The Role of the Victim in the Criminal Process: A Literature Review - 1989 to 1999

4. Victims’ Rights Around the World (cont'd)

4. Victims’ Rights Around the World (cont'd)

4.2 Discussion (cont'd)

4.2.2 The European Experience

The literature provides an abundance of descriptive material outlining the role of the victim in European criminal process (Jousten, 1987; Kaiser, Kury, & Albrecht, 1991; Jousten, 1994; Maguire & Shapland, 1997). The historical development of victims’ rights in Europe follows a similar pattern to that found in North America:

Internationally, the "victims’ movement" has been in serious motion for less than 20 years, although there has been isolated earlier developments (such as the introduction of state compensation for victims of violent crime in Britain and New Zealand in the 1960s). Indeed, in most Western countries, the real thrust has occurred only over the past 10 years. In Europe, victims receive a considerable boost from a number of important initiatives in the mid-1980s, including a Convention and two important Recommendations by the Council of Europe in 1983, 1985, 1987 (on, respectively, state compensation, the position of the victim in the criminal justice system, and assistance to victims). Before this, in only three countries, the United Kingdom, Germany and the Netherlands — had victims’ issues achieved any prominence. More recently, many former Eastern Bloc and Third World countries have begun to give serious attention to victims, a key impetus deriving from the United Nations Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Authority. The reasons for the unprecedented growth of interest in crime victims around the world are not totally clear, but its primary causes are related to public reactions against increasing crime rates, combined with increasingly impersonal, uncaring, and ineffective criminal justice systems and growing awareness of the serious impact of crime on people. (Maguire & Shapland, 1997:212)

The unique feature of the European experience has been the existence of four models for victim participation in the criminal process:

  1. The right to prosecute privately for any offence in theory (e.g., England, Finland and Cyprus);
  2. The right to privately prosecute for petty or minor offences (e.g., Austria, Denmark, Germany, Poland and others);
  3. The right to secondary prosecution if the public prosecutor declines to proceed (e.g., Austria, Norway and Sweden);
  4. The right to serve as a subsidiary prosecutor (to assist the prosecutor) (e.g., Austria, Germany, Poland, Sweden and others).

In addition, most jurisdictions provide for some form of appellate review or administrative review to question the decision of a prosecutor not to proceed with a case (Jousten, 1987; Spinellis, 1997). Even in Russia the victim is actively involved by being allowed to participate in the hearing and in argument; observers have noted that Russian victims often interrupt testimony with their comments and questions (Boylan, 1998).

The model for victim participation in Europe is found in the French partie civile procedure. This is a mechanism whereby the victim can attach his/her civil claim onto an existing criminal trial and then participate fully in the hearing. This process was created as part of the original Napoleonic Code and therefore vestiges of this process can be found in virtually every other European jurisdiction. The basic components of the partie civile are:

His [the victims] appearance in the criminal trial is by no means a formality, His rights are summarized… as follows:

… the ‘partie civile’ has the following rights at the trial: to be legally represented; to suggest questions to be put to the accused or witnesses; to give evidence without taking the oath; to submit a case which the court must answer; at the conclusion of the evidence to give his views thereon (his ‘summing up’ being before that of the prosecution and defence); in the cour d’assises, to address the court on the civil issues outwith[sic] the presence of the jury, i.e., after the criminal aspect of the case has been decided. If the case is investigated by a juge d’instruction, the ‘partie civile’ may refuse to be questioned except in the presence of his lawyer (who has a right of access to the ‘dossier’ recording the judge’s investigations); comment on a request by the accused to be released from pre-trial custody; ask for expert evidence to be obtained; appeal certain decisions of the juge d’instruction, of which he must be given notice and finally has right of audience before the chambre d’accusation when such appeals are being considered, and when the chambre is deciding on the question of committal for trial.’. (Lord Cameron of Lochbroom, 1991:329)

Related to the partie civile process is the German nebenklage process. For designated categories of offences (primarily sexual assault), the victim can become a secondary prosecutor with legal representation and full participation in the proceedings. This process does not require the attachment of an accompanying civil claim, and the participation by the victim prevents the case from being withdrawn by public prosecutors. Suprisingly, one report found that few victims take the opportunity to participate in this manner and sexual assault victims only participated in 19.2% of available cases (Pizzi & Perron, 1996). This is consistent with other evidence indicating that most European victims do not take the opportunity to fully participate in the proceedings despite the potential to do so (Jousten, 1987; Maguire & Shapland, 1997; Krainz, 1991).

