Reflections on the functioning of the guardian ad litem appointed for a minor victim during a criminal trial: A prospects for change

Abstract

A minor as a victim cannot act independently in a criminal trial. In accordance with Article 51(1) of the Code of Criminal Procedure, the rights of the minor are represented by their statutory representatives, i.e. their parents (if the minor remains under their parental authority). If, however, the perpetrator of the crime against the child is the other parent or a spouse of the parent, the non-offending parent is excluded from representing the child. In this case, the guardianship court will appoint a guardian ad litem. The goal of this institution is to implement and safeguard the interests of the child during the criminal trial. In practice, however, it often happens that these guardians do not fulfil their duties in a way that guarantees the due protection of the minor. In extreme cases, they are not appointed at all or are appointed too late. While looking for a solution that would guarantee the proper protection of the rights of the minor, the Ministry of Justice presented a proposal for the introduction of the position of “helper” of a minor who is a victim. This publication is a detailed analysis of the institution of the guardian ad litem, and studies the validity of the introduction of an additional entity with the authority to defend the rights of an aggrieved child.