Abstract
While legal notions of procedural justice for defendants are predominantly perceived in the context of human rights (Article (Art.) 6 ECHR) and have a more ‘instrumental’ aim (guaranteeing a fair outcome of criminal proceedings by respecting fair trial rights), procedural rights for victims are typically developed with an eye on participation and prevention of secondary victimisation, and they have a more ‘relational’ purpose of meeting victims’ needs to be heard, acknowledged and respected. These different perspectives on procedural justice have resulted in the creation of different types of rights. In this paper, (the rationale of) several regional victim and defendant rights instruments are compared with four ‘principles’ stemming from the social–psychological theory of procedural justice. This theory relates to the question of whether participants perceive procedures as fair, and ideally all four principles are adequately represented in the legal frameworks pertaining to victims and defendants. The comparison, however, reveals that fair trial rights for defendants pay insufficient attention to the ‘respect’ principle, while victim rights frameworks are underserving the dimensions of ‘voice’, ‘neutrality’ and ‘case processing time’. Concrete examples are provided of where defendants could potentially benefit from ‘archetypical’ victim rights and vice versa to address this lacuna.
Introduction
Legal instruments containing victims and defendants’ rights are typically based on ideas pertaining to ‘fair procedure’ or ‘procedural justice’. However, the notion of ‘procedural justice’ differs if you compare victims’ instruments to those of defendants. For although the importance of the fairness of procedures has been widely acknowledged in criminal law for both victims and defendants, the legal frameworks regulating fair proceedings for victims have a different primary aim than the ones for defendants.
In the case of defendants, procedural justice considerations have led to the creation of procedural rules and human rights, most notably the fair trial rights in Article (Art.) 6 of the European Convention on Human Rights (ECHR). 1 On the level of the European Union (EU), some of these fair trial rights have recently been codified into dedicated Directives, with minimum standards that sometimes exceed what the EC(t)HR prescribes. 2 Although these rights pertain to the fairness of criminal procedure, the ultimate aim of most rights contained in Art. 6 ECHR and the EU ‘fair trial’ Directives is typically to guarantee substantive accuracy or a fair outcome of the criminal trial. In this conceptualisation of procedural justice, respecting fair trial rights ultimately has a more ‘instrumental’ or distributive aim, and guaranteeing fair criminal procedure is mainly perceived as a means to an end, namely, ensuring that substantive criminal law is only applied to the guilty, while the innocent are left in peace (Corstens et al., 2021: 9). Great emphasis is placed on the importance of objective and impartial factfinding, and fair trial rights have mainly been developed in order to ensure that the criminal procedure eventually results in the objective establishment of the truth.
This is different in the context of victims involved in criminal proceedings. Dedicated victim rights instruments are typically developed with the particular aim to ensure that victims can participate in criminal proceedings, and are protected from secondary victimisation resulting from their participation (e.g. Art. 1 EU Victim Rights Directive, hereafter: VRD). 3 Although some victim rights can have an impact on the outcome of criminal proceedings as well – for instance, the right to have a decision to abstain from prosecution reviewed – for most victim rights, this substantive impact is typically limited. Usually, the emphasis of procedural justice in the context of victims firmly lies on more ‘relational’ purposes, such as meeting victims’ needs to be heard, acknowledged and respected by the criminal justice or wider community. In this context, victims’ rights typically aim to foster victims’ well-being during criminal procedure, and are perceived as an end in and of themselves, regardless of their impact on the outcome of the case.
It is interesting to see to what extent fair trial rights and victims’ rights line up with defendants’ and victims’ perceptions of procedural justice. This latter concept relates to the social-–psychological idea of procedural justice. Social–psychological theories revolving around procedural justice can also be divided into ‘instrumental’ theories (participants value fair procedures, because it will lead to a fair outcome) and theories that are more ‘relational’ (participants value fair procedures, independent of their effect on the outcome). Procedural justice literature furthermore distinguishes four key ‘principles’ under which important factors or determinants are categorised that are linked to participants’ perceptions of procedural justice: voice, neutrality, respect and trust. These principles consist of the elements of a procedure that empirical studies have associated with participants’ subjective assessment of procedures as fair.
In this contribution, I will demonstrate that while defence rights were typically introduced and further developed with an eye on fostering the instrumental notion of procedural justice, victim rights were mainly driven by ideas pertaining to relational theories of procedural justice. Unsurprisingly, these different aims and perspectives on procedural justice have resulted in the creation of different rights. While the instrumental take on defendants’ procedural fairness has led to rights with a strong agentic character and a focus on the prevention of human rights violations, the relational emphasis associated with victim rights, for instance, formed the basis for ‘vulnerable victims’ and respectful treatment rights. Victim rights of a more instrumental nature – such as participation or review rights – are controversial, are limited to victims with a certain status or are rejected altogether, whereas in the case of defendants, relational rights that aim to guarantee respectful treatment and prevent collateral harm from participation in criminal proceedings (not reaching the threshold of a human rights violation) have largely been ignored. A negative consequence of these one-sided perspectives is that some of the social–psychological procedural justice principles are insufficiently covered for victims and defendants.
