|
There are some
emerging principles in the field of victimology, such as; [1]
The Victim Centered Approach
In this approach,
victim is taken at the center level with all focused. Although the system
cannot heal victim’s trauma. However it can avoid further harm. It concerns
on notifying victim of hearing dates or any change in schedule time for
hearing dates and any case related process, providing information about the
status of the spelled perpetrator, discussing decision about plea
negotiation, and providing prime crime victim an opportunity to address the
court before the sentenced is pronounced. Communities must adopt this
approach, because it is a type of behavioral approach that everybody must
show courtesies to the crime victim.
Real Justice Approach
There are different
kinds of justice; distributive justice refers to the extent to which
society’s institutions ensure that benefits and burdens are distributed among
society’s members in ways that are fair and just. A second important kind of
justice is retributive or corrective justice. Retributive justice refers to
the extent to which punishments are fair and just. Yet a third important kind
of justice is compensatory justice.
Compensatory justice
refers to the extent to which people are fairly compensated for their
injuries by those who have injured them; just compensation in proportional to
the loss inflicted on a person. Victim justice System concerns on the
compensatory justice Compensation/Reparation, Restitution, Rehabilitations,
Social Security, Victim/Witness Assistance/Protection, Financial Support,
Counseling, and Mediation are the necessary tools for the real justice for
crime victim.
During the past
three decades, several justifications for victim compensation programs have
been advanced in victimology ground. It implies that justice should not only
be punishing or preventing but should be compensating the loss, because
“justice is primarily a means to socio-co-operating and that social
co-operation is primarily meant to promote the maximum happiness and well
being of each and all. Individuals are most likely to trust and co-operate
freely with systems whether they themselves win or lose by those systems when
fair process is observed. The fair process does include engagement; Involving
offenders/victims and their families in decisions that affect them by asking
for their input so they can by asking for their input so they can tell their story,
explanation; everyone involved and affected should understand why final
decisions are made as they are.
Human Rights and Limit Risk Approach
Crime is the
violation of basic human rights. The purpose of victim justice is to protect
the rights of victim as a human rights approach. Right to life is the basic
ground of humanitarian law. Rights not to be victimized, rights to be
compensated against victimization in terms of financial/material
compensation, reparation, rehabilitation, right to stand as a party on the
failure/withdrawal of the state cases, right to be entitled for free medical
treatment, right o free legal aid, right to be consulted before the decision
is made for withdrawal of sub-judice cases or before to grant pardon, right
to access to justice are the fundamental rights that must be ensure for crime
victim.
Welfare State Approach
The modern welfare
state is sought to achieved and ensured by punishing the accused in
accordance with the provision of law. To ensure that innocent person may not
be victimized, the accused found guilty he is punished and kept in prison
with an object of reforming him. Courts have form time to time directed the
state authorities to provide necessary compensation to victim. The functional
justification for victim compensation is the ‘welfare theory’ arising from
the assumption that the government exists and function for the
people.Dussich, “The Challenges of Victimology.”
Parents Patriae Approach
Parents patriae is
the legal concept from British common law connotes “ultimate parent”/
provides legal basis for the state to intervene on behalf of children.
Parents patriae model is known as the welfare model. State is the guardian of
all citizens. The main duty of government is to promote effective
administration to secure safety and security of people at large. This notion
is applicable to protect victim and provide them justice from state.
[1] Ramesh Raj
Pradhan, “Victim Justice System and Its Underlying Principles”, Nepal Bar
Council Law Journal (2014/15): 162-66.
Justice for Crime Victim
In 1964, Herbert
Packer introduced the “Due Process” and “Crime Control” models of the
criminal justice system. Briefly, Packer’s Due Process Model is based on the
concept that the purpose of the criminal justice system is to insure a true
determination of guilt while Packer’s Crime Control Model is based on the
concept that the purpose of the criminal justice system is to control crime.
These two models have served as the standard foundation for understanding and
discussing the criminal justice system and criminal justice policy. [1] One
of the common factors between Packer’s Due process and Crime Control Models
is they focus on the defendant with little thought given to the victim. The
Due Process Model focuses on determining whether the defendant violated the
law and insuring a true finding of guilt while the Crime Control Model
focuses on determining the appropriate punishment for the particular
defendant. There is little opportunity for the victim to participate in the
prosecution under these models of the criminal justice system.
