ANNUAL REPORT FOR 2003
andRESOURCE MATERIALSERIES No. 63

UNAFEI
Fuchu, Tokyo, Japan

July 2004

Kunihiko Sakai
Director
Asia and Far East Institutefor the Prevention of Crime andthe Treatment of Offenders(UNAFEI)
1-26 Harumi-cho, Fuchu, Tokyo 183-0057, Japan

CONTENTS
INTRODUCTORY NOTE………………………………………………………………………... v
PART ONEANNUAL REPORT FOR 2003
Main Activities of UNAFEI………………………………………………………………………… 3
UNAFEI Work Programme for 2004……………………………………………………………... 14
Appendix………………………………………………………………………………………...…. 16
PART TWOWORK PRODUCT OF THE 123RD
INTERNATIONAL SENIOR SEMINAR“The Protection of Victims of Crime and the Active Participation of Victims in the
Criminal Justice Process Specifically Considering Restorative Justice Approaches”
Visiting Experts’ Papers• The Evolution of Restorative Justiceby Prof. John Braithwaite (Australia)……………………………………………..…. 37• Restorative Justice: Theories and Worries

by Prof. John Braithwaite (Australia) ……………………………………………….. 47• Victim Protection in Criminal Proceedings: The Victim’s Rights to Information,

Participation and Protection in Criminal Proceedings
by Ms. Sylvia Frey (Germany)…………………………………………………….…. 57• Victim Protection in Criminal Proceedings, Reparation and Damages
by Ms. Sylvia Frey (Germany)…………………………………………………….. 68• Restorative Justice: The Thai Experienceby Dr. Kittipong Kittayarak(Kingdom of Thailand) ………………………………... 78• A Brief Outline of the Current Situation on the Protection of Victims of Crimein Thailand
by Dr. Kittipong Kittayarak(Kingdom of Thailand)……………………………….... 87• Victim Support in the United Kingdom: Its History and Current Workby Mr. Peter Dunn (United Kingdom)…………………………………………………. 93• Victim Support in the United Kingdom: Victim Support Services in Detailby Mr. Peter Dunn (United Kingdom)………………………………………………... 101• Restorative Justice In Minnesota and the USA: Development and Current Practiceby Ms. Kay Pranis (U.S.A.)………………………………………………………… 111• Restorative Justice In Minnesota and the USA: Implementation and Outcomesby Ms. Kay Pranis (U.S.A.)………………………………………………………… 124iii

Participants’ Papers• Country Report: Pakistan

by Mr. Abdul Latif Khan (Pakistan) ………………………………………………. 136• Country Report: Papua New Guinea

by Mr. Noel Sarei (Papua New Guinea)……………………………………………... 142

General Discussion Paper………………………………………………………………... 153
APPENDIX……………………………………………………………………………………... 157

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INTRODUCTORY NOTE
It is with pride that the United Nations Asia and Far East Institute for the Prevention of
Crime and the Treatment of Offenders (UNAFEI) offers to the international community the
Resource Material Series No.63.
This volume contains the Annual Report for 2003 and the work produced in the 123rd
International Senior Seminar that was conducted from 14 January to 13 February 2003. The
main theme of this Seminar was, “The Protection of Victims of Crime and the Active
Participation of Victims in the Criminal Justice Process Specifically Considering Restorative
Justice Approaches”.
The need for the criminal justice system to protect victims of crime was specificallyrecognized by the United Nations by the adoption of the “Principles of Justice for Victims of
Crime and Abuse of Power” at the Seventh United Nations Congress on the Prevention of
Crime and the Treatment of Offenders in 1985. This focused the international community on
the domestic situation of member states in relation to the role, support and protection of
victims of crime.
The development of victim support and protection heavily influenced and added impetus to
the restorative justice approaches that had been growing. Countries are starting to create fresh
approaches to justice as well as looking to the history of their own societies where restorative
justice was once often practiced. In 2000 “The Vienna Declaration on Crime and Justice:
Meeting the Challenges of the Twenty-first Century” was adopted by the Tenth United Nations
Congress on the Prevention of Crime and Treatment of Offenders. This declaration provided
for the introduction of action plans to create mechanisms for restorative justice and theencouragement of restorative justice policies. Based on this Declaration, the working group on
the Commission on Crime Prevention and Criminal Justice drafted “Basic Principles on the Useof Restorative Justice Programmes in Criminal Matters”, as a United Nations standard forrestorative justice which was formally adopted by the U.N. Economic and Social Council in July
2002.
Although the United Nations has laid an important foundation and great progress has been
made in some countries, major parts of Asian, African and central and southern Africancountries do not have adequate systems for the protection of victim’s rights and the active
participation of victims in the criminal justice process. In this Seminar the participants held
seven general discussion sessions in which they identified and clarified problems and foundpractical solutions and more effective ways to protect victims and involve them in the criminal
justice process, particularly in regard to restorative justice. The essence of these discussions
was then crystallized in the recommendations of their General Discussion Paper.
In this issue, papers contributed by visiting experts, selected individual presentation papers
from among the Seminar participants, and the General Discussion Paper are published. I regretthat not all the papers submitted by the Seminar participants could be published. Also, I mustv

request the understanding of the selected authors for not having sufficient time to refer the
manuscripts back to them before publication.
I would like to pay tribute to the contributions of the Government of Japan, particularly the
Minister of Justice and the Japan International Cooperation Agency, and the Asia Crime
Prevention Foundation for providing indispensable and unwavering support to UNAFEI’sinternational training programmes.
Finally I would like to express my heartfelt gratitude to all who so unselfishly assisted in the
publication of this series; in particular, the editor of Resource Material Series No.63, Mr. Simon
Cornell (Linguistic Adviser).
July 2004

Kunihiko Sakai
Director of UNAFEI

vi

PART ONEANNUAL REPORTFOR 2003• Main Activities of UNAFEI• UNAFEI Work Programme for 2004
• Appendix

UNAFEI

MAIN ACTIVITIES OF UNAFEI(1 January 2003 - 31 December 2003)
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 1961 pursuant to an agreement between the United Nations and theGovernment of Japan. Its goal is to contribute to sound social development in Asia and the Pacific region bypromoting regional cooperation in the field of crime prevention and criminal justice, through training andresearch.
UNAFEI has paid utmost attention to the priority themes identified by the Commission on Crime
Prevention and Criminal Justice. Moreover, UNAFEI has been taking up urgent, contemporary problems in
the administration of criminal justice in the region, especially problems generated by rapid socio-economicchange (e.g., transnational organized crime, corruption, economic and computer crime and the re-integrationof 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 Institute's work programmes. In the international
training courses and seminars, participants from different areas of criminal justice discuss and study 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 and ad hoc lecturers. This socalled "problem-solving through an integrated approach" is one of the chief characteristics of UNAFEI
programmes.
Each year, UNAFEI conducts two international training courses (eight weeks duration) and one
international seminar (five weeks duration). Approximately 90 government officials from various overseas
countries receive fellowships from the Japan International Cooperation Agency (JICA; an independentadministrative 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 Middle and Near East, Latin
America and Africa. These participants are experienced practitioners and administrators holding relatively
senior positions in criminal justice fields.
During its 42 years of existence, UNAFEI has conducted a total of 125 international training courses andseminars, in which approximately 3048 criminal justice personnel have participated, representing 104
different countries. UNAFEI has also conducted a number of other specialized courses, both country andsubject focused, in which hundreds of other participants from many countries have been involved in. In theirrespective countries, UNAFEI alumni have been playing leading roles and holding important posts in thefields of crime prevention and the treatment of offenders, and in related organizations.
A. The 123rd International Seminar
1. Introduction
From 14 January to 13 February 2003, 22 participants from 15 countries attended the 123rd International
Seminar to examine the main theme of “The Protection of Victims of Crime and the Active Participation ofVictims in the Criminal Justice Process Specifically Considering Restorative Justice Approaches”.
2. Methodology
Firstly, the Seminar participants respectively introduced the current position regarding the role andfunction of criminal justice agencies in their country in regard to the main theme. Secondly General
Discussion Sessions in the conference hall examined the subtopics of the main theme. In sum, theparticipants comprehensively examined the measures that were available to protect victims of crime,
problems encountered and ways to improve that protection. They also carefully considered restorative

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ANNUAL REPORT FOR 2003

justice approaches and arrived at a number of important recommendations. To conduct each session
efficiently, the UNAFEI faculty provided the following seven topics for participant discussion:
Topic 1: The strengthening of immediate and direct support for the victim and the establishment of asystem of monetary support for the victim;
Topic 2: Current situation, problems and solutions in relation to measures to protect victims of crime;
Topic 3: Particular issues in utilizing restorative justice approaches such as the Victim Offender
Reconciliation Programme (VORP), Victim Offender MediationProgramme (VOM), Victim
Offender Dialogue Programme, family group conferencing and others;
Topic 4: The argument on the theoretical basis of restorative justice, relationship between restorative
justice and criminal justice, including the aims and goals of restorative justice in comparison
with criminal justice;
Topic 5: Major obstacles for introducing restorative justice approaches and effective utilization ofrestorative justice approaches in the criminal justice system;
Topic 6: System/measures in relation to the active participation of victims in the criminal justice process;andTopic 7: Measures to provide information for victims of crime in the criminal justice system.
A chairperson, co-chairperson, rapporteur and co-rapporteur were elected for each topic and organized
the discussions in relation to the above themes. In the conference hall, the participants and UNAFEI faculty
seriously studied the designated subtopics and exchanged views. The General Discussion Paper summarized
the vital points of the seven general discussion sessions. This paper will be printed in UNAFEI Resource
Material Series No. 63.
3. Outcome Summary
The role of victims in the criminal justice process has traditionally been limited to that of witnesses; it has
only been recently that the needs of victims have been given recognition. An impetus for change has been
the adoption, in 1985, of the “Principles of Justice for Victims of Crime and Abuse of Power” at the Seventh
United Nations Congress on the Prevention of Crime and the Treatment of Offenders.
The participants produced a general discussion paper which separately addressed the issues of: support
and protection of victims; and restorative justice approaches and made comprehensive recommendations forboth.
It was proposed that in order to fully implement support and protection for victims of crime the“Principles of Justice for Victims of Crime and Abuse of Power” be respected by both individuals and nations.
The following recommendations were made:(i)

Taking into account each country’s needs pilot projects should first be set up for victim support andassistance.
(ii) Development of victim support and assistance requires a better understanding of victims; therefore
there is need to plan and conduct systematic training of facilitators. Experts from countries withadvanced victim support systems, e.g., the U.K., the U.S., etc. should be invited to help.
(iii) Traditional wisdom and customs should not be disregarded or disqualified since community
development and mobilization may provide more appropriate services for victims of crime thaninstitutionalized systems.
(iv) Basic information about criminal proceedings (such as arrest of the offender, prosecution, scheduleof trial, release on bail, etc.) should be provided to victims by the competent authorities.
(v) In order to positively reflect victims' rights at trial, “private accessory prosecutions" should be
introduced if necessary, where the victims can participate in the criminal trial as private prosecutors
in addition to public prosecutors.
(vi) Every country with a private prosecution system must ensure that the victim is not placed in a
disadvantageous situation because of poverty and/or lack of legal expertise. In countries where
private prosecutions are not available, there should be some appropriate measures to complain orappeal against the decision of non-prosecution by public prosecutors.
(vii) The police and other criminal justice related authorities should provide protective measures tovictims/witnesses in danger, such as escort services etc.

4

(viii) Separate waiting rooms between offenders and victims/witnesses, and partitions in courtrooms
should be introduced. A video link should be available if the financial circumstances of therespective countries enable this.
(ix) Due to the burden on resources of establishing comprehensive victim support services it wasrecommended that only areas with the most pressing needs initially establish such services. Asawareness of the issues grows and resources become available it could gradually be expanded.
The restorative justice approach is one which considers the loss caused by crime through the active
participation of the victim, offender and the community. The Vienna Declaration on Crime and Justice:
Meeting the Challenges of the Twenty-first Century was adopted by the Tenth United Nations Congress on
the Prevention of Crime and Treatment of Offenders in Vienna in April 2000. This encourages thedevelopment of restorative justice policies, procedures and programmes that are respectful of the rights,
needs and interests of victims, offenders, communities and all other parties.
Although restorative justice has been defined in numerous ways, the participants reached a common
understanding about restorative justice as follows: “Restorative justice provides a process with opportunities
for victims, offenders and the community affected by a specific offense and is a means to collectively identify
and address harms, needs, and obligations, in order to heal and put things as right as possible”.
Based upon the aims and goals of restorative justice the following recommendations for introducing andutilizing restorative justice approaches were made:(i)

When each country initiates restorative justice approaches, pilot programmes which correspondwith problem-oriented approaches should be started, considering the feasibility and efficacy of suchapproaches.
(ii) The state should: try to solve general problems such as ignorance and constraints of resources;
ensure a fair process and outcome for the parties concerned; take effective measures to ensure
parties have equal bargaining power; and protect the human rights of offenders under the due
process of law.
(iii) Research has proved that restorative justice approaches are useful in prevention of re-offending,and provide satisfactory results for the parties concerned, however there is still a need for more
research widening the scope, particularly in the field of domestic violence.
(iv) Adequate information about restorative justice should be provided to the general public and persons
working for the criminal justice system.
(v) When the restorative justice process is implemented, guidelines should be observed, such as
voluntary participation; trained facilitators and mediators should guide the process; and appropriate
follow-up should be carried out to confirm the implementation of the agreement.
B. The 124th International Training Course
1. Introduction
UNAFEI conducted the 124th International Training Course from 21 April to 12 June 2003 with the main
theme, "The Effective Prevention and Enhancement of Treatment for Drug Abusers in the Criminal Justice
Process". This Course consisted of 26 participants from 13 countries. The purpose of this International
Training Course was to offer participants an opportunity to share information of the current situation of drug
abuse; punishments; prevention and treatment for drug abuse; and the challenges faced by each country. At
the same time the course offered participants the opportunity to explore more effective measures andstrategies for preventing drug abuse and treating drug abusers to promote their reintegration into society.
2. Methodology
The participants identified the current situation of and problems experienced in preventing drug abuse
and treating drug abusers within the criminal justice system. It was acknowledged that there might be acausal link between the increase in drug abusers and the lack of treatment afforded convicted drug abusers.
The participants explored the types of treatment programmes that are and which could be offered at both the
pre and post sentencing stage.
The objectives of the Course were primarily realized through the Individual Presentations and Group
Workshop sessions. In the former, each participant presented the actual situation, problems and future

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ANNUAL REPORT FOR 2003

prospects of their 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 thefollowing two groups under the guidance of faculty advisers:
Group 1: Effective prevention of drug abuse and the enhancement of treatment for drug abusers at the
pre-sentencing stage; andGroup 2: Effective prevention of drug abuse and enhancement of treatment for drug abusers at the post
sentencing stage.
The two groups elected a chairperson, co-chairperson, rapporteur and co-rapporteur to organize thediscussions. The group members seriously studied the designated subtopics and exchanged their views
based on information obtained through personal experience, the Individual Presentations, lectures and soforth. Sessions were allocated for Group Discussion. During the course, Plenary Meetings were held todiscuss the interim outline of the Group Workshop reports and to offer suggestions and comments. During
the final Plenary Meetings in the seventh week, drafts of the Group Workshop reports were examined andcritiqued by all the participants and the UNAFEI faculty. Based on these discussions, the Groups further
refined their reports and presented them in the Report-Back Sessions, where they were endorsed as thereports of the Course. The full texts of the reports will be published in the UNAFEI Resource Material
Series No. 64.
3. Outcome Summary
Drug abuse has a huge impact on all fields of the criminal justice administration. In view of theseriousness of drug related problems, many countries have taken specific measures to combat it. In additioninternational instruments such as the United Nations Convention against Illicit Traffic in Narcotic Drugs andPsychotropic Substances (1988) to promote international cooperation in drug control have been implemented.
Meanwhile in order to effectively cope with drug abuse problems, drug demand reduction policies also need
to be incorporated in a comprehensive strategy against drug abuse. The General Assembly of the United
Nations at the 20th Special Session in 1998 recognized the need for such a strategy. It emphasized the needfor early detection and prevention of drug abuse and appropriate rehabilitative services.
Worldwide drug abuse is on the increase. Several reasons might be adduced for this including the factthat the majority of countries’ drug abusers are convicted without much consideration for their treatment.
Research indicates that pre-sentencing treatment is very successful in reducing recidivism and rehabilitating
the abuser. However the legal position in some participating countries is that drug abusers are criminals andshould only receive punishment.
Most of the participating countries do not have treatment programmes for drug abusers at the presentencing stage. Also, there are considerable differences regarding the ways in handling drug abuseproblems, i.e. whether drug abuse be criminalized or decriminalized, therefore, there are many difficulties
and problems concerning the introduction of such programmes without contradicting the current legal
framework of the respective countries. The recommendations that follow are in respect of programmes atthe pre-sentencing stage for the purpose of rehabilitation and reintegration of drug abusers, creating a safer
community and reducing the caseload of criminal justice agencies.
(i)

It is necessary to introduce pre-sentencing treatment in dealing with the drug abusers in theinterests of criminal justice and society.
(ii) The implementation of a pre-sentencing treatment programme should be in accordance with eachcountry’s legal framework, social background and so on.
(iii) In the introduction of any pre-sentencing treatment, the following factors should be considered:presumption of innocence; the target of the treatment: persons who commit drug abuse (however,countries may wish to consider the possibility of enlarging the scope of the programme byencompassing drug abusers who commit other offences under the influence of drugs or for the
purpose of obtaining drugs); necessity of consent – a voluntary scheme could be implemented incountries that criminalize drug use and a compulsory scheme would be a better option in countries
that do not criminalize drug use; since most criminal justice agencies lack necessary manpower,skill and knowledge in administering effective treatment it is indispensable to establish and maintain
coordination among treatment agencies and criminal justice agencies; successful completion of6treatment should result in non-prosecution or dismissal of charges, or be taken as a mitigating factor
if a charge is for drug abuse only.
(iv) Comprehensive community drug education programmes are necessary.
As regards the prevention of drug abuse and the enhancement of treatment at the post-sentencing stage,
the following recommendations were made:
(i)

(ii)
(iii)

(iv)
(v)

(vi)

Through Care is an essential continuous process of supervision and support from institutional andcommunity-based treatment to aftercare. Major agencies and organizations should formulate multi
disciplinary teams to plan and manage the entire Through Care process. A continuous circle ofresearch, monitoring, assessment and planning during the Through Care process is of vital
importance.
Early family participation in treatment is very desirable as most of the drug abusers have abackground of family disruption. Thus, family therapy and counseling from the beginning isimportant.
Drug relapse is a common phenomenon in the process of recovery. Starting the relapse prevention
programme at the aftercare stage will be too late for the drug abusers to learn and develop skills forovercoming the triggers which drag them back to the re-using road. Relapse prevention should
receive attention throughout rehabilitation.
The ideal Through Care can be achieved by emphasizing collaboration and co-ordination of agencies
and departments.
The establishment of a common database management system, which can be utilized by all of the
stakeholders for programme implementation, monitoring and evaluation, is essential.
Dissemination of the analyzed information should be used by policy makers in formulating aneffective and efficient strategy and policy.
Effective strategies should be put in place to intercept negative practices such as drug smuggling inprison and other practices which lead to a vicious cycle.

C. The 125th International Training Course
1. Introduction
From 8 September to 30 October 2003, UNAFEI conducted the 125th International Training Course withthe main theme, "Effective Countermeasures against Illicit Drug Trafficking and Money Laundering". This
Course consisted of 24 participants from 13 countries. The purpose of this International Training Course wasto offer participants an opportunity to share information on the current situation of Illicit drug trafficking andmoney laundering, and the challenges faced by each country. At the same time the course offeredparticipants the opportunity to explore more effective measures and strategies to meet these challenges.
2. Methodology
The 125th Course endeavored to explore the best means to effectively combat illicit drug trafficking andmoney laundering. The participants comprehensively examined measures to prevent drug trafficking andstudied ways in which money laundering could be detected and prevented. This was accomplished primarily
through a comparative analysis of the current situation and the problems encountered in tackling these issues.
The participants’ in-depth discussions enabled them to put forth effective and practical solutions.
The objectives were primarily realized through the Individual Presentations and the Group Workshop
sessions. In the former, each participant presented the actual situation, problems and future prospects of
their country with respect to the main theme of the Course. The Group Workshops further examined thesubtopics of the main theme. To facilitate discussions, the participants were divided into the following threegroups:Group 1: Effective criminal investigation;
Group 2: Countermeasures against organized crime; andGroup 3: Effectively tracing the proceeds of crime, focusing on countermeasures againstmoney laundering.
Each group elected a chairperson, co-chairperson(s), rapporteur(s) and co-rapporteur(s) to organize thediscussions. The group members seriously studied the designated subtopics and exchanged their views

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ANNUAL REPORT FOR 2003

based on information obtained through personal experience, the Individual Presentations, lectures and soforth.
In weeks six and seven Plenary Meetings were held to discuss the interim outline of the Group Workshop
reports and to offer suggestions and comments. During the Plenary Meetings, drafts of the Group Workshop
reports were examined and critiqued by all the participants and the UNAFEI faculty. Based on these
discussions, the Groups further refined their reports and presented them in the Report-Back Sessions, where
they were endorsed as the reports of the Course. The reports will be published in full in the UNAFEI
Resource Material Series No. 65.
3. Outcome Summary
Drug trafficking is of great concern to the international community because it affects not only individuals
but the whole of society itself. Many organized criminal groups rely heavily on it as a source of income which
is used in turn to fund their growth. In order to make an impact on drug offences it is necessary to not only
prevent them from committing these offences but also to deprive these groups of this income. Criminals
however go to great lengths to conceal their proceeds of crime and therefore it is essential that serious
measures are taken in order to prevent this money laundering.
The collection of information is paramount in the successful investigation of drug trafficking. There is,however, a need to improve conventional investigation methods in order that the criminals will be arrested
and successfully prosecuted. They can be categorized as: intra-agency measures; inter-agency measures; andinternational forum.
(i) Intra-Agency
Expert investigators with experience in the field of investigation should conduct on-the-job training forless experienced investigators. It is also necessary that police investigators maintain a checklist so they caneasily refer to the standard operating procedures that must be followed. Analysis of failed operations will
help them determine the cause and reason why such operations were not successful.
(ii) Inter-Agency (Domestic)
In order to share information, liaison committee meetings among investigation agencies involved in drug
offenses should be held. By conducting such meetings regularly they can also become acquainted with otherpersonnel and thus create a closer working relationship. Feedback between prosecutors and investigators
should be maintained in order to have a constant and regular follow-up on the status of a case to ensure that
all the necessary witnesses and evidence are properly presented.
(iii) International Forum
It is desirable to have a working level meeting among involved nations. At this meeting, informationexchange regarding specific cases and procedures for international investigation should be discussed.
Secondly, placing personnel at embassies etc., as liaison officers from the investigation agency, is very
effective because the liaison officers can smooth the administrative process during a mutual assistance case.
Thirdly, it is important to actively participate in various international training courses and forum held byinternational organizations. Through this participation, global trends regarding drug trafficking and money
laundering and the latest information regarding international measures can be acquired. Lastly, databasesharing or creating mutual link measures will be effective among countries that closely cooperate.
The introduction of new investigation techniques is necessary to combat organized crime organizations
involved in drug trafficking. Controlled delivery for example is encouraged by the TOC Convention; it isvitally important however that proper procedures are followed to ensure the admissibility of such evidence.
The effectiveness of this technique can be improved when it is combined with other techniques such as
electronic surveillance which is a very efficient method of collecting critical data but has the disadvantage ofrequiring a large financial investment. Many countries have experienced a significant expansion in the use ofundercover operations which has helped secure the convictions of drug traffickers and dealers. It is of course
vital to ensure that key prosecution witnesses are not intimidated and so to secure the cooperation and safetyof key witnesses a witness protection programme is very desirable.
In order to effectively combat money laundering it is essential that countries that have not yet
criminalized it do so and also set up Financial Intelligence units (FIU’s). In this regard the following
recommendations were made:

8

(i)

(ii)
(iii)
(iv)
(v)

(vi)

Existing laws should be amended in the following ways: the scope of predicate offences should be
expanded; STR’s should be clearly defined; leakage of information by bank officials should be
criminalized; a legal framework should be provided for cooperation between agencies; legislation
should enable new investigative techniques; supervisory systems should be established for nonbanking financial institutions; and fair and effective measures for investigative authorities to obtainbank records should be provided.
It is important to launch an active awareness raising campaign to promote the common
understanding that anti-money laundering measures are necessary.
Law enforcement officials and staff of FIU’s should receive adequate training to provide them withskills and knowledge regarding the investigation of money laundering.
A regime for greater cooperation between law enforcement officials and other relevant agencies
should be established.
States should ratify and enact laws to implement UN Conventions such as: the UN Convention
against Illicit Traffic in Narcotic Drugs and Psychotropic Substances requiring State Parties to takenecessary measures to trace, freeze and forfeit the proceeds in relation to drug offences; and the UN
Convention against Transnational Organized Crime.
International cooperation should be promoted.

D. Special Seminars and Courses
1. Eighth Special Seminar for Senior Criminal Justice Officials of the People’s Republic of China
The Eighth Special Seminar for Senior Officials of Criminal Justice in the People’s Republic of China,
entitled “International Cooperation in Crime Prevention and Criminal Justice – to Focus on the
Implementation of the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances,
1988 and the UN Convention against Transnational Organized Crime”, was held from 24 February to 14
March 2003. Twelve senior criminal justice officials and the UNAFEI faculty comparatively discussed
contemporary problems faced by China and Japan in relation to the above theme.
2. Fourth Training Course for Kenya on Juvenile Delinquent Treatment Systems
UNAFEI conducted the Fourth Training Course for Kenyan criminal justice officials who are working forthe prevention of delinquency and the treatment of juvenile delinquents in their country. The Course,
entitled “Juvenile Delinquent Treatment Systems”, was held from 4 November to 28 November 2003. The
Course exposed Kenyan officials to the workings of the Japanese juvenile justice and treatment systemthrough lectures and observation visits to relevant agencies. As a result of this comparative study, theofficials successfully developed action plans for the implementation and development of institutional andcommunity-based treatment systems for juvenile delinquents in Kenya. They also developed a plan for theestablishment of a network between the police, the courts and the Children’s department.
3. Sixth Special Training Course on Corruption Control in Criminal Justice
UNAFEI conducted the Sixth Special Training Course entitled “Corruption Control in Criminal Justice”
from 4 November to 28 November 2003. In this course, seventeen foreign and three Japanese officials
engaged in corruption control comparatively analyzed the current situation of corruption, methods ofcorruption prevention, and measures to enhance international cooperation in this regard. Among theparticipants four were from the National Counter Corruption Commission of Thailand; the organization that
UNAFEI is preparing a new programme for in 2004, based on the Technical Cooperation Project “Support for
Anti-Corruption Management”.
4. Second Seminar on the Judicial System for Tajikistan
The Second Special Seminar for officials involved in criminal justice from Tajikistan was held from 4
March to 21 March 2003 at UNAFEI. The Seminar was entitled “Transnational Organized Crime andInternational Cooperation – to Focus on the Implementation of the UN Convention against Transnational
Organized Crime”. Ten criminal justice officials and the UNAFEI faculty comparatively discussed
contemporary problems faced by Tajikistan and Japan in relation to the above theme.
5. J-Net Seminars and an Ad Hoc Seminar on the Revitalization of the Volunteer Probation Aid System for
the Philippines
The first “J-Net Seminar on the Revitalization of the Volunteer Probation Aid System for the Philippines”
was held in March 2003, and the Second Seminar was held in November 2003. They were conducted in

9ANNUAL REPORT FOR 2003

Manila, Philippines and Tokyo, Japan, through the Japan International Cooperation Agency-Net. An Ad Hoc
Seminar was held in March 2003 at UNAFEI for five Parole and Probation officers as a follow up to the first JNet Seminar.
6. Special Course for Indonesia
A special course for Indonesia on “Comparative Study on Legal and Judicial System for their Reform” washeld from 2 June to 5 July 2003 by the International Cooperation Department, Research and Training Institute,
Ministry of Justice of Japan in collaboration with UNAFEI.
7. Special Seminar on the Japanese Justice System for the Office of the Public Prosecutor General of theMacau Special Administrative Region
The “Special Seminar on the Japanese Justice System for the Office of the Public Prosecutor General of
the Macau Special Administrative Region” was held at UNAFEI from 24 to 29 August 2003. There were 29
participants from Macau, which included the Prosecutor General, 7 public prosecutors and 21 officers fromthe public prosecutors office.
III. TECHNICAL COOPERATION
A. Regional Training Programmes
Costa Rica
In July 2003, the Director and a professor from UNAFEI visited Costa Rica to attend the Fifth
International Training Course on the “Improvement of Prison Conditions and Correctional Programmes”,
organized and hosted by the Government of Costa Rica through the United Nations Latin American Institutefor the Prevention of Crime and the Treatment of Offenders (ILANUD).
B. Seminar on Counter-Terrorism Conventions
During the 125th International Training Course, UNAFEI arranged for the participants to attend a twoday seminar entitled “Counter-Terrorism Conventions for the Purposes of Encouraging the Accession to theConvention by Countries in Southeast Asia”, held by the Ministry of Foreign Affairs of Japan.
C. Others
In July and August 2003, the Deputy Director and two UNAFEI professors were dispatched to Kenya toassist the Children’s Department of the Ministry of Home Affairs and National Heritage in a project todevelop and implement national standards and regulations for the Children’s department for the treatment ofjuvenile offenders and to establish a network between the police, the courts and the Children’s department.
IV. COMPARATIVE RESEARCH PROJECT
Reflecting its emphasis on the systematic relevance of training activities and priority themes identified by
the UN Commission, the research activities of the Institute are designed to meet practical needs, including
those for training materials for criminal justice personnel. In June of 2003 UNAFEI sent questionnaires on
the treatment of drug abusers to 8 Asian countries, by the end of the year 6 countries had replied. UNAFEI
will analyze the results, conduct a comparative study and make a report in 2004.
V. 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 Library Service of theInstitute has been providing, upon request, materials and information to United Nations agencies,
governmental organizations, research institutes and researchers, both domestic and foreign.
VI. 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 faculty members,
visiting experts and participants of UNAFEI courses and seminars. In 2003, the 60th and 61st edition of the
Resource Material Series were published. In September 2003 the results of the Indonesia-UNAFEI-JICA
Joint Seminar on “Criminal Justice Reform” (held in Jakarta, Indonesia in December 2002) were published.

10Additionally, issues 110 to 112 of the UNAFEI Newsletter were published, including a brief report on eachcourse and seminar (from the 123rd to the 125th respectively) and providing other timely information. Thesepublications are also available on UNAFEI’s web site http://www.unafei.or.jp/english.
VII. OTHER ACTIVITIES
A. Public Lecture Programme
On 31 January 2003, 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 the 123rd
International Seminar participants. 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 public’s awareness of criminal justice issues, throughcomparative international study, by inviting distinguished speakers from abroad. This year, Professor John
Braithwaite (Chair, Regulatory Institutions Network Research School of Social Science, the Australian
National University) and Ms. Sylvia Frey (Executive Assistant, Section on Criminal Procedure, Federal
Ministry of Justice, Germany) were invited as speakers to the Programme. They presented papers on,“Restorative Justice: Justice of the Future” and “Victim’s Rights in Germany – Information and Participationin Criminal Procedure, Reparation and Practical Assistance” respectively.
B. Assisting UNAFEI Alumni Activities
Various UNAFEI alumni associations in several countries have commenced, or are about to commence,research activities in their respective criminal justice fields. It is, therefore, one of the important tasks of
UNAFEI to support these contributions to improve the crime situation internationally.
C. Overseas Missions
Mr. Yuichiro Tachi (Professor) attended the International Prosecutors Association Asia Pacific regional
Meeting, held in Thailand from 16 to 19 February 2003.
Mr. Kei Someda (Professor) visited Thailand from 3 to 8 March 2003 where he delivered two lectures at
the National Seminar on the Treatment of Offenders in the New Century, jointly organized by the
Department of Probation and the Thailand Research Fund.
Mr. Kunihiko Sakai (Director) and Keisuke Senta (Professor) attended the 12th Session of the United
Nations Commission on Crime Prevention and Criminal Justice held in Vienna, Austria from 12 to 24 May
2003.
Mr. Kunihiko Sakai (Director) and Mr. Yasuhiro Tanabe (Professor) attended the Global Forum 3 onFighting Corruption and Safeguarding Integrity held in Seoul, Korea from 28 May to 1 June 2003.
Ms. Sue Takasu (Professor) visited Malaysia as an Independent Assessment Expert for the World Bankand IMF to assess the effectiveness of the law enforcement concerning anti-money laundering and combating
financing terrorism from 13 to 24 July 2003.
Mr. Kunihiko Sakai (Director) and Mr.Hiroyuki Shinkai (Professor) attended the “Fifth International
Training Course on Effective Treatment Measures to Facilitate the Reinsertion and the Rehabilitation of
Inmates into the Society”, held in Costa-Rica from 13 to 26 July 2003.
Ms. Tamaki Yokochi (Professor) visited the Philippines to take part in the 2nd J-Net Seminar on the
Revitalization of Volunteer Probation Aid for the Philippines between 14 and 18 July 2003.
Ms. Tomoko Akane (Deputy Director), Mr. Kenji Teramura (Professor) and Mr. Kei Someda (Professor)
visited Kenya as short-term experts, as part of a JICA international assistance scheme providing special
support to the Children’s Department of Kenya from 22 July to 13 August 2003.
Mr. Kunihiko Sakai (Director) and Keisuke Senta (Professor) visited Bangkok, Thailand to do preparatory
research for the cooperative project for the NCC between Thailand and UNAFEI from 17 to 23 August 2003.

11

ANNUAL REPORT FOR 2003

Ms. Tomoko Akane (Deputy Director), Mr. Toru Miura (Professor) and Mr. Kiyoshi Ezura (Chief ofSecretariat) visited the People’s Republic of China for the purpose of fostering international exchange
between the respective criminal justice administrations from 31 August to 6 September 2003.
Mr. Keisuke Senta (Professor) attended the APG for money laundering in Macau from 14 to 20
September 2003.
Mr. Toru Miura (Professor) and Ms. Tamaki Yokochi (Professor) visited Uzbekistan, Kyrgyz andTajikistan to consider the necessity of establishing a training course for the Central Asian countries from 14
to 29 October 2003.
Mr. Yasuhiro Tanabe (Professor) visited Hong-Kong from 4 to 7 November 2003 to give a presentation at
the 2nd Asian Cyber Crime Summit at the Hong-Kong University.
Ms. Tomoko Akane (Deputy Director) visited Courmayeur, Italy from 26 November to 2 December 2003
to attend: the 18th coordinating meeting of the UN Programme Network Institutes; the 10th ISPAC Plenary
Meeting; and the ISPAC International conference on Crime and Technology: New Frontiers for Regulation,
Law enforcement and Research.
Ms. Sue Takasu (Professor) visited Bangkok, Thailand from 27 November to 2 December 2003 to attend
the ACPF Working Group Meeting on the Plans of Action in Asia for the Implementation of the Vienna
Declaration on Crime and Justice as a speaker of one of the sessions on the theme of “Economic and Financial
Crimes: Challenges to Sustainable Development”.
Mr. Kenji Teramura (Professor) visited Hong Kong from 1 to 6 December 2003 and Thailand between 6
to 14 December to conduct a survey concerning the effective prevention of drug abuse and treatment of drug
abusers among Asian countries.
Mr. Kei Someda (Professor) visited Singapore from 1 to 6 December 2003 and Thailand between 6 to 14
December to conduct a survey concerning the effective prevention of drug abuse and treatment of drug
abusers among Asian countries.
Mr. Hiroyuki Shinkai (Professor) and Mr. Wataru Inoue (Staff) visited Hong-Kong from 6 to 13 December
2003 to participate in the 23rd Asian and Pacific Conference of Correctional Administrators.
D. Assisting ACPF Activities
UNAFEI cooperates and corroborates with the ACPF to improve crime prevention and criminal justiceadministration in the region. Since UNAFEI and the ACPF have many similar goals, and a large part of
ACPF’s membership consists of UNAFEI alumni, the relationship between the two is very strong. An
example of this cooperation can be seen in the UNAFEI Seminar for the Office of the Public Prosecutor
General of the Macau SAR, which was organized by the ACPF and held by UNAFEI from 25 August to 29
August 2003.
VIII. HUMAN RESOURCES
A. Staff
In 1970, the Government of Japan assumed full financial and administrative responsibility for running theInstitute. The Director, Deputy Director and eight professors are selected from among public prosecutors,
the judiciary, corrections and probation. UNAFEI also has approximately 20 administrative staff members,
who are appointed from among officials of the Government of Japan, and a linguistic adviser. Moreover, theMinistry of Justice invites visiting experts from abroad to each training course and seminar. The Institutehas also received valuable assistance from various experts, volunteers and related agencies in conducting its
training programmes.
B. Faculty Changes
Mr.Yuichiro Tachi, formerly Professor of UNAFEI, was transferred to the Osaka District Public
Prosecutors office on 1 April 2003.

12

Mr. Ryuji Kuwayama, formerly Professor of UNAFEI, was transferred to the Research Department of the
Research and Training Institute of the Ministry of Justice on 1 April 2003.
Ms. Mikiko Kakihara, formerly Professor of UNAFEI, was transferred to the Yokohama Probation officeon 1 April 2003.
Mr. Keisuke Senta, formerly Deputy Chief Prosecutor at Oita District Prosecutors office, joined UNAFEI
as a Professor on 1 April 2003.
Ms. Tamaki Yokochi, formerly a Probation Officer at the Tokyo Probation Office, joined UNAFEI as a
Professor on 1 April 2003.
Mr. Hiroyuki Shinkai, formerly Senior Chief Programme Supervisor at Osaka Prison, joined UNAFEI as aprofessor on 1 April 2003.
Mr. Sean Brian Eratt, formerly Linguistic Advisor to UNAFEI resigned on 28 February 2003.
Mr. Simon Cornell, a Solicitor from England, joined UNAFEI as Linguistic Advisor on 1 March 2003.
IX. FINANCESThe Ministry of Justice primarily provides the Institute’s budget. The total amount of the UNAFEI
budget is approximately ¥314 million per year. Additionally, JICA and the ACPF provide assistance for theInstitute's international training courses and seminars.

13

UNAFEI WORK PROGRAMME FOR 2004
I. TRAINING
A. 126th International Seminar
The 126th International Senior Seminar, “Economic Crime in a Globalizing Society ~ Its Impact on theSound Development of the State” is to be held from 13 January to 12 February 2004. The 126th International
Senior Seminar will examine the current situation and problems of economic crime. The participants will
focus their attention on effective countermeasures to combat economic crime including: preventative
measures; the establishment of an effective legal system and the effective investigation and trial of theseoffences.
B. 127th International Training Course
The 127th International Training Course, “Implementing Effective Measures for the Treatment of
Offenders after Fifty Years of United Nations Standard Setting in Crime Prevention and Criminal Justice” isscheduled to be held from 17 May to 25 June 2004. This Course intends to study the current situation of thetreatment of adult offenders both in institutions and in society and will explore their improvement. The
Course will also explore measures for the effective use and application of United Nations Standards andNorms by sharing and discussing lessons and successful examples.
C. 128th International Training Course
The 128th International Training Course, “Measures to Combat Economic Crime, including MoneyLaundering”, is scheduled to be held from 30 August to 8 October 2004. The 128th International Training
Course will examine the current trends and issues relating to economic crime with a particular focus onmoney laundering. The course will emphasize the transnational nature of economic crime and explore ways
in which it can be combated by the implementation of existing conventions and greater cooperation between
States.
D. Ninth Special Seminar for Senior Criminal Justice Officials of the People’s Republic of China
The Ninth Special Seminar for Senior Criminal Justice Officials in the People’s Republic of China,“Effective Criminal Justice Administration in Accordance with UN Standards and Norms: The Proper Way for
the Protection of Rights and Punishment of Crimes”, is scheduled to be held at UNAFEI from 23 February to
11 March 2004. Thirteen senior criminal justice officials and members of the UNAFEI faculty will discuss
contemporary problems faced by China and Japan in relation to the above theme.
E. Third Special Seminar on the Judicial System for Tajikistan
UNAFEI will hold the Third Special Seminar for officials involved in criminal justice from Tajikistan. The
Seminar, entitled “The Juvenile Justice System and the Treatment of Juvenile Offenders”, will be held from 1
March until 19 March 2004. Fifteen criminal justice officials involved with juveniles and members of the
UNAFEI faculty will discuss contemporary problems faced by Tajikistan and Japan in relation to the above
theme.
F. Fifth Training Course on Juvenile Delinquent Treatment Systems for Kenya
UNAFEI will hold the Fifth Training Course for Kenyan criminal justice officials who are working for theprevention of delinquency and the treatment of juvenile delinquents in their country. The Course, entitled“Juvenile Delinquent Treatment Systems for Kenya”, will be held in October 2004. The Course will expose
Kenyan officials to the workings of the Japanese juvenile justice and treatment systems through lectures andobservation visits to relevant agencies.
G. Seventh Special Training Course on Corruption Control in Criminal Justice
UNAFEI will conduct the Seventh Special Training Course entitled “Corruption Control in Criminal
Justice” in October 2004. In this course, foreign and Japanese officials engaged in corruption control willcomparatively analyze the current situation of corruption, methods of corruption prevention, and measures toenhance international cooperation in this regard.
H. Ad Hoc Seminar on the Revitalization of the Volunteer Probation Aid System for thePhilippines
This seminar will expose the Parole and Probation Officers from the Philippines to the administration of

14

APPENDIX

the Japanese Volunteer Probation officer System, to help them improve their own volunteer programme.
This seminar will be conducted from March 22 to 29, 2004 at UNAFEI for six Parole and Probation officers asa follow up to a video teleconference that took part in November of 2003. A further video teleconference isalso scheduled for later in the year on a date not yet determined.
I. Special Course for Indonesia
A special course for Indonesia on “Comparative Study on Legal and Judicial Systems for their Reform”
will be held from May to July 2004 by the International Cooperation Department, Research and Training
Institute, Ministry of Justice of Japan in collaboration with UNAFEI.
II. TECHNICAL COOPERATION
A. Thailand
1. Technical Cooperation Project with the National Counter Corruption Commission (NCCC) of Thailand
Based on an agreement to be reached shortly between the Governments of Japan and Thailand, UNAFEI
will embark on a three year cooperation project with the National Counter Corruption Commission (NCCC) of
Thailand in cooperation with Japan International Cooperation Agency (JICA) from the financial year 2004.
Under this project UNAFEI will hold two special training courses each year for the NCCC staff members, one
in Japan and the other in Thailand. The training courses under this project aim to enhance the capacity andefficiency of the staff members of the office of the NCCC, which is the constitutional organ responsible for theinvestigation of corruption cases, the inspection of assets and liabilities of persons holding political positions
and state officials, and the prevention of corruption. The first course in Japan is scheduled to start in June
this year, and in November we plan to have the first course in Thailand.
2. Joint Seminar
Prior to the training course described above for the office of the National Counter Corruption Commission
to be held in Thailand, UNAFEI plans to hold a Joint Seminar with the related agencies of Thailand, focusing
on the theme of how to suppress and prevent corruption.
B. Costa Rica
In 2004, UNAFEI will be represented by up to 2 professors at a new training programme entitled “Reformof the Criminal Justice System in Latin American Countries”, in San Jose, Costa Rica. The participants of the
training programme will be judges, prosecutors and attorneys (public and private, engaged in defence).
C. Others
In 2004, UNAFEI may embark on research for the assistance of the prosecution system of Pakistan.

15

APPENDIX
MAIN STAFF OF UNAFEI
Mr. Kunihiko Sakai
Ms. Tomoko Akane

Director
Deputy Director

Faculty
Mr. Toru Miura
Mr. Kenji Teramura
Mr. Kei Someda
Mr. Keisuke Senta
Mr. Yasuhiro Tanabe
Ms. Sue Takasu
Mr. Hiroyuki Shinkai
Ms. Tamaki Yokochi
Mr. Simon Cornell

Chief of Training Division, Professor
Chief of Research Division, Professor
Chief of Information & Library Service Division,
Professor
Professor
Professor
Professor
Professor
Professor
Linguistic Adviser

Secretariat
Mr. Kiyoshi Ezura
Mr. Yoshiyuki Fukushima
Mr. Yoshihiro Miyake
Mr. Makoto Nakayama
Mr. Ryousei Tada

Chief of Secretariat
Deputy Chief of Secretariat
Chief of General and Financial Affairs Section
Chief of Training and Hostel Management
Affairs Section
Chief of International Research Affairs Section
AS OF DECEMBER 2003

16

2003 VISITING EXPERTS
THE 123RD INTERNATIONAL SEMINAR
Professor John Braithwaite

Chair,
Regulatory Institutions Network,
Research School of Social Science,
The Australian National University

Ms. Sylvia Frey

Executive Assistant,
Section on Criminal Procedure,
Federal Ministry of Justice,
Germany

Dr. Kittipong Kittayarak

Director General,
Department of Probation,
Ministry of Justice,
Thailand

Mr. Peter Dunn

Head of Research and Development,
Victim Support National Office,United Kingdom

Ms. Kay Pranis

Restorative Justice Planner,
Minnesota Department of Corrections,
United States of America
THE 124TH INTERNATIONAL TRAINING COURSE

Ms. Shereen Sadiq

Criminal Justice Policy Lead,
Criminal Justice Intervention
Programme (Drug Unit),
Home Office,United Kingdom

Dr. Juana Tomás-Rosselló, M. D.

Drug Abuse Treatment Adviser,
Demand Reduction Section,
UNODC

Dr. Brian Grant

Director,
Addictions Research Center,
Correctional Service,
CanadaDr. Decha Sungkawan

Dean of the Graduate School,
The Faculty of Social Administration,
Thammasart University,
Thailand17

ANNUAL REPORT FOR 2003

THE 125TH INTERNATIONAL TRAINING COURSE
Mr. Hans G Nilsson

Chief of Division,
International Cooperation,Council of the European Union,
Brussels

Mr. Tony Kwok Man-Wai

Former Deputy Commissioner
And Head of Operations,Operations Department,
Independent Commission Against
Corruption,
Hong Kong Special Administrative
Region,People's Republic of China

Pol. Maj.Gen. Peeraphan Prempooti

Secretary-General,
International Affairs,
Anti-Money Laundering Office,Thailand

Ms. Linda Samuel

Deputy Chief,
Asset Forfeiture and Money
Laundering Section,
Criminal Division,
U.S. Department Justice,
U.S.A.

Mr. Jean-Paul Laborde

Chief,
Terrorism Prevention Branch,
United Nations Office on Drugs
and Crime,
Vienna18

2003 AD HOC LECTURERS
THE 123RD INTERNATIONAL SEMINAR
Professor Takayuki Shiibashi

Faculty of Law,
Chuo University,
Japan

Professor Akira Yamagami

Department of Criminal Psychiatry,
Division of Social Medicine and Dental University,
Japan

Mr. Koichi Tachikawa

Office for Crime Victims,
National Police Agency,Japan

Ms. Yukiko Yamada

Vice-President, Victim-Offender Dialogue ProgrammeManagement Center,Japan
THE 124TH INTERNATIONAL TRAINING COURSE

Mr. Toshiaki Nagatsuka

Deputy Director,
Drug Control Division National Police Agency,Japan

Mr. Junji Yamamoto

Deputy Director,
Compliance and Narcotics Division,
Pharmaceutical and Food Bureau, Ministry of Health,Labour and Welfare,Japan

Mr. Eiichi Senoo, M.D., Ph.D

Head of the Department of Addictive Behaviors,
Tokyo Institute of Psychiatry,Japan

Mr. Makoto Oda

Secretary General,
Asia-Pacific Addiction Research Institute,Japan

THE 125TH INTERNATIONAL TRAINING COURSE
Mr. Motoo NoguchiCounsel,Office of the General Counsel,
Asian Development Bank

Mr. Junichi Sudo

Deputy Director,
Drug Control Division,
National Police Agency,
Japan

19

ANNUAL REPORT FOR 2003

Mr. Noriaki Watanabe

Deputy Director,
Public Security Department,
Tokyo Public Prosecutors Office,Japan

Mr. Tatsuya Kanai

Director,
Japan Financial Intelligence Office (JAFIO),
Financial Services Agency,Japan

Mr. Hakan Oberg

Director,
Economic Crimes Bureau,
Division for International Affairs,
Sweden20

2003 UNAFEI PARTICIPANTS
THE 123RD INTERNATIONAL SEMINAR

Overseas Participants
Mr. A. K. M. Mahfuzul Haque

Deputy Commissioner of Police,
Detective Branch,
Dhaka Metropolitan Police,
Bangladesh

Mr. Tshering Penjore

Superintendent of Police,
Royal Bhutan Police Division II,
Punakha, Bhutan

Mr. José Castro

Chief Prefect,
International Airport Control Dept.,
Director of Immigration and International
Police Department,
Chile

Mr. Ayman Amin Abdel Azeem Shash

Chief Judge,
Esmallia Court,
Cairo, Egypt

Mr. Fritz Gerard Dennery Martinez

Police Chief,
Investigation Division for the West Regionof El Salvador,
El Salvador

Mr. Pagar Butar Butar

Personal Staff of Director General of
Corrections,
Ministry of Justice and Human Rights,
Jakarta, Indonesia

Mr. Sida Laukaphone

Director,
Law Research Centre,
Ministry of Justice,
Vientiane, Laos

Mr. Joseph Bernard Dalinting

Legal Officer/Prosecutor,
Head of Legal Division,
Forestry Department,
Malaysia

Mr. Kesab Prasad Bastola

Under Secretary (Law),
His Majesty’s Government,
Cabinet Secretariat,
Kathmandu, Nepal

Mr. Abdul Latif Khan

Deputy Inspector General of Police,
Mardan,Pakistan21

ANNUAL REPORT FOR 2003

Mr. Malik Naveed Khan

Director,
Federal Investigation Agency,
Peshawar Zone,
Interior Division,
Ministry of Interior,
Pakistan

Mr. Sarei Noel

Rehabilitation Officer,
Correctional Service of Papua New Guinea,
New Guinea

Mr. Globert Jabat Justalero

Prosecutor,
Office of the Provincial Prosecutor,
Iloilo City,
Philippines

Ms. Angkana Boonsit

Senior Probation Officer,
Research and System Development,
Department of Probation,
Ministry of Justice,
Bangkok, Thailand

Ms. Somsri Rhujittawiwat

Judge,The Court of Appeal Region 1,
Bangkok, Thailand

Mr. Nabil Mokded Daassi

Superintendent Officer,
Social Prevention Department,
Judiciary Police Direction,
Tunis, Tunisia

Japanese Participants
Ms. Hitomi Akiyama

Prosecutor/Professor,
The First Training Department,
Research and Training Institute,
Ministry of Justice,Tokyo, JapanMr. Yasuo Kataoka

Public Prosecutor,
Tokyo District Public Prosecutors Office,Tokyo, JapanMr. Hiroyuki Nabana

Technical Official,
Facilities Division,
Minister’s Secretariat,
Ministry of Justice,Tokyo, Japan

Mr. Masaharu Ozawa

Professor,
Training Institute for Correctional
Personnel,
Fuchu, Japan

Mr. Ikuro Toishi

Judge/Professor,
Legal Training and Research Institute,Tokyo, Japan22

Mr. Motoshige Yoshida

Chief of General Affairs Section,
General Secretariat,
Hokkaido Regional Parole Board,Japan
THE 124TH INTERNATIONAL TRAINING COURSE

Overseas Participants
Mr. Mohammad Ashraf Ali Khalifa

Senior Assistant Secretary,
Ministry of Home Affairs,
Bangladesh

Mr. Nagphey

Officer in Charge,
Royal Bhutan Police,
BhutanMr. Francisco Stanley Martell Sibrian

Law Clerk,
Criminal Chamber,Supreme Court,
El Salvador

Mr. Alphonse Mark Adu-Amankwah

Superintendent of Police / Manager,
National Crime Scene Management Team
Analyst at Forensic Laboratory,
Criminal Investigation Department,
Ghana Police Service,
Ghana

Mr. Muchlis Effendy, Ph.D.

