Elusive Victim - Protection in Criminal Litigation: Legal Framework & Challenges

Monday, June 8, 2015, 12:57 AM

Elusive Victim - Protection in Criminal Litigation: Legal Framework & Challenges

Hussain Mohmmad Fazlul Bari[1]

I.   Introduction:

Notwithstanding the sporadic, piecemeal and passive recognition of the victims of crime in our national legislations, in essence, the victims’ meaningful access to criminal proceedings is still quite limited. Our commitment to fair trial in the constitution along with international human rights instruments basically revolves around a cluster of procedural safeguards to the accused. Though the victims of crime and/ or the surviving next kith and kin of the deceased - victim suffer unfathomable physical, emotional, psychological, financial injury, they are typically excluded from taking part any participatory role in the justice process other than to serve as mere witnesses. The Code of Criminal Procedure 1898[2] ensures no better protection for the victims of crimes. Over the years a host of special legislations were enacted to combat violence against women which also offer rather hazy and reluctant victim protection scheme. The agencies of criminal justice system are also quite often oblivious to the plight of the victims of crimes. In absence of definite legal as well as institutional framework, restorative justice still remains highly elusive in Bangladesh.

II. International concern for victim protection:

In general, international human rights law has been explicit in specifying procedural rights of the accused that are necessary requirement for fair trial proceeding. Access to justice is a fundamental right of all persons as enshrined in International Covenant on Civil and Political Rights (ICCPR) 1966.[3] The Covenant, however, only goes into detail with regard to basic procedural rights that are accorded to accused persons. It does not specifically focus on the importance of the formal and substantive rights of victims in the context of criminal proceedings. Nevertheless, to varying degrees, there is growing recognition at the international, regional and national level of the relevance of emphasising the role of victims in criminal litigation. In particular, The United Nations General Assembly in 1985 adopted Basic Principles of Justice for Victims of Crime and Abuse of Power thus:[4]

-Victim should be treated with compensation and respect for their dignity. They are entitled to the mechanisms of justice and promote redress, as provided for by national legislation, for the harm they have suffered.

-Judicial and administrative mechanism should be established and strengthened where necessary to enable victims to obtain redress through formal and informal procedures that are expeditious, fair in expensive and accessible.

III. Importance of restorative justice:

For every crime committed, there are at least two victims: society suffers a violation of its laws which renders the peace of its citizens in jeopardy and the actual victim suffers an injury to person or property. Therefore, criminal justice system allows the state to play the key role in the prosecution of a criminal case. In our system the public prosecutor takes center stage and represents the interests of the state in delivering justice and the actual victim of the crime is relegated to the role of lone witness for the prosecution.

Restorative justice or holistic protection of the victim and witnesses is indispensable for restoring the confidence of the citizenry in the justice system by protecting the innocent and the victim and by punishing unsparingly the offender.

According one author, “restorative justice is far more concerned about the restoration of the victim and victimised community than costly punishment to the offender. It also elevates the importance of the victim in the criminal justice process through increased involvement, input and services”[5]

There is no gainsaying that assistance to the victims of crime is of paramount significance because victims have suffered irreparable loss as a result of crime. Likewise, ensuring the right to fair trial to both accused and the victim is equally crucial for a balanced decision.

However, some legal scholars question whether victims’ active participation in criminal proceeding and sentencing blurs the lines between civil and criminal proceeding. Some are also concerned about the possibility of increased sentencing disparity and bias based on victim attributes. Another school of thought is that such victim protection scheme may incur additional costs to the justice system and it may also contribute to the procrastination of the proceeding.

In spite of such concerns about the victim participation in criminal proceeding, our Apex Court has laid down that:[6]

“In a democratic country governed by rule of law, the government is responsible for ensuring free and fair trial not only to the accused but also to the victim of crime. It is also emphasised that the court is not only to see the right of the accused persons, but also to see that the victim of crime can have a trial free from all fear and insecurity.”

Further, victim’s participatory role in justice system will surely enhance the quality of justice, and the right to fair trial for both the accused and the victim will be more significant exercise. Consequently, popular confidence on criminal justice will increase and societal peace and harmony will be restored in the long run. Increased compassion for the victims often leads to a higher reporting of crime and victim participation at trials and an increase in the system's ability to secure more convictions and seek longer sentences. The victim, no less than the offender, has a real and personal interest in seeing the imposition of a just penalty.

IV. National legal framework for victim protection:

Though a victim in general sets the law in motion by lodging a Complaint or First Information Report (ejahar), in essence s/he still retains no right to be present, informed and heard, to have a voice in criminal litigation except to be a lone prosecution - witness when being summoned by the court. 

In general, Code of Criminal Procedure 1898 offers a host of rights to the victim of crime which do in no way specifically protect the victim in criminal proceeding.[7]

However, recent special legislative reforms clearly reflect the concern for the wellbeing of the victim of crimes especially those are subjected to offence relating to violence against women. The statutes listed below have some provisions for compassionate treatment of the victims:

(a)   Nari o Shishu Nirjaton Domon Ain 2000[8];

(b)   Acid Oporadh Domon Ain 2002[9];

(c)   Jatio Aingoto Sohaota Ain 2000[10];

(d)   Manab Pachar Protirodh o Domon Ain 2012[11].

