112TH INTERNATIONAL TRAINING COURSEREPORTSCOURSEREPORTS OF THE
COURSEGROUP 2PARTICIPATION OF THE PUBLIC AND VICTIMS FOR MORE
EFFECTIVE ADMINISTRATION IN PROSECUTION AND THE
JUDICIARY
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Advisers

Mr. Alvaro Caro Melendez
Ms. Emi Yoshida
Mr. Hideki Igeta
Mr. Moustafa Ahmed Genidy Abdin
Ms. Wang Ping
Mr. Jyotirmoy Khosla
Mr. Darmawel Aswar
Ms. Tokiko Sugawara
Mr. Hisashi Uruga
Mr. Yasanath Ravindra
Weerakkody Wijegunawardena
Professor Keiichi Aizawa
Professor Hiroshi Iitsuka

I. INTRODUCTION
Vi c t i m s s h o u l d b e t r e a t e d w i t hcompassion and respect for their dignity.
They are entitled to access to themechanisms of justice and to prompt
redress, as provided for by national
legislation, for the harm that they havesuffered; as is provided in the Declarationof Basic Principles of Justice for Victims of
Crime and Abuse of Power (General
Assembly resolution 40/35 (1985)).
Unfortunately however, victims of crime
have received insufficient attention fromthe criminal justice system. Although inrecent years considerable progress has
been made to improve the situation of
victims, many shortcomings and problems
still remain. This means that victims still
suffer physical and financial impact,
psychological injury and, in some cases,
secondary victimization from the criminal
procedure. In order to realize more
effective administration in prosecution andthe judiciary, it is important to encourage
victims to cooperate with the criminal(Colombia)(Japan)(Japan)(Egypt)(China)(India)(Indonesia)(Japan)(Japan)(Sri Lanka)(UNAFEI)(UNAFEI)

justice system by releasing them fromvictimization.
In addition, public participation, mainly
as witnesses, is also indispensable for thesame object. This matter is also likely tobe neglected because witnesses are
regarded not as the object to consider, but
as a ‘means to an end’ in the criminal
procedure.
The main subject of this group is the‘Participation of the Public and Victims forMore Effective Administration in
Prosecution and the Judiciary’, which isaccompanied with the undermentioned 3
sub-topics:(1) Measures for securing testimony (e.gwitness protection).
(2) Redress for victims through criminal
justice procedures.
(3) Measures for protection of the rights
and interests of victims.

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RESOURCE MATERIAL SERIES No. 56
We know that there are a lot of issues ofconcern with our main theme, an example
of which is the jury system, but we will not
discuss such issues. The focus is on thesaid 3 sub-topics because, as officers
engaged in law enforcement, we believethat we should address our attention to theissues that can be resolved in practice, andthe 3 sub-topics are commonly shared
among us. We are going to discuss our
main subject according to these topics,
under which the problems and current
situation of each country, and oursuggestion, will be discussed.
II. MEASURES FOR SECURINGTESTIMONY
A. Problems
Among most of the group participants,
it is well recognized that witnesses are
sometimes exposed to threats bydefendants or members of the gangster
groups and as a result, are likely to be
reticent to answer questions by theprosecutor or change their statement incourt. If witnesses are afraid that
defendants or their associates might harm
them, they will hesitate to attend court andwill avoid statements against thedefendant in court, at which the defendants
and their associates (in spectators seats)
may be present (some participants named
this situation of witnesses as “hostile”). As
the public or victims as witnesses cannot
effectively participate in the criminal
proceeding, the pursuit of truth shall fall
into a fatal blunder. The group discussed
how we are to cope with this problem of
threats and reticent witnesses.
It is certain that the reticence of
witnesses can be caused by other reasons,such as victims of sexual offenses notwanting to disclose their experience (wewill mention this problem later). However,
the main and major reason for witness
reticence to assist the prosecution284

