FAIRCOM is a project involving five European partners – Spain, Catalunya, Italy, Greece, the Netherlands and Latvia – with the aim of promoting an efficient and fair model regarding the compensation of victims of sexual crime within the European Union.
FAIRCOM’s objectives include the analysis of the impact of sexual crimes on society and the efficiency of the current compensation system, to identify the best practices existing in the European context and develop new National and International Guidelines.
This macro-objective reflects the need to train and raise awareness among justice professionals, victims’ support professionals and Community. The implementation of FAIRCOM will improve these professionals’ skills to deal with victims’ compensation issues: this will reflect the increase in public awareness of victims’ rights and cooperation between all the actors involved in this field.
In detail, the FAIRCOM Project foresees two main implementation phases:
1) Context analysis and preparation of the response to the needs that emerged;
2) Training and empowerment.
Six months after the FAIRCOM start date, each partner shared with a group of experts – composed of lawyers, professionals from non-governmental organizations, judges, health experts, law enforcement officers – from his country the Recommendations for the Compensation of Victims of Sexual Violence drawn up by the Dutch partner (VU University).
The objective of the FAIRCOM Local Events held in Tivoli and Sassari, respectively on 27/02/2020 and 4/03/2020, was to collect indications and suggestions from professionals sensitive to the issue of victims of sexual violence in order to identify the needs of those who work in this sector.
Comparison with professionals
The first part of the two events was dedicated to the presentation of the FAIRCOM Project which will involve Italy with the other partner countries for 24 months in order to identify the best practices in State and Offender Compensation for people who are victims of sexual violence. During the second part we discussed with the professionals about the strengths and weaknesses, the opportunities and challenges that our country has to deal with, in order to confront and learn from Europe, adopting best practices on compensation.
The professionals were updated on the official data on sexual crimes committed within the European Union (this is about 215 thousand crimes registered until 2015, of which 1 out of 3 were rapes) and on the problem of compensation for victims.
- Easily accessible: no police report is needed, no administrative fees
- Fixed amounts:
- Sexual violence = 25.000 €
- Murder = 50.000 € (60.000 € for children)
- Single payment
- Legal assistance:
- Funded by the state for low incomes
- Special agreement for victims of sexual violence, abuse and stalking
- Provisional payment can be obtained at the request of the civil party
- The criminal court does not charge commissions for court costs
- The outcome of the criminal trial must be awaited
- The decision is “without delay”: timing within which the sentence must be issued are not defined
- Secondary to the claim for compensation from the offender
- Necessary tests: medical certificates, medical records, copy of the sentence
- In the case of an unknown / insolvent author, a court order is required indicating the commission by unknown persons
- Deadline for submitting application within 60 days after ascertainment of the commission of the crime by unknown persons / final conviction of the offender
- No form required, but necessary documentation with information on the civil party, lawyer and offender
- Mandatory lawyer
- Evidences needed: medical certificates, specified and proven damage form
- The appeal to the request for compensation does not affect the results relating to the criminal liability of the offender
- Possible conflict between first instance sentence that absolves the defendant and appeal sentence that accepts the claim for damages
- Application: the judgment is not immediately impugnable
One of the first problems that emerged from the Context Analysis document prepared by the Dutch partner is the dispersion of the complaint, the phenomenon known as attrition rate which consists in the difference between crimes committed and those actually sanctioned. In addition to the low reporting rates, starting from the first contact with the police, taking charge of the case and moving to the subsequent procedural stages, there is a sort of victim’s drop out, which in fact almost disappears at the inside the bureaucratic tunnel of compensation. The procedure that the victim is forced to deal with in order to obtain compensation is very hard, since the whole criminal trial must first be concluded to demonstrate the existence of the crime in order to make a claim for damages. The offender will compensate the damage caused and, only in the event that he is not in a position to do so, then it will be possible to request a state compensation.
