September 2020 BREAKING DOWN BARRIERS ACCESS TO JUSTICE IN EUROPE FOR VICTIMS OF INTERNATIONAL CRIMES This Report was funded by the European Union’s Justice Programme (2014-2020). The content of this Report represents the views of FIDH, ECCHR and REDRESS Nederland only and is their sole responsibility. The European Commission does not accept any responsibility for use that may be made of the information it contains. September 2020 BREAKING DOWN BARRIERS ACCESS TO JUSTICE IN EUROPE FOR VICTIMS OF INTERNATIONAL CRIMES BREAKING DOWN BARRIERS • Access to Justice in Europe for Victims of International Crimes 1 More than 100 000 people have been detained in Syria since March 2011, many of them disappeared by Bashar al-Assad’s regime. Among them was Mansour Omari, a journalist and human rights defender who had documented cases of enforced disappearance and other human rights violations during the Syrian Uprising. In 2012, Mansour was arbitrarily detained by Syrian intelligence in a secret military prison in Damascus. Together with four of his fellow detainees, Mansour recorded the names and contact details of 82 of their cellmates on pieces of fabric using ink made from their blood and rust. When Mansour was released after a year in detention, he left the prison with the pieces of fabric sewn into the cuffs and collar of his shirt. Using the information recorded on the cloth, he began contacting the families to inform them of the whereabouts of their loved ones. Mansour was able to escape from Syria to Lebanon and was later resettled by UNHCR in Europe, where he has built a life in exile. However, other detainees have died in detention and the fate of many remains unknown. Mansour hopes that this record of his fellow detainees may contribute to efforts to hold the Syrian regime accountable for their crimes. “I thought of trying to find some way to document all the names without the possibility they would be forgotten. When we were writing them, to me it was a matter of just recording names and contacts to allow us to inform their families later. But when I was released and took the list with me, my relationship with it began to evolve. It’s not just words or letters anymore—in my mind, those are pieces of their souls.” In 2019, the pieces of fabric were presented to the Swedish War Crimes Unit as evidence in support of a criminal complaint filed against 25 high-ranking Syrian intelligence officials by Mansour and eight other torture survivors. As Mansour explains, “the list of names on the cloth is alive and is still revealing the crimes of the Assad regime”. To learn more about Mansour’s journey and the exhibition Syria: Please Don’t Forget Us, visit www.ushmm.org where you can also find information about the documentary film 82 Names: Syria, Please Don’t Forget Us (2018). Cover photograph © United States Holocaust Memorial Museum 2018 Author: Sarah Finnin (FIDH) Graphic design: Alex Storer (IDFP Creative Design), United Kingdom 2 FIDH / ECCHR / REDRESS TABLE OF CONTENTS EXECUTIVE SUMMARY …………………………………………………………………………… 5 ACRONYMS ………………………………………………………………………………………… 8 I. INTRODUCTION ………………………………………………………………………………… 11 II. BACKGROUND …………………………………………………………………………………… 12 The Rise in Extra-Territorial Proceedings Concerning Serious International Crimes …… 12 Increasing Regional and International Coordination in the Fight against Impunity ……… 13 Recognising Victims as the Key to Any Viable Investigation or Prosecution of Serious International Crimes …………………………………………………………………………… 14 III. VICTIMS’ RIGHTS UNDER THE DIRECTIVE AND HUMAN RIGHTS LAW ………………… 16 Victims’ Rights under Human Rights Law …………………………………………………… 16 The EU Victims’ Rights Directive ……………………………………………………………… 17 Jurisdiction Over Serious International Crimes ……………………………………………… 21 COUNTRY CHAPTERS ……………………………………………………………………………… 22 Role of Victims in Criminal Proceedings ……………………………………………………… 24 IV. BELGIUM ………………………………………………………………………………………… 25 Framework for Investigation and Prosecution of International Crimes …………………… 26 Overview of Recent International Crimes Cases in Belgium ……………………………… 29 Framework for Victims’ Rights ………………………………………………………………… 31 Conclusion ……………………………………………………………………………………… 42 V. FRANCE ………………………………………………………………………………………… 45 Framework for Investigation and Prosecution of International Crimes …………………… 46 Overview of Recent International Crimes Cases in France ………………………………… 48 Framework for Victims’ Rights ………………………………………………………………… 50 Conclusion ……………………………………………………………………………………… 59 VI. GERMANY ……………………………………………………………………………………… 61 Framework for Investigation and Prosecution of International Crimes …………………… 62 Overview of Recent International Crimes Cases in Germany ……………………………… 65 Framework for Victims’ Rights ………………………………………………………………… 66 Conclusion ……………………………………………………………………………………… 76 BREAKING DOWN BARRIERS • Access to Justice in Europe for Victims of International Crimes 3 TABLE OF CONTENTS VII. THE NETHERLANDS …………………………………………………………………………… 77 Framework for Investigation and Prosecution of International Crimes …………………… 78 Overview of Recent International Crimes Cases in The Netherlands ……………………… 80 Framework for Victims’ Rights ………………………………………………………………… 82 Conclusion ……………………………………………………………………………………… 90 VIII. SWEDEN ……………………………………………………………………………………… 91 Framework for Investigation and Prosecution of International Crimes …………………… 92 Overview of Recent International Crimes Cases in Sweden ………………………………… 94 Framework for Victims’ Rights ………………………………………………………………… 96 Conclusion ……………………………………………………………………………………… 103 IX. COMMON CHALLENGES, EMERGING BEST PRACTICES AND RECOMMENDATIONS … 105 Applicability of the Victims’ Rights Directive with respect to Victims of Serious International Crimes …………………………………………………………………………… 106 Right to Review of Decisions Not to Prosecute ……………………………………………… 110 Role of the Victim in Criminal Proceedings …………………………………………………… 111 Access to Information to Enable the Exercise of Victims’ Rights ………………………… 112 Providing Updates on Proceedings and Facilitating Effective Participation ……………… 116 Support Services ………………………………………………………………………………… 119 Protection Measures …………………………………………………………………………… 120 Right to Compensation ………………………………………………………………………… 126 Recommendations to the European Union …………………………………………………… 128 ANNEX – LIST OF INTERVIEWS …………………………………………………………………… 131 4 FIDH / ECCHR / REDRESS Gisozi Genocide Memorial Site, Rwanda © AFP/Eric EXECUTIVE Lafforgue 2010 SUMMARY IN THE past decade, six million individuals have sought asylum in the EU, many of them victims of serious international crimes (that is, war crimes, crimes against humanity, genocide, torture and enforced disappearance). However, among those fleeing mass atrocity and persecution are a small but significant number of perpetrators of international crimes, hoping to escape justice. In addition, EU Member States are increasingly faced with cases of their own nationals’ complicity in such crimes (including in the course of their business activities or as so-called foreign fighters). In light of this situation, Member States have established jurisdiction over serious international crimes and have created specialised units to identify, investigate and prosecute potential perpetrators. The EU has also made the fight against impunity for international crimes one of its priorities. In recent years, the mandates of both Eurojust and Europol have been extended to improve cooperation and coordination in this area (most notably with respect to crimes committed in Syria). At the same time, the EU has committed to improving the position of all victims within the EU, in particular through its Directive on minimum standards for the rights, support and protection of victims of crime (hereinafter the Victims’ Rights Directive or Directive). This Report examines the extent to which the specialised units within the EU that investigate and prosecute serious international crimes uphold EU standards on victims’ rights. It is based on research conducted between 2019 and 2020, including approximately 140 interviews with practitioners and policy makers in five Member States—Belgium, France, Germany, the Netherlands and Sweden. The Report includes five country chapters that examine the law and practice in these countries as well as an analysis of common challenges and emerging best practices. BREAKING DOWN BARRIERS • Access to Justice in Europe for Victims of International Crimes 5 The conclusion we have reached is unequivocal: while substantial progress has been made in recent years, victims of serious international crimes continue to face significant legal and practical barriers that limit the exercise of their rights. Many of these barriers stem from the inherent difficulties in investigating and prosecuting such crimes at the domestic level. For example: - Many victims are unaware of the possibility to report serious international crimes to national authorities. Moreover, the complex legal framework that applies to such cases means victims can only exercise their rights effectively with the support of a lawyer and/or a specialised NGO. - Some victims (or their family members) continue to live in conflict areas or situations of ongoing insecurity and are therefore hesitant to cooperate in investigations due to the real risk of reprisal. For Member States to provide any protection in such circumstances is both challenging and costly. - Requiring victims who have suffered severe trauma to revisit traumatic events carries a high risk of secondary victimisation. Yet general victim support services