RESOURCE MATERIALSERIES No. 81

UNAFEI
Fuchu, Tokyo, Japan

August 2010

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

CONTENTS
INTRODUCTORY NOTE  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

v

PART ONEANNUAL REPORT FOR 2009
Main Activities of UNAFEI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3
UNAFEI Work Programme for 2010  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  17
Appendix  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  19

PART TWOWORK PRODUCT OF THE 144th
INTERNATIONAL SENIOR SEMINAR“The Enhancement of Appropriate Measures for Victims of Crime at Each
Stage of the Criminal Justice Process”
Visiting Experts’ Papers•

The Challenges of Victimology - Past, Present and Future
by Prof. John P. J. Dussich (USA)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  41•

The Current Situation of Measures for Crime Victims in the Korean Criminal
Justice System
by Prof. Cho Kyoon Seok (Republic of Korea)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  76•

Measures for Crime Victims in the Indian Criminal Justice System
by Prof. Dr. Kumaravelu Chockalingam (India)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  97•

History and Overview of Rights and Services for Federal Crime Victims within the
United Statesby Ms. Kim Herd (USA)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  110•

Measures to Protect Victims in German Criminal Proceedings
by Ms. Martina Peter (Germany)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  125

Participants’ Papers•

Victims of Crime in Pakistan
by Mr. Muhammad Athar Waheed (Pakistan)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  138•

The Enhancement of Appropriate Measures for Victims of Crime at Each Stage of
the Philippine Criminal Justice System
by Mr. Manuel G. Co (Philippines)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  149•

The Enhancement of Appropriate Measures for Victims of Crime at Each Stage of
the Criminal Justice Process
by Mr. Donald Yamasombi (Papua New Guinea)  . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  166iii

Reports of the Seminar•

Measures for Victims of Crime at Each Stage of the Criminal Justice Process with
Special Attention to Victims of Sex Crime/ Child Victims
by Group 1  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173•

Measures for Victims of Crime at Each Stage of the Criminal Justice Process with
Special Attention to Victims of Serious Violent Crime, including Homicide
by Group 2  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177•

Measures for the Victims of Crime at Each Stage of the Criminal Justice Processwith Special Attention to Victims of Organized Crimeby Group 3  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 181

APPENDIX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 185

iv

INTRODUCTORY NOTE
It is with pride that the United Nations Asia and Far East Institute for the Prevention of Crimeand the Treatment of Offenders (UNAFEI) offers to the international community the Resource
Material Series No. 81.
This volume contains the Annual Report for 2009 and the work produced in the 144 thInternational Senior Seminar, conducted from 12 January to 9 February 2010. The main theme of
the 144th Seminar was “The Enhancement of Measures for Victims of Crime at Each Stage of the
Criminal Justice Process”.
Compared with the substantial effort devoted to ensuring the rights of the criminally accused,
relatively little attention has been paid to various needs, interests and the rights of the victims ofcrime. However, since the 1960s, a common understanding regarding the necessity of responding
to their needs and interests has grown.
This development led to the adoption of “The Declaration of Basic Principles of Justice forVictims of Crime and Abuse of Power” at the Seventh United Nations Congress on the Preventionof Crime and the Treatment of the Offenders, held in Milan, Italy in September 1985. The
Declaration was subsequently adopted by the United Nations General Assembly on 29 November
1985 (Assembly Resolution 40/34 annex), and remains to date the most fundamental United
Nations document addressing the rights of the victims of crime.
Measures taken by various countries in order to promote the interests of the victims of crime
include (i) direct financial support by the State; (ii) direct support and protection within thecriminal justice system, especially measures designed to reduce the hardship experienced whenassisting in the prosecution of offenders; and (iii) enactment of statutes designed to improve theirlegal status and establish “the rights of the victims of crime.” How these measures have been
implemented, and the degree of practical implementation, however, vary substantially from state tostate.
As 2010 marks the twenty-fifth anniversary of The Declaration of Basic Principles of Justice forVictims of Crime and Abuse of Power, it should be worthwhile for criminal justice practitioners ofMember States to review their criminal justice systems in the light of the Declaration. Accordingly,
UNAFEI, as an institute of the UN Crime Prevention and Criminal Justice Programme network,
decided to hold this Seminar.
In this issue, in regard to the 144th International Senior Seminar, papers contributed by visiting
experts, selected individual presentation papers from among the participants, and the Reportsof the Seminar are published. I regret that not all the papers submitted by the participants of the
Seminar could be published.
I would like to pay tribute to the contributions of the Government of Japan, particularly the
Ministry of Justice, the Japan International Cooperation Agency, and the Asia Crime Prevention
Foundation for providing indispensable and unwavering support to UNAFEI’s international training
programmes.

v

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. 81, Ms. Grace
Lord.
August 2010

Masaki Sasaki
Director, UNAFEI

vi

PART ONEANNUAL REPORTFOR 2009• Main Activities of UNAFEI• UNAFEI Work Programme for 2010
• Appendix

UNAFEI

MAIN ACTIVITIES OF UNAFEI

MAIN ACTIVITIES OF UNAFEI(1 January 2009 - 31 December 2009)
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 co-operation 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 reintegrationof 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. Thisso-called “problem-solving through an integrated approach” is one of the chief characteristics of UNAFEI
programmes.
Each year, UNAFEI conducts two international training courses (six weeks’ duration) and one
international seminar (five weeks’ duration). One hundred and forty nine government officials fromvarious overseas countries receive fellowships from the Japan International Cooperation Agency (JICA; an
independent administrative institution for ODA programmes) each year to participate in all UNAFEI training
programmes.
Training courses and seminars are attended by both overseas and Japanese participants. Overseas
participants come not only from the Asia-Pacific region but also from the 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 48 years of existence, UNAFEI has conducted a total of 143 international training courses
and seminars, in which approximately 3,438 criminal justice personnel have participated, representing 117
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 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 141st International Senior Seminar
1. Introduction
The 141st International Senior Seminar was held from 13 January to 13 February 2009. The main theme
was “The Improvement of the Treatment of Offenders Through the Enhancement of Community-Based
Alternatives to Incarceration”. In this Seminar, 16 overseas participants and nine Japanese participants
attended.
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. The participants werethen divided into two group workshops as follows:3

ANNUAL REPORT FOR 2009

Group 1: T he Use of Community-Based Alternatives at Pre-Trial and Trial Stages to Reduce Overcrowding
in PrisonsGroup 2: E ffective Measures to Improve the Treatment of Offenders through the Enhancement ofCommunity-Based Alternatives to Incarceration at the Post-Sentencing Stage
Each Group elected a chairperson, co-chairperson(s), a rapporteur and co-rapporteur(s) in order tofacilitate the discussions. During group discussion the group members studied the designated topics andexchanged views based on information obtained through personal experience, the Individual Presentations,lectures and so forth. Later, Plenary Meetings were held to discuss the interim outline of the Group
Workshop reports and to offer suggestions and comments. During the final 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 ReportBack Sessions, where they were endorsed as the Reports of the Seminar. The full texts of these Reports are
published in UNAFEI Resource Material Series No 79.
3. Outcome Summary(i) The Use of Community-Based Alternatives at Pre-Trial and Trial Stages to Reduce Overcrowding in
Prisons
Group One discussed the availability of bail in each represented country, along with the discretionary
powers of the police and prosecution services and interventions at the adjudication stage.
On the topic of bail, the group heard that where it is available, the number of suspects or defendants who
benefit from it is not very high. Lengthy procedures, stringent requirements, and conservative and reluctant
judges were cited as some reasons for this. The participants later discussed police discretion in granting bail.
In many of the participating countries, the police play a very important role in the criminal justice systemand have the authority to grant bail in minor cases.
On the topic of discretionary powers of the police, the participants discussed the role of the police, notonly in arrest, bail-release and disposition of cases, but also in restorative justice, mediation and alternative
dispute resolution. Regarding police discretion, the group recommended that any discretion should be
exercised within clear guidelines; that police, as the first point of contact in that criminal justice systemshould play a role in mediating settlements or minor disputes, subject to legal supervision; and that police
investigations should be completed without delay.
Following further discussions and comparisons of prosecutorial and adjudicative practices relevant to the
topic, the group agreed that each country should promote community-based alternatives to incarceration as
much as possible under its own legal system and the following recommendations were made.

4

1.

That stringent efforts be made to ensure that Alternative Dispute Resolution, Diversion, Settlement,
and Restorative Justice Practices are used at the pre-trial, mid-trial and trial stages;

2.

That alternative ‘court systems’ such as Traffic Courts, Family Courts, Small Claims Court, etc. be
implemented where applicable, which could free the judiciary to address indictable matters in a more
speedy manner;

3.

That all phases of the process - investigation, prosecution and trial - be conducted and concluded in amore efficient manner;

4.

That the discretionary powers exercised by the police and prosecution services, with respect
to closing and suspending criminal cases, should be overseen by appropriate bodies to ensureaccountability and transparency to prevent corruption;

5.

That creative public awareness campaigns be undertaken to sensitize the public about the benefits ofcommunity-based alternatives to custodial sentencing;MAIN ACTIVITIES OF UNAFEI

6.

That wider use of community-based alternatives, such as probation, suspension of executionof sentences, community service, compensation to the victim, etc. be made by judges at the
adjudication stage without prejudice to each country’s judicial system;

7

That strategies (training, increased sensitization, awareness) be developed to encourage every
sphere of the judiciary to make greater use of the legally provided mechanisms permitting the use ofcommunity-based alternatives to custodial sentencing in their sentencing practices;8.

That international co-operation for the provision of technical assistance and capacity building ought
to be pursued.

(ii) Effective Measures to Improve the Treatment of Offenders through the Enhancement of CommunityBased Alternatives to Incarceration at the Post-Sentencing Stage
Group Two discussed the above subject according to the following agenda: 1. Current mechanismsof community-based alternatives to incarceration employed by each represented country; 2. Current
situations and problems facing existing legal systems and/or practice of the above-mentioned mechanisms;
3. Countermeasures under current legal systems and/or practice of the above-mentioned mechanisms; 4.
Identification of other effective intervention models; 5. Measures to monitor and evaluate all mechanisms
discussed.
The following recommendations were made.
1.

That non-custodial options be considered as effective rehabilitation strategies;2.

That sentencing officers who utilize alternative sentencing options should be cognizant of the humanrights of the sentenced offenders;3.

That recidivism rates be continuously monitored;

4.

That risk assessments be used as efficient supervision or monitoring systems for community-based
non-custodial options;5.

That inmates be evaluated during incarceration and post-release, to follow up on their progress orotherwise;

6.

That reliable procedures be established to evaluate the effectiveness of all measures to prepare
for the acceptance and reintegration of released offenders by society, including the availability ofadequate shelter and sustenance, and community attitudes;

7.

That effective public education programmes be implemented in order to sensitize and inform thepublic about community-based alternatives to incarceration;

8.

That human and financial resources be increased to enhance the administration of community-basedalternatives to incarceration;

9.

That there is continuous research in these areas through public education forums, conferences,seminars and networking at the national, regional and international levels.

B. The 142nd International Training Course
1. Introduction
The 142nd International Training Course was held from 11 May to 29 June 2009. The main theme was“Effective Countermeasures against Overcrowding of Correctional Facilities”. In this Course, 14 overseas
participants, two international observers and eight Japanese participants attended.
2. Methodology
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

5

ANNUAL REPORT FOR 2009

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 threegroups to discuss the following topics under the guidance of faculty advisers:
Group 1: Effective Countermeasures against Overcrowding of Correctional Facilities
Group 2: Sentencing and Alternative Punishment
Group 3: Post-Sentencing Disposition and Treatment Measures
The three groups elected a chairperson, co-chairperson(s), rapporteur and co-rapporteur(s) to organize
the discussions. The group members studied the designated subtopics and exchanged their views basedon information obtained through personal experience, the Individual Presentations, lectures and so forth.
During the course, Plenary Meetings were held to discuss the interim outline of the Group Workshop
reports and to offer suggestions and comments. During the final Plenary Meeting the drafts of the Group
Workshop reports were examined and critiqued by all the participants and the UNAFEI faculty. Basedon 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 full texts of the reports are publishedin full in Resource Material Series No. 80.
3. Outcome Summary(i) Effective Countermeasures against Overcrowding of Correctional Facilities
The group discussed the above subject by dividing the matter into three subtopics: (i) alternatives to pretrial detention; (ii) diversion from criminal justice procedure; and (iii) speedy trial measures.
With regard to alternatives to pre-trial detention, the group discussed police power to release suspects
on bail; house arrest or police detention; placing a suspect under the supervision of a person or institution;
electronic monitoring; prohibiting a suspect from leaving a particular area; investigation without arrest;
prohibiting a suspect/accused from going to particular places or meeting named individuals; confiscation of
the suspect’s passport; and release with an order to pledge financial or other property, such as bail.
Regarding diversion from criminal justice procedure, the group discussed absolute or conditional
discharge; decriminalization; and restorative justice. Regarding absolute or conditional discharge, it
was argued that victims should be able to request independent review of such decisions. Regarding
decriminalization, the group agreed that while it can be effective, public opinion must be obtained andconsidered before any decision is made. Regarding restorative justice, the group identified its merits(alleviates overcrowding; saves time and money; lessens the workload of criminal justice personnel;
satisfies victims; and avoids stigmatizing offenders) and demerits (lack of specific and general deterrence;
does not halt recidivism; risk of injustice to some offenders; and public insecurity). The group agreed thatwhile the definition of what constitutes a minor offence differs from country to country, restorative justice
should only be used for minor cases, according to the jurisdiction in which the offence was committed. The
group recommended that the establishment of an independent and neutral mediating body in the process isfundamental.
Regarding speedy trial measures, the group discussed (i) summary proceedings and speedy trial and (ii)pre-trial preparation systems, which the group agreed were effective in reducing overcrowding. The group
identified some factors in a slow trial process:••••No fixed timeframe for investigation and prosecution;
Minimum number of judges in some countries;
Unclear and lengthy legal processes;
Behaviour of stakeholders such as defence lawyers.

The group made the following recommendations:
1.

6

There is a need to set fixed timeframes for investigation and prosecution; however, there should be aprovision to allow for extensions of the timeframe depending on the nature of each case;MAIN ACTIVITIES OF UNAFEI

2.

There should be flexibility in the recruitment procedure or policies and appointment of sufficientnumbers of judges;

3.

The use of summary proceedings is recommended to avoid wasting time and resources;

4.

There is a need to utilize pre-trial preparation/arrangement.

(ii) Sentencing and Alternative Punishment
The group carefully considered the theme according to the following agenda: (i) alternative punishments
to custodial sanction, including their functions and dysfunctions, sentencing policy, and difficulties in
implementing non-custodial measures; (ii) alternative punishments and other interests; (iii) other issues
relative to justice policy.
The group discussed the above topic with consideration for the diverse cultural, political and socioeconomic background of each participant’s country, and its recommendations also take into considerationeach country’s readiness for change. At the outset, the group recommended that the Tokyo Rules 8.1 and 8.2
give a sample of the alternative sentences which could be implemented by countries according to need.
The group agreed that overcrowding exists in the correctional facilities of each of the represented
countries, and that measures to reduce overcrowding should begin even at the sentencing stage. Utilizing
alternatives to imprisonment is a sustainable way of effecting behavioural change within the community, andserves the interest of both the offender and society.
Regarding topic (i), alternative punishments to custodial sanctions, the group considered types of
non-custodial sanctions and how these ought to be prioritized to increase effectiveness and best reduce
overcrowding. They also discussed the functions and dysfunctions of non-custodial sanctions andadministrative or other structures that can support alternative punishments. The final matter for discussion
under this topic was sentencing policy, such as how to apply the scale of existing penal value, and difficulties
and possible solutions in utilizing non-custodial sanctions.
Regarding topic (ii), alternative punishments and other interests, the group discussed the importanceof upholding victims’ rights; upholding social security; penal function and alternative punishments; and theoffender’s human rights.
Under the final topic, other issues relative to justice policy, the group highlighted the importance of
speedy trial. It also addressed the complex topic of decriminalization. Finally, the group addressed thesystem of restorative justice. The group agreed that it is an interesting concept with some merit in casesof minor crimes, but that there may be difficulties in implementing the model in cultures which favour aretributive model of justice.
Having carefully considered the situation and practices in each participating country, the group agreed
upon the following recommendations.
1.

Each non-custodial sentence has its own merits and demerits; the most appropriate sentence shouldbe imposed on a case-by-case basis with due regard for all circumstances of the case;2.

All agencies in the criminal justice system, including NGOs, should collaborate to ensure that thesystem works smoothly and seamlessly when implementing and utilizing non-custodial measures;

3.

Open dialogue in a public forum is required to increase the public’s understanding of the functions/dysfunctions and pros and cons of custodial and non-custodial sentences;

4.

The public should be informed of the respective costs of imprisonment and non-custodial sanctions;

5.

Countries which cannot immediately establish a large probation service should utilize the skills of
reputable members of the community who are willing to serve as voluntary probation officers, undera core team of professional advisers;

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ANNUAL REPORT FOR 20096.

An offender’s ability to pay a fine should be assessed at the sentencing stage. The offender should bepermitted to make the payment in instalments if unable to pay the total amount at once;

7.

Social enquiry reports can be an important tool for deciding an appropriate sentence;

8.

Certain offences should be decriminalized; thus, persons who commit such offences would bedirected to undergo rehabilitation rather than imprisoned;

9.

Speedy trial should be implemented as a feature of the law as it is the most important step toprevent unnecessary detention;

10. To facilitate the introduction of alternative sanctions, many legal systems must make administrativechanges and amend their laws.

(iii) Post-Sentencing Disposition and Treatment Measures
The group divided its discussion into two parts: (i) post-sentencing dispositions (which lower prison
populations); and (ii) effective treatment programmes (which lower recidivism). The group also addressed
evaluation of treatment programmes.
Under “post-sentencing dispositions” the group addressed parole; halfway houses; work/study release;remission; pardon; other measures related to early release; and other forms of early release. Participants
agreed on the effectiveness of all schemes in reducing prison populations. Concerns were raised about
victims’ negative attitude to early release and the risk of releasing dangerous offenders, the latter requiring
accurate scientific identification of offenders. The group considered the administrative measures necessary
for remission and made the following recommendations: computerization of records and the creation of a
sufficient database; monitoring; public education; and the setting of conditions of eligibility.
Under “effective treatment programmes” the group addressed assessment and classification of inmates,in which the seriousness of the crime committed, types of offences, length of sentence and security risk tostaff and other prisoners must be considered. They also addressed evidence-based treatment programmes,
which they defined to mean programmes whose effectiveness in reducing recidivism has been proved
through rigorous statistical reviews. The group further considered “other effective programmes”. They
considered the following such programmes: family visits, sports, educational/vocational training, mental
health services, religious or spiritual services, aftercare supervision of discharged offenders, social service
treatment programmes for discharged inmates, offenders’ criminal records, and public education, campaign
and awareness-raising for the prevention of crime and the treatment of offenders.
On the subject of evaluation of treatment programmes, the group discussed items necessary forevaluation and listed possible items thus: recidivism, cost-effectiveness, and success rate. Evaluation canbe macro or micro in focus, and timing of the evaluation is another important variable. The group debatedwhom should conduct an evaluation and agreed that third party evaluation is a good option. The group
noted that evaluation: informs authorities of the effectiveness of their programmes; maintains the quality of
programmes; and verifies for the taxpayer the effectiveness of programmes. The weaknesses of evaluation
are that “success” can be defined ambiguously and that standards of evaluations are not easily set. Using
third parties and widely accepted standards could help to address these weaknesses.
The group agreed that all post-sentencing dispositions and treatment programmes discussed wereeffective in tackling overcrowding and recommended development and endeavour in the following areas:81.

Acquisition of support from government authorities;

2.

Exploration of resources;

3.

Soliciting of public acceptance of and support for rehabilitation of offenders;

4.

Comprehensive, complementary, and aligned strategies to ensure that post-sentencing dispositions,
treatment programmes and publicity campaigns are mutually reinforcing and reflect the aims of
reducing overcrowding and rehabilitating offenders.

MAIN ACTIVITIES OF UNAFEI

C. The 143rd International Training Course
1. Introduction
The 143rd International Training Course was held from 28 September to 5 November 2009. The main
theme was “Ethics and Codes of Conduct for Judges, Prosecutors and Law Enforcement Officials”. Ten
overseas participants and five Japanese participants attended.
2. Methodology
The participants of the 143rd Course endeavoured to explore the investigation, prosecution and trial of
cybercrime. This was accomplished primarily through a comparative analysis of the current situation andthe problems encountered. The participants’ in-depth discussions enabled them to put forth effective andpractical 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. To facilitate discussions, the participants weredivided into two groups.
Each Group elected a chairperson, co-chairperson, rapporteur and co-rapporteur(s) to organize thediscussions. The group members studied the situation in each of their countries and exchanged their views
based on information obtained through personal experience, the Individual Presentations, lectures and soforth.
Group 1: Ethics and Codes of Conduct for Judges, Prosecutors and Law Enforcement Officials
Group 2: Codes of Conduct for Judges, Prosecutors and Law Enforcement Officials
Plenary Meetings were later held to discuss the interim outline of the Group Workshop reports and tooffer 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, theGroups further refined their reports and presented them in the Report-Back Sessions, where they wereendorsed as the reports of the Course. The reports will be published in full in UNAFEI Resource Material
Series No. 80.
3. Outcome Summary(i) Ethics and Codes of Conduct for Judges, Prosecutors and Law Enforcement Officials
The group discussed the above topic according to the following agenda: 1. Current situation and issues
concerning corruption or misconduct in the judiciary and prosecutorial/law enforcement authorities; 2. Legal
ethics, professional responsibilities and codes of conduct in the judiciary and prosecutorial/law enforcement
authorities; 3. Other measures to prevent corruption and misconduct in the judiciary and prosecutorial/
law enforcement authorities; 4. Appointment, education and training; 5. Procedural regulations; and 6.
Recommendations.
Regarding misconduct and misconduct in the judiciary, most participants stated that significant problems
exist in the respective countries, and that inefficiency and bribery are a major obstacle to accessing justice.
All agreed that poor remuneration, absence of effective monitoring systems and weak implementation ofexisting codes of conduct are major contributing factors to this situation.
Regarding codes of conduct, most countries have such codes for civil servants generally, but they do
not apply to the justices of the highest courts. All members agreed that codes are necessary and that
careful attention should be given to their implementation. For the exercise of discretionary power, effective
guidelines are also considered necessary by the group members.
In terms of other measures to prevent corruption and misconduct, the group agreed that a separate
independent oversight committee could be effective; they likewise agreed on this point in terms ofoverseeing that procedural regulations were adhered to. On the matter of training, the group agreed that
initial training must be of sufficient length and must be supplemented by periodic refresher in-service
training.

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ANNUAL REPORT FOR 2009

The group emphasized the 3Rs essential in fighting corruption:
REFRAIN: Do not participate in corruption;
RESIST:
Resist corruption whenever and wherever detected;
REPORT: If all fails, report to the authorities.
The group formulated the following recommendations.
1.

The appropriate authorities should adopt codes of conduct and codify other relevant matters;

2.

The codes should accommodate core values like independence, impartiality, integrity, propriety,equality, competence and diligence;

3.

Judges, prosecutors and law enforcement officials should have their own specific codes depending on
the legal system and job concerned;

4.

Discretionary power should be exercised with reference to transparent guidelines. Those who
exercise such power should be held accountable to a proper authority. Judges and prosecutors shouldmake clear the reasons for their final dispositions;5.

An internal independent oversight committee should monitor adherence to the codes of conduct.
This body may include members from outside the jurisdiction, and its membership should notchange frequently. An outside oversight body, like the Inspector General’s Office in the USA, may
look after serious violations;

6.

Review of performance evaluation systems is required, and job rotation and asset declarations should
be considered;

7.

Effective complaint reporting systems should be developed and public officers who discover
misconduct should be obliged to report it;

8.

Codes of conduct should be disseminated inside and outside the relevant professional organizations;9.

Selection/recruitment should be transparent, effective and merit-based, and should apply equally toall. A basic legal training system, such as Japan’s, may be adopted;

10. The career and professional and personal moral and ethical behaviour of candidates for judicial
appointment may be examined;
11. Periodical on-the-job training should supplement initial training;
12. Moral and ethical education should be incorporated into the education system from elementary level;
13. Disciplinary procedures should be clearly delineated and violations should be dealt with severely;
14. Proceedings, violations and disciplinary measures should be transparent;
15. Judicial independence, job security and adequate remuneration should be assured;
16. Strong political will is required to curb corruption, as is co-operation from NGOs and the media.

(ii) Codes of Conduct for Judges, Prosecutors and Law Enforcement Officials
Group Two discussed the above topic according to an agenda similar to that of Group One. The group first
defined the term “corruption” to mean “the abuse of entrusted power for private gain by a public official”.
The group identified low remuneration as a cause of corruption but differed as to the degree to which it
is a cause. As a basis for its later discussions the group assumed that it had the duty to design a code of
conduct for criminal justice officials of a newly established country. While such a code should incorporate the
Bangalore Principles, the group agreed that the code should also be “localized” and that prior to establishinga code a country should assess the capacity of its judiciary, prosecution and police. The group agreed that10

MAIN ACTIVITIES OF UNAFEI

implementation of any code is vital and that an independent authority should be established to monitor
compliance.
For judges, the group members listed the following principles as important: some members felt that the
principles could be prioritized, while others felt that only a person exhibiting all of the principles would be agood judge:(i) Independence;(ii) Impartiality and Integrity;(iii) Propriety;(iv) Equality, Competence and Diligence
For prosecutors, the group identified the following minimum standards of behaviour:(i) Professional Conduct and Competency: prosecutors must be at all times well-informed of changes tothe law;(ii) Independence;(iii) Impartiality;(iv) Role in Criminal Proceedings: prosecutors must treat the defendant fairly, and consider the rights ofthe victim and the greater community too;(v) Co-operation (with other law enforcement officials).
For law enforcement officials, the group listed the following principles to be included in a code of conduct:(i) Honesty, Integrity, Confidentiality and Spirit of Sacrifice;(ii) Fairness, Tolerance, Appearance and Impairment: police officers must remain calm at all times,
maintain good conduct and appearance and must not be under the influence of drugs or alcohol whileon duty;(iii) Use of Force, Abuse of Authority and Lawful Order: the police must only exert force to the extent
that it is absolutely necessary;(iv) Co-operation and Partnership: police must establish good working relationships with theirinternational counterparts.
Regarding appointment, education and training, the group agreed that selection of judges, prosecutors
and law enforcement officials should be based on merit, with consideration for the applicant’s integrity.
Education should not merely be lecture-based, but should include adult learning methods.
Following its discussions, the group observed that international covenants and instruments that relate
to codes of conduct and ethical behaviour of judges, prosecutors and law enforcement officials are minimum
standards only. The group further observed that there are certain values common to all criminal justiceofficials but that the aspects and missions of the organizations vary and will therefore have different impacts.
The group agreed that a written code of conduct for judges, prosecutors and law enforcement officials
was indeed important to fight corruption and unethical conduct. Such a code should reflect the citizens’
aspirations for their justice system and should incorporate the traditional and social and cultural values ofthe people. It should also address historical events that might have led to the establishment of the code.
The code of conduct must be coupled with efforts to train officials on a continuous basis on the required
behaviour and ethics. Constant advisory support should be provided and harsh punishment should be
implemented in the event of violations.
The work of judges, prosecutors and law enforcement officials and the decisions made by them affect thedaily life of the citizenry. A high level of ethical behaviour and equality and fairness in the performance of theduties of judges, prosecutors and law enforcement officials are not only favourable, but can be considered aright of all citizens.

11

ANNUAL REPORT FOR 2009

D. Special Seminars and Courses
1. The Fifth Seminar on Criminal Justice for Central Asia
The Fifth Seminar on Criminal Justice for Central Asia was held from 23 February to 6 March 2009.
The main theme was “Countermeasures for Drug Offences and Related Crimes and Enhancement ofInternational Co-operation in the Criminal Justice Process”. Eleven criminal justice officials from Central
Asian countries (Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan) attended.
2. The 14th Special Seminar for Senior Criminal Justice Officials of the People’s Republic of China
The 14th Special Seminar for Senior Criminal Justice Officials of the People’s Republic of China washeld from 2 to 19 March 2009. The main theme was “Enhancement of Community-Based Alternatives toIncarceration at All Stages of the Criminal Justice Process”. Ten participants and three course counsellors
attended.
3. The Fourth Country Specific Training Course on the Community-Based Treatment of Offenders throughthe Holistic Approach to Volunteer Resource Development for the Philippines
The Fourth Country Specific Training Course on the Community-Based Treatment of Offenders throughthe Holistic Approach to Volunteer Resource Development for the Philippines was held from 29 June to 9
July 2009. One administrator from the Parole and Probation Administration, 12 Parole and Probation Officers
and one Volunteer Probation Aide from the Philippines discussed measures to improve communication andfeedback, and measures to promote Volunteer Probation Aide Associations.
4. The Twelfth International Training Course on the Criminal Justice Response to Corruption
The Twelfth International Training Course on the Criminal Justice Response to Corruption was held from13 July to 2 August 2009. In this Course, 17 overseas participants and six Japanese participants, all of whomwere officials engaged in corruption control, comparatively analysed the current situation of corruption,
methods of combating corruption, and measures to enhance international co-operation.
5. The 15th Special Seminar for Senior Criminal Justice Officials of the People’s Republic of China
The 15th Special Seminar for Senior Criminal Justice Officials of the People’s Republic of China was heldfrom 16 November to 3 December 2009. Fifteen participants attended.
6. The Third Regional Seminar on Good Governance for Southeast Asian Countries
The Third Regional Seminar on Good Governance for Southeast Asian Countries, jointly hosted by
UNAFEI, the Department of Justice of the Republic of the Philippines and the UNODC Regional Centre,
Bangkok was held from 9 to 12 December 2009 in Manila, the Philippines. The main theme was “Measures
to Freeze, Confiscate and Recover Proceeds of Corruption, Including Prevention of Money Laundering”.
Approximately 23 participants from seven countries, comprising judges, prosecutors and other law
enforcement officials attended.

III. TECHNICAL CO-OPERATION
A. Regional Training Programmes
1. Short-Term Experts in Kenya
Two UNAFEI professors were dispatched to Kenya, from 25 July to 8 August 2009, to carry out research
for the next phase of the Project for Capacity Building of Child Care and Protection Officers in the Juvenile
Justice System of Kenya. One professor returned to Kenya from 5 October to 12 December 2009 to assist in
the next phase of the Project.
2. Short-Term Experts in Latin America
Two UNAFEI faculty members visited Costa Rica and Nicaragua from 10 to 24 August 2009. In Costa
Rica they jointly hosted, with ILANUD, a course on Criminal Justice Reform in Latin America in which
seven countries were represented. In Nicaragua, they held a follow-up seminar on the specific situation inthat country.
3. Short-Term Expert in the Philippines
A UNAFEI professor was dispatched from 31 August to 7 September 2009 as a Short-Term Expert toparticipate in the Training Course for Professional Probation Officers.

12

MAIN ACTIVITIES OF UNAFEI

B. Third Regional Seminar on Good Governance for Southeast Asian Countries
UNAFEI, the Department of Justice of the Republic of the Philippines and the UNODC Regional
Centre for Asia and the Pacific held the Third Regional Seminar on Good Governance for Southeast AsianCountries in Manila, the Philippines from 9 to 12 December 2009. Approximately 23 participants from sevencountries, Cambodia, Indonesia, the Lao PDR, Malaysia, Myanmar, the Philippines, and Thailand, attended
the Seminar. The main theme of the Seminar was “Measures to Freeze, Confiscate and Recover Proceeds ofCorruption, Including Prevention of Money Laundering”.
IV. INFORMATION AND DOCUMENTATION SERVICES
The Institute continues to collect data and other resource materials on crime trends, crime prevention
strategies and the treatment of offenders from Asia, the Pacific, Africa, Europe and the Americas, andmakes use of this information in its training courses and seminars. The Information and Library Serviceof the Institute has been providing, upon request, materials and information to United Nations agencies,
governmental organizations, research institutes and researchers, both domestic and foreign.

V. PUBLICATIONS
Reports on training courses and seminars are published regularly by the Institute. Since 1971, theInstitute has issued the Resource Material Series, which contains contributions by the faculty members,
visiting experts and participants of UNAFEI courses and seminars. In 2009, the 77th, 78th and 79th editionsof the Resource Material Series were published. Additionally, issues 128 to 130 (from the 141st Seminar to
the 143rd Course respectively) of the UNAFEI Newsletter were published, which included a brief report oneach course and seminar and other timely information. These publications are also available on UNAFEI’s
web site http://www.unafei.or.jp/english.

VI. OTHER ACTIVITIES
A. Public Lecture Programme
On 30 January 2009, 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 141stInternational Senior 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, through comparativeinternational study, by inviting distinguished speakers from abroad. This year, Dr. Kittipong Kittayarak,
Permanent Secretary for Justice, Ministry of Justice, Thailand, and Ms. Christine Glenn, Chief Executive of the
Parole Board of England and Wales, were invited as speakers. They presented papers entitled “The Probation
Service in Thailand: 30 Years in Fostering Reintegration” and “Tilting the Scales”, 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
Former Professor Tae Sugiyama, Professor Tetsuya Sugano, and Mr. Yuichi Kitada (Staff) visited Manila,
the Philippines, from 12 to 17 January 2009 to attend the “In-country Training Programme on Revitalizationof the Volunteer Probation Aide System”.
Former Professor Junichiro Otani and Mr. Hitoshi Nakasuga (former Co-Deputy Chief of the Secretariat)
visited Singapore from 15 to 20 February to undertake research on community-based treatment alternatives
to incarceration in preparation for the United Nations Congress on Crime Prevention and Criminal Justice,held in Brazil in April 2010.
Former Director Keiichi Aizawa visited Korea from 11 to 13 March to attend the International Seminar
and Ceremony to Commemorate the 20th Anniversary of the Korean Institute of Criminology. Mr. Aizawa

13

ANNUAL REPORT FOR 2009

made a speech to the Seminar on the topic of “Criminal Justice Policy and International Co-operation”.
Former Deputy Director Takeshi Seto, Professor Naoyuki Harada and Mr. Ikuo Kosaka (Staff) visited
Manila, the Philippines from 24 to 28 March to prepare for the Third Regional Seminar on Good Governancefor Southeast Asian Countries, held in Manila in December 2009, co-hosted by The National Prosecution
Service, Department of Justice of the Philippines, the United Nations Office on Drugs and Crime (UNODC)
Regional Centre for East Asia and the Pacific, and UNAFEI.
Former Director Keiichi Aizawa, Professor Naoyuki Harada, former Professor Tae Sugiyama and former
Professor Junichiro Otani visited Vienna, Austria from 16 to 24 April to attend the 18th Session of theCommission on Crime Prevention and Criminal Justice. The Director made a statement to the Commission
and Ms. Sugiyama sat as a panellist in the Plenary Discussion Session on “Penal Reform and the Reductionof Prison Overcrowding”.
Former Director Keiichi Aizawa, Professor Junichi Watanabe and Mr. Hideo Takahashi (Staff) visited
Bangkok, Thailand from 30 June to 5 July 2009 to attend the Regional Preparatory Meeting for the Twelfth
Congress on Crime Prevention and Criminal Justice, held in Brazil in April 2010.
Professor Tetsuya Sugano and Professor Toru Kawaharada were dispatched to Nairobi, Kenya from 25
July to 8 August 2009 to carry out research for the next phase of the Project for Capacity Building of Child
Care and Protection Officers in the Juvenile Justice System of Kenya.
Director Masaki Sasaki, Professor Ayako Sakonji and Mr. Masato Fujiwara (Co-Deputy Chief of theSecretariat) visited China from 10 to 19 August 2009 to meet Chinese criminal justice officials in preparation
for the 15th Seminar on Crime Prevention and Criminal Justice for the People’s Republic of China, held at
UNAFEI in November 2009.
Former Deputy Director Takeshi Seto and Professor Jun Oshino visited Costa Rica and Nicaragua from10 to 24 August 2009. In Costa Rica, they jointly hosted, with ILANUD, a course on Criminal Justice Reformin Latin America in which seven countries were represented. In Nicaragua, they held a follow-up seminar on
the specific situation in that country.
Director Masaki Sasaki visited Cambridge, England from 29 to 31 August 2009 to attend the 27th
International Symposium on Economic Crime. Director Sasaki made a keynote address at the Symposium.
The Director also visited Stockholm, Sweden, from 1 to 3 September 2009, to attend a meeting at the
Ministry of Justice.
Professor Ayako Sakonji was dispatched to the Philippines from 31 August to 7 September 2009 as a
Short-Term Expert to participate in the Training Course for Professional Probation Officers.
Professor Naoyuki Harada and Mr. Ikuo Kosaka (Staff) visited Manila, the Philippines from 7 to 11
September 2009 to make preparations for the Third Regional Seminar on Good Governance for Southeast
Asian Countries, held in Manila from 9 to 12 December 2009.
Professor Ayako Sakonji returned to the Philippines from 27 September to 10 October 2009 to participate
in the Monitoring and Evaluation Programme for Volunteer Probation Aide Activity.
Professor Tetsuya Sugano returned to Kenya on 5 October to 12 December 2009 to assist in the next
phase of the Project for Capacity Building of Child Care and Protection Officers in the Juvenile Justice
System of Kenya.
Professor Junichi Watanabe went to Barbados from 24 October to 2 November 2009 to attend the 11th
Annual General Meeting and Conference of the International Corrections and Prisons Association.
Professor Junichi Watanabe and Mr. Kazuyuki Nagata (Staff) visited Perth, Australia from 14 to 21
November 2009 to attend the 29th Asian and Pacific Conference of Correctional Administrators.

14

MAIN ACTIVITIES OF UNAFEI

Director Masaki Sasaki, Deputy Director Haruhiko Ukawa, Professor Naoyuki Harada, Ms. Yoshiko
Kawashima (Staff) and Mr. Ikuo Kosaka (Staff) went to Manila, the Philippines, to attend the Third Regional
Seminar on Good Governance for Southeast Asian Countries, which was held from 9 to 12 December
2009. The topic of the Seminar was “Measures to Freeze, Confiscate and Recover Proceeds of Corruption,
including Prevention of Money-Laundering”. UNAFEI, the Department of Justice of the Republic of thePhilippines and the UNODC Regional Centre for East Asia and the Pacific co-hosted the Seminar.
Professor Naoyuki Harada visited Hong Kong, China from 14 to 17 December 2009 to attend the Fourth
ICAC Symposium co-hosted by the Independent Commission against Corruption (ICAC) and the European
Anti-Fraud Office (OLAF).
Professor Jun Oshino visited Courmayeur, Italy, from 9 to 14 December 2009 to attend the annual
Co-ordination Meeting of the Programme Network Institutes.

D. Assisting ACPF Activities
UNAFEI co-operates 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.
E. Courtesy Visit of Her Royal Highness Princess Bajrakitiyabha of Thailand
Her Royal Highness Princess Bajrakitiyabha of Thailand paid a courtesy visit to UNAFEI on 25 August
2009. HRH Princess Bajrakitiyabha was accompanied by senior officials of the Office of the Attorney
General of Thailand. The Royal delegation toured the UNAFEI facilities and attended a briefing on
UNAFEI’s activities with Director Masaki Sasaki and UNAFEI faculty. HRH Princess Bajrakitiyabha isherself a public prosecutor and a goodwill ambassador for UNIFEM and has a particular interest in thetreatment of female offenders in the criminal justice system. Her Royal Highness previously met a UNAFEI
delegation headed by Director Keiichi Aizawa at the 18th Session of the Commission on Crime Prevention
and Criminal Justice in Vienna in April 2009.
VII. HUMAN RESOURCES
A. Staff
In 1970, the Government of Japan assumed full financial and administrative responsibility for running
the Institute. The Director, Deputy Director and approximately nine professors are selected from among
public prosecutors, the judiciary, corrections, probation and the police. UNAFEI also has approximately 15
administrative staff members, who are appointed from among officials of the Government of Japan, and alinguistic adviser. Moreover, the Ministry of Justice invites visiting experts from abroad to each training
course and seminar. The Institute has also received valuable assistance from various experts, volunteers andrelated agencies in conducting its training programmes.
B. Faculty Changes
Ms. Tae Sugiyama, formerly a Professor of UNAFEI, was transferred and appointed a Senior Probation
Officer of Tokyo Probation Office on 1 April 2009.
Mr. Junichiro Otani, formerly a Professor of UNAFEI, was transferred and appointed an attorney of the
Criminal Affairs Bureau of the Ministry of Justice on 1 April 2009.
Mr. Ryuji Tatsuya, formerly a Professor of UNAFEI, was transferred and appointed Chief of theInternational Affairs Division of Fukushima Prison on 1 April 2009.
Mr. Koji Yamada, formerly a Professor of UNAFEI, was transferred and appointed a Senior Probation
Officer of Matsuyama Probation Office on 1 April 2009.
Ms. Fumiko Akahane, formerly a public prosecutor of Tokyo District Public Prosecutors Office, joined
UNAFEI as a Professor on 1 April 2009.

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ANNUAL REPORT FOR 2009

Mr. Toru Kawaharada, formerly a Senior Probation Officer of Utsunomiya Probation Office, joined
UNAFEI as a Professor on 1 April 2009.
Ms. Ayako Sakonji, formerly a probation officer of Osaka Probation Office, joined UNAFEI as a Professoron 1 April 2009.
Mr. Junichi Watanabe, formerly a specialist of the Legal Affairs Section of the Correction Bureau of the
Ministry of Justice, joined UNAFEI as a Professor on 1 April 2009.
Mr. Keiichi Aizawa, Director of UNAFEI, was appointed to the Supreme Prosecutors Office on 17 July2009.
Mr. Masaki Sasaki, formerly the Chief of Naha District Public Prosecutors Office, was appointed Directorof UNAFEI on 21 July 2009.
Mr. Takeshi Seto, Deputy Director of UNAFEI, was transferred and appointed to Tokyo High Prosecutors
Office on 24 September 2009.
Mr. Haruhiko Ukawa, formerly a public prosecutor of Tokyo High Public Prosecutors Office, wasappointed Deputy Director of UNAFEI on 24 September 2009.

VIII. FINANCESThe Ministry of Justice primarily provides the Institute’s budget. UNAFEI’s total budget for its
programmes is approximately ¥101 million per year. Additionally, JICA and the ACPF provide assistance for
the Institute's international training courses and seminars.

