A Comparative Approach to Victim’s Role and Status in the Criminal Process

 

A Comparative Approach to Victim’s Role and Status in the Criminal Process

Amirhamzeh Zeinali

PhD in Criminology and Criminal Law; Member, Social Welfare Management Research Center, Welfare and Empowerment University, Iran. [email protected]

Abstract

The increased role and status of the victim (the aggrieved) in the criminal process is considered as a result of the emergence and expansion of Supportive Victimology. Studying different aspects of the victim’s presence in the criminal process in different judicial systems reveals that victim support ideas have affected different criminal systems in different ways. As compared with Common Law, the Romano-Germanic criminal system used in Germany and France allows the victim to play a more pronounced role in litigation and prosecution procedures. However, in the Common Law system, the victim’s part in the sentencing stage is more significant than that in Romano-Germanic systems. In the Iranian criminal system (under the section related to crimes punishable via Tazir[4]), as in those in Germany and France, the victim’s role in the initial and prosecution stages is prominent, but somewhat diminishes in the sentencing stage. This is a comparative study aimed at examining the role and position of the victim in the initial, prosecution, and sentencing stages in the criminal process.

Keywords: Victim, criminal complaint, prosecution (of criminal cases), sentencing (stage), criminal procedure/process

Introduction

A review of the Criminal Law history shows that, as compared with the criminal, far less attention has been focused on the victim. It is easier to speak of the criminal than the victim in spite of the fact that anyone can fall victim to crime (Lopez and Gina, 2000: 52).

With the advent of Auxiliary Victimology (also referred to as Supportive Victimology), the approach towards the victim in Criminal Law and, especially in Criminal Procedure, changed (Zeinali and Moqaddasi, 2012: 57). For example, in the past, most crimes were not subject to remission, whereas today, due to the effective ideas set forth by Supportive Victimology, the claimant plays a greater role in criminal prosecution, so much so that, irrespective of public interest, many countries evaluate the general aspect of crime with due regard to the private aspect thereof, i.e., the damage incurred on the victim and the victim’s attitude towards the  acquittal/prosecution of the criminal (Ashuri, 1999: 10). In this regard, some victimologists speak of some kind of victim support model within the framework of the four stages of the criminal policy entitled “Procedure-Based Formal Support”. These include setting forth mechanisms towards administration of justice for the victim within the legal framework, particularly the criminal procedure (Raijian Asli, 2011: 126).

In the meantime, the victim’s role during litigation and prosecution, and particularly in the sentencing stage, is an important subject addressed by criminologists and jurists. In countries such as Germany and France where the Romano-Germanic system is adopted, the victim plays a significant role in the criminal process, whereas in countries with criminal systems closer to Common Law including England, litigation and prosecution of criminal cases are usually undertaken by the government. Although in recent years efforts have been under way for changing this approach, the insignificant role of the victim in this regard still persists.

A review of the Iranian criminal system (under the section related to crimes punishable via Tazir[5]) shows that this system is more similar to the Romano-Germanic system, i.e., the victim’s role in the initial and prosecution stages is prominent, but somewhat diminishes in the sentencing stage. This is a comparative study aimed at examining, through a descriptive-analytic approach, the role and position of the victim in the initial, prosecution, and sentencing stages in the criminal process.

1.   Victim’s Status in the Criminal Process: from Active Participation to Passive Role

Since the 1980’s, the method and extent of the victim’s participation has been among the most important topics in the criminal process (Edward, 2006: 967). Criminal systems follow two approaches in terms of the victim’s participation. Some systems have adopted an active dynamic participation and others a passive participation termed as the “static approach” (Niazpour, 2012: No. 57: 351). The victim’s right to sue and raising the victim’s awareness are examples of active and passive participation respectively.

Whereas there is little controversy on passive participation, there are many serious pros and cons on active participation. For example, opponents believe that if the victim is allowed to express its own claims or address the court, then the accused might e exposed to more severe punishment. Victim Participation can complicate legal hearings since addition of a new party would require greater logistical organization as well as time for the hearing. In addition, victim participation, particularly in the form of describing the effects of the crime on the victim, would lead to prolonged investigation and hearings. Victims would like their views to be heard throughout the criminal process rather than merely at the sentencing stage. Based on the results of some studies, the victim’s participation would require an additional pressure on the victim beyond that of acting as a witness. Specifically, placing the victim in a decision-making position might even lead to further persecution, threatening, or distress for the accused (UN Office of Drug Control and Crime Prevention Report, 2005: 78-80). In addition, active participation on the part of the victim is in contrast with the targets of the “due process model” as well as the “crime control model” (McLaughlin & Muncie, 2006: 81-83 & 144-145). The former model acts towards protecting the rights and interests of the accused and the latter towards protecting interests of the society as a whole (Ghapanchi & Daneshnari, 2012: No. 4: 167-184; Sanders, 2002: 203). According to these models, the victim’s rights are divided into two groups: service rights and procedural rights. The former includes such rights as the right to be informed of the hearing process, the right to protect the victim outside the court, the right to protect the witnesses during the hearing, and the special rights granted to vulnerable victims. These rights are in compliance with the two mentioned models and the execution thereof does not conflict with these models. The latter, however, includes such privileges as decision making rights during criminal litigation and prosecution (these rights are considered as active participation on the part of the victim). These rights are against both the above models since, if the victim’s consent to further prosecution cannot be obtained, then the crime control model is infringed, and, conversely, if the victim were willing to prosecute in spite of weak evidence, then the due process model is not complied with (Ashworth, 1998: 33-37).

