7 Standing of victims in criminal proceedings
| (25371)
6029/04
COM(04) 54
| Commission Report on the basis of Article 18 of the Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings
|
| Legal base | — |
| Document originated | 3 February 2004
|
| Deposited in Parliament | 17 February 2004
|
| Department | Home Office |
| Basis of consideration | EM of 2 March 2004
|
| Previous Committee Report | None, but see (21390) 9720/00; HC 23-xxvi (1999-2000), para 7 (26 July 2000)
|
| To be discussed in Council | No date set
|
| Committee's assessment | Legally and politically important
|
| Committee's decision | Not cleared; further information requested
|
Background
7.1 The Council Framework Decision of 15 March 2001 on the standing
of victims in criminal proceedings[11]
sets out a number of standards for providing information to victims
in criminal proceedings and for their protection and compensation.
Article 18 of the Framework Decision requires each Member State
to forward to the Council and the Commission the text of the provisions
enacting its requirements into national law. The Council is to
assess the measures taken by the Member States by means of a report
from the General Secretariat of the Council based on information
provided by the Member States and a written report from the Commission.
The Commission's report
7.2 The document under scrutiny is the Commission's report referred
to in Article 18 of the Framework Decision. The report asserts
that the criteria used for evaluating implementation by a Member
State of an EC Directive "must be applied mutatis mutandis
to Framework Decisions". The Commission concedes that in
the present state of European Union law it has no power to bring
an action before the Court of Justice to "force a Member
State to transpose a Decision". Referring to Article 35(7)
EU the Commission explains that the Court may hear a case concerning
the "interpretation or implementation (which includes the
transposal) of the Decision"[12]
and that the possible exercise of this right of action "requires
a solid factual base" and that "the Commission report
on the basis of the information supplied to it can help to constitute
it".
7.3 In its commentary on the measures notified to
it by the Member States, the Commission notes that in relation
to the definition of "victim" in Article 1, "the
United Kingdom drew up a broad definition of "victim"
which includes the victim, his parents, his guardian if any and,
in the event of murder, the victim's close friends." The
Commission comments that "this definition does not pose problems
of conformity since it satisfies the minimum requirements"
of the definition in the Framework Decision.[13]
7.4 Article 2 of the Framework Decision concerns
respect and recognition for victims. Article 2(1) provides that
each Member State should ensure that victims "have a real
and appropriate role in its criminal legal system" and 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".
The Commission asserts that "a Member State can be held to
have granted a genuine status to victims as required by the Framework
Decision only if it has properly transposed all the Articles of
the Framework Decision".[14]
It goes on to claim that "no Member State can claim to have
transposed all the obligations arising from the Framework Decision".
The Commission does not explain this comment further in relation
to Article 2(1).
7.5 Article 2(2) of the Framework Decision requires
each Member State to "ensure that victims who are particularly
vulnerable can benefit from specific treatment best suited to
their circumstances". The Commission notes that the term
"particularly vulnerable" is not defined in the Framework
Decision and that the scope of national measures varies according
to the view taken by Member States of this term. The Commission
notes that provision is made in the United Kingdom for the protection
of minors and the physically disabled, but the Commission comments
that "the United Kingdom does not seem especially sensitive
to particularly vulnerable victims except in Scotland". The
Commission refers to the Sexual Offences (Procedure and Evidence)
(Scotland ) Act 2002 and indicates that this is "awaiting
Royal Assent".[15]
Overall, the Commission comments that "even if particularly
vulnerable victims are properly protected in most Member States,
there are doubts about the mandatory nature of some of the measures
taken".
7.6 Article 3(1) of the Framework Decision requires
each Member State to "safeguard the possibility for victims
to be heard during proceedings and to supply evidence". The
report comments that most countries (Austria, Belgium, Finland,
France, Germany, Italy, Luxembourg, Netherlands, Portugal and
Spain) allow victims to bring partie civile proceedings.[16]
The report criticises the United Kingdom on the grounds that its
"transposal provisions" were "incomplete".
In relation to the possibility of the victim giving evidence in
the criminal proceedings, the report again criticises the United
Kingdom for not notifying its "transposal provisions".[17]
7.7 Article 3(2) of the Framework Decision requires
each Member State to "take appropriate measures to ensure
that its authorities question victims only insofar as necessary
for the purpose of criminal proceedings". The report states
that the United Kingdom (except Scotland) "did not notify
provisions transposing this Article" and that:
"Scotland, apart from the Sexual Offences (Procedure
and Evidence) (Scotland) Act, not yet in force at the time of
the report, reports measures which, although relevant, have no
solid legal basis: there are doubts as to about [sic] the real
mandatory status of the Law Society of Scotland's guidelines".[18]
7.8 Overall, the Commission concludes that "the
possibility for the victim of being heard during the procedure
and providing evidence largely depends on its status as party[19]
to the proceedings. Once again, one can only deplore the incomplete
implementation of this Article, especially the second paragraph".
