Panel Presentation III of the Current Convention Art

Panel Presentation III of the Current Convention Art. 11 -15 presented to the Symposium “Raising the Global Standards for Victims: The Proposed Convention on Justice for Victims of Crime and Abuse of Power” February 15, 2008 by Prof. Dr. Gerd Ferdinand Kirchhoff

The current convention My task is to inform you about “Compensation” What is compensation? “Compensation” in English texts has many meanings In victimology, we use compensation as a legally provided payment by the state for victims of crime. what is the purpose of these payments? Very different To pay benefits to victims for severe injury, disability and death (Japan) To pay for expenses that are regularly incurred by victims (Texas) To pay to prevent that the victim has to live in conditions that are below a socially acceptable minimum standard (Germany) 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 2

How widespread is Victim Compensation? Region Compens. Countries with Victim + Compensation Africa 48 - Near East 17 1 Israel South Asia 8 (-) India: 1 Tamil Nadu East Asia + Pacific 25 7 Australia, Hong Kong, Japan, New Zealand, Philippines Taiwan Europe 31 23 EU except Greece, Switzerland The Americas 34 5 Bermuda, Canada, Colombia, Trinidad, USA 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 3

Language used in the Convention The convention uses several terms when it wants to indicate that victims should get something remedy 2 x reparation 3 x redress 4 x restitution 12 x restitution including reparation 1 All these terms are not defined. A great task for the lawyers among us. Please forget what you learned in the English classes: Victim Compensation is a payment of the state for a victim, based on legal provisions. 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 4

For most of us it is not unusual the state is deemed to be responsible to alleviate - as far as possible - the burden of events that are beyond the control of the victim The importance of victim compensation in everyday language is evident “compensation for comfort women” “compensation for victims of the atomic bomb” “compensation for Nazi injustice” “compensation of victims of torture” 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 5

Now I go with you through the text of the Convention. This text describes more details of COMPENSATION 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 6

Art. 11 (1) Parties shall endeavor to pay compensation – as the last resort - to (a) victims of intentional violent crimes who have sustained significant bodily injury who have sustained impairment of physical and mental health (b) the victims’ family in particular dependants of persons who have died as a result of such victimization 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 7

Remarks to Art. 11 (1) (a) and (b) In victimology we teach that crimes have three consequences, emotional, physical and financial - and we emphasize that this is the sequence in which the importance has to be checked The Convention wants to compensate victims of violent crime, that is pretty conventional and should be specified by “at least” maybe : the rule for the family is too wide maybe the authors want to include dependent family members or family members who had a right to claim support from the deceased crime victim maybe : the rule for the family is too narrow what about the dependent family members who cannot get support from a permanently severely damaged surviving victim 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 8

Eye witnesses: people who witness a crime can be severely traumatized even if they are not direct victims of the intentional crime Crime scene interveners: crime scene interveners are not included, they deserve compensation as well Problem of Art. 1 (1) 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 9

Compensation for. . . Art. 11 (2) According to Convention, compensation is to be paid for (2 a) treatment and rehabilitation of physical injuries (2 b) psychological injuries caused to victims Compensation for emotional injuries are much more frequently needed than compensation for medical bills modern compensation laws like New Zealand provide principally psychological ”first aid counseling” for victims This should be reflected as prime EXAMPLE for compensation. It should include the obligatory offer of preventive counseling in cases of severe traumatisation. 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 10

Art. 11 (3) Loss of income (pos. 1) a term from civil law, most often not even covered in car accident insurances - why in victim compensation? . special vocational impairments (the violinist looses a finger in a stabbing) should be included funeral expences, (pos. 2) loss of maintenance (pos. 3) (support and care) for dependants in case of killing of the provider or rendering him unable to provide support 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 11

Funding Art. 11 (4) sentence 1 and 2 Art. 11 (4) sentence 2 1 rst alternative Parties should fund their compensation system through general revenue the Convention does not give any preference or guidance. Art. 11 (4) sentence 1 Parties should encourage establishment strengthening expansion national, regional or local funds for compensation for victims Art. 11 (4) sentence 2 further alternatives The convention lists as finance sources general revenue special taxes fines private contributions and other sources. 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 12

Basic message: The message of the Convention is: Compensation is the task of the state! Then it is consequent to suggest strongly that the expenses are born by general tax revenue What are “special taxes”? taxes go into the general budget of the state. do the authors think of earmarking special taxes for compensation purposes? 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 13

