VICTIMS’ RIGHTS IN INTERNATIONAL CRIMINAL LAW

By Prof .Jan Van Dijk Research Director INTERVICT, University of Tilburg , The Netherlands Deputy director, United Nations Interregional Crime and Justice Research Institute (UNICRI) Turin Paper presented at the International Conference on Actions for Crime Victims ( Congresso internationale “L’intervento per le vittime del crimine”)

University of Rome La Sapienza/ Ministry of the Interior/ John Jay College, NY City,

Roma, Italy, 19 - 21 gennaio 2006

The UN Victims Declaration

In 1985 the UN Crime Congress, hosted by the Italian government in Milan, elaborated the United

Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. This

declaration was subsequently adopted by the General Assembly of the United Nations. It is commonly

known as the UN Victims Declaration. This declaration, although not legally binding by itself, is seen as a

landmark achievement of the international movement to advance the interests of crime victims. It can also

be used as a benchmark against which progress in domestic policies can be measured.

The UN Victim Declaration’s substantive paragraphs can be broken down into ten basic principles or

minimum standards for the treatment of crime victims. This Decalogue on Victim Rights can be summed

up as follows:

Ten Basic Principles of Justice for Crime Victims

1. COMPASSION AND RESPECT 2. INFORMATION (on rights in proceedings and explanation of progress) 3. PRESENTATION OF VIEWS TO COURT 4. LEGAL ADVICE 5. PROTECTION OF PRIVACY AND PHYSICAL SAFETY 6. INFORMAL DISPUTE RESOLUTION 7. SOCIAL AND MEDICAL ASSISTANCE 8. RESTITUTION/ COMPENSATION BY OFFENDER 9. COMPENSATION BY THE STATE 10. CAPACITY BUILDING/ COOPERATION

Other international legal instruments

In 1985 Victim Rights were also on the policy agenda of the Council of Europe. The Council of Europe

adopted the Recommendation on the position of the victim in the framework of criminal law and

procedure (Recommendation (85/11). More recently, on 15 March 2001, the European Council, a body of

the European Union, issued the European Union Framework Decision on the Standing of Victims in

Criminal Proceedings (2001/220/jHA). The latter document is legally binding for the Member States of

the EU since 22 March 2002.

We have, first of all determined to what extent the EU Framework Decision incorporated the UN’s ten

basic Principles of Justice. The conclusion was that the Framework Decision fully reflects nine of the ten

principles. In many respects the Framework Decision goes beyond the principles contained in the

Declaration. The only principle that is not reflected is the right to state compensation for victims of

violence or victims in need generally. Reference can be made to the Council of Europe Convention on

State Compensation.

In recent years the member states of the UN have adopted five international criminal law treaties dealing

with transnational types of crime (the ‘Big Five’). It seems worthwhile to investigate to which extent these

legally binding instruments respect the ten minimum standards for the treatment of victims set by the

UN’s own Victims Declaration of 1985.

Most UN Member States have ratified the UNTOC Convention, also known as Palermo Convention, and

its protocol against human trafficking or, as seems the case in Italy, are likely to do so in the near future.

In this paper we will first look at the concurrence of the UN Convention against Transnational Organized

Crime (UNTOC) and its protocol against Trafficking in Persons, Especially Women and Children, with

the 1985 UN Victims Declaration.

Concurrence with the ten principles of justice for victims

An examination was made of the provisions in the Convention against Transnational Organized Crime

and its supplementary protocol which seem to qualify as more or less adequate operationalizations of the

ten basic principles of justice for victims. If the legal instruments use language such as " shall consider"

or "may include" rather than "should" we regard the obligation as optional. In case no articles

concerning a principle could be identified in the convention text the instrument was found wanting in

this respect. Table 1 gives the results of the analysis.

Table 1: Concurrence of UNTOC and its supplementary human trafficking protocol with the ten

basic principles of justice for victims of the 1985 UN Declaration on Victims

Ten Basic Principles of Justice of the 1985 UN Declaration on Victims of Crime and Abuse of Power

2000 UNTOC Convention

2000 UN Trafficking Protocol

2001 EU Framework Decision

1. Compassion and respect

-

X

X

2. Information on proceedings - X X

3. Presentation of views X X X

4. Legal aid - Optional X

5. Protection of privacy/identity and safety X X X

6. Informal dispute resolution - - X

7. Social Assistance X Optional X

8. Restitution/ Compensation from offender X X X

9. Compensation from State - Optional -

10. Capacity building/ Cooperation X X X

In terms of concurrence with the UN's basic principles of justice for victims the UNTOC Convention

scores five out of ten and the protocol six out of ten, with the remaining three incorporated as optional

provisions.

It is a matter of opinion whether, as the saying goes, the glass can be considered as half full or half empty.

The 1985 UN Declaration seems, at any rate, to have laid the groundwork for the codification of several

basic principles of justice of victims in international criminal law treaties. What was no more than a lofty

ideal twenty years ago has become a legally binding norm for many countries worldwide, at the beginning

of the 21st century, for at least some categories of crime victims, including victims of human trafficking.

