13. Compensation to victims of crime
| (a)
(23911)
13349/02
COM(02) 562
(b)
(24701)
10996/03
—
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Draft Directive on compensation to crime victims.
Revised draft Directive on compensation to crime victims.
|
| Legal base | Article 308EC; consultation; unanimity
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| Deposited in Parliament | (b) 7 July 2003
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| Department | Home Office |
| Basis of consideration | EM of 31 July 2003
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| Previous Committee Report | (a) HC 63-xi (2002-03), paragraph 5 (5 February 2003)
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| To be discussed in Council | November 2003
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| Committee's assessment | Legally and politically important
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| Committee's decision | (a) Cleared
(b) Not cleared; further information requested
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Background
13.1 We last considered this proposal in February. On that occasion,
we decided to keep the document under scrutiny until we heard
more about the progress of negotiations.
13.2 In June, the then Minister wrote to report that,
although the proposal had been considered on four occasions
in the Civil Law Committee, the problems over the legal base were
unresolved. However, the first fifteen Articles in Section 1
of the text (dealing with minimum standards for compensation)
had been discussed, and a revised text reflecting those discussions
had been promised by the outgoing Greek Presidency.
The documents
13.3 Document (b) is the Greek Presidency's text,
as promised. It contains the revised text of the first fifteen
Articles. (The remaining Articles are unchanged, and have yet
to be considered in detail by the Civil Law Committee). Document
(b) supersedes document (a).
Document (b) and the Government's view
13.4 In her Explanatory Memorandum, the Parliamentary
Under-Secretary of State at the Home Office (Caroline Flint) helpfully
notes the principal changes from document (a), and highlights
a few points of concern to the UK.
13.5 The Minister tells us that Article 2 —
Personal and territorial scope — has been substantially
revised, and is now tighter and more restrictive. She continues:
"Compensation would now be payable to victims
of (intentional) violent crime or, where the primary
victim had died as a consequence of the personal injury, to close
relatives or dependants (provided they had suffered pecuniary
loss or serious emotional suffering). 'Crime' would mean an act
or omission in violation of the criminal law of the country concerned
or, alternatively, 'violent crime' would mean an act that had
caused physical or serious psychological injury. 'Close relatives'
would include children, spouses/partners and parents.
"The Government welcomes the change making it
clear that compensation will only be awarded as a result of violent
crime. The word 'intentional', if left in the final draft, might
be considered restrictive, since it could exclude 'reckless' acts
for which compensation can be payable under the UK schemes. However,
the Directive is setting minimum standards, which Member States
are free to exceed if they choose. Footnote 2 [to the relevant
Article] suggests victims of road traffic incidents might be included.
The Government will oppose this, except in cases (as under the
UK schemes) where the vehicle is deliberately used to cause injury.
"The Government believes that the concept of
'omission'….may need further clarification. It also believes
that the alternative [definition suggested for 'violent crime']
would be unacceptable since it could admit mental injury caused
not by violent crime, but by non-violent offences such as burglary.
The Government may additionally need to seek further changes
to Articles 2.2(b), which as currently drafted could admit natural
children who were not regarded as his or her children by the deceased;
and 2.2(c) which is at odds with the UK schemes which exclude
compensation for psychological injury without physical injury,
except under certain circumstances closely defined in the UK schemes."
13.6 Although Article 4 —Principles for
determining the amount of compensation— has been revised,
the Minister tells us that the wording might still be held to
impose some direct linkage between the tariff of awards and civil
damages (a link broken by the Great Britain and the Northern Ireland
schemes). She says that the Government will seek the omission
of any reference at all to civil damages, conceding, if necessary,
simply a statement that the tariffs will "have regard"
to them.
13.7 The Minister tells us that Article 5 continues
to require Member States to provide an interim award if certain
conditions are met. The UK believes this provision should be
permissive rather than obligatory.
13.8 The Minister reports that the Government has
so far been unsuccessful in its attempts to amend Article 7, which
allows Member States to reduce or refuse compensation if the applicant's
behaviour contributed to his injury or death. The UK will continue
to press for the power to be extended to cover the applicant's
behaviour before, during or after the incident giving rise to
the application, and for there to be provision to reduce or refuse
compensation on account of the applicant's bad character as evidenced,
for example, by his criminal record.
13.9 The Government will also press for amendment
to Article 11 which now requires the victim to report the crime
within a period of "not less than [seven] days" from
the date of the commission of the crime or from the date when
the victim has the capacity to do so. The UK considers that
seven days is far too long a time, and that there should be a
more general requirement for the crime to be reported as quickly
as is reasonably possible in all the circumstances, without specifying
how long that period could be.
13.10 The Government either supports, or has no objections
to, the other changes in the first fifteen Articles. Neither
does it have any objections of principle to the broad aims in
Section 2 of the draft Directive dealing with access to compensation
in cross-border situations. However, the Minister considers the
draft Articles, as presently framed, to be too bureaucratic and
detailed. The Government will seek appropriate revision to the
text in the interests of clarity, simplicity and proportionality
(as regards extra administrative work and cost).
13.11 The Minister reiterates the UK's concern about
the proposed legal base. She says:
"Until the issue of the legal base is settled,
the Government cannot accept that this is properly an EU level
matter."
13.12 Finally, the Minister tells us that, although
it is not yet known when negotiations will be completed or when
the issue of the legal base is likely to be resolved, the Directive
has been listed for discussion at the November meeting of the
Justice and Home Affairs Council.
Conclusion
13.13 Clearly, the unresolved issue of the legal
base for this draft Directive still overshadows all other considerations.
13.14 Nevertheless, some useful progress appears
to have been made on the first fifteen Articles. We particularly
welcome the revision of Article 2, which appears to meet our concern
that the draft Directive might cover victims of crimes where no
acts of violence have been committed. We trust that the Commission's
explanatory memorandum will be amended appropriately.
13.15 We shall keep document (b) under scrutiny
until the legal base is resolved, and until the outcome of negotiations
on Section 2 are known. We clear document (a) since it has now
been superseded.
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