15th edition of the THEMIS Competition

Semi-final A

EU and European Criminal Procedure

Assistant Prosecutor Eliis Soomlais

Assistant Prosecutor Sandra Kurs

Assistant Prosecutor Laura Jõgisoo

Victim’s rights in the light of domestic violence and avoiding

secondary victimization

Tutor

Senior Prosecutor Katrin Paesoo

Estonia

2020

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Introduction

Assistant Prosecutors Eliis Soomlais, Sandra Kurs and Laura Jõgisoo deal with domestic

violence and its outcomes on everyday basis. This is one of the reasons why this research

focuses on violence against women in domestic relationships as well as the importance and

adequacy of this topic in society in general.

Convention of Preventing and Combating Violence against Women and Domestic Violence

offers a definition for domestic violence – all acts of physical, sexual, psychological or

economic violence that occur within the family or domestic unit, irrespective of biological or

legal family ties, or between former or current spouses or partners, whether or not the

perpetrator shares or has shared the same residence as the victim.1

A 2014 report based on interviews with 42 000 women across the 28 Member States of

European Union shows that one in three women (33%) has experienced physical and/or sexual

violence since she was 15 years old. One in three women (32%) has experienced

psychologically abusive behaviour by an intimate partner, either by her current partner or a

previous partner. The FRA made some general considerations on the gathered date and one of

them being that EU Member States are encouraged to develop specific national action plans on

violence against women.2

In Estonia we have reached the point where society speaks more about domestic violence and

people are educated on how to notice a person suffering from domestic violence. For example,

Estonian Police and Border Guard Board had a campaign in 2014 “I am brave enough to

intervene” that encouraged people to call 112 when noticing domestic violence.3 Also, third

parties - neighbors, relatives and children - are increasingly reporting to the police about

domestic violence. That is extremely important since it is breaking the stereotypical

understanding about domestic violence as something that is private family matter which was

very common understanding during soviet time.

1 Convention of Preventing and Combating Violence against Women and Domestic Violence. Council of

Europe Treaty series – No. 210. Istanbul, 11.05.2011. Online: https://rm.coe.int/168008482e 2 Violence against women: an EU-wide survey, results at a glance. FRA European Union Agency for

fundamental rights, 2014. Online: https://fra.europa.eu/sites/default/files/fra-2014-vaw-survey-at-a-glance-

oct14_en.pdf 3 Campaign „Aga mina julgen sekkuda“. Online: https://agamina.ee/kampaania/ppa.html

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We see that every year more victims are prepared to turn to the police because of the increased

knowledge. Public authorities work on a daily basis to increase confidence and trust, so that

victims have the courage to turn to public authorities and that victims would have hope and

certainty that they will receive the help they need. Institution are also trying to find out ways

to spare the victims of redundant emotional distress during criminal proceedings. But the work

is far from over. Every day lies new challenges to help domestic violence victims. For example,

due to COVID-19, member states had to start thinking about helping the victims of domestic

violence when the victims had no opportunity to leave their home. We also have to bear in

mind that many domestic violence cases are still not reported and violence continues to be

hidden between the home walls and the victim blaming4, especially in violence against women

cases, is still a major issue.

The purpose of this paper is to examine the measures of European Union on combating

domestic violence. The paper gives an overview on theory of secondary victimization and legal

framework for avoiding it, also focuses more on Istanbul Convention and The Victims’ Right

Directive. The paper also introduces Estonian practices and solutions on fighting against

secondary victimization in domestic violence as an example. In this paper we also focus on

case law of European Court of Human Rights and analyze the conflict between victims’ rights

and the right to a fair trial according to Article 6 of European Convention.

4 Victim blaming occurs when the victim of a crime or any wrongful act is held entirely or partially at fault for

the harm that befell them. The study of victimology seeks to mitigate the prejudice against victims, and the

perception that victims are in any way responsible for the actions of offenders.

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1. Secondary victimization

To be subjected to secondary victimization, a person has to be a victim of crime. United Nations

Office on Drugs and Crime defines the term “victim” as follows: „persons who, individually

or collectively, have suffered harm, including physical or mental injury, emotional suffering,

economic loss or substantial impairment of their fundamental rights, through acts or omissions

that are violations of national criminal laws or internationally recognized norms relating to

human rights”.

The EU defines the term ‘victim’ as follows: ‘‘Victim’ means: (i) a natural person who has

suffered harm, including physical, mental or emotional harm or economic loss which was

directly caused by a criminal offence; (ii) family members of a person whose death was directly

caused by a criminal offence and who have suffered harm as a result of that person’s death.’5

Secondary victimization has been defined as negative social or societal reaction in consequence

of the primary victimization and is experienced as further violation of legitimate rights or

entitlements by the victim (Montada, 1994). Indeed, the criminal justice system is often

characterized as causing secondary victimization among crime victims (Fattah, 1997; Gutheil,

Bursztajn, Brodsky, and Strasburger, 2000; Koss, 2000; Symonds, 1975).6 Another definition,

used by the European Crime Prevention Network states that secondary victimization refers to

the victimization that occurs not as a direct result of the criminal act but through the response

of institutions and individuals to the victim. This includes, but is not limited to, not recognizing

and treating the victim in a respectful manner, an insensitive and unprofessional manner of

approaching the victim and discrimination of the victim in any kind.7

Besides effects on the psychological difficulties caused by the primary victimization,

secondary victimization by criminal proceedings could negatively influence other

5 European Crime Prevention Network. EUCPN Toolbox series no. 7. Preventing Secondary Victimization

policies & practices 2016 p 8 6 Social justice Research, Vol. 15, No. 4, December 2002. Secondary Victimization of Crime Victims by

