Forensic significance of the victim’s personality in proceedings on child trafficking in the context of armed conflict

Victims of crime once played a significant role in the administration of criminal justice by actively participating as private prosecutors. However, over the centuries the victim was gradually marginalised from criminal trials in both common law and civil law jurisdictions and the victim’s role became mainly that of a witness. In the 1970s and 1980s, scholars and policy makers started challenging the diminished role of victims in criminal justice proceedings. This contributed to the adoption of the 1985 General Assembly UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (the ‘Declaration’) setting out basic principles for the treatment of victims.An international declaration requires translation into Member States’ national law to afford state nationals the rights contained in the instrument. However, over the course of the past decades some scholars and non-governmental organisations have suggested that Member States may not have implemented the basic principles contained in the Declaration sufficiently. The extent of the Declaration’s implementation in Member States’ national law is under-researched and not sufficiently understood. This thesis makes a new and original contribution to the existing literature by exploring the implementation of section 6(b) of the Declaration — the victim’s right to present views and concerns — in two UN Member States, Germany and Australia.This thesis analyses the implementation of formal processes and procedures concerning victim participation at the trial and sentencing stage in an inquisitorial system — Germany — and an adversarial system — Australia. It subsequently investigates the expansion of participation procedures at the trial and sentencing stage in the two Member States. The thesis also examines the possibilities for Member States to reject the extension of participatory rights based on the qualifications contained in the Declaration itself. According to section 6(b) Member States can choose not to implement victim participation rights where participation of victims would be ‘prejudicial’ to the accused and/or not ‘consistent’ with the respective national criminal justice system.The analysis conducted in this thesis highlights that the possibilities for victim participation in light of section 6(b), almost 30 years after its adoption, could be extended and enhanced — in both Germany and Australia. Moreover, the expansion of participation rights for victims would not necessarily be prejudicial for defendants’ rights in every case. However, it is arguable that an expansion of participatory rights is ‘inconsistent’ with the national criminal justice systems in Germany and Australia. Both Member States may be able to rely on the argument that ‘modern’ criminal justice is a state-based conflict from which victims have intentionally been excluded. The qualifications contained in the Declaration may therefore enable Member States to continue to justifiably refuse the expansion of victims’ participatory rights at the trial and sentencing stage beyond current limits.As this is a major limitation of section 6(b), the thesis examines the potential success of proposed alternative international standards for victims inter alia aimed at influencing victim participation procedures in Member States. The analysis focuses on the possible adoption of a proposed legally binding UN Convention on Justice and Support for Victims of Crime and Abuse of Power (the ‘Convention’). However, in regards to victim participation, the proposed Convention contains the same qualifications as currently enshrined in section 6(b) of the Declaration. This means that signatory States might be able to rely on the same qualifications and justifiably reject the expansion of victims’ participatory rights after the ratification of the Convention.This thesis concludes that it may be necessary to explore alternatives on the international level apart from the adoption of a Convention to promote the expansion of victims’ participatory rights. It suggests that the viability of the adoption of a Human Rights Council ‘Special Procedures-Mandate’ for the implementation of the Declaration could be explored in future research. Special Procedures might engage actors in Member States in dialogue on victims’ rights to a greater extent and emphasise the importance of victim participation at the trial and sentencing stage. The thesis argues that a change of attitude regarding the victim’s role in criminal justice in Member States might contribute to the introduction of procedures that allow for greater victim participation at the trial and sentencing stage in Germany and Australia.

