Transcript Victim Compensation by Prof. Dr. jur. Gerd Ferdinand Kirchhoff Tokiwa Daigaku Mito Japan

Victim Compensation
Presentation for the Lawyers’ Commission on
Compensation Reform in Japan
by
Prof. Dr. jur. Gerd Ferdinand Kirchhoff
Tokiwa Daigaku Mito Japan
What do we do in this
presentation?
 General ideas
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Why compensation for certain crime
victims only? AND NOT FOR OTHERS?
Goal of crime victim compensation
How to finance?
 Requirements for a victim oriented
compensation system
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Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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Terminology in Victimology
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 Compensation
 Restitution
 Who pays it?
 Who pays it?
 The State
 The Offender
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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This Terminology is important
 In texts, you find a different use of the word
“compensation” – the victimological distinction between
restitution and compensation is not made, especially in
the early days
 everyday language is not very correct

It uses
 Reparation or Indemnification or restoration

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interchangeably
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Restitution
Compensation
Little help in the search for clarity
legal language is quite confusing
authors do not differentiate like scientists should
One of the rare examples where social science
terminology is more exact than law
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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Why should we compensate?
 Several theories advanced

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“Ex gratia-theory”
Victim compensation is paid “Ex gratia”
core sentence: It is an act of grace for the
benefit of the victim
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Victim does not have a legal right to receive it
State gracefully awards money
 In the 21rst century, such a justification is
completely out of date!
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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Why?

Consequence of State’s Monopoly to Use Violence

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State acquired the monopoly to punish
Victims are not permitted to use violence
From this, state has the obligation to protect citizen
State is liable if protection fails
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Victim’s Sacrifice
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Practically none - sense since no state compensates for
all crimes
States are no longer police states. They respect basic
freedoms
While everyone is threatened by crime, victims pay a
special toll which others do not pay
This is like the liability of State for vaccination accidents
“Special sacrifice” must be honored by compensation
paid to victim
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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Why?
 Social solidarity

Society has to respect human dignity of
victims
 By
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showing solidarity with victims
State must grant that victims do not get
socially so much damaged that they fall below
the social minimum standards of decent living
 if victims cannot get restitution
 if no other remedy is open for them
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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What?
 State pays for certain cash expenses
victims regularly have

TEXAS
 State pays
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for medical treatment
for rehabilitation
medical rehabilitation is (partly) impossible,
monthly rents for the living support of the
(needy) victim
 Germany
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Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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Principles and Political
Decisions
 Lawyers usually know the order of the existing
social system


Principles which justify the existing order
Lawyers in the service of the existing order
 Serving the interests of the powerful
 Therefore changes are rarely based on legal
considerations
 It takes a political decision to act

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Only if this political decision is made, law can guide
ideas how to translate the decision into action
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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Aim of Victim Compensation
 Texas:

To compensate the innocent victim for
certain cash expenses
 Germany:
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To save the victim from declining under a
certain social level
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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How to finance compensation?
4 slides
 Taxes

State pays from the general tax budget

e.g. Germany
 Extra Income

Gains of casinos and other gambling yields
e.g. Poland

(Germany partly in other areas of social welfare)
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Advantage
 Savings for tax
Disadvantage
 Limited funds +
 Morally questionable income?
 Not predictable +
Gains from Extra - Stamps
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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How to finance?

Surplus Fines
 Canada,

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USA
Increase of 10% on all fines
Advantage
 Relief for Finance Minister
 Causation Principle
Disadvantage
 Limited funds
 Punishment corresponds to the degree of
guilt
 and not to financial needs of the state
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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How
 Confiscation of criminal gains
 Especially:

Notoriety-for-profit
 Profits
of the sale of the publication rights of
the story concerning the offence

