LL.M. PAPER Victims’ Rights in Criminal Matters Post Lisbonlib.ugent.be/fulltxt/RUG01/001/892/210/RUG01... · Victims’ Rights in Criminal Matters Post Lisbon 6 PART 1. INTRODUCTION

Ghent University

Faculty of Law

Academic year 2011-2012

LL.M. PAPER

Victims’ Rights in Criminal Matters

Post Lisbon

Anouk Dehing

Promotor: Prof.Dr. Gert Vermeulen

Co-reader 1: Nina Persak

Co-reader 2: Wendy De Bondt

Student: Anouk Dehing Promotor: Prof. Dr. Gert Vermeulen Academic year: 2011-2012

2 Victims’ Rights in Criminal Matters Post Lisbon

TABLE OF CONTENTS

PART 1. INTRODUCTION .................................................................................................... 6

Chapter 1. Background .............................. ..................................................................... 7

Chapter 2. Legal context: the UN and the Council of Europe....................................... 8

Section 1. The UN ....................................................................................................................... 8

Section 2. The Council of Europe .......................................................................................... 9

PART 2. VICTIMS’ RIGHTS IN CRIMINAL MATTERS PRE LIS BON .................................11

Chapter 1. Council Framework Decision of 15 March 2 001 on the standing of victims in criminal proceedings............................ ......................................................................11

Section 1. Describing the Framework Decision ............................................................... 11

A. Background & legal context ................................................................................................. 11

I. Background.................................................................................................................. 11

II. Legal Context............................................................................................................... 12

B. Framework decision: the instrument .................................................................................. 13

C. Legal basis ............................................................................................................................. 13

D. Content ................................................................................................................................. 14

Section 2. Reviewing the Framework Decision ................................................................ 17

A. Implementation.................................................................................................................... 17

I. 2004 Commission Report ............................................................................................ 17

II. 2009 Commission Report ............................................................................................ 18

III. 2009 Victim Support Europe Report ........................................................................... 18

B. Critical remarks..................................................................................................................... 20

I. Critical Remarks concerning the Framework Decision................................................ 20

1. Legal Basis............................................................................................................... 20

2. Time pad & peculiar character of Framework Decision.......................................... 20

3. Vague provisions ..................................................................................................... 21

4. The “partie civile”.................................................................................................... 22



5. Lack of infringement possibilities............................................................................ 23

6. Hidden agenda? ...................................................................................................... 23

II. Critical remarks concerning the implementation reports........................................... 24

1. Value of the written reports.................................................................................... 24

2. Implementation = transposal.................................................................................. 24

3. Additional rights...................................................................................................... 25

C. Conclusion............................................................................................................................ 26

Chapter 2. Council Directive of 29 April 2004 relat ing to compensation to crime victims ............................................ .................................................................................27

Section 1. Describing the Compensation Directive ........................................................ 27


I. Background.................................................................................................................. 27

II. Legal context ............................................................................................................... 28

B. Directive: the instrument ..................................................................................................... 29

C. Legal basis ............................................................................................................................. 29

D. Content ................................................................................................................................. 29

Section 2. Reviewing the Compensation Directive ......................................................... 31


I. Matrix Report: Study on the application of the Compensation Directive .................. 31

II. Commission report...................................................................................................... 33


I. Critical remarks concerning the Compensation Directive........................................... 33

1. Vague provisions............................................................................................................ 33

2. Greater clarity about the compensation schemes............................................................. 35

3. Assisting and deciding authorities: developing an effectively integrated system......... 36

II. Critical remarks concerning the implementation report ............................................ 36

1. Lack of accurate data .................................................................................................... 36



C. Conclusion............................................................................................................................. 37

PART 3. VICTIMS’ RIGHTS IN CRIMINAL MATTERS POST LI SBON ...............................39

Chapter 1. Legal context post Lisbon ............... ............................................................39

Section 1. Introduction of a legal basis .............................................................................. 39

Section 2. The Stockholm Programme & its Action Pla n .............................................. 40

Section 3. The Victims’ Rights Package ............................................................................. 41

A. Preparatory work ................................................................................................................. 42

B. Legal elements ...................................................................................................................... 43

I. Directive establishing minimum standards on the rights, support and protection of

victims of crime ..................................................................................................................... 43

II. Regulation on mutual recognition of protection measures in civil matters ............... 43

III. Non-legislative measure.............................................................................................. 44

C. Roadmap ............................................................................................................................... 44

Chapter 2. Directive of 13 December 2011 on the Eur opean Protection Order ..........45

Section 1. Describing the EPO Directive ............................................................................ 45


I. Background.................................................................................................................. 45

II. Legal context ............................................................................................................... 46


C. Legal basis ............................................................................................................................. 48

D. Content ................................................................................................................................. 48

Section 2. Reviewing the EPO Directive ............................................................................. 51



I. Critical remarks concerning the EPO Directive ........................................................... 51

1. Need for an EPO Directive?............................................................................................ 51

2. The definition of “protection measure”......................................................................... 52

3. Prioritising...................................................................................................................... 53



4. Double criminality.......................................................................................................... 54

5. Financial implications .................................................................................................... 54

6. Relationship with other instruments ............................................................................. 55

7. Are protection measures the best instrument to effectively protect victims?............... 55

C. Conclusion............................................................................................................................. 56

Section 1. Describing the Minimum Standards Directi ve .............................................. 57


I. Background.................................................................................................................. 57

II. Legal context ............................................................................................................... 58


C. Legal basis ............................................................................................................................. 58

D. Content ................................................................................................................................. 58

Section 2. Reviewing the Minimum Standards Directiv e ............................................... 60



I. Critical remarks concerning the Minimum Standards Directive ................................. 61

1. Foreseen timetable ........................................................................................................ 61

2. Vague provision ............................................................................................................. 61

3. The definition of “victim”............................................................................................... 62

4. Vulnerable victims ......................................................................................................... 62

4. Infringement procedures ............................................................................................... 63

5. Hidden agenda?............................................................................................................. 63

C. Conclusion............................................................................................................................. 63

PART 4. GENERAL CONCLUSION ......................... ...........................................................65



PART 1. INTRODUCTION

The research question of this LL.M.-paper concerns the adequacy of the protection of victims’ rights

in criminal matters within the EU. In order to formulate an answer to this question, the paper will

discuss and evaluate the different relevant legal instruments regulating victims’ rights in the EU.

From the 1980s onwards, making respect for victims’ rights a reality for every human being suffering

from effects of crime has been increasingly prioritised in EU policy-making and on international level.

However, the methods that were chosen to develop victims’ rights legislation and policies have

turned out to be at times unsatisfactory to reach this goal.

The paper first dedicates a chapter to the general background of victims’ rights. This chapter also

includes an outline of the victims’ rights instruments that have been established by the UN and the

Council of Europe.

Subsequently, the paper sets out to explore the main objective of the paper: evaluating the work

that has been done in the field of victims’ rights within the EU.

Firstly, the paper focuses on the situation within the EU before the adoption of the Lisbon Treaty. Pre

Lisbon, the EU reflected minimum standards for victims of crime through the adoption of the

Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings1, followed

by the Directive of 29 April 2004 relating to compensation to crime victims2. The implementation

level of these two pieces of legislation was found inadequate to effectively protect and ensure the

rights and needs of victims. Therefore, new action on the protection of victims’ rights had to be

taken.

In a second part, the paper will consider this renewed action on victims’ rights, that started with the

adoption of the Treaty of Lisbon. The Treaty of Lisbon introduced a legal basis for the EU to act in the

field of victims’ rights. This led to the adoption of a Victims’ Rights Package, including the Proposal

for a Directive establishing minimum standards on the rights, support and protection of victims of

crime3 and a Proposal for a Regulation on mutual recognition of protection measures in civil matters

4,

which complements a Directive on the European Protection Order5. Some of them have already been

adopted, some are to be adopted in the near future.

The discussion of each of the selected legal instruments will be twofold. First of all, each instrument

will be subject to a descriptive part, dealing with its background and legal elements. In a second part,

these observations are used as a template to evaluate the instrument. The evaluation consists of an

assessment of the implementation level of the instrument (if already implemented by the time of

writing, being May 2012) and the presentation of some critical remarks towards the instrument in

general. A conclusion will be formulated after the review of each of the legal instruments.

1 Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings [2001] OJ

L 82/1. 2 Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims [2004] OJ L 261/15.

3 European Parliament and Council, ‘Proposal for a Directive of the European Parliament and of the Council, establishing

minimum standards on the rights, support and protection of victims of crime’ COM (2011) 275 final 4 European Parliament and Council, ‘Proposal for a Regulation of the European Parliament and the Council on mutual

recognition of protection measures in civil matters’ COM (2011) 276 final. 5 Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European protection

order [2011] OJ C 69/5.



This two level approach will allow me to present an answer to the research question in the general

conclusion of the paper.

It should be emphasised that the purpose of this paper is not to answer sociological questions such

as: “Why are victims’ rights important?” and “What should victims’ rights uphold?”. Although these

are of course essential concerns that get policy-makers to act in the first place, the paper focuses on

the legislative work that has been done within the EU in the field of victims’ rights over the last

decades.

Chapter 1. Background

In this chapter, the general history of victims’ rights will be considered in order to understand the

position of victims’ rights over the past decades. The detailed, long-term history of victims’ rights will

not be discussed, as this would not contribute to the purpose of this paper.

Although victims’ rights have gotten more and more recognition on a European and international

level since the 1980s, they were historically never considered as an important element of judicial

proceedings. Traditionally, victims of crime played a very limited role and focus was rather on

prosecuting the offender and defending society. The victim was seen as a source of information,

without whose contribution, prosecuting and sentencing would become quasi impossible.6 The

participation of the victim served thus mainly the Member States’ interest rather than his own. This

leading role taken by the Member States, and the consequent sidelining of victims, led to a so-called

“secondary victimisation”, meaning that the victim of a crime feels further violated because of the

negative reaction society gives to the primary victimisation.7

Due to this traditional approach, a negative and unsustainable situation had been developed, which

gave rise to a collective dissatisfaction towards the criminal justice system. Moreover, the self-

awareness of victims grew and led to the “emancipation of the victim”.8 Victims complained about

the lack of useful information and didn’t feel accepted within the criminal justice process.

Slow but steady, these developments changed the attitude towards the position of crime victims.

There was a clear shift in the mindset of policy makers as victim’s needs were more and more seen as

a central part of ensuring justice, alongside catching and punishing the offenders.9

Since the 1980s, in almost all Member States groupings of citizens' associations acted as a

mouthpiece and high-profile advocate for victims. In tandem with these groupings, a number of

Member States also came to pay more attention to the largely overlooked victims of crime by way of

regulating victims’ rights.

6 J Shapland, J Willmore and P Duff, Victims in the criminal justice system (Gower Publishing Company Limited 1985) 175.

7 Uli Orth, ‘Secondary Victimization of Crime Victims by Criminal Proceedings’ (2002) 15 Social Justice Research 313.

8 R Kool, ‘Uit de schaduw: de emancipatie van het slachtoffer binnen de strafrechtpleging’ (1999) 5 Justitiële Verkenningen

60-73. 9 Marc S Groenhuijsen and Sanra Reynaers, ‘Het Europees Kaderbesluit inzake de status van het slachtoffer in de

strafprocedure: Implementatieperikelen en interpretatievragen’ (2006) 3 Panopticon 14.



Chapter 2. Legal context: the UN and the Council of Europe

Also at global level, important achievements were made. Not only the EU made a lot of progress in

the field of victims’ rights, but international organisations such as the UN and the Council of Europe

attempted to address the position and the treatment of victims by way of legal instruments.

Although the objective of this paper concerns the protection of victims’ rights within the EU, it will

briefly consider the most important victims’ rights instruments of the UN and the Council of Europe.

Some of these instruments have been a great influence and inspiration for other victims’ rights

documents, including the EU-instruments that will de discussed in this paper. To have a basic

knowledge of these instruments may therefore be useful to understand the background of the

instruments that will be analysed more in depth further on. In addition, it is valuable to put the EU-

instruments in a bigger context, in order to really understand their position and value.

The United Nations and the Council of Europe have been conducting important work in pursuit of

international solutions to the problems faced by crime victims.

Section 1. The UN

In 1985, the United Nations adopted the United Nations Declaration of basic principles of justice for

victims of crime and abuse of powers10

. The UN Declaration has been adopted by a resolution of the

UN General Assembly and therefore should be considered to be soft law. Although the UN

Declaration is thus not legally binding, it is frequently hailed as a magna Charta for victims of crime11

as it was a pioneering work and a catalyst of change.12

The UN Declaration contains a bill of rights

which inspired and continues to inspire many subsequent international and domestic legally non-

binding as well as binding instruments on victim’s rights. Moreover it positively influences the

interpretation of existing texts.13

The UN Declaration is characterised by its numerous follow-up activities aimed to effectively

implementing its provisions. The UN Economic and Social Council for example, has monitored the

implementation by adopting its own resolutions in which it recommends the steps to be taken in

ensuring rights for victims of crime.14

Likewise, a detailed list of measures for implementation was

adopted by the General Assembly in 1989. In 1994, the Secretary-General circulated an extensive

questionnaire to the UN Member States covering all items in the UN Declaration. In addition, a

10 General assembly Resolution 40/34 of November 1985 - Declaration of Basic Principles of Justice for Victims of Crime and

Abuse of Power [1985] <www.un.org/documents/ga/res/40/a40r034.htm>. 11

ZP Separovic, ‘The victim declaration: a substantial moral victory for victims of crime and abuse of power’ in A Gaudreault

and others (eds.), Beyond boundaries. Research and action for the millennium (Montreal, Association québécoise Plaidoyer-

Victimes 2000) 277-282. 12

MS, Groenhuijsen and RM Letschert, ‘Reflections on the Development and Legal Status of Victims' Rights Instruments’ in

M.S. Groenhuijsen and R.M. Letschert (eds.), Compilation of international victims' rights instruments (Wolf Legal Publishers

2006) 1-18. 13

Marc Groenhuijsen, ‘The draft UN convention on Justice and Support for Victims of Crime, with special reference to its

provisions on Restorative Justice.’ [2008] International Annals of Criminology 121. 14

UN Economic and Social Council Resolution 1986/10 of 21 May 1986; UN Economic and Social Council Resolution

1998/21 of 28 July 1998 - Plan of Action for the Implementation of the Declaration of Basic Principles of Justice for Victims

of Crime and Abuse of Power; UN Economic and Social Council Resolution 2000/15 of 27 July 2000 - Implementation of the

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.



“Guide for policymakers on the implementation of the UN Declaration”15

was published in 1999,

joined by the “Handbook on the use and application of the Declaration”16

.

Despite these attempts, many felt that the implementation of the UN Declaration was still

unsatisfactory and that it needed to be updated. The idea that implementation should be made the

subject of a fully-fledged UN Convention arose. A UN convention is an agreement between different

countries that is legally binding to the contracting States.

In 2005, a meeting was convened with experts from different world regions to discuss the need to

transform the 1985 UN Declaration into a UN Convention on Victims’ Rights. The question whether a

Convention would be the proper instrument to stimulate further implementation of and compliance

with the UN Declaration was addressed. The meeting concluded that a Convention was indeed

desirable, which lead to a first draft of a UN Convention on Justice and Support for Victims of Crime

and Abuse of Power17

.18

Improvements were made to the draft Convention on several occasions19

but

up until the time of writing, the Convention has not been adopted yet.

In addition to this, the UN General Assembly adopted Basic Principles and Guidelines on the right to a

remedy and reparation for victims of gross violations of international human rights law and serious

violations of international humanitarian20

law in 2005. The basic principles are soft law and thus have

no binding legal effect.

Section 2. The Council of Europe

The work of the Council of Europe led to the adoption of a number of recommendations, such as the

Resolution on the compensation of victims of crime21

in 1977. This Recommendation stipulates that in

case compensation can not be granted by any other means, the Member States should compensate

all persons that suffered serious injuries because of the crime and, in case of a deadly victim,

everybody that depended upon the victim. The compensation covers all sorts of previous and future

damages.

In 1983, the Council of Europe’s Committee of Ministers approved the European Convention on the

compensation of victims of violent crimes22

, regulating victims’ rights to compensation. The

15 ‘The Guide for Policy Makers on the Implementation of the United Nations Declaration of Basic Principles of Justice for

Victims of Crime and Abuse of Power.’ [1999] < http://www.uncjin.org/standards/standards.html >. 16

‘The Handbook on Justice for Victims on the Use and Application of Declaration of Basic Principles of Justice for Victims of

Crime and Abuse of Power" United Nations Office for Drug Control and Crime Prevention’ [1999]

< http://www.uncjin.org/standards/standards.html >. 17

DRAFT UN Convention on Justice and Support for Victims of Crime and Abuse of Power [2006]

< http://www.justice.gov.za/VC/docs/international/2006_Draft%20UN%20Convention%20Victims.pdf >. 18

Willen van Genugten, Rob van Gestel, Marc Groenhuijsen and Rianne Letschert, ‘Loopholes, Risks and Ambivalences in

International Lawmaking: The Case of a Framework Convention on Victims' Rights.’ (2006) 37 Netherlands Yearbook of

International Law 110-111. 19

For example during the 2008 conference at TIVI. (Tokiwa International Victimology Institute in Mito, Japan). 20

General Assembly resolution 60/147 of 16 December 2005 - Basic Principles and Guidelines on the Right to a Remedy and

Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International

Humanitarian Law [2005] < http://www2.ohchr.org/english/law/remedy.htm >. 21

Council of Europe Committee of Ministers Resolution (77) 27 on the Compensation of Victims of Crime [1977]

<https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=595033&SecMod

e=1&DocId=659298&Usage=2>.

Recommendations adopted before 1979 were issued in the "Resolutions" series of texts adopted. 22

Council of Europe European Convention on the Compensation of Victims of Violent Crimes [1983]



Convention only has direct effect in as far as it is signed and ratified by States. Twelve EU-Member

States signed the Convention and nine of them actually ratified it. The Convention entered into force

in 1988 and creates minimum standards relating to compensation for State parties. It is applicable to

victims of intentional crimes of violence who have suffered serious bodily injury or impairment of

health, which is directly attributable to the intentional crime. The dependants of persons who have

died as a result of such crime are eligible as well.

In 1985, the Council of Europe adopted the Recommendation on the position of the victim in the

framework of the criminal law and procedure23

. The basic rights awarded to victims are by and large

the same as the rights included in the UN Declaration. The Recommendation also offers guidelines

who do not have any legally binding force. Unlike the UN, the Council of Europe never showed the

same measure of concern about implementation of the Recommendation. No overall assessment has

taken place as to the level of compliance by the Member States.

Subsequently, the Council of Europe adopted the Recommendation on assistance to victims and the

prevention of victimisation24

(1987) and the Recommendation concerning mediation in penal

matters25

(1999).

More recently, in 2006, the Council of Europe issued a Recommendation on assistance to crime

victims26

. This Recommendation is extensive and proclaims that Member States should identify and

support measures to alleviate the negative effects of crime. Moreover, they should make sure that

the protection of a victim’s physical and psychological integrity is guaranteed at all stages of criminal

procedure. The instrument contains a wide variety of victims’ rights which in some regard are more

detailed and elaborative compared to other victims’ rights instruments, such as the Framework

Decision on the standing of victims in criminal proceedings and the UN Declaration.27

< http://conventions.coe.int/Treaty/en/Treaties/Word/116.doc >. 23

Council of Europe Committee of Ministers Recommendation No. R (85) 11 of the Committee of Ministers to Member

States on the Position of the Victim in the Framework of Criminal Law and Procedure [1985]

< http://ec.europa.eu/civiljustice/comp_crime_victim/docs/council_eur_rec_85_11_en.pdf >. 24

Council of Europe Committee of Ministers Recommendation No. R (87) 21 of the Committee of Ministers to Member

States on Assistance to Victims and the Prevention of Victimisation [1987]

<https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=608023&SecMod

e=1&DocId=694280&Usage=2 >. 25

Council of Europe Committee of Ministers Recommendation No. R (99) 19 of the Committee of Ministers to member

States concerning mediation in penal matters [1999]

< https://wcd.coe.int/ViewDoc.jsp?id=420059&Site=DC >. 26

Council of Europe Committee of Ministers Recommendation Rec(2006)8 of the Committee of Ministers to member states

on assistance to crime [2006] < https://wcd.coe.int/ViewDoc.jsp?id=1011109&Site=CM >. 27

The Recommendation refers for instance to the need to assist victims in all aspects of their rehabilitation, at home and in

the workplace (art. 3.1). It also refers to the specific needs of particularly vulnerable victims, and actually defines these

victims as victims of sexual and domestic violence (art. 5.3) and victims of terrorism (art. 5.4).



