Victim's Rights in Criminal Proceedings

In recent decades, studies in Criminology, Psychology, and Criminal Sociology have broadened the discourse on the nature and circumstances of crime, placing greater focus on the figure of the victim. This has not only enriched the academic Victimology but also stimulated legislative innovations in Brazil, granting protection and a position of significant importance in criminal proceedings to those who suffer the consequences of a crime. Current legal frameworks increasingly reflect a victim-centric approach, prioritizing their possibility to present evidence and seek reparations for harm caused by criminal conduct.

Historically, the victims were relegated to the background in a passive role during criminal proceedings. Given that criminal actions are usually public and, therefore, state-driven, victims often served as mere supporting players or even spectators. However, the concern for crime victims has been growing in recent decades, aiming to “rescue the dignity of the subject far beyond expressions of tragedy and suffering”[1]. This evolution is evident in reforms such as the partial reform of the Brazilian Code of Criminal Procedure (Código de Processo Penal “CPP”, Law no. 11,719/2008) and the recognition of civil actions ex delicto. Today, a victim in Brazil may act as assistant to the prosecution (“assistente de acusação”) or as assistant to the Public Prosecutor’s Office, ensuring the offended party’s interest in justice and guarantee the consequences of another nature, such as the right to compensation.

According to the Article no. 268 of the CPP, “in all terms of a public action, the offended party or their legal representative may intervene as an assistant to the Public Prosecutor's Office (...)”. It is clearly stated that the recipient of the offense (or their legal representative, in case of incapacity) may be considered the first person entitled to act as assistant to the prosecution, who acts solely on behalf of the offended party and not on their own behalf. In the absence of the victim this right extends to their “spouse, ascendants, descendants, or siblings” (CPP, Article no. 31). The Brazilian jurisprudence also recognizes legal entities as eligible to act as assistant prosecutors in criminal proceedings when they have been victims.

They can join at any time, as long as the decision has not become final and non-appealable. However, the assistant will receive the case as it stands, so there is no way to reverse the actions already carried out, usurping the regular procedural process for the simple reason of their entry. And the expression “at any time,” in fact, should not be understood literally, because it should not cover the investigative phase, but only when the criminal process itself is already underway.

The legislator chose to limit the role of the assistant prosecutor, giving them exhaustive powers, according to the wording of Article 271, CPP: “The assistant will be allowed to propose evidence, request questions from witnesses, add to the plea and the pleadings, participate in the oral debate, and argue the appeals filed by the Public Prosecutor's Office, or by themselves, in the cases of Articles 584, § 1, and 598.” Following the order of provision, the power to propose means of proof comprises the assistant's power to propose instruments to produce evidentiary elements in the process, and obviously to influence the magistrate's conviction.

The means are varied (forensics, cross-examination, etc.), but there can be doubts when it comes to testimonial evidence. The Superior Court of Justice has made the issue clear, establishing that the only condition is compliance with the maximum limit laid down in the law: “it is possible for the assistant prosecutor to list witnesses, respecting the limit of 5 (five) laid down in Article 422 of the CPP, since the governing legislation allows them to propose means of proof (Article 271 of the CPP), especially when the names of those witnesses have already been included in the complaint” (REsp 1503640). The assistant prosecutor also has the right to ask questions of witnesses and informants. In addition, they can take part in the oral debates requested by the magistrate, both in the common procedure and in the jury procedure, sharing the time allocated for this purpose with the representative of the Public Prosecutor's Office.

Furthermore, the assistant can act in the appellate sphere, appealing on their own behalf and challenging defense appeals. To summarize the hypotheses of the autonomous appellate activity of the qualified victim: (i) in cases of impronunciation of the accused, in crimes under the jurisdiction of the Jury Court; (ii) in cases of extinction of the defendant's punishability; (iii) in an acquittal decision, when there is no appeal from the Public Prosecutor's Office.

In many situations, the crime has repercussions on the victim's private life, which has been damaged – morally and/or materially – by the defendant's conduct. Take, for example, the case of a theft: the victim has an interest not only in the criminal repercussions (the conviction and punishment of the perpetrator) but also in the reparation of their loss (patrimonial interest). The Code of Criminal Procedure reserves some provisions (Articles 63 to 68) to deal with civil actions arising from the commission of criminal offenses. These are called civil actions ex delicto: reparations for damage caused by conduct typified in criminal law, i.e., actions to compensate the victim of a crime. Under Brazilian law, this civil action can be concurrent with the criminal action or subsequent to it. If the outcome of the criminal action is awaited, in the event of the defendant's definitive conviction, the criminal sentence becomes an enforceable title (Article 515, VI, of the Code of Civil Procedure - Law No. 13.105/2015), and the victim, legal representatives, or heirs can directly file a civil enforcement action. If, on the other hand, the option is to file the criminal action and the civil action simultaneously, the latter will have the nature of an action for determination, since it will be necessary to produce evidence in both spheres of jurisdiction.

Because to the frequent connection between the civil and criminal spheres due to the crime committed, a final and non-appealable criminal judgment becomes an enforceable title to be executed directly in the civil court by the offended party, their legal representative, or their heirs. However, the criminal conviction only becomes a judicial enforcement order once it has become res judicata in the criminal sphere. Once the conviction has become final and non-appealable, there will therefore be no action for damages in the civil court (since the facts already judged in the criminal action will no longer be discussed), but only an enforcement action, debating only – and if appropriate – the quantum of compensation. The responsibility (intent or negligence) of the criminally convicted person is the necessary seal so that, in the civil sphere, only the amounts to be paid as compensation for the damage can be discussed.

It is also possible for the criminal court to establish a minimum amount of compensation in the criminal sentence (Article 387, IV) for the victim, their representatives, or heirs. If the person entitled to civil damages disagrees with the minimum amount determined, they may, in the enforcement action that will be brought, request an amount higher than that set by the criminal court, through “liquidation to ascertain the damage actually suffered.” It has been understood that it is possible for the criminal judge to set not only the compensation for material damages arising from the crime, but also moral damages (when they exist). Recent case law takes the view that determining compensation for damages in the sentence presupposes an express request in the complaint. Fixing damages without a related request in the complaint constitutes an undue innovation in the sentence and violates the right of defense.

Considering that repairing the damage “is a means of re-establishing the legal and social balance disturbed by the offense and also a modern expression of Criminal Policy”[2] , there is no doubt about the importance of legal mechanisms to protect those who suffer the consequences of a crime. More than just being concerned with punishing the perpetrator, criminal law should aim to protect the rights of the offended party, including the possibility of compensation or reparation for property, psychological, physical, and social damage suffered as a result of the crime. All legislative provisions aimed at respecting, protecting, and valuing individuals who are victims of crime should be seen in a positive light, as they represent, in short, an evolution in the practice of criminal law focused on the importance of the victim.

[1] DOTTI, René Ariel. Curso de Direito Penal: parte geral; updated by Alexandre Knopfholz and Gustavo Britta Scandelari. 8. ed. rev., atual. e ampl. São Paulo: Thomson Reuters Brasil, 2021, p. 175.

2 DOTTI, René Ariel. Curso de Direito Criminal: parte geral; updated by Alexandre Knopfholz and Gustavo Britta Scandelari. 8. ed. rev., atual. e ampl. São Paulo: Thomson Reuters Brasil, 2021, p. 180