Nevertheless, the proponents of the victim’s active participation in the criminal process refuse to acknowledge these cited faults, arguing that although certain victims might demonstrate a punitive attitude, this is not generally the case. In addition, even if the victim does participate actively, the final decision shall be taken by agents of the criminal justice system, who are obligated to observe equality and justice. Another point is that although, in certain cases, some victims might be harassed or threatened, this possibility also exists in other systems where the victim merely acts as a witness without playing an active role in the investigation (UN Office of Drug Control and Crime Prevention, 2005: 80).

Contradictory views on the extent of the victim’s participation in the criminal process have caused different judicial systems to adopt different approaches in this regard. For example, in the English criminal system, the victim is granted limited powers during the litigation and prosecution stages. Conversely, the Iranian, German, and French criminal systems support a more active role for the victim during litigation and prosecution processes.

1.1.       Victim’s Passive Role during Criminal Litigation in England

In the English criminal system before the establishment of a police organization, prosecution in many cases used to be considered as the victim’s and not the public authorities’ duty except under exceptional circumstances. As a result, the victim could exert control on the case and was aware of the circumstances of the case (Hay & Snyder, 1989). However, establishment of the police organization limited the victim’s role in the prosecution. This limitation was further increased when the “crown prosecution service” was established in the 1980s since this organization was made responsible for prosecution of all legal cases. Victims can start the hearing process through announcement of the crime to the police. In most cases, the crimes reported to the police are those witnesses by the victim(s) or other members of the society. Crimes may be reported in person, via calling the local police or using the national warning call system, and even through email.

According to the evaluation conducted in 1998, forty four percent of crimes are either directly reported or otherwise found out by the authorities. Only 19 percent of sexual crimes are reported, which is less frequent compared with other crimes. Compared with previous decades, the number of reported rapes and sexual battery cases has doubled, whereas the ratio of reported rapes leading to sentencing has increased by more than 50%. The reasons for the victim’s refusing to prosecute the offender include the following: 1) the victim feels the crime does not signify sufficiently for being reported; 2) the victim believes the police are unable to do anything to bring the offender to justice; 3) the victim is unwilling to prosecute the criminal; 4) the victim is afraid of retribution by the offender.

Numerous measures have been taken to encourage people to report crimes. For example, Crime Prevention Project makes it possible for individuals to report crimes to the police (without divulging their identity) through informing Crime Prevention Center by phone, or sending their reports via email. Children may report crimes through children’s line. This center is a charity institution with 950 volunteering consultants who answer about 33,000 calls every day. Different organizations have also established domestic violence and sexual harassment units.  Violent sex offenders are not allowed to personally interrogate the victims, and certain limitations are imposed on interrogation and questioning about victims’ sexual harassment record. Such measures have proved effective in reducing victims’ fear of attending the hearing process and court sessions, thus causing an increase in the reported cases. In the English legal system, there are few private crimes, making simple assault and battery the only crime prosecutable by the victim or on the victim’s behalf (Zeinali and Samavati, 1999: 321). In this system, sometimes the prosecutor’s interests are at odds with the victim’s. An example is “plea bargaining” which by saving time and lowering expenses serves the prosecutor’s interests, but acts against the victim due to its associated mitigation in the offender’s punishment (Fenwick, 1997: 23).

In the English legal system, the victim in time turned into the forgotten element of te criminal process, an insignificant entity in the eyes of the police and the prosecutor, required for nothing but providing due information and evidence (Sanders, 2003: 199-200). The belief that crime is a confrontation between the accused and society was strengthened (Rook, 2001: 1). In such a situation, the victim merely played the role of a witness (Dock, 2008: 138). In England’s accusatory system, the victim was considered an instrument who could be used as a witness against the other party, namely, the accused (Wolhunter, Olley & Denham, 2009: 177; Pizzi, 1999: 197). Under such circumstances, the purpose of sentencing is to impose punishment on the offender rather than recompensing the victim (Sanders, 2003: 201).

In recent decades, due to the spread of supportive victimological ideas, the need for changing the criminal justice approach towards victims has been emphasized. Nevertheless, victims must be supported and protected and allowed to voice their concerns (Garland, 2000: 347). In addition, the victim must be granted certain rights and privileges in the same way the offender is. The support bestowed on the offender must also be provided for the victim. If special agents are appointed for the offender, similar provisions must also be provided for the victim. A “victim justice system” must be created and upheld alongside the existing “criminal justice system”. Victims must be allocated a special budget for protecting their rights, just as the offenders are (Rock, 1998: 108).

As a result of such influences, certain measures have been taken in recent years to modify the criminal justice system in England. For example, in 1966, Michael Howard, the British Home Secretary at the time,  emphasized the necessity of reviewing the criminal justice system to serve the interests of the victim. In the “justice for all” bill, it was also emphasized that the proposed plan contained a significant priority, namely, restructuring the criminal justice system towards providing support for the victim and society (Edwards, 2006: 969). Moreover, the victim’s interests were included in the determinant factors used to decide whether criminal prosecution must be continued or stopped (Doak, 2005: 303). This was an important development in England’s criminal procedure system since, prior to its adoption, crime used to be regarded an act of aggression against the rights of the state prosecutable whenever it served the interests of the public and society. Otherwise, the prosecution had to be halted and the victim’s interests sought among those of the public (Rook, 2001: 37). In addition, according to Article 2 of the “prosecution of offense act”, private parties are entitled to press charges (initiate prosecution). Nevertheless, in the absence of sufficient evidence, the Director of Public Prosecutions can stop the prosecution or express opposition towards its continuation. In cases where prosecution is against public interests, the Director of Public Prosecutions shall be entitled to halt the same (Rock, 1998: 38).

