Rights of victims under criminal justice system

Introduction

In the initial years the stance of victims with regard to their rights was corrective in nature. The concerned authorities were fully centered towards the accused. Practices were made to carry out a fair trial. The accused were fully ignored and overlooked by the court of law. Victims have few legal rights under the criminal justice system to be informed, heard and present during the proceedings. They had no right to know about the arrest of the accused or to attend the trial or proceedings. There was no assistance provided to the victim. It was seen that victims tend to lose the interest and confidence in the process of adjudication.  Human rights of the accused were well protected which made victim to get detached from the adjudicating process. It was felt that the rights of accused were shielded either by legislation or by adjudication. He was the pivot of whole process.  There was a need to establish and signal that victim is not a passive but an active component of the proceedings.  In order to built conviction and trust among the victims several amendments came into existence. To manifest and assure, law too holds the interest and rights of victims some of the existing laws had been altered. For the first time in 1985, the United Nations General Assembly a declaration was made relating to basic principles of victims of crime. Similar kind of protection and attention as that of accused is needed for the victim. They too form the part of society and are no less than the accused.

Basic rights of victims include:

  • Right to attend criminal proceedings
  • Right to be informed of the criminal justice process and about the events
  • Right to be informed about the rights and remedies and services available
  • Right to be heard and participate in the proceedings
  • Right to protection from intimidation and harassment
  • Right to compensation
  • Right to restitution
  • Right to assistance
  • Right to speedy trial, and above all
  • Right to enforce all these rights

Right to attend

This is an important right for victim, victim and his family to be present during the proceedings play a vital role. They tend to hear the counsels arguments, witness, evidences provided and the reaction of the judges. Delivering of judgment in their presence instills in them a confidence and faith towards justice and adjudicating process. Crime victims may have benefit by allowing having a support person present throughout the proceeding. Presence of a trusted and nearby person, any family member or lawyer, reliefs them to better exercise their rights. Many states have allowed having a support person during the proceedings.

Right to compensation

“Crime victim compensation should be a government program designed to reimburse victims of violent crime for their out-of-pocket expenses relating to the crime”. To receive compensation the victim or family members should be qualified. Generally it is demanded by the state where they reside or the crime occurred. Eligibility criteria includes direct victims or to their surviving members, victims of serious financial crimes demand for counseling processes and those who bear the expense of victims funeral and last riots program are directly eligible to demand under the compensation program.

Compensation programs are “payers of last resort”. Compensation does not include all sorts of expenses, described and defined expenses by the state are covered under the compensation program. These include medical expenses, counseling expenses, lost wages, and funeral expenses. In case of sexual assault forensic exam, crime scene clean up or counseling of family member and other related expenses. Exception appears as they do not pay for property loss or pain and suffering caused. Compensation is provided which is not covered by any insurance or any other assistance. Each state has its fixed amount to be paid for particular categories and not more than could be granted.

Right to be heard

It is the most notable right of crime victim during critical criminal justice proceedings affecting their interest. By exercising this right victim plays a proactive role in the proceedings. When a victim is allowed to make sentence hearing or to submit a victim impact statement marking the effect of offence on victim and on family gives a new look to the criminal justice system regarding the harm and suffering caused due to crime.

Prosecutor to obtain the view of victim before the final disposal is very important. It should be notified that what contains an agreement, dismal of charges or a pretrial diversion of defendant. It should be marked by the prosecutor to court that the final plea is being informed to the victim and is with his concern.

Right to be informed

Very often it is seen that the common people are not well aware of the criminal proceedings and methods followed. The criminal justice system requires well informing the victims about their general rights. Victim and his family should be well notified about the criminal proceedings, schedules and the outcome of those proceedings. They should be informed when hearings can be cancelled or rescheduled. They must be made aware of the various legal rights such as right to attend the proceedings, to submit a victim impact statement, or to sue the offender for damages in civil justice system, to have a court order to protect the victim and their family from offender and its family. A criminal proceeding includes chain of events, not familiar to everyone. This needs to be informed to the victim and his family. These events include[1]:

  • Arrest of the accused;
  • Arraignment of the defendant;
  • Bail release and related proceedings;
  • Pretrial release and related proceedings;
  • Dismissal of charges;
  • Negotiated pleas and entry of plea bargain;
  • Trial dates and times;
  • Sentencing hearings;
  • Final sentence or disposition;
  • Conditions of probation or parole;
  • Post-trial relief proceedings;
  • Appeals process and related proceedings;
  • Parole release and related proceedings;
  • Pardon/commutation of sentence and related proceedings;
  • Cancelled and rescheduled proceedings;
  • Final release from confinement, including from a mental institution; and
  • Escape and subsequent recapture of offender

Right to protection

Protection his family of victim and is one of the most important significant part of the whole proceedings. Often it is seen that the accused or his family tries to harm, harass or threaten the victim and his family members for their interest. Victim is forced to cancel or alter their statements and plea marked. In order to protect victim and related persons several proactive measures include[2]:

  • Police escorts to and from court;
  • Secure waiting areas separate from those of the accused and his/her family, witnesses and friends during court proceedings;
  • Witness protection programs;
  • Residence relocation; and

Denial of bail or imposition of specific conditions of bail release—such as no contact orders—for defendants found to present a danger to the community or to protect the safety of victims and/or witnesses.

Right to privacy

Victims may have the right to be private relating their personal information such as name or identity phone number, address or place of residence or the place of employment. Revealing these facts can be at stake to security of victim and immediate family members. It can endanger their security if made public. Certain special victims such as child victims of sexual assault, domestic violence, elderly, stalking or human trafficking should have special privacy concerns.

Right to restitution

The term “restitution” refers to return of harm or loss caused by the defendant. He must pay in the form of damages. It may include return or repair of property damaged or altered by the defendant during crime. The losses covered may include:

  • Medical expenses
  • Therapy cost
  • Prescription charges counseling cost
  • Lost wages
  • Expenses related to participating in the criminal justice process (such as travel costs and child care expenses)
  • Lost or damaged property
  • Insurance deductibles and
  • Other expenses that resulted directly from the crime

Restitution does not cover the harm, sufferings or pain beard due to the crime. The emotional distress and mental trauma caused could not be compensated. Restitution is for the upcoming future expenses such as medical and forensics

Right to a speedy trial

“Right to speedy trail” or “disposition of case within a reasonable time” plays a crucial role in building of faith not only to the victim but also to society. It is highly expected from both legislature and judiciary to deliver the justice and punish the culprit. Cases including heinous and grievous crimes should be treated prior and with speed.

Provisions in Indian Constitution

(i) The Code of Criminal procedure (Amendment) Act, 2008 and Criminal law amendment act 2013 made a radical and poignant change in the criminal justice system by introducing and redefining the rights of victims:

(ii) Section 24(8) of CrPC inserted a provision providing victim to choose an advocate of his choice for proceedings[3].

(iii) Section 26(A) of CrPC mentions that offence under Section 376[4] and 376(A)[5] to 376(D)[6] of IPC ‘as far as practicable by a court shall be presided over by a woman’[7].

(iv) (Section 157 of CrPC mentions that ‘ the statement of a rape victim will be recorded at the place of the victim or a place chosen by her, by a women officer in presence of parent or guardian , or a near relative or a social worker of that area’[8].

(v) Section 173(1-A) of CrPC, the amendment specifies ‘the time of three months for investigation in case of rape of a child’[9].

(iv) Section 357A plays an important role as it prepares ‘state government to coordinate with central government with regard to a scheme called “Victim Compensation Scheme”’[10]. To provide compensation for the losses occurred due to the crime.

Conclusion

The struggles by victims to gain justice are tremendous. Not an easy task to come out and raise voice against the wrong. In the path of thriving towards equity and fairness granting them the legal rights would be a great help. Rights provided by law and states play a central role not only boost them up but also a belief and reliance towards the adjudication process. Earlier the focus of whole adjudicating process was the accused and his rights; he was free to choose an advocate as per his convenience and affordability, playing a crucial role in the procedure. His rights were more focused in comparison to that of the victim. Many times it was seen that due to the lack of knowledge and proper assistance the victim and his related members tend to lose faith and interest in the proceedings. Due to the lack of proper support, protection and information they were threatened and harassed. Not attending of court hearings or making of victim impact statements reliefs the accused and many times their crimes were not accused. In order to provide rights to victims under criminal justice system several amendments are made. Providing right to attend, right to be heard, right to be protected, right to be informed, right to privacy, right to restitution, right to a speedy trail and many more. These rights provide assistance to victim and his family members and assure fair play towards the delivering of justice. By installation of these provisions attainment of justice would be easier and stronger. It will not only safeguard the victim but also society from such culprits. It institutes the position and unbiasness of adjudicating process.


[1] Victimlaw.org

[2] Legalservicesindia.com

[3] Code of criminal procedure S24(8)

[4]Indian Penal Code S376

[5] Indian Penal Code S376(A)

[6] Indian Penal Code S376(D)

[7] Code of criminal procedure S26(A)

[8] Code of criminal procedure S157

[9]  Code of criminal procedure S173 (1-A)

[10] Code of criminal procedureS357

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