Similarly, some of
the famous and important decisions made by US Supreme Court, such as Mapp v.
Ohio, 367 U.S. 643 (1961), Gideon v. Wainwright, 372 U.S. 335 (1963), and
Miranda v. Arizona, 384, U.S. 436 (1996) attracted an enormous amount of
attention and highlighted the public perception that the criminal justice
system was more concerned with releasing defendants based on legal
technicalities than on the administration of justice. These decisions also
underscored the perceived imbalance between the rights of criminal defendants
and the lack of enforceable rights for victims. [2]
In the context, most
of the criminal justice system, instead of being responsive to the victim’s
actual needs, crime victim was considered merely as information of detecting
culprit to the police, witness of proving beyond reasonable doubt to the
prosecutor and subjected to cross examination to the defense lawyer and
evidence to justify verdict to the judges. [3] Some victims have found that
their treatment by the officials in the criminal justice system to be too
stressful, demeaning, unfair, disregarding of their feelings, rights, needs
and interests. Sometimes they see the system as a second victimization which
can be more unpleasant than the original crime. [4]
Criminal justice
system is comprised of crime, criminal law, police, prosecutors, judges,
criminals, victims and courts. The main aim of the criminal justice is to
punish offenders and provides compensation/reparation to the victim as well
as to prevent potential offender from committing a crime. However, for many
years, we have been taught that the two basic purposes of the Criminal
Justice System are assuring a ‘true finding’ of guilt and controlling crime.
In theory, a true finding of guilty is accomplished by guaranteeing that the
defendant is dealt within a just manner by protecting the defendant’s
Constitutional Rights-commonly referred to as ‘Due Process’. But the due
process of criminal justice system overlooks victim involvement in prosecution
and justice system.
The main reason
behind the invisibility of actual victim in criminal justice system wa that
in early 20th century many criminologist followed a positives idea of crime,
which viewed that an individual’s criminal behavior was determined by certain
social or biological forces, which they could neither control nor understand
so the offenders were considered to be less responsible for their
criminality. In this model the criminal is seen largely as a victim. At this
point, criminal justice system tends to focus attention on offender rather
than the needs of the actual victim. Early Marxist or left wing criminology
often saw the criminal as victim, but in these writings the victimization is
thought the use of power in labeling the offender, and in the bias of the way
the law operates. The effect is again to make the literal victim invisible.
[5]
Most of the
criminological research of central government in Britain was interested only
on the problem of crime and not with the problem of vulnerability. So, much
of the early interest in victims in Britain came from non-government funded
research, from victim support scheme, and from feminist writers on rape,
sexual assaults and violence against women and children. [6] Today the
interest in victims has increased and it became central subject to
professionals, to officials and to the public. A variety of paradigm shifts,
scientific advances, and social and political forces since the 1960s and
1970s provided a foundation from which theories of victimization emerged.
Radical
criminologists have now started talking of protecting the interests of the
victims of crime. This has resulted in the growth of victimology as a
science. This is a science which, on the one hand, studies the degree and
type of participation of the victim in the genesis or development of the
offence, and, on the other hand, evaluates what is just and proper for the
victim’s relief and benefit. [7] In the 1950s, an English reformer initiated
a modern movement to bring the victim back into the criminal justice
equation. [8]
The feminist
movement of 1970s and 1980s forced attention on to new areas of criminal
concerned such as rape, domestic violence, child abuse and sexual harassment.
These served the purpose of moving attention at least in part of private home
sphere instead of just the street and to recognition of many perpetrators as
relatives or acquaintances not strangers. At the beginning of the 1970s there
emerged in the USA a number of group concerned with: restitution or compensation
for victims. During the decade of 1980s, the strong movement towards
reorganization of victim’s rights in the criminal justice system has
increased. This movement has been directed by two approaches; (a) First, is
to increase participation of victim in the criminal justice system, (b)
second, is to provide victim compensation.
