“RIGHTS OF VCTIM AND INTERNATIONAL ORGANISATION”

PRAGYATA SINGH

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“RIGHTS OF VCTIM AND INTERNATIONAL ORGANISATION”

AUTHORED BY - PRAGYATA SINGH

Phone no. – 6360059271

Address – H306 Alpine eco apartments marathalli Bangalore

560037.

ABSTRACT

Victims and Victomology is a part Criminology. “Crime” which consider as it not only effect that particular person but the society too, this project is about the understanding of rights of a person against whom crime is committed , how society not of its surrounding only but also about the legal system, government and International Authorities how they all deal with the particular victim and the situation. This concept is not only studied today but it hold’s the relevancy from many years ago but with the change of time the behavior or the doings of society get changed the development take place but this also can be easily noticed that crime also changed it become more rigorous serious and heinous on the other hand what will be consider as crime and what punishment should be prescribed also decided by the society only with this The victims of crime are those who have formerly endured injury or are possibly suffering as an outcome of crimes having been committed. The direct family or dependants of the direct victims, who are harmfully affected, are also included within the meaning of the term “Victims”. The predicament of the victims does not finish with the crime but it persists. It may even increase, following the crimes; since they have to face the rigors of the actuality, such as deficient support system, dearth of social backing, and sense of anxiety. They also experience the intricacy of police inquiry, magisterial investigation and criminal trial. The impact of victimization on different kinds of victims due to different types of crimes has been varied such as physical, psychological and financial.

By this project it is to check the situation of victims of crime, their rights and the role of international organization. Rights are the most important part , they possess a very important place in every sphere of victimization and victimology . seeing a person as a victim, before that it is important to see a person as human being it doesn’t matter from where the person belongs what its caste or from which state he belongs these all things have no importance when any crime take place this the human being only who violates his fundamental duty and harm other human being fundamental right which is not acceptable on the any humanitarian ground this is the most important factor which is also discussed in the project.

ACKNOWLEDGEMENT

Here in this project the main focus is on victims so it is very important to understand who they are , according to my understanding and as I try to write in this project , the victims can be anyone according to the parameters of our society have today to decide who is victim can make anyone victim which means until unless you are doing this for sake of good will or for the betterment of something or with your own will , you are a victim but this also may be a problem because whatever you like or like to do may be hurt someone it is not necessary our acts only limited to us it , it obviously give impact over our surroundings

So the important aspect is to understand, once you fall under the category of victim what are your rights what is the meaning to be a victim and to understand what our legal system and society have to support or give us in that particular moment of situation

Whatever I mentioned under this project is only on the basis of knowledge I gathered with the searching about victims from class, library, internet and the reports of international concern

INTRODUCTION

The law is the very powerful way to bind the society together sometimes it is only the reason due to which society mechanism working properly or it is depend over the law only . So to understand the terminology of law that is Crime, Victim, Rights, Victimology etc. related to the project or for better understanding of this project it is important to know about the law from where all these terminology evolved.

Law and society are depending on each other. Nothing can explain without any of them. Society becomes so disturbed and undisciplined without the law. Law also needs to be changed according to the changes the society faces, because without the necessary changes law cannot keep up with society. So there was, there is and there will be a very rapid change in the society and law was, law is and will be evolve according to it. Without the control of the law, the society became meaningless. So, to keep the society peaceful and developed we need to create a harmonious relationship between law and society.[1]

The law is dealing with the almost every sphere of society or it can be said it is related to every and each person, human being and citizen Its main focus is to provide safety security and main concern is development all[2]. There are many branches of law to deal with situations like administrative laws executary laws domestic laws natural laws human laws corporate law family law and criminal law The branches are divided according to the need of the society and one them is criminal law or criminology which make laws for the acts which are very serious in nature and which have impact over the society too there are many important categories in criminal law for example[3] –

· Evidences

· Victim

· Offender

· Witnesses etc.

There are many aspects of criminal law to deal with and one of the important aspect is victimology which deals with victim this project is about to understanding of that person or human being that what happen that person when he or she become the victims what are their rights.[4]

The Law is very specific about this term “Victim” and take very serious measures to deal with not only state law have the responsibility, but this is the matter of International concern.

IMPORTANT TERMINOLOGIES

. “Victim” has it roots in the early religious notions of suffering, sacrifice and death. This concept of“victim” was well known in the ancient civilizations, especially in Babylonia, Palestine, Greece, and Rome. In each of these civilizations the law mandated that the victim should be recognized as a person who deserved to be made whole again by the offender.[5]

2. “Crime victim” is a person who has been physically, financially or emotionally injured and/or had their property taken or damaged by someone committing a crime.

3. “Victimogenesis” refers to the origin or cause of a victimization; the constellation of variables which caused a victimization to occur.

4. “Victim Precipitation” a victimization where the victim causes, in part or totally, their own victimization.

5. “Vulnerability” is a physical, psychological, social, material or financial condition whereby a person or an object has a weakness which could render them a victim if another person or persons would recognize these weaknesses and take advantage of them.

6. “General Victim” is a person who has been physically, financially or emotionally injured and/or had their property taken or damaged by someone, an event, an organization or a natural phenomenon.

7. “Victimization” refers to an event where persons, communities and institutions are damaged or injured in a significant way. Those persons who are impacted by persons or events suffer a violation of rights or significant disruption of their well being.

8. “Victimology” is an academic scientific discipline which studies data that describes phenomena and causal relationships related to victimizations. This includes events leading to the victimization, the victim’s experience, its aftermath and the actions taken by society in response to these victimizations[6]. Therefore, victimology includes the study of the precursors, vulnerabilities, events, impacts, recoveries, and responses by people, organizations and cultures related to victimizations.

9. “Abuse of Power” is the violation of a national or international standard in the use of organized powerful forces such that persons are injured physically, mentally, emotionally, economically, or in their rights, as a direct and intentional result of the misapplication of these forces.

10. “Victim Assistance, Support or Services” are those activities which are applied in response to victimizations with the intention of relieving suffering and facilitating recovery. This includes offering information, assessments, individual interventions, case advocacy, system advocacy, public policy and programme development.

