Right to Fair Trial

II. Right to a Fair Trial of Vulnerable Groups (Children and Persons with Intellectual Disabilities)

The Constitution provides that a person whose constitutional rights or liberties have been infringed must be granted access to justice.[1] The Law on Courts establishes that each person possesses the right to judicial remedy against any encroachment on the rights and freedoms provided for in the Constitution, in acts of law or international agreements, and also that all are equal before the law and the courts.[2]

Due to negative public attitudes towards persons with mental disorders or disabilities, there is an underlying presumption among pre-trial investigation officers, probation service workers as well as police psychologists that children with intellectual disabilities or mental disorders must automatically be treated as unreliable witnesses.

Without legal capacity, persons under 18 years of age are unable to directly defend their own rights, and as such their rights are protected and they themselves are represented by their parents, other legal representatives or the state. Children with mental illnesses or disabilities are even more limited with regard to participation in legal proceedings – as such, there are quite a few problems in practice when trying to ensure that children with mental illnesses or disabilities are able to enjoy the right to a fair trial in Lithuania.

According to the data from the Ministry of Social Security and Labour, there were 15,036 children with disabilities in Lithuania in 2013, with 35% of them being children with mental or behavioural disorders.[3]

The law provides that persons (including children) suffering from mental illness or disability are provided with free state-guaranteed primary and secondary legal aid.[4] However, in practice it often happens that state-guaranteed legal aid is difficult to access for persons suffering from mental illness or disability. Legal aid is even harder to access for residents of social care homes that suffer from mental illnesses or disabilities: social care institutions are found in remote locations, outside the community, and the mobility of their residents is restricted.[5] Furthermore, institutionalized children are often not informed about appeals procedures and the availability of legal aid.

Practice shows that the quality of state-guaranteed legal aid available to disabled or mentally ill children is questionable: lawyers often lack basic knowledge on how to interact with disabled or mentally ill children; there are even cases of prejudice towards the child.[6]

The child's participation in legal proceedings is itself limited in most cases: often, the child's own opinion is ignored and consideration is only given to the position of the child's representative (guardian) or lawyer, or the opinion prepared by Child Rights Protection Service specialists or psychologists. These specialist opinions are often prepared without regard for the proper participation of the child in such proceedings. The ability of children suffering from mental illness or disability to participate in proceedings is even more limited.[7]

Legal aid is even harder to access for residents of social care homes that suffer from mental illnesses or disabilities: social care institutions are found in remote locations, outside the community, and the mobility of their residents is restricted.

Specialists working in other areas of the juvenile justice system – researchers, prosecutors and judges – are also lacking competence when it comes to the exercise of the rights of children with mental illnesses or disabilities.

Due to negative public attitudes towards persons with mental disorders or disabilities, there is an underlying presumption among pre-trial investigation officers, probation service workers as well as police psychologists that children with intellectual disabilities or mental disorders must automatically be treated as unreliable witnesses. According to officers taking part in these interviews, children with mental disorders or intellectual disabilities are prone to later changing their initial statement – therefore, one way or the other, they cannot be considered to be reliable witnesses.[8] Unfortunately, what is completely ignored is that when children are interviewed improperly, the accuracy of their evidence suffers not due to their lack of ability, but due to the improperly conducted interview.

Due to the peculiarities of their development and cognitive abilities or the trauma they have experienced, children are considered to be special witnesses in legal proceedings. It is therefore both appropriate and necessary to conduct interviews with children in facilities adapted for that purpose – in child interview rooms. Over 40 child interview rooms have been established on the premises of non-governmental organizations, police headquarters and courts in Lithuania.[9] Most child interview rooms are not adapted to the needs of the child – the facilities are often cramped, uncomfortable, full of unnecessary things that draw away children's attention, distracting them. Some rooms have unsuitable audio recording equipment and microphones installed in them, and as such it sometimes happens that children are asked to repeat themselves several times.[10] It should be noted that the repetition of evidence carries with it a great risk of distortion – children empathize with the feelings and expectations (as they are subjectively understood) of adults, which is why, in order to gain the approval of the adult, they often change their statement when asked to repeat it – or renounce it altogether, especially when the interviewer is being emotionally cold or even hostile.

The state does not organize training for specialists on interviewing children during pre-trial investigations or trials themselves. Currently, such training is only available through NGOs, but it is not compulsory for interrogators, prosecutors or judges.[11]

The expert potential of Lithuanian NGOs today enables them to provide very important services to children in legal proceedings – for example, to organize and conduct interviews with children, provide psychological consultation or crisis intervention services. However, in practice, this potential is not put to use: there are no established procedures for NGO involvement, no outline of potential services or set rules for procuring them from the NGO sector. Furthermore, since NGOs notice and deal with a fair few instances of violations of children's rights, it is important to promote the ability of NGOs to represent children within the legal system.

