5. COMPENSATION TO VICTIMS OF CRIME
(23911)
13349/02
COM(02) 562
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Draft Directive on compensation to crime victims.
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| Legal base: | Article 308EC; consultation; unanimity
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| Document originated: | 16 October 2002
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| Deposited in Parliament: | 25 October 2002
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| Department: | Home Office
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| Basis of consideration: | EM of 13 November 2002
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| Previous Committee Report: | None; but see (22896) 13770/01: HC 152-x (2001-02), paragraph 13 (12 December 2001)
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| To be discussed in Council: | Date not set
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| Committee's assessment: | Politically important
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| Committee's decision: | Not cleared; further information requested
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Background
5.1 Just over a year ago, we considered a Commission
Green Paper on this subject which sought responses on key issues.[9]
At the time, we noted that the question of compensation for "cross-border"
victims (those who suffer injury and loss in a Member State other
than the one in which they normally live) was likely to provoke
the most divergent views. We cleared the document, but asked for,
and received, a copy of the Government's response.
The document
5.2 Following consultation on the Green Paper, the Commission
has now produced this draft Directive, which aims to ensure that
all EU citizens and legal residents in the EU can receive adequate
compensation for the losses they suffer if they fall victim to
serious crime within the EU. (Article 2 contains the definition
"an intentional crime against the victim's life, health or
personal integrity": the Commission's Explanatory Memorandum
explains that, besides violent crime, this is intended to cover
serious crimes against a person which do not involve violence
— such as, for example, some forms of sexual offences, or
racist and xenophobic crimes.) Compensation would also be granted
to close relatives and dependants of victims who have died as
a result of the injuries sustained.
5.3 As not all EU Member States currently have state
compensation schemes, the draft Directive provides that all should
establish a scheme, and that such schemes should meet common minimum
standards regarding eligibility for compensation, the losses covered,
and the criteria for determining the amount of compensation payable.
5.4 The draft Directive also addresses the issue of "cross-border"
compensation, opting for the "mutual assistance model"
which received most support from consultation responses. The proposal
would oblige Member States to appoint an authority, or authorities,
to facilitate access to compensation in cross-border situations,
by assisting with an application for compensation, and forwarding
the application to the relevant authority in the Member State
in which the crime occurred.
5.5 The proposal does not deal with the possibility of
the victim securing compensation directly from the offender, since
that is covered by a separate Framework Decision.[10]
The Government's view
5.6 The Government has some fundamental concerns about
whether Article 308 is the appropriate legal base for this instrument,
and, as a consequence, about whether the requirements of the principle
of subsidiarity have been met. It has fewer concerns about the
substance of the proposal, and its legal and financial implications.
5.7 The Parliamentary Under-Secretary of State at the
Home Office (Mr Bob Ainsworth) reminds us that the Great Britain
and Northern Ireland Schemes are by far the most generous in the
EU. Both comfortably exceed the minimum standards proposed, and
no extra costs should be incurred in compliance. The new requirements
for facilitating cross-border applications will require amendments
to both schemes, and will also involve some extra costs, but these
are unlikely to exceed £1 million a year. The Minister tells
us that the Government already knows that the proposals in the
draft Directive would be generally welcomed in the United Kingdom;
further consultation is not, therefore, planned. The Minister
helpfully outlines the provisions of each Article, highlighting
a few points of concern to the UK. He has such a concern in relation
to Article 4 — Principles for determining the amount
of compensation — which allows Member States to determine
compensation either on a case by case basis in line with their
civil (tort) law or by reference to a tariff linked to civil damages.
The Great Britain and Northern Ireland Schemes severed the link
to common law damages on grounds of costs, which were rising rapidly
at an unsustainable rate. During negotiations, the Government
will, therefore, seek a less prescriptive form of words with no
direct linkage between the tariff of awards and civil damages.
5.8 The Minister also tells us that the Government will
seek to amend Article 7 — Behaviour of the applicant
in relation to the crime — so that it reflects the UK's
approach that a person may be refused compensation because of
a criminal record, as well as because of his or her conduct or
behaviour in the incident.
Conclusion
5.9 We note that the Government seems broadly content
with the substance of the draft Directive, and that the concerns
raised in its response to the Green Paper — especially in
relation to "cross-border" compensation — have
largely been met.
5.10 The use of Article 308EC as the legal base, however,
is clearly problematic. We await with interest the Minister's
response to our sister Committee's detailed exposition of its
concern that the use of Article 308 as a base for this measure
could set a dangerous precedent, with the risk of opening the
way to the large-scale harmonisation of civil law and social measures.
5.11 For our part, we ask whether the Minister is
content that compensation should be payable to victims of "intentional
crime against the victim's life, health or personal integrity",
especially since the phrase is defined in the Explanatory Memorandum
as covering racist and xenophobic crimes, where no acts of violence
may have been committed. We ask how this equates with current
UK practice.
5.12 We will keep the document under scrutiny until
we know the Minister's views on these issues.
9 (22896)
13770/01; see headnote to this paragraph. Back
10 (21390)
9720/00; see HC 28-i (2000-01), paragraph 2 (13 December 2000).
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