Criminal Proceeding. Uli Orth. P 314. Online:

https://www.researchgate.net/publication/235912615_Secondary_Victimization_of_Crime_Victims_by_Crimin

al_Proceedings 7 European Crime Prevention Network. EUCPN Toolbox series no. 7. Preventing Secondary Victimization

policies & practices 2016 p 9

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psychological variables such as the victim’s self-esteem, faith in the future, trust in the legal

system, and faith in a just world.8

2. Legal framework for avoiding secondary victimization

2.1. Domestic violence in general

As Europe’s leading human rights organisation, the Council of Europe has undertaken a series

of initiatives to promote the protection of women against violence since the 1990s. In particular,

these initiatives have resulted in the adoption, in 2002, of the Council of Europe

Recommendation Rec (2002)5 of the Committee of Ministers to member states on the

protection of women against violence, and the running of a Europe-wide campaign, from 2006-

2008, to combat violence against women, including domestic violence.

National reports, studies and surveys revealed the magnitude of the problem in Europe. The

campaign in particular showed just how much national responses to violence against women

and domestic violence varied across Europe. The need for harmonized legal standards to ensure

that victims benefit from the same level of protection everywhere in Europe was becoming

apparent. Political will to act increased: Ministers of Justice of Council of Europe member

states began discussing the need to step up protection from domestic violence, in particular

intimate partner violence.

In December 2008, the Committee of Ministers set up an expert group mandated to prepare a

draft convention in this field. Over the course of just over two years, this group, called the

CAHVIO (Ad Hoc Committee for preventing and combating violence against women and

domestic violence), worked out a draft text. It finalized the draft of the Convention in December

2010. The Convention on preventing and combating violence against women and domestic

violence was adopted by the Council of Europe Committee of Ministers on 7 April 2011. 9

The Convention however was not the first step towards preventing and combating violence

against women and domestic violence. On 18 December 1979, the Convention on the

8 Social justice Research, Vol. 15, No. 4, December 2002. Secondary Victimization of Crime Victims by

Criminal Proceeding. Uli Orth. P 314.Online:

https://www.researchgate.net/publication/235912615_Secondary_Victimization_of_Crime_Victims_by_Crimin

al_Proceedings 9 Council of Europe. Convention on preventing and combating violence against women and domestic violence

(Istanbul Convention). Historical Background. 2014. Online: https://www.coe.int/en/web/istanbul-

convention/historical-background

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Elimination of All Forms of Discrimination against Women was adopted by the United Nations

General Assembly. Among the international human rights treaties, the Convention takes an

important place in bringing the female half of humanity into the focus of human rights

concerns. The spirit of the Convention is rooted in the goals of the United Nations: to reaffirm

faith in fundamental human rights, in the dignity and worth of the human person, in the equal

rights of men and women. The Convention spells out the meaning of equality and how it can

be achieved. In so doing, the Convention establishes not only an international bill of rights for

women, but also an agenda for action by countries to guarantee the enjoyment of those rights.10

The Council of Europe Convention on preventing and combating violence against women and

domestic violence (Istanbul Convention) is the first legally-binding instrument in Europe in

this field, and in terms of scope, the most far reaching international treaty to tackle this serious

violation of human rights. It aims at zero tolerance for such violence and is a major step forward

in making Europe and beyond a safer place. By accepting the Istanbul Convention,

governments are obliged to change their laws, introduce practical measures and allocate

resources to effectively prevent and combat violence against women and domestic violence.11

Besides direct convention on preventing and combating violence against women and domestic

violence, it is important to mention The Victims’ Right Directive 2012/29/EU that replaces the

2001 Framework decision. Its legal basis is Art. 82(2) of the Treaty on the Functioning of the

European Union (TFEU) which provides for the establishment of minimum rules to facilitate

mutual recognition of judgments and judicial decisions and police and judicial cooperation in

criminal matters, in particular with regard to victims of crime.

The directive seeks to place the victim of a crime at the center of the criminal justice system,

which has traditionally tended to focus on the defendant's rights. The directive's aim is to

strengthen the rights of victims of crime so that any victim can rely on the same level of rights,

no matter where the offence took place or their nationality. The directive is more concrete,

ambitious and wider in scope than the previous Framework Decision.12

10 United Nations human right office of the high commissioner. Convention on the Elimination of All forms of

Discrimination against Women New York, 18 December 1979. Online:

https://www.ohchr.org/en/professionalinterest/pages/cedaw.aspx 11 The Istanbul Convention and the CEDAW framework: A comparison of measures to prevent and combat

violence against women, p 1. Online: https://rm.coe.int/168059aa28 12 The Victims’ Rights Directive 2012/29/EU. European Implementation Assessment, December 2017, p 39

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The principle of victimhood adopted in the directive, namely that a victim (or their family

member) is a person who has suffered harm as a result of crime, means that the scope of victims

covered in each country depends on the national criminal law and what is considered a crime

in this context.13

2.2 The Istanbul Convention

Council of Europe Convention on preventing and combating violence against women and

domestic violence has just some provisions to avoid secondary victimization. According to

article 15 parties shall provide or strengthen appropriate training for the relevant professionals

dealing with victims or perpetrators of all acts of violence covered by the convention to prevent

secondary victimization.14

According to article 18 all the parties of the convention have to take necessary legislative or

other measures to protect all victims from any further acts of violence. Furthermore, the

measures taken pursuant to this article aim at avoiding secondary victimization.15

