A/HRC/34/62
dictatorships, even though prosecutors were not ready to move on them; however, this
action facilitated the prosecutions of the cases later on. 43
48.
In common law countries, victims or affected persons can participate in proceedings
by providing victim (personal or impact) statements. Although this represents a lower level
of participation than being a party, as in civil law countries, it does provide victims with,
inter alia, an opportunity to describe how the crime affected them; the chance to express
their concerns regarding fear of intimidation; an opportunity to request information about
the progress of the case; and, in some countries, the opportunity to claim compensation or
request assistance.
49.
In his report to the Human Rights Council in 2014 (A/HRC/27/56), the Special
Rapporteur argued in favour of expanding the participation of victims to an area that has
received comparatively little attention: the development of prosecutorial strategies. The
main reasons for doing so are given in the following paragraphs.
50.
Since many major decisions crucially affecting the interests and the rights of victims
are taken long before a trial starts, promoting the rights of victims calls for allowing them to
participate in the very formulation of prosecutorial strategies.
51.
A very concrete contribution of victims to the articulation of a prosecutorial strategy
relates to the identification of the range of possible violations, allowing prosecutors to
determine the range of possible charges. Ensuring the input of victims at the outset can later
help prosecutors to take cases forward and to investigate and frame charges in accordance
with the evidence obtained. If done at an early stage, it can serve as an additional incentive
for victims to come forward with testimonies and present evidence. It may also obviate the
need to amend the strategy or the indictments at a later stage. A strategic decision to engage
victims at an early stage can potentially lead to the prosecution services bringing
cumulative charges, where appropriate, and can help to reflect the multidimensional nature
of international crimes. Cases at the International Tribunal for the Former Yugoslavia and
the International Tribunal for Rwanda have demonstrated that victims have a decisive role
to play in the identification of the charges. 44 It can be expected that victims would play a
similar role in helping to identify relevant charges in domestic jurisdictions.
52.
The contributions of victims can be important in determining the “most responsible”
party and the “most serious crimes”, as victims are not bound by formal concepts of
hierarchy but are familiar with the dynamics of local contexts and, in particular, with the
impact of the various forms of criminality from which they have suffered.
53.
To conclude, while victim participation in criminal proceedings undoubtedly raises
challenges to efficiency and the perception of a fair trial for the accused, the participation of
those who suffered the actual violations as a result of the criminal actions under scrutiny is
important for the following reasons:
(a)
Victim participation implies the recognition of victims as rights holders,
which is tremendously empowering for them and others as they are afforded the respect of
formal State institutions and gain a space in the public sphere;
(b)
43
44
Such participation both manifests and strengthens the right to truth;
Ibid.
See, e.g., International Tribunal for Rwanda, case No. ICTR-96-4-T, Prosecutor v. Akayesu. JeanPaul Akayesu was convicted for, inter alia, rape as a crime against humanity and rape as an act of
genocide. However, the failure to include charges at the outset prevented future prosecutions for
sexual violence crimes at the Tribunal. See also REDRESS and African Rights, Survivors and PostGenocide Justice in Rwanda: Their Experiences, Perspectives and Hopes, 2008, pp. 95-98.
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