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Rights of Crime Victims to Have Access to Justice – a Comparative Analysis

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Rights of Crime Victims to Have Access to Justice – a Comparative Analysis Report of Various Size – Fieldwork research (FRANET) Rights of crime victims to have access to justice – a comparative analysis Country Report Austria 2017 European Training and Research Centre for Human Rights and Democracy (ETC GRAZ) Author: Isabella Meier Review: Klaus Starl Language editing: Wanda Tiefenbacher, Barbara Schmiedl DISCLAIMER: This document was commissioned under contract as background material for a comparative analysis by the European Union Agency for Fundamental Rights (FRA) for the report ‘Rights of crime victims to have access to justice’. The information and views contained in the document do not necessarily reflect the views or the official position of FRA. The document is made publicly available for transparency and information purposes only and does not constitute legal advice or legal opinion. Executive summary Based on face-to-face interviews with 21 practitioners of different professional groups and 12 victims of violence, this report outlines the main findings for Austria. The findings show the following interconnected issues which affect the victims’ active participation in the criminal proceedings and the effective implementation of their rights. Different perceptions on victims’ role The findings indicate two types of views concerning the role of the victim in criminal proceedings. The interviewed judges, prosecutors and police officers tend to conceive the victim mainly as a witness. Victims of violent crimes are considered as most important part of evidence by the law enforcement authorities. They point out that victims of violent crimes are OBLIGED rather than ENTITLED to have a say in the proceedings. Victims are thus perceived by law enforcement authorities as witnesses, whose statements help finding the truth and prosecuting crimes. They are not so much conceived as injured persons who need restitution or as active parties, who are entitled to have a say in the proceedings. Interviewed judges and prosecutors rather stated that victims should not have too strong an influence on the proceedings. In their opinion victims should not apply for evidence in the proceeding, ask questions or have a say during the trial as this would be too influencing. Interviews with victims confirm this view: victims feel treated as witnesses only and not as victims. While law enforcement staff does not differentiate between a victim and a witness, victims do. For the police and court-staff this doesn’t make so much of a difference, as they pay attention only to the victims’ possibility to testify. For them, victim support services also have mainly the function to facilitate testifying. Interviewed members of victim support services and lawyers acknowledge the traumatisation of victims. Particularly psychosocial victim support services sometimes focus on the traumatisation and therefore encourage victims to not participate too much in the proceedings – at least not more than absolutely needed. Legal victim support services take on a different approach in supporting victims of violent crime. Although they also aim at protecting the victim from being secondarily victimised, they ADDITIONALLY take on a strategic approach to proceeding – they want the case to be won and the offender to be prosecuted. Against this background, some legal support services might invite the victim to actively participate and testify in the court room (while the offender has to leave). Victims’ active participation in the proceedings The findings show that victims’ active participation in the proceedings does not work as it is supposed to. Law enforcement personnel (judges, police and prosecutors) reject victims’ active participation in the proceedings, because this would affect the offenders’ rights negatively and also the reputation of the criminal justice system. For example, police officers say that a victim does not need any legal advice prior to reporting to the police. The victim (as well as a witness in the sense of a “bystander”) is rather obliged to report to the police – criminal offences have to be reported to the police and there is no need for legal advice. Similarly, prosecutors and judges feel annoyed about too much active participation of victims, e.g. in the sense of asking questions or having a say during court trial. They argue that they indeed are sensitive towards victims’ needs, but in the end it is the state – and not the victim – who has the right and the duty to prosecute criminal offences. However, the legal and psychosocial supporters of victims interviewed do not want either a too active participation of the victims in the proceedings, or are at least sceptical about it. Yet, they argue differently by referring to the need to avoid secondary victimisation. A victim participating in the proceedings too actively might be, in the opinion of psychosocial support services, at risk of being secondarily victimised. Legal support services see this point too and additionally fear that a very active victim might appear not “sufficiently” victimised to the judge. However, the victim support services focus on compensating the lacking active participation of victims: they participate on behalf of the victims and inform them about every procedural step. Of course, they are aware of and respectful towards victims’ needs, and if a victim insists on actively participating, they will support them in doing so. The victims wish to actively participate in criminal proceedings can be reduced to two dimensions: 1) to be pro- actively informed and updated by the actors of the criminal justice system and 2) to have all their evidence considered (or at least explained why it is not considered). 2 Victims’ rights are entitlements upon request Victims’ participation rights are mainly rights upon request. A victim of violent crime is entitled to psychosocial support services UPON REQUEST; victims are entitled to ASK FOR securing and considering evidence they perceive as relevant – the decision lies with the court; victims are entitled to ASK for a contradictory interrogation, the decision lies with the court and so forth. The fact that these victims’ rights are entitlements upon request (and there is no effective remedy in case of denial) might explain failure in practical implementation– at least for victims without support services. In practice, victim support services care for the implementation of victims’ rights (i.e. care to avoid unwanted encounters between victim and offender). The criminal justice system has no interest in providing these measures routinely, and does not provide them unless specifically requested to. Again – the fact that victims’ rights are rights upon request and without underpinning legal enforcement mechanism might explain the difference between victims’ rights in the law books and victims’ rights in reality. Protection from repeat victimisation Protection measures (such as banishing orders or prohibitions to return) against repeat victimisation in cases of domestic violence are considered effective, as equally pointed out by practitioners and victims. However, victims stated that financial punishment in the case of violation often does not deter repeat offences. Victims would prefer to have threats of jail as more effective deterrents. Protection does not work at all in the case of non-domestic violence, and neither practitioners nor victims have suggestions on how this could be improved. Incomplete decisions on restitution and compensation at criminal courts Victims are effectively informed by the police about the possibility to join the proceeding as a private party and to seek restitution. However, the main problem reported by practitioners (and confirmed by victims) is that the criminal court does not adjudicate all civil law claims. , Victims have to file a claim at the civil court when the evidence gathered in the criminal proceedings is not sufficient. For this purpose, legal support services are not free of charge. 3 Introduction This report is based on face-to-face interviews with 21 practitioners of different professional groups and 12 victims of violence.1 The interviews were conducted between 17 January and 12 July 2017 in Vienna, Graz and its surrounding areas and Linz. Initially, only the two regions of Graz (rural) and Vienna (urban) should have been included into the sample, but since there were some difficulties in achieving the requested number of interviewed victims of violence (which will be addressed below) the geographical scope was extended to Linz. The interviews lasted between half an hour (prosecutor) and more than two hours (victim of sexual violence). All interviews were audio-taped. Given that this report is based on small-scale qualitative research, which is reflected in the small number of interviews for certain categories of respondents, the reader should bear in mind that the findings reported here are only representative of those persons who were interviewed. The sample The sample of 21 practitioners covers the following professional groups: Four interviews with members of victim support services (VSSs), including both specialised and generic ones; five interviews with police officers; eight interviews with judges (J1-J4) and prosecutors (J5-J8); and four interviews with lawyers specialised on representing victims of violence at court. The interviewees who are not members of public authorities, namely the VSS as well as the lawyers, were identified via online research. To identify possible interviewees for the fieldwork research among public authorities – judges, prosecutors
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