PART 2. VICTIMS’ RIGHTS IN CRIMINAL MATTERS PRE LISBON

Since the 1980s, the importance of victims’ rights were set more prominently on the global agenda

and the European Union inevitably followed suit. In an attempt to safeguard the needs of victim in

criminal matters, the EU introduced two instruments on victims’ rights. In 2001, the Framework

Decision on the standing of victims in criminal proceedings was adopted. This instruments covers the

position of victims in judicial proceedings in general. In 2004, an instruments specifically regulating

the compensation to victims, was adopted, namely the Directive relating to compensation to crime

victims.

In this part, an in depth analysis of both instruments will be provided.

Chapter 1. Council Framework Decision of 15 March 2 001 on the standing of victims in criminal proceedings

The first hard-law intervention of the EU in the field of victims’ rights was through a comprehensive

Framework Decision on the standing of victims in criminal proceedings (hereafter: the Framework

Decision) which was adopted in 2001. This event is a milestone in the history of victims’ rights. Prior

to this event, only soft-law instruments were available. The Framework Decision contains similar

provisions as the other, older, instruments, the most important distinction being that the instrument

is legally binding for all Member States of the EU.

Section 1 provides a descriptive report on the Framework Decision. First of all, the background and

context of the instrument will be discussed. The most important legal events in the EU’s victims’

rights history that led to the adoption of the Framework Decision will be pointed out. Next, the

framework decision as an instrument and the legal basis are discussed. As a final point of the section,

the actual content of the Framework Decision will be considered.

Section 2 includes the evaluation and review the Framework Decision by way of assessing the

implementation level. In order to do this, tree implementation reports were consulted.

Subsequently, some critical remarks are formulated towards the Framework Decision and towards

the implementation reports. Section 2 finally offers a general conclusion.

Section 1. Describing the Framework Decision

A. Background & legal context

I. Background

The adoption of the Framework Decision was set in motion because of the following concerns. First

of all, the victims’ rights legislation that was available within the EU Member States before the

adoption of the Framework Decision contained substantive differences, caused by the diverse social

attitudes towards victims in the Member States. A lot of key concepts were interpreted differently,

for example the scope of the term “victim”. As a consequence, victims of similar offences were



exposed to different rights in different Member States. This observation was considered to be

incompatible with the establishment of an area of freedom, security and justice for all. In order to

ensure mutual trust in each others’ criminal justice systems, it was found desirable for the Member

States to conform to a standard set of procedural safeguards not just for suspects and defendants

but also for victims. Furthermore, victims across the EU needed to have equal access to all services.

In several EU Member States, provisions pertaining to victims’ rights were embedded in a multitude

of legislative documents. The purpose of adopting a unified piece of legal instrument, also led to the

introduction of the Framework Decision.

II. Legal Context

The Treaty of Amsterdam introduced the possibility of creating an area of Freedom, Security and

Justice. Following the entry into force of the Treaty of Amsterdam in 1999, several policy documents

were adopted in order to realise the objectives of the Treaty of Amsterdam.

The 1998 the Council and Commission action plan on how best to implement the provisions of the

Treaty of Amsterdam on an area of freedom, security and justice28

, the so-called Vienna Action Plan,

clarifies the rationale of the “Area of Freedom, Security and Justice” and defines the priorities and

measures. Victims' rights were also included in the Action Plan.29

According to the Plan, adequate

and comparable procedural guarantees should be complemented by standards and codes of good

practice in areas of transnational relevance and common concern (e.g. interpretation) which may

also extend to certain parts of the enforcement of criminal decisions, including victim support.

Moreover the question of victim support should be addressed within five years following entry into

force of the Treaty of Amsterdam.

To make some progress towards the new Area of Freedom, Justice and Security, these general

guidelines of the Vienna Action Plan were insufficient. That’s why the Vienna European Council

formally decided to convene a special summit in Tampere on 15 and 16 October 1999.

Ahead of this European Council meeting in Tampere, the Commission adopted the 1999

Communication on standards and actions concerning crime victims in the European Union30

. This

Communication provided a full response to the decisions set out in the Vienna Action Plan and

influenced the conclusions of the Tampere Council. The European Parliament adopted a Resolution

on the Commission’s Communication in 2000.31

The start of the Tampere summit revealed a consensus on the need to fully develop the Union as an

Area of Freedom, Security and Justice by making active use of the possibilities offered by the Treaty

of Amsterdam. The establishment of a “European area of justice” was to be realised through

enhancing access to justice and mutual recognition of judicial decisions. When it comes to victims’

rights, Member States recognised the need to lay down minimum standards on the protection of

victims of crime in the EU, in particular on access to justice and compensation for damages. In

28 Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on

an area of freedom, security and justice [1999] OJ C 019. 29

Vienna Action Plan - points 19 and 51 (c). 30

Commission, ‘Communication from the Commission to the Council, the European Parliament and the Economic and Social

Committee of 14 July 1999 – Crime victims in the European Union – Reflexions on standards and action’ COM (1999) 349

final. 31

European Parliament Resolution on crime victims in the EU [2001] OJ C 67.



addition, it was decided that national programmes should be set up to finance measures, public and

non-governmental, for assistance to and protection of victims.32

This was the trigger that eventually led to the adoption of the Framework Decision on the standing of

victims in criminal proceedings in 2001.

When we discuss the background of victims’ rights in the EU, the European Forum for Victim

Services33

definitely deserves mentioning. This is a network of non-governmental victim support

organisations, which provide assistance and information to victims of crime. In 1996, the EFVS

adopted a Statement of victims’ rights in the process of criminal justice34

. Statements have to be

qualified as “non law”, as they are not supported by any public authority whatsoever. Nevertheless,

this document turned out to have functioned in a similar way as soft law instruments in practice.35

The Statement was presented to Euro-Commissioner Anita Gradin, at the time head of the

Commission for Freedom, Security and Justice. She became aware of the importance of crime

victims’ rights. More specifically, she was convinced that the fate of cross-boarder victims differs

from those who fall victim in their own country.36

She set up a Committee of Experts who produced a

Statement on Crime Victims in the European Union: reflections on standards and action37

. In 1999,

this Statement was adopted by the Commission and endorsed by the Council of Ministers. Obviously,

this work also had an important share in firmly establishing the rights of victims on the agenda of the

European Union.

B. Framework decision: the instrument

With the entry into force of the Treaty of Amsterdam, framework decisions were created, replacing

joint actions. Article 34(2)(b) TEU38

stipulates that framework decisions are used to approximate the

laws and regulations of the Member States. They are legally binding on the Member States as to the

result to be achieved, but leave it up to the them to choose the form and methods to achieve that

result. Member States have to introduce new legislation or adjust their existing national laws and

regulations to meet the standards. Framework Decisions do not entail direct effect. The TEU does not

give any other rules on implementing framework decisions.

C. Legal basis

The Framework Decision is adopted on the basis of articles 31 (e) and 34(2)(b) TEU39

. According to

article 31 (e) and article 34 (2)(b), framework decisions can only be adopted “to establishing

minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of

32 Tampere European Council 15 and 16 October 1999 Presidency Conclusions point 32.

33 In October 2007 the European Forum for Victim Services officially changed its name to Victim Support Europe

34 European Forum for Victim Services Statement of victims’ rights in the process of criminal justice [1996]

< http://www.apav.pt/portal/pdf/criminal_justice_rights.pdf >. 35

MS, Groenhuijsen and RM Letschert, ‘Reflections on the Development and Legal Status of Victims' Rights Instruments’ in

MS Groenhuijsen and RM Letschert (eds.), Compilation of international victims' rights instruments (Wolf Legal Publishers

2006) 11. 36

P Rock, Constructing victims’ rights, the Home Office, New Labour, and victims (Oxford, Oxford University Press 2004)

513. 37

Statement on Crime Victims in the European Union: reflections on standards and action

<www.europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in_criminal_matters/l33091_en.h

tm> 38

This article was removed with the entry into force of the Treaty of Lisbon 39

Article 82-83 TFEU.



organised crime, terrorism and illicit drug trafficking”. In other words, framework decisions can only

be adopted in the field of substantive criminal law and harmonisation of criminal procedure law is

not included. The Framework Decision however, relates to formal criminal procedure law. This issues

was explicitly raised during the treatment of the draft Proposal of the Framework Decision in the

Parliament. It was considered doubtful whether it was legitimate and appropriate for the EU to

operate in this field. Consequently, it would only be approvable for the Commission to adopt this

initiative as a recommendation instead of a framework decision. Otherwise, the Commission would

exceed its competences concerning Justice and Home Affairs. 40

The adoption of the Framework Decision was eventually legitimised by invoking the classical

European freedoms and in particular the freedom of persons to travel without restrictions within the

European common space. Residents of any EU-Member State who temporarily or permanently reside

in another Member State and there fall victim, should receive the same level of protection as they

would in their home country.41

At the heart of the Framework Decision thus lies the concern with the position of the so-called cross-

boarder victims, those victimised in another Members State than their country of residence. They

experience specific problems, such as language barriers and lack of understanding of the host State’s

legal system. Moreover, they have often returned to their home Member State by the time the court

trial begins. These specific problems of “foreign” victims, such as workers, students or tourists, are

the main driver for EU-competence in the protection of crime victims.42

D. Content

The shortest and most accurate summary of the general objective of the Framework Decision is

probably contained in point 8 of the Recital: “The rules and practices as regards the standing and

main rights of victims need to be approximated, with particular regard to the right to be treated with

respect for their dignity, the right to provide and receive information, the right to understand and be

understood, the right to be protected at the various stages of procedure and the right to have

allowance made for the disadvantage of living in a different Member State from the one in which the

crime was committed.”43

In other words, the Framework Decision aims to ensure that victims of

crime receive an equitable treatment throughout the European Union.

The Framework Decision contains a number of generic and particular provisions relating to protective

measures. The content of the instrument will be summarised in the following paragraphs.

Article 1 contains definitions and consequently also stipulates the personal field of application of the

Framework Decision. The Framework Decision defines “victim” as natural person who has suffered

harm directly caused by acts or omissions that are in violation of the criminal law of a Member State.

40 Ilse Creve, Eva Delanghe and Helga Coppen, ‘Slachtoffer en strafprocedure’ in Gert Vermeulen (ed), Aspecten van

Europees formeel strafrecht (Maklu 2002) 437-438. 41

Rianne Letschert and Marc Groenhuijsen, ‘Global governance and global crime: Do victims fall in between?’ in R.M.

Letschert and J.J.M. Dijk (eds), The new faces of victimhood (Dordrecht, Springer 2011) 10. 42

MS Groenhuijsen and A. Pemberton, ‘The EU framework Decision for Victims of Crime: Does Hard Law Make a

Difference?’ [2009] European Journal of Crime, Criminal Law and Criminal Justice 44. 43

ibid 45.



As outlined above, the position of cross-border victims is the main driver for the EU to initiate

legislation concerning the protection of crime victims.44

However, it showed to be not practically

feasible to regulate the position of cross-border victims without paying attention to national victims

as well. European standardisation of the position of cross-border victims may lead to the situation

that cross-border victims enjoy rights not open to nationals, which would again be at odds with the

freedoms relating to the European common space. For this reason, the content of the Framework

Decision, although it is in certain ways still explicitly inspired by the phenomenon of cross-border

victimization, ultimately applies to all victims of crime.

Article 2 includes a right to respect and recognition at all stages of the criminal proceedings and

mentions there is “a specific treatment needed best suited for victims who are particularly

vulnerable” .

In accordance with article 3, the Member States have to guarantee a right to be heard during

proceedings and a right to supply evidence. Moreover, the questioning of the victim should be kept

to a minimum as much as possible.

The right to receive understandable information of relevance for the protection of the victim’s

interests, is prescribed in article 4. The victim should be kept informed about the progress of the case

and about the offenders release, at least in cases where there might be danger to the victim. The

victim’s choice not to receive information should also be respected.

Communication safeguards are included in article 5. Victims need to know the relevant steps of the

criminal proceedings and their position in these proceedings. This article was also adopted to cope

with the specific problems cross-boarder victims are faced with. In those cases, the communication

towards the victim should be as clear as possible. This can be done by making translators and

interpreters available, though this might give rise to a substantial budgetary impact and slow down

the proceedings.45

Article 6 concerns a right to have legal advice and legal aid available, regardless of the victim’s

means.

Reimbursement of victims’ expenses incurred due to participation in the criminal procedure is

regulated in article 7.

As for articles 5, 6 and 7, the scope is restricted to ‘the victim having the status of witnesses or

parties to the criminal proceedings’, the so-called “partie civile”.

Article 8 relates to a right to protection, for victims’ privacy and their physical safety. It prescribes a

suitable level of protection for victims and their families and appropriate measures should be taken

to protect their privacy and photographic image. The competent authority should also consider

whether there is a serious risk of reprisals or intent to intrude upon the victims’ privacy. Special

waiting areas should be foreseen, so that contact between victim and offender is kept to a minimum.

The victims, particularly those most vulnerable, should also be protected from the effects of giving

evidence in open court. Under aged victims could for example be assisted by a confidential

44 MS Groenhuijsen and A. Pemberton, ‘The EU framework Decision for Victims of Crime: Does Hard Law Make a

Difference?’ [2009] European Journal of Crime, Criminal Law and Criminal Justice 44. 45

MS Groenhuijsen, ‘Hervorming van het strafprocesrecht met het oog op de belangen van het slachtoffer: 'we ain't seen

nothing yet'.’ [2001] Delikt en Delinkwent 648.



counsellor when they are interviewed in court or vulnerable victims could also testify through video-

conference.46

The right to adequate compensation, from the offender and the Member States, is prescribed in

article 9. The right to compensation is only briefly regulated in the Framework Decision. The Directive

relating to compensation to crime victims provides more elaborated rights on the matter.

Article 10 has to do with mediation and more precisely prescribes a duty for the State to promote

mediation in criminal cases which it considers appropriate for this sort of measure.

Article 11 and 12 are the main articles relating to cross-border crime.

Article 11 places a general duty on Member States to ensure that authorities can take appropriate

measures to minimise the specific difficulties foreign victims experience. The victim should be able to

make a statement immediately after the commission of the offence and for the purpose of hearing

those victims, use should be made of video conferencing and telephone conference calls. Moreover,

the victim should be able to make a complaint before the competent authority of his State of

residence if he was unable or unwilling to do so in the Member State where the offence was

committed.

Article 12 prescribes the duty for Member States to foster, develop and improve cooperation with

foreign states in cases of cross-boarder victimisation. The Framework Decision acknowledges the

importance of both governmental and non-governmental cooperation as it refers to both networks

directly linked to the judicial system and of links between victim support organisations.

Article 13 deals with the right to receive victim support. It refers to both initial reception of victims

and assistance thereafter. Once again, the Framework Decision encourages and promotes the

delivery of victim support through NGOs.

Article 14 encourages professional education for those who come into contact with victims during

the criminal procedure. Among that category, we should count personnel of victim support

organisations, police officers and legal practitioners. The way a victim is treated right after the

offence was committed, is of major importance. It can make the victim feel secure and understood

and this defines the way the victim will process the crime.47

Article 15 contains a general rule prescribing the duty for member states to avoid secondary

victimisation.


Europees formeel strafrecht (Maklu 2002) 431. 47

ibid 434.



Section 2. Reviewing the Framework Decision

In this section, attention will be given to what the Framework Decision eventually changed in the

field of victims’ rights. Insight will be given on the consequences of the Framework Decision after its

adoption. It will be assessed whether the Framework Decision reached its goals. For this purpose,

two Commission reports and a Victim Support Europe Report haven been consulted. After studying

these reports, some critical reflections will be shared.

A. Implementation

Article 17 concerns the implementation. It should be noted that the Framework Decision approaches

matters speedily. For the largest part, the provisions had to be implemented within one year after

adoption of the Framework Decision, by 22 March 2002. The provision concerning communication

safeguards (article 5) and specific assistance to the victim (article 6) require implementation by 22

March 2004 and article 10, relating to mediation should be implemented by 22 March 2006.

Article 18 requires an assessment of the measures taken by the Member States to comply with the

Framework Decision within one year following each of the implementation dates. This assessment

should be based on reports from the Member States containing the text of the provisions enacting

into national law the requirements laid down by this Framework Decision.

I. 2004 Commission Report48

The Commission published a first evaluation report on the implementation of the EU Framework

Decision in 2004. For most provisions of the Framework Decision transposal into national law was

required by March 2002. However, by this time none of the Member States had notified the

Commission of measures taken to transpose the Framework Decision. That is why the deadline for

the first evaluation report was deferred until March 2003. By then, ten Member States had send a

complete contribution. The Commission’s analysis could therefore only be fragmentary.

The overall conclusion of the report was extremely negative: “No Member State can claim to have

transposed all the obligations arising from the Framework Decision and no Member State can claim

to have correctly transposed the first paragraph of article 2.” Article 2(1) is more or less the root of

all other concrete victims’ rights and the Commission thus points out a serious shortcoming on a

large scale.

The Commission then illustrated this overall negative assessment by a long list of more specific

shortcomings.

Some typical examples: Nearly no Member State has done enough to meet the requirement

concerning the victim’s right not to receive information. (article 4 (4)) The same is true with regard to

the right to reimbursement of expenses made during the procedure. (article 7) The requirement to

introduce mandatory trainings for all authorities who come into contact with victims is inadequately

implemented almost everywhere. (article 14) The Commission repeatedly points out the lack of

formal transposal of the Framework Decision into national law.

48 Commission, ‘Report From The Commission, on the basis of Article 18 of the Council Framework Decision of 15 March

2001 on the standing of victims in criminal proceedings’ COM (2004) 54 final/2.



Overall, it appeared that those Member States that have traditionally been more progressive with

regards to victims’ rights, have taken the Framework Decision as an opportunity to further advance.

Other Member States, that have traditionally been less progressive, have taken advantage of the

ambiguity of the Framework Decision to continue on the less progressive path.

II. 2009 Commission Report49

In 2009, a second report of the Commission was published. This report took into account the

implementation of the Framework Decision by 15 February 2008 in all 27 Member States. We should

keep in mind that, at this time, the Framework Decision contained exactly the same provisions and

wording as was the case when the first Commission report came out. The Member States were thus

still restricted to these specific provisions for implementation, although they could have drawn some

conclusions out from the 2004 Commission report.

The Commission started with pointing out that no Member State transposed the Framework Decision

in one single piece of national legislation. It mentioned the need to “prove” certain practices by

providing formal legal bases.50

The Commission repeatedly admits that some of the Framework

Decision’s provision were very general and therefore, the measures taken differ from one State to

the other.51

Overall, the implementation of the Framework Decision was still found to be

unsatisfactory. The Commission pointed out numerous omissions and complained that Member

States largely refer to existing practice prior to adoption of the Framework Decision. The report

concluded with: “The aim of harmonising legislation in the field of victims’ rights has not been

achieves owing to the wide disparity in national laws”. This shouldn’t come as a surprise, knowing

that Member States did not have an other option than to interpret the open provisions in the way

they thought was best.

III. 2009 Victim Support Europe Report52

After the Commission reports, the Commission acknowledged that more reliable data was needed to

make a full assessment of the Member States’ implementation. Therefore the Commission asked

Victims Support Europe to conduct a study aimed to provide the Commission with a fuller and more

comparative picture of the effects of the Framework Decision. This study led to a report “Project

Victims in Europe” was published in 2009 and showed to what extent the Member States had

complied with the Framework Decision.