To substantiate this, I will first describe the ratio and elements of the four principles of procedural justice theory and explain why – for the benefit of this article – I will replace the ‘trust’ principle with the principle of ‘case processing time’. I will then juxtapose this socio-psychological (empirical) framework to the ratio and elements of fair trial rights for defendants. We will see that while some principles of procedural justice are sufficiently guaranteed in Art. 6 ECHR and the EU ‘fair trial’ Directives, the ‘respect’ principle remains largely overlooked. This is markedly different when victim rights are concerned: having a more relational goal, victim rights typically accentuate the ‘respect’ principle, but fall short on determinants related to the principles of ‘voice’, ‘neutrality’ and ‘case processing time’. Since, ideally, all four principles of procedural justice should at least be considered in designing procedural rights for victims and defendants, I will give concrete examples of where defendants could potentially benefit from ‘archetypical’ victim rights and vice versa. The paper will finish with some concluding remarks.
Procedural justice theory
The rationale underpinning procedural justice theory
The fairness of procedures plays an important role in the domains of social psychology and law. In both disciplines it is recognised that, in addition to a fair outcome (distributive justice), the way in which this outcome was achieved procedurally (procedural justice) is also important.
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Social-–psychological research has linked perceptions of procedural justice to persons’ well-being, their acceptance of decisions, and perceptions of legitimacy of and trust in government agencies. Van de Graaf (2021) describes the social–psychological notion of procedural justice as follows: Procedural justice refers to ‘the judgments about the fairness of procedures used to make decisions’. Thus, what is used as the basis for understanding what constitutes a fair procedure are persons’ subjective perceptions. Sometimes, the term ‘perceived procedural justice’ is used to emphasise this aspect. Procedural justice research includes both research that aims to uncover whether and how individuals are affected by fair procedure, as well as studies that want to expose which elements of a procedure lead to persons assessing it as fair.
Based on the goals that individuals involved in legal procedures pursue, two important procedural justice theories can be distinguished. First, there are theorists who mainly conceive procedural justice as ‘instrumental’, meaning that individuals value procedural justice because in their perception, a fair procedure is more likely to lead to a fair outcome. For example, Thibaut and Walker (1978) argued that participants value process control as an instrument to obtain a desired outcome (‘justice’). In various publications, the right to make a Victim Impact Statement (VIS) has also been perceived in this way, with emphasis on the possible influence that exercising these rights could have on the final outcome of a case, including punishment (for examples, see Pemberton et al., 2017).
Second, there is the more ‘relational’ or ‘normative’ approach, which refers to the characteristics of the relationship between the decision-makers, such as the police or other judicial authority, and the parties involved (e.g. Tyler, 2006; Tyler and Lind, 1992; Wemmers, 1996). They argue that a fair procedure also has an independent value, apart from its effect on the outcome. Evidence for this theory can, for instance, be found in the fact that persons involved also value measures for the benefit of procedural fairness, when a substantive decision has already been made (Lind et al., 1990; Van den Bosch, 2007). 5 A fair procedure shows people that they are worthy of being heard and respected by authorities, but also by society at large: they receive a form of ‘status recognition’ as respected group members (Brems and Lavrijsen, 2013; Tyler and Lind, 1992).
These two theories in particular will be central to the current contribution, because they have gained most traction in social–psychological literature, and also seem to represent the two main motives of the Council of Europe and EU legislator for developing fair trial and victim rights.
Principles and elements of procedural justice theory
The seminal studies undertaken by Tyler and Lind from the late 1980s onwards laid the foundations for the model of procedural justice that still largely holds true today (De Mesmaecker, 2014: 13). Variations to this model were proposed, but even to date, more or less the same four key principles are used in the procedural justice literature: voice, neutrality, respect and trust (Tyler, 2008; Brems and Lavrijsen, 2013).
The ‘voice’ or ‘participation’ criterion requires that people must be offered an opportunity to share, in their own words, their story and opinion on the procedure and its outcome, before decisions are made (Brems and Lavrijsen, 2013; Tyler, 2008). Procedures allowing persons such forms of ‘formal participation’ are valued as fairer, regardless of the outcome, as long as participants feel that their views are seriously considered by the authorities.
‘Neutrality’ stands for the independence and impartiality of the decision-maker, the perception that decisions are based on facts rather than prejudice and the need for equal treatment of parties (Brems and Lavrijsen, 2013; Tyler, 2008; Van de Graaf, 2021). Procedures furthermore need to be relatively consistent over time, persons and cases (Tyler, 2008), both on a procedural and distributive level (Van de Graaf, 2021). An important factor that can contribute to positive perceptions on neutrality is transparency and openness regarding the manner in which rules were applied and decisions came about, for instance, through well-reasoned motivations (Tyler, 2008). The elements of (substantive) accuracy and correctability have also been placed under the heading of ‘neutrality’: CJS authorities ought to base their decisions on correct information and facts, and there should be opportunities to challenge and remedy incorrect decisions (Brems and Lavrijsen, 2013).
