Non-Adversarial Justice in Mixed and Hybrid Systems of Criminal Justice in South America: Victim Rights in Brazil

Tyrone Kirchengast1

1 UNSW Law, University of New South Wales, NSW 2052. Email: t.kirchengast@unsw.edu.au

Brazil is a federal republic constituted by twenty-seven states, including the federal district of Brasilia. Brazilian law has been influenced by various legal traditions, including Portuguese, French, Italian and German civil law, such that it now represents a system of mixed or hybrid legal tradition. The criminal justice system of Brazil borrows from the continental European tradition but their legal system has also been substantially developed through the ratification of human rights instruments and norms. Access to justice for victims and accused remains a significant challenge, however, in the context of a justice system which provides rights and powers but offers limited welfare and support to access those rights, at least evenly across the population. Nevertheless, trial rights for victims in Brazil extend far beyond those offered in adversarial or even some Continental European jurisdictions. Victims now enjoy the right to counsel; to submit new evidence at trial, including non-binding material; to directly question witnesses; to propose an amended charge where a matter proceeds before a jury; to make submissions and engage in oral argument across all phases through to sentencing; to provide reasons in favour of an appeal, or respond to the defence’s request to appeal; to file interlocutory or supplementary appeals; to make an open or closing statement; and to seek reparations or compensation during sentencing. This paper considers the role of the victim in the criminal justice process of Brazil and demonstrates how lessons may be learnt on the empowerment of victims from the quasi-adversarial, mixed and hybrid context of Brazil’s Southern justice process.

Biography:

Dr Tyrone Kirchengast is a Senior Lecturer in the Faculty of Law at UNSW, Australia. Tyrone is admitted as a legal practitioner of the Supreme Court of NSW and is a solicitor and barrister of the High Court of Australia. Tyrone’s principal teaching and research interests are in criminal law and procedure and his publications focus on the integration of victims in criminal law, comparative criminal justice and the development of institutions of criminal law and justice. He has published widely on the integration of victims in the criminal trial. His recent work examines the role of victim impact statements in homicide sentencing; the rise of private counsel for victims of crime; victim rights as human rights in international and domestic law; the emergence of enforceable victim rights; criminal law reform; and the normative aspects of adversarial justice.

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