Rethinking effective participation as a gateway to human rights for vulnerable persons

The right to effective participation, as part of the right to a fair trial under the European Convention of Human Rights, provides a legal framework for rethinking procedural fairness for vulnerable persons in police investigations. The police investigation is the juncture of greatest vulnerability both in terms of procedural unfairness and risks to well-being. The European Court of Human Rights has provided extensive guidance on effective participation in the often-overlooked judgment in Blokhin v Russia and the case law that it consolidates. This paper critically evaluates this jurisprudence to question whether international human rights law can provide a legal framework for protecting vulnerable persons. The approach uses a doctrinal methodology to interpret the cases using United Nations’ guidance (including the Mendez Principles), European Union law, Council of Europe norms and proposals from the Law Commission of the UK for defining effective participation. The findings identify flaws in the narrowness of the scope of vulnerability and in assistance offered. These limitations are then used to propose a systematic redefinition of effective participation for the pre-charge stage. The new definition develops and melds the case law with international norms and law to suggest eight areas where effective participation can be conceptualised as an ability to exercise procedural rights. This proposal shows how to address gaps and inconsistencies in international law by providing a basis for defining vulnerability as an inability to exercise rights. As such, it repositions effective participation as a necessary precondition for exercising procedural rights.