In this paper, the basic elements of the position of the injured party in criminal proceedings are explained, as well as the ratio legis for introducing appropriate criminal legal instruments for the protection of victims of crimes. A relevant victimological approach is important in both substantive and procedural criminal law. Modern criminal procedures include an appropriate restorative component, as a characteristic of so-called restorative justice. It is particularly important in criminal proceedings to ensure an adequate position for the injured party and to enable effective protection of victims who belong to the category of especially vulnerable persons. The authors highlight the basic normative solutions contained in EU Directive 2012/29, as well as in the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, aimed at improving the position of victims in the criminal justice system. Special attention is paid to analyzing the position of the injured party in Serbian criminal procedure. The aim of the paper is to explain possible problems arising from certain rules of the Criminal Procedure Code of Serbia, as well as recommendations in the de lege ferenda sense, through which it is possible to relatively easily align Serbia’s criminal procedural system with the requirements of the relevant EU Directive 2012/29. The three main requirements regarding the position of the victim in criminal proceedings arising from international and European standards are the removal of identified barriers to victim access to justice, protection of the victim in criminal proceedings, and the need to find a careful balance between the rights of victims and the defendant.

The core document so far in the field of the protection of victims' rights is the “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power”, adopted in 1985 by the UN General Assembly. Starting from the notion that this is a declaration ‘only’, it was suggested by some to develop a victims' rights convention, aiming to improve the legal status of the rights concerned. Following that suggestion, the initiative was taken by independent experts to draft the “UN Convention on Justice and Support for Victims of Crime and Abuse of Power”.This article firstly discusses the legal status of the 1985 Declaration, including the question what parts might have reached the status of international customary law. This analysis is followed by the question of what can be learned from today's academic discussions on characterising international legal standards – hard alongside soft law, etc. – and from recent debates on lawmaking in the international legal field (inter alia, communicative lawmaking and co-regulation). The article addresses some major risks, when embarking on the route of a possible victims' rights convention, including experiences to be drawn from other policy areas. Having done this, it comes up with the instrument of a framework convention, combining the benefits of legal bindingness with the flexibility and ‘stepping-stone character’ of successful soft law documents. It is seen as a way out of the problems discussed in the article. After having presented some further thoughts on monitoring procedures, the article finally takes a careful look at the previously mentioned Draft Convention.

This chapter aims to provide an overview of existing international legal instruments concerning aspects of access to justice and administration of justice and their relevance for victims of terrorism. As the CoE Guidelines on the Protection of Victims of Terrorist Acts is the main international legal instrument explicitly concerned with victims of terrorism (however not binding to its Member States), it will form the basis for the analysis in this context. Moreover, the CoE guidelines will be interpreted in the light of case law of the European Court of Human Rights. Further, the EU Council Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings and the EU Council Framework Decision of 13 June 2002 on combating terrorism will be analysed. Moreover, relevant provisions of the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and those of the International Criminal Court (ICC) are presented. The focus will be put particularly on participatory rights of victims at international and national levels. Finally, it will be explored in how far these provisions have gained practical relevance through their implementation into national legislation of the Member States. A possible detriment of these findings is that these provisions only apply in cases where the terrorist is apprehended and a trial is initiated against the accused terrorist or terrorist group. Nevertheless, such provisions are needed for a fair trial against terrorists in order to secure that victims’ needs and rights are ensured. In this respect, it is not only important to see which provisions exist on paper, but also in how far they have gained practical relevance in the respective legislation of EU Member States.

The United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power has been called a Magna Carta for victims. The United Nations Crime Prevention and Criminal Justice Programme, under which the victim Declaration was developed, has sought to formulate a series of norms and guidelines designed to foster more humane and enlightened national policies and more effective international cooperation in this field. The Economic and Social Council, in its resolution 1990/22, echoed this call and requested the Secretary-General to continue to devote attention to policy and research on the situation of victims and the effective implementation of the victim Declaration, to meet the full range of needs and circumstances of different countries. Economic and social council recognized the need to look beyond national measures in some instances, especially where victims of transnational crimes and abuse of power were concerned.

