Žrtve krivičnih dela i pravo na naknadu štete - međunarodni standardi i izazovi u Srbiji

<table border="0" cellspacing="0" cellpadding="0"><tbody><tr><td valign="top" width="388"><p class="TableParagraph"><em>Women often become victims of crimes, especially sexual crimes and domestic violence, in legal proceedings, but the legal protection stipulated in laws and regulations is still considered inadequate and many women still experience discrimination and injustice. The purpose of this study is to analyze the legal protection of women victims in criminal justice proceedings in Indonesia from a socio-legal perspective in order to identify the socio-cultural-structural barriers that cause the weakness of such protection. This study uses an empirical legal research method with a sociological legal approach to analyze the application of regulations on protecting women victims in criminal proceedings, with primary data obtained from field studies and interviews which are then analyzed qualitatively. The results show that nomatively, regulations on protecting women victims are adequate, but in practice they are heavily influenced by patriarchal socio-cultural factors and negative stigma against women victims which affect the attitude of law enforcement officials, resulting in many victims experiencing discrimination and injustice. The socio-cultural-structural barriers include negative stigma and discriminatory treatment of victims, patriarchal culture that subordinates women, lack of psychosocial and legal support for victims, and limited access to justice for marginalized women victims. At the structural level there are also problems of low gender capacity of law enforcement officials, lack of NGO advocacy, and legal and judicial systems that are not yet victim-friendly.</em><strong></strong></p></td></tr></tbody></table>

Due to the significant burden on the bodies of pre-trial investigation and the prosecutor’s office, criminal proceedings serious or especially serious offences with victims are not always investigated effectively. As a result, the rights and legitimate interests of the victims not being protected. However, it is a generally accepted convention that the priority for investigators and prosecutors is the proving a criminal suspect’s or accused’s guilt. Restoration of violated rights of victims is a secondary task assigned to the persons who have suffered physical, material and moral damage by committing a criminal offence. Therefore, the issues of providing professional legal assistance to victims in criminal proceedings are important today. The purpose of the article is to define the concept and reveal the content of representation by the victim’s lawyer in criminal proceedings, to outline the circle of problems that arise in this case and to make proposals for solution. The study reported that based on the analysis of legislation and the practice of its application a theoretical definition of representation of the victim in criminal proceedings are formulated. The purpose and tasks of this activity are determined, and its characteristics are outlined. The problems of legal regulation that reduce the effectiveness representation of the victim in criminal proceedings are identified. The proposals to improve the legislation are made. Representation of the victim in criminal proceedings is defined as a type of lawyer’s activity, which consists in providing the victim of a criminal offense with professional legal assistance to ensure his rights and legitimate interests at the stages of pre-trial investigation and court proceedings, as well as during procedural actions that can be carried out before the start of pre-trial proceedings investigation. The insufficiently high efficiency of the institution of representation of the victim in criminal proceedings is caused by the shortcomings of legal regulation, which must be corrected, among other things, by: normalizing the mandatory immediate involvement of a lawyer for the representation of the victim (including with public funds) in proceedings regarding especially serious offences and crimes of any severity, if the consequences are the death of a person or damage to health, which has signs of serious bodily injury, or bodily injury of medium severity; establishment of the duty of the investigator to immediately explain to the victim his rights and obligations; granting the victim and his representative equal rights with the parties to the criminal proceedings regarding the possibility of involving an expert to conduct an examination and the initiative of temporary access to things and documents.

The article is devoted to issues of procedural regulation of the rights of victims in criminal proceedings. Based on the generalization of UN data on the increase in the number of victims of murder, statistical data of the State Judicial Administration of Ukraine and the Office of the Prosecutor General, the relevance of legislative initiatives to improve the provision and realization of victims’ rights is substantiated. The directions of state policy regarding ensuring the safety of victims, preventing and countering torture are revealed. It emphasized the “lack of remedies for victims of criminal offenses involving torture, cruel, inhuman or degrading treatment or punishment.” Recommendations are given to eliminate these gaps by creating, taking into account international standards and the practice of the European Court, an effective system of rehabilitation, legal protection of victims of criminal offenses related to torture, cruel, inhuman or degrading treatment or punishment, including introduction of an effective mechanism for compensation for damage caused to such persons.
 In the conditions of martial law, Ukraine concentrates its efforts on protecting the rights of victims, which requires coordination with the Rules and Procedures of Evidence and Evidence of the International Criminal Court. The full-scale invasion of the aggressor country created new challenges in the field of protection of the rights of victims in criminal proceedings. In order to implement new tasks, a Strategic Plan for the implementation of the powers of the prosecutor’s office in the field of criminal prosecution of international crimes for 2023-2025 was developed, approved by the Prosecutor General on September 15, 2023.
 Improving the system of ensuring the rights of participants in criminal proceedings in accordance with international standards will significantly reduce the number of victims of torture, observing reasonable deadlines for the investigation of criminal proceedings will contribute to increasing the trust of victims in law enforcement agencies, preventing delays in the consideration of criminal proceedings by the court will ensure adequate terms of satisfaction (execution of the court decision in part compensation for physical, moral and material damage). A significant number of victims of war crimes should be aware of their rights in accordance with the procedure of trial by the International Criminal Court, for which it is advisable to make appropriate additions to Chapter 19 of the Criminal Procedure Code of Ukraine.