These were taken up
internationally by the United Nations in its 1985 charter for victim’s rights
entitled Declaration on the Basic Principles of Justice for Victims of Crime and
Abuse of Power. This charter first specified ways in which the victims should
have access to judicial and administrative procedures, be treated fairly and
with respect, be kept informed, be given right to counsel and have their
views considered; secondly, encouraged restitution (or compensation) both by
the offender and, where necessary, the government; and finally suggested ways
in which the victim may need assistance to recover from the support services.
This declaration has
recommended some of the measures to be taken at the national, regional and
international levels to improve victim’s access to justice and fair
treatment, restitution, compensation and social assistance for victims of
crime. Similarly, there is Guidelines on Justice in Matters involving Child
Victims and Witness of Crime (Resolution 2005/20 of the UN Economic and
Social Council, 2005).
Likewise the
European Council addresses the problem of victim’s rights and adopted the
European Convention on the Compensation of Victim of Violent Crime, 1983.
International Conventions like; ICCPR, 1966, CEDAW, 1979, CRC, 1989, CAT,
1894, and other conventions states on the victim’s rights, which are legally
binding and State Party most comply with the provisions of these instruments.
The role, importance
and visibility of the victim have varied greatly in human societies. These
variations reflect the historical evaluation of legal concepts, as well as
diverse approached to the interpretation of such notions as that of
individual responsibility.
During the last
several years, theorists have included accommodations such as fairness,
respect, and dignity for victims in discussions about the purposes of the
Criminal justice System. Criminal justice policy and procedure is changing to
address victims’ issues, and victim input has become a significant part of
all aspects of the criminal justice system. For example, many states have
enacted victim rights legislation that provides victims an opportunity to
participate in a prosecution through attending hearings and discussing the
case with the prosecutor. This type of legislation would suggest that the
victims’ issues have become important in the justice system since their
status is recognized through legislation.
[1] Ferguson Pamela,
“The Presumption of Innocence and Its Role in the Criminal Process”, The
University of Dundee, accessed November 2, 2016,
http://discovery.dundee.ac.uk/portal/files/9248075/Final_Published_Version.pdf.
[2] T. Westbrrok, “At Least Treat Us Like Criminals: South Carolina Responds
To Victims’ Pleas for Equal Rights”, 49South Carolina Law Review (1998):
575-578. [3] Pradhananga, “Rape Victim”, [4] Katherine D. Willaiams, Textbook
on Criminology, 7th ed. (Oxford University Press, 2012), 103. [5] Ibid. [6]
Ibid. [7] Ahuja, Criminology, 387. [8] Ibid.
Justice for Crime Victim in Different
Countries
In this section, the
Researcher has highlighted on the movements for crime victim in UK, USA,
India and Nepal and has examined the provisions for right to compensation and
rehabilitation for crime victim in these countries.
UK
The most prominent
legislation in England that showed concern for crime victims was Criminal
Justice Act, 1972. According to this Act payment of compensation was the most
appropriate action after the conviction of the offender. This Act was
subsequently replaced by Criminal Court Act, 1973. This Act empowered the
courts to make the compensation order under Section 35(1) “by or before which
a person is convicted of an offence” and additionally the courts can make any
other order it thought appropriate. It is important to note that this
provision extended to not only personal injury loss or damage suffered by the
immediate victim of the offence but also to persons indirectly affected by
it, provided, of course, that a clear and casual connection can be
established. The Criminal Court Act, 1973 also went through several
amendments and lastly replaced by Criminal Justice Act, 1988.
Under the 1973 Act,
the compensation order was entirely a matter of discretion of the court. But
under the Criminal Justice Act, 1988, the courts had no such discretion to
grant or not to grant the compensation to the victims. Further, the Act made
it obligatory for the courts to record reasons for not awarding the
compensation, even if it had a power to order compensation, but declining to
do so. [1]
Apart from the
compensation to the victim of crime by the offender, there is also a scheme
which provides compensation to the victim of crime by the State. The Criminal
Injuries Compensation Scheme was first introduced as an experiment on a
non-statutory basis in the year 1964[2] to provide ex-gratia compensation to
the victims of crimes of violence and to those hurt in their attempts to
arrest the offenders and to prevent crimes. This scheme was revised in the
year 1979, in which major changes were introduced to make it effective, so
also the scope of the scheme was extended so as to cover the victims of
family violence. The government of UK has introduced a revised Criminal
Injury Compensation Scheme giving effect from 1979 on a non-statutory basis
to provide ex-gratia compensation to compensate the victims of crime.
