Impact of Directive 2012/29/EU on the Italian System for Protecting Victims of Crime in Criminal Proceedings
© Springer International Publishing Switzerland 2015Stefano Ruggeri (ed.)Human Rights in European Criminal Law10.1007/978-3-319-12042-3_15
The Impact of Directive 2012/29/EU on the Italian System for Protecting Victims of Crime in Criminal Proceedings
Department of Law, University of Messina, Piazza Pugliatti 1, 98100 Messina, Italy
The evolution of organized crime and the serious consequences it has on the social fabric have gradually led both national legislators and the EU institutions to introduce measures aimed not only at repressing this phenomenon but also at protecting the victims of organized crime. This paper analyzes the impact of the recent Directive 2012/29/EU on the Italian legal system. The issues covered relate, in particular, to identification of the victim; the right to information, which needs to be balanced against the confidential nature of investigations; powers allowing victims to see their rights respected; and, finally, the institutions’ role in providing direct assistance and support for these vulnerable persons.
KeywordsAssistance servicesFamilyOrganized crimeProtection of the victimReviewRight to informationRole of the victimVictim
Organized crime is one of the main threats to the internal security of the EU and the fundamental freedoms of its citizens. Traditionally, organized crime means a form of delinquency organized in a stable manner, with a hierarchical framework and a common goal, which is expressed in the commission of various criminal activities.1 Usually, the ultimate aim of these organizations is financial gain, but they may also be interested in controlling the territory and penetrating the various centers of power of the Member States. Significantly, in 1976, the United Nations, identifying the phenomenon of organized crime, realized its devastating social consequences and highlighted:
the large-scale and complex criminal activity carried on by groups of persons, however loosely or tightly organized, for the enrichment of those participating and at the expense of the community and its members.
The vastness of this criminal phenomenon, which especially in recent decades has evolved from an exclusively regional phenomenon to become a global problem, necessarily involves a response both from individual jurisdictions as well as transnational coordination, in order not only to suppress the phenomenon but also to provide tools to support the victims of organized crime.2
The specific nature of this criminal phenomenon, however, necessitates different regulations to those aimed at protecting victims of other forms of crime. The need for an approach focusing on the protection of victims already becomes apparent when we examine the texts of criminal legislation dealing with such forms of crime. An emblematic case is Article 416-bis of Italy’s Criminal Code (hereafter CC-Italy), which deals with mafia association and defines such criminal organizations on the basis of the fact that they rely on the power of intimidation and the associative bond—elements that necessarily have an impact on their victims.
The victims of organized crime are particularly vulnerable not only to harm resulting from the fact of the crime itself but also to so-called secondary victimization,3 which is a second phase of personal harm committed by the institutions, social workers or unwanted media exposure. However, in our opinion, secondary victimization in the phenomenon of organized crime does not represent a secondary and eventual aspect of the offense, instead common to other crimes. Especially with regard to the crime of mafia-type criminal association, such harm not only stems from the fact of the crime but also occurs during the investigation. In fact, the intimidating strength of the criminal association may also emerge during the trial, in other words even when the crime itself has already been committed, making it necessary to protect the victim within the criminal process.
The EU institutions have given attention to victims of crime since the Council Framework Decision 2001/220/JHA, which established minimum rules for the assistance of victims of crime before, during and after criminal proceedings. According to these, the Member States had to ensure that the victims’ dignity was respected and that their rights were recognized throughout the proceedings.4 We would have to wait, however, more than 10 years for the enactment of more comprehensive EU regulations, seen recently in Directive 2012/29/EU. The object of this study is to analyze the impact of the latter on the Italian legal framework.
2 Concept of a Victim of Crime
Preliminarily, we should start by focusing on the notion of the victim of crime and then try to highlight, in light of what was mentioned above, the features characterizing the victims of organized crime. In our view, it is crucial to establish a clear definition of the concept of victim, since this allows us to circumscribe the scope of legislation regarding their protection. In this regard, we find significant differences between international, supranational and national sources.
In fact, the concept of victim is very sensitive to the objectives from time to time targeted by each specific regulatory measure. Thus, Declaration A/RES/40/34, adopted by the UN General Assembly on 29 November 1985 with regard to the basic principles of justice for victims of crime and abuse of power, defines victims as
persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power.5
This definition was also adopted in the Palermo Convention of 2000 against Transnational Organized Crime, which provides a general definition that does not distinguish between victims of organized crime and victims of crime in general.6
In Italian law, there is a tendency to equate the victims of organized crime to victims of other serious forms of crime such as terrorism. However, this equalization does not seem to be reflected in practice. Thus, in Italy, the Council of State, in an advisory capacity, in Opinion no. 1197/2012, stressed, with regard to the organized mafia crime, that
there are profound differences, both sociological and structural, between terrorism and organized crime, differences that influence the different type of protection given by the State to the victims of each phenomenon.7
In fact, solidarity with victims of the mafia is also seen as a preventive measure,8 aimed at helping those who work in areas controlled by the mafia to come out of isolation, helping to break the conspiracy of silence and submission characterizing such areas and encouraging associates to “rebel” against Mafia pressure, in the belief that the state should not leave citizens alone but should provide support to families whose members are affected by mafia attacks.
In the European context, the definition of a victim of crime has undergone a dramatic evolution since the first definition was given in Framework Decision 2001/220/JHA. According to Article 1(a) of this legislative measure, the victim was solely
a natural person who has suffered harm, including physical or mental injury, emotional suffering or economic loss, directly caused by acts or omissions that are in violation of the criminal law of a Member State.9
Directive 2012/29/EU considerably expanded the scope of protection by providing a definition of victim that includes not only an individual who has suffered physical, mental, emotional or economic harm as a result of crime but also the family members of a person whose death was caused directly by a crime and who have therefore consequently suffered an injury. In Directive 2012/29/EU, we can probably see the influence of the European Court of Justice’s consolidated case law on the issue of the vulnerable victim.10
Already this extended scope of protection seems to pose problems of compatibility of the Italian system with recent supranational legislation. Therefore, while on one hand the definitions both of the Declaration of the General Assembly A/RES/40/34 and of Framework Decision 2001/220/JHA are very similar, since they are aimed at being adaptable to the various legal systems of the Member States, on the other hand, Directive 2012/29, albeit also structured to embrace more than one system, is innovative insofar as it also includes family members in the category of victims. In fact, compared to the provisions of Article 2(1)(b) of the Directive, Italian criminal law, at both substantive11 and procedural levels,12