Ghent University Faculty of Law Academic year 2011-2012 LL.M. PAPER Victims’ Rights in Criminal Matters Post Lisbon Anouk Dehing Promotor: Prof.Dr. Gert Vermeulen Co-reader 1: Nina Persak Co-reader 2: Wendy De Bondt
Ghent University
Faculty of Law
Academic year 2011-2012
LL.M. PAPER
Victims’ Rights in Criminal Matters
Post Lisbon
Anouk Dehing
Promotor: Prof.Dr. Gert Vermeulen
Co-reader 1: Nina Persak
Co-reader 2: Wendy De Bondt
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
2 Victims’ Rights in Criminal Matters Post Lisbon
TABLE OF CONTENTS
PART 1. INTRODUCTION .................................................................................................... 6
Chapter 1. Background .............................. ..................................................................... 7
Chapter 2. Legal context: the UN and the Council of Europe....................................... 8
Section 1. The UN ....................................................................................................................... 8
Section 2. The Council of Europe .......................................................................................... 9
PART 2. VICTIMS’ RIGHTS IN CRIMINAL MATTERS PRE LIS BON .................................11
Chapter 1. Council Framework Decision of 15 March 2 001 on the standing of victims in criminal proceedings............................ ......................................................................11
Section 1. Describing the Framework Decision ............................................................... 11
A. Background & legal context ................................................................................................. 11
I. Background.................................................................................................................. 11
II. Legal Context............................................................................................................... 12
B. Framework decision: the instrument .................................................................................. 13
C. Legal basis ............................................................................................................................. 13
D. Content ................................................................................................................................. 14
Section 2. Reviewing the Framework Decision ................................................................ 17
A. Implementation.................................................................................................................... 17
I. 2004 Commission Report ............................................................................................ 17
II. 2009 Commission Report ............................................................................................ 18
III. 2009 Victim Support Europe Report ........................................................................... 18
B. Critical remarks..................................................................................................................... 20
I. Critical Remarks concerning the Framework Decision................................................ 20
1. Legal Basis............................................................................................................... 20
2. Time pad & peculiar character of Framework Decision.......................................... 20
3. Vague provisions ..................................................................................................... 21
4. The “partie civile”.................................................................................................... 22
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
3 Victims’ Rights in Criminal Matters Post Lisbon
5. Lack of infringement possibilities............................................................................ 23
6. Hidden agenda? ...................................................................................................... 23
II. Critical remarks concerning the implementation reports........................................... 24
1. Value of the written reports.................................................................................... 24
2. Implementation = transposal.................................................................................. 24
3. Additional rights...................................................................................................... 25
C. Conclusion............................................................................................................................ 26
Chapter 2. Council Directive of 29 April 2004 relat ing to compensation to crime victims ............................................ .................................................................................27
Section 1. Describing the Compensation Directive ........................................................ 27
A. Background & legal context ................................................................................................. 27
I. Background.................................................................................................................. 27
II. Legal context ............................................................................................................... 28
B. Directive: the instrument ..................................................................................................... 29
C. Legal basis ............................................................................................................................. 29
D. Content ................................................................................................................................. 29
Section 2. Reviewing the Compensation Directive ......................................................... 31
A. Implementation.................................................................................................................... 31
I. Matrix Report: Study on the application of the Compensation Directive .................. 31
II. Commission report...................................................................................................... 33
B. Critical remarks..................................................................................................................... 33
I. Critical remarks concerning the Compensation Directive........................................... 33
1. Vague provisions............................................................................................................ 33
2. Greater clarity about the compensation schemes............................................................. 35
3. Assisting and deciding authorities: developing an effectively integrated system......... 36
II. Critical remarks concerning the implementation report ............................................ 36
1. Lack of accurate data .................................................................................................... 36
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
4 Victims’ Rights in Criminal Matters Post Lisbon
C. Conclusion............................................................................................................................. 37
PART 3. VICTIMS’ RIGHTS IN CRIMINAL MATTERS POST LI SBON ...............................39
Chapter 1. Legal context post Lisbon ............... ............................................................39
Section 1. Introduction of a legal basis .............................................................................. 39
Section 2. The Stockholm Programme & its Action Pla n .............................................. 40
Section 3. The Victims’ Rights Package ............................................................................. 41
A. Preparatory work ................................................................................................................. 42
B. Legal elements ...................................................................................................................... 43
I. Directive establishing minimum standards on the rights, support and protection of
victims of crime ..................................................................................................................... 43
II. Regulation on mutual recognition of protection measures in civil matters ............... 43
III. Non-legislative measure.............................................................................................. 44
C. Roadmap ............................................................................................................................... 44
Chapter 2. Directive of 13 December 2011 on the Eur opean Protection Order ..........45
Section 1. Describing the EPO Directive ............................................................................ 45
A. Background & legal context ................................................................................................. 45
I. Background.................................................................................................................. 45
II. Legal context ............................................................................................................... 46
B. Directive: the instrument ..................................................................................................... 48
C. Legal basis ............................................................................................................................. 48
D. Content ................................................................................................................................. 48
Section 2. Reviewing the EPO Directive ............................................................................. 51
A. Implementation.................................................................................................................... 51
B. Critical remarks..................................................................................................................... 51
I. Critical remarks concerning the EPO Directive ........................................................... 51
1. Need for an EPO Directive?............................................................................................ 51
2. The definition of “protection measure”......................................................................... 52
3. Prioritising...................................................................................................................... 53
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
5 Victims’ Rights in Criminal Matters Post Lisbon
4. Double criminality.......................................................................................................... 54
5. Financial implications .................................................................................................... 54
6. Relationship with other instruments ............................................................................. 55
7. Are protection measures the best instrument to effectively protect victims?............... 55
C. Conclusion............................................................................................................................. 56
Section 1. Describing the Minimum Standards Directi ve .............................................. 57
A. Background & legal context ................................................................................................. 57
I. Background.................................................................................................................. 57
II. Legal context ............................................................................................................... 58
B. Directive: the instrument ..................................................................................................... 58
C. Legal basis ............................................................................................................................. 58
D. Content ................................................................................................................................. 58
Section 2. Reviewing the Minimum Standards Directiv e ............................................... 60
A. Implementation.................................................................................................................... 60
B. Critical remarks..................................................................................................................... 61
I. Critical remarks concerning the Minimum Standards Directive ................................. 61
1. Foreseen timetable ........................................................................................................ 61
2. Vague provision ............................................................................................................. 61
3. The definition of “victim”............................................................................................... 62
4. Vulnerable victims ......................................................................................................... 62
4. Infringement procedures ............................................................................................... 63
5. Hidden agenda?............................................................................................................. 63
C. Conclusion............................................................................................................................. 63
PART 4. GENERAL CONCLUSION ......................... ...........................................................65
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
6 Victims’ Rights in Criminal Matters Post Lisbon
PART 1. INTRODUCTION
The research question of this LL.M.-paper concerns the adequacy of the protection of victims’ rights
in criminal matters within the EU. In order to formulate an answer to this question, the paper will
discuss and evaluate the different relevant legal instruments regulating victims’ rights in the EU.
From the 1980s onwards, making respect for victims’ rights a reality for every human being suffering
from effects of crime has been increasingly prioritised in EU policy-making and on international level.
However, the methods that were chosen to develop victims’ rights legislation and policies have
turned out to be at times unsatisfactory to reach this goal.
The paper first dedicates a chapter to the general background of victims’ rights. This chapter also
includes an outline of the victims’ rights instruments that have been established by the UN and the
Council of Europe.
Subsequently, the paper sets out to explore the main objective of the paper: evaluating the work
that has been done in the field of victims’ rights within the EU.
Firstly, the paper focuses on the situation within the EU before the adoption of the Lisbon Treaty. Pre
Lisbon, the EU reflected minimum standards for victims of crime through the adoption of the
Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings1, followed
by the Directive of 29 April 2004 relating to compensation to crime victims2. The implementation
level of these two pieces of legislation was found inadequate to effectively protect and ensure the
rights and needs of victims. Therefore, new action on the protection of victims’ rights had to be
taken.
In a second part, the paper will consider this renewed action on victims’ rights, that started with the
adoption of the Treaty of Lisbon. The Treaty of Lisbon introduced a legal basis for the EU to act in the
field of victims’ rights. This led to the adoption of a Victims’ Rights Package, including the Proposal
for a Directive establishing minimum standards on the rights, support and protection of victims of
crime3 and a Proposal for a Regulation on mutual recognition of protection measures in civil matters
4,
which complements a Directive on the European Protection Order5. Some of them have already been
adopted, some are to be adopted in the near future.
The discussion of each of the selected legal instruments will be twofold. First of all, each instrument
will be subject to a descriptive part, dealing with its background and legal elements. In a second part,
these observations are used as a template to evaluate the instrument. The evaluation consists of an
assessment of the implementation level of the instrument (if already implemented by the time of
writing, being May 2012) and the presentation of some critical remarks towards the instrument in
general. A conclusion will be formulated after the review of each of the legal instruments.
1 Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings [2001] OJ
L 82/1. 2 Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims [2004] OJ L 261/15.
3 European Parliament and Council, ‘Proposal for a Directive of the European Parliament and of the Council, establishing
minimum standards on the rights, support and protection of victims of crime’ COM (2011) 275 final 4 European Parliament and Council, ‘Proposal for a Regulation of the European Parliament and the Council on mutual
recognition of protection measures in civil matters’ COM (2011) 276 final. 5 Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European protection
order [2011] OJ C 69/5.
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
7 Victims’ Rights in Criminal Matters Post Lisbon
This two level approach will allow me to present an answer to the research question in the general
conclusion of the paper.
It should be emphasised that the purpose of this paper is not to answer sociological questions such
as: “Why are victims’ rights important?” and “What should victims’ rights uphold?”. Although these
are of course essential concerns that get policy-makers to act in the first place, the paper focuses on
the legislative work that has been done within the EU in the field of victims’ rights over the last
decades.
Chapter 1. Background
In this chapter, the general history of victims’ rights will be considered in order to understand the
position of victims’ rights over the past decades. The detailed, long-term history of victims’ rights will
not be discussed, as this would not contribute to the purpose of this paper.
Although victims’ rights have gotten more and more recognition on a European and international
level since the 1980s, they were historically never considered as an important element of judicial
proceedings. Traditionally, victims of crime played a very limited role and focus was rather on
prosecuting the offender and defending society. The victim was seen as a source of information,
without whose contribution, prosecuting and sentencing would become quasi impossible.6 The
participation of the victim served thus mainly the Member States’ interest rather than his own. This
leading role taken by the Member States, and the consequent sidelining of victims, led to a so-called
“secondary victimisation”, meaning that the victim of a crime feels further violated because of the
negative reaction society gives to the primary victimisation.7
Due to this traditional approach, a negative and unsustainable situation had been developed, which
gave rise to a collective dissatisfaction towards the criminal justice system. Moreover, the self-
awareness of victims grew and led to the “emancipation of the victim”.8 Victims complained about
the lack of useful information and didn’t feel accepted within the criminal justice process.
Slow but steady, these developments changed the attitude towards the position of crime victims.
There was a clear shift in the mindset of policy makers as victim’s needs were more and more seen as
a central part of ensuring justice, alongside catching and punishing the offenders.9
Since the 1980s, in almost all Member States groupings of citizens' associations acted as a
mouthpiece and high-profile advocate for victims. In tandem with these groupings, a number of
Member States also came to pay more attention to the largely overlooked victims of crime by way of
regulating victims’ rights.
6 J Shapland, J Willmore and P Duff, Victims in the criminal justice system (Gower Publishing Company Limited 1985) 175.
7 Uli Orth, ‘Secondary Victimization of Crime Victims by Criminal Proceedings’ (2002) 15 Social Justice Research 313.
8 R Kool, ‘Uit de schaduw: de emancipatie van het slachtoffer binnen de strafrechtpleging’ (1999) 5 Justitiële Verkenningen
60-73. 9 Marc S Groenhuijsen and Sanra Reynaers, ‘Het Europees Kaderbesluit inzake de status van het slachtoffer in de
strafprocedure: Implementatieperikelen en interpretatievragen’ (2006) 3 Panopticon 14.
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
8 Victims’ Rights in Criminal Matters Post Lisbon
Chapter 2. Legal context: the UN and the Council of Europe
Also at global level, important achievements were made. Not only the EU made a lot of progress in
the field of victims’ rights, but international organisations such as the UN and the Council of Europe
attempted to address the position and the treatment of victims by way of legal instruments.
Although the objective of this paper concerns the protection of victims’ rights within the EU, it will
briefly consider the most important victims’ rights instruments of the UN and the Council of Europe.
Some of these instruments have been a great influence and inspiration for other victims’ rights
documents, including the EU-instruments that will de discussed in this paper. To have a basic
knowledge of these instruments may therefore be useful to understand the background of the
instruments that will be analysed more in depth further on. In addition, it is valuable to put the EU-
instruments in a bigger context, in order to really understand their position and value.
The United Nations and the Council of Europe have been conducting important work in pursuit of
international solutions to the problems faced by crime victims.
Section 1. The UN
In 1985, the United Nations adopted the United Nations Declaration of basic principles of justice for
victims of crime and abuse of powers10
. The UN Declaration has been adopted by a resolution of the
UN General Assembly and therefore should be considered to be soft law. Although the UN
Declaration is thus not legally binding, it is frequently hailed as a magna Charta for victims of crime11
as it was a pioneering work and a catalyst of change.12
The UN Declaration contains a bill of rights
which inspired and continues to inspire many subsequent international and domestic legally non-
binding as well as binding instruments on victim’s rights. Moreover it positively influences the
interpretation of existing texts.13
The UN Declaration is characterised by its numerous follow-up activities aimed to effectively
implementing its provisions. The UN Economic and Social Council for example, has monitored the
implementation by adopting its own resolutions in which it recommends the steps to be taken in
ensuring rights for victims of crime.14
Likewise, a detailed list of measures for implementation was
adopted by the General Assembly in 1989. In 1994, the Secretary-General circulated an extensive
questionnaire to the UN Member States covering all items in the UN Declaration. In addition, a
10 General assembly Resolution 40/34 of November 1985 - Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power [1985] <www.un.org/documents/ga/res/40/a40r034.htm>. 11
ZP Separovic, ‘The victim declaration: a substantial moral victory for victims of crime and abuse of power’ in A Gaudreault
and others (eds.), Beyond boundaries. Research and action for the millennium (Montreal, Association québécoise Plaidoyer-
Victimes 2000) 277-282. 12
MS, Groenhuijsen and RM Letschert, ‘Reflections on the Development and Legal Status of Victims' Rights Instruments’ in
M.S. Groenhuijsen and R.M. Letschert (eds.), Compilation of international victims' rights instruments (Wolf Legal Publishers
2006) 1-18. 13
Marc Groenhuijsen, ‘The draft UN convention on Justice and Support for Victims of Crime, with special reference to its
provisions on Restorative Justice.’ [2008] International Annals of Criminology 121. 14
UN Economic and Social Council Resolution 1986/10 of 21 May 1986; UN Economic and Social Council Resolution
1998/21 of 28 July 1998 - Plan of Action for the Implementation of the Declaration of Basic Principles of Justice for Victims
of Crime and Abuse of Power; UN Economic and Social Council Resolution 2000/15 of 27 July 2000 - Implementation of the
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
9 Victims’ Rights in Criminal Matters Post Lisbon
“Guide for policymakers on the implementation of the UN Declaration”15
was published in 1999,
joined by the “Handbook on the use and application of the Declaration”16
.
Despite these attempts, many felt that the implementation of the UN Declaration was still
unsatisfactory and that it needed to be updated. The idea that implementation should be made the
subject of a fully-fledged UN Convention arose. A UN convention is an agreement between different
countries that is legally binding to the contracting States.
In 2005, a meeting was convened with experts from different world regions to discuss the need to
transform the 1985 UN Declaration into a UN Convention on Victims’ Rights. The question whether a
Convention would be the proper instrument to stimulate further implementation of and compliance
with the UN Declaration was addressed. The meeting concluded that a Convention was indeed
desirable, which lead to a first draft of a UN Convention on Justice and Support for Victims of Crime
and Abuse of Power17
.18
Improvements were made to the draft Convention on several occasions19
but
up until the time of writing, the Convention has not been adopted yet.
In addition to this, the UN General Assembly adopted Basic Principles and Guidelines on the right to a
remedy and reparation for victims of gross violations of international human rights law and serious
violations of international humanitarian20
law in 2005. The basic principles are soft law and thus have
no binding legal effect.
Section 2. The Council of Europe
The work of the Council of Europe led to the adoption of a number of recommendations, such as the
Resolution on the compensation of victims of crime21
in 1977. This Recommendation stipulates that in
case compensation can not be granted by any other means, the Member States should compensate
all persons that suffered serious injuries because of the crime and, in case of a deadly victim,
everybody that depended upon the victim. The compensation covers all sorts of previous and future
damages.
In 1983, the Council of Europe’s Committee of Ministers approved the European Convention on the
compensation of victims of violent crimes22
, regulating victims’ rights to compensation. The
15 ‘The Guide for Policy Makers on the Implementation of the United Nations Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power.’ [1999] < http://www.uncjin.org/standards/standards.html >. 16
‘The Handbook on Justice for Victims on the Use and Application of Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power" United Nations Office for Drug Control and Crime Prevention’ [1999]
< http://www.uncjin.org/standards/standards.html >. 17
DRAFT UN Convention on Justice and Support for Victims of Crime and Abuse of Power [2006]
< http://www.justice.gov.za/VC/docs/international/2006_Draft%20UN%20Convention%20Victims.pdf >. 18
Willen van Genugten, Rob van Gestel, Marc Groenhuijsen and Rianne Letschert, ‘Loopholes, Risks and Ambivalences in
International Lawmaking: The Case of a Framework Convention on Victims' Rights.’ (2006) 37 Netherlands Yearbook of
International Law 110-111. 19
For example during the 2008 conference at TIVI. (Tokiwa International Victimology Institute in Mito, Japan). 20
General Assembly resolution 60/147 of 16 December 2005 - Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International
Humanitarian Law [2005] < http://www2.ohchr.org/english/law/remedy.htm >. 21
Council of Europe Committee of Ministers Resolution (77) 27 on the Compensation of Victims of Crime [1977]
<https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=595033&SecMod
e=1&DocId=659298&Usage=2>.
Recommendations adopted before 1979 were issued in the "Resolutions" series of texts adopted. 22
Council of Europe European Convention on the Compensation of Victims of Violent Crimes [1983]
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
10 Victims’ Rights in Criminal Matters Post Lisbon
Convention only has direct effect in as far as it is signed and ratified by States. Twelve EU-Member
States signed the Convention and nine of them actually ratified it. The Convention entered into force
in 1988 and creates minimum standards relating to compensation for State parties. It is applicable to
victims of intentional crimes of violence who have suffered serious bodily injury or impairment of
health, which is directly attributable to the intentional crime. The dependants of persons who have
died as a result of such crime are eligible as well.
In 1985, the Council of Europe adopted the Recommendation on the position of the victim in the
framework of the criminal law and procedure23
. The basic rights awarded to victims are by and large
the same as the rights included in the UN Declaration. The Recommendation also offers guidelines
who do not have any legally binding force. Unlike the UN, the Council of Europe never showed the
same measure of concern about implementation of the Recommendation. No overall assessment has
taken place as to the level of compliance by the Member States.
Subsequently, the Council of Europe adopted the Recommendation on assistance to victims and the
prevention of victimisation24
(1987) and the Recommendation concerning mediation in penal
matters25
(1999).
More recently, in 2006, the Council of Europe issued a Recommendation on assistance to crime
victims26
. This Recommendation is extensive and proclaims that Member States should identify and
support measures to alleviate the negative effects of crime. Moreover, they should make sure that
the protection of a victim’s physical and psychological integrity is guaranteed at all stages of criminal
procedure. The instrument contains a wide variety of victims’ rights which in some regard are more
detailed and elaborative compared to other victims’ rights instruments, such as the Framework
Decision on the standing of victims in criminal proceedings and the UN Declaration.27
< http://conventions.coe.int/Treaty/en/Treaties/Word/116.doc >. 23
Council of Europe Committee of Ministers Recommendation No. R (85) 11 of the Committee of Ministers to Member
States on the Position of the Victim in the Framework of Criminal Law and Procedure [1985]
< http://ec.europa.eu/civiljustice/comp_crime_victim/docs/council_eur_rec_85_11_en.pdf >. 24
Council of Europe Committee of Ministers Recommendation No. R (87) 21 of the Committee of Ministers to Member
States on Assistance to Victims and the Prevention of Victimisation [1987]
<https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=608023&SecMod
e=1&DocId=694280&Usage=2 >. 25
Council of Europe Committee of Ministers Recommendation No. R (99) 19 of the Committee of Ministers to member
States concerning mediation in penal matters [1999]
< https://wcd.coe.int/ViewDoc.jsp?id=420059&Site=DC >. 26
Council of Europe Committee of Ministers Recommendation Rec(2006)8 of the Committee of Ministers to member states
on assistance to crime [2006] < https://wcd.coe.int/ViewDoc.jsp?id=1011109&Site=CM >. 27
The Recommendation refers for instance to the need to assist victims in all aspects of their rehabilitation, at home and in
the workplace (art. 3.1). It also refers to the specific needs of particularly vulnerable victims, and actually defines these
victims as victims of sexual and domestic violence (art. 5.3) and victims of terrorism (art. 5.4).
