Procedural aspects of EU Criminal Law

EU criminal law has been a fast-developing area of law over the last decade. Its developments have spurred controversy as well as enthusiasm. It has been observed that its primary focus has been on procedural mechanisms to facilitate cooperation, such as the principle of mutual recognition or the principle of availability (respectively, within judicial and police cooperation in criminal matters) rather than on guarantees for individual rights.¹

In order to support and strengthen the interaction between judicial and police authorities across the EU, Art. 82 (2) of the Treaty on the Functioning of the European Union (TFEU) confers upon the European Parliament and the Council the power to approximate Member States’ procedural rules by establishing minimum rules.² The matter is rather delicate as criminal law is one of the core attributes of state sovereignty. It is not surprising that the same provision includes guarantees that take into account the differences between the European traditions. In this context, one of the aspects that deserve particular attention is the role and legal position of victims of crime. Their rights are explicitly mentioned by Art. 82 (2) TFEU as one of the areas where minimum approximation shall be pursued. Although it may at first sight look like a marginal procedural issue, the way of dealing with victims of crime reflects a variety of theoretical approaches on how crime, punishment, and the relationship between the individual and the state are being conceived. The importance that is given to the victims’ interests in a legal system discloses a specific conception of the criminal trial and the reasons and procedures for the infliction of punishment.

The status of the victim from a theoretical perspective

Looking at crime as a “civil” or “private wrong” underpins an understanding of the criminal act as a conflict between individuals. As a result, the best way of solving this conflict is by imposing on the offender the obligation to pay financial compensation for the harm suffered by the victim rather than criminal punishment.³ Apart from the question of how compensation should be estimated the problem of “social justice” is particularly relevant. This emerges from the consideration that the balance between the victim and the offender would be altered whenever the latter belongs to the lower classes, because in these cases the State’s punitive reaction might be disproportionate to the seriousness of the criminal conduct. This approach has also been criticised from different theoretical perspectives. On the one hand, when viewing crime as a “public wrong” the expressive function of a sanction, its capacity to communicate the moral reprehensibility of a criminal act, would be undermined if the state merely claimed compensation on behalf of the victim.⁴ By identifying punishment as censure, the state officially recognises that the victim has rights and that these rights have been violated by the criminal conduct.⁵ On the other hand, one could argue that because the trial represents the interests of the community at large, a crime is a wrong that is committed not only against individual citizens, but also against the entire community.⁶ As a result, the victim does not only have rights, but also duties (besides the conventional duty to participate in the trial), for instance the duty to report the crimes that have been committed against him/her, to give witness, and to face cross-examination.⁷

The European and international agenda

Of course, these approaches do not emerge from the Treaty of Lisbon although their broad implications have been discussed at the European and international level. The protection of victims both within and outside of the trial has been on the agenda of the Council of Europe, the European Commission and the European Parliament at least since the 1970s.⁸ A 2006 Recommendation of the Committee of Ministers of the Council of Europe, which invoked discussions on the protection of the right to privacy and the right to information as well as the need for adequate training of the competent personnel, required Member States to adopt compensation schemes for victims of serious, intentional, and violent crimes, including sexual violence, and to compensate the victim’s immediate family and dependants in case of the victim’s death. The possibility of considering compensation for pain, suffering, and for damage to property, is also included. In addition, measures are suggested to deal with all difficulties deriving from the victim residing in a state other than the one where the offence was committed (so-called “cross-border victims”).

The issue of the rights of victims of crime officially became part of the EU policies in the area of freedom, security and justice in 1998 (Vienna Action Plan)⁹ and 1999 (Tampere conclusions).¹⁰ The Commission pointed out that compensation alone would not be sufficient to ensure adequate protection of crime victims and would not be effective if crime prevention, assistance to victims, and the legal standing of victims in the criminal procedure were not addressed beforehand.¹¹ It was also noted at that time that there was great divergence in the Member States as regards the compensation schemes. Following the indications from Vienna and Tampere, the 2001 Framework Decision focused on the standing of victims in criminal proceedings: Its purpose is to approximate national legislation on the protection of victims and its scope of application is clearly limited to natural persons who have suffered harm, including physical or mental injury, emotional suffering and economic loss.¹²

The Framework Decision lists a set of rights, ranging from the right to be informed about the progress of the case to the right to receive legal support, the right to privacy and the right to compensation both from the offender and the state. Three main issues which all stem from the lack of harmonisation of procedural and substantive law are worth pointing out. First, the problems related to “cross-border victims” and diverging national legislation on procedural rights have not been properly addressed. One of the effects of establishing freedom of movement within the EU is that those who exercise this freedom risk being treated differently from those who stay in one country. Although Art. 11 specifically deals with victims who are residents in other Member States and the general provisions of the Framework Decision do not distinguish between resident and non-resident victims, many situations can be envisaged in which different procedural rules apply depending on the territory on which the offence is committed. The Framework Decision has not filled some of the most important gaps. To give an example, the provisions on communication safeguards which aim at ensuring that the victim is able to follow the proceedings (due, for instance, to language difficulties or legal technicalities) only apply to victims that are either witnesses or parties (Art. 5). This leaves out all those victims who do not possess this legal status. With respect to the implementation aspects, it has been pointed out that too much room for manoeuvre has been left to Member States and that it is difficult to assess the level of implementation.¹³

