Tilburg University
The EU framework decision for victims of crime
Groenhuijsen, M.S.; Pemberton, A.
Published in:
European Journal of Crime, Criminal Law and Criminal Justice
Publication date:
2009
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Publisher's PDF, also known as Version of record
Link to publication in Tilburg University Research Portal
Citation for published version (APA):
Groenhuijsen, M. S., & Pemberton, A. (2009). The EU framework decision for victims of crime: Does hard law
make a difference?
European Journal of Crime, Criminal Law and Criminal Justice
,
17
(1), 43-59.
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© Koninklijke Brill NV, Leiden, 2009 DOI: 10.1163/157181709X400386
e EU Framework Decision for Victims of Crime:
Does Hard Law Make a Difference?
M.S. Groenhuijsen and A. Pemberton
International Victimology Institute, Tilburg University, e Netherlands
1. Introduction
On the th of March the European Union Framework Decision on the standing
of victims in criminal proceedings was adopted.
is event is a milestone in more
than one way. It is the first time that there is a so-called “hard-law instrument”
concerning victims of crime available at the international level. e Framework
Decision codifies rules at the supranational level concerning the legal position
of victims that are binding concerning the domestic legal order of the member
states. Prior to only soft-law instruments were on offer, like the resolution
of the General Assembly of the United Nations and the Recommendation of the
Council of Europe in this field.
e Framework Decision not only approaches matters forcefully, but also
speedily. For the largest part the provisions had to be implemented within one
year. ere are only a few exceptions to this rule, with articles and requiring
implementation by and article by . is strict regime – the combina-
tion of binding norms and the short period for adaptation of national law – leads
to a number of questions. Why did the EU choose this instrument to protect the
interests of victims? And what factors determined its content? ese questions are
)
//JHA.
)
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res. /
of November ; Recommendation () on the Position of the Victim in the Framework
of Criminal Law and Procedure, June ; and of later date than the Framework Decision
Recommendation () on Assistance to Crime Victims, June .
European Journal of Crime,
Criminal Law and Criminal Justice 17 (2009) 43–59
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Groenhuijsen and Pemberton / European Journal of Crime,
Criminal Law and Criminal Justice 17 (2009) 43–59
the focus of section . Subsequently (in section ) the results are discussed. Has the
Framework Decision delivered what was expected? In section the meaning of the
concept of implementation is analysed in the context of this Framework Decision.
is is followed by the results of a survey carried out in a number of member states,
which serves to complement the information gathered by the European institutions
themselves (section ). In the conclusion (section ) we will return to the distinction
between hard law and soft law in an international legal context.
2. e Background and Context of the Framework Decision
In recent years Europe has been flooded by a wave of Framework Decisions in the
field of criminal justice. is is a marked difference with the situation well into
the nineties. en the EU held the opinion that it did not have the competence to
interfere with the criminal justice affairs of the member states. is perspective also
applied with respect to the position of victims of crime. When non-governmental
organisations for victim assistance applied for possible financial support from
Brussels, the answer was invariably negative. e reason given was that they were
active in the field of criminal justice and that this was not “Europe’s business”.
With this background in mind it is remarkable that the Framework Decision on
victims eventually belonged to the first generation of Framework Decisions in the
area of criminal justice.
How to explain this sudden advance of victims? e heart of the matter is the
position of the so-called cross-border victims. At the end of the last century Swedish
Euro-commissioner Anita Grodin was convinced that the fate of those victimized
in another state than their country of residence differs from those who fall victim
in their own country.
A cross-border victim does not always speak the language,
does not understand the host country’s legal system and has often returned to his
country of origin long before the trial. ese specific problems of “foreign” victims
were then linked with the classic European freedoms and in particular with the
freedom of persons to travel without restrictions (without discrimination based
upon nationality) within the European common space. is consideration has been
the main driver for European competence in the protection of victims of crime.
But it is not practically feasible to regulate the position of cross-border victims,
without paying attention to national victims as well. European standardization
of the position of cross-border victims may lead to the situation that cross-border
victims enjoy rights not open to nationals, which would again be at odds with
)
See for Grodin’s role, as well as those of the Portuguese and French governments in the develop-
ment of the Framework Decision, P. Rock, Constructing Victims’ Rights; e Home Office, New Labour,
and Victims (Oxford, Oxford University Press, ) .
