Rights of victims of crime: Tensions between an integrated approach and a limited legal basis for harmonisation

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1 Rights of victims of crime: Tensions between an integrated approach and a limited legal basis for harmonisation Rianne Letschert and Conny Rijken* 1 Abstract In this article an assessment is made of the potential contribution of the recently adopted Directive on the Rights of Crime Victims and the Directive on Trafficking in Human Beings to improving the position of victims of crime in general and victims of human trafficking in particular. Both legal acts aim to guarantee a comprehensive protection of victims of crime by multi-disciplinary action both at EU and national levels. Such an integrated approach is to be advocated. However, the question arises whether the EU is well equipped to take such action. Based on a critical analysis of the institutional changes in the Area of Freedom, Security and Justice with the adoption of the Treaty of Lisbon, the lack of implementation of EU legislative instruments in this particular area and the future EU accession to the ECHR, a tension between the new legal framework and the ambitious goals of the EU in relation to victim rights is identified. Keywords: European criminal law; Lisbon Treaty; trafficking in human beings; victims of crime 1. Introduction The adoption of the Treaty of Lisbon and the Stockholm Programme opened up reinforced attention of EU-involvement in victims issues and more generally in the area of criminal justice. The 2009 Stockholm Programme calls for an integrated and coordinated approach to victims while acknowledging the unsatisfactory * Rianne Letschert is professor of international law and victimology at INTERVICT, Tilburg University; Conny Rijken is associate professor European law and European criminal law at Tilburg University and research fellow at INTERVICT. Both authors contributed equally to the article. 226 Intersentia

2 Rights of Victims of Crime implementation of the current EU-victims rights instruments: the 2001 Framework Decision on the Standing of Victims in Criminal Proceedings (hereafter Framework Decision on the Standing of Victims) and the 2004 Directive on Compensation for Crime Victims. 1 It calls upon Member States and the European Commission to take a variety of measures; from strengthening legislation and policy to increasing research. The communautarisation of the Area of Freedom, Security and Justice (hereafter AFSJ), by integrating it into the Treaty on the Functioning of the EU (TFEU), paved the way to further develop this area of Union law, including victim rights. To that end both the Framework Decision on the Standing of Victims and the Framework Decision on Trafficking in Human Beings (hereafter THB) were redrafted into directives. The extent to which the post-lisbon legal environment is adequate to realise the integrated and coordinated approach that is aimed at in the two directives is discussed in this article. We assess both the challenges and possibilities post-lisbon with regard to strengthening the position of victims of crime in general and victims of THB in particular by addressing the following core questions: To what extent could the Treaty of Lisbon provide a solid legal basis for an integrated approach towards rights of victims of crime including victims of THB and how could victims benefit from the rights given in the new directives? To answer these questions we first discuss the rationale of EU involvement in the area of crime victims, followed by a critical analysis of the implementation status of existing pre-lisbon legislative acts in the area of victims of crime. Section 3 identifies the possibilities and challenges in relation to rights of victims of crime, following the institutional changes of the AFSJ. Section 4 analyses whether the presented challenges apply to the Directive on the Rights of Victims of Crime and the Directive on Trafficking in Human Beings Rationale of EU involvement The need to improve the plight of victims of crime has been recognised for some decades now, with both national governments and international bodies such as the Council of Europe and the United Nations developing policies and legislation. Since 2001 the European Union has become more active in this field, witnessed in particular by the adoption of the Framework Decision on the Standing of Victims and more recently with the adoption of the new Directive on Rights of Victims of Crime that now 1 Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings, OJ 2001, L 82/1. Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims, OJ 2004, L This contribution does not address the Directive on compensation to crime victims in detail. 2 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, OJ 2012 L 315 and Directive 2011/36 EU of 5 April 2011 on preventing and combating trafficking in human beings and protecting victims, repealing Framework Decision 2002/629/ JHA, OJ 2011, L 101/1. New Journal of European Criminal Law, Vol. 4, Issue 3,

3 Rianne Letschert and Conny Rijken has replaced the framework decision as part of the victim package. 3 The adoption of the framework decision was initially legitimised by invoking a classical EU objective, namely the freedom of movement. The link to developing specific provisions for victims of crime was made by arguing that residents of any Member State of the EU who choose to temporarily or permanently reside in another Member State should receive the same level of protection as the nationals in the host country. This is based on the famous Cowan Case. 4 In this case the European Court of Justice decided that when Community law guarantees a natural person the freedom to go to another Member State, the protection of that person from harm in the Member State in question on the same basis as that of nationals and persons residing there, is a corollary of that freedom of movement (para 17). The framework decision was thus clearly inspired by cross-border victimisations. In addition, it was argued that those actually victimised by crime were likely to be in need of special protection (mainly because foreign victims have no knowledge of the judicial system of the country where they were victimised, and/or may not speak the language etc.). 5 However, it is not practically feasible to focus on and regulate the position of cross-border victims without paying attention to national victims as well. 6 European standardisation of the position of cross-border victims may lead to the situation that cross-border victims enjoy rights not available to nationals, which would be contrary to the freedoms relating to the European common space and cause reverse discrimination. This is the reason that the content of the framework decision and now the directive, ultimately applies to all victims of crime. The directive addresses a wide range of victim rights such as information, participation, protection, compensation, mediation, victim support, legal aid and advice. 7 Increasingly we see that general victim of crime policies branch out into specialised policies and legislation for particular groups of victims. Several specific instruments relating to vulnerable victim groups have since been adopted: Council Framework 3 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, OJ 2012 L 315. The victim package consisted of a proposal for this directive and a proposal for a Regulation on mutual recognition of civil law protection measures. The Commission will, in the years ahead, take action to strengthen existing EU rules on compensation to victims of crime and to revise existing EU legislation on conflict of laws, < 4 Case C-186/87, Cowan, [1989] ECR For more information on the background to the adoption of the Framework Decision, see P. Rock, Constructing Victims Rights: The Home Office, New Labour and Victims (Oxford University Press, 2004). 6 See Groenhuijsen and Pemberton, The EU Framework Decision for Victims of Crime: Does hard law make a difference?, 17 European Journal of Crime, Criminal Law and Criminal Justice, (2009), See for more detailed information Letschert and Groenhuijsen, Global Governance and Global Crime: Do victims fall in between? in Letschert and van Dijk (eds.), The New Faces of Victimhood (Springer, 2011); Groenhuijsen and Pemberton, The EU Framework Decision for Victims of Crime: Does hard law make a difference?, 17 European Journal of Crime, Criminal Law and Criminal Justice, (2009). 228 Intersentia