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.

У статті досліджено поняття, значення, окремі категорії кримінально-процесуальної активності потерпілого у кримінальному провадженні. Підкреслюється значення комунікативних бар’єрів у реалізації законних інтересів потерпілого у кримінальному провадженні. Зазначається, що категорія кримінально-процесуальної активності потерпілого під час кримінального провадження включає як елемент забезпечену процесуальними нормами можливість потерпілого набувати відповідного процесуального статусу, отримувати інформацію про кримінальне провадження, обмінюватись інформацією про стан (рух) кримінального провадження, впливати на кримінальне провадження шляхом реалізації свого законного права на процесуальну комунікацію.

The article is devoted to the study of certain aspects of communication of the victim in criminal proceedings in the form of private prosecution. It is noted, that the procedure of criminal proceedings in the form of private prosecution is almost not regulated by Chapter 36 of the CPC, as the norms that should regulate it are either absent or contained throughout the CPC. Therefore, the development of proper legal regulation of private prosecution as a separate proceeding is a topical industry issue.This, in turn, requires a significant revision of the basic foundations of normative regulation of the victim in criminal proceedings in general, including the rights of the victim, his/her procedural status at all stages of criminal proceedings, the starting mechanism to ensure the legal rights and interests of the victim during criminal proceedings.It is stated, that in order to protect the rights and legitimate interests of the victim in criminal proceedings, the law should provide for the possibility of initiating criminal proceedings (pre-trial investigation) in the form of private prosecution in case, when the victim is unable to bring an application in action by own will. In this regard, it is proposed to amend Part 1 of Art. 477 of the CPC, paragr. 2 part 7 art. 55 of the CPC

The problems of dealing with crime victims are covered in the Process of europeisation. The activities of the Council of Europe and of authorities of the EU affect the victim’s position in criminal proceedings, the extent of their rights and the protection of their interests. Under the resolutions of the Council of Europe, agreements (conventions) are the only form of legally binding documents. In matters of EU law, directives and framework decisions are the only instruments applicable to regulating the rights and interests of crime victims. Europeisation is focused on two areas. The less problematic one seems to be the sphere of compensation of victims of violent crimes. Here it is necessary to keep in mind the European convention on the compensation of victims of violent crimes from the year 1983 and the Directive of EU Council relating to compensation to crime victims from the year 2004. The obligations are formulated definitely and specifically. The question of victim’s position in criminal proceedings is more problematic. The diversity of legal regulations in each particular state results in the problem of finding consensus regarding this topic. The legal instrument of harmonisation in this topic is the framework decision of EU Council on the standing of victims in criminal proceedings from the year 2001. The obligations are formulated less certainly and specifically, as they permit more exceptions. The Czech legal regulation is in harmony with obligations both the Council of Europe and EU law regarding the compensation of victims. On the contrary the transposition of the framework decision on victims’ standing isn’t without problems. In particular, there are differences between Czech law and the framework decision in numerous areas: 1) Czech law doesn’t require state authorities to provide victims as much information as set forth in the framework decision (art. 4); 2) Czech law restricts the victims’ rights more than in the framework decision, by limiting certain rights only to victims, who are in the position of witness (art. 8); 3) Czech law is silent on the issue of specific rights of foreign victims, whereas framework decision lays down guidelines for such rights (art. 11). The European institutions may check whether the Czech law adopts the regulation and obligations arising from the framework decision. The European Court of Justice has previously adjudicated situations regarding harmonisation of EU laws in other foreign countries (especially judgement on the merits Pupino and on the merits Dell’Orto). It is necessary to make our legislation in conformity with the framework decision.

