2 ‘Right to revenge’

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where the Court gave prevalence to the interest of the defense. This is very relevant for the relationship between the interest of the victims and of the accused, and will be further addressed in Chapter IV.

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revenge” or to an actio popularis”.¹³⁰ Furthermore, it was pointed out that the right to have someone prosecuted or punished for a criminal act was not per se a right guaranteed by the Convention:

“the right to have third parties prosecuted or sentenced for a criminal offence cannot be asserted independently: it must be indissociable from the victim's exercise of a right to bring civil proceedings in domestic law, even if only to secure symbolic reparation or to protect a civil right such as the right to a ‘good reputation’.”¹³¹

As a result, the Court held that on this point the application was incompatible with the Convention.

This new approach of the Court was confirmed by judgments in other cases. For example, the same reasoning led to a different outcome in the case of Gorou v. Greece¹³². In this case the applicant, being an alleged victim of insult and defamation, sought an appeal by the prosecutor in the criminal proceedings, but was refused. What was taken into account by the Court in this case was that the applicant had asked for a symbolic compensation in the approximate amount of three euros and additionally claimed to be a victim of defamation. These circumstances were sufficient for the Court to hold that the case fell in the scope of Article 6 of the Convention, because a (however symbolic) reparation was sought and the case concerned the ‘right to a good reputation’.

In the light of the circumstances of the case and the rather narrow requirements for the victims’ right to bring civil proceedings, this judgment of the Court is leaving sufficient space for the conclusion that in future the scope of Article 6 in the part of the

“determining the civil rights and obligations” will be construed in a broad fashion to

130 Ibid, paragraph 70 of the judgment

131 Ibid

132 Application No 12686/03, judgment of March 20^th 2009

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encompass the right of the victim to approach the courts. The future developments in the jurisprudence of the court may lead towards a bigger number of cases where the victims’

request to bring proceedings would not be practically strictly limited by the additional requirements of an associated right. Thus, it is probable that the very strict position of the court that there is no for crime victims to have the perpetrator punished may potentially be softened in practice by the very wide approach of the Court in determining the threshold for entering the ambit of civil rights and obligations.

III.3 Conclusion

From the examples from the jurisprudence of the Court, it is evident that it has moved towards the recognition of the needs and interests of victims of crime on several levels. One of those is the acknowledged need for prevention of the primary victimization, or in other words, the need for protection of the individuals within the jurisprudence of the state from criminal acts that would represent infringements of rights guaranteed by the Convention. This was elaborated in Chapter II under the positive obligations of the states. However, in the previously explained distinction of emerging rights of victims of crime given by Doak¹³³, the right to protection, apart form the element of protection from primary victimization or protection from becoming a victim, includes another element. This is the emerging right to protection from secondary victimization. It can be argued that the examples of the jurisprudence of the Court confirm this emerging rights in light of the taking into account the interests of vulnerable victims and witnesses. This other level of the inclusion of the victim is more directly connected to the position of the victim in the criminal process. Namely, the Doorson

133 See Chapter I, section 1.

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judgment showed that the interests of the victims (and their rights protected by the substantive provisions of the convention) are a factor that necessarily has to be considered in the framework of the criminal process itself.

However, what the case – law of the Court has not to this point established is the concrete contents of the status of the victims of crime in the criminal proceedings and their specific rights in that context. This may be looked at from several points of view.

The recent cases regarding the non-existent ‘right to revenge’ where only seeking a symbolic reparation or a claim of the right to good reputation is sufficient for the case to enter the scope of Article 6 in terms of the ‘determination of the civil rights and obligations’, may appear as softening the stand of the Court towards bringing a closer possibility for the victims to approach the courts with their claims. However, from the point of view of the status of the victim in the course of the criminal proceedings, the Court’s jurisprudence does not recognize a right to participation in the trial. It is left to the member states to organize their criminal justice systems in regard to this issue. Due to the differences in the legal orders of the member states it can be argued that the specific content of the victim participation in the criminal proceedings are not very likely to be detailed or ‘prescribed’ by the future judgments of the Court. At this point of the developments of the standards on the protection of the interests of the victims of crime, a future establishing of firm rules on the form of participation of the victims appears to be of small probability.

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CHAPTER IV: HOW THE EMERGING VICTIMS’ RIGHTS AFFECT