11. “Victim Recovery” is the resumption of the same or better level of functionality as was enjoyed prior to victimization. Persons who have been victimized vary in their level of mental health and wellbeing prior to their victimization. Consequently, victimization affects each person in a different way and causes differing degrees of injury or trauma. In their recovery it is necessary for victims to first try to regain their[7] previous level of functioning plus learn from their misfortune and hopefully exceed their previous level of functionality. To be recovered suggests that a person has at least regained their prior level of well-being and at best, has exceeded it.

This state may be measured by identifying their previous mental condition and determining if they have at least regained that prior status using the criteria of: trust in others, autonomy of self, individual initiative, competency in daily activities, self-identity, interpersonal intimacy, control over personal situations, successful relationships, safety in daily activities, acknowledgment of memory, trauma symptoms have become manageable, self esteem is restored, resourcefulness is achieved, and there is an improved ability toward off potential threats.[8]

12. “Child Abuse” is the intentional application of sexual, physical, emotional or psychological injury to a child to include neglect at the hands of her or his parents or care-provider within the confines of their family or place of care.

13. “Victim Offender Mediation” (VOM) is a formal process for face-to-face meetings in the presence of a trained mediator between a victim of a crime and his/her offender who committed that crime. This is also called victim-offender dialogue, victim-offender conferencing, victim-offender reconciliation, or restorative justice.[9] Often the victim and the offender are joined by their respective families and community members or other persons related to the crime event. In these meetings, the offender and the victim talk to each other about the victimization, the effects it had on their lives, and their feelings about it. The aim is to create a mutually agreeable plan to repair any damage or injury that occurred as a result of the crime in the hopes of permanently eliminating the conflict that caused the crime in the first place.

14. “Restorative Justice” is a systematic formal legal response to crime victimization that emphasizes healing the injuries that resulted from the crime and affected the victims, offenders and communities. This process is a departure from the traditional retributive form of dealing with criminals and victims which traditionally have generally perpetuated the conflict which resulted in the original crime.

15. “Victim Trauma” includes emotional and physical experiences that produce pain and injuries. Emotional injury is a normal response to an extremely abnormal event. It results from the pairing of a painful or frightening emotional experience with a specific memory which emerge and have a long-lasting effect on the life of a person. The more direct the exposure to the traumatic event, the higher the risk for emotional harm and prolonged effects.[10]

16. “Crisis Intervention” is the provision of emergency psychological care to traumatized victims so as to help them return to an adaptive level of functioning and to prevent or mitigate the negative impact of psychological and emotional trauma.

17. “Compensation” is a formal administrative procedure provided by law which provides only money to victims for “out of pocket” real expenses directly resulting from the victimization to be paid by the state after the victim are found to qualify according to specific criteria determined by the respective state or federal law.[11]

18. “Restitution” is a formal judicial procedure used by a judge after guilt is determined as part of a sentence which can provide money and/or services to the victim for damages or suffering which resulted from the victimization to be paid or performed by the offender.

19. “Victim Survey” is a periodic data collection and analysis process conducted usually by a government entity within the general population to study information about crime victims regardless whether they reported their victimization to the police or not. It typically uses a face-to-face or telephone interview (or sent questionnaire) and covers demographics, attitudes about crime and details about the victimizations experienced over the previous six months.

20. “Victim Rights” are privileges and procedures required by written law which guarantee victims specific considerations and treatment by the criminal justice system, the government and the community at large.[12]

WHO IS VICTIM

Victim it is a legal terminology which says that when person or human get effected by loss which is define under the legal category he will consider as Victim this is just in layman language , whenever the society evolve there are some acts which also evolved and under that consideration what will be consider as crime and what will be just wrong decided by the society as well as the seriousness of the Act and then this is the responsibility of the Legal System and Government to take care of that Act.

The term victim is derived from the Latin word victim and according to the historical point of view from the kings time this victim or injured plays a very crucial role as one of the impacted criteria that is eye for eye and tooth for tooth, which shows that this concept have importance at every age of society evolution.[13]

And with the passage of the time the victim is such a serious matter that now it studies as subject that is victimization under criminology, which concern almost with every sphere of victim under criminology. In this system, criminal law becomes an instrument for maintaining social order, which has the function of protecting the most basic legal rights through prevention of crimes in order to maintain social harmony which is the basic goal to gain by the legal system[14]. Crime is defined as an abstract conflict between the offender and the law and between the offender and the State.

The victim is relegated to being a mere legal abstraction, as the passive victim of the crime. Actual and effective reparation to the victim occupies a subordinate role among the objectives of the legal response to the crime, the punishment. This system, based on the principles and values of a democratic system of present era, such as the principles of legality, proportionality, humane punishments and respecting the offender's rights, has the undeniable advantage of guaranteeing a rational, objective and smooth application of justice

The victim plays a very important role in act as the whole incident and after affect depend over him victims have a valid interest in the prosecution of the case and should be involved at all stages of the proceedings[15] there are proper mechanism to work on that process victim can be a person a society or a whole sate and there are totally different mechanism to work on it.

IMPORTANCE OF VICTIM AND VICTIMOLOGY

Criminology is the main subject under which we understand about victims but with the importance of this issue on international level the victimology came into consideration the main focus victimology[16] deals with is the importance which is also required should be given to the victims and their conditions.

Many sociologists and researchers make it very clear that crime is not randomly happened it always have consequences or a strong reason behind it or it can be said the means rea or guilty mind present than only crime happened which makes other person fall into the category of victimization , some groups within society are much more likely to be victims of crime than others which means they are not directly affect by the act there are some situations which is not easily visible but only can be understand by which victim is suffering from. Gender, ethnicity and social class are three key characteristics that may influence the likelihood of victimization[17]. However, it is very difficult to measure rates of victimisation because relatively little crime is reported to the police. This means that a huge proportion of crime is “hidden” and when this serious issue highlighted on a very large scale then the solution that is basic importance to the victims should be give also get serious weightage and for every hidden crime, there is a potential hiddenvictim.

for example Feminists such as Walby, Walklate and Allen believe that female victims are ignored and/or hidden. They link this to the patriarchal nature of society, meaning that it is in the interests of men to cover their crimes by discouraging women from reporting crimes they have been a victim of[18]. For example, Hall argued that only about 8% of rape is reported. This may due to low prosecution rates, fear of not being believed, have to relive the trauma by giving testimony and through fear of being blamed. There are high-profile accounts of rape victims being ‘blamed’ for their victimization[19]. For example, in the 1980s, a High Court Judge claimed that “women who say no don’t always mean no”. The New Right perspective in particular has been criticized for putting the emphasis on the responsibility of victims for their own victimization but still someone have to take this responsibility to understand the victim.

