1. Protecting Victims’ Rights in the EU: the theory and practice of diversity of treatment during the criminal trial Dr. Maria Mousmouti, Executive Director, CECL, Associate Research Fellow, IALS

2. Role of the victim  a procedural role (witness, informer, injured party) with few/limited rights OR an independent actor with rights connected to the status of victim?  Generic measures for all victims OR for specific groups of victims – who is protected? All or some victims? Rights of victims in the criminal trial  different traditions  lack of uniformity - diversity  Fragmentation  Regulation at distinct levels and of distinct density Victims: the forgotten figure of the criminal trial?

3. The way from victimophobia to victimophilia A complex patchwork of dispersed and fragmented provisions- Accessiblity? Comprehensibility? Rapid developments – sufficient consideration? A large number of institutions involved  Large number of heteroclite institutions – institutional chaos or safety net?  different status, scope of action and structure  Single institution to provide services or coordinate services OR horizontal delegation of related competencies?  Role of the state and role of civil society?  Victims in general or specific groups of victims?

4. Purpose of the study not an account of transposition measures adopted by member states to comply with the Directive Οbjective: assist in the effective implementation of the Directive Facilitate the exchange of knowledge between member states Examine what works, what does not work and why. Specific objective: Knowledge basis - inventory of legislative measures, institutions and practices - measures for providing support to victims & identifying vulnerable victims ex-ante assessment of the responsiveness of the Directive to specific problems potential shortcomings in the implementation and effectiveness of the Directive.

5. Method Two levels of data collection and analysis  National level  EU level Analysis at national level legal reality (rights on paper) rights in practice Gaps and reasons for them Comparative analysis Map the situation across the EU - identify trends in the protection of victims identify discrepancies with the Directive standards, implementation problems and non- responsiveness to specific problems - good and bad practices recommendations for improving the effectiveness of the Directive

6. Five Themes 1. Respectful treatment and recognition as victims Recognition as a victim and respectful treatment (definitions, right to information, right to be heard, training of practitioners, cooperation and coordination of services). 2. Protection measures Measures of protection from intimidation, retaliation and harm (safeguards in restorative justice services, right to protection, right to avoid contact, protection during investigations, privacy, individual assessment of needs, victims with specific needs, child victims). 3. Support measures Measures of immediate or longer term assistance before and during proceedings (interpretation and translation, access to support services, support from services). 4. Access to justice Rights of victims to access justice (right to understand and to be understood, right to information, rights when making a complaint, decision not to prosecute, legal aid). 5. Compensation and restoration Measures for compensation and restoration through damages paid by the State or by the offender through mediation or restorative justice (reimbursement of expenses, return of property, compensation from the offender).

7. Main findings

8. Unclear purpose of the Directive Article 1: The purpose of the Directive is ‘to ensure that victims of crime receive appropriate information, support and protection and are able to participate in criminal proceedings’ Guidance: ‘to recognize victims as individuals with individual needs, acknowledge their key role in the criminal proceedings and link the protection offered solely to the status of ‘victim’ rather than any other characteristic’. To enable participation and ensure that protection is offered in practice + horizontal requirements for respectful, individualized, non-discriminatory and child sensitive support and protection But what is the expected common result to be achieved by the Directive?

9. Unclear definition of victims Fundamental question for the Directive- NO clear answer the term ‘victim’ is used as a generic term Variable meaning in national legal orders other related terms (witnesses, civil party, injured party) are used in national law – correlation? Fragmented legislative regime makes unclear the circle of persons considered victims

10. Minimum standards are vague clear choice of rights over services at critical points the Directive remains vague - victim support services available to all victims or some? standards that do not ‘prejudice the rights of the accused’ this vagueness makes the standards introduced by the Directive unclear victim support services vary considerably : inexistent/ rudimentary or sophisticated - well coordinated - fragmented – different delivery methods, structure and organisation What does the Directive aim to do? Harmonise victim support services? how does it reflect the existing gaps in protection and resources?