V. Major Challenges in victim protection:

Current criminal justice system places the victims in a passive position. The victims of crime feel powerless and vulnerable; some even feel twice victimised, first by the accused, and then by the police and the courts that often overlook their concerns. Abdullah Al Faruque rightly observed that our criminal justice system, being based on the adversarial model, focuses heavily on the offender and his rights and is often blamed for its insensitivity and inaction towards victim protection.[12] Further, insensitive questioning by the police, inadequate provision of information, delays, or unexplained decisions by prosecutors to discontinue cases entail further suffering to the victims.[13] Ironically, the “guilty man is lodged, fed, clothed, warmed, lighted and entertained in a model cell at the expense of the State, from the taxes that the victim pays to the treasury.”[14]

Following concerns are quite apparent in exercising the rights of the victims in our criminal justice system:

(a)   Hurdles in instituting lawsuit:In most countries including Bangladesh, officially reported crimes are only 'the tip of the iceberg' as many crimes go unnoticed and unreported to the machinery of law due to a plethora of reasons. It is not always easy to file a case by a victim. Sometimes, the real culprit lodges FIR with a concocted or different story to divert the attention of people and it causes hardship to the hapless victim in institution of FIR of cross case.[15]

(b)   Victim’s challenges during investigation and pre-trial proceeding: A victim cannot withdraw a case at the investigation stage. It is the exclusive domain of the investigating officer to conduct the investigation where the victim has nothing to do unless being called for by the investigating officer. Sometimes, the investigating officer refrain himself from recording the statements of the victim and his witnesses in a professional manner. The statement of victim or/ and other witness cannot also be recorded under section 164 of Code of criminal Procedure by the Magistrate unless they are produced by the investigation officer. Same is the position about holding Test Identification Parade of person or property, forensic examination of any seized article or viscera etc. If the police submits the police report after investigation, notice is to be issued to the informant of the case, and the crime victim, if not informant, remains unaware about the result of the investigation.  If the prosecution fails due to faulty investigation, the crime victim never gets justice.

If the crime victim is not the informant in FIR, he does not get information in above mentioned matters and thus after institution of FIR, the victim has no alternative but to visit court every day to verify as to whether any bail application, release application or criminal revision against any order has been filed by accused.

(c)   As stated earlier, a victim is a mere prosecution witness during trial where he can led testimony if he is summoned by the Court. In most cases, the victim and other witnesses lost enthusiasm to depose during trial that usually takes place after long time. Further, in most cases prosecution side failed to produce the prosecution witnesses including the victim as their present trace and location change. More so, in some heinous crimes including offence relating to violence against women, the victim is compelled to offer obliging evidence in favour of the accused due to some local compromise or for want of adequate protective measures for the witnesses. Many a times hardened criminals and gangsters hold out threat or even kill the victim as an obstacle to fair trial. In certain cases, the victim feels uncomfortable about giving answers in the immediate presence of the offender. Further, many victims of crime relating to violence against women become target of further psychological assault by way of unhealthy and sensual cross-examination of the lawyer. Most importantly, in absence of effective pre-trial conference between the victim/ witnesses and the prosecutor puts the victim in jeopardy during trial.[16]

 

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[1] Hussain Mohmmad Fazlul Bari, LLB (Honours) LLM (University of Chittagong), LLM in Human Rights (Merit) (Queen Mary University of London), (Chevening Scholar) is working as Additional Chief Judicial Magistrate, Kishoreganj.

 

[2] V of 1898.

 

[3] ICCPR, Article 14; Bangladesh ratified ICCPR on 6 Sept 2000.

 

[4] UN Resolution A/RES/40/34 of November 29, 1985.

 

[5] See generally, Vibhute, K. I., ‘Justice to Victim of Crime: Emerging Trends and Legislative Models in India’, in: K. I. Vibhute (ed.), Criminal Justice, Eastern Book Company, Lucknow (2004), pp. 370-395.

 

[6] Tayazuddin and another v State 21 BLD 503.

 

[7] For details see generally, Bari, Hussain M. F., ‘Plight of Victim of Crime’, The Daily Star, 6 May 2014.

 

[8] Act VIII of 2000.

 

[9] Act II of 2002.

 

[10] Act VI of 2000.

 

[11] Act III of 2012.

 

[12] Faruque, Abdullah- Al et al., ‘Victim Protection in Bangladesh: A critical appraisal of legal and institutional framework’ Bangladesh Journal of Law, Volume 13, Nos. 1&2, BILIA, Dhaka (2013), pp. 33-48.

 

[13] Zender, Lucia, Criminal Justice, Oxford University Press: Oxford (2004), p. 143.

 

[14] Gaur, K.D., Commentary on Indian Penal Code, Universal Law Publishing Co. (2006), p. 1569.

 

[15] For detail exposition, see generally, Haque, Md. Hamidul, ‘About First Information Report’, JATI Journal, Volume VI, JATI, Dhaka (2007), pp. 7-15.

 

[16] Currently, prosecution is appointed on ad hoc basis and its officers are quite handicapped with poor payment and paucity of facilities.

 

[17] For instance, Code of Criminal Procedure (V of 1898), Section 545 provides for compensatory provision for the victim of crime.

 

[18] Law Commission defines ‘victim’ while suggesting a well drafted  law for victim and witness protection; For details see, 74^th Report of Law Commission; also available at http://www.lawcommissionbangladesh.org/reports.htm

 

[19] See generally, Khan, Saira Rahman, ‘Patriarchy versus Justice for Women: The Struggle Continues’, Journal of Chevening Society of Bangladesh, Volume 1, (2012), p. 87.