Opinion of the European Economic and Social Committee on the "Proposal for a Council Directive on compensation to crime victims" (COM(2002) 562 final — 2002/0247 (CNS))
Date: 2003-02-26
Institutions: European Economic and Social Committee
Subjects: crime, cross-border cooperation, indemnification, standard, victim

C 95/40

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Official Journal of the European Union

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Opinion of the European Economic and Social Committee on the ‘Proposal for a Council
Directive on compensation to crime victims’

(COM(2002) 562 final — 2002/0247 (CNS))

(2003/C 95/11)

On 4 November 2002, the Council decided to consult the European Economic and Social Committee,
under Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee’s work on the subject, adopted its opinion on 5 February 2003. The rapporteur was
Mr Koryfidis.

At its 397th plenary session on 26 and 27 February 2003 (meeting of 26 February), the European
Economic and Social Committee adopted the following opinion by 110 votes in favour and no votes
against with two abstentions.

1.

Introduction

1.1.

The problem

1.1.1.
The right of European citizens to move freely
throughout the EU necessitates conditions of security and
justice accessible to all.

1.1.2.
This involves citizens being able to approach courts
and authorities in any Member State as easily as in their
country of origin.

It also entails the right

1.1.3.
to protection from the
authorities and appropriate compensation for the losses suf-
fered when crimes and terrorist acts occur.

1.2.

The treatment of crime victims in the Member States

Based on the data available,

it is clear that the
1.2.1.
prospect of compensation for crime victims is generally less
favourable than that of people who have suffered loss or
damage of other kinds. There are many major obstacles faced
by crime victims in gaining compensation from the offender.
These stem from:

— the fact that, in many cases, the offender is unknown,
cannot be successfully prosecuted or lacks the funds to
compensate the victim;

— the fact that other sources, such as compulsory or private
insurance policies, are also insufficient to cover the losses
suffered by the victim;

1.3. The body of Community law on the subject and the need for

action at Community level

1.3.1.
problem of compensation for crime victims is as follows:

The history of the Community approach to the

1983: Ratification of the European Convention (1) on the
compensation of victims of crime which was intended to
introduce a minimum standard for
state compensation
schemes.

1989: The European Parliament issued a resolution (2) on
compensation for victims of violent crimes. The resolution
called on the Commission to draw up a draft directive requiring
the Member States to harmonise the amount of compensation
for the victims of violent crimes at the highest level, irrespective
of the country of origin of the victim.

1998: Adoption of the Vienna Action Plan (3) of the Council
and the Commission which, inter alia, provides for:

— identifying ways of providing victim support,

— carrying out a comparative survey of victim compen-

sation schemes and

— assessing the feasibility of taking action at EU level.

— the fact that the complete absence of any possibility of
state compensation for victims in two Member States and
the lack of alignment between compensation arrange-
ments in the other Member States mean that European
citizens are treated differently depending on their place
of residence or the place where the crime is committed.

(1) The convention, which was ratified by ten Member States and
subsequently signed by two more, does not provide for any
specific measure to facilitate access to state compensation in
cross-border situations.

(2) A 3-13/89 C 256, 12.9.1989, p. 32.
(3) OJ C 19, 23.1.1999, p. 1, point 51(c).

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1999: The conclusions of the Tampere European Council (1)
stress the need to draw up minimum standards on the
protection of the victims of crime while calling on the Member
States to set up national programmes to finance measures,
public and non-governmental, for assistance to and protection
of victims.

— the difficulty involved in tackling the issue given the
different traditions followed in the Member States — a
situation which would be compounded by enlargement
— but, at
the need to achieve the
objectives of the Green Paper as a demonstration of ‘the
practical success of the European venture, centred on the
individual and his or her practical problems’;

the same time,

1999: The Commission presents a Communication(2) on
crime victims covering not only the subject of compensation,
but also other issues that could be addressed to improve the
response to crime in the EU.

2001: The Council adopted a framework decision (3) on the
standing of the victim in criminal proceedings.

2001: Adoption of the Brussels I Regulation (4) on jurisdiction
and the recognition and enforcement of judgments.

2001: The Commission presented a Green Paper (5) on com-
pensation to crime victims. The Green Paper focused on
compensation from the state, giving an overview of the
relevant schemes in operation in the Member States. On this
basis, it formulated the possible objectives that a Community
initiative in this field could pursue by proposing the following:

— ensuring that victims are able to get state compensation

in the EU;

— taking measures to limit the unfair effects that may result
from the widely differing levels of compensation available
in the various Member States;

— the need for all concerned to build up positive momentum
and to adopt a balanced approach to the problem with a
view to approximation;

— the potential risk that the divergence of schemes will
be perpetuated by some countries turning the agreed
minimum level of compensation into the maximum, and
by other countries increasing further the already high
level of protection they provide;

— the need to ensure that the standard agreed upon is
implemented by means of a system which provides for
penalties against those who do not comply with the
consensus solution reached and by using a European
fund in the interests of complementarity;

— in view of these difficulties, the need to establish ‘the most
stringent common standard possible, setting different
starting levels and establishing subsequent steps to bring
about a gradual alignment’ (7).

