Overwegingen bij COM(2023)424 - Wijziging van Richtlijn 2012/29/EU tot vaststelling van minimumnormen voor de rechten, de ondersteuning en de bescherming van slachtoffers van strafbare feiten - Hoofdinhoud
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| dossier | COM(2023)424 - Wijziging van Richtlijn 2012/29/EU tot vaststelling van minimumnormen voor de rechten, de ondersteuning en de bescherming ... |
|---|---|
| document | COM(2023)424  |
| datum | 12 juli 2023 |
(2)The Commission has assessed how victims have accessed their rights under Directive 2012/29/EU of the European Parliament and the Council and published its results in the evaluation report 55 . The evaluation shows that, although Directive 2012/29/EU has broadly delivered the expected benefits and positively affected victims’ rights, specific problems related to victims’ rights under this Directive persist. The identified shortcomings include insufficient ability to rely on victims’ rights to access information, to support and protection in accordance with each victim’s individual needs, to participate in criminal proceedings and to receive a decision on compensation from the offender during criminal proceedings. This revision of Directive 2012/29/EU of the European Parliament and the Council responds to the shortcomings demonstrated in its evaluation and in numerous consultations.
(3)In order to provide victims with seamless and modern means of exercising their rights, the Member States should make it possible for victims to communicate electronically with national competent authorities. Victims should enjoy the possibility of using electronic tools to receive information about their rights and about their case, report crimes and to otherwise communicate with competent authorities and with support services through communication and information technologies. Victims should be able to choose the method of communication, and the Member States should provide for such communication and information technologies as an alternative to the standard methods of communication, without however replacing them completely.
(4)In order to ensure comprehensive channels of communication taking into account the complexity of victims’ needs in relation to their right to access information, all victims, independently of where in the EU and in what circumstances the crime took place, should be able to access victims’ helplines by using the EU-wide 116 006 telephone number or by connecting to the dedicated websites. Under such helplines, victims should be able to receive the information about their rights, emotional support and be referred to the police or other services, including other specialised helplines – if needed. Such helplines should also refer victims to other specialised helplines, referred to in Commission Decision 2007/116/EC 56 , such as the harmonised number related to child helpline “116 111”, missing children “116 000” and gender-based violence “116 116”.
(5)The general helpline for victims should not affect the operation of the dedicated and specialised helplines such as child helplines and helplines for victims of violence against women and domestic violence as required under Directive (EU) …/…of the European Parliament and of the Council 57 [on combating violence against women and domestic violence]. The general victims’ helplines should function in addition to the specialised helplines.
(6)Crime reporting in the Union should be improved to fight impunity, avoid repeated victimisation and ensure safer societies. It is necessary to fight public insensitivity towards crime, by encouraging people who witness the crime to report crimes and assist victims and by creating safer environments for victims to report crime. For victims who are irregular migrants in the Union, safe environment to report crime means reducing fear of return procedures being launched as a result of contacts with law enforcement authorities. The personal data of victims who are irregular migrants in the Union should not be transferred to the competent migration authorities at least until the completion of the first individual assessment as referred to in Article 22 of Directive 2012/29/EU. Reporting the crime and participating in criminal proceeding under Directive 2012/29/EU do not create any rights regarding the residence status of the victim, neither have any suspensive effect when determining their residence status. All vulnerable victims, such as child victims or victims in detention, who are in a situation of intimidation, or are otherwise dependent from the offender or whose mobility is limited should be able to report crime in conditions that take into account their particular situation and in line with protocols specifically set up for this purpose.
(7)Targeted and integrated support services should be available to a broad range of victims with specific needs. Such victims may include not only victims of sexual violence, victims of gender-based violence and victims of domestic violence, but also victims of trafficking in human beings, victims of organised crimes, victims with disabilities, victims of exploitation, victims of hate crime, victims of terrorism or victims of core international crimes. In response to the shortcomings identified in the evaluation, Member States should set up specific protocols that will organise the actions of specialist support services to comprehensively address the multiple needs of victims with specific needs. Such protocols should be set up in coordination and cooperation between law enforcement, prosecution authorities, judges, detention authorities, restorative justice services and victim support services.
(8)To avoid serious consequences of victimisation in early age, that may negatively affect entire victims’ life, it is crucial to ensure that all child victims receive the highest standard of support and protection. Most vulnerable child victims, including child victims of sexual abuse, child victims of trafficking in human beings and child victims who have otherwise been particularly affected by the crime due to the gravity of crime or to their particular circumstances should benefit from the targeted and integrated support and protection services that includes coordinated and cooperated approach of judicial and social services within the same premises. Such services should be provided in a dedicated space. To ensure that the child victim is effectively protected in cases where a crime involves the holder of parental responsibility, or there is a conflict of interest between the child and the holder of parental responsibility, a provision has been added to ensure that in cases such as reporting of a crime, medical or forensic interviews, referral to support services or psychological support, among others, these acts should not be conditional upon the consent of the holder of parental responsibility, always taking into account the best interests of the child.
(9)For victims to sense that justice is done and to be able to defend their interest, it is important that they are present and able to actively participate in the criminal proceedings. That is why all victims in the Union, independently of their status in the criminal proceeding, which is established by the national law, should have a right to an effective remedy under national law in the event of a breach of their rights under this Directive. In addition, all victims in the Union, independently of their status in the criminal proceeding, should have a right to request a review of decisions that were taken during court proceedings and affect them directly. Such decisions should include at least decisions on interpretation during court hearings and decisions on special protection measures available to victims with special protection needs. The procedural rules under which victims may request a review of such decisions taken during court proceedings should be determined by national law which should provide for the necessary guarantees that such a possibility of revision would not disproportionally prolong the criminal proceeding.
