The EU directive for victims of crime: more than meets the eye

The EU directive for victims of crime: more than meets the eye

Antony Pemberton

20 april 2023 2

Outline

• The EU and victims: before the Framework Decision

• The Framework Decision for victims of crime of 2001 and its results

• The lessons from the experience with the Framework Decision

• The proposed EU Directive: contents and challenges

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EU and criminal justice: strange bedfellows?

• The common market

• Institutions and instruments connected to harmonisation of the economy

> Harmonisation by deregulation

• Criminal justice different kettle of fish

> Differences in tradition and history per MS

> Strong connection to key norms and values per MS

> Harmonisation expands governmental power

> Crucial importance of legitimacy and due process

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EU in victims’ affairs

• The position of cross-border victims, connected fundamental EU principle of freedom to travel

• So EU has competence in matters relating to (harmonisation of the position of) cross-border victims

• But can not harmonise position of cross-border victims, without doing the same for ‘domestic’ victims as well

• Ergo: EU has competence to develop legislation concerning all victims

• Some assumptions of this line of reasoning are highly questionable

• And in practice legislation relating to cross-border victims (bar human trafficking) has been poorly implemented

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Uneven victims’ rights playing field

• Differences been criminal justice systems

• Differences between political profile victims

• Differences in services/budget for victims of crime

• Differences in ‘auxiliary’ context

> Insurance coverage, welfare state, mental health provision, trust in criminal justice agencies

• And differences were to increase with the accession of the new MS in 2004 and 2007

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The Framework Decision

• European Union Framework Decision on the standing of victims in criminal proceedings

• Adopted on the 15th of March 2001

• Contains 18 articles, main rights on following sheet

• Most articles to be transposed in one year after adoption

• Milestone: first international ‘hard’ law instrument

> Differs from soft law, like UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 1985 and Council of Europe Recommendations of 1985 and 1987

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Main victims’ rights in FD

• To respect and recognition at all stages of the criminal proceedings (article 2);

• To receive information and information about the progress of the case (article 4);

• To provide information to officials responsible for decisions relating to the offender (article 3);

• To have legal advice available(article 6);

• To protection, for victims’ privacy and their physical safety (article 8);

• To compensation, from the offender and the State (article 9);

• To receive victim support (article 13);

• To mediation (article 10);

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Some key characteristics of FD

• Vague, open phrasing of norms

>Member states are encouraged, implement rights where appropriate

>Right to mediation: Member states shall seek to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure

•Member states are obliged to transpose FD articles

>Transpose into law, not (necessarily) implement in practice

•Monitoring of transposal by European Commission

>On the basis of reports supplied by MS themselves

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Results

• Commission report of 2004

>Extremely negative

>Sometimes for the wrong reasons:

•Requirement of transposal, rather than compliance

•Use of own somewhat questionable understanding of the meaning of FD articles

•Already points to misplaced complacency

>Most MS agreed to one year transposal period on the grounds that the FD’ requirements would be easy to meet

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Results (2)

• Evaluations 2009/ 2010 (Victims in Europe-report)

•On all counts the FD has contributed to the position of victims of crime

•...but only to a certain degree

•Transposal is often lacking

•Where transposal is in place, practice is often poor, for instance compensation, support, information and protection

•Improvement concentrated in MS with better pre-FD victims’ rights record, while poor MS show little/ no improvement

•Instead of harmonisation, wider gap between MS

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Analysis of results

• FD functioned like a soft-law instrument, rather than a hard law instrument:

•Implementation of FD articles dependent on

>Costs

>Criminal justice interests as hurdles, but also as stimulus

•For instance development mediation

>The existence of a strong ‘victims champion’

•Advocate and watch dog

•Using FD to pressure MS-government to improve victims’ position

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Reflection on results

• The nature of victims’ rights

>Impact on a wide range of criminal justice issues

>Berlin: victims rights as positive freedoms, empowerment

>Fuller: victims rights as morals of aspiration

•Functioning of EU

>Differences in transposal and enforcement of EU legislation

•‘Worlds of compliance’, in particular the ‘world of dead letters’

>Differences in structure MS society: the role of civil society, trust in the law, corruption.

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The EU directive

• The EU-Directive establishing minimum standards on the rights, support and protection of victims of crime

•Following Treaty of Lisbon

>Justice matters now under the EU First Pillar, allowing use of the Community Method

>Directive stronger instrument than FD

•More possibilities for Commission to review progress

•Possibility of individual complaints

•Proposed 18 May 2011 by the EC, and now under review at the European Parliament.

•Adoption foreseen for late 2012

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Contents of the EU directive

• Largely covers the same topics as the Framework Decision

•Stronger wording

•Additional topics

>Extended the definition of victims, to include next of kin of homicide victims

>The right to an individual needs assessment, and more guidance to treatment of ‘vulnerable’ victims

>Specific rights for child victims

>The right to judicial review

>The right to have a complaint acknowledged

>More extensive section on restorative justice

>More extensive section on victim support

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A very premature evaluation of the EU Directive• Stronger instrument, clearer norms, larger coverage, high expectations

•However all of the problems associated with the FD remain, and costs are a more important consideration now than ever!

•Minimum standards?

>Improvement on best practice available,

>And unattainable for many MS within three years real risk of ‘dead letters’

>Which will also place pressure on the extent to which the Directive will lead to harmonisation and minimum levels of service throughout the EU

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The future

• 2012 will see the adoption of the EU Directive

•The extent to which it will be a success

>Depends on the efforts after adoption

>And will rely heavily on ‘victims’ champions in the MS: that means you!

•While acknowledging that the transposal from Directive articles into domestic law, is important, but only a first step

•Because it is the implementation in practice, and the impact on victims’ experiences that really matters.

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Questions?

•[email protected]

•+31 13 466 3689