THE RESPONSIBILTY OF GOVERNMENT AND LAW TOWARDS VICTIMS

Punishment as imprisonment or death penalty defined by legal system of countries are generally for only dangerous offenders but still the question is whether giving punishment to offenders are can only be adequate relief to the victims , but still the punishment to the offenders plays a very important role [20]. This will not only make it easier for the government, but also reduce the cost and time put into prisons, which can be useful for other developments for offenders and victims. But the public is not fully satisfied with the criminal justice system, it seems as they have failed in achieving the goals of fairness between the offender and victim and also by protecting the public. Restorative justice pays attention to victims needs. It ensures the victim questions have been answered and they feel happily secure. Restorative justice is such a system which started by government to help offenders take responsibility and make them understand[21] the harm they have caused. Offenders are forced to feel guilt and shame, therefore this prevents them from committing future crime. By this the community and government trying to help and to accept the offender back and helps him/her reintegrate back into society. This process can take place in many settings such as conferencing circles or offender-victim meetings.[22]

Every person harmed by a conflict should have the opportunity to resolve it through a restorative justice' (Restorative Justice Consortium, 2002). Restorative justice is not perfect but it does offer a positive approach to this world which our current criminal justice system does not.[23] Government trying to make every possible way to help the society and victims to deal with crimes It has shown to reduce crimes within youths in schools and even adults with domestic violence and stealing problems. Many countries legal system have taken this seriously and amended many laws. Restorative justice assures to better social justice to victims, a secure community to all and to reform the offender which will help reduce the number of future crimes.[24]

Punishment of offender, the reduction of crime, rehabilitation of offenders, the protection of the public and reparation by offenders is the five main purposes of sentencing. Restorative justice argues they can satisfy these purposes, but for this to be proven, restorative justice needs a chance[25]. Government doing its job in a very serious manner The goal of reintegrating offenders into the law-abiding community and provide better treatment to the victims is the main goal to achieve.

INTERNATIONAL AUTHORTIES, ORGANISATIONS , POLICIES AND CONCERNS WHO DEALS WITH THE JUSTICE OF THE VICTIMS

UN General Assembly Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power constituted an important recognition of the need to set norms and minimum standards in international law for the protection of Victims of crime.[26] The U.N. Declaration recognized four major components of the rights of victims of crime -

1. Access to justice and fair treatment

Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.[27]

2. Restitution

Offenders or third parties responsible for their behavior should, where appropriate, make fair restitution to victims, their families or dependants. Such restitution should include the return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the victimization, the provision of services and the restoration of rights.[28]

3. Compensation

When compensation is not fully available from the offender or other sources, States should endeavor to provide financial compensation to:

(a) Victims who have sustained significant bodily injury or impairment of physical or mental health as a result of serious crimes;

(b) The family, in particular dependants of persons who have died or become physically or mentally incapacitated as a result of such victimization.

4. Assistance

Victims should receive the necessary material, medical, psychological and social assistance through governmental, voluntary, community-based and indigenous means.[29] Victims should be informed of the availability of health and social services and other relevant assistance and be readily afforded access to them.Police, justice, health, social service and other personnel concerned should receive training to sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid.

IMPACT OVER THE VICTIMS OF

INTERNATIONAL CRIME

The victims of crimes committed in the context of internal armed conflict have for the most part suffered particularly serious violence affecting not just one individual in particular but thousands of members of a community or of an ethnic, religious or national group[30]. This can be following consequences.

· The probability of trauma grows in proportion to the scale of the violence. In the case of human rights violations, it is often entire communities that are the target of violence and genocide on ethnic, political, ideological or economic grounds.

· The victims of crime under national law, the victims of international crimes seek to understand why they were the target and what their aggressors’ motives were, in an attempt to regain control of their lives and give meaning to their experience.

· Above all victim feel a need to understand why the social group to which they belong was the target of these crimes. The quest for truth is not therefore confined to the individual and his personal identity, but concerns also the community.

· The wrong suffered by the victim also has an effect on his identity as a member of a given group. This fact increases still further the risk of psychological trauma. Victims in the context of international conflict are affected not only as regards their perception of self, of others and of their conception of justice.

· Victims are also affected in their relationship with their community. Moreover, the purpose of attacking a population or social group as part of an armed conflict by means of large-scale violence and collective massacres is often to destabilize

INTERNATIONAL NORMS RELATED TO VICTIMS

· The birth of the international human rights law the relatively recent interest in victims find its origin in the social situation created after world war II . As a consequence of this dramatic experience a legislative policy began to coordinate measures in order to revitalize the intervention of the victim in particular within the criminal proceedings.

· This initiative become more intense in the 1980s state and international organizations began to codify law on the matter related to the victims specifically and assemble International norms of a different nature .

· They are also norms of different territorial range like General Universal and Regional

· Still most of the rights building the International Statute of the victim are still rights enshrined in International Treaties. Mainly human right treaties ratified by the large majority of states but with all these concern only making norms for victims also become the priority and the International Concern make specific rights for every such human being who comes into the category of victim become a next level concern to work on.[31]

GENERAL OR UNIVERSAL CHARTER:

UNITED NATIONS

In the frame of the United Nations there are at the moment three instruments relating to the victims are formed

· GENERAL ASSEMBLY RESOLUTION 40/43 adopted on 29 November 1985 the declaration of basic principles of justice for victims of crime and abuse of power. This declaration contains several concepts of victim as well as a catalogue of rights to which victims are entitled to mainly the right to access of justice and fair treatment which is linked to reparation as well as to the establishment[32] and strengthening of Judicial and Administrative mechanisms to enable victims to obtain redress. A few years later this declaration was followed by

· THE DECLARATION ON PROTECTION OF ALL PERSONS from enforced disappearance adopted by the general assembly in its resolution A/RES/47/133 of 18 December 1992.