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
11 Victims’ Rights in Criminal Matters Post Lisbon
PART 2. VICTIMS’ RIGHTS IN CRIMINAL MATTERS PRE LISBON
Since the 1980s, the importance of victims’ rights were set more prominently on the global agenda
and the European Union inevitably followed suit. In an attempt to safeguard the needs of victim in
criminal matters, the EU introduced two instruments on victims’ rights. In 2001, the Framework
Decision on the standing of victims in criminal proceedings was adopted. This instruments covers the
position of victims in judicial proceedings in general. In 2004, an instruments specifically regulating
the compensation to victims, was adopted, namely the Directive relating to compensation to crime
victims.
In this part, an in depth analysis of both instruments will be provided.
Chapter 1. Council Framework Decision of 15 March 2 001 on the standing of victims in criminal proceedings
The first hard-law intervention of the EU in the field of victims’ rights was through a comprehensive
Framework Decision on the standing of victims in criminal proceedings (hereafter: the Framework
Decision) which was adopted in 2001. This event is a milestone in the history of victims’ rights. Prior
to this event, only soft-law instruments were available. The Framework Decision contains similar
provisions as the other, older, instruments, the most important distinction being that the instrument
is legally binding for all Member States of the EU.
Section 1 provides a descriptive report on the Framework Decision. First of all, the background and
context of the instrument will be discussed. The most important legal events in the EU’s victims’
rights history that led to the adoption of the Framework Decision will be pointed out. Next, the
framework decision as an instrument and the legal basis are discussed. As a final point of the section,
the actual content of the Framework Decision will be considered.
Section 2 includes the evaluation and review the Framework Decision by way of assessing the
implementation level. In order to do this, tree implementation reports were consulted.
Subsequently, some critical remarks are formulated towards the Framework Decision and towards
the implementation reports. Section 2 finally offers a general conclusion.
Section 1. Describing the Framework Decision
A. Background & legal context
I. Background
The adoption of the Framework Decision was set in motion because of the following concerns. First
of all, the victims’ rights legislation that was available within the EU Member States before the
adoption of the Framework Decision contained substantive differences, caused by the diverse social
attitudes towards victims in the Member States. A lot of key concepts were interpreted differently,
for example the scope of the term “victim”. As a consequence, victims of similar offences were
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
12 Victims’ Rights in Criminal Matters Post Lisbon
exposed to different rights in different Member States. This observation was considered to be
incompatible with the establishment of an area of freedom, security and justice for all. In order to
ensure mutual trust in each others’ criminal justice systems, it was found desirable for the Member
States to conform to a standard set of procedural safeguards not just for suspects and defendants
but also for victims. Furthermore, victims across the EU needed to have equal access to all services.
In several EU Member States, provisions pertaining to victims’ rights were embedded in a multitude
of legislative documents. The purpose of adopting a unified piece of legal instrument, also led to the
introduction of the Framework Decision.
II. Legal Context
The Treaty of Amsterdam introduced the possibility of creating an area of Freedom, Security and
Justice. Following the entry into force of the Treaty of Amsterdam in 1999, several policy documents
were adopted in order to realise the objectives of the Treaty of Amsterdam.
The 1998 the Council and Commission action plan on how best to implement the provisions of the
Treaty of Amsterdam on an area of freedom, security and justice28
, the so-called Vienna Action Plan,
clarifies the rationale of the “Area of Freedom, Security and Justice” and defines the priorities and
measures. Victims' rights were also included in the Action Plan.29
According to the Plan, adequate
and comparable procedural guarantees should be complemented by standards and codes of good
practice in areas of transnational relevance and common concern (e.g. interpretation) which may
also extend to certain parts of the enforcement of criminal decisions, including victim support.
Moreover the question of victim support should be addressed within five years following entry into
force of the Treaty of Amsterdam.
To make some progress towards the new Area of Freedom, Justice and Security, these general
guidelines of the Vienna Action Plan were insufficient. That’s why the Vienna European Council
formally decided to convene a special summit in Tampere on 15 and 16 October 1999.
Ahead of this European Council meeting in Tampere, the Commission adopted the 1999
Communication on standards and actions concerning crime victims in the European Union30
. This
Communication provided a full response to the decisions set out in the Vienna Action Plan and
influenced the conclusions of the Tampere Council. The European Parliament adopted a Resolution
on the Commission’s Communication in 2000.31
The start of the Tampere summit revealed a consensus on the need to fully develop the Union as an
Area of Freedom, Security and Justice by making active use of the possibilities offered by the Treaty
of Amsterdam. The establishment of a “European area of justice” was to be realised through
enhancing access to justice and mutual recognition of judicial decisions. When it comes to victims’
rights, Member States recognised the need to lay down minimum standards on the protection of
victims of crime in the EU, in particular on access to justice and compensation for damages. In
28 Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on
an area of freedom, security and justice [1999] OJ C 019. 29
Vienna Action Plan - points 19 and 51 (c). 30
Commission, ‘Communication from the Commission to the Council, the European Parliament and the Economic and Social
Committee of 14 July 1999 – Crime victims in the European Union – Reflexions on standards and action’ COM (1999) 349
final. 31
European Parliament Resolution on crime victims in the EU [2001] OJ C 67.
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
13 Victims’ Rights in Criminal Matters Post Lisbon
addition, it was decided that national programmes should be set up to finance measures, public and
non-governmental, for assistance to and protection of victims.32
This was the trigger that eventually led to the adoption of the Framework Decision on the standing of
victims in criminal proceedings in 2001.
When we discuss the background of victims’ rights in the EU, the European Forum for Victim
Services33
definitely deserves mentioning. This is a network of non-governmental victim support
organisations, which provide assistance and information to victims of crime. In 1996, the EFVS
adopted a Statement of victims’ rights in the process of criminal justice34
. Statements have to be
qualified as “non law”, as they are not supported by any public authority whatsoever. Nevertheless,
this document turned out to have functioned in a similar way as soft law instruments in practice.35
The Statement was presented to Euro-Commissioner Anita Gradin, at the time head of the
Commission for Freedom, Security and Justice. She became aware of the importance of crime
victims’ rights. More specifically, she was convinced that the fate of cross-boarder victims differs
from those who fall victim in their own country.36
She set up a Committee of Experts who produced a
Statement on Crime Victims in the European Union: reflections on standards and action37
. In 1999,
this Statement was adopted by the Commission and endorsed by the Council of Ministers. Obviously,
this work also had an important share in firmly establishing the rights of victims on the agenda of the
European Union.
B. Framework decision: the instrument
With the entry into force of the Treaty of Amsterdam, framework decisions were created, replacing
joint actions. Article 34(2)(b) TEU38
stipulates that framework decisions are used to approximate the
laws and regulations of the Member States. They are legally binding on the Member States as to the
result to be achieved, but leave it up to the them to choose the form and methods to achieve that
result. Member States have to introduce new legislation or adjust their existing national laws and
regulations to meet the standards. Framework Decisions do not entail direct effect. The TEU does not
give any other rules on implementing framework decisions.
C. Legal basis
The Framework Decision is adopted on the basis of articles 31 (e) and 34(2)(b) TEU39
. According to
article 31 (e) and article 34 (2)(b), framework decisions can only be adopted “to establishing
minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of
32 Tampere European Council 15 and 16 October 1999 Presidency Conclusions point 32.
33 In October 2007 the European Forum for Victim Services officially changed its name to Victim Support Europe
34 European Forum for Victim Services Statement of victims’ rights in the process of criminal justice [1996]
< http://www.apav.pt/portal/pdf/criminal_justice_rights.pdf >. 35
MS, Groenhuijsen and RM Letschert, ‘Reflections on the Development and Legal Status of Victims' Rights Instruments’ in
MS Groenhuijsen and RM Letschert (eds.), Compilation of international victims' rights instruments (Wolf Legal Publishers
2006) 11. 36
P Rock, Constructing victims’ rights, the Home Office, New Labour, and victims (Oxford, Oxford University Press 2004)
513. 37
Statement on Crime Victims in the European Union: reflections on standards and action
<www.europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in_criminal_matters/l33091_en.h
tm> 38
This article was removed with the entry into force of the Treaty of Lisbon 39
Article 82-83 TFEU.
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
14 Victims’ Rights in Criminal Matters Post Lisbon
organised crime, terrorism and illicit drug trafficking”. In other words, framework decisions can only
be adopted in the field of substantive criminal law and harmonisation of criminal procedure law is
not included. The Framework Decision however, relates to formal criminal procedure law. This issues
was explicitly raised during the treatment of the draft Proposal of the Framework Decision in the
Parliament. It was considered doubtful whether it was legitimate and appropriate for the EU to
operate in this field. Consequently, it would only be approvable for the Commission to adopt this
initiative as a recommendation instead of a framework decision. Otherwise, the Commission would
exceed its competences concerning Justice and Home Affairs. 40
The adoption of the Framework Decision was eventually legitimised by invoking the classical
European freedoms and in particular the freedom of persons to travel without restrictions within the
European common space. Residents of any EU-Member State who temporarily or permanently reside
in another Member State and there fall victim, should receive the same level of protection as they
would in their home country.41
At the heart of the Framework Decision thus lies the concern with the position of the so-called cross-
boarder victims, those victimised in another Members State than their country of residence. They
experience specific problems, such as language barriers and lack of understanding of the host State’s
legal system. Moreover, they have often returned to their home Member State by the time the court
trial begins. These specific problems of “foreign” victims, such as workers, students or tourists, are
the main driver for EU-competence in the protection of crime victims.42
D. Content
The shortest and most accurate summary of the general objective of the Framework Decision is
probably contained in point 8 of the Recital: “The rules and practices as regards the standing and
main rights of victims need to be approximated, with particular regard to the right to be treated with
respect for their dignity, the right to provide and receive information, the right to understand and be
understood, the right to be protected at the various stages of procedure and the right to have
allowance made for the disadvantage of living in a different Member State from the one in which the
crime was committed.”43
In other words, the Framework Decision aims to ensure that victims of
crime receive an equitable treatment throughout the European Union.
The Framework Decision contains a number of generic and particular provisions relating to protective
measures. The content of the instrument will be summarised in the following paragraphs.
Article 1 contains definitions and consequently also stipulates the personal field of application of the
Framework Decision. The Framework Decision defines “victim” as natural person who has suffered
harm directly caused by acts or omissions that are in violation of the criminal law of a Member State.
40 Ilse Creve, Eva Delanghe and Helga Coppen, ‘Slachtoffer en strafprocedure’ in Gert Vermeulen (ed), Aspecten van
Europees formeel strafrecht (Maklu 2002) 437-438. 41
Rianne Letschert and Marc Groenhuijsen, ‘Global governance and global crime: Do victims fall in between?’ in R.M.
Letschert and J.J.M. Dijk (eds), The new faces of victimhood (Dordrecht, Springer 2011) 10. 42
MS Groenhuijsen and A. Pemberton, ‘The EU framework Decision for Victims of Crime: Does Hard Law Make a
Difference?’ [2009] European Journal of Crime, Criminal Law and Criminal Justice 44. 43
ibid 45.
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
15 Victims’ Rights in Criminal Matters Post Lisbon
As outlined above, the position of cross-border victims is the main driver for the EU to initiate
legislation concerning the protection of crime victims.44
However, it showed to be not practically
feasible to regulate the position of cross-border victims without paying attention to national victims
as well. European standardisation of the position of cross-border victims may lead to the situation
that cross-border victims enjoy rights not open to nationals, which would again be at odds with the
freedoms relating to the European common space. For this reason, the content of the Framework
Decision, although it is in certain ways still explicitly inspired by the phenomenon of cross-border
victimization, ultimately applies to all victims of crime.
Article 2 includes a right to respect and recognition at all stages of the criminal proceedings and
mentions there is “a specific treatment needed best suited for victims who are particularly
vulnerable” .
In accordance with article 3, the Member States have to guarantee a right to be heard during
proceedings and a right to supply evidence. Moreover, the questioning of the victim should be kept
to a minimum as much as possible.
The right to receive understandable information of relevance for the protection of the victim’s
interests, is prescribed in article 4. The victim should be kept informed about the progress of the case
and about the offenders release, at least in cases where there might be danger to the victim. The
victim’s choice not to receive information should also be respected.
Communication safeguards are included in article 5. Victims need to know the relevant steps of the
criminal proceedings and their position in these proceedings. This article was also adopted to cope
with the specific problems cross-boarder victims are faced with. In those cases, the communication
towards the victim should be as clear as possible. This can be done by making translators and
interpreters available, though this might give rise to a substantial budgetary impact and slow down
the proceedings.45
Article 6 concerns a right to have legal advice and legal aid available, regardless of the victim’s
means.
Reimbursement of victims’ expenses incurred due to participation in the criminal procedure is
regulated in article 7.
As for articles 5, 6 and 7, the scope is restricted to ‘the victim having the status of witnesses or
parties to the criminal proceedings’, the so-called “partie civile”.
Article 8 relates to a right to protection, for victims’ privacy and their physical safety. It prescribes a
suitable level of protection for victims and their families and appropriate measures should be taken
to protect their privacy and photographic image. The competent authority should also consider
whether there is a serious risk of reprisals or intent to intrude upon the victims’ privacy. Special
waiting areas should be foreseen, so that contact between victim and offender is kept to a minimum.
The victims, particularly those most vulnerable, should also be protected from the effects of giving
evidence in open court. Under aged victims could for example be assisted by a confidential
44 MS Groenhuijsen and A. Pemberton, ‘The EU framework Decision for Victims of Crime: Does Hard Law Make a
Difference?’ [2009] European Journal of Crime, Criminal Law and Criminal Justice 44. 45
MS Groenhuijsen, ‘Hervorming van het strafprocesrecht met het oog op de belangen van het slachtoffer: 'we ain't seen
nothing yet'.’ [2001] Delikt en Delinkwent 648.
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
16 Victims’ Rights in Criminal Matters Post Lisbon
counsellor when they are interviewed in court or vulnerable victims could also testify through video-
conference.46
The right to adequate compensation, from the offender and the Member States, is prescribed in
article 9. The right to compensation is only briefly regulated in the Framework Decision. The Directive
relating to compensation to crime victims provides more elaborated rights on the matter.
Article 10 has to do with mediation and more precisely prescribes a duty for the State to promote
mediation in criminal cases which it considers appropriate for this sort of measure.
Article 11 and 12 are the main articles relating to cross-border crime.
Article 11 places a general duty on Member States to ensure that authorities can take appropriate
measures to minimise the specific difficulties foreign victims experience. The victim should be able to
make a statement immediately after the commission of the offence and for the purpose of hearing
those victims, use should be made of video conferencing and telephone conference calls. Moreover,
the victim should be able to make a complaint before the competent authority of his State of
residence if he was unable or unwilling to do so in the Member State where the offence was
committed.
Article 12 prescribes the duty for Member States to foster, develop and improve cooperation with
foreign states in cases of cross-boarder victimisation. The Framework Decision acknowledges the
importance of both governmental and non-governmental cooperation as it refers to both networks
directly linked to the judicial system and of links between victim support organisations.
Article 13 deals with the right to receive victim support. It refers to both initial reception of victims
and assistance thereafter. Once again, the Framework Decision encourages and promotes the
delivery of victim support through NGOs.
Article 14 encourages professional education for those who come into contact with victims during
the criminal procedure. Among that category, we should count personnel of victim support
organisations, police officers and legal practitioners. The way a victim is treated right after the
offence was committed, is of major importance. It can make the victim feel secure and understood
and this defines the way the victim will process the crime.47
Article 15 contains a general rule prescribing the duty for member states to avoid secondary
victimisation.
46 Ilse Creve, Eva Delanghe and Helga Coppen, ‘Slachtoffer en strafprocedure’ in Gert Vermeulen (ed), Aspecten van
Europees formeel strafrecht (Maklu 2002) 431. 47
ibid 434.
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
17 Victims’ Rights in Criminal Matters Post Lisbon
Section 2. Reviewing the Framework Decision
In this section, attention will be given to what the Framework Decision eventually changed in the
field of victims’ rights. Insight will be given on the consequences of the Framework Decision after its
adoption. It will be assessed whether the Framework Decision reached its goals. For this purpose,
two Commission reports and a Victim Support Europe Report haven been consulted. After studying
these reports, some critical reflections will be shared.
A. Implementation
Article 17 concerns the implementation. It should be noted that the Framework Decision approaches
matters speedily. For the largest part, the provisions had to be implemented within one year after
adoption of the Framework Decision, by 22 March 2002. The provision concerning communication
safeguards (article 5) and specific assistance to the victim (article 6) require implementation by 22
March 2004 and article 10, relating to mediation should be implemented by 22 March 2006.
Article 18 requires an assessment of the measures taken by the Member States to comply with the
Framework Decision within one year following each of the implementation dates. This assessment
should be based on reports from the Member States containing the text of the provisions enacting
into national law the requirements laid down by this Framework Decision.
I. 2004 Commission Report48
The Commission published a first evaluation report on the implementation of the EU Framework
Decision in 2004. For most provisions of the Framework Decision transposal into national law was
required by March 2002. However, by this time none of the Member States had notified the
Commission of measures taken to transpose the Framework Decision. That is why the deadline for
the first evaluation report was deferred until March 2003. By then, ten Member States had send a
complete contribution. The Commission’s analysis could therefore only be fragmentary.
The overall conclusion of the report was extremely negative: “No Member State can claim to have
transposed all the obligations arising from the Framework Decision and no Member State can claim
to have correctly transposed the first paragraph of article 2.” Article 2(1) is more or less the root of
all other concrete victims’ rights and the Commission thus points out a serious shortcoming on a
large scale.
The Commission then illustrated this overall negative assessment by a long list of more specific
shortcomings.
Some typical examples: Nearly no Member State has done enough to meet the requirement
concerning the victim’s right not to receive information. (article 4 (4)) The same is true with regard to
the right to reimbursement of expenses made during the procedure. (article 7) The requirement to
introduce mandatory trainings for all authorities who come into contact with victims is inadequately
implemented almost everywhere. (article 14) The Commission repeatedly points out the lack of
formal transposal of the Framework Decision into national law.
48 Commission, ‘Report From The Commission, on the basis of Article 18 of the Council Framework Decision of 15 March
2001 on the standing of victims in criminal proceedings’ COM (2004) 54 final/2.
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
18 Victims’ Rights in Criminal Matters Post Lisbon
Overall, it appeared that those Member States that have traditionally been more progressive with
regards to victims’ rights, have taken the Framework Decision as an opportunity to further advance.
Other Member States, that have traditionally been less progressive, have taken advantage of the
ambiguity of the Framework Decision to continue on the less progressive path.
II. 2009 Commission Report49
In 2009, a second report of the Commission was published. This report took into account the
implementation of the Framework Decision by 15 February 2008 in all 27 Member States. We should
keep in mind that, at this time, the Framework Decision contained exactly the same provisions and
wording as was the case when the first Commission report came out. The Member States were thus
still restricted to these specific provisions for implementation, although they could have drawn some
conclusions out from the 2004 Commission report.
The Commission started with pointing out that no Member State transposed the Framework Decision
in one single piece of national legislation. It mentioned the need to “prove” certain practices by
providing formal legal bases.50
The Commission repeatedly admits that some of the Framework
Decision’s provision were very general and therefore, the measures taken differ from one State to
the other.51
Overall, the implementation of the Framework Decision was still found to be
unsatisfactory. The Commission pointed out numerous omissions and complained that Member
States largely refer to existing practice prior to adoption of the Framework Decision. The report
concluded with: “The aim of harmonising legislation in the field of victims’ rights has not been
achieves owing to the wide disparity in national laws”. This shouldn’t come as a surprise, knowing
that Member States did not have an other option than to interpret the open provisions in the way
they thought was best.
III. 2009 Victim Support Europe Report52
After the Commission reports, the Commission acknowledged that more reliable data was needed to
make a full assessment of the Member States’ implementation. Therefore the Commission asked
Victims Support Europe to conduct a study aimed to provide the Commission with a fuller and more
comparative picture of the effects of the Framework Decision. This study led to a report “Project
Victims in Europe” was published in 2009 and showed to what extent the Member States had
complied with the Framework Decision.
