Report from the Commission on the basis of Article 18 of the Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings {SEC(2004)102}
Date: 2004-03-03
Institutions: European Commission
Subjects: EU Member State, civil rights, criminal procedure, national implementing measure, report, right to justice, victim

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 16.02.2004 
COM(2004)54 final/2 

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COM(2004)54 final du 03.03.2004. 
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REPORT FROM THE COMMISSION 

on the basis of Article 18 of the Council Framework Decision of 15 March 2001 on the 
standing of victims in criminal proceedings 

{SEC(2004)102} 

EN 

   EN 

 
 
 
 
 
  
1. 

INTRODUCTION 

1.1. 

Background 

Article 18 of the Council Framework Decision of 15 March 2001 on the standing of victims in 
criminal proceedings1 requires the European Commission to draw up a report on the measures 
taken by the Member States to comply with the Framework Decision. 

Article 17 of the Framework Decision of 15 March 2001 requires the Member States to take 
the measures necessary to comply with it by: 

–  22 March 2006 with regard to Article 10, 

–  22 March 2004 with regard to Articles 5 and 6, 

–  22 March 2002 with regard to the other provisions. 

Article  18  requires  the  Member  States,  within  the  same  time,  to  “forward  to  the  General 
Secretariat  of  the  Council  and  to  the  Commission  the  text  of  the  provisions  enacting  into 
national law the requirements laid down by this Framework Decision”. The Council, within a 
year  after  each  of  these  dates,  is  to  evaluate  the  measures  taken  by  the  Member  States  to 
comply  with  the  Framework  Decision,  on  the  basis  of  a  report  drawn  up  by  the  General 
Secretariat  on  the  basis  of  information  supplied  by  the  Member  States  and  a  written  report 
from the Commission. 

However,  on  22  March  2002,  no  Member  States  had  notified  the  Commission  of  measures 
taken  to  transpose  the  Framework  Decision.  Only  Sweden  replied  on  25  March  2002.  On 
31 December 2002, only nine Member States (Austria, Belgium, Finland, Germany, Ireland, 
the Netherlands, Portugal, Spain, Sweden) had done so.  

As  the  value  of  this  report  largely  depends  on  quality  and  timeliness  of  the  national 
information sent to the Commission, a document drawn up on these bases would have been 
virtually meaningless. On 7 January 2003, the Commission accordingly sent reminders to all 
the Member States who had failed to fulfil their obligation. The report was therefore deferred 
until 25 March 2003. The Commission decided on this date on the basis of the deadline set by 
the  Framework  Decision  and  the  reminder  letters  as  the  cut-off  date  for  incorporating  late 
answers from the Member States. This report, therefore, takes stock of the transposal situation 
on  25  March  2003.  Some  Member  States  supplied  further  information  after  that  date.  The 
Commission will take account of that in a supplementary report. 

At the time of this report, only ten Member States (Austria, Belgium, Finland, Germany, Italy, 
Ireland, Luxembourg, Portugal, Spain, Sweden) had sent relatively complete contributions on 
the  transposal  of  the  Framework  Decision  in  their  national  legislation.  Denmark  sent  no 
contribution.  Greece,  by  letter  dated  20  January  2003,  stated  that  a  committee  had  been 
instructed to study and draw up the necessary implementation measures and was to finalise its 
work  in  the  months  ahead.  France  did  not  detail,  Article  by  Article,  the  national  measures 
implementing  the  Framework  Decision.  The  Netherlands  and  the  United  Kingdom  did  not 

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OJ L 82, 22.3.2001, p. 1. 

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attach to their reports the legal instruments transposing the Decision. The analysis which will 
follow can therefore only be fragmentary. But it did not seem right to delay it any longer. 

One  last  point:  the  introduction  to  the  United  Kingdom  report  states  that it covers  England, 
Wales,  Scotland  and  Northern  Ireland,  but  the  United  Kingdom  sent  an  additional 
contribution  regarding  the  transposal  of  the  Framework  Decision  in  Scotland.  The  Scottish 
system is mentioned specifically where there is a difference from the general provisions for 
the rest of the United Kingdom.  

