Human Dignity, Rights and Victim Participation in Criminal Justice

Abstract

Human dignity is the cornerstone of human rights and central to the Treaty on European Union (EU) and the EU Charter of Fundamental Rights. It is embedded within constitutions across EU countries. This strong commitment to human dignity has given rise to extensive reflection on its centrality to correcting rights violations, inequality, discrimination and the oppressive conduct of state institutions. This article explores the work that human dignity does for people victimised by crime in the EU. We argue that the agentic human, central to the idea of victim participation, originates in human dignity. However, using a dignity lens, an analysis of victims’ rights documents and rights research reveals a paradox within the victim-friendly civil law jurisdictions of Europe. That is, the procedural position of the victim established in tradition and law is undermined by justice professionals’ attachment to the idea of the state’s ownership of the violation. We then discuss jurisprudence of the European Court of Human Rights relevant to the protection of human dignity to identify how this tension between the protection of individual victim rights, especially the right to remedy, and public interest is adjudicated. We suggest that the Court’s attention to individual rights should be harnessed by victim rights advocates and lawyers. While the victim’s procedural role matters to their substantive and meaningful participation in criminal proceedings, it is their right and capacity to act independent of the state that may matter more.

Introduction

Europe is arguably the “birthplace of human dignity as a philosophical and constitutional concept” (Dupré, 2013, p. 319). From the ashes of mass atrocity and destruction in twentieth century Europe,¹ human dignity came to be centred in the Treaty on European Union (EU) in its second Article, and as the first Article of the EU Charter of Fundamental Rights.² Human dignity has become “the cornerstone of the entire structure of human rights” (Dearing, 2017, p. 142). Further, 19 of the 27 countries in the EU refer to human dignity within their constitutional documents.³ This strong constitutional commitment to human dignity within the EU has given rise to extensive reflection on its centrality to correcting rights violations, inequality, discrimination, and the oppressive conduct of state institutions.⁴ To be victimised in these (and other) ways is to be made less than in a community of moral and political equals (Hampton, 1998). Further, to become a victim—as a member of a group and/or as an individual—is said to become somehow passive and be disempowered (van Dijk, 2009). The relationship of human dignity to the affront of victimisation and to its correction is generally assumed. Indeed, we will argue that the agentic human, central to the idea of victim participation, originates in human dignity. But how precisely dignity is related to the correction of violation is explored in this article through legal and case developments on victims in criminal justice within Europe.

The centrality of human dignity for victims appears “intuitive” but, how it is understood concretely is “elusive” (Giannini, 2016, p. 43). While human dignity is easily evoked in circumstances of egregious state wrongs and atrocities or in “exceptional cases”, it is less associated with those that are “routine” (Niemi, 2021, p. 289). In this article we “find the use of dignity” (McCrudden, 2008, p. 722) in exploring its relationship with victim participation in the routine of criminal justice in Europe. To do so, we provide broad assessment of the use of human dignity in victims’ rights through two of the EU’s key institutions, the EU Agency for Fundamental Rights (FRA) and the European Court of Human Rights (ECtHR) both of which have distinct roles in relation to adherence to and compliance with human rights. On the first, we analyse international and European victim-related instruments and reform and draw on research, led by the second author, and conducted by FRA that examined the experience of victims and justice professionals across Europe. We next consider, through the lens of selected European human rights case law, more specifically victims’ human rights and their involvement in the civil legal traditions relevant to most EU countries. In doing so, we apply the analytic of negative and positive obligations imposed on duty-bearers of human rights (Shelton & Gould, 2013). We argue for the relevance of a negative duty on state entities of criminal justice to refrain from using victims for its own ends plus a positive obligation to enable and support victim participation in Europe’s diverse criminal justice. While the ECtHR’s jurisprudence is directly relevant to the victim’s human dignity and participation, we briefly discuss how its decisions are situated in the paradox of criminal justice conceptual frameworks that reduce the person to a thing; a point recently considered by the German Constitutional Court. To begin, it is first necessary to examine human dignity, how it is conceptualised and, very briefly, its history.

