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Published : October 06, 2012 | Author : jyo
Category : Human Rights laws | Total Views : 17610 | Rating :

Jyosna Dighe Asst. Professor, Gokhale Education Society

 Victims' Rights in India

Victims have few legal rights to be informed, present and heard within the criminal justice system. Victims do not have to be notified of court proceedings or of the arrest or release of the defendant, they have no right to attend the trial or other proceedings, and they have no right to make a statement to the court at sentencing or at other hearings. Moreover, victim assistance programs are virtually non-existent.

The core rights for victims of crime include:
* The right to attend criminal justice proceedings;
* The right to apply for compensation;
* The right to be heard and participate in criminal justice proceedings;
* The right to be informed of proceedings and events in the criminal justice process, of legal rights and remedies, and of available services;
* The right to protection from intimidation and harassment;
* The right to restitution from the offender;
* The right to prompt return of personal property seized as evidence;
* The right to a speedy trial; and
* The right to enforcement of these rights.

Victims’ Rights
Constitutional Amendments
In addition to statutory victims’ rights, nearly two-thirds of the states in USA have adopted amendments to their state constitutions guaranteeing rights to victims of crime. Including crime victims’ rights in state constitutions increases the strength, permanence, and enforceability of victims’ rights.

Incorporating victims’ rights into constitutions also gives those rights a degree of permanence. Ordinary statutes can be changed at any time by the legislature. In contrast, it is relatively difficult to change the constitution of a state. In most states, a constitutional amendment must be passed by each house of the legislature by a two-thirds majority. This must usually be done at least twice, often with a legislative election between votes. Identical language must be passed each time. In addition, giving victims’ rights constitutional protections generally makes those rights enforceable. If an official or a state agency violates a constitutional right, a court usually has the power to order that official or agency to comply with the constitution.

In general, the amendments give victims constitutional rights to:
* be treated with fairness, dignity and respect;
* be informed of proceedings and events, such as the release of the defendant;
* attend the trial and other proceedings;
* be heard at critical points in the criminal justice system, such as sentencing or parole hearings; and
* be awarded restitution from a convicted offender.

Who May Exercise Victims' Rights
Exactly who the law considers a "victim" entitled to a particular right. Victims of any violent crime, whether felony or misdemeanor, victims of serious juvenile offences etc.

Victims' rights to be extended to the surviving family members of a homicide victim, or to the parent, guardian, or other relative of a minor, disabled or incompetent victim, a victim's legal representative or another person designated by the victim may also exercise rights on the victim's behalf.

Along with general rights for crime victims, special rights for certain groups of crime victims with unique needs are a must. These include victims of sexual assault, domestic violence or stalking, or victims who are elderly, young children, or victims with disabilities.

Crime victims and their families be given the right to be present during criminal justice proceedings. This right is important to victims, who often want to see the criminal justice process at work. They may want to hear counsel’s arguments and view the reactions of the judge, witnesses and the defendant.

Proceedings Victims May Attend
The victim's right to attend proceedings includes the right to attend the trial, sentencing, and parole hearing of the offender, but may include other proceedings as well.

Exclusion of Witnesses
A victim’s right to attend the trial is often limited in cases where the victim is also a witness in the criminal case. A longstanding rule of evidence provides for the exclusion, or “sequestering,” of witnesses during the trial. This rule was designed to prevent witnesses from being influenced by the testimony of other witnesses in the case. Some jurisdictions require any witness to be excluded on the request of a party while others leave exclusion to the discretion of the judge. Increasingly, jurisdictions are changing this rule on witnesses to allow victims to remain in the courtroom even when they will be a witness, or to require the court to first rule that the victim’s testimony is likely to be influenced by the testimony of other witnesses before ordering the victim to be kept out of the courtroom.

Presence of Support Persons
Crime victims must benefit from having a support person present during proceedings. The supportive presence of a trusted advocate or family member often enables a crime victim to exercise his or her right to be present during proceedings.

Crime victim compensation should be a government program designed to reimburse victims of violent crime for their out-of-pocket expenses relating to the crime. Surviving or affected family members may also be eligible for limited compensation. Generally, victims apply to the compensation program of the state where they live or where the crime occurred. Compensation can be paid even when no one is arrested or convicted for the crime.

Direct victims of violent crime, or to their surviving family members. Victims of serious financial crime to seek compensation for counseling expenses. Those who pay a victim’s medical or funeral expenses should be eligible for direct reimbursement from the compensation program.

In order to be eligible, the victim must generally have reported the crime and cooperated in the prosecution of the case. They must also file an application for compensation within a certain time period. Victims may be ineligible if their own misconduct contributed to their injuries—for example, if they were injured while they were committing a crime.

Compensable Expenses

Compensation programs will be medical expenses, counseling expenses, lost wages, and funeral expenses.

One of the most significant rights for crime victims is the right to be heard during critical criminal justice proceedings that affect their interests. Such participation is the primary means by which victims play a proactive role in the criminal justice process. When a crime victim is allowed to speak at the sentencing hearing, or to submit a victim impact statement regarding the impact of the offence on the victim and the victim’s family, there is an acknowledgment by the criminal justice system of the personal nature of the crime and of the harm suffered.

Conferral with Prosecutor
Prosecutor to obtain the views of the victim before a disposition is final, whether this involves a plea agreement, dismissal of charges, or a pretrial diversion of the defendant. The prosecutor to certify to the court that he or she has consulted the victim before a plea can be accepted.

Communication with the Court or other Authority
The victims right to be heard by the court at sentencing.