1.2.  Method and criteria for evaluating the Framework Decision 

1.2.1.  Framework Decisions based on Article 34(2)(b) of the Treaty on European Union 

This Framework Decision is based on the Treaty on European Union (Union Treaty), and in 
particular Articles 31 and 34(2)(b). 

The legal instrument most comparable with the Framework Decision is the Directive.2 Both 
instruments  are  binding  on  the  Member  States  as  regards  the  result  to  be  achieved,  while 
leaving  national  authorities  the  choice  of  form  and  methods;  Framework  Decisions  have  no 
direct  effect.  But  the  Commission  cannot  -  at  least  in  the  current  state  of  development  of 
European  Union  law  -  bring  an  action  in  the  Court  of  Justice  to  force  a  Member  State  to 
transpose  a  Decision.  However,  the  Court  of  Justice  can  hear  a  case  concerning  a 
disagreement  between  two  Member  States  over  the  interpretation  or  implementation  (which 
includes the transposal) of the Decision.3 The possible exercise of this right of action requires 
a solid factual base, and the Commission report on the basis of the information supplied to it 
can help to constitute it. 

1.2.2.  Evaluation Criteria 

To determine objectively if a Framework Decision has been fully implemented by a Member 
State,  certain  general  criteria  drawn  up  for  corresponding  purposes  in  relation  to  Directives 
must  be  applied  mutatis  mutandis  to  Framework  Decisions.  The  following  criteria  are 
specifically concerned: 

(a) 

(b) 

(c) 

the  form  and  the  means  of  transposal  must  be  chosen  in  such  a  way  that  the 
Directive has the intended effect, given its object;4 

each Member State must implement Directives in a manner fully corresponding 
to the legal safety requirement and consequently incorporate the provisions of a 
Directive in mandatory domestic provisions;5 

transposition  need  not  necessarily  require  enactment  in  precisely  the  same 
words  in  an  express  legal  provision;  the  existence  of  general  legal  principles 
(arising,  for  example,  from  appropriate  measures  already  into  force)  may 

2 
3 
4 
5 

Article 249 of the EC Treaty. 
Article 35(7) of the Union Treaty. 
See case law concerning the implementation of Directives: Case 48/75 Royer [1976] ECR 497-518. 
See case law concerning the implementation of Directives: Case 239/85 Commission v Belgium [1986] 
ECR 3645; Case 300/81 Commission v Italy [1983] ECR 449-456. 

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suffice if they actually guarantee the full implementation of the Directive and 
create a sufficiently precise and clear legal situation;6 

(d) 

Directives must be implemented within the time allowed for the purpose.7 

Both instruments are binding 'as to the results to be achieved'. It can argued that the resultant 
de jure or de facto position must do justice to the interests that these instruments are to serve 
under the Treaty.8 

The  general  evaluation  provided  for  by  Article  18  of  the  extent  to  which  Member  States 
comply  with  the  Framework  Decision  must  be  based  as  far  as  possible  on  these  criteria, 
subject to the differences pointed out above.  

1.2.3.  Context of evaluation 

One  point  must  be  made  regarding  the  nature  of  the  field  regulated  by  the  Framework 
Decision,  which  refers  to  a  definition  of  an  overall  status  for  the  victims  that  raises  and 
standardises  the  level  of  protection  they  enjoy.  Although  most  systems  appear  to  converge, 
there are always differences between the legal orders of the Member States and therefore the 
insertion  of  the  provisions  concerning  the  victims'  statute  takes  account  of  the  specific 
features of each of them. In addition, the formulation of the Framework Decision leaves the 
Member  States  with  considerable  room  for  manoeuvre  in  transposing  it.  That  is  why  the 
evaluation of the extent to which Member States have adopted the rules necessary to comply 
with the Framework Decision on these points of general criminal law duly reflects the general 
criminal-law framework in the Member States. 

1.3. 

