Abstract
It is generally known that criminal justice systems around the world feature vast differences. They vary from strictly adversarial systems (e.g. in Anglo-Saxon countries) to more inquisitorial systems in many jurisdictions on mainland Europe. No matter the incompatibilities between the various systems, nowadays they have one thing in common; they all share the ambition of reform on behalf of victims of crime.1 The roots of these reformist efforts can be traced to the final quarter of the twentieth century. In 1985, two documents were issued urging the international community to enhance the status of victims. The first one is the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.2
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Notes
- 1.
This part is mainly from M.S. Groenhuijsen and R.M. Letschert, Reflections on the Development and Legal Status of Victims’ Rights Instruments, in Groenhuijsen and Letschert, Compilation of International Victims’ Rights, Wolf Legal Publishers, first edition, 2006.
- 2.
A/res/40/34, adopted by the General Assembly in 1985.
- 3.
R(85)11, also adopted in 1985.
- 4.
The only really substantial difference between these two instruments is that the United Nations Declaration is not confined to victims of crime, but also includes victims of abuse of power. Given the crucial importance of abuse of government power in many regions of the world, this additional element is of major significance.
- 5.
Council Framework Decision of 15 March 2001 (2001/220/JHA).
- 6.
See for other international victims’ rights instruments, Groenhuijsen and Letschert, 2006.
- 7.
See M.S. Groenhuijsen, International Protocols on Victims’ Rights and Some Reflections on Significant Recent Developments in Victimology, in R. Snyman and L. Davis (eds.), Victimology in South Africa (pp. 333–351). Pretoria: Van Schaik Publishers, 2005.
- 8.
Art. 7 of the European Union Framework Decision.
- 9.
Art. 5 of the European Union Framework Decision.
- 10.
Art. 13 of the European Union Framework Decision calls on Member States to “promote the involvement of victim support systems responsible for organising the initial reception of victims and for victim support and assistance thereafter […].” For a more detailed account of this see the Statement of Victims’ Rights to Standards of Service, issued by the European Forum for Victim Services in 1999.
- 11.
Art. 10 of the European Union Framework Decision.
- 12.
Art. 12 of the European Union Framework Decision.
- 13.
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime, 2000.
- 14.
The name has been changed into Victim Support Europe.
- 15.
- 16.
See for more detailed information on the UN Declaration, Willem van Genugten, Rob van Gestel, Marc Groenhuijsen and Rianne Letschert, Loopholes, Risks and Ambivalences in International Lawmaking; The Case of a Framework Convention on Victims’ Rights, Netherlands Yearbook of International Law, October 2007, available also through http://ssrn.com/abstract=999315.
- 17.
See the Preamble of Res. 1566, 2004, adopted by the Security Council at the 5053rd Meeting on 8 October 2004. With regard to children, see also the specific provisions in the UN Guidelines on Justice in Matters involving Child Victims and Witnesses of Crime, UN Res. 2005/20, 22 July 2005.
- 18.
Res 1566, Paras. 9 and 10.
- 19.
- 20.
UN Counter Terrorism Strategy under I. Measures to address the conditions conducive to the spread of terrorism, Para. 8.
- 21.
For more information, see http://www.un.org/terrorism/workgroup3.shtml.
- 22.
For the report see ‘Supporting Victims of Terrorism’ (January 2009), available through http://www.un.org/russian/terrorism/report_on_supporting_victims_of_terrorism_OnlinePDF.pdf (last checked March 2009).
- 23.
Ibid, p. 2.
- 24.
Ibid, pp. 26–28.
- 25.
The principles are often referred to as the Van Boven/Bassiouni Principles, referring to the drafters.
- 26.
They were adopted and proclaimed by the United Nations General Assembly on 16 December 2005, after a 15-year period of negotiation. Note that the Preamble mentions that the principles and guidelines do not ‘entail new international or domestic legal obligations, but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary though different as to their norms.’
- 27.
See also Chapter I.
- 28.
See for more information on the Van Boven/Bassiouni Principles, D. Shelton, The United Nations Principles and Guidelines on Reparations: Context and Contents in: K. De Feyter, S. Parmentier, M. Bossuyt & P. Lemmens (eds.), Out of the Ashes: Reparation for Victims of Gross and Systematic Human Rights Violations, Antwerpen: Intersentia 2005, pp. 11–32.
- 29.
- 30.
