Opinion of the Economic and Social Committee on the "Green Paper on compensation to crime victims"

(COM(2001) 536 final)

(2002/C 125/09)

On 28 September 2001 the Commission decided to consult the Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the "Green Paper on compensation to crime victims".

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 27 February 2002. The rapporteur was Mr Melícias.

At its 389th Plenary Session (meeting of 20 March 2002), the Economic and Social Committee adopted the following opinion by 85 votes to three with no abstentions.

1. Introduction

1.1. The State first took on the role of the injured party in the settlement of criminal cases in the 18th century, thereby taking the place of the victim. Ever since then, individuals who are the victims of crime have increasingly lost the chance to speak for themselves and have been ignored more and more as they ceased to play any part in proceedings. The leading role taken by the State, and the consequent sidelining of the victim, have brought suffering and injustice for crime victims and disrupted the social order.

1.1.1. A negative and unsustainable situation has thus developed which has slowly begun to be questioned only in the last few years.

1.2. In almost all countries for some twenty years now, groupings of citizens' associations - today under the umbrella of a European forum - act as a mouthpiece and high-profile advocate for those who suffer the psychological, physical and material consequences of crime.

1.3. In tandem with these groupings, and in response to developments in penal systems and in the defence of the principles of social solidarity and equity, a number of countries have come to pay more attention to the hitherto largely overlooked victims of crime.

1.3.1. They are doing this not only by taking greater account of the position of crime victims in the workings of the criminal justice system but also by contemplating compensation in cases where failure to provide it would fly in the face of basic justice.

1.4. The United Nations and the Council of Europe have been conducting important work in pursuit of international solutions to the problems faced by crime victims. The Council of Europe approved a European Convention in 1983 (not yet ratified by all signatories) and the United Nations adopted a Declaration in 1985.

1.5. The European Union has inevitably followed suit, to safeguard a society in which safety and the justice system rest on a culture of solidarity that implies a true sharing of responsibility and the fundamental universal right of each individual not to be left alone in the face of aggression, danger or crime.

1.6. The sterling work done by the Commission in this field (Communication issued in July 1999) provided a full response to the decisions set out in the Vienna Action Plan(1) and influenced the conclusions of the Tampere European Council of 1999 (Point 32 of Presidency Conclusions). The establishment of an area of freedom, security and justice in the Member States, initiated by the Amsterdam Treaty, has taken on particular meaning and importance, as it focuses on - and strives to resolve - practical problems faced by individual Community citizens. The European Parliament too has firmly supported the improvement of compensation for crime victims, adopting resolutions on the subject in 1989 and 1999.

1.7. During the Portuguese presidency in the first half of 2000, and at its initiative, the Council recognised the need for a framework decision on the standing of victims in criminal proceedings. The initiative was strongly backed by the Commission and by succeeding presidencies, and the decision was duly adopted in March 2001.

1.8. Spurred by the preparatory work undertaken by the Swedish presidency, the Commission has now tabled a green paper that makes a further key contribution to securing State compensation for crime victims, providing a full response to the Tampere Council recommendation.

1.9. As the institutional forum for organised civil society, the ESC applauds this initiative.

2. Gist of the Commission document

2.1. The Green Paper launches a consultation process on how to safeguard and improve State compensation for crime victims in the EU.

2.2. The Green Paper gives an overview of European legislation in this field.

2.3. It also provides details of the situation in the Member States.

2.4. It puts forward information and ideas that lead it to pose basic questions concerning such issues as:

- the need for, and scope of, action at EU level;

- how to enable victims of crime to obtain State compensation in all Member States;

- how to make it easier for victims of crime to obtain State compensation when the crime was not committed in the victim's country of residence.

2.5. The manner in which these issues are addressed in the Commission initiative will have important implications, as it could:

- make it obligatory for all Member States to provide an adequate level of State compensation for crime victims by establishing a possible common denominator for this level;

- ensure the existence of practical mechanisms, through cooperation between national authorities and the development of existing systems, to make it easier to obtain State compensation whether or not the victim is resident in the Member State where the crime was committed.

3. General comments

3.1. The EU's Member States have very different traditions, cultures and practices, and their treatment of crime victims varies widely. It is clear from the study conducted following the Umeå conference in October 2000 and from the Green Paper that State compensation of crime vi ctims ranges from virtually zero to highly acceptable levels which nevertheless could not feasibly be adopted in other Member States at present.

3.1.1. Analysis of this issue in the context of enlargement further highlights the differences.

3.1.2. The exercise is thus clearly a difficult one, and must be carried out with great caution. It is nevertheless essential as an indication and symbol of the practical success of the European venture, centred on the individual and his or her practical problems.

