Explanatory Memorandum to COM(2011)275 - Minimum standards on the rights, support and protection of victims of crime - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)275 - Minimum standards on the rights, support and protection of victims of crime. |
|---|---|
| source | COM(2011)275  |
| date | 18-05-2011 |
This proposal is part of a legislative package which aims at strengthening the rights of victims in the EU and which also includes the following two other elements: a communication on strengthening victims' rights in the EU and a proposal for a Regulation on mutual recognition of protection measures in civil matters.
The European Commission has identified as a strategic priority[1] the protection of victims of crimes and the establishment of minimum standards, based on the Stockholm Programme and its Action Plan[2]. These documents place victims high on the EU agenda and firmly establish the need and intention to create an integrated and co-ordinated approach to victims, in line with the October 2009 JHA Council Conclusions[3].
The European Union has set itself the objective of maintaining and developing an area of freedom, security and justice, the cornerstone of which is the principle of mutual recognition of judgments and other decisions of judicial authorities taken in civil and criminal matters within the Union. The Commission's 'Citizenship Report' of 27 October 2010 i seeks to dismantle the obstacles to citizens' rights by adding substance to individual rights granted at EU level. Strengthening victims' rights, together with the strengthening of procedural rights of suspects or accused persons in criminal proceedings reflects this approach.
The European Union has already acted on the rights of victims in criminal proceedings through Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings. Whilst improvements have been achieved in this area, the objectives of the Council Framework Decision have not been fully realised.
The European Parliament has also called upon the Council to adopt a comprehensive legal framework offering victims of crime the widest protection[5]. In its resolution of 26 November 2009[6] on the elimination of violence against women, the 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, not least by employing preventive measures and called on the Union to guarantee the right to assistance, protection and support for all victims of violence. Declaration 19 of the protocols to the Treaty on the Functioning of the European Union also calls on Member States to take all necessary measures to prevent and punish acts of domestic violence and to support and protect the victims of such violence.
Judicial cooperation in criminal matters in the Union is based on the principle of mutual recognition of judgments and judicial decisions. Mutual recognition can only operate effectively in a spirit of confidence, 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 trust that those rules are correctly applied. Where victims of crime are not subject to the same minimum standards throughout the EU, such trust can be reduced due to concerns over the treatment of victims or due to differences in procedural rules.
Common minimum rules should thus 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. They should also contribute to reducing obstacles to free movement of citizens since such common minimum rules should apply to all victims of crime.
This proposal aims to ensure that the wide ranging needs of victims of crime, which cut across a number of other EU policies, are respected and met. In particular, the protection of victims' rights is an essential part of a range of EU policies and/or instruments relating to human trafficking, sexual abuse and sexual exploitation of children, violence against women, terrorism, organised crime, and enforcement of road traffic offences.
The proposal will build on and complement existing instruments, in particular Council Directive 2011/36/EU on preventing and combating trafficking in human beings, and protecting victims[7], in Council Directive on combating the sexual abuse, sexual exploitation of children and child pornography[8] presently under negotiation or in Council Framework Decision of 2002/475/JHA on combating terrorism[9] as modified by Council Framework Decision 2008/919/JHА of 28 November 2008[10]. It will establish minimum standards on victims' rights which will improve the general environment for protecting victims in EU law and policy. While the specific instruments on, for example, acts of terrorism, trafficking and sexual abuse and sexual exploitation of children and child pornography address the particular needs of certain groups of victims of identified types of crimes, this proposal will set out the horizontal framework for addressing the needs of all victims of crime, irrespective of the type of crime or the circumstances or place in which it was committed. The provisions of this proposal are consistent with the approach taken in the above policy areas.
This Directive will not affect provisions contained in other EU acts which address the specific needs of particularly vulnerable victims in a more targeted manner. In particular, adult victims of trafficking in human beings shall benefit from the measures established in Council Directive 2011/36/EU which correspond to the measures established in Articles 12, 20(b), 21(3)(a, c, d) of this Directive; child victims of trafficking in human beings shall benefit from the measures established in Council Directive 2011/36/EU which correspond to the measures established in Articles 12, 20, 21(2)(a, b, c), 21(3) and 22 of this Directive; child victims of sexual abuse, sexual exploitation and child pornography shall benefit from the measures established in Council Directive [….]/[..]/EU [on combating the sexual abuse, sexual exploitation of children and child pornography] which correspond to the measures established in Articles 12, 20, 21(2)(a, b, c), 21(3) and 22 of this Directive.
