The Institute of Vulnerability in the Time of Covid-19 Pandemic: All Shades of the Human Rights Spectrum

Abstract

The vulnerability thesis is one of the most important legal concepts in contemporary legal theory. Apart from being studied by legal scholars, the notion of vulnerability has been embodied in concrete legal rules and transferred to national case law allowing courts to set its boundaries by the power of judicial interpretation. Even though it would be hard to contest Schroeder and Gefenas’s statement that it is not necessary for an academic to say what vulnerability is because common sense dictates the existence of it, recent scholarly analysis clearly shows that the concept itself has become intolerably vague and slippery. More precisely, it is not quite clear what the essence of vulnerability is and what the effects of its gradation as well as repercussions are on other constitutional institutes across the human rights spectrum. The noted vagueness poses a great concern, particularly in the time of COVID-19, the greatest social stressor that humanity has faced in recent months. The COVID-19 crisis has had untold consequences on our health, mental well-being, educational growth, and economic stability. In order for the state to bear the COVID-19 social burden and adequately protect the vulnerable, it is of the utmost importance to set clear guidance for the interpretation and implementation of the vulnerability concept. Seeking to contribute to literature on these issues, the author brings light to constitutional and criminal legal standards on vulnerability set within the current jurisprudence and doctrine. Bearing in mind the influence of the European Court of Human Rights (hereinafter, the ECtHR or the Court) on developments in human rights law, 196 judgments related to vulnerability have been retrieved from the HUDOC database using a keywords search strategy. The quantitative analysis was supplemented with more in-depth qualitative linguistic research of the Court’s reasoning in cases concerning vulnerable children, persons suffering from mental illness and victims of family violence. Although the vulnerability reasoning has considerably expended their rights within the ambit of the Convention, the analysis has shown that inconsistencies and ambiguities emerge around the formulation of the applicant’s vulnerability and its gradation with respect to positive obligations. The full creative and transformative potential of the institute of vulnerability is yet to be realized.

Violence against children in family settings during the COVID-19 outbreak in Croatia

“…Involving children in such a scientific research endeavour raises a number of ethical issues related to their vulnerability, autonomy, and ability to give informed consent. 32 Lott stresses that child participation in research deserves a special consideration because of a troubling paradox. On the one hand, children belong to a group of already disadvantaged individuals susceptible to harm and exploitation, and on the other, they are attractive for research purposes precisely because of their vulnerability.…”

The role of civil society in a time of pandemic

“…23 Their role becomes even more essential during crisis situations, such as the outbreak of COVID-19 and lockdown when many facilities were closed and their users were unable to obtain the necessary information. 24 Their work is based primarily on the knowledge, skills and experiences they develop in everyday work with users and the so-called "personcentred approach". 25 For them, at a time of great social stressors that cause a stalemate in the work of traditional, state aid systems, and services to victims of crime and misdemeanours, this is certainly an advantage that is not easy to find in any other type of institution.…”

COVID-19 and criminal justice

“…Criminal law becomes an instrument for the protection of victims' rights; 38 precisely in this sense, the first obligation of internal authority is to conduct full and effective investigations, 39 able to frame the facts and identify the potential perpetrators, with reference to the risk of a real and immediate threat to victims. 40 In this reasoning, the reference to the Istanbul Convention is evident: 41 Article 49 provides that states shall take necessary measures to ensure that investigations and judicial proceedings on all forms of violence are carried out without undue delay while taking into consideration the rights of victims during all states of criminal proceedings.…”