ANNUAL REPORT FOR 2013
andRESOURCE M ATERIALSERIES No. 93

UNAFEI
Fuchu, Tokyo, Japan

August 2014

Tomoko Akane
Director
United Nations
Asia and Far East Institutefor the Prevention of Crime andthe Treatment of Offenders(UNAFEI)
1-26 Harumi-cho, Fuchu, Tokyo 183-0057, Japan
http://www.unafei.or.jp
unafei＠moj.go.jp

CONTENTS
INTRODUCTORY NOTEⅴ

PART ONEANNUAL REPORT FOR 2013
M ain Activities of UNAFEI
UNAFEI Work Programme for 2014
Appendix3
13
16PART TWOWORK PRODUCT OF THE 156TH
INTERNATIONAL SENIOR SEMINAR“PROTECTION FOR VICTIMS OF CRIME AND USE OF RESTORATIVEJUSTICE PROGRAMMES”
Visiting ExpertsʼPapers
Crime, Colonisation and Communities
by Dr. Brian Steels (Australia)

33

Creating Restorative and Sustainable Environments within a Custodial Setting:
Establishing a Template for the Future
by Dr. Brian Steels (Australia)

51

Policies for Victim Protection and Support:Current Situation and
Problems Faced by Victims of Crime in Hong Kongby Ms. Betty Pang Mo-yin (Hong Kong)

65

Child Protection Policy Unit of the Hong Kong Police Forceby Ms. Betty Pang Mo-yin (Hong Kong)

90

Cooperation with Other Authorities:Organizations and Experts toProtect and Support Victims of Crime in Hong Kongby Ms. Betty Pang Mo-yin (Hong Kong)

99

Justice for Victims of Crime
by Dr. Gerd Ferdinand Kirchhoff (Germany)

107

ParticipantsʼPapers
The Role of the Victim in the Criminal Process and Use of Restorative Justice
Practices in Brazil:Problems and Challenges in Search of Principles and National
Guidelines
by Ms. Cyntia Cristina de Carvalho e Silva (Brazil)
121

ⅲ

Restorative Justice for Adults and Juveniles in Thailand
by Dr. Angkana Boonsit (Thailand)

131

The Thai Criminal Justice System and Protection for Victims of Crime and Use of
Restorative Justice Programmes
by Ms. Chirawan Khotcharit (Thailand)
141

Reports of the Seminar
Support for Victims
by Group 1

150

Issues Concerning the Introduction of Restorative Justice Programmes in Criminal
and Juvenile Justice Systems
by Group 2
153

APPENDIX

ⅳ

161

INTRODUCTORY NOTE
It is with pride that the United Nations Asia and Far East Institute for the Prevention of Crime andthe Treatment of Offenders (UNAFEI) offers to the international community the Resource Material
Series No. 93. This volume contains the Annual Report for 2013 and the work produced during the156th International Senior Seminar,conducted from 15 January to 14 February 2014. The main themeof the 156th Seminar was Protection for Victims of Crime and Use of Restorative Justice Programmes.
The improvement of victim protection is an international trend,yet some countries in Asia,Africa,and Central and South America do not have adequate systems for the protection of victims of crime.
The three-fold objectives of the 156th Seminar were to clarify and analyse the current situation of
victim protection in the participating countries,to explore more effective ways to protect crime victims
and to encourage their active participation in the criminal justice process―specifically in the context
of restorative justice approaches.
UNAFEI, as one of the institutes of the United Nations Crime Prevention and Criminal Justice
Programme Network,held this Seminar to explore various issues that relate to victim protection andrestorative justice. This issue of the Resource M aterial Series, in regard to the 156th International
Senior Seminar, contains papers contributed by visiting experts, selected individual-presentation
papers from among the participants, and the Reports of the Seminar. I regret that not all the papers
submitted by the participants of the Seminar could be published.
I would like to pay tribute to the contributions of the Government of Japan, particularly the
M inistry of Justice, the Japan International Cooperation Agency, and the Asia Crime Prevention
Foundation, for providing indispensable and unwavering support to UNAFEIʼ
s international training
programmes.
Finally I would like to express my heartfelt gratitude to all who so unselfishly assisted in the
publication of this series.
August 2014

Tomoko Akane
Director of UNAFEIⅴ

PART ONE
ANNUAL REPORTFOR 2013

Main Activities of UNAFEI
UNAFEI Work Programme for 2014
Appendix

UNAFEI

MAIN ACTIVITIES OF UNAFEI(1 January 2013 -31 December 2013)

I. ROLE AND MANDATE
The Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders(UNAFEI) was established in Tokyo, Japan in 1962 pursuant to an agreement between the United
Nations and the Government of Japan. Its goal is to contribute to sound social development in Asiaand the Pacific region by promoting regional cooperation in the field of crime prevention and criminal
justice, through training and research.
UNAFEI has paid utmost attention to the priority themes identified by the Commission on Crime
Prevention and Criminal Justice. M oreover, UNAFEI has been taking up urgent, contemporary
problems in the administration of criminal justice in the region,especially problems generated by rapidsocio-economic change (e.g.,transnational organized crime,corruption,economic and computer crime
and the reintegration of prisoners into society)as the main themes and topics for its training courses,
seminars and research projects.

II. TRAINING
Training is the principal area and priority of the Instituteʼs work programmes. In the international
training courses and seminars,participants from different areas of the criminal justice field discuss andstudy pressing problems of criminal justice administration from various perspectives. They deepen
their understanding,with the help of lectures and advice by the UNAFEI faculty,visiting experts andad hoc lecturers. This so-called “problem-solving through an integrated approach”is one of the chief
characteristics of UNAFEI programmes.
Each year, UNAFEI conducts two international training courses (six weeksʼduration) and one
international seminar (five weeksʼduration). Approximately one hundred government officials fromvarious overseas countries receive fellowships from the Japan International Cooperation Agency(JICA
is an independent administrative institution for ODA programmes) each year to participate in all
UNAFEI training programmes.
Training courses and seminars are attended by both overseas and Japanese participants. Overseas
participants come not only from the Asia-Pacific region but also from the M iddle and Near East,Latin
America and Africa. These participants are experienced practitioners and administrators holding
relatively senior positions in criminal justice fields.
By the end of 2013, UNAFEI had conducted a total of 155 international training courses andseminars. Approximately 4,900 criminal justice personnel representing 131 different countries haveparticipated in these seminars. UNAFEI also conducts a number of other specialized courses, bothcountry and subject focused, in which hundreds of other participants from many countries have been
involved. In their respective countries, UNAFEI alumni have been playing leading roles and holdimportant posts in the fields of crime prevention and the treatment of offenders, and in relatedorganizations.
A. The 153rd International Senior Seminar
1. Introduction
The 153rd International Senior Seminar was held from 9 January to 8 February 2013. The main
theme was “Treatment of Female Offenders”. Fifteen overseas participants (including one course
counsellor)and seven Japanese participants attended the Seminar.
2. M ethodology
Firstly, the Seminar participants introduced the roles and functions of criminal justice agencies intheir countries in regard to the main theme. After receiving lectures from UNAFEI Professors and3

ANNUAL REPORT FOR 2013
visiting experts, the participants were then divided into two group workshops as follows:
Group 1: Implementing the“Bangkok Rules”―Focusing on Protecting Human Rights by Improving
the Living Environment of Female Offenders
Group 2: Rehabilitation Programmes for Female Offenders―Focusing on Reducing Reoffending of
Female Offenders
Each Group elected a chairperson,co-chairperson(s),a rapporteur and co-rapporteur(s)in order tofacilitate the discussions. During group discussion, the group members studied the designated topics
and exchanged views based on information obtained through personal experiences, the Individual
Presentations, lectures and so forth. The Groups presented their reports during the Report-Back
Session,where they were endorsed as the Reports of the Seminar. The full texts of these Reports were
published in UNAFEI Resource Material Series No. 90.
3. Outcome Summary(i) Implementing the “Bangkok Rules”―Focusing on Protecting Human Rights by Improving the
Living Environment of Female Offenders
The group considered the treatment of female offenders from the following perspectives:1)Gender
Sensitivity:Protecting the Human Rights of Female Offenders;2)Dependent Children;3)Health Care;
4)Juvenile Care;5)M inorities;6)Personnel;7)Research and Study;8)Safety;and 9)Social Relations.
After a lengthy discussion,the Group reported its recommendations for implementing the Bangkok
Rules and focused on the protection of human rights of female offenders. Based on their discussionsof all agenda items, Group 1 concluded that gender sensitivity is not a priority in most countries;
prisons are not designed for female offenders; overcrowding must be addressed by diversion andalternative treatment for women that avoids imprisonment;and treatment must focus on providing
women with educational or vocational skills, making them self-reliant upon the conclusion of theirtreatment.
The Group advocated the following recommendations to improve the treatment of female offenders:A. extensive research to address female offendersʼspecific needs;B. providing gender-specific training
to correctional staff;C. using inter-agency cooperation (police,prosecution,courts,and corrections)toaddress overcrowding by the improvement of diversion programmes;D. judicial and human-rightsorganization inspection of the condition of female inmates; E. sensitization of the public through“Restorative Justice”public awareness campaigns;F. the construction ofwomenʼs prisons and smaller,
more community-based institutions;G. empowering correctional facilities to provide special medicalcare for female offenders, especially for gynaecology and mental health care; H. employment ofexperienced female staff by relevant governmental agencies in order to influence the decision-making
process on issues that affect female offenders;I. separation of juvenile and adult female offenders;J.
optimizing mental health care, drug treatment programmes, and educational/vocational programmes
through public-and private-sector partnerships.
(ii) Rehabilitation Programmes for Female Offenders―Focusing on Reducing Reoffending of Female
Offenders
The group conducted its discussions according to the following agenda: (1) characteristics offemale-committed offences; (2) effective assessment/classification methods for female offenders; (3)necessary rehabilitation programmes for female offenders;and (4)surrounding issues of rehabilitation
programmes of female offenders.
After in-depth discussions on these sub-topics, the group concluded that the treatment of female
offenders has not received sufficient attention due to their small(but increasing)population in comparison with male offenders. The Group recognized that offences committed by females differ from thoseof males in terms of the types of offences or the motives for the offences. Consequently, female
offenders require special consideration of treatment that meets their needs―both in the institution andin the community.

4

MAIN ACTIVITIES OF UNAFEI
Based on the input from the visiting experts, Group 2 identified risks and needs specific to female
offenders: mental health history, depression/anxiety, psychosis/suicidal［tendencies］, child abuse,
adult victimization, relationships, parental stress, and housing safety. Treatment must be tailored toaddress each offenderʼs risks and needs; thus, effective risk-needs assessment is vital. Successful
rehabilitation programmes must be gender-specific and must target criminogenic factors;theymust use
established methodologies, such as Cognitive Behavioural Treatment, and gender-sensitive methodologies, such as trauma care;finally, a holistic approach is necessary.
In addition, the following recommendations were advocated: first, actuarial assessment (i.e.
statistical research)must be conducted to further identify and analyze gender-specific risks and needs;
second, custodial and non-custodial treatment programmes must focus on gender-specific andcriminogenic risk factors,and treatment requires more community-based measures for low-risk female
offenders;and third, the treatment of female offenders must be viewed in a wider context that (1)increases the capacityofcorrectional officers to treat female offenders;(2)expands the knowledge basethrough statistical research and sharing ofbest practices;(3)strengthens cooperation between local andinternational agencies in terms of knowledge sharing and human rights monitoring; and (4) raises
public awareness of the situation of female offenders.
B. The 154th International Training Course
1. Introduction
The 154th International Training Course was held from 15 May to 28 June 2013. The main theme
was “Stress M anagement of Correctional Personnel―Enhancing the Capacity of M id-Level Staff”.
Twelve overseas participants,including two international observers,and seven Japanese participants
attended this Course.
2. M ethodology
The objectives of the Course were primarily realized through the Individual Presentations,lecturesby visiting experts and Group Workshop sessions. In the former,each participant presented the actual
situation, problems and future prospects of his or her country with respect to the main theme of the
Course. The Group Workshops further examined the subtopics of the main theme. To facilitate
discussion, the participants were divided into two groups to discuss the following topics under theguidance of faculty advisers:
Group 1: Causes of Stress for Correctional Personnel and Necessary Abilities for M id-Level Staff
to Solve the Problems
Group 2: What M id-Level Staff Can Do for Correctional Personnel in Terms of Stress M anagement
The two groups each elected a chairperson,co-chairperson(s),a rapporteur and co-rapporteur(s)toorganize the discussions. The group members studied the designated subtopics and exchanged theirviews based on information obtained through personal experience, the Individual Presentations, lectures and so forth. The Groups presented their reports during the Report-Back Session, where they
were endorsed as the reports of the Course. The full texts of the reports were published in full in
Resource M aterial Series No. 91.
3. Outcome Summary(i) Causes of Stress for Correctional Personnel and Necessary Abilities for Mid-Level Staff to Solvethe Problems
Group 1 reported on the causes of stress,stress management solutions,and the abilities required for
mid-level correctional staff to solve the problem of work-related stress. Although there are manycauses of stress, the group focused on the five main issues that cause stress:(1) limited corrections
budgets; (2) the nature of corrections work; (3) prison overcrowding; (4) lack of leadership andmanagement;and (5)lack of adequate training.
Limited corrections budgets affect both inmates and officers:inmates suffer from inadequate careand facilities,and officers are understaffed,overworked and underpaid. Solving this problem requires
improved advocacy for budget allocations and effective management of limited resources. Mid-level

5

ANNUAL REPORT FOR 2013
staff must link budget proposals with organizational goals. Further, they must improve managerial
skills and motivate their staffs.
The nature of corrections work is inherently stressful because officers deal with threats, inmatesʼ
demands, and the diversity and seriousness of criminal problems. Solutions include maintaining law
and order,improved teamwork,and instituting effective treatment programmes. Overcrowding causes
significant stress; the group emphasized the importance of alternative sentencing and diversion
programmes to solve this problem. M id-level staff must lead by example,use teamwork and communicate effectively.
Lack of leadership and management is caused by the lack of skills and poor strategic planning.
M anagers must develop sound administrative and human-resource policies to solve this problem.
M id-level staff must learn to engage in strategic planning, recruit and develop human resources, andmotivate subordinates.
Lack of adequate training causes stress for employees who do not feel they have adequate knowledge to perform their jobs. Solutions include training all levels of employees and actively encouraging
staff participation in the programmes. M id-level staff must have the ability to plan and execute
training programmes and manage human resources effectively.
Sometimes,despite our best efforts,problems cannot be solved. In these cases,mid-level staff must
engage in stress management to reduce stress. The group reported numerous techniques to manage
stress that were drawn from the Individual Presentations (i.e. leading balanced lives and religious/
spiritual pursuits)and the Visiting Experts (i.e. the Golden Ratio).
M id-level staff can improve their abilities by(1)using reliable assessment programmes to evaluate
the strengths and weaknesses of their subordinates;(2)designing tailor-made training programmes in
response;(3)broadening professional exposure by attending senior officer meetings,gaining experiencein different departments,and attending overseas training seminars;(4)knowledge sharing of rules andregulations, case studies, staff welfare issues, etc. using Hong Kongʼs “Knowledge Management
System”(KMS)database as a model;and (5)“horizontal”development by performing tasks outside of
their core duties.
(ii) What Mid-Level Staff Can Do for Correctional Personnel in Terms of Stress Management
Group 2 reported on measures that can be taken by mid-level staff to address work-related stressin correctional settings. The group discussed (1) the current situation and countermeasures in the
country of each participant in the group, (2) common problems and countermeasures faced by all
countries;and (3) enhancing leadership of mid-level staff. Overcrowding, the nature of corrections
work, lack of budget and staff, lack of facilities and equipment, lack of communication, and lack oftraining and leadership skills were all identified as factors that cause work-related stress. Recognizingthat budgets are almost always limited, the group focused on using the limited resources available inthe best way to achieve desired targets.
The group began by identifying the current situation of stress faced by correctional officers in eachcountry participating in the group,as well as countermeasures against it. Next,the following common
problems were identified:(1)lack of communication;(2)insufficient training,and (3)lack of leadership.
First, the group recommended implementing feedback systems, including the Plan, Do, Check, Act(PDCA)Cycle as the primary method for improving communication within the workplace. Additionally, mid-level staff are encouraged to take action that will increase communication and improve thework environment, such as encouraging open communication, scheduling regular meetings, and considering use of the “large room”system, which is currently being evaluated by the Japanese Public
Prosecutorʼs Office. Next,frequent mistakes,low morale,and feelings of incompetency were identified
as problems caused by insufficient staff training;emphasis on basic,follow-up,specialized and on-thejob training was proposed as a countermeasure. Finally, the group proposed using Performance andM aintenance(PM)Theory to address lack of leadership byfocusing on providing support and feedback
to subordinates.

6

MAIN ACTIVITIES OF UNAFEIThe group reported that enhancing leadership of mid-level staff was vital to reducing work-related
stress. M id-level staff should (1)evaluate the performance of their subordinates;(2)delegate authority;(3) increase employee autonomy and accountability;(4) improve decision-making skills;(5) practice“transformational leadership”;and (6)receive systematic and organized training.
To achieve effective stress management, the group made the following recommendations:that all
correctional institutions (A) adopt stress management programmes;(B) establish a communications
network in order to share important information timely, accurately, and objectively;and (C)provide
employees with appropriate and continuous education and training, and train mid-level staff toproperly delegate authority.
C. The 155th International Training Course
1. Introduction
The 155th International Training Course was held from 21 August to 27 September 2013. The main
theme was “Effective Collection and Utilization of Evidence in Criminal Cases”. Seventeen overseas
participants and seven Japanese participants attended.
2. M ethodology
The participants ofthe 155th Course endeavoured to explore the theme primarilythrough a comparative analysis of the current situation and the problems encountered. The participantsʼin-depth
discussions enabled them to put forth effective and practical solutions.
The objectives were primarily realized through the Individual Presentations, lectures by visiting
experts and the Group Workshop sessions. In the former, each participant presented the actual
situation, problems and future prospects of his or her country with respect to the main theme of the
Course. To facilitate discussions, the participants were divided into two groups.
Each Group elected a chairperson,co-chairperson,rapporteur and co-rapporteur(s)to organize thediscussions. The group members studied the situation in each of their countries and exchanged theirviews based on information obtained through personal experience, the Individual Presentations, lectures and so forth. Both groups examined the course theme. The Groups presented their reports in theReport-Back Sessions, where they were endorsed as the reports of the Course. The reports were
published in full in UNAFEI Resource Material Series No. 92.
3. Outcome Summary(i) Effective Collection and Utilization of EvidenceGroup 1 conducted its discussions based on the following agenda: (1) effective collection andutilization of oral statements; (2) collection of objective evidence; and (3) necessary measures toimprove/develop investigation in each country. All group members emphasized the importance of thestatements of witnesses,victims and suspects for the completion of a successful criminal investigationand for bringing criminal offenders to justice. While affirming the importance of the right of criminal
defendants to remain silent during criminal investigations,the group found that respect for that rightby criminal justice professionals creates challenges that require the use of improved investigation andinterrogation techniques and reliance on objective evidence.
On oral statements, the group reported that aspects of the PEACE model and Reid technique arebeing used in most countries. Although the countries participating in the group reported differing
views on the necessity of obtaining confessions,the PEACE model and Reid techniques of investigationand interrogation are useful in the criminal investigation process. M oreover,the group discussed theuse of plea bargaining in the participating countries and reported that such systems are used―either
by law or in practice―in the Ukraine, Guinea, Nepal, and Vanuatu. Plea bargaining is not used,but
is under consideration,in Japan and Thailand. The group reported that it found plea bargaining to bea useful tool in obtaining oral testimony from suspects or accomplices. However, regarding plea
bargaining and use of the PEACE model and Reid technique,the group felt that each country must findits own solution.
On objective evidence, the group reported that the main aim for collection of such evidence is to7

ANNUAL REPORT FOR 2013
establish the objective truth. All participating countries reported the use of some form of objective
evidence, but techniques and resources vary from country to country
The group concluded that each country requires its own solutions to challenges faced during theinvestigation process, and detailed measures for each participating country are stated in the groupʼsfinal report. The following recommendations are applicable to all countries:(1)everypossible measure
should be taken in all countries to follow the rule of law;(2)all countries should enhance the effectiveness of criminal investigations by adoption of legislation for appropriate interrogation methods;(3)allcountries should share best practices and deepen international cooperation in the field of criminal
justice.
(ii) Effective Collection and Utilization of EvidenceGroup 2 conducted its discussions based on the following agenda: (1) effective collection andutilization of oral statements; (2) collection of objective evidence; and (3) necessary measures toimprove/develop investigation in each country. Regarding the collection of oral statements,the groupreported that although there are differing attitudes on the extent of the right to remain silent incriminal investigations,all group members agreed that the right is a human right. However,the groupagreed that the oral statements and testimony of suspects,accomplices,witnesses,and victims are all
significant in conducting a thorough investigation and achieving a successful prosecution. Thus,
improved techniques are needed.
The group adopted a number of recommendations designed to improve the collection of oral
evidence in all countries. The group identified the need to improve research of interviewing andinterrogation techniques by the development of a system for the exchange of information on investigation,prosecution,and adjudication experiences between countries;this research can be applied by thedevelopment of training manuals to standardize the use of such techniques. As a practical matter,thegroup suggested concrete measures for improving investigations by (1) establishing separate, wellequipped interviewing rooms at police stations,(2)relying on the guidance of psychologists or experienced investigators, and (3)utilizing assistants to investigators.
Additional measures proposed by the group include:(1)considering the adoption or development ofinterviewing and interrogation techniques, such as the PEACE model and Reid technique; (2) the
development or expansion of witness,victim,and accomplice protection programmes in order to obtain
crucial testimony;(3)adoption of a discretionary model of prosecution that would allow prosecutors
to focus their attention on the most serious crimes;and (4)adoption of a plea-bargaining system,basedon the advantages and the success of such systems in the fight against organized crime and corruption.
Regarding the collection of objective evidence, the group agreed that such evidence is the mostimportant aspect of criminal investigation―solid objective evidence can render a confession unnecessary. However,most countries report a lack of experience,training,and resources to collect objective
evidence. In response,all countries should develop national DNA and fingerprint databases;formulate
rules for dealing with electronic and internet-based evidence; cooperate with the private sector todevelop digital forensics analysis tools;utilize securitycamera analysis;and provide training and funds
for scientific analysis.
D. Special Seminars and Courses
1. The 16th UNAFEI UNCAC Training Programme
The 16th UNAFEI UNCAC Training Programme was held from 9 October to 13 November 2013.
This Programme dealt with the United Nations Convention against Corruption and examined countermeasures against corruption. The theme of the Programme was Effective Measures to Prevent andCombat Corruption and to Encourage Cooperation between the Public and Private Sectors. Eighteen
overseas participants and seven Japanese participants attended.
2. The Seventh Regional Seminar on Good Governance for Southeast Asian Countries
UNAFEI hosted the Seventh Regional Seminar on Good Governance for Southeast Asian Countries
from 3 to 5 December 2013 at the Malaysia Anti-Corruption Academyin Kuala Lumpur,M alaysia. The

8

MAIN ACTIVITIES OF UNAFEI
Seminar was co-hosted by the Malaysian Anti-Corruption Commission. The main theme of the
Seminar was “Enhancing Investigative Ability in Corruption Cases”. Thirteen participants from eightSoutheast Asian countries attended. The Seminar featured the following visiting experts:M r. Tony
Kwok,former Deputy Commissioner of Hong Kongʼs Independent Commission against Corruption;Mr.
Ang Seow Lian, Deputy Director of Singaporeʼs Corrupt Practices Investigation Bureau; and Mr.
Kenneth C. Kohl, Resident Legal Advisor at the U.S. Embassy in Malaysia.
3. The Thirteenth Training Course on the Juvenile Delinquent Treatment System for Kenya
The Thirteenth Training Course on the Juvenile Delinquent Treatment System for Kenya was heldfrom 30 January to 22 February 2013. Eleven participants from juvenile justice agencies were exposedto theories and practices with regard to “through-care”and what is required to treat juveniles in thejuvenile justice system. The course curriculum was based on lectures,visits to relevant organizations
and group work discussions. At the end of the course,the participants prepared training materials on
through-care for childcare and protection officers in Kenya.
4. The Ninth Seminar on Criminal Justice for Central Asia
The Ninth Seminar on Criminal Justice for Central Asia was held from 27 February to 14 March
2013. The main theme of the Seminar was“
Addressing Corruption which Hinders Countermeasures for
Drug Offences and Other Crimes:Especially,Ethics and Codes of Conduct for Judges,Prosecutors andOther Law Enforcement Officials”. Eleven participants from four Central Asian countries, Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan, attended.

III. TECHNICAL ASSISTANCE
A. Regional Training Programmes
1. Short-Term Experts in Kenya
From 22 July to 23 August, UNAFEI dispatched a professor to provide technical assistance to
Kenya on its juvenile justice system, in coordination with Kenyaʼs national project for capacitybuilding of childcare and protection officers (CCPOs). The professor participated in the terminal
evaluation of the project, made a presentation on the twenty-year history of UNAFEIʼ
s support to
Kenyaʼ
s juvenile justice system, delivered a lecture on information sharing in the Japanese juvenile
justice system and assisted in the preparation of guidelines on through-care and aftercare for thechildren in statutory institutions. These guidelines were approved by the Director of ChildrenʼsServices, the Director of Probation and Aftercare Services and the Commissioner General of Prison
Service, and were shared with senior CCPOs through a symposium on through-care and aftercare forthe children in the juvenile justice system.

IV. INFORMATION AND DOCUMENTATION SERVICES
The Institute continues to collect data and other resource materials on crime trends,crime prevention strategies and the treatment of offenders from Asia,the Pacific,Africa,Europe and the Americas,
and makes use of this information in its training courses and seminars. The Information and LibraryService of the Institute has been providing,upon request,materials and information to United Nations
agencies, governmental organizations, research institutes and researchers,both domestic and foreign.

V. PUBLICATIONS
Reports on training courses and seminars are published regularly by the Institute. Since 1971,theInstitute has issued the Resource Material Series,which contains contributions by the facultymembers,
visiting experts and participants of UNAFEI courses and seminars. In 2013, the 89th, 90th and 91steditions of the Resource M aterial Series were published. Additionally,issues 140 to 142(from the 153rd
Seminar to the 155th Training Course,respectively)of the UNAFEI Newsletter were published,which
included a brief report on each course and seminar and other timely information. These publications
are also available on UNAFEIʼ
s web site at http://www.unafei.or.jp/english.

9

ANNUAL REPORT FOR 2013

VI. OTHER ACTIVITIES
A. Public Lecture Programme
On 24 January 2013,the Public Lecture Programme was conducted in the Grand Conference Hall of
the Ministry of Justice. In attendance were many distinguished guests, UNAFEI alumni and theparticipants of the 153rd International Senior Seminar. This Programme was jointly sponsored by the
Asia Crime Prevention Foundation (ACPF), the Japan Criminal Policy Society (JCPS)and UNAFEI.
Public Lecture Programmes increase the publicʼs awareness of criminal justice issues, throughcomparative international study,by inviting distinguished speakers from abroad. In 2013,Dr. Patricia
Van Voorhis, Professor Emerita, School of Criminal Justice at the University of Cincinnati, and Dr.
Nathee Chitsawang, Deputy Director, Office of the Attorney General of Thailand, were invited as
speakers. They presented papers entitled ”
Policy Developments Regarding the Treatment of Women
Offenders in the US: the Slow Process of Change”and “Key Issues of Women Prisoners: Lessons
Learned from Thai Prisons,”respectively.
B. Assisting UNAFEI Alumni Activities
Various UNAFEI alumni associations in several countries have commenced, or are about tocommence, research activities in their respective criminal justice fields. It is, therefore, one of theimportant tasks of UNAFEI to support these contributions to improve the crime situation internationally.
C. Overseas M issions
Professor Akiko Tashiro visited Bangkok,Thailand from 19 to 21 February 2013 to attend the East
Asia-Pacific Regional M eeting on the Implementation of the United Nations Rules for the Treatment
of Women Prisoners and Non-custodial M easures for Women Offenders (the Bangkok Rules).
Professor Akiko Tashiro visited Bangkok,Thailand and Manila,the Philippines,from 1 to 10 April
2013 to attend the 2013 ASEAN Plus Three Conference on Probation and Non-custodial Measures.
Deputy Director Kenichi Kiyono visited Vienna, Austria from 21 to 25 April to attend the 22nd
session of the Commission on Crime Prevention and Criminal Justice,held in the United Nations Officein Vienna.
Deputy Director Kenichi Kiyono visited Ulaanbaatar, M ongolia from 22 to 25 May 2013 for a
conference on the Implementation and Tendency of State Policy on Combating Crime, hosted by the
Law Enforcement University of Mongolia.
Director Tomoko Akane visited Beijing, China from 16 to 19 August 2013 to attend the Fifth
International Forum of Contemporary Criminal Law.
Deputy Director Kenichi Kiyono visited Delhi, India from 9 to 12 September 2013 to attend theFifty-Second Annual Session of the Asian-African Legal Consultative Organization.
Professor Koji Yoshimura and Officer Masato Honda visited India Delhi from 22 to 27 September
2013 to attend the 33rd Asian and Pacific Conference of Correctional Administrators (APCCA).
Professor Yoshimura made a presentation entitled “Mission and Future Challenges of UNAFEI”as aSpecialist Presentation.
Professor Akiko Tashiro visited the United Kingdom from 7 to 15 October 2013 to attend the 1stWorld Congress on Probation and to conduct research on the criminal justice system in the UK.
Professor Toru Nagai visited Colorado Springs, U.S.A from 26 October to 3 November 2013 toattend the 15th Annual Conference of the International Corrections and Prisons Association (ICPA)
Director Tomoko Akane visited Bangkok, Thailand from 14 to 15 November 2013 to attend the
Bangkok Dialogue on the Rule of Law.

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MAIN ACTIVITIES OF UNAFEI
Deputy Director Kenichi Kiyono visited Panama City, Panama from 25 to 27 November 2013 toattend The Fifth Conference ofthe States Parties to the United Nations Convention against Corruption.
Director Tomoko Akane visited Courmayeur, Italy from 11 to 15 December 2013 to attend the
Co-ordination M eeting of the United Nations Crime Prevention and Criminal Justice Programme
Network and the ISPAC International Conference.
D. Assisting ACPF Activities
UNAFEI cooperates and collaborates with the Asia Crime Prevention Foundation (ACPF) to
improve crime prevention and criminal justice administration in the region. Since UNAFEI and the
ACPF have many similar goals, and a large part of the ACPFʼ
s membership consists of UNAFEI
alumni, the relationship between the two is very strong.

VII. HUMAN RESOURCES
A. Staff
In 1970, the Government of Japan assumed full financial and administrative responsibility forrunning the Institute. The Director, Deputy Director and approximately nine professors are selectedfrom among public prosecutors,the judiciary,corrections,probation and the police. UNAFEI also hasapproximately 15 administrative staff members, who are appointed from among officials of theGovernment of Japan, and a linguistic adviser. M oreover, the Ministry of Justice invites visiting
experts from abroad to each training course and seminar. The Institute has also received valuableassistance from various experts, volunteers and related agencies in conducting its training programmes.
B. Faculty and Staff Changes
M r.Yuichi Tada,formerlya professor ofUNAFEI,was transferred to the Yokohama District Courton 1 April 2013.
M s.Kumiko Izumi,formerly a professor of UNAFEI,was transferred to the Saitama District Public
Prosecutors Office on 1 April 2013.
M r. Fumihiko Yanaka, formerly a professor of UNAFEI, was transferred to the International
Bureau on 1 April 2013.
M s.M ayu Yoshida,formerly a professor of UNAFEI,was transferred to Tochigi Prison on 1 April
2013.
M s.Yukako Mio,formerly a public prosecutor of the Okayama District Public Prosecutors Office,
was appointed a professor of UNAFEI on 1 April 2013.
M r. Kazuhiko Moriya, formerly a public prosecutor of the Fukuoka District Public Prosecutors
Office, was appointed a professor of UNAFEI on 1 April 2013.
M r. Toru Nagai, formerly the chief of the financial affairs section at Kanazawa Prison, wasappointed a professor of UNAFEI on 1 April 2013.
M r. Yusuke Hirose, formerly a Judge of the Kushiro District Court, was appointed a professor of
UNAFEI on 1 April 2013.
M r. Tatsuya Sakuma, formerly the Director of UNAFEI was transferred to the Maebashi District
Public Prosecutors Office on 5 July 2013.
M s. Tomoko Akane, formerly a public prosecutor at the Supreme Public Prosecutors Office, wasappointed as the new Director of UNAFEI on 5 July 2013.
M s.Sae Sakai left her position as a kitchen chef at UNAFEI on 1 November 2013 and was replaced

11

ANNUAL REPORT FOR 2013by M s. M aki Odagiri.

VIII. FINANCESThe M inistry of Justice primarily provides the Instituteʼs budget. UNAFEIʼ
s total budget for its
programmes is approximately ¥70 million per year. Additionally, JICA and the ACPF provide
assistance for the Instituteʼs international training courses and seminars.

12

WORK PROGRAMME FOR 2014

I. TRAINING
A. Training Courses & Seminars (Multinational)
1. The 156th International Senior Seminar
The 156th International Senior Seminar was held from 15 January to 14 February 2014. The main
theme of the Seminar was “Protection of Victims of Crime and Use of Restorative Justice
Programmes”. Seven overseas participants, one overseas observer and seven Japanese participants
attended.
2. The 157th International Training Course
The 157th International Training Course was held from 14 May to 19 June 2014. The main themeof the Course was the “Assessment and Treatment of Special Needs Offenders”. Nine overseas
participants, two overseas observers and seven Japanese participants attended.
3. The 158th International Training Course
The 158th International Training Course will be held from late August to late September 2014.The
main theme of the Course is “Conducting Speedy and Efficient Trials”.
4. The 17th UNAFEI UNCAC Training Programme
UNAFEIʼs annual general anti-corruption programme,the UNAFEI UNCAC Training Programme,
is scheduled for mid-October to mid-November 2014.
5. The Eighth Regional Seminar on Good Governance for Southeast Asian Countries
In November 2014,UNAFEI will hold the Eighth Regional Seminar on Good Governance in Kuala
Lumpur,Malaysia. The main theme of the Seminar is “Current Issues in the Investigation,Prosecution
and Adjudication of Corruption Cases”.
6. The First Criminal Justice Training Programme for French-Speaking African Countries
From 19 February to 11 March 2014,UNAFEI held the First Criminal Justice Training Programme
for French-Speaking African Countries. Thirty participants attended from 10 countries, including
Japan.
7. The Follow-up Seminar on Criminal Justice for Central Asia
The Follow-up Seminar on Criminal Justice for Central Asia was held from 4 to 19 March 2014.The
main theme of the Seminar was “Addressing Corruption which Hinders Countermeasures for Drug
Offences and Other Crimes:Focusing on Ethics and Codes ofConduct for Judges,Prosecutors and Other
Law Enforcement Officials”.
B. Training Course (Country Specific)
1. The Comparative Study on Criminal Justice Systems of Japan and Nepal
The Comparative Study on Criminal Justice Systems of Japan and Nepal will be held from 21
August to 4 September 2014.

13

ANNUAL REPORT FOR 2013
Distribution of Participants by Professional Backgrounds and Countries(1st International Training Course - 157th International Training Course)
Professional
Background
Country/Area

Judicial and
Other
Administration

Judge

PublicProsecutors

PoliceOfficials
4
19
12

Afghanistan
Bangladesh
BhutanBrunei
Cambodia
China
Georgia
Hong Kong
India
Indonesia
Iran
Iraq
JordanKorea
Kyrgyzstan
Laos
M alaysia
M aldives
M ongolia
M yanmar
Nepal
Oman
Pakistan
Palestine
Philippines
Saudi Arabia
Singapore
Sri Lanka
TaiwanTajikistan
ThailandTurkeyUnited Arab Emirates
Uzbekistan
Viet Nam
Yemen

9
24

9
14

6

4
1
13

2
5

1
5

Correctional
Officials(Adult)
5

9
18
20
4

5
17
2

44
1

41
1

18
2

21

15
1

5

3

8
2

1

A S I A
Algeria
Botswana
Cameroon
Cote dʼIvoireDemocratic Republic of the Congo
Egypt
Ethiopia
GambiaGhana
GuineaKenya
LesothoLiberia
M adagascar
M alawiM auritius
M orocco
M ozambique
Namibia
Niger
Nigeria
Seychelles
South Africa
Sudan
Swaziland
Tanzania
Tunisia
UgandaZambiaZimbabwe

348

221
4

247
2
1
1

435

217

5

2

AFR ICA
Australia
Fiji
Kiribati
M arshall Island
M icronesia
Nauru
New Zealand
Palau
Papua New Guinea
Samoa
Solomon Islands
Tonga
Vanuatu

33

22

6
1
1

1

THE PACIFIC
Antigua and Barbuda
Argentina
Barbados
BelizeBolivia
BrazilChile
Colombia
Costa Rica
Dominican Republic
EcuadorEl Salvador
GrenadaGuatemala
GuyanaHaiti
Honduras
JamaicaM exicoNicaragua
PanamaParaguay
Peru

27

3

2

2

14

7
2
3
1
16

20
2
20
5
11
22
12
1
27
2
1

10

33
8
3
3
53

Social
WelfareOfficers

Training &Research
Officers

Others

Total

4

5

2

2
1

7
7
3
1
1
15
1
2
1
28

13
1
10
21
2
1
7
36

10
22
12
3
1
3

Child
WelfareOfficers

1

7
10
1
12
55
33
8
7
5
6
1
10
46
2
2
4
32
4
42
1
39
7
12
22
2

18
15
23
5
6

Correctional Probation Family Court
Officials
ParoleInvestigation(Juvenile)
Officers
Officers

8
30
7
14
6
5
1
32

3
1

9
1
3

35
2

8

3
2

8

1

10
3
10
20
1

3

2
1
14

3
1

10
11

9

16

1

3
2
6

1
6

5

2
2

4

3

1

5

3

4
2
1

1

3
3

3

2

2

5
1
1

7
1
1
1

8

5
1

1
1

4

2

47

42

28

3

1

1

1
7

1

3
3

1

1

2
4
2
1
3
1
2
9

2
1
3

5

2

1
1
1

1
1
3
2
2
5
3
12
1

39

76

4

4

1

1
9

2

10
2

2
1

1
1
1
1

1

1
1
1
1

2
4

1
3
1

7
1

1
1

3
25
1
9

1
10
3
3
2

1

4
2

1
1
17

1
3
1
3
3

1
1
1
5

1

6
4
3
13
2
9
1
5
6
8

7
3

99

27

21

17

4
1
1
1
2
23
2
2
7
4

1

1
1
1
1
1
1

1

1
2

2
1

2

14
1

0

0

2
1
1

10

4

1
1
1
10

5
2

1
4
2

68
1
2
2
2

36

27
4
6

2
2

1

4
1
0

14
1

2
1
1

0

0

3

1

3
1

1
1

9
1
2
5
1

2

4
1
1

1

1

2
3
2

1
4
5
1
1
3
1
8
1
2

1

1

1
1

1
2

1

1

1
1
1
1

1

1
5

1
1

1
1
4

10

5
1
4

4
9
4

1
1
1

1

2

29
73
12
6
12
41
1
77
101
136
42
31
10
114
2
34
132
14
4
16
102
5
89
6
146
17
74
118
21
1
191
8
1
1
38
3
1,708
6
11
5
3
6
11
5
2
8
6
50
3
1
1
1
1
8
3
3
1
15
9
4
20
2
25
2
7
7
12
238
3
55
1
5
2
2
2
3
56
8
8
19
8
172
2
7
3
3
2
44
8
14
16
1
6
11
1
4
4
1
11
10
5
1
10
12
26

DISTRIBUTION OF PARTICIPANTS
Saint Christopher and Nevis
Saint Lucia
Saint Vincent
Trinidad and Tobago
U.S.A.
Uruguay
Venezuela
NORTH & SOUTH AM ERICA
Albania
Azerbaijan
Bulgaria
Estonia
Former Yugoslav Republic of M acedonia
Hungary
Lithuania
M oldova
PolandUkraineE U R OP E
United Nations Office on Drugsand Crime
J APAN
TOTAL

1
1

1
1
2

1

1
1
1

1
29
1
1

22

1
32

3
12
107
2

15

3

2

1

2

1

1
4

12

1
1
2
1
1
1
1
1
6

1
1

1
2

6

0

0

0

0

0

0

0

118
561

192
461

310
633

105
820

101
396

95
139

217
323

68
73

38
44

2
55

48
105

0
1
78
126

2
3
2
2
1
3
15
230
3
1
1
1
2
1
1
1
3
15
1
1,372
3,736

15

MAIN STAFF OF UNAFEI
Directorate
M s. Tomoko Akane
M r. Kenichi Kiyono

Director
Deputy Director

Faculty
M r. Ryo Tsunoda
M r. Shinichiro Iwashita
M r. Koji Yoshimura
M s. Akiko Tashiro
M s. Yukako Mio
M r. Kazuhiko M oriya
M r. Yusuke Hirose
M r. Toru Nagai
M r. Naoya Oyaizu
M r. Thomas L. Schmid
Secretariat
M r. Hiromitsu Ando
M r. Seiichi Sugiyama
M r. Ryosei Tada

Professor
Professor
Professor
Professor
Professor
Professor
Professor
Professor
Professor
Linguistic Adviser

Chief of Secretariat
Section Chief, General and Financial Affairs
Section Chief, Training and Hostel
M anagement Affairs

AS OF 31 DECEMBER 201316

APPENDIX

2013 VISITING EXPERTS
THE 153RD INTERNATIONAL SENIOR SEMINAR
Special Lecturer
Her Royal Highness
Princess Bajrakitiyabha M ahidol

Visiting Experts
Dr. Patricia Van Voorhis

Ambassador of Thailand to Austria andPermanent Representative of Thailand to
The United Nations Office in Vienna
ThailandProfessor Emerita
School of Criminal Justice
University of Cincinnati
USA

M s. Piera Barzano

Criminal Justice Reform Expert
Justice Section/Division of Operations
United Nations Office on Drugs andCrime (UNODC)

Dr. Nathee Chitsawang

Deputy Director
Thailand Institute of Justice
Thailand

THE NINTH SEMINAR ON CRIMINAL JUSTICE FOR CENTRAL ASIA
M s. Olga Zudova

Senior Regional Legal Adviser
United Nations Office on Drugs and Crime
Regional Office for Central Asia

M r. Tony Kwok M an-wai

Anti-Corruption Consultant
Former Deputy Commissioner of the
Independent Commission Against
Corruption
Hong Kong Special Administrative Region
China

THE 154TH INTERNATIONAL TRAINING COURSE
Dr. Rupali Jeswal

CEO
Xiphos ISS(Intelligence and Security Solutions)India

M r. David Prescott

Director
Professional Development Quality
Improvement
Becket Family Services
USA

17

ANNUAL REPORT FOR 2013

THE 155TH INTERNATIONAL TRAINING COURSE
M r. Timothy E. Curtis

Company Director
Training Consultant
Wessex Training Consultancy Ltd.
United Kingdom

M r. Robert R. Strang

Resident Legal Advisor to the Philippines
Office of Overseas Prosecutorial
Development, Assistance and Training(OPDAT)
Criminal Division
U.S. Department of JusticeUSA

THE 16TH UNAFEI UNCAC TRAINING PROGRAMME
M r. David Green

Director
Serious Fraud Office
United Kingdom

M s. Rebecca B. L. Li

Director of Investigation (Government
Sector)Operations Department
Independent Commission against
Corruption
Hong Kong

M r. DatoʼAbdul Wahab Bin Abdul Aziz Director
Malaysia Anti Corruption Academy
Malaysia

18

APPENDIX

2013 UNAFEI PARTICIPANTS
THE 153RD INTERNATIONAL SENIOR SEMINAR
Overseas Participants
M r. Sharif Uddin Ahmed

Chief Judicial M agistrate
Judicial Department
Judge Court, Kishoreganj
Bangladesh

M s. Luiza Cristina Fonseca Frischeisen

Regional Federal Prosecutor
Regional Prosecutorʼs Office ― 3rd
RegionFederal Public Prosecution Service
BrazilM r. Leandro Zaccaro Garcia

Analyst ― Federal Penitentiary Agent
Ombudsman Office
National Penitentiary Department
BrazilM s. Joycelyn Eugenie Roach-Spencer

Staff Officer (Acting Overseer)
Custodial/Horizon Adult Remand Centre
Department of Correctional Services
JamaicaM r. Naser Abdulsalam Alsaraireh

Public Prosecutor and Human Rights
Officer
Legal Affairs Department
Public Security Directorate
JordanM s. Hannah Waithira Maingi

Assistant Director
Probation and Aftercare Department
Office of the Vice President and Ministryof Home Affairs
Kenya