Chief of Unit Drug Division,
Indonesia National Police,
Indonesia

Mr. Robert Parlindungan Sitinjak

Public Prosecutor / Head of Sub-Division
on Management Planning Bureau,
The Attorney General's Office,Indonesia

Mr. Vong Poh Fah

Deputy Public Prosecutor,
Attorney General’s Chambers,
Malaysia

Mr. Wan Mohamad Nazarie Bin Wan
Mahmood

Director of Prisons Prison Headquarters,
Malaysia Prisons Department,
Malaysia

Ms. Mamdhooha Shujau

Assistant Undersecretary,
Narcotics Control Board,
Maldives

Ms. Felicidad Cuizon Auxtero

Social Welfare Officer,
Department of Social Welfare andDevelopment,
Philippines

Ms. Elma Nel

Occupational Therapist,
Ekuseni Youth Development Center,
South Africa

23

ANNUAL REPORT FOR 2003

Mr. Hidda Marakkala Nishan Chandrajith
DhanasingheSuperintendent of Prisons Department of
Prisons,
Sri Lanka

Ms. Duangta Graipaspong

Assistant Director,
Galyarajanagarindra Institute,Thailand

Ms. Oiytip Ratanagosoom

Human Resource Developer,
Department of Corrections,
Ministry of Justice,
Thailand

Mr. Jae-Woo Choi

Assistant Correctional Supervisor,
General Affairs Division,
Dae-Gu Regional Correction
Headquarters,
Korea

Japanese Participants
Mr. Hiroyuki Fukumoto

Chief Specialist in Charge of
Psychological Assessment,
Matsuyama Juvenile Classification Home,Japan

Mr. Yuki Goto

Assistant Judge,
Tokyo District Court,
Tokyo, Japan

Mr. Masatoshi Kamiya

Probation Officer,
Chubu Regional Parole Board,Japan

Mr. Kazufumi Kikuchi

Public Prosecutor,
Tokyo District Public Prosecutors Office,Tokyo, Japan

Ms. Manami Kojima

Chief Specialist in Charge ofClassification and Rehabilitation,
Shimei Juvenile Training School for
Girls,Japan

Mr. Hideo Nakamura

Probation Officer,
Fukuoka Probation Office,Japan

Mr. Mamoru Nomura

Dep. Director / Police Senior Superintendent,
2nd Organized Crime Control Division,
Organized Crime Control Department,
Criminal Investigation Bureau,
National Police Agency,
Japan

24

Mr. Hiroki Sakai

Narcotics Control Officer,
Narcotics Control Department,
Kyushu Regional Bureau of Health andWelfare,Ministry of Health, Labor and Welfare,Japan

Mr. Kunio Tomihari

Assistant Judge,
Tokyo District Court,
Tokyo, Japan

Mr. Eiji Yamada

Family Court Probation Officer,
Tokyo Family Court,
Tokyo, JapanMr. Hiroyuki Yamashita

Public Prosecutor,
Osaka District Public Prosecutors Office,Osaka, JapanTHE 125TH INTERNATIONAL TRAINING COURSE

Overseas Participants
Mr. Phub Dorji

Officer In-Charge,
City Police Station,
Thimphu,BhutanMr. Mohamed Gamal El Miggbbir

Operations Officer,
Operations Section,
Criminal Investigation Police Dept.,
Egypt

Mr. Aro Siinmaa

Prosecutor,
Tartu Prosecutor's Office,Estonia

Mr. Shankar Jiwal

Zonal Director,
Narcotics Control Bureau,
India

Mr. Asra

Judge, District Court /Assistant Judge,
Supreme Court of Indonesia,
Indonesia

Ms. Diah Ayu Hartati

Public Prosecutor,
Head of Sub Section on Investigation ofSpecial Crimes,
Semarang District Public Prosecution
Office,Indonesia

Mr. Sibounzom Bounlom

Investigator,
Criminal Department,
Office of Public Prosecutor General,
Laos

25

ANNUAL REPORT FOR 2003

Mr. Vilavath Thephithuck

Director,
Protocol and Foreign Relations Division,
Ministry of Justice,
Laos

Mr. Jalalludin Bin Abu

Superintendent of Customs,
Royal Customs Department,
Malaysia

Mr. Hussain Rasheed Yoosuf

Judge,
Ministry of Justice,
Maldives

Mr. Syed Nayyar Abbas Kazmi

Inspector,
Special Investigation Cell,
Anti Narcotics Force,
Narcotics Control Division,
Pakistan

Mr. Antonio Bartolome

Chief,
Manhunt Branch,
Police Anti-Crime Emergency Response,
Philippines

Mr. Esaka Deus Ndege Mugasa

Head Anti-Drugs Unit,
Criminal Investigation Department,
Headquarters,
Tanzania

Mr. Krirkkiat Budhasathi

Secretary of the Criminal Court,
The Criminal Court,
ThailandJapanese Participants
Mr. Hikoichiro Fujisawa

Probation Officer,
Tokyo Probation Office,Hachioji Branch Office,Japan

Mr. Takashi Furusaki

Public Prosecutor,
Kyoto District Public Prosecutors Office,Japan

Mr. Shozo Hirata

Chief Programme Supervisor,
Osaka Prison,Japan

Mr. Hiroaki Kanosue

Maritime Traffic Department,
10th Regional Coast Guard,
Headquarters,
Japan Coast Guard,
Japan

26

Mr. Takashi Kume

Narcotics Agent / Narcotics Control
Officer,
Narcotics Control Department,
Kinki Regional Bureau of Health andWelfare,Ministry of Health, Labor and Welfare,Japan

Ms. Kyoko Muto

Public Prosecutor,
Tokyo District Public Prosecutors Office,Hachioji Branch Office,Japan

Mr. Masato Nakauchi

Narcotics Agent / Narcotics Control
Officer,
Narcotics Control Department,
Kanto-Shinetsu Regional Bureau ofHealth and Welfare,
Ministry of Health, Labor and Welfare,Japan

Mr. Tadayuki Sawada

Assistant Judge,
Saitama Family Court,
Japan

Mr. Toshihiro Suzuki

Public Prosecutor,
Tokyo District Public Prosecutors Office,Tokyo, Japan

Mr. Ichiro Watanabe

Assistant Judge,
Osaka District Court,
Tokyo, Japan

27

ANNUAL REPORT FOR 2003

EIGHTH SPECIAL SEMINAR FOR SENIOR CRIMINAL JUSTICEOFFICIALS OF THE PEOPLE’S REPUBLIC OF CHINA
Mr. Guo Jian-An

Director,
Institute for Crime Prevention,
Ministry of Justice

Mr. Wang Shang-Xin

Deputy Director General,
Criminal Legislation Department,
Legislative Affairs Commission,Standing Committee of National People's Congress

Mr. Xu Xin-Jun

Vice-Governmental Department Head andDirector,
The Prison Administrative Department of Hebai
Province

Mr. Li Zai-Shun

Deputy Division Chief,
Criminal Legislation Department,
Legislative Affairs Commission,Standing Committee of National People's Congress

Mr. Zhu Wei-De

Senior Judge,
First Criminal Division,
Supreme People's Court

Ms. Chen Jian-Hua

Assistant Prosecutor,
The Supreme People's Prosecurate

Mr. Ge Feng

Deputy Director,
General Office,Ministry of Public Security

Mr. Zeng Bin

Deputy Director,
Legal Affairs Department,
Ministry of Public Security

Mr. Bai Jie

Deputy Division Director,
Personnel Department,
Ministry of Justice

Ms. Yang Wei-Li

Deputy Director,
Department of Legal Publicity,
Ministry of Justice

Mr. Xue Jian-Xiang

Deputy Chief Judge,
First Criminal Division,
High People's Court of Jiangsu Province

Mr. Ma Han-Quan

Director,
Supervision Department for Detection,
The Prosecurate of Shanxi Province

28

FOURTH SPECIAL SEMINAR FOR KENYAN OFFICIALSON JUVENILE DELINQUENT TREATMENT SYSTEMS
Mr. Ahmed Hussein Ahmed

Deputy Director,
Children's Department,
Ministry of Home Affairs

Ms. Jacinta Chemweno Murgor

Chief Children's Officer,
Children's Department,
Ministry of Home Affairs

Ms. Carren Morangi Ogoti

Manager,
Kirigiti Girls Rehabilitation School,
Ministry of Home Affairs

Ms. Judy Tuda Oduor

District Children's Officer,
Busia Kenya District Children's Office,Ministry of Home Affairs

Mr. Eliab Musembi Mulili

District Children's Officer,
Laikipia District Children's Office,Ministry of Home Affairs

Mr. Ibrahim George Milimu

Manager,
Wamumu Rehabilitation School,
Ministry of Home Affairs

Mr. Tobias Onyango Odera

Manager,
Dagoretti Rehabilitation School,
Ministry of Home Affairs

Ms. Sophia Barongo

School Manager,
Ngando Preparatory School / Volunteer Children's Officer,
Dagoretti Division Nairobi

Ms. Asenath Nyaboke Ongeri

Senior Resident Magistrate,
The Judiciary

Mr. Alfred Omweri Ondieki

Police Inspector,
Kisumu Police Station

29

ANNUAL REPORT FOR 2003

SECOND SPECIAL SEMINAR FOR TAJIKISTAN OFFICIALS
ON CRIMINAL JUSTICE SYSTEMS
Ms. Goulzorova Muhabbat

Head of Division,
The Sector of Legal Department,
President's Office

Mr. Boboev Hasan Nizomovich

Deputy Chief,
Department of Investigation of Special Cases,
General Prosecutory

Mr. Radjabov Ruslan

Deputy Prosecutor,
Prosecutory of Jeleznodorojniy Rayon of Dushanbe City

Mr. Sharipov Sharifjon Begovich

Deputy Prosecutor,
Istaravshan City Prosecutory

Mr. Turaev Bekmurod Dustovich

Deputy Chief,
Department of Investigation,
General Prosecutory

Ms. Mamadova Manzura Latifovna

Chairman,
Khojand City Court

Mr. Musoev Odinakhon Nusratulloevich

Judge,
Supreme Court

Mr. Tavurov Abdurakhmon Gafurovich

Deputy Chief,
Department of Investigation,
Ministry of Internal Affairs

Mr. Balosov Azamjon Bobomyrodivich

Deputy Chief,
Department of Struggle against Drugs and Organized Crime,
Ministry of Internal Affairs

Mr. Gadoev Aziz Davlatovich

Deputy Chief,
Legal Division,
Department of Public Service,
President's Office30

SIXTH SPECIAL TRAINING COURSE ON
CORRUPTION CONTROL
Overseas Participants
Mr. Mohammad Mohiuddin

Assistant Secretary,
Legislative Drafting Wing,
Ministry of Law, Justice and Parliamentary Affairs,
Bangladesh

Ms. Yara Patricia Esquivel Soto

Prosecutor,
Supreme Court of Justice,
Costa Rica

Mr. George Svanidze

Head of Division for Expertize of Contracts,
Ministry of Justice,Georgia

Mr. Ramji Lal Koli

Joint Secretary and Legal Adviser,
Department of Legal Affairs,
Ministry of Law and Justice,India

Mr. Purbatua Hutabarat

Chief of Unit III,
Derectorat Pidana Korupsi / White Collar Crime,
Indonesia

Mr. Zulqarnain Bin Hassan

Deputy Public Prosecutor,
Anti Corruption Agency,
Prime Minister's Department,
Malaysia

Mr. Kedar Prasad Chalise

District Judge (Additional),
Kathmandu District Court,
Nepal

Mr. Daniel Isaac Centeno Espinoza

Legal Adviser,
National Assembly of Nicaragua,
Nicaragua

Mr. Roberto Javier Moreno Obando

General Secretary,
Republic's Auxiliary,
Attorney's Office,Public Ministry,
PanamaMr. Jim Wala Tamate

Senior State Prosecutor,
Public Prosecutors Office,Department of Attorney General,
Papua New Guinea

Ms. Deana Penaflorida Perez

Public / State Prosecutor,
National Prosecution Service,
Department of Justice,
Philippines

31

ANNUAL REPORT FOR 2003

Ms. Chadarat Anakkaorn

Senior Investigator,
The Office of the National Counter Corruption Commission,
Thailand

Ms. Wassa Chaimanee

State Attorney (Public Prosecutor),
Office of Chonburi Provincial State Attorney,
Office of the Attorney General,
Thailand

Mr. Piset Nakhaphan

Senior Investigator,
The Office of the National Counter Corruption Commission,
Thailand

Mr. Salem Oustas

Senior Investigator,
Bureau of Legal Affairs,
The Office of the National Counter Corruption Commission,
Thailand

Ms. Sirirat Vasuvat

Senior Investigator and Director of Investigations 1,
The Office of the National Counter Corruption Commission,
ThailandMr. Mwape Dancewell Bowa

Senior Prosecutions Officer,
Anti Corruption Commission,ZambiaMs. Lalaina Rakotoarisoa

Judge,
Senior Manager in Charge of External Relations
and Monitoring- Evaluation,
Superior Council of the Fight against Corruption,
Madagascar

Japanese Participants
Mr. Shin Hashimoto

Public Prosecutor,
Osaka District Public Prosecutor's Office,Osaka, JapanMr. Yosuke Kodama

Public Prosecutor,
Tokyo District Public Prosecutor's Office,Tokyo, Japan

Ms. Mihoko Tanabe

Judge,
Nagoya District Court,
Aichi, Japan32

DISTRIBUTION OF PARTICIPANTS BY
PROFESSIONAL BACKGROUNDS AND COUNTRIES(1st International Training Course/Seminar - 125th International Training Course/Seminar)
Professional
Background
Country

Judicial and
Other
Administration

PublicProsecutors

JudgesAfghanistan

78Bangladesh

21

11

5

Training&
Research
Officers

Social
WelfareOfficers

Child
WelfareOfficers

Others

Total

23
5

4

5

2

6

Brunei4

Myanmar

3

China

13

Hong Kong

14

India

14

10

Indonesia

21

22

Iran

5

Iraq

5

6

2
3

5

5

10

7

11

24

3

9

3

1

51

7

1

1

2

6

23

23

14

3

6

11

8

8

6

3

3

5

5

1

2
5

38
66
4

96

1

113

1

41

2

28

4

4

1

2

1

Korea

12

3

53

6

Kyrgyz

1

1

2

Laos

7

5

6

10

28

Oman

5

60
6

2

JordanCambodia

FamilyCourt
Probation
InvestigaParoletion
Officers
Officers

3
12

BhutanCorrectional
Officials(Juvenile)

Correctional
Officials(Adult)PoliceOfficials

1

10

3

Malaysia

20

2

6

42

Maldives

1

1

1

1

Mongolia

1

Nepal

28

13

9

31

10

2

33

Pakistan

18

Palestine

1

Philippines

17

3
21

32

4

8

3

3

1

5

3

2
8

1

1
9

22

34

8

3

84

2

1

77

7

3

6

124

1

1

15

3

1

1

73

1

108

1

158

2
1

3

11

4

6

3

10

18

5

12

10

3

10

Sri Lanka

21

20

12

20

19

1

11

Taiwan

12

4

2

2

1

Thailand

22

33

37

16

16

8

11

Turkey2112

United Arab Emirates

1

1
3

1

1

4

2

21
1

8

5
1

Viet nam

10

5

2

7

1

A S IA

296

194

203

368

183

3

2

Cameroon

3

Cote d'Ivoire

66

4

4

4

1

46

38

1

24

1,463

30
5
3
3

2

1

1

2

1

Ethiopia

3

1

1

4

Gambia

3
3

1

6

4

1

2

1

12

Lesotho

2
1

6
3

7

1

6

2

38

1

1

2

3

Liberia
Madagascar

1

Mauritius

1

1

Morocco842Guinea
Kenya

37

1

2

Egypt

Ghana

7
1

Uzbekistan

1

123
4

Singapore

Algeria1

1

Saudi Arabia

Botswana

102

1
1

4

5

Mozambique

1

1

1

Nigeria155South Africa

2

3

Seychelles

3

3
1
1
1

1

12
7
4

33

ANNUAL REPORT FOR 2003

Professional
Background
Country
Sudan

Judicial and
Other
Administration

PublicProsecutors

Judges2

1

Swaziland
Tanzania

Correctional
Officials(Adult)PoliceOfficials

13

Correctional
Officials(Juvenile)

4

3

4

1

Uganda1

A F R IC A

24

1

15

11

6

19
2

1

18
1
7

5
78

1

7

3

169

3
19

0

9

0

0

1

1

9

1

3

1

Fiji

6

Kiribati

1

Marshall Island

1

1

9

20

1
14

1

51
1

3

4

Micronesia

1

Nauru

1

1

New Zealand1

Papua New Guinea

10

Solomon Islands

3

Tonga

2

1

1
1

4

12

2
10

3

Western Samoa

1

THE PACIFIC

25

3

Argentina

2

2

6

2
1

1
14

47

1
27

0

6

0

0

3

1

2

4
129
6
2

1

2
1

3

Chile

1

Colombia

3

1

Costa Rica

3

4

15
4

Ecuador

2

1

1

7
1

1

1
4

1

11

2

14

1

6

2

Grenada4

1

Guatemala

1
1

Haiti

1

1

Honduras

1

Jamaica3

Mexico1

Nicaragua

1

3

4
1

4
1

1

Panama11Paraguay

2

1

9
4

10

Saint Christopher and
Nevis

4

2

1
1

1

2

1

2

2
1

Venezuela

1

2
1

1

2

9

1

U.S.A.(Hawaii)

12

1
24

20

18

Bulgaria

61

7

2

1

1

1
2

1

3

7

1

Estonia1

Macedonia

1

147
1

1

Hungary24
1

1Saint Vincent

4
10

1

Trinidad and Tobago

2
22

2

3

4
1

1

1
3

1

1

Brazil

13

2

1

43
5

3

1

Bolivia1

2
1

Barbados

34

Total

2

1

Vanuatu

NORTH & SOUTH
AMERICA

Others2

Australia

Saint Lucia

Training&
Research
Officers

Social
WelfareOfficers

61

Zimbabwe

Peru

Child
WelfareOfficers1

ZambiaEl Salvador

FamilyCourt
Investigation
Officers

2

Tunisia

BelizeProbation
ParoleOfficers111Poland1

Lithuania

1

EUROPE

2

0

1

3

JAP AN

109

148

239

90

TOTA L

480

380

486

647

1
1
0

0

0

0

0

0

0

84

75

177

59

320

114

259

64

0

6

38

2

44

53

48

65

1,134

99

102

3,048

PART TWORESOURCE MATERIAL SERIES
No. 63Work Product of the 123rd International Senior Seminar“THE PROTECTION OF VICTIMS OF CRIME AND THE ACTIVEPARTICIPATION OF VICTIMS IN THE CRIMINAL JUSTICE PROCESSSPECIFICALLY CONSIDERING RESTORATIVE JUSTICE APPROACHES”

UNAFEIVISITING EXPERTS’ PAPERS
THE EVOLUTION OF RESTORATIVE JUSTICEJohn Braithwaite＊

I. IMAGINING TWO ROBBERS
A teenager is arrested in Tokyo for a robbery. The police send him to court where he is sentenced to six
months incarceration. As a victim of child abuse, he is both angry with the world and alienated from it.
During his period of confinement he acquires a heroin habit and suffers more violence. He comes out more
desperate and alientated than when he went in, sustains his drug habit for the next 20 years by stealing cars,
burgles hundreds of houses and pushes drugs to others until he dies in a gutter, a death no one mourns.
Probably someone rather like that was arrested in Tokyo today, perhaps more than one.
Tomorrow another teenager, Hiroshi, is arrested in Tokyo for a robbery. I have seen a number of cases
like the story I will tell about Hiroshi. In fact he is a composite of several Hiroshis I have seen. The police
officer refers Hiroshi to a facilitator who convenes a restorative justice conference. When the facilitator
asks about his parents, Hiroshi says he is homeless. His parents abused him and he hates them. Hiroshi
refuses to cooperate with a conference if they attend. After talking with the parents, the facilitator agrees
that perhaps it is best not to involve the parents. What about grandparents? No they are dead. Brothers
and sisters? No he hates his brothers too. Hiroshi’s older sister, who was always kind to him, has longsince left home and he has no contact with her. Aunts and uncles? Not keen on them either, because theywould always put him down as the black sheep of the family and stand by his parents. Uncle Yamada was
the only one he ever had any time for, but he has not seen him for years. Teachers from school? Hates
them all. Hiroshi has dropped out. They always treated him like dirt. The facilitator does not give up: “No
one ever treated you okay at school?” Well, the hockey coach is the only one Hiroshi can ever think ofbeing fair to him. So the hockey coach, Uncle Yamada and older sister are tracked down by the facilitatorand invited to the conference along with the robbery victim and her daughter, who comes along to support
the victim through the ordeal.
These six participants sit on chairs in a circle. The facilitator starts by introducing everyone andreminding Hiroshi that while he has admitted to the robbery, he can change his plea at any time during theconference and have the matter heard by a court. Hiroshi is asked to explain what happened in his own
words. He mumbles that he needed money to survive, saw the lady, knocked her over and ran off with her
purse. Uncle Yamada is asked what he thinks of this. He says that Hiroshi used to be a good kid. But
Hiroshi had gone off the rails. He had let his parents down so badly that they would not even come today.
“And now you have done this to this poor lady. I never thought you would stoop to violence”, continues
Uncle Yamada, building into an angry tirade against the boy. The hockey coach also says he is surprisedthat Hiroshi could do something as terrible as this. Hiroshi was always a troublemaker at school. But hecould see a kindly side in Hiroshi that left him shocked about the violence. The sister is invited to speak,
but the facilitator moves on to the victim when Hiroshi’s sister seems too emotional to speak.
The victim explains how much trouble she had to cancel the credit cards in the purse, how she had nomoney for the shopping she needed to do that day. Her daughter explains that the most importantconsequence of the crime was that her mother was now afraid to go out on her own. In particular, she isafraid that Hiroshi is stalking her, waiting to rob her again. Hiroshi sneers at this and is unmoved, callous
throughout. His sister starts to sob. Concerned about how distressed she is, the facilitator calls a brief
adjournment so she can comfort her, with help from Uncle Yamada. During the break, the sister reveals that
＊ Chair Regulatory Institutions Network Research,

School of Social Science,
Australian National University,
Australia

37

RESOURCE MATERIAL SERIES No.63
she understands what Hiroshi has been through. She says she was abused by their parents as well. Uncle
Yamada has never heard of this, is shocked, and not sure that he believes it.
When the conference reconvenes, Hiroshi’s sister speaks to him with love and strength. Looking
straight into his eyes, the first gaze he could not avoid in the conference, she says that she knows exactly
what he has been through with their parents. No details are spoken. But the victim seems to understandwhat kind of thing is spoken to by the knowing communication between sister and brother. Tears rush
down her cheeks and over a trembling mouth.
It is his sister’s love that penetrates Hiroshi’s callous exterior. From then on he is emotionally engaged
with the conference. He says he is sorry about what the victim has lost. He would like to pay it back, but
has no money or job. He assures the victim he is not stalking her. She readily accepts this now and whenquestioned by the facilitator says now she thinks she will feel safe walking out alone. She wants her money
back but says it will help her if they can talk about what to do to help Hiroshi find a home and a job.
Hiroshi’s sister says he can come and live in her house for a while. The hockey coach says he has somecasual work that needs to be done, enough to pay Hiroshi’s debt to the victim and a bit more. If Hiroshi
does a good job, he will write him a reference for applications for permanent jobs. When the conference
breaks up, the victim hugs Hiroshi and tearfully wishes him good luck. He apologises again. Uncle Yamada
quietly slips a hundred dollars to Hiroshi’s sister to defray the extra cost of having Hiroshi in the house,says he will be there for both of them if they need him.
Hiroshi has a rocky life punctuated by several periods of unemployment, but he finds work when he can,stays out of trouble and lives to mourn at the funerals of Uncle Yamada and his sister. A year later he has togo through another conference after he steals a bicycle. The victim gets her money back and enjoys taking
long walks alone. Both she and her daughter say that as a result of the conference they feel enriched, have alittle more grace in their lives.
Hiroshi’s conference is an example of restorative justice. A new Western wave of restorative justicebegan with victim-offender mediation programmes in Canada and the United States in the 1970s. Then at
the end of the 1980s family group conferences more like the one used in the story of Hiroshi were firstdeveloped in New Zealand. Since then there has been a proliferation of new and varied models of restorative
justice. My contention is that the defining thing they have in common is that they are a process where all
the stakeholders affected by a crime can come together to discuss the consequences of the crime and what
can be done to right the wrong.
II. INSTITUTIONAL COLLAPSE
Few sets of institutional arrangements created in the West since the industrial revolution have been as
large a failure as the criminal justice system. In theory it administers just, proportionate corrections that
deter. In practice, it fails to correct or deter, just as often making things worse as better. It is a criminal
injustice system that systematically turns a blind eye to crimes of the powerful, while imprisonment remains
the best-funded labour market programme for the unemployed and indigenous peoples. It pretends to beequitable, when we know full well that one offender may be sentenced to a year in a prison where he will bebeaten on reception and then systematically bashed thereafter, raped, even infected with AIDS, while others
serve 12 months in comparatively decent premises, especially if they are white-collar criminals.
While I do believe that many criminal justice systems are more decent than ours in Australia, mostcriminal justice systems are brutal, institutionally vengeful, and dishonest to their stated intentions. Theinteresting question is why are they such failures. Given that prisons are vicious and degrading places, you
would expect that fear of ending up in them would deter crime.
There are many reasons for the failures of the criminal justice system to prevent crime. I will give you
just one, articulated in the terms of my theory in Crime, Shame and Reintegration.1 The claim of this theoryis that the societies that have the lowest crime rates are the societies that shame criminal conduct most
1 John Braithwaite, Crime, Shame and Reintegration. Cambridge:
Cambridge University Press, 1989.

38

123RD INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
effectively. There is an important difference between reintegrative shaming and stigmatization. Whilereintegrative shaming prevents crime, stigmatization is a kind of shaming that makes crime problems worse.
Stigmatization is the kind of shaming that creates outcasts; it is disrespectful, humiliating. Stigmatizationmeans treating criminals as evil people who have done evil acts. Reintegrative shaming means disapprovingof the evil of the deed while treating the person as essentially good. Reintegrative shaming means strong
disapproval of the act but doing so in a way that is respecting of the person. Once we understand this
distinction, we can understand why putting more police on the street can actually increase crime. Morepolice can increase crime if the police are systematically stigmatizing in the way they deal with citizens.
More police can reduce crime if the police are systematically reintegrative in the way they deal with citizens.
We can also understand why building more prisons could make the crime problem worse. Having more
people in prison does deter some and incapacitates others from committing certain crimes, like bankrobberies, because there are no banks inside the prison for them to rob, though there certainly are plenty ofvulnerable people to rape and pillage. While there are these crime-preventive effects of imprisonment,
because prisons stigmatize, they also make things worse for those who have criminal identities affirmed by
imprisonment, those whose stigmatization leads them to find solace in the society of the similarly outcast,those who are attracted into criminal subcultures, those who treat the prison as an educational institution
for learning new skills for the illegitimate labour market. On this account, whether building more prisons
reduces or increases the crime rate depends on whether the stigmatizing nature of a particular prison
system does more to increase crime than its deterrent and incapacitative effects reduce it.
A lack of theoretical imagination among criminologists has been a reason for the failure of the criminal
justice system. Without theorizing why it fails, the debate has collapsed to a contest between those whowant more of the same to make it work and those who advance the implausible position that it makes sense
to stigmatize people first and then help them or subject them to rehabilitation programmes in prisons orjuvenile institutions. With juvenile justice in particular, the debate throughout the century has see-sawed
between the justice model and the welfare model assuming the ascendancy. See-sawing between
retribution and rehabilitation has got us nowhere. If we are serious about a better future, we need to hop off
this see-saw and strike out in search of a third model.
For me, that third model is restorative justice. During the past decade a number of different labels reconciliation (Dignan, 1992; Marshall, 1985; Umbreit, 1985), peacemaking (Pepinsky and Quinney, 1991),
redress (de Haan, 1990) - have described broadly similar intellectual currents. Philip Pettit and I havesought to argue for republican criminal justice (Braithwaite and Pettit, 1990). Yet the label that has secured
by far the widest consent during the past few years has been that employed by Zehr (1990), Galaway andHudson (1990) and Cragg (1992), Walgrave, Bazemore and Ubreit2 and Consedine3 - restorative justice. It
has become the slogan of a global social movement. For those of us who see constructive engagement withsocial movement politics as crucial for major change, labels that carry meaning for activists matter.
III. WHAT IS RESTORATIVE JUSTICE?
Restorative justice means restoring victims, a more victim-centred criminal justice system, as well as
restoring offenders and restoring community. First, what does restoring victims mean? It means restoring
the property lost or the personal injury, repairing the broken window or the broken teeth (see Table 1). It
means restoring a sense of security. Even victims of property crimes such as burglary often suffer a loss of
security when the private space of their home is violated. When the criminal justice system fails to leave
women secure about walking alone at night, half the population is left unfree in a rather fundamental sense.
Victims suffer a loss of dignity when someone violates their bodies or shows them the disrespect of taking
things which are precious to them. Sometimes this disrespectful treatment engenders victim shame. “Heabused me rather than some other woman because I am trash.” “She stole my dad’s car because I wasirresponsible to park it in such a risky place.” Victim shame often triggers a shame-rage spiral wherein
victims reciprocate indignity with indignity through vengeance or by their own criminal acts. By seeking to2 Gordon Bazemore and Mark S. Umbreit, Balanced and Restorative Justice. Office of Juvenile Justice and Delinquency
Prevention. Washington, DC, 1994.
3 Jim Consedine, Restorative Justice: Healing the Effects of Crime. Lyttleton, New Zealand: Ploughshares Publications.

39

RESOURCE MATERIAL SERIES No.63
hold the offender dialogueically responsible for her crime, restorative justice seeks to absolve victims offeelings of responsibility which threaten their dignity.
Table 1: What Does Restoring Victims Mean?
Restore property loss
Restore injury
Restore sense of security
Restore dignity
Restore sense of empowerment
Restore deliberative democracy
Restore harmony based on a feeling that justice has been done
Restore social support
Disempowerment is part of the indignity of being a victim of crime. The lawyers, in the words of Nils
Christie “steal our conflict”4. According to Pettit and Braithwaite’s republican theory of criminal justice5, awrong should not be defined as a crime unless it involves some domination of us that reduces our freedom toenjoy life as we choose. It follows that it is important to restore any lost sense of empowerment as a resultof crime. This is particularly important where the victim suffers structurally systematic domination. For
example, some of the most important restorative justice initiatives we have seen in Australia have involved
some thousands of Aboriginal victims of consumer fraud by major insurance companies6. In these cases,
victims from remote Aboriginal communities relished the power of being able to demand restoration andcorporate reform from “white men in white shirts”.
The western criminal justice system has, on balance, been corrosive of deliberative democracy, though
the jury is one institution that has preserved a modicum of it. Restorative justice is deliberative justice; it isabout people deliberating over the consequences of a crime, how to deal with them and prevent theirrecurrence. Deliberative means "based on discussion" or "based on conversation". So deliberative justice isconversational justice. Deliberative democracy is opposed to just deciding what to do by taking a vote
(representative democracy). Representative democracy can be think democracy because it can be based onlittle discussion of the issues. This contrasts with the professional justice of lawyers deciding which rules
apply to a case and then constraining their deliberation within a technical discourse about that ruleapplication.
Restorative justice aims to restore harmony based on a feeling that justice has been done. Restoring
harmony alone, while leaving an underlying injustice to fester unaddressed, is not enough. “Restoringbalance” is only acceptable as a restorative justice ideal if the “balance” between offender and victim thatprevailed before the crime was a morally decent balance. There is no virtue in restoring the balance byhaving a woman pay for a bag of rice she has stolen from a rich man to feed her children. Restoring harmony
between victim and offender is only likely to be possible in such a context on the basis of a discussion of why
the children are hungry and what should be done about the underlying injustice of their hunger.
Restorative justice cannot resolve the deep structural injustices that cause problems like hunger. But
we must demand two things of restorative justice here. First, it must not make structural injustice worse(in the way, for example, that the Australian criminal justice system does by being an important cause of the
4 Nils Christie, “Conflicts as Property”, British Journal of Criminology 17: 1-15, 1978.
5 Philip Pettit and John Braithwaite, Not Just Deserts: A Republican Theory of Criminal Justice.
6 See Brent Fisse and John Braithwaite, Corporations, Crime and Accountability. Cambridge: Cambridge University Press,
1993, pp. 218-23.

40

123RD INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
unemployability and oppression of Aboriginal people). Indeed, we should hope from restorative justice formicro-measures to ameliorate macro-injustice where this is possible. Second, restorative justice should
restore harmony with a remedy grounded in dialogueue which takes account of underlying injustices.
Restorative justice does not resolve the age-old questions of what should count as injust outcomes. It is amore modest philosophy than that. It settles for the procedural requirement that the parties talk until they
feel that harmony has been restored on the basis of a discussion of all the injustices they see as relevant tothe case.
Finally, restorative justice aims to restore social support. Victims of crime need support from their
loved ones during the process of requesting restoration. They sometimes need encouragement and support
to engage with deliberation toward restoring harmony. Friends sometimes do blame the victim, or morecommonly are frightened off by a victim going through an emotional trauma. Restorative justice aims toinstitutionalise the gathering around of friends during a time of crisis.
A. Restoring Offenders, Restoring Community
In most cases, a more limited range of types of restoration is relevant to offenders. Offenders havegenerally not suffered property loss or injury as a result of their own crime, though sometimes they are acause of the crime. Dignity, however, is generally in need of repair after the shame associated with arrest.
When there is a victim who has been hurt, there is no dignity in denying that there is something to beashamed about. Dignity is generally best restored by confronting the shame, accepting responsibility for thebad consequences suffered by the victim and apologising with sincerity7. A task of restorative justice is toinstitutionalize such restoration of dignity for offenders. When restorative justice works best, you get thiscore sequence of remorse-apology-forgiveness.
The sense of insecurity and disempowerment of offenders is often an issue in their offending and in
discussion about what is to be done to prevent further offending. Violence by young men from racial
minorities is sometimes connected to their feelings of being victims of racism. For offenders, restoring a
sense of security and empowerment is often bound up with employment, the feeling of having a future,achieving some educational success, sporting success, indeed any kind of success. Many patches areneeded to sew the quilt of deliberative democracy. Criminal justice deliberation is not as important a patchas deliberation in parliament, in trade unions, even in universities. But to the extent that restorative justicedeliberation does lead ordinary citizens into serious democratic discussion about racism, unemployment,
masculinist cultures in local schools and police accountability, it is not an unimportant element of adeliberatively rich democracy.
The mediation literature shows that satisfaction with the justice of the mediation of those who arecomplained against is more important to achieving mutually beneficial outcomes than the satisfaction ofcomplainants 8 . Criminal subcultures are memory files that collect injustices 9 . Crime problems willcontinue to become deeply culturally embedded in western societies until we reinvent criminal justice as aprocess that restores a sense of procedural justice to offenders10
Finally, Frank Cullen11 has suggested that there could be no better organizing concept for criminology
than social support, given the large volume of evidence about the importance of social support for preventing
crime. The New Zealand Maori people see our justice system as barbaric because of the way it requires thedefendant to stand alone in the dock without social support. In Maori thinking, civilized justice requires theoffender’s loved ones to stand beside him during justice rituals, sharing the shame for what has happened.
Hence the shame the offender feels is more the shame of letting his loved ones down than a western senseof individual guilt that can eat away at a person. The shame of letting loved ones down can be readilytranscended by simple acts of forgiveness from those loved ones.
7 On this issue, I find the work of Tom Scheff and Suzanne Retzinger on by-passed shame illuminating. Tom Scheff and
Suzanne Retzinger, Emotions and Violence: Shame and Rage in Destructive Conflicts. Lexington Books, 1991.
8 Pruitt
9 David Matza, Delinquency and Drift, New York: Wiley, 1964, p. 102.
10 Tom Tyler, Why People Obey the Law, New Haven: Yale University Press, 1990.
11 Francis T. Cullen, Social Support as an Organizing Concept for Criminology, Justice Quarterly

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Restoring community is advanced by iterated restorative justice rituals in which social support around
specific victims and offenders is restored. At this micro level, restorative justice is an utterly bottom-up
approach to restoring community. At a meso level, important elements of a restorative justice package are
initiatives to foster community organization in schools, neighbourhoods, ethnic communities, churches,through professions and other NGOs who can deploy restorative justice in their self-regulatory practices.
At a macro level, we must better design institutions of deliberative democracy so that concern about issues
like unemployment and the effectiveness of labour market programmes have a channel through which they
can flow from discussions about local injustices up into national economic policy-making debate.
B. The Universality of Restorative Traditions
I have yet to discover a culture which does not have some deep-seated restorative traditions. Nor isthere a culture without retributive traditions. Retributive traditions once had survival value. Cultures
which were timid in fighting back were often wiped out by more determinedly violent cultures. In thecontemporary world, as opposed to the world of our biological creation, retributive emotions have lesssurvival value. Because risk management is institutionalized in this modern world, retributive emotions are
more likely to get us into trouble than out of it, as individuals, groups and nations.
The message we might communicate to all cultures is that in the world of the twenty-first century, youwill find your restorative traditions a more valuable resource than your retributive traditions. Yet sadly, thehegemonic cultural forces in the contemporary world communicate just the opposite message. Hollywood
hammers the message that the way to deal with bad guys is through violence. Political leaders frequently
hammer the same message. Yet many of our spiritual leaders are helping us to retrieve our restorative
traditions - the Dalai Lama, for example or Archbishop Desmond Tutu of South Africa.
All of the restorative values in Table 1 are cultural universals. All cultures value repair of damage to ourpersons and property, security, dignity, empowerment, deliberative democracy, harmony based on a sense ofjustice and social support. They are universals because they are all vital to our emotional survival as humanbeings and vital to the possibility of surviving without constant fear of violence. The world’s great religions
recognise that the desire to pursue these restorative justice values is universal, which is why our spiritualleaders are a hope against those political leaders who wish to rule through fear and by crushing deliberative
democracy. Ultimately, those political leaders will find that they will have to reach an accommodation withthe growing social movement for restorative justice, just as they must with the great religious movements
they confront. Why? Because the evidence is now strong that ordinary citizens like restorative justice12.
The virtues restorative justice is about restoring are viewed in admittedly different ways in different
cultures and opinion about the culturally appropriate ways of realising the vitures differ greatly. Hence,
restorative justice must be a culturally diverse social movement that accommodates a rich plurality ofstrategies in pursuit of the truths it holds to be universal. It is about different cultures joining hands as they
discover the profound commonalities of their experience of the human condition; it is about cultures learningfrom each other on the basis of that shared experience; it is about realising the value of diversity, ofpreserving restorative traditions that work because they are embedded in a cultural past. Scientificcrimninology will never discover any universally best way of doing restorative justice. The best path is thepath of cultural plurality in pursuit of the culturally shared restorative values in Table 1.
C. A Path to Culturally Plural Justice
A restorative justice research agenda to pursue this path has two elements:
1. Culturally specific investigation of how to save and revive the restorative justice practices that remain in
all societies.
2. Culturally specific investigation of how to transform state criminal justice both by making it more
restorative and by rendering its abuses of power more vulnerable to restorative justice.
12 See, for example, Alison Morris and Gabrielle Maxwell, “Juvenile Justice in New Zealand: A New Paradigm”, Australianand New Zealand Journal of Criminology 26: 72-90, 1992; Donald Clairmont, “Alternative Justice Issues for AboriginalJustice”, Atlantic Institute of Criminology, November, 1994.

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On the first point, I doubt that neighborhoods in our cities are replete with restorative justice practices
that can be retrieved, though there are some. Yet in the more micro context of the nuclear family, theevidence is overwhelming from the metropolitan US that restorative justice is alive and well and thatfamilies who are more restorative are likely to have less delinquent children than families who are punitiveand stigmatizing13.
Because families so often slip into stigmatization and brutalization of their difficult members, we needrestorative justice institutionalized in a wider context that can engage and restore such families. In mostsocieties, the wider contexts where the ethos and rituals of restorative justice are alive and ready to be
piped into the wider streams of the society are schools, churches and remote indigenous communities. If it
is hard to find restorative justice in the disputing practices of our urban neighbourhoods, the experience ofrecent years has been that they are relatively easy to locate in urban schools14. This is because of the ethos
of care and integration which is part of the educational ideal (which, at its best, involves a total rejection of
stigmatization) and because the interaction among the members of a school community tends to be more
intense than the interaction among urban neighbours. Schools, like families, have actually become more
restorative and less retributive than the brutal institutions of the nineteenth century. This is why we haveseen very successful restorative conferencing programmes in contemporary schools15 We have also seenanti-bullying programmes with what I would call a restorative ethos which have managed in some cases tohalve bullying in schools.
More of the momentum for the restorative justice movement has come from the world’s churches thanfrom any other quarter. Even in a nation like Indonesia where the state has such coercive power, thepolitical imperative to allow some separation of church and state has left religious communities as enclaves
where restorative traditions could survive, just as they are also sites where fundamentalist retributivism
can flourish. Religions like Islam and Christianity have strong retributive traditions as well as restorative
ones.
When I spoke at a conference on restorative justice in Indonesia in the late 1990s, I was struck in aconversation with three Indonesians - one Muslim, one Hindu and one Christian - that in ways I could notunderstand as an agnostic, each was drawing on a spirituality grounded in their religious experience to makesense of restorative justice. Similarly, I was moved by the spirituality of Cree approaches to restorative
justice when a number of native Canadians visited Canberra. I know there is something important I need tolearn about native American spirituality and how it enriches restorative justice. It seems clear to me that it
does enrich it, but I do not understand how. I suppose unless there are things that one can see areimportant without understanding them, one is not really an intellectual.
Asian communities are a cultural resource for the whole world. Because they have not been totallyswamped by the justice codes of the West, they are a cultural resource, just as the biodiversity of theAustralian continent supplies the entire world a genetic resource. The very people who have succumbed
least to the Western justice model, who have been insulated from Hollywood a little more and for a little
longer, are precisely those with the richest cultural resources from which the restorative justice movement
can learn.
Point 2 of the agenda is to explore how to transform state criminal justice. In our multicultural cities I
have said that we cannot rely on spontaneous ordering of justice in our neighbourhoods. There we must be
more reliant on state reformers as catalysts of a new urban restorative justice. In our cities, where
neighbourhood social support is least, where the loss from the statist takeover of disputing is mostdamaging, the gains that can be secured from restorative justice reform are greatest. When a police officer
with a restorative justice ethos arrests a youth in a tightly knit rural community who lives in a loving family,
who enjoys social support from a caring school and church, that police officer is not likely to do much betteror worse by the child than a police officer who does not have a restorative justice ethos. Whatever thepolice do, the child’s support network will probably sort the problem out so that serious reoffending does not
13 See the discussion of the evidence on this in Braithwaite, Crime, Shame and Reintegration, pp. 54-83.

14 Thorsburn.
15 Ibid.

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occur. But when a police officer with a restorative justice ethos arrests a homeless child in the metropolis
like Hiroshi, who hates parents who abused him, who has dropped out of school and is seemingly alone in
the world, it is there that the restorative police officer can make a difference that will render him more
effective in preventing crime than the retributive police officer. At least that is my hypothesis, one we cantest empirically and are testing empirically.
In the alientated urban context where community is not spontaneously emergent in a satisfactory way,
what the criminal justice system can do is construct a community of care around a specific offender or a
specific victim who is in trouble. We need an individual-centred communitarianism that can practically be
accomplished in the modern metropolis. That is what the story of Hiroshi is about. With the restorative
justice conferences being convened in multicultural metropolises like Auckland, Adelaide, Sydney,
Singapore, London, Toronto and Minneapolis the selection principle as to who is invited to the conferenceis the opposite to that with a criminal trial. We invite to a criminal trial those who can inflict most damageon the other side. With a conference we invite those who might offer most support to their own side Hiroshi’s sister, uncle and hockey coach, the victim’s daughter on the other side.
In terms of the theory of reintegrative shaming, the rationale for who is invited to the conference is thatthe presence of those on the victim’s side structures shame into the conference, the presence of supporters
on the offender’s side structures reintegration into the ritual. Conferences can be run in many different
ways from the story of Hiroshi’s conference. Maori people in New Zealand tend to want to open and close
their conferences with a prayer. The institutions of restorative justice we need to build in the city must be
culturally plural, quite different from one community to another depending on the culture of the people
involved. It is the empowerment principle of restorative justice that makes this possible - empowermentwith process control.
From a restorative perspective, the important thing is that we have institutions in civil society whichconfront serious problems like violence rather than sweep them under the carpet, yet which do so in a waythat is neither retributive nor stigmatizing. Violence will not be effectively controlled by communities
unless the shamefulness of violence is communicated. This does not mean that we need criminal justiceinstitutions that set out to maximise shame. On the contrary, if we set out to do that we risk the creation of
stigmatizing institutions16 All we need do is nurture micro-institutions of deliberative democracy that allow
citizens to discuss the consequences of criminal acts, who is responsible, who should put them right andhow. Such deliberative processes naturally enable those responsible to confront and deal with the shamearising from what has happened. And if we get the invitation list right by inviting along people who enjoy
maximum respect and trust on both the offender and victim side, then we maximize the chances that shame
will be dealt with in a reintegrative way.
D. Decline and Revival in Restorative Traditions
The traditions of restorative justice that can be found in all the world’s great cultures have been underattack during the past two centuries. Everywhere in the world, restorative ideals have suffered serious
setbacks because of the globalization of the idea of a centralized state that takes central control of justiceand rationalizes it into a punitive regime. Control of punishment strengthened the power and legitimacy ofrulers17. So did control of mercy, the power of royal or presidential pardon. What rulers really wanted was
the political power of controlling the police, the prisons and the courts. However, abuse of that power
proved at times such a threat to their legitimacy that they were forced by political opponents toinstitutionalize certain principles of fairness and consistency into the state system. Of course, the new
democratic rulers were no more enthusiastic about returning justice to the people than were the tyrants
they succeeded; the secret police continued to be important to combating organized threats to the statemonopoly of violence, the regular police to disorganized threats. The pretence that the state punished crimein a consistent, politically even-handed way, was part of the legitimation for democratically centralizedjustice. Citizens continue to see this as a pretense. They realise that whatever the law says, the reality is
one law for the rich, another for the poor; one set of rules for the politically connected, another for the
powerless.
16 Tom Scheff and Suzanne Retzinger.
17 See, for example, Michel Foucault, Discipline and Punish: The Birth of the Prison. London: Allen Lane, 1977.

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While it is a myth that centralized state law enabled greater consistency and lesser partiality thancommunity-based restorative justice, it is true that abuse of power always was and still is common incommunity justice. And it is true that state oversight of restorative justice in the community can be a checkon abuse of rights in local programmes, local political dominations and those types of unequal treatment inlocal programmes that are flagrantly unacceptable in the wider demos18. Equally it is true that restorative
justice can be a check on abuse of rights by the central state. We see it in restorative justice conferences in
Canberra when a mother asks during the conference that something be done about the police officers who
continue to use excessive force in their dealings with her son, who continue to victimize her son for things
done by others. The restorative justice ideal could not and should not be the romantic notion of shiftingback to a world where state justice is replaced by local justice. Rather, it might be to use the existence ofstate traditions of rights, proportionality and rule of law as resources to check abuse of power in local justiceand to use the revival of restorative traditions to check abuse of state power. In other words, restorative
justice constitutionalized by the state can be the stuff of a republic with a richer separation of powers19, withless abuse of power, than could be obtained either under dispute resolution totally controlled by local
politics or disputing totally dominated by the state.
The key elements of North Atlantic criminal justice that have globalized almost totally during the past
two centuries are:
1. Central state control of criminal justice.
2. The idea of crime itself and that criminal law should be codified.
3. The idea that crimes are committed against the state (rather than the older ideas that they werecommitted against victims or god ).
4. The idea of having a professionalized police who are granted a monopoly over the use of force in domestic
conflicts.
5. The idea of moving away from compensation as the dominant way of dealing with crime by building astate prisons system to systematically segregate the good from the bad and a complementary system ofasylums to segregate the mad from both the bad and the good.
6. The idea that fundamental human rights should be protected during the criminal process.
Like abolitionists, restorative justice theorists see most of these elements of the central state takeoverof criminal justice as retrograde. However, unlike the most radical versions of abolitionism, restorative
justice sees promise in preserving a state role as a watchdog of rights and concedes that for a tiny fraction of
the people in our prisons it may actually be necessary to protect the community from them by incarceration.
While restorative justice means treating many things we presently treat as crime simply as problems ofliving, restorative justice does not mean abolishing the concept of crime. In restorative justice rituals, being
able to call wrongdoing a crime can be a powerful resource in persuading citizens to take responsibility, topay compensation, to apologise, especially with corporate criminals who are not used to thinking of their
exploitative conduct in that way20 Restorative justice does not mean abolishing the key elements of thestate criminal justice system that has globalized so totally this century; it means shifting power from themto civil society, keeping key elements of the statist revolution but shifting power away from central
18 Jeremy Webber makes this point in the Canadian context: “the challenge is to reinvent aboriginal institutions so that theydraw upon indigenous traditions and insights in a manner appropriate to the new situation. This may mean inventing checks
to prevent abuse that were unnecessary two hundred years ago or which existed in a very different form”. Jeremy Webber,“Individuality, Equality and Difference: Justification for a Parallel System of Aboriginal Justice in Robert Silverman andMarianne Nielsen (eds.) Aboriginal Peoples and Canadian Criminal Justice. Toronto: Butterworths, 1992, p. 147.
19 John Braithwaite, On Speaking Softly and Carrying Sticks: Neglected Dimensions of a Republican Separation of Powers,
unpublished paper, 1996.
20 See John Braithwaite, “Corporate Crime and Republican Criminological Praxis”, in F. Pearce and L. Snider (eds.),
Corporate Crime: Ethics, Law and State. University of Toronto press, 1995.

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institutions and checking the power that remains by the deliberative democracy from below that restorative
justice enables.
So you see I have an analysis that is unfashionably universal. I believe that restorative justice will cometo be a profoundly influential social movement throughout the world during the next century firstly because
it appeals to values that are shared universally by humanity, secondly because it responds to the defects of acentralized state criminal justice model that itself has totally globalized and utterly failed in every country
where it gained the ascendency. Everywhere it has failed, there are criminologists or lawyers within thestate itself who are convinced of that failure. And given the global imperatives for states to be competitiveby being fiscally frugal, large state expenditures that do not deliver on their objectives are vulnerable tosocial movements who claim they have an approach which will be cheaper, work better and be more popularwith the people in the long run.
IV. BEYOND COMMUNITARIANISM VERSUS INDIVIDUALISM
Some criminologists in the West are critical of countries like Singapore, Indonesia and Japan where
crime in the streets is not the problem it is in the West because they think individualism in these societies
is crushed by communitarianism or collective obligation. Their prescription is that Asian societies need toshift the balance away from communitarianism and allow greater individualism. I don’t find that a very
attractive analysis.
Some Asian criminologists are critical of countries like the US and Australia because they think thesesocieties are excessively individualistic, suffering much crime and incivility as a result. According to thisanalysis, the West needs to shift the balance away from individualism in favour of communitarianism, shift
the balance away from rights and toward collective responsibilities. I don’t find that a very attractive
analysis either.
Both sides of this debate can do a better job of learning from each other. We can aspire to a society thatis strong on rights and strong on responsibilities, that nurtures strong communities and strong individuals.
Indeed, in the good society strong communities constitute strong individuals and vice versa. Our objective
can be to keep the benefits of the statist revolution. Community justice is often oppressive of rights, often
subjects the vulnerable to the domination of local elites, subordinates women, it can be proceduarlly unfair
and tends to neglect structural solutions. Mindful of this, we might reframe the two challenges posed earlier
in the lecture:
1. Helping indigenous community justice to learn from the virtues of liberal statism - procedural fairness,rights, protecting the vulnerable from domination.
2. Helping liberal state justice to learn from indigenous community justice - learning the restorative
community alternatives to individualism.
This reframed agenda resonates with the ideas of Marianne Nielsen, when she writes that Canadiannative communities “will have the opportunity of taking the best of the old, the best of the new and learningfrom others’ mistakes so that they can design a system that may well turn into a flagship of social change”21.
Together these two questions ask how we save and revive traditional restorative justice practices in a waythat helps them become procedurally fairer, in a way that respects fundamental human rights, that securesprotection against domination? The liberal state can be a check on oppressive collectivism, just as bottomup communitarianism can be a check on oppressive individualism. A healing circle can be a corrective to ajustice system that can leave offenders and victims suicidally alone; a Charter of Rights and Freedoms acheck on a tribal elder who imposes a violent tyranny on young people. The bringing together of these
ideals is an old prescription - not just liberty, not just community, but liberte, egalite, fraternite.
Competitive individualism has badly fractured this republican amalgam. The social movement for
restorative justice does practical work to weld an amalgam that is relevant to the creation of contemporary
urban multicultural republics. Day to day it is not sustained by romantic ideals in which I happen to believe
21 Neilsen, Marianne, “Criminal Justice and Native Self-Government”, in Robert Silverman and Marianne Nielsen (eds.)
Aboriginal Peoples and Canadian Criminal Justice. Toronto: Butterworths, 1992, p. 255.

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like deliberative democracy. They want to do it for Hiroshi and for an old woman who Hiroshi pushed over
one day. That is what enlists them to the social movement for restorative justice; in the process they are, I
submit, enlisted into something of wider political significance.