Human Dignity, Its (many) Meanings and Associations

Human dignity is a concept that does a lot of work in contemporary human rights discourse. It is also notoriously slippery. Scholars from diverse disciplinary backgrounds offer a range of conceptualisations of human dignity. It as a “background norm” (Giannini, 2016, p. 46), “an organizing principle” (High, 2022, p. 3) and a “value” (Niemi, 2021)—even an “existential value” (Kateb, 2011, p. 11). Still others depict human dignity as an act of imagination (Stevenson, 2014). Scholars argue diametrically opposed views that “there is no such thing as a right to dignity” (O’Mahony, 2012, p. 551) or that it is a “constitutional right” (Barak, 2015, p. 12). To these are offered less complimentary attributions to human dignity: it is a “shibboleth”,⁵ “useless” (Maclin, 2003), “messy and fluid” (Giannini, 2016, p. 46) or simply that it is “a usefully capacious rhetorical device” (High, 2022, p. 4).

Notwithstanding these assessments, there is a shared understanding of dignity as something inherent to being human. McCrudden calls this the “ontological” claim. To this, agreed as part of a common core to the concept of human dignity, he adds a further two. The second, he writes “might be called the ‘relational’ claim’”. That is, “this intrinsic worth should be recognized and respected by others, and some forms of treatment by others are inconsistent with, or required by, respect for this intrinsic worth”. The third common core is the limited-state claim dealing with “the relationship between the state and the individual. This is the claim that recognizing the intrinsic worth of the individual requires that the state should be seen to exist for the sake of the individual human being, and not vice versa” (McCrudden, 2008, p. 679).

It is this last of a minimum core that we emphasise in this article. We agree with contemporary understanding that human dignity is “not simply a nice idea or a philosophical or spiritual concept but that it shapes the legal relationships between people and their governments and gives rise to enforceable rights” (Daly, 2022 pp. 19, 24). We suggest it is this focus on the legal relationships between people and their governments and its instrumentalities that puts the spotlight on the state’s duties, both for restraint and to enable. In the context of criminal justice, respect for human dignity requires the state create and maintain space(s) for citizens to act as rights-bearers who both make claims on and accept responsibility for each other. The state cannot use the individual as it sees fit whether as an accused person, victimised person, other witnesses or in the prisoner.

These assertions raise questions about how and why human dignity has come to occupy such a central place in the rights canon generally and in Europe especially. At a fundamental level, humans—individually and collectively—require a normative language that enables them to make demands on themselves and others and to act in affirmation or opposition to such normative demands (Roughley & Bayertz, 2019). In the European Enlightenment human dignity emerged as a concept to, in part, act as a deontological non-secular basis for universality, against the claims of Church and King. Philosopher Immanuel Kant strengthened its importance by arguing that individuals be treated as ends and not simply as means to an end.⁶ Kant’s imperative on human dignity has come to underscore understanding of individual reason, autonomy and agency. Over time, these ideas served to create a strong distinction between individuals as sovereign agents and decision-makers and a state apparatus with a propensity to do as it wants with its citizens (Dearing, 2017).

Perhaps ironically given Europe’s long history of war, colonisation and enslavement, human rights and human dignity emerged after the Second World War as one of the building and founding principles capable of integrating a plurality of peoples, worldviews, and religions; and potentially enabling peaceful—largely non-violent—co-existence. Human rights were for each and each other.⁷ Of course, we stress it is the potential of the concepts and their capability given that both human dignity and human rights still wait to be fully realised throughout Europe. Nonetheless, human dignity and human rights in contemporary times specify the individual as the ultimate point of reference for constraint of the state. As Daly (2012) writes,

This undergirding value— simply stated—is that human beings matter; they matter in and of themselves, just because they are human, and they matter to the state; they are not fungible or dispensable, and they are all fundamentally equal. (2012, p. 103)

Human dignity argues in some manner to provide a way to resist humiliation, degradation, and domination.