Criminal Justice Act of 1988 replaced the earlier scheme with another placed
on a statutory footing, with the consequence that eligible applicants now
have an express legal right to compensation. The new scheme is based a
closely on the earlier scheme, although certain adjustments are made.
The earlier scheme
simply stipulated that victims of a crime of violence including arson and
poisoning were eligible but the phrase was not further defined and its
interpretation caused difficulty. Consequently, it sets out a new and more
detailed definition of eligibility, intended to cover same broad group of
victims. [3] Under the present scheme so also in the earlier scheme, persons
who are injured in the law enforcement activity are entitled to compensation.
The Act embodies provisions for victim’s compensation against various crimes,
such as Rape, corporate offences, traffic violation, dangerous driving etc.
The concern for
victims continued with launching of new schemes like ‘Victim Support’ and
victim’s welfare. These schemes provided the victim various rights like right
to be heard, right to necessary information for protecting his interest,
right to be protected by the enforcement agencies, right to receive
compensation and restitution, right to receive support and assistance etc.
The Victim’s Charter, 1990 and Victim’s Charter, 1996 issued by Home Office
provides for standards of service to be given to the victim and his family.
It included right to be treated human dignity and respect, right to support
and protection and right to compensation and reparation.
The compensation
awarded through the State Funded Criminal Injuries Schemes which began in
1964 was modified in 1969, and 1990. Finally the Criminal Injury Compensation
Act, 1995 established a new tariff approach based on types of injuries rather
than individualized consideration of harm or damage. The Act set a standard
fixed payment ranging from 1000 to 250,000 pounds depending upon the severity
of injuries which were grouped into twenty five bands. The subsequent
enactments in UK considered reparation as other mode of doing justice crime
victims. The Crime and Disorder Act, 1998, the Youth Justice and Criminal
Evidence Act, 1999 and the Power of criminal Court Act, 2000 are the
legislations where the reparation to the victims is death with. The scheme of
reparation is applied at three different levels in the criminal justice. At
pre-prosecution, in between conviction and sentence and as a part of
punishment to make the offender liable personally for his behavior.
In general, England
and Wales have been able to take positive action toward rebalancing justice
with no task force, no declarations and no framework decisions. By the time
the Declaration for victims of crime was adopted in 1985, the government of
England and Wales had already developed a network of victim assistant
agencies (referred to as “victim support schemes”) as well as relatively
generous criminal injuries program. The National association of Victim
Support Schemes was set up by the British government to establish victims’
service standards across England and Wales in 1979. The British government
also modified the restitution law so that restitution was to be paid before
fines. In 1996 and 2004 this charter went to two further iterations. The
British government didn’t stop there. In 2006, it adopted the code of
practice for victims of crime will benefit from which services and the
service providers. The minister of justice for England and Wales appointed a
victim champion to advocate for victim’s issues and advise top levels of
government on victim concerns. In 2008, Sara Payne was appointed the same who
called for more integration between victims and criminal justice systems. In
2010, two new initiatives were rolled out to better serve victims of crime.
One was to launch a National Victim service to build on a national network of
victim assistance agencies and court based services. The second was to
replace the rotating victim champion with a permanent victim commissioner to
oversee the National Victim service. [4]
USA
The victims’
movement in the United States involved the confluence of five independent
activities: (i) The development of a field called victimology, (ii) The
introduction of state victim compensation programs, (iii) The rise of the
women’s movement, (iv) The rise of crime that was accompanied by a parallel
dissatisfaction with the criminal justice system, (v) The growth of victim
activism.
The importation of
victimology to the United States was due largely to the work of the scholar
Stephen Schafer, whose book The Victim and His Criminal: A Study in
Functional Responsibility became mandatory reading for anyone interested in
the study of crime victims and their behaviors. The idea that the state
should provide financial reimbursement to victims of crime for their losses
was initially propounded by English penal reformer Margery fry in the 1950s.