In the 1990s a number of empirical studies were conducted in Germany to evaluate victim participation and satisfaction. As in North American studies, the empirical studies conducted in Germany indicate that victims do not simply act upon unduly punitive motivations and many are simply interested in proper compensation (Baurmann & Schadler, 1991; Kilchling, 1991). One of the more disturbing findings has been the failure to effectively implement victims’ rights. Not content with the subsidiary prosecutor protection, Germany enacted in 1986 the Victim Protection Act that, for all intents and purposes, is the German counterpart to North American Bills of Rights. A preliminary study revealed a uniform lack of knowledge about the various rights provided to victims, and professional resistance to the concept. Similar to findings in North American research, the study also revealed that the primary source of stress and anxiety for the victim is not the process itself but rather uncertainty about the process and a lack of information to explain the process (Kaiser, 1991). A more recent study confirmed a general state of ignorance amongst judicial officials about the legislation and the failure of judicial officials to educate and advise victims of their rights. The general thrust of this study is summarized as follows:

Successful implementation of the new laws has been, from the beginning, difficult to accomplish. One in every four judges and prosecutors indicated that the victim was ‘never’ advised of their rights, and almost half of the judges and prosecutors informed the victim only ‘when queried’, even though the law imposes such a duty on the public officials. The observance of the duty to advise and instruct an interested party such as the victim would contribute to more stringent protection of their rights. It sounds almost cynical that the majority of the judges and prosecutors stated that they had ‘simply forgotten’ to carry out their duty to instruct the victims, or found ‘no suitable opportunity’ to do so. This clearly indicates that the victim protection provisions are really not taken seriously by the major participants in the criminal justice process. And, of course, it follows that if victims are not even informed of their rights, then the opportunity to exercise their rights in general is limited or restricted. (Kury, Kaiser & Teske, 1994:77)

There has recently been an extensive review of the approach to victims’ rights in Poland (Bienkowska & Erez, 1991; Bienkowska, 1991; Erez & Bienkowska, 1993; Marek, 1996; Stefanowicz, 1992; Bronistowski, 1993). It has been stated that Poland is "one of the Eastern European countries mentioned as a haven for victims" (Bienkowska & Erez, 1991:217), but the available literature does not necessarily establish this jurisdiction as a model jurisdiction. As in other jurisdictions, Polish victims express dissatisfaction and a lack of knowledge of their various rights (Bienkowski & Erez, 1991; Stefanowicz, 1992). However, despite the low frequency of victim utilization of the right to be a subsidiary prosecutor or attach a civil claim to the criminal process, it appears that there is increased victim satisfaction when the victim becomes more involved in the process as a subsidiary prosecutor. The same study highlights the importance of ensuring that victims are made aware of these rights because the low utilization rate of a popular procedural mechanism can only be explained by ignorance of the existence of the right (Erez & Bienkowska, 1993).

Studies in the Netherlands confirm that victims have a strong need for information. Their perception of being treated fairly is contingent upon the proper receipt of information. Despite the enactment of guidelines with respect to victim notification and information, it is apparent that the guidelines are honoured more in the breach than in compliance. This could lead to unfortunate results as the study indicates that victims who did not receive requested information demonstrated a decrease in their perceived obligation to obey the law (Wemmers, 1995; Wemmers, Leeden & Steensma, 1995). A further study of victim satisfaction concluded that victims place greater importance on process than outcome and this may explain the decrease in victim satisfaction when information is not forthcoming. The Dutch victim seemed most interested in restitution and fair process and these factors were most directly related to victim satisfaction (Wemmers, 1996; Wemmers, 1994).

