The Legal Status Of The Victim Law General Essay

Published: 2021-08-03 22:00:07
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A comparison between a third party system and the implementation of the victim impact statement
Spain vs. the Netherlands
Ignacio Castellanos Herraiz – ANR 810226
Index
Introduction. The victim. P.3
The legal status of the victim. International Development P.4
Brief description of both systems. P.6
Weaknesses of both systems. P.8
Strengths of both systems. P.12
Main similarities between the systems. Common aims P.15
Conclusion P.16
Bibliography / References P.17
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Introduction. The victim.
Looking at the figure of victims in criminal proceedings, from the 70s until now has shown an important improvement. Historically, it was common that the process was carried out with the aim of enforcing the right of the victim against the offender, being this process an instrument for the imposition of a penalty on a defendant whose fundamental rights were recognized and guaranteed, seeking, and also facilitating, social reintegration and regardless victim minimum needs.
However, now we can distinguish how the victim may suffer two types of victimization:
Primary victimization - Negative experience of having suffered a crime.
Secondary victimization - Material damages and moral suffering the victim by the system during the conduct of criminal proceedings arising from the lack of adequate support and information from the criminal justice system.
The evolution of this secondary victimization let a new position of the victims in the process, needed to assert all their rights. As the Professor María Tardón said,
"building a criminal justice is not oriented only to the protection of the interests of society in general, and the guarantees of the accused, in particular, but also seek compensation for material and moral damage inflicted on the victim and result of the crime, also giving it a major role in the process" [1] .
But to exercise those rights in court, we need new technical methods that help establish channels of communication between the victim and the rest of players in the process. The implementation of the "Victim Impact Statement" or the use of a third party judicial system in criminal proceedings could be the answer.
The legal status of the victim. International Development.
The current evolution of the role of the victim in a criminal proceeding has to be managed in each country, but the first steps were taken in an international framework. The measures that improve the position of the victim focus on a series of regulations and international laws that indicate the guidelines to be followed by the various states.
First of all, we can highlight those regulations adopted by United Nations, as the "Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power" (General Assembly, 29 November 1985). This one generally regulates the protection of victims' rights and focuses on certain types of victims with special needs as women or children. It also covers the concept of International victim, and differences between direct victims (those who are individually injured) and indirect victims (those who are relatives or caregivers of the direct victim or those who have suffered damage while assisting victims in distress).
After that, we can point out the activity of the European Council, which has been embodied in some recommendations that, even given its character, have been transposed by member countries to ensure the main principles of the victimology. Some of those recommendations are the "Council of Europe Committee of Ministers Recommendation No. R(85) 11 to the Member States on the position of the victim in the framework of criminal law and procedure" adopted June 28, 1985; "Council of Europe Committee of Ministers Recommendation No. R(87) 15 to the Member States on regulating the use of personal data in the police sector" adopted on September 17, 1987; and the "Council of Europe Committee of Ministers Recommendation No. R(77) to the Member States, relating to compensation to crime victims" adopted on 28 September 1977. Apart from these measures, in the European sphere policies have remained in order to guarantee legal assistance to the victims and their compensation. Since the Special Council of Tampere, three aims have been set, and could be summarized in,
Define the legal statute of the victim. (Including the rights and obligations that the individual have in a criminal proceeding).
Try to ensure the effectively repair of the damages.
Create social systems that cover the most basic needs of victims.
Every single aim was achieved by the "Framework Decision from the Council of the European Union regarding to the Legal Statute of the victim in criminal proceedings", adopted on March 15, 2001. This legal tool provides equal rights for all European citizens, most notably the right to participate in the process and in criminal proceedings, the right to information, the right to adequate privacy and security, right to assistance and right to compensation for damages caused by the crime.
Brief description of both systems.
Spanish System from the point of view of the victim in criminal proceedings.
The Spanish system places the victim in a very active role during the process using three procedural techniques that reflects the "third party" or triangular criminal system.
The first technique let to the victim the exercising of the public action, constituting itself as a part on the process, even against the opinion of the public prosecutor.
