Taking victims' rights seriously


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Presentation by Albin Dearing, Programme Manager Research - Criminal Law and Criminal Justice in conference "Supporting Victims of Crime in Latvia – Possibilities and Challenges" organised by Centre for Public Policy PROVIDUS on February 21-22, 2013 in Riga.
Conference was organized in project "Conference is organized within framework of project Response to Crime Latvia and Beyond”.

Further information about project: http://www.providus.lv/public/26862.html
Further information about conference: http://www.providus.lv/upload_file/Projekti/Kriminalitesibas/Victim%20support/Conference_web.pdf


Prezentācija "Taisnīguma pieejamība - patiesa iespēja noziegumos cietušajiem izmantot savas tiesības" (Albin Dearing, Eiropas Savienības Pamattiesību aģentūras Brīvību un tieslietu departamenta Krimināllikuma un Krimināltiesību pētniecības projektu vadītājs ) konferencē "Atbalsta sistēma noziedzīgos nodarījumos cietušajiem – Latvijas iespējas un izaicinājumi".
Konference tika organizēta 2013.gada 21.-22.februārī Rīgā projekta "Atbalsta sistēma noziegumos cietušajiem - Latvijā un citur" ietvaros.

Plašāka informācija par projektu: http://www.providus.lv/public/27560.html
Plašāka informācija par konferenci: http://www.providus.lv/public/27812.html

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Taking victims' rights seriously