Documenting Human Dignity in Rights

From our (partial) depiction of human dignity, we see its reification come through the United Nations (UN) treaty system. In 1948, the Universal Declaration of Human Rights (UDHR) saw the term appear twice in the Preamble and within Article 1. Both the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR) state that all human rights derive from the inherent dignity of the human person. Other international human rights treaties also ground their status in the shared dignity and equality of persons.⁸

Human dignity is embedded in other key international instruments relevant for victims. The 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment specifies that the rights therein derive from “the inherent dignity of the human person”.⁹ The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) (the ‘UN Victims’ Declaration’) asserts that “victims should be treated with compassion and respect for their dignity” (s 4).¹⁰ The Rome Statute establishing the International Criminal Court (ICC) stipulates that the Court shall protect the dignity (amongst others) of victims and witnesses (Article 68).¹¹ These commitments are reaffirmed in the 2005 UN Remedy & Reparation Declaration in Relation to Gross Violations of International Human Rights Law and Humanitarian Law.¹² Here the association is linked both to the affront of the violations/victimisation (Preamble) and to judicial remedy (s 22d). Each instrument, however, uses different terms to emphasise the obligation of states, from should to shall.

Finally, while human dignity was implied in the 1953 EU Convention on Human Rights, it came to sit high in the EU Treaty as the second Article.¹³ Subsequently, the first Article of the EU Charter of Fundamental Rights (becoming legally binding in 2009) (2012/C 326/02) (‘the Charter’) proclaimed boldly that: Human dignity is inviolable. It must be respected and protected.

Human Dignity and Victim Reforms in Europe

Tracing how this duty and related others was transposed and implemented across Europe reveals a mixed story. In constitutional and judicial terms, dignity strengthened (Daly, 2022; Dupré, 2013, 2015). However, in victim-related reforms human dignity became dissipated and softened. The earliest instrument, the 2001 European Council Framework Decision on the standing of victims in criminal proceedings (the Framework Decision),¹⁴ included “respect for the dignity of the individual” in Article 2. Here human dignity was described as the “root of all other concrete victims’ rights” (Groenhuijsen & Pemberton, 2009, p. 48). However, the replacement 2012 EU Victims’ Rights Directive¹⁵ dissipated it to Article 18 (protection of victims in criminal proceedings). From this instrument, the softening happened in three key ways. First, dignity became associated with ‘special’ or ‘vulnerable’ victims (the Victims’ Directive, paragraphs 16, 38, 52). This association in turn rested on older entrenched notions of deserving or innocent victims to whom the state’s resources and sympathy were directed (Holder, 2023). Second, dignity was expressly linked to other terms such as ‘respect’ and hence was transmuted in service statements across the continent into an exhortation – that victims should be treated in a “respectful, kind and polite manner” (VOCIARE, 2019, p. 58; and see Rasquete et al. 2014). Being nice to victims was underpinned by near universal adoption of procedural justice as an inter-personal or inter-actional construct (Tyler & Bies, 1990), an orientation that obscured the obligations of the state and its instrumentalities. Third, the ideas of agency and autonomy as manifestations of human dignity were tempered as features of choice or associated with a therapeutic objective of empowerment (Dunn & Powell-Williams, 2007). Of course, none of these outcomes are bad in themselves. However, the universality of human dignity was lost, its stringency was submerged, and the arrangement of the state institutions of criminal justice remained undisturbed.

Nevertheless, if the strength of human dignity was weakened in formal instruments, perhaps we see this dominance of state institutions in criminal justice is more potently disturbed by the nature of Europe’s civil law systems? It is well known that state authorities in common law countries substantively usurped the role of the crime victim as an independent actor (for England and Wales see, for example, Langbein, 2005). However, Europe’s civil legal systems have been held up as somehow being more victim friendly (Creaton & Pakes, 2012; and see Doak, 2008, p. 286). Although there are shared historical roots to the legal systems of some European countries,¹⁶ there are clear differences in relation to the role and status of the victim (Braun, 2019). These differences were examined in a major programme of research conducted by the EU Agency for Fundamental Rights (FRA) led by the second author. The research assessed if the victim-friendly perspective on civil law systems, as well as country compliance with the Charter of Fundamental Rights, stood up to scrutiny. Here we highlight the FRA’s categorisation of types of criminal legal system in Europe, the ways in which victims are conceptualised across and within these and offer selected quotations from FRA’s primary research as illustrative of the main findings relevant to the role and participation of victims.

