Topic 3 Case study: In the absence of harmonization/ Victims’ Right Directive

  • Request for a preliminary ruling from the Tribunal of Bari
  • In this case, the composition of the panel of judges has been changed during the trial and the victim was requested to testify again.
  • Article 16 (compensation within a reasonable time)
  • The ECJE ruled that fresh examination of the victim in the event of a change in the composition of the panel of judges before which he or she originally gave evidence does not, in itself, mean that a decision cannot be given on compensation for that victim within a reasonable time. (§ 48)
  • Article 17 – Rights of victims resident in another Member State
  • Member States shall ensure that :

the competent authority takes a statement from the victim immediately after the complaint

the authorities have recourse to the extent possible to the provisions on video conferencing and telephone conference calls laid down in the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union of 29 May 2000 (17) for the purpose of hearing victims who are resident abroad.

The victim may lodge a complaint in his/her State of residence:

  1. a) if the victim was not able to do so in the State where the crime was committed (g. due to administrative, legal or personal constraints)
  2. b) if the victim simply does not wish to do so in case of serious offences.

the complaint must be transmitted from the State of residence to the State where the crime occurred without delay (unless  the competent authorities in the State of residence have already exercised their national competence to prosecute).

  • Protection of victims

Right to protection [Article 18]

  • Without prejudice to the rights of the defence, Member States shall ensure that measures are available to protect victims and their family members from secondary and repeat victimisation, 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.

Right to avoid contact between victim and offender [Article 19]

  • 1. Member States shall establish the necessary conditions to enable avoidance of contact between victims and their family members, where necessary, and the offender within premises where criminal proceedings are conducted, unless the criminal proceedings require such contact.
  • 2. Member States shall ensure that new court premises have separate waiting areas for victims.
  • Article 18 (protection): The ECJE ruled that it does not follow from the wording of that article that the EU legislature included, among the measures designed to protect the victim of a criminal offence, provision for limiting examination of the victim to a single occasion during the judicial proceedings. (§ 51).
  • “Consequently, it should be noted that Article 18 of Directive 2012/29 does not in principle preclude, in the event of a change in the composition of the panel of judges, the victim of a criminal offence being examined again by that panel at the request of one of the parties to the proceedings”. (§ 54)
  • Article 18 (protection): “However, it follows from the case-law of the European Court of Human Rights that, in order to determine whether it is possible to use the written record of a victim’s statement in evidence, Member States should examine whether hearing the testimony of the victim is likely to be decisive for purposes of the defendant’s trial and to ensure by means of strong procedural safeguards that the taking of evidence in the context of criminal proceedings does not prejudice the fairness of those proceedings for the purposes of the second paragraph of Article 47 of the Charter or the rights of the defence for the purposes of Article 48(2) of the Charter”. (§ 55)
  • The referring court should therefore examine whether, in the case in the main proceedings, particular circumstances such as those referred to in the preceding paragraph might lead to the victim of the criminal offence in question not being required to testify again”. (§ 56)

Right to protection during criminal investigations [Article 20]

  • Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that during criminal investigations:
  1. a) interviews of victims are conducted without unjustified delay after the complaint with regard to a criminal offence has been made to the competent authority
  2. b) the number of interviews of victims is kept to a minimum and interviews are carried out only where strictly necessary for the purposes of the criminal investigation
  3. c) victims may be accompanied by their legal representative and a person of their choice, unless a reasoned decision has been made to the contrary
  4. d) medical examinations are kept to a minimum and are carried out only where strictly necessary for the purposes of the criminal proceedings.

 Right to protection of privacy [Article 21]

  • Measures to protect the privacy may be taken, including personal characteristics of the victim, and images of victims and of their family members.
  • In case of a child victim, all lawful measures should be taken to prevent public dissemination of any information that could lead to the identification of the child.
  • In order to protect the privacy, personal integrity and personal data of victims, Member States shall, with respect for freedom of expression and information and freedom and pluralism of the media, encourage the media to take self-regulatory measures. → ethical conduct towards victims

Article 22: – Individual assessment of victims to identify specific protection needs

1)timely and individual assessment, to identify specific protection needs of the victim 

2)determination whether and to what extent the victim should benefit from special measures (provided for under Articles 23 and 24), due to their particular vulnerability to secondary and repeat victimisation, to intimidation and to retaliation and due to: a) the personal characteristics of the victim b) the type or nature of the crime c) the circumstances of the crime.