The second technique is to increase the victim participation in the process, and can be implemented in two ways, firstly through the recognition of the right of the victim to participate in the investigation in order to obtain evidence of infringement; or secondly through the recognition of the right to appeal certain decisions on the instruction and the prosecution, or to seek judicial review after the sentence.
The third technique is reduced to ensure procedural attention to the victim.
Dutch System from the point of view of the victim in criminal proceedings.
The Dutch system is different, because the victim is not a real party in the process. But the victim experienced a major evolution during the process since 2005, year in which was introduced the "Victim Impact Statement" as a legal technique in the criminal proceedings in the Netherlands that improves the active position of the victim in the Court. We can describe this statement using the next extract which says that "This written statement gives according to the Dutch law the victim in serious cases the right to inform in the court session the public prosecutor, the judge and the offender how the crime has affected him. The victim can tell about the consequences of the crime; about the physical and emotional harm and changes in his lifestyle. In most cases the judge will read and present the victim statement in public. The court can take the details of the statement into account when sentencing the offender" [2] .
Weaknesses of both systems.
As we know, the victim has been the great forgotten issue in the criminal law over the past years. The evolution of the concept and the development of different models of integration of the victims into the criminal proceedings set up a new point of view, but even considering these advancements, it is possible to mark out some handicaps of one and another system.
Currently, on one hand and regarding to the Spanish third party system, we can found that the most important problem due to the victim’s role in the process is the victim itself. Paradoxically, the victim sometimes appeared to be a troublemaker, because it could be an interfered subject in the course of public justice by enforcing private interests, becoming even selfish.
Another meaningful problem present in the current Spanish criminal law in relation to the victim’s position in the process arises after giving judgment. It is clear that the victim could have a main position during the process, but the problem is situated in a later stage, when the victims are totally absent and unable to be heard before a judge’s decision on the granting of benefits in the execution or the convict prison, and did not even have the right to know the status of the indicted. The victim passes from be the core of the process to not participate in it, what results in a change for the worse very harmful, it does not guarantee the rights of victims to participate in the implementation phase of the penalties, which is still part of process. In addition, the victim has no involvement nor protect in the process when, once the offender is serving his sentence comes in free with risk of recidivism.
On the other hand, over the Dutch system, since the introduction of the Victim Impact Statement, there have been some issues related to the victim’s position in criminal proceedings, which can be reduced to two debates on their use: the first one related to the "the effects on sentences" and the second one regarding to the "to their effectiveness".
The first debate manages with the effects on sentencing, raising diverse open questions. Starting with the former is important to indicate that the use of the victim impact statement will lead to harsher sentences, due to the intention of the victims in maximize the sentence severity (being even more punitive than judges and magistrates, but not always, because sometimes many victims to prefer restorative options). It have to be said that it depends of crime (minor or sever), and also the victim’s behavior. In addition, it happened that the actions of organisations representing their particular interests suggest a higher level of punitivity. This place to the offenders in a disadvantaged place due to the use of the victim’s harm as their primary criterion, which may be lead to inconsistency. Also, the possible differences in personality characteristics play a role during the process. As some scholars say, "People vary in the extent they are vengeful and this general notion applies to victims as well. It is clear that if the victim's opinion was directly translated into the sentence the principle of consistency would be threatened" [3] .
Taking into account the above, although the judgments that are influenced by a victim impact statement are statistically more severe, it is true that the victims do not seek to influence the judgment but be heard publicly in court. Even concerning the victim statements of opinion, evidence of victim impact on sentencing has yet to be shown.
Anyway, for some victims, the main reason for participate in the trial is try to influence the sentence of the offender. More or less 50% of the victims look to participate in order to raise the severity of the punishment; 33 % for therapeutic reasons and there is a report which shows that "59% of Dutch victims would welcome the opportunity to submit a victim impact statement, even if it did not have any impact on the sentence. However, if it would have an influence, this percentage increased to 84%" [4] .
The second debate, regarding to the effectiveness, took different branches of personality focusing on the therapeutic effects of victim impact statements, questioning about the victim satisfaction and dissatisfaction or the reduction of victim’s anger and anxiety.
