Victim Participation Rights

Variation Across Criminal Justice Systems

Kerstin Braun

• Publisher: Palgrave Macmillan
• Year: 2019
• ISBN:
  9783030045463
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This book traces victims' active participatory rights through different procedural stages in adversarial and non-adversarial justice systems, in an attempt to identify what role victims play during criminal proceedings in the domestic setting. Braun analyses countries with different legal traditions, including: the United States, England, Wales and Australia (as examples of mostly adversarial countries); Germany and France (as examples of inquisitorial systems); as well as Denmark and Sweden with their mixed inquisitorial-adversarial background. Victim Participation Rights is distinctive in that it assesses the implementation of formal processes and procedures concerning victim participation at three different procedural stages: first, investigation and pre-trial; second, trial and sentencing; and third, post-trial with a focus on appeal and parole. In addition, Braun provides an in-depth case study on the general position of victims in criminal trials, especially in light of national criminal justice policy, in Germany, a mostly inquisitorial system and Australia, a largely adversarial system. In light of its findings, the book ponders whether, at this stage in time, a greater focus on victim protection rather than on active procedural rights could be more beneficial to enhancing the overall experience of victims. In this context, it takes a close look at the merits of introducing or expanding legal representation schemes for victims.

© The Author(s) 2019

Kerstin BraunVictim Participation RightsPalgrave Studies in Victims and Victimologyhttps://doi.org/10.1007/978-3-030-04546-3_1

Begin Abstract

1. Victim Participation in Criminal Procedure: An Introduction

Kerstin Braun¹

(1)

University of Southern Queensland, Toowoomba, QLD, Australia

Kerstin Braun

Email: [email protected]

Keywords

UN declaration for victimsProcedural justiceInquisitorial systemsAdversarial systemsMixed criminal justice systemsParticipatory rights for victims

End Abstract

1 Introduction

During most of the twentieth century, victims of crime played a limited role in criminal proceedings in many jurisdictions. ¹ It was not until the 1970s and 1980s that scholars and policy makers started to challenge the diminished role victims held in the justice process (see in general Ash 1972; McDonald 1976; Shapland et al. 1985). Historically, victims had not always had such minimal impact. During the Early Middle Ages , victims of crime played a significant role in the administration of criminal justice by actively participating as private prosecutors (see in general Grakawe 1994, 2003; Kirchengast 2006; Sankoff and Wansbrough 2006). Over the centuries, however, the victim was marginalised from criminal trials in both common law and civil law jurisdictions and the victim’s role became mainly that of a witness (Garkawe 2003; Henkel 1937; Hubig 2008; Kilchling 2002; McDonald 1975; Rosenfeld 1900; Wemmers 2009). In this role, victims had little opportunity to present their views and concerns during proceedings and to participate actively at trial unless when testifying. One of the first scholars to acknowledge the situation was McDonald (1975, 650) who described the victim as ‘the forgotten man’ in criminal procedure. ²

Sometime between the late 1960s and early 1980s, the perception of victims and their needs underwent significant change in many Western states. During this time, scholars first started to notice and address the absence of victims from the criminal justice system and to highlight problems associated with their treatment (Ash 1972; Christie 1977; McDonald 1976; Schneider 1975). ³ Enhanced academic debate on, and increased public awareness of, victims and their role in the criminal justice system contributed to the adoption of an international instrument. In 1985, the United Nations (UN) General Assembly unanimously adopted the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (Declaration) in Resolution 40/34, ⁴ emphasising that ‘millions of people throughout the world suffer[ed] harm as a result of crime and the abuse of power and that the rights of these victims ha[d] not been adequately recognized’ (General Assembly Resolution 40/34 1985, [2]).

The General Assembly nominated a number of basic principles of justice for victims (‘basic principles’) that Member States should adopt in order to reduce secondary victimisation , ⁵ and secure justice and assistance for victims . The Declaration outlines four avenues of redress for victims of crime: access to justice and fair treatment (Declaration ss 4–7), restitution (Declaration ss 8–11), compensation (Declaration ss 12–13) and assistance (Declaration ss 14–17). Many basic principles enshrined in the Declaration are concerned with the provision of ‘services’ for victims. Such ‘service-rights ’ include treating victims with respect, providing them with information about proceedings as well as the progress of their individual case and offering opportunities to receive reparation from the offender or compensation from the state for losses suffered from a criminal act (Ashworth 2000, 18; Sanders et al. 2001; Groenhuijsen 2004, 63). These ‘service-related’ basic principles are largely undisputed in Member States. One basic principle contained in Section 6(b) concerning giving victims a voice in the criminal justice system, however, was strongly debated during the drafting of the Declaration. Section 6(b) of the Declaration explicitly sets out that:

The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by: (b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system.

