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Introduction to Victimology and Victims' Rights Van Der Aa, Suzan

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Tilburg University Introduction to victimology and victims' rights

van der Aa, Suzan

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Strengthening judicial cooperation to protect victims of crime

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2014

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Citation for published version (APA): van der Aa, S. (2014). Introduction to victimology and victims' rights. In Strengthening judicial cooperation to protect victims of crime: Handbook (pp. 6-12). Superior Council of Magistracy of Romania.

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This publication has been produced with the financial support of the Specific Programme Criminal Justice of the European Union. The contents of this publication are the sole responsibility of the authors and can in no way be taken to reflect the views of the European Commission.

SUPERIOR COUNCIL OF MAGISTRACY OF ROMANIA

JUST/2012/JPEN/AG/2949

‘STRENGTHENING JUDICIAL

COOPERATION TO PROTECT VICTIMS

OF CRIME’

HANDBOOK

2013-2014

The project JUST/2012/JPEN/AG/2949 “Strengthening judicial cooperation to protect victims

of crime” was financed within the Specific Criminal Justice Program of the European Union and it was implemented by the Superior Council of Magistracy of Romania, as project coordinator, in partnership with SSR - International Training and Study Centre for the Judiciary (Netherlands), Escuela Judicial - Consejo General del Poder Judicial (Spain), National Institute of Magistracy (Romania), Ministry of Justice (Romania) and National School of Clerks (Romania).

The HANDBOOK was elaborated by the team of experts appointed by the project coordinator and partners, as well as with the support of the expert appointed by the Portuguese Association for Victim Support – APAV.

1

Project JUST/2012/JPEN/AG/2949 “Strengthening judicial cooperation to protect victims of crime” financed

within the Specific Criminal Justice Program of the European Union

TABLE OF CONTENTS

I. INTRODUCTION TO VICTIMOLOGY AND VICTIMS’ RIGHTS (Suzan Van der Aa) ................. 6

1. CAUSES OF VICTIMIZATION ................................................................................................ 7

2. NATURE AND EXTENT OF VICTIMIZATION ......................................................................... 8 3. CONSEQUENCES OF VICTIMIZATION .................................................................................. 9

4. REACTIONS TO VICTIMIZATION .......................................................................................... 9

5. VICTIMS’ RIGHTS IN CRIMINAL PROCEEDINGS ............................................................... 10

6. CONCLUSION ..................................................................................................................... 12

II. OVERVIEW OF INTERNATIONAL LEGISLATION ON THE PROTECTION OF CRIME VICTIMS (Tudorel Ștefan)................................................................................................................... 13

1. UNITED NATIONS............................................................................................................... 13 2. COUNCIL OF EUROPE......................................................................................................... 13

3. EUROPEAN CONVENTION OF HUMAN RIGHTS................................................................ 14
III. FOCUS ON SPECIFIC VICTIMS’RIGHTS ............................................................................ 17
1. 2.

INTRODUCTION (Tudorel Ștefan)................................................................................... 17

RIGHT TO BE UNDERSTOOD AND RIGHT TO INFORMATION (Tudorel Ștefan) .......... 20
Right to understand and to be understood (Article 3 of the EU Directive 29/2012) ....... 20 Right to receive information from the first contact with a competent authority (Article

4 of the EU Directive 29/2012) ............................................................................................ 21

Right of victims when making a complaint (Article 5 of the EU Directive 29/2012)......... 23 Right to receive information about their case (Article 6 of the EU Directive 29/2012).... 24 The right to interpreting and translation services (Article 7 of the EU Directive

29/2012)................................................................................................................................ 26

Castro Sousa/APAV) ................................................................................................................. 28

Direct and indirect victims, revictimization and secondary victimization.......................... 28

The aftermath of a crime: victims’ needs and consequences faced................................... 29

Europe evolution signs: from Framework to Directive ....................................................... 30 Right to access victim support services (Article 8 of the EU Directive 29/2012)................ 31

Training of professionals ...................................................................................................... 35

Supporting versus protecting victims of crime .................................................................... 35

Victim Support Europe (VSE) ................................................................................................ 36

Portuguese Association for Victim Support (APAV) ............................................................ 37

Conclusion ............................................................................................................................. 38

4.