16UNAFEI
MAIN
WORK
ACTIVITIESPROGRAMMEOF UNAFEI
FOR 2010

UNAFEI WORK PROGRAMME FOR 2010
I. TRAINING
A. The 144th International Senior Seminar
The 144th International Senior Seminar was held from 12 January to 9 February 2010. The main themeof the Seminar was “The Enhancement of Appropriate Measures for Victims of Crime at Each Stage of the
Criminal Justice Process”. Fourteen overseas participants, seven Japanese participants and two Japaneseobservers attended.

B. 145th International Training Course
The 145th International Training Course was held from 12 May to 18 June 2010. The main theme of the
Course was “Effective Resettlement of Offenders by Strengthening ‘Community Reintegration Factors’”.
Ten overseas participants, two overseas course counsellors and eight Japanese participants attended.
C. 146th International Training Course
The 146th International Training Course is scheduled for 25 August to 1 October 2010. The main themeof the Course is “Attacking the Proceeds of Crime: Identification, Confiscation, Recovery and Anti-Money
Laundering Measures”. Ten overseas participants and nine Japanese participants will attend.
D. The Tenth Training Course on the Juvenile Delinquent Treatment System for Kenya
The Tenth Training Course on the Juvenile Delinquent Treatment System for Kenya was held from 15
February to 11 March 2010. Participants from Kenya reviewed their progress in regard to improving thetreatment of juveniles in correctional institutions and in the community and the progress they have made inestablishing a Volunteer Children’s Officers programme.
E. The Sixth Seminar on Criminal Justice for Central Asia
The Sixth Seminar on Criminal Justice for Central Asia was held from 3 to 18 March 2010. The main
theme of the Seminar was “Effective Criminal Justice Measures against Drug Offences and Prevention ofInternational Drug Trafficking”. Nine government officials from four Central Asian countries, Kazakhstan,
Kyrgyzstan, Tajikistan and Uzbekistan, attended.
F. The Fifth Country Specific Training Course on the Community-Based Treatment of Offenders
through the Holistic Approach to Volunteer Resource Development for the Philippines
The Fifth Country Specific Training Course on the Community-Based Treatment of Offenders throughthe Holistic Approach to Volunteer Resource Development for the Philippines was held from 22 June to 2
July 2010. The number of participants, who were Parole and Probation Officers and Volunteer Probation
Aides, was ten. They discussed measures to improve the probation system and the promotion of Volunteer
Probation Aides.
G. The 13th International Training Course on the Criminal Justice Response to Corruption
The 13th International Training Course on the Criminal Justice Response to Corruption will be held from18 October to 12 November 2010. In this Course, Japanese and overseas officials engaged in corruption
control will comparatively analyse the current situation of corruption, methods of combating corruption andmeasures to enhance international co-operation.
II. TECHNICAL CO-OPERATION
Regional Training Programmes
1. Short-Term Experts in Latin America
Two faculty members visited Costa Rica and Honduras in August 2010. In Costa Rica they jointly hosted,with ILANUD, a course on Criminal Justice Reform in Latin America in which several countries wererepresented. In Honduras, they held a follow-up seminar on the specific situation in that country.
2. Short-Term Experts in Kenya
Two UNAFEI professors will be dispatched to Kenya between 31 July and 12 September 2010. The
professors will assist the Children’s Services Department of the Ministry of Gender, Children and Social

17

ANNUAL REPORT FOR 2009

Development, and other juvenile justice agencies, in capacity building for child care and protection officers in
the juvenile justice system.

B. Fourth Regional Seminar on Good Governance for Southeast Asian Countries
The Fourth Regional Seminar on Good Governance will be held from 7 to 9 December 2010, in Manila,
the Philippines. The main theme of the Seminar will be “Securing Protection and Co-operation of Witnesses
and Whistle-blowers”. Approximately 25 participants from Southeast Asian countries will attend.

18

MAIN ACTIVITIESAPPENDIXOF UNAFEI

APPENDIX
MAIN STAFF OF UNAFEI
Mr. Masaki Sasaki
Mr. Haruhiko Ukawa

Director
Deputy Director

Faculty
Mr. Motoo Noguchi
Mr. Haruhiko Higuchi
Mr. Naoyuki Harada
Ms. Fumiko Akahane
Mr. Jun Oshino
Mr. Tetsuya Sugano
Mr. Toru Kawaharada
Ms. Ayako Sakonji
Mr. Junichi Watanabe
Ms. Grace Lord

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

Secretariat
Mr. Masahiro Iida
Mr. Masato Fujiwara
Mr. Koji Kobayashi
Mr. Masaaki Kojitani
Mr. Kenichiro Koiwa
Ms. Yoshiko Kawashima
Mr. Hideo Takahashi

Chief of Secretariat
Co-Deputy Chief of Secretariat
Co-Deputy Chief of Secretariat
Chief of General and Financial Affairs Section
Co-Chief of Training and Hostel Management Affairs Section
Co-Chief of Training and Hostel Management Affairs Section
Chief of International Research Affairs Section

AS OF 31 DECEMBER 200919

ANNUAL REPORT FOR 20092009 VISITING EXPERTS
THE 141ST INTERNATIONAL SENIOR SEMINAR
Mr. Kittipong Kittayarak

Permanent Secretary for Justice
Ministry of Justice
ThailandMs. Christine Glenn

Chief Executive
Parole Board of England and Wales
United Kingdom

Mr. Ismael Juanga Herradura

Administrator
Parole and Probation Division
Department of Justice
Philippines

Mr. Bala Reddy

Principal Senior State Counsel
Head, State Prosecution Division
Attorney-General’s Chambers
SingaporeTHE 142ND INTERNATIONAL TRAINING COURSE
Mr. Rob Allen

Director
International Centre for Prison Studies
King’s College, University of London
United Kingdom

Mr. Peter Ng Joo Hee

Director of PrisonsSingapore Prison Service
Ministry of Home Affairs
SingaporeProf. Dr. Dr. h.c. Hans-Jörg Albrecht

Director
Department of Criminal Law
Max-Planck Institute for Foreign andInternational Criminal Law,
FreiburgGermany

THE 143RD INTERNATIONAL TRAINING COURSE

20Mr. Sung-hoon Park

Associate Expert
UNODC Vienna

Monsieur Eric Maitrepierre

Director of the International and European
Department,
Ministry of JusticeParisFranceMs. Judith B. Wish

Deputy Counsel
Office of Professional Responsibility
Department of JusticeUSAMAIN ACTIVITIESAPPENDIXOF UNAFEITHE FIFTH SEMINAR ON CRIMINAL JUSTICE FOR CENTRAL ASIA
Ms. Olga Zudova

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

THE TWELFTH INTERNATIONAL TRAINING COURSE
ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTION
Mr. Soh Kee-hean

Director
Corrupt Practices Investigation Bureau
Singapore21

ANNUAL REPORT FOR 20092009 UNAFEI PARTICIPANTS
THE 141ST INTERNATIONAL SENIOR SEMINAR
Overseas Participants

22

Mr. Joydeb Kumar Bhadra

Additional Superintendent of Police(Training)
Police Headquarters
Bangladesh

Ms. Boitumelo Makunga

Alternative Sentencing Initiative/
Wellness Centre
Attorney General’s Chambers
Botswana

Mr. Antonio Carlos Welter

Chief Prosecutor
Rio Grande do Sul Region Prosecutor’s Office
Federal Public Prosecution
BrazilMs. Fay Ingrid Clarke

Superintendent
Guyana Prison Service
Ministry of Home Affairs
GuyanaMs. Renny Ariyanny

Head of Legal Drafting Division
Legal Bureau
Attorney General’s Office
Indonesia

Mr. Sutrisno

Lecturer
Police Science College
Indonesia

Ms. Janet Juanita Davey

Regional Director
Department of Correctional Services
Jamaica

Mr. Jihad Abdelrahim H. Majali

General Attorney and Human Rights Officer
Metropolitan Regional Command
Public Security Directorate
JordanMr. Asghar Ali

Superintendent
Faisalabad Police Office
Punjab Police
Pakistan

Ms. Sylvia Vaka Reu

Senior Research Officer
Research and Development Directorate
Royal Papua New Guinea Constabulary
Papua New Guinea

MAIN ACTIVITIESAPPENDIXOF UNAFEI

Mr. Victor Manuel Esteche Mendez

Director of Legal Affairs
Legal Advisory General Department
Ministry of Justice and Labor
Paraguay

Mr. Carlos Vargas Merida

Investigative Officer
Counter Terrorism Division
Peruvian National Police
Peru

Mr. Leo Sarte Carrillo

Regional Director
Region IX
Parole and Probation Administration
Department of Justice
Philippines

Mr. Jagath Abeysirigunawardena

Deputy Inspector General
Southern Range
Sri Lanka Police
Sri Lanka

Mr. Jose Enrique Colman

Executive Coordinator
Executive Coordination Department
National Bureau of Jails, Penitentiaries andRehabilitation Centres,
Uruguay

Mr. Viet Quoc Nguyen

Legal Expert
Institute for Prosecutorial Science
Supreme People’s Prosecution OfficeVietnamJapanese Participants
Mr. Yasuhiro Date

Director
General Affairs Division
Chugoku Regional Parole Board

Mr. Katsuo Higuchi

Public Prosecutor
Tokyo District Public Prosecutors Office

Mr. Futoshi Ichikawa

Judge
Tokyo District Court

Mr. Manubu Nakajima

Senior Planning Officer for Rehabilitation Support
Mine Rehabilitation Program Center

Mr. Hiroshi Nakashima

Assistant Director
International Affairs Division
Commissioner General’s Secretariat
National Police Agency

Mr. Akihiro Nosaka

Director
General Affairs Division
Chubu Regional Parole Board

Mr. Atsushi Ogata

Public Prosecutor
Tokyo District Public Prosecutors Office
Hachioji Branch

23

ANNUAL REPORT FOR 2009

Mr. Toru Suzuki

Deputy Director
Research Department
Research and Training Institute of the Ministry ofJustice

Mr. Shigeru Takenaka

Deputy Warden
Classification Division
Kurobane Prison

THE 142ND INTERNATIONAL TRAINING COURSE
Overseas Participants24

Ms. Marialda Lima Justino Cruz

Police Chief
Civil Police of the Federal District
Brasilía
BrazilMs. Aurea Francisca Rodrigues deMoraes

Police Officer (Correctional Officer)
Material Resource Division
General Administration Department
Civil Police of the Federal District
BrazilMr. Oleskyenio Enrique Florez
RinconTeacherNational Police Academy
Colombia National Police
Colombia

Mr. Jean Claude Ngoie Mutombo

Assistant Prosecutor Deputy
Parquet de Grande Instance
Kinshasa/Gombe
Democratic Republic of the Congo

Ms. Marta Raquel Flores Ramirez

Third Officer
Guatemala Police Academy
Ministerio de Gobernacion
GuatemalaMs. Vanna Ladavia Lawrence

Director of Training
Human Resource Development
Department of Correctional Services
Jamaica

Mr. Ben Siambango Buchane

Senior Superintendent
Oluno Rehabilitation Centre
Prisons and Correctional Services
Ministry of Safety and Security
Namibia

Mr. Ritendra Thapa

Under Secretary
Special Court of Kathmandu
Supreme Court of Nepal
Nepal

Mr. Mahendra Nath Upadhyaya

Under Secretary (Registrar)
Parsa District Court, Birgunj
Supreme Court of Nepal
Nepal

MAIN ACTIVITIESAPPENDIXOF UNAFEIMr. Salim M.A. Qawariq

Director
Department of Social Defence
Ministry of Social Affairs
Palestine

Mr. Allen Maliki

Correctional Officer
Rove Central Prison
Correctional Services
Solomon Islands

Mr. Ricky Iomea

Principal Legal Officer, Public Prosecutor
Director of Public Prosecutions Office
Ministry of Justice and Legal Affairs
Solomon Islands

Ms. Sumithra Rahubaddhe

Additional Secretary
Ministry of Justice and Law Reform
Sri Lanka

Mr. Henele Telefoni

Probation Officer
Youth Justice and Probation Division
Ministry of JusticeTonga

Observers
Mr. Andy Che Leung Lam

Principal Officer
Rehabilitation Unit
Hei Ling Chau Addiction Treatment Centre
Hong Kong

Mr. Kyuyeon Park

Senior Inspector
Pohang Correctional Institution
Republic of Korea

Japanese Participants
Mr. Masami Goda

Probation Officer
Kobe Probation Office

Mr. Hiroyuki Hayashi

Probation Officer
Tokyo Probation Office

Mr. Kentaro Hirate

Assistant Judge
Tokyo District Court

Ms. Misae Kato

Probation Officer
Tokyo Family Court

Mr. Hiroshi Suda

Public Prosecutor
Chiba Public Prosecutors Office

Mr. Takahiro Sumikawa

Public Prosecutor
Kobe Public Prosecutors Office, Himeji Branch

Mr. Yuichiro Wakimoto

Chief Specialist
Hiroshima Juvenile Classification HomeMr. Masaya Yamamoto

Chief Treatment Supervisor
Osaka Prison

25

ANNUAL REPORT FOR 2009

THE 143RD INTERNATIONAL TRAINING COURSE
Overseas Participants
Mr. Md. Shah Abid Hossain

Additional Superintendent of Police
Police Headquarters
Bangladesh Police
Bangladesh

Mr. Kangkolongo Sylvain
MuambaPresident
Appeal Court
Democratic Republic of the Congo

Mr. Shameem Hussain

Deputy Prosecutor General
Prosecutor General’s Office
Maldives

Ms. Gereltuya Gombojav

Senior Inspection Prosecutor
Inspection Department for Special Crimes
Capital Prosecutor Office
Mongolia

Mr. Thok Prasad Shiwakoti

Joint Attorney
Administration & Criminal and Land Related Cases
Division,
Office of the Attorney General of Nepal

Mr. Bishnu Prasad Upadhyaya

Under Secretary
Legal and Judicial Reform Program
Supreme Court of Nepal
Nepal

Mr. Khalid Salim Fadhil

Officer
Investigation
Royal Oman Police
Oman

Mr. Maher Tahseen Abederaoof
Faris

Chief Prosecutor
International Crime, Anti-Corruption
Tubas City Public Prosecution Office
Palestinian National Authority

Mr. Long Ta Cuu Doan

Leader
Prosecution Office of District 4
Ho Chi Min City Procuracy
VietnamMr. Minh Van Le

Legal Expert
Department for Criminal and Administrative Legislation
Ministry of JusticeVietnamJapanese Participants
Mr. Kazuhiro Hosoya

26

Public Prosecutor
Tokyo District Public Prosecutors OfficeMAIN ACTIVITIESAPPENDIXOF UNAFEI

Mr. Manabu Imai

Senior Assistant Judge
Sapporo District Court

Mr. Yuki Mori

Public Prosecutor
Morioka District Public Prosecutors Office

Ms. Miho Otake

Public Prosecutor
Sendai District Public Prosecutors Office

Mr. Masayuki Takahashi

Senior Assistant Judge
Tokyo District Court

27

ANNUAL REPORT FOR 2009

FIFTH SEMINAR ON CRIMINAL JUSTICE FOR CENTRAL ASIA

28

Mr. Yerbol Ismailov

Judge
Collegium for Criminal Cases
Kazakhstan

Mr. Yeshimov Maralbek

Senior Prosecutor
Department of Supervision of Law-Making
General Prosecutor’s Office
Kazakhstan

Ms. Assemgul Sabyrkhanova
Zhaxylykova

Head of Division
Department of Legislation
Ministry of Justice
Kazakhstan

Ms. Maria Charabaeva

Investigator
Investigation Department
Ministry of Internal Affairs
Kyrgyzstan

Mr. Ernis Ustabaevich Chotkaraev

Judge
Oktybr Court, Bishek City
Kyrgyzstan

Ms. Damira Toktonalievna
Orozova

Judge
Pervomaiskyi District Court, Bishek City
Kyrgyzstan

Mr. Azizbek Sharipovich
Shukurbekov

Senior Prosecutor
Department of Overviewing of Criminal Procession
Kyrgyzstan

Mr. Saifulloev Zafar Dorandaevich

Chief of Department
Drug Control Agency
Tajikistan

Mr. Habibulo Saiduloevich
Vokidov

Head
Human Resources and Office
Administration Department
General Prosecutor’s Office
Tajikistan

Mr. Mansur Mahmudjanovich
Ahmedjanov

Judge
Criminal Cases
Supreme Court
Uzbekistan

Mr. Fidel Ismailovich Naberaev

Vice-Head
Investigation Department
Ministry of Internal Affairs
Uzbekistan

MAIN ACTIVITIESAPPENDIXOF UNAFEI

14TH SPECIAL SEMINAR FOR SENIOR CRIMINAL JUSTICE OFFICIALS OF
THE PEOPLE’S REPUBLIC OF CHINA
Mr. Jiang Jin-Fang

Deputy Director-General
Department of Legal Publicity
Ministry of Justice

Ms. Xue Xin-Li

Division Director
Division of the Guidance of Grass-Roots Work
Ministry of Justice

Mr. Teng Wei

Deputy Director-General
Criminal Legislating Department
Legislative Affairs Commission
Standing Committee of NPC China

Mr. Tang Wei-Ping

Director
Criminal Legislating Department
Legislative Affairs Commission
Standing Committee of NPC China

Mr. Ma Dong

Director
Criminal Division
Research Department
Supreme People’s Court of PRC

Ms. Song Ying

Chief Judge
Fourth Criminal Chamber
Supreme People’s Court of PRC

Mr. Xu Cheng-Lei

Deputy Director
Law Enforcement Division
Public Order Bureau
Ministry of Public Security

Mr. Zhang Fei-Long

Deputy Section Chief
Legal Affairs Bureau
Ministry of Public Security

Mr. Lei Xiu-Hua

Deputy Chief
Public Prosecution Division
People’s Procuratorate of Sichuan Province

Mr. Liu Xiang-Dong

Division Chief
Division of Duty-Crime Prevention
Higher People’s Procuratorate of Shaaanxi Province

Course Counsellors
Mr. Wang Jinyi

President
Central Institute for Correctional Police

Ms. Zhao Linna

Division Director
Department of Judicial Assistance and Foreign Affairs
Ministry of JusticeMs. Ge Xiangwei

Assistant Researcher
Institute of Crime Prevention
Ministry of Justice29

ANNUAL REPORT FOR 200915TH SPECIAL SEMINAR FOR SENIOR CRIMINAL JUSTICE OFFICIALS OF
THE PEOPLE’S REPUBLIC OF CHINA

30

Mr. Jiang Jing

Deputy Director-General
Department of National Judicial Examination
Ministry of Justice

Mr. Kang Yu

Deputy Director-General
Department of Judicial Assistance and Foreign
Affairs,
Ministry of Justice

Mr. Zhang Zhao-Xin

Deputy Director-General
Bureau of Re-Education through Labor
Administration,
Ministry of Justice

Mr. Liang Ran

Division Director
Bureau of Prison Administration
Ministry of Justice

Mr. Jiang Hai-Tao

Division Director
Department of National Judicial Examination
Ministry of Justice

Mr. Li Nai-Bao

Deputy Division Director
Department of Finance
Ministry of Justice

Ms. Wang Rui-Guang

Personnel Department
Ministry of Justice

Mr. Zhang Gui-Long

Deputy Director
Regulations Filing and Review Department
Legislative Affairs Commission
Standing Committee of the National People's
Congress of the PRC

Ms. Liu Zuo-Jun

Deputy Director-General
Legislation Planning Department
Legislative Affairs Commission
Standing Committee of the National People's
Congress of the PRC

Mr. Guo Li-Ran

Assistant Judge
The Third Criminal Tribunal
Supreme People's Court of the PRC

Mr. Nie Hong-Yong

Senior Judge
The Judicial Supervision Court
Supreme People's Court of the PRC

Mr. Deng Yun

Division Director
Educating and Training Division of Political
Department,
The Supreme People's Procuratorate of the PRC

MAIN ACTIVITIESAPPENDIXOF UNAFEI

Mr. Lu Jia-Yi

Director
General Office of National Prosecutors Collegeof the PRC

Mr. Yu Lin-Tao

Deputy Chief of Division
Criminal Investigation Department
Ministry of Public Security

Mr. Niu Yong

Director Clerk
Criminal Investigation Department
Forensic Science Division
Ministry of Public Security

31

ANNUAL REPORT FOR 2009

THE FOURTH COUNTRY SPECIFIC TRAINING COURSE ON
THE COMMUNITY-BASED TREATMENT OF OFFENDERS THROUGH
THE HOLISTIC APPROACH TO VOLUNTEER RESOURCEDEVELOPMENT FOR THE PHILIPPINES

32

Mr. Ismael Juanga Herradura

Administrator
Parole and Probation Administration
Department of Justice

Mr. Rodolfo Pastor Pascua

Assistant Regional Director
Special Assistant to the Administrator
Parole and Probation Administration
Department of Justice

Ms. Cecilia Gaddi Dela Cruz

Chief Administrative Officer
Parole and Probation Administration
Department of Justice

Ms. Liberty Dagomboy Fabrigas

Chief Probation and Parole Officer
Palawan Province No. 2 Parole and Probation Office
Region 4
Parole and Probation Administration
Department of Justice

Mr. Jose Alan Balbosa Santillana

Chief Probation and Parole Officer
Dapitan City Parole and Probation Office
Region 9
Parole and Probation Administration
Department of JusticeMs. Judea Pabillar Asuncion

Chief Probation and Parole Officer
Bataan City Parole and Probation Office
Region 3
Parole and Probation Administration
Department of Justice

Mr. Angelito Aviguetero Ilano

Chief Probation and Parole Officer
Manila No. 6 Parole and Probation Office
National Capital Region
Parole and Probation Administration
Department of Justice

Mr. Rene Saldon Remollo

Supervising Probation and Parole Officer
Tanjay City Parole and Probation Office
Region 7
Parole and Probation Administration
Department of Justice

Mr. Pol Vincent Quimpo Perocho

Administrative Officer V
Training Division
Parole and Probation Administration
Department of Justice

Ms. Maria Isabel Baldo Castillo

Probation and Parole Officer II
National Field Training Laboratory
Parole and Probation Administration
Department of JusticeMAIN ACTIVITIESAPPENDIXOF UNAFEI

Mr. Paul Patrick Señoren Blanco

Probation and Parole Officer I
National Field Training Laboratory
Parole and Probation Administration
Department of Justice

Mr. Edgardo Geronimo Acuña, Jr.

Probation and Parole Officer II
Bulacan No. 2 Parole and Probation Office,Region 3
Parole and Probation Administration
Department of Justice

Mr. Pedro Tagapulot Teodoro

Human Resource Management AssistantTraining Division
Parole and Probation Administration
Department of Justice

Mr. Gregorio Aguilar Pacson

VPA
President
San Pedro VPA Association
San Pedro, Laguna

33

ANNUAL REPORT FOR 2009

TWELFTH INTERNATIONAL TRAINING COURSE
ON THE CRIMINAL JUSTICE RESPONSE TO CORRUPTION
Overseas Participants

34

Mr. Mohammed Sharif Rahpo

Supervisor
Directorate of OversightHigh Office of Oversight and Anti-Corruption
Afghanistan

Ms. Denada Kociaj

Specialist, Lawyer
General Directorate of Codification
Ministry of Justice
Albania

Mr. Ruffin Ikie-Iyuya

Adviser
Ministry of Justice
Democratic Republic of the Congo

Mr. Haider Akram Abdulmohsir Al-Zaidi

Legal AssistantCommission of Integrity
Iraq

Ms. Chemen Saeed Kafa Bajalan

Public Prosecutor
Public Prosecution Directorate
Ministry of JusticeIraq

Mr. Tsend-Ayush Dorjgotov

OfficerPrevention and Public Awareness Department
Independent Authority against Corruption ofMongolia,
Mongolia

Ms. Marija Novkovic

Head
Department for Promotional and Preventive
Activities,
Directorate for Anti-Corruption Initiative
Montenegro

Mr. Man Bahadur Aryal

Under Secretary
Judicial Administration Division
Ministry of Law, Justice and Constituent
Assembly Affairs
Nepal

Mr. Surya Prasad Parajuli

Under Secretary
Secretary to the Chief JusticeSupreme Court of Nepal
Nepal

Mr. Wa’el Mahmoud Mohammed
Lafee

Chief Prosecutor
General Prosecution Ramallah
General Prosecution
Palestinian National Authority

MAIN ACTIVITIESAPPENDIXOF UNAFEIMr. Joel Noble Done

State Prosecutor
Office of the Public Prosecutor
Department of Justice and Attorney General
Papua New Guinea

Mr. Camillo Afele

Deputy Controller and Chief Auditor
Management Division
Samoa Audit Office
Samoa

Ms. KH. Iresha Subashini
Siriwardena

Assistant Director-Legal
Legal Division
Commission to Investigate Allegations of
Bribery or Corruption
Sri Lanka

Ms. Vorayanee Vudthithornnatirak

Divisional Public Prosecutor
International Affairs Department
Office of the Attorney General
Thailand

Mr. Thanh Tien Le

Officer
Administrative Department
Supreme People’s Prosecution Department
VietnamMs. Tai Thi Ta

Inspector
Inspection Department
Ministry of JusticeVietnamMr. Tareq Ahmed Abdo Al
Gumaei

Director of Budgets
Administrative Units sector of the State
Supreme National Authority for Combating
Corruption,
Yemen

Japanese Participants
Mr. Hiroki Ito

JudgeOsaka District Court

Mr. Yukio Matsui

Superintendent
Drug and National Firearms Control Division,
National Police Agency

Mr. Masayuki Miyazaki

Public Prosecutor
Saga District Public Prosecutors Office

Mr. Shintaro Uchida

Public Prosecutor
Gifu District Public Prosecutors Office

Mr. Makoto Wada

Inspector for Market SurveillanceMarket Surveillance Division, Executive Bureau,
Securities and Exchange SurveillanceCommission

Ms. Yoko Watanabe

Professor
International Co-operation Department
Research and Training Institute of the
Ministry of Justice35

ANNUAL REPORT FOR 2009

DISTRIBUTION OF PARTICIPANTS BY
PROFESSIONAL BACKGROUND AND COUNTRY(1st International Training Course/Seminar - 143 rd International Training Course/Seminar)

Afghanistan
Bangladesh

Judicial andOther Administration

Judge

7
21

9
13

PublicProsecutors
6

Bhutan4
16

Correctional Correctional Probation
ParoleOfficials
Officials
Officers(Juvenile)(Adult)5

FamilyCourt
Investigation
Officers

Child
WelfareOfficers

4

Social
WelfareOfficers

Training &Research
Officers

5

Others

Total

2

26
66

9

Brunei4

Cambodia
China

1
13

9
2

2
5

1
5

Georgia

7
10

6

1
8

12
41

3

1

73

2
6

6

4
2

2

1

1

1

Hong Kong

16

India
Indonesia

15
23

10
22

Iran

5

12

8

8

6

Iraq

6

3

3

5

5

5

2

29

27

4

3

109
2

35

8

JordanKorea
Kyrgyzstan

33

12

28

3

9

53
26

7
14

1

1
3

1

1

5

13
1

3

53

6
1

Laos

10

6

7

10

21
1

2
3

7
2

46
1

Mongolia
Myanmar

1
7

1

1
1

2
4

Nepal
Oman
Pakistan

32

13

20

10

12
1
2

32
4
39

Palestine
Philippines

2
18

9

1
24

1
39

Saudi Arabia
Singapore

5
10

18

5

Sri Lanka
TaiwanTajikistan

22
12
1

20
4

ThailandTurkey24240
1

United Arab Emirates
Uzbekistan

1

Vietnam
Yemen

14
1

5

3

7
1

1

A S I A
Algeria

329

212
4

234
2

410

201

5

1

3

7
12

3
10

3

10

16
2

21
2

20
1

1

11

39
1

17
2

18

9

12

1

1

AFRICA

27

1
1
3

2
1
3

1
6

4

1

1
1
1

1
1
3
2
2
5
3
12
1

5

3

1

3

9

1

8

38

68

3

1

1

1

4

2

2

1
7

5

6

6
136

3

1
1

1
1

17
73

1

116
21
1

1
1

174
8

1

1
1

3

8

4

5
1

4

1

47

41

35
2
27

1

3

1

1
7

7
2

2
1

1
1
1

4
1

1
1

5

1
1
1
5

1

1

2
4

3

3

4
3
13
2
7
1
5
6
8

21

95

22

1
3
1

4
1

1
20

132
7

92
5
86

1

1

42

4
14

2

2

1

1

1
12

4

99
129

33
3

1

Botswana

1

7

Malaysia
Maldives

Cameroon
Cote d'Ivoire
Democratic Republic of the Congo
Egypt
Ethiopia
GambiaGhana
GuineaKenya
LesothoLiberia
Madagascar
Malawi
Mauritius
MoroccoMozambique
Namibia
Niger
Nigeria
Seychelles
South Africa
Sudan
Swaziland
Tanzania
Tunisia
UgandaZambiaZimbabwe

36

PoliceOfficials

1

1

1
1

2

2
1

10

2

9

4

1,615
6
10
5
3
4
11
5
2
8
4
39
3
1
1
1
1
6
3
2
12
1
9
4
19
2
20
2
7
7
12
210

APPENDIX

Judicial andOther Administration

Judge

Australia

PublicProsecutors

PoliceOfficials

1

Fiji
Kiribati

6
1

Marshall Island

1

1

9

Nauru
New Zealand

1
1

1

Palau
Papua New Guinea
Samoa

10
1

Solomon Islands

3

Tonga
Vanuatu

2

1

THE PACIFIC
Antigua and Barbuda
Argentina

25

3

2

2

1

17

Social
WelfareOfficers

Training &Research
Officers

3

1

55
1
5
2
1
2

1

1

17
2

10

2

2

1

7
3

3

3

60
1

32

10
1

16

Chile
Colombia

1
3

2
4
1

1

2
1

1
2

3

1

Costa Rica

3

17
3
3

153
2

1

7

1

2
3
1

5

23

2

1
2

4
4

2

1
5

4

1

1

2
34

1
1

1

8
12

2

15

1

1

4
2

1

1

6
6

GrenadaGuatemala

1
1

1

1

1
3

GuyanaHaiti

1
1

Honduras
Jamaica
Mexico

1

49
5
8

1

2

Dominican Republic

Total

1

1
2

Others1

41

BrazilEcuadorEl Salvador

Child
WelfareOfficers

4
1

Bolivia

FamilyCourt
Investigation
Officers

1
21

Micronesia

Barbados
BelizeCorrectional Correctional Probation
ParoleOfficials
Officials
Officers(Juvenile)(Adult)1

1
3
1

Nicaragua
PanamaParaguay
Peru

8
1
2

1

3

2
1
9
8
3

1

1
1
4

Saint Christopher and Nevis
Saint Lucia
Saint Vincent

1

Trinidad and Tobago

1

U.S.A.
Uruguay
Venezuela

1

1

10

1
4
1
4

3
9
3

1

1

1
1
1

1

2

2
2
2

1
2
1

2
1

1

NORTH & SOUTH AMERICA
Albania
Bulgaria
Estonia25
1Former Yugoslav Republic of Macedonia
Hungary
Lithuania
Poland2
1

EUROPE
United Nations Office on Drugs and CrimeJ A PA N
T O TAL

4

1
21

25

3
12
92
2
1

1
3
15

1
13

3

2

1

2

1

3

10

1

115
525

177
433

280
577

5
97
759

198
3
1
1
2
1
1
1

1
1
1

8
12
25

94
362

86
127

199
289

65
70

38
44

2
55

48
102

1
70
115

10
1
1,271
3,458

37

PART TWORESOURCE MATERIAL SERIES
No. 81Work Product of the 144th International Senior Seminar“The Enhancement of Measures for Victims of Crime
at Each Stage of the Criminal Justice Process”

UNAFEI

THE
139TH
144th
INTERNATIONALINTERNATIONAL
TRAININGSENIOR SEMINAR
COURSEVISITING
EXPERTS’
PAPERSVISITING
EXPERTS’ PAPERS

THE CHALLENGES OF VICTIMOLOGY
PAST, PRESENT AND FUTURE
John P. J. Dussich*I. INTRODUCTION
A. Prologue• E very year about 1 billion persons are victimized and close to 1.6 million of those are killed
prematurely and violently.
• C lose to 1 million women and children are trafficked every year (US Department of Justice); about halfof those are between the ages of 13-18.
• B ehind each one of these numbers is a mother and a father, and likely also an aunt, a sister, a brother,perhaps even a wife, a son, and a daughter. Each victim comes with a family and friends who also
suffer greatly.
• I f we were to grieve for one or two murdered persons, we could relate to what it would be like, but
how can we imagine grieving for 1.6 million souls every year?

B. Brief Highlights (for more details see Appendix I – Key Dates):• 1
 924 – Edwin Sutherland writes the first American text on Criminology and includes a chapter on
Crime Victims; however, in subsequent editions, this chapter is dropped.
• 1937 – Beniamin Mendelsohn begins to research the offender/victim relationship in rape cases.
• 1947 – Beniamin Mendelsohn presents his concept of Victimology as a new science in Romania.
• 1957 – Margery Fry publishes her ideas about victim compensation in the London Times.
• 1 958 – Beniamin Mendelsohn publishes his ideas in an article about his new science, Victimology, inFrance.
• 1
 968 – Stephen Schafer publishes the first English language textbook on victimology in the US, The
Victim and His Criminal .
• 1973 – the First Symposium on Victimology is held in Jerusalem, Israel.
• 1976 – in the US the National Organization for Victim Assistance is launched in Fresno, California.
• 1979 – the World Society of Victimology is launched in Munster, Germany.
• 1
 985 – the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power ispassed by the General Assembly in New York.
• 2003 – the Tokiwa International Victimology Institute is opened in Mito, Japan.  

C. Victimization
The term “victimization” refers to a process whereby an external force comes in contact with a person,
rendering that person to feel pain, sometimes causing injury, either of which can be short-lived or whichmight cause extended suffering and sometimes death. That force can be legal or illegal, natural or manmade,biological or chemical, expected or unexpected, social or individual, civil or uncivil, intended or unintended;
the list of possibilities is endless.
*Director, Tokiwa International Victimology Institute, Tokiwa University, Japan.        

41RESOURCE MATERIAL SERIES No.81

Those persons who are the direct recipients of the external force are the primary victims, the ones who
suffer first, feel pain the most severely, and are usually injured the worst. Other persons who are related toor acquainted with the primary victims and are negatively affected (usually emotionally) are the secondary
victims. This group can feel an intense sense of sympathetic suffering in proportion to the severity of the
injury and the nature of their relationship to the primary victim. Both primary and secondary victims canbecome traumatized by the original victimization and consequently need some degree of psychologicaltreatment to diminish their pain and to recover.
Persons familiar with the original victimization but not related or acquainted to the primary victim,
usually neighbours or members of the same community or in the broader social audience, are tertiary
victims. They can be influenced emotionally, financially, or socially. These persons can be those who
received news of the original victimization via conversations, the news media or as witnesses to the event.
In some cases even these tertiary victims will become traumatized and will need treatment.    
The study of victimization and its victims is part of a relatively new science.   A Romanian lawyer,
Beniamin Mendelsohn, first coined the word victimology in 1947, and promoted its concept as the scienceof “victimity,” the study of all victims. He referred to his concept as “general victimology” to distinguishit from “crime victimology,” which is only concerned with crime victimization.   He also proposed theestablishment of a society of general victimology, the establishment of victimological research institutes,
victim departments in all national governments, a journal of general victimology, the creation of victim
clinics and national societies in each country. Consequently, it is understandable that Beniamin Mendelsohn
is called the “Father of Victimology.”  
All of these proposals came to fruition.  The World Society of Victimology, founded in 1979, is open to all
forms of victimization (although most of its activities focus on crime victimization). At least six victimology
institutes exist worldwide, some limited to crime victimization and others to general victimization. Many
governments have established special offices dedicated to victims of crime and concern themselveswith distributing information about victims, and monitoring a wide range of victim support activities. In
the United States, this office is the Office for Victims of Crime (OVC) located within the Department ofJustice. At least five international journals dedicated to victims actively publish works about all aspects ofvictimology. Tens of thousands of victim assistance centres function across the globe, especially in most of
the developed countries, and in many of the developing countries as well. Finally, there are about twenty
national victim societies across the globe.    
In the United States, the first official measurement tool on the extent of crime and victimization was
the Uniform Crime Report (UCR), created by the International Association of Chiefs of Police in 1927.  
Compiled by the Federal Bureau of Investigation with data submitted voluntarily by police departmentsfrom all over the United States, these statistics unfortunately mostly gave information about the offenders,focusing on eight index crimes, but had little information about victims.
Because of the growing evidence of a sizable “dark figure” of victims (those who did not report their
victimization) and the recognition that the UCR gave insufficient information about victims, a new national
survey on victims appeared in 1966.  This survey, now known as the National Crime Victimization Survey(NCVS), confirmed that actual victimization rates exceeded UCR data, roughly double the number reported
to the police.   They provided a wealth of new information about victims and victimizations which has, foralmost the past four decades, given victimologists details about victims and their behaviours never before
available.  In recent years, both surveys have become more expansive and sophisticated sources of statistics
and information about victimization.
Beyond collecting survey data about crime victims, victimologists also conduct research to measure thecause and effect relationships that surround victimizations. These studies explore such topics as victim
vulnerability, victim/offender interactions, victim impacts, victim trauma, victim blaming, victim needs,
victim recovery and many other topics that help victimologists better understand victim behaviours.  
The last general category of research used in conjunction with victims is evaluative research used
to measure the efficiency and efficacy of victim service programmes. These studies primarily focus on
victim services for such programmes as those dealing with: child abuse, sexual assault, elder abuse, victim

42

THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

advocacy, victim witnesses, spouse abuse, burglary victims, accident victims, victims of drunk drivers, etc.
The results of these studies help determine what aspects of services are valuable to keep, so as to better
reduce victim suffering and facilitate their recovery.
The main concerns of contemporary victimology are: crime victims (persons injured as a result of anillegal act), disaster victims (persons injured as a result of either natural or manmade catastrophes) and a
special category referred to as abuses of power victims (persons injured as a result of genocide, apartheid,
racketeering, inquisitions, torture, or ethnic cleansing).
The response to victimization has become a permanent part of our 21st century culture. Currently, there
are: victims’ rights in all states; service programmes that help all types of victims; victimization researchstudies which are major components of many scientific endeavours; universities that offer academic degrees
at the bachelors, masters and doctorate levels; professional victim advocates; and major parts of nationaland states’ budgets dedicated to providing assistance to a wide range of victims. Today, the concept ofvictimization, victim rights and victim assistance are familiar to most international victimologists and thesechanges have made a significant contribution to the improvement of the human condition.
The words “comparative victimology” mean the analysis of victimological sub-themes like victim
behaviours, victimizations, victim rights, and victim services, which are the same or unique in different
cultures, societies and nations. This perspective helps victimologists understand to what extent the victim
behaviours of individuals or groups are universal and common to all humans and to what extent they areby-products of different physical and social environments.

D. Victimology
Linguistically the word victimology is a combination of two parts, victim and ology . The word victim
comes from the Latin word victima which referred to a person or animal sacrificed in a religious ceremony.
The ology comes from the Greek word logos which meant speech, word, or reason and was especiallyassociated with divine wisdom, reason, doctrine, theory, and science. Today the word victimology is definedfrom the victim’s perspective as the discipline which scientifically studies, as objects of investigation, alltypes of victims, especially crime victims.2 It includes the theories and research used to explain all aspects
of victimization, victim behaviours prior to, during and after the victimization; and, the analysis of laws,
policies, psychological interventions and programmes used to help victims co-operate with government
systems and recover from their physical, psychical, social, economical, and legal injuries. Since victimology
comes from the word “victim”, logically victimology should be about victim characteristics rather than being
qualified by the many forces that cause victimization. It is the status, condition, and plight of victims thatform the essence of what victimology studies.
The very early origins of victimology can be found in somewhat unrelated writings of a few insightful
persons in: a novel about murder victims by Franz Werfel in 1920; a small chapter on victims in an American
criminology textbook by Edwin Sutherland in 1924; a Cuban book about protecting crime victims by J.
R. Figueroa, D. Tejera and F. Plá in 1929; a major chapter about victims in a criminology book by Hans
von Hentig in 1948; a sentence about the need for “a science of victimology” in a book on violence by an
American psychiatrist, Fredric Wertham, in 1948; and, a speech on victimology in Romania by Beniamin
Mendelsohn in 1958. Then came the first full book on victim restitution in the English language by a
Hungarian criminologist, Stephen Schafer, in 1960; a dissertation on victimology published as a Japanesebook by Koichi Miyazawa in 1965; and, finally, the first victimology textbook, also by Stephen Schafer, in
1968.
The conceptualization of victimology as a formal discipline was born in the mind of the Romanian defence
attorney Beniamin Mendelsohn. His interest in victims and their relationships with offenders began when
he was trying to defend persons accused of crimes. He became aware of how important it was to understandthe victim/offender interaction to determine degrees of offender blame. Eventually going beyond victim
and offender interaction, Mendelsohn recognized that victims were largely ignored, disrespected and evenabused by the system. Thus, he began to seek ways to protect and help victims by proposing the creationof victim assistance clinics, international organizations, and special research institutes. Like most of his
contemporaries, Mendelsohn’s early work with victimology was mostly about crime victims and their

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relationship with their offenders; however, as he began to develop his ideas, his focus centered more on justthe victim. This orientation reached its peak with the realization that victimology logically should be about
the concern for all types of victims, from crimes, traffic accidents, disasters, etc. He referred to this broader
type of victimology as “general victimology.”8 Today there are roughly three types of victimologists: those
whose focus is limited to crime victims (specific); those whose focus is on human rights victims (which
includes crime victims); and those who focus in on all victims regardless of the cause (general). Victimology
today is an interdisciplinary field drawing especially from law, criminology, psychology, sociology,
anthropology, and political science.