Victims of terrorism will benefit from improved mechanisms for identifying their needs, keeping them informed of proceedings and providing adequate protection during proceedings. Likewise, for road traffic victims, though this action does not specifically cater for all the detailed needs of such victims, greater awareness and improved cultural attitudes of legal practitioners combined with appropriate assessments will help ensure their needs are met, in particular their treatment before a specific crime has been identified.
Moreover, in line with the approach taken for victims of human trafficking and sexual abuse and sexual exploitation of children and child pornography, the proposal will be consistent in addressing the particular needs of vulnerable victims.
Looking to the future, action in relation to specific categories of victims such as victims of terrorism and organised crime is also envisaged. In particular analysis of the existing gaps in the protection of victims of terrorism is due to take place with a view to improving the situation of victims of terrorism in Europe.
– Trafficking in human beings, where protection of victims' rights has been introduced in Council Directive 2011/36/EU, including specific focus on children who are particularly vulnerable to trafficking[11];
– Sexual abuse, sexual exploitation of children and child pornography, where a proposed new directive addresses the specific needs of child victims of those crimes[12];
– An EU Agenda for the Rights of the Child, which sets a key objective of making the justice systems more child-friendly. Negative experiences of child victims who are involved in criminal proceedings should be reduced and child victims should be given the opportunity to play an active part in criminal proceedings[13];
– Council Directive 2004/80/EC relating to compensation for crime victims which aims at facilitating access to compensation in cross-border situations[14];
– Combating violence against women, being a strategic priority in the 2010-2015 Strategy on Gender Equality, and the focus of the Daphne III Programme[15];
– Protection of the rights of terrorist victims[16].
Contents
The Commission's standards on consultations were followed. Experts from different backgrounds including governments, law enforcement agencies, NGOs, international organisations and universities took part in detailed discussions on the legislative plans as part of the preparation of the impact assessment accompanying this proposal.
The Commission contracted an external study to support the preparation of the impact assessment and a further 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[17]. Results from two surveys have also been used: the external study consulted 384 representatives from government and non-government sectors, receiving 119 replies, and the Victims in Europe Project[18] received 97 replies to its legal implementation questionnaire and 218 to its organisational questionnaire.
During the preparation of the Impact Assessment, the Commission held a public consultation, open to all members of the public, as well as to non-governmental and governmental organisations, seeking their views on what action the EU should take to improve the situation of victims of crime. The Commission received 77 replies by the deadline for responses.
A meeting of academic experts, NGOs and Member States was held on 18-19 February 2010 and was followed by a further Justice Forum on 14 April 2010.
In addition to direct consultation, the Commission has drawn on a number of studies and publications[19].
The impact assessment concluded that it was necessary to replace the 2001 Framework Decision with a new Directive containing concrete obligations on the rights of victims. Legislation should be followed with practical measures to facilitate implementation. It would also be a first step in this field with further studies and action envisaged, in particular in relation to compensation of victims and legal aid for victims.
A number of provisions of Council Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings have been maintained in their original form or have been amended only to the extent necessary for clarity of drafting. For instance, Articles 9, 12, 14, 15, 16 and 25 of the proposed Directive correspond to Articles 3, 6, 9, 11 and 12 of the Framework Decision. The following comments concentrate on those articles which introduce substantive changes to the Framework Decision.
The purpose of this Directive is to ensure that all victims of crime benefit from minimum standards throughout the EU. In particular, this Directive makes provision for support and protection to be given to family members of victims since such persons are often also harmed by the crime and may themselves be at risk of secondary victimisation as well as victimisation or intimidation by the offender or his associates. All provisions in this Directive are also applicable to family members of a victim whose death has been caused by a criminal offence since such persons 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.
