Protection of rights of victims in Criminal Justice System
The present article elaborately discusses the rights of victims in the Criminal Justice System, with a special focus on the Indian scenario. The victimology movement, which has recently been seen to emerge in many parts of the world, suggests making victims a crucial part of the criminal justice system by giving them equal opportunities to be heard at… Read More »
The present article elaborately discusses the rights of victims in the Criminal Justice System, with a special focus on the Indian scenario. The victimology movement, which has recently been seen to emerge in many parts of the world, suggests making victims a crucial part of the criminal justice system by giving them equal opportunities to be heard at various stages of a criminal trial to ensure that proper justice is done to all. In India, the penal system has begun to acknowledge...
The present article elaborately discusses the rights of victims in the Criminal Justice System, with a special focus on the Indian scenario.
The victimology movement, which has recently been seen to emerge in many parts of the world, suggests making victims a crucial part of the criminal justice system by giving them equal opportunities to be heard at various stages of a criminal trial to ensure that proper justice is done to all.
In India, the penal system has begun to acknowledge the concepts of prevention of crime and treatment and rehabilitation of criminals, which have been reiterated through many landmark judgments of the Supreme Court. Thus, the article also discusses the protection of the victim rights with reference to various landmark judgments of the court over the years.
I. Introduction
Victims have certain legal rights such as the right to be informed, present, and heard in the criminal justice system of a country. The dictionary definition of the term ‘victim’ means a person who is put to death or is subjected to torture by another person, one who suffers severely in body or property through cruel or oppressive treatment; one who is reduced or destined to suffer under some oppressive or destructive agency.[1]
The UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power defines the term ‘victim’ as a “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 are in violation of criminal laws operative within the Member States, including those laws proscribing criminal abuse of power”.[2]
The Criminal Justice System in India is governed by 4 major laws:
- The Constitution of India, 1950
- The Indian Penal Code, 1860
- The Code of Criminal Procedure, 1973
- The Indian Evidence Act, 1870
The statutory definition of the term ‘victim’ is provided in Section 2(wa) of C.r.P.C, 1973 as a “person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged; and the expression victim includes his or her guardian or legal heir.”[3]
II. Rights of Victims in the Indian Criminal Justice System
The essential rights for victims of crime are:
1. Right to attend criminal justice proceedings
Victims of crime and their families have the right to attend criminal justice proceedings. It is important for the families to see the trial of the accused and see the criminal justice process at work fairly. They may want to hear the counsel’s arguments on behalf of the victim and offender, statement of the witnesses, and observations of the judge.
Proceedings Victims May Attend
The victim has the right to attend criminal proceedings such as the right to attend trial of the offender, sentencing, and his/her parole hearing but may include other proceedings as well.
Exclusion of Witnesses
The right of the victim to attend trial is often limited in those criminal cases where the victim is also a witness. A longstanding rule of evidence provides for the exclusion, or “sequestering,” of witnesses during the trial. This rule emerged in order to prevent the witness from getting influenced by the statements of other witnesses in a criminal case. However, the rule is being changed by jurisdictions by allowing the victims to remain in the courtroom even when they are a witness or by requiring the concerned court to first rule that testimony of the victim is likely to get influenced by other witnesses’ testimonials.
Presence of Support
All victims of crime must benefit from the presence of a support person during the criminal proceedings. This supportive assistance to the victim may be in presence of a trusted lawyer or family member will ensure that the victim exercises his or her right to be present during proceedings.
2. Right to apply for compensation
Victims of crime have the right to apply for compensation. The grant of compensation to crime victims should be a state program made to reimburse the victims of violent crime. Generally, victims apply to the compensation program of the state where they live or where the crime occurred but affected or surviving family members may also be eligible for limited compensation. Compensation to victims can be paid even when the accused isn’t arrested or convicted for the crime.
Eligibility
Only direct victims of violent crime or their surviving family members are eligible to apply for victim’s compensation for example financial crime victim may seek compensation from the court for its counselling expenses. In order to be eligible to receive the compensation, the victim must have reported the crime and cooperated in the prosecution of the case. Victims are also required to file an application within a certain time period to receive compensation out of the case. However, in certain cases, the victims become ineligible to receive compensation when their own misconduct would have contributed to the injury.
Compensable Expenses
Compensation programs are designed to reimburse medical expenses, counselling expenses, lost wages, and funeral expenses to the victims of crime.
3. Right to be heard and participate in criminal justice proceedings
Right to be heard is one of the most significant rights for crime victims. Every victim has the right to be heard and has equal participation in the criminal justice proceedings that affect their interests. Such participation is the primary means by which victims play a proactive role in the criminal justice process and put forth their views and testimony.