The ‘respect’ or ‘standing’ determinant requires that legal authorities not only need to respect parties’ (procedural) rights, but that they also need to treat parties in a polite manner, with respect for their dignity, and that parties and their concerns are taken seriously (De Mesmaecker, 2014: 13; Tyler, 2008). It reflects that merely treating parties in accordance with procedural rules is insufficient: authorities also need to take ‘interpersonal justice’ into account. As representatives of the state, respectful treatment by legal authorities and respect for their rights, conveys an important message of value and status recognition to the parties involved.
‘Trust’, is another central tenet in procedural justice theory and it relates to ‘an assessment of the character of the decision maker’ (Tyler, 2008). According to Tyler, the two key determinants in this assessment revolve around ‘sincerity and caring’. Individuals need to feel that authorities are genuine in their concern for their needs and rights, and that ‘they can trust the decision-maker to act in good faith’ (De Mesmaecker, 2014; Tyler and Lind, 1992: 11). Wemmers (1996), however, did not find evidence for justifying ‘trust’ as a separate factor in her empirical study. Also, while fair trial and victim rights instruments inter alia aim to increase trust in criminal justice authorities, this is not done with the help of the introduction of a ‘right to trust’, but through the implementation of other procedural rules and rights 6 that – hopefully – will result in increased trust. Since this makes it complex to ‘translate’ trust into dedicated and independent rights, this principle will not feature in the remainder of this contribution.
Instead, another principle will be added to the analytical framework, namely, ‘case processing time’. The idea of including time as a separate principle to the four traditional principles is not new; some procedural justice theorists had already proposed this previously (e.g. Valkeapää and Seppälä, 2014). They claim that ‘in contemporary society . . . time has evolved as an asset’. Research has not only established the negative impact of prolonged proceedings on parties’ well-being in civil litigation (Clemente and Padilla-Racero, 2000; Shuman, 2000), but also in the context of prolonged pre-trial detention for defendants, and has associated delays in in criminal proceedings with psychological harm for victims (Burman and Brooks-Hay, 2020; Murray et al., 2025). Since the speed with which cases are processed form an important concern for victims and defendants alike, this aspect will form part of the comparison in the next few sections as well.
This means that a total of four procedural justice principles (‘voice’, ‘neutrality’, ‘respect’, ‘case processing time’) will be compared with the legal frameworks regulating fair trial and victims’ rights in order to assess the extent to which these four principles are reflected in the said legal frameworks.
Fair trial principles for defendants (Art. 6 ECHR and EU ‘fair trial’ Directives)
The ‘instrumental’ rationale underpinning fair trial rights
As mentioned in the first section, the underlying rationale of most rights contained in Art. 6 ECHR and the EU ‘fair trial’ Directives is typically to guarantee substantive accuracy or a fair outcome of the criminal trial. Many procedural guarantees aim to reduce the risk of inaccurate substantive decisions. Although substantive accuracy is not a feature of Art. 6 ECHR itself, Van de Graaf (2021) considers it ‘an aim that underlies other procedural guarantees’. And it is true that in criminal law systems, the right to a fair trial is closely linked to the ultimate objective of uncovering the truth through the criminal process (Momsen and Willumat, 2024). In the adversarial system, the truth is thought to ‘surface’ by allowing equally empowered parties to present their opposing viewpoints before an impartial yet passive decision-maker, who carefully considers their arguments. Fair trial rights are a prerequisite through which the pursuit of truth by this partisan advocacy model is guaranteed. Although in theory the ‘archetypical’ inquisitorial justice system does not necessarily require a fair trial to discover the truth, by adopting the adversarial-inspired Art. 6 ECHR, its basic tenets now govern many inquisitorial systems as well.
This primarily ‘instrumental’ or distributive aim of Art. 6 ECHR also shines through if we look at the main objectives of the individual fair trial rights and principles codified under this article. The majority of fair trial rights and principles first and foremost aim to promote a correct judgement relating to the substantive accuracy of instigating prosecution, convicting a defendant, and imposing a penalty. This objective is, for example, central to the requirement of access to an independent and impartial tribunal, the guarantees of presumption of innocence and the specific defence rights in Art. 6(3) ECHR (De Vocht, 2025; Van Dijk and Van Hoof, 1998: 391–479). Much emphasis is placed on the importance of objective and impartial factfinding, and fair trial rights have been developed in order to ensure that the criminal procedure eventually results in the establishment of the truth.
Of course, some rights contained in Art. 6 ECHR have a different ratio legis and are primarily concerned with protection of the human dignity and well-being of defendants. The reasonable time requirement, for instance, mainly serves to ensure that defendants do not suffer unreasonably long from the Damocles sword of pending criminal proceedings and all the insecurity, inconvenience and anxiety such proceedings can bring about (Van Dijk and Van Hoof, 1998: 442).