M s. Olivia Achieng Onyango

Officer-In-Charge
Administration, Kenya Prisons Service
Office of the Vice President and Ministryof Home Affairs
Kenya

M s. M arisol Mendez Cruz

Director of Attention to
Recommendations of Human Rights
Organisms
General Direction of Human Rights
Department
Attorney General of the Federal District
M exico19

ANNUAL REPORT FOR 2013
M r. Uddhav Prasad Pudasaini

Deputy Government Attorney
Constitutional and Criminal Cases
Division
Office of the Attorney General
Nepal

M r. Padma Prasad Pandey

Chief Public Prosecutor
Office of the Appellate Government
Attorney
Office of the Attorney General
Nepal

M s. M ary Onyechi Oche

Deputy Controller of PrisonsOperations
Nigerian Prisons Service
Nigeria

M r. Celso Singayan Bravo

Deputy Superintendent for Administrative
Operations
New Bilibid Prison/Superintendent Office
Bureau of Corrections, Department ofJustice
Philippines

M s. Losa Bourne

Senior Planning Officer
Policy and Planning Section
Ministry of Police and PrisonsSamoa

M s. Chirapohn Khagathong

Presiding Judge
Uthaithani Provincial Court
Courts of Justice
ThailandCourse Counsellor
M s. Goh Chin M ien

Japanese Participants
M r. Hiroshi Fujita

Assistant Director
Counselling Intervention Branch
Psychological and Correctional
Rehabilitation Division
Singapore Prison Service

Rehabilitation Manager
Secretariat for the Chubu Regional Parole
Board

M r. Hirohisa Katayama

Deputy Superintendent
Aiko Juvenile Training School for Girls

M r. Takayuki Nakao

Public Prosecutor
Tokyo District Public Prosecutors Office

M r. Eiji Nishimori

Judge
Kobe District Court

20

APPENDIX
M r. Ryotaro Sakamaki

Assistant Inspector
Yoshikawa Poice Station
Saitama Prefectural Police

M s. Akino Tomida

Director
General Affairs Division
Osaka Probation Office

M r. Yoshio Watanabe

Principal Specialist
General Affairs Department
Nagoya Prison

THE 13TH COUNTRY FOCUSED TRAINING COURSE ON THE JUVENILE
DELINQUENT TREATMENT SYSTEM FOR KENYA
M s. Carren Morangi OGOTI

Assistant Director
Department of Childrenʼ
s Services
M inistry of Gender, Children and Social
Development

M r. Sheikh Abdinoor M OHAMED

Principal Childrenʼs Officer
Department of Childrenʼ
s Services
M inistry of Gender, Children and Social
Development

M r. Stephen Gitahi GITAU

Chief Childrenʼs Officer
Department of Childrenʼ
s Services
M inistry of Gender, Children and Social
Development

M s. Brenta Nzisa M ULIChildrenʼs Officer
Department of Childrenʼ
s Services
M inistry of Gender, Children and Social
Development

M s. Teresia Njeri NGUGISenior Principal M agistrate
Judiciary

M s. Florence Mueni MUEMA

Chief Probation Officer
Probation and Aftercare Services
Office of the Vice President and Ministryof Home Affairs

M r. Yusuf OLELA

Chief Probation Officer
Probation and Aftercare Services
Office of the Vice President and Ministryof Home Affairs

M r. Joshua Mutuku KAKUNDI

District Probation Officer
Probation and Aftercare Services
Office of the Vice President andM inistry of Home Affairs

21

ANNUAL REPORT FOR 2013
M s. M ary Nekesa KHAEM BA

Director of Rehabilitation
Kenya Prison Service
Office of the Vice President andMinistry of Home Affairs

M s. Fairbain M uhambe OM BEVA

Superintendent of Prison
Kenya Prison Service
Office of the Vice President andMinistry of Home Affairs

M s. Esther Gati CHACHA

Senior Superintendent
Community Policing, Gender and Child
Protection
National Police Service

THE NINTH SEM INAR ON CRIMINAL JUSTICE FOR CENTRAL ASIA
M r. AITM AGAM BETOV Marat
M ukanovichSpecial Investigator
Investigatory Committee
Mnistry of the Internal Affairs
Kazakhstan

M r. DYUSSEM BEKOV Azamat

Head of Division for Supervision of
Legality in Social Sphere
Department for Supervision of Legality
in Social-economic Sphere
General Prosecutorʼs Office
Kazakhstan

M r. YESSENBAYEV Islamkhan

JudgeSpecialized Inter-district Court on
Criminal Cases of Karagandy Region
Kazakhstan

M r. ALYMKULOV Zheenbek
Almamatovich

Chief of Management on Control
Criminal and Operative Activity
General Public Prosecutorʼs Office
Kyrgyzstan

M r. BAKYRTEGIN Rysbek

Deputy Head
Investigation Department
The State Service on Drug Control
Kyrgyzstan

M s. ASHUROVA Irina Sergeevna

Senior Public Prosecutor
Department of International Cooperationand Legal Advocacy
Tajikistan

M r. CHIKALOV Yury Pavlovich

Deputy Head
Analytical Center
Drug Control Agency
Tajikistan

22

APPENDIX
M r. SAYDALIEV Sirodzhidin
Sayvalievich

ChairmanCourt of Bokhtar District, Khatlon
Province
Department of Judges, Council of Justice
Tajikistan

M r. BOLTAEV Halim Khusanboyevich Senior Prosecutor
Department of Supervision of Executionof Laws
General Prosecutorʼs Office
Uzbekistan
M r. JALOLOV Kurshid Yoqubjonovich

District Prosecutor
Khamza District Prosecutorʼs Office
General Prosecutorʼs Office
Uzbekistan

M r. KAMOLOV Shukhrat M aratovich

Deputy Chairman
Djizak Region Court on Criminal Cases
Uzbekistan

M s. WADA M asako

Senior Immigration Control Officer
Nishi Nihon Immigration CenterJapan

THE 154TH INTERNATIONAL TRAINING COURSE
Overseas Participants
M r. Oribo KINYOSI

District Probation Officer
Probation and Aftercare Department
Vice Presidentʼs Office and M inistry ofHome Affairs
Kenya

M r. Angus Kimega M ASORO

Staffing Officer
Administration Department
Kenya Prisons Service
Kenya

M r. M aumoon JAUFAR

Deputy Unit Head
Custodial Department -Dhoonidhoo
M aldives Police Service
M aldives

M r. Ibrahim NASHID

Sub Inspector of Prisons
M aafushi Prison
Department of Penitentiary andRehabilitation Services
M aldives

M r. Zaw Lynn Aung

Assistant Director
M andalay Central Prison
Prisons Department
M yanmar

23

ANNUAL REPORT FOR 2013
M r. Supachoke KHUANRUECHAI

Penologist
Strategic Administration Division,
Thonburi Remand Prison
Department of Corrections, M inistry ofJusticeThailandM s. Archaree SRISUNAKHUA

Director/Warden
Department of Corrections, Sawankhalok
District Prison
Ministry of Justice
ThailandM r. Tito Faupala KIVALU

Probation Officer Grade 1
Youth Justice and Probation Division
Ministry of JusticeTonga

M r. Kalavite TAUFA

Chief Prison Officer
Prisons Department
Ministry of Police
Tonga

Course Counsellor
M s. Lina Burdeos ESPERE

Observers
M r. NG Kee Hang

M s. JEONG Hyeri

Japanese Participants
M s. Fumiko Akashi

Regional Director
Parole and Probation Administration
Department of JusticePrincipal Officer
Hei Ling Chau Addiction Treatment
CentreHong Kong
Director
Welfare Division
Cheonan Correctional Institution
Korea

Probation Officer
Tokyo Probation Office

M r. Junpei Kuwana

Chief Supervisor
Mie Prison

M s. Yuko M atsushima

Psychologist
Fuchu Prison

M r. Kuniyuki Murata

Public Prosecutor
Aomori District Public Prosecutors Office
Hachinohe Branch

M r. Hiroki Ogata

Public Prosecutor
Utsunomiya District Public Prosecutors
Office24

APPENDIX
M s. M iho Sugahara

Probation Officer
Osaka Probation Office

M r. Toru Tanzawa

Chief Inspector
Chiba Prefectural Police Headquarters

THE 155TH INTERNATIONAL TRAINING COURSE
Overseas Participants
M r. Azer Ramiz Taghiyev

Adviser
General Department of Legislation
M inistry of JusticeAzerbaijan

M r. Tandin Dorji

Officer Commanding
Nanglam Police Station, Division VIII
Royal Bhutan Police
BhutanM r. Sonam Tashi

Officer Commanding
Thimphu Police Station, Division XI
Royal Bhutan Police
BhutanM r. Kinlay Wangdi

Legal Officer
Legal Division
Crime and Operations BranchRoyal Bhutan Police
BhutanM r. Andrey Borges de M endonca

Federal Prosecutor
Federal Prosecutor Office of Sao PauloFederal Public Prosecution Service ofBrazilBrazilM r. Almamy M oussa Bah

Division Chief
National Room of JusticeInternational Cooperation
M inistry of Justice
GuineaM r. M ahmood Saleem

Assistant Public Prosecutor Gr.3
The Head of Prosecution Department
Prosecutor Generalʼs Office
M aldives

M r. Abdulla Shatheeh

Head of Department
Fraud and Financial Crime Department
M aldives Police Service
M aldives

25

ANNUAL REPORT FOR 2013
M r. Alexandru Victor Bejenaru

Criminal Investigation Officer
Criminal Division
Balti Police Inspectorate of General Police
Inspectorate of Ministry of Internal
Affairs
Moldova

M r. Prakash Dhungana

District Judge
Ilam District Court
Nepal

M r. Parmeshwar Parajuli

District Government Attorney
District Government Attorney OfficeDhanusha, Office of the Attorney General
Nepal

M s. Unchalee Kongsrisook

Forensic Scientist, Professional Level
The Bureau of Forensic Biology
General Institute of Forensic Science
Ministry of Justice
ThailandM s. Bhornthip Sudti-Autasilp

Chief Research Judge
Supreme Court, Office of the Judiciary
ThailandM r. Oleh A. Harnyk

Senior Prosecutor
Main Department for Organization ofParticipation of Prosecutors in Criminal
Proceedings in Court, General
Prosecutorʼs Office of Ukraine
UkraineM s. Svitlana M ykolaivna Olinyk

Deputy Head of the Division forInternational Relations, European
Integration and Protocol
Main Department for International Legal
Cooperation and European Integration
Prosecutor Generalʼs Office of Ukraine
UkraineM r. Vitalii Snegirov

Judge
Brianka City Court in Luhansk Region
UkraineM r. Gray Luawa Bani Vuke

Commander of Police State
Prosecution
VanuatuJapanese Participants
M r. Takayuki Fukushima

M r. Tetsuya Hagioka

26

Public Prosecutor
Nagoya District Public ProsecutorʼsOfficePublic Prosecutor
Kobe District Public Prosecutorʼs Office
Himeji Branch

APPENDIX
M r. Hiroshige Kawata

Narcotics Agent
Narcotic Control Department
Kanto-Shinetsu Regional Bureau ofHealth and Welfare

M r. Shuusuke Kiyota

Public Prosecutor
Niigata District Public Prosecutorʼs Office

M r. Toru Kodama

Coast Guard Officer
5th Regional Coast Guard Headquarters

M s. M iwa Namekata

JudgeTokyo District Court

M s. M iki Suzuki

Inspector
Shizuoka Prefectural Police

THE 16TH UNAFEI UNCAC TRAINING PROGRAMME
Overseas Participants
M r. Faycal Touti

Examining Magistrate
Chlef Court-Ain Defla Tribunal
M inistry of Justice
Algeria

M r. M ohammad Golam Rabbani

Director
Legal and Prosecution Unit
Anti-Corruption Commission
Bangladesh

M r. M ohammad Saidur Rahman

Director
Anti-Corruption Commission
Bangladesh

M r. Vladimir Barros Aras

Federal Prosecutor
Secretary for International Legal
Cooperation
Federal Public Prosecution Service ofBrazilBrazilM r. Norith Nuon

Deputy Director General
General Department of Operation
Anti-Corruption Unit
Cambodia

M r. Abraham Kipkoech Kemboi

Technical/Surveillance Officer
Investigation and Asset Tracing
Ethics and Anti-Corruption Commission
Kenya

M r. Obuo Martin Otieno

Attorney
Evidence Analysis
Ethics and Anti-Corruption Commission
Kenya

27

ANNUAL REPORT FOR 2013
M s. Evah Wacuka Thingini

Forensic Investigator/Audit
Investigation
Ethics and Anti-Corruption Commission
Kenya

M r. Wambugu David Gathii

Acting Director
Directorate
National Anti-Corruption Campaign
Steering Committee
Kenya

M r. Oleg Crismaru

Senior Criminal Investigative Officer
Department for Criminal Prosecution
National Anticorruption Centre of Republicof M oldova
Moldova

M r. Alexandru Donciu

Senior Investigative Officer
Office for Prevention and Fights Against
Money Laundering
National Anticorruption Centre
Moldova

M s. Khin M yat Tar

Staff Officer
Law and Procedure Department
Supreme Court of the Union
MyanmarM r. M yo Khaing Swe

Director
Legal Opinion and Prosecution Branch
Bureau of Special Investigation
MyanmarM r. Abraham Nikolous Ihalua

Senior Investigation Officer
Investigation and Prosecution
Anti-Corruption Commission
Namibia

M s. Justine Nduuviteko Namukwambi

Chief Investigation Officer
Investigation and Prosecution
Anti-Corruption Commission
Namibia

M s. Oris Idalmis Jaen FernandezCommissioner
Disciplinary Superior Board
Panama National Police
PanamaM r. Apichai Thongprasom

Deputy Provincial Chief Public Prosecutor
Samutprakan Provincial Public Prosecution
OfficeOffice of the Attorney General
Thailand28

APPENDIX
M r. Rosito Amaral

Senior Investigator
Investigation
Anti-Corruption Commission
Timor-Leste

29

PART TWORESOURCE M ATERIAL SERIES
No. 93Work Product of the 156th International Senior Seminar“Protection for Victims of Crime and Use of Restorative Justice
Programmes”

UNAFEIVISITING EXPERTSʼPAPERSCRIME, COLONISATION AND COMMUNITIES
Dr. Brian Steels

I. INTRODUCTION
1 and that desistance from crime occurs
With the knowledge that crime can be viewed as ʻ
relationalʼ
away from the criminal justice system2 inclusive of police,courts,prisons,parole and the judiciarymay
be able to improve both process and outcomes by using a variety of restorative justice approaches3.So
too, as M aruna and Immarigeon4 suggest “the major correlates of desistance from crime identified inresearch
involve ongoing,interactive relationships that can take up most of an individualʼ
s wakinglife”.Furthermore,it is noted that relationships developed and supported during restorative encountersand circles are crucial to enable desistance from crime.5

It is also important that discussion takes place around the policies that drive the overuse of thepenal estate in many countries of the region,most notably Australia.Communities have been made nosafer and victimization has failed to be reduced by the building of more prisons and yet policy makers
and politicians view these institutions as the quick fix for many unspoken social ills. If the regionʼscriminal justice systems were to be judged on producing fair and just processes and outcomes, as
experienced by victims and perpetrators and respectful of all human rights,they would most likely befound wanting in both ethics and in their breach of rules regarding integrity.Sadly these self-propelledjuggernauts increase the size of their own bureaucracies out of all proportion to the benefits that they
provide to victims, the community and those who commit harm.
With British colonisation of the Indian continent,Singapore,Burma,Australia,and New Zealand,came the importation of the British legal system with its accompanying public service and burgeoning
bureaucracy. Embedded within this were the assumptions about education, race, crime, property andpower as well as the argument to suggest the superiority of the Western way of life. A frontier
6
mentality challenged Robert Peelʼs notion that “
the police are the public and the public are the police”
slowly transforming a community based service into a paramilitary operation.In turn the ready-madejustice system,driven by self-serving bureaucracies,protected the new landowners,business developers
and industries,ensuring the removal of local populations,especially indigenous peoples throughout theregion,from land and full citizenship.However,this colonization was not only a British move,but one
used for commerce and trade by Dutch, French and Spanish interests who, like their British counterparts,used military force and European systems of law and justice to hold onto land and maintain theexcesses of power.Todayʼs colonizer could be seen as the US,with tentacles of its own brand of justiceexported through literature, commerce, media and politics.
It is within this set of assumptions that todayʼs criminal justice systems are developing, often
imposed throughout the jurisdictions of the region as law and order policies by powerful lobby groups,
politicians and their civil service.Growth in the fear industry creates the conditions for high incarceration rates and more policing, more criminal acts legislated and more charges laid. With an array of
bureaucratic measures that slowly but surely became self-serving a growth industry was born aroundCo-authored with Dr. Dot Goulding.
1Burnside & Baker 1994;Braithwaite 1989.
2Farrall 1995.
3Goulding & Steels 2006.
4M aruna and Immarigeon 2004.
5Goulding and Steels 2006.
6Nazemi 2009.

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RESOURCE MATERIAL SERIES No. 93
punishment and incarceration. It is the marginalised, poor and oppressed who are always the first to
be dispossessed and incarcerated,a move that continues today,almost ensuring the removal of people
from their lands to prison cells. M any of the assumptions held during the early years of occupation
throughout the region have found comfort today within bureaucracies and leading political parties.
Among the most obvious are the notions that “once a criminal,always a criminal”and referring to all
people seen as “
the other”with taunts of “
you canʼt trust any of them”.
Although independence and self-government has arrived across most ofthe region,Western assumptions about law and order had already permeated the criminal justice systems of many nations
throughout Asia. These assumptions about crime, society, community and family challenged ways oflife and philosophies of many regional states particularly where Eastern philosophy was held in highregard.An examination of past practices from around the world clearly shows that “both violence andpeacemaking have shaped the overall human experience.In short,human beings are often,at one timeor another, both conquered and conquerors”.7 This binary state of peace and violence is the “starting
point for many nations and communities as they try to live in global peace and harmony
this is abalance not always peacefully achieved”. Furthermore, as the authors note from several developing
projects,notions of reparation and healing of the environment as well as the harm done to others,takes
shape through the broadening of restorative notions and peace-making principles that address thetotality of human activity,relationships and interconnectedness.It is here that we are able to bring into
focus a glimpse across borders, cultures and national concerns and link RJ (Restorative Justice)with
better compliance to rules, fairness in process and just outcomes within diverse cultural contexts.
Western notions of criminal mediation are vastly different to the local Panchayat focus in an Indianvillage or the gatherings of the Pukhtoon Jirga in Afghanistan.
An example of the remnants of the colonial past can still be found in India where reform of its
criminal justice system is crucial to ensure timeliness,fairness and equitable access to legal recourse.
This requires a move from its bureaucratic overburden of red tape and incompetence to responding to
the needs of local people wishing to experience fair process and just outcomes.Within the Buddhist and
Hindu traditions harmony and balance between nature and human activity was sought,informing waysof dealing with rule breaking. Today the Indian criminal justice system fails most litigants as thesystem sinks under the huge demands made upon it to deal with small and localised disputes.It is withinAsiaʼ
s largest democracy that corrupt practices exist and where according to Thilagaraj8 police are“known to extort money at every step”and where tasks are “quite often neglected outright”. The
Indian experience for both victim and offender is often dependent upon status,power and wealth.Quah9
suggests that “corruption results from the combined effect of ample opportunities,low salaries,and thelow possibility of detection and punishment for corrupt behavior”, arguing that this is not a problem
in Japan,Singapore and Hong Kong where corruption is seen as being of high risk and low reward.To
ensure that fair and just processes occur in Indian everyday life a cultural shift has to occur acrosssociety towards restorative and therapeutic practices that can be afforded to everyone living within asociety that is socially aware and just. Privilege, position, power and prestige all too often hold thehallmark of corruption.
That said,the authors note that throughout the region Confucian legal tradition has been noted as
being mostly secular and unofficial, informed by the notion of being harmonious and interconnected
between the human and natural universe where “
ideal harmonious human-society relationships andharmonious human-nature relationships were sought”.10 The conflict between Western legal systems
and the many local jurisdictionsʼways of dealing with legitimacy,compliance and law breaking is now
at a crucial point in the early stages of the 21st century. It is within this contested space where thevalues and practices of restorative justice can be found as commonplace among local people who
recognise crime as belonging to them, or within a government controlled space that forms part offormalized procedures and highly regulated and dominating services where legitimacy is often inquestion and fairness is decreed by the state.
7Steels & Goulding 2012.
8Thilagaraj 2013:201.
9 Quah 2013:31.
10 Lui and Palermo, 2009:52.

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156TH INTERNATIONAL SENIOR SEM INAR
VISITING EXPERTSʼPAPERS
Hope for change is in the air as communities throughout India and the sub-continent as well as inJapan,Taiwan,China and Indonesia begin to demand fair practices and processes to address the needsof those harmed by perpetrators as well as by lawyers who often try to avoid the full weight of the law
being applied. So it is that hope for a better future lies within each family, community and nation as
they turn to restorative practices across all harm-making from the micro aspect of individuals to themacro aspect of nation building, peacemaking and truth and reconciliation commissions.

II. RESTORATIVE PRACTICES THROUGH THE CRACKS AND
THROUGHOUT THE REGION
The ultimate aim of reducing victimisation and violence,increasing trust in the common good andencouraging support for the social contract can be achieved through the development of new pathways
throughout the region. Restorative justice can and should be viewed as a positive response to combat
crime,anti-social activities and war as these are all behaviours that bring harm to others.RJ can also
be viewed as a crucial tool for the region where local, cultural and gender appropriate practices are
required as the norm in order to foster healing and promote responsibility taking. However, let us
examine the benefits of RJ as seen by Lord M cNally11 who confirmed his support for RJ, stating:
I am an ardent supporter of the principles of restorative justice.It offers an opportunity not only
to assist the rehabilitation of offenders but to give victims a greater stake in the resolution of
offences and in the criminal justice system as a whole. Victim-led restorative justice can allow
us to make inroads into the re-offending cycle, with the triple benefit of victims avoiding thetrauma of future crimes,the tax payer not having to foot the bill ofmore crime,and a rehabilitated offender making a positive contribution to society.
In his address M cNally speaks of “the evidence for the effectiveness of restorative justice”andreferred to his departmentʼ
s analysis of several restorative justice pilots that showed “
85% of victims
who participated were satisfied with the experience and there was an estimated 14% reduction in reoffending”.These results urged him to reaffirm that the government is “
therefore committed to making
use of restorative justice in more areas,and in more circumstances across the criminal justice system”.
Indeed, others have argued that restorative justice is best located within local culture, communities,
customary laws and by-laws12. It has to be responsive to local crime and re-offending through unique
responses.It needs to be driven bythe voices ofthose people harmed as well as those taking responsibility for their actions together with communities and practitioners, academics and respected local
people.13 RJ is all about process and can be considered a participatoryprocess ofhealing that can occur
inside or outside of the criminal justice system. The authors also note the contention that “
the major
correlates of desistance from crime identified in research
involve ongoing,interactive relationshipsthat can take up most of an individualʼ
s waking life”.14 Farrall15 also found that, in general terms,“
desistance occurs away from the criminal justice system”.
In short,social relationships are central to restoring justice both for victims and offenders especiallywhen crime is viewed as a fracture of relationships within a community. This can also be applied tosustainable practices that work best when conducted at grass roots levels by participatory methods
that are centred on relationships and interconnection with others. However, the authors note that
restorative justice often enters the scene through cracks in rigid processes involving state police andprosecution and judiciaries no longer willing to abandon human rights and social justice.It is usually
the cry for fairness and tears of shame that have allowed the light to enter.Although it was never going
to be an easy task to empower victims of crime,make rehabilitation effective and offer an alternative
to all parties.

11 Lord M cNally,British Peer and Parliamentarian,M inister of State for Justice(UK),in his 2012 address to the AllParty

Parliamentary Penal Affairs Group AGM .
12 Steels 2007;Goulding & Steels 2006;Bevan et al. 2005.
13 Steels, Goulding & Abbott 2013.
14 M aruna and Immarigeon 2004:6.
15 Farrall 1995:23.

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RESOURCE MATERIAL SERIES No. 93
The status quo with its expansion policies driven by the mantra of tough on crime see these failed
systems as a result of a lack of discipline and social order within the community as well as from within
their own ranks.Blame is laid at the foot ofthe marginalised,poor and oppressed as these systems deny
the evidence that continually highlights ineffective practice.Such criminal justice institutions are lessable to provide a process that is experienced as fair and just whilst they continue to ensure that every
crime is exposed throughout the communities as an act against the state.The argument here is that ingeneral terms restorative justice offers victims,offenders and the community a participatory process,one not generally experienced within traditional criminal justice sanctioning.A working definition by
Cormier (2002)defines restorative justice as:
An approach to justice that focuses on repairing the harm caused by crime while holding theoffender responsible for his or her actions, by providing an opportunity for the parties directly
affected by a crime ― victim［s］,offender and community― to identify and address their needsin the aftermath of a crime,and seek a resolution that affords healing,reparation and reintegration, and prevents future harm.
It has been noted previously16 that the Asia Pacific regions hold the worldʼ
s largest populations,
namely China (1.3 billion) and India (1.1 billion) along with Pakistan and Indonesia. These regions
encompass many diverse cultures and belief systems within a matrix of relationships from Buddhism
with its Four Noble truths,the respectful Shinto temples,the simplicity and complexity of Zen,throughto the mystics of India and the Teaching of the Gita.There are also the teachings of the Quran among
the worldʼ
s most populated Muslim country and the words of the Old and New Testaments ofChristianity as well as the teachings of the Torah. The authors also note that the regions include
ancient Confucianism with its philosophyofrestoring harmonytogether with Taoism and the perpetualneed for balance.All of these belief systems exist within nation states that can “
display the politics
of nationalism, communism, capitalism, juntas, democratic governments and dictatorships”.17 The
authors argue that within such cultural diversity it is still possible to find common ground around bothrestorative justice as well as its relationship to ecological sustainability and the reduction of harm to
the planet.For example,the global ability to help others in times of anguish and disaster that crosses
national boundaries and the protocols that relate to a global reduction on greenhouse gases and global
warming.Trying to keep a balance between yin and yang in the maintenance of harmony impacts upon
the young as well as the elderly and knows no limits. Bloodlines can stretch far across land and seas
and it is these interconnections that highlight the many ancient traditions working together withmodern practices and ambitions of restoring peace, harmony and justice. They bring into the 21stCentury the Asian Pacific practices of harmony and peace with the self, among others, within local
villages, small communities and peaceful co-existence between nations.
Restorative Justice has played a role historically in one form or another in China. RJ has now
developed along with the emergence of principles and standards,especially as the process within somejurisdictions has moved into schools, nursing homes, prisons, rehabilitation centres and other institutions.18 A note of caution is registered here as Braithwaite19 raises the concern that standardization canmean a progression of moves that leads the state to maintain control over a restorative process thathas been produced to empower citizens.The authors suggest that these concerns are real and evident.
However,as practices are established among villages and local communities the hand of the state will
hopefully be one of support rather than control,with a balance to ensure fairness and just outcomes are
not motivated by fear but a willingness to engage freely.
Restorative practices along with responsibility taking have also moved from a purely
criminological focus among individuals to include a focus on a nationʼ
s responsibility to its people,
including environmental concerns that impact on quality of life throughout the region. Harm is often
now redefined across borders as nations begin to cooperate to reduce harm among people,species andthe planet. In addition, victim driven policies are fast becoming commonplace where restitution and
16 Steels & Goulding 2013.
17 Steels & Goulding 2013.
18 M axwell 2007;Newell 2007;Braithwaite 2002;Bazemore & Schiff 2005;van Ness, 2003;Zehr 2002;1990.
19 Braithwaite 2002.

36

156TH INTERNATIONAL SENIOR SEM INAR
VISITING EXPERTSʼPAPERS
reparation are expressed as concerns for victims and the communities harmed by crime.20 Though RJ
practices are among new initiatives for dealing with various types ofoffending in manycountries,there
has been a paucity of evidence-based documentation and evaluation of the actual grass roots use of RJ
practices in mainland China.

III. THE REGION
M ediation (tiaojie)has been practiced as a central principle of social control throughout the Greater
Chinese region and has been referred to as being similar to some of the more fundamental restorative
practices in outcome and process.RJ (hufuxing xifa)is noted by several authors21 as more of a Western
style approach to crime,specific to a more traditional Chinese form of social control.Mok and Wong22
agree with others23 that current restorative practices and regimes are replacing many of the traditional
mediation practices across several areas of China. Again, according to Wong and Mok24 the term
restorative justice (hufuxing xifa)has attracted attention from practitioners and scholars since early
2000.25 However, in most jurisdictions the discourse has continued to show a narrow focus.Generally
speaking, the main focus of RJ has been on juvenile crime, specifically on young, first time offendersof petty criminal activity. Such a narrow view of RJ has discriminated against the many victims ofserious crime by adult offenders by denying victims the opportunity to engage in restorative processes.
In addition,the authors argue that the use of RJ in combination with therapeutic outcomes as well as
its use within penal institutions is the way forward to effectively reducing reoffending and revictimisation.26 The prevailing narrow focus on youth and less serious crimes is seen as problematic.
On the other hand,the authors note several ad hoc examples ofvisionaryand progressive practices.For
example,on a recent visit to India the authors were privileged to see,within one of Indiaʼ
s largest andmost populous prisons,a move towards an environmentallysustainable and healing environment where
the linking of harm to self,others,communities and the planet demonstrated a truly holistic interconnectedness.
In this paper we examine across jurisdictions and national borders how to best transform individuals from convicted persons into people who comply with the social and legal demands surrounding
them as citizens, and how best to have people harmed by crime move to reclaim their identify, often
damaged by crime. The authors note that throughout the region informal as well as formal ways ofdealing with wrongdoing are used. It is in Japan that we see the practice of Ji-dan that has a long
tradition of use as a means of conflict resolution. In contemporary Japan Ji-dan remains as a usefulprocess of negotiation between family members and others as a way to resolve a dispute between two
or more parties.It may mean that no direct face to face meetings will occur but that family or trusted
others will negotiate for a fair and just outcome that will save face and restore harmonious relationships. However, it is pertinent to note that Japanese social organization and cultural practices arecentral to the success of Ji-dan. As Komiya27 points out:
As Japanese have obtained a sense of security by integrating themselves with groups,they had
no choice but to strictly adhere to countless rules for group cohesiveness. In this process, theJapanese have become a patient and orderly people,and have successfully elevated their level ofself-control.
Certainly, we can agree that such elevated levels of self-control as seen in Japan are not apparent
within contemporary Australian society where individual rights continue to subsume notions of thecommon good as a societal and cultural norm. However, we note Kittayarakʼs28 remarks that we“have to be mindful that restorative justice is an evolving concept and there is no definite formula
20 Harris, 2008;Johnstone & Van Wormer, 2008;van Ness, 2007.
21 Leng 2011;Li 2010.
22 M ok and Wong 2013.
23 Zhang, 2013;Wong & Lo 2011.
24 Wong and Mok 2010.
25 Ibid.
26 Goulding & Steels 2013.
27 Komiya 2011:132/133.
28 Kittayarak 2005.

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RESOURCE MATERIAL SERIES No. 93
of success
Each country has to find its own recipe which properly balances the conventional roleof criminal justice with this new concept so as to be able to come up with a better way to ensure justiceto all”. The same can be applied to sustainable practices emerging alongside RJ within the notion of
reducing harm. An element of caution should be noted here as all restorative practices and solutions
ought to aim to be compliant with a set of standards as outlined by Braithwaite,29 always cognizant of
human rights.
The discussion is now focused on how the people of the region, including Japan, China, Taiwan,
Indonesia,India and Australia as well as other regional players can take some control over their local
criminal justice systems and their environments whilst power remains invested in the state.Pertinently,
many of these nation states have already established RJ legislation in place and yet do not always
adhere to the basic principles.As Pranis30 suggests,when a community can “
draw on and trust its own
inner resources to discover the validity of a new paradigm,the community is liberated from bondage
from old embedded, fixated ways of being in the world”. It becomes clear that regardless of local
policies and the political ambitions of a few,the community is then,according to Pranis31 “able toembrace the creativity of chaos,the possibility of dreams”.It is from this perspective that she suggests
people are then “empowered to imagine new ways of being, to problem solve on a deep level”.
M eanwhile New Zealandʼs Judge McElrae32 suggests that the criminal justice system will be able to“deliver justice for all, not just for defendants, and that the courts will be left to get on with thejob of judging according to the law and applying principles of respect and compassion for all”.Further
he claims that33
restorative justice offers a quite different view of victimsʼinterests,one that is not necessarily opposed to that of offenders ― and can produce“win-win”outcomes.They are actually what
is aimed at every time.If the Courts could more consistently show that victimsʼinterests can becatered for in meaningful ways (not token ways like victim impact statements), and that theirneeds are better addressed in this way, much of the pressure for tougher sentences would fallaway.
Freiberg34 provides insight to the holistic model when he describes restorative justice joined toproblem-oriented approaches:
The astonishing expansion of restorative justice programs around the world,even in the absenceof solid evidence about their effect on recidivism,indicates that their true appeal is not necessarily utilitarian but symbolic:process is paramount. When this insight is joined with a problemoriented approach which devotes court and service resources to deal with underlying
criminogenic causes, it can provide a powerful alternative to the sterile, costly and ultimately
counter-productive punitive approaches which have resulted in dispirited court and correctional
officers and bursting gaols.
Alternatively, Kittayarak35 claims that the future for restorative practices in the region is only
going to be as good as services allow it to be. There will always be a need for policing and court
services with a separation of the legislators and judiciary,quality prosecution and exemplary lawyers,
and we are all aware of the question mark hanging over much of current practice throughout theregion.We should also be aware that in some instances long court lists,delays in claims for reparationand the marginalization from justice for the marginalized and powerless ensure that many people
currently do not experience fair treatment or just outcomes. However the authors contend thattransformation is occurring, mostly due to the call for change from the grass roots where the impact
29 Braithwaite 2002.
30 Pranis 2010:4.
31 Ibid.
32 Judge McElrae 2010:3.
33 Judge McRae 2010:2.
34 Freiberg 2001:9.
35 Kittayarak 2005.

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156TH INTERNATIONAL SENIOR SEM INAR
VISITING EXPERTSʼPAPERS
or war,conflict and crime requires people to engage at local levels where solutions can inspire personaland community transformation, reduce harm among families as well as communities and acrossborders. Social and cultural change is often driven by local people immersed in the aftermath of
conflicts and crime, policy makers and politicians signing up to international agreements and neighbouring states showing that restorative practices can reduce the strain on the courts whilst offering
procedures that are fair,timely and healing.For the region,restorative justice offers a very important
opportunity to invest in procedural fairness with outcomes that are socially just. It is within the vast
bureaucracies of India and China that we see glimmers of hope as current situations are no longer
tolerable for both the leadership or for the local people. As Van Wormer36 points out, the traditional
Chinese emphasis is on “
harmonybetween persons and on the unityofhumanitywith nature.Influenced
by Confucian communitarian ideology,the Chinese criminal justice system relies on grassroots committees to provide social control and to resolve conflict”.
Villages and other small communities can participate in empowerment strategies and working forthe common good as they engage in social justice,community education and an awareness of restorative benefits. They can turn to restorative justice practices to heal many conflicts including theaftermath of interpersonal and relational crime, communal violence, public disorder and grievances.
This may lead to a sense of purpose for individuals and communities seeking out solutions that assist
in building the communityʼ
s capacity to create harmony whilst reducing crime and anti-social behaviours. Being valued by leadership and having leadership value its citizens will also bring about thetransformation of the region. Tylerʼ
s37 argument supports this:People value affirmation of their status by legal authorities as competent, equal citizens andhuman beings,and they regard procedures as unfair if they are not consistent with that affirmation. To understand the effects of dignity, it is important to recognise that government has animportant role in defining peopleʼ
s view about their value in society. Such a self-evaluation
shapes oneʼs feelings of security and self-respect.
Tylerʼ
s words link the actions of procedural fairness and just outcomes as found within restorative
practices with security and self-respect. They also relate to other practices such as sustainability asmuch as restorative solutions, giving hope to the idea that collectively the region can lead the worldin embracing restorative solutions to relationships between people as well as how we relate to ourenvironment, our communities, other species and the planet.

IV. VICTIMS OF CRIME
Victims of crime, war and community violence are often the unheard voices during the aftermathof such harmful events yet RJ often appears to focus on those who do the harm.Whilst the rehabilitation of perpetrators of crime is crucial for community safety so too is the care of victims. Victim
participation in the aftermath of crime is however clearly identified by various bodies.38 These
documents continue to encourage jurisdictions to provide a broad interpretation. They also set thescene to allow and encourage the voice of victims in various guises.Today we ask that consideration
be given by governments to encourage victim driven RJ practices. Victim driven processes allow
victims to request an encounter with their perpetrator at a date,time and place to suit them in a processof their choice. Such a process would seek to find out how best to encourage and develop RJ into ameaningful and empowering exercise of choice for victims albeit with the supports necessary to ensure
safety, recovery and a full return to community participation.
UN Standards call for the support of victims of war, terrorism and crime. The Rwandan experiences following its civil war demonstrates that victims of crime together with the perpetrators can act
in a fair and just way following conflict. Gacaca is the system of community justice used throughout
36 Van Wormer 2008:3.
37 Tyler 1996:10.
38 Council Framework Decision of the European Union (2001/220/HA);the United Nations Declaration of Basic Principles

of Justice for Victims of Crime and Abuse of Power (1985);the Council of Europe Recommendations for Victims of Crime(R (85)11).

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villages in Rwanda. Rules are few and processes clear whereby all parties listen to each other andaccept the groupʼs decision following apology,restitution and compensation.It is among these village
gatherings where victims find resolution and empowerment as well as having their voices heard.
Sadly,this is not true of all jurisdictions throughout the region.For instance,in Western Australia(WA)victims are only able to participate in an RJ process under the terms set out by the legislatorsand then only with juvenile first time offenders.Victims of repeat offenders and/or adult offenders are
denied the opportunity to meet and participate in restorative processes.The Juvenile Justice Teams area bureaucratic response to restorative justice within the Juvenile Justice legislation but this pseudo
restorative programme fails to answer the needs of victims of crime.And so it is with victims of adultoffenders, as these victims canʼt engage in any restorative process apart from a victim impact statement.For the most part these victims are captured as the witness,a role with limited voice and one thatis unable to transform into participant of a restorative encounter.This is especially true for Indigenous
women,as victimsʼservices are often unavailable outside ofthe major cities and where violence against
women is commonplace. Whilst there have been many calls for restorative justice to be offered as a
response to crime in WA, apart from a successful pilot project,little has been done to ensure that all
victims of crime have an opportunity to participate in a process of their choice.
According to Edwards39 there are four styles or practices whereby a victim of crime can participate
in restorative justice processes. Edwards sees the first as control. This is the most empowering stylethat enables victims to lead the process and make a choice of method of participation.Victimsʼneeds
are catered for with the choice of practice and style of facilitator or mediator at a particular place tomeet and at a time to suit the victim rather than the prosecution and court.The implication here is thatthe criminal justice system will provide for the victimʼ
s preferences.The obligation is on the authorities
to make this happen,an issue that is often raised as criminal justice systems around the region continue
to have few options available. Innovation has to be found within the bureaucratic and legalistic
processes for this to occur. The second style that Edwards suggests is that of consultation whereby
authorities are obligated to find out what the victim wants in terms ofavailable participation processes
and for the system to act accordingly.This consultation often means that the system remains in control
and can only invite the victim to participate in what is already in place. The third style is throughinformation provision whereby victims are obliged to supplyanyinformation that theymayhave to thepolice and prosecution whilst being used as the “body witness”, the “body specimen”or the “bodydamaged”. Edwardʼ
s fourth style is expression whereby victims can express their wishes but theauthorities may or may not act on them.Edwardsʼcontinuum from empowered to controlled can be auseful additional tool in the evaluation of services and together with Braithwaiteʼ
s Standards40 are able
to provide an insight into the degree of participation and values associated with victims of crime.

V. PROCEDURES AND STANDARDSBraithwaite41 argues that throughout human history “restorative justice has been the dominantmodel of criminal justice”. Bottoms42 on the other hand, suggested that threats, punishment andcoercion were the order of the day for settling disputes in pre-modern societies. The authors suggest
instead that a degree of restoration and restitution may have existed as a notion of the common good.
These notions of justice are woven through the social connections between communities,families andkin,holding together the values that lend themselves to the larger social and moral order.Tyler43 andhis work around Restorative Justice and Procedural Justice sees a major link between social compliance, rule breaking and restorative processes. He contends that:
Procedural justice research suggests that there is another possible route to effective social
regulation besides punitive punishment (Tyler, 1990;Tyler & Huo, 2002). This route involves
39 Edwards, I., (2004). An Ambiguous Participant: The Crime Victim and Criminal Justice DecisionM aking. British

Journal of Criminology, 44, 967-982.
40 Braithwaite, J., (2002b). Setting standards for restorative justice. British Journal of Criminology 42, 56377.
41 Ibid.
42 Bottoms 1999.
43 Tyler, 2003;2006.

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treating people with procedural justice and respect. When people are so treated,they view law
and legal authorities as more legitimate and entitled to be obeyed. As a result, people become
self-regulating, taking on the personal responsibility for following social rules. This approachhas been labelled a process-based model of regulation.
Interestingly,with regard to processes following disputes,including apology,Tavuchis44 notes that“no matter how sincere or effective,an apology does not and cannot undo what has been done.And yet,in a mysterious way and according to its own logic, this is precisely what it manages to do”. The
authors experiences within prisons,courts and communities has demonstrated that whilst science cantry to control and predict, determine and state, the human spirit is able to astonish us with its
complexity of responses to crime, including the ability to let go.
Braithwaite45 identified three types of standards for assessing and maintaining the quality of RJ
practices with the following caution “
whether a restorative justice programme is up to standard
is best settled in a series of regulatory conversations with peers and stakeholders rather than by rote
application of a rulebook”.Braithwaiteʼ
s first tier identifies“
constraining standards”and includes nondomination, empowerment, equal concern for all stakeholders, respectful listening, honouring legally
specific upper limits on sanctions and the respect for human rights. The second tier highlights the“maximising standards”such as the restoration of human dignity,property loss,restoration of humanrelationships freedom,compassion peace sense ofcitizen duties and other social support and preventionof future injustice. Braithwaiteʼ
s third tier standards are the “emergent standards”such as remorseover injustice, apology, censure of the act, forgiveness of the person and mercy. Braithwaite46 states:
The constraining list are standards that must be honoured and enforced as constraints; themaximizing list are standards restorative justice advocates should actively encourage in restorative processes;the emergent list are values we should not urge participants to manifest ― they
are emergent properties of a successful restorative justice process. If we try to make themhappen,they will be less likely to happen in a meaningful way.These,especially when linked tosustaining an effective strategy for compliance with the law, lead to a better understanding ofprocesses that are experienced as fair and just.
Also, Tyler,47 when dealing with compliance, suggests that we would “
benefit from being in asituation in which people have additional reasons for obeying the law beyond their fear of being caught
and punished for wrongdoing”.
Throughout the many regional criminal justice systems the legitimacy of authority is often questioned and frequently made worse by processes that are mandatory and at times used without goodreason other than to maintain control. To provide processes that are participatory, fair and just, as
well as being used for the safety of everyone within the community, is a major point that is often
overlooked in the process of rehabilitation within the courts and penal estates. Tyler48 illustrates thepathways that people walk from non-compliance to compliance as they recognize and act on procedural fairness and legitimacy of the authority. Tyler49 also claims that:
One way to encourage people to view law as legitimate is for legal authorities to act inprocedurally just ways. For example, studies suggest that procedural justice during personal
experiences with authorities is important because it builds the social value of legitimacy(Tyler,2004). Legitimacy, once activated, then encourages everyday compliance with the law. Hence,legal authorities receive more citizen cooperation when people generally view them as legitimate. People, who have more supportive social values, are easier for legal authorities to deal
with during personal encounters.
44 Tavuchis 1991.
45 Braithwaite 2002.
46 Braithwaite 2002:571.
47 Tyler 2006:210.
48 Ibid.
49 Tyler 2006:312.