The criminal justice system is often required to provide general information of interest to victims. Give victims or their families the right to be notified of important, scheduled criminal proceedings and the outcomes of those proceedings. Notify victims when hearings have been cancelled and rescheduled.

General Information to be provided to Victims

Victims may must have the right to be informed of various legal rights, including the rights to: attend a proceeding and/or submit a victim impact statement; sue the offender for money damages in the civil justice system; have a court order that they be protected from the offender and/or the offender's family and associates.

Notice of Events and Proceedings in the Criminal Justice Process
There are dozens of events or proceedings in the ordinary criminal justice process for which notice may be required by statute. These commonly include:

* Arrest of the accused;
* Arraignment of the defendant;
* Bail release and related proceedings;
* Pretrial release and related proceedings;
* Dismissal of charges;
* Negotiated pleas and entry of plea bargain;
* Trial dates and times;
* Sentencing hearings;
* Final sentence or disposition;
* Conditions of probation or parole;
* Post-trial relief proceedings;
* Appeals process and related proceedings;
* Parole release and related proceedings;
* Pardon/commutation of sentence and related proceedings;
* Cancelled and rescheduled proceedings;
* Final release from confinement, including from a mental institution; and
* Escape and subsequent recapture of offender.

Give crime victims the right to protection during the criminal justice process. This right may take the form of a generally stated right to protection, or may include specific protective measures. Most defined are criminal offences of intimidation of victims or witnesses.

Protective Measures
Measures to protect crime victims take various forms. Some examples include:
* Police escorts to and from court;
* Secure waiting areas separate from those of the accused and his/her family, witnesses and friends during court proceedings;
* Witness protection programs;
* Residence relocation; and
* Denial of bail or imposition of specific conditions of bail release—such as no contact orders—for defendants found to present a danger to the community or to protect the safety of victims and/or witnesses.

The term "restitution" generally refers to restoration of the harm caused by the defendant, most commonly in the form of payment for damages. It can also refer to the return or repair of property stolen or damaged in the course of the crime.

Courts to order restitution by convicted offenders as part of their sentences.

Losses to be Covered
Restitution should cover any out-of-pocket losses directly relating to the crime, including:
* medical expenses;
* therapy costs;
* prescription charges;
* counseling costs;
* lost wages;
* expenses related to participating in the criminal justice process (such as travel costs and child care expenses);
* lost or damaged property;
* insurance deductibles; and
* other expenses that resulted directly from the crime.

Restitution will not cover such things as pain and suffering or emotional distress, but may cover reasonably expected future losses, such as ongoing medical or counseling expenses.In calculating the restitution owed, a court should look at the victim’s losses.

A victim of crime may suffer the loss of property in two ways: by theft or when property is seized and held as evidence.

Give crime victims the right to “a speedy trial” or “disposition of the case free from unreasonable delay.”

In practical effect, and often in the law, the right to a speedy trial takes the form of a limitation on continuances. “Continuances” are court-ordered delays of court proceedings. The court must also consider the impact of the delay on the victim.

Since crime victims have been afforded legal rights, there is need to ensure that those rights are enforced.

Enforcement Mechanisms The victims must have “legal standing” to assert their rights. Because a crime victim is not a “party” to the case—that status is limited to the defendant and the prosecuting jurisdiction (such as the state)—legal standing for victims must be automatic and must be provided by statute or court ruling.

Aside from general “standing” to assert rights, some jurisdictions have other limited court options for enforcement. They may permit a victim to seek a writ of mandamus, a court order directed to an agency to comply with the law, or allow other limited actions.

Creation of a designated entity to receive, investigate, and attempt to resolve crime victim complaints. There must be an ombudsman or state victim advocate; in others, it may be a committee or board. Give the investigatory agency the ability to impose consequences on offending agencies or officials found to have violated a victim’s rights.

Victim’s Right and the Police
Victims have right to demand for improved service. Victimized members of the general public are pressuring police administrators to reorder institutional priorities, reallocate resources, and redeploy officers. Law enforcement decision-makers find it difficult to openly oppose these calls for greater responsiveness by the people, to whom they are sworn to protect and serve. When these decision-makers resist pro-victim initiatives, they argue that their department doesn’t have the manpower or money; or that not enough cases arise to justify such redeployments; or that the demands are impractical or unreasonable in terms of additional workloads.

The struggle by victims to gain formal rights within the criminal justice system continues on many fronts. And, as the analysis presented above demonstrates, the obstacles that the victims encounters come from many quarters. Resistance from the victims’ ostensible allies within the criminal justice system tends to be low profile, and takes the form of foot-dragging, cooptation, and objections on pragmatic grounds.

The criminologists and victimologists had discovered through their research and evaluations that the newly-gained rights have little impact, and that business goes on as usual. Two reactions are possible, to all these pains of Victims. The first reaction, both threatening and highly undesirable, could be the abandonment of the campaign for formal rights within the system and a turn towards a subtle endorsement of illegal, vigilante street justice. The second option, much more promising, could be that a growing number of victims will redirect their attention and energies into exploring the potential of the emerging field of informal justice. Practiced at the neighborhood level, this alternative to formal adjudication relies upon the principles of conflict resolution, using the techniques of mediation to achieve the goals of victim restitution, offender rehabilitation, mutual reconciliation, and community harmony.

Authors contact info - articles The  author can be reached at: jyo@legalserviceindia.com

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Article Comments

Posted by venkatesh on January 27, 2017
excellent article

Posted by rameshwar rao on October 22, 2016
demand regarding criminal acts amendments,support crime victims

Posted by m.rameshwar rao on September 13, 2015
condemn political interventions on criminal investigations further demand to funish culprits

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