Restitution and Compensation Presentation to the Tokiwa University

1. Restitution and Compensation • Presentation to the • Tokiwa University • Exchange Student Program 2011/2012 Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

2. Theorem of Divided Territory Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute 9/25/2014 2 2

3. 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?) Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

4. 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 Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

5. 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. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

6. 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. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

7. 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” Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

8. Restitution 5 • In the criminal justice system: • Restitution Sentence: the offender is sentenced to repair the damage • Restitution 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. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

9. 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) Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

10. Restitution 7Civil Law Claim in Criminal Procedure • Adhesion Procedure • Some 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. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

11. 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. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

12. 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 case • civil 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. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

13. Restitution 9Restitution Orders • In total, the attempts to vitalize restitution orders, have been met with resistance on the side of the judges • why 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 lawyers • when fees are not adequately regulated. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

14. Restitution 9Restitution 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 sanction • Enforced like a criminal sanction. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

15. 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=falsehttp://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 Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

16. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

17. Terminology in Victimology • Compensation • Who pays it? • The State • Restitution • Who pays it? • The Offender Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

18. 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. • Germany • 1976 Opferentschaedi-gungs - Gesetz • Federal and State Budget allocates money to compensate some victims of crime, Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

19. Victim Compensation 2Aim 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 Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

20. Victim Compensation 3What is paid? • State pays for certain cash expenses victims regularly have • TEXAS • State pays • for medical treatment • for rehabilitation • If medical rehabilitation is (partly) impossible, monthly rents for the living support of the (needy) victim • Germany Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

21. Victim Compensation 4How to finance compensation 4 slides • Taxes • State pays from the general tax budget • Extra Income • Gains of casinos and other gambling yields • Poland • (Germany partly in other areas of social programs) • Advantage • Savings for tax • Disadvantage • Limited funds • Morally questionable income? • Not predictable • Gains from extra - stamps Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

22. Victim Compensation 5How to finance compensation • Surplus fines • Canada, USA • Increase of 10% on all fines • Advantage • Relief for Finance Minister • Causation Principle • Disadvantage • Limited funds • Punishment according to guilt • Not according to social tasks of the state Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

23. Victim Compensation 6How to finance compensation • Confiscation of criminal gains • Especially: • Notoriety-for-profit • Profits of the sale of the publication rights of the story concerning the offence • Restitution surrogate means • CVC pays to the victim • Later the offender is caught and sentenced • Judge can order that the offender has to repair the damage caused to the CVC Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

24. Victim Compensation 7How to finance compensation • Subrogation • 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. G.F. Kirchhoff, Tokiwa International Victimology Institute

25. German Compensation Laws in a Nutshell • 1976 Victim Compensation Law • Who can claim? • Victim • Dependent survivors • Children • Widows • Parents when entitled to be supported by victim • (to – be - brides and their offspring from the victim) Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

26. 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. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

27. 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. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

28. Germany: who is eligible • Victims of intentional violent crimes • Not: • Traffic offences • Except: car is used as a weapon Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

29. Victim Compensation 8What is covered? Germany • General clause • Medical treatment • Full rehabilitation efforts • Extensive and excellent system • If damage severe enough: • Loss of Capability to be Gainfully Employed (LCGE) • Monthly installments • Including medical treatment • No time limit Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

30. 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 Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

31. 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: ….. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

32. Victim Compensation 11 Germany • “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…... Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

33. Victim Compensation 9What kind of decisions? • Claim granted • Claim partly granted: • Damage by crime stated • Medical treatment granted • Rest rejected • Claim rejected • No crime • No cooperation of victim Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

34. Victim Compensation 12Results: 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 insurances • 2% free medical care as members of police or of defense forces • 1% Federal Social Welfare Coverage • Most 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!!! Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

35. Victim Compensation 13Physicians 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 Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

36. Victim Compensation 14Result Interim Facit: • In Germany, 3% of all applications result in monthly installments • Very good provisions for the 3% • Victims and Survivors • often 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 victims • but here steps in the general social security system for all citizen Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

37. 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 damages • New generation of compensation systems • Priority for emotional damage: prevention of development of PTSD • Abolishment of the traditional system with priority of financial compensation • Priority for treatment of emotional damages • Pay for counseling • Compensation systems may become independent from crimes qualifications, • basically for all accidents and crimes with emotional/physical severe damage. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

38. Complaints • The system is not known to victims • (UN Declaration: Information) • The application forms are too complicated (see attachment for the Texas form) Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

39. Mediation 1 • Restitution orders cover financial damage. BUT: • The damage of victims is threefold: • emotional • physical • financial • 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. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

40. Mediation 2Victim 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. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

41. 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! Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

42. 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) Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

43. 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. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

44. 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 offender • and the reparation of damage Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

45. 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 managed • But many other ways are possible Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

46. 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 Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

47. Mediation 9Advantages • 1. for victim: • Activity instead of passivity • central,position for the victim, not „peice of evidence“ • victim can determine what is to be discussed in the mediation process • it can describe the emotional damage • it can avioid a civil proceeding and gets the damage easier repaired. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

48. 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 Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

49. 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 Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute

50. 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”. Prof. Dr. G.F. Kirchhoff, Tokiwa International Victimology Institute