Victimology and Victim Rights

International comparative perspectives

Tyrone Kirchengast

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317002284
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book examines the international, regional and domestic human rights frameworks that establish victim rights as a central force in law and policy in the twenty-first century. Accessing substantial source material that sets out a normative framework of victim rights, this work argues that despite degrees of convergence, victim rights are interpreted on the domestic level, in accordance with the localised interests of victims and individual states. The transition of the victim from peripheral to central stakeholder of justice is demonstrated across various adversarial, inquisitorial and hybrid systems in an international context.

Examining the standing of victims globally, this book provides a comparative analysis of the role of the victim in the International Criminal Court, the ad hoc tribunals leading to the development of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, together with the Extraordinary Chambers of the Courts of Cambodia, Special Panels of East Timor (Timor Leste), and the Internationalised Panels in Kosovo. The instruments of the European Parliament and Council of Europe, with the rulings of the European Court of Justice, and the European Court of Human Rights, interpreting the European Convention of Human Rights, are examined. These instruments are further contextualised on the local, domestic level of the inquisitorial systems of Germany and France, and mixed systems of Sweden, Austria and the Netherlands, together with common law systems including, England and Wales, Ireland, Scotland, USA, Australia, Canada, New Zealand, India, South Africa, and the hybrid systems of Japan and Brazil.

This book organises the authoritative instruments while advancing debate over the positioning of the victim in law and policy, as influenced by global trends in criminal justice, and will be of great interest to scholars of international law, criminal law, victimology and socio-legal studies.

Part I
Victimology and victim rights in comparative contexts

1 Victim issues in international law and context

Introduction

The reform of domestic victim rights frameworks toward regional and international standards may be one of the identifiers of the twenty-first-century movement towards redressing the wrongs occasioned to victims as vulnerable members of society. However, localised attempts to reposition the victim in justice and trial processes are highly variable, and have been met with mixed success. Although international convention seeking a new role for the victim may best afford legal and policy change where a member state or country ratifies the convention consistent with the original instrument, pressure from the international community may see certain reforms emerge, even where states do not ratify convention rights directly. International norms, without direct ratification into law, may also be adopted in local policy. The development of victim interests in law and policy therefore emerge through different mechanisms with regard to different pressures and priorities, according to the legal and political contexts of local jurisdictions. Significant here is the realisation that victims deserve rights and powers that position them as stakeholders of law and justice, and as important to the justice process generally.

Local conditions, or the particular contours of criminal justice as specific to each jurisdiction, remain important determinates in each system of justice. The needs of victims and their desire to participate and to be heard, as well as the normative attitude towards victim participation by justice stakeholders, are important determinants of any system of justice. The extent to which a particular nationalised system allows for the voice of the victim will be largely determined upon pre-existing norms and standards that provide for victims in specific ways. The substantive and procedural requirements that enable participation in each jurisdiction give a strong indication as to the normative positioning of the victim in that particular system. International and regional conventions may influence justice processes, particularly in those countries that provide a limited role for victims. However, local conditions and the needs of individual victims within a particularised justice context will always provide important qualifiers on the actual extent to which we can realise the emergence of an international or regional framework of victim rights and powers on a domestic basis.

While certain justice practices, such as investigation following complaint, followed by arrest and court appearance, and where guilty, conviction and punishment, are common throughout the world, each jurisdiction provides for these in stages of the criminal process in different ways. Where an international instrument is then integrated into the local level, certain practices may be standardised. However, much of the reality of the criminal process for justice professionals may bear little resemblance to these international standards. Added to this is the fact that the recognition and role afforded to the victim of crime may vary considerably within states, let alone across states and countries. The arguments in favour of the internationalisation of victim rights and powers thus need to be read against the reality of the prevailing practices of the local, and the dominance of criminal procedure, as the guiding system of practices that brings context to the substantive arrangements of each justice system. These arrangements also provide for the participation and interaction of victims with justice stakeholders and agencies at the local level.

There is much discussion and evidence of increasing international convergence regarding the integration and support of the victim in both law and policy (see Doak, 2008; Hall, 2009, 2010). Boundaries which were once cited as distinguishing one system of justice from another – adversarial versus inquisitorial, constitutional versus common law, code versus common law – are being slowly dismantled by statutory and policy amendment to afford victims a greater role in government decision-making, in legal proceedings, as community stakeholders, and as individuals with enforceable rights. Convergence between systems of justice has resulted in increased policy transfer between jurisdictions, and a willingness to pilot innovative programs that relocate the victim as a significant stakeholder in criminal law and justice in an international context.