II. BASIC CONCEPTS AND THEORY OF VICTIMOLOGY
A. Basic Concepts
The essential elements of victimology include the following:• “ Victim” has its roots in the early religious notions of suffering, sacrifice and death.   This conceptof “victim” was well known in the ancient civilizations, especially in Babylonia, Palestine, Greece,
and Rome.  In each of these civilizations the law mandated that the victim should be recognized as aperson who deserved to be made whole again by the offender.
• “ Crime victim” is a person who has been physically, financially or emotionally injured and/or had theirproperty taken or damaged by someone committing a crime.
•  “Victimogenesis” refers to the origin or cause of a victimization; the constellation of variables whichcaused a victimization to occur.
• “ Victim Precipitation” a victimization where the victim causes, in part or totally, their own
victimization.
 ulnerability” is a physical, psychological, social, material or financial condition whereby a person or• V
an object has a weakness which could render them a victim if another person or persons recognizedthese weaknesses and took advantage of them.
• “ General Victim” is a person who has been physically, financially or emotionally injured and/or had
their property taken or damaged by someone, an event, an organization or a natural phenomenon.
• “ Victimization” refers to an event where persons, communities and institutions are damaged or
injured in a significant way. Those who are impacted by persons or events suffer a violation of theirrights or significant disruption to their well-being.
• “ Victimology” is an academic scientific discipline which studies data that describes phenomena andcausal relationships related to victimizations. This includes events leading to the victimization, thevictim’s experience, its aftermath and the actions taken by society in response to these victimizations.
Therefore, victimology includes the study of the precursors, vulnerabilities, events, impacts,
recoveries, and responses by people, organizations and cultures related to victimizations.
• “ Abuse of Power” is the violation of a national or international standard in the use of organized
powerful forces such that persons are injured physically, mentally, emotionally, economically, or in
their rights, as a direct and intentional result of the misapplication of these forces.
• “ Victim Assistance, Support or Services” are those activities which are applied in response to
victimizations with the intention of relieving suffering and facilitating recovery.  This includes offering
information, assessments, individual interventions, case advocacy, system advocacy, public policy andprogramme development.
• “ Victim Recovery” is the resumption of the same or better level of functionality as was enjoyed prior
to victimization. Persons who have been victimized vary in their level of mental health and wellbeing prior to their victimization. Consequently, victimization affects each person in a different way
and causes differing degrees of injury or trauma.  In their recovery it is necessary for victims to first
try to regain their previous level of functioning plus learn from their misfortune and hopefully exceed
their previous level of functionality. To be recovered suggests that a person has at least regained theirprior level of well-being and at best, has exceeded it. This state may be measured by identifying theirprevious mental condition and determining if they have at least regained that prior status using the44

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criteria of: trust in others; autonomy of self; individual initiative; competency in daily activities; selfidentity; interpersonal intimacy; control over personal situations; successful relationships; safety indaily activities; acknowledgment of memory; trauma symptoms have become manageable; self esteem
is restored; resourcefulness is achieved; and there is an improved ability to ward off potential threats.
•“ Child Abuse” is the intentional application of sexual, physical, emotional or psychological injury toa child, to include neglect at the hands of her or his parents or care-provider, within the confines of
their family or place of care.

• “ Victim Offender Mediation” (VOM) is a formal process for face-to-face meetings in the presenceof a trained mediator between a victim of a crime and the offender who committed that crime. Thisis also called victim-offender dialogue, victim-offender conferencing, victim-offender reconciliation,or restorative justice. Often the victim and the offender are joined by their respective families andcommunity members or other persons related to the crime event. In these meetings, the offender andthe victim talk to each other about the victimization, the effects it had on their lives, and their feelings
about it. The aim is to create a mutually agreeable plan to repair any damage or injury that occurred asa result of the crime in the hopes of permanently eliminating the conflict that caused the crime in thefirst place.
• “ Restorative Justice” is a systematic formal legal response to crime victimization that emphasizes
healing the injuries that resulted from the crime and affected the victims, offenders and communities.
This process is a departure from the traditional retributive form of dealing with criminals and victims
which traditionally have generally perpetuated the conflict which resulted in the original crime.
• “ Victim Trauma” includes emotional and physical experiences that produce pain and injuries.
Emotional injury is a normal response to an extremely abnormal event. It results from the pairing ofa painful or frightening emotional experience with a specific memory which emerges and has a longlasting effect on the life of a person. The more direct the exposure to the traumatic event, the higher
the risk for emotional harm and prolonged effects.
• “ Crisis Intervention” is the provision of emergency psychological care to traumatized victims so as tohelp them return to an adaptive level of functioning and to prevent or mitigate the negative impact of
psychological and emotional trauma.
• “ Compensation” is a formal administrative procedure provided by law which provides only money tovictims for “out of pocket” real expenses directly resulting from the victimization, to be paid by thestate after the victim is found to qualify according to specific criteria determined by the respective
state or federal law.
• “ Restitution” is a formal judicial procedure used by a judge after guilt is determined as part of asentence which can provide money and/or services to the victim for damages or suffering which
resulted from the victimization to be paid or performed by the offender.
• “ Victim Survey” is a periodic data collection and analysis process conducted usually by a government
entity within the general population to study information about crime victims regardless of whether
they reported their victimization to the police or not. It typically uses a face-to-face or telephoneinterview (or sent questionnaire) and covers demographics, attitudes about crime and details about
the victimizations experienced over the previous six months.
• “ Victim Rights” are privileges and procedures required by written law which guarantee victims
specific considerations and treatments by the criminal justice system, the government and thecommunity at large.

B. Theory
Usually, a theory is a statement that explains a given phenomena based on causal relationships. In thiscase, what is needed is a statement that explains how and why victimizations occur.
1. Beniamin Mendelsohn  
The first person to begin the development of theoretical writings about victimology was the Romanian
defence attorney Beniamin Mendelsohn, who needed to understand victims to improve his ability to
defend offenders. To do this, in 1956 he created a short taxonomy of six categories that centered on the45

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relative guilt of victims. These categories were designed to facilitate the degree to which a victim shared
the responsibility for a crime with the offender; however, they do not explain the causes of victimization.
Mendelsohn was intrigued with the relationship between the offender and the victim. He referred to thisrelationship phenomenon as the penal couple.
1. The completely innocent victim.
2. The victim with minor guilt.
3. The victim who is as guilty as the offender.
4. The victim who is more guilty than the offender.
5. The most guilty victim.
6. The imaginary victim.
2. Hans von Hentig
With the publication of his book, The Criminal and His Victim , von Hentig created a taxonomy that
described how victims were responsible for their harms. His schema was based on psychological, social andbiological factors. He was also interested in relationship between offender and victim, in what he called thecriminal-victim dyad. In 1948, he developed three broad categorizations of victims.
1. General: age, gender, vulnerabilities.
2. Psychological: depressed, acquisitive, loneliness.
3. Activating: victim turned offender.
Ultimately, Von Hentig, expanded his categories to 13:
1. The Young
2. The Female
3. The Old
4. The Mentally Defective and Deranged
5. The Immigrants
6. The Minorities
7. The Dull Normals
8. The Depressed
9. The Acquisitive
10. Wanton
11. The Lonesome and the Heartbroken
12. The Tormentor
13. The Blocked, Exempted, or Fighting
3. Stephen Schafer
Extending the work of von Hentig, Stephen Schafer used an ironic change of titles with his book, The
Victim and His Criminal . He was also focused on the offender victim interaction and developed a taxonomy
based on the victim’s functional responsibility for the crime:
1. Unrelated Victims (no victim responsibility)
2. Provocative Victims (victim shares responsibility)
3. Precipitative Victims (some degree of victim responsibility)
4. Biologically Weak Victims (no victim responsibility)
5. Socially Weak Victims (no victim responsibility)
6. Self-Victimizing (total victim responsibility)
7. Political Victim (no victim responsibility)
These three pioneer victimologists, strangely enough, were not focused on the injury caused to thevictim by the offender. Their main concern was with the victim’s role in contributing to the crime and in the
co-operation of the victim with the criminal justice system. Mendelsohn, in 1976, proposed a different viewof victims with his concept of general victimology which considered the source of the victimization. Basedon this notion, he listed five types of victimizers:

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1. A criminal
2. One’s self
3. The social environment
4. Technology
5. The natural environment
6. Most crime victimologists are also criminologists.
4. Dietrich L. Smith and Kurt Weis
In 1976, Dietrich L. Smith and Kurt Weis created a rudimentary model of the General Victimology
perspective which considered the university of situations, events and processes that likely lead to
victimization.
1. The study of the creation of definitions of victims by legal processes, everyday processes and scientificprocesses.
2. The study of applications of the above definitions by control agents, significant others, community,
behavioural and social scientists, and the victim him or herself.
3. The study of societal response systems with victims such as crisis intervention, social services, police,
prevention, medical services and civil courts.
4. The study of the victim’s reaction in the post-victimization behaviour such as seeking help, complaints,
and reactions to the response of others.
5. John Dussich
The most recent attempt to create a unified comprehensive theory of victimization within the scope ofgeneral victimology was created by John Dussich in 1985 with the presentation of his Social Copy Theory.
This has recently (2004) been revised to the Psycho Social Coping Theory. The essential ingredients ofthis model are to consider the existence of personal resources in the victim’s environment that exist at thetime of the victimization. Persons who have an adequate number or type of resources are able to thwart
their victimization; if the victimization is not thwarted, the injury can be diminished, and the victim is able
to recover sooner. Those with fewer personal resources in their environment will be more vulnerable tovictimization, greater injury, and less recovery. The unique aspect of this theory is that it serves to both
explain victimizations for all sources and it is useful to assist victims in their recovery process.

III. GATHERING DATA ON VICTIMIZATION AND KEY FINDINGS
A. Questions
Victimologists want basic questions answered to get a larger scope of the problem. They want to know
where and when the majority of crimes occur; what are the weapons used by offenders; the nature of thevictim/offender relationships; how victims react; do they fight back or try to escape; are they hospitalized;
and how much loss do they experience in terms of time and money.
B. The Use and Abuse of Statistics
Statistics are meaningful numbers that reveal important information.
Criminologists and victimologists can either gather their own data and make calculations or use official
statistics (compiled and published by government agencies).
C. What can We get from Statistics?
• Realistic assessments;• Counts (such as body counts) and rates (per 100,000 people per year);• Trends: revealing how situations change as time goes on;• Costs and losses;• Project a rough or “ballpark” figure;• Information to evaluate the effectiveness of recovery efforts and prevention strategies;• Profiles of what is usual or typical about the average victim.
D. Two Official Sources of Data in the USA
The FBI’s Uniform Crime Report : Crime in the United States (UCR) is based on reports of eight major
and 23 lesser crimes, most of which do not have victims, made to the police and then sent to the FBI.

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The BJS’s National Crime Victimization Survey : Criminal Victimizations in the United States is based on
biannual data collection. The first victim related survey was in 1966. This gave proof of the “Dark Figure” ofcrime, and undercut confidence in the accuracy of the UCR for all offences except murder.   

E. The International Crime Victim Survey
In 1989 a group of European researchers started a standardized survey on crime which covered 16
countries and one city. This led to the further development of a more refined survey for developing
countries and was primarily led by the United Nations Interregional Crime and Justice Research Institute(UNICRI) in Turin, Italy. This work has recently included the involvement of the United Nations Office on
Drugs and Crime (UNODC) and has served to expand knowledge on victims throughout the world.
F. Key Findings
1. International Crime Victim Surveys (ICVS)
On average, an estimated 16% of the population in the 30 nations participating in the country level
surveys was the victim of at least one of any of ten common crimes in 2003 or 2004. On average, 1% of
the population was victimized by robbery in the participating countries and 2.4% in the main cities. A
comparison was made between the level of victimization by crime according to the ICVS and the numbersof police-recorded crimes taken from the European Sourcebook on Crime Statistics. Compared to the police
data, crime victim surveys seem a better source of information on levels of crime across countries. The
reporting rates vary from almost 100% for car thefts and thefts which focused on the reporting of five typesof crime: theft from cars; theft of bicycles; theft of personal property; completed burglary; and attemptedburglary; on average, one in four of these crimes are reported. The highest reporting rates (about 60% ormore) can be found in Austria, Belgium, Sweden, Switzerland, Germany, England & Wales, Scotland andDenmark. In Istanbul, Bulgaria and Hong Kong reporting rates are less than 40%. The developing countries
show the lowest reporting rates for these five crimes. In half of them less than 20% of such crimes arereported.
About half of the victims who reported a crime were satisfied with the way the police treated their case,varying from over 70% in Denmark, Switzerland, Finland, Australia, Scotland and New Zealand to less than
30% in Estonia, Lima, Maputo, Greece, and Mexico.
2. National Victim Surveys from the USA
Teens and young adults experience the highest rates of violent crime. Considering fear of crime,
respondents were asked how likely they think it is that a burglary will take place in their house in the
coming year. Levels of concern were correlated to actual burglary rates. Concern is most common among
the public in Japan, Greece and Italy, and least common in Finland, Denmark, USA, Sweden and theNetherlands. Persons in older age groups experienced lower violent victimization than persons in younger
age groups.
Nearly half of all violent crimes and 40% of all property crimes were reported to police in 2008. Of theviolent offences measured by the NCVS, robbery (61%) and aggravated assault (62%) were more likely thanrape/sexual assault and simple assault (each 41%) to be reported to the police (text table 4). Of the property
crimes measured, motor vehicle theft (80%) was the crime most frequently reported to the police in 2008.
Violent crimes against females were somewhat more likely to be reported to the police in 2008 thanviolent crimes against males. Violent crimes against black females were reported to a greater extent thanthose against white females or against males of any race, and to a slightly greater extent than those against
females of other races.
3. Police Reports
The USA’s FBI’s Uniform Crime Reports show that in 2006, 87% of murder victims were aged 18 orolder. Of all murder victims, 44% were 20 to 34 years old. The elderly, persons age 65 or older, generally
experienced less violence and fewer property crimes than younger persons. Serious violent crime rates
declined in recent years for both blacks and whites. In 2006 about 50% of murder victims were black,
47% were white, and 3% were Asians, Pacific Islanders, and Native Americans. Blacks were more likely
than whites to be victimized by a carjacking (3 versus 1 per 10,000 respectively) from 1993-2002. Males
experienced higher victimization rates than females for all types of violent crime except rape/sexual assault.

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According to the FBI's Uniform Crime Reports, most murder victims were male: 78% in 2007. Men
were more likely than women to be the victim of a carjacking (2 men and 1 woman per 10,000 persons).
In general, violent victimization rates were inversely related to household income; persons living inhouseholds with lower incomes generally had higher rates of violent crime.
In 2006 divorced or separated persons experienced somewhat higher rates of overall violence thanpersons of other marital status categories. When compared with other age groups, persons aged 65 or older
were disproportionately affected by property crimes.
The property crime rate for Hispanics was 187 per 1,000 households, and for non-Hispanics was 128
per 1,000 households. Hispanic households had a motor vehicle theft rate of 12 per 1,000 compared to 6 per
1,000 for non-Hispanic households.

IV. THE VICTIM IN THE CRIMINAL JUSTICE SYSTEM
A. The Criminal Justice System
The criminal justice process is initiated by the action of victims and witnesses in reporting crimes.
Without a reported crime the criminal justice system could not begin and would not function. Victims andwitnesses also play critical roles in the police investigations and in the prosecution process through theirco-operation with the agents of the system. In fact the ideal relationship between the victims and the systemis critical in assuring the achievement of justice, for victims, offenders, the system and the community atlarge.
B. The Work of Victimologists
Victimologists explore how the CJS handles victims; how the police respond to complainants; how thepolice help victims report crimes; how prosecutors, defence attorneys and judges treat witnesses for thestate; and how corrections, probation, and parole officials react to special requests from victims. It is criticalto understand exactly what victims want and expect:
1. Punishment of the offender - punishment is what comes first to most people’s minds when considering
what justice entails;
2. Retaliation, lex talionis - an eye for an eye;   
3. Treatment and rehabilitation of the offender - victims are more likely to endorse offenders’ treatment if
they are not complete strangers;  
4. Restitution – rather than retaliation or rehabilitation, for victims and from offenders – money, service
or a symbolic gesture.

C. Unacceptable Responses
Victims do not want inaction, lack of interest, neglect, abuse, disrespect, empty promises, or attempts atmanipulation.
D. Conflict
Two areas of conflict can arise between victims and the police when officers unwittingly make them feelworse and cause a second wound:
1. Law enforcement officials might seem remote, uninvolved, or unconcerned;
2. Police may conclude that the complainants’ charges lack credibility.

V. THE UN DECLARATION OF BASIC PRINCIPLES OF JUSTICE FOR VICTIMS OF CRIME
AND ABUSE OF POWER AND THE DRAFT UN CONVENTION
A. The Declaration
The United Nations General Assembly unanimously passed the Declaration of Basic Principles of Justicefor Victims of Crime and Abuse of Power in 1985 (25 years ago). This was the first legal instrument to be
totally dedicated to victims of crime and abuse of power! It was a rallying cry heard around the world. Its
promise and impact was so great that it is known as “Magna Carta for Victims’ Rights”.  This Declaration

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has been the primary reference document for victim reforms and was the theme of the 2005 UNAFEI courseon victims. The early promoters and supporters of this dramatic initiative were mainly the World Societyof Victimology; the United States of America, Finland, Canada and the Netherlands. This declaration forvictims has ten essential principles for victims (see Appendix II):
1. To be treated with compassion and respect ;2. To receive information about the progress of their proceedings and their role ;3. To allow their concerns to be presented and considered ;4. To provide support for all victims during the entire legal process;5. To minimize inconvenience , maintain privacy and ensure safety ;6. To also use informal ways for mediation, dispute resolution, arbitration, and customary or indigenous
justice;
7. To receive material, medical, social and psychological assistance ;8. To always have restitution from the offender considered;
9. To also have compensation from the state available; and,10. To expect partnerships with government agencies, NGOs and civil organizations.

B. The Draft Convention
The United Nations draft Convention on Justice and Support for Victims of Crime and Abuse of Power
is a new initiative by the World Society of Victimology to recognize that over the past 25 years, the UN
Declaration for victims has provided governments and organizations with a constant source of informationand guidance concerning victims of crime and abuse of power. Some countries have adopted the Declaration.
However, and sadly for victims, many others have not. This means that many, many victims are ignored.
To honour the noble intents of that same Declaration, so that all victims can be helped, and to renew ourefforts on behalf of these forgotten victims (who, for the most part, still remain silent and unseen), and, tostrengthen the resolve of our community of nations, it is time to expand the global standards for victims.
This effort must go beyond just recommending principles, and instead must require real reforms to takeplace. The next logical step up is a UN Convention , which could make the same noble principles a living
reality so that all governments would treat all victims with “compassion and respect” (see Appendix III).
The text of this proposal has a Preamble and 25 articles divided into four parts. The Preamble recalls the UN
General Assembly declaration of 1985 which called upon Member States, “to take the necessary steps togive effect to the provisions contained in the Declaration of Basic Principles of Justice for Victims of Crime
and Abuse of Power”.
VI. FUTURE PROPSPECTS OF VICTIMOLOGY
The scientific study of victims, victimology, will continue to evolve in numerous directions. The researchused to collect and analyse information about victims will become more sophisticated, more reliable andmore available in support of keener understandings about victims. Theories based entirely on victim
behaviour and empirical findings will emerge and help explain the complexities of why people are victimized,
how and why they are differentially impacted and also help to identify what types of treatments are mosteffective in facilitating victim recovery. In partnership with theory, the multitude of practices used toprevent, protect and treat victims will prove the wisdom of evidence-based decisions such that all responses
to victims will be first tested prior to being used. This will lead to universal standards of professional
conduct supported by legal controls and strict educational requirements. Ultimately, policy will shift awayfrom unsubstantiated opinions and move toward rational processes that will produce safer societies, result in
more efficient responses and help victims recover sooner.

VII. RECOMMENDATIONS FOR CRIMINAL JUSTICE OFFICIALS
A. Toward More Formal Victim Rights for Victims within the CJS
1. Five Basic Rights
1. To be handled with fairness, respect, and dignity;
2. To be notified, heard, or be present for important judicial proceedings;

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3. Promptly get stolen property returned;
4. To be protected from intimidation and harassment;
5. To receive restitution and/or compensation.
2. Compensation
1. To be reimbursed for out-of-pocket expenses for medial bills and lost wages arising from injuries
inflicted during a violent crime.
3. Victim Influence
Two forms in which victims can influence the outcome of sentencing decisions:
1. Victim impact statements;
2. Allocution.  
4. Restorative Justice (Conciliation; Mediation; and Arbitration)
1. Empowerment;
2. Notification;
3. Direct involvement;
4. Offender accountability;
5. Receiving restitution;
6. Informal justice (retaliatory justice).
5. Summary
In sum: In the 21st century victims will pursue three different courses:
1. Seek to exercise their recently granted rights;
2. Explore the possibilities that are opening up in a new approach;
3. Retaliatory violence.

B. Police
Toward a victim-oriented police department. A victim-oriented department would undertake outreachefforts to:• H andle the victims with care;• B uild confidence of citizens;• P rovide sensitive and timely death notifications;• M eet the special needs for all victimized children and women, rape victims, disabled persons andelder victims;• Dispatch officers quickly to the scene of a crime;• Recover stolen property and return it to the rightful owner as soon as possible.
C. Prosecutors
Toward a victim-oriented prosecution• O ffer protection and safety to all victims and witnesses and their families;• E stablish victim witness programmes to render assistance;• A
 t all times victims will be treated with dignity and respect, especially during trials and hearings;• K eep the victim informed about decisions in their cases from the initial charging to the determinationof parole and involve victims in all hearings, especially victims of violent crimes;• P ermit all victims allocution;• C harge and pursue conviction of defendants who harass, threaten, injure, or attempt to intimidate orretaliate against victims or witnesses.
D. The Future of the International Crime Victim Surveys
Repeats of the ICVS in 2007 and 2008 are under preparation in several countries. It is hoped thatplans made in the framework of the European Union for a standardized EU crime survey will allow for acontinuation of the ICVS-based series by using elements of the ICVS methodology, including its core set ofquestions.

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APPENDIX I
A. Key Dates in Victimology• 1 924: Edwin Sutherlands’ Chapter III, “The Victims of Crime” appeared in his first   Criminology
textbook.
• 1
 937: Beniamin Mendelsohn wrote about the personality of victims and lectured in Romania and in
the Belgium journal Revue de Droit Penal et de Criminologie , Bruxelles.
• 1
 940: Beniamin Mendesohn published his first work, “Rape in criminology ” in the Italian journal,
Giustizia Penale , Rome.
• 1
 946: Beniamin Mendelsohn circulated his work “New bio-psycho-social horizons: victimology”,
among medico-legal experts in Bucharest, Romania.
• 1 947: Beniamin Mendelsohn gave his famous speech at the Colzea State Hospital in Bucharest,
Romania about his new science, “Victimology.”• 1948: Hans von Hentig, The Criminal and his Victim . Yale University Press.
• 1957: Margery Fry published an article in the London Times on Victim Compensation.
• 1
 958: Beniamin Mendelsohn published his major explanation “La Victimologie ” in the French journal
Revue Francaise de Psychanalyse . January-February.
• 1963: New Zealand passed the world’s first Victim Compensation Law.
• 1965: California was the first US state to pass a Victim Compensation Law.
• 1966: The US government conducted its first crime victimization survey.
• 1968:  Stephen Schafer published the first victimology book, The Victim and His Criminal .
• 1972: The first three victim assistance programmes were created:
(i) Aid for Victims of Crime in St. Louis, Missouri;
(ii) Bay Area Women Against Rape in Berkeley, California;
(iii) Rape Crisis Center in Washington, D.C.
• 1
 973: First International Symposium on Victimology was hosted by Israel Drapkin, in Jerusalem,
Israel.
• 1974:
 T he Federal Law Enforcement Assistance Administration (LEAA) funds the first victim-witness
programmes in the Brooklyn and Milwaukee District Attorneys' offices, plus seven others througha grant to the National District Attorneys Association, to “create model programmes of assistancefor victims, encourage victim co-operation, and improve prosecution”.
 T
 he first law enforcement-based victim advocate programmes are established in Fort Lauderdale,
Florida, and Indianapolis, Indiana.
 T he U.S. Congress passes the Child Abuse Prevention and Treatment Act which establishes the
National Center on Child Abuse and Neglect (NCCAN). The new Center creates an information
clearinghouse and provides technical assistance and model programmes.
 T he first national meeting of victim assistance persons met in Ft. Lauderdale, Florida withsupport from LEAA at the initiative of and co-ordinated by John Dussich.
• 1975: The first "Victims' Rights Week" is organized by the Philadelphia District Attorney.
 I nternational Study Institute on Victimology held in Bel1agio, Italy, co-ordinated by Emilio Vianoand attended by many of the pioneers in victimology of that time.

52THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS• 1976:
 A
 ctivists from across the USA united to expand victim services and increase recognition of
victims’ rights at the 2nd National Conference on Victim Assistance in Fresno, Ca1ifornia and onthat occasion John Dussich created and co-ordinated the formation of the National Organization forVictim Assistance (NOVA).
 T
 he National Organization for Women forms a task force to examine the problem of battering. It
demands research into the problem, along with money for battered women’s shelters.
 Nebraska becomes the first state to abolish the marital rape exemption.
 T he first national conference on battered women is sponsored by the Milwaukee Task Force on
Women in Milwaukee, Wisconsin.
 I n Fresno County, California, Chief Probation Officer James Rowland creates the first victim
impact statement to provide the judiciary with an objective inventory of victim injuries and losses
prior to sentencing.
 S econd International Symposium on Victimology held in Boston, Massachusetts organized by
Stephen Schafer.
 Women’s advocates in St. Paul, Minnesota start the first hotline for battered women.
 W omen’s Advocates and Haven House in Pasadena, California establish the first shelters forbattered women.
 First scholarly journal published by Emilio Vianno, Victimology: An International Journal .
• 1977: Oregon becomes the first state to enact mandatory arrest in domestic violence cases.
• 1978:
National Coalition Against Sexual Assault (NCASA) is formed to combat sexual violence and The
promote services for rape victims.
 T he National Coalition Against Domestic Violence (NCADV) is organized as a voice for thebattered women’s movement on a national level.  NCADV initiates the introduction of the Family
Violence Prevention and Services Act in the U.S. Congress.
 P
 arents of the Murdered Children (POMC), a self-help support group, is founded in Cincinnati,Ohio.
 innesota becomes the first state to allow probable cause (warrentless) arrest in cases of M
domestic assault, regardless of whether a protection order had been issued.
• 1979: hird International Symposium on Victimology in Munster, Germany. At this event the World T
Society of Victimology was established with Hans Schneider as its president and John Dussich as
its Secretary General.
 F rank G. Carrington, considered by many to be “the father of the victims’ rights movement”,
founds the Crime Victims’ Legal Advocacy Institute, Inc., to promote the rights of crime victims
in the civil and criminal justice systems.   The nonprofit organization was named VALOR, theVictims’ Assistance Legal Organization, Inc., in 1981.
 T
 he Office on Domestic Violence is established in the U.S. Department of Health and Human
Services, but is later closed in 1981.
 T
 he U.S. Congress fails to enact the Federal Law Enforcement Assistance Administration (LBAA)
and federal funding for victims’ programmes is phased out. Many grassroots and “system-based”
programmes close.
• 1980: others Against Drunk Driving (MADD) is founded after the death of thirteen-year-old Cari
 M
Lightner, who was killed by a repeat offender drunk driver. The first two MADD chapters are

53

RESOURCE MATERIAL SERIES No.81

created in Sacramento, California and Annapolis, Maryland.
 The U.S. Congress passes the Parental Kidnapping Prevention Act of 1980.  
 Wisconsin passes the first “Crime Victims’ Bill of Rights”.
 T he first National Day of Unity in October is established by NCADV to mourn battered women
who have died; celebrate women who have survived such violence; and honour all who haveworked to defeat domestic violence.  This day becomes Domestic Violence Awareness Week and,in 1987, expands to a month of awareness activities each October.
 N
 CADV holds its first national conference on Washington D.C., which gains federal recognition ofcritical issues facing battered women, and sees the birth of several state coalitions.
 T he first Victim Impact Panel is sponsored by Remove Intoxicated Drivers (RID) in Oswego
County, New York.
• 1981: Ronald Reagan becomes the first President to proclaim “Crime Victims’ Rights Week” in April.
 T he disappearance and murder of Adam Walsh prompts a national campaign to raise publicawareness about child abduction and enact laws to better protect children.
 T he Attorney General’s Task Force on Violent Crime recommends that a separate Task Force becreated to consider victims’ issues.
• 1982:
 I n a Rose Garden ceremony, President Reagan appoints the Task Force on Victims of Crime,
which holds public hearings in six cities across the nation to create a greatly needed national
focus on the needs of crime victims. The Task Force Final Report offers 68 recommendations that
become the framework for the advancement of new programmes and policies.
 T he Federal Victim and Witness Protection Act of 1982 brings “fair treatment standards” tovictims and witnesses in the federal criminal justice system.
 C alifornia voters overwhelmingly pass Proposition 8, which guarantees restitution and otherstatutory reforms to crime victims.
 T he passage of the Missing Children's Act of 1982 helps parents guarantee that identifying
information of then-missing children is promptly entered into the FBI National Crime Information
Center (NCIC) computer system.
 T he first Victim Impact Panel sponsored by MADD, which educates drunk drivers about thedevastating impact of their criminal acts, is organized in Rutland, Massachusetts.
• 1983: he first victim advocate certificate programme is launched by John Dussich at CSU Fresno, Toffering standardized victim assistance training for practitioners.
 T he U.S. Attorney General establishes a Task Force on Family Violence, which holds six public
hearings across the United States.
 The U.S. Attorney General issues guidelines for federal victim and witness assistance.
 In April, President Reagan honours crime victims in a White House Rose Garden ceremony.
 T he First National Conference of the Judiciary on Victims of Crime is held at the National Judicial
College in Reno, Nevada.
 P
 resident Reagan proclaims the first National Missing Children's Day in observance of thedisappearance of missing child Etan Patz.
 T
 he International Association of Chiefs of Police Board of Governors adopts a Crime Victims’ Billof Rights and establishes a victims’ rights committee to bring about renewed emphasis on theneeds of crime victims by law enforcement officials nationwide.

54

THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS• 1984:
 he Office for Victims of Crime (OVC) is created by the U.S. Department of Justice within the T
Office of Justice Programs to implement recommendations from the President's Task Force on
Victims of Crime.
 T he passage of the Victims Of Crime Act (VOCA) establishes the Crime Victims’ Fund, made up
of federal criminal fines, penalties and bond forfeitures, to support state victim compensation andlocal victim service programmes.
 P
 resident Reagan signs the Justice Assistance Act, which establishes a financial assistanceprogramme for state and local government and funds 200 new victim service programmes.
 T he National Minimum Drinking Age Act of 1984 is enacted, providing strong incentives to states
without “21” laws to raise the minimum age for drinking, saving thousands of young lives in years
to come.
 T he National Center for Missing and Exploited Children (NCMEC) is created as the national
resource for missing children. Passage of the Missing Children's Assistance Act provides a
Congressional mandate for the Center.
 T he Spiritual Dimension in Victim Services is founded to involve the religious community inviolence prevention and victim assistance.
 T he U.S. Congress passes the Family Violence Prevention and Services Act, which earmarks
federal funding for programmes serving victims of domestic violence.
 C oncerns of Police Survivors (COPS) is organized at the first police survivors’ seminar held in
Washington. D.C. by 100 relatives of officers killed in the line of duty.
 T he first National Symposium on Sexual Assault is co-sponsored by the Office of Justice Programsand the Federal Bureau of Investigation.
 A victim-witness notification system is established within the Federal Bureau of Prisons.
 The Office for Victims of Crime hosts the first national symposium on child molestation.
 V
 ictim-Witness Coordinator positions are established in the U.S. Attorneys’ offices within the U.S.
Department of Justice.
 C alifornia State University, Fresno, initiates the first Victim Services Certificate Program offered
for academic credit by a university.
 R emove Intoxicated Drivers (RID) calls for a comprehensive Sane National Alcohol Policy (SNAP)
to curb aggressive promotions aimed at youth.
• 1985: The Federal Crime Victims’ Fund deposits total $68 million.
 T he National Victim Center is founded in honour of Sunny von Bulow to promote the rights andneeds of crime victims, and to educate Americans about the devastating effect of crime on theirsociety.
 9 November: The United Nations General Assemb1y passes The Declaration of Basic Principles
 2of Justice for Victims of Crime and Abuse of Power.
 P resident Reagan announces a Child Safety Partnership with 26 members. Its mission isto enhance private sector efforts to promote child safety, to clarify information about childvictimization, and to increase public awareness of child abuse.
 T he U.S. Surgeon General issues a report identifying domestic violence as a major public healthproblem.
• 1986: he Office for Victims of Crime awards the first grants to support state victim compensation and Tassistance programmes.

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RESOURCE MATERIAL SERIES No.81

 R
 hode Island passes a constitutional amendment granting victims the right to restitution, to
submit victim impact statements, and to be treated with dignity and respect.
 M
 ADD’s “Red Ribbon Campaign” enlists motorists to display a red ribbon on their automobiles,
pledging to drive safe and sober during the November-December holiday period. This national
public awareness effort has since become an annual campaign.
• 1987:
 he Victims’ Constitutional Amendment Network (VCAN) and Steering Committee is formed at a Tmeeting hosted by the National Victim Center.
 S ecurity on Campus, Inc. (SOC) is established by Howard and Connie Clery, following the tragicrobbery, rape, and murder of their daughter Jeanne at Lehigh University in Pennsylvania. SOC
raises national awareness about the hidden epidemic of violence on America's campuses.
 The American Correctional Association establishes a Task Force on Victims of Crime.
 NCADV establishes the first national toll-free domestic violence hotline.
• 1988: he National Aging Resource Center on Elder Abuse (NARCEA) is established in a co-operative
 T
agreement among the American Public Welfare Association, the National Association of State
Units on Aging, and the University of Delaware. Renamed the National Center on Elder Abuse, it
continues to provide information and statistics.
	State v . Ciskie is the first case to allow the use of expert testimony to explain the behaviour andmental state of an adult rape victim. The testimony is used to show why a victim of repeatedphysical and sexual assaults by her intimate partner would not immediately call the police or takeaction. The jury convicts the defendant on four counts of rape.
 T he Federal Drunk Driving Prevention Act is passed, and states raise the minimum drinking age
to 21.
 C
 onstitutional amendments are introduced in Arizona, California, Connecticut, Delaware,Michigan, South Carolina and Washington. Florida's amendment is placed on the November ballot
where it passes with 90 percent of the vote. Michigan's constitutional amendment passes withover 80 percent of the vote.
 T he first “Indian Nations: Justice for Victims of Crime” conference is sponsored by the Office forVictims of Crime in Rapid City, South Dakota.
 V
 OCA amendments legislatively establish the Office for Victims of Crime, elevate the positionof Director by making Senate confirmation necessary for appointment, and induce statecompensation programmes to cover victims of homicide and drunk driving.
• 1
 989: The legislatures in Texas and Washington pass their respective constitutional amendments,
which are both ratified by voters in November.
• 1990: The Federal Crime Victims' Fund deposits total over $146 million.
 T he U.S. Congress passes the Hate Crime Statistics Act requiring the U.S. Attorney General tocollect data of incidence of certain crimes motivated by prejudice based on race, religion, sexual
orientation, or ethnicity.
 T he Student Right-to-Know and Campus Security Act, requiring institutions of higher education
to disclose murder, rape, robbery, and other crimes on campus, is signed into law by PresidentBush.
 he Child Protection Act of 1990, which features reforms to make the federal criminal justice Tsystem less traumatic for child victims and witnesses, is passed by the U.S. Congress.
 T he first National Incidence Study on Missing, Abducted, Runaway, and Throwaway Children in
America shows that over one million children fall victim to abduction annually.

56

THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS T
 he National Child Search Assistance Act requires law enforcement to enter reports of missing
children and unidentified persons in the NCIC computer.
• 1991:
 .S. Representative Ilena Ros-Lehtinen (Republican Party, Florida) files the first Congressional
 U
Joint Resolution to place victims' rights in the U.S. Constitution. The Violence Against Women
Act of 1991 is considered by the U.S. Congress.
 C alifornia State University, Fresno, approves the first Bachelors Degree Program in Victimology
in the nation.
 The Campus Sexual Assault Victims’ Bill of Rights Act is introduced in the U.S. Congress.
 T he results of the first national public opinion poll to examine citizens’ attitudes about violenceand victimization, America Speaks Out , are released by the National Victim Center during
National Crime Victims’ Rights Week.
 T he U.S. Attorney General issues new comprehensive guidelines that establish procedures forthe federal criminal justice system to respond to the needs of crime victims.
 T he first national conference that addresses crime victims’ rights and needs in corrections issponsored by the Office for Victims of Crime in California.
 The first International Conference on Campus Sexual Assault is held in Orlando, Florida.
 T he American Probation and Parole Association (APPA) establishes a Victim Issues Committee to
examine victims’ issues and concerns related to community corrections.
 T he International Parental Child Kidnapping Act makes the act of unlawfully removing a childoutside the United States a federal felony.
 T he Spiritual Dimension in Victim Services facilitates a conference of leaders of thirteen religious
denominations to plan ways in which these large religious bodies can increase awareness of crime
victims' needs and provide appropriate services.
 T he New Jersey legislature passes a victims’ rights constitutional amendment, which is ratified by
voters in November.
 C olorado legislators introduce a constitutional amendment on the first day of National Crime
Victims’ Rights Week. Fifteen years later, the bill is unanimously passed by both Houses to beplaced on the ballot in 1992.
 I n an 8-0 decision, the U.S. Supreme Court ruled in Simon & Schuster v . New York Crime Victims
Board that New York’s notoriety-for-profit statute was overly broad and, in the final analysis,
unconstitutional.
• 1992:
	Rape in America : A Report to the Nation clarifies the scope and devastating effect of rape in
America, inducting the fact that 683,000 women are raped annually in the United States.
 T he Association of Paroling Authorities, International establishes a Victim Issues Committee to
examine victims’ needs, rights, and services in parole processes.
 T he U.S. Congress reauthorizes the Higher Education Bill which includes the Campus Sexual
Assault Victims’ Bill of Rights.
 T he Battered Women's Testimony Act, which urges states to accept expert testimony in criminalcases involving battered women, is passed by Congress and signed into law by President Bush.
 I n a unanimous decision, the U.S. Supreme Court-in R .A .V . vs . City of St . Paul struck down a local
hate crimes ordinance in Minnesota.
 F
 ive states: Colorado, Kansas, Illinois, Missouri, and New Mexico, ratify constitutional
amendments for victims’ rights.
 Twenty-eight states pass anti-stalking legislation.

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RESOURCE MATERIAL SERIES No.81

 M
 assachusetts passes a landmark bill creating a statewide computerized domestic violence
registry and requires judges to check the registry when handling such cases.
• 1993:
 isconsin ratifies its constitutional amendment for victims’ rights, bringing the total number of W
states with these amendments to 14.
 President Clinton signs the “Brady Bill” requiring a waiting period for the purchase of handguns.
 C ongress passes the Child Sexual Abuse Registry Act establishing a national repository for
information on child sex offenders.
 T wenty-two states pass stalking statutes, bringing the total number of states with stalking laws to
50, plus the District of Columbia.
• 1994:
 he American Correctional Association Victims Committee publishes the landmark Report and T
Recommendations on Victims of Juvenile Crime , which offers guidelines for improving victims’rights and services when the offender is a juvenile.
 S
 ix additional states pass constitutional amendments for victims’ rights-the largest number everin a single year - bringing the total number of states with amendments to 20. States with newamendments include: Alabama, Alaska, Idaho, Maryland, Ohio, and Utah.
 P resident Clinton signs a comprehensive package of federal victims’ rights legislation as part of
the Violent Crime Control and Law Enforcement Act. The Act includes:
 T he Violence Against Women Act, which authorizes more than $1 billion in funding for
programmes to combat violence against women.
 Enhanced VOCA funding provisions.
 Establishment of a National Child Sex Offender Registry.
 Enhanced sentences for drunk drivers with child passengers.
• 1995: The Federal Crime Victims’ Fund deposits total $233,907,256.
 The Crime Victims’ Rights Act of 1995 is introduced in the U.S. Congress.
 L
 egislatures in three states, Indiana, Nebraska, and North Carolina, pass constitutional
amendments which will be placed on the ballot.
 T he National Victims’ Constitutional Amendment Network proposes the first draft of language fora federal constitutional amendment for victims’ rights.
 T he U.S. Department of Justice convenes a national conference to encourage implementation of
the Violence Against Women Act.
 T
 he first class graduates from the National Victim Assistance Academy in Washington, D.C.
Supported by the Office for Victims of Crime, the university-based Academy provides anacademically credited 45-hour curriculum on victimology, victims’ rights, and a myriad othertopics.
• 1996:
 ederal Victims’ Rights Constitutional Amendments are introduced in both houses of Congress Fwith bipartisan support.
 B oth presidential candidates and the Attorney General endorse the concept of a Victims’ Rights
Constitutional Amendment.
 T he Federal Crime Victims’ Fund reaches an historic high with deposits totalling over $500
million.

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VISITING EXPERTS’ PAPERS

 E
 ight states ratify the passage of constitutional amendments for victims’ rights, raising the total
number of state constitutional amendments to 29 nationwide.
 T he Community Notification Act, known as “Megan's Law,” provides for notifying communities ofthe location of convicted sex offenders by amendment to the national Child Sexual Abuse Registrylegislation.
 resident Clinton signs the Antiterrorism Act, providing one million dollars in funding to P
strengthen antiterrorism efforts, making restitution mandatory in violent crime cases, andexpanding the compensation and assistance services for victims of terrorism both at home andabroad, including victims in the military.
 T he National Domestic Violence Hotline is established to provide crisis intervention information
and referrals to victims of domestic violence and their friends and family.
 T
 o fully recognize the sovereignty of Indian Nations, the OVC for the first time provides all grants
in Indian Country directly to the tribes.
 O
 VC launches a number of international crime victim initiatives, including working to fosterworldwide implementation of a United Nations Declaration on victims’ rights and working tobetter assist Americans who are victimized abroad.
 T he American Society of Victimology is launched in Topeka, Kansas by holding its first annual
national symposium.
• 1
 999: The United Nations and the US Office for Victims of Crime publish the Guide for Policymakers
on the Implementation of the United Nations Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power and the Handbook on Justice for Victims : On the use and application of theUnited Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power .
 002: On 11 April the Rome Statute was ratified and went into force on 1 July, at which time the• 2International Criminal Court became effective and it included the creation of a Victim and WitnessUnit.
 003: On 2 October the Tokiwa International Victimology Institute, in Mito, Japan, opened its doors• 2
to promote victim rights, to conduct seminars, courses, publish an international journal, host annual
symposia and lectures and research victimology.
• 2
 004: The World Society of Victimology at its annual Executive Committee meeting in Orlando,
Florida adopted a dramatic new strategic plan to commit itself to the ideals and promises of the UN
Declaration (see Appendix II).
• 2
 005: Japan puts the UN Basic Principles of Justice for Victims of Crime and Abuse of Power into its
national legislation by adopting a new fundamental law for crime victims. To ensure that the principles
would be initiated, the Prime Minister established a cabinet level committee. The new law includes
services for victims, restitution from the offender, information about criminal justice and a right toformally participate in the criminal justice process.  
• 2
 009: The World Society of Victimology held its 13 International Symposium in Mito, Japan, bringing
together 483 participants from 51 countries.