It is obvious that the victim satisfaction could be told as an outcome measure, but it is not so easy to use in this way, because the construct validity of satisfaction is questionable (is a subjective measure, influenced by expectations and also different depending on the victim, the knowledge, the crime) and because satisfaction has shown to be a poor measure of therapeutic benefit. It is true that sometimes, victim’s expectations may lead to some dissatisfaction if it is not achieve the pretend result, but it is really too that the majority of victims describe the victim impact statement as helpful, and report them high levels of satisfaction due to the intervention.
In connection with the above, the Reduction of anger and anxiety through victim impact is a tricky issue, insomuch as the Courts are not the place to begin a therapeutic process itself to help victims (lacking of an environment plenty of confidence and safety).
But even having said that, it has been demonstrated that allowing victims the possibility of participating in their own case reduces legal lack of the victim’s protagonism and helps to obtain a higher sense of procedural justice; all this resulting in a significant diminishing of the anger and anxiety. "This is also evidenced by evaluations of restorative justice programmes in which high levels of perceived justice coincide with stark reductions of anger (Strang, 2002). This reduction of anger, which may also be seen as a process of forgiveness (Worthington & Scherer, 2004) is also shown to have a beneficial effect on victims‟ mental health (Karremans et al, 2003)" [5] .
Finally, we should add that the choice to handle a victim impact statement can be viewed as a method of giving victims control over their own recovery and an avenue for action (see Pemberton, 2008b), having a low risk of developing post-traumatic stress disorder. So, "On theoretical grounds, therefore, there is reason to believe that victim impact statements may reduce victims‟ anxiety and anger. We should note that in both instances this reduction of anger and anxiety may be achieved without placing undue pressure on other criminal justice principles, as neither achieving a sense of procedural justice and/ or a perception of control necessitates victim".
Strengths of both systems.
As we have seen in the preceding pages, the two systems are characterized by reflecting the changes that have taken place in the field of victimology in recent years, but each in its own way. Each has its own pros and cons, which are what makes the difference despite having a common goal, that is, introduce the figure of the victim in criminal proceedings.
The triangular system used in Spain unifies their strengths in the fact that the figure of the victim was consolidated as an independent in the process, with a third party visible in the process and able to start collaborating from the beginning of the process. That independence also does not mean that the victim will be separate to aid that the prosecution can bring in the process to help the victim, but complement forming a perfect tandem in the matching point between them.
The figure of the victim in Spanish law is regulated in several types of rules, starting with the constitution. Aware of the importance of the victim in the resolution of a process, it is covered by a set of rules that prevent appropriate action to lose its role in developing trial.Therefore, the greatest qualities of the Spanish system in relation to victims can be listed in the following:
First, "the prohibition of helplessness", which is framed as an essential right which guarantee the effective protection of the victim.
Second, "the free access of the parties to the process," which guarantees the popular action and prosecution, both supported by the essential right described above and is situated in the constitution.
Third, "the offer of recourse", which includes the right to appear in the proceedings without quarrel, to appoint lawyer or request a public defender, the right to bring a civil action and the right to request the necessary assistance to be victim.
Fourth, "the right to notification of court decisions" for not separating the victim of such a process in which their interests are involved.
Fifth, "the use of the evidence provided by law," evidence may boost activity towards the interests of the victim.
Lastly, we need to note that apart from holding the victim's right to be involved in the process, it is also necessary to respect the proper public trial and that the trial take place without undue delay.
As we can see, the legal regulation of the figure of the victims and its importance as one of the three pillars of the process entails a comprehensive legal regulation, making it a very protected figure.