authority, even if arising from other causes,
cannot be separated from the problem of
the threat to witnesses.
B. Current Situations and Present
Countermeasures
As each participant presented thecountermeasures implemented in theirrespective countries, we have discussed themerits and demerits of each system inpractice, with recommendations. We cameto recognize that multiple countermeasures
are compatible in specific countries and, if
selected and applied properly, to a variety
of situations. The brief summary of thecurrent situations and countermeasures
adopted at present are given below.
1. Witness Securing Program
In Colombia and the USA, there arehighly developed countermeasures forsecuring witness protection in order toprevent threats against witnesses. This
concept brought us a great model for
desirable countermeasures. It includes
control over information on witnesses andconcrete protection measures. This system
can include providing witnesses with bodyguards, changing their name, identifying
them by a number throughout the trial,
providing them with a budget for moving
to safety areas or to a foreign country, andso on. In a case where witness examinationis conducted, linking a witness in anotherroom to the courtroom via video camera is
one measure. This program can be applied
from the early phase of investigation andcontinue to the end of the danger to thewitness. These concrete protection
measures are selected and adopted
depending on such elements as the phaseof the case, seriousness of the threat, thenature of a witness and so on, or by thejudgement of the Attorney-General.
Also in Egypt, special permission forcarrying firearms and insurance arrangedby the government is available for112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
witnesses likely to be threatened. Suchprograms are effective and invaluable tothese countries, in spite of their enormous
costs, where the power of gangster groups
is so strong that witnesses are likely to
expose themselves to serious harm by
opposing the groups. It is a matter ofcourse that these programs should be
implemented without any unfair influenceon testimony from the investigation
authority.
2. D e v i c e s i n t h e E x a m i n a t i o n o f
Witnesses
In countries such as Indonesia andJapan, which have their legislative origin
in the Continent, written statements of
witnesses made by the investigating
authority can be examined under specificconditions, i.e, as evidence in the trial (ifthe prosecutor submits it, the defense
counsel consents to it and the judge makes
an affirmative decision). In such cases, it
is not necessary to summon a witness tothe court in Japan. Unfortunately theaccused and the defense counsel are likely
to refuse consent for the written statement
because they contend the guilt of theaccused.
Witness examination through TV
cameras is suggested in order to relieve
witnesses of pressure from defendants andspectators, although it has not been
implemented in any countries of the group.
This measure may well be recommended
and adopted, especially where thedefendants or the spectators scare thewitness extremely, because this can exempt
them from confrontation with thedefendants or spectators, while still
granting an open trial and the right ofcross-examination.
In Japan, judges are authorized to
exclude the defendant from the courtroom
during witness examination when theirpresence would interrupt the witness fromgiving a full statement. Indonesian Judges
have similar powers too. Although there
is a collision between the victim’s rights
and the defendant’s right to attend thecourt, such powers can be justified under
specific conditions and are adaptable toother countries.
3. Keeping the Defendant in Custody
In such countries as India and Japan,
there is a legal mechanism that theaccused, who are suspected of destroying
evidence or threatening witnesses intochanging their statements, may be kept incustody and refused bail during the trial.
In some cases, persons (except for the
defense counsel) are prohibited frominterviewing the defendant, even in a
detention house. This can contribute
greatly to security for witnesses, as it
makes it impossible for the accused tothreaten the witnesses by themselves.
However, some participants objected to thisidea in terms of the defendant’s humanrights. Therefore, adoption of this idea
seems to depend on the nationality andsituation of each country, though it is aneffective countermeasure for securing
witnesses.
4. The Sanction Against Threat
A threat or unlawful force to a witness
composes another crime, such as
intimidation of a witness, and is punishable
by another criminal procedure in somecountries. However this provision seems
insufficient as a measure to annihilate suchactivity in the case of specific organizedgangster groups, because members of thegroup are likely to threaten witnesses
regardless of this provision.
There is sanction in the sentencing
against defendants who threaten witnesses
in their case. If such conduct is proved in
the trial of the case, the sentence for theaccused will be increased by 25% in
Colombia. Similar treatment is reportedly

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implemented in Egypt. Where an attempt
to control witness’ testimony is impossible,
a defendant, knowing that such an attempt
would result in longer sentencing, will giveup on such unlawful conduct. This sanction
against the defendant can be effective inpreventing threats committed bydefendants to some extent.
In Japan, a judge may have a specificspectator excluded from the courtroom
when his/her presence would interrupt thewitness’ statement. Implementation of thiscountermeasure requires adjustment
between the authority and the dignity of
the court, and the human rights of thethreatener, because s/he shall be subject
to such disposition by a relatively
simplified procedure. Whether judges canbe endowed with such power depends on
the status of the court in each country.
C. Suggestions
Effort should be made to enhance theprotection of witnesses during the entire
criminal judicial process. Introduction ofcomprehensive witness protection
programs would be useful for the fightagainst organized crime.
D. Additional Problems or Points
1. Allowance of Witnesses(a) Problems and Situations of Countries
Although in many countries daily
allowances and traffic fees forwitnesses are supposed to beprovided, in more than few countries
they are not provided in practicebecause of the deficit budgets ofgovernments. In Egypt, noallowances are supposed to be paid
to witnesses.
(b) Suggestions
It is desirable that:(i) Adequate daily allowances andtraffic fees be paid to a witness
who attends the court and286

testifies.
(ii) If necessary, accommodation fees
be paid or accommodation
facilities be available.
2. Document as Corroborative Evidence(a) Problem
Besides oral evidence, documentary
evidence is necessary in cases for
proof, such as medical reports andother expert reports. In cases of
misappropriation or criminal breachof trust, documentary evidence plays
a great role. It is also possible that awitness’ testimony is not admissible
or credible without such kinds of
documents. Unless these documents
are preserved and protected, it isdifficult to prove the case. There may
be cases where the offender may try
to damage or destroy the documents.
Whether this issue should be an itemof this sub-topic was doubted by someparticipants because it is not relevant
to our main theme. However thisissue was decided as a topic of our
discussion by the majority in whosecountries the loss of documents is aserious problem.
(b) Current Situation of Each Country
In Japan, the documents which are
not yet submitted to the court are
kept in the prosecutor’s office, wherea scientific way of preserving
documents is available. They are
inputted into the computers. In
India, the court takes these records
into the custody. The documents are
submitted by the prosecution and are
produced only during the trial. In
China, evidence involving statesecrets shall be kept confidential.
Seized articles and documents areproperly kept and sealed. Judicial
functionaries take measures for theprotection of the documents in
Colombia. In many developing

