Introduction

Various legal frameworks have been introduced in Europe to ensure that victims have access to compensation through European Union instruments, as well through Council of Europe conventions. Victims of sexual violence in EU Member States can seek justice through financial compensation in several ways: offender payments through an adhesion process (route 1), state payment schemes (route 2), and civil litigation (route 3). To investigate whether, in practice, EU Member States provide ‘fair and appropriate’ compensation in compliance with two EU Directives: 2012 Directive (offender payment/adhesion, route 1) and 2004 Directive (state payment scheme, route 2), this paper compares compensation policies in five Member States (the Netherlands, Latvia, Spain, Italy and Greece), complemented by a study of empirical literature. In the introduction, we first address the legal routes to compensation. Second, we discuss the terminology used and why we chose to focus specifically on victims of sexual violence. Third, we discuss the European legislation and policies in place for victims to access compensation and problems of implementing the policy in practice.

Legal Routes to Compensation

In most European countries, there are three legal routes for victims of violent offences to claim compensation: (1) offender compensation through a criminal court; (2) state compensation); (3) offender compensation through a civil court.

  • (Re 1): In most countries, seeking offender compensation through criminal proceedings is the most commonly chosen route. Such compensation is awarded in the final judgment (upon sentencing), after the offender has been convicted. The victim has to join the criminal proceedings, as a civil party, by means of an ‘adhesion procedure’.Footnote 1 To participate as an applicant to the adhesion procedure is one of the possibilities for victim participation (Braun, 2019). Although an adhesion procedure can entail a considerably lighter burden than a civil procedure, it does not resolve problems such as the fact that only a minority of perpetrators are identified, caught and prosecuted, and that perpetrators often lack the financial means to compensate their victims. If victims are awarded compensation, offenders have to pay, but it is up to the victim to make them actually do so.

  • (Re 2): State compensation schemes emerged in the 1970s, based on the view that the state should take responsibility not only for rehabilitating offenders, but also for compensating the victims of crime. The state is seen as having a duty to protect citizens from crime or prevent conditions that cause victimisation. Payments are made in recognition of a sense of public sympathy and of social solidarity with a victim (Holder & Daly, 2018). State compensation is often seen as a last resort, and one that becomes available only after other compensation routes have been exhausted, but it can also be a first resort before going to court, or one that can be accessed parallel to the criminal or civil law system (Milquet, 2019). It is the state, not the offender, that pays the victim, although state compensation funds can seek redress from offenders.

  • (Re 3): In theory, the violent crime will constitute a tortious act in civil law and the offender will be liable to fully compensate the victim for all damage suffered as a consequence of this act. In some cases, it is possible to obtain compensation from insurance (Milquet, 2019). In practice, however, most victims will face major obstacles in seeking to obtain civil redress, including a long and cumbersome process, when they will need legal representation by a lawyer and it will be up to them to prove the charges, with both the burden of proof and the financial burdens in civil cases being high. In practice, therefore, the civil law route is hardly used (Milquet, 2019).

This paper focuses on the two routes most frequently used for awarding compensation: offender compensation in criminal proceedings (route 1) and state compensation (route 2).

Compensation Terminology

The various legal systems examined use different terminology for the money claimed by victims in the various possible procedures. In some jurisdictions, for example, state compensation is referred to as ‘financial assistance’ or ‘expenses’ rather than ‘compensation’ because it is only expenses that are awarded. In the case of offender compensation, some jurisdictions commonly refer to ‘money payments’ because a court-awarded payment ordering an offender to pay after an adhesion procedure would be considered to constitute ‘reparation’ rather than ‘compensation’, whereas a court-awarded payment in civil justice is referred to as ‘compensation’. In this paper, we use the term ‘compensation’ for both offender and state compensation, given that these terms are used in both a landmark EU report on compensation and also in the EU Strategy on Victims’ Rights (2020–2025) (Milquet, 2019). Although the right to compensation is formally enshrined in all the legal systems examined and is one of victims’ basic needs and rights, this paper will show that this right is only a procedural entitlement: in other words, a ‘right to pursue’, not a ‘right to receive’.