3.2. It is undoubtedly desirable - and acceptable for all Member States - for all countries to have State-guaranteed compensation systems for crime victims.

3.2.1. It is also both right and proper to ensure that such systems provide an adequate level of protection.

3.2.2. Arriving at a consensus on how to determine the right level and deal with the consequences will obviously be difficult, and will require considerable commitment from the relevant authorities of the Member States if truly positive results are to be achieved.

3.3. A positive momentum must be built up, with action to ensure that in cases where a higher level of protection has already been set, there is no danger that the establishment of a lowest common denominator will deter countries from retaining or increasing their existing levels.

3.3.1. At the same time, in cases where no compensation is yet envisaged or where the level is below the agreed minimum, positive steps are needed to dispel the temptation to turn the minimum level into the maximum.

3.3.2. This is the only way to ensure that the spirit of a common system is upheld, fairness is respected, and people are protected.

3.4. For the Commission initiative to have any meaning, there must be reference parameters and thus common standards to foster convergence.

3.4.1. Once again, the aim must be to strike a balance - notwithstanding the inherent tension that often exists - between the interests of the individual citizen and the collective interests represented by the concrete circumstances of each Member State, thereby helping to build a common area of freedom, security and justice for all the Community's citizens.

3.5. The questions posed by the Commission provide reasons and pointers for achieving this delicate balance.

3.6. These warnings and our common culture of solidarity and shared responsibility should be borne in mind when the current opinion is read.

4. Replies to the Commission's questions

4.1. Question 1: Should a Community initiative on State compensation to crime victims pursue the objectives listed in Chapter 4.2? Are there other objectives that should be pursued as well?

4.1.1. The answer to the first part of the question is clearly "yes". The three listed objectives are fundamental and must be addressed in a Commission initiative; a directive would appear to be the most appropriate instrument for this. The Committee fully supports such an initiative.

4.1.1.1. Other objectives - e.g. providing victims with full and clearly worded information, or the need to ensure that victims are able to make full use of the instruments available to them - will be driven by the three listed objectives. At all events, the answers to several of the following questions will go a long way towards achieving these objectives.

4.1.1.2. The Committee is fully aware of the financial implications which the implementation of a Commission initiative in this field will have for the Member States. However, it feels that this is an area of crucial importance for EU integration, concerning as it does the status of the citizen in a true common judicial area, the protection of particularly delicate and essential rights, and the approximation of laws founded on shared objectives that are accepted as the keystone of a better common future.

4.2. Question 2: What should be the eligibility criteria for types of crime and for types of injury covered by a minimum standard?

4.2.1. Always remembering the need to avoid resorting to lowest common denominators in the light of the situation in each Member State, but instead to set a minimum standard which guarantees the position and interests of victims within the EU, the Green Paper's response to this question is satisfactory.

4.2.2. Analysis of the criteria put forward:

- Eligible victims - both direct and indirect victims; the definitions should be standardised as far as possible, without forgetting dependants, bystanders and "good samaritans".

- Criteria related to types of crime and types of injury: the most acceptable approach at present would seem to be to provide compensation for the effects of violent crimes that cause physical or psychological (immaterial, pain/suffering) damage or material damage that is indissolubly linked thereto. Purely material damage, even if inflicted without the use of violence, must be considered if it causes the victim serious economic hardship. Victims of drink-driving or of driving under the influence of other substances which impair the ability to drive should also be considered, as in cases where the driver has acted with intent and caused physical injury or loss of life, it must be formally recognised that a violent crime has been committed and that appropriate action must follow.

- A generic definition of the crimes covered is therefore needed.

4.3. Question 3: Should the degree of proof required from an applicant for State compensation be included in a minimum standard?

4.3.1. Provision must be made to ensure that sufficiently clear evidence is submitted, together with means of proving it (and the principle that those who abuse the system will be punished must be established).

4.3.1.1. Provision must also be made to enshrine the principle of the utmost facility and latitude in the submission of proof (understood to mean "the highest probability of establishing a causal link between the alleged crime and the damages sought"), outlawing procedural mechanisms that impede this.

4.3.1.2. Aside from the basic principles which each Member State must respect as a matter of solidarity (and which it is for "European common sense" to judge), the minimum common standard could be found as regards a reasonable deadline (with due exceptions) for the submission of evidence or proof, always bearing in mind the particularly vulnerable and uncertain position which the victim is likely to be in, and the need to avoid secondary victimisation.