When the court allows a victim to speak at the sentencing hearing, or to submit a victim impact statement regarding the impact of the offence on him/her and the family, there is an acknowledgement by the system of the personal nature of the crime and the harm suffered.
Conferral with Prosecutor
Another crime victim right is conferral with the prosecutor of the case. It is necessary for the prosecutor to obtain the victim’s views before the final disposition from the court. Be it, involves a plea agreement, dismissal of charges, or a pretrial diversion of the defendant, the prosecutor needs to certify to the court that he/she has consulted the victim before filing a plea.
Communication with the Court or other Authority
It is also the right of a crime victim to be heard by the court at sentencing.
4. Right to be informed
The criminal justice system guarantees the rights of the victim and his/her family members to provide general information of interest to victims so that the victim remains informed of proceedings and events in the criminal justice process, of legal rights and remedies, and of available services.
General Information to be provided to Victims
All general information regarding the legal rights of the victim must be communicated to the. Some of the general yet essential rights are to attend a criminal proceeding and/or submit a victim impact statement; sue the offender for compensation in the civil justice system; have a court injunction to keep the victim and his/her family protected from the offender.
Notice of Events and Proceedings in the Criminal Justice Process
There are numerous events and proceedings in the normal course of the criminal justice process for which a notice is required to be sent by the state to the victim. Victims must be sent notice of events and proceedings of various phases of the criminal justice process such as on arrest of the accused, bail release, dismissal of charges, trial dates and time are necessarily required to be communicated.
5. Right to protection from intimidation and harassment
Victims also have the right to protection from intimidation and harassment during the criminal justice process. This right to protection may be taken in the form of a generally stated right to protection or may include specific protective measures.
Protective Measures
There are certain protective measures to protect crime victims from harassment. They are as listed below:
- Police escorts to and from court;
- Secure waiting areas separate from those of the accused and his/her family, witnesses and friends during court proceedings;
- Witness protection programs;
- Residence relocation; and
- Denial of bail or imposition of specific conditions of bail release—such as no-contact orders—for defendants found to present a danger to the community or to protect the safety of victims and/or witnesses.
6. Right to restitution from the offender
The term “restitution” generally refers to the restoration of the harm caused by the defendant, most commonly in the form of payment for damages. It can also refer to the return or repair of property stolen or damaged in the course of the crime.
The meaning of the term ‘restitution’ commonly refers to the restoration of harm caused by the offender, generally in the form of payment for damages. Restitution also means return or repair of the property stolen or damages in the course of offense. Basically, the losses to be covered as restitution should be directly related to the crime and it includes medical expenses, lost wages, counselling costs, and so on. It doesn’t cover emotional harm or distress but has the scope to cover reasonable foreseen future losses. While calculating the amount to be paid as restitution, the court must look at the losses of the victim of the crime.
7. Right to prompt return of personal property seized as evidence
Crime victims may suffer the loss of property either by theft or when the property is seized and held as evidence but the criminal justice system ensures the victim’s right to prompt return of personal property seized as evidence.
8. Right to a speedy trial
Everyone has a right to speedy trial and victims of crime are no exception to this. The court must consider the impact of the delay of the trial process on the victim. It is necessary for a case before it turns futile for the parties to dispose of the decision and free the case from any unreasonable delay.
9. Right to enforcement of victims’ rights.
As discussed above, crime victims have been afforded certain legal and statutory rights. That is why there is also the need to ensure that those rights are enforced efficiently as well.
Enforcement Mechanisms
The crime victims have a legal standing to assert their rights before the court. Since a victim of a crime isn’t a party to the case, his/her status is limited as the defendant and from the prosecuting jurisdiction; therefore, the victim’s legal standing must be automatic and be provided by a statute or court ruling.
Aside from the general legal standing of victims to assert their rights, some jurisdictions have other limited court options for enforcement of these rights. Thus, it is necessary that there is a designated entity to investigate and resolve crime victim complaints and there must be a state victim advocate to act against any violation of the victim’s rights.
III. Conclusion
It is to always note that no sound criminal justice system of any country can afford to avoid the rights and plights of the victims of crime. With an ever-increasing number of crimes, it is important that the system put the rights of accused and victims on the same weight, in order to ensure equality and delivery of justice.
The victimology movement which has recently emerged in several parts of the world suggests making victims a crucial part of the criminal justice system and this can be done by giving victims equal opportunities to be heard at various stages of the criminal justice process so that proper justice is done to them. On that note, it is to contend that the present criminal justice system in India needs an administration which is more sensitive to the plights of the victims and extend protection to victim rights.
[1] Siddhant Mishra, The rights of victims and criminal justice system, Available Here
[2] Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Compendium of United Nations standards and norms in crime prevention and criminal justice, Available Here
[3] The Code of Criminal Procedure Code, 1973, sec. 2 (wa).