The role of the victim in criminal proceedings in Australia and Germany - a comparison

Abstract

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.