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Filed under: Human rights Peace and security

Empty courtroom, Zadar, Croatia

The courtroom can be a scary place for testifying witnesses, but they can be protected.

Victim support and witness protection are integral to the right of a victim of crime to a fair trial.

However, supporting victims of crime goes beyond a strictly legal interpretation of the notion of the right to a fair trial.

In 1985, the General Assembly of the United Nations adopted the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power.

The Declaration stipulates the minimum standards for the treatment of victims of crime and provides a benchmark for victim-friendly legislation and policies.

The contents of the 1985 Declaration can be summarized by the following basic principles of justice:

  1. Victims have a right be treated with compassion and respect.
  1. Victims have a right to information on the proceedings.
  1. Victims have a right to present their views to the judicial authorities.
  1. Victims have a right to legal representation at no cost should they be unable to afford it.
  1. Victims have a right to see their privacy and identity protected.
  1. Victims have a right to protection against retaliation and intimidation.
  1. Victims have a right to be offered the opportunity to participate in mediation.
  1. Victims have a right to receive compensation from the state in cases of violent crime.
  1. Victims have the right to receive social assistance.

The Declaration reinforces and elevates the Council of Europe Recommendation on the Position of the Victim in the Framework of Criminal Law and Procedure, also adopted in 1985.

UNDP and national partners in southeastern Europe, including ministries of justice and the victim support offices, have partnered to make sure that national systems are in place to support the principles of justice for victims.

Therefore, it was heartening to see that Albania, Bosnia and Herzegovina, Croatia, Montenegro, fYR Macedonia, Turkey, and Ukraine adopted a joint statement (opens in pdf) on victim empowerment at a regional conference in late 2012 on judicial reforms and empowerment of victims in Croatia.

One of the key outcomes of the statement is that participating countries agreed to establish national systems to support witness-victims.

Establishing minimum standards on the rights, support, and protection of victims of crime – within a three year period – has also become a requirement for all European Union (EU) member states as a result of the latest EU Directive (pdf) from 2012.

The Directive will also influence candidate countries in the EU negotiation process and prove relevant to other regions and countries as they work to expand the frontiers of justice.

The process of investigating and prosecuting offences depends largely on the information and testimony of witnesses. Witnesses, therefore, are the cornerstones of successful national criminal justice systems. Prosecutors depend upon witnesses whose testimony can be accepted as truthful, accurate, and complete.

The recall of victims called as witnesses at trial and their ability to relate relevant information may be affected by many factors, including age, cognitive or physical disabilities, language barriers, their relation to the offender, and, importantly, the trauma they have suffered as a victim of crime.

Given the encouraging developments achieved through the new EU directive and joint statement on victim empowerment, it is time to look beyond the legal approach and adopt a robust agenda of access to justice and legal empowerment in the region and beyond, ensuring that the message is spread to all citizens. This would benefit countries with similar challenges in other parts of the world.

Countries such as Albania, Bosnia and Herzegovina, Croatia and Serbia have already demonstrated that a justice system can be caring to the victims of crimes, especially those who are disadvantaged or marginalized because of their gender, disability, ethnicity, or socioeconomic status. Of course, there is still room for improvement.

Watch: Croatia’s work to support victims and witnesses in court cases, broadcast on Croatian Television (HTV) show Proces:

We should not, however, lose sight of the accused. To ensure justice for all, we must ensure that both victims and those accused of crimes have access to legal assistance, regardless of their position in society.

This equality has been highlighted in the new United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems released last year.

Easier said than done?

Do you have examples from your country or region?

How can we do more to empower victims of crime and ensure both victims and those accused get a fair deal?

  • Pradeep Sharma

    Dear Monjurul,
    This is a very important contribution and touches upon oft-ignored aspects of justice that is fair both to the accused and the victim. Witness protection is another important issue you have raised. Witnesses turning hostile, either because they are threatened or simply because they get tired of protracted trial, is another common phenomenon in many countries and vitiates the fair judicial process. I am glad we are discussing these issues.
    Best regards,
    Pradeep

    • Monjurul Kabir

      Thank you Pradeep. I’m really glad that you find it relevant. It is,indeed, time for us to review our approaches to justice critically in light of important recent developments. Do our existing Rule of Law programmes and systems resonate well with the specific needs of those who are in greatest difficulties due to gender, special ability, ethnicity, exclusion, ethnicity, economic condition or other considerations? Are we inclusive enough? We should no longer avoid these questions. Thanks.

      • Zarko Petrovic

        Indeed, this issue is especially important in fragile societies, where the justice system is struggling with upholding the RoL. If a case of, say, organized crime, or war crimes reaches the court in such societies, it is already a big accomplishment, but, it is protecting the witnesses and victims which will ensure the final judgment. Without this – RoL looses strenght.

        • Monjurul Kabir

          Thanks Zarko. Indeed, protection of witness and victim is important. As the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (2012) highlighted, without prejudice to or inconsistency with the rights of the accused, States should, where appropriate, provide legal aid to victims of crime. Rule of law needs to embrace social justice agenda as well. Tall order, right?

        • Monjurul Kabir

          Thanks Zarko. Indeed, protection of witness and victim is important. As the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (2012) highlighted, without prejudice to or inconsistency with the rights of the accused, States should, where appropriate, provide legal aid to victims of crime. Rule of law needs to embrace social justice agenda as well. Tall order, right?

