Monday, 16 November 2015

Crime victims: does EU law now confer extra rights?

Steve Peers*

*This analysis is adapted from the forthcoming 4th edition of EU Justice and Home Affairs Law

Most crimes have victims. Those victims are often not only devastated by the impact of the crime, but also frustrated by the insensitivity of the criminal justice system towards their concerns. To address this, back in 2012 the EU adopted a Directive on crime victims’ rights, which Member States must comply with by today’s date. This law replaces a previous EU law on the subject, a Framework Decision dating back to 2001. What is different about the new rules? How much impact could they have on victims’ rights in practice?

Previous law: the Framework Decision

The Framework Decision had to be applied in phases between March 2002 and March 2006. It defined a ‘victim’ broadly, as meaning ‘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’. According to the CJEU rulings in Dell’Orto and Eredics, in light of this definition, the Framework Decision did not apply to legal persons as victims. Nor did it require Member States to make legal persons criminally liable for their acts (Giovanardi).

It applied to ‘criminal proceedings’ defined in accordance with national law, and the Court of Justice confirmed in Katz that this included private prosecutions. But the CJEU also ruled (in Gueye and Salmeron Sanchez) that it did not harmonize substantive criminal law, such as domestic violence legislation.

As to the substance, the Framework Decision provided first of all generally for ‘respect and recognition’ for crime victims, requiring that each Member State ensure 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’. In the case of ‘particularly vulnerable victims’, there was an obligation to provide ‘specific treatment best suited to their circumstances’. Member States also had to make provision for victims to supply evidence, but to refrain from questioning them any more than necessary. Bringing these points together, the ‘most vulnerable’ victims had to able to testify in a manner which protected them from the effects of giving evidence in open court, by means compatible with national legal principles.

In the well-known Pupino judgment, which concerned very young children who were allegedly abused in a nursery by their teacher, the Court of Justice unsurprisingly ruled that such victims must be considered ‘vulnerable’ pursuant to the Framework Decision – leaving aside the bigger question of whether all minors must be considered ‘vulnerable’. So these victims were entitled to the protection of a special procedure in which they did not have to give their testimony in court, as long as this was consistent with the right to a fair trial. But in the later judgment in X, concerning alleged sexual abuse of a child, the CJEU ruled that this did not entail an obligation to use those special procedures where in effect the victim was asking for their use as a means to overrule the discretion to bring proceedings which national law gave to prosecutors.

Similarly, in the Katz case, the Court ruled that a person bringing a private prosecution did not have the right to demand, in light of the generality of the Framework Decision, that he have the status of a witness; but nevertheless the Framework Decision required that he must be able to submit evidence in the proceedings in some form. The Court later clarified (in Gueye and Salmeron Sanchez) that this right to be heard in the proceedings entailed the possibility for the victim to describe what happened and to express an opinion, but not to insist on any particular penalty.

Next, victims had the right to receive information on a number of issues, inter alia on the conduct of the criminal proceedings following their complaint and on the release of the accused or convicted person, at least where there might be a danger to the victim. If victims were parties or witnesses, Member States had to take necessary steps to reduce any communication difficulties they face (presumably by providing for translation and interpretation; this fell short of the later EU Directive on translation and interpretation for suspects). Member States also had to ensure legal and non-legal aid was provided to victims who are parties, and that victims who were witnesses or parties might receive reimbursement of their expenses. (Compare to the proposal on legal aid for suspects, discussed here).

Victims’ privacy and safety had to be protected, inter alia from reprisals from the offender. This could entail special methods of giving testimony, ensuring lack of contact with the offender in court proceedings, and limiting photography of victims in courtrooms. The CJEU clarified in Gueye and Salmeron Sanchez that these rules aimed ‘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’. But victims’ right to a private life didn’t mean that they could influence the penalties which courts could impose upon offenders, such as a mandatory injunction in domestic violence cases, since these provisions in the Framework Decision did not aim to regulate any indirect consequences to the victims’ private life stemming from the imposition of criminal penalties upon offenders.

Member States had to ensure that it was possible for the victim to receive a decision on compensation from the offender in criminal proceedings, unless in certain cases compensation is provided in another manner; and Member States had to return victims’ property that was not needed for the purpose of criminal proceedings. The Advocate-General’s opinion in Dell’Orto argued that the former right had to include compensation for pecuniary losses, and that any exception from the possibility to obtain a decision on compensation had to be limited to certain cases only and take place usually within the framework of the same proceedings which resulted in a conviction of the offender. As for the return of property, the opinion argued that the obligation to return it only applied where the ownership of the property was undisputed or had been established in criminal proceedings; otherwise the issue is a matter for civil law.

The Framework Decision also required Member States to ‘seek to promote penal mediation’ between victim and offender ‘for offences which it considers appropriate’. The CJEU clarified this obligation in Eredics: Member States had discretion to decide which offences are covered by such proceedings. While their discretion might be affected by a need to use objective criteria to decide on which cases to cover, it was not a breach of the Framework Decision to confine penal mediation to cases involving offences against the person, transport safety, or offences against property. Member States could equally exclude domestic violence cases from penal mediation (Gueye and Salmeron Sanchez).