Elements of fair trial in relation to procedural justice principles
If we look at the individual rights and principles contained in Art. 6 ECHR and the EU ‘fair trial’ Directives and compare them to the key principles identified in procedural justice theory (see above), an interesting picture emerges. 7
The procedural justice principle of ‘neutrality’ is, for instance, reflected in the fact that judicial independence and impartiality is also an essential element of criminal proceedings (Art. 6(1) ECHR). Criminal judges are expected to refrain from expressions of personal prejudice regarding the subject matter of the criminal case or the parties involved (subjective impartiality), but also to avoid the mere appearance of bias (objective impartiality). Criminal judgements furthermore need to be substantiated with well-reasoned motivations, and defendants in criminal proceedings typically are given the opportunity to challenge or otherwise remedy incorrect decisions, both in terms of procedure and outcome. Article 2 of Protocol No. 7 to the ECHR, for instance, recognises a right to appeal to a higher tribunal in reaction to a conviction imposed in first instance and the EU ‘fair trial’ Directives also stipulate that ‘suspects and accused persons have an effective remedy if their rights under this Directive are breached’ (e.g. Art. 10(1) of the EU Directive on presumption of innocence).
The ‘voice’ or ‘participation’ criterion also coincides with the fair trial elements. Van de Graaf (2021) links it to the fair trial elements of a ‘fair and public hearing’ (Art. 6(1) ECHR), and the right to a well-reasoned decision in which the main arguments by parties are reflected, but in the criminal law context, it could additionally be associated with the right to defend oneself in person or through (free) legal assistance, and with the right to examine witnesses (Arts. 6(3)(c) and 6(3)(d) ECHR).
The ‘case processing time’ principle is literally expressed in Art. 6(1) ECHR which details everyone’s entitlement ‘to a fair and public hearing within reasonable time’ and there is ample ECtHR jurisprudence involving cases in which the duration of criminal proceedings was considered too long.
More problematic, however, is the ‘respect’ or ‘standing’ principle. Although respectful treatment is not explicitly mentioned in Art. 6 ECHR, some authors consider this an essential principle of fair trial nonetheless (e.g. Settem, 2016: 119). In the context of criminal proceedings, ECtHR cases revolving around violations of human dignity have, for instance, been associated with respectful treatment, but overall reference to the human dignity or respectful treatment aspect of a fair trial is ‘quite scarce’ (Van de Graaf, 2021). While Arts. 3 (prohibition of torture and inhuman or degrading treatment), 5 (right to liberty and security) and 8 (right to respect for private and family life) ECHR also need to be respected by criminal justice authorities – even if their violation does not impact the outcome of the procedure – and while these provisions can be helpful in preventing the blatant maltreatment and inhuman treatment of defendants during criminal proceedings, the fact that they only relate to (serious) human rights violations poses a high threshold for intervention and does not take into account the numerous other factors that can influence defendants’ (perceptions of) respectful treatment. There is a large gap between inhuman treatment and respectful treatment, and the absence of one does not automatically imply the presence of the other. Even if fair trial and other human rights are respected, defendants can still be harmed by criminal justice actors as a result of disrespectful treatment. For defendants, participation in criminal proceedings can be an impactful, sometimes even traumatic, experience as well, with potentially far-reaching consequences for their confidence in public institutions and later reintegration into society, yet these risks are less central to Art. 6 ECHR and the EU ‘fair trial’ Directives. There is, however, empirical evidence that defendants also value this more holistic take on respectful treatment (e.g. Ansems et al., 2020).
Victim rights principles (EU victim rights directive)
The ‘relational’ rationale underpinning victim rights instruments
If we now turn to the conceptualizations of victims’ rights and procedural justice pertaining to victims, we will see that these are significantly different from those relating to defendants. The emergence of victim rights was primarily driven by the emancipation of victims around the 1980s, and the dissatisfaction with the way victims were treated within the criminal justice process. The coming into force of important international and regional victim rights instruments, such as the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (1985) and Recommendation (85) 11 of the Council of Europe on the Position of the Victim in the Framework of Criminal Law and Procedure, intended to change this. Since then, more regional and international victim rights instruments have seen the light, but because the 2012 EU Victim Rights Directive (VRD) represents the most elaborate, recent and binding horizontal instrument on this level to date, this instrument was selected for further evaluation.
The objective of the VRD is explicitly formulated in Art. 1(1): The purpose of this Directive is to ensure that victims of crime receive appropriate information, support and protection and are able to participate in criminal proceedings. Member States shall ensure that victims are recognised and treated in a respectful, sensitive, tailored, professional and non-discriminatory manner, in all contacts with victim support or restorative justice services or a competent authority, operating within the context of criminal proceedings.
The preamble (§ 9) adds that: Victims of crime should be protected from secondary and repeat victimisation, from intimidation and from retaliation, should receive appropriate support to facilitate their recovery and should be provided with sufficient access to justice.