See for a thorough overview of remedies for human rights violations, D. Shelton, Remedies in International Human Rights Law, Second Edition, Oxford University Press, 2005.
- 31.
This right can be found in numerous international and regional instruments: Article 8 of the Universal Declaration of Human Rights, Article 2 of the International Covenant on Civil and Political Rights, Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Article 39 of the Convention on the Rights of the Child, Article 7 of the African Charter on Human and Peoples’ Rights, Article 25 of the American Convention on Human Rights, and Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Van Boven also refers to provisions in international humanitarian law, such as Article 3 of the Hague Convention of 1907 concerning the Laws and Customs of War on Land, the Protocol Additional to Geneva Conventions of 12 August 1949 relating to the Protection of Victims of International Armed Conflicts (Protocol I, Article 91), and the Rome Statute of the International Criminal Court (Articles 68 and 75). See Theo van Boven, The Right to a Remedy as contained in International Instruments: Access to Justice and Reparation in Treaties and the New United Nations Principles, forthcoming, Bruylant Publishers, 2007, p. 6.
- 32.
Van Boven, 2007, p. 7.
- 33.
See also Chapter VII relating to restorative justice.
- 34.
E/CN.4/2006/98, 28 December 2005, Para. 64.
- 35.
E/CN.4/2006/98, 28 December 2005, Para. 66.
- 36.
It should be noted, however, that the States Parties must adopt an agreement setting up a definition of aggression and the conditions under which the Court could exercise its jurisdiction. A review conference will be held in 2009, during which the matter will be discussed.
- 37.
Marc Groenhuijsen, International Protocols on Victims’ Rights and some Reflections on Significant Recent Developments in Victimology, in: R. Snyman and L. Davis (eds.), Victimology in South Africa, Pretoria: Van Schaik Publishers 2005, pp. 333–351.
- 38.
Sam Garkawe, Victims and the International Criminal Court: Three Major Issues, International Criminal Law Review, 3, pp. 345–365, 2003.
- 39.
Pre-Trial Chamber I, Situation in the Democratic Republic of the Congo: Public Redacted Version, Decision on the Applications for Participation in the Proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, ICC-01/04, 17 January 2006, see further Anne Marie de Brouwer, Reparation to Victims of Sexual Violence: Possibilities at the International Criminal Court and the Trust Fund for Victims and Their Families, Leiden Journal of International Law, Vol. 20, pp. 207–237, at 219, 2007.
- 40.
See for more information http://www.icc-cpi.int/victimsissues.html.
- 41.
See also De Brouwer, 2007, p. 222.
- 42.
Secondary victimisation is defined in CoE Recommendation 2006 (8) as ‘victimisation that occurs not as a direct result of the criminal act but through the response of institutions and individuals to the victim’ (Article 1.3).
- 43.
- 44.
See http://www.icc-cpi.int/library/cases/ICC-01-04-313_English_OnlinePDF.pdf. The Women’s Initiatives for Gender Justice noted in a Request submitted pursuant to rule 103(1) of the Rules of Procedure and Evidence for leave to participate as amicus curiae ‘that the Pre-Trial Chamber should give further consideration to the criteria for determining which victims have a right to participate at different stages of the proceedings. Available through http://www.iccwomen.org/.
- 45.
Trial Chamber I, ICC-01/04-01/06, 18 January 2008, Para. 91.
- 46.
See also Brouwer, A.L.M. de, and Letschert, R.M. (2008). Deelname van slachtoffers in de procedures voor het Internationaal Strafhof: Een papieren tijger. Delikt en delinkwent, 10(81), 1143–1163 and Brouwer, A.L.M. de, and Groenhuijsen, M.S. (2009). The role of victims in international criminal procedure. In G. Sluiter and S. Vasiliev (Eds.), International criminal procedure: Toward a coherent body of law. London, UK: Cameron May, and Jean-Baptiste Jeangene Vilmer, Repairing the Irreparable: Reparations to Victims before the International Criminal Court, preface by Antoine Garapon, Paris: Presses Universitaires de France, March 2009.
- 47.
For an overview of Council of Europe texts relating to victims of violent crimes, including terrorism, see Compendium of Council of Europe Texts, Protection and Compensation of Victims of Violent Crimes, including Terrorism, September 2007.
- 48.
- 49.
