WEEK 1 & 2
Groenhuijsen, M.S., & Letschert, R.M. (2012). Reflections on the
development and legal status of victims' rights instruments. In M.S.
Groenhuijsen & R.M. Letschert (Eds.), Compilation of international
victims' rights instruments (pp. 1-18). Nijmegen: Wolf Legal Publishers.
All criminal justice systems nowadays share the ambition of reform on behalf
of victims of crime. The roots of these efforts can be traced back to 1985, when
two powerful documents were issued: the United Nations Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power, and the Council of
Europe Recommendation on the Position of the Victim in the Framework of
Criminal Law and Procedure. The contents of these documents are largely
overlapping and have been echoed and expanded on in other international
documents of a similar nature. The most recent is the Council of Europe
Recommendation on Assistance to Crime Victims (2006).
In this booklet, two different sets of instruments are included: (1) hard law:
legally binding treaties, conventions, covenants, and protocols; and (2) soft law:
non-binding international declarations, standards, principles, guidelines,
resolutions, and recommendations, adopted by international and regional
intergovernmental organizations. Soft law can be more rigorous than one could
assume at first sight, and hard law is not always the most adequate instrument to
affect policy and practice. This observation justifies the fact that both kinds of
documents have been included in this collection of international victims’ rights.
The UN Declaration is not legally binding, but there are many indications that
it has actually positively influenced the interpretation of existing texts. It is
common practice in the UN to see legally binding instruments follow non-legally
binding texts.
With the adoption of the Treaty on the Functioning of the European Union
(Lisbon Treaty), framework decisions will have to be updated and transformed
into directives. This transformation is likely to enhance the legal status of the EU
standards for victims’ rights. The Treaty of Lisbon sets out, in relation to the
rights of victims of crime, that minimum standards can be established to the
extent necessary to facilitate mutual recognition of judgments and judicial
decisions and police and judicial cooperation in criminal matters. Another
important proposal is the Directive on establishing Minimum Standards on the
Rights, Support, and Protection of Victims of Crime, repealing the Framework
Decision on the Standing of Victims of Crime, which sets out a horizontal
framework for addressing the needs of all victims of crime, irrespective of the
type of crime or the circumstances or place in which it was committed. Another
important document adopted by the EU is the EU Directive relating to
Compensation to Crime Victims.
The International Criminal Court is the first tribunal which is empowered to
prosecute individuals, not States, accused of genocide, war crimes, or crimes
against humanity. The main improvements compared to the Yugoslavia and
Rwanda courts are in extending the protection of victims, expanding their
participation, and in better provisions on reparation. The main attraction is that it
offers a more universal model of how the legal system can respect legitimate
victims’ rights without prejudice to a fair trial for the accused. It has also
,introduced unique requirements in selecting staff; attention has to be paid to
their expertise in the field.
Regarding the topic of compensation: when an offender is unwilling or unable
to take care of the damages incurred by the victim, the State should step in and
provide financial compensation to the victim. In most countries, however, this
national compensation scheme is completely absent.
R.M. Letschert & M. Groenhuijsen, ‘Global governance and global crime.
Do victims fall in between?’, in R. Letschert & J. van Dijk (eds.), The New
Faces of Victimhood: Globalization, Transnational Crimes and Victim
Rights, Dordrecht: Springer 2011, pp. 15-40.
Over the last decades, several states have made significant process in raising
awareness of victims’ rights. Also at the global level, important achievements
were made. The globalization of various forms of crime poses serious challenges
to the conventional systems of criminal justice. Both law enforcement
organizations, prosecutorial agencies and the courts are trying to find ways to
deal with emerging forms of transnational and international crimes. To bring to
justice those committing crimes in other jurisdictions than their country of
residence, requires cumbersome and time-consuming procedures of international
legal assistance. On the other hand, the emergence of such concepts as
humanitarian intervention in the global arena, enables states or international
organizations to deal with the scourge of crimes such as genocide, war crimes
and crimes against humanity, regardless of territorial borders. Existing victim
protection schemes have remained largely domestic in scope and coverage and
need to be adjusted to these new settings.
