Steve Peers*
*This analysis is taken from the upcoming 4th edition of EU Justice and Home Affairs Law
Victims of crime are often disheartened not just by the crime itself but also by the criminal justice system’s indifference to their needs. To tackle this issue, the EU introduced a Directive on crime victims’ rights in 2012 that Member States were required to implement by November 16, 2015. This law supersedes an earlier Framework Decision on this matter from 2001. This piece examines the changes brought about by the new rules and their potential real-world impact on victims’ rights.
Prior Law: The Framework Decision
Implemented in stages between March 2002 and March 2006, the Framework Decision broadly defined a ‘victim’ as ‘a natural person who has suffered harm, including physical or mental injury, emotional suffering or economic loss, directly caused by acts or omissions that are in violation of the criminal law of a Member State’. Court of Justice of the European Union (CJEU) decisions in Dell’Orto and Eredics, based on this definition, clarified that the Framework Decision did not extend to legal persons as victims, nor did it obligate Member States to hold legal persons criminally responsible for their actions (Giovanardi).
Applicable to ‘criminal proceedings’ as defined by national law, the CJEU, in Katz, confirmed its inclusion of private prosecutions. However, the CJEU also determined (in Gueye and Salmeron Sanchez) that it did not harmonize substantive criminal law, such as laws concerning domestic violence.
At its core, the Framework Decision advocated for ‘respect and recognition’ for victims of crime, requiring every Member State to guarantee that victims have a ‘real and appropriate role in its criminal legal system’, that they ‘are treated with due respect for the dignity of the individual during proceedings’ and that they ‘recognise the rights and legitimate interests of victims’. For ‘particularly vulnerable victims’, there was an obligation to provide ‘specific treatment best suited to their circumstances’. Member States also had to allow victims to present evidence while minimizing unnecessary questioning. In essence, these measures aimed to ensure that the ‘most vulnerable’ victims could testify in a way that shielded them from the potential harm of giving evidence in open court, using methods aligned with national legal principles.
In the well-known Pupino judgment, involving very young children allegedly abused in a nursery by their teacher, the CJEU unsurprisingly ruled that such victims should be categorized as ‘vulnerable’ according to the Framework Decision. This left the broader question of whether all minors should be considered ‘vulnerable’ unanswered. The judgment concluded that these victims were entitled to the safeguards of a special procedure where they wouldn’t have to testify in court, provided it didn’t contradict the right to a fair trial. However, in the later judgment in X, concerning alleged sexual abuse of a child, the CJEU clarified that this didn’t automatically require using these special procedures if a victim sought them to overrule prosecutors’ discretion regarding whether or not to initiate proceedings, as granted by national law.
Similarly, in the Katz case, the Court decided that someone bringing a private prosecution couldn’t demand witness status based on the Framework Decision’s general nature. Nonetheless, the Framework Decision mandated that they should be able to submit evidence in the proceedings somehow. The Court further explained (in Gueye and Salmeron Sanchez) that this right to be heard allowed the victim to describe the events and voice an opinion but not to demand a specific punishment.
The Framework Decision also outlined victims’ rights to receive information on various aspects, particularly regarding the progression of the criminal proceedings following their complaint and the release of the accused or convicted individual, especially when there could be a threat to the victim. If victims were parties or witnesses, Member States were obligated to take necessary measures to alleviate communication challenges they might encounter (presumably by offering translation and interpretation). However, this fell short of the provisions in the later EU Directive on translation and interpretation for suspects. Member States were also tasked with ensuring the provision of legal and non-legal assistance to victims who are parties to the case. It also suggested that victims who were witnesses or parties could be eligible for reimbursement of expenses. (Compare with the proposal regarding legal aid for suspects, discussed here).
Protecting victims’ privacy and safety, particularly from retaliation by the perpetrator, was paramount. This could involve special testimonial procedures, ensuring separation from the offender during court proceedings, and limiting photography of victims in courtrooms. The CJEU, in Gueye and Salmeron Sanchez, clarified that these regulations were intended ‘to ensure that the ability of victims adequately to take part in the criminal proceedings is not jeopardised by the possibility that their safety and privacy is placed at risk’. However, a victim’s right to privacy didn’t imply that they could influence the court’s sentencing of offenders, such as demanding a mandatory injunction in domestic violence situations. This was because these clauses in the Framework Decision weren’t designed to govern any indirect consequences on a victim’s personal life resulting from the imposition of criminal penalties on offenders.
Member States had to ensure victims could receive a compensation ruling from the offender during criminal proceedings unless alternative compensation avenues existed. Moreover, Member States were responsible for returning a victim’s property not required for the criminal proceedings. The Advocate-General’s opinion in Dell’Orto suggested that the right to compensation should cover financial losses. It also asserted that any exception to the possibility of securing a compensation decision should be limited to specific instances, typically addressed within the same proceedings that led to the offender’s conviction. Regarding the return of property, the opinion stated that the obligation only applied when property ownership was undisputed or established within the criminal proceedings; otherwise, civil law would govern such matters.
The Framework Decision also urged Member States to ‘seek to promote penal mediation’ between victims and offenders ‘for offences which it considers appropriate’. The CJEU, in Eredics, clarified this obligation, stating that Member States had the discretion to determine which offenses qualified for such proceedings. While the need to apply objective criteria when selecting applicable cases might influence this discretion, restricting penal mediation to offenses against individuals, transport safety, or property offenses didn’t breach the Framework Decision. Similarly, Member States were permitted to exclude domestic violence cases from penal mediation (Gueye and Salmeron Sanchez).