Finally, a recent study was conducted to assess compliance with Council of Europe Recommendation R(85) 11 regarding the furnishing of basic information to crime victims. A review of 22 jurisdictions assessed compliance with the duty to provide information about services, compensation and legal advice, the outcome of the police investigation, the final decision as to whether to prosecute and the date and place of the hearing. Even with respect to the date and place of the hearing, it was found that most victims are not being properly notified. Although states have succeeded in formally implementing the terms and conditions of the Council of Europe Recommendation, there has been little actual implementation. Beyond establishing a routine method of imparting information and creating educational leaflets, the report recommended as an effective solution the appointment of a victims’ advocate. The most important determinants of whether victims would receive relevant information is the attitude of the responsible public official and whether or not the victim has chosen to act as a secondary or subsidiary prosecutor (in which case, receipt of information is consistent and clear). The report concludes:

In general, victims of crime attach much importance to notification. Only if they know of their rights can they exercise them, and only if they are being informed of the decisions taken in their case are they safeguarded from becoming the "forgotten figure in criminal justice". The criminal justice process stands to gain from a successful transmission of information to the victim, for it can do much for the sympathy and support the public feels and provides to the system. That makes it particularly critical that in the practice of the countries involved in the comparative research on which this article is based, there are so many problems that need to be overcome to ensure adequate provision of information. The realization of the importance of information is there. The many pieces of legislation, guidelines and policy documents bear testimony to this. What is now needed is a commitment on the part of legal practitioners to put this realization into practice. (Brienen & Hoegen, 1998:185)

4.2.3 The Commonwealth Experience

In many ways the British experience is similar to the Canadian one; however, the small body of literature in England presents a rather cynical and unenthusiastic acceptance of victims’ rights. The United Kingdom entered one reservation to the U.N. Declaration and that was with respect to the principle that the victims’ views should be heard where appropriate (Ashworth, 1993). Commentators express doubt about the feasibility of making effective orders of reparation within the British criminal justice system (Wasik, 1999) and about the justifiability of introducing victim impact evidence at sentencing hearings (Ashworth, 1993). Doubt is also expressed as to whether the British practice of charge bargaining and sentencing discounts is at all consistent with the interests of victims (Fenwick, 1997(b)). The resistance to victim impact evidence compelled Professor Edna Erez to recently write a rejoinder entitled, "Who’s Afraid of the Big Bad Victim" (Erez, 1999), in which she reviewed the existing empirical evidence (none of which originated in England) and concluded that the "social science evidence clearly suggests that we have no reason to fear, and every reason to include, victims in the criminal justice process" (Erez, 1999:356).

The similarity between the British approach to participatory rights and the Canadian approach is that the British have articulated the rights in a non-enforceable instrument and the Provincial governments have articulated rights in a legislative context which appears virtually unenforceable. The governing British regime is described as follows:

At present, procedural and service rights for victims in the United Kingdom exist on a quasi- or non-legal basis since they are contained in various Home Office documents, including the Victim’s and Court’s Charters. Both Charters are part of the Citizen’s Charter, and therefore appear to share its obscure legal status. It may possibly have some quasi-legal status, but, as a White Paper, it clearly has no legal status. While the Victim’s and Court’s Charters tend to be couched in prescriptive and, in places, very precise language, they do not provide victims with legal remedies if their provisions are breached. However, a general grievance procedure is provided for victims under the 1996 version of the Victim’s Charter and in relation to mistakes in the conduct of court business under the Court’s Charter. Such complaints may now ultimately reach the Parliamentary Commissioner for Administration. (Fenwick, 1997:323)

In the scant literature available, commentators condemn this "quasi-legal" instrument for promulgating victims’ participatory rights (Miers, 1992; Fenwick, 1995; Fenwick, 1997(a)).

The Australian and New Zealand experiences appear consistent with the British experience in that there has been some professional resistance and a failure to enact an enforceable Bill of Rights. Although New Zealand introduced the practice of admitting victim impact statements as early as 1987 (Hall, 1992), nine of ten Australian jurisdictions resisted introducing legislation as late as 1994. However, Australia has produced a fair share of government reports in the 1990s (e.g., Community Law Reform Committee of the Australian Capital Territory, 1993; South Australian Attorney General’s Report on Victims and Criminal Justice, 1990), and much of the empirical evidence relating to victim participation and satisfaction is found in studies conducted in Australia.