First of all, a word on the objectives and the methodology of the project. It aimed to review the

implementation in a comprehensive fashion. Therefore tree components were revised: legal

implementation and organisational implementation and measures of impact. The review thus also

included material guidelines and protocols and the question on sufficient organisation capacity that

49 Commission, ‘Report From The Commission, Pursuant to Article 18 of the Council Framework Decision of 15 March 2001

on the standing of victims in criminal proceedings’ COM (2009) 166 final. 50

For example: art. 4(1) Member States refer to the existence of Ministry of Interior Guidelines and a Bill, but the

Commission is not satisfied, as these “do not appear to be binding” or “have not passed into law”. Art. 4(2): “FI has

integrated obligations in its national system, but provided no legal basis”. Art. 13: ES and FR refer to existing national

legislation without specifying articles, and it is consequently not possible to check transposition” “UK, PL and CZ note that

the state subsidies victim support organisations, but gives no legislative basis”. 51

For example: art. 2(1) and art. 6 52

APAV-INTERVICT Report Implementation of the EU Framework Decision on the standing of victims in the criminal

proceedings in the Member States of the European Union, Project on behalf of Victim Support Europe [2009]

< http://www.apav.pt/portal_eng/ >



match with the formal legal framework in the Member States. Moreover, the report assessed

whether victims throughout actually perceive that their treatment is respectful. The project collected

data through questionnaires. A legal questionnaire and an organisational implementation

questionnaire were sent to State and non-State experts. Most of the experts were from civil society,

public bodies, research sector, the judicial sector and criminal investigation.

As for the content, the project immediately started out with a rather negative conclusion: the

amount of respect afforded to victims and recognition of the harm they suffered still left much to be

desired. Victims were still not given an appropriate role in the criminal justice systems and did not

feel adequately recognised by the professional personnel involved in the criminal justice system. This

overall assessment was follow with a more detailed article-wise evaluation. The project adopted very

elaborated methods to review each article, two examples will illustrate this points.

• When evaluating the manner of questioning of victims, for example, a distinction was made

between the questioning of child-victims, questioning of victims with mental disabilities,

questioning of victims of sexual or domestic violence and questioning of cross-boarder victims. In

other words, the questions covered all victims who have specific needs when it comes to

questioning and not just victims in general.

• Secondly, the project introduced seven criteria to measure the right to protection (art.8). Three

of them related to protection of the victim against publicity, the other four related to protection

of the victim against intimidation or threat by the offender. This approach also illustrates an in-

depth analysis.

The project was very straight forward on the inconsistency between the observations based on legal

implementation and the observations based on organisational implementation. Concerning article 4,

for example, most jurisdiction had a general legal obligation to provide information to victims, which

is also assigned to a responsible agency. However, the results of the organisational implementation

survey showed that the respondents are more often than not negative concerning the access to

information. The organisational survey suggested that the promising results of the legal

implementation survey need to be qualified.

Both the access to and effects of legal assistance and advice left room for improvement. The

responsibility to reimburse expenses incurred during the criminal procedure was recognised in most

Member States, although in practice reimbursement left much to be desired as victims were

generally unaware of the possibilities of reimbursement. Member States seemed to endorse the

importance of protection measures, but they often applied more than one measure to make sure the

victim is protected against the offender. In the preponderance of the Member States, the

compensation procedures were found inadequate and especially the timeliness of compensation was

much to be desired. There was a wide range of mediation practices across the EU, but the Member

States could determine themselves for which offences they found (penal) mediation appropriate.

Cross-boarder victims appeared to be in the least favourable position, as the majority of the Member

States did not even offer victims the opportunity to report crimes committed abroad once they

return home. In a significant number of Member States, the right to be heard and to provide

evidence was made hard through Victim Impact Statements. This way victims could tell the court

what impact the crime has had on their lives. The availability of translators and interpreters was

guaranteed by law, but due to scarce and inefficient resources adequate communication safeguards

did not exist in practice. For protection of the victim from the media, a lot of Member States relied

on the media’s self-regulation and followed the code of ethics. The project pointed out the

importance of (preferable independent) national victim support organisations for ensuring the

protection of victims’ rights, but the majority of these organisations are insufficiently funded. More



training of personnel involved in proceedings is needed, but there are not enough resources to train

all personnel.

B. Critical remarks

In this part, some critical remarks concerning the Framework Decision in itself will be presented, and

secondly, also with regard to the implementation of the Framework Decision and the methods of

assessing the implementation.

I. Critical Remarks concerning the Framework Decision

1. Legal Basis

As explained in point B of section 1 of this chapter, the EU-level intervention was legitimised by

linking it to the position of cross-border victims and the freedom of persons to travel without

restrictions within the European common space. Although this might seem as a reasonable

explanation, a true legal basis for the adoption of the Framework Decision is missing, which does not

contribute to the democratic value of the instrument. A Framework Decision is a legally binding

instrument, so logically, it could have been expected that the Member States would be somehow

reluctant towards the use of it, since the instrument interferes in their national legislation. Keeping

this consideration in mind, the following question arises: why did the Member State allow the EU to

intervene in the field of victims’ rights with a Framework Decision, even though this intervention was

based on a doubtable legal basis?

The answer to this question is rather simple. When the idea of a Framework Decision arose, most

Member States were convinced that the adoption of the instrument would not bring along too many

obligations to adjust their national legislation. This confidence is explained by the mandates of the

people who negotiated the content of the Framework Decision. The Member States clearly gave

them the instructions to only agree with provisions that were more or less in compliance with the

national legislation of the State they represented. As a consequence, provisions that would oblige the

Member State to adjust their national legislation too much and that would therefore actually change

something in the field of victims’ rights protection, were declined. When the Member State noticed

that nevertheless, some provisions would oblige them to make some severe changes to their

national legislation, these provisions were simply amended or deleted in the draft versions.53

This

approach is perfectly illustrated by point 9 of the Recital: “The provisions of this Framework Decision

do not, however, impose an obligation on Member States to ensure that victims will be treated in a

manner equivalent to that of a party to proceedings.”

This regrettable attitude resulted in the vague formulation of the provisions contained in the

Framework Decision.54

2. Time pad & peculiar character of Framework Decision

As mentioned before, the Commission expected the Member States to implement the majority of

the Framework Decision within one year. It should be emphasised that this deadline was extremely

tight and therefore not very realistic. Especially bearing in mind the sometimes far-reaching

53 Marc S Groenhuijsen and Sanra Reynaers, ‘Het Europees Kaderbesluit inzake de status van het slachtoffer in de

strafprocedure: Implementatieperikelen en interpretatievragen’ (2006) 3 Panopticon 17-18. 54

See point 3: Vague Provisions



requirements of the Framework Decision. The earlier framework decisions adopted in the field of

criminal justice had a clearly demarcated content and allowed the Member States to meet the

implementation requirements with the introduction of a relatively small number of legislative

provision.55

The Framework Decision on the other hand, contains provisions that affect large portions

of the Code of Criminal Procedure of the Member States. It seems as if the drafters of the Framework

Decision did not fully realise what would be the impact of the imposed obligations. Adjustments

would have to be made on different levels, as the nature of the provisions differed widely. Some

demand a legislative action (article 7), while others require practical measures (article 8(3)).

Implementation thus demands a careful reflection on the entire criminal procedure. Bearing this in

mind, it might have been unwise to include such short implementation deadlines.56

In this regard, it should be added that the Commission states in its second implementation report

that “no Member State transposed the Framework Decision in a single piece of national legislation”.

This remark should be considered totally out of place, given the widely differing nature of the

provisions contained in the Framework Decision.

3. Vague provisions

The most obvious shortcoming of the Framework Decision is probably its ambiguous drafting.

Because basically all provisions were phrased in an “open” fashion, the Member States are offered

an enormous room of interpretation and they could only guess what measures they should take to

comply with the Framework Decision. Numerous examples can be found in the Framework Decision,

but I will restrict myself to a number of rather typical illustrations.

• Article 8 regulates the right to protection and instructs a suitable level of protection and

appropriate measures.

• Article 2(2) concerns “particularly vulnerable victims”. First of all, the Framework Decision does

not breathe a word about the criteria by which a victim may be considered particularly

vulnerable. It is completely up to the Member States’ discretion to define this concept. It

contains also a vague provision, as it mentions that the Member States should ensure a specific

treatment best suited to their circumstances.

• In accordance with article 14, suitable training of personnel should be encouraged.

Because it is totally unclear what exactly should be understood as a “suitable level of

protection/treatment/training”, “appropriate measures”, “ensuring” and “encouraging”, these

provisions inevitably give rise to interpretation issues.

• Reimbursement of victims’ expenses incurred due to participation in the criminal procedure is

regulated in article 7. The reimbursement should be regulated according to the applicable

national provisions. But what happens first of all, if no national provisions regulate the matter?

Secondly, the reimbursement-mechanisms foreseen in the different national legislation can vary

55 For example: Framework Decision regarding protection against euro-counterfeiting, Framework Decision on money

laundering, Framework Decision on combating trafficking in human beings. 56

Marc S Groenhuijsen and Sanra Reynaers, ‘Het Europees Kaderbesluit inzake de status van het slachtoffer in de




widely and this doesn’t really contribute to the purpose of approximating victims’ rights. It is also

unclear what expenses should be covered and to whom these should be charged.57

• Article 9 talks about “adequate compensation” to victims. It is unclear which types of damage

have to be compensated. Every Member State probably includes material and physical damage.

But what about moral damages? What about persons who were economically depending on the

victim, such as the wife or the children of the victim? Some Member States will probably

compensate these types of damages while other don not and as a consequence inequality

emerges. The article mentions that decisions have to be taken within a reasonable time limit,

once again an example of vagueness.

It is difficult, if not impossible for the Member States to give a uniform interpretation to the vague

provisions contained in the Framework Decision. It leaves them with no other option than to

implement the Framework Decision in a manner which they consider as most suitable to reach the

goals of the Framework Decision. The instrument offers a lot of leeway and therefore Member States

will inevitably interpret key concepts differently, which will have a subsequent impact on the practice

in countries. This will hamper the approximation of the victims’ position. In the worst case scenario,

the ambiguous drafting, resulting in a lack of concrete obligations, will keep a lot of Members States

from taking any measures at all. This was shown in the implementation reports.

This observation also explains the considerable differences of opinion between the Commission and

the Member States concerning the obligations deriving from the Framework Decision. The tone of

the Member States-reports was invariably self-satisfied. Member States were convinced that they

met the requirements of the Framework Decision, whereas the Commission evaluated the

compliance with the Framework Decision as extremely negative. This difference in attitude is not

surprisingly having regard to the wide margin of appreciation left to the Member States.58

4. The “partie civile”

Article 5, 6 and 7, which relate to safeguards for communication (translators), to legal assistance and

to reimbursement of expenses incurred due to participation in the criminal procedure, only apply to

victims having the status of witnesses or parties to the proceedings.

Some Member States’ legal system does not foresee the possibility for the injured party to adhere a

claim for compensation to the criminal justice procedure and thus not recognises the status of partie

civile. As a consequence, in these legal systems every victim who is not heard as a witness in the

court case is deprived of the three procedural rights mentioned.

The United Kingdom’s common law system for example, does not recognises a partie civile. It should

not come as a surprise that it was the UK that insisted on the particular phrasing of the articles 5 to 7,

expecting that this would diminish the need for substantial changes in its national legislation. The

potential financial burden of the provided rights might also have to do something with this restrictive

attitude of some Member States.59


Europees formeel strafrecht (Maklu 2002) 430. 58


Difference?’ [2009] European Journal of Crime, Criminal Law and Criminal Justice 58-59. 59

ibid 46.



This example can also be linked to my first remark: the formulation of articles 5 to 7 illustrate one of

the restrictions the Member States included in the Framework Decision to ensure their national

legislation wouldn’t need to be changed too much.

5. Lack of infringement possibilities

The Framework Decision is completely silent about the possibility for the Commission to bring

infringement proceedings against Member States or does not foresee any procedure for individuals’

redress concerning victims’ rights. If victims’ rights are not enforceable or if the repercussions for a

failure to implement are weak, legal practitioners have less incentive to apply victim measures. In

other words, this weakness is inevitably reflected in a lower compliance rate.

I believe it is unrealistic to expect victims to rely exclusively on applications to national courts. These

take a considerable amount of time, effort and money which is likely to reduce the benefit of any

judgement. For this reason it might have been an added value to include a procedure by which

victims could actually enforce their rights.

6. Hidden agenda?

It seems as if the Framework Decision focuses mainly on ensuring cooperation by the victim rather

than looking out for protecting the victim. The provisions aiming at enabling the injured party to

participation in the proceedings, are very detailed and incisive whereas the provisions concerning the

support of the victim are much more vague.

A separate article was included to ensure the victims’ right to be heard, to provide information and

to supply evidence (article 3). This article is pretty straight-forward and does not leave much room

for interpretation. Conversely, the Framework Decision talks about a suitable level of protection and

appropriate measures if necessary (article 8), promoting the involvement of victim support systems

(article 13) and encouraging the training of professionals (article 14). The provision concerning

compensation (article 9) is also filled with unclearness, talking about a decision within reasonable

time limits on compensation, appropriate measures to encourage the offender to provide adequate

compensation.

The way in which these provisions are formulated, does not create the most efficient framework to

prevent secondary victimisation and to safeguard the rights of the individual. The central concern

seems to be quite the opposite: ensuring law enforcement. In other words, the Framework Decision

focuses on what the victim could do for the system, rather than on what the system could do for the

victim.60

This observation can once again be linked to my first remark. It is very plausible that the Council

insisted on certain vague formulations to ensure the obligations on the Member States to adapt their

national legislation were kept to a minimum. In addition, this observations proves that the position

of the victim in criminal proceedings is still not considered a priority in policy-making, whereas law

enforcement, prosecuting the offender and defending society is.

60 Irene Wieczorek, ‘The New Proposal on Victims’ Rights: Law Enforcement or Safeguard for the Rights of the Individual?’

(2011) 2 New Journal of European Criminal Law 344.



II. Critical remarks concerning the implementation reports

In reviewing the implementation reports, a distinction is made between the Commission reports and

the Victim Support Europe Report.

The Commission reports

1. Value of the written reports

In order to allow the Commission to draft its implementation report, the Member States had to

forward written reports to the Commission in which they had to refer to the text of the provisions

enacting into national law the requirements laid down by the Framework Decision.

These Member States reports are written by the officials responsible for the preparation and

execution of the victims’ rights policy. It is in their best interest to get a positive evaluation of the

Commission. For this reason, it seems unlikely that these reports will be completely in accordance

with the actual situation in the Member States, as flaws and shortcomings in the national

implementation level are probably concealed in the reports. It might have been more representative

to have an independent entity evaluate the national situation.

In addition, the Commission does no have the option to verify the veracity of these reports neither

can it request follow up information.61

The Commission is thus obliged to rely exclusively on the

literal text of the formal legislative provisions supplied by the Member States.

This way, an important part of possible compliance with the Framework Decision is overlooked. A lot

of Member State don not literally transpose the provisions in a formal legislative basis, but

implement them by way of practical adjustments.62

The practical measures would have shed

additional light on the findings of the legal implementation. For this purpose, the Commission could

have consulted parties who are involved with victims, such as NGOs, stakeholders, legal

practitioners, police officers and so on. Their visions really could have been an added value for the

implementation assessment, as they are confronted with victims needs on a daily basis and they

therefore are suitable to evaluate the adequacy of protection in the Member States.63

2. Implementation = transposal

A recurring theme in the Commission’s reports is the apparent need to see transposal in solid formal

legal bases. As long as no national legislation clearly provides for the transposal of the Framework

Decision’s articles, the Commission considers the implementation level unsatisfactory.

“Implementation” is apparently regarded as synonymous with “transposal”. Although, form a

victims’ perspective, it might be wiser to evaluate “compliance”.64

The Commission’s approach is of

course influenced by the fact that it does no have the option to request follow up information in

addition to the information given in the Member State reports. Therefore, the Commission is almost

by necessity restricted to rely exclusively on the literal text of the legislative provisions supplied by

the Member States.

61 Groenhuijsen and A. Pemberton, ‘The EU framework Decision for Victims of Crime: Does Hard Law Make a Difference?’

[2009] European Journal of Crime, Criminal Law and Criminal Justice 49. 62

ibid. 63


strafprocedure: Implementatieperikelen en interpretatievragen’ (2006) 3 Panopticon 20. 64


Difference?’ [2009] European Journal of Crime, Criminal Law and Criminal Justice 49.



This obviously leads to a misjudging of the situation. In the written reports, Member States

repeatedly refer to the actual practice to show a certain right is guaranteed.65

Article 8(3) for

example requires the Member States to create separate waiting areas in courts of law. The UK is well

known to be the most advanced country in the EU in this respect. However, the UK does not have a

legal requirement in its national legislation that prescribes these separate waiting rooms.

Consequently, the Commission does not recognise the UK sufficiently implementing this

requirements.

An important part of the true victims’ rights-policy in the Member States is neglected. Instead of

focusing exclusively on “paper compliance”, it probably would have been more useful to also assess

the strategy, proper budgets, plans, aims, objectives, targets and timetables for an effective policy on

victims’ rights.66

With these standards in mind, one can only truly assess the position a victim has in a

Member State. The adoption of legislative and administrative provisions should not be a goal in itself,

but a means to achieve the goal.67

3. Additional rights

In its implementation report, the Commission repeatedly interprets certain rights in a way that does

not comply with the provisions in the Framework Decision. This observation can be demonstrated

with some examples.

• The Commission has a very specific opinion concerning article 2 that deals with particular

vulnerable victims. The Commission first of all admits that the Framework Decision did not define

the notion “particular vulnerable victims”, nor did the Framework Decision explain what exactly

should be understood as “specific treatment best suited to their circumstances”. Nevertheless,

the report points out that “Spain and Finland mentioned only the existence of financial support”

and that “France only protects information concerning the minors”. In other words, the

Commission gives the impression not to be satisfied with the notified measures of these Member

States.

• With regard to article 3, the Commission suggests that Member States should include a right for

the victim to ask that formalities needed to investigate the criminal acts are carried out.

According to the Commission, this right exists in a couple of Member States and should be

guaranteed in every Member State.

• The Commission is not satisfied with the measures taken by the Member States to meet the right

to receive information, in accordance with article 4. Posting the requisite information on a

website and creating information booklets is not sufficient. The Commission demands the

Member States to be proactive. Authorities need to actively provide information and transmit

information to victims of their own motion.

Although it might be true that the suggestions made by the Commission would in fact improve the

position of victims, it seems unreasonable to expect the Member States to know that these

obligations were included in the Framework Decision while it does not breathe a word about them.

65 For example: art. 4(2), art. 4(3), art. 8(1) and 8(2) and 8(3)

66 MS, Groenhuijsen and RM Letschert, ‘Reflections on the Development and Legal Status of Victims' Rights Instruments’ in

M.S. Groenhuijsen and R.M. Letschert (eds.), Compilation of international victims' rights instruments (Wolf Legal Publishers

2006) 10. 67





The Commission thus creates additional rights that were never mentioned in the Framework

Decision.

Victim Support Europe Report

The 2009 implementation report did not solely rely on written Member State-reports, but

constructed a questionnaire. It also made a clear distinction between its observation of

implementation at legislative level and at organisational level. The report formulates its own

recommendations concerning each article. This approach is constructive and does not only focus on

the shortcomings of the Member States. Moreover, the recommendations do not only consider the

adoption of formal legislation, but also emphasise the importance of practical efforts, such as

working protocols, funding, timetables and involvement of victim support organisations. Compared

with the implementation reports of the Commission, this report gives a much more elaborated view

on the state of affairs in the Member States. This improved way of evaluation of course does not

change the fact that the Framework Decision still has many flaws.

C. Conclusion

The critical analysis of the Framework Decision revealed the numerous flaws and shortcomings of the

instrument, which can not be seen as minor imperfections but influenced the successfulness of the

Framework Decision as a whole. These shortcomings can be explained by the calculated reservations

of the Council. Instead of drafting an instrument that could truly improve the position of victims in

criminal proceedings within the EU, the main concern of the Council was to reduce as much as

possible the obligations to adjust their national legislation as a result of implementing the

Framework Decision.

