minimal standards of criminal proceedings – the victims workshop 4 alexandria, arab republic of...

Minimal standards of Minimal standards of criminal proceedings – the criminal proceedings – the victimsvictims

Workshop 4Workshop 4

Alexandria, Arab Republic of EgyptAlexandria, Arab Republic of Egypt

by Perry C. Quakby Perry C. Quak

The NetherlandsThe Netherlands

UNDP/POGAR Workshops on Human RightUNDP/POGAR Workshops on Human Rights, 12 March, Alexandria, Egypts, 12 March, Alexandria, Egypt

ContentsContents

Participants in criminal proceedingsParticipants in criminal proceedings Position of the victimPosition of the victim Rights of the victims before trialRights of the victims before trial Rights of the victims during trialRights of the victims during trial Financial compensationsFinancial compensations AssistanceAssistance Rule of LawRule of Law


Criminal proceedings, only Criminal proceedings, only trial?trial?

Start of criminal proceedings: Start of criminal proceedings: – not only with the interference of a judgenot only with the interference of a judge– in fact starting with police investigationsin fact starting with police investigations

Unlawful investigations seriously Unlawful investigations seriously affect the trialaffect the trial

Treatment of the victim during Treatment of the victim during investigations should be concern of investigations should be concern of courtcourt


Participants in criminal Participants in criminal proceedingsproceedings

Suspect Suspect VictimVictim WitnessWitness ProsecutorProsecutor Judges and registrarJudges and registrar Defense lawyerDefense lawyer InterpreterInterpreter


Position of the victimPosition of the victim

Victim: unwillingly involved Victim: unwillingly involved Yet to be considered a partyYet to be considered a party

– reporting crime to policereporting crime to police– standing as a witness before the courtstanding as a witness before the court– questioned by the defence lawyerquestioned by the defence lawyer– being damaged being damaged

(physically, financially, psychologically)(physically, financially, psychologically) Needs protection as well as Needs protection as well as

critical approachcritical approach– false allegations not acceptable !false allegations not acceptable !


Rights of the victims before Rights of the victims before trialtrial

Right to be taken serious when Right to be taken serious when reportingreporting

Impartial approach by police Impartial approach by police Victim should be notified about the caseVictim should be notified about the case

– in general: there should be a right to know in general: there should be a right to know about your own caseabout your own case

– but of course: no information about the but of course: no information about the ongoing (‘secret’) police investigationsongoing (‘secret’) police investigations


Rights of the victims before Rights of the victims before trialtrial

Victim should be informed about Victim should be informed about his/her rights at an early stage:his/her rights at an early stage:– regarding right to complain about regarding right to complain about

relevant decisions (e.g. not to prosecute)relevant decisions (e.g. not to prosecute)– regarding right to be heard by the Courtregarding right to be heard by the Court– regarding right to financial compensationregarding right to financial compensation– regarding right to (legal) assistanceregarding right to (legal) assistance– regarding right to (private) co-regarding right to (private) co-

prosecutionprosecution


Rights of the victims during Rights of the victims during trialtrial

Right to be presentRight to be present InterpreterInterpreter

– right to give statement in own languageright to give statement in own language LawyerLawyer

– legal assistance related to legal positionlegal assistance related to legal position Right to private co-prosecutionRight to private co-prosecution Financial compensationsFinancial compensations


Worldwide growing interest Worldwide growing interest in position of victimsin position of victims

According to IAP Conferences:According to IAP Conferences:– in some jurisdictions a strong, own in some jurisdictions a strong, own

positionposition– in some jurisdictions a weak positionin some jurisdictions a weak position

The Netherlands: position of victim The Netherlands: position of victim strengthening, last decades strengthening, last decades – complain about decision not to prosecutecomplain about decision not to prosecute– financial compensations financial compensations – right to be heard by the courtright to be heard by the court


Right to complain - in Right to complain - in generalgeneral

International Covenant on Civil and International Covenant on Civil and Political Rights Political Rights (Human Rights’ (Human Rights’ Committee)Committee)

European Convention on Human RightsEuropean Convention on Human Rights– art. 34: complaints against violations of art. 34: complaints against violations of

