3.1.8 Violation of rights of victims or witnesses during legal proceedings Condensed: Judicial and administrative mechanisms should be established and strengthened to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. States are required to take measures to minimize inconvenience to victims and protect their privacy when necessary. Victims should be accorded sufficient information on the progress of criminal proceedings which should be finalized without delay. Victims should be allowed to participate and give input in the proceedings. Witnesses have a right to be protected from distress or intimidation during proceedings. States must ensure the safety of victims as well as that of their families and witnesses on their behalf, from intimidation and retaliation.
Comprehensive: Victims According to the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power:[1] Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.
According to the same declaration, a victim is a person who has ‘individually or collectively … suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power’.[2]
Judicial and administrative mechanisms should be established and strengthened to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible.[3]
States are required to take ‘measures to minimize inconvenience to victims [and] protect their privacy, when necessary’.[4] (See *lack of appropriate safeguards for groups with specific needs in all legal and administrative proceedings*). Legal proceedings related to trafficking should be confidential.[5]
Victims should be accorded sufficient information on the progress of criminal proceedings which should be finalized without delay, especially where serious offences are involved.[6] According to a UN report:[7] Victims and witnesses may require special services and support, both material and psychological. Judges may, whenever possible, encourage such support by, for example, arranging for the following in their jurisdiction:
Separate waiting areas for the defence and for witnesses for the prosecution, including victims;
Interpreter and translator services for victims and witnesses while they are in the courthouse;
An “on-call” system to minimize unnecessary trips to court;
The expeditious return of evidence;
The availability of special transportation and protection to and from the courthouse when the safety of witnesses is a consideration;
Informing the public of the importance of supporting the participation of victims and witnesses in court proceedings;
Child-care services for victims and witnesses;
Crisis intervention, counselling and other support services for victims;
Ensuring that the victim is not charged for rape examinations or other costs of collecting and preserving evidence;
Establishing fair and appropriate witness fees.
Victims should be allowed to participate in the proceedings:[8] Wherever possible under the law, victims should be allowed to participate and, where appropriate, to give input through the prosecutor or to testify in all stages of judicial proceedings, including:
Pre-trial release or bail hearings;
The scheduling of court proceedings;
Continuances or delays (judges should state on the record the reason for granting a continuance);
Plea and sentence negotiations, where these are conducted;
Sentencing;
Victim-offender mediation, where appropriate.
Victim impact statements prior to sentencing are encouraged.[9] Witnesses Witnesses have a right to be protected from distress or intimidation during proceedings. Thus, for example, legal counsel may be assigned to an accused person against his or her wishes ‘where this is necessary to protect vulnerable witnesses from further distress or intimidation if they were to be questioned by the accused’.[10] (See *defence counsel of choice/right to defend oneself*).
States must ensure the safety of victims ‘as well as that of their families and witnesses on their behalf, from intimidation and retaliation’.[11] Article 24 of the United Nations Convention against Transnational Organized Crime provides that States should ‘provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings’ including by ‘[p]roviding evidentiary rules to permit witness testimony to be given in a manner that ensures the safety of the witness, such as permitting testimony to be given through the use of communications technology such as video links or other adequate means.’ This applies also to victims ‘insofar as they are witnesses’.[12] Addresses of victims and witnesses should be protected where need for preventing retaliation or intimidation.[13]
In Campbell v Jamaica, the HRC held that ‘the detention of witnesses in view of obtaining their testimony is an exceptional measure, which must be regulated by strict criteria in law and in practice.’[14]
Additional references LL Lamborn ‘The United Nations Declaration on Victims: Incorporating abuse of power’ (1987) 19 Rutgers Law Journal 58-87 United Nations Human rights in the administration of justice: A manual on human rights for judges, prosecutors and lawyers, Professional training series No 9 (2003)
[1] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (UNGA 1985) Annex art 4. See also Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa s P. [2] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Annex art 1. [3] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Annex art 5. [4] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Annex art 6(d). See also See also CoE Recommendation on the Position of Victims. [5] Palermo Protocol art 6. [6] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Annex art 6(e). See also CoE Recommendation on the Position of Victims. [7] UNODCCP Handbook on justice for victims (1999) 70. [8] UNODCCP Handbook on justice for victims (1999) 70-71. [9] UNODCCP Handbook on justice for victims (1999) 71. [10] HRC General Comment 32 para 37. [11] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Annex art 6(d). See also United Nations Convention against Transnational Organized Crime art 25(1). [12] Art 24(4). [13] UNODCCP Handbook on justice for victims (1999) 71. [14]Campbell v Jamaica communication 307/1988 (HRC 1993) para 2.3.
