The 23rd of December 2020, the End FGM EU Network and Middelburg Human Rights Law Consultancy submitted a joint contribution for the evaluation of the Victims’ Rights Directive (VRD) to the European Commission.
The VRD will be evaluated by the European Commission with the aim to assess to what extent it has achieved its objectives in terms of its implementation and practical application in EU countries. The main objective of the VRD is to ensure that victims of crime receive appropriate information, support and protection and can participate in criminal proceedings. In December 2020, a one-month feedback period took place where the European Commission welcomed any feedback on the VRD that was adopted in 2012. You can find more information here. Of course we didn't let this opportunity pass to contribute to EU law-making and submitted our contribution a few days before the deadline. In the feedback that we submitted, we focused on Female Genital Mutilation/Cutting (FGM/C) and we addressed two issues in the current text of the Directive which leaves - to our mind - victims of FGM/C and girls-at-risk in the lurch.
Territorial scope of application
Firstly, the territorial scope of application of the VRD excludes victims of extraterritorial crime if no criminal proceedings regarding that crime take place within the EU. As many may know. Girls are often cut outside of the EU in countries of heritage, and seldomly make a formal complaint due to unwillingness subjecting parents to criminal justice and family pressure. However, a provision of the VRD states that victims must be able to access support services without having to make a formal complaint. This creates a contradiction for victims of extraterritorial crimes, because they must make a formal complaint for criminal proceedings to start, so they access support services under the VRD. And more importantly this results in an exclusion which presents a de facto discrimination of victims of FGM, since they are almost always cut outside of the EU and criminal proceedings almost never take place. That is why we recommended the Commission to remove altogether the requirement that criminal proceedings must take place within the EU regarding an extraterritorial crime, or alternatively to include victims of extraterritorial crimes, specifically harmful practices, under the scope of the VRD.
Threat of a crime
Secondly, we addressed the fact that the VRD does not explicitly recognises girls-at-risk as victims. As a result it is not wholly clear whether the VRD confers a right to protection measures on such girls, even though that is the time when they need them the most so that FGM can be prevented from happening. In an earlier analysis looking at legal bases for FGMPOs on a European level, we discovered that implicitly in some countries girls-at-risk may be covered by the VRD implicitly: In some countries preparing, planning or attempting certain crimes, is a crime in and on itself. This can also be the case for FGM, then a girl-at-risk is the victim of the crime of planning and preparing FGM, due to the emotional and mental harm done to her by the upcoming FGM. We recommended the Commission to clarify this, because even if it is theoretically true, when it is not clearly mentioned it is logical that Member States will not include girls-at-risk and prevention measures in their implementation of the VRD.
We hope that the Commission will take our arguments and recommendations to heart. You can find our submission here.In total, 56 persons/organizations have submitted their feedback. You can find their contributions here.
The next step in this process will be a public consultation, which is planned for the second quarter of 2021. The Commission adoption is planned for the fourth quarter of 2021.
We'll keep you updated!