Both instrumental and relational aims are expressed in these goals. The mention of participation and access to justice suggests that the VRD is not only concerned with the procedure as an independent value (apart from its effect on the outcome), but also with allowing victims to have an impact on the outcome itself (through the establishment of procedural rights). However, when we consider the VRD more carefully, the relational objectives seem to prevail in the sense that specific rights associated with relational objectives feature more frequently and are provided more freely and in detail, whereas the individual provisions conveying a more instrumental ratio are typically restricted in their application to certain situations, limited or ‘vague’, leaving more discretionary power to the Member States. This is, for instance, evidenced by preamble §20, where the Directive acknowledges that the role of victims in national criminal justice systems, and whether victims can actively participate, varies across the Member States. The Member States are allowed to limit the scope of the rights set out in the Directive where there is reference to the role of the victims. In other words, access to certain rights can be made contingent on the role of the victim in national criminal justice systems. So while more relational rights to information, respectful treatment and specific provisions for vulnerable victims are readily provided to a wide range of victims, more instrumental rights can be limited to a subset of victims with a certain (traditional) role in national criminal justice systems, such as witness, claimant or civil party. Arguably, this makes the rationale of the VRD predominantly ‘relational’.
Elements of victim rights in relation to procedural justice principles
This predominantly relational take on procedural justice also impacts the extent to which the four procedural justice principles are reflected in the VRD.
Starting with ‘voice’ and ‘participation’, already a lacuna surfaces. Although the VRD contains certain participatory rights that (also) foster instrumental goals – such as the right to be heard (Art. 10), the right to review a decision not to prosecute (Art. 11), the right to legal aid (Art. 13) and the right to a decision on compensation from the offender in the course of criminal proceedings (Art. 16) – these rights are typically restricted to the victims’ ‘role in the relevant criminal justice system’ (Art. 11), their ‘status of parties to criminal proceedings’ (Art. 13) or they can easily be circumvented. This latter is, for instance, the case in the right to a decision on compensation from the offender in the course of criminal proceedings, where the VRD easily allows for an exception ‘where national law provides for such a decision to be made in other legal proceedings’.
The right to be heard is equally ‘circumspect’: while Art. 10 obliges Member States to ‘ensure that victims may be heard during criminal proceedings and may provide evidence’ – the non-specific redaction of this provision provides leeway for different interpretations. It allows for a victim-centred interpretation if Member States take this provision as an incentive to, for instance, provide victims with the right to add evidence to the case file or to make a VIS if they wish. However, if Member States consider this provision transposed by obliging victims to provide witness testimony, it mainly services law enforcement motives, rather than victims’ needs. In other words, Art. 10 provides no guarantee that victims are actually provided an opportunity to ‘voice their opinion’ in a decision-making process in a manner consistent with the ‘voice’ principle. This is in stark contrast with, for instance, the right to make a VIS, which is specifically meant to allow victims a venue to be heard and acknowledged as victims (not only witnesses) during the most important phase of criminal proceedings. This latter right can be firmly placed at the centre of ‘voice’ ambitions, but it is highly controversial in the sense that many national legislators have abstained from introducing a VIS due to concerns about a violation of the right to innocence, making the criminal trial more emotional and unwanted influence on sentencing (Pemberton and Reynaers, 2011). It is for this reason that the VRD has not included an obligation to introduce the right to make a VIS; and that jurisdictions that have introduced this right go through great lengths to ensure that the VIS cannot influence the court’s decision on the guilt of the defendant – in countries that do not have bifurcated trials – or impact the sentence.
Also the principle of ‘neutrality’ has been largely overlooked. To begin with, references to (elements related to) neutrality are rare in the VRD. Decisions relating to rights in the context of case-specific information, interpretation, translation and the right to be accompanied by a legal representative and a person of their choice during criminal investigations should be explained by providing the reasons for such decisions (Art. 6(3), Art. 7(3), Art. 20(c) VRD). Of course, this helps provide some transparency, albeit that much will depend on the extent to which decisions are motivated in practice. 8 Any other form of subjective or objective bias on the side of the decision-maker towards victims, however, remains unchecked even though these types of bias can also negatively influence the outcome of a case. The elements of (substantive) accuracy and correctability are also notoriously underserved. Most victims’ rights are, for instance, not strengthened with the help of a remedy, which seriously hampers their effectiveness and will be further discussed below.
‘Respect’, on the contrary, stands out as a procedural justice principle that is duly considered in the VRD. Not only does the respectful treatment of victims feature prominently in Art. 1 of the VRD, but throughout the instrument references are made to the respectful, dignified and sensitive treatment of (vulnerable) victims and the importance of such treatment in the prevention of secondary victimisation. The VRD demonstrates acute awareness of the risks involved in victim participation in criminal proceedings, and prescribes clear measures to reduce these risks, such as the introduction of an Individual Assessment (Art. 22 VRD). Empirical research shows that victims value respectful treatment greatly. The Dutch ‘Victim Monitor’, for instance, indicated that victims attach greater value to respectful treatment by the police, than they do to other aspects at that stage, such as ‘intake’ or ‘participation’ (Andringa et al., 2023: 11).
