Secondary victimization and the right to due process, an important consideration.
A crime victim finds himself, through no fault of his own, in an extraordinary position. A shocking and sudden event has taken place, accompanied by various emotions. In addition to the have to endure of the crime itself, there are several unforeseen consequences for the victim afterwards, both during the preliminary investigation and at the trial on the merits.
In this context, the European Court of Human Rights has repeatedly emphasized that States have a positive obligation to pay attention to the position of the victim in the criminal process and particularly for victims of sexual abuse.
During the criminal proceedings, the defendant has the right that the trial be a fair conduct knows and can implement all kinds of means to conduct his defense to the fullest. In what way can this safeguard be harmoniously balanced with the position of the victim?
This contribution reflects on these two important principles, the right to a fair trial of a defendant versus the position of the victim and, more specifically, the secondary victimization that a protracted criminal trial can bring about.
What is secondary victimization and is it preventable?
Secondary victimization can be articulated as the aggravation of the victim's distress or harm by the course of the criminal proceedings, over and above the initial distress caused by the crime.
There are several factors that affect the extent to which a victim relives the trauma to some degree. These include the victim's level of participation during the proceedings, any confrontation with the suspect and the amount and accuracy of information communicated to the victim.
The attitude of the government toward the victim during the proceedings is crucial to prevent secondary victimization. Similarly, the European Court of Human Rights ruled in the recent judgment B. t. Russia of February 7, 2023. It was held that there was too careless and negligent handling of the minor victim's vulnerability by the government, exacerbating his mental and physical condition. Thus, the government's attitude just encouraged secondary victimization, which is obviously not the intention.
The judgment dealt with the case of a 12-year-old girl who lived with her guardian after staying in an orphanage. She told of sexual abuse that had occurred between the ages of seven and 10. Following this statement, criminal proceedings were initiated to investigate the sexual abuse. During these proceedings, however, unfortunately a whole number of things went wrong, both during the investigation and during the proceedings on the merits.
Thus, four different proceedings were initiated: one for each of the four suspects. As a result, the victim was interrogated twelve times (!) by four different investigators. On top of this was the fact that due to a carelessness of one of the investigators, she was even briefly in the same room with one of the suspects. All this ensured that during the proceedings her psychological and physical condition had deteriorated significantly and by the end of the proceedings she was having very great difficulty participating in the trial. The government had paid no heed whatsoever to the young victim's suffering.
The judgment outlined above fortunately concerns a very exceptional situation, but it does show how negligence or imprudence on the part of investigators negatively affects a victim's psychological state may have. Especially when the victim is a minor, extra precautions should be taken.
In Belgium, fortunately, a great deal more care has been taken for quite some time with underage victims in criminal cases. They are careful to limit the number of interrogations of minors as much as possible. They also try to have these interviews conducted by the same investigator in a "child-friendly" room. The prevention of secondary victimization is also taken into account during the court procedure. Provision is made for the trial to be held behind closed doors, as secondary victimization can occur as a result of a newspaper article reporting on the case.
Of course, in addition to the victim, there is always a suspect which also includes several rights enjoy. These rights of defense should always be exercised throughout the criminal proceedings weighed against the rights of witnesses and victims. It is the duty of the government to harmoniously balance the rights of defense with the rights of victims.
In addition to the government's responsibility regarding the prevention of secondary victimization, it is also important for the victim's wider environment itself to heed possible secondary victimization. For example, certain behaviors of friends, family, acquaintances or even colleagues may contribute to this.
As specialists in vice cases, the criminal lawyers at Bannister are always ready to offer a listening ear and guide you through further legal action with discretion. Do not hesitate to contact us at 03/369.28.00 or info@bannister.be.