First of all, a word on the objectives and the methodology of the project. It aimed to review the
implementation in a comprehensive fashion. Therefore tree components were revised: legal
implementation and organisational implementation and measures of impact. The review thus also
included material guidelines and protocols and the question on sufficient organisation capacity that
49 Commission, ‘Report From The Commission, Pursuant to Article 18 of the Council Framework Decision of 15 March 2001
on the standing of victims in criminal proceedings’ COM (2009) 166 final. 50
For example: art. 4(1) Member States refer to the existence of Ministry of Interior Guidelines and a Bill, but the
Commission is not satisfied, as these “do not appear to be binding” or “have not passed into law”. Art. 4(2): “FI has
integrated obligations in its national system, but provided no legal basis”. Art. 13: ES and FR refer to existing national
legislation without specifying articles, and it is consequently not possible to check transposition” “UK, PL and CZ note that
the state subsidies victim support organisations, but gives no legislative basis”. 51
For example: art. 2(1) and art. 6 52
APAV-INTERVICT Report Implementation of the EU Framework Decision on the standing of victims in the criminal
proceedings in the Member States of the European Union, Project on behalf of Victim Support Europe [2009]
< http://www.apav.pt/portal_eng/ >
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
19 Victims’ Rights in Criminal Matters Post Lisbon
match with the formal legal framework in the Member States. Moreover, the report assessed
whether victims throughout actually perceive that their treatment is respectful. The project collected
data through questionnaires. A legal questionnaire and an organisational implementation
questionnaire were sent to State and non-State experts. Most of the experts were from civil society,
public bodies, research sector, the judicial sector and criminal investigation.
As for the content, the project immediately started out with a rather negative conclusion: the
amount of respect afforded to victims and recognition of the harm they suffered still left much to be
desired. Victims were still not given an appropriate role in the criminal justice systems and did not
feel adequately recognised by the professional personnel involved in the criminal justice system. This
overall assessment was follow with a more detailed article-wise evaluation. The project adopted very
elaborated methods to review each article, two examples will illustrate this points.
• When evaluating the manner of questioning of victims, for example, a distinction was made
between the questioning of child-victims, questioning of victims with mental disabilities,
questioning of victims of sexual or domestic violence and questioning of cross-boarder victims. In
other words, the questions covered all victims who have specific needs when it comes to
questioning and not just victims in general.
• Secondly, the project introduced seven criteria to measure the right to protection (art.8). Three
of them related to protection of the victim against publicity, the other four related to protection
of the victim against intimidation or threat by the offender. This approach also illustrates an in-
depth analysis.
The project was very straight forward on the inconsistency between the observations based on legal
implementation and the observations based on organisational implementation. Concerning article 4,
for example, most jurisdiction had a general legal obligation to provide information to victims, which
is also assigned to a responsible agency. However, the results of the organisational implementation
survey showed that the respondents are more often than not negative concerning the access to
information. The organisational survey suggested that the promising results of the legal
implementation survey need to be qualified.
Both the access to and effects of legal assistance and advice left room for improvement. The
responsibility to reimburse expenses incurred during the criminal procedure was recognised in most
Member States, although in practice reimbursement left much to be desired as victims were
generally unaware of the possibilities of reimbursement. Member States seemed to endorse the
importance of protection measures, but they often applied more than one measure to make sure the
victim is protected against the offender. In the preponderance of the Member States, the
compensation procedures were found inadequate and especially the timeliness of compensation was
much to be desired. There was a wide range of mediation practices across the EU, but the Member
States could determine themselves for which offences they found (penal) mediation appropriate.
Cross-boarder victims appeared to be in the least favourable position, as the majority of the Member
States did not even offer victims the opportunity to report crimes committed abroad once they
return home. In a significant number of Member States, the right to be heard and to provide
evidence was made hard through Victim Impact Statements. This way victims could tell the court
what impact the crime has had on their lives. The availability of translators and interpreters was
guaranteed by law, but due to scarce and inefficient resources adequate communication safeguards
did not exist in practice. For protection of the victim from the media, a lot of Member States relied
on the media’s self-regulation and followed the code of ethics. The project pointed out the
importance of (preferable independent) national victim support organisations for ensuring the
protection of victims’ rights, but the majority of these organisations are insufficiently funded. More
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
20 Victims’ Rights in Criminal Matters Post Lisbon
training of personnel involved in proceedings is needed, but there are not enough resources to train
all personnel.
B. Critical remarks
In this part, some critical remarks concerning the Framework Decision in itself will be presented, and
secondly, also with regard to the implementation of the Framework Decision and the methods of
assessing the implementation.
I. Critical Remarks concerning the Framework Decision
1. Legal Basis
As explained in point B of section 1 of this chapter, the EU-level intervention was legitimised by
linking it to the position of cross-border victims and the freedom of persons to travel without
restrictions within the European common space. Although this might seem as a reasonable
explanation, a true legal basis for the adoption of the Framework Decision is missing, which does not
contribute to the democratic value of the instrument. A Framework Decision is a legally binding
instrument, so logically, it could have been expected that the Member States would be somehow
reluctant towards the use of it, since the instrument interferes in their national legislation. Keeping
this consideration in mind, the following question arises: why did the Member State allow the EU to
intervene in the field of victims’ rights with a Framework Decision, even though this intervention was
based on a doubtable legal basis?
The answer to this question is rather simple. When the idea of a Framework Decision arose, most
Member States were convinced that the adoption of the instrument would not bring along too many
obligations to adjust their national legislation. This confidence is explained by the mandates of the
people who negotiated the content of the Framework Decision. The Member States clearly gave
them the instructions to only agree with provisions that were more or less in compliance with the
national legislation of the State they represented. As a consequence, provisions that would oblige the
Member State to adjust their national legislation too much and that would therefore actually change
something in the field of victims’ rights protection, were declined. When the Member State noticed
that nevertheless, some provisions would oblige them to make some severe changes to their
national legislation, these provisions were simply amended or deleted in the draft versions.53
This
approach is perfectly illustrated by point 9 of the Recital: “The provisions of this Framework Decision
do not, however, impose an obligation on Member States to ensure that victims will be treated in a
manner equivalent to that of a party to proceedings.”
This regrettable attitude resulted in the vague formulation of the provisions contained in the
Framework Decision.54
2. Time pad & peculiar character of Framework Decision
As mentioned before, the Commission expected the Member States to implement the majority of
the Framework Decision within one year. It should be emphasised that this deadline was extremely
tight and therefore not very realistic. Especially bearing in mind the sometimes far-reaching
53 Marc S Groenhuijsen and Sanra Reynaers, ‘Het Europees Kaderbesluit inzake de status van het slachtoffer in de
strafprocedure: Implementatieperikelen en interpretatievragen’ (2006) 3 Panopticon 17-18. 54
See point 3: Vague Provisions
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21 Victims’ Rights in Criminal Matters Post Lisbon
requirements of the Framework Decision. The earlier framework decisions adopted in the field of
criminal justice had a clearly demarcated content and allowed the Member States to meet the
implementation requirements with the introduction of a relatively small number of legislative
provision.55
The Framework Decision on the other hand, contains provisions that affect large portions
of the Code of Criminal Procedure of the Member States. It seems as if the drafters of the Framework
Decision did not fully realise what would be the impact of the imposed obligations. Adjustments
would have to be made on different levels, as the nature of the provisions differed widely. Some
demand a legislative action (article 7), while others require practical measures (article 8(3)).
Implementation thus demands a careful reflection on the entire criminal procedure. Bearing this in
mind, it might have been unwise to include such short implementation deadlines.56
In this regard, it should be added that the Commission states in its second implementation report
that “no Member State transposed the Framework Decision in a single piece of national legislation”.
This remark should be considered totally out of place, given the widely differing nature of the
provisions contained in the Framework Decision.
3. Vague provisions
The most obvious shortcoming of the Framework Decision is probably its ambiguous drafting.
Because basically all provisions were phrased in an “open” fashion, the Member States are offered
an enormous room of interpretation and they could only guess what measures they should take to
comply with the Framework Decision. Numerous examples can be found in the Framework Decision,
but I will restrict myself to a number of rather typical illustrations.
• Article 8 regulates the right to protection and instructs a suitable level of protection and
appropriate measures.
• Article 2(2) concerns “particularly vulnerable victims”. First of all, the Framework Decision does
not breathe a word about the criteria by which a victim may be considered particularly
vulnerable. It is completely up to the Member States’ discretion to define this concept. It
contains also a vague provision, as it mentions that the Member States should ensure a specific
treatment best suited to their circumstances.
• In accordance with article 14, suitable training of personnel should be encouraged.
Because it is totally unclear what exactly should be understood as a “suitable level of
protection/treatment/training”, “appropriate measures”, “ensuring” and “encouraging”, these
provisions inevitably give rise to interpretation issues.
• Reimbursement of victims’ expenses incurred due to participation in the criminal procedure is
regulated in article 7. The reimbursement should be regulated according to the applicable
national provisions. But what happens first of all, if no national provisions regulate the matter?
Secondly, the reimbursement-mechanisms foreseen in the different national legislation can vary
55 For example: Framework Decision regarding protection against euro-counterfeiting, Framework Decision on money
laundering, Framework Decision on combating trafficking in human beings. 56
Marc S Groenhuijsen and Sanra Reynaers, ‘Het Europees Kaderbesluit inzake de status van het slachtoffer in de
strafprocedure: Implementatieperikelen en interpretatievragen’ (2006) 3 Panopticon 24.
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22 Victims’ Rights in Criminal Matters Post Lisbon
widely and this doesn’t really contribute to the purpose of approximating victims’ rights. It is also
unclear what expenses should be covered and to whom these should be charged.57
• Article 9 talks about “adequate compensation” to victims. It is unclear which types of damage
have to be compensated. Every Member State probably includes material and physical damage.
But what about moral damages? What about persons who were economically depending on the
victim, such as the wife or the children of the victim? Some Member States will probably
compensate these types of damages while other don not and as a consequence inequality
emerges. The article mentions that decisions have to be taken within a reasonable time limit,
once again an example of vagueness.
It is difficult, if not impossible for the Member States to give a uniform interpretation to the vague
provisions contained in the Framework Decision. It leaves them with no other option than to
implement the Framework Decision in a manner which they consider as most suitable to reach the
goals of the Framework Decision. The instrument offers a lot of leeway and therefore Member States
will inevitably interpret key concepts differently, which will have a subsequent impact on the practice
in countries. This will hamper the approximation of the victims’ position. In the worst case scenario,
the ambiguous drafting, resulting in a lack of concrete obligations, will keep a lot of Members States
from taking any measures at all. This was shown in the implementation reports.
This observation also explains the considerable differences of opinion between the Commission and
the Member States concerning the obligations deriving from the Framework Decision. The tone of
the Member States-reports was invariably self-satisfied. Member States were convinced that they
met the requirements of the Framework Decision, whereas the Commission evaluated the
compliance with the Framework Decision as extremely negative. This difference in attitude is not
surprisingly having regard to the wide margin of appreciation left to the Member States.58
4. The “partie civile”
Article 5, 6 and 7, which relate to safeguards for communication (translators), to legal assistance and
to reimbursement of expenses incurred due to participation in the criminal procedure, only apply to
victims having the status of witnesses or parties to the proceedings.
Some Member States’ legal system does not foresee the possibility for the injured party to adhere a
claim for compensation to the criminal justice procedure and thus not recognises the status of partie
civile. As a consequence, in these legal systems every victim who is not heard as a witness in the
court case is deprived of the three procedural rights mentioned.
The United Kingdom’s common law system for example, does not recognises a partie civile. It should
not come as a surprise that it was the UK that insisted on the particular phrasing of the articles 5 to 7,
expecting that this would diminish the need for substantial changes in its national legislation. The
potential financial burden of the provided rights might also have to do something with this restrictive
attitude of some Member States.59
57 Ilse Creve, Eva Delanghe and Helga Coppen, ‘Slachtoffer en strafprocedure’ in Gert Vermeulen (ed), Aspecten van
Europees formeel strafrecht (Maklu 2002) 430. 58
MS Groenhuijsen and A. Pemberton, ‘The EU framework Decision for Victims of Crime: Does Hard Law Make a
Difference?’ [2009] European Journal of Crime, Criminal Law and Criminal Justice 58-59. 59
ibid 46.
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23 Victims’ Rights in Criminal Matters Post Lisbon
This example can also be linked to my first remark: the formulation of articles 5 to 7 illustrate one of
the restrictions the Member States included in the Framework Decision to ensure their national
legislation wouldn’t need to be changed too much.
5. Lack of infringement possibilities
The Framework Decision is completely silent about the possibility for the Commission to bring
infringement proceedings against Member States or does not foresee any procedure for individuals’
redress concerning victims’ rights. If victims’ rights are not enforceable or if the repercussions for a
failure to implement are weak, legal practitioners have less incentive to apply victim measures. In
other words, this weakness is inevitably reflected in a lower compliance rate.
I believe it is unrealistic to expect victims to rely exclusively on applications to national courts. These
take a considerable amount of time, effort and money which is likely to reduce the benefit of any
judgement. For this reason it might have been an added value to include a procedure by which
victims could actually enforce their rights.
6. Hidden agenda?
It seems as if the Framework Decision focuses mainly on ensuring cooperation by the victim rather
than looking out for protecting the victim. The provisions aiming at enabling the injured party to
participation in the proceedings, are very detailed and incisive whereas the provisions concerning the
support of the victim are much more vague.
A separate article was included to ensure the victims’ right to be heard, to provide information and
to supply evidence (article 3). This article is pretty straight-forward and does not leave much room
for interpretation. Conversely, the Framework Decision talks about a suitable level of protection and
appropriate measures if necessary (article 8), promoting the involvement of victim support systems
(article 13) and encouraging the training of professionals (article 14). The provision concerning
compensation (article 9) is also filled with unclearness, talking about a decision within reasonable
time limits on compensation, appropriate measures to encourage the offender to provide adequate
compensation.
The way in which these provisions are formulated, does not create the most efficient framework to
prevent secondary victimisation and to safeguard the rights of the individual. The central concern
seems to be quite the opposite: ensuring law enforcement. In other words, the Framework Decision
focuses on what the victim could do for the system, rather than on what the system could do for the
victim.60
This observation can once again be linked to my first remark. It is very plausible that the Council
insisted on certain vague formulations to ensure the obligations on the Member States to adapt their
national legislation were kept to a minimum. In addition, this observations proves that the position
of the victim in criminal proceedings is still not considered a priority in policy-making, whereas law
enforcement, prosecuting the offender and defending society is.
60 Irene Wieczorek, ‘The New Proposal on Victims’ Rights: Law Enforcement or Safeguard for the Rights of the Individual?’
(2011) 2 New Journal of European Criminal Law 344.
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
24 Victims’ Rights in Criminal Matters Post Lisbon
II. Critical remarks concerning the implementation reports
In reviewing the implementation reports, a distinction is made between the Commission reports and
the Victim Support Europe Report.
The Commission reports
1. Value of the written reports
In order to allow the Commission to draft its implementation report, the Member States had to
forward written reports to the Commission in which they had to refer to the text of the provisions
enacting into national law the requirements laid down by the Framework Decision.
These Member States reports are written by the officials responsible for the preparation and
execution of the victims’ rights policy. It is in their best interest to get a positive evaluation of the
Commission. For this reason, it seems unlikely that these reports will be completely in accordance
with the actual situation in the Member States, as flaws and shortcomings in the national
implementation level are probably concealed in the reports. It might have been more representative
to have an independent entity evaluate the national situation.
In addition, the Commission does no have the option to verify the veracity of these reports neither
can it request follow up information.61
The Commission is thus obliged to rely exclusively on the
literal text of the formal legislative provisions supplied by the Member States.
This way, an important part of possible compliance with the Framework Decision is overlooked. A lot
of Member State don not literally transpose the provisions in a formal legislative basis, but
implement them by way of practical adjustments.62
The practical measures would have shed
additional light on the findings of the legal implementation. For this purpose, the Commission could
have consulted parties who are involved with victims, such as NGOs, stakeholders, legal
practitioners, police officers and so on. Their visions really could have been an added value for the
implementation assessment, as they are confronted with victims needs on a daily basis and they
therefore are suitable to evaluate the adequacy of protection in the Member States.63
2. Implementation = transposal
A recurring theme in the Commission’s reports is the apparent need to see transposal in solid formal
legal bases. As long as no national legislation clearly provides for the transposal of the Framework
Decision’s articles, the Commission considers the implementation level unsatisfactory.
“Implementation” is apparently regarded as synonymous with “transposal”. Although, form a
victims’ perspective, it might be wiser to evaluate “compliance”.64
The Commission’s approach is of
course influenced by the fact that it does no have the option to request follow up information in
addition to the information given in the Member State reports. Therefore, the Commission is almost
by necessity restricted to rely exclusively on the literal text of the legislative provisions supplied by
the Member States.
61 Groenhuijsen and A. Pemberton, ‘The EU framework Decision for Victims of Crime: Does Hard Law Make a Difference?’
[2009] European Journal of Crime, Criminal Law and Criminal Justice 49. 62
ibid. 63
Marc S Groenhuijsen and Sanra Reynaers, ‘Het Europees Kaderbesluit inzake de status van het slachtoffer in de
strafprocedure: Implementatieperikelen en interpretatievragen’ (2006) 3 Panopticon 20. 64
MS Groenhuijsen and A. Pemberton, ‘The EU framework Decision for Victims of Crime: Does Hard Law Make a
Difference?’ [2009] European Journal of Crime, Criminal Law and Criminal Justice 49.
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25 Victims’ Rights in Criminal Matters Post Lisbon
This obviously leads to a misjudging of the situation. In the written reports, Member States
repeatedly refer to the actual practice to show a certain right is guaranteed.65
Article 8(3) for
example requires the Member States to create separate waiting areas in courts of law. The UK is well
known to be the most advanced country in the EU in this respect. However, the UK does not have a
legal requirement in its national legislation that prescribes these separate waiting rooms.
Consequently, the Commission does not recognise the UK sufficiently implementing this
requirements.
An important part of the true victims’ rights-policy in the Member States is neglected. Instead of
focusing exclusively on “paper compliance”, it probably would have been more useful to also assess
the strategy, proper budgets, plans, aims, objectives, targets and timetables for an effective policy on
victims’ rights.66
With these standards in mind, one can only truly assess the position a victim has in a
Member State. The adoption of legislative and administrative provisions should not be a goal in itself,
but a means to achieve the goal.67
3. Additional rights
In its implementation report, the Commission repeatedly interprets certain rights in a way that does
not comply with the provisions in the Framework Decision. This observation can be demonstrated
with some examples.
• The Commission has a very specific opinion concerning article 2 that deals with particular
vulnerable victims. The Commission first of all admits that the Framework Decision did not define
the notion “particular vulnerable victims”, nor did the Framework Decision explain what exactly
should be understood as “specific treatment best suited to their circumstances”. Nevertheless,
the report points out that “Spain and Finland mentioned only the existence of financial support”
and that “France only protects information concerning the minors”. In other words, the
Commission gives the impression not to be satisfied with the notified measures of these Member
States.
• With regard to article 3, the Commission suggests that Member States should include a right for
the victim to ask that formalities needed to investigate the criminal acts are carried out.
According to the Commission, this right exists in a couple of Member States and should be
guaranteed in every Member State.
• The Commission is not satisfied with the measures taken by the Member States to meet the right
to receive information, in accordance with article 4. Posting the requisite information on a
website and creating information booklets is not sufficient. The Commission demands the
Member States to be proactive. Authorities need to actively provide information and transmit
information to victims of their own motion.
Although it might be true that the suggestions made by the Commission would in fact improve the
position of victims, it seems unreasonable to expect the Member States to know that these
obligations were included in the Framework Decision while it does not breathe a word about them.
65 For example: art. 4(2), art. 4(3), art. 8(1) and 8(2) and 8(3)
66 MS, Groenhuijsen and RM Letschert, ‘Reflections on the Development and Legal Status of Victims' Rights Instruments’ in
M.S. Groenhuijsen and R.M. Letschert (eds.), Compilation of international victims' rights instruments (Wolf Legal Publishers
2006) 10. 67
Marc S Groenhuijsen and Sanra Reynaers, ‘Het Europees Kaderbesluit inzake de status van het slachtoffer in de
strafprocedure: Implementatieperikelen en interpretatievragen’ (2006) 3 Panopticon 22.
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26 Victims’ Rights in Criminal Matters Post Lisbon
The Commission thus creates additional rights that were never mentioned in the Framework
Decision.
Victim Support Europe Report
The 2009 implementation report did not solely rely on written Member State-reports, but
constructed a questionnaire. It also made a clear distinction between its observation of
implementation at legislative level and at organisational level. The report formulates its own
recommendations concerning each article. This approach is constructive and does not only focus on
the shortcomings of the Member States. Moreover, the recommendations do not only consider the
adoption of formal legislation, but also emphasise the importance of practical efforts, such as
working protocols, funding, timetables and involvement of victim support organisations. Compared
with the implementation reports of the Commission, this report gives a much more elaborated view
on the state of affairs in the Member States. This improved way of evaluation of course does not
change the fact that the Framework Decision still has many flaws.