During the drafting process of the Declaration, Member States reacted differently to the proposal of introducing victims’ participatory rights in the respective national criminal justice systems. Some Member States were concerned about potential risks for the procedural guarantees of defendants if victims were allowed to present views and concerns. ⁶ Others argued that victims had not been given the right to present views and concerns in their system in order to protect victims from proceedings which could otherwise be traumatic (Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders 1985, 157). Despite these concerns, the Declaration was unanimously adopted by the General Assembly in 1985 without a vote and without any reservations by Member States . ⁷

2 The Focus on Victim Participation

The question arises why victim participation, as enshrined in Section 6(b) of the Declaration, emerged as an important concept in improving the situation for victims in the criminal justice system. According to the Seventh Congress when drafting the Declaration, one major aim of providing victims with adequate justice mechanisms, including being able to present views and concerns, was to avoid further trauma for victims. The drafters of the Declaration explicitly pointed out that, particularly with regard to criminal proceedings, the lack of suitable arrangements for victims during the trial process could not only lead to the disassociation of victims from the outcome of the trial but could also cause secondary victimisation . It was feared that if victims’ views remained irrelevant to the process vigilantism and other undesirable responses could occur (Seventh United Nations Congress 1985, 142). In light of these considerations, the introduction of Section 6(b) could be seen as an attempt to avoid any further victimisation during criminal proceedings. Additional victimisation could potentially be reduced if victims perceived proceedings and outcomes as fairer due to the possibility of partaking in decision-making processes (Orth 2002, 314). The possibility for victims to present views and concerns could strengthen the victims’ perception that they have an important role to play in proceedings (Orth 2002, 321–324).

A second reason for the introduction of Section 6(b) could be assisting victims in obtaining therapeutic benefits , such as closure , through the criminal trial itself. As a consequence of the criminal act, victims can be left feeling unsafe and insecure (Richter 1994, 58). ⁸ The feeling of insecurity may be reduced through the victims’ perception that they play an important part in criminal procedure by being able to make their views and concerns known and by knowing that their views are deemed important (Richter 1994, 62). It has been found that consideration and acknowledgement are factors that can contribute to the healing process of victims and allow them to reach a form of closure (see Burkhardt 2010, 65 for explanations on victims’ needs in international criminal court proceedings). During discussions of the Seventh Congress, Member States’ representatives pointed out that having confidence in the criminal justice processes was essential for the individual victim but also for the general community to avoid any negative social impact. Furthermore, it was proposed that the lack of suitable participation arrangements for victims during the trial could lead to their ‘disassociation ’ with the outcome of the trial (Seventh United Nations Congress 1985, 143). The above suggests that victim involvement in the process was considered an important concept to reduce victim alienation from the criminal justice system and to ultimately contribute to providing victims with therapeutic benefits.

While the Declaration seems to propose that being heard and being able to express an opinion to a decision maker during proceedings can have a positive effect on victims, very little empirical work is available internationally on whether and to what extent participation can impact a victim’s experience in the criminal justice system, and whether it is likely to do so in a positive or negative way (Volbert 2012, 198–199). Some scholars have turned to procedural justice theory to explain why victims may perceive proceedings as more fair when they are afforded an opportunity to participate (see in general Van Camp and De Mesmaecker 2014). This explanation is based on the understanding that victims may perceive outcomes of particular decisions taken in the criminal justice system as unfair where their expectations are not met (on procedural justice theory, see Thibaut and Walker 1975). ⁹ This could then lead to secondary victimisation , meaning additional harm sustained through the victims’ experiences in the criminal justice system (Orth 2002, 315). As per the theory, however, a person’s perception of fairness does not solely...

Table of contents

• Cover
• Front Matter
• 1. Victim Participation in Criminal Procedure: An Introduction
• 2. Victim Participation: A Historic Overview
• 3. Victim Perspectives and Criminal Justice
• 4. Victim Participation: Investigation and Pre-trial Decisions
• 5. Victim Participation: The Trial and Sentencing Process
• 6. Victim Participation Post Trial: Appeals and Early Release
• 7. Limits of Victim Participation in Adversarial and Non-adversarial Systems—A Case Study of Germany and Australia
• 8. Victim Participation: An Enhanced Focus on Legal Representation for Victims
• 9. Victim Participation: Review and Conclusions
• Back Matter