4.4. Question 4: Should immaterial damages be included in a minimum standard, and if yes, could a definition of such damages be included?

4.4.1. The Committee fully supports the Green Paper's stance regarding compensation for material losses. Particular attention must be paid to the most disadvantaged victims.

4.4.2. A minimum standard for immaterial damages is vital. The Green Paper's proposal for this also deserves endorsement, given the difficulty of arriving at a common definition. Special attention must be paid to the situation of victims in cases when the effects of the damage continue to be felt for some time.

4.4.2.1. The principle of following the line taken by national legislation as regards civil liability would be a major step forward, even if it would not necessarily lead to standardisation.

4.4.2.2. However, one step towards standardisation might be to draw up a common indicative table establishing compensation levels for each category of crime and laying down the criteria for including situations in each category in the table.

4.4.2.3. However, there is a danger of indicative tables being applied mechanically by the authorities, thereby depriving all decision-taking of the human touch. To counter this, victim-support organisations should be consulted when decisions are taken. Because of their backgrounds and sensibilities, such organisations could provide vital information in real-life situations, thus ensuring that the decisions taken are not automatic and lacking compassion.

4.5. Question 5: Could compensation for permanent disability be defined for the purposes of a minimum standard?

4.5.1. The Committee broadly supports the Commission's line on this. It stresses that the abovementioned minimum standard of compensation for immaterial damages must not overlook all possible cases of permanent disability or cases of immaterial damage resulting from a long-term disability. A common graduated table of disability might be helpful here.

4.6. Question 6: Should a minimum standard allow for taking into account the victim's financial situation, when determining the victim's eligibility or when determining the amount of the compensation?

4.6.1. The Committee's answer has to be no. The fairest solution would seem to be compensation based on actual damage.

4.6.2. The Committee also broadly supports the Commission's stance regarding the level of compensation. For immaterial damages, the most viable solution seems to be for each Member State to decide for itself how to determine the amount of compensation. The use of a common table, as mentioned above, should not however be ruled out, despite the difficulties.

4.6.3. When dealing with cross-border victims, account must be taken of possible differences in Member States' treatment. This matter will be dealt with at a later point.

4.7. Question 7: How should the subsidiary character of State compensation, in relation to other sources of compensation to victims, be defined in a minimum standard?

4.7.1. It is not necessary to wait until the end of the proceedings before countenancing the possibility of receiving compensation either from the offender or by some other means.

4.7.2. If compensation procedures are very protracted, it is the victim who will suffer.

4.7.3. State compensation, and the prompt advance payment of a sufficient sum to meet the victim's actual needs, must be enshrined as the immediate first step wherever necessary.

4.7.4. The State will then have a right to recourse in the light of any subsequent compensation payments received from the offender.

4.7.5. Affirmation of the principle of the subsidiary character of State compensation must not lead to a failure to intervene or to a solution that creates secondary victimisation.

4.7.6. In practice, State compensation will frequently have to be the first answer.

4.7.7. If a victim cannot obtain State compensation until he has proved that he has unsuccessfully explored all other possible avenues (compensation from the offender, from insurance, etc.), the slow and difficult nature of the process will victimise him still further and make State assistance appear somewhat hypocritical.

4.8. Question 8: What other sources of compensation should be deducted from State compensation?

4.8.1. As the Green Paper notes, this question arises mainly in relation to private insurance.

4.8.1.1. In this context the question of insurance is similar to that of the victim's economic situation.

4.8.1.2. Nevertheless, one could countenance the aid paid by the State being returned when the victim receives compensation through an insurance policy. If the sum received under this policy is equal to or less than the amount provided by the State, the repayment should be the exact sum received under the policy.

4.8.1.3. It might be argued that this would adequately protect the interests of the victim.

4.8.1.4. However, the key question here is complementarity rather than subsidiarity. The existence of any private insurance cover should be ignored and the State should proceed as if the victim had no cover, as otherwise the victim would be penalised for his circumspection.

4.8.1.5. If State compensation is to be treated as a subsidiary form, the State should promote wider use of private or social insurance by providing special incentives or tax rebates for them.

4.9. Question 9: Should a possibility for advance payment be included in a minimum standard?

4.9.1. From the paragraphs which lead up to this question (points 5.5 to 5.8 of the Green Paper), it follows that as a matter of principle, State subrogation in the victim's right to compensation arises from the declared subsidiary nature of the State's intervention.

4.9.1.1. However, from the standpoint of the needs of the victim, this principle could have unacceptable implications for the sequence of State intervention.