In order to analyze the strengths of the implementation of Victim Impact Statement, we should enumerate at least five features. In contrast to the Spanish system, in the Dutch one the victim gets involved less but with a more direct role, which entails:
First. The Victim Impact Statement expresses the victim’s harm, and this will be used as a tool for the courts to grant balanced compensations to victims. This point shows a difference between common law and civil law jurisdictions due to the fact that civil ones do not allow to the victims to have the opportunity to file for compensation in the capacity of an injured party (being this function not very controversial). It is criticized by some authors that, the position of the victim during a criminal process using the victim impact statement make the trial becomes what would be a civil suit As we can see in selected article, "law jurisdictions, instruments with a similar focus have been in place for a long time. The scholars critical of enlarging the position of the victim within the criminal justice system concur that, as Ashworth (2002) states, 'the victim's legitimate interest is in compensation and reparation. In essence, regarding this purpose, the victim impact statements fulfil a tort law, rather than a criminal law function. The harm caused is therefore a natural and necessary component of the justice procedure (e.g. Duff, 2003)" [6] .
Second. We can point out as a strength that, the implementation of the Victim impact Statement tends to a reduction of secondary victimisation. As we explain in the first pages, when the victims feel not being a part of the proceedings or with an insubstantial role in trial, it turns into the primary source of dissatisfaction of victims. This is recognized in the following assertions, "Social acknowledgement of the harm done to victims is a protective factor in the development of traumatic complaints (Maercker and Muller, 2004) and recent research has shown acknowledgement to be an important criterion for victims' assessment of sentencing outcomes (Orth, 2003)" [7] .
Third. It is clear that the victim impact statement is a tool which provides the opportunity to have "voice" in the Court, and this single action have much impact on the victim. For example, it is demonstrated that this role in the proceedings enhances the legitimacy of the victims and the acceptance of its outcome, being this fact more important than the effective influence on the sentence.
Finally, despite the above, it is logical that the intention of the victims with the victim impact statement remains somewhat influence the sentencing.
Main similarities between the systems. Common aims.
Having in mind that both systems, even being different each other, works on the same line trying to find a more prominent role of the victim in the criminal process, is possible to find some points in common.
Before every fact or point in common, it is very important to say that both represents the right of victims to be heard during the proceedings, being an undeniable right to them.
The first remarkable fact that is a guideline for both systems could be described as the intention to provide real information to the sentencing judge about the true harm of the crime suffered by victim. Both, the Victim Impact Statement and being a victim as a third party in a trial have an aim, which is that. The given information helps to assist the court in reaching decisions on the appropriate penalty for the offender.
The second one lies in that either have the approach to provide a therapeutic assistance for the victims, in order to help victims to be recovered from the harm caused by the crimes committed against them.
The third fact that both systems encompasses is the right to be informed. It is proved that the victim wishes to receive information about ongoing and decisions that may affect them, and their absence is a cause of secondary victimization to which I have referred.
The fourth common aim that those systems have in common involves an effect of its implementation, because with the victim’s active collaboration it is possible to educate the defendant about the full consequences of his acts which constitute a crime, inducing the understanding of the harm caused and accepting his own responsibilities.
Finally, the fifth fact that we can highlight is the logical result of adding to the process to one of the protagonists in the crime, the victim, what contributes to a fairness process of sentencing, by ensuring that all relevant parties are heard.
Conclusion
As we had analyzed, both systems tends to reach almost the same aims but using different ways. With the commissioning of the two systems, the victims en each one now enjoy a number of rights that are new in many cases, but yet somehow remain orphans still needing other undeveloped rights to be reaching full development of victimology. Finally, I would like to conclude by sharing an opinion on how it should be a complete and developed figure of the victim in criminal law irrespective of the country in which we are, or the method used. As Antony Pemberton and Sandra Reynaers, the statute of the victim should contain the following rights:
"A right to respect and recognition at all stages of the criminal proceedings;
A right to receive information and information about the progress of the case;
A right to provide information to officials responsible for decisions relating to the offender;
A right to have legal advice available, regardless of the victim’s means;
A right to protection, for victims' privacy and their physical safety;
A right to compensation, from the offender and the State;
A right to receive victim support;
The duty for governments to promote mediation in criminal cases for offences which it considers appropriate for this sort of measure;
The duty for the State to foster, develop and improve cooperation with foreign States in cases of cross border victimisation in order to facilitate more effective protection of victims' interests in criminal proceedings" [8] .

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