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APPENDIX IIUN DECLARATION OF BASIC PRINCIPLES OF JUSTICE FOR VICTIMS OF
CRIME AND ABUSE OF POWER
                                               A/RES/40/34                                               29 November 1985                                               96th plenary meeting

Declaration of Basic Principles of Justice for Victims of Crime and Abuse of PowerThe General Assembly,
Recalling that the Sixth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders recommended that the United Nations should continue its present work on the development ofguidelines and standards regarding abuse of economic and political power,
Cognizant that millions of people throughout the world suffer harm as a result of crime and the abuse of
power and that the rights of these victims have not been adequately recognized,
Recognizing that the victims of crime and the victims of abuse of power, and also frequently theirfamilies, witnesses and others who aid them, are unjustly subjected to loss, damage or injury and that theymay, in addition, suffer hardship when assisting in the prosecution of offenders, . Affirms the necessity of adopting national and international measures in order to secure the universal
1and effective recognition of, and respect for, the rights of victims of crime and of abuse of power;
 . Stresses the need to promote progress by all States in their efforts to that end, without prejudice to2
the rights of suspects or offenders; . Adopts the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, annexed3
to the present resolution, which is designed to assist Governments and the international community intheir efforts to secure justice and assistance for victims of crime and victims of abuse of power;
 . Calls upon Member States to take the necessary steps to give effect to the provisions contained in the4
Declaration and, in order to curtail victimization as referred to hereinafter, endeavor:
(a) To implement social, health, including mental health, educational, economic and specific crime
prevention policies to reduce victimization and encourage assistance to victims in distress;
(b) To promote community efforts and public participation in crime prevention;
(c) To review periodically their existing legislation and practices in order to ensure responsivenessto changing circumstances, and to enact and enforce legislation proscribing acts that violate
internationally recognized norms relating to human rights, corporate conduct, and other abuses ofpower;
(d) To establish and strengthen the means of detecting, prosecuting and sentencing those guilty ofcrimes;(e) To promote disclosure of relevant information to expose official and corporate conduct to public
scrutiny, and other ways of increasing responsiveness to public concerns;
(f) To promote the observance of codes of conduct and ethical norms, in particular international
standards, by public servants, including law enforcement, correctional, medical, social service andmilitary personnel, as well as the staff of economic enterprises;
(g) To prohibit practices and procedures conducive to abuse, such as secret places of detention andincommunicado detention;

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VISITING EXPERTS’ PAPERS

(h) To co-operate with other States, through mutual judicial and administrative assistance, in suchmatters as the detection and pursuit of offenders, their extradition and the seizure of their assets, tobe used for restitution to the victims;
5. Recommends that, at the international and regional levels, all appropriate measures should be taken:
(a) To promote training activities designed to foster adherence to United Nations standards and norms
and to curtail possible abuses;
(b) To sponsor collaborative action-research on ways in which victimization can be reduced andvictims aided, and to promote information exchanges on the most effective means of so doing;
(c) To render direct aid to requesting Governments designed to help them curtail victimization andalleviate the plight of victims;
(d) To develop ways and means of providing recourse for victims where national channels may beinsufficient; . Requests the Secretary-General to invite Member States to report periodically to the General
6
Assembly on the implementation of the Declaration, as well as on measures taken by them to this effect; . Also requests the Secretary-General to make use of the opportunities, which all relevant bodies and7organizations within the United Nations system offer, to assist Member States, whenever necessary,in improving ways and means of protecting victims both at the national level and through international
co-operation;
 . Further requests the Secretary-General to promote the objectives of the Declaration, in particular by
8
ensuring its widest possible dissemination;
 . Urges the specialized agencies and other entities and bodies of the United Nations system, other9
relevant intergovernmental and non-governmental organizations and the public to co-operate in theimplementation of the provisions of the Declaration.

ANNEX
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power
A. Victims of Crime . “Victims” means persons who, individually or collectively, have suffered harm, including physical or1
mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights,
through acts or omissions that are in violation of criminal laws operative within Member States, including
those laws proscribing criminal abuse of power.
 . A person may be considered a victim, under this Declaration, regardless of whether the perpetrator is2
identified, apprehended, prosecuted or convicted and regardless of the familial relationship between theperpetrator and the victim.  The term "victim" also includes, where appropriate, the immediate family or
dependants of the direct victim and persons who have suffered harm in intervening to assist victims in
distress or to prevent victimization.
 . The provisions contained herein shall be applicable to all, without distinction of any kind, such as race,3
color, sex, age, language, religion, nationality, political or other opinion, cultural beliefs or practices,
property, birth or family status, ethnic or social origin, and disability.
Access to justice and fair treatment
 . Victims should be treated with compassion and respect for their dignity. They are entitled to access to4
the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm thatthey have suffered.

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 . Judicial and administrative mechanisms should be established and strengthened where necessary
5
to enable victims to obtain redress through formal or informal procedures that are expeditious, fair,
inexpensive and accessible.  Victims should be informed of their rights in seeking redress through suchmechanisms.
 . The responsiveness of judicial and administrative processes to the needs of victims should be
6
facilitated by:(a) Informing victims of their role and the scope, timing and progress of the proceedings and of
the disposition of their cases, especially where serious crimes are involved and where they haverequested such information;
(b) Allowing the views and concerns of victims to be presented and considered at appropriate stagesof the proceedings where their personal interests are affected, without prejudice to the accused andconsistent with the relevant national criminal justice system;
(c) Providing proper assistance to victims throughout the legal process;(d) Taking measures to minimize inconvenience to victims, protect their privacy, when necessary, andensure their safety, as well as that of their families and witnesses on their behalf, from intimidation
and retaliation;
(e) Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees
granting awards to victims.
 . Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary7
justice or indigenous practices, should be utilized where appropriate to facilitate conciliation and redressfor victims.
Restitution
 . Offenders or third parties responsible for their behavior should, where appropriate, make fair8
restitution to victims, their families or dependants. Such restitution should include the return of property
or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of thevictimization, the provision of services and the restoration of rights.
 . Governments should review their practices, regulations and laws to consider restitution as an available
9
sentencing option in criminal cases, in addition to other criminal sanctions.
 0. In cases of substantial harm to the environment, restitution, if ordered, should include, as far as1
possible, restoration of the environment, reconstruction of the infrastructure, replacement of community
facilities and reimbursement of the expenses of relocation, whenever such harm results in the dislocationof a community.
 1. Where public officials or other agents acting in an official or quasi-official capacity have violated
1
national criminal laws, the victims should receive restitution from the State whose officials or agentswere responsible for the harm inflicted.   In cases where the Government under whose authority thevictimizing act or omission occurred is no longer in existence, the State or Government successor in title
should provide restitution to the victims.
Compensation
 2. When compensation is not fully available from the offender or other sources, States should endeavor
1
to provide financial compensation to:(a) Victims who have sustained significant bodily injury or impairment of physical or mental health asa result of serious crimes;
(b) The family, in particular dependants of persons who have died or become physically or mentally
incapacitated as a result of such victimization.

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THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS 3. The establishment, strengthening and expansion of national funds for compensation to victims should
1
be encouraged. Where appropriate, other funds may also be established for this purpose, including thosecases where the State of which the victim is a national is not in a position to compensate the victim forthe harm.
Assistance 4. Victims should receive the necessary material, medical, psychological and social assistance through1
governmental, voluntary, community-based and indigenous means.
 5. Victims should be informed of the availability of health and social services and other relevant
1
assistance and be readily afforded access to them.
 6. Police, justice, health, social service and other personnel concerned should receive training to1sensitize them to the needs of victims, and guidelines to ensure proper and prompt aid.
 7. In providing services and assistance to victims, attention should be given to those who have special
1
needs because of the nature of the harm inflicted or because of factors such as those mentioned inparagraph 3 above.

B. Victims of abuse of power 8. “Victims” means persons who, individually or collectively, have suffered harm, including physical1or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental
rights, through acts or omissions that do not yet constitute violations of national criminal laws but ofinternationally recognized norms relating to human rights.
 9. States should consider incorporating into the national law norms proscribing abuses of power and1
providing remedies to victims of such abuses. In particular, such remedies should include restitution and/or compensation, and necessary material, medical, psychological and social assistance and support.
 0. States should consider negotiating multilateral international treaties relating to victims, as defined in2paragraph 18.
 1. States should periodically review existing legislation and practices to ensure their responsiveness2
to changing circumstances, should enact and enforce, if necessary, legislation proscribing acts that
constitute serious abuses of political or economic power, as well as promoting policies and mechanisms
for the prevention of such acts, and should develop and make readily available appropriate rights andremedies for victims of such acts.

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APPENDIX III
Draft Convention – 5 December 2009

UN Convention on Justice and Support for Victims of Crime and Abuse of Power
PREAMBLE
The State Parties to this Convention :Recalling the resolution of the UN General Assembly (GA/RES/50/34) in 1985 which called
upon Member State to take the necessary steps to give effect to the provisions contained in the
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Recognizing that millions
of people, including many women and children, throughout the world still suffer harm as a result of crime,
abuse of power and terrorism, and that the rights of these victims still have not been adequately recognized,
and that they may, in addition, suffer hardship when assisting in the prosecution of perpetrators,
Noting the partial progress achieved by some Member State in• legislating the basic principles of justice into domestic laws combined with a high level office toimplement policies and programs to provide comprehensive measures for victims of crime;• p roviding victims of crime with better information, support services, reparation from offenders,compensation from the state and a role in criminal proceedings;• e stablishing programmes to protect victims of crime who are vulnerable, for instance because ofgender or age;• launching permanent boards and legislation to promote the use of effective and proven prevention of
victimization at all levels of government.
Noting the initiatives at the UN to implement the Declaration, including:• UN Commission endorsement of the website Victimology.nl in 1998;• U
 N Commission approval of The Guide for Policy Makers and the Handbook on Justice for Victims in
1999;
• S
 tatute of Rome in 1998 (and later the Rules of Procedure and Evidence) to establish the International
Criminal Court;• C onvention on Trans-national Organized Crime in 2000 and its optional protocol in 2002 on trafficking
that include specific sections for victims;• ECOSOC adoption in 2002 of the Guidelines on Restorative Justice;• UN Commission funding in 2003 for 19 pilot projects;• ECOSOC adoption in 2005 of the Guidelines for Child Victims and Witnesses;• ECOSOC acceptance in 2002 of crime prevention guidelines;• U
 N General Assembly adoption of the Basic Principles and Guidelines on the Rights to a Remedy andReparation for Victims of Gross Violations of International Human Rights Law and Serious Violationsof International Humanitarian Law in 2005.
Recognizing that some issues relating to justice and support for victims are handled increasingly througha variety of processes often referred to as restorative justice. This includes systems found in indigenous
societies and incorporates principles of community involvement in dispute reconciliation; perpetrator
accountability; victim empowerment; and restoration of harmony in relationships and community. Some
examples include mediation, family group conferencing and indigenous community justice systems.
Noting in 2005 the inclusion in the Declaration of the UN Crime Congress in Bangkok by the Member
State of the following paragraph:“17. We recognize the importance of giving special attention to the need to protect witnesses and victims

64THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERSof crime and terrorism, and we commit ourselves to strengthening, where needed, the legal and financial
framework for providing support to such victims, taking into account, inter alia, the Declaration of Basic
Principles of Justice for Victims of Crime and Abuse of Power.”
Recognizing the importance of promoting full use and application of the UN Declaration on the Basic
Principles of Justice for Victims of Crime and Abuse of Power.

Have agreed as follows :PART I GENERAL CONSIDERATIONSArticle 1
Definitions( 1) ‘Victims’ means natural persons who, individually or collectively, have suffered harm including
physical or mental injury, emotional suffering or economic loss or violations of fundamental rights inrelation to victimizations identified under ‘scope’.
( 2) A person is a victim regardless of whether the crime is reported to the police, regardless of whether aperpetrator is identified, apprehended, prosecuted or convicted and regardless of the familial relationshipbetween the perpetrator and the victim. The term ‘victims’ also includes, where appropriate, theimmediate family or dependants of the direct victims and persons who have suffered in intervening toassist victims in distress or to prevent victimization.
(3) A ‘witness’ is a person who could be called to a court or other appropriate forum to provide testimony.
( 4) An ‘expert’ is a person who by virtue of specialized training, particular knowledge or experienceassists the legal system.

Article 2
Scope
This convention covers natural persons who are victimized by acts or omissions that:
(a)  are violations of criminal laws of State Parties or;( b) are abuses of power; defined as acts or omissions that are not violations of national criminal laws
but are violations of internationally recognized jus cogens norms, and/or are violations by person(s) in aposition of power within a political structure, who misapply that power against vulnerable persons andsuffer harm or death as a result.
( c) are acts of terrorism, as defined in international instruments relevant to terrorism, intended to cause
death or serious bodily harm to civilians or noncombatants, or damage to property, when the purposeof such an act, by its nature or context, is to intimidate a population, or to compel a government or aninternational organization to do or to abstain from doing any act.
( d) are acts of human trafficking, which includes persons who have been kidnapped, coerced or deceived
away from their homes and communities with the promise of legitimate employment but in actual fact issexual exploitation, forced prostitution, bonded labor, debt bondage or slavery.

Article 3
General application( 1) Nothing in this Convention shall diminish any provisions which protect the rights and interests ofvictims which are contained in the law and practice of a State Party or international law in force in that
State.
(2) State Parties shall undertake to implement these provisions to the maximum extent of their available

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resources. For planning purposes, State Parties shall set priorities for implementing the provisions andseek to provide them over time through progressive realization of goals.
( 3) State Parties shall ensure that the provisions contained herein shall be applicable to all, without
discrimination of any kind, such as race, color, gender, age, language, religion, nationality, political orother opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, anddisability. This will be without prejudice to providing special justice and support best suited to victims
who are particularly vulnerable because of age, gender, disability or other characteristics.
( 4) State Parties shall ensure that all officials and other persons dealing with victims treat them withcourtesy, compassion, cultural sensitivity, and respect for their rights and dignity.

Article 4
Commitment to reduce victimization
State Parties shall commit to provide both justice and support for victims and to reduce victimizationconsistent with international guidelines by, inter alia ,  developing:(a) more effective detection, prosecution, sentencing and corrections of perpetrators,
consistent with internationally recognized norms;( b) measures to reduce the risk of occurrence of victimization by considering vulnerable groups andidentifying resource deficiencies and vulnerability factors; and, creating ways to neutralize theseweaknesses;( c) strategies to reduce the opportunity for repeat victimization by improving services and support for
those already victimized;
(d) international cooperation to exchange proven and promising practices and seek
trans-national solutions.

PART II RIGHTS AND DUTIES
Article 5
Access to justice and fair treatment( 1) State Parties shall provide victims with access to the mechanisms of justice and redress which isexpeditious, fair, inexpensive and accessible, as provided for by domestic legislation, through:(a) judicial and administrative mechanisms which will enable victims to obtain redress;
( b) informal mechanisms for the resolution of disputes, including mediation, arbitration, andcustomary justice processes or indigenous practices, where appropriate, to facilitate conciliation andredress for victims;
(c) information about their rights in seeking redress through all these mechanisms.
( 2) State Parties shall ensure that the judicial, administrative and informal processes are responsive tothe needs of victims. This should be facilitated by:(a) giving the victim a fair hearing within a reasonable time in the determination of their entitlement
to a remedy for the injury, loss or damage suffered by them as a result of their victimization without
prejudice to the accused;(b) allowing the views and concerns of victims to be presented and considered at appropriate stagesof proceedings where their personal interests are affected, without prejudice to the accused andconsistent with the relevant domestic criminal justice system;
( c) allowing victims to present their views and concerns themselves or through legal or otherrepresentatives without prejudice to the discretion of the court, tribunal or other appropriate
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(d) the prompt return to victims of their property, taken or recovered by the police or any otheragency for the purpose of the investigation, when no longer needed;(e) providing to victims, where appropriate, the right of appeal against decisions of the prosecutorial
authority not to prosecute in cases where they were victimized.
(f) providing proper assistance to victims throughout informal, administrative, investigative andjudicial processes;
( g) taking measures to minimize inconvenience to victims and protect their privacy wherever
appropriate;(h) ensuring the safety of victims, as well as that of their families and witnesses on their behalf, from
intimidation and retaliation;
(i) avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees
granting awards to victims;
(j) ensuring the enforcement of any order or decree granting awards to victims.
( 3) State Parties shall reimburse victims and witnesses for their reasonable expenses related to theprocedure incurred as a result of their legitimate participation in criminal proceedings.

Article 6
Protection of victims , witnesses and experts( 1) State Parties shall take appropriate measures in accordance with their domestic legal systems toprotect the safety, physical, psychological, and social well-being, dignity and privacy of victims, witnesses
and experts from potential retaliation or intimidation and, as appropriate, for their relatives and otherpersons close to them.
(2) The measures envisaged in paragraph 1 of this article may include:(a) establishing procedures for the physical protection of such persons, such as, where appropriate,
non-disclosure or limitations on the disclosure of information concerning the identity andwhereabouts of such persons; and/or to the extent necessary and feasible, relocating them, changing
their identity and any other measures needed for their protection;
(b) providing evidentiary rules to permit victims, witnesses and experts to give testimony in amanner that ensures the safety of such persons, such as permitting testimony to be given through theuse of communications technology such as video or other appropriate means;(c) agreements or arrangements with other State Parties for the relocation of persons.

Article 7
Information( 1) State Parties shall ensure that victims have a right to information, and must be informed of this,from their first contact with law enforcement or other agencies. State Parties shall ensure that victims
receive general information in the most expeditious and efficient method appropriate to the culture
such as through oral or written communication with concern for literacy and literary traditions.
Specific information should be given person to person. Such information should facilitate an informed
understanding for victims and shall be at least as follows:
(a) the type of services or organizations to which they can turn for support;
(b) the type of support which they can obtain, including the availability of health and social services
and other relevant assistance;
(c) where and how they can report an offence;(d) procedures following such a report and their role in connection with such procedures;
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cases, especially where serious crimes are involved and where they have requested such information;
(f) how and under what conditions they can obtain protection;
(g) to what extent and on what terms they have access to legal advice or legal aid;
(h) requirements for them to be entitled to compensation;
(i) if they are resident in another State, any special arrangements available to them in order to protect
their interests;
(j) where and how victims could obtain more information.
(2) State Parties shall ensure that victims who have expressed a wish to this effect are kept informed of:
(a) the outcome of their complaint;
( b) relevant factors enabling them, in the event of prosecution, to know the conduct of theproceedings regarding the person prosecuted for offences concerning them, except in exceptional
cases where the proper handling of the case may be adversely affected;
(c) the court’s sentence.
( 3) State Parties shall take the necessary measures to ensure that the victim is notified, at least in cases
where there might be danger to the victim, when the person prosecuted or sentenced for an offence isreleased.
( 4) In so far as State Parties take forward on their own initiative the information referred to in paragraphs
2 and 3, they shall ensure that victims have the right not to receive it, unless communication thereof iscompulsory under the terms of the relevant criminal proceedings.

Article 8
Assistance( 1) State Parties shall ensure that the necessary material, medical, psychological and social assistanceto victims is provided through government, voluntary, community-based and indigenous means. Suchassistance may be provided through any agencies or comprehensive programs that are appropriate underdomestic laws or norms.
( 2) State Parties should be encouraged to develop networks of criminal justice, social services, health andmental health services, victim assistance services and other relevant groups or institutions in order tofacilitate referrals, coordination and planning among those providing assistance.
( 3) State Parties should be encouraged to establish local and regional victim assistance centers tocoordinate networks, develop and make referrals, and provide outreach to victims and direct services
where appropriate.
( 4) State Parties shall facilitate the referral of victims by the police and other relevant agencies to victim
assistance centers or other service institutions.
( 5) Language understood by victims should be encouraged. If translators are needed, they should betrained in the subject matter that they are addressing and victim support personnel should be familiar
with common terms that will be used.
(6) State Parties shall seek to establish the following kinds of assistance to victims:
A. Immediate Assistance:
(a) medical attention and accompaniment to medical exams, including first aid, emergency medical
attention and medical transport. Support services should be provided to victims when forensic
examinations are called for or in the aftermath of death;(b) material support such as shelter, housing, transportation, or property repair;(c) crisis intervention, involving crisis counseling and problem solving;
(d) information and notification about what happened to the extent that such information does not

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interfere with investigation, including notification of any immediate responsibilities to the criminal
justice system. Assistance should be offered in notifying family or friends of what happened;(e) protection from repeat victimization should be provided through the development of safety
and security plans. This may include information on police surveillance, relocation, emergency
communication and the like. It may also involve assistance with obtaining protection orders throughthe judicial system;
(f) victims should be protected from media intrusion;
(g) general support and advocacy should be offered when victims interact with social, justice andmedical institutions as well as appropriate referrals for urgent needs;
(h) confidentiality and privacy should be guaranteed to the extent allowable under current law andpolicy.
B. Medium term Assistance:
(a) the continuation of the services provided under A ‘Immediate Assistance’;(b) psycho/social health and spiritual interventions that may include post-trauma counseling, mental
health therapy, family counseling, pastoral counseling, or traditional healing intercessions;(c) assistance with financial needs or claims including filing and advocacy for compensation claims,
restitution, insurance, or emergency funds.
(d) legal referrals should be provided for legal assistance in the criminal or civil justice systems. To
the extent possible such legal assistance should be free.
(e) Information, support and assistance concerning options for participation in alternative justiceforums should be provided.
C. Long term Assistance:
( a) the continuation of the services provided under A ‘Immediate Assistance’ and B ‘Medium
Assistance’;(b) assurances and re-establishment of the victim’s place in the family, community, education and in
the workplace should be encouraged;

Article 9
Restorative justice( 1) State Parties shall endeavor, where appropriate, to establish or enhance systems of restorative
justice, that seek to represent victims’ interests as a priority. State shall emphasize the need for
acceptance by the offender of his or her responsibility for the offence and the acknowledgement of theadverse consequences of the offence for the victim.
( 2) State Parties shall ensure that victims shall have the opportunity to choose or to not choose
restorative justice forums under domestic laws, and if they do decide to choose such forums, thesemechanisms must accord with victims’ dignity, compassion and similar rights and services to thosedescribed in this Convention.

Article 10
Restitution including reparation( 1) State Parties shall legislate to make offenders responsible for paying fair restitution to victims,
their families or dependants. Such restitution should include the return of property or payment for theharm or loss suffered, reimbursement of expenses incurred as a result of the victimization, provide theopportunity for a sincere apology where appropriate place in 9 above, the provision of services and therestoration of rights.
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restitution is an available sentencing option in criminal cases.
(b) In cases of environmental crime, State Parties shall legislate to include restitution to restore
the environment, reconstruction of the infrastructure, replacement of community facilities andreimbursement of the expenses of relocation, whenever such harm results in the dislocation of thecommunity.
(c) Where public officials or other agents acting in an official or quasi-official capacity have violated
domestic criminal laws, State Parties shall legislate to provide restitution to victims from the State
whose officials or agents were responsible for the harm inflicted. In cases where the Government
under whose authority the victimizingact or omission occurs is no longer in existence, the State or
Government successor in title shall provide restitution to the victims.
(d) When there is a court order for restitution, the State Party shall be responsible for enforcing theorder.
(e) In cases where the offender is under a legal obligation to pay restitution as well as other pecuniary
sanctions, the former shall have precedence over the latter.
(f) In cases where the victim seeks restitution through civil remedies, State shall endeavor to
expedite these proceedings and minimize expenses.

Article 11Compensation( 1) When restitution is not fully available from the offender or other sources, State Parties shall endeavor
to provide financial compensation to:(a) victims who have sustained significant bodily injury or impairment of physical or mental health asa result of intentional violent crime;
(b) the victims’ family, in particular dependants of persons who have died (or become physically or
mentally incapacitated) as a result of such victimization.
(2) Compensation shall be provided for:(a) treatment and rehabilitation for physical injuries;
(b) pain and suffering and other psychological injuries caused to victims;( 3) State should also consider compensation for loss of income, funeral expenses and loss of maintenancefor dependants.
( 4) The establishment, strengthening and expansion of national, regional or local funds for compensation
to victims should be encouraged. State Parties may consider providing funds through general revenue,
special taxes, fines, private contributions, and other sources.
( 5) These funds shall guarantee fair, appropriate and timely compensation. They should also allow for
emergency and/or interim payments. Special care should be taken to make the funds accessible. Thisrequires, inter alia , extensive dissemination of information on the eligibility criteria and the procedure to
be followed. State should also consider other means to raise public awareness of the existence of thesefunds.
( 6) Where appropriate, other funds may also be established for this purpose, including in those cases
where the State of which the victim is a national is not in a position to compensate the victim for theharm.
( 7) In cases of cross border victimization, the State where the crime has occurred should pay
compensation to the foreign national, subject to the principle of reciprocity.

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PART III IMPLEMENTATION, MONITORING AND COOPERATION
Article 12
Implementation
(1) State Parties shall take appropriate measures to:( a) bring into force the laws, regulations and administrative provisions necessary for the
implementation of this Convention;
(b) establish and enhance such institutions and mechanisms as may be necessary for the achievementof the objectives of this Convention;
(c) ensure the establishment and/or enhancement of appropriate procedures, which are victim-friendly
and which must be adhered to.
( 2) State Parties shall ensure that personnel dealing with victims and witnesses make every effort toadopt an interdisciplinary and cooperative approach in aiding them. This approach may include protocols
for the different stages of the justice process to encourage cooperation among bodies that provide
services to victims and witnesses.
( 3) State Parties shall ensure the building of partnerships among local, national and international
stakeholders, including intergovernmental and non-governmental organizations, civil society as well as
the private sector in the implementation process. To this end, all stakeholders shall be encouraged tocontribute to the resources required for implementation.
(4) State Parties shall foster, develop and improve international cooperation in order to:(a) facilitate the more effective protection of victims’ interests in informal, administrative or judicial
proceedings;
(b) promote mutual assistance for the purpose of facilitating collection and exchange of informationand the detection, investigation and prosecution of crimes.
( 5) State Parties shall provide adequate training, education and information to all persons working withvictims and witnesses with a view to improving and sustaining particular methods, approaches andattitudes that protect and deal effectively and sensitively with victims and witnesses. This training should
particularly be aimed at avoiding secondary victimization.
(6) State Parties shall ensure that sufficient information, advice and assistance be provided to:(a) victims in order to enable them to be empowered to seek assistance from appropriate quarters so
as to be able to receive justice, support and assistance in respect of their victimization;
(b) members of the public in order to enable them to understand the reasons for provision of justice,support and assistance to victims.
( 7) State Parties shall foster, develop and improve cooperation between State in order to facilitate themore effective implementation of the provisions contained in this Convention and the more effective
protection of victims´ interests in criminal proceedings, whether in the form of networks directly linked
to the judicial system or of links between organizations which provide support to victims.

Article 13
Monitoring( 1) State Parties shall take appropriate measures to monitor the efficiency and effectiveness of policies
and measures designed for the implementation of this Convention. In particular, they shall undertake
periodical review and evaluation of their legislation, regulations and procedures, including the use of
research.
( 2) State Parties shall ensure that the various agencies, organs or bodies dealing with victims shallsubmit periodic reports to an appropriate authority within their domestic jurisdiction designated for thispurpose.

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RESOURCE MATERIAL SERIES No.81( 3) State Parties undertake to make the principles and provisions of this Convention widely known by
appropriate and active means.

Article 14
Committee on Justice and Support for Victims of Crime and Abuse of Power( 1) For the purpose of examining the progress made by State Parties in achieving the realization of theobligations undertaken in the Convention, there shall be established a Committee on Justice and Supportof Victims of Crime and Abuse of Power, which shall carry out the functions hereinafter provided.
(a) The Committee shall consist of ten experts of high moral standing and recognized competence inthe field covered by this Convention. The members of the Committee shall be elected by State Parties
from among their nationals and shall serve in their personal capacity, consideration being given toequitable geographical distribution, as well as to the principal legal systems.
(b) The members of the Committee shall be elected by secret ballot from a list of persons nominatedby State Parties. Each State Party may nominate one person from among its own nationals.
(c) The initial election to the Committee shall be held no later than six months after the date of theentry into force of the present Convention and thereafter every second year. At least four months
before the date of each election, the Secretary-General of the United Nations shall address a letter toState Parties inviting them to submit their nominations within two months. The Secretary-Generalshall subsequently prepare a list in alphabetical order of all persons thus nominated, indicating
State Parties which have nominated them, and shall submit it to the State Parties to the present
Convention.
(d) The elections shall be held at meetings of State Parties convened by the Secretary- General at
United Nations Headquarters. At those meetings, for which two thirds of State Parties shall constitutea quorum, the persons elected to the Committee shall be those who obtain the largest number ofvotes and an absolute majority of the votes of the representatives of State Parties present and voting.
(e) The members of the Committee shall be elected for a term of four years. They shall be eligible forre-election if re-nominated. The term of five of the members elected at the first election shall expire
at the end of two years; immediately after the first election, the names of these five members shall bechosen by lot by the Chairman of the meeting.
(f) If a member of the Committee dies or resigns or declares that for any other cause he or she canno longer perform the duties of the Committee, the State Party which nominated the member shallappoint another expert from among its nationals to serve for the remainder of the term, subject to theapproval of the Committee.
(g) The Committee shall establish its own rules of procedure.
(h) The Committee shall elect its officers for a period of two years.
(i) The meetings of the Committee shall normally be held at United Nations Headquarters or at
any other convenient place as determined by the Committee. The Committee shall normally meet
annually. The duration of the meetings of the Committee shall be determined, and reviewed, if
necessary, by a meeting of the State Parties to the present Convention, subject to the approval of theGeneral Assembly.
(j) The Secretary-General of the United Nations shall provide the necessary staff and facilities for theeffective performance of the functions of the Committee under the present Convention.
(k) With the approval of the General Assembly, the members of the Committee established under
the present Convention shall receive emoluments from United Nations resources on such terms andconditions as the Assembly may decide.

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Article 15( 1) State Parties undertake to submit to the Committee, through the Secretary-General of the United
Nations, reports on the measures they have adopted which give effect to the rights recognized herein andon the progress made on the enjoyment of those rights:
(a) within two years of the entry into force of the Convention for the State Party concerned;
(b) thereafter every five years.
( 2) Reports made under the present Article shall indicate factors and difficulties, if any, affecting thedegree of fulfillment of the obligations under the present Convention. Reports shall also contain sufficient
information to provide the Committee with a comprehensive understanding of the implementation of theConvention in the country concerned.
( 3) A State Party which has submitted a comprehensive initial report to the Committee need not, in its
subsequent reports submitted in accordance with paragraph 1 (b) of the present article, repeat basic
information previously provided.
( 4) The Committee may request from State Parties further information relevant to the implementation of
the Convention.
( 5) The Committee shall submit to the General Assembly, through the Economic and Social Council,
every two years, reports on its activities.
(6) State Parties shall make their reports widely available to the public in their own countries.
( 7) The Committee is entitled, where appropriate, to make on-site visits to assess progress made in theimplementation of the Convention.

Article 16
Cooperation( 1) In order to foster the effective implementation of the Convention and to encourage international
co-operation in the field covered by the Convention:
( a) The United Nations Office on Drugs and Crime, the specialized agencies and other United
Nations organs shall be entitled to be represented at the consideration of the implementation of suchprovisions of the present Convention as fall within the scope of their mandate. The Committee may
invite the United Nations Office on Drugs and Crime, the specialized agencies and other competentbodies as it may consider appropriate to provide expert advice on the implementation of theConvention in areas falling within the scope of their respective mandates. The Committee may invite
the United Nations Office for Drugs and Crime, the specialized agencies and other United Nationsorgans to submit reports on the implementation of the Convention in areas falling within the scope of
their activities;
(b) The Committee shall develop a regular dialogue and discuss possible areas of cooperation with all
relevant actors, including national human rights institutions, governments, relevant United Nation
bodies, specialized agencies and programs, in particular with the United Nations Office on Drugs
and Crime, the Counter- Terrorism Committee of the Security Council and the Office of the United
Nations High Commissioner for Human Rights.
(c) The Committee shall transmit, as it may consider appropriate, to the United Nations Officefor Drugs and Crime, specialized agencies and other competent bodies, any reports from State
Parties that contain a request, or indicate a need, for technical advice or assistance, along with theCommittee’s observations and suggestions, if any, on these requests or indications;(d) The Committee may recommend to the General Assembly to request the Secretary- General
to undertake on its behalf studies on specific issues relating to the matters covered under thisConvention.

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PART IV CONCLUDING PROVISIONS
Article 17
The present Convention shall be open for signature by all State.

Article 18
The present Convention is subject to ratification. Instruments of ratification shall be deposited with theSecretary-General of the United Nations.

Article 19
The present Convention shall remain open for accession by any State. The instruments of accession shallbe deposited with the Secretary-General of the United Nations.

Article 20( 1) The present Convention shall enter into force on the thirtieth day following the date of deposit with
the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.
( 2) For each State ratifying or acceding to the Convention after the deposit of the twentieth instrumentof ratification or accession, the Convention shall enter into force on the thirtieth day after the deposit bysuch State of its instrument of ratification or accession.

Article 21( 1) Any State Party may propose an amendment and file it with the Secretary-General of the United
Nations. The Secretary-General shall thereupon communicate the proposed amendment to State Parties,
with a request that they indicate whether they favor a conference of State Parties for the purpose of
considering and voting upon the proposals. In the event that, within four months from the date of such
communication, at least one third of the State Parties favor such a conference, the Secretary-Generalshall convene the conference under the auspices of the United Nations. Any amendment adopted bya majority of State Parties present and voting at the conference shall be submitted to the General
Assembly for approval.
( 2) An amendment adopted in accordance with paragraph 1 of the present article shall enter into force
when it has been approved by the General Assembly of the United Nations and accepted by a two-thirds
majority of State Parties.
( 3) When an amendment enters into force, it shall be binding on those State Parties which have accepted
it, other State Parties still being bound by the provisions of the present Convention and any earlier
amendments which they have accepted.

Article 22( 1) The Secretary-General of the United Nations shall receive and circulate to all State the text ofreservations made by State at the time of ratification or accession.
( 2) A reservation incompatible with the object and purpose of the present Convention shall not be
permitted.
( 3) Reservations may be withdrawn at any time by notification to that effect addressed to the SecretaryGeneral of the United Nations, who shall then inform all State. Such notification shall take effect on thedate on which it is received by the Secretary-General74THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

Article 23
A State Party may denounce the present Convention by written notification to the Secretary General of
the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by
the Secretary-General.

Article 24
The Secretary-General of the United Nations is designated as the depositary of the present Convention.

Article 25
The original of the present Convention, of which the Arabic, Chinese, English, French, Russian andSpanish texts are equally authentic, shall be deposited with the Secretary- General of the United Nations.
IN WITNESS THEREOF the undersigned plenipotentiaries, being duly authorized thereto by theirrespective governments, have signed the present Convention.

75

THE CURRENT SITUATION AND CHALLENGES OF MEASURES FOR
VICTIMS OF CRIME IN THE KOREAN CRIMINAL JUSTICE SYSTEM
Cho Kyoon Seok*

I. HISTORY AND DEVELOPMENT OF MEASURESFOR VICTIMS OF CRIME
In the Korean criminal justice system, prosecutors hold exclusive authority in investigating andindicting criminal cases. Victims of crime may report the damage done by offences or file a complaint to an
investigation agency, but they have no authority to directly indict criminals, nor to initiate formal criminal
procedures.1 Furthermore, the structure of the Korean criminal procedure is such that factors from both theadversarial system of common law countries and the inquisitorial system of civil law countries are combined.
However, victims of crime have not been acknowleged as direct parties in their own criminal cases. Rather,
they have been treated as either a method of evidence or the object for obtaining evidence. Thus, victims
of crime basically become “complainant” in the investigation phase and “witness” in the trial phase, and areotherwise totally excluded from the criminal procedures.
The first special system for protection of, and assistance to, victims of crime (hereafter, measures forvictims of crime) introduced in the Korean criminal justice system is the compensation order system. Thissystem allows victims of certain crimes, such as bodily injury, death resulting from bodily injury, crimes
inflicting bodily injury and death through negligence, crimes concerning rape and infamous conduct, larceny
and robbery, fraud and extortion, and embezzlement and breach of trust, to receive compensation fordamages occurring from the defendant’s criminal behaviour as defined by the criminal justice procedure.
This compensation order system is stipulated expressly in the text of the Act on Special Cases concerning
Expedition , etc . of Legal Proceedings , which was enacted on 29 January 1981.
Afterwards, the newly amended Constitution of 29 October 1987 guarantees both the right of the victim
to testify in court, in Paragraph 5 of Article 27, as a fundamental right, and also the right of the victim toaid, in Article 30, in which a person who has been personally injured by acts of crime may get aid from theState according to what the law provides thereon. In this fashion, the authority of the crime victim’s rights
was laid out in the Constitution as influenced by the Declaration of Basic Principles of Justice for Victimsof Crime and Abuse of Power, adopted by the United Nations on 29 November 1985. In accordance with theprovision of Article 30, the Crime Victim Aid Act was adopted on 28 November 1987 and was implemented
on 1 July 1988. Following the requirement of Paragraph 5 of Article 28, the Criminal Procedure Act (CPA)
was also amended. The revised CPA defines the right of the victims of crime to testify in court in Article294-2. Unfortunately, in spite of the constitutional amendment, the rights of victims of crime have not been
properly respected nor protected, and in some cases have even been neglected because the criminal justicesystem places more emphasis on the protection and human rights of offenders.
In the 1990s, non-profit organizations started to support female victims in sexual violence and domestic
violence cases. For example, the Korea Sexual Violence Relief Center was established on 13 April 1991 anddrew public attention to the protection of human rights for female victims of sexual violence and domestic
violence. On 25 April 1992, the Korean Association of Victimology, which initiated active academic researchconcerning the topic of victimology, was also founded. Consequently, the need for special measures for thevictims of certain crimes related to sexual violence and domestic violence became more widely and sociallyacknowledged. And these needs resulted in the following legislative Acts:* Professor of Law, School of Law, Ewha Woman’s University, Seoul, Korea.
1 On the Korean justice system, See www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp ; UNAFEI(1995), Criminal Justice Profilesof Asia-Investigation, Prosecution, And Trial .

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THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS• A
 ct on Special Cases concerning the Punishment of Specific Violent Crimes (adopted on 31 December
1990);• A ct on the Punishment of Sexual Crimes and Protection of Victims Thereof (adopted on 5 January1994);• A ct on Special Cases concerning the Punishment , etc . of Crimes of Domestic Violence (adopted on 13
December 1997);• A ct on the Prevention of Domestic Violence and Protection of Victims (adopted on 31 December1997);• P rotection of Informants , etc . of Specific Crimes Act (adopted on 31 August 1999);• A ct on the Prevention of Juveniles from Sexual Abuse (adopted on 3 February);• A ct on Prevention of Sexual Traffic and Protection of Victims Thereof (adopted on 22 March 2004);• A ct on Punishment of Acts of Arranging Sexual Traffic (adopted on 22 March 2004).
Although the level of protections from this legislation is not yet very thorough, these Acts, nonetheless,guarantee some level of procedural rights to certain groups of crime victims in the criminal justice process.
On the other hand, there was rare assistance to victims of violent crimes such as murder and robbery,crimes related to traffic violations, and safety accidents caused by criminal acts.
In this situation, for the first time in Korea, the “Victim Support Center” was established as a civicorganization for crime victim assistance in the region of Gimcheon and Gumi on 5 September 2003.
The establishment of this centre was sponsored by the Gimcheon Branch of the Daegu District Public
Prosecutors’ Office (author of this article was Chief Prosecutor of the branch at that time ) . The foundingof this centre led to increased social interest in victims of crime. Consequently, the Ministry of Justice, theSupreme Prosecutors’ Office, and the National Police Agency, respectively, developed their own measuresfor victims of crime. The Committee on Judicial Reform, led by the Korean Supreme Court, also discussed
assistance provided to victims in the legal system and made recommendations in a final report submitted to
the President in December 2004.
More than two decades after the initial institutionalization of crime victim assistance, a basic law forvictim protections, the Crime Victim Protection Act , was finally enacted on 23 December 2005. The
Criminal Procedure Act was also amended on 1 June 2007, as one part of the Judicial Reform Plan, andenforced from 1 January 2008. The Revised CPA contains new provisions regarding:(1) presence of persons with reliable relationship (CPA §163-2, §221y③, §276);(2) interrogation of witness through video or other transmission (CPA §165-2);(3) notice to victims (CPA §259-2);(4) non-disclosure of victim’s statements (CPA §294-3); and(5) victims’ inspection and copying of litigation record (CPA §294-4).
The Revised Act also strengthens the victim’s right to make statements in court (CPA §294-2) andextends the purview of the victim’s petition for adjudication (CPA §260). As such, the status of victims ofcrime in the criminal procedures is strikingly enhanced under the Revised Act. Based on such a recent
introduction and re-organization of provisions regarding victim support, it is not an overstatement to say that
Korea is now witnessing a renaissance in providing support to victims of crime.
Table 1: History and Development of Measures for Victims of Crime
Date

Contents

29 January 1981

Compensation Order(Act on Special Cases concerning Expedition,etc. of Legal Proceedings)

29 October 1987

Amendment of Constitution(§30 right of crime victim aid, §27 right of the victim to testify incourt )

28 November 1987

Crime Victim Aid Act

Misc

Enforced 1 July
1988

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Date

Contents

28 November 1987

Amendment of CPA (§297-2 right of the victim to testify in court )5 January 1994

Act on the Punishment of Sexual Crimes and Protection of Victims
Thereof .

13 December 1977

Act on Special Cases concerning the Punishment , etc . of Crimes ofDomestic Violence .