  • Victims of: → terrorism → organised crime → human trafficking → gender-based violence → violence in a close relationship → sexual violence → exploitation or hate crime → victims with disabilities shall be duly considered.
  • Child victims shall be presumed to have specific protection needs due to their vulnerability to secondary and repeat victimisation, to intimidation and to retaliation.
  • Individual assessments shall be carried out with the close involvement of the victim and shall take into account their wishes including where they do not wish to benefit from special measures. If the elements that form the basis of the individual assessment have changed significantly, Member States shall ensure that it is updated throughout the criminal proceedings.
  • Article 22 (individual assessment): “It should be added that, in the event of it being decided that the victim should testify before the panel of judges in its new composition, the competent national authorities must, under Article 22 of Directive 2012/29, conduct an individual assessment of that victim to identify his specific protection needs and, where appropriate, to afford him the protection measures provided for in Articles 23 and 24 of that Directive”. (§ 57)
  • “The referring court must therefore ensure that the victim in the main proceedings has no specific protection needs during the criminal proceedings”.
  • Article 23 – Right to protection of victims with specific protection needs during criminal proceedings
  • A. During criminal investigations the following measures shall be available:
  1. interviews with the victim being carried out in premises designed or adapted for that purpose;
  2. interviews with the victim being carried out by or through professionals trained for that purpose;
  3. all interviews with the victim being conducted by the same persons unless this is contrary to the good administration of justice;
  4. all interviews with victims of sexual violence, gender-based violence or violence in close relationships, unless conducted by a prosecutor or a judge, being conducted by a person of the same sex as the victim, if the victim so wishes, provided that the course of the criminal proceedings will not be prejudiced.
  • B. During court proceedings the following measures shall be available: 
  1. measures to avoid visual contact between victims and offenders including during the giving of evidence, by appropriate means including the use of communication technology;
  2. measures to ensure that the victim may be heard in the courtroom without being present, in particular through the use of appropriate communication technology;
  3. measures to avoid unnecessary questioning concerning the victim’s private life not related to the criminal offence; and
  4. measures allowing a hearing to take place without the presence of the public.

Article 24 – Right to protection of child victims during criminal proceedings

  1. In addition to the measures provided for in Article 23;
  2. a) in criminal investigations, all interviews with the child victim may be audiovisually recorded and such recorded interviews may be used as evidence in criminal proceedings
  3. b) in criminal investigations and proceedings, in accordance with the role of victims in the relevant criminal justice system, competent authorities appoint a special representative for child victims where, according to national law, the holders of parental responsibility are precluded from representing the child victim as a result of a conflict of interest between them and the child victim, or where the child victim is unaccompanied or separated from the family;
  4. c) where the child victim has the right to a lawyer, he or she has the right to legal advice and representation, in his or her own name, in proceedings where there is, or there could be, a conflict of interest between the child victim and the holders of parental responsibility.

The procedural rules for the audiovisual recordings referred to in point (a) of the first subparagraph and the use thereof shall be determined by national law.