The EU framework decision recognizes as mentioned most of the ten basic principles as binding for

domestic legislation in its Member States, and in some respects goes beyond both the Recommendation of

the Council of Europe of 1985 and the Declaration. The Treaty establishing the International Criminal

Court, the Rome Statute, which entered into force on 1 July 2002, contains important provisions

concerning the protection of the victim and their participation in the proceedings. Together, these new

international legal instruments constitute significant developments towards victim-centred justice.

Italy in international perspective

Italy has not yet ratified the Palermo Convention and is not bound to incorporate its provisions

concerning victim rights in domestic legislation and practices. As a member country of the European

Union Italy is legally obliged to approximate the principles contained in the 2001 Framework Decision.

Finally, therefore we have carried out a rough and ready check on the concurrence of the Italian legislation

and practices with the UN’s ten principles of justice for crime victims. Our information on the Italian

situation is largely based on the comparative study of Brienen and Hoegen published in 2000,

supplemented with information on more recent legislative action contained in the Report of the

Commission of the European Communities on the Framework Decision (COM (2004) 54 final/2).

Our tentative assessment of the Italian situation is as follows:

Italy has introduced special assurances for the proper treatment of vulnerable victims such as minors and

the physically disabled. Brienen and Hoegen express doubt about the treatment of crime victims generally

by the police and justice system. No systematic training modules are available at the national level. We are

therefore inclined to conclude that Italy is only partially in concurrence with the Declaration on this issue.

The right to information in Italy is limited to the period after the criminal case has been submitted to the

prosecutor but not before. There is no system for reporting back to the victim by the police. Court

decisions are communicated to victims only if they have brought parte civile proceedings. This situation,

again, seems to be only partially in concurrence with the Declaration (in the opinion of the European

Commission it does not comply with the EU Framework Decision in this respect ).

Italy as one of the countries where the victim can act as parte civile in the criminal proceedings seems to

comply with the principle that victims are allowed to present views. Italian jurisprudence allows victims

ample opportunity to express opinions on all aspect of the case. This is also the view of the European

Commission.

Also the right of victims to legal aid is honored by the Italian regime for free legal aid. Since applicants

have to pass a stringent means test , the provision is relevant for only a minority of victims in practice.

Italian legislation has for many years offered special protection to cooperating witnesses in mafia trials.

New legislation passed in 2001 provides for a system of protection of the safety of larger categories of

victims of crime. There are also provisions for hearings in camera to protect interests of the victim. It

seems doubtful, however, that the system otherwise assures the protection of the privacy of crime victims.

Concurrence with the Declaration’s principles seems only partially assured.

In Italy the principle of mandatory prosecution complicates or even precludes the introduction of

alternative dispute resolution. However several pilot initiatives are ongoing regarding cases involving

minors. Partial concurrence seems to be the case.

Provisions for restitution or compensation by the offender are fully in place in Italy in the framework of

the partie civile model.

There exist special funds for the compensation of victims of particular crimes such as victims of organized

crime (extortion) and terrorism but Italy is, together with Greece, one of the few of the old 15 EU

member states without a general state compensation scheme for victims with serious injuries caused by

crimes of violence.

Italy has introduced a comprehensive and generous program of social protection and support for victims

of human trafficking based on national legislation. Locally several initiatives have been launched for the

support of victims of domestic violence, especially in the North of the country. There is no national

programme for victim support. According to the European Commission social support for crime victims

is still comparatively underdeveloped.

Finally, in Italy some initiatives have been taken to raise capacities of police and justice personnel to treat

crime victims better but the focus has been on categories of vulnerable victims. Italy did not provide

information on its training on victim issues to the European Commission.

Our over all assessment of Italy’s concurrence with the UN Victims Declaration is that Italian law and

practice seems to concur fully with two or three principles and only partially with the others. The strength

of the system seems to be the set of rights entrusted to the victim as parte civile litigants. In other areas

there seems ample scope for improvements.

For Italy the UN Declaration on the Basic Principles of Justice of Crime Victims seems, 20 years after its

adoption at the Milan Congress, work in progress. To fully implement Declaration - and the EU

Framework Decision- more needs to be done. On 18 March the Ministry of the Interior has established

an inter- ministerial commission to examine the need of new legislation and policies concerning crime

victims against the background of the 2001 Framework Decision. The initiative of the Ministry of the

Interior to convene an international congress where these issues can be analyzed in an international

context is to be commended.

Literature

� M.E.I. Brienen and E.H. Hoegen (2000), Victims of Crime in 22 European Criminal Justice

Systems, Wolf Legal productions

� Commission of the European Communities, Report from the Commission on the basis of article

18 of the Council Framework Decision of 15 March 2001 on the standing of victims in criminal

proceedings, COM (2004) 54 final/2, 16.02.04

� Van Dijk, J.J.M. (2005), Benchmarking Legislation on Crime Victims: The UN Victims

Declaration of 1985, In : Victims of Crime and Abuse of Power, Festschrift in honor of Irene

Mellup, UNODC