For the first part, three main types of criminal justice system in Europe were categorised to three dimensions (left column, Table 1). Those with the strongest position for the victim of violent crime, where individuals may act as a party to proceedings, were categorised as Type 1 countries. As a party, the individual may act from a position of relative equality vis a vis the state. In counterpoint, the state is the dominant if not sole decision-maker in Type 2 and 3 countries and victims are witnesses or claimants.

Table 1 Comparison of EU criminal justice system types and victim role

Next, in addition to these differences in the formal position of the crime victim in European legal systems, the FRA research identified five models of the victim’s role. These models were carefully not described as discrete delineations to a specific system but rather identified as ways in which the victim was or was not recognised and involved at different stages and for which different purposes. The five models were:

• 1. “the victim reduced to a witness serving to deliver evidence in the public interest;

• 2. the damaged victim being allowed to pursue civil law claims to restitution on a civil-law side-track added to the criminal proceedings;

• 3. the harmed victim conceptualised as an individual in need and deserving of sympathy and help;

• 4. the wronged victim acknowledged as the individual whose rights are violated and who, therefore, is entitled to redress; and finally,

• 5. the victim not only acknowledged as the person wronged but, consequently, also recognised as entitled to a role as a party to the criminal proceedings” (FRA, 2019a, p. 15, emphasis in original).

Finally, the FRA research next examined whether these models of the victim role made a difference in the main types of legal system found in Europe. Researchers interviewed 148 practitioners active in criminal proceedings and 83 adult victims of violent crimes drawn from seven countries: Austria, France, Germany, the Netherlands, Poland, Portugal and the United Kingdom¹⁷ (FRA, 2019b, p. 17). Across all countries in the research, seven out of 10 victims interviewed would have liked to have more opportunities to be involved in the proceedings. This dissatisfaction was highest in those countries where victims had stronger participation rights (Type 1 legal system—Austria, Germany, Poland and Portugal). The authors hypothesise that this “paradox” may arise from people’s higher expectations of the law in action in those countries (FRA, 2019b, p. 22). As one German victim interviewee commented,

That’s what I wonder about to this day, whether I made a difference at all […] the way you function as joint prosecutor, in a very limited way, you are just one link in a chain, not really the central person. [Testifying as a witness] is the only moment where you have the possibility to contribute something yourself […]. Otherwise, it is like you are imaginarily tied up and closed off. You can watch, shake your head or cry, but you are not allowed to interact. (FRA, 2019b, p. 26)

Interviews with criminal justice practitioners revealed a similar paradox. A strong majority (69%) of those in Type 1 countries indicated that the victim role was primarily as a witness while 38% of those in Type 2 countries agreed. The same pattern was revealed in responses to the question whether they perceived the victim as a party to proceedings. Here 20% of practitioners in Type 1 countries agreed, as opposed to 54% of those in Type 2 countries (FRA, 2019, p. 29). These perceptions completely flip the actual legal status of victims in the relevant legal system. Comments from practitioners in Type 1 countries exemplify the flip. A judge in Poland commented that “[t]he victim is, first of all, a provider of facts for the justice system.” A public prosecutor in Austria observed that,

The victim is a witness, both—victim and witness. However, we are a prosecution authority, not a victim protection authority, thus the victim is relevant for us as a witness, whom we need in order to convict the offender. (FRA, 2019b, p. 30)

Both comments ignore that crime victims in Poland and Austria (Type 1 countries) are entitled to access justice as an independent party in criminal proceedings. Both comments instead instrumentalise the victim and treat the person as an object that is useful for the state’s purpose. A member of a German victim support organisation interviewed in the FRA research concurred by saying that, “I think it has become the norm for victims to be reduced to an object or instrument by the several actors involved, also due to an overburdening of the system” (FRA, 2019b, p. 30). Finally, both comments demoralise the autonomy and agency of the individual victim; that is, they fail to respect the victim’s human dignity.