There were specific provisions for victims who are resident in another Member State, and for cooperation between Member States. Finally, Member States also had to promote victim support organizations, train personnel in contact with victims (particularly police officers and legal practitioners), and ensure that intimidation of victims cannot occur in venues such as courts and police stations.

The Commission’s first report on the national transposition of most provisions of the Framework Decision was quite critical regarding the lack of reported national measures which fully met the specific requirements of the Framework Decision. Its second report concluded that implementation of the Framework Decision was still ‘not satisfactory’, due to the continued variations and omissions in national law and the decision of some Member States to implement the Framework Decision by non-binding means.

The 2012 Directive

From today’s date, the Directive has fully replaced the previous Framework Decision (except in Denmark, which had an opt-out). One difference with the previous rules is the legal effect of the law: unlike the Framework Decision, the Directive can confer directly effective rights on victims, rather than indirect effect only (as confirmed by the CJEU in Pupino).

Furthermore, there are a number of substantive changes to the rules, which overall increase the standard of protection for victims’ rights. First of all, the Directive contains a new provision on its objectives, including a general requirement of decent treatment, including non-discrimination; there is also a specific general rule on child victims (Art 1(2)). The definition of ‘victim’ now expressly includes family members in the event of a victim’s death (Art 2(1)(a); ‘family members’ are defined in Art 2(1)(b)). There are wholly new rules on the victim’s ‘right to understand and to be understood’ (Art 3), followed by greatly expanded rules on the victim’s right to receive information (Arts 4 to 6; compare to the ‘letter of rights’ Directive for criminal suspects).

Victims have a ‘right to interpretation and translation’, which is much stronger than the rules on ‘communication safeguards’ in the previous Framework Decision. In fact, these rights are essentially a short version of suspects’ rights to information and translation, set out in the EU legislation referred to above. They also have a ‘right to access victim support services’, which again is much stronger than the rules on ‘specialist services and victim support organisations’ in the Framework Decision. On the other hand, the right to be heard for victims has not changed significantly.

A potentially important new right for victims is the right to review a decision not to prosecute (Art 11), although this does not go so far as to require all Member States to ensure a prosecution following every complaint by a victim (which some Member States provide for already in principle). While the ‘procedural rules’ for such reviews are determined by national law, Member States do not have any discretion as regards the underlying obligation to provide for such reviews, or to limit the substantive grounds which might be pleaded in such challenges. For instance, it should always be possible to argue that a decision not to prosecute was discriminatory, in light of the obligation to deal with victims and respond to victims’ complaints in a non-discriminatory manner (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 special rules on this right. Where (under national law) the role of the victim is established only after a decision not to prosecute has been taken, only the victims of serious crime have such a right of review (Art 11(2); on the definition of ‘serious’ crime, see recitals 8 and 18 in the preamble). Also, the right of review does not apply to decisions taken by courts (recital 43 in the preamble), so victims have no right to review of a sentence, or to early release, although they have the right to information about such developments (Art 6).  The right to review 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 review in cases where a prosecutor decides not to prosecute following an out-of-court settlement (Art 11(3)).

Procedurally, victims must be given sufficient information about their right to review ‘without unnecessary delay’ (Art 11(3)). Normally the review must be carried out by a body independent of the body which decided not to prosecute (recital 43 of the preamble), but where the decision not to prosecute was taken by the highest prosecution authority and no review of that decision is possible under national law, the decision must be reviewed by the same authority (Art 11(4)). Implicitly, it is not necessary for a court to carry out the review, but that interpretation is questionable in light of the right of access to court in Article 47 of the Charter.

The Directive is silent on what happens if the review is successful. However, logically the principle of effectiveness of EU law requires that in this case, at the very least the prosecutors must reconsider their decision not to prosecute to the extent that it was flawed, and produce a fresh decision following that reconsideration.

Next, the Directive provides for safeguards in restorative justice services, in place of the prior rules on ‘penal mediation’ (Art 12; it follows that the case law on penal mediation is no longer relevant). But a series of rules (Arts 13-19) have not been fundamentally altered: 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.

Finally, there are a number of changes to other important rules: the rules on protection of victims during criminal investigations (interviews, legal assistance, medical examinations) have been expanded (Art 20); the right to privacy of victims has been elaborated further (Art 21); the provisions on victims with ‘specific protection needs’ have been hugely expanded (Arts 22-24); there are expanded provisions on the training of practitioners (Art 25); the rules on cooperation between Member States’ authorities have been expanded (Art 26(1)); and there are new provisions requiring Member States to make victims more aware of their rights (Art 26(2)).

Compared to the previous legislation, the Directive not only has stronger legal effect, but also has increased substantive rights for victims as regards: non-discrimination; the ‘right to understand and to be understood’; the right to receive information; the ‘right to interpretation and translation’; the ‘right to access victim support services’; the right to review a decision not to prosecute; safeguards in restorative justice services; protection of victims during criminal investigations; the right to privacy of victims; and victims with ‘specific protection needs’, including victims of hate crimes. The Directive is therefore likely to make a significant contribution to the protection of crime victims' rights in the EU - assuming, as always, that it is fully and correctly implemented.

See also: the Commission’s detailed guidance document concerning implementation of the Directive. 

Barnard & Peers: chapter 25

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