The dispersion of police report and the long procedural process create many difficulties in collecting statistics relating to sexual violence, generating a real hidden world. On one hand, the shame and social stigma due to the victim’s condition have an important weight in preventing the victim from reporting, but on the other, responsibility must also be attributed to the ways in which the person is received, listened to, and through which her case is managed: taking care of these aspects could help the victim to go on up to the request for compensation.
The European Directive was accepted in Italy with Law 122/2016, which established the state compensation modalities for victims of sexual violence on a fixed basis: for all crimes, the medical costs incurred and documented up to a maximum amount of 10 thousand euros. In November 2019, a New Inter-ministerial Decree (become effective after the publication in the Official Gazette on January 24th, 2020) was issued which establishes:
- For murder, a fixed amount of 50 thousand euro;
- For murder committed by the spouse or by a person linked by relationship to the offended person, a fixed amount of 60 thousand euros exclusively in favour of the children of the victim;
- For sexual violence, in the fixed amount of 25 thousand euros (except for less seriousness).
Medical expenses of up to € 10,000 can be added to this amount, if certified.
The discussion also addressed the topic of cross examination: in some European countries there is a compensation even before the sentence is issued (advance payment), this does not guarantee the defendant’s possibility of being heard in Court. Although all the present lawyers agreed that it is not appropriate to lavish the compensation in advance as a guarantee for the defendant, for some crimes there is also the automatism of the preventive seizure (ex art. 316 of the Italian penal code) before the final sentence. In the case of murder committed against the spouse (also separated or divorced), the other party of the civil union or the person linked by emotional relationship and stable coexistence, the PM asks for the sequestration of the assets, to guarantee compensation for civil damages suffered by the children of the victims (minors or adults economically not self-sufficient). It can be ordered at the request of the civil party if there is a justified reason to believe that the guarantees of the civil obligations deriving from the crime are missing or dispersed.
Another interesting consideration was related to the pre-trial hearing with protected modality: on the one hand the victim supports association were in favour of protected procedure’s obligatoriness, on the other hand there were supporters of the freedom of choice of the victim, which could expose her to very problematic situations.
Judges must necessarily be super partes: the judge must assess the issues in a distant way, taking into account both the needs of the victim and the presumption of innocence of the accused, as at this stage there are potential victims and potential authors of crime. The assessment phase is very delicate, it is measured with different needs, such as that of feeling heard.
Even the Anti-violence Centers have lawyers and psychologists ready to work almost voluntarily (despite the fees are paid very late). Furthermore, since the judge did not order the hearing of the victim, the Center can’t transmit what the victim declared during the evalutation.
the report is not signed by a psychologist, the operator cannot transmit it to the judge. In fact, it would seem that Italy produces further difficulties to those who request compensation, denying recognition of a violated person: more violence that the victim is forced to suffer.
Victim Associations pointed out that there is a lack of Italian data about Victim Support Associations sued for damages in criminal prosecutions: even though in Italy there is the opposition of the counterpart’s lawyers, this represent an additional way to provide support, so it could be interesting to understand what happens in other European countries.
The National workshops organized in Tivoli and Sassari were a great reflection cue. They allow us to focus on Italian problems about sexual victims’ compensation.
The poor knowledge by citizens, from one hand, initiatives promoted by victim support services, from the other, assume a shape of spot project which stop at insiders, reducing the benefit for the society. The lack of a professional network, as well as other networks between institutions and people who are in direct contact with citizens contribute to maintain hidden the difficulties which victims has to face up during the compensation request.
This problem seems to produce a chain reaction: the poor information from society falls on victim, unaware of her rights, who keep feeling unaccepted and unheard, so more inclined to “throw in the sponge”, to leave the compensation iter, feeding further the low attrition rate.
Victim Compensation does not only concern the economic aspect, but it is part of a restorative process that aims to recognize the damage suffered by the victim, restoring greater dignity and recovering his/her centrality within the process.