Ways to lodge complaints

In terms of initiating proceedings, the criminal justice systems of EU Member States differ from one another with regard to the principles of opportunity (i.e. the discretionary power of the Prosecutor to sue, most often in cases of serious crimes) and legality (i.e. the fact that the Prosecutor can systematically be obliged to sue any offence for which he/she is made aware of). ¹

The principle of opportunity is applied in Belgium, France, Denmark, Ireland, United Kingdom, Luxembourg and the Netherlands. Germany, Austria, Spain, Finland, Sweden, Greece, Italy and Portugal apply the principle of legality.

It is now a common phenomenon for victims to participate in criminal proceedings in order to obtain redress for personal injuries resulting from an offence. Whether victims and organisations are able to initiate criminal proceedings without intermediation has a direct effect on their access to justice. Restrictions on the ability of victims to directly cause an investigation to be opened, combined with the principle of opportunity (prosecutorial discretion) can seriously hamper victims’ access to courts. In some States the rules for initiating prosecution on the basis of extraterritorial jurisdiction differ from those applicable to common or “territorial” crimes. ²

Spain is exemplary in this field. Criminal prosecution is guided by a “juez central de instruccion” that can be seized by the prosecutor, the victim ³ and also by any private citizen or association bringing “class action” (a suit brought before criminal court by a private citizen, in the interest of either an individual or society as a whole). Spain is the only EU Member State to introduce class action in criminal matters. Prosecutorial discretion is also non-existent in Spanish prosecutions. ⁴

According to the legal tradition of the country concerned, victims generally have an opportunity to bring legal action as a civil party, ⁵ or else the prosecutor alone can bring victims on as representatives of the executive branch. ⁶

Germany has a hybrid system. Although victims are unable to bring legal action, they may eventually join the proceedings as auxiliaries to the prosecutor. ⁷

The ability to bring legal actions as a civil party, which allows a direct appeal to a court, is somewhat controversial. Although it often seems necessary to combat the public prosecutor’s inertia, ⁸ it has also been warned that the lodging of symbolic, ideological or political complaints risks turning the judiciary away from its original purpose. ⁹

The ability to bring legal actions as a civil party is undoubtedly useful because it bypasses the prosecutor’s frequent exercise of discretion (the principle of mandatory prosecution is rare) over whether an extraterritorial crime will be prosecuted. A prosecutor’s decision may be influenced by both political and financial considerations. Crimes committed abroad require substantial resources (trial judges, translators, a budget for letters rogatory, etc.). In addition, the prosecutor usually decides the budget and the resources which will be allocated to a potential trial. With regard to the will of the executive to prosecute multinational based in the country, it is possible that the executive would abstain, given that such prosecutions would undermine the country’s economic interests.

Italy applies the mandatory prosecution principle which, according to the Constitution, implies that the public prosecutor has the obligation to exercise criminal action. This principle, although tempered by the possibility for the Prosecutor to dismiss cases provided that there is an inconsistency between facts, a procedural obstacle or the absence of legal characterization, allows associations – acting on behalf of victims- to alert the Prosecutor on alleged corporate-related human rights violations. The recent eternit trial is a good example.

Germany, Greece and the Netherlands also expressly allow for prosecutions to be dropped for political reasons. ¹⁰ These elements are significant. Given victims’ fear of being exposed through court proceedings, recognising a right for civil associations to represent victims’ interests, or “class actions” such as that applicable in France for certain crimes, ¹¹ would undoubtedly be a useful measure for countries to adopt. ¹²

In 2003, Belgium limited the scope of civil actions available to plaintiffs for violations of international humanitarian law. ¹³ Civil action is now possible only when the company and/or its leader are of Belgian nationality or reside on Belgian soil (active personality). ¹⁴ In other situations, only the Federal Prosecutor may initiate investigations.

Similarly, France adopted a legislation which incorporates crimes under the Statute of the International Criminal Court into French national law. Such legislation grants a monopoly to the prosecutor therefore denying victims the ability to bring civil action and to trigger the opening of a criminal investigation. ¹⁵

The national standards which stipulate that only the prosecutor may decide to prosecute (according to the principle of prosecutorial discretion) also tend to grant recourse to victims whose appeals are denied. ¹⁶ Through these provisions, States comply with international guidelines which hold that the rights of victims, particularly those who are victims of serious human rights breaches, must receive special attention. ¹⁷

