capacity or had received specific training to interact with them, to recognise special problems they might encounter and to assess the level of their understanding [14] .

20. Furthermore, whilst admitting that she was present during the killing, the applicant stated she had not participated in it. She changed her version during the interview and also in later proceedings, claiming that she was forced to participate under duress. She went on to give conflicting statements which proved to be self-incriminating. The experts stated that during her examination the applicant had first denied the events but later confessed to them, had been insincere, had kept changing her statements and had naïvely feigned memory disorders (paragraph 21 of the judgment). The majority failed to properly address her changing testimony, presuming that this showed she was lying. The applicant’s mental impairment and its impact on the probatory force of her confessions were not duly considered by the domestic courts, nor by the Chamber. It must be said that the high risk of false confessions is supported by a variety of empirical evidence. Persons with intellectual disability cannot remember facts as well as persons without such disability. They have a strong desire to please figures of authority and are easily tricked by questions. Indeed, it is recalled that the experts established that the applicant was a person with infantile features and simplistic thinking, being naïve, emotionally immature and easily influenced.

21. In addition, the authorities failed to inform the applicant about the plea-bargaining procedure and thus the applicant’s lawyer failed to participate in it. As a result, the authorities failed to protect the applicant from possible exploitation by her co-defendant, who during the plea bargaining proceedings put the main blame on the applicant. He subsequently committed suicide. The authorities and the majority disregarded the contention that the prevention of a miscarriage of justice, brought about by the exploitation of the weaknesses of one co-defendant, necessitates that limits should be placed on the plea-bargaining process in the shadow of intellectual disability. In our view, in such circumstances, entering into plea bargaining should be pre-approved by the judge and the presence of a lawyer of the co-defendant with intellectual disability should be mandatory.

22. Finally, according to the trial court, the applicant’s guilt had been proven mainly by the co-defendant’s testimony and her repeated confessions without any regard being given to the absence of corroboration. An examination of the remaining evidence shows that it was circumstantial at best. Also, as regards the reliability of her confessions, given her intellectual disability, it is arguable that the threshold of determining the concept of voluntariness of the confession is lowered to a considerable degree. To be complete, an act of volition must not only be free from coercion but must also be performed with a sufficient degree of understanding.

23. It is our opinion that, in circumstances where the domestic authorities have established that the applicant is a person with intellectual disabilities, the failure to assess the applicant’s vulnerability at both the pre-trial and trial stage, for the purposes of her fitness and capacity to be interviewed and stand trial, should have been given weighty consideration by the Court and should have led the Court, when the domestic authorities had not demonstrated otherwise, to assume that she was particularly vulnerable for the purposes of a fair trial assessment.

24. In such circumstances, in our view, there was a breach of Article 6 because there were no adequate procedural safeguards in place to counterbalance the applicant’s lack of adequate intellectual capacity, nor was the absence of such safeguards given due consideration by the domestic courts in determining the admissibility of the statements made by the applicant, or at the very least, their evidential value, and in reaching their finding of guilt. All these deficiencies are particularly important in the case of serious charges, for it is in the face of the heaviest penalties that respect for the right to a fair trial is to be ensured to the highest possible degree by democratic societies (see Salduz , cited above, § 54).

25. In the light of the foregoing, we cannot concur with the conclusion of the Court, in paragraph 69 of the judgment, to the effect that:

“[i]n these circumstances, the Court does not consider that there were sufficient indications requiring the authorities to consider the applicant a particularly vulnerable person and make appropriate adjustments (compare O’Donnell v. the United Kingdom , no. 16667/10, 7 April 2015, where the judge refused to absolve the applicant, with an IQ of 62, of giving evidence because of his mental condition and directed the jury to draw adverse inferences from the applicant’s decision not to testify).”

26. The comparison with O’Donnell v. the United Kingdom (no. 16667/10, 7 April 2015) is not opportune. In that case there were not one, but two assessments on the capacity of the defendant to give evidence subject to certain safeguards. Furthermore, the trial judge allowed the presentation of evidence to the jury as to the applicant’s intellectual capacity and the effects that this might have on his ability to give evidence on his own behalf. These considerations were also reflected in the judge’s instructions to the jury. This was not the case in the current matter at hand. On the contrary, in the present case the applicant, a person with established intellectual disability, was neither examined as to her eligibility for additional protection, nor afforded any additional protection due to her disability.

27. From all of the above it follows that the Court’s case-law on the participation of a suspect or defendant with intellectual disability in criminal proceedings is underdeveloped. The Chamber’s reliance on O’Donnell should have led to a different outcome, as argued above. Regrettably this case represents a missed opportunity to properly identify the procedural safeguards required in these circumstances and to set proper standards to ensure procedural fairness for such suspects or accused persons.

[1] Such an IQ is approximately equivalent to the mental age of a nine to ten-year-old child.

[2] See EU Commission Recommendation of 27 November 2013 on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings (2013/C 378/02) (hereinafter “Recommendation of 27 November 2013”), preamble, point 6.

[3] Ibid.

[4] Intellectual disability is often confused with mental illness, but an intellectual disability is not an illness. Whereas people with mental illness often suffer temporary, cyclical or episodic disturbances in their thought process and emotions, individuals with intellectual disabilities have limited abilities to learn and socialise with others.

[5] These are, for example, some of the criteria listed in Home Office, Code C, Revised Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers (TSO, London 2018), para. 1.13(d) for recognising as vulnerable adults with mental illness or intellectual disability.

[6] Blume, John H., Sheri, Lynn and Millor, Susan E., Convicting Lennie: Mental Retardation, Wrongful Convictions, and the Right to a Fair Trial , pp. 947-58 (2012), Cornell Law Faculty Publications, Paper 603.

[7] Green Paper from the Commission on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union, COM (2004) 328 final, 28 April 2004.

[8] OJ 2009, C 295/1.

[9] Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (Annex, Measure E).

[10] Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, see Article 13.

[11] Recommendation cited above.

[12] See, supra note 2, Articles 2-17.

[13] “…..the applicant’s counsel expressly stated that he was not asking for the activities carried out before he had taken over the applicant’s representation to be repeated, but for the prosecutor to discontinue the prosecution because the evidence available did not, in his view, prove her guilt” (paragraph 23 of the judgment).

[14] See, supra note 2, point 17 and Article 17.