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
countries, documents submitted tothe court by the prosecution authority
are sometimes lost or altered without
the consent of the related parties.
(c) Suggestion
Criminal records, especially evidence
including documents, should be kept
adequately safe, and if tampering isfound, the officer in charge of keeping
the documents should be blamed forthis fault. Documents should beprotected at all costs. Scientificdevices may be adopted for the same
ends.
III. MONETARY REDRESS FOR
VICTIMS THROUGH CRIMINALPROCEDURE
A. Problem
Victims suffer damages from crime suchas loss of their property, bodily injury, deathand mental suffering. In addition, victims
have to pay for medical bills, moving feesand so on. When an offender kills a victim,
the bereaved have to hold a funeral whichmight cost dearly. Such damages or costshould not be left unaddressed. Therefore
offenders should, where appropriate, makefair restitution to victims, their families ordependants. Such restitution should
include the return of property or payment
for the harm or loss suffered, andreimbursement of expenses incurred as aresult of the victimization.
Firstly, victims of crime can bring a civil
action against the offenders in civil court
for monetary payment as compensation, inorder to recover the damage of the crime.
Unfortunately however, victims sometimes
cannot get any or sufficient amounts ofmoney with civil action, because it has
some defects in relieving victims of crime,that is:(i)

Victims sometimes cannot identify or
find the offender.

(ii) Victims sometimes find difficulty incollecting enough evidence to sustain
civil actions.
(iii) Offenders often lack enough funds tomake up for the victim’s damage,even if victims win in civil action.
(iv) Hiring a lawyer for civil action costs
much in comparison with the amountof gain that the victim may get, sothat victims sometimes cannot or do
not want to bring actions.
(v) In case of payment of fine, this might
be an obstacle to compensation forvictims.
Regarding stolen property, every country
has a system in which articles belonging
to victims, seized as evidence by theinvestigation authority and submitted tothe court, shall be returned to the owneras soon as possible. If the articles is lost or
not found, victims have no choice otherthan to get monetary redress for thedamage.
In addition, from a historical point ofview, criminal procedure for punishment
and civil procedure for monetary redress
were not separated in pre-modernizedsociety. Therefore each country has
developed a respective system to realize
monetary redress through criminal
procedures, other than civil action in civil
court (the systems adopted are countries
are attached in table 1).
B. Current Situation andCountermeasures at Present
Here we will illustrate statecompensation, restitution orders, and civil
action in criminal procedure, with theexperience of practice in each country.
1. State Compensation
State compensation means
indemnification provided by the state,police authority or Attorney-Generaloutside and independent of judicial

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procedures. With state compensation,
victims can obtain some monetary redressfrom the government or state. State
compensation does not require theapprehension and conviction of the offender
to provide financial relief to the victims.
State compensation can provide victims
with financial relief, even though theoffenders do not have enough money tomake restitution.
In general,compensation for victims of crime is paid
mainly to the victims of violent crimes.
Property loss is typically not covered, withthe exception of eye glasses, hearing aids
and other medical devices. Adoption or
implementation of state compensation is
likely to depend on the financial situationof the government.
In Japan, state compensation was
introduced in 1980 according to theenactment of the Crime Victim Benefits
Payment Act (Law of State Compensation
for the Victims of Crime). The types ofcrime or damages to which this system isapplicable are death or serious disability
that are incurred by intentional conduct.
This includes 2 types of payment, that is:(i) Payment for the bereaved of victims
who were killed.
(ii) Payment for victims who sufferedserious disability.
In 1997, payment from this systemamounted to 635 million yen for 259
bereaved or victims. It is possible thatvictims who received damage by the
conduct of their relatives, those who areresponsible for the cause of the crime or
those who have got official payment, suchas compensation for industrial accidents,
may be suspended from payment of all ora part of the compensation.
In India, the state of Tamil Nadu
commenced the Victim Assistance Fund in

288

1995. The scheme is run by state police
and is applicable only in the said state.
State compensation requires national
funding sources and mechanisms. There
are two primary sources: funding from feesor charges that offenders pay, and funding
from General-Revenue appropriations fromthe legislature. In the United States, atthe federal level, fines and penalties arelevied against federal criminal offenders
and these monies are deposited into the“crime victims fund”, which is used to help
states support their victim compensation
programs.
2. Restitution Orders
Restitution order means an order by thecriminal court, on its own initiative anddiscretion, that the offender shouldcompensate their victim’s damages.
Restitution should be used to provide a wayof offsetting some of the harm done to thevictim, and also to provide a sociallyconstructive way for the offender to be held
accountable, while offering maximum
opportunity for rehabilitation. Restitution
attempts to establish a relationshipbetween the victim and the offender in aneffort to raise the offender ’s sense of
responsibility to the victim.
Restitution to the victim of a criminal
injury can be effective as a punitive
measure, as well as a financial remedy. If
used as a punishment, restitution mustcome from the offender’s own resources andit must be part of the criminal court
sentence, in that it is tied to the dispositionof the case.
Assessment of victim loss is a complex
process, so some device is required to haverestitution in the criminal procedure tofunction effectively. In Colombia, both civil
action in criminal procedure andrestitution orders are adopted and enacted.
The court can consider and order bothpunishment of the accused and payment