It was first implemented in New Zealand in 1963 and Great Britain passed a
similar law shortly thereafter. Early compensation programs were welfare
programs providing help to victims in need. This was reflected in Justice
A.J. Goldberg’s comment, “In a fundamental sense, then, one who suffers the
impact of criminal violence is also the victim of society’s long inattention
to poverty and social injustice…” [5] California initiate the first state
victim compensation program in 1964, soon followed by New York. By 1979,
there were 28 state compensation programs. By then, most had rejected the
welfare precept in favor of a justice orientation in which victims were seen
as deserving of compensation whether or not they were in need. Compensation
programs also promoted involvement by victims in the criminal justice system
since they required victims to report crimes to the police and to cooperate
with the prosecution.
In America, there
was a serious imbalance between the rights of offenders and crime victims.
Despite the reliance on victims, the American Jurisprudence has emphasized
its interest in favor of offenders. As a consequence the needs of the victims
had become subordinate to the offenders. During the years 1960s and 1970s a
movement for the victims’ rights started in view of extraordinary rise in the
crime. The movement began as a coalition of various organizations seeking to
redress the criminal justice system’s inadequate treatment of victims. Early
in 1980 President Ronal Regan appointed a Task Force to investigate the crime
trends and ascertain the position of victims in criminal proceedings. The
Task Force in its report called for assistance for victims and recommended a
Constitutional Amendment recognizing the victims’ right to be presented and
heard at all the critical states of criminal proceeding and restitution in
all the cases where victim suffered financial loss.
Prior to this Task
Force Report, the notable legislation concerning victims was The Victim
Witness Protection Act, 1982. This Act anticipated the recommendations of the
Task Force Report and incorporated important provisions concerning victims’
rights which included restitution by the victim impact statements at
sentencing of offenders. The Act also required the Attorney General to lay
down the policies for the protection of victims and witnesses. Overall the
Act assured a fair treatment for victims in Federal Criminal Justice System,
by assuring his participation and protection from victimization along with
restitution on priority basis.
There after the
Victims of Crimes Act, 1984 referred was passed by which the Congress
provided funding for victim assistance, victim compensation and training and
technical assistance for victim service providers in the state. States
responded by making suitable amendments in their respective laws. Then in the
subsequent Victims Rights and Restitution Act, 1990, the Congress gave the
crime victims a host of rights which included the right to notification of
court proceedings and right to attend them, right to know the changes in the
status of offenders’ detention, right to consult the prosecutors and right to
protection from the offenders’ aggression. Later, during President Bill
Clinton’s regime The Violent Crime Control Act and the Law Enforcement Act,
1994 gave federal victims right to speak at sentencing herrings, made
restitution mandatory in sexual harassment cases and expanded the funding for
the local victim assistance programmes.
The next important
legislation, The Mandatory Restitution Act, 1996 authorized the federal
judges to order full restitution from the offenders in the specific cases of
fraud, property crimes, consumer product tampering and drug crimes etc. By
1998, 29 states have amended their Constitutions under the influence of the
recommendations by Regan Task Force, granting new rights to victims which
included right to speedy trial and right to participate in parole
proceedings.
