European Union law rules that Member States must provide fair and appropriate compensation for victims of sexual offences. In some countries, few victims receive any financial compensation, or often the amount received is very low. According to figures from the Spanish Government's Ministry of Finance, obtained by professor of Criminal Law at the UOC, Josep M. Tamarit, between 1998 and 2018 in Spain some 1,356 applications for public compensation were made, of which 272 were favourably settled. "During these two decades, only 20% of the compensation requested was granted. In other words, an average of 13 grants of 1,375 euros per person were paid out," revealed the expert.
Tamarit, the lead researcher on victimization in the UOC's VICRIM group, is involved in the European project FAIRCOM along with academics from other universities and NGOs from Spain, the Netherlands, Italy, Greece and Latvia. The project aims to improve the chances of victims of sexual offences to get fair and effective compensation. In the context of this research, the expert managed to ascertain that even though in Spain there is the possibility of applying for this compensation, in accordance with Law 35/1995, victims are faced with a number of obstacles to obtaining it.
"The figures show that in Spain there are few applications, and this is mainly due to the fact that not all the victims are properly informed about the option of making a claim," explained Tamarit. And in the case of the people who do apply for public compensation, it is often refused.
The criminal process in Spain
The main route to getting compensation is the criminal process. "If the aggressor has been identified, judged and sentenced, the court imposes in its ruling the obligation to pay compensation to the victim, who can apply for it if they have taken part in person in the proceedings or, in Spanish law, it can also be requested by the Public Prosecution Service," explained Tamarit. "The procedures for making a claim can be very long and complicated. The compensation awarded very often does not reach the victim because the offender has no resources or because the judicial system is incapable of executing the sentences," the expert added.
For the cases in which compensation cannot be made effective, Tamarit explained that the European states have established compensation mechanisms from public funds, based on the idea that the State must assume its duty to protect its citizens from crime. The payments are made as a symbol of recognition, public sympathy, and social solidarity with the victims. He said: "In Spain, the system of public compensation for victims of violent crimes and crimes against sexual freedom is managed by the Ministry of Finance, which takes a very restrictive approach, as shown by the figures."
12 good practices to guarantee compensation
Within the framework of the FAIRCOM project, funded by the European Union, the experts are drawing up a series of resources aimed at providing professionals and institutions with the tools to improve current legislation and practices. Among the first results, they concluded that Member States should take measures to ensure that the compensation awarded by the court is actually available to the victim, and that the public compensation systems have an effective impact on the victims who need it.
In their e-book State and Offender Compensation of Victims of Sexual Violence: Survey, Good Practices and Recommendations, the experts involved in the project recommend various good practices:
1. A public body should be responsible for obtaining the compensation awarded by the courts from the offender. In the Netherlands, this task is the responsibility of the Central Judicial Collection Agency (CJCA), which recovers up to 70% of the compensation awarded from offenders.
2. This could be complemented by an advance payment by the State, whereby if the compensation granted is advanced partially or in full to the victims in the event of the (partial) insolvency of the offender, the State can take recourse against the offender to recover this amount.
3. An effective and easy-to-follow procedure needs to be put in place. Article 16 of the Victims' Rights Directive obliges Member States to ensure that victims can obtain a decision on compensation by the offender within a reasonable time frame during the criminal proceeding. States should provide an alternative to civil proceedings, as these are currently ineffective in obtaining compensation from the offender, especially in the case of sexual offences.
4. State-funded lawyers and/or other forms of legal aid should be available to the victims of sexual offences who enter criminal proceedings, especially at the start of the process.
5. No court fee should be charged to extend access to compensation.
6. With regard to compensation by the State, it is recommended that this type of compensation is made available to all victims of sexual offences, including those that do not imply 'violence' in their usual connotation, such as online sex offences.
7. Specific attention should be paid to minors who suffer sexual abuse, taking into account the problem of domestic victimization and arbitrating procedures to ensure that the amount of compensation will meet the needs of underage victims, or that they will receive it when they reach adult age.
8. State compensation must be available, regardless of the outcome of criminal proceedings. Having to wait for the final decision of a criminal trial can lead to disproportionate waiting times, as most criminal proceedings take many years and consequently the situation places an unacceptable burden on the victims.
9. State compensation should be available in cases where the offender is not known, not prosecuted or not sentenced. A victim is no less a victim in these cases (UN Declaration of Basic Principles, 1985; European Convention on the Compensation of Victims of Violent Crimes (1983).
10. The deadline to apply for state compensation must be long and flexible enough to allow access to justice. It is revealing how the research shows that victims of sexual offences in the Netherlands apply for compensation on average about six years after the event. In the case of underage victims, calculating the deadline for applying for public compensation should begin when they reach adult age.
11. The decision-making authority should be an independent entity.
12. Countries should take into account the framework established by the European Court of Justice regarding the amounts of compensation. These amounts should not be purely symbolic or manifestly insufficient, and they should compensate, to the appropriate extent, the suffering to which the victims have been exposed. If fixed amounts are used, they should vary according to the severity of the violence suffered, and also to avoid a manifestly insufficient amount being awarded in view of the circumstances of a specific case.
To develop this good practice manual, the researchers undertook a study of the legal documents and instruments of European policy. The compensation schemes of the five participating countries were compared, using the descriptions of the compensation systems of the European e-Justice Portal. The content was validated and complemented with compensation experts from the participating countries and project partners. In addition, workshops were held in each participating country for professionals working with victims of sexual violence to discuss good practices and potential improvements.
This project is supported by the European Commission, Grant Agreement: 847360 -- FAIRCOM -- JUST-AG-2018/JUST-JACC-AG-201.
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