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
from the accused to the victims. In
restitution orders the court is authorized
to decide from which property the
defendants should raise money forrestitution, in order to guarantee
fulfillment of the restitution order. For thispurpose, the public prosecutor seizes
enough property of the defendant for thispayment, after the arrest.
In India, restitution orders, that is court
authorized orders for offenders to pay tovictims, was introduced in 1974. Thissystem has been regarded as a substitution
for fines in India, that is; payment ofcompensation is at the discretion of thecourt and is subject to no specific criterion.
The priority of restitution over fine is at
the discretion of the court and restitution
orders cannot be realized by compulsory
execution. The defendants shall be subject
to detention in a workhouse if they fail tofulfill their payment. In practice, the cases
in which restitution orders have beenentered are very few because the publicprosecutor is indifferent to the monetary
redress of victims and does not ask for it incourt.
3. Civil Action in Criminal Procedure
Civil action in criminal procedure isanother countermeasure to realize
monetary redress in criminal procedures,
where victims can participate in thecriminal procedure, seeking monetary
redress as a party. Many jurisdictions
allow the consideration of civil claims incriminal proceedings. This combination ofcivil and criminal proceedings has several
benefits for the victim and the jurisdiction,
ranging from procedural economy to thefact that responsibility for the collection ofevidence and the presentation of the issues,
to a large extent, lies with the authorities.
In China, civil action in criminal
procedure was introduced recently as
Incidental Civil Actions, where victims who

have suffered material loss as a result of
the defendant’s criminal act have the rightto file an Incidental Civil Action during thecourse of the criminal proceeding. An
Incidental Civil Action is heard together
with the criminal case. Only for the
purpose of preventing excessive delay inthe trial of the criminal case may the same
judicial organization, after completing thetrial of the criminal case, continue to hear
the Incidental Civil Action. A party to an
Incidental Civil Action may file an appeal
against that part of a judgment or an orderof first instance made by a local People’s
Court, at any level, that deals with the
Incidental Civil Action. In practice, aconsiderable part of victims’ injury casesor the bereaved of murder cases have triedt h i s p r o c e d u r e w h e n t h e P e o p l e ’s
Procuratorate decided to prosecute thedefendants. Victims are likely to getinsufficient remedy because the defendantis lacking enough money.
In Egypt, civil action in criminal
procedure is also adopted. As the decisionof the criminal court is binding on that of
the civil court, victims are supposed tomake use of this system when cases havebeen prosecuted. In Indonesia, the court
is authorized to decide the civil suit forcompensation with the criminal case, at therequest of victims. If the injured party
seeks joinder of their claim with thecriminal case, the district court concerned
shall consider its competence to adjudicate
the said claim, the veracity of the basis of
the claim, and the order requiring
reimbursement of costs expended by the
injured party. Except where the district
court declare its incompetence toadjudicate a claim, or a claim is declared
to be unacceptable, the judgment shall only
set forth stipulation on the order requiring
reimbursement of costs expended by the
injured party. Where there is a joinder ofa civil suit and a criminal case, then thesaid joinder shall continue at the stage of289

RESOURCE MATERIAL SERIES No. 56
examination on appeal in and of itself.
Where no appeal is lodged with respect tothe criminal case, then a request for an
appeal regarding a judgment oncompensation shall not be allowed. As in
most criminal cases in practice, when theoffender/defendant has no budget for
fulfillment of the compensation, the victims
may use the civil court to get compensation,
as the judge of the civil court can seize theproperty of the offender and enforce its
decision on the offender to pay the victims.
In Germany, civil action in criminal
procedure has not worked sufficiently after
it was introduced as “Ancillary
Proceedings” in 1987. Although thissystem has a lot of merits for victims or
the bereaved, ancillary proceedings wereused in only less than 1% of all judgments
delivered in 1997. Judges, publicprosecutors and legal professionals havebeen reluctant to use the proceedings andthe victims were also unfamiliar with thistype of proceedings. The assumed reasonsfor this are the strict separation between
criminal and civil law, and the mental
distinction between punishment andreparations. It is claimed that a
considerable amount of additional work canstem from the proceedings, and theprocedural delays resulting from the takingof additional evidence are considerable.
C. Suggestions
We should continue with our efforts tofind how the criminal procedure can best
contribute to ensuring the monetary
recovery of victims of crime. State
compensation could be one of the possible
solutions, especially in case the offenders
are not caught or they do not have enoughmoney. It is also worth considering thefeasibility of encouraging criminal courts
to be able to order the defendant tocompensate the victim’s damage, andestablishing a system in which the victim
can participate as a party concerned in the290