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VISITING EXPERTS’ PAPERSRESTORATIVE JUSTICE: THEORIES AND WORRIESJohn Braithwaite＊
I. THEORIES OF WHY RESTORATIVE JUSTICE MIGHT RESTORE
In this paper I consider a set of theories that increasingly seem to have strong relationships with one
another – theories of reintegrative shaming, procedural justice, unacknowledged shame and defiance – thatoffer an explanation of why restorative justice processes might be effective in reducing crime andaccomplishing other kinds of restoration. Some of these theoretical claims are sure to be proved untrue by
the kind of R & D advocated here. Equally, where these theoretical claims turn out to be true, we will findthat the potential of this truth has not been sufficiently built into the design of restorative justiceprogrammes.
A. Reintegrative Shaming Theory
Crime, Shame and Reintegration (Braithwaite 1989) gives an account of why restorative justice processes
ought to prevent crime more effectively than retributive practices. The core claims are: (1) tolerance ofcrime makes things worse; (2) stigmatization, or disrespectful, outcasting shaming of crime makes crimeworse still; while (3) reintegrative shaming, disapproval of the act within a continuum of respect for theoffender, disapproval terminated by rituals of forgiveness, prevents crime.
In developing the theory of reintegrative shaming, I was much influenced by the restorative nature ofvarious Asian policing and educational practices, by what I saw as the effectiveness of restorative regulatory
processes for dealing with corporate crime both in Asia and the West, and by the restorative nature ofsocialization in Western families that succeed in raising law abiding children. Essentially, what that childdevelopment literature shows is that both permissive parenting that fails to confront and disapprove ofchildrens’ misconduct and punitively authoritarian parenting both produce a lot of delinquents; delinquency
is less likely when parents confront wrongdoing with moral reasoning (Braithwaite 1989). One implication
for restorative justice advocates of this substantial body of empirical evidence is that the justice system will
do better when it facilitates moral reasoning by families over what to do about a crime as an alternative topunishment by the state.
Restorative justice conferences work by inviting victims and supporters (usually family supporters) of
the victim to meet with the offender and the people who care most about the offender and most enjoy theoffender’s respect (usually including both the nuclear and extended family, but not limited to them). This
group discusses the consequences of the crime, drawing out the feelings of those who have been harmed.
Then they discuss how that harm might be repaired and any steps that should be taken to prevent
reoffending.
In terms of reintegrative shaming theory, the discussion of the consequences of the crime for victims (orconsequences for the offender’s family) structures shame into the conference; the support of those who
enjoy the strongest relationships of love or respect with the offender structures reintegration into the ritual.
It is not the shame of police or judges or newspapers that is most able to get through to us; it is shame inthe eyes of those we respect and trust.
Evidence from the first 548 adult and juvenile cases randomly assigned to court versus conference inCanberra, Australia, is that offenders both report and are observed to encounter more reintegrative shamingin conferences than in court, that conference offenders experience more remorse and more forgiveness thancourt offenders, and are more likely to report that they have learnt from the process that there are people
who care about them (Sherman and Strang 1997a). Data such as these call into doubt what was a common＊ Chair Regulatory Institutions Network Research,

School of Social Science,
Australian National University,
Australia

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early reaction to Crime, Shame and Reintegration. This was that contemporary urban societies are notplaces with the interdependence and community to allow the experience of shame and reintegration to be areality in such societies (see Braithwaite 1993b).
B. Procedural Justice Theory
The idea of reintegrative shaming is that disapproval is communicated within a continuum of respect forthe offender. A key way to show respect is to be fair, to listen, to empower others with process control, torefrain from bias on the grounds of age, sex or race. More broadly, procedural justice communicates respect(Lind and Tyler 1988; Tyler 1990). Conferences do not have all the procedural safeguards of court cases, yetthere are theoretical grounds for predicting that offenders and victims will find them fairer. Why?
Conferences are structurally fairer because of who participates and who controls the discourse. Criminal
trials invite along those who can inflict maximum damage on the other side; conferences invite those who
can offer maximum support to their own side, be it the victim side or the offender side. In other words thosepresent are expected to be fair and therefore tend to want to be fair. They tend not to see their job as doing
better at blackening the character of the other than the other does at blackening theirs.
Citizens are empowered with process control, rather than placed under the control of lawyers. There is
now quite a bit of evidence that procedural fairness predicts subsequent compliance with the law. For
example, in the Milwaukee domestic violence experiment (Bridgeforth 1990, p. 76), “arrestees who said (inlockup) that police had not taken the time to listen to their side of the story were 36% more likely to bereported for assaulting the same victim over the next 6 months than those who said the police had listened
to them” (Sherman 1993, p. 463; see also Paternoster et al. 1997). More broadly, in Why People Obey the Law,
Tyler (1990) found that citizens were more likely to comply with the law when they saw themselves astreated fairly by the criminal justice system. Sherman (1993) reviewed subsequent supportive evidence on
this question as did Tyler and Huo (2001).
The key questions are whether citizens feel they are treated more fairly in restorative justice processes
than in courts and whether they are more likely to understand what is going on. The answer seems to be
yes. Early results from the Canberra conferencing experiment show that offenders are more likely tounderstand what is going on in conferences than in court cases, felt more empowered to express theirviews, had more time to do so, were more likely to feel that their rights were respected, to feel that they
could correct errors of fact, to feel that they were treated with respect and were less likely to feel in
conferences that they were disadvantaged due to “age, income, sex, race or some other reason” (Barnes
1999; Sherman and Barnes 1997; Sherman et al. 1998). The NSW Youth Conferencing Scheme seems to beeven more successful than the Canberra programme on these dimensions (Trimboli 2000). Without the
randomized comparison with court, a number of other studies have shown absolutely high levels of citizen
satisfaction with the fairness of restorative justice processes, with such perceptions being higher the more
restorative the programmes are.
Given that there is now strong evidence that restorative justice processes are perceived to be fairer by
those involved and strong evidence that perceived procedural justice improves compliance with the law, it
follows as a prediction that restorative justice processes will improve compliance with the law.
C. The Theory of Unacknowledged Shame
Scholars working in the affect theory tradition of Sylvan Tomkins (1962) have a theoretical perspectiveon why restorative justice should reduce crime based more on the nature of shame as an affect than on
shaming, reintegration and stigmatization as practices. According to this perspective shame can be adestructive emotion because it can lead one to attack others, attack self, avoid or withdraw (Nathanson’s(1992) compass of shame). All of these are responses which can promote crime. A profound deficiency of
Braithwaite’s (1989) theory is that it is just a theory of shaming, with the emotion of shame left
undertheorised.
From this perspective, therefore, a process is needed that enables offenders to deal with the shame that
almost inevitably arises at some level when a serious criminal offence has occurred. Denial, for example
being “ashamed to be ashamed”, in Scheff’s words, is not an adaptive response. Shame is a normal emotionthat healthy humans must experience; it is as vital to motivating us to preserve social bonds essential to ourflourishing as is fear to motivating us to flee danger. Indeed Scheff (1990, 1994), Retzinger (1991) and Scheff48

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and Retzinger (1991) finger by-passed shame as the culprit in the shame-rage spirals that characterize ourworst violence domestically and internationally.
The evidence these authors offer for the promotion of anger through by-passed shame is voluminous butof a quite different sort from the more quantitative evidence adduced under the other propositions in thisand the last chapter. It consists primarily of collections of clinical case notes (preeminently Lewis’s 1971
research) and micro-analyses of conversations (preeminently Retzinger’ s 1991 marital quarrels). Yet thethrust of this work is also supported by Tangney’s (1995) review of quantitative studies on the relationshipbetween shame and psychopathology: guilt about specific behaviors, “uncomplicated by feelings of shameabout the self”, is healthy. The problem is “chronic self-blame and an excessive rumination over some
objectionable behavior” (Tangney 1995, p. 1141). Scheff and Retzinger take this further, suggesting thatshame is more likely to be uncomplicated when consequences that are shameful are confronted andemotional repair work is done for those damaged. Shame will become complicated, chronic, more likely todescend into rage if it is not fully confronted. If there is nagging shame under the surface, it is no permanent
solution to lash out at others with anger that blames them. Then the shame and rage will feed on eachanother in a shame-rage spiral. Consistent with this analysis, Ahmed (2001) has shown in a study ofbullying among 1200 Canberra school children, which has now been replicated in Bangladesh, that bullies
deal with shame through transforming it (into anger, for example), victims acknowledge and internalise
shame so that they suffer persistent shame, while children who avoid both bullying and being victimized bybullies have the ability to acknowledge and discharge shame so that shame does not become a threat to theself. Ahmed concludes that restorative processes may reduce crime because they create spaces where
there is the time and the tolerance for shame to be acknowledged, something that is not normally facilitatedin the formal courtroom context
According to Retzinger and Scheff’s work, if we want a world with less violence and less dominating
abuse of others, we need to take seriously rituals that encourage approval of caring behavior so that citizens
will acquire pride in being caring and non-dominating. With dominating behavior, we need rituals of
disapproval and acknowledged shame of the dominating behavior, rituals that avert disapprovalunacknowledged shame sequences. Retzinger and Scheff (1996) see restorative justice conferences as
having the potential (a potential far from always realised) to institutionalize pride and acknowledged shamethat heals damaged social bonds. Conferences in this formulation are ceremonies of constructive conflict.
When hurt is communicated, shame acknowledged by the person(s) who caused it, respect shown for thevictim’s reasons for communicating the hurt and respect reciprocated by the victim, constructive conflicthas occurred between victim and offender. It may be that in the “abused spouse syndrome”, for example,
shame is by-passed and destructive, as a relationship iterates through a cycle of abuse, manipulative
contrition, peace, perceived provocation and renewed abuse (see Retzinger 1991). Crime wounds, justiceheals; but only if justice is relational (Burnside and Baker 1994).
Moore with Forsythe (1995, p. 265) emphasise that restorative justice should not, in the words of Gipsy
Rose Lee, accentuate the positive and eliminate the negative; rather it should accentuate the positive andconfront the negative. Sylvan Tomkins (1962) adduces four principles for constructive management ofaffect: “(1) That positive affect should be maximised. (2) That negative affect should be minimised. (3) That
affect inhibition should be minimised. (4) That power to maximise positive affect, to minimise negative affect,
and to minimise affect inhibition should be maximised.” (Moore with Forsythe 1995, p. 264). Nathanson(1998, p. 86) links this model to an hypothesized capacity of restorative justice processes to build
community, where community is conceived as people linked by scripts for systems of affect modulation.
Community is built by: “1) Mutualization of and group action to enhance or maximize positive affect; 2)
Mutualization of and group action to diminish or minimize negative affect; 3) Communities thrive best when
all affect is expressed so these first two goals may be accomplished; 4) Mechanisms that increase the power
to accomplish these goals favor the maintenance of community, whereas mechanisms that decrease thepower to express and modulate affect threaten the community.”In the most constructive conflicts, shame will be acknowledged by apology (reciprocated by forgiveness)(Tavuchis 1991). Maxwell and Morris (1996) found in New Zealand family group conferences that theminority of offenders who failed to apologise during conferences were three times more likely to reoffend
than those who had apologised. Interpreting any direction of causality here is admittedly difficult.

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Moore (1994, p. 6) observes that in courtroom justice shame is not acknowledged because it is “hidden
behind impersonal rhetoric about technical culpability.” Both Moore with Forsythe (1995) and Retzinger
and Scheff (1996) have applied their methods to the observation of restorative justice conferences,observing the above mechanisms to be in play and to be crucial to shaping whether conferences succeed or
fail in dealing with conflicts in ways that they predict will prevent crime. For Retzinger and Scheff (1996)
conferences have the ostensible purpose of material reparation; but underlying the verbal and visible
process of reaching agreement about material reparation is a more non-verbal, less visible process ofsymbolic reparation. It is the latter that really matters according to their theoretical framework, so theemphasis in the early restorative justice literature on how much material reparation is actually paid
becomes quite misguided.
The evidence now seems strong that unacknowledged shame contributes to violence; Sherman andBarnes’s (1997), Sherman et al’s (1998, pp. 127-9) and Harris’s (2001) admittedly preliminary evidence
suggests that in conferences offenders may accept and discharge shame more than when they go throughcourt cases. If both propositions are correct, conferences might do more to reduce crime than court cases.
D. Defiance Theory“Disrespect begets disrespect”, claims Howard Zehr (1995), and few things communicate disrespect aseffectively as the criminal exploitation of another human being. Lawrence Sherman (1993) has woven
propositions from the foregoing sections about procedural justice, reintegrative shaming andunacknowledged shame into an integrated theory of defiance. It has three propositions:
1. Sanctions provoke future defiance of the law (persistence, more frequent or more serious violations) tothe extent that offenders experience sanctioning conduct as illegitimate, that offenders have weak bonds tothe sanctioning agent and community, and that offenders deny their shame and become proud of theirisolation from the sanctioning community.
2. Sanctions produce future deterrence of law-breaking (desistance, less frequent or less serious violations)to the extent that offenders experience sanctioning conduct as legitimate, that offenders have strong bonds
to the sanctioning agent and community, and that offenders accept their shame and remain proud ofsolidarity with the community.
3. Sanctions become irrelevant to future law breaking (no effect) to the extent that the factors encouraging
defiance or deterrence are fairly evenly counterbalanced. (Sherman 1993, pp. 448-9).
Sherman hypothesises that restorative justice processes are more likely to meet the conditions ofproposition 2 than traditional punitive processes. The evidence to date supports this. We have already seenthat restorative processes are accorded high legitimacy by citizens, that they are better designed toempower those with strong bonds with the offender and that they outperform court in inducing theacknowledgement and discharging of shame for wrongdoing .
While Sherman (1993) reviews some suggestive evidence that law breaking might vary under theconditions that are hypothesized to vary defiance, a systematic test of defiance theory remains to beundertaken. Results from the RISE experiment are still very preliminary here, only laying the foundations
for the test of this theory. One published early result encouraging to defiance theory, however, was thatwhile 26% of drink drivers randomly assigned to court felt bitter and angry after court, only 7% of offenders
felt bitter and angry after a conference (Sherman and Strang 1997b).
Hagan and McCarthy (1997, pp. 191-7) have tested Sherman’s defiance theory against the prediction thatchildren who have been humiliated, treated unfairly and had bonds severed by virtue of being victims ofsexual abuse or physical violence (with bruising or bleeding) will have their criminal behaviour amplified bytraditional criminal justice processing more than offenders who have not been abused. Their data, collectedamong homeless children in Toronto and Vancouver, supported the defiance theory prediction.
Sherman’s defiance theory is not an armchair theory, but one grounded in the preliminary R & D on
conferencing in Australia. It is therefore important to illustrate the kind of case that motivated theprediction that restorative justice will prevent crime by reducing defiance. Rage and Restorative
Incapacitation (Box 1) is a recent case from the RISE experiment in Canberra.
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Box 1: Rage and Restorative Incapacitation
One man assaulted another very seriously; the victim was left lying in a litre and a half of his own
blood and required $3000 in dental work. The outcome of the conference was simply an agreement forthe offender never to go within an agreed distance of the victim. On the face of it, this seems a totally
inadequate remedy for a life-threatening assault; a court would likely have imposed prison time for it.
But the participants in the conference would have seen such a court outcome as less just.
The victim asked for compensation for his dental bills from the offender. The offender had no money andno job, so he felt he could not agree to this. He had just come out of prison for another offence and he
was about to go back to prison for a third matter. A court, given his record, would likely have extended
this sentence for such a serious assault. During his last prison term, the offender cultivated a spiral ofrage against the victim of the assault. He believed the victim had raped his fiance. The fiance did notwant to lay charges, partly because all involved were part of a heroin subculture in which one simply
didn’t press charges against others. Secondly, the circumstances of the alleged rape were that the rape
victim had been making love to another friend of her fiance, which her alleged rapist took to be a signalthat it was okay for him to do the same. It seemed plausible to our observer and to the police that thisrape had occurred, especially when the assault victim said during the conference; “I didn’t go out of myway to rape her.” However, others at the conference did not believe that the rape had occurred.
It seemed to be the case that the victim and offender were thrown into regular contact because theypurchased heroin from the same place, though this was never explicitly said. The victim was terrified
that the offender would get angry again back in prison, come out and kill him this time. If the offender
got an extra few months in jail for the assault, this would make such rage even more likely. So thevictim and his supporters were well pleased with an outcome that guaranteed him a secure distance fromthe offender. The offender never rationally planned to do such damage to the victim. He had “lost it”,
knew he was strong enough to kill the victim if he did the same again. He and his supporters wanted tosecure him against a shame-rage spiral that would put him back in prison for a third term. While theconference failed to restore harmony, it did restore peace in a way that both sides saw as just in thecircumstances.
My hypothesis is that the participants are right; thiswas better justice than the court would have delivered, and a justice that may have prevented a murderby defusing defiance and putting in place a permanent voluntary segregation regime that was more
effective incapacitation than the temporary compulsory segregation of a prison. In the four years since
the conference, neither the victim nor the offender have been arrested for anything.
II. WORRIES ABOUT RESTORATIVE JUSTICE
A. Restorative Justice Practices can Increase Victim Fears of Re-Victimization
The research of Heather Strang and Kathy Daly in Australia shows that some victims of crime are
actually worse off as a result of going into a restorative justice process, particularly in terms of fear of being
re-victimized. However, these studies also establish that reduction of victim’s fears of re-victimization
appear to be about twice as common. While victims are mostly surprised to learn how shy, ashamed andinadequate offenders are, some offenders are formidable and scary. Such cases can destabilize restorative
justice programmes in the media. Our worst case in Canberra involved an offender who threatened a woman
with a syringe filled with blood. The conference was not well run and feelings between offender and victim
deteriorated. Subsequently, the victim found a syringe left on the dashboard of her car, which she took to bea threat from the offender (though this allegation was never proved). The case was covered by a local
television station. Out of two thousand Canberra conferences (some with no victims, some with 20) this is
the only case of escalated victim fear that hit the media. But one can be enough! Restorative justiceprogrammes need to offer much more comprehensive support to the victims who face such traumas.
A related worry is that restorative justice programmes can treat victims as no more than props for
efforts to rehabilitate victims. This concern became acute with a number of British mediation programmes

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during the 1980s where it was common for the offender and victim not to meet face to face, but rather for the
mediator to be a go-between. Where no meeting occurs, Retzinger and Scheff’s (1996) symbolic reparation,
which we have seen is more important to most victims than material reparation, is more difficult. In thesecircumstances we can expect the dissatisfaction of victims to focus on the limits of the material reparation
they get: “projects which claim to provide reparation for victims actually operating to maximise the potential
for diversion of children from prosecution” (Haines 1998, p. 6).
Victims are often enticed into restorative justice before they are ready. Pressure to achieve “speedy
trial” objectives for offenders can be quite contrary to the interests of victims. Indeed, even in terms of theinterests of offenders, rushing into a restorative justice meeting can be counterproductive with a victim whowith a bit more time would be ready to forgive rather than to hate. Best practice is probably to offer victimsof serious crime a healing circle with victims only before proceeding to a victim-offender circle. The key
judgement for the victim support circle is whether the victim is ready (if ever) to meet the offender.
B. Restorative Justice can be a “Shaming Machine” that Worsens the Stigmatization of Offenders
The “shaming machine” concern has been well articulated in Retzinger and Scheff’s (1996) essay,“Strategy for Community Conferences: Emotions and Social Bonds”, written after their observation of anumber of Australian conferences, from which they came away concerned about the damaging effects ofsarcasm, moral superiority and moral lecturing in particular:
The point about moral indignation that is crucial for conferences is that when it is repetitive and out ofcontrol, it is a defensive movement in two steps: denial of one’s own shame, followed by projection of blame
onto the offender... For the participants to identify with the offender, they must see themselves as like herrather than unlike her (There but for the grace of God go I). Moral indignation interferes with theidentification between participants that is necessary if the conference is to generate symbolic reparation. In
our judgement, uncontrolled repetitive moral indignation is the most important impediment to symbolic
reparation and reintegration. But on the other hand, to the extent that it is rechannelled, it can be
instrumental in triggering the core sequence of reparation...Intentional shaming in the form of sustained
moral indignation or in any other guise brings a gratuitous element into the conference, the piling of shameon top of the automatic shaming that is built into the format. This format is an automatic shaming
machine...in a format that is already heavy with shame, even small amounts of overt shaming are very likely
to push the offender into a defensive stance, to the point that she will be unable to even feel, much lessexpress, genuine shame and remorse.
Restorative justice processes are “already heavy with shame” as a result of the simple process ofvictims and their supporters talking about the consequences of the crime. In effect, that is all one needs.
Umbreit (1994, p. 4) makes a similar point on victim defensiveness: “For individual victims, use of suchterms as ‘forgiveness’ and ‘reconciliation’ are highly judgmental and preachy, suggesting a devaluing of thelegitimate anger and rage the victims may be feeling at that point.” The ideal in terms of avoiding labels is
beautifully articulated from the Canadian First Nations experience by Ross (1996, p. 170):
How would you react if a victim kept piling judgmental labels on you, one after the other, calling you“vicious, perverted, deranged, vile, sickening” and so forth? Are they the kinds of conclusions you’d want toaccept about your “whole” self? Or are they conclusions you’d want to fight about? Or if you didn’t feel likefighting, would you simply stop listening to them, let them wash over you, never really let thempenetrate?...On the other hand, what if you were an offender who sat in a circle with others and listened tosomeone simply relive their own reactions: their sense of violation and vulnerability, their fear of strangers,
their inability to sleep, their sudden eruptions into tears and shaking at work, their sense of isolation fromfamily and friends, their feelings of dirtiness, their gnawing suspicion that there was something so wrong
with them that they deserved to be hurt and hated. What if you then heard all the relatives and friends ofyour victim speak in the same way, from their hearts, painting pictures of their own confusions, theirpowerlessness to help, their fear for the future of their daughter, sister, aunt or mother? Would you be able
to shut that out as easily, to just stop listening? It is the experience of Hollow Water that careful heart
speaking, with its nonjudgmental disclosure of feelings, no matter how intense, is ultimately irresistible tothe vast majority of offenders.
Braithwaite and Mugford (1994) think that the best protection against the vices of moral lecturing andsarcasm is to do a good job of inviting a large number of caring supporters for both the victim and the52123RD INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS
offender, a point also discussed by Retzinger and Scheff (1996). If these invitees really do care about theoffender, they will counter moral lecturing with tributes to the sense of responsibility and other virtues ofthe offender. Then, even if the sort of connection with the moral lecturer that would allow productively
reparative communication is severed, the bond with the other participant who comes to her defence isstrengthened in the same sequence.
C. Restorative Justice is Prone to Capture by the Dominant Group in the Restorative Process
Indigenous justice can empower elders to tyrannize the young of their tribe. Critics have alleged this ina most alarming way in Canada through allegations by women from a reserve that project leaders of aprogramme of Indigenous justice administered by a panel of elders: “manipulated the justice system toprotect family members who had committed violent rapes, had intimidated victims and witnesses into
withdrawing charges, had perjured themselves during the trial of the project leader’s son (for rape), hadslashed tyres of community members who tried to speak out and sent the alleged ‘rape gangs’ to theirhomes, and generally had used the project to further their strangle-hold on the community and the justice1
system.”In New Zealand, I saw one tragic conference where the state funded the travel of an offender to anothercommunity because his whanau (extended family) wanted to separate him from a liaison with a girlfriend it
did not want. In pushing for this the Youth Justice Advocate was not an advocate for the youth, who washeartbroken by this outcome, but was captive of the whanau which was the repeat player in the use of his
legal services.
Observational work on juvenile justice conferences quite regularly reports lower levels of offender
involvement than involvement by their family members. Maxwell and Morris’s (1993, p. 110-12) interviews
found fully 45% of young offenders, compared to 20% of family members saying they were not involved in
making the conference decision. In Canberra and South Australia, Daly (1996) reported 33% of offenders not
to be engaged with the process. The Maxwell and Morris (1993) data showed family members of theoffender having by far the largest influence on the decision, followed by professionals who were present, theyoung offender and the victim (not surprising since the victim was absent from a majority of the conferencesin this study). Haines (1997) critique of conferences as a “room full of adults” who dominate a child istherefore often correct. All such failures are relative, however: the RISE experiment in Canberra showsthat young offenders are considerably more likely to believe that they could express their views when theywent to a conference than when they went to court (Sherman and Barnes 1997; Sherman et al. 1998, pp. 1212). McGarrell, Olivares, Crawford and Kroovand (2000, p. 44) found that 84% of young offenders “feltinvolved” in their conference compared to 47% of the control group who felt involved in their alternative
diversion. 86% of conferenced youth felt that they had been given a chance to express their views comparedto 55% of controls. The least negative results on this question are from the Queensland conferencing
programme, where Hayes, Prenzler with Wortley (1998, p. 20) report 97% of young offenders as “not pushed
into being at the conference” and “NOT pushed into things in the conference” and 99% saying both that “I
got to have my say at the conference” and that “People seemed to understand my side of things”.
The best remedy to this problem is systematic attention in the restorative justice preparatory process toempowerment of the most vulnerable parties - individual victims and offenders - and systematic
disempowerment of the most dominant parties - the police, school authorities, state welfare authorities andsometimes large business corporations. How is this accomplished? The most critical thing is to give theindividual offender and the individual victim the one-on-one power in a meeting in advance of the conference
to decide who they do and do not want to be there to support them. Unfortunately, the practice is often toempower the parents of young offenders to decide who should be there. They can certainly have alegitimate say; but on the offender side it is only the offender who should make the final decision about who
will make her most comfortable, who she most trusts. To the extent that one is concerned here with
1 This is a quote that I treat as anonymous with respect to person and place. I was able to confirm the same broad story
from two other sources.

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imbalances of power between children and adults, men and women, major corporations and consumers,
dyadic victim-offender mediation cements an imbalance. Imbalances are muddied, though hardly removed,by conferences between two communities of care, both of which contain adults and children, men andwomen, organized interests and disorganized individuals.
D. Restorative Justice Practices can Trample Rights Because of Impoverished Articulation ofProcedural Safeguards
Robust critiques of the limitations of restorative justice processes in terms of protection of rights havebeen provided by Warner (1994), Stubbs (1995), Bargen (1996) and Van Ness (1998). There can be little
doubt that courts provide superior formal guarantees of procedural fairness than conferences.
At the investigatory stage, Warner (1994, p. 142) is concerned:
Will police malpractice be less visible in a system which uses FGCs [family group conferences]? One of
the ways in which police investigatory powers are scrutinised is by oversight by the courts. If the police act
unlawfully or unfairly in the investigation of a case, the judge or magistrate hearing the case may refuse toadmit the evidence so obtained or may criticise the police officer concerned. Allegations of failure to requireparental attendance during questioning, of refusal to grant access to a lawyer, of unauthorized searches andexcessive force could become hidden in cases dealt with by FGCs.
These are good arguments for courts over restorative justice processes in cases where guilt is in dispute.
But the main game is how to process that overwhelming majority of cases where there is an open and shutadmission of guilt. Here no such advantage of court over conference applies, quite the reverse. As Warnerherself points out, a guilty plea “immediately suspends the interests of the court in the treatment of the
defendant prior to the court appearance” (Hogg and Brown 1985). In the production line for guilty pleas in
the lower courts there is not time for any of that. In restorative justice conferences there is. Mothers inparticular do sometimes speak up with critical voices about the way their child has been singled out, hasbeen subject to excessive police force, and the like. Police accountability to the community is enhanced by
the conference process. And such deterrence of abuse of police power that comes from the court does notdisappear since the police know that if relations break down in the conference, the case may go to court as
well.
Police therefore have reason to be more rather than less procedurally just with cases on the conference
track than with cases on the court track. The preliminary RISE data from Canberra suggest they are. In
about 90% of cases randomly assigned to a conference, offenders thought the police had been fair to them(“leading up to the conference” and “during”); but they only thought this in 48-78% (depending on thecomparison) of the cases randomly assigned to court (Sherman et al. 1998). Offenders were also more likely
to say they trusted the police after going through a conference with them than after going through a courtcase with them.
At the adjudicatory stage, Warner (1994) is concerned that restorative justice will be used as an
inducement to admit guilt. In this restorative justice is in no different a position than any disposition shortof the prospect of execution or life imprisonment. Proffering it can induce admissions. Systemically though,one would have thought that a shift from a punitive to a restorative justice system would weaken the allureof such inducements. In the preliminary data from the four RISE experiments in Canberra, there is a slighttendency for court offenders to be more likely than conference offenders to agree that “The police made you
confess to something which you did not do in this case”. But in the preliminary results this difference wasonly statistically significant in the Juvenile Personal Property experiment (Sherman et al. 1998, pp. 123-4).
Warner (1994) is right, however, to point out that guilt is not always black and white. Defendants might
not understand self-defence, intoxication and other defences that might be available to them. Even so, itremains the case that such matters are more likely to be actually discussed in a conference lasting about 80
minutes (Canberra data) than in a court case averaging about 10 minutes (Canberra data). This may be asimple reason why Canberra offenders who go through a conference are more likely to believe that theproceedings “respected your rights” than offenders who went through court (Sherman and Barnes 1997;
Sherman et al. 1998).
At the dispositional or sentencing stage, Warner (1994) makes some good points about the care needed toensure that sentences reflect only offences the evidence in this case has shown to have been committed and54

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only damage the evidence shows to have been done. We have had conferences in Canberra where victims
have made exaggerated claims of the damage they have suffered, in one case many thousands of dollars inexcess of what more thorough subsequent investigation proved to be the truth. Warner (1994) and Van
Ness (1998) are both concerned about double jeopardy when consensus cannot be reached at a conference
and the matter therefore goes to court, though Warner (1994) concedes it is not “true double jeopardy”.
Indeed it is not. The justice model analogue would seem to be to retrial after a hung jury or appeal of asentence decision (which no one would call double jeopardy) rather than retrial after acquittal. Moreover, it
is critical that defendants have a right to appeal in court an unconscionable conference agreement they havesigned, to have lawyers with them at all stages of restorative justice processes if that is their wish and thatthey be proactively advised of these rights.
Most restorative justice programmes around the world do not legally guarantee the American Bar
Association’s (1994) guideline that “statements made by victims and offenders and documents and othermaterials produced during the mediation/dialogueue process[should be] inadmissible in criminal or civil
court proceedings”. This is a problem that can and should be remedied by appropriate law reform.
Van Ness (1998) has systematically reviewed the performance of restorative justice programmes forjuveniles against the United Nations Standard Minimum Rules for the Administration of Juvenile Justice(“The Beijing Rules”). Restorative justice programmes are certainly found wanting in the review though heconcludes that they often tend to outperform traditional court processes on rules such as the right to a
speedy trial. For example, the New South Wales Young Offenders Act 1997 has the following requirement:"43. Time Limit Holding Conferences: A conference must, if practical, be held not later than 21 days after
the referral for the conference is received." While Van Ness’s work certainly affirms our hypothesis that
restorative justice processes can trample on rights, whether rights will be better or worse protected after
the introduction of a restorative justice programme is a contextual matter. For example, when in South
Africa prior to the Mandela Presidency thirty thousand juveniles a year were being sentenced by courts toflogging, who could doubt that the institutionalization of restorative justice conferences might increase
respect for childrens’ rights, as Sonnekus and Frank (1997, p. 7) argue:[Under Apartheid] the most common sentence given was corporal punishment and children often
preferred a whipping instead of residential care in a reformatory or school of industry. The time children
spent in prison while awaiting trial and placement was not applied towards their sentence, thus a child may
have served double and even triple sentences.
Nevertheless, rights can be trampled because of the inferior articulation of procedural safeguards inrestorative justice processes compared to courts. The conclusion will seek to grapple with how justicemight be enhanced in the face of this critique by a creative interplay between restorative fora and traditional
western courts.
CONCLUSION
We have seen that there are theoretical grounds for believing that restorative justice can be effective,
but also grounds for worry that restorative justice can trample the rights of offenders and victims, candominate them, lack procedural protections and can give police, families or welfare professionals too muchunaccountable power. Braithwaite and Parker (1999) suggest three civic republican remedies to these
problems:(1) Contestability under the rule of law; a legal formalism that enables informalism while checking theexcesses of informalism;(2) De-individualising restorative justice, muddying imbalances of individual power by preferring
community conferences over individual-on-individual mediation;(3) Vibrant social movement politics that percolates into the deliberation of conferences, defends
minorities against tyrannies of the majority, and connects private concerns to campaigns for public
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Lawyers who work for advocacy groups - for Indigenous peoples, children, women, victims of nursing
home abuse - have a special role in the integration of these three strategies. Lawyers are a strategic set ofeyes and ears for advocacy groups that use specific legal cases to sound alarms about wider patterns ofdomination. When appropriate public funding is available for legal advocacy, advocates can monitor lists ofconference outcomes and use other means to find cases where they should tap offenders or victims on theshoulder to advise them to appeal the conference agreement because they could get a better outcome in the
courts. They thus become a key conduit between rule of law and rule of community deliberation. It is a
mistake to see their role as simply one of helping principles of natural justice and respect of rights to filter
down into restorative justice. It is also to assist movement in the other direction - to help citizens topercolate up into the justice system their concerns about what should be restored and how. A richdeliberative democracy is one where the rule of law shapes the rule of the people and the concerns of thepeople reshape the rule of law. Top-down legalism unreconstructed by restorative justice from below is aformula for a justice captured by the professional interests of the legal profession (the tyranny of lawyers).
Bottom-up community justice unconstrained by judicial oversight is a formula for the tyranny of the majority.
When law and community check and balance each other, according to Braithwaite and Parker (1999),
prospects are best for a rich and plural democracy that maximizes freedom as non-domination.
Communitarianism without rights is dangerous. Rights without community are vacuous. Rights will
only have meaning as claims the rich can occasionally assert in courts of law unless community disapproval
can be mobilized against those who trample the rights of others. Restorative justice can enliven rights asactive cultural accomplishments when rights talk cascades down from the law into community justice.
None of the problems I have discussed in this paper have been satisfactorily solved. Decades of R & D
on restorative justice processes will be needed to explore all these worries properly. For the moment, we
can certainly say that the research does demonstrate both the promise and the perils of restorative justice.
It is, however, an immature literature, short on theoretical sophistication, on rigorous or nuanced empiricalresearch, far too dominated by self-serving comparisons of “our kind” of restorative justice programme with“your kind” without collecting data (or even having observed “your kind” in action!). That disappoints when
the panorama of restorative justice programmes around the globe is now so dazzling, when we have so muchto learn from one another’s contextual mistakes and triumphs.

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123RD INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERSVICTIM PROTECTION IN CRIMINAL PROCEEDINGSTHE VICTIM’S RIGHTS TO INFORMATION, PARTICIPATION AND
PROTECTION IN CRIMINAL PROCEEDINGS
Sylvia Frey＊

I. INTRODUCTION“In criminal proceedings it’s all just about the offender!“ Statements like this - and similar remarks – havebeen made by the victims of criminal offences over and over again.
Of course criminal proceedings are necessarily oriented towards offenders. Whether a criminal offence
has been committed and whether the perpetrator is guilty has to be established in accordance with Rule ofLaw criteria and provisions. These are core Rule of Law requirements that nobody wants to weaken.
However, they are just one aspect of the matter.
It is particularly the case that a social state based on the Rule of Law cannot just confine itself to callingthe offender to account – however important that may be. A social state based on the Rule of Law also has
the duty of showing concern for the victims of a criminal offence. The victims are not only burdened with theoffence; they also face the burden of a criminal trial. Here the victim is once again confronted with theoffence. If the victim has to give testimony against the offender in court, he or she will have to face theoffender th∗ere again. The anxiety and feelings experienced here particularly by the victims of sexual
offences or of serious offences involving violence cause great stress. Repressed feelings come to the surface
again through being confronted by the offender.
Giving greater weight in criminal proceedings to the victim’s interests and developing their rights has, fora long time now, been the focus of various legislative projects in relation to the German Criminal Procedure
Code. This has not, however, always been the case. For a long time it was actually the offender, his rights
and his protection that took up the foreground. It has only been since the 1980s with the scientificadvancement of victimology – the academic discipline concerned with the victims of crime – that a lively
discussion was set in motion regarding victim protection in criminal proceedings. A first important milestone
in the course of this discussion was the passage of victim protection legislation in 1986. The discussion that
had started continued, and further important legislative projects followed with regard to victim protection.
Today, in the German Criminal Procedure Code, we have a comprehensive set of provisions guaranteeing
the rights and the protection of victims in criminal proceedings. Nevertheless, there is a lot that still has tobe done. At the moment, a reform of the German Criminal Procedure Code is under way in Germany, andhere once again one of the main areas of attention is victim protection.
I would like to outline the measures in German criminal procedure law that relate to the protection of
victims and witnesses. I have divided my paper into two parts.
In the first part I will be describing the victim’s legal position. I shall be going into the information andprocedural rights of victims during criminal proceedings. Do victims get information on the outcome of theinvestigation proceedings? Are they informed about the stage proceedings have reached and about the further
course of proceedings? Do victims hear anything about the outcome of the court proceedings? Are victims＊

Executive Assistant,
Section on Criminal Procedure (Court Proceedings),
Federal Ministry of Justice,
Germany

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allowed to inspect the files? Are victims informed about the offender’s custody or release from custody? Arethey allowed to be present during the court hearing? Are victims allowed to participate in the proceedings incertain cases?
I would like to answer these questions for you and show what the improvements are that we are aiming atin the framework of our reform of criminal proceedings, especially as regards rights to information.
In the second part I am going to look at the victim’s situation as a witness in the proceedings. Are any
persons who may be rendering assistance allowed to be present during the examination of the victim? Are
victims required to give their personal particulars at the examination? Can a victim be examined by video
link? Does the victim have to give testimony in the defendant’s presence or in front of the general public?
Does the victim have to wait for his or her examination in the corridor outside the courtroom, where he may
be exposed to meeting the defendant? You will be hearing the answers to these questions in the second partof my paper.
II. PART 1: INFORMATION AND PARTICIPATION RIGHTS OF THE VICTIM IN CRIMINALPROCEEDINGS
A. Information Rights
Victims of criminal offences who have laid a criminal information and who want the offender to be called toaccount obviously want to hear what has happened to their criminal information. In the German Criminal
Procedure Code their rights to information are dealt with in various places.
1. Information During the Investigation Proceedings
It is provided by statute that the victim of a criminal offence who has also laid a criminal information willautomatically be notified by the public prosecution office when the investigation proceedings are terminated(section 171 German Criminal Procedure Code, Number 89 of the Guidelines for Criminal Proceedings andfor Regulatory Fining Proceedings). These Guidelines apply uniformly throughout the Federation. They
take the form of directives for action on the part of public prosecutors in normal cases.
2. Information During the Court Proceedings (Intermediate and Main Proceedings)
In regard to the question of what information the victim receives during court proceedings one has to bearin mind that the proceedings are not party proceedings. The victim is not a plaintiff or a party to theproceedings. As a rule, victims are witnesses in the proceedings. If, however, they are not needed in thecriminal proceedings as witnesses, the main proceedings not infrequently take place without the participationof the victim of the offence. This may, for instance, be the case where the offender has made a confession.
Notification of the date set down for the main (court) hearing
For the reason just stated victims are not automatically notified about when the court hearing against thedefendant will be taking place. If a victim has not been summoned as a witness, there is basically no
obligation to inform him of the date set down for the court hearing. Here the victim is merely able to make arequest for relevant information from the court or the public prosecution office. In practice, the court or the
public prosecution office will certainly give the victim the information he seeks. But there is no statutory
obligation for them to do so.
Information on the stage reached in the proceedings
There is also no express obligation for the court or the public prosecution office to provide the victim withinformation on the stage proceedings have reached or on the course of proceedings. However, the victim is
free to address the relevant question to the court or to the public prosecution office at any time. The court or
the public prosecution office will decide – exercising their duty-bound discretion – on the extent to which
information will be given.
Information on the outcome of the court proceedings
The victim will not automatically be informed of the outcome of the court proceedings. If the victim wants
to know anything about the outcome, he will have to make the relevant application to the court. In that casethe court will, however, be obliged to give the victim the information (section 406d German Criminal
Procedure Code).

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3. Inspection of Files and Information and Copies from the Files
In principle, the victim is not able to inspect the files himself. The provisions of German Criminal
Procedure Code are designed in such a way as to make inspection always take place via a Rechtsanwalt – inother words, via a lawyer practising as an attorney.
The reason for these provisions is mainly due to aspects arising under the law of data protection. In acase file one finds a large amount of information concerning not only the victim but also the offender andother people. It is expected of a Rechtsanwalt, i.e. a practising attorney, that he or she will deal with caution
and in a conscientious manner with the information in the files – by virtue of his being bound by professional
ethics. Victims may, however, be given information or copies from the files (section 406e paragraph 5
German Criminal Procedure Code). They will, however, have to address the relevant application to the
public prosecution office or the court. The public prosecution office or the court will then decide on thisapplication in the exercise of their duty-bound discretion. A refusal to give information or copies can becontested in court (section 406e paragraph 4 and 5 German Criminal Procedure Code).
Let me give you an example here:
An accident victim wants to have a copy of the sketch made of the accident so as to be able to submit it to
the insurance company. The public prosecution office, however, refuses to hand over a copy of the sketch.
The victim can now turn to the court and obtain a review of this refusal.
4. Information about Release from Custody
Particularly for the victims of sexual offences and of offences involving violence it is important for theirow2n sense of personal wellbeing that they should know whether the offender is at liberty or not. According
to law as it presently stands, the victim of a criminal offence can only request the penal institution – in theform of a written application – to state whether the offender is in custody and when his release canforeseeably be reckoned with. This is dealt with in section 180 paragraph 5 of the Prison Act.
The prison authority is, however, not obliged to provide information. In making its decision, it must
weigh up the legitimate interest of the victim in obtaining this information against such interests of the prison
inmate as are worthy of protection.
The victim can also ask the public prosecution office or the court. They are not obliged to giveinformation. They will decide in the exercise of their duty-bound discretion.
5. Reform of the German Criminal Procedure CodeAs we see, the rights of the victim of a criminal offence to notification and information have been dealt
with only in respect of certain points. But practice shows that the need for information felt by victims ofcriminal offences is much more substantial. For this reason, the wish for further development of informationrights has repeatedly been expressed.
At present, a bill is being drafted to reform the German Criminal Procedure Code. One of the focal pointsof this envisaged legislation is victim protection. Particular attention is being devoted both to eliminating the
deficit with regard to information rights and to taking greater account of the interests of victims. Criminal
proceedings are also about victims. They are the ones who suffer. Violation by the offender of their legal
positions is what forms the subject-matter of the proceedings. The victims’ desire not to be excluded fromthese proceedings because of lack of information is certainly understandable. That the victims of offences
involving violence and of sexual offences want to know whether or not they face the possibility of bumping
into the offender in the street is equally understandable.
On this ground it is envisaged that in future victims will be able to obtain the following information upon
application:•

Information on the course of proceedings and on the stage they have reached.

•

Information about the decision on whether to open the main proceedings.

•

Notification of the date set down for the main (court) hearing.

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Information on custody, committal or release, or on relaxation of the conditions under which theoffender concerned is being held in prison.

B. Proceedings to Compel Public Charges
Ladies and Gentlemen – as I said just now, the victims of a criminal offence receive notification from thepublic prosecution office when the proceedings have provisionally been terminated. But what can a victim do
if he or she is not satisfied with such termination? Is there any chance of the victim being able to take action
against this termination?
The answer to this question will depend on what the reasons are for the public prosecution office’s
terminating the proceedings.
1. Termination for Lack of Suspicion of Commission of a Criminal Offence(Section 170 German Criminal Procedure Code)If the public prosecution office terminates the proceedings because – in the light of the investigations
pursued - there is not sufficient suspicion that the accused committed the criminal offence, the victim cantake action against such termination (section 172 German Criminal Procedure Code).
The victim must start by filing a complaint with the public prosecution office. The public prosecution
office will then have the opportunity of reviewing the termination once again. If the public prosecution office
sticks to the termination, the case will be reviewed by the regional public prosecution office. If the regional
public prosecution office also refuses to prefer public charges, the victim can then bring an action before theHigher Regional Court for a judicial review.
2. Termination on Other Grounds
In all other cases of termination by the public prosecution office, for example, termination on the ground of
negligibility pursuant to section 153 or to section 153 a CCP, there is no provision for a proceeding to compel
public charges (section 172 paragraph 2 German Criminal Procedure Code).
This is connected with the intention behind the proceeding to compel public charges. The latter chiefly
serves the purpose of securing the principle of mandatory prosecution. The public prosecution office isobliged to prosecute criminal offences and, provided the prerequisites are fulfilled, to prefer public charges.
To secure this obligation, provision was made for the possibility of pursuing a proceeding to compel
preferment of public charges.
When the public prosecution office terminates proceedings, for example on the ground of negligibility, it
regularly proceeds on the basis of the accused’s guilt. On the basis of an evaluation of the facts it dispenses,
however, with further prosecution of the matter on discretionary grounds.
Example:A was accused of giving the victim B a slap on the face. The background to this was a dispute between
neighbours. A had been until then a respectable person. The public prosecution office terminates theproceedings on condition of payment by A of a sum of money to an association for victim protection.
If in such a case the victim thinks that meeting the condition of payment of a sum of money is too lenient,
it is true that he cannot get a court review – as in the case of a proceeding to compel preferment of publiccharges –but he can indeed file an ordinary complaint with the public prosecution office. If he does so, thepublic prosecutor will review his own decision. If the latter adheres to his original decision, the regional
public prosecution office will review this decision once again. If the regional public prosecution office also
does not remedy the complaint, then the proceedings are over. No further court review will take place.
C. Rights of Presence During the Main (Court) Hearing
The question as to what extent a victim is allowed be present during the entire main hearing depends onwhether the victim is needed as a witness or not.
If the main hearing is held in public and the victim has not been summoned as a witness, the victim will –like everybody else – have the right to be present during the entire main hearing.

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If the victim is needed as a witness in the case, the general provisions shall apply as for all witnesses.
This means that the victim is not allowed to follow the proceedings in the courtroom until he or she isexamined. Only after his examination will he be allowed to remain in the courtroom if the hearing is being
held in public. What lies behind this provision is the fact that a witness should give his testimony
uninfluenced by the course the proceedings have taken until he is called as a witness. The sole fact of a
victim’s status as such does not confer on the victim the right to continuous presence during the hearing.
D. Private Accessory Prosecution
With regard to a number of offences Parliament has, however, strengthened the legal position of victims.
In a private accessory prosecution (sections 395 to 402 German Criminal Procedure Code) a so-called private
accessory prosecutor – being a private individual enjoying his own procedural rights – joins the proceedingscommenced by the public prosecution office. Private accessory prosecution allows persons who areparticularly aggrieved by a criminal offence to participate in the proceedings – for their own satisfaction andalso for the purpose of safeguarding their own rights. To make this quite clear, I would like to stress once
again that a private accessory prosecutor has an autonomous right of participation, independently of the publicprosecution office. Hence he is not a co-prosecutor assigned to the public prosecutor. The private accessory
prosecutor can exercise his rights completely independently. But the prior requirement is always that publiccharges must have been preferred by the public prosecution office since the private accessory prosecutor
cannot prefer such charges independently.
1. Who can Join the Proceedings as a Private Accessory Prosecutor?
The question whether a person can be a private accessory prosecutor or not is determined, as a rule, by
the criminal offence committed. In particular, it is the victims of a criminal offence
against sexual self-determination (for example, rape, sexual abuse, trafficking in human beings for the
purpose of prostitution),against personal honour (for example insult, defamation),against physical integrity (for example bodily harm),
against personal freedom (for example hostage-taking or serious cases of deprivation of liberty),
or of an attempted murder or manslaughterthat are entitled to bring a private accessory prosecution.
In cases of completed murder or manslaughter close relatives also have the right to join the proceedings
as private accessory prosecutors.
A private accessory prosecution can be conducted by the person entitled to join the proceedings in thisfunction, although he also has the right to be represented by an attorney.
2. What Rights does a Private Accessory Prosecutor have?
As already stated, the private accessory prosecutor is equipped with special rights as a participant in theproceedings:
Right of presence (section 397 paragraph 1, first sentence, German Criminal Procedure Code)Unlike the other witnesses, the private accessory prosecutor has the right to be present during the entire
court hearing – from the beginning to the end. For this reason, private accessory prosecutors are also
summoned automatically to attend on the dates set down for the main hearing.
Right to make applications
The private accessory prosecutor is able to make his own applications for evidence to be taken at the main
hearing. He also has the right to make general applications, for instance an application for exclusion of the61

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general public and/or for removal of the defendant during the examination of the private accessory prosecutor
himself.
Right to pose questions
The private accessory prosecutor can address his own questions during the main hearing to the defendant,
the witnesses and the experts. When he is being examined himself, he is able to get the court to reject
questions posed by the public prosecution office and by the defence.
The private accessory prosecutor also has the right to challenge a judge or an expert, or to object toorders made by the presiding judge.
Right to submit declarations and to make his own a closing speech.
One of the core rights of the private accessory prosecutor is the possibility of making declarations during
the hearing and of making his own closing speech at the end of the main hearing. In this closing speech thevictim is able to present his own view of the case and to make submissions on the points that are importantfor him.
The private accessory prosecutor also gets a copy of the judgment and of the reasons given therefor.
Private accessory prosecutor’s right to seek appellate remedies:
If the private accessory prosecutor does not agree with a judgment he can file an appellate remedy. The
private accessory prosecutor’s right is, however, limited in comparison with that of the convicted person andof the public prosecution office. Hence the filing of an appellate remedy is not possible with the objective ofgetting a different legal consequence or a conviction for a criminal offence that does not entitle the person
concerned to join the proceedings a private accessory prosecutor (section 400 German Criminal ProcedureCode). What does this mean in precise terms? Ladies and Gentlemen, I would now like to give you a few
examples to illustrate this point:
Example 1:
The defendant A seriously injured the victim B by stabbing him with a knife and was convicted of causing
serious bodily harm and sentenced to a term of 2 years’ imprisonment, suspended on probation. B joined theproceedings as a private accessory prosecutor and he does not agree with the level of the sentence imposed.
His aim is to have another legal consequence imposed, in other words a higher sentence. He is barred fromachieving this objective because of his limited right of application under section 400 German Criminal
Procedure Code. Here he will have no chance of taking action against the judgment.
Example 2:
The defendant A is accused of having seriously injured the victim B by stabbing him with a knife. The
defendant A denies the charge contained in the relevant count in the indictment, and, since the court was notconvinced of his guilt, it acquitted the defendant A. The victim B, who joined the criminal proceedings as a
private accessory prosecutor, continues, however, to be convinced that A was the offender. In this case B canfile an appellate remedy.
Example 3:
The defendant A is accused of having seriously injured the victim B by stabbing him with a knife. The
court convicts the defendant A of causing serious bodily harm and sentences him to a term of 3 years’
imprisonment. The victim B, who joined the criminal proceedings as a private accessory prosecutor, is,however, convinced that A not only wanted to injure him but rather wanted to kill him out of greed, so that
this is a case of attempted murder. Here the victim B is not opposed to the legal consequence but to theverdict of guilty of causing serious bodily harm. For this reason, he will have the right to contest theconviction.
Example 4:
The defendant A is accused of having seriously injured the victim B on 12 January 2002 by stabbing him
with a knife and then, at a later stage on 20 January 2002, of having entered the victim’s apartment and of62

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having stolen valuable items there. The defendant A is convicted of causing serious bodily harm but is,however, acquitted of the theft because it could not be proved that he had committed the offence. The victim
B, who joined the proceedings as a private accessory prosecutor, is convinced that A also committed the theftand he wants to file an appellate remedy in this respect. It will not, however, be possible for him to do this.
Theft is not an offence that entitles a person to join the proceedings as a private accessory prosecutor. Here,too, section 400 German Criminal Procedure Code limits the right to file an appellate remedy.
3. Does a Private Accessory Prosecutor get an Attorney?
Private accessory prosecutors are given an important position under procedural law. Important
procedural rights are conferred on them. Only very rarely, however, are private accessory prosecutors
trained lawyers, and for that reason they want to avail themselves of the services of an attorney. This desire
is entirely understandable. But having an attorney costs money. On the other hand, victims who do not havesufficient financial means must also have the chance to get legal representation by an attorney. Germancriminal procedure law makes the following provision for private accessory prosecution:•

Legal aid (section 397a paragraph 2 German Criminal Procedure Code)Victims who are entitled to bring a private accessory prosecution can make an application to be granted
legal aid. Legal aid will be granted if:-

the factual and legal situation is complex,-

the victim cannot sufficiently safeguard his or her own interests, or if this cannot reasonably be
expected of him, and-the victim cannot, in the light of his personal and financial circumstances, pay the costs, or can only
do so in part, or only in instalments.

Legal aid means that the state pays an advance in respect of the costs for the attorney and for theproceedings. But if the victim cannot – because of his financial situation – pay the attorney, he will not haveto pay back the costs arising by virtue of his representation by the attorney as long as there is no change in
his circumstances. If the defendant is convicted during the criminal proceeding, the court will then demand
payment of these costs from the convicted person.
•

Attorney for the victim at state expense (section 397a paragraph 1 German Criminal Procedure
Code)

Under certain conditions, the victim can, upon application being made, be assigned an attorney at state
expense. Assignment of an attorney for the victim is independent of the victim’s income, and the costs never
have to be repaid by the victim. Only in cases of grave criminal offences will it be possible to assign anattorney for the victim. This will, for instance, be the case where sexual offences have been committed orwhere there has been an attempt to commit a homicide offence.
In this connection, it has repeatedly been stressed that also the close relatives of a victim killed through acriminal offence are particularly worthy of protection, and that it is justified here, too, for an attorney to be
assigned to the victim. In the course of the reform of the German Criminal Procedure Code, it is precisely
this problem that is to be addressed and the victim’s surviving relatives are in future to be assigned an
attorney.
Legal aid is granted, or an attorney for the victim is assigned not only to private accessory prosecutors
who actually join the proceedings. Even before joinder as a private accessory prosecutor, it may be important,already during the investigation, for persons entitled to join the criminal proceedings to take advice from anattorney and then to decide whether they actually also want to join the proceedings. For this reason, on theconditions stated, those entitled to join the proceedings will also get legal aid or an attorney for the victim atstate expense irrespective of whether they join the proceedings or not.

