9/15/2015 Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute 1 Restitution and...

04/19/23Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute1

Restitution and Compensation

Presentation to the

Tokiwa UniversityExchange Student Program 2011/2012


Theorem of Divided Territory

Criminal Procedure

State

border line

Offender

Rights of the State

(Prosecutor)

Human Rights of Defendant

(Procedural Rights)

204/19/23 2

Theoretical Fundament for the Position of the Victim in Criminal Justice System


Justicia repressiva (traditional) Criminal law maintains social order by repression Center is on balance: The balance has to be between state and offender - not offender and victims Right to be treated in respect for the dignity of the victim is

consequence of Human Rights (Italy 1922) . Special care - obligation of judge and prosecutor to protect the

victim against “secondary victimization in the criminal justice system”

Primary victimization Secondary victimization - avoid secondary victimization as far as possible!!!! you cannot go far enough with this demand! Advantage of this approach: EXPLAIN The concept of “Conflicts as Property” Conflicts are properties They are owned and exploited by the owners of the system The “owners” administer the conflicts in their own interest If you are looking for reforms – take this into account!!! (How?)

Reparation


After criminal Proceeding the victim has “nothing”! Why? Crimes are seen as offences against public order (state)

Victimizations are invasions into the self of the victims, causing damage in three dimensions. This damage remains - in spite of punishment.

To counteract, two institutions have been developed Restitution

the offender somehow repairs the damage Compensation

The state pays instead of the offender Both institutions have been developed by Italian reformers and have been

introduced into the Spanish influenced legal culture Result is a complicated “Derecho Victimal” (Manzanera)

Civil Law Public Law

Help for the victims Procedural Criminal Law Criminal Law


Is punishment in the interest of the victim? - Differentiate:

in our usual societal reaction to crime, we offer nothing to victims (except revenge and a twisted kind of satisfaction)

The consequences of punishment serve at best the interest of social control. Self understood is that the state punishes in its own interest.

Fines are an important contribution to the state budget.so important that in traditional systems fines are

collected before the state advises the victim to seek civil law reparation against the sentenced offender. prison terms can be put on probation. why not fines? Recently, some modern countries made it

possible that fines are put on probation. These are some problems in traditional

justice systems.

Restitution 3


Consequence of “Fines on Probation”:Condition of probation would be: “Repair the

damage of the victim”.The state collects the fine only when the

offender did not repair the damage of the victim.

The state would monitor the conditions of probation as usual.

If the offender repairs the damage of the victim, then the fine must not be paid.

Restitution 4 as criminal sanction:


“Restitution” - an additional criminal sanction (restitution).

But that is for many people not acceptable. They are caught in the law’s own logic: The offender must repair the damage in any

case - as a civil law consequence - what then is the criminal law punishment? He will essentially “get away with his crime” - there will be no criminal sanction.Often in a cynical way unrealistic“ a joke”

Restitution 5


In the criminal justice system:Restitution Sentence: the offender is

sentenced to repair the damageRestitution means, the offender (in the

criminal law system) has to pay a certain sum to the victim.

This sum must be fixed criminal law demands fixed punishments.many countries have “ indeterminate sentences”

They are against the principles of criminal law.

Restitution 6

Why are restitution orders so rarely used?


Restitution is believed to be civil law.“Restitution in criminal law” is a wrong solution of the

legislator.Civil law is not the field of the criminal law judge.Why should I do his job?

Restitution orders would have to be enforced by the criminal court/prosecutor -

Why should “we” give the victim the benefit of enforcing victim’s reparation right “for the victim” - while all other victims have to seek civil law sentences and enforce the sentence on their own? Take seriously the caretaking task of judge and

prosecutor (to protect the victim)

Restitution 7

Civil Law Claim in Criminal Procedure


Adhesion ProcedureSome legal systems allow the criminal

law judge to decide at the end of the proceeding about uncontested civil law claims (reparation of damage according to civil law norms) in the criminal proceedings

The reason is to save time and costs for the victim to get a title (for compulsory execution) - here is an easy way to provide such a title.


Although the restitution order is made by a criminal court as part of an offender’s sentence, it is similar to a civil order in some aspects.

If the offender does not pay the amount ordered, the victim can file the order in the civil court and use civil enforcement methods to collect the money.

This is the rule in Canada, Germany, France.

Often this is NOT successful.Understandably, under these conditions

legislators and practitioners are reluctant to use restitution as a criminal sanction.

Restitution 8 especially: Partie civile


France: not only at the end of a criminal proceedings but at any time, the civil claim can be brought into the criminal proceeding.

There are however limits:unnecessary delays in closing the criminal

casecivil claim only when offender is sentenced

and judge finds it adequate to give restitution order in addition to punishment.

The ability of the offender to pay a restitution order will be taken into consideration.