31 December 1997

Act on the Prevention of Domestic Violence and Protection of Victims

5 September 2003

Establishment of the Gimcheon-Gumi Victim Support Center

7 June 2004

Misc

Establishment of the Office Crime Victim Assistance

National Police
Agency1 September 2004

Announcement of The Comprehensive Plan to Reinforce Protectionof, and Assistance to, Victims of Crime

MOJ

1 October 2004

Measures for the Protection of, and Assistance to, Victims of Crime

SPO

14 December 2005

Amenndment of Act on Special Cases concerning Expedition, etc. of
Legal Proceedings(Expansion of scope of Compensation Order, Reconciliation in
Criminal Proceeding)

23 December 2005

Crime Victims Protection Act

4 December 2006

Confirming The Basic Plan for Protection of, and Assistance to,Victims of Crime (2007 - 2011)

1 June 2007

Amendment of CPA (Extending the boundaries for victim protection)

3 September 2008

Establishment of the Korean Crime Victim Supporting Association(57 branches nationwide)

19 November 2008

The First National Meeting for the Human Rights of Korean Crime
Victims.

Enforced 24 March
2006

Enforced 1 January
2008

II. BACKGROUND TO THE DISCUSSION ON MEASURES FOR VICTIMS OF CRIME
A. Increased Sense of Insecurity about Crime
As explained so far, various procedures have been implemented for the protection of, and assistantce to,victims of crime in Korea. Several factors have contributed to this recent trend of increased interest in crime
victim assistance. Of these factors, a general sense of public insecurity and an increase in the public’s fear ofcrime are the most poignant.
In 2007, the total number of reported crimes was 1,965,977, a 7.5 % increase over 2006 and 3.8 times
higher than that of 1978, in which 513,165 crimes were reported. The number of reported criminal offences
per 100,000 citizens was 3,987.7, which is 2.9 times higher than that of 1978,2 in which 1,388.1 offences
per 100,000 citizens were reported. In particular, during the last ten years, the number of criminal offencescausing substantial damage to life, body, or property has steadily increased. For example:• h omicide has increased by 16.4% (966 cases → 1,124 cases);• r ape by 72.9% (7,886 cases → 13,634 cases);• a rson by 46.4% (1,157 cases → 1,694 cases); and2 Legal Research and Training Institute of Ministry of Justice. White Paper on Crime (2008), p.44, table -2.

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THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS• larceny by 141.9% (87,860 cases → 212,530 cases).
Only robbery has somewhat decreased (5,407 cases → 4,470 cases), but the number of robbery cases isstill high. As these numbers indicate, Koreans have become aware of a significant level of insecurity in theireveryday lives. Another concern of Korean society is a series of terrible disasters caused by criminal acts.
For instance, a person who had suffered from a mental disorder and lost all interest in his life deliberately set
a fire in the subway in the Daegu area on 18 February 2003. This fire killed 192 innocent persons and injured
147 persons.
This increase in the occurrence of crime and the frequency of large scale accidents has brought aboutan overall increase in the level of fear of crime throughout Korean society. Furthermore, this increase has
also provided Korean society with an opportunity to share in the sorrow, pain, and agony suffered by thosevictims, their bereaved families and to seriously consider the need to assist them.

B. Recognizing of Victims of Crime and Judicial Authorities’ Effort to Regain Public Trust
Although victims of crime commonly suffer great physical, mental, and financial damage—either directly
or indirectly—from crime, there has been a general lack of recognition about the extent to which they suffer.
In 2006, the Korean Institute of Criminology conducted a survey study of 484 crime victims (243 males and
241 females). According to the results of this study,3 victims indicated very negative emotional conditions
immediately after the criminal offence; they reported anger (reported by 80.7% of victims), anxiety (74%),
depression (68.8%), and emotional instability (64.3%). Victims also addressed questions regarding the levelof victimization they felt. These answers can be summarized in the order of mental damages (reported by
62.1% of victims), property losses (43%), and physical injuries (40.1%). When categorizing victims according
to basic personal information (sex, level of education), surrounding life information (marriage, home-owing),and socio-economic information (type of job, amount of income), victims of relatively low social statustended to report a higher level of impact on their lives by the crime, regardless of the type of damages.
Other than these direct damages, victims also reported secondary victimization conditions such as insomnia
and a feeling of emptiness (87.7%). After the crime, victims also indicated an inconvenience and generally
unpleasant experiences in their relationships with employers and colleagues (75.1%), family members(64.5%), friends (58.5%), police officers (42.7%), and media (11.2%).
In particular, victims of crime were not notified of any information while their cases proceeded fromthe beginning of the investigation to the final verdict, nor of any notice about the release of the alleged
offenders. Victims of crime were not given sufficient rights to access and collect information regarding thecases or to participate in the criminal justice proceedings against their offenders. Furthermore, during theinvestigation or trial phrase, the victims’ reputations and privacy were often infringed.
As a result, victims of crime generally have negative perceptions of the criminal justice system.
For example, many believe that it is useless to report a crime; they may humiliate themselves and be
victimized again during the investigation or trial; and recovery of damages in any way is almost impossible.
The accumulation of such distrust in judicial authorities has even led to a refusal to co-operate during
investigation or at the trial of the offenders. Recently, the judicial authorities have recognized a need toregain the trust of the public. Various policies and measures have therefore been implemented, one ofwhich is to have greater consideration for victims of crime and to have compassion and understanding fortheir needs. The judicial authorities have now come to the conclusion that the protection of, and assistanceto, victims of crime not only serves to enhance public trust, but is also the morally right response to take,especially in view of the fact that anyone can be a victim of crime.

C. Change of Social Conditions which Emphasize Human Rights and Social Welfare
Since the late 1990s, there has been a new atmosphere in Korean society which puts more emphasis
on democracy, human rights, and social welfare. While implementing new public programmes, the Korean
government has presented policies to meet these goals. As one of new programmes reflecting this policy,
the Korean government has developed measures for victims of crime. In other words, the changes in social
conditions inevitably provided an opportunity to review human rights and welfare for aliens or minority
groups. Following this trend, those issues which affect victims of crime, and which have traditionally been
3 Cho, Kyoon-seok; Choi, Insub; Lee, Soonrae, Study of Crime Victim in Korea , 2006.

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RESOURCE MATERIAL SERIES No.81

ignored in the criminal justice system, are now also under review.

D. Capacity Expansion of Civil Organizations Involved with Victims of Crime and Accumulation of
Study on Victimology
Another factor that has contributed to the recent active discussion of victims of crime is the capacity ofcivic, non-profit organizations which conduct public activities for the protection of, and assistance to, victims
of crime. The enhanced capacity of scholars to continue their academic research has also led to the recent
focus on crime victims. The activities of such scholars and civic organizations have provided a theoreticalbackground to develop new laws and systems which are now in place. In addition, their activities havecontributied to the practical execution of these laws and systems.
III. CONTENTS OF THE CRIME VICTIM PROTECTION ACT AS A BASIC LAW
In general, the rights enumerated in the following list are considered the rights of victims of crime:
1. The right to fair treatment;
2. The right to access information;
3. The right to recovery;
4. The right to express their opinions;5. The right to receive support;
6. The right to be free from re-victimization; and7. The right to safe and secure living.
The protection of, and assistance to, victims of crime generally indicate the fulfillment of the rights
mentioned above. Historically, there has been a progression in the types of assistance rendered to crime
victims. In the 1960s, financial assistance to victims of crime started; in the 1970s, the provision ofassistance offered by civic organizations flourished; and, in the 1980s and 1990s, systematic and legal
assistance began. Currently, the focus has moved towards the social welfare approach, one step forward from
criminal justice assistance.
Following the international trend of guaranteeing victims’ rights, the Crime Victim Protection Act(CVPA) was adopted in Korea on 1 December 2005. This statute was promulgated on 23 December 2005 andcame into force on 24 March 2006. The CVPA contains 27 Articles in 5 Chapters.

A. General Provisions (Chapter 1)
Chapter 1 contains Articles on the purpose of the Act, its basic principles, the definition of victims
of crime, and the duties of the central and local governments. The basic principles of the Act expressly
stipulate:
1. The human right of dignity to recover from damages occurring from a crime;
2. The right to protection of dignity and privacy; and3. The right to participate in legal procedures.
The Act also reflects the following three elements of protection of, and assistance to victims of crime:
efficient recovery from the aftermath of the crime, victims’ active participation in the criminal justicesystem, and the prevention of secondary victimization. The Act extends the boundary of the definition ofcrime victims as previously provided in various laws. The concept of crime victims in this Act includes aperson who has been injured by a criminal act, his or her spouse (including a de facto marital relationship),lineal ascendants and descendants, brothers and sisters, as well as a person who was injured while
conducting an act of crime prevention or providing aid to the victims.

B. Basic Measures for Protection of, and Assistance to, Victims of Crime (Chapter 2)
In Chapter 2 of the Act, various support measures for recovery are prescribed, such as counselling,
medical help, financial assistance, legal assistance and employment support. Victims of crime have theright to consult with investigators or participate in their trial. They also have the right to be informed
about results of investigation of their offenders, the trial date, trial result, and sentence imposed on theiroffenders, etc. In addition, there are provisions regarding the protection of the honour and privacy of crime
victims; training and education of personnel working for the protection of and assistance to crime victims;
and, the investigation of actual situations of crime victims and the basis for increasing public awareness ofthe necessity of crime victim support.
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THE 144th INTERNATIONAL SENIOR SEMINAR
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Followed by the enforcement of the Act, the Ministry of Justice has implemented the programmeof educating persons who work in the area of victim protection and support. In 2009, two education
programmes were executed: mentoring education for volunteers and professional education for criminal
mediators. In order to bring public awareness to victim support, the Ministry of Justice created the First
Crime Victims’ Week in November 2007 and held the First Human Rights of Korean Crime Victims
Competition on 29 November 2008. The Ministry also appointed a publicity ambassador for crime victims as
one way of increasing public awareness of crime victims.

C. The Basic Plan for Protection of, and Assistance to, Victims of Crime (Chapter 3)
Chapter 3 prescribes that the Minister of Justice must develop a basic plan for a systematic national
protection and assistance programme every five years. The basic plan is to be discussed by the Crime
Victims Protection Committee, which is made up of representatives from the Prosecutors’ Office, National
Police, Ministry of Gender Equality, Ministry of Education and Human Resources Development, as well assome other experts from non-governmental organizations. Upon the Minister of Justice’s adoption of thebasic plan decided by the Crime Victims Protection Committee, the Minister and heads of other relevant
central and local governmental agencies must prepare and enforce an annual plan for the implementation of
the basic plan.
Following the enforcement of the Act, the Ministry of Justice organized the Crime Victim Protection
Committee on 30 November 2006 and adopted the Basic Plan for Protection of, and Assistance to, Crime
Victims (2007-2011) on 4 December 2006. The Ministry of Justice also continued to try to develop a
One-stop System for Victims of Crime with the collaboration of central administrative agencies, local
governments, and civic organizations.

D. Corporations by Those Rendering Assistance to Victims of Crime (Chapter 4)
Chapter 4 contains provisions for the establishment of corporations for the specific purpose of protecting
and assisting crime victims. According to this chapter, in order to set up such corporations, the fulfillment
of several requirements and registration with the Ministry of Justice are necessary. The registeredcorporations can be supported by subsidies from central and local governments but, in exchange, they must
accept certain levels of responsibility and supervision from the government. Crime Victim Support Centers,
which have already been established, may register themselves pursuant to this chapter and can receive a
subsidy. Currently, 57 Crime Victim Support Centers (CVSC) are registered throughout the country. These
centres actively provide a variety of services. In September 2008, the Korean Crime Victim Supporting
Association (KCVA) was also established.
IV. CURRENT SITUATION AND ISSUES OF MEASURES FOR VICTIMS OF CRIME AT EACH
STAGE OF THE CRIMINAL JUSTICE PROCESS
Except for the general measures for victims of crime in the criminal justice process (e.g., complaint,
measures of objection to non-prosecution, and the right to testify in court), special measures were initiallydeveloped for groups of victims in certain categories of crime and then applied to general victims. This
chapter reviews mainly general measures for victims of crime in criminal proceedings, and also refers
partially to special support systems for: (1) victims of specific violent crimes,4 sexual crimes,5 and domestic
4 A victim or eyewitness involved in specific violent crimes such as homicide and robbery may receive personal safetymeasures (§7 of the Act on Special Cases concerning the Punishment of Specific Violent Crimes ) and his or her identity is also
protected from public disclosure (§8).
5 For victims of sexual crimes, personal safety measures (§20), prohibition of divulgence of identity and the privacy of thevictim (§21), and assistance by a counselling centre and protective facilities (Chapter 3) are provided according to the Act on
the Punishment of Sexual Crimes and Protection of Victims Thereof . Moreover, the following special provisions are includedin the Act:a) taking and keeping of videos, etc. (§21-2);b) presence of persons having a reliable relationship with the victim during the questioning of the victim as a witness;c) questioning of a witness by means of video and relay devices (§§22-4);d) closing of the trial to the public (§22); ande) getting professional opinions from experts such as a psychiatrist about the mental and psychological state of a victim
and his or her statement (§22-2).

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violence;6 (2) victims as informants of specific crimes;7 (3) victims of sexual trafficking;8 and (4) juvenile
victims of sexual exploitation and maltreatment.
Table 2: Measures for Victims of Crime in Criminal Proceedings
CPA
Presence of persons having a reliable relationship

SCPSVC§163-2
§221

PSCPV

SCPCD

§22-3

Taking and keeping of videos§165-2

Notice to victim§259-2

Seeking professional opinions§294

Victim statement§294-2

Trial and witness not to open to public§294-3

§10

§15
§22-2
§33
§22

§32

§11

§9

§7, §11§294-4

Guardian§6

Emergent and temporary measures§29

Personal safety measures

§7

§20

Protection from publication, etc.

§8

§20

§18

§21

§18

Prohibition of divulgence of identity and privacy

§6

§22-4

Identity management
Inspection and copying of record

PAAST
§8

§21-2

Video link

PISCA

§13

§6

§8

§6

Act on Special Cases concerning the Punishment of Specific Violent Crimes (SCPSVC )Act on the Punishment of Sexual Crimes and Protection of Victims Thereof (PSCPV )Act on Special Cases concerning the Punishment , etc . of Crimes of Domestic Violence . (SCPCD )Protection of Informants , etc . of Specific Crime Act (PISCA )Act on the Punishment of Acts of Arranging Sexual Traffic (PAAST )6 For the victims of domestic violence, emergency measures such as evacuation and denial of access (§ 29), a victim’s right tomake a statement (§33), the compensation order (§ 57), and the closing of the trial to the public (§32) are available according
to the Act on Special Cases concerning the Punishment, etc. of Crimes of Domestic Violence . Furthermore, assistance bya counselling centre and protective facilities are available according to the Act on the Prevention of Domestic Violence andProtection of Victims.
7 For the informant of specific violent crimes, narcotics crimes and organized crimes, a ‘criminal case guardian’ can beappointed to support the informant during the investigation and trial process (§6) and personal safety measures can be taken(§13) under the Protection of Informants, etc. of Specific Crime Act.
8 For the victims of sexual trafficking, such as persons who are coerced to be engaged in sexual activities by means ofdeception, force or other similar means, the presence of a person having reliable relation with the victim (§8), closing of thetrial to the public (§9), and assistance by a counselling centre and protective facilities are available according to the Act on the
Punishment of Acts of Arranging Sexual Traffic .

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A. Investigation Stage
1. Complaint
Since private prosecution is not allowed in the Korean criminal justice system, victims of crime can only
report their damages from the crime or file a complaint against the alleged criminal offenders. The complaintis defined as a victim’s formal expression of reporting the alleged offenders’ criminal behaviour to theinvestigation agency and demanding the punishment of the offenders (CPA §223). The complaint can be filed
either in written or oral statements (CPA §237). On the death of the victim, his or her spouse, any of his or
her lineal relatives, or his or her siblings may file a complaint, if such complaint is not against the expressed
intent of the demised victim (CPA §225).
According to the Criminal Procedure Act , as for general offences, victims shall not file a complaint against
his or her spouse’s lineal ascendants (CPA §224). As for the offences, prosecution of which are subject tovictims’ complaints, victims must file a complaint within the period of six months from the date on which
the identity of the offenders becomes known to the victims (CPA §230①). However, especially as for thesexual crimes and domestic violence cases, victims can file a complaint against her or her spouse’s lineal
ascendants, because these types of crimes are often committed by persons in special relationships such as
family or relatives (Act on the Punishment of Sexual Crimes and Protection of Victims Thereo f §18, Act
on Special Cases concerning the Punishment , etc . of Crimes of Domestic Violence §6②). Furthermore,because victims of sexual crimes frequently hesitate to file a complaint, the statute allows a one year period
for filing a complaint in these cases. In other words, as for the sexual offences, victims must file a complaint
within a period of one year from the date on which the identity of the offenders becomes known to thevictims (Act on the Punishment of Sexual Crimes and Protection of Victims Thereof §19).
2. Ensuring Victims’ Safety and Privacy
The following are systems for ensuring victims’ safety and privacy:
1. Permitting the presence of persons with whom the victim has certain reliable relationships;
2. Personal safety measures such as prohibition of access by the offender;
3. Intentional omission of victims’ identity in written records;
4. Taking and keeping of videos;
5. Preparing a friendly environment for investigation;
6. Limiting the number of investigations;
7. Prohibition on divulging victims’ identity and privacy.
The first measure is applied to victims in general, but the others are applied to specific victims.
Permitting the presence of persons with whom the victim has certain reliable relationships is a measureintended to minimize the psychological burden of victims during criminal proceedings. This measure wasinitially applied to the victims of sexual crimes, but its application boundaries were extended to victims ingeneral in the Revised Criminal Procedure Act on 1 June 2007. A prosecutor or a judicial police officer may,
if deemed that the victim is likely to feel severe uneasiness or tension in light of his or her age, physical andmental state, or any other circumstances, allow a person who has a reliable relationship with the victim tosit in company with the victim, ex officio or upon a motion of the victim or his or her legal representative(CPA §221③, §163-2①). If a victim of a crime is less than 13 years of age, or incompetent to discern rightfrom wrong or make a decision due to physical or mental disability, a prosecutor or a judicial police officer
shall allow a person who has a reliable relationship with the victim to sit in company with the victim, unlesssuch company is likely to cause trouble in the proceeding or there is any inevitable reason otherwise (CPA
§230①), §163-2②).
In addition, since 31 August 2005, the police have established One-stop Support Centers throughout
the country in collaboration with police hospitals and hospitals annexed to universities. The One-stop
Support Centers provide 24-hour-services in medical support, consultation, legal assistance to victims ofsexual crimes, school violence, domestic violence, and sexual trafficking. The CARE (Crisis-Intervention,
Assistance & Response) team, composed of key agencies trained for psychiatric counselling, was alsoestablished. The CARE team provides support services to victims of violent crimes immediately after
the occurrence of the crimes. Lastly, the prosecutors’ offices and the police set up special video recording
investigation rooms in order to protect victims’ privacy.

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3. Provision of Information for Victims of Crime
In the process of investigation, the police provide information to victims about the general overview
of the criminal justice procedure and available measures of assistance (Regulation on Crime Investigation§203). The police also inform victims about the process of the case and the disposition of the case. In orderto protect the privacy of victims, the notice of such information is offered to victims in any communications
mode that the victims request (e.g., oral statement, telephone communication, surface mail, e-mail, cell
phone text message) (Regulation on Crime Investigation §204).
The prosecutors also should send interim notice to the victim if they (the prosecutors) fail to dispose of
the complaint and accusations within three months from the date on which the case is filed, or if they fail totransmit the cases taken under direct cognizance within three months from the date on which the cases are
cognized by the prosecutors (Ordinance on the Interim Notice in Case of Complaint and Accusation of the
SPO, No. 427 adopted February 1, 1981 §3③). Prosecutors may deliver this notice in written statements
or cell phone text message (Ordinance of the SPO, No.427 §4). In addition, victims of crime have a rightto inspect and make copies of some official documents such as investigation records (Ordinance on the
Inspection and Copy of the Case Records of the SPO, No.427 adopted 9 January 2008).

B. Prosecution Stage
1. Measures of Objection to Non-prosecution(i ) Appeal and Repeal
Any complainant or accuser who is dissatisfied with the non-prosecution disposition given by aprosecutor may file an appeal with the chief prosecutor of the competent High Public Prosecutors’ Office(Prosecutors ’ Office Act §10①). Any appellant (excluding those who are eligible to apply for a rulingunder Article 260 of the Criminal Procedure Act ) may, if he or she is dissatisfied with a disposition of hisor her appeal, re-appeal to the Prosecutor General (Prosecutors ’ Office Act §10(2)). According to theserules, victims who file a complaint or make an accusation against the alleged offenders, or victims who
officially present their willingness to punish the alleged offenders following Paragraph 4 of Article 27 of theRegulation on the Prosecution Case Work, can appeal and re-appeal within the criminal justice procedure.
(ii ) Petition for Adjudication
A person who lodged a complaint with a right to such complaint (including those who filed an accusationof crimes under Article 123 (abuse of authority); 124 (unlawful arrest and unlawful confinement); 125(violence and cruel acts) of the Criminal Act)) may, if he or she receives a notice of non-prosecution fromthe public prosecutor, file a petition for adjudication, to find whether such disposition is properly made,with the High Court having jurisdiction over the District Public Prosecutors’ Office to which the publicprosecutor belongs (CPA §260①). The petition for adjudication shall be filed subsequent to an appeal (CPA
§260②). Since the Korean criminal justice system is founded on both principles of exclusive indictment by
public prosecutors and principles of discretionary indictment, the victim’s petition for adjudication is themost important method of controlling prosecutors’ unfair exercise of their exclusive indictment power. The
victim’s petition for adjudication is also very meaningful in terms of guaranteeing the victim’s participationin the process of initiating public prosecutions.
In 2007, the revision of Criminal Procedure Act allowed victims of all sorts of crimes to file the petition
for adjudication. As a result, the relationship between petition for adjudication, re-appeal, and constitutional
complaint has become controversial. Some professionals argue that all victims can only file the petition
for adjudication and cannot re-appeal to the Prosecutor General. They also claim that victims cannot filea constitutional complaint. The others argue that victims can choose either to petition for adjudication or
re-appeal to the Prosecutor General by themselves. Paragraph 3 of Article 10 of the Prosecutors ’ Office
Act states that the person who is eligible to apply for the re-appeal is any appellant but excludes those
who are eligible to apply for a petition for adjudication pursuant to Article 260 of the Criminal Procedure
Act . Thus, many can interpret the statute to mean that victims can only file a petition for adjudication.
However, I believe that the opportunity to select an appropriate method of appeal should be given to victims.
Consequently, I would argue that victims should be allowed to choose from among petitions for adjudication,
re-appeal, or even constitutional complaint, as a way of objecting to a prosecutor’s decision.
(iii ) Constitutional Complaint
Any person who claims that his or her basic right, guaranteed by the Constitution, has been violated by
an exercise or non-exercise of governmental power may file a constitutional complaint to the Constitutional

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Court, except in the judgments of ordinary courts (Constitutional Court Act §68①). Therefore, the following
group of victims can file a constitutional complaint: (1) victims who do not file a complaint or make anaccusation of alleged offenders; (2) victims who make an accusation against offenders but are not eligible
to apply for the petition for adjudication; and, (3) victims who officially present their willingness to punish
the offenders. However, these victims are eligible only after they apply for other relief processes provided
in other laws. In other words, no one may file a constitutional complaint without having exhausted allother processes (Constitutional Court Act §68①). The eligibility of other victims who can file a petition for
adjudication to apply a constitutional relief has already been discussed above.
2. Criminal Mediation between Victim and Offender
Criminal mediation is a system of calling for reconciliation between victims of crime and offenders, withthe assistance of a neutral third-party or trained mediator. Criminal mediation is a relatively new approach
to victims of crime and offenders and can be viewed as an alternative to the informal arbitration practices
which frequently occur in real criminal justice practice.
In April 2006, by way of example, criminal mediation was implemented in Seoul Southern District
Prosecutors’ Office and three other local prosecutors’ offices. From August 2007, all prosecutors’ offices
throughout Korea have provided criminal mediation services. Initially, the Criminal Mediation Committee
within the Crime Victim Support Center was in charge of criminal mediation. However, some professionals
raised questions about the fairness of the results of criminal mediation, since criminal mediation was
conducted under the guidance of Victim Support Centers. Therefore, on 10 November 2009, the authority toprovide criminal mediation services was given to the District Prosecutors’ Offices.
The types of crimes eligible for criminal mediation are virtually limitless, but the representative ones
are: (1) property crimes occurring from disputes based on cash transactions between victims and offenders,such as fraud, embezzlement, and breach of trust; and (2) crimes related to private disputes where victims
file complaints, such as libel, medical disputes, and employers’ delayed payment of wages.
Prosecutors decide whether a case can be referred to criminal mediation by considering the seriousnessof the alleged offences and the level of suspicion given to the alleged offenders. Only when both parties- victims and offenders - agree to participate in criminal mediation, can prosecutors transfer the cases
to criminal mediation (Ordinance on the Practice of Criminal Mediation of the SPO, No.427 adopted 30
October 2009 §2). Once a case is referred to criminal mediation, three mediators are selected from among
the members of the criminal medication committee. The actual practice of criminal mediation is conductedon the mediation date with the presence of both parties. Once both parties reach an agreement through themediation process, a written decision of the mediation is signed, and the outcome of mediation is informed
to the prosecutor who referred the case to criminal mediation. The prosecutor who received the notice ofcriminal mediation can make a final indictment decision. Even if a victim withdraws his or her complaint asa result of the criminal mediation, the prosecutor can still indict an offender if he or she finds a reasonable
evidence to indict. Even in this case, the prosecutor can reduce the degree of penalty against the offender orsuspend the indictment by considering the results of the criminal mediation.
Example 1

In November 2006, while complainant A was playing an instrument on a tavern stage, B stepped onto
the stage, provoked a quarrel, threw the instrument down, and destroyed the instrument.
As a result of criminal mediation, B agreed to pay A compensation, and A withdrew his complaint.
Example 2

Three brothers - C, D, and E - came into conflict with each other about an inheritance of 58 million
won. C and D filed a complaint against E and charged him with fraud and embezzlement.
The three brothers reconciled with each other within the criminal mediation procedure. They evencried when they reached an agreement. They decided to divide both property taxes and rents. The threebrothers also agreed that E would continue to manage the contested building and that when the building
was sold, they would share the proceeds from the sale.

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In 2007, 7,862 cases were referred to criminal mediation and 7,212 cases were completed. Among the7,212 cases, 3,680 cases were settled, a 51.0% success rate. In 2008, 11,486 cases were referred to criminal
mediation, and 10,925 cases were completed. Among the 10,925 cases, 5,632 cases were settled, a 51.6%
success rate. From January to July 2009, 8,282 cases were referred to criminal mediation, and 6,614 cases
were completed. Of the 6,614 cases, 3,660 cases were settled, representing a 55.3% success rate.
Table 3: Statistics for Criminal Mediation
Number of cases
referred

Number of cases
completed

Number of cases
settled

Period: fromJanuary to
December 2008

11,496

7,212

5,632

571

51.6

Period: fromJanuary to
July 2009

8,382

6,614

3,660

1,765

55.3

Number of cases Successful mediationin processrate (%)

Criminal mediation is a system developed by the application of restorative justice principles within thecriminal phase of prosecution. Some criticize the criminal mediation programme by pointing out its lackof full consideration of restorative justice principles in establishing procedures for criminal mediation.
However, the criminal mediation system is generally graded very positively because it provides a timely
opportunity to restore the damages caused by the crime. The criminal mediation system also enhances
the protection of offenders’ human rights by putting offenders outside of investigation institutions, whileat the same time contributing to both the reintegration of offenders into society and the prevention ofrecidivism. Finally, criminal mediation empowers the community members by promoting private autonomy
in resolving criminal cases and, eventually, reducing the number of cases burdening our investigation andjudicial institutions. Consequently, the investigation institutions can put more resources towards othercriminal cases. As a result, the Ministry of Justice presented the Revised Crime Victim Protection Act,
which includes specific procedures for criminal mediation. This Act is currently under the deliberation of the
National Assembly.
3. Provision of Information for Victims of Crime
If, in a case in which a complaint or accusation has been lodged, the public prosecutor has decided toor not to institute prosecution, withdrawn prosecution or sent the case to a public prosecutor of anotherpublic prosecutor’s office, the public prosecutor shall inform the complaint or accuser in writing, withinseven days after such disposition has been made (CPA §258①). In addition, if a disposition not to institute a
public prosecution has been made, the public prosecutor shall, upon request of the complainant or accuser,
promptly inform them of the reason thereof in writing within seven days (CPA §259). A public prosecutor
shall, promptly upon receiving an application from a victim of a crime or his or her legal representative(including the victim’s spouse, lineal relative, or sibling, if the victim is dead), notify the applicant of whether
the indictment has been instituted for the crime, the time and place of trial, the result of the trial, and thefacts about detention, such as whether the suspect or the defendant is detained or released (CPA §259-2).
Enforcement Decree of the Crime Victims Protection Act requires notice to the applicant of the result ofcase dispositions, such as the prosecutor’s decision of indictment, non-prosecution, stay of indictment, stayby person for reference, and transferring the case (Enforcement Decree §2①i). The Prosecutors’ Offices
ensured the process of delivering this notice to victims by enacting the Ordinance on the Protection of, and
the Assistance to, the Victims of Crime of SPO, No. 432 on 1 May 2008.

C. Trial Stage
1. Victim’s Right to Express Opinion
The right to express opinion or make a statement allows the victim an opportunity to express an opinion
in the court as a witness if he or she requests (CPA §294-2). The previous system of the victim’s right toexpress opinions in court was not efficient in that there were many grounds on which such right could be
rejected. Moreover, while courts allow victims the opportunity to address the issue of proving an alleged
criminal act, there have been few cases in the past where victims were allowed to express their opinions
about the issue of the penalties handed down by the court.
86THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

In order to increase the application of this right, the Revised Criminal Procedure Act extends theboundary of persons who can exercise this right, from the victim to his or her legal representative (including
the victim’s spouse, lineal relative, or sibling, if the victim is dead). In case the victim has already given a
sufficient statement in the investigation process, he or she can still request this right and make a statement
in court, whereas his or her request to exercise this right was rejected in the former system. Furthermore,
the category of issues upon which the victim can express opinions becomes clear - statements on the
degree and result of damage, opinions concerning punishment of the defendant, and other matters relating
to the case at bar (CPA §294-2). Despite these revisions, the victim still remains a witness and can not bea direct party to the criminal procedure. As a result, it is hard to conclude that the victim’s right to express
an opinion or make a statement is a sufficient application of the Constitutional spirit to the criminal justiceprocess.
2. Ensuring Victim’s Safety and Privacy as a Witness(i ) Trial not Open to the Public
The court may, when it examines a victim of crime as a witness, decide by a ruling to proceed theexamination behind closed doors, if it is deemed necessary for the victim’s privacy and personal safety, upona request from the victim or his or her legal representative or the public prosecutor (CPA §294-3①).
(ii ) Witness Protection Program for Informants , etc . of Specific Crime
In the case where the witness is the victim of or is an informant of a specific group of criminals, andwhere there is apprehension that a witness or his or her relatives may be retaliated against, matters relating
to the identity of the witness can be concealed in the process of confirmation of the witness’s identity,
witness oath, and the witness’s court testimony (Protection of Informants , etc . of Specific Crimes Act§11②,③). A public prosecutor or the head of the competent police station may implement personal safetymeasures for the witness, such as a police officer’s escort for the witness when coming to and returningfrom the court or the police station (Protectio n of Informants , etc . of Specific Crimes Act §13).
Example 3

In May 2005, A was summoned as a witness in a case where the defendants were the members ofa very organized street gang. Since there was considerable concern for A’s safety (i.e., retaliation fromother members of the gang), a staff member of the prosecutor’s office, assisted by a staff member and a
volunteer of the Victim Support Center, escorted A to court. This escort service was provided to A fromhis home to the court and back home again.
3. Minimizing the Burden on Victims in Testifying as a Witness(i ) Presence of Persons having a Reliable RelationshipThe court may, if it deems that the victim9 as a witness is likely to feel severe uneasiness or tension inlight of the age of the victim, his or her physical and mental state, or any other circumstances, allow a person
who has a reliable relationship with the victim to sit in company with the victim, ex officio or upon a motionof the victim, his or her legal representative, or the prosecutor (CPA §163-2①). If a victim of a crime isless than 13 years of age, or incompetent to discern right from wrong or make a decision due to his or her
physical or mental disability, a prosecutor or a judicial police officer shall allow a person who has a reliable
relationship with the victim to sit in company with the victim, unless such company is likely to cause a
trouble in the proceeding or there is any unavoidable reason otherwise (CPA §163-2 ②).
(ii ) Interrogation of Witness through Video or Other Transmission System
A court may, if deemed proper when it examines any of the following persons as witness, examine theperson through a video or other transmission system or install a partitioning facility to place the person
behind the facility for examination after hearing the opinions of the public prosecutor and the defendant or
his or her defence counsel:

9 And also for the victims of sexual violence (on application), victims of sexual trafficking (on application as well as ex officio ),victims of elder and child abuse (on application pursuant to Article 39 of the Welfare of the Aged Act , introduced by anamendment on 29 January 2004, and Article 28 of the Child Welfare Act ), presence of persons having a reliable relationshipwith the victim is possible during the investigation or questioning in court as a witness.

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RESOURCE MATERIAL SERIES No.81( a) a victim of a crime under any provision of subparagraphs 1 through 3 of Article 40 of the Child WelfareAct;( b) a juvenile or a victim who shall be protected from a crime under any provision of Articles 6 through 10of the Act on the Prevention of Juveniles from Sexual Abuse; and(c) a person who is deemed likely to seriously lose peace of mind due to psychological burdens when the
person testifies in confrontation with a defendant or any other person, in light of the nature of the crime
involved, the age of the witness, his or her physical and mental state, the relationship with the defendant,
or any other circumstances (CPA §165-2).
The interrogation of a witness through video or other transmission system is provided for in legislation
with the goal of preventing the secondary victimization of the victim and guaranteeing the defendant’s
right to cross-examination. This technology allows the interrogation to be implemented. This type ofinterrogation was already available to the victims of sexual crimes, but has now been extended to thevictims of all other crimes. Some criticize this type of interrogation by pointing out that the defendantcannot exercise his or her right to defend him or herself fully in this interrogation. However, even though
the defendant cannot confront the witness directly, the defendant still can exercise his or her right tocross-examination in this interrogation. Therefore, I believe that this type of interrogation does not violate
defendants’ rights in criminal proceedings.
(iii ) Submission of Evidence of Video -recorded ProductIn the event that the victim of a sexual crime is under the age of 16 or has feeble ability in discerning
matters or making decisions due to physical or mental impediments, the contents of the statements madeby the victim and the process of investigation shall be videotaped and kept with the consent of the victim. In
the event that the statement made by the victim, which is recorded in the videotape, is authenticated for its
formation by a statement of the victim or any person who was present in the process of investigation and hasa reliable relationship, on the date when a trial is prepared to be held or a trial is held, such videotape may bemade evidence (Act on the Punishment of Sexual Crimes and Protection of Victims Thereof . §21-3③, ④).
In the present criminal procedure, the video-recorded product does not have the independent probativevalue of evidence, but can be employed as a supporting document that proves the authenticity of theformation of a protocol.
4. Provision Information for Victims of Crime
A public prosecutor shall, promptly upon receiving an application from a victim of a crime or his or her
legal representative (including the victim’s spouse, lineal relative, or sibling, if the victim is dead), notify theapplicant of whether the indictment has been instituted for the crime, the time and place of trial, the resultof the trial, and facts about detention, such as whether the suspect or the defendant is detained or released(CPA §259-2). The matters of which the prosecutor should notify the applicant are: the date of trial, thespecific court where the trial proceeds, main sentencing in the judgment, the date of sentencing, the court’s
finalization of the judgment, and whether the defendant appeals the judgment (Enforcement Decree of the
Crime Victim Protection Act §2①ii).
A victim of a case pending in court (including a victim’s spouse, lineal relative, or sibling, if the victim
is dead or suffers from a severe mental or physical disorder), the legal representative of the victim, or the
spouse, lineal relative, sibling, or attorney at law with the power of attorney granted by the victim or hisor her legal representative, may file an application for inspection or copying the litigation record with thepresiding judge (CPA § 294-4 ①).
5. Compensation Order System
The compensation order system requires that a victim and his or her successor may receive a civil
compensation order for direct physical damages, medical expenses, and solatium that occurred due tothe criminal acts of the accused case, either ex officio or upon application from the victim or his or her
successor, when a conviction is to be declared in a criminal trial procedure of the first instance and second
instance against the crimes such as bodily injury, death resulting from bodily injury, crimes of inflicting
bodily injury and death through negligence, crimes concerning rape and infamous conduct (except sexualintercourse under pretence of marriage), larceny and robbery, fraud and extortion, embezzlement and breach88THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERSof trust, destruction and damage (Act on Special Cases concerning Expedition , etc . of Legal Proceedings§25①). The court may order compensation also for the amount of compensation for damages agreed upon
between the accused and the injured party (Act on Special Cases concerning Expedition , etc . of Legal
Proceedings §25②). An authentic copy of the written conviction wherein a compensation order is finalized
shall have the same effect as an authentic copy of a civil judgment with executive force, with regard to acompulsory execution.
In the future, the compensation order system should be revised by including provisions that a victim
should be informed of the availability of a compensation order and that the indirect costs of the victim ofparticipating in the investigation and the trial may be reimbursed to the victim.
Table 4: Current Data on the Compensation Order System (Judicial Year Book (2000-2008)
SectionManagement

Amount ofCompensation(won)

Request(case)

Year
2000
2001
2002
2003
2004

Total

AcceptReject

1,521
1,726
1,930
3,480
3,151

1,416
1,510
2,226
3,053
3,732

493
391
433
660
756

686
674
418
758
1,550

237
445
1,375
1,635
1,426

34.8
25.9
19.5
21.6
20.3

22,623,778,079
23,284,854,700
37,633,017,681
27,402,781,689
55,621,107,364

2005
2006
2007
2008

3,743
4,258
6,263
4,904

3,279
4,087
5,951
4,824

802
858
1,082
1,075

705
1,963
459
3,363

1,772
1,266
4,410
386

24.5
21.0
18.2
22.3

60,084,592,946
55,437,494,842
94,371,444,688
83,326,196,213

Percentage ofWithdraw, etc. Acceptance(%)

6. Reconciliation in Criminal Proceedings with Regard to Civil Controversy
Where an agreement is reached concerning a civil controversy between the accused and the injured
party in an accused criminal case (limited to a case where a controversy over damage is related to a relevant
accused case), the accused and the injured party may in collaboration apply to the court of the first instanceor the second instance whereas the relevant accused case is pending to have the agreement entered in
the protocol of the trial (Act on Special Cases concerning Expedition , etc . of Legal Proceedings §36①).
When the court in charge of the case records the agreement in the protocol of the trial, it will be given thecompetence of civil procedural execution as like the judicial reconciliation (Act on Special Cases concerning
Expedition , etc . of Legal Proceedings §36⑤).
This system of reconciliation in criminal proceedings with regard to civil controversy looks similar to thecompensation order system. However, from the aspect that the reconciliation system allows the victim toexercise the right to request civil compensation in the criminal justice proceeding, the reconciliation system
goes one step farther than the compensation order system in protecting the victim’s right.
Unfortunately, however, the actual use of this reconciliation system is very low. From 2006 (the timeof enactment) to August 2009, only 75 criminal cases took advantage of this reconciliation system. Several
factors contribute to the low level of the utilization of this system. First of all, this system has not yet
acquired public awareness, thus, many victims and criminal defendants did not understand that they could
use this system at trial. Second, the defendant may prefer not to use this system because the defendant’s
reconciliation with the victim would be understood as an admission of guilt on the merits even before
the end of the criminal trial. Finally, judges may be reluctant to recommend this system. The judge’s
recommendation can be misinterpreted by the defendant as a persistent demand to reconcile with the victim
in exchange for reducing the sentence.
7. Measures for Victims of Crime in the Treatment Proceedings for Juvenile Delinquents
On 21 December 2007, the Juvenile Act was revised, and the major features of this revision were toguarantee the victim’s right to make a statement in the trial of a juvenile protection case and to introduce
the new system of the recommendation of compromise. A judge of the Juvenile Department shall, when

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a victim or his or her legal representative, a counsel, a spouse, a lineal relative, or a sibling apply forstatement of opinion, give the victim an opportunity to state an opinion, etc. on the date of a trial (Juvenile
Act §25-2). A judge of the Juvenile Department may, if deemed necessary for character correction of ajuvenile and protection for a victim, recommend that a juvenile compromise with a victim, such as givecompensation for the victim’s loss or another form of compromise (Juvenile Act §25-3①). In cases wherea juvenile has compromised with a victim according to the recommendation, a judge of the Juvenile
Department may take this into consideration when deciding the protective disposition (Juvenile Act §25-3③).
The system of recommendation of compromise was installed based on the consideration of its efficiency
in protecting victims, as well as the correction of a juvenile through a reconciliation or mediation process
between the victim and the juvenile. However, some criticize this system by asserting that it is not a true
adoption of restorative justice since it can only be recommended in the hearing stage. This system also
compels a juvenile to participate in the compromise procedure.
During a three-month-period starting in July 2008, a conferencing programme (victim-offender mediationand dialogue) was implemented in 10 juvenile cases in order to apply the recommendation of compromisein the investigation stage of juvenile protection cases. This conferencing programme was organizedthrough collaboration between the Seoul Family Court, the Seoul Juvenile Classification Review Board,
the Korean Institute of Criminology, and the Center for Resolution of Conflict in Women Making Peace(WMP). Unfortunately, however, this programme is no longer provided because of the difficulty in selecting
appropriate cases.
Example 4

In March 2008, A (a second-year student of X middle school) and B (a second-year student of Y middle
school) fought each other twice because each criticized the other’s school. B and his friends as a groupbeat A seriously, and B, consequently, was brought into the juvenile court.
A, B, and their parents participated in the above-described conferencing programme, had five-hourconversations, and finally reached an agreement.

D. Execution of Sentence Stage
1. Probationary Supervision(i ) Probationary Supervision Program Considering Victims of Crime
In the process of executing probation orders, community service orders, or attendance service orders ona criminal, some programmes have been implemented in order to enhance the criminal’s accountability to
the victim. For example, in 2005, Seoul Probation and Parole Office developed the victim-offender meeting
programme with the purpose of preventing school violence. The details of services provided by this victimoffender meeting programme are: (1) giving an opportunity to the offender to write a letter to the victim;(2) arranging and facilitating a meeting between the offender, the victim, and their family members; and,(3) inviting the Director of the Association for Victims of School Violence and allowing him or her to givea special lecture to the offenders. In addition, attendance service orders for sex offenders encourage
apologies from offenders to their victims and further attempts by offenders to reconcile with their victims
by informing the offenders of the victims’ feelings during and after the crime. Furthermore, since December
2009, the homes of victims have been included as locations where convicted criminals can complete theircommunity service orders. Thus, criminals visit victims’ houses and do household chores for victims’
families, or renovations such as wallpapering or other tasks.
Example 5

In 2007, victim A, who was the owner of a bar, was knifed by an offender who tried to use a stolen
credit card. The offender was sentenced to four years in prison, while A suffered bodily injury and theafter-effects of the injuries, such as acute respiratory problems. A lived in a small efficiency apartment
with her husband, who could not get a job because of his liver problem, and with her teenage son, who
was mentally handicapped.
In December 2009, the Minister of Justice hung wallpaper in A’s apartment, with offenders, as one wayof completing their community service.