Victims’ Needs: Why Money Matters

Victims of crime have many needs, including the need for safety, to be believed, vindication, acknowledgement and compensation (Ten Boom & Kuijpers, 2012; Bolívar et al., 2022). While compensation is not usually their primary need, it is certainly important because it is one of the few ways in which the legal system can meet economic and non-economic needs. Compensation serves various goals: victims may need it, for example, to pay for treatment that they require as a consequence of the crime or to compensate for other losses. Compensation can also have an immaterial value, with the money being considered a powerful acknowledgement of harm done (Holder & Daly, 2018; Milquet, 2019). The right to compensation also creates a certain empowerment by giving the victim a formal position in criminal and other proceedings, or strengthening that position, and serves as a vehicle for victim agency. In short, compensation provides ‘money justice’ (Daly & Davis, 2021) and has an impact on victims’ educational, employment and health outcomes (Holder & Daly, 2018).

Focus on Compensation for Victims of Sexual Violence

While most of the routes on compensation described above are applicable to all victims of crime, this paper focuses specifically on victims of crimes involving sexual violence. We focus on one type of crime in order to be able to validly compare compensation data. Sexual violence was chosen because victims of sexual crimes seem to experience great(er) difficulties in the justice system: in addition to low-reporting rates, they experience high-attrition rates (Daly & Bouhours, 2010), with only three in ten victims of sexual crime proceeding past the police investigation to the next procedural stage, and only one in ten cases resulting in conviction (Daly & Bouhours, 2010).

European Legislation and Policy on Compensation

Various legal frameworks have been introduced to ensure that victims in European countries have access to compensation through instruments of the Council of Europe or the European Union, with the latter carrying greater legal force. The first European compensation legislation came from the Council of Europe, the European Convention on the Compensation of Victims of Violent Crimes, in 1983.Footnote 2 In 2011, the Council of Europe adopted the Convention on Preventing and Combating Violence against Women and Domestic Violence (‘Istanbul Convention’),Footnote 3 which includes an obligation to ensure that victims have the right to claim compensation from perpetrators and that ‘adequate’ state compensation is awarded (Article 30).

In the European Union, Directive 2004/80/EC relating to the compensation of crime victims (‘Compensation Directive’),Footnote 4 included a requirement for Member States to have a compensation scheme in place that ensures ‘fair and appropriate’ compensation for victims of violent intentional crimes (Article 12) (i.e. state compensation, route 2). In 2012, the EU adopted Directive 2012/29/EU, establishing minimum standards on the rights, support and protection of victims of crime (‘Victims’ Rights Directive’),Footnote 5 obliging Member States to ensure that victims are entitled to obtain a decision within a ‘reasonable time’ on compensation by the offender in criminal proceedings (Article 16) (i.e. by means of an adhesion procedure; route 1).

Problems in Implementing EU Legislation in Practice

Although almost all EU Member States have transposed the Directives into their national legislation, the question of their practical application and efficiency remains open in several countries (Jiménez-Becerril Barrio & Mlinar, 2018).Footnote 6 The problems victims face include lack of information, numerous procedural obstacles, costly procedures, restrictive time limits and insufficient allocations from national budgets, while rejection rates are high and the amounts granted are low (Milquet, 2019). In 2020, the European Commission concluded that the 2004 EU Directive had not been satisfactorily implemented.Footnote 7 In the same year, the European Commission announced its new EU Strategy on Victims’ Rights (2020–2025).Footnote 8 This strategy is based on five priorities, the third of which is ‘facilitating victims’ access to compensation’. As key actions in this strategy for facilitating victims’ access to compensation the Commission refers to monitoring and assessing the EU legislation on compensation, including state compensation and offender compensation, and, if necessary, proposing measures to complement this framework by 2022. In 2022, the evaluation of the directive again noticed implementation problems (SWD, 2022).Footnote 9 Hence, in July 2023, the Commission proposed to amend the 2012 Victims’ Rights Directive (‘July 2023 Proposal’), which includes an obligation for Member States to advance compensation awarded to victims as part of criminal proceedings.Footnote 10 In other words, to pay such compensation directly to the victim and then seek to recover it from the offender.Footnote 11 This amendment is still in process in February 2024.

With regard to state compensation, no proposals have yet been put forward to improve the 2004 Compensation Directive or proposing minimum standards for such compensation.