criminal procedure, and propose
compensation for damage.
In some countries this kind of system
was introduced, but even in thosecountries, the judges and prosecutors were
not interested in the system; or even if suchorders in that system were issued by thejudge, the defendant did not have themonetary power nor intention tocompensate for the damage. For such
instances, a possible alternative is thesystem of the UK, where if the judge does
not order the defendant to compensate thedamage, the reason should be disclosed by
the judge. In the system of Colombia, thepublic prosecutor may seize the propertyof the accused, which can be appropriatedfor payment to the victims, in order toprevent the accused trying to avoid theenforcement of compensation and conceal
their property.
IV. MEASURES FOR THE
PROTECTION OF THE RIGHTS AND
INTERESTS OF VICTIMSAs the status or standing of victims incriminal procedures has been reviewed
recently, we discussed some issues which
can be argued relating to our generaltheme. We will explain each problem, thecurrent situation of each country andsuggestions to each issue according to theflow of prosecution and trial procedure. We
also mention the issue of how to cope withthe dissatisfaction of victims withsentencing.
A. Notification System for Victims
1. Problem
Information is the minimum
requirement to protect the rights andinterests of victims, because victims cannot
take any adequate action to participate in
the criminal procedure, exercise their legal
rights or apply for special treatment
without knowing basic information such as

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
on the proceeding or disposition of cases,
and the existence of and application
procedure for their rights and special
treatment.
2. Situation of Each Country and Present
Countermeasures(a) China
The court, receiving inquiries aboutprosecution of the case from victims,
shall answer and notify persons after
the prosecution. On the other hand,
the People’s Procuratorate cannot
explain the case to the victim before
the phase of prosecution. However if
the case is privately prosecuted,
victims are naturally notified of
information regarding the case, as aparty to the case.
(b) Colombia
Victims have the right to receive
documents, in which the outcome anddisposition of the case is shown,within 12 days when they inquire
about these matters in writing to the
public prosecutor.
(c) Egypt and India
In Egypt and India, any special rights
or treatment regarding thenotification system are not available
to the victims. Victims shall get
relevant information when they bringprivate prosecution by themselves inboth countries.
(d) Indonesia
Although a victim may ask for
information regarding the case fromthe public prosecutor or the court, it
is not mandatory to correspond andanswer this inquiry.
(e) Japan
Some kinds of pamphlets andbrochures which explain the outlineof the criminal judicial procedure,

and the rights and positions ofvictims are prepared and available atthe police office and the publicprosecutor ’s office. The publicprosecutor ’s office implemented a
notification program where theprosecutor in charge of a case, withapplication of the victim, shall informthe victim of the disposition of thecase, of the court in charge of the case,the trial dates and so on.
3. Suggestions
In order for the victim to be able to makenecessary proposals or requests to theinvestigating authorities and the court, itis necessary to provide adequate
information on the flow and outcome of thecriminal proceeding. However providing
information to the victim may result in
violating the privacy of third parties
concerned with the case, or the secrecy ofinvestigating information. Therefore, it isdesirable to provide information to thevictim by striking a balance between thenecessity of providing information,
protection of the privacy of third parties,
and the secrecy of investigating
information.
Specifically, if there is a request from thevictim, we should provide the victim withinformation on the disposition of the case,trial court, trial date and outcome of thetrial. Another method explaining the flowof the criminal proceeding, such as
pamphlets or brochures explaining judicial
procedures and the rights and positions ofvictims, are also useful to victims.
B. Initiative or Participation ofVictims in Criminal Prosecution
1. Problems
Victims sometimes feel dissatisfied withthe decision of non-prosecution by the
public prosecutor. However, generally
victims are not provided with the right ofparticipation regarding the decision to

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RESOURCE MATERIAL SERIES No. 56
prosecute an offender. The need for victims
to check non-prosecution might be strong
where prosecution is monopolized by the
public prosecutor and is discretionary.
2. Current Situation of Each Country(a) China
While the public prosecution agency
exercises the power to prosecute interms of the state, society and thevictim, the victim by himself/herself
may bring a charge and request the
judicial body to investigate criminal
responsibility by right.
(b) Colombia
The public prosecutor has theauthority to decide on the prosecutionof cases. This decision is notdiscretionary but mandatory whenthe evidence is sufficient. Special
countermeasures for abuse ofprosecution power are not available.
(c) Egypt
Prosecution of the case is decided at
the discretion of the publicprosecutor. On the other hand, there
is a system of private prosecution
where a victim, who is not satisfied
with the decision of non-prosecution,
may bring criminal action against an
offender by himself/herself. In spiteof its significance for victim
participation, private prosecution in
Egypt does not serve victims
substantially, for victims can scarcely
win in private prosecution.
(d) India
Most of the criminal cases in India
are investigated by the police andprosecution, and are also filed bythem. However, the victim’s right toprosecute an offender is provided
under Sec. 200 of the Code of
Criminal Procedure, 1973. The
victims in certain cases get legal

292

assistance from the state to prosecutethe offender. The victims can engage
lawyers for prosecution at their own
convenience. So far as legal
assistance is concerned, victims caneither receive counseling or lawyers
engaged to assist the victims.
(e) Indonesia
The public prosecutor decides theprosecution of a case at his/her
discretion. There is no system tocheck or control this discretionary
decision. Sometimes victims use
mass-media to pressure the AttorneyGeneral into re-investigation and reexamination of non-prosecution
decisions.
(f) Japan
Prosecution of a case depends on thediscretionary decision of the publicprosecutor, even though the evidence
is sufficient to support the case. On
the other hand, the Inquest of
Prosecution in each jurisdiction of the
district court, which is composed of
11 ordinary people, have authority tocheck a decision of non-prosecution
by a public prosecutor, and provide
an opportunity to correct his/herdecision. It also serves the functionof letting a victim present his/hercomplaint. In addition to this, there
is a system where a person, who hasmade a complaint or accusation of a
specific crime, and is not satisfied
with the public prosecutor ’s nonprosecution decision, may apply tothe court to order the case to be tried.
If the application is granted by the
court, then a practicing lawyer isappointed by the court to exercise thefunctions of the public prosecutor.
3. Suggestions
Under the countries where private
prosecution is in practice, victims naturally

