Post‐Trial Victims' Rights in the EU: Do Law Enforcement Motives Still Reign Supreme?

• Published date: 01 March 2015
• DOI: http://doi.org/10.1111/eulj.12086
• Date: 01 March 2015

Post-Trial Victims’ Rights in the EU:

Do Law Enforcement Motives Still

Reign Supreme?

Suzan van der Aa*

Abstract: The EU legislator has been accused of overemphasizing the repressive aspect

of law enforcement, while paying less attention to civil liberties, such as fundamental

victims’ rights. This paper examines the current position of EU crime victims, with a

special focus on the execution phase of a criminal procedure. A victimological assess-

ment of (1) the Framework Decisions on custodial sentences and probation measures

and (2) the recent EU Victim Directive shows that none of these instruments contains

any mechanisms for safeguarding the rights of victims in the post-trial stage. Regardless

of the various praiseworthy efforts to further the emancipation of victims, when it comes

to the execution phase, victims’ rights are still largely neglected, thereby opening the

door again to criticism. Granting victims a right to information and a (non-influential)

right to be heard would already improve matters greatly. A constitutional assessment

indicates that Europe is competent to make these changes.

I Introduction

The characterisation of crime victims as the ‘forgotten party’ in criminal proceedings,1

whose only function is to serve as witnesses and informants, no longer holds true.

Nowadays, victims of crime are at the centre of attention on a national, European and

international level. From the 1980s onwards, various legal instruments were adopted

with the aim of furthering the emancipation of victims and improving their position

in criminal proceedings,2and the European legislator has certainly played its part in

this respect.

An important milestone was the 2001 EU Framework Decision on the Standing of

Victims in Criminal Proceedings (hereafter: Framework Decision): the first legally

binding instrument specifically dedicated to safeguarding the rights of crime victims

* Ms Suzan van der Aa is an assistant professor working at the International Victimology Institute Tilburg

(INTERVICT) at Tilburg University.

1M.S. Groenhuijsen and R.M. Letschert, Legal Reform on Behalf of Victims of Crime: The Primacy of the

Dutch Legislature in a Changing International Environment? Intervict Working Paper Series on

Victimology and Human Security, 2010, available at: http://www.ssrn.com.

2Some examples are: the United Nations Declaration of Basic Principles of Justice for Victims of Crime

and Abuse (1985), the Council of Europe Recommendation on the Position of the Victim in the

Framework of Criminal Law and Procedure (1985), and the European Forum for Victim Services’

Statement of Victim Rights in the Process of Criminal Justice (1996).

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European Law Journal, Vol. 21, No. 2, March 2015, pp. 239–256.

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by creating minimum standards.3Although the Framework Decision is generally seen

as illustrative of the triumphal progress of victims’ rights, some scholars and non-

governmental organisations have accused the Framework Decision of being preoccu-

pied with law enforcement purposes rather than showing genuine concern for the

protection of individuals.4They claim that by emphasising the rights to information

and participation—which allow victims to fulfil their function as witnesses—while

creating less stringent obligations regarding the rights to protection and support, the

Framework Decision only addressed individual rights insofar as they were also instru-

mental to law enforcement concerns. But even this criticism seems to have died down

when in 2012, under the influence of the Treaty of Lisbon, the Framework Decision

was replaced by the EU Victim Directive,5and further improvements were made to

the rights of protection, reparation and support.6

Despite these and many other achievements in the field of fundamental rights of

crime victims, the European legislator cannot rest on its laurels just yet since not all

stages of the criminal procedure have received equal attention when it comes to

victims’ rights. There seems to be an imbalance between victims’ rights in the (pre)trial

stage and those in the post-trial or execution stage: the first are well developed while

the latter appear almost non-existent. This imbalance may open the door again to

suspicions about the real intentions of the European legislator. Sceptics might argue

that Europe’s concern with victims is mainly motivated by the need for their coopera-

tion in the (pre)trial stage, whereas their involvement in the execution stage—when

they no longer serve as a crucial tool for law enforcement—is less appreciated.

To prove the case in point—namely that victims’ rights in the execution phase have

largely and unjustifiably been neglected so far—part II of this article will critically

examine EU legislation from a victimological perspective with the help of two case

studies:

1. First, the Framework Decision on the mutual recognition of probation and the

Framework Decision on the mutual recognition of custodial sentences7will be

subjected to a victimological assessment, as these are typical examples of

post-trial execution measures that can seriously affect victims. Although these

two instruments were not specifically designed with victims’ interests in mind,

victims’ interests may very well be at stake nonetheless. A female victim of

human trafficking could, for instance, find herself in increased danger if the

Polish trafficker, instead of serving the prison sentence in Spain where he was

convicted, is transferred back to Poland, where the victim resides. The closer

proximity between the victim and the offender might present a vindictive

offender with better opportunities to get even.

3Council Framework Decision 2001/220/JHA of 15 March 2001, OJ 22.03.2001, L 82/1.

4For example, I. Wieczorek, ‘A Needed Balance between Security, Liberty and Justice. Positive Signals

Arrive from the Field of Victims’ Rights’, (2012) 2 European Criminal Law Review 141–157.

5Directive 2012/29/EU of 25 October 2012, OJ 14.11.2012, L315/57.

6Also Wieczorek (2012), op cit.

7Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of

mutual recognition to judgments in criminal matters imposing custodial sentences or measures involving

deprivation of liberty for the purpose of their enforcement in the EU, OJ 3.12.2008, L 327/27 and

Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle of

mutual recognition to judgments and probation decisions with a view to the supervision of probation

measures and alternative sanctions, OJ 16.12.2008, L 337/102.

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