4 Rights of Victims of Crime Decision 2004/68/JHA on Combating the Sexual Abuse, Sexual Exploitation of Children and Child Pornography, Council Framework Decision 2002/629/JHA on Preventing and Combating Trafficking in Human Beings (which has now been replaced by a directive), and Council Framework Decision 2002/475/JHA on Combating Terrorism which includes a provision relating to the protection of victims. 8 Also, in 2010, the EU commissioned a study on the feasibility of harmonising legislation relating to violence against women, children, and sexual identity violence. 9 Although increased attention for victims of crime is applauded, the attention for specific groups of victims might generate a hierarchy between groups of victims and fragmentation of the rights given. Nevertheless, in many Member States, specific measures for vulnerable victims still need to be devised, evaluated and implemented Between rights and realism: Commission s review on the implementation status of existing EU victim rights instruments Whether the position of the citizens of Europe, when they fall victim to crime, has improved due to EU involvement is debatable. In practice, the implementation of the framework decision on the Standing of Victims was plagued with difficulties. Evaluations reveal both poor compliance with the framework decision and inadequate enforcement of its provisions, to the extent that it is highly questionable whether the minimum level of standards is reached in many European jurisdictions. 10 In 2009, seven years after the deadline for transposition of most of the articles in the Framework Decision on the Standing of Victims, still no or hardly any EU Member State had correctly done so. 11 The European Commission published a first evaluation report on the implementation of the EU framework decision on 16 February 2004 which 8 Also, in 2008, the EU commissioned a study on victims of terrorism, aiming to draft recommendations on how to accommodate their needs and rights, see for the draft recommendation, Letschert, Staiger and Pemberton, Victims of Terrorism, Towards a European Standard of Justice (Springer Publications, 2010). 9 Feasibility study to assess the possibilities, opportunities and needs to standardize national legislation on violence against women, violence against children and sexual orientation violence, available at European Commission Publication Office < library/media/ mlt17038/ mlt17038.pdf>. 10 Brussels, 20April 2009, COM(2009)166 final, Report from the Commission, Pursuant to Article 18 of the Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings. See also APAV-INTERVICT, Report (2010), Implementation of the EU Framework Decision on the standing of victims in the criminal proceedings in the Member States of the European Union, Project on behalf of Victims Support Europe; available at < portal_eng/> and < 11 Brussels, 20 April 2009, COM(2009)166 final, Report from the Commission, Pursuant to Article 18 of the Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings. New Journal of European Criminal Law, Vol. 4, Issue 3,

5 Rianne Letschert and Conny Rijken examined transposal as of 25 March In 2009, the second report of the Commission was published. This latest report takes into account implementation of all articles of the framework decision by 15 February 2008 in all twenty-seven Member States. The Commission found the implementation of this framework decision generally unsatisfactory. The national laws of many Member States sent to the Commission contain numerous omissions. Moreover, they largely reflected existing practice prior to adoption of the framework decision. According to the report, the aim of harmonising legislation in this field has not been achieved owing to the wide disparity in national laws. Many provisions have been implemented by way of nonbinding guidelines, charters and recommendations. The Commission cannot assess whether these are adhered to in practice. 13 Although to a lesser degree, the implementation of the Framework Decision on Combating Trafficking in Human Beings and the Framework Decision on Sexual Exploitation of Children and Child Pornography have not been fully satisfactory either. 14 The evaluation of the Framework Decision on Combating THB took place in Contrary to the implementation of the Framework Decision on the Standing of Victims discussed above, the Commission is more positive on implementation of this framework decision. Although the Commission regretted that four Member States did not provide any or only preliminary information on the implementation, the Commission concluded that the requirements set out in the framework decision had largely been implemented by Member States. Because protection and assistance to victims is not extensively dealt with in the Framework Decision on Combating THB which merely refers to the Framework Decision on the Standing of Victims, these aspects are not evaluated by the Commission. The Framework Decision on Combating THB does refer to the position of vulnerable victims (including children), but the Commission received too little information on this aspect to sufficiently evaluate the implementation. The report therefore notes that the Commission will further develop 12 Brussels, 3 February 2004, COM(2004)54 final, with correction on 16 February 2004, COM(2004)54/2 Report from the Commission, Pursuant to Article 18 of the Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings. 13 Implementation of international norms refers to incorporating them in domestic law through legislation, judicial decision, executive degree, or other processes, while compliance includes implementation, but is broader, concerned with factual matching of state behaviour and international norms. See Shelton, Introduction, Law, Non-Law and the Problem of Soft Law in Shelton (ed.), Commitment and Compliance, The Role of Non-Binding Norms in the International Legal System (Oxford University Press, 2000) pp Interestingly enough, in literature and case law in the field of European law normally no distinction is made between implementation and compliance. Here, implementation is usually the overarching term for both the obligation to transpose European laws (especially directives and framework decisions) into national legislation and the obligation to ensure that compliance is guaranteed on the national level. See Prechal, Directives in EC Law (Oxford University Press, 2006). 14 Commission Report evaluating Framework Decision on Combating THB, , COM(2006)187 fin. and Commission Report evaluating Framework Decision on sexual exploitation of children, 16 November 2007, COM(2007)716 fin. 230 Intersentia