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
should be able to bring criminal action
against the offender in spite of aprosecutor’s non-prosecution decision. It
is desirable to check the reasons why theprivate prosecution system does not work
effectively and improve it to realize victim’s
rights or interests.

We will mention this right later under an
independent item. Egypt and India also
adopt the private prosecution system. In
this, the victim who brings criminal action
against the accused is naturally authorized
to be notified of the trial date and attend
the court as a party.

Under the countries where private
prosecution is not in practice, it isnecessary to study/establish the systemand to provide victims with an opportunity
to be involved in the decision of prosecution
or non-prosecution, or the indictment
process, by being interviewed by the publicprosecutor and having a say in the content
and degree of damage, and the punishmentof the offender. It is worth considering thatvictims should have an opportunity to file
a complaint and request review of the nonprosecution if they are dissatisfied with thedecision of the public prosecutors.

In Indonesia and Japan, victims have no
special standing to attend the trial otherthan as spectators. In Indonesia, special
seats are provided for victims to hear thetrial as spectators, after their witness
examination. In Japan, special allocationof spectator’s seat is sometimes provided
for victims at the discretion of the court.

C. The Right to Attend the Trial
1. Problem
Victims sometimes can not attend thetrial date, even though they want to,because of non-notification of the trial date,capacity of spectator’s seats, place of thecourt and so on. The situation of victims
attending the trial is as follows. First,
victims are summoned and testify as
witnesses at the trial. Secondly, victims
attend the trial as a party of the case under
the private prosecution system. Thirdly,
victims attend the trial as spectators.
What matters mainly is the third- standing
as spectators- because sometimes there are
obstacles to victim’s hearing the proceedingof the case, although they are interested.
2. Current Situation of Each Country
In China, victims have the right toattend the court and are granted special
seats beside a public prosecutor in the
courtroom, and will be notified of the trial
date by the court. In Colombia, victims
have the right to attend court and testify.

In the United States, in the Oklahoma
bomb case, the case was transferred toanother court far from the residence of thevictims. Also the number of victims was
too large to accommodate in the spectator’sseats of the court. The court allowed
victims to watch the trial by relaybroadcast in special seats set in a
gymnasium located in a residential area
near the crime scene.
3. Suggestions
Regarding the right of victims to attend
and hear the trial, it is worth considering
special treatment for victims in somesituations to guarantee their opportunityof attendance or hearing, besides thegeneral right to hear the public trial.
D. Secondary Victimization
Through Witness Examinations
1. Problem
Victims have difficulty in testifying in
the courtroom in front of a defendant orspectators in cases of sexual crime, childabuse and organized gangster groups. We
focused on victims of sexual crime here.
Victims of sexual crime want to avoid
witness statements in the trial because
they think it is scandalous or shameful. In
addition, victims are often afraid of the293

RESOURCE MATERIAL SERIES No. 56
defendant.
It is generally assumed that the gap
between the actual number of sexual
crimes committed and those reported isgreat, and the latter does not reflect thereality of the situation because female
victims hesitate to report such crimes.
Victims are sometimes cross-examinedseverely or humiliated by the defense
counsel, suffering additional hurt.
2. Situations of Each Country(a) China
In China, examination of witnesses
shall be subject to closed trial in thecase of sexual crime. This is notdiscretionary but mandatory.
(b) Colombia
Colombia has the Total Witness
Security Program which is also
applicable to the examination of
victims as witnesses in sexual
offenses. Under this system, victimsof sexual offenses can be examinedin a way where their privacy is notinvaded, because the victims are
exempt from witness examination in
front of the defendant, and written
statements of the victims can be usedas evidence with the medical reports.
A detailed explanation of this system
was already mentioned earlier.
(c) Egypt
In Egypt, the victims of sexual crime
are examined as witnesses underopen trial before spectators.
(d) India
Sec. 327 of the Code of Criminal
Procedure 1973, provides for trial incamera for any classes of cases
deemed fit by the magistrate/judge.
In addition, in all rape cases the trial
is held only in camera. This would
not only be in keeping with respect294

for the victim of the crime, and intune with the legislative intent, but
is also likely to improve the qualityof the evidence of a female witness
because she would not be so hesitantor bashful to depose frankly, as she
may be in an open court under thegaze of the public.
(e) Indonesia
In Indonesia, the victims of sexual
offenses can be examined as
witnesses in camera, which means aclosed trial without spectators, except
for relatives of the offenders andvictims. Needless to say, theapplicability of this system is limited
to the victims of sexual offenses, but
this can also contribute to securing
the privacy of victims generally.
(f) Japan
In Japan, examination of a witness
may be held outside of the trial date,under restricted conditions, without
spectators. This doesn’t mean denialof an open trial, but it substitutes
written statements of the said
examination for direct witness
statement as the evidence of the case.
This can be very useful in securing
witnesses’ privacy, as this makes it
possible to keep the identification ofa witness secret and, at the sametime, allow a defendant and theircounsel the right to cross-examine.
3. Suggestions
Devices to relieve the mental sufferingexperienced by victims of sexual offenses
through witness examination, balancedwith the right of defendants to crossexamine, the right of spectators and an
open trial, is desirable. Examples of suchdevices are as follows:(i) video-linked witness examination
systems.