According to article 56 parties shall take the necessary legislative or other measures to protect

the rights and interests of victims, including their special needs as witnesses, at all stages of

investigations and judicial proceedings, in particular by: providing for their protection, as well

as that of their families and witnesses, from intimidation, retaliation and repeat victimization;

enabling victims, in a manner consistent with the procedural rules of internal law, to be heard,

to supply evidence and have their views, needs and concerns presented, directly or through an

intermediary, and considered; ensuring that contact between victims and perpetrators within

court and law enforcement agency premises is avoided where possible; enabling victims to

testify, according to the rules provided by their internal law, in the courtroom without being

present or at least without the presence of the alleged perpetrator, notably through the use of

appropriate communication technologies, where available.

Only the three articles of the convention mentioned above specifically bring out the term

secondary victimization. However, the writers of this paper find that there are other articles

where the reader can interpret the article in a way that the article protects victims against

13 Ibid, p 41 14 Council of Europe Convention on preventing and combating violence against women and domestic violence.

Article 15, p 12. Online:

https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016804603

1c 15 Ibid ̧p 13

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secondary victimization. For example, article 49. Article 49 is in the VI chapter of the

Convention that deals with investigation, prosecution, procedural law and protective measures.

According to article 49 parties shall take necessary legislative or other measures to ensure that

investigations and judicial proceedings in relation to all forms of violence covered by the scope

of the convention are carried out without undue delay while taking into consideration the rights

of the victim during all stages of the criminal proceedings.

There is another general article that can be interpreted in the same manner. According to article

50 parties shall take the necessary legislative or other measures to ensure that the responsible

law enforcement agencies respond to all forms of violence covered by the scope of the

convention promptly and appropriately by offering adequate and immediate protection to

victims.

2.3. The Victims’ Right Directive 2012/29/EU

The Victims’ Right Directive enshrines basic rights for victims of crime into law. For example,

a right to have access to justice, a right to be recognized and treated with respect and dignity,

a right to compensation from the offender etc.16 For the purpose of this paper the writers will

turn their attention more on the articles that deal with secondary victimization in criminal

proceedings.

As a general provision in Article 1 all Member States must ensure that victims are recognized

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.17

Similar to the Istanbul Convention, the Directive also demands that Member States have to

ensure that officials likely to come into contact with victims receive both general and specialist

training.18

Member States also must take measures to safeguard the victim from secondary and repeat

victimization, from intimidation and from retaliation, to be applied when providing any

restorative justice services. The restorative justice services are used only if they are in the

16 The Victims’ Rights Directive 2012/29/EU. European Implementation Assessment, December 2017, p 40 17 The Victims’ Right Directive 2012/29/EU. Online: https://eur-lex.europa.eu/legal-

content/EN/TXT/PDF/?uri=CELEX:32012L0029&from=et 18 Article 25

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interest of the victim and are based on the victim’s free and informed consent, which may be

withdrawn at any time.19 According to the Directive factors such as the nature and severity of

the crime, the ensuing degree of trauma, the repeat violation of a victim's physical, sexual, or

psychological integrity, power imbalances, and the age, maturity or intellectual capacity of the

victim, which could limit or reduce the victim's ability to make an informed choice or could

prejudice a positive outcome for the victim, should be taken into consideration in referring a

case to the restorative justice services and in conducting a restorative justice process.20

According to article 18, Member States shall ensure that measures are available to protect

victims and their family members from secondary and repeat victimization, from intimidation

and from retaliation, including against the risk of emotional or psychological harm, and to

protect the dignity of victims during questioning and when testifying.

To fulfill the goals of article 18, Member States shall establish the necessary conditions to

enable avoidance of contact between victims and their family members, where necessary, and

the offender within premises where criminal proceedings are conducted, unless the criminal

proceedings require such contact.21 According to Article 20 there are several provisions that

have to be considered when protecting the victims. For example, interviews of victims are

conducted without unjustified delay and the number of interviews of victims is kept to a

minimum and the interviews are Carried out only where strictly necessary. A practical example

would be video recording of interviews and allowing its use in court proceedings.

The Directive also gives advice on what other means to use to prevent secondary victimization.

For example, to prevent distress to the victim during court proceedings in particular as a result

of visual contact with the offender, his or her family, associates or members of the public. The

Member States should be encouraged to introduce, especially in relation to court buildings and

police stations, feasible and practical measures enabling the facilities to include amenities such

as separate entrances and waiting areas for victims. In addition, Member States should, to the

extent possible, plan the criminal proceedings so that contacts between victims and their family

members and offenders are avoided, such as by summoning victims and offenders to hearings

at different times.

19 The Victims’ Right Directive 2012/29/EU, article 12 20 The Victims’ Right Directive 2012/29/EU, preamble 46 21 Article 19

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3. Secondary victimization in Estonian criminal law

Under Estonian criminal law according to § 37 (1) of the Code of Criminal Procedure (hereafter

named CCP) a victim is a natural or legal person whose legal rights have been directly violated

by a criminal offence aimed at the person or by an unlawful act committed by a person not

capable of guilt.22 According to the Victim Support Act of Estonia23 § 3 (1) a victim is

considered to be someone who has fallen victim to criminal offence, negligence or

mistreatment or physical, mental or sexual abuse.