C. Conclusion
The critical analysis of the Framework Decision revealed the numerous flaws and shortcomings of the
instrument, which can not be seen as minor imperfections but influenced the successfulness of the
Framework Decision as a whole. These shortcomings can be explained by the calculated reservations
of the Council. Instead of drafting an instrument that could truly improve the position of victims in
criminal proceedings within the EU, the main concern of the Council was to reduce as much as
possible the obligations to adjust their national legislation as a result of implementing the
Framework Decision.
This attitude led to an instrument drafted in highly ambiguous terms. Because the provisions have
been drafted in such an ambiguous manner, it became clear that, even if transposed, they may not
make a difference to victims in practice. The most essential provisions of the Framework Decision
concentrate in the main on ensuring that the potential for victims to participate in Member States’
existing criminal procedures is effectively realised, without aiming to fundamentally challenge some
of the legal precepts around which such participation procedures are based. Apparently,
governments and the criminal justice establishment still need continual convincing of the importance
of victims’ rights in criminal justice proceedings.
As for the implementation reports, the sometimes doubtable methods used by the Commission to
assess the implementation level was highlighted. Luckily some improvements could be identified on
this matter in the Victim Support Europe Report.
It should be concluded that the Framework Decision is not qualitatively different from earlier soft-
law instruments. The inclusion of the first hard law instrument in the field of victims’ rights, thus
definitely cannot be equated with the adoption of effective law. The implementation reports have
shown that there is still a gap between improvements in law and policy and actual advances made in
practice on the position of victims. A large proportion of victims still do not receive the support they
need.
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
27 Victims’ Rights in Criminal Matters Post Lisbon
Chapter 2. Council Directive of 29 April 2004 relat ing to compensation to crime victims
In 2004, the Framework Decision was complemented by a Directive relating to compensation to
crime victims (hereafter: the Compensation Directive). The Framework Decision only briefly regulates
the compensation to crime victims and therefore the introduction of a more elaborated instrument
on the matter was needed.
The first section contains the descriptive part. First of all, the background and legal context of the
Compensation Directive will be discussed, followed by the legal basis and the directive as an
instrument. Next, this section considers the content of the Compensation Directive.
Section 2 includes the review of the Compensation Directive. Again, this review will be based on the
implementation level of the instrument, followed by some critical remarks. Subsequently, a
conclusion is formulated.
Section 1. Describing the Compensation Directive
A. Background & legal context
I. Background
Within Europe, there was widespread recognition of the fact that crime victims, in many cases,
cannot obtain compensation from the offender, for example when the offender remains unknown or
cannot be successfully prosecuted or where the offender lacks the means to compensate the victim.
As recognition of this fact, over the years, the majority of the Member States introduced state
funded compensation schemes that allowed compensation to victims of crime for the injuries
suffered. However, these schemes display large differences between them in terms of the criteria
applicable for awarding state compensation. The types of losses that could be compensated varied
greatly and the principles for determining the amount of the compensation displayed large
differences between them also.
This lack of convergence between the compensation schemes in the Member States, creates
differences for the victim, depending on his place of residence or on where a crime is committed. As
a consequence, two persons becoming the victim of a crime, under identical circumstances but in
different Member States, received widely differing amounts in compensation for similar injuries, or
no compensation at all. Besides, a person falling victim to a crime in an other Member State than his
country of residence found it difficult to get access to state compensation in the first place, due to
language barriers and a lack of assistance in coping with the administrative procedures involved.
In other words, these differences created large discrepancies in terms of what crime victims can
actually get. The compensation was completely dependant on in which Member State the crime took
place, which was felt as unfair and arbitrary and not compatible with establishing the EU as an area
of freedom, security and justice for all.
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28 Victims’ Rights in Criminal Matters Post Lisbon
II. Legal context
When discussing the legal context of the Compensation Directive we should definitely refer once
again to the 1983 European Convention on compensation to crime victims. This Convention
undoubtedly had an important impact in stimulating the introduction of state compensation
schemes. However, as demonstrated by the situation in the Member States, it had not reached all
the way in ensuring a complete coverage of all citizens of the EU. Additional action thus had to be
taken in insuring adequate compensation of crime victims.
The European Parliament has, already since the 1980s, shown a strong and continuous support for
improving compensation to crime victims. In 1989, the European Parliament issued a Resolution on
victims of violence68
. The resolution called on the Commission to draw up a draft directive requiring
the Member States to harmonise the amount of compensation for the victims of violent crimes at
the highest level, irrespective of the country of origin of the victim.
In 1999, after the adoption of the Vienna Action Plan, the Commission presented a Green Paper on
compensation to crime victims69
. The Green Paper made a further key contribution to securing State
compensation for crime victims, providing a full response to the Tampere Council recommendations.
It addressed possible objectives of victim compensation in the EU, and took into consideration the
findings of a comprehensive study70
of the position of crime victims in the EU, completed in 2000.
The study was followed up by a conference71
in Sweden, in October 2000. The Green Paper also
reflected upon an in-depth study72
focussing on the state compensation schemes in the Member
States, that was published by the Swedish Crime Victim and Support Authority in September 2001.
The objective of the Green Paper is to launch a consultation process on how to safeguard and
improve State compensation for crime victims in the EU. First of all, the Green Paper gives an
overview of European legislation in this field. Next, it focuses on the state compensation schemes in
operation in the Member States. It puts forward basic questions concerning the need for, and scope
of, action at EU level and it targets the adoption of minimum standards and the position of cross-
border victims.
The Green Paper was the subject of debate within the European institutions, at national level and
within organised civil society. The reactions confirmed by an overwhelming majority that the current
situation regarding compensation of crime victims in the EU was unsatisfactory. After all, the 2001
Framework Decision contains provisions on compensation by the offender, but does not otherwise
address the matter of compensation of crime victims.73
Therefore, additional action was needed to
achieve the objectives put forward in the Green Paper.
The European Parliament too firmly supported the Commission’s Green Paper, adopting a
resolution74
on the subject in 2002. The Economic and Social Committee, who also welcomed
68 European Parliament Resolution on victims of violence [1989] OJ C 256.
69 Commission ‘Green Paper on compensation to crime victims’ COM (2001) 536 final.
70 Anna Wergens, Crime victims in the European Union (Umeå, Brottsoffermyndigheten 2000).
71 The Crime Victim Compensation and Support Authority, ‘Conclusions – The Umeå expert meeting on compensation to
crime victims in the European Union’ Sweden, Umeå 2000. 72 Julia Mikaelsson and Anna Wergens, ‘Repairing the irreparable — State compensation to crime victims in the European
Union, The Crime Victim Compensation and Support Authority’, Sweden, Umeå 2001. 73
Framework Decision, art. 9 74
European Parliament resolution on the Commission Green Paper on compensation to crime victims [2002] OJ C 5-0016.
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29 Victims’ Rights in Criminal Matters Post Lisbon
emphatically the Commission initiative in an opinion75
, proposed a Directive on the compensation of
victims of crime as the most appropriate instrument for action.
The result was the publication of the European Commission’s Proposal for the Compensation
Directive a year later.76
B. Directive: the instrument
A directive is a legislative act of the EU, which requires Member States to achieve a particular result
without dictating the means to actually accomplish that goal. According to article 249(3) TEC77
,
directives are binding as to the result to be achieved. Member States are free to decide on the form
and methods of implementation of the directive into national legislation. Directives are the best
means of harmonizing the legislation between Member States. Unimplemented or badly
implemented directives can have direct legal effect.
C. Legal basis
The objective pursued by the Compensation Directive falls within the overall scope of the provisions
of the Treaty establishing the European Community taken as a whole. Therefore, the legal basis for
the instrument is article 308 TEC78
. This article allows the Council to take the appropriate measures
to attain one of the objectives of the Union in case the Treaty has not provided the necessary
powers. It should be proven that action on EU level is necessary. The Court of Justice of the EU
confirmed the link between the free movement of persons and state compensation.79
The Court held
that the protection of victims of crime is a necessary corollary of the free movement of persons as
guaranteed by the Treaty. It is thus legitimised for the EU to operate in this field. Links to the other
freedoms guaranteed by the Treaty could however not be made. Since a sufficiently direct link
between protecting victims of crime and establishing the internal market could not be made, the
Compensation Directive falls outside the scope of the (then) TEU.
D. Content
The Compensation Directive wants to ensure that ‘crime victims in the European Union are entitled
to fair and appropriate compensation for the injuries they have suffered, regardless of where in the
European Community the crime was committed’. It essentially seeks to set minimum standards, not
to harmonize national laws.80
Article 1 describes the Compensation Directive’s main objective. Member States should guarantee
that the victim of a ‘violent intentional crime’ committed in a Member State in which the victim was
not habitually resident, has the right to submit an application for compensation in the Member State
of residence. The compensation would have to be paid by the ‘competent’ authority of the Member
State on whose territory the crime was committed. (article 2)
75 Opinion of the European Economic and Social Committee on the Proposal for a Council Directive on compensation to
crime victims COM (2002) 562 final. 76
Commission, ‘Proposal for a Council Directive on compensation to crime victims’ COM (2002) 562 final. 77 Article 288(3) TFEU. 78
Article 352 TFEU. 79
Case 186/87 Ian William Cowan v. Trésor public [1989] ECR 195. 80
“Harmonisation would not be appropriate in view of the current differences between the Member States, due to the
close connection to national laws on civil liability and tort and also due to socioeconomic discrepancies.” Proposal for a
Council Directive on Compensation to Crime Victims, COM (2002) 562 final 2002/0247 (CNS), Brussels, 16 October 2002,
p.10.
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30 Victims’ Rights in Criminal Matters Post Lisbon
The Compensation Directive creates a system of cooperation between national authorities for the
transmission of applications for compensation in cross-border situations. Victims of a crime
committed outside their Member State of habitual residence can turn to an authority in their own
Member State (assisting authority) to submit the application and get help with practical and
administrative formalities. The authority in the Member State of habitual residence transmits the
application directly to the authority in the Member State where the crime was committed (deciding
authority), which is responsible for assessing the application and paying out the compensation.
Article 3 therefore instructs the Member States to establish “assisting authorities” and “deciding
authorities”.
The assisting authorities would be responsible for:
• Informing potential claimants about the compensation scheme (article 4);
• Assisting claimants in filling in the compensation application (article 5);
• Transmitting the application to the deciding authorities (article 6);
• Providing guidance to the applicant in case additional documents are required (article 8);
• Organizing a hearing if requested by the deciding authority (article 9).
The deciding authorities would be responsible for:
• Acknowledging the receipt of the application; Providing a contact person in charge of
handling the matter; Indicating an estimated time for the decision to be taken (article 7);
• Informing both the assisting authority and the claimant about the decision (article 10).81
Apart from the assisting and deciding authority, Member States would also have to establish Central
Contact Points that would facilitate the implementation of the Compensation Directive. (article 16)
Article 12 provides that access to compensation to victims of crimes in cross-border situations should
operate on the basis of Member States’ own pre-existing national compensation schemes. Such
schemes should guarantee ‘fair and appropriate compensation’ to victims. If a Member State does
not have a national scheme in place, they would be required to create a ‘compensation mechanism’,
as stated in point 7 of the Recital.
The Compensation Directive remains completely mute on the nature of the expenses eligible for
compensation. The interpretation of what compensation should be paid out to each victim is thus
left to Member States' discretion, provided that it is fair and appropriate.
In terms of management, the Compensation Directive stated that administrative formalities should
be kept to a minimum. (article 3(3)) The instrument provides for two standard forms that should be
used for transmission of applications and decisions. (article 14) Article 17 allows Member States to
introduce more favorable provisions for the benefit of victims of crime.
81 Commission, ‘Report From The Commission to the Council, the European Parliament and the European Economic and
Social Committee, on the application of Council Directive 2004/80/EC relating to compensation to crime victims’ COM
(2009) 170 final.
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31 Victims’ Rights in Criminal Matters Post Lisbon
Section 2. Reviewing the Compensation Directive
A. Implementation
Article 18(1) instructed the Member States to comply with the Compensation Directive by 1 January
2006. As for setting up a national compensation scheme, in accordance with article 12(2), the date of
compliance was 1 July 2005. In line with article 19 of the Compensation Directive, the Commission
presented a Report on the Application of the Directive in 2009. In order to prepare the report, the
Commission requested a study on the application of the Compensation Directive (hereafter: the
study), which was prepared by a contractor, Matrix Knowledge Group.82
I. Matrix Report: Study on the application of the Compensation Directive
Sample survey: Implementation level
For the purpose of assessing the stage of implementation of the Compensation Directive in all EU
Member States, the study undertook a statistical and qualitative quota sample survey. Key contacts
for the survey existed out of assisting and deciding authorities, NGOs and claimants.
The survey highlighted some central observations. All Member States who had implemented the
Compensation Directive, had schemes in place allowing victims to submit an application for
compensation. All these Member States also set up responsible authorities and administrative
procedures, as prescribed in articles 2 and 3. The majority of the Member States also made
information available on measures and methods for informing the potential applicants, mostly
through the internet, leaflets and brochures.
Remarkable is the fact that claimants had a slightly different opinion on the effectiveness of the
Compensation Directive than the deciding and assisting authorities did. The latter were rather
positive on the operation of the current system. They were satisfied with the Central Contact Points,
the use of standard forms, languages and communications technology.
This is in sharp contrast with the experience of claimants, who experienced the process of applying
as too complicated and time-consuming. Language barriers, lack of information and legal advice were
rated as major problems. A lot of victims were not even informed about their right to compensation
in the first place. They did not know where to go or who to turn to for compensation.
As a consequence, it appeared that only a relatively small number of victims actually made use of the
option to apply cross-border for compensation. As for the victims that were actually granted a right
to compensation, a lot of them mentioned dissatisfaction over the adequacy of payment.
Similar observations were made by NGOs, who found that victims were often unaware of the
possibility of claiming for compensation. The application process in some Member States was
criticised as ineffective. Although they believed the Compensation Directive has helped define the
scheme and procedures for authorities to follow and speeded up the process for claiming and
82 Matrix Insight: ANALYTICAL REPORT of the Application of Directive 2001/80/EC relating to compensation to crime victims,
16.10.2008, The application of Directive 2004/80/EC relating to compensation to crime victims EMPIRICAL REPORT,
12.12.2008, and Analysis of the application of Directive 2004/80/EC relating to compensation to crime victims SYNTHESIS
REPORT, 12.12.2008.
< http://ec.europa.eu/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm >.
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32 Victims’ Rights in Criminal Matters Post Lisbon
awarding compensation, the respondents thought that there were still major problems of process,
information and communication to overcome.
Online questionnaire: Interpretation of key concepts
A specific problematic issue was the interpretation of phrases such as ‘violent intentional crimes’,
‘compensation’ and ‘fair and appropriate compensation’. As the Compensation Directive only
provided for minimum standards, the scope of these phrases were left to the appreciation of the
Member States. Key elements of compensation such as what offences to compensate, what injuries
to compensate, who (not) to compensate and at what level to compensate could therefore differ
among the Member States. As a consequence there was often a lack of clarity and transparency
concerning key elements of the different national compensation schemes, which off course is a
major obstacle in the cross-border cooperation process between the different authorities.
The study tried to give an overview of the different interpretations given to these core questions
throughout the Member States. For this purpose, it used an online questionnaire, resulting in these
main findings.
All Member States provided compensation for victims of intentional crimes against the person,
whereby they clearly met the proposed minimum condition. There was less agreement in the case of
the relatives of victims of intentional crimes against the person that result in the victim’s death,
although the number of schemes that indeed covered fatal injury is 2/1 compared with those that do
not. A majority of Member States excluded unintentional injuries, whether to victims or their
relatives. It is clear that the preponderance of Member States provided compensation for both
personal injury and death. There was also a high consensus on the inclusion of disease and mental
injury within schemes.
All but two deciding authorities imposed a time limit for the completion and submission of a claim for
compensation, which most of the times could be extended in certain circumstances (the medical
consequences of the crime on the victim, for example). In contrast, a majority of deciding authorities
did not impose any financial minimum as a threshold to compensation, and in the case of those that
did, the minimum ranges widely.
In basically all schemes, victims who in some way contribute to the circumstances in which they were
injured could have their compensation reduced or their claim rejected altogether. By contrast,
victims who have a criminal record could for that reason not be precluded (in whole or in part) from
compensation in most of the schemes.
As regards the requirement of ‘fair and appropriate’ compensation, the respondents claimed that
their schemes did meet this standard: equity as between the law’s treatment of different groups of
victims was a common response.
Respondents were asked a number of questions concerning the assessment and scope of the
compensation that their schemes provide for. For a majority of respondents the assessment of
compensation was based on their national law of damages for personal injury or death. Some
schemes operates a tariff that fixes a financial value to specified injuries.
In addition to non-pecuniary loss, the vast majority of schemes provided compensation for pecuniary
loss arising from the injury (loss of earnings, for example), and most provided compensation for
longer term disabilities. Similarly, the preponderance of schemes provided compensation to
dependants both for non-pecuniary (bereavement) and pecuniary loss (loss of dependency). The
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33 Victims’ Rights in Criminal Matters Post Lisbon
majority of the Member States adopted the view that a scheme might impose an upper limit on the
total of compensation in any case.
The survey revealed that claimants might benefit from two other sources of compensation. The first
of these is recovery from the offender. The second source is collateral benefits that may accrue from
the state, the claimant’s employer or own insurance policies.
II. Commission report
The Commission used the findings of the study to formulate its own recommendations in it’s report.
The report covers the period of 1 January 200683
to 31 December 2008.
The Commission found that the Member States should ensure that more information on the
Compensation Directive and on national compensation schemes is provided to citizens. Furthermore,
the language requirements of the Compensation Directive should be respected in order to ensure
the most efficient processes for claimants. Finally, clarity and transparency concerning key elements
of national compensation schemes is important. This concerns in particular the questions of which
offences are included in the schemes and which injuries are covered by them.
B. Critical remarks
In the following point, the paper will shed some light on the most problematic issues of the
Compensation Directive and its application in the Member States. The Commission’s implementation
report will also be reviewed.
I. Critical remarks concerning the Compensation Directive
1. Vague provisions
The Compensation Directive is limited to the minimum standards required to achieve the objectives
pursued and does not exceed what is necessary to this end. These so-called minimum standards are
often formulated in an open wording and are therefore pretty vague. To a certain level, the Member
States can rely on the Commission’s Green Paper, which contains a number of questions on the key
issues concerning compensation schemes. Nevertheless, the vague formulation of certain provisions
makes it challenging to achieve the objectives of the Compensation Directive.
“Violent intentional crimes”
Article 1 instructs Member States to ensure a right to submit an application for compensation in case
of “violent intentional crime”.
(a) Violent crimes
Certain offences, such as homicide and serious assaults against a person, will present no definitional
issues. With regard to other offences, the qualification as “violent” seems less obvious. Moreover, in
some national law systems offences such as theft, for example, in itself do not qualify as a violent
crime, but can become violent under certain conditions or as an aggravating circumstance. It is also
unclear whether the assessment of a crime as “violent” should be based on the nature of the crime,
the instrument used to commit the crime, the harm done to the victim or the cumulating of all
83 According to article 18(1) of the Directive, the Member States were to implement the Directive by 1 January 2006 at the
latest.
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34 Victims’ Rights in Criminal Matters Post Lisbon
reprehensive criteria. A crucial question that arises in this context, is whether the national
compensation schemes should leave the phrase ‘violent crime’ undefined or whether they should
specify exactly the offences to be covered. By including such lists of offences, problems of over- and
under-inclusion can arise. On the other hand, not including lists of offences also seems problematic,
as open phrases can result in uncertain application.
(b) Intentional crimes
‘Intentional crime’ shall also be defined in accordance with the law of the Member State where the
crime was committed. The least to say is that it is unclear how exactly ‘intentionally’ should be
interpreted.
First of all, the express use of the qualification ‘intentional’ suggests that offences committed
recklessly will not be included. It may be clear in many cases that the attack was deliberate, but the
assessment of “intentional” becomes a whole lot more complicated where the offender is not
caught. In such cases, it may well prove impossible to assess, on a balance of probabilities, whether
he acted intentionally.
A couple of specific circumstances give rise to questions on the limits of the compensation schemes.
For example, accidental injuries sustained by rescuers who go to the aid of another person under
attack or to the police in the execution of their duties. What limits on such accidental injury should
the compensation scheme impose? Moreover, should the fact that the offender cannot be convicted
because of his mental condition, or is below the age of criminal responsibility, be relevant in
assessing the intentionality aspect?
It is not a surprise that the enforcement of the distinction between intentional and unintentional
crime is likely to prove very difficult for the claims agency. As for certain sensitive crimes, it might
also be politically difficult to defend.
