Victims Rights

Il presente lavoro si concentra sulla partecipazione delle vittime nel procedimento di fronte alla International Criminal Court. L'argomento oggi riveste una particolare rilevanza nell'ambito della giustizia internazionale che, già durante il XX secolo, aveva iniziato a manifestare la volontà di condannare gli atroci crimini commessi. È però evidente la marginalizzazione della vittima nelle esperienze dei Tribunali internazionali, basti pensare ai Tribunali di Norimberga e di Tokyo, ed anche ai successivi Tribunali ad hoc. Il riconoscimento dei diritti delle persone, in particolare delle vittime, è oggi considerato incontestabile; differentemente la loro ammissione al procedimento ha riscontrato forti difficoltà ed è trascurato che la tutela dei diritti sostanziali si realizza attraverso la concreta attuazione di quelli processuali. La giustizia internazionale tradizionalmente non ha dato voce ai bisogni delle vittime, limitandosi a perseguire obiettivi punitivi. In questo panorama l'International Criminal Court ha adottato un diverso approccio, riconoscendo loro i diritti di protezione, partecipazione e riparazione 1. La Corte ha reso evidente così il passaggio da una giustizia punitiva ad una victim­ oriented. È evidente infine che l'evoluzione è ancora in corso, la Corte stessa, dalla sua istituzione, è in continua ricerca dell'equilibrio fra i diversi interessi nel procedimento, fra i quali anche quelli delle vittime.

In 2006 the Prosecutor released two statements addressing
communications received by his Office concerning allegations of crimes committed in Venezuela and Iraq. The February 2006 communication of the Prosecutor discusses allegations received by the Office of the Prosecutor concerning genocide, crimes against humanity, and war crimes in Iraq. This Article will address the Prosecutor's decision concerning these alleged war crimes; in particular, allegations concerning wilful killing or inhuman treatment of civilians. The crimes alleged include  mistreatment of prisoners, and multiple cases of unlawful
executions. The Prosecutor decided not to initiate an investigation into the alleged war crimes. Although he ultimately had reason to decide this way under the principle of complementarity, this Article will contend that the reasoning used in the decision was flawed, and many issues that should have been considered were not. Issues not addressed include the interests of victims, the interests of justice, and a broad consideration of the gravity of the alleged offences. The absence of such considerations from the communication has produced a dubious precedent in decisions concerning war crimes admissibility and the interests of victims in proceedings before the Court. Such elements should not be by-passed in future considerations by the Prosecutor of whether to initiate an
investigation.

Despite repeated legislative attempts to restrict the use of sexual history evidence in rape trials, it continues to be admitted in many cases, causing considerable debate and leading to further attempts to reform the law. In this light, this article examines afresh the admissibility of sexual history evidence in rape trials. It focuses particularly on evidence relating to persons other than the accused (third-party evidence), following the recent controversial judgment of the Court of Appeal in R v Ched Evans where such evidence was introduced. The justifications for restricting sexual history evidence are considered, as well as research data on how often it is being used. Following an analysis of the current law, the article concludes that urgent reform is needed and a number of law reform options are examined. Lord Coleridge, giving judgment in 1887, would be forgiven for thinking that in R v Riley he had settled the law on whether sexual history evidence with parties other than the accused is relevant in rape trials. He said that in seeking to prove whether or not a criminal attempt to rape, as was the issue in that case, has been made 'upon her by A, evidence that she has previously had connection with B and C is obviously not in point'. 1 He continued that any such evidence should be excluded:

The transitional justice (TJ) agenda in Nepal has been largely circumscribed by TJ experts, brokers and implementers. While participation provides avenues for victims, among others, to be involved in TJ processes, many actors, including victims, will engage in participatory activities according to their own interests. Yet, we must ask, who are considered victims? Who determines whether someone is a victim and what implications, if any, does this determination have and what do victims want? This article examines the 'victim' label in Nepal. I argue that victimhood is often connected with state support. I also argue that the way TJ scholars and practitioners identify victims, based on the harm caused, does not always align with the way community members perceive victimhood, which is often based on suffering.

