Tools in Network: an E-Net Approach to Sharing Mediation Competences.

Victims as "Rightholders"

Victims are more than just human beings, desirous of being protected and listened to and obtaining compensation for the negative consequences resulting from the offence they have suffered. Every victim is, first and foremost, the holder of specific rights and prerogatives, and this must be recognised by making available a set of measures that should not only be envisaged by criminal law.

In the first place, it is during a trial that victims are enabled to voice their own suffering. Conversely, the traditional legal culture is focused mainly on ensuring that prosecution and defence are on a level playfield. It is as if the only objective consisted in ensuring that the parties in the proceedings are handled formally in the same manner, whilst no consideration is given to affording really equal dignity in proceedings to both the party who was allegedly injured by the offence and the relevant offender.

The "actual legal recognition" that is called for by victims does not only entail recognition of their rights to be awarded damages - which is feasible in standard criminal proceedings, whilst it is not so in juveniles criminal proceedings because here the claiming of damages is not envisaged. Dignity and identity of the injured person coming before a judicial authority should not merely translate in calculating the amount of the damages - in fact, they require a broader set of procedural safeguards and rights, ranging from the exercise of the power to steer the proceedings up to the right to be informed and kept posted throughout the trial; from access to records up to the right to be heard with the appropriate precautions, and ultimately to the expectations applying to the final judicial decision. It is exactly via such a wide-ranging legal recognition that victims can get rid of their inferiority and subjection compared to offenders (M. Bouchard, Le garanzie processuali per la vittima minorenne, in Minori e Giustizia 2003, no. 2, p. 287). As reported by Matisson in Le Nouvel Observateur of 18 December 1997, one of the parties claiming damages in the trial against Maurice Papon stated that "Nothing can replace the action of justice for victims. It turns survivors into living beings." However, the protection afforded by justice, though indispensable, cannot by itself ensure the adequate protection of the injured party. The scope of the rights that must be afforded to victims is actually much broader. According to recent criminological studies, which have been influenced by the European and international policies developed in this area, an adequate victim protection system should be multi-tiered: Firstly, as pointed out above, it would be necessary to ensure that victims are empowered effectively and substantially impact on judicial proceedings. Secondly, a public system of social security should be envisaged whereby the State undertakes to provide remedies to damage whenever the offender is unable to do so. Thirdly, it would be necessary to implement welfare policies such as to include short-term as well as long-term safeguards not only to benefit direct victims, but also in respect of indirect victims - i.e. family members and the community as a whole. Finally, it would be desirable for lawmakers to introduce mitigation measures in favour of the offenders that have behaved co-operatively and set forth penalties that take due account of victims' requirements.