This attitude led to an instrument drafted in highly ambiguous terms. Because the provisions have

been drafted in such an ambiguous manner, it became clear that, even if transposed, they may not

make a difference to victims in practice. The most essential provisions of the Framework Decision

concentrate in the main on ensuring that the potential for victims to participate in Member States’

existing criminal procedures is effectively realised, without aiming to fundamentally challenge some

of the legal precepts around which such participation procedures are based. Apparently,

governments and the criminal justice establishment still need continual convincing of the importance

of victims’ rights in criminal justice proceedings.

As for the implementation reports, the sometimes doubtable methods used by the Commission to

assess the implementation level was highlighted. Luckily some improvements could be identified on

this matter in the Victim Support Europe Report.

It should be concluded that the Framework Decision is not qualitatively different from earlier soft-

law instruments. The inclusion of the first hard law instrument in the field of victims’ rights, thus

definitely cannot be equated with the adoption of effective law. The implementation reports have

shown that there is still a gap between improvements in law and policy and actual advances made in

practice on the position of victims. A large proportion of victims still do not receive the support they

need.



Chapter 2. Council Directive of 29 April 2004 relat ing to compensation to crime victims

In 2004, the Framework Decision was complemented by a Directive relating to compensation to

crime victims (hereafter: the Compensation Directive). The Framework Decision only briefly regulates

the compensation to crime victims and therefore the introduction of a more elaborated instrument

on the matter was needed.

The first section contains the descriptive part. First of all, the background and legal context of the

Compensation Directive will be discussed, followed by the legal basis and the directive as an

instrument. Next, this section considers the content of the Compensation Directive.

Section 2 includes the review of the Compensation Directive. Again, this review will be based on the

implementation level of the instrument, followed by some critical remarks. Subsequently, a

conclusion is formulated.

Section 1. Describing the Compensation Directive


I. Background

Within Europe, there was widespread recognition of the fact that crime victims, in many cases,

cannot obtain compensation from the offender, for example when the offender remains unknown or

cannot be successfully prosecuted or where the offender lacks the means to compensate the victim.

As recognition of this fact, over the years, the majority of the Member States introduced state

funded compensation schemes that allowed compensation to victims of crime for the injuries

suffered. However, these schemes display large differences between them in terms of the criteria

applicable for awarding state compensation. The types of losses that could be compensated varied

greatly and the principles for determining the amount of the compensation displayed large

differences between them also.

This lack of convergence between the compensation schemes in the Member States, creates

differences for the victim, depending on his place of residence or on where a crime is committed. As

a consequence, two persons becoming the victim of a crime, under identical circumstances but in

different Member States, received widely differing amounts in compensation for similar injuries, or

no compensation at all. Besides, a person falling victim to a crime in an other Member State than his

country of residence found it difficult to get access to state compensation in the first place, due to

language barriers and a lack of assistance in coping with the administrative procedures involved.

In other words, these differences created large discrepancies in terms of what crime victims can

actually get. The compensation was completely dependant on in which Member State the crime took

place, which was felt as unfair and arbitrary and not compatible with establishing the EU as an area

of freedom, security and justice for all.



II. Legal context

When discussing the legal context of the Compensation Directive we should definitely refer once

again to the 1983 European Convention on compensation to crime victims. This Convention

undoubtedly had an important impact in stimulating the introduction of state compensation

schemes. However, as demonstrated by the situation in the Member States, it had not reached all

the way in ensuring a complete coverage of all citizens of the EU. Additional action thus had to be

taken in insuring adequate compensation of crime victims.

The European Parliament has, already since the 1980s, shown a strong and continuous support for

improving compensation to crime victims. In 1989, the European Parliament issued a Resolution on

victims of violence68

. The resolution called on the Commission to draw up a draft directive requiring

the Member States to harmonise the amount of compensation for the victims of violent crimes at

the highest level, irrespective of the country of origin of the victim.

In 1999, after the adoption of the Vienna Action Plan, the Commission presented a Green Paper on

compensation to crime victims69

. The Green Paper made a further key contribution to securing State

compensation for crime victims, providing a full response to the Tampere Council recommendations.

It addressed possible objectives of victim compensation in the EU, and took into consideration the

findings of a comprehensive study70

of the position of crime victims in the EU, completed in 2000.

The study was followed up by a conference71

in Sweden, in October 2000. The Green Paper also

reflected upon an in-depth study72

focussing on the state compensation schemes in the Member

States, that was published by the Swedish Crime Victim and Support Authority in September 2001.

The objective of the Green Paper is to launch a consultation process on how to safeguard and

improve State compensation for crime victims in the EU. First of all, the Green Paper gives an

overview of European legislation in this field. Next, it focuses on the state compensation schemes in

operation in the Member States. It puts forward basic questions concerning the need for, and scope

of, action at EU level and it targets the adoption of minimum standards and the position of cross-

border victims.

The Green Paper was the subject of debate within the European institutions, at national level and

within organised civil society. The reactions confirmed by an overwhelming majority that the current

situation regarding compensation of crime victims in the EU was unsatisfactory. After all, the 2001

Framework Decision contains provisions on compensation by the offender, but does not otherwise

address the matter of compensation of crime victims.73

Therefore, additional action was needed to

achieve the objectives put forward in the Green Paper.

The European Parliament too firmly supported the Commission’s Green Paper, adopting a

resolution74

on the subject in 2002. The Economic and Social Committee, who also welcomed

68 European Parliament Resolution on victims of violence [1989] OJ C 256.

69 Commission ‘Green Paper on compensation to crime victims’ COM (2001) 536 final.

70 Anna Wergens, Crime victims in the European Union (Umeå, Brottsoffermyndigheten 2000).

71 The Crime Victim Compensation and Support Authority, ‘Conclusions – The Umeå expert meeting on compensation to

crime victims in the European Union’ Sweden, Umeå 2000. 72 Julia Mikaelsson and Anna Wergens, ‘Repairing the irreparable — State compensation to crime victims in the European

Union, The Crime Victim Compensation and Support Authority’, Sweden, Umeå 2001. 73

Framework Decision, art. 9 74

European Parliament resolution on the Commission Green Paper on compensation to crime victims [2002] OJ C 5-0016.



emphatically the Commission initiative in an opinion75

, proposed a Directive on the compensation of

victims of crime as the most appropriate instrument for action.

The result was the publication of the European Commission’s Proposal for the Compensation

Directive a year later.76

B. Directive: the instrument

A directive is a legislative act of the EU, which requires Member States to achieve a particular result

without dictating the means to actually accomplish that goal. According to article 249(3) TEC77

,

directives are binding as to the result to be achieved. Member States are free to decide on the form

and methods of implementation of the directive into national legislation. Directives are the best

means of harmonizing the legislation between Member States. Unimplemented or badly

implemented directives can have direct legal effect.

C. Legal basis

The objective pursued by the Compensation Directive falls within the overall scope of the provisions

of the Treaty establishing the European Community taken as a whole. Therefore, the legal basis for

the instrument is article 308 TEC78

. This article allows the Council to take the appropriate measures

to attain one of the objectives of the Union in case the Treaty has not provided the necessary

powers. It should be proven that action on EU level is necessary. The Court of Justice of the EU

confirmed the link between the free movement of persons and state compensation.79

The Court held

that the protection of victims of crime is a necessary corollary of the free movement of persons as

guaranteed by the Treaty. It is thus legitimised for the EU to operate in this field. Links to the other

freedoms guaranteed by the Treaty could however not be made. Since a sufficiently direct link

between protecting victims of crime and establishing the internal market could not be made, the

Compensation Directive falls outside the scope of the (then) TEU.

D. Content

The Compensation Directive wants to ensure that ‘crime victims in the European Union are entitled

to fair and appropriate compensation for the injuries they have suffered, regardless of where in the

European Community the crime was committed’. It essentially seeks to set minimum standards, not

to harmonize national laws.80

Article 1 describes the Compensation Directive’s main objective. Member States should guarantee

that the victim of a ‘violent intentional crime’ committed in a Member State in which the victim was

not habitually resident, has the right to submit an application for compensation in the Member State

of residence. The compensation would have to be paid by the ‘competent’ authority of the Member

State on whose territory the crime was committed. (article 2)

75 Opinion of the European Economic and Social Committee on the Proposal for a Council Directive on compensation to

crime victims COM (2002) 562 final. 76

Commission, ‘Proposal for a Council Directive on compensation to crime victims’ COM (2002) 562 final. 77 Article 288(3) TFEU. 78

Article 352 TFEU. 79

Case 186/87 Ian William Cowan v. Trésor public [1989] ECR 195. 80

“Harmonisation would not be appropriate in view of the current differences between the Member States, due to the

close connection to national laws on civil liability and tort and also due to socioeconomic discrepancies.” Proposal for a

Council Directive on Compensation to Crime Victims, COM (2002) 562 final 2002/0247 (CNS), Brussels, 16 October 2002,

p.10.



The Compensation Directive creates a system of cooperation between national authorities for the

transmission of applications for compensation in cross-border situations. Victims of a crime

committed outside their Member State of habitual residence can turn to an authority in their own

Member State (assisting authority) to submit the application and get help with practical and

administrative formalities. The authority in the Member State of habitual residence transmits the

application directly to the authority in the Member State where the crime was committed (deciding

authority), which is responsible for assessing the application and paying out the compensation.

Article 3 therefore instructs the Member States to establish “assisting authorities” and “deciding

authorities”.

The assisting authorities would be responsible for:

• Informing potential claimants about the compensation scheme (article 4);

• Assisting claimants in filling in the compensation application (article 5);

• Transmitting the application to the deciding authorities (article 6);

• Providing guidance to the applicant in case additional documents are required (article 8);

• Organizing a hearing if requested by the deciding authority (article 9).

The deciding authorities would be responsible for:

• Acknowledging the receipt of the application; Providing a contact person in charge of

handling the matter; Indicating an estimated time for the decision to be taken (article 7);

• Informing both the assisting authority and the claimant about the decision (article 10).81

Apart from the assisting and deciding authority, Member States would also have to establish Central

Contact Points that would facilitate the implementation of the Compensation Directive. (article 16)

Article 12 provides that access to compensation to victims of crimes in cross-border situations should

operate on the basis of Member States’ own pre-existing national compensation schemes. Such

schemes should guarantee ‘fair and appropriate compensation’ to victims. If a Member State does

not have a national scheme in place, they would be required to create a ‘compensation mechanism’,

as stated in point 7 of the Recital.

The Compensation Directive remains completely mute on the nature of the expenses eligible for

compensation. The interpretation of what compensation should be paid out to each victim is thus

left to Member States' discretion, provided that it is fair and appropriate.

In terms of management, the Compensation Directive stated that administrative formalities should

be kept to a minimum. (article 3(3)) The instrument provides for two standard forms that should be

used for transmission of applications and decisions. (article 14) Article 17 allows Member States to

introduce more favorable provisions for the benefit of victims of crime.

81 Commission, ‘Report From The Commission to the Council, the European Parliament and the European Economic and

Social Committee, on the application of Council Directive 2004/80/EC relating to compensation to crime victims’ COM

(2009) 170 final.



Section 2. Reviewing the Compensation Directive

A. Implementation

Article 18(1) instructed the Member States to comply with the Compensation Directive by 1 January

2006. As for setting up a national compensation scheme, in accordance with article 12(2), the date of

compliance was 1 July 2005. In line with article 19 of the Compensation Directive, the Commission

presented a Report on the Application of the Directive in 2009. In order to prepare the report, the

Commission requested a study on the application of the Compensation Directive (hereafter: the

study), which was prepared by a contractor, Matrix Knowledge Group.82

I. Matrix Report: Study on the application of the Compensation Directive

Sample survey: Implementation level

For the purpose of assessing the stage of implementation of the Compensation Directive in all EU

Member States, the study undertook a statistical and qualitative quota sample survey. Key contacts

for the survey existed out of assisting and deciding authorities, NGOs and claimants.

The survey highlighted some central observations. All Member States who had implemented the

Compensation Directive, had schemes in place allowing victims to submit an application for

compensation. All these Member States also set up responsible authorities and administrative

procedures, as prescribed in articles 2 and 3. The majority of the Member States also made

information available on measures and methods for informing the potential applicants, mostly

through the internet, leaflets and brochures.

Remarkable is the fact that claimants had a slightly different opinion on the effectiveness of the

Compensation Directive than the deciding and assisting authorities did. The latter were rather

positive on the operation of the current system. They were satisfied with the Central Contact Points,

the use of standard forms, languages and communications technology.

This is in sharp contrast with the experience of claimants, who experienced the process of applying

as too complicated and time-consuming. Language barriers, lack of information and legal advice were

rated as major problems. A lot of victims were not even informed about their right to compensation

in the first place. They did not know where to go or who to turn to for compensation.

As a consequence, it appeared that only a relatively small number of victims actually made use of the

option to apply cross-border for compensation. As for the victims that were actually granted a right

to compensation, a lot of them mentioned dissatisfaction over the adequacy of payment.

Similar observations were made by NGOs, who found that victims were often unaware of the

possibility of claiming for compensation. The application process in some Member States was

criticised as ineffective. Although they believed the Compensation Directive has helped define the

scheme and procedures for authorities to follow and speeded up the process for claiming and

82 Matrix Insight: ANALYTICAL REPORT of the Application of Directive 2001/80/EC relating to compensation to crime victims,

16.10.2008, The application of Directive 2004/80/EC relating to compensation to crime victims EMPIRICAL REPORT,

12.12.2008, and Analysis of the application of Directive 2004/80/EC relating to compensation to crime victims SYNTHESIS

REPORT, 12.12.2008.

< http://ec.europa.eu/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm >.



awarding compensation, the respondents thought that there were still major problems of process,

information and communication to overcome.

Online questionnaire: Interpretation of key concepts

A specific problematic issue was the interpretation of phrases such as ‘violent intentional crimes’,

‘compensation’ and ‘fair and appropriate compensation’. As the Compensation Directive only

provided for minimum standards, the scope of these phrases were left to the appreciation of the

Member States. Key elements of compensation such as what offences to compensate, what injuries

to compensate, who (not) to compensate and at what level to compensate could therefore differ

among the Member States. As a consequence there was often a lack of clarity and transparency

concerning key elements of the different national compensation schemes, which off course is a

major obstacle in the cross-border cooperation process between the different authorities.

The study tried to give an overview of the different interpretations given to these core questions

throughout the Member States. For this purpose, it used an online questionnaire, resulting in these

main findings.

All Member States provided compensation for victims of intentional crimes against the person,

whereby they clearly met the proposed minimum condition. There was less agreement in the case of

the relatives of victims of intentional crimes against the person that result in the victim’s death,

although the number of schemes that indeed covered fatal injury is 2/1 compared with those that do

not. A majority of Member States excluded unintentional injuries, whether to victims or their

relatives. It is clear that the preponderance of Member States provided compensation for both

personal injury and death. There was also a high consensus on the inclusion of disease and mental

injury within schemes.

All but two deciding authorities imposed a time limit for the completion and submission of a claim for

compensation, which most of the times could be extended in certain circumstances (the medical

consequences of the crime on the victim, for example). In contrast, a majority of deciding authorities

did not impose any financial minimum as a threshold to compensation, and in the case of those that

did, the minimum ranges widely.

In basically all schemes, victims who in some way contribute to the circumstances in which they were

injured could have their compensation reduced or their claim rejected altogether. By contrast,

victims who have a criminal record could for that reason not be precluded (in whole or in part) from

compensation in most of the schemes.

As regards the requirement of ‘fair and appropriate’ compensation, the respondents claimed that

their schemes did meet this standard: equity as between the law’s treatment of different groups of

victims was a common response.

Respondents were asked a number of questions concerning the assessment and scope of the

compensation that their schemes provide for. For a majority of respondents the assessment of

compensation was based on their national law of damages for personal injury or death. Some

schemes operates a tariff that fixes a financial value to specified injuries.

In addition to non-pecuniary loss, the vast majority of schemes provided compensation for pecuniary

loss arising from the injury (loss of earnings, for example), and most provided compensation for

longer term disabilities. Similarly, the preponderance of schemes provided compensation to

dependants both for non-pecuniary (bereavement) and pecuniary loss (loss of dependency). The



majority of the Member States adopted the view that a scheme might impose an upper limit on the

total of compensation in any case.

The survey revealed that claimants might benefit from two other sources of compensation. The first

of these is recovery from the offender. The second source is collateral benefits that may accrue from

the state, the claimant’s employer or own insurance policies.

II. Commission report

The Commission used the findings of the study to formulate its own recommendations in it’s report.

The report covers the period of 1 January 200683

to 31 December 2008.

The Commission found that the Member States should ensure that more information on the

Compensation Directive and on national compensation schemes is provided to citizens. Furthermore,

the language requirements of the Compensation Directive should be respected in order to ensure

the most efficient processes for claimants. Finally, clarity and transparency concerning key elements

of national compensation schemes is important. This concerns in particular the questions of which

offences are included in the schemes and which injuries are covered by them.

B. Critical remarks

In the following point, the paper will shed some light on the most problematic issues of the

Compensation Directive and its application in the Member States. The Commission’s implementation

report will also be reviewed.

I. Critical remarks concerning the Compensation Directive

1. Vague provisions

The Compensation Directive is limited to the minimum standards required to achieve the objectives

pursued and does not exceed what is necessary to this end. These so-called minimum standards are

often formulated in an open wording and are therefore pretty vague. To a certain level, the Member

States can rely on the Commission’s Green Paper, which contains a number of questions on the key

issues concerning compensation schemes. Nevertheless, the vague formulation of certain provisions

makes it challenging to achieve the objectives of the Compensation Directive.

“Violent intentional crimes”

Article 1 instructs Member States to ensure a right to submit an application for compensation in case

of “violent intentional crime”.

(a) Violent crimes

Certain offences, such as homicide and serious assaults against a person, will present no definitional

issues. With regard to other offences, the qualification as “violent” seems less obvious. Moreover, in

some national law systems offences such as theft, for example, in itself do not qualify as a violent

crime, but can become violent under certain conditions or as an aggravating circumstance. It is also

unclear whether the assessment of a crime as “violent” should be based on the nature of the crime,

the instrument used to commit the crime, the harm done to the victim or the cumulating of all

83 According to article 18(1) of the Directive, the Member States were to implement the Directive by 1 January 2006 at the

latest.



reprehensive criteria. A crucial question that arises in this context, is whether the national

compensation schemes should leave the phrase ‘violent crime’ undefined or whether they should

specify exactly the offences to be covered. By including such lists of offences, problems of over- and

under-inclusion can arise. On the other hand, not including lists of offences also seems problematic,

as open phrases can result in uncertain application.

(b) Intentional crimes

‘Intentional crime’ shall also be defined in accordance with the law of the Member State where the

crime was committed. The least to say is that it is unclear how exactly ‘intentionally’ should be

interpreted.

First of all, the express use of the qualification ‘intentional’ suggests that offences committed

recklessly will not be included. It may be clear in many cases that the attack was deliberate, but the

assessment of “intentional” becomes a whole lot more complicated where the offender is not

caught. In such cases, it may well prove impossible to assess, on a balance of probabilities, whether

he acted intentionally.

A couple of specific circumstances give rise to questions on the limits of the compensation schemes.

For example, accidental injuries sustained by rescuers who go to the aid of another person under

attack or to the police in the execution of their duties. What limits on such accidental injury should

the compensation scheme impose? Moreover, should the fact that the offender cannot be convicted

because of his mental condition, or is below the age of criminal responsibility, be relevant in

assessing the intentionality aspect?

It is not a surprise that the enforcement of the distinction between intentional and unintentional

crime is likely to prove very difficult for the claims agency. As for certain sensitive crimes, it might

also be politically difficult to defend.

‘Fair and appropriate compensation’

The interpretation of the phrase ‘fair and appropriate compensation” is left to the Member States.

Underlying the interpretation of this requirement lies a yet more profound question concerning the

philosophy of a compensation scheme, to which many different, and conflicting, answers may be

given. A couple of potential uncertainties can be mentioned.