· On the same subject on 20 December 2006 by resolution A/RES/61/177. The general assembly adopted the international convention for the protection of all persons from enforced disappearance .Country to the declaration of 1992 international convention gives a definition of enforced disappearance is considered to be the arrest detention abduction or any other form of deprivation of liberty by agents of the states or by persons acting with the authorization support for acquiescence of the state followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person which place such a person outside the protection of the law.

Both the declaration of 1992 and the convention of 2006 contain a catalogue of rights to which victims of enforced disappearance are entitled to. Basically the mentioned right to justice which also includes the right to a prompt and effective judicial remedy and the right to know the truth regarding the circumstances of the enforced disappearance the progress and result of the investigation and the fate of the disappeared person the right of access to all information[33] concerning the person deprived of his liberty, the right to form and participate freely in organizations and associations concerned with attempting to establish the circumstances of enforced disappearance and the fate of the disappeared person , the right to assist victims of enforced disappearance and last but not least the right to obtain reparation and prompt fair and adequate compensation . The question of reparation is conceived by the convention of 2006 with a double effect[34]. On the one hand the right to obtain reparation covers material and moral damages. But on the other hand this right where appropriate also covers other forms of reparation.

UNITED STATES OF AMERICA: PARTICULARLY ON CRIME VICTIMS

Crime victim’s rights laws in the United States date back to the late 1800, with the enactment of a limited number of the restitution statutes. In the year 1966, California became the first state to enact a Victim Compensation Law. In USA, California was the first state to introduce laws to compensate the victim of violent crimes in 1965 and, as of now, majority of the states have such programs. [35]

In U.S.A. the compensation are being provided to the victims under both Federal and as well as under States laws. Rights of Victims under Federal Laws Federal Governments have passed many laws to provide the rights to the victims particularly right of restitution and compensation.[36]

The Victim and Witness Protection Act of 1982 (VWPA) was considered landmark legislation in 1982 because, for the first time, rights for victims of federal crimes were established, including:

(i) The fair treatment of victims and witnesses in the federal criminal justice system.

(ii) The right to include victim impact statements in presentence investigation reports.

(iii) New criminal penalties to protect victims and witnesses from intimidation, harassment, and retaliation, including provisions for civil restraining orders.

(iv) Restitution for the victim.

(v) Consideration of victim’s interest in bail decisions.

After two years of VWPA, Congress enacted the Victims of Crime Act of 1984 (VOCA) to provide funding for victim assistance,

· Victim compensation and training and technical assistance for victim service providers across the nation.

Crime Control Act of 1990 contained a wealth of new legislation and amendments to the existing federal criminal code affecting the treatment of crime victims, including children.

Title V, the Victim’s Rights and Restitution Act of 1990, created a Federal Crime Victims’ Bill of Rights and codified services that should be available to victims. The Victims of Child Abuse Act of 1990, contained extensive amendments to the federal rules of criminal procedure affecting the treatment of child victims and witnesses in the federal system, e.g. allowing the use of closedcircuit television and videotaped dispositions of children.

Title XXXI, Bankruptcy and Restitution, protected victims by preventing drunk driving offenders from discharging debts arising from offenses under Chapter 13 of the bankruptcy code.

Federal Crime Victims’ Bill of Rights was historic and paralleled legislative activity in the states. Section 502 of the Act mandated that federal officials…. 110 Shall make their best efforts to see that victims of crime are accorded the rights described in subsection B.29 Four years later, Congress enacted comprehensive crime legislation entitled the Violent Crime Control and Law Enforcement Act of 1994 (Crime Act).[37]

The Mandatory Victims Restitution Act of 1996 amends the federal criminal code to require judges to order mandatory restitution for victims of violent crime, certain property offenses, fraud, and consumer product tampering. In the Attorney General Guidelines for Victim and Witness Assistance 1995 As a result of the passage of the 1994 Violent Crime Control and Law Enforcement Act, the Attorney General revised and re-issued new comprehensive guidelines to establish procedures for the federal criminal justice system for implementing victims right and assistance as enacted under federal law.

AN APPRASAL OF U.N. DECLARATION

The UN Declaration has opened upto new vistas in compensatory jurisprudence. Unlike the earlier international conventions and Declarations, the Declaration of 1985 specifically provides comprehensive principles related to payment of compensation to the victims of crime and abuse of power.

This Declaration deals with various aspects of victim compensation like the concept of victim, the rights of the victims, the modes of restitution and other incidental aspects, like social and health care assistance, etc. The Declaration has made a positive attempt in evolving concrete principles for doing justice to the victims of crime and abuse of power. It also provides several constructive victim compensation programs that can be taken up by the international community to compensate the victims.

The Declaration gives a broader meaning to the term victim. It includes not only the real victim himself but also the immediate family and dependants. The Declaration ensures the victims of the crime to get the required assistance and access to justice and fair treatment.[38] It gives victim importance in view of the fact that a victim is normally forgotten in the entire system of administration of criminal justice.

The Declaration visualizes the establishment of judicial and administrative mechanism to enable the victim to get remedy through formal or informal procedures that are expeditious, fair, inexpensive and accessible.[39] Thus, the Declaration emphasis on settlement of victim compensation that can be claimed through formal or informal procedures only.

The traditional criminal administration of justice system victim compensation settlement takes lot of time because of the technicalities and intricacies involved. For the first time in Criminal Justice System, the Declaration proclaims the rights of the victims i.e. the right to information about progress of the proceedings, the right to air his views and concerns at appropriate stages of the proceedings, right to privacy when necessary, right to speedy disposal of the cases protects individual dignity and honor of the victim and make human active participant in the process of administration of criminal justice system. It enables proper and fair estimation of damages caused to the victim and determines a just, fair and reasonable compensation.