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III. PART 2: THE VICTIM’S POSITION AS A WITNESSThe victims of a criminal offence are already under great mental stress because of what happened. During
the criminal proceedings they are usually, however, urgently needed as witnesses and, in many cases, they
have to go over what they experienced again and again. Even if this is a difficult time for the victim, a statebased on the Rule of Law cannot, and must not, dispense with the testimony of witnesses. In a large numberof cases it is the testimony of victims that is one of the most important sources of evidence for procuring theoffender’s conviction.
On the other hand, it is important that victim stress and anxiety be taken seriously in the context ofcriminal proceedings and for an effort to be made to keep the stress experienced down to a level that is as low
as possible.
A victim witness cannot avoid fulfilling his duty to testify. If he is not entitled to refuse to testify he will
have to describe what happened to the public prosecution office and to the court again.
In recent years in Germany, and particularly following the Victim Protection Act of 1998, new provisions
have been created to protect victims, taking account of the victim’s concerns especially in this difficult
situation.
A. Persons Rendering Assistance
It is often the case that victims will feel the need to take a person whom they trust to their examination.
This gives them greater confidence and makes them feel less left on their own. Assistance from a person
whom the victim trusts can reduce the victim’s nervousness and anxiety during his or her examination.
In section 406f paragraph 3 German Criminal Procedure Code it is therefore provided that the victim of acriminal offence may, if so desired, take a person whom he trusts to his or her examination. This applies toall examinations, irrespective of whether they are conducted by the police, the public prosecution office or the
court.
The decision on whether to permit the person the victim trusts to be present at the examination is madeby the person conducting the examination. The presence of the person the victim trusts may be excluded if it
is feared that the purpose of the investigation will be jeopardised as a result thereof. The decision is notcontestable. It was decided to dispense with giving the victim an unlimited entitlement to the presence of theperson he trusts. Cases may indeed occur where the presence of such a person can have a detrimental effecton the examination. Such cases may, for instance, arise where a child or a juvenile has been abused by aparent and the former brings this parent to the examination. In such a case it must be possible for the parent
concerned to be refused permission to be present at the examination.
The victim may also bring an attorney to examinations conducted by the public prosecution office or the
court. The attorney may not only be an emotional support for the victim. He can also exercise certain
interests on the victim’s behalf. So, for instance, he has the right to object to questions. In addition to this,he can make an application during the court hearing for the general public to be excluded.
Under certain circumstances a attorney can, pursuant to section 68b German Criminal Procedure Code,be assigned at state expense to assist the witness for the duration of his examination by the publicprosecution office or the court. Such assignment is geared to protect the witness during his examination andis therefore also limited to this examination. It presupposes that the witness is unable to exercise his rights
himself and that interests of his that are worthy of protection cannot be taken into account in another way.
When can cases like this occur?
To illustrate this, I would like to give you an example:
A young woman is repeatedly beaten and abused by her husband. She is frightened because of what
happened and under great mental stress. It is feared that she will not be able to exercise her rights, forinstance, her right to refuse to testify or her right to object to questions, or it is feared that because of her
mental situation she will not, for example, be able to give expression to her wish that the general public be
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excluded during the court hearing. Here it may be sensible to assign an attorney to the young woman only inrespect of the examination she has to undergo; the attorney can then support and advise her regarding her
rights.
B. Personal Data on Examination
Many victims are afraid of giving their personal data at their examination. Especially victims of serious
offences involving violence often fear that the offender might find out their address and take revenge.
In principle, at the examination the victim is, however, obliged as a witness to state his first name andfamily name, age, occupation and place of residence (section 68 paragraph 1 German Criminal ProcedureCode). The provision has the object of avoiding cases of mistaken identity, and it is also designed to create areliable basis for evaluating credibility and enabling the participants to collect information.
There are, however, exceptions to this principle (section 68 paragraph 2 and 3 German Criminal
Procedure Code). Where there is reason to fear that the victim or, for example, a relative of the victim might
be endangered by the victim stating his or her place of residence, the latter can be kept secret. The
legislation makes provision for the option of stating an address where the victim can reliably be reached thatis different from the victim’s home address. This can, for instance, be a victim’s office address or the addressof the attorney`s office.
In extremely exceptional cases where the witness’s life or, for example, the life of his relatives isendangered by disclosure of the witness’s personal data, he may also be permitted not to give personalparticulars.
C. Use of Video Technology
With the Victim Protection Act of 1998 the use of video technology was regulated for the first time incriminal proceedings. Both the recording of a witness examination on an audio-visual medium and the optionof examining a witness by video link were made possible. The object of this legislation was to spare thewitness repeated examination or being confronted by the offender.
1. Recording the Examination on an Audio-Visual Medium
Section 58a German Criminal Procedure Code regulates the recording of witness examinations on an
audio-visual medium and their use in criminal proceedings. On principle, any examination of a witness can berecorded at any stage of the proceedings. It is the person conducting the examination who decides on this in
the exercise of his duty-bound discretion.
The examination shall, on principle, be recorded where- a victim witness is under 16 years of age,- or there is a fear that the witness cannot be examined during the main hearing and the recording isrequired in order to establish the truth.
Only under certain conditions can such recording, however, be shown at the main court hearing instead of
direct examination of the witness concerned (section 255a German Criminal Procedure Code).
In Germany one of the most important procedural principles is the principle that both the hearing itself
and the taking of evidence must take place before the adjudicating court, and that the proceedings have to be
conducted orally. This means that in principle witnesses have to be examined personally before the court.
Only in exceptional cases can the examination of a witness be dispensed with and the written record of an
earlier examination be read out or the audio-visual recording made of such examination be shown. This will,
for instance, be the case where the witness has died in the meantime or is ill for a long or indefinite period oftime. Also, when all participants (public prosecutor, defence counsel and defendant) agree, such reading out
or showing is permitted.
In relation to victims who are in need of special protection it is possible for the video recording to beshown at the main hearing under less strict conditions. In cases of sexual criminal offences or of homicide65

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attempts on victims under 16 years of age the video recording made of their judicial examination can also be
shown if the defendant and defence counsel had the chance of taking part at this examination.
2. Examination by Video Link
Furthermore, ever since the Witness Protection Act it has been possible to conduct a so-calledexamination by video link:
In the investigation proceedings the judge can, pursuant to section 168e German Criminal Procedure
Code, conduct the examination of a witness separately from the other participants in the proceedings if there
is an imminent risk to the well-being of the witness, which cannot be averted in some other way. There is
supposed to be simultaneous audio-visual transmission of the examination to the other participants. The
judge remains in contact by telephone or radio so that the defence in particular can intervene in theexamination by interposing questions.
As regards the main proceedings, it is section 247a German Criminal Procedure Code that regulates thepossibility of examination by video link. In the cases covered here the witness remains in another place
during the examination. The court, including the presiding judge and the other participants in theproceedings, remain in the courtroom. They are connected to the witness through a video link. The
witness’s testimony is transmitted simultaneously to the courtroom. Conducting an examination by video
link is, inter alia, permissible where there is an imminent risk – that cannot be averted in some other way - ofserious detriment to the well-being of the witness in the event of his being examined in front of those present
at the main hearing.
That there should be two different models for the investigation proceedings and for the main hearing wasa matter of deliberate choice. This is due to the different stages a case goes through. In relation to the main
hearing, having a “split” in the main hearing was dispensed with. Here the court will remain together withthe other participants in the proceedings in the courtroom, and the witness is either alone or together with aperson rendering assistance in another room. Any other provision would have raised complex questions
under criminal procedure law. The principle applying to the main hearing, requiring the uninterrupted
presence in one place of those persons who are charged with reaching judgment in the case concerned.
The question whether the judge is to remain with the other participants in the proceedings or in the room
where the witness is was indeed the subject of heavy controversy during the discussions on the Witness
Protection Act in Germany. Both alternatives certainly have their merits. In the end, however, Germany
also followed Great Britain. There the model where the presiding judge does not leave the courtroom andexamines the witness by means of an audio-visual transmission has proved its worth over quite a long periodof time.
Ladies and Gentlemen, you will certainly be wondering how far video technology has now been
implemented in the German courts. I would be happy to be able to give you detailed information but
unfortunately this is not possible. At present, there is no statistical material available to me on how often andhow successfully video technology has been used in criminal proceedings. One should not forget that thelegislation has only been in place for a few years and that courts and public prosecution offices first needed a
start-up phase in order to get the necessary technical equipment for their agencies. There has often been
criticism to the effect that the application of video technology is still minimal. This criticism is definitely
connected with difficulties in adjustment in this area and also with the fact that judges also have to get used tothis new technology.
One should not, however, underestimate the effect that a recorded examination of a victim can have on
the offender. I believe that particularly with regard to serious offences involving violence and sexual offences,
showing the victim’s testimony as a witness can have a positive effect on the offender. In this way theoffender is already confronted with the victim. This will not be the case with written testimony. Suchconfrontation may already induce the offender to make a full confession at an early stage and spare the victim
further appearance before the court. This has also been confirmed by those involved in the practicalapplication of the law.

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D. Exclusion of the General Public
During the main hearing in court it is possible for the general public to be excluded (sections 171b and 172of the Courts Constitution Act). Seeing that the presence of the general public in the courtroom is an
important procedural principle, their exclusion can be effected only in closely defined exceptional cases. The
statutory provision made for these exceptions is conclusive. This may apply when particularly burdensome
details of the victim’s personal life have to be brought up or where a victim’s health, sexual sphere or
intimate details of his or her family life are concerned. Exclusion is also possible when there is a threat to awitness’s life, limb or personal liberty. It is the court that makes the decision on whether to exclude thegeneral public.
E. Testimony in the Defendant’s Absence
The defendant has a right to a fair trial, guaranteed under the Rule of Law. This also means that he will bepresent in the courtroom during the entire main hearing and that he will be able to follow the proceedings.
However, where there is the risk of a particularly grave threat to, or strain on, a witness, it will be possible toconduct his examination – by way of exception – in the defendant’s absence (section 247 German Criminal
Procedure Code). Here it will not be sufficient just for the witness not to want to be confronted by the
defendant. The court is required to strike a fair balance between the witness’s interests and the defendant’s
rights. In doing so, the court must always bear in mind that the defendant’s right to be present is one of his
most important procedural rights. But a witness’s interests will take precedence in any case where there is
the imminent risk of substantial detriment to his health, for instance because of too much emotional strain.
Where the witness is under 16 years of age, it will suffice if there is the risk of considerable detriment to his
or her well-being.
F. Separate Waiting Rooms in Court
Victim protection associations have said over and over again that the victim of a grave criminal offencecannot reasonably be expected to face the offender. There were often situations where the victim had to wait
for his examination as a witness in the corridor outside the courtroom, when the offender suddenly appeared.
This may lead to the situation where victims who are to appear as witnesses will become anxious even before
their examination has begun, where they feel uneasy and are worried about having to testify as witnesses.
For this reason, a large number of courts have already arranged to have special waiting rooms, for instance
Leipzig Regional Court has a nice room specially for children who have been the victims of an offence
involving violence. There are toys and books for children there so as to enable small children to relax before
their examination and to help them overcome their fear.
Provision is already made pursuant to No. 135 of the Guidelines for Criminal Proceedings and Regulatory
Fining Proceedings to the effect that such special waiting rooms should be used. But it is not only the use, it
is also the creation of such rooms which is important. For this reason, as part of the reform of the Code of
Criminal Procedure, there will be a statutory stipulation for provision of such rooms.
IV.

CONCLUDING REMARKS

I have now reached the end of my paper, and I hope I have been able to give you a broad view of thesituation of victims under German criminal procedure law. As you will have seen, German criminal
procedural law is still not perfect but we are also constantly working on further improvements in the victim’s
situation.

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VICTIM PROTECTION IN CRIMINAL PROCEEDINGSREPARATION FOR DAMAGES
Sylvia Frey＊
I. INTRODUCTION
In my first paper I described the victim’s legal position in German criminal proceedings, explaining how
victims of crime are involved in criminal proceedings by being given information and a participatory role andhow it is ensured that the level of stress experienced is kept to a minimum.
But this is just one side of things. In many cases, victims of crime are not only confronted with having todeal with what they have been through and endure criminal proceedings. They have often also suffered
physical injury or financial loss. If for example the victim of a murder is a man who is husband and father, thestability of the family can be affected in every aspect.
It is therefore not only important for the victims or the surviving relatives that the perpetrator is brought
to justice. In some cases, the issue of reparation is extremely important, if not sometimes a question ofmaintaining one’s subsistence.
In this paper I would therefore like to outline the possibilities for reparation to be made for damage caused.
I have divided up my paper into two parts.
In the first part I would like to illustrate how victims can obtain reparation from offenders in criminal
proceedings, whereby I will not be looking at the possibility of obtaining compensation from the perpetrator
in civil proceedings, which does, of course also exist.
In the second part of my paper I would like to give you an outline of the possibilities for obtaining
compensation provided by the State. It is often the case that the perpetrator does not have the financial
means to pay compensation. Yet a society which embraces values of social justice cannot leave victims ofviolent crime defenceless when their health, capacity to work and vitality has been impaired or evendestroyed. Financial support from the State is important in such cases.
II. PART 1: REPARATION BY THE OFFENDER IN CRIMINAL PROCEEDINGS
A. Termination of Proceedings Subject to the Condition of Reparation Being Made for Damage
Both in investigation proceedings and in court proceedings there is in principle the possibility ofterminating proceedings subject to the condition of reparation being made (section 153a subsection 1, no 1,
German Criminal Procedure Code).
Reparation can be made in the form of payment to compensate for the loss incurred, but can also take theform of payment of damages for pain and suffering.
The amount of pecuniary or non-pecuniary damages to be paid is set by the court or the publicprosecution office after a thorough assessment of the case, whereby both the extent of the loss and thefinancial circumstances of the defendant play a role.
If the defendant is not able to make payment immediately or can only pay in instalments, it is possible fordeferment of payment or payment by instalments to be granted. However, it is important to note that it is thecourt or public prosecution office, and not the victim, who can decide to take this approach. Thus, the＊Executive Assistant,
Section on Criminal Procedure (Court Proceedings),
Federal Ministry of Justice,
Germany

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defendant cannot exert pressure on the victim and demand that he agree to payment by instalments or evenwaive payment completely.
If the defendant makes payment before expiry of the time-period laid down by the court or publicprosecution office, the proceedings, which had only been provisionally suspended until that point, are finallyterminated. If, however, the defendant refuses to make reparation, proceedings are resumed.
If the proceedings were provisionally suspended by the public prosecution office, it will now prefercharges. If the proceedings were provisionally suspended by the court, the main hearing is continued and thedefendant must reckon on being sentenced.
Termination of proceedings on condition that reparation is made only comes into consideration for petty
crime and crime of a medium degree of seriousness. If, for example, the person concerned is accused ofhaving raped the victim, termination of proceedings on condition that reparation is made is not possible under
any circumstances.
Termination of proceedings on condition that compensation payments are made does not constitute a
conviction. Nonetheless, it is possible for the victim’s interests to be sufficiently taken account of with thisapproach. It is important in this context to note that the victim still has the option to assert further claims forcompensation at any time in civil proceedings. Whilst it is true that termination of criminal proceedings inreturn for payment of compensation to the victim does mean that criminal proceedings are concluded, this in
no way prevents the possibility of further civil proceedings.
B. Restitution as a Condition of Probation
If a defendant is sentenced to prison for less than two years his sentence can be suspended on probation.
The court can link the suspension on probation to certain conditions. One of these conditions can be that thedamage caused by the offence be made good (section 56b subsection 2, no. 1, German Criminal ProcedureCode). The court then examines whether the convicted person has complied with this obligation.
If the payment of compensation or damages for pain and suffering is ordered so as to make good thedamage caused by the offence, any deferment of payment or payment in instalments can only be granted by
the court. Thus the authority to decide on this claim to damages lies with the court and not with the victim.
Thus the victim cannot be placed under pressure by the convicted person in this situation, either.
If the convicted person fails to comply with his obligation to pay compensation, the court can revoke
probation, with the consequence that he must then serve the prison sentence.
C. Victim-Offender Mediation
German law of criminal procedure allows the possibility of mediation between victim and perpetrator,
which is referred to in Germany as “victim-offender mediation”. Victim-offender mediation can be conductedby either the public prosecution office or the court. But victim-offender mediation also offers victims andperpetrators the opportunity to attain a satisfactory conflict resolution outside the courtroom, with the
involvement of an impartial third party.
For the criminal justice system, victim-offender mediation is a new approach to dealing with crime, since
the parties themselves are responsible for conducting the victim-offender mediation. In the usual case, theconduct of criminal proceedings is an official procedure over which the parties do not, as a rule, have any
scope for control.
1. When can Victim-Offender Mediation take Place?
Firstly it must be borne in mind as the most important point that extra-judicial dispute resolution does notcome into consideration in serious cases: it goes without saying that victim-offender mediation would nottake place in the case of offences like rape. Victim-offender mediation serves the resolution of conflict inpetty and less-serious cases. What is important is that both parties are willing to participate in mediation. It
is not possible for victim-offender mediation to take place against the express wishes of the victim and isprohibited by law (section 155a, third sentence, German Criminal Procedure Code). Nor would victimoffender mediation make sense in a case where the defendant denies the charges brought against him andmaintains his innocence.
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2. Who Carries out Victim-Offender Mediation?
It is possible for the court or the public prosecution office themselves to pursue conflict mediation
between the perpetrator and the victim. However, they generally do not have time to do so, which is why thelaw also makes provision for victim-offender mediation to be conducted by an extra-judicial agency(section 155b German Criminal Procedure Code).
In Germany there is no one single agency which is responsible for carrying out victim-offender mediation.
Rather, it is up to the individual federal states (Länder) to decide who to commission with victim-offender
mediation. This is why there is a large number of different organisations in Germany which deal with victimoffender mediation. It is also not necessary for the organisation to be a State agency. It is in fact the casethat the majority of cases are dealt with by private organisations, which are partly funded by the State. Thiscan take place in the form of payments from one of the justice ministries, for example, or through theassignment of fines by the public prosecution office or the court.
3. What Procedure does Victim-Offender Mediation Follow and what are the Implications of Victim-OffenderMediation for the Criminal Proceedings?
To give you an idea of how the victim-offender mediation procedure works in practice, as well as of theconsequences this can have for the defendant, I would like to give you a typical example.
Offender A and Victim B both had a love affair with the same woman. One evening, A was sitting in the
pub when B suddenly turned up accompanied by this lady. A realised that his lady friend was apparently
being unfaithful to him and became so enraged at this that he hit Victim B over the head with a beer bottle.
B suffered concussion and sustained a laceration.
A was overcome with remorse shortly after the act and already expressed his regret at his actions when
he was initially interviewed by the police. The public prosecution office, to whom the case was passed on,
decided that extra-judicial conflict mediation should be attempted in this case. The case was then passed toorganisation O, which conducts victim-offender mediation.
The conflict advisor employed by organisation O firstly met A and B separately to establish their
willingness to enter into the process of conflict settlement. Both parties were asked about how they viewed
the issue of payment of damages for pain and suffering. Once both A and B had stated their willingness toenter into victim-offender mediation, the conflict advisor invited them both to take part in a meeting together.
This gave A the opportunity to explain his reasons for his actions to B and to apologise for his behaviour. The
two of them agreed on 2500 euro damages for pain and suffering.
Once the damages had been paid, the conflict advisor produced a report on the conflict settlement andsubmitted it to the public prosecution office, who, in turn, terminated the proceedings with the court’sconsent.
As you can see, the criminal proceedings were not concluded by the conflict advisor. This is an important
point to note. Whilst it is possible for dispute settlement to take place independently of criminal proceedings,
the decision on the final termination of proceedings still remains in the hands of the public prosecution officeor the court. Nor is the public prosecution office obliged to terminate proceedings following mediation. It canstill prefer charges if it has grounds to do so, for example if prior offences have now come to light. Reparationby the offender, expression of apology and his behaviour after the offence are, however, then taken into
account as mitigating circumstances by the court when sentencing.
A further important point to be noted is that the victim still has the option of pursuing further claims, forexample a greater amount of non-pecuniary damages, in a civil action. Victim-offender mediation can end
criminal proceedings, but not civil proceedings.
4. What Happens if the Offender does not have any Money?
Usually, one of the focal points of the extra-judicial conflict resolution between perpetrator and victim will
be reparation for damage. However, it is often the case that the offender is not able to make reparation due tohis financial circumstances.

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That is why a so-called “victim fund” is available at many conflict mediation centres. The offender can be
granted an interest-free loan so that immediate reparation can be made. It is also possible for the offender tobe paid from this fund for performing community service and for him to then use this money to pay reparation.
5. Benefits of Victim-Offender Mediation
For the victim
Victim-offender mediation can represent simplified and expedited proceedings for imposition of a penalty
which spares the victim a long wait for the main hearing with its uncertain outcome. It creates the possibilityof having material and financial claims met quickly and without a great deal of red tape, within a realistic
framework. One must also not underestimate the importance for the victim of having the opportunity to
explain his situation and his feelings of fear or anger to the offender. The expression of apology by theperpetrator and the acknowledgement of his guilt before the victim can contribute significantly to reestablishing peaceful relations between the parties.
For the offender
The offender has the opportunity to face up to the consequences of what he has done and to contribute as
far as possible to putting things right. In the course of mediation he can take responsibility for his actions.
Having to deal with the victim can most certainly have an influence on his future behaviour. In addition,
there is the possibility of reaching termination of the proceedings and avoiding conviction as a result ofvictim-offender mediation.
6. Significance of Victim-Offender Mediation in Practice
The constant growth in the number of cases in which victim-offender mediation is used demonstrates its
increasing acceptance. It is clear from the table in the annex that the use of victim-offender mediation has
increased in almost all the federal states. For example, there were 707 cases of victim-offender mediation in
North-Rhine/Westphalia in 1997, against as many as 2485 in 2000, which constitutes an increase of greaterthan three-fold. Victim-offender mediation is an excellent means of re-establishing peaceful relations under
the law between perpetrator and victim, promoting reparation of the damage caused and, at the same time,
reducing the burden on the public prosecution offices and courts. Continued positive development can thus
be anticipated.
D. Ancillary (Adhesion) Proceedings
During criminal proceedings the hearing deals with the offence and the perpetrator’s guilt. There isusually no decision on the victim’s entitlement to pecuniary damages or damages for pain and suffering. It is
up to the victim to assert such claims within the framework of civil proceedings. However, the possibility
exists in Germany of asserting a pecuniary claim which has arisen as a result of the offence during thecriminal proceedings, too. By means of so-called ancillary (adhesion) proceedings, a victim or his heirs can,upon application, assert claims for compensation, for example.
In order to better elucidate the benefits of ancillary proceedings I would like firstly to explain a few basic
points in respect of German criminal procedure.
Unlike civil proceedings, which are governed by the parties’ autonomous control to determine thesubject-matter of proceedings, criminal proceedings are not adversarial. The objective of criminal
proceedings is to establish the substantive truth in respect of the offence and to impose punishment on theguilty offender. As a result, the German criminal justice system differs fundamentally to that under AngloSaxon law, for example, which is traditionally structured as an adversarial system. This means that the publicprosecution office on the one hand and the defendant and his counsel on the other have control over theproceedings, and they can exercise that control over the subject-matter of the proceedings by withdrawing
the charges. The judge is merely a sort of neutral referee who gives a judgment on the basis of the evidence
for the prosecution and for the defence collected by the parties.
In contrast, under German procedural law it is the public prosecution office which is initially obliged to
conduct investigations and prefer charges, having examined all incriminating and exonerating factors. Once
charges have been preferred, it is the judge who has the authority to direct proceedings. He must be familiar
with the information contained in the files, he conducts questioning and takes all evidence which might
incriminate or exonerate the defendant on his own responsibility. This obligation to clarify the facts of thecase, which is enshrined in the German Criminal Procedure Code, can require of the court that it hear
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exonerating evidence even if this is against the wishes of the defendant. Likewise, the court can choose tohear incriminating evidence even if the public prosecution office shows no interest in it. This does mean,
however, that the defendant and the public prosecution office cannot dispense with the continuation of takingof evidence even if both parties were to agree on this. The court is under an obligation to clarify the facts ofthe case.
If ancillary proceedings are conducted, the victim shares this obligation to clarify the matter. He does nothave to take evidence himself, but can leave it to the public prosecution office and the court to establish thedefendant’s guilt.
1. Circumstances in which it is Possible for Ancillary Proceedings to take PlaceFirstly, the victim must file a written application, whereby an oral application is sufficient if this is madewhen the main hearing is being conducted. The victim must substantiate his application, which means that
he must describe what he wants to obtain from the defendant and give his reasons. If the victim wishes tosue for damages for pain and suffering, however, he does not have to stipulate a specific amount. It is be left
up to the discretion of the court to determine the amount of damages to be paid.
The following pecuniary claims, in particular, can be asserted by the victim in ancillary proceedings:-

Claims for damages for pecuniary loss and damages for pain and suffering,-claims for surrender and/or claims for restitution of the unjustified enrichment (for example, for returnof a stolen item).

2. Possibility of being Granted Legal Aid
If the victim wishes to call on the services of a lawyer in asserting his claims, and if he does not have themeans to pay for these services, he can apply for legal aid. Legal aid is granted where- the victim is unable to pay the costs of litigation or can only pay in instalments,- there is the prospect that the outcome of the case will be successful.
3. Advantages of Ancillary Proceedings
There are many advantages of ancillary proceedings, especially for victims of crime:- Ancillary proceedings provide the opportunity for the consequences of the offence under both criminaland civil procedure to be dealt with in one single set of proceedings. If the victim is granted compensation in
ancillary proceedings he does not have to institute civil proceedings in addition to the criminal proceedings inorder to assert his claims.
- The victim has a right to be present and a right to be heard. This means that the victim is entitled to
be present during the entire proceedings. He would otherwise not have such a right to be present if he wererequired as a witness for the proceedings and did not have the status of private accessory prosecutor. In sucha case, the victim would have to wait outside the courtroom until he was called for questioning and would
only subsequently have the opportunity of being present at a hearing open to the public.
- In addition, the victim has the option of filing applications for the taking of evidence, objecting to orders
given by the presiding judge or asking questions. Under section 257 German Criminal Procedure Code thevictim also has the right to make statements after the defendant has been questioned and after each item of
evidence is taken.
- The fact that the principle of official investigation applies in criminal proceedings is particularly
advantageous to the aggrieved person. According to this principle, in order to establish the truth the court
must, of its own motion, extend the hearing of evidence to cover all facts and evidence which are ofsignificance for the decision. Unlike in civil proceedings, therefore, the aggrieved person does not have tofurnish evidence but can leave it to the court and the public prosecution office to clarify the facts of the case.

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VISITING EXPERTS’ PAPERS- Lastly, the aggrieved person still has the possibility of asserting claims before the civil courts which heunsuccessfully asserted in the criminal proceedings. In principle, therefore, the aggrieved person can only
gain by pursuing ancillary proceedings, and has nothing to lose.
4. Ancillary Proceedings in Practice
In spite of the advantages in terms of saving time and resources that arise in dealing with the civil law
dispute and the criminal case in one and the same set of proceedings, ancillary proceedings lead a somewhat
shadowy existence. In 2001, 402,993 convictions were imposed in the German local courts (Amtsgerichte),
but in only 3,510 of these cases were ancillary proceedings conducted. In respect of criminal proceedings
pursued in the first instance at regional courts (Landgerichte), ancillary proceedings were conducted in only
164 cases of 12,887 convictions.
What are the reasons for this?
One significant point is that the court is not automatically compelled, as a result of the application being
made, to conduct ancillary proceedings. Thus the court can dispense with issuing a decision in ancillary
proceedings if this would prolong the criminal proceedings. If the court decides to follow this course of action,
the applicant does not have any means of recourse against the court’s decision. The reasons why there is a
cautious attitude in practice in respect of ancillary proceedings are widely known.
- Ancillary proceedings are viewed as something that is alien to criminal proceedings. Criminal
proceedings serve the purpose of assessing the defendant’s guilt. Assertion of claims for damages should beleft up to the civil courts.
- One should not underestimate the fact that decisions made in ancillary proceedings can serve as anadditional source of error which hold the danger of the judgment being set aside in appellate proceedings.
- However, the main point is that ancillary proceedings can place a further burden on the court. The
increased demands that this can place on the court in terms of time and resources are said to be considerable.
It is the delays in the proceedings caused by the hearing of additional items of evidence that are feared by the
court and the public prosecution office. From time to time, criminal judges also find it excessively demanding
having to make decisions on civil law matters that are often complex.
5. Possible Solutions
In Germany, efforts are currently being made to reform the Code of Criminal Procedure. One importantfocus of these efforts is victim protection and, in this connection, the strengthening of ancillary proceedings.
The following approaches for solutions are currently the subject of intensive discussion:- In future, it should not be so easy for the court to dispense with giving a decision in ancillary
proceedings.
- Consideration is also being given to establishing the possibility of contesting a court’s decision todispense with a decision in ancillary proceedings.
- Victims should be better informed about the possibility of pursuing ancillary proceedings.
- The scope of possibility in ancillary proceedings is to be broadened. In future, the parties should also
be able to reach a settlement, for example on the payment of damages for pain and suffering.
- In addition, there is discussion about the extent to which the criminal judgment can attain the effect of
being binding on proceedings before the civil court. It is currently the case that all evidence must be heard
again in civil proceedings and it is not possible for the outcome of the taking of evidence in the criminal
proceedings to be relied upon.
The topic of ancillary proceedings will be the subject of much discussion in Germany in the near future. It
remains to be seen which concrete regulations ultimately become law. However, the basic trend towards
strengthening ancillary proceedings is clear.

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III. PART 2: VICTIM COMPENSATION BY THE STATE
A. The Victims Compensation Act
If the State does not manage to completely prevent violent acts in spite of all its efforts in crime
prevention, it must, in its role of protector vis-à-vis its citizens, of course assume responsibility for thevictims of these crimes.
This was the governing principle behind the Act on Compensation for Victims of Violent Acts, which
entered into force on 16 May 1976.
A society which embraces values of social justice cannot take an indifferent attitude to victims of violent
crime. It is not enough to refer to the civil law provisions on compensation. Whilst it is true that the clear-up
rate in respect of violent crime is very high, offenders are very often not in a position financially to makereparation for the damage.
It is the object of the Victims Compensation Act to compensate for the consequences in terms of healthand the resulting financial consequences, and not leave the victims of violent crimes completely on their own.
1. When can a Victim Benefit under the Victims Compensation Act?
Anyone who has suffered a detriment to their health as a result of an unlawful and violent act committedwith intent or of defending themselves from such an act is entitled to benefit under the Act. Family membersof someone who has died as a result of such an attack also have an entitlement.
The injury suffered may not be solely of a pecuniary nature. Rather, it is the aim of the Victims
Compensation Act to ease the burden of the additional expenses for the aggrieved person which are incurred
as a result of the consequences of the damage caused to their health.
The offence must have been committed within the territory of the Federal Republic of Germany. If theoffence was committed on board a German vessel or aeroplane, there is also an entitlement under the Victims
Compensation Act. However, no compensation is granted for acts committed abroad.
The Victims Compensation Act is of course applicable to Germans, but citizens of foreign countries canalso be eligible. Thus, provision under the Victims Compensation Act also applies to all citizens of theEuropean Union. In addition, foreign citizens are also covered if they come from a country for whose
nationals EU legislation or international agreements provide for equal treatment with German citizens.
The Victims Compensation Act applies to all other foreign citizens on the basis of reciprocity. Thismeans that if a German were the victim of a violent offence in that person’s country of origin, he would be
granted compensation equivalent to that available under German law.
Since 1990 foreign citizens lawfully resident in Germany for more than six months have also been coveredby the Victims Compensation Act and entitled to benefit in accordance with the length of residence. If aperson has been lawfully resident in Germany for at least three years he is entitled to benefit on an equal
footing with a German or an EU citizen.
Tourists and visitors who are victims of a violent act in Germany can be granted a one-off hardshippayment if they have suffered severe injury as a result of the offence.
2. What Types of Support can be Granted under the Victims Compensation Act?
As already mentioned above, compensation for damage of a purely pecuniary nature cannot be granted
under the Victims Compensation Act, nor is it possible for damages for pain and suffering to be paid.
Payment is be made for reimbursement of costs incurred as a result of the injury to health. The mostimportant items provided for are as follows:- Medical treatment
This includes mainly out-patient treatment, treatment by a physician, dental care, provision of medication,
dressings and remedies, as well as dentures etc., in-patient treatment and provision of medical aids.

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Home help and benefits in the event of long-term care dependency.
Basic pension
This is not means-tested, but is calculated according to the degree of incapacity to work. The basic
pension is intended to compensate for the loss of physical integrity and the non-quantifiable increase in
expenditure incurred as a result of the injury caused. A maximum of € 615 is payable monthly.
Additional severe disability allowanceIn the case of a person suffering particularly severe injury, the basic pension can be augmented by
payment of this allowance.
Not only the victim himself can receive compensation, but members of his family may also be entitled. If
the victim died as a result of a violent attack the widow and any children can be given a pension. In certain
cases it is even possible for the parents of victims of violent crime to be granted a pension.
I would like to illustrate the practical application of the Victims Compensation Act by way of an example
which actually took place in Germany as described:
On 11 June 2000 a husband and father of three children was beaten to death by three men in Dessau. He
was survived by his wife and his three children aged between five months and eight years. The perpetrators
were found guilty of murder and sentenced on 30 August 2000. An application for victim compensation madeby the surviving relatives was already submitted to the competent pensions office in June. Once theinvestigation files had been obtained, it was possible for this application to be granted as early as 16 August
2000, i.e. before judgment was given in respect of the perpetrators. The wife was granted a non-meanstested widow’s pension of approximately € 300. The children were granted a monthly pension for the loss of
one parent of approximately € 85 each. Depending on financial circumstances, this basic pension can beaugmented by a means-tested compensatory pension for both wife and children.
3. Who Decides on Whether Victim Compensation is to be Granted?
It is the pensions office which is competent for deciding on whether victim compensation is to be granted.
One important point of interest is that the pensions office is autonomous in its assessment of the evidence.
This means that it is not bound by the assessment under criminal law when coming to its decision.
If, for example, the court merely finds the perpetrator guilty of negligence, it is quite possible that thepensions office can find that the perpetrator acted with intent and thus grant the victim compensation.
Even if the defendant is acquitted, the entitlement to victim compensation is not automaticallyextinguished. By the same token the fact that the perpetrator is convicted does not automatically mean thatthe claim will be granted.
The degree of importance of the Victims Compensation Act is demonstrated by the amount of money paidout in this connection. In 2001, the federal government and the regional governments spent a total of
approximately 198 million Deutschmarks on the application of the Victims Compensation Act, whichcorresponds to around 100 million euro.
B. Victim Compensation Funds of the Federal StateA further form of State aid are funds which were set up so that in certain cases, victims could be given a
helping hand as quickly as possible and with the least possible bureaucracy involved. However, there is nolegal entitlement to payment from one of these endowment funds.
At federal level, funds were set up for victims of right-wing extremist attacks as well as for victims ofterrorist crimes. These are budgetary allocations which can be included again in the national budget every
year and must be reviewed annually. For this reason, material aid for victims of crime is paid in the form of
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1. Hardship Payments for Victims of Right-Wing Extremist Attacks
Unfortunately, the number of attacks committed against foreign citizens by violent right-wing extremists
has been increasing over the last few years. The fund demonstrates the fact that right-wing extremism isdeplored and is a sign of the solidarity of the State and its citizens with the victims.
There was provision in this fund for a total of 2.5 million euro for victims of right-wing extremist attacks
in the federal budget for 2002.
2. Hardship Payments for Victims of Terrorist Crimes
There was provision for 10 million euro for victims of terrorist crimes in the 2002 federal budget. This
fund was only set up in May 2002. The reason for this was the terrorist attack outside a Jewish synagogue on
the Tunisian island of Djerba on 11 April 2002. Fourteen Germans were killed in this attack, and it left its
mark on seventeen others for life, some of whom suffered severe burns. Since this act was committed abroad,it was not possible for support to be obtained under the Victims Compensation Act. So as to not leave thevictims and the bereaved families of those killed completely on their own, the Federal Government decided
on 24 April 2002 to make aid payments available from federal funds and established this emergency fund forthis purpose. As early as 24 May 2002 the first instructions for payment from this fund were made.
It has since been possible for German victims of the terrorist attack in Bali and family members of thosekilled to receive payments from this fund.
C. Victim Compensation Foundations of the Individual Federal States
In addition, the individual Federal states make provision for funds in their budget in order to ensure
individual support for victims of violent crime. The state of Baden-Württemberg, for example, has also madeavailable a fund of approximately 1.3 million euro for this purpose.
An example of how this might work in practice:
A family from Stuttgart is on holiday in Scotland when the father is shot dead during a robbery. The
Victims Compensation Act does not apply because the crime was committed abroad. However, since there isno terrorist or right-wing extremist connection, in this case the family can only receive assistance throughpayment from this fund.
D. Efforts at a European Level
I would like to conclude by outlining the direction being pursued in the European Union in respect ofvictim compensation. A Directive which is intended to establish EU-wide minimum standards for thecompensation of victims is currently the subject of discussion. The reason for the Directive is that the leveland standard of compensation varies from one EU country to another. There are even two countries, Italy
and Greece, that do not have any regulations on compensation at all.
This means that if a German travels on holiday to Greece and is the victim of a violent crime, he has noentitlement to compensation. The German Victims Compensation Act would not apply because the offence
was committed abroad, and in Greece there is no possibility of obtaining compensation from the State.
However, if the situation is reversed and a Greek person is the victim of a violent crime in Germany, he iscertainly entitled to be given compensation under the Victims Compensation Act.
The objective of the proposed Directive is thus to ensure that all EU citizens and people lawfully resident
in the EU can obtain a reasonable level of compensation for injury to their health suffered as a result of being
the victim of a crime committed within the EU.
There is currently intense discussion about this proposal at the level of the EU. It may well take quite
some time before this Directive is adopted, but the objective is clear: there should be equal standards forcompensation across the European Union.
IV. CONCLUDING REMARKS
I hope that I have been able to give you a comprehensive survey of the possibilities victims in Germany
have to obtain reparation.
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APPENDIX
Cases in Which Victim-Offender Mediation was Conducted 1997 to 2000
Federal State
BerlinBrandenburg
Hamburg
Hesse
Mecklenburg-Western
Pomerania
Lower Saxony
North-Rhine/Westphalia
Rhineland-Palatinate
SaarlandSaxonySaxony-Anhalt
Schleswig-Holstein
Thuringia
TOTAL
Annual increase

1997
98
2136
123
172
no data

1998
80
2174
145
205
85

1999
142
2344
217
295
87

2000
248
2636
239
618
173

no data
707
895
11
264
44
530
65
5045

753
1341
505
28
326
604
469
90
6805

948
1871
2056
149
297
462
688
149
9705

1449
2485
1367
167
342
569
709
119
11121

34.9

42.6

14.59

in %

Total increase since 1997 (not including Mecklenburg-Western Pomerania and Lower
Saxony): 120.43 %Brandenburg and Thuringia: approximate figures.

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RESTORATIVE JUSTICE: THE THAI EXPERIENCE
Dr. Kittipong Kittayarak＊

I. INTRODUCTION“Restorative justice” is the name given to a wide range of emerging justice approaches that aim for amore healing and satisfying response to crime. While each approach may be different, the basic philosophy
and principles of restorative justice are common: restorative justice views crime as harm to people andjustice as restoring social harmony by helping victims, offenders and the community to heal. In fact,
restorative justice is not a wholly new concept, elements of restorative justice have been presented in major
criminal justice systems for many decades, in some cases, centuries. With the obvious shortcomings ofconventional criminal justice and recent interest in reassessment of the relationships between offenders,
victims and the State in criminal cases, there are growing interests in restorative justice in many jurisdictions
around the world, including in Thailand.
The fundamental principles shaping the framework of restorative justice can be best described by thefollowing1:
1. Crime is a human process whereby humans violate social relationships, both personal and those implied
relationships with others as a consequence of being members of communities. Crime is not merely an act ofbreaking laws of the state; it is a tearing of the social or community fabric; it is the violation of one humanbeing by another.
2. The proper goal of justice is to repair the damage done and restore relationships, personal andcommunal, to their original state to the extent possible.
3. To have a chance at restoration, victims of crime must have the opportunity to choose to be involved in
the process of justice. Such involvement may include: information, dialogueue with the offender, mutual
resolution of conflict with the offender, restitution, reduction of fear, heightened sense of safety, partial
ownership of the process, getting the experience resolved and renewing hope.
4. To have a chance at restoration, offenders committing criminal acts must have the opportunity to accept
their responsibilities and obligations regarding individual victims and the community as a whole. Such
opportunity may lead to: participation in defining their obligations, safe face-to-face encounters with victims,
understanding the impact of their own actions, creative ways of providing restitution, identifying their own
needs, partial ownership of the process, getting the experience resolved and renewing hope.
5. To have a chance at restoration, the local community and its resources must be brought to bear on theneeds of victims and offenders as well as in prevention of delinquent and criminal acts.
6. To have a chance at restoration, the formal criminal/juvenile justice system must continue to work toensure victim and offender involvement which values genuine engagement of all participants without
coercion. It must continue to monitor and follow-up on accountability. It must exhaust less restrictive
interventions before moving toward incarceration alternatives as it seeks to promote justice in thecommunity.
In Thailand, like in many other Asian countries, restorative justice is not a new approach but a familiar
concept well entrenched in the Thai traditions and culture. Many elements of restorative justice still remainin the traditional way of communal justice in some rural areas. With such a solid background in the Thai
culture and increasing problems resulting from the shortcomings of conventional criminal justice, it is not＊

Director General,
Department of Probation,
Ministry of Justice,
Kingdom of Thailand
1Mark S. Umbreit and Robert B.Coates, Multi-Cultural Implications of Restorative Justice: Potential Pitfalls and Dangers(1998), pp.1-2.

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surprising to see a growing interest in restorative justice in Thailand. In my paper I examine the attempt to
introduce restorative justice in Thai criminal justice. Although restorative justice has been reintroduced in
Thailand only recently, and an attempt for its implementation is only in the beginning stage, restorative
justice has been very well received by the criminal justice communities and the public. There are also many
indications that it is likely to be adopted as a viable alternative to the formal criminal justice process for some
types of offenses soon.
II. WHY RESTORATIVE JUSTICE? : THE CASE OF THAILAND
There are many reasons why Restorative Justice has received much interest in Thailand.
A. The Shortcomings of Conventional Criminal JusticeDuring the past decade Thailand has witnessed a growing awareness and concern about the everincreasing size of its prison population and the continued and increasing reliance on the use of imprisonment
at sentencing. The problems have been exacerbated by the widespread use of methamphetamine, which has
doubled the prison population during the past five years. Before 1996, the prison population in Thailand hadremained approximately 120,000 but the “get tough” policy on drugs, which did not provide adequate
attention to the demand side, has resulted in a rapid increase of inmates, more than half of whom are drug
users or addicts. According to the statistics revealed in September 2002, there were approximately 250,000
inmates in prison while the available space could handle only 100,000 persons. Considering the manpower of
10,700 correction officers, the ratio rate of officers to inmates is approximately 1 to 24, which is very far fromthe internationally acceptable rate of 1 to 4 or 5.
Overcrowding has caused many problems within the criminal justice system ranging from the high costsof criminal justice administration, riots and human rights problems in prisons and the failure of rehabilitation
during confinement, etc. With the severity of the problems at hand, the policy on incarceration will graduallychange and, in my opinion, prisons will soon be preserved only for dangerous criminals who should be kept in
confinement. The future direction on the treatment of offenders in Thailand, in my opinion, will be toward
community corrections: the trend which coincides with principles of restorative justice.
Apart from problems of overcrowding, the Thai criminal justice system also faces problems of casebacklogs. The lack of screening processes, such as diversion programmes and other alternative measures,
during the police and prosecution levels have resulted in an influx of criminal cases to the formal justiceprocesses, which now inundate the work of the police, the prosecution and the court. It is not surprising tosee a criminal case taking more than a year to be decided in the criminal courts of first instance and several
more years before a final decision of the Supreme Court is given. Realizing the problem of delay in thecriminal process the Constitution of 1997 has stipulated that a suspect shall rightfully receive an “expeditious,
continual, and fair” investigation or trial. In implementing the constitutional provision, it was found that acriminal case pending the consideration of the court has to wait for more than a year before the case will be
adjudicated. As a result, it is obvious that more alternative measures and diversion programmes have to beurgently introduced at the pretrial stage so as to be able to achieve a speedy trial in Thailand.
With such shortcomings, the Thai justice system is now in search of new justice initiatives as a means tosolve the problems. As a result, when the concept of restorative justice has been presented to the public, it
has received considerable interest among practitioners and academics. This is partly due to the fact that
restorative justice not only presents new ways of looking at crime and punishment, but it also introducesalternative and diversionary measures which also help reducing caseloads and prison populations. In addition,
restorative justice also brings new dimensions to the solution of the high financial and human costs of justiceand to the expanded role of victims, offenders and communities in criminal justice.
B. The Need for more Community Involvement in Criminal JusticeDuring the past 2 decades Thailand has witnessed an increasing interest in community participation in theadministration of the country. This phenomenon was the result of the long campaign for democracy, which
culminated in the Constitution of 1997, widely called the People’s Charter. During the drafting of theConstitution, there were strong interests on the part of the people at the grassroots to have a greater role inadministering the country. As a result, the Constitution contains many provisions aiming at transforming thecountry’s philosophy of government from “representative democracy” to “participatory democracy”. The
Constitution has created the ground rules for transforming Thailand from a bureaucratic polity prone to abuse
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of political rights and corruption into more participatory in which citizens will have greater opportunity toshape their own destiny. It has set the framework of laws and administrative procedures, which promote
citizen participation, protect individual liberties, restricted state’s power to infringe upon individual rights,
advocate an independent judiciary, and create mechanisms for greater transparency and an accountable
government. It encourages decentralization by delegating more powers to local administrations andcommunities.
In the area of criminal justice, community participation in justice administration used to be the hallmark of
traditional Thai culture and traditions. Many conflicts were resolved, with mutual consent and satisfaction of
the adversaries, within the communities by respectable persons in the communities, mostly the elders,village-leaders, etc. Through the community bonding and networks, the duties of crime prevention,
treatment and support of offenders had largely remained within the community. However, because of thecountry’s reliance on highly centralized control of government for many decades this has resulted in the
decline and weakness of the role of the community particularly in these very important functions. With theestablishment of police stations in all districts all over Thailand with highly centralized command from thepolice headquarters in Bangkok, the rural community, which used to play a key role in crime prevention and,sometimes, mediation of minor infractions, have almost completely abandoned their roles.
With this new movement toward the revival of the community spirit and decentralization of power of thecentral government to local administration, the prospect of involving the community to have a moremeaningful role in the administration of justice is better than ever. The obvious shortcomings of the Thaicriminal justice system mentioned earlier have made people think back to the good old days of strong
community participation and networking which made a great contribution to the success of crime prevention
and treatment of offenders in the community.
The widespread use of drugs has also highlighted the need for more community involvement in crime
prevention and control. With such immense workloads of trivial drug cases in the criminal process andincreasing numbers of drug addicts/users, the policy makers have come to realize that there is no way to fightthe problem without full participation of the communities and all sectors within the society. There is anincreasing awareness that crime cannot and should not be the sole responsibility of the State to tackle alone.
The community and other private parties should join in and share such responsibilities with the State in theform of a partnership.
With such a background, it is not surprising to see that the government has put the policy of public
participation and involvement in criminal justice administration among its high priorities. The Department of
Probation, together with other relevant governmental and non-governmental agencies, are working on
several pilot projects all over Thailand in creating or bringing back “community justice networks” in thecommunity to assist in crime prevention and treatment of offenders in that community. These new networks
will also attempt to find linkages with local administrations, which are now enjoying more autonomy inaccordance with the new Constitution. The results of these pilot projects will help our future planning to
involve local communities to enter into “partnerships” with the State in areas of crime prevention and control.
The above-mentioned phenomenon has, I believe, contributed greatly to the implementation ofrestorative justice principles, as communities will play an important role in the process of achieving
restorative outcomes.
C. Wider Interest in the Protection of the Rights of Victims
As in many countries, the rights of crime victims have received due attention in Thailand only recently.
With the advent of the new Constitution of 1997, widely called the People’s Charter, there are two provisions
that directly addressed the right of crime victims. Section 53 provided that:“Children, youth and family members shall have the right to be protected by the State against violence andunfair treatment.
Children and youth with no guardian shall have the right to receive care and education from the State asprovided by law.”80

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Although the protection rendered by this Section does not address crime victims in general, it however
deals with such issues as domestic violence which is one of the major areas where victims need special
protection and treatment.
In addition, Section 245 of the Constitution stipulates that:“In a criminal case, a witness has the right to protection, proper treatment and necessary and appropriate
remuneration from the State as provided by law.
In the case where any person suffers an injury to the life, body or mind on account of the commission of acriminal offence by other person without the injured person participating in such commission and the injury
cannot be remedied by other means, such person or his or her heir has the right to receive an aid from the State,
upon the conditions and in the manner provided by law.”
The increasing awareness of the rights of victims in the Thai criminal justice system was a result of a long
campaign for criminal justice reform in the country. With the mandate by the Constitutions, the past five
years saw a dramatic increase in the protection of crime victims in both laws and practices. The Criminal
Procedure Code was amended to adopt a new procedure for interrogation of children who were victims ofviolence, particularly domestic violence. They were allowed to have a prosecutor, psychologist and social
worker present during the interrogation. Teleconferencing was also provided during court hearings so as toreduce the pressure of confrontation with the defendants. Moreover, recently Parliament passed the law oncompensation for crime victims and the wrongfully accused. Currently, the Ministry of Justice is in theprocess of preparing a ministerial regulation setting up the scheme for compensation.
As restorative justice places great emphasis on restoring the plight of crime victims, such heightenedawareness of the rights of victims of crimes has directly helped generate interest in restorative justice.
D. Recent Criminal Justice Reform in Thailand
Another major problem with the administration of criminal justice in Thailand, is the "non-system" of thecriminal justice agencies. Unlike in most countries where major organs in the criminal justice system, suchas the police, the prosecutors, the probation and correction officers, are under the purview of the Ministry ofJustice, in Thailand, criminal justice agencies are scattered in different places. Such an unorganized structureof the criminal justice system is one of the major causes for the lack of cooperation and coordination amongorgans within the system. Each agency in the criminal justice system often focuses its resources in solving
problems or creating works and projects within its own organization without adequate consideration of the
impact of such efforts on the criminal justice process as a whole. These have resulted in repetition of works,
the building of empires among criminal justice agencies, the lack of national criminal justice policy, the end
results of which is inefficiency in the administration of justice. This has made it very difficult to initiate or
implement any new criminal justice policy.
The recent overhaul of the criminal justice system was aimed at solving this structural problem.
According to the new structure, the judiciary, which has long been under the Ministry of Justice, became an
independent entity. At the same time, the Ministry of Justice, which used to be a small ministry overseeing
only the administrative works of the judiciary, has become the focal point for justice administration, quite
similar to the Ministry of Justice of Japan. 2 In this new structure, all agencies concerning justiceadministration, including those dealing with the treatment of offenders, were brought together under thesame organization. Most importantly, a new agency called the Office of Justice Affairs was established withthe aim of being a platform for policy planning and budget allocation within the justice system. To help theeffective functioning of this new office, the National Committee on Justice Administration, chaired by thePrime Minister, will be created. Apart from the heads of criminal justice agencies within the Ministry ofJustice, the Committee, according to the draft law proposed to the cabinet for approval, shall also, inter alia,

2

The new Ministry of Justice consists of the following agencies: (1) The Office of the Permanent Secretary, (2) the Office of the
Minister of Justice, (3) Office of Justice Affairs, (4) The Special Bureau of Investigation, (5) the Institute of Forensic Science, (6)the Rights and Liberties Protection Department, (7) the Department of Correction, (8) the Department of Probation, (9) the
Department of Child Observation and Protection, (10) the Department of Legal Execution. In addition, there are 3 otheragencies which are not within the Ministry of Justice but under the direct supervision of the Minister of Justice; they are the
Office of the Attorney General, the Office of the Narcotics Control Board and the Office of the Anti-Money Laundering Board.