See Guidelines of the Committee of Ministers of the Council of Europe on the Protection of Victims of Terrorist Acts, 2 March 2005. The Guidelines are laid down in the Appendix to this chapter. The CoE also adopted Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and the Fight against Terrorism, adopted by the Committee of Ministers at its 804th meeting (11 July 2002), which address victims compensation issues in Para. XVII.
- 50.
Preamble, Para. h.
- 51.
Recommendations of Amnesty International and the International Commission of Jurists to Strengthen the draft Council of Europe Guidelines on Aid and Protection of Victims of Terrorism, Al Index: IOR 61/022/2004, p. 2.
- 52.
The Draft UN Convention on Justice and Support for Victims of Crime and Abuse of Power makes a distinction between immediate assistance, medium assistance and long-term assistance (Article 8). See for the draft http://www.tilburguniversity.nl/intervict/undeclaration/.
- 53.
The right to assistance may be interpreted as an element of a State’s duty to protect the right to life, see also ECtHR, Cyprus v. Turkey, 10 May 2001, Para. 219: “The Court observes that an issue may arise under Article 2 of the Convention where it is shown that the authorities of a Contracting State put an individual’s life at risk through the denial of health care which they have undertaken to make available to the population generally. It notes in this connection that Article 2 § 1 of the Convention enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction.”; see also ECtHR, L.C.B. v. UK, 9 June 1998, Para. 36; and ECtHR, Nitecki v. Poland, 21 March 2002 (decision on the admissibility, Appl. 65653/01, where the Court recalls that “[…] It cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under Article 2”). In OSCE ODIHR Background Paper on Solidarity with Victims of Terrorism, Technical Workshop on Solidarity with Victims of Terrorism, footnote 6.
- 54.
See also Articles 3 and 4 of the UN Basic Principles and Guidelines. The other international instruments (meaning the CoE (2006)8 Recommendation, EU 2001 Framework Decision and the 1985 UN Declaration have not explicitly incorporated this provision.
- 55.
See also Article 12 of the UN Basic Principles and Guidelines and Articles 4, 5, 6, 7 of the UN 1985 Declaration. Rec. (2006)8 only refers to effective access to other remedies, meaning civil remedies (Article 7). Other international instruments do not make explicit reference to access to justice.
- 56.
See also Articles 5 and 9 of the Draft UN Convention.
- 57.
Representative of the UK Bali Bombing Victims Group, Ms. Susanna Miller, see also http://ukbbvgbs.co.uk/.
- 58.
Note also the Preamble of CoE Recommendation 2006 (8): ‘aware of the need for co-operation between states particularly to assist victims of terrorism and other forms of transnational crimes.’ See further Chapter V relating to access to justice.
- 59.
CoE Rec. 2006(8) does cover this aspect in Article 10.9.
- 60.
Conform Article 6 of the 1985 UN Declaration, Article 24 UN Basic Principles and Guidelines, Article 4 EU Framework Decision, Article 6 CoE (2006)8 Recommendation.
- 61.
For an overview of the rise of victims groups in the US after terrorist attacks, see Bruce Hofmann and Anna-Britt Kasupski, The Victims of Terrorism, An Assesment of Their Influence and Growing Role in Policy, Legislation, and in the Private Sector, Occasional Paper, RAND Center for Terrorism Risk Management Policy, 2007.
- 62.
Conform Article 16 1985 UN Declaration, Article 14 EU Framework Decision, Article 12 CoE (2006)8 Recommendation.
- 63.
This study was performed by H.J. Albrecht and M. Kilchling of the Max Planck Institute for Foreign and International Criminal Law and is available at www.coe.int.tjc/.
- 64.
- 65.
- 66.
Specific terms of reference for 2007 of the group of specialists on remedies for crime victims, CJ-S-VICT (2007) 1, 8 February 2007.
- 67.
The CoE Convention on Compensation of Victims of Violent Crime will also be addressed in Chapter VI.
- 68.
For a collection of the principal OSCE commitments and primary texts of the global legal framework for action against terrorism, see OSCE Commitments and International Legal Instruments Relating to Terrorism, A Reference Guide, July 2003.
- 69.
See for the final report, ODIHR.GAL/23/06, 25 April 2006, Technical Workshop on Solidarity with Victims of Terrorism, 9–10 March, Oñati, Spain.
- 70.
Final Report, p. 4.
- 71.
Final Report, p. 7.
- 72.
The Final report of this meeting is available through the OSCE/ODIHR website.
- 73.
