These considerations have considerable bearing on the issue of victim assistance in the European Union. We have already noted that the effects of subjects of the Directive, victim’s rights, victim support and protection have to be gauged in practice, as a considerable chasm separates law on the books from the impact of law in practice. Studies at the national level reveal the extent to which rights and provisions aimed at improving the position of victims suffer from an enforcement and implementation deficit (Beloof, 2005). Adzovic (2013) stresses the degree to which it is difficult to adequately ‘arm’ victim’s rights so that they can be enforced through criminal justice means. Even conceptually victimologists are grappling with the manner through which victim’s rights can meet the standard set by the Fundamental Rights Charter of the EU in article 47: Everyone whose rights and freedoms
Chapter II: Viewing victim-oriented reform against the backdrop of the societal ecology
guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. This right to a remedy is lacking for many victims’ rights (Beloof, 2005;
Adzovic, 2013). This diminishes the extent to which they can be seen as rights, rather than aspirations, (see also Pemberton & Vanfraechem, 2015), while it hampers self-enforcing mechanisms within the criminal justice process. The fact that effective remedies are available contributes to the degree to which various actors within the criminal process adhere to provisions. The fact that upon non-compliance the actor in question might be taken to task also has a preventive working on transgression of rights.
In addition victims’ rights, rather than a roll back of government, require governments to take legal, policy and organisational action (Groenhuijsen & Pemberton, 2009). This is due to the fact that victim assistance in many jurisdictions is an emergent government responsibility. Legislation, enforcement and organisation are rudimentary at best. Even in the areas where considerable advances have been made, government action remains crucial. In other words, victims’ rights are an attempt to increase positive, rather than negative liberty (Berlin, 1969, see in different terms Groenhuijsen, 1996). This means first that – for the reasons mentioned earlier - harmonization is more difficult to achieve than when harmonization entails Member States removing rules, rather than creating services. In addition, judicial oversight at the national and supranational level, for instance through Supreme and Constitutional courts, and the European Court of Human Rights or the European Court of Justice, has to tread considerably more carefully in the case of positive liberties than of negative liberties (Hirschl, 2004, 2008).
The issue is that a decision on a case concerning a positive liberty might force the government in question to a considerable allocation or diversion of resources. But this quickly then becomes a matter that the court in question will refer to the political bodies. Most often there is a species of what Hirschl (2004) calls a ‘political doctrine’:
allocation decisions of this type are the remit of the legislative and executive branches (Hirschl, 2004).
Beyond this, in comparison to other directives in the area of criminal justice victim’s rights have considerably larger and wider implications (Groenhuijsen & Pemberton, 2009). The scope of victims’ rights potentially implicates the whole criminal justice process. They are clearly not the type of well-described, technical matters which in European-wide integration might be a more straightforward affair. Indeed the scope of victim assistance goes well beyond criminal justice. Most victims of crime do not contact the criminal justice system, while good deals of victims’ needs are more likely to be met by, for instance, (mental) health services or insurance providers (Pemberton & Vanfraechem, 2015). Victim support and assistance providers have to consider their position in these networks, while the extent to which victims need specific victim assistance providers to offer certain services is contingent on the extent to which they are not sufficiently provided elsewhere.
Inspiration can also be drawn from lines of thinking in post-conflict justice. Fletcher and Weinstein (and their colleagues) for instance have argued for the development of a social ecological approach to the criminal and reparative justice reaction to mass victimization (see Fletcher & Weinstein, 2002). Where the legal reaction has maintained the necessity of its independence from other social policy geared toward overlapping or similar goals (see also Drumbl, 2007; Pemberton et al, 2011) Fletcher and Weinstein consider it instead vital to (international) criminal justice stated aims that it positions itself within this wider effort of social repair. In these cases the justice reaction has to grapple with the difficulty of performing both backward and forward looking functions (Teitel, 2002): it has to deliver justice for the atrocities past while, at the same time, rebuilding justice systems, including their underlying values of trust, legitimacy and connection to key societal morals. In particular the latter cannot be done –to the extent it is possible in any case - without a full understanding of and interaction with the political,
Chapter II: Viewing victim-oriented reform against the backdrop of the societal ecology
cultural and economic context of the societies in question. Fletcher and Weinstein’s approach to social repair in post-conflict societies emphasizes the importance of the connection between efforts within and outside of the criminal justice system to contribute to a sense of reparative justice. Thinking through the way the response of victim assistance can be aligned with other institutions with similar or overlapping aims is a first requirement in this line of thinking. In addition their approach shows the importance of grasping the manner in which members of the victimized groups view institutions of justice, as both an antecedent and as a consequence of reparative efforts. In Chapter I we have shown the relevance this has to the understanding of procedural justice. What the example of post-conflict justice societies makes clear is that a minimum level of trust and legitimacy cannot always be assumed.