Restitution 9

Restitution Orders


In total, the attempts to vitalize restitution orders, have been met with resistance on the side of the judgeswhy should I do the job of my civil law

colleague? on the side of the prosecutor

don’t we have a civil court? Why should I now get involved?

on the side of lawyerswhen fees are not adequately regulated.

Restitution 9

Restitution as independent criminal sanction


The current unsatisfactory status of restitution orders are connected with their civil law character

Therefore victimologists demand the introduction of a restitution sentence in criminal law as an independent sanctionEnforced like a criminal sanction.

http://books.google.com/books?id=XovETqietDIC&pg=PA65&lpg=PA65&dq=Lois+Forer+Philadelphia&source=bl&ots=ukp5ZBaufD&sig=uKINNfp_g0o4wJlu-MMfeCoxRDA&hl=en&ei=yv30SsfYI5iI6wOgweUQ&sa=X&oi=book_result&ct=result&resnum=5&ved=0CBEQ6AEwBA#v=onepage&q=Lois%20Forer%20Philadelphia&f=false


“Restitution can be used as a sanction for serious offenders and for violent offenders. Extensive use of restitution for serious offenders by Judge Lois Forer in the Philadelphia Court of Common Pleas shows that such offenders can satisfy restitution orders while achieving recidivism rates at least as good as those comparable offenders who went to prison.

(Weitekamp, E. (1995) : Restitution in Philadelphia. In: Tonry, M. and Hamilton, K. (eds.) Intermediate Sanctions in Overcrowded Times. Northeastern University Press 1995, p.65 - 68

Terminology in Victimology


Compensation

Who pays it? The State

Restitution

Who pays it?

The Offender

Both systems are based on a law


Texas 1979, Crime

Victims’ Compensation Act,

Compensation to Victims of Crime Fund and the Crime Victims’ Compensation (CVC) Program.

Germany1976

Opferentschaedi-gungs - Gesetz

Federal and State Budget allocates money to compensate some victims of crime,

Victim Compensation 2 Aim of Victim Compensation


Texas:To compensate the innocent victim for

certain cash expenses (see below)Germany:

To prevent that the victim declines under a certain social level due to consequences of violent crime

Victim Compensation 3 What is paid?


State pays for certain cash expenses victims regularly have TEXAS

State pays for medical treatment for rehabilitationIf medical rehabilitation is (partly) impossible,

monthly rents for the living support of the (needy) victimGermany

Victim Compensation 4

How to finance compensation 4 slides


TaxesState pays from the general tax budget

Extra IncomeGains of casinos and other gambling yields

Poland(Germany partly in other areas of social

programs) Advantage

o Savings for tax Disadvantage

o Limited fundso Morally questionable income?o Not predictable

Gains from extra - stamps


How to finance compensation


Surplus finesCanada, USA

Increase of 10% on all finesAdvantage

o Relief for Finance Ministero Causation Principle

Disadvantageo Limited fundso Punishment according to guilto Not according to social tasks of the state




Confiscation of criminal gainsEspecially:

Notoriety-for-profitProfits of the sale of the publication rights of the

story concerning the offenceRestitution surrogate means

CVC pays to the victimLater the offender is caught and sentenced Judge can order that the offender has to repair the

damage caused to the CVC




SubrogationCVC pays to the victimLater 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)

German Compensation Laws in a Nutshell


1976 Victim Compensation LawWho can claim?

VictimDependent survivors

ChildrenWidowsParents when entitled to be supported by victim(to – be - brides and their offspring from the victim)

Texas


The primary purpose of the Fund is encouraging greater victim participation in the apprehension and prosecution of criminals and reimbursing innocent victims for certain out-of-pocket expenses incurred as a result of violent crime.

Texas: who is eligible?


Crimes involving "criminally injurious conduct,“ sex offenses, kidnapping, aggravated robbery, assaultive offenses, arson, homicide and other violent crimes in which the victim

suffers physical or emotional harm or death. The following motor-vehicle-related crimes are also

covered: Failure to Stop and Render Aid, DWI, Manslaughter, Criminally Negligent Homicide, Aggravated Assault, Intoxication Manslaughter and Intoxication Assault.

Germany: who is eligible


Victims of intentional violent crimesNot:Traffic offences

Except: car is used as a weapon


What is covered? Germany


General clauseMedical treatmentFull rehabilitation efforts

Extensive and excellent system If damage severe enough: Loss of Capability to be Gainfully Employed (LCGE)

Monthly installmentsIncluding medical treatment No time limit

Victim compensation: Texas: What is covered?


medical, hospital, physical therapy or nursing care psychiatric care or counseling loss of wages due to medical treatment or participation in, or attendance at, the

investigation, prosecutorial and judicial processes care of a child or a dependent loss of support funeral and burial expenses crime scene clean-up replacement costs for clothing, bedding, or property seized as evidence or

rendered unusable as a result of the investigation attorney fees for assistance in filing the Crime Victims' Compensation application

and in obtaining benefits (TCCP, Art 56.43) loss of wages and travel to seek medical treatment one-time relocation expenses for domestic violence victims or for those sexual

assault victims attacked in their own residence

Victim Compensation 10A typical decision ... Germany


“You have suffered an injury from a violent 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 ellbow.