See Letschert, R.M., and Pemberton, A. (2008). Addressing the needs of victims of terrorism in the OSCE region. Security and Human Rights, 19(4), 298–310 and Pemberton, A., and Letschert, R.M. (2009). Victims of terrorism in the OSCE (Organization for Security and Co-operation in Europe) region. Analysis of a questionnaire on the practice of OSCE participating states on solidarity with the victims of terrorism. Report commissioned by the OSCE Office for Democratic Institutions and Human Rights. Warsaw, Poland: OSCE Office for Democratic Institutions and Human Rights.
- 74.
According to its Constitution, the EFVS was set up to: (a) promote the development of effective services for victims of crime throughout Europe; (b) promote fair and equal compensation for all victims of crime throughout Europe, regardless of the nationality of the victim concerned; and (c) promote the rights of victims of crime in Europe in their involvement with the criminal justice process and with other agencies. For more information, see http://www.victimsupporteurope.eu/
- 75.
From Groenhuijsen and Letschert, 2006, pp. 11–13.
- 76.
Due to constraints of space further comment on these highly inspirational standards is not possible. It suffices to say that this level of sophistication has not yet been achieved (or even approximated) by even the most advanced countries.
- 77.
The statements of the European Forum for Victim Services can be found through http://www.victimsupporteurope.eu/.
- 78.
See for instance the Green Paper on Compensation to Crime Victims, Brussels, COM (2001), 536 final, 28.9.2001. See further Albrecht and Kilchling, 2005, p. 9.
- 79.
For more information on the background to the adoption of the Framework Decision, see Paul Rock, Constructing Victims’ Rights: The Home Office, New Labour and Victims, Oxford, Oxford University Press, 2004.
- 80.
It should be noted that the meaning of ‘victim’ in the Framework Decision on Combating Terrorism appears ambiguous.
- 81.
For example, see the statement held at the Informal Consultations of the Plenary of the General Assembly on a Counter-Terrorism Strategy; Statement by Minister Alexander Marschik, Deputy Permanent Representative of Austria to the United Nations, on behalf of the European Union: ‘We agree that the United Nations can and should promote international solidarity in support of victims, including by exploring the possibility of providing assistance to the victims of terrorist acts and their immediate families, and that States should consider putting in place a system of assistance that would promote the rights of victims and their families.’ New York, 11 May 2006.
- 82.
The Hague programme calls for the establishment of an integrated EU arrangement for crisis management with cross-border effects to be implemented at the latest by 1 July 2006. Adopted on 13 December 2004, Doc. No. 16054/04, p. 20.
- 83.
This programme was preceded by the Declaration on Combating Terrorism which also contained a Declaration on Solidarity against Terrorism that confirmed the firm intention of Member States to ‘mobilise all the instruments at their disposal, including military resources, to assist a Member State or an acceding State in its territory at the request of its political authorities in the event of a terrorist attack.’ Doc. No. 7906/04, adopted on 25 March 2004.
- 84.
- 85.
Contrary to directives, framework decisions will have no direct effect if the implementation period has expired. However, in the Pupino case, the European Court of Justice concluded that the principle of conforming interpretation is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union. It points out, however, that the obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law is limited by the general principles of law, particularly those of legal certainty and non-retroactivity. Furthermore, the principle of conforming interpretation cannot serve as the basis for an interpretation of national law contra legem, Judgment of 16 June 2005, in Case C-105/03, Pupino.
- 86.
See further Van Genugten, Groenhuijsen, Van Gestel and Letschert, October 2007.
- 87.
There is some evidence that the existence of a European set of standards could influence domestic policies and possibly legislation. Note from an ODIHR report that ‘participants from the UK highlighted the influence of the international framework in the domestic panorama. The international legal framework on the protection of victims has had a major influence on the Bill of Rights of Northern Ireland. Among other things, the Bill creates the post of Interim Commissioner for Victims and Survivors, who coordinates the delivery of services to victims and survivors across departments and agencies, reviews how well the current funding arrangements in relation to victims and survivor groups are addressing the need and considers the practical issues around establishing a Victims and Survivors Forum. Moreover, a Victims’ Minister has been created to improve the overall coordination. In the UK, on 1 April 2007 the Victims’ Code of Practices for the police will enter into force, establishing tight deadlines for the police to inform victims on the progresses of trials’, see OSCE ODIHR Technical Workshop on Solidarity with Victims of Terrorism, Final Report, 9–10 March 2006, Oñati Spain, ODIHR.GAL/23/06, p. 7.