Condensed:
Judicial and administrative mechanisms should be established and strengthened to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. States are required to take measures to minimize inconvenience to victims and protect their privacy when necessary. Victims should be accorded sufficient information on the progress of criminal proceedings which should be finalized without delay. Victims should be allowed to participate and give input in the proceedings. Witnesses have a right to be protected from distress or intimidation during proceedings. States must ensure the safety of victims as well as that of their families and witnesses on their behalf, from intimidation and retaliation.
Comprehensive:
Victims
According to the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power:[1]
Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.
According to the same declaration, a victim is a person who has ‘individually or collectively … suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within Member States, including those laws proscribing criminal abuse of power’.[2]
Judicial and administrative mechanisms should be established and strengthened to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible.[3]
States are required to take ‘measures to minimize inconvenience to victims [and] protect their privacy, when necessary’.[4] (See *lack of appropriate safeguards for groups with specific needs in all legal and administrative proceedings*). Legal proceedings related to trafficking should be confidential.[5]
Victims should be accorded sufficient information on the progress of criminal proceedings which should be finalized without delay, especially where serious offences are involved.[6] According to a UN report:[7]
Victims and witnesses may require special services and support, both material and psychological. Judges may, whenever possible, encourage such support by, for example, arranging for the following in their jurisdiction:
Victims should be allowed to participate in the proceedings:[8]
Wherever possible under the law, victims should be allowed to participate and, where appropriate, to give input through the prosecutor or to testify in all stages of judicial proceedings, including:
- Pre-trial release or bail hearings;
- The scheduling of court proceedings;
- Continuances or delays (judges should state on the record the reason for granting a continuance);
- Plea and sentence negotiations, where these are conducted;
- Sentencing;
- Victim-offender mediation, where appropriate.
Victim impact statements prior to sentencing are encouraged.[9]Witnesses
Witnesses have a right to be protected from distress or intimidation during proceedings. Thus, for example, legal counsel may be assigned to an accused person against his or her wishes ‘where this is necessary to protect vulnerable witnesses from further distress or intimidation if they were to be questioned by the accused’.[10] (See *defence counsel of choice/right to defend oneself*).
States must ensure the safety of victims ‘as well as that of their families and witnesses on their behalf, from intimidation and retaliation’.[11] Article 24 of the United Nations Convention against Transnational Organized Crime provides that States should ‘provide effective protection from potential retaliation or intimidation for witnesses in criminal proceedings’ including by ‘[p]roviding evidentiary rules to permit witness testimony to be given in a manner that ensures the safety of the witness, such as permitting testimony to be given through the use of communications technology such as video links or other adequate means.’ This applies also to victims ‘insofar as they are witnesses’.[12] Addresses of victims and witnesses should be protected where need for preventing retaliation or intimidation.[13]
In Campbell v Jamaica, the HRC held that ‘the detention of witnesses in view of obtaining their testimony is an exceptional measure, which must be regulated by strict criteria in law and in practice.’[14]
Additional references
LL Lamborn ‘The United Nations Declaration on Victims: Incorporating abuse of power’ (1987) 19 Rutgers Law Journal 58-87
United Nations Human rights in the administration of justice: A manual on human rights for judges, prosecutors and lawyers, Professional training series No 9 (2003)
[1] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (UNGA 1985) Annex art 4. See also Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa s P.
[2] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Annex art 1.
[3] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Annex art 5.
[4] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Annex art 6(d). See also See also CoE Recommendation on the Position of Victims.
[5] Palermo Protocol art 6.
[6] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Annex art 6(e). See also CoE Recommendation on the Position of Victims.
[7] UNODCCP Handbook on justice for victims (1999) 70.
[8] UNODCCP Handbook on justice for victims (1999) 70-71.
[9] UNODCCP Handbook on justice for victims (1999) 71.
[10] HRC General Comment 32 para 37.
[11] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Annex art 6(d). See also United Nations Convention against Transnational Organized Crime art 25(1).
[12] Art 24(4).
[13] UNODCCP Handbook on justice for victims (1999) 71.
[14]Campbell v Jamaica communication 307/1988 (HRC 1993) para 2.3.