The LCGE is 100%.The decision gives rights from 8th of August

2003 on.The Inability to be gainfully employed is given.You have the right to demand medical

treatment.Reasons: …..


“You have suffered an injury from a violent crime against you that happened on the 12th of May 2004 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 application.In all other respects the claim is

rejected.Reasons…...

Victim Compensation 11 Germany


What kind of decisions?


Claim grantedClaim partly granted:

Damage by crime statedMedical treatment grantedRest rejected

Claim rejectedNo crimeNo cooperation of victim


Results: Medical treatment compensation …..


Right of compensation for medical bills In Germany this right is unimportant:

Health insurance system in Germany:90% by virtue of a work contract 7% covered by private insurances2% free medical care as members of police or of

defense forces1% Federal Social Welfare CoverageMost medical bills are paid

In Texas this right is an essential part of social security for victims!This is an example how much you must take

into account before you compare!!!


Physicians Powerful Role


How much Loss of Capacity to be Gainfully employed is a decision of physicians

Physicians have professionally difficulties with emotional damage

In addition, system culture against emotional damage

Consequence:Difficult to compensate for emotional damages

Rape, Child abuse, Domestic violence


Result Interim Facit:


In Germany, 3% of all applications result in monthly installmentsVery good provisions for the 3%

Victims and Survivorsoften never discussed in international

literature:Possibility of Deterioration Claims

This is the reason for the decision:You have been a victim …

Slow system for needy victimsbut here steps in the general social security

system for all citizen

Victim Compensation 15Requirement for a modern compensation system


Since all social systems are vastly different, such a requirement cannot be stated generally.

Victims need different provisions in different systems....

In industrialized modern nations, this seems to be the future:

Priority for emotional damagesNew generation of compensation systemsPriority for emotional damage: prevention of

development of PTSDAbolishment of the traditional system with

priority of financial compensationPriority for treatment of emotional damagesPay for counseling Compensation systems may become independent

from crimes qualifications, basically for all accidents and crimes with

emotional/physical severe damage.


Complaints The system is not known to victims(UN Declaration: Information)The application forms are too complicated

(see attachment for the Texas form)

Mediation 1


Restitution orders cover financial damage. BUT: The damage of victims is threefold:

emotionalphysicalfinancial

Main disadvantage is emotional damage not taken into account restitution orders are part of formal social control. informal social control is much more effective. (Explain) Therefore: reclaim the means of informal social control for

the criminal law social control.A wise judge does this all the time, and a wise prosecutor as

well - but that are informal side effects.

Mediation 2 Victim Offender Mediation


There are attempts to try informal control mechanisms before the formal have to be used.This is a question of constitutional rank!explain

What is needed? the criminal law must include a norm that permits judges

and prosecutors to take the behavior of the offender after the crime into account when meeting out punishment.

If offender behaves “positively”, then reduction of punishment or dismissal of the case.

Positively can mean that offender tries to “repair” all damages the victim has suffered.

Positive behavior can only be shown voluntarily - it cannot be forced upon the offender. That is granted. If the offender wants top have a crimkinal proceeding with sentencing at the end - ok.

Mediation 3


Most offenders would like to avoid a sentence .

Most victims like to avoid a criminal proceeding if they get to know that the criminal law does nothing “for them”. Explain.

In all systems, the prosecutor has a file that is the document for his decision: prosecute!

Mediation 4


How does the alternative work?NGO is licensed by prosecutor to handle

cases alternatively.The mediation program (MedProg):

1. Prosecutor sends case to medprog with the request to try to mediate the conflict between offender and victim AND to report back to him.

Medprog tries mediation. Feedback to prosecutor.(Prosecutor dismisses the case)

Mediation 5


MedProg has these steps:1. Info to victim

criminal case results only in punishment, not in a title for your damage.

Maybe it is more important for you to get the damage restored?

MedProg can try that if you agree to work with us.2. Info to offender

criminal case results in punishment. in addition you must repair the damage.

We can open an alternative: you repair the damage and most probably you do not need to go to criminal court.

Mediation 6


3. Infos result in feedback:is feedback negative by one party - no

alternative way, feedback to prosecutor.is feedback positive by both parties,

then alternative is possible.4. MedProg tries to find out what the

victim wants to see happen often an apology by the offenderand the reparation of damage

Mediation 7


5. MedProg finds out what offender is willing to do to repair the emotional and the financial damage.

6. If needed, a round table discussion can be managedBut many other ways are possible

Mediation 8 Important Elements


for all participants: voluntary participation, no pressure.

neutrality of the mediator: The mediator is neither representative of victim nor representative of offender.