7.9 Article 4(1) of the Framework Decision provides
that each Member State is to ensure that "victims in particular
have access … by any means it deems appropriate and as far
as possible in languages commonly understood, to information of
relevance for the protection of their interests". In its
report, the Commission interprets this requirement as imposing
an obligation on the authorities of Member States to transmit
this information to victims of their own motion. The Commission
argues that the obligation is not met by issuing information booklets
or setting up websites. The report criticises the United Kingdom
and Italy for giving "insufficient guarantees on the matter,
since authorities are under no obligation to provide victims with
relevant information. However, Scotland has set up websites and
published various information booklets".[20]
7.10 The report states that Article 4(2) (which provides
for victims to be informed of the outcome of proceedings where
they have expressed a wish to be so informed) has been correctly
transposed, except by Denmark, Greece and the United Kingdom.
The report does not explain the basis for its criticism of the
United Kingdom.
7.11 Article 4(3) requires Member States to ensure
that "at least in cases where there might be danger to the
victims, when the person prosecuted or sentenced for an offence
is released, a decision may be taken to notify the victim if necessary".
The Commission comments in its report that only Finland "correctly
transposed the obligation to inform the victim of the release
of the accused or convicted offender". (In other words, the
Commission appears to construe Article 4(3) as imposing an obligation
to inform, whereas it is clear from the text of Article 4(3) that
there is no such general obligation, but rather an obligation
to introduce a mechanism so that a decision to inform can be taken
to inform the victim "if necessary"). The Commission
makes two criticisms of the United Kingdom in this regard. First,
it states that although the Criminal Justice and Court Service
Act 2000[21] requires
the victim to be informed of plans to release the offender, this
applies only where the offender was sentenced to more than twelve
months' imprisonment for a sexual or violent offence. Secondly,
the Commission states that provision is made in Scotland for the
victim to be informed, but that "the mandatory status of
the instrument is dubious". It adds that "moreover,
information on release on parole is simply guaranteed by the 'current
practice' of the police".
7.12 Article 4(4) provides that where Member States
forward the information under Article 4(2) and (3) on their own
initiative, they must ensure that victims have the right not to
receive such information, unless its communication is compulsory
in the relevant criminal proceedings. The Commission comments
that Member States "took very little action on this provision"
and that only Finland "fully transposed it" and that
"elsewhere the picture is not too good".[22]
7.13 In its review of the implementation of Article
7, the Commission states that "if the victim brings partie
civile proceedings, all the Member States except Ireland,
the United Kingdom, the Netherlands and Belgium provide for the
possibility of meeting lawyers' expenses". The Commission
omits recalling that Article 7 only provides for the possibility
of reimbursing expenses where, according to the applicable national
provisions, victims have the status of parties or witnesses. It
does not make clear that the United Kingdom does not provide for
partie civile proceedings, so that no question of reimbursing
legal expenses incurred in such proceedings can arise at all.
7.14 The report makes no further direct criticisms
of the United Kingdom, except in relation to the provision of
information about the implementation of the Framework Decision
in Gibraltar.
7.15 In its general conclusions, the Commission states
that having regard to the absence or incomplete nature of contributions
from Member States, it could only acquire a "superficial
impression" of the state of implementation of the Framework
Decision, but it nevertheless concludes that the current position
is unsatisfactory. The reference date adopted by the Commission
was 25 March 2003, and the report was sent to the Council on 4
February 2004, some ten months later. Notwithstanding this, the
Commission now invites Member States "to ensure a rapid and
complete transposal of the Framework Decision and to inform it
of this immediately, no later than 15 March 2004, providing a
description of the measures taken with the text of the statutory
provisions or rules in force in support".
The Government's views
7.16 In her Explanatory Memorandum of 2 March 2004
the Parliamentary Under-Secretary of State at the Home Office
(Caroline Flint) notes that the United Kingdom is mostly criticised
for not providing a full account of how it has implemented the
Framework Decision, and that other criticisms of the United Kingdom
are that it:
- does not seem particularly
sensitive to particularly vulnerable victims except, possibly
in Scotland (Article 2(2));
- fails to fulfil completely its obligations regarding
information provision to victims imposed by Article 4;
- does not provide for the possibility of meeting
lawyers' expenses in partie civile proceedings (Article
7); and
- does not provide information about the transposal
of the Framework Decision in Gibraltar (Article 16)."
7.17 On the policy implications of the Commission's
report, the Minister points out that the Government regards respect,
recognition and treatment of victims as a key priority adding
that in the last ten years a range of measures have been introduced
to ensure that victims receive personal and practical support
as well as measures to help those who are particularly vulnerable
to give their evidence in court, the aim being both to ensure
better support for victims and to give them the confidence necessary
to remain engaged with those cases which proceed through the criminal
justice systems.
7.18 The Minister adds the following:
"The Domestic Violence Crime and Victims Bill,
published in December 2003 and currently before Parliament, builds
on the measures contained in the non-statutory 1996 Victim's Charter
and will provide a legal basis, for the first time, to many of
the measures contained in the Framework Decision. In particular,
it will enable a statutory victims' code of practice, which will
give rights to information, personal support and protection, and
will apply to anyone who is victimised in England and Wales, irrespective
of their nationality status. (Scotland and Northern Ireland have
similar arrangements but have no plans, at present, to make them
statutory.)