These cases are indicative of introduction of relative changes in England’s criminal justice system towards creating a more pronounced role for the victim in the criminal prosecution stage. Various factors have influenced these changes, the most important of which being: 1) the fact that if people, particularly the victims, were not satisfied with the performance of the criminal justice system, then their participation and, consequently, the efficiency of the criminal justice system would decline; 2) certain ideas for protecting the victim were adopted from the United States; and 3) the activities of the United Nations and the European Union to promote the victim’s role in the criminal justice process were considered.

1.2.       Victim’s Active Participation in Initiating Prosecution in Germany and France

The results obtained from some studies show that in the systems more inclined towards the Romano-Germanic system than the Common Law, the victim is more satisfied with the criminal justice system. The reason cited is that, in these systems, the victim is more actively involved in the criminal process (Erez & Bienkowska, 1993: 47). In the German and French criminal justice systems, the victim can enter the litigation process as a auxiliary prosecutor or submit a legal request for compensation, thus participating in the prosecution (Brienen & Hoegen, 2000: 1066-1067).

In the German criminal justice system, a number of important principles govern criminal lawsuits including the principle of “separation of plaintiff and court powers”. In addition, the principal claimants are not the victim (or the family thereof), but the state and society who are responsible for carrying out the prosecution through judicial experts. According to another principle, each court shall have a prosecution section. The prosecutor, though obliged to obey her/his superior, shall have total judicial independence and shall prosecute the case, gather substantiating/positive evidence, and unveil the truth. Only under special circumstances can the victim directly initiate the proceedings in court. According to Code of Criminal Procedure, petite crimes including corporal damage or trespassing re among the crimes the prosecution of which can be directly initiated by the victim. Due to high criminal procedure costs, victims usually prefer to let the prosecution authorities pursue their interests in court (Walther, 2006: 113). In this system, the “appropriateness of prosecution principle” also holds. This principle rules that where public interest requires and where the crime is not severe, the case may be referred to non-criminal (civil) authorities without being processed in court. Moreover, a conditional/unconditional order of suspending prosecution can be issued for nonessential crimes. Nevertheless, the appropriateness of prosecution principle shall not be followed for severe crimes such as murder. The “prosecution legality principle” shall govern such cases (Freckman & Griech, 2003).

Following the advent of supportive victimological ideas, the concept of “fair trial” shall not apply exclusively to the accused, but can also be applied to protect the victim’s rights. Protecting human dignity would require that the victim be respected as a party to the legal case instead of being looked upon as positive evidence for discovering the truth. During the past two decades, significant changes have been introduced in the victim’s role. For example, during sentencing, the victim’s rights are to be considered in addition to the deterrence, retribution, and prevention principles and other similar principles. Moreover, discovering the truth is of utmost importance. As soon as the case is referred to the court, the relevant judicial authority shall endeavor towards the discovery of the truth. The victim shall have basic and fundamental rights to initiate criminal proceedings in the police organization, the court, and the prosecutor’s headquarters. This right is recognized not only in Article 158 of Germany’s Code of Criminal Procedure, but also in Germany’s Constitutional Court (where it is referred to as a fundamental right). Statistics prove that about 90% of the cases are initiated by the victim acting as the claimant (Walther, 2006: 113).

Upon the enactment of these developments, the victim was enabled to initiate legal litigation in two ways: 1) initiating a lawsuit as an auxiliary prosecutor or collateral prosecutor; and 2) initiating a private litigation and a criminal lawsuit simultaneously (Sanders, 2003: 222). Statistics prove that in about 20% of the important cases, the victim enters the legal process as an auxiliary claimant (Walther, 2006: 113). In case of severe crimes or murder, the victim or relatives thereof can enter the legal procedure as auxiliary prosecutors (Brienen & Hoegen, 2000: 364). Moreover, although initially the claimant shall have to pay attorney’s fees, such fees are paid by the condemned party if the accused is convicted (Juy-Brimann, 2002: 302). German law follows a more or less similar pattern. Professor Reis believes that before a person suspected of committing a criminal act is recognized as the perpetrator, the victim of the crime shall be considered as the sole potential victim (Belling, 1928: 126; Reis, 1984). ------- had also explicitly stated that, during the criminal procedure, the victim can only be assumed to be a victim. He believes that such a person is only a presumed victim, i.e., a person who has initiated a presupposition of being a victim. As such, only a “non bis in idem” judgment can ascertain that an accused or a wanted person is indeed a criminal or a self-acclaimed victim is an actual victim. No presupposition with regard to inflicting pain and suffering on the victim shall be accepted, and claims of being victimized are hardly acceptable. As a result, the presumption of innocence shall contradict the claim set forth by the victim (Pin, 2002: 249).

Submitting a private complaint by the victim is a kind of expressing formal and vague support for the same. The court can, at any time, propound the weak probability of the accused person’s criminality and archive the case by issuing an interlocutory order without the claimant’s consent. Issuance of such an order might be met with immediate reaction on the part of the claimant (Articles 382-383, Germany’s Code of Criminal Procedure). If the order is approved and the case is terminated, the costs of the proceedings shall be paid by the victim (Articles 471-2 of the same procedure). For this reason, initiating a private complaint is not an attractive option (Hassemer, 2002: 80).

On the other hand, the victim has to, before the criminal procedure starts, act towards providing the collateral (bail) on behalf of the accused or the prosecuted person for payment of any expenses that might arise. The amount of this collateral is determined by the court hearing the case. Upon issuance of the interlocutory order or upon the claimant’s revoking the complaint, the victim shall have to pay the costs of the proceedings as well as the costs incurred on the accused (Article 471, Germany’s Code of Criminal Procedure). In fact, the victim has to acknowledge the probability of having to pay all the expenses arising from initiating a complaint. For this reason, this is not a very attractive method of submitting a complaint. Statistics show that only 10 percent of the victims who were aware of the possibility of submitting a private complaint actually took action in this regard. Moreover, only 6% of the private complaints led to actual senencing of the offender (Jung, 1992: 1158).