Current Study: Fair and Appropriate Compensation

The question of the practical application and efficiency of the Directives (route 1 and 2) is on the focus of this paper. Do EU Member States indeed provide ‘fair and appropriate’ compensation to victims of sexual violence? We investigate this question by comparing policy data and empirical data (insofar as available) on compensation in five EU Member States, whereby two northern European countries (the Netherlands and Latvia), with a better outcome, and three southern European countries (Spain, Italy and Greece), where the effectiveness of compensation is perceived as low. The paper is a comprehensible abstract of a report (Elbers et al., 2020a, 2020b) and aims to examine differences between countries and, on this basis, to derive a set of good practices. Next, we describe the methods that we used to answer the extent to which compensation is ‘fair and appropriate’ in five EU Member States.

Method

The method consisted of desk research of (1) policy data (law in the books), and (2) existing empirical data (law in practice). The five countries under examination—Greece, Italy, Spain, Latvia, the Netherlands—were selected for their location (i.e. southern and northern European countries) and because of existing partnerships between academics and non-governmental organisations.

Data

Policy data were distilled from the European justice portal website, an EU-hosted data source for victims.Footnote 12 The information on this EU portal is provided by professionals in each country, with each Member State answering the same set of questions on offender and state compensation. An overview of these questions can be found in the appendix. The policy data for this study was originally retrieved from the EU justice portal in 2019 and reassessed for the preparation of this paper in July 2023. The extent to which the website was updated varies from one country to another, ranging from January 2020 for the Netherlands to April 2023 for Greece. For validation purposes, compensation experts in each of the five countries were asked to check the information obtained from the EU portal.

Empirical data was provided by the research partners. The empirical data that was sought was number of applicants, awarded compensation amounts, paid compensation amounts, and rejection rates. The Spanish partners provided an empirical report on about 108 sexual violence cases (Soleto, 2019), describing compensation amounts awarded and paid for sexual violence cases dealt with in criminal courts between 2012 and 2015, and an overview of state compensation cases between 2000 and 2018 (Soleto, 2019), while the Dutch partners provided statistics on state compensation from the Dutch state compensation fund’s 2018 annual report. Additionally, two master students collected offender compensation data from Dutch criminal court cases, and state compensation data from the Dutch state compensation fund. The data on criminal court offender compensation consisted of all (n = 213) publicly published casesFootnote 13 of sexual violence in 2018 (analysis not yet published). The state compensation data consisted of a set of applications for state compensation of sexual violence (sample size n = 240) that were randomly selected from all such applications lodged at the Dutch state compensation fund between 2016 and 2018 (Spoelstra, 2020). In 2018, there were 1210 applications of sexual violence cases (Schadefonds geweldsmisdrijven, 2018). The Greek partners contacted the Greek state compensation fund for data on state compensation in 2019 and conducted a court case analysis on published court cases involving sexual violence between 2011 and 2019. Latvia and Italy did not have any empirical data available.

Analysis

The main analysis consisted of describing the policy and empirical data on (1) offender compensation and (2) state compensation in the five countries under investigation.

The policy data on the EU justice portal was structured into three main themes: (1) who can apply, (2) what is needed, and (3) what is compensated. The subthemes included the fees, forms and evidence required and the availability of legal aid; the type of damages compensated; whether compensation was paid in full or as a fixed amount, and the frequency of payments.

The empirical data that we derived from the available documents comprised the available descriptive statistics on the numbers of applicants, rejection rates, amounts awarded (means), and amounts being paid. In the Netherlands, we specifically collected empirical data for the current study; descriptive statistics on amounts being awarded and claims being rejected were calculated using Excel.

Clustering of data of five countries in three categories (who can apply, what is needed, and what is compensated and how) allowed us to compare the similarities and differences in accessibility of procedures and the extent to which the right to receive compensation is effective.

Schematic Overview of Compensation Routes in Each Country

To better understand the results, we have set out a schematic overview in Fig. 1 of how the five investigated countries provide for offender and state compensation. In Spain and Italy, victims first have to go through a criminal trial. If the perpetrator was not caught, not convicted or does not have the financial means to pay compensation, victims can apply for state compensation after the criminal trial is finalised. In Greece, victims can claim state compensation if offender is insolvent, unknown, or acquitted. If there is a convicted offender, victims have to go through a civil trial to claim compensation. If the civil judge decides that the perpetrator has to pay compensation, but the perpetrator does not have the financial means to pay compensation, victims can apply for state compensation after the civil trial is finalised. In the Netherlands and Latvia, a victim can claim state and offender compensation simultaneously. If compensation is awarded both by the judge in the criminal trial (to be paid by the offender) and by the state, the judge or the state will recalculate and subtract the amount already paid.

