Finally, the Directive states that Member States should ensure the possibility of making a complaint to the competent authorities in a victim’s Member State of residence after (s)he has been victimized in another Member State. This, however, only strictly applies to situations where the victim was unable to make the complaint in the Member State where the criminal offence was committed or in the event of “a serious offence”. Because of the vague phrasing in the Directive concerning whether the victim was “unable” to report the crime in the Member State where the offense had been committed, it is difficult to say whether the approach in several Member States is in fact still in line with the Directive. If a victim decides to report the crime to the competent authorities within his or her country of residence, then the competent authorities are to transmit the complaints to the Member State in which the criminal offence was committed.
Legislation in Portugal on complaint in MS of residency
In Portugal, article 154-A of the Law on International Judicial Co-operation in Criminal Matters states that “1 – Criminal police bodies and judicial authorities receive denunciations and complaints on the perpetration of criminal offences against residents in Portugal having been committed on the territory of another Member State of the European Union; 2 – The Public Prosecutor shall, without delay, send the denunciations and complaints received in accordance with paragraph 1 above to the competent authority of the Member State on whose territory the offence was committed, except where Portuguese courts are competent to try the offence;
3 – The Public Prosecutor receives from the competent authorities of Member States of the European Union any denunciations and complaints regarding criminal offences committed on Portuguese territory against residents in another Member State, for the purposes of prosecution.”
This final subsection (2/3) of Article 17 of the Directive is generally agreed upon to be the most difficult to implement. To illustrate, one problematic issue in the Netherlands concerns Dutch residents who become a victim in another Member State and want to report back in the Netherlands. Because of extra-territorial jurisdiction, the Netherlands does not have jurisdiction if the victim is Dutch but the criminal offence against the victim has been committed in another Member State. A consequence of this is that a victim may return to the Netherlands wanting to report a crime that has happened abroad, to find the Dutch police refusing to record the crime. Dutch police officers frequently believe that there is no use in recording a crime when they have no jurisdiction to follow up with an investigation. An expert from Germany also admitted that at this moment, it is very unclear what would happen if a German resident reports a crime that has happened in another Member
Chapter III: Victim-oriented reform in the legislation and practice of the EU Member States
State to the police in Germany. The respondent assumed that this would depend on the situation and the severity of the crime, but also on the attitude of the police officer who is available to take the statement. However, it is important to emphasize that the Directive does not necessarily require further investigation or prosecution of Member States in this case, but does promote communication between respective authorities. This means that the police ought to record the crime and transfer the report to the Member State where the criminal offense has occurred and where the authorities are competent to investigate and prosecute the crime. There are other countries who, regardless of jurisdiction and in accordance with the intentions of the Directive, do record the statements made by returning residents about a crime, after which the matter is forwarded to the state where the criminal offence was committed.36
Recording and forwarding of complaints in Hungary and Finland
In Hungary (a country whose judicial authorities also have jurisdiction in case of offenses committed against Hungarian citizens abroad) the Criminal Proceedings Act has a regulation as follows: Section 172 paragraph (3) “If the complaint was not filed with the prosecutor or investigating authority having competence and jurisdiction in the case, it shall still be taken over and recorded in minutes, and be forwarded to the party entitled to act.”
In Finland, the Criminal Investigations Act also contains that if a victim reports an offence that has been committed in another Member State, the police must transmit the report to the Member State where the offence was committed on the condition that the victim could not have reported the offence in the other Member state or in case of a serious offence.
Even in some countries where regulations are less than clear and the state’s jurisdiction does not cover (most) crimes that have been committed in another Member State, respondents from Germany and the Netherlands presume that if a crime is considered serious enough, states (or the police) will react to ensure prosecution.
Combined efforts from the country of residency and the country where the criminal offense has been committed are expected in this case.
From several Member States, we did not receive specific information regarding this topic, or answers were framed from an offender-perspective, rather than a victim-perspective37. An expert from Portugal mentioned the other side of the possibility for victim’s to report a crime in their country of residency. They confirm that in their country, once complaints have been transferred from other Member States to the competent authorities, these authorities have the obligation to create a file based on the complaint. If someone who is resident of another Member State becomes a victim in Germany, the German police would communicate directly with that victim and not via the police station at the victim’s place of residency.
Chapter III: Victim-oriented reform in the legislation and practice of the EU Member States
Table III-3: Provisions under Article 17 in each Member State
*According to the expert Italian national legislation is already in compliance with Art. 17 of the Victims’ Directive.
Member