Means of Restitution Surrogates
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CVC pays to the victim
Later the offender is caught and sentenced
Judge can order that the offender has to
refund the CVC as far as CVC has paid to
victim
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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 Subrogation
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CVC pays to the victim
Later the victim takes the offender to civil
court and is successful in getting a
restitution sentence
Then the victim must repay to the CVC
what this agency has paid to the victim
Criminal offence, if victim does not indicate
this to the CVC (Texas)
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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 Germany:
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cessio legis:
If CVC pays, the right to claim restitution of
damage is transferred by law to the paying
CVC
The victim can no longer claim restoration
of damage from the offender in civil court
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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Demands
 A modern compensation system
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It should be simple
It should be open to judicial review
It should help victims to cope with their
damage
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T.I.V.I.
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The naïve view of victims
damage
 There are crimes described in the criminal law,
protecting certain legal goods
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These norms provide punishment for the damage
of certain legal goods such as
 Physical integrity
 Sexual self determination
 Property
Cost of reparation of these damages top legal
goods of the victim constitutes the damage
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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Victimological view
 Victimizations are invasions into the self of the
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victim
Rank order of severity
Victimizations destroy fictions, kind of fairy tales
we tell ourselves about us and about life
we need these fictions to socially function well
These fictions must be reconstructed or
adjusted to enable social functioning
“Collateral damage” must be restored
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Restoration of health: Medical bills
Restoration of income: social costs
Restoration of safety: protection costs
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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Three levels of damage
 Emotional damage
 Physical damage
 Material damage
 Three dimensions of damage has to be
checked in each and every
victimization!!!!
 People trained exclusively in law tend to
see only material damage
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Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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German Compensation Laws
in a Nutshell
 1976 Victim Compensation Law
 Who can claim?
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Victim
Dependent survivors
 Children
 Widows
 Parents
when entitled to be supported by
victim
 (to be brides and their offspring from the
victim)
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T.I.V.I.
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German Compensation Laws
in a Nutshell
 Which agency is to administer CVC?
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A new one?
Existing one?

War Victim Compensation Administration
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Advantage:
 Extensive experience
 Juridical review created a body of knowledge in this
field of law
 Very highly esteemed administration
 Free capacities since war victims become less and
less numerous the longer the war is finished
Disadvantage
 Level of acceptable damage high due to war
standards
 No special victimological knowledge in administration
or in jurisprudence
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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Who informs the victim?

Victimologists claim that citizens are not sufficiently informed about
CVC

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are citizens informed about other laws?
Germany:
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Norms who describe concretely who has to inform, are missing,
there are norms describing the authority over definite parts of the whole
process
Clear ascription of tasks is needed
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Police
Prosecutor
Court
There is a social system of general compulsory health “insurance” (chi)

contributions to finance it come half from the employer, half from the
employee
currently the system is under constant flak of modern “manager” ideology

chi inform the victim and request applications
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promote private initiative! Kill socialistic pampering!
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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Alternative:
 Texas:



Victim has the right to demand information on CVC and
right to get information on CVC (N)
Posters in Emergency Rooms of Hospitals (N)
Police
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Prosecutor
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Informs and has application forms
At first contact victim must be informed in writing (N)
Creation of a Victim Assistance Coordinator
Within ten days after accusation is sent to court, help in
applying for CVC must be offered N (!!)
Creation of a Victim Assistance Coordinator
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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What do they pay?
 Medical treatment
 Full rehabilitation efforts

Extensive and excellent system
 If damage severe enough:
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Monthly installments
Including medical treatment
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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How does it work?
 Victims send in Application Form


Or CVC sends application form to victim,
inviting application
Role of Compulsory Health Funds CHF
 (Krankenkassen
./. Krankenversicherungen)
 Health Insurance ./.Compulsory Health Funds
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T.I.V.I.
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Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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 Registration and Investigative Requests


Routinely from victim: certificate of
residence and copy of ID or passport
Routinely from Health Cashier and
hospitals:
 Medical

Routinely: from Prosecutor or if applicable
from Police or Court:
 “Send
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history, diagnosis
original file”
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T.I.V.I.
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 If administrative case worker believes, the case
is ready for decision, s/he hands the file to the
decider

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Usually this is the department chief, lawyer
Decides whether in principle there is compensation
to be granted or not
 Legal abstract decision excluding medical proof
 Concrete questions to the physician
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Usual: How much LCGE?
LCGE=Loss of the capacity to be gainfully
employed
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T.I.V.I.
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 Medical department


Usually decides using information collected
in the file
Otherwise invites victim for a medical
checkup
 Either
by in-house physicians
 Or by external experts

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THAT TAKES TIME, TIME, TIME ….
At the end the physician informs the
department head, the decider
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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 Now all evidence is collected, and
decider – as a jurist – decides