Statistical data gathered on child victims in Lithuania can only reveal the gender and age of a child, without any data being collected on the disabilities of children.[12]

Findings and Recommendations

  • In order to ensure access to justice for children with mental disorders or disabilities in Lithuania, it is necessary to:
  • Implement systemic reforms in the field of child representation, ensuring that children's choices and opinions are heard properly and that they are provided with appropriate legal representation.
  • Collect statistical data revealing information on the participation of children with mental disorders or disabilities in legal proceedings, on their participation, interviews and consideration of their opinion.
  • Provide training for judges, pre-trial investigation officers, lawyers and advocates on the subject of the proper exercise of the right to a fair trial of children with mental disorders or disabilities.
  • Ensure that NGOs are able to represent children within the legal system and to otherwise involve children in legal proceedings.

[1] The Constitution, 25 October 1992, Article 30(1), http://www3.lrs.lt/home/Konstitucija/Konstitucija.htm

[2] Law on Courts, 31 May 1994, No. I-480, Articles 4(1) and 6(1), http://www3.lrs.lt/pls/inter3/dokpaieska.showdoc_l?p_id=493976

[3] Ministry of Social Security and Labour, "Indicators Showing the Social Integration of the Disabled in the Sphere of Social Security", 2013, p. 1,

http://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CB8QFjAA&url=http%3A%2F%2Fwww.ndt.lt%2Ffiles%2FFile%2Fstatistika%2F2013%2Fsocialines%2520imtegracijos%2520rodikliai.docx&ei=jT6IVIXoJ8fZapabgYgO&usg=AFQjCNHEK9iO2qBlLlf8ZfsI07NmBX1vug&sig2=JG6CIE0qDlMHj2Lphlcuww&bvm=bv.81456516,d.d2s

[4] Edita Žiobienė, Dovilė Juodkaitė, "Agency for Fundamental Rights Research Project on the Rights of Persons with Intellectual Disabilities and Mental Health Problems in Lithuania", 2011, http://fra.europa.eu/en/country-report/2012/country-thematic-reports-fundamental-rights-persons-intellectual-disabilities

[5] Mental Health Perspectives, "The Right to Fair Trial of Children With Mental Health Disorders or Disabilities in Administrative, Civil or Criminal Law in Lithuania: Summary of the Report on the International Study", 2014, p. 14,

http://www.perspektyvos.org/xinha/plugins/ExtendedFileManager/demo_images/MDAC_ataskaita_20140822.pdf

[6] Mental Health Perspectives, "The Right to Fair Trial of Children With Mental Health Disorders or Disabilities in Administrative, Civil or Criminal Law in Lithuania: Summary of the Report on the International Study", 2014, p. 14, http://www.perspektyvos.org/xinha/plugins/ExtendedFileManager/demo_images/MDAC_ataskaita_20140822.pdf

[7] Mental Health Perspectives, "The Right to Fair Trial of Children With Mental Health Disorders or Disabilities in Administrative, Civil or Criminal Law in Lithuania: Summary of the Report on the International Study", 2014, p. 15, http://www.perspektyvos.org/xinha/plugins/ExtendedFileManager/demo_images/MDAC_ataskaita_20140822.pdf

[8] Mental Health Perspectives, "The Right to Fair Trial of Children With Mental Health Disorders or Disabilities in Administrative, Civil or Criminal Law in Lithuania: Summary of the Report on the International Study", 2014, p. 11-12., http://www.perspektyvos.org/xinha/plugins/ExtendedFileManager/demo_images/MDAC_ataskaita_20140822.pdf

[9] Children Support Centre, "Child Interview Rooms Established in Lithuania", 2011, http://www.vaikystebesmurto.lt/lt/kai-tu-vykdai-apklausas/vaik-apklausos-kambariai-lietuvoje

[10] Mental Health Perspectives, "The Right to Fair Trial of Children With Mental Health Disorders or Disabilities in Administrative, Civil or Criminal Law in Lithuania: Summary of the Report on the International Study", 2014, p. 13, http://www.perspektyvos.org/xinha/plugins/ExtendedFileManager/demo_images/MDAC_ataskaita_20140822.pdf

[11] Mental Health Perspectives, "The Right to Fair Trial of Children With Mental Health Disorders or Disabilities in Administrative, Civil or Criminal Law in Lithuania: Summary of the Report on the International Study", 2014, p. 12, http://www.perspektyvos.org/xinha/plugins/ExtendedFileManager/demo_images/MDAC_ataskaita_20140822.pdf

[12] Mental Health Perspectives, "The Right to Fair Trial of Children With Mental Health Disorders or Disabilities in Administrative, Civil or Criminal Law in Lithuania: Summary of the Report on the International Study", 2014, p. 20, http://www.perspektyvos.org/xinha/plugins/ExtendedFileManager/demo_images/MDAC_ataskaita_20140822.pdf