- 88.
Green Paper Compensation to Crime Victims, Brussels, COM (2001) 536 final, 28.09.2001, p. 6.
- 89.
EU Solidarity Programme on the Consequences of Terrorist Threats and Attacks, Doc. No. 15480/04 Brussels, 1 December 2004, p. 4.
- 90.
Albrecht and Kilchling, 2005, p. 12.
- 91.
Conform the OSCE Final Report, p. 4.
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Albrecht, H.J., and Kilchling, M., Victims of Terrorism Policies and Legislation in Europe, An Overview on Victim related Assistance and Support’, Max Planck Institute for Foreign and International Criminal Law, October 2005, available at www.coe.int.tjc/
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OSCE ODIHR Background Paper on Solidarity with Victims of Terrorism, Technical Workshop on Solidarity with Victims of Terrorism, 2006
OSCE Commitments and International Legal Instruments Relating to Terrorism, A Reference Guide, July 2003
Recommendations of Amnesty International and the International Commission of Jurists to Strengthen the draft Council of Europe Guidelines on Aid and Protection of Victims of Terrorism, Al Index: IOR 61/022/2004
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Internet publications and relevant websites
UN and the Fight Against Terrorism http://www.un.org/terrorism/index.shtml
CoE and the Fight Against Terrorism http://www.coe.int/t/e/legal_affairs/legal_co-operation/fight_against_terrorism
EU and the Fight Against Terrorism http://ec.europa.eu/justice_home/news/terrorism/index_en.htm
http://www.eurunion.org/partner/EUUSTerror/EURespUSTerror.htm
Victims Support Europe http://www.victimsupporteurope.eu/
European Legislation http://eur-lex.europa.eu/en/index.htm
ICC Victim and Witness Issues http://www.icc-cpi.int/victimsissues.html/
International instruments
United Nations
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, GA Res. 40/34 of 29 November 1985
Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, ECOSOC Res. 2000/14, 2000 and Basic Principles on the Use of Restorative Justice Programmes in Criminal Matters, ECOSOC Res. 2002/12, 2002
Convention against Transnational Organized Crime, Articles 1, 14, 24, and 25, 2000
Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime, 2000
Res. 1566, 2004, adopted by the Security Council at the 5053rd Meeting on 8 October 2004
Guidelines on Justice for Child Victims and Witnesses of Crime, ECOSOC Res. 2005/20, 2005
Basic Principles and Guidelines on the Rights to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, GA Resolution 60/147, 2005
International Criminal Court
Statute of Rome to establish the International Criminal Court, 1998
Rules of Procedure and Evidence, Section III, Victims and Witnesses, 2002
Regional instruments
Council of Europe
European Convention on the Compensation of Victims of Violent Crimes, Strasbourg, 24.XI.1983 (CETS 116)
Recommendation (1985)11 on the Position of the Victim in the Framework of Criminal Law and Procedure, adopted on 28 June 1985
Recommendation (1999)19 concerning Mediation in Penal Matters, adopted on 15 September 1999
Council of Europe Convention on the Prevention of Terrorism, Warsaw, 16.V.2005 (CETS 196)
Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and the Fight against Terrorism, adopted by the Committee of Ministers at its 804th meeting, 11 July 2002
Guidelines of the Committee of Ministers of the Council of Europe on the Protection of Victims of Terrorist Acts, 2 March 2005
Recommendation (2006) 8 on Assistance to Crime Victims, adopted on 14 June 2006
OSCE
Permanent Council Decision 618 on Solidarity with Victims, 1 July 2004
European Union
Framework Decision on the standing of victims in criminal proceedings (2001/220/JHA), 15 March 2001
Directive 2004/80/EC relating to Compensation to Crime Victims, 29 April 2004
Statements issued by the European Forum for Victim Services (now Victim Support Europe)
The Social Rights of Victims of Crime, August 2001
Statement of Victims’ Rights in the Process of Criminal Justice, September 2001
Statement of Victims’ Rights to Standards of Service, September 2001
Statement on the Position of the Victim within the Process of Mediation
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Letschert, R. (2009). International Initiatives and Activities Focusing Specifically on Victims of Terrorism, Including Existing International Instruments. In: Letschert, R., Pemberton, A., Staiger, I. (eds) Assisting Victims of Terrorism. Springer, Dordrecht. https://doi.org/10.1007/978-90-481-3025-2_2
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