  1. Where the age of a victim is uncertain and there are reasons to believe that the victim is a child, the victim shall, for the purposes of this Directive, be presumed to be a child.
Problematic access of victims of crime’s access to qualified professionals
  • This is relevant for professionals in support services and professional translators and interpreters. There is a lack of professional translators and interpreters (Article 5). 
  • Access to certain rights – interpretation and translation (Article 7) and the rights of victims’ residing in another Member State (Article 17) – is hampered by practical difficulties.
  • Financial issues had a particular impact on access to adequate support services (Article 8) and the right to legal aid (Article 13).
  • Training of practitioners who work with victims of crime is necessary in order to implement  Articles 6 (receive information about a case), 10 (right to be heard) and 22 (individual assessment) and the identification and protection of victims with special protection needs.
Main challenges in the protection of victims in EU
  • Victims of domestic violence; provision of effective assistance is hindered by many practical and legal obstacles. The pandemic situation became a worsening factor for victims with special needs.
  • Terrorism; remains a major concern in many EU states
  • Migrants and asylum seekers; Third country nationals remain vulnerable to crime and face practical and legal obstacles in accessing justice and support services and they are on a vulnerable situation. Parallel, there is a rise of hate crimes and xenophobia.
  • Russian war of aggression against Ukraine; The war has destroyed people’s lives, leaving death and victims behind. EU legislation on victims’ rights will ensure that the specific needs of victims who are fleeing from war, such as the right to assistance, support and protection, are met.
CJEU Case Law
  • Does the Directive cover legal persons?

The concept of victim for the purposes of the Council Framework Decision 2001/220/JHA does not include legal persons who have suffered direct harm by violations of the criminal law in a Member State (C-467/05, Dell’Orto, C-205/09, Eredics).

In relation to the Directive the CJEU ruled that it not apply to legal persons or to the State, even if national law confers on them the status of injured party in criminal proceedings. (C-603/19 Criminal proceedings against TG and UF § 46).  

However, Member States may choose to apply the standards set out in the Directive to legal persons.

  • Is restorative justice obligatory?

The CJEU, interpreting Article 10 Council Framework Decision 2001/220/JHA on mediation, has confirmed that Member States are not obliged to use mediation/restorative justice for all offences (CJEU rulings in cases C-205/09 Eredics and Joined Cases C 483/09 and C 1/10 Gueye/Sanchez).

Other acts of EU law
  • Other EU acts in the area of victims’ rights

Compensation Directive; Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims

Regulation (EU) 606/2013 on mutual recognition of protection measures in civil matters

Directive 2011/99/EU on the European protection order;

  • Other acts of EU law for victims of particular types of crime

Other EU law which complements and builds on the Victims’ Rights Directive.

Victims of terrorism; Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA

Victims of trafficking in human beings; Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA

Child victims of sexual exploitation; 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, and replacing Council Framework Decision 2004/68/JHA,

Victims of non-cash payment fraud; Directive (EU) 2019/713 of the European Parliament and of the Council of 17 April 2019 on combating fraud and counterfeiting of non-cash means of payment and replacing Council Framework Decision 2001/413/JHA, PE/89/2018/REV/3

Other relevant EU strategies
  • EU Strategy on victims’ rights (2020-2025)
  • In 2020, the Commission published for first time the EU Strategy on victims’ rights (2020-2025); The main objective of the strategy is to ensure that all victims of all crime, no matter where in the EU or in what circumstances the crime takes place, can fully rely on their rights.
  • The key priorities include: (i) effective communication with victims and a safe environment for victims to report crime; (ii) improving support and protection to the most vulnerable victims; (iii) facilitating victims’ access to compensation. The key priorities aimed at working together on victims’ rights are: (i) strengthening cooperation and coordination among all relevant actors; and (ii) strengthening the international dimension of victims’ rights.
  • Other relevant EU strategies: Gender Equality Strategy 2020-2025, Strategy on the rights of the child, Strategy on European judicial training, LGBTI+ Equality Strategy, EU Anti-racism Action Plan 2020-2025, EU updated framework for Roma equality, inclusion and participation, Strategy for the Rights of Persons with Disabilities 2021-2030, Security Union Strategy, The strategic approach towards the eradication of trafficking in human beings, The Strategy for a more effective fight against child sexual abuse
  • New Initiative for EU Legislation
  • On 8 March 2022, the Commission presented a proposal for a Directive on combating violence against women and domestic violence; Proposal for a Directive of the European Parliament and of the Council on combating violence against women and domestic violence, COM/2022/105 final