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Not only do Tylerʼs words underpin the need for legitimacyto be recognized and experienced within
the community but also within the criminal justice system.Tyler explains compliance in direct relation
to being treated fairly and justly.This includes being given the opportunity to engage in positive social
values and shown a direction by a legitimate authority such as from parole,police and prison officers
and other professional staff and officers. Legitimacy is often questioned of poor quality policing andis at the core of non-compliance among many people. Again Tyler50 adds to this by suggesting that:
Experiencing procedural justice, either in particular personal experience or in the everyday
functioning of the law,is important because it encourages feelings of responsibility and obligation to follow the law―i.e., it increases the legitimacy of the law and the legal system. Hence,
procedural justice suggests that possibility of a legal system based more heavily upon voluntarycooperation of process-based regulation.
As a cautionary measure it is important to note that a sense ofpurpose is something that we all needand so it is with the criminal justice systems of the region,for the system itself needs criminals and has
to continually create rules and regulations that criminalize and remove people from society.In doing
so the criminal justice system often fails to address the systemic issues that underpin crime.These areissues such as poverty, homelessness and dispossession. The authors also contend that the prevailingpromotion of restorative justice through a “Western”view of processes and methodologies perpetuatesa purely Western hegemony that diminishes the underpinning values of restorative justice.We continually note rigidity and conformity, which presents a “west is best”criminological discourse throughliterature and practices.Therefore it is pertinent here to reflect on Braithwaiteʼ
s51 standards that speak
to the empowerment of participants and the opposing control by services over them.
Evidence and innovation from below instead of armchair pontification from above should be what
drives the hope ofrestorative justice to replace our existing injustice system with one that actuallydoes
more to promote justice than to crush it.

VI. A PROCESS OF EMPOWERING AND HEALING:RESTORATIVE JUSTICE
Restorative justice is about people who have been harmed and people who have harmed them,
together with support from both parties. As a process RJ doesnʼ
t have to be encumbered by tightregulations,yet attempts are often made to make it so.52 The RJ process doesnʼ
t have to be inflexible
although departments within the system often demand that certain victims cannot be given theopportunity to meet the person who harmed them due to the nature and severity of the crime, or theoffenderʼs perceived lack of remorse, unsuitable demeanour or closeness to the victim.It is as though
the victim does not know best or is acting in a way that is likely to decrease the sentence. These
predominantly “
western standards”engulf community practices as Steels53 noted whilst developing acommunity response to crime where the autonomy of local people was challenged by service providers
operating under regulatory and bureaucratic parameters from outside of the local community.This isoften the case among poor and marginalised communities that wish to be a part of the solution to local
crime and want a say in how the processes are to operate.However,with the urgent call from victims
of crime and their supporters, far from the trappings of power, many government agencies andacademics are beginning to note the call to break from dominating parameters and limited flexibility
that often engulf the innovative, local and culturally balanced processes.
The above practices provide opportunity to break from what Braithwaite terms “domination”
within restorative practices.In defining domination,Braithwaite54 argues that domination means “if astakeholder wants to attend a conference or circle and have a say, they must not be prevented from
attending. If they have a stake in the outcome, they must be helped to attend and speak”. Further,
50 Tyler 2006:313.
51 Braithwaite 2002:569.
52 Steels 2008.
53 Ibid.
54 Braithwaite 2002:565.

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Braithwaite55 maintains that, “any attempt by a participant at a conference to silence or dominate
another participant must be countered”. It is within the understanding of domination and liberation
within restorative solutions that both regimes will be constantly engaged as both have to contend withprisoner and staff movements and their attendant training and practices.
On the one hand, governments have moved closer to restorative justice practices but,on the other
hand, they have often redefined RJ by building it into existing and often closed regimes.This is donewith limited foresight as well as a lack of insight into the broader applications of the process.In turn,many jurisdictions have attempted to keep tight control,lessening the ability to empower and support
those most harmed and decreasing opportunities for all participants to tell their stories.How governments respond to crime through their courts and justice services is often a concern with regards tohuman rights and fair process. If governments are to produce quality restorative practices, then newservices will have to be designed,delivered and regulated to reflect liberating rather than controlling
governance, striking a balance between the needs of offenders with the needs and aspirations ofvictims.Without such safeguards new practices and services can end up as what Pelikan56 describes as
overtly legalistic formalities and regulatory controls that fail to deliver a high degree of satisfactionin terms of access, process, timeliness and outcomes.
Early restorative practices began as a voluntary encounter between a person who has harmed
someone and the person who experienced that harm.Nils Christie57 claimed that conflict should be seenas the property of those with an interest in it.That is,the offender and the person(s)offended against
rather than the property of the state. Over a period of time these processes have often become“all-encompassing diversionary practice”58 far removed from families and communities and theirproblem-solving responses to crime. A good example of this style of bureaucratic diversionary
measures comes from Western Australia where strict state control determines and limits access to any
restorative practice. On the other hand, good examples flourish internationally and it is these breakaway processes from the tightly controlled and institutionalised criminal justice systems that form
where conformity is most often demanded.They are the light getting into the cracks of strict control.

VII. THE HEART OF RJ:STORY TELLING AND NARRATIVES
Set at the heart of the restorative encounter and within any of the restorative justice or healing
circles59 is the period of time in which all participants are encouraged and supported to share examplesof their life,leading up to and including the recent events that have brought them together with othersin the aftermath of crime, war and/or conflict. This is best described as unscripted story telling or
free-flow conversations where facilitators encourage empathy, support questions and allow for pastand current narratives. Steels and Goulding60 argue that it is through participation in restorative
encounters,first among those who have produced harm together with their family and then among all
those who have been harmed that we are presented with an opportunity to consider our conduct as itpresents;
the ability to reflect rationally upon our actions and those of others is often the starting
point after we have caused harm or experienced being harmed by another.It is a crucial time to
be able to have the space to review our lifestyle, to think of cause and effect, to think of what
has occurred and to go over in our heads those often catastrophic and defining moments.61
It is within this balance of personal and shared space where reflection and admission,hurt and fear

55 Ibid.
56 Pelikan 2000.
57 Nils Christie 1997.
58 Pelikan 2000:150.
59 Steels and Goulding suggest that three circles are used in any RJ process. The first is with the harmmaker and theirfamily and supportive people,the second is with the people most hurt,injured or harmed,together with their family andsupport, and the final circle or encounter is set among all of the participants from the first two circles.
60 Steels and Goulding 2013:388.
61 Ibid.

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all build up into a greater awareness and where the personal and often tragic storylines begin. As
Braithwaite62 notes in his essay Setting Standards for Restorative Justice, the process allows people tofeel empowered regardless of socio-economic status, age or gender.63 Braithwaite further highlights
Pranisʼsuggestion64 that people will listen to those in high office or power but will ignore those thatare not.Restorative justice allows all those involved a chance to tell their story and for those aroundthem to listen. In this way giving the storyteller a sense of empowerment. These encounters help tocreate an environment of trust and fairness throughout the circle,giving balance in terms of time andfrequency with a talking piece. It is among these circles where passion and emotions flow, that
Braithwaite65 sees the presence of “
relatives, friends or a personally relevant collectivity”act tochallenge personal actions and make amends for the future largely because“repute in the eyes of closeacquaintances matters more to people than the opinions or actions of criminal justice officials”This
also compliments Tylerʼs66 notions that where encounters increase the motivation to transform andchallenge the immediate behaviour as well as any future actions in a way that encourages respect fromclose family and associates. It also enhances self-image and leads to compliance with the law in the
future.
For many people the free-flowing process within these series of circles provides an opportunity forparticipants to engage in a way that seeks to heal the aftermath of crime,resolve various questions andenable discussions to take place with regard to future directions and positive outcomes.For some,thisprocess comes a little easier when it is shared within a safe environment and where only one or two
rules exist. One very important rule is to ensure that only one person speaks at a time. Another is to
ask that truth be spoken without fear or prejudice but with respect. To enable these stories to assist
in the problem solving restorative and healing process the following ideas may be of use. They areoften used by the authors within and outside of the formal justice system and can be used in conjunction
with story-telling or other ceremonies. With all story-telling and yarning circles a good amount ofsilence is encountered. This is to be honoured and respected as a part of the ceremony. Flexibility is
the key to this restorative encounter that may last longer than most restorative justice encounters.It
may be spread over days or hours rather than a rushed event especially when it is dealing with serious
and repeat offending from within a smaller community or large family.Timeliness is crucial for courts
and justice services but not always so for many traditional or customary circles.
The cross over and mix of traditional and modern or between Western and Eastern processes shows
the flexibility of facilitators, participants and process. It should be able to accommodate people ofdifferent or no religious faith, various cultural backgrounds and cross-cultural communities. Stories
are often so rich that they give life to the encounter in a way that more formal courts are unable toprovide.

VIII. THERAPEUTIC COURTS AND THERAPEUTIC COMMUNITIESThe authors note from Tylerʼ
s67 that to treat people badly or to give them an experience of injusticein the early stages of contact with the criminal justice system often means that they, together withfamily and friends,fail to be compliant and respectful of the law in the future.Fairness always needs
to remain crucial to any restorative encounter as well as the legitimacy of the criminal justice process
for being unfairly treated disrupts “the relationship of legitimacy to compliance”even more than
68 .All participants must be in a position to feel that they are being treated“receiving poor outcomes”
fairly and respectfully.Combined,the therapeutic,restorative and procedural justice concepts provide
all parties with an opportunity to feel satisfied with both the process and outcome. In addition,
processes should not bring about harm.Winick (2003:26)claims that therapeutic jurisprudence “shouldvalue psychological health, should strive to avoid imposing anti-therapeutic consequences whenever
62 Braithwaite 2002:564.
63 In Pranis 2007.
64 Ibid.
65 Braithwaite 1989.
66 Tyler 2006:pp. 307326.
67 Tylerʼs work 1990.
68 Ibid.

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possible, and when consistent with other values served by law should attempt to bring about healing
and wellness”.Combined with restorative justice and the participation of people who have experienced
harm the therapeutic jurisprudence process is a good companion for restorative justice practices wheresuch ideals are seen as the sum total of the circle process for all participants.
When preparing for the first circle,or the first part of a meeting or conference,facilitators should
be aware of Sykes and M atza69 processes of neutralisation that include;denial of responsibility;denialof injury; denial of victim; condemnation of the condemners and appeal to higher loyalties. If not
exposed,these notions will continue to deflect blame on others rather than allow a space for offenders
to take responsibility.Alternatively they may then erupt or lay dormant just under the surface during
the first circle.
Focusing on one specific group of people as offenders within the criminal justice system can be
helpful if the process used is one that is culturallyappropriate,respectful to traditional law,and doesnʼ
tproduce further harm especially among those people who are victimized bythe crime.But it also brings
limitations and assumptions about the court process. Whilst it is a positive move to engage withperpetrators in a manner that is respectful perhaps even in a special First Nation court with local
Elders,the process may leave out cultural,traditional and customary representations for First Nation
or Aboriginal victims of crime. If the person most harmed by the crime is a First Nation person thena number of safeguards must come into being.The first is that a fair and just process is provided,onethat protects their right to be heard in a safe and secure environment. The second is that they are
assured of protection from re-victimization and further abuse. Victim support services in rural andremote areas of some states find themselves lacking the resources to engage with even the mostseriously victimized people. With regard to a perpetratorʼ
s family there could be good reason for theperpetrator and his/her family to be provided with an opportunity to engage in ceremonies that heal
the group,assist with an apology and restitution and acknowledge the shame that has descended uponthem.
The authors pose the question of how this process might work in a cross cultural situation wherethe victim of crime is a member of a First Nation or Aboriginal person and the perpetrator is not.Do
we ensure that the court acts respectfully and in a culturally appropriate manner towards the victim
of crime,including the treatment of them bythe media?One wayto ensure that we treat all participantsin a criminal justice process fairly, justly and in a culturally respectful way is to offer a restorative
process to all people who are willing and able to participate.This includes listening to victims of crime
who ask for a facilitated encounter with their offender even when the prosecution opposes such apathway. It would also assume that any victim of crime, not only victims of first offenders,would be
invited to attend or able to request an encounter with the perpetrator and the perpetratorʼ
s family.This
would serve to provide all victims of crime with the same opportunities to participate.In this way all
people are treated respectfully with recognition of their cultural, traditional and customary needs.
Finally we strongly advocate for restorative processes to be made available in every court, linked tothe philosophy and practice of therapeutic jurisprudence where the voices of all participants in a
restorative encounter are able to be heard.
The following diagram shows restorative justice and therapeutic interventions from the point ofcontact with the police to breaking away from the criminal justice system.To be effective it requires
a high degree of procedural fairness.

69 Sykes and Matza 1957:664670.

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Sadly and all too often the authors note a connection to the criminal justice system at an early age
followed by further connections leading to and from juvenile detention centres and later the adultprison system.This is particularly true of the Australian and New Zealand systems.Scholars attribute
this cycle of crime to various inter-connected factors. Individual behaviours are questioned together
with a lack of societal discipline70 poor socioeconomic conditions within families and communities
together with a lack of support;71 colonisation and intergenerational trauma,72 and other structural
factors due to geographic location,language,under-employment and drug and alcohol fuelled violence.
Whilst any one or more of those conditions may be prevalent within a family home or community it
may also be attributed to current “
tough on crime”policies widely heralded across Asia.However,itis also due to the enormous gap referred to by Casey73 as he highlights the gap in social and economic
wellbeing between Indigenous and non-Indigenous people. Casey reports on the Australian situation
noting that “
the discrepancy between the social and economic well-being of Indigenous and nonIndigenous people could be described as a vast gulf, rather than a ʻgapʼ”. As Indigenous people
throughout the region find themselves more and more marginalized especially in India,Taiwan,Japanand China, restorative practices may assist them to have their voices heard.
The results of these regional policies are but a warning of the danger of building more courts andprisons whilst failing to use therapeutic,problem solving and restorative environments.It is important
to consider a policy redirection towards effective solutions that apply smart, fair and just processes.
The evidence to date suggests that therapeutic and restorative interventions help to provide empathy
for others, improve social connections, are inclusive of victims and look to local and community
solutions.Problem-solving courts,restorative practices and therapeutic communities seek answers,canplace the criminal act within a context,listen to solutions and are focused on healing the aftermath ofcrime whilst aiming to reduce re-victimization.They challenge offending or harmful behaviour whilst
providing support. They include all stakeholders and empower participants. Perhaps cynically, theauthors question whether the problem with these progressive, problem solving ideas is that they will
reduce imprisonment whilst allowing funds to be channeled where they are needed―to victims,
perpetrators and their networks―our communities.
70 Weatherburn et al., 2003.
71 Blagg 2005;Steels 2008;Goulding et al., 2006.
72 Atkinson 1990;Steels 2008;Cunneen 1999.
73 Casey 2007.

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IX. PRISONS OF THE FUTURE:RESTORATIVE, SUSTAINABLE AND
PROBLEM SOLVING
Victims of crime throughout the region are often not fully compensated for the harm and losses thatthey incur and the overuse of imprisonment fails to make their communities feel safer.Further,victims
of crime seldom have a role to play in the penal estate apart from ad hoc occasional circumstances.
Regionally,prisons do not reduce crime but conversely are often themselves criminogenic,providing alearning environment among people who have already been convicted of crime. Goulding, Hall andSteels suggest that the community gains few benefits from prisons “because the continued high cost ofincarceration eats into the public purse with ever increasing imprisonment rates”.74 Their economic
cost demands a thorough examination in terms of social and economic costs. For example, currently
the cost of keeping each adult prisoner in custody in Western Australia is $115,000 per year (DCS,WA,
Annual Report 2010-2011)and rising.
Alternatively, restorative processes throughout the prison can offer victims, offenders and thecommunity greater participation and improved outcomes than traditional criminal justice processes.
The restorative prison, according to Coyle75 is able to “present prisoners with a series of duties,
challenges and learning opportunities”.A key factor in a restorative prison is an environment of safety
for prisoners and prison staff.There is no doubt that many obstacles have to be overcome in transforming current prisonsʼpunitive regimes to restorative practice. This is something that we are now
undertaking in collaboration with partners from Europe. Newell76 contends that the tension between
restorative processes and traditional prison modes are still troublesome,maintaining that “restorative
justice requires respect, the assuming of responsibility and the freedom to solve problems by those
involved in the conflict”.Another conflict facing many jurisdictions keen to design innovative restorative practices within the penal setting is risk averse government ministers and their departments.
Attempting to balance risk with progress often sees good ideas shelved, although our science on the
topic is improving. Whilst the process is difficult it is worthy of closer examination.
A restorative prison would continually challenge criminal behaviour in order to and reduce revictimization through comprehensive and effective, restorative and transformative programmes. All
members of a holistic prison environment including residents in custody, management and staff arecalled upon to act respectfully and restoratively in all communications thus ensuring fair and justprocesses and outcomes that are more likely to encourage compliance and pro-social behaviour,within
and outside of the prison environment. These holistic processes would include facilitated encounters
between victims and their supportive others, prisoners and their family and/or peers and members ofcommunities of interest. Encounters such as these are an effective way to encourage victim empathy
and improve self-image.M aking an apology to family and friends is often the first step towards taking
complete responsibility for our actions, and the beginning of the journey towards the encounter withthe person most harmed and victimized.A restorative justice prison is one that is able to successfully
engage in restorative practices with the accompanying underpinning philosophy of harm reduction,
reparation and restitution.Manyofthe prisonʼs activities would involve victims,communityreparation
projects and skill-development activities that are pro-social and civic minded.The activities ought tobe designed to encourage respect for others and increase a desire to take on board responsible
citizenship.
All prisons should be instilled with the desire to be experienced as a restorative justice prison thatis seriously looking to provide a wholly restorative environment with fair and just processes andpositive outcomes. These processes and outcomes can be measured through the personal experiencesof residents in custody, victims of crime and prison management teams. Through restorative andtransformative environments, these prisons could reduce further victimization whilst generating agreater interest in family connections, social responsibility and civic pride. In terms of prisoner
experiences,a holistic restorative prison environment could provide an example of being treated fairly
and justly with respect and understanding.This can in turn present opportunities to look at the self as
74 Goulding, Hall & Steels 2008.
75 Coyle 2001.
76 Newell 2001.

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a respected social being with responsibility who can reflect on the harm that has been caused to others―victims and their own family and relatives.Restorative practices usually encourage personal growth,maturity and integrity on the journey to a better understanding of how we respond to ourselves andothers,especially in times of crisis and conflict.These are critical life skills that can assist those who
reside in custody to make amends,put their lives in order,understand others and look at being valued
by others.
In terms of prison management, restorative practices offer prison staff the opportunity to be
pro-active in encouraging responsible living in harmony with others.We seldom hear of peacemaking
and responsibility taking within penal institutions but that is what is called for from the prisonʼsleadership as prison staff move among residents who may not have experienced being treated with
dignity and respect.As a management tool restorative philosophy and practices can initiate potential
for growth and transformation of key workers,senior staff,prison officers and people held in custody.
In turn this can lead all participants towards positive relationships and lifestyles. Restorative justiceprisons can provide more than just a glimmer of hope―they offer a journey of transformation. As
previously mentioned, the authors recently visited Tihar Prison in Delhi in order to see first-hand theprison as a place of environmental sustainability. This visit runs parallel to the research being
undertaken in Western Australia. Already Tihar management have noted a marked change in the
behaviour of residents working within their sustainable projects.Residents are able to focus on the finebalance of climate, human activity and food security, ensuring that the jail is not a burden or is notproducing further harm to the planet.
Although these are small examples they serve to highlight the link with harm to self and victim,
harm to family and community with harm to the future of life on earth.In typical Asian style it shows
the interconnectivity and inter-dependency of species and clearly demonstrates that harming anotherhuman being brings harm to many others.The focus on these others does in turn assist the prisoner tolearn more about life than crime.

X. CONCLUSION:RJ;SUSTAINABLE PRISONS;THERAPEUTIC AND
PROBLEM SOLVING COURTS
With the Asian region taking account for the worldʼ
s most populated land masses,diverse languages
and well defined national identities, there is always going to be major functional differences withinjurisdictions,especially around restorative solutions to crime and compliance to law.This is underpinned by a variety of philosophies and religions,Indigenous,colonised and mixed populations and legal
support or restrictions placed on human rights and democratic processes. Most importantly forordinary people wishing to own their crime, for those who want to make things rights and for thosewanting to share their stories of their fear and harm, many regional governments and services are
beginning to listen. The future does hold hope for restorative encounters and free-flowing conversations facilitated between harm doers and those most harmed in a willingness to ensure that harmony
prevails.The how,where and when we can all see restorative justice providing the regionʼs people witha safer way to live without fear of crime,is with us now.We need to seize the opportunity.We are all
empowered to take control of crime,work towards healing its impact and restoring good relationships.
This paper is just the first of many steps to take in personal,national and international transformation.
It should lead us all to a greater understanding,compassion and fairness among families and communities.Restorative justice can come into its own once empowered by the all-encompassing bureaucratic
criminal justice systems and treated as a mainstream,genuine response to healing crime.Its ability tohave people move towards future compliance and to experience their governmentʼ
s processes as fair
will in future bring local and national rewards of safer and peaceful communities. However, none ofthis occurs overnight. Crime still occurs, wars continue and justice remains lost to many and yet it is
the most crucial relationships between the victim of crime and the harm-doers that we have to focus
on today. These restorative solutions present not only a way out of crime for those participants
entering an encounter but it offers whole communities and governments a more effective and less costly
way of healing the harm.
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156TH INTERNATIONAL SENIOR SEM INAR
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Beven,J.,Hall,G.,Froyland,I.,Steels,B.,& Goulding,D.,(2005)Restoration or Renovation? Evaluating
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Braithwaite, J., (2002b). Setting standards for restorative justice. British Journal of Criminology 42,
563-77.
Burnside.J.,and Baker.N.,(1994)Relational Justice:Repairing the Breach.Waterside Press.Winchester.
Casey, D., (2007)Report on the Review of the Department of Indigenous Affairs (2007)12.
Department of Corrective Services, WA Monthly Graphical Report: March (2009), available at
http://www.correctiveservices.wa.gov.au/ files/AG Report 0903.pdf>.
Cormier, R., (2002) HEUNI Papers, United Nations Programme Network Institutes Technical Assistance Workshop, Rapporteurʼs Report. No 17, April 17th 2002, Vienna.
Coyle, A. (2001)Restorative Justice in the Prison Setting. Conference Paper. Driebergen, The Netherlands:International prison Chaplains Association Conference.
Christie, N., (1977)British Journal of Criminology Vol 17 (1):1-15.
Cunneen,C.,(1999),ʻ
Genocide,reparations and restorative justice:Responding to the stolen generationʼ
,paper presented to the Restorative Justice and Civil Society Conference, ANU, Canberra, Feb
1999.
Farrall, S. (1995) Why do people stop offending Scottish Journal of Criminal Justice Studies, 1:51-9.
Freiberg, A 2001, ʻ
Problem solving courtsʼ
, Journal of Judicial Administration, 2001, pp. 8-12.
Goulding, D., & Steels, B. (2006)Developing, Implementing and Researching a Communitarian Modelof Restorative and Transformative Justice for Adult Offenders in M agistratesʼCourts, in (Eds)
King, M . and Auty, K., The Therapeutic Role of MagistratesʼCourts, M urdoch eLaw Journal
Special Series, Vol 1, 2006 pp27-50. http://elaw.murdoch.edu.au>.
Goulding, D., Hall, G., & Steels, B., (2008) ʻ
Restorative Prisons:Towards Radical Prison Reformʼ
, inCurrent Issues in Criminal Justice, Vol 20, No 2, November 2008.
Goulding, D., & Steels, B., (2013)Ten Years On, the ʻThree Circleʼmodel of Restorative & Transformative Justice:a tool to combat victimization and recidivism,in Asian Journal of Criminology,
Special Issue Restorative Justice In Asia, December 2013.
Himona. R., (2001)The First Maori Website 1995 http://maaori.com>retrieved Jan 14, 2013.
Liu, J., and Palermo, G.B., (2009) ʻ
Restorative Justice and Chinese Traditional Legal Culture in the49

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Context of Contemporary Chinese Criminal Justice Reformʼ
,in Asia Pacific Journal of Police &Criminal Justice, Vol. 7, No. 1, 2009.
M aruna, S. and Immarigeon, R. (2004)After Crime and Punishment:Pathways to Offender Reintegration. Willan. Devon UK.
Nazemi.S.,(2009)The Nine Principles of Peelian Policing.Los Angeles CommunityPolicing.Retrieved
Sept 30 2012 http://www.lacp.org/2009-Articles-Main/062609-Peels9Principals-SandyNazemi.
htm>.
Newell,T.,(2001a)Responding to the Crisis:Belgium establishes restorative prisons.Conference Paper.
London.
Pelikan, C. 2000, Victim-Offender-Mediation In Domestic Violence Cases ― A Research Report, United
Nations Crime Congress Ancillary Meeting,Vienna,Austria.Available online at: http://www.
restorativejustice.org/rj3/UNBasic Principles/AncillaryM eetings/Papers/RJ UN CPelikan.
htm>.
Pranis,K.,(2007)ʻ
Restorative Valuesʼ
,in Handbook of Restorative Justice, (eds)G Johnstone and D Van
Ness. London:Willan Publishing.
Quah (2013:31)Curbing Corruption and Enhancing Trust in Government:Some Lessons from Singaporeand Hong Kong, in Jianhong, L., Heberton, W., and Susyan, J., (2013)(Eds)Handbook of Asian
Criminology, Springer. New York.
Steels,B.,(2008)Imprisonment of the many:Capacity building or community demolition?In Ngoonjook:a Journal of Australian Indigenous Issues, no. 32, 2008
Steels,B.,and Goulding,D.,(2013)Restorative Justice in the Asia Pacific Region:Acting Fairly,Being
Just.in Jianhong,L.,Heberton,W.,and Susyan,J.,(2013)(Eds)Handbook of Asian Criminology,
Springer. New YorkSteels,B.,and Goulding,D.,(2009)When itʼs a Question of Social Health and Well-Being,The Answer
is Not Prison”, IndigLawB 21;(2009)7(12)Indigenous Law Bulletin 15.
Sykes, G., and M atza, D., (1957) ʻTechniques of neutralisation: A theory of delinquencyʼ
, American
Sociological Review, 22, 664-670.
Thilagaraj,R.,and Latha,S.,(2013:201)Human Trafficking in Asia,in Jianhong,L.,Heberton,W.,and
Susyan, J., (2013)(Eds)Handbook of Asian Criminology, Springer. New YorkTyler, T., (1990:172) Why People Obey the Law, Yale University Press. New Haven.
Tyler,T.,(2006)Restorative Justice and Procedural Justice:Dealing with Rule Breakingʼ,in Journal ofSocial Issues, vol 62, no 2, pp 307-326.
Weatherburn D, Fitzgerald J & Hua J (2003). Reducing Aboriginal over-representation in prison.
Australian Journal of Public Administration 62(3):65-73
Winick. B., (2003) A Therapeutic Jurisprudence Model for Civil Commitment in K Diesfeld and I
Freckelton (eds),Involuntary Detention and Therapeutic Jurisprudence p 26.Ashgate Publishing.

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CREATING RESTORATIVE AND SUSTAINABLE ENVIRONMENTS
WITHIN A CUSTODIAL SETTING:ESTABLISHING A TEM PLATE
FOR THE FUTURE
Dr. Brian Steels

I. INTRODUCTION
This research remains in its embryonic stage as it attempts to produce a universal template fordesigning and implementing a wholly restorative justice and environmentally sustainable prison
regime, shaped by restorative values and sustainable practices. The project will raise awarenessthrough sustainable educational and transformational programmes, transforming the culture amongresidents,workers and visitors throughout the penal estate. These interconnected and interdependent
values and practices remain mostlyunexplored,suggesting a need for an increase in scientific literatureacross disciplines, communities and borders. Expected outcomes include a greater understanding of
responsibility taking,procedural fairness and harm reduction within a sustainable prison ― restoring
prisoners, their environment and communities.
Human activity has brought harm to other human beings, different species as well as the planet.
The project engages participants at the forefront of restoration of all harm done to people, place
and planet.1
There are many articles that examine restorative processes in prisons,restorative justice used forenvironmental crimes and environmental issues being explored in a prison setting. There are low
security work camps and prison farms that practice sustainability and there is a very good example ofsustainability within Tihar Jail,New Delhi,India,where food security and healthy living are practiced
in terms of ecological sustainability. However there are no papers,seminars or books that explore thedevelopment of a fully environmentally sustainable secure prison that combines harm reduction withrestorative justice practice and philosophy. The authors believe that these go hand in hand as
sustaining harmony and peaceful community living helps to reduce crime and fractured relationships.
Further,reducing the carbon footprint can be viewed as taking responsibilityfor the environment,oneʼsfamily and the community and enhancing awareness and concern for others, in this way leading toreflections on the self and the selfʼs impact on others.
This project has begun to examine the current structure and the capacity of Acacia Prison andWandoo Reintegration Unit in Western Australia to respond to criminal activity and environmental
sustainability through diverse needs with unique responses, including sustainable programs and environment. The project is situated within Curtin University, with support from Curtin University
Sustainability Policy Institute(CUSP)the Australian Sustainable Development Institute and the Officeof Research and Development. It is coordinated across schools so as to initiate related projects throughassociated networks and partnerships. The project relies upon a multi-disciplinary and culturally
aware team to record the processes of organizational change necessary to adapt a punitive prison
regime into a therapeutic and environmentallysustainable estate,built upon the foundations and valuesof restorative justice and sustainability.
The projectʼs uniqueness will inform and design the Universal Template2 that will assist otherjurisdictions to replicate these practices within their own estates, cognizant of their difference andcultural diversity. As such the project will aim for the positive transformation of offenders,reparation
Paper co-authored between Dr. Brian Steels and Dr. Dot Goulding, Senior Research Fellows, Curtin University andDirectors of the Asia Pacific Forum for Restorative Justice (Patron. Prof. John Braithwaite).
1Steels. B., Presentation, Asian Criminological Society, M umbai 2013.

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RESOURCE MATERIAL SERIES No. 93
to people and communities harmed by crime and environmentally sustainable practices that reduce theimpact of the prison in terms of its carbon footprint and impact upon its local environment. The
template will be informed by evidence gathered through action-based and participatory research andshould be useful as a tool to answer questions relating to design, implementation, process and outcomes. An interdisciplinary team as well as the voices of those held in custody and the people
responsible for their safety and security will inform the template. It will record progress withsustainable, rehabilitative and restorative practices, seeking data from people harmed by crime;
families of offenders and victims of crime. The template will therefore be informed by measuring
restorative and environmentally sustainable practices and the levels desired and expected by management, residents and community.

II. RESTORATIVE JUSTICE
Underpinning the projectʼs restorative values will be Braithwaiteʼs standards that assist withevaluating degrees of restorativeness. Restorative Justice is defined by Cormier3 as:
An approach to justice that focuses on repairing the harm caused by crime while holding theoffender responsible for his or her actions, by providing an opportunity for the parties directly
affected by a crime ― victim［s］,offender and community― to identify and address their needsin the aftermath of a crime,and seek a resolution that affords healing,reparation and reintegration, and prevents future harm.
The conceptual framework for the wholly restorative justice sector of the project cites practitioners
and academics4 all of whom have provided insights into the work done by prison authorities tointroduce limited restorative practices into several prisons in England,Wales and Scotland. However,restorative practices within prisons are a relatively recent phenomenon and since 2000 the entire
Belgian prison system has undergone substantial cultural change to a system based on restorative
principles.5 Restorative justice counsellors were employed in all thirty Belgian prisons in order tooversee the establishment of restorative practices to all aspects of the prison regime.6 However,according to Aertsen,7 specialist restorative justice trainers and practitioners have been absorbed into
senior management positions leaving a doubt as to the sustainability of the Belgian restorative
practices. The values and practices underpinning the research project will counter regimes thatmaintain a continuum of punitive policies. However, sustainability is key if the programs are to beeffective within the ever-changing prisoner and staff populations and their dynamic human relationships flowing through the prisonʼs environment. In addition to the restorative prison projects,therapeutic communities have been established in several prisons in England and Wales. HMP Grendon,
housing around 200 high security prisoners, is undoubtedly the best known of these. Liebmann8 notesthat within HMP Grendon:“The programme is based on therapeutic community principles, where a
dedicated multidisciplinary team of staff works together with prisoners, in an atmosphere whereattitudes and expressions that would not normally be tolerated in prison are accepted and used to give
feedback to prisoners.”
The innovative restorative regimes will be based on the concept of re-integrative rather thanstigmatic shaming, essentially shaming the act rather than the actor whilst providing a values andskill-set to enhance day to day relationships with others as well as the personal and shared environment. Thus,sustainable restorative justice could be said to be a process that involves active participation of all people;those harmed by crime;those who can learn to take responsibility for the harm they
2This Universal Template is expected to become part of international guidelines and standards for developing andmaintaining restorative and environmentally sustainable practices within prisons. It may have usefulness for otherinstitutions, organisations and small communities as they attempt to build harmonious relationships between diverse
people, places and the natural environment.
3Cormier 2002.
4Newell 2001;Stern 2005;Coyle 2001 and Liebmann 2007.
5Aertsen, Daems & Roberts:2006.
6Newell 2001.
7Discussions with Aertsen held at Katholieke Universitiet Leuven in 2012.
8Liebmann 2007:247.

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have caused;and those who can provide support. This enables direct and indirect reparation andrestitution to both primary and secondary victims and a real commitment to personal reflection andtransformation. In an innovative move, all residents and workers in the custodial settings will learn
about and practice restorative justice and will be in part responsible to assist with facilitating
encounters and teaching theoretical constructs. In this way participants will learn about restorative
processes and outcomes,be encouraged to teach others and provide a set of skills to others,both insideand outside of prison. Residents will be encouraged to apply for paid positions within the prison as
assistants, consultants and practitioners and be an integral part of the research team. This fits with
Curtin Universityʼs mission9 “to change minds,lives and the world through leadership,innovation and
excellence in teaching and research”.
Research10 suggests that prisons do not reduce criminal activity but, conversely, are themselves
criminogenic in nature. Australia-wide, recidivism rates remain consistently high and rehabilitation
programs, where they exist, have limited success rates and are frequently unsustained by economic
policies. Currently,the few restorative justice programs that do occur in Australian prisons are ad hoc
and dependent on the passion of individual managers and staff, as well as their community based
voluntary organisations and hence they become unsustainable. The restorative prison setting,according to Coyle11 would “present prisoners with a series of duties,challenges and learning opportunities”.
A key factor in a restorative prison is an environment of safety and positive values for prisoners andprison staff. There is no doubt that manyobstacles have to be overcome in the cultural change towards
restorative practices. Newell12 contends that the tension between restorative processes and traditional
prison modes are still troublesome,maintaining that “restorative justice requires respect,the assumingof responsibility and the freedom to solve problems by those involved in the conflict”. The challenge
goes to the Curtin team to create fair, just and sustainable processes with positive and sustainablevalues. To date,environmental sustainability plans and activities remain unrewarded by risk adverse
governance. Monitors fail to ensure the sustainability of quality rehabilitative programs,as noted byWestern Australiaʼ
s PrisonersʼRelease Board13,“A further area of concern is the limited provision ofrehabilitation and training programmes for prisoners and parolees”. This limited provision requires
further investigation as it hampers participants throughout the estate as well as victims and community
members;thus placing safety and rehabilitation in isolation to security needs. This study will engage
all aspects of rehabilitation as the residentʼ
s progress from convict to citizen.
Restorative encounters held with offenders to discuss their release and rehabilitation plans are
ideally held among friends and family. Using Sykes and M atzaʼ
s14 neutralization theory during theseencounters,facilitators are able to challenge a denial ofresponsibility,denial ofinjury,denial ofvictim,
condemnation of the condemners and note an appeal to higher loyalties. If not exposed,these notions
will continue to deflect blame onto others rather than allow a space for offenders to take responsibility
for their actions. This is crucial to the project for as the Youth Justice Board15 has identified,young
offenders with strong family ties are six times less likely to re-offend. Furthermore, research16
indicates that family support helps offenders to reintegrate into communities and avoid criminal
behaviour. This research will explore family encounters17 that include the notion of re-integrative
shaming.18 These encounters enable the focal person to reflect on their relationship with their family
and the harm brought to the family by harming other people. This study will explore if a genuine
concern for others can be enhanced through engagement and concern for a positive, sustainable
environment;one that leads to positive community engagement.

9 M ission;Strategic Plan 20132017.
10 Carlen 1994, 2002;Pratt 1997;Steels 2006;Stern 1998:11;Goulding 2007:4.
11 Coyle 2001.
12 Newell 2001.
13 Prisoners Review Board Annual Report 2012:6.

http://www.prisonersreviewboard.wa.gov.au/ files/PRB Annual Report 2012.pdf>.
14 Sykes and Matzaʼs (1957:664-670).
15 Youth Justice Board, UK 2003:07.
16 Stockdale 2008;Renshaw 2007.
17 Steels and Goulding call these encounters ʻ
the first circleʼ
.
18 Braithwaite 1999.

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III. ENVIRONMENTAL SUSTAINABILITY
It is becoming increasingly clear that community engagement and support is crucial to gaining
environmental outcomes. The active engagement of the communityʼ
s energy, knowledge, andintelligence is now a vital ingredient in the success of many different types of sustainability
programs. (NSW heritage and Environment 2013)19
When associated with aspects of a sustainable environment the restorative actions outlined above
are able to place awareness of self and others, by residents and staff at an unexpected level ofknowledge and empathy. This study places the Curtin research at the leading edge of effective
restorative and environmentally sustainable prisons and associated projects. It will shed light on theinterconnectivity and build into the universal template not only the aims to be achieved,but also how
to make the journey effective and efficient. Prisons currently offer little that is positive to society interms of reducing criminal activity, reducing further victimisation and making communities safe. In
addition, their economic and social costs are high. To date their impact on the environment has held
little interest in criminology or by environmentalists,or indeed government departments. Sustainable
penal estates have waited too long to be explored and this project will inform other jurisdictions
through the development of the universal template action-based research and experimental projects,
journal articles, papers, presentations and seminars.
A unique network of Curtin scientists and practitioners has begun to build up the projectʼs sustainability credentials with a collective responsibility to reduce the combined estatesʼcarbon footprint.
The vision is also to enhance the opportunity of residents to actively participate in constructive roles
as research assistants,facilitators and practitioners within the custodial environment and within theircommunities upon release. It is a combination of sustainable skills acquisition, competency training
and empowerment for all participants including staff. The study has already started to encourage
further examination of food production,security and transport;investigate the use ofclean,sustainable
and efficient energy production;research innovative storage,use and reuse of water;and seek alternative and innovative energy efficient practices. It will also seek to examine the estateʼ
s ability tocontribute to other environmentally sustainable practices including species protection of flora andfauna; including breeding and re-stocking national parks and wildlife sanctuaries; growing andnurturing plants for prison and commercial use;supplying produce for zoological and farming enterprises (aquaculture, agriculture and horticulture)and supporting local environmental interest groups.
These credentials will provide the platform for further awareness training and education amongresidents, who will be well placed as skilled citizens. Together these values place the emphasis on
responsibility for self, others and living environments.
Prisons are workplaces as well as places for secure custody. They also provide an ever-growing
population of workers. A sustainable workplace is defined by Sustainability at Work20 as bringing
about the following benefits to the organisationʼ
s workplace; environmental, human resources andemployee engagement, financial and brand and reputation. In terms of this research project all
aspects will be thoroughly explored, evaluated and documented. Sustainable Prison Projects (SPP)
exist for small groups of prisoners in very few jurisdictions. Among the more well-known is a work
camp at Cedar Creek21, where nearly 60 inmates live and work in the low security forest work camp.
They hold a variety of jobs on the sustainability project; composting material, looking after bees,
collecting rainwater and they run a scientific research project on endangered species. The stateʼs
Deputy Director of Prisons, Dan Pacholke22 says that any prison system will tell you that idleness isa bad thing,“if we donʼt have stuff for them to do,then weʼ
re just going to hire more security staff.
Itʼs environmental economics, weʼ
re expensive places to operate. I could sell the［project］on cost
containment alone:solid waste, energy, food costs”.
India too has an excellent environmental awareness and sustainability section at Tihar Jail,Delhi.
19

http://www.environment.nsw.gov.au/community/index.htm>.
http://www.sustainabilityatwork.com.au/public/images/benefit.jpg>retrieved Thursday July 11, 2013.
21 Cedar Creek, Washington State Department of Corrections and The Evergreen State College facility joint project.
22 http://blogs.evergreen.edu/sustainableprisons/files/2013/01/SPP-EssentialComponents-1-10-13.pdf>.
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Tihar houses more than 14,000 prisoners (almost half of Australiaʼ
s entire prison population). Over the
past two years,the Prison Director has introduced a greening and environmentally sustainable prison
regime. The prison grounds cover over 200 hectares in the middle of New Delhi and yet inside theprison boasts an environmentally positive ambience with trees, shrubs and herb, fruit and vegetablegardens. The authorities have introduced several animal and bird species including cows,pigeons andgeese,although the food served in the prison is entirely vegetarian. The Director explains that caring
for the animals has had a calming effect on the prisoners and staff and that, overall, there have only
been positive outcomes.

IV. CULTURAL SUSTAINABILITY AND AWARENESSFor Aboriginal and Torres Strait Islander residents and staff as well as students and staff acrossCurtin the research project will bring about significant sharing of ideas and a greater depth ofunderstanding of the spiritual and cultural significance and interconnectedness of people, place,country and environment. Cultural significance and sustainability will be studied throughout the
project as a central part of the overall concern for the 40 per cent of the resident population that
identify themselves as Aboriginal or Torres Strait Islander people. This group of residents will informthe templateʼs cultural sensitivity and sustainability notes as well as provide input into regenerationand sustainable production of local food, seeds, species and plants.
Aboriginal residents and support staff will ensure cultural awareness is presented and respectedacross the template design and along with selected non-Aboriginal residents assist with as much as they
are able to with the project and research team. This is a crucial aspect of the project. The study willat all times engage and empower residents within a learning environment as well as helping them toincrease their knowledge of restorative practices and environmental sustainability. This will entail
peer-to-peer and lateral training across roles as well as top to bottom and bottom-up training inconcepts,terminology and practice,fitting as it does with Braithwaiteʼs (2002)notion of transformationof the current justice system. For residents at each site,this study will involve them in researching andgaining knowledge of ideas suitable for their current circumstance as well as for their own family andcommunity upon release.

V. SIGNIFICANCE AND INNOVATION IN CREATING AND COMBININGRESTORATIVE AND SUSTAINABLE PRACTICESThis piece of research is highly significant as it presents the opportunity for a paradigmatic shift
in the way that the total prison environment is viewed and managed. This,in turn impacts upon otherhuman service institutions such as hospitals and nursing homes as well as smaller rural and remotecommunities where relationships with others and the environment are crucial in terms of sustainability
and capacity building. Indeed, the research proper aims to address several important issues foundwithin prisons across jurisdictions;the high re-victimisation and recidivism rates, the awareness ofharm done to others and the interconnection between prison, community and their impact on theenvironment. The above could have a direct impact on small communities and rural towns that could
benefit from the return of ex-prisoners who are fully skilled in both restorative justice and environmental sustainability. This directly links the penal estateʼ
s creative and innovative activities to community
needs and local benefits. It enhances the opportunity for ex-prisoners to make the journeyfrom convict
to citizen,an area of special interest throughout the research. Furthermore,the research calls upon all
residents and workers within the penal estate to work towards common goals and shared ambitions
with regard to lowering conflict and crime, reducing victimisation and harm to the environment. It
links up notions of food insecurity, safer communities and ecologically sound management of bothprison and community space.
The current partnership with Serco developed through the Curtin University researchersʼinvolvement with them over the past eight years. M anagement is innovative and want to use restorative
justice processes within a wholly sustainable environment throughout their combined estates,includingtransport and court services, placing the vision and practices within their organisational goals.
Custodial settings that run on restorative and sustainable practices have the potential to;55

RESOURCE MATERIAL SERIES No. 93
Be innovative by promoting an awareness of the impact of criminal activity on victims and allothers harmed,including family and associates,through direct encounters between victims andoffenders, including notions of responsibility taking, apology and reparation
Promote environmental sustainability as a learning tool,skilling all participants and creating
greater awareness of the interconnectedness of harm to self, others and the planet
Establish meaningful and sustainable workplace activities for prisoners where a proportion of
their time is spent working for the benefit of others, particularly victims
Incorporate restorative principles into all dispute, grievance and disciplinary procedures
throughout the prison and Sercoʼ
s other sites
Initiate good relationships with local communities to illustrate the need for prisoners to bereconciled with society and environment
It is anticipated that this study will advance the criminological and sustainable environmental
knowledge base at Curtin. The authors view this as a win-win situation for Curtin researchers andcampus,Serco,prisoners,victims and the environment. In taking this research out into other jurisdictions, the idea of the international template becomes a major focus, a point of connection between
Curtin Universityʼ
s researchers and other interested parties worldwide.

