Conflict between the Rights of Victim of a Crime and the Rights of the Accused under the German and Polish Justice System in the Context of the Case-law of European Courts

Cezary Kulesza

doi:10.17951/sil.2020.29.4.135-164

Abstract

<p>The purpose of this article is to examine conflict between the rights of victims of crimes and the rights of defendants under the German and Polish justice system in the context of the case-law of European courts. The analysis covers two possible occurrences of this conflict: 1) in the cognitive sphere, including proving the defendant’s guilt or innocence, and 2) in the decision-making sphere, including initiation of a criminal applying preventive measures, and sentencing. The main thesis of the article is that in the Polish and German criminal process granting the injured parties not only protective rights, but also the status of an active trial party, the risk of this conflict in both of the above-mentioned spheres of the criminal trial is greater than, e.g., in the Anglo-Saxon process where the victim of the crime acts only as a witness. However, the research cited in the article indicates that the extensive codex procedural rights of injured parties as procedural parties (law in books) are not accompanied by their effective use in procedural practice (law in action). Therefore, the protective rights of alleged vulnerable victims, particularly victims of sexual offences, pose a greater threat to the rights of a defendant which constitute the principle of fair trial in Article 6 of the European Convention on Human Rights. Considerations of this article confirm also the thesis that procedural rights of defendants still have priority over victims’ rights, which of course results from the inclusion of the former in the human rights catalog contained in the European Convention on Human Rights.</p>

Highlights

The rights of victims of crimes are inseparably connected with human rights
The protective rights of alleged vulnerable victims, victims of sexual offences, pose a greater threat to the rights of a defendant which constitute the principle of fair trial in Article 6 of the European Convention on Human Rights
Considerations of this article confirm the thesis that procedural rights of defendants still have priority over victims’ rights, which results from the inclusion of the former in the human rights catalog contained in the European Convention on Human Rights

Summary

INTRODUCTION

The rights of victims of crimes are inseparably connected with human rights. As a result of violation of their fundamental rights, victims have the right to justice, which in the context of a criminal process manifests itself as a necessity to grant them the following rights: the right to truth, the right to conviction and punishment of offenders as well as to compensation, and the right to access to the justice system. The status of injured persons, exercise both the rights of active procedural parties and protective rights It is possible for the conflict under discussion to arise both in the decision and cognitive aspect of criminal proceedings. It can be noted that on the one hand, the Polish definition of an injured party pursuant to Article 49 CCP is broader than the concept of a victim of crime (as assumed in acts of European law), since it is not restricted to natural persons, and on the other hand, by using the term of “directness of violation or threat to a legal interest”, it excludes some actual victims of crimes from this scope, e.g. in case of offences against the judiciary or documents. S THE CONFLICT BETWEEN THE PROCEDURAL RIGHTS OF A VICTIM C AND THE DEFENDANT’S RIGHTS IN THE DECISION-MAKING SPHERE

The victim’s impact on the initiation and conduct of criminal proceedings

The injured party and the procedural agreements

The case-law of the CJEU

Findings

Literature