Justice for Victims of Crime: Human Dignity as the Foundation of Criminal Justice in Europe PDF
Preview Justice for Victims of Crime: Human Dignity as the Foundation of Criminal Justice in Europe
Albin Dearing Justice for Victims of Crime Human Dignity as the Foundation of Criminal Justice in Europe Justice for Victims of Crime Albin Dearing Justice for Victims of Crime Human Dignity as the Foundation of Criminal Justice in Europe AlbinDearing FreedomandJusticeDepartment EuropeanUnionAgencyforFundamentalRights Vienna,Austria ISBN978-3-319-45046-9 ISBN978-3-319-45048-3 (eBook) DOI10.1007/978-3-319-45048-3 LibraryofCongressControlNumber:2016952526 ©SpringerInternationalPublishingSwitzerland2017 Thisworkissubjecttocopyright.AllrightsarereservedbythePublisher,whetherthewholeorpartof the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilarmethodologynowknownorhereafterdeveloped. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publicationdoesnotimply,evenintheabsenceofaspecificstatement,thatsuchnamesareexempt fromtherelevantprotectivelawsandregulationsandthereforefreeforgeneraluse. Thepublisher,theauthorsandtheeditorsaresafetoassumethattheadviceandinformationinthis book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained hereinor for anyerrors oromissionsthat may havebeenmade. Thepublisher remainsneutralwith regardtojurisdictionalclaimsinpublishedmapsandinstitutionalaffiliations. Printedonacid-freepaper ThisSpringerimprintispublishedbySpringerNature TheregisteredcompanyisSpringerInternationalPublishingAG Theregisteredcompanyaddressis:Gewerbestrasse11,6330Cham,Switzerland Fu€r Helene, Johannes und Mateo Preface What this Book is About? Inasense,thisbooksuggestsaredefinitionoftheterm‘crime’.Currently,‘crime’ denotesaviolationofcriminallawprovisions.Thisbookclaimsthat‘crime’should be understood as the violation of the human rights of an individual (or of indi- viduals)andthattheresponsestocriminaloffencesshouldreflectthisunderstanding. Togiveanexample,ifapersonthreatensanotherwithagundemandingthatshe hand over her money, this would commonly be seen as a violation of a criminal code’slegalprovisionprohibitingarmedrobbery.However,itissuggestedherethat thisincidentshouldprimarilybeinterpretedasaviolationofanindividual’srights not to be threatened with violence and to the respect of her property, as well as a behaviourthatisdisrespectfultothisindividualasaperson.Hence,whatthisbook maintainsisthatthecrimeofarmedrobberyshouldnotbereducedtotheviolation of a (nation) state’s laws, but should appreciate what it means to the victim as a personandmemberofthehumanfamily—theviolationofherdignityandrights. Based on a sketch of a human-rights based criminal justice system previously published by the author (2003), this book makes an effort to elaborate this redef- inition of ‘crime’—as a rights violation beyond a law violation—because unless ‘crime’ is defined in a manner relating it to the rights and personhood of an individual (or individuals), courts will fail to deliver justice to victims, and the rights of victims will not fully materialise. Only once we acknowledge what the criminaloffencemeanstothevictimasapersonholdingrightsandthatthevictim, forwhattheoffencemeanstoher,isentitledtothesolidarityofherlegalcommu- nity, will rights of victims become a significant part of the everyday reality of criminaljusticeinEurope. Hence, this book is about victims of crime and victims of severe human rights violations and about how these two categories can be inextricably linked to one anotherbyare-conceptualisationof‘crime’.Anyeffectivesystemofhumanrights, soitismaintained,isdependentoncriminallawprotection.However,toeffectively vii viii Preface protect human rights, mere legal provisions are not enough. If the police, public prosecutors’officesandcriminalcourtsfailtobringoffenderstojustice,if,inother words,impunityofseverehumanrightsviolationsprevails,then,consequently,the humanrightsofindividualstolife,physicalintegrity,autonomy,andpropertyerode and lose their value, credibility and practical meaning. What then is at stake and what criminal justice defends is the authority and effectiveness of a system of human rights. Criminal justice is an indispensable means of avoiding a situation wherethoseresponsibleforseverehumanrightsviolationsarenotheldtoaccount, victims are not recognised and redressed and human rights are not defended and preserved. Thereversedependencyofcriminallawandcriminaljusticeonhumanrightsis of a different nature. While human rights cannot be effective without criminal justice,criminaljustice—soitwillbeargued—cannotbejustifiedinaconvincing manner except as a means of protecting human dignity and human rights. In a societycommittedtohumandignityasitsmoralandpoliticalbasis,theonlycon- vincingjustificationofcriminaljusticerestsinitscontributiontotheprotectionof humandignityandhumanrights. Inshort,whatshouldberecognisedasthelegitimateobjectiveofcriminaljustice ishumanrightsprotection,becausecriminaljusticeis,ontheonehand,indispens- able in this role and, on the other, without any legitimation to exist beyond this function.Aswillbeseen,thishumanrightsprotectioncentresonhumandignity,in whichthevictimandtheoffendershare.Therefore,inthefollowingchaptersmuch revolvesaroundtheconceptsofpunishmentandhumandignityandhowthesetwo conceptsinterlinkinaproperconceptof‘crime’. The