‘Fair and appropriate compensation’
The interpretation of the phrase ‘fair and appropriate compensation” is left to the Member States.
Underlying the interpretation of this requirement lies a yet more profound question concerning the
philosophy of a compensation scheme, to which many different, and conflicting, answers may be
given. A couple of potential uncertainties can be mentioned.
First of all, it is unclear what purpose a “fair and appropriate compensation" should serve. Does it
aim to achieve what in effect would be the same result in a civil action? Or does it serve only some
symbolic purpose and to recognise the injury? Moreover, what should be understood as ‘fair’ and
compared to whom should the compensation be fair? Should the financial position of the claimants
be taken into account when assessing a ‘fair and appropriate’ compensation. In other words, what is
the relevance of their own capacity to meet the costs of the injury or in the case of a fatality, the loss
of dependency?
The problematic interpretation of the phrase ‘fair and appropriate’ is also illustrated by the
questionnaire. Member States were asked whether they considered their compensation schemes to
be “fair and appropriate” and if so, why. Of the seventeen Member States who answered the
question, sixteen said ‘yes’, yet there was a range of different reasons given as to why their schemes
should be considered as “fair and appropriate”. Some Member States considered their schemes as
fair because they provided the same levels of compensation for all claimants, some mentioned the
fact that claimants are fully compensated for their injuries without limit. This illustrates the different
interpretations of the notion “fair and appropriate”
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
35 Victims’ Rights in Criminal Matters Post Lisbon
‘As quickly as possible/ as soon as possible’.
Article 6, 7, 8 and 10 encourage the assisting and deciding authorities to transmit the application,
send (supplementary) information and send the decision on the application for compensation “as
quickly as possible” and “as soon as possible”. Anyone could have predicted that these formulations
would inject uncertainty. Claimants and officials can interpret them very differently, to their own
best interest, and this of course inevitably sows the seeds of conflict into the cooperation system.
The survey respondents’ reaction towards questions that sought to elicit information especially
about the time dimension of settling applications, prove this point. These questions knew a
remarkably high and heavy rejection rate, which illustrate that in practice there is no consensus on
“handling applications as quickly as possible”.
In the survey, NGOs indeed reported application processes that took up to 3-4 years, which obviously
is not a reasonable period of time and certainly does not comply with handling matters “as soon as
possible”.
It is to be regretted that the provisions on handling applications were not stipulated in a more
straight-forward way, for example by including concrete and compulsory timetables for settling
application. Especially since it would be in the best interest for the victim to receive a decision on the
application for compensation within a reasonable and fixed amount of time. The sooner the
application for compensation is handled with, the sooner the victim can move on with his life.
Moreover, it is important for the victim to know whether he can rely on compensation, since the
denying of it can have great impact on his financial situation.
Conclusion
To summarise my point of view, there is no ‘right’ or universally accepted answer to most of the core
questions a Member State needs to answer as a matter of policy in order to create a compensation
scheme. More concrete minimum standards should have been defined in terms of both content of
the Compensation Directive and timescales.
2. Greater clarity about the compensation schemes
The Compensation Directive required Member States to set up schemes facilitating access to
compensation for victims of crime in cross-border situations, based on their own national
compensation schemes. As mentioned before, the interpretation of key concepts of the national
schemes differs widely. As a consequence, many employees of the deciding and assisting authorities
do not have sufficient knowledge of the different cross-border victim compensation schemes and
associated processes. Some Member States’ schemes know disproportionate formalities and
procedures. Therefore, several deciding authorities try to avoid cross border cases as they consider
these too problematic.
Knowledge and clarity about the different schemes, could be improved by being straight forward as
to what offences are included within the different schemes. In addition, the injuries covered should
be defined as straight forward as possible, as should the notion of ‘eligible victims’. Moreover, there
should be a clear-cut interpretation of key eligibility criteria, such as time limits for applications,
financial minima, reporting to and co-operating with the authorities and the relevance of the victim’s
own conduct in the crime in which the injury was sustained.
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
36 Victims’ Rights in Criminal Matters Post Lisbon
3. Assisting and deciding authorities: developing an effectively integrated system
The exact responsibilities of assisting and deciding authorities and the specifications for their
cooperation are not clearly defined in the Compensation Directive. As a consequence, it appears that
in practice the prescribed assisting and deciding authority are in most of the Member States the
same officials playing different roles, sometimes in a central organisational context, sometimes in
decentralised units.
So as to reduce bureaucracy and make it easier for citizens of the Member States to exercise the
rights provided for in the Compensation Directive, a simplification of the current structure is needed.
Particular reference must be made to the law applicable in each case and the relevant distinction
between the law of the victim's State of residence and the law of the Member State in which the
crime was committed.
Another non deniable problem on the level of the deciding and assisting authorities is the language
issue. Many of the authorities’ employees do not have sufficient language skills and article 11 does
not provide a satisfactory solution to this problem. Therefore, further action needs to be taken. As
the Matrix study suggests, it might be a good idea to translate standard forms and derivations from
them requested by Member States into all EU languages and make them available as a download on
the internet. In addition, the issue of translation costs must be addressed.
Overall, I firmly support the idea of creating an overarching European forum for national victim
compensation schemes and their NGO stakeholders. Such forum could improve integration and
foster development by ensuring a suitably restricted professional service. It could provide
information to the Member States and to claimants on EU level information and requirements,
details of national schemes, details of central contact points, standard forms and translation services.
It could also be helpful to provide victims with a point of contact to ask for advice in throughout the
procedure.
II. Critical remarks concerning the implementation report
Overall, the approach adopted by the Commission to assess the implementation of the
Compensation Directive is a huge improvement compared to the Commission reports on the
implementation of the Framework Decision. As mentioned before, the Matrix study designed a
questionnaire in order to collect a considerable amount of detailed information from the Member
States and from a range of stakeholders involved in the protection of victims’ rights. Although this
methodology should in itself guarantee an in depth and comprehensive evaluation of the application
of the Compensation Directive, some critical observations still have to be highlighted.
1. Lack of accurate data
The study suffered from a lack of accurate data because of operational difficulties with response
rates.
First and foremost, the survey was restricted to a small number of official contact points in each
Member State providing information from a single perspective. Even though it was the surveys initial
aim, NGOs were ultimately never used as a means of contacting claimants. Moreover, in the majority
of States there was no proper distinction made between deciding and assisting authority.
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
37 Victims’ Rights in Criminal Matters Post Lisbon
Furthermore, there was an unusually high level of non-response. Questionnaire respondents chose
to complete certain parts of the questionnaires, but rejected other parts of the questionnaire. Non-
response to the questionnaire was not a random phenomenon, but was purposeful and selective.
The explanation of the high level of non-response is twofold.
First of all, it seems plausible that the questionnaire was over-structured for the majority of schemes
at that stage in their development. The willingness of national officials to invest in detailed research
procedures at this point in the development of cross-border victim compensation schemes was thus
overestimated. Many respondents might have felt that the level of detail being asked of them was
disproportionate and exceeded their capacity.
In addition, given the open formulation of certain key provisions and, as a consequence, the wide
variety of interpretations given to them in the Member States, it might be basically impossible to
prepare questions which have meaning and relevance across all the jurisdictions involved. Some
questions might not apply or appear to be too detailed to certain compensation schemes. The fairly
high level of non-response is therefore to be expected.
Some questions, for example about the efficiency and effectiveness of communication, knew more
non-response rate then others.
Information for traveller’s pre- and post- victimisation
In the context of lack of data, I would like to shine a light on a specific issue, namely the striking high
rejection rates observed for the touristic areas of the EU. There are frequently complications in these
areas, as tourists run a high risk of becoming the victims of criminal events. They spend more time
out in public, they present an obvious target for criminals and they often antagonise and provoke
local residents by their behaviour.
Especially in the touristic areas of the EU, the implementation of the Compensation Directive may
therefore impose onerous and time-consuming efforts. Therefore, they probably did not comply with
the Compensation Directive as they should have done and this explains the reluctance of the
respondents from touristic areas in the EU.
These areas definitely should be encouraged to comply with the Compensation Directive and to
invest in their national schemes. Also tourists should be given information on cross- border
compensation schemes.
C. Conclusion
The objective of the Compensation Directive was to introduce minimum standards in order to ensure
that all crime victims across Europe are entitled to fair and appropriate compensation. The critical
analysis of the instrument has shown that the instrument failed to provide clear-cut definition of key
concepts, for example regarding the eligibility criteria, time-limits, budgetary schemes and the
minimum level of compensation.
The online questionnaire demonstrated the consequence: there is no unanimity on how the most
essential elements of compensation schemes should be interpreted and Member States therefore
interpret them in accordance with their own national legislation. This led to the setting up of national
compensation schemes which still differ considerably from one another. The lack of clarity and
transparency is thus maintained as a major obstacle in the cross-border cooperation process. For this
reason, victims who were victimised in another Member State than their State of residence are still
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38 Victims’ Rights in Criminal Matters Post Lisbon
subject to different treatment, depending on the victims’ State of residence or on the Member State
in which the crime was committed.
The sample survey showed that in most of the cases, cross-border victims are not informed about
their right to compensation. In the few cases where these victims actually make use of their right to
apply for compensation, the procedure turns out to be time-consuming and complex. They also
suffer from language-barriers and inadequate payment mechanisms.
Even with the adoption of a specific compensation instrument, victims within the EU are not
guaranteed an equal level of compensation. The added value of the Compensation Directive is
therefore questionable. The instrument should be considered as a failed attempt to adequately and
consistently regulate the right to compensation for all victims across Europe. Once again, it should be
emphasised that the adoption of a hard law instrument does not necessarily guarantees an effective
response to victims’ needs.
When the EU issued the Compensation Directive in 2004, its general objective was for victims to
receive the same right to compensation regardless of which Member State the crime has taken place
in. It may be that a Compensation Directive that involves enforced collaboration between random
pairs of Member States, is much more challenging than may appear at first sight. The challenge may
even increase whit each Member State having a different culture, criminal justice system,
administrative structures and investment in social protection to contend with.
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39 Victims’ Rights in Criminal Matters Post Lisbon
PART 3. VICTIMS’ RIGHTS IN CRIMINAL MATTERS POST LISBON
Due to the poor and inconsistent transposition of the available EU victims’ rights instruments pre
Lisbon, namely the Framework Decision and the Compensation Directive, the existing rules turned
out to be largely insufficient. As a consequence, serious problems as well as significant inefficiencies
remained. The role and needs of victims in criminal proceedings were still generally not sufficiently
met and the level of victims’ rights protection continued to differ significantly form Member State to
Member State. Focus was still primarily on security and enforcement. This problematic observation
led to the EU putting victims again at the heart of the criminal justice agenda of the EU. The Treaty of
Lisbon, together with its Stockholm Programme, was the first step towards this new area of victims’
rights. The call for action embedded in these instruments led to the introduction of a comprehensive
Victims’ Rights Package. In the following chapter 1, these elements will be elaborated.
Chapter 1. Legal context post Lisbon
Section 1. Introduction of a legal basis
With the Treaty of Lisbon84
, a clear legal basis was introduced for the EU to act in the field of victims’
rights.
Article 82 (2) TFEU provides the following:
To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police
and judicial cooperation in criminal matters having a cross-border dimension, the European
Parliament and the Council may, by means of directives adopted in accordance with the ordinary
legislative procedure, establish minimum rules. Such rules shall take into account the differences
between the legal traditions and systems of the Member States.
They shall concern:
(a) mutual admissibility of evidence between Member States;
(b) the rights of individuals in criminal procedure;
(c) the rights of victims of crime;
(d) any other specific aspects of criminal procedure which the Council has identified in
advance by a decision; for the adoption of such a decision, the Council shall act unanimously
after obtaining the consent of the European Parliament.
Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from
maintaining or introducing a higher level of protection for individuals.
84 Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2010]
OJ C 83/01. of 30 March 2010.
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40 Victims’ Rights in Criminal Matters Post Lisbon
A first point of attention goes to some important substantive limitations contained in the article. The
legal evidence measures taken, shall only concern the following aspects: mutual admissibility of
between Member States, the right of individuals in criminal procedure and the rights of victims of
crime. Furthermore, the provision includes some procedural limitations. The provision can only be
applied to the extend necessary to facilitate mutual recognition and police and criminal law
cooperation. Next, it must have a cross-border dimension. Third, the differences between the legal
traditions and systems of the Member States must be taken into account. And finally, only minimum
rules can be adopted.
As regards civil aspects, article 81 TFEU provides the legal base to take measures aimed at ensuring
the mutual recognition and enforcement between Member States of judgments and of decisions in
extrajudicial cases and affective access to justice. It also foresees the adoption of measures for the
approximation of the laws and regulations of the Member States.
Section 2. The Stockholm Programme 85 & its Action Plan 86
First of all, both the European Parliament and the European Council have called for action in the area
of victims’ rights.
In May 2009 the European Parliament adopted a Recommendation on the development of an EU
criminal justice area87
, in which it called upon the Council to restart working on safeguarding
fundamental rights and to notably adopt without delay a comprehensive legal framework offering
victims of crime the widest protection, including adequate compensation and witness protection,
especially in organised crime cases.
On account of its Justice and Home Affairs meeting in October 2009, the Council adopted a
Conclusions on a strategy to ensure fulfilment of the rights of and improve support to persons who
fall victim to crime in the European Union, in which it emphasised that ensuring fulfilment of the
rights of and improving support to persons who fall victim of crime throughout the EU should be
given higher priority. It considers that, to that end, there is a need to agree on a common strategy,
which will guide future work in this area, while taking into account the different legal systems of
Member States and the roles of victims in those systems.
In line with the Recommendation of the European Parliament and the Conclusions of the Council, a
new multi-annual programme in the Area of Freedom, Security and Justice for the period 2010-2014,
the so-called Stockholm Programme, was approved by the Council in December 2009. This
Programme follows the previous Tampere (October 1999) and The Hague Programmes (November
2004).
In order to ensure an integrated and coordinated approach to victims, the Council called in the
Stockholm Programme on the Commission and the Member States to:
85 European Council The Stockholm Programme – An open and secure Europe serving and protecting citizens [2009] OJ C
115/01 86
Commission, ‘Action Plan Implementing the Stockholm Programme’ COM (2010) 171 final. 87
European Parliament Resolution on the development of a European Union criminal justice area [2009]
< http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2009-0386&language=EN >.
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41 Victims’ Rights in Criminal Matters Post Lisbon
• examine how to improve legislation and practical support measures for the protection of
victims and to improve the implementation of existing instruments,
• offer better support to victims in other ways, possibly through existing European
networks that provide practical help, and put forward proposals to that end,
• examine the opportunity of making one comprehensive legal instrument on the
protection of victims, by joining together the 2004 Council Directive relating to
compensation to crime victims and 2001 Council Framework Decision on the standing of
victims in criminal proceedings, on the basis of an evaluation of these two instruments.
Moreover, increased use of the financing programmes should be made in accordance with their
respective legal frameworks.88
On 20 April 2010 the Commission adopted a Communication on an Action Plan implementing the
Stockholm Programme, which contains concrete actions and clear timetables to meet current and
future challenges. The Commission also identified strategic priorities in its Work Programme for
2011.89
Action Plan
In its Action Plan, the Commission pointed out the current differences in the guarantees provided to
victims of crime and terrorism across the 27 Member States and the need to analyse and reduce
those differences, with a view to increasing protection by all means available.90
Moreover, effective
prosecution and conviction should be as important as attending to the needs of the victims of these
crimes and reducing the demand for services from potential victims.91
Work Programme
The Commission listed the rights of and support to victims of crime as a strategic initiative in its 2011
Work Programme. It states that it will propose a Directive on the rights of victims of crime, to help
ensure access to sufficient legal assistance, justice and protection for citizens across all Member
States. In order to enhance mutual trust between judicial authorities and citizens, the Commission
will also continue to make legislative proposals for introducing minimum standards for procedural in
criminal proceedings, notably in the field of legal assistance and legal aid.92
Section 3. The Victims’ Rights Package
On 18 May 2011, following the Stockholm Programme and its Action Plan, the Commission presented
a Communication on Strengthening Victims’ Rights in the EU93
in which it launched a package of
proposals expanding the existing measures on victims’ rights adopted at EU level. The proposals
seeks to provide clear and concrete rights for victims of crime, and to ensure recognition, respect,
protection, support and access to justice no matter where in the EU they come from or live.
88 The Stockholm Programme - p.10.
89 Commission ‘Communication form the Commission to the European Parliament, the Council, the Economic and Social
Committee and the Committee of the Region - Commission Work Programme’ COM (2010) 623 final. 90
Action Plan - p.3. 91
Action Plan - p.7. 92
Work Programme - p.7. 93
Commission, ‘Communication From the Commission to the European Parliament, the Council, the Economic and Social
Committee and the Committee of the Regions, Strengthening victims' rights in the EU’ COM (2011) 274 final.
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42 Victims’ Rights in Criminal Matters Post Lisbon
While building on and complementing existing instruments, the Commission’s proposal aims to
strengthen the legal framework by introducing directly binding and properly enforceable legal
instruments. The main objective is to counter the victims’ rights instruments by use of languages
which codifies the obligations on Member States more clearly.94
This way, victims should be given
the same non-discriminatory minimum level of rights, services and access to justice, everywhere in
the EU.
This section offers an outline of the preparatory work that was carried out for the drafting of the
Victims’ Rights Package. Next, it will highlight the legal elements and the Roadmap supporting the
Package.
A. Preparatory work
Together with the Victims’ Rights Package, the Commission presented its Working Paper on an
Impact Assessment95
. The Commission started out with ensuring that “it followed its standards on
consultations” when developing the Minimum Standards Directive. These “standards” are to be
understood as the consultation of experts from different backgrounds, such as governments, law
enforcement agencies, NGOs, international organisations and universities. These parties all got the
opportunity to reflect their visions on the idea of creating a new victims’ rights instrument.
To support the preparation of the Impact Assessment, the Commission contracted an external
study96
. The external study, contracted by Matrix Insight included a multi-method research approach,
including extensive desk research, expert consultation (interviews, workshop), Member State
consultation (online survey, telephone interviews with competent authorities), validation (expert
peer review), and economic modelling of costs and benefits. The study assessed the quality of
evidence around costs and benefits of potential policy options pertinent to the Commission’s Impact
Assessment. Additionally, the results of two surveys were used to prepare the Impact Assessment.
During the preparation process of the Impact Assessment, the Commission also instructed a public
consultation. This way, stakeholders received the opportunity to present their views on existing
difficulties and suggestions for concrete actions that could be developed at EU level. The public
consultation was organised by Matrix Insight by way of a consultation questionnaire: Taking Action
on the Rights, Support and Protection of Victims of Crime and Violence97
. The majority of respondents
were NGOs/think tanks (including victim support organisations), citizens and the judiciary. Law
enforcement parties, such as police officers, national governments and academics were also
consulted, but their contribution was more restricted.
In brief, the consultation process highlighted the importance of action in the following areas: the
victims’ right to privacy must be protected, they should be provided with some type of immediate
assistance and translation and interpretation are crucial to ensure that victims fully understand their
rights and the information they are given. Additionally, minimum standards should apply to
Restorative Justice proceedings. The importance of Victim Support Organisations for providing
94 Neil Paterson and Gert Vermeulen, ‘Developing a Framework For The Legal Rights of Victims & Witnesses - What Can
European Institutions & The International Criminal Court Learn From Each Other?’ in M Cools and others (eds), Readings on
Criminal Justice, Criminal Law & Policing (Maklu 2009) 155. 95 Commission Staff Working Paper – Impact Assessment [2011] < http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2011:0580:FIN:EN:PDF >. 96 Matrix Insight, A Study for an Impact Assessment on Ways of Improving the Support, Protection and Rights of Victims
across Europe [2010] < http://ec.europa.eu/justice/criminal/files/matrix_2010_ia_final_report_en.pdf >. 97
Matrix Insight, ‘Analysis of Public Consultation Responses: Taking Action on the Rights, Support and Protection of Victims
of Crime and Violence’.
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43 Victims’ Rights in Criminal Matters Post Lisbon
effective services to victims is emphasised. They need continuous financial assistance and the
importance of their work must be recognised by national governments. The Report stresses the need
for cooperation and best practice sharing between all organisations involved with victims within a
Member State and across the EU. In doing this, a balance should be sought between victims’ rights
and defendant’s rights during criminal proceedings. The results of all of the various consultations
have been used extensively for the problem definition and the identification and analysis of policy
options.
The Impact assessment: the results
In the final Commission Impact Assessment, it was concluded that the “medium prescriptive option”
would be the most desirable. This option is designed to strengthen the support service for victims
and improve practices in restorative justice and victim compensation. Victim support services are
well placed to accompany victims throughout all stages during the aftermath of the crime and
provide emotional, practical and material support.