In concluding this section, we make two observations. First, despite the adoption of harder law in the 2012 EU Victims Directive, a 2013 Guidance Document for Member States on implementing the Directive and the launch of an EU Strategy on Victims’ Rights in 2020, it seems that “full potential [of the Victims Directive has] not been reached yet” (European Commission, 2022, p. 5). Indeed, the dissipation of human dignity as a human right in victim-related reform may have reached such a low point that it is mentioned once in a recent evaluation and only as a victim “need” (European Commission, 2022, p. 9).¹⁸ Second, irrespective of the type of legal system within Europe and the model of victim role within these, victims’ inclusion and participation are assessed poorly by victims themselves. The FRA research points to the ascendance of state interests over those of individual victims across variations to the civil legal systems studied. Clearly the more usual levers for strengthening individual rights have not had the desired effect. In the next sections we look to the judicial sphere and judgements of the European Court of Human Rights (ECtHR) relevant to the Convention rights of individuals who have become victims of crime.

Negative and Positive Obligations in Human Rights

If Member States and victim support organisations in Europe have allowed human dignity to dissipate, the “power relationship between individuals and the state, and its (re)balancing in favour of human beings [remains] a recurring issue in dignity case law” (Dupré, 2015, p. 268).¹⁹ Established in 1959, the ECtHR rules on individual or State applications alleging violations of the civil and political rights set out in the European Convention on Human Rights (ECHR). The Court responds to the requirement on State Parties in Article 1 of the Convention to “secure to everyone within their jurisdiction the rights and freedoms" contained therein. As human dignity is implied in the Convention, it is indirectly engaged by the Court. It receives over 44,000 such applications a year (ECtHR, 2021). This securing of rights encompasses negative and positive obligations imposed on states as duty-bearers (Shelton & Gould, 2013, p. 569). For our purpose we draw on this negative/positive analytic to consider the relationship between the autonomy of individuals who are victims of crime and the state’s negative obligations to respect human rights, and between victim agency and the state’s positive obligations. Negative obligations require states to refrain from interference and positive obligations impose requirements for the active protection of rights. Put simply as protecting individual freedom from and enabling their freedom to (High, 2022, p. 22). Both types of obligation, we will argue, provide substantive and procedural justification for victim participation in European criminal justice, especially in investigation and decisions to prosecute. The appendix provides those cases that are particularly relevant to this discussion.

A Negative Obligation to Respect the Victim’s Human Rights

In re-balancing the power relationship of states with individuals, the Court’s jurisprudence imposes negative state obligations “as a defence against actions which seek to disavow the status of a person of each human being. It is therefore each individual who is to be protected against the actions of other individuals capable of harming his or her dignity or against the actions of governmental authorities” (Becchi, 2019, p. 9). In its origins, this emphasis reflects “horror”²⁰ at the state’s violation of human dignity by, for example, torture or killing. A negative obligation on the state is a brake or limit.

Sometimes referred to as a duty not to act, Member States have a negative obligation to refrain from action that would violate, hinder, or undermine human rights. Outside Europe, this obligation has been pursued to address impunity in human rights violations, whether singular or mass violations. For example, the Inter-American Court of Human Rights found in the 1988 case, Velásquez-Rodríguez against Honduras, addressed state inaction in failing to investigate the detention and disappearance of a civilian. This Court found violation of rights to liberty, humane treatment and right to life. In so doing, the Court also held that the State’s failure “to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdictions” required more than the simple provision of a country legal system as a deterrent.²¹

This requirement to do more than provide a framework for possible responses to infringements of human rights—commonly the criminal law—has also evolved in Europe to bring the negative obligation Member States into close relation with their positive obligation to actively protect rights. A point made in the Court’s decision in Z v Finland (1997) regarding the privacy of medical records from the public record. Further, in cases involving sexual and physical violence against private individuals by other private individuals, the Court not only considered that human rights had been violated by actions of the relevant Member State, but that it also failed to act in a certain way. In its judgement in X & Y v The Netherlands (1983), the Court considered not only the State’s obligation not to interfere with private life, but that effective respect requires some positive action. It found a violation of Article 8 for Y—a young woman with mental impairment who was resident in a special home—in that there was no effective protection for her in relation to sexual abuse committed by a private person. This case marked a beginning in the shift towards State obligation to “secure” rights “even in the sphere of the relations of individuals between themselves” (para 23). Effective protection of the right to private and family life were reiterated by the Court in Baegen v Netherlands (1994), Doorson v Netherlands (1996) and Menteş and Others v Turkey (1997) respectively dealing with sexual victimisation of an adult, witness anonymity, and victims whose homes were burned down by authorities.