As secondary victimization has been described and defined in the first chapter, it will not be

repeated. Instead this chapter will focus on what are the most common ways of secondary

victimization discussed in legal literature and whether or not these also appear in Estonian

criminal proceedings. Furthermore, the means to avoid secondary victimization will be

discussed from the perspective of Estonian criminal proceedings.

3.1. Means to reduce secondary victimization in Estonia

3.1.1. Pre-trial phase

In the pre-trial phase the prosecutors of domestic violence and other similar cases have the

opportunity to refer the victims to MARAC when they see the need for it. Other times the

victims have already been referred to MARAC by either social workers, police or the victim

support organisation. MARAC is a multi-agency risk assessment conference originating from

the United Kingdom that has been implemented in Estonia since 2015. The core of the MARAC

usually consists of representatives of the Victims’ Support organisation, the Prosecutor’s

Office, the police, local governments and other relevant organisations. The aim is to recover,

reduce and assess the risk in high-risk families and domestic partnerships, it helps to provide

safety for the victims and aid them in other tasks when and if they should need it.

In the Northern District Prosecutor’s Office of Estonia, the help of a trained professional as a

support person is often used. Said person will attend pre-trial phase meetings if the victim has

expressed their need to it but can also be present during the trial phase to support the victim

during the proceedings. It is not uncommon for said support person to help the victim with civil

22 Code of Criminal Procedure, RT I 2003, 27, 166. Online:

https://www.riigiteataja.ee/en/eli/507012020008/consolide 23 Victim Support Act, RT I 2004, 2, 3. Online: https://www.riigiteataja.ee/en/eli/504022019007/consolide

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proceedings, mostly regarding proceedings with local governments, e.g to change their current

address or to arrange a meeting with child services or other social services if necessary.

During the pre-trial phase, when it is clear that the case could be terminated under § 203-1 (6)

of the CCP, the prosecutor will meet personally with the victim, explain the consequences of

termination of criminal case and when make sure if the victim has had contact the Victims’

Support organisation. In domestic violence cases it is standard practice that the responding

police officers will inquire whether the victim is willing to submit their personal data and

contact information to the Victims’ Support organisation. This is done immediately when

responding to a domestic violence call, when there is evidence suggesting that a criminal

offence has been committed.

Terminating the criminal case under § 203-1 (6) of the CCP means, that the victim and the

accused will both be referred to a third objective and professional party who will carry out their

reconciliation procedure, as termination will only be allowed if the parties of the criminal case

have reconciled. Firstly, the victim will have an individual meeting with the conciliator where

they will address the victim’s view on the incident and figure out the needs and wishes of the

victim in order to reconcile. Secondly, the accused will have an individual meeting with the

conciliator who will then present the victims’ needs and wishes for reconciliation to the accused

and on the third meeting both parties will sign a conciliation agreement which has to be

followed and carried out during the following six months. During this process the victim has

the opportunity to refuse to continue with the reconciliation process and also to refuse to accept

the reconciliation agreement.

On the other hand, when it is evident that the case could be terminated in the pre-trial phase,

but taking into consideration the relationship or lack thereof between the parties of the criminal

case and how it may affect the reconciliation procedure, the prosecutor has the opportunity to

terminate the case by appointing obligations to the accused. This is regulated by § 202 (7) of

the CCP and the most common obligations imposed on the accused are either monetary,

mandatory participation in a social programme or other relevant obligations. The obligations

are imposed keeping in mind the individual family’s or domestic relationship’s characteristics

and also the personal qualities of the accused. For example, in cases where the accused has

anger management problems but does not abuse alcohol or other mind-altering substances, they

will likely be obliged to participate in a social programme, focused on reducing, avoiding and

preventing violence all-together. Whereas, in cases where the accused may have tendency to

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use violence when under the influence of alcohol or other mind-altering substances, they will

commonly be obliged to enter voluntary treatment or to not use alcohol for a certain period.

The many ways of imposing obligations on the accused without court procedures aims to

reduce the length of criminal proceedings, the cost of proceedings and the amount of criminally

charged people in the country.

With that being said, there are important criteria that a case must fill in order to be considered

a possible candidate for termination under § 202 (7) or § 203-1 (6). But when said criteria are

met, the Prosecutor’s Office alongside its cooperation partners such as EELK (Estonian

Evangelistic Lutherian Church Family Centre), the Victims’ Support organisation, TSF Clinic,

Wismari hospital and other hospitals in Tallinn, will take into consideration and respect the

needs of every family or domestic partnership in order to reduce or even avoid the chances of

another incident and to repair the damages done as much as possible to restore justice.

3.1.2. Trial phase

The most common ways to reduce or prevent secondary victimization in the trial phase by

prosecutors is firstly, choosing the least exhausting and uncomfortable procedures, otherwise

known as simplified procedures, where possible; secondly, providing the victim with support

during the trial phase and thirdly, making modifications in the traditional rules of procedure in

favour of the victim to maximum extent possible.

The simplified procedures dictated by law are alternative procedure, settlement procedure

(plea-bargain) and expedited procedure (short procedure). The short procedure may be carried

out under the regulations of either alternative or plea-bargaining procedure with the exception

that it will be carried out within 48 hours of interrogating the suspect or detaining the suspect.