Fig. 1
figure 1

Schematic overview of state and offender compensation in the five countries

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Results

The results are presented as follows: (1) offender compensation, and (2) state compensation, each divided in three subsections: who can apply, what is needed to apply and what is compensated and how.

Route 1. Offender Compensation

Who Can Apply

In all five countries under investigation, victims of sexual violence can apply for offender compensation, regardless of the type of sexual violence (i.e. harassment, assault and rape, and both online and offline sexual violence).

What is Needed to Apply

In the Netherlands, Latvia and Italy, victims need the public prosecutor to start a criminal trial to be able to claim compensation from the offender through an adhesion procedure. In Spain, by contrast, the option of private prosecution exists; hence victims can initiate a criminal case themselves. In Greece, meanwhile, victims can only claim compensation from the offender in a civil court procedure, which they then have to initiate themselves.

Forms

In the Netherlands and Spain, victims can use a specific compensation/damages form to substantiate their claim; this helps them to specify the various types of damage they have suffered. Italy, Greece and Latvia, however, do not have any such form. In all five countries, victims have to substantiate any economic losses claimed by providing documents such as receipts, and substantiate loss of income by providing evidence of such income. Non-economic losses are established on a case-by-case basis.

Fees

Criminal courts in the Netherlands, Spain, Italy and Latvia are free of charge, whereas victims in Greece have to pay a civil court fee proportional to the amount of compensation claimed.

Legal Aid

In Spain, the Netherlands, Italy and Latvia, victims can choose whether to appoint a lawyer in a criminal trial, whereas victims in Greece pursuing a civil procedure have to appoint a lawyer. In all five countries, victims of sexual crimes have access to state-funded legal aid, regardless of their income. The Netherlands and Latvia specify the amount of legal aid: in the Netherlands, the state funds up to 11 h of legal aid for victims of severe violent and sexual crimes, while adult victims in Latvia can receive up to 20 legal and/or psychological consultations.

How Much is Compensated

Compensation Awarded

In the Netherlands, the analysis of 213 criminal court cases of sexual violence in 2018 showed that the average compensation amount was €6451 (SD = €10,492). In Spain, the average amount awarded in criminal court cases of sexual violence between 2012 and 2015 was €13,728 (Soleto, 2019, p. 16). In Greece, seven published civil law cases were found in which sexual violence victims claimed compensation between 2011 and 2016. The amount awarded ranged from €3000 in the case of sexual harassment in the workplace to €250,000 for sexual offences involving a child under the age of ten and the child’s carer.

Compensation Paid

Compensation awarded does not imply compensation paid/received. With the exception of the Netherlands, there is no specific enforcement regarding the awarded compensation from the offender in the countries examined.Footnote 14 In Spain, the average amount actually paid to victims was €1911 (Soleto, 2019, p. 16), i.e. 14% of the average €13,728 awarded. This low percentage is caused both by offenders’ lack of assets and the system’s failure to enforce sufficiently (Soleto, 2019). The Netherlands forms an exception, having a special enforcement procedure for compensation awarded by criminal courts, provided by the Central Judicial Collection Agency (CJIB; Centraal Justitieel Incasso Bureau). The CJIB settles all court-ordered fines, state fines and penalties (including traffic fines) by collecting the money due from the offender and paying the awarded compensation to the victim. Consequently, victims in the Netherlands in principle receive the full amount of the compensation awarded.

Offender compensation differences per country are tabulated in Table 1.

Table 1 Overview of information on offender compensation
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Route 2. State Compensation

Who Can Apply

State compensation systems are in place for victims of criminal offences in all five investigated countries. However, the extent to which ‘violence’ is a constituent part of sexual offences varies from country to country. In the Netherlands, any kind of coercion is enough to constitute violence in the case of sexual crimes. In Spain, all victims of sexual offences can apply for compensation. In Italy, the European Commission’s infringement proceedings in Case C-601/14 have resulted in the country’s compensation fund providing compensation in all cases of sexual crime. In Greece, sexual crimes against adults qualify if they were committed with intent, while victims in Latvia are entitled to state compensation if they have been subjected to rape or indecent or sexual assault, or are a victim of human trafficking. In all five countries, victims are able to claim state compensation only in the country where the crime was committed.