Mediator is neutral,but that is unrealistic. Why?

the nature of the beast NGO

Mediation 9 Advantages


1. for victim:Activity instead of passivitycentral,position for the victim, not

„peice of evidence“ victim can determine what is to be

discussed in the mediation processit can describe the emotional damageit can avioid a civil proceeding and gets

the damage easier repaired.

Mediation 10


5. it is possible to get to know why offender did did the crime.

6. It becomes a more positive image of his role no cooperation in punishing the offender!

7. Victim gets answers to questions that never will be answered in criminal proceedings

Mediation 11


Advantage for Offender 1. no punishment possible! 2. o. can gain is=nsight in consequences of his behavior 3. o. has opportunity to explain his „reason“ for the offense 4. Offender is actively involved, is not passive 5. quick end of the consequences of his actions: all depends on

his activity 6. experience of a positive role:

Advantage for all of us Norm clarification in interaction process Increase of freedom by reduced use of force Reclaiming the means of informal social control reinforcement of the rule of law in society

Restorative Justice 1


is the headline for all endeavors that use means of formal social control to restore the wounds that are caused by crime

often the criminal justice process is impossibly slow and can not handle consequences of mass crime, wars etc.

e.g. mass victimizations in the concentration camps of Nazi regime in Germany - attempt to punish the main offenders - but that did nothing for the victims and did nothing for repairing the emotional, physical and financial damage to the survivors answer was the payment of large sums of money which were

used to provide medical, psychological and social assistance to surviving victims and their families

e.g. after the mass victimizations by the apartheid - regime in South Africa and the success of the transfer of power to the non-white government if South Africa, the leaders of the tribes in South Africa developed the so called “Truth and Reconciliation Commissions”.



The model was very successful in preventing a civil war and an explosion of the South African society.

A simplified description is this: In a process of several years, the different political

groups in South Africa discussed this alternative model: a forum is created for victims and the alleged offenders.

Participation is voluntary. If offenders confess their role in the crimes and answer

to the questions of victims honestly and satisfactorily, then the Truth and Reconciliation Committee pardons the offenders.

In addition, the TRC documents and publishes the proceedings.

Paavani Reddy : Truth and Reconciliation Commissions. Instruments for Ending Impunity and Building Lasting Peacefor the UN Chronicle : http://www.un.org/Pubs/chronicle/2004/issue4/0404p19.html


Different circumstances in each of the regions where TRC were held.

Common was widespread use of violence, including disappearances, murder, torture, rape illegal detentions the goal of the “old government” to hold down popular

demands for democracy and human rights and for self-governance.

Newly-established post conflict or interim governments had to address the past and its state abuse of power

while building a stable future based on a democratic society.



That was difficult- the offenders perpetrators and their

followers and sympathizers were often in influential positions in government, including the judiciary, police and military, making prosecutions difficult.

- the old regime tried to obscure evidenceIn response to these and other

problems, a a non-judicial approach was adopted.



First Ruanda – Burundi More than thirty truth commissions worldwide, including

in Argentina, Chile, Timor-Leste, El Salvador, Guatemala and more importantly South Africa and Ireland.

Their success is remarkable. They are the only feasible method

to establishing the truth of past crimes to provide a basis for victim compensation to install instruments to promote peace and reconciliation.

United Nations Secretary-General’s report on “The rule of law and transitional justice in conflict and post-conflict societies”

for systems in transition, there has not been found a better solution.



Advantages1. Victims can be heard!Often for the first time, victims could bring

to public attention their sufferings. The accounts are basis for public

acknowledgement of the grave injustices they suffered.

Often TRCs make recommendations for future handlings of the needs of victims.



2. Documentation for the facts are the base for knowing the truth.

Often rejected by official government accounts, TRCs describe :what Human rights were injured?What really happened? Who were the offenders? Why were the crimes committed?

These reports are widely discussed. They form the new nations base on which awareness and respect for Human Rights can grow.



3. Manifest of the will that the future is different!Demonstrate the difference between the current new governments and the old governments, help the credibility of new governments and lead them to support other peace building measures.

4. Promote peace and reconciliation.


The commissions have successfully addressed gross human rights violations during conflicts.

They promoted peace. They helped to achieve reconciliation. They made it possible that change occurred without new bloodsheds and civil war.

They gave societies, groups and individuals an alternative way to somehow deal with otherwise truly unmanageable and unforgiveable injustices, helping to stop the wheel of revenge and counter-revenge.

The United Nations plays an active role in supporting TRC efforts.

A new field emerged for young scientists : “Peace Building” and “Transitional Justice” - European Center is the University of Leuven .

9/15/2015 Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute 1 Restitution and...

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