The ‘case processing time’, finally, is another neglected procedural justice principle in the VRD. Admittedly, some references are made to the speed with which criminal procedures progress. When the VRD stipulates that (vulnerable) victims are offered information, are returned their property and are interviewed after their complaint without ‘unnecessary’ or ‘unjustified delay’, it demonstrates awareness that time can be of essence to victims as well (Arts. 4(1), 6(1)(2), 11(3), 15, 20(a) VRD). Another example is the right to obtain a decision on compensation by the offender in the course of criminal proceedings ‘within a reasonable time’ (Art. 16(1) VRD). Nonetheless, an overarching ‘reasonable time’ entitlement such as the one expressed in Art. 6(1) ECHR – assessing the speed of the criminal proceedings in their entirety – is lacking. 9 There is, however, evidence suggesting that victims also consider case processing time an important procedural need (De Mesmaecker, 2014), and many authors and organisations refer to the potentially damaging impact of lengthy procedures on victims, for instance, in the context of international criminal law cases (e.g. FIDH, 2013: 11).
Before concluding this paragraph, it is important to note that the rights of Art. 6(1) ECHR, also apply to certain victims. Under the civil limb of this article (‘in the determination of his civil rights and obligations’), victims who are a civil party in criminal proceedings are also granted ‘a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. It is important to realise, however, that this only applies to victims who joined proceedings as a civil party; that states have ‘greater latitude when dealing with civil cases concerning civil rights and obligations than they have when dealing with criminal cases’; and that the civil party is ‘not involved in the criminal aspect of the proceedings but the civil aspect’. 10 These are significant restrictions for the usefulness of Art. 6(1) ECHR rights to help guarantee the fulfilment of procedural justice needs of victims involved in criminal proceedings.
In Table 1 the information from paragraphs 3 and 4 – on the manner in which fair trial and victim rights relate to procedural justice elements – is summarised.
Procedural justice elements versus fair trial and victim rights.
Mutual consideration of victim and fair trial rights
As demonstrated above, the different aims of fair trial rights for defendants versus victim rights leads to notable differences regarding the extent to which the four procedural justice principles are acknowledged and embedded in the different legal frameworks. For defendants, gaps were identified in terms of the ‘respect’ dimension, whereas victims’ need for ‘voice’, ‘neutrality’ and ‘case processing time’ were underserved. In the light of empirical evidence suggesting that these procedural justice principles all have an impact on how victims and defendants perceive the fairness of criminal proceedings, it is interesting to compare specific rights for victims and defendants, and juxtapose their rationale to the ‘gaps’ in procedural justice protection identified in the previous paragraph. So, the idea is to give concrete examples of where certain rights that are now exclusively reserved for victims could be useful for defendants and vice versa.
Victim rights that could be useful for defendants
In the VRD, there are many specific rights that aim to increase the respectful treatment of victims and thereby reduce the risk of secondary victimisation. This is, for instance, true for the option of virtual or remote participation to the proceedings, such as online hearings, and for the individual assessment of victims with specific protection needs. If we wish to enforce the ‘respect’ element for defendants, introduction of similar rights for defendants could be considered.
In the context of victim rights, remote participation is seen as a means to make the participation of victims in criminal proceedings less burdensome or harmful. This positive reception of remote justice for victims can, for instance, be evidenced by the ever expanding possibilities to apply communication technology in EU victim instruments: from the use of video and telephone conferencing for the purpose of hearing cross-border victims in the (2001) EU Framework Decision on the Standing of Victims in Criminal Proceedings (Art. 11); via the VRD’s extended options to use communication technology in contacts with an interpreter/translator or for vulnerable victims to testify in court (Arts. 7(2), 23(3)(a)(b)); to the European Commission’s recent (2023) proposal to facilitate online reporting and granting online access to victims’ case files (proposed Arts. 5a(1) and 26b). All of these measures were introduced primarily with victims’ interest in mind: allowing online hearing of cross-border victims would prevent them from having to travel back to the country where the crime took place; online testimony in court would protect vulnerable victims of being (directly) confronted with the defendant; and online reporting or access to the case file would prevent victims from having to travel back and forth to criminal justice premises. 11 These remote options for victim participation have not yet led to empirical study, nor critical academic debate, at least not from a victimological perspective.
In comparison, the use of remote participation for defendants is much more controversial. Although proponents highlight the advantages of online hearings – most notably in terms of efficiency gains and cost-reduction – many authors point to the potentially negative impact that the use of videoconferencing could have on fair trial rights of defendants (see the discussion in Peristeridou and De Vocht, 2023). As Peristeridou and De Vocht (2023) state: While the financial and practical advantages of remote criminal justice may seem obvious, the million-dollar question is whether the online hearings can respect the rights of the defence and other procedural rights. In other words: are remote criminal trials fair?