None of the aforementioned procedures call for the participation of the victim in trial, they

have to right to participate but no obligation. Therefore, the victim does not need to go through

the effort of giving statements before the court, neither do they have to face the suspect or

accused. According to § 236 (1) of the CCP the victims will be summoned for the hearing in

proceedings under short procedure but their failure to appear in a court session shall not hinder

neither judicial hearing of the criminal matter nor consideration of the civil action or proof to

claim in public law.

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According to the § 246 (11) in proceedings under plea-bargaining procedure rules, court shall

notify a victim who is a natural person based on the contact details submitted by him or her or

through the e-file system of the time of a court session, if the victim requested so. The failure

of a victim to appear in a court session shall not hinder judicial hearing of the criminal matter.

Not requiring the victim to be present during a simplified procedure definitely aims towards

the reduction of secondary victimization, because this way the victim avoids the high-pressure

situation of being present in a courtroom, giving statements or just becoming face to face with

the accused. It is a common practice for the prosecutors of Estonia to prefer simplified

procedures in the interest of the victims when it is possible according to the circumstances of

the criminal case.

Providing the victims with support during the trial phase can be necessary also in simplified

procedures when the victim chooses to exercise their right to take part of the hearing. In

addition, victims who find it necessary may be provided with support during the hearings by

the Victim Support of Estonia (Victim Support Act § 3 (2)).

Modifications in favour of the victim include allowing the victim to testify via video

conference, that is usually set up so that the victim is in the courthouse but in another room

than the accused. This allows the accused their right to question the victim accusing them, but

also allows the court to see their reaction to questions, their body language when answering

and other elements that may show the court and assure them of the victims’ credibility.

Testifying via video conference is not a very common practice in Estonia, but has been utilized

in cases of extreme seriousness or for victims who have suffered from significant trauma.

Also, there have been cases, especially with younger victims (over 14), where the court has

used a divider in the courtroom to separate the victim from the accused, but still giving the

prosecutor, the accused, their defence and the court the possibility to question the victim. The

direct contact - visual or physical - between the victim and the accused is not obligatory.

Therefore, there can be exceptions in how to include the victim in criminal cases when there is

reason to believe that traditional ways should be too much for the victim to bear.

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3.2. Ensuring the victims’ procedural rights

A study from 201324 was carried out by interviewing victims who had essentially been deprived

of their loved ones through death or bereaved. They were asked to describe their experiences

with different law-enforcement organisations during criminal proceedings and the results show

that victims or in the case of this specific study, co-victims, find lack of information, not being

allowed to show emotion in court, dealing with the defendant’s family in court and treatment

by barristers among the most re-victimizing experiences. This chapter will focus on the need

to keep the victims’ informed and overall treatment of victims or co-victims, not only by

barristers.

3.2.1. Keeping them informed

The study found that law-enforcement giving out insufficient or even withholding information

can produce and enforce already existing feelings of frustration and powerlessness. Some of

the interviewees found that the police had contacted them insufficiently or had not made them

aware of the proceedings as they were ongoing, neither were they given proper information

about the case by the police. Actually, the lack of information can be divided into two

categories - not providing adequate information about the victims’ rights and possibilities

during the proceedings and also not providing adequate information about the ongoing

investigation. The victims who have had adequate information from and helpful

communication with the authorities during the pre-trial phase, are reported to feel that the

authorities have not forgotten about them and they sense that the authorities are interested in

them and their needs25. Keeping the parties involved informed and up to date about the

decisions in the criminal case or other relevant subjects is an effective means to improve the

treatment of victims and enhance the victims’ opinion on and towards the justice system.26

According to the CCP § 38 (1) p 7 the victim has the right to examine the materials of the

criminal file pursuant to the procedure provided for in CCP § 224.27 It is a common practice in

Estonia for example in domestic violence cases that the victims have the opportunity to

24 A. Gekoski, J. M. Gray, J. R. Adler, “Interviewing women bereaved by homicide”.

Online:https://www.researchgate.net/publication/256381343_Anna_Gekoski_Jacqueline_M_Gray_Joanna_R_A

dler_2013_Interviewing_women_bereaved_by_homicide_Reports_of_secondary_victimization_by_the_crimina

l_justice_system_International_Review_of_Victimology_19_3 25 J. - A. M. Wemmers. Victims in the Criminal Justice System, p 207. 26 Ibid. 27 According to CCP § 224 the criminal file will be made available to the concerned party by the prosecutor

during the pre-trial phase right before the trial phase.

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examine the materials presented to them by the leading prosecutor on the case. What is more,

in some instances the victims have the opportunity to examine the existing materials already

during their contact with the investigative authorities. This is to make sure that the victims have

been provided access to the necessary information during the whole pre-trial phase to the

possible extent, notwithstanding the possible procedural-tactical needs during the investigation

phase that may limit said right of victims. Also, the opportunity to examine the materials of the

criminal file gives the victims the chance to ask additional questions from the prosecutor during

the meeting.

It is a common practice that the victims have the right to examine the materials of the criminal

file even when the criminal proceeding is terminated under CCP § 202 (7) by imposing

obligations to the suspect or accused. Furthermore, there is no obligation under law imposed

upon the prosecutors but it is common practice that the prosecutor has direct contact with the

victim before deciding to terminate the proceedings accordance with the CCP § 202 (7). This

is to inform the victim about the procedural decision and other relevant information, but also

an opportunity for the prosecutor to consider the victims experience, wishes and needs to the

possible extent.