Σκοπός του Οδηγού αυτού είναι η έγκυρη πληροφόρηση και καθοδήγηση των ανθρώπων που βίωσαν, βιώνουν ή φοβούνται ότι θα βιώσουν βία ή διάκριση - λόγω της ταυτότητας/έκφρασης φύλου τους ή/και του σεξουαλικού τους προσανατολισμού - αλλά και όλων των επαγγελματιών κοινωνικών φορέων/υπηρεσιών του δημόσιου και ιδιωτικού τομέα, που έρχονται σε επαφή μαζί τους.

Η παρούσα έκδοση αποτελεί μέρος του έργου "Πες το σ' εμάς", το οποίο υλοποιεί η ΜΚΟ Colour Youth - Κοινότητα LGBTQ Νέων Αθήνας με επιχορήγηση από το Πρόγραμμα Επιχορήγησης ΜΚΟ στην Ελλάδα «Είμαστε όλοι Πολίτες», που εντάσσεται στον Χρηματοδοτικό Μηχανισμό του Ευρωπαϊκού Οικονομικού Χώρου Περιόδου 2009 – 2014 και χρηματοδοτείται από την Ισλανδία, το Λιχτενστάιν και τη Νορβηγία. Διαχειριστής Επιχορήγησης του Προγράμματος είναι το Ίδρυμα Μποδοσάκη.

Οι απόψεις που εκφράζονται στην παρούσα έκδοση είναι των συγγραφέων και δεν απηχούν απαραίτητα τις απόψεις του Χρηματοδοτικού Μηχανισμού του ΕΟΧ ή του Ιδρύματος Μποδοσάκη.

Sexual assault cases have historically resulted in persistent victim dissatisfaction with, and alienation from, the prosecution process. As a result, some adversarial jurisdictions have moved contentiously towards integrating victim participation rights within the legal process to address sexual assault victims’ procedural and substantive justice concerns. The introduction of section 34 of the Sex Offenders Act 2001 (IRE), which allows a victim to access state-funded legal representation to oppose a defendant’s application for the introduction of the victim’s sexual history evidence in court, is one such example. Drawing from five interviews conducted with high-level criminal justice professionals, legal stakeholders and victim support workers, and an analysis of primary source documents, including legislation and reports, this paper argues that, although section 34 represents a unique response to the problems raised by the use of a victim’s sexual history evidence in criminal trials, its shortcomings may hinder its capacity to improve sexual assault victims’ procedural justice experiences in ways unanticipated from its introduction.

Η έκδοση πραγματοποιήθηκε στο πλαίσιο υλοποίησης του Έργου «Βγες Μπροστά: Ενδυνάμωση και υποστήριξη θυμάτων εγκλημάτων μίσους κατά ΛΟΑΤΚΙ+ ανθρώπων» («Come Forward: Empowering and Supporting Victims of Anti-LGBT Hate Crimes»).
Σκοπός της έκδοσης είναι η ενημέρωση και ο εφοδιασμός των θυμάτων ομοφοβικών, τρανσφοβικών και αμφιφοβικών εγκλημάτων μίσους με πρακτικά εργαλεία ως προς τον τρόπο αναγνώρισης και αναφοράς εγκλημάτων μίσους αλλά και περιστατικών ρητορικής μίσους. Η έκδοση περιλαμβάνει τύπους εγκλημάτων μίσους κατά ΛΟΑΤΚΙ+ ανθρώπων και μια σύντομη περιγραφή των δικαιωμάτων τους, μέσω της σύνοψης του σχετικού νομοθετικού πλαισίου και της ποινικής διαδικασίας. Επιπλέον, περιλαμβάνει έναν αναλυτικό κατάλογο φορέων καταγραφής περιστατικών και υποστήριξης θυμάτων, με σκοπό την ενδυνάμωση θυμάτων και αυτοπτών μαρτύρων ώστε να καταγγείλουν περιστατικά και να λάβουν υποστήριξη.