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THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS(ii ) Imposition of Special Matters of Observation Considering Victims of Crime
When the court orders probation by conferring either suspended execution of sentence (Criminal Act§62①) or suspension of sentence on probation (Criminal Act §59①) and the Parole Examination Board
makes a decision on probation or parole, the court and the Parole Examination Board can impose special
matters of observation upon the criminal, i.e., prohibiting his or her access to a victim or certain group ofpeople who would then become the subject of his or her recommission of a similar crime and recoveringdamages occurring from his or her criminal act (Protection and Surveillance , etc . Act . §32③iv,v).This
provision was introduced through the revision of the Protection and Surveillance , etc . Act on 28 May 2009.
This provision provides the basis for intimating the idea of restorative justice in the probation stage.
(iii ) Provision of Information for Victims of Crime
A public prosecutor shall, promptly upon receiving an application from a victim of a crime or his or her
legal representative (including the victim’s spouse, lineal relative, or sibling, if the victim is dead), notify
the applicant of of whether the indictment has been instituted for the crime, the time and place of trial, theresult of trial, and the facts about detention, such as whether the suspect or the defendant is detained orreleased (CPA §259-2). In particular, regarding the process of executing probation, the prosecutor should
notify a victim about the specific location of the Probation and Parole Office, the commencement andexpiration date of the defendant’s probation orders, community service orders, or attendance service orders,the date of the suspension of the defendant’s parole, and the date of the withdrawal of suspension of the
defendant’s parole (Enforcement Decree of the Crime Victim Protection Act §2①iv). The Crime Prevention
Policy Bureau of the Ministry of Justice developed the “Specific Report for Supporting Crime Victims in
Relation to Probationers and Parolees” in January 2008 and has provided information to victims.
2. Correctional Service(i ) Edification Program Considering Victims of Crime
The Ministry of Justice has implemented the Edification Program for inmates in order to educate inmates
about the impact of crime on a victim’s life or the victim’s emotions after the crime. In February 2006, theMinistry of Justice announced “The Ministry of Justice’s Strategic Plan for Change — Promise for Opening
Hope” and officially declared its step-by-step plan for implementing restorative justice programmes. Asa short-term plan, the Ministry of Justice will establish procedures for reconciliation meetings and letter
mailing, which initially applies to minor offenders such as offenders of plain acts of violence or traffic
offences and offenders inflicting bodily injury on lineal ascendants and will be gradually extended toother offenders. As a long-term goal, the Ministry of Justice will examine the possibility of adopting thedefendant’s compromise with the victim or the defendant’s compensation to the victim as important factors
to consider in making decisions on the defendant’s leave or parole. The Ministry of Justice will also review
ways of sending a part of the defendant’s in-prison wages to the victim each month.
In practice, the Seoul Regional Correction Headquarters actually implemented a programme of sending
an apology letter to victims in 2007. Unfortunately, only a few defendants participated in this programme,
which became an initial obstruction in implementing the Strategic Plan for Changes. As a result, theStrategic Plan has not been implemented as initially planned.
(ii ) Consideration of the Opinion of Victims of Crime in Parole
The warden of the correctional institution shall investigate whether the victim has recovered or not
before reviewing parole (Enforcement Rule of the Act on Execution of the Sentence and Treatment of
Prisoners §246). The warden of the correctional institution must take into account the feelings of thevictims of crime, the possibility that the criminal will commit a retaliatory crime when released, and whether
conciliation has been made or not, etc. (Enforcement Rule of the Act on Execution of the Sentence andTreatment of Prisoners §247).
(iii ) Provision of Information for Victims of Crime
A public prosecutor shall, promptly upon receiving an application from a victim of a crime or his or her
legal representative (including the victim’s spouse, lineal relative, or sibling, if the victim is dead), notify
the applicant of the facts about detention, such as whether the suspect or the defendant is detained orreleased (CPA §259-2). In regard to the process of executing the sentence of the defendant, a prosecutor
should inform the victim of the defendant’s parole, release, transfer, death, or flight (Enforcement Decreeof the Crime Victim Protection Act §2①iii). The Correctional Service of the Ministry of Justice published91

RESOURCE MATERIAL SERIES No.81“Instructions for Providing the Inmate Information to the Crime Victims” in March 2007 and has actuallyprovided information to crime victims.

V. OTHER MEASURES FOR VICTIMS OF CRIME
A. Crime Victim Aid
According to the Crime Victim Aid Act , the bereaved family of a person who has died, or a person who
suffers a serious disability due to a criminal act injuring human life or body, can receive a limited amount ofcriminal injury aid money. In other words, if a person who suffers a criminal injury cannot be compensatedfor the whole or part of the injury due to an obscurity or insolvency of the offender, or a person becomes a
victim in connection with furnishing any clue to the criminal investigation, such as complaint, accusation,etc., as well as any statement, evidence or presentation of materials, for an investigation or judgment of hisor her or another person’s criminal case, the State shall pay criminal injury aid money to the victim or his or
her bereaved family (Crime Victim Aid Act §3①).
However, where the victim and offender are related to each other (including a de facto marital
relationship), where the victim provokes a criminal act, or the occurrence of the criminal injury is
attributable to the victim, or even where it is deemed proper in a socially-accepted view, the whole orpart of criminal injury aid money may not be paid (Crime Victim Aid Act §6). The range of criminal injury
that can be applied is limited to death and serious disability, which is graded 1 through 6. In the case of adeath, 30,000,000 won (about USD 24,000), 20,000,000 won, or 15,000,000 won of the criminal injury aid
money is given to the family members of the dead victim. The exact amount is based on considerations
regarding the victim’s family, such as the number of surviving family members and their respective ages.
30,000,000 won is paid to the victim in the case of a grade 1 injury, and 6,000,000 won in the case of a grade
6 injury (Enforcement Decree of the Crime Victim Aid A ct §12, §13). Any person who desires to receive
criminal injury aid money shall apply for it within two years after the occurrence of the criminal injury is
known, or five years after the criminal injury occurs (Crime Victim Aid Act §12). The Criminal Injury Aid
Council established in the respective district public prosecutors’ office shall deliberate and decide mattersconcerning payment of criminal injury aid money (Crime Victim Aid Act §11).
On 20 April 2009, the amount of criminal injury aid money was raised and the range of disability grades
was extended for the current system of the criminal injury aid. However, since the application of thecriminal injury aid is still limited, it is necessary that the amount should be increased, and also those who
suffer disability from grade 7 to grade 13 should also be eligible for criminal injury aid money.

B. Other Financial Assistance
1. Bounty for Reporting Crimes
The informant (and his or her family) of particular crimes such as violent or narcotics crimes who are infear of retaliation, suffer from financial loss, or pay for moving expenses or a job change, may get a bountyof up to 1 million won, according to Article 14 of the Protection of Informants, etc . of Specific Crimes Act .
A person who has tipped any investigation agency off about any crimes of trafficking of women and girls
for sexual purposes may also be paid a bounty, according to Article 28 of the Act on Punishment of Acts of
Arranging Sexual Traffic .
2. Compensation for Traffic Accidents Caused by Uninsured Cars or Hit-and-Run Accidents
Victims of traffic accidents which were caused by unknown drivers, uninsured cars, stolen cars or drivers
without licenses who have no other compensation, are entitled to 80 million won in a case of death, 15
million won in case of injury and 80 million won for the aftermath, according to Article 5 of the Guaranteeof Automobile Accident Compensation Act . When recipients under the Basic Livelihood Security Act sufferfrom severe complications and disability caused by automobile accidents, the Victims and Family Support
Project of the Korea Transportation Safety Authority provides assistance for rehabilitation, living expenses,
scholarship, and dependents.
3. Compensation Money for a Person Killed or Wounded for a Righteous Cause
A person who is killed or injured while trying to save another person’s life, body or property fromimminent danger may be paid a similar amount of compensation as that which would have been given to a92

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person for distinguished services to the State under the Honorable Treatment of Persons Wounded or Killed
for a Righteous Cause Act .
4. Assistance from the Korean Legal Aid Corporation
The Korean Legal Aid Corporation has been providing victims of domestic violence, sexual violenceand sexual trafficking with legal aid such as legal representation, free advocacy and legal counselling since
January 2003. By an amendment to the Legal Aid Act on 29 March 2007, the Corporation may legally protect
and support victims of crime in order to properly guarantee the rights of the victims of crime and help themspeedily rescover from the damage suffered.
5. Other Assistance
Besides the assistance listed above, there is a financial support system for the victims of sexual crimes
and domestic violence cases for their medical treatments. Emergency assistance can also be provided to
the victims of sexual crimes, domestic violence, and cruel treatment if the victims are temporarily unable toearn a living due to the result of the crime.

C. Civil Assistance
The Crime Victim Support Center (CVSC) was created on 5 September 2003 in Gimcheon and Gumi.
It was the first civic organization from a local community to support the recovery of crime victims from
criminal damages and to help them to live normal everyday lives as survivors. From the establishment ofGimcheon and Gumi CVSC until December 2007, 57 CVSCs were established throughout the country, one
in every district of the Prosecutor’s Office. These CVSCs actively provide their services to crime victims.
In addition, on 3 September 2008, the Nationwide Association for the Korean Crime Victim Support wasestablished.
In order to differentiate themselves from the sexual violence clinics or domestic violence clinic services,
the CVSCs have focused on direct legal assistance to the victims and spontaneous medical support
immediately after the incident, rather than providing mere counselling. The sorts of services provided by
the CVSCs can be divided into several categories. First, they provide consultation services via telephone,Internet, and face-to-face conversations. Second, groups of services can be identified as direct assistance tovictims, including:
1. Crisis intervention immediately after the occurrence of a crime;
2. Provision of information concerning a criminal proceedings; and3. Accompaniment to the investigation institutions and the court.
The examples of crisis intervention immediately after the occurrence of a crime are as follows:
1. Assisting a victim with calming down at the actual scene of a crime;
2. Cleaning up a crime scene;10
3. Helping to reset a victim’s everyday life, such as taking care of the victim’s children;
4. Finding a proper hospital in case a victim needs emergency treatments;
5. Accompanying a victim to a hospital; and6. Searching for ways to secure a victim’s safety when retaliation or re-victimization can possibly occur.
Third, the CVSCs provide medical care services in collaboration with certain hospitals in the surroundingarea. Fourth, the CVSCs also support victims financially by giving them living subsidies. Fifth, in addition
to these individual support services, CVSCs promote secondary services for crime victims, too. CVSCs
conduct studies on crime victims in order to both ensure the substantiality of victim support systems andto foster public awareness of the necessity of the victim support systems. CVSCs also develop education
programmes to cultivate human resources in crime victim support and to enhance their qualifications.
CVSCs actively inform communities about the availability of their services. Finally, CVSCs do not limit the

10 The Korean Central Victim Support Center, established in Seoul on 1 December 2004, aims to prevent re-victimization.

Re-victimization can be prevented partially by cleaning the scene of the crime. Thus, the Center has provided cleaning
services at the scene of a murder or other violent crimes through co-operation with cleaning business companies.

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boundary of their services to Korean citizens, but also provide their services to foreigners.11
Despite such vigorous activities, the CVSCs still have difficulties in obtaining appropriate funding.
Furthermore, critics of CVSCs cite a lack of distinguishable or special skills in their personnel. CVSCs also
suffer from insufficient advertising of their services. A third challenge is the low level of co-operation the
CVSCs receive from other institutions. Thus, ways of improving the CVSCs’ quality of services must be
addressed in order to respond to these criticisms.
Example 6

In the case of serial killing that happened in the southwestern area of Kyunggi Province, the Ansan
CVSC conducted individual face-to-face interviews with bereaved family members. The Ansan CVSC
provided eight bereaved family members a total of 53,000,000 won for their living expenses, provided free
medical services (e.g., psychiatric treatment) to 16 victims who had suffered serious emotional problems,and provided legal assistance. In total, the victims received a 1,300,000,000 won compensation order fromthe court.
Example 7

A, a 31-year-old female, was knifed by the robber B, who originally entered into A’s apartment
disguised as a prospective tenant. Because of this incident, A sustained a 7.5-centimeter scar to her face,
but the cost of cosmetic surgery was prohibitive. The Korean Central Victim Support Center placed
her with a specialist in plastic surgery, who is a member of the medical support team, who performed
successful cosmetic surgery on her face at no cost.
Table 6: Activities of the CVSCs
Consultation

Financial& Medical
Assistance

Personal
Protection

Publicity& Education

Scene
Assistance

Total

2008

19,260

3,400

277

3,558

40

27,5352009 (Jan.-Aug.)

15,481

2,274

201

1,741

30

19,727Comparison withthat of same
period of 2008

+7.4%

There are two organizational features of the Victim Support Centers in Korea. The most significant one
is that they work with a direct connection with the Prosecutor’s Office. The Centers were established with
the initial support of each District Prosecutor’s Office and are supervised by the Ministry of Justice. Second,
the Centers have maintained a very close co-operative relationship with the Crime Prevention Committee
in the establishment, organization, and actual provision of services. This alliance is desirable because therelationship between crime prevention and victim support is like that of the front and back wheels of acar. However, it is necessary for the victim support centers to develop and maintain their own respective
working scope before they work closely with the Crime Prevention Committee.

11 The Western Seoul Victim Support Center, established on 10 December 2004, was successful on this point. For example,

two Thais who came to Korea after being defrauded by an employment agency received assistance in this Center. In
co-operation with the victim assistance office of the Western Seoul Prosecutors’ Office, the Center helped them get
documents from Thailand in order to file a complaint with the investigation office. The Center then provided them financial
support for accommodation and travel.

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VI. CHALLENGES OF MEASURES FOR VICTIMS OF CRIME
A. Preparation and Enforcement of the Substantial Basic Plan for Protection of, and Assistance to,Victims of Crime
I believe that the measures for victims of crime must consist of an overall provision of services relevant
to victims’ recovery from the crime. Therefore, the support to victims should not be limited to theboundaries of the criminal justice policy, but should include aspects of social welfare - providing various
social welfare services for the victims’ residence, health, education, and employment, etc. For these reasons,
I would argue that for effective assistance to victims, it is necessary to draw the government’s special
attention to this issue and to develop an integrated policy for victim support.
In 2007, the Korean government set up and implemented the Basic Plan for Protection of, and Assistanceto, Victims of Crime (2007-2011). Up to now, it was expected that this plan would be implemented very
specifically and would achieve real goals, but it has not yet achieved all it was designed to accomplish. One of
the main reasons for its shortcomings is that many departments of the government, except for the Ministryof Justice, have not given their full attention to this issue. Above all, however, the key problem is the lack ofattention from local governments which influence the everyday lives of ordinary Koreans most directly inproviding their administrative services.
One way of increasing general awareness of crime victims is that the Korean President can make anofficial statement concerning the protection of crime victims during Crime Victim’s Week as the American
President did. He can also attend the Human Rights of Korean Crime Victims Competition annually. The
President’s attention to this issue can be the most effective driving force for promoting new and bettermeasures for crime victims. Along with increased attention from the government, the Basic Plan should bedesigned to include an array of feasible sub-plans and strategies from various perspectives.
Recently, the Ministry of Justice sought to establish the Welfare Center for Victims of Crime (Smile
Welfare Center) and to develop a strong network among institutions supporting crime victims. The Welfare
Center for Victims of Crime is a place for providing psychological and mental care services to victimsof violent crimes and their family members. This Center will also run a shelter for those victims who
are unable to get appropriate care in their own homes. The Ministry of Justice has a plan to implement
all services of the Welfare Center for Victims of Crime, beginning this year, by contracting with a civic
professional institute.
The Ministry of Justice’s work for developing a strong network is to create a systematic collaborative
relationship among individual victim support institutions, which only covers one or two specific groups ofcrime victims separately. For example, some institutions focus only on victims of sexual violence crime
cases and domestic violence cases. Others aim to help victims of school violence. As such, victims of childmolestation cases and sexual traffic cases are also assisted separately through different institutions. Thus,
with the goal of providing proper assistance to a victim in a right time period, the Ministry of Justice is
attempting to develop a total telephone network among these institutions and a source internet homepage
connecting all these institutions. In particular, it is necessary to include the police, prosecutors, andemergency call 119 into this total network of victim support in order to help victims from the very first stageof the criminal investigation.

B. Strength of Measures for Victims of Crime in Criminal Proceedings
The revision of the Criminal Procedure Act allows the petition for adjudication for all crimes, and since2008, lay Koreans have participated in the criminal justice process as a revised form of a jury trial. Alongwith these recent changes in the criminal justice system, I believe that it is necessary to enhance the statusof crime victims in the criminal justice procedure. Thus, a system should be adopted in which the crime
victim can participate in a criminal case as a direct party to the proceeding, not as a witness, and exercise
his or her rights. For instance, the victim or his or her bereaved family may be allowed to conduct his or her
own action by producing evidence, by calling and questioning witnesses, by stating his or her opinion about
the sentencing, and by being involved in the appeal process. Or, at least, the system should allow the victim
or his or her bereaved family to appear in court as a direct party and to ask his or her own questions of the
defendant.

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Recently, there has been a very desirable movement toward the strong support of victims of crime incriminal proceedings. The Ministry of Justice has considered the adoption of systems strengthening thestatus of victims in the criminal procedure very positively. Such systems include: (1) the victim participation
system, where a victim can present his or her opinion in court - not as a witness, but as a participant; (2)the victim counsel system; and, (3) the witness protection programme, which substantially guarantees theprotection of a witness, including the relocation of a witness or even the creation of a new identity for awitness, when necessary.

C. Creation of the Crime Victim Fund
Sufficient financial support is an essential prerequisite for the stable and successful implementationof any viable measures for crime victims. Since the current budget for these measures is very tight, theestablishment of the Crime Victim Fund is urgent and crucial. Recently, one defendant who committed achild sexual crime was given a relatively very short prison sentence, especially compared to the degree ofthe cruelty of his criminal act. This case was reported in the Korean news media, which eventually led to anational awareness of the necessity for victim support. As a result, on 21 October 2009, a Draft of the Crime
Victim Fund Act was submitted to the Korean National Assembly and is now being deliberated.
The Draft of the Crime Victim Fund Act considers fines paid for criminal acts to be a major source ofmoney for the Crime Victim Fund. This plan would require the allocation of approximately 5% of the total
amount of executed fines to this fund. For instance, in 2008, the total amount of executed fines was 1.5
trillion won. Thus, 5% of this total, or 75 billion won, would be paid to this fund according to the draft of thisAct. The draft specifies:
1. The usage of this fund for the various types of financial subsidies for victims;
2. The payment of government subsidies to the co-operatives for assisting victims of crime; and3. Other measures to support crime victims.
It is presumed that the National Assembly will reduce the amount of the fund when it passes the draftof this Act. Nevertheless, if the draft is passed, irrelevant to the actual amount, the Crime Victim Fund will
make a great turning-point in Korean measures for victims of crime.
If the fund is secured, it should be first employed to support and foster the Crime Victim Support
Centers. The Crime Victim Support Centers then will be well-equipped from every organizational aspect:personnel, material, and financial management. As a consequence, it is expected that the Crime Victim
Support Centers will provide “services of searching for victims to support (rather than waiting until victims
come to the centers)” and “services according to the demand of victims.” In addition, based on the creationof the Korean Crime Victim Supporting Association in September 2008, more attention should then be given
to international co-operation for victim support.

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MEASURES FOR CRIME VICTIMS IN THE INDIAN CRIMINAL JUSTICE SYSTEM
Kumaravelu Chockalingam *I. INTRODUCTION
A. Impact of Crime on Victims
Crime affects the individual victims and their families. Many crimes also cause significant financial
loss to the victims. The impact of crime on the victims and their families ranges from serious physical andpsychological injuries to mild disturbances. The Canadian Centre of Justice Statistics states that about one
third of violent crimes resulted in victims having their day-to-day activities disrupted for a period of one day(31%), while in 27% of incidents, the disruption lasted for two to three days (Aucoin & Beauchamp, 2007).
In 18% of cases, victims could not attend to their routine for more than two weeks. A majority of incidents
caused emotional impact (78%). Irrespective of the type of victimization, one-fifth of the victims felt upset
and expressed confusion and or frustration due to their victimization. Overall, victims felt less safe thannon-victims. For example, only a smaller proportion of violent crime victims (37%) reported feeling verysafe walking alone after dark than non-victims (46%). Just less than one-fifth (18%) of women who had
been victims of violence reported feeling very safe walking alone after dark when compared to their malecounterparts.
B. Extent of Crime
In most countries, officially reported crimes are only the tip of the iceberg as many crimes go unreported
due to a variety of factors. Crimes such as family violence are hardly reported, for obvious reasons. Evenin the case of crimes committed outside the home, offences relating to sexual assault or sexual harassment
are also grossly under reported. The recent UN sponsored International Crime Victimization Surveys(ICVS) estimates showed that one in five of all adults will be victimized by a common crime each year, withsome of them re-victimized. Violence against women is more prevalent than against men. About twice
as many women will be victims of violence in Africa and Latin America as in Europe and Asia. In Africa,
Latin America and Asia, victimization of women through violence is more prevalent than that of men. In
large cities in Latin America and Africa, 10-15% of adult populations will become victims of violence eachyear - a rate 50% higher than that of affluent countries (Waller, 2003, p.13). The ICVS (2004) reports aninteresting result: the 10 countries with the highest crime rates comprise both very affluent countries
such as Switzerland, Ireland and Iceland, and less affluent nations (Estonia, Mexico). This goes against
the common belief that poverty is the root cause of crime. Most of the high crime countries are relatively
highly urbanized, excepting Ireland (van Dijk, Manchin, van Kesteren, Hideg, 2007 as cited in van Dijk, vanKesteren & Smit, 2007, p. 43).
C. Some Indications of Crime Statistics in India
The Code of Criminal Procedure of India divides offences as cognizable and non-cognizable. Cognizableoffences are those for which a police officer can arrest a suspect without a court warrant. Non-cognizableoffences are those for which a police officer cannot arrest a suspect without a court warrant. The recent“Crime in India” publication (Government of India, 2007) states that about 1.99 million cognizable offenceswere registered under the Indian Penal Code (IPC), whereas under the Special and Local Laws (SLL), 3.74
million cognizable offences were registered. In total, 5.7 million offences were registered under both the IPC
and SLL. The rate of total cognizable crimes per 100,000 persons during 2007 was 504.5, which rose from455.7 in 2006.
The percentage share of violent crimes reported was 10.8% of the total number of IPC crimes. Violent
crimes have been classified under four categories: those affecting life, those affecting property, those* Professor of Criminology and Victimology, Deputy Director, Tokiwa International Victimology Institute, Tokiwa University,
Mito, Ibaraki, Japan.

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affecting public safety, and those affecting women. Significantly, though the share of violent crimes of thetotal IPC crimes has been showing a declining trend, the share of violent crimes affecting women alone has
increased continually from 2003 to 2007. A total of 185,312 incidents of crimes against women, both under
IPC and SLL, were reported during 2007 as compared to 164,765 during 2006, recording an increase of
12.5% during 2007. For the total number of crimes under the IPC, the share of crimes against women was
8.8% in 2007. Of the total number of crimes against women, rape offences constituted 7.6%. The actual
number of victims of rape was 20,771 out of 20,737 reported rape cases in 2007. Reported rape offences
increased by 7.2% in 2007 over 2006. The number of dowry death offences (8,093) in 2007 also increased by
6.2% over the previous year.

II. OVERVIEW OF THE INDIAN CRIMINAL JUSTICE SYSTEM
India derived its criminal justice system from the British model. There is a clear demarcation of the roleand powers and functions of the Legislature, Executive, and Judiciary. The judiciary is independent and there
is a free press. The penal philosophy in India has accepted the concepts of prevention of crime and treatment
and rehabilitation of criminals, which have been reiterated by many judgments of the Supreme Court.
Victims have no rights under the criminal justice system, and the state undertakes the full responsibility toprosecute and punish the offenders by treating the victims as mere witnesses.

A. Constitution, Criminal Law and Procedure:
The Indian criminal justice system is governed overall by four laws:(i) The Constitution of India(ii) The Indian Penal Code(iii) The Code of Criminal Procedure of India(iv) The Indian Evidence Act
The legislative power is vested with the Union Parliament and the state legislatures and the law-making
functions are divided into the Union List, State List and Concurrent List in the Indian Constitution. The
Union Parliament alone can make laws under the Union list and the state legislatures alone can make laws
under the State list, whereas both the Parliament and the State Legislatures are empowered to make lawson the subjects mentioned in the Concurrent List of the Constitution.
The Constitution of India guarantees certain fundamental rights to all citizens. Under the Constitution,
criminal jurisdiction belongs concurrently to the central government and the governments of all the states.
At the national level, two major criminal codes, the Indian Penal Code, 1861 and the Code of Criminal
Procedure, 1973, deal with all substantive crimes and their punishments, and the criminal procedure
respectively to be followed by the criminal justice agencies, i.e. the police, prosecution and judiciary during
the process of investigation, prosecution and trial of an offence. These two criminal laws are applicablethroughout India and take precedence over any state legislation. All major offences are defined in the Indian
Penal Code and these apply to resident foreigners and citizens alike. Besides the Indian Penal Code, many
special laws have also been enacted to tackle new crimes. The Indian criminal justice system has four subsystems which include: Legislature, (Union Parliament and State Legislatures), Law enforcement (Police),
Adjudication (Courts), and Corrections (adult and juvenile correctional institutions, Probation and other noninstitutional treatment). The legal system in India is adversarial.

III. HISTORY AND DEVELOPMENT OF VICTIMOLOGY IN INDIA
A. Evolution of Victimology in India
At present, a crime victim or a complainant is only a witness for the prosecution. Whereas the accusedhas several rights, the victim has no right to protect his or her interest during criminal proceedings.
Sometimes, even the registering of a criminal case in the police station depends upon the mercy of thepolice officer: victims suffer injustice silently and in extreme cases, take the law into their own hands andseek revenge on the offender.
Though no separate law for victims of crime has yet been enacted in India, the silver lining is that victim
justice has been rendered through affirmative action and orders of the apex court. Besides, many national
level Commissions and Committees have strongly advocated victims’ rights and reiterated the need for98THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

a victims’ law. Studies on crime victims by researchers started in India only during the late 1970s. Early
studies were on victims of dacoit gangs (i.e. gangs of armed robbers) in the Chambal valley (Singh, 1978);victims of homicide (Rajan & Krishna, 1981); and victims of motor vehicles accidents (Khan & Krishna,1981). Singh and Jatar (1980) studied whether compensation paid to victims of dacoits in Chambal Valley was
satisfactory or not. Since the 1980s, many scholars have conducted studies in Victimology, which have been
published.*

B. Initiatives in Victimology in South India
In 1984, for the first time in India, an exclusive three day Seminar on Victimology was organizedinvolving researchers, academics and practitioners from the CJS. I organized the Seminar when I was Headof the Department of Criminology of the University of Madras (Chockalingam, 1985b).
After 1990, the Department began to offer Victimology as one of the courses or electives for its Master’s
degree in Criminology and many students took interest and opted to study the subject of Victimology. Many
students who joined for doctoral research under my supervision worked on victim related topics such as
Fear of Crime Victimization, Rape Victims, Sexual Harassment of Women Victims, Victims of Human Rights
Violations etc. to mention a few, and earned their doctoral degrees from the University of Madras. Besides,
many Master’s degree students in Criminology also did projects on victimological topics and made empiricalinvestigations and added to the victimological literature. Some research projects I conducted under the
grants sanctioned by the Indian Council of Social Science Research (Chockalingam, 1993b), Thiruvalluvar
Criminology Research Foundation (Chockalingam, 1997) and the University Grants Commission(Chockalingam, 2001) etc. include Psycho-social and Legal Study of Rape Victims; Crime Victimization
Survey in four major cities in the State of Tamil Nadu; and Victims of Corruption. Reports of each of theseprojects were produced.

C. Establishment of the Indian Society of Victimology (ISV)In August 1992, with my initiative, a forum was founded to discuss the problems of victims, todisseminate knowledge and awareness of the plight of crime victims and to mobilize support for creatinga new law for victims. The name of the organization was the Indian Society of Victimology, and it was
located in the University of Madras. I was the Founder President and two other senior high ranking police
officers, Dr. R. K. Raghavan and Mr. Venkatesan, were Vice Presidents. The ISV organized many seminars
and symposia and biennial conferences in Chennai and other capital cities on subjects of topical interest in
the field of Victimology. The major contribution of the ISV to the advancement of victimology in India was
the organization of a workshop to draft a Victim Assistance Bill. This occurred in September 1996 withthe support of the National Law School of India University, Bangalore under the leadership of Professor N.
R. Madhava Menon and the National Human Rights Commission (NHRC) under the Chairmanship of thechampion of human rights and victim justice, and former justice of the Indian Supreme Court, V. R. Krishna
Iyer. The draft bill on Victim Assistance (Indian Society of Victimology, 1996) prepared by the ISV was sent
to relevant Ministries, such as the Ministry of Law and Justice and the Ministry of Home Affairs and the
Law Commission of India, NHRC, to consider enacting a national law on victim compensation/assistance inIndia. The UN Commission on Crime Prevention and Criminal Justice, Vienna also supported the initiativeof the ISV by writing to the Home and Law Ministries of the Government of India to encourage it toconsider enacting a victim law, treating the draft bill on Victim Assistance prepared by the ISV as a model.
Simultaneously, efforts were taken by the ISV to impress upon the State Government of Tamil Nadu theadvantages of creating a Victim Assistance Fund for the benefit of crime victims within the state of Tamil
Nadu. In consequence, the then Chief Minister of Tamil Nadu announced in the Legislative Assembly in
April 1995 the introduction of a new scheme to provide monetary assistance to certain categories of victimsof violent crime and allocated ten million rupees as a first step for the scheme (Government of Tamil Nadu,
1995; Government of Tamil Nadu, 1997). Under the scheme, victims of homicide or their bereaved relatives,
victims of serious physical injuries including rape, and victims of grievous hurt were eligible for monetary
1 Bajpai, 1988; Bajpai, 1997; Bajpai, 2006; Chockalingam, 1985a; Chockalingam, 1985b; Chockalingam, 1988; Chockalingam,

1992; Chockalingam, 1993a; Chockalingam, 1995; Chockalingam, 1999; Chockalingam, 2000; Chockalingam, 2003a;
Chockalingam, 2003b; Chockalingam, 2005; Chockalingam, 2007; Chockalingam, 2008; Chockalingam & Srinivasan, 1993;
Chockalingam & Srinivasan, 1995; Chockalingam & Srinivasan, 2007; Chockalingam & Srinivasan, 2008; Chockalingam &Srinivasan, 2009;Chockalingam & Vijaya, 2008; Jaishankar, 2007; Rajan,1981; Senthilathiban & Chockalingam, 1984.

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assistance from the government, though it is not a right of the victim as it is not a law but only an Executive
order of the Government (Chockalingam, 2003a).

IV. BASIC CONCEPTS AND THEORY OF VICTIMOLOGY
A. Basic Concepts
Diverse views exist on the focus and place of the discipline of Victimology. While some believe that
Victimology should function as an independent area of enquiry, others view it as a subfield of Criminology.
A second issue concerns the breadth of victim related issues to be covered in the field of Victimology. Somescholars advocate that Victimology should limit itself to the study of victim-offender interaction. Othersargue that the needs of crime victims, functioning of the organizations and institutions which respond tothese needs, and the emerging roles and responsibility for crime victims within the CJS are important areasof inquiry for Victimology. A third issue is the breadth of the definition of the term ‘victim’. One approach is
to limit the concept to victims of traditional crimes such as murder, rape, robbery, burglary etc. However, it
has also been proposed to include a broader definition of the concept by covering groups such as prisoners,
immigrants, subjects of medical experimentation, and persons charged with crime but not proved guilty(Doerner & Lab, 2005; Karmen, 2005).
Victim-offender study was the central focus of early pioneers in the field of Victimology, like Hans vonHentig. Hentig explained the concepts of ‘victim vulnerability’ and ‘victim culpability’ and gave a typology ofvictims. ‘Victim vulnerability’ refers to susceptibility of certain groups of people to victimization, through nofault of their own, but based on certain demographic or other characteristics (e.g. children, elders, women),as these people are more vulnerable to becoming victims. ‘Victim culpability’ refers to actions on the partof victims that may either invite or precipitate victimization. Deriving from the concept of victim culpability,
Wolfgang (1958, p. 254) proposed the concept of ‘Victim Precipitation’, and in his classic study of homicide
victims in Philadelphia, he found that in 26% of homicides, victim precipitation occurred. Although somebehaviour of victims may be partially responsible for their victimization, Victimologists are also talking of
the danger of ‘victim blaming ’. Besides, in Penal or Criminal Victimology, where only the crime victims were
included, Beniamin Mendelsohn proposed a new approach called ‘General Victimology’, to include a wide
variety of victims, as he felt that human beings suffer from many causal factors and focusing on the criminal
victimization alone under Victimology is too narrow a perspective. According to Mendelsohn (1976:21),“Just as medicine treats all patients and all diseases, just as criminology concerns itself with all criminals
and all forms of crime, so Victimology must concern itself with all victims and all aspects of victimity inwhich society takes an interest”.
Victimology institutionalized by the World Society of Victimology could be defined as “the scientific studyof the extent, nature and causes of criminal victimization, its consequences for the persons involved andthe reactions thereto by society, in particular, the police and the criminal justice system as well as voluntary
workers and professional helpers” (van Dijk, 1999). This is a comprehensive definition encompassing
both penal or interactionist, and general or assistance oriented Victimology. The UN Declaration (UNGeneral Assembly 1985) on victims describes victims thus: “Victims means persons who, individually orcollectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or
substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal
laws, including those proscribing abuse of power.” In the recent decades, many scholars also express theview that while the General Victimology of Mendelsohn is too broad an approach, criminal victimology is
too narrow a perspective and suggest that Victimology should evolve as a science of victims of human rights
violations, including crime.

B. Theories in Victimology
Victimology does not have many theories exclusively from the perspective of victims. However, someof the theoretical explanations from Criminology of crime causation are borrowed by Victimologists tounderstand crime victimization. One such theory is the Routine Activities Theory (Cohen & Felson, 1979).
C. The Routine Activities Theory
This theory says that crime occurs whenever three conditions come together: (i) suitable targets; (ii)motivated offenders; and (iii) absence of guardians.

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D. Psycho-social Coping Theory
Psycho-social coping is a general theoretical model from which any form of victimological phenomena
can be explained. The model uses behavioural versus legal concepts. Phenomenology, Control Theory,
Stress Theory, Symbolic Interactionism and Behaviourism are the primary roots of this theoretical model.
Most part of the literature on coping has evolved from psychology, dealing with just cognitive responses tovarious forms of stress (Dussich, 1988). According to Pearlin and Schooler (1978), coping refers to “things
that people do to avoid being harmed by life-strains”. To understand how and why some victims are able
to overcome life’s problems and some others not, a psycho-social coping model was developed in order tocomprehensively deal with psychic, social and physical variables.
A psycho-social coping model is an attempt to explain the dynamics of how people deal with problems
in their environment. The term “environment” used in this model is referred to as ‘Coping Milieu’. The
main term in the Coping Milieu is the Coping Repertoire, which is made up of a person’s coping skills andsupported by four other interacting resources: (i) time; (ii) social assets; (iii) psychic assets; and (iii) physicalassets. The coping process is the dynamic component of the model and is made up of four sequential phases:••••

Prevention
Preparation
Action, andReappraisal

The result component of the coping model is concerned with: (i) either the elimination, (ii) reduction,or (iii) retention of stress. The information obtained from the coping process is fed back to the coping
repertoire and in turn the original coping repertoire is altered. The repertoire, problems, coping processes
and the products are the key elements of coping (Dussich, 1988; Dussich, 2006). Both social and physicalresources help the individuals to deal with stress in specific situations.

V. CURRENT SITUATION OF VICTIMS OF CRIME AT EACH STAGE OF THE CRIMINALJUSTICE PROCESS IN INDIA IN COMPARISON TO INTERNATIONL STANDARDSThe Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (UN General
Assembly, 1985), considered the ‘magna carta ’ for victims, provides the basic framework of principles
which in the last two decades have been vociferously debated and converted as victims’ rights by some ofthe developed countries. The international standards expected of the countries in the treatment of victimsby the CJS agencies at different stages of the criminal process have been elaborately detailed in the UN
Handbook on Justice for Victims (United Nations Office for Drugs and Crimes, 1999, chapter III, pp.56-76).
The police play a pivotal role in victim assistance as it is the first agency victims come into contact with after
being victimized by a crime. The attitude of the victims towards the entire CJS will be based on the kind oftreatment the victims get from the police whom they first encounter. Unfortunately, in India the police arestill not oriented to meet the expectations of the victims as per the UN Handbook on Justice for Victims.
The police at the field level who are in actual contact with the victims in day–to-day crime situations areblissfully ignorant of the international developments in the field of Victimology and the better treatment
victims deserve from the police. The treatment of victims by the police also forms the basis for a negative
perception of the CJS, more particularly, the police, because the “treatment with compassion and respect for
their dignity”, emphasized by the UN Declaration, is missing completely. Because of the police behaviour
and their attitude in general, the legal community opposes any criminal law reforms which bestow trust on
the police and enhance their powers. Even today, Section 25 of the Indian Evidence Act, “No confession
made to a police officer shall be proved as against a person accused of any offence”, remains in force. But
the Government and the Police Academies pursue a policy of sensitizing the police to a better treatmentof victims. The Handbook says that “victims have a valid interest in the prosecution of the case and should
be involved at all stages of the proceedings”. In practice, the entire court proceedings protect the rights
and interest of the accused, neglecting the victims’ interest. Excepting that the victims are summoned totender evidence in courts, the various services and assistance to be rendered by the prosecution to victims(p.66-68) are not practiced in the criminal courts in India. In a nutshell, victims are alien to the criminal
proceedings as they have no rights excepting to be a witness when summoned by the court. With regard to
the role of the judiciary in justice for victims, though judges are by and large sympathetic towards victims,
on many of the requirements, such as separate waiting halls, information about the criminal proceedings,

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special services and support, ordering of restitution to victims, victim participation, victim protection etc.
(p.69-72) we have a long way to go to realize victim justice in India.
However, in the last decade, there is greater awareness on the part of the higher judiciary of the needfor a better treatment of crime victims by the criminal justice agencies at different stages in India and thisis reflected in the recommendations of the different committees and commissions calling for reforms in
the criminal justice system to improve the existing conditions and situations of victims during the criminal
justice process and some of the landmark judgments of the apex court in India.

A. Affirmative Action by the Higher Judiciary
1. Restitution to Victims
Despite the absence of any special legislation to render justice to victims in India, the Supreme Court has
taken a proactive role and resorted to affirmative action to protect the rights of victims of crime and abuseof power. The court has adopted the concept of restorative justice and awarded compensation or restitution
or enhanced the amount of compensation to victims, beginning from the 1980s. (Sukhdev Singh vs . State of
Punjab (1982 SCC (Cr) 467), Balraj vs . State of U . P . (1994 SCC (Cr) 823), Giani Ram vs . State of Haryana(AIR 1995 SC 2452), Baldev Singh vs . State of Punjab (AIR 1996 SC 372).
2. Justice for Rape Victims - Guidelines for Victim Assistance
In Bodhisattwa Gautam vs . Subhra Chakraborty (AIR 1996 SC 922), the Supreme Court held that if
the court trying an offence of rape has jurisdiction to award compensation at the final stage, the Court also
has the right to award interim compensation. The court, having satisfied the prima facie culpability of theaccused, ordered him to pay a sum of Rs.1000 every month to the victim as interim compensation along witharrears of compensation from the date of the complaint. It is a landmark case in which the Supreme Court
issued a set of guidelines to help indigenous rape victims who cannot afford legal, medical and psychologicalservices, in accordance with the Principles of UN Declaration of Justice for Victims of Crime and Abuse ofPower, 1985:(i)	The complainants of sexual assault cases should be provided with a victim’s Advocate who is wellacquainted with the CJS to explain to the victim the proceedings, and to assist her in the police
station and in Court and to guide her as to how to avail of psychological counselling or medical
assistance from other agencies;(ii)	Legal assistance at the police station while she is being questioned;(iii)	The police should be under a duty to inform the victim of her right to representation before any
questions are asked of her and the police report should state that the victim was so informed;(iv)	A list of Advocates willing to act in these cases should be kept at the police station for victims whoneed a lawyer;(v)	The Advocate shall be appointed by the Court, in order to ensure that victims are questioned
without undue delay;(vi)	In all rape trials, anonymity of the victims must be maintained;(vii)	It is necessary, having regard to the Directive Principles contained under Art. 38 (1) of theConstitution of India, to set up a Criminal Injuries Compensation Board. Rape victims frequently
incur substantial financial loss. Some, for example, are too traumatized to continue in employment;(viii)	Compensation for victims shall be awarded by the Court on conviction of the offender and by the
Criminal Injuries Compensation Board whether or not a conviction has taken place. The Board willtake into account pain, suffering and shock as well as loss of earnings due to pregnancy and theexpenses of childbirth if this occurred as a result of the rape.
3. State Compensation for Victims of Abuse of PowerAs early as 1983, the Supreme Court recognized the need for state compensation in cases of abuse of
power by the State machinery. In the landmark case of Rudul Sah vs . State of Bihar (AIR 1983 SC 1086),
the Supreme Court ordered the Government of Bihar to pay to Rudul Sah a further sum of Rs.30,000 ascompensation, which according to the court was of a “palliative nature”, in addition to a sum of Rs.5,000,
in a case of illegal incarceration of the victim for long years. Similarly in Saheli , a Women ’s Resources
Centre through Mrs . Nalini Bhanot vs . Commissioner of Police , Delhi Police (AIR 1990 SC 513), the Court

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awarded a sum of Rs.75, 000 as state compensation to the victim’s mother, holding that the victim died due
to beating by the police. In another landmark case of D . K . Basu vs . State of West Bengal (AIR 1997 SC 610),
the Supreme Court held that state compensation is mandatory in cases of abuse of power and said that “To
repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience”.

