1) Without prejudice to the rights of the defence and in accordance with rules of judicial discretion, Member States shall ensure that victims with specific protection needs who benefit from special measures identified as a result of an individual assessment provided for in Article 2231(1), may benefit from the measures provided for in paragraphs 2 and 3 of this Article. In exceptional circumstances, a special measure envisaged following the individual assessment shall not be made available if operational or practical constraints make this impossible, or where there is an urgent need to interview the victim and failure to do so could harm the victim or another person or could prejudice the course of the proceedings.

2) The following measures shall be available during criminal investigations to victims with specific protection needs identified in accordance with Article 2231(1):

a) interviews with the victim being carried out in premises designed or adapted for that purpose;

b) interviews with the victim being carried out by or through professionals trained for that purpose;

c) all interviews with the victim being conducted by the same persons unless this is contrary to the good administration of justice the independence of the judiciary;

d) all interviews with victims of sexual violence, gender-based violence or violence in close relationships including victims of violence against women and domestic violence covered by Directive (EU) …/… of the European Parliament and of the Council⁶⁵ [on combating violence against women and domestic violence], unless conducted by a prosecutor or a judge contrary to the independence of the judiciary, being conducted by a person of the same sex as the victim, if the victim so wishes, provided that the course of the criminal proceedings will not be prejudiced.

3) The following measures shall be available for victims with specific protection needs identified in accordance with Article 22 31(1) during court proceedings:

a) measures to avoid visual contact between victims and offenders including during the giving of evidence, by appropriate means including the use of communication technology;

b) measures to ensure that the victim may be heard in the courtroom without being present, in particular through the use of appropriate communication technology;

c) measures to avoid unnecessary questioning concerning the victim’s private life not related to the criminal offence; and

d) measures allowing a hearing to take place without the presence of the public.

The European Commission’s proposal introduces notable changes to this article. It includes the addition of physical protection measures and aligns the provisions with the proposed VAW Directive.

VSE supports these changes but proposes additional amendments that will increase the use of protection measures whilst reducing the frequency with which victims are denied protection. This is reflected by removing vague exceptions such as ‘contrary to the interests of justice’ which can be used too easily as a catchall to repeatedly deny victims protection.

At the same time, it is recognised that there remain circumstances where protection may not be possible or appropriate. For example, in some States, interviews may be carried out by the prosecution or by a judge, and it may be contrary to the independence of the judiciary to seek that the interviewer is changed or not chosen according to pre-existing rules. VSE’s proposal therefore retains an exception but adds precision to its use.