INTERNATIONAL CRIMINAL COURT

The need for setting up separate victim and witness protection units in the trial of mass crimes has been acknowledged in the setting up of international tribunals to deal with them. It mandates the court to take appropriate measures to protect the safety, physical and psychological well being, dignity and privacy of victims and witnesses. Rights of the Victims under International Criminal Court

THE ROME STATUTE AND INTERNATIONAL CRIMINAL COURT

With the adoption of “The Rome Statute of the International CriminalCourt” (Roman Statute) dated 17th July, 1998. It emphasizes on reparation for victims and most of the Basic Principles and Guidelines on reparation have been drawn up within the auspices of United Nation Commission on Human Rights. The Roman Statute is the first international statute which allows victims to claim reparation against the offender. The Rome Statute, adopted in 1998, sets up an International Criminal Court (hereafter ICC).[40] It entered into force in July 2002. The Court is the first permanent international tribunal which is empowered to prosecute individuals, not States, accused of genocide, war crimes or crimes against humanity. It also includes the crime of aggression The court is to be complementary to national judicial systems and will be able to assume jurisdiction only after it determines that a national system in unwilling or unable to prosecute the crimes relevant to the Statute.[41] The Rome Statute offers a more universal model of how the legal system can respect legitimate victims’ rights without prejudice to a fair trial for the accused. It declares, “Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.”

UNITED KINGDOM

The provision of compensation to the victims of crime started in the United Kingdom under the Criminal Injuries Compensation Scheme, 1964. A Criminal Injuries Compensation Board was constituted. The basis of the quantum of compensation is the same as that of damages in civil injuries and the money payable is for pain and suffering, loss of earning capacity and out of pocket expenses. Under the revised scheme of 1973, it was now possible to give compensation for injuries caused by one family member to another. The cost involved in implementing the programme was enormous. In U.K. a sum of approximately six million pound sterling was paid in 1976 as compensation for 16,000 claims and there was annual increase of 15% in the costs. Administrative expenditure itself accounts for 11% of the disbursement. The Criminal Justice Act, 1991 contains a number of provisions which directly or indirectly encourages a greater role for compensation.

In England, the Criminal Justice Act, 1988 transformed the Criminal Injuries Compensation Board (CICB), from a body created and supported by administrative fiat to a statutory body. However, the CICB is still faced with a number of problems, including a backlog of cases, increasing cost and criticism over decisions according to which an award is reduced or refused, for example, the victim was partially to be blamed for the offence. In the UK, Criminal Justice Act, 1988 has made fresh provisions for payment of compensation by the Criminal Injuries Compensation Board.[42] A specialised legislation called ‘The Code of Practice for Victims of Crime’ sets out the services that the Victim can expect to receive from each of the criminal justice agencies, like the police and the Crown Prosecution Service. Nowadays, United Kingdom has introduced an effective rehabilitation mechanism through the Criminal Injuries Compensation Act, 1995 redressing the needs of Victims of Crime.[43]

SOUTH AFRICA

The Service Charter for Victims of Crime in South Africa is an important instrument that promotes justice for victims of crime in South Africa. The Victims Charter is in spirit with the South African Constitution, 1996 (Act 108 of 1996) and the United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, 1985 Historically, the Victims Charter can date back to the National Crime Prevention Strategy,[44] 1996 as well as the National Victim Empowerment Programme, 1998.The Victims Charter presents a rights framework for services provided under the Victim Empowerment Programme (VEP). In South Africa, victim of crime has following rights, as contained in the Constitution and relevant legislation will be upheld in your contact with the criminal justice system

· The right to be treated with fairness and with respect for dignity and privacy

· The right to offer information

· The right to receive information

· The right to protection

· The right to assistance

· The right to compensation

· The right to restitution

VICTIMS RIGHTS IN NEW ZEALAND

Newzealand, emerged as the first country to have established a program of compensation to victim of crime. It enacted the Criminal Injuries Act, 1963. In 1964 a Criminal Injuries Compensation Board was established to manage the scheme of compensation to victims of crime.[45] The power of the Tribunal to award compensation is discretionary not only as to the amount of compensation but also to the making of an order of compensation. The Victims of Offences Act 1987 (1987 No 173) which was repealed by Victim’s Rights Act 2002 also gave many rights to victims. The Victims’ Rights Act 2002 has made comprehensive provisions for rights of victims.[46]

CANADA

In Canada compensation program was first initiated in Ontario in 1967 under The Law Enforcement Compensation Act. It was re-enacted in 1971 and further amended in 1973 Ontario program granted compensation both for injuries and death resulting from crimes of violence.[47] Compensation is also granted for injuries sustained while preventing or attempting to prevent an offence and for lawfully arresting. The Canadian provisions that govern compensation were amended in 1996, when compensation order provisions were replaced with restitution order provisions.9 Earlier it was available only for loss, destruction, or damage of property, the introduction of restitution order provisions allowed awards for fiscal damages, such as loss of income or support as a result of bodily harm due to an offence, or relocation expenses. Furthermore, orders of restitution were no longer required to be initiated by the victim, but could also be ordered by the sentencing court.

The Law Reform Commission of Canada endorsed restitution in 1974. “Restitution involves acceptance of the offence as a responsible person with the capacity to undertake constructive and socially approved acts. It challenges the offender to see the conflict in values between himself, the victim and society. In particular, restitution invites the offender to see his conduct in terms of the damage it has done to the victim’s rights and expectations. It contemplates that the offender has the capacity to accept his full or partial responsibility for the alleged offence and that he will in many cases be willing to discharge that responsibility by making amends.”Restitution differs from compensation, which occurs when the state pays the crime victim for financial and other losses,[48] such as pain and suffering.

Restitution orders can be applied in various ways in Canada: as a stand-alone order, given as an additional sentence.

In 1983, the Federal Provincial Task Force on Justice for Victims made several recommendations regarding restitution. In 1986, the Canadian Sentencing Commission recommended that judges be required to consider restitution in all cases and the court be empowered to impose jail terms where the offender willfully defaults on payment. Currently, Canadian crime victims have no right to make a direct application to the court for restitution (except in Alberta, Saskatchewan and Nova Scotia), although they can outline the financial impact of the crime in their victim impact statements.[49] If an offender fails to pay restitution, it is up to the victim to pursue payment in civil court.

AUSTRALIA

In Australia, the Government enacted a new law to increase maximum compensation available to victim with effect from Ist of September, 1990. The Government recognized the right of victim by implementing the 1985 United Nations Declarations on the Right of Victims.[50] The past three decades have seen the introduction of systems of compensation for victims of crime. Victims of crime may apply for compensation to reimburse their out of pocket expenses, such as medical or funeral costs, and/or for a lump sum payment that can be used for any purpose. However, financial assistance from crime victim compensation, where it is available, is typically limited to victims of violent crime, and sometimes also to cases where financial hardship can be shown.