Human Rights by a StateHuman Rights by a State– anyone (also minors and relatives)anyone (also minors and relatives)– ““immunity” for plaintiffimmunity” for plaintiff


Right to complain -Right to complain -NetherlandsNetherlands What decision can be complained What decision can be complained

about?about?– decision by prosecutor to dismiss the casedecision by prosecutor to dismiss the case– decision by prosecutor to (out-of-court) settlementdecision by prosecutor to (out-of-court) settlement

Complainant: the victim, or its Complainant: the victim, or its surviving relatives surviving relatives

Forum: Court of AppealsForum: Court of Appeals Judgement:Judgement:

– reject the complaint, orreject the complaint, or– sustain the complaint, commanding the sustain the complaint, commanding the

prosecutor to prosecuteprosecutor to prosecute


Co-prosecution?Co-prosecution?

In some jurisdictions (In some jurisdictions (not the Netherlandsnot the Netherlands)) Should include:Should include:

– co-deciding about the indictment co-deciding about the indictment – asking questions to the suspect/witnessesasking questions to the suspect/witnesses– comment on witnesses’ statementscomment on witnesses’ statements– co-deciding about the demanded punishmentco-deciding about the demanded punishment– doing proposals to the court for additional doing proposals to the court for additional

evidenceevidence


Right to be heard by the Right to be heard by the CourtCourt

Important that the voice of the Important that the voice of the victim can be heard during the trialvictim can be heard during the trial– by the voice of the prosecutorby the voice of the prosecutor– by a written victim’s statementby a written victim’s statement– by a personally spoken statementby a personally spoken statement

Role of the victim during this part Role of the victim during this part of the process is different from the of the process is different from the victim as a witnessvictim as a witness


Victim’s statementVictim’s statement

Aim: assessment of seriousness of Aim: assessment of seriousness of crimecrime

Describing personal consequences:Describing personal consequences:– physicallyphysically– financially financially – sociallysocially– psychologicallypsychologically– relationally relationally


Financial compensationsFinancial compensations -1 -1

Damage suffered by the victim Damage suffered by the victim should be compensated by offendershould be compensated by offender– material damage (e.g. broken window, material damage (e.g. broken window,

cost of medical examination, value of cost of medical examination, value of stolen good etc.)stolen good etc.)

– immaterial damage (compensation for immaterial damage (compensation for pain, psychological or relational pain, psychological or relational suffering)suffering)

Separate decision by CourtSeparate decision by Court


Financial compensationsFinancial compensations -2 -2

The Netherlands: separate civil The Netherlands: separate civil procedure as part of the criminal procedure as part of the criminal proceedingsproceedings– victim may claim specific amount of victim may claim specific amount of

financial compensationfinancial compensation– well founded (bills, valuations, pictures etc.)well founded (bills, valuations, pictures etc.)– right to legal assistanceright to legal assistance

Prosecution Service takes care of the Prosecution Service takes care of the execution (execution (debt-collectiondebt-collection))


Civil society organizationsCivil society organizations

Victims need practical help and Victims need practical help and assistanceassistance– medical and socialmedical and social– financial and legalfinancial and legal– protection (against threat or intimidation)protection (against threat or intimidation)

Professional care: Professional care: – civil society organizations (“Victims’ civil society organizations (“Victims’

assistance organization”)assistance organization”)– co-ordination of volunteersco-ordination of volunteers


Rule of LawRule of Law

Position of victim needs protection by Position of victim needs protection by lawlaw

Impartiality: equal protection to all Impartiality: equal protection to all Procedural regulation by law:Procedural regulation by law:

– right to complain (e.g. about non right to complain (e.g. about non prosecution)prosecution)

– right to be heard in Courtright to be heard in Court– right to compensationright to compensation

Perry C. Quak, LL.M, MPAPerry C. Quak, LL.M, MPA

Solicitor-GeneralSolicitor-General

Court of Appeals, The NetherlandsCourt of Appeals, The Netherlands

e-mail: [email protected]: [email protected]

thank you for your attention.

any questions?

minimal standards of criminal proceedings – the victims workshop 4 alexandria, arab republic of...

Documents