Topic 2 Application of the Directive 2012/29/EU across the EU (harmonization and recent national jurisprudence)

‘This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.’ Article 3(2)

Case C-668/15, Jyske Finans

Refused to attribute any significance to the overlaps between ethnic origin and nationality

Case C-54/07, Feryn

There does not need to exist an identifiable victim for a case to be brought to Court

“The fact that an employer declares publicly that it will not recruit employees of a certain ethnic or racial origin, something which is clearly likely to strongly dissuade certain candidates from submitting their candidature and […] hinder their access to the labour market, constitutes direct discrimination”

Would a refugee or asylum seeker be able to rely on this Directive in order to complain that they are discriminated against?

  •  

Nationality ≠ Correlation between a refugee/asylum seeker and their ethnicity?

  • The Equality Ombudsman v. Skarets Fastigheter Aktiebolag (Swedish Court of Appeal case)
    • close correlation between a person being a refugee/asylum seeker and their ethnicity

  • Article 1 – Objectives
  1. To ensure that victims of crime receive appropriate information, support and protection and are able to participate in criminal proceedings.
  2. That victims are recognized.
  3. That victims are treated in a respectful, sensitive, tailored, professional and non-discriminatory manner regardless of victims’ nationality or residence status.
  4. By victim support or restorative justice services or a competent authority, operating within the context of criminal proceedings.                              
  5. The child’s best interests shall be a primary consideration and shall be assessed on an individual basis. A child-sensitive approach, taking due account of the child’s age, maturity, views, needs and concerns, shall prevail. The child and the holder of parental responsibility or other legal representative, if any, shall be informed of any measures or rights specifically focused on the child.
  • Article 2 – Definitions
  • ‘victim’ means:
  1. a natural person who has suffered harm, including physical, mental or emotional harm or economic loss which was directly caused by a criminal offence;
  2. family members of a person whose death was directly caused by a criminal offence and who have suffered harm as a result of that person’s death;
  • ‘family members’ means the spouse, the person who is living with the victim in a committed intimate relationship, in a joint household and on a stable and continuous basis, the relatives in direct line, the siblings and the dependants of the victim;
  • ‘childmeans any person below 18 years of age;
  • ‘restorative justice’ means any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the criminal offence through the help of an impartial third party.
  • Article 3 – Right to understand and to be understood
  1. From the first contact and during any further necessary interaction they have with a competent authority in the context of criminal proceedings [Art. 3 (1)]
  2. In simple and accessible language, orally or in writing. [Art. 3 (2)]
  3. Right to be accompanied by a person of the victim’s  choice in its first contact with the authorities if assistance is needed due to the impact of the crime or if the victim has difficulties understanding proceedings or to be understood.
  4. Communication safeguards apply to the following rights of the victims: 
  • Articles 4 – Right to receive information
  • Article 5 – Right to receive written acknowledgement of the complaint and right to receive a translation of the written acknowledgement, right to make the complaint in a language that they understand
  • Article 6 – Right to receive information about their case
  • Article 7 – Right to interpretation and translation
  • Article 4 – Right to receive information from the first contact with a competent authority
  • All victims of crime have a right on first contact with the competent authority, without unnecessary delay, to the following information:
  • a) the type of support they can obtain and from whom → Link to Art. 8, access to victim support services
  • b) the procedures for making complaints and their role → in line with Recital 20
  • c) how they can obtain protection, including protection measures → Link to the European Protection Order and mutual recognition of protection measures in civil matters.
  • d) access to legal advice, legal aid and any other sort of advice;
  • e) access to compensation
  • f) access to interpretation and translation
  • g) access to available special measures, if they are resident in a Member State other than that where the criminal offence was committed 
  • h) available complaints where their rights are not respected 
  • i) contact details for communications about their case;
  • j) available restorative justice services;
  • k) Available reimbursement of expenses of their participation in the criminal proceedings.

To make a formal complaint, if needed with linguistic assistance and receive written acknowledgement [Art. 5]

To receive information about the case’s progress [Art. 6] → Link to Article 11 (Rights in the event of a decision not to prosecute)

Right to interpretation and translation [Art. 7] Conditions: 

  • For victims with a formal role in proceedings
  • Upon request of the victim and decision taken by the authority
  • Free of charge and for a broad set of procedural actions: it covers contacts with investigative and judicial authorities from first interview/hearing throughout investigation to trial. [Recital 34]

Right to access victim support services [Article 8] →Link to Article 9 Support from victim support services. “Member States shall ensure that access to any victim support services is not dependent on a victim making a formal complaint with regard to a criminal offence to a competent authority”. [Article 8 (5)]

Right to be heard [Article 10] → Link to Article 25, training for practitioners, judges and prosecutors handling the questioning of victims]

Right to a review of a decision not to prosecute [Article 11]

Protection from secondary and repeat victimisation, from intimidation and from retaliation in restorative justice services. [Article 12].

Right to legal aid [Article 13].

Right to reimbursement of expenses [Article 14]

Right to the return of property  [Article 15]

Right to decision on compensation from the offender in the course of criminal proceedings [Article 16]