According to the French Code of Criminal Procedure, criminal procedure is a combination of private and public actions. Each crime would lead to setting forth a public action against the offender. Nevertheless, a crime causes tangible and intangible damages to the victim as well as damaging social order. Thus, in addition to a general (public) action aimed at punishing the offender, a private action is also filed for recompensing the victim. The purpose of this lawsuit is compensating for the damages caused by the crime, and the subject thereof is sentencing the criminal or any third party who holds civil liability for the crime (Stephani, Lovasor, and Bullock, 1998: 225).

The victim’s action has an auxiliary aspect. According to the French Code of Criminal Procedure, the victim can file a private lawsuit during any stage of the judicial investigation, even on the day of the trial, and can ask, orally or in writing, for compensation at the hearing (Lopez and Gina, 2000: 109). In this system, the victiom often enters the criminal process as a private claimant and the state is responsible for carrying out the punishment. Also, certain associations formed more than five years before to promote causes in different fields, e.g., women’s or children’s support associations can enter the legal process on behalf of the victim and ask for compensation (Center for Judicial Development, Iran’s Judiciary, 2009). In this regard, Articles 1.2 to 2.21 of the 2012  Amendment to French Code of Criminal Procedure can be cited (French Code of Criminal Procedure, 2012: 27-33). In fact, the victim may take legal action in the following ways: 1) Submitting a simple complaint to the court, the police unit, or gendarmerie against a known or unknown individual, or 2) taking legal action accompanied by the private complaint. In cases where investigations are compulsory (murder) or where a specific request is made (grave offense), this method can be applied by the victim (Borikan and Simon, 2010: 53). In the March 5, 2007 Amendment to the French Code of Criminal Procedure, another condition was added to Articles 85-88 which can considerably limit the victim’s use of the second method above. According to this amendment, a criminal complaint accompanied by a private action is conditioned to the fulfillment of certain terms. In one such term cited in Article 88, the interrogator can, upon issuing an order confirming the simultaneous complaints, require that the victim pay a certain amount to the accused (up to 15,000 Euros) proportional to the financial power of the victim and in accordance with the interrogator’s decision in case an interlocutory order is issued (Article 2.177, French Code of Criminal Procedure, 2011). Also, in cases of direct summons, the victim shall, in case an interlocutory order is issued or the accused is exonerated, face certain risks including being accused of libel, being assigned to recompense the accused in the penal court, and being fined up to 1500 Euros in a civil court (Borikan and Simon, 2010: 55-56). Such measures, aalthough predominantly aimed at preventing the plaintiff from abusing its right to complain and prolonging criminal proceedings, can also prepare the ground for the victim’s altogether refusing to complain and initiating legal proceedings.

As a rule, the statements in police reports contain information about the damages and injuries sustained by the victim. Nevertheless, such information is often used to prove the accusation rather than the victim’s claims for compensation. According to a 1998 circular, the police and gendarmes must provide exact and detailed information on the injuries and damages sustained by the victim. This circular subsequently assigns the General Prosecutor to ensure the validity of the statements made by the police in this regard. Also, judicial agents are required to form a file for the victim and attach the same to the legal papers. All the information about the victim and the injuries/ damages sustained by the same shall be recorded in a clear and transparent manner. The information contained in the file has to be provided by the victim or its attorney, by the examining magistrates, and by the organization acting in support of the victim. This circular emphasizes on the ability of the organizations that provide services to the victims such as supply of relevant information as well as pinpointing the problems the victims face after the crime has been committed. The main purpose of such filing is to provide the required information on the victim for the court.

In physical injuries, a medical report, and a report on psychological crises (if necessary) must be attached to the file. If such information is not included in the police report, then the public prosecutor or the examining magistrate shall contact the police, asking them to provide this information. If the public prosecutor or the examining magistrate require additional information, they shall either provide such information on their own or ask the police to act in this regard. Regarding victims of sexual crimes, this circular recommends that several correctional teams consisting of special trained officers, psychiatrists, and physicians shall be formed for carrying out the necessary interrogations and conducting physical/psychological tests. As a result, the risk of evidence loss is minimized. Additionally, to improve the methods used for treating sexual crime victims, it is recommended that cooperation agreements be concluded among the prosecutor’s office, the police, hospitals, the organization supporting the victim, and the relevant women’s organizations. Police statements regarding the injuries/damages sustained by the victim shall be available to the court at all times since the relevant file must be attached to the judicial case. Thus, the victim’s file is an important improvement. In addition, victims acting as private claimants shall have participatory rights which enable them to file for compensation. Information regarding payment of compensation and damages shall be made available to the court via the accused, the public prosecutor, or the defense lawyer. Such information is related to the court since, if the offender has already paid for damages or endeavors to make such payment to deter punishment/trial, then the case shall not be referred to the court except where violent crimes are involved (Zeinali and Samavati, 2008: 425).

1.3.       The Visible Role of the Victim in Initiating Criminal Prosecution in Iran

In the Iranian criminal system, the victim’s role goes beyond a mere witness. As Iran’s criminal code is based on the teaching of the holy Islam, in crimes related to private rights (Haq-ol-nas in Arabic meaning people’s rights), the victim is the main decision maker. In such crimes, the victim initiates the legal action and if the victim refuses to file for legal action, then the state shall not be obliged to press for prosecution. If the victim waivs the right to file legal action, then prosecution is stopped (Khaleqi, 2009: 99-106). In fact, the victim plays a significant role in the punishment or impunity of the criminal, this being a specification of the Islamic Criminal Code (Bassiomouni, 2003). For this reason and not surprisingly, the victim plays a visible role in the prosecution of the criminal code.