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Criminal Law and Criminal Justice 17 (2009) 43–59
the freedoms relating to the European common space. is is the reason that the
content of the Framework Decision, although it is in certain ways still explicitly
inspired by the phenomenon of cross-border-victimization, ultimately applies to
all victims of crime.
How does this background of the Framework Decision impact its provisions?
We believe the content of the Framework Decision can be characterized in two
ways. First: as to the main theme, the document is extremely similar to the other
previously existing international instruments. Second: concerning the details, all the
supranational texts differ. Where the differences in details may be mere coincidences
in other surroundings, in the case of the Framework Decision they appear to be
caused by deliberate choices that follow the national law of the member states.
We will elaborate this observation below.
e main theme of the Framework Decision follows the international consensus
also evidently expressed by other legal instruments. At its core it includes the
following basic rights for victims of crime:
– A right to respect and recognition at all stages of the criminal proceedings
(article );
– A right to receive information and information about the progress of the
case (article );
– A right to provide information to officials responsible for decisions relating
to the offender (article );
– A right to have legal advice available, regardless of the victims’ means (article
);
– A right to protection, for victims’ privacy and their physical safety (article
);
– A right to compensation, from the offender and the State (article );
– A right to receive victim support (article );
– e duty for governments to promote mediation in criminal cases for offences
which it considers appropriate for this sort of measure (article );
– e duty for the State to foster, develop and improve cooperation with foreign
States in cases of cross border victimisation in order to facilitate more effective
protection of victims’ interests in criminal proceedings (article ).
e shortest and most accurate summary of the general of the Framework Decision
is probably the th article of its preamble. “e rules and practices as regards the
standing and main rights of victims need to be approximated, with particular
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Criminal Law and Criminal Justice 17 (2009) 43–59
regard to the right to be treated with respect for their dignity, the right to provide
and receive information, the right to understand and be understood, the right to
be protected at the various stages of procedure and the right to have allowance
made for the disadvantage of living in a different Member State from the one in
which the crime was committed.”
As to the details of the different provisions the first point of interest is the
phrasing of articles through of the Framework Decision. In these articles,
which relate to safeguards for communication (translators), to legal assistance
and to reimbursement of expenses incurred due to participation in the criminal
procedure, the scope is restricted to “the victim having the status of witnesses or
parties”. is is a meaningful restriction. e United Kingdom insisted on this
particular phrasing. e background is that common law systems do not recognize
the so-called “partie civile”. ere is no possibility for the injured party to adhere
a claim for compensation to the criminal justice procedure, which is a common
legal figure on the continent. e way the Framework Decision is phrased means
that every victim who is not heard as a witness in the court case is deprived of the
three procedural rights mentioned. It seems evident that the government of the
United Kingdom has insisted on this restriction, expecting that this would diminish
the need for substantial changes in her national legislation.
is cautious approach is also evident in other aspects of the Framework Deci-
sion. Concerning “mediation” for example, the Framework confines itself to the
rather vague instruction that member states “shall seek to promote mediation in
criminal cases for offences which it considers appropriate for this sort of measure.”
at offers a lot of leeway. As to the delivery of victim support through non-
governmental organisations the Framework Decision decrees that this should be
promoted or encouraged (Art. ). Encouragement is also called for in the case of
professional education for those who come into contact with victims during the
course of the criminal procedure (Art. ). Meeting this criterion will not prove
much of a challenge.
However the details of the Framework Decision can not be fully explained by
the calculated reservations of the member states. ere are also many provisions
that will evidently necessitate extensive change in national legislations. A prime
example is the ambitious basic requirement in article that not only demands
respect and recognition for all victims, but above all requests specific treatment
for victims who are particularly vulnerable. is will involve changes in legislation
almost everywhere in Europe.
e implications of the provisions relating to the
)
See M.S. Groenhuijsen, “Hervorming van het strafprocesrecht met het oog op belangen van het
slachtoffer; ‘We ain’t seen nothing yet’”, () Delikt en delinkwent -