© Springer International Publishing Switzerland 2015Stefano Ruggeri (ed.)Human Rights in European Criminal Law10.1007/978-3-319-12042-3_11
New Perspectives for the Protection of the Victims in the EU
Department “Seminario giuridico”, University of Catania, Via Gallo no. 24, Catania, Italy
This paper deals with protection of victims of crime in criminal proceedings and is focused on Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime, also in consideration of former FD 2001/220/JHA on the standing of victims in criminal proceedings.
KeywordsChild victimsCriminal proceedingsIndividual assessmentMeasures of protectionSpecial measuresVictims of crime
1 The Victim in the AFSJ
The legal basis of the EU action for the protection of victims of crime lies in Article 82(2)(c) TFEU. This provision grants the EU the competence to legislate, by means of directives, for the establishment of minimum rules concerning the rights of victims while taking into account the differences between the legal traditions and systems of the Member States.1
However, already much time before the adoption of the Treaty of Lisbon, FD 2001/220/JHA on the standing of victims in criminal proceedings was adopted under the former third pillar. In fact, this FD—the very first piece of “hard law” about victims under international law2—has given the Court of Justice the chance to deal with the issue concerning the influence of third-pillar measures on domestic law, in the well-known Pupino ruling3 on harmonious interpretation of EU law.4
Although the FD was not far-reaching, it was not intended to deal with “cross-border victims” only (i.e., nonnational and nonresident in the Member State where the crime has been committed). In any case, the FD represented the first move to initiate a debate on the general issue concerning the central role of victims in criminal justice systems.5
2 Directive 2012/29/EU
Following the Stockholm Programme6 and the Resolution of the Council of 10 June 2010 on a Roadmap for strengthening the rights and protection of victims, in particular in criminal proceedings, the debate on the role of victims in criminal proceedings resulted in Directive 2012/29/EU establishing minimum standards on the rights, support and protection of victims of crime and replacing Council Framework Decision 2001/220/JHA.7
This Directive is a wide-ranging measure, which aims at establishing a general statute for victims of crime under the EU while addressing the specific issue of the protection of vulnerable victims.8
Although the Directive reproduces provisions already foreseen in the old FD, it has the merit to organize other specific provisions about victims foreseen in legal acts concerning the repression of particularly serious crimes. In this regard, we believe that it is appropriate to draw a clear-cut distinction between the protection of victims of crime (already committed) and preventive protection, the last one ruled by substantive criminal law that is lately increasingly oriented to put the victim at the center of the choices of incrimination.9 A blurring distinction between the protection from the risk of primary victimization (i.e., the risk to become a victim of crime) and the protection from the risk of secondary and repeat victimization (before and during criminal proceedings) may result in unbalanced choices in social-preventive terms.
The central role of the victims of crime needs also to be balanced with the protection of the rights of the accused, on which the EU is legislating in parallel, following the Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings (currently at its third stage).10
3 Right to Participation, Information and Support in Criminal Proceedings
Right to participation of victims in criminal proceedings and their protection against harm that may derive from the same proceedings represent the core issue of the Directive, whereas information and support provide the necessary instruments for the effectiveness of participation and protection.
Participation implies various rights that rely on national legislation. The key provision on participation is Article 10, which reproduces Article 3(1) of the FD: the victim is granted the right to be heard during criminal proceedings and to provide evidence. However, it is made clear in the Directive that the applicable procedural rights are the national ones. This is a reserve in favor of national legislation in line with the interpretation of the FD given by the Court of Justice in the Katz case. During criminal proceedings initiated by the victim in Hungary, the judge denied the victim the possibility to be heard as a witness since the prohibition that inhibits the public prosecutor from testifying must be applied to the private prosecutor too. The Court of Justice affirmed that the FD is to be interpreted as not obliging a national court to permit the victim to be heard as a witness in criminal proceedings instituted by a substitute private prosecution. However, in the absence of such a possibility, it must be possible for the victim to be permitted to give testimony, which can be taken into account as evidence.11 Thus, the right of the victim to be heard—the core of the guarantee of participation—is of procedural nature.