In 1985, the United Nations General Assembly adopted the Principles of Justice for Victims of Crime and Abuse of Power, to protect and promote victim rights when navigating the criminal justice system. Today, technology, such as online and telephone hotlines, are changing how victims seek and receive support. Our review of the emerging gender-based violence and sexual assault hotline literature outlines where and how international initiatives can practically address complex experiences that shape how victims of violence (VOV) interact with criminal justice settings. In the literature, we identified common themes that revealed VOV demographics and contextual factors that complicate the implementation of victim-based criminal justice procedures. Our findings reveal that gender, age, and contextual factors, like the length of time before someone discloses their victimization, impact the experience of VOV. Our review suggests that the Principles of Justice for Victims of Crime and Abuse of Power should be updated to address individuals' diverse experiences when choosing to report their victimization.

Restitution consists of an amount paid by the offender to the victim in order to make redress for the harm suffered, which helps lighten the financial burden of crime that is imposed on victims. According to the United Nations’ Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, governments are encouraged to review their practices, regulations and laws to consider restitution as an available sentencing option in criminal cases in addition to other criminal sanctions (Article 9). The aim of the UN Declaration is to “assist governments and the international community in their efforts to secure justice and assistance for victims of crime” (Article 3). However, based on an analysis of legal practice and research regarding restitution for victims, it is argued that current policy and practice in Canada stops short of helping victims and, as such, fails to respect the spirit of the UN Declaration. Reparative justice is presented as a victim-centred approach, which takes a broader view of reparations and focuses on the needs of victims of crime.

This chapter examines Article 25 of the United Nations Convention against Transnational Organized Crime (UNTOC). It explains how the provision addresses the offences that involve harm to persons and the obligations of States Parties to provide victims with access to compensation and restitution. Article 25 reflects several key principles of justice for victims of crime, which include the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. The chapter acknowledges that the determination and identification of a victim are not defined in UNTOC, but the United Nations Office on Drugs and Crime offered recourse to its definition. It also mentions the obligation of States Parties to facilitate the views and concerns of victims to be presented and considered at appropriate stages of criminal proceedings.

In the year 2003 the United Nations Convention against Transnational Organised Crime and its protocol against Trafficking in Persons will come into force and create new obligations for State Parties. Both legal instruments contain specific provisions on the rights of victims of organised crime and corruption and of trafficking in persons respectively. An analysis is made of the concurrence of these provisions with the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly in 1985. Several of the main principles of justice for victims, such as the right to be protected against offenders, to claim compensation from the offender and to present views in court are honoured by the new legally binding instruments. The Convention and its protocol will give a new global impetus to criminal justice reform on behalf of victims. The right to claim compensation and express views are especially important for representatives of collective interests, such as NGO's supporting victims of trafficking. Such victim representation has become a regular feature of anti-Mafia trials in Italy. In some other respects, however, these instruments fall short of the UN standards. The rights to be informed, to receive legal assistance, to privacy protection and to state compensation are all notably absent. The Conference of State Parties which will oversee the implementation of the Convention and its protocol should critically assess the practical impact of the victim provisions and make proposals for improvements where appropriate.

Recent evolutions in international (human rights) law standards-setting have focused on promotion and protection of rights of indigenous peoples as collectives. The latter are presented as victims of existing and imposed institutional and legal structures in current Westphalian-modelled polities. 'Victim' in this context remains a concept to be clarified in the light of both international (human rights) law and victimology. Taking the still resisted and even contested existence of Africa Indigenous Peoples as an example among many others, this paper intends to discuss the following core issues: 1.) Despite specific reference in the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power to both individual and collective victimization, victimological discourses are dominated by entitlements of victims as individuals, at the expense of the numerous claims by some collectives, such as indigenous peoples, of their often violated rights through criminal acts or abuse of power; 2.) By challenging the foundational principles of modern unitary sovereigns as the sole beneficiary of self-determination, African - like other - indigenous peoples denounce lack of state legal protection of their specific and differing interests in societies in which they live. Thus, they suffer additional form of victimization (both criminal and through abuse of power) due to their subjugation, marginalization and dispossession by members of the so-called modern/ mainstream society as well as from political administrations in the states in whose jurisdiction they live; 3.) In those aspects of lack of state legal protection of the groups as collectives, we argue that the concept of abuse of power in the declaration covers their collective claims and entitlement to the benefits resulting from the declaration, given the reliance on internationally recognized norms relating to human rights in defining the latter concept; 4.) In case indigenous peoples are duly acknowledged in their collective standing as victims, how can this type of victimization be operationalised under the existing victims' surveys? Furthermore, what are the challenges presented by availing the rights in the declaration and other victims' rights instruments not only to victims as individuals but also as collectives? 5.) What are the possible advantages or disadvantages on the one hand, conflicts or rather complementarity on the other hand, respectively presented by or resulting from coverage of (African) indigenous peoples' claims by both international (human rights) law and victimological studies.