Introduction. The current Russian Criminal Procedure Law provides for the institution of his representation to protect the rights and legitimate interests of a minor victim in criminal proceedings. This article is devoted to the analysis of federal and regional legislation providing for general and additional measures aimed at protecting the rights of minors by victims. Theoretical Basis. Methods. The theoretical basis of the study was the scientific works of domestic and foreign authors devoted to the representation of the legitimate interests of a minor victim in criminal proceedings, in particular, providing him with free qualified legal assistance. The use of the formal legal method of research allowed us to identify the features of the legal regulation of the entry into criminal proceedings of the representatives of the minor victim. Results. An overview of the most significant issues for law enforcement related to the provision of a representative-lawyer to an imperfect victim, including on a gratuitous basis, is presented. In particular, the differences, positive and negative sides of the regulatory regulation of the procedure for ensuring the participation of a representative-lawyer of a minor victim under the Criminal Procedure Code of the Russian Federation and the Stavropol Territory Law “On additional guarantees for the protection of the rights of minors recognized as victims in criminal proceedings” dated November 11, 2010 No. 94-kz. Discussion and Conclusion. The participation of a legal representative and a representative – a relative or representative – of another person to protect the rights and legitimate interests of a minor victim seems to be inadequate. The proper realization of everyone’s right to receive qualified legal assistance requires ensuring the participation of a representative-lawyer in the interests of a minor victim. It is proposed to legislate the participation of a lawyer as a representative of a minor victim as a case of mandatory participation in the criminal process of a representative-lawyer.

The paper examines the problem of human rights communication of the victim in criminal proceedings. The paper defines the doctrinal concept of human rights communication of the victim, its forms, types, and the main categories, which include the communicative position of the victim, communicative equality, communicative guarantees, and communicative barriers.The authors of this paper highlight the current criminal procedure legislation should guarantee the victim’s activity during the pre-trial investigation and court proceedings. In this regard, it becomes relevant to consider the problems of timely provision, protection, and effective restoration of the rights, freedoms, and legitimate interests of the victim in criminal proceedings and the creation and improvement of the system of communicative guarantees.The paper emphasizes that the criminal procedure activity of victims in criminal proceedings is a process when they, their representatives, or legal representatives implement the victim’s communicative position as an act of conscious will. This process is defined by communicative guarantees, is limited by communicative barriers, and determines the implementation of human rights communication of the victim in criminal proceedings on the basis of communicative equality.

The paper examines the modern "image of the victim" in criminal procedural law; indicates the communicative vision of values ​​within a specific legal reality and the relationship of the victim in criminal proceedings (as a carrier of values) with this legal reality, as well as communicative equality as a key component of the value of "victim image" to be provided by the legislator. Considerable attention is paid to the theoretical foundations of the development of the problems of criminal-procedural communication of the victim. It is noted, that procedural communication is a category that within each individual legal situation - criminal proceedings - certifies and integrates the concept of legal values ​​in the sectoral (criminal procedure) norm. It is emphasized, that the axiologization of communication processes in criminal proceedings, in particular, criminal procedural communication of the victim, is designed to create a communicative vision of values ​​within a specific legal reality and the relationship of the victim in criminal proceedings (as a carrier of values) with this legal reality, or in other words, to create the “image of the victim" in criminal procedural law, and values ​​- an integral part of such an image. It points to communicative equality as a constitutive value of the modern "image of the victim" in criminal procedural law, which must be ensured by the legislator

The problems of using information technologies are relevant due to their constant development and implementation in various spheres of human life. Advocacy is no exception. This article is devoted to the peculiarities of their application in the implementation of activities to protect the rights of the victim in criminal proceedings. The author has studied the types and methods of their use at various stages of legal assistance: entering into a case, collecting evidence, participating in a court hearing on a criminal case. The author pays special attention to the peculiarities of assigning a lawyer to a minor victim using an automated system developed with the participation of the Federal Chamber of Lawyers of the Russian Federation. In the work, the author analyzed the current regulatory legal acts, including the latest amendments to the Criminal Procedure Code of the Russian Federation regulating the use of electronic document management in criminal proceedings. The peculiarities of the use of information technologies in the process of providing legal assistance have repeatedly become the subject of research, however, the problems arising in the protection of the rights of the victim in criminal proceedings have not received due attention from scientists. According to the results of the study, the author concluded that there is insufficient regulation of some aspects of digital technologies in advocacy, for example, sending electronic lawyer requests, participating in court proceedings via videoconference, assigning a lawyer to a minor victim. Ways to eliminate existing gaps were proposed.

