The victim’s position in criminal procedure

Over the centuries the victim’s position in criminal procedure has underwent similar changes in both the continental and the Anglo-Saxon justice system.

With the decline of the victim’s previously active role beginning from the 19th century, international conventions, the constitutions and other national standards of reference focused on the offender’s person and have sought to defend him/her from the wantonness of the justice system. In parallel, the rights and interests of the victims were driven to the background and it was only from the end of the 1960s that they were given more emphasis again.

Advocating victims’ rights came to the forefront in both continental and Anglo-Saxon common law in the 1960–70s with the advent of the victims’

movements and with the rise of efforts aiming to improve victims’ situation and the position in procedural law and to strengthen their constitutional rights.

Some trends in criminology and the appearance of victimology as a separate field have especially contributed to the proliferation of views urging the settling of victims’ position in legal procedures.

Nevertheless, both types of procedures – the competing/adversary Anglo-Saxon and the continental formal ones – can hardly tolerate the victims’

participation in criminal procedure. Continental civil law, however, provides somewhat more space for endowing the victim with powers/authority, given its emphasis on formality. In contrast, in the adversary Anglo-Saxon system, which involves a dispute between the prosecutor and the offender or the defence,

the victim can clearly get a smaller role.¹ Yet it was the Anglo-Saxon countries that first introduced the so-called Victim Personal Statement or Victim Impact Statement, a new legal tool allowing more active, though seemingly formal, involvement of the victim. Providing more substantial participation in criminal justice proceedings, this tool allows victims to express how the crime has affected them, talk about their feelings, and in some cases about the punishment that they feel appropriate. The victim statement can have two goals: first, to provide information that the judge can take into consideration when deciding about the punishment; second, to help the victim deal with what has happened, thus pursuing a therapeutic goal.²

In addition, even if he/she does not appear as a private party in the penal procedure, the injured party may launch a lawsuit for compensation, where certain conclusions reached in the criminal suit can be used. In the Anglo-Saxon system there is no possibility for filing claims under private law. English criminal courts are required to consider obliging the offender to pay compensation for the victim and his/her family, however, this happens ex officio and not on the basis of the victim’s private law claim. Although the Sentencing Guidelines in the United States also contain provisions on compensation for the victim but again, the victim does not submit a private law claim but compensation can be provided ex officio.³ Analysing the Anglo-Saxon legal context, William T. Pizzi highlighted some features, for instance that the prosecutor is not supposed to represent the victim, the interests of the prosecutor and the victim often do not overlap, the victim concentrates on his/her case, while the prosecutor takes into consideration other circumstances as well, such as the chances of success for the procedure or even political considerations (which is due to the fact that the prosecutor’s position is based on selection). Therefore if the prosecutor feels that he/she has little resources, then he/she may resort to plea bargaining, while the victim may completely disagree with it. This may easily lead to the victim’s frustration about remaining invisible in the procedure. From this perspective it seems that the victim is in an even more disadvantageous situation than in continental procedures.⁴

1 Bárd, Károly: Kit illet a tisztességes eljárás? [Whom is Due Process Due?] In: Gellér, Balázs (ed.): Györgyi Kálmán ünnepi kötet. Budapest, KJK-Kerszöv, 2004. 31–51.

2 James Chalmers – Peter Duff – Fiona Leverick: Victim Impact Statement: Can Work, Do Work (For Those Who Bother to Make Them). Criminal Law Review, May (2007) 360–379.

3 Bárd op. cit.

4 William T. Pizzi: Victims’ Rights: Rethinking Our ‘Adversary System’. Utah Law Review (1999) 349–368.

Reconciliation and Victims’ Rights… 173

Based on the above it seems that the Anglo-Saxon system does not ensure additional rights for crime victims as compared to continental rights, on the contrary, given the competition between the parties the victim has limited opportunity to assert his/her interests. Nevertheless – maybe precisely to resolve these problems – the Anglo-Saxon system seems to be much more open and inclusive with respect to institutions related to victims and allows more opportunities for applying new tools. The spreading of mediation and the restorative approach illustrates that a measure rooted more in Native American or Maori, rather than in Anglo-Saxon traditions, can still work effectively in the Anglo-Saxon justice system. One of the best means to improve the victim’s situation is the extensive use of restorative techniques.

The interests of the offender and the victim hardly ever coincide either.⁵ Another valuable feature of the methods in question is that, in addition to supporting victims’ claims, they also facilitate the reintegration of offenders by promoting confrontation with the pain they caused, thus promoting retainment, as opposed to a prolonged and impersonal, unemotional penal procedure that alienates them from their actions.

In his book – Due Process and Victims’ Rights – Kent Roach takes a critical stance to the changes that have taken place in the past two decades in connection with victims’ entitlements. He claims that a due process and victims’ rights often clash and, as a result, claims for victims’ rights are pushed to the background.

In Roach’s opinion penal procedures in the future will depend on whether there will be a room for the development of victims’ rights in the context of the dominance of punitive approaches, and if they will prompt the strengthening of crime prevention and restorative justice. The author believes that a new, victim-based model of criminal justice is developing as an alternative to Herbert Packer’s bipolar model of the due process and the crime control.⁶

5 Erdei, Árpád: A sértett a büntető eljárásjog szemüvegén át. [The victim in the mirror of the penal procedure] In: Barabás, A. Tünde (ed.): Tiszteletkötet Irk Ferenc professzor 70.

születésnapjára. Budapest, OKRI, 2012. 107–115.

6 Kent Roach: Due Process and Victims’ Rights: The New Law and Politics of Criminal Justice.

Toronto, University of Toronto Press, 1999. 391.

2. Penal procedure in the continent – The Hungarian