Transcript The Content of the envisioned Convention

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)
7/18/2015
Prof. Dr. Gerd F. Kirchhoff, Tokiwa University
Graduate School of Victimology
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How widespread is Victim Compensation?
Region
Compens. 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
7/18/2015
Prof. Dr. Gerd F. Kirchhoff, Tokiwa University
Graduate School of Victimology
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Language used in the
Convention
The convention uses several terms when it wants
to indicate that victims should get something
remedy
2x
reparation 3x
redress
4x
restitution 12x
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.
7/18/2015
Prof. Dr. Gerd F. Kirchhoff, Tokiwa University
Graduate School of Victimology
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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”
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Prof. Dr. Gerd F. Kirchhoff, Tokiwa University
Graduate School of Victimology
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Now I go with you through the text of
the Convention.
This text describes more details of
COMPENSATION
7/18/2015
Prof. Dr. Gerd F. Kirchhoff, Tokiwa University
Graduate School of Victimology
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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
7/18/2015
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
7/18/2015
Prof. Dr. Gerd F. Kirchhoff, Tokiwa University
Graduate School of Victimology
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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)
7/18/2015
Prof. Dr. Gerd F. Kirchhoff, Tokiwa University
Graduate School of Victimology
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Compensation for ... Art.11 (2)
According to Convention, compensation is to be
paid for
(2a) treatment and rehabilitation of physical injuries
(2b) 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.
7/18/2015
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
7/18/2015
Prof. Dr. Gerd F. Kirchhoff, Tokiwa University
Graduate School of Victimology
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Funding
Art. 11 (4) sentence 1 and 2
Art.11 (4) sentence 2 1rst 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.
7/18/2015
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?
7/18/2015
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!
7/18/2015
Prof. Dr. Gerd F. Kirchhoff, Tokiwa University
Graduate School of Victimology
14
Art. 11 (5)
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.
7/18/2015
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)).
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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”
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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.
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Prof. Dr. Gerd F. Kirchhoff, Tokiwa University
Graduate School of Victimology
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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) (!?)
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Prof. Dr. Gerd F. Kirchhoff, Tokiwa University
Graduate School of Victimology
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Stakeholders’ Partnerships
Art. 12 (3)
(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.
7/18/2015
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
7/18/2015
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)
7/18/2015
Prof. Dr. Gerd F. Kirchhoff, Tokiwa University
Graduate School of Victimology
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Art.13 (1) – (3) Monitoring
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.
7/18/2015
Prof. Dr. Gerd F. Kirchhoff, Tokiwa University
Graduate School of Victimology
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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
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Prof. Dr. Gerd F. Kirchhoff, Tokiwa University
Graduate School of Victimology
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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
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Prof. Dr. Gerd F. Kirchhoff, Tokiwa University
Graduate School of Victimology
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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.
7/18/2015
Prof. Dr. Gerd F. Kirchhoff, Tokiwa University
Graduate School of Victimology
26