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S42106854 Phd Submission The Role of the Victim in Criminal Proceedings in Australia and Germany - a Comparison- Kerstin Braun LL.M (UQ) A thesis submitted for the degree of Doctor of Philosophy at The University of Queensland in 2014 TC Beirne School of Law Abstract Victims of crime once played a significant role in the administration of criminal justice by actively participating as private prosecutors. However, over the centuries the victim was gradually marginalised from criminal trials in both common law and civil law jurisdictions and the victim’s role became mainly that of a witness. In the 1970s and 1980s, scholars and policy makers started challenging the diminished role of victims in criminal justice proceedings. This contributed to the adoption of the 1985 General Assembly UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (the ‘Declaration’) setting out basic principles for the treatment of victims. An international declaration requires translation into Member States’ national law to afford state nationals the rights contained in the instrument. However, over the course of the past decades some scholars and non-governmental organisations have suggested that Member States may not have implemented the basic principles contained in the Declaration sufficiently. The extent of the Declaration’s implementation in Member States’ national law is under-researched and not sufficiently understood. This thesis makes a new and original contribution to the existing literature by exploring the implementation of section 6(b) of the Declaration — the victim’s right to present views and concerns — in two UN Member States, Germany and Australia. This thesis analyses the implementation of formal processes and procedures concerning victim participation at the trial and sentencing stage in an inquisitorial system — Germany — and an adversarial system — Australia. It subsequently investigates the expansion of participation procedures at the trial and sentencing stage in the two Member States. The thesis also examines the possibilities for Member States to reject the extension of participatory rights based on the qualifications contained in the Declaration itself. According to section 6(b) Member States can choose not to implement victim participation rights where participation of victims would be ‘prejudicial’ to the accused and/or not ‘consistent’ with the respective national criminal justice system. The analysis conducted in this thesis highlights that the possibilities for victim participation in light of section 6(b), almost 30 years after its adoption, could be extended and enhanced — in both Germany and Australia. Moreover, the expansion of participation rights for victims would not necessarily be prejudicial for defendants’ rights in every case. However, it is arguable that an expansion of participatory rights is ‘inconsistent’ with the national criminal justice systems in II Germany and Australia. Both Member States may be able to rely on the argument that ‘modern’ criminal justice is a state-based conflict from which victims have intentionally been excluded. The qualifications contained in the Declaration may therefore enable Member States to continue to justifiably refuse the expansion of victims’ participatory rights at the trial and sentencing stage beyond current limits. As this is a major limitation of section 6(b), the thesis examines the potential success of proposed alternative international standards for victims inter alia aimed at influencing victim participation procedures in Member States. The analysis focuses on the possible adoption of a proposed legally binding UN Convention on Justice and Support for Victims of Crime and Abuse of Power (the ‘Convention’). However, in regards to victim participation, the proposed Convention contains the same qualifications as currently enshrined in section 6(b) of the Declaration. This means that signatory States might be able to rely on the same qualifications and justifiably reject the expansion of victims’ participatory rights after the ratification of the Convention. This thesis concludes that it may be necessary to explore alternatives on the international level apart from the adoption of a Convention to promote the expansion of victims’ participatory rights. It suggests that the viability of the adoption of a Human Rights Council ‘Special Procedures-Mandate’ for the implementation of the Declaration could be explored in future research. Special Procedures might engage actors in Member States in dialogue on victims’ rights to a greater extent and emphasise the importance of victim participation at the trial and sentencing stage. The thesis argues that a change of attitude regarding the victim’s role in criminal justice in Member States might contribute to the introduction of procedures that allow for greater victim participation at the trial and sentencing stage in Germany and Australia. III Declaration by author This thesis is composed of my original work, and contains no material previously published or written by another person except where due reference has been made in the text. I have clearly stated the contribution by others to jointly-authored works that I have included in my thesis. I have clearly stated the contribution of others to my thesis as a whole, including statistical assistance, survey design, data analysis, significant technical procedures, professional editorial advice, and any other original research work used or reported in my thesis. The content of my thesis is the result of work I have carried out since the commencement of my research higher degree candidature and does not include a substantial part of work that has been submitted to qualify for the award of any other degree or diploma in any university or other tertiary institution. I have clearly stated which parts of my thesis, if any, have been submitted to qualify for another award. I acknowledge that an electronic copy of my thesis must be lodged with the University Library and, subject to the General Award Rules of The University of Queensland, immediately made available for research and study in accordance with the Copyright Act 1968. I acknowledge that copyright of all material contained in my thesis resides with the copyright holder(s) of that material. Where appropriate I have obtained copyright permission from the copyright holder to reproduce material in this thesis. IV Publications during candidature Refereed journal articles: 1. Kerstin Braun, ‘Giving Victims a Voice: On the Problems of Introducing Victim Impact Statements in German Criminal Procedure’ (2013) 14(9) German Law Journal 1889-1908 2. Kerstin Braun, ‘Do Ask, Do Tell: Where Is The Protection Against Sexual Orientation Discrimination In International Human Rights Law?’ American University International Law Review (accepted for publication on 15 July 2013) 3. Kerstin Braun, ‘Legal Representation for Sexual Assault Victims- Possibilities for Law Reform?’ (2014) 25(3) Current Issues in Criminal Justice 819-837 4. Kerstin Braun, ‘“Nothing About Us Without Us” - The Legal Disenfranchisement Of Voters With Disabilities In Germany And The Compliance With International Human Rights Standards On Disabilities’ American University International Law Review (accepted for publication in March 2014) Publications included in this thesis No publications included. V Contributions by others to the thesis No contributions by others Statement of parts of the thesis submitted to qualify for the award of another degree None. VI Acknowledgements The research in this thesis could never have been undertaken without the help of many persons. I would like to thank my supervisors Prof. Dr. Heather Douglas and Dr. Mark Burdon for their continuous support in my PhD research, their guidance and advice. I am grateful for their knowledge and for making sure that I finished the thesis. Further I thank Radha Ivory, Andreas Schoenhardt, Jonathan Crowe, Warren Swain, as well as my fellow PhD students at the TC Beirne School of Law, for their encouragement and support during this time. I am especially grateful to Ruth Walker for picking me up when I was feeling down. Lastly, this thesis would have remained unfinished if it had not been for the love and support of my husband Seamus Tovey, my friends and my family. Without the great work of my father Karl-Heinz Braun for, and with, victims of crime this thesis would never have been written. I dedicate this thesis to my father. This thesis was financed through the UQ Centennial Scholarship and the International Postgraduate Research Scholarship. “I have hated words and I have loved them, and I hope I have made them right” Markus Zusak, The Book Thief VII Keywords Victims of crime, UN Declaration for victims, Germany, Australia, Convention for victims Australian and New Zealand Standard Research Classifications (ANZSRC) ANZSRC code: 180110 Criminal Law and Procedure (50%) ANZSRC code: 180106 Comparative Law (25%) ANZSRC code: 180116 International Law (excl. International Trade Law) (25%) Fields of Research (FoR) Classification FoR code: 1801, Law (100%) VIII TABLE OF CONTENTS CHAPTER 1: INTRODUCTION ................................................................................................................... 1 I INTRODUCTION .......................................................................................................................................... 1 II PURPOSE AND AIM OF RESEARCH ..................................................................................................... 5
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