The Legal and Procedural Status of the Victim: The Victim as Procedural Party to Canonical Criminal Proceedings

Abstract

The Church has embraced the Criminal Law’s traditional bipolar view on the criminal legal relationship (i.e., between the State and the alleged criminal) in which the criminal action can only be brought by the promotor of justice only, so the victim can only stand as a «third party» or simply as a «witness.» The true situation of the facts makes it difficult to circumscribe the victim’s position to that of a «third party» or a «witness.» Granting the victim the position of a witness, denatures its position regarding the historic, vital, and biographical facts, by which he/she is affected direct and immediately. Likewise, denying its procedural standing as a «party» limits the victim’s rights, among others, its right of defence and of procedural contradiction, its right to information, and its right to appeal. The thesis maintained in this article is to go beyond the rule and propose a legal and procedural system that focuses on the minor, as defended by the pontifical magisterium. Both the study of Comparative Law, and particularly of Spanish law, and the understanding of the new paradigm set forth by new can. 1398 in reference to the substantive legal right, allow to propose that the victim joins the criminal proceedings as a «party» This would entail that the victim could bring a private prosecution or, at least, being recognized procedural parties’ rights through other figures such as a «secondary,» «joint,» or «subordinated» prosecution. An autonomous action to claim for damages compensation is also defended in this article pursuant to c. 128.