While systems of justice converge, however, assisted by international law and procedure and policy transfer between like jurisdictions, laws and policies that seek to relocate the victim into proceedings are always actioned at the local, domestic level. The actioning of law and policy in local contexts provides for the argument of this book. Despite greater globalisation of victim rights and powers, victim rights are not necessarily universalised according to international standards because of the localised contexts of criminal and administrative law as the main arenas for the integration and provision of victim rights on a domestic basis. The significance of the local may be demonstrated with regard to any of the individual jurisdictions traced in the book. However, where countries are constituted by states that maintain jurisdiction over criminal law and procedure, including the United States of America (USA), Brazil, or Australia, or where criminal law remains the jurisdictional responsibility of individual countries, such as those that make up the United Kingdom (UK), the possibility for jurisdictional divergence is exacerbated, despite adherence to international norms and processes. Thus, the international convergence that allows for a comparative analysis of the jurisdictions covered in this book also recognises and identifies that this convergence must be read within local contexts. This is due to the discrete application of victim rights in a policy context that aims to make sense of and enable individual access to those rights and powers. International law and procedure are therefore interpreted through the lens of local policy to make those processes available to victims in a given jurisdiction. The dynamic of justice relations and nationalised norms of justice in any given jurisdiction therefore vary according to locally determined issues and polemics, including the systemic limitations provided by a state’s adherence to adversarial and inquisitorial systems of justice, and the need to enforce regional agreements. The extent to which international norms shape the local also depends on the extent to which each system is victim-focused in the first instance.

Rather than be identified as oppositional, justice systems arguably fit on a continuum from strongly adversarial to inquisitorial. In many instances, insistence of adherence to one or the other system is rhetoric, the result of fervent nationalism and politics of the unknown ‘other’ (Summers, 2007). Other systems may comprise hybrid systems that may be described as neither adversarial nor inquisitorial. Other factors are also determinative to local processes. These include the extent to which each jurisdiction adheres to international norms, is a signatory to international instruments, ratifies individual instruments, adopts international standards in its local courts, or allows for international courts within its local jurisdiction. Much will vary between jurisdictions, and this realisation, in the context of assumption of increasing global intervention, necessitates the analysis and evaluation of victim rights on the local level.

The book will provide an international comparative analysis of victim rights frameworks as they have emerged on an international, regional, and domestic basis. The book will also provide comparative materials on victim rights, laws, and policies in England and Wales, Ireland, Scotland, USA, Australia, Canada, New Zealand, India, South Africa, Japan, and Brazil. The continental European approaches will also be considered. In particular, the inquisitorial countries of Germany and France will be compared with the mixed adversarial and inquisitorial systems of Sweden, Austria, and the Netherlands. The instruments of the Parliament of the European Union (EU), or European Parliament, will be considered, as will the jurisprudence of the European Court of Justice, and the European Court of Human Rights (ECtHR) interpreting the European Convention of Human Rights (ECHR), to demonstrate how the existing legal record of member states can be influenced by regional courts and frameworks. International law, specifically the rights of victims before the International Criminal Court (ICC), and before ad hoc tribunals exercising international law, including the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), will be considered as forerunners to the development of a victim rights framework to afford substantive participation, as seen with development of the Extraordinary Chambers of the Courts of Cambodia (ECCC), Special Panels of East Timor (Timor Leste) (SPTL), and the Internationalised Panels in Kosovo (IPK), as courts exercising international law in a domestic context.

A multi-jurisdictional approach

The focus on multiple jurisdictions internationally is essential to the remit and argument of this book. The comparison of international frameworks, jurisdictions following a civil European tradition, and common law and other non-European inquisitorial or hybrid-adversarial systems, as well as countries with emerging victim rights records, will indicate the degree of international convergence amongst victim rights and powers while allowing for a focus on the particular detail of local policy practice to demonstrate the actual application of these international norms in a local context. Importantly, this will demonstrate how international norms and practices are often synthesised into domestic law and policy or even alongside local practices sometimes incompatible with international standards, but which continue to exist out of adherence to such practices by local stakeholders, including government and justice professionals.

The limits of this book include the ability to map in specific and direct ways the implementation of actual declarations of victim rights where a jurisdiction is not a signatory to those frameworks. Although most nations are members of the United Nations (UN), a human rights body exercising universal jurisdiction and membership, they may be not be signatories to other international instruments out of choice, or may be precluded on the basis of geography and regional specificity. This does not limit the fact that the law and policy of many jurisdictions are nevertheless influenced by international human rights discourse. Rather than direct ratification, many jurisdictions augment or reform law and policy by making discrete changes at the local level. This characterises international criminal justice through local processes, as between the rights of individuals, potentially depriving it of standing as a mode of global justice (see Mégret, 2014b, 2015, 2016). How this comes about in non-systematised ways or through processes other than direct ratification is covered in Chapter 3. While some jurisdictions make significant changes to their criminal procedure (see Japan, also Italy regarding the 1988 change to a hybrid-adversarial system under the Codice di Procedura Penale, Code for Criminal Procedure) in one attempt at reform, others inculcate change in an incremental way, by allowing courts to interpret and utilise international or regional frameworks (see England and Wales), while others principally do this by processes of international treaty, law reform, and policy transfer (see Australia, Canada, New Zealand, and South Africa). However, all jurisdictions will also continue to ratify relevant instruments directly in addition to alternative modes of law and policy reform, where relevant and necessary.