The following studies were completed in Australia in the 1990s:

  1. Douglas, Laster and Inglis (1994): In Victoria (a jurisdiction without authority to admit victim impact statements), the standard police report was woefully deficient in terms of providing information about the circumstances of the victim; however, a review of sentencing practices did not reveal that harm to the victim was related to sentence outcome.
  2. Erez and Roeger (1995): In South Australia, the introduction of victim impact evidence did not affect sentence outcome both in terms of the proportion of prison sentences imposed and in terms of the average prison sentence. The introduction of victim impact evidence also did not lead to a discernible increase in compensation and restitution order.
  3. Erez, Roeger and Morgan (1997): In South Australia, a survey of 427 victims confirmed the importance of outcome for victim satisfaction, but did not suggest a clear relationship between "process control" (participatory rights) and satisfaction. The introduction of a victim impact statement had only a marginal effect on victim satisfaction.
  4. Erez and Roeger (1999): Interviews with legal professionals revealed the agreement of lawyers and judges that victim impact statements have not increased sentence severity, nor have they changed sentencing patterns in any significant fashion. Practitioners did not report any adverse effects of victim statements on court administration. The interviews revealed a "rich repertoire of strategies used by the legal profession" to maintain an illusion of objectivity and distance from the victim and his/her statement of harm. The authors concluded that "contemporary VIS practices in Australia and elsewhere are successful in maintaining the time-honoured tradition of excluding victims from criminal justice with a thin veneer of being part of it" (Erez & Roeger:235).
  5. Erez and Laster (1999): In a study of lawyers and judges in South Australia it was found that legal professionals support the concept of victim participation in principle, but they often ignored or minimized the importance of the victim impact statement and the harm experienced by the victims.

Government reports in the 1980s were critical of the admission of victim impact statements (Australian Law Reform Commission, 1987; Victorian Sentencing Committee, 1988) and it appears that professional resistance was the result in the 1990s (Mitchell, 1996). All state governments have enacted Bills of Rights contained in administrative guidelines and most have simply been published and distributed as a brochure. As in England, the only commentary on this administrative process of creating rights and entitlements has been critical:

Despite the issuing of DPP guide-lines and Declarations or Charter of Victims’ Rights, little real change has occurred as far as the role of victims is concerned, and they continue to lack any formal role in court proceedings. While the DPP guide-lines and the various Declarations or Charters of Victims’ Rights may be of symbolic value, they have proven to be largely ineffectual for five reasons. First, the DPP guide-lines provide that consideration for the victim be only one of many factors to be taken into account. Thus, it is always open to a prosecutor to justify a decision the victim may disagree with on the basis of the other considerations. Secondly, the ‘rights’ contained in the various Declarations and Charters are all dependent on victims being aware of these rights, and then making a request for the relevant right in question to be granted. There is no legal obligation on the police, the Prosecutions’ Department or the DPP to inform victims of these rights. Consequently, many victims remain ignorant of these rights, and even if aware, often have difficulty knowing how to exercise them. The third reason is that time constraints often prevent prosecutors from considering the victim, even if they are inclined to do so. Fourthly, even if a breach of the Rights or Guidelines can be proven, none provide for any judicial or administrative remedies. Finally, and most importantly, there is the largely hidden factor of bureaucratic resistance to change, particularly changes that add to the burden of a Department.

Andrew Kartmen summarizes the situation succinctly:

Criminal justice professionals have little incentive to act in accordance with the wishes and needs of victims, since they are not directly accountable to them, either legally or organizationally. Official priorities are to achieve high levels of productivity and to maintain smooth coordination with other components of the system. Victims are viewed as a resource to be drawn on, as needed, in the pursuit of organizational objectives that are usually only incidental to the satisfaction of the interests of the individual victims. (Garakawe, 1994:599–600)