6 Rights of Victims of Crime legislation in respect of these groups of victims. The position of victims of THB is more specifically dealt with in the Directive on a Residence Permit for Victims of THB who cooperate with the authorities. 15 Contrary to what the title of this directive suggests, it does not only deal with a residence permit but includes protective measures for victims as well. This directive has been evaluated and the Commission again is not satisfied with its implementation. 16 The Commission concluded that the impact of the directive does appear to be insufficient in the light of the overall data on victims of trafficking in the EU. 17 Furthermore, the Commission stated that the potential of the Directive in dismantling networks of traffickers while protecting the rights of victims is not being put to full use. 18 The Commission considered the need for amendments to the directive, including the important possibility of issuing a temporary residence permit based on the vulnerable situation of the victim and not necessarily in exchange for cooperation with competent authorities. Other amendments might include having a specified length of reflection period for victims; strengthening the framework of treatment, in particular for minors; reinforcement of the obligation to inform victims of their rights. 19 So far a proposal to revise the directive has not been launched. The evaluation of the Framework Decision on Combating Sexual Abuse, Sexual Exploitation of Children and Child Pornography was reported on in November In line with the evaluation on the Framework Decision on Combating THB the Commission states that with regard to victim protection it could not make an overall evaluation as the information provided was too fragmented. 21 Finally, the Framework Decision on Combating Terrorism with only limited protection and assistance for victims in Article 10 (namely the guarantee that investigations are not dependent on a victim s report and an obligation to take necessary measures to ensure appropriate assistance to victims of terrorist acts), has been evaluated twice. The 2004 evaluation stipulates that some eight Member States have additional measures in place to assist victims and their families. 22 The 2007 report states that two more State 15 Council Directive 2004/81 of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, and who cooperate with the competent authorities, OJ 2004, L261/ Report from the Commission to the European Parliament and the Council 15 October 2010 (COM 2010) Ibid., p Ibid. 19 Ibid., p Report from the Commission based on Article 12 of the Council Framework Decision of 22 December 2003 on combating the sexual exploitation of children and child pornography 16 November 2007 (COM 2007) Impact assessment to the proposal for a Framework Decision on combating the sexual abuse, sexual exploitation of children and child pornography, Brussels, , SEC(2009)355, SEC(2009)356, and COM(2009) Report from the Commission based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism, (COM 2004) 409 fin. p. 7. New Journal of European Criminal Law, Vol. 4, Issue 3,

7 Rianne Letschert and Conny Rijken reported on their specific provisions to assist victims. It does not appear from either of the reports what these measures entail. 23 The overall conclusion of the Commission in the second report was that the most Member States did achieve satisfactory implementation but no specific references were made to Article 10. What follows from these examples is that existing relevant EU legislative acts do not necessarily improve the position of victims on the national level, even if reference is made to victims in the particular legal act. What follows from the provisions included in these act is that they are rather vague and minimal, and often must be implemented in accordance with national law, leaving room for Member State autonomy which is not always to the benefit of the victim. This Member State autonomy was confirmed by the European Court of Justice in the joined cases of Gueye and Salmerón Sánchez where the Court concluded that the Framework Decision [on the standing of victims in criminal proceedings] does not preclude the mandatory imposition of an injunction to stay away for a minimum period, provided for by the criminal law of a Member State, on persons who commit crimes of violence within the family, even when the victims of those crimes oppose the application of such a penalty. 24 Although as stated above this is in accordance with the procedural autonomy of the Member States, this might not or at least not necessarily be to the benefit of the victim The transposition and enforcement gaps Once EU-legislation has been adopted it remains to be seen whether it becomes effective in practice. Even when it has been transposed in national legal orders such as in relation to the substantive provisions in the framework decisions mentioned above, challenges remain, in the sense that enforcement of EU-inspired national provisions may be insufficient or lacking altogether. Research shows that Member States differ in the extent to which they comply with not only the transposition but also the enforcement of EU-legislation. 25 As follows from the evaluation reports discussed above the difficulties in transposal and enforcement are also evident and even particularly pronounced in the field of 23 Report from the Commission based on Article 11 of the Council Framework Decision of 13 June 2002 on combating terrorism, 6 November 2007 (COM 2007) 681 fin. p CJEU 15 September 2011, Joined Cases C-483/09 and C-1/10, Gueye and Salmerón Sánchez. 25 See for instance Falkner and Treib, Three Worlds of Compliance or Four? The EU-15 Compared to New Member States, 64 Journal of Common Market Studies (2008), pp ; Falkner et al., Complying with Europe: EU Harmonisation and Soft Law in the Member States, (Cambridge University Press, 2005); Borzel et al., Recalcitrance, Inefficiency and Support for European Integration. Why Member States Do (Not) Comply with European Law, co-authored with Dudziak, Hofmann, Panke and Carina Sprungk, (2007) CES Working Paper, Harvard University (151); Pemberton and Groenhuijsen, Developing victim s rights within the European Union: past, present and future, in Morosawa et al. (eds.), Victimology and Human Security: New Horizons (Nijmegen, 2012). 232 Intersentia

8 Rights of Victims of Crime victim rights. 26 Many victim rights can only be said to improve the position of victims of crime when they are concrete and sufficiently implemented in practice; a right to advice, support or information is not as important as actually receiving that advice, support and information; not in the least because without it, victims would not be aware of their rights. In addition, specific provisions on victims of particular crimes seem to be too limited not imposing concrete obligations for Member States. Based on the above evaluations, in particular the Framework Decision on the Standing of Victims, we observe that implementation of and compliance with the existing EU legal framework is incomplete and that in cases where implementation is considered satisfactory this does not refer to actual compliance with the provisions concerning the rights of victims but merely refers to the transposition of substantive criminal law provisions. Consequently a large part of Europe s citizens is still deprived of security and access to justice, jeopardising one of the fundamental notions of the Union, namely creating a genuine area of justice for all citizens (emphasis added). 27 This aspiration is affirmed in, among others, the EU Charter on Fundamental Rights 28 and the European Council Stockholm Programme, in which the European Council reaffirms the priority it attaches to the development of an area of freedom, security and justice, responding to a central concern of the peoples of the States brought together in the Union. 29 It is because of this lack of effect of the framework decisions on the position of victims that the Directive on Rights of Victims of Crimes and the THB Directive have adopted a more comprehensive approach taking multidisciplinary action in an integrated way. On the face of it the Treaty of Lisbon, and subsequently the Stockholm Programme, may have a marked influence on the further development of criminal justice and the position of victims of crime across the European Union. In the sections to follow we identify and assess opportunities and challenges of the AFSJ in this field and whether a solid legal basis exists in the post-lisbon legal order to realise such an integrated approach for victims of crime in general and victims of THB in particular. 26 Van der Aa et al., Project Victims in Europe: Implementation of the EU Framework Decision on the standing of victims in the criminal proceedings in the Member States of the European Union (Lisbon, APAV, 2009); Groenhuijsen and Pemberton supra note See also report of the Fundamental Rights Agency, Access to Justice; An Overview of Challenges and Opportunities, 23 March See recital 2 in the Preamble: Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice. 29 Stockholm Programme of 2009 An open and secure Europe serving and protecting the citizens, OJ 2010, C 115/4. New Journal of European Criminal Law, Vol. 4, Issue 3,