RIGHT TO BE HEARD (Daniel Motoi)............................................................................ 39
Introduction .......................................................................................................................... 39

The existing possibilities for the victims of crimes to be heard and to provide evidence in the criminal proceedings within the Member States...................................................... 40

Conclusions............................................................................................................................ 46

5. RIGHT TO THE DECISION NOT TO PROSECUTE (Article 11 of the EU Directive

29/2012) (Tudorel Ștefan) ........................................................................................................ 47

6. RESTORATIVE JUSTICE. CRIMINAL MEDIATION (Jorge Jimenez Martin)........................ 48

2

Project JUST/2012/JPEN/AG/2949 “Strengthening judicial cooperation to protect victims of crime” financed

within the Specific Criminal Justice Program of the European Union

Right to safeguards in the context of restorative justice services (Article 12 of the EU

Directive 29/2012) ................................................................................................................ 48 Introduction .......................................................................................................................... 49 Models of criminal justice .................................................................................................... 50 The current crisis of justice................................................................................................... 51 Concept of restorative justice .............................................................................................. 53

International Instruments – Regulatory Framework........................................................... 54

The principles of restorative justice..................................................................................... 57

Criteria and methods for assessing restorative justice programmes ................................. 58

The Spanish experience in restorative justice ..................................................................... 60 Mediation.............................................................................................................................. 62 Introduction. Origin of Mediation........................................................................................ 62 Concept of mediation ........................................................................................................... 65 Regulation ............................................................................................................................. 67 Types of mediation ............................................................................................................... 70 Characteristics of criminal mediation .................................................................................. 74 Those involved in criminal mediation.................................................................................. 76 Proceedings........................................................................................................................... 78 Fundamentals........................................................................................................................ 83

7. RIGHT TO LEGAL AID (Article 13 of the EU Directive 29/2012) (Ana Castro

Sousa/APAV)............................................................................................................................. 85
Cross-border victims ............................................................................................................. 87 Conclusion ............................................................................................................................. 90

8. COMPENSATION FOR THE VICTIMS OF CRIMES (Daniel Motoi)...................................... 90

Right to compensation. Introduction................................................................................... 90

a. European Convention on the compensation of victims of violent crimes

(Strasbourg, 24.11.1983)................................................................................................... 91

b. Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime

victims................................................................................................................................ 92

c. Council Framework Decision 2001/220/JHA of 15 March 2001 on standing of

victims in criminal proceedings ........................................................................................ 97

d. 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.................................................................................................................... 97
Reimbursement of expenses.............................................................................................. 103 Return of property.............................................................................................................. 104 Conclusions.......................................................................................................................... 105

9. RIGHTS OF VICTIMS RESIDENT IN ANOTHER MEMBER STATE (Article 17 of the EU

Directive 29/2012) (Suzan Van der Aa) ................................................................................. 106
Introduction ........................................................................................................................ 107 Scope of Article 17 Directive .............................................................................................. 108 Analysis of Article 17 per paragraph .................................................................................. 108

3

Project JUST/2012/JPEN/AG/2949 “Strengthening judicial cooperation to protect victims of crime” financed

within the Specific Criminal Justice Program of the European Union

Implementation of Article 17 Directive in the EU Member States ................................... 110

Conclusion ........................................................................................................................... 112

10.

THE RIGHT TO PROTECTION (Suzan Van der Aa) ...................................................... 112
Introduction ........................................................................................................................ 112 Protection Orders................................................................................................................ 114 The European Protection Order ......................................................................................... 115 Victim protection under the EU Victim Directive .............................................................. 116

1. Right to protection (Article 18 of the EU Directive 29/2012).................................... 116 2. Right to avoid contact between victim and offender (Article 19 of the EU

Directive 29/2012)........................................................................................................... 118

3. Right to protection of victims during criminal investigations (Article 20 of the EU

Directive 29/2012)........................................................................................................... 119

4. Right to protection of privacy (Article 21 of the EU Directive 29/2012)................... 120 5. Individual assessment of victims to identify specific protection needs (Article 22

of the EU Directive 29/2012) .......................................................................................... 121

6. Right to protection of victims with specific protection needs during criminal proceedings (Article 23 of the EU Directive 29/2012) ................................................... 124 7. Right to protection of child victims during criminal proceedings (Article 24 of the

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