The Perpetrator Brings Lawyers, While the Victim Can Only Stomp Feet in the Audience Seats

Published 26 Aug.2024 14:32(KST)

“The Victim Has No Voice in Court”

"Victims or their lawyers have to find opportunities to speak up in court because their names are not called even when they appear. It feels like victims disappear during the series of procedures the moment they report the damage."

When entering a criminal courtroom, there are designated seats for the defendant and the prosecutor, but no seats for victims. Some courtrooms have victim seats, but they are usually just one seat among the audience seats and hard to identify. This is because, in criminal proceedings, the prosecutor and defendant are considered the main parties, with a focus on protecting the defendant from criminal punishment. Despite suffering actual harm, victims are thoroughly marginalized during investigations and trials. Even in cases like the 'Sicheong Station Wrong-Way Driving Accident,' which resulted in 16 casualties, victims' voices have not received attention. Legal circles are calling for a review of victim marginalization and discussions on institutional improvements.

[Image source=Beomryul Newspaper]

Victim Protection Limited to Sexual Violence Crimes

Under current law, the right of objection for victim lawyers is guaranteed only for a limited number of crimes. First, the victim lawyer system has legal grounds for appointment only in certain laws such as the Act on Special Cases Concerning the Punishment of Sexual Crimes, the Act on the Protection of Children and Juveniles from Sexual Abuse, the Act on Special Cases Concerning the Punishment of Child Abuse Crimes, the Welfare of Disabled Persons Act, and the Act on the Punishment of Stalking Crimes. Therefore, in practice, only lawyers appointed by victims of these crimes are called 'victim lawyers,' while lawyers appointed by victims of other crimes are referred to as 'agents.' Also, while procedural participation rights are partially guaranteed for victims of these crimes, there is no legal basis for victim protection or participation for victims of other crimes such as fraud, assault, or threats, making it difficult to expect assistance even if they hire a lawyer.

The Ministry of Justice also agreed on expanding the scope of state-appointed victim lawyers and last December announced a legislative amendment to the Act on Specific Violent Crimes to include major violent crimes such as murder, robbery, and organized violence in the scope of support for state-appointed victim lawyers. However, this bill was discarded due to the expiration of the 21st National Assembly's term and has been reintroduced in the 22nd National Assembly.

Lawyers Track Case Numbers One by One

The Criminal Procedure Act requires that victims be notified of investigation results or disposition outcomes, but there is no regulation on notification of investigation progress. Also, since investigation results are not automatically notified to victims, victim lawyers often face the inconvenience of having to track case numbers individually with the police and prosecution.

The inefficiency of procedures is pointed out as an urgent issue for institutional improvement. According to a research report titled 'Current Status and Improvement Measures for Victim Protection and Participation in Criminal Procedures' published last month by the Judicial Policy Research Institute (Research Director: Researcher Mi-seon Jo), the system to automatically notify victims of investigation results via text messages varies depending on whether investigative agencies utilize it. The report states, "Despite the development of a system for automatic text message dispatch during police investigations, intermediate notifications are often not properly made depending on the police station and the investigator in charge, or only formal phrases such as 'intermediate notification' are recorded, making it difficult to grasp the progress." It further points out, "Victims cannot resolve misunderstandings or anxieties due to such responses from investigative agencies and instead develop distrust."

The report also explains, "Notifications of police decisions not to prosecute and prosecutors' non-indictment decisions are very important because they guarantee victims' rights to object and appeal. However, if victims do not receive notifications of police transfer decisions or prosecutors' indictment decisions, the facts or circumstances alleged by the victim may differ from the confirmed charges after investigation. Therefore, victims' right to information remains significant even after police disposition and needs to be notified in a timely manner."

Although victims have the right to appear and state opinions at pre-arrest suspect interrogation hearings, the urgent nature of hearing notifications often prevents effective exercise of this right. Many victim lawyers face difficulties submitting opinions without having reviewed the arrest warrant application, making it hard to fully understand the charges and reasons for detention.

Another lawyer with experience as a victim lawyer said, "Arrest warrant applications are also received late by defense lawyers for suspects, so it is even harder for victim lawyers to receive them. The only way is to directly inspect or copy them, which is not easy. In fact, responses vary by court."

Victim Lawyers in the Audience Seats

Even at the trial stage, victim lawyers find it difficult to exercise legal assistance.

There are no designated seats for victim lawyers in the courtroom, and there is no obligation to confirm their attendance, so their presence is often omitted. This discourages victim lawyers from participating in criminal trials. A lawyer with 10 years of experience who requested anonymity said, "In cases involving sexual violence, multiple victims, or socially significant cases, many people submit petitions and the court is somewhat aware of victim lawyers, so victim lawyers are sometimes guaranteed the right to speak during trials. But generally, in cases like fraud or property crimes, even if victim lawyers are present, there are almost no opportunities to express the victim's opinions during trials."

A criminal defense lawyer with experience appearing as a victim lawyer in court said, "When I raised my hand and said I wanted to speak as a victim lawyer while observing the trial from the audience, most courts allowed me to speak. But when I wanted to make a final statement at the sentencing hearing, I was told, 'Victim lawyers do not have the right to speak in criminal procedures. If you want to say something, submit it in writing later,' which was surprising."

Victims who appear as witnesses also find it difficult to state their opinions. They often do not fully understand their right to testify within the trial process and fail to utilize opportunities to express their opinions. Victims who are not witnesses have no official procedure for stating opinions, making it even harder to voice their views.

"Expansion of Victim Procedural Participation Guarantees Needed"

Legal circles suggest that existing related systems should be effectively operated to protect victims' rights and that victims' rights to state opinions should be further expanded. A high court judge said, "There is an aspect of victim marginalization in criminal procedures. Since victims are also parties to the litigation, institutional improvements are needed to allow them to voice their opinions during the litigation process."

There are also calls for improvements regarding access to case records and related information. A lawyer with experience as a victim lawyer pointed out, "Victims are in a situation where they cannot know the defendant's claims," and emphasized the need for clear regulations on access to litigation records. It has been suggested that when victims apply to view litigation records, methods such as extracting or summarizing necessary parts for provision should be considered.