9 Rianne Letschert and Conny Rijken 3. Victims of Crime post-lisbon; Opportunities and Challenges The Treaty of Lisbon prescribes several changes, particularly in legislative procedures and relating to fundamental rights, which could positively influence the position of victims of crime. 30 In relation to the Area of Freedom, Security and Justice in general and the position of victims of crime in particular, we have identified five issues that are in our view most pertinent Increased possibilities for further harmonisation of criminal law Harmonisation within the area of police and judicial cooperation in criminal matters was widely contested before the entry into force of the Lisbon Treaty. With a narrow legal basis for harmonisation in substantive criminal law under Article 31(1)(e) TEU (now Article 83 TFEU) and a non-existing legal basis for harmonisation of procedural criminal law, the EU in the pre-lisbon period nevertheless managed to establish a solid body of law in this area by adopting a large number of framework decisions which harmonised parts of substantive and procedural criminal law. Both the Tampere Conclusions and the Hague Programme have recognised or even stimulated these developments by widening the areas for harmonisation of substantive criminal law. The European Court of Justice (ECJ and renamed the Court of Justice of the EU after Lisbon) contributed to this development by communautarising the process of adopting definitions of certain criminal acts (for instance in the area of environmental crimes and ship pollution). With the entry into force of the Lisbon Treaty these developments have found a legal basis in primary European Law, namely in Articles 82 and 83 TFEU. It is to be welcomed that developed practice has been given a legal basis although these articles also put some limitations to it Harmonisation of criminal procedural law In Article 82(2) an important expansion of the competence for approximation in the Area of Freedom, Security and Justice can be found with regard to procedural criminal law. As said, such a formal competence did not exist before the Lisbon Treaty was adopted. According to this provision, minimum rules can be established to facilitate mutual recognition of judgments and judicial decisions and to facilitate police and judicial cooperation in criminal matters. The Parliament and the Council shall adopt legal measures in accordance with the ordinary legislative procedure; which means by 30 Peers, EU Justice and Home Affairs Law (Oxford EU Law Library, 2011), pp. 4 71; A. Klip, European Criminal Law. An Integrative Approach (Intersentia, 2012), pp , , , Intersentia

10 Rights of Victims of Crime qualified majority voting (hereafter QMV) and not by unanimity, as was the case in this area under the third pillar pre-lisbon. Article 82(2) includes some important limitations to the competence question. 31 First of all, the substantive limitations stating that the legal measures shall only concern the following aspects: mutual admissibility of evidence between Member States; the rights of individuals in criminal procedure; and the rights of victims of crime. Especially the last category is of particular importance in the context of this contribution. The Council may extend this list to other aspects of criminal procedure by taking a decision unanimously and after the consent of the Parliament. Furthermore, the provision includes some procedural limitations. The provision must be necessary to facilitate mutual recognition and police and judicial cooperation; it must have a cross-border dimension; differences between the legal traditions and systems of the Member States must be taken into account; and finally, only minimum rules may be adopted. 32 The emergency brake described in paragraph 3 is applicable to paragraph 2. Accordingly one Member State can stop the negotiations on a proposed directive by requesting that the proposal be referred to the European Council. A Member State can only do so if it considers that the proposal would affect fundamental aspects of its criminal justice system. In addition, paragraph 3 also foresees the possibility for enhanced cooperation in case a group of at least nine Member States decide to proceed with the proposed directive. Although it is to be welcomed that the EU has a broader competence in European criminal procedure post-lisbon, we should also acknowledge that it is still rather limited. As follows from the discussion on the legal basis of the Directive on the European Protection Order (EPO) and on the mutual recognition of such orders, it is clear that serious conflicts can arise when determining the scope of Article 82. This is so because such an order does not necessarily originate from criminal authorities but, depending on national legislation, can follow from civil proceedings or even be an administrative decision. This might be problematic since the legal basis for the proposal was Article 82 sub 1(d) relating to the field of judicial cooperation in criminal matters. 33 This particular issue led to serious debates when the proposal was discussed and finally led to a second parallel proposal from the Commission which addressed protection measures as a matter of civil law in the issuing state Peers, EU Criminal Law and the Treaty of Lisbon, (2008) European Law Review, pp Peers, EU Justice and Home Affairs Law (Oxford EU Law Library, 2011), pp Van der Aa and Ouwerkerk, The European Protection Order: No Time to Waste or a Waste of Time?, (2011) European Journal of Crime, Criminal Law and Criminal Justice, pp A Directive on the European protection order was adopted in December 2011, Directive 2011/99/EU of the European Parliament and of the Council of 13 December 2011 on the European Protection Order, OJ 2011, L 338/2. In May 2011 the Commission proposed a second complementary text for a Regulation of the European Parliament and of the Council on mutual recognition of protection measures in civil matters, COM(2011)276, as part of the victim package. This proposal is currently awaiting its first reading in the European Parliament. New Journal of European Criminal Law, Vol. 4, Issue 3,