First of all, it is unclear what purpose a “fair and appropriate compensation" should serve. Does it

aim to achieve what in effect would be the same result in a civil action? Or does it serve only some

symbolic purpose and to recognise the injury? Moreover, what should be understood as ‘fair’ and

compared to whom should the compensation be fair? Should the financial position of the claimants

be taken into account when assessing a ‘fair and appropriate’ compensation. In other words, what is

the relevance of their own capacity to meet the costs of the injury or in the case of a fatality, the loss

of dependency?

The problematic interpretation of the phrase ‘fair and appropriate’ is also illustrated by the

questionnaire. Member States were asked whether they considered their compensation schemes to

be “fair and appropriate” and if so, why. Of the seventeen Member States who answered the

question, sixteen said ‘yes’, yet there was a range of different reasons given as to why their schemes

should be considered as “fair and appropriate”. Some Member States considered their schemes as

fair because they provided the same levels of compensation for all claimants, some mentioned the

fact that claimants are fully compensated for their injuries without limit. This illustrates the different

interpretations of the notion “fair and appropriate”



‘As quickly as possible/ as soon as possible’.

Article 6, 7, 8 and 10 encourage the assisting and deciding authorities to transmit the application,

send (supplementary) information and send the decision on the application for compensation “as

quickly as possible” and “as soon as possible”. Anyone could have predicted that these formulations

would inject uncertainty. Claimants and officials can interpret them very differently, to their own

best interest, and this of course inevitably sows the seeds of conflict into the cooperation system.

The survey respondents’ reaction towards questions that sought to elicit information especially

about the time dimension of settling applications, prove this point. These questions knew a

remarkably high and heavy rejection rate, which illustrate that in practice there is no consensus on

“handling applications as quickly as possible”.

In the survey, NGOs indeed reported application processes that took up to 3-4 years, which obviously

is not a reasonable period of time and certainly does not comply with handling matters “as soon as

possible”.

It is to be regretted that the provisions on handling applications were not stipulated in a more

straight-forward way, for example by including concrete and compulsory timetables for settling

application. Especially since it would be in the best interest for the victim to receive a decision on the

application for compensation within a reasonable and fixed amount of time. The sooner the

application for compensation is handled with, the sooner the victim can move on with his life.

Moreover, it is important for the victim to know whether he can rely on compensation, since the

denying of it can have great impact on his financial situation.

Conclusion

To summarise my point of view, there is no ‘right’ or universally accepted answer to most of the core

questions a Member State needs to answer as a matter of policy in order to create a compensation

scheme. More concrete minimum standards should have been defined in terms of both content of

the Compensation Directive and timescales.

2. Greater clarity about the compensation schemes

The Compensation Directive required Member States to set up schemes facilitating access to

compensation for victims of crime in cross-border situations, based on their own national

compensation schemes. As mentioned before, the interpretation of key concepts of the national

schemes differs widely. As a consequence, many employees of the deciding and assisting authorities

do not have sufficient knowledge of the different cross-border victim compensation schemes and

associated processes. Some Member States’ schemes know disproportionate formalities and

procedures. Therefore, several deciding authorities try to avoid cross border cases as they consider

these too problematic.

Knowledge and clarity about the different schemes, could be improved by being straight forward as

to what offences are included within the different schemes. In addition, the injuries covered should

be defined as straight forward as possible, as should the notion of ‘eligible victims’. Moreover, there

should be a clear-cut interpretation of key eligibility criteria, such as time limits for applications,

financial minima, reporting to and co-operating with the authorities and the relevance of the victim’s

own conduct in the crime in which the injury was sustained.



3. Assisting and deciding authorities: developing an effectively integrated system

The exact responsibilities of assisting and deciding authorities and the specifications for their

cooperation are not clearly defined in the Compensation Directive. As a consequence, it appears that

in practice the prescribed assisting and deciding authority are in most of the Member States the

same officials playing different roles, sometimes in a central organisational context, sometimes in

decentralised units.

So as to reduce bureaucracy and make it easier for citizens of the Member States to exercise the

rights provided for in the Compensation Directive, a simplification of the current structure is needed.

Particular reference must be made to the law applicable in each case and the relevant distinction

between the law of the victim's State of residence and the law of the Member State in which the

crime was committed.

Another non deniable problem on the level of the deciding and assisting authorities is the language

issue. Many of the authorities’ employees do not have sufficient language skills and article 11 does

not provide a satisfactory solution to this problem. Therefore, further action needs to be taken. As

the Matrix study suggests, it might be a good idea to translate standard forms and derivations from

them requested by Member States into all EU languages and make them available as a download on

the internet. In addition, the issue of translation costs must be addressed.

Overall, I firmly support the idea of creating an overarching European forum for national victim

compensation schemes and their NGO stakeholders. Such forum could improve integration and

foster development by ensuring a suitably restricted professional service. It could provide

information to the Member States and to claimants on EU level information and requirements,

details of national schemes, details of central contact points, standard forms and translation services.

It could also be helpful to provide victims with a point of contact to ask for advice in throughout the

procedure.

II. Critical remarks concerning the implementation report

Overall, the approach adopted by the Commission to assess the implementation of the

Compensation Directive is a huge improvement compared to the Commission reports on the

implementation of the Framework Decision. As mentioned before, the Matrix study designed a

questionnaire in order to collect a considerable amount of detailed information from the Member

States and from a range of stakeholders involved in the protection of victims’ rights. Although this

methodology should in itself guarantee an in depth and comprehensive evaluation of the application

of the Compensation Directive, some critical observations still have to be highlighted.

1. Lack of accurate data

The study suffered from a lack of accurate data because of operational difficulties with response

rates.

First and foremost, the survey was restricted to a small number of official contact points in each

Member State providing information from a single perspective. Even though it was the surveys initial

aim, NGOs were ultimately never used as a means of contacting claimants. Moreover, in the majority

of States there was no proper distinction made between deciding and assisting authority.



Furthermore, there was an unusually high level of non-response. Questionnaire respondents chose

to complete certain parts of the questionnaires, but rejected other parts of the questionnaire. Non-

response to the questionnaire was not a random phenomenon, but was purposeful and selective.

The explanation of the high level of non-response is twofold.

First of all, it seems plausible that the questionnaire was over-structured for the majority of schemes

at that stage in their development. The willingness of national officials to invest in detailed research

procedures at this point in the development of cross-border victim compensation schemes was thus

overestimated. Many respondents might have felt that the level of detail being asked of them was

disproportionate and exceeded their capacity.

In addition, given the open formulation of certain key provisions and, as a consequence, the wide

variety of interpretations given to them in the Member States, it might be basically impossible to

prepare questions which have meaning and relevance across all the jurisdictions involved. Some

questions might not apply or appear to be too detailed to certain compensation schemes. The fairly

high level of non-response is therefore to be expected.

Some questions, for example about the efficiency and effectiveness of communication, knew more

non-response rate then others.

Information for traveller’s pre- and post- victimisation

In the context of lack of data, I would like to shine a light on a specific issue, namely the striking high

rejection rates observed for the touristic areas of the EU. There are frequently complications in these

areas, as tourists run a high risk of becoming the victims of criminal events. They spend more time

out in public, they present an obvious target for criminals and they often antagonise and provoke

local residents by their behaviour.

Especially in the touristic areas of the EU, the implementation of the Compensation Directive may

therefore impose onerous and time-consuming efforts. Therefore, they probably did not comply with

the Compensation Directive as they should have done and this explains the reluctance of the

respondents from touristic areas in the EU.

These areas definitely should be encouraged to comply with the Compensation Directive and to

invest in their national schemes. Also tourists should be given information on cross- border

compensation schemes.

C. Conclusion

The objective of the Compensation Directive was to introduce minimum standards in order to ensure

that all crime victims across Europe are entitled to fair and appropriate compensation. The critical

analysis of the instrument has shown that the instrument failed to provide clear-cut definition of key

concepts, for example regarding the eligibility criteria, time-limits, budgetary schemes and the

minimum level of compensation.

The online questionnaire demonstrated the consequence: there is no unanimity on how the most

essential elements of compensation schemes should be interpreted and Member States therefore

interpret them in accordance with their own national legislation. This led to the setting up of national

compensation schemes which still differ considerably from one another. The lack of clarity and

transparency is thus maintained as a major obstacle in the cross-border cooperation process. For this

reason, victims who were victimised in another Member State than their State of residence are still



subject to different treatment, depending on the victims’ State of residence or on the Member State

in which the crime was committed.

The sample survey showed that in most of the cases, cross-border victims are not informed about

their right to compensation. In the few cases where these victims actually make use of their right to

apply for compensation, the procedure turns out to be time-consuming and complex. They also

suffer from language-barriers and inadequate payment mechanisms.

Even with the adoption of a specific compensation instrument, victims within the EU are not

guaranteed an equal level of compensation. The added value of the Compensation Directive is

therefore questionable. The instrument should be considered as a failed attempt to adequately and

consistently regulate the right to compensation for all victims across Europe. Once again, it should be

emphasised that the adoption of a hard law instrument does not necessarily guarantees an effective

response to victims’ needs.

When the EU issued the Compensation Directive in 2004, its general objective was for victims to

receive the same right to compensation regardless of which Member State the crime has taken place

in. It may be that a Compensation Directive that involves enforced collaboration between random

pairs of Member States, is much more challenging than may appear at first sight. The challenge may

even increase whit each Member State having a different culture, criminal justice system,

administrative structures and investment in social protection to contend with.



PART 3. VICTIMS’ RIGHTS IN CRIMINAL MATTERS POST LISBON

Due to the poor and inconsistent transposition of the available EU victims’ rights instruments pre

Lisbon, namely the Framework Decision and the Compensation Directive, the existing rules turned

out to be largely insufficient. As a consequence, serious problems as well as significant inefficiencies

remained. The role and needs of victims in criminal proceedings were still generally not sufficiently

met and the level of victims’ rights protection continued to differ significantly form Member State to

Member State. Focus was still primarily on security and enforcement. This problematic observation

led to the EU putting victims again at the heart of the criminal justice agenda of the EU. The Treaty of

Lisbon, together with its Stockholm Programme, was the first step towards this new area of victims’

rights. The call for action embedded in these instruments led to the introduction of a comprehensive

Victims’ Rights Package. In the following chapter 1, these elements will be elaborated.

Chapter 1. Legal context post Lisbon

Section 1. Introduction of a legal basis

With the Treaty of Lisbon84

, a clear legal basis was introduced for the EU to act in the field of victims’

rights.

Article 82 (2) TFEU provides the following:

To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police

and judicial cooperation in criminal matters having a cross-border dimension, the European

Parliament and the Council may, by means of directives adopted in accordance with the ordinary

legislative procedure, establish minimum rules. Such rules shall take into account the differences

between the legal traditions and systems of the Member States.

They shall concern:

(a) mutual admissibility of evidence between Member States;

(b) the rights of individuals in criminal procedure;

(c) the rights of victims of crime;

(d) any other specific aspects of criminal procedure which the Council has identified in

advance by a decision; for the adoption of such a decision, the Council shall act unanimously

after obtaining the consent of the European Parliament.

Adoption of the minimum rules referred to in this paragraph shall not prevent Member States from

maintaining or introducing a higher level of protection for individuals.

84 Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union [2010]

OJ C 83/01. of 30 March 2010.



A first point of attention goes to some important substantive limitations contained in the article. The

legal evidence measures taken, shall only concern the following aspects: mutual admissibility of

between Member States, the right of individuals in criminal procedure and the rights of victims of

crime. Furthermore, the provision includes some procedural limitations. The provision can only be

applied to the extend necessary to facilitate mutual recognition and police and criminal law

cooperation. Next, it must have a cross-border dimension. Third, the differences between the legal

traditions and systems of the Member States must be taken into account. And finally, only minimum

rules can be adopted.

As regards civil aspects, article 81 TFEU provides the legal base to take measures aimed at ensuring

the mutual recognition and enforcement between Member States of judgments and of decisions in

extrajudicial cases and affective access to justice. It also foresees the adoption of measures for the

approximation of the laws and regulations of the Member States.

Section 2. The Stockholm Programme 85 & its Action Plan 86

First of all, both the European Parliament and the European Council have called for action in the area

of victims’ rights.

In May 2009 the European Parliament adopted a Recommendation on the development of an EU

criminal justice area87

, in which it called upon the Council to restart working on safeguarding

fundamental rights and to notably adopt without delay a comprehensive legal framework offering

victims of crime the widest protection, including adequate compensation and witness protection,

especially in organised crime cases.

On account of its Justice and Home Affairs meeting in October 2009, the Council adopted a

Conclusions on a strategy to ensure fulfilment of the rights of and improve support to persons who

fall victim to crime in the European Union, in which it emphasised that ensuring fulfilment of the

rights of and improving support to persons who fall victim of crime throughout the EU should be

given higher priority. It considers that, to that end, there is a need to agree on a common strategy,

which will guide future work in this area, while taking into account the different legal systems of

Member States and the roles of victims in those systems.

In line with the Recommendation of the European Parliament and the Conclusions of the Council, a

new multi-annual programme in the Area of Freedom, Security and Justice for the period 2010-2014,

the so-called Stockholm Programme, was approved by the Council in December 2009. This

Programme follows the previous Tampere (October 1999) and The Hague Programmes (November

2004).

In order to ensure an integrated and coordinated approach to victims, the Council called in the

Stockholm Programme on the Commission and the Member States to:

85 European Council The Stockholm Programme – An open and secure Europe serving and protecting citizens [2009] OJ C

115/01 86

Commission, ‘Action Plan Implementing the Stockholm Programme’ COM (2010) 171 final. 87

European Parliament Resolution on the development of a European Union criminal justice area [2009]

< http://www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2009-0386&language=EN >.



• examine how to improve legislation and practical support measures for the protection of

victims and to improve the implementation of existing instruments,

• offer better support to victims in other ways, possibly through existing European

networks that provide practical help, and put forward proposals to that end,

• examine the opportunity of making one comprehensive legal instrument on the

protection of victims, by joining together the 2004 Council Directive relating to

compensation to crime victims and 2001 Council Framework Decision on the standing of

victims in criminal proceedings, on the basis of an evaluation of these two instruments.

Moreover, increased use of the financing programmes should be made in accordance with their

respective legal frameworks.88

On 20 April 2010 the Commission adopted a Communication on an Action Plan implementing the

Stockholm Programme, which contains concrete actions and clear timetables to meet current and

future challenges. The Commission also identified strategic priorities in its Work Programme for

2011.89

Action Plan

In its Action Plan, the Commission pointed out the current differences in the guarantees provided to

victims of crime and terrorism across the 27 Member States and the need to analyse and reduce

those differences, with a view to increasing protection by all means available.90

Moreover, effective

prosecution and conviction should be as important as attending to the needs of the victims of these

crimes and reducing the demand for services from potential victims.91

Work Programme

The Commission listed the rights of and support to victims of crime as a strategic initiative in its 2011

Work Programme. It states that it will propose a Directive on the rights of victims of crime, to help

ensure access to sufficient legal assistance, justice and protection for citizens across all Member

States. In order to enhance mutual trust between judicial authorities and citizens, the Commission

will also continue to make legislative proposals for introducing minimum standards for procedural in

criminal proceedings, notably in the field of legal assistance and legal aid.92

Section 3. The Victims’ Rights Package

On 18 May 2011, following the Stockholm Programme and its Action Plan, the Commission presented

a Communication on Strengthening Victims’ Rights in the EU93

in which it launched a package of

proposals expanding the existing measures on victims’ rights adopted at EU level. The proposals

seeks to provide clear and concrete rights for victims of crime, and to ensure recognition, respect,

protection, support and access to justice no matter where in the EU they come from or live.

88 The Stockholm Programme - p.10.

89 Commission ‘Communication form the Commission to the European Parliament, the Council, the Economic and Social

Committee and the Committee of the Region - Commission Work Programme’ COM (2010) 623 final. 90

Action Plan - p.3. 91

Action Plan - p.7. 92

Work Programme - p.7. 93

Commission, ‘Communication From the Commission to the European Parliament, the Council, the Economic and Social

Committee and the Committee of the Regions, Strengthening victims' rights in the EU’ COM (2011) 274 final.



While building on and complementing existing instruments, the Commission’s proposal aims to

strengthen the legal framework by introducing directly binding and properly enforceable legal

instruments. The main objective is to counter the victims’ rights instruments by use of languages

which codifies the obligations on Member States more clearly.94

This way, victims should be given

the same non-discriminatory minimum level of rights, services and access to justice, everywhere in

the EU.

This section offers an outline of the preparatory work that was carried out for the drafting of the

Victims’ Rights Package. Next, it will highlight the legal elements and the Roadmap supporting the

Package.

A. Preparatory work

Together with the Victims’ Rights Package, the Commission presented its Working Paper on an

Impact Assessment95

. The Commission started out with ensuring that “it followed its standards on

consultations” when developing the Minimum Standards Directive. These “standards” are to be

understood as the consultation of experts from different backgrounds, such as governments, law

enforcement agencies, NGOs, international organisations and universities. These parties all got the

opportunity to reflect their visions on the idea of creating a new victims’ rights instrument.

To support the preparation of the Impact Assessment, the Commission contracted an external

study96

. The external study, contracted by Matrix Insight included a multi-method research approach,

including extensive desk research, expert consultation (interviews, workshop), Member State

consultation (online survey, telephone interviews with competent authorities), validation (expert

peer review), and economic modelling of costs and benefits. The study assessed the quality of

evidence around costs and benefits of potential policy options pertinent to the Commission’s Impact

Assessment. Additionally, the results of two surveys were used to prepare the Impact Assessment.

During the preparation process of the Impact Assessment, the Commission also instructed a public

consultation. This way, stakeholders received the opportunity to present their views on existing

difficulties and suggestions for concrete actions that could be developed at EU level. The public

consultation was organised by Matrix Insight by way of a consultation questionnaire: Taking Action

on the Rights, Support and Protection of Victims of Crime and Violence97

. The majority of respondents

were NGOs/think tanks (including victim support organisations), citizens and the judiciary. Law

enforcement parties, such as police officers, national governments and academics were also

consulted, but their contribution was more restricted.

In brief, the consultation process highlighted the importance of action in the following areas: the

victims’ right to privacy must be protected, they should be provided with some type of immediate

assistance and translation and interpretation are crucial to ensure that victims fully understand their

rights and the information they are given. Additionally, minimum standards should apply to

Restorative Justice proceedings. The importance of Victim Support Organisations for providing

94 Neil Paterson and Gert Vermeulen, ‘Developing a Framework For The Legal Rights of Victims & Witnesses - What Can

European Institutions & The International Criminal Court Learn From Each Other?’ in M Cools and others (eds), Readings on

Criminal Justice, Criminal Law & Policing (Maklu 2009) 155. 95 Commission Staff Working Paper – Impact Assessment [2011] < http://eur-

lex.europa.eu/LexUriServ/LexUriServ.do?uri=SEC:2011:0580:FIN:EN:PDF >. 96 Matrix Insight, A Study for an Impact Assessment on Ways of Improving the Support, Protection and Rights of Victims

across Europe [2010] < http://ec.europa.eu/justice/criminal/files/matrix_2010_ia_final_report_en.pdf >. 97

Matrix Insight, ‘Analysis of Public Consultation Responses: Taking Action on the Rights, Support and Protection of Victims

of Crime and Violence’.



effective services to victims is emphasised. They need continuous financial assistance and the

importance of their work must be recognised by national governments. The Report stresses the need

for cooperation and best practice sharing between all organisations involved with victims within a

Member State and across the EU. In doing this, a balance should be sought between victims’ rights

and defendant’s rights during criminal proceedings. The results of all of the various consultations

have been used extensively for the problem definition and the identification and analysis of policy

options.

The Impact assessment: the results

In the final Commission Impact Assessment, it was concluded that the “medium prescriptive option”

would be the most desirable. This option is designed to strengthen the support service for victims

and improve practices in restorative justice and victim compensation. Victim support services are

well placed to accompany victims throughout all stages during the aftermath of the crime and

provide emotional, practical and material support.