Another major legal question concerns the issue of compensation. The creation of the area of freedom, security and justice in the EU has always been propelled by the ambition to ensure to its citizens a high level of security and better access to justice. “Justice” includes the right to fair compensation for the harm suffered, regardless of the place where the harming event has occurred. As the Commission has admitted on several occasions, this presupposes a certain degree of compatibility and convergence between the legal systems of the Member States.¹⁴ In this context, the need to protect the four freedoms (free movement of persons, goods, capital and services) serves once again as a justification for the establishment of minimum standards, in accordance with the prohibition of discrimination on grounds of nationality (Art. 18 TFEU). This means that victims who are residents in other Member States, particularly in cross-border situations, ought to be treated equal to victims who are nationals of a Member State. The Court of Justice was well aware of this principle in 1989, when it ruled that one effect of the freedom to receive a service is that a state may not make the award of compensation for harm deriving from an assault in its territory subject to the condition that the person is a resident or a national of that state.¹⁵ However, this ideal faces the harsh reality of economic, cultural and social divergences existing in the EU countries. The Commission noted in its analysis that, while unfair treatment would be effectively reduced only in a situation of full harmonisation, national approaches to compensation schemes vary considerably: hence the need to have common minimum standards.¹⁶ Access to compensation in cross-border situations is now governed by a Directive which applies to violent crimes committed in a Member State other than where the victim normally resides.¹⁷

The issue of standardisation is closely related to the third hurdle that is worth mentioning: the definition of “victim”. As indicated above, the Framework Decision on the standing of victims restricts the scope of its provisions to natural persons. This excludes legal persons and the Court of Justice has also taken this view. On the one hand, this is confirmed by many provisions of the Framework Decision (which inter alia allude to the dignity of the individual and the need to protect the family of the victim or persons in a similar position – the so-called “indirect victims”).¹⁸ On the other hand, the Directive on the compensation of victims of crimes is not relevant, because it has a different scope of application. While the Framework Decision seeks to approximate domestic laws on the protection of the interests of crime victims, the Directive seeks instead to facilitate access to compensation to crime victims in cross-border situations.¹⁹ Moreover, “victim” does not extend to legal persons for the purposes of guaranteeing penal mediation between the victim and the offender in the course of criminal proceedings.²⁰ At the same time, since the Framework Decision does not intend to promote full harmonisation, Member States are free to decide whether or not legal persons fall within its scope of application.²¹ The case law of the Court of Justice as illustrated above shows that the competence of Member States in determining the categories that fall within EU legislation is seen as rather extensive. National legislation providing for schemes of penal mediation that are applicable to legal persons is not in contrast to the Framework Decision. However, a restrictive interpretation of the provisions of the Framework Decision (in the sense of ruling out legal persons) is non-discriminatory and perfectly justifiable due to the specific nature of the interests of a natural person, in particular his or her right to life and physical well-being.²² One may notice the Court’s challenging effort to promote approximation without affecting the value of “unity in diversity”.

Conclusion

Indeed, the role and concept of victims within and outside of criminal proceedings present multiple challenges. They are very much context-dependent. It is evident that the needs of victims of human trafficking or other serious cross-border offences (inter alia, organised crime) are different from the needs of victims of crimes committed in one state. In the first case, victims will have to be provided with special psychological and material support. They especially need to be protected from threats and intimidation when serving as a witness in a criminal trial. However, the Framework Decision only applies to victims during the criminal proceedings. As a result, whenever the proceedings are terminated or not carried out, or for any reason the victims do not take part in them, these persons will be in a particularly vulnerable position. Although the Framework Decision on trafficking of human beings contains a provision on victims, this is clearly too superficial and inadequate, as it does not specify, for example, what type of assistance and support may be provided to victims, the conditions under which they may be envisaged, the measures aimed at preventing “secondary victimisation” (when a victim undergoes unnecessary or intrusive questioning or cross-examination before and during the trial).²³ In this respect, the new Draft Directive on human trafficking provides for a much higher level of protection before, during and after the trial and devotes much more attention to child victims.²⁴

The notion of victims and the procedural rules governing their position, powers, and ensuring their protection are also affected by cultural and social factors. The decision on how the relationship between the victim and the offender should be shaped and how central the role of the victim in the trial has to be entails a certain view of crime and the function of criminal law in a society. However, this presupposes the existence of a minimum set of shared values, a common ground that is not always evident in European criminal law. Nevertheless, there seems to be a trend in the EU towards enhancing the role of the victim, with a particular emphasis on victims of terrorism. This is shown by the Stockholm Programme which encourages the adoption of measures for the protection of victims and calls on the Commission and the Member States to ascertain whether a comprehensive instrument, joining together the Directive and the Framework Decision, can be elaborated.²⁵ In an effort to preserve diversity, the principle of mutual recognition has been applied to draft a proposal on a European Protection Order. This order can be issued upon request by the competent authority whenever a person who already has benefited from a protection order in the Member State of origin moves to another Member State and applies for continued protection (especially in cases of threats towards his or her life, physical or psychological integrity, personal liberty or sexual integrity).²⁶ A new package on victims’ rights was presented in May²⁷ and it will be interesting to see how the new measures will address the complex questions that arise from the lack of full harmonisation in the European judicial area. It will also be interesting to see whether prioritising the issue of the protection of victims might render the effort to forge common minimum standards for the rights of the defence less effective.

Massimo Fichera

Post-Doctoral Fellow, Centre of Excellence in Foundations of European Law and Polity Research, University of Helsinki

massimo.fichera@helsinki.fi