Finally there came
the most important legislation advancing the victims’ rights in 2004, the
Crime Victims Rights Act, 2004 (CVRA). The Act strengthened the existing
federal crime victims’ rights provisions and its most important contribution
is the creation of a judicial enforcement regime, including standing for
crime victims to transform often illusory crime victims’ rights into
meaningful, enforceable ones. The CVRA can be distinguished from earlier
legislations and most state constitutional amendments and statutes in three
areas: (i) It extended rights and remedies to victims of all infringements
and violent crimes, (ii) It gave a significant right to participate at all
critical stages of criminal proceedings and (iii) It provided judicial
enforcement regime, which gave a right to victim to appeal against a
violation of his rights immediately after the violation occurs to federal
appellate courts and the same to be heard within seventy-two hours. The Act
provides the following rights to victims; the right to be reasonably
protected from the accused, the right to reasonable, accurate, and timely
notice of any public court proceeding, or any parole proceeding, involving
the crime or of any release or escape of the accused, the right not to be
excluded from any such public court proceeding, unless the court, after
receiving clear and convincing evidence, determines that testimony by the
victim would be materially altered if the victim heard other testimony at
that proceeding, the right to be reasonably heard at any public proceeding in
the district court involving release, plea, sentencing, or any parole
proceeding, the reasonable right to confer with the attorney for the
Government in the case, the right to full and timely restitution as provided
in law, the right to proceedings free from unreasonable delay, the right to
be treated with fairness and with respect for the victim’s dignity and
privacy, the right to be informed in a timely manner of any plea bargain or
deferred prosecution agreement. [6]
CVRA is a seminal
contribution towards advancing crime victims’ rights through the creation of
a new judicial enforcement regime. This results in increase of cooperation of
victim with police, prosecution and judges. Further, the creation of new
judicial enforcement regime has resulted in the new body of case law. In
interpreting and applying victims’ rights, it has set standards to guide the
conduct of trial judges, prosecutors, defense attorneys, and other criminal
justice officials. Moreover, provision regarding Victims’ Rights Amendment
has been proposed for other states as well as for the Constitution of United
States.
India
The Indian
Constitution has several provisions which endorse the principle of victim
compensation. The principles of victimology has foundations in the Indian
Constitution particularly in the Fundamental Rights and Directive Principles
of State Policy, which form the bulwark for a new social order in which
social and economic justice would be ensured. [7] The Constitution
illustrates that the state shall make effective provision for “securing
public assistance in cases of disablement and in other cases of underserved
want.” [8] The Article 41, which has relevance to victimology in a wider
perspective, mandates, inter alia, that the state shall make effective
provision for “securing public assistance in cases of disablement and in
other cases of undeserved want.” Article 51-A makes it a fundamental duty of
every citizen of India “to protect and improve the natural environment … and
to have compassion for living creatures” and “to develop humanism.” This
mandate expressly provided for in the Constitution, broadly forms the
constitutional underpinnings for victimology. Further, the guarantee against
unjustified deprivation of life and liberty has in it elements obligating the
state to compensate victims of criminal violence. [9]
The Code of Criminal
Procedure, 1973 has recognized the principle of victim compensation. It
authorizes magistrates to direct complainants or information to pay
compensation to people accused by them without reasonable cause. [10] It
further empowers the court to order a person to pay compensation to another
person for causing a police officer to arrest such other person wrongfully.
[11] It also enables the court imposing a sentence in a criminal proceeding
to grant compensation to the victim and order the payment of costs of the
prosecution. [12] The plain reading of the section shows that sub-section (1)
and (3) vests power on the trail court to award compensation and sub-section
(4) gives power even to appellant or revision court to order for
compensation. It demands that claim of compensation must be accompanied by
following conditions. Loss or injury suffered. Loss or injury must be caused
by the offence, and such person can recover the compensation in a civil
court. Sub section (3) empowers the court, in its discretion, to order accuse
to pay compensation. This is on the discretion of the sentencing court and is
to be paid out of the fine recovered. The court may award compensation to the
victim of crime at the time of passing judgment, if it considers appropriate
in a particular case in the interest of justice.
These provisions
make the trial courts and the appellate courts competent to award
compensation to the victims of crime only after trial and conviction of the
accused. These powers to award compensation are not subsidiary to other
sentence, but it is in addition there too.
According to Section
357, the Court is enabled to direct the accused, who caused the death of
another person, to pay compensation to the persons who are, under the Fatal
accident Act, 1855, entitled to recover damages from ten person sentenced,
for the loss resulting to them from such death which the accused person has
been to sentenced. The object of the section therefore, is to provide compensation
payable to the persons who are entitled to recover damages from teh person
even though fine does not form part of the sentence.
The legislative
framework in Indian regarding compensation to victim of crime can be trace
through two major legislations i.e. Code of Criminal Procedure, 1973 and
Probations of Offenders Act, 1958 and Constitution of India. Probation of
Offenders act, 1958 and Code of Criminal Procedure, 1973, are both subject to
the court’s discretion but payment but payment under Code of Criminal
Procedure is possible only when the act is both a tort and a crime.