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE(ii) witness examination in a witness box
sheltered from the defendant andspectators.
(iii) keeping the name, address and placeof work of a victim (as a witness)secret during the course of the trial.
(iv) closed trial in camera without
spectators, scope of which should be
limited to specific cases such as rapeor sexual crime, in order to save any
further embarrassment of victims.
E. Mental Care and Support forVictims
1. Problem
Victims sometimes want to avoid
testimony as witnesses at court, even if
there is no concrete danger or risk ofhumiliation. Victims also sometimes feel
uneasy and isolated in testifying as awitness, especially when it is the first time
for them, because victims do notunderstand the criminal procedure and thecourse of examination. Victims sometimes
do not have access to free legal counsel to
instruct them on their rights, and as aresult, they may not enjoy their rights orinterests.
2. Situation of Each Country
China, Colombia, Egypt, India andIndonesia have no special volunteer
organizations to serve for the mental careof victims. All countries of the group,
including Japan, have no special systems
to support victims to attend and testify atcourt. However it may be noted that:(i) There are a private and volunteer
organizations which collect money
and allocate aid to victims in Egypt.
They do not provide counselling or
support services.
(ii) Some volunteer groups in Japan are
working in the field of the mental careof victims and have started activities
which are limited to victim assistance(not extended to witness assistance).
(iii) Some kinds of leaflets or brochures

explaining criminal procedure andwitness examination are available forvictims at police stations and publicprosecutor’s offices in Japan.
3. Suggestions
Criminal justice agencies concerned withthe criminal judicial procedure, including
police officers, public prosecutors andjudges, should recognize the mental impact
or suffering that victims of crimes receive.
It is worth considering establishing asystem of orientation to the criminal
procedure, escort to the court, or
counselling support by government
authorities or non-governmentorganizations, and training to have officers
recognize victim problems.
F. Punishment - Giving Victims a
Say About Sentencing
1. Problem
Punishment by the court may not becommensurate with the crime committed,
and the victims may not be satisfied withthe punishment given to the offender. But
we do not conclude that heavier
punishment is desirable, as punishment
itself does not provide redress to thevictims.
Victim’s feelings or victim’s damage
cannot be neglected in the disposition ofcases because they are deeply concernedwith the cases, even if they are not a party
to the trial. Therefore the involvement ofvictims in decision-making regarding thesentencing of the offenders can be an issue,
as they sometimes have no chance to give
their opinion or state their damages.
Generally, such involvement is referred toas “Victim Impact Statements” or “Victim
Statements of Opinion”.
2. Situations
In an increasing number of jurisdictions,where the victim does not have the rightto prosecute, the victim is allowed to295

RESOURCE MATERIAL SERIES No. 56
provide information through a victim
impact statement or victim statement of
opinion. With victim impact statements,
the victims fills out a form in which they
indicate what impact the offence has had,
what property was lost or damaged, what
other financial losses resulted and how theevent has disrupted their life. It provides
the victims with an opportunity to informthe court of how the offence has affected
them physically, mentally, and otherwise.
In some jurisdictions, victims are given theright to allocution, i.e, the right to deliverin person a statement on the impact thatthe offence has had on them. In Colombia,
victims have right to attend the trial andpresent their opinion about the crime. In
Egypt, the court often allows victims toappear in trial and explain to prosecutors
or judges their point of view, even when
they are not going to be called or summonedas witnesses, although it is not endowed
as the right of victims. The court may taketheir opinions into consideration in thepunishment of the offender. In Japan,
victims are allowed to present the damage
that they have suffered from the crime andtheir feelings in written statements given
before the investigating officer, or as awitness statement at the trial, if the court
decides to do so.
3. Suggestions
Victims should be allowed to have theirviews and concerns presented andconsidered at appropriate stages ofproceedings where their interests areaffected. This should be done without
unfair prejudice to the accused and must
be consistent with the relevant national
criminal justice system.
In deciding the sentence of the
defendant, some elements presented by thevictims could be considered, such as thecontent and degree of the damage, theeffect on the victim, and the punishmentof the offender. It is therefore desirable to296