11 Rianne Letschert and Conny Rijken Harmonisation of substantive criminal law Article 83 concerns the approximation of substantive criminal law. The first part of paragraph 1 seems to include a general provision to adopt minimum rules on definitions as well as on sanctions. Here again, additional requirements are inserted; it concerns particularly serious crimes, which have a cross-border dimension following from the nature or impact or the need to combat them in common. The second part of this paragraph further explains that this competence only refers to terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime. Contrary to the provision of 31(1)e former TEU, this list must be considered exhaustive. 35 Consequently, if an offence is not in this list, the EU is not competent to adopt a legal act with the intention of approximation of the definitions of the particular offence. However, the third part of paragraph 1 creates a possibility to extend the list of crimes. It states that the list may be extended by a decision of the Council taken by unanimity and after having obtained the consent of the Parliament. This will be a time-consuming procedure. A more general competence for approximation can be found in paragraph 2 of Article 83, in those areas where already some approximation has taken place. Here another additional condition is put in place, namely that the approximation is essential to ensure effective implementation of Union policy (not law). The fact that differences exist between the conditions for approximation of procedural criminal law (esp. Article 82(2)) and substantive criminal law (Article 83) might be problematic if proposals for approximation of both areas are to be included in one and the same legislative instrument. As follows from the above, different assessments as to competences will need to be made for the various provisions. The THB Directive that is discussed below, is an example thereof. Nevertheless, in relation to harmonisation the post-lisbon legal framework also created opportunities for the adoption of measures relating to victim rights. Especially because there is now a legal basis for adopting measures in the field of procedural law in which the rights of victims of crime are explicitly referred to. Whether this is only a small step or a major leap will depend on how the limitations in both Article 82 and 83 referred to above are interpreted and applied in the future The application of the Community method to the Area of Freedom, Security and Justice The Community method (now to be re-labelled the Union method ) entails that directives, regulations and decisions are developed jointly by the European Commission, the European Parliament and the Council, most commonly by following 35 Peers, EU Justice and Home Affairs Law, (Oxford EU Law Library, 2011), pp Intersentia

12 Rights of Victims of Crime the ordinary decision-making procedure (Articles 288 TFEU and 289 TFEU), which now also applies to the Area of Freedom, Security, and Justice. This means that the European Parliament and the Council jointly adopt a legal act by QMV, upon the proposal of the Commission or on the initiative of a quarter of the Member States (Article 76 TFEU). Consequently, legal acts in European criminal law cannot be obstructed anymore by only one single State and States can be bound by a legal act against their will. In addition, the main principles underlying EU competence, namely the principle of conferral and the principles of subsidiarity and proportionality will be fully applicable. 36 As discussed above, Articles 82(3), 83(1, 3) prescribe some exceptions to the QMV procedure relevant in relation to victim rights. Using the QMV is considered a serious improvement of the decision-making process, as decision-making under the old third pillar by unanimity limited the effectiveness of EU action because of a possible lack of agreement and the limited role of the European Parliament. See, for instance, the practice in the development of EU legislation where Member States position anticipated the fit with their national legal order. 37 In general, the stronger the position of the negotiators, the more likely it is that it will reflect the lowest common denominator and reserve Member States broad discretion as regards implementation. 38 The anticipated fit between Member States legal orders and the adoption of the Framework Decision on the Standing of Crime Victims was a prime consideration in its drafting and was more important than the stated goal of harmonising and improving the position of victims of crime across the EU. 39 The broad and comprehensive approach reflected in the Directive on THB and the Directive on the Rights of Victims of Crime which are both discussed below, are indications that with QMV procedure Member States can no longer afford to take such positions. In the last two years, the European Commission following the Lisbon requirements submitted several proposals revising existing framework decisions covering victim rights: The Proposal for a Directive on Preventing and Combating Trafficking in Human Beings and Protecting Victims was adopted in April Also in 2010 the Commission submitted a proposal for a Directive on Combating the Sexual Abuse, Sexual Exploitation of Children and Child Pornography, adopted in December Lastly, and most recently, the Directive on Rights of Victims of Crime, establishing minimum standards on the rights, support and protection of victims of crime, was 36 Peers, EU Justice and Home Affairs Law (Oxford EU Law Library, 2011), pp ; A. Klip, European Criminal law. An Integrative Approach (Intersentia, 2012), pp Scharpf, Legitimacy in the multi-level European polity, (2009) European Political Science Review, pp Lavenex, Mutual recognition and the monopoly of force: limits of the single market analogy, (2007) Journal of European Public Policy, pp Groenhuijsen and Pemberton, The EU Framework Decision for Victims of Crime: Does hard law make a difference?, 17 European Journal of Crime, Criminal Law and Criminal Justice, (2009), pp Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA, OJ 2011, L 335/1. New Journal of European Criminal Law, Vol. 4, Issue 3,

13 Rianne Letschert and Conny Rijken adopted in October 2012 which is further discussed below. Although not specifically focussing on victims, the actions taken in relation to the Roadmap for Strengthening Procedural Rights might also affect victims of crime directly or indirectly. These legislative acts concern the Directive on the Right to Interpretation, the Directive on the Right to Information in Criminal Proceedings and the Proposed Directive on Access to a Lawyer. 41 As mentioned above, when adopting measures by using the QMV procedure directives may be adopted that have a broader and more far reaching scope than for instance pre-lisbon Framework Decisions. For instance, to include a provision on free legal aid for victims in the Framework Decision on the Standing of Victims was not achievable but such a provision is now included in the Trafficking Directive in Article 12(2) (if victims do not have the financial means). Note however that such a provision is not included in the Directive on the Rights of Victims of Crime, where it is made dependent on the national procedures (Article 13). Another opportunity post-lisbon is that legal measures are now adopted in directives instead of framework decisions. In contrast to framework decisions, directives have direct effect, meaning that an individual can apply the provisions of the directive in a vertical relationship, if the implementation period has passed and the directive has not been (correctly) implemented. More concretely this means that in those cases, victims can invoke the rights included in the relevant directive before a national judge. In addition national provisions need to be interpreted in conformity with the directive (conform interpretation). 42 When the European Court of Justice in the Pupino case gave indirect effect to the Framework Decision on the Standing of Victims and applied conform interpretation in relation to this framework decision, this judgement was both welcomed and criticised. 43 As will be discussed in the section below, the CJEU has more competences for judicial review. 41 Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, OJ 2010, L 280/1, Directive 2012/13/EU on the right to information in criminal proceedings, OJ 2012, L 142/1, and proposal for a directive on the right to access to a lawyer in criminal proceedings and the right to communicate upon arrest , COM(2011)326 (adopted by the European Parliament on ), respectively. These measures are adopted and proposed based on the Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, OJ 2009, C 295/1. 42 Prechal, Directives in EC Law (Oxford University Press, 2005), pp On the implementation of the THB directive see, C. Rijken, Doorwerking van Richtlijn in Nationaal Strafrecht, Consequenties van de Richtlijn Mensenhandel in de Rechtszaal, Strafblad, (in Dutch). 43 CJEU Case C-105/03, Pupino [2005] ECR I-05285; Spaventa, Opening Pandora s box: some reflections on the constitutional effects of the decision of Pupino, in European Constitutional Law Review, vol. 3, 2007, Intersentia