4.9.2. Relegating the State's action until all other possibilities have been exhausted does not defend the victim's interests, and condones solutions which are inherently contradictory.

4.9.3. In any situation, advance payments are the most effective way to give the victim prompt assistance and rule out the possibility of the victim suffering exclusion.

4.9.4. Where sufficient elements are in place to justify it, the use of advance payments as the priority mechanism can reduce the problem of deadlines for compensation claims, as it gives the victim a strong incentive to submit the claim as quickly as possible and obliges the State to conduct a preliminary examination and take a decision that will generally facilitate the subsequent procedure.

4.9.5. At all events, the Committee agrees that the deadlines should be as long as possible and that exceptions should be made for special cases where the deadlines should be made even longer (e.g. sexual abuse of minors), always remembering that the interests of the victim come first. This would not seem likely to cause particular damage for the State.

4.9.6. Reporting the crime to the authorities, under the terms and subject to the exceptions set out in point 5.6 of the Green Paper, should be included in a minimum standard, with exceptions for cases where it is acceptable or inevitable for the victim to do otherwise.

4.10. Question 10: Should criteria related to the victim's behaviour in relation to the crime, to his or her involvement in criminal activity in general, or other considerations of justice or public policy, be included in a minimum standard?

4.10.1. The victim's behaviour cannot be overlooked if the breach of law and the resultant damage stemmed from it. Such behaviour may negatively influence - or actually rule out - State compensation. However, the victim's social, moral or other conduct hitherto - even if illegal - cannot be automatically linked to a particular instance of victimisation in order to justify refusal of State compensation. This would open the way to all kinds of discrimination that would be unacceptable in terms of human rights and a common area of free movement, freedom and guarantees.

4.10.2. To protect the victim and ensure that he or she is treated fairly, there are therefore grounds for reviewing and tightening up the principles set out in the 1983 European Convention. For instance, it is unacceptable that a victim should be penalised because of past criminal activity that is completely unrelated to the crime of which he is a victim. Similarly, it would be unacceptable to invoke public policy considerations in order to discriminate against certain forms of behaviour or groups of people in relation to State compensation.

4.11. Question 11: What other criteria, not covered in this paper, could be considered for inclusion in a minimum standard?

4.11.1. Pursuing its line of thinking from the previous question, the Committee does not see any point in devising other criteria.

4.12. Question 12: Would a right for the cross-border victim to receive assistance from an authority in his or her Member State of residence when applying for State compensation from another Member State be an appropriate way of facilitating access to State compensation for cross-border victims?

4.12.1. A viable solution in many cases could be interactive cooperation via the network of national bodies dealing with victim compensation, or the European network of associations and other organised civil society bodies dealing with support for crime victims, alongside cooperation between the countries involved in the European Judicial Network. It is right that there should be a national body - preferably involving the civil society organisations which provide victim support - responsible for all national relations and action and acting either singly and/or in cooperation with other bodies in the Member State.

4.12.2. Complementary action between Member States can help overcome some of the obstacles mentioned in point 6.2 of the Green Paper, once the common procedural points which all Member States must follow have been established.

4.12.3. It seems difficult in the present circumstances to avoid the principle of territoriality.

4.12.3.1. Given that this is the best known and most developed basis for cooperation and mutual assistance, it might be worth considering a hybrid system in which the primacy of territoriality was backed by a complementary "double responsibility" system which the victim could use to top up the compensation which he or she could receive in the State where the crime occurred, in cases where the compensation system of his or her Member State was more favourable.

4.12.4. For the complementary process, and using a form of mutual recognition, the victim's Member State of residence would be obliged to accept the result of the compensation procedure in the State where the crime occurred.

4.12.4.1. However, this would not of course prevent the victim submitting an application for complementary assistance in his or her Member State of residence, enabling him or her to receive advance payments where justified.

4.13. Question 13: Would a possibility for the victim to get State compensation in his or her Member State of residence as well as in the Member State where the crime occurred be an appropriate way of facilitating access to State compensation for cross-border victims?

4.13.1. The intrinsic difficulty in the double responsibility system is that the victim's Member State of residence has to deal with a situation arising in another country, and with all the related information (the need for close relations between Member States has to be remembered here, as do the difficulties which the victim will face in obtaining proof).

4.13.1.1. Application of this system could lead to potentially diverging decisions arising for procedural reasons.

4.13.2. The hybrid system mooted in the answer to the previous question would allow similar cases to receive the same treatment in all Member States and, at the same time, would ensure that nationals of a Member State with a more favourable system were not treated less favourably than fellow victims of a crime within that country.