Specific provisions were outlined for victims residing in a different Member State, emphasizing cooperation between Member States. Additionally, Member States were tasked with promoting victim support organizations, training personnel who interact with victims (especially police officers and legal practitioners), and ensuring that victims are protected from intimidation in places like courts and police stations.
The Commission’s initial report on the national implementation of most aspects of the Framework Decision criticized the lack of reported national measures fully meeting the specific requirements of the Framework Decision. The Commission’s second report concluded that implementation of the Framework Decision remained ‘not satisfactory’, citing continued inconsistencies, omissions in national laws, and some Member States opting for non-binding methods to implement the Framework Decision.
The 2012 Directive
As of November 16, 2015, the Directive completely replaced the Framework Decision (except in Denmark, which exercised its opt-out right). Unlike the Framework Decision, which only had indirect effects, the Directive, as confirmed by the CJEU in Pupino, can directly confer enforceable rights to victims.
Additionally, several changes in the new rules generally enhance the level of protection for victims’ rights. The Directive introduces a provision outlining its objectives, which includes a general requirement for decent and non-discriminatory treatment and a specific general rule concerning child victims (Art 1(2)). The definition of ‘victim’ is expanded to explicitly include family members if a victim dies (Art 2(1)(a); ‘family members’ are defined in Art 2(1)(b)). Entirely new rules regarding a victim’s ‘right to understand and to be understood’ (Art 3) are introduced, followed by significantly expanded rules on a victim’s right to information (Arts 4 to 6; similar to the ‘letter of rights’ Directive for criminal suspects).
The Directive solidifies victims’ ‘right to interpretation and translation’, going beyond the ‘communication safeguards’ present in the previous Framework Decision. These rights essentially mirror suspects’ rights to information and translation outlined in the aforementioned EU legislation. Additionally, the Directive establishes a ‘right to access victim support services’, a significant advancement from the rules on ‘specialist services and victim support organisations’ in the Framework Decision. However, the right to be heard for victims remains largely unchanged.
A potentially significant new right for victims is the right to appeal a decision not to prosecute (Art 11). It is important to note that this doesn’t compel all Member States to guarantee prosecution following every complaint filed by a victim (a principle some Member States already adhere to). While national law determines the ‘procedural rules’ for such appeals, Member States have no discretion regarding the fundamental obligation to provide such review mechanisms or to limit the substantive grounds that can be cited in such appeals. For example, it should always be possible to argue that a decision not to prosecute was discriminatory, aligning with the obligation to treat victims and address their complaints fairly (Art 1(1)). The preamble (recital 44) suggests that this right also applies ‘where a prosecutor decides to withdraw charges or discontinue proceedings’.
However, the Directive includes some caveats regarding this right. If, under national law, the victim’s role is established only after a decision not to prosecute, only victims of serious crimes can appeal this decision (Art 11(2); for the definition of ‘serious’ crime, see recitals 8 and 18 in the preamble). Additionally, this right to appeal doesn’t extend to decisions made by courts (recital 43 in the preamble). This means victims can’t appeal a sentence or early release, although they have the right to be informed about such developments (Art 6). Furthermore, the right to appeal ‘does not concern special procedures, such as proceedings against members of parliament or government, in relation to the exercise of their official position’ (Art 11(5)). Member States can also override the right to appeal if a prosecutor decides not to prosecute following an out-of-court settlement (Art 11(3)).
Procedurally, victims must be promptly informed about their right to appeal ‘without unnecessary delay’ (Art 11(3)). The appeal should typically be handled by an entity separate from the one that decided not to prosecute (recital 43 of the preamble). However, suppose the highest prosecution authority decided not to prosecute, and national law doesn’t allow for a review of this decision. In that case, the same authority must review the decision (Art 11(4)). Although not explicitly stated, a court doesn’t necessarily have to conduct the review. However, this interpretation is debatable considering Article 47 of the Charter, which guarantees the right to access a court.
The Directive remains silent on the consequences of a successful appeal. However, following the principle of effectiveness of EU law, prosecutors should at least re-examine their initial decision not to prosecute, considering any identified flaws, and issue a new decision based on this re-evaluation.
The Directive mandates safeguards for restorative justice services, replacing the previous rules on ‘penal mediation’ (Art 12; this renders the case law on penal mediation obsolete). However, some provisions (Arts 13-19) are essentially unchanged: the right to legal aid; the right to reimbursement of expenses; the right to the return of property; the right to a decision on compensation from the offender; the rights of victims resident in another Member State; the general right to protection; and the right to avoid contact with the offender.
The Directive also introduces several changes to other important provisions: expanded rules on the protection of victims during criminal investigations (covering interviews, legal assistance, and medical examinations) (Art 20); further elaboration on victims’ right to privacy (Art 21); substantial expansion of the provisions concerning victims with ‘specific protection needs’ (Arts 22-24); expanded provisions on practitioner training (Art 25); expanded rules on cooperation between the authorities of Member States (Art 26(1)); and new provisions requiring Member States to raise awareness among victims about their rights (Art 26(2)).
Compared to its predecessor, the Directive boasts stronger legal implications and strengthens victims’ rights in several areas: non-discrimination; the ‘right to understand and to be understood’; the right to access information; the ‘right to interpretation and translation’; the ‘right to access victim support services’; the right to appeal a decision not to prosecute; safeguards in restorative justice services; protection of victims during criminal investigations; the right to privacy of victims; and provisions for victims with ‘specific protection needs’, including victims of hate crimes. Assuming it is thoroughly and correctly implemented, the Directive holds the potential to significantly contribute to protecting crime victims’ rights across the EU.
See also: the Commission’s detailed guidance document concerning implementation of the Directive.
Barnard & Peers: chapter 25
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