Across Europe the situation is less dire than is the case in societies having to come to terms with the recent legacy of war, civil strife and protracted political conflict. Nevertheless European Union Member States also present with marked variation in the relationship between citizens and the criminal justice actors involved in victim assistance. In line with this a variety of phenomena related to victim assistance can have superficially the same features, which can nevertheless –due to context- refer to rather different things. This has been cogently argued concerning restorative justice for instance (Vanfraechem et al, 2015). Pratt (2006) and Karstedt (2011) both argue the extent to which restorative justice can be in line with a more punitive approach to crime in many Anglo-Saxon countries, while it is associated with more welfarist approach in Nordic countries, the best example of which might be Finland.
A final issue concerns evidence that victim policy can be politicized and moralized to the extent it becomes a so-called morality policy. According to Knill (2013) these types of policies generally refer to issues in which political conflicts are shaped by debates over first principle; i.e., value conflicts are more important than instrumental considerations of policy design.
As Mooney (1999) shows this makes these policies simpler than most nonmorality policies, salient to the general public, as clear and simple statements about a polity’s values, which gives them a higher-than-normal level of citizen participation, but also implies that effectiveness of policy is a less important concern than political posturing. Particularly in the United States certain issues are always seen as morality policies, for instance euthanasia, abortion and same-sex marriage. However in principle more issues can be considered to be so. As Wagenaar and Altink (2012) note any issue which has first-principle (right-versus-wrong) conflict generation as their defining feature, can fall in this category.
A good deal of attention has been given to the differences in the development and tone of victim policy in the United States and the UK (e.g. Strang, 2001; Goodey, 2005; Pemberton, 2009). The patterns Joel Best describes in his Random Violence: the way we speak about new crimes and new victims (1999) concerning the ‘victim industry’
in the United States reveal the extent to which victim policy and crime policy more generally can be viewed as morality policies (see also Elias, 1986). This is also visible from the manner in which David Garland (2001) connects ‘the return of the victim’ to his view of the changed nature of criminal justice as being a culture of control.
The moral load of victim policy is deployed to mask the perceived failure of criminal justice to deliver on what was initially viewed to be its core tasks. Generally European criminal justice systems have been less likely to follow suit (Tonry, 2004), although certain areas of victim policy, for instance that targeting gender-based violence (see the debate between family violence and feminist researchers (e.g. Felson, 2002; Dobash & Dobash, 2004)) or terrorism (e.g. Mueller, 2007) might display many of the traits that are associated with morality policies. Where in the US victim policy is often viewed – with concern - as being at odds with the course of action promoted by victimological and criminological experts, in the UK the latter have had a more substantial say in the development of victim policy. This is similarly true of the Dutch scene, of which one of the authors of this report has noted that the large role of academics is evidenced by the host of victimologists (Jan van Dijk, Marc Groenhuijsen and Frans
Chapter II: Viewing victim-oriented reform against the backdrop of the societal ecology
Willem Winkel) or trauma-experts (Wim Wolters and Rolf Kleber) who have either occupied board positions or played an integral part in policy development at Victim Support in the Netherlands (Pemberton, 2008). The more general issue here is that variations in the extent to which victim policy has the features of a morality policy in a given country will influence its development (see for a different policy area, Majic, 2015). Moreover different European countries have diverging ways in which they deal with morality policies in general (Adam, Hurka & Knill, 2015).