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consist of the Prosecutor General, Police Commissioner General, Secretary General of the Court of Justice,representatives of the Bar, the Law Society, academics, and related NGOs.
With this new structure, it is a lot easier to design and implement new criminal justice policies andinitiatives, including restorative justice, as a means to solving inherent problems with the administration ofjustice.
III. HOW RESTORATIVE JUSTICE WAS INTRODUCED IN THAILAND?
Against this background, I would like to turn my attention to how the concept of restorative justice wasintroduced in Thailand. As mentioned earlier, even though during the past decade the concept of restorative
justice has been known and discussed among a few criminologists in the academic world, it was formally
introduced to Thailand only recently. The principles of restorative justice was mentioned for the first time on
October 6, 2000 at the National Seminar on Strategies for Criminal Justice Reform in Thailand organized by
the Thailand Criminal Law Institute at the Government House. In the Seminar, a numbers of strategic plansand proposals aiming at the overhaul of the criminal justice system were introduced. Among the many plansand proposals made, it was also suggested that “there must be a paradigm change from retributive torestorative justice”. However, as there were many issues presented at the Seminar, restorative justice wasmentioned only briefly.
However, the first national seminar on restorative justice, which formally introduced restorative justice tothe Thai criminal justice communities, was organized subsequently on January 6, 2002. Prior to that there
were several seminars and workshops on New Zealand’s “family conferencing model” which was introduced
not as a restorative justice programme but as a means to deal more effectively with juvenile cases. The
restorative justice concept, which is the framework of the family conferencing model, has not been mentioned
distinctively in those seminars and workshops.
In fact, the idea of organizing a national seminar to officially launch the restorative justice concept inThailand was carefully planned so as to be able to achieve optimal result. The venue was chosen at theGovernment House and the audiences were top criminal justice officials, leading academics and the elite
within the Thai society. The Seminar was presided over by Dr. Thaksin Shinawatra, the Prime Minister ofThailand, who is also a criminologist. The Seminar was also attended by HRH Princess Bajrakitiyabha, thegrand daughter of the Crown Prince of Thailand, who is currently doing her doctoral degree in law at Cornell
Law School. The Seminar was broadcast live all over Thailand by a public television channel.
The Seminar has achieved quite a successful result. There was good feedback as the media has paid greatinterest to this new justice initiative. Several articles were published in major newspapers, both English andThai regarding restorative justice. The Prime Minister himself gave several interviews afterward in supportof this new concept, particularly in the area of juvenile justice. The organizers also published several books
on restorative justice. Moreover, the restorative justice concept is now taught in advanced criminal law
courses in the major law schools as well as in other criminal justice institutions. To my knowledge, there areat least 4 Ph.D. candidates whose doctoral dissertations focus on restorative justice. Due to the success in
the launching of the idea, Thailand’s major research funding agencies have expressed their willingness to
support further studies on the application of restorative justice in Thailand.
Despite the fact that there are many reasons for applying restorative justice programmes in Thailand andstrong support for implementation as mentioned above, real implementation is not at all easy. First of all, thedrastic differences of the restorative justice concept from the mainstream criminal law ideology makes it
quite difficult to convince a number of conservative criminal justice officials to understand and accept the idea.
Moreover, as restorative justice is an evolving concept with no exact definition or formula, it is difficult for
criminal justice officials to understand, let alone to support the idea. Moreover, the Thai criminal justicesystem is not familiar with any diversion programmes, either at the police or prosecution level. Normally,
criminal cases proceed mostly through the official procedure from the police to the prosecutors, who rarely
use their discretion to dismiss a case. Almost all criminal cases with sufficient evidence, except minor
offenses with a fine as the maximum penalty, are prosecuted in the courts. Such unfamiliarity with informal
procedure makes it more difficult to initiate and successfully implement restorative justice programmes,
which in themselves are more advanced forms of diversions where restorative processes and outcomes are
key elements to the success of the programmes.
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One aspect, in my opinion, which partly contributes to the successful introduction of the idea of
restorative justice to the Thai justice circles and the general public, is the name in Thai of restorative justice.
Instead of translating it literally which would make it sound much more difficult and less comprehensible inThai, I have deliberately chosen the Thai word Samarn-Chan, which means “social harmony.” As a result, theThai terminology for restorative justice for the Seminar is Yutithum Samarn Chan- justice for social
harmony- the term in Thai which, in my opinion, may capture the true essence of restorative justice far
better than a literal translation. This has proven to be an appropriate and strategically correct choice, since
the word is well received by the media and the public as well as people in academic circles.
IV. DRUG REHABILITATION ACT OF 2002: AN IMPORTANT FOUNDATION FORRESTORATIVE JUSTICE PROGRAMMESAnother important development, which may provide a good foundation for the implementation ofrestorative justice programmes in Thailand, is the recent passage of the new Drug Rehabilitation Act of 2002
with the aim of implementing demand reduction programmes to counter the widespread use of
methamphetamine in the country. Although Thailand has been quite successful in cutting down heroin
production and consumption, we are still facing the problem of the widespread use of methamphetamine.
Methamphetamine is much easier to produce than heroin and is as lucrative. Although the volume of the
drug seized has notably increased, there is still widespread drug abuse, including among the young. The Thaigovernment has placed the drug problem issue high on its agenda. It has introduced the holistic approach to
drug prevention and suppression. While the government will continue with its efforts in supply-side
reduction by stepping up its strong law enforcement on drug producers and traffickers and cutting down theentry of production from abroad, at the same time, it will also put great emphasis on the reduction of thedemand for the drug by concentrating more on prevention strategies as well as on rehabilitation of drug
addicts.
As mentioned earlier, Parliament recently passed the Drug Rehabilitation Act of 2002. This law has forthe first time introduced compulsory drug treatment programmes to the country. According to theimplementation plan, the programmes will start operation, during the first phase, within 36 selected
provinces in early March 2003, and for the rest of the country in July this year. The compulsory treatment
programme will for the first time introduce “drug diversion programmes” to Thai criminal justice. It willallow drug addicts to undergo treatment instead of prosecuting them. If they are willing to receive treatment
and relinquish their drug habits, the prosecutors will drop the charges and they will be assisted in continuing
their daily lives in the community as ordinary people. To ensure that this new initiative will be successful,
the Department of Probation, in its capacity as the coordinator of the programmes, has worked closely withmany government and non-government agencies as well as the communities all over the country. It isbelieved that by concentrating seriously on rehabilitation and prevention, Thailand will be able to makeprogress in the fight against drugs. By such policy, the government will be able to step up the suppression as
well as to precisely target its suppression so that those punished will be the ones who deserve punishment,
not the addicts who themselves are the victims of the drug problem.
The introduction of the compulsory treatment policy is a new concept in drug rehabilitation in Thailand.
It will complement the voluntary treatment programmes, which we now have. As a matter of fact, thecompulsory treatment programme will strengthen the voluntary programmes, as it will increase their clients
immensely. With this new and clear policy from the government, Thailand is on the right track to pursue its
demand reduction policy. It is necessary that the drug rehabilitation capacity be increased to meet the risingdemand. However, to be successful in these undertakings it is important to involve the communities more in
the process of rehabilitation. In addition, we need to think about the issue of reintegration into society ofthese addicts. The communities must support and encourage them to start new lives.
According to the new procedure specified by the law, those arrested under drug consumption charges will
be sent to the Department of Probation for assessment and a review of the level of their addiction. The
Probation Department has set up the so-called “drug rehabilitation committees” in every province all overthe country to do the job. The Committee consists of a prosecutor as chair and a doctor, a psychologist, asocial worker and two representatives of the communities. The Committee will design drug treatment
programmes for each individual drug users/addicts. If they are able to meet with the rehabilitation
programmes prescribed by the drug Committee, their charges will be dropped. Currently, more than half of83

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the police, prosecutors and judges caseloads are drug cases, the programmes will not only introduce anappropriate solution to the drug problem, but they will also help in reducing the pressure of the heavy drug
caseloads on the Thai criminal justice system.
Moreover, the Drug Rehabilitation Act and the national policy on drugs will rely heavily on reviving thecommunity spirits and involving them in the drug rehabilitation programmes. Through the new policy, theProbation Department will try to establish “community justice networks” within certain communities aroundthe country. These networks will, among other things, assist in the persuasion of drug users/addicts toreceive treatment in voluntary treatment programmes (without having to arrest them). Family andcommunity support and encouragement are also necessary during and after the treatment. These networks
will collaborate closely with the volunteer probation officers in the aftercare and the follow up of the drug
users and addicts within the community after the treatment. If successful, the responsibilities of the
networks will hopefully be extended to other functions such as the prevention of crime, community mediation,etc.
In my opinion, this new law will directly contribute to the application of restorative justice in Thailand inmany aspects. Firstly, the new drug diversion programmes will make the Thai criminal justice officials
familiar with the concept of suspension of prosecution and diversion programmes. This is a major
breakthrough since Thailand, unlike in some countries, has never before adopted any kind of diversion
programmes as a normal practice. Given the large amount of cases going through this channel, it will makethese diversion programmes at the prosecution level a common practice in all jurisdictions. This will also
support the draft bill on suspension of prosecution of the Office of the Attorney General, which will soon besent to the cabinet for approval before being forwarded to parliament.
V. SELECTED AREA FOR TRIAL APPLICATION: DOMESTIC VIOLENCE
Domestic violence, particularly when female spouses are assaulted by their loved ones, has recently
received a great deal of attention in Thai society. Through long, continued and efficient campaigns by womenrights advocates, the public has started to realize the inadequacies of the conventional criminal law andcriminal justice process in protecting the rights of the aggrieved wife. In such cases it is obvious that in mostcases the victims do not want their husbands to be put into prison; they just want them to change their
behavior and stop hurting them. The criminal justice system in Thailand does not leave many choices for the
aggrieved wives, since the police, for obvious reasons, do not want to receive complaints as the incidents are
viewed as family matters. The beaten wives will mostly be forced to reconcile with the aggressors, a venue
which does not adequately protect them or guarantee that future similar incidents will not occur. On theother hand, if the police decide to proceed with the complaints, it is more likely than not that the wives will
later request the police or prosecutors to withdraw the case for fear that the husbands will have to be
imprisoned, a result which will directly affect the women and their children economically and socially. Such
dilemma represents the weakness of the existing conventional criminal justice process to which restorative
justice can appropriately fill the gap.
As a matter of fact, an attempt to introduce the restorative justice approach to the solution of domestic
violence was made even before the formal introduction of the restorative justice concept in January 2002. A
few years earlier, while serving as the Director of the Thailand Criminal Law Institute, I and a group of
women’s rights advocates attempted to introduce programmes for treatment of the aggressor as part of thealternatives to prosecution in domestic violence cases. At that time, although the idea was well received byacademics and practitioners, it was very difficult to start the programme without a strong commitment fromthe police, the prosecutors and a coordinating agency, such as, for the case of Thailand, the probation services.
After I had the opportunity to run the Department of Probation in August 2001, I then reintroduced thisprogramme on the first appropriate occasion in November of 2002, since November is the month for
campaigning against violence against women and children.
The project, which was named by the media as “husband rehabilitation clinic” or, literally in Thai,“husband repairing factory”, aims at setting up a diversion programme at the prosecution level for treatmentof abusive husbands. It is proposed that the police, after receiving complaints from the victims of aggression,
proceed with the case rather than viewing it as a family matter and decline to accept the complaint. At theprosecution level, the prosecution will consider conditional dismissal of the charge if the following
prerequisites are met: consent of the victims, the aggressors are repentant and willing to undergo a84

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treatment programme if necessary, the nature of the case is appropriate for pretrial dismissal (factors such as
the gravity of the case, etc. will be looked at). If the prosecutor decides that conditional dismissal is more
appropriate than prosecution, he will submit the case to the probation officer. The probation officer, after
considering the facts and circumstances of the case, may organize a conference among the victim, theaggressor, their relatives (if necessary) and respected members of the community (if appropriate) to findappropriate measures for the treatment of the aggressor and the solution to the personal conflict and/or otherproblems. In this process, the probation officer will act as a facilitator trying to seek reconciliatory measures
for the belligerent couple. The aggressor may be subject to some or all of the following conditions: attending
appropriate treatment programmes, be required to regularly report to his probation officer within a specified
period of time, providing restitution or rendering community service as deemed necessary. If the aggressor
was able to meet with the conditions set for him, the probation officer will report the positive results to theprosecution who will then drop the charge. On the contrary, if the agreed conditions were broken theprosecutor will continue with the suspended prosecution.
By having this alternative programme, it is hoped that not only both the victims and aggressors indomestic violence will be appropriately taken care of, but such measures will also allow the police to be more
efficient in the preventive campaign against domestic violence.
As mentioned earlier, the project was proposed once again in November 2001 during the National
Seminar for the Protection of the Right of Women and Children, an event held every year during the month ofNovember. This time it began to receive wider support from the public and has become front-page news.
However, it was not until November 2002 at a Seminar on Restorative Justice and Domestic Violence,organized by the Department of Probation and the Thailand Research Fund (TRF), that it became the talk of
the town and one of the biggest news during the campaign month for ending domestic violence.
Although the proposed scheme has received a lot of publicity and overwhelming support from the public,
the Department of Probation is still unable to launch the project as early as expected due to reluctantance on
the part of the Office of the Attorney General to start the suspension of prosecution scheme without any backup law on it. The proponents of the scheme are of the opinion that no law is needed in this case since inlimited circumstances, particularly in petty crimes, the prosecution has already adopted the opportunity
principle of dropping prosecution of several cases on the grounds that prosecution will serve no public
interest. Such non-prosecution orders were issued even without any conditions. As a result, in domestic
violence cases where the victims provide their consent; the nature of the case is not aggravated; and theoffenders are willing to undergo and complete rehabilitative and restorative programmes, there are even lessgrounds for prosecution. Although there is no real opposition to the idea, some believe that it may be betterto wait for the law on suspension of prosecution before attempting an innovative idea such as this. Others,
particularly more conservative criminal justice and judicial officials, may simply not understand theseriousness of the problem and may not see any urgent need for a special programme of this kind.
Despite the obstacles for the immediate implementation of the scheme, I am quite confident that the
project will soon be implemented. Recently the Office of the Attorney General has shown an interest in the
programme and a discussion with the Department of Probation as to how to implement such programme willsoon occur.
Apart from the area of domestic violence, attempt has been made in the use of restorative justiceapproaches in juvenile justice. Currently, there are ongoing research projects aiming at setting appropriate
schemes for restorative justice approaches in dealing with juvenile delinquents. In addition, the Departmentof Corrections has initiated a pilot project on restorative justice in Nontaburi prison by setting up a
restorative justice process between the victims of crime and their relatives with the inmates before providing
parole. These are some examples of the healthy trends towards more widespread adoption of restorative
justice principles in the Thai criminal justice system in the near future.
VI. FUTURE TRENDS OF RESTORATIVE JUSTICE IN THAILAND
Restorative justice policies are, in my opinion, a benevolent means of addressing crime problems and, inthe case of Thailand, are appropriately capable of addressing many concerns in the administration of justice.
Underlying the crime prevention goals of restorative justice is the reduction of prison populations and formal
criminal justice processing through the rehabilitation of offenders by committing them to assuming greater
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accountability and sensitivity to their victims. The procedures through which prison reductions are to occur
involve the use of various forms of diversions from courts as well alternatives to incarceration which also
coincides with the current policy of reducing cases coming into the formal justice processes. In addition, therestorative process by which restorative outcomes are achieved is the process that involves and empowers
individuals and communities to deal with many of the crime and disorder problems normally dealt with by thestate criminal justice system. In line with the policy of more community participation and involvement,
restorative justice emphasizes the solving of crime and justice problems through the delegation of many
aspects of criminal justice decision making to the local level. It also supports the use of partnerships, where
desirable, between the private parties, that is, individuals and communities on the one side, and the publicspheres, that is, state agencies, such as police, prosecutors and probation services, on the other.
Although it will not be easy to bring restorative justice policies into practice within a short period of time,
the prospect of its being accepted into the mainstream criminal justice system are very bright. In the case ofThailand, I believe that it is necessary to make sure that restorative justice is a complement to and not a
replacement of conventional criminal justice. Moreover, it is important to, at least at the outset, carefully
select areas of trial application that can guarantee success with fewer objections. For example, restorative
justice policies may be initiated in juvenile justice and other areas where the plights of crime victims are
obvious, such as in domestic violence, car accidents, etc. In addition, it is also important to distinguish
restorative justice from other diversion programmes by placing the utmost importance on restorative
processes where victims should be placed at the center of the attention with appropriate participation fromthe offenders and the communities. Finally, we have to be mindful that restorative justice is an evolving
concept and there is no definite formula for success. What works in one society may not fare as well in others.
Each country has to find its own recipe which properly balances the conventional role of criminal justice withthis new concept so as to be able to come up with a better way to ensure justice to all.

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A BRIEF OUTLINE OF THE CURRENT SITUATION ON THE
PROTECTION OF VICTIMS OF CRIME IN THAILAND
Dr. Kittipong Kittayarak＊
I. INTRODUCTION
Early in history, criminal law was essentially law for victims. Victims of crime were the center of theadministration of criminal justice. Most criminal sanctions aimed at providing redress to the victims, typicallyin the forms of compensation and restitution. The concept of crime as a “private wrong” has been replacedby the emergence of the notion that crime is an act against the well being of the state and thus needs “publicprosecution”. The importance of the role of the victim of crime was limited to that of a “witness”. Over the
past few centuries, the defendant and the State evolved as the two parties with legal standing in criminal
proceedings. The victims were virtually forgotten and became, in the words of Bard, “the party without
institutionalized voice in the legal process”1.
The changing paradigm during that period was based on the following premises2:
1. A crime is primarily an offense against the government rather than a private wrong.
2. The government, because it acts for the good of the citizenry, cannot be held accountable for its
mistakes or negligence in the administration of criminal justice.
3. Specially trained professional officers are better at controlling crime and seeing that justice isaccomplished than the private citizens or victims of the offenses.
4. Victims are useful to the system as information sources and witnesses; their interests are notimportant to the system and could interfere with the efficient administration of justice.
5. Because of the great power of the state and the potential for abuse, persons accused or suspected ofcommitting a crime need to be protected with an array of procedural rights and privileges.
This “new paradigm” which has remained the mainstream thinking of the criminal justice systems aroundthe world for a long time until the older ideas have been rekindled only recently by the movement for theprotection of crime victims.
II. CURRENT SITUATION REGARDING THE RIGHTS OF VICTIMS OF CRIME IN THAILAND
As in many countries, the rights of crime victims have received due attention in Thailand only recently.
There are several factors leading to the awareness of the plight of victims of crimes in Thailand. To begin
with, in my opinion, the movement for the protection of rights of women and children has contributed a great
deal to the awareness and concerns of the plight of victims of domestic violence and child abuse. Dissatisfied
by the poor response of the criminal justice system, which does not adequately protect women in case of
sexual assault and domestic violence, leaders of the movement have effectively highlighted the weakness ofthe criminal justice systems and created civil society networks to substitute such shortcomings. They havebrought to light the plight of crime victims and the necessity for them to be better assisted, supported,
informed and, sometimes, participated in their own criminal trial. In addition, the increasing awareness of therights of victims in Thai criminal justice was a result of a long campaign for criminal justice reform in the
country. Such movement, which happened during the drafting of the Constitution of 1997, allowed theopportunity to put several provisions regarding the rights of victims in the Constitution. For instance,
Section 53 provided that:＊

Director General,
Department of Probation,
Ministry of Justice,
Kingdom of Thailand
1
M. Bard, “Unblaming the Victim” in Social Policy (Winter 1985) at 43-46.
2
P.S. Hudson, “The crime victim and the criminal justice system: A time for change” Pepperdine Law Review 11(1984), at 24.

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RESOURCE MATERIAL SERIES No.63“Children, youth and family members shall have the right to be protected by the State against violence andunfair treatment.
Children and youth with no guardian shall have the right to receive care and education from the State asprovided by law.”
Although the protection rendered by this Section does not address crime victims in general, it however
deals with such issues as domestic violence, which is one of the major areas where victims need special
protection and treatment.
In addition, Section 245 of the Constitution stipulates that:“In a criminal case, a witness has the right to protection, proper treatment and necessary and appropriate
remuneration from the State as provided by law.
In the case where any person suffers an injury to the life, body or mind on account of the commission of acriminal offence by other person without the injured person participating in such commission and the injury
cannot be remedied by other means, such person or his or her heir has the right to receive aid from the State, upon
the conditions and in the manner provided by law.”
This provision is a mandate for the setting up of the scheme for compensation and assistance of victims
and witnesses in the Thai criminal justice system.
With the mandate by the Constitution and the increasing interest of the general public in the necessity ofreform of the criminal justice system, the past five years saw a dramatic increase in the protection andassistance of crime victims in both laws and practices. The Criminal Procedure Code was amended to adopt a
new procedure for interrogation of children who were victims of violence, particularly of domestic violence.
They were allowed to have a prosecutor, psychologist and social worker present during the interrogation.
Teleconferencing was also provided during court hearings so as to reduce the pressure of confrontation withthe defendants. Moreover, recently Parliament has passed the law on compensation for crime victims andthe wrongfully accused. Currently, a new agency called Department of Rights and Liberties Protection,
which includes a division on victims’ assistance, was recently established. The Department is now in theprocess of preparing ministerial regulations setting up the scheme for compensation.
III. VICTIMS’ RIGHTS TO INFORMATION AND PARTICIPATION IN THE CRIMINALJUSTICE PROCEEDINGSThe right of crime victims to be informed is perhaps the most fundamental right without which the otherrights and services available to them may be meaningless. There has been an increasing consensus among
many countries that it is necessary to change current practices, which do not provide basic information tocrime victims about the status of their cases. To some critics, the underlying thinking for these changes,
however, may not result directly from the recognition of the significance of the right of the victims of crime asmuch as of the fact that the criminal justice system would benefit by “being nicer to victims”. Several
research studies have pointed out that the reason that victims of crime did not report crime incidents to thepolice was because they were apprehensive about how they would be treated and whether they would be
believed. Moreover, the major reason why victims and witnesses did not cooperate with the authorities were
not because they were uncooperative but because they were intimidated by the criminal justice system anduninformed as to what they were expected to do. As a result, there have been notable improvements in thecriminal justice systems of many countries in regard to new developments designed to address victim’s needs
for better treatment and more information, as well as to the need of the State to have cooperative witnesses.
Although such developments are very much welcome, it should be noted that crime victims do not justwant to be treated nicer but to be able to participate in the criminal justice system. In this aspect, there has
been heated debate on whether or not and to what extent it should be allowed. Advocates of victims’ rights toparticipate in the criminal justice process present a host of arguments in its favor, ranging from the moral topenological. Some argue that sentencing will be more accurate if victims convey their feelings and that thecriminal justice process will be more democratic and better reflect the community’s response to crime.
Victim participation will also remind the judges and prosecutors that behind the state remains a real personwith an interest in how the case is resolved. It may also lead to increased victim satisfaction and cooperation
with the criminal justice system, thereby enhancing the system’s efficiency. Moreover, when the court hears
from offenders’ family and friends, fairness dictates that the people who were actually injured should be
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allowed to speak. Some researchers also suggested that victim’s participation also promotes psychologicalhealing of victims as well as the rehabilitation of offenders as they confront the reality of the harm that theycaused to victims.
On the other hand, opponents of the movement also pointed out many reasons for disagreement. For
instance, some suggested that it might disrupt court proceedings or expose the court to public pressure fromwhich it should be insulated. Moreover, critics are afraid the court may be prejudiced by the presence ofvictims, which may diminish the quality of justice. Prosecutors and judges may be cautious of this since itmeans that their control over cases will be eroded.
A. Right to Information
In general, the right of victims to be informed has not yet been legally guaranteed in Thailand. In practice,
however, victims were given some types of information according to the internal policy or directives of eachcriminal justice agency. Although in my opinion, there would be no strong objection to the enhancement of
the right of crime victims to be informed of the status of their cases, there has been inadequate attention toits improvement by the relevant authorities. This may be because of the lack of appropriate perspectives oncrime victims on the part of the Thai criminal justice officials.
As far as the notification of termination of investigation proceedings and decisions of the prosecution areconcerned, crime victims are not automatically entitled to the notification of termination of proceedings fromthe police nor do they automatically receive any notification from the prosecution on whether or not the caseis prosecuted. Practices vary from office to office on this.
Regarding the inspection of files and information, the victims of crime in Thailand do not have any right toinspect the files of inquiry. During the drafting of the Constitution, a question was raised as to whether andto what extent the victims of crime should have the right to access the police and prosecutor’s files.
However, after a debate, it was decided that they are not allowed to see the files except their own statement,
since there was a fear that important evidence might be jeopardized. In practice, however, the police andprosecutor, upon their discretion, will allow some access by the injured party, particularly to the injured
party’s lawyer.
With regard to the right to know reasons for non-prosecution, Section 241 of the Constitution provided
that “In a criminal case for which the public prosecutor issues a final non-prosecution order, an injured person,
the suspect or an interested person has the right to know a summary of evidence together with the opinion of
the inquiry official and the public prosecutor with respect to the making of the order for the case, as provided
by law”. The aim of this provision is to make the prosecutor’s decision not to prosecute more transparent as
it may be checked by the injured party. Moreover, this may allow the injured party to decide whether or not
he will start his own private prosecution.
Apart from the above mentioned right to information, I believe that it is also necessary to keep the victims
of crime informed of the outcome of court proceedings and the release of the offenders from custody.
B. Right to Participation in Criminal Proceedings
Unlike in most countries where there has been heated debate regarding whether or not victims of crimeshould be allowed to participate in judicial proceedings, Thailand, under the still prevalent concept of private
prosecution stipulated in its Criminal Procedure Code, allows victims of crime the full right to bring theircases to the court by themselves as joint prosecutors. Although the laws on criminal procedure in Thailand
were modeled after the civil law system, many elements of common law were presented in the laws as wellas in practices, including the concept of private prosecution.
According to the Thai criminal procedure, the victims of crime have the full right to bring the case tocourt by themselves without having to initiate a complaint to the police. Criminal offenses have beenclassified into two types: compoundable and non-compoundable offenses. Compoundable offenses are nonserious crimes; while non-compoundable offenses are more serious crimes which have a more adverse
impact on society.
For compoundable offenses the decision on whether or not to initiate criminal proceedings remains fully
within the hand of the injured party. The injured party may either request the police to proceed with criminal
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investigation by submitting a complaint to the police or he or she may prosecute the case directly to the
Criminal Court by himself. Without a complaint from the injured party, neither the police nor the prosecutor
can start investigation or prosecution. In addition, if the injured party decides to withdraw the compliant
during any stage of the criminal proceedings, the case will be dismissed.
In regard to non-compoundable offenses, however, the main responsibilities of criminal prosecution
remain with the State throughout the prosecution. The injured party, however, can still play a role in thecriminal proceedings. For instance, apart from being able to file a complaint to the police or file a separate
suit directly to the Court, the injured party can also submit a request to the court for permission to join in theprosecution’s case as a “joint prosecutor”. The prosecutor, however, is in charge of the case and can request
the court to withdraw the status of joint prosecutor from the injured party if he thinks he or she may
jeopardize the case.
In reality, there are not many cases brought to the Court through this private prosecution channel. Thisis because of the high cost of litigation and the lack of investigation facilities and capabilities on the part of the
injured party.
In my opinion, the model in Thailand is a result of the product of the westernization of law but not of
genuine concern for the right of the accused. In fact, the choice of the victims of crimes should not be
between joining the proceedings as a “joint prosecutor” or not joining at all. Instead of providing such avenue,
which is in fact impractical, the criminal process must take into account the real needs of the victims of crime.
Most victims, I believe, do not want to be involved to the extent of being a “joint prosecutor”. In most
instances, they want to have the right to observe and to have some “ownership” of the process. I am insupport of the model of “private accessory prosecutor” as adopted in Germany which may provide a middle
ground for victims’ participation in criminal proceedings.
IV. CRIME VICTIM’S RIGHT TO RESTITUTION AND COMPENSATION
It is obvious that crime victims suffer damage from crime in terms of loss of property, bodily injury, deathand mental suffering. Such suffering definitely causes some damage and costs to the victims. It is only fair tosay that such damage and costs should not be left unaddressed, but, where appropriate, offenders shouldmake fair restitution to victims, their families or dependents. Such restitution should include the return ofproperty or payment of the harm or loss suffered, and reimbursement of expenses incurred as a result of thevictimization. To obtain such restitution, many jurisdictions allow the consideration of civil claims in criminal
proceedings or the issue of a restitution order directly by the court. Apart from claiming directly from theoffenders, who oftentimes are unable to pay their dues, crime victims may generally be entitled tocompensation from the State for monetary relief, separate from the apprehension and conviction of theoffender.
A. Civil Action in Criminal Procedure
In Thailand, the injured party is not allowed to enter into the so-called partie civile, a procedure whereby
the victim of crime can pursue a civil claim against the offender at the same time and in the same proceedings
as the criminal trial. However, the Thai Criminal Procedure allows the prosecutor, in some types of offenses,
such as in cases of theft, snatching, robbery, gang-robbery, piracy, extortion, cheating and fraud, criminal
misappropriation and receiving stolen property, to apply for restitution of the property or the value thereof on
behalf of the injured party. A civil case can also be instituted by the injured party in connection with thecriminal case. However, in reality such an avenue is too difficult to attain restitution since the injured party
would need to have assistance from a lawyer and the lengthy civil proceeding would deter such practice.
B. Restitution
A Restitution order issued directly by the criminal court that the offender should compensate the victim isanother method that, if available would directly assist the victim of crime to attain restitution. However, inThailand, there is no law allowing the court to issue such an order. In order to assist the victims of crime, theCourt in some countries may on its own initiative and discretion issue such order. Restitution, in my opinion,
if appropriately used, is an effective measure, which may serve rehabilitative and punitive purposes. It is agood way to alleviate harm done to the victim and may provide a constructive way for the offender to be held
accountable for their action.

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C. State Compensation Scheme
Although crime victims are entitled to the choice of partie civile or restitution order as mentioned earlier,in reality, it would be difficult for them to receive adequate compensation or any compensation at all. This isbecause in many criminal cases offenders cannot be identified and brought to justice. Moreover, offenders
may lack enough money to make up for victims’ damages. Victims themselves may not be able to collectenough evidence to sustain civil actions as well as to hire a lawyer. For these reasons, state compensation isa necessary means of providing financial relief for victims of crime.
As mentioned earlier, the Thai Constitution of 1997 stipulated that a state compensation scheme forvictims of crime be established. Recently, the Victim Compensation Act of 2001 was promulgated and theMinistry of Justice is in the process of drafting ministerial regulations for the implementation of the scheme.
V. RESTORATIVE JUSTICE AND VICTIMS OF DOMESTIC VIOLENCE: A PILOT PROJECT
As in the case of Thailand it is very difficult to introduce restorative justice from a top down approach, we
decided to start with the issue of domestic violence, particularly in cases of battered wives. This is because
domestic violence particularly when female spouses are assaulted by their loved ones has recently received agreat deal of attention in Thai society. Through long, continued and efficient campaigns by women’s rights
advocates, the public has started to realize the inadequacies of the conventional criminal law and criminal
justice process in protecting the rights of the aggrieved wife. In such cases it is obvious that in most cases
the victims do not want their husbands to be put into prison; they just want them to change their behavior andstop hurting them.
Unlike in other countries where the criminal justice system may already have more appropriate
alternatives the criminal justice system in Thailand does not leave many choices for the aggrieved wives,
since the police, for obvious reasons, do not want to receive these complaints as the incidents are viewed as afamily matter. The battered wives will mostly be forced to reconcile with the aggressors, a venue which does
not adequately protect them or guarantee that future similar incidents will not occur. On the other hand, if
the police decide to proceed with the complaints, it is more likely than not that the wives will later request
the police or prosecutors to withdraw the cases for fearing that the husbands will have to be imprisoned, aresult which will directly affect the women and their children economically and socially. Such dilemma
represents the weakness of the existing conventional criminal justice process to which restorative justice canappropriately fill the gap.
As a matter of fact, an attempt to introduce the restorative justice approach to the solution of domestic
violence was made even before the formal introduction of the restorative justice concept in January 2002. A
few years earlier, while serving as the Director of the Thailand Criminal Law Institute, I and a group of
women’s rights advocates attempted to introduce a programme for the treatment of the aggressor as part ofan alternative to prosecution in domestic violence cases. At that time, although the idea was well received byacademics and practitioners, it was very difficult to start the programme without a strong commitment fromthe police, the prosecutors and a coordinating agency, such as, for the case of Thailand, the probation services.
After I had the opportunity to run the Department of Probation in August 2001, I then reintroduced thisprogramme on the first appropriate occasion in November of 2002, since November is the month for
campaigning against violence against women and children.
The project, which was named by the media as “husband rehabilitation clinic” or, literally in Thai,“husband repairing factory,” aims at setting up a diversion programme at the prosecution level for treatmentof abusive husbands. It is proposed that the police, after receiving complaints from the victims of aggression,
proceed with the case rather than viewing it as a family matter and decline to accept the complaint. At theprosecution level, the prosecution will consider conditional dismissal of the charge if the following
prerequisites are met: consent of the victims; the aggressors are repentant and willing to undergo atreatment programme if necessary; and the nature of the case is appropriate for pretrial dismissal (factors
such as the gravity of the case, etc. will be looked at). If the prosecutor decides that conditional dismissal ismore appropriate than prosecution, he will submit the case to the probation officer. The probation officer,
after considering the facts and circumstances of the case, may organize a conference among the victim, theaggressor, their relatives or trusted persons (if necessary) and respected members of the community (ifappropriate) to find appropriate measures for the treatment of the aggressor and the solution to the personal
conflict and/or other problems. In this process, the probation officer will act as a facilitator trying to seek
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reconciliatory measures for the belligerent couple. The aggressor may be subject to some or all of thefollowing conditions: attending appropriate treatment programmes (such as programmes to control anger orto quit drinking, etc.); regularly report to a probation officer within a specified period of time; and providing
restitution or rendering community service, as deemed necessary. If the aggressor is able to meet with theconditions set for him, the probation officer will report the positive result to the prosecution who will thendrop the charge. On the contrary, if the agreed conditions are broken the prosecutor will continue with thesuspended prosecution.
By having this alternative programme, it is hoped that not only both the victims and aggressors indomestic violence will be appropriately taken care of, but such measures will also allow the police to be more
efficient in the preventive campaign against domestic violence.
As mentioned earlier, the project was proposed once again in November 2001 during the National
Seminar for the Protection of the Rights of Women and Children, an event held every year during the monthof November. This time it began to receive wider support from the public and has become front-page news.
However, it was not until November 2002 at a Seminar on Restorative Justice and Domestic Violence,organized by the Department of Probation and the Thailand Research Fund (TRF), that it became the talk of
the town and one of the biggest news items during the campaign month for ending domestic violence.
During the early debate on at what stage should the case be referred to this restorative process, there
were suggestions that this should be done during the police level. However, there are several reasons whichhave made it less appealing to do as such. Firstly, it is not legally possible for the police once they haveaccepted the complaint by the battered wife to use its own discretion not to pursue the case. Secondly, there
are some concerns in regard to the use of discretion at this level which has low visibility and thus is difficult
to structure and control.
Although the proposed scheme has received high publicity and overwhelming support from the public, theDepartment of Probation is still unable to launch the project as early as expected due to reluctantance on thepart of the Office of the Attorney General to start the suspension of prosecution scheme without any
corresponding legislation. The proponents of the scheme are of the opinion that no law is needed in this casesince in limited circumstances, particularly in petty crimes, the prosecution has already adopted theopportunity principle in dropping the prosecution of several cases on the grounds that prosecution will serve
no public interest. Such non-prosecution orders were issued even without any conditions. As a result, indomestic violence cases where the victims provide their consent, the nature of the case is not aggravated andthe offenders are willing to undergo and complete a rehabilitative and restorative programme, there are evenless grounds for prosecution. Although there is no real opposition to the idea, some believe that it may bebetter to wait for the law on suspension of prosecution before attempting an innovative idea such as this.
Others, particularly more conservative criminal justice and judicial officials, may simply not understand theseriousness of the problem and may not see any urgent need for a special programme of this kind.
Despite the obstacles for the immediate implementation of the scheme, I am quite confident that the
project will soon be implemented. On the latest movement, the Office of the Attorney General has shown aninterest in the programme and a discussion with the Department of Probation as to how to implement such a
programme will soon occur.

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VISITING EXPERTS’ PAPERSVICTIM SUPPORT IN THE UK – ITS HISTORY AND CURRENT WORKPeter Dunn＊

I. INTRODUCTION
Victim Support is the national charity for victims of crime in England, Wales and Northern Ireland and it
includes the Witness Service. Scotland also has Victim Support but because its legal system is different tothat of the rest of the UK, Victim Support Scotland is a separate organisation. Our role is to help people copewith crime.
II. VICTIM SUPPORT• Supports victims• Supports witnesses in all criminal courts in England and Wales• Campaigns for victims’ rights• Trains staff in other agencies• Provides consultancy services
Victim Support is the national charity for victims of crime and witnesses. We are an independent service
offering free and confidential help, irrespective of whether or not a crime has been reported. Our primary
purpose is to help people cope with crime. In recent years we have offered help and support to people
attending court, through our witness services. We also campaign for victims’ rights and we are regularly
consulted by a range of public agencies about issues concerning victims.
We offer training and consultancy services to public agencies and commercial organisations, for example
we recently ran a national training programme for the new Youth Offending Teams in victim awareness, via
the Youth Justice Board. We also offer consultancy to retail and security firms whose staff have been victims
of crime at work.
Victim Support was founded in Bristol, which is in south west England, in 1974 by a police officer and aprobation officer. There are now 374 Schemes throughout England, Wales and Northern Ireland, organised
into 52 Areas which are coterminous with police and other criminal justice agency boundaries. These are 52
separate charities with their own boards of trustees, which are affiliated to the National Association of Victim
Support Schemes (normally known as Victim Support). London and Surrey are organised differently. In
London there are 32 boroughs and each has its own separate Victim Support service. In Surrey there are asmaller number of individual services for each major town in the county.
In Victim Support we have:• 13,803 volunteers• 1140 staff (98 of these at National Office);and our finance comes from:• Central government (the Home Office) which in 2001-2 contributed £27 million, (equivalent to Yen 4.7
billion). This is 80% of our funding• Local government and donations, which provides 20% of our funding.
Victim Support is a charity, and this enables us to remain independent of central government and thecriminal justice system.
＊

Head of Research and Development,
Victim Support National Office,United Kingdom

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III. VALUES AND PRINCIPLES• Services are free and confidential – we do not pass information about victims on to other individuals ororganisations without the victim’s consent• Valuing diversity helps make our services equally accessible• We are independent of the criminal justice system, but able to influence it• We work in partnership with other organisations, locally and nationally.
Confidentiality can be a difficult principle to uphold. Courts and police sometimes expect us to tell them if
witnesses we are in contact with do not want to give evidence. The 1998 Data Protection Act has made somepolice services less willing to share information with us, and we need this information to receive andprioritise referrals. The 1998 Human Rights Act means we have to balance the principle of confidentiality
with principles such as the right to life, so in some very limited and exceptional circumstances we would haveto breach confidentiality if, for example, someone’s life is in danger.
Valuing diversity includes:• Ensuring staff and volunteers reflect the demographic mix of the communities in which they work
• Making services equally accessible to everyone, regardless of language, race, disability, sexuality etc.
• Ensuring people are offered support in a manner which is appropriate to their needs• Taking action to promote anti-discrimination initiatives• Ensuring staff and volunteers are treated fairly.
Although most of our income comes from the Home Office, we are an independent charity and this means
we can, when necessary be critical of government initiatives that fail to promote the rights of victims andwitnesses. Working in partnership means using local structures (more information about this is available in alater part of this paper) and working with other voluntary and statutory organisations to provide the best
possible service to victims and witnesses. Examples of partnership work include the provision of local
services to domestic violence victims and support for young witnesses with the NSPCC. In domestic
violence work, we do not operate refuges (houses where women who are victims of domestic violence canstay, with their children, to escape the violence). So we have to refer women in need of this provision to the
local branch of Women’s Aid or Refuge. Similarly, although we support witnesses in court, some specialist
aspects of the support might be undertaken by other agencies. The National Society for the Prevention of
Cruelty to Children work with children who have been abused, and they might sometimes act as preparer if
the child has to go to court. So it is important that we work closely and co-operatively with a range of otheragencies.
IV. VICTIM SERVICES
In 2001-02 we contacted:• 1,257,089 victims• 151,603 crown court witnesses in 88 crown courts• 103,073 magistrates’ court witnesses in 207 magistrates’ courts.
We do not usually offer a service to victims of minor offences and car theft victims, unless these have an
unusually significant impact for the person, such as racial harassment or the theft of a disabled person’s car.
The Magistrates’ Court Witness Service is a very new development for Victim Support. During the year
2000-2001 we have increased the number of services in the magistrates’ courts and all criminal courts in
England and Wales now have a witness service.
Our 374 local services are managed by 52 Areas (with the exceptions of London and Surrey). Each Area
has a Management Committee who are the trustees of the local charity, which employs an Area Manager, acoordinator for each local service and a small number of administrative staff. Most of the support of thevictims is done by unpaid volunteers. Areas are individual charities, affiliated to the National Association ofVictim Support Schemes.
The witness services are managed by a coordinator, most of whom are supervised by area managers,
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witness services, fearing that the service might interfere with the judicial process. However, in many
instances the improved support of witnesses has enabled trials to continue when they previously might havefailed, and this has helped witness services gain credibility and the respect of witnesses and the court.
Victim Supportline operates during daytime and evening hours, and is run from Victim Support National
Office. It is staffed by a manager, six coordinators and a team of volunteers. Last year it took 22,083 calls.
Its telephone number is 0845 30 30 900.
97.3% of the victims we help are referred directly by the police, who ask victims if they consent to theirdetails being passed to the local Victim Support scheme. (The Data Protection Act, implemented in October
2001, has made this more difficult.) If the offence is one of domestic violence, homicide or sexual crime,
referrals are not made directly. This is particularly important with domestic violence, when we must ensurethat contact from a volunteer does not put the victim at further risk.
Victim Support wants to increase the number of victims referred by themselves or other agencies. Thisis so that we can offer a service to many more of the 54% of victims who, according to the 1999 British Crime
Survey do not report the offence to the police.
A. Referral Trends in 2001-02• More referrals of violent crime (robbery up by 13%)
• Less domestic violence (down by 5% on last year, following a steady increase)• More referrals of racially motivated crime (up by 13%) – a tenfold increase since 1993
• 27% of referrals are burglary victims• More referrals of criminal damage (up 8%)
To some extent, these figures replicate current crime trends in the UK, where burglary and theft has
reduced slightly, but violent crime has increased. There is more street robbery, partly due to thefts in thestreet of mobile phones etc by young people, committed against young people. Very recently, there has beenan alarming increase in gun crime which is a source of great concern as these offences are a feature ofdeprived urban communities, and witnesses are often too intimidated to give evidence. The trend for a verylarge increase in referrals concerning domestic violence, racially motivated crime and other hate crime(including homophobic crime) may be due to more awareness of the extent of these offences, better and more
informed police response to it; and for racist crime the establishment of reporting centres. These are atlocations other than police stations where racist incidents can be reported to the police, and where Victim
Support is often represented.
Types of crime referred to us:• 65% of referrals are for people who have been victims of property crime such as burglary and criminal
damage.
• 29% is violent crime, including homicide, sexual offences and robbery.
• 6% is for referrals of other crime categories, including road death.
V. SERVICE DELIVERY
By volunteers supervised by a smaller number of paid staff• By specialist staff for supporting victims of racist or homophobic crime and domestic violence• All volunteers are carefully selected and trained (40 hours basic training)• Serious crime training is available for more experienced volunteers who want to broaden their skills
and experience.
VI. TRAINING
All volunteers must complete a basic training course (about 40 hours). This covers a range of topics
including:• Victim Support aims, values and organisation• The impact of crime on victims and significant others• Listening skills and support skills• Diversity and equal opportunities.
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Volunteers are usually expected to work for a few months before going on to do further specialist ‘serious
crime’ training. This includes courses on:• Supporting victims of racist crime• Sexual violence (separate courses for supporting male and female victims)• Domestic violence• Supporting people bereaved by homicide
There is a separate training programme for Witness Service volunteers.
VII. VOLUNTEER MANAGEMENT
Volunteers are selected by an interview with the local co-ordinator (service manager) and sometimes acommittee member. References are taken up and a Criminal Records Bureau check is undertaken to find out
whether the potential volunteer has any criminal convictions. Having a criminal record will not automaticallybar someone from volunteering for Victim Support – it depends on the nature of their record. Volunteers are
expected to attend for regular supervision with the local co-ordinator.
Victim Support volunteers can often do their work in the evening or at weekends, whereas Witness
Service volunteers must be available during the day. They are expected to work about one day per fortnight,
though many do more hours than this.
VIII. REFERRAL AND ALLOCATIONThe Victim’s Charter specifies we must contact referrals in 4 days. The local co-ordinator receives thereferrals by fax from the police each day and these are prioritised for contact either by letter and leaflet,
telephone call or a personal visit to the victim’s home by a volunteer. The proportion of victims receiving apersonal contact was 23.4% in 2001-02. The number of contacts varies according to type and seriousness ofoffence, ranging from on average one or two for burglary victims, to six or more for people bereaved byhomicide.
Police referrals contain varying levels of information. Sometimes this is sufficient to enable the priority
the referral is given to be determined. We should receive data including name, address, offence, ethnic origin,and whether or not they are a repeat victim. But these details are not always available. The co-ordinator willprioritise the referral according to these criteria. Elderly people, victims of hate crime and repeat victims
usually get priority. The proportion of victims receiving a personal contact is rather low at 23.4%. It is low
because we do not have the resources to speak to every victim, and some do not want contact. However,research suggests that even receiving a letter and one of our leaflets helps victims recover from the effects ofcrime, because it demonstrates that people care about them.
IX. THE VICTIM SUPPORT SERVICE MODEL
Victim Support provides information, practical help and emotional support to people who haveexperienced a crime, to witnesses, and to their families and friends. Our services are based on the principleof community involvement – for many people, the expression of concern by a fellow citizen can be very
helpful in repairing the harm done by crime. We try to ensure that our volunteers reflect the diversity of thecommunities in which they work. Our services are provided in the following ways:• We contact people by letter, ‘phone or visit. For some types of crime, such as when someone isbereaved by homicide, we make contact in a different way that reflects the particular sensitivity of thesituation.
• We will arrange for a trained volunteer to see people in their homes, at our local office, or sometimes atanother place that is safe and convenient for the person being supported.
• The volunteer will provide people with plenty of time and will listen while people talk about theirreactions to the crime. If it will help, the volunteer will give information about the wide range ofemotions that are normal following a crime.
• The volunteer will identify help and support that will most usefully meet the person’s needs andexpectations. If help is wanted that is beyond the scope of Victim Support, such as bereavement
counselling or re-housing, we will assist with finding that help.
• If practical help is needed, we will try to arrange it. Practical help can include applying for criminal
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claiming benefits, access to crime prevention advice, and a range of other services. People bereaved byhomicide may need our help with arranging a funeral, while others may need us to advocate on theirbehalf with other organisations such as the Criminal Injuries Compensation Authority or the local
housing department.
• We help people get information. This includes information about their rights, and if they have reported
the crime, with progress in the case.
• We can arrange support at court through the Witness Service, which operates in every criminal court
in England and Wales, and which is part of Victim Support.
• All our staff and volunteers are carefully selected, trained and supervised to help ensure that we
support people in a genuine and professional manner.
Emotions felt on being victimised include shock, anger, fear (about going out, or staying in, about being a
victim again, about encountering the offender, about other people’s reactions); the shattering of our normal
assumptions about life and other people, and sometimes guilt. It is important that people’s feelings arelistened to and acknowledged – friends and family often jump too quickly to giving advice and telling people to“put it behind you now”. VS volunteers are trained to listen, give the victim time to express their emotions,
without giving ill informed advice.
Advocacy can include pressing housing authorities to re-house, liaising with the police, writing a letter tothe Benefits Agency etc. Last year we helped about 20,000 people with criminal injuries compensation
claims, including helping victims with appeals.
Research shows that what victims are most frustrated by is the lack of information – about progress with
their case, about the court process, and progress with their claims.
The Victim Support service is not:• Counselling• Legal advice• Medical intervention
and we cannot normally make our service available when no criminal offence has taken place. However,in practice we do sometimes offer support when it is not certain that a crime has been committed. An
example of this is road death. 71% of Victim Support services offer help to people bereaved by road death.
That help has to be offered before it is known whether or not one of the drivers involved will be prosecuted.
The British Association for Counselling and Psychotherapy define counselling as being a process that“takes place when a counsellor sees a client in a private and confidential setting to explore a difficulty a clientis having, distress they may be experiencing, or perhaps their dissatisfaction with life or loss of a sense of
direction or purpose” (BACP, ‘Training and Careers in Counselling’, 2001). Counselling is beyond our remit
because we do not have the resources to offer it, nor the expertise to supervise staff or volunteers engaged inpractising counselling. However, all our volunteers are trained to use some counselling skills, particularly
active listening. Counselling has had a “bad press” in the UK in recent years. Nor do we offer psychologicaldebriefing.
We do not offer legal advice but we can sometimes help victims to access pro bono legal advice.
We do not usually provide a service where no crime has been committed, though in some circumstances
we might offer support if none is available from other agencies, for example to people bereaved by suicide.
X. LOCAL PARTNERSHIP WORKThe 1998 Crime and Disorder Act established local crime reduction partnerships. The Act specified that
all agencies are equal partners in reducing crime and the effects of crime.
Victim Support is involved, providing information of effects of local crime on victims and sometimes,
information about patterns of unreported crime. Partnership work offers opportunities to influence thepolicies of other local agencies and to improve the service offered to victims by helping organisations to work
together effectively and share information. It also enables us to reach out to the 50% of victims who do notreport the crimes they have suffered and who therefore are not referred to Victim Support by the police.

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XI. SERVICE EXAMPLE: RACIST CRIMEThe Stephen Lawrence enquiry report (1999) prompted the development of better services to victims ofracist crime. This includes:• Specialist training programme for volunteers working with racist crime• Third party reporting• Better partnership work in responding to victims’ needs
Stephen Lawrence was an eighteen year old black man who was murdered in 1993 by a group of racist
thugs while on his way to meet friends near his home in south London. The subsequent police investigation
failed to find sufficient evidence to secure convictions of those who were arrested and charged with hismurder. Such was the level of public concern that an enquiry into the police handling of the case wasestablished. It reported in 1999 and the results of the enquiry caused a scandal in the extent of theinstitutional racism in the criminal justice system that was revealed. The enquiry’s findings have prompted alarge scale programme of criminal justice reform which is still ongoing. Third party reporting enables people
who have been victims of racist crime to report at a location other than a police station if that is preferable tothem, for example at a Victim Support office or a local community centre.
The following example describes some work undertaken by the Victim Support Racist Incidents Officer inNorthampton, which is a large town in the English midlands. It illustrates how a local Victim Support Scheme
was able to help a victim of racist crime despite there being no criminal prosecution. The victim’s real nameis not Mrs Jones.
Mrs Jones worked full time and owned her house. For several months she had experienced regular minor
damage to her car. She thought this was strange because nobody else in her street had their car vandalised.
Sometimes she found that people had trampled and broken plants in her front garden, and sometimes rubbish bins
were emptied out all over it.
The problem of the damage to her car got so bad that friends and relatives felt anxious about visiting her, incase their cars were damaged too.
Mrs Jones, who is African-Caribbean, reported the incidents to the police on several occasions and they thought
it was racially motivated but could not catch the offenders. They referred her to Victim Support.
When the Victim Support volunteer came to see Mrs Jones she told the volunteer she had also received verbal
abuse in the street, with people shouting racist remarks. She said she did not take much notice because she had
put up with this sort of thing most of her life.
The volunteer involved the Victim Support Racist Incidents Officer, who contacted the police and the local
authority. A meeting was held and it was suggested to Mrs Jones that the police could install a surveillance camera
temporarily. Mrs Jones agreed and this was done. The police watched the video tape, and they were able to identify
the people damaging her car and garden. Using this evidence, the local authority began eviction proceedings
against the offenders, who were local authority tenants, and they left the area.
The harassment stopped. Despite the fact that the evidence was insufficient to bring about a prosecution, it did
enable the eviction of the offenders and this brought some peace at last for Mrs Jones.
XII. WITNESS SERVICE
The Witness Service is part of Victim Support and it offers:• Pre-trial visits to familiarise witnesses with the courtroom• Information about the court and legal process• Separate waiting areas with support available• Enhanced support for vulnerable and intimidated witnesses• Help after court if it is needed.
The police and the Crown Prosecution Service are responsible for informing victims of the progress of thecase, including the outcome of the trial if the victim has not remained in court to hear it. However, theWitness Service often gets involved in contacting the police and CPS on witnesses’ behalf to speed up theprocess of information giving.

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XIII. THE LEGAL CONTEXT AND VICTIM SUPPORT STRATEGY
The legal context: in English law, victims have no status in criminal proceedings and are not entitled torepresentation. They have no status in court unless they are witnesses. The presumption of defendant’s
innocence until proven guilty can unfortunately imply that the victim is lying. The adversarial legal processmeans witnesses are subject to attempts to discredit their evidence as lawyers fight it out between them inthe courtroom. Victims also have no right to challenge a Crown Prosecution Service decision not toprosecute. They can bring about a private prosecution though this is impractical in most instances due tocost. The parents of Stephen Lawrence brought a private prosecution of the young men who were acquittedof his murder, but it failed. It may be that the unsatisfactory position of victims in the English criminal justiceprocess is a factor that has prompted the development of such an extensive programme of support for victims
and witnesses.
The Victim’s Charter was first introduced in 1990, and updated in 1995. It is currently being revised
again. It places obligations on the criminal justice agencies to treat victims better, but currently, no statutory
means of enforcement exists so if agencies fail to meet their commitments, the most that can happen is that acomplaint can be made. The Charter may have statutory authority when it is revised later in 2003. Victim
Support is the only voluntary organisation that has obligations under the Victim’s Charter.
XIV. CURRENT AND FUTURE CHALLENGES FOR VICTIM SUPPORT• Ensuring consistent, higher standards of service provision• Maintaining a focus on victims amongst a wide range of criminal justice initiatives including
restorative justice• Pressing for adequate resources (of every £100 spent on the criminal justice system in the UK, only
£0.20 is spent on supporting victims and witnesses).
Victim Support welcomes the current effort to increase the provision of restorative justice, where this canbring real benefits to victims by them receiving a sincere apology, being able to tell the offender how they
have been affected, or when the offender can help restore at least some of what the victim has lost as a resultof the offence. However, sometimes victims are put under inappropriate pressure to be involved in
restorative justice activity which is primarily for the benefit of the offender or the criminal justice system, notfor the victim. Even when this does not happen, involvement in local restorative justice partnerships can be avery resource-consuming activity for Victim Support services.
We want to ensure more consistent standards of service provision, so that victims are entitled to abroadly similar level of service wherever they live.
Supporting victims of racist and homophobic attacks is a particular challenge, as they can be highly
traumatised but often do not report the crime. The British Crime Survey found that Asian people inparticular were most likely to be the victims of racist crime, but least likely to be satisfied with Victim
Support’s services. We want to recruit more volunteers from minority ethnic groups, publicise our services
more widely, and make more interpreters available.
The very limited extent of research about child victims suggests that they can be more affected by crimethan adults, and yet their needs are often unmet. We have recently secured funding from a corporate donor
to carry out research into their needs, and we are now devising a service model for helping victimised
children that we hope to pilot in 2003.
Implementing the new provisions for vulnerable and intimidated witnesses (I will say more about this in
the second paper) is a major challenge for us at this time. So too is the need to increase the number of nonpolice referrals, i.e. the 50% who don’t report the crime so that we can reach people who are afraid or see nopoint in reporting what has happened to them. We also need to ensure that service provision is based onreliable evidence of what is effective in supporting victims and witnesses.
A. Meeting the Challenges Ahead
We Aim to Achieve:• A more professional service, with 99

RESOURCE MATERIAL SERIES No.63• Improved training in dealing with the effects of serious crime, homicide, domestic violence, racist
crime etc.
• Continued development of the new ‘area’ structure to free up coordinators to manage and supervise
the volunteers• Performance measures• New inspection processes• Better policy and practice guidance.
To add to our training provision, National Occupational Standards for work with victims have beendeveloped in conjunction with the Community Justice National Training Organisation. They describe theskills staff must develop in order to work effectively in this area (known as ‘competencies’), and the standards
to be applied to the work. This helps staff and volunteers gain national vocational qualifications and can makevolunteering more attractive, as well as helping to drive up standards.
At the same time we are developing new performance measures so that we will be in a better position totell what is, and what is not effective in supporting victims; and we have established a Victim Support
inspectorate to monitor standards of service provision.
B. Looking to the Future
In the Future Victim Support will be:• Campaigning for a legislated, joined-up approach to victims• Developing services that are based more on what works, with better standards, and greater
consistency in service provision• Establishing our service to children, people bereaved by road death, vulnerable and intimidated
witnesses• Making services available to more people who don’t report crime.
Only 3% of victims come into contact with the criminal justice system. We want agencies dealing withhealth, housing, employment, insurance and compensation to work together better to meet the needs of theremaining 97% to ensure that the effects of crime are reduced instead of aggravated.
We will campaign for victims’ rights to be protected in legislation, and that these rights should be specific,
enforceable, and the responsibility of defined agencies.
We campaigned for a Commissioner for Victims of Crime to ensure that victims’ rights are addressed
throughout all public agencies. Provisions for a Commissioner have now been introduced but he or she will
have no statutory powers.
We are reviewing our own services to ensure that they are provided to better quality standards, are basedon sound knowledge of what is effective best practice, and are provided consistently across the country. Thismeans making services available to more people, such as children and those affected by road death, as well as
increasing the satisfaction of victims and witnesses with the service provided.
We want to reach more people who are victimised, especially those who do not report crime to the police.
The British Crime Survey consistently shows that only about half of all crime is reported to the police. Halfof all crime is not reported because people think it is too trivial, they feel that there is little the police can doabout it, they are ashamed of being victimised, or they mistrust the criminal justice system. We need to beless dependent on police referrals so that we can support those victims who don’t report. This involves
having more money available to advertise our services, evaluating our services, and achieving a higher public
profile.