Numbers of Applications

In the Netherlands, the number of applications for state compensation in 2018 for sexual crimes was 1210 (Schadefonds Geweldsmisdrijven, 2018). In Spain, the total number of state compensation requests for sexual crimes in 2018 was 85 (Soleto, 2019), while Greece had only 10 applications in 2019 (personal communication). Latvia and Italy did not have any information available on application numbers.

Award/Rejection Rate

In the Netherlands, 77% of victims applying for state compensation for a sexual crime were awarded compensation, while 23% of applications were rejected (Spoelstra, 2020). In Spain, 11 of the 85 victims (13%) received compensation, while the other applicants (87%) were rejected. The main reasons for the rejection was that no therapy costs were actually incurred (Soleto, 2019). Unpublished data from Greece in 2019 revealed that none of the ten victims who applied for state compensation was awarded it (0%); in other words, 100% of the applications were rejected.

What is Needed to Apply

In the Netherlands, Spain, Italy and Latvia, applications for state compensation can be made in writing. The Netherlands also allows applications to be made online. Victims in these countries do not need to present themselves in person. In Greece, by contrast, an application form must be lodged with the Hellenic Compensation Authority in person, either by the victim or by the victim’s assignee. The state compensation funds in the Netherlands, Spain, Italy and Latvia do not charge for applying for state compensation, whereas Greece charges an administration fee of €50.

Timeframe

The timeframe within which victims of any type of violence (including sexual) must submit their application ranges from 60 days after the criminal trial (Italy) to ten years after the offence (the Netherlands). Spain and Greece apply a time limit of one year after the court sentence. Since 2019, Latvia has applied a three-year limit after the sentence, while Spain increased its timeframe to five years in 2022.

Legal Aid

The Netherlands, Italy, Greece and Latvia do not require nor have any state-funded legal aid available to assist in applications for state compensation. However, there are victim support organisations that can assist. In Spain, victims can request free legal aid if they have low income or are a victim of gender-based violence.Footnote 15 In Latvia, the Legal Aid Administration states that it can provide assistance in the process.

Evidence

Besides proof of identity, which must be provided in all countries, three sources of evidence can be distinguished: (1) a police report, (2) a court ruling, and (3) medical information.

  • (Re 1) A police report is required in Spain, Latvia and Greece, while in the Netherlands and Italy such a report is recommended but not obligatory. Other objective evidence that the offence occurred is also required. In the Netherlands, this could mean a police ‘declaration’,Footnote 16 a Child Protection Service report or a report from a registered healthcare professional (although the latter is sufficient only for minors, not for adults).

  • (Re 2) A court ruling is required in Spain, Italy and Greece. In cases where the offender is unknown, not prosecuted or not convicted, victims need an official statement or court judgement to confirm this. In the Netherlands and Latvia, victims can apply for state compensation without having to await the outcome of the criminal case. Eligibility is established independently of the criminal prosecution.

  • (Re 3) In Spain, Greece and Italy, victims wanting to claim therapeutic costs must provide evidence of damage to their mental health through a report from a judicial medical examiner. In the Netherlands, victims of sexual crimes do not have to provide any specific medical information.

What is Compensated and How

In all five countries, the compensation funds indicate that the compensation they provide is intended to cover both economic and non-economic losses The Netherlands, Latvia, Italy and Spain specify fixed-amount categories. The six categories applying in the Netherlands range from €1000 to €35,000, each comprising an all-in amount covering both economic and non-economic losses. Spain pays only for therapeutic treatment, with a maximum of five months of an official medium salary (IPREM) = €2689.Footnote 17 Italy states that it compensates a fixed and maximum amount of €25,000 plus €10,000 of medical expenses.Footnote 18 In Latvia, victims of indecent or sexual assault receive a fixed sum of €1075, while victims of rape or sexual violence receive a fixed sum of €1935. In Greece, actual damages are calculated in accordance with the Greek Laws 4689/2020 and 3811/2009, i.e. medical costs, psychological support, loss of earnings (over a reasonable period of time) and the costs of any change of environment and address required.