14 Rights of Victims of Crime 3.3. The role of the Court of Justice of the EU Following the communautarisation of the former third pillar, the CJEU is now fully competent in the Area of Freedom, Security and Justice. 44 The Commission can start an infringement procedure when the Treaty is violated; for instance if Member States fail to implement directives. Preliminary rulings can be requested on matters in the Area and are no longer dependent on the recognition of this competence by the Member State. An annulment procedure can be started against the adoption of (legislative) acts, also by individuals if the act is of direct and individual concern to them. This, however, is not very likely to happen as in this field legislative acts are not likely to be addressed to one person and also because of the historically strict interpretation of direct and individual concern by the Court. Exceptions to the competence of the CJEU are found in Article 276 TFEU, stating that the Court will not be competent to review the validity or proportionality of operations carried out by the police or other law-enforcement services of a Member State or the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security. Since many acts of police and to a lesser extent also prosecutors will easily fall under one or both of these criteria, this must be considered a serious limitation. This is also the case in relation to victims because it is often the police and/or the prosecution service that have a specific responsibility towards victims. An example will illustrate this. If during a police intervention in a factory possible victims of trafficking are not immediately provided with assistance and support, which would be a violation of Article 11(2) of the Trafficking Directive, the CJEU does not have jurisdiction to review the acts of the police. Only if this occurs because of a lack of implementation by the Member State, is the Commission able to start an infringement procedure. Even if such procedure were successful, it would not remedy the position of the (possible) victims whose rights were violated since the procedure is directed to the Member State and aimed at correct implementation of the directive concerned. However, many of the responsibilities the police or prosecution service might have vis-à-vis victims based on the directives, will not fall under the exception of Article 276. Such responsibilities may not qualify as operations or acts necessary for the maintenance of law and order. In such cases the CJEU is competent to review these acts in an annulment procedure or the interpretation of the provisions of the directives in a preliminary ruling. Another limitation is to be found in Article 10 of Protocol 36 to the Lisbon Treaty. It states that the powers of the CJEU in relation to measures adopted in the field of police and judicial cooperation in criminal matters pre-lisbon shall remain the same as before the entering into force of the Lisbon Treaty for a maximum of five years. This includes a limited optional competence for the preliminary rulings with regard to the legal instruments that have been adopted in the field of police and judicial cooperation, 44 Barents, The Court of Justice after the Treaty of Lisbon (2010) 47 CML Rev. pp New Journal of European Criminal Law, Vol. 4, Issue 3,

15 Rianne Letschert and Conny Rijken until these have been amended or until the transition period has transpired. The maximum duration of this transitional period is five years and thus ceases on 1 December 2014, at the latest. 45 More generally and in accordance with Article 9 of this Protocol, amending acts must be taken for all framework decisions and decisions before the Lisbon system will have full effect on these measures. Until that time, the legal acts that were applicable under the EU Treaty pre-lisbon will remain in force. In general the extended powers of the CJEU in the Area of Freedom, Security and Justice could have a positive impact on the position of victims. Especially the direct effect of directives and the preliminary procedure might give the victim in a national procedure some extra guarantees, for instance when a directive is not (correctly) implemented. In case of interpretative questions the highest national court is obliged to refer questions to the CJEU. Furthermore and to a lesser extent, the infringement procedure might indirectly serve the victim when implementation is lacking A more comprehensive fundamental rights culture within the EU The Lisbon Treaty prescribes the accession of the EU to the Council of Europe Convention on Human Rights and Fundamental Freedoms (hereafter ECHR) and the entry into force of the EU Charter on Fundamental Rights. 46 The Fundamental Rights Charter refers in the Preamble to creating an Area of Freedom, Security and Justice. Although the relevant provisions in the Charter focus more on the rights of the defendant than on rights of victims, some provisions relevant for victims of crime are included i.e.: respect for private and family life (Article 7), non-discrimination (Article 21), equality between women and men (Article 23), the rights of the child (Article 24), and prohibition of child labour and protection of young people at work (Article 32). According to Article 51(1) of the Charter, its provisions are addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law. This means that institutions cannot be forced to take specific action to further enhance the protection of fundamental rights but if they do take action they are bound by the provisions in the Charter. The CJEU will be competent to rule on the compatibility with the Charter of EU measures and national measures while 45 A further exception is made for the UK, which may notify the Council at the latest before 1 June 2014 that it will not accept the competence of the CJEU as laid down in the TFEU. 46 The application of the Fundamental Rights Charter is limited because of Article 51 which states that the Member States are only bound by it when they are implementing Union Law. Paragraph 2 of the same article states that the Charter will not establish new powers or tasks for the Union or modify powers or tasks of the institutions as how they are defined in the Treaties. Consequently, the Charter cannot create a general legal basis for adopting legislative measures relating to general human rights obligations. 240 Intersentia