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VISITING EXPERTS’ PAPERSVICTIM SUPPORT IN THE UK – VICTIM SUPPORT SERVICES IN DETAILPeter Dunn＊
I. INTRODUCTION
In this paper I will describe in more detail some of our services. In particular, the paper will address:• Post traumatic stress disorder and victimisation• What Victim Support provides to victims who want or need counselling• Support for victims during the police investigation of an offence• The UK system for criminal injuries compensation and our role in supporting victims’ applications forcompensation• Provisions for vulnerable and intimidated witnesses.
II. THE VICTIM SUPPORT SERVICE MODEL
We provide:• Emotional support• Practical help
• Information
We do not usually provide:• Legal advice• Counselling• Medical intervention.
It is worth taking some time to describe some of the emotions that are common for people who have been
recently victimised. These include shock, anger, fear (about going out, or staying in, about being a victim
again, about encountering the offender, about other people’s reactions); the shattering of our normal
assumptions about life and other people, and sometimes guilt. Guilt can arise if victims feel that they havesomehow contributed to the offence, and it can be a powerful emotion despite the fact that obviously, theoffender is the only person who is responsible for the offence they have committed. It is important thatpeople’s feelings are listened to and acknowledged – friends and family often jump too quickly to giving
advice and telling people to “put it behind you now”. VS volunteers are trained to listen, give the victim time
to express their emotions, without giving hasty advice.
Many victims need advocacy. This can include pressing housing authorities to re-house, liaising with thepolice, writing a letter to the Benefits Agency etc. Last year we helped 14,000 people with criminal injuries
compensation claims, including helping victims with appeals.
Research shows that what victims are usually most frustrated by in the criminal justice process is the lackof information – about progress with their case, about the court proceedings, and with progress if they aremaking a criminal injuries compensation claim.
III. POST TRAUMATIC STRESS DISORDER
I want to turn now to the subject of post traumatic stress disorder (PTSD). There is evidence that PTSD
can often follow an experience of victimisation, especially when the crime has had serious consequences forthe victim. It is important to remember that what might be a relatively trivial offence for one person can beserious and traumatic for another, so we should never assume that a particular crime is not serious because
we do not view it as serious from our own perspective. PTSD can follow from victimisation because crime
shatters our basic assumptions about life. We may feel that all our beliefs about other people being mainly＊

Head of Research and Development,
Victim Support National Office,United Kingdom

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good and altruistic no longer apply. This can make the person feel that nobody can be trusted, that life cannever be the same again, and that there is no longer any sense of security about our world. Research into
psychiatric disorder following victimisation has shown that:• 1 in 4 crime victims met lifetime criteria for diagnosis of PTSD (1993 study)• In a 2000 study, 60% – 95% of victims met criteria for psychiatric disorder.
This can be particularly acute for people who have been bereaved by homicide. For them, the legal
process following homicide interferes with their grieving process. They may not be able to persuade thecoroner to release the body at an early stage, and multiple post-mortems may be requested. Many people
find that they cannot begin to recover until the offender has been convicted, and this can take a year or more.
The court process is experienced by many victims of serious crime as re-victimising, causing what is termed
secondary victimisation – especially when their role and the importance of the deceased to them is ignored in
the criminal justice process.
Some of the basic assumptions that most of us hold, and which victimisation shatters, include:• A sense of invulnerability – although people realise crime happens, it happens to other people• The world is controllable, predictable and meaningful – serious crime is unpredictable and often
senseless• We all have at least some sense of autonomy and positive self perception – crime can destroy this.
(Janoff-Bulman, R., ‘The Aftermath of Victimisation’ 1985).
“For people bereaved through homicide, the event is so momentous that time becomes defined in relation
to the traumatic loss (anniversaries, birthdays etc.) and the perpetrator is often a trusted family member”.
(Resnick et al (1993) quoted in Mezey, G., ‘Family Responses to Traumatic Bereavement Following Murder’,2000). In Mezey’s study, she estimated that 1 in 10 victims met the criteria for current diagnosis of PTSD.
Mezey studied 41 relatives of murder victims and 17 victims of serious assault. Between 60 and 95 per centof the victims scored in a range on psychiatric questionnaires that normally differentiates psychiatric patientsfrom those with no diagnosed psychiatric disorder, and “in particular, high rates of post traumatic stressdisorder were identified”. 37% of relatives of murder victims had commenced psychotropic medication since
the murder and 27% had given up work.
There is still controversy about what exactly constitutes PTSD.
Research demonstrates that emotional support reduces psychiatric distress after a traumatic event, andthat non-judgemental, empathetic listening helps people bereaved by homicide; while ventilating anger, grief
etc. reduces the intensity of psychological distress. When effective emotional support is made available topeople who have experienced a traumatic event, they are less likely to go on to develop symptoms of
psychiatric disorder.
Non-judgemental, empathetic listening includes not making judgements about whether or not the person
deserved to be a victim or somehow contributed to the offence. This is important to the recovery ofsurviving loved-ones. Media reporting of murder almost always contains judgements about the guilt or
innocence of the victim. For example when an ‘innocent’ child is killed, the reporter’s outrage is boundless,whereas if a prostitute is killed, the story is less newsworthy and peppered with references to the victim’s
bad lifestyle, as if they somehow deserved to be murdered. Empathy involves being able to listen to thevictim and hear what they are saying from the victim’s perspective rather than from one’s own, inevitably
different view. It is about getting alongside the victim and suspending personal judgement and it is in theseskills that Victim Support volunteers are trained.
Victims of serious crime are often under pressure to put the event behind them and get on with life. Thiscan make people feel that they must present a calm image and not get upset. Suppressing feelings of grief
can predispose people to psychological distress later.
Victim Support’s experience in the UK is that mental health professionals tend to underestimate theimpact of crime. That impact is often greater when crime is involved because of the intent of the offender tocause harm to the victim, which is often accompanied by a fear of it happening again and a loss of trust or
belief in other people.
For victims who may be suffering from PTSD or at risk of developing it, we offer:
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VISITING EXPERTS’ PAPERS• Emotional support, practical help and information• Volunteers trained and selected to cope with the strong feelings expressed• Liaison with health professionals if the victim consents• Access to specialist help (through organisations such as Support After Murder and Manslaughter etc);
and referral takes place in line with the service model that I have already described.
We cannot approach health professionals about individual victims unless the victim consents. Some
Victim Support services have arranged for volunteers to be based in hospital Accident and Emergency
departments, with mixed success. We also produce information materials for health professionals to counterthe tendency for the impact of crime to be underestimated.
We help victims consider other sources of specialist help, e.g.
• SAMM (Support After Murder and Manslaughter) offer self-help groups and telephone support frompeople who have had similar experiences• Compassionate Friends for support and local groups• CRUSE for bereavement counselling• Childhood Bereavement Project for bereaved children• Child Victims Trust for bereaved children• RoadPeace for people seriously injured or bereaved in road crashes. They offer a telephone support
service and a network of local self-help groups.
IV. SUPPORT AND THE USE OF COUNSELLING SKILLS
I have been asked to describe in this paper how Victim Support provides counselling to victims. Firstly,
we need a definition of counselling. The British Association of Counselling and Psychotherapy defines
counselling as a process “that takes place when a counsellor sees a client in a private and confidential setting
to explore a difficulty a client is having, distress they may be experiencing, or perhaps their dissatisfaction
with life or loss of a sense of direction or purpose.”Counselling tends to be beyond the remit of Victim Support because:• It usually involves a long term programme of work that Victim Support does not have the required
level of financial or human resources to offer• There is some evidence that badly conducted counselling can make the problem worse. Counsellors
therefore must be rigorously supervised by other counsellors, and we do not have the resources to do
this• Counselling often needs to address other issues in the person’s past which are not necessarily related
to their experience of crime.
Victim Support volunteer training teaches some counselling skills, such as active listening. This involves
listening to the person and then feeding back what they have said, to demonstrate that they have been heard
and understood. Active listening can be very affirming and helpful for victims, many of whom feel they are
not listened to by criminal justice agencies. But using counselling skills does not mean that counselling isoffered. We also involve volunteers who are counselling students but again, this is to offer support not toprovide counselling. Victims who want counselling are usually referred on to their doctor, or to specialist
counselling organisations such as CRUSE Bereavement Care. But there are often long waiting lists forcounselling (up to six months is common) so it is important that we provide support in the meantime.
by:

The Victim Support role with victims who are still involved in the police investigation is limited. We help

• Accompanying the victim to the police station, if they want this• Helping the victim access information about the progress of the case, or to supply evidence inconnection with criminal injuries compensation claims• Working with police Family Liaison Officers• Supporting the victim through restorative justice interventions.
The Victim Support role in supporting victims through the police investigation is often, in practice, very
limited because:• 97% of victims are referred to us by the police and by then they may have already made a statement

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RESOURCE MATERIAL SERIES No.63• They are more likely to need our help in getting information from the police about the progress of thecase. It is important that we help victims gain such information – particularly when it might be bad news
for the victim who will need informing sensitively and may need support afterwards; for example if theoffender who assaulted them, who they may fear, has been given bail.
• Family Liaison Officers are used by all police services in England and Wales. Their role is to provide alink between the partner or family of someone bereaved by homicide and the police. They are speciallytrained to offer support and give information with a high level of sensitivity. However, they are also partof the police investigation (and they may be investigating the family they are dealing with) so their rolein giving support is limited. Victim Support works closely with FLOs. We, and SAMM, contribute totheir training.
• Victim Support works with victims who, following the arrest of an offender, are invited to take part inrestorative justice interventions such as restorative conferences and reparation under the provisions of
reparation orders (see the 1998 Crime and Disorder Act, and the 1999 Youth Justice and Criminal
Evidence Act).
V. CRIMINAL INJURIES COMPENSATIONThe UK Criminal Injuries Compensation Scheme for victims of violent crime was established in 1964, andrevised in 1979, 1994, and 1996. It was replaced by a new scheme in 2001. The original 1964 scheme was
non-statutory and based on ‘common law’ – the award was assessed on the personal circumstances of thevictim. It did not compensate where injuries were sustained within a family (e.g. in cases of domestic
violence). It was for ‘innocent victims’, i.e. those who could show they had not in any way contributed to theoffence of violence that they had suffered. Establishing the scheme on a non-statutory basis meant thatproviding compensation was within the ‘gift’ of the government at the time. It could be withdrawn at will,
without the need for discussion in Parliament, perhaps in the event of economic recession or if for somereason it became less imperative to help victims. Making common law awards meant that the amount ofcompensation awarded was based on individual considerations, on a similar basis to how compensation isawarded in civil proceedings. ‘Common law’ refers to a set of established precedents not written down instatute and it is a concept that appears in other aspects of English law. For example, murder is a common law
offence. Common law awards meant that, for example, a concert pianist with a hand injury would receive
more compensation than a bank clerk with a similar injury. Awards were made available only to ‘innocent
victims’ (for example, those who had not struck the first blow), who had reported the crime to the police, andwho had no criminal convictions. Most of these principles remain in force today under the existing 2001
scheme.
There have been four major revisions of the CIC scheme:• 1979 – injuries sustained in a family setting were included, and time limits were introduced• 1994 – the first tariff scheme was introduced• 1996 – the statutory scheme was established under the 1995 Criminal Injuries Compensation Act• 2001 – the current scheme established, with a10% increase in tariff levels, and the introduction of
bereavement awards for same sex partners.
In 1979 victims of domestic violence and children who had experienced sexual or physical abuse fromfamily members became eligible for awards. Time limits were introduced, possibly to restrict the growing
cost of the scheme arising from increased public awareness of it and the inclusion of more categories of
eligibility.
In 1994 the tariff was introduced. Fixed payments were made according to the nature of the injury, butmany felt that the awards were much less generous than in the previous scheme. The period in which to
apply was reduced from three years to one year after the offence. The tariff scheme was introduced to reduce
costs and reduce the time taken for awards to be made. The tariff enabled junior officials to determine levelsof awards, instead of this process being undertaken by (more expensive) Board members. It was possible forclaims to be re-opened in certain circumstances, such as where injury had resulted in significant deteriorationin health at a later date.
In 1996 the scheme became statutory for the first time. This followed a judicial review of the introductionof the 1994 scheme, which was held to be unlawful because it was not established in statute. The Criminal

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Injuries Compensation Authority replaced the earlier Board and an independent Criminal Injuries
Compensation Appeals Panel was created.
In 2001 the current scheme was established. Awards can be increased if victims of sexual offence candemonstrate they contracted AIDS as a result of the offence. An increase in awards for victims of child sexual
abuse was also put in place.
A. Why was the CIC Introduced?
During the 1960’s a more ‘liberal’ treatment of offenders had emerged, so there was also pressure for the
better treatment of victims. There was also more awareness of the state’s duty to victims and possibly, a
realisation of the need to obtain and keep victims’ engagement in legal processes. After Victim Support wasestablished in 1974, there was further pressure for a statutory scheme. The acceptance of more ‘liberal’treatment of offenders resulted in a range of provision, during this period, for early release of prisoners on
licence, more community sentences as alternatives to prison, the introduction of legal aid for defendants etc.
There was a need to ‘tip the scales’ back in favour of the victim, whose interests were seen as being left
behind in attempts to treat offenders better. The state was seen as having a responsibility on behalf of thecommunity to help people innocently hurt through crime. There was also recognition that the state had aninterest in helping victims who could easily become disillusioned with the criminal justice system andtherefore withdraw their co-operation with it, which would result in failure to report crime, reluctance to give
evidence, and pressure for the harsher treatment of offenders.
During the 1970’s and 1980’s, victims’ organisations such as Victim Support argued strongly for betterhelp for victims, including a properly established compensation scheme. A 1978 House of Commons debate
on the scheme was prompted by the murder of a Member of Parliament’s daughter, and this event may wellhave been instrumental in prompting the 1979 amendments to the scheme.
A 1992 Victim Support working party on criminal injuries compensation concluded that statecompensation must continue to be available to victims of violent crime based on arguments of “human dignity,
on equity (including the obligation to make public expenditure towards the victim not totally disproportionate
to what is spent on the apprehension, conviction and punishment of the offender) on social justice (theresponsibility of society to care for its least fortunate members) and on the basic human right to some form ofrecognition and reparation”. The working party also stated why victims of violent crime merit suchcompensation that is not awarded to victims of accidents or natural disasters: “suffering caused by adeliberate criminal act of another human being is on that account alone likely to be particularly distressing
and personally damaging [and] an element in that distress is a sense of being let down by society as a whole”.
B. Why Should the State Only Compensate Victims of Violent Crime?
Part of the reason for the Scheme not becoming statutory until 1996 was that arguments about who thestate should compensate, and how, were so difficult to resolve. There was a strong argument that if the statecompensates victims of violent crime, then it should compensate victims of all crime but the cost of thiswould be prohibitive. Other considerations included questions about whether the state should also provide
compensation to people born with disabilities, those with serious illness, and people injured in accidents.
In 1990, the British Government ratified the 1990 European Convention on Victims of Violent Crimes
which called for compensation that would cover “at least…loss of earnings, medical and hospitalisation
expenses and funeral expenses, as and regards dependants, loss of maintenance” and this probably provided
further impetus to place the scheme on a statutory basis.
C. Conditions for an Award
The current CIC scheme is for victims of violent crime, but violence is not defined. The following
conditions must be met for an award to be made:• The crime must be reported promptly• The victim must not be in any way culpable for the offence• The victim must co-operate with the police• The victim can have no significant unspent convictions.
Violence usually involves a physical attack on the person, but it can also include arson, poisoning, andsometimes threats. It only includes road traffic incidents where it can be shown that the driver collided with

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the victim with the intention of causing injury. Compensation can be for physical or mental injury (e.g. PTSD,
depression).
Awards will not be made if the crime is not reported to the police, but the offender does not need to becaught for an award to be made. The crime must be reported “without delay” unless there are special
circumstances. Applications for awards must be made within 2 years of the offence.
If the victim is seen as culpable in some way, an award will not be made (e.g. if the injury was sustained ina fight and the victim punched the offender first). Culpability can be assumed if the victim was drunk or on
drugs at the time. I suggest this is unjust because some offenders use intoxication as a mitigating factor but
for victims, this has the opposite effect!
Awards will not be made where the victim has not co-operated with the police or courts.
Awards can be reduced or withheld if the victim has unspent criminal convictions, depending on thenature of the convictions and the time that elapsed between the conviction and the injury. If the victim issentenced for a criminal offence after making an application, the award can be withheld or reduced.
The tariff contains 27 amounts ranging from £1,000 to £250,000. Death can result in an award of £11,000(or £5,500 to each close relative). Loss of earnings after 28 weeks is covered and victims can apply for thecost of ongoing care. The maximum possible award is £500,000 and children who have lost a parent can apply
for awards for “loss of parental services”.
D. Concerns about the Current CIC Scheme• The 1979 rule still applies and this means that people cannot claim compensation for offences
committed against them if they lived in the same household as the offender prior to 1979. This affects
victims of child sexual abuse in particular• Levels of awards were increased in 2001 and should be up rated annually in line with inflation• Victims have to establish their innocence. It is often difficult to demonstrate that they did not provoke
an attack, particularly if the attack took place in a bar. Similarly, awards can be withheld or reduced if
the victim was intoxicated. Awards can be withheld unless the victim of sexual offences candemonstrate they did not consent to sex (as opposed to it being an offence because they were too young
to engage in lawful sex with the offender)• Victims in receipt of state benefits find their benefits reduced if they receive an award of over £3,000
and withdrawn entirely if the award is over £8,000 until such time as they have spent the award on
subsistence• Having unspent convictions does not necessarily imply that the victim contributed to the offence. A
child can be denied compensation for the death of a parent if the parent had unspent convictions• The rule that claims must be made within two years of the offence, and that the offence must bereported promptly, often result in claims being refused. For example, the police often ask victims
reporting offences to go away and wait for a police officer to visit them. In cases where this has takenplace a few days later, the police have told the CICA that the offence was not reported promptly• The Criminal Injuries Compensation Authority has unfair advantage over appellants in hearings before
the Criminal Injuries Compensation Appeals Panel because they employ case officers to present theirevidence, and Legal Aid is not available to appellants.
E. Support Offered
CIC – the Victim Support role: part of the support we offer to victims of violent crime involves informing
them about the CIC scheme and helping them apply. We offer services at three levels:
Level 1 - minimum level of service • Every Scheme should consider whether victims of violent crime referred to them could potentiallymake a claim for CIC.
• Provide information about tariff scheme and copies of the correct, up-to-date application form, offer
help with filling in the forms.
• Provide the Guide to eligible victims of violent crime.
Level 2 – a higher level of service which involves • Handling the claim once the form has been sent off
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VISITING EXPERTS’ PAPERS• Keeping accurate up-to-date records on each application• Acting as correspondent• Explaining the initial decision and the review process• Helping with the application for review• Explaining the review decision• Providing information about the appeal process.
Level 3 – advocacy for victims whose claims are rejected • Preparing the papers for the appeal• Preparing the applicant for the hearing• Attending the hearing with the applicant as moral supporter• Acting as a representative at the hearing.
All victims ought to be offered support with their claims up to and including the appeal stage where
relevant. (except those to whom schemes are not required to provide the level 1 service because they haveno trained volunteers, etc).
The number of victims helped with CIC claims in 2001-2002 increased: we helped almost 14,000 people.
VI. VULNERABLE AND INTIMIDATED WITNESSES (VIWS)
The 1999 Youth Justice and Criminal Evidence Act introduced the concept of VIWs and ‘special
measures’• Witnesses may be vulnerable and/or intimidated due to personal characteristics or the nature of theoffence• Special measures are needed to safeguard them in legal proceedings or enable them to give effective
evidence.
(The 1999 Act also introduced Youth Offending Panels, which are now the principal means of providing
restorative justice interventions for young offenders.)
The Act provided for special measures that can be taken in court to help witnesses give evidence when,
without such measures, they would be either unwilling or unable to give satisfactory evidence. Special
measures can be needed as a result of personal characteristics, situational factors, or a combination of both.
The 1999 Act followed the publication of ‘Speaking up for Justice’, the report of a parliamentarycommission in 1998 which made 78 recommendations, most of which were enacted in the 1999 Act. The
commission was established following increased awareness of existing measures being inadequate, highattrition rates; and campaigning from groups representing victims, women, children and disabled people. The
Commission heard evidence from a wide range of organisations that support vulnerable people, and from
Victim Support which had campaigned on these issues for years.
There were already some provisions for supporting vulnerable witnesses, for example the 1988 Criminal
Justice Act established the admissibility of closed circuit television or video evidence with child witnesses,
and subsequent legislation had prevented people charged with rape from cross-examining their victims inperson. However, such measures were inadequate. For example, these did not help adults with learning
difficulties whose evidence was often ruled inadmissible because they were considered ‘incompetent
witnesses’. There was also concern about high attrition rates. This describes the situation where trials areabandoned because witnesses will not give evidence out of fear of reprisals, or anxiety at the prospect ofappearing in court.
A. The 1999 Act Established Definitions of Vulnerability• Situational factors:• Nature of offence (e.g. rape)• Dangerousness of the defendant• Relationship of witness to defendant• Racially/homophobic motivated offence• Witness and defendant living near each other.

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RESOURCE MATERIAL SERIES No.63(1) Nature of offence (e.g. rape) – there was an acceptance that some offences have such a harmful effecton the victim that if they are called to give evidence, they cannot be anything other than vulnerable asa result.
(2) The dangerousness of the defendant, or their associates, may cause the witness to be vulnerable; forexample, if the defendant has threatened the witness.
(3) Relationship of witness to defendant: there is a recognition that victims of domestic violence, forexample, may be vulnerable because they have previously been intimidated by the defendant and may
have to remain in contact with the defendant to facilitate contact with children, etc.
(4) Racially/homophobic motivated offences are often the culmination of series of incidents of harassment
or bullying. People who have been attacked for an aspect of themselves that they cannot change may
well be harmed much more significantly by the impact of the crime than those who are offended
against for other reasons not concerned with such personal aspects of the self.
(5) Where the witness and defendant live near each other there is a higher probability of the witness
feeling intimidated about giving their evidence.
B. Definitions of Vulnerability• Personal characteristics:• Age• Disability• Dependence• No previous experience of opinion being sought• Anxiety to please.
C. Special Measures• Use of screens• Giving evidence by CCTV link or with the help of an intermediary• Excluding people from the courtroom• Allowing video recording as evidence-in-chief• Pre-recorded video cross-examination• Removal of wigs and gowns;
And a presumption that special measures will be used for certain offences/witnesses.
Screens prevent the witness and the defendant from seeing each-other, without preventing eye
contact between the witness and the judge, jury and counsel.
(2)
Evidence can be given via CCTV link or with the help of an intermediary. Intermediaries are people
who have the required level of skills to communicate with the witness and the court. They can be used
to help witnesses who have communication disabilities or with very young children, who might nototherwise understand what is being asked of them. This is a very new area of provision which will
shortly be piloted.
(3)
The press and the public can be excluded from the court room if it can be shown that a more private
atmosphere will enable the witness to give their evidence more effectively.
(4)
Evidence recorded on video tape can be accepted where the witness cannot be expected to give theirevidence in court, as can –(5)Pre-recorded cross examination where it is felt that video recorded evidence must be ‘tested’.
(6)
If it is considered that a less formal atmosphere will help the witness give evidence, the judge canorder that wigs and gowns are removed to make the court feel more informal.
(1)

All these provisions are subject to challenge by defence solicitors. The Crown Prosecution Service
recommends what, if any, special measures are needed before the case comes to court. If defence counsel
wish to challenge the use of special measures, the judge decides which, if any, will be applied in that
individual case. For some offences, and some witnesses, there is a presumption that special measures will
apply – for example, with children and rape victims.
D. The Victim Support and Witness Service Role with VIWs
• Pre-trial visits• Sometimes acting as ‘preparer’ for young witnesses• Accompanying witness in the CCTV/video room
• Meeting the witness and providing a separate waiting area with support
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VISITING EXPERTS’ PAPERS• The provision of a ‘seamless’ service through Victim Support and the Witness Service. A good
example of this was during the trial of Dr Harold Shipman in 2001. Dr Shipman was convicted ofmurdering twelve of his patients, but was suspected of killing hundreds more. Victim Support provided
a programme of support to bereaved partners and relatives, bringing them to the court each day inminibuses, handing them over to their Witness Service colleagues, and bringing them home again at theend of the day.
Our service to vulnerable and intimidated witnesses began to develop almost as soon as the Witness
Service became established in the Crown Courts in the early 1990s:(1) All witnesses are contacted before their court date, provided we have been given advance notice ofthem by the police. They are then offered the opportunity to come to the court before they give
evidence, when the Witness Service volunteer will show them a court room, explain who sits where,
what the roles of the various people in court are, etc. The Witness Service will be told if the witness
is considered vulnerable or intimidated, and will then offer an enhanced level of service, for example
visiting children at home with their carers before the pre-trial visit.
(2) A ‘preparer’ will help the young person review their witness statement before they give evidence, sothey know what to say and what will be asked of them. The preparer is not the same person that will
support the witness on the day of the court appearance.
(3) In some courts, the Witness Service sits in the video room with the witness. In other courts, this is
the role of the court usher. The preferences of the resident judge, and the availability of ushers,
determine which approach is taken.
(4) The Witness Service can meet vulnerable or intimidated witnesses at the court entrance and takethem to a waiting room separate from where the defence witnesses wait.
(5) Victim Support can arrange to bring vulnerable and intimidated witnesses to court, and hand themover to the Witness Service. For legal reasons, a Victim Support volunteer cannot support the witness
in the court building.
E. Our Services for VIWs are Still Being EstablishedA number of difficult issues have emerged:• A need for agreements with the police, CPS etc. at a time when new data protection legislation andthe Human Rights Act 1999 are making public agencies very cautious about sharing information• The high level of judicial discretion which means practice varies from one court to another• Inadequate funding in advance of implementation (July 2002)• The physical characteristics of the court room
• Pressure from other agencies to undertake inappropriate work.
(1) Referral procedures for vulnerable and intimidated witnesses have had to be agreed with the Crown
Prosecution Service and the Court Service. Other agreements have had to be made, to strictly define
the roles of each agency and individual.
(2) These have been difficult because of data protection issues (the need not to divulge more confidential
information about the person than is required in order to deliver a service to them) and because of thevariability of practice from one court to another. For example, some judges want the Witness Service
to accompany witnesses in the CCTV room, others require the court usher to do this work.
(3) The special measures were implemented in July 2002 but at that time, the Home Office had not
specified which agency would undertake each role in supporting witnesses and Victim Support hadreceived no additional funding for this work. Witness Services came under pressure from their courts
to step in where no other agency was providing a service.
(4) Some courts have found it difficult to provide additional court entrances, separate waiting rooms etc
because of the physical characteristics of the court house, which are often old buildings in town centres,with little space around them for extension.
(5) In some areas the Witness Service has been under pressure to undertake work that is beyond ourremit. For example, transporting intimidated witnesses to court, which should be the role of thepolice.
VII. SUMMARY
In summary, this paper has addressed the following issues:• Work with people who suffer from PTSD
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RESOURCE MATERIAL SERIES No.63• Counselling for victims• Support for victims during police investigations• Criminal injuries compensation• Help for vulnerable and intimidated witnesses.

110123RD INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERSRESTORATIVE JUSTICE IN MINNESOTA AND THE USA:DEVELOPMENT AND CURRENT PRACTICE
Kay Pranis＊

I. DEFINITION
Restorative justice has emerged as a different framework for guiding responses to crime at all levels of
the criminal justice system. Howard Zehr identifies three concepts as pillars of this framework: 1)
Restorative justice focuses on harm. 2) Wrongs or harms result in obligations. 3) Restorative justicepromotes engagement or participation (Zehr, 2002). Restorative justice, then, encompasses responses tocrime that move toward understanding, acknowledging and repairing harm. Achieving understanding,acknowledgment and repair requires direct participation of victims, offenders and affected communities in theprocess of justice. Since harm is the central problem in a restorative framework, restorative justice requires
a response that does no deliberate further harm.
In the restorative framework mutual responsibility is the loom on which the fabric of community is woven.
Crime represents a failure of responsibility, clearly on the part of the offender and sometimes on the part ofthe larger community. Restorative justice aims to re-establish mutual responsibility.
Restorative justice focuses the response to crime on healing for all the wounds associated with the crime.
Consequently, any action that moves toward healing for anyone affected by a crime - victim, friends andfamily of the victim, affected community members, offender, offender’s family and friends – in a way that
consciously minimizes any further harm is restorative.
II. HISTORY – MINNESOTA
Restorative justice has ancient and widespread roots. Processes that focused on repair of harm andacknowledgement of wrongdoing were a part of most ancient cultures and are still practiced today among
many indigenous people around the world. Many of us use such practices in our families and social
communities. However, the formal justice system in Western societies in the late 20th century was not basedon the philosophy of restorative justice. Several streams of change have influenced and informed thecontemporary movement to shift the basis of the formal justice system to a restorative one. The feminist
movement raised questions about male models of justice that are rule-based but not sufficiently contextual or
caring. The victims’ movement illuminated the woeful lack of attention to victim needs and interests. The
shift in social work from a deficit orientation to a strengths orientation challenged basic assumptions in criminal
justice practices. The alternative dispute resolution movement in the legal field offered new models forworking through conflict. In the field of business the movement toward flattening hierarchies and empowering
workers marked a shift from relying on ‘power over’ for the desired ends to using ‘power with’. The
communitarian movement suggested that active community participation in decisions affecting community life
is an essential element of a healthy society. The growing movement for recognition of indigenous
understandings and ways of life has provided a conceptual framework of inter-relatedness and practical models
for community based responses to wrong-doing. The restorative justice framework is consistent with allthese streams of change and gains energy and insight from the work in those fields.
In the 1980’s restorative justice in the U.S. existed in a few small programmes doing victim offender
mediation. Those were generally operated by faith based groups working in partnership with local justiceagencies. Minnesota had two programmes in the 80’s – one operated by a private not-for-profit agency＊

Restorative Justice Planner,
Minnesota Department of Corrections,
U.S.A.

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RESOURCE MATERIAL SERIES No.63(Minnesota Citizens Council on Crime and Justice) and one within a county corrections agency. Other
programmes existed that were consistent with restorative values (restitution, respectful community service,
victim services) but they were not clearly articulated as restorative programmes based on a conscious
philosophy of healing as justice.
In 1989 a not-for-profit community agency doing work on justice issues in Minnesota began advocating
restorative justice as appropriate public policy. In 1990, in collaboration with St. Paul Area Council ofChurches, the Minnesota Citizens Council on Crime and Justice sponsored a statewide conference on
restorative justice. The idea was still very marginal and only attracted a small number of justice professionals.
However, in the early 90’s the Minnesota Department of Corrections created an ad hoc committee to study
restorative justice and determine whether the Department should take any action regarding restorative
justice. Minnesota had a history of innovative criminal justice policy, including the development of the firstcommunity corrections programme in the United States in the 1970’s. The interest in restorative justice was
not based on any particular problem or crisis but on an on-going interest in promoting progressive corrections
policy. In December of 1992 the ad hoc committee organized another statewide conference on restorative
justice. This conference attracted major leadership in corrections from across the state. The
recommendations from the conference discussions led to the creation of a position a year later at the
Department of Corrections dedicated to promoting restorative justice.
The Minnesota Department of Corrections had a national reputation for leadership in the field ofcorrections. Consequently, the creation of that position gave legitimacy across the U.S. to restorative justiceas a public interest, not just a private, faith-based interest.
Key characteristics of Minnesota’s approach:
1. The position of Restorative Justice Planner, though located within the Department of Corrections,
was created with a broad vision. The job description for this position specifically calls for working with law
enforcement, courts, social services, education and community groups – not just with corrections. The scopeof the job gave permission to invest time in fields other than corrections. The development of parallel
activities and interest in education, police and neighborhood organizations has created a powerful momentum
for the vision of restorative justice.
2. The position is fully focused on promoting and supporting change and does not involve operating a
programme or providing direct service.
3. The position was not accompanied by mandates. All the work of the Restorative Justice Initiative
involves voluntary participation by agencies and organizations. Because ownership and commitment are
critical elements of a restorative approach, mandates could undermine the fundamental values.
4. While the vision of the position is clear, there has been a great deal of strategic freedom which has
allowed the restorative justice initiative to respond to unexpected opportunities. There has not been a fixedplan of action nor emphasis on particular outcomes. Flexibility in the pathway has contributed enormously tothe success of the proliferation of efforts outside of corrections.
5. The Restorative Justice Initiative does not rely on positional authority but relational influence. Staff
promote system and community wide change, without the use of formal authority or statutory power, byengaging all stakeholders in a voluntary, respectful process of examining an alternative vision and allowing
local control over the decisions to make change, the specific path of change and the pace of change.
The work of promoting restorative justice in Minnesota began with public education to any interested
group – probation officers, lawyers, police officers, civic groups, church groups, college students. Initiallypublic education was conducted primarily through public speaking and dissemination of written materials.
Later the availability of videos and websites added helpful tools. Early, positive coverage in newspaper
stories helped spread the message of restorative justice to the general public.
The emphasis of the public education was on the philosophical framework, the value structure, rather
than specific implementation strategies. The assumption of this approach was that the philosophy is thefoundation and that within that philosophy there might be many different ways to develop practices. Each112

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VISITING EXPERTS’ PAPERS
community has to determine how to put those values into practice to fit its unique circumstances.
Knowledge of the underlying philosophy is essential to being able to respond to changing circumstances.
Public education is generally done in an interactive format using questions posed to the audience to elicit,
from their own life experience and common sense, the basic ideas of restorative justice (Pranis, 1998). The
following questions are used:• What are the forces shaping our behavior such that most people do the right thing most of the time?
Which of those forces are the most powerful?
• When you have been victimized or unfairly treated, what were your feelings and what did you need?
• If we had a good process in the community to resolve conflict and harm what would we want to be thecharacteristics of that process?
My experience in conducting that exercise with a variety of audiences (lawyers to inmates to churchgroups) is that every group produces the same basic list for each question and the answers are consistent
with restorative values. That experience gives me confidence that the public has a natural understanding ofand support for restorative justice.
Wherever people responded to information with interest and a desire to develop local programmes orpractices, the Department of Corrections staff helped to organize and facilitate local planning groups to leadchange toward a restorative vision. Change was based on voluntary participation by both professionals andcommunity members. No legislation was enacted to enable restorative approaches. The specific practices
were assumed to be legal under existing statutes because, although they were not mentioned in statute, theyin no way violated those statutes.
The major existing restorative practice in 1994 when the position began was victim offender mediation.
But probation officers, based on restorative values, began to identify other ways to move toward restorative
goals, including:•putting more emphasis on restitution,•
designing community service that involved offenders in work valued by the community,•
providing opportunities for victim input into community service assignments,•
finding for more ways to involve community members and•providing more information to victims about offender compliance with conditions of probation.
One probation office designed a community intervention process with offenders based on a widely usedchemical dependency intervention model. Community members sit with the offender and discuss how his
behavior affects everyone and what is needed to get him and the community back on track.
Later in 1994 a visitor from Australia introduced family group conferencing to Minnesota and in 1995
several police departments established family group conferencing as police diversion programmes for youth.
In 1995 circle sentencing was introduced from Canada and in 1996 the first community based circle
sentencing project working with both juveniles and adults was established. In 1996 the Vermont reparative
board model was introduced and a neighborhood of Minneapolis established a neighborhood board programme
to address quality of life offenses (vandalism, soliciting prostitutes, public urination, low level drug
possession) committed by adults.
Rural communities, suburban communities and inner city neighborhoods have designed and implemented
various adaptations of victim offender mediation, group conferencing, reparative boards and peacemaking
circles as programmes working in partnership with the justice system. In some jurisdictions the justicesystem itself has worked to infuse restorative justice principles throughout the work of the organization. In
Minnesota prisons interested staff have found ways to incorporate restorative principles into the function of
the prison.
The Restorative Justice Initiative of the MN DOC has worked closely with individual citizens, community
groups and professionals in the system to nurture the growth of restorative justice.

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III. WHAT ARE THE PRACTICES? WHAT DOES RESTORATIVE JUSTICE LOOK LIKE ON
THE GROUND?
An eighty-year-old woman, disturbed by noises in the middle of the night, discovered a masked man
wielding a crow bar attempting to force his way into her house. She called the police and they found theperpetrator nearby. The victim accepted the opportunity to meet face to face with the young man, who had
pled guilty to the offense, to tell him how the crime had affected her life and to participate in deciding how heshould make amends. The offender also agreed to participate. A trained facilitator met with both parties
separately to hear their stories and explain the process. When the parties came together the elderly woman
described the emotional trauma which was heightened by the recent loss of her husband. The offender
apologized and agreed to pay the costs of an alarm system for her as well as the cost of replacing the door.
He promised the woman that he would not do it again. Some months later the woman read in the local paperthat the same young man had burglarized a local business. She called the facilitator and asked to meet withthe young man again. She was very upset that the young man had not kept his word to her. With sometrepidation the young man agreed to meet with her. At their second meeting the elderly woman repeatedagain and again, “How am I going to know you won’t do this again?? How am I going to know you won’t dothis again? How am I going to know you won’t do this again?” Finally, they agreed that he would call her on
the phone every week to reassure her that he was not getting into trouble. Two years later he was still crime
free since that incident – the longest time he had gone without committing a new offense.
A sample of images of restorative justice in action:• With the support of a community circle, a young man, who stole his father’s credit card and charged
over $1,000 in goods, apologizes to his father, turns over his federal and state income tax refunds to his
dad and does community service at a local church. His dad says, “I got my son back.”• Inmates from a woman’s prison help build a Habitat for Humanity home for a family.
•
A young woman who stopped dancing for years after a traumatic rape rises from her chair and dances
gracefully around the room after a face to face meeting with the perpetrator.
• Under the guidance of a community circle and local probation, a dozen adolescents do home repairs
worth $12,000 on a house they vandalized. The victim stops by to observe their work and they sharethe excitement of their accomplishments with him.
• A woman in her 70’s, whose daughter was raped and murdered over twenty years ago, travels
hundreds of miles to speak to groups of inmates in adult and juvenile prisons and offers hope that they
can change.
• Women inmates listen to a panel of adolescents describe the impact on their lives of having Mom in
prison.
• After sharing stories of pain, connecting to one another and to a sense of common fate, neighborhood
residents become involved in establishing a transitional house for sex offenders in their neighborhoodand defend it from an attempt by the city to close it.
• Surviving family members of a victim provide input at a parole hearing, express their concerns andare provided with support that was not available at the time of the crime many years earlier.
• A suburban financial consultant, arrested for soliciting a prostitute in an inner city neighborhood,meets with neighborhood residents to discuss the impact of his behavior and then provides service tothe neighborhood by conducting financial classes and counseling for inner city residents. He continues
to offer free classes after his required community service hours are completed.
• The stepfather of two juveniles arrested for attacking him discloses for the first time to the mediator
his own childhood sexual victimization after a victim offender mediation session reveals that theadolescents’ behavior was triggered by memories of earlier victimization by their biological father.
Because restorative justice is a philosophy to guide all activities in response to crime, it is not a fixed setof practices. However, there are several practices that have emerged under this philosophy that exemplify
the philosophy and are often the core of efforts to build a more restorative system. The practices which bringvictims and offenders or victims, offenders and community members together in a facilitated dialogue todetermine what is needed to repair the harm and build a better future are those generally associated withrestorative justice. Many other practices, by working with just offenders or just victims, also work toward
the vision of restorative justice by supporting victims, involving offenders in repairing harm, increasing
offender awareness of responsibility or other restorative goals but may not involve a face to face dialogue
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A. Face to Face Restorative Practices - Various Models (Pranis, 2003)
Victim offender dialogue/mediation/conferences. The classic victim-offender mediation model involves a
victim and an offender meeting in a facilitated process in which each party has the opportunity to talk about
what happened and ask questions. Emotions are allowed to be expressed within a respectful atmosphere.
Most mediations result in a consensus agreement about activities the offender will undertake to meet theneeds or expectations of the victim.
Restorative group conferences. This model is based on the family group conference introduced in the U.S.
in 1994 from Australia. It is an adaptation of a traditional Maori process for resolving community problems.
In this process the victim, victim supporters, offender, offender supporters and a facilitator engage in a
dialogue to explore what happened, how each of them has been affected, and what needs to happen to makethings as right as possible. The facilitator may use a script to guide the dialogue. Every participant has anopportunity to speak to the issues and the agreement. Expressing emotions is encouraged. Again,
agreements about the obligations for the offender are by consensus of all participants.
Peacemaking circles. Based on American Indian talking circles, the peacemaking circle process involves
the victim, victim supporters, offender, offender supporters and interested community members in a
structured dialogue about what happened, why it happened, what the impact is, and what is needed to repair
the harm and prevent it from happening again. Participants sit in a circle without tables or other furniture.
An object, called a talking piece, circulates in order among participants who speak only when they are holding
the talking piece. The use of the talking piece reduces the role of the facilitator and eliminates cross-talk orinterruptions because the talking piece designates who may speak while all others listen. The process may
involve separate circles for the victim and offender before all parties are brought together to determine anaction plan to address the issues raised in the process. By consensus the circle may develop the sentence forthe offender and may also stipulate responsibilities of community members and justice officials as part of theagreement.
Community boards or panels. In this model a small number of trained community members meet with an
offender to talk about what happened, how it has affected the victim and the community and to determine
activities to be undertaken by the offender to address restorative goals. Some panels involve victims, others
get input from the victim.
These models are relatively fluid and are continuously being adapted to meet particular circumstances or
to take advantage of a technique learned from another model. Some restorative group conferencing models
include community members who were not directly attached to the event. Some victim offender mediation
sessions encourage participants to bring supporters and allow them to speak at some point in the process.
Some group conferencing programmes use a talking piece for the agreement phase of the process but not forother phases.
All of these processes require admission by the offender of the charge or some portion of the charge.
Victim participation is always voluntary and offender participation is typically voluntary or represents somelevel of willingness relative to other options. These processes can be used for hearing victims’ stories andfor determining obligations of offenders at many different points of the justice system: informal diversion,formal diversion, post-charge-pre-adjudication, and post adjudication as part of the sentence. The
peacemaking circle process can be used for the adjudication itself as a sentencing circle. In the United States
referral to a restorative process by the justice system is optional.
There is great variety among states and localities in the implementation process and choice of models. In
some states a model may be relatively standardized and in others each group or community designs its own
unique approach consistent with the philosophy of restorative justice. In Vermont community boards,
initiated by the state Department of Corrections, are in every county and the model is similar throughout thestate. In Colorado a common group conferencing model is used in many communities around the state, buteach programme is locally initiated.
In Minnesota programmes have developed from grass roots organizing around the philosophy and varyconsiderably in the specifics of implementation. These face-to-face programmes have been initiated by awide variety of people – probation officers, judges, prosecutors, community activists, victims, police, faith115

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communities, non-profits. Local restorative justice programmes have been initiated in many different ways.
Here are a few examples:
1. Example 1: Victim/Citizen Initiated Partnership with the Justice System
A single man living in an older, middle class suburban neighborhood returned home from a birthday
celebration to find his home in a shambles - food stuffs from the refrigerator on the floor and walls, every
mirror and light fixture broken, a stereo stolen - a mess. When informed that the perpetrators wereneighborhood kids, he was alarmed to realize he didn’t know them and resolved to be involved in working
with them. He was initially rebuffed by the prosecutor’s office which informed him that they were interested
in “consistency, not creativity.” Subsequently, the case was moved to the Community Corrections
Department, who referred it to the victim offender meeting programme and the victim got an opportunity tomeet with and then work with the juveniles.
As a result of his experience he became very interested in the broad scope of restorative justice anddecided that his community needed to be involved.
He began dialogue with key leaders in the schools, churches, community corrections, city government,
the judiciary and police. He convened those interested and began the process of education and reflection on
restorative justice, a vision for their community and possible steps toward that vision. Because of his life
long interest in and commitment to young people, students were recruited to participate and have been an
integral component of the group.
Members of the group arranged speaking engagements at various churches to raise awareness in thelarger community. They recruited volunteers to become trained as facilitators for family group conferencing.
A small grant was obtained to support efforts to apply restorative justice in the schools.
The group continually assessed its membership and sought to add missing voices or perspectives. The
group often opened meetings with discussion of an object brought by one of the members as a metaphor forjustice. This reflective activity has been useful for keeping the group connected to its underlying values andpurpose.
The formation of the group was initiated by a citizen. The Community Corrections Department has
provided staff support for some of the activities because of its mission to involve community and develop
restorative approaches.
About six months after the group was organized the Community Corrections Department approached thegroup to explore their interest in trying the peacemaking circle process for a case from their community.
The Council said, “yes.” The Dakota County Community Corrections Department in collaboration with the
DOC Restorative Justice Initiative facilitated training and technical assistance for the Council as they
proceeded with the case. Again students participated in all stages of the process, including students who
have been in trouble.
In the planning stage for a second case handled by the Council, involving several juveniles and multiple
victims, conflict arose among various participants of the Council. The relationship between justice systemprofessionals and other community members is not an easy one. A healing circle was held at the completionof that case to work through the conflict and try to learn from one another.
Because of the work of the Council, the local school district created a staff position to develop wider useof restorative planning for behavior problems in the schools. The police department has become more
responsive to the use of restorative processes as a result of the Council work.
Council meetings are open to all interested persons. Decisions are made by consensus of those inattendance. The Council has struggled in its relationship with the prosecutor’s office. Originally, the local
police department sent cases for diversion directly to the Council. Later the police agreed to send all cases
through the prosecutor’s office which would then decide whether to send it to the Council. That change
resulted in a dramatic reduction in cases coming to the Council. Some Council members felt that there was asignificant loss of local control in that shift and that it undermined an important principle of restorative justiceregarding community empowerment.
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2. Example 2: Programme Initiated by the Police Spreads to Other Parts of the Community
A police department in a suburban community decided to try family group conferencing because they
were so frustrated by the lack of significant consequences in the juvenile cases they were sending to thecounty attorney’s office to be prosecuted. A veteran officer of the department attended training and was very
skeptical of the process. Nevertheless, he tried the process and found it to be so impactful, especially forvictims, that he began to use it for nearly all juvenile offenses asserting, “In 25 years of policing, I’ve neverfound anything this effective”. He later became a trainer in family group conferencing and a national leader in
restorative justice. He continually improved and expanded the programme, using it for offenders withmultiple offenses and felony-level offenses. He worked with the local school district, encouraging them touse group conferencing as a school discipline strategy. Later he introduced peacemaking circles to thecommunity and began referring some cases to peacemaking circles. After several years of success within thepolice department he organized a community justice council to involve community members in a partnershipwith the police department to manage restorative efforts in the community.
3. Example 3: Programme Initiated by a Coalition
In a Minneapolis inner city neighborhood a City Council member, Hennepin County probation officers andthe neighborhood organization worked together to establish a reparative panel programme to address low
level quality of life crimes in the neighborhood. A grant from a supportive state agency funded an extensiveplanning process involving key stakeholders in designing a programme for their neighborhood. They
researched various models and chose the reparative panel model from Vermont in which community
volunteers meet with offenders to discuss the crime and determine what the offender will do to make amends
to the neighborhood. An Advisory Board of stakeholder representatives provides on-going guidance to theprogramme.
In addition to the use of these face-to-face processes at the front end of the system, all of these processes
can be used when an offender is returning to the community after serving a period of incarceration.
Reintegration into the community is always a critical time for the community and the offender and is often adifficult time for the victim as well. These processes allow an opportunity for dialogue about fears, concernsand hopes, provide input into conditions which might be a part of the release plan, and can develop support
plans to maximize the possibility of successful re-entry so that new victims are not created.
B. Non Face-to-Face Restorative Practices
In many cases it will not be appropriate or feasible to have a face-to-face meeting between the victim andoffender. However, efforts toward the goals of repairing harm to the victim, offender and community andencouraging offenders to take responsibility are still possible and are clearly within the restorative vision.
These practices often involve working just with the victim or with the offender. Additionally, not all harm canbe repaired by offenders alone. Often community or government resources are needed in addition to offenderefforts, so offenders may not be involved at all in some restorative practices that serve victims’ needs, suchas victim reparation funds provided by government or victim support activities provided by the community.
Victim services provide information and support to victims, acknowledging the harm the victim has
experienced and reconnecting the victim to the community. Victim reparation funds help repair the financial
harm to victims. Community support for victims – One of the primary responsibilities of the community in therestorative framework is to rally around victims. In Billings, Montana, a Jewish family was the victim of ahate crime. Someone threw a brick through their living room window and painted swastikas on the house. A
neighbor hung a Star of David (a symbol of the Jewish faith) in their window as a sign of support for the family.
Subsequently, the Billings newspaper printed a half-page Star of David and people all over the city cut out theStar of David from the paper and hung it in their windows to support the family. The offender was nevercaught but the community sent a clear message of support for the victim and the behavior stopped.
Community service, if designed to be work that is valued by the community, gives the offender a sense ofaccomplishment and involves the offender in repairing harm to the community. Creative community service
projects involving inmates in institutions have given them a way to repair harm to the community whilelocked up. Restitution involves the offender in direct repair of the harm to the victim. Apologies and apology
letters are restorative if they are sincere and clearly take responsibility for the harm done. They help repair
harm by restoring a sense of what is right and wrong and affirming that the victim is not responsible for thehurt or loss. As in any restorative practice the victim has a choice about whether to receive an apology.

