Victim Rights in the Spanish Criminal Justice System
1. Introduction
The emergence of victimology has helped alleviate the neglect of the victim, a situation mirrored in international and community law and now in our country. Victimology can thus build a public criminal law that guarantees the protection of fundamental rights and freedoms of all citizens, both aggressor and victim. It is necessary to overcome the traditional bilateral understanding (offender-State) of the penal system and include the victim, thus creating victim-State relations.
2. International Protection of Victims
The level of protection is explained by the adoption of legal instruments within international and supranational organizations that protect victims’ interests.
2.1. Guardianship of Victims in International Organizations
In the United Nations, a Declaration articulates the fundamental principles of justice for victims of crime and abuse of power. It aims at obtaining assistance and repair, rather than outlining a specific legal status of the victim against the penal justice system. It affords victims the opportunity to obtain information about their rights to redress through administrative or judicial mechanisms (Art. 5), and their role and scope in these procedures. It establishes the need to ensure that victims’ views and concerns are presented and considered at appropriate stages of the proceedings, including the possibility of mediation or arbitration. Assistance to victims is provided throughout the judicial process. Repair/compensation includes the return of property or payment for damage or loss suffered, reimbursement of expenses incurred as a result of victimization, the provision of services, and the restoration of rights. The Statute of the International Criminal Court also contains provisions for the protection of victims.
The Council of Europe and the European Union have also issued recommendations. Recommendation No. R (87) 21 on assistance to victims and preventing victimization seeks to ensure that victims and their families receive emergency and continuing aid. It is very focused on the protection of witnesses, possibly victims with special characteristics or in certain areas of criminality. Recommendation No. R (97) 13 concerns the intimidation of witnesses and the rights of the defense, and Recommendation No. R (2005) 9 concerns the protection of witnesses and collaborators of justice.
2.2. Protection of Victims in the European Union
The Council Framework Decision aims to improve the rights of victims and offer comprehensive assistance through specialized services and support. Member states should adapt their laws accordingly. The Decision seeks to articulate a comprehensive treatment of the needs of the victim, harmonizing the rules and practices of individual Member States as it pertains to the observance of the main rights of victims. It recognizes the right of victims to obtain information, the right to a hearing, and the right to supply evidence. It aims to reduce communication difficulties affecting the understanding of the process by the victim and to facilitate their participation in the legal process. It establishes the duty of states to protect victims’ safety and privacy and to prevent secondary victimization. Finally, it refers to repair and compensation. The Framework Decision aims to guarantee victims the right to obtain a decision on compensation by the offender within a reasonable time in criminal proceedings.
3. The Victim in the Spanish Criminal Justice System
At the international level, there has been remarkable progress in regulating the substantive and procedural rights of victims. In our country, following the Anglo-Saxon tradition, there is an express and systematic statement of all the rights afforded to victims. This forces the legal system to identify the specific privileges granted to victims in the Spanish system.
4. Victim and Substantive Criminal Law
Victimology considerations are observed in the design and regulation of substantive criminal law institutions, such as the consent of the victim, the definition of some types of crime, forecasting procedural conditions, the importance of forgiveness in some crimes, and the system of criminal penalties or civil liability, among others.
3.1.1. The Criminal Implications of Consent
The victim’s will can have criminal repercussions through the granting of valid consent to injury or endangering their legal rights, provided that such consent, in addition to being referred to individual legal rights, meets the necessary standards of validity from a criminal point of view. Specifically, it must have been given freely and by someone legally entitled to do so. In relation to life or health, the transcendence of the owner’s will becomes more restricted by express provision of law.
3.1.2. Victimization in the Design of Criminal Types and Modifying Circumstances of Liability
The Penal Code of 1995 emphasizes the political-criminal trend to assess the helplessness of the victim in determining the severity of the crime and, therefore, the penalty. In general, the legal assessment of such situations of distress often increases the responsibility of the perpetrator. Concern for situations of helplessness originating from the youth or inability of the victim is also manifest in other areas of criminal law. For example, prescribing criminal liability by reason of the minority of the victim at the time of committing the crime delays the onset of calculating the limitation period for a number of criminal cases, often until the victim reaches the age of majority (or even until their death, if it occurs before that date).
3.1.3. Crimes Prosecuted by the Victim’s Request and Forgiveness
There are different categories of non-prosecutable offenses:
- a) Private crimes: These require a charge to initiate the process and support the importance of forgiveness, such as in cases of libel against individuals.
- b) Semi-public offenses: These require the complaint of the victim to initiate a criminal case, and the effective exercise of forgiveness is possible.
- c) Semi-private offenses: These require a prior complaint by the victim for prosecution, but once initiated, forgiveness does not have any relevance.
- d) Quasi-offenses: The victim shares with the prosecutor the power to mobilize the punitive action. The victim’s decision-making powers relate to the beginning and end of the criminal process through private prosecutability mechanisms.