In Australia there is considerable variation between the jurisdictions as to the amount of compensation that a victim of crime might receive. The maximum entitlement ranges from $10,000 in Tasmania to $75,000 in Queensland, with the result that victims of comparable crimes might receive significantly different amounts of compensation, depending on where the compensation application is considered.[51]

INDIA

The Indian Constitution has several provisions which endorse the principle of victim compensation. The constellation of clauses dealing with Fundamental Rights (Part III) and Directive Principles of State Policy (Part IV) laid the foundation for a new social order in which justice, social and economic, would fl owner in the national life of the country (Article 38). Article 41, which has relevance to victimology in a wider perspective, mandates, inter alia, that the state shall make effective provision for “securing public assistance in cases of disablement and in other cases of undeserved want”. Surely, crime victims and other victimized people swim into the haven of Article 41. Article 51-A makes it a fundamental duty of every citizen of India “to protect and improve the natural environment … and to have compassion for living creatures” and “to develop humanism”. If empathetically interpreted and imaginatively expanded, we find here the constitutional beginnings of victimology (Krishna Iyer, 1999)[52]. Further, the guarantee against unjustified deprivation of life and liberty (Article 21) has in it elements obligating the state to compensate victims of criminal violence (Basu, 2003). Provisions in Indian Criminal Laws. The Code of Criminal Procedure, 1973 has recognized the principle of victim compensation. Section 250 authorizes magistrates to direct complainants or informants to pay compensation to people accused by them without reasonable cause. Again Section 358 empowers the court to order a person to pay compensation to another person for causing a police officer to arrest such other person wrongfully[53]. Finally, Section 357 enables the court imposing a sentence in a criminal proceeding to grant compensation to the victim and order the payment of costs of the prosecution. However, this is on the discretion of the sentencing court and is to be paid out of the fine recovered. Though the principle underlying Section 357 of the Code of Criminal Procedure, 1973 is very much the same sought to be achieved by the UN Basic Principles of Justice for Victims of Crime, its scope is extremely limited as:

1. The section applies only when the accused is convicted;

2. It is subject to recovery of fi ne from the accused when fine is part of the sentence;

3. When fine is not imposed as part of the sentence, the magistrate may order any amount to be paid by way of compensation for any loss or injury by reason of the act for which the accused person has been so sentenced (Sec. 357(3));

4. In awarding the compensation, the magistrate is to consider the capacity of the accused to pay.

Given the low rates of conviction in criminal cases (less than 10 percent), the inordinate delay in the conclusion of proceedings and the relatively low capacity of the average accused persons,[54] it is preposterous to say that a victim compensation scheme really operates in administration of justice in India (Madhava Menon, 2004: 363). Besides the above provisions relating to restitution to victims under the Code of Criminal Procedure, 1973, Section 5 of the Probation of Off enders Act, 1958 has also empowered the courts to require released offenders to pay the restitution and costs as under:

1. The court directing the release of an offender under Section 3 or Section 4 may, if it thinks fit, make at the same time a further order directing him to pay: a. Such restitution as the court thinks reasonable for loss or injury caused to any person by the commission of the offence; and b. Such cost of the proceeding as the court thinks reasonable[55].

2. The amount ordered to be paid under subsection (1) may be recovered as a fi ne in accordance with the provisions of Sections 357 and 358 of the Code.

3. A civil court trying any suit out of the same manner for which the off ender is prescribed, shall take into account “any amount paid or recovered as restitution under subsection (1) in awarding damages” (Ranchhoddas and Thakore, 2002).

In addition to the existing provisions under the Indian criminal laws, a considerable importance was given in the Report of the Committee on Reforms of Criminal Justice System, headed by Justice V. S. Malimath on the need to provide “justice to victims of crime”.[56]

Committee on Reforms of Criminal Justice System

The Government of India, Ministry of Home Affairs by its order dated 24 November 2000 constituted the Committee on Reforms of Criminal Justice System to consider measures for revamping the criminal justice system. One of the objectives of the committee was “to suggest ways and means of developing synergy among the judiciary, the prosecution and the police to restore the confidence of the common man in the criminal justice system by protecting the innocent and the victim and by punishing unsparingly the guilty and the criminal”.

While referring to the position of victims in the criminal justice system in India today, the committee observed “that victims do not get at present the legal rights and protection they deserve to play their just role in criminal proceedings which tend to result in disinterestedness in the proceedings and consequent distortions in the criminal justice administration” (Government of India, 2003).[57]

With this general observation the committee reviewed the position of victims under the criminal justice system, including the present role that the victim is assigned under the existing criminal law; provisions for compensation of victims of crime and so on.[58]

The report has also highlighted how the Supreme Court and the High Courts in India have evolved the practice of awarding compensatory remedies not only in terms of money but also in terms of other appropriate reliefs and remedies. The report stated “medical justice to the Bhagalpur blinded victims, rehabilitative justice to the communal violence victims and compensatory justice to the Union Carbide victims are examples of the liberal package of reliefs and remedies forged by the apex court.[59]

The decisions in Nilabati Behera v. State of Orissa (1993 2 SCC 746) and in Chairman, Railway Board v. Chandrima Das (2000 Cr LJ 1473 SC, cited in Government of India 2003 are illustrative of this new trend of using constitutional jurisdiction to do justice to the victims of crime. Substantial monetary compensations have been awarded against the instrumentalities of the state for the failure to protect the rights of the victims”.

The committee also examined the rights of the victims of crime in diff erent criminal justice systems worldwide. The committee was impressed with the report on “Criminal Justice: The Way Ahead” presented to the British Parliament in February 2001, as the report proposed various amendments and recommendations

The Committee made the following recommendations:

1. The victim, and if he/she is dead, his legal representative shall have the right to be impleaded as a party in every criminal proceeding where the charge is punishable with 7 years imprisonment or more.

2. In select cases notified by the appropriate government, with the permission of the court an approved voluntary organization shall also have the right to implead in the court proceedings.

3. The victim has a right to be represented by an advocate of his/her choice; provided that an advocate shall be provided at the cost of the State if the victim is not in a position to afford a lawyer.