Reduction or Rejection

In all five countries, a claim will or may be rejected or reduced if the victim has contributed to a related crime (for example, a victim of sexual trafficking who participates in crimes against other victims). In Italy, account is also taken of whether the victim has been convicted of or is subject to criminal proceedings regarding a violent crime. In Greece, a claim is rejected only if the victim failed to cooperate with the authorities (by, for example, refusing to testify, hiding material evidence or failing to present material evidence).

Victims’ Finances

In the Netherlands, Italy, Greece and Latvia, victims’ financial situation is not relevant for the amount awarded. In Spain, by contrast, account has been taken of victims’ income in cases of sexual crimes since the introduction of a new law in 2022, with the result that victims with low income can receive additional amounts.

Frequency of Payments

Payments are generally made as a single payment. This applies except in the case of Spain, where a victim can apply several times up to the maximum of €2689 (see above section), although, in practice, amounts due are often settled as a one-off payment.

Decision Time

The maximum period for a decision on compensation in the five countries ranges from one month in Latvia to six months in the Netherlands, Greece and Spain. In Italy, no timeframe has been specified other than the requirement for the decision to be reached ‘without delay’.

Compensation Awarded

The amounts of state compensation vary widely. In the Netherlands, the average amount of state compensation paid to victims of sexual crimes in 2016, 2017 and 2018 was €5283 (Spoelstra, 2020). In Spain, by contrast, the average amount of state compensation awarded was €688 (Soleto, 2019, p. 22), while no data was available in Italy, Greece or Latvia.

State compensation differences per country are tabulated in Table 2.

Table 2 Overview of information on state compensation
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Discussion

This paper examines whether compensation for victims of sexual violence is ‘fair and appropriate’ by evaluating legislation, policies and empirical data collected in five EU countries. The analysis of the policies found significant variation in victims’ access to offender and state compensation, with the main differences relating to three main themes: the accessibility of procedures, the effectiveness of the right to receive compensation, and access to legal support.

Accessibility of Compensation Procedures

The themes related to the accessibility of procedures are the existence of an adhesion procedure, the need to go to court to access state compensation, and the fees and time limits applying.

The absence of an adhesion procedure constitutes a barrier to accessing offender compensation (route 1) as, in such situations, victims have to resort to much more cumbersome civil proceedings. In practice, few victims seek recourse to such proceedings (Schrama & Geurts, 2012). According to Article 16(1) of the Victims’ Rights Directive 2012, Member States must have an adhesion procedure in place ‘except where national law provides for such a decision to be made in other legal proceedings’. Further consideration should be given to the interpretation of the exception for ‘other legal proceedings’. Indeed, the July 2023 Proposal to amend the Victims’ Rights Directive suggests deleting this exception altogether.Footnote 19

Another limitation on accessing justice, is when victims first have to go through the criminal law system (route 1) before being able to apply for state compensation (route 2), rather being able to access them simultaneously. Yet unpublished data from the Netherlands comparing characteristics of victims of sexual violence applying for state compensation with those of victims applying for offender compensation showed that state compensation applicants were more likely than offender compensation applicants to be minors (67% versus 53%) and that the offender in such cases was more likely to be a family member (33% versus 9%). State compensation would seem, therefore, to serve a different group of victims, who might not want to go through the criminal justice system due to the public nature of criminal court proceedings or who do not want to take a family member to court. These victims would be served by an independent process for state compensation.

Having to pay a fee to access offender compensation or state compensation, as in Greece (route 1 and 2), is likely to constitute another barrier to accessing procedures. Finally, victims may be seriously restricted by the imposition of a limit on the time during which they may apply for compensation: only having 60 days after a court ruling to apply for state compensation (route 2), as in Italy, seems too short, especially in the case of crimes involving sexual violence: the average time period between a sexual crime being committed and an application for state compensation in the Netherlands was found to be 6 years (Mulder, 2013).