4.13.2.1. On the other hand, it is clear that such a system would do little to encourage the less generous countries to move towards convergence.

4.13.3. To avoid this system leading to stratified solutions in each Member State, a benchmark should be established based on the best features of the various Member States' systems. This would be the optimum convergence point.

4.13.3.1. Each Member State should be required to reach this point within a reasonable time-frame, depending on their initial situation.

4.13.3.2. There would thus be two common standards for determining the action to be taken:

- a standard below which the system would lose its credibility; the less generous systems would have to attain this standard immediately as an initial step towards further improvement;

- another standard representing a quality response which would serve as a development benchmark and incentive, and as a yardstick for assessing the progress made during the commonly accepted reasonable time-frame.

4.13.4. The possible harmonisation could be reached in successive stages, tempered by the hybrid territoriality/complementarity mechanism or by a joint standardisation fund.

4.13.5. A schedule for reaching the benchmark standard could be established, e.g. in three or four stages, and Member States could be placed in a grid to chart their progress towards that standard.

4.14. Question 14: What solutions, other than those outlined in this paper, could be envisaged to facilitate access to State compensation for cross-border victims?

4.14.1. The hybrid system outlined above is one possibility.

4.14.2. It is also worth mentioning the work being done at the United Nations to set up a support fund for cross-border crime victims. From the standpoint of the current opinion, this fund could provide compensation to top up that offered by Member States which are unable to meet the minimum sums deemed reasonable. The fund would also help with the publicity and information campaigns that will be needed within the Union.

4.15. Question 15: Should harmonised forms, possible to use when applying for State compensation in all Member States, be established?

4.15.1. As already noted, harmonised forms - including translations in the main languages - are vital for the strategy advocated in the Green Paper.

4.16. Other aspects to be covered by standards

4.16.1. For victims of cross-border crime in particular, a common standard is needed covering the type of information that should be available throughout the Union, how to access it and the bodies which provide it.

4.16.2. In cross-border cases, the use of the main European working languages (and sign language in the case of victims with hearing impediments) should be accepted - together with their interpreting - by all countries. As already noted, the use of common bilingual or trilingual forms is vital.

4.16.3. Consideration should be given to a standard establishing a maximum time limit for the processing of compensation applications by the relevant authorities.

4.16.4. The official documents which the victim needs to prepare his or her application should be provided free of charge. The authorities should provide assistance in the use of these documents, the contents and wording of which should be comprehensible, whether directly or indirectly, to the victim. Preference should be given to ultra high-speed communication technologies.

5. Summary conclusions

5.1. While reiterating the cautionary remarks made at the beginning of this opinion, and mindful of the difficulties in making the final decisions, which will inevitably reflect the level of consensus that proves possible, the Committee thinks that solid steps are being taken in the right direction.

5.2. Given that the main issue here is the best way to deal with the situation of cross-border victims, the Committee reiterates the view that in order to avoid the difficulties raised it is necessary to strive for the most stringent common standard possible, setting different starting levels and establishing subsequent steps to bring about a gradual alignment.

5.3. A strong emphasis must be placed on the principle of solidarity and equal treatment for people throughout the common area, without forgetting that convergence is a process and not just a goal, and that the idea of "European citizen" should be a quality benchmark and must never mean a downgrading.

5.4. In other words, the adoption of a maximum reference standard must mean that the Member States reach a minimum common denominator.

5.5. To this end, the progressive development targets must be defined in terms of both content and timescale, and penalties must be devised for those who fail to meet them.

5.6. The proposal to apply a complementarity principle might prove difficult in practice, as most State compensation decisions are based not on objective legal criteria but on principles of fairness. This could lead to a dual assessment. It is just one point for discussion, as is the possibility of achieving complementarity by setting up a European fund in which the Member States would - via their respective contributions - converge towards the standard and to the agreed level of compensation. The use of a fund would mitigate the fact that the same people always pay the most.

5.7. As stressed at the start, the Commission's sterling work marks the culmination of a vital stage in the building of an important framework for the establishment of a common area of freedom, security and justice.

5.8. The realisation of the Commission initiative on State compensation for crime victims will form a crucial step in meeting the needs of citizens, and a visible and exemplary step by the Member States in the construction of a true European justice area, based on a culture of solidarity - in the sense of real sharing of responsibility - and on the universal basic right of all human beings not to be left alone in the face of aggression, danger or crime.

Brussels, 20 March 2002.

The President

of the Economic and Social Committee

Göke Frerichs

(1) OJ C 19, 23.1.1999, p. 1-15, Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice.