The long path to the recognition of victim's rights in Spain: past, present and future

• Author: Dra. Núria Mallandrich Miret
• Profession: Profesora Agregada de Derecho Procesal de la Universidad de Barcelona
• Pages: 69-87

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The long path to the recognition of victim’s rights in Spain:

past, present and future 1

D. N M M

Profesora Agregada de Derecho Procesal de la Universidad de Barcelona

1. INTRODUCCIÓN

The status and role of crime victims have not been static over the years. On the

contrary, they have been dynamic. In some periods of history, victims have played

an active role, while in others they have been completely neglected. Nowadays, in

Spain, thanks largely to the European Union, the recognition of victims’ rights is

at the highest level. However, as some reports have shown, there is still a way to go.

In the words of Directive 2012/29/EU, it is generally accepted that “crime is both

a wrong against society and a violation of the individual rights of victims.” States

have an obligation to “ensure the effective recognition and respect of victims’

human rights.” It is impossible to completely erase the effects of crime, but we as a

society should strive to do so. Hence, the current level of recognition is high, but

it could be more elevated, or at least the current rights could be better protected.

If we cannot prevent crime, we can at least try to improve the situation of the

victims.

The aforementioned Directive 2012/29/EU, establishing minimum

standards for the rights, support and protection of victims of crime, has been a

turning point in the field of recognition of victims’ rights, but a dynamic approach

to the issue requires not stopping and going further to determine what can be

improved. For this reason, the European Commission has adopted a specific

policy for the period 2020-2025 called the Strategy on Victims’ Rights.

Therefore, the purpose of this article is to analyze current trends in victims’

rights. In other words, to try to determine where we are going or what we can

expect in the future, focusing mainly on issues related to criminal procedure. Of

1 This paper has been done within the scope of Project “Estrategias transversales para la prevención

de la delincuencia económica y la corrupción (PID 2021-1230280B-100) funded by the Ministry of Science

and innovation.

Dra. Núria Mallandrich Miret

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course, this task is not the result of a mathematical operation, as many different

factors are involved (i.e. political factors, costs, other rights engaged), but I think

that some trends can be identified. Some will see the light of day in the near

future, others perhaps in the medium or long term, or even never, but I think that

if we can identify them, it is because there is a need beneath. In order to address

the issue, it is necessary to review the current situation, but also to know where it

comes from because, as I have said before, today is the result of the past. There

has been an evolution that must be seen as a continuum to get a glimpse of what

might come.

In view of the above, this paper is divided into five sections. This presentation

is followed by three different sections dealing with: 1) the past, that is, what has

led to our current legal system; 2) the present, which will present and overview of

Directive 2012/29 EU and how it has been transposed in Spain; and 3) the future,

including trends like digitalization, but also victim compensation or reparation, as

some suggest. I do not pretend to deeply analyze the evolution of victims’ rights,

as this has already been done by others in detail and would far exceed the purpose

and the extent of this paper. I will simply review important events, which may

help understand why we are in the current situation and what might come in the

future.

2. PAST: FROM THE SPANISH CRIMINAL PROCEDURE CODE TO

SPECIFIC REGULATIONS ON VICTIM’S RIGHTS

2.1. The birth of victimology as a pivotal moment on recognizing victims’

rights

Literature has traditionally identified three stages in the history in which

victims’ have played different roles in criminal proceedings 2. The first stage

covers primitive societies where victims played a fundamental role as they were

a necessary element of reaction to crime 3. The second stage begins when States

assumed the ownership of ius puniendi. From this point on, the victim treated as

an outsider, as some has said she was “forgotten” in criminal proceedings as those

were carried only between the State, holder of ius puniendi, and the defendant.

At this stage the victim was an “object” used in criminal proceedings as necessary

2 ORDEÑANA GEZURAGA, I., El estatuto jurídico de la víctima el en el derecho jurisdiccional penal español,

Instituto Vasco de Administración Pública, Bilbao, 2014, pag. 61.

3 For further information on the historical evolution of criminal proceedings see BARONA

VILLAR, S., El proceso penal desde la historia. Desde su origen hasta la sociedad global del miedo, Tirant lo Blanch,

Valencia, 2017, passim.