Original post on Criminal Justice in Ireland blog // by Dr Andrea Ryan
The Victims Directive
In this post, I will discuss the third measure of the EU Victims legislative package, the Victims Directive (Directive 2012/29/EU Art 20.). However before proceeding to that, it is important to understand the EU legislative process – in a nutshell! Since the Lisbon Treaty, the pace of development of a European criminal justice system has accelerated, largely through the reform to the way measures relating to criminal matters are passed: under the older treaties, unanimity was required by all Member States before a measure could be adopted, but since the Lisbon Treaty this is no longer required. As already mentioned in the first post, under the Lisbon Treaty, Ireland and UK have the choice in relation to any legislative proposals falling under Title V of the TFEU to opt in to any proposed measure. The abolition of the unanimity requirement and the opt in provisions have resulted in legislative proposals passing much more speedily.
In terms of legislative tools, the most important legislative instruments were known pre-Lisbon as Regulations, Decisions and Framework Decisions. The first two became law in Member States without any domestic legislative action required, but the third category, Framework Decisions, required Member States to transpose the instruments into domestic law by a given deadline, leaving to them the ‘choice of form and method’ of implementation. Since the Lisbon treaty, the Framework Decision instrument is now called a Directive; like Framework Decisions they must be transposed into national law by a given deadline. Other instruments under Lisbon include Regulations and Decisions, both of which are directly applicable.
In terms of the Regulation on protection for domestic violence victims outlined in the first post, given that it is directly applicable, no measures were needed to bring it into our domestic law. However, it is a different story with the Victims Directive, to which Ireland has chosen to opt in: as a Directive, it must be transposed into national Irish law by the deadline 16 November 2015 – six months ago. Failure to transpose directives permits the Commission to bring infringement proceedings against a Member State to the European Court of Justice, and if that Court’s order to transpose is not carried out, then that can result in fines.
And so to the Victims Directive
The Victims Directive gives broad rights of protection and support to victims of crime: at the point of first contact with authorities the victim has the right to information about: support services; the procedure for making a complaint and their role in in criminal proceedings; protection measures available; translation and interpretation services; access to legal advice and legal aid.
The Directive requires Member States to establish ‘free of charge and confidential specialist support services’ in addition to general victim support services. The specialist support services ‘shall, as a minimum, develop and provide’ shelters or alternative appropriate accommodation for victims at risk of secondary and repeat victimisation, intimidation and retaliation, and trauma support and counseling services.
The victim has the right to be accompanied by a person of their choice and a legal advisor during interviews with authorities. In addition, interviews with victims must be conducted without unjustified delay and further interviews should be carried out only where strictly necessary.
Victims must be given information about their case, including any decision not to proceed with the investigation. If a decision is taken not to proceed with a prosecution, the victim must be give the reasons for the decision, and is also entitled to a review of the decision not to prosecute.
Victims are given the right of participation in criminal proceedings. Under Irish law, victims do not have any active role in the trial, other than their role as a witness, and their right to give a victim impact statement. This is in contrast to victims in many continental jurisdictions where victims have a very active role in the trial. They may be a party in the trial benefiting from legal representation and as such, may question the witnesses and the accused, and participate in closing arguments to the court. The Directive does not give these enhanced rights to victims in Ireland because the participation rights are required only to the extent that they provided by a domestic legal system. Ireland is therefore not required to change its system to allow victims to become a party in the proceedings.
In order to protect victims from secondary victimisation, provisions are made to decrease the possibility of contact between the victim and the accused during the trial including provision of separate entrances and waiting areas in the court. The Directive also provides rights for those victims that are considered to have specific protection needs – such persons include children; victims of domestic violence; victims of exploitation; victims of sexual offences and victims with disabilities. These rights include the possibility of using video recordings of interviews as evidence in the trial where the victim is a child and the ability of victims to give evidence without being present in the courtroom through the use of communication technology. In addition, measures must be made available to avoid unnecessary questioning concerning the victim’s private life not related to the criminal offence. The victim is also given the right to receive information about the release of the offender or where the offender has escaped from custody.
As noted above, Ireland must transpose the Directive into domestic law and the legislation must be in force by 16th November 2015. To date, all we have to go on is a General Scheme for a Criminal Justice (Victims of Crime) Bill 2015, published on the 8th July 2015. The Scheme to a certain extent repeats the provisions of the Directive, but not always accurately and in some respects fails to take account of provisions required by the Directive. I will not give any analysis of the Scheme at this stage but will await the publication of the Bill. According to the (most recent) Legislation Programme published in September 2015, the Bill is listed under the category of ‘Bills expected to be published from the start of the Dáil Session to the beginning of the next Session’. Furthermore, the Scheme makes provision for regulations to be made regarding ‘any matter that is required or permitted by this Act to be prescribed’; in short, these regulations will spell out the detail for practically all the rights noted above.
Experience of past legislation that has required regulations to give effect to provisions of an Act does not give cause for much optimism that the proposed regulations will be drawn up in tandem with the passing of the Act. For example, the Criminal Justice Act 1984 provided for the drafting of regulations relating to treatment of suspects in custody and for electronic recording of interviews. The custody regulations did not see the light of day until 1987; the electronic recording regulations finally appeared in 1997. More recently, a provision to prohibit questioning of suspects before they have had the opportunity to consult with a solicitor was contained in s 9 of the Criminal Justice Act 2011; that section has not yet come into force, because regulations are needed to give effect to it. There is still no sign of those regulations.
Until such time as legislation and the accompanying regulations are actually brought into force, Ireland runs the risk of infringement proceedings being brought by the Commission, giving rise to the possibility of daily substantial fines being imposed until such time as Ireland is in compliance with the Directive. Would it not be a far more profitable use of resources to spend the money, not on fines, but on the support services for victims envisaged by the Directive?
To be continued …
Dr Andrea Ryan, Director of the Centre for Crime Justice and Victim Studies, School of Law, UL
Dr Andrea Ryan
The Victims Directive
In this post, I will discuss the third measure of the EU Victims legislative package, the Victims Directive (Directive 2012/29/EU Art 20.). However before proceeding to that, it is important to understand the EU legislative process – in a nutshell! Since the Lisbon Treaty, the pace of development of a European criminal justice system has accelerated, largely through the reform to the way measures relating to criminal matters are passed: under the older treaties, unanimity was required by all Member States before a measure could be adopted, but since the Lisbon Treaty this is no longer required. As already mentioned in the first post, under the Lisbon Treaty, Ireland and UK have the choice in relation to any legislative proposals falling under Title V of the TFEU to opt in to any proposed measure. The abolition of the unanimity requirement and the…
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