It cannot be denied that the Commission pulled out all the stops to prepare its Victims’ Rights

Package. More or less all interested parties were asked to share their views. The Commission did not

restrict itself to basic research, but introduced studies on different levels, concerning different

elements. Compared with the partial, shallow and out of order preparatory work of the legal

instruments discussed in Part 2 of the paper, the current approach is definitely an improvement. It is

to be seen, whether this advanced approach will actually make a difference when it comes to the

adequacy of the legal instruments contained in the Package.

B. Legal elements

I. Directive establishing minimum standards on the rights, support and protection of victims of

crime

First and foremost, the Commission introduced a Proposal for a Directive establishing minimum

standards on the rights, support and protection of victims of crime (hereafter: Minimum Standards

Directive). Initially, and as prescribed in the Stockholm Programme, the Commission’s intention was

to combine and update the provisions of both the 2001 Framework Decision and the 2004

Compensation Directive within one comprehensive legally binding new directive. Eventually, it was

decided that the Minimum Standards Directive would replace only the Framework Decision. The

Commission assures it will review the Compensation Directive in the next phase of action on victims’

rights.98

The Minimum Standards Directive will ensure that victims are treated with respect and that special

needs for vulnerable victims are properly addressed. Victims should receive the support they need,

relevant and understandable information and protection throughout criminal investigations and

court proceedings. Moreover, they should be able to participation in proceedings.99

II. Regulation on mutual recognition of protection measures in civil matters

In addition, the Victims’ Rights Package includes a new mutual recognition mechanism designed to

help protect victims of violence from any further harm by their attacker. It wants to ensure that

victims, or potential victims, who benefit from a protection measure in their Member State of

98 Commission Communication - p.9.

99 Commission Communication - p.8.



residence, do not lose this protection when they travel or move to another EU country. To this end,

the Commission presented a Proposal for a Regulation on mutual recognition of protection measures

in civil matters (hereafter: the Mutual Recognition Regulation). At the rime of writing, the proposal is

awaiting Parliament’s 1st reading.

This instrument, dealing with protection orders taken in civil matters, complements a Member

States' initiative of September 2009 for a Directive on the European Protection Order (hereafter: the

EPO Directive). The EPO Directive was adopted on 13 December 2011 and ensures the mutual

recognition of protection measures taken in criminal matters. It became clear that the EPO Directive

in itself would not be compatible with the ambitious standard of mutual recognition already reached

for civil matters, covered by article 81 TFUE. Therefore, a need was identified to complement the

EPO Directive with a legal instrument on the mutual recognition of protection measures taken in civil

matters.

III. Non-legislative measure

In addition to and in parallel with these legislative action, the Commission will implement a range of

flanking measures that will be crucial to ensure that victims obtain effective rights in practice, and

not necessarily only when involved in criminal proceedings. This will include training and capacity

building, exchange of good practices, prevention of crime and violence, data collection and research.

The Commission also guaranteed financial support to promote issues relevant to victims’ rights and

needs.

C. Roadmap

To support the Commission’s initiative and complement it by other legislative and non legislative

measures, the Council introduced a coordinated and integrated approach to the various issues at

stake in a Resolution on a Roadmap for strengthening the rights and protection of victims, in

particular in criminal proceedings100

in June 2011. This Resolution gathered the necessary measures

aimed at enhancing the protection of victims in the EU, including those set out in the Commission

proposal, in a single coherent document. This way, the Council sets out the guiding principles for EU

action in this fields. The Resolution invites the Commission to submit the appropriate proposals

regarding all of the measures and to commit the Council to examining them as a matter of priority.

The text stated that action at EU level directed at strengthening the rights and protection of victims,

should aim to introduce common minimum standards. The Roadmap laid down as a priority measure

the revision of both the Framework Decision and the Compensation Directive. In addition, the

introduction of an instrument on mutual recognition of protection measures for victims taken in civil

matters should complement the EPO Directive. The Council also prioritised the introduction of

guidelines on best practices among the Member States and recommendations on how to deal with

the specific needs of vulnerable victims and victims of particular types of crimes.

The next two chapters will be devoted to the EPO Directive and the Minimum Standards Directive.

100 Resolution of the Council of 10 June 2011 on a Roadmap for strengthening the rights and protection of victims, in

particular in criminal proceedings [2011] OJ C187/1.



Chapter 2. Directive of 13 December 2011 on the Eur opean Protection Order

As outlined above, the EPO Directive, concerning mutual recognition of protection measures in

criminal matters, complements the Mutual Recognition Regulation on civil matters. As this paper

covers “Victims’ rights in Criminal Matters Post Lisbon”, the latter will not be analysed in greater

detail. The EPO Directive on the other hand, will be explored more in-depth, as it regulates issues

that fall within the scope of this paper.

Section 1 is again descriptive, covering the background, legal context, legal basis and the directive as

an instrument. Lastly, the content of the EPO Directive will be included in this section.

In a second section, the EPO Directive will be evaluated, followed by a conclusion.

Section 1. Describing the EPO Directive


I. Background

The situation for victims of course-of-conduct crimes, such as stalking or domestic violence, was

recognised as much more complicated than that of crime victims who are affected by non-recurrent

or incidental crimes, such as a single robbery or assault. In the majority of the cases, the offender has

a personal relationship with the victim or is obsessed with him. Consequently, the risks for these

victims to become victimised more than once by the same offender, were much higher than the

chances for the average victim.

Victims of course-of-conduct crimes remained under a constant threat. As it is an important need for

the victim to feel safe again after being violated, these crimes led to the victim’s inability to recover

from the offence. The chronic, psychological nuisance in combination with the insecurity whether a

new assault will take place, made these crimes much harder to bare than a single physical assault.101

It was therefore felt that the victims of course-of-conduct crimes by the same offender show an

additional need for protection against recidivism. Over the years, Member States had started to

enact legislation authorising protection orders. These orders requires the offender to do, or to

refrain from doing certain acts in order to protect the victim. The protection measure could for

example prohibit the offender from entering certain places, prohibit him to approach or contact the

protected person, and so on. The problem is that these protection orders were only effective within

the territory of the Member State that adopted them. For this reason, victims who wished to cross

borders were seriously impeded as they did no longer enjoy the protection granted by the protection

measure. The EPO Directive wanted to fill this legal vacuum that allowed offenders to re-approach

their victims once they crossed the border.

101 R Purcell, M Pathé and PE Mullen, ‘Association between stalking victimisation and psychiatric morbidity in a random

community sample.’ [2005] British Journal of Psychiatry 416-420.



II. Legal context

This concern was already envisaged earlier in the Stockholm Programme, which foresees that

"victims of crime or witnesses who are at risk can be offered special protection measures which

should be effective within the Union".102

The Stockholm Programme recognised that "those who are

most vulnerable or who find themselves in particularly exposed situations, such as persons subjected

to repeated violence in close relationships, victims of gender-based violence, or persons who fall

victim to other types of crimes in a Member State of which they are not nationals or residents, are in

need of special support and legal protection".103

The European Parliament also called for action on different occasions, specifically concerning the

position of victims of domestic violence.

On 2 February 2006, the European Parliament issued a Resolution on the current situation in

combating violence against women and any future action104

in which it recommends that Member

States formulate a zero-tolerance policy as regards all forms of violence against women and calls on

Member States to take appropriate measures to ensure better protection of and support to actual

and potential victims.

In its November 2009 Resolution on the elimination of violence against women105

, the European

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.

The Parliament called on the Union to guarantee the right to assistance, protection and support for

all victims of violence.

The EPO Directive was the answer to these calls for action. The instrument was a joint initiative of

twelve EU Member States. The EPO Directive basically wants to ensures that the protection provided

to a person in one Member State is continued in any other Member State to which the person

moves.

Within the context of the preparatory work of the EPO Directive, the Member States were consulted

through a questionnaire106

(the EPO-questionnaire) drawn up by the Spanish Presidency on the

envisaged instrument in December 2009. The Member States were asked to provide information on

their native protection order regimes. All Member States appeared to have victim protection

measures of some kind which vary in type and classification and may be adopted under different

systems in criminal or civil proceedings or, in some instances, by administrative decision.

At first sight, it seemed as if there was a common feeling among the Member States that such an EPO

Directive could be helpful in the protection of victims. Nevertheless, when taking a closer look at the

answers of several Member States, it became clear that some Member States were not convinced of

the added value of the proposed instrument.

The main objection raised concerned first of all the question whether there was a real need in

practice for the EPO Directive. Cases in which a person continues to be in danger after he moved

102 Stockholm Programme - point 3.1.1.

103 Stockholm Programme - point 2.3.4.

104 European Parliament Resolution on the current situation in combating violence against women and any future action

[2006] OJ C 288. 105

European Parliament Resolution on the elimination of violence against women [2009] OJ C 285. 106

Council Document No 5002/10 Note from the General Secretariat to the Working Party on Cooperation in Criminal

Matters on the European Protection Order (Answers by delegations in reply to the questionnaire.



from one EU Member State to another and is unable to get a protection order in the Member State

to which he moves, are bound to be exceptional. In addition, a number of respondents mentioned

two new Framework Decisions, the Framework Decision on probation measures107

and the

Framework Decision on supervision measures108

which improve the protection of the victims in

comparison to the current state significantly and therefore might already partly cover the problem.

The inclusion of administrative and civil protection orders is objected by several Member States and

some representatives questioned the effects the EPO Directive will have on the (financial) capacity of

their criminal justice systems. It was repeatedly argued that the victim might be in a better position

to apply for a protection order on the basis of national law of the Member State to which he moved.

This would ultimately guarantee faster and better protection, rather than having the original order

recognised by the new Member State. A couple of Member States drew the attention to potential

problems and difficulties that can arise due to substantial differences between mechanisms of victim

protection chosen in each Member State.

The preparation of the EPO Directive also included several studies. First of all, a 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.109

Within the framework of the Daphne Programme the Commission contracted a feasibility study110

to

assess the possibilities, opportunities and needs to standardise national legislation on violence

against women, violence against children and sexual orientation violence. The study was finalised in

2010.

The Council also examined various policy options in an impact assessment. Policy option C included a

legislative proposals to amend the Framework Decision on probation measures and the Framework

Decision on supervision measures. Amended versions of those Framework Decisions could

incorporate a protection mechanism for those cases where it is the victim who moves to a State

other than the one which adopted the measure. Option D contained a legislative proposal for a single

text covering all scenarios relating to the extension of victim protection.

Options C and D were found to offer the best ways to deal with the issue and to meet the objectives

identified in full. The preferred option would be option D in the light of the legislative consequences

of existing instruments, the need for clarity when applying new legislative texts and the usefulness of

having a legislative text specifically designed to deal with victim protection across borders.

107 Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of mutual

recognition to judgments and probation decisions with a view to the supervision of probation measures and alternative

sanctions [2008] OJ L 337/102. 108

Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the

European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional

detention [2009] OJ L 294/20. 109

Hess Burkhard, Feasibility Study: The European Protection Order and the European Law of Civil Procedure

< http://ec.europa.eu/justice/index_en.htm > 110

Feasibility study to assess the possibilities, opportunities and needs to standardise national legislation on violence

against women, violence against children and sexual orientation violence [2010]

< http://ec.europa.eu/justice/funding/daphne3/daphne_feasibility_study_2010_en.pdf >.




The legal instrument chosen for the mutual recognition of protection orders in criminal matters is the

directive. The Treaty of Lisbon foresees the use of directives as legal instrument in article 288 TFEU

and left the definition unchanged compared to directives pre Lisbon. A directive is thus still binding

upon each Member State to which it is addressed as to the result to be achieved, but leaves it to the

national legislator to choose the form and methods.

It should be pointed out that the legal instrument chosen for the mutual recognition of protection

measures in civil matters is a regulation, based on article 288 TFEU. A regulation has general

application. It is binding in its entirety and directly applicable in all Member States. A regulation thus

becomes immediately enforceable in all Member States and does not need to be transposed into

national law by means of implementing measures. They therefore constitute one of the most

powerful instruments of EU law.

After adoption, the Mutual Recognition Regulation will have immediate effect, while the EPO

Directive has to be implemented in national law by the EU Member States.

C. Legal basis

The legal basis for the EPO Directive is article 82(1) (a) and (d) TFEU, relating to cooperation in

criminal matters. Article 82(1) TFEU provides that judicial cooperation in criminal matters in the

Union shall be based on the principle of mutual recognition of judgments and judicial decisions.

A reference to article 81 TFEU was not added, since this provision concerns judicial cooperation in

civil matters. In addition, a reference to article 81 TFEU would be legally impossible. The EPO

Directive is adopted on the initiative of the Member States, on the basis of article 76(b) TFEU. This

article limits Member States’ initiatives for instruments based on provisions in chapters 4 and 5 TFEU,

relating to judicial cooperation in criminal matters and police cooperation. Only the Commission has

the right to initiate legislation touching on civil law and a Member States’ initiative cannot be based

on article 81 TFEU, which is contained in chapter 3, concerning judicial cooperation in civil matters.

Article 82(1) (a) TFEU is a legal basis to the EPO Directive, as the instrument lays down rules and

procedures for ensuring recognition throughout the Union of all forms of judgments and judicial

decisions. Article 82(1)(d) TFEU was chosen as legal basis, since the aim of the EPO Directive is to

facilitate and enhance the protection granted to victims of crime, or possible victims of crime, who

move between Member States of the EU. Cooperation between judicial or equivalent authorities of

the Member States carried out in respect of this aim falls within the scope of the aforementioned

provision.

D. Content

It should be emphasised that the EPO Directive is first of all a purely transnational instrument: its

application is limited to cases in which the victim decides to reside in or move to another Member

State than the Member State that imposed the protection measure.

As for the personal scope of application, the EPO Directive was in the first place created with the aim

of improving the protection of victims of gender violence because most protection orders concern

women who are victims of gender violence. Initially, it was thus intended to be a tool to protect



victims of gender violence, but its scope of application eventually was widened to all other victims,

children or adults of either sex, against whom the offender may commit another offence.111

The EPO

Directive covers for example also harassment, stalking, forced marriage, honour killing, paedophilia,

human trafficking, organised crime and terrorism, as long as they have an identified perpetrator.

The EPO Directive is also a mutual recognition instrument. It is based on the following assumptions: a

victim is in danger, such that the Member State in which he resides has to adopt a protection

measure against the offender in the context of criminal proceedings. Whenever the victim decides to

move to another Member State, he continues to be in danger on the territory of the Member State

to which he wishes to move.

If a situation like that occurs, the EPO Directive wants to guarantee that application of the measures

imposed to protect the victim are no longer confined to the territory of the Member State that

adopted them, but are applicable to the victim wherever he goes within the EU. In other words, the

instrument ensures that the protection provided in one Member State is maintained and continued

in any other Member Sate to which the person moves. Victims should thus be free to exercise their

right to move and reside freely within the territory of the Member States without losing their

protection because of the execution of that right.

Article 2 defines the basic terms used throughout the instrument and specifies their use and

interpretation.

European protection order112

is defined as a decision, issued by a judicial or equivalent authority of a

Member State relating to a protection measure and aiming at facilitating the taking by another

Member State, where appropriate, of a protection measure under its own national law with a view to

continuing the protection of the protected person. The scope of application is thus not limited to

protection orders issued by judicial authorities because in some Member States, the issue of victim

protection is also addressed by authorities of a non-criminal law nature, for example civil or

administrative authorities.

In order to stay within the remit of article 82 TFEU, the scope of protection measure was limited to

decisions ordered in criminal matters. The protection measure is imposed in order to protect the

victim against a criminal act which may endanger his life, physical or psychological integrity, dignity,

personal liberty or sexual integrity.

The protected person is the natural person who is the object of the protection resulting from the

protection measure and the person causing danger is the natural person on whom the protection

measure is imposed.

Article 2 defines the issuing State as the Member State in which the protection measure has been

adopted that constitutes the basis for issuing a European protection order and the executing State as

the Member State to which the protected person moves and to which the original protection

measure can be extended.

The EPO Directive is not a harmonisation instrument. Its objective is not to ensure uniformity as

regards the protection measures that each national legislature can adopt or to create new EU-level

protection measures. Therefore, the protection measures adopted in the issuing State and the ones

111 Recital 9

112 “EPO Directive” refers to the instrument, “European protection order” refers to the decision on the basis of which a

Member State is obliged to guarantee a continued protection of the foreign victim.



taken by the executing state, are to be understood as the protection measures as available under the

national law of the issuing/executing Member State.

For this reason, the executing State is not expected to impose the exact same protection measure

that was adopted in the issuing State. Instead, it has to adopt measures that, to the highest degree

possible, correspond to the protection measure adopted in the issuing State.

The Member States should designate the competent authorities, being the (judicial or equivalent)

authorities competent to issue and recognise a European protection order. Member States can also

appoint a central authority to assist its competent authorities.

Of course, a European protection order can only be issued when a protection measure has been

previously adopted in the issuing State. Article 5 limits the protection measures eligible for issuing a

European protection order to protection measures imposing specific prohibitions and restrictions.

Article 6 regulates the issuing of a European protection order. The competent authority in the issuing

State shall take two requirements into account when deciding upon the issuing of a European

protection order, namely the length of the period or periods that the protected person intends to

stay in the executing State and the seriousness of the need for protection. A European protection

order can only be ordered at the request of the protected person and after verifying that the

protection measure meets the specified requirements.

The protected person (or his guardian or representative, as appropriate) should be informed about

the possibility of requesting a European protection order in case that person decides to leave for

another Member State, as well as of the basic conditions for such a request. If the request to issue a

European protection order is rejected, the competent authority of the issuing State shall inform the

protected person of any applicable legal remedies that are available, under its national law, against

such a decision. The person causing danger shall be given the right to be heard and the right to

challenge the protection measure. The European protection order has to be in accordance with the

form set out in Annex I to the Directive and must contain the information prescribed in article 7.

Article 8 foresees rules on the transmission procedure and foresees for direct communication

between competent authorities.

Article 9 describes the series of actions that must be taken in the executing State, including

recognising the European protection order and taking a decision on adopting a protection measure

available under its national law in a similar case. The competent authority of the executing State shall

also inform the person causing danger and the protected person of any measure taken in the

executing State. Grounds for non-recognition of a European protection order are included in article

10. The issuing State and the protected person have to be informed about the executing State’s

refusal to recognise a European protection order.

If the European protection order is recognised, the executing State shall be competent to adopt and

to enforce measures according to its own national law. The executing State is also competent to take

(non-)criminal measures in case of breach of the measures taken by the executing state. The

competent authority of the issuing State should be notified of such breaches.

According to article 13, the issuing State will have jurisdiction to take all subsequent decisions

relating to the protection measure underlying a European protection order, notably the renewal,

review and withdrawal of the protection measure, and the initiation of new criminal proceedings

against the person causing the danger. The executing State can revoke the recognition of a European



protection order: this may happen for example where there is evidence that the protected person

has definitively left the territory of the executing State.

Article 15 deals with the priority in recognition of a European protection order, providing that it shall

be recognised with the same priority which would be applicable in a similar national case. Point 13 of

the preamble talks about “treating the European protection order with appropriate speed”, but no

concrete timetable is mentioned. The urgency of the matter, the date foreseen for the arrival of the

protected person and the degree of risk are guidelines to decide on the prioritising.

The relationship with other instruments is covered by article 20. The EPO Directive does not affect

the application of other instruments. The article specifically mentions two framework decisions,

namely the FD on probation measures and the FD on supervision measures. Both shall not be

affected by the EPO Directive.

Section 2. Reviewing the EPO Directive

A. Implementation

In accordance with article 21 and 24, the EPO Directive entered into force on 10 January 2012 and

has to be transposed by 11 January 2015. As a consequence, it is currently impossible to review the

implementation of the instrument. Nonetheless, I would like to highlight some thoughts on the

instrument that might preview possible transposition problems in the future.