↥The respective prosecutors of these States obligated to prosecute when an offence is brought to their attention (through the lodging of a complaint), unless the courts do not have jurisdiction over the events or if the allegations are clearly unfounded. See the european Commission Green Paper on the Approximation, mutual recognition and enforcement of criminal sanctions in the European Union, COM/2004/0334 final, 30 April 2004, p. 29, pt. 3.1.1.1.
↥Redress & FIDH, Legal Redress for Victims of International Crimes”, op. cit., 2004, p. 7.
↥It should also be noted that Spanish law criminal complaints by victims lead to ipso facto civil claims unless the plaintiff expressly requests otherwise (Article 112 of the Spanish Law on Criminal Procedure).
↥Redress & FIDH, “Legal Redress for Victims of International Crimes”, op. cit., 2004, p. 57.
↥In Belgium, France, Italy and Luxembourg. A. Poels, “Universal Jurisdiction in absentia ”, N.Q.H.R., 2005, p.79.
↥In Austria, Denmark, Finland (Section 12 (2) of the Finnish Criminal Code), Greece, Ireland, the Netherlands, the United Kingdom and Sweden. In Sweden and Denmark, the decision to prosecute an extraterritorial crime is made by an administrative (political) authority. See Section 5 of Chapter 2 of the Swedish Criminal Code, and Section 8 (4-6) of the Danish Criminal Code. In Ireland too, the Law on the Geneva Conventions states that the Minister of Foreign Affairs has the sole authority to determine whether the Act applies to a particular case.
↥On this prosecution, see Redress & FIDH, “Legal Remedies for Victims of International Crimes”, op. cit., p. 45; M.e.I. Brienen and e.H. Hoegen, Victims of Crime in 22 European Criminal Justice Systems: The Implementation of Recommendation (85) 11 of the Council of Europe on the Position of the Victim in the Framework of Criminal Law and Procedure, Universeit van Tilburg (Nijmegen, Pays-Bas, 2000: Wolf Legal Productions (WLP)), Chapter 9; J. Doak, “Victims’ Rights in Criminal Trials: Prospect for participation”, Cardiff University Law School, 2005, p. 308-310.
↥Most investigations are initiated following a concerted effort by victims. See Redress & FIDH, “Legal remedies for victims of ’international crimes’, op. cit.
↥L. Reydams, op. cit., p.108; D. Vandermeersch, “La compétence universelle” in Juridictions nationales et crimes internationaux / eds. A. Cassese and M. Delmas-Marty, PUF, Paris, 2002, p. 589 ff.; J. Wouters en L. De Smet, “De strafrechtelijke verantwoordelijkheid van rechtspersonen voor ernstige schendingen van het internationaal humanitair recht in het licht van de Belgische Genocidewet”, in Bedrijven en mensenrechten – verantwoordelijkheid en aansprakelijkheid, Antwerpen, Maklu, 2003, p. 309-338.
↥Section 153,German Code of Criminal Procedure; Art. 67,242 of the Dutch Code of Criminal Procedure.
↥See art. 2-4 of the French Criminal Code. FIDH used this possibility in the ely Ould Dah case and in a number of other cases brought in France on the basis of universal jurisdiction. See CA Montpellier, FIDH et al. c. Ould Dah, 25 May 2001.
↥See the Brussels Principles against Impunity and for International Justice, Principle 16 § 3.
↥Suits have been filed against George W. Bush with respect to the second military intervention in Iraq.
↥It should be noted that barring serious violations of international humanitarian law, plaintiffs remain civil parties in Belgium. Thus, a violation of human rights committed abroad is grounds to bring civil suit on the basis of both active and passive personality.
↥See the legislation passed on 13 July 2010 incorporating crimes of the International Criminal Court statute as well as civil society’s concerns: “La CFCPI consternée par le vote de l’Assemblée nationale”, 13 July 2010: http://www.fidh.org/Justice-internationale-La-CFCPI/
↥See L. Reydams, op. cit. In the Netherlands, for example, victims may appeal the Public Prosecutor’s decision not to prosecute (Art. 12 and 13a of the Dutch Code of Criminal Procedure). Similarly, see Sections 277, 278 and 287-2b of the Portuguese Code of Criminal Procedure and Articles 408-410 of the Italian Code of Criminal Procedure and Articles 43(1), 47 and 48 of the Greek Code of Criminal Procedure.
↥See Rule 7 of Recommendation No. R (85) 11 of the Committee of Ministers to Member States the victim’s position under criminal law and criminal procedure adopted 28 June 1985, Article 12 of Resolution No. 2005/35 of the UN Commission on Human Rights e/CN.4/ReS/2005/35, the UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985, UN GA, Res. 40/34. See also Rule 89 § 1 and 92.2 of the International Criminal Court’ Rules of Procedure and evidence (ICC-ASP/1/3).