B. Recommendations of Commissions and Committees on Justice to Victims in India
During the last decade, there has been significant change in the thinking of the judiciary about the humanrights of victims. The concern of the courts and the judicial commissions and committees about the needto have a law on victim compensation or a comprehensive law on victim justice has been reflected in their
judgments and reports.
1. The Law Commission of India, 1996
The Law Commission, in its report in 1996, stated that, “The State should accept the principle ofproviding assistance to victims out of its own funds, (i) in cases of acquittals; or (ii) where the offender is nottraceable, but the victim is identified; and (iii) also in cases when the offence is proved” (Law Commission ofIndia Report, 1996).
2. The Justice Malimath Committee on Reforms of Criminal Justice System (Government of India, 2003)
The Justice V. S. Malimath Committee has made many recommendations of far-reaching significance toimprove the position of victims of crime in the CJS, including the victim’s right to participate in cases and toadequate compensation. Some of the significant recommendations include:• T he victim, and if he is dead, his or her legal representative, shall have the right to be impleaded as aparty in every criminal proceeding where the offence is punishable with seven years’ imprisonment or
more;• I n select cases, with the permission of the court, an approved voluntary organization shall also havethe right to implead in court proceedings;• T he victim has a right to be represented by an advocate and the same shall be provided at the cost of
the State if the victim cannot afford a lawyer;• The victim’s right to participate in criminal trial shall include the right:	to produce evidence; to ask questions of the witnesses; to be informed of the status of investigationand to move the court to issue directions for further investigation; to be heard on issues relating tobail and withdrawal of prosecution; and to advance arguments after the submission of the prosecutor’sarguments;• T he right to prefer an appeal against any adverse order of acquittal of the accused, convicting for alesser offence, imposing inadequate sentence, or granting inadequate compensation;• L egal services to victims may be extended to include psychiatric and medical help, interim
compensation, and protection against secondary victimization;• V ictim compensation is a State obligation in all serious crimes. This is to be organized in separate
legislation by Parliament. The draft bill on the subject submitted to Government in 1995 by the IndianSociety of Victimology provides a tentative framework for consideration;• T he Victim Compensation Law will provide for the creation of a Victim Compensation Fund to beadministered possibly by the Legal Services Authority. (Government of India, 2003).
3. The National Commission to Review the Working of the Constitution
The Commission to review the working of the Constitution (Government of India, 2002) has advocated a
victim-orientation to criminal justice administration, with greater respect and consideration towards victims
and their rights in the investigative and prosecution processes, provision for greater choices to victims intrial and disposition of the accused, and a scheme of reparation/compensation particularly for victims ofviolent crimes.

VI. RECENT LAWS TO CARE FOR AND PROTECT SPECIAL CATEGORIES OF VICTIMS
There are also significant developments in the form of new laws to promote the cause of victims and to
mitigate the sufferings of potential victims of vulnerable sections of the population such as women, children

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and elders. The recent enactments passed by the Parliament have a significant bearing on preventing
victimization and giving relief to victims:

A. The Protection of Women from Domestic Violence Act, 2005
“The Protection of Women from Domestic Violence Act, 2005” is a major achievement of the women’s
movement towards protection of domestic violence victims after a struggle of 16 years. This Act aims
to provide for more effective protection of the rights of women guaranteed under the Constitution. The
definition of domestic violence is wide enough to include physical, sexual, verbal and emotional abuse. The
unique feature of the Act is that it prohibits denying the victim “continued access to resources or facilities
which the aggrieved person (victim) is entitled to use or enjoy by virtue of the domestic relationship,including access to the shared household”. A police officer, protection officer or a magistrate who hasreceived a complaint of domestic violence has a mandatory duty to inform the victim of her right to obtaina protection order or an order of monetary relief, a custody order, a residence order, a compensation orderor more than one such order and the availability of the services of service providers, protection officers,
and the right to free legal services under this Act. A violation of the protection order by the respondent is
an offence which can result in imprisonment for one year or a fine up to Rs.20,000 or both. If the protection
officer refuses to discharge his duties, he shall be punished with imprisonment for one year or with a fine of
20,000 rupees or with both.
B. The Maintenance and Welfare of Parents and Senior Citizens Act, 2007
This is also an innovative law aiming to protect elders and prevent elder abuse and victimization, which isa growing problem in many countries, including India. Under this law, an obligation is created of the children
or adult legal heirs to maintain their parents, or senior citizens above the age of 60 years who are unable tomaintain themselves out of their own earnings, to enable them to lead a normal life. If children or legal heirs
neglect or refuse to maintain the senior citizen, the Tribunal can pass an order asking the children or legal
heirs to make a monthly allowance for their maintenance.
C. Prevention of Child Abuse and Victim Protection
Empowering the child is the road to prevention from abuse and victimization. To empower the child,education is the tool. Therefore, primary education for children has been made a fundamental right as per
the decision of the Supreme Court of India in Unnikrishnan ’s Case (1993). Article 21-A of the Constitution
states that “The State shall provide free and compulsory education to all children of the age 6-14 years
in such manner as the State may by law determine”. The proposal also will have a positive impact oneradication of child labour. The spread of elementary education through constitutional measures would havea good impact on other social indicators like population growth, health and women’s development as well as
enhancement of productivity of the economy and reduction in unemployment.
1. The National Commission for Protection of Child Rights (NCPCR)
This Commission was set up in March 2007 and its mandate is to ensure that all Laws, Policies,
Programmes, and Administrative Mechanisms are in consonance with the Child Rights perspective asenshrined in the Constitution of India and also the UN Convention on the Rights of the Child (see atGovernment of India, 2009). India ratified the United Nations Convention on the Rights of the Child in 1992
and this Act was passed as one of the necessary steps to protect the rights of children in the country. The
National Commission for Protection of Child Rights has been taking up various issues brought forth in thearea of child abuse. After inquiry, the National Commission can recommend initiation of proceedings forprosecution or any other action it may deem fit.

D. Prevention of Caste-Based Victimization and Protection for Victims: The Scheduled Castes andthe Scheduled Tribes (Prevention of Atrocities) Act, 1989
This is an act to prevent atrocities against the members of the Scheduled Castes and Scheduled Tribes.
Under this Act, compensation to victims is mandatory, besides several other reliefs depending on the typeof atrocity. The victims are entitled to receive monetary compensation ranging from Rs. 25,000 to 200,000
depending on the gravity of the offence.

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VII. CONCLUSION:
CHALLENGES AND PROPOSAL FOR MEASURES FOR VICTIMS IN INDIAIn the process of prevention of victimization and the protection of victims, there are many challenges
faced in India which are being tackled through some positive measures. Some of the challenges and thecountermeasures include:

A. No Separate Law for Crime Victims Yet
But continuous efforts are going on to enact a national law for victims. The ISV’s Victim Bill is a modeldraft Bill.
B. Corruption in the Indian Criminal Justice System
Corruption by public officials erodes the entire health of the society and victimizes people in all sectionsof the population. Many steps to reduce the level of corruption and accumulation of illegal wealth have beentaken by the Government. Declaration of assets and wealth by judges of the higher judiciary and ministers of
the government is a recently introduced example.
C. Empowerment of Women to Prevent Victimization of Women
Serious efforts to change the traditional submissive and victimized role of women have been taken
up by NGOs and the Government. One attempt is the consistent struggle and active efforts by women’sorganizations to get more political power for women in the form of representation in the Parliament, statelegislatures and local bodies through a 33% reservation of seats for women in these bodies. Women havealready succeeded in getting representation in local self-government but the struggle continues to get
reservations for women in Parliament and state legislatures. Many concessions, special privileges and tax
rebates are provided for female students to encourage them in higher education and employment, and toencourage senior women citizens in economic self-reliance. The Cradle Baby scheme of the Tamil Nadu
State Government is a step towards protecting female babies and preventing female infanticide.
D. Empowerment of Children
Making primary education a fundamental right under the Constitution is a leaping step to empowerchildren as education is the tool for development. The implementation of this right will have a bearing onother kinds of victimization such as child labour. Strengthening the Noon Meal scheme in the schools for thechildren in Tamil Nadu and the introduction of this scheme in other states will attract more children from thedisadvantaged sections of the society to schools to pursue study.
E. Major Challenge is Implementation
Transparency and honesty among the politicians who make policies and the commitment of government
officials who are charged with the responsibility for implementation are the big challenge. Whereas thesituation of victims has not been satisfactory in India, developed countries, including the United Kingdom,
have gone far ahead to render victim justice, but the expectations and aspirations of victims remain higheven in those countries which do not match the accomplishments made elsewhere. The UK enacted
the Criminal Injuries Compensation Act in 1995. The Home Office in the UK, in its report “Criminal
Justice: The Way Ahead”, in 2001, found that “many victims felt that the rights of the accused of a crime
take precedence over theirs in criminal proceedings”. During the long proceedings of investigation andtrial, victims are not kept informed or provided with a sense of security. Very often, victims are expected
to appear in courts for cases, which are adjourned even without their notice, or they are subjected tounnecessarily stressful courtroom experiences. The agencies meant to help victims do not always
understand and respond effectively to their needs. This revelation has made the UK recommend somemeasures to balance its system of justice. Hence, victim justice has not been achieved in full even incountries where lots of developments have been made. We have to pursue the matter vigorously with thegovernments and with civil society to realize the basic provisions envisioned in the UN Declaration ofVictims in the majority of developing countries.

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REFERENCES
Aucoin, K. & Beauchamp, D. (2007). Impacts and consequences of victimization, GSS 2004, CanadianCentre for Justice Statistics. Juristat , Vol, 27, No, 1. Retrieved on 14 December, 2009 from http://www.
statcan.gc.ca/pub/85-002-x/85-002-x2007001-eng.pdf
Bajpai, G.S. (1988). Patterns of Criminal Victimization in Sagar city, unpublished Ph.D. dissertation,
University of Sagar, India.
Bajpai, G.S. (2006). Psycho-social consequences of victimization in rape. International Perspectives inVictimology , Vol. 2, No. 1. pp. 67-81.
Bajpai, G.S. (1997). Victim in the Criminal Justice Process , Uppal Publishing House. New Delhi: India
Chockalingam, K. (1985a). Problems of victims of crime and their families, in Readings in Victimology ,(Ed.) Raviraj Publications. Chennai: India, pp.73-90.
Chockalingam, K. (1985b). Readings in Victimology , Raviraj Publications, (Ed.) Chennai: India.
Chockalingam, K. (1988). Victimological research in India, in Victimology -International Action and Studyof Victims , (Ed.), Paul Separovic, University of Zagreb, Zagreb, Vol.1, pp.141-150.
Chockalingam, K. (1992). Vulnerability characteristics among victims of crimes and non-victims,
in International Faces of Victimology (Ed.) by Ben David, S. & Kirchhoff, G.F, WSVN Publications,Monchengladbach: Germany, pp.440-449.
Chockalingam, K. (1993a). Restitution to victims of crime – recent developments in India, Indian Journalof Criminology , Vol.2 (2), pp. 72-81.
Chockalingam, K. (1993b). A Psycho -Social and Legal Study of Rape Victims – a Research Project Reportsubmitted to the Indian Council of Social Science Research, New Delhi.
Chockalingam, K. & Srinivasan, M. (1993). Attitude of the student community towards police functioningin Tamil Nadu, Police Research and Development Journal , July-September 1993, pp.9-14.
Chockalingam, K. (1994). An analysis of the trends of rape victimization in India in International Debates
in Victimology (Ed.) Kirchhoff, G.F., Kosovski, E & Schneider. H.J., WSVN Publications, Monchengladbach:
Germany, pp.437-449.
Chockalingam, K. (1995). A review of victimological developments in India, Japanese Journal ofVictimology , March 20, 1995, pp . 78-95.
Chockalingam, K. (1997). Victims of Corruption among the people seeking various kinds of licenses inTransport Department – a Research Project Report submitted to Thiruvalluvar Criminological Research
Foundation, Chennai, India.
Chockalingam, K. & Srinivasan, M. (1995). Child abuse by parents – a study among the school-goingchildren in Madras, Trends in Social Research , Vol. II, No.1, pp. 135-144.
Chockalingam, K. (1999). Victims of abuse of power, Journal of the Australasian Society of Victimology ,2(1), pp.19-30. Adelaide Australia.
Chockalingam, K. (2000). Female infanticide - A victimological perspective, in Victimology at theTransition from the 20th to the 21st Century , (Ed.) Friday, P.C & Kirchhoff, G.F., WSV Publishing,Monchengladbach: Germany, pp. 273 - 287.

106

THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

Chockalingam, K. (2001). Victimisation Survey in four Major Cities in Tamil Nadu – a Research Project
Report submitted to the University Grants Commission, New Delhi.
Chockalingam, K. (2003a). The position of victim support schemes in India, in Victims and Criminal
Justice : Asian Perspectives , (Ed.) Tatsuya Ota, Hogaku-Kenkyu-Kai Keio University, Tokyo, Japan, pp.63-82.
Chockalingam, K. (2003b). Crime victimization survey in four major cities in Southern India, Forum on
Crime and Society , Vol.3, No.1 & 2, pp.117-126.
Chockalingam, K. (2005). Impact of the UN Declaration on victims- developments in India, in Victims of
Crime and Abuse of Power , (Ed.) Vetere, E. & Pedro, D. Bangkok: Thailand, pp.118-125.
Chockalingam, K. & Srinivasan, M. (2007). Perception of victim vulnerability and victim treatment: apreliminary study of college students in Chennai (India), International Perspectives in Victimology , Vol.3,
No.1, pp.34-41.
Chockalingam, K. (2007). Victimology and victim justice: human rights perspectives, in Human Rights ,Justice , & Constitutional Empowerment , (Ed.) Kumar, C.R. & Chockalingam, K., Oxford University Press:
UK, pp.437-461.
Chockalingam, K. (2008). Evaluation of the implementation of the “victims assistance fund in Tamil
Nadu”, The Indian Journal of Criminology & Criminalistics , Vol.XXIX, No.1, pp.8-19.
Chockalingam, K. & Srinivasan, M. (2008). Perception of victim treatment by police and courts: a study
among university students in India and Japan, TEMIDA , September 2008, p.p.63-78.
Chockalingam, K. & Vijaya, A. (2008). Sexual harassment of women in public transport in Chennai city: avictimological perspective, The Indian Journal of Criminology & Criminalistics , Vol.XXX, No.3.
Chockalingam, K. & Srinivasan, M. (2009). Fear of crime victimization: a study of university students in
India and Japan, International Review of Victimology , Vol.16, No. 1, pp.89-117.
Cohen, L. E. & Felson, M. (1979). Social change and crime rate trends: a routine activity approach.
American Sociological Review , Vol. 44, pp. 588-608.
Diaz, S.M. (1987). Comprehensive victim assistance - Indian situation. Indian Journal of Criminology , 15,
pp. 84-88.
NJ.

Doerner, W. G. & Lab, S. P. (2005). Victimology . 4th Edition. Lexis Nexis - Anderson Publishing. Newark,

Dussich, J. P. J. (1988). Social coping: a theoretical model for understanding victimization and recovery,”in Zvonimir Paul Šeparovic(Ed.)，Victimology : International Action and Study of Victims . Zagreb，Croatia.
Zagreb University Press, pp.95-105.
Dussich, J. P. J. (2006). Psycho /Social Coping : a Theoretical Model for Understanding General
Victimization and Facilitating Recovery . Presentation made at the 2006 American Society of Criminology
Conference. Los Angels, CA.
Government of India. (2002). Report of the National Commission to Review the Working of theConstitution, Vol.1, Chapter 7.15. pp.143-144.
Government of India. (2003). Report on the Committee on Reforms of Criminal Justice System, Vol.1.
Ministry of Home Affairs, New Delhi: India. Retrieved on January 5, 2010 from http://indialawyers.files.
wordpress.com/2009/12/criminal_justice_system.pdf
Government of India. (2006). The Protection of Women from Domestic Violence Act of 2005, No.43. The

107

RESOURCE MATERIAL SERIES No.81

Gazette of India , Ministry of Law and Justice, New Delhi: India.
Government of India. (2007). Crime in India , National Crime Records Bureau, Ministry of Home Affairs,
New Delhi.
Government of India. (2009). The National Commission for Protection of Child Rights. Retrieved on 5
January 2010 from http://ncpcr.gov.in/
Government of Tamil Nadu. (1995). Creation of Victim Assistance Fund. G.O. M.S. NO.12 dated 21
August 1995, Home (Police-XII) Department.
Government of Tamil Nadu. (1997). Victim Assistance Fund-Working of the System Reviewed. G.O. M.S.
NO.89 dated 24 January 1997, Home (Police-XII) Department.
Indian Society of Victimology. (1996). The Victims (Criminal Injuries) Right to Assistance Bill: Draft Bill
Approved by the II Biennial Conference of the Indian Society of Victimology at Bangalore in October 1996.
Jaishankar, K. (2007). Victims of stalking in India: A study of girl college students in Tirunelveli
city. TEMIDA . pp.13-21. Retrieved on 10 January 2010 from http://www.doiserbia.nb.rs/img/doi/14506637/2007/1450-66370704013J.pdf
Karmen, A. (2005). Crime Victims : An Introduction to Victimology , 5th Edition, Thomson Wadsworth.
California: USA.
Khan, M.Z. & Krishna, K.P. (1981). Victims of fatal Motor vehicle accidents , Institute of Criminology andForensic Science, New Delhi: India.
Law Commission of India Report. (1996). Victimology in 154th report on the code of criminal procedure
1973 (Act No. 2 of 1974) Chapter XV, pp. 57-65.
Madhava Soma Sundaram, P. (1996), Experience of fear of crime and victimization, Indian Journal of
Criminology , Vol.24 (1 & 2) Jan. & July.
Mendelsohn, B. (1976). Victimology and contemporary society’s trends. Victimology 1: 8-28.
Pearlin, L. I. & Schooler, C. (1978). The structure of coping. Journal of Mental Health and Behaviour , 19,
2-21
Rajan, V. N. (1981). Victimology in India - An Introductory Study , Allied Publishers, New Delhi: India.
Rajan, V. N. & Krishna, K.P. (1981). Problems of victims of homicide in Bangalore and Delhi , Institute of
Criminology and Forensic Science, New Delhi: India.
Senthilathiban, K. & Chockalingam, K. (1984). Victims of crime and their interaction with the Police – apreliminary study of their problems and perceptions, Indian Journal of Criminology and Criminalistics . Vol.
No.3 & 4, pp.113-121.
Singh, D.R. (1978). Victims of Dacoit gangs in Chambal Valley , Unpublished Ph.D. thesis, University of
Sagar, Madhya Pradesh, India.
Singh, D.R. & Jatar, D.P. (1980). Compensation to the victims of dacoit gangs in the Chambal Valley,
Indian Journal of Criminology , 8, (1), 21-30.
Singh, D.R. (1985). Development of Victimology in India, Indian Journal of Criminology , Vol.13, No. 2,
pp.144-150.
United Nations General Assembly. (1985). Declaration of Basic Principles of Justice for Victims of Crime108

THE 144th INTERNATIONAL SENIOR SEMINAR
VISITING EXPERTS’ PAPERS

and Abuse of Power, New York.
UN Office for Drug Control and Crime Prevention. (1999). Hand Book on Justice for Victims on the use
and application of the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power ,New York: Centre for International Crime Prevention.
van Dijk, J. (1999). Introducing Victimology, in Caring for Crime Victims , Selected Proceedings of the 9thInternational Symposium on Victimology (Eds.,) van Dijk, J., van Kaam, R.G.H., & Wemmers, J. Criminal
Justice Press, Monsey, New York.
van Dijk, J., van Kesteren, J., & Smit, P. (2007). Criminal Victimization in International perspective -Keyfindings from the 2004-2005 ICVS and EU ICS , UNODC & UNICRI. WODC, Den Haag: The Netherlands. p. 43
Waller, I. (2003). Crime Victims : Doing Justice to their Support and Protection , HEUNI Publication,
Series No.39, p.13.
Wolfgang, M. E. (1958). Patterns in Criminal Homicide . Montclair, NJ: Patterson Smith.

CASE LAW
Bodhisattwa Gautam vs . Subhra Chakraborty (AIR 1996 SC 922)
Balraj vs . State of U .P . (1994 SCC (Cr ) 823)
Baldev Singh vs . State of Punjab (AIR 1996 SC 372)
D .K . Basu vs . State of West Bengal (AIR 1997 SC 610)
Giani Ram vs . State of Haryana (AIR 1995 SC 2452)
Mrs . Nalini Bhanot vs . Commissioner of Police , Delhi Police (AIR 1990 SC 513)
Rudul Sah vs . State of Bihar (AIR 1983 SC 1086)
Sukhdev Singh vs . State of Punjab (1982 SCC (Cr ) 467)

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HISTORY AND OVERVIEW OF RIGHTS AND SERVICES FORFEDERAL CRIME VICTIMS WITHIN THE UNITED STATESKim Herd*

I. INTRODUCTION
As a nation, we are often humbled by the remarkable bravery and courage shown by crime victims in theaftermath of devastating crimes. Often at great personal sacrifice, victims of crime press forward with thecriminal justice process and encourage others to do the same in search of a just and fair outcome. Throughtheir contributions, and the assistance of thousands of dedicated victim advocates and supporters, the UnitedStates has been able to build a strong network of government and community-based victim assistanceprogrammes at all levels of the criminal justice system.
This paper will provide a brief history of the victims’ movement and discuss the rights and services
available to victims in the United States, focusing primarily on the federal criminal justice system.

II. BRIEF OVERVIEW OF THE CRIMINAL JUSTICE SYSTEM IN THE UNITED STATES
Criminal cases in the United States are prosecuted by neutral public officials acting on behalf of thegovernment, representing “the interests of society as a whole” as opposed to only the interest of thevictim.1 The United States Constitution grants public officials within the Executive Branch the power
to bring criminal prosecutions.2 Moreover, “the United States and its attorneys have the sole power toprosecute criminal cases in the federal courts.”3
Today, violations of federal law, such as terrorism, distribution of child pornography, bank robbery andhuman trafficking crimes, are prosecuted primarily by the United States Department of Justice (DOJ)
through its litigating divisions and 93 United States Attorneys’ Offices. Federal judges preside over criminal
trials, which are decided by a jury of twelve. Violations of state criminal laws, such as homicides, sexualassaults, and child abuse offences, are prosecuted mostly by local prosecutors’ offices (often called district
attorney’s offices), and in some cases, by State Attorneys General Offices (depending on the type of crime
involved).4 Federal, state, and local prosecutors’ offices and law enforcement agencies employ victimwitness support personnel, who collectively assist victims and witnesses during all stages of the criminal
justice process.

III. HISTORY OF THE VICTIMS’ RIGHTS MOVEMENT IN THE UNITED STATESIn the modern era, beginning primarily in the 1960s, crime victims sought more involvement andrecognition in the criminal justice process. Increasing crime rates prompted President Lyndon Johnson
to establish the President’s Commission on Law Enforcement and the Administration of Justice, which
conducted the first national victimization surveys. Survey results showed that “victimization rates were far
higher than shown in law enforcement figures – and that many non-reporting victims acted out of distrust of* Chief, Victim Witness Assistance Unit, United States Attorney’s Office for the District of Columbia, United States
Department of Justice. The views expressed in this article do not necessarily represent the views of the United States
Department of Justice or the United States.
1 See Ferri v. Ackerman , 444 U.S. 193, 202-203 (1979); see also Kelly v. Robinson , 479 U.S. 36, 52 (1986).
2 See U.S. Const. Art. II, § 3; United States v. Armstrong , 517 U.S. 456, 467 (1996).
3 Maine v. Taylor , 477 U.S. 131, 136 (1986); see also, e.g., 28 U.S.C. 515(a) (authorizing the Attorney General to conduct all
litigation, “civil or criminal,” on behalf of the United States).
4 In some states, local prosecutors are called “Commonwealth’s Attorneys,” “County Attorneys,” or “State’s Attorneys.”110THE 144th INTERNATIONAL SENIOR SEMINAR
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the criminal justice system.”5
Also in the 1960s, in recognition of the often devastating financial impact of crime, states began toestablish crime victim compensation programmes. These programmes provided reimbursement to crime
victims for out-of-pocket expenses incurred as a result of the crime. California established the firstprogramme in 1965, followed soon after by New York.6 Twenty-eight states had established compensation
programmes by the late 1970s, reimbursing crime victims for medical bills, lost wages, and other expenses.
The creation of these programmes spurred increased victim participation in the criminal justice system, inpart because victims were required to file police reports and co-operate with the prosecution to be eligible
for compensation.7 Today, every state and the District of Columbia has a victim compensation programme.
Feminists concerned about the criminal justice system’s treatment of rape and sexual assault victims
also played an important role in developing direct assistance programmes for crime victims.8 Two of the first
victim assistance programmes were rape crisis centres (in Washington, D.C., and in the San Francisco Bayarea), both established in 1972.9 These programmes contributed significantly to the victims’ movement,in part because they recognized “emotional crisis” as part of the injury suffered by victims and attracted
volunteers to provide support for victims.10
Many courageous victim-survivors also spearheaded new programmes, recognizing the need for
additional services in their communities. For example, battered women established shelters and hotlines
for other victims. In 1974, survivors of homicide victims formed “Families and Friends of Missing Persons”
in Washington state.11 Four years later, parents of a young murder victim founded “Parents of MurderedChildren” to provide support for homicide survivors. 12 And in 1980, Mothers Against Drunk Driving(MADD) was co-founded by two women whose children had been killed or injured by drunk drivers.13
By the mid-1970s, victim issues were attracting national attention. In 1975, the first national
victims’ assistance programme, the National Organization for Victim Assistance (NOVA), was formed
to help “consolidate the purposes and goals of the victim’s movement.”14 NOVA promoted networking
opportunities and sponsored training programmes for those working with victims. Similar organizations
continued to grow in strength and number, providing crisis intervention, counselling, and compensation forvictims.
Also in the 1970’s, prosecutors’ offices and law enforcement agencies began hiring victim-support
personnel, who assisted with referrals to social service agencies and provided victims with notification ofcase-related events.15 With increasing frequency, prosecutors sought victims’ views about court-related
events such as bail determinations, plea bargains and sentencing matters.16
Victims’ issues captured the attention of the White House in 1981, with President Ronald Reagan
announcing the first “National Crime Victims Rights Week,” to honour victims and their surviving family
members. A year later, President Reagan established a Task Force on Victims of Crime.17 The Task Forceheld six hearings nationwide and made numerous recommendations for improving the treatment of victims
5 See Dr. Marlene Young and John Stein, The History of the Crime Victims’ Movement in the United States , April 2005, at 2-3,

http://www.ojp.usdoj.gov/ovc/ncvrw/2005/pg4c.html.
6 Id. at 3.
7 Id.
8 Id. at 3-4.
9 Id. at 4.
10 Id. at 4.
11 Id. at 5.
12 Id.
13 Id.
14 Id. at 5.
15 Id. at 4.
16 Id.
17 See Exec. Order No. 12,360, 47 Fed. Reg. 17,975 (Apr. 23, 1982).

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and witnesses within the criminal justice system.18 For example, it recommended passage of legislation
to require victim impact statements at sentencing; protection for victims and witnesses from intimidation;
restitution in all cases absent special circumstances; and the development of guidelines for the “fairtreatment of crime victims and witnesses.”19 The task force also recommended that Congress provide
funding for state crime victims’ compensation programmes.20
Shortly after the Task Force issued its report, Congress passed the first major federal victims’ rights
law, entitled the “Victim and Witness Protection Act of 1982” (“VWPA”).21 Among other things, the VWPA
prohibited victim or witness intimidation and strengthened restitution options for victims in certain typesof offences.22 In enacting the VWPA, Congress declared that “without the co-operation of victims andwitnesses, the criminal justice system would cease to function; yet with few exceptions these individuals areeither ignored by the criminal justice system or simply used as tools to identify and punish offenders.”23
Congress also directed the Attorney General to develop and implement guidelines consistent with the
purposes of the VWPA. Accordingly, the Attorney General created the “Attorney General Guidelines forVictim and Witness Assistance” in 1985. Revised approximately every five years, the guidelines are “to befollowed by officers and employees of Department of Justice investigative, prosecutorial, and correctional
components in the treatment of victims of and witnesses to crime.”24
Two years after the passage of the VWPA, Congress enacted the “Victims of Crime Act of 1984”(“VOCA”).25 This landmark legislation established the “Crime Victims Fund,” thereby providing a stable
funding source for federal, state, local, tribal, and non-profit victim assistance programmes. Receiving notax dollars, the fund is made up of criminal fines, fees, bond forfeitures, and assessments collected fromconvicted federal offenders. The first VOCA funds were distributed in 1986. State and local governments
also received financial assistance from Congress through passage of the Justice Assistance Act in 1984.26
In 1990, Congress passed the Crime Control Act, and included within it the Victim Rights and Restitution
Act, which provided victims with a list of rights and defined a group of mandatory services.27 Although therights delineated in § 10606 were subsequently repealed by the Crime Victims’ Rights Act (18 U.S.C. §3771), the mandatory service provisions of § 10607 remain in effect. Pursuant to § 10607, at the earliest
opportunity after the detection of a crime, employees must provide information to victims on the status of
the case, address their safety concerns, and refer them to services, such as emergency medical assistanceand counselling.28
Subsequent legislation continued to expand victims’ rights. For example, Congress began to include
mandatory victim restitution provisions in the federal criminal code.29 In 1994, Congress establishedmandatory restitution provisions for the crimes of sexual abuse, sexual exploitation and other abuse ofchildren, domestic violence, and telemarketing fraud, in the Violence Against Women Act (“VAWA”).30
Twelve years later, Congress enacted the Mandatory Victim Restitution Act (MVRA), Title II of the
Antiterrorism and Effective Death Penalty Act of 199631, which made restitution mandatory for many federal
crimes, and enhanced measures for enforcing and collecting restitution.
18 See President’s Task Force on Victims of Crime, Final Report (1982).
19 Id. at 33. (1982).
20 Id. at 37.

21 Pub. L. No. 97-291, 96 Stat. 1248.

22 See 18 U.S.C. §§ 1512-1515; see also 18 U.S.C. 3579(a)(1) (1982 ed., Supp. IV). Effective November 1, 1987, the VWPA

was recodified pursuant to the Sentencing Reform Act of 1984, 98 Stat. 1987 and as a result, 18 U.S.C. 3579 became 18 U.S.C.
3663.
23 Id. Section 2 (a) (1).
24 See Attorney General Guidelines for Victim and Witness Assistance, Art. III, A. at 7.
25 42 U.S.C. § 10601 et. seq.
26 P.L. 98-473.
27 See 42 U.S.C. §§ 10606 and 10607.
28 42 U.S.C. § 10607 (c)(1)-(3).
29 See e.g. 18 U.S.C. § 228 (“Child Support Recovery Act of 1992”) (imposing mandatory restitution for those convicted ofwillfully failing to pay child support).
30 See 18 U.S.C. Section 2248, 2259, 2264, 2327.
31 Pub. L. No. 104-32, 110 Stat. 1214 (Apr. 24, 1996).

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Laws providing protection for specific categories of victims were enacted with increasing frequency.
For example, the Violence Against Women Act (“VAWA”), created numerous grant programmes to assist
domestic violence victims, initially authorizing $1 billion over five years.32 Subsequent amendments
to VAWA in 1996 and 2000 made domestic violence and stalking federal offences.33 In 2000, Congress
legislated protections for immigrant victims of domestic violence, human trafficking and other violent crimesin the Victims of Trafficking and Violence Protection Act,34 creating “T visas” for victims of severe forms of
trafficking and “U” visas for victims of violent crime who co-operate with the investigation and prosecution.
After the Oklahoma City bombing, Congress passed the Justice for Victims of Terrorism Act, establishingspecific programmes for immediate crisis response to victims, and inter alia , providing terrorism victims theright to participate in criminal trials.35
Congress also enacted specialized provisions to protect child victims and witnesses during the court
process, such as creating alternatives for live, in-court testimony in appropriate circumstances and requiring
documents containing children’s names to be filed under seal. 36 Laws to protect children from sexual
predators were passed as well.37 Elderly victims also received protections through the Older Americans Act
Reauthorization of 2006, requiring the United States Department of Health and Human Services to develop
a long-term national response plan for elder abuse prevention, intervention, and treatment.
Despite the significant number of laws protecting victims, many victims’ rights advocates wereconcerned that existing statutory provisions were inadequate and thus began to “push for a constitutional
amendment.”38 The first proposal to create a Crime Victims’ Rights amendment to the United States
Constitution was introduced in 1996 by Senators Dianne Feinstein (Democratic Party-California), and John
Kyl (Republican Party-Arizona). The proposal was ultimately withdrawn due to a lack of support. Eight years
later, the amendment was re-introduced in Congress, but withdrawn again due to insufficient support. A few
months later, however, Congress passed a comprehensive rights bill for federal crime victims, calling it the“Scott Campbell, Stephanie Roper, Wendy Preston, Loarna Gillis, and Nila Lynn Crime Victims’ Rights Act,”in honour of five homicide victims. Known simply as the “Crime Victims Rights Act,” or the “CVRA,” thelaw codifies eight rights for federal crime victims, and includes provisions enabling victims to enforce theirrights both at the trial and appellate levels.39 Under the CVRA, a “victim,” is defined as “a person directly
and proximately harmed as a result of the commission of a Federal offense or an offense in the District ofColumbia.”40 The rights afforded to federal crime victims by the CVRA are as follows:
1.	The right to be reasonably protected from the accused;2	The right to reasonable, accurate, and timely notice of any public court proceeding, any parole
proceeding, involving the crime or of any release or escape of the accused;
3.	The right not to be excluded from any such public court proceeding, unless the court, after receiving
clear and convincing evidence, determines that testimony by the victim could be materially altered if
the victim heard other testimony at that proceeding;
4.	The right to be reasonably heard at any public proceeding in the district court involving release, plea,
sentencing, or any parole proceeding;
5.	The reasonable right to confer with the attorney for the Government in the case;
32 See Pub. L. No.103-322 (1994).
33 See 18 U.S.C. § 2261A.

34 See 22 U.S.C. §§ 7101-7110; 8 U.S.C.§ 1101(a)(15)(U).
35 Pub.L. No. 104-132 (1996).
36 18 U.S.C. § 3509.

37 See e.g. PROTECT Act of 2003, Pub. L. No. 108-21 (2003) (establishing a national Amber Alert coordinator and prohibiting

foreign child sex tourism); see also “Adam Walsh Child Protection and Safety Act,” Pub. L. 109-248 (2006) (establishing sex
offender registration requirements and making failure to register a felony).
38 See e.g., Cassell, Paul G., Recognizing Victims in the Federal Rules of Criminal Procedure: Proposed Amendments in Lightof the Crime Victims’ Rights Act, 2005 B.Y.U.L. Rev. 835, 848-850 (2005).
39 See 18 U.S.C. § 3771.
40 “In the case of a crime victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardiansof the crime victim or the representatives of the crime victim’s estate, family members, or any other persons appointed as
suitable by the court, may assume the crime victims’ rights under this chapter, but in no event shall the defendant be named assuch guardian or representative.” 18 U.S.C. § 3771 (e).

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6.	The right to full and timely restitution as provided in law;
7.	The right to proceedings free from unreasonable delay;
8.	The right to be treated with fairness and with respect for the victim’s dignity and privacy.
Additionally, the CVRA directed the Department of Justice to designate an authority to receive andinvestigate complaints from federal crime victims alleging violations of their rights.41 Accordingly, DOJ
established the Office of the Victims’ Rights Ombudsman (VRO) in January 2006, within the Executive
Office for United States Attorneys. Victims of federal crimes can file complaints with the VRO against
any employee located in a United States Attorney’s Office, or in one of thirteen DOJ components. The
VRO maintains a public website providing information about the programme and the CVRA, and detailingprocedures for filing complaints.42

IV. VICTIM ASSISTANCE IN FEDERAL PROSECUTORS’ OFFICES AND LAW
ENFORCEMENT AGENCIES
Victim assistance personnel in the United States can generally be divided into two categories: “systembased” advocates, who work in prosecutors’ offices or law enforcement agencies and “community-based”
advocates, who work for non-profit or community organizations. The role of “system-based” advocates is toprovide victims with information and support during the various stages of the criminal justice system - i.e.
investigation, prosecution, and post-conviction. The following is a brief description of some of the systembased programmes operating in federal prosecutors’ offices and law enforcement agencies in the UnitedStates.

A. United States Attorneys’ Offices
Every United States Attorney’s Office (“USAO”) has a Victim-Witness Program, usually led by a Victim
Witness Coordinator (“VWC”) and staffed with additional victim witness personnel. The Executive Officefor United States Attorneys, through its Law Enforcement Coordinator/Victim Witness Staff, provides
support and guidance to victim witness personnel in the USAOs. Providing information, support andassistance to federal crime victims and witnesses, these highly-skilled professionals are often a source ofgreat comfort for victims. Examples of federal crimes in which victim support is often provided include bankrobberies, child pornography, financial crimes, identity theft, hate crimes, terrorism, or violent crimes that
occur on federal or Native lands such as homicide, sexual assault, domestic violence, or child abuse.
Victim witness personnel assist victims in numerous ways, including notifying them of court proceedings
and significant case developments, providing counselling referrals, locating temporary housing, and assistingwith victim impact statements. VWCs are available to explain the court process, including the reasons forany delay, and often attend court proceedings with victims, providing a comforting presence while victims
testify or listen to difficult testimony about their loved ones. Prior to sentencing hearings, victim witness
personnel are available to answer victims’ questions about victim impact statements.
Victim witness personnel also address witness security concerns, make travel arrangements and ensure
reimbursement for required court appearances. Working closely with fellow law enforcement advocatesand community victim service providers, Victim Witness personnel often serve on task forces or multidisciplinary teams and often develop innovative programmes designed to enhance rights and services for
specific victim populations. By way of example, the Victim Witness Program in the United States Attorney’s
Office for the Western District of Wisconsin, with funding and support from the Office for Victims of Crime,
provided community training and developed an educational video that addressed the devastating problem
that methamphetamine addiction can have on children.

B. Federal Bureau of Investigation (FBI) - Office for Victim Assistance (OVA)The Office for Victim Assistance (OVA) within the Federal Bureau of Investigation (FBI), is located at
FBI headquarters in Washington, D.C., and is responsible for assisting victims of crimes investigated by the
41 See 18 U.S.C. § 3771(f)(1) and (2).

42 See www.justice.gov/usao/eousa/vr/index.html.

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FBI.43 OVA manages the daily operational aspects of its Victim Assistance Program (VAP) in 56 FBI field
offices and international offices. Among its other responsibilities, OVA provides emergency assistance tovictims of terrorist attacks; co-ordinates victim notification in child pornography cases; oversees the forensic
child interviewing programme; and provides specialized assistance to Native American victims of crime.
OVA also manages and supports 122 Victim Specialists located within the FBI field offices, whoprovide direct assistance to federal crime victims. The FBI requires that Victim Specialists have extensive
knowledge and experience in crisis intervention, social services, and victim assistance. These professionals
also provide notification of case events to victims and refer them to services within their communities suchas compensation programmes, rape crisis centres, and homicide bereavement groups.
Victim Specialists are often a crucial support system for victims and family members, helping them atsome of their most vulnerable moments. In the aftermath of the Mumbai terrorist attacks, for example,
Victim Specialists quickly assisted in the identification of American victims, arranged for repatriation of
those who had died, and helped evacuate those who were injured.44

C. United States Immigration and Customs Enforcement Agency (ICE)ICE investigates a significant number of federal crimes involving human trafficking, child exploitation,
child sex tourism, genocide, identity theft, and telemarketing fraud. ICE’s Victim Assistance Program,consisting of fifteen full-time Victim Assistance Coordinators in the field, 350 collateral duty Victim
Assistance Coordinators and five headquarters staff, address the physical, psychological, and financial harmsthat victims often suffer. ICE works often with human trafficking victims and child sex tourism victims,
providing them shelter, food, interpreter services, and other basic services in the immediate aftermath ofthese horrific crimes.
D. Additional Victim Assistance Programmes within DOJ and Federal Government Agencies
In addition to the agencies described above, many other DOJ components and federal agencies haveprogrammes to support victims of federal crimes, including but not limited to the Criminal Division, theCivil Rights Division (Criminal Section), the Drug Enforcement Agency, the U.S. Parole Commission, theBureau of Prisons, the Bureau of Alcohol Tobacco and Firearms, the Office of Justice for Victims of Overseas
Terrorism, the United States Postal Inspection Service, the Department of State, the Bureau of IndianAffairs and the U.S. Military.
V. DOJ COMPONENTS THAT PROVIDE LEADERSHIP ON VICTIM ISSUES AND GRANTSFOR VICTIM ASSISTANCE PROGRAMMESAssisting crime victims and protecting their rights, is a “high priority for Attorney General Eric Holder
and the Department of Justice”. DOJ personnel work hard every day to provide victims with the rights andservices to which they are entitled, notifying them of court proceedings, ensuring that their voices are heard
in court, and being available to listen to their concerns. DOJ components and offices that work on mattersassisting crime victims are too numerous to mention. Accordingly, this paper will focus on three offices that
support a nationwide effort to assist victims of crime in all levels of the criminal justice system.

A. Office of Justice Programmes
Within the Department of Justice, the Office for Justice Programs (OJP) provides leadership and develops
programmes to increase public safety and improve the fair administration of justice. OJP is comprised offive bureaus and two programme offices: the Bureau of Justice Assistance, the Bureau of Justice Statistics;
the National Institute of Justice; the Office of Juvenile Justice and Delinquency Prevention, the Officefor Victims of Crime, the Community Capacity Development Office, and the Sex Offender Sentencing,
Monitoring, Apprehending, Registering, and Tracking Office (SMART). 45 All of OJP’s bureaus andcomponents develop programmes and strategies to assist victims and prevent victimization; however this43 See www.fbi.gov/hq/cid/victimassist/resources.htm.

44 See Transcript of testimony of Mary Lou Leary, Acting Assistant Attorney General, Office of Justice Programs, Departmentof Justice, before the House Judiciary Committee, Subcommittee on Crime, Terrorism and Homeland Security ( 29 September,2009).
45 See www.ojp.gov.

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paper will highlight the work of the Office for Victims of Crime.

