1.
TAKING VICTIMS‘
RIGHTS SERIOUSLY
Victims of crime and the Charter of
Fundamental Rights of the European Union

2.
Overview
• A fundamental rights-approach to victim support
(a European perspective)
• Some preliminary remarks on the state and the
development of victim support in the EU

3.
First obligation of a state:
to respect the fundamental rights of
individuals
State S
(Agents
A-Z)
Rights-
holder R

4.
Second obligation of a state:
to protect fundamental rights
State S
Protection by preventive
measures, and as regards
severe violations: by criminal
law (Agents
A-Z) Right to protection
Private Rights-
Person P holder R

5.
ECtHR, case MC v. Bulgaria
‘While the choice of the means to secure compliance with
Article 8 in the sphere of protection against acts of individuals is
in principle within the State's margin of appreciation, effective
deterrence against grave acts such as rape, where fundamental
values and essential aspects of private life are at stake, requires
efficient criminal-law provisions.’
ECtHR, M.C. v. Bulgaria, no. 39272/98, 4 December 2003, para 150.

6.
ECtHR, X and Y v. the Netherlands
‘The protection afforded by the civil law in the case of
wrongdoing of the kind inflicted on Miss Y is insufficient. This is a
case where fundamental values and essential aspects of private
life are at stake. Effective deterrence is indispensable in this area
and it can be achieved only by criminal-law provisions’.
ECtHR, X and Y v. The Netherlands, no. 8978/80, 26 March 1985, para. 27.

7.
If state fails to protect, a third obligation
arises:
to redress the victim
As regards severe
State S
violations: criminal law
proceedings and
State
sanctions as a means of (Agents
protection and redress
compensation
A-Z) The victim’s
right to have
access to
justice
Private Rights-
Person P holder R
Restitution

8.
Criminal proceedings serve two rights of the victim:
the right to effective protection and the right to
redress
Protection: Criminal proceedings reinforce criminal law
definitions as a means of effectively censoring and
deterring criminal conduct
‘The Court reiterates that the obligation to protect the right to life under
Article 2 of the Convention, read in conjunction with the State's general duty
under Article 1 of the Convention to “secure to everyone within [its]
jurisdiction the rights and freedoms defined in [the] Convention”, requires by
implication that there should be some form of effective official investigation
when individuals have been killed as a result of the use of force. The
investigation must be, inter alia, thorough, impartial and careful.’
ECtHR, Carabulea v. Romania, application no. 45661/99, judgment of 13 July
2010, para. 127.

9.
Criminal proceedings serve two rights of the victim:
the right to effective protection and the right to
redress
Affording redress to the victim and granting appropriate
relief
‘In cases of suspicious death or ill-treatment, given the fundamental
importance of the rights protected by Articles 2 and 3, Article 13 requires, in
addition to the payment of compensation where appropriate, a thorough and
effective investigation capable of leading to the identification and
punishment of those responsible for the acts of ill-treatment’.
ECtHR, Carabulea v. Romania, para. 165.

10.
Again: Criminal law is needed
‘The Court has already found in similar cases that any other remedies,
including a claim for damages, are theoretical and illusory, and not capable
of affording redress to the applicant.’
ECtHR, Carabulea v. Romania, para. 166.

11.
Effectiveness of investigation and
prosecution
‘The investigation must also be effective in the sense that it is capable of
leading to the identification and punishment of those responsible. This is
not an obligation of result, but one of means. The authorities must have
taken all reasonable steps to obtain all available evidence concerning the
incident, including, inter alia, eyewitness testimony, forensic evidence and,
where appropriate, an autopsy report’.
ECtHR, Carabulea v. Romania, para. 165.

12.
The victim‘s right to have access to (criminal and
civil) justice under the ECHR and under the FR-
Charter
Under the ECHR Under the FR-Charter
•Procedural limbs of •Procedural limbs of
substantive articles substantive articles
•Access to justice under •Access to justice under
article 13 ECHR article 47 of the Charter
•(Normally, no rights of •Right to fair trial under
victims under article 6 article 47 of the Charter!
ECHR, except partie
civile)

13.
What does the right of the victim to have
access to justice include under the FR-
Charter?
Rights under the ECHR and the FR-Charter:
•Comprehensive definitions in substantive criminal law;
•A thorough and effective investigation capable of leading to the
identification and punishment of offenders;
•Effective access to the investigatory procedure;
•Promptness of proceedings;
•A sufficient element of public scrutiny;
•Proceedings initiated ex officio;
•No manifest disproportion between the gravity of the act and the
punishment imposed.
Additional rights (only) under article 47 of the FR-Charter
•Right to a fair and public hearing by an independent tribunal;
•Right to be advised and represented;
•Legal aid.

14.
Under the FR-Charter victims are
not just witnesses
Given the right of victims to effectively participate in
criminal proceedings it is more appropriate to see them as
parties to criminal proceedings than as witnesses.
Otherwise there is a risk that victims are abused to serve
‚public interests‘ in criminal proceedings.
Victims‘ rights are not contingent on their readiness to
support investigation or prosecution.

15.
The victim‘s right to have access to
justice must be effective in practice
• ECtHR “The Convention is intended to guarantee rights that are not
theoretical or illusory, but practical and effective”
• CJEU: Effet utile
Victims must be given all the practical support which they
need in order to actually and effectively have access to
justice!
• The provision of victim support,
• raising victims’ awareness of their rights,
• responsiveness of law enforcement personnel to the rights and needs
of victims (sufficient training)
are aspects of the victims’ right to have access to justice.

16.
Victim support in the EU
Vast differences as to:
• Availability of support to victims
• The tasks of victim support services relate to and depend on the rights of
victims, in particular in the framework of criminal proceedings
• The role of the state: providing or funding victim support, coordinating support
services
• Availability of volunteers (tradition, culture of charity organisations and
voluntary work)
• Division of labour between generic victim support organisations and
specialised services
• Availability of tailor-made offers for specific groups, e.g. exploited migrant
workers, victims of road-traffic accidents, victims of hate-crimes
• Separation of victim support from support provided to offenders
• Support on request or provided pro-actively intervening with victims
• Level of cooperation with public authorities (mutual trust?)
• Financial/economic crisis has impacted on availability of funds

17.
Victim support in transition ?
There are indications of a transition process from private
initiatives to the development of a public function under
state responsibility and supervision
•A consequence of the victims‘ rights discourse (including an increasing
demand for legal advice)
•However, even if victim support is seen as a public function, voluntary
work can and will remain an indispensable pillar of support provision
•Responsibility requires monitoring,
monitoring requires agreed standards and quality safeguards
•Advocacy by sufficiently independent NGOs remains important