In criminal contexts, a “victim” is typically defined as someone who has been harmed by a crime. Yet the word commonly appears in legal contexts that precede the adjudication of whether a crime has occurred. Each U.S. state guarantees “victims’ rights,” including many that apply pre-adjudication; ongoing “Marsy’s Law” efforts seek to expand and constitutionalize them nationwide. At trial, advocates, judges, and jury instructions employ this word even though the existence or not of crime (and thus of a crime victim) is a central question to be decided. This usage matters in part because of its possible consequences: it risks obscuring and weakening the defense side of our two-sided system. Changing the language is thus a reasonable reform. But the usage matters also because of the underlying impulses, assumptions, and realities that it reveals. An exploration of those helps to illuminate broader concerns that require systemic, rather than merely linguistic, change.

Something has to change regarding police abuse cases in the United States. Police officers continue to shoot unarmed Black and Latino men without any consequence. Shooting after shooting, victims and society are left with a feeling of injustice and many unanswered questions. This article is a mere attempt to contribute to the discussion on what can change. In Argentina, the victim of a crime is entitled to fully participate in criminal investigations and trials to seek a conviction. Victims, as a party in the criminal proceeding, are called “querellante.” Roughly translated, it means the “complainant victim.” The role of the complainant victim in the criminal process in Argentina has proven to be significant in the search for justice while maintaining the proper balance between defense and prosecution, which is necessary for an adequate justice system. The participation of the victim has proven essential to human rights processes in combating police misconduct and pursuing the prosecution of ordinary crimes, such as business fraud and other economic crimes, while not destroying the proper balance required to assure a fair trial for the defendant. Their presence has been especially important in human rights trials dealing with cases of enforced disappearances, torture, rape, kidnapping of children and homicide that took place during the Argentine dictatorship between 1976-1983 or in cases of institutional violence. Greater access for the complainant victim helps achieve better results, and in many cases, justice. In the case of the proceedings regarding the crimes committed during the Argentine dictatorship, the complainant victims played a central role in reopening terminated cases. Therefore, the participation of the victim has enhanced the possibility of reducing the gap between real and legal justice, and, as a consequence, conveyed truth, memory, and justice from the legal system to society regarding the worst crimes committed during the last dictatorship.
This is not what happens in the United states. Take the Michael Brown case, for example. In August of 2014, Michael Brown was shot and killed by Ferguson Police Officer, Darren Wilson.  This was an extremely controversial shooting, considering that Brown was unarmed and presented no immediate threat, but still, Wilson shot him approximately seven times. Because Brown’s family was not entitled to participate in the proceedings that followed, they were forced to rely entirely on the prosecutor, who decided to present the evidence to the grand jury in a way that some have criticized as pro-police. Furthermore, evidence was gathered almost without any involvement of Brown’s family. Against all odds, the result was a “no bill” from the grand jury. This paper intends to show, through the explanation of what means to be a complainant victim, and then by the review and analysis of the evidence in the Michael Brown case, that participation in the criminal proceeding against Darren Wilson by the complainant victim, his family in this case, would have created a different result.

Transitional justice (TJ) has developed in relative isolation from development discourse. However, in recent years, a growing number of academics, practitioners and policy makers have advocated for the adaptation of participatory methods from development studies to TJ. This article critically analyses the opportunities and challenges of implementing participation in TJ. I argue that participation can provide avenues for the voices of victims and other stakeholders to be heard, albeit not without significant challenges. I also argue that there should be increased focus to carry out participatory attempts where victims and affected community members are partners and decision makers; this just might be a starting point to ensure that TJ is indeed victim-centric.

