Guest article by Maria McDonald BL – Overview of new Victims' Rights Directive

Maria McDonald is an Irish Barrister practising in Criminal and Civil Law. Since 2008, she has lectured part time in Dublin City University in topics such as international human rights, public international law, international trade law and mental health law. She is completing a part time PhD in ‘Prosecuting, Convicting and Sentencing in International Criminal Law’.

Over the past year the European Union has developed and adopted laws giving support, protection and rights to victims of crime. These laws will have a major impact on how victims are treated in Ireland. Currently Ireland has no legislation giving victims rights, except for a Victims’ Charter which sets out the rights which “should” be afforded to victims by State agencies. This Charter is aspirational and has no legal effect. Victims therefore have no recourse if their rights have been breached under it.

The Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA came into force on 15 November 2012. The transposition deadline is 16 November 2015.

The Directive gives minimum rights, supports, and protection to all victims of crime. In particular it requires that certain information should be provided to victims on their first contact with the Gardaí. On request victims should also be provided with information and reasons as to why an investigation has been discontinued or why there was a decision not to prosecute.    

Victims would be entitled to access to free support services, for a period before, during and after any criminal proceedings. Importantly, access to these services must be provided even if a victim has not made a complaint about a crime to the Gardaí.

The Directive also provides that victims should be protected from repeat victimisation and intimidation. An individual assessment of all victims of crime should be completed so as to identify those victims which may have specific protection needs. Children are always assumed to require extra protection measures. In ascertaining whether a victim has specific protection needs, the nature of the crime will be considered as well as the characteristics of that victim and the circumstances surrounding the crime. An example of a person who may need extra protection is someone who has been subjected to gender based violence or violence in a close relationship.

Importantly, the Directive requires that the Gardaí and court officers should receive both specialist and general training on victims. The Directive requests that both prosecutors and Judges should also be trained. 

The European Council adopted the Regulation of the European Parliament and of the Council on mutual recognition of protection measures in civil matters on 6 June 2013. At the time of writing this article the Regulation had not come into force yet. The Regulation enables a protection order, which is made in one Member State, to be enforced in another Member State if there is a serious risk to the life, physical or mental integrity of a person or to prevent any further form of harm to that person. The Regulation will be of major benefit to victims of domestic and/or sexual abuse.

The issue which now arises is the implementation of these documents into Irish law. If they are not transposed correctly then arguably very little may change for victims of crime. It is therefore essential that there is a means whereby victims can enforce a breach of their rights in Ireland. Once the European laws are transposed a victim can enforce a breach of their rights in the courts; however, it seems unfair and unreasonable to expect a victim to go through the stress and trauma of court proceedings once again. Other options, such as a Victims of Crime Ombudsman or a Victims Liaison Service may be a more victim-friendly means of dealing with complaints or breaches of victim rights, potentially offering a swift solution. What is clear is that further lobbying needs to be done to ensure that the Directive is implemented with Irish victims in mind.

Click here to access a Know your Rights booklet on the Victims’ Rights Directive, which was authored by Maria McDonald. 

 

 

 

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