"UK-wide, there are already systems in place,
through Victim Support and the Criminal Injuries Compensation
Schemes (Great Britain and Northern Ireland) to ensure that EU
nationals victimised in this country are offered a good quality
service in respect of personal support and financial compensation
in the same way as British residents.
"The Government has also contributed to the
accession states' preparations for joining the EU through its
role as a Management Partner in the PHARE Rule of Law Project.
This Commission-funded project has been providing support to the
10 accession states to help them to prepare to meet the requirements
of the acquis. The UK led on Module 4 of the project, which
concerned measures to support victims of crime. The UK voluntary
sector organisation, Victim Support — which receives substantial
Government funding — has also been sharing its experience
and expertise with its counterparts in the accession countries."
7.19 The Minister concludes that the criticisms contained
in the Commission's report "are therefore largely unjustified
and some are mistaken". By way of example, the Minister points
out that there was never any requirement under the Framework Decision
for those Member States who do not offer the opportunity for victims
to be parties to criminal proceedings (partie civile proceedings)
to be required to meet legal expenses. The Minister adds that
a detailed response to the report is currently being prepared
and will provide a more complete account of how the UK complies
with the terms of the Framework Decision.
Conclusion
7.20 We believe that the Commission was right
to characterise its report as being one of superficial impression,
and we agree with the Minister that the criticisms it makes are
unjustified and, in some cases, simply mistaken.
7.21 We find it disturbing that the report should
express criticisms based on so many misunderstandings of the laws
of a Member State. We have drawn attention above to a number
of these errors, notably the reference to the Sexual Offences
(Procedure and Evidence) (Scotland) Act 2002 as still awaiting
Royal Assent (when it received Royal Assent on 11 April 2002),
the erroneous grounds for asserting that the UK has not fully
implemented Article 3(1) relating to the calling of victims as
witnesses, and the misleading suggestion that the United Kingdom
is in breach of Article 7 by not providing for legal expenses
in relation to partie civile proceedings, when the true
position is that such proceedings are unknown in the United Kingdom
and not required by the Framework Decision. We ask the Minister
if she agrees that the analysis made by the Commission of the
relevant law in the United Kingdom does not provide any adequate
basis for the criticisms it makes.
7.22 We also consider it disturbing that the Commission
should base its criticisms of Member States on interpretations
of the Framework Decision which appear to us to be questionable.
We take as an example Article 4(1), which requires Member States
to ensure that victims have access to information by any means
the Member State deems appropriate, but which the Commission interprets
as imposing an obligation to transmit such information in all
cases to the victim. We do not think the Commission's interpretation
is correct, and find its criticisms of Member States to be correspondingly
misplaced, but we ask the Minister for her views on this point.
7.23 We also ask the Minister if she agrees with
the Commission's view that the same criteria should be applied
for implementing an EU Framework Decision as apply to Directives
under the EC Treaty. We also ask if the Minister agrees with the
view, which the Commission appears to take, that each Article
of this Framework Decision requires to be "transposed"
in the form of specific and fresh legislation, or whether she
agrees with our view that implementation is to be assessed by
having regard to the general law of a Member State.
7.24 We shall hold the document under scrutiny
pending the Minister's reply.
11 OJ No. L 82, 22.3.01, p.1. Back
12
Article 35(7) EU in fact refers to the interpretation or application
of acts adopted under Article 34(2), but the Court has no jurisdiction
unless that dispute cannot be resolved by the Council within six
months of the matter being referred to the Council by a Member
State. Back
13
The UK's definition appears in fact to be wider than that of the
Framework Decision, which refers to "a natural person who
has suffered harm, including physical or mental injury, emotional
suffering or economic loss, directly caused by acts or omissions
that are in violation of the criminal law of a Member State". Back
14
This assertion seems to overlook the point that a Member State's
existing law may already fully comply with the Framework Decision;
see para 7.23 below. Back
15
See para 7.21 below. Back
16
A feature of civil law systems by which the victim may intervene
in a criminal matter by making a civil claim for compensation,
which is determined along with the criminal proceedings. Back
17
The criticism appears to be based on the presumption that each
provision of the Framework Decision requires specific transposition,
rather than being a matter for a Member State's general law. The
question of whether a victim is called as a witness in a criminal
trial is, in the United Kingdom at least, a matter of whether
he has relevant evidence to give. Back
18
The reference to the Law Society of Scotland appears to be in
error. The annex to the Commission's report refers instead to
guidelines issued by the Scottish Court Service. Back
19
This is incorrect as far as the United Kingdom is concerned: whether
or not a victim is heard in evidence depends not on his status
as a party to criminal proceedings, but on whether he has relevant
evidence to give. Back
20
This comment seems inconsistent with the Commission's earlier
criticisms of websites and information booklets. Back
21
The reference appears to be to s.67-69 Criminal Justice and Court
Services Act 2000. Back
22
In its natural and ordinary meaning Article 4(4) cannot apply
where the information is only supplied to a victim who requests
it. Similarly, the provision cannot apply in cases under Article
4(3) where a decision is taken not to inform the victim. It is
therefore not surprising that "Member States took very little
action". Back
| 