Following these early cases, others involving lethal violence by private individuals against other private individuals have consolidated this relationship between negative and positive obligation. In its judgement in MC v Bulgaria (2003), involving an allegation of rape, the Court found violations of both Articles 3 (prohibition against torture, inhuman pr degrading treatment) and 8 (respect for private and family life). Here the Court emphasised the obligation of authorities to explore all facts put before it, not only those that suited a dominant cultural narrative about sexual crimes, in a manner that should, in principle, be capable of leading to the establishment of the facts of the case and to the identification and punishment of those responsible. In Danciu and Others v. Romania (2020), the absence of a prompt and effective investigation into an attempted killing of a private person by others was also found in the violation of the right to life (Article 2). In other domestic homicides cases before the Court—Y and Others (2022) and Landi (2022)—the obligation for an effective response was extended to include taking preventive action against recurring violence.

Positive Obligations to Secure the Victim’s Human Rights

Taken together, these identified cases suggest that the negative/positive analytic may not be so absolute (Lavrysen, 2017). Nonetheless, the analytic becomes sharper when focused on the positive obligations on State Parties. From the setting of limits, there are several ways in which a positive obligation on states has been developed in cases brought before the Court that are protective of rights and enabling of human dignity. Indeed, the capaciousness of human dignity as a concept created space for challenge of state actions or inactions, particularly where, as in criminal justice, it has unambiguous obligations to the accused person (Roach, 2011). Here we find the Court’s jurisprudence taking seriously the shared interest of accused, victim and community in fair, proportionate and reasonable balancing of human rights. Human dignity introduces a way to evaluate how this should be done. Here we examine how the right to an effective remedy (Article 13 of the Convention and Article 47 in the Charter) and the right to a fair trial (Article 6 of the Convention and Article 47 in the Charter) have been pivotal to understanding both positive obligation and its relationship to human dignity.

The earliest cases, McCann and Others in 1995, Aksoy in 1996, Aydin and Mentes and Others in 1997, dealt with the negative obligation on state agents not to commit unlawful acts (Appendix). In these cases the Court linked its determination to the applicant’s right to an effective remedy as a positive obligation requiring investigative procedures. In Aydin, for example, the Court held that,

the notion of an ‘effective remedy’ entails, in addition to the payment of compensation where appropriate, a thorough and effective investigation capable of leading to the identification and punishment of those responsible and including effective access for the complainant to the investigatory procedure. (Aydin v Turkey 25 EHRR251, 98)

Similarly, in Osman v UK (1998) involving the killing of an adult and wounding of a child, while the Court did not find violations of Articles 2 or 8, it did observe the critical obligation from Article 1 that Member States “secure the practical and effective protection of the rights and freedoms” contained within the Convention. It further found that there had been a disproportionate restriction on the applicants’ right of access to a court to seek a remedy from police violation of Article 6.²²

As in Danciu and Others, the case of Janković v. Croatia (2009)—involving a woman seeking an investigation into an alleged assault—the Court not only found authorities had failed in their negative obligation to protect her physical integrity but had also violated her Article 8 right to privacy and respect for a private life in failing to conduct an effective investigation and prosecution. In Danciu, the Court reiterated the requirements as “not an obligation of results, but of means”.²³ Sometimes also called a “right to justice” (Doak, 2008, p.159), these arguments have been affirmed in cases involving non-state actors such in Edwards (2002) and by the UK High Court in DSD and NBV v The Commissioner of Police for the Metropolis.²⁴ In these cases, and numerous others concerning violence,²⁵ the Court’s “emphasis shifts from protecting the (harmed and vulnerable) victim from criminal proceedings conducted by state authorities towards asserting and defending the victim’s rights through these proceedings” (FRA, 2019a, p. 18). The shift is, in essence the duty-obligation on states to enable victim participation.

