Victim’s Rights in Criminal Procedure: A Comprehensive Analysis
Victim and Criminal Procedural Law
These rules aim to mitigate the psychological impact on victims interacting with the criminal justice system. They reduce the feelings of helplessness, fear, and despondency that can lead to mental health issues. Procedural provisions focus on recognizing victims’ rights, participation, and protection.
Legislative Developments
Instruments like the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, the 1985 Council of Europe recommendation, and the 2001 Council Framework Decision have driven the development of victim-protective criminal procedural norms. Key legislation includes:
- Organic Law 19/1994: Protection of witnesses and experts in criminal cases.
- Law 35/1995: Aid and assistance to victims of violent intentional crimes and crimes against sexual freedom.
- Organic Law 14/1999: Amends the Criminal Code, introducing measures to protect victims of abuse and ensure communication with them.
- Law 27/2003: Regulates protection orders for victims of domestic violence.
- Act 1/2004: Comprehensive protection measures for gender violence.
- Organic Law 8/2002: Regulates speedy trial procedures.
This legislation strengthens victim rights, including the right to information and participation in criminal proceedings. It enables simultaneous criminal and civil liability proceedings and changes the system of measures based on victimology.
Recognition of the Right to Information
The obligation to inform victims has expanded to ensure they are informed of procedural measures affecting their safety. This includes informing the victim about the accused’s legal situation, the scope and validity of precautionary measures, and the aggressor’s penitentiary status. Judicial police and courts have specific information duties.
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Victims can initiate proceedings by filing a police report or complaint. The offended party, who is the victim in the strict sense, can bring a private prosecution. This participation is facilitated even in simplified procedures. Minors and their legal representatives can also participate as private plaintiffs.
Mechanisms of Protection for the Victim
Measures to protect witnesses include preserving anonymity, preventing visual identification, and providing police protection. Questioning of the victim must respect their personal situation, rights, and dignity. The judge can impose precautionary measures, such as prohibiting the accused from residing in or approaching certain areas or communicating with specific individuals. For minors, measures include allowing expert declarations in the presence of the prosecution and recording statements to minimize emotional impact. Advance testimonial practices are available for witnesses residing abroad.
Victim and Criminal Sanctions System
A) Stay of Execution
This requires that the prison sentence not exceed two years, the beneficiary is the primary offender, and civil liabilities have been met.
B) Replacement of Imprisonment
Imprisonment can be replaced with community service if the sentence doesn’t exceed one year (or exceptionally, two years), and the defendant’s circumstances make it advisable, particularly if they’ve made efforts to repair the damage.
C) Design of Criminal Penalties
Penalties include prohibitions on returning to the crime scene or approaching the victim. The procedure extends the length of prohibitions. Suspended visitation, communication, and accommodation penalties may not exceed ten years for a felony, five for a misdemeanor, or six months for specific offenses. These sanctions are optional, based on the seriousness of the facts or the offender’s risk.
D) Criminal Enforcement
Progress to third-grade prison treatment requires serving half the sentence (if exceeding five years), paying civil liabilities, restoring stolen goods, and repairing damage. For conditional release, the offender must be in third-grade treatment, have served three-quarters of the sentence, have good behavior, and have a favorable prognosis for social reintegration. Repairing the damage to the victim is a key requirement. Exceptional freedom can be granted for those participating in restorative mediation programs.
5. Liability Arising Out of Crime
This determines the obligation to repair the damage caused by the offense. Mitigation of sentence is possible if the offender repairs the damage. Installment payments are allowed to facilitate fulfillment of responsibilities. Repair of damage and compensation are prioritized. Dismissal is possible through repair or conciliation between the victim and offender.