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Victim right to reparation

#FreshStartMonday

Human rights rest on human dignity. The dignity of man is an ideal worth fighting for and worth dying for. ‒ Robert C. Maynard


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The Guatemalan criminal justice system was created to judge, punish, and compensate the damage caused to a legal right protected by the Constitution. The democratic principles of the Criminal Procedural Code, Decree 51-92 of the Congress of the Republic, aims to guarantee the prompt and effective application of criminal justice, in order to: 1) ensure peace, tranquility and citizen security; 2) guarantee the respect for human rights, the effective prosecution of offenders of criminal law and the punishment of behaviors that harm the legal, social and individual property of Guatemalans; and 3) provide reparation for the damage caused by the crime.

In 2011, the Congress approved Decree 07-2011[1] which amended the Code of Criminal Procedure, incorporating a victimological approach that enhanced, among others, the participation of the victim, aggrieved and plaintiff in the criminal process. The amendment included the restoration of the right affected by the crime, from the recognition of the victim as a person to the alternatives available for his or her social reincorporation.

In 2016, the definition of victim was improved, establishing that: "victims shall be understood as individuals who, personally or collectively, have suffered damages including physical or mental injuries, emotional suffering, financial loss or substantial impairment of their fundamental rights, as a consequence of actions or omissions that violate the criminal legislation in force". The amendment also includes the spouse, immediate family members or dependents of the direct victim, people living with the victim at the time the crime was committed, and people suffered damages when intervening to assist the victim in danger or to prevent further suffering.[2]

In addition to the criminal law, the Organic Law of the Institute for the Assistance and Attention to the Victims of Crime regulates the obligation to provide assistance and attention to the victim. This law, in accordance with the principles of the United Nations and the Fundamental Principles of Justice for Victims of Crime and Abuse of Power, broadens the concept of reparation in Article 29, establishing that "dignified reparation, in addition to what is established in the Code of Criminal Procedure, includes measures of restitution, rehabilitation, compensation, satisfaction and measures of non-repetition".  

The "dignified" reparation must respond to the greatest extent possible: to the life project of the victim of the crime, personal conditions, expectations, opportunities, abilities, skills, and qualities, which have been undermined by the crime committed. Therefore, reparation should not be a simple abstract and arbitrary pronouncement of those who judge, but a decision based on data, evidence, and perceptions to restore the conditions of the victims, assessing the impact that the content of reparation may have on their future life.[3].  

In conclusion, in any process it is important to remember that all victims of human rights violations are entitled to reparations. Different victims have different needs, and those needs may change over time. Therefore, it must be considered that there is the possibility of preparing and discussing in a technical manner the terms of a dignified reparation based on the Code of Criminal Procedure and victim protection norms.

 

[1] Article 124 of the Code of Criminal Procedure. The reparation to which the victim is entitled includes the restoration of the right affected by the criminal act, which starts from recognizing the victim as a person with all his circumstances as a subject of rights against whom the criminal action fell, to the alternatives available for his social reincorporation in order to enjoy or make use as soon as possible of the affected right, to the extent that such reparation is humanly possible and, where appropriate, compensation for damages arising from the commission of the crime; for the exercise of this right the following rules must be observed: 1. The action for reparation may be exercised in the same criminal proceeding once the conviction has been handed down. The judge or court that issues the sentence of conviction, when there is a specific victim, shall summon the parties to the proceedings and the victim or injured party to the reparation hearing, which shall be held on the third day. 2. At the reparation hearing, the amount of compensation, restitution and, if applicable, damages shall be accredited in accordance with the rules of evidence, and the decision shall be pronounced immediately at the hearing itself. 3. With the decision of reparation, and the previously reported criminal liability and penalty, the written sentence is integrated. Notwithstanding the foregoing, at any time during the criminal proceeding, the victim or injured party may request the competent judge or court to adopt precautionary measures to secure sufficient assets to cover the amount of the reparation. 5. The declaration of civil liability shall be enforceable when the conviction becomes final. If the reparation action has not been exercised in this way, the right of the victim or injured party to exercise it in civil proceedings shall remain unaffected.

[2] Article 117. [...] 3. To the representatives of a corporation for crimes committed against it and to the partners with respect to those committed by those who direct, administer, or control it; and 4. To associations in crimes that affect collective or diffuse interests, provided that the purpose of the association is directly linked to such interests.
The aggrieved party, even if he/she has not constituted himself/herself as an adhesive complainant in accordance with the present Code, has the right to:

  1. To be informed of the rights to which he is entitled in the criminal proceeding.
  2. Receive medical, psycho-social, or any other assistance aimed at reducing the consequences of the criminal act.
  3. To have his or her opinion heard by the Public Prosecutor's Office in the proceedings, fundamentally before final or provisional decisions that imply closure or extinction of the criminal prosecution.
  4. To be informed, appropriately and in a timely manner4, of the prosecutorial and judicial decisions, and to be invited to the hearings in which his opinion may be expressed.
  5. To receive compensation and/or compensation for damages received.
  6. To receive protection when their physical integrity is endangered because of the criminal prosecution against the accused.
  7. To the existence of mechanisms to reduce the risk of secondary victimization during the criminal process.

 

[3] Explicación de motivos, Código Procesal Penal, 1a. Edición, compilador Lic. Luis Vásquez López, pagina 122.

Leopoldo Zeissig
Jennifer Bravo
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