VI. SIGNIFICANCE AND INNOVATION FOR CURTIN
AND OTHER UNIVERSITIES IN THE REGION
This research allows for the expansion of innovative and creative research within two major fields
that intersect through the new penal estate and created for future living. It also addresses CurtinʼsStrategic Plan23 “where Leadership matters”. It will focus on people and culture across the campus asit brings together research teams, graduates, teachers and students across a broad spectrum of interests. The project will develop into an inspiring and innovative collective of energetic Curtin people.
Indeed, under the heading of research this ticks all of the boxes. It already has iconic names with
Aertsen (KUL Leuven)Belgium;Braithwaite (ANU);Shapland (Sheffield)UK;Lalli and Subramarian(India)Wong and Chang (CityU)Hong Kong as well as Newman and team at CUSP. Within Aboriginal
and Torres Strait Islander interests it has strong credentials across Australian campuses as well as
leadership within Curtin. The research is a life-changer for individuals,families and communities herein Western Australia, across the nation and internationally. It is high impact applied research anddevelopment across disciplines.
The teaching and learning credentials of the project will lead to an expanded source of students andgraduates as residents within the custodial estates along with their counterparts on campus engage inthe various projects on a demanding learning curve. As for “engagement and impact”this project isbest described as a dynamic organism for the region. It will bring challenges to many assumptions
about crime, living environments, sustainability and Indigenous interests whilst meeting the needs ofdiverse communities across country and borders. It has already gained interest through SteelsʼandGouldingʼ
s work as Directors of the Asia Pacific Forum for Restorative Justice and partnerships built
up over several years. This collaboration of international networks already links Curtin with manyother academic sites across the Asia Pacific as well as Europe. It gives Curtin and its partners aleading edge in two fields as criminology and sustainability meet to reduce harm to people across theworld. This project is about researching socially just and sustainable living that embraces positivechange, and meets Curtinʼs mission and that of our neighbours in many ways. For Curtin, Serco andother partners,this research project will identify and examine each aspect of sustainability. Crucially
it will include sustainable prison programs as well as harmony building and relationships central torestorative practices. These will build up part of the “
template”and will include noting the engagement with community groups, how assistance is given to primary and secondary victims and how
innovation and cultural challenges could be understood and transferred through the template,to other
23 Curtinʼs Strategic Plan 2013-2017.

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prisons,locally and internationally. It will also inform the future design ofsustainable and harmonious
communities.

VII. COUNTERING GROWTH IN THE PENAL ESTATE
It remains a major concern that there is continuous growth in prison populations. On average prison
populations in Australia have grown by 5 per cent each year over the past two decades.24 Such growth
in prison populations and costs are unsustainable and unjustifiable as imprisonment remains an
ineffective tool for reducing crime. However, crime rates have fluctuated over this period, showing
both increases and declines. Garland25 contends that,“
todayʼ
s world of crime control and criminal
justice was not brought into being by rising crime rates
It was created instead by a series ofadaptive responses to the cultural and criminological conditions of late modernity”. Thus, theeffectiveness of imprisonment is questionable as prisons are often the embodiment of secrecy,invisibility, exclusion and lack of accountability:
These factors encourage, rather than discourage, coercion brutality and violence amongst
prisoners and prison staff. One of the consequences of this is that imprisonment
does notprepare inmates for productive and pro-social living in the wider community26
The argument here is that imprisoning more people for longer periods of time does not makecommunities safer or victims at less risk of further victimisation. Furthermore, the economic andsocial costs of imprisonment are unsustainable27 as is the impact on the environment. Ever-increasing
imprisonment rates result in escalating economic and social costs but present few real benefits tocommunities. Austin et al28 highlight these facts:
This high rate of recidivism is,in part,a result of a range of policies that increase surveillanceover people released from prison, impose obstacles to their re-entry into society, and eliminate
support systems that ease their transition from prison to the streets. Prison policyhas exacerbated the festering national problem of social and racial inequality.
Austin et al29 call for reform in rehabilitation and especially the focus on the other that causes
non-Caucasians to be arrested and jailed at higher rates than their Caucasian peers, a factor that isreflected throughout Australian and similar jurisdictions. Johnstone and Van Ness30 have argued that“
prisons are authoritarian and hierarchical, controlling virtually all aspects of the lives of prisoners, making it difficult for them to exercise responsibility. Yet, responsibility is a key value of
restorative justice”. However to date little attention is given to the sustainability of programs,where
due process of engaging with a pre-release program is often delayed. Any interconnectivity between
harm of self,harm to others and harm to place and planet remains unnoticed and disconnected within
the criminal justice system. This research begins to join the dots together.
Lessons learned from Belgiumʼs Restorative Prison experiment and research include the importanceof sustaining programs and practices throughout an ever changing group ofresidents and high turnoverof staff. This study will help to identify ways in which prisons can maintain restorative,fair and justpractices over time whilst creating inbuilt sustainability across the various social roles and actors(prisoners/residents;staff/management;visitors;service providers). Sustaining corporate knowledge
will present a challenge where the cost of maintaining the total penal estate frequently fails to
acknowledge the environmental and social costs against a broad spectrum of performance indicators.
The authors therefore argue that the above should inform policies and practices as well as presenting
a viable, positive alternative in terms of reduced social and economic costs to governments and theircommunities. Curtin and its partners across the region have a vision for restorative processes
24 Australian Institute of Criminology 2007.
25 Garland 2001:193.
26 Goulding, Hall and Steels 2008:232.
27 Austin et al.:2007:1.
28 Ibid.
29 Ibid.
30 Johnstone and Van Ness 2007.

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becoming fundamental to all communications and activities within all residential units along with aunique interest in cultural and environmental sustainability. Serco has keen residents, staff andmanagement who are engaged with Curtin in developing restorative and sustainable practices wherever possible. The custodial and transport facilities are at the forefront of reducing carbon footprints
within the industry. In order to develop the universal template,this Curtin-based research has begun
with an expansive platform that examines restorative, therapeutic and sustainable processes andoutcomes including the:Degree of awareness of and reparation to victims and communities through work activities
that assist individual victims or communities harmed by crime
Journey from convict to citizen;what helps and what hinders
Impact of encouraging prisoners to apologize in recognition of the harm caused to victims andfamilies, their own families and local communities
Restructuring of all grievance procedures to include alternative dispute resolution processes,
family and community encounters,prisoner-to-prisoner disputes,prisoner to staff disputes andall prison staff grievances
Encouragement given to prisoners to engage in therapeutic programs in the prison withsupport networks of family or peers
Degree of participation of residents and workers learning about and actively participating in
restorative justice and environmental sustainability practices
Identifying and lowering Carbon footprint levels over research period
Percentages of food use to production on site, as well as energy usage, production andreduction
Level of stress and sick leave among staff, residents over term of research project
The project will also lead Curtin research teams in an exploration of:
Health and well-being, including mental health and stress of all residents and staff
Quality and safe work practices relating to total living and working environments
Sustaining quality water supplies (renewable and reusable― fresh/grey, tanks, ponds)
Energy production and storage,including new research for painted roof technologies,thermal
and passive energy design and implementation
Prison Industries;low and renewable energy use,and to provide evidence of effective practices
for the broader community
Food production and wastage:cottage-industry style production (bee keeping,jam and pickle
making, preserves), on small and commercial scales
M aintaining cultural and traditional language and activities, including sustainable use ofcountry
M edia/arts studies linked to restorative and environmentally sustainable practices
Rehabilitative activities including RJ, Restore, STP and others including family support

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156TH INTERNATIONAL SENIOR SEM INAR
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M eaningful support to Victims of crime and their various groups,and offers of participating
in any aspect of the research and projects
Designing sustainable prisons through collectives of science and technology
Quality social practices throughout the estate that are restorative and that aim to build aculture of support within and outside of the prison
Innovation and creativity across roles within penal estates
Low carbon footprint surveillance technologies and systems
The above will be taken into account for their ability to encourage and support positive lifestyles
cognizant of reducing harm across penal and community environments. Research shows that restorative justice processes can assist in reducing crime by up to 30 per cent when used in conjunction withtherapeutic interventions.31 Currently there is a lack of evidence to link restorative justice, harmreducing programmes and environmental sustainability with an ability to reduce re-victimisation.
However, this unique and innovative project positions Curtin and its partners to enquire of thepathways chosen by Indigenous and non-Indigenous people leaving the penal estate. It has the ability
to highlight outcomes to all communities,but especially rural and remote locations where a disproportionate number of Indigenous people are arrested, imprisoned and released without gaining positive
skills for their future. This applies to similar marginalised groups of people throughout the Asian
region.

VIII. DATA COLLECTION
Data will be continually collected through an analysis of current procedures and practices across all
sectors of the prison estate. Measurements will be taken of all aspects32 of the project and will form
the baseline to identify organizational change, as well as sustainable activities and outcomes.
Discussions and continual feedback will involve senior management, staff, visitors, focus groups andprisoners together with scientists, researchers and evaluators. This data will inform a benchmark ofinternational standards within the universal template. Importantly, residents will participate andinform all parts of the research from its inception through to practice and where possible they will be
employed by the prison to participate in sessions with the research teams on site and on the Curtin
campus via Skype. Once international partnerships are formed these too will connect with prisons andother campuses.

IX. DISSEMINATION OF SIGNIFICANT
AND INNOVATIVE RESEARCH OUTCOMES
Prison residents will present findings at local and international seminars using interactive technology, teleconferencing, and pre-recorded presentations. Our international networks suggest that thefrequent dissemination of information through journal articles and presentations will attract further
national and global interest. Journal papers have already been called for from China, India, Hong
Kong,UK,Belgium and Japan. Team members have begun to brief the legal,criminal justice,victims
of crime and environmental and sustainability sectors of government through regular seminars andproject newsletters. Serco management,staff and official visitors will continue to highlight the workthrough their world-wide magazines, and other partnerships including Perth Zoo, M en of Trees,
Department of Agriculture, and Corrective Services. Residents and staff will be encouraged andsupported by researchers to disseminate information and research outcomes through local radio,
international prisoner magazines and articles in Penal Reform International and the International
Centre for Prison Studies,London. The World Congress of Victims of Crime will be invited to explore
31 Bonta, Jesseman, Rugge and Cormier 2006.
32 To date this includes water and power and waste management, renewable energy, measuring carbon footprint,

converting to electric equipment, recycling, introducing RJ in programs and grievance procedures, engagement with
community partners, inclusion of victims of crime, providing community equipment and further reparation practices.

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RESOURCE MATERIAL SERIES No. 93
the project prior to their conference in Fremantle 2015.

X. PARTNER ORGANISATIONS ― COMMITMENT AND COLLABORATION
Serco is committed to this research and will assist with the transformation of its existing penal
culture through the use of restorative and sustainable policies and practices. It is willing to assist withthe development of the template for cultural change, recognizing its value within its own and otherorganisations. Sercoʼ
s values are reflected in its Governing Principles that in turn fit within RJ andsustainability. It aims to foster an entrepreneurial culture by encouraging and generating new ideas
and embracing change. It aims to positively contribute to the communities that it works with including
victims of crime groups and individual beneficiaries, prisonersʼfamilies and networks and otherparticipatory communities of interest. Its environmental aims include assisting prisoners to transformtheir lives into capable,confident citizens who can make a constructive contribution to their familyand
community.
It is through these practices that Acacia and its parent companySerco Asia Pacific stronglysupport
this project. Curtin University and Serco Asia Pacific are in the process of completing a Memorandumof Understanding to ensure the sustainability of the project and beyond. City University of Hong Kongand the Institute of Correctional Administration (India)are encouraging further research and development of alliances. Serco is also seeking support from Curtin to enhance its work through further
research across its estate,raising conversations relating to its other work associated with hospitals anddetention centres.
Another major partner in this and future research is the Asia Pacific Forum for Restorative Justice(APFRJ). Its patron, Professor John Braithwaite, is the worldʼ
s foremost and acclaimed author of
Restorative Justice and his support for such a regional body has been exceptional. Its international
membership represents all regional nations and many academic institutions. The Directors of APFRJ
are able to place Curtin at the leading edge of regional activity. This project fits within its goals andaspirations for a positive and participatory cultural shift within the field of criminology and social
justice,including support for the integration of the regionʼ
s Indigenous prisoner populations (including
Australia, New Zealand, Taiwan, Afghanistan, China and India) to be active participants in the
research.

XI. APPROACH AND DESIGN
The project continues to use a multi-disciplinary approach to design, implement and evaluate thetemplate for a restorative and environmentally sustainable penal estate and its support networks oftransport and visitors services. The template will be flexible enough to be used across cultures andjurisdictions. In essence, the research is informed by the following concepts:theories of restorative
prisons;33 notion of re-integrative shaming;34 fair & just processes,35 and a theory of responsibilitytaking.36 The study also takes account of organizational cultural change37 in concert with industry
appropriate cultural change theory developed byAertsen38 specificallyfor the Belgian experience. The
critical economical analysis of imprisonment will refer to Austin et al.39 and the environmental
sustainability will refer to Australian Standard (AS)ISO 14064 series,and International Standard ISO
14040 series as well as other protocols and reporting guidelines as outlined by the team through thesupport of its partner CUSP.

33 Newell 2001;Aertsen 2006.
34 Braithwaite 1989.
35 Tyler 2006.
36 Sykes & Matza 1957.
37 Scott et al., 2003.
38 Aertsen 2006.
39 Austin et al., 2007.

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XII. 4 YEAR PROJECT DESIGN:TO DATE AND THROUGHOUT YEAR 1
Activity

Support & Collaboration

Notes

Developing partnership

APRRJ/Serco

RJ development (past 8 years)

Developing RJ teams

CAS, ORD & APFRJOver past 18 months

Developing International team

Aertsen, Wong, Lalli, ShaplandOver past 18 months

Initiating interest in RJ grant

CAS & Serco

ARC Linkage application ʻ
13

Initiating interest in RJ grant

CAS & Serco

Preparing ARC Discovery 2014
(RJ)

Interest in sustainable prison

CAS/Serco facilities

Over past 9 months

Developing teams

CAS, ORD, Serco, APFRJ

Ongoing

Linking with CUSPCAS & ORD

In progress

Visits to Serco facilities

CAS, CUSP, ORD

Over past 2 months

Symposium for RJ and a andSustainability

ORD, CAS, CUSP, Serco

Invites extended to
Researchers, academics,
NGOs, contractors and networks

Develop further ResearchTeams and opportunities
across disciplines.

Various faculties and schools,
As well as other international
collaborating

Initiate collaborative ARC andother Competitive grants, also
Lottery West and philanthropic
grants across health,social justice,
Aboriginal and environmental sustainability interests

Establish community
Consultation and research comm.

Community groups, NGOs
And teams

Consultation with various groups
And government sector, for members

Baseline Date collection

Across research teams

First stage of audit of penal estate

Ethics applications

Individual research teams

Timeline dependent on variables

Data collection

Teams

Audit of other Serco services

Begin RJ practice training

All residents and staff

Capture activity via multi media

Activity

Support & Collaboration

Notes

Develop, support andmonitor ongoing projects

Across all disciplines
ORD, CAS

Develop sustainable
leadership within teams

Develop and build
capacity for further research

Various faculties, schools andPartnerships. ORD

Retain Curtinʼs corporate knowledge of its footprints during thisproject

Publish and present

Asia Pacific, European and
US/Canadian networks

Aim to have at least 2 papers fromeach area pa ＋ 2 Books publications

Keynote presentations andRegional workshop

Environmental and SustainableInstitutions and communities

Produce academic book chapters,
and papers from at least two international conferences

Hold 2 conferences at Curtin
over three year period

APFRJ/WA Govt/SercoNGOs

One is already being considered
for end of 2014 (RJ and Sust.
Prisons)

Exchange HDR students
And academics

Overseas Universities andRegional partners

Engage in overseas collaboration

4 year project design: Years 2, 3

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RESOURCE MATERIAL SERIES No. 93
4 year project design: Year 4
Activity

Support & Collaboration

Notes

Continue to build networks
And interest in projects

Curtin, APFRJ, CUSP

Develop further
ARC and other Competitive
grants,Develop a Centre of Excellence(Sustainable Communities)

Curtin and partners

Open a Centre by 2017

Develop a Learning and Research
centre of RJ in prisonsCurtin, Serco and partners

Open a Centre by 2017

This project began life several years ago,and has already seen several papers produced following
keynote addresses and presentations. The sustainability dimension has only been added over the past
12 months, following Steelsʼnetworking and development of projects within the partnerships built up
around the APFRJ,CUSP and Serco Asia Pacific. The Office of Research and Development and CUSP
have already contributed to much of the above,providing support and motivation. This research willlead and assist with the coordination of multi-disciplined teams entering the prisons to conduct
research interconnected through this project, and to inform the template for other jurisdictions.
References
Aertsen, I., Daems, T., and Robert, L., (2006). Institutionalizing Restorative Justice, Cullompton, Devonand Portland:Willan Publishing.
Ashley,C.(2006)The Family Group Conference Tool-kit ― a practical guide to setting up and runningan FGC service. (Eds). Cardiff. Family Rights group.
Australian Bureau of Statistics
http://www.abs.gov.au/ausstats/abs＠.nsf/Latestproducts/4517.0M ain%20Features22008?
opendocument&tabname＝Summary&prodno＝4517.0&issue＝2008&num＝&view＝>,18March 2009.
Aungles,A.(1994).The Prison and the Home. Sydney,Australia. Institute of Criminology,University
of Sydney law School.
Australian Institute of Criminology (2007). Australian Crime Facts and Figures, 2006. Canberra:
Australian Institute of Criminology.
Austin,J.,et al (2007)Unlocking America:Why and How to Reduce Americaʼ
s Prison Population,JFA
Institute, Washington.
Australian Bureau of Statistics.(2005). Corrective Services (Catalogue No.4512.0). Canberra. Beven,J., Hall, G., Froyland, I., Steels, B., & Goulding, D., (2005) Restoration or Renovation?Evaluating
Restorative Justice Outcomes, in Psychiatry, Psychology and the Law, Vol 12, Issue 1, pp194-206,
June 2005.
Bonta,J.,Jesseman,R.,Rugge,T.,& Cormier,R.(2006)ʻ
Restorative Justice and Recidivism:Promises
M ade, Promises Kept?ʼin (Eds).
Braithwaite,J.,(2002)Setting Standards for Restorative Justice in British Journal ofCriminology(2002)
42. 563-577.
Braithwaite,J.(1989)Crime,Shame and Reintegration,Cambridge,UK:Cambridge University Press.
Burnside. J., and Baker. N., (1994) Relational Justice: Repairing the Breach.
Winchester.

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Consedine, J. (1995). Restorative Justice Healing the Effects of Crime. New Zealand:Ploughshares
Publishing.
Cormier, R., (2002) HEUNI Papers, United Nations Programme Network Institutes Technical Assistance Workshop, Rapporteurʼs Report No 17, 17 April 2002, Vienna.
Coyle, A. (1994)The Prisons We Deserve. London:Harper Collins Publishers.
Coyle, A. (2001a)The M yth of Prison Work. The Restorative Prison Project. London:International
Centre for Prison Studies.
Coyle, A. (2001b) Restorative Justice in the Prison Setting. Conference Paper. Driebergen, The
Netherlands:International prison Chaplains Association Conference.
Department of Corrective Services ― Annual Report2011/2012:28
http://www.correctiveservices.wa.gov.au/ files/about-us/statistics-publications/dcs-annualreport-2011-2012-adults-in-custody.pdf>.
Foucault, M . (1977)Discipline and Punish. London:Penguin Group.
Francis,V.(2001)Restorative Practices in Prison:A review of the literature. The Restorative Prison
Project. London:International Centre for Prison Studies.
Garland,D.(2001)The Culture of Control:Crime and social order in contemporarysociety,Oxford,UK:
Oxford University Press.
Garland, D. (1990)Punishment in Modern Society, Oxford, UK:Clarendon Press.
Goulding, D., (2007)Recapturing Freedom, Hawkins Press, Sydney.
Goulding, D., & Steels, B. (2006)Developing, Implementing and Researching a Communitarian M odelof Restorative and Transformative Justice for Adult Offenders in M agistratesʼCourts, in (Eds)
King, M . and Auty, K., The Therapeutic Role of M agistratesʼCourts, M urdoch eLaw Journal
Special Series, Vol 1, 2006 pp27-50. http://elaw.murdoch.edu.au>.
Goulding, D., Hall, G., & Steels, B. (2008) ʻ
Restorative Prisons: Towards radical prison reformʼ
, inJournal of Critical Criminology.
Healey,D.(2010)The Dynamics ofDesistance― Charting Pathways through change,Willan Publishing.
Hurry,J.,Brazier L.,Parker M .and Wilson A.(2006)Rapid evidence assessment of interventions that
promote employment for offenders. London:Department for Education and Skills.
Latimer, J., Dowden, C., & M uise, D. (2001) The Effectiveness of Restorative Justice Practices: A
M eta-Analysis. Ottawa Department of Justice, Canada.
Leathlean,R.(2004)The Role of Restorative Parks Projects in Community Safety. UK:Thames Valley
Partnership.
Liebmann, M., & Braithwaite, S. (1999) Restorative Justice in Custodial Settings. Report for the
Restorative Justice Working Group in Northern Ireland.
Liebmann, M ., (2007)Restorative Justice:How it Works, Jessica Kingsley Publishers, London.
M ace, A. (2000)Restorative Principles in the Prison Setting:A vision for the future. The Restorative
Prison Project. London:International centre for Prison Studies.

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M arshall, T., (1999). Restorative Justice: An Overview Home Office. Research Development andStatistics Directorate. London, UK. http://www.homeoffice.gov.uk/rds/pdfs/occ-resjus.pdf>.
M axwell, G., & Morris, A. (1993) Family, Victims and Culture: Youth Justice in New Zealand.
Wellington, New Zealand:Institute of Criminology, Victorian University of Wellington.
M aruna, S. and Immarigeon, R. (2004)After Crime and Punishment:Pathways to Offender Reintegration. Willan. Devon UK.
Newell,T.(2001a)Responding to the Crisis:Belgium establishes restorative prisons. Conference Paper.
London.
Shapland,J.,Atkinson,A.,Atkinson,H.,Dignan,J.,Edwards,L.,Hibbert,J.,Howes,M .,Johnstone,J.,
Robinson, G. and Sorsby A. (2008)Does restorative justice affect reconviction?The fourth reportfrom the evaluation of three schemes. M inistry of Justice Research Series 10/08.
Sherman,L.and Strang,H.(2007)Restorative Justice:The Evidence― A report to the Smith Institute,
University of Pennsylvania,Jerry Lee Centre of Criminology and the Esmee Fairbairn Foundation.
Steels,B.,(2008)Imprisonment ofthe many:Capacitybuilding or communitydemolition?In Ngoonjook:a Journal of Australian Indigenous Issues, no. 32, 2008.
Steels,B.,and Goulding,D.,(2009)When itʼs a Question of Social Health and Well-Being,The Answer
is Not Prison”, IndigLawB 21;(2009)7(12)Indigenous Law Bulletin 1.
Steels,B.,and Goulding,D.,(2013)Restorative Justice in the Asia Pacific Region:Acting Fairly,Being
Just,in Liu,J.,Jou,S.,and Hebenton W (2013)(eds)Handbook of Asian Criminology Springer. New
York.
Sullivan,D.,&Tifft,L.,(2006)Handbook of Restorative Justice:A Global Perspective. Routledge,NewYork.
Sykes, G., and Matza, D., (1957) Techniques of Neutralisation:A Theory of Delinquency. American
Sociological Review, Vol 22, Issue 6 pp 664-670.
Tyler,T.,(2006)Restorative Justice and Procedural Justice:Dealing with Rule Breakingʼ,in Journal ofSocial Issues, vol 62, no 2, pp 307-326.

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POLICIES FOR VICTIM PROTECTION AND SUPPORT:CURRENTSITUATION AND PROBLEM S FACED BY VICTIM S OF CRIM E IN
HONG KONG
Betty PANG Mo-yin

I. INTRODUCTION TO HONG KONG
A. Geographical Location
Hong Kong is located in Eastern Asia,the southeast coast of the Peopleʼ
s Republic of China,facing
the South China Sea. Geographically,it consists of three main territories namely,Hong Kong Island,
Kowloon and the New Territories. The geographical location of Hong Kong is at Appendix A.
B. Size and Population
The area of Hong Kong is 1,104 sq km. The population at the end of 2012 was 7,173,000.
C. The Hong Kong Special Administrative Region
The Chief Executive (CE)is the head of the Hong Kong Special Administrative Region (HKSAR).
The main administrative and executive functions of the Hong Kong Government are carried out by
three secretary departments, 12 policy bureaux (consisting of 61 departments and agencies)and otherservices.
(a)Secretaries of Departments
Chief Secretary for Administration
Financial Secretary
Secretary for Justice(b)Directors of Bureaux
Secretary for Transport and Housing
Secretary for Home Affairs
Secretary for Labour and Welfare
Secretary for Financial Services and Treasury
Secretary for Commerce and Economic Development
Secretary for Constitutional and M ainland Affairs
Secretary for Security
Secretary for Education
Secretary for Civil Service
Secretary for Food and Health
Secretary for the Environment
Secretary for Development(c)Other Services
Commissioner of Police
Commissioner of Independent Commission Against Corruption
Commissioner of Customs and Excise
Director of Immigration
Director of Audit
The civil service employed approximately156,000 people,or about 4% ofthe Hong Kong workforce.
Apart from administering public services, its main tasks are to assist the Chief Executive and princiSenior Superintendent of Police, Hong Kong Police Force.

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RESOURCE MATERIAL SERIES No. 93
pals in formulating policies and carrying out decisions.
D. Special Features
Hong Kongʼs free economic system and low tax rate have created a favourable environment for thecityʼ
s development in finance, banking, trade, industry and commerce, real estate, shipping and civil
aviation. Hong Kong is one of the most densely populated places in the world. The land population
density in mid-2012 stood at 6,620 persons per sq km.
E. Visitors
In the year 2012,Hong Kong registered a record of 48.62 million visitor arrivals. M ainland visitors
reached 34.91 million in 2012 and continued to be the largest source of visitors to Hong Kong.
F. Crimes
In 2012, a total of 75,930 crimes were reported. The overall crime rate was 1,064 per 100,000
persons.

II. HONG KONG POLICE FORCE
A. Command
The Hong Kong Police Force (the Force)is headed by the Commissioner of Police who is responsible to the Chief Executive of the Hong Kong Special Administrative Region for the administrationand operational efficiency of the Force. He is assisted by two Deputy Commissioners. The Deputy
Commissioner of Police (Operations) is responsible for operations, crime and security; whereas the
Deputy Commissioner of Police (M anagement) is responsible for personnel, training, management
services, finance, administration and planning.
At the end of 2012, the Force had 28,400 regular police officers, 4,700 civilian staff, and 4,500
auxiliary police officers. The police-population ratio in 2012 was 394 regular officers for every 100,000
persons.
B. Vision, Common Purpose and Values
The Forceʼs Vision, Statement of Common Purpose and Values have been in place since 1996.
VisionThat Hong Kong remains one of the safest and most stable societies in the world

CommonPurposeThe Hong Kong Police Force will ensure a safe and stable society by:upholding the rule of law
maintaining law and order
preventing and detecting crime
safeguarding and protecting life and property
working in partnership with the community and other agencies
striving for excellence in all that we domaintaining public confidence in the Force

ValuesIntegrity and honesty
Respect for the rights of members of the public and of the ForceFairness, impartiality and compassion in all our dealings
Acceptance of responsibility and accountability
Professionalism
Dedication to quality service and continuous improvement
Responsiveness to change
Effective communication both within and outwith the Force

C. Strategic Directions
The Force reviews its Strategic Directions on an annual basis. The Strategic Directions 2012-2014
cover Engaging the Community, Enhancing Personal and Professional Qualities of Force M embers,
Strengthening Criminal Intelligence Gathering Force-wide, and Supporting Frontline Units.

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D. Classification and Detection of Crime
The Force classifies crimes into the following ten categories:(a)Violent Crime against Person(b)Violent Crime against Property(c)Burglary & Theft(d)Fraud & Forgery(e)Sexual Offence(f) Serious Drug Offences(g)Offences against Lawful Authority(h)Serious Immigration Offences(i) M iscellaneous Crimes(j) Preventive Crime
In 2012, 75,930 crimes were reported. 33,094 cases were detected;representing a detection rate of
43.6%, which was an increase of 1.1% when compared with 42.5% in 2011.

III. VICTIM PROTECTION AND SUPPORT
A. Problems Faced by Victims
It is not uncommon that police officers encounter victims ofcrime who are uncooperative during theinvestigation. Whilst there could be many forms and reasons for such behaviour,it is rather obviousthat the attitude of victims could have a significant role in the quality and success of an investigationand subsequent prosecution. It is therefore ofparamount importance that victims are given proper careand treatment.
It takes courage for victims to report a crime committed on them and going through various
investigative and prosecutorial procedures. This is particularly true for victims of crimes that can becollectively known as abusive offences for instances domestic conflicts, family violence, sexual
offences,child and elder abuse;whereby the abuser is often a relative or carer upon whom the victim
is dependent and fears the loss of their support. As such, the victim might appear uncooperative inorder to avoid causing disharmony or embarrassment within the family. Other reasons include amisplaced sense of shame or guilt,or concern about being disbelieved or blamed for being the cause of
the problem.
There could be many reasons for a victim to be uncooperative;but generally speaking, problems
faced by victims include but are not limited to:(a)Fear of revenge(b)Fear of losing care(c)Fear of publicity(d)Lack of confidence in government/police(e)Lack of knowledge regarding available assistance67

RESOURCE MATERIAL SERIES No. 93(f) Embarrassment(g)Incapacitated(h)Relationship with offender(i) Complicated investigative and legal procedures(j) Re-traumatizedHong Kong accords high importance in providing protection and support to victims of crime witha view to achieving the dual purpose of preventing further crimes and prosecuting offenders. This
support and protection comes in many ways including legislation, administrative measures, multiagency approach, protection and support provided by the Force, other government departments, andnon-government organizations.
B. Victim Protection and Support ― Legislation
Hong Kong is a signatory member of core international conventions on human rights, and corresponding legislation is in place to protect victims of crime. Where appropriate, amendments to andenactment of legislation is made with a view to enhancing protection of victims. Below is a list of
existing legislation in Hong Kong that has provisions or relevance in the protection and support ofvictims:(a)Evidence Ordinance (Cap 8)
Provisions to strengthen evidence given by children(b)Mental Health Ordinance (Cap 136)
To protect the welfare of mentally incapacitated persons, including provisions for a
Guardianship Board(c)Domestic and Cohabitation Relationships Violence Ordinance (Cap 189)
Provisions of injunction orders to protect victims of domestic violence(d)Crimes Ordinance (Cap 200)
Provisions to protect the identity of sexual-offence victims(e)Offences Against the Person Ordinance (Cap 212)
Criminalizing various forms of child abuses(f) Protection of Children and Juveniles Ordinance (Cap 213)
Care or Protection Orders for children and juveniles in need(g)Criminal Procedure Ordinance (Cap 221)
Provisions to reduce stress and trauma of victims (vulnerable witnesses give evidence andcross-examined via live television link,support person scheme,closed court,non-disclosureof witness identity)(h)Summary Offences Ordinance (Cap 228)
Prohibits taking photographs etc. in court that may lead to identification of the victims(i) Sex Discrimination Ordinance (Cap 480)
To protect people from sex discrimination(j) Witness Protection Ordinance (Cap 564)
Provisions of a programme to protect witnesses and associated persons

68156TH INTERNATIONAL SENIOR SEM INAR
VISITING EXPERTSʼPAPERS(k)Prevention of Child Pornography Ordinance (Cap 579)
To protect children from erotic acts(l) Racial Discrimination Ordinance (Cap 602)
To protect people from racial discrimination
C. Victim Protection and Support ― Administrative Measures
1. Special M easures for Child Victims/Witnesses
In addition to the arrangements authorized under the law to avoid re-traumatizing child victims/
witnesses while they are giving evidence in court, i.e. submission of video recorded interview as
evidence during examination-in-chief,giving evidence bywayofa live TV link in criminal proceedings,
and victims accompanied by a support person while giving evidence in court (Witness Support
Programme);other special measures for child victims/witnesses include:(a)Viewing his/her video recorded interview to refresh memory before the trial;(b)Paying a pre-trial visit to the court;(c)Provision of special passages when entering and leaving court;(d)Cases involving child victims will be given priority in listing;and(e)Postponement of trial would only be allowed in very exceptional circumstances in order to avoid
child victims being burdened by additional stress.
2. Special M easures for Other Vulnerable Witnesses
In addition to protection and support available for child victims/witnesses,administrative measures
are also in place to protect other vulnerable witnesses, e.g. victims of sexual-offence cases. To
minimize stress or further trauma on victims of sexual offences during court proceedings, the Police
may apply to a court for appropriate protective measures. Having considered the circumstances ofeach case, the following measures could be adopted:(a)Banning of shooting and recording in court
No shooting and recording is allowed in court to prevent disclosure ofthe identityofvictims.
(b)Provision of screen during trial
When a victim gives evidence in a courtroom, the court, upon the application of theprosecution,may arrange for a screen to be placed around the victim so that the public andthe press will not be able to view or identify the victim during the proceedings.
(c)Provision of special passage
Where circumstances warrant,the court may order special arrangement be made for victims
to enter/leave the court building through special passages. Such order is generally madeupon application of the prosecution.
(d)Special arrangement in courtʼs daily case list
Courtʼ
s daily case list placed at the reception counter or Judiciary website for dissemination
to the public will only display the initials of a defendantʼs name if full disclosure may leadto identification of the victims.
3. Sexual Conviction Record Check Scheme (SCRC)
Sexual Conviction Record Check Scheme (SCRC) is established to enable employers of persons
undertaking child-related work and work relating to mentally incapacitated persons (M IPs)to check
whether their prospective employees have a criminal conviction record for certain types of sexual
offences. The purposes of the SCRC are:(a)To prevent previous sexual offenders from obtaining the trust of employers by deliberately

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withholding their past sexual conviction records and molesting children or M IPs again throughcontact with them in the course of their work;and(b)To reduce the risk of sexual abuse to children or M IPs and give them better protection.
D. Victim Protection and Support ― M ulti-Agency Approach
1. Working Groups
The Hong Kong Government adopts a multi-agency and cross-sectoral approach in combating
crimes and providing protection and support to victims.In line with this strategy,the Force has beenworking closely with different government departments and non-governmental organizations (NGOs)
to protect the best interests and rights of victims. Representatives from the Force attend various
working groups that were formed to address specific areas of concern including examining respective
problems and mapping out strategies to address them.Some of the working groups attended by Force
representatives are:(a)Committee on Child Abuse
Focuses on issues relating to child abuse(b)Working Group on Combating Violence
Emphasizes spouse battering and sexual violence(c)Working Group on Elder Abuse
Aims at tackling elder abuse problems
2. M ulti-Agency Referral M echanisms
In addition to performing the core duties of case investigation and prosecution, the Force also
provides protection and support to victims by utilizing its own resources and/or through close collaboration with other government departments and non-governmental organizations (NGOs). Timelyreferral mechanisms have been established between the Force and relevant stakeholders including
24-hour Police Designated Hotline to facilitate police referrals and arranging emergency services.
3. Child Protection Special Investigation Team (CPSIT)
The Child Protection Special Investigation Team (CPSIT) is formed by specially trained police
officers and social workers to conduct joint investigation into cases of suspected child abuse with aview to collecting evidence, which will be admissible in criminal proceedings, and to prevent further
trauma to the child by having to repeat details of the allegation to different persons.
4. M ulti-disciplinary Case Conference (M DCC)
M ulti-disciplinary Case Conference(MDCC)is an effective multi-disciplinary cooperation model forchild abuse, domestic violence and elder abuse cases. MDCC is most commonly used for child abusecases. It is a forum by which professionals having a major role in handling and investigation of thecase for instances social welfare officers,the police (officer-in-charge of the case),parents,guardians,
carers, clinical psychologist, and representatives from Education Department/school, can share theirprofessional knowledge,information and concern on the victimʼ
s health,development,functioning,and
his/her parents/guardians/carersʼability to ensure safety of the victim.
E. Victim Protection and Support ― Provided by the Hong Kong Police ForceThe Force has initiated various victim protection and support measures with a view to enhancing
the service quality and gaining trust and cooperation from victims so that the investigation andprosecution could be conducted more effectively and efficiently. Highlights of these initiatives are:
1. Performance Pledge
Performance pledges on ʻ
Criminal Investigationʼand ʻ
Witness Reassuranceʼdesigned by the Forceprovide information on certain standards of service that victims or witnesses can expect, including
their rights to be informed of progress of the investigation, reassurance for vulnerable witnesses andthose in fear. A copy of the performance pledges is at Appendix B.

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2. Rights of Victims and Witnesses of Crime
The Force publishes a notice to victims and witnesses of crime informing them oftheir rights during
investigation and prosecution. The notice contains information/advice on treatment and services they
are entitled to receive, including their rights of access to information and obtaining legal representatives during interview with the police, and specific provisions for child victims or witnesses. A copyof the notice is at Appendix C.
3. Witness in Court
The leaflet ʻ
Witness in Courtʼis published by the Force to better prepare victims/witnesses before
attending court by informing them what to expect in court. The leaflet provides information on thetype and function of criminal courts in Hong Kong,the appropriate dress code,use of language,court
procedures, the sitting of different persons inside courts, witness expenses for attending court andprevention on interference with witnesses. A copy of the leaflet is at Appendix D.
4. Witness Protection Unit (WPU)
The Witness Protection Unit (WPU)was formed in April 1995. The unit consists of permanent staff
supported by a pool of cadre officers. Its primary function is to run the Witness Protection Programme(WPP),which aims at encouraging members of the public to come forward to give evidence as witness
in criminal cases by offering effective protection to them. The unit also advises case officers on
matters regarding various means and degree of witness protection.
5. Non-Disclosure of VictimsʼIdentities
In respect of child abuse, rape and other sexual offences (including homosexual offences), triad
related offences, blackmail, debt-collection cases, or where the officer-in-charge of the case considers
that a victim or witness might be interfered, only limited information that would not disclose thevictimʼs or witnessʼs identity,e.g.the sex,age and occupation,are provided in documents that required
circulation.
6. Enhanced Central Domestic Violence Database (ECDVD)
The Enhanced Central Domestic Violence Database (ECDVD)was set up in 2005 by the Force forfrontline officers to swiftly check, upon receiving a report of a case involving domestic violence,
whether persons involved in the case were also involved in similar or other related cases, such as
repeated domestic violence,child abuse,elder abuse and missing person cases anywhere in Hong Kong.
Such data enables frontline officers to obtain more background information on the case, so that they
can assess the risk of continuation and recurrence of similar incidents in order that swift and appropriate actions can be taken in respect of the investigation and provision of protection and support tovictims.
The ECDVD also has an automatic alert function that notifies case officers and supervisors whena person who was involved in a domestic violence case handled by them previously becomes involvedin a fresh domestic violence case. This ensures the ongoing nature of the problem is brought to thepoliceʼs attention so that additional preventative measures can be considered.
7. Child Abuse Investigation Units (CAIU)
Police investigate all child abuse reports with the aim of collecting sufficient evidence to prosecute
abusers whilst protecting victims. The Child Abuse Investigation Units (CAIU), which comprise of
specially trained detectives,investigate serious child abuse cases;and where necessary,will collaborate
with the Family and Child Protective Services Unit and Clinical Psychologists of the Social Welfare
Department (SWD).
8. Vulnerable Witness Interview Suite (VWIS)The Force maintains a number of Vulnerable Witness Interview Suites (VWIS)at discreet locations
throughout Hong Kong where vulnerable witnesses can be interviewed and medically examined in asafe and comfortable environment. Each VWIS contains facilities and equipment for recording videointerviews and forensic examination so that ʻ
one stop serviceʼcan be provided to minimize the stressexperienced by victims.

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9. Specific Protocols for Handling Domestic Violence Cases
Experience indicates that domestic conflicts might escalate into violence and have a significant
impact on victims and society as a whole. In order to apprehend offenders and provide the bestprotection and support to victims, the Force provides specific training for officers responsible forhandling these cases. Specific protocols are also in place to enhance the quality of investigation andmaximize the support and protection provided to victims and their family. These protocols include:(a)A supervisor ofat least Sergeant rank will attend the scene ofcrime to ensure correct assessmentof the case;(b)Use of checklist to ensure that frontline officers complete all actions required;(c)Deploy the same team to handle reports from the same family for better investigation andservices (one family, one team);(d)Each Police district has a designated team to investigate serious domestic violence cases;(e)Victims are given leaflets (with 10 different languages)which include information on available
services provided by the government and non-governmental organizations;(f) Victims are given advice on how to reduce the risk of recurrence and are referred to the Social
Welfare Department for various welfare services;and(g)Implementation of the Victim Management Scheme and Victim Support Programme for Victims
in Domestic Violence to ensure that the victim is well taken care of during the investigation,
before, during and after court hearing.
10.Senior Police Call
In order to enhance protection and support to the elderly population, the Police have developed a
Senior Police Call scheme,which is an effective platform for regular engagement between the elderly
population and the Police. The programme promotes ʻ
productive agingʼand encourages elderly tosupport other elderly and the community, promotes crime prevention by developing fight crime
partnership with the Police,and promotes personal safety through reducing victimization and enhancing road safety awareness.
F. Victim Protection and Support ― Provided by Other Government Departments
There are different victim protection and support services provided by other government departments,such as the Department of Justice and the Social Welfare Department. The following are someexamples:
1. Criminal and Law Enforcement Injuries Compensation Scheme (CLEIC)The aim of the Criminal and Law Enforcement Injuries Compensation Scheme(CLEIC)is to provide
financial assistance to persons (or their dependants in cases of death)who are injured as a result of acrime of violence, or by a law enforcement officer using a weapon in the execution of his duty.
Payments under the scheme come from public funds. The Social Welfare Department is responsible forstaffing applications including assessment and arranging payment.
2. The Victims of Crime Charter (Department of Justice)
M embers of the community who come into contact with the criminal justice system, particularly
victims of crime, are entitled to know what their obligations are in helping the law enforcement
agencies and,in return,what standard of service they can expect to receive from those involved in thecriminal justice system. The Victims of Crime Charter developed by the Department of Justice sets out
the rights and duties of victims of crime. A copy is at Appendix E.
In addition to the Victims of Crime Charter,the Department of Justice also publicizes programmes
to enhance awareness of members of the public on their services such as,provision oflegal aid services.

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3. One-stop Service M odel (Social Welfare Department)
The Social Welfare Department provides specific support services to victims of sexual violence,
which includes the One-stop Service M odel. The principle of the model is to minimize the need forvictims to undergo different procedures and repeat the incident. It provides professional services thatare easily accessible to victims on a 24-hour basis.An important feature of the model is the designationof the same social worker as a case manager for better coordination of services among different
departments and units, and to provide victims with customer-oriented service. Victims can receive
services and go through all relevant procedures in a convenient, safe, confidential and supportive
environment, which minimizes the need to repeat their unpleasant experience.
G. Victim Protection and Support ― Provided by Non-Governmental Organizations
Non-governmental organizations (NGOs)in Hong Kong,either working independentlyor in collaboration with different government departments,provide various types of support to victims of crime,for
instance, temporary shelters for child victims or victims of domestic conflicts incidents, financial
assistance, and counselling services.
One of the facilities is a crisis intervention and support centre called ʻ
CEASE Crisis Centreʼof theTung Wah Group of Hospitals (an NGO). Operating round-the-clock throughout the year, the centre
provides immediate intervention and support services to victims of sexual violence. Social workers of
the centre will provide the following 24-hour outreaching services:(a)Arrangement of suitable venue, e.g. hospital, for taking statements and conducting forensic
examination;(b)Aftercare medical services at family/gynaecology clinic, e.g.prevention of pregnancy or transmission of disease;(c)Emotional support or counselling service, psychological treatment and temporary accommodation;and(d)Victim will be accompanied throughout the process of investigation and court proceedings.

IV. CONCLUSION
Hong Kong accords high importance in providing protection and support to victims of crime
through legislation, administrative measures, multi-agency approach, and various measures andmechanisms adopted by the Hong Kong Police Force, other government departments and nongovernmental organizations;with a view to achieving the dual purposes of preventing further crimes
and prosecuting offenders. The Force will continue to work with its stakeholders to safeguard victimsʼ
best interests, rights and welfare.

Important Notice
All rights, including copyright, in this document are owned and reserved by the Hong Kong
Police Force. Unless prior permission in writing is given by the Commissioner of Police, you
may not use the materials other than for your personal learning and in the course of your official
duty.