For example, according to Article 3 of Iranian Code of Criminal Procedure, “The private prosecution starts with the filing of a complaint by the complainant”. Moreover, according to Clause A, Article 3 of the 2002 Public and Revolutionary Courts Law, prosecution of private crimes by the court shall start upon filing a complaint by the private plaintiff. Based on Iran’s Code of Criminal Procedure (ICCP), crimes are of two types: 1) crimes the prosecution of which starts with the victim’s complaint and ends upon the victim’s wavering its right to proceed with the prosecution (Clause 3, Article 4 of ICCP). In the event of such crimes, the victim shall have absolute rights during all the stages of the prosecution, and is entitled to continue the prosecution until the desired result has been obtained. According to Article 6 of ICCP, the prosecution shall be stopped and an interlocutory order issued if the victim waivs its right to proceed with its initial complaint; 2) crimes where the victim initially plays a role at the outset of the complaint, but has no control on the proceedings thereafter (Clause 2, Article 4 of the same). In such crimes, the public aspect shall prevail upon the private aspect. The presence of the victim during investigations shall protect the victim’s rights since the court seeks to prove the crime and considers the victim’s rights as a secondary matter (Shiri, 2009: 450).

In the 2013 Islamic Penal Code, the victim’s role in waiving its right to complain (applied only to forgivable crimes) has been explained. According to Article 100 of the Islamic Penal Code, “In forgivable crimes, the waiving of the right to complain by the plaintiff shall lead to discontinuation of prosecution or carrying out the punishment, as the case may be.” According to Note 1 of the same, “Forgivable crimes are defined as crimes the investigation, prosecution, and punishment of which shall be dependent on the complainant’s pressing for charges without waiving its right to complain.” The victim’s role in such crimes is so significant that if the victim refuses to proceed with its complaint within a specified period, then its right to complain shall be forfeited. As Article 6 of the same code explicitly stresses, “In forgivable Tazir crimes, if the victim fails to submit a complaint within a year of being informed about the committed crime, then the victim’s right to complain shall be forfeited unless the victim has been controlled by the accused during this time or, for reasons outside the victim’s power, has been unable to file a complaint. In these cases, the aforementioned period shall be calculated from the date of lifting such restrictions …”. On the other hand, according to Note 2, Article 100 of the same, “Unforgivable crimes are defined as crimes the investigation, prosecution, hearing, and punishment of which cannot be influenced by the victim’s complaint or lack thereof.”

The crimes prosecutable by the prosecutor without the victim’s complaint and those that require a complaint from a private complainant are determined in the relevant code. Note to Article 4 of ICCP states in this regard, “The type of the criminal case and the applicable law shall be determined by the law.”

Nevertheless, according to the general criminal rules, the crimes are in most cases unforgivable and the forgivable crimes must be explicitly specified by the legislator. This is also emphasized in Article 103 of the 2003 Islamic Penal Code, “Crimes not explicitly ruled by the law as forgivable shall be considered to be unforgivable unless such crimes are classified as people’s rights (Haq-ol-nas) and can be forgiven based on religious laws.”

In Article 104, some of the forgivable crimes are enumerated.

Articles 65-72 of ICCP describe in detail the terms and conditions of filing a private complaint and the arrangements thereof. In addition to accepting written complaints, this law also validates filing of oral complaints. Accepting oral complaints is of particular importance immediately after committing the crime since at such a time the victim is in no condition to submit a written complaint. Based on this argument, the interpretation of Article 71 of ICCP regarding acceptance of oral complaints being due to the complainant’s illiteracy is not a correct interpretation since we read in the second part of Article 71, “The oral complaint shall be mentioned in the minutes and subsequently signed by the complainant. In case the complainant is illiterate, then …..”.

As shown in the above article, the philosophy behind an oral complaint is not based solely on the complainant’s being illiterate. Therefore, the interpretation that nowadays most members of the society are literate and, thus, oral complaints are not acceptable, shall not be a valid argument. For example, if the victim is in a poor physical or psychological state which render the victim unable to submit a written complaint, then the oral complaint shall be accepted and acted upon (The same: 451).

2.   Victim’s Role in Pursuing Criminal Prosecution

One of the important topics in the criminal procedure code is the extent to which the victim can influence the pursuit or stopping of prosecution. Different criminal justice systems take different approaches in this regard.

2.1.       Victim’s Role in Pursuing Prosecution in Comparative Systems

In the Romano-Germanic criminal systems, the victim plays a visible role in criminal prosecution. For example, in certain cases in France, the parties to a lawsuit might be urged to accept mediation (see Abbasi, 2003; Davis, Messmer, Umbreit & Coates, 1992). The parties can either accept or refuse such a proposition. Nevertheless, mediation in certain cases can benefit the victim since, during this process, the victim can not only file for compensation, but also explain the circumstances at the time of the crime and talk to the offender (Lopez and Gina, 2000: 111). If the crime has damaged the victim’s private interests, then the victim can reach a reconciliation agreement with the criminal regarding the victim’s own rights, but such an agreement shall not affect the public legal action involved. However, if pubic order has not been disturbed as a result of the crime, the court of first instance can decide, based on the reconciliation agreement, decide not to proceed with the prosecution and archive the case (Stephanie, 1998: 737).