B. Office for Victims of Crime
The Office for Victims of Crime (OVC) was established within OJP through an amendment to the Victimsof Crime Act of 1984. OVC’s primary mission is to “enhance the nation’s capacity to assist crime victims”
and to “be a leader in transforming attitudes, policies, and practices that encourage justice and healing forvictims.”46 OVC also provides training and technical assistance to victim service providers, prosecutors, law
enforcement officers, and other professionals, and also “works to raise awareness of victims issues” and “topromote compliance with victims’ rights laws.”47 OVC also offers a wealth of information on its website, suchas a comprehensive directory of victim assistance resources. Sponsoring national and state victim assistanceacademies that provide academic instruction for victim service providers, OVC also offers web forums onsuch topics as vicarious trauma, working with survivors of traumatic events, and serving victims of stalking.
Perhaps OVC’s most recognizable role is its administration of the Crime Victims Fund (“the fund”).
Notably, no taxpayer dollars are used to support the fund, as it is comprised entirely of criminal fines, bailbond forfeiture, penalties, fees, and special assessments collected from federal convicted offenders, aswell as private donations. Congress imposed a cap on distributions from the fund in 2000, to control large
fluctuations in deposits.48 In fiscal 2010, the cap was set at $705 million.49
Monies in the fund are disbursed pursuant to a carefully established allocation process. Earmarks are
deducted from the fund first as follows: (1) Children’s Justice Act grants, including formula grants to states
through the United States Department of Health and Human Services, and discretionary grants to tribes forservices and programmes to improve the investigation and prosecution of child abuse and neglect cases in
American Indian and Alaska Native communities; (2) Victim Witness Coordinators in U.S. Attorneys Offices;(3) Victim Specialists in the FBI, and (4) the federal Victim Notification System.
Funds are disbursed to state victim compensation programmes through formula grants. The Director of
OVC is required to make an annual grant to eligible crime victim compensation programmes that is equal
to 60 percent of the amount awarded by the state programme to victims of crime from state revenues
during the fiscal year preceding the year of deposits in the Fund (two years prior to the grant year), otherthan amounts awarded for property damage. If the amount in the Fund is insufficient to award each state
60 percent of its prior year’s compensation payout from state revenues, all states will be awarded thesame reduced percentage of their prior year payout from the available funds other than amounts awarded
for property damage. The distributions may not exceed 47.5 percent of the remaining Crime Victim
Fund balance (available after earmarks and discretionary funds). VOCA requires all state compensation
programmes to offer, at a minimum, “reimbursement for expenses related to medical and dental care,counselling, funeral and burial services, and lost wages.”50 However, these programmes may reimburse
victims for additional expenses such as “travel, temporary lodging, crime scene cleanup, and dependentcare.” 51
State Victim Assistance grants receive 47.5 percent of the amount remaining after earmarks, plus any
amounts not used for victim compensation grants. States often award sub-grants to victim service providers
in criminal justice agencies, noncriminal justice government agencies, (including hospitals, public housing
offices, and social service and mental health agencies); private, non-profit organizations, including rape crisis
centres, shelters, mental health organizations, religious organizations, hospitals and others; and American
Indian tribes or organizations. During fiscal 2007 to 2008, victim assistance funding supported over 33.7
million specific services to more than 7.89 million victims of crime.52
46 See www.ovc.gov./about/offices/ovc.htm.

47 See OVC Report to the Nation, Fiscal Years 2007 - 2008, at ix.
48 See OVC Report to the Nation (2009), at 4.
49 Id.

50 Id. at 17.

51 Id. Maximum reimbursement amounts for these categories must be established by each state and territory receiving thesefunds. OVC Report to the Nation (2009) at 17.

52 See OVC Report to the Nation (2009), at 23.

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OVC discretionary grant amounts are calculated after all programme area allocations are determined,
except for formula grants, and may total 5 percent of the remaining balance.53 Discretionary grants serve avital purpose, helping to meet “emerging needs” and filling “gaps in existing services” as well as support
for “model programs to help strengthen the skills and abilities” of victim service providers.54 Examples
of innovative discretionary grants include the development of Sexual Assault Nurse Examiner (SANE)
programmes and Sexual Assault Response Teams (SART); promoting cultural change in law enforcement’s
response to victims; assisting victims with disabilities; and supporting resource centres that provide
counselling and legal assistance for identity theft victims.55 Additionally, OVC receives specially designatedfunds that are not part of the Crime Victims Fund, to support “the development or enhancement ofemergency services to assist victims of severe forms of trafficking.”56
OVC is also authorized to set aside $50 million in an Antiterrorism Emergency Reserve account tosupport programmes to assist victims of terrorism and mass violence, including the International Terrorism
Victims Compensation Program. In recent years, these funds have supported crisis response and victim
compensation in the aftermath of several mass shooting incidents in the United States in which several
people were killed.

C. The Office on Violence Against Women (OVW)
Created in 1995, the Office on Violence Against Women (OVW) assists in developing the nation’s
capacity to reduce violence against women through the implementation of the Violence Against Women Act.
Through financial and technical assistance to communities across the U.S., OVW supports programmes,
policies, and practices aimed at ending domestic violence, dating violence, sexual assault, and stalking.57
Currently, OVW administers two formula grant programmes and 17 discretionary grant programmes, andto-date has awarded over $4 billion in grants and co-operative agreements.58
OVW has also developed a number of special initiatives through its grant programmes and collaborative
projects. One such initiative is the “National Domestic Violence Hotline,” which is administered by theUnited States Department of Health and Human Services. Hotline advocates take an average of 21,000 calls
per month nationwide, from domestic violence victims and their friends and family members. The advocatesprovide immediate crisis counselling and connect victims with services in their local communities.59
OVW has also co-ordinated a series of projects to encourage communities to develop sexual assault
forensic medical exams that are designed to minimize trauma to victims and to increase the chances ofsuccessful prosecution of these cases.60 Toward this end, OVW assisted in developing a national protocol for
Sexual Assault Medical Forensic Examinations (the SAFE Protocol), as well as national training standards
for sexual assault nurse examiners (SANE).61 It currently funds the SAFE Technical Assistance Project,
an ongoing collaboration with the International Association of Forensic Nurses, to assist communities in
implementing the SAFE Protocol.62 OVW also supports initiatives to prevent elder abuse, stalking, and teen
dating violence. Recently, OVW partnered with the Vera Institute of Justice in an effort to meet the needs ofdeaf victims of domestic violence.63

53 Id. at 8.

54 Id. at 47.

55 Id. at 48-49, 52-53, 57-58.
56 Id. at 51.

57 See www.ovw.usdoj.gov/overview.htm

58 Id. http://www.ovw.usdoj.gov/overview.htm.

59 See Statement of Catherine Pierce, Acting Director, Office on Violence Against Women, United States Department ofJustice, before the United States Senate Committee on the Judiciary, at 2 (10 June 2009).
60 Id. at 5.
61 Id.
62 Id.
63 Id. at 7.

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VI. NON-GOVERNMENTAL VICTIM SUPPORT GROUPS AND ORGANIZATIONS
A. Advocates
Many community-based advocates provide local support to victims, regardless of whether these victims
report the crimes to law enforcement agencies. For example, sexual assault advocates often answer victims’questions about the law enforcement reporting process, explaining medical exams and evidence collection
procedures, and help them to understand their options for treatment of sexually transmitted diseases.
Community-based advocates also provide support to domestic violence victims through free counselling,safety planning assistance, and shelter referrals. Many community-based advocates help domestic violenceand stalking victims obtain protection orders as well.
B. National Victim Assistance Organizations
Grassroots and other community organizations have been essential to establishing a strong victim
assistance infrastructure in the United States. Many national programmes began as small collections ofvictims and survivors, passionate about helping fellow victims. Below is a brief description of just a few
of the organizations that provide assistance to victims, family members, service providers, and allied
professionals.
1. National Center for Victims of Crime (NCVC)
Organized in 1985, NCVC is a non-profit organization that works with community groups and criminal
justice agencies throughout the United States. NCVC provides direct services and resources to victims ofcrime, advocates for resources and for victims’ rights’ laws and public polices; and provides training andtechnical assistance to victim service organizations, counsellors, criminal justice professionals, and others.64
NCVC also maintains “Victim Law,” a comprehensive, online database of victims’ rights laws and casesummaries.
2. National Center for Missing and Exploited Children (NCMEC)Founded in 1984, NCMEC was established as a private, nonprofit organization to assist in the preventionof child abduction, endangerment and sexual exploitation. NCMEC operates a 24-hour toll-free hotline thattakes reports of missing children and receives leads in ongoing investigations. It also provides training,technical assistance and public outreach on the prevention, investigation, and prosecution of cases involving
missing and exploited children.
3. RAINN (Rape Abuse and Incest National Network)
The largest anti-sexual assault organization in the United States, RAINN sponsors numerous
programmes to assist victims of sexual assault, rape and incest. RAINN operates a 24-hour National Sexual
Assault Hotline (both a telephone and on-line version) involving a collaboration of more than 1,100 local rapecrisis centres. The organization partners with celebrities to deliver sexual assault prevention awarenessprogrammes.65
4. National Crime Victims’ Law Institute (NCVLI)NCVLI was founded in 1997 as a national resource for crime victims and their lawyers, and to assist themin asserting victims’ rights in criminal and civil matters.66 Since 2002, NCVLI has received funding from DOJ,
through the Office for Victims of Crime, to support a comprehensive, national effort to advance the rights
of victims. The centerpiece of this effort is a network of pro bono legal clinics that NCVLI supports acrossthe country which provide direct legal assistance to crime victims in criminal court proceedings in theenforcement of their statutory rights at the state, federal, and tribal levels. In federal court cases, the clinics
represent victims in the enforcement of their rights under the Crime Victims Rights Act. Along with thefunding to the clinics, NCVLI provides them with intensive technical assistance in furtherance of their work.
Additionally, as part of its overall initiative to advance crime victims’ rights, NCVLI provides education andtraining on victims’ rights, offers legal technical assistance to attorneys around the country who represent
victims in the enforcement of their rights, files amicus curiae briefs in cases nationally, convenes a national
victims’ rights training conference, publishes a bi-annual newsletter on victims’ rights litigation and issues,
64 See www.ncvc.org.

65 See www.rainn.org.

66 See www.ncvli.org/history.html.

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and facilitates a national network of attorneys and others interested in the enforcement of victims’ rights.67
5. National Crime Victim Bar Association (NCVBA)
Affiliated with NCVC, the NCVBA provides technical support to attorneys who represent crime victims
in civil actions and promotes awareness of the availability of civil remedies for victims.

VII. VICTIM ASSISTANCE DURING EACH STAGE OF
THE FEDERAL CRIMINAL JUSTICE PROCESS
Prosecutors, investigators, victim advocates, and others who work in federal agencies “engaged in thedetection, investigation, or prosecution of crime shall make their best efforts to see that crime victims arenotified of, and accorded the rights” set forth in the Crime Victim Rights Act.68 Federal employees are also
required, pursuant to 42 U.S.C. § 10607, to provide victims with notice, information and services, and withall other applicable rights as provided for in other statutes or the rules of criminal procedure. Department ofJustice employees also must adhere to the guidance set forth in the Attorney General Guidelines for Victim
and Witness Assistance (“AG Guidelines”).
Article IV of the AG Guidelines provides detailed steps for addressing victims’ needs and concerns
at the investigative, prosecution, and corrections stages of the criminal justice process. In addition, theAG Guidelines provide instructions and discuss considerations for working with specific categories ofvictims, including children and victims of domestic violence, sexual assault, stalking, identity theft, humantrafficking, terrorism and other mass casualties.69 As an overarching principle, victims must be treated with
fairness, dignity, and respect and the AG Guidelines provide that a strong presumption exists in favour ofproviding rather than withholding assistance and services to victims and witnesses of crime.”70

A. Investigative Stage
1. Information, Notice, and Referrals to Services
During the investigative stage of a case, responsible officials (ordinarily case agents), must identify
victims “at the earliest opportunity after the detection of a crime at which it might be done without
interfering with the investigation.”71 Responsible officials must also provide identified victims with a list ofrights and available services, along with the name and contact information of a person who is available toanswer the victims’ questions.72 In addition, victims must be provided information about where to receive
emergency medical or social services; the availability of restitution or other relief (including crime victim
compensation programmes); counselling programmes; the right to make a statement about pretrial releaseof a defendant in cases involving interstate domestic violence, violation of a protection order, or stalking
and the availability of services for victims of these crimes; the availability of payment for medical testingin sexual assault cases, the option for being included in the automated Victim Notification System, andavailable protections from intimidation or harassment.73
Information about the status of the investigation shall be provided to the victim, “to the extent that it isappropriate and will not interfere with the investigation;” and the victim shall be notified of the suspect’sarrest.74 Responsible officials shall also ensure that any property of the victim that is being held for evidence
is maintained in good condition and ultimately returned to the victim.75 Further, if requested by a victim,
responsible officials shall assist in notifying the victim’s employer if the crime causes the victim to misswork, or the victim’s creditor, if the crime results in the victim’s inability to make timely payments.76
67 Id.

68 See 18 U.S.C. § 3771(c)(1).

69 See AG Guidelines, Art. VI - X, pp. 48-74.

70 Id. Art. II. B., a t p. 7; see also 18 U.S.C. § 3771(a)(8).
71 Id. Art.IV.A.2., at p. 22.

72 Id. Art.IV.A.3.a.(1), at p. 23.

73 Id. Art. IV.A.3.a.(1)(a)-(k), and e, pp. 23-26.
74 Id. Art. IV.A.3.a.(3)(a)-(b), at p. 25.
75 Id. Art. IV.A.3.c., at p. 25.

76 Id. Art. IV.A.3.d.(1)-(2), at p. 25-26.

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2. Protection from Intimidation and Harassment
During a criminal investigation, victims and witnesses often express concerns for their safety. Althoughwitness security and intimidation are common in drug trafficking, homicide, and organized crime cases,
threats can arise in any case at any time during the investigation or prosecution. Law enforcement agencies
and federal prosecutors’ offices have several tools to address the security concerns of victims and witnesses,
although law enforcement officers should be involved in the determination of how to assist the victim or
witness.
Once a defendant has been charged, the prosecutor may, if appropriate, move for pretrial detention of
the defendant.77 The prosecutor also may ask the court to order the defendant to have no contact withthe victim or witnesses.78 As yet another measure, prosecutors may seek a temporary restraining orderprohibiting the defendant from harassing the victim or witness.79 During court proceedings, a prosecutor
or victim witness advocate should ensure that a separate waiting area is made available to a victim or
witness so that he or she does not have to come into contact with the defendant or his or her associates.80
In addition, the programmes described below may also assist in addressing victim or witness security
concerns.
(i ) Emergency Witness Assistance Program
Relocation can be one of the most effective tools available to prosecutors in assisting threatened andintimidated witnesses. In recognition of this fact, the United States Department of Justice created theEmergency Witness Assistance Program (“EWAP”) in 1977. The purpose of this programme is to provide
United States Attorneys Offices (“USAOs”) a critical tool in assisting witnesses on an emergency basis “toensure their well-being and that they will be available for trial, other court proceedings, or activities related
to an ongoing case.”81 The EWAP also addresses the “physical, mental, or emotional reservations” of awitness or prospective witness regarding their co-operation with the investigation and prosecution.82
Each USAO has its own protocol outlining permissible uses of EWAP funds. Decisions as to how, when,
and whether to use the funding are left to the discretion of individual USAOs. Examples of expenses that
may be requested through the EWAP include, but are not limited to: transportation to permit a witness toleave his or her neighbourhood in order to get away from the danger area; temporary housing or moving
expenses; temporary subsistence (consisting of a reasonable portion of the permissible federal per diemamount for the location); emergency telephone service to permit the witness to remain in touch with the
USAO; and transportation costs for school or immediate medical or counselling needs.83
EWAP’s purpose is not to provide physical protection for a witness, and EWAP services do not include
protective services or a law enforcement presence.84 Additionally, a person’s participation in the EWAP does
not relieve him or her of any responsibilities with regard to debt, custody, child support, court, or otherobligations. EWAP is considered “a fund of last resort” and is limited to those witnesses who are frightened
and in danger.85(ii ) The Federal Witness Security Program
Another useful tool in assisting threatened or intimidated witnesses is the Federal Witness Security
Program, created by Attorney General Robert Kennedy in the 1960s to protect witnesses willing to testify
against organized crime defendants.86 Since the programme’s inception, more than 8,000 protected witnesses
77 See 18 U.S.C. § 3142.

78 See 18 U.S.C. § 3142(C) (1)(B)(v).

79 See 18 U.S.C. § 1514; see also AG Guidelines, Art. VII.B.4.
80 42 U.S.C. § 10607 (c)(4).

81 See Gaines, Crystal, “Witness Intimidation,” United States Attorney’s Bulletin, January 2003 at 9.
82 Id.

83 Id. at 9.
84 Id.
85 Id.

86 See Ruleman, Eileen, “Witness Security and Special Operations Unit,” United States Attorneys’ Bulletin, January 2007,

Vol. 55, No. 1, at 7.

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have testified against members of major organized criminal groups, resulting in numerous convictions.87
Further, no participant who has followed the programme’s rules has been killed or seriously injured due tohis or her co-operation with the government.88
The current programme is administered pursuant to 18 U.S.C. §§ 3521-3528, the “Witness Security
Reform Act of 1984” as well as guidelines established by the Attorney General pertaining to theprogramme.89 The Office of Enforcement Operations (OEO) within DOJ is in charge of administering the
programme, with the United States Marshals Service (USMS) responsible for the relocation components ofthe programme.90
The Witness Security Program is a programme of “last resort,” and applicants must meet strict criteria
before they are approved for the programme.91 Applications on behalf of witnesses must be submitted andsigned by the United States Attorney in the federal jurisdiction where the investigation or case involving thewitness is pending. Applications must contain the following information, to enable OEO to evaluate whether
acceptance into the programme is necessary: the significance of the case must be clearly demonstrated; theimportance of the testimony that the witness will provide, and the lack of alternative sources for it, must
be shown; the existence of a bona fide threat against the life of the witness must be demonstrated; andassurance must be given - if the witness is to be relocated rather than incarcerated - that any danger thewitness might pose to a new community is outweighed by the benefits to be gained by his or her testimony.
Additionally, the investigating agency sponsoring the applicant must submit a threat assessment signed
by management personnel from the investigating agency’s headquarters that details the believed threat to
the witness based on his or her co-operation. If a witness (and/or any family members of the witness) will
be relocated to a new community, the threat assessment also must contain information about any risk thewitness, as well as the adult family member, may pose to the new community.92 Moreover, USMS inspectors
must conduct an interview of non-prisoner applicants as well as any adult family member of the witness
who will be relocated, to assess whether they are appropriate candidates for the programme.93 Finally,a psychologist conducts an evaluation of each witness and family member of the witness who is being
sponsored for relocation through the programme.94
A majority of the programme’s participants are prisoner-witnesses who must serve their prison time
before being given a new identity and placed in the programme. While they are still in prison, the witnesses
are separated from other prisoners who may represent a threat to them. To address the security needsof prisoner-witnesses who cannot safely be placed in a general inmate population, the Bureau of Prisons
maintains “Protective Custody Units,” which are like “prisons within prisons.”95 Prisoner-witnesses whosefamilies may be at risk as a result of the witness’s co-operation, may also be eligible for protection throughthe USMS relocation programme.

B. Prosecution Stage
Beginning with the filing of charges and continuing through the appeals and post-conviction process,responsible officials in prosecutors’ offices (usually prosecutors or victim witness personnel), shall ensurethat victims receive notice and information regarding case events and available services, and shall address
any security concerns victims may have.96 Once charges are filed, prosecutors must advise victims of theirrights and that they can seek the advice of an attorney with respect to their CVRA rights.97
87 Id.
88 Id.

89 See USAM 9-21.000.
90 Ruleman at 7-9.
91 Id. at 7.
92 Id. at 8.
93 Id.
94 Id.

95 Id. at 8.

96 AG Guidelines, Art. IV.B.2., at 27.
97 Id. Art. IV.B.2.b. (1) - (2), at 27.

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1. Right to NoticeOnce charges have been filed, prosecutors’ offices are responsible for notifying victims of the role of thevictim in the criminal justice process, their right to attend trial, and for providing information on services
and case events, including the scheduling of public court proceedings, the filing of charges, the release or
escape of the accused, the entry and acceptance of guilty pleas, trial verdicts, and sentencing proceedings.98
To assist with notification requirements, DOJ supports an automated, nationwide Victim Notification System(VNS) in federal cases. VNS is also used by the FBI, the United States Postal Inspection Service, and the
Bureau of Prisons to assist them in meeting their notification obligations. Federal crime victims may electto receive notice through VNS via mail or e-mail, and may view case information online through a passwordprotected Internet site.
2. Right to Consult with a Government Attorney
A federal crime victim has the “reasonable right to confer with the attorney for the government in thecase,” but this right “shall not be construed to impair prosecutorial discretion.”99 In general, prosecutors
should be available to consult with victims regarding “major case decisions such as dismissals, pre-trial
release of the defendant (where appropriate), plea negotiations and pretrial diversion.100 At the request of
victims, prosecutors and victim witness co-ordinators often meet with victims by telephone or in person, toaddress their concerns and questions.
3. Right to be Heard
Under the Crime Victims’ Rights Act, federal crime victims have a “right to be reasonably heard” at any
public hearing involving the release, plea, sentencing or parole of the defendant.101 Thus, if victims wish toprovide a statement describing their views, for example, on whether a defendant should be released pending
trial, or the terms of a plea agreement, the prosecutor shall request that the Court permit the victim to beheard.
Most often, sentencing hearings are where victims seek to provide their views to the court. Prior tosentencing hearings, a responsible official shall notify victims that the United States probation officer
is required to prepare a pre-sentence investigation report that includes a section on victim impact, andthat official shall provide the victim with contact information for the probation officer.102 Victim Impact
Statements provide a powerful mechanism for victims to express how they feel about what happened tothem as a result of the crime, and many victims choose to submit them. Victims may also express theirviews to the Court in person at the sentencing hearing.103
In addition, the CVRA provides victims with the right to “full and timely restitution,” and prosecutors,
victim-witness co-ordinators, investigators, probation officers, clerks of court, and financial litigation units
within USAOs, must work together to ensure that a victim receives the restitution to which he or she isentitled.104
4. Attending Court Proceedings
Responsible officials also must inform victims of their right to attend the trial, regardless of whether thevictim will testify at trial or present information at sentencing.105 Recognizing the importance to victims ofattending court proceedings involving their victimization, Congress legislated the “right not to be excluded
from any such public court proceeding,” unless the court determines “by clear and convincing evidence,”that a victim-witness’s testimony would be materially altered by exposure to the testimony of other
witnesses.106 As noted during the floor debate prior the CVRA’s passage, the right to attend hearings andtrials is “so important because crime victims share an interest with the government in seeing that justice is
98 AG Guidelines, Art.IV.B.2.b.(3)-(6).

99 AG Guidelines, Art.IV.B.2.c(1), at p. 29.
100 Id.

101 18 U.S.C. § 3771(4).

102 AG Guidelines, Art. IV.B.3.a.(1)-(2), at 30.
103 See Fed.R.Crim.P. 32(i)(4)(B).

104 AG Guidelines, Art. V.A., at 37.
105 AG Guidelines, Art.IV.B.2.b(3).
106 18 U.S.C. § 3771 (a)(3).

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done in a criminal case.”107 In at least two reported cases, federal prosecutors have filed motions to ensurethat victim-witnesses are not excluded, unless the court finds by clear and convincing evidence that theexclusion is necessary.108

C. Corrections Phase
After a defendant is convicted and sentenced, a responsible official (usually a representative from the
Bureau of Prisons (BOP)), must provide a victim with notice of (i) the date on which the offender will be
eligible for parole, and the scheduling of any such release hearing; (ii) the escape, work release, furlough
or any other form of release of the offender; and (iii) the death of the offender, if the offender dies while incustody.109 BOP maintains on its website, a “federal inmate locator,” which provides information about thelocation of every federal inmate within the BOP system.110 If a defendant is being detained pre-trial pending
prosecution, notification of the defendant’s custody status is usually provided by the USAO.
D. Parole Process
Victims also have the right be notified of parole hearings, and to be heard at these proceedings.111
Moreover, within 30 days of an inmate’s release from prison, responsible officials shall provide victims with
notice of the date of release, the city and State where the inmate will be released, and contact information
for the inmate’s supervising probation officer, if applicable.112
VIII. THE VICTIM WITNESS ASSISTANCE UNIT IN THE UNITED STATES ATTORNEY’S
OFFICE FOR THE DISTRICT OF COLUMBIA
Located in the Nation’s capital, the United States Attorney’s Office for the District of Columbia (USAODC) is unique in that it prosecutes both local and federal crimes, handling well over 20,000 cases per year.
Prosecutors, victim witness staff, investigators and other support personnel meet daily with victims andfamily members of victims of all varieties of crime, such as homicide, domestic violence, identity theft,
human trafficking, and terrorism.
Many years ago, the office established a specialized Victim Witness Assistance Unit (“VWAU”) as astand-alone section. The VWAU has always been central to the work of the USAO-DC, and has always had
the strong support of the United States Attorney. The VWAU assists thousands of victims and witnesses
each year.
The VWAU is by far the largest victim witness programme in all of the United States Attorneys’ Offices.
Comprised of 26 highly trained individuals, the unit is divided into three sections: Witness Security, Victim/
Witness Specialists, and Central Services. For the past ten years, the Chief of the VWAU has been either
a prosecutor or an attorney. The Chief also provides policy and legal guidance to the office on mattersregarding victim and witness rights and services.
The Witness Security Section employs five staff members and a supervisor and addresses security
concerns raised by victims and witnesses who are threatened or perceive that they are threatened as aresult of their participation in a case. In light of the high rate of homicides, assaults and violent crime in theDistrict, along with a substantial number of criminal organizations operating in the city, witness intimidation
is a serious problem. Often, victims and witnesses are eligible for assistance through the Emergency
Witness Assistance Program, and in certain cases, the prosecutor may request that the witness be
considered for acceptance into the Federal Witness Security Program. The section also addresses prisoner
witness security concerns as well, working with the local Department of Corrections and the Bureau of
Prisons.
The VWAU’s Central Services Section is responsible for victim notification in both federal and D.C.
107 150 CONG. REC. S4268 (Apr. 22 2004)(statement of Sen. Kyl).

108 See e.g. In re Mikhel, 453 F.3d 113, 1139 (9th Cir. 2006); United States v. Johnson , 362 F.Supp.2d 1043 (N.D. Iowa 2005).
109 AG Guidelines, Art. IV.C.2(a)(2), at p. 34.
110 See www.bop.gov.

111 AG Guidelines, Art. IV.C.2.a.(3), at p. 35.
112 AG Guidelines, Art.IV.C.2.b.(4), at p. 35.

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Superior Court cases, handling tens of thousands of notifications per year. Specialists in this section also
arrange for victim and witness travel for court appearances and witness conferences, assisting a significant
number of international victims and witnesses. Section members also obtain interpreters and ensure thatwitnesses receive reimbursement for required court appearances.
The Victim/Witness Specialist Section employs 15 highly experienced victim advocates who are
stationed in various trial units within the USAO-DC. The Section is supervised by a doctor of psychology,
and several advocates are licensed clinical social workers. Victim advocates have many responsibilities,
including intake, safety planning, lethality assessment, referring victims to the crime victims’ compensation
programme and services, and accompanying them to court. The advocates are specialized, based on
their area of expertise. Several advocates work only with domestic violence victims (with one advocate
specializing in elder abuse as well), while others work only with sexual assault or child abuse victims. One
advocate works with misdemeanour victims, and two other advocates are responsible for assisting victimsof violent crimes and general felonies. There is one advocate who assists family members and loved ones ofhomicide victims, often attending court appearances on their behalf and referring them to grief counsellingand other support programmes. Another advocate is assigned to the federal crimes section where sheroutinely assists victims of trafficking, identity theft, child pornography, bank robbery and terrorism. Several
advocates are fluent Spanish speakers, and the office maintains a dedicated telephone line where Spanishspeaking victims can obtain assistance. Often, the unit posts case-updates and other information for victims
on its public website.
The VWAU also employs a highly trained child forensic interviewer, who works closely with a nonprofit Child Advocacy Center. The forensic interviewer is responsible for conducting the majority of forensic
interviews and assessments of victims and witnesses who are between the ages of two and seventeen
or are vulnerable adults. In addition, she participates in multi-disciplinary case review sessions to assist
law enforcement, prosecution, social service, and mental health professionals in determining appropriate
assistance child victims and witnesses.
VWAU staff also collaborate with law enforcement and community partners on projects designed toassist victims, such as the human trafficking task force, the fatality review board, and the Domestic Violence
Intake Center.

IX. CONCLUSION
In the nearly thirty years following the Final Report of the President’s Task Force on Victims of Crime,
the United States has made significant strides in the passage of victims’ rights laws, the creation of funding
mechanisms for victim services, and the development of programmes to address the specific needs of crime
victims. Nonetheless, there is more work to be done. Government and community partners must continue
to work together to develop innovative strategies to ease the suffering of crime victims and to make thecriminal justice process a more bearable one.

124MEASURES TO PROTECT VICTIMS IN GERMAN CRIMINAL PROCEEDINGSA SUMMARY WITH SPECIAL FOCUS ON THE KEY POINTS OF
THE SECOND VICTIMS’ RIGHTS REFORM ACT
Martina Peter*

I. INTRODUCTION
Germany has already legislated a good standard of victim protection. For the past 25 years, legal
academics and policy-makers alike have been devoting increased attention to the victim in criminal
proceedings. While the United Nations’ Declaration of Basic Principles of Justice for Victims of Crime andAbuse of Power of 29 November 19851 provided vital momentum at the international level, in the courseof these developments important legislation has been adopted in Germany. Reference should initially bemade to the “First Act for the Improvement of the Standing of Aggrieved Persons in Criminal Proceedings”
or the Victim Protection Act (Opferschutzgesetz ) of 18 December 1986.2 This was followed by legislation
which included the “Act for the Protection of Witnesses in Examinations in Criminal Proceedings and forthe Improvement of Victim Protection” or the Witness Protection Act (Zeugenschutzgesetz ) of 30 April
1998,3 and the “Act for the Improvement of the Rights of Aggrieved Persons in Criminal Proceedings” or theVictims’ Rights Reform Act (Opferrechtsreformgesetz ) of 1 September 2004.4 Vital impetus has also been
provided by the Framework Decision of the European Union of 15 March 2001 on the standing of victims incriminal proceedings.5
Considering the fact that the legal position of victims in criminal proceedings requires constant scrutiny,
and that there should be an ongoing assessment of whether any further measures to improve theirsituation appear advisable, the German Federal Government has recently taken another initiative to further
strengthen the legal position of witnesses and aggrieved persons in criminal proceedings. In February
2009, it submitted the “Draft Bill for an Act to Strengthen the Rights of Aggrieved Persons and Witnesses
in Criminal Proceedings”, or the Second Victims’ Rights Reform Act (2. Opferrechtsreformgesetz ), to theGerman Bundestag.6 After passage by the Bundestag, the Act entered into force on 1 October 2009.7 In thecourse of the legislative process, several additional measures were taken to improve victim and witness
protection.

II. LEGISLATIVE MEASURES OF THE SECOND VICTIMS’ RIGHTS REFORM ACT
A. General Aims of the Second Victims’ Rights Reform Act
The measures taken with the Second Victims’ Rights Reform Act build on the legislative measurestaken to date in Germany to improve the level of protection for victims and witnesses. In doing so, thefundamental allocation of roles stipulated in the system of criminal proceedings remains unaffected. Above
all, the aim was to achieve practical improvements for the victims of crime without challenging the right of
the accused to a fair trial in accordance with the rule of law.
In order to enhance the rights of victims and witnesses of crime in criminal proceedings as appropriate,* Legal Desk Officer, Division for Criminal Procedure (Court Proceedings), Directorate-General for the Judicial System,
German Federal Ministry of Justice.
1 Assembly Resolution 40/43 including Annex.
2 Federal Law Gazette (BGBl), 1986 Part I, p. 2496.
3 Ibid , 1998 Part I, 820.
4 Ibid , 2004 Part I, 1354.
5 Framework Decision of the European Union of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/
JHA), Official Journal of the European Communities, L 82/1.
6 Bundestag Printed Paper 16/12098 (Government Bill).
7 Federal Law Gazette, 2009 Part I, p. 2280.

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and to ensure that their existing rights are enforced more consistently, the Act pursues three central goals:
1. To strengthen the procedural rights of aggrieved persons in criminal proceedings;
2. To strengthen the rights of juvenile victims and witnesses;
3. To strengthen the rights of witnesses.
In the following, referring to the various stages of criminal proceedings, I will examine the current
situation in Germany in terms of victim and witness protection, as well as the challenges and problems
identified in drawing up the Second Victims’ Rights Reform Act and the specific measures taken with thislegislation.

B. Strengthening the Procedural Rights of Aggrieved Persons in Criminal Proceedings: Measurestaken in the Investigation and Prosecution Stage
1. The Standing of Victims as the Complaining Party in Investigation Proceedings(i ) The Situation before the Second Victims ’ Rights Reform Act entered into ForceIn accordance with section 158 (1), first sentence of the German Code of Criminal Procedure(Strafprozessordnung , StPO), anybody may file information of a criminal offence orally or in writing withthe public prosecution office, with authorities and officials in the police force, and with the local courts. In
most cases, criminal prosecution is initiated as the result of information filed by the victim.8 This is followedby the obligation on the part of the public prosecution office, which is the lead investigating agency inGerman criminal procedural law, to launch investigation proceedings and investigate the factual situation,
provided that sufficient actual indications of a crime exist. This principle, which is set forth in section 152(2) and section 160 (1) StPO, and obligates the public prosecution office to take action, is referred to as theLegalitätsprinzip , or the “principle of legality.”
After completing its investigations, the public prosecution office considers whether public charges are to
be preferred. If it does not prefer public charge, it must inform the complainant of its decision and indicate
the reasons therefore. The reasons for not preferring public charges might include:• No criminal offence has been committed.
• No evidence can be provided that the accused has committed such offence.
• O nly a minor offence has been committed and the public prosecution office therefore does notconsider it necessary to prefer public charges before a court of law.
Moreover, the public prosecution office must inform the victim of the criminal offence of the possibility ofcontesting this decision (section 171 StPO). The victim then has the opportunity to lodge a complaint within
two weeks with the Office of the Public Prosecutor General against the decision of the public prosecution
office (section 172 (1) StPO). If this complaint is dismissed by the Office of the Public Prosecutor General,the victim may move within one month to the Higher Regional Court for a decision on whether to reopen
the investigation proceedings (section 172 (2-4) StPO).
These regulations generally apply irrespective of where the criminal offence was committed. This meansthat even before now, in accordance with section 158 (1) StPO, information of an offence committed abroad
could likewise be filed with one of the domestic authorities indicated therein. For example, if the victim files
information with the police – as in the overwhelming majority of cases – the latter must forward this to thecompetent public prosecution office; under its obligation to investigate pursuant to section 160 (1) StPO,
the public prosecution office must establish how to proceed with the information, determining in particularwhether German criminal law applies to the offence according to the provisions of the General Part of the
Criminal Code (Strafgesetzbuch , StGB).
(ii ) Filing Information of a Criminal Offence committed Abroad under the Second Victims ’ Rights Reform Act
Building on the existing legal foundation, lawmakers recognized the additional need for reform in thosecases where information is filed in Germany of a criminal offence committed elsewhere in Europe.
A new section 158 (3) StPO makes clear that, for aggrieved persons who have fallen victim to a criminal
8 Bock, Kriminologie , 2nd edition, 2000, p. 134 speaks of over 90% of cases.

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offence in another Member State of the European Union, the option exists to file information of this offencein Germany. Furthermore, clear rules are now in place on how to proceed with this information – particularly
in which cases it must be forwarded to the competent authorities abroad. There was previously no such
regulation in German criminal law. This is significant for the victim particularly in cases where, due to theforeign dimension, criminal proceedings cannot be conducted in Germany.
(a) Duty to forward the information
Section 158 (3) first sentence StPO now stipulates that when an aggrieved person residing in Germany
files information with a German law enforcement agency of a criminal offence committed in another Member
State of the European Union, which for certain reasons is not prosecuted in Germany, the public prosecution
office must forward this information to the agency responsible for criminal prosecution in the otherMember State if requested to do so by the person filing the information. This may have a bearing in several
scenarios:• I nformation must be forwarded in this way when German criminal law does not apply to the offence.
 xample: A British citizen residing in Germany files information of a robbery committed against him
Ewhile on holiday in Spain, and would like this offence to be prosecuted in the United Kingdom. The
German authorities are now explicitly obliged to forward the information of this criminal offence to theUnited Kingdom.
• A need for rules was also seen in cases where a German who has been aggrieved as a result of acriminal offence committed in another Member State wants to file information of this offence, forexample, upon his return from holiday. In such cases, according to section 7 (1) StGB, Germancriminal law applies if the act is a criminal offence at the locality of its commission, or if that locality is
not subject to any criminal jurisdiction. With the new rules, the information must also be forwarded if
the criminal offence committed in the other Member State is indeed subject to German criminal law,
but the public prosecution office has made use of its powers under section 153c (1) first sentence,
number 1 StPO to dispense with prosecuting a criminal offence committed exclusively outside
the territorial scope of the Code of Criminal Procedure. An obligation to forward information has
therefore now been established for this scenario as well.
 xample: A German citizen files information of grievous bodily harm committed against his person whileEon holiday in France. The offence is punishable by both German and French law. However, the German
public prosecution office dispenses with prosecution in Germany in accordance with section 153c (1) first
sentence, number 1 StPO because the offence has been committed outside the territorial scope of theGerman Code of Criminal Procedure.
Now the authorities are explicitly obliged to forward the information of this criminal offence to France, if
so desired by the person affected.
(b) Requirement of motion
It is stipulated in sentence 1 of the new rules of section 158 (3) StPO that information must be forwarded
only if the person filing the information, i.e. the aggrieved person, makes an express motion therefore. Thisis because, as a rule, it may be assumed that information of a criminal offence will be filed in Germany, andthat the intention will be to further pursue prosecution of the offence in Germany itself.
(c) Limitations of the duty to forward
Sentence 2 of section 158 (3) StPO contains limitations of the duty to forward information.
• F irst of all, limitations apply to the duty to forward events in which both the fact of the offence itself
and the circumstances detailed by the aggrieved person when filing information of the offence,
which are relevant to its prosecution (e.g. the event of the crime and the evidence available), arealready known to the competent law enforcement agencies abroad. In this case, a duty to forward theinformation nonetheless would entail a wasted effort.

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RESOURCE MATERIAL SERIES No.81• F urthermore, sentence 2 stipulates that, in the case of minor offences, a duty to forward information
exists only if the person filing it was not in the position to file information of the offence in the otherstate.
 xample: If a victim has a piece of costume jewellery with a value of 20 euros stolen abroad, and wouldE
have been able to explain the facts of the case to the local police in a comprehensible manner, theGerman public prosecution office would not be obliged to forward information filed of the offence inGermany to the law enforcement agencies abroad. This is because forwarding this information could
entail considerable effort and costs, which in individual cases may not bear any relation to the severity ofthe offence.
•I n the case of serious criminal offences, however, such limitations do not apply. It generally
makes sense that in most cases people who have fallen victim to a criminal offence abroad will
be somewhat hesitant to file information of this offence in a country where they do not know thelanguage, and are not familiar with the institutions and how they function. It would seem unfair
to burden persons who have only just been aggrieved as the result of a serious criminal offencewith the additional decision of whether – given their individual case and the scale of the difficulties
indicated – they can be expected to file information of the offence on location.

The new rules of section 158 (3) StPO also implement the Framework Decision of the European Union
on the standing of victims in criminal proceedings,9 namely Article 11 (2) thereof.10
2. Ensuring the Safety and Privacy of Victims and Witnesses(i ) The situation before the Second Victims ’ Rights Reform Act entered into Force
Many measures have already been taken in Germany to ensure the safety and privacy of victims andwitnesses.
(a) Witness Protection Harmonization Act
One example is the 2001 Witness Protection Harmonization Act (Zeugenschutz -Harmonisierungsgesetz ,ZSHG),11 which for the first time provided a clear legal framework for witness protection arrangements.
According to section 1 ZSHG, a witness and his or her family or loved ones, if they are suited to witnesses
protection arrangements and they agree to such arrangements, can be protected if, due to their willingness
to testify, they are exposed to a threat to life, limb, health, freedom or considerable assets. Section 5 ZSHG
stipulates, inter alia , that witnesses and their families and loved ones can be provided temporarily with new
identities. As a risk-aversion measure, once the protection programme begins persons under protection
are regularly removed from their current environment and accommodated elsewhere. Other concomitantmeasures taken include the provision of psychological care, temporary assistance with living costs, ensuring
the security of those subject to protection by keeping them under observation, and the provision of new
identity documents.
(b) Provision of address details
Privacy protection for victims and witnesses in criminal proceedings is also becoming increasingly
important.
Many victims are afraid of giving their personal details when being examined. Especially in cases ofserious violent crime, victims fear that the perpetrators might find out their addresses and seek revenge.
Generally, when being examined as witnesses, victims are obliged to state their first name, surname,age, profession and place of residence (section 68 (1) StPO). This serves to avoid mistaken identity. It is also
designed to provide a reliable basis to judge credibility and to allow the parties to make inquiries.
9 Framework Decision of the European Union of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/

JHA).
10 Article 11 (2), subparagraph 2 of the Framework Decision stipulates in particular that the competent authority to which
the complaint is made, insofar as it does not itself have competence in this respect, shall transmit it without delay to thecompetent authority in the territory in which the offence was committed.
11 Federal Law Gazette, 2001 Part I, p. 3510.

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However, there are exceptions (section 68 (2) and (3) StPO). In order to guard the addresses as well as
the personal details of victims and witnesses, the previous law foresaw a range of precautions, providing fora graded system of secrecy options depending on the threat posed. This applied in principle both to witness
examinations and the bill of indictment as well as the documents in the files. In practice, however, theserules were rarely followed, above all during investigation proceedings; this led to situations where witness
addresses were misused.
Example: While surfing the Internet, an uninvolved witness stumbles upon the websites of right-wing
extremist organizations, the content of which is punishable under German criminal law. He reports thisto the police. In doing so the witness’s address is put on record. The public prosecution office launches
investigation proceedings. In being granted access to the files (through a defence attorney), the rightwing extremist organizations learn of the witness’s address. The organizations release the address on theInternet with the tip-off: denouncer lives here.
(ii ) Measures to Shield Address Details pursuant to the Second