The 10-year anniversary of the EU Charter of Fundamental Rights becoming legally binding is due next December. This fast approaching anniversary gives us the fleeting opportunity to look back on the fundamental changes this momentum has brought about in EU law enforcement. I find that it most importantly entailed a change in the mindset of EU policy-makers giving more consideration to the respect of fundamental rights when making decisions. Nonetheless, in my view this shift is yet to be fully translated into the daily work of national and local law enforcement actors and thus the true realization of a rights-based approach is far from being achieved. I’m convinced that training continues to play an essential role in this endeavor. However, police officers generally have limited access to non-core fundamental rights education that would provide them with the necessary skills to adequately respond to contemporary security and fundamental rights challenges that are interconnected. Therefore, in my post I will explore why police training should promote the understanding of police officers that a rights-based approach does not limit policing work but underpins its legitimacy in society, decreases the surfacing democratic deficit in EU law enforcement and helps to build bridges with and among citizens and communities in Europe. In light of the turbulent events that occurred recently in Europe and fundamentally changed the EU’s security environment, understanding the need and potential of better targeted fundamental rights education of police officers seems more timely than ever.

The position and status of victims in the criminal justice process have been the subject of recent developments at the domestic, European and international levels in many aspects. The adoption of domestic legislations reflects the understanding of the challenges faced by victims and their commitment to a progressive judicial system. In this context, the recent amendments to its Code of Criminal Procedure in light of the recent Judicial System Reform by Albania seem to be a positive development towards the extensive participation of victims of crime in criminal proceedings. However, there are debates whether the right to participate is practically implemented and what is its impact on the criminal trial. This research shows the demand for the establishment of a neutral support mechanism to assist victims at all stages of the judicial process-from investigation to a final judgment. This paper addresses the perceptions and expectations of the judicial staff to address all the issues pertaining to victims' needs in and outside the criminal proceedings. This article aims: (1) to shed a light on the reasons behind the Judicial System Reform approach to amend the Code of Criminal Procedure rather than to adopt a comprehensive and comprehensible victim-oriented justice; (2) to reflect upon the role and rights of victims in the Albanian criminal justice system; and (3) to conclude with the recommendation to set up an effective long-term mechanism with the sole responsibility to provide the required support and assistance to the victims in Albania and in the context of the Kosovo Specialist Chamber.

En este trabajo examinamos la incidencia que los familiares
de víctimas de desaparición han tenido en el trabajo de la Procuraduría General de Justicia de Nuevo León, México, a través de la innovadora estrategia de mesas de seguimiento de casos, un mecanismo de interlocución formal entre autoridades investigadoras y familiares de víctimas asesorados por una organización civil de derechos humanos, que constituye un nuevo espacio socioestatal para ejercer el monitoreo cercano de las tareas de investigación y la exigencia de cuentas. Se revisa la implementación de la estrategia así como los factores que han permitido su continuidad durante más de cuatro años, a partir de 2011.

In this paper we examine the impact that the families of victims of disappearance have been on the work of the Attorney General of Nuevo Leon, Mexico, through the innovative strategy of case tracking tables, a formal dialogue between authorities researchers and victims’ families advised by a civil human rights organization, which is a new socio space to exercise close monitoring of research tasks and demands accountability. The implementation of the strategy is also reviewed, and the factors that have allowed its continuity for over four years from 2011.

De opkomst van een rechtenretoriek rondom het slachtoffer, ofwel zijn poging tot transformatie in een (nieuw type?) rechtssubject, verdient meer rechtsfilosofische aandacht. Parallel aan de opmars van het slachtoffer valt nog een andere trend te signaleren: die van de neergang van het rechtssubject als hoeksteen van de liberale rechtsorde, zijn gedeeltelijke vervaging en, in een groeiend aantal gevallen, zijn transformatie in een slachtoffer.

The Victims’ Right to Review (VRR) enables victims to request a review of a prosecutor’s previously finite decision not to proceed with charges; the outcome of which can include a reversal of that decision. Informed by the voices of those involved in the VRR’s development and operation, and a quantitative dataset unique to our study, this article analyses the VRR process and outcomes two years post its implementation. Ultimately, we argue that despite being a primary aim of the reform, transparency, accessibility and accountability concerns may hinder the VRR’s capacity to address victims’ procedural justice needs (information, voice, control, validation), thereby reducing its effectiveness.

