(Re-published with permission from EU Issue Tracker)
The EU is currently legislating in the area of criminal law and will have new laws regarding the protection of victims of crime and mutual recognition of national civil law protection measures.
Protecting the basic rights of victims immediately following a crime – as well as in the longer term – is the main objective of a package of two legislative proposals, and an accompanying policy document, recently presented by the European Commission.
The policy document is a Communication on strengthening victim’s rights in the EU; the legislative proposals are A) a proposal for a Directive on minimum standards for victims, and B) a proposal for a Regulation on mutual recognition of civil law protection measures.
The Communication: Strengthening Victim’s Rights
The Communication sets out justifications for EU action in the area of victim’s rights. With 75 million people becoming direct victims of crime in the EU every year, the Commission feels that it is necessary to ensure that all victims receive a basic level of protection.
Crime does not just affect individuals in their own Member States; citizens can be affected when they are living abroad, or on holiday. The Commission argues therefore that a harmonised level of protection should be available across Member State borders.
The fundamental aim of the package is to enhance trust in the justice systems of Europe and to improve access to justice. The package of measures also seeks to cover all types of crime and attempts to pay particular attention to more complex forms such as terrorism and domestic violence. It also considers road traffic accidents, where culpability is particularly complex. The package sets out an enhanced level of protection for those seen as most vulnerable, including children, the disabled and victims of sexual violence.
The proposed Directive: Minimum Standards for Victims
The proposal for a Directive sets out harmonised standards for the treatment of victims, so that no matter where individuals are within the EU, they will receive a basic level of care. This proposed Directive would replace the 2001 Council Framework Decision on the standing of victims in criminal proceedings.
The proposal sets out ten general rights for victims of crime:
The right to information and the right to be understood
Victims must be given information, throughout the criminal investigation, that explains their rights, in a language they understand. Information should not only be given at the time of reporting the crime, but also at regular intervals during the process. Victims must also be offered translators so they can make themselves understood to the authorities.
The right to access victim support services
Victims should be given the opportunity to access support services as soon as they report the crime. This support should carry on for as long as necessary and be both practical in offering support as well as considering the victims emotional needs. Member States are not placed under any obligation to provide support through a particular medium and may do so over the telephone or through a remote service.
The right to have complaint acknowledged
The victim must be provided with official acknowledgement which certifies that the crime took place.
The right to be heard
The victim must be allowed to make comments and statements on the crime that was committed against them. The Member State may choose the extent of the communication that takes place.
Rights if no prosecution takes place
If the crime is not prosecuted by the national authorities, the victim is entitled to a justification for the inaction. There should also be an independent appeals procedure in place so that the victim can challenge the decision.
Mediation and restorative justice
Member States are not obliged to use restorative justice methods (where the criminal undertakes actions to make amends to the victim) or mediation. However where such processes are used the Member State must ensure that the victim suffers no further harm. Where the victim is particularly vulnerable, either as a result of the crime or due to personal factors, this must be considered when accessing the consent of the individual to take part in restorative justice.
The right to reimbursement of expenses
Victims have the right to attend the criminal proceedings whether or not they are directly participating in the trial. As a result Member States must reimburse the expenses of the victim.
The right to avoidance of contact between victim and offender
Member States are obliged to take all necessary steps to ensure that the victim does not come into contact with the offender. There is particular risk of this taking place during the trial, outside the courtroom. Therefore Member States are required by the proposal to take necessary measures to minimise the risk of this happening (for example, by establishing separate waiting rooms).
The right to protection of victims during questioning in criminal investigations
Member States are expected to make sure that questioning of the victim is undertaken in a sensitive way. Save in exceptional circumstances the victim is should always be allowed to choose an individual to accompany them when they are being interviewed.
The right of protection of vulnerable victims including children during criminal proceedings.
The proposal pays particular regard to vulnerable individuals and their protection. It provides for their identification and their need for specialist assistance. When an individual is identified as vulnerable protection measures should be in place throughout the criminal proceedings to ensure their safety. Vulnerable individuals should be questioned by trained officials using evidence gathering techniques that are appropriate to the victim.
The Proposed Regulation: Civil Law Protection Measures
For some victims of crime, their vulnerability does not end at the conclusion of the criminal trial. In a number of situations, including organised crime and crimes of domestic violence, there is the possibility of reprisal attacks.
In the proposal for a Regulation therefore, the Commission has set forward rules that would guarantee the mutual recognition of civil protection orders. Though civil protection orders can take a number of forms, they most commonly prohibit the offender coming within a prescribed distance of the victim or, they ban the offender from a certain geographical area. Under the proposal, if an order is granted in one Member State it would be enforceable in another.
The Commission intends to put the mutual recognition into practice by creating a standardised certificate that will be issued by the competent Member State. On presentation of the certificate individuals will then be entitled to comparable protection in another Member State.
The victim is entitled to protection even if a comparable measure does not exist in another Member State. The proposal provides that Member States may only chose not to recognise the protection certificate if it is irreconcilable with a decision taken in the Member State of recognition.
The Commission’s legislative proposals have been sent to the European Parliament and the Council for examination. Both of these proposals will follow the ordinary legislative process.
The Commission is currently working towards a proposal that will review Directive 2004/80/EC on compensation of crime victims and Regulation “Rome II” (to address the question of the law applicable to limitation periods for cross-border traffic accidents).
The Commission is also currently carrying out studies on enhancing protection to individuals, who are victims of particular types of crime, including: terrorism, organised crime and gender-based violence.