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APPENDIX A
Geographical Location of Hong Kong

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APPENDIX B
Performance Pledge ― Crime Wing

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Appendix B1

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Appendix B277

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APPENDIX C
Rights of Victims and Witnesses of Crime78

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Appendix C1

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APPENDIX D
Witness in Court

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Appendix D1

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Appendix D2

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Appendix D3

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APPENDIX E
The Victims of Crime Charter

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Appendix E1

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Appendix E2

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Appendix E3

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Appendix E488

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Appendix E589

CHILD PROTECTION POLICY UNIT OF THE
HONG KONG POLICE FORCE
Betty PANG Mo-yin

I. INTRODUCTION TO HONG KONG
A. Geographical Location
Hong Kong is located in Eastern Asia,the southeast coast of the Peopleʼ
s Republic of China,facing
the South China Sea. Geographically,it consists of three main territories namely,Hong Kong Island,
Kowloon and the New Territories.
B. Size and Population
The area of Hong Kong is 1,104 sq km. The population at the end of 2012 was 7,173,000.
C. The Hong Kong Special Administrative Region
The Chief Executive (CE)is the head of the Hong Kong Special Administrative Region (HKSAR).
The main administrative and executive functions of the Hong Kong Government are carried out by
three secretary departments, 12 policy bureaux (consisting of 61 departments and agencies)and otherservices.
(a)Secretaries of Departments
Chief Secretary for Administration
Financial Secretary
Secretary for Justice(b) Directors of Bureaux
Secretary for Transport and Housing
Secretary for Home Affairs
Secretary for Labour and Welfare
Secretary for Financial Services and Treasury
Secretary for Commerce and Economic Development
Secretary for Constitutional and M ainland Affairs
Secretary for Security
Secretary for Education
Secretary for Civil Service
Secretary for Food and Health
Secretary for the Environment
Secretary for Development(c)Other Services
Commissioner of Police
Commissioner of Independent Commission Against Corruption
Commissioner of Customs and Excise
Director of Immigration
Director of Audit
The civil service employed approximately156,000 people,or about 4% ofthe Hong Kong workforce.
Apart from administering public services, its main tasks are to assist the Chief Executive and principals in formulating policies and carrying out decisions.
Senior Superintendent of Police, Hong Kong Police Force.

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D. Special Features
Hong Kongʼs free economic system and low tax rate have created a favourable environment for thecityʼ
s development in finance, banking, trade, industry and commerce, real estate, shipping and civil
aviation. Hong Kong is one of the most densely populated places in the world. The land population
density in mid-2012 stood at 6,620 persons per sq km.
E. Visitors
In the year 2012,Hong Kong registered a record of 48.62 million visitor arrivals. Mainland visitors
reached 34.91 million in 2012 and continued to be the largest source of visitors to Hong Kong.
F. Crimes
In 2012,a total of 75,930 crimes were reported. The overall crime rate was 1,064 per 100,000 persons.
Special Features

II. HONG KONG POLICE FORCE
A. Command and Structure
The Hong Kong Police Force (the Force)is headed by the Commissioner of Police who is responsible to the Chief Executive of the Hong Kong Special Administrative Region for the administrationand operational efficiency of the Force. He is assisted by two Deputy Commissioners. The Deputy
Commissioner of Police (Operations) is responsible for operations, crime and security; whereas the
Deputy Commissioner of Police (M anagement) is responsible for personnel, training, management
services, finance, administration and planning. Structure of Hong Kong Police Force is provided in
Chart 1 on page 92.
At the end of 2012, the Force had 28,400 regular police officers, 4,700 civilian staff, and 4,500
auxiliary police officers. The police-population ratio in 2012 was 394 regular officers for every 100,000
persons.
B. Vision and Common Purpose
The Forceʼs Vision and Statement of Common Purpose are:
VisionThat Hong Kong remains one of the safest and most stable societies in the world

CommonPurposeThe Hong Kong Police Force will ensure a safe and stable society by:upholding the rule of law
maintaining law and order
preventing and detecting crime
safeguarding and protecting life and property
working in partnership with the community and other agencies
striving for excellence in all that we domaintaining public confidence in the Force

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Chart 1:Hong Kong Police Organizational Structure

C. Strategic Directions and Operational Priorities
Every year, the Commissioner of Police addresses challenges through a structured strategic planning process that identifies and prioritizes future requirements to enable the Force to build on its
success as a respected and trusted police service locally and abroad. Strategic Directions andOperational Priorities were then formulated.
The Strategic Directions 2012-2014 cover Engaging the Community, Enhancing Personal andProfessional Qualities of Force Members, Strengthening Criminal Intelligence Gathering Force-wide,
and Supporting Frontline Units.
The Commissionerʼs Operational Priorities 2013 are Violent Crime;Triad, Syndicated and Organized Crime;Dangerous Drugs;Quick Cash Crime;Technology Crime;Public Safety;and Terrorism.
Under the first operational priority Violent Crime,Domestic Violence is identified as one of the main
issues;and it is the direction of the Commissioner of Police that all reports of domestic violence should
be professionally handled and investigated.
The Child Protection Policy Unit (CPPU)within the Hong Kong Police Force is a designated unit
responsible for dealing with amongst others,policy matters of domestic violence. This paper describes
the roles and functions of the CPPU.

III. CHILD PROTECTION POLICY UNIT
A. Command and Structure
The Child Policy Protection Unit (CPPU)was established in 1997 under B Department (Crime and92

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Security) of the Hong Kong Police Force (the Force), and is a unit within the Crime Support Group
under Crime Wing. The overall command of the Crime Support Group is a Chief Superintendent.
He/she is assisted by two Senior Superintendents,one of which is in charge of the CPPU. The positionof CPPU within the Force organizational structure is as follows:

At the time when CPPU was set up in 1997, its primary duties were to deal with policies on childprotection. Over the years, its charter has been expanded to also handle policies, procedures andtraining in relation to domestic violence,child abuse,elder abuse,sexual violence,which are commonly
known as abusive offences;the Police Superintendent Discretion Scheme (PSDS) for juvenile crimes;
and child pornography. Actions are in hand to amend the nomenclature of the unit with a view tobetter reflect its current roles and functions.
CPPU consists of a Chief Inspector, three Inspectors, a Sergeant, three Constables, and a Police
Clinical Psychologist (PCP). The major functions of the PCP are providing advice on formulation ofpolicy and procedural guidelines on victim protection;and training in handling child and vulnerable
victims/witnesses. He/she also assists the Force in conducting psychological assessment of persons
involved in criminal cases,which is commonly known as criminal profiling,and gives expert evidence
in court. The structure of CPPU is as follows:

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B. Roles and Functions
CPPU combats abusive offences and juvenile crimes by adopting multi-agency and cross-sectoral
approach in pursuit of the twin goals of protecting victims and prosecuting offenders. The roles andfunctions of CPPU are as follows:(a)Formulation and implementation of Force policies
As a policy unit,CPPU is responsible for devising,formulating and implementating government and Force policies and procedures in respect of child abuse,domestic violence,sexual
violence, elder abuse and juvenile crime cases to ensure appropriate and coordinatedresponse to reports of these cases in collaboration with multi-agency professionals.
(b)Liaison with other government departments and non-governmental organizations (NGOs)
CPPU works closely with individual governmental departments and non-governmentalorganizations on multi-disciplinary procedures, inter-agency cooperation, training andcoordination on subject matters under its purview. Representatives of CPPU are currently
attending three working groups/committees that are set up by the government to examineand deal with problems of abusive offences and to map out preventive strategies. CPPU
keeps the Force abreast of the latest development in governmental policies and formulates
plans for effective implementation within the Force.
(c)Liaison with overseas law enforcement agencies, victim and witness care agencies and nongovernmental organizations (NGOs)
CPPU keeps regular contact with overseas law enforcement agencies, victim and witness
care agencies and non-governmental organizations (NGOs)on new initiatives and practices
in respect of investigation and presentation of evidence in criminal proceedings involving
children, mentally incapacitated persons and battered spouses.
(d)Assist in legislation issues
CPPU assists the Hong Kong Government in introducing and amending legislation on

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subject matters under its purview. The unit also identifies implications to the Force in termsof policy,procedures and resources consequent to the enactment of relevant legislation andmakes recommendations to Force management where appropriate.
(e)M onitor crime trends
CPPU monitors trends in crimes against children and mentally incapacitated persons,domestic violence,sexual violence,elder abuse and juvenile crime with a view to improving
relevant strategies, policies and procedures in dealing with these offences.
(f) Training
CPPU devises and develops inter-agency training and a tiered Force training programme onchild abuse investigation,domestic violence handling,sexual violence investigation,juvenile
crime prevention and after care services.
(g)Assist Department of Justice
CPPU assists the Department of Justice in liaising with police formations in matterspertaining to child abduction under the Hague Convention on International Child Abduction.
(h)Contact point with Social Welfare Department on the Witness Support Programme
CPPU coordinates and processes all requests under the Witness Support Programme andliaises with Social Welfare Department for subsequent arrangement.
(i) Research on related issues
CPPU works closely with local universities and other research institutes/associations on
research projects;and where appropriate, organizes seminars to update Force members on
new issues that can be of relevance in enhancing the Forceʼs overall capabilities in tackling
abusive offences.
C. Highlights of Engagement
1. Overseas Liaison and Exchange of Expertise
CPPU takes an active approach in the exchange of experience and expertise with other international focus groups and law enforcement agencies;and proactively engages international and local
communities through participation in workshops,seminars and exchange programmes. Through these
activities, CPPU shares its experience, expertise and knowledge with other counterparts, and introduces good practices of the Force. Most of the counterparts are representatives of other law enforcement agencies, academics, experts and non-governmental organizations.
During the past two years, CPPU officers have participated in the following major events:(a)The 9th International Symposium of Best Police Practices in Dubai
CPPU shared good practices on childrenʼ
s rights and child violence with participants from
Western, Asian, M iddle East and African countries.
(b)The 1st South East Asia Working Party M eeting of the Interpol Specialist Group on Crimes
against Children in Bangkok
CPPU and participants from Western and Asian countries shared experiences on tackling
crimes against children.
(c)The 12th Guangdong, Hong Kong and M acao Exchange Programme
CPPU and law enforcement agencies from Guangdong and M acao exchanged experienceand good practices in handling of domestic violence.
(d)The 31st M eeting of the Interpol Specialist Group on Crime against Children in Lyon, France
CPPU and participants from different countries shared and exchanged opinions on latest
crime trends, and strategy and technology adopted to combat crimes against children.
(e)Overseas Development Programme at Singapore Police Force

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CPPUʼ
s representative shared with Singapore Police on training on handling abusive
offences.
2. Inter-Departmental Liaison
In the context of victim protection, the Force will not be successful without the cooperation andsupport of other governmental departments and agencies. CPPU enters into partnerships with theSocial Welfare Department, Department of Health and Department of Justice to work out plans forformulating policies and cooperation protocols in relation to protection of victims of crime.
CPPU represents the Force to attend working groups and committees that provide a platform for
relevant stakeholders from the government, non-governmental agencies and experts to examine theproblems of abusive offences and work out corresponding measures. These working groups andcommittees are:(a)Committee on Child Abuse chaired by the Director of Social Welfare to examine problems ofchild abuse and map out strategies to address the problem identified(b)Working Group on Combating Violence chaired bythe Director ofSocial Welfare responsible formapping out strategies to address the problem of spouse battering and sexual violence(c)Working Group on Elder Abuse chaired by the Assistant Director of Social Welfare(Family andChild Welfare) responsible for examining the issue of elder abuse and proposing strategies toaddress the problem
3. Inter-Departmental Training
The Force fully realizes the importance of professional ability and knowledge that its members
should equip in fighting crime and providing protection and support to victims to safeguard their rights,
well-being and welfare. In order to enhance the overall professionalism of Force members, CPPU
invites the Social Welfare Department to jointly organize the Child Protection Special Investigation
Course (CPSIC), which is a tailor-made training programme for detectives, clinical psychologists andsocial workers engaged in dealing with abusive offences. Only after attending the training,officers are
qualified to take part in the investigation of cases involving serious sexual abuse or violence againstchildren or mentally incapacitated persons.
CPPU also proactively engages its stakeholders in training and experience sharing sessions with aview to enhancing cooperation and collaboration for mutual benefits. Recent exchanges include a
training session with the Social Welfare Department where CPPU shared experience in handling
victims and safeguarding their rights and welfare in domestic violence cases, and a training session
with the Correctional Service Department where CPPU shared experience in handling youth offenders
by way of caution (Police Superintendent Discretion Scheme ― PSDS)instead of prosecution.
4. Public Engagement
CPPU also commits to engaging the public through education with a view to raising the publicʼsawareness on protection and support to victims ofcrime. During the past years,CPPU has participatedin a series of programmes organized by different public groups, for instances:(a)Seminar organized by The Hong Kong University
During the seminar,CPPU officers introduced the Force policy and procedures on handlingsexual violence cases to university professors, social workers, non-governmental organizations and overseas scholars.
(b)Seminar organized by the Hong Kong Federation of Women Lawyers
Participants of the seminar include members of the public,lawyers,social workers,professionals and legislative councillors. During the seminar,CPPU officers introduced the Force
policy and procedures on handling sexual violence cases and highlighted its cooperation
with governmental departments and non-governmental organizations in the protection of
victims against further trauma. CPPU also shared with participants of the seminar its

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experience in implementing legislation relating to protecting victims of sexual violence.
(c)Seminar organized by the Philippine Consulate
During the seminar,CPPU officers offered advice to Philippine nationals working in Hong
Kong on protection against violence and provided information on assistance provided bygovernment departments and non-government organizations (NGOs).
(d)TV Programme
CPPU has designed a TV programme on elder abuse to raise public awareness and advocate
protection to elderly victims.
5. Internal Training
CPPU recognizes the importance of training to Force members in handling abusive offences, andhas been constantly updating training materials and injecting new initiatives to improve its training.
In addition to providing regular training on handling domestic violence, sexual violence, child abuse,elder abuse and juvenile crime in foundation training, criminal investigation courses, and varies
development and promotion courses, CPPU has recently developed the following training packages:(a)A training package on ʻ
Handling of Elder Abuseʼwith emphasis on protection and support of thewell-being and welfare of elderly victims;and(b)A training package ʻ
The Hidden Truthʼwith emphasis on the importance of applying patienceand empathy to different types of victims of abusive offences.
6. Legislation
CPPU has been representing the Force in assisting the Hong Kong Government in introducing newlegislation and amendments to existing ordinances in areas under its purview. The following are someexamples of CPPUʼ
s involvement:(a)Child Abduction Legislation (Miscellaneous Amendments)Bill 2013This law protects children from parental abduction. CPPU has offered comments on thepracticality of the amended Bill and has been attending Bills Committee Meeting with othergovernment officials on behalf of the Force.
(b)Sexual Offences Reform
The definition of some sexual offences will be redefined and new offences will be created forbetter coverage and protection. The Senior Superintendent of Crime Support Group in
charge of CPPU represents the Force in the Law Reform Sub-committee on Review of
Sexual Offences.
(c)Death of Child
To cover grey areas in proving criminal liability of child murders and child abuse. The
Senior Superintendent of Crime Support Group in charge of CPPU represents the Force inthe Law Reform Sub-committee on Death of Child.
D. Challenges
CPPU considers that the following issues would be major challenges to the Force in the fight against
abusive offences and the protection and support to victims of crime.
1. Building Trust with Victims of Crime
Victims of crime may hesitate or are reluctant to report crimes for various reasons. In order toenhance victimsʼtrust in the Forceʼs capabilities in tackling crimes and its abilities to protect andsupport them,it is considered that more training on officersʼ
professional sensitivityin handling victims
should be arranged.
2. Law Reform
Changes in laws and corresponding administrative and procedural adjustments would require extra

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resources to train up officers in the implementation of new procedures in order to maintain the Forceʼsprofessionalism and capabilities.
3. Economic and Financial Stability
Economic and financial stability are often factors affecting the harmony of a family. Generally
speaking,financial/economic downturn may lead to an increase in conflicts over family problems andthereby increasing the risk of using violence. It is therefore necessary that the Force continue tomaintain a close and constructive relationship with its stakeholders for information sharing in orderto enhance the effectiveness in investigation, prosecution, as well as victim protection and support.
4. Aging Population
The population of Hong Kong is aging. By 2016,the percentage of the population over 65 years ofage will be 16%. It is anticipated that by the year 2036,that percentage will rise to 29%. The increasein the elderly population and decrease in workforce may lead to an increase in crimes relating toelderly people for instance, more illegal gambling activities involving the elderly, or elderly people
becoming victims of crimes such as embezzlement, deception and theft. Providing more training toForce members and continuous collaboration with relevant stakeholders are both essential in maintaining the Forceʼs overall professionalism in dealing with these crimes and providing support to elderly
victims.

IV. CONCLUSIONCPPU is committed to maximize the effectiveness of actions in combating abusive crimes and willcontinue to strengthen multi-agency and cross-sectoral collaboration with other governmental departments, non-governmental organizations and professionals for continuous improvement.

Important Notice
All rights, including copyright, in this document are owned and reserved by the Hong Kong
Police Force. Unless prior permission in writing is given by the Commissioner of Police, you
may not use the materials other than for your personal learning and in the course of your official
duty.

98

COOPERATION WITH OTHER AUTHORITIES:ORGANIZATIONS AND EXPERTS TO PROTECT AND SUPPORTVICTIMS OF CRIM E IN HONG KONG
Betty PANG Mo-yin

I. INTRODUCTION TO HONG KONG
A. Geographical Location
Hong Kong is located in Eastern Asia,the southeast coast of the Peopleʼ
s Republic of China,facing
the South China Sea. Geographically,it consists of three main territories namely,Hong Kong Island,
Kowloon and the New Territories.
B. Size and Population
The area of Hong Kong is 1,104 sq km. The population at the end of 2012 was 7,173,000.
C. The Hong Kong Special Administrative Region
The Chief Executive (CE)is the head of the Hong Kong Special Administrative Region (HKSAR).
The main administrative and executive functions of the Hong Kong Government are carried out by
three secretary departments, 12 policy bureaux (consisting of 61 departments and agencies)and otherservices.
(a)Secretaries of Departments
Chief Secretary for Administration
Financial Secretary
Secretary for Justice(b)Directors of Bureaux
Secretary for Transport and Housing
Secretary for Home Affairs
Secretary for Labour and Welfare
Secretary for Financial Services and Treasury
Secretary for Commerce and Economic Development
Secretary for Constitutional and Mainland Affairs
Secretary for Security
Secretary for Education
Secretary for Civil Service
Secretary for Food and Health
Secretary for the Environment
Secretary for Development(c)Other Services
Commissioner of Police
Commissioner of Independent Commission Against Corruption
Commissioner of Customs and Excise
Director of Immigration
Director of Audit
The civil service employed approximately156,000 people,or about 4% ofthe Hong Kong workforce.
Apart from administering public services, its main tasks are to assist the Chief Executive and princiSenior Superintendent of Police, Hong Kong Police Force.

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pals in formulating policies and carrying out decisions.
D. Special Features
Hong Kongʼs free economic system and low tax rate have created a favourable environment for thecityʼ
s development in finance, banking, trade, industry and commerce, real estate, shipping and civil
aviation.
Hong Kong is one of the most densely populated places in the world. The land population density
in mid-2012 stood at 6,620 persons per sq km.
E. Visitors
In the year 2012,Hong Kong registered a record of 48.62 million visitor arrivals. Mainland visitors
reached 34.91 million in 2012 and continued to be the largest source of visitors to Hong Kong.
F. Crimes
In 2012,a total of 75,930 crimes were reported. The overall crime rate was 1,064 per 100,000 persons.

II. HONG KONG POLICE FORCE
A. Command
The Hong Kong Police Force (the Force)is headed by the Commissioner of Police who is responsible to the Chief Executive of the Hong Kong Special Administrative Region for the administrationand operational efficiency of the Force. He is assisted by two Deputy Commissioners. The Deputy
Commissioner of Police (Operations) is responsible for operations, crime and security; whereas the
Deputy Commissioner of Police (Management) is responsible for personnel, training, management
services, finance, administration and planning.
At the end of 2012, the Force had 28,400 regular police officers, 4,700 civilian staff, and 4,500
auxiliary police officers. The police-population ratio in 2012 was 394 regular officers for every 100,000
persons.
B. Vision and Responsibilities
The Forceʼs vision is that ʻ
Hong Kong remains one of the safest and most stable societies in theworldʼ
. The primary responsibilities of the Force are:(a)M aintenance of law and order in the community;(b)Prevention and detection of crime;(c)Road safety;and(d)Operations.
C. Crime Rate and Detection Rate
In 2012, 75,930 crimes were reported. 33,094 cases were detected;representing a detection rate of
43.6%, which was an increase of 1.1% when compared with 42.5% in 2011.
M aintaining a low crime rate and high detection rate can be regarded as one of the indicators of theForceʼ
s performance;but providing protection and support to victims of crime is equally important as
it can affect members of the publicʼ
s confidence in the Force.

III. COOPERATION WITH AUTHORITIES, ORGANIZATIONS AND EXPERTS
IN THE PROTECTION AND SUPPORT OF VICTIMS OF CRIME
Hong Kong accords high importance in providing protection and support to victims of crime witha view to achieving the dual purposes of preventing further crimes and prosecuting offenders. This
support and protection comes in many ways including legislation, administrative measures, multi-

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agency approach, protection and support provided by the Force, other government departments andnon-governmental organizations. This paper talks about cooperation with authorities, organizations
and experts in the protection and support of victims of crime.
A. Working Groups and Committees
Apart from prevention and detection ofcrime,the Force attaches great importance to the protection
and support of victims of crime. The Force has been maintaining partnership with different authorities, organizations and experts to protect the best interest of victims. The following three working
groups and committees are typical illustrations of such multi-agency and cross-sectoral cooperation.
1. Committee on Child Abuse (CCA)The Director of Social Welfare is the Chairperson of the Committee on Child Abuse (CCA). The
CCA comprises 13 representatives from different government departments and non-governmentalorganizations including staff/professionals from the Labour and Welfare Bureau, Department of
Health,Home Affairs Department,Hong Kong Police Force,Hospital Authority,Information Services
Department, Social Welfare Department, Against Child Abuse, End Child Sexual Abuse Foundation,
Hong Kong Council of Social Service,Hong Kong Family Welfare Society and Hong Kong Psychological Society.
The CCA is responsible for monitoring the overall situation of child abuse in Hong Kong. Its termsof reference are:(a)To examine the child abuse problem in Hong Kong in view of current social circumstances;(b)To map out strategies to address the problem of child abuse including prevention, public
education and community participation;(c)To examine ways to facilitate multi-disciplinary collaboration;(d)To formulate new approaches for the handling of child abuse cases;(e)To facilitate and coordinate research studies on child abuse and related subjects;and(f) To monitor the implementation of recommendations.
2. Working Group on Combating Violence (WGCV)The Director of Social Welfare is the Chairperson of Working Group on Combating Violence(WGCV). The WGCV comprises 20 representatives from different government departments andnon-government organizations including staff/professionals from the Labour and Welfare Bureau,
Security Bureau, Department of Justice, Legal Aid Department, Department of Health, Hospital
Authority, Education Bureau, Home Affairs Department, Hong Kong Police Force, Housing Department, Information Services Department, Social Welfare Department, Association Concerning Sexual
Violence Against Women, Caritas ― Hong Kong, Christian Family Service Centre, Harmony House,
Po Leung Kuk, Tung Wah Group of Hospitals, Hong Kong Association for the Survivors of Women
Abuse (Kwan Fook)and Hong Kong Council of Social Service.
The WGCV is responsible for monitoring the overall situation of spouse battering and sexual
violence in Hong Kong. Its terms of reference are:(a)To examine the problem of violence in Hong Kong, with main focus on spouse battering andsexual violence;(b)To map out strategies and approaches in handling the problem, including prevention, public
education, publicity and provision of services;(c)To examine the existing procedures and guidelines on handling the problem and recommend
improvement measures;

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RESOURCE MATERIAL SERIES No. 93(d)To strengthen coordination and cooperation among governmental departments, nongovernmental organizations and professionals in handling and combating the problem;(e)To coordinate statistics and facilitate research studies;and(f) To form task groups or sub-groups to examine specific issues where necessary.
3. Working Group on Elder Abuse (WGEA)
The Assistant Director of Social Welfare (Family and Child Welfare) is the Chairperson of theWorking Group on Elder Abuse (WGEA). The WGEA comprises 9 representatives from different
governmental departments and non-governmental organizations including staff/professionals from theElderly Commission, Labour and Welfare Bureau, Hong Kong Police Force, Department of Health,Social Welfare Department, Hospital Authority, The Hong Kong Council of Social Service, Tertiary
Institute and social service sector.
The WGEA is responsible for examining elder abuse issues and proposing strategies to address the
problem identified. Its terms of reference are:(a)To examine the issue of elder abuse in Hong Kong;(b)To propose strategies, practical measures and an action plan to combat the problem of elder
abuse;and(c)To draw up a framework to implement the action plan.
B. Procedural Guidelines
Working groups and committees provide a common platform for relevant stakeholders to deliberate
and formulate appropriate strategies/measures on victim protection and support. Procedural guidelines are then derived to guide relevant stakeholders in the implementation in order to maximize theeffectiveness of cooperation amongst them. The following are some examples:(a)Procedural Guide for Handling Child Abuse(b)Guide for Handling Intimate Partner Violence Cases(c)Procedural Guidelines for Handling Elder Abuse Case(d)Procedural Guidelines for Handling Adult Sexual Violence Cases
C. Central Information Systems
In order that working groups and committees can map out the profile and characteristics of, andprovide statistical data for reference to professionals providing services on the prevention and handlingof child abuse, elder abuse, domestic violence and sexual violence, three sets of central information
systems were jointly developed by different authorities and organizations, for instance the Social
Welfare Department, Hong Kong Police Force, Hospital Authority, Department of Health, and othernon-governmental organizations. These central information systems are jointly maintained by relevant authorities and organizations. They contain comprehensive information on specific offences andhave been very useful in assisting the work of different working groups and committees.
D. M ulti-disciplinary Case Conference (MDCC)
M ulti-disciplinary Case Conference(MDCC)is an effective multi-disciplinary cooperation model forchild abuse, domestic violence and elder abuse cases. MDCC is most commonly used for child abusecases. It is a forum by which professionals having a major role in handling and investigation of thecase, for instance social welfare officers, the police, parents, guardians, carers, clinical psychologist,
and representatives from Education Department/schools, can share their professional knowledge,
information and concern on the victimʼ
s health, development,functioning,and his/her parents/guardians/carersʼability to ensure safety of the victim.

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Case officers may make reference to the following issues when considering the need for an M DCC:(a)The case involves at least three service units;(b)There are different views between service units and the victim regarding welfare plan;and(c)The case is complicated in nature, e.g. risk of homicide, propensity to violence, etc.
The focus of the MDCC is on protection and welfare of the victim rather than prosecution of theabuser. The M DCC analyzes risks and recommends actions to be taken in relation to the welfare
planning of the victim and his/her family, respecting the statutory obligations of individual membersof the case. In child abuse cases,family perspective is adopted in reviewing safety of all the children
and other members in the household even if concerns are only being expressed about one child.
E. Child Protection Special Investigation Team (CPSIT)
The Child Protection Special Investigation Team (CPSIT) is formed by specially trained police
officers and social workers to conduct joint investigation into cases of suspected child abuse. The
advantage of having a CPSIT is to combine specialist and complementary investigation skills of the
Police and Social Welfare Department in the collection of evidence, which will be admissible incriminal proceedings,prevent further trauma to the child by having to repeat details of the allegation
to different persons, and provide maximum protection and support to children who have been abusedor are at risk.
F. Guardianship Order
The Mental Health Ordinance,Cap. 136 Laws of Hong Kong empowers an independent Guardianship Board (the Board) to conduct hearings in order to make guardianship orders. Social workers,
medical officers and police officers will help persons in need of Guardianship Order if they meet thefollowing criteria.
(a)Adults 18 years old or over;and(b)M entally incapable of making decisions about their personal affairs,financial matters,medical
or dental treatment.
When the victims meet the above criteria, the police shall refer them to the Social Welfare
Department (SWD)for application of the Order. The Order specifies the appointment of a guardian,either private (a family member or friend) or public (Director of Social Welfare), and the powers
conferred to the guardian. In a normal situation, application for guardianship will be proceed only
where effective informal arrangements cannot be made.
Upon the receipt of an application,the Guardianship Board will arrange a date for hearing in which
Board members will examine all the information and evidence collected, interview the subject andrelevant witnesses to reach a decision. The following services may be provided:(a)Support, protect and advocate the best interest of mentally incapacitated adults;(b)Employ guardian to facilitate the management of their finances;(c)Ensure that their needs for service and medical treatment are met;(d)Protect them against abuse, exploitation and neglect;(e)Enhance the quality of care;and(f) Facilitate the resolution for disputes with relatives and services provider.

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G. M ulti-agency Referral M echanisms
In addition to performing the core duties of case investigation and prosecution, the Force also
provides protection and support to victims by utilizing its own resources and/or through close collaboration with other governmental departments and non-governmental organizations (NGOs). Timelyreferral mechanisms have been established between the Force and relevant stakeholders.
The officers-in-charge of the case shall carefully examine each case and make timely referrals. The
Social Welfare Department is one of the Forceʼs partners providing support services to victims. A
cooperation protocol has been established to maximize effectiveness of the collaboration including
acknowledgement of receipt of the referral within seven working days and informing the Police within
one month whether the subject has accepted the service or not.
Specifically for victims of domestic violence,appropriate referrals to the Social Welfare Depatment
and non-governmental organizations will be made to provide victims with familysupport services. The
Social Welfare Department has set up a 24-hour Police Designated Hotline to facilitate police referrals
and arranging emergency services. Victims of domestic violence will also be referred to nongovernment organizations (NGOs) for temporary accommodation services and emotional support
services.
For sexual violence cases, investigation officers would introduce the Social Welfare Departmentʼs
One-stop Service Model, and the CEASE Crisis Centre (CCC)of the Tung Wah Group of Hospitals (aNGO)to victims. If victims select to take up the services,the investigation officers would personallycall the 24-hour Police Designated Hotline to arrange designated social workers to provide immediate
assistance and crisis intervention for victims. Victims can also be referred to services provided byother non-governmental organizations (NGOs),for instance,theʻFamily Planning Association of Hong
Kongʼand ʻRainlilyʼthrough established referral mechanisms for appropriate protection and support
services.
H. One-stop Service M odel
In pursuit of multi-agency and cross-sectoral approach, the Force commits to handle all sexual
abuse cases by providing victims with immediate support services through close collaboration withother departments and non-governmental organizations (NGOs). The One-stop Service Model forsexual abuse cases is adopted under the following principles:(a)Professional service should be made available and easilyaccessible to victims on a 24-hour basis;
and(b)The need for victims to undergo different procedures and to repeat incidents should be kept at
minimum.
When the One-stop Service Model is introduced to sexual violence victims, police officers will
immediately contact the Social Welfare Department (SWD)or non-governmental organizations(NGOs)
for referral. SWD or NGOs provide the following 24-hour outreach services:(a)Arrangement of suitable venue, e.g. hospital for taking statements and conducting forensic
examination;(b)Aftercare medical services at family/gynaecology clinic, e.g.prevention of pregnancy or transmission of disease;(c)Emotional support or counselling service, psychological treatment and temporary accommodation;and(d)Victim will be accompanied throughout the process of investigation and court proceedings.
I. Refuge Centre
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Police will advise victims on the availability of refuge centre. The Police will take the following
actions if victims wish to accept the service:(a)Liaise with the refuge centres for the victims;(b)Provide transport to victims;(c)Keep the location of the refuge centre confidential.
J. Outreach Services
If a victim wishes to be accompanied by a support person whilst giving a statement to the Police,
relatives or friends are allowed as long as no hindrance to investigation is caused. If necessary, thePolice will contact non-governmental organizations(NGOs)for outreach services where social workers
will be arranged to accompany the victims or provide them with counselling service.
K. Overseas Special Assistance
If Hong Kong citizens become victims of crime overseas, particularly in major incidents with asignificant number of victims involved, a cross-departmental rescue team comprising staff of governmental departments and other organizations including members of the Force may be mobilized toattend to victims and their family members. Apart from victim identifications and immigration
matters,psychosocial support service from the Social Welfare Department will be provided to victims
and their family members. These services include:(a)Consultation on psychological support and critical incident stress management services;(b)Crisis intervention;(c)Financial assistance;(d)Operate hotline to assist victimʼ
s family members;and(e)Accompany family members to hold funerals for the deceased.
L. Art Therapy
Counselling services run by religious groups, non-governmental organizations (NGOs)and schools
are provided to children who witnessed domestic violence in their family. During the treatment, thechildren are invited to take part in painting classes. Professionals will assess the childrenʼs condition
through evaluation of their paintings. Advice will be given to parents or social workers so that adesirable counselling and support plan can be worked out.
M .Batterer Intervention Scheme
Special counselling service will be given to batterers through which the potential of repeatedviolence against their intimate partners may be reduced. The Batterer Intervention Scheme helps thebatterers control their use of physical violence and enhance batterersʼemotional control, non-violent
conflict resolution and marital relationship.
One of the programmes under the Batterer Intervention Scheme is a psycho-education programme
known as the Anti-violence Programme(AVP)provided by non-governmental organizations (NGOs)in
conjunction with the Social Welfare Department. The District Court may order the batterer toparticipate in an AVP with a view to seeking a change of his/her attitude. Special counselling andsupport services will be given to batterers with follow-up services to help them re-integrate into theirfamilies and community.

IV. CONCLUSION
Hong Kong is a caring society. It has long been recognized,both internationally and in Hong Kong,that close collaboration amongst stakeholders involved in handling victims, particularly those who

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suffered from abusive offences,will maximize the effectiveness in the protection and support ofvictims
of crime, gain trust and cooperation from victims so that the investigation and prosecution could be
conducted more effectively and efficiently.
As a result oflongstanding multi-agencyand cross-sectoral cooperation amongst different organizations and authorities in providing protection and support to victims of crime, different mechanisms/
measures have been in place to safeguard the interests of victims of crime. These mechanisms/
measures have been working smoothly and are subjected to regular reviews.

Important Notice
All rights, including copyright, in this document are owned and reserved by the Hong
Kong Police Force. Unless prior permission in writing is given by the Commissioner of
Police, you may not use the materials other than for your personal learning and in thecourse of your official duty.

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JUSTICE FOR VICTIM S OF CRIME
Dr. Gerd Ferdinand Kirchhoff

I. INTRODUCTION
Victims of crime and abuse of power should be treated with compassion and respect for theirdignity. This demands the 1985 UN Declaration of Basic Principles of Justice for Victims of Crime andAbuse of Power (General Assembly Resolution 40/35 (1985)). Fortunately,this UNAFEI seminar gives
opportunity to recall the content of the Declaration (see II). We will together look at the impact ofcrime on victims (III)and at victim needs (IV). Much has been done to “
implement”the Declaration,that is:to translate it into national legislation of UN member states. We will deal with the current
situation and with problems that crime victims face at every stage of the criminal justice system (IV).
What has been done,has been criticized ― for victim activists,reforms are too weak minded,too slow
and not extensive enough ― for more conservative policy makers they are already too extensive andtoo much in contrast to customary and cherished convictions. Often the interest in the smooth runningof criminal proceedings have been seen as the main objective ofreforms,not increased compassion andrespect for the dignity of victims.

II. THE 1985 UN DECLARATION
A. From 1985 to 2013
In 1983, the Executive Committee of the World Society of Victimology adopted a document whichbecame the core of the 1985 UN Declaration. Originally a document dealing only with crime victims,
the scope enlarged to victims of abuse of power. The fathers of the Declaration, Irvin Waller (aCanadian professor of sociology), LeRoy Lamborn, (professor of criminal procedure in USA) were
couched ― like the whole process within the UN system ― by the unforgotten Irene Melup (victim
expert from the Office of the Secretary General). The activities in the early eighties opened the victim
issue to international political debate, and it was mainly the common law wealth and the American
criminal justice systems, which dominated the debate. The inclusion of “
abuse of power”was
dangerous in the time of the cold war in 1985,when the members of the capitalist camp and membersof the communist camp mutually accused each other of“
abuses of power”and both accused the South
African apartheid regime. In summer 1985 in M ilanʼ
s UN Crime Congress,the two superpowers ceased
their opposition to the Declaration and finally, in November, the General Assembly unanimously
decided on it. It was now up to the member states to act, to implement the Declaration, to translate
it into national legislation.
M aybe, the superpowers realized that this document was not a convention which could have thechance to become binding ― a UN Declaration is not binding at all. But one should not underestimate
this Declaration ― it radiates a strong moral obligation, despite the legally non-binding character.
That 29 years later UNAFEI conducts this seminar, is an effect of this Declaration.
15 years ago, in 1999, the UNODC published a “Handbook on the Use and Application of the 1985
Declaration”, a work guided by Jan van Dijk, at that time President of the World Society ofVictimology1.
In 2000,in the M ontreal WSV Symposium,we celebrated the 15 year anniversaryofthe Declaration,
Prof. Dr. jur., Professor of Victimology, Graduate School of Victimology, Tokiwa University Mito, Japan
1As Secretary General of the World Society of Victimology,I was to participate on the work. But I could not participate,recovering in Mexico Ciudad from an unpleasant meeting with taxi robbers.

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rather critical about the state of implementation. Member states were not able or willing to implement
this declaration. One problem was the title of the declaration:it was easier to talk about “Victim
Rights”and about “Justice for Victims”. And the newest development:End of last year, the UNODC
convened a working group on a review of the 1999 handbook. This group finalized its work and the
new Handbook “Justice for Victims”will be available soon. This handbook is,like its predecessor,anexhibition, a list of offers from which interested member states could choose.
In 2008, The Declaration was reviewed by a team of experts in the Tokiwa International
Victimology Institute and the Tilburg International Victimology Institute2.This 4th Symposium of the
TIVI 2008 led the World Society of Victimology to send representatives to the 10th UN Congress in
Salvador,Brazil. The final“Salvador Declaration on Comprehensive Strategies for Global Challenges:
3 on 12
Crime Prevention and Criminal Justice Systems and Their Development in a Changing World”
occasions uses the word “victims”or “
victimization”(prevent victimization including revictimization,
protection and assistance to victims, child victims, victims of trafficking and a victim centeredapproach with full respect for the human rights of victims of trafficking). Besides the already known
issues, two new special victimizations appear, in the wake of two new conventions:child victims andvictims of human trafficking.
B. Principles of Justice
While victims are around as long as there is crime, legislation on crime and criminals has been ismuch more detailed and obviously much more important for the legislator and administrators thanvictims. I have explained this with the Divided Territory Theorem4:Criminal justice always was theexercise of power of the rulers against the subordinates who endangered by their crime the position of
the sovereigns. The resulting Criminal Justice System was a vertical system:power was used from thestate to the offender. The eighteenth and nineteenth centuries were busy with humanizing criminal
justice ― a task that is still unfinished!The concept of“balance”was introduced,the balance between
the power of the state (oppressing the offender)on the one side and on the other side,the human rightsof the offender. For the new upcoming powers in society the old criminal justice which did not carefor offenders rights, was too dangerous. Today, we often hear about “Justice for Victims”. In theeighties of last century,it became fashionable to complain about the imbalance in criminal justice (USPresidentʼ
s Task Force on Victims of Crime5). “
The system is out of balance”was the slogan. It wassaid to be out of balance since it granted offenders many rights and no rights to the victims. There isindeed an unequal distribution of rights. Speaking of the “balance between offenders and victims”incriminal procedure is too simplistic and it contains too much political rhetoric. The balance in criminal
justice is between state and offender, not offender and victim. The latter is a useful argument in thepolitical fight for influence and power, for sure ― and this is why we allow victim activists to talkabout “Victim Rights”and about “Justice for Victims”― but not in a balanced discussion between
responsible criminal lawyers and the lawyers who seek to avoid that victims are harmed by criminal
procedure.
To understand this,we have to discuss the topic of secondary victimization. We have to understand
why the avoidance of secondary victimization is such a central goal. We have to see that we move ina field of tension between different concepts of criminal law. Criminal justice and the application of
criminal law is a means of social control. It is a formal offender oriented social control by repressionof the offender, of course ideally under strict observation of human rights of offenders. The topic in
criminal justice is traditionally social control by repression of offenders.
Obviously, the style of social control is in dispute. In postmodern times it is no wonder that there

2Dussich, J.P.J. and M undy, K. (eds.) (2009): Raising the Global Standards for Victims: The Proposed Convention on

Justice for Victims of Crime and Abuse of Power. Proceedings of the 4th Symposium of the Tokiwa International
Victimology Institute. Tokyo (Seibundo), Japan.
3 http://www.unodc.org/documents/crime-congress/12th-Crime-Congress/Documents/Salvador Declaration/Salvador
Declaration E.pdf>.
4Kirchhoff,G.F.(2005)What is Victimology?Tokiwa International Victimology Institute Monograph Series No.1.Tokyo(Seibundo)p.46
5US Presidentʼ
s Task Force on Victims of Crime, Final Report. Washington D.C. 1982.

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is a heated discussion about the right of the state to determine the way of this formal social control.
The vivid and passionate discussion between the poles of repressive justice and restorative justice isa symptom for this. Regardless where one stands, in the camp of restorative justice, in the camp oftraditional justice or with one leg in each of the camps: Victims have a right to be unharmed bycriminal proceedings. Victims have suffered from offenders ― that is enough. We have to be clear:
Justice can only be achieved if victims do not suffer more than absolutely necessary from the criminal
justice system. Victimologists argue:the protection of victims from harm is not realized radicallyenough.
The counterweight of this right is the obligation of the state to arrange the criminal proceedings
correspondingly. This is the center of the discussion on “
avoiding secondary victimization”. This isthe center of the 1985 Declaration. The discussion is about victim needs, about victimsʼposition incriminal proceedings, about what harm is needed and unavoidable, and about what has to be done tokeep up the social control that is desired and necessary. On the other side there is the position of more
victim-friendly discussants ― observing the right not to be secondarily victimized ― and on the otherside that offenders rights are not curtailed,“
without prejudice to the accused”(Declaration 1985 A nr.
4 b). I believe that in 2014 we have to be even more pronounced:
In some situations,the right of the state to criminal justice has to step behind the right of the victim
to be unharmed:6 I would be more radical in the demands:If victims are likely to suffer, the state is
obliged to invent procedures to alleviate the burden,even ifthis means that the state has to refrain from
criminal prosecution.
C. A Summary of the Content of the Declaration and an Outlook to a New Handbook
The Declaration contains the following “principles of Justice”which are commonly called “
victimrights”. These are the “
victim rights”we might find in the 1985 Declaration:
These are the right
1. to be treated with compassion and respect for their dignity (A 4)
2. to access to justice (A 4)
3. to prompt redress (A 4)
4. to procedures ― formal or informal― that are fair,expeditious,inexpensive and accessible(A5)5. to receive informationa. procedure, scope, timing, progress of the procedure and the disposition (A 6 a)b. role of the victims (A 6 a)c. availability of redress possibilities (A 5 sentence 2)d. about social assistance (A 15 to 17)
6. to allow the views and concerns of victims to be presented and considered at appropriate stagesof the proceedings where their personal interests are affected,without prejudice to the accused(A 6 b)7. to provision of proper assistance to victims throughout the legal process (A 6 c and 15)
8. to minimal inconvenience (A 6 d)
6An example of the priority of protection of victims before state prosecution is seen in the institution of the childinterrogator in Israel: Sternberg, K.J., Lamb, M .E. (1996): Child Sexual Abuse Investigations in Israel: Evaluating
Innovative Practices. In:Bottoms, B. & Goodman, G.:, Thousand Oaks (Sage)p.62-77.

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9. to protection of their privacy (A 6 d)
10.to be safe from intimidation and retaliation (family members and witnesses on their behalf)(A 6 d)11.to speedy trial, avoiding unnecessary delays (A 6 d)
12.to access to informal mechanisms of dispute resolutions including mediation, arbitration andcustomary justice (A 7)
13.to restitution:offenders should make fair restitution,restitution as a sentencing option ,special
mention of environmental harm (A 8 -10)
14.to compensation by the state (A 12 and 13)
15.to general (social)victim assistance (three sub-articles)(A 14 to 17).
If we use the word “rights”to describe “desirable states of affairs”,then the Declaration deals withvictim rights.
The Declaration turns to Member States and to their government ― victims are of interest as thematter of member state legislation. In the center of the matter is “Avoidance of Secondary Victimization”― not the “rights of victims”.
The “nude”norms are too abstract,and therefore the UNODC tried to give more concrete explanations of what was really meant by this Declaration. This is done by “Guides for Practitioners”or by“Handbooks”.
The most recent “Handbook on Justice for Victims”was drafted during the year 2013 by a groupof experts convened by the UNDOC in Vienna. The group finished the work in December 2013. The“Handbook”is ready for publication in 2014.
This Handbook will cover these topics:
1. Description of crisis and trauma that victims of crime and abuse of power may suffer, PTSD.
2. Other consequences of victimization
3. Victims that are ignored or dismissed by the public (children and elderly)
4. Victims of international crimes (cybercrime, cross-border human trafficking)
5. Formal criminal justice processes and victim rights in affluent countries
6. Emergent victim services program:establishing, sustaining and expanding programs
7. Helpful groups and professionals for victims
8. Remedies:Restitution and Compensation
9. Issues involved in restorative justice and crime prevention
10.Promising practices in implementing the legislation of victim rights
11.Key examples of international cooperation and collaboration
12.Consequences for those working with victims, methods for maintaining personal health (for110156TH INTERNATIONAL SENIOR SEM INAR
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example avoidance of burnout).
The draft Handbook contains 184 pages of A4 text. It is a wealth of information about what canbe done for victims and what has been tried successfully. This UNODC Handbook on Justice forVictims 2014 is an object of great expectations.