Traditional View and a Fresh Start Many academics and practitioners working in the field of criminal justice do not supportthisinterpretationofcriminallaw.Intheiropinion,itisnotthevictimofa severehumanrightsviolation,butthestatethatisentitledtothepunishmentofthe offender;thereasonbeingthattheoffenceisviewedasessentiallynotaninfringe- mentofhumanrights,butaviolationofastate’scriminallawprovisionsprotecting publicorderandpublicinterests. However, according to consistent case-law of the European Court of Human RightsinStrasbourg(ECtHR)therighttoaneffectiveremedyunderArticle13of theEuropeanConventiononHumanRights(ECHR)grantscertainrightstovictims of serious human rights violations (see FRA 2014, pp. 25–28). In addition to the paymentofcompensationwhereappropriate,thiscomprisesarightto“athorough andeffectiveinvestigationcapableofleadingtotheidentificationandpunishment of those responsible,” including effective access for the victim to the procedure (CLR, para. 149). Unfortunately, the police and prosecutors are not always in a positiontoestablishtheevidencerequiredtobringoffenderstojustice,butinany caseauthoritiesmustobserveduediligence(Virabyan,para.178).Inthewordsof Preface ix the ECtHR (Mustafa Tunc¸, para. 173), the “obligation to conduct an effective investigation is an obligation not of result but of means: the authorities must take the reasonable measures available to them to secure evidence concerning the incidentatissue.” Hence,whatisreferredtointhetitleofthisbookasjusticeforvictimsofcrime has a firm basis in the right of a victim of a severe human rights violation to the competent authorities’ best efforts to ensure that offenders are identified, prose- cuted, convicted and, in appropriate cases, also punished. This book does not ask primarily whether victims of severe human rights violations are entitled to the identification, prosecution and punishment of offenders, as abundant case-law of theECtHRprovidessufficientevidenceinthisrespectalready.Instead,itenquires into the rationale of these rights and how this rationale relates these rights to the tasks of criminal justice. In the traditional perspective, the core task of criminal justice is the preservation of a state’s criminal law provisions, challenged by criminaloffences.Ifthatisfollowed,thenpayingattentiontotherightsofvictims, at best, complements, and is incidental to, the task of criminal justice, which however is primarily about convicting and sentencing offenders in the public interest represented by the state. If, on the other hand, a crime is a violation of therightsofanindividual,whoforthatreasonisacknowledgedasthevictimofthat crime, then the victim and her rights to the identification, conviction and, in appropriate cases, also punishment of offenders move from the sidelines to the centrestage.Aswillbeseen,itisexactlybecausetheoffenderviolatedfundamental rightsofthevictimthattheoffenderdeservestobeconvictedandpunished.Inany case,alldependsonhowoneconceptualisesthenotionofa‘crime’. Inlegalterms,victims’rightsare,first,amatterofsubstantive,notofprocedural law, amatter, thatis,ofwhatconstitutesacrimeandwhich rightsresult fromthe factthatacrimehasbeencommitted.TheECtHRinsiststhatvictimsshouldhave effectiveaccesstotheinvestigationprocedure.However,itishardlypromisingto introduce the victim to criminal proceedings if these proceedings, in the under- standing of the acting professionals, are not about the rights of individuals, but aboutpublicinterests.Ontheotherhand,iftheproceedingsareabouttheviolation ofthevictim’srightsandstatusasaperson,victims’proceduralrightswouldmerely reflectthisfact. Inotherwords,contradictoryanswerstothequestionoftheappropriateroleof victims in criminal proceedings originate from a deeper disagreement over the subjectmatterofcriminaljustice,ofwhat,thatis,constitutesacrime.Inthetradi- tional perspective, criminal offences are violations of a state’s criminal law pro- visions, and consequently criminal justice is fundamentally a matter between the offender and the state. Criminal justice, in this perspective, does not concern the victimasanindividualrights-holder,butatbestasawitnessandbystander.Hence, there is little to be gained in implanting the victim in the traditional system of criminaljustice. Victims’rightsarenotmerelyaboutpaintingthevictimintotheoldsceneryof criminal justice, but about reconstructing criminal justice on a new basis. What hencecanexplaincriminallawyers’reluctancetoreorientcriminaljusticetowards x Preface the objective of protecting human rights is the fact that, to affiliate the criminal justice system to a new objective, a few superficial corrections of criminal proce- durallawareindeednotsufficient.Whatisrequiredisanewconceptualisationof criminal justice from scratch on an entirely different foundation: from criminal justice protecting the law and public interests of a society to criminal justice protectingthedignityandrightsofindividuals. This book aims to begin work on this fundamental reconstruction and to help pavethewaytoacriminaljusticesystembasedonaconceptofhumandignityand human rights. For this purpose, the relevant human rights of individuals are ana- lysed. The right, that is, of a crime victim to the conviction and, in appropriate cases, also punishment of the offender, the right of an offender to, by being punished, take