16 Rights of Victims of Crime implementing EU law. 47 An exception is made for Poland and the UK against whom the Charter cannot be invoked. 48 Once the EU has become a contracting party to the ECHR, the European Court of Human Rights (hereafter ECtHR) will be competent to review all acts of the EU institutions and agencies as to whether they comply with the ECHR, including also the acts of the CJEU. This results in a form of external control by a specialised human rights court. The relationship between the ECtHR and the CJEU is being extensively debated but still not resolved. 49 Some references to this relationship can be found in Articles 52(3) and 53 of the Charter on Fundamental Rights. The first article states that in so far as this Charter contains rights which correspond to rights guaranteed by the Convention for the Protection of Human Rights and Fundamental Freedoms, the meaning and scope of those rights shall be the same as those laid down by the said Convention. This provision shall not prevent Union law providing more extensive protection. Article 53 adds to this that the level of protection based on, for instance the ECHR, shall not be restricted or adversely be affected by the application of the Charter. A consequence of accession is that before an individual can complain about one of the acts of Member States while implementing EU law or acts of EU institutions before the ECtHR, all domestic remedies, including EU remedies, must be exhausted. However, legal redress for individuals at the CJEU is very limited and can only be initiated under Article 263 TFEU to review the validity of legal acts in case the act is addressed to that person or which is of direct and individual concern to them. The CJEU does not readily allow individuals to make use of this procedure, although the Lisbon Treaty has eased the conditions for admissibility of actions brought forward by individuals. Based on Article 263 TFEU individuals can also challenge the validity of regulatory acts that affect them directly and which do not entail implementing measures. 50 The full impact of this phrase is yet unknown. The ECtHR can, after accession, review acts of the EU institutions on their compliance with provisions in the ECHR. According to the draft accession agreement as well as the draft explanatory report, this will equally apply for bodies, offices or 47 Article 51(1) Charter. 48 See protocol No 30 to the TFEU. 49 Lock, Walking on a Tightrope: The draft ECHR accession agreement and the autonomy of the EU legal order, 48 CML Rev. (2011), pp ; Jacqué, The accession of the European Union to the European Convention on Human Rights and Fundamental Freedoms, 48 CML Rev. (2011) pp ; Lock, Accession of the EU to the ECHR: Who Would Be Responsible in Strasbourg?, available at: < Harpaz, The European Court of Justice and its Relations with the European Court of Human Rights: The quest for Enhanced Reliance, Coherence and Legitimacy, 46 CML Rev. (2009), pp ; Douglas-Scott, A tale of Two Courts: Luxembourg, Strasbourg and the Growing European Human Rights Acquis, 43 CML Rev. (2006); Wetzel, Improving Fundamental Rights Protection in the European Union: Resolving the Conflict and Confusion between the Luxembourg and Strasbourg Courts, 71 Fordham Law Review, pp Press Release No , Court of Justice of the European Communities, 30 November New Journal of European Criminal Law, Vol. 4, Issue 3,

17 Rianne Letschert and Conny Rijken agencies of the EU as well as persons acting on their behalf. 51 With extended powers of agencies and an increase in the number of EU agencies, the competence to review also agencies will most probably not remain an empty shell. The CJEU is endowed with the competence to review acts of agencies under Article 263 TFEU as well. In relation to victim rights the relevance of the accession of the EU to the ECHR seems to be most likely when the victim s rights under the ECHR are violated by an act of one of the EU institutions or by a Member State when implementing Union law, e.g. the Directive on the Rights of Crime Victims or the Trafficking Directive. Such violations could for instance relate to Article 4 ECHR on the prohibition of slavery or Article 14 and protocol 12 on the prohibition of discrimination. Even more than before, the CJEU has to take into account the case law of the ECtHR. For instance, in the interpretation of the Trafficking Directive the CJEU is also bound by the broad and far-reaching case-law on this matter in relation to Article 4 of the ECHR. 52 If the individual has exhausted local remedies, including the above mentioned option before the CJEU, he/she can lodge an application with the ECtHR. The ECtHR will then also be competent to review the directive as to its compliance with the provisions in the ECHR in general and Article 4 on the prohibition of Slavery, Servitude and Forced Labour in particular. Furthermore, the competence of the ECtHR to review acts of State parties on their consistency with the ECHR remains unaffected. Until now the ECtHR has held that if states have conferred powers on an international organisation, i.e. the EU, and this organisation is considered to protect fundamental rights in a manner which can be considered at least equivalent to that for which the convention provides the states have acted in compliance with their obligations under the convention. The ECtHR considered the protection provided by the EU including its procedures before the CJEU of equivalent level. 53 To illustrate, when considering the rulings of the CJEU in the Kadi cases, in which the Court strongly protected the individual rights of Kadi based on Union law, it is likely that the ECtHR will continue this line of reasoning, 54 although the ECtHR will then also have the competence to review the acts of the EU institutions directly. 51 Report of the Fifth negotiation meeting between the CDDH ad hoc negotiation group and the European Commission on the accession of the European Union to the European Convention of Human Rights, final report to the CDDH 10 June 2013, Article 1(3) and point 21 and 21a. 52 See especially the Rantsev Case, Rantsev v Cyprus and Russia [2010] ECHR 25965/04 (7 January 2010). 53 Bosphorus v Ireland [2005] ECHR 45036/98 (30 June 2005), paras Kadi Cases: Case T-315/01, Kadi v Council and Commission, [2005] ECR II-03649; Joined Cases C & C-415/05, Kadi and Al Barakaat International Foundation v Council and Commission, [2008] ECR I-06351; Case T-85/09, Kadi v Commission, not yet reported; and Joined Cases C-584/10 P, C-593/10 P and C-595/10 P Kadi v Commission, Council, United Kingdom, 18 July Intersentia

