On July 12, 2023, the European Commission a proposal amending the 2012 Victims' Rights Directive.
This directive formulates a number of important rights for crime victims, including the right to information about the criminal proceedings, and the right to seek compensation from the accused in the criminal proceedings. These rights have been implemented in all EU member states since 2016. However, the recent review of the directive found that certain rights are unclearly formulated and that member states have considerable leeway in their implementation. This detracts from the effectiveness of the rights. Therefore, the European Commission has proposed to further tighten the Directive.
European Commission proposal
Three of those proposals I discuss here, namely:
- Victims should be able to challenge court decisions that affect their rights.
- The victim should be able to obtain a decision on compensation within the criminal process, without having to initiate separate (civil) proceedings.
- The State must pay the compensation imposed by the criminal court to the victim immediately after the verdict (upfront payment). The State can then try to recover this amount from the offender.
What does this mean for the Dutch situation?
In the Netherlands, the rights from the 2012 Victims Directive are well implemented. In fact, the Netherlands is one of the few EU countries that already has a upfront payment for the violent and moral crimes. Nevertheless, Dutch law will have to be amended if the European Commission's proposals are adopted by the European Parliament and the Council. On which points do the Dutch regulations not yet comply?
No independent remedy for the victim
The victim cannot now file an independent appeal or cassation appeal if the request for compensation has been declared (partially) inadmissible by the criminal court. The victim can only challenge this decision if the Public Prosecution Service (OM) or the defendant appeals and he can follow suit. The bill Modernizing the Code of Criminal Procedure did initially provide for an independent remedy for the victim/injured party, but this was later removed. Thus, if the European proposals are adopted, the Code of Criminal Procedure will have to be revised on that point. The dependence of the aggrieved party on the actions of the prosecution and the accused will be resolved to a large extent with an independent remedy.
Compensation in criminal proceedings
The claim for damages can now be declared (partially) inadmissible if the assessment would place a disproportionate burden on the criminal proceedings. Research shows that in practice in 60% of the cases based on this criterion in the criminal proceedings, a full or partial inadmissibility follows. The assumption is that in those cases the victim can bring his claim in the civil court. In practice, this almost never happens. The financial and emotional costs of separate proceedings are usually too high, and the claim awarded in civilibus is not collectible from the offender. The advance payment rule cannot be applied in civilibus. The new EU proposals result in this escape can no longer be utilized by the criminal court. The criminal court must assess the substance of the claim. Inadmissibility and referral to civil proceedings due to complexity is then no longer allowed. The Code of Criminal Procedure also needs adjustment on this point.
Advance arrangement
The advance payment scheme also does not comply with the tightened EU proposals. Although, as mentioned above, the Netherlands is one of the few countries in the European Union that currently already has the regulation that the State pays compensation to the victim as awarded by the criminal court if the offender cannot provide for it, this does not yet comply with the tightened draft directive on two points. First, the Dutch advance payment scheme only applies uncapped to violent and moral crimes. Victims of other crimes are paid (only) up to a maximum of €5,000 from the state treasury, and depend for the remaining damages on the amount recoverable from the offender. The Victims' Rights Directive, however, covers victims of all crimes, so also on victims of property crimes such as Internet scams. According to the draft directive, victims of property crimes must also receive from the State a upfront payment receive the entire amount awarded by the criminal court. The same applies to victims of violent crimes that are not currently explicitly mentioned in the advance payment scheme (Article 4:14, second paragraph, Decree on Enforcement of Criminal Decisions). These are, for example, the crimes from the International Crimes Act (Wim) and the War Crimes Act (WOS).
In addition, the amount should be immediately after the ruling, ("without undue delay") are paid by the State to the victim. Under the current advance scheme, the State pays the amount (only) 8 months after the decision has become final. In practice, this means that in the event of an appeal or cassation appeal, a victim has to wait years for compensation. It seems to follow from the text of the draft directive in combination with its explanatory memorandum that the Union legislator considers such a lapse of time too long.
In conclusion
It must be said: these are changes that deeply affect the structure of Dutch criminal (procedural) law where the victim is not considered a party to the proceedings. Moreover, the proposals have substantial budgetary consequences. In our country, the Donner Commission recommended capping the advance payment scheme partly for this reason, which proposal, incidentally, was not followed by Minister Weerwind. Recently, Hartlief also criticized the current retainer scheme ("Blank government checks for criminal judges" NJB blog June 27, 2023). However, this national debate is being overtaken by the EU proposals, showing once again that for some time now the field of victim law has not been determined solely by the Dutch legislature. It is the European Union that is increasingly the defining architect of the post-crime compensation system.
If you have questions about this blog, please contact the author, Arlette Schijns