The Code of Criminal
Procedure was amended in 2008 and a new section 357A was introduced. The crux
of the amendment was that the state governments come up with a compensation
scheme for the victim or his dependents who have suffered loss or injury as a
result of the crime and who require rehabilitation. It states that; every
government in co-ordination with central government shall prepare a scheme
for providing funds for the purpose of compensation to the victim or his
dependents who have suffer loss or injury as a result of the crime and who
require rehabilitation. [13] It further states that whenever a recommendation
is made by the Court for compensation, the District Legal service Authority
or the State Legal Service Authority, as the case may be, shall decide the
quantum of compensation to be awarded. [14] There shall be a Fund, namely,
the Victims Compensation Fund from which the amount of compensation, as
decided by the Delhi State Legal services Authority (DSLSA) or District Legal
Services Authority shall be paid to the victims or their dependents(s) who
have suffered loss or injury as a result of an offence and who require
rehabilitation.
The looking at the
practical limitations, in the provisions of s.357 regarding compensation to
the victims of crime which worked as hindrance in the minds of the judges in
awarding compensation to victims of crime, the Parliament has incorporated
s.357A[15] in the Parent Act of the Code of Criminal Procedure by way of
amendment in 2008, S. 357A is indeed an advanced step for improving the
plight of victims. The Amendment Act, 2008 also provides for right to appeal
against an order imposing inadequate compensation.
The Criminal Law
(amendment) Act, 2013 has inserted new offenses and its legal provision to
Indian Penal Code 1860, there is a provision of justice for crime victim. The
compensation payable by the State Government under section-357A shall be in
addition to the payment of fine to the victim under section 326A or section
376D of the India Penal Code.
Though no separate
law for victims of crime has yet been enacted in India, the silver lining is
that victim justice has been rendered through affirmative action and orders
of the apex court. Besides, many national level Commissions and Committees
have strongly advocated victims’ rights and reiterated the need for a
victims’ law. Studies on crime victims by researchers started in India only
during the late 1970s. Since the 1980s, many scholars have conducted studies
in victimology. [16]
Nepal
In early 1854, the
General Code (Muluki Ain of 1910 BS) was introduced in Nepal considering it
to be a milestone in the history of criminal justice. This was the first
written and codified law in Nepal for both civil and criminal law matters,
which prescribed punishments for criminal cases on the basis of caste
hierarchy; it also recognized crimes such as forgery, offence against the
humans body and life including homicide, abortion, theft, arson, sexual offences.
Previously, punishment for the offenders was greatly influenced by religious
and cultural practices, mainly by the doctrines of Hindu Law.
The Code was amended
13 times, and the most important contribution in the criminal justice
administration of Nepal was the amendment of 1963, known as the Muluki Ain of
1963, which prevails till date to oversee all criminal proceedings. The
Muluki Ain is divided into five parts, of which – Part IV deals with crime
and punishment, which is again sub-divided into different chapters on
looting, cheating, theft, arson, counterfeiting, illegal detention,
kidnapping and hostage taking, and battery and homicide. This General Cod
1963 was secular in nature and for the first time in CJS history of Nepal; it
adopted the principle of ‘equality before the law.”
Nepal has ratified
the numbers of Human Rights treaties and conventions for respecting the
dignity of people. At present victim’s approach of justice has been
introduced in the CJS of Nepal. Criminal justice policy and procedure is
changing to address victims’ issues, and victim input has become a
significant part of all aspects of the CJS. The GON has introduced a
significant number of policies, both legislative and non-legislative, to
improve the situation of victims of crime. Nepal has faced a transitional
period with a political change. The present Constitution, for the first time
in Article 21 illustrates victim’s rights as a fundamental right. It states
that Victim of an offence shall have the right to be informed about the
investigation and proceedings of the case. It also states that Victim of an
offence shall have the right to social rehabilitation and compensation as
provided in law. These rights do not address all needs for all victims. For
example, they have not been guaranteed with te right to medical treatment,
right to be a party to discussion on the case being withdrawn, right to free
legal aid, right to access to justice and so on. It is a weakness that
suggests the Assembly was not convinced properly. It is however a significant
development.