responsibility and on this basis come to terms with her society, as well as the legitimate interest of all other members of the legal community to trust in the effective protection of their rights, equal to the rights of victims and offenders. Taking all these rights seriously in rebuilding criminal justice requires the readiness to question many traits of the existing system, including those that todayappearasunquestionableandamatterofcourse.Itrequiresthewillingness, thatis,togiveupcherishedassumptionsandconcepts. Tothisend,abroaderconceptofcriminaljusticeisendorsed,whichadvocates that consideration should be given not only to the legal issue of a criminal law infringement, but also to those individuals of flesh and blood whose rights have beenviolated.Tothis,traditionalistopponentsanswerthatvictimsindeeddeserve tobesupportedandcompensated,butthatneitherofthesetaskswouldnecessarily bedealtwithbythecriminaljusticesystem.Supportisprimarilyamatterofesta- blishing appropriate victim support services and offering therapies, and compen- sationofdamagesrelatingtocivilratherthancriminallawandjustice. However, what the approach presented in the following chapters highlights as thecentralfocus,isnotthedamageorharmsufferedbythevictim,butthewrong that constitutes both a severe human rights violation and a criminal offence. This wrong done against the victim, unlike ‘damage’ and ‘harm’, is a thoroughly normative, not an empirical or descriptive, category. What constitutes the wrong sufferedbythevictimistheviolationofherrights. Thewrongdoneagainstthevictimisthusontheonehandanormativecategory, butontheotheritissituatedatthelevelofrealnormativeinteractionandcommuni- cation.Thewrongiswhattheoffencemeanstothevictimandwhatmustnotpass uncontradicted. Wronging, charging, prosecuting, defending, convicting, sentenc- ingandpunishingareallmeaningfulactsembeddedinflowsofreallifecommuni- cation and overall in the normative ‘language game’ of criminal justice (Dearing 2003). Traditionally,thefirstquestionincriminallawtheoryaskswhythestatehasthe righttopunishitscitizens.However,fromahumanrightspointofviewthisisthe wrong question to ask. The state has only an instrumental status as a means of protectingthehumanrightsofitscitizens,wheretheterm‘citizens’roughlyrefers to all the individuals who live on a state’s territory under a legal order, including manywhopaytaxestofundstateinstitutions.Astatedoesnotholdrightsagainstits Preface xi citizens. From a human rights perspective, the question should be whether some individualshavearighttotheconvictionand,inappropriatecases,alsopunishment of others. Unless individuals have such rights, they cannot task the state with effectingthem.Thus,ahumanrights-basedapproachtocriminaljusticeispremised on the existence of rights of individuals, rather than states, to the punishment of offenders. The crucial question relates to the moral and political basis of such rights,andinparticulartothefoundationofarightofthevictimtotheconviction and punishment of the offender. Any reconstruction of criminal justice based on humandignityisnecessarilypremisedonsuchrights. Criminal justice can be conceived and legitimised as an institution protecting humanrightsagainstsevereviolations.Afterall,theentirenormativeorderofthe European Union is founded on human dignity and human rights. Criminal justice shouldnotremainanexemption.Hence,thetaskistoconstructatheoryofcriminal justice thatcomprehensivelyfounds the rightsofvictims,offendersand allothers onthesamecoreprinciplesofhumandignityandhumanrights. A Brief Overview This book is organised in five chapters, where the first chapter formulates two questions—how to define ‘crime’ and how to justify punishment. The two core conceptsneededtoprovidetheanswers,namely‘punishment’and‘humandignity’, are clarified in the second and third chapter while the fourth chapter sets out to answerthesequestions.Thefifthchapterreflectsontheconsequencesofadopting thehumanrights-basedapproachputforwardinthisbook. Thefirstchaptercriticallyassessesthetraditionalparadigmofcriminaljustice and presents promising developments since the 1980s towards a human rights paradigmofcriminaljustice.Inparticular,theimportantdevelopmentsoriginating fromtheECtHRandotherhumanrightsactorsarehighlighted. However,itshowsthattheinitiativesofthesehumanrightsactorsarenotalways based on a fully convincing theory of criminal justice. Whilst the ECtHR often stresses deterrence as the objective of criminal justice, it is questionable whether such an objective of punishment fits a human rights-based approach. Among theorists of criminal law there is a fairly wide-spread consensus that consequen- tialisttheoriesofpunishment—justifyingcriminallawandcriminaljusticebytheir beneficialconsequences—arenotabletodemonstratewhypunishmentisnotonly usefulbutalsojust.Inthehistoryofcriminallawtheorythisstandardcriticismhas repeatedlybeenlevelledagainstallutilitarianapproaches,including,longago,by KantandHegelaswellas—muchlater—byHart(1968)andmanysince. Hence,whatisanissueisthelackofaconvincingtheoryofcriminaljusticethat wouldconclusivelyintegratethevictimandherrightsinacomprehensiveconcept ofcriminaljusticeandpunishment.Whatisneededisanexplanationofwhyhuman dignity and human rights justify and even require convicting and punishing
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