It cannot be denied that the Commission pulled out all the stops to prepare its Victims’ Rights
Package. More or less all interested parties were asked to share their views. The Commission did not
restrict itself to basic research, but introduced studies on different levels, concerning different
elements. Compared with the partial, shallow and out of order preparatory work of the legal
instruments discussed in Part 2 of the paper, the current approach is definitely an improvement. It is
to be seen, whether this advanced approach will actually make a difference when it comes to the
adequacy of the legal instruments contained in the Package.
B. Legal elements
I. Directive establishing minimum standards on the rights, support and protection of victims of
crime
First and foremost, the Commission introduced a Proposal for a Directive establishing minimum
standards on the rights, support and protection of victims of crime (hereafter: Minimum Standards
Directive). Initially, and as prescribed in the Stockholm Programme, the Commission’s intention was
to combine and update the provisions of both the 2001 Framework Decision and the 2004
Compensation Directive within one comprehensive legally binding new directive. Eventually, it was
decided that the Minimum Standards Directive would replace only the Framework Decision. The
Commission assures it will review the Compensation Directive in the next phase of action on victims’
rights.98
The Minimum Standards Directive will ensure that victims are treated with respect and that special
needs for vulnerable victims are properly addressed. Victims should receive the support they need,
relevant and understandable information and protection throughout criminal investigations and
court proceedings. Moreover, they should be able to participation in proceedings.99
II. Regulation on mutual recognition of protection measures in civil matters
In addition, the Victims’ Rights Package includes a new mutual recognition mechanism designed to
help protect victims of violence from any further harm by their attacker. It wants to ensure that
victims, or potential victims, who benefit from a protection measure in their Member State of
98 Commission Communication - p.9.
99 Commission Communication - p.8.
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44 Victims’ Rights in Criminal Matters Post Lisbon
residence, do not lose this protection when they travel or move to another EU country. To this end,
the Commission presented a Proposal for a Regulation on mutual recognition of protection measures
in civil matters (hereafter: the Mutual Recognition Regulation). At the rime of writing, the proposal is
awaiting Parliament’s 1st reading.
This instrument, dealing with protection orders taken in civil matters, complements a Member
States' initiative of September 2009 for a Directive on the European Protection Order (hereafter: the
EPO Directive). The EPO Directive was adopted on 13 December 2011 and ensures the mutual
recognition of protection measures taken in criminal matters. It became clear that the EPO Directive
in itself would not be compatible with the ambitious standard of mutual recognition already reached
for civil matters, covered by article 81 TFUE. Therefore, a need was identified to complement the
EPO Directive with a legal instrument on the mutual recognition of protection measures taken in civil
matters.
III. Non-legislative measure
In addition to and in parallel with these legislative action, the Commission will implement a range of
flanking measures that will be crucial to ensure that victims obtain effective rights in practice, and
not necessarily only when involved in criminal proceedings. This will include training and capacity
building, exchange of good practices, prevention of crime and violence, data collection and research.
The Commission also guaranteed financial support to promote issues relevant to victims’ rights and
needs.
C. Roadmap
To support the Commission’s initiative and complement it by other legislative and non legislative
measures, the Council introduced a coordinated and integrated approach to the various issues at
stake in a Resolution on a Roadmap for strengthening the rights and protection of victims, in
particular in criminal proceedings100
in June 2011. This Resolution gathered the necessary measures
aimed at enhancing the protection of victims in the EU, including those set out in the Commission
proposal, in a single coherent document. This way, the Council sets out the guiding principles for EU
action in this fields. The Resolution invites the Commission to submit the appropriate proposals
regarding all of the measures and to commit the Council to examining them as a matter of priority.
The text stated that action at EU level directed at strengthening the rights and protection of victims,
should aim to introduce common minimum standards. The Roadmap laid down as a priority measure
the revision of both the Framework Decision and the Compensation Directive. In addition, the
introduction of an instrument on mutual recognition of protection measures for victims taken in civil
matters should complement the EPO Directive. The Council also prioritised the introduction of
guidelines on best practices among the Member States and recommendations on how to deal with
the specific needs of vulnerable victims and victims of particular types of crimes.
The next two chapters will be devoted to the EPO Directive and the Minimum Standards Directive.
100 Resolution of the Council of 10 June 2011 on a Roadmap for strengthening the rights and protection of victims, in
particular in criminal proceedings [2011] OJ C187/1.
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45 Victims’ Rights in Criminal Matters Post Lisbon
Chapter 2. Directive of 13 December 2011 on the Eur opean Protection Order
As outlined above, the EPO Directive, concerning mutual recognition of protection measures in
criminal matters, complements the Mutual Recognition Regulation on civil matters. As this paper
covers “Victims’ rights in Criminal Matters Post Lisbon”, the latter will not be analysed in greater
detail. The EPO Directive on the other hand, will be explored more in-depth, as it regulates issues
that fall within the scope of this paper.
Section 1 is again descriptive, covering the background, legal context, legal basis and the directive as
an instrument. Lastly, the content of the EPO Directive will be included in this section.
In a second section, the EPO Directive will be evaluated, followed by a conclusion.
Section 1. Describing the EPO Directive
A. Background & legal context
I. Background
The situation for victims of course-of-conduct crimes, such as stalking or domestic violence, was
recognised as much more complicated than that of crime victims who are affected by non-recurrent
or incidental crimes, such as a single robbery or assault. In the majority of the cases, the offender has
a personal relationship with the victim or is obsessed with him. Consequently, the risks for these
victims to become victimised more than once by the same offender, were much higher than the
chances for the average victim.
Victims of course-of-conduct crimes remained under a constant threat. As it is an important need for
the victim to feel safe again after being violated, these crimes led to the victim’s inability to recover
from the offence. The chronic, psychological nuisance in combination with the insecurity whether a
new assault will take place, made these crimes much harder to bare than a single physical assault.101
It was therefore felt that the victims of course-of-conduct crimes by the same offender show an
additional need for protection against recidivism. Over the years, Member States had started to
enact legislation authorising protection orders. These orders requires the offender to do, or to
refrain from doing certain acts in order to protect the victim. The protection measure could for
example prohibit the offender from entering certain places, prohibit him to approach or contact the
protected person, and so on. The problem is that these protection orders were only effective within
the territory of the Member State that adopted them. For this reason, victims who wished to cross
borders were seriously impeded as they did no longer enjoy the protection granted by the protection
measure. The EPO Directive wanted to fill this legal vacuum that allowed offenders to re-approach
their victims once they crossed the border.
101 R Purcell, M Pathé and PE Mullen, ‘Association between stalking victimisation and psychiatric morbidity in a random
community sample.’ [2005] British Journal of Psychiatry 416-420.
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46 Victims’ Rights in Criminal Matters Post Lisbon
II. Legal context
This concern was already envisaged earlier in the Stockholm Programme, which foresees that
"victims of crime or witnesses who are at risk can be offered special protection measures which
should be effective within the Union".102
The Stockholm Programme recognised that "those who are
most vulnerable or who find themselves in particularly exposed situations, such as persons subjected
to repeated violence in close relationships, victims of gender-based violence, or persons who fall
victim to other types of crimes in a Member State of which they are not nationals or residents, are in
need of special support and legal protection".103
The European Parliament also called for action on different occasions, specifically concerning the
position of victims of domestic violence.
On 2 February 2006, the European Parliament issued a Resolution on the current situation in
combating violence against women and any future action104
in which it recommends that Member
States formulate a zero-tolerance policy as regards all forms of violence against women and calls on
Member States to take appropriate measures to ensure better protection of and support to actual
and potential victims.
In its November 2009 Resolution on the elimination of violence against women105
, the European
Parliament called on the Member States to improve their national laws and policies to combat all
forms of violence against women and to act in order to tackle the causes of violence against women.
The Parliament called on the Union to guarantee the right to assistance, protection and support for
all victims of violence.
The EPO Directive was the answer to these calls for action. The instrument was a joint initiative of
twelve EU Member States. The EPO Directive basically wants to ensures that the protection provided
to a person in one Member State is continued in any other Member State to which the person
moves.
Within the context of the preparatory work of the EPO Directive, the Member States were consulted
through a questionnaire106
(the EPO-questionnaire) drawn up by the Spanish Presidency on the
envisaged instrument in December 2009. The Member States were asked to provide information on
their native protection order regimes. All Member States appeared to have victim protection
measures of some kind which vary in type and classification and may be adopted under different
systems in criminal or civil proceedings or, in some instances, by administrative decision.
At first sight, it seemed as if there was a common feeling among the Member States that such an EPO
Directive could be helpful in the protection of victims. Nevertheless, when taking a closer look at the
answers of several Member States, it became clear that some Member States were not convinced of
the added value of the proposed instrument.
The main objection raised concerned first of all the question whether there was a real need in
practice for the EPO Directive. Cases in which a person continues to be in danger after he moved
102 Stockholm Programme - point 3.1.1.
103 Stockholm Programme - point 2.3.4.
104 European Parliament Resolution on the current situation in combating violence against women and any future action
[2006] OJ C 288. 105
European Parliament Resolution on the elimination of violence against women [2009] OJ C 285. 106
Council Document No 5002/10 Note from the General Secretariat to the Working Party on Cooperation in Criminal
Matters on the European Protection Order (Answers by delegations in reply to the questionnaire.
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47 Victims’ Rights in Criminal Matters Post Lisbon
from one EU Member State to another and is unable to get a protection order in the Member State
to which he moves, are bound to be exceptional. In addition, a number of respondents mentioned
two new Framework Decisions, the Framework Decision on probation measures107
and the
Framework Decision on supervision measures108
which improve the protection of the victims in
comparison to the current state significantly and therefore might already partly cover the problem.
The inclusion of administrative and civil protection orders is objected by several Member States and
some representatives questioned the effects the EPO Directive will have on the (financial) capacity of
their criminal justice systems. It was repeatedly argued that the victim might be in a better position
to apply for a protection order on the basis of national law of the Member State to which he moved.
This would ultimately guarantee faster and better protection, rather than having the original order
recognised by the new Member State. A couple of Member States drew the attention to potential
problems and difficulties that can arise due to substantial differences between mechanisms of victim
protection chosen in each Member State.
The preparation of the EPO Directive also included several studies. First of all, a study was contracted
to examine options in relation to the specific objective of ensuring that the protection gained
through a protection order is not lost when a protected person travels or moves to another Member
State.109
Within the framework of the Daphne Programme the Commission contracted a feasibility study110
to
assess the possibilities, opportunities and needs to standardise national legislation on violence
against women, violence against children and sexual orientation violence. The study was finalised in
2010.
The Council also examined various policy options in an impact assessment. Policy option C included a
legislative proposals to amend the Framework Decision on probation measures and the Framework
Decision on supervision measures. Amended versions of those Framework Decisions could
incorporate a protection mechanism for those cases where it is the victim who moves to a State
other than the one which adopted the measure. Option D contained a legislative proposal for a single
text covering all scenarios relating to the extension of victim protection.
Options C and D were found to offer the best ways to deal with the issue and to meet the objectives
identified in full. The preferred option would be option D in the light of the legislative consequences
of existing instruments, the need for clarity when applying new legislative texts and the usefulness of
having a legislative text specifically designed to deal with victim protection across borders.
107 Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual
recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative
sanctions [2008] OJ L 337/102. 108
Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the
European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional
detention [2009] OJ L 294/20. 109
Hess Burkhard, Feasibility Study: The European Protection Order and the European Law of Civil Procedure
< http://ec.europa.eu/justice/index_en.htm > 110
Feasibility study to assess the possibilities, opportunities and needs to standardise national legislation on violence
against women, violence against children and sexual orientation violence [2010]
< http://ec.europa.eu/justice/funding/daphne3/daphne_feasibility_study_2010_en.pdf >.
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48 Victims’ Rights in Criminal Matters Post Lisbon
B. Directive: the instrument
The legal instrument chosen for the mutual recognition of protection orders in criminal matters is the
directive. The Treaty of Lisbon foresees the use of directives as legal instrument in article 288 TFEU
and left the definition unchanged compared to directives pre Lisbon. A directive is thus still binding
upon each Member State to which it is addressed as to the result to be achieved, but leaves it to the
national legislator to choose the form and methods.
It should be pointed out that the legal instrument chosen for the mutual recognition of protection
measures in civil matters is a regulation, based on article 288 TFEU. A regulation has general
application. It is binding in its entirety and directly applicable in all Member States. A regulation thus
becomes immediately enforceable in all Member States and does not need to be transposed into
national law by means of implementing measures. They therefore constitute one of the most
powerful instruments of EU law.
After adoption, the Mutual Recognition Regulation will have immediate effect, while the EPO
Directive has to be implemented in national law by the EU Member States.
C. Legal basis
The legal basis for the EPO Directive is article 82(1) (a) and (d) TFEU, relating to cooperation in
criminal matters. Article 82(1) TFEU provides that judicial cooperation in criminal matters in the
Union shall be based on the principle of mutual recognition of judgments and judicial decisions.
A reference to article 81 TFEU was not added, since this provision concerns judicial cooperation in
civil matters. In addition, a reference to article 81 TFEU would be legally impossible. The EPO
Directive is adopted on the initiative of the Member States, on the basis of article 76(b) TFEU. This
article limits Member States’ initiatives for instruments based on provisions in chapters 4 and 5 TFEU,
relating to judicial cooperation in criminal matters and police cooperation. Only the Commission has
the right to initiate legislation touching on civil law and a Member States’ initiative cannot be based
on article 81 TFEU, which is contained in chapter 3, concerning judicial cooperation in civil matters.
Article 82(1) (a) TFEU is a legal basis to the EPO Directive, as the instrument lays down rules and
procedures for ensuring recognition throughout the Union of all forms of judgments and judicial
decisions. Article 82(1)(d) TFEU was chosen as legal basis, since the aim of the EPO Directive is to
facilitate and enhance the protection granted to victims of crime, or possible victims of crime, who
move between Member States of the EU. Cooperation between judicial or equivalent authorities of
the Member States carried out in respect of this aim falls within the scope of the aforementioned
provision.
D. Content
It should be emphasised that the EPO Directive is first of all a purely transnational instrument: its
application is limited to cases in which the victim decides to reside in or move to another Member
State than the Member State that imposed the protection measure.
As for the personal scope of application, the EPO Directive was in the first place created with the aim
of improving the protection of victims of gender violence because most protection orders concern
women who are victims of gender violence. Initially, it was thus intended to be a tool to protect
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49 Victims’ Rights in Criminal Matters Post Lisbon
victims of gender violence, but its scope of application eventually was widened to all other victims,
children or adults of either sex, against whom the offender may commit another offence.111
The EPO
Directive covers for example also harassment, stalking, forced marriage, honour killing, paedophilia,
human trafficking, organised crime and terrorism, as long as they have an identified perpetrator.
The EPO Directive is also a mutual recognition instrument. It is based on the following assumptions: a
victim is in danger, such that the Member State in which he resides has to adopt a protection
measure against the offender in the context of criminal proceedings. Whenever the victim decides to
move to another Member State, he continues to be in danger on the territory of the Member State
to which he wishes to move.
If a situation like that occurs, the EPO Directive wants to guarantee that application of the measures
imposed to protect the victim are no longer confined to the territory of the Member State that
adopted them, but are applicable to the victim wherever he goes within the EU. In other words, the
instrument ensures that the protection provided in one Member State is maintained and continued
in any other Member Sate to which the person moves. Victims should thus be free to exercise their
right to move and reside freely within the territory of the Member States without losing their
protection because of the execution of that right.
Article 2 defines the basic terms used throughout the instrument and specifies their use and
interpretation.
European protection order112
is defined as a decision, issued by a judicial or equivalent authority of a
Member State relating to a protection measure and aiming at facilitating the taking by another
Member State, where appropriate, of a protection measure under its own national law with a view to
continuing the protection of the protected person. The scope of application is thus not limited to
protection orders issued by judicial authorities because in some Member States, the issue of victim
protection is also addressed by authorities of a non-criminal law nature, for example civil or
administrative authorities.
In order to stay within the remit of article 82 TFEU, the scope of protection measure was limited to
decisions ordered in criminal matters. The protection measure is imposed in order to protect the
victim against a criminal act which may endanger his life, physical or psychological integrity, dignity,
personal liberty or sexual integrity.
The protected person is the natural person who is the object of the protection resulting from the
protection measure and the person causing danger is the natural person on whom the protection
measure is imposed.
Article 2 defines the issuing State as the Member State in which the protection measure has been
adopted that constitutes the basis for issuing a European protection order and the executing State as
the Member State to which the protected person moves and to which the original protection
measure can be extended.
The EPO Directive is not a harmonisation instrument. Its objective is not to ensure uniformity as
regards the protection measures that each national legislature can adopt or to create new EU-level
protection measures. Therefore, the protection measures adopted in the issuing State and the ones
111 Recital 9
112 “EPO Directive” refers to the instrument, “European protection order” refers to the decision on the basis of which a
Member State is obliged to guarantee a continued protection of the foreign victim.
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50 Victims’ Rights in Criminal Matters Post Lisbon
taken by the executing state, are to be understood as the protection measures as available under the
national law of the issuing/executing Member State.
For this reason, the executing State is not expected to impose the exact same protection measure
that was adopted in the issuing State. Instead, it has to adopt measures that, to the highest degree
possible, correspond to the protection measure adopted in the issuing State.
The Member States should designate the competent authorities, being the (judicial or equivalent)
authorities competent to issue and recognise a European protection order. Member States can also
appoint a central authority to assist its competent authorities.
Of course, a European protection order can only be issued when a protection measure has been
previously adopted in the issuing State. Article 5 limits the protection measures eligible for issuing a
European protection order to protection measures imposing specific prohibitions and restrictions.
Article 6 regulates the issuing of a European protection order. The competent authority in the issuing
State shall take two requirements into account when deciding upon the issuing of a European
protection order, namely the length of the period or periods that the protected person intends to
stay in the executing State and the seriousness of the need for protection. A European protection
order can only be ordered at the request of the protected person and after verifying that the
protection measure meets the specified requirements.
The protected person (or his guardian or representative, as appropriate) should be informed about
the possibility of requesting a European protection order in case that person decides to leave for
another Member State, as well as of the basic conditions for such a request. If the request to issue a
European protection order is rejected, the competent authority of the issuing State shall inform the
protected person of any applicable legal remedies that are available, under its national law, against
such a decision. The person causing danger shall be given the right to be heard and the right to
challenge the protection measure. The European protection order has to be in accordance with the
form set out in Annex I to the Directive and must contain the information prescribed in article 7.
Article 8 foresees rules on the transmission procedure and foresees for direct communication
between competent authorities.
Article 9 describes the series of actions that must be taken in the executing State, including
recognising the European protection order and taking a decision on adopting a protection measure
available under its national law in a similar case. The competent authority of the executing State shall
also inform the person causing danger and the protected person of any measure taken in the
executing State. Grounds for non-recognition of a European protection order are included in article
10. The issuing State and the protected person have to be informed about the executing State’s
refusal to recognise a European protection order.
If the European protection order is recognised, the executing State shall be competent to adopt and
to enforce measures according to its own national law. The executing State is also competent to take
(non-)criminal measures in case of breach of the measures taken by the executing state. The
competent authority of the issuing State should be notified of such breaches.
According to article 13, the issuing State will have jurisdiction to take all subsequent decisions
relating to the protection measure underlying a European protection order, notably the renewal,
review and withdrawal of the protection measure, and the initiation of new criminal proceedings
against the person causing the danger. The executing State can revoke the recognition of a European
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51 Victims’ Rights in Criminal Matters Post Lisbon
protection order: this may happen for example where there is evidence that the protected person
has definitively left the territory of the executing State.
Article 15 deals with the priority in recognition of a European protection order, providing that it shall
be recognised with the same priority which would be applicable in a similar national case. Point 13 of
the preamble talks about “treating the European protection order with appropriate speed”, but no
concrete timetable is mentioned. The urgency of the matter, the date foreseen for the arrival of the
protected person and the degree of risk are guidelines to decide on the prioritising.
The relationship with other instruments is covered by article 20. The EPO Directive does not affect
the application of other instruments. The article specifically mentions two framework decisions,
namely the FD on probation measures and the FD on supervision measures. Both shall not be
affected by the EPO Directive.
Section 2. Reviewing the EPO Directive
A. Implementation
In accordance with article 21 and 24, the EPO Directive entered into force on 10 January 2012 and
has to be transposed by 11 January 2015. As a consequence, it is currently impossible to review the
implementation of the instrument. Nonetheless, I would like to highlight some thoughts on the
instrument that might preview possible transposition problems in the future.
