The Directive’s article on the individual needs assessment has been met with both doubts and criticism. An expert from Hungary wondered how feasible it is to make an instrument that takes all relevant factors into account; and also how efficient and practical it is. One of the experts from the Netherlands also stated that although some items may be easily offered on a checklist, and other rights (e.g. specific interviewing conditions) are very clear-cut because it is easy to spot with what type of vulnerable victim you are dealing (e.g. minors), several terms such as “gender-related crimes” or “hate crime” will be harder to integrate because these crimes are defined by the motivation of the offender and it is difficult to figure out the exact motivation behind a crime.
An expert from Austria mentioned that it is unnecessary to have an individual needs assessment for all victims of crime. This would only cause an extra load of work for practitioners and, in some cases, may even increase the pressure of interrogation if the assessment is carried out in the wrong way.
One of the experts from the Netherlands, on the other hand, wondered precisely what the unforeseen consequences in practice may be of implementing an actual written individual assessment. The respondent worries that this very personal document about the victim is to become part of the criminal files, which would mean that the offender and his lawyer have access to this document as well. “Who should have access to the individual assessment?” Another respondent is distrustful of the individual assessment and worries that a risk of the assessment is that it is likely to lead to expectations on the side of the victim that may not be met by eventual proceedings.
In Scotland, where as described above the individual needs assessment is already (partly) in effect, some experts also have mixed feelings about the assessment. Although they believe that victims will benefit from the provisions in legislation on individual needs assessments, they have identified some limitations in the provisions, primarily regarding the procedure and timing of the assessments. They do not believe that these provisions follow the Directive’s statement that individual needs assessments should be ‘timely’. It may be questioned whether or not an assessment by the Crown Office & Procurator Fiscal Service (COPFS) is conducted early enough to be seen as timely and to be able to provide specific protection measures throughout the process. Threats, intimidation, secondary and repeat victimization can arise at any stage in the criminal justice proceedings, before the case has reached court. The Directive highlights that specific protective measures should be offered to vulnerable victims both during the investigative and the court stage, but if the assessment is not conducted until the case reaches the prosecution, vulnerable victims will not be identified and offered specific protection measures until the court stage, seemingly too late to fulfill the requirement of ‘timely’ in the sense of the Directive. The experts from Scotland are additionally concerned that, contrary to the Directive, assessments will be based on information provided from the police without any substantial engagement with the victim. Furthermore, there is no opportunity to update the assessment throughout the criminal proceedings.
Chapter III: Victim-oriented reform in the legislation and practice of the EU Member States
Conclusions
Although few countries have (fully) implemented article 22 into their national legislation, it is clear that the absence of a law relating to the individual needs assessment does not imply that certain vulnerable groups are not identified and granted specific (protection) rights. However, the aim of the individual assessment, that is that it should be made available for all victims, has been achieved in almost none of the Member States. On top of that, several experts reasonably mentioned that changes in legislation do not automatically imply changes in practice.
Although this is the true for all other articles of the Victims’ Directive, we suspect that the matter is all the more pressing for articles 22 and 23 because even with the individual assessment as guideline, much depends on the insight and good will of those interacting with the victim. Indeed, it is generally agreed that changing legislation is not enough and there is a lot of work to be done in the training of police officers, prosecutors and judges, as well as educating society: “Attitudes towards victims of crime have to be changed in the first place”. Additionally, no previous legislation ever required this type of assessment and there are very few implementations of the assessment across the European Union that are known to function well and may serve as examples for the other Member States. The police and prosecutors in many of the Member States have a huge amount of cases and no time to scrutinize or evaluate every victim but instead (need to) use that time to investigate and prosecute the offender. Conducting the assessment will require more time and effort from police and prosecutors. Changing legislation to incorporate the individual needs assessment does not mean that suddenly more resources are available for conducting the assessment as well. Finally, for many respondents it is unclear what specific form the assessment should take, what authority should be responsible for conducting the assessment, and what should happen with the information that is attained by the assessment.
Despite doubts and the emphasis on implementation hazards, several experts mentioned procedural benefits of the Directive’s needs assessment as well:
Apart from the groups that are easily identified as vulnerable, lack of systematic assessment tools
• may prohibit the recognition of certain victims as in need of additional protection and support.
After implementation of an individual needs’ assessment, in some cases evaluation will happen more systematically and there will be one central decision at the beginning that can be followed up in later stages of the criminal proceedings.
More attention may be given to the groups that are particularly vulnerable due to carrying multiple
• vulnerabilities, such as child victims of human trafficking, whose rights are protected under different laws and regulations, as the individual needs assessment may offer opportunities by giving a clear overview of all the vulnerabilities related to the victim, and the laws or available protection rights that may be relevant.
Implementation of the individual needs assessment will likely mean that victims will be better informed
• about their options of protection. Currently, this is not done satisfactorily. An example mentioned is that victims do not always realize that when they report a crime to the police, this statement will be filed and the suspect will have access to this statement. In this case, victims should actually be able to decide whether they want their personal data to be shared or not. Conducting the individual needs assessment in a timely manner may create the realization in victims that they have certain rights and decisions to make from the beginning of the process.
Chapter III: Victim-oriented reform in the legislation and practice of the EU Member States
45 Often, the question on training received limited information or no information at all (e.g. Denmark, England and Wales, Greece, Ireland, Malta).