Some of the difficulties in accessing schemes are shown by the variety in the numbers of applicants for state compensation (route 2), ranging from only 10 applicants in Greece (10.6 million inhabitants) and 85 applicants in Spain (47.2 million inhabitants) to 1210 applicants in the Netherlands (17.8 million inhabitants). A factor playing a role in poor access to such schemes is the lack of awareness, both on the part of victims and professionals, of these schemes, particularly in the case of state compensation. Under the 2012 Victims’ Rights Directive (Articles 4 and 9), victims have a right to be informed of compensation schemes’ existence. Under the 2004 Compensation Directive (Article 4), therefore, Member States must ensure that potential applicants can obtain adequate information on the opportunities to apply for compensation.

Effectiveness of the Right to Receive Compensation

Themes relating to the opportunities to receive compensation as a factor influencing access to justice are the low amounts of state compensation awarded (route 2), and the low chances of actually receiving awarded offender compensation (route 1) within a reasonable timeframe.

The most important problem with respect to fair and appropriate compensation is the low chances of receiving compensation, with rejection rates of 100% and 85% being reported in the results section for state compensation (route 2). Additionally, most countries do not have any special provisions in place for enforcing compensation orders by a criminal court (route 1). Given the many burdens and limitations entailed in private enforcement, and the fact that private enforcement would still leave victims empty handed in the event of the offender being insolvent, a large proportion of victims will receive less compensation than they were awarded, and maybe nothing at all. In Spain, for example, only 14% of compensation awarded was actually paid by offenders (Soleto, 2019). It is questionable whether an adhesion procedure without any special provisions for enforcing the court ruling would qualify as an ‘effective remedy’ within the meaning of Article 13 of the European Convention on Human Rights (ECHR).

Regarding the fairness of the level of state compensation awarded (route 2), the European Court of Justice (ECJ) issued an important judgment in 2020 on a rape case in which an Italian citizen was the victim of two uncaught offenders from another EU Member State, stating that the relevant fixed rate of €4800 for state compensation of a victim of sexual violence did not appear, at first sight, to be enough, and that the amounts should be tailored to the specific situations.Footnote 20 Looking at the maximum amounts being applied in some countries (€2689 in Spain and €1935 in Latvia), the highest maximum amounts of state compensation payable already fail to meet that criterion on paper, let alone the average amount paid in practice (€688 in Spain). Even where the average amount of state compensation paid is above the €4800 found by the ECJ to be inadequate (€5000 in Netherlands), such an amount could nevertheless be argued to be insufficient if account is taken of the (higher) socioeconomic position and social support systems in certain (mostly northern European) countries. The state compensation that is payable in Italy (fixed amount of €25,000) stands out, however, no empirical data on actual payments is available.

A good practice is in place in the Netherlands, where a system promotes payment by the sentenced offender, and guarantees offender compensation for victims of serious violent and sexual crimes (route 1). In the case of sexual crimes, about 70% is recovered from the offender (Kuipers & Van Rij, 2018). A rough calculation showed the annual costs for the Dutch taxpayer to be about €0.17 per inhabitant (Elbers et al., 2020a, 2020b). The July 2023 Proposal to amend the Victims’ Rights Directive suggests that Member States should be obliged to ensure that their competent authorities pay the adjudicated compensation directly to the victim without undue delay, while subrogating themselves to the victim’s rights against the offender to have recourse to the offender for the amount paid.Footnote 21

Finally, appropriate decision timeframes are important in ensuring fair and appropriate compensation payments. The timeliness of decisions is a major factor in procedural justice and a factor related to victims’ well-being (Elbers et al., 2015). Victims’ satisfaction with state compensation (route 2) was found to be more highly correlated to the timeliness of the decision than to the actual amount they received (Kunst et al., 2017; Mulder, 2013). In the current comparison of the five countries, Latvia was the fastest in this respect because it requires a decision on state compensation to be taken within 25 days. In the Netherlands, 93% of state compensation applications are decided upon within six months (Schadefonds Geweldsmisdrijven, 2018). Some of the countries, however, do not specify a timeframe. Standardisation of amounts is likely to increase the efficiency of the decision process and promote fairer compensation.

Legal Support

Access to legal support is another factor in ensuring access to justice. Lawyers are claimed to prevent secondary victimisation of victims of sexual crimes, especially when they become involved at an early stage of the process, such as during the interrogation (Elbers et al., 2018). Even though one Dutch study found lawyer involvement not to increase the chances of offender compensation being awarded (route 1) (Kool et al., 2016), legal aid is important in relation to access to compensation because lawyer involvement would seem to increase the amount of the compensation awarded (Soleto & Grané, 2018). In four of the five countries studied, victims of sexual crimes were eligible for state-funded legal aid, regardless of their income, during a criminal trial.