B. Critical remarks

I. Critical remarks concerning the EPO Directive

1. Need for an EPO Directive?

An objection that was already raised by a couple of Member States in the EPO-questionnaire

concerns the question whether there is an actual need in practice for the EPO Directive. No statistical

evidence was made available to prove the need for the instrument, as the data provided in the

Explanatory Memorandum were totally irrelevant. The Explanatory Memorandum refers to “over

100 000 women residing in the EU that are covered by protective measures of various kinds adopted

by Member States in response to gender-based violence.” But these numbers do not correspond

with the number of women who were granted a protection measure, who decided to move to

another Member State, and who also continue to be in danger after crossing the border of this

Member State and therefore need additional protection through the EPO Directive. Cases like that, in

which the offender continues to pose a threat even after the victim has moved from one EU Member

State to another are probably extremely rare. The number of cases in which the offender is able to

actually follow the victim and is willing to get into the trouble to do this, is definitely a lot lower than

the mentioned 100 000.113

In the few cross-border cases which do arise, the question should be asked whether the victim

cannot be protected in other (easier) ways than via the EPO Directive. He could for example contact

the competent local authorities and at least obtain preliminary advice and support. In addition, in

113 Suzan van der Aa and Jannemieke Ouwerkerk, ‘The European Protection Order: No time to Waste or a Waste of Time?’

[2011] European Journal of Crime, Criminal Law and Criminal Justice 271.



some Member States, a new protection order can quickly be issued on the basis of national law. The

issuing of a protection order via the regular national procedure offers two advantages compared

with the EPO Directive.

First of all, the examination, qualification and comparison of a foreign protection measures can be

truly time consuming, especially since the new protection measures has to ensure a comparable level

of protection as the original protection measure did. As a consequence, it can take a considerable

amount of time before the executing State can actually transpose the foreign measure into one of its

own protection measures. A decision on the basis of national law might ultimately guarantee faster

and better protection than the European protection order does.

Secondly, the EPO Directive does not foresee the privilege of a fixed deadline within which the

European protection order should be procured. It shall on the contrary “be recognised with the same

priority which would be applicable in similar national cases”. This provision reduces the possible

advantageous effect that the European protection order could have had compared to the procedure

on the basis of the national law of the Member States.

In other words, cases in which a person continues to be in danger after he moved from one EU

Member State to another and is unable to get a protection measure in the Member State to which

they move (by way of a more efficient and rapid procedure than the European protection order), are

bound to be exceptional. The EPO Directive can not show this observation to be false, as it fails to

give any evidence of victims being refused protection in a Member State to which they move.

Altogether, it should be concluded that, in addition to the observation that the EPO Directive was not

actually needed in the first place, the instrument does not really seem to be an improvement

compared to regular national procedure.

2. The definition of “protection measure”

As outlined above, the EPO Directive does not expect Member States to amend their national law to

enable them to adopt protection measures in the context of criminal proceedings.114

The EPO

Directive presumes all EU Member States to have (criminal) protection measures available. At least,

this is what the Explanatory Memorandum of the EPO Directive suggests. It appears that all EU

Member States indeed have some form of criminal protection measure in place. However, the

question on how a protection measure should be defined is not a straightforward one. As there is no

universally accepted definition of “protection measure”, the definitions adopted within the Member

States are based on national legislation and only apply to the domestic situation. This might lead to

problems when transposing the protection measure to other jurisdiction for the purpose of applying

the European protection order.

The definition of “protection measure” in the EPO (article 2, 2 and article 5) is clearly too restrictive.

Firstly, several Member States include other prohibitions or obligations in their protection measures

than the ones enumerated in article 5.

Furthermore, a number of Member States allow both pre-trial as well as post-trial protection

measures. It is regrettable that no explicit reference was made to both provisional and formal

decisions in the definition. That way, both pre-trial and post-trial protection measures would have

fallen within the scope of the EPO Directive.

114 Recital 10.



Next, the authorities competent to impose a protection order varies widely. This nuance is captured

by the EPO Directive though, as it mentions “a decision taken by judicial or equivalent authorities”.

It is clear that, although practically each Member State has some forms of criminal protection

measure available, they come in many shapes and sizes and the level of protection provided by them

varies accordingly. This observation is doomed to seriously hinder the transposition of certain

protection measures adopted in the executing State into another protection measure in the

executing State. It will, for example, be difficult for an executing State to recognise a criminal pre-trial

protection order and to replace it with a native equivalent, if that State has no criminal pre-trial

protection orders available in the national legal order. 115

In order to adequately compare the different protection measures and levels throughout the

Member States, objective and standardised criteria against which the different protection orders can

be measured will have to be developed. Moreover an assessment of the functioning of protection

order-legislation in practice would be necessary. These measures seems, if not totally unrealistic, at

least very complicated, extremely time consuming and costly.

As outlined above, the EPO Directive is a mutual recognition instrument and, as such, not a

harmonisation instrument. Be that as it may, the inclusion of a minimum level of harmonisation in

the EPO Directive would have been a benefit for the protection of victims across Europe.

3. Prioritising

When the EPO Directive was initiated, it was repeatedly emphasised that the instrument should

include “a dynamic and effective mechanism far removed from a bureaucratic procedure which

would stand in the way of an effective response being adopted as swiftly as possible in the executing

State.” The adoption of a classic mutual recognition procedure was assessed as “incompatible with

the immediate response required for a victim once again in danger in the executing State.”116

In the Initiative for the EPO Directive, article 12 provided that the European protection order had to

be recognised “without delay”. The draft report on the initiative for the EPO Directive proposed to

amend article 12 and to include a fixed deadline: “the European protection order shall be executed

within 20 days.”

In the EPO Directive’s final text, the 20-day deadline was not adopted. Article 15 now instructs that

“a European protection order shall be recognised with the same priority which would be applicable

in a similar national case, taking into consideration any specific circumstances of the case, including

the urgency of the matter, the date foreseen for the arrival of the protected person on the territory

of the executing State and, where possible, the degree of risk for the protected person.”

It is to be regretted that the fixed time limit of 20 days was not obtained in the final version of the

EPO Directive. Without questioning the feasibility of the 20-day deadline, this would have been a real

improvement to the position of the cross border victim, since going through the regular national

procedures for obtaining a protection measure would take most probably longer than 20 days.

The current article 15 inevitably gives rise to the question whether the EPO Directive actually has an

added value compared to simply requesting a national protection order. Since both procedures have

115 Suzan van der Aa, ‘Protection Orders in the European Member States: Where Do We Stand and Where Do We Go from

Here?’ [2011] European Journal of Criminal Policy and Research 3-4. 116

Explanatory Memorandum 13.



to be handled with the same priority, the application of the EPO Directive is not really advantageous

for the victims.117

4. Double criminality

Article 10, 1 (c) foresees a possibility for the competent authority of the executing State to refuse to

recognise a European protection order if “the protection measure relates to an act that does not

constitute a criminal offence under the law of the executing State”. In other words, the EPO Directive

presumes the principle of double criminality, meaning that mutual recognition will only occur if the

behaviour underlying the protection measure constitutes a crime in both the issuing State and the

executing State.

Due to this, the radius of action of the EPO Directive is reduced as certain behaviour falls under its

radar. Stalking for example, is criminalised in only twelve Member States and mutual recognition of

protection measures that were imposed in cases of stalking will therefore only be recognised within

these twelve Member States. In the other fifteen Member States, the victim will encounter

difficulties in having his protection measure recognised.118

5. Financial implications

The initiators of the EPO Directive were pretty straight forward on the financial implications of the

instrument, ensuring that “the proposal will not impose any major additional expenditure on

Member States' budgets or, on the European Union budget. In the long term, the costs which it may

involve, relating mainly to the translation of the European Protection Order, will in many instances

represent savings by preventing the commission of new offences against the victim, that being the

primary objective of this proposal.”

This phrasing seems a bit impetuous as in practice the budgetary implications of applying the EPO

Directive should not be underestimated. The potential costs which the instrument brings about

include the costs of notifying any measure taken on the basis of the European protection order to the

person causing danger, the protected person and the competent authority of the issuing state

(administrative costs) and to keep them informed in a language they understand (translation costs)

and the costs for opening up legal remedies for the protected person against the refusal to recognise

the European protection order.

Another significant cost results from the execution of the European protection order. To start with,

the executing State will have to invest in procedures that facilitate the qualification of foreign

protection measures and allow a comparison of them with the protection measures available in the

executing State. Next, the execution of the European protection order includes the costs of measures

necessary for enforcement, such as the use of technical devices, or even imprisonment, if the order

that needs to be enforced would prescribe such measures. It would also include the costs for

imposing sanctions in case of breach.

According to article 18, the costs resulting from the application of the EPO Directive shall be borne by

the executing State. The executing State most probably will not be eager to invest in all these costs

only to take over the burden of another Member State without any financial contribution of that

State or the possibility to be compensated for the expenses. It might have been more realistic to

117 Suzan van der Aa and Jannemieke Ouwerkerk, ‘The European Protection Order: No time to Waste or a Waste of Time?’

[2011] European Journal of Crime, Criminal Law and Criminal Justice 282 - 283. 118 ibid 278 -279.



include a division of costs or a reimbursement mechanism with the issuing State for the most money-

consuming activities. To put the burden of financing all costs on the executing State might, in

practice, curtail the effective application of European protection orders. It would be no surprise if the

executing State deliberately fails to act in order to prevent the recognition of a European protection

order. The potential tendency toward non compliance will even be intensified by the fact that the

executing State has to execute a protection measure that was not even issued in its own

jurisdiction.119

6. Relationship with other instruments

Another objection that was also highlighted in the EPO-questionnaire, concerns the overlap of the

matters dealt with in the FD on supervision measures and the FD on probation measures and the

EPO Directive. The FD on supervision measures addresses the situation in which a person becomes

the suspect of a crime outside his Member State of residence. This instrument allows Member States

to recognise non-custodial pre-trial measures that were taken anywhere in the EU. Post-trial orders

are regulated by the FD on probation measures. This instrument allows for a person sentenced to a

probation measure or given an alternative sanction in a Member State other than his own, to be sent

back to the State where he normally resides. The latter will recognise the judgment and will take on

the supervision of the sentence.

The protection of the victim is the most predominant in cases were both the victim and offender

move to the same Member State. In this situation, the offender poses a real threat to the victim and

the EPO Directive may provide a remedy. However, the FD on supervision measures in combination

with the FD on probation more or less covers all possible pre- and post-trial criminal protection

measures. Therefore, the number of cases in which the EPO would be absolutely necessary to

protect the victim, is substantially reduced by the fact that existing protection measures can already

be recognized on the basis of other EU instruments.

7. Are protection measures the best instrument to effectively protect victims?

Apart from the concerns regarding the definition of a “protection measure”, the effectiveness of a

protection measure in itself can be contested both during the criminal procedure as well as after the

measure has been imposed. 120

During the criminal procedure

The absence of protection measures during some phases of the criminal procedure can seriously limit

the level of protection. Certain Member States merely recognise pre-trial protection measures that

are only valid until the final judgement. Opposed to that the criminal justice systems in other States

does not provide protection before there is a final judgment that resulted in the conviction of the

accused. Some Member States thus show considerable gaps in victim protection legislation, which

inevitably will influence the level of protection.

An observation that can also seriously hamper adequate protection of victims is the restriction of

criminal protection measures to a limited range of victims. In some Member States the measures are

exclusively available to victims of domestic violence and victims of human trafficking, but not to

victims of other offences.

119 ibid 281 - 282. 120

M Malsch, De Wet Belaging: Totstandkoming en toepassing (Nijmegen Ars Aequi Libri 2004) 30.



As mentioned before, victims of stalking, are subject to an additional obstacle to obtaining a criminal

restraining order. Criminal restraining orders can only be imposed when suspicions of a crime have

arisen. In 15 Member States, stalking is not criminalised (yet). In those jurisdiction, victims of stalking

are thus practically left empty-handed, as criminal restraining orders will not be available to them.

After adoption of the protection measure

Once the protection measure has been adopted, its effectiveness depends mainly on the sentences

available upon violation and the adequate follow-up by law enforcement officers. Without these two

guarantees at hand, a protection measure is nothing more than a piece of paper. The limitation in

time of some protection measures also do harm to its effectiveness. 121

C. Conclusion

The research concerning the EPO Directive has first of al shown that the instrument will only be

useful to a very limited number of victims and to a quite limited number of situations. The inclusion

of the double criminality principle restricts the field of application of the EPO Directive even more. In

cases the EPO Directive is applicable, it was shown that the granting of protection measures is not

always the most effective method to protect victims.

Mrs. Jiménez Becerril, one of the MEPs who initiated the EPO Directive admitted herself that “the

EPO Directive is not a perfect instrument and it has taken two years to be approved”122

. The fact that

it took so long before the instrument was eventually finalised, illustrates the difficulties that arose

when adopting the instrument and influenced its effectiveness. The differences in Member States’

legal system was the main obstacle to save during the negotiations of the instrument. The final

version of the instrument bears all the signs of a political compromise.

The instrument contains a lot of vagueness concerning the interpretation of “protection measure”.

As outlined above, a common minimum level of harmonisation concerning the concept of protection

measures would have served victims of crime. Moreover, essential elements, such as the speed with

which the European protection order has to be recognised and the budgetary implications of

granting a European protection order, leave much to be desired.

The EPO Directive undeniably missed some chances to provide a considerable amelioration for crime

victims who want to move and reside freely on the entire EU territory. For this reason, it is unlikely

that the EPO Directive’s main objective, eliminating existing borders from the point of view of victim

protection, will be achieved.

121 Suzan van der Aa, ‘Protection Orders in the European Member States: Where Do We Stand and Where Do We Go from

Here?’ [2011] European Journal of Criminal Policy and Research 5. 122

< http://pr.euractiv.com/press-release/european-protection-order-increased-security-victims-crimes-throughout-eu-

teresa-jimen >



Chapter 3. Directive establishing minimum standards on the rights, support and protection of victims of crime

The most recent victims’ rights instrument that will be discussed is the Minimum Standards Directive.

At the time of writing, the Minimum Standards Directive has not been adopted yet. The indicative

plenary sitting including the first reading is expected by July 2012.123

For this reason, the discussion of

the instrument will be limited to the Proposal for the Minimum Standards Directive124

, presented on

18 May 2011 as a part of the Victims’ Rights Package.

The discussion of this instrument will cover more or less the same elements as the discussions of the

previous instruments. Section 1 offers a descriptive part, while section 2 aims to review the

Minimum Standards Directive. The Descriptive part consists of the background and legal context, the

directive as an instrument, the legal basis and the content. In a second section, some critical remarks

will be presented in order to review the instrument.

Section 1. Describing the Minimum Standards Directi ve


I. Background

In part 1 of the paper, the 2001 Framework Decision was subject of an extensive study. This study

showed that the objectives of the Framework Decision have not been fully realised and that, over the

last decade, little improvements have been achieved concerning the rights of victims in criminal

proceedings.

The need to guarantee these rights was nevertheless still recognised as a basic condition for mutual

recognition of judgments and judicial decisions. Without mutual recognition, judicial cooperation in

criminal matters in the EU becomes impossible. In order to effectively ensure the application of the

principle of Mutual recognition, a spirit of confidence should be established, 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 can trust

that those rules are correctly applied. Victims are included in this group of interested parties. When

victims are not subject to the same minimum standards throughout the EU, the essential trust can be

reduced due to concerns over the treatment of victims or due to differences in procedural rules.

It was recognised that common minimum rules should 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. The common minimum rules should also contribute to reducing obstacles to free

movement of citizens since such rules should apply to all victims of crime.

123 For an overview of the current status of the proposal, see:

<http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2011/0129(COD)&l=en#basicInformation>

(last assessed on 5 May 2012). 124 “The Minimum Standards Directive” refers to the Proposal for a Directive Establishing Minimum Standards on the

Rights, Support and Protection of Victims of Crime.



II. Legal context

The legal context in which the Minimum Standards Directive was developed is more or less the same

as that of the Victims’ Rights Package, as the Minimum Standards Directive is part of the Package. For

this reason, the legal context outlined before with regard to the Victims’ Rights Package will not be

repeated in this chapter.

With regard to the Minimum Standards Directive, the Impact Assessment concluded that there was a

need to replace the 2001 Framework Decision with a new instrument containing concrete obligations

on the rights of victims. The legislative part should be followed with practical measures to facilitate

implementation.


The Minimum Standards Directive replaces the 2001 Framework Decision. With the adoption of the

Treaty of Lisbon, the EU pillar structure has been abolished and framework decisions were no longer

foreseen as a legal instruments. They had to be updated and transformed into directives. Therefore,

the instrument chosen is a directive, in accordance with article 288 TFEU. As mentioned in the

context of the EPO Directive, directives have not been modified with the adoption of the Treaty of

Lisbon and thus still require Member States to achieve particular results without dictating the means

of achieving that result.

C. Legal basis

The legal basis for the Minimum Standards Directive is derived from article 82(2)(c) TFEU.

The power to act and, where necessary, propose EU legislation in the area of criminal law is

conferred by article 82 TFEU. Article 82(2)(c) TFEU provides a specific legal basis for criminal matters

and establishes that “to the extent necessary to facilitate mutual recognition and police and judicial

co-operation in criminal matters having a cross border dimension, minimum rules may be established

concerning the rights of victims of crime”.

D. Content

The Minimum Standards Directive is intended to replace the 2001 Framework Decision. The

instrument lays down minimum rules on the rights, support and protection of the victims of crime. It

also covers very briefly the matter of compensation, but as mentioned before, the Commission

indicated that compensation will be subject to further study and action and that the Minimum

Standards Directive is only a first step. As for the legal elements, some provisions of the 2001

Framework Decision were maintained in their original form in the Directive on Minimum Standards

or have been amended only to the extent necessary.

The general objective of the Minimum Standards Directive, as formulated in article 1, is “to ensure

that all victims of crime receive appropriate protection and support, are able to participate in

criminal proceedings and are recognised and treated in a respectful, sensitive and professional

manner, without discrimination of any kind, in all contacts with any public authority, victim support

or restorative justice service”.

Article 2 contains definitions. As the purpose of the Directive is to ensure that all victims of crime

receive adequate protection and support, the field of application is extended. Point 9 of the Recital

emphasises that “Family members of victims are also harmed as a result of the crime, in particular



the family of a deceased victim, who have a legitimate interest in criminal proceedings. Such indirect

victims should therefore also benefit from protection under this Directive.”

This wording creates the assumption that the Minimum Standards Directive will support not only

family of a deceased victims, but also family of surviving victims. This is not the case though, as only

family members of a person whose death has been caused by a criminal offence enjoy all rights

provided for by the Minimum Standards Directive. They 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.

The provision on information rights and right to understand and to be understood are included in

articles 3 to 6. Article 3 foresees more or less the same rights as the Framework Decision did,

although it is added that the victim should be informed of any procedures for complaints if their

rights were not respected and should be given contact details for communications about their case.

In addition, the victim should be given contact details for communication about their case. Article 4

describes the right to receive information about the case a little bit more detailed compared to the

corresponding provisions in the Framework Decision. For example, next to just informing the victim

about the outcome of their complaint and the court’s sentence, the victim now has the right to be

informed of any decision, including reasons for that decision. As for the right to understand and to be

understood, which includes the right to interpretation and translation, this is no longer limited to

victims having the status of witnesses or parties to the proceedings. The content of these rights are

described far more elaborated than in the Framework Decision, in which only one short article was

dedicated to communication safeguards. It is not up to the victim to request for translation or

interpretation, but the Member States themselves have the obligation to check whether the victim

understand and speaks the language of the criminal proceedings. The Minimum Standards Directive

also emphasises that the communication safeguards should be free of charge.

In accordance with article 7, Member States have to ensure that victims have access to support

services from the earliest possible moment after the commission of a crime. The article is also pretty

detailed as to the minimum rights that should be ensured, referring to the need to provide emotional

support, advice concerning financial end practical issues, and information on where to find other

more specialist support.

Chapter 3 of the Minimum Standards Directive concerns participation in criminal proceedings and is

comparable with what was foreseen in the Framework Decision. It includes the right of victims to

obtain a written acknowledgement of any complaint they might make, the right to be heard and to

supply evidence, to demand review of any decision not to prosecute, to legal aid, to reimbursement

of expenses, to the return of property and to a decision on compensation from the offender and the

rights of victims residing in another Member State.

