Towards a rights-based approach: victims of violent crime, state-funded compensation and the European Union
| Published date | 01 September 2023 |
| DOI | http://doi.org/10.1177/20322844231171497 |
| Author | Liam O’Driscoll |
| Date | 01 September 2023 |
| Subject Matter | Articles |
Article
New Journal of European Criminal Law
2023, Vol. 14(3) 303–326
© The Author(s) 2023
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DOI: 10.1177/20322844231171497
journals.sagepub.com/home/nje
Towards a rights-based
approach: victims of violent
crime, state-funded
compensation and the
European Union
Liam O’Driscoll
PhD Researcher and Irish Research Council Government of Ireland Scholar, Dublin City University, Dublin, Ireland
Abstract
This article examines the legal provision of state compensation for victims of violent crime in the
European Union (EU). In examining the provisions of Directive 2004/80/EC relating to com-
pensation to crime victims, this article analyses the historical development of EU c ompetencies in
the fields of criminal justice and victims’rights. Additionally, the legislative history of Directive 2004/
80/EC is considered, as is the interpretation given to the provisions of this Directive by the Court of
Justice of the EU. It is demonstrated that the scope of protection, offered to victims of violent crime
through Directive 2004/80/EC, has been limited and uncertain as a result of this complicated
legislative history and inconsistent CJEU interpretation. Furthermore, this article examines de-
velopments in the context of EU action in the field of state-funded compensation in light of the
recent development of a genuine rights-based approach to victim support in EU law and policy, this
article highlights priorities for legal reform at the EU level in the context of state-funded
compensation.
Keywords
Victims of crime, state compensation, European union, ‘fair and appropriate compensation’,
Corresponding author:
Liam O’Driscoll, Dublin City University, Collins Ave, Dublin 9, Ireland.
Email: liam.odriscoll9@mail.dcu.ie
Introduction
On 16 July 2020, in Presidenza del Consiglio dei Ministri v BV,the Court of Justice of the Euro pean
Union (CJEU) held that the provision of ‘fair and appropriate compensation’under Article 12(2) of
Directive 2004/80/EC (Compensation Directive) relating to compensation to crime victims,
1
applies
to all victims of violent crime regardless of whether there exists a cross-border element.
2
The ruling
in BV departed from previous CJEU caselaw which held that Article 12(2) only applies in situations
where the crime takes place in a European Union (EU) Member State different to that in which the
crime victim permanently resides.
3
A core issue concerning the CJEU’s caselaw in relation to the
proper scope of Article 12(2) is the gradual expansion of EU competencies in the field of criminal
justice and the complicated legislative history of the Compensation Directive itself. This article
considers both the Compensation Directive and the related CJEU caselaw, in light of this important
constitutional and legislative history. It is demonstrated that the problems associated with Article
12(2), specifically the initial limiting of the provision to cross-border victims by the CJEU, stemmed
from the EU’s lack of competencies in relation to victims’rights. Additionally, it is determined that
the gradual expansion of these competencies limited the scope of ambition in relation to the
Compensation Directive when adopted and also resulted in the ambiguous reference in Article 12(2)
to ‘fair and appropriate compensation’.
As well as examining the historical context of the Compensation Directive, this article also
examines the consequences of such ambiguities in the context of determining the current scope of
victims’right to state-funded compensation. This examination takes place through a detailed
consideration of the relevant CJEU caselaw. Furthermore, the current scope of victims’rights to
state-funded compensation is analysed in the context of developments which took place subseq uent
to the adoption of the Compensation Directive. These developments include the adoption of the
2012.
4
Finally, this article places the historical and legal context concerning victims’rights to
compensation within current developments in EU victims’rights policy which increasingly rec-
ognises the importance of a rights-based approach to victim support and compensation.
5
It is
concluded that such a genuine rights-based approach has the potential to bring about comprehensive
reform of the victims’rights framework in the EU, so long as such reform is implemented with the
necessary political will. In advance of commencing discussion on the historical aspects of EU action
in this field, national compensation schemes will be introduced.
1. Directive 2004/80/EC of 29 April 2004 Relating to Compensation to Crime Victims OJ No L 261, 6.8.2004, p15.
2. C-129/19 Presidenza del Consiglio dei Ministri v BV ECLI:EU:C 220:566.
3. See C-467/05 Dell’Orto ECLI:EU:C:2007:395; C-122/13 Paola C v Presidenza del Consiglio dei Ministri ECLI:EU:C:
2014:59; C-601/14 Commission v Italy EU:C:2016:759.
4. 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 Victimsof Crime, and Replacing Council Framework Decision 2001/
220/JHA OJ No L 315, 14.11.2012, p57.
5. Jo¨
elle Milquet, Strengthening Victims’Rights: from Compensation to Reparation (European Commission 2019) 1 -
7<https://ec.europa.eu/info/sites/info/files/strengthening_victims_rights_-_from_compensation_to_reparation.pdf>
accessed 15 September 2022.
304 New Journal of European Criminal Law 14(3)
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