Navigating the right to a fair trial for vulnerable suspects pretrial: a legal and psychological critique of the Strasbourg jurisprudence

Pretrial criminal processes can prove challenging for suspects with intellectual and psychosocial disabilities. In recognition of this, the European Court of Human Rights has emphasized the importance of individualized assessments of vulnerability under Article 6. Yet, recent Strasbourg jurisprudence reveals a juridical willingness to define vulnerability narrowly with significant implications. This article analyses this jurisprudence to excavate the framing of vulnerability vis-à-vis fair trial rights during pretrial processes. Drawing upon a corpus of psychology and law literature, as well as the dissenting judgment in Hasáliková, it critiques the narrow formulation of vulnerability that has taken hold in Strasbourg and interrogates the Court’s ostensible faith in the safeguarding capacity of lawyers. By using Ireland’s weak pretrial procedural framework as a heuristic lens through which the shortcomings of this approach can be understood, it calls for a more generous conceptualization of vulnerability that is sensitive to the ontological and structural dimensions at play.