4. The victim shall have the right to participate in criminal trial.

5. The victim shall have a right to prefer an appeal against any adverse order passed by the court acquitting the accused, convicting for a lesser off ence, imposing inadequate sentence, or granting inadequate compensation. Such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court.

6. Legal services to victims in select crimes may be extended to include psychiatric and medical help, interim compensation and protection against secondary victimization.[60]

7. Victim compensation is a state obligation in all serious crimes, whether the off ender is apprehended or not, convicted or acquitted. This is to be organized in a separate legislation by the Parliament. The draft bill on the subject submitted to the Government in 1996 by the Indian Society of Victimology provides a tentative framework for consideration.[61]

8. The victim compensation law will provide for the creation of a victim compensation fund to be administered possibly by the Legal Services Authority.[62]

CONCLUSION

In the current decade of victimological research, there is a substantial interest in the study of impact of crime on victims and ways to assist them. Assistance to victims of crime is of great significance because victims have suffered irreparable damages and harm as a result of crime. The problems of crime victims and the impact of crime on them is varied and complex. Therefore, the agencies of the criminal justice system should be receptive to the needs of the victims of crime and address their issues sincerely and empathetically. Like in the United States, Europe and the other developed countries, both the Government of India and the State Governments should enact exclusive legislations for victims of crime, as the existing provisions in the criminal laws are not sufficient. A ray of hope is the recommendations of the Committee on Reforms of Criminal Justice System headed by Justice V. S. Malimath. The Committee has emphasized the need for a paradigm shift in the justice system. Hence, the Government of India may have to take efforts to implement the recommendations of the Committee on Reforms of Criminal Justice System. There should also be a change in the focus from criminal justice to victim justice, but victim justice should be perceived as complementary and not contradictory to criminal justice.

[1] Michael Rand and Shannan Catalano, Criminal Victimization, 2006 (Washington DC: U.S. Department of Justice, Bureau of Justice Statistics, 2007), 3, http://www.ojp.usdoj .gov/bjs/pub/pdf/cv06.pdf

[2] Jana L. Jasinski, “Police Involvement in Incidents of Physical Assault: Analysis of the Redesigned National Crime Victimization Survey,” Journal of Family Violence 18 (2003): 143–50.

[3] Jana L. Jasinski, “Police Involvement in Incidents of Physical Assault: Analysis of the Redesigned National Crime Victimization Survey,” Journal of Family Violence 18 (2003): 143–50

[4] Mawby and Walklate, Critical Victimology

[5] Stephen G. Spitzer, Joseph Luorno, and Léon-Paul Noël, “Isolated Subconjunctival Hemorrhages in Nonaccidental Trauma,” Journal of American Association for Pediatric Ophthalmology and Strabismus 9 (2005): 53–56.

[6] . C. Henry Kempe et al., “The Battered-Child Syndrome,” Journal of the American Medical Association 181 (1962): 17–24.

[7] Hope Toffel, “Crazy Women, Unharmed Men, and Evil Children: Confronting the Myths About Battered People Who Kill Their Abusers, and the Argument for Extending Battering Syndrome Self-Defenses to All Victims of Domestic Violence,” Southern California Law Review 70 (1996): 350.

[8] Kristi Baldwin, “Battered Child Syndrome as a Sword and a Shield,” American Journal of Criminal Law 29 (2001): 59–82.

[9] Federal Bureau of Investigation, “Uniform Crime Reports,” http://www.fbi.gov/ ucr/ucr.htm.

[10]Jerry K. Daday et al., “Individual, Neighborhood, and Situational Factors Associated with Violent Victimization and Offending,” Criminal Justice Studies 18, no. 3 (2005): 215–35.

[11] Zick Rubin and Letitia Anne Peplau, “Who Believes in a Just World?” Journal of Social Issues 31, no. 3 (1975): 65–89.

[12] Marvin Wolfgang, Patterns in Criminal Homicide (Philadelphia, PA: University of Pennsylvania Press, 1958), 245–64.

[13] Menachem Amir, Patterns in Forcible Rape (Chicago: University of Chicago Press, 1971), 259–64, 275–76.

[14] Helen Eigenberg, “Victim Blaming,” in Controversies in Victimology, ed. Laura J. Moriarty (Cincinnati, OH: Anderson, 2003), 15–24; Doug A. Timmer and William H. Norman, “The Ideology of Victim Precipitation,” Criminal Justice Review 9, no. 2 (1984): 63–68.

[15] Kirsten Holmberg and Anders Hjern, “Bullying and Attention-Deficit Hyperactivity Disorder in 10-Year-Olds in a Swedish Community,” Developmental Medicine & Child Neurology 50, no. 2 (2008): 134–38.

[16]American Psychological Association (APA), “School Bullying is Nothing New, But Psychologists Identify New Ways to Prevent It,” APA, http://www.psychologymatters .org/bullying.html.

[17] Kenneth W. Merrell et al., “How Effective are School Bullying Intervention Programs? A Meta-Analysis of Intervention Research,” School Psychology Quarterly 23, no. 1 (2008): 26–42.

[18] . Federal Bureau of Investigation, “UCR Data,” http://www.fbi.gov/ucr/ucr.htm.

[19] Caroline McGraw and Vari Drennan, “Assessing the Needs of Older Burglary Victims: A Link Nurse Scheme,” British Journal of Community Nursing 11 (2006): 414–19.

[20] Personal account of author during a 1995 internship with the Sault Ste. Marie (Ontario) City Police Department.

[21] U.S. Department of Justice, “NCVS Data,” African Americans show declining risk around $25,000 a year income and then a dramatic increase as income rises.

[22] Frank Schmallager, Criminal Justice Today (Upper Saddle River, NJ: Prentice Hall, 2009).

[23]Burglary Investigations,” International Journal of the Sociology of Law 27 (1999): 413–31; Mike Maguire, “The Impact of Burglary Upon Victims,” British Journal of Criminology 20 (1980): 261–75.

[24] Christina Maslach, Wilmar Schaufeli, and Michael Leiter, “Job Burnout,” Annual Review of Psychology 52 (2001): 397–422.

[25] A. M. Rosenthal, Thirty-Eight Witnesses: The Kitty Genovese Case (New York: McGraw-Hill, 1964).