3.2.2. Treatment by authorities

To avoid further victimization and re-victimization, the authorities must act swiftly and

adequately to provide appropriate and necessary protection to the victim immediately after the

criminal offence. Therefore, every encounter by the authorities with the victim must be as

supportive as possible whilst staying inside the frames set by law. Many interviewees of the

aforementioned study felt as is the authorities did not think them worthy of explanations or the

time.

CCP § 9 (3) obliges the investigative parties, prosecutor’s office and courts to treat the

participants of the proceedings without defamation or degradation of their dignity. No one shall

be subjected to torture or other cruel or inhuman treatment. Also, according to CCP § 9 (4) in

criminal proceedings, it is permitted to interfere with the private and family life of a person and

interference is allowed only in the cases and pursuant to the procedure provided for in the Code

in order to prevent a criminal offence, apprehend a criminal offender, ascertain the truth in a

criminal matter or secure the execution of a court judgment.

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In order to reduce the tension that meetings in the prosecutor’s office and discussions about the

criminal offence have on the victim, the Northern District Prosecutor’s Office of Estonia has

started to imply a way of coinciding the two meetings, therefore reducing the times the victims

have to meet with different entities of law-enforcement or other authorities. There are many

positive aspects to this new approach, mainly that victims have direct contact and adequate

communication with the prosecutor, they do not need to re-enact their experiences more than

necessary, their time is being valued and respected by the authorities and lastly, the experiment

has so far significantly shortened the length of the conciliation process, whereas in the

traditional way it takes about 2-3 months on average to conclude the conciliation process, but

with this experiment it has so far taken up to 3 weeks. This is an immense improvement on the

treatment of victims in criminal proceedings by showing respect towards the victims’ rights

and needs as well as their time.

17

4. Conflict between victims’ rights and the right to a fair trial according to

Article 6 of European Convention

Article 6 of the European Convention on Human Rights is the provision of the European

Convention that protects the right to a fair trial. Article states the following:

1. In the determination of his civil rights and obligations or of any criminal charge against

him, everyone is entitled to a fair and public hearing within a reasonable time by an

independent and impartial tribunal established by law. Judgment shall be pronounced publicly

but the press and public may be excluded from all or part of the trial in the interests of morals,

public order or national security in a democratic society, where the interests of juveniles or

the protection of the private life of the parties so require, or to the extent strictly necessary in

the opinion of the court in special circumstances where publicity would prejudice the interests

of justice.

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty

according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the

nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he

has not sufficient means to pay for legal assistance, to be given it free when the interests

of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance

and examination of witnesses on his behalf under the same conditions as witnesses

against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the

language used in court.28

28 European for the Protection of Human Rights and Fundamental Freedoms, Rome 4.11.1950. Online:

https://www.echr.coe.int/Documents/Convention_ENG.pdf

18

Article 6 is also the provision of the Convention which has been violated most. And when it

comes to Istanbul Convention the potential conflict between victims’ rights and the right to a

fair trial may follow. It is important to bear in mind that the European Convention has no

specific provision dealing with the rights of a victim of a criminal offence. Any measures taken

in implementation of Article 49 (2) are not prejudicial to the rights of the defence and the

requirements of a fair and impartial trial, in conformity with Article 6 ECHR.29

4.1. Measures to protect the victims according to Istanbul Convention

Article 56 (1) g and i of Istanbul Convention enacts that parties shall take the necessary

legislative or other measures to protect the rights and interests of victims, including their special

needs as witnesses, at all stages of investigations and judicial proceedings, in particular by:

- ensuring that contact between victims and perpetrators within court and law enforcement

agency premises is avoided where possible.30

This is designed to protect victims, in particular by preventing their being further traumatized

through contact, on the premises of the investigation services and in court, with the alleged

perpetrator of the offence. This provision applies to all stages of the criminal proceedings

(including the investigation), with certain exceptions: the investigation services and the judicial

authority must be able to waive this requirement for example when the victim wishes to attend

the hearing or when contact between the victim and the alleged perpetrator is necessary or

useful for ensuring that the proceedings take place satisfactorily (for example, when a

confrontation appears necessary).31 In some cases, the accused has the right to demand meeting

and confronting the victim, regardless whether he does so in order to protect his rights or

intimidate the victim, as we have no way to make sure that he is doing so with bad intentions.

- enabling victims to testify, according to the rules provided by their internal law, in the

courtroom without being present or at least without the presence of the alleged

perpetrator, notably through the use of appropriate communication technologies, where

available.

29 Explanatory Report to the Council of Europe Convention on preventing and combating violence against women

and domestic violence, Istanbul, 11.05.2011, p 43 30 Convention of Preventing and Combating Violence against Women and Domestic Violence. Council of Europe

Treaty series – No. 210. Istanbul, 11.05.2011 31 Explanatory Report to the Council of Europe Convention on preventing and combating violence against

women and domestic violence, Istanbul, 11.05.2011, p 49

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This places an obligation on Parties to ensure that victims are enabled to testify in the courtroom

without being present or at least without the presence of the alleged perpetrator. The law in

some countries provides for audiovisual recording of hearings of victims and safeguarding such

hearings by such means as: limiting the people allowed to attend the hearing and view the

recording; allowing the victim to request a break in recording at any time and making a full,

word-for-word transcription of the hearing on request. Such recordings and written records

may then be used in court instead of having the victim appear in person. Some legal systems

likewise allow victims to appear before the court by videoconference. The victim is heard in a

separate room, possibly in the presence of an expert and technicians. To limit as far as possible

the psychological impact on the victim of being in the same room as the perpetrator or being

with them by videoconference, the sightlines of both can be restricted so that the victim cannot

see the perpetrator and/or vice versa. If, for instance, the victim were to appear at the hearing,

she or he could give evidence from behind a screen or give evidence where the perpetrator does

not appear in the court room. Parties must therefore ensure the obligation laid out in this

provision, where available, through the use of appropriate communication technologies.32

