EU: Victims of crime & compensation

Becoming the victim of a crime can have devastating consequences. If it happens to you outside your country of residence, your difficulties in getting help may be even greater.

The member states of the European Union cooperate to build an area of freedom, security and justice. Currently police and judicial cooperation in criminal matters is based on intergovernmental cooperation, under Title VI of the Treaty on European Union (TEU). (The Treaty of Lisbon would generally improve the chances to reach tangible results.)

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Standing of victims

Even under the existing provisions, the member states have achieved some progress. One example is the Council Framework Decision 2001/220/JHA of 15 March 2001on the standing of victims in criminal proceedings, published in the Official Journal of the European Communities (OJEC) 22.3.2001 L 82/1.


Based on Articles 31 and 34(2)(b) TEU, the Council has agreed on approximation (harmonisation) measures. Article 2 of the Framework Decision lays the foundations for the detailed provisions:

Article 2
Respect and recognition

1. Each Member State shall ensure that victims have a real and appropriate role in its criminal legal system. It shall continue to make every effort to ensure that victims are treated with due respect for the dignity of the individual during proceedings and shall recognise the rights and legitimate interests of victims with particular reference to criminal proceedings.

2. Each Member State shall ensure that victims who are particularly vulnerable can benefit from specific treatment best suited to their circumstances.


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Overview


The Framework Decision lays down minimum standards applicable to all victims of crime, but some of the provisions are specifically aimed at ensuring the rights of crime victims from another member state. The headings of the provisions give an indication of the scope:


Article 1 Definitions

Article 3 Hearings, and provision of evidence

Article 4 Right to receive information

Article 5 Communication safeguards

Article 6 Specific assistance to the victim

Article 7 Victims' expenses with respect to criminal proceedings

Article 8 Right to protection

Article 9 Right to compensation in the course of criminal proceedings

Article 10 Penal mediation in the course of criminal proceedings

Article 11 Victims resident in another Member State

Article 12 Cooperation between Member States

Article 13 Specialist services and victim support organisations

Article 14 Trainingfor personnel involved in proceedings or otherwise in contact with victims

Article 15 Practical conditions regarding the position of victims in proceedings


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Assessment

According to Article 17 the member states had an obligation to implement all the provisions by 22 March 2006. Article 18 contains their obligations to communicate their implementing measures to the Council and the Commission, and for the Commission to submit a report to the Council:


Article 18
Assessment

As from the dates referred to in Article 17, each Member State shall forward to the General Secretariat of the Council and to the Commission the text of the provisions enacting into national law the requirements laid down by this Framework Decision. The Council shall assess, within one year following each of these dates, the measures taken by Member States to comply with the provisions of this Framework Decision, by means of a report drawn up by the General Secretariat on the basis of the information received from Member States and a report in writing submitted by the Commission.


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Commission report

The Commission has now issued its assessment report, and the main findings are mentioned in the press release La Commission adopte le rapport de mise en œuvre de la Décision cadre relative au statut des victimes dans les procédures pénales (Bruxelles, 7 avril 2009 ; IP/09/549).




The report on the implementation of Framework Decisions 2001/220/JHA as such does not seem to have been published (yet?).


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Compensation for victims

Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims was published in the Official Journal of the European Union (OJEU) 6.8.2004 L 261/15.

Lacking a specific legal base, it was enacted on the basis of the so called flexibility clause, Article 308 of the Treaty establishing the European Community (TEC).

The reasoning went like this:

“The Court of Justice held in the Cowan Case that, when Community law guarantees to a natural person the freedom to go to another Member State, the protection of that person from harm in the Member State in question, on the same basis as that of nationals and persons residing there, is a corollary of that freedom of movement. Measures to facilitate compensation to victims of crimes should form part of the realisation of this objective.”


[Cowan Case: Case 186/87, European Court reports 1989, p. 195.]


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Main provisions

The Council Directive applies to victims of violent crime in cross-border situations, and it allows them to apply for compensation in their country of residence. The authorities have an obligation to assist the applicant:


Article 1
Right to submit an application in the Member State of residence

Member States shall ensure that where a violent intentional crime has been committed in a Member State other than the Member State where the applicant for compensation is habitually resident, the applicant shall have the right to submit the application to an authority or any other body in the latter Member State.

Article 2
Responsibility for paying compensation

Compensation shall be paid by the competent authority of the Member State on whose territory the crime was committed.


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Review

According to Article 19 the Commission should report on the application of the Council Directive:

Article 19
Review

No later than by 1 January 2009, the Commission shall present to the European Parliament, the Council and the European Economic and Social Committee a report on the application of this Directive.