Articles 3, 4, 5 and 6 – Information rights and right to understand and to be understood
The purpose of these Articles is to ensure that victims receive sufficient information in a form they can understand to enable them to fully access their rights and to ensure they feel treated in a respectful manner. Such information should be available from the moment a victim makes a complaint of a criminal offence as well as on a regular basis throughout criminal proceedings and in relation to the progress of the case. Sufficient detail should be provided to enable victims to make informed decisions about their participation in proceedings and how to access their rights, in particular when deciding whether to request a review of the decision not to prosecute.
For a number of reasons victims may have difficulties in understanding information provided in a standard, written form. In particular, the victim may not understand the language of the information or there may be other factors such as the victim's age, maturity, intellectual and emotional capacities, literacy levels and any disabilities for instance related to sight or hearing which may hinder or completely prevent a victim from understanding the information. Information should therefore and as much as possible be provided in a variety of formats to take account of these factors.
Article 7 – Right to access victim support services
The purpose of this Article is to ensure that victims have access to support services which provide information and advice, emotional and psychological support and practical assistance which are often crucial to the recovery of victims and help them cope with the aftermath of the crime and with the strain of any criminal proceedings.
Support should be available from the earliest possible moment after the commission of a crime irrespective of whether it has been reported. Such services can prove particularly important in regard to a victim’s decision to ultimately report a crime. Equally, victims may require support both during the period of any proceedings and in the long term. Support services may be provided by governmental or non-governmental organisations and should not involve excessive procedures and formalities which might reduce effective access to such services. Support may be provided in a variety of ways such as face-to-face meetings, by telephone or other remote means in order to maximise the geographical distribution and availability of services. Certain groups of victims including victims of sexual violence, bias crime such as gender based violence and race hate crime, and victims of terrorism often require specialist support services due to the particular characteristics of the crime they have fallen victim to. As far as possible, such services should be made available.
Although the provision of support should not be dependent on a victim making a complaint of an offence to the police or other competent authorities, such authorities are often best placed to inform victims of the possibility of support. Member States are therefore encouraged to establish appropriate conditions to enable the referral of victims to victim support services, including by ensuring that data protection requirements can be adhered to.
Article 8 – Right of victims to have their complaint acknowledged
The purpose of this Article is to ensure that when a person makes a complaint of a crime, the victim is provided with an official acknowledgment which they can refer back to in any future communications.
Article 9 – Right to be heard
The purpose of this Article is to ensure that the victim has an opportunity to provide initial and further information, views or evidence during criminal proceedings. The exact extent of this right is left to national law and may range from basic rights to communicate with and supply evidence to a competent authority through to more extensive rights such as a right to have evidence taken into account, the right to ensure that certain evidence is taken or the right to make interventions during the trial.
Article 10 – Rights in the event of a decision not to prosecute
The purpose of this Article is to enable the victim to verify that established procedures and rules have been complied with and that a correct decision has been made to end a prosecution in relation to a specific person. Precise mechanisms for a review are left to national law. However, such a review should as a minimum be carried out by a person or authority different to the one that took the original decision not to prosecute.
Article 11 – Right to safeguards in the context of mediation and other restorative justice services
Restorative justice services encompass a range of services whether attached to, running prior to, in parallel with or after criminal proceedings. They may be available in relation to certain types of crime or only in relation to adult or child offenders and include for example victim-offender mediation, family group conferencing and sentencing circles.
The purpose of this Article is to ensure that where such services are provided, safeguards are in place to ensure the victim is not further victimised as a result of the process. Such services should therefore have as a primary consideration the interests and needs of the victim, repairing the harm to the victim and avoiding further harm. Participation of the victim should be voluntary which also implies that the victim has sufficient knowledge of the risks and benefits to make an informed choice. It also means that factors such as power imbalances, and the age, maturity or intellectual capacity of the victim which could limit or reduce the victim's ability to make an informed choice or could prejudice a positive outcome for the victim should be taken into consideration in referring a case to and in conducting a restorative process. Whilst private proceedings should in general be confidential, unless agreed otherwise by the parties, factors such as threats made during the process may be considered as requiring disclosure in the public interest. Ultimately any agreement between the parties should be reached voluntarily.