However, it is important to ensure that any measures taken to assess and manage the risk of

further violence allow for the rights of the accused to be respected at all times. At the same

time, it is of paramount importance that such measures do not aggravate any harm experienced

by victims and that investigations and judicial proceedings do not lead to secondary

victimization.33

4.2. Case law of European Court of Human Rights

Avoiding secondary victimization may harm the most the minimum rights mentioned in Article

6 § 3(d), which enshrines the principle that, before an accused can be convicted, all evidence

against him must normally be produced in his presence at a public hearing with a view to

adversarial argument. Exceptions to this principle are possible but must not infringe the rights

of the defence, which, as a rule, require that the accused should be given an adequate and proper

opportunity to challenge and question a witness against him, either when that witness makes

his statement or at later stage of proceedings.34 There are two requirements which follow from

the above general principle. First, there must be a good reason for the non-attendance of a

32 Ibid, p 49 33 Ibid, p 44 34 ECHR case of Al-Khawaja and Tahery v. The United Kingdom, p 118.

20

witness. Second, when a conviction is based solely or to a decisive degree on depositions that

have been made by a person whom the accused has had no opportunity to examine or to have

examined, whether during the investigation or at the trial, the rights of the defence may be

restricted to an extent that is incompatible with the guarantees provided by Article 6 (the so-

called “sole or decisive rule”).35

In judgment Van Mechelen and Others v. the Netherlands of European Court of Human Rights

(hereafter named ECHR) has stated – Having regard to the place that the right to a fair

administration of justice holds in a democratic society, any measures restricting the rights of

the defence should be strictly necessary. If a less restrictive measure can suffice then that

measure should be applied.36 The possibility for the accused to confront a material witness in

the presence of a judge is an important element of a fair trial.37

In judgment Al-Khawaja and Tahery v. the United Kingdom Court has said that the requirement

that there be a good reason for the non-attendance of a witness is a preliminary question which

must be examined before any consideration is given as to whether that evidence was sole or

decisive. When witnesses do not attend to give live evidence, there is a duty to enquire whether

their absence is justified.38

Even where a hearsay statement is the sole or decisive evidence against a defendant, its

admission as evidence will not automatically result in a breach of Article 6 § 1. However, the

fact that a conviction is based solely or to a decisive extent on the statement of an absent witness

would constitute a very important factor to weigh in the scales and one which would require

sufficient counterbalancing factors, including the existence of strong procedural safeguards.

The question in each case is whether there are sufficient counterbalancing factors in place,

including measures that permit a fair and proper assessment of the reliability of that evidence

to take place. This would permit a conviction to be based on such evidence only if it is

sufficiently reliable given its importance in the case.39 Also, while the problems raised by

anonymous and absent witnesses are not identical, the two situations are not different in

principle, since each result in a potential disadvantage for the defendant. The underlying

35 Ibid, p 119 36 ECHR case of Van Mechelen and Others v. the Netherlands, p 58 37 Guide of Article 6 of the European Convention on Human Rights - Right to a fair trial (criminal limb).

Council of Europe/European Court of Human Rights, 2014. P 50. Online:

http://www.ejtn.eu/PageFiles/15659/2013%20ECtHR%20Case-law%20Guide%20Article%206%20criminal.pdf 38 ECHR case of Al-Khawaja and Tahery v. The United Kingdom, p 120 39 Ibid, p 147

21

principle is that the defendant in a criminal trial should have an effective opportunity to

challenge the evidence against him.40

In judgment Doorson v. the Netherlands – While Article 6 does not explicitly require the

interests of witnesses to be taken into consideration, their life, liberty or security of person may

be at stake, as may interests coming generally within the ambit of Article 8 of the Convention.

Contracting States should organize their criminal proceedings in such a way that those interests

are not unjustifiably imperiled. The principles of a fair trial therefore require that in appropriate

cases the interests of the defence are balanced against those of witnesses or victims called upon

to testify.41 In the same decision the court has stated that the national authorities must have

adduced relevant and sufficient reasons to keep secret the identity of certain witnesses.42

In judgment Bocos-Cuesta v. the Netherlands and P.S. v. Germany Court has stated that the

accused must be able to observe the demeanour of the witnesses under questioning and to

challenge their statements and credibility.43 In judgment D. v. Finland – The viewing of a video

recording of a witness account cannot be regarded alone as sufficiently safeguarding the rights

of the defence where no opportunity to put questions to a person giving the account has been

afforded by the authorities.44

Only in exceptional circumstances, such as in cases involving sexual offences like the rape of

a woman, or sexual abuse of a child, can the refusal of a key witness – the alleged victim – to

testify serve as a legitimate ground for using testimony recorded pre-trial without summoning

that witness. The aim here is consideration for the witness’ mental state and the avoidance of

undesired publicity at trial.45

The case of Y. v. Slovenia (May 2015) refers to a sexual assault case, in which the victim was

cross-examined personally by the defendant as well as being approached by them during a

recess and invited out to dinner. When the case was brought before the ECHR, judges found

that ''cross-examination should not be used as a means of intimidating or humiliating witnesses'

and that personal insinuations made by the defendant regarding the witness 'exceeded the limits

40 Ibid, p 127 41 ECHR case of Doorson v. the Netherlands, p 70 42 Ibid, p 71 43 ECHR case of Bocos-Cuesta v. the Netherlands, p 71 and ECHR case of P.S v. Germany, p 26 44 ECHR case of D. v. Finland, p 50 45 D. Vitkauskas, G. Dikov. Protecting the right to a fair trial Under the European Convention on Human Rights.