The importance of the Convention Article 13 and Charter Article 47 to human rights and dignity also lie with the Court’s insistence on victims’ involvement in proceedings and that this was not inconsistent with Article 6 fair trial rights. In its 2001 judgement in PS v Germany, the Court considered that,

In appropriate cases, principles of fair trial require that the interests of the defence are balanced against those of witnesses or victims called upon to testify, in particular where life, liberty or security of person are at stake, or interests coming generally within the ambit of Article 8 of the Convention. (PS v Germany 36 EHRR 61, 22)²⁶

While the victim in PS v Germany (2003) had sought anonymity, the insistence on victims’ inclusion has emerged more clearly in recent ECtHR jurisprudence.²⁷ Specifically, the Court clarified in Kolpak v Russia (2012) that the right to an effective remedy required that,

[t]he minimum standards of ‘effectiveness’ defined by the Court’s case-law also require that the investigation must be independent, impartial and subject to public scrutiny, and that the competent authorities must act with exemplary diligence and promptness […]. In all cases the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests […] (Kolpak v. Russia, 41408/04, 2012, 62)²⁸

Victim inclusion does not, of course, derogate from the safeguards and counterbalancing measures protecting the accused right to fair trial and the principle of the equality of arms, but one which is a “fair balance”.²⁹ Thus, as the FRA argued, the principle “demands that the victim must have the same means of determining the contents and the course of the proceedings and must have the same access to effective remedies in cases where the victim feels that their participation rights are not being respected” (2019a, p. 31 and see also p. 12).

The key characteristic of States positive obligation is the duty upon them to undertake specific affirmative tasks—be this effective investigation, due diligence in addressing recurring violence, protections to private life and bodily integrity, and protections in proceedings. Although the cases discussed above did not directly engage alleged violations of human dignity, the constraints and obligations imposed on Member States through the judgements go to the intrinsic nature of dignity to human rights as the “very essence of the Convention”.³⁰Securing victims’ human rights also secures dignity.

Human Dignity and the Assertion of Rights Violation

The different though inter-related arguments for negative and positive obligation to protect human rights and those for victims’ rights have not, to date, dealt with alleged violations of dignity itself. For persons victimised by another—say by murder—the widespread understanding is that they have been subjected to an alleged breach of the criminal law. It is not commonly accepted that this victimisation is also a violation of rights, in this example the right to life.³¹ Rather, States within Europe and across the globe have declared that such acts are committed against the public and not an individual. The central justification for the assertion is that it is for the State to punish in the interests of public order. However, the “paradox” is that criminal law also protects individual freedoms; protection that creates a “horizontal effect” into human rights (Tulkens, 2011, p. 583). A recent judgement by the German Constitutional Court (Bundesverfassungsgericht—BVerfG) illustrates this effect.

Although a domestic court, jurisprudence from the BVerfG is extremely influential across the EU. This Court considers cases involving the Basic Law for Germany, the first Article of which is that:

Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.³²

BVerfG judgements therefore necessarily directly engage with dignity, as in a case brought before it in 2020. In its judgment on the case, the BVerfG centred human dignity as the substantive justification for decision. The case involved a woman who alleged she had been unlawfully restrained in a psychiatric facility and, further, that prosecution authorities discontinued preliminary proceedings filed by her, according to her procedural rights, against four persons involved in varying official (and other) capacities in her restraint.³³ In the matter, the BVerfG centred human dignity at three levels. The Court found that, firstly, the crime the victim suffered was essentially a dignity violation (a disregard for her autonomy as a patient) as opposed to a violation that caused her harm. Secondly, that her entitlement to an authoritative refutation of the crime in the form of criminal proceedings is based on human dignity; the proceedings must restore her dignity. Thirdly, that the victim’s position in the proceedings must do justice to her dignity, i.e. demonstrate her procedural recognition. Notwithstanding that the medical authorities had not intended to cause harm and, indeed, had acted from a best interest’s assessment, the BVerfG has understood the protection of physical integrity as the protection of the autonomy of the individual with regard to their physical integrity.

