In May 2011, the European Commis-sion sent a proposal for a “Directive establishing minimum standards on the rights, support and protection of victims of crime” to the European Parliament for consideration.
For the reply from the European Commission Vice-President Viviane Reding, click here.
The Directive defines “victims” as “natural persons who have suffered harm […] caused by a criminal offence” and “family members of a person whose death has been caused by a criminal offence”. These victims are granted several quite specific rights.
The first set of rights (Art. 3 – 7) deal with the provision of information and support to victims. Article 3 deals with information requirements in the stage when criminal complaint is filed. Article 4 states that Member States will notify victims of their right to receive information in the course of the criminal process. Amongst these is the right to be notified on the time of release from detention of the prosecuted person. Articles 5 and 6 regard the right of interpretation and translation (“free of charge”) on behalf of victims. Article 7 grants the right to access to victim support services.
The second set of rights (Art. 8 – 16) deal with the rights of victims to participate and when participating in a criminal procedure. Amongst these are the right of a victim to be heard during criminal proceedings and to supply evidence (Art. 9) and the right to have any decision not to prosecute reviewed (Art. 10). Victims that “have the status of parties to criminal proceedings” – a status which the Directive does not define – must have access to legal aid (Art. 12). Furthermore, victims have the right to be reimbursed for expenses incurred as a result of their partici-pation in criminal proceedings (Art. 13) and are entitled to obtain a deci-sion on compensation by the offender in the course of the criminal proceeding (Art. 15). Article 16 contains provisions to facilitate victims residing in other Member States. The most remarkable provi-sion in this Article is that victims may file criminal complaints at the competent authorities of the Member State of residence if they are unable (and in some cases even when they are unwilling) to file a complaint in the Member State where the offence is committed (Art. 16-2).
The third set of rights (Art. 17 – 23) deal with protection of victims against “retaliation, intimidation, repeat or further victimisation.” These include “measures to ensure that the risk of psychological or emotional harm to victims during questioning or when testifying is minimised and their safety and dignity are secured” (Art. 17-2). “Vulnerable victims” as defined in Article 18 (e.g. children and “victims of sexual violence”), shall during court proceedings be offered measures to avoid visual contact with the defendants during the giving of evidence (Art. 21-3(a)), measures to avoid unnecessary questioning concerning the victim’s private life not related to the criminal offence (Art. 21-3(c)) and measures allowing a hearing to take place without the presence of the public (Art. 21-3(d)).
Neither the Pre-amble of the Directive nor its Explanatory Memo-randum discuss how to reconcile these victim’s rights with the rights of the defendant laid down in Article 6 of the ECHR, notably the right of the defendant to question witnesses against him. The Explanatory Memorandum only states: “In partic-ular, in order to ensure that the fun-damental rights of an accused or suspected person are respected, the decision on whether such measures are to be taken is left to judicial dis-cretion. However, the fact that a victim is a child, a person with a dis-ability, a victim of sexual violence or of human trafficking combined with the individual assessment should provide a strong indication of the need for a protective measure”. The issue here is the same in all jurisdic-tions: someone can fraudulently claim to be a victim (which happens quite frequently in “sexual violence” cases), or someone could in actual fact be a victim, but of someone else other than the defendant now standing trial. Therefore victim’s rights cannot be viewed as absolute, but must in each case be balanced with the rights of the defendant. And vice versa, one might add. The Directive unfortunately does not give sufficient guidance on how to recon-cile these opposing rights.
Report by Dian Brouwer, member of the ECBA Advisory Board