Basic message diluted? A convention is something like a model this is what we suggest as the best solution “private funds” are simply a contradiction to the message fines go into the state budget, we should not even make the impression as if we want them to be “earmarked” for victim purposes sur - fines are very popular as revenue for victim programs later more! 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 14

Art. 11 (5) sentence 1 Compensation should be fair appropriate timely That is a consequence of treating the victims with dignity and nothing new. It is pretty empty. Art. 11 (5) sentence 2 as I understand: Necessary treatment after crime should not be delayed due to doubts who will pay the treatment. Therefore emergency coverage for treatment must be granted. The term interim payments is not correct. Should the Parties be obliged to issue a preliminary certificate for payments for medical treatment, then the convention should stipulate that. 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 15

Dissemination of Information (Art. 11 (5) sentences 4 and 5 All compensation laws stipulate that victims apply for the compensation Compensation laws all over the world are said to be not known to the victims. . Dissemination of knowledge about the existence of victim compensation and about eligibility criteria therefore are necessary. Parties should use available means to raise awareness ((5) last sentence)). 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 16

Art. 11 (6) and (7) The meaning of sentence 6 is unclear: other funds may also be established for this purpose. (6) sees a case where the national state of the victim is not in a position to compensate the victim for harm? Nowhere else “compensation for harm” is used. “For harm” is superfluous - for what else should be compensated? . What cases are meant here? It seems superfluous. (Territorial principle) “I compensate only for crimes committed in my territory” (including embassies, ships, airplanes) Compensation of non nationals? Reciprocity principle avoids that compensation is not restricted to nationals but not expanded too far. The Convention should demand this from its Parties. (7) Superfluous is the term “cross border victimization” 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 17

Part III Art. 12 – 15 deals with Implementation and Monitoring. Art 12: Implementation = translation of the Convention into national legislation and praxis. The Convention demands that Parties do the utmost to implement the Convention. 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 18

Art. 12 (1) Cooperation Art. 12 (1) the Convention uses a model of an interdisciplinary and cooperative approach in aiding victims and witnesses. Personnel in this field should be obliged to make every effort to adopt this approach (sentence 1). The Convention advocates the use of protocols for different stages of the justice process to encourage cooperation among bodies that provide services to victims and witnesses (sentence 2) (!? ) 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 19

Stakeholders’ Partnerships Art. 12 (3) Parties are obliged to ensure the building of partnerships of involved groups and sectors of society in the implementation of this Convention. The Convention calls them stakeholders. All these stakeholders shall be encouraged to contribute to the resources required for the implementation (3) sentence 2. The Parties should have the financial responsibility for the implementation. We are talking about an official duty to provide compensation. It must be clear that the state has to pay. 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 20

(4) deals with international cooperation to achieve improvements for victims in informal , administrative or judicial proceedings promote mutual assistance for improving chances for better persecution of criminals 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 21

Art. 12 (5) (6) (7) emphasizes training and gives some details important is the avoidance of secondary victimization. excellent! Information, advice and assistance shall be provided for victims and the public (6) international cooperation in implementation of Convention and in achieving more effective protection of victims interests in criminal proceedings (7) 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 22

Art. 13 (1) – (3) Monitoring Efficiency+ Effectiveness Is the ratio between input and implemented product ok? Is the implementation really achieved Periodic review evaluation of legislation, regulations and procedures through research (!) There should be a national authority who receives the reports etc. State parties should disseminate knowledge about the provisions contained in the convention by appropriate and “active” means. 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 23

Art. 14 Committee on Justice and Support for Victims of Crime and Abuse of Power 10 experts elected by the Parties (1) qualifications high moral standing recognized competence The Convention is pretty detailed about the way the committee is elected. (a) – (f) It is to be financed from the general budget of the Secretary General (j). The General Assembly shall decide about the emoluments of the Committee members emoluments is a word from derived from the Latin “emolumentum” = miller's fee for grinding grain. Today it is used to signify any income derived from office, rank, employment, or labor 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 24

Art. 15 contains norms rights of the committee obligations for Parties reports requests for further information on site visits – to assess progress made in the implementation of the Convention 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 25

Finale of Part III My task was to cover Articles 11 to 15. “Mr. Chairman, mission completed”. Thank you for your time and for your attention. 3/19/2018 Prof. Dr. Gerd F. Kirchhoff, Tokiwa University Graduate School of Victimology 26