The participation of victims in the trial process
Keywords:victims of crime, victim participation, adversarial trial, EU criminal law, special measures for witnesses, right to be heard
Directive 2012/29/EU, establishing minimum standards on the rights, support and protection of victims of crime, forms part of a package of measures designed to ensure that victims have the same basic level of rights throughout the EU regardless of their nationality or the location of the crime. One of the Directive’s innovations is a suite of measures designed to facilitate the participation of victims in the criminal process. The provisions include a right on the part of victims to be heard and a right to have their dignity protected when giving evidence.
Although there has been a gradual strengthening of victims’ rights at national and international level, the concept of participation remains poorly defined and practice varies widely across the EU. The issue is particularly controversial in common law systems where victims are not assigned any formal role in the trial process. The traditional adversarial trial, designed to accommodate the prosecution and the defence, poses a structural obstacle to reform. However, recognising the limits of EU competence to legislate in the area of criminal justice, the member states have been afforded a wide margin of appreciation when implementing the Directive’s provisions on participation.