Mağdur Katılımlı Bir Ceza Muhakemesi Anlayışına Doğru: ABD Hukukunda Mağdur Haklarının Gelişimi Üzerine Bir İnceleme

Abstract

The participation of victims in criminal proceedings is acontroversial issue which lies at the core of the understanding ofcriminal procedure law. According to the criminal procedureapproach of the United States of America and Turkey, the crime ismainly committed against the public not the individual, therefore,only the public prosecutor has a right to decide whether or not toprosecute. British criminal law, despite its role as the origin of U.S.common law,takes the opposite approach in which the individual isalso entitled to initiate a public case before the court as well as publicprosecutor, which is called asprivate prosecution.Also, whereas the charged or the accused has rights ensured by the United StateConstitution, the victim of crime has no rights, a fact that has been criticized. The critics arguing that victims have a limited participation in the criminal proceeding has led to a new approach to provide the victims with new rights in criminal procedure.“The Crime Victims’ Rights Act of 2004 (18 U.S.C. § 3771, shortly referred as CVRA)” gives victims certain rights to participate in criminal proceedings. These rights resemble the rights listed in the “Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power of 1985”by the United Nation of which Turkey is a member. Therefore, to understand victims’ rights in theCVRAmay be helpful for Turkish criminal law to understand the rights defined by the United Nation. In that respect, this study focuses on the rights regulated in the “CVRA”and their application in the case law. Before that, the history of these rights has been put across in the light of the case calledLinda R. S. v. Richard Dandthe President’s Task Force on Victims of Crime in 1982. This study aims to show how victim participation in criminal procedure has been regularly increased throughout the history in the United States of America and to open a new window for Turkish criminal law into the awareness of the victim participation in criminal procedure which is today on the rise.Key words:Crime victims, rights of victim, the role of victims, the United States of America, criminal proceeding, participation to the criminal trial, victim impact statements.