Unsurprisingly, most authors assess remote participation using the traditional notions of ‘fair trial’ as laid down in Art. 6 ECHR as their conceptual framework and typically conclude that online trials are either unfair, or – at the very least – have to be used as a measure of last resort and in accordance with special guarantees and conditions. The controversy even led to a request for a preliminary ruling by the EU Court of Justice on the compatibility of the possibility for an accused person to participate in the hearings in their trial by videoconference and the right to be present at the trial as laid down in Art. 8(1) of Directive (EU) 2016/343. 12 In its judgement of 4 July 2024, the Court decided that Art. 8(1) does not preclude ‘an accused person from being able, at his or her express request, to participate in the hearings in his or her trial by videoconference, provided that the right to a fair trial is guaranteed’ (no. 32). While this ruling may have put a halt to the most pressing concerns regarding the (in)compatibility of remote justice with the right to be present, criminal law theorists remain critical, in particular when the application of remote participation in practice is concerned (e.g. the European Bar Association in Ramos et al., 2021).
So while remote justice is often seen as a ‘necessary evil’ from a defendant’s point of view, it is much less contentious from a victimological and a respectful treatment perspective. For defendants, it is nonetheless interesting to explore how – within the confines of Art. 6 ECHR – remote justice can be further developed as well, possibly even resulting in a ‘right to be present online’ (Klip, 2024). In the Netherlands, the first steps in this respect will be taken in the near future, when defendants can, inter alia, also request the court to be heard online (proposed Art. 1.11.3 of the new Wetboek van Strafvordering).
A second example of where ‘respectful treatment’ rights might be beneficial to defendants too, relates to special protection measures for vulnerable victims. Article 22 VRD obliges Member States to make an ‘individual assessment’ of victims from their first contact with the police, to identify specific protection needs and to determine whether and to what extent they would benefit from special measures in the course of criminal proceedings . . . due to their particular vulnerability to secondary and repeat victimisation, to intimidation and to retaliation.
One of these special measures concerns the right of vulnerable victims to be interviewed ‘by the same persons unless this is contrary to the good administration of justice’ (Art. 23(2)(c) VRD). In addition, victims of sexual violence, gender-based violence or violence in close relationships have the right to be interviewed by a person of the same sex as the victim (Art. 23(2)(d) VRD). The exact rationale behind these specific protection measures remains a matter of conjecture: neither the Victim Directive, nor its accompanying Guidance Document (DG Justice, 2013) provide an explanation as to why these protective measures were included as minimum standards (and not others). However, there is empirical evidence that these measures can indeed help prevent negative experiences of vulnerable victims as a result of their participation in the criminal process. We know, for instance, that victims of stalking find it unpleasant having to tell their story again and again to different police officers (Van der Aa, 2010: 146). Research has furthermore shown that both male and female victims of sexual violence feel more comfortable with being interviewed by a female police officer (Jordan, 2002).
Comparable measures in the context of interviewing (vulnerable) suspects are not codified in binding regional or international legal instruments. 13 Nevertheless, it is likely that some of them also prefer to be interviewed by the same persons of a certain sex. Defendants are probably also negatively affected from being interviewed by strangers about highly private and intimate matters, such as domestic or sexual violence, in particular when the accusations are false. Trying to accommodate these needs – of course within the practical and legal limits that also apply to victims, and without compromising the good administration of justice – could contribute to a more positive perception of procedural justice and trust in the authorities involved.
Fair trial rights that could be useful for victims
In the previous paragraphs, three dimensions of procedural justice were identified where victim rights were lagging behind: ‘voice’, ‘neutrality’ and ‘case processing time’. Due to space restraints, I will now only address the shortcomings in terms of ‘neutrality’ and ‘case processing time’. Specific fair trial rights that could also be considered for victims in order to remedy the identified deficiencies in relation to these principles are the introduction of a right to remedy and a reasonable time requirement.
Starting with the right to remedy . . . a facet that was placed under the general heading of ‘neutrality’ was that of ‘correctability’. According to Brems and Lavrijsen (2013), this means procedures should provide for opportunities to challenge and remedy incorrect decisions. Despite the fact that there are many problems with the observance and realisation of victim rights in practice (European Commission, 2022), very few remedies are available for victims to challenge incorrect decisions. The VRD only provides victims a right to review a decision, not to provide interpretation or translation (Art. 7(7)), but hastens to say that ‘any consideration of a challenge of a decision not to provide interpretation or translation under this Article shall not unreasonably prolong the criminal proceedings’ (Art. 7(8)). In other words, even this one right to remedy is contingent on reasonable time considerations. The other rights under the Directive are not strengthened with any remedy at all. 14 As a result, compliance of criminal justice authorities with most victim rights cannot be enforced.
