Abstract
The recognition of the condition of victim is important because it has legal consequences. The most important of it is the attribution to the victim of a catalogue of rights that, at the same time, are obligations on the charge of states. Additionally, such recognition is also important because states, international organizations, NGOs and private companies are called by international norms on victims to treat them with respect and compassion as well as in a manner which respects their personal security, their private as well their family life.
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- 1.
See Bassiouni (2002), 134–185.
- 2.
The only victims who do not become victims as a consequence of a crime are victims of abuse of power. That is, “persons who, individually or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that do not yet constitute violations of national criminal laws but of internationally recognized norms relating to human rights”.
- 3.
Doc. E/CN.4/2005/L.10/Add.11. In the same line cf. S. Zappalá, op. cit., 228. The resolution was adopted within the Commission on Human Rights by a recorded vote 40 votes to none, with 13 abstentions.
- 4.
The protection of this last category of victims can be founded on the jurisprudence of the Inter-American Court of Human Rights (cf. N. Fernández Sola, “El derecho a la reparación…, op. cit., 403).
- 5.
- 6.
Like, for example, such as those concerning an interest or capacity to act. In addition, “in order for an applicant to be able to claim to be a victim of a violation of the Convention, there must be a sufficiently direct link between the applicant and the harm which they consider they have sustained on account of the alleged violation (see, among other authorities, Tauira and Others v. France, no. 28204/95, Commission decision of 4 December 1995, Decisions and Reports (DR) 83-B, p. 112; Association des amis de Saint-Raphaël et de Fréjus and Others v. France, no. 38192/97, Commission decision of 1 July 1998, DR 94-B, p. 124; Comité des médecins à diplômes étrangers v. France and Others v. France (dec.), nos. 39527/98 and 39531/98, 30 March 1999)” (Gorraiz Lizarraga and others v. Spain, Judgement of 27 April 2004, 35, ECHR 2004-III.
- 7.
Cf., in particular Marckx v. Belgium, Judgement of 13 June 1979, ECtHR serie A no 31, § 27, Inze v. Austria, Judgement of 28 October 1987, serie A n° 126, § 32).
- 8.
Cf. ECHR Gorraiz Lizarraga and others v. Spain, 38, ECtHR 2004-III. In this case, the Court adds: “And indeed, in modern-day societies, when citizens are confronted with particularly complex administrative decisions, recourse to collective bodies such as associations is one of the accessible means, sometimes the only means, available to them whereby they can defend their particular interests effectively. Moreover, the standing of associations to bring legal proceedings in defence of their members’ interests is recognized by the legislation of most European countries. That is precisely the situation that obtained in the present case. The Court cannot disregard that fact when interpreting the concept of “victim”. Any other, excessively formalistic, interpretation of that concept would make protection of the rights guaranteed by the Convention ineffectual and illusory.”
- 9.
Cf. ECHR, Paşa et Erkan Erol v.Turkey, nº 51358/99, Judgement of 12 December 2006.
- 10.
Cf., ECHR Amuur v. France, Judgement of 12 December 2006, ECtHR Recueil 1996-III, 36.
- 11.
So, with regard to telephone tapping, in Klass and others v. Germany, Judgement of 6 September 1978, série A n° 28. Here in paragraph 34, the Court accepts “that an individual may, under certain conditions, claim to be the victim of a violation occasioned by the mere existence of secret measures or of legislation permitting secret measures, without having to allege that such measures were in fact applied to him. The relevant conditions are to be determined in each case according to the Convention right or rights alleged to have been infringed, the secret character of the measures objected to, and the connection between the applicant and those measures”. For a case concerning extradition, Soering v. United Kingdom, Judgement of 7 July 1989, serie A nº 161). With regard to measures restricting the distribution of information on abortion to women of child-bearing age cf. Open Door y Dublin Well Woman v. Ireland, Judgement of 29 October 1992, serie A n° 246-A, § 44).
- 12.
