On the occasion of the adoption, today (11/11/21), by the Parliament of the draft law of the Ministry of Justice entitled “Amendments to the Criminal Code and the Code of Criminal Procedure”, Diotima Center voices its concerns on the amendment of Article 228 of the Code of Criminal Procedure (Article 118).
According to the proposed amendment, the procedure applicable to the examination of victims of trafficking in human beings and minors is extended to the examination of victims of all sexual crimes, including rape and sexual harassment in the workplace, as well as other acts (e.g., sexual abuse, etc.).
Under the new provision, a psychologist or psychiatrist will be appointed and present as an expert, and will prepare the victim(s) for examination by the investigating authorities (e.g., police, investigating judge), using the appropriate diagnostic methods and will decide on her/his or her perceptual ability and mental state.
Secondly, the testimony of the victims for the aforementioned offenses will be drafted in writing and recorded in a digital audiovisual medium with the provision for the digital projection of the testimony or the reading of the written testimony at the hearing to replace the physical presence of the victims/survivors in court.
Finally, for the victims of the above acts, a special social survey is required to assess their personal characteristics, their relationship with the offender and the circumstances of the crime, the degree of harm they suffered as well as the circumstances of the crime in order to avoid the risk of re-victimization (as stated in the analysis of the consequences of this provision)[1]. In this case, the social survey could also be carried out by social workers employed by the municipalities or regions.
The extension of the above provisions to victims of crimes, such as rape and sexual harassment in the workplace, lacks a justification, given that these provisions concern minors and victims of trafficking in human beings and have been introduced into the country’s legislation in compliance with international texts (e.g. in accordance with Law 3625/2007 “Ratification, implementation of the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography and other provisions”), with the aim of ensuring the protection of victims who are demonstrably and by definition vulnerable.
On the contrary, victims of rape or sexual harassment in the workplace cannot be considered vulnerable to the outset, nor are they vulnerable solely because they are victims of gender-based violence, so as to justify their testimony under different and allegedly protective procedural conditions. The added provision, therefore, raises concerns about the purpose of this legislative amendment.
Moreover, the assessment of the perceptual ability and psychological state of the victims of these acts before they testify, as well as the conduct of a social survey, in addition to not being justified on the basis of the need to protect them as vulnerable, as is the case with minors and victims of trafficking in human beings, degrades the validity of their testimony, implicitly questions their ability to perceive and evaluate what happened to them and to report it, as opposed to the victims of other criminal acts of the criminal code.
More importantly, however, with the new provision the legislator chooses to add the performance of a mandatory medical procedure, as noted in the relevant report of the Scientific Service of the Parliament on the draft law, to all victims of rape and sexual harassment in the workplace, without individualized judgment, which violates their right to recognition and respect, but also their right to undergo only the absolutely necessary medical procedures in the context of criminal procedure, in accordance with the provisions of Directive 2012/29. 2
The proposed amendment weakens and entrenches with useless protective procedural grids the oral testimony of the victims at the hearing, not even at their request, with the result that the victims, although present in the criminal trial are regarded as being “in absentia”, to the benefit of the defendant.
The aforementioned provisions, in addition to the procedural nullities they will create, call into question the ability of judicial officers to assess and evaluate the testimonies of victims/survivors, thus interfering with the work of justice. They also question the fact that gender-based violence can be experienced by any person regardless of their state of mental health or sanity, as well as the victim’s ability and mental/cognitive constitution to talk about what they have suffered if they are not previously evaluated by a qualified psychologist or psychiatrist. In other words, by attempting not to violate the rights of the abuser-defendant, the legislator risks violating the process of administering justice when from the outset it calls into question the validity and credibility of the testimony of a victim of gender-based violence.
11/11/2021, Athens, Diotima Centre
[1] p. 30, https://www.hellenicparliament.gr/UserFiles/c8827c35-4399-4fbb-8ea6-aebdc768f4f7/11767468.pdf
[2] Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support, and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA.