The choice not to grant remedial rights for victims stands in stark contrast with the availability of remedies for violations of fair trial rights for defendants. This latter group is granted remedies for all rights under every EU Directive concerning their fair trial rights (e.g. Art. 10(1) of EU Directive 2016/343). Fortunately, this lack of balance did not go unnoticed. On 12 July 2023, the European Commission published a proposal for the amendment of the VRD (European Commission, 2023). The aim of the proposal is to strengthen the minimum standards of the VRD, inter alia by introducing a right to judicial review of decisions taken during court proceedings that ‘directly affect victims’ (proposed Art. 10b) and an ‘effective remedy’ in the event of a breach of other victims’ rights under the VRD (proposed Art. 26d).
However, on 13 June 2024, the Council approved a text that made significant changes to both proposed provisions of the Commission (Council of the European Union, 2024). Instead of a right to review, the Council only grants victims a right to information on decisions taken during court proceedings in Art. 10b. Furthermore, Art. 26d was struck out of the Council’s text altogether. Although it remains speculative why the Council opted for this substantial weakening of the EC’s proposal, it is worthwhile to further investigate options and variations on the right to remedy for victims in order to improve their experiences of ‘neutrality’.
Finally, for inspiration to accommodate victims’ need for a reasonable case processing time, we may look at a legislative proposal that is currently pending in the Netherlands. One of the proposed changes to the Dutch Code of Criminal Procedure is to not only grant defendants a form of financial compensation in unreasonably lengthy cases, but to also provide victims who joined the criminal proceedings with their civil claim (as an ‘injured party’) a form of compensation when the proceedings exceed the reasonable time requirement (proposed Art. 4.3.12, Explanatory Memorandum, 2023: 886). In Russia, victims in criminal proceedings are also eligible for claiming compensation when the reasonable time guarantee is violated (Filatova, 2021), while in England and Wales explicit attention is paid to the importance of case processing times for victims in practice guidelines, for instance, in the England and Wales Criminal Practice Directions 2023. 15
Conclusion
In this paper, regional legal frameworks involving victim and fair trial rights were compared with four principles of procedural justice theory. By contrasting the rationale of Art. 6 ECHR, EU ‘fair trial’ Directives and the VRD to social–psychological procedural justice theory, it was shown that the criminal justice system has traditionally placed more emphasis on instrumental goals in the case of defendants, and more on the relational aspect when victims are concerned. The different aims of the two legal frameworks have led to variations in the extent to which certain procedural justice principles are guaranteed, with fair trial rights highlighting the procedural justice dimensions of ‘voice’, ‘neutrality’ and ‘case processing time’, and the VRD emphasising the ‘respect principle. The resulting lacunae form a mirror image: with defendants being deprived of explicit ‘respectful treatment’ rights, and victims lacking sufficient access to neutrality, voice and case processing time guarantees.
This gap in covering the full range of procedural justice dimensions of defendants and victims is concerning. Feelings of procedural justice have been associated with increased well-being, acceptance of decisions, future behavioural compliance with the law, trust in authorities of parties involved in legal proceedings and a positive impact on the recovery of crime victims (e.g. Ansems et al., 2020; Elliott et al., 2014; Van de Graaf, 2021). Negative experiences in this area, on the contrary, can lead to (secondary) victimisation, which can in turn hinder recovery and reintegration (e.g. Parsons and Bergin, 2010). There is no reason to assume that victims are different from defendants in this regard, or that the underlying (social) psychological mechanisms vary significantly between these two groups. On the contrary, there is empirical evidence that defendants also have procedural needs and expectations, particularly in the area of respectful treatment (e.g. Ansems et al., 2020).
Assuming that all procedural principles contribute to feelings of procedural justice for defendants and victims alike, the procedural justice framework potentially provides an interesting agenda for future research and legislation. Dimensions where victim and defendants’ procedural needs are underserved could profit from closer legislative attention, possibly drawing inspiration from the mutual application of existing fair trial and victim rights. In this contribution several examples of concrete rights have been suggested that, once applied to both groups, could lead to improvements, but of course there are more rights and measures that – possibly in an altered way, shape or form – could be considered useful for mutual application. For instance, the transposition of the Méndez Principles (2021) into the legal frameworks of different jurisdictions would be a great start to guarantee a more respectful treatment of defendants, since this instrument adopts a wider notion of respectful treatment than ‘merely’ respecting human rights. 16
Obviously, victim rights and insights from victimology must not be applied blindly to suspects (and vice versa), and a careful balancing of interests between procedural justice needs of participants and the good administration of justice remains vital. More empirical research on the procedural justice needs of victims and defendants, and the impact of certain rights on experiences of procedural justice, is needed, since existing studies on procedural justice in the criminal law context are still relatively scarce and their participant samples are not always representative of actual victims and defendants. Nevertheless, more is possible than we are currently offering and the more holistic perspective offered by procedural justice theory helps us identify where the legal frameworks currently (fail to) address the needs and rights of defendants and victims.
Footnotes
Funding
The author received no financial support for the research, authorship and/or publication of this article.
Declaration of conflicting interests
The author declared no potential conflicts of interest with respect to the research, authorship and/or publication of this article.