The BVerfG judgement can be interpreted as insisting that the individual must be spared the experience of being entirely subjected to and at the mercy of another's will, with all the consequences that such an experience has for the individual's self and trust in others. The decision asserts that the victim's right to criminal proceedings expresses their right to have their dignity confirmed and restored by the criminal court. The decision echoes the observation that dignity is “the recognizable capacity to assert claims” (Feinberg, 1970, p.182). A capacity demonstrated by the individual’s legal status or standing.

Concluding Discussion: Human Dignity and Victim Participation

The BVerfG decision returns us to the philosophical foundations of human dignity and, in consequence, its use for victim participation in criminal justice. Kant’s imperative holds that individuals be treated as ends in themselves and not as a means to others’ ends. Necessarily, respect for human dignity carries a “prohibition against objectification” (Daly, 2012, p.109). The assertion stands as a rebuke to the violation of victimisation itself and to any subsequent claim that this violation was against the state (Dearing, 2017). The point emphasises individual autonomy—dignity’s ontological core. This agentic human is central to the idea of victim participation. Therefore, the importance of a focus on the victim’s role in criminal justice is (in part) its relationship to the victim’s status as a rights-bearing human being. On this account, status links to human worthiness as human. Aspects of that humanness such as a person’s privacy and physical and moral integrity make this concrete.

A second emphasis is that the contours of the victim’s role provide recognition of and respect to the individual by their social and political community through state authorities. The relational claim, noted as part of the common core to human dignity (McCrudden, 2008), sees the dignity of each person being generated through communication in which the person is recognised as a member of a rights-holding community and as a holder of rights. Central to this recognition of individual dignity is a concomitant recognition of equality of persons involved in criminal proceedings by state authorities, a point of particular note to scholars working in the common law tradition. Both victims and defendants “share a similar interest in due process” and being “meaningfully heard” (Beloof, 2007, p. 354; and see Owusu-Bempah, 2018). Criminal proceedings are a public site in which this recognition takes place. How this is done for victims is wrapped in the discourse on victim participation.

At a formal level, as already described, victim participation in criminal justice is a positive obligation to effective remedy and to proceedings as in Article 13 of the Convention, Article 47 of the Charter and, in more detail, in Chapter 3 of the Victims’ Rights Directive. This detail of the Victims’ Rights Directive recognises that the formal provision of rights does not guarantee their free exercise. The necessity to “promote” rights therefore includes a “duty to foster conditions that the individual may access and benefit from those rights” (Shelton & Gould, 2013, p. 575). As such, the Victims’ Rights Directive is “context-sensitive”.³⁴ However, current modes and mechanisms of victim participation within the routine of criminal procedure are a casualty of justice professionals’ deep attachment to the ideology of public interest. As the FRA research discussed earlier shows, justice professionals in Europe routinely negate individual autonomy and rights with utilitarian justification. Given this ideological commitment, it may be that the task of securing the human rights of victims and protecting their dignity will, in future, rest with routine actions taken by independent victim advocates and legal representatives to assert a victim’s claims – perhaps up to the ECtHR.

However, re-balancing state power by ensuring the enforceable rights of individual victims has, to date, underestimated the commitment to “state-centrism” in Europe’s varied criminal justice systems while “differences between legal traditions in Europe [have been] overestimated” (Dearing & Huxtable, 2021, p. 59). Yet, in its role protecting individual human rights, the ECtHR case law has demonstrated that the victim of the offence has a right to criminal justice—technically speaking, a right to an effective remedy in the form of criminal proceedings. Following this logic, the primary purposes of criminal justice are then to vindicate the victim as a person entitled to respect and to a social status equal to that of other members of the legal community; and to vindicate the offender as a person capable of taking responsibility for his or her behaviour. Although this understanding is not widespread, for criminal justice to fulfil this task of restoring the victim and the offender as legal persons, the criminal proceedings must recognise and present them as individuals who have a voice of their own and are able to assert their cause. The rights of the victim and the offender to be heard are of central importance in this assertion. It is not a formality. Rather, the routine of court judgements must show that the viewpoints of the victim and the perpetrator have been recognised and taken seriously. The inviolability of human dignity inherent in this recognition honours Europe’s commitment to it—in Constitution, Convention and Charter.

Appendix

See Table 2.

Table 2 Key European human rights cases relevant to Member States’ obligations to victims