— facilitating access to state compensation for victims in

cross-border situations.

2002: The European Parliament adopted a resolution (8) on
the Green Paper welcoming the Commission initiative and
highlighting inter alia the following points:

The Green Paper was the subject of debate (over the period
2001/2002) within the European institutions, at national level
and within organised civil society. The results of this debate
confirmed that the current situation regarding compensation
of crime victims in the EU is unsatisfactory and that action is
needed to achieve the objectives put forward in the Green
Paper.

2002: The European Economic and Social Committee adopted
its opinion on the Green Paper. The opinion (6) welcomed the
Commission initiative, highlighting inter alia the following
points:

( 1) Presidency Conclusions, point 32.
( 2) COM(1999) 349 final.
( 3) OJ L 82, 22.3.2001, p. 1.
( 4) Council Regulation (EC) No 44/2001 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial
matters, OJ L 12, 15.1.2001, p. 1.

( 5) COM(2001) 536 final.
( 6) OJ C 125, 27.5.2002.

— the major differences between national schemes, the
absence of legislative measures at Community level to
take account of the specific situations of cross-border
crime victims and the need to establish minimum state
compensation schemes;

— the need to approximate state compensation schemes
and to lay down minimum requirements for subsidiary
application of the State’s responsibility;

— the need to create a European coordinating body for
crime victims and possibly a European solidarity fund to
provide resources based on criteria to be determined by
the Commission;

(7) OJ C 125, 27.5.2002, point 5.2.
(8) A5-0309/2002 final.

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— the need to wage publicity campaigns informing citizens
about the Community compensation scheme for crime
victims.

2002: The Commission submitted the present draft directive
on the compensation of crime victims.

The compensation of crime victims ‘is a necessary
1.3.2.
parallel
to the many measures taken to promote judicial
cooperation in civil matters and to combat crime and terror-
ism.’ This measure is thus a response to the precepts of the
Treaty on establishing an area of freedom, security and justice
in the European Union. These precepts constitute the general
framework behind the need for Community intervention to
tackle this specific problem.

2. The draft directive

The draft is intended to be a contribution towards

2.1.
achieving the objectives of the Treaty on:

— establishing an area of freedom, security and justice for

all and

— the free movement of persons within the EU.

As shown above, the draft directive is a follow-up to
2.1.1.
the Green Paper on the subject and to the Tampere European
Council with the general objective of ensuring adequate
compensation for all EU citizens and any person with legal
residence in the EU in the event that they should fall victim to
crime within its territory.

2.1.2.
by:

According to the draft, this objective is to be achieved

— ensuring that all EU Member States make provision for
adequate state compensation by establishing a minimum
standard for state compensation to crime victims;

— ensuring that the possibilities afforded in practice for the
crime victim to get state compensation are not adversely
affected depending on the Member State in which the
crime is committed (cross-border situations — submitting
an application to an authority in the Member State of
residence).

the possibility of enforcing such decisions in cross-border
situations, a number of initiatives have been taken or are in
preparation on access to justice for cross-border litigation in
civil matters in general, which will be of benefit to crime
victims as well’ (1).

According to the draft directive,

2.1.4.
the unfair and
arbitrary effects created by the existing arrangements for
compensating crime victims are not compatible with estab-
lishing an area of freedom, security and justice for all in the
European Union. Furthermore, despite the positive contri-
bution it has made towards establishing state compensation
schemes, the 1983 European Convention has not been able to
ensure complete coverage of all EU citizens. Nineteen years
after its opening for signature, the effects of the minimum
standard it sought to establish are not commensurate with the
expectations of European citizens and all those who reside
legally in the EU. This fact also explains the need for
Community intervention.

2.1.5.
Confirming the link between the free movement of
persons and state compensation to crime victims, the European
Court of Justice held (2) that ‘the protection of victims of crime
is a necessary corollary of the free movement of persons as
guaranteed by the Treaty.’ However, this particular proposal
cannot be considered to fall within the scope of Articles 94
and 95 (3) of the Treaty. The objective pursued by this proposal
falls within the overall scope of the provisions of the Treaty
establishing the European Community taken as a whole (4).
Therefore, Treaty Article 308 (5) is proposed as the legal basis
for the present draft.

3. General comments

The EESC sees the present Commission draft directive
3.1.
as the concrete result of many years’ work on the important
question of states awarding compensation to the victims of
crimes committed on their territory. The proposal is also seen
as a particularly important formal contribution to the wider
effort to construct a uniform area of freedom, security and
justice. It also marks a substantial shift in the way European
citizens’ current and existing problems are addressed against
the backdrop of the changing territorial function of states and
the benevolent role and character which the modern EU
Member State must take on.

