Victimology and Victim Rights International comparative perspectives

This book examines the international, regional and domestic human rights frameworks that establish victim rights as a central force in law and policy in the twenty-first century. Accessing substantial source material that sets out a normative framework of victim rights, this work argues that despite degrees of convergence, victim rights are interpreted on the domestic level, in accordance with the localised interests of victims and individual states. The transition of the victim from peripheral to central stakeholder of justice is demonstrated across various adversarial, inquisitorial and hybrid systems in an international context.

Examining the standing of victims globally, this bookprovides a comparative analysis of the role of the victim in the International Criminal Court, the ad hoc tribunals leading to the development of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, together with the Extraordinary Chambers of the Courts of Cambodia, Special Panels of East Timor (Timor Leste), and the Internationalised Panels in Kosovo. The instruments of the European Parliament and Council of Europe, with the rulings of the European Court of Justice, and the European Court of Human Rights, interpreting the European Convention of Human Rights, are examined. These instruments are further contextualised on the local, domestic level of the inquisitorial systems of Germany and France, and mixed systems of Sweden, Austria and the Netherlands, together with common law systems including, England and Wales, Ireland, Scotland, USA, Australia, Canada, New Zealand, India, South Africa, and the hybrid systems of Japan and Brazil.

This book organises the authoritative instruments while advancing debate over the positioning of the victim in law and policy, as influenced by global trends in criminal justice, and will be of great interest to scholars of international law, criminal law, victimology and socio-legal studies.

Table of Contents

List of Abbreviations *

List of International Instruments *

List of Statutes *

List of Cases *

List of Tables *

Preface *

Part I - Victimology and Victim Rights in Comparative Contexts *

Chapter One: Victim Issues in International Law and Context *

Introduction *

A Multi-Jurisdictional Approach *

Law and Policy/Law or Policy *

Victimology and Victim Rights *

The Rise of Victimology and the Development of Human Rights *

Positivist Victimology and the Present: The Victim’s Voice, Struggles with Local Suffering and the Positivist Agenda *

Normative Stakeholders of Law and Justice *

The Continental European Approach *

Ratification on the Domestic Level: Law, Policy and the Victim *

Reshaping the Roles of Justice Stakeholders *

International, Regional and Domestic Reform: Law and Policy *

Notes *

Chapter Two: International Norms in Victimology and Victim Rights *

Introduction *

International Norms of Victim Rights *

Fair, Courteous and Respectful Treatment *

Information and to be Kept Informed *

Relevant Support Services *

Protection from the Accused and Others *

Participatory, Procedural and Substantive Rights *

Fair Trial Rights *

Access to Compensation, Restitution and Reparations *

Restorative Intervention and Therapeutic Justice *

Domestic Ratification *

Without Prejudice to the Offender *

Normative Victim Rights in Context: Positive State Obligations and Fair Trial Rights in International Law and Policy *

Realising the Centrality of the Victim: Positive Obligations to Protect Victim Rights *

Fair Trial Rights in Context: Equality of Arms in International Law *

Notes *

Chapter Three: Comparative Issues and Perspectives *

Introduction *

Inculcating International Standards in Law and Policy *

Ratification of International Declarations and Instruments *

Policy Transfer of International Standards *

Dismantling Adversarial/Inquisitorial Boundaries *

Hybrid Systems: Criminal Law, Criminal Justice and Mixed Systems of Administration *

Law Reform Processes *

Commissions of Inquiry *

Emerging International Reforms in Law and Policy *

Trial Participation and the Right to be Consulted *

Counsel for Victims of Crime *

Substantive and Enforceable Rights for Victims of Crime *

Restorative Justice *

Therapeutic Justice *

A Focus on Reparations *

Compensation and Restitution *

Notes *

Part II - The Victim in Internationalised Systems of Criminal Justice *

Chapter Four: Victims in International Law and Policy *

Introduction *

Supra-National Bodies *

United Nations Declarations *

Treaty Monitoring Bodies *

International Courts and Tribunals *

Ad hoc Tribunals: The Nuremberg and Tokyo Tribunals, the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda *

The International Criminal Court *

Domestic Courts Under International Law *

Extraordinary Chambers of the Courts of Cambodia *

Special Panels of East Timor (Timor Leste) *

Internationalised Panels in Kosovo *

Notes *

Chapter Five: Victims in Regional Law and Policy *

Introduction *

Council of Europe, the European Commission and the European Union *

The European Court of Justice *

The European Court of Human Rights *

The European Union and Victim Rights in Focus *

Notes *

Chapter Six: Victims in Domestic Law and Policy *

Introduction *

Inquisitorial Systems *

Germany *

France *

Mixed Inquisitorial/Adversarial Systems *

Sweden *

The Netherlands *

Austria *

Adversarial Systems *

England and Wales *

Scotland *

Ireland *

United Sates of America *

Australia *

Canada *

New Zealand *

India *

South Africa *

Mixed and Hybrid Systems *

Japan *

Brazil *

Notes *

Part III – Victims in Law and Policy: Discord and Debate *

Chapter Seven: Victim Rights in Law and Policy *

Introduction *

International and Regional Instruments and the Domestic Reform Process *

Hard Law/Soft Law in Domestic Contexts *

The Limits of Public Policy *

Victim Rights and the Reluctance of Normative Stakeholders *

Notes *

Chapter Eight: Victim Rights in the Twenty-First Century: Intervention and Innovation *

Introduction *

The Promise of Victimology Realised? *

References *

Dr Tyrone Kirchengast is a Senior Lecturer in the Faculty of Law at the University of New South Wales, Australia. He is admitted as a legal practitioner of the Supreme Court of NSW and is a barrister and solicitor of the High Court of Australia. Before joining the Faculty of Law, he lectured at the University of Newcastle, and Macquarie University, Australia. His principal teaching and research interests are in criminal law and procedure and his publications focus on the integration of victim interests within criminal law. His recent work focuses on the role of victim impact statements in sentencing homicide offenders; the rise of victim lawyers and the integration of victims into adversarial proceedings; and victim rights as human rights under the European Convention on Human Rights and before the International Criminal Court. He has published widely on victim rights.