In 2001, Dr. Shankar
Kumar Shrestha has published book “A Step Towards Victim Justice System,
Nepalese Perspectives”, which plays vital role for the protection and
promotion of victim’s right in the field of criminal justice system in Nepal.
Some laws, such as; Section 49 and 50 of Evidence Act, 2031, Section 20 and
21 of State Case act, 2049, Section 2 (c), 6, 10, 11, 13, 14, 17, 25, 26 of
Human Trafficking and Transportation (Control) Act, 2064, Section 49 and 51
of Children Act 2048 as well as Section 4,6, 7, 9, 10, 11 of Domestic
Violence (Offense and Control) Act, 2066 has provisioned on the rights of
victim, such as; the rights to reporting case, right to representation in
court, right to security, right to privacy, right to compensation etc. The
provisions mentioned Human Trafficking and Transportation (Control) Act, 2064
and of Domestic Violence (Offense and Control) Act, 2066 has spelled
progressively on the special rights to crime victim in comprehensive way.
As such GON has
enacted the National Minimum Standard, 2068 for the protection of the victim
of Human Trafficking and Transportation. Besides that, section 184, 186, 109,
115 of the proposed criminal code and criminal procedural bill, 2067 has
mentioned various rights to victim, such as; video testifying witness system,
if witness victim are unable to come in court, he/she as; video testifying
witness system, if witness/victim are unable to come in court, he/she can
testify through written statement or video conference, it has mentioned the
provision of justice along with compensation to the victim. There is another
proposed bill on witness protection and victim protection, which has
mentioned special provisions for victim and witness, such as; protection of
witness, service, financial support, allowances, compensation, privacy,
victim fund, victim compensation committee and victim protection
recommendation committee, etc. These proposed bills of Nepal have
incorporated various provisions illustrated in International Instruments and
guidelines for the protection of victims’ rights. Likewise, many national
level Commissions and Committees have strongly advocated victims’ rights and
reiterated the need for a victims’ law. Victimology, victims’ rights and
victim justice system are officially and academically accepted in most of the
syllabus of PSC, Law Universities and various training centers like JSJTC,
NJA and Nepal Police Academy. The Supreme Court of Nepal has made several
decisions with reference to doctrine of victimology and issues pertaining to
crime-victims. Now civil societies are actively involving in research on
crime victims and advocacy for their rights in Nepal.
The provisions for
the compensation for crime victim is scattered in different laws in Nepal.
There is no separate law for victims of crime in Nepal. Different western
countries have already adopted their crime victims’ compensation programs. In
our sub-continent, even India, has recently taken initiatives to uphold the
crime victim’s right to compensation.
[1] Criminal Court
Act (1973), Sec: 108-117 and schedules 6 and 7. [2] B. Jayasimha, “A
Comparative Study on Victim’s Rights in USA, UK and India”, Volume-4,
Issue-12, ISSN No 2277-8160, (2015). [3] UK Criminal Justice Act (1988), Sec.
109. [4] Jayasimha, “A Comparative Study”, 104. [5] A. J. Goldberg, “Preface:
Symposium on Governmental Compensation for Victims of Violence”, Southern
California Law Review (1970): 43. [6] The USA Crime Victim’s Rights Act
(2004). Sec. 3771 (a). [7] The Constitution of India, Part II and IV. [8] The
Constitution of India, Art. 41. [9] .D.D Basu, Constitutional Law of India
(Nagpur: Wadhwa and Co., 2003), 32. [10] The Code of Criminal Procedure
(1973), Sec. 250. [11] The Code of Criminal Procedure (1973), Sec. 358. [12]
The Code of Criminal Procedure (1973), Sec. 357(3). [13] The Code of Criminal
Procedure (1973), Sec. 357 A (1). [14] The Code of Criminal Procedure (1973),
Sec. 357 A (2). [15] Victim Compensation Scheme, S.357A. [16] Akash Shah,
“Victims, Victimizatin and Victimology”, The Legal Service India, accessed
November 15, 2016, http://www.legal services
india.com/article/article/Victims-victimizatin-and-victimology-1349-1.html.
|
Thank You for visiting
!
Comments
Post a Comment
facebook, twitter, google plus