III. THE IMPACTS OF CRIME ON VICTIMS
A. General Impacts
What is the impact of crime on victims? For analytical purposes we distinguish: Victimizationmeans experience of damage (diminution of resources). Damage is experienced in three dimensions:emotional, physical and financial.
For many lawyers, the consequences would be more plausible in a reversed sequence: financial,physical and finally the emotional damage. Jurists are used to handle financial consequences for sure,most conflicts in civil law deal with finances. The whole area of civil laws,tax laws,social security
and welfare laws deal with finances. This is the field lawyers feel most competent in.
In reality we know that these analytical categories are neither mutually exclusive nor do they haveclear boundaries:emotional burden can very likely express itself in headaches,muscle aches,tensions
and other physical consequences. These transform easily in financial damages if, for example, aphysician must be consulted or medicine must be bought. There is no clear borderline between
emotional and physical damage. Therefore I will give up this introductory static scheme and come toa more dynamic one.
B. Victimizations as Invasions of the Self
The new Handbook says that the most important element in dealing with victims of crime is tounderstand the nature of crisis and trauma. It then explains how to understand scientifically trauma-reactions. The Handbook deals with these topics:Normal equilibrium and stress,the brain structure,communications of the brain,brain functions,traumatic thinking (the thought processes during experience of trauma), normal memory processes, traumatic memory as compared to narrative memory,crisis reactions, traumatic reactions, uncomplicated PTSD and finally complicated PTSD. This is
described in 26 pages,highly concentrated and not easy to understand. The difficulty is partly due tothe problem itself ― the emotional impacts of crime for victims are a complicated matter;in addition
the way the brain processes trauma information is not well understood7, let alone easily explained8.
Victimizations are invasions into the self of the victim. That formula was developed some forty
years ago. I find it still very useful. Invasions into the self of the victim.Of course this is a parable,
an allegory, a picture:Behind this formula, there we find a specific image of men:
Imagine an onion:here is the outer peel, brown, tough, hard though fragile. Remove the peel ― adifferent layer appears,and removing layer after layer,you reach the soft center. Penetration is easierand easier the more you come to the center,to the heart of the onion. That stands for the heart of theperson, the “self”of the victim, the center of its existence.
Victimizations are invasions into the self of the victim, they are like needles that penetrate theonion.
We can employ this allegory to demonstrate different intensities or different severities of victimization. M ore on the outer skin we have victimizations by,for example,taking away from us items which
are not valuable and easy to replace. Different, if the item was emotionally valuable to you:if thestolen ring was given to you as a sign of love by your partner. Then the invasion goes deeper andcannot be brushed away like a flurry of dust from your jacket.

7See Winkel, F.W. (2007)Posttraumatic Anger. Nijmwegen (Welp).
8Foa, E., Hembree, E. & Olasov Rothbaum, B.:Prolonged Exposure Therapy for PTSD. Oxford 2007.

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Assaults:usually victims do not realize how easy it is to be hit. It would take a slight backhand
move of your hand to injure the face of your neighbor. Of course we are not aware how vulnerable weare. This victimization would invade a completely unsuspecting victim. And would the pain be themain dimension of victimization?Or the humiliation to be treated in such a disrespectful way?Publicly?
In an international UNAFEI conference?The feeling of surprise, of being unexpectedly harmed, told
how vulnerable you are ― even in this setting, and that your position of a leader in the homelandcriminal justice system does not help you at all. You feel enraged, ashamed, deeply offended,humiliated, bewildered, you turn maybe to the chairperson for help
In the oral presentation there follows a description of a victimization the author experienced
himself.
I have provided a detailed description to demonstrate to you what this robbery meant. The
financial loss was not important. The emotional damage I experienced was the central event. That
this would be classified as robbery and consequently be punished was unimportant to me in the momentof the invasion. Loss of physical integrity, experience of fear and despair, of helplessness, of being
isolated and completely alone, of pain, of humiliation that some complete strangers treated me withsuch disrespect to what?To my person,to my identity,that they invaded me,that they brought me tosuch childish reactions like inventing numbers which I knew would bring only short-time relief, thehumiliating feeling that I owed my life to the leader of this gang who “allowed me”to get away from
them
Victimizations are invasions into the self ofthe victim. Burglaryis not alone(and often to the lesser
extent)a property victimization ― The victimʼ
s feeling of security is shattered. Victims realize thatthey sleep safely behind very thin and fragile glass windows of their bedroom. Humans tell themselves
permanently stories about the safety of their existence.
And finally, in sexual victimizations, in cases of being groped and sexually invaded, victims
experience that they are completely helpless, that they can be sexually attacked and invaded at any
moment. Victims of rape tell us that they felt that their life was endangered,by this forceful closenessof invading actions of another person who invades not only the body forcefully but invades a part ofvictimʼs personality that,for normal social interactions,must be kept un-invaded,undisturbed. Can welive with the feeling that we are open for everyoneʼs sexual invasion?Of course we cannot.
C. Understanding Crisis
Victimizations are invasions into the self of the victim. That does not have to be demonstrated incases of physical and sexual assault, in cases of torture, in cases in which the victims are forced toendure invasions into their self. It is self-evident in cases of homicide.
In all victimizations the emotional damage is very important ― that a human being treated thevictim without respect ― let alone the physical and financial consequences. Even in cases of investment fraud the emotional damage is evident ― the humiliation felt by the victim that someone treatedthe victim in this way,taught him a lesson about his own financial credulity,dupability,gullibility andoutright stupidity.
Victimizations tell the victim that he surrounded himself with stories about his own independence,
intelligence, smartness, about his own ability to control, about his power to determine what is goingon in his personal life ― these stories are like protective walls,protective shields we construct against
our own vulnerability. People nurture illusions about the power of the criminal justice system and its
organs including police to protect them, to grant that life is worth being lived. It is easy to imagine
that victims of stalking lose all their hopes to ever live safely again.
Victimizations mean the forceful experience ofthe destruction ofprotective stories we tell ourselves
about us and about the world we live in. We need these stories to stay alive. If we delve too deep into
this knowledge, we might kill ourselves. Life is not worth living anymore. Every week we readsomething like this:112

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A 12-year-old girl who was killed after she walked onto the tracks and was hit by a bullet train
in Tendo, Yamagata Prefecture, on Jan 7, left a note in which she hinted she had been bullied
at school.9“Bullying”is a cute way of denying the real harm and the revolting insensitivity of school to theemotional well-being of their students.
The impact of this invasion on victims is crisis.
Crises are situations of experienced instability,of insecurity. They are generated by the experiencethat the normal crisis management functions are blocked. The experience of blockage causes anxiety
and stress. The usual skill, power, capability to handle difficult situations, is gone. The coping
resources cannot be activated. The new Handbook describes very well how that functions
physiologically.
Victims are suddenly confronted with a situation that does not make sense to them. They reactwithinsecurity,
what is going on here?
confusion
I need an explanation to understand what is happening!
disorientation
where am I? why am I here?
surpriseThat is completely new and unexpected!
Despair
I cannot see any way to get out of here!
Cluelessness
How could this happen?
Anger
about oneself,about the people who usually are supposed to assist and help,
family members, spouses, but as well police, prosecutors and the court, thewhole state administration.
Self-Blaming
If I would not have done this and this!
Blaming of others
Loss of control andpowerlessness
They cannot comprehend what happened. They do not know how to respond.
Shock
Victims may be completely surprised, numbed,
Disbelief
this cannot be true!
DenialNo, this is not happening
Terrorcomplete shock and confusion and anxiety
resulting in frozen
frightnumbness, no reaction at all, frozen, immobilization,
stressresulting from impossibility to fight or to escape, another consequence ofhyper-arousal
There is a certain pattern in responses:
Fear is caused by the loss of autonomy and control and by the loss of the ability to face situations
by planning,“a uniquely human characteristic. The threat that pain will be inflicted can trigger fears
more intensely than the immediate sensation of pain. Anger often results from fear. Anger might bedirected against an offender or another person held responsible for a traumatic event. It may displace
to supernatural powers (God, fate), family members, social institutions against oneself and it may
generalize focusing not only on the one who offended but might be directed against the whole grouphe stands for. Related to anger is the desire for revenge.
The thirst for revenge is an enhancement of anger directed at classes of individuals. It is notuncommon. People do not know how to handle anger. It leaves people empty,bitter,morallyin conflictand painfully in dissonance with what victims or other survivors of a catastrophe believe to be an
ethically good reaction. Social reaction to anger is often disgust and rejection. Victimologists knowthat victims quite often are not at all vengeful. That is not plausible for people who would like tobelieve that victims turn to the criminal justice system for revenge. Victims are in a situation where
9 Japan Today, January 7, 2014.

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they look for the meaning of what happened, and of course they seek protection in the system that istaught to them as “taking care of their needs”. Victims feel themselves confronted with a situation that
does not make sense to them. Their understandable reaction is that they seek protection. They want
to feel safe.
In this confusion,victims try to remember what happened. They have only scattered memories of
the traumatic event. They cannot cohesively reconstruct this event. This scattered memory is a signof PTSD and is accessible through cognitive behavioral therapy (and not in a police hearing or in anoral court hearing, see Foa et al. 2007).The confusion becomes frustration and despair when victims
think they should remember or could remember when they only tried. It is obvious how important thisfact is for police, prosecutor and judge.
Self-blame: Victims often think they are guilty of something. They blame themselves. Victim
self-blame comes in two forms, blaming the behavior of oneself (If I would not have done this!) andblaming the character (I am the kind of person who attracts these events; It is me and my individuality).
Self-blame goes hand in hand often with shame. Shame is often exacerbated by the reaction of thesocial environment.
D. Secondary Victimization
Not only victims react. Their social environment reacts too. These reactions can help the victim
to overcome the emotional impacts of the victimization. But there are good chances that thesereactions are not helping and that they are damaging. Victims are confronted with reactions of thesocial environment that do not help them. The damage by these reactions is called “secondary
victimization”.
Reactions may intensify the feeling of powerlessness,lack ofself-esteem,lack ofconfidence,the lossof self-control,increased fearfulness and vulnerability,damage in the self-esteem ofvictims. Theymay
intensify the feeling to be left alone, having no control, leaving no hope for the future.
Secondary victimization refers to the victimization that occurs through responses ofinstitutions andindividuals to the victim. Institutionalized secondary victimization is most apparent within thecriminal justice system. At times,per the Handbook,it amounts to a complete denial of human rights
to victims of a particular cultural group,of classes or of a particular gender. It amounts to a refusal
to recognize their experience as criminal victimization. An example of a complete lack of social
recognition of victimization is the family of the offender after sentencing.
Another example for this might be the evaluation of violence against children ― In Sweden acriminalized event, in Germany an illegal act with family law, civil law and administrative law
consequences. In South Africa,for example,parents and teachers have the inherent power of chastisement. The South African courts first declared the imposition of corporal punishment by courts
unconstitutional ― before this,the victims of corporal punishment were not recognized (till 1995)while
in 1996 the South African School Act declared it criminal for teachers to punish corporally. The total
abolition of the power to resort to corporal punishment is “probably”inevitable (SAfr Crim Law p.
111).
Whether parents have the right to disciplinary chastisement or whether childrenʼ
s rights prohibit
this is victimologically irrelevant:it is the suffering of the victim,and basically it is not important fromthe victimʼ
s perspective whether beatings are applied under observation of the limits of the law orwhether these limits are crossed.
Secondary victimization is characterized by a loss of trust. This loss of trust explains why victims
often show dramatic changes which we normally do not expect ― they move out of their apartment,
they change their address,they move into another city after they have been stalked. They change theschool after being bullied by their schoolmates and teachers did not intervene properly. Marriages
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changed. We have disturbing news about victims ofrape who after reporting to police were bullied andharassed by their peers and by adult members of the community who blamed the victims so much thatvictims committed suicide or moved out of the neighborhood, into a new city and often that was notenough. The victims killed themselves or tried to do so. We have disturbing news about harassmentof rape victims on the Internet.
The whole process of criminal investigation and trial may cause secondary victimization, frominvestigation through decision to prosecute or not, the trial itself and the sentencing to the possible
release. It is not so much that there are difficulties to balance the rights of the victim with the rightsof the offenders, it is more so that personnel are unaware of the possibility that their decisions may
victimize, and they act without taking into account the perspective of the victim.

Victims of abuse of power have particular difficulties in gaining recognition as victims. That canbe explained by the fact that the power under which they suffer, power that is created to protect
citizens, is here used to damage, pertains not only to abuses but pertains to the whole apparatus thatis involved in recognizing victims, like the press, the criminal justice system, the majority of the
population. Often,when the abuser is the state itself,supporting groups come from outside the country.
International NGOs have been useful in some countries in pursuing cases of victimization outside thecountry. The letter action of Amnesty International is a good example for this.
I deal here with the impacts of normal victimization on victims. These are impacts that can beobserved in run-of-the-mill court proceedings. They can be seen every day in the criminal justicesystems of the countries represented here.
Of course they are more concentrated and visible in cases of mass victimization armed conflicts or
genocide. There is a worldwide campaign against violence against women.
Another topic are the victims of hate crimes: prejudice against persons due to race. Culture or
ethnicity are contributors to violence and to mistreatment in the justice system. Victims not onlysufferfrom the emotional wounds caused by the violence but also from being categorized as the “others”―
other people which do not really belong to us. As a result,some countries have responded with passing
new “hate crimes”laws involving enhanced punishments for crimes motivated by prejudice. This isoften the reaction of legislators:to invent new crimes and to increase the upper or the lower limit ofpunishment. There is no evidence that this really produces less victimization. The victimologist
recognizes:victimizations are used to justify a stricter social control of offenders. This is done toenhance the reputation of the justice system, not to serve victims.
The impact on victims includes the physical consequences and the financial consequences ofvictimization. There is simply not enough room available in this paper to deal with the two consequences with the necessary intensity. This does not mean to downplay the role of these victimizations.
It must be emphasized that in most if not all cases of physical victimizations (assaults, injuries) andfinancial victimizations (the so called property crimes), there is an emotional impact on victims andthat is often, even in cases where we do not expect it, a very important part of the victimization.

IV. WHAT VICTIMS NEED
In victimology,there is often the talk about “victim needs”. Victims need recognition that they are
victimized. They need restoration of their damages. They need a social environment (individuals,
institutions and communities)that is aware ofsecondaryvictimization. Theyneed an environment thattries to avoid secondary victimization as much as possible. It is theoretically very simple:the damages
they suffered must not be intensified.
The answer to the question “
What Victims Need”is quite complicated. Victims have emotional
needs ― for they had emotional damages. They have physical needs if they are physically impaired.
They have financial needs.

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V. CURRENT SITUATION AND PROBLEMS FOR VICTIMS AT EVERY STAGE OF
THE CRIMINAL JUSTICE SYSTEM
A. The Investigative Phase:Police and Victims
Victims need attention and care. That is difficult to deliver in the criminal justice system. Why?
The whole criminal justice system is part of the system of social control. In a famous sentence,ahigh Japanese court said that Justice is in public interest, not in the interest of the victim. That
sentence electrified the supporters of victims. In a rather short time,they collected more than 550,000
signatures,requesting the Prime M inister to take better care of and respect the victims of crime. Thatchanged the political climate in Japan. Since 2005, Japan has revamped its justice system.
For traditionally educated lawyers, criminal law is the matter of the state against the offender,
applied in a clearly vertical system of social control. The victim has to serve as evidence. But today
there are different demands on this system.
Police need training to improve their attitude in accepting the information of victims about crimes.
M odern police are service oriented. Police have to be polite. They have to take the victims seriously
and to do this,they must be aware of their emotional situation. That is difficult for police. They deal
professionally with crime. For them,a crime story is one story in an endless chain of repeated stories.
They deal with these events as everyday events. For victims this is completely different:For them,victimization is usually a one-time event, an exceptional situation. This is obviously so in case ofburglary,a very upsetting event,a deep invasion into the self of victims. Feelings of security,of safe
living,of“
my home is my castle”― all these shields with which we surround ourselves,are destroyed.
Victims do not get angry with police if the offender is not found ― usually about 85% of reported
burglaries are not cleared by police. Nevertheless, people were content with their police ― since theofficer was polite, caring, came out to them,offered a listening ear and was generally understanding.
Victims do not know the criminal justice system. Theydo not know what happens with their report.
They are in a strange environment. They are afraid and nervous. They have difficulties to reconstruct
the event.
Taking the emotional situation of victims seriously:that means that the first approach to the crime
scene, home visits of victims, are performed without using police cars and uniformed policemen ―neighbors are watching and victims are afraid of their reaction. The use of special limousines forquestioning victims at crime scenes is needed. In police stations, there are installed special victim
suites where victims can be interrogated and questioned in a safe environment,away from interferenceby other police performances done in a larger multi-purpose office.
Taking the emotional and social situation seriously― in Brazil since 1985 there are 475 women-only
police stations where women feel better served than in the usual police stations. The Korean police has
specialized units to serve the victims of sexual assaults ― one stop sexual assault centers. There arenurses on duty, evidence can be taken in a way that respects human dignity of victims,respects their
feeling of shame and their needs for privacy. Social workers and or clinical psychologists interact withthe victims.
It is necessary for the police to protect the identity of victims ― no press release with the names ofvictims!Respect for the dignity of victims means to take their fears seriously:victims must be allowed
to bring trustworthy attendants to hearings. It must be considered to allow a lawyer on the side of thevictim. There are many opportunities to help victims in the difficult situation during the investigation:
Japan has very successfully used experienced retired policemen and prosecutors to give information,
to provide escort services to hospitals, to assist in situations where personal protection is needed.
There are countless situations where victims need counselling and information.
B. The Trial Phase
1. Waiting Rooms for Victims and Services for Victims in the Court
Victims suffer if they have to wait ― together with the defendant!― in front of the courtroom.

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Since 1980 the international victimological scene is informed about the need for special waiting areas
in courts.10 It took twenty more years until the first victim waiting room was installed in a court inGermany. It was so difficult to convince judges and the administration of justice that such a serviceis needed. The professionals in the court took it almost as a personal offence that there was thesuspicion that they would not take care of obvious needs of victims. It was simply that judges andprosecutors were not aware of the fears of victims. It is not enough to have these waiting rooms where
victims can wait separated from the offender,it is very much needed to have social workers attending
the waiting victims and witnesses. In Germany, there are regular training courses for “Professional
Caretakers of Victims and Witnesses”in the court houses. These professionals give information. They
provide guidance, They can explain what victims can expect in the courtroom. They guide victims
through the physical appearance of a courtroom. Judges and prosecutors had to learn to think about
these services as positive― of course they thought that it is not so difficult to serve as witnesses. They
simply forgot how intense the fear and the nervousness and the insecurity of witnesses in front of thecourt are!
Nils Christie11 has convincingly described that courts ― for non-insiders ― are a “jungle”. Even for
lawyers it is very difficult to find the physical way through this jungle, to find the right courtroom
where the case is heard. It is even more so for the material orientation. For people working in criminal
justice, proceedings and routines are self-understood and daily experience. But all these routines area“terra incognita”for victims,frightening,confusing,disorienting. His ingenious essay“Conflicts as
Property”can be used as a primer in the need of victim-witness orientation services in the courtroom.
Christie shows that the traditional criminal justice system serves its own interests. The smooth runningof criminal proceedings and the ease to achieve convictions is often more important for legislators than
the service to victims.
2. Protection of Special “
Vulnerable”Victims
Occasionally it is needed to protect witnesses/victims by the use of screens, by closed circuit TV,
by video recording of the testimony. That means investment of money and technical training, but itmeans primarily the development of an awareness of the persons working in the criminal justicesystem, of judges and prosecutors and lawyers.
3. Victim Participation
The Declaration demands to allow the views and concerns of victims to be presented and considered
at appropriate stages of the proceedings where their personal interests are affected,without prejudice
for the accused and consistent with the relevant national criminal justice systems (D 6 (b)).
This blends into the discussion about “victim participation”.Ifwe read the declaration veryexactly,
participation is a very broad interpretation:6 (d)gives the right for victim input if national legislation
already provides this possibility,and this input ― of course,why else is it given?― must be consideredby the court.
Discussing “
victim participation”is unavoidable for any criminal justice system ― after the seminal
analysis of Nils Christie. He analyzed the need for involvement of victims in finding the solution of
the conflict that he described as a “propertyofthe lawyers”. He provoked with his thesis:lawyers havestolen the conflict from victims and offenders. His vision of “giving the conflict back to the owners”― to the victims and the offenders ― has opened the way of the traditional vertical system to include
more possibilities of the victim to participate in the vertical system. It was like opening the gate of thevertical system to allow more meaningful elements of horizontal victim oriented solutions.
4. Victim Impact Statement and Side Prosecution
Criminal justice systems have developed the institution of the “Victim Impact Statement”to enable
the victim to play a more active role in the proceedings. The lack of active role was seen as a major
deficit ofexisting systems. It is almost self-understood that these systems were introduced without ever
empirically researching whether victims really want such a position. Different criminal justice systems
10 Viano,E.:Zeugenwarteraeume. In Schneider,H.J.(ed.)1980 Opfer in Internationaler Persepektive. Berlin (de Gruyter).
11 Christie, N.:Conflicts as Property. In British Journal of Criminology, 1977 (17)no. 1, p.115.

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may share one experience ― that victims are not so much interested in being involved in the trial.
It is a very important field. In the traditional criminal justice systems ― as they developed inEurope in the nineteenth century and as they developed the criminal justice systems in the world,thevictim had to answer questions. The judge determined basically what “belonged to the matter”― allwhat did not belong to the matter,was superfluous and wrong. That silenced at least those victims whowanted to tell “
their”stories. This “silencing”is interpreted as not taking victims seriously. It is an
example that structural constraints are faced by the victim. In reality, the limitations of the victim
impact statement cause new problems. These problems are avoided if the system gives to the victim
the right of full participation like it is done in the German system of“Side Prosecution”(Nebenklage).
Some jurisdictions have allowed the victim to act as a “side prosecutor”.In these cases,the victim
has the right ― enforceable ― to be admitted as “side prosecutor”, sharing the position of theprosecutor in equal rights. It is highly interesting for victims, for example, of rape to be represented
during the whole court proceeding. It is highly interesting for victims to not only react to questions but
to be able to ask questions. This institution is very well developed in Germany. At times, theinstitution was attacked. Experts in criminal procedure demanded its abolition:it was seen as a private“instrument of revenge”.Nowadays,it is a very welcome shield against the demand of victim activists
for more influence on the proceedings. Contrary what one would expect, in Germany, the sideprosecutor is usually quite passive ― the institution is used to prepare the civil law case against theoffender. Victims and their representatives are not so much interested in demanding higher punishment― that even would taint most probably the perception of the court and give extra ammunition to thedefence lawyer. I therefore will not repeat the arguments that are usually made in favor of sideprosecution as an instrument to give the victim an opportunity to introduce its viewpoints into thecriminal proceedings. “Nebenklage”is an institution that is strictly ruled by principles of criminal
procedure. Therefore it does not compare to the partie civile in French influenced legal systems.
5. Refund for Victim/Witnesses
Victims need to be refunded for the costs they have to face when they are called as witnesses.
If the accused is sentenced,he has to pay the costs ― if he is too poor,then the victim has to pay thesecosts. It does not need recourse to the Declaration and to principles of compassionate treatment to
expect that the state alleviates the burden of the victim. In any case,victims need to be refunded fortheir costs of the participation in the traditional criminal proceedings when they have to serve as
witnesses. The refundable costs include:―

Refund for transportation costs to the courthouse(limited to the costs ofpublic transportation)
for public transportation―

Refund for parking fees―

Refund for loss of income― usually with a cap on the amount of hours and the value for single
hour―

Refund for household assistance―

Refund for food and hotel―

Covering the costs for necessary support services (blind persons, handicapped victims)―

Cost for child care

6. Review of the Decision of the Prosecutor
Victims often have the right to seek a review ofthe decision ofthe prosecutor not to prosecute. This
right is not given in most jurisdictions. Especially in systems who use the system of plea bargaining
extensively ― in the USA to 96% of the indictable offences ― it is difficult to imagine installing thisright.

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A full revision is possible in Germany:If the prosecutor wants to drop a case,he has to inform thevictim. The victim can administratively appeal. That has the consequence that now the deciding
prosecutor has to report to the Chief State Prosecutor who makes a decision ― either in favor of thevictim or in favor of the decision to drop the case. In this case, the victim can ― with the help of alawyer ― appeal to the highest court in the state which then will decide.
There are many possibilities to subject the prosecutor to a kind of scrutiny if they do not want toprosecute. In Japan, there is a special administrative proceeding. It makes it possible to review thedecisions of the prosecutor and finally is able to force prosecutors to prosecute. The value of thesekinds of possibilities is that prosecutorʼs decisions are reviewable from outside the prosecution system― within limits. For victims, it at least offers the theoretical possibility that prosecutorial decisions
are reviewed. A problem is that there are only decisions possible to prosecute or not to prosecute.
M uch more fruitful for victims would be not to seek punishment but to seek peaceful solutions in thedimensions of restorative solutions.
7. Private Prosecution
In a limited scope of crimes, some jurisdictions introduced “
private prosecution”. In Germany theprosecutor in some cases can recommend to the victim to act as private prosecutor. Private prosecution means that the victim has all the rights of a prosecutor against the defendant. This institution isquite disputed among the legal profession:There is an enforced mediation procedure and victims canonly prosecute when there is a certificate of a fruitless mediation attempt. 50% of all these cases inthe biggest state of Germany are solved by peaceful mediation, by an apology or by payment to a
non-for-profit organization (not a fine). Another bulk of the cases ends with a peaceful settlement infront of the judge. There are professors who evaluate private prosecution as very unsuccessful― since
they do not result in sentencing and punishment. I think these proceedings are very successful:the vast
majority of cases are solved without resorting to punishment, and that is a strength of a society anda success for freedom and compromise.
The idea ofprivate prosecution rests on an ― often false― image that victims are vengeful and thatthey need punishment. It is less the idea of improving the position of the victim. It is the idea to makepunishment possible even if the prosecutor does not see a public interest in punishing. But that is not
at all in public interest but in the interest of revenge-seeking victims. It is therefore highly welcomethat the Privatklage in Germany so rarely leads to a punishment of the offender.
Restorative elements are often included in the way criminal justice proceeds. But that is outside of
the topic of my presentation. Very fruitful was the decision of the German legislature:The behavior
after the offence, especially the serious attempts of the offender to reach an agreement with theoffender (Offender ― Victim ― M ediation)has to be taken into account in sentencing. That led to amushrooming in cases that are solved with mediation. It is very sad that the European attempts tosolve a problem, are so rarely known.
C. Victim Aspects in Probation and in Parole
Since probation is part of the sentencing,it does not need to be discussed here. Parole hearings:TheUN Declaration says nothing about parole hearings. In Japan,the victims do not have a right to makea statement in front of a parole office or a parole board. The same is true for Germany. No matter
how much victims might express their plight and suffering and how much they express their expectation for a negative decision of the parole authority. The Declaration is quite careful:Victims shouldbe able to express their opinion “without prejudice to the accused”. If parole hearings were such“appropriate stages of the proceedings”,then the declaration would have used the word “sentenced”or“convict”. To augment this more formal reason, the material parole decisions must be based on the
future dangerousness and development of the convict. Victims cannot have any information about this.
And they should not be heard in parole proceedings. It would decrease the parole rate beyond
necessity. It would increase victim disappointment. Input of victims in parole decisions is not only
dangerous,it is counterproductive. In the USA,victim support organizations very often rally against
decisions of parole boards who do not have the independence of a court. Regularly there is an outcryof anger and rage against the chance that offenders are released “prematurely”.Such an outrage can

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be organized by means of telecommunication. Organized public “outrages”are really no help for asociety which tries to solve its conflicts peacefully. In Germany,there is no sign that the justice system
is in any way impressed by demands for stiff sentencing,and comparably Germany is known for rather
mild sentencing.
This brings the discussion back from more technical details to the idea that is behind all the efforts
to bring “victims”into the right place in the criminal justice system.
D. Victims in Corrections
In Japan,there are Victim Awareness classes in the correctional institutions. These victim panels
play an important role in prisons. They belong to the resocialization efforts in corrections. The
Belgian correctional system is very far advanced in bringing victimological aspects into the treatment
of offenders. Every prison in this country has a victimological expert in a high ranking correctional
position.

VI. CONCLUSION
In one of the preceding UNAFEI seminars on victims the famous victimologist and criminologist
Ezzath Fattah12 lectured here in this place. Fattah pointed out that “
victim lingo”often hides aconservative, law and order orientation which is anti-offender and which brings the criminal justicesystem to more stiffness and harsher sentencing. I agree fully with my highly respected colleague.
Fattah rightly attacks the political propaganda of some victim support groups who are in accord withlaw and order orientation. There is indeed a danger that well-organized voices of some victim
assistance organizations stir up emotions against offenders. The rhetoric of “We are for victims andtherefore against offenders”― belongs to the repertoire of political arsonists. Progress in the positionof the victim has to do with taking the victim seriously. It is necessary to revise old positions.
Avoidance of secondary victimization is in line with striving for a world with less fear and lessavoidable repression.
It is difficult to see what punishment sustainably does for the alleviation of the pain of victims.
Punishment has not healed a single wound. Financial damage cannot be restored by punishment.
Forfeiture of assets, illegally and criminally gained, may be much more healing ― especially if themoney is used to repair the damage of the victim. Why is it not possible to put fines on probation? A
condition of probation could be that the offender compensate the victim. Is the financial interest of thestate more important than the interest of the victim in restitution of damages?Legislators can do a lot
to make sure that the criminal justice system takes care of the interests of victims.
A less pretentious goal might be to strive for a system that does not damage victims. Avoidanceof secondary victimization is ofgreat importance. Ifcriminal justice serves to achieve a peaceful world
with a minimum of violence, then avoidance of secondary victimization is even more important thansentencing. It is a miscarriage of justice,when sentencing leads to avoidable secondary victimization.
It is better that a guilty offender is acquitted than that “justice”is done while victims suffer avoidable
secondary victimizations.

12 Fattah,E.A.:Victimology Today:Recent Theoretical and Applied Developments. UNAFEI Resource Material Series

No. 56, December 2000, p. 60-70; The Vital Role of Victimology in the Rehabilitation of Offenders and in Their
Reintegration to Society. UNAFEI Resource Material Series No. 56, December 2000, p. 71-86.

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PARTICIPANTSʼPAPERS
THE ROLE OF THE VICTIM IN THE CRIMINAL PROCESS AND
USE OF RESTORATIVE JUSTICE PRACTICES IN BRAZIL:
PROBLEM S AND CHALLENGES IN SEARCH OF PRINCIPLES AND
NATIONAL GUIDELINES
Cyntia Cristina de Carvalho e Silva

I. INTRODUCTION
This article aims to briefly present notions of victim participation in criminal proceedings and on
the use of restorative justice practices in the criminal justice system in Brazil. Thus, initially, we
present an overview of the role of victims in Brazilian criminal proceedings, highlighting the recentchanges in legislation that gave greater importance to the victim in the criminal prosecution.
Whereas one of the basic principles of restorative justice refers to the rediscovery of the victim in
criminal proceedings, some good practices of restorative procedures used in Brazil will also bepresented, which highlight, to some extent, the victimʼ
s role in conflict resolution.
Finally,taking into account the cultural and normative constraints existing in Brazil on the subject,
this paper exposes the challenges and issues which should be discussed in order to develop a national
programme with basic guidelines for the application of restorative justice practices in the country.

II. THE ROLE OF VICTIMS IN THE BRAZILIAN CRIMINAL SYSTEM
The Brazilian criminal justice system follows the Civil Law tradition, due to the strong influenceof the countryʼ
s colonization by Portugal, from the sixteenth century onwards. Thus, the models ofconflict resolution and the sanctions used by the indigenous communities had little influence on theformation of the judicial culture in Brazil and, therefore, are studied very little in Brazilian legal
literature.
By the time of the Brazilian colonization,Portugal already used a criminal justice system based on
the expropriation1 of the conflict from the victim,and on the monopoly of its solution by agents of theState. This characteristic had a strong influence in shaping the current criminal justice system ofBrazil,and especiallyin building a legal sensibilitythat values the role ofa third party,the professional
judge in the case, to resolve social conflicts.
This expropriation of the victimʼ
s conflict by the State is reflected in the Brazilian legal system in
the Federal Constitution, which restricts to the Prosecutorʼs Office, as a general rule, the proposal of
all public prosecutions2. Basically, in Brazil, there are two ways to initiate criminal prosecution:a)through public action (indictment);and b)through private action (criminal complaint). In the public
criminal action,there may be two other hypotheses:the criminal action conditioned to a representation―which can only be filed by prosecutors with the previous consent of the victim―and the unconditioned public criminal action,which regardless of the opinion or will of the victim can be filed by theprosecutors3.
Police Chief, Civil Police of the Federal District, Brazil.
1The term expropriation of conflict is widely used in Brazilian legal literature and has a strong significance beyond theexclusion of victims of the conflict, as it is also related to the importance of property in our culture.
2Article 129. Institutional functions of the Prosecutorʼs Office:
I -promote, exclusively, public criminal action, according to the law;
3There is also the public prosecution subsidiary,which is offered by the victim,in the case of inertia of the prosecution,
but it is rarely used.

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As a general rule, the punishment for crimes deemed most serious is done through the publicprosecution and they represent the vast majority of criminal conduct typified in the abstract in Brazil.
Only a few criminal offences,most of them lighter ones4,rely exclusively on the initiative of the victim
through a criminal complaint or a representation for the indictment.
M oreover,in addition to the concentration of most of the initiative to start the criminal process inthe hands of the State,through the public prosecutors,there is another big barrier that hinders or evenprevents the resolution of disputes through conciliation:the principle of obligation. In general, thispostulate consists in the unavailability of prosecution by the prosecutor,whose duty is to take action
every time that he takes cognizance of a criminal offence which entails a public criminal action,when
it is not the case to terminate the investigation5. In this case,if he does nothing,he commits the crimeof prevarication. Thus, the principle of obligation complicates the search for alternative solutions tothe conflicts in the criminal legal system in Brazil, and contributes to a lack of participation of thevictims in most crimes.
However,following global trends related to restorative justice,as well as the increased focus on theneed to increase the participation of victims in the criminal prosecution system6,and also in the context
of the resolution of the General Assembly of the United Nations 40/34,November 1985,which provides
for the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, theConstitution of 1988 (the seventh Brazilian Constitution)provided for the creation of a simpler justicesystem to manage less serious conflicts―civil and criminal―which would be based on the principles ofmorality and simplicity, and would allow interaction and agreement between offender and offended7.
Seven years after the promulgation of the Constitution in 1988, the Brazilian National Congressenacted Law 9.099/95,which created the Special Criminal Courts at the state level8,which brought an
important starting point for the development of restorative justice practices in the country.
A. Law 9.099/95―Law of Special Criminal Courts
The Law 9.099/95,drafted with the spirit of minimal intervention of the criminal law,has the basic
principles of morality, simplicity, informality, judicial economy and expediency, seeking, wherever
possible,reconciliation and transaction,in crimes whose maximum penalty does not exceed two years
in prison9. Generally, the prosecution of these less offensive crimes can be initiated only with theconsent of the victims. However, there are several criminal offences of public criminal action
encompassed by this law,for example,abuse of authority (Law 4.898/65),environmental crimes (Law9.605/98)and crimes against consumers (Law 8.078/90).
In the crimes in which the victimʼ
s participation was already needed to start the criminal process,
4The prosecution for the crime of rape,despite not being minor crime,is of private prosecution,because it is understoodthat it should fit the victim in this case, the decision to undergo, or not, to the scandal of the process.
5The prosecution is expected to promote the termination of investigation,when it is believed that there is no crime in thecase, or investigation line capable of obtaining the evidence needed for the public criminal action.
6Ricardo Luiz Barbosa de Sampaio Zagallo notes the increased participation of victims in proceedings after Nazism.
This subject was also treated in some congresses around the world. In his masterʼs thesis, he evaluated some
practices of restorative justice in Brazil,following the principles developed by John Braithwaite. His work is available at
http://repositorio.unb.br/bitstream/10482/7687/1/2010 RicardoLuizBarbosadeSampaioZagallo.pdf>,accessed 26/10/2013.
7Article 98. The Union, the Federal District and the Territories, and States shall establish:
I -special courts, filled by professional judges, or professional and lay judges, competent for conciliation, trial andexecution of civil suits of lesser complexity and criminal offenses of lower offensive potential through accelerated,andoral procedures, allowed in the cases provided in law, settlement and judgment of appeals by panels of judges of first
instance;
8Later,it was also introduced the Law 10.259/01,which,with the same conciliatory principles of the Law 9.099/05,dealt
with the federal crimes in which the victim are the Union and its legal entities.
9 In Brazil, all conduct considered to be a criminal offence is subject to punishment with imprisonment, which, in somecases, depending on the subjective aspects of the offenderʼs conduct and the aim of the conduct itself, may be replacedby alternative penalties,such as restriction of specific rights or community service. However,with the enactment of Law
11.343/06,which deals with combating crimes related to trafficking in narcotics,the crime of use of drugs doesnʼ
t receive
anymore the penalty of deprivation of freedom. Moreover, for material impossibilities, there is also no punishment ofprison for the crimes committed by a legal entity, as provided for by the Law 9.605/98.

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this participation was highlighted by Law 9.099/95, as, before the beginning of the prosecution, aconciliation hearing is needed to be held, where the victim and accused will be present. The hearing
is guided by a conciliator, who helps both parties to discuss a possible deal, a composition of thedamage or any other measure that satisfies the victim, which will then be approved by the judge. If
the reconciliation is successful, the victim waives the right of representation or to file a complaint
against the perpetrator, and the case is closed with the approval of the judge.
Furthermore, for the crimes that depend on the action of the prosecutor to start the criminal
prosecution,Law 9.099/95 provided some flexibility to the principle of obligation,creating the possibility of reconciliation10. In this transaction, the public prosecutor enters into a deal with the offender:
the prosecutor wonʼt initiate criminal prosecution if the offender fulfills certain requirements,including
providing compensation for damages suffered by the victim,attendance in court with some frequency
over a period of time, the prohibition of visiting certain places, providing community service, etc.
Besides permitting reconciliation, Law 9.099/95 also establishes the conditional suspension of thecriminal process11. In this second measure, the criminal process already has been started, and the
public prosecutor may propose the suspension of the process,subject to the offenderʼs compliance withmeasures similar to those already mentioned,within a certain time interval. If the accused follows the
restrictions, after the agreed time period has passed, the process is extinguished, and he cannot bepunished for this crime.
In these 18 years of enactment of Law 9.099/95, while bringing significant changes in the criminal
justice system in relation to the participation of victims, some Brazilian jurists, as Aury Lopes
Junior12, have some criticisms of it,since one of its basic philosophies,the deployment of conciliation
10 Article 76. If there is representation or in the case of the crime of public criminal action,not being the case filing,theprosecutor may propose the immediate application of a penalty ofrights restriction or fine,to be specified in the proposal.
1 In the cases that the fine is the only penalty applicable, the judge can reduce it to half.
2 There wonʼt be a proposal if it is proved :I -have been the offender convicted of a crime, and applied the penalty of imprisonment by a final judgment ;II -have the agent previously received,within five years,the application of restrictive penalty or fine under this article;
III -the background,social behavior and personality of the agent,as well as the reasons and circumstances of the crime,
doesnʼ
t indicate that the transaction is necessary and sufficient.
3 Accepted the proposal by the offender and his counsel, it will be submitted to the Judge.
4 Accepting the proposal of the prosecutor accepted by the offender,the judge will applythe penaltyofrestricting rights
or fine,it wonʼt be counted to the verification of relapse,being registered just to block the concession of the same benefit
within five years.
5 From the sentence in the paragraph above will fit the appeal referred to in art. 82 of this Law.
6 The imposition of the sanction in 4 of this article shall not bear a certificate of criminal record, except for the
purposes specified in the same device,and will not have civil effects,leaving it to interested propose appropriate actionin the civil court.
11 Article 89. In crimes where the minimum penalty is equal to or less than one year,covered or not by this Law,as hepresents the indictment, the public prosecutor may propose the suspension of the procedure for two to four years,if theaccused isnʼt being processed or has not been convicted of another crime,present the other requirements that authorize
the probation (art. 77 of the Criminal Code).
1 Accepted the proposal by the accused and his counsel, the Judge, after receiving the indictment, may suspend theprocess, subjecting the accused to a trial period, under the following conditions:
I -repair the damage, unless unable to do so;
II -prohibition from attending certain places;
III -ban to absent from the county where he resides, without authorization of the judge;
IV -personal and mandatory attendance to the court each month to inform and justify his activities.
2 The judge may specify other conditions which shall be observed during the suspension,which shall be appropriate to
the fact and the personal circumstances of the accused.
3 The suspension will be revoked if,in the course of the term,the beneficiary were to be prosecuted for another crime
or not perform, without justification, the repair of the damage.
4 A suspension may be revoked if the accused were to be processed, in the course of the term, for a misdemeanor, or
breaches any other condition imposed.
5 The deadline expired without revocation, the judge will declare extinct the punishment.
6 The prescription wonʼt run during the period of suspension of proceedings.
7 If the accused does not accept the proposal under this article, the process will continue in their later terms.
12 AURY LOPES JR. “
DIREITO PROCESSUAL PENAL -9 a ediçao.”Editora Saraiva, 2012-04-05T13:07:29＋00:00.
iBooks.

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in the context of criminal law,was frustrated by the “resurrection in the social imaginary of criminal
misdemeanors and other criminal offences ofminimal social relevance”. In fact,some criminal conduct
that,before the enactment of Law 9.099/95 was not even subject to registration in police stations,such
as honour crimes, disturbing the peace by neighbours and other incivilities, returned to the police
counters, and are sent to the Judiciary for the implementation of the quicker procedure of the theSpecial Criminal Courts. Hence,rather than a reduction in the size of the state intervention,there wasa considerable increase,so that such demand represents a significant portion of police work in the Civil
Police of the Federal District.
Another criticism of the procedure of Law 9.099/95 is founded on a survey conducted by the
M inistry of Justice of Brazil,in 2010,which concluded that,because there is little room for victims topresent their views at the judicial hearings, as the legal professionals end up dominating the negotiations and the time to negotiate reconciliation is short to meet the high demand. Therefore, somevictims leave unsatisfied with the conciliation,and they are often unhappy with the proposals made by
the prosecutor13.
Undoubtedly, Law 9.099/95 inaugurated a new philosophy in the criminal justice system. It
encouraged and enhanced the participation of victims in criminal proceedings, as before it wascompletely ignored, serving only as means to an end.
However, the aforementioned law also inaugurated a serious discussion nationwide about thetrivialization of domestic violence against women, that many times took the guise of low offence
crimes,and so received only light punishments (community service and payment of money),mainly incases of physical harm against wives and companions.
Furthermore, the complexity of the situation of domestic violence, in which generally the womenare financially and emotionally dependent on the perpetrators,influenced them to make arrangements,using the restorative tools of Law 9.099/95, to ward off criminal liability of the offender, as the startof the prosecution relied on the representation of the victim.
In this context, to address the need for specific treatment of gender violence against women, Law
9.099/95 was amended to prevent the application of the mentioned instruments in these cases.
Furthermore,because of this modification,the Brazilian Supreme Court ruled that criminal action on
the crime of corporal injury, in the context of domestic violence against the woman, is public andunconditional and not private anymore.
B. Law 11.340/06―The M aria da Penha Law
An important legislative instrument enacted in Brazil in 2006,as a major victory for the defence of
womenʼ
s rights, was Law 11.340/06, which, besides creating concrete measures to curb domestic
violence against women,brought more legal instruments to ensure protection of victims of this type ofcrime both in the civil and in the criminal sphere. The need to promote mechanisms for the prevention
and repression of domestic violence is also a topic in the Brazilian Federal Constitution14.
Law 11.340/06 is known in Brazil as the Maria da Penha Law,in honour of M aria da Penha Maia
Fernandes. She fought for twenty years to see her companion arrested,due to an assassination attemptthat occurred in 1983,in which she was shot in the back while asleep and became a paraplegic. Thenhe tried to kill her again through electrocution in the shower. The trial took place eight years after
the crime,but the conviction was overturned in 1991. In 1996,there was a new trial that resulted in a
sentence of 10 years in prison,but the defendant appealed. After great international pressure,the case
13 M INISTRYOF JUSTICE, Office of Legislative Affairs.
Final research report: The victim in
criminal
proceedings
Brazil:
a
new
role
in
the
contemporary
scene?
Availableat:
http://participacao.mj.gov.br/pensandoodireito/wp-content/uploads/2012/12/24Pensando Direito relatorio.pdf>,
accessed on October 24, 2013.
14 Article 226. The family, the basis of society, has a special state protection.
8-The State shall ensure assistance to the familyin the person ofeach ofthe members,creating mechanisms to suppress
violence within their relationships.