The consequence of focusing on criminal law and justice on the local, jurisdictional level detracts from the larger role of international human rights law as informing a global perspective on gross violations of human rights. This book does not advocate that the proper application of international human rights law is in its localised application to individual criminal justice systems, or indeed to the institution of the criminal trial. Rather, the consequence of the application of international human rights norms to the local level is changing the substantive and participatory rights of victims on the local level. It is doing this because of the application of international criminal processes and standards to the particular injustices faced by individual victims, and as a means of reforming old, resistant justice systems that are otherwise locked into justice traditions that determine the rights and powers of victims by reference to the extent to which they ought to be excluded from that system. The use of international human rights discourses challenges this assumption of the limited uses of victims, and their relationship with other justice stakeholders, to the extent that one cannot reduce international criminal justice to the level of the individual criminal trial. Mégret (2015: 79–80) warns against the reduction of international criminal justice in this way:

There is little doubt on the face of it that international criminal justice is primarily a form of criminal justice. The application and enforcement of criminal law through criminal trials are, after all, its primary modus operandi. This then results in an often single-minded focus on the justice being meted to the accused or possibly the victims, reducing international criminal trials to the huis-clot of a confrontation between accuser or accused – what is typically understood as the ‘fairness’ of international criminal justice. This obscures a more potent question – one increasingly raised at the periphery or ‘receiving end’ of international criminal justice – about what might be termed the social justice of international criminal justice, that is, the extent to which it can be understood as being socially just in the global community.

The reconsideration of the victim as an agent of justice out of adherence to ideas of international human rights law and jurisprudence arguably challenges the reduction of international criminal law to individual state trials. Instead, the reform of domestic systems based on the availability of international and regional norms that include the victim as an important and valued stakeholder of justice achieves the function of international criminal justice by breaking down normative barriers that would otherwise reduce the prosecution to that of a state trial. The victims, and their desire and need for voice, participation, and reparation, become significant and even paramount factors, and influence the development of localised criminal justice from the normative conceptualisation that criminal justice is ‘nothing more than the idea that certain transgressions should be met by particularly strong reactions from the law, including punishment and stigmatization’ (Mégret, 2015: 80). The inclusion of the victim changes the system, and the normative arrangement of justice stakeholders, and thus the focus of the trial on purely social transgression in aid of consolidating sovereign, state control, is transcended.

Law and policy/law or policy

The separation of law and policy is essential as far as it denotes the difference between sources of change and innovation from doctrine, as more or less authoritative media through which victims may be integrated. This distinction must be artificial, in that law often plays into policy development and policy, whether local or international, is increasingly cited in court judgements and by parliaments when affecting legal and regulatory change. Increasingly, in the context of international standards that are expected to be ratified on the local level, such policy is to be adopted into local laws and practices. The two sources of law and policy are thus intertwined, and the advent of the development of victim rights and interests is no exception. The distinction between law and policy may also be phrased in the context of the differences between hard and soft law. Over-reliance on hard law, or binding legal instruments, may neglect the significance afforded to soft law, or the quasi-legal or policy instruments that are non-binding in nature. Instruments of international law may be hard or soft law, depending on whether they bind member states. Although the distinction is primarily one of international law and procedure, the distinction is increasingly relevant to domestic states where regulation occurs through non-enforceable rights frameworks. The rise of victim rights on the domestic level thus calls for further consideration of the relevance of soft law as regulating victim interests in a non-enforceable or binding way (see Pemberton, 2014). Alternatively, the consequences of the manifestation of victim rights through sources of policy alone may have unseen consequences for victims, limiting their standing as peripheral to the decision-making processes of criminal justice agencies and the courts.

Criminal justice systems are predicated on an established set of criminal procedures that usually flow from the centrality of the criminal trial, and then put into practice through key justice stakeholders – namely the police, prosecutors, judicial officers, counsel, and government officials aligned with justice infrastructure and institutions. Victims are generally excluded even in those jurisdictions noted as preserving a role for the victim and fostering interplay between victims and state a...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of abbreviations
• List of international instruments
• List of statutes
• List of cases
• Preface
• Part I Victimology and victim rights in comparative contexts
• Part II The victim in internationalised systems of criminal justice
• Part III Victims in law and policy: discord and debate
• References
• Index