Third Parties and Their Formal and Substantial Participation in Criminal Justice: A Comparative-Law Analysis of Domestic Jurisdictions

This chapter deals with the legal comparison of six selected legal systems (Portugal, Spain, France, Italy, Hungary and Brazil), with the aim of examining whether domestic legislation and case law have taken into adequate consideration the protection of third parties’ rights in the context of criminal proceedings. The comparative analysis appears to be extremely useful in depicting possible infringements of third parties’ fundamental rights in criminal investigations and procedural activities and in identifying the necessary safeguards aimed at defending their interests. So far, the legal debate on third parties’ involvement in criminal proceedings has been marginal, and few domestic jurisdictions have dealt with this issue. Instead, the consideration of third parties’ role in criminal proceedings has not been systematically addressed, since the need to prevent, investigate, prosecute, and ascertain criminal offences has been given higher priority than private subjects’ interests, which, as a result, have been sacrificed. This study examines the structure of the criminal justice systems in the six chosen legal systems by comparing them at all stages of proceedings covered by the domestic reports. Specific attention is paid to the classification of formal parties and the role left to substantive parties, as well as investigative and other pre-trial measures affecting third parties’ liberties and freedom. Furthermore, the chapter discusses and compares the legal remedies available under national law for third parties during each procedural phase and evaluates the effectiveness of their safeguards.