Cross-border victimization can cause the victim to become victimized in
another country than his country of residence, or the victim is victim of a crime
committed in another jurisdiction than his own but the effects of the victimization
take place in his country of residence. Furthermore, there are the difficulties of
collective victimization through international crimes such as genocide, war
crimes, etc.
Borderless threats require borderless law enforcement across organizational
entities nationally and internationally, and across categories of citizens and non-
citizens. An EU Victims’ Rights Agency should be set up to coordinate and
monitor the various requirements laid down in the different instruments. This
agency could also take the lead in assuring compensation for cross-border
victims on an equal footing across the Union. Moreover, an overall improvement
of knowledge and awareness amongst governmental and non-governmental
institutions regarding cross-border victimization is needed. The EU could for
instance arrange educational networks and lectures.
On a more global level, any institutional reform seems an unrealistic goal for
the immediate future. However, much could be gained if existing bodies, such as
the UN, would strengthen their efforts to enhance cooperation between the
various national and international organizations and other actors in the victims’
rights field.
Criminal justice has become more people-oriented. This can also contribute to
understanding the unique situation of human exposure to threats, risks, trauma,
and fear.
, M.S. Groenhuijsen & A. Pemberton, ‘The EU Framework Decision for
victims of crime: Does hard law make a difference?’, European Journal of
Crime, Criminal Law and Criminal Justice (17) 2009, pp. 43-59.
In 2001 the European Union Framework Decision on the standing of victims in
criminal proceedings was adopted. It is the first time that there is a so-called
“hard-law instrument” concerning victims of crime available at the international
level. Prior to 2001 only soft-law instruments were on offer. The Framework
Decision not only approached matters forcefully, but also speedily; the provisions
had to be implemented within one year. This instrument is legally binding for all
member states of the European Union.
However, there is no theoretically grounded notion of what a Framework-
worthy level of implementation implies. This is compounded by the fact that the
provisions of the Framework Decision are sometimes formulated in such an open
fashion, that it is not easy to decide whether a member state complies with them
or not. However, the analysis also shows that in the six years since the adoption
of the Framework Decision, many countries have succeeded in the
implementation of improvements in the rights of victims. These reforms are very
similar to the improvements discernible in other parts of the world, which are
largely the consequence of the non-binding supranational resolutions. The impact
of the Framework Decision is not qualitatively different than the earlier
instruments but has proved to be an additional impulse.
Conclusion: First of all: the past twenty years have seen a gradual but steady
development of victim emancipation within the criminal justice system. Although
this sometimes meets with criticism, the end of this structural reorientation does
not appear to be in sight. Second: due to the experiences with the EU- Framework
Decision, we conclude that the adoption of a hard-law instrument only leads to
slightly different results than the soft-law instruments. Both types of standards
provide a level of aspiration – a benchmark – on which most if not all members of
the international community agree. The binding character, which often implies at
least an external mechanism for monitoring compliance, has definitely had some
added value, but this addition should not be overestimated or made absolute.
W.J.M. van Genugten, M.S. Groenhuijsen, R.A.J. van Gestel & R.M.
Letschert, ‘Loopholes, risks and ambivalences in international
lawmaking: The case of a Framework Convention on Victims’ Rights’,
Dutch Yearbook of International Law, 2006 (37), pp. 109-154.
ABSTRACT: The core document so far in the field of the protection of victims’
rights is the “Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power”, adopted in 1985 by the UN General Assembly. Starting from the
notion that this is a declaration ‘only’, it was suggested by some to develop a
victims’ rights convention, aiming to improve the legal status of the rights
concerned. Following that suggestion, the initiative was taken by independent
experts to draft the “UN Convention on Justice and Support for Victims of Crime
and Abuse of Power”. This article firstly discusses the legal status of the 1985
Declaration, including the question what parts might have reached the status of
international customary law. This analysis is followed by the question of what can
be learned from today’s academic discussions on characterizing international
legal standards – hard alongside soft law, etc. – and from recent debates on
