Ref. Ares(2013)3763804 - 19/12/2013 EUROPEAN COMMISSION, DG JUSTICE, December 2013 DG JUSTICE GUIDANCE DOCUMENT related to the transposition and implementation of 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 The purpose of this guidance document is to facilitate the effective and timely transposition of Directive 2012/29/EU by the European Union (EU) Member States that are bound by its provisions. This document is intended to assist the Member States to have a common understanding of the provisions contained in the Directive. This document is the result of a process of consultation of the various interested parties (Member States' national authorities, victims' support organisations, other concerned NGOs). This document is not legally binding and is intended for guidance only. It will not serve as a checklist for assessing Member States’ compliance with the Directive’s provisions. The authoritative interpretation of EU law remains within the sole remit of the European Court of Justice (CJEU) in accordance with the TFEU and TEU Treaties1. This document can therefore neither provide a formal interpretation of EU law, nor provide legal advice on issues of national law. Obligations imposed on the Member States stemming from this Directive will demand transposition by a legislative instrument, while practical and technical implementation to achieve objectives of the Directive might be ensured by appropriate non-legislative measures. Member States have to put in place a specific legal framework to enable individuals to recognise clearly their rights and obligations under this Directive. In all individual provisions of the transposition measures of this Directive the general principles of EU law (e.g. equality and non-discrimination) and the Charter of Fundamental Rights must be respected. Moreover, it is necessary to recall the positive obligations and existing case-law standards of the European Court of Human Rights which contains various references to victims' rights, in particular as regards the access to justice and respect of due process requirements. In addition, Member States should take into account a number of relevant international standards on victims’ protection that have been developed by the United Nations2 and by the Council of Europe.3 1 Treaty on the functioning of the European Union, consolidated version OJ C 326/47 of 26.10.2012 Treaty on the European Union, OJ C 326/13 of 26.10.2012 2 Including the UN Convention on the Elimination of All Forms of Discrimination against Women (1979), Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985), Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters 2002/12, Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime (2005), Draft UN Convention on Justice and Support for Victims of Crime and Abuse of Power (2006). 3 Including Council of Europe Recommendation (1985)11 on the Position of the victim in the Framework of Criminal Law and Procedure, Council of Europe Recommendation (2006) 8 on Assistance to Crime Victims, the 1 EUROPEAN COMMISSION, DG JUSTICE, December 2013 This document is meant to lead Member States through the Directive and suggest possible ways to tackle both - the transposition and implementation process. Taking into account the fact that some Member States have a federal structure (having legislation, policies and cooperation at state, regional, provincial or local level), all references to "national" in this document also refer to such regional or local contexts, where appropriate. 2011 Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice, the 2005 Convention on Action against Trafficking in Human Beings and the 2011 Convention on preventing and combating violence against women and domestic violence. 2 EUROPEAN COMMISSION, DG JUSTICE, December 2013 1. INTRODUCTION — PURPOSE OF THIS DOCUMENT The 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, replacing Council Framework Decision 2001/220/JHA (the ‘Directive’) was published in the Official Journal of the European Union on 14 November 2012. According to Article 27, Member States must bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by 16 November 2015. Improving the rights, support, protection and participation of victims in criminal proceedings is a Commission priority. Thus, the Directive forms an essential part of a horizontal package of measures, launched by the European Commission in May 2011. This aims to strengthen the rights of victims of crime so that any victim can rely on the same basic level of rights, whatever their nationality and wherever in the EU the crime takes place. In addition to this horizontal Directive on rights, support and protection of all victims of crime, other Directives, such as Directive on Trafficking in Human Beings and Directive on Child Sexual Exploitation were previously adopted by the EU in order to address specific situation of victims of these crimes.4 To ensure that the new measures of the Victims' Directive bring real change for victims in Europe, the Commission will offer its assistance to Member States to implement the Directive adequately into national legislation within the next two years, in the wider context of measures set out in the Budapest Roadmap on victims.5 The goal is to improve the real, day- to-day situation of millions of victims of crime across Europe to the greatest extent possible. For many Member States, and for practitioners working in the national systems, the transposition and implementation of this Directive will undoubtedly be complex and sometimes challenging. The Directorate General Justice of the Commission gives its views and suggestions for each of the Directive’s Articles in Section 3 below. This guidance paper will be available on-line on the DG JUSTICE website (www.ec.europa.eu/justice) and it should help national authorities, practitioners and relevant service providers to understand some of the most complicated and far-reaching provisions of the Directive. The implementation of the Directive will greatly benefit from a coordinated, comprehensive and timely implementation process involving all relevant stakeholders. Close dialogue with national administrations, experts (academics and practitioners) and civil society, including non-governmental organisations enables all involved to anticipate problems stemming from implementation. Moreover, it can avert diverging interpretations between Member States that would be detrimental to the effective and coherent application of the Directive throughout the Union. DG JUSTICE therefore aims to organise experts’ meetings and workshops to give impetus to work on implementation and provide Member State authorities with guidance and assistance. 4 Directive 2011/36/EU - http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:101:0001:0011:EN:PDF; Directive 2011/92/EU- http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:335:0001:0014:EN:PDF 5 Resolution of 10 June 2011 on a roadmap for strengthening the rights and protection of victims, in particular in criminal proceedings. 3 EUROPEAN COMMISSION, DG JUSTICE, December 2013 2. VICTIMS DIRECTIVE — CONTENT AND APPROACH This horizontal cross-cutting Directive is divided into six thematic Chapters: General Provisions; Provision of Information and Support; Participation in Criminal Proceedings; Protection of Victims and Recognition of Victims with Specific Protection Needs; Other Provisions; and Final Provisions. These Chapters, according to their thematic content, require different methodological approaches for effective implementation, to ensure that all the rights granted and the services listed will be effectively available for victims and meet their needs. Victims have a whole range of needs that should be addressed to help them recover: to be recognised and treated with respect and dignity; to be protected and supported; to have access to justice; and to obtain compensation and restoration. The core objective of this Directive is to deal with victims’ needs in an individual manner, based on an individual assessment and a targeted and participatory approach towards the provision of information, support, protection and procedural rights. Special attention is given to special support and protection for victims of certain crimes, including victims of gender- based violence, predominantly women, due in particular to the high risk of secondary and repeat victimisation, of intimidation and of retaliation. The Directive also insists on a child- sensitive approach, whereby the best interests of a child victim must be the primary consideration throughout their involvement in criminal proceedings. Furthermore, the Directive is built on the key principle of the ‘role of the victim in the relevant criminal justice system’. The victim’s formal role in national systems will determine the approach taken in implementing some of the key rights in the Directive in the course of criminal proceedings. Since the formal role of victims in criminal proceedings varies significantly between Member States, the implementation of these Articles will be different to