[26] . John M. Darley and Bibb Latane, “Bystander Intervention in Emergencies: Diffusion of Responsibility,” Journal of Personality and Social Psychology 8, no. 4 (1968): 377–83.

[28] Bibb Latane and John M. Darley, “Group Inhibition of Bystander Intervention in Emergencies,” Journal of Personality and Social Psychology 10, no. 3 (1968): 215–21.

[29] Patrick M. Markey, “Bystander Intervention in Computer-Mediated Communication,” Computers in Human Behavior 16 (2000): 183–88.

[30] United States of America v. Miami University of Ohio, 91 F. Supp. 2d. 1132 (2000), later reaffirmed in 2002 by the Sixth Circuit Court of Appeals (294 F.3d 797).

[31]. U.S. Department of Justice, Criminal Victimization in the United States, 2006 (Washington DC: Office of Justice Programs, Bureau of Justice Statistics. NCJ-223436, 2008)

[32] U.S. Department of Justice, National Estimates of Missing Children: An Overview (Washington DC: Office of Justice Programs, Bureau of Justice Statistics. NCJ-196465, 2002).

[33] Richard J. Gelles, “Social Change and Change in Family Violence from 1975 to 1985 as Revealed by Two National Surveys,” Journal of Marriage and Family 48 (1986): 465–79.

[34] Murray A. Straus, Richard J. Gelles, and Suzanne K. Steinmetz, Behind Closed Doors: Violence in the American Family (Beverly Hills, CA: Sage, 1980).

[35]Ronald L. Simons, Leslie G. Simons, and Lora E. Wallace, Families, Delinquency, and Crime: Linking Society’s Most Basic Institution to Antisocial Behavior (New York: Oxford University Press, 2004).

[36] Gelles, and Suzanne K. Steinmetz, Behind Closed Doors: Violence in American Families (New Brunswick, NJ: Transaction, 2006).

[37] Mario Gaboury, “Financial Assistance for Victims of Crime,” National Victim Assistance Academy, http://www.ojp.usdoj.gov/ovc/assist/nvaa99/chap5-1.htm.

[38] Office for Victims of Crime, “Civil Remedies,” U.S. Department of Justice, http://www.ojp.usdoj.gov/ovc/new/directions/pdftxt/chap16.pdf.

[39] Office for Victims of Crime, “Civil Remedies,” U.S. Department of Justice,http://www.ojp.usdoj.gov/ovc/new/directions/pdftxt/chap16.pdf.

[40] Susan Kiss Sarnoff, Paying for Crime: The Policies and Possibilities of Crime Victim Reimbursement (Westport, CT: Praeger, 1996)

[41]Dean J. Champion, Probation, Parole, and Community Corrections, 4th ed. (Upper Saddle River, NJ: Prentice Hall, 2002).

[42] Andrew Karmen, Crime Victims: An Introduction to Victimology (Belmont, CA: Wadsworth, 1990), 307.

[43] National Association of Crime Victim Compensation Boards (NACVCB), “Crime Victim Compensation: An Overview,” NACVCB, http://www.nacvcb.org/articles/ Overview_prn.html.

[44]. Washington State Department of Labor & Industries, “About Crime Victims Compensation,” Washington State Department of Labor & Industries, http://www.lni .wa.gov/ClaimsIns/CrimeVictims/About/default.asp.

[45] Susan S. Siverman, “The Effect of Victim Compensation Programs Upon Conviction Rates,” Sociological Symposium 25 (1979): 40.

[46] Eric J. Fritsch, Tory J. Caeti, and Peggy M. Tobolowsky, “Police Referrals of Crime Victims to Compensation Sources: An Empirical Analysis of Attitudinal and Structural Impediments,” Police Quarterly 7 (2004): 372.

[47] Robert Elias, The Politics of Victimization: Victims, Victimology, and Human Rights (New York: Oxford University Press, 1986), 212.

[48] Andrew Karmen, Crime Victims: An Introduction to Victimology, 6th ed. (Belmont, CA: Wadsworth, 2006), 319–22.

[49] Frank Schmalleger and John Ortiz Smykla, Corrections in the 21st Century, 2nd ed. (Blacklick, OH: McGraw Hill, 2005), 512.

[50] Edward Rhine, ed., Excellence in Corrections: Best Practices (Alexandria, VA: American Correctional Association Press, 1998), 471.

[51] The National Center for Victims of Crime, “For Victim Services in Corrections,” http://www.ncvc.org.

[52] Kip Kautzky, Victim Impact Panels: The Restorative Justice Way (Middletown, CT: ASCA Press, 2000), 141.

[53] The National Center for Victims of Crime, “For Victim Services in Corrections,” http://www.ncvc.org, 14.

[54] Michael Johnston, Political Corruption and Public Policy in America (Belmont, CA: Wadsworth, 1982).

[55] Lawrence W. Sherman, Police Corruption: A Sociological Perspective (New York: Doubleday, 1974); Johnston, Political Corruption, ch. 4.

[56] John Stossel, “Government Corruption is Legal Thievery,” Tyler Morning News, December 20, 2008, 4A.

[57] . United States Congress, Child Abuse Prevention and Treatment Act (42 USC 5101 et seq; 42 USC 5116 et seq, 1974).

[58] National CASA Association, Annual Report (Seattle, WA: National Court Special Advocate Association, 2007).

[59]National CASA Association, “About Us,” http://www.nationalcasa.org/about_us/mission .html.

[60] Pat Litzelfelner, “Consumer Satisfaction with CASAs (Court Appointed Special Adcovates),” Children and Youth Services Review 30, no. 2 (2008): 173–86.

[61] Donald N. Duquette, Advocating for the Child in Protection Proceedings (Lexington, MA: Lexington Books, 1990).

[62] Albert Eglash, “Beyond Restitution: Creative Restitution,” in Restitution in Criminal Justice, eds. Joe Hudson and Burt Galaway (Lexington, MA: Lexington Books, 1975).

Article Information

“RIGHTS OF VCTIM AND INTERNATIONAL ORGANISATION”

Authors: PRAGYATA SINGH

Journal IJLRA
ISSN 2582-6433
Published 2023/06/26
Issue 7

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