Article 13 – Right to reimbursement of expenses
This provision is consistent with the 2001 Framework Decision in providing to victims who participate in criminal proceedings the right to reimbursement of expenses. It also provides for reimbursement where the victim attends the trial without participating in the proceedings as such. The purpose is to ensure that victims are not prevented from attending the trial and seeing justice done, due to their own financial limitations.
Article 18 – Identification of vulnerable victims
The purpose of this Article is to ensure that victims are treated in an individual manner and that a consistent mechanism is established to identify vulnerable victims who may require special measures during criminal proceedings.
All victims of crime are per se vulnerable and accordingly require sensitive and careful treatment. However, some victims are particularly vulnerable to further victimisation or intimidation by the accused or suspected person or his associates. In addition, some victims are particularly at risk of being further distressed or harmed by their involvement in criminal proceedings whether through the giving of evidence or through other forms of participation. Such victims require special measures in order to minimise the likelihood of further harm occurring.
This Article provides that the vulnerability of victims to such harm be determined by the personal characteristics of the victim and by the nature or type of crime a victim has suffered. The majority of children and persons with disabilities are at particular risk of harm due to their personal characteristics. As a group they can immediately be identified as vulnerable and in the majority of cases in need of special measures. Victims within other categories based on the nature or type of crime, such as victims of sexual violence, including exploitation, and victims of human trafficking are also in most cases vulnerable to further victimisation during proceedings.
At the same time, this article recognises that victims are individuals who react in different ways to a crime and have different needs and vulnerabilities. Thus a victim may be vulnerable despite not falling into a specific vulnerable victim category. An individual assessment mechanism is therefore to be established to ensure that all vulnerable victims are identified and properly protected. Such an approach can be crucial in facilitating a victim’s recovery and ensuring they are provided with the right assistance and protection during proceedings and afterwards. It maximises the ability to prevent secondary and repeat victimisation and intimidation and to enable the victim to effectively access justice. Nevertheless, such an approach must be carried out to an extent proportionate to the likelihood that criminal proceedings will be instituted and that specific measures will be required by the victim. In particular the severity of the crime and the degree of apparent harm suffered by the victim provides a useful indication of the extent of any particular individual assessment.
The individual assessment should determine a victim’s needs during proceedings and any requirements for referral to victim support services. Those public officials who first come into contact with a victim when a crime is reported should be trained and should have access to appropriate guidance, tools or protocols to enable them to carry out assessments of the needs of victims in a consistent manner.
Individual assessments should consider any factors which may increase the likelihood of a victim suffering further victimisation or intimidation during proceedings. In particular, the following factors should be taken into account: age, gender and gender identity, ethnicity, race, religion, sexual orientation, state of health, disability, communication difficulties, relationship to or dependence on the suspected or accused person, previous experience of crime and the type or nature of the crime such as bias crime, organised crime or terrorism. Victims of terrorism require particular attention in any assessment given the varying nature of such acts ranging from acts of mass terrorism to targetted terrorism against individuals.
Article 19 – Right to avoidance of contact between victim and offender
This Article mirrors the approach taken in Article 8 of the 2001 Framework Decision with a view to ensuring that where a victim must attend a venue as a result of their participation in criminal proceedings, appropriate steps should be taken to ensure the victim does not have to come into contact with accused or suspected persons. This could be achieved by various means such as establishing separate waiting areas, and controlling the arrival of victims and the accused. Best practice and guidance offered to public officials can also act as an important source of information on how to assist in avoiding contact.
Article 20 – Right to protection of victims during questioning in criminal investigations
The purpose of this Article is to prevent secondary victimisation by ensuring that the victim is interviewed as early as possible and that interaction with authorities should be as easy as possible whilst limiting the number of unnecessary interactions the victim has with them. Decisions on when to carry out any interviews should as far as possible take account of the victim’s needs as well as any urgency in relation to the gathering of evidence. Victims may be accompanied by a trusted person of their choice. Only in exceptional circumstances should this possibility be limited and then only in relation to a specific person. The victim should then be permitted to be accompanied by another person of their choice.
