In addition to this, the Declaration points out a number of rights to be respected:
Access to justice and fair treatment, including the adaptation of judicial procedures to their needs, mainly through the provision of complete and timely information; allowing their opinions and concerns to be presented; and adopting measures to minimize inconvenience to victims, protect their privacy and ensure their safety4.
Restitution from the offender or third parties responsible for their behavior.
Compensation from the State in cases where it is not adequately provided by the offender.
Material, medical, psychological and social assistance.
Thanks to the progress made in the study of victims, some groups of people have been identified as being at greater risk of having their rights violated5, and are therefore more likely to be passive subjects of crime or to perceive their respective victimization more intensely6. People in these groups are usually referred to as “victims in especially vulnerable conditions”. Children fall into this category because they need special protection and care due to their lack of physical and mental maturity, as indicated in the Declaration of the Rights of the Child.
From a legal perspective, a human group is considered vulnerable when they lack protection and cannot fully enjoy their human rights, rather than because of an intrinsic situation (Núñez, 2012). In this manner, age would make children a particularly vulnerable group due to their legal invisibility and high degree of dependency (DHES, 2014).
Similarly, studies have shown the negative impact that victims may experience from the actions or omissions of third parties intervening after the crime has been committed. This inadequate response to the needs of the victims results in a second victimizing experience, known as secondary victimization. This can cause a deepening of the negative effects of the crime or cause new repercussions, whether psychological, emotional, social, patrimonial, among others. In fact, it is believed that the effects of this type of victimization may be even more negative than those caused by the crime itself (Beristain, 1994; Gutiérrez de Piñeres, Colonel and Pérez, 2009; UN, 1999).
The clearest evidence of this phenomenon can be found in criminal justice processes, which is known as institutional secondary victimization. As García-Pablos de Molina states, this “covers the personal costs derived from the intervention of the legal system, which, paradoxically, increases the victim’s suffering” (2003, p. 145). In fact, as noted in the UN Manual of Justice for Victims of Crime and Abuse of Power (1999), this type of secondary victimization can lead to the complete denial of their human rights, since their experiences as victims of crime are not recognized.
Given their age and level of maturity, children are more likely to experience this kind of secondary victimization, especially through the actions of institutions and actors in the justice system7 (Ibero-American Judicial Summit, 2008; UN, 2005 and UN, 1999; Requejo, 2013).
The recognition of this phenomenon and its potential impact on groups of victims in particularly vulnerable conditions has justified the creation of special measures that seek to adapt criminal proceedings so they can fully exercise their rights without being exposed to new negative effects. This facilitates their participation and effective access to justice and reduces the eventual trauma and stress these victims may experience (Burton, Evans and Sanders, 2006; Sanz, 2008).
Various international guidelines describe these measures. Some examples include reducing the processing time of cases; having specialized personnel who might work in coordination with the other institutions involved in the processes in an interdisciplinary approach; adapting the spaces and equipment of courts, police stations and prosecutor’s offices to the needs of the vulnerable group; avoiding direct contact between the victim and the accused; and video recording the victim’s testimony for use in as many instances as possible, to avoid the need for further appearances (Ibero-American Judicial Summit, 2014, 2008; UN, 2005, 1999, 1985).
2. The rights of child victims of crime
The justice system faces a great challenge when addressing the participation of child victims in criminal proceedings: “Every child should be the object of special protection by the organs of the justice system in consideration of their evolving development” (Ibero-American Judicial Summit, 2008, rule No. 5). Investigative procedures and judicial interventions should consider the most unrestricted respect for the guarantees that they have as persons, as children and as victims in a situation of vulnerability8.
Regarding the rights that are intrinsic to their status as children, consideration of their best interests and the right to be heard and taken into account, as affirmed in the Convention on the Rights of the Child (henceforth CRC), are of the utmost importance9 . According to the Committee on the Rights of the Child (2013), they are the general principles that must be taken into account for the interpretation, application and respect of the other guarantees that children have10 . In this sense, it states that all decisions made during judicial interventions must “serve the primary purpose of protecting the child, safeguarding the child’s subsequent development and ensuring the child’s best interests” (Committee on the Rights of the Child, 2013, p. 23).
The concept of the child’s best interests, understood as “the full satisfaction of their rights” (Cillero, 2007, p. 134), is complex, flexible and adaptable11 . In particular situations, its content must be determined on an individual basis, depending on the characteristics and specific circumstances of the child and the particular case. On the other hand, when collective decisions impact a group of children - such as the way in which investigation processes or court hearings will be carried out - the general best interest should be assessed and determined considering the circumstances of the specific group (Committee on the Rights of the Child, 2013).
In the case of child victims of crime, the justice system has the obligation to consider their best interests in all measures or decisions that affect them (UN, 2005; Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, 2000).
Regarding the right of every child to be heard, Article 12 of the CRC states that the child has “the right to express his or her views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.” General Comment No. 5 of 2003 of the Committee on the Rights of the Child, in turn, refers to the right to be heard in item 12 of its introduction, where it “...highlights the role of the child as an active participant in the promotion, protection and monitoring of his or her rights...”. Professor Ton Liefaard adds that, in order to fully exercise this right, particular attention needs to be paid to the provision of information adapted for children (Liefaard, 2019).
In 2005, the United Nations Economic and Social Council suggested guidelines for justice in matters involving child victims and witnesses of crime. Concerning the right to be heard and to express views and concerns, the same council stated that “professionals should make every effort to enable child victims and witnesses to express their views and concerns related to their involvement in the justice process, particularly: (a) Ensuring that child victims and where appropriate witnesses are consulted on the matters set forth in paragraph 19 above; (b) Ensuring that child victims and witnesses are enabled to express freely and in their own manner their views and concerns regarding their involvement in the justice process, their concerns regarding safety in relation to the accused, the manner in which they prefer to provide testimony and their feelings about the conclusions of the process; (c) Giving due regard to the child’s views and concerns and, if they are unable to accommodate them, explain the reasons to the child.” (p. 8)
There