Usually following the suggestion of the
physicians
Occasionally decision deviates from the
suggestion of the medical department
 Decision is sent in writing with reasons
to applicant
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Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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What kind of decisions?
 Claim granted
 Claim partly granted:
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Damage by crime stated
Medical treatment granted
Rest rejected
 Claim rejected
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No crime
No cooperation of victim
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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What does the CVC decide
 “You have suffered an injury from a violent
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crime against you which happened on the 12th
of May 2004 and which is described like this:
Loss of both under- arms from above the elbow.
The LCGE is 100%.
The decision gives rights from a said date on.
The LCGE percentage is stated.
You have the right to demand medical
treatment.
Reasons: …..
Information on the right to appeal this
decision….”
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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 “You have suffered an injury from a violent
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
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crime against you which happened on the
(date of the victimization) and which is
described like this:
Healed fracture of nose without compensable
consequences
LCGE is set to 0%
Medical treatment costs are compensated from
date of the incident.
In all other respects the claim is rejected.
Reasons…...
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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
Information about appeal possibilities:
 usually at the end of the decision;
 “against this decision you have the right of
contradiction ….
 Contradiction within 4 weeks after victim receives
the decision (formal proof)
 “Contradiction” leads either to a correction of the
decision by the decider
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Or decider gives the file to his superior.
If superior holds the decision:
 Contradiction Decree
against this, appeal to the court is given.
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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 Contradiction decree with 3 parts
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Factual basis of the decision
Legal basis of the decision
Information about appeal against this
decision to the Court in …. Within 4 weeks
after receiving this decree.
 In rare cases, the victim goes to court
with a clear demand
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More about the court proceedings? Please
ask ….
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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Research in Victim Compensation
 How does it work in real life?
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Evaluation Research
Not normative legal study but social
science research
1976 – 1981 in North Rhine Westphalia
2
years of applications
 11 offices in the state
 Total 2800 applications
 Describe what we did
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T.I.V.I.
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Results
 Most victims were informed by the local office of
the CHF

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Health insurers compensation law
That is a shortcoming:
 It abuses the victim for administrative purposes:
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Problem: No cooperation of victims
Problem: Unnecessary claims
SUBSIDIARY PRINCIPLE
 Payer of last resort
 Priority payer with the right to get refunded by
victimizer or other sources
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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Results: Medical treatment
compensation …..
 Right of restoration for medical bills and
medication in past is an empty, fruitless right in
most cases
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Health coverage system in Germany:
 90% by virtue of a work contract
 7% covered by private insurances
 2% free medical care as members of police or of
defense forces
 1% Federal Social Welfare Coverage
Most medical bills are paid
CHFO motivated claims reduced
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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Results: CVC and Physicians
 Monthly Installment Compensation fully
or partly?

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According to the Loss of the “Capability to
be Gainfully Employed” (LCGE)
MdE Guidelines
Derived from War Victim Compensation
High threshold:
 25%
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Loss of CGE
Has to last 6 months at minimum
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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Physicians powerful role
 How much LCGE, is a decision of physicians
 Physicians have professionally difficulties with
emotional damage
 In addition, system culture against emotional
damage
 Consequence:
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No compensation for emotional damages
 Rape
 Child abuse
 Domestic violence
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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Emotional damage neglected
 Problem:

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Lawyers traditionally are unskilled in seeing or
validating emotional damages
War Victim Compensation history
Learned inability of physicians

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Psychologists seen as unwelcome competitors
Discrimination against psychological treatment as to
be paid by traditional Health Cashiers
Closeness to criminal justice system
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Which needs victim suffering to justify
punishment
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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Interim Result
 Very good provisions for the 3%


Victims
Survivors
 Possibility of Deterioration Claims

This is the reason for the decision:
 You
have been a victim …
 Slow for needy victims
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Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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 Too many applications which ended in
an administrative refusal to pay


77% for formal reasons
20% Damage but no damaging
consequences
 LCGE
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not high enough
3% “who made it to monthly installments”
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T.I.V.I.
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Triangulation of problems
Basically these questions came out of the
first evaluation research
 How does the compensation system
recognize emotional damages?
 How does it pay for treatment for
emotional damages?
 How are victims quickly informed?
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T.I.V.I.
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The players ….
 Cologne University Institute for
Psychotraumatology

Gottfried Fischer
 Cologne State Police

Commissariats for murder, assaults, arson,
etc. have contact to personal victims
 CVC

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pays compensation and receives claims
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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 Police informs victim of availability of preventive
counseling



All victims? No
Only those victims in danger of severe psychological
damages
Checklist of Probability of PTSD
 University developed



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

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Easily applicable by police
Seven point threshold
If threshold value reached, counseling is offered
if victim agrees:
Information goes via email or fax to University
Date of counseling is offered via email or fax
No waiting lists
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T.I.V.I.
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 Psychologists specialized in psycho –
traumatology evaluate the victim
according to the likelihood of PTSD
 CVC is informed and financial coverage
requested
 8x 90 minutes sessions are granted to
be paid by CVC
 In this time, the official application form
has to arrive at the CVCOffice…
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T.I.V.I.
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Demand:
 Priority for emotional damages

New generation of compensation systems:
 Abolishment
of the traditional system with
priority of financial compensation
 Priority for treatment of emotional damages
 Abolishment of crimes qualifications



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Crimes of violence
Crimes with personal injury
Crimes which cause emotional or physical
injury resulting in special financial losses
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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 Thank you for your patience!
 Prof. Dr. Kirchhoff
5/23/2016
Prof. Dr. Kirchhoff, Tokiwa Daigaku,
T.I.V.I.
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