Steve Peers

National criminal justice systems are frequently criticized for overlooking the needs of crime victims. In contrast, the EU has been attentive to this matter since the initial stages of EU criminal law development. Early on, one of the EU’s ‘Framework Decisions’ addressed victims’ rights. This measure has since been superseded by a comprehensive Directive on this subject, which Member States are required to implement by October 2015.

However, this Directive is not the only measure pertaining to crime victims. The issue of state compensation for victims is covered by an earlier Directive from 2004. This compensation Directive primarily aims to create a framework for compensation in cross-border situations, specifically when a ‘violent intentional crime’ occurs in a Member State different from the victim’s habitual residence. However, the Directive states that ‘All Member States shall ensure that their national rules provide for the existence of a scheme on compensation to victims of violent intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims.’

In a recent case (C), a woman in Italy sought state compensation based on this provision, following her attacker’s conviction for sexual violence. The national court had ordered the perpetrator to compensate her (a matter addressed by the general Framework Decision, now the Directive, on victims’ rights), but enforcing this order was impossible as he lacked the financial means. Consequently, she attempted to obtain compensation from the Italian state instead, citing the Directive. However, the Court of Justice of the European Union (CJEU) determined that the Directive was inapplicable to purely domestic cases like hers, as it solely pertained to cases with a cross-border element.

With due respect, this conclusion is unconvincing. While the Directive undeniably prioritizes compensation in cross-border situations, Article 12(1) clarifies that this is founded upon each nation’s compensation system. Thus, Article 12(2) - as quoted earlier - mandates that each Member State establish a national system encompassing crimes such as the one in this case. Therefore, Italy’s failure to provide state compensation for residents who are victims of such crimes will create complications when individuals from other Member States seek compensation from the state in similar circumstances.

Given that such cross-border disputes undoubtedly fall under the Directive’s purview, the CJEU might be inclined to rule that, in such instances, crime victims would have a directly enforceable right to compensation from the Italian government, despite its incomplete implementation of the Directive. While safeguarding some victims is positive, all victims deserve protection. EU lawyers have become accustomed to ‘reverse discrimination’ regarding family reunification. In this context, EU citizens moving between Member States can benefit from decent standards, while those remaining in their home country might face stricter national laws in certain countries (like the UK). Accepting that the same double standard applies to compensation for victims of violent crime hardly enhances the legitimacy of EU law, particularly when a more favorable interpretation of the relevant legislation suggests it shouldn’t.

[update: see analysis of the main crime victims’ Directive, which has applied since autumn 2015, here].

Barnard & Peers, chapter 25