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Commission report

Although not exactly on time, the Commission has now issued its report, as testified by the press release European Union makes it easier for crime victims to obtain compensation (Brussels, 7 April 2009; IP/09/548).



The press release contains the main findings on the application of Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims, but as far as I was able to see, it has not been published (yet?).

More detail is given in an accompanying press release, available in French: Rapport sur l'application de la directive relative à l'indemnisation des victimes de la criminalité Directive 2004/80 CE (Bruxelles, 7 avril 2009; MEMO/09/159).




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Apart from the concrete subject matter of Council Framework Decision 2001/220/JHA and Council Directive 2004/80/EC, this post has tried to exemplify two questions of general interest:

1) The search for a legal base under the existing treaty provisions.
2) Communication and reporting requirements tied to the implementation of EU (EC) legislation.



Ralf Grahn

EU: Criminal records

Slowly the European area of freedom, security and justice is taking shape. Two important justice and home affairs (JHA) acts concerning criminal records in cross-border cases have been published in the Official Journal of the European Union (OJEU) 7.4.2009 L 93.

Framework decision

Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from the criminal record between Member States



Purpose


Article 1
Objective

The purpose of this Framework Decision is:

(a) to define the ways in which a Member State where a conviction is handed down against a national of another Member State (the ‘convicting Member State’) transmits the information on such a conviction to the Member State of the convicted person’s nationality (the ‘Member State of the person’s nationality’);

(b) to define storage obligations for the Member State of the person’s nationality and to specify the methods to be followed when replying to a request for information extracted from criminal records;

(c) to lay down the framework for a computerised system of exchange of information on convictions between Member States to be built and developed on the basis of this Framework Decision and the subsequent decision referred to in Article 11(4).



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Criminal Records Information System (ECRIS)

The second act is Council Decision 2009/316/JHA of 6 April 2009 on the establishment of the European Criminal Records Information System (ECRIS) in application of Article 11 of Framework Decision 2009/315/JHA.



Material scope

Article 1
Subject matter

This Decision establishes the European Criminal Records Information System (ECRIS).

This Decision also establishes the elements of a standardised format for the electronic exchange of information extracted from criminal records between the Member States, in particular as regards information on the offence giving rise to the conviction and information on the content of the conviction, as well as other general and technical implementation means related to organising and facilitating the exchange of information.

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Legal base

Both acts are based on Article 31 and the Framework Decision on Article 34(2)(b) and the ECRIS Decision on Article 34(2)(c) of the Treaty on European Union (TEU), where the provisions on police and judicial cooperation in criminal matters are still located, because the Treaty of Lisbon is not yet in force.

As a reminder, here are the relevant treaty provisions (OJEU 29.12.2006 C 321 E):

Article 31 TEU

1. Common action on judicial cooperation in criminal matters shall include:

(a) facilitating and accelerating cooperation between competent ministries and judicial or equivalent authorities of the Member States, including, where appropriate, cooperation through Eurojust, in relation to proceedings and the enforcement of decisions;

(b) facilitating extradition between Member States;

(c) ensuring compatibility in rules applicable in the Member States, as may be necessary to improve such cooperation;

(d) preventing conflicts of jurisdiction between Member States;

(e) progressively adopting measures establishing minimum rules relating to the constituent elements of criminal acts and to penalties in the fields of organised crime, terrorism and illicit drug trafficking.

2. The Council shall encourage cooperation through Eurojust by:

(a) enabling Eurojust to facilitate proper coordination between Member States' national prosecuting authorities;

(b) promoting support by Eurojust for criminal investigations in cases of serious cross-border crime, particularly in the case of organised crime, taking account, in particular, of analyses carried out by Europol;

(c) facilitating close cooperation between Eurojust and the European Judicial Network, particularly, in order to facilitate the execution of letters rogatory and the implementation of extradition requests.


Article 34(2)(b) and (c) TEU
2. The Council shall take measures and promote cooperation, using the appropriate form and procedures as set out in this title, contributing to the pursuit of the objectives of the Union. To that end, acting unanimously on the initiative of any Member State or of the Commission, the Council may:

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(b) adopt framework decisions for the purpose of approximation of the laws and regulations of the Member States. Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect;

(c) adopt decisions for any other purpose consistent with the objectives of this title, excluding any approximation of the laws and regulations of the Member States. These decisions shall be binding and shall not entail direct effect; the Council, acting by a qualified majority, shall adopt measures necessary to implement those decisions at the level of the Union;



Ralf Grahn