(10)All victims should be assessed in a timely, adequate, efficient and proportionate manner. It is essential to ensure that victims receive the support and protection that correspond to their individual needs. The individual assessment of victims’ needs of support and protection should be done in stages. Within the first stage, all victims should be assessed from the first contact with the competent authorities to ensure that the most vulnerable victims are identified at the very early stages of the proceeding. As of the next stages, victims who need such enhanced assessment should be assessed by victim support services including psychologists. Such services are best placed to assess the state of victims’ well-being. The individual assessment should also take into account the situation of the perpetrator, who may have a history of violence, be in a possession of arms or abusing drugs and as such pose higher risks for victims. The individual assessment of victims’ needs should also include the assessment of victims’ needs of support, not only of protection. It is essential to identify victims who are in need of special support, so a targeted support such as prolonged free of charge psychological aid is provided to those who need it.
(11)As a result of the enhanced assessment of victims’ needs for protection, victims who are in need of physical protection should be able to receive it in a form adapted to their particular situation. Such measures should include the presence of law enforcement authorities or being kept away from the offender on the basis of national protection orders. Such measures may be of a criminal, administrative or civil law nature.
(12)All victims should be able to obtain a decision on compensation from the offender within the criminal proceedings to avoid their engagement in multiple cumbersome and lengthy proceedings in separate civil proceedings. All victims should benefit from the schemes on compensation in which, following a decision on compensation from the offender at the end of the criminal proceeding, they receive, without a delay, the compensation from the state. The state afterwards should be able to recuperate the compensation from the offender. Such approach to compensation saves victims from the risks of secondary victimisation, since victims do not have to contact offenders when receiving compensation. Such facilitated access to compensation from the offender during criminal proceeding does not affect the Member States obligations to ensure the existence of a scheme on compensation to victims of violent intentional crimes committed in their respective territories, which guarantees fair and appropriate compensation to victims under Council Directive 2004/80/EC 58 .
(13)Victims cannot effectively benefit from their rights to information, to support and protection in accordance with their individual needs if they are faced with the national justice schemes that lack cooperation and coordination among those who come into contact with victims. Without close cooperation and coordination of the national law enforcement, prosecution, judiciary, restorative services, compensation services and victim support services, it is difficult for victims to effectively execute their rights under Directive 2012/29/EU. Other authorities, such as healthcare, education and social services, are encouraged to be part of this cooperation and coordination. This is particularly valid in relation to child victims.
(14)National protocols are essential to ensure that victims receive information about their rights and about their case and that victims are adequately assessed to enable them to receive the support and protection that corresponds to each victims’ individual needs that change in time. Protocols should be established by legislative measures in a way that corresponds best to national legal orders and the organisation of justice in the Member States. This should regulate the actions on provision of information to victims, facilitating crime reporting for the most vulnerable victims, including those in detention and the individual assessment of victims’ needs. The legislative measures setting up the protocols should specify essential elements necessary for the processing of data including, the recipients of the personal data and the categories of data that will be processed in the context of operation of the protocols. The protocols should provide for general instructions on how to deal with services and actions under Directive 2012/29/EU in a comprehensive manner without however dealing with individual cases.
(15)Member States should allocate sufficient human and financial resources to ensure an effective compliance with the measures set out in Directive 2012/29/EU. Special attention should be paid to the establishment of victims’ helplines, ensuring smooth functioning of specialist support services and individual assessment of victims’ needs for protection and for support, including where such services are provided by non-governmental organisations.
(16)The Union and the Member States are parties to the UN Convention on the Rights of Persons with Disabilities 59 and are bound by its obligations to the extent of their respective competences. Under Article 13 of that Convention the States Parties are obliged to ensure effective access to justice for persons with disabilities on an equal basis with others, hence the needs to ensure accessibility and provide reasonable accommodation so that victims with disability enjoy their rights as victims on equal basis with others. The accessibility requirements set in Annex I to Directive (EU) 2019/882 of the European Parliament and of the Council 60 can facilitate the implementation of that Convention and ensure that the victims’ rights laid down by Directive 2012/29/EU are accessible for persons with disabilities.
(17)Eurojust should ensure that appropriate consideration is given to requests concerning victims’ rights in accordance with its mandate under Regulation (EU) 2018/1727 of the European Parliament and of the Council 61 .
(18)The collection of accurate and coherent data and the timely publication of collected data and statistics are fundamental to ensure full knowledge on the rights of victims of crime within the Union. Introducing a requirement for Member States to collect and report to the Commission data on the application of national procedures on victims of crime every three years in a harmonised way is expected to constitute a relevant step to ensure the adoption of data-informed policies and strategies. The Fundamental Rights Agency should continue to assist the European Commission and Member States in the collection, production and dissemination of statistics on victims of crime and in reporting on how victims have accessed the rights set out in this Directive.
(19)The principle of effectiveness of Union law requires that Member States put in place adequate and effective remedies in the event of a breach of a right conferred upon individuals by Union law. An effective remedy should be available where the rights under Directive 2012/29/EU are undermined or refused in full or in part.
(20)Since the objectives of this Directive cannot be sufficiently achieved by the Member States due to the need to facilitate judicial cooperation in criminal matters by ensuring trust in equal access to victims’ rights no matter where in the EU the crime happened, but can rather by reason of the scale and effects of the envisaged measures, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives.
(21)In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application.
(22)[In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Ireland has notified [by letter of …,] its wish to take part in the adoption and application of this Directive.]
OR
[In accordance with Articles 1, 2 and 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Directive and is not bound by it or subject to its application.]
(23)The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council 62 and delivered an opinion on [XX XX 2023] 63 ,
(24)Directive 2012/29/EU should therefore be amended accordingly.