Traditionally, the victim has not occupied a prominent position in the criminal justice system in either the Netherlands or England and Wales. But since the 1970s there has been a growing interest in both Europe and North America in victims of crime. During this period the nature of victimization and its extent has received widespread publicity. A great deal is now known about the effects of crime on victims, the needs that may arise from victimization, and the reaction of various agencies to those needs. Strategies to help victims have been developed. In November 1985, the United Nations General Assembly adopted a charter of victim rights the Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power-and 157 governments declared their commitment to pro viding equitable treatment, access to justice, reparation, and services for victims of crime.1 In the USA victimologists have followed a largely rights based strategy-encouraging the passing of state and federal legislation to allow victims greater participation at all levels of the criminal justice pro cess.2 In Europe, by contrast, the major preoccupation has been with improvements in services to victims rather than with either victims ‘ rights or radical legislation on their behalf. The Council of Europe has taken a number of steps to encourage measures to improve the plight of crime victims: the European Convention on the Compensation of Victims of Violent Crime 1983; the Recommendation on the Position of the Victim in the Framework of Criminal Law and Procedure 19853 and recommendations

In November 1985, the United Nations General Assembly (1985) adopted a charter of victim rights — the ‘Declaration on the Basic Principles of Justice for Victims of Crime and Abuse of Power’. Governments and international organisations are now faced with the challenge of implementing these principles. The UN Declaration and the Recommendations of the Council of Europe propose specific ways by which justice and services can be improved. Countries such as Canada, England, France and the United States are passing legislation. However, even there much more is required. All governments must ensure that the principles are put into practice by the police, in victim support agencies, in mental health approaches, in reparation to victims, and for acceptable participation by the person immediately hurt by crime. Further, the United Nations, governments, and private organisations need to establish commissions to assess the needs of victims, the state of services and justice, and solutions to meet needs better. However such commissions must have a role in implementation and prevention if communities are going to be safer and ‘Justice is going to open her eyes to victims’.

The Tragedy and Horror of Human Trafficking of Children and Youth

The relocation of the victim in common law systems of justice has occurred through various reforms to the law and policy process. The provision of differential rights across service, participatory, and enforceable or substantive rights has been largely facilitated by the introduction of charters or declarations of rights that set out these rights. The provision of rights through a charter or declaration is designed to meet the 1985 PJVC (Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power) and other international instruments considered in Chap. 1. However, these documents are an innovative policy approach to the recognition of victims and what implies a compromise in the context of the normative assumptions inherent in the adversarial criminal trial. This compromise is the allocation of rights for victims in a system of justice where to talk of victim rights appears antithetical to the normative assumptions of adversarial justice. These assumptions talk of the rights of the defendant, the state, and the courts, and the agents who work for and within them—lawyers, the police, the prosecution, and the judiciary. To talk of victim rights in a system that denies the standing of the victim as a party participant is contradictory and controversial. The answer is to house victim rights in such a way as to render them compatible, or perhaps tolerable, with a system that identifies the victim as beyond the normative scope of the criminal trial.

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power