General objective of the Framework Decision 

In accordance with the conclusions of the Tampere European Council of 15 and 16 October 
1999, the general objective of the Framework Decision of 15 March 2001 is to establish and 
guarantee  victims  throughout  the  European  Union  a  comparable  high  level  of  protection, 
irrespective  of  the  Member  State  in  which  they  are  present.  Member  States  should 
approximate their laws and regulations to the extent necessary to attain this objective,9 with 
particular regard to the right to be treated with respect for their dignity, the right to provide 
and receive information, the right to understand and be understood, the right to be protected at 
the various stages of procedure and the right to have allowance made for the disadvantage of 
living  in  a  different  Member  State  from  the  one  in  which  the  crime  was  committed.10  The 
provisions of this framework Decision are therefore not confined to attending to the victim's 
interests  under  criminal  proceedings  proper.  They  also  cover  certain  measures  to  assist 
victims before or after criminal proceedings, which might mitigate the effects of the crime.11 

6 

7 

8 

9 
10 
11 

See case law concerning the implementation of Directives: Case 29/84 Commission v Germany [1985] 
ECR, 1661-1673. 
See case law concerning more specifically the implementation of Directives: Case 52/75 Commission v 
Italy [1976] ECR 277284; and, in general, the annual Commission reports on monitoring the application 
of Community law: COM (2001) 309 final, for example. 
PJG  Kapteyn  and  P.  Verloren  Van  Themaat,  Introduction  to  the  Law  of  the  European  Communities, 
third edition, 1998, p. 328. 
Recital 4 to the Council Framework Decision of 15 March 2001. 
Recital 3 to the Council Framework Decision of 15 March 2001. 
Recital 6 to the Council Framework Decision of 15 March 2001. 

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The rules and practices as regards the standing and main rights of victims therefore need to be 
approximated, with particular regard to the right to be treated with respect for their dignity, 
the  right  to  provide  and  receive  information,  the  right  to  understand  and  be  understood,  the 
right to be protected at the various stages of procedure and the right to have allowance made 
for the disadvantage of living in a  different  Member State from the one in which the crime 
was committed.12 

But the Framework Decision does not impose an obligation on Member States to ensure that 
victims will be treated in a manner equivalent to that of a party to proceedings.13 

1.4. 

General objective of this report 

This  report  must  enable  the  Council  to  evaluate  the  extent  to  which  Member  States  have 
adopted the rules necessary to conform to the Framework Decision.  

2. 

ANALYSIS  OF  NATIONAL  MEASURES  TO  IMPLEMENT  THE  DECISION,  ARTICLE  BY 
ARTICLE 

The  following  analysis  is  based  on  the  measures  notified  by  the  Member  States  (see  table 
attached to this report): 

Article 1: Definitions 

Only  Finland,  Italy,  the  United  Kingdom  and  Sweden  made  this  first  Article  their  concern. 
Italy asserts that a list of definitions does not have to be transposed into national law. But the 
aim of a Framework Decision being to approximate the statutory and secondary provisions of 
the  Member  States,  these  need  to  have  the  same  terminological  basis,  since  otherwise  the 
effectiveness  of  the  Framework  Decision  is  likely  to  be  affected.  However,  a  review  of  the 
national  provisions  that  were  notified  did  not  reveal  terminological  differences  having  this 
effect. The United Kingdom drew up a broad definition of “victim” which includes the victim, 
his  parents,  his  guardian  if  any  and,  in  the  event  of  murder,  the  victim's  close  friends.  This 
definition does not pose problems of conformity since it satisfies the minimum requirements 
of the definition of the term “victim” in the Framework Decision. Moreover, Article 8(2) of 
the Framework Decision extends to measures to protect the privacy and photographic image 
of victims and their families or persons in a similar position. 

Article 2: Respect and recognition 

Article 2(1) of the Framework Decision follows up the eighth recital, which reads “The rules 
and practices as regards the standing and main rights of victims need to be approximated, with 
particular  regard  to  the  right  to  be  treated  with  respect  for  their  dignity”.  This  provision 
announces the general aim of the authors of the Decision of ensuring a real status for victims 
in criminal proceedings.  

Certain  Member  States  (Austria,  Belgium,  France,  Finland,  Germany,  Italy,  Luxembourg, 
Portugal, Sweden) referred explicitly to Article 2(1). But in view of the primarily declaratory 
function  of  this  paragraph,  a  Member  State  can  be  held  to  have  granted  a  genuine  status  to 
victims  as  required  by  the  Framework  Decision  only  if  it  has  properly  transposed  all  the 

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