Reverse Discrimination Against Rape Victims: A Disappointing Ruling Of The Cjeu

Steve Peers

While national criminal jurist systems are oft criticised for ignoring the purpose of criminal offense victims, the European Union has shown keen involvement inward this number from an early on phase of the evolution of European Union criminal law. One of the origin European Union 'Framework Decisions' concerned criminal offense victims' rights, together with this stair out has since been replaced past times a comprehensive Directive on this issue, which Member US must employ past times Oct 2015.

Yet this Directive is non the entirely stair out dealing amongst criminal offense victims, equally the theme of state compensation for criminal offense victims is the dependent plain of an before Directive, dating from 2004. The primary aim of the compensation Directive is to flora a framework for compensation inward cross-border cases, where a 'violent intentional crime' is committed inward a Member State other than the Member State where the somebody concerned is habitually resident. However, the Directive does furnish that 'All Member US shall ensure that their national rules furnish for the being of a scheme on compensation to victims of fierce intentional crimes committed inward their respective territories, which guarantees fair together with appropriate compensation to victims.'

In the recent lodge inward C, a adult woman inward Italy brought a claim for state compensation on the footing of this provision, next the conviction of her assaulter for sexual violence. The national courtroom had ordered the offender to pay compensation (an number addressed past times the full general Framework Decision, forthwith the Directive, on victims' rights), but in that location was no prospect of enforcing this order, since he did non stimulate got the coin to pay that compensation. So she tried to obtain compensation from the Italian state instead, pursuant to the Directive. However, according to the CJEU, the Directive did non employ to purely domestic cases similar this one, but entirely to cases where in that location was a cross-border element.

With keen respect, this is simply non convincing. While the master copy focus of the Directive is sure compensation inward cross-border cases, Article 12(1) of the Directive makes clear that this takes house on the footing of each national arrangement for compensation. Therefore Article 12(2) - quoted higher upwards - requires each Member State to laid upwards a national arrangement roofing crimes similar this one. So a failure past times Italy to furnish for state compensation for its residents who are victims of such crimes volition complicate whatsoever endeavor past times visitors from other Member US to collect compensation from the state inward such cases.

Since such cross-border disputes volition undoubtedly autumn inside the compass of the Directive, the CJEU mightiness move prepared to dominion that criminal offense victims inward such representative would withal stimulate got a straight effective correct to compensation against the Italian government, regardless of its failure to implement the Directive fully. While protection of roughly victims is of course of pedagogy welcome, all of them ought to move protected. European Union lawyers stimulate got long perish accustomed to 'reverse discrimination' equally regards menage unit of measurement reunion, where European Union citizens who deed betwixt Member US tin hand notice rely on decent standards, spell those who job non exit their Member State tin hand notice inward roughly countries (like the UK) move dependent plain to a far to a greater extent than restrictive national law. It hardly helps the legitimacy of European Union police line to convey that the same double standards employ to compensation of victims of fierce crime, specially when the improve interpretation of the legislation concerned is that they shouldn't.

[update: run into analysis of the master copy criminal offense victims' Directive, which has applied since autumn 2015, here].

Barnard & Peers, chapter 25

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