The Victim in Criminal Proceedings: Why Justice at the National Level Is So Hard to Achieve
In domestic criminal proceedings, the victim, as a rule, becomes a marginal figure. This is neither an exaggeration nor an emotional assessment, but a statement of systemic reality. Criminal proceedings are structured as a contest between the prosecution and the defence, and it is these two parties that hold the real procedural levers. The victim is formally endowed with rights, yet in practice he finds himself on the sidelines of the process: his applications go unanswered, his motions for investigative actions are ignored, and for years he cannot find out what is actually happening in the proceedings initiated in respect of the harm caused to him.
This problem manifests itself most acutely in cases where the victim’s suffering is evident: torture, beatings, road traffic accidents with fatal consequences, rape, sexual harassment, domestic violence. These are categories of cases in which physical and psychological suffering may be presumed to a degree that reaches what the case law of the European Court of Human Rights calls the minimum level of severity. It is precisely here that the State bears a positive obligation to conduct an effective investigation, and it is precisely here that this obligation is breached most often.
Practice shows that even in the most obvious cases victims run into bureaucratic resistance and procrastination. Sometimes it is deliberate and coordinated in nature: when the persons involved in causing the harm have influence over the course of the investigation, or when the investigating authority is simply not interested in the outcome. Sometimes it is the result of ordinary bureaucratic inertia, when investigators and prosecutors simply brush the victim aside like an annoying fly. The consequence in both cases is the same: for years the proceedings remain in a state that only outwardly resembles an investigation, while the limitation periods meanwhile expire.
Ukrainian criminal procedure law contains no effective mechanism that would allow the victim to break this situation on his own. The CPC of Ukraine grants him the right to challenge the inaction of the investigator and the prosecutor before the investigating judge, and this instrument does indeed work – but only when it is used systematically, consistently and with an understanding of which specific investigative actions must be demanded, in what sequence and with what reasoning. A single isolated application to the investigating judge, as a rule, changes nothing. What is needed is a carefully constructed strategy in which each ruling of the investigating judge becomes a brick in the foundation of the future case.
The foundation of what, exactly? In many cases the only real means of protecting the rights and interests of the victim is an application to the European Court of Human Rights and obtaining a judgment finding the pre-trial investigation ineffective, that is, finding a violation of the procedural limb of Article 2 or Article 3 of the Convention. The Court’s case law in respect of Ukraine in this area is well established: from Kaverzin v. Ukraine to Basenko v. Ukraine and Mikhno v. Ukraine, the Court has repeatedly found that ineffective investigation is a systemic problem of the Ukrainian law enforcement system. Each such judgment is not merely moral satisfaction, but also a ground for reopening the case at the national level and for just compensation.
However, an application to Strasbourg is no magic wand. The Court assesses not only what the State failed to investigate, but also what the victim himself did: whether he applied to the investigating judge, whether he challenged the closure of the proceedings, whether he sought specific investigative actions, whether he recorded every instance of inaction. Without a chronology of applications and refusals built up at the national level, an application to the Court risks being declared inadmissible for non-exhaustion of domestic remedies, or will simply lack an evidentiary basis. In other words, the parallel conduct of proceedings before the investigating judge and the preparation of an application to the European Court are not two different paths, but a single strategy designed to span years.
This is painstaking work. It requires knowledge not only of the CPC of Ukraine, but also of the Court’s case law on what precisely constitutes an effective investigation, which time limits are reasonable, which investigative actions are mandatory in cases of torture or death, and how to ensure that the State’s inaction is recorded in documentary form rather than remaining in the format of oral complaints and telephone calls to the investigator. A victim who tries to walk this path alone almost inevitably makes mistakes that later cannot be corrected: he misses deadlines, fails to challenge key decisions, fails to secure a documentary trail, or, conversely, spends years appealing to bodies that have no influence whatsoever over the course of the investigation.
Protecting the rights of the victim is hard work, and both its beginning and its outcome depend first and foremost on the will of the victim himself to travel the often long road towards restoring justice, reinstating his rights and ensuring the effectiveness of the investigation. But the victim’s will must be backed by professional support, because the system he will have to deal with, as a general rule, does not work in his favour. On the side of the State stand investigators, prosecutors, departmental interests and years of procedural inertia. A victim who sets out on this path alone almost always loses – not because he is wrong, but because he does not know the rules of the game by which the other side plays.
Justice at the national level is very hard to achieve. But it is possible, if from the very outset one understands that every step taken before the investigating judge is made with Strasbourg in view, and that every document obtained today will become evidence of the State’s violation of the Convention tomorrow. Violations of the right to life and of the prohibition of torture, which the State commits far too often, must not remain without consequences merely because the victim did not know where to begin.