Articles 21 and 22 – Right of protection of vulnerable victims including children during criminal proceedings
The purpose of this Article is to ensure that when victims have been identified as being vulnerable to further victimisation or intimidation, appropriate measures are taken to help prevent such harm. Such measures should be available throughout criminal proceedings whether during the initial investigative or prosecutorial phase or during the trial itself. The measures necessary will vary according to the stage of proceedings.
During criminal investigation, minimum levels of protection are required in relation to any interviews with the victim. These should be carried out in a sensitive manner and officials should have received appropriate training to this end. Such training should ensure that officials know appropriate methods of interviewing which will take account of a victim's particular situation, minimise distress and maximise the collection of high-quality evidence. To this end, it may be necessary, according to the vulnerability of the victim, that interviews are only carried out in appropriate premises. This may mean premises which allow for video interviews or simply where furniture for example is adapted for children or persons with disabilities.
Vulnerable victims can find the interview process highly distressing, particularly where the crime is of a very personal nature. Establishing trust with the interviewer can be important and may only happen over a period of time. For this reason, this article requires that in most cases a vulnerable victim is to be interviewed by the same person. Exceptions are permitted for reasons of good administration, such as an urgent need to interview someone else or the unavailability of the usual interviewer. For similar reasons, in cases of sexual violence, victims should have the right to be interviewed by a person of the same gender.
During the trial itself, protection from intimidation, whether intentional or not, is also a relevant factor when determining appropriate protection measures. This article establishes minimum measures for this purpose as well as to minimise the distress of, in particular, testifying. Measures to enable the victim to avoid visual contact with the defendant are established as well as measures to exclude members of the public and press. In particular, in order to ensure that the fundamental rights of an accused or suspected person are respected, the decision on whether such measures are to be taken is left to judicial discretion. However, the fact that a victim is a child, a person with a disability, a victim of sexual violence or of human trafficking combined with the individual assessment should provide a strong indication of the need for a protection measure.
Given the particular vulnerabilities of children, additional measures should also be made available and utilised in normal circumstances. Article 22 provides that interviews may be videotaped and used as evidence in court and that in appropriate cases, where a child does not have a representative, the judicial authority should appoint one.
Article 24 – Training of practitioners
The purpose of this Article is to establish training requirements for public officials who come into contact with victims. The level, type and frequency of training including any specialist training should be determined in accordance with the extent and nature of the officals' contact with victims as well as, in particular, whether they are in contact with specific groups of victims.
Training should cover issues which will assist officials to treat victims in a respectful manner, to identify protection needs and to provide them with appropriate information to help them cope with proceedings and access their rights. Such training should cover issues such as awareness of the negative effects of crime on victims and the risk of causing secondary victimisation, skills and knowledge, including special measures and techniques, required to assist victims and minimise any trauma to the victim in particular from secondary victimisation, recognising and preventing intimidation, threats and harm to victims, the availability of services providing information and support specific to the needs of victims and the means of accessing these services.
Additionally, this article ensures that those providing victim support or restorative justice services should also be trained to an appropriate level such that they treat victims in a respectful and impartial manner and provide their services to professional standards.
The objective of the proposal cannot be sufficiently achieved by Member States alone, since the aim of the proposal is to promote trust between them and it is therefore important to agree on common minimum standards that apply throughout the whole of the European Union. The proposal will approximate Member States' substantive rules on rights, support and protection of victims of crime in order to build mutual trust.
In addition, there is a large cross-border element of victimisation with significant numbers of EU citizens living, working and travelling around the EU and falling victim to crime whilst abroad. Persons in such situations can find accessing their rights particularly difficult and criminal proceedings can impose an additional burden on them. Citizens should be able to rely on having access to a minimum level of rights across the EU.
The proposal therefore complies with the subsidiarity principle.
The proposal complies with the proportionality principle in that it does not go beyond the minimum required in order to achieve the stated objective at European level and what is necessary for that purpose.