consider the establishment of a system inwhich the victim will have a say in thecriminal trial, for example, such as theVictim Impact Statements of the USA.
G. Victim Involvement in Decisionmaking on Appeals
1. Problem
Victims are sometimes not satisfied withthe sentencing of the courts, but usuallywhether to appeal or not depends on thejudgement of the prosecutor.
2. Current Situation of Each Country(a) China, Egypt and India
China, Egypt and India have thesystem of private prosecution, but thestatus of the victims who haveprivately prosecuted the case aredifferent. In Egypt, publicprosecutors have the right to appeal
the court decision if the prosecutor
who prosecuted the case is notsatisfied with the decision of thecourt. Victims can not appeal evenin the case of private prosecution. In
India, victims who have brought
private prosecution can appeal. In
China, in a case of public prosecution,
if the victim does not agree with ajudgement made at the first instanceof the Local People’s Court, s/he has
the right to request the people’s
procuratorate at the same level topropose a counter-appeal, but has noright to lodge on appeal to the people’s
court at a higher level.
(b) Colombia, Indonesia and JapanIn Colombia, Indonesia and Japan,o n l y t h e p u b l i c p r o s e c u t o r,
defendants and defence counsels
have the right to appeal against the
court decision or sentencing. Usually
they don’t ask the victims for theiropinion on deciding whether toappeal.

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE
3. Suggestions
It is worth considering giving the victims
an opportunity to have their say on thedecision-making re appeals, to promote
victims participation. Usually victims are
not asked their opinion by authorities when
deciding whether to appeal.
H. Privacy Invasion by the Press
1. Problem
Mass-media sometimes reveals theprivacy of victims. The press sometimes
reports details of the case or the privacy ofvictims; and information that the victims
do not want to disclose will be made open
to the public. As a result, such victims are
obliged to suffer another victimization.
Mass-media are able to get information
about the victims’ privacy as a spectator at
the court trial.
2. Situation of Each Country(a) China, Egypt and JapanThe Courts of China, Egypt andJapan are authorized to prohibit
broadcasting of the trial. We can saythat the mental suffering of thevictims of sexual crime deriving fromthe broadcasting of witness
examination is diminished to someextent.
(b) India
There is no provision for broadcasting
the trial in India. However, the press
may, with the permission of the court,
publish a brief summary of the casewithout any invasion of the privacyof the victim, in other words, theprivacy of the victim is protected.
(c) Indonesia
In Indonesia, the court has the power
to restrict the press broadcast of atrial, but sometimes allow it to do so.
Regarding the trial of sexual crime,
privacy invasion does not occur as
witness examination can be held

under closed trial.
3. Suggestions
Generally, the privacy of victims should
be taken into account all through thecriminal judicial procedure. Especially insexual crimes, the necessity of securing theprivacy of victims in order to prevent
victimization through witness examination
should be recognized. It is desirable to take
into account the freedom of the press andbalance it with the privacy of the victims.
V. CONCLUSION
Participation of the public and victims
in the criminal justice procedure is of vital
importance to the fair and effective
administration of criminal justice. Without
the active contribution of the public andvictims, the criminal justice system isunable to fulfill its entrusted mission. In
this context, we note with pleasure thatgrowing attention has been given to thisissue, not only at the national level, butalso in the international forum.
Nevertheless, we recognize that there is
still a long way for us to go.
Various relevant issues at the stages ofprosecution and trial have been identified,and extensive discussion was made during
our debate. However, these are in no way
exhaustive. There are a lot of otherimportant issues to be studied in order tomeet the challenges we are facing.
Moreover, the suggestions contained in
the present report have not necessarily
been implemented, even in theparticipant’s respective countries. We
recognize that it is essential for criminal
justice personnel to increase theirawareness of the importance of the public
and victims’ participation, for reaching ourgoal.
At the same time, the group fully
understands and respects the systems
297

RESOURCE MATERIAL SERIES No. 56
prevailing in different countries. The
political, social and economic conditions ofsome countries may not be conducive to theimplementation of some of the measures
proposed above. The intention of the groupis to make contributions to further current
efforts to promote understanding on thisissue.

298

Yes
Yes
Yes
No
Yes
Yes
No
No
No
No
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
No
Yes
No
Yes
No
No
No
No
Yes
No
No
Yes *
Yes
Yes
Yes
No
No

Indemnification
outside &independentof judicial
system

Yes
No
Yes
No
Yes
Yes
Yes
Yes
No
No
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes

Order to pay
by the judge,
upon initiative anddiscretion of
judicial
system
No
Yes
Yes
Yes
Yes
No
No
No
Yes
No
No
Yes
No
Yes
Yes
No
No
No

Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes

Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes

Victim as civil Civil action by Return ofparty invictim in civil property
criminal
casebelonging toprocedure
the victim

Table 1

Note: If the country has the system, "Yes" is written.

If the country does not have the system, "No" is written.

*Sometimes the government provides financial assistance to victims of certain offences or acts, like terrorism, from relief
funds. This is a discretionary power of the government. Victims cannot claim this as a matter of right.

CANADACHINACOLOMBIA
EGYPT
FIJI
GAMBIA
HONG KONG
INDIA
INDONESIA
JAPAN
KENYA
MALAYSIAPAKISTANPAPUA NEW GUINEAPHILLIPINESREPUBLIC OF KOREASEYCHELLESTHAILANDCOUNTRYSYSTEM

Mediation
program;out-of-court
payment from
offender tovictimREDRESS FOR VICTIMS THROUGH CRIMINAL PROCEDURE

112TH INTERNATIONAL TRAINING COURSEREPORTS OF THE COURSE

299