  • Mitra Motlagh

    Thanks a lot for this very interesting article Monjurul! I think that a different yet related issue when it come to victim support is the psychological assistance. Both should be working hand in hand. For example, while coutries sometimes put the accent on providing adequate mental health services to victims, access to justice provides an important element of closure that is essential. Similarly, forgeting the psychological impact of crimes on victims by only focusing on the legal aspect would be a mistake. This also provides an interesting example of collaboration both at government and UN level. Thanks!

    • Monjurul Kabir

      I could not agree more Mitra. Thanks for highlighting this critical issue. In fact, UNDP together with government agencies and CSOs in Southeast Europe supported national partners in promoting both psychological, mental health and trauma victims-these are essential ingredient of victim support programme. I must admit, long-term sustainability is a challenge unless there is dedicated budgetary allocation by national governments for this. ‘Public awareness- sensitization’ is another critical component.

  • Jasmina Mujkanovic

    Dear Monjurul,

    Thank you for this article.

    Clearly, the shift in the thinking of criminal justice systems away from just focusing on arresting and convicting offenders, to the provision of better treatment and services for the victims and witnesses of crimes has been more and more obvious in the past few decades. In recent years many countries have implemented a number of specific initiatives designed to provide better care for victims and witnesses. By signing the mentioned joint statement, Albania, Bosnia and Herzegovina, Croatia, Montenegro, FYR Macedonia, Turkey, and Ukraine have joined those countries that have recognized and used the growing momentum to invest in actions and measures to meet the needs of victims and respect their rights.

    In the joint statement, the above mentioned countries agreed to establish national victim support systems. However, implementing effective victim support would be dependent on the governments having a clear victim support policy and a number of different ministries and national agencies working closely together to achieve common goals and objectives. This has been identified as one of the main challenges in Croatia, where UNDP had been actively supporting development of a national victim and witness support system since 2007. Activities implemented in Croatia to that end mainly focused on provision of information to victims and witnesses, providing a better experience for victims and witnesses in the court, developing a national network of victim and witness support, training in victim and witness care for police, judges, prosecutors and other professionals, and developing a national victim and witness support strategy. I would like to use this opportunity to quote from the Council of Europe Parliamentary Assembly Resolution 1784 (2011): The protection of witnesses as a cornerstone for justice and reconciliation in the Balkans:

    (…)15. The Assembly further acknowledges the work of the United Nations Development Programme in Croatia in establishing witness support programmes which provide support and advice for witnesses in four pilot courts. It welcomes the fact that the Croatian authorities have taken over responsibility for these programmes. It regrets, however, that these kinds of programmes have not yet been institutionalised in the majority of courts in the region and encourages the authorities of the countries concerned to extend these programmes to all courts trying serious crimes.

    16. The Assembly therefore calls on:

    16.1. the competent authorities in the states and territories concerned to:

    16.1.7. provide funding for and establish witness support programmes, using those that have been set up by the United Nations Development Programme in Croatia as a model, in all courts dealing with witnesses in serious crimes;

    16.3. the authorities of Croatia to:

    16.3.1. in circumstances where witnesses may be at risk, use one of the four principal courts which were granted special jurisdiction to hear war crime cases or cases of organised crime;

    16.3.2. extend the witness support programmes established by the United Nations Development Programme to all courts dealing with serious crime in Croatia; (…)

    Experience has shown that providing better care for victims and witnesses can deliver many important benefits for the victim or witness themselves, especially those who are particularly vulnerable and/or intimidated. Moreover, by increasing public confidence in the criminal justice system and the confidence in the fairness and independence of criminal justice agencies, it can contribute to the effectiveness of the criminal justice system. But, as we all agree, victim (and witness) support is not only about bringing offenders to justice or reducing a backlog of court cases. It is also about access to justice and legal empowerment. Victims should be able to participate in the justice system process and have access to information and services. They should be empowered to speak out and to be heard during processing of individual cases, and should have opportunities to influence victim oriented policies and practices. Consistent and well coordinated support should be available at all stages of the justice process and beyond, and human rights principles should underpin every aspect of support provision. It is therefore extremely important that all support providers – from the key governmental bodies, institutions and agencies to non-governmental organisations – work in close partnerships and that all the partners take a human rights approach to the way they work.

    And finally, I could not agree with you more – we should not lose sight of the accused. Building a strong and responsible national victim support system should not in any way lessen the importance of the rights of the accused, however distinct they are from the rights and needs of the victim. For instance, Croatian witness support model includes both, prosecution and defence witnesses. Attending court as a witness can be traumatic and worrying experience regardless of whether the person was summoned by prosecution or by defence. This distress can have impact on the quality of evidence or willingness of the witness to go to court to give evidence. Having mechanisms in place that provide emotional support, practical help and essential information to witnesses can result in better quality evidence provided by witnesses and increased numbers of witnesses prepared to attend court to give evidence, which again leads us to increased effectiveness of the criminal justice system, not to mention that such approach supports the principle that both, the victim and the accused, have the right to be heard equally. This was just one example of how to ensure fairness for both.

    • Monjurul Kabir

      Thank you very much Jasmina, points well taken. The real challenge lies, as you alluded to, in developing a robust national victim and witness support system that also cares disadvantaged groups and marginalised communities. It is, after all, because other sectors and systems did not provide what they should in the way they should have that they need to seek a remedy. In many instances, it is a last resort for these individuals and groups. Are we doing enough?