  1. 1. TAKING VICTIMS‘RIGHTS SERIOUSLYVictims of crime and the Charter ofFundamental Rights of the European Union
  2. 2. Overview • A fundamental rights-approach to victim support (a European perspective) • Some preliminary remarks on the state and the development of victim support in the EU
  3. 3. First obligation of a state:to respect the fundamental rights of individuals State S (Agents A-Z) Rights- holder R
  4. 4. Second obligation of a state: to protect fundamental rights State S Protection by preventive measures, and as regardssevere violations: by criminal law (Agents A-Z) Right to protection Private Rights- Person P holder R
  5. 5. ECtHR, case MC v. Bulgaria‘While the choice of the means to secure compliance withArticle 8 in the sphere of protection against acts of individuals isin principle within the States margin of appreciation, effectivedeterrence against grave acts such as rape, where fundamentalvalues and essential aspects of private life are at stake, requiresefficient criminal-law provisions.’ECtHR, M.C. v. Bulgaria, no. 39272/98, 4 December 2003, para 150.
  6. 6. ECtHR, X and Y v. the Netherlands‘The protection afforded by the civil law in the case ofwrongdoing of the kind inflicted on Miss Y is insufficient. This is acase where fundamental values and essential aspects of privatelife are at stake. Effective deterrence is indispensable in this areaand it can be achieved only by criminal-law provisions’.ECtHR, X and Y v. The Netherlands, no. 8978/80, 26 March 1985, para. 27.
  7. 7. If state fails to protect, a third obligation arises: to redress the victim As regards severe State S violations: criminal law proceedings and Statesanctions as a means of (Agentsprotection and redress compensation A-Z) The victim’s right to have access to justice Private Rights- Person P holder R Restitution
  8. 8. Criminal proceedings serve two rights of the victim:the right to effective protection and the right toredressProtection: Criminal proceedings reinforce criminal lawdefinitions as a means of effectively censoring anddeterring criminal conduct‘The Court reiterates that the obligation to protect the right to life underArticle 2 of the Convention, read in conjunction with the States general dutyunder Article 1 of the Convention to “secure to everyone within [its]jurisdiction the rights and freedoms defined in [the] Convention”, requires byimplication that there should be some form of effective official investigationwhen individuals have been killed as a result of the use of force. Theinvestigation must be, inter alia, thorough, impartial and careful.’ ECtHR, Carabulea v. Romania, application no. 45661/99, judgment of 13 July 2010, para. 127.
  9. 9. Criminal proceedings serve two rights of the victim:the right to effective protection and the right toredressAffording redress to the victim and granting appropriaterelief‘In cases of suspicious death or ill-treatment, given the fundamentalimportance of the rights protected by Articles 2 and 3, Article 13 requires, inaddition to the payment of compensation where appropriate, a thorough andeffective investigation capable of leading to the identification andpunishment of those responsible for the acts of ill-treatment’. ECtHR, Carabulea v. Romania, para. 165.
  10. 10. Again: Criminal law is needed‘The Court has already found in similar cases that any other remedies,including a claim for damages, are theoretical and illusory, and not capableof affording redress to the applicant.’ ECtHR, Carabulea v. Romania, para. 166.
  11. 11. Effectiveness of investigation andprosecution‘The investigation must also be effective in the sense that it is capable ofleading to the identification and punishment of those responsible. This isnot an obligation of result, but one of means. The authorities must havetaken all reasonable steps to obtain all available evidence concerning theincident, including, inter alia, eyewitness testimony, forensic evidence and,where appropriate, an autopsy report’. ECtHR, Carabulea v. Romania, para. 165.
  12. 12. The victim‘s right to have access to (criminal and civil) justice under the ECHR and under the FR- CharterUnder the ECHR Under the FR-Charter•Procedural limbs of •Procedural limbs ofsubstantive articles substantive articles•Access to justice under •Access to justice underarticle 13 ECHR article 47 of the Charter•(Normally, no rights of •Right to fair trial undervictims under article 6 article 47 of the Charter!ECHR, except partiecivile)
  13. 13. What does the right of the victim to haveaccess to justice include under the FR-Charter?Rights under the ECHR and the FR-Charter:•Comprehensive definitions in substantive criminal law;•A thorough and effective investigation capable of leading to theidentification and punishment of offenders;•Effective access to the investigatory procedure;•Promptness of proceedings;•A sufficient element of public scrutiny;•Proceedings initiated ex officio;•No manifest disproportion between the gravity of the act and thepunishment imposed.Additional rights (only) under article 47 of the FR-Charter•Right to a fair and public hearing by an independent tribunal;•Right to be advised and represented;•Legal aid.
  14. 14. Under the FR-Charter victims arenot just witnessesGiven the right of victims to effectively participate incriminal proceedings it is more appropriate to see them asparties to criminal proceedings than as witnesses.Otherwise there is a risk that victims are abused to serve‚public interests‘ in criminal proceedings.Victims‘ rights are not contingent on their readiness tosupport investigation or prosecution.
  15. 15. The victim‘s right to have access tojustice must be effective in practice• ECtHR “The Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective”• CJEU: Effet utileVictims must be given all the practical support which they need in order to actually and effectively have access to justice!• The provision of victim support,• raising victims’ awareness of their rights,• responsiveness of law enforcement personnel to the rights and needs of victims (sufficient training)are aspects of the victims’ right to have access to justice.
  16. 16. Victim support in the EUVast differences as to: • Availability of support to victims • The tasks of victim support services relate to and depend on the rights of victims, in particular in the framework of criminal proceedings • The role of the state: providing or funding victim support, coordinating support services • Availability of volunteers (tradition, culture of charity organisations and voluntary work) • Division of labour between generic victim support organisations and specialised services • Availability of tailor-made offers for specific groups, e.g. exploited migrant workers, victims of road-traffic accidents, victims of hate-crimes • Separation of victim support from support provided to offenders • Support on request or provided pro-actively intervening with victims • Level of cooperation with public authorities (mutual trust?) • Financial/economic crisis has impacted on availability of funds
  17. 17. Victim support in transition ?There are indications of a transition process from privateinitiatives to the development of a public function understate responsibility and supervision•A consequence of the victims‘ rights discourse (including an increasingdemand for legal advice)•However, even if victim support is seen as a public function, voluntarywork can and will remain an indispensable pillar of support provision•Responsibility requires monitoring,monitoring requires agreed standards and quality safeguards•Advocacy by sufficiently independent NGOs remains important