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Several restorative practices bring victims and offenders together, but not the victims and offenders of thesame incident, so they are not face-to-face in the same sense as the practices described above. Victim impact
classes or panels for offenders on probation or in prison increase offender understanding of the impact of their
behavior, an important component of taking responsibility. These classes or panels also provide an
opportunity for victims to tell their story, an important part of the healing process for many victims. Victim
offender groups - generally involving victims and offenders impacted by serious crimes and meeting weeklyfor 10 – 12 weeks in a prison - provide opportunities for offenders to learn about the impact of victimization inan even deeper way than the impact classes. Similarly, they provide victims with an opportunity to share
their story in a more personal process. Citizens, Victims & Offenders Restoring Justice Project, a pilot
programme in a Minnesota prison, brought together surviving family members of murder victims, inmatesserving time for murder or manslaughter and citizens to share the anger, pain and grief that resulted from
criminal acts in their lives. Over a period of 12 weeks each participant shared his/her story. Victim
participants impressed on inmates that healing from violent crime is a long and painful process and that they
may never fully heal. Offenders expressed deep remorse and acknowledged responsibility for their crimes.
Taking responsibility and making amends, core components of the restorative vision, are often part oftreatment programmes or cognitive skills programmes. Consequently, many of these programmes contribute torestorative goals as long as the means of achieving those goals are consistent with restorative values. Any
practice that diminishes the core self of the victim or offender or is disrespectful of human dignity would not
be restorative.
Restorative practice for professionals in the justice system may be as ordinary as carrying the values ofrestorative justice into all interactions with offenders and victims. It may be answering the phone withcompassion and patience when an angry victim is calling about the case, or it may be routinely asking
questions of the offender to prompt offender awareness such as: Who was harmed by your actions? What
could you do to make it right?
The involvement of community volunteers in victim services or programmes to support offenders making
amends or making changes in their lives is also a restorative practice. Volunteer assistance to victims andoffenders reconnects them to the community fabric. One of the harms of crime is the disconnection andisolation that result from crime for both victims and offenders. By giving of themselves, volunteers help
mend the tear in the community fabric caused by the crime.
C. Restorative Practices in Justice Systems Management
Restorative practices encompass more than the ways that professionals or community members mightwork with victims and offenders. Very important management practices and infrastructure withinorganizations support personnel in implementing restorative practices in their direct work with offenders or
victims. Restorative management practices include training staff in restorative justice, job descriptions thatprioritize restorative justice, policies that support restorative goals and performance measurement systems
that give weight to expectations consistent with restorative philosophy. For example, when an offender owes
money for fines, fees and restitution, which is paid first? Systemic restorative practice puts the restitution
first (Maloney, Bazemore and Hudson, 2001).
IV. RESTORATIVE PRACTICES BEYOND THE JUSTICE SYSTEM / INFLUENCES BEYOND
THE JUSTICE SYSTEM
Everything described above in restorative practices relates to the criminal justice system. These
practices also have application in many other settings. A model of punishment for wrong-doing similar to thejustice system is common in schools, workplaces, communities and families. Because all the same problems
with the model arise in those settings, the philosophy of restorative justice has moved beyond the criminal
justice system to other sectors where people are searching for a more constructive way to respond to harm –a way that does no further harm and that seeks learning and long term resolution.
A. Restorative Measures in Schools
The Minnesota Department of Children, Families and Learning promotes restorative measures in K-12
schools as an alternative to suspension or expulsion and as a classroom management tool to prevent small
problems from becoming major flare-ups (Karp and Breslin, 2001). Peer mediation, group conferencing and118

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peacemaking circles are used to resolve conflicts or behavior problems between students and sometimes
between students and staff.
1. Snapshots of Restorative Measures in Schools•
A tenth-grade student was referred to circle for attendance issues. In addition, he had been introuble for smoking. During the second circle, he told a story about how he had not felt comfortable inschool since he had been expelled the fall of his eighth-grade school year for the remainder of that year.
No one at the high school had any idea how traumatic the experience had been for him until both he andhis mother talked about it in the circle. He told the members that this was the first time since theeighth grade that he felt anyone at school had really tried to understand where he was coming from.
•A student in an elementary school threatened to “burn the school down” following recess. This
incident occurred soon after the events in Littleton, Colorado, and his anger sparked fear among hisclassmates. The teacher requested a circle of understanding for the students. The next day, the entire
classroom participated in a circle. Many of the students reported experiencing nightmares as a result of
the student’s threat. During the circle, students expressed their feelings about how the threats had
impacted them. The students also reflected on how their behavior had an effect on the student and how
they were responsible, to a degree, about what happened to him. At the conclusion of the circle, theboy agreed to make changes in his behavior by: 1) not swearing or threatening others, 2) thinking
before speaking and 3) walking away when he was mad to cool down and then talk it out later. He also
agreed to write an apology letter to his classmates. His classmates agreed to make changes in their
behavior by: 1) being nicer to him, 2) not telling lies about him, 3) not teasing him, 4) playing with him
so he would have more friends, 5) being his partner in class, 6) helping him make new friends, 7)
sticking up for him in a good way, 8) forgiving him and giving him a second chance, and 9) playing
basketball with him after school.
•
A teacher requested a Circle of Understanding with a student after he yelled at the student for notcompleting his homework. The teacher wanted to repair the harm done to the student out of anger andfrustration. In the circle, the student’s mother said, “Welcome to being human”. The student said,“We all can do better and I’m ready to do my part”. The teacher had the courage to admit his mistakeand seek help in repairing the harm through the circle.
•
A student made derogatory comments to three others about their race. Through the circle process
the victims explained what the comment reminded them of: an uncle being shot by a white man who
called him the same name as he was shooting him, a movie that has “those people dressed in white
doing mean things to us,” and another victim said, “it hurt my heart badly and I need to do something
about it.” The offender explained that he then understood what he said was wrong. The students
became friends and play together daily.
In addition to addressing specific conflicts peacemaking circles are used to address more generalized
climate problems of the entire classroom such as bullying or scapegoating. Peacemaking circles are also used
as a prevention measure to help elementary students cope with emotional events such as a teacher or otherstudents leaving or a trauma experienced by a class member. One elementary classroom did a healing circle
for a classmate whose infant sister died.
On several college campuses restorative practices are an alternative to the traditional discipline process.
B. Restorative Approaches to Child Welfare
In the field of child welfare there is widespread use of models based on the New Zealand family groupconference method. Sometimes called family group decision making, that process involves the family indesigning a plan to address the safety of children in the family. This process did not develop within thephilosophical framework of restorative justice but is increasingly recognized as restorative in its approach. In
Canada peacemaking circles have been used to determine outcomes in child welfare cases.
C. Restorative Approaches in the Workplace
A recent international conference on restorative practices offered intensive training and workshops on
using restorative practices in the workplace. Several social service organizations and a juvenile corrections
facility have begun using group conferencing and peacemaking circles in the workplace to deal with staff
conflict or performance problems. Staff at a residential programme for juveniles in Minnesota participated ina one and a half day peacemaking circle to work through the anger and hurt that resulted from a workers’

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strike and the choice by some workers to cross the picket line. The circle helped the organization move past
the anger and re-focus on helping young people - the mission of the agency.
In Minnesota, prison staff are using restorative practices to address staff conflict and worker
dissatisfaction at many different levels. In a peacemaking circle with the warden and the watch guard,
requested by a front line corrections officer to share his frustration with management practices, the officer
acknowledged his own responsibility in the difficult relationship. The officer left the circle with a renewed
sense of hope that his voice could be heard without acting out. Longstanding anger and resentment havebeen aired and common ground reasserted through the use of peacemaking circles between the top
administration team and the lieutenants in that prison. Respectful truth-telling in restorative processes istransforming an atmosphere of fear and helplessness to one of hope and shared responsibility.
D. Other Uses of Restorative Approaches
In Minnesota an ad hoc group representing various health related professional regulatory bodies of thestate (for example, the Minnesota Board of Family Practice) is meeting to explore using restorative
approaches to resolve complaints against members of those professions.
In an Oregon apartment complex, a planned eviction was averted by using a peacemaking circle for the
problem tenant and other tenants to work through the issues prompting the proposed eviction. The
Methodist Church has begun training bishops to use the circle process to respond to conflicts withincongregations.
Members of an immigrant community struggling with conflicts between the “old way” and the “new way,”
between men and women, and between young and old are coming together in peacemaking circles to listen
respectfully to one another’s anger, pain and hope.
In many settings outside the justice system, restorative practices are being used to respond to conflict orharm by engaging those most impacted in working out a resolution that repairs the harm where possible andmoves toward healing for all parties.
V. WHAT ARE THE CHALLENGES FACING RESTORATIVE PRACTICE?
Balancing the need for flexibility and responsivity and the desire to standardize. The process of creating
restorative responses to crime is necessarily holistic, circular, shaped by those closest to the problem,
responsive to the specifics of the situation (not universal) and messy (Pranis, 1997a). At the same time there
is a need to describe and quantify what is happening to be accountable to the larger society and ensure
fairness and appropriateness.
Maintaining a focus on victims’ needs and concerns. Very often victims are not involved or are brought
into the planning and implementation of restorative practices as an afterthought (Achilles and Zehr, 2001). It
takes great vigilance to avoid slipping into the habit of framing everything around offenders (Pranis, 1997a).
For example, people often begin with the question, “For what kinds of offenses is restorative justiceappropriate?” That question centers on the offender. What happens if we ask, “For what kinds of hurts is
restorative justice appropriate?”
Staying true to the values of the new paradigm. Any new way of doing work faces a strong tendency for
older, familiar patterns to reassert themselves. Over time key elements of practice may become blurred orerode. Time pressures, lack of a sense of competence in the new way, lack of training, resistance to change –all of these factors can cause practitioners to take short cuts or do it the old way.
Reducing dependence on professionals. Several decades of referring more and more community problems
to professional services (e.g. police, social services) have eroded community skills and sense of efficacy inhandling community problems (Pranis, 1997b). Many lay people do not speak up, or they defer toprofessional opinions, waiting for the experts to solve the problem. Professional skills and knowledge havean important contribution to make, but they are only one source of information and resources. Community
insight, skills and resources can make a much greater contribution than is currently the case.
Using the full capacity of restorative processes. Many programmes deal only with first time offenders andvery low-level cases, which might be more readily resolved in an informal community or family process and120

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should not enter the criminal justice system at all. Restorative processes have the capacity to deal with very
difficult situations, and, because they are generally more time intensive, using them for primarily low level
offenses fails to take advantage of their full potential in improving community life.
Integrating values into technique. In restorative justice, how to be with people is as important as what to
do with people. Actions are not independent of core values. Specific techniques, formulas for action, aresubject to contextual determination and cannot be rigidly set. Yet as a culture we do not have much patiencefor discussions of values. Neither do we give much thought to how we can intentionally apply values on adaily basis to guide decisions within a span of options available (Pranis, 1997a). Criminal justice professionals
frequently say, “Just tell me what to do”. Action without understanding the underlying values can produce
results contrary to the intention.
Sufficient referrals. In many community based programmes, we find the paradox of unused community
capacity to handle cases side by side with an overloaded system that does not take advantage of that capacity.
Even in jurisdictions sympathetic to restorative programmes, it is a challenge to provide a steady flow ofreferrals. The habits and momentum of the system are difficult to modify to create a non-standard channel forcases. Many programmes whose services are primarily delivered by community volunteers find that they
spend more time trying to get referrals than they do in maintaining their volunteer corps.
Creating a workable interface with an adversarial system. Restorative processes build relationships andtrust. Truth telling is considered essential to developing effective solutions. If a person who reveals
information out of trust is then thrust into an adversarial process that threatens harm or feels very
disrespectful, the person will understandably experience a sense of betrayal of the trust extended (Pranis,
1997a). Issues of confidentiality are very thorny in practice.
Creating appropriate systems of community accountability and government accountability. Communities are
not always fair and even-handed and government structures are not always responsive to legitimate
community needs and interests. How do we ensure that community based processes honor restorativevalues such as equality, fairness, and the intrinsic worth of every human? How do we ensure that the formal
justice system shares responsibility and power with the community while protecting individual rights of both
victims and offenders? Restorative justice requires a relationship of mutual responsibility between
communities and formal government, but we lack clear mechanisms for responding to a failure of
responsibility on the part of the community or formal government in these processes.
Openly articulating a commitment to compassion and love in our work. Ironically, love and compassion arethought of as soft, when in fact it takes much more courage to speak of love and compassion than to speak ofhate and vengeance in public discourse. Compassion and our capacity to connect as human beings are at thecore of restorative philosophy. Accountability is a natural by-product of healthy love. If we love someone, weknow it does harm to his/her soul to harm others and that the way to heal the soul is to take responsibility
and to make amends. Healthy love is the environment most conducive for a wrong-doer to take full
responsibility and to make the changes necessary to make sure it won’t happen again. Healthy love does not
excuse behavior or run away from responsibility. Walking the path of compassion is extremely hard work –it’s not for the faint of heart.
VI. TRENDSInterest and awareness of restorative justice are steadily growing. Nine years ago when I started my jobat the Minnesota Department of Corrections there were only a handful of people who had heard of restorative
justice. A recent poll in Minnesota indicates that 1 in 5 adults in Minnesota has heard the term ‘restorative
justice.’ The number of books and articles in the criminal justice field about restorative justice has
mushroomed in the past several years. Though far from being mainstream practice, restorative justice can nolonger be ignored by any serious student of criminal justice.
For the most part practitioners have been at the forefront of this movement in the U.S. rather thanacademicians and theoreticians. It was Howard Zehr’s direct experience in doing victim offender mediationthat led to the theory he describes in Changing Lenses, the foundational book of the current restorative
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Developments in the field have sometimes defied the expectations of restorative justice practitioners
themselves. The early victim-offender mediation practitioners assumed that victim-offender mediation would
never be used in cases of serious violent crime. However, several victims of serious crime, wanting
something to help them move on in their lives, insisted on the opportunity to meet with the offender.
Facilitating face to face meetings in cases of severe violence is now a growing area of practice and researchwith formal programmes in at least nine states.
Another unanticipated development is the realization that implementing restorative practices with victims
and offenders challenges traditional organizational structures. Management practices toward employees inmost organizations trying to implement restorative approaches are not consistent with the fundamental
democracy of restorative practices and the emphasis on relationship building as the pathway to desired
behavior. Restorative justice is prompting deep self-reflection at personal and organizational levels aspractitioners recognize that the values of restorative justice apply to all aspects of our lives and require us tolive them as well as use them with victims and offenders. Healing processes are needed for front line
workers who have often felt powerless and discounted in their organizations.
Practitioners in some areas are beginning to explore the potential of restorative practices to address
larger social harms such as racism and bias. The experience of the Truth and Reconciliation Commission inSouth Africa suggests a possible role for restorative justice in acknowledging and healing the historic trauma
that contributes to the struggles of African American and Native American people in the U.S.
Restorative justice practices in the justice system are generally appended to the mainstream system andsupported by discretionary or soft money. To move past being a novelty for a few cases to become a normal
way of doing business in the justice system, it will be necessary to shift resources more systemically andinfuse all activities and functions of the justice system with restorative values.
Although still only impacting a small percentage of cases in the criminal justice system, restorative justicephilosophy is energizing a wide range of activities across the United States toward a vision of wholeness for
all those harmed by crime. The restorative justice movement is very dispersed in leadership and activity. It
has many of the characteristics of a grassroots movement, although there is significant government
involvement in some places. Without large amounts of money, high profile leadership or a marketing plan,
the movement has, nevertheless, spread across the country in justice systems and is now influencing otherfields such as education and social services. There is a remarkable level of coherence and focus in the
movement, in spite of the lack of a national voice or organizing infrastructure.
VII. CONCLUSION
The restorative justice movement is deeply rooted in values of interdependence and non-domination.
Holding those values in healthy balance requires continuous dialogue with deep listening. Honoring eachindividual as a unique and indispensable part of the larger whole supports people in acting on behalf of theirown well-being in balance with the well-being of others. The task of restorative justice is to create spaces inwhich people can experience one another through heart and spirit and can access their own capacity for
wisdom and healing through relationships with others.
A colleague from education, after listening to several people discuss restorative justice, said, “Oh, I get it.
It’s like 30 years ago when we threw a bottle out the window, we thought we threw it away. Then theenvironmental movement taught us: There is no “away”. Wherever we throw it, it is still part of us.
Restorative justice says the same about people”. The restorative justice movement calls for mindfulness
about our connections and our impact on one another. That is the basis for healthy living in our families,
schools, neighborhoods, workplaces and in the justice system.
REFERENCES
Achilles, M. & Zehr, H. (2001). Restorative Justice for Crime Victims: The promise, the challenge. In G.
Bazemore and M. Schiff (Eds.), Restorative Community Justice: Repairing Harm and Transforming
Communities. Cincinnati, OH: Anderson Publishing.

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Karp, D. & Breslin, B. (2001). Restorative Justice in School Communities. Youth and Society, 33(2), 249272.
Pranis, K. (1997a). Cautions/concerns regarding implementation of restorative justice. Personalcorrespondence to Kay Harris, Temple University.
Pranis, K. (1997b). Rethinking Community Corrections: Restorative Values and An Expanded Role for theCommunity. The ICCA Journal on Community Corrections, 8(1): 36-39.
Pranis, K. (1998). Building Justice on a Foundation of Democracy, Caring and Mutual Responsibility,
unpublished.
Pranis, K. (2003). The Practice and Efficacy of Restorative Justice. Journal of Social Thought (publication
pending).
Zehr, H. (1990). Changing Lenses: A New Focus for Crime and Justice. Scottsdale, PA: Herald Press.
Zehr, H. (2002). The Little Book of Restorative Justice. Intercourse, PA: Good Books.

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RESTORATIVE JUSTICE IN MINNESOTA AND THE USA:
IMPLEMENTATION AND OUTCOMES
Kay Pranis＊
I. IMPLEMENTATION
Restorative justice is not a particular programme or a fixed set of practices. It is a framework for guiding
our actions in large and small ways in every part of the justice system. Additionally, restorative justice places
a high value on: 1) empowering those closest to the problem (including the offender) to design a specificsolution tailored to the problem and 2) viewing every problem as an opportunity to learn. Consequently, fluid,
flexible approaches are essential to maintain the spirit of restorative justice – to leave key decisions to thestakeholders and to continually incorporate new learnings. So, in many ways restorative justice is a journey,
more than it is a destination. If the journey is guided by the principles and values of restorative justice, thedestination may be one that no one anticipated, but it will be one that serves all the stakeholders.
So, questions of implementation take a different form than in many other kinds of change in public
systems. There is no single path toward a restorative vision. There is no blueprint with precise instructions
for how to do it. The path must be responsive to the particular context of each community and toopportunities as they emerge and must always be rooted in the values of respect, self determination , mutual
responsibility and inclusion.
There are, however, conditions which increase the likelihood of success in implementation efforts. Someof those are:• Commitment from the top and bottom of the criminal justice system• A passionate champion for the vision• A strong partnership between citizens and the justice system• An open planning process that allows all interested parties to help design the restorative approaches
to be used
• Active involvement of victims and victim advocates• Attention to the relationships of those working together toward a restorative vision• Open, respectful engagements with those who disagree• Periodic return to a discussion of underlying values to affirm the shared vision
II. ROLE OF STATUTES
Legislative action and statutory changes have not played a large role in the development and growth ofrestorative practices. Statutes have been enacted in some states, but they are often reactive rather thanproactive. Government support at the state and federal level has generally been through executive branchagencies. In Minnesota, where nearly every model of modern restorative practice has been implemented,
there was no enabling legislation to begin restorative practices. Implementation has been regarded as within
the discretion of existing statutes. After programmes were already in place, a definition of restorative
programmes was put into statute to ensure that newly created grant monies would be properly allocated. In
some cases, such as Vermont, statutory change was necessary to create options other than prison andprobation, but leadership in that policy change came from the Department of Corrections, not the legislature.
Restorative justice legislation in most states other than Minnesota and Vermont has been focused on thejuvenile justice system. In many states that legislation has been part of a larger package of legislation thatwas very non-restorative in its approach. In Illinois, for instance, the bill supporting restorative justice forminor offenses also mandated a larger number of juveniles be transferred to the adult system to face punitive
adult sanctions.
＊

Restorative Justice Planner,
Minnesota Department of Corrections,
U.S.A.

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Because in the U.S. the restorative justice movement has been largely a practitioner movement, for themost part advocates for restorative justice have implemented these approaches by using their existing span ofcontrol or discretion in their jobs, rather than seeking permission from legislative bodies or high level policy
makers.
III. ASSESSING EFFECTIVENESS
A. The Power of Questions - Asking the Right Questions
Restorative justice practice recognizes that the question you ask dramatically impacts the intervention
that will follow (Pranis, 2003). For instance, when you change the question from,"What should we do to this offender because of the harm he/she did?" to "What should this offender do to
make amends for the harm he/she caused?" an entirely different direction in the intervention follows. The
shape of our questions determines the shape of the answers to a particular problem.
In a day long seminar on the overrepresentation of African Americans in Minnesota prisons, one small
discussion group was asked to respond to the question, "How is Minnesota so successful in keeping white
people out of prison?" At first some participants laughed and thought perhaps it was a facetious question. It
was not. It was a serious question. When the group began to answer that question, the discussion provided avery different direction for action than would have emerged in answer to the question, "Why is Minnesota
locking up so many African Americans?"
An entire field of study, Appreciative Inquiry, has emerged from the recognition that the way we frame
the question has enormous implications for what answers will emerge to shape actions that have real life
consequences (Hammond, 1996). Therefore, the questions we choose and the way we understand thosequestions is very important. The questions we ask are often not neutral. It is a core premise of qualitative
research that assumptions are embedded in our questions that are shaped by our values and beliefs (Loflandand Lofland, 1995; Patton, 1990). Examining those assumptions and the underlying values can help clarify
how we are using questions and where particular questions might lead us.
Analysis of restorative justice and its practices raises several layers of relevant questions: questions about
restorative justice as a philosophy (Van Ness and Strong, 2001; Braithwaite and Petit, 1990) and questions
about the design and implementation of restorative justice practices in relation to that philosophy (Bazemore
and Schiff, 2001). Within the practices questions are an important tool in prompting dialogue among
participants about particular events. Asking the right questions - questions that assist individuals or groupsin accessing their own wisdom and in reflecting from a posture of seeking positive outcomes - is essential toeach of these layers.
B. Rethinking the Question: Does it Work?
One of the most commonly asked questions about restorative justice is, "Does it work?" It's a natural
question, because people want to know if an effort is worth putting energy into, yet it can be a misleading
question if we are not clear about whether we are talking about restorative justice as a philosophy and guiding
vision, or whether we are talking about the practices that put that vision into practice. The question, "Does it
work?" usually asks for quantitative evidence. A philosophy or guiding vision is chosen based on a sense ofdeep inner truth and does not limit itself to that which can be proven by evidence. A philosophy can express
our hopes and aspirations, not just our current reality. Choosing our philosophy matters. The world is not an
objective reality that remains the same regardless of what we believe (Kuhn, 1962). To a large degree ourbeliefs shape the world we create with our actions and our energy. Choosing a positive vision contributes tocreating a more positive world.
C. Does Restorative Justice Work as a Philosophy?
So, let's ask the question, "Does it work?" of restorative justice as a philosophy and guiding vision forevery aspect of how we respond to harm. What do we expect from a philosophy? We expect that it guides us
in understanding how life works and in being intentional about identifying the values we wish to live by andthen figuring out how to make them operational. We ask it to give us clear direction about how to conduct
ourselves, even in very difficult circumstances. What do we expect of a vision? We expect that it inspires,that it describes a world that we would want to live in, that it draws out our capacities, that it aligns separate
individuals in a common quest or endeavor. In the case of a paradigm shift from a current dominant
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philosophy to a new philosophy, we expect the new philosophy to resolve persistent problems in theprevailing philosophy (Bazemore, 2001).
Does restorative justice as a philosophy and guiding vision meet these expectations? Restorative justiceappears remarkably successful as a philosophy and guiding vision. Restorative justice sets out a clear set ofvalues to shape our actions. As a philosophy, it assists us in understanding the concrete, personal harm ofcrime and its effect on relationships and community. It also helps us design pathways for repair and healingof those negative impacts. It provides reasonably clear direction for our conduct. While not prescriptive
about strategies, restorative justice is clear about the goals of actions and the value-constraints that limit
actions. Practitioners may disagree about some specific approaches and their degree of restorativeness, butthere is a high level of agreement about what core practices look like and what makes them restorative(McCold, 2000; Bazemore, 2000; Walgrave, 2000).
As a philosophy for a new paradigm, restorative justice does resolve serious dilemmas of the prevailingparadigm of justice. The criminal justice system is under great stress and pressure to demonstrate its
effectiveness. Both the public and professionals within the system register high levels of dissatisfaction. In
the current paradigm, the criminal justice system faces the following dilemmas:• lack of clarity about the purpose of sentencing;• contradictory impulses between punishment and rehabilitation;• victim frustration and alienation;• public expectation that the criminal justice system will control crime;• failure of increasing punishment to change behavior;• skyrocketing costs of punishment;• failure to integrate social justice with criminal justice;• widespread system overload (Pranis, 1992).
Despite heroic efforts of dedicated professionals and high levels of spending over the past two decades,
relatively little progress has been made on these problems within the dominant paradigm. Restorative justiceas a philosophy resolves these persistent problems.
Lack of clarity about the purpose of sentencing. Restorative justice establishes the purpose of sentencing,
above all else, as repair of the harm done to the victim, to the offender himself, and to the community,
including the harm of losing a sense of safety within the community. Other purposes may be served but aresecondary.
Punishment vs rehabilitation. Restorative justice replaces the focus on punishment, measured by how
much pain is inflicted, with a focus on accountability, measured by taking responsibility and taking action to
repair the harm. This kind of accountability, while often painful, supports growth and healing and does notconflict with rehabilitation.
Victim frustration. Restorative justice prioritizes victim involvement, victim choice, and a sensitivity tovictims’ concerns throughout the process, including post adjudication. Without a victim perspective, wecannot be sure of exactly what the harm was and what would be helpful to repair the harm. Victim
satisfaction is a high priority in restorative justice (Achilles and Zehr, 2001; Umbreit, 1999).
Failure of increasing punishment to change behavior. Restorative justice is not premised on theassumption that punishment will change behavior and does not rely on producing results through punishment.
Public expectation that the criminal justice system will solve the problem of crime. We know that actions of
the criminal justice system have limited impact on the crime rate, yet our paradigm suggests that the criminal
justice system has a primary role in changing crime rates. We are unable to deliver what the model seems topromise. Restorative justice has a goal of reparation and measures outcomes based on the question: “To
what degree has the harm been repaired and power relationships put right?” In restorative justice crime
control is clearly identified as a function of community and government partnerships that include criminal
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Skyrocketing cost of punishment. Restorative justice requires fewer investments in punishment since thesystem is measured, not by how much punishment is inflicted, but by how much reparation and healing areachieved.
Failure to integrate social justice with criminal justice. This is perhaps the most serious failing of ourpresent system. Restorative justice clearly defines a relationship between social justice and criminal justice.
The community is held responsible for community “shalom.” Individuals are held responsible for their
behavior. A bad environment does not excuse individuals of responsibility for causing harm to others, but at
the same time the community is held accountable for promoting community peace, including social justice.
The community is expected to take responsibility for supporting victims, helping offenders take responsibility,
and addressing underlying causes of crime. The community is not allowed to simply banish people andexpect someone else to deal with the behavior as though the community had no part in creating the problem.
Restorative justice integrates individual and social responsibility in a coherent conceptual framework (Pranis,2001).
System overload. Responding to crime through repair of harm, problem-solving through conflict resolution,and involving families and communities spreads the workload to multiple stakeholders, not just the criminal
justice system, and engages all these stakeholders in a commitment to finding workable solutions(Braithwaite, 2001).
As a paradigm shift, restorative justice helps us understand differently the problems that are intractable inthe current paradigm and provides direction for resolving those problems.
As a vision restorative justice has energized a grassroots movement across the globe in the face of one of
the most powerful and entrenched systems in the modern world, the criminal justice system. With very little
money and a prevailing public discourse in the media and politics that is exactly the opposite of restorative
justice, this vision is nonetheless moving powerfully forward. Many criminal justice professionals speak ofbeing reenergized and invigorated by this vision in a way they have not experienced in the past twenty-fiveyears of their careers. Restorative justice as a vision has brought together people who would never haveimagined working together - inner city residents with criminal justice professionals, former victims withformer offenders, European-Americans with African-Americans, judges with community members, gangmembers with police, conservatives with progressives, atheists with Christians. Restorative justice as avision has provided common ground for a wide variety of perspectives and world views.
As a vision restorative justice has drawn out skills, energy and passion from people who previously saw
no place for themselves in responding to crime. Energy to address the problems of crime and conflict in ourcommunities is coming from many outside the justice system, creating a sense of shared ownership of the
problems and the solutions. As a movement with no clear center, singular leadership or national
infrastructure, restorative justice has a remarkable sense of coherence across cultures, organizations, andsectors in the U.S. Restorative justice is moving organically and is not dependent upon charismatic
leadership or traditional structural legitimacy for its sense of authenticity and purpose.
Restorative justice is clearly inspiring, describing a world people want to live in, drawing out potentials,
capacity, and aligning endeavors in a common quest. As a vision, it works.
D. Do the Practices of Restorative Justice Work?
Now, let's examine the question, "Does it work?" as it might be applied to restorative justice as a clusterof practices that put the philosophy of restorative justice into effect. What do we expect of our practices?
What would be the characteristics of "working" for practices intended to move toward this vision and how
would we measure those? We expect our practices to be consistent with the values and direction embedded
in our philosophy. We expect our practices to result in changes that move us closer to the world described byour vision. To “work” as a practice is both a means and an ends question. The practice must not only
produce results that move toward the vision, but it must also produce those in a way that does not violate thephilosophy. Otherwise the practice is not working to operationalize that philosophy.
The vision of restorative justice describes a world in which harm has been repaired for victims, offenders,and communities and a world in which those who cause harm take responsibility and contribute to the repair.
It also describes a world in which power relationships are put into proper balance. So our practices should
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result in victims, offenders and communities who are in some way in a better position than they were before
the restorative intervention. Our practices should have offenders involved in repair of harm to the victim andthe community, and they should support offenders in taking responsibility for their actions.
The following characteristics describe practices that are “working” to move us towards that vision(Pranis, 1994) and provide guidance on what we may wish to measure:• The practice provides opportunity for increased involvement of victims.
• The practice produces repair of the harm of the crime for victims to the degree possible.
• The practice increases offender understanding of the harm of the behavior to the victim, thecommunity, and the self.
• The practice encourages offenders to take responsibility for the harm done.
• The practice actively engages the offender in repairing harm to the victim and the community.
• The practice produces repair of the harm of the crime for the community to the degree possible.
• The practice involves community members and encourages the community to take a share of
responsibility for repairing harm and managing behavior in the community.
• The practice results in changes that will reduce the likelihood of the crime happening again.
• The practice increases the capacity for self-regulation in individuals and communities.
It is not necessary for a restorative practice to have all of those characteristics. It must, however, have atleast one of them and must not in its implementation undermine any of the others.
A broad overarching question for any specific intervention is: Does the intervention leave the community
stronger than it was before the crime happened (Pranis, 2001)?
In addition to the characteristics listed above, it is necessary to examine how the practice is carried out,
the “means” question. If the process of responding to an offender is humiliating or demeaning, the outcome
is unlikely to be a respectful attitude by the offender. If the process of responding to a victim is patronizing or
discounts the victim’s voice, the outcome is unlikely to be the recovery of personal power (Pranis, 1997b).
Are the means consistent with the desired ends? Is the practice carried out with respect toward andacknowledgement of the inherent human dignity in everyone?
IV. OVERVIEW OF RESEARCH
The face-to-face practices are designed to increase victim involvement, produce repair of harm, increase
offender understanding, encourage offenders to take responsibility and actively involve offenders in repairing
the harm, the characteristics identified earlier for practices that “work”. Research results indicate that
implementation is achieving these goals.
Multiple research studies on victim offender mediation and family group conferencing demonstrate highlevels of victim satisfaction, high levels of offender satisfaction and increased payment of restitution
compared to court ordered restitution. A meta-analysis examining 22 control group studies of 35 individual
restorative justice programmes (26 youth, 9 adult) concluded that compared to victims who participated in the
traditional justice system, victims who participated in restorative processes were significantly more satisfied
and that offenders in restorative justice programmes were significantly more likely to complete restitutionagreements (Latimer, Dowden, Muise, 2001). The meta-analysis also found reduced recidivism rates for the
restorative justice programmes.
Umbreit, Coates and Vos (2002) in a review of 63 studies of restorative justice conferencing in 5 countries(46 studies of victim offender mediation, 13 family group conferencing studies and 4 assessments ofpeacemaking circles) found remarkably consistent levels of victim and offender satisfaction with conferencing
strategies, increased likelihood that restitution contracts would be paid and crime reduction for a significant
number of offenders who are involved in restorative conferencing approaches.
A qualitative study of a community circle programme in a suburban community found that victims in thecircle process felt supported by the community and welcomed the opportunity to participate in the justiceprocess (Coates, R. Umbreit, M. Voss, B. 2000). The typical case in this programme was a pre-charge
juvenile misdemeanor referred by the police. In the study every circle participant was able to point out atleast one important outcome of the circle. The most important outcomes were: offenders accepting
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responsibility and being accountable, addressing future relations between the victim and the offender,
opportunity to express feelings and awareness of support from the community. The study also found an
unusual willingness of volunteers to contribute hours and hours to the work of the circle. “Council
participants have strengthened their own sense of being part of a community and of sharing responsibility forwhat happens in its boundaries (p.74).”
Research on victim offender mediation and dialogue in crimes of severe violence consistently shows highlevels of satisfaction and perceptions that the process was helpful on the part of both victims and offenders(Umbreit, Coates, Vos, 2001). Effects of the mediation session for victims included feeling heard,
experiencing less control of the offender over them, reduced fear, increased trust in relationships with others,
seeing the offender as a person rather than a monster, a sense of peace, reductions in suicidal feelings andrelease from anger (Roberts, 1995).
A study to determine the effectiveness of the Hollow Water First Nation’s holistic healing programme, acircle process for sexual abuse victims and offenders, concludes that the programme saved over $3 million injustice costs over a ten year period, in addition to improving economic, cultural and social sustainability of thecommunity (Couture, Parker, Couture, Laboucane, 2001). Recidivism in that programme is approximately
two percent.
The Woodbury Police Department Restorative Community Conferencing Programme, one of the earliest
restorative group conferencing programmes in the U.S., has collected data from participants in theirprogramme since 1996. The results show very high overall satisfaction rates each year – 8 or higher on a 10
point scale - of offenders (ranging from 71% – 100%), victims (ranging from 86% to 100%) and offenders’parents (ranging from 80% - 85%). The data also show high levels of perception of fair treatment by victims,
offenders and offenders’ parents and almost unanimous agreement that participating in Restorative Justice
was preferable to having the situation handled by the court system.
This programme uses restorative group conferencing with juveniles. A wide range of offenses have been
conferenced. The largest offense categories are juvenile alcohol offenses, theft, shoplifting, assault (bothfelonies and misdemeanors), damage to property, controlled substance and disorderly conduct. An analysis to
examine recidivism included 281 cases. Slightly over half (52.7%) of the offenders were first time offenders;
the remaining offenders had prior records ranging from one prior to 25 priors. There were 84 cases with two
or more priors. The study found that recidivism rates under the conferencing programme were 33.1%
compared to 72.2% for juvenile cases the year before the conferencing programme began. The study also
found a change in the pattern of re-offending. Those who participated in conferencing did not re-offend as
quickly and tended to have a less serious subsequent offense when compared to those who re-offended
without going through a conference. By using conferencing for most juvenile offenses in Woodbury, thePolice Department has significantly reduced the number of cases it sends to the County Attorneys office,clearly a cost saving to the County. In addition the public rating of the Woodbury Police Department by thecommunity has improved.
These are the results called for in the vision. If implemented in ways consistent with the values (respect,voluntariness, equal voice), then these face-to-face practices do successfully operationalize the philosophy.
They work.
A. Assessing the Effectiveness of Non Face to Face Practices
The non face-to-face practices identified as restorative are so designated based on whether they fit one ormore of the characteristics identified for practices that “work,” so by definition they can serve restorativeends. Those non face to face practices include: victim services, victim reparation funds, community support
for victims, community service by offenders, restitution, apologies, victim impact classes or panels, victimoffender groups, treatment programmes or cognitive skills programmes and involvement of community
volunteers.
However, for many of these practices, such as victim services, restitution or community service, researchbased on specifically restorative outcomes has not been conducted. Some seem intuitively obvious. For
instance, restitution clearly repairs some of the harm to the victim and thus “works” on that dimension ofrestorative justice, if its implementation is consistent with restorative values. Without research, though,questions remain about whether the victim perceives restitution as repair of the harm. In a restorative
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framework the people directly impacted determine the efficacy of an intervention. Much work remains to bedone in assessing effectiveness of these practices in achieving a restorative vision.
Some work has been done evaluating other non face to face practices such as victim impact panels andvictim-offender groups. Research conducted on the Citizens, Victims & Offenders Restoring Justice Projectin Minnesota (a twelve week group) found dramatic shifts in victim perceptions pre and post participation in
the group (Burns, 2002). After participation in the group victims believed that the wounds and healing ofoffenders is important, offenders seem to feel sorry for what they did, and offenders were held accountable.
Other researcher observations include: signs of increased group integration; creation of a safe, supportive
environment; offender accountability; positive changes in participants feelings toward one another and agreater willingness to consider and engage in restorative responses to crime (Burns, 2003).
B. Research on Restorative Practices in Schools
Early research on restorative practices in schools shows promising results. A three year pilot projectusing restorative measures in five public schools in Minnesota found that the implementation of restorative
practices has improved student behavior and created a more collaborative school culture. In one school
yearly referrals to the office for acts of physical aggression dropped from 773 to 153 over a three and a halfyear period (Riestenberg, 2001). The results of these pilot projects prompted the Minnesota Department ofChildren, Families and Learning to fund several pilot projects to test strategies for promoting systemicchange toward restorative school environments.
In a study of a school based restorative group conferencing programme in Colorado participants strongly
agreed or agreed that (Ierley & Ivker, 2002):• The facilitators were effective and fair in handling their case. 97 %• This process helps to create a safer school environment. 92 %• This process helps to hold offenders accountable. 91 %• They feel satisfied with the outcome of this process. 96 %• They feel the process resulted in a fair and just outcome. 100 %Cases referred to the programme included harassment, fighting, theft, vandalism, arson, drugs andtruancy.
C. Public Opinion Research
Public opinion research in Minnesota consistently demonstrates a strong public leaning toward a
restorative approach to responding to crime. A statewide survey conducted by the University of Minnesota
Center for Survey Research in the fall of 2002 had several questions related to Restorative Justice. The
results of the survey indicate growing awareness of Restorative Justice and consistent public interest in thefundamental goals of Restorative Justice.
• When asked about the possibility of a face to face meeting with the offender if they were the victim ofa property crime, 78 percent of respondents indicated that they were likely or very likely to participate.
• A question about purposes of sentencing in violent crimes indicates only a 12 percent support for
retribution – a common justification of costly punishment. Respondents expressed very high support –61 percent - for making sure the offender does not commit the offense again. Restorative approaches
are consistent with that goal and offer innovative ways of changing and monitoring behavior so the harm
is not repeated.
• Another question about victimization in violent offenses indicates a preference for genuine apology
and efforts at repairing the harm (51 percent) over severe punishment (41 percent). That preference
clearly demonstrates an inclination toward restorative approaches even in serious offenses.
When asked whether they had ever heard the term restorative justice 1 in 5 adults indicated that they
have heard the term.
Similar results were found in questions on the statewide surveys in 1991 and 1992. The 1991 survey
included a question about strategies for reducing crime. In response to the question, “For the greatest
impact on crime, should additional money be spent on more prisons, OR spent on education, job training andcommunity programmes?” Eighty percent of the survey participants chose education, job training andcommunity programmes, while 16 percent chose prisons.

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These results demonstrate a community understanding of the importance of putting things right, making
amends and building a better future.
V. COMMUNITY BUILDING OUTCOMES
It was suggested earlier in this paper that restorative interventions should leave the community stronger
than it was before the crime happened. Simply removing members from the community does not leave thecommunity stronger – perhaps less vulnerable, but not stronger. What kinds of interventions strengthen thecommunity?
• Interventions that strengthen positive relationships or create new positive relationships.
• Interventions that increase awareness of interconnection and mutual dependence.
• Interventions that increase the sense of citizen efficacy in solving problems.
• Interventions that create informal safety nets or support systems for people at risk.
Successful community building outcomes are sometimes achieved even in circumstances where an
offender is not successful. We are, as yet, relatively unsophisticated in measuring community building
outcomes because very little attention has been directed to establishing and measuring those outcomescompared to offender outcomes, but they are clearly very important outcomes and we do have someindications of success in that area.
Restorative justice views crime as an opportunity to reweave the social fabric by developing social capitaland informal social control through restorative processes. The following stories from the street are evidenceof the community building outcomes resulting from restorative interventions:• A woman from an inner city neighborhood community justice circle that works with African American
juveniles saw one of the 'circle kids' with a group of other kids on a street corner getting into a fight.
Because she has a relationship with the youngster through the circle, she pulled over and called to him
to get into her car. He jumped into her car and got himself out of potential trouble. (creating new
positive relationships)• Two community members in a downtown neighborhood met through participation in a community
restorative justice conference and discovered they live near one another. They subsequently worked
together to organize a clean up of their block. (creating new positive relationships, increasing the senseof citizen efficacy)• A community member felt empowered after participation in a restorative justice conference to speak
to a man smoking marijuana at her bus stop. She told him that she has to catch the bus there and it is
not okay for him to smoke marijuana in the bus stop. The man left. She stated that she would never
have done that prior to her experience in the community conferencing process. (increasing the sense of
citizen efficacy)• One member of a community justice circle group working with a 19 year old offender spoke of seeing
the applicant in the community a couple of times since the last circle. He recalled one incident where
they greeted one another and he expressed pleasure at that exchange. "The other time I saw you, but
you didn't see me," the community member continued. He went on to describe the applicant on his bike,talking to someone in a car who was in the street holding up traffic. He looked at the applicant and said,"That tells me about you and whether your attitude is changing. That was not respectful." While
working diligently to support and help this young man, the community is also clearly setting out
standards of behavior for everyone in the community, not just the offender.
• As a result of an assault by another juvenile an adolescent boy moved to a distant city to live with hisfather. Following a victim offender mediation regarding this case, the mother of the offender contacted
the mother of the victim expressing concern for her loneliness since her son moved away. The motherof the offender suggested that they do something together. They discovered a mutual interest intheater and began to attend plays together. (creating new positive relationships)• In the peacemaking circle process with a juvenile, the Community Justice Committee discovered that
one of the problems in the family was constant conflict between the juvenile and his brother. A minister
who is a member of the circle spent time with the brother and encouraged him to attend the next circle,
which he did. During that circle it became apparent that both brothers were very interested in car
racing. A community member offered both brothers a pass to the local racetrack in exchange for somehelp from them. A new relationship was created with this community member and the relationshipbetween the brothers was strengthened by emphasizing common ground. The brother voluntarily
attended the next circle for the offender. (creating safety nets)
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In an upper middle class suburb of St. Paul, an adolescent girl was charged with marijuana possession.
Initially, the mother could not believe her daughter could be involved with drugs. In the family groupconferencing process, which this city uses for all diversion cases, the mother was confronted with thereality of her daughter's use of drugs. The mother became concerned about the role of the broader
community context in her daughter's behavior. She suggested to the police department that there was aneed for a community wide dialogue on shared values and community standards to communicate clear
boundaries to the young people of the community. The police department worked with this mother toorganize a process called Focus on Community United by Shared Values, whose aims are to establish acommitted relationship between the youth and adults of the city, to focus on developing the characterand capabilities of all people, young and old alike, and to be responsible members of the community.
(increased awareness of interconnectedness)• Several volunteer community members of a Community Response to Crime panel gave their homephone numbers to a juvenile, suggesting that he call them if he has a problem. (creating a safety net fora person at risk)• An eighty year old victim of an attempted burglary, disappointed that the offender re-offended after
promising never to do it again, met with him, and asked insistently over and over, "How am I going toknow you won't do this again?" She calls him regularly to make sure he stays out of trouble. (creationof new positive relationship)• A victim of juvenile vandalism participated in the circle process. Shortly after the case was resolved
he was diagnosed with terminal cancer. A circle member who had worked closely with him throughout
the case visited him in the hospital, taking him homemade soup and flowers. Another circle member
played the violin at his funeral. (creation of new positive relationships and a support system)• The responsibility to rally around the victim can take countless forms. Churches in a small town in
Florida organized to reach out to the families of two college students who were murdered by high school
students in the Florida town. Representatives from the Florida community traveled to Maryland toplant trees in memory of the murdered young men. They also provided housing for the family of thethird victim who was severely beaten and was hospitalized in the Florida town. (awareness ofinterconnectedness)• Victims of the Oklahoma City bombing who traveled to Denver, Colorado, to attend the trials were
provided with extensive support by churches and community volunteers in Denver. (awareness ofinterconnectedness)• Twelve middle school students were involved in vandalizing an empty home in the community.
During the peacemaking circle process the students and their parents identified the lack of a place forstudents to hang out together as a contributing factor. Members of the community justice council
worked with Community Education to develop additional teen activities in their summer programme
and are exploring the feasibility of a teen center in the community.
• In a suburban community the victim, offender, offender's mother and neighborhood residents
gathered to resolve vandalism of a neighborhood tree house which had caused extensive conflict in thecommunity. While the police officer was working to find a suitable place to meet, a neighborhood
resident, who had participated in the process in another case, suggested that they could resolve the casethemselves without the police, and they did. The agreement addressed both the individual
responsibility of the offender and the responsibility of the neighborhood to be more connected and get toknow one another. The police accepted the agreement. Extensive use of family group conferencing by
the police department as the response to juvenile crime has resulted in an increase in community skills
in problem solving and conflict resolution. (increased sense of community efficacy)• In spite of difficulties with the offender, participants in a peacemaking circle project in a diverse innercity community express confidence that through this process the community will be strengthened.
"What's most important here is the community coming together. The details of how we do it are not asimportant as the community doing something." Use of the circle process as a response to crime has
increased the community's sense of capacity to address very difficult community problems. (increased
sense of community efficacy)• "What do you do here?" the woman asked. She noted that the atmosphere around the building hadchanged. "There were always lots of kids hanging around, making a lot of noise and they never helped
open the door when my arms were loaded. Now it's quieter and when they are around, they run to open
the door for me and want to know if you are in there doing circle." The woman she was speaking to haddone several circles with neighborhood kids and it had apparently changed the climate of theneighborhood.

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VISITING EXPERTS’ PAPERS
VI. REFLECTIONS ON ASSESSING OUTCOMES
The evidence I have presented about the effectiveness of restorative justice as a philosophy and a set ofpractices has used a wide variety of sources and types of information. Rigorous scientific research is one ofthose sources of information, but only one of many. Scientific research typically asks the question “Does it
work?” as it arises in the current paradigm, a paradigm based on the assumption of objective knowledge thatmust be validated in rational processes (Pranis, 2003). However, restorative justice posits a different set ofassumptions based on interrelatedness. In an interrelated world knowledge is not an objective entity with anexistence on its own. Knowledge is always in a context and rational processes are not the only way of gaining
or demonstrating knowledge. The restorative paradigm requires that we explore other ways of looking atquestions and knowledge and that we maintain some awareness of when we are using the old paradigm todiscuss the new paradigm.
Rigorous scientific research is also very costly. Many communities do not have the resources to conduct
such research. If we require rigorous scientific proof to make a change, then we may always be stuck with aparticular way because we cannot afford the ‘proof’. Scientific research is valuable, but other sources of
information are valuable as well, including feedback from others, direct experience and intuitive knowledge.
In my experience in the U.S., decisions about criminal justice public policy are based more on stories than on
scientific evidence. Stories are a profound way to share information and to convey deeper meanings.
In the academic and professional fields the question “Does it work?” is given great weight and primacy.
The question is typically asked as though we have a clear consensus about what “works” means. But as wehave seen it is not a transparent question. And it may not be as important as we have assumed in the way weare currently asking it. My experience in public speaking to very diverse groups in many different
communities across the U.S. is that lay community members rarely ask, “Does it work?” when restorative
philosophy and restorative practices are described to them. They more frequently ask, "Why aren't you
already doing it that way?"
For many a restorative approach is common sense and does not require proof – just as many aspects of
our life do not require proof. We don’t ask for proof that we should eat when we are hungry or that we should
sleep when we are tired. Some people don’t need proof that, when harm happens, we should focus our
response on repairing the harm. And many don’t need proof to know that bringing people together in a safe,
respectful, reflective process to speak truth and listen deeply will make the community healthier and safer.
Rhea Miller in her book, “Cloudhand, Clenched Fist”, writes about paradigm shifts and an expanded
understanding of how we know what we know. Knowledge is not just about facts that arise from theexperience of another (normal science), but about the relationship those facts have to our own experience.
External “proof,” if not resonant with our own truth, is not very compelling. The authenticity and authorityof an idea arises from the collective and individual experiences of a group. It cannot simply be bestowed by
the pronouncement of an expert. “Does it work?” as a primary, driving question arises in the context of
normal science in the old paradigm. In a paradigm shift, great caution must be exercised in using thequestions of the old paradigm to determine validity of the new paradigm.
“When a community can draw on and trust its own inner resources to discover the validity of a newparadigm, the community is liberated from bondage to old embedded, fixated ways of being in the world. The
community is then able to embrace the creativity of chaos, the possibilities of dreams. People are
empowered to imagine new ways of being, to problem-solve on a deep level.” (p. 60)
What do we ask about our practices to create a feedback loop of information that will support learning,
growth and improved practice in moving toward a restorative vision? In “Ethics for the New Millenium” theDalai Lama suggests that ethical actions are those that support the well-being of others. We cannot knowwhat is ethical without paying attention to how it will impact others, and we cannot know how our actions
impact others without asking them. So, perhaps, for ethical practice, the first and foremost question is: Whatis the impact of these interventions on the lives of real people from their perspective – all the people who are
affected by our actions? And when we get the answer to that question, we ask further: Is that what theywant and what we intended? The answers to these questions can guide us as we move forward.

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REFERENCES
Achilles, M. & Zehr, H. (2001). Restorative Justice for Crime Victims: The promise, the challenge. In G.
Bazemore and M. Schiff (Eds.), Restorative Community Justice: Repairing Harm and Transforming
Communities. Cincinnati, OH: Anderson Publishing.
Bazemore, G. & O’Brien, S. (2002). The Quest for a Restorative Model of Rehabilitation: Theory-forPractice and Practice-for-Theory. In Lode Walgrave (Ed.), Restorative Justice and the Law. Kugler
International, forthcoming.
Bazemore, G. (2000). Rock and Roll, Restorative Justice, and the Continuum of the Real World: A Response
to “Purism” In Operationalizing Restorative Justice. Contemporary Justice Review, 3(4), 459-477.
Bazemore, G. (2001). Young People, Trouble, and Crime: Restorative Justice as a Normative Theory ofInformal Social Control and Social Support. Youth and Society, 33(2), 199-226.
Bazemore, G. & Schiff, M. (Eds.) (2001). Restorative and Community Justice:Transforming Communities. Cincinnati, OH: Anderson Publishing.

Repairing Harm andBraithwaite, J. (2001). Restorative Justice and Responsive Regulation. New York: Oxford University Press.
Braithwaite, J. & Petit, P. (1990). Not Just Desserts: A Republican theory of Criminal Justice. Oxford, UK:
Oxford University Press.
Burns, H. (2002) Citizens, Victims and Offenders Restoring Justice Project MCF-Lino Lakes, St. Paul, MN:
Center for Restorative Justice and Peacemaking, University of Minnesota.
Burns, H. (2003) “Restorative Justice in Action: A Work in Progress.” Women, Girls & Criminal Justice, 4(1).
Coates, R. Umbreit, M. & Voss, B. (2000). Restorative Justice Circles in South Saint Paul, Minnesota. St. Paul,MN: Center for Restorative Justice and Peacemaking, University of Minnesota.
Couture, J. Parker, T. Couture, R. & Laboucane P. (2001). A Cost-Benefit Analysis of Hollow Water’sCommunity Holistic Healing Process. Ottawa, ON: Solicitor General of Canada.
Dalai Lama. (1999). Ethics for the New Millennium. New York, NY: Riverhead Books.
Hammond, S.A.. (1996). The Thin Book of Appreciative Inquiry. Plano, TX: Thin Book Publishing Co.
Ierley, A. & Ivker, C. (2002). Restoring School Communities Restorative Justice in Schools Programme:
Spring 2002 Report Card. Boulder, CO: School Mediation Center, www.schoolmediationcenter.org.
Kuhn, T. (1962). The Structure of Scientific Revolutions. Chicago, IL: University of Chicago Press.
Latimer, J. Dowden, C. & Muise, D. (2001). The Effectiveness of Restorative Justice Practices: A Meta-Analysis.
Ottawa, ON: Department of Justice Canada.
Lofland, J. & Lofland, L. (1995). Analyzing Social Settings: A Guide to Qualitative Observation and Analysis.
(3rd Edition). London: Wadsworth Publishing Co.
Maloney, D. Bazemore, G. & Hudson, J. (2001). “The End of Probation and the Beginning of Community
corrections” Perspectives (Summer 2001): 23-30.
McCold, P. (2000). “Toward a holistic vision of restorative juvenile justice: a reply to the minimalist model.”Contemporary Justice Review, 3(4): 357-372.
Miller, R. Y. (1996). Cloudhand, Clenched Fist: chaos, crisis, and the emergence of community. San Diego, CA:
LuraMedia Inc.

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VISITING EXPERTS’ PAPERS
Patton, M. (1990). Qualitative Evaluation and Research Methods. (2nd Ed.) Newbury, CA: Sage Publications
Inc.
Pranis, K. (1992). Incarceration vs Rehabilitation vs Restorative Justice. paper presented in Rochester, MN.
Pranis, K. (1994). Restorative Justice Asks These Questions. MN Department of Corrections.
Pranis, K. (1997). Rethinking Community Corrections: Restorative Values and An Expanded Role for theCommunity. The ICCA Journal on Community Corrections, 8(1): 36-39.
Pranis, K. (2001). Restorative Justice, Social Justice, and the Empowerment of Marginalized Populations. In
G. Bazemore and M. Schiff (Eds.), Restorative Community Justice: Repairing Harm and Transforming
Communities. Cincinnati, OH: Anderson Publishing.
Pranis, K. (2003). The Practice and Efficacy of Restorative Justice. Social Thought, A Journal of Social Work,publication pending.
Riestenberg, N. (2001). In-School Behavior Intervention Grants Report to the Legislature. St. Paul, MN:
Minnesota Department of Children, Families and Learning, www.cfl.state.mn.us.
Roberts, T. (1995). Evaluation of the Victim Offender Mediation Project, Langely, BC: Final Report. Victoria,
BC: Focus Consultants.
Umbreit, M. (1999). Avoiding the Marginalization and the McDonalization of Victim Offender Mediation: A
Case study in Moving toward the Mainstream. In G. Bazemore and L. Walgrave (Eds.), Restorative Juvenile
Justice: Repairing the Harm of Youth Crime. Monsey, NY: Criminal Justice Press.
Umbreit, M. Coates, R. Voss, B. (2001). Victim Offender Mediation & Dialogue in Crimes of Severe Violence.
Office for Victims of Crime, U.S. Department of Justice.
Umbreit, M. Coates, R. Voss, B. (2002). The Impact of Restorative Justice Conferencing: A Review of 63
Empirical Studies in 5 Countries. http://ssw.che.umn.edu/rjp/Resources/ Resources.htm.
Van Ness, D. and Strong, K. H. (2001). Restoring Justice (2nd ed.), Cincinnati, OH: Anderson Publishing Co.
Walgrave, L. (2000). How Pure Can A Maximalist Approach To Restorative Justice Remain? Or Can A
Purist Model of Restorative Justice Become Maximalist? Contemporary Justice Review, 3(4): 415-432.