The provision on mediation is a lot more straight-forward than the provision on penal mediation in

the Framework Decision. In stead of mentioning that mediation should be “promoted in criminal

cases for offences which are considered appropriate for this sort of measure”, the Directive now

obliges the Member States to establish concrete standards to make sure the victim is not intimidated

or further victimised because of the mediation procedure.

The position of vulnerable victims is regulated in chapter 4. The Framework Decision was extremely

vague on this aspect and only mentioned that “the Member States shall ensure that victims who are

particularly vulnerable can benefit from specific treatment best suited to their circumstances”.

Luckily, the Minimum Standards Directive is much more unambiguous on this matter and first of all

clearly identifies the different categories of vulnerable victims. The categories are determined by the



personal characteristics of the victim and by the nature or type of crime a victim has suffered.

Additionally, all other victims receive an individual assessment to determine whether they are

vulnerable, because of personal characteristics, the circumstances, type or nature of the crime, the

severity of the crime and the degree of apparent harm suffered by the victim.

Article 21 guarantees the protection of vulnerable victims both during criminal investigations and

during the trials itself and is pretty specific on this matter. Article 22 foresees additional measures for

the specific needs of child victims, such as the use of video recorded interviews as evidence in

criminal court proceedings and the appointment of a special representative for the victim in certain

cases.

As for the protection of victims, article 17 and 19 want to ensure the physical and emotional

protection of both victims and their family members. Contact between the victim and accused or

suspected persons should be avoided, not only within court premises (article 8 Framework Decision),

but in any venue where victims may have personal contact with public authorities and in particular

venues where criminal proceedings are conducted. The victim is also given specific protection during

questioning in criminal investigations and the privacy and photographic image of the victim must be

safeguarded.

Chapter 6 contains some general provisions. Article 24 obliges the Member States to ensure that

professionals receive general and specialist training. The Minimum Standards Directive is rather

specific about who should be understood as “practitioner”, mentioning police, prosecutors and court

staff, members of the judiciary, those providing victim support and restorative justice services,

whereas the Framework Decision only made specific reference to police officers and legal

practitioners. The Minimum Standards Directive also specifies the minimum that should be included

in training, while the Framework Decision was completely mute on this matter. Finally, the Minimum

Standards Directive emphasises the need for the Member States to cooperate in order to facilitate

more effective protection of victims’ rights and interests. Working together would ensure a

coordinated response to victims and it would minimise the negative impacts of crime.

Section 2. Reviewing the Minimum Standards Directiv e

A. Implementation

The Minimum Standards Directive has not been adopted yet, let alone implemented in the Member

States. It is therefore impossible to discuss the implementation and the added value of the

instrument. On the other hand, the paper can consider potential implementation problems by

reviewing the instrument in itself. It should be emphasised that the version of the Minimum

Standards Directive that will be the subject of review in the following points is not the final version of

the instrument. The final version of the Minimum Standards Directive is likely to show several

differences compared to the version subject to review right now. Some of the remarks mentioned,

might therefore not apply anymore once the Minimum Standards Directive has been adopted.



B. Critical remarks

I. Critical remarks concerning the Minimum Standards Directive

1. Foreseen timetable

Article 26 of the Minimum Standards Directive foresees the implementation deadline within two

years after the date of adoption of the Directive. Compared to the extremely tight deadline that was

prescribed in the Framework Decision, the Minimum Standards Directive seems to adopt a more

reasonable approach.

The Minimum Standards Directive is clearly more detailed and concrete than the Framework

Decision with regard to the measures that should be taken for implementation. For example when it

comes to the protection of vulnerable victims, training of practitioners, interpretation and

translation, the Minimum Standards Directive expects far-reaching measures, not only on legislative

level, but also on practical level. As a consequence, the foreseen implementation deadline of two

years should be maintained as an absolute minimum.

2. Vague provision

It cannot be denied that the Minimum Standards Directive took a major step forwards when it comes

to formulation. Most of the provision are clear-cut and obvious and don not leave too much room for

interpretation. This being said, a couple of provisions are still far from perfect and need adjustment.

The position of cross-border victims

Article 16, on the protection of cross-border victims, is a literal copy of the corresponding provision

in the Framework Decision. This is to be regretted since that provision used very vague wordings. It

did not prescribe concrete measures, but talked about “taking appropriate measures to minimise the

difficulties faced where the victim is a resident of a Member State other than that where the offence

occurs”.

The different implementation reports of the Framework Decision have shown that the support

available to cross-border victims was evaluated negative, especially on the issue of information to

victims. The majority of the EU Member States appeared not to offer victims the opportunity to

report crimes committed abroad once they return home. Most of the Member States solely offered

victims this opportunity in cases in which they themselves have jurisdiction.

There was an explicit call for improvements regarding the position of cross-border victims and it is

therefore remarkable that this provision stayed untouched in the Minimum Standards Directive.

Cross-border victims could definitely benefit from the introduction of fast track procedures for those

who stay in the Member State of victimisation in order to better follow the procedure and it would

have been helpful to foresee training in multiculturalism for personnel getting in touch with the

victim. Let us hope the necessary adjustments are made by the time the Minimum Standards

Directive is adopted.

Right to compensation from the offender in the course of criminal proceedings

Article 15 was also left more or less the same compared to the Framework Decision. Disappointing,

since the article now contains the obligation to ensure that victims are entitled to obtain a decision

on compensation by the offender, within a reasonable time. Member States should take measures to

encourage the offender to provide adequate compensation to victims. Even though the Minimum



Standards Directive is only a “first step” towards a more elaborated instrument on compensation,

this right should have been guaranteed is clear-cut terms instead of copying the provision from the

Framework Decision.

Cooperation and coordination of services

Article 25 is as well basically a copy of the corresponding provision in the Framework Decision. It

lacks concrete obligations and consequently gives rise to a wide margin of interpretation for the

Member States. It is once again too bad that this provision stayed untouched, because an effective

cooperation of national victim support services, by way of exchanging best practices and experience,

can be of major importance for an easy and fast recovery of the victim.

Right to receive information from first contact with a competent authority

This provision requires Member States to ensure that victims are provided with information, without

unnecessary delay. It is completely unclear what period of time corresponds with “without

unnecessary delay” and every Member State probably has his own interpretation on that. The open

formulation of this right will probably not result in concrete action by the Member State.

3. The definition of “victim”

According to article 2(a)(ii), the family members of a person whose death has been caused by a

criminal offence are the only family members considered as victims. It is unclear why this nuance was

introduced: family members of surviving victims can have equal “specific and legitimate interests in

the proceedings” as family members of deceased victims. Surviving victims can be so badly injured

that they need a very high level of support in exercising their legal capacity before or after the crime.

One could refer to cases where the victim is left paralysed or mentally handicapped by a crime. Same

goes for family members of children who became victim of sexual violence and woman who became

victim of domestic violence.

In such cases, the financial, psychological and practical burden for the family members should not be

underestimated. Even though the victim did not die, those family members are in serious need for

the support and protection provided in the Minimum Standards Directive. Moreover, in such cases,

family members are often recognised as representatives of the victim.

Without suggesting that the entire Minimum Standards Directive should be applicable to each and

every family member of all victims, it is recommended that a broader approach is adopted in defining

the victims of crime. This could be done by specifying the rights that are exclusively available to

family members of victims whose death has been caused by the crime, but making at least some of

the remaining provisions applicable to family members of surviving victims. They could definitely

benefit from some of the rights provided in the Minimum Standards Directive, such as access to

victim support services, right to protection (of their privacy), ...

4. Vulnerable victims

It can not be denied that the provisions on vulnerable victims has been improved compared to the

poor provision in the Framework Decision. When it comes to defining vulnerable victims, various

references were made in the preamble. Next to the victims mentioned in article 18, point 13 of the

Recital refers to victims of gender, race hate or other bias crimes, victims of terrorism. Point 17 of the

Recital adds victims of child abuse, sexual exploitation and child pornography and point 18 of the

Recital mentions victims of organised crime.



In order to ensure consistency, it might be a good idea to harmonise these lists and to simply include

them in article 18. This way, the provision would be as inclusive as possible. Finally, it should be

suggested suggest to widen the scope of vulnerable victims even more to for example sexual

minorities, migrants and refugees,… These categories could also benefit from a more individualised

approach.

4. Infringement procedures

As mentioned before, it was added in article 3 that the victim should be provided with information

on any procedures for complaints if their rights were not respected. Unlike the Framework Decision,

the Minimum Standards Directive does foresees the possibility to tackle possible infringements of

the rights provided in it, and this is definitely a positive evolution.

5. Hidden agenda?

While evaluating the Framework Decision, it was pointed out that the instruments mainly seemed to

focus on law enforcement rather than looking out for the protection and support of the victim. The

title of the Framework Decision, which mentioned “standing in criminal proceedings”, already

suggested the intention of regulating the position of the victim only insofar as this could be helpful

for the procedure.

The Minimum Standards Directive hints a change of perspective, focusing on “the rights, support and

protection of victims” as such. This perspective is also reflected in the instrument itself. The

possibility for the victim to participate in the proceedings has been boosted. The same can be said

about the support and protection of victims: the right to access to victim support services has been

widened, the training of practitioners is emphasised and expanded and a lot of attention is given to

particularly vulnerable victims. It seems fair to conclude that the Minimum Standards Directive

without doubt putted more effort in safeguarding the rights, support and protection of the victim.

We should keep in mind though, that the current version is a Commission proposal. During the

adoption procedure, the Council will still have a say as to the content of the Minimum Standards

Directive. Given the sometimes far-reaching measures that will be needed from the Member States,

it is likely that the final text will be a compromise between the opposing approaches of both

institutions.

C. Conclusion

The Minimum Standards Directive should definitely be seen as an improvement for the protection of

victims’ rights. A lot of essential rights are guaranteed in a much more comprehensive and detailed

manner compared to the 2001 Framework Decision. The instrument firstly and mostly means to

ensure the protection and satisfaction of their needs and not merely their cooperation with the

justice systems. This in itself is without doubt a very positive evolution.

This being said, it should also be remarked that the open formulation typical for the Framework

Decision, is found back in several provisions of the Minimum Standards Directive. After the 2001

Framework Decision and the 2004 Compensation Directive, the Commission could see with its own

eyes that the use of vague wording is extremely harmful for an effective implementation and does

not bring any good to victims’ rights. Therefore, the least to say is that it is remarkable, if not totally

unacceptable, for the Commission to maintain the exact same vague language as used in the

Framework Decision in some of the provisions of the Minimum Standards Directive. Especially since

some of these maintained vague provisions concern essential elements of victims’ rights protection.

The concern with the position of cross-border victims for example, is the main driver for European



competence in the protection of victims of crime and it is inexplicable why the Commission decided

to maintain the Framework Decision’s provision on this matter, that showed to be insufficient to

improve the problematic position of cross-border victims.

The Victims’ Rights Package was announced as containing promising instruments that would finally

really respond to the needs of victims, putting victims at the heart of the criminal justice agenda of

the EU. Bearing this promise in mind, the Minimum Standards Directive still anticlimaxes on different

levels. Hopefully, the final version of the Minimum Standards Directive will have what it takes to

actually ensure proper and effective action on the rights of victims.



PART 4. GENERAL CONCLUSION

OBSERVATIONS

Over the last decades, the playing field for offenders has expended from the local or national to the

global level, leading to new forms and manifestations of crimes. The traditional national systems of

criminal prosecution and security policies showed to be unsatisfactory to cope with these new

dimensions of crime. Especially the protection of cross-border victims, persons falling victim in

another Member State than their State of residence, seemed problematic. As the protection offered

by the national legislations of the Members States was limited to the territory of the States, the

cross-border victim could not get access to justice once they returned home. He also had difficulties

getting access to justice in the State where the crime was committed, because of language barriers

and lack of understanding of the host State’s legal system. As a consequence access to victims’ rights

was often illusory.

In addition, the national legislation schemes displayed large differences between them. Some

Member States offered more extensive protection to victims’ needs than others. This lack of

convergence in the Member States hindered the mutual recognition of judicial decisions, necessary

to create the area of freedom, security and justice. In order to guarantee this mutual recognition,

similar protection of victims throughout the entire EU was needed.

The problems concerning cross-border victims and concerning the inconsistent protection of victims

within Europe asked for action at EU level. Additional measures had to be taken to fulfil the needs of

all victims and to ensure similar levels of protection throughout the EU.

The EU intervention in the field of victims’ rights started with the introduction of the Treaty of

Amsterdam, even though this Treaty did not contain a clear legal basis for the EU to act in the field of

victims’ rights. This led to the adoption of two instruments in the pre Lisbon area: the 2001

Framework Decision, concerning procedural victims’ rights in general and the 2004 Compensation

Directive, dealing specifically with the right to compensation for victims all across Europe. The in-

depth analysis of both instruments has shown that they eventually did not live up to the

expectations. The paper has presented different critical remarks concerning the elements underlying

the disappointing results of both instruments. It was concluded that the situation of victims in the

criminal proceedings was not improved, nor was the right to compensation for the injuries the victim

suffers because of the crime safeguarded. Nevertheless, the needs for victims to receive adequate

protection within the entire EU, was still a pending issue.

This concern led to the adoption of new measures aimed to once again guarantee the protection of

victims’ needs and rights. The Treaty of Lisbon gave the initial impetus to the new area of victims’

rights. This was complemented with the Victims’ Rights Package, setting in motion the adoption of

new legal instruments concerning victims’ rights.

In the second main part of the paper, consideration was given to the protection of victims’ rights in

the EU post Lisbon. Firstly, the EPO-Directive, adopted in 2011, was analysed. Next, the Minimum

Standards Directive was considered. Since both instruments have not yet been implemented, they

were subject to a more limited analysis compared to the pre Lisbon instruments. After reviewing

these instruments, a number of critical remarks were presented. It was found that both instruments

showed several weaknesses in the way they were drafted. These flaws will inevitably influence the



level of implementation in the Member States. For this reason, it is uncertain whether the new

instruments will serve as a true added value to the protection of victims’ rights within the EU.

ANSWERING THE RESEARCH QUESTION

The research question of this LL.M.-paper concerned the adequacy of the protection of victims’ rights

in criminal matters within the EU. In order to formulate an answer to this question, the paper

discussed and evaluated the different relevant legal instruments regulating victims’ rights in the EU.

This research allowed to formulate an answer to the research question.

The protection of victims’ rights in criminal matter within the EU is found inadequate. The available

instruments pre Lisbon could not convince victims and interested parties of their added value and

the protection of victims’ rights pre Lisbon should without doubt be considered inadequate. The

instruments introduced in the post Lisbon area do not bode well for the future either. When it comes

to the EPO Directive, it was shown that the instrument most likely will have a very limited added

value. The Minimum Standards Directive is more promising as to the position of crime victims. Still, it

contains several vague provisions regarding key elements of victims’ rights protection. Although it is

impossible to predict how the implementation of the new instruments will proceed, the perspectives

for the future of victims’ rights are rather negative. Once implemented, the new instruments will

probably still not provide the added value needed to ensure adequate protection of victims’ rights.

RECOMMENDATIONS

After discussing, evaluating and reviewing the instruments that have been in adopted within the EU

over the last decades, the paper will conclude with some recommendations. The recommendations

relate to tree levels of the victims’ rights policy within the EU. All tree levels should be taken into

account in order to create adequate instruments to protect victims’ rights.

Preparatory work

Ensuring adequate protection of victims’ rights starts with the preparation of the legal instruments.

Before drafting the instrument, it is important that the EU-legislator knows what the instrument

should contain. In order to gain knowledge an awareness on how to effectively improve the current

situation, various and uncoordinated evaluation studies should be avoided. Consultation of all the

interested parties is crucial.

It should be pointed out that, next to the general instruments that were researched in this paper,

there are also more specific instruments regulating victims’ rights available. The most important

being instruments regarding the position of victims of human trafficking125

, sexual abuse126

,

terrorism127

,…

125 Council Directive 2011/36/EU on preventing and combating trafficking in human beings, and protecting victims [2011] OJ

L 101/1. 126

Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual

abuse and sexual exploitation of children and child pornography [2011] OJ L 335/1. 127

Council Framework Decision 2008/919/JHA of 28 November 2008 amending Framework Decision 2002/475/JHA on

combating terrorism [2008] OJ L 330/21.



These instruments also impose obligations on the Member States and ensure the protection of

certain rights. Before drafting a new instrument, the EU-legislator should make it his duty to take a

step back and to look at the bigger picture. He should call into question every aspect of the new

instrument and compare it with what is already out there. By seeing every instrument in the context

of all instruments regulating comparable issues, overlaps are avoided and the instrument will be

much more effective.

Drafting the instrument

With regard to the drafting of instruments, it is in the first place important that the drafters take into

account the observations made while preparing the instruments. The identified needs, shortcomings,

sore points and difficult areas in the current system, should be accentuated in the new instruments

in order to correct them. The instruments that have been evaluated in this paper demonstrated that

some concerns uttered during the preparatory work, were not reflected in the drafting of the

instrument. This off course does no good to the added value of the instrument.

Next, the instruments that were evaluated in this paper have shown that it is absolutely useless to

include vague and general provisions, that do not prescribe concrete obligations, in victims’ rights

instruments. Especially when it comes to key elements of the instrument, it is highly recommended

to adopt clear-cut terms concerning their interpretation. Ambiguous drafting of instruments leads to

Member States taking no action to comply with the instrument or taking action that is not suitable to

really improve the position of the victims in practice.

This leads to the concern regarding the hidden agenda of the drafter of the instrument. It is

absolutely imperative that his main concern is the improvement of the position of victims in criminal

proceedings and not the preserving of his sovereignty in law making. The paper illustrated that

Member States are still very reluctant to let go of their own national legislation in order to welcome

new EU-legislation in the field of victims’ rights and probably in the field of criminal law in general.

Implementing the instrument

When it comes to implementing the instruments, two elements should be kept in mind: the methods

used to assess the implementation level and the guidance and assistance of the Member States

during the implementation procedure and after.

First of all, the notion “measures to implement a legal instrument” should not be restricted to

measures of formal legislation. A successful codification of victims’ rights can only be obtained by

way of a complicated process of multi-level implementation. The transposal of the instrument into

national legislation can not be the only criterion to assess the implementation level. In addition to

the consultation of Member States, NGOs, the judiciary, prosecutors, probation officers, service

providers, police and law enforcement officials, and of course victims and their families, should play

an important role in evaluating the implementation of the instrument. Only their combined and

concerted efforts can safeguard a satisfactory implementation level. That way, one can form a

complete picture of the added value of the instrument for the protection of victims’ rights.

Moreover, the importance of “soft skills”, such as training and awareness, should be underlined.

Those implementing the instrument should pay attention to the effective delivery of assistance

programmes and of countering the effects of secondary victimisation. The need for extra-judicial

measures to complement those provided within the context of the justice system can not be

underestimated.

The Member States’ implementation reports containing the measures taken to comply with the

instrument, should also be drafted by independent parties and not by the persons who are



responsible for implementation. In addition, the Commission should have access to all information

available regarding the implementation of an instrument and should not be restricted to the content

of Member States’ reports.

Secondly, it could be considered to set up an EU agency to coordinate and monitor the

implementation of the instrument and the requirements laid down in the instrument. Such an

agency could smooth the implementation process by way of managing the transposal processes in

the different Member States without interfering with the Member States’ rights to choose the forms

and methods for implementation. This way, a more consistent implementation of the instruments

can be established, guaranteeing an equal level of protection for all victims throughout the EU.

Moreover, such an agency could truly bring to life the obligations contained in the instruments. It

can be a forum for dialogue, a venue for the Member States to turn to when they are doubtful about

the interpretation of certain obligations, if they want to compare the execution of obligations in

other Member States, and so on. It can also suggest the Member States how best to execute

obligations, based on best practices.

In particular, the agency could be important for the position of cross-border victims. It could arrange

meetings and lectures to improve coordination of cross-border operation and procedures between

all the relevant bodies involved in supporting victims.

The agency could also be a mouth piece for remarks, suggestions and comments from the Member

States towards the Commission. Moreover, it can see the overall picture of different legal

instruments regulating victims’ rights. That way, overlaps or gaps can easier be identified.

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