2.1.3.
The scope of the draft directive does not cover the
possibilities for the crime victim to get compensation from the
offender. According to the Explanatory Memorandum,
‘the
possibility of obtaining a decision, as such, on compensation
from the offender is covered by the framework decision on the
standing of the victim in criminal proceedings. Concerning

(1) COM(2002) 562 final, point 3.3.
(2) Case 186/87 Ian William Cowan v Trésor public [1989] ECR

p. 195.

(3) Articles 94 and 95 of the Treaty.
(4) See EC Opinion 2/94 of 28.3.1996.
(5) Treaty establishing the European Community, Article 308, p. 163.

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3.2. With this in mind, the EESC endorses the proposed
directive and its objectives and feels that its provisions, subject
to certain important conditions, will help to promote:

— the establishment of an area of freedom, security and

justice for all in the EU;

3.5.1.
The EESC stresses that it is doubtful whether the
scope for perpetuating major differences between Member
States’ arrangements will ultimately be of benefit in efforts to
promote the creation of an area of freedom, security and
justice for all in Europe.

— free movement within the EU;

4. Specific comments

— the approximation of Member States’ legislation on the
subject and of the mechanisms for resolving cross-border
situations in line with the principles of subsidiarity and
proportionality.

In general terms, the EESC takes the view that defining
4.1.
the desired effect precisely is an essential requirement if it is to
be achieved by way of political, administrative and legal
systems which still differ considerably from one another.

3.3.
As stated above, the Committee endorses the broad
lines of the proposed directive. However, it feels that some
articles of the draft require further clarification and clearer
wording.

In particular, the EESC feels that the proposed directive

3.4.
addresses the following important issues:

— it clearly defines the beneficiaries (Article 2). This will
prevent the problems which have arisen when Member
States have been called upon to compensate citizens of
other Member States (see the relevant Court of Justice
ruling and Article 3(2) of the draft);

— it obliges those Member States who have not yet done so
to set up an appropriate compensation mechanism;

— it introduces a mechanism to facilitate communication
for victims who reside in a Member State other than the
one liable to pay compensation.

Nevertheless, the Committee also notes that, as it
3.5.
stands, the proposed directive enables the Member States to
set up schemes which differ considerably from one another.
This prompts the Committee to urge a careful review of, inter
alia:

— Article 4, which lays down the principles for determining
the amount of compensation: according to the text,
Article 4(1) introduces the principle of full compensation,
while paragraphs 2 and 3 go on to allow substantial
derogations, with the consequence that the resulting
arrangements may differ considerably;

— the provision relating to the assisting authority and the
deciding authority: inasmuch as the specifications for
cooperation between the two authorities are not suf-
ficiently detailed, problems may arise with such cooper-
ation, which may well deter citizens of the Member States
from exercising the rights provided for in the draft
directive.

4.1.1.
include the following elements:

To this end, the EESC feels that the directive should

4.1.1.1.
a definition of crimes that comprises not only
crimes against the victim’s life, health or physical integrity, but
also those against
the victim’s psychological health and
integrity (Article 2(1)(a)).

a detailed definition of

4.1.1.2.
the responsibilities of
assisting authorities and of deciding authorities, along with a
simplification of cooperation procedures between them so as
to reduce bureaucracy and make it easier for citizens of the
Member States to exercise the rights provided for in the
directive. Particular reference must be made to the law
applicable in each case and the relevant distinction between
the law of the victim’s place of residence and the law of the
place in which the crime was committed (Article 16 ff.).

4.1.1.3.
broader scope for the victim to receive advance
payment. It should be pointed out that the period immediately
after the crime has been committed is often the most painful
for the victim and the time when he or she needs help the
most (Article 5).

provisions laying down the procedure for awarding
4.1.1.4.
advance payments such that the resulting arrangements come
as close as possible to:

— a trans-European scheme applied across the board with
uniform criteria for determining the amount of advance
payment;

— a scheme which will be run by a legal or administrative
authority to be determined by each Member State;

— a scheme which can probably be guaranteed, at least in
part, by European funding so as to cater for the consider-
able variance in the movements of citizens within the EU.

4.1.1.5. When formulating the specifications for the above
procedure,
it should be possible to draw on successful
experience with the specifications for temporary legal protec-
tion in the period preceding the conclusion of public supply
and public works contracts (Directive 89/665/EEC).

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4.1.1.6.
It is clear that, in any event, the payment of final
compensation by the state will have to be guaranteed in cases
where:

4.1.1.6.1. Where an upper limit is placed on compensation,
this will have to be adjusted regularly in line with cost of living
trends.

— despite all efforts it has not been possible to track down

the offender, or

— the offender has been identified, but has insufficient

means to adequately compensate the victim.

4.1.1.7.
The solution described in 4.1.1.3 and 4.1.1.4 above
serves to clarify the objective of state intervention in this area,
intervention which takes place at
the
procedure, immediately after the crime is committed, when
the victim particularly needs it, and at the end when it has
been proven definitively that there is no other source of
satisfactory compensation for the victim.

the beginning of

Brussels, 26 February 2003.

The President

of the European Economic and Social Committee

Roger BRIESCH