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COUNTRY REPORT: PAKISTAN

Abdul Latif Khan＊
I. VICTIMS OF CRIMEIn Pakistan, the present criminal justice system is primarily based upon the codified penal and procedural
laws designed by the British masters in the colonial era of British Indian history. It includes the Criminal
Procedure Code of 1898 and Penal Code of 1860. Since these criminal laws did not provide for any concept of
restorative justice we have not inherited a system having any such provisions. Our system is still based upon
the accusatorial principle i.e. the state is a party in any criminal transaction. Punishment of the offender as arule has been provided as the only penalty for the criminals instead of extending any relief/remedy to thevictim. It truly speaks of the underlying objective that the state is interested in maintaining ‘order’ and writof the state in the society instead of taking care of the victim.
A. Statutes
However in the course of development, Pakistan as a country tried to improve the inherited criminal laws
to make them more consistent with and beneficial for the society. In brief, these codified changes are:
1. Qisas and Diyat Ordinance“Crime of retribution and compensation (Diyah) involve homicide, bodily injury or other forms of harmcommitted against the physical security of the person. Homicide is of three categories: - It may be premeditated, involuntary, or voluntary. Only pre-meditated homicide involves a penalty under the law of Qisas.
Qisas refers to a specified punishment in Quran and Sunnah. They are labeled as such because thepunishment imposed is either a just-retributive penalty equivalent to the injury inflicted on the victim, or
takes the form of pecuniary compensation (Diyat) for the victim’s injuries. Diyat is imposed only if justretribution is not executable or the victim waives his right to demand it. The decision whether or not toprosecute rests with the victim and his relatives. In the event of a conviction they have the choice between
the sanction of retribution or exacting compensation or pardoning the offender altogether. In the last eventthe court reserves power of discretionary punishment of the offender.
The Quran has described a very important principle of civil law, i.e. equality of men and the necessity ofawarding proportionate punishment to all offenders, without distinction, unless and until the offender ispardoned by the relatives of the victim under circumstances that are expected to lead to improvement ofconditions.
The Islamic law of just-retribution provides a very effective and practical means to put a stop to murderand safeguard human life. A man who shows a callous disregard for the life of a fellow-person loses his rightto live. The option to pardon allowed to the heirs of the slain person, should not be regarded as likely to
encourage murder, for such option is not synonymous with exemption from punishment as in ordinary
circumstances the murderer will have to pay the blood-money. Moreover, the would-be murderer possesses
no means to know that the heirs of the person whose murder he contemplated will actually be persuaded topardon him; so the fear of capital punishment will always be there to deter him from the commission of thecrime. Again, pardon or remission is permissible only where the circumstances are such that the pardon orremission is likely to improve conditions and bring about good results for all parties concerned.
To prevent crime, Islam really aims at the elimination of the conditions that cause it. It seeks to remove
the very root-cause of all crimes by working a complete moral reformation in man. But it does not remain＊

Deputy Inspector General of Police,
Mardan Region,
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content with that. It also prescribes deterrent laws in conformity with the dictates of reason, justice andhumanity.
The individualization of punishment under Islamic law is fundamental, whether as to Hadd, Qisas or Tazir.
The Diyah, by contrast, is not strictly punishment, but is in the nature of compensation, which must be paid
to the victim as reparation for injury. It is sometimes confused with punishment because the amount ofcompensation is specified in advance. That practice is evidence of the firm adherence to the principle.
Difference between Qisas and Revenge
There is a difference between Qisas and Revenge. In revenge, the punishment inflicted on the offender isneither equal nor similar and some times innocent people can become a victim of revenge. While in qisas theequality of quantum of crime and of punishment is strictly adhered to. The law requires that a person shallnot inflict a greater degree of harm than that which has been inflicted. If equality in awarding punishment by
way of qisas is not practicable or possible then some other punishment is awarded. Secondly the process ofrevenge goes on between strong and weak while qisas is awarded by the order of the court and the entire
community is under an obligation to help the victim until qisas is executed.
Preference of Diyah over Qisas
As between Qisas (just-retribution) and Diyah (blood money), the Quran clearly indicates the preference
for the Diyah and forgiveness. Islam recommends reconciliation in murder cases so that peace and tranquility
emerges ultimately. Murder is a compoundable offence under the existing law.
Thus, the combination of Diyah and forgiveness produces a powerful material and spiritual inducement toforsake Qisas as retaliation. Consequently, one must interpret the crimes of Qisas as being based on a
general deterrence policy which recognizes the victim’s sense of vindictiveness against his aggressor, while
limiting the consequences of the penalty to the harm done and establishing the alternative remedies of victim
compensation or outright forgiveness.
Qisas in Hurt Cases
The law includes many detailed provisions regarding cases of hurt and “Itlaf” (total or partial damage to
any limb or organ of the body) and has provided for “Arsh” “Zaman” and “Diyah” as various modes ofcompensation.
In cases where extreme punishment of Qisas is not an adequate relief, Diyah is payable according to theyardstick fixed by law. At times, the full amount of compensation in the form of Diyah is payable to theaggrieved whereas, at other occasions, only a proportionate amount of Diyah is recoverable. If, for instance,
the sole organ or limb of a person is totally damaged due to the act of an individual and he is deprived ofmaking use thereof permanently, the full amount of Diyah would be recoverable. The cutting off of the nose
etc. of an individual can be quoted as an instance. If both organs or limbs like hands, eyes, feet are damaged,
full compensation in the form of Diyah would be payable but if one of the two is damaged then proportionate
Diyah to the extent of one-half would be payable. This principle would follow in other cases as well.
It should be noted that in certain circumstances, a fine could only be imposed if the damage caused is of anegligible extent. If a person has, for instance, six fingers of a hand and damage is caused totally or partiallyto the sixth additional finger, no compensation in the form of Diyah can be recovered. But the aggrieved
person can only approach the court that shall award him reasonable compensation by imposing a fine on theoffender. Similarly, if certain damage is caused to a sexual organ of an impotent male person, the victim canonly be compensated by way of payment of a fine because it cannot be said that he suffered an irreparable loss.
The fact cannot, however, be lost sight of that in certain cases a larger amount of compensation by way of
Diyah can also be granted if the damage caused is of an extensive nature. If, for instance, one of the teeth outof 32 teeth is initially damaged but the said damage has also adversely affected the remaining 31 teeth, theoffender must compensate the victim for the damage caused partially to the said 31 teeth.
Other Expenses Recoverable
It would be an injustice to the victim, if he is not awarded compensation for the injuries sustained, butrather left to expend his own money on the treatment of the inflicted injuries. The present law is not
oblivious to the practical difficulties and the hardships of the victim and has specifically provided that thevictim must be given adequate relief and compensation for the following: 1. Hospital expenses.
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2. Pain and suffering caused by the injury and3. Pecuniary loss.
Provision for Negligent Driving
Negligent Driving and other rash acts causing hurt entail criminal punishment under the law besides“Arsh” and “Daman” specified for the offence.
AaqilahSometimes an offender may be helped by his community to pay the blood money. When death has beencaused by negligence or mistake, Aaqilah of the offender i.e. those who have a common interest with theoffender arising out of their profession or simple neighborhood or the merchants who occupy premises in thesame market, must pay the blood money to heirs of the deceased. The reason is that it is the duty of the person’s
Aaqilah to watch over his conduct and the law presumes that the wrongdoer would not have acted in the way hedid, unless they neglected their duties. In this way his community has been burdened with the so-called light
penalty.
Qasamah
To prevent crime and making every locality conscious of being a helping hand in the overall objective ofgood order in society another novel concept has been introduced by the law, which is called “Qasamah”.
It is a general term for oath. As Qasamah means, “to divide”, we seem to have here the usual transition
between the meanings to cut and to decide so that Kasam’ would be the deciding, strong word.
If a dead body is found in a certain locality with signs of foulplay on it the heirs of the deceased are entitled
to select a maximum of fifty inhabitants from the place to take an oath that none of them killed him. If theytake the oath then the competent court of jurisdiction has the discretion to nominate several or all of the
inhabitants for the payment of blood money. Whoever refuses to take the oath shall be kept in simple
imprisonment until the time of his confession, or his willingness to take the oath, or disclosure of information
pertaining to the real murderer. Similarly, if a dead body is found at the door of a man’s house he will takethe oath and if he swears that he did not kill him, then the court will decide as to whom is liable for thepayment of Compensation.
GhurrahGhurrah (compensation) is due in the case of destruction of an embryo or a fully formed child still-born asa result of assault suffered by the mother during her pregnancy. Thus the law provides an effective remedy
in case of injury to unborn children.
From the above discussion, it is vividly clear that the Penal law of the country has provided ample
opportunities of compensatory justice to the victim in the shape of Qisas, Diyat, Arsh, Zaman, Aaqila,
Qasamah and Ghurrah. As mentioned earlier no homicide, hurt, injury or damage remains uncompensated,but despite the prevalent law, the ideal results in the area of restorative justice are yet to be achieved.
2. Haddood Ordinances of 1979
Hadd means to check or stop. It also means measure, limit and in law it means a punishment, themeasure of which has been definitely fixed by the Holly Quran and Sunnah i.e. by the Holly Prophet (peace
be upon him). The major crimes covered under this category are theft, robbery, illegal sexual intercourse,
drinking of alcohol etc.
Since Islam as a religion carries a full social system in its lap, therefore it has provided a complete societal
restorative system for the tranquility, harmony and health of the society as a whole. In Pakistan, offences
against the Property Ordinance, Zina Ordinance and Prohibition Order envisage such provisions. A detailed
discussion of these laws will infringe the remaining topics.
In Islam the various categories of punishment have been prescribed according to the nature, type, and its
impact on the society or the individual victim. If the offence infringes the rights of Allah or in other words if it
is against the good order and welfare of the entire community then the punishment is harsh. If it is a matter
concerning the individual then leniency can be adopted, which may even include forgiveness by the victim
and his family, as well as patching up of the matter through compromise.

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B. Pilot Programmes or Schemes for Crime Victims
As far as pilot programmes or schemes meant for deliberate or concerted efforts on the part ofgovernment are concerned, no such initiative has been taken or is in the offing. Statistical information or
evaluation of outcomes is therefore out of the question.
C. Measures to Protect Victims of Crime
In Pakistan victims of crime can only be protected through tougher bail conditions and the police by therequest of and at the victim’s expense. Similarly there is no quasi-legal setup for swift victim restoration.
Compensation paid by the offender after compromise reached through the efforts of elders/notables of thelocality is the only restoration. We are not in a position to provide separate rooms in courts for victims,
witnesses and offenders. Victims of crime have to appear before the court of law in order to record theirstatements. Similarly there is no organizational set up for any immediate and direct support for the victims ofcrime.
D. Participation of Victims in the Criminal Justice Process
The victim has a right of complaint, right to arrange a private prosecution for his case, and a right torecord his statement in the court of law. If he has entered into a compromise with the offender, on thevictim’s request the offender can be released in compoundable cases.
E. Provision of Information to Victims of Crime
The law of Pakistan provides for the giving of information to the victim of crime at different stages in acriminal proceeding. At the time of registration of a criminal complaint he receives a copy of the registeredFirst Information Report. On the eve of arrest of the offender, he is called for the purpose of an identification
parade. As per the law the state is bound to inform the complainant at the time of submission of the complete
case file to the court for trial.
F. Problems
1. Lack of Governmental Interest
Pakistan, as a country, has not been able to formulate any such deliberate programme or scheme toprotect the rights of victims. Nor is it on the agenda to envisage a targeted law for such an issue. Why is thismissing? Frankly speaking, it is not a priority of the government. Firstly we as a country have been
struggling for political stability since independence in 1947 and have not been able to strengthen our cardinal
institutions. Secondly, financial constraints of the government hamper any such initiative.
2. Divergent Social Conditions
In a country, which is heterogeneous in social systems, geography and ethnicity, it is not possible tofollow an agenda of directed change as is required to provide for a victim protection system.
3. Illiteracy and Backwardness
Since the conceptual framework for the purpose is missing, development of institutions is unthinkable.
Such concepts are concomitant with the economic development that, in turn, is dependent on the educationlevel and infrastructure of a country. We as a country are still living in a developing stage having a low
literacy rate, battered governmental institutions and backwardness. We are suffering from some intrinsic
handicaps since independence, which have inhibited us from progress.
4. Lack of Community Interest
On the other hand, individuals or community organizations are also not interested in the phenomenon. In
fact there is a problem of awareness. We as a society have not been able to take up the issue. Sporadic
efforts are there, for example some NGOs are working for rape victims or against child abuse. But their roleis negligible, cosmetic, and dubious in nature.
G. Solutions
1. Awareness Campaign
Although the concept is concomitant with the development as discussed above, an awareness campaign
could be started for the issue, and it would definitely serve the purpose. The first step in achieving theobjective should be conceptualization of the issue. This would be through interaction with those people who
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are running the system in different developed countries. The Present seminar will provide an opportunity formember developing countries for conceptualization of the issue. Such seminars will trigger an awarenesscampaign and development of crime victim protection institutions will follow.
2. Role of Community
Since the government of Pakistan is not in a position to prioritize the issue, the role of community-basedorganizations has become more important. Developed countries as well as individuals of the society should
dole out funds and human resources for the establishment of restorative institutions.
3. Role of Government
On the other hand the legal aspects required for the development of crime victim institutions should becovered through legislation by the government. Deliberate and concerted efforts are needed on the part of
the government in order to provide a legal framework and motivation to the community based organizations
for taking up the issue.
II. RESTORATIVE JUSTICE APPROACHES
A. Current Situation
Restorative Justice as such is a new and emerging concept having a bearing upon the restoration andrehabilitation of crime victims and offenders. It can be defined as a systematic response to wrongdoing thatemphasizes healing of the wounds of the victim caused or revealed by crime. It is not a quasi-legal pluralist
alternative to the modern juridical order. It is a middle-range paradigm, a stabilizing influence fostering
confidence in mainstream legal and political institutions.
In the backdrop of the above-mentioned concepts, Pakistan as a country is not following a deliberate andspecific programme for achieving a restorative justice system. However the present laws related tocriminology envisage provisions, which can become the basis for adopting a balanced restorative justiceapproach. These laws include;(i) Qisas and Diyat ordinance: as discussed in the previous pages.
(ii) Juvenile Justice System Ordinance-2002
In a deliberate effort the government of Pakistan has enacted a law for Juvenile delinquents. The main
thrust of the law is on restoration, and rehabilitation of teenagers who are booked under certain offences sothat they can again become useful members of the community.
1. Salient Features of the Act
Although deficient in certain critical areas, the Act incorporates several provisions that add to theprotections afforded to children under domestic law. These provisions include:(i) Requiring provincial governments to establish one or more juvenile court for each local area, with
exclusive jurisdiction over cases involving children.
(ii) Granting children a right to counsel at government expense and providing that court-appointed
counsel have at least five years of standing in the profession.
(iii) Prohibiting the imposition of the death sentence, amputation, or whipping of children, or assignment
to hard labour while in a “borstal or other such institution”.
(iv) Prohibiting the imposition of handcuffs, fetters, or corporal punishment on children” at any time
while in custody.
(v) Prohibiting the arrest of children below the age of fifteen under laws relating to preventive detention
or vagrancy.
(vi) It specifies the persons who may be present during a juvenile trial, and prohibits publication of theproceedings of a trial without the juvenile court’s authorization.
(vii) Immediately upon the arrest of a child, police must notify his or her guardian as well as a probation
officer, who is to prepare “a report on the child’s character, education, social and economic background”.
(viii) On taking cognizance of an offence the juvenile court shall decide the case within four months.
B. Absence of Targeted Programmes
As far as targeted programmes like VORP or VOM or FGC are concerned, these are post-dated concepts
for our country. We have the basic laws which provide a foundation for a restorative justice system but suchprogrammes need more awareness, community participation and the will of the government. We do have the140123RD INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS
conciliatory committees, peace committees or mediation councils but those are informal and specific tocertain communities of the country.
C. Conducive Conditions
Conducive conditions for adopting a diversion system for restorative justice vary from social group tosocial group. Pakistan as a heterogeneous country cannot follow a uniform approach for the purpose. It is fullof divergent social setups having their peculiar norms of taking on the victims of crime and offenders.
D. Fate of Outcomes of the Restorative Process
Outcomes of a restorative process are, legally speaking, bound to be ratified/validated by a court of law if alegal process in a certain crime case has been put into motion. However, it is a well established judicial
practice in Pakistan that decisions coming out of a restorative process are ratified & validated by the court oflaw especially in compoundable offences like murder, etc.
Though criminal law or procedure in the country does not specifically provide for such restorative process
the compoundable nature of certain offences allows the adaptation of the restorative process.
E. Ensuring Clause
Different social groups ensure out of court settlements as the courts in Pakistan entertain the outcomesof a Restorative process.
Social pressure in the phenomenon is an ensuring clause. However courts are not bound to necessarily
ratify the compromise.
F. Problems and Solutions
Pakistani society as a whole enjoys a well established family system and tribal affinities. We are wellinterwoven in our social groups, especially in rural areas. Resolution of conflicts and problems through acommittee of elders (conciliation committee) has been a norm in our rural areas since long ago. We are notfacing the problem of anomie or “Lonely crowd syndrome” as is faced by the developed world specially thewest. Therefore adopting a well-defined restorative justice approach is not as difficult as it would be in thewest where ‘ neighborhood’ does not exist. However, since we are passing through a transition phase inwhich urbanization has been a hallmark, therefore family institutions & primary groups are bound to break.
We are going towards the stage of “Lonely crowd syndrome”. Therefore I see this time as ripe for adopting
modern techniques & approaches of the restorative justice process.

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COUNTRY REPORT: PAPUA NEW GUINEA
Noel Sarei＊
Ⅰ. VICTIMS OF CRIME
A. Current Situation
1. Papua New Guinea Legislation
Papua New Guinea has legislation policies, which are directed at the protection of victims of crime. The
Papua New Guinea Constitution speaks of the Basic Rights of all people (Division 3. Basic Rights. Sections
32-56) but not specifically on the ‘victims of crimes’. The Papua New Guinea Department of Attorney
General in its 2000 Policy on Community Corrections further made a commitment to protect the victims ofcrime in Papua New Guinea. The ten year plan – The National Law and Justice Policy and Plan of Action
2001-2010 entitled Towards Restorative Justice pursues very strongly the development of a Victim Support
Policy. The Policy states: “Developing a Victim Support Policy promotes another goal of the law and Justice
Policy. That goal is to bring the victims of crime and conflict back into the centre of the law and justice process.
All too often, victims are either ignored or sidelined under the current system. A vital step towards restoring
confidence and genuine fairness in law and justice processes is to recognise the injury suffered by victims and tosupport when appropriate”. The aim of this policy is to evaluate and strengthen the existing support
structures such as the women’s refuges; Police Sexual Offences Section; the parole and probation; Life Line,social workers at the hospitals; the churches; criminal compensation; the courts; and the non-governmentorganizations who are taking the lead to provide assistance to the victims of crime.
2. Customary-Traditional Laws
In addition to the legislation, in the 865 plus ethnic communities in Papua New Guinea, there is what iscalled the Customary/Traditional or Tribal Laws, which protect the victims of crime in the individual
communities too. The cultural laws are the unwritten laws of the original people-the inhabitants of Papua
New Guinea. The Papua New Guinea Constitution allows for the practises of the customary laws; however,
it is applied only at the village level and not in the urban areas. The customary laws are only practiced in asociety which has the same common norms and values, and the process of the application of the customarylaws. Customary laws have been in existence and practised by the common group of people for thousands ofyears.
3. Non-Government Organizations Support
Local non-government organizations like Life Line, ICRAF, Peace Foundation, the Salvation Army, andthe Christian women and women’s associations also provide shelter, legal assistance and counselling tovictims of crime. The churches in Papua New Guinea also offers spiritual, moral counselling, shelter andmaterials to victims of crime. These are done on a temporary basis.
(i)

Current Situation in Relation to the Protection of Victims of Crime
Customary-traditional (laws) system
In the Traditional System (commonly called the Customary-Traditional Laws), the victims areprotected from further harm (physical, mental, and spiritual) by the Chiefs, Council of Chiefs or, Councilof Elders, their immediate families and extended relatives depending on which region of the country
where these laws are practised. The victims are compensated using the traditional laws, throughpaybacks, sorcery and witchcraft, or through the traditional ways of mediation, and through exchange ofgoods and materials, to compensate for the shame, the loss of life, or injury suffered by the victim.
Formal courts＊

Senior Rehabilitation Officer,
Papua New Guinea Correctional Service,
Papua New Guinea.

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In the formal courts of law, the victims are protected by the state whereby the offender is remanded incustody without bail. Again depending on the severity of the offence committed, the offender has theright to bail. It is the police that protects the victims and their witnesses, however there is no
confidentiality and privacy for victims or their witnesses in giving evidence, or even attending court cases.
There are no special services provided by the Government (Papua New Guinea Government) towards thevictims of crime. They are treated like any other citizen of Papua New Guinea, who stands before thecourt, in the presence of those in attendance, in giving evidence. The NGOs, the churches andtraditional societal laws help the victims. Families and friends of the victim offer security, moral andspiritual support to the victims.
(ii) Current Situation in Relation to the Active Participation of Victims in the Criminal Justice Process
The victim has the right to lay a complaint to the police through the formal laws. The victim has theright to lay complaint through the traditional laws for hearing and seeking retribution or other forms ofpunishment as governed under the traditional laws to the Chief, or the Elders of the community.
There is no private prosecution for victims/offenders. The police deal with the victim’s complaint
and if the complaint is justified, the offender is placed on trial. The victim has the right to withdraw thecase and sort the complaint through other forms of alternatives to imprisonment like restitution, which isthe common practice of the Papua New Guinea society. The victims do have the privilege of having a
say on the release of the offender; whether the offender should or should not be released. But the final
decision comes from the State through its agent, the parole board. The victim has the right to seek
compensation to recover loss or damages in material, or money terms for bodily harm, or loss of
belongings. Other forms of punishment and correction are made by the formal courts. The Papua New
Guinea Criminal Code also allows for compensation to victims and families of victims.
(iii) Current Situation in Relation to Providing Information for Victims of Crime
There is no information system in place in Papua New Guinea to assist and keep the victim informedof the process taken in the initial investigation, trial and conviction. The police carry out theinvestigations and information is only given when necessary. This means that if the police require more
information from the victim, they will interview him/her again without fully informing the victim of theoffenders/witnesses statements.
Furthermore, because of the lack of networking system amongst the major stakeholders within thegovernment, the people, the non-government organizations, and the churches, it is difficult to know theactual total number of victims who have been given assistance by these agencies. In saying that,
individual agencies do have their own registers, registering the victim’s names and the nature of theircomplaint.
B. Problems
1. Lack of Strengthening of Existing Support Structures
The fundamental problem now is the immediate need to strengthen the existing legislation through thereform, which is currently taking place within the law and justice sector. The problem is based on thecurrent ad-hoc arrangements, which are practised, by the law and justice sector, the non-governmentorganizations, the churches, and the people living in the villages, towns, and cities in Papua New Guinea.
These agencies are operating separately and in isolation from each other. Although they come together
during seminars and workshops to present and exchange information, there is also the need to exchange,
share and support each other through technical and human resources. At the moment, it is difficult tomanage, to monitor, or even evaluate the services that are provided to the victims of crime by thesenumerous agencies. On the same note, there is no information system, set up in the country to assist inproviding reports and statistics on the number of victims and the kind of assistance offered.
2. Non-Recognition of the Dual Law System – The State and the Customary Laws(i) Limitations of Government Legislation
In addition, Papua New Guinea, as a developing nation, is adjusting itself to the dual system of laws;
the formal (government laws) and the informal (traditional or customary laws), which are practised in
Papua New Guinea. The formal laws do not specifically cater to the “rights of victims” even though
there are provisions in the Papua New Guinea Constitution and ‘The National Law and Justice Policy and
its Plan of Action’. The formal laws are superior to the customary laws but the constitution and the143

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numerous legislation, which are currently in force do not state as to what extent. There is no clear
demarcation between the government’s legislation and the customary laws.
(ii)

Limitations of Customary-Traditional Laws
The informal law is an unwritten law governed by the principles of traditional norms and values where
each ethnic group in Papua New Guinea exercises, to address problems (land disputes, marital issues,children fighting, rape cases, stealing of crops, domesticated animals, cutting of timbers on someone’sland, killing of a person during disputes, murder etc.) at the village (hamlets) level. The
traditional-customary laws are only exercised by people with the same traditional norms and values andwho have the same local language and customs, and practise by other people (through marriage, or
adoption) who understand the traditional norms and values of a particular ethnic group, and recognise andaccept them as laws. These laws are referred to as “tribal laws” especially by the Aboriginal people ofAustralia and other Asian and middle eastern countries. Customary laws are difficult and actually do nothave a standing in the urban areas or settlements. The customary laws have infinite boundaries becauseof the limitless options that are exercised and which upon mediation are accepted by a common group ofpeople whereas the powers of the government laws are limited.

3. Contrasting Views on Government vs Customary-Traditional Laws
The government’s legislation are laws, which have no feelings and do not have respect over the people.
The customary laws take into consideration the alternatives and options available to the victims and theoffenders before decisions are handed down.
4. Poor Coordination of Law Enforcing Agencies within Multi-Racial Groups of People Living in Settlements
And on the other side, there is a very thorny issue, which involves people of different ethnic groups livingin the same location (settlements). It is very difficult to apply customary/traditional laws to sort out
problems amongst these multiple groups of people. There is a lack of long-term coordination of law
enforcing agencies to coordinate and control the lawlessness in the settlements especially in Port Moresby,
Lae, and Madang. On most occasions the law enforcing agencies like the police ignore the trouble that crops
up at the settlements. And this is due to either manpower and most importantly, its non-presence (thepolice station and police officers living amongst the people) at the various settlements. Lack of such vital
services only adds to the rise of lawlessness.
5. Isolation of Non-Government Organizations
Non-government organizations, in their own ways are contributing a lot to providing assistance to victim
of crime and also to the offending persons. Unfortunately, all of these organizations tend to work in isolationfrom each other. The methods, which are used by them, also vary because of their specific visions and goals,
and this creates animosity amongst individual organizations.
6. Poor Information Dissemination
Another problem is the lack of information dissemination to the people at the urban and village levels.
The government lacks the resources to disseminate information, which is necessary for the people tounderstand, including the rights of the victims of crime. The majority of the people (85%) in Papua New
Guinea live in the rural villages and only about 15% live in the urban areas. The government system,
because of financial problems could not set up or even improve the existing infrastructure such as roads,
healthcare, education, law and justice agencies, and police stations. Due to a lack of such vital infrastructure,
the communication between the people and the government could hardly take place. People tend to settle
problems at their own level either with, or without the presence of the law enforcing agencies.
C. Solutions
The Government should seriously look at the legislation through relevant agencies, which are theDepartment of Social Welfare and Development, the Attorney General, and the police, to formulate legislation
to protect the victims of crime. Non-government Organizations, churches, the victims themselves andrehabilitated offenders should also be consulted to provide opinions that will help in the formulation oflegislation on the policy of the protection of victims.
The traditional-customary laws should be strengthened and be formally recognised and accepted by thegovernment. This will enable Papua New Guinea to operate a “dual law system”; the formal and the
traditional-customary laws. There is an immediate need to set up information technology that can be shared
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by all the stakeholders in Papua New Guinea for future planning and policy directions, earmarked to serve theinterests of the victims of crime.
D. Future Prospects
It takes the will and commitment of leaders and people to work together, to protect the victims of crime.
The mechanisms of implementation of policies lies with the policy makers and those who are in the position
to disseminate information to the rest of the people in both the urban and rural areas. The government andthe customary laws should work hand in hand together, with a clear set of responsibilities highlighting thepowers of these two sets of laws and their jurisdiction boundaries. All stakeholders should work together,to help and assist each other in information, technical and human resources towards a better working
relationship for a common cause-helping the victims of crime in Papua New Guinea.
II RESTORATIVE JUSTICE APPROACHES
A. Current Situation
Currently there are no recognized or formal established, legislated procedures or structures to enable thepolice, correctional service, the probation office, youth and social development department and other related
agencies to work together to process a restorative justice approach. But there are relief agencies such as
the Melanesian Peace Foundation, Salvation Army, National Council of Women, ICRAF, the churches, andothers but their help is very much on a small-scale level.
The government has taken steps to create conditions for its social partners to organise and operate freely,with improved accountability measures that can be taken to promote restorative justice. The Papua New
Guinea constitution and directive principles and national goals recognise that traditional villages (hamlets)and communities to remain as viable units of Papua New Guinea society require active steps to be taken to
improve their cultural, social economic and ethnical quality.
1. New Directives
In 2000, the National government of Papua New Guinea endorsed a major policy setting the directions
for law and justice into the future. This policy recognises that criminal behaviour is a largely youthful andmale phenomena and its underlying philosophy is based on restorative justice. The following quote from thepolicy illustrates the nature of restorative justice within the policy:“The policy adopts the concept of restorative justice as a core rationale for the long-term future of the law andjustice sector. This is the rationale or philosophy that links the work of all the law and justice agencies and otherrelevant groups in the community concerned with the promotion of peace and good order. The policy proposes a
gradual and deliberate shift away from past approaches that have been retributive and adversarial in character.”“Restorative Justice is a problem solving, forward looking approach to crime and conflict. It can be contrasted
with the backward looking focus of most criminal justice systems, which tend to concentrate on establishing, who
was to blame for a particular act that has taken place. The restorative approach represents a change from anadversarial and retributive orientation to one of cooperation and partnership between the various stakeholders in
the promotion of peace and good order. Restorative justice envisages a central and active role for the community
in the maintenance of peace and resolution of conflict. ”
2. Restorative Justice is the Ancient Law of Papua New Guinea
Restorative justice is a method of dealing with conflicts in communities. It was the normal process inPapua New Guinea before the village courts were introduced and recently it has been discovered by the legal
system in New Zealand (Aotearoa), Australia and other places. As the name suggest its aim is to restore thecommunity, the victim, and the offender so that reconciliation and forgiveness can be restored.
3. Restorative Justice Process Plays a Complimentary RoleAt a close examination we may observe that this concept resonates with our traditional modes of dispute
resolution in Papua New Guinea societies. Most importantly we can observe that it promotes a more humansolution by involving everyone who has a say to express themselves. While in the developed countries thathave been using the modern formal systems they are just recognizing restorative justice. In Papua New
Guinea, most of our rural population continue to use solutions to settlement of disputes and conflict from our
traditional society that easily fall within the restorative justice framework in everyday life. The national law
and justice policy merely recognises that Papua New Guinea should examine the existing approaches in our
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traditional society, and should reinforce them into practice in the modern justice system. The concept of
restorative justice is not new to Papua New Guinea. It embodies many of the values and practices familiar in
our traditional societies. As such it provides a framework for building a more responsive and sociallyappropriate system of justice that is capable of meeting the challenges that lie ahead. Most significant of all,the restorative justice vision resonates with that of the highest law in this land: the constitution of Papua New
Guinea. It represents a real attempt to develop a system of law and justice that is truly Papua New Guinea
in spirit and practice.
4. Restoration is an Art of Melanesian Practices
The Melanesians people have used mediation and restorative practises for thousands of years in dealing
with conflicts of all kinds. Methods varied somewhat from place to place and sometimes the ways ofcustoms were a bit rough and ready, and contained elements of retributive justice, such as cutting off fingers
or cooking a mans feet to make him confess to sorcery. This is not surprising because all systems can be
expected to fail under stress from time to time. However custom did work and was usually just.
In the present system in the villages of Papua New Guinea, there is a structure that operates within theframework of the Villages Court Act that consist of a village magistrate and a police constable. The village
constable is usually the ‘big man’ in the village and the advisor is the traditional position of the village. The
position is not for a single man or woman, this is simply because they may have a conflict of interest, or
unwilling for fear of offending others and also they refuse to work if the government fails to pay them.
5. Process of Melanesian Restorative Justice
Restorative justice in a Melanesian way uses three processes by their dealings with one another.
Consensus is the need to talk about the matter, provide all stakeholders with a chance to express their views
and come to a decision which provides some benefits for all. The parties are allowed to tell their story again
during the meeting but when parties meet separately they are not allowed to bring up the story again during
the meeting this can sidetrack the important part which is the reconciliation.
Win –Win Mediation is the concept used when two parties are in conflict over a matter such as adifference of opinion over land, property, children, or family differences between churches, these are best
settled by win-win mediation. Mediation must avoid shame otherwise to save face in the sight of thecommunity the losing party will be generally obliged to find some way of payback. To Melanesians a
win-lose decision is abhorrent.
Custom Law: (Restorative Justice) Is the process, which concentrates on mending the broken relationshipthat brought about the crime and brings a peaceful solution of healing back to the village. This is done when
the offender is confronted with his action, which has brought harm to others. The confrontation brings
shame to the offender and so that questions can be asked for forgiveness and agreement to restitution. The
offender can now be reunited with the victim and the community through a ceremony of forgiveness.
Custom law is used when one person commits an offence against another. Many traditional methods arevery good, (a meal for reconciliation) checkpoints are also used as preventative measures this is done throughextended families. Hence if there were a conflict in the family, a relative would pay visits to check there isnormalcy.
6. Restorative Justice Relationship with the Government Initiatives
Restorative justice is not a stand-alone, isolated system; it should have a relationship with government
initiatives and the criminal justice system operation. Therefore there has to be a recognized structure inplace with the criminal justice system and all new initiatives stated in the new national law and justice policy,
which include: justice centres; non-custodial sentencing and rehabilitation; increased community
participation; crime prevention; human rights; and corruption, so that it will fully implement the process ofrestorative justice. In addition attention should be given to the rights of women in the justice system, theissue of development, recognition of informal institutions that prevents criminal acts, and local levelgovernment reforms.
7. Can Mediation and Restorative Justice Replace the Courts?
There are numerous cases where the court system is the only road to follow. Mediation and restorative
justice can only be used when both parties agree. Mediation and restorative justice cannot be used in a caseinvolving compensation, which looks to making a profit. Any case where the person does not admit his guilt
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must go to a court so that witnesses can be called and evidence produced. Also in the constitution of Papua
New Guinea it asserts that there has to be rejection of violence and seeking consensus as a means of solving
common problems, hence it is crucial for the government to put in place mechanisms and systems forresolving conflicts and to be able to respond quickly so as to avoid further escalation and stimulation ofvolatile situations. The concept of restorative justice is a key initiative aimed at solving problems throughconsensus. In light of the concept of restorative justice the practice has been very successful in
Bougainville in terms of reconciliation, mediation, and actual training to solving conflicts. There has been a
lot of effort that made the process successful and because it really suited the traditional norms and values interms of solving disputes.
8. A Case Study on Bougainville (see Appendix)
During the Bougainville crisis there were no courts because those few people with weapons reigned inanarchy, so the people went back to the traditional way of solving disputes. That time there was a
non-government organization on the island called Peace Foundation Melanesia who took the initiative andbegan conducting training and activated the concept of restorative justice which the majority of people who
had been using the customs law started expressing themselves that the idea best suited the Melanesian way
of solving disputes. Restorative justice in the context of Papua New Guinea has been proven to give thevillages (Hamlets) a chance to reaffirm their values and mend relationships, it is also cheap; there are no legal
fees for lawyers, etc. It is traditional, it is effective and people generally prefer it. Unfortunately there are
no records because people thought that it was ‘in the blood’ and didn’t use written records. But time hasbrought changes and now there is a high demand for records of peace ceremonies, reconciliation, mediationand other restorative justice related events that will shape the future sustainability, improvement andimplementation of restorative justice. The main contribution of Western world restorative justice was toprovide a firm point-by-point process to follow to obtain the best results of restorative justice. The essential
Melanesian contribution is that the community is a major stakeholder and must be actively involved.
9. Penalties
In mediation and restorative justice the parties decide for themselves what they must do to make up forthe wrong. Restitution is expected in restorative justice: e.g., “A pig for a pig and a house for a house”.
Money stolen by a person at any level must be returned. If the individual is not able to meet the restitution
then the burden falls on the extended family.
10. Compensation Payment
One particular practice, which appears to be fast developing in Papua New Guinea especially in thehighlands of Papua New Guinea where compensation is widely practiced, is the payment of customarycompensation by the offender to either prevent the matter being reported to the police or the authorities.
Money compensation is a very bad way of making up for the wrong done to a person or the community. It is
not traditional and leads to bigger and bigger payments and there is no sorrow or forgiveness, as the victims
become more and more money face. There will be times when the community will be unwilling to forgive
the person immediately. Offences such as murder, rape, and incest cannot be settled easily. In this case adecision may be made whether to exile the offender for a time and make arrangements for reconciliation andforgiveness when he returns after a set time. Another traditional payment for murder is for the family of theoffender to pay a certain amount of land to buy back the blood. Land can buy blood but money cannot.
B. Problems
1. Unwritten Laws
Custom law in the past has failed because it is not written and so is unable to stand against the written lawof the land. It is therefore essential that the decisions of the mediation be made in writing and be signed byboth parties as well as outside witnesses. The moral and cultural fiber of the society is being eroded
through the extensive use of formal court proceedings.
2. Adverse Impact of Development Trend
The rapid change process brought about by modernization and development while it has brought many
benefits, it has been at the expense of the peoples’ spiritual growth as evidenced by a weakening of thecommunity spirit and environment, corruption, cultural confusion and others. This has generated feelings ofinsecurity, fear, and distrust in the hearts of people and led to civil conflict as a lead up to lack of enforcementof the constitution.
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3. Failure of Innovation and Accountability
Also the existing centralized system of government administration (including political aspects) at alllevels needs to be improved upon in terms of accountability and innovativeness in dealing with the country’s
cultural and geographical diversity, in considering the restorative justice approach.
C. Solutions
1. Political Commitment and Responsibility
There are wide ranges of solutions for the concept of effective restorative justice implementation in Papua
New Guinea. Political commitment and responsibility will be necessary to direct financial and technicalresources to restorative justice. This support has to be consistent over the long term as many good projects
and activities have been made ineffective by severe budget cuts, and lack of continuing support from changing
governments; as a matter of fact everything starts with politics and ends with politics.
2. Deliberate Legislation Intervention
Deliberate legislation interventions are required to ensure that restorative justice serves to improve thequality of life of all the citizens and that it progresses in a fair and equitable manner. The government willneed to review its legislation and policies and identify ways of establishing a core restorative justicedepartment for processing and administration purposes.
3. Effective Governance
Effective governance also means being responsive to what the norms and values of society requires. We
learned from previous cases that minor offences which can be solved through community justice have been
an after-thought, but the consultation and social participation by the local communities must be an integral
part of the decision making process from the start, concerning all matters that will affect the process ofrestorative justice. The people and the government need to be made aware (in an empowering way) that
restorative justice is not just the responsibility of the government but also the civil society, non-governmentorganizations, churches, individuals, community, and interested groups.
4. Community Empowerment
Encouraging people and agents of the civil society to participate in the process of restorative justice does
not just mean decision by consensus. It can be as simple as giving people an opportunity to have their say.
The government’s role should be to establish the processes of restorative justice and mechanisms necessary
for promoting civil participation, to facilitate this process and to ensure that resources are directed to groups
and individuals to undertake their work.
5. Information is an Important Mechanism
There is a need for information that is relevant, accurate, and reliable in order to be able to plan, monitor
and evaluate the impact of restorative justice development. Having an informed society or government isnecessary for understanding the nature of down falls and the trends that may occur as disturbing mechanisms.
This will enable the government to make policy choices based on unshakable facts rather than assumed facts.
Hence not only should ‘bottom up’ feed back be promoted, but also the research community will need to besupported to produce facts that have seeds of new scenarios and action strategies in them; information that is
outcome related.
D. Future Prospects
1. Enabling Conditions for Effective Restorative Justice Practices
The pursuit of restorative justice should not be driven by the desire to improve the country’s
international credibility, for example, but a desire to create a harmonious and healthy society and to put themeeting of their basic human needs first. The furthering of educational training endeavours to equip officials
and advisors with knowledge and skills essential for dealing with developmental planning and administrationof restorative justice.
2. Central Mechanism Organ
The establishment of a central organ, that has the responsibility for improving, maintaining andadministering restorative justice development. The culture of Papua New Guinea has educated andsustained generations of people for thousands of years. It will also mean that a great deal of systematic148

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participatory research into culturally based knowledge and processes must accompany development planning
efforts so that traditional knowledge and ways of doing things can contribute to building effective solutions forrestorative justice.
3. Practical Positive Support
There are many aspects of life in Paua New Guinea, which, if given positive encouragement and practicalsupport, could promote social progress in our country. For instance, the people have a capacity forcreativity and giving, as in all human beings, but many Papua New Guinean still value social relationships
above the desire to acquire material things. The objectives of restorative justice in Papua New Guinea canbe achieved only within a context of enabling conditions that will ensure that peace, harmony, promotion ofhuman rights, public accountability and effective governance of the restorative approach that will build upon
the strength of the existing cultural and social system.
The manner in which progress has been introduced from the modern world raises important questions
about the concept of development in Papua New Guinea. Much of what has been presented to Papua New
Guinea by the outside world as development has brought an imbalance in a number of aspects of integral
human development. It is crucial that the concept of restorative justice be revisited and activated fordevelopment and understood as a process of sustainable improvement, then it is far more likely that future
programmes of national development will be sustainable and will lead to a better life for the people of Papua
New Guinea.
4. Role of the MediaThe media often moulds public opinion and if the media is prepared to do so, it can play a significant rolein the public education as to the proper treatment of restorative justice. This has been very evident in thesocieties of Papua New Guinea where a lot of mediation, reconciliation, peace ceremonies and practices ofrestorative justice have been performed in isolation and without media coverage. It is simply because there
have been a lot of miscalculations on the importance of such occasions which has led to an adverse long-term
impact on the survival of the society.

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APPENDIXThe following is an extract from the author’s PowerPoint presentation at the Seminar.
Map of Papua New Guinea• Population 6 million• About the same size as New Zealand• 800 languages• Largest population is found in the highlands

Bougainville• Population about 160,000• Largest population is in the south• Mountain regions are very cold
• Two active volcanoes

Surrender of Guns

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Three Traditional Processes for Dealing with Crisis Related Crime
1. Reconciliation between groups of fighters and the community.
2. Custom Law (Restorative justice) for dealing with individuals who have committed a crime within thecommunity.
3. Official execution for unrepentant re-offenders.

Common Process for Reconciliation: 1• Reconciliation uses a win-win mediation process.
• In the first step there is no attempt to identify the offenders.
• Mediator shuttles back and forth to obtain agreement that both sides want to end the fighting (Months).

Common Process for Reconciliation: 2• Mediator shuttles back and forth to decide on the details of the reconciliation package –place, gifts,
speakers, who carries out the ceremony, etc (more months).
• Gathering of gifts and all stakeholders from all over Papua New Guinea to give credibility to theceremony.

Common Process for Reconciliation: 3• The two groups meet for the ceremony which is conducted by the chiefs. It is essential that all
parties are given due respect and are satisfied with the process and their part in the ceremony.
• Speeches, exchange of gifts, shaking of hands, outpouring of grief and relief by all present.

Common Process for Reconciliation: 4••••This is just the first step. The step which declares a cease fire - no more fighting.
Further ceremonies continue for years to cement the first agreement.
At some such ceremony the offenders will confess their killing to the families of the victims.
The reconciliation ceremonies may continue for many years.

Reconciliation Ceremony• The outward form of Reconciliation
ceremonies vary from place to place
but the basic process is the same.
• Major reconciliations require chiefs.
• Minor reconciliations are carried out
by appropriate persons.

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Reconciliation at Kunua
Note• The offenders• The victims• The coffin• The pig
• The food
• The witnesses• The chiefs

Execution of Criminals• At present in Bougainville the police are not in a position to deal with men who have gone feral during
the years of crisis.
• A number of traditional style executions have been carried out.
• Some people tell me that it is a much more civilized way than sending a person to jail where they lose
their humanity and are treated as animals by warders and each other and return as hardened criminals.

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GENERAL DISCUSSION PAPER
I. INTRODUCTION
The main theme of the 123rd International Senior Seminar was “The Protection of Victims of Crime andthe Active Participation of Victims in the Criminal Justice Process specifically considering Restorative JusticeApproaches.” During this seminar, we had seven general discussion sessions to identify and clarify problems
and to find practical solutions and future prospects for various issues related to the protection and support ofvictims of crime and restorative justice approaches with the active participation of all participants, visiting
experts from overseas and UNAFEI faculty members.
The essential parts of the discussions were crystallized as the following selected recommendations.
To implement the recommendations, the relevant agencies of the United Nations and UNAFEI may
provide necessary assistance.
II. PART 1 : SUPPORT AND PROTECTION OF VICTIMS OF CRIME
There has been little attention paid to victims of crime in criminal justice systems until recently and theirmain role has been limited merely to being “witnesses”. However, people have acknowledged theimportance of support and protection for victims because victims not only face loss of life, physical injury, lossof property and various kinds of damage, but also suffer emotional shock and stress as well as secondary
victimization.
Under these circumstances, “The Principles of Justice for Victims of Crime and Abuse of Power” wasadopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders
in 1985. The Principles require nations and nationals to have sympathy and respect for the victim.
Therefore, the following goals should be achieved in order to fully implement support and protection forvictims of crime.
(1) To give victims due legal status and establish systems for supporting the interests of victims such as
participation in criminal proceedings.
(2) To provide immediate medical, material, social and psychological support to victims suffering frompost crime trauma.
(3) To ensure that the institutions involved in the process of victim support do not marginalize any
segment of society.
(4) To make all kinds of relevant information to victims available promptly and free of charge.
(5) To provide necessary protective measures for victims/witnesses who are worried about offender’sretaliation in order to ensure their safety and realize justice.
A. Recommendations
1. In the countries from where the participants come, the areas of concern in victim support are so wide andvaried that in order to embark on a programme of such magnitude would be too ambitious and the scantresource availability will be a serious impediment. As such it is recommended that in each of the counties
only those areas should initially be targeted which are of very high concern and carry serious sensitivity.
These programmes could then be gradually expanded to cover other areas as awareness amongst the public
takes place and resources are available.
2. With due consideration to each country’s context, we need to set up pilot projects for victim support andassistance. These should include governmental and non-governmental organizations and involve the local
communities. Balance, coordination, collaboration, and networking in service delivery among relevant
agents would be the keys in addressing individual needs of victims.
3. Since better development of victim support and assistance requires better understanding of victims, there
is a need to plan and conduct systematic training of facilitators. Experts from countries with advanced
victim support systems, e.g., the U.K., the U.S., etc. should be invited with help from the donor countries for
imparting training to trainers of facilitators. Services of locally available experts, e.g., psychiatrists andsociologists, should be utilized as well.
4. As formal intervention tends to require a lot of resources, where appropriate, we may utilize more
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informal support and assistance by communities. Traditional wisdom and customs should not be disregardedor disqualified since community development and mobilization may have potentialities to extend more
appropriate services for victims in crime than institutionalized systems. In several developing countries,
the informal social support systems are very strong and dependable but may with time whither away without
being replaced by better or more effective ones. Therefore there is a need to strengthen and formalize thetraditional systems. Relying purely on borrowed concepts would prove detrimental to the values
propounded by the United Nations Declaration on the subject.
5. Basic information about criminal proceedings (such as the arrest of the offender, prosecution, schedule oftrial, release on bail, sentence, escape and release of the offender from custody or correctional institutions)should be provided to victims by the competent authorities like the police, public prosecutor, court orcorrectional institution through any such means that are accessible to the victim i.e. letter, fax, email etc.
Other information should be provided upon request by an application of the victims and decided by the police,
public prosecutor, the court, or correctional institution considering that disclosure of some information
could hinder criminal investigation and proceedings and violate the rights to privacy of offenders and others,
and have a negative impact on the victims themselves and society.
6. The criminal justice system exists not only to punish the criminals but also to help the victims of crime.
Every country recognizes that the victims should be given an opportunity to play a more active role at every
stage of criminal proceedings. In order to positively reflect victims' rights at trial, we recommend theintroduction of "private accessory prosecutions" if necessary, where the victims can participate in criminal
trials as private prosecutors in addition to public prosecutors. To what extent the victim can exercise theirrights at trial should be discussed in the respective countries based on their own criminal justice systems.
7. Besides, in order to secure the victims' rights and prevent abuse of power and ensure judicious use of
discretion by public prosecutors, we have to establish adequate measures or systems in cases where publicprosecutors have decided not to prosecute the suspect. Private prosecution is one thing, and a review
system of non-prosecution cases is another thing. Every country in which a private prosecution system isadopted has to pay meticulous attention to ensure that the victim should not be placed in a disadvantageoussituation because of poverty or/and lack of legal expertise. In countries where private prosecutions are notavailable, there should be some appropriate measures to complain or appeal against the decision of
non-prosecution by public prosecutors. The decision of non-prosecution by public prosecutors should be
reviewed by other appropriate authorities in the countries concerned. As characteristics of society andculture differ from country to country, we have to carefully consider which system is suitable to be adopted inour respective societies.
8. The police and other criminal justice related authorities should provide protective measures tovictims/witnesses in danger such as escort services, quick response to their calls and necessary
arrangements to protect them from offenders who threaten witnesses.
9. All countries are aware of their responsibility for protecting victims from intimidation, harassment,
retaliation and/or any harm by offenders, because victims are part of our society and justice cannot be realized
without cooperation and participation of victims. We should introduce measures to protect victims such asproviding separate waiting rooms between offenders and victims/witnesses, and partitions in courtrooms. A
video link should also be introduced if financial circumstances of the respective countries enable this.
III. PART 2 : RESTORATIVE JUSTICE APPROACHES
As victim protection and support gained ground, the restorative justice approach also emerged as a newconcept to tackle problems which the criminal justice system was failing to address. The restorative justiceapproach is one which considers the loss caused by crime through the active participation of the victim,
offender and the community.
“The Vienna Declaration on Crime and Justice: Meeting the Challenges of the Twenty-first Century” wasadopted by the Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders
held in Vienna in April 2000. It encourages the development of restorative justice policies, procedures andprogrammes that are respectful of the rights, needs and interests of victims, offenders, communities and allother parties. Based on this Declaration, the working group of the Commission on Crime Prevention and154

123RD INTERNATIONAL SENIOR SEMINAR
GENERAL DISCUSSION PAPER
Criminal Justice drafted in 2002 the "Basic principles on the use of restorative justice programmes in criminal
matters" as a United Nations standard for restorative justice.
Although restorative justice has been defined in numerous ways, we reached a common understanding
about restorative justice from practical aspects as follows. Restorative justice provides a process with
opportunities for victims, offenders and the community affected by a specific offense and is a means tocollectively identify and address harms, needs, and obligations, in order to heal and put things as right as
possible.
We also identified the aims and goals of restorative justice as follows:(1) Healing victims of crime and all parties affected by crime(2) Repair the harm caused by crime(3) Reintegration of victims and offenders into the community(4) Asking an offender to be accountable(5) Deliberative democracy (decision making process)Based upon the above-mentioned definition, the aims and goals of restorative justice and discussion onvarious issues related to the practical application of restorative justice approaches, we chose the following
recommendations for the vital points of introducing and utilizing restorative justice approaches.
A. Recommendations
1. When each country initiates restorative justice approaches, pilot programmes which correspond withproblem-oriented approaches should be started, considering the feasibility and efficacy of such approaches.
2. Each country should consider the following points in practicing restorative justice approaches:(i) The state should try to solve general problems such as lack of awareness and constraints ofresources when introducing restorative justice approaches.
(ii) The state should ensure a fair process and outcome for the parties concerned in restorative justiceapproaches.
(iii) The state should take effective measures ensuring justice and ensure parties have equal bargaining
power.
(iv) The state should protect the human rights of offenders under the due process of law such as:(a) The right to equal protection under the law(b) The right to freedom from torture and cruel treatment(c) The right to be presumed innocent(d) The right to be tried by an impartial court(e) The right to assistance of legal counsel.
3. Though the research so far conducted has proven that restorative justice approaches are useful inprevention of re-offending, and provided results to the satisfaction of the parties to a large extent, there is stilla need for more research on restorative justice approaches and practices widening the scope, particularly inthe field of domestic violence.
4. Since restorative justice is a new concept, adequate information about restorative justice should be
provided not only to the general public but also persons working for the criminal justice system in order toenhance awareness. Appropriate training should be given to facilitators and other persons concerned withrestorative justice approaches.
5. When the restorative justice process such as the victim offender reconciliation programme (VORP),
victim offender mediation programme (VOM), victim offender dialogueue programme (VOD) and family groupconferencing (FGC) are implemented, the following guidelines should be observed in these programmes andconferences.
(i) Participation should be voluntary.
(ii) Appropriate preparation should be carried out for each particular situation.
(iii) Trained facilitators and mediators should guide the process.
(iv) Appropriate follow-ups should be carried out to confirm the implementation of the agreement.
(v) There should be feedback loops to determine the impact of the process on the participants.

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APPENDIXCOMMEMORATIVE PHOTOGRAPH• 123rd International Senior Seminar

UNAFEIThe 123rd International Senior Seminar

Left to Right:
Above:
Prof. Muira
4th Row:
Mr. Takagi (Chef), Mr. Inoue (Staff), Mr. Ihara (Staff), Ms. Masaki (Staff), Ms. Matsushita (Staff), Ms.
Yamashita (Staff), Mr. Tanaka (Staff), Ms. Tsubouchi (Staff), Ms. Nagaoka (Staff), Mr. Kai (Staff)
3rd Row:
Mr. Nakayama (Staff), Mr. Penjore (Bhutan), Mr. Dennery (El Salvador), Mr. Daassi (Tunisia), Mr.
Dalinting (Malaysia), Ms. Akiyama (Japan), Mr. Haque (Bangladesh), Mr. Ozawa (Japan), Mr. Yoshida(Japan), Mr. Toishi (Japan), Mr. Kataoka (Japan), Mr. Nabana (Japan)
2nd Row:
Mr. Koike (Staff), Mr. Bastola (Nepal), Mr. Justalero (Philippines), Mr. Sarei (Papua New Guinea), Mr.
Butar Butar (Indonesia), Mr. Khan (Pakistan) Mr. Naveed Khan (Pakistan), Mr. Laukaphone (Laos), Mr.
Castro (Chile), Ms. Rhujittawiwat (Thailand), Ms. Boonsit (Thailand), Mr. Shash (Egypt) Ms. Hayashi(Staff), Ms. Hoshino (JICA)
1st Row:
Mr. Fukushima (Staff), Prof. Kakihara, Prof. Teramura, Prof. Tachi, Prof. Someda, Ms. Frey (Germany),
Mr. Dunn (U.K.), Ms. Pranis (U.S.A), Director Sakai, Prof. Braithwaite (Australia), Dr. Kittipong(Thailand), Ms. Kittayarak (Thailand), Dep. Director Akane, Prof. Tanabe, Prof. Takasu, Prof. Kuwayama,
Mr. Ezura (Staff), Mr. Eratt (L.A.)