In this regard, Article 152 of Germany’s Code of Criminal Procedure refers to the state’s exclusive right to prosecute. This means that the state (i.e., the court) shall be the only authority entitled to prosecute legal cases (the legality principle). The court’s action shall start once the crime has been declared. The court shall subsequently start legal action on behalf of the victim. The exclusive power of the state in prosecuting forgivable crimes and crimes of a private nature is somewhat diminished in this regard. The reason is that prosecuting these crimes is conditioned to the victim’s complaint, particularly in cases like  insult, forceful entry, theft by family members, destruction of property, disclosing confidential information/communications, and inflicting intentional/unintentional physical injury. These crimes are forgivable crimes and do not constitute much significance. In fact, criminal law suits of this kind are of a private nature and are related to supporting members of society in dealing with their private affairs. As such cases are outside the realm of public interests, they cannot be prosecuted without the victim’s request (Article 77, Germany’s General Penal Code). In such cases, the court does not initiate prosecution and the role thereof towards the victim shall be marginal. However, the victim can directly initiate prosecution by submitting a private complaint. This highly controversial mechanism allows the victim to uphold legal prosecution against the criminal acts that resulted in damages being incurred upon the victim. Article 374 of the Code of Criminal Procedure enumerates the forgivable crimes. The number of such crimes is on the increase as a result of the various amendments introduced in the General Penal Code (Mirkamali, 2011: No. 2: 160).

In the English criminal system, the Prosecution Service plays the main role in criminal prosecutions without the victim is not involved in pursuing or suspending prosecution. Based on public interests, the prosecutor can either stop or continue the pursuing of prosecution. In case the police decide to suspend prosecution, the victim is unlikely to hold up the same due to the many problems the victim would have to face in this regard as well as the high cost of prosecution. According to the Code for Crown Prosecutors, the Crown Prosecution Service shall evaluate two possibilities: 1) considering the existing evidence, is the accused likely to be sentenced? If there is insufficient evidence, then the Service shall suspend prosecution; otherwise, the Service shall decide whether pursuing the prosecution shall serve public interests; and proceed with or suspend prosecution accordingly (Sanders, 2003: 211-212). One of the evaluation criteria considered by the prosecutor would be the victim’s interests and views. In addition to such indices as the offender’s being dangerous and the severity of the offense, the prosecutor shall consider the victim’s interests and views to decide whether to pursue or suspend prosecution (Rook, 2001: 37-38).

Information regarding the victim’s interests and views is obtained through interviewing the same by the interrogation officer. If the victim explicitly expresses an interest in prosecuting the offender, then the police shall evaluate the victim’s view via taking into account the victim’s interests and the severity of the crime to take the proper decision (Sanders, 2003: 212). In some family crimes and even sexual crimes, if the prosecutors deem the crime is too severe or the offender is too dangerous, then the prosecutor can press ahead with the prosecution even if the victim declares an unwillingness to prosecute (Hoyle & Sanders, 2000: 14). Therefore, in the English criminal system, the prosecutor is the principal decision maker with respect to pursuing or suspending of prosecution and the victim’s role in this regard is minimal.

2.2.       Victim’s Role in Pursuing Criminal Prosecution in Iran

In the Iranian criminal system, the victim plays a determinant role in prosecution, particularly in the Haq-ol-nas cases. According to Article 6 of ICCP, if the private complainant waives its right to press ahead with charges, then prosecution is suspended and an interlocutory order issued. This is also explicitly stated in Article 100 of the 2013 Iran’s Islamic Penal Code. According to Note 2. Article 25 of the same, “Regarding forgivable crimes, if the punishment is stayed upon issuance of a final judgment based on the complainant’s or private plaintiff, then all the consequential effects of the punishment shall be automatically cancelled.” The “consequential effects” referred to in this article include being deprived of certain social rights like nomination for various elections, employment at governmental organizations, etc. as enumerated in Article 26.

According to Article 38 of the Amended Iran Islamic Penal  Code, the private complainant can affect litigation of the punishment. On the other hand, in line with the decarceration policies, the legislator in the said article can even exempt the criminal  from punishment in case certain conditions including the victim’s forgiveness can be satisfied. According to Article 39, “ Upon simultaneously proving the offender’s guilt and fulfilling the conditions set forth for litigation in Tazir crimes of the 7th and 8th degree, if the legislator decides that the criminal shall be corrected even without being exposed to the due punishment, if the criminal is a first offender, if the victim has forgiven the offender, and if the victim has been duly compensated in accordance with the required arrangements, then the legislator shall be entitled to exonerate the offender from punishment.”

According to Article 277 of ICCP, if the offender who has committed an unforgivable crime is sentenced, and the private complainant subsequently forgives the offender, than the offender can ask for litigation based on the private complainant’s forgiveness. In such a case, the court shall be obliged to grant litigation. On the other hand, the victim can also play a significant role in suspending prosecution. According to Article 22 of the Partial Amendment of Iran’s Judicial Acts, under certain circumstances, the accused person’s sentence can be suspended. One such condition is the victim’s forgiveness and another absence of a private complainant in the case. 

Although this article was based on protecting the accused person’s rights, it also provides indirect protection for the victim. According to this article, suspension of a sentence can only be affected in the absence of a victim or private complainant, or if the victim consents to the suspension. Suspending the sentence is a way of facilitating the victim’s compensation since it encourages the accused to act for recompensing the victim and obtaining the victim’s consent.

After the Islamic Revolution and introduction of changes in classifying crimes according to Islamic laws, controversial views were expressed regarding the legality of suspending a sentence and whether Article 22 should be adhered to (Khaleqi, 2008: 35-39), and, for a time, the legal procedure of suspending prosecution was restricted to child and juvenile crimes (Moazenzadegan, 2004: 138). Most Iranian jurists emphasize on the necessity of the legislator’s intervention in this regard. In article 81 of the ICCP, regulations similar to Article 22 of Partial Amendment of Iran’s Judicial Acts were included. According to theses regulations, providing compensation for the complainant or obtaining the victim’s consent for the purpose of compensation within the specified period is stipulated as a condition for issuing an interlocutory order.