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was sent to the Commission on Human Rights (OAS),which received,for the first time,a complaint ofdomestic violence. Brazil was then condemned for negligence and failure to respond to such aggression,and was assigned as punishment the preparation of appropriate legislation to respond to this typeof violence.
The aforementioned law brought a rather broad concept of domestic violence against women―defined as any action or omission based on gender that will cause death, injury, suffering physical,
sexual,psychological and moral or patrimonial damage―which facilitates the protection ofthe victims
by public agents, such as the police, the prosecutors and the judiciary.
Additionally, Law 11.340/06 established expedited procedures for immediate protection of thevictims of domestic violence. So,as soon as the aggression happens,the victim must head for a police
station, where she will declare the facts in an official document and request protective measures15,
which range from restriction of rights―suspension or restriction of possession of firearms,prohibitionof approaching the victim or his family or contact with the victim by any means―to the removal of theaggressor from the common home and the provision of aliments to the victim. After the application,
the Police Authority must send it within 48 hours to the Court, which will consider the request
promptly. If the protective measures are imposed, the offender will be informed, and, in case ofnoncompliance, he may have his freedom curtailed.
In more severe cases, where the victim is at risk of death, there is the possibility of referral to ashelter house,whose location is kept secret,and also the possibility for victims to receive aid from thestate for their survival until the threats cease.
In light of the need to empower the victim in the criminal justice system,an important dilemma to
be evaluated is a recent decision of Brazilʼ
s Supreme Court,which,in cases of domestic violence withbodily injuries, the criminal action is public and unconditioned, and the victimʼ
s will is disregarded.
The aim was to offer better protection to women, as many times they were coerced to withdraw the
charges,and this new interpretation made it impossible. On the other hand,this interpretation has also
expropriated the conflict from the women,and blocked her from seeking a bargained solution to solve
problems within her own family. The question, however, remains open, and also represents anotherchallenge for the discussion of the implementation of the principles of restorative justice in Brazil.
C. Recent Changes and News with Discussions of the CP and the New CPP
The Brazilian Code of Criminal Procedure (1941)and Penal Code (1940),legislation in existence forover 70 years, presents a philosophy originally directed to the expropriation of the victimʼ
s conflict,
15 Article 22. Confirmed the practice of domestic and familyviolence against women,under this Law,the judge mayapply

immediately to the offender, together or separately, the following urgent protective measures, among others:
I -suspension of possession or restriction of authorization of bearing arms,with communication to the competent body,in accordance with the Law 10.826/03;
II -removal from the home, residence or place of coexistence with the victim;
III -prohibition of certain conducts, including :a)approximation of the victim, her family and witnesses,fixing the minimum distance between them and the offender ;b)contact with the victim, witnesses and their families by any means of communication;c)frequenting certain places in order to preserve the physical and psychological integrity of the victim ;IV -restriction or suspension of visits to minor dependents, heard the multidisciplinary team or similar service;
V -providing provisional or temporary aliments.
1 The measures referred to in this Article shall not preclude the application of other under the laws in force,where thesafety of the victim or the circumstances so require, and this other measure shall be communicated to the prosecutors.
2 In the case of application of item I, finding the perpetrator under the conditions mentioned in the heading and itemsof Article 6 of Law 10.826/03,the judge shall inform the respective body,corporation or institution the urgent protective
measures granted and determine the restriction of carrying weapons, becoming the immediate superior of the abuser
accountable for compliance with the Courtʼ
s order under penalty of the crimes of disobedience or prevarication, as
appropriate.
3 To ensure the effectiveness of urgent protective measures,the judge may order,at any time,assistance of the police
force.
4 Applies to the cases specified in this Article,as applicable,the head and the paragraphs 5 and 6 of Article 461 of theLaw 5.869/73 (Code of Civil Procedure).

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focusing the response to crimes on state agents,without taking much into account regarding the wishesof the victim.
However,such statutes have undergone various changes over time in order to be harmonized with
the new philosophies of criminal process relating to the minimum penal law paradigm,the valorizationof the victim in criminal proceedings and measures of Restorative Justice.
In this context,for example,the Code of Criminal Procedure undergone significant changes throughthe recent laws 11.719/08 and 11.689/08,which brought an appreciation of the victims,expanding theirrights and guarantees. They brought, for example, the right of the victim to be alerted of the arrestor release of the accused, and the possibility of overlapping the criminal action with the request forcompensation for the damage caused by the crime.
These limited reforms to the Brazilian system of criminal justice undermine the notion of its
systemic ordering,so currently there are,in the final stages of discussion,two bills to replace,in full,
both the current Criminal Code and Criminal Procedure Code.
Regarding the victimʼ
s rights, the new project of the Criminal Procedure Code―Bill 156/2009―provides for a new chapter on the subject, in which the victim is no longer considered just an
instrument of evidence to support the conviction of the accused,but happens to be a subject of rights.
Hence, in keeping with the content of the Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power, approved by the United Nations in 1985, the new code proposes, in thecourse of sixteen statements16, better treatment of victims with the principles of compassion andrespect for their dignity, as well as psychosocial assistance and immediate treatment of any traumas
resulting from the offence.
M oreover, despite plans to eliminate private criminal action, the victim will be able to directly
follow the criminal case,receiving copies of the police investigation and judicial proceedings,which is
not the usual practice today, except when enacted confidentiality in the investigationʼ
s interest.
Another novel measure that the future Code of Criminal Procedure will provide,if approved,is thepossibility of the victim receiving financial aid from the State both for her and for her close relatives.
This is important in order to avoid secondary victimization of the offended, consisting of difficulties
experienced throughout the criminal process because of the crime.
The bill of the new Penal Code,Bill 236/2012,also introduces modifications which,albeit timid,are
important in relation to the rights ofvictims. It introduces,for example,the incidence ofautomatic fine
against the perpetrator when the crime generated harm to the victims,to their benefit,and the judgeʼ
sobligation to fix aliments for family members of homicide victims, to be imposed on the accused.
Despite these measures, it appears that, in the discussion of the construction of the main legal
16 Article 91. Are rights guaranteed to the victim, among others:

I -to be treated with dignity and respect befitting his situation;
II -receive immediate medical and psychosocial care;
III -to be sent to a forensic exam when suffering personal injuries;
IV -recover in case of crimes against property,objects and personal belongings which were stolen,except for the cases
in which a refund cannot be done immediately because of the need for expert examination;
V -to be informed of:a)the arrest or release of the alleged perpetrator;b)the completion of the police investigation and the offering of the indictment;c)the filing of any investigation pursuant to Article 39;d)the conviction or acquittal of the accused ;VI -obtain copies of parts of the police investigation and criminal proceedings, except when justifiably kept in strict
confidence;
VII -be counseled about the appropriate exercise of the right ofrepresentation,the private action subsidiaryofthe public,
civil action for patrimonial and moral damages,the civil accession to the criminal prosecution and about the compositionof the damage to effect the extinction of criminal liability in cases prescribed by law;

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instruments for the consolidation of a criminal justice system,there still isnʼt a philosophy focused on
the use of restorative justice practices in a systemic way,consolidated into a nationwide programme,
nor is there sufficient attention focused on the valuation of the victim in criminal proceedings.

III. RESTORATIVE JUSTICE PRACTICES IN BRAZIL
Despite not being able to claim that there is a national programme aimed at restorative justicepractices, it is possible to find in Brazil local examples of applying restorative programmes. Several
factors, including the overcrowding of prisons―in December 2012, the Brazilian prison system hadroom for 310,667 inmates, and a prison population of 548,003 people―the index numbers for criminal
relapse,the high costs for the maintenance of the criminal justice system,the difficulty in repairing thedamage and dissatisfaction of victims with the criminal proceedings are some of the factors that win
more and more fans to the model of restorative justice.
Although there is no clear definition or consensus on what restorative justice is,it is understood asa set of practices aimed at conciliation and reconciliation between the parties,at the resolution of theconflict,the reconstruction of the ties broken by the criminal offence,the prevention of recurrence andpersonal accountability17.
The Australian John Braithwaite believes that “restorative justice is a process where all people
18. Braithwaite
affected by an injustice have an opportunity to decide what should be done to fix it”
outlines some key elements of the restorative justice model: 1) willingness to participate, 2) equal
opportunities for the manifestation of the parties,3)prohibition of humiliating punishments;4)restoration of human dignity,property,security and the human relations. Besides these elements,the author
points to other standards that attest to the success of restorative practice,for example,remorse for theinjustice done, apologies, forgiveness of the victim and compassion.
Another important element that integrates the model of restorative justice is the responsibility of
those involved,characterized by their empowerment to manage the conflict. Although there is a thirdside guiding the procedure,the parties directly involved assume the central role of the process,a task
normally given to a third party, usually a state agent, in the traditional model of conflict resolution.
In Brazil,despite the indicated legal limits to the model of restorative justice,one can identify somepilot restorative justice projects. ZAGALLO pointed to three experiments:Sao Caetano do Sul,in thestate of Sao Paulo;Porto Alegre, in the state of Rio Grande do Sul;and Nucleo Bandeirante, in the
VIII -testify on a dayother than the one stipulated for the hearing ofthe alleged perpetrator or wait in a separate location
until the procedure begins;
IX -to be heard before other witnesses, according to the order under the heading of Article 276;
X -to petition the authorities to be informed about the progress and the closure of the investigation or proceedings, aswell as express their opinions;
XI -get the offender to repair the damage, secure the assistance of a public defender for this purpose;
XII -intervene in criminal proceedings as assistant prosecutor or as civil suitor for the claim for indemnification;
XIII -receive special protection from the State when, due to his cooperation with the investigation or prosecution,
suffering duress or threat to their physical, psychological and patrimonial integrity, being extended the protection
measures to the spouse or partner, children, family and the like, if necessary;
XIV -receiving financial assistance from the Government, in specific cases and conditions determined by law;
XV -be referred to shelters or programmes for the protection of women in situations of domestic violence,if applicable;
XVI -get,through simplified procedures,the premium of the compulsory insurance for personal injuries caused by motor
vehicles.
1 It is the duty of all to respect rights under this title, especially the public security organs,prosecution,the judiciary,
the government agencies and social services and health.
2 The communications referred to in item V of the head of this Article will be made by post or e-mail address registered
and will be done by the authority responsible for the act.
3 The authorities will always careful to preserve the address and other personal data of the victim.
17 PALLAM OLLA,Raffaella da Porciuncula. Justiça restaurativa: da teoria a pratica. 1a. ed. Sao Paulo:IBCCRIM ,2009.
p. 53.
18 ZAGALLO,Luiz Barbosa de Sampaio Ricardo. A justice restaurativa no Brasil:entre a utopia e a realidade. Availableat
http://repositorio.unb.br/bitstream/10482/7687/1/2010 RicardoLuizBarbosadeSampaioZagallo.pdf>,accessed 26/10/2013.

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Federal District.
The first two experiments concern the application of restorative justice practices to conflicts
involving young people. The age at which a person may be responsible for a practice of criminal
conduct,in Brazil,is 18 years. If the agents is between 12 and 18 years,he doesnʼ
t commit a crime,but
an infractional act, resembling a crime, and is submitted to the infractional justice system, aimed at
teenagers. This system, however, offers more flexibility in relation to the criminal justice system,
because instead of being governed by the principle of obligation,the principle of opportunity is applied,
through the possibility of remission provided for in Article 126 of Law 8.069/90(Statute ofChildren andAdolescents)19. In the remission,the public prosecutor,before starting judicial procedure,can forgive
the teenager, according to the circumstances of the case, subject to the approval of the judge.
Thus,in the city of Sao Caetano do Sul,the restorative justice project is intended to resolve conflictin the school environment,where restorative circles are established with the participation ofvictim andoffender,their supporters,community representatives and two facilitators. Where conflicts involve thepractices of infractional acts,the terms of the agreement,formulated in the restorative circles,are sent
to the public prosecutor and subject to the approval of the Judiciary.
In the city of Porto Alegre, the use of restorative justice measures is also aimed at young people,
but more broadly. The project covers not only school conflicts prior to the initiation of judicial
proceedings,but there is also the possibility of submission to restorative circles during court proceedings and even in the execution of educational measures―the punishments in case of the practice ofinfractional acts.
Differently,the project implemented in Nucleo Bandeirante is intended to reduce crimes. Since 2006,
the Court of Justice of the Federal District and the Territories created a center of restorative justicepractices to work in conjunction with the Special Criminal Courts and improve the implementation of
the institutes of the Law 9.099/95. Thus,when the public prosecutor,judge or public defender perceives
a conflict with potential to be solved by those involved, they are referred to a restorative meeting.
There, the best techniques of mediation will be applied to seek the solution of the problem and an
agreement, or to prove its impossibility.
The timid practices of restorative principles in Brazil, as well as the weak measures for recoveryof the victimʼ
s importance in the criminal justice system,point to the need for discussion of the subject
in the country and to identify its challenges.

IV. CHALLENGES AND WAYS TO ENHANCE RESTORATIVE JUSTICE IN
BRAZIL
When compared to the traditional way of resolving conflicts in the western world, especially incountries of the Civil Law tradition, the dialectical and consensual logic of restorative justice, more
typical of the Common Law tradition, presents a break in the paradigm of criminal legal systems
focused on the offender, to the detriment of the victim.
In this context,the concept of legal sensibility developed by the anthropologist Clifford Geertz is an
important guideline for comparative studies of legal institutions based on different legal systems suchas the Common Law and Civil Law. Geertz proposes a study that emphasizes the context of the
19 Article 126. Before starting the procedure for judicial determination of an infractional act,the public prosecutor may

grant remission,as a form of exclusion from the process,given the circumstances and consequences of the fact,the social
context as well as the teenagerʼs personality and its largest or lesser participation in the infractional act.
Unique paragraph. Initiated the procedure,the granting of remission by the judicial authority will imply the suspension
or termination of the process.
Article 127. Forgiveness does not necessarily imply recognition or proof of responsibility, nor prevail for purposes ofbackground and may eventually include the application of any of the measures provided by law, except the placementin the regime of semi-freedom and internment.
Article 128. The measures applied by virtue of the forgiveness may be judicially reviewed at any time, at the express
request of the adolescent or his legal representative, or by the prosecutor.

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institutions and their local significance,which lend it the legitimacy required to produce its organizing
effect20. So he adopts the view that the right is a local knowledge,putting in question the roots of its
legitimacy, founded by those who choose to owe it obedience, or that are required to do so.
From this premise, Roberto Kant de Lima briefly explains the different trappings of the idea oflegitimacy in the Civil Law and the Common Law traditions. Under the Civil Law tradition, thelegitimacy is based on abstract rationality,in which it is considered that the technical judgments,madeby judges,are better than the judgments ofordinarypeople,who donʼt have access to a specialized legal
knowledge. Differently, the legitimacy of the judgments under Common Law tradition is based onreasonableness, in which the parties discuss their arguments and the decision emerges from theconsensus of the referees.
The valorization of the technical judgment of a third person is a deep-rooted tradition in Brazil,and
this characteristic is essential for understanding the challenges of restorative justice in the country. In
the criminal trial,the suitors adopt the practice of endless contradiction of versions,which is finishedonly with the sentence of the professional magistrate. In this context, rarely the parties adopt a
consensual and dialectic approach.
It is a Brazilian cultural characteristic or legal sensibility which points to the need of building
specific principles of restorative justice for the country. The traditional paternalistic attitude of thestate towards its citizens is another cultural aspect of Brazilian society to be considered as a challenge
to the application of restorative justice practices, and to the enhancement of the role of victims incriminal proceedings.
Considering the historical aspects ofBrazil,as well as the youth ofour Constitution,which reopened
the Democratic State, as well as the socio-economic aspects of the country, in which there is great
inequality between citizens,much of the population adopts a passive stance about the defence of theirrights. Such a stance is not consistent with the principles of restorative justice, which value thecapacity and autonomy of the parties to discuss the best solution to the conflict.
So it is critical to think about a model of restorative justice in Brazil that takes into account thispassivity and encourages emancipatory practices in the use of conciliatory mechanisms. Alongsidethese cultural aspects,there is also a large formal challenge that still must be overcome at a systemiclevel:the relaxation of the principle of obligation.
As stated earlier,the bills ofthe new Penal Code and the new Code ofCriminal Procedure bring only
timid enhancements for the rights of the victims,and showed no major change in the prevailing logicof expropriation of the conflict. Without a relaxation of the principle of obligation,allowing the useof restorative practices for any type of crime,always according to the characteristics of the case,it is
not possible to achieve great advances towards restorative justice in Brazil,as well as the appreciationof the role of the victim in criminal proceedings.
However, while these bills proceed through the Brazilian Parliament, the legislative procedure ofBill 7.006/06 is also going forward. This bill provides for the use of restorative procedures for all typesof crimes, if it is advisable under the facts and circumstances of the case as well as the personalitiesof the parties. Under the mentioned bill, these procedures shall be governed by the principle ofvoluntariness, human dignity, impartiality, proportionality, cooperation, informality, confidentiality,interdisciplinarity,accountability,mutual respect and good faith. It appears that the proposal constitutes a true relaxation ofthe principle ofobligation,enabling the prosecution to forbear criminal action
while there is an ongoing restorative procedure21. It is also interesting to notice that, during the
20 LIM A, Roberto Kant de. Sensibilidades jurı
dicas, saber e poder: bases culturais de alguns aspectos do direito brasileiro

em uma perspectiva comparada. Anuario Antropologico/2009 ― 2, 2010:25-51.
21 Article 14-added to Article 24 of DecreeLaw n. 3,689,of October 3,1941,the third and fourth paragraphs,as follows:
3 -The judge may, with the consent of the prosecutor, refer the case to the centers of restorative justice,when victim
and offender demonstrate voluntarily intend to undergo the restorative procedure.
4 -The prosecutor may not propose the criminal action while ongoing restorative procedure.

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investigation,the police authority itself may suggest the referral of the parties to find a solution to thecase through a restorative procedure. If an agreement is reached, with the consent of the publicprosecutor, the judge will approve this conciliation22.
Although Bill 7.006/06 presents a significant advance for the intensification and development of
restorative justice mechanisms in Brazil,as it proposes important modifications to the current systemof the Penal Code and Criminal Procedure Code, its rapporteur in the Parliament, Congressman
Antonio Carlos Biscaia, opined for its rejection. He stated that, although the project is important, it
goes against the desires of the Brazilian society, that currently suffers the feeling of impunity, as it
would decriminalize behaviours.
However, the implementation of a restorative justice project in Brazil has nothing to do withdecriminalization of behaviours considered criminal. Rather,it seeks more effective measures for thesatisfaction of the parties involved, with the compensation for property, social and psychologicaldamage. It promotes democratic and social accountability mechanisms in cases that recommend theuse of restorative methods, irrespective of abstract legal prohibition. The sense of satisfaction after
the success and effectiveness of a restorative circle, unlike the argument of Congressman Antonio
Biscaia, leads to a reduced sense of impunity, not to its increase.
The possibility of greater freedom of the police authority also stands out as a breakthrough in Bill
7.006/06, in which the police may directly refer the parties to the restorative procedure.
In Brazil,police stations operate 24 hours,and are responsible for receiving most reports of crimes,
recording them and ascertaining the facts. Victims seek the police and report the facts,which should
be taken immediately to the Chief of Police,who is responsible for deciding whether or not the reported
facts constitute a crime, and for explaining the procedures for the settlement of that conflict to thevictim. In many cases, the Chief of Police just mediates the differing interests between the parties,
which many times are characterized as family or neighborhood conflicts.
The possibility of the use of restorative instruments from the first contact of the victim or theoffender with a state agent―what generally happens at the police station―would constitute a major
breakthrough for the development of justice in Brazil, and to the construction of a more democratic
criminal justice system. It would also promote a paradigm shift in the Brazilian legal sensitivity,whichis grounded in the valorization of the “technique”of “knowledge-power”.

V. CONCLUSION
The path to the development of restorative justice in Brazil, as well as the appreciation of the
dignity of the victim in criminal proceedings, still requires hard work to be followed, although it ispossible to say that some windows have been opened by means of restorative practices introduced by
the Law of Special Criminal Courts and the Law Maria da Penha.
However,the major challenges related to the sensitivity of the Brazilian legal culture in relation to
the valuation of technical judgments, instead of dialectic debate and emancipated citizens, present a
major barrier to achieve a national project, based on the principles and guidelines of the restorative
procedure, and the necessary relaxation of the principle of obligation. Despite these difficulties, it isimportant to continue following this path in practice in order to trulyimprove the Brazilian democratic
state.

22 Article 13 -It is added to Article 10 of DecreeLaw n. 3,689, of October 3, 1941, the fourth paragraph, as follows:

4 -The police authority may suggest, the investigation report, the referral of the parties to the restorative procedure.

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RESTORATIVE JUSTICE FOR ADULTS AND JUVENILES IN
THAILAND
Dr. Angkana Boonsit

I. INTRODUCTION
Thailand introduced restorative justice in the M inistry of Justice, both in the Department of
Probation for adult cases and the Department of Juvenile Observation and Protection for juvenile
cases.
Thai criminologists and criminal justice practitioners first learned about the concept of restorative
justice in 2000. The first national seminar on restorative justice,which formally introduced restorative
justice to the Thai criminal justice communities,was organized subsequently on January 6,2002. The
seminar has achieved quite a successful result. There was good feedback as the media has paid great
attention to this new justice initiative. Several articles were published in major newspapers, both
English and Thai, regarding restorative justice. Moreover, the restorative justice concept has beentaught in advanced criminal law courses in the major law schools as well as in other criminal justiceinstitutions. There were doctoral dissertations focused on restorative justice. Due to the success in the
launching of the idea, Thailandʼs major research funding agencies had expressed their willingness to
support further studies on the application of restorative justice in Thailand.
The first implementation of restorative justice practices occurred in 2003 when a family groupconferencing initiative was set up by the Department of Juvenile Observation and Protection. In 2004,
the Department of Probation also implemented victim-offender mediation using the name “to restore
relation conferencing”for adult cases.

II. CURRENT SITUATION REGARDING RESTORATIVE JUSTICE IN
THAILAND
A. Restorative Justice for Juveniles
1. The Step of Family and Community Group Conferencing
In the year 2000, the New Zealand government, through its Good Governance programme, invitedthe Director-General of the Department of Juvenile Observation and Protection, M r. Wanchai Roujanavong, and his colleagues to New Zealand to be trained in child-friendly procedures for abusedchildren. The process of family group conferencing (FGC)was introduced during the training period.
In March 2003, the Department of Juvenile Observation and Protection planned and preparedregulations and guidelines, including intensive training of staff, for Family and Community Group
Conferencing (FCGC) implementation with the support of UNICEF. After all the preparations, thedepartment launched the FCGC project and conducted its first family and community group conferenceon 1 June 2003. This was followed by implementation of the project, along with regulations andguidelines, in the 52 Juvenile Observation and Protection Centers around the country. These centersused and adapted versions of New Zealandʼs family group conferencing approach,and incorporated thecommunity as a significant part of the process. This is because in Thai society the community plays
a very significant role in nearly every aspect of the lives and social functions of the Thai people.
Therefore,the conferencing approach in Thailand was called Family and Community Group Conferencing (FCGC).
Inspector, Department of Probation, Ministry of Justice, Kingdom of Thailand; B.A. (Sociology) Prince of Songkla
Univ.,LL.B.Ramkhamhaeng Univ.,M.A.(Criminology)M ahidol Univ.,Ph.D.(Social Administration)Thammasat Univ.
Thailand.

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At the beginning, during the first three months, very few cases went through the FCGC process
because the facilitators and directors of the protection centers throughout the country were not reallyconfident in organizing the conferences. They were very cautious and needed a lot of advice inapplying this measure, but as time went by with more and more experiences gained in FCGC, themajority of them admitted that they liked it and felt that it was a good measure for giving the children
another chance in life. They agreed that it provided a venue for a child and his/her parents to openly
discuss the problem, created a better understanding within the family, and gave victims the right tospeak,participate and share their feelings. It also gave the community a chance to support the children
and their parents in solving the problems that affected the community,and as a result,social harmony
had been restored through the restorative practice.
In 2004, the department contacted the International Institute for Restorative Practices (IIRP) for
technical support to integrate the Real Justice model into FCGC in Thailand to strengthen the practice.
M r.Ted Wachtel,Dr.Paul M cCold and Ms.Beth Rodman,restorative practice experts with the IIRP,
were invited to train several staff in the department to be trainers of FCGC facilitators. The trainers
then went out to train other staff in all the protection centers to be efficient conference facilitators
based on the Real Justice model.
2. Laws to Support the Practice
The implementation of restorative justice for juveniles in Thailand has developed quickly,in partdue to a law supporting this practice,although not drafted for that purpose. This law,the Juvenile andFamily Court and Procedure Act, has two relevant articles―Articles 50 and 63―that facilitate theimplementation of FCGC. Article 50 provids that when a child is arrested,the police are obligated tosend the child to the Protection Center within 24 hours. Article 63 gives the Director the Protection
Center the authority to recommend a non-prosecution order to the prosecutor in the jurisdiction.
In making such a proposal, the Director uses his/her discretion based on three factors:(1)Qualifications of the child need to fit the criteria:the offence committed is punishable by not
more than 5 yearsʼimprisonment,it must be the childʼs first offence,the child has to plead guilty
and want to repair the harm done, and the victim has to give consent to use FCGC.
(2)the Director is of the opinion that the child can be reformed without being prosecuted in court;(3)the child consents to be under the control of the Director during the follow-up monitoring.
Application of the law was not drafted with the purpose of benefiting FCGC;it was designed as analternative approach in general.
Article 63 had been law for several decades without being used because the Director did not want
to exercise this discretion alone. FCGC addressed this concern by drawing in the key stakeholders.
Conference participants include the victim, the juvenile offender, the parent/s and relative/s of thechild, a psychologist, a social worker, one or more representatives or the community, the Director of
the Protection Center,the police investigator,the prosecutor,and the conference facilitator. Under the
FCGC process, the decision to make a proposal for the non-prosecution order is a collective decision,
derived from the brainstorming of all the participants in the conference,while the role of the director
is to deliver the collective decision to the prosecutor.
In 2010, the Juvenile and Family Court and Procedure Act 1991 was repealed and replaced by theJuvenile and Family Court Act 2010 (B.E.2553)CHAPTER VII:Special Measures in Place of criminal
Prosecution:article 86
A child or juvenile is alleged to have committed a criminal offence that is punishable bymaximum of 5 yearsʼimprisonment.
Child or Juvenile has shown repentance for his or her act before the prosecution, and the
Director of the Juvenile Observation Center considers by taking into account the age,personal132

156TH INTERNATIONAL SENIOR SEM INARPARTICIPANTSʼPAPERS
records, behaviours, intelligence, education background, physical and mental conditions,occupation, financial status and cause of the offence, that the child or juvenile may reform
himself or herself without the requirement for prosecution.
The preparation of the Rehabilitation Plan shall be subject to consent from the victims and thechild or juvenile.
If it appears to the court that the process of preparing the rehabilitation plan is unlawful,thecourt may issue an order as it considers appropriate.
Article 87:In preparing a rehabilitation plan pursuant to section 86,members:child or juvenile andhis or her parties, the victim parties and psychiatrists or social workers, may also invite community
representatives or agencies that have relevant duties or that have been affected by the offence, or apublic prosecutor. The rehabilitation plan shall be complete and proposed to the public prosecutor forconsideration within 30 days from the date on which the child or juvenile has shown repentance for hisor her act.
Article 90:When a prosecution is brought to the court against a child or juvenile and the alleged
criminal offence is punishable by a maximum of 20 yearsʼimprisonment. For both cases if therehabilitation plan is fully complied with,the Director notifies the court,and the court issues an orderto strike the case out of the case-list.
The Department of Juvenile Observation and Protection defines “special measures”as the alternative measures to prepare rehabilitation plans,and FCGC is used as a method for repentance showing.
In some cases that juvenile can be rehabilitated without trial,under the condition that the juvenile has
to change his/her behavior(s), restitution is paid, the damage is repaired, and something is done forsocial safety. The officials have to propose the rehabilitation plan to the prosecutor for consideration.
Experience has shown that preparation is the most difficult and vital part of the process. The
conference facilitator explains the entire process,including the positive and negative aspects of FCGC,
to the victim,the child offender and his/her parents. In many cases the facilitator has to approach thevictim more than once. With good and appropriate preparation,failure in the conferences is verymuch
reduced. So, the department uses FCGC in this process. The outcome of FCGC is used to prepare arehabilitation plan.
B. Restorative Justice for Adults
1. The Step of Restorative Justice Implementation
The Department of Probation initiated a programme for adult offenders in 2004 when there was nolaw to support this practice for adult offenders. Fortunately,the Director-General of the department,
Dr. Kittipong Kittayarak, is the leading thinker on restorative justice in Thailand, and there was amaster plan of the justice system which supports the restorative justice approach. The vision of thisplan was “to develop the justice system by enabling effective use and also enhancing a just and fair,
restorative and peaceful society beyond an equilibrium between law enforcement and human dignity.”
The mission was “to promote and to develop the justice system and its mechanisms regarding rights/
liberty of people,the community and other organizations. The rights of the victim are emphasized forenhancing a vigorous and harmonious society.”
Restorative justice was included in this plan,under strategyNo.6,as a method ofdispute resolution.
So, in April 2004, the Director-General appointed the restorative justice committee in the department,
which is composed of high level executives. The committee authorized to assign a framework andpolicy to run the restorative justice project. Even though there is no law to support this process, weconsidered the legal framework for how it could be done. According to the Probation Procedure Act,
1979, article 12 states, “When the court orders a probation officer to do a pre-sentence investigation
report,the probation officer ha［s］to propose the social inquiry report which consists of the offenderʼssocial background and officerʼ
s suggestion within 15 days following the court order.”The committee decided to use restorative justice at this stage because the outcome of the conferenc-

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ing or the agreement between victim and offender might be useful for sentencing. But not all offencesin these types are eligible. Most of them must be compoundable offences, for example sex offences
against persons over the age of 15, property offences against relatives and some petty offences.
Restorative justice was implemented by pilot project in 11 probation offices. After that, theregulations, the guidelines and the curriculum for mediator training were set up, and handbooks formediation and for restorative justice procedure were compiled. In M ay 2004,the first training course
was held on restorative practices in 11 probation offices. Only four months after that, in September
2004, the committee decided to extend the project nationwide.
From 2004-2006,there were 379 trained mediators,and each probation office had 1-2 mediators. By
2006, all directors of probation offices around the country were trained under a special curriculum
aiming to manage restorative justice practices and support or encourage the mediatorʼ
s work in theiroffice. These developments show that even though there is no legislation specifically for restorative
justice, we can implement restorative practices through policy.
By observation and experience, I found that most of the judges knew restorative justice by the
pre-sentence investigation report which described restorative processes and outcomes. They were
aware of the victimʼ
s voice and victimʼ
s needs, which were never previously recognized in criminal
justice procedure. The partiesʼagreement has also been accepted as the courtʼs judgment.
The partiesʼsatisfaction is one way to promote restorative practice. They tell others about
restorative practices, their experience in the conference and how satisfied they are. From 2006-2007,
we did quantitative research entitled “
Human Rights in Restorative Justice Approach”.
2. M ediator Training(a)Restorative justice approach
Restorative Justice is the justice to restore relationships in cases of conflict resolution. In Thailand,
when someone talks about restorative justice, they also expect that the conference or the mediation
process can lead to forgiveness. Sometimes they imagine that when the conference is finished,victim(s)and offender(s) might hug one another. In fact, forgiveness does not happen easily. I would like toexplain the forgiveness process by Ron Claassenʼs Peacemaking M odel.
Peacemaking based on love, caring and valuing is helpful in clearly understanding restorative
justice. The peacemaking process should start with a commitment to be constructive which has to startwith someone. This means that someone has to decide to take the initiative by being constructive eventhough what was done to them was not constructive. When both victim and offender decide to beconstructive they are both more free to fully describe and understand what happened,the damage,thehurt, and its ongoing impact (Claassen, 2002, p. 4). The second step, explained by Claassen, is
recognizing the injustice which is the part when all of the parties describe their experience and feelingand have them recognized by the other(s). Recognition is the focus of this part of the process(Claassen,
2003, p. 25). The third step is restoring equity, where something is done to restore equity as much as
possible. Restoring equity is usually a combination of restitution,something the offender can do,and
grace, “the letting go”part by the victim. Restoring equity could be all grace but is usually somecombination of restitution and grace(Claassen,2002,p.7). The fourth step,clarifying future intentions,means changing the way things were done in the past so that the violation or injustice will not happen
in the future (Claassen, 2002, p. 8).
One of the important stages that follows clarifying future intentions is follow-up and accountability,
where agreements that have been made, have been kept and have been acknowledged as having been
kept (Ron Claassen, 2002, p. 9). When equity is restored,by which the future intentions are clear andhave been kept,forgiveness is discovered. Claassen (2002,2003)has explained further that forgivenessis a process that transforms a relationship which has been damaged by hurt,violation,or injustice,into
a new creation. When people experience all of the parts of this pattern, they say they discover
forgiveness. The more thoroughly they experience each part of the pattern,the more they experience
forgiveness. It is much more than a pronouncement, and it is experienced most clearly when theoffender and the one who was offended, after significant preparation, “return to contact,to dialogue,

134156TH INTERNATIONAL SENIOR SEM INARPARTICIPANTSʼPAPERS
to confrontation with caring (Ron Claassen,2002,p.12). In this process of invitation and opportunity,
they make agreements. When people make an agreement with each other, it means that trust begins
to grow. When they keep the agreements that have been made,trust grows even more. When someone
is unwilling to make an agreement with another, trust diminishes (Ron Claassen, 2002, p. 12). Love,
trust, and forgiveness are the core elements to restoring relationships. These core elements arefundamental values of the alternative healing justice―restorative justice.
On the other hand, restorative justice is the process of problem solving which involves offenders,
victims, and the community in specific offences by viewing how to deal with the aftermath of theoffence and its implications for the future, to build good relationships rather than simply dealing out
punishments. In addition, it requires the attention to victimsʼneeds ― material,financial,emotional,
and social (including those personally close to the victim who may be similarly affected). The process
will enable offenders to assume active responsibility for their actions and to recreate a working
community that supports the rehabilitation of offenders and victims (M arshall, Tony E, 1999, p. 6).
One of the principles of restorative justice is to “make things as right as possible”(Ron Claassen,1996)which includes:attending to needs created by the offence such as safety and repair of injuries torelationships and physical damage resulting from the offence, and attending to needs related to thecause of the offence (addictions, lack of social or employment skills or resources, lack of moral or
ethical base, etc.). An important process of restorative justice is a victim-offender meeting (MarkUmbreit,1998,2001 and 2003)which is a way to give the offender a chance to compensate his/her victim
voluntarily. Compensation can mean more than paying money to the victim,and it includes an apology
from the offender to the victim and an explanation of the cause of his offence. The offender will listen
to the victimʼ
s feelings and the impact that the victim felt from the offenderʼs action. This can betherapeutic for the victim to express his/her feelings and make an invisible impact on the offender. All
this leads the offender to compensate/make reparations to the victim. It helps the offender to prepare
himself to return to live in the community. The reparation will take the form of: (1) monetarycompensation (2)doing some work for the victim (3)working for a community where the victim is the
person who can choose what job to do (4) participating in rehabilitation activities such as drug
rehabilitation, or attending a counselling course or (5)the last choice is to do all of the above. Thismethod is flexible and responds to victim-offender needs. The process works through victim-offender
capacities rather than the process of court. Some victims can forgive offenders.
The social benefits of victim-offender mediation (Angkana Boonsit,2004)are:(1)victimsʼneeds areable to be understood,including the need to be consulted,(2)victim and offender can see each other aspersons rather than stereotypes (a learning experience for both),and (3)offenders are more affected by
the experience than by bringing of formal criminal charges against an offender in court and punishment,while being given a positive motivation and a feeling that society is ready to accept the offenderback again. The meeting should be done carefully,and the person who facilitates the meeting should
be a specially trained mediator, whose primary tasks are to make certain to create a safe andcomfortable environment and lay out firm ground rules for producing beneficial results, which is are-affirming and a positive learning experience for both parties. The characteristics of the mediator
become important―genuineness,authenticity or self-congruence,showing non-possessive warmth withaccurate empathy. The mediator should be tolerant: although he/she may find certain aspects of
behaviours of the victim or the offender or any person in the meeting personally unacceptable, themediator can distinguish between his/her feelings towards the behaviour and toward the person.
(b)Counselling: the embedded process in restorative justice practiceFor practicing restorative justice specifically by Ron Claassenʼs Peacemaking M odel,which focuseson love, trust and forgiveness, a victim-offender meeting (VOM) becomes an important process inrestoring relationships. This process must be a voluntary one―that is,the victim should be the person
who decides to have or not have a meeting with the offender who also makes a decision to see thevictim. The mediator needs to meet individually with the victim and the offender in order to help eachof them to understand themselves and to become voluntarily and constructivelyinvolved in the process.
The process can be explained as follows:

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Step 1 Commitment to being constructive

When both agree to have a meeting,there is commitment to be constructive. This means that eachindividual has at least considered and decided to take the initiative to be constructive even though what
was done to him/her or what he/she has done to others was not constructive. The role of the mediator
will be as a counsellor who conducts individual counselling with the victim and the offender and may
conduct group counselling with significant others of each side. This step is important preparation forrestoring relationships because it will help the victim and the offender to speak to and confront eachother with caring.
Step 2 Recognizing the injusticeThis step begins when all parties, who are participating in the restorative meeting, describe theirexperiences and feelings and have them recognized by the others. The role of the mediator in this stepis to facilitate the process by asking the listeners,“what did they hear?”and stimulate them to express
what they heard,“tell him/her what you have heard.” This process will help both parties to hear andto understand others as well as themselves from listening to each otherʼs experiences. However,if thevictim and the offender are not in the mood to listen to each other, they will not hear what the otherhas just said,and when they describe their experiences,they will describe only the part that is right forthem. If this happens in the meeting,there is a tendency that the meeting will stop. Usually the victim
and his/her significant others will be the person who asks to stop the meeting and they may need tohave group counselling with the mediator for their emotional support and empowerment.
Step 3 Opportunity for restoring equity
When each person listens to the other and hears what that person has just said,it means that person
begins to give the opportunity to listen to oneʼs self as well as to others. Consider a part of an offender,
he/she will have a chance to listen to the victimʼ
s feelings and the impact that he/she perceived fromthe offenderʼs action. It will help the offender to realize the victimsʼneeds―material, financial,emotional, and social (including those personally close to the victim who may be similarly affected)
needs. It will give an opportunity to the offender to restore a good relationship to the victims and theirsignificant others who also have had the impacts from the offence. The offender can assume active
responsibility voluntarily for his/her actions to the victims rather than simply being dealt out punishment. On the other hand, the victims will have an opportunity to express their feelings and theirinvisible impacts to the offender. The restorative process will enable the victims to the reach the stage
of“letting go”. Such feelings will help the victims to give the offender the chance to compensate/makereparations to the victim and to prepare him/herself to return to live in community. The output of thisstep will be an agreement between the victim and the offender. When the offender begins to assume
active responsibility for his/her actions, the victim will begin to experience forgiveness, and if theagreement has been kept,trust will grow. The role of the mediator in this step will be the facilitatorin group counselling between the victim, the offender and their significant others.

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Step 4 Clarifying future attention
This step is to change the way things were done in the past so that the violation or injustice will
not happen in the future. The offender will perform what he/she has agreed to do in the “writtenagreement”. When agreements have been kept and have been acknowledged as having been kept,trust
will grow more. In a contrary way,if the agreements have not been kept,trust will be diminished. The
important step in this process will include follow-up and accountability. The role of the mediator will
focus on individual counselling (if there is any)to empower the victim and the offender and to provide
psychological support for each individual who is involved in the agreements.
Counselling seems to play a major role in practicing restorative justice;it is embedded in every step,
especially in step one:the commitment to be constructive. If this step is satisfied, the victim and theoffender will each understand themselves and the situation,and will realize what he/she really wants
to do,which may or may not be to have the meeting. Whatever each decides,the mediator accepts thedecisions with respect. Counselling is a process in which the counsellor assists the individual to makeinterpretations of facts relating to a choice,plan,or adjustments which he/she needs to make (Smith,
1955, p. 156).
For practicing restorative justice which focuses on love,trust and forgiveness,the mediator should
be more concerned about voluntary participation. Counselling is the process that will help eachindividual to understand oneself and the environment and be able to decide which choice is the best for
him/her. The mediator needs to know and be able to apply counselling techniques specifically in thestep of preparing for restorative justice practice.
(c) Mediator training curriculum
The curriculum includes the restorative justice approach and theory, the counselling technique on
restorative justice practice and focuses on practice by role-playing, based on a learning-by-doing
approach. The training curriculum includes 3 hours of lectures on restorative justice approaches, 3hours of lectures on counselling techniques concerning restorative practices and 18 hours for practicetraining which focus on role-playing.
(d)Human rights in restorative justice approach
In 2007, research entitled “Human Rights in Restorative Justice Approach”was conducted byAngkana Boonsit, Puangtip Nuankhaw and Rachada Imvittaya, probation officers at the Probation
Development Section,Department of Probation. The research was begun in 2006,and the objective wasto evaluate the mediatorsʼworking in the restorative justice process concerning the rights of victims,
offenders and their networks in restorative justice procedure and (2)to study the benefit of restorative
justice. Qualitative research was conducted,and victims,offenders and their networks,who participated in the restorative justice conference run by probation officers during the pre-sentence investigation
stage, were interviewed as sample populations. The research found that both victims and offenders
have the right to:Consult with probation officers concerning the restorative justice process.
The right to be informed:at the invitation stage,probation officers inform participants oftheirrights, the nature of the process and the possible consequences of their decision.
The right not to participate:the restorative justice process functions on a voluntary basis.
Neither the victim nor the offender should be coerced. At the invitation stage, probation
officers inform all parties that they have the right to decide themselves whether to join the
mediation process or not.
The right to choose the date and time for the mediation process.
The right to choose their network for the mediation process.
The right to cancel the mediation at any stage of the process, because it is conducted on a
voluntary basis.

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The right to set ground rules during the mediation stage.
The victims have the right to disclose their feelings and all effects of the crime which theoffender should know.
The offenders have the right to repair the harm that they caused.
All of the above are discussed in the Handbook on Restorative Justice Programmes by the United
Nations Office on Drug and Crime (UNODC)in 2006.
(e) Knowledge management of restorative justice at the Department of Probation
In 2008,four years after restorative justice was implemented at the Department of Probation,there
were 379 trained mediators who worked in the probation office around the country and 9,632 cases in
the restore-relationship conferencing. The workshop for knowledge management took place from28-29 August 2008. The participants were 30 selected mediators to share their knowledge and experience on best practices in each situation and in each local culture. The important result was that themediators need full knowledge of restorative justice approaches and counselling technique skills. Some
issues of the knowledge management are explained below.
(f) Effectiveness of the restorative justice process on crime victims and adult offenders in Thailand
In 2010, Boriboonthana, Y. and Sangbua-ngamlum, S., probation officers at the Research andDevelopment Center, Department of Probation, Thailand, conducted further research which drew on
the research findings of the restorative justice process for adult offenders in Thailand run by probation
officers during the pre-sentence investigation stage. The evaluation study was conducted in 2009,
aiming to analyze the effect of restorative justice on victims and offenders. The researchers investigated various key aspects, such as the rate of satisfaction and perception of fairness, changing attitudesof victims and offenders,responses to the victimsʼneeds,offendersʼaccountabilityand recidivism rates.
Factors associated with these aspects were also analyzed. A quasi-experimental research design wasapplied and the research findings showed that victims and offenders participating in the restorative
justice process were significantly more satisfied with almost all evaluated outcomes than those who did
not. However,the study did not find any significant difference in the recidivism rate between offenders
in the experimental and comparison groups. Finally, the study found that two factors, i.e. victimʼ
sincome and the victim-offender relationship, were significantly related to the victimʼ
s satisfaction.
Victims who had low income were more likelyto be satisfied with the outcome than those who had highincome,and victims who previously knew the offender were more likely to be satisfied with the process
than those who did not.
C. Statistical Comparison between Juvenile Cases and Adult Cases
Table 1 number of FCGC cases in the Department of Juvenile Observation and Protection

138

Year

Total cases

FCGC cases

%

2009

44,786

4,686

10.46

2010

44,559

4,488

10.07

2011

25,867

2,301

8.90

2012

31,876

421

1.32

2013
(Jan.-Nov.)

