Protecting victims in the EU: The Road ahead

Speech given by Morten Kjaerum, Director of the Fundamental Rights Agency, Budapest.
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Speech of FRA Director, Morten Kjaerum (23 March 2011)

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Ladies and Gentlemen,
Put yourselves in the shoes of the victim for a moment and consider the
difficult day to day practical issues that you would face:
• you have overcome your anxieties and taken the big step of going to a
lawyer
• you have waited months for your case to get to court
• you have to appear in court to answer questions and give evidence
• you may feel intimidated by the offender or their friends and family
• the legal terminology is complicated
• you may wait in uncertainty for months or even years for a decision
• and then you get the bill for your legal fees – maybe it’s more than you
earn in six months.

Ladies and Gentlemen,
It is difficult to control who becomes a victim. But we can control and
influence the consequences for victims, by helping them to come forward and
report incidents, and by supporting them through, and including them in, the
legal process. In other words – we can empower victims to enforce their rights,
and we can support them to return to a stable life.
Enhancing the participation of victims in the legal process by, for example,
giving them the opportunity to be heard and present evidence, is also likely to
improve the quality of justice. This is because it can help to shed light on the
practical consequences of crimes or discrimination on the victims themselves,
and, in civil cases, can help to determine the nature of the remedy ordered by
the courts.
It is important to achieve this not just because crime or discrimination have farreaching
personal consequences, but also because it can damage the victim’s
ability to participate in and contribute to society fully. I am speaking not only
of victims of crime, but also victims of discrimination, because although they
are covered by different areas of law – criminal, civil or administrative – their
experiences as victims are often similar, and the need to protect them is no less
urgent.
So I would like to express my thanks to the Hungarian government for hosting
this event on what is a vital issue, which the Agency is delighted to support.
And I would like to welcome you here and look forward to your insight and
valuable contributions.

Ladies and Gentlemen,
Over the next two days, we will be looking at the involvement of, and support
for, victims in the Member States and how the situation might be improved
through new and reformed EU legislation, in particular the Victims’ Package
and the new Roadmap.
Research by the Fundamental Rights Agency shows that we face two main
challenges:
• Firstly, how can victims best be supported in the legal process - in order
to ensure effective access to justice and break the chain of victimisation?
• Secondly, how can we encourage invisible victims to become visible? In
other words, how can we encourage victims to come forward and report
incidents?
I will focus on these two key points.

1) So, firstly, how can victims be supported in the legal process?
‘Access to Justice in Europe: an overview of challenges and opportunities’ is
the title of a report by the Fundamental Rights Agency which we are presenting
today. It examines many of the problems that victims face in getting effective
access to justice in civil and administrative proceedings. These challenges
include lengthy court proceedings, high legal costs and the non-availability of
legal aid.
To give you one concrete example, 22 of the 27 EU Member States apply the
rule in civil or administrative cases that the losing side in a court case should
pay the legal costs of the winning side. So the risk of losing puts victims off
bringing cases, even if they have a strong claim.
In addition to this financial risk, there is also an emotional strain on victims
over the long period of time that cases take to resolve. Even if you win your
case, the experience can be sometimes frightening, sometimes traumatic, and
almost always intimidating.
So if this is already true for any victim, what about victims who are particularly
vulnerable?
Research by the Fundamental Rights Agency on persons with disabilities and
on the rights of the child highlights that measures need to be in place to support
people with particular needs. More specifically:
The emotional maturity and level of understanding of children may be such that
they need to be dealt with by specially trained officials. Lawyers and judges
will need to explain complicated ideas in a simple, understandable, way. Rules
of questioning will need to be specially adapted. Video evidence will be needed
in cases of abuse, rather then having the child confront the perpetrator. In this
regard the European Commission’s Agenda on the Rights of the Child also
makes specific reference to the need for ‘child-friendly’ justice systems and the
Committee of Ministers of the Council of Europe adopted Guidelines on this
question last year. In December of last year many of these issues were
discussed in depth among experts and policy makers at the Agency’s
Fundamental Rights Conference on Ensuring Justice and Protection for All
Children.
Similarly, persons with intellectual disabilities may require interpretation and
translation not only in court, but also of important documents. Court rooms will
need to be physically adapted for those with reduced mobility. These kinds of
measures should form an inherent part of ensuring equal access to ‘public
services and assistive devices for people with disabilities’ that are discussed in
the Commission’s Communication on the European Disability Strategy.
In addition to this, victims may need to be supported in other ways, such as
through psychological help or rehabilitation, to help them recover from the
harm they have suffered. The Agency’s ongoing research on access to justice
suggests that this is sometimes available through equality bodies, nongovernmental
organisations and some court systems, but this is far from
systematic across the Member States – and far from sufficient.
So this is the paradox: the process that leads to the enforcement of fundamental
rights and guarantees that rights exist in practice and not just on paper, has the
potential to prolong or worsen the hardship of the victim. The last thing that a
legal system should do is to victimise a victim. In other words, ‘secondary
victimisation’ of the victim by the State should be avoided at all costs. But this
very process is something that is in the control of the State – which means that
it lies within the power – and the responsibility – of governments to improve
the situation.
But - Ladies and Gentlemen – to improve the situation of victims it is not
enough simply to support them through the legal process. We face a prior
problem: many of them do not even enter the legal process to begin with,
because for one reason or another they do not report incidents. They are
invisible to the system.