Spain has a good practice in place with regard to legal representation: victims can be a party to the criminal trial (in a private prosecution) if they engage a lawyer. As a party to the proceedings they have full powers to claim compensation, to argue for penalties to be imposed on the defendant and also to appeal the judgment. Victims who are a party to the proceedings received significantly more compensation than those who did not participate in this way (Arantegui & Tamarit-Sumalla, 2024). Furthermore, public prosecutors in Spain are obliged to request compensation for the victim from the defendant regardless of the victim’s role in proceedings, unless the victim waives this right (La Strada International, 2018).

When seeking to access state compensation (route 2), victims in the five countries are not eligible for free legal aid, but they can usually get assistance from victim support organisations. Another way to provide support to help victims access compensation is to use standardised forms. Using such a form for claiming financial compensation in a criminal court would seem to increase the likelihood of offender compensation being awarded (route 1) (Kool et al., 2016). However, four of the five countries studied—with the Netherlands being the exception—did not have a standard form for applying for compensation.

Conclusion

Considering the major differences between the studied countries with respect to access to compensation procedures and the chances of receiving compensation, not only in itself but also in relation to the ECJ’s landmark judgment of 16 July 2020, we conclude that the compensation available for victims of sexual violence in some of the EU countries in this study is neither fair nor appropriate. It is important to note that this conclusion applies only for the five EU Member States examined in this study. For a more comprehensive conclusion about the fairness and appropriateness of compensation in the EU, practices in all Member States will need to be investigated.Footnote 22 Nevertheless, the information in the current study, in combination with the framework that was developed based on the ECJ’s 2020 judgment, could serve as a good benchmark for other countries seeking to establish and improve the fairness and appropriateness of the access they provide to compensation and hence enhance victim participation.

Implications for Policy

Several implications for policy can be drawn from the current research. This study shows the importance of compensation awarded by a court actually becoming available to the victim. A best practice would be to have a debt collection agency, like the CJIB in the Netherlands, for enforcing payment of compensation by sentenced offenders.Footnote 23 Ideally this should be complemented by a state system for advance payment. As mentioned above, the July 2023 Proposal to amend the Victims’ Rights Directive includes this approach. In addition, an easy-to-navigate and effective adhesion procedure should be in place, and no fees should apply. State-funded lawyers and/or other forms of legal aid should be available for victims of sexual crimes who pursue criminal prosecution. Standardisation of compensation amounts and a standard application form are also recommended. Furthermore, state compensation amounts should be reassessed on the basis of the framework provided by the ECJ in 2020.Footnote 24 Any fixed amounts applying should vary in line with the severity of the violence suffered. State compensation should be available independently of the outcome of criminal proceedings. Having to wait for the final judgment in a criminal trial involves disproportionally long waiting times and hence places an unacceptable burden on victims. The timeframe for applying for state compensation should be sufficiently long or flexible to allow access to justice. Furthermore, it would seem appropriate to require state compensation to be decided upon promptly, for example within six months after the victim has applied.

Implications for Future Research

The main implication for future research is to collect more empirical data. Very little empirical data is currently available regarding compensation of victims of sexual crimes (the only empirical data available for the purposes of this study was from the Netherlands, Spain and Greece to a limited extend). More empirical data is needed in order to inform practice and policy, and to achieve meaningful change for victims of sexual crimes. In order to improve legal practice, it is essential to know at least the numbers of victims applying for compensation, the approval and rejection rates, and the amounts awarded and paid to victims. According to the Strategy for Victims’ Rights (2020–2025), Member States should evaluate their national compensation schemes and, if necessary, eliminate existing procedural hurdles; ensure that fair and appropriate state compensation for violent intentional crimes is reflected in the national budgets; take action to ensure that victims are not exposed to secondary victimisation during the compensation procedure, and cooperate with other Member States in cross-border cases. In addition to empirical data, it is important to analyse compensation policies, and to compare law in the books with law in practice. Empirical data is needed to support change for the benefit of victims in general, and victims of sexual violence in particular. By working together, researchers from different backgrounds (in empirical legal research and practice) and different countries can make a difference.