The relevance of the study lies in the urgent need to develop scientifically grounded and practically applicable criteria for the admissibility of using secret audio and video recordings made by victims in criminal proceedings regarding domestic violence. The purpose of the study is to establish whether the information contained in secret audio and video recordings made by victims can be used as evidence in criminal proceedings regarding domestic violence. The main research methods are systemic, analysis and synthesis, historical, heuristic, formal-legal methods. The issues of providing recordings by victims, witnesses, and other persons for criminal investigation purposes; general criteria for restricting the right to privacy in criminal proceedings regarding domestic violence; problems of evidence presentation by victims and applicants; issues of documenting domestic violence facts; the issue of admissibility of documentation are investigated. It is proved that aspects of the legality test for limiting the offenderʼs right to privacy in cases of conducting criminal proceedings regarding domestic violence may involve inquiries concerning the importance of evidence gathered through covert recordings and the exclusivity of the necessity of such measures. It is argued that when considering the criterion of a secret operation, which is identified as a condition for recognising audio and video recordings as inadmissible evidence, it should be acknowledged that in criminal proceedings related to domestic violence, video and audio recordings provided by victims cannot meet this condition in the vast majority of cases. The practical value of the study lies in the possibility of unifying judicial practice in determining the admissibility of evidence contained in audio and video recordings made secretly by victims in criminal proceedings regarding domestic violence

The article examines the state of scientific development of the problem of human rights communication of the victim in the criminal proceedings of Ukraine. According to Article 2 of the Criminal Procedure Code of Ukraine, the primary task of criminal proceedings and the essence of the criminal procedure are the protection of the victim, their rights, freedoms, and legitimate interests. The right of the victim to human rights communication is understood as the possibility provided by the criminal procedural law for the victim, their representative, legal representative, or successor to receive information about criminal proceedings, exchange information about the state of criminal proceedings, and influence criminal proceedings in order to protect and restore the violated rights, freedoms, and legitimate interests of the relevant participant in criminal proceedings. The problem of human rights communication of the victim is intended to thoroughly and holistically integrate numerous aspects related to the protection of the rights and legitimate interests of the victim. It also strives to direct new impulses of scientific research in the field of protection of victim rights to the improvement of the mechanism for the implementation of relevant rights in the adversarial criminal process based on a victim-centered approach. This article examines the issues that have not been raised in scientific works yet but are essential for criminal procedure theory and law enforcement. The article emphasizes that it is relevant to substantiate and study the victim’s right to procedural communication and the concept of human rights communication of the victim in criminal proceedings. It also highlights communicative equality as a fundamental value, which permeates the rules of criminal law and procedure, the criminal procedure activity of the victim, and communication guarantees and barriers that contribute to or interfere with the latter.

The article deals with the features of a participant in criminal proceedings on the part of the prosecution-the victim. The author notes the high importance of observing the interests of the victim as a victim of a crime in criminal proceedings, which is one of the elements of the constitutional balance of interests in the criminal procedure legislation of the Russian Federation. The article analyzes the features of procedural rights under the Statute of Criminal Proceedings of the Russian Empire before 1917. It is noted that the victim of the crime had a greater amount of rights in cases of private prosecution. The author analyzes the modern approach of the legislator in a number of European countries (Great Britain, the French Republic, the Swiss Confederation) to the protection of the rights of the victim of a crime in criminal proceedings. Attention is drawn to the fact that according to European legislators, the state, represented by its public bodies that carry out criminal prosecution, should not only bear greater responsibility for bringing the perpetrators to criminal responsibility, but also impose the burden of compensation for the damage caused to the victim of the crime. Several variants of approaches to solving the problem of improving the procedural status of the victim in the criminal proceedings of the Russian Federation are proposed. The author expresses an opinion on the practical solution of certain problems of protecting the rights of the victim in criminal proceedings, without making changes to the Russian criminal procedure legislation. The article is illustrated with examples from judicial practice.

The article examines the problems of torture and ill-treatment in the relevant practice of the European Court of Human Rights. The Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) has become an important place in the practice of application of criminal law of Ukraine. After analyzing some practice ECtHR about violation of Article 3 of the Convention, the forms of torture and inhuman treatment were singled out. These include: improper investigation, improper treatment of convicts, improper medical care of convicts, threats of torture, ignoring allegations of threats of torture or ill-treatment, etc.It was found that despite numerous judgments of the European Court of Human Rights against Ukraine, both certain provisions of law and practice of their application continue to contradict the provisions of the Convention, in particular Article 3.It is established that currently the problem of treatment of people by law enforcement agencies and other state representatives is urgent and systemic.The paper proposes that some European experience should be borrowed in providing a real mechanism for the protection of human rights and freedoms. Reforms are needed to ensure the effective participation of victims in criminal proceedings and the use of incentives, as well as the practice of compensating victims. It seems that given the accompanying circumstances, failure to provide the victim with a real opportunity to participate in criminal proceedings, as well as the lack of informing the victims about the progress of the investigation can be considered as inhuman treatment within the meaning of Art. 3 of the Convention.