In another case concerning the interpretation of the FD, the Court of Justice stated that the FD must be interpreted as not precluding the mandatory imposition of an injunction to stay away for a minimum period, provided for as an ancillary penalty by the criminal law of a Member State, on persons who commit crimes of violence within the family, even when the victims of those crimes oppose the application of such a penalty. This implies that the right to be heard does not grant the victim any power to influence the assessment of the penalty and its quantum. In the same case, the Court specified that Member States, having regard to the particular category of offenses committed within the family, can exclude recourse to mediation in all criminal proceedings relating to such offenses. Thus, the victim does not derive from the EU measure (the then FD and the current Directive) any prerogative affecting substantive criminal law.12
Anyway, private prosecution is a possibility that can be granted only according to national legislation. Domestic law is also relevant in relation to the right of the victim to ask for a review of the decision not to prosecute: the procedural rules for such a review shall be determined by national law (Art. 11). Also, the right to obtain a decision on compensation by the offender in the course of criminal proceedings, within a reasonable time, is granted except where, in certain cases, national law provides for such a decision to be made in other legal proceedings (Art. 16).
Under the Directive, participation is rightly considered as to include also the access to restorative justice services. On this issue, Art. 12 is more detailed than the corresponding provision under the FD (Art. 10): relevance is given to the measures that Member States shall take to safeguard the victim from secondary and repeat victimization, from intimidation and from retaliation. It is also required to verify the interest of the victim to restorative justice services and that the victim is provided with full and unbiased information about the relevant process and the potential outcomes, as well as information about the procedures for supervising the implementation of any agreement.
The right to understand and to be understood (Art. 3), the right to receive information from the first contact with a competent authority (Art. 4), the right to receive (or not) information about the case (Art. 6), the right to interpretation and translation (Art. 7) are some of the most important safeguards for participation to criminal proceedings.
On the other hand, the right to access victim support services (Art. 8) and support from victim support services (Art. 9), to be granted before, during and after criminal proceedings, are meant to protect the victim regardless of the proceedings, on the basis of elementary obligations of social solidarity.13
4 Right to Protection in the Proceedings
Right to protection is provided under Chapter 4 of the Directive. Under Art. 18, Member States shall ensure that measures are available to protect victims and their family members from secondary and repeat victimization, from intimidation and from retaliation, including against the risk of emotional or psychological harm, and to protect the dignity of victims during questioning and when testifying. When necessary, such measures shall also include procedures established under national law for the physical protection of victims and their family members. This kind of measures may have a criminal or noncriminal nature and may be applied both during the pretrial phase and after the sentence. Directive 2011/99/EU on the European protection order14 deals with measures of criminal nature: mutual recognition applies to protection measures adopted by national judges in favor of victims, or potential victims, of crimes.15
As far as protection against secondary victimization is concerned, the key provisions of the Directive are those regarding protection of victims that have specific protection needs. The FD already outlined this category of victims, also dealt with by Council of Europe Recommendation Rec(2006)8 of the Committee of Ministers on assistance to crime victims and by other specific measures adopted at EU and international levels relating to repression of very serious crimes, in particular Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims (replacing the FD 2002/629/JHA)16 and Directive 2011/93/EU on combating the sexual abuse and sexual exploitation of children and child pornography (replacing the FD 2004/68/JHA).17
It is debated which requirements must be satisfied in order to establish the vulnerability of a victim; in particular, what is debated is whether this status must be connected to the personal conditions of the victim (minor age, mental illness, disability) or to the type of crime committed against the victim or to both of these factors, occurring together or separately. Council of Europe Recommendation Re(2006)8 of the Committee of Ministers seems to be oriented towards this last approach. On the other hand, the first version of the Directive (May 2011)18 adopted a different approach. First of all, two couples of categories of victims were a priori