35,996241

0.67

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Table 2 number of restorative practice cases in the Department of Probation
Year

Total cases

Restorative justice
cases

%

2009

76,880

1,281

1.67

2010

81,058

1,146

1.41

2011

86,756

844

0.92

2012

84,283

977

1.16

2013
(Jan.-Nov.)

114,714796

0.69

The tables above show that there are very few cases in which restorative justice was used.
Generally,a smaller percentage of adult cases use restorative justice when compared to juvenile cases.
This is true even though there is legal support.

III. LESSONS LEARNEDBased on my experience as a trainer,mediator and researcher,there are some important aspects ofrestorative justice that should be remembered:
The key point of restorative justice is to restore relationships between victim(s) andoffender(s). So,it is necessaryto find out who is/are victim(s)and offender(s)in the restorative
justice approach because it relates to agreement making between victim(s) and offender(s).
Restorative justice has two types of victims:direct victims and indirect victims. Sometimes,
we found that the victim in the criminal justice system is the offender under the restorative
justice approach,and the offenderʼ
s network is the indirect victim. So,the agreement will bedone between the victim and the offender in the restorative justice approach,even though they
may have different roles within the criminal justice approach.
M ediation is only one step in the restorative justice process as a method to repair harm, toreconcile and to restore relationships.
M ediation in the restorative justice approach should be neutral, respectful of each party andon a voluntary basis. So,some local mediation programmes are not mediation following therestorative justice approach.
Restorative justice is the way to restore relationships which were damaged by crime. However,restorative justice is concerned with culture, social context and the conventional criminal justicesystem. It is also important to distinguish restorative justice from other diversion programmes byplacing the utmost importance on restorative processes where victims should be placed at the centerof attention with appropriate participation from the offenders.
For growth and sustainability,law and management are very important. Laws are useful to define
the rights and responsibilities of victims,offenders,officials and others who may concerned. M anagement is useful in practice and to achieve justice for all. So, each country should find its own recipe
which properly balances the conventional role of criminal justice with the restorative justice approach.
REFERENCES
Boonsit, Angkana, Restorative Justice in Thailand; Lesson Learned, presented at the “Restorative
Justice in Emerging Countries”,Ancillary Session at the 11th United Nations Congress on Crime
Prevention and Criminal Justice, Bangkok, Thailand, 2005.

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Boonsit, Angkana, NuanKaew, Puangtip, Im-vittaya, Rachada, Human Rights in Restorative JusticeApproach,Bangkok:the Department of Probation,Ministry of Justice,Thailand,2008 (in Thai).
Boonsit,Angkana,NuanKaew,Puangtip,Im-vittaya,Rachada,Knowledge Management in Restorative
Justice in the Department of Probation, Bangkok: the Department of Probation, M inistry ofJustice, Thailand, 2008 (in Thai).
Boriboonthana, Yodsawan & Sangbua-ngamlum, Saengduean, Effectiveness of the Restorative Justice
Process on Crime Victims and Adult Offenders in Thailand, Bangkok: the Department of
Probation, Ministry of Justice, Thailand, 2008 (in Thai).
Claassen, Ron, A Peacemaking Model: A Biblical Perspective,
http://www.fresno.edu/pacs/docs/APeacemakingM odel.pdf>.
Claassen,Ron,Two Useful Models for implementing Restorative Justice,AC Resolution v.3 n.4 Summer
2004.
Piemyat, Suwatchara & Boonsit, Angkana, Counseling: The Embedded Process in Restorative Justice
Practice, presented in the Asian Applied Psychology International Regional Conference;AAPIRC, November 14th-16th, 2005, Bangkok, Thailand.
Roujanavong,Wanchai,Restorative Justice:Family and Community Group Conferencing in Thailand,presented in the IIRPʼ
s 7th International Conference on Conferencing,Circles and other Restorative Practices, November 9th-11th, 2005, M anchester, UK.
Zehr, Howard, Changing Lenses: A New Focus on Crime and Justice, U.S.A.:Herald Press, 1995.

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THE THAI CRIMINAL JUSTICE SYSTEM AND PROTECTION FOR
VICTIMS OF CRIME AND USE OF RESTORATIVE JUSTICEPROGRAMM ES
Chirawan Khotcharit

I. THE HISTORY OF THE THAI CRIM INAL JUSTICE SYSTEM
A. The Sukhothai, the Ayutthaya and the Thon Buri Periods
The Thai legal system and the judiciaryʼ
s history started between AD 1238 to 1350 (the Sukhothai
period)when the King, himself, adjudicated all disputes between his citizens. Later in the Ayutthaya
period (AD 1350 to 1767), the Thai legal system was developed by introducing the Dhammasattham ―the ancient Hindu jurisprudence―as the law code of the realm. The Dhammasattham was a fundamental law dealing with both civil and criminal matters. Unfortunately,during the reign of King Taksin
the Great (AD 1767 to 1782), the country was faced with a series of battles; therefore, the law andjudiciary system had little improvement.
B. In the Early Rattanakosin Period (Absolute Monarchy)
Later, at the beginning of the Chakri Dynasty in 1782, the Law of Three Seals was written,as thecode law,by revising the laws derived from the Ayutthaya period. In the reign of King Rama V,there
was important development of the legal and judiciary system when the country was required tostandardize the law and legal system equally to foreign nations. The first criminal law code wasenacted in 1908,and drafting of the Civil and Commercial Code was started but was not completed until
the reign of King Rama VII.
C. In the Present Rattanakosin Period (Democracy)
The Revolution of 1932 changed the form ofgovernment from an absolute monarchyto a democracy
and had an important effect on the Thai legal and judiciary system. The Constitution B.E. 2475 (AD1932) established the powers, functions and duties as well as the structure of the Executive, theLegislative and the Judiciary. The Constitution of the Kingdom of Thailand,B.E.2540 (1997)has hada significant impact on the reorganization of the political system as well as the judicial system ofThailand.
D. The Courts of JusticeBefore 1997, there were two types of Courts in Thailand;however in 1997, a significant change in
the Judiciary power had been made. Under the 1997 Constitution (and the 2007 Constitution),there were(and now are)four types of courts:the Constitutional Court,the Courts of Justice,the Administrative
Courts and the Military Court. The Courts of Justice are classified into three levels comprising the
Courts of First Instance, Courts of Appeal and the Supreme Court. Courts of First Instance arecategorized as general courts, juvenile and family courts and specialized courts, called the Central
Intellectual Property and International Trade Court, the Central Bankruptcy Court, the Central Tax
Court and the Labour Court. The general courts are ordinary courts which have authority to try andadjudicate criminal and civil cases.
E. Judges of the Court of Justice
There are four types of judges in the current Thai judicial system, namely, career judges, senior
judges, lay judges, and Kadi (Datoh Yutithum). Firstly, career judges are recruited by the Judicial
Commission and are appointed by His Majesty the King. In order to be an eligible candidate for career
judge one has to be of Thai nationality, at least 25 years of age and must have earned a BachelorʼsJudge, Thon Buri Criminal Court, Court of Justice, Thailand.

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degree in law, passing the examination of the Thai Bar Association, and having not less than twoyearsʼworking experience in the legal profession. A candidate must pass a highly competitive
examination given by the Judicial Commission. Once the candidates are recruited, they have to be
trained as judge-trainees for at least one year. Those candidates who complete the training withsatisfactory results will be approved by the Judicial Commission and tendered to His Majesty the Kingfor royal appointment to be a junior judge. A solemn declaration before His Majesty the King is also
required before taking office as a judge. Secondly,senior judges must be at least sixty years ofage andhave performed judicial services for at least twenty years and also pass the assessment of healthperformance, according to the Act on Rules for Appointing and Holding Senior Judge Position, B.E.
2542 (AD 1999). Judges who are qualified and wish to be senior judges must express their intention inwriting to the President of the Supreme Court. Senior judges are able to remain in office until theyreach seventy years of age. A senior judge cannot be appointed to hold the office of court executive,
such as a Chief Justice, or even to perform duties in place of such person. Thirdly, Lay Judges who
are laymen recruited separately to perform duties in the Juvenile and FamilyCourts,the Labour Courts
or the Central Intellectual Property and International Trade Court. The reason for having lay judges
is to have an experienced person or an expert in a relevant field who can work closely with a career
judge in adjudicating cases. Unlike a career judge,becoming a lay judge is not a permanent position.
Each lay judge holds his or her office for a term of years depending on which specialized court he or
she is working for. Forty Kadi (Datoh Yutithum),according to the Act on the Application of Islamic
Law in the Territorial Jurisdictions of Pattani, Narathiwat, Yala, and Satun Provinces, B.E. 2489
(1946), the Islamic Law on Family and Succession except the provisions on prescription in respect of
succession shall apply instead of the Civil and Commercial Code in adjudicating civil cases concerning
family and succession of Muslims. In such cases,career judges and a Kadi,who is an expert on Islam,
will sit on the bench together to adjudicate the case to comply with the principles of Islam. A Kadi
must not be less than thirty years of age, know the Thai language at the prescribed level, and haveknowledge of Islam to enable him to apply the Islamic laws relating to family and succession.

II. THAI CRIMINAL JUSTICE SYSTEM
Concentrating criminal cases in Thailand, the prosecution process is the responsibility of several
government organizations:the Royal Thai Police, the Office of the Attorney General, the Courts ofJustice, and the Ministry of Justice. Almost all criminal cases are filed by the State, the publicprosecutor, against a person or organization who violates a penal law. Which acts or omissions are
considered as crimes or offences must be identified by the Penal Code. Special penal laws,for example,
the Narcotics Control Act B.E. 2522 (AD 1979), the Land Traffic Act B.E. 2522 (AD 1979), and the
National Forest Act B.E.2507(AD 1964),however,can identify and impose punishment on one who doesor omits something that is considered as a criminal act. Even though an act is socially or morally
wrong,no criminal liability is incurred until that act is classified as a crime under the law. The reason
why the public prosecutor―not the private injured person or the victim―sues the offender,is because
crimes are considered offensive to peace and order in society. The victim is considered only as awitness for the State to prove the criminalʼs guilt. This long process starts with the victim having to
go to the Police to report of a criminal incident. The Police then proceed to investigate the alleged
crime and report their findings to the Office of the Prosecutor. Later,the Office of the Prosecutor files
the appropriate criminal case with the Court. Courts have jurisdiction in the district where an offence
has been committed, alleged or believed to have been committed, or where an accused resides or isarrested, or where an inquiry official conducts an inquiry. After the court hears the witnesses of theprosecution and the defence,it then renders its judgment. Due to the fact that the victim of the crimeis also affected by the offender and the overwhelming number of criminal reports, the Criminal
Procedure Code empowers the victim of the offence, a private citizen, to hire lawyers to directly filethe criminal case in court,instead of reporting it to the police. In the Thai justice system,only judges
decide criminal cases;the jury system does not apply in this country.
A. The Crime Victimʼ
s Right To Be Compensated
Early in history,criminal law was essentially law for victims who were the center ofthe administration of criminal justice. For example,compensation and restitution were criminal sanctions aimed atproviding redress to the victims. However, the criminal justice system had changed to a system of
retributive justice and became offender centered―a system that only put emphasis upon guilt and142

156TH INTERNATIONAL SENIOR SEM INARPARTICIPANTSʼPAPERS
punishment. Crime victims are recognized as the rights of the accused and,at best,valuable witnesses
for the prosecution of the stateʼs case; on the other hand, at worst, they are sometimes viewed as
impediments to the prosecutorial process. The concept of crime as a victim redressing has been
replaced by the notion that crime is an act against the well-being of the state. Therefore, society,including crime victims,seeks the most severe possible punishment for offenders. Victims believe thatthe longer offenders are in jail,the happier the victims will be in the future,but such severe punishmentoften leaves victims feeling empty and unsatisfied because a retributive criminal system cannot
compensate their losses,ease their fears and insecurities,restore their confidence or heal their physicaland emotional wounds. On the other hand,after serving their time in the prison,offenders often returnto the community even more antisocial than before and tend to recidivate.
The Thai criminal justice system recognizes the crime victimʼ
s right to be compensated by theoffender. According to Section 43 of the Criminal Procedure Code, public prosecutors―only in casesof theft, snatching, robbery, piracy, extortion, cheating and fraud, criminal misappropriation andreceiving stolen property―may seek restitution on behalf of the victims. Later in 2005,the Criminal
Procedure Code was amended;Section 44/1 grants to authority to the public prosecutor to have theright to claim compensation for loss of life, bodily or mental harm, injury to person, impairment of
reputation or proprietary damage from the crime offenders on behalf of the crime victims or injured
people. Before this amendment, crime victims had to file complaints with the civil court for suchcompensation at their own expense;therefore,many of them tended not to pursue their rights. (Crime
victims also can apply for compensation awards to the Victim Compensation and Restitution Board(VCR), Ministry of Justice, according to the Victim Compensation and Restitution for the Accused
Person Act and the Witness Protection Act B.E.2544 (AD 2001)).
B. Crime VictimsʼRights in Domestic Violence Offences
The problem of domestic violence has been increasingly realized and acknowledged in Thai society.
Domestic violence cases should not be conducted using the conventional criminal judicial process
because it does not take an interest in the harm suffered by the victim and the community and cannot
prevent offenders from recommitting their crimes. Therefore,Thailand enacted the Domestic Violence
Victim Protection Act to handle domestic violence cases. The Domestic Violence Victim Protection
Act,B.E.2550(AD 2007),which deals with any act committed with an intention to cause bodilyor mental
harm,or an act committed intentionally in a manner that may cause bodily or mental harm,to a family
member or any coercion or undue influence conducted with a view to make a family member dosomething,refrain from doing something or accept any act illegally,has some kind ofprotection which
is different from the general criminal cases. For example,under section 6,the domestic violence victim
has right to get treatment from a physician and to have a consultation with a psychiatrist,psychologist
or social worker. If the domestic violence victim would like to file a complaint, he or she can file acomplaint on his or her own or allow the competent official to file a complaint on his or her behalf. In
order to respect the domestic violence victimʼ
s privacy rights,section 9 orders that in domestic violence
cases,no person shall publish or make known to the public in anymanner whatsoever anypicture,story
or any information which may cause damage to the person who commits an act of domestic violenceor to the domestic violence victim. As mentioned above, domestic violence cases are different fromgeneral criminal cases because of the relationship between the offender and the victim. These kindsof cases need to have some special court orders. Therefore,section 10 orders that the domestic violence
victim has the right to ask the competent official to impose provisional remedial measures or means
in favour of the domestic violence victim,such as an order requiring the person who commits domestic
violence to receive a diagnosis from a physician, to pay financial assistance in accordance with his
station in life,not to enter into the residence of the family or to stay close to any person in the family,
as well as an order concerning care of his or her child. Thon Buri Criminal Court established thePsychosocial Clinic. This Clinic employes psychosocial clinic consultants who have a duty to give a
consultation for domestic violence offenders and victims. Psychosocial clinic consultants are lay
persons with psychological or social-work experience, and they must attend the psychosocial clinicʼ
s
training.
C. Child Offenders, Victims and Witnesses
The Thai criminal justice system is concerned about children who have been involved in criminalcases as offenders, victims or witnesses. Therefore, section 133 bis of the Criminal Procedure Code143

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orders that in cases of offences punishable with maximum imprisonment of three years and upward,orin the case of offences punishable with fewer than three yearsʼimprisonment and the injured person or
witness who is a child so requests,or in the case of causing bodily harm to a child not yet over eighteen
years of age,the examination of a child victim or witness shall be made separately in a place suitablefor him or her, and a psychologist or social worker, a person requested by the child and the publicprosecutor shall participate in such examination. At trial, section 172 ter of the Criminal Procedure
Code orders all courts to provide a suitable place for child witnesses and requests that a psychologist
or social worker must attend to help the child witness during the examination-in-chief, crossexamination, and re-examination.
D. M ediation Center and Reconciliation Center
The M ediation Center has authority to mediate compoundable offences when the crime victim or
injured person files the complaint by himself or herself, while the Reconciliation Center deals with
non-compoundable cases in which the State, through a public prosecutor, brings a lawsuit before thecourt. The Medication Center and Reconciliation Center allow offenders, victims, and their family
members to participate in every session. During the mediation and reconciliation process,the offenderand victim will participate in a face-to-face victim-offender meeting, including both joint and caucus
sessions. The mediation and reconciliation system has a special concern for the needs of crime victims.
The crime victim has a chance to express his or her emotion, agony and insecure feelings as well as
to ask for compensation and restitution from the offender. At the same time,the offenders are able toshow their responsibility,sympathy and regret. During the mediation process,a mediator will conduct
and facilitate both parties to express their real interest and finally get to the agreement. On the other
hand, during the reconciliation process, a judge has a duty to explain the charge,the accusedʼs rights
and liability and victimʼ
s rights. Unfortunately,the mediation and reconciliation process are alternative options.
E. Courtroom without Directly Confronting the Accused
In general,the trial and taking of evidence must be conducted in open court and in the presence of
the accused. A witness has to give evidence in front of the accused. The judge, public prosecutor,
defendant and defendantʼ
s attorney shall be present in the courtroom. A criminal trial shall be madewith direct confrontation of the witness and the accused. However, in some cases, the originalcourtroom is not suitable for adult witnesses who feel fear or embarrassed by the accused. Thon Buri
Criminal Court is concerned about the rights and safety of witnesses. Therefore,Thon Buri Criminal
Court established the Courtroom without Direct Confrontation of the Accused. In this courtroom, awitness gives testimony in the courtroom where the judge,public prosecutor and defendantʼ
s attorney
are together but a witness will not confront the accused. Moreover,there is the Witness Room wherea witness can rest and relax before and after giving testimony. This type of courtroom is suitable fora witness who is a child under 18 years of age, women and the elderly who are afraid or ashamed of
the accused. Up until now,there was only one courtroom without direct confrontation of the accusedin the Kingdom of Thailand.

III. CHALLENGES FOR THE THAI CRIMINAL JUSTICE SYSTEM
From my experience as a Thon Buri Criminal Court judge, the challenge for the Thai criminal
justice system, in terms of protecting victimsʼrights and applying Restorative Justice, firstly is theattitude of crime victims and judges. Secondly,as mentioned above,the victim and society desire theseverest punishment possible for the offender,which is actually a burden to the court and the criminal
justice system. Thirdly,the Mediation and Reconciliation process concentrates only on crime victims
and offenders but leaves the whole community out of the process, and the victims usually refuse thecourtʼ
s efforts to have the victim meet with the offender, or they only reluctantly participate in the
mediation and reconciliation process. Even if the concept of Restorative Justice has been introduced
to the juvenile criminal justice system since 2010, the criminal justice system has not fully applied
Restorative Justice in its system.

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The Courtroom without Direct Confrontation of the Accused

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The Witness Room147

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The Courtroom for Child Witnesses

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REPORTS OF THE SEM INARGROUP 1SUPPORT FOR VICTIMS
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Adviser

M r. Philip Kaya WELIA
M r. OTA Tomohiko
M r. AKAGI Kazuo
M s. Chirawan KHOTCHARIT
M s. Veronica Guadalupe URIARTE
FLORES
M r. DIALLO Amadou Tanou
M s. KIKUCHI Shizuka
M s. TAJIMA Kayoko
Prof. M IO Yukako(Papua New Guinea)(Japan)(Japan)(Thailand)(El Salvador)(Guinea)(Japan)(Japan)(UNAFEI)

I. INTRODUCTION
In the framework of group workshops during the 156th International Senior Seminar held by
UNAFEI and sponsored by JICA from 13th January to 14th February 2014, Group 1, composed ofparticipants from Japan,Papua New Guinea,Thailand,El Salvador and Guinea,focused its discussions
on the following points:a) Access to the justice system by victims,b) Victim compensation and restitution, andc) Prevention against secondary victimization and revictimization.
With a large consensus, the group elected Mr. Philip Welia as Chairperson, M r. Ota as cochairperson, M r. Akagi as rapporteur and Ms. Chirawan as co-rapporteur.

II. SITUATION OF SUPPORT FOR VICTIMS
In criminal procedure,protecting the perpetratorʼ
s rights has been considered most important. On
the other hand, the victimʼ
s rights have not been focused on much. Often the victims are required toparticipate in the criminal procedure for the case,even though the victim does not want to speak about
what happened to him (or her). Victims have no fault in the criminal case. However they have a hardtime talking about the case many times and sacrifice their precious time. Therefore,criminal justicesystems and organizations should pay more attention to protecting “innocent”victims.

III. SUMM ARY OF THE DISCUSSION
A. Access to the Justice System
1. Specific Issues Preventing Crime Victims from Accessing the Justice System in Each Country
First of all,all participantsʼcountries share some common problems,such as lack ofman power andfinancial support from their governments,the huge caseload which affects the final court decision,and
also the trustworthiness of the criminal justice system as a whole. Also,the crime victimʼ
s information
is often published in newspapers and news programmes on national television. In El Salvador, thegang-related offenders deter crime victimsʼaccess to the justice system. In most gang-related crimes,
the crime victim has been intimidated not to report the crime to the police, and they are also
discouraged from giving testimony in court as a witness. Secondly,victims of sexual offences tend not
to report said incidents to police because of embarrassment.

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2. The M easures to Ensure that All Victims Have Access to the Justice System(a)Informing victims of their rights and developments in the case
The group agreed that victims have to be informed about their rights, and all criminal justiceorganizations should educate the general public via mass media and national or organizational
campaigns.
(b)Victim involvement in decision-making
The crime victimʼ
s right to withdraw the ongoing case is respected in many criminal justicesystems among the participating countries;however,if such cases are considered as crimes against
the State,the crime victimʼ
s request to withdraw the case does not jeopardize the public prosecutorʼ
scomplaint.
(c) Victim participation at trial
The group noticed that in general the crime victim has his or her right to participate at trial but
as an observer and not as a victim. However,in Japan and Thailand,the victim may ask questions
with the public prosecutorʼ
s advice.
B. Victim Compensation and Restitution
1. Current Situation in Each Country
The current situation in all participantsʼcountries is similar:when the victim appeals for restitution
in court, the court can order the offender to pay it.
2. State Compensation
The group came to a consensus that a State compensation system is beneficial to the victims,eventhough it is difficult to set up, because of the financial difficulty. Victims should be compensated by
the perpetrator,but sometimes the perpetrator is not able to pay full restitution. The victims have to
pay for doctorsʼfees,transportation costs and other expenses. For these reasons,State compensation
systems should be adopted by the governments. For example,in January 1981,the Law for Providing
Compensation to Innocent Victims of Crime (Japanese law) was put into operation for survivors,
disabled and severely injured persons.
3. Restitution by Offenders to Victims and to the Community
Restitution should be paid by the perpetrator. For the community, the perpetrator indirectly
contributes after being rehabilitated in prison by learning job skills, which are intended to help
offenders avoid criminal activity and thus reduce recidivism.
C. Preventing Secondary Victimization and Revictimization
1. Current Situation in Each Country
The current situation in all participantsʼcountries is similar because the crime victim has to answer
the same questions repeatedly during the criminal justice process from police officers,public prosecutors, judges and physicians who gave victim the clinical (or medical)check-ups. Moreover, the mass
media is always longing to present in depth news about crime incidents as soon as possible. There aresome distinguished justice systems in Guinea and Papua New Guinea where the community plays acrucial role in prevention revictimization. “An eye for an eye”revenge seems acceptable for suchjurisdictions with tight and strong community relationships.
2. Information Protection Systems for Victims
In the investigation process, the information protection system for victims should be managed bysealing the victimʼ
s information; however, in some cases disclosure of such information cannot be
avoided. Trials have to be in public, but when the victim makes a request, the trial can be closed tothe public.
3. Ensuring Safety of Victims
As a witness,the crime victim is concerned with proving the defendantʼ
s guilt. The police officers
and courts will escort and protect the victim only for important cases or when he or she makes sucha request. However, all participants agree that crime victims should be protected from any further

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harm. NGOs can play an important role to ensure the safety of victims involved in sexual offences ordomestic violence, and also with the financial support at the governmental and international level.
This protection measure can be used in every country.
4. Prevention against Revenge by the Perpetrator
In domestic violence offences and stalking cases, in some participantsʼcountries, such as Japan,
Papua New Guinea and Thailand, the court has authority to issue a restraining order against theoffender;however, some participantsʼcounties do not implement such orders. In cases in which thesuspect or defendant is on bail, he or she must abide by the courtʼs restraining order as well. One of
the effective prevention measures against revenge by the perpetrator is implementation of a rehabilitative justice system instead of a retributive justice system and using this restraining order. In
some African countries, revenge by the perpetrator is very rare because the community supports thevictim and his or her family.
5. Alleviation of Burden and Distress of Victims
The group agreed that collaboration has to be on two levels:between intergovernmental organizations and private organizations as well. “One-stop service”,for example,in Japan has been recognized
as a channel to alleviate the crime victimsʼburdens. The“
One-stop service”model is a practical systemand should be adopted by other countries.
6. Training for Police Personnel, Prosecutors and the Judiciary
Training on the topic of “Victimization”will broaden the knowledge of all criminal justiceorganizations and allow such organizations to feel empathy for crime victims. This kind of feeling andunderstanding enables criminal justice professionals to treat victims properly. The training should beheld at least yearly and should invite victims to participate and share their emotions.

IV. CONCLUSION AND RECOMMENDATIONS
To realize a safe society without crime,criminal procedure should be done properly. It is important
to obtain victim cooperation with the police or prosecutorʼ
s investigation and to testify in court what
happened to him or her precisely. If the perpetrator had not committed the crime, the victim would
never have to sacrifice his or her time,emotions or embarrassment for the investigation and the trial.
But the judicial system requires victimsʼcooperation to punish the perpetrator appropriately,with thegoal of creating a society without crime. Without victimsʼcooperation, the judicial system does notwork and people will start to bypass the judicial system,and maybe even the government. As a result,
we should use our best efforts to support victims and to create a society without crime. We hope theresults of this discussion contribute to the creation of safer communities, even world peace.

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GROUP 2
ISSUES CONCERNING THE INTRODUCTION OF RESTORATIVEJUSTICE PROGRAMMES IN CRIMINAL AND JUVENILE JUSTICESYSTEM S
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Adviser

M s. Cyntia Cristina DE CARVALHOE SILVA
M r. Manase ITO
M s. Angkana BOONSIT
M r. Bhirawa Braja PAKSA
M r. Alex NDRASAL
M r. Atsuo KOBAYASHI
M s. Reiko OTA
M r. Ryo TSUNODA(Brazil)(Japan)(Thailand)(Indonesia)(Papua New Guinea)(Japan)(Japan)(UNAFEI)

I. INTRODUCTION
This paper aims to briefly present some notions of restorative justice in criminal cases,and it shows
the results of the discussions among the participants of the 156th Senior Seminar of UNAFEI.
The definition of restorative justice(“RJ”)programme utilized is the same as in the United Nations
Basic Principles on use of restorative justice programmes in criminal matters ― restorative justiceprogrammes means any programme that uses restorative processes and seeks to achieve restorative
outcomes. Restorative process means any process in which the victim and the offender, and, whereappropriate, any other individuals or community members affected by a crime, participate together
actively in the resolution of matters arising from the crime, generally with the help of a facilitator.
Restorative processes may include mediation, conciliation, conferencing and sentencing circles.
Restorative outcome means an agreement reached as a result of a restorative process. Restorative
outcomes include responses and programmes such as reparation, restitution and community service,
aimed at meeting the individual and collective needs and responsibilities of the parties and achieving
the reintegration of the victim and the offender.
Initially,we present an overview of restorative justice programmes in each participant country,assuch,Brazil,Japan,Indonesia,Papua New Guinea and Thailand. After that,we discuss the implementation of new restorative programmes in each participating country. Finally, we show the results ofour group discussions about the issues and challenges of restorative justice in an effort to improve therestorative programmes in the participating countries.

II. ESTABLISHED RJ PROGRAMM ES IN EACH PARTICIPANTʼS COUNTRY
A. Brazil
In Brazil,the RJ programme is handled by Special Criminal Courts ― Juizados Especiais Criminais― and it was established by Law 9.099 in 1995,which aimed to increase the victimʼ
s satisfaction withthe criminal system and also to decrease the population of Brazilʼs prisons.
Law 9.009/95 established the restorative process, in which the victim and the offender participate
together and actively in the resolution of matters arising from the crime;and the restorative outcome,in which there is reparation and community service as penalties for crimes. Basically, the RJ
programme in Brazil adopts just the practice of victim-offender mediation (VOM). There is no
participation of the community or the family group conferencing, the circle sentencing or the peace
making circles.
Nowadays,the programme is implemented at the Court for adults (persons more than 18 years old),and it is applied to crimes considered petty;in some cases the initiative to begin the criminal process
belongs to the victim;in others,to public prosecutors. Furthermore,there is a limit to the application

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of the RJ programme ― for crimes with penalties that do not surpass 2 yearsʼimprisonment.
Criminal RJ procedure consists of the following:the victims of crime report the facts to the police,
who are responsible for investigating the case and making a final report. The whole investigation isthen sent to the Court and, depending on the crime, to the public prosecutor or the victims,who start
the process. Before the offender presents his defence,there is a conciliation with a facilitator trainedby the Court (a civil servant or a law student), in which the victim and the offender try to reach an
agreement about the reparation of damages. In case of agreement, it is necessary that the offenderconfess to the crime, because the Brazilian Federal Constitution presumes the innocence of theaccused.
B. Indonesia
There is no formal restorative justice programme in Indonesia. It has occured as an informal
proccess, and has never been recorded or noticed. This is because such a system or programme has
been in conflict with the legal system that has never been revised until now (Indonesia Penal Code,Act
number 8/1981). This means that it has been implemented without any formal legal process and will
not be upheld. Consequently, restorative justice programmes cannot be implemented formally.
However,this does not mean that restorative justice practices have never been applied on a practicalbasis in the community. These practices have involved traditional ways of resolving disputes, sometimes called alternative dispute resolution (ADR),which involves various parties in the community likeelders, religious leaders, academic parties, youth leaders, victims, victimsʼfamilies, offenders,
offendersʼfamilies, and even the police and low-level government officials. Restorative justiceprogrammes mostly have been implemented in cases of minor crime such as traffic accidents and theft,with some conditions,among others,being that the cases involve non-fatal injury and less physical or
non-physical damage. The conclusion is that there will be no formal system or programme on
restorative justice as long as the penal code has not been revised.
C. Japan
In Japan, there are no established RJ programmes based on specific law, but the following two
efforts are considered as possibilities of institutionalizing RJ. One of them is “System of conveying
victimsʼfeelings”in the probation and parole supervision stage based on the Offenders Rehabilitation
Act. This system is not only to convey victimʼ
s feelings about the damage inflicted on him/her to therespective probationer/parolee, but also to convey the offenderʼs feelings on the basis of the victimʼ
sfeelings. The other one is “Education from the victimʼ
s viewpoint”for juveniles and adults in Japanesecorrectional institutions. It teaches inmates how crime harms people and societies,physically,emotionally and financially. It is an opportunity for inmates to improve empathy toward crime victims andother people. It offers opportunities for interested crime victims to be involved in correctional efforts
to prevent further victimization in society.
D. Papua New Guinea
In the criminal justice system, RJ is implemented for both adults and juveniles mostly at thepresentencing and reintegration stages. It is implemented at this stage because:
The community must actively participate in the reintegration process;
The Probation Officers will have to implement programmes for offenders;
The Correctional Institutions will have to implement rehabilitation programmes for serious
offenders;andThe Organizational committees will have to implement rehabilitation programmes for juvenile
and minor crime offenders.
The RJ programmes initiated can only be implemented for adults who committed minor offences
and juveniles, and for adults who committed major offences and who are of good reputation andnon-dangerous to the community and victims.

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E. Thailand
1. Restorative Programme for Juveniles
The restorative justice programme for juveniles is called Family Community Group Conferencing(FCGC), and was conducted by the Department of Juvenile Observation and Protection (DJOP) since2004. The main objective of the programme is to restore relationships between juveniles,victims,andfamilies. FCGC has been implemented in the presentence investigation stage because the results or theoutcomes of this programme might be useful for a non-prosecution order.
In part due to a law supporting this practice, although not drafted for that purpose, this law, theJuvenile and Family Court and Procedure Act, has two relevant articles ― Articles 50 and 63 ― thatfacilitate the implementation of FCGC. In 2010,The Juvenile and FamilyCourt and Procedure Act 1991
was repealed;now, there is The Juvenile and Family Court Act 2010:Articles 86 and 87 support the
Restorative Programme Procedure.
2. Restorative Programme for Adults
The restorative justice programme for adults,called restore-relationship conferencing,is conductedby the Department of Probation (DOP). It has been implemented in the presentence investigation stage
for all crimes and is based on the partiesʼneed(s). The process is used on a voluntarybasis. The resultsof the conference are recorded in the presentence investigation report and are submitted to the court
for sentencing. There is no law to support this programme, but the programme is conducted as amatter of policy.

III. POSSIBLE NEW RJ PROGRAMMESIN EACH PARTICIPANTʼS COUNTRY
A. Brazil
Undoubtedly, Law 9.099/95 inaugurated a new philosophy in the criminal justice system in Brazil.
It encouraged and enhanced the participation of victims in criminal proceedings, as before it wascompletely ignored,serving only as means to an end. However,the RJ programme in Brazil could be
improved and widened for other stages of the criminal justice system.
Realistically,for instance,it is possible to apply the victim-offender mediation in the police station
for petty crimes (penalty up to 2 years of imprisonment),because it is the first stage of the conflict andthe parties are sensitive about the problem. Then,it could be offered as practical training for the police
officers to work as facilitators, helping the parties to reach an agreement together. Nowadays, toapply the RJ programme to all types of crimes,it is necessary to promote some changes in the criminal
law, because the Brazilian Federal Constitution adopts the principle of obligation, which blocks any
attempt to reach an agreement, because, if the legal requirements are satisfied, the prosecutor mustseek indictment.
This practice of RJ could be implemented also for the teenagers (persons 12-18 years old). However,
it would be more suitable for persons between 16-18 years old,because they are mature enough to takepart actively in the mediation.
At the beginning,there would be some difficulties to get used to this relatively new type of conflict
solution,not only for the victim and the offender,but also for the other parties involved,like the police
officers. But this initial difficulty can be overcome through many initiatives,like the qualification of
the professionals involved and educational and publicity campaigns.
B. Indonesia
FGC is the programme that seems more realistic to be implemented in Indonesia because thetraditional system still emphasizes “kinship”and “paternalism”. The elders and prominent figures still
have influence and important roles among the society even at the governmental level. However,it used
to be implemented in the pre-charge (police) where victims usually initially report the crime, and ofcourse only in specific crimes as long as it is not contradicted by the law. On the other hand, theamount of damages is considered (physical and non-physical), as well as the offenderʼs ability to pay
damages (with or without family support). We can use RJ for adults,juveniles,and those who do not

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deny having committed the crime as long as the offender is able to keep and submit to the substantive
goals of the restorative justice programme, such as restoring the victim, repairing the damage andparticipating in rehabilitation, providing an apology to the victim and her/his family, signing anagreement to commit no further crimes,and to paycompensation to the victim. The police are the most
responsible in correlation with their jobs. Police also are the frontline of maintaining security andpublic order;thatʼs why they have to ensure the situation remains stable, including by providing asuitable settlement, like the restorative justice programme. Regarding the facilitator, it must be aneutral person or party with no unwarranted interest in the outcome,and it must be someone with someinfluence among the community,like prominent figures or NGO representatives. Some issues that weshould anticipate are, first, that the programme does not conflict with the legal system;second, that
there will be no complaints in the future,especially from the victimʼ
s side;third,that the offender does
not feel excessively burdened.
C. Japan
In Japan, Public Prosecutors have great discretion to suspend prosecution of adult-offender cases
considering the seriousness of the crime and the situation after the offence, even if there is enoughevidence to obtain a conviction. Therefore,with regard to petty crime committed by an adult offender,
victim-offender mediation (VOM ) may be implemented before prosecution under the prosecutorsʼ
supervision. Facilitators should be a third party who has no interest in the offence other than publicprosecutors, because public prosecutors should be impartial.
The new programme of education from the victimʼ
s viewpoint is called “Message of Life”. This isan exhibition held under the auspices of non-profit organizations in Japan. The main exhibits are
life-size images of victims and their “shoes”as relics. The shoes are symbols of their lives. On thelife-size images of victims, messages are written by bereaved family members. Life-sized images ofvictims are called “M essengers”. Inmates appreciate this exhibition and recognize respect for the livesof crime victims. The M inistry of Justice will hold this exhibition in all prisons and juvenile training
schools from 2013 to 2018.
As concerning rehabilitation services, development of the “System of conveying victimsʼfeelings”
also may be implemented as one of the feasible countermeasures of VOM -type RJ.
D. Papua New Guinea
Restorative Justice for adults and juveniles emphasizes:
1. Restorative Justice Programmes:
Embody the values and practices familiar in traditional PNG societies;
Approach concerns balancing the needs of victims, offenders, and the community;
Draw on traditional and contemporary international practices to achieve RJ system.
2. Diversion Programmes:
Key strategies for juvenile justice reform programmes to divert juveniles away from theformal court system towards community-based work programmes and restorative justiceprogrammes;
The Public Order Act allows community leaders to have the offender work for the community. Mediation, welfare, vocational training, church fellowship programmes that are
ultimately aimed at changing the mindsets and behaviour of offenders;and
Courts used Probation Acts to impose community work sentences in two ways:a) Community work orders for first-time offenders and minor offenders on conditions,instead of imposing court fines;andb) Imposed community work on special condition for serious offenders of normal Probation
Order.
3. Under the Probation Act, community work for both adult and juvenile offenders.
Supervision is provided by Probation Officers or community-group volunteers.

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E. Thailand
Thailand has conducted the Restorative Programme, FCGC for juvenile and restore-relationshipconferencing for adults in the presentence stage. So, it is not necessary to implement anotherprogramme. But it should be expanded for implemention in all criminal justice organizations for all
crimes and all parties on a voluntary basis and based on the partiesʼneed(s). The restorative
programme should be done by trained mediators who are personnel within each organization.

IV. DISCUSSION
A. Introduction
In general,RJ can be applied to all crimes at all stages,for adult and juvenile offenders. However,such factors as the intention of the victim,the intention of the offender,the severity of the damages andthe relationship between the victim and offender can affect types of RJ programmes and the scope ofparticipants. We find dual purposes for RJ programmes:one is as a diversion (to avoid prosecution andimprisonment) and the other is to restore. Based on this aspect, we discussed the application of RJ
programmes to typical types of crime which are common in our countries.
B. Types of Crime
1. Domestic Violence
Definition: any form of violence between family members including physical and psychologicaldamages.
Summary of discussion
In cases of domestic violence, it is possible to apply VOM (victim-offender mediation) or FGC(family group conference),because this offence is more sensitive and the victims and the offender would
not feel comfortable with the communityʼ
s participation during the proceeding.
For petty cases, it is recommendable to fix the problem using RJ programmes as diversion at the
pre-charge stage where a mediator can talk with victims and offenders and make an agreement
together to avoid prosecution, because they have the possibility to restore their relationship and such
victims do not want the offenders to be prosecuted.
On the contrary,in hard cases,for example,causing serious injury,it is necessary to refer the caseto a prosecutor who decides whether to indict. In addition,when the offender has a habit ofaggression,
it is also recommendable to be referred to a prosecutor because these offenders tend to commit otherviolent crimes against their family members. Therefore,in these cases,RJ programme should be used
to promote restoration of family relationships or to facilitate divorce with consent at the postprosecution stage.
2. Rape
Summary of discussion:
In cases of rape, it is necessary to take account of maintaining dignity, personality and characterof victims as well as punishing offenders.
In most rape cases,the suitable restorative justice programme would be VOM,because rape victims
do not want to divulge their damages in front of many people. It is important to avoid secondary
victimization. In addition, when the rape occurred among family members, it is also possible to use
FGC, inviting victimʼ
s and offenderʼs immediate social networks, because family members have torestore their relationships as well.
Considering punishing rape offenders and preventing other rapes,rape offenders should be prosecuted. Therefore, basically, RJ programmes should be used as a means to give victims restitution,compensation and an apology from the offender, not as a means of diversion. However, some rape
victims do not want their cases to be prosecuted because they are too afraid of having their privacy
exposed in criminal court even if they cannot receive any compensation or an apology from theoffenders. Considering this situation, applying RJ programmes as a diversion at the pre-prosecution
stage would give a good chance to such victims to receive financial compensation.

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3. Traffic Accidents
Definition:A traffic accident is an incident that occurred on the street,involving a vehicle,person,
motorcycle, property, deliberately or carelessly, and that resulted in fatal/non-fatal casualties andphysical or non-physical damages.
Summary of discussion:
In cases of traffic accidents,implementing restorative justice in the pre-charge stage as a diversion
is relatively effective and suitable. For example, if the victim has suffered minimal physical orproperty damages,and if the victim will agree to a financial settlement from the offender,these cases
should be settled and should not be prosecuted. On the other hand, if the damage is serious, such as
death or serious injury,the case should be prosecuted. At the post-prosecution stage,the result of theagreement or settlement between an offender and a victim can be considered in the process ofsentencing and release on parole.
At any stage, VOM and CFGC (community and family group conference) programmes would besuitable.
4. M urder
Summary of discussion;
In murder cases,the bereaved family members become the victims,because the real victim is dead.
Implementing restorative justice in the pre-charge stage as diversion is difficult. Offenders should beprosecuted, because protection and maintenance of public security must be the responsibility of thestate.
As for murder cases between family members, and where the remaining family members do notwant the offender to be punished severely, the victimsʼfeelings can be considered in the process ofsentencing. Such offender should serve their sentences in the community under the supervision of his
family and community rather than in prison. In such a case, we can use CFGC restorative justiceprogrammes effectively.
Although the ultimate goal of restorative justice is to restore the relationship between victims andoffenders, victims and offenders cannot restore their relationships easily in murder cases. However
VOM and FGC types of RJ programmes can offer a chance to make offenders recognize the seriousnessof the damage that he/she caused to the victim,which is one of the important objectives of restorative
justice,and a chance to allow victims to ask the offender what the victims want to know. Restorative
justice has to fix society little by little to prevent further retaliation.
C. M ediator
The mediator is a non-party neutral person,who can be an officer or volunteer,with the responsibility of helping the parties involved in the restorative justice proceeding to reach an agreement. To
become a mediator,it is necessary to have knowledge about restorative justice approaches,psychology
and social work. Moreover, the mediator must be sensitive to understanding and listening to people
in different social and economic contexts.
In cases of domestic violence,rape and murder,the mediator must be specifically trained,because
he/she has to face difficult issues among parties involved.

V. CONCLUSION AND RECOMMENDATIONS
The implementation of RJ programmes still requires hard work in all of the participantsʼcountriesof the 156th Senior Seminar at UNAFEI. It demands, for instance, some change in the national
legislation and also in culture about the traditional criminal justice system.
However,RJ is not an entirely new concept. In some countries,similar concepts have already been
introduced. There are some communities where RJ has been used as a custom. We should work further
to improve our system where offenders try to recover the damages they caused to the victim and to thecommunity. But there are differences from country to country in terms of established systems as well

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as customary practices.
To implement RJ, first, the philosophy of RJ has to be understood, the results of the discussion
reported in this paper should be considered and a system that best matches the situation of eachcountry should be implemented. RJ gives rights to the victims, and also gives some duties andresponsibilities to the offenders and the community. Law enforcement agencies should support them.

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APPENDIXCOMMEMORATIVE PHOTOGRAPH
156th International Senior Seminar

UNAFEIThe 156th International Senior Seminar

Left to Right:
Above:
Dr. Gerd F. Kirkhoff (Germany)
4th Row
M r.Hayasaka (Staff),M r.Sugiyama (Staff),Mr.Fukuta (Staff),Ms.Suzuki(Staff),Mr.Tada(Staff)
3rd Row
M s.Iwakata (Staff),Ms.Nishi (Staff),Mr.Kobayashi(Japan),Mr.Paksa (Indonesia),Mr.Ito(Japan),M r.Akagi (Japan),Mr.Welia (Papua New Guinea),Mr.Diallo (Guinea),Ms.Hichiguro(Staff), M s. Yamada (Staff), Ms. Odagiri (Chef)
2nd Row
M r. Toyoda (Staff), Ms. Yamamoto (JICA), Mr. Ndrasal (Papua New Guinea), M s. Kikuchi(Japan),Dr.Angkana (Thailand),Ms.Khotcharit (Thailand),Ms.Ota (Japan),M s.Uriarte Flores(El Salvador), Ms. De Carvalho E Silva (Brazil), Ms. Tajima (Japan), Mr. Ota (Japan)
1st Row
M r. Ando (Staff), Prof. M oriya, Prof. Yoshimura, Prof. M io, Dr. Brian Steels (Australia),
Director Akane, M s. Betty PANG Mo-yin (Hong Kong), Prof. Tsunoda, Prof. Tashiro, Prof.
Hirose, M r. Schmid (LA)