In light of international advances in victims’ rights, their evolution and current status within national laws could be attributed to the efforts of international bodies. The latest European Union (EU) Victims’ Directive is the most detailed legislation to date. As a prospective EU Member State, Turkey should model this Directive. This comparative study identifies Turkey’s deficiencies in victims’ rights and highlights structural and cultural differences in provisions for victims’ rights within the EU Directive and Turkish law. Turkey’s ensuing adoption of Western law necessitates prerequisite awareness-raising on victims’ rights among authorities. While Turkey’s existing legal system entails effective legal remedies for ensuring victims’ rights within criminal proceedings, victim support services, additional protective measures and non-governmental organisations (NGOs) remain inadequate. Thus, Turkey is more in need of a roadmap and planning than of legal regulation. In this regard, the EU Victims’ Directive can provide valuable insights.

This article explores where participation rights of victims and the presumption of innocence come into conflict within the context of the International Criminal Court (icc) and whether this causes either set of rights to be violated. First it discusses the development of the right to the presumption of innocence at the icc and explains victims’ participation rights. Next it outlines how conflict between these two rights should be resolved. The article then examines three areas in which there is tension between victims’ participation and the presumption of innocence. These areas are: calling victims ‘victims’; evidence submission; and participation by questioning witnesses. Finally, the article concludes that the rights of victims and the accused can come into conflict and that in order to ensure that the right to the presumption of innocence is protected, and to provide victims with a meaningful right to participation, victims’ rights must be more clearly defined.

This report presents the research findings of a three-month socio-legal study focusing specifically on the development and implementation of ‘safe reporting’ policies as they exist in the Netherlands. It contributes to a broader project carried out by the University of Oxford’s Centre on Migration, Policy and Society (COMPAS) assessing ‘safe reporting’ of crime for victims and witnesses with irregular status in the United States and in Europe. In particular, this broader project intends to explore the legal and political replicability of so-called ‘firewall’ practices across different national contexts.The report has two central aims: first, it provides an overview of the existing Dutch legislation, policies, and practices, at both the national and local levels, relevant to ‘safe reporting of crime’ by irregular migrants, and broadly to assess the effectiveness of these measures. In doing so, it examines the implementation of various legislative instruments and polices, from the European regional level (including the EU Victims’ Directive) to various Dutch national and local ordinances. It focuses in particular on identifying the gaps and ongoing challenges of existing policies and practices in the area of ‘safe reporting’ for irregular migrant victims of crime. The second central aim of this report is to explore the applicability of so-called ‘sanctuary’ or ‘firewall’ policies in the Netherlands, while also identifying and discussing the unique features of the Dutch context that distinguish it both practically and juridically from the US context.

El presente texto contiene un análisis del libro de Verónica Michel, profesora del John Jay College of Criminal Justice de la City University of New York, Prosecutorial accountability and victim´s rights in Latin America (Cambridge, Cambridge University Press, 2018), publicado en Revista Política Criminal

Rushed by the Danish Presidency of the Council, the Directive establishing minimum standards on the rights, support and protection of victims of crime was adopted by the European Parliament on 12 September 2012, pursuant to a First-Reading Agreement between the two institutions.

Questions remain though about the identification of vulnerable victims, who are to receive additional rights.  While the original proposal had contained an explicit list of crimes the victims of which were to be considered vulnerable, the Agreement has downplayed this list, strengthening the so-called “individual assessment” instead.  Setting out special measures for vulnerable victims, but then leaving the assessment as to who is vulnerable to Member States, resembles minimum harmonization. 

Drawing on the author’s earlier work with the National Centre for Cyberstalking Research, this paper asks whether minimum harmonization can work for a concept like vulnerability – especially without mutual recognition.  Have we swapped excessive formalism for a free-for-all?