11. Respectful treatment and recognition as victims Right of information - pre-supposes that the victim is aware and in a position to request information Several innovative examples on the victim’s right to be informed. Victims rights remain less clear than those of the accused. No clear right to be heard, at least not by virtue of their status as victims. In practice, victims are heard as a collateral result of the need for the prosecution to prove the case against the defendant

12. Effective protection measures o New approach – personalised approaches (individual assessment of needs) and holistic protection measures before and during proceedings- linked to the status of victim o New element –no assessment procedures or procedures for specific vulnerable groups o Are the requirements of the Directive covered through witness protection measures - is this sufficient and adequate? o Protection relies on the fundamental question of who is a victim o Protection measures during investigation are underdeveloped - delays, lack of accompaniment and ad hoc solutions o Access to restorative justice services exist in some ms - no clear impact on proceedings o Avoidance of contact – right in limbo subject to balancing between adversarialism, orality and public character of the trial

13. Support measures Ambitious requirements on interpretation, translation & support Translation and interpretation – finances? Demarcation between judicial proceedings and preliminary proceedings - profound changes in order to provide support early on National referral arrangements – resources, coordination and systemic problems Minimum standards on general and specialist services and for victims of particular crimes – underlying assumption that services offered are similar – contrary to the reality

14. Access to justice Right to understand and to be understood and to have access to information from the first contact with authorities narrowly perceived as synonymous to linguistic support targeted and appropriate information in a personalised way is complex matter Accessibility of information? Complex information, legal jargon and the psychological condition of victims make communication, expression and understanding complex Comprehensive information? first contact authorities? Who are these authorities? Member states in most cases rely on a general obligation to inform victims without detail. Examples where too little or too much information is provided- what is optimal? Challenges: broad understanding of this right appropriate delivery methods ensure that rights are implemented effectively in practice.

15. Right of victims when making a complaint Procedures are general and a variety of ways for submitting complaints is recorded Physical presence is usually required Alternatives (phone reporting, internet etc) exist but are not widespread. formal acknowledgement of complaints is not a uniform practice, content of the acknowledgement varies – limited choice of language Challenges: focus not only on consolidation but implementation in practice allow victims a choice that best reflects their condition standards need to infiltrate the daily practice of institutions involved

16. Right to legal aid general legal aid systems - Victims are not an obvious or privileged beneficiary of legal aid schemes on the ground of their status as victims offer different types, degree and combinations of legal advice and representation victims as a distinct category of recipients of legal aid- very few ms provision of legal aid linked to victims of specific offences or to the status of being party in criminal proceedings – more ms

17. Effective measures for compensation and restoration Issues related to compensation, reimbursement of costs and return of property are process-oriented and require efficient mechanisms Return of property - delays obliterates rights - the legal framework is an empty shell when the administration of justice is slow Awareness is necessary for implementing these rights - best practices at a low or at reasonable cost? Mechanisms for the reimbursement of expenses exist (expenses, subsistence and travel costs, loss of earnings when victims appear as witnesses) Problems: applicability due to lack of information and awareness, complex and time consuming procedures, linking reimbursement to conviction The perplexity of procedures affects the applicability of this right

18. Rights in paper or in practice? It is not legislation but the actual protection offered that matters The FD shows that implementation is a barrier to victims’ rights in the EU o At national level, victims’ rights need to infiltrate the daily practice of police, prosecution and all other authorities dealing with victims o Feedback mechanisms or monitoring exercises are important o At EU level, mechanisms to monitor the achievements and results of the Directive are required o Commission report in 2017 - necessary measures to comply with the Directive o data showing how victims have accessed the rights in the Directive (art. 28).

19. Conclusions o Victims: a new actor in criminal justice systems – need for clear definition o New rationale in victim related services - reflected in national legislation and practice + unconditionally linked to the status of victim o Common standards for support and protection? o The devil is in the finances o Victims rights need to infiltrate the practice – monitoring on the ground o A common culture between actors and institutions o Ensuring awareness of rights

20. More details at: http://www.victimsprotection.eu/ Protecting Victims’ Rights in the EU: the theory and practice of diversity of treatment during the criminal trial