Council of Europe, Strasbourg 2012. P 96-97

22

of what could be tolerated for the purposes of enabling him to mount an effective defense'. 46

An intervention by the judge to limit the defendant's remarks would have helped to uphold the

victim's procedural rights and diminish their distress without curtailing the rights of the

defendant.

S.N. v. Sweden became the leading case in the ECtHR’s case law. In it, the court has had regard

to the special features of criminal proceedings concerning sexual offences. Such proceedings

are often conceived of as an ordeal by the victim, in particular when the latter is unwillingly

confronted with the defendant. These features are even more prominent in a case involving a

minor. In the assessment of the question whether or not in such proceedings an accused

received a fair trial, account must be taken of the right to respect for the private life of the

perceived victim. Therefore, the Court accepts that in criminal proceedings concerning sexual

abuse certain measures may be taken for the purpose of protecting the victim, provided that

such measures can be reconciled with an adequate and effective exercise of the rights of the

defence.47

Also, no violation of the right to examine witnesses was found in case Scheper v. the

Netherlands where three key witnesses – all alleged victims of rape – refusing to testify at trial

in order to avoid serious mental disturbances by confronting perpetrator, testimonies being

recorded before trial and used for conviction.48

It is often the domestic violence cases where the victim’s testimony is the main evidence,

because there are no other witnesses to the incident. Even if the injuries of the victim are

visually seen and have been fixed, the only evidence which confirms the manner in which the

injuries were caused, is victims’ testimony.

46 ECHR case of Y. v. Slovenia, p 108-109 47 ECHR case of S.N. v. Sweden, p 47 48 The Court agrees with the applicant that it would have been preferable if Ms A., Ms B. and Ms C. had given

evidence in the trial proceedings. However, it has not been argued and neither has it appeared that the judicial

authorities have been negligent in their efforts to bring these three witnesses before the Court of Appeal or the

investigating judge. In view of these efforts, their failure to appear did not make it necessary to discontinue the

prosecution (see Artner v. Austria, judgment of 28 August 1992, Series A no. 242-A, p. 10, § 21). In this respect,

the Court also takes into account the special features of criminal proceedings concerning rape and other sexual

offences. Such proceedings are often conceived of as an ordeal by the victim, in particular as they entail being

confronted again with the defendant. It is not uncommon for such victims to seek ways to avoid such distressing

confrontations by refusing to give oral evidence in court, as was the case of Ms A. in the proceedings complained

of. It becomes even more difficult for the national authorities to secure the attendance of such victims before a

trial court when the victims' whereabouts are unknown, which was the situation in respect of Ms B. and Ms C. –

ECHR case of Scheper v. Netherlands, p 7-8

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Conclusion

Conducting the research necessary for this paper, the authors – as young prosecutors of Estonia

- have found reassurance in the knowledge that we have been following and enforcing the

European regulations for the best treatment of victims in criminal proceedings to the best of

our abilities. It is assuring to conclude that the criminal procedure ensures the proper treatment

and necessary means to cope with the proceedings to the victims. Although there are

undoubtedly ways that need to improve, first and foremost in minimizing the contact between

the victims and perpetrators within court and law enforcement agency premises, it can be said

that the criminal procedure of Estonia is focused on the protection of victims while trying to

avoid secondary victimization, all the while guarding the perpetrators rights.

To emphasize some of the most notable accomplishments in Estonian law the example of

opportunities in pre-trial phase of criminal proceedings is fitting: both parties – the victim and

the accused – are informed of the proceedings and case development and neither pre-trial

solutions will usually be carried out without discussion with and agreement from both sides.

This respects the victims’ right to deny meetings with perpetrator in preferring termination of

procedure under CCP § 202 (7) to conciliation procedure. Whereas the conciliation procedure

ensures that the perpetrator gets to enforce a version of ECHR Art 6 § 3(d) in having the

opportunity to discuss the incident in the presence of a conciliator with the victim, although

there is no judicial argumentation or trial held before the conciliator, the side still gets to speak

their version of the story and present it to an objective counterpart.

It is commendable that there are adequate and fitting ways to present witnesses and victims in

court via audiovisual connections. During the COVID-19 pandemic the Estonian criminal

system has successfully started to use more and more of these innovative solutions whether for

pre-trial or trial phases. This has not only ensured the physical safety of the parties but in many

cases undoubtedly the psychological safety of the victims in difficult proceedings as well.

Also, it is notable that the victims have a considerable support group appointed to them during

criminal proceedings, should they accept it. The work of the Victims’ Support organisation in

Estonia is noteworthy because they give adequate support, guidance and assistance to the

victim during every phase of the procedure when the victim has so requested.

24

In conclusion, it can be said that the criminal procedure of Estonian law is focused on

minimizing secondary victimization while respecting the rights of both sides of a criminal case

following both the Istanbul Convention and the ECHR.