18 Rights of Victims of Crime 3.5. The suitability of the single market analogy for the improvement of victim rights Although not necessarily related to the entering into force of the Lisbon Treaty, the question of the suitability of the single market analogy for the improvement of victim rights, in particular the principle of mutual recognition, merits further analysis. It is unclear to what extent the single market analogy can be applied to the Area of Freedom, Security and Justice. As Lavenex critically notes the adoption of the principle of mutual recognition in European Union justice and home affairs co-operation can be seen as a typical case of institutional isomorphism where a policy concept that has proved useful in promoting integration in one area, the single market, has been borrowed to realize another area of integration, the area of freedom, security and justice. 55 It does not do justice to the rather marked differences between these spheres. Mutual recognition within the single market facilitates the flow of goods, services and people across the EU by accepting national requirements and conditions in these areas where exceptions to the freedoms are allowed. Although within criminal justice the link with the four freedoms is less direct and does not provide the general context in which cooperation takes place, mutual recognition was adopted as the cornerstone of such cooperation as early as the Tampere Conclusions. 56 Mutual recognition in this area facilitates the flow of governmental acts, evidence, sentenced or suspected persons and other judicial decisions, with the aim of contributing to the transnational enforcement capabilities of governments. The role of governments is a more active one and at the same time they are an interested party, which is to a lesser extent the case in relation to the four freedoms. Because of this involvement as well as the consequences of applying mutual recognition in this area, governments will only be inclined to recognise a decision when they know that procedural safeguards in the other Member State have been upheld. In addition, the effects of the application of the mutual recognition principle on victims of crime as an additional actor in this field must not be overlooked. Mutual recognition presupposes mutual trust but the diversity of legal cultural traditions and the peculiarities of the criminal justice field (also relating to victim rights) in the various Member States, raises the question whether the principle of mutual recognition could or (maybe should) be applied in all instances. It is generally recognised that mutual recognition should be accompanied with a form of minimum harmonisation. This is not different and maybe applies even more in relation to police and judicial cooperation in criminal matters. Recent (proposed) directives emerging from the Procedural Rights Roadmap have required 55 Lavenex, Mutual recognition and the monopoly of force: limits of the single market analogy, 14 Journal of European Public Policy, (2007), pp Conclusions of the European Council, October 2009, Tampere, para 33. Möstl, Preconditions and Limits of Mutual Recognition, 47 CML Rev. (2010), pp , also Ouwerkerk, Quid Pro Quo? A Comparative Law Perspective on the Mutual Recognition of Judicial Decisions in Criminal Matters (Intersentia, 2011), pp New Journal of European Criminal Law, Vol. 4, Issue 3,

19 Rianne Letschert and Conny Rijken positive actions on behalf of governments to guarantee these safeguards primarily for suspects. With the entering into force of the Lisbon Treaty, the application of mutual recognition in the field of police and judicial cooperation has been extended, increasing the need for minimum harmonisation. Until now the adoption of minimum harmonisation both in relation to criminal procedural law as well as to the procedural guarantees for suspects and victims has been left behind. Although judicial decisions where mutual recognition has been applied are recognised all over the EU, victims as well as suspects, based on the principle of procedural autonomy, still have to refer to their national authorities for enforcement of their rights. Often there is no specific provision in relation to victims or suspects in the relevant instruments. In that case they find themselves in a legal limbo as it is often not clear which national legal order they have to turn to. In transnational situations it is not obvious which Member State is in charge and it is for many persons not clear under what conditions they have access to justice. 57 We therefore wonder whether the principle of procedural autonomy in the Area of Freedom, Security and Justice with a broad application of the mutual recognition principle in general, and in relation to victim rights in particular, can be upheld and at the same time provide victims of crime with adequate tools to apply the rights granted to them at EU level. 58 In addition, improving the position of victims of crime involves empowerment. This suggests a different and more active role of governments than is common in the economic sphere and it is questionable whether Member States can be motivated to such action through the adoption of EU legal instruments. It remains to be seen if modes of governance and cooperation that are successful in fields where the Member States should hold back will be successful in policy areas where they are required to take additional action. 4. Review of the Directive on Victims of Crime and the Trafficking Directive in light of the presented challenges and opportunities In this section the two new directives will be discussed on the basis of the legal challenges and opportunities following the changes in the AFSJ after the adoption of the Lisbon Treaty. These two instruments introduce a new approach since the aim as well as the content of both instruments are broadly formulated and include an integrated approach. In this section we assess to what extent the EU legal framework provides the legal basis for such an approach. The consequences of the procedural 57 Access to Justice in Europe: an Overview of Challenges and Opportunities, March 2011, Report by the Fundamental Rights Agency. 58 Rijken, Re-Balancing Security and Justice: Protection of Fundamental Rigths in Police and Judicial Cooperation in Criminal Matters, 47 CML Rev. (2010), pp Intersentia

20 Rights of Victims of Crime autonomy and the broad application of the principle of mutual recognition is further scrutinised Directive on Victims of Crime On 18 May 2011, the European Commission presented the Directive on establishing Minimum Standards on the Rights, Support and Protection of Victims of Crime, which was adopted by the European Parliament and the Council on 25 October This directive sets out a horizontal framework for addressing the needs of all victims of crime, irrespective of the type of crime or the circumstances or place in which it was committed. The explanatory memorandum explicitly notes that this Directive will not affect provisions contained in other EU acts which address the specific needs of particularly vulnerable victims in a targeted manner. 60 At several events in 2011 and 2012, the adoption of the new directive relating to victims issues was hailed as offering new possibilities for the EU and Member States to improve the position of victims of crime across the EU. 61 When assessing the EU s competence to regulate the different aspects of victim protection according to the subsidiarity principle, reference is, amongst others, made to the large cross-border element of victimisation with significant numbers of EU citizens living, working and travelling around the EU, and falling victims of crime while abroad. These victims will encounter additional difficulties in accessing their rights. The explanatory memorandum notes that citizens should be able to rely on having access to a minimum level of rights across the EU. 62 However, the core assumption of the additional difficulties of cross-border victimisation and its connection to access to justice, freedom of movement and security needs further empirical evidence. The legal basis of the directive can be found in Article 82(2) (harmonisation of procedural criminal law). However, many of the provisions in the directive have a more substantive character. The aim of the directive is to amend and expand the provisions of the framework decision, establishing minimum standards providing for 59 Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, OJ 2012 L Communication from the Commission to the European Parliament, the Courncil, the Economic and social Committee and the Committee of the Regions, Strengthening Victims rights in the EU, COM(2011)274 Final, p From 23 to 24 March 2011, the Hungarian Presidency of the Council of the European Union, with the support of the EU Fundamental Rights Agency, organised a conference on Protecting Victims in the EU: The Road Ahead. From 9 to 10 June 2011, ERA organised a conference on victims of crime, where EU Commissioner Viviane Reding presented the European Commission s Victims Package. During both events, several speakers made optimistic statements on how the new Victims Directive would enhance the position of victims of crime. 62 Proposal for a Directive of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime, , COM(2011) 275 final, p. 11. New Journal of European Criminal Law, Vol. 4, Issue 3,