3.   Victim’s Role in the Sentencing Stage

Granting the victim an opportunity to express its expectations as well as the damages and injuries sustained by the same is a most important factor in improving the victim’s condition, easing the victim’s strains, and triumphing over the victim’s problems caused by the crime, and ensuring the victim’s security and peace of mind. In addition, in most cases, it is important to the victim to relate the circumstances of the enduring the crime to those who have inflicted the crime upon the victim in an attempt to make the criminal comprehend the devastating consequences of the criminal act (Samavati, 2006: 103-4). The victim does not attend court sessions merely to pursue prosecution, but to express her or his rage about the injustice of the case. This expression of rage entails numerous demands including a request for being understood and receiving an acceptable account of what has actually happened (Lopez and Gina, 2000: 151). Meantime, “victim impact statements” is a way of facilitating due attention to the victim’s perspectives. This statement, regarded to be among the victim’s rights, is a text wherein the suffering and damages sustained by the victim during the committing of crime are described by the victim. The victim can also exert this right orally. If, in the sentencing stage, the victim uses the oral form of expression to refer to the punishment the victim believes should be imposed on the offender, then this oral statement is called “victim allocution” (Raijan Asli, Journal of Law, Iran Ministry of Justice, 2005: No. 52: 103/53).

There is little controversy regarding the victim’s right to make an impact statement. However, some scholars believe any intervention on the part of the victim in the sentencing stage shall cause fundamental damage and is against the principles of judicial independence and fair trial.

3.1.       Victim’s Active Participation in the Sentencing Stage in Comparative Law

In certain criminal justice systems, the prosecutor is looked upon as the representative of the victim’s views and concerns and is considered to be a person who provides sufficient support for the victim and the protection of the victim’s rights. For this reason, intervention on the part of the victim in such systems, while not affecting the law suits in any positive way, would only lead to increased traffic in the criminal justice system as a result of introducing unnecessary and irrelevant information. In addition, some believe that granting a direct role to the victim during the trial and sentencing stages shall introduce an emotional aspect into the legal procedure which is supposed to proceed rationally away from any emotions. On the other hand, since the accused must be granted the right to object to the claims directed at the same by the victim and to ask for validating the victim’s claims, this would prolong the trial. Using such rights at an extended level might also lead to imposition of more severe punishment and increase prison criminal population. The Victoria Rules Committee in Australia, upon examining the reasons offered by both advocates and opponents of this matter, and upon considering that many victims are not willing to participate in the criminal justice procedure by presenting documents and reasons indicating the effect of the committed crime on their lives, concluded that the opponents presented a stronger case regarding the effect of the victim’s statement on sentencing. As a result, this committee recommended that the victim should not participate in the criminal justice procedure (Fatah, 1992: No. 3: 103-8).

Despite this, the concern remains that such an approach does not guarantee that all the relevant information would be supplied to the judicial authorities in charge of decision making, and that the victim also misses the opportunity of being heard (Raijan Asli, Supportive Victimology, 2005: 52-3). In addition, granting this right to victims would ensure their satisfaction of the criminal justice procedure by assuring them that the system understands their concerns and endeavors to respond to them (Goodman, 2007: 728-729).

Although opposed in the past, this supportive approach has now been accepted at both the domestic and the international levels. Clause 6 of the Declaration of Fundamental Principles of Justice for Victims of Crime and Abuse of Power emphasizes on the necessity of the victims “being allowed to express their views and concerns at proper stages during the proceedings without directing any prejudice towards the offender and in compliance with the domestic criminal justice system norms if such demonstration can affect the personal interests of the victims. In addition, this method is applied at present in parts of New Zealand and Australia where the information related to the effects of crime on the victim is made available to the judge (UN Office of Drug Control and Crime Prevention, 2005: 84). In Germany, the victim is also allowed to participate in all the court sessions including the accused person’s last defense, and state opinions on the imposed damages on the victim and the proper punishment to be imposed (Walther, 2006: 11). In the United States, the victim can complete a form to express the effects of the crime on the victim. Another form can be filled by the victim regarding the proper punishment to be imposed on the offender (Hall, 1991: 233).

In England, judges are assigned, at the sentencing, to evaluate the respective effects of the crime and the punishment on the victim and the family thereof. However, according to the judgment issued in the “Thompson & Venables vs. United Kingdom” (2000), the victim’s relatives or the organizations related to the victim shall not challenge the imposed punishment. In the said case, the court of first stance had invited the parents of the victims and the victim’s representatives to attend the sentencing of the two 10 year old offenders who had brutally murdered a two year old toddler. The judge emphasized that though he was well aware of the significance of understanding the damage caused by the crime, the complainants were only allowed to express the extent of the pain caused by the crime without being entitled to determine what punishment was to be imposed. This verdice was subsequently approved by the court of appeal (Rook, 2001: 38) and the European Court of Human Rights (Doak, 2003: 29). The court of appeal ruled that the victim’s family were not eligible to challenge the punishment imposed by the court. For this reason, the victims’ views on proper punishment and the evaluation thereof are not heard in the court. If the victim’s views are heeded, it is likely that highly controversial votes are issued in similar cases in the future (Rook, 2001: 38).

In another ruling (R vs. Perks in 2000), it was announced that although ordinarily punishment is to be determined in proportion to the committed crime, under the following two particular circumstances, the victim’s views may affect the imposed punishment: 1) if the imposed punishment aggravates the victim’s grievances, then the judge can impose certain litigations, and 2) if the sympathy and forgiveness directed towards the accused by the victim reveals that the actual damage sustained by the victim is less severe than that recorded in the file (Doak, 2003: 29). As a result, in England, unlike the United States and Canada, the victim cannot propose a proper (in the victim’s view) punishment for the offender. Some English jurists oppose this method, arguing that it is against Article 6 of the European Convention on Human Rights where the victim is entitled to be granted a fair trial (Emmerson & Ashworth, 2001).

