A/HRC/27/56
(f)
The sense of empowerment that victims derive from participating in criminal
procedures can catalyze demands for justice which, in turn, may have beneficial nonrecurrence effects.
95.
Whether those consequences occur depends on the way in which victim participation
mechanisms are designed. The track record seems to be mixed, but highlights the relative
dearth of institutionalized mechanisms. The Special Rapporteur, therefore, calls for support
for systematic studies of victim participation measures, particularly in domestic processes,
and, given their promise, of ways of turning potential into reality more effectively. The
Special Rapporteur will devote attention to this topic in the future.
96.
Analysis of more specific questions relating to victim participation in the design of
prosecutorial strategies has thus far been neglected. The following are among the main
motives for formalizing the participation of victims in the process of formulating a
prosecutorial strategy:
(a)
Since many major decisions crucially affecting the interests and the rights of
victims are taken long before a trial starts, the promotion of the rights of victims should call
for allowing them to participate in the very formulation of prosecutorial strategies.
(b)
A very concrete contribution of victims to the articulation of a prosecutorial
strategy relates to the identification of the range of possible violations, allowing the
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
according to 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
prevent the need to amend the strategy or indictments at a later stage. A strategic decision
to engage victims at an early stage, potentially leading to prosecution services bringing
cumulative charges, where appropriate, 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.50 At the Extraordinary Chambers in the Courts of
Cambodia, the intervention of civil parties at the investigation stage resulted in
investigations and subsequently in charges of forced marriage, a crime which remained
hidden until then.51 It can be expected that victims would play a similar role in helping to
identify relevant charges in domestic jurisdictions.
(c)
In the difficult exercise of trying to weigh the different elements of a
prosecutorial strategy, the contributions of victims can be important in the determination of
the “most responsible” and “most serious crimes”, as they are not bound by formal
conceptions of hierarchy, but are familiar with the dynamics of local contexts and,
particularly, with the impact of the various forms of criminality from which they have
suffered, often bodily.
97.
Against this background, the Special Rapporteur calls for greater attention to be paid
to the development and strengthening of mechanisms enabling the effective participation of
victims in deliberations on the design of prosecutorial strategies.
50
51
See, for example, International Tribunal for Rwanda, Prosecutor v. Akayesu, case No. ICTR-96-4-T;
Jean-Paul Akayesu was convicted for, inter alia, rape as a crime against humanity, and rape as a crime
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.
Office of the Co-Investigating Judges, Order on request for investigative action concerning forced
marriages and forced sexual relations (document No. D268/2).
19
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