So, for example in a case of absence of a formal expulsion order in Vijayanathan et Pusparajah v. France, Judgement of 27 August 1992, serie A nº 241-B, § 46; alleged consequences of a parliamentary report see The Chrstian Federation of Jehovah’s Witnesses in France v. France (déc.), n° 53430/99, CEDH 2001-XI; a potential fine on an applicant company in Senator Lines v. EU States (GC) (déc.), n° 56672/00, ECtHR 2004-IV).
- 13.
This is the case, for example, of a case-law of the Inter-American Court of Human Rights. The General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted on 29 November 1985, also includes as indirect victims persons who have suffered harm in intervening to assist victims in distress or to prevent victimization.
- 14.
ECHR, Judgement of 10 May 2001, Cyprus v. Turkey, 156. See a critic of this judgement in N. Fernández Sola, op. cit., 404.
- 15.
Cf. ECHR, McCann and others v. United Kingdom, Judgement of 27 September 1995, série A nº 324, and Yaşa v. Turkey, Judgement of 2 September 1998, Recueil des arrêts et décisions 1998-VI, § 66.
- 16.
Cf. ECHR, Kurt v. Turkey, Judgement of 25 May 1998, Recueil des arrêts et décisions 1998-III. However in Çakıcı v. Turkey (under Article 3), the ECHR did not accept the inclusion of a family member of a “disappeared person” inside the concept of indirect victim (cf. [GC], n° 23657/94, § 98–99, ECtHR 1999-IV).
- 17.
Cf. ECHR, Brudnicka and others v. Poland, n° 54723/00, § 26 et seq., ECtHR 2005-II, and Marie-Louise Loyen et Bruneel v. France, n° 55929/00, Judgement of 5 July 2005.
- 18.
Cf. ECHR, Nölkenbockhoff v. Germany, Judgement of 25 August 1987, serie A nº 123, § 33.
- 19.
Cf. ECHR, Dalban v. Romania [GC], n° 28114/95, § 39, ECtHR 1999-VI.
- 20.
Cf. ECHR. Thévenon v. France (cancellation), n° 2476/02, Judgement of 28 February 2006; Karner v. Austria, n° 40016/98, parágrafos 25 y siguientes, ECtHR 2003-IX and, a contrario, Fairfield and others v. United Kingdom (déc.) nº 24790/04, Judgement of 8 March 2005. Regarding the transferability of the reasons, cf. ECHR Marie-Louise Loyen et Bruneel v. France, and, a contrario, Sanles Sanles v. Spain (déc.), n° 48335/99, ECtHR 2000-XI et Biçand others v. Turkey, n° 55955/00, § 22, Judgement of 2 February 2006.
- 21.
In the frame of the UN, this principle can be found in the General Assembly Resolution 60/147 of 16 December 2005 adopting the Basic Principles and guidelines of the Right to a Remedy and Reparation for victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Doc. E/CN.4/2005/L.10/Add.11). In the frame of the Council of Europe, the principle of non-discrimination is formulated both in the Guidelines on the Protection of Victims of Terrorist Acts adopted on 2 March 2005 by the Committee of Ministers, in the European Convention on the Compensation of Victims of Violent Crimes adopted on 24 November 1983 and in Recommendation (2006) 8 of the Committee of Ministers On Assistance to Crime Victims.
- 22.
This principle is stated both in paragraph 4 of UN the General Assembly Resolution 40/34 adopted on 29 November 1985 containing the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, in Article 2 of Council Framework Decision (2001/220/JHA) of 15 March 2001 on the Standing of Victims in Criminal Proceedings (OJEU L 81 of 22 March 2001) and in the Guidelines on the Protection of Victims of Terrorist Acts adopted on 2 March 2005 by the Committee of Ministers of the Council of Europe.
References
Bassiouni Ch (2003) Reconnaissance internationale des droits des victimes in the collective work of SOS Attentats: Terrorisme, victimes et responsabilité pénale internationale. Calmann-Lévy, Paris, pp 134–185
Fernández de Casadevante Romani C (dir.) (2010) España y los órganos internacionales de control en materia de derechos humanos
Fernández de Casadevante Romani C (2011) El Derecho Internacional de las Víctimas. Porrúa, México
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de Casadevante Romani, C.F. (2012). The Existence of Common Elements in the Different Definitions of Victim. In: International Law of Victims. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-28140-2_4
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