Nevertheless, following a number of trial schemes since 2001, the government widely implemented the “victim personal statement scheme”, allowing the victims to announce to the police in any manner they liked the way the crime had affected them (Doak, 2005: 295-6). This scheme was based on the obligations cited in the Victims Charter (1996). According to this charter, victims can expect to be provided with an opportunity for expressing their views on the way the crime has affected them. In fact, this scheme was the executive instrument of this obligation, based on which the victim can make a statement regarding the damages it has sustained as a result of the crime. This scheme is usually implemented by police officers. There are other forms which are completed by the witnesses in each case. The victim can also express the views thereof in court before the arrival of the accused. Generally, the accused is allowed to describe and write in the relevant form whatever the witnesses might have left out in their statements. For example, the victim may express a need for further support, further briefing on the progress of the case, the way the crime has affected the victim, etc. (Edwards, 2006: 677-679). The victim shall decide what effects to announce or hold back. If the victim is not willing to fill a form, the victim can waive its right in this regard (Rook, 2001: 38).

In 2001, the court of appeal issued a direction entitled “Practice Direction: Victim Personal Statement” (2001) and assigned the courts to implement the same. According to this directive, the following solutions must be followed in case the victim’s views are presented in court: 1) the victim’s statements and any other document to be considered before sentencing; 2) the evidence related to the effects of the crime on the victim must be shown to the victim and the attorney thereof, except in certain cases where such presentation would lead to negative consequences; 3) the victim must be briefed that the victim can only express views on the consequences and effects of the crime without being eligible to state an opinion on the deserved punishment, and that if such opinions are voiced by the victim, they shall be ignored by the court; 4) the court must specify in the verdict whether the evidence presented by the victim has affected the subsequent ruling.

3.2.       Neglecting Victim’s Views during Sentencing in Iran

In the Iranian criminal system, the victim does not play a significant role in the sentencing stage. According to Article 73 of the ICCP, the complainant is entitled to state its reasons during the investigations by citing due witnesses. According to Article 192, only the victim’s argument regarding financial damages can be heard by the court. This article is questionable due to the fact that it limits the victim’s rights in this regard to financial damages without referring to non-financial damages (Raijan Asli, Supportive Victimology, 2005: 53). Even the ICCP takes no measure to amend this shortcoming or to entitle the victim to express views on the way the crime has affected the victim. The only reference in this regard can be found in Article 39 where the law enforcement officers are assigned to include in their reports to the judicial authorities the victim’s statement regarding the damages incurred upon the victim. 

In the initial draft of this bill, a clause had been included for citing in the bill of indictment the exact extent of damages sustained by the victim for the purpose of determining the effect of such damage on the issued rulings. However, unfortunately, this clause was later removed from the final draft of the bill.  

A review of the judicial procedure reveals that including the victim’s statement is essential. For example, whereas in many legal cases, including relinquishment of maintenance, the victim’s main concern is receiving compensation and maintenance to provide a livelihood as well as being apologized to by the offender for omission of the act, the victim would not truly want the offender (who is the head of the family) to be sentenced to prison and be turned into a criminal with a record for a financial dispute (unfortunately, in most cases, the court ruling in Iran in such cases entails prison sentences). Therefore, it is absolutely essential that the courts take into account the statements and demands of the victim before issuance of due rulings.

Nevertheless, perhaps Iran’s 2013 Islamic Penal Code can be considered an improvement in increasing the role of the victim in the sentencing stage. The reason is that, according to this code, the complainant can forgive the offender during the judicial decision making stage, and the victim can play a role in postponing the court ruling (Article 40). Moreover, the prison sentence in Article 64 has been replaced with other forms of punishment.

Conclusion

Although, in the past, the victim used to be the forgotten element in the criminal process, this situation has changed in the past two decades. Various factors including introduction of supportive victimological ideas and due measures on the part of international organizations have led to more widespread presence of the victim in the criminal process, so that respecting the rights of the victims (like those of the accused) has become a major priority in the criminal justice system.

According to comparative studies, different criminal systems follow different approaches towards victim’s participation in the criminal process. Some systems support active participation of the victim in the criminal process, whereas other systems emphasize on the victim’s passive role. The significant point here is the similarity that exists between the systems derived from a common origin. In the Romano-Germanic criminal systems, the active presence of the victim in the criminal prosecution process is encouraged. In such systems, the victim plays an active role in criminal prosecution. However, the victim’s role in the sentencing stage is less prominent. Conversely, the criminal systems based on Common Law emphasize on the passive role of the victim in initiating and pursuing criminal prosecution; and the victim’s role in the sentencing stage is more prominent in such systems.

In the Iranian criminal justice system, the characteristics of the Romano-Germanic criminal justice systems are evident. In other words, the victim plays an active role during the prosecution stage. Perhaps this characteristic is more tangible in the Iranian criminal system as compared to other systems since for the crimes classified as “Haq-ol-nas” (people’s rights), the victim’s position is emphasized and several powers are granted to the victim for pursuing the criminal case. However, as in other Romano-Germanic based criminal systems, the victim’s participation in the sentencing stage is less prominent and the victim’s views regarding the type of punishment to be imposed are not duly heeded. Of course, this aspect has been slightly improved in the 2013 Islamic Penal Code and in Iran’s Code of Criminal Procedure (which is in the process of final ratification).

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