Il rafforzamento dei diritti dell'offeso davanti al giudice italiano, statunitense e della Corte penale internazionale

In recent years, victims’ rights have gained a central place in the academic and policy reflections both in North America and Europe. After decades of indifference, in which the victim was relegated to the marginal role of being a reporter of the crime and a witness in court, the light has been turned towards this figure, leading to the discovery of the importance of its contribution to the trial dialectical confrontation, a role traditionally reserved for the accused and the prosecutor. Starting from the 1970s onwards, the «victims’ movement», composed of radical feminists, groups of ex-victims, lawyers, psychologists and psychiatrists, criminal justice agencies, academics, all moved by different ideologies and aims, struggled to put in the political and legislative agenda the victims’ need for consideration and respect . One of the most controversial issues on this subject, both from an international and domestic perspective, concerns the victim’s rights of participation in the criminal proceedings. In fact, the participation of the victim of a crime in the respective trial and, more specifically, the recognition of victim’s powers to intervene, in different ways, in the process, affects the utmost right of the accused to a fair trial. My research project aims at analyzing three different criminal models, looking at their evolution through the case-law of the different courts. Through a structural approach to the legal institutes, it will be possible to infer «le grands courants législatifs actuels» on the victim’s role and participation. The victims’ right to participate in court proceedings by expressing views and concerns through their own legal representative has been one of the major innovations of the International Criminal Court (ICC). Article 68 of the Rome Statute (the treaty that created the ICC) clearly declares that the Court shall permit the views and concerns of the victim to be presented and considered at stages of the proceedings determined to be appropriate by the Court. Since the first decision on the topic, issued by the Court in 2006, ICC judges have endorsed a broad interpretation of Article 68 and of the related articles of the Rules of Procedure and Evidence (Chapter II, Subsection 2), but failed to reach an agreement on the boundaries of that participation. Therefore, this essential right of the victim is influenced by the Pre-Trail and Trial Chambers different interpretations. A study of these decisions could bring to a wider knowledge of the topic, highlight potential improvements and explore failings in delivering meaningful participation to victims. The US system has been modified in 2004, with the approval of the Crime Victims’ Rights Act (CVRA) and the subsequent introduction of Section 3771 to title 18 of the US Code. The amendment has enumerated a list of rights afforded to the victims harmed as a result of «the commission of a Federal offense or an offense in the District of Columbia», and between them «the right to be reasonably heard at any public proceeding in the district court, involving release, plea, sentencing, or any parole proceeding». The emergent expanded role of the victim, under this most recent piece of legislation, has been drawn by the case-law, with particular progress in increased victim participation at sentencing. The study of the case-law could contribute to highlight differences and similarities with regard to the victim status in the European legislation. The most recent European directive (2012/29/UE) on the subject was approved in October 2012. The first part of the directive defines the general status of the victims, recognizing them information from the first contact with a competent authority and about their case, their right to interpretation and translation and the right to understand and be understood; chapter 3, more specifically, states the right to be heard during criminal proceedings, to provide evidence and to receive a review of a decision not to prosecute. In 1989 the Italian code of criminal procedure has adopted the accusatorial system, keeping several corrective inquisitorial institutions, such as the participation in the trial of the parte civile (i.e. the damaged of the crime, not necessary coincident with the victim) to obtain punitive damages from the convicted. The parte civile can take part in the trial, but has no rights during the criminal investigations; meanwhile the victim as well, has very little chances to influence the investigation, helping the prosecutor to search evidences of the crime committed and of the supposed author. In the context of European law, modified by the Treaty of Lisbon, regulations and directive have an increasingly large impact on the national criminal systems. The analysis of the Italian decisions, implementing the directive, together with the study of US Courts case-law and ICC jurisprudence, could lead to a deeper comprehension of these three different criminal procedure systems, offering the basis to infer general trends and future perspective of the status of the victim participation in the criminal proceedings, at the international and national level.