B. Critical remarks
I. Critical remarks concerning the EPO Directive
1. Need for an EPO Directive?
An objection that was already raised by a couple of Member States in the EPO-questionnaire
concerns the question whether there is an actual need in practice for the EPO Directive. No statistical
evidence was made available to prove the need for the instrument, as the data provided in the
Explanatory Memorandum were totally irrelevant. The Explanatory Memorandum refers to “over
100 000 women residing in the EU that are covered by protective measures of various kinds adopted
by Member States in response to gender-based violence.” But these numbers do not correspond
with the number of women who were granted a protection measure, who decided to move to
another Member State, and who also continue to be in danger after crossing the border of this
Member State and therefore need additional protection through the EPO Directive. Cases like that, in
which the offender continues to pose a threat even after the victim has moved from one EU Member
State to another are probably extremely rare. The number of cases in which the offender is able to
actually follow the victim and is willing to get into the trouble to do this, is definitely a lot lower than
the mentioned 100 000.113
In the few cross-border cases which do arise, the question should be asked whether the victim
cannot be protected in other (easier) ways than via the EPO Directive. He could for example contact
the competent local authorities and at least obtain preliminary advice and support. In addition, in
113 Suzan van der Aa and Jannemieke Ouwerkerk, ‘The European Protection Order: No time to Waste or a Waste of Time?’
[2011] European Journal of Crime, Criminal Law and Criminal Justice 271.
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52 Victims’ Rights in Criminal Matters Post Lisbon
some Member States, a new protection order can quickly be issued on the basis of national law. The
issuing of a protection order via the regular national procedure offers two advantages compared
with the EPO Directive.
First of all, the examination, qualification and comparison of a foreign protection measures can be
truly time consuming, especially since the new protection measures has to ensure a comparable level
of protection as the original protection measure did. As a consequence, it can take a considerable
amount of time before the executing State can actually transpose the foreign measure into one of its
own protection measures. A decision on the basis of national law might ultimately guarantee faster
and better protection than the European protection order does.
Secondly, the EPO Directive does not foresee the privilege of a fixed deadline within which the
European protection order should be procured. It shall on the contrary “be recognised with the same
priority which would be applicable in similar national cases”. This provision reduces the possible
advantageous effect that the European protection order could have had compared to the procedure
on the basis of the national law of the Member States.
In other words, cases in which a person continues to be in danger after he moved from one EU
Member State to another and is unable to get a protection measure in the Member State to which
they move (by way of a more efficient and rapid procedure than the European protection order), are
bound to be exceptional. The EPO Directive can not show this observation to be false, as it fails to
give any evidence of victims being refused protection in a Member State to which they move.
Altogether, it should be concluded that, in addition to the observation that the EPO Directive was not
actually needed in the first place, the instrument does not really seem to be an improvement
compared to regular national procedure.
2. The definition of “protection measure”
As outlined above, the EPO Directive does not expect Member States to amend their national law to
enable them to adopt protection measures in the context of criminal proceedings.114
The EPO
Directive presumes all EU Member States to have (criminal) protection measures available. At least,
this is what the Explanatory Memorandum of the EPO Directive suggests. It appears that all EU
Member States indeed have some form of criminal protection measure in place. However, the
question on how a protection measure should be defined is not a straightforward one. As there is no
universally accepted definition of “protection measure”, the definitions adopted within the Member
States are based on national legislation and only apply to the domestic situation. This might lead to
problems when transposing the protection measure to other jurisdiction for the purpose of applying
the European protection order.
The definition of “protection measure” in the EPO (article 2, 2 and article 5) is clearly too restrictive.
Firstly, several Member States include other prohibitions or obligations in their protection measures
than the ones enumerated in article 5.
Furthermore, a number of Member States allow both pre-trial as well as post-trial protection
measures. It is regrettable that no explicit reference was made to both provisional and formal
decisions in the definition. That way, both pre-trial and post-trial protection measures would have
fallen within the scope of the EPO Directive.
114 Recital 10.
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53 Victims’ Rights in Criminal Matters Post Lisbon
Next, the authorities competent to impose a protection order varies widely. This nuance is captured
by the EPO Directive though, as it mentions “a decision taken by judicial or equivalent authorities”.
It is clear that, although practically each Member State has some forms of criminal protection
measure available, they come in many shapes and sizes and the level of protection provided by them
varies accordingly. This observation is doomed to seriously hinder the transposition of certain
protection measures adopted in the executing State into another protection measure in the
executing State. It will, for example, be difficult for an executing State to recognise a criminal pre-trial
protection order and to replace it with a native equivalent, if that State has no criminal pre-trial
protection orders available in the national legal order. 115
In order to adequately compare the different protection measures and levels throughout the
Member States, objective and standardised criteria against which the different protection orders can
be measured will have to be developed. Moreover an assessment of the functioning of protection
order-legislation in practice would be necessary. These measures seems, if not totally unrealistic, at
least very complicated, extremely time consuming and costly.
As outlined above, the EPO Directive is a mutual recognition instrument and, as such, not a
harmonisation instrument. Be that as it may, the inclusion of a minimum level of harmonisation in
the EPO Directive would have been a benefit for the protection of victims across Europe.
3. Prioritising
When the EPO Directive was initiated, it was repeatedly emphasised that the instrument should
include “a dynamic and effective mechanism far removed from a bureaucratic procedure which
would stand in the way of an effective response being adopted as swiftly as possible in the executing
State.” The adoption of a classic mutual recognition procedure was assessed as “incompatible with
the immediate response required for a victim once again in danger in the executing State.”116
In the Initiative for the EPO Directive, article 12 provided that the European protection order had to
be recognised “without delay”. The draft report on the initiative for the EPO Directive proposed to
amend article 12 and to include a fixed deadline: “the European protection order shall be executed
within 20 days.”
In the EPO Directive’s final text, the 20-day deadline was not adopted. Article 15 now instructs that
“a European protection order shall be recognised with the same priority which would be applicable
in a similar national case, taking into consideration any specific circumstances of the case, including
the urgency of the matter, the date foreseen for the arrival of the protected person on the territory
of the executing State and, where possible, the degree of risk for the protected person.”
It is to be regretted that the fixed time limit of 20 days was not obtained in the final version of the
EPO Directive. Without questioning the feasibility of the 20-day deadline, this would have been a real
improvement to the position of the cross border victim, since going through the regular national
procedures for obtaining a protection measure would take most probably longer than 20 days.
The current article 15 inevitably gives rise to the question whether the EPO Directive actually has an
added value compared to simply requesting a national protection order. Since both procedures have
115 Suzan van der Aa, ‘Protection Orders in the European Member States: Where Do We Stand and Where Do We Go from
Here?’ [2011] European Journal of Criminal Policy and Research 3-4. 116
Explanatory Memorandum 13.
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
54 Victims’ Rights in Criminal Matters Post Lisbon
to be handled with the same priority, the application of the EPO Directive is not really advantageous
for the victims.117
4. Double criminality
Article 10, 1 (c) foresees a possibility for the competent authority of the executing State to refuse to
recognise a European protection order if “the protection measure relates to an act that does not
constitute a criminal offence under the law of the executing State”. In other words, the EPO Directive
presumes the principle of double criminality, meaning that mutual recognition will only occur if the
behaviour underlying the protection measure constitutes a crime in both the issuing State and the
executing State.
Due to this, the radius of action of the EPO Directive is reduced as certain behaviour falls under its
radar. Stalking for example, is criminalised in only twelve Member States and mutual recognition of
protection measures that were imposed in cases of stalking will therefore only be recognised within
these twelve Member States. In the other fifteen Member States, the victim will encounter
difficulties in having his protection measure recognised.118
5. Financial implications
The initiators of the EPO Directive were pretty straight forward on the financial implications of the
instrument, ensuring that “the proposal will not impose any major additional expenditure on
Member States' budgets or, on the European Union budget. In the long term, the costs which it may
involve, relating mainly to the translation of the European Protection Order, will in many instances
represent savings by preventing the commission of new offences against the victim, that being the
primary objective of this proposal.”
This phrasing seems a bit impetuous as in practice the budgetary implications of applying the EPO
Directive should not be underestimated. The potential costs which the instrument brings about
include the costs of notifying any measure taken on the basis of the European protection order to the
person causing danger, the protected person and the competent authority of the issuing state
(administrative costs) and to keep them informed in a language they understand (translation costs)
and the costs for opening up legal remedies for the protected person against the refusal to recognise
the European protection order.
Another significant cost results from the execution of the European protection order. To start with,
the executing State will have to invest in procedures that facilitate the qualification of foreign
protection measures and allow a comparison of them with the protection measures available in the
executing State. Next, the execution of the European protection order includes the costs of measures
necessary for enforcement, such as the use of technical devices, or even imprisonment, if the order
that needs to be enforced would prescribe such measures. It would also include the costs for
imposing sanctions in case of breach.
According to article 18, the costs resulting from the application of the EPO Directive shall be borne by
the executing State. The executing State most probably will not be eager to invest in all these costs
only to take over the burden of another Member State without any financial contribution of that
State or the possibility to be compensated for the expenses. It might have been more realistic to
117 Suzan van der Aa and Jannemieke Ouwerkerk, ‘The European Protection Order: No time to Waste or a Waste of Time?’
[2011] European Journal of Crime, Criminal Law and Criminal Justice 282 - 283. 118 ibid 278 -279.
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55 Victims’ Rights in Criminal Matters Post Lisbon
include a division of costs or a reimbursement mechanism with the issuing State for the most money-
consuming activities. To put the burden of financing all costs on the executing State might, in
practice, curtail the effective application of European protection orders. It would be no surprise if the
executing State deliberately fails to act in order to prevent the recognition of a European protection
order. The potential tendency toward non compliance will even be intensified by the fact that the
executing State has to execute a protection measure that was not even issued in its own
jurisdiction.119
6. Relationship with other instruments
Another objection that was also highlighted in the EPO-questionnaire, concerns the overlap of the
matters dealt with in the FD on supervision measures and the FD on probation measures and the
EPO Directive. The FD on supervision measures addresses the situation in which a person becomes
the suspect of a crime outside his Member State of residence. This instrument allows Member States
to recognise non-custodial pre-trial measures that were taken anywhere in the EU. Post-trial orders
are regulated by the FD on probation measures. This instrument allows for a person sentenced to a
probation measure or given an alternative sanction in a Member State other than his own, to be sent
back to the State where he normally resides. The latter will recognise the judgment and will take on
the supervision of the sentence.
The protection of the victim is the most predominant in cases were both the victim and offender
move to the same Member State. In this situation, the offender poses a real threat to the victim and
the EPO Directive may provide a remedy. However, the FD on supervision measures in combination
with the FD on probation more or less covers all possible pre- and post-trial criminal protection
measures. Therefore, the number of cases in which the EPO would be absolutely necessary to
protect the victim, is substantially reduced by the fact that existing protection measures can already
be recognized on the basis of other EU instruments.
7. Are protection measures the best instrument to effectively protect victims?
Apart from the concerns regarding the definition of a “protection measure”, the effectiveness of a
protection measure in itself can be contested both during the criminal procedure as well as after the
measure has been imposed. 120
During the criminal procedure
The absence of protection measures during some phases of the criminal procedure can seriously limit
the level of protection. Certain Member States merely recognise pre-trial protection measures that
are only valid until the final judgement. Opposed to that the criminal justice systems in other States
does not provide protection before there is a final judgment that resulted in the conviction of the
accused. Some Member States thus show considerable gaps in victim protection legislation, which
inevitably will influence the level of protection.
An observation that can also seriously hamper adequate protection of victims is the restriction of
criminal protection measures to a limited range of victims. In some Member States the measures are
exclusively available to victims of domestic violence and victims of human trafficking, but not to
victims of other offences.
119 ibid 281 - 282. 120
M Malsch, De Wet Belaging: Totstandkoming en toepassing (Nijmegen Ars Aequi Libri 2004) 30.
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56 Victims’ Rights in Criminal Matters Post Lisbon
As mentioned before, victims of stalking, are subject to an additional obstacle to obtaining a criminal
restraining order. Criminal restraining orders can only be imposed when suspicions of a crime have
arisen. In 15 Member States, stalking is not criminalised (yet). In those jurisdiction, victims of stalking
are thus practically left empty-handed, as criminal restraining orders will not be available to them.
After adoption of the protection measure
Once the protection measure has been adopted, its effectiveness depends mainly on the sentences
available upon violation and the adequate follow-up by law enforcement officers. Without these two
guarantees at hand, a protection measure is nothing more than a piece of paper. The limitation in
time of some protection measures also do harm to its effectiveness. 121
C. Conclusion
The research concerning the EPO Directive has first of al shown that the instrument will only be
useful to a very limited number of victims and to a quite limited number of situations. The inclusion
of the double criminality principle restricts the field of application of the EPO Directive even more. In
cases the EPO Directive is applicable, it was shown that the granting of protection measures is not
always the most effective method to protect victims.
Mrs. Jiménez Becerril, one of the MEPs who initiated the EPO Directive admitted herself that “the
EPO Directive is not a perfect instrument and it has taken two years to be approved”122
. The fact that
it took so long before the instrument was eventually finalised, illustrates the difficulties that arose
when adopting the instrument and influenced its effectiveness. The differences in Member States’
legal system was the main obstacle to save during the negotiations of the instrument. The final
version of the instrument bears all the signs of a political compromise.
The instrument contains a lot of vagueness concerning the interpretation of “protection measure”.
As outlined above, a common minimum level of harmonisation concerning the concept of protection
measures would have served victims of crime. Moreover, essential elements, such as the speed with
which the European protection order has to be recognised and the budgetary implications of
granting a European protection order, leave much to be desired.
The EPO Directive undeniably missed some chances to provide a considerable amelioration for crime
victims who want to move and reside freely on the entire EU territory. For this reason, it is unlikely
that the EPO Directive’s main objective, eliminating existing borders from the point of view of victim
protection, will be achieved.
121 Suzan van der Aa, ‘Protection Orders in the European Member States: Where Do We Stand and Where Do We Go from
Here?’ [2011] European Journal of Criminal Policy and Research 5. 122
< http://pr.euractiv.com/press-release/european-protection-order-increased-security-victims-crimes-throughout-eu-
teresa-jimen >
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
57 Victims’ Rights in Criminal Matters Post Lisbon
Chapter 3. Directive establishing minimum standards on the rights, support and protection of victims of crime
The most recent victims’ rights instrument that will be discussed is the Minimum Standards Directive.
At the time of writing, the Minimum Standards Directive has not been adopted yet. The indicative
plenary sitting including the first reading is expected by July 2012.123
For this reason, the discussion of
the instrument will be limited to the Proposal for the Minimum Standards Directive124
, presented on
18 May 2011 as a part of the Victims’ Rights Package.
The discussion of this instrument will cover more or less the same elements as the discussions of the
previous instruments. Section 1 offers a descriptive part, while section 2 aims to review the
Minimum Standards Directive. The Descriptive part consists of the background and legal context, the
directive as an instrument, the legal basis and the content. In a second section, some critical remarks
will be presented in order to review the instrument.
Section 1. Describing the Minimum Standards Directi ve
A. Background & legal context
I. Background
In part 1 of the paper, the 2001 Framework Decision was subject of an extensive study. This study
showed that the objectives of the Framework Decision have not been fully realised and that, over the
last decade, little improvements have been achieved concerning the rights of victims in criminal
proceedings.
The need to guarantee these rights was nevertheless still recognised as a basic condition for mutual
recognition of judgments and judicial decisions. Without mutual recognition, judicial cooperation in
criminal matters in the EU becomes impossible. In order to effectively ensure the application of the
principle of Mutual recognition, a spirit of confidence should be established, whereby not only
judicial authorities but all those involved in the criminal justice process and others who have a
legitimate interest in it, can trust in the adequacy of the rules of each Member State and can trust
that those rules are correctly applied. Victims are included in this group of interested parties. When
victims are not subject to the same minimum standards throughout the EU, the essential trust can be
reduced due to concerns over the treatment of victims or due to differences in procedural rules.
It was recognised that common minimum rules should lead to increased confidence in the criminal
justice systems of all Member States, which in turn should lead to more efficient judicial cooperation
in a climate of mutual trust as well as to the promotion of a fundamental rights culture in the
European Union. The common minimum rules should also contribute to reducing obstacles to free
movement of citizens since such rules should apply to all victims of crime.
123 For an overview of the current status of the proposal, see:
<http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2011/0129(COD)&l=en#basicInformation>
(last assessed on 5 May 2012). 124 “The Minimum Standards Directive” refers to the Proposal for a Directive Establishing Minimum Standards on the
Rights, Support and Protection of Victims of Crime.
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58 Victims’ Rights in Criminal Matters Post Lisbon
II. Legal context
The legal context in which the Minimum Standards Directive was developed is more or less the same
as that of the Victims’ Rights Package, as the Minimum Standards Directive is part of the Package. For
this reason, the legal context outlined before with regard to the Victims’ Rights Package will not be
repeated in this chapter.
With regard to the Minimum Standards Directive, the Impact Assessment concluded that there was a
need to replace the 2001 Framework Decision with a new instrument containing concrete obligations
on the rights of victims. The legislative part should be followed with practical measures to facilitate
implementation.
B. Directive: the instrument
The Minimum Standards Directive replaces the 2001 Framework Decision. With the adoption of the
Treaty of Lisbon, the EU pillar structure has been abolished and framework decisions were no longer
foreseen as a legal instruments. They had to be updated and transformed into directives. Therefore,
the instrument chosen is a directive, in accordance with article 288 TFEU. As mentioned in the
context of the EPO Directive, directives have not been modified with the adoption of the Treaty of
Lisbon and thus still require Member States to achieve particular results without dictating the means
of achieving that result.
C. Legal basis
The legal basis for the Minimum Standards Directive is derived from article 82(2)(c) TFEU.
The power to act and, where necessary, propose EU legislation in the area of criminal law is
conferred by article 82 TFEU. Article 82(2)(c) TFEU provides a specific legal basis for criminal matters
and establishes that “to the extent necessary to facilitate mutual recognition and police and judicial
co-operation in criminal matters having a cross border dimension, minimum rules may be established
concerning the rights of victims of crime”.
D. Content
The Minimum Standards Directive is intended to replace the 2001 Framework Decision. The
instrument lays down minimum rules on the rights, support and protection of the victims of crime. It
also covers very briefly the matter of compensation, but as mentioned before, the Commission
indicated that compensation will be subject to further study and action and that the Minimum
Standards Directive is only a first step. As for the legal elements, some provisions of the 2001
Framework Decision were maintained in their original form in the Directive on Minimum Standards
or have been amended only to the extent necessary.
The general objective of the Minimum Standards Directive, as formulated in article 1, is “to ensure
that all victims of crime receive appropriate protection and support, are able to participate in
criminal proceedings and are recognised and treated in a respectful, sensitive and professional
manner, without discrimination of any kind, in all contacts with any public authority, victim support
or restorative justice service”.
Article 2 contains definitions. As the purpose of the Directive is to ensure that all victims of crime
receive adequate protection and support, the field of application is extended. Point 9 of the Recital
emphasises that “Family members of victims are also harmed as a result of the crime, in particular
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59 Victims’ Rights in Criminal Matters Post Lisbon
the family of a deceased victim, who have a legitimate interest in criminal proceedings. Such indirect
victims should therefore also benefit from protection under this Directive.”
This wording creates the assumption that the Minimum Standards Directive will support not only
family of a deceased victims, but also family of surviving victims. This is not the case though, as only
family members of a person whose death has been caused by a criminal offence enjoy all rights
provided for by the Minimum Standards Directive. They have specific and legitimate interests in the
proceedings beyond those of family members of surviving victims and are often recognised as
representatives of the victim.
The provision on information rights and right to understand and to be understood are included in
articles 3 to 6. Article 3 foresees more or less the same rights as the Framework Decision did,
although it is added that the victim should be informed of any procedures for complaints if their
rights were not respected and should be given contact details for communications about their case.
In addition, the victim should be given contact details for communication about their case. Article 4
describes the right to receive information about the case a little bit more detailed compared to the
corresponding provisions in the Framework Decision. For example, next to just informing the victim
about the outcome of their complaint and the court’s sentence, the victim now has the right to be
informed of any decision, including reasons for that decision. As for the right to understand and to be
understood, which includes the right to interpretation and translation, this is no longer limited to
victims having the status of witnesses or parties to the proceedings. The content of these rights are
described far more elaborated than in the Framework Decision, in which only one short article was
dedicated to communication safeguards. It is not up to the victim to request for translation or
interpretation, but the Member States themselves have the obligation to check whether the victim
understand and speaks the language of the criminal proceedings. The Minimum Standards Directive
also emphasises that the communication safeguards should be free of charge.
In accordance with article 7, Member States have to ensure that victims have access to support
services from the earliest possible moment after the commission of a crime. The article is also pretty
detailed as to the minimum rights that should be ensured, referring to the need to provide emotional
support, advice concerning financial end practical issues, and information on where to find other
more specialist support.
Chapter 3 of the Minimum Standards Directive concerns participation in criminal proceedings and is
comparable with what was foreseen in the Framework Decision. It includes the right of victims to
obtain a written acknowledgement of any complaint they might make, the right to be heard and to
supply evidence, to demand review of any decision not to prosecute, to legal aid, to reimbursement
of expenses, to the return of property and to a decision on compensation from the offender and the
rights of victims residing in another Member State.
The provision on mediation is a lot more straight-forward than the provision on penal mediation in
the Framework Decision. In stead of mentioning that mediation should be “promoted in criminal
cases for offences which are considered appropriate for this sort of measure”, the Directive now
obliges the Member States to establish concrete standards to make sure the victim is not intimidated
or further victimised because of the mediation procedure.
The position of vulnerable victims is regulated in chapter 4. The Framework Decision was extremely
vague on this aspect and only mentioned that “the Member States shall ensure that victims who are
particularly vulnerable can benefit from specific treatment best suited to their circumstances”.
Luckily, the Minimum Standards Directive is much more unambiguous on this matter and first of all
clearly identifies the different categories of vulnerable victims. The categories are determined by the
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60 Victims’ Rights in Criminal Matters Post Lisbon
personal characteristics of the victim and by the nature or type of crime a victim has suffered.
Additionally, all other victims receive an individual assessment to determine whether they are
vulnerable, because of personal characteristics, the circumstances, type or nature of the crime, the
severity of the crime and the degree of apparent harm suffered by the victim.
Article 21 guarantees the protection of vulnerable victims both during criminal investigations and
during the trials itself and is pretty specific on this matter. Article 22 foresees additional measures for
the specific needs of child victims, such as the use of video recorded interviews as evidence in
criminal court proceedings and the appointment of a special representative for the victim in certain
cases.
As for the protection of victims, article 17 and 19 want to ensure the physical and emotional
protection of both victims and their family members. Contact between the victim and accused or
suspected persons should be avoided, not only within court premises (article 8 Framework Decision),
but in any venue where victims may have personal contact with public authorities and in particular
venues where criminal proceedings are conducted. The victim is also given specific protection during
questioning in criminal investigations and the privacy and photographic image of the victim must be
safeguarded.
Chapter 6 contains some general provisions. Article 24 obliges the Member States to ensure that
professionals receive general and specialist training. The Minimum Standards Directive is rather
specific about who should be understood as “practitioner”, mentioning police, prosecutors and court
staff, members of the judiciary, those providing victim support and restorative justice services,
whereas the Framework Decision only made specific reference to police officers and legal
practitioners. The Minimum Standards Directive also specifies the minimum that should be included
in training, while the Framework Decision was completely mute on this matter. Finally, the Minimum
Standards Directive emphasises the need for the Member States to cooperate in order to facilitate
more effective protection of victims’ rights and interests. Working together would ensure a
coordinated response to victims and it would minimise the negative impacts of crime.
Section 2. Reviewing the Minimum Standards Directiv e
A. Implementation
The Minimum Standards Directive has not been adopted yet, let alone implemented in the Member
States. It is therefore impossible to discuss the implementation and the added value of the
instrument. On the other hand, the paper can consider potential implementation problems by
reviewing the instrument in itself. It should be emphasised that the version of the Minimum
Standards Directive that will be the subject of review in the following points is not the final version of
the instrument. The final version of the Minimum Standards Directive is likely to show several
differences compared to the version subject to review right now. Some of the remarks mentioned,
might therefore not apply anymore once the Minimum Standards Directive has been adopted.
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61 Victims’ Rights in Criminal Matters Post Lisbon
B. Critical remarks
I. Critical remarks concerning the Minimum Standards Directive
1. Foreseen timetable
Article 26 of the Minimum Standards Directive foresees the implementation deadline within two
years after the date of adoption of the Directive. Compared to the extremely tight deadline that was
prescribed in the Framework Decision, the Minimum Standards Directive seems to adopt a more
reasonable approach.
The Minimum Standards Directive is clearly more detailed and concrete than the Framework
Decision with regard to the measures that should be taken for implementation. For example when it
comes to the protection of vulnerable victims, training of practitioners, interpretation and
translation, the Minimum Standards Directive expects far-reaching measures, not only on legislative
level, but also on practical level. As a consequence, the foreseen implementation deadline of two
years should be maintained as an absolute minimum.
2. Vague provision
It cannot be denied that the Minimum Standards Directive took a major step forwards when it comes
to formulation. Most of the provision are clear-cut and obvious and don not leave too much room for
interpretation. This being said, a couple of provisions are still far from perfect and need adjustment.
The position of cross-border victims
Article 16, on the protection of cross-border victims, is a literal copy of the corresponding provision
in the Framework Decision. This is to be regretted since that provision used very vague wordings. It
did not prescribe concrete measures, but talked about “taking appropriate measures to minimise the
difficulties faced where the victim is a resident of a Member State other than that where the offence
occurs”.
The different implementation reports of the Framework Decision have shown that the support
available to cross-border victims was evaluated negative, especially on the issue of information to
victims. The majority of the EU Member States appeared not to offer victims the opportunity to
report crimes committed abroad once they return home. Most of the Member States solely offered
victims this opportunity in cases in which they themselves have jurisdiction.
There was an explicit call for improvements regarding the position of cross-border victims and it is
therefore remarkable that this provision stayed untouched in the Minimum Standards Directive.
Cross-border victims could definitely benefit from the introduction of fast track procedures for those
who stay in the Member State of victimisation in order to better follow the procedure and it would
have been helpful to foresee training in multiculturalism for personnel getting in touch with the
victim. Let us hope the necessary adjustments are made by the time the Minimum Standards
Directive is adopted.
Right to compensation from the offender in the course of criminal proceedings
Article 15 was also left more or less the same compared to the Framework Decision. Disappointing,
since the article now contains the obligation to ensure that victims are entitled to obtain a decision
on compensation by the offender, within a reasonable time. Member States should take measures to
encourage the offender to provide adequate compensation to victims. Even though the Minimum
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62 Victims’ Rights in Criminal Matters Post Lisbon
Standards Directive is only a “first step” towards a more elaborated instrument on compensation,
this right should have been guaranteed is clear-cut terms instead of copying the provision from the
Framework Decision.
Cooperation and coordination of services
Article 25 is as well basically a copy of the corresponding provision in the Framework Decision. It
lacks concrete obligations and consequently gives rise to a wide margin of interpretation for the
Member States. It is once again too bad that this provision stayed untouched, because an effective
cooperation of national victim support services, by way of exchanging best practices and experience,
can be of major importance for an easy and fast recovery of the victim.
Right to receive information from first contact with a competent authority
This provision requires Member States to ensure that victims are provided with information, without
unnecessary delay. It is completely unclear what period of time corresponds with “without
unnecessary delay” and every Member State probably has his own interpretation on that. The open
formulation of this right will probably not result in concrete action by the Member State.
3. The definition of “victim”
According to article 2(a)(ii), the family members of a person whose death has been caused by a
criminal offence are the only family members considered as victims. It is unclear why this nuance was
introduced: family members of surviving victims can have equal “specific and legitimate interests in
the proceedings” as family members of deceased victims. Surviving victims can be so badly injured
that they need a very high level of support in exercising their legal capacity before or after the crime.
One could refer to cases where the victim is left paralysed or mentally handicapped by a crime. Same
goes for family members of children who became victim of sexual violence and woman who became
victim of domestic violence.
In such cases, the financial, psychological and practical burden for the family members should not be
underestimated. Even though the victim did not die, those family members are in serious need for
the support and protection provided in the Minimum Standards Directive. Moreover, in such cases,
family members are often recognised as representatives of the victim.
Without suggesting that the entire Minimum Standards Directive should be applicable to each and
every family member of all victims, it is recommended that a broader approach is adopted in defining
the victims of crime. This could be done by specifying the rights that are exclusively available to
family members of victims whose death has been caused by the crime, but making at least some of
the remaining provisions applicable to family members of surviving victims. They could definitely
benefit from some of the rights provided in the Minimum Standards Directive, such as access to
victim support services, right to protection (of their privacy), ...
4. Vulnerable victims
It can not be denied that the provisions on vulnerable victims has been improved compared to the
poor provision in the Framework Decision. When it comes to defining vulnerable victims, various
references were made in the preamble. Next to the victims mentioned in article 18, point 13 of the
Recital refers to victims of gender, race hate or other bias crimes, victims of terrorism. Point 17 of the
Recital adds victims of child abuse, sexual exploitation and child pornography and point 18 of the
Recital mentions victims of organised crime.
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63 Victims’ Rights in Criminal Matters Post Lisbon
In order to ensure consistency, it might be a good idea to harmonise these lists and to simply include
them in article 18. This way, the provision would be as inclusive as possible. Finally, it should be
suggested suggest to widen the scope of vulnerable victims even more to for example sexual
minorities, migrants and refugees,… These categories could also benefit from a more individualised
approach.
4. Infringement procedures
As mentioned before, it was added in article 3 that the victim should be provided with information
on any procedures for complaints if their rights were not respected. Unlike the Framework Decision,
the Minimum Standards Directive does foresees the possibility to tackle possible infringements of
the rights provided in it, and this is definitely a positive evolution.
5. Hidden agenda?
While evaluating the Framework Decision, it was pointed out that the instruments mainly seemed to
focus on law enforcement rather than looking out for the protection and support of the victim. The
title of the Framework Decision, which mentioned “standing in criminal proceedings”, already
suggested the intention of regulating the position of the victim only insofar as this could be helpful
for the procedure.
The Minimum Standards Directive hints a change of perspective, focusing on “the rights, support and
protection of victims” as such. This perspective is also reflected in the instrument itself. The
possibility for the victim to participate in the proceedings has been boosted. The same can be said
about the support and protection of victims: the right to access to victim support services has been
widened, the training of practitioners is emphasised and expanded and a lot of attention is given to
particularly vulnerable victims. It seems fair to conclude that the Minimum Standards Directive
without doubt putted more effort in safeguarding the rights, support and protection of the victim.
We should keep in mind though, that the current version is a Commission proposal. During the
adoption procedure, the Council will still have a say as to the content of the Minimum Standards
Directive. Given the sometimes far-reaching measures that will be needed from the Member States,
it is likely that the final text will be a compromise between the opposing approaches of both
institutions.
C. Conclusion
The Minimum Standards Directive should definitely be seen as an improvement for the protection of
victims’ rights. A lot of essential rights are guaranteed in a much more comprehensive and detailed
manner compared to the 2001 Framework Decision. The instrument firstly and mostly means to
ensure the protection and satisfaction of their needs and not merely their cooperation with the
justice systems. This in itself is without doubt a very positive evolution.
This being said, it should also be remarked that the open formulation typical for the Framework
Decision, is found back in several provisions of the Minimum Standards Directive. After the 2001
Framework Decision and the 2004 Compensation Directive, the Commission could see with its own
eyes that the use of vague wording is extremely harmful for an effective implementation and does
not bring any good to victims’ rights. Therefore, the least to say is that it is remarkable, if not totally
unacceptable, for the Commission to maintain the exact same vague language as used in the
Framework Decision in some of the provisions of the Minimum Standards Directive. Especially since
some of these maintained vague provisions concern essential elements of victims’ rights protection.
The concern with the position of cross-border victims for example, is the main driver for European
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64 Victims’ Rights in Criminal Matters Post Lisbon
competence in the protection of victims of crime and it is inexplicable why the Commission decided
to maintain the Framework Decision’s provision on this matter, that showed to be insufficient to
improve the problematic position of cross-border victims.
The Victims’ Rights Package was announced as containing promising instruments that would finally
really respond to the needs of victims, putting victims at the heart of the criminal justice agenda of
the EU. Bearing this promise in mind, the Minimum Standards Directive still anticlimaxes on different
levels. Hopefully, the final version of the Minimum Standards Directive will have what it takes to
actually ensure proper and effective action on the rights of victims.
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65 Victims’ Rights in Criminal Matters Post Lisbon
PART 4. GENERAL CONCLUSION
OBSERVATIONS
Over the last decades, the playing field for offenders has expended from the local or national to the
global level, leading to new forms and manifestations of crimes. The traditional national systems of
criminal prosecution and security policies showed to be unsatisfactory to cope with these new
dimensions of crime. Especially the protection of cross-border victims, persons falling victim in
another Member State than their State of residence, seemed problematic. As the protection offered
by the national legislations of the Members States was limited to the territory of the States, the
cross-border victim could not get access to justice once they returned home. He also had difficulties
getting access to justice in the State where the crime was committed, because of language barriers
and lack of understanding of the host State’s legal system. As a consequence access to victims’ rights
was often illusory.
In addition, the national legislation schemes displayed large differences between them. Some
Member States offered more extensive protection to victims’ needs than others. This lack of
convergence in the Member States hindered the mutual recognition of judicial decisions, necessary
to create the area of freedom, security and justice. In order to guarantee this mutual recognition,
similar protection of victims throughout the entire EU was needed.
The problems concerning cross-border victims and concerning the inconsistent protection of victims
within Europe asked for action at EU level. Additional measures had to be taken to fulfil the needs of
all victims and to ensure similar levels of protection throughout the EU.
The EU intervention in the field of victims’ rights started with the introduction of the Treaty of
Amsterdam, even though this Treaty did not contain a clear legal basis for the EU to act in the field of
victims’ rights. This led to the adoption of two instruments in the pre Lisbon area: the 2001
Framework Decision, concerning procedural victims’ rights in general and the 2004 Compensation
Directive, dealing specifically with the right to compensation for victims all across Europe. The in-
depth analysis of both instruments has shown that they eventually did not live up to the
expectations. The paper has presented different critical remarks concerning the elements underlying
the disappointing results of both instruments. It was concluded that the situation of victims in the
criminal proceedings was not improved, nor was the right to compensation for the injuries the victim
suffers because of the crime safeguarded. Nevertheless, the needs for victims to receive adequate
protection within the entire EU, was still a pending issue.
This concern led to the adoption of new measures aimed to once again guarantee the protection of
victims’ needs and rights. The Treaty of Lisbon gave the initial impetus to the new area of victims’
rights. This was complemented with the Victims’ Rights Package, setting in motion the adoption of
new legal instruments concerning victims’ rights.
In the second main part of the paper, consideration was given to the protection of victims’ rights in
the EU post Lisbon. Firstly, the EPO-Directive, adopted in 2011, was analysed. Next, the Minimum
Standards Directive was considered. Since both instruments have not yet been implemented, they
were subject to a more limited analysis compared to the pre Lisbon instruments. After reviewing
these instruments, a number of critical remarks were presented. It was found that both instruments
showed several weaknesses in the way they were drafted. These flaws will inevitably influence the
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66 Victims’ Rights in Criminal Matters Post Lisbon
level of implementation in the Member States. For this reason, it is uncertain whether the new
instruments will serve as a true added value to the protection of victims’ rights within the EU.
ANSWERING THE RESEARCH QUESTION
The research question of this LL.M.-paper concerned the adequacy of the protection of victims’ rights
in criminal matters within the EU. In order to formulate an answer to this question, the paper
discussed and evaluated the different relevant legal instruments regulating victims’ rights in the EU.
This research allowed to formulate an answer to the research question.
The protection of victims’ rights in criminal matter within the EU is found inadequate. The available
instruments pre Lisbon could not convince victims and interested parties of their added value and
the protection of victims’ rights pre Lisbon should without doubt be considered inadequate. The
instruments introduced in the post Lisbon area do not bode well for the future either. When it comes
to the EPO Directive, it was shown that the instrument most likely will have a very limited added
value. The Minimum Standards Directive is more promising as to the position of crime victims. Still, it
contains several vague provisions regarding key elements of victims’ rights protection. Although it is
impossible to predict how the implementation of the new instruments will proceed, the perspectives
for the future of victims’ rights are rather negative. Once implemented, the new instruments will
probably still not provide the added value needed to ensure adequate protection of victims’ rights.
RECOMMENDATIONS
After discussing, evaluating and reviewing the instruments that have been in adopted within the EU
over the last decades, the paper will conclude with some recommendations. The recommendations
relate to tree levels of the victims’ rights policy within the EU. All tree levels should be taken into
account in order to create adequate instruments to protect victims’ rights.
Preparatory work
Ensuring adequate protection of victims’ rights starts with the preparation of the legal instruments.
Before drafting the instrument, it is important that the EU-legislator knows what the instrument
should contain. In order to gain knowledge an awareness on how to effectively improve the current
situation, various and uncoordinated evaluation studies should be avoided. Consultation of all the
interested parties is crucial.
It should be pointed out that, next to the general instruments that were researched in this paper,
there are also more specific instruments regulating victims’ rights available. The most important
being instruments regarding the position of victims of human trafficking125
, sexual abuse126
,
terrorism127
,…
125 Council Directive 2011/36/EU on preventing and combating trafficking in human beings, and protecting victims [2011] OJ
L 101/1. 126
Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual
abuse and sexual exploitation of children and child pornography [2011] OJ L 335/1. 127
Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on
combating terrorism [2008] OJ L 330/21.
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These instruments also impose obligations on the Member States and ensure the protection of
certain rights. Before drafting a new instrument, the EU-legislator should make it his duty to take a
step back and to look at the bigger picture. He should call into question every aspect of the new
instrument and compare it with what is already out there. By seeing every instrument in the context
of all instruments regulating comparable issues, overlaps are avoided and the instrument will be
much more effective.
Drafting the instrument
With regard to the drafting of instruments, it is in the first place important that the drafters take into
account the observations made while preparing the instruments. The identified needs, shortcomings,
sore points and difficult areas in the current system, should be accentuated in the new instruments
in order to correct them. The instruments that have been evaluated in this paper demonstrated that
some concerns uttered during the preparatory work, were not reflected in the drafting of the
instrument. This off course does no good to the added value of the instrument.
Next, the instruments that were evaluated in this paper have shown that it is absolutely useless to
include vague and general provisions, that do not prescribe concrete obligations, in victims’ rights
instruments. Especially when it comes to key elements of the instrument, it is highly recommended
to adopt clear-cut terms concerning their interpretation. Ambiguous drafting of instruments leads to
Member States taking no action to comply with the instrument or taking action that is not suitable to
really improve the position of the victims in practice.
This leads to the concern regarding the hidden agenda of the drafter of the instrument. It is
absolutely imperative that his main concern is the improvement of the position of victims in criminal
proceedings and not the preserving of his sovereignty in law making. The paper illustrated that
Member States are still very reluctant to let go of their own national legislation in order to welcome
new EU-legislation in the field of victims’ rights and probably in the field of criminal law in general.
Implementing the instrument
When it comes to implementing the instruments, two elements should be kept in mind: the methods
used to assess the implementation level and the guidance and assistance of the Member States
during the implementation procedure and after.
First of all, the notion “measures to implement a legal instrument” should not be restricted to
measures of formal legislation. A successful codification of victims’ rights can only be obtained by
way of a complicated process of multi-level implementation. The transposal of the instrument into
national legislation can not be the only criterion to assess the implementation level. In addition to
the consultation of Member States, NGOs, the judiciary, prosecutors, probation officers, service
providers, police and law enforcement officials, and of course victims and their families, should play
an important role in evaluating the implementation of the instrument. Only their combined and
concerted efforts can safeguard a satisfactory implementation level. That way, one can form a
complete picture of the added value of the instrument for the protection of victims’ rights.
Moreover, the importance of “soft skills”, such as training and awareness, should be underlined.
Those implementing the instrument should pay attention to the effective delivery of assistance
programmes and of countering the effects of secondary victimisation. The need for extra-judicial
measures to complement those provided within the context of the justice system can not be
underestimated.
The Member States’ implementation reports containing the measures taken to comply with the
instrument, should also be drafted by independent parties and not by the persons who are
Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012
68 Victims’ Rights in Criminal Matters Post Lisbon
responsible for implementation. In addition, the Commission should have access to all information
available regarding the implementation of an instrument and should not be restricted to the content
of Member States’ reports.
Secondly, it could be considered to set up an EU agency to coordinate and monitor the
implementation of the instrument and the requirements laid down in the instrument. Such an
agency could smooth the implementation process by way of managing the transposal processes in
the different Member States without interfering with the Member States’ rights to choose the forms
and methods for implementation. This way, a more consistent implementation of the instruments
can be established, guaranteeing an equal level of protection for all victims throughout the EU.
Moreover, such an agency could truly bring to life the obligations contained in the instruments. It
can be a forum for dialogue, a venue for the Member States to turn to when they are doubtful about
the interpretation of certain obligations, if they want to compare the execution of obligations in
other Member States, and so on. It can also suggest the Member States how best to execute
obligations, based on best practices.
In particular, the agency could be important for the position of cross-border victims. It could arrange
meetings and lectures to improve coordination of cross-border operation and procedures between
all the relevant bodies involved in supporting victims.
The agency could also be a mouth piece for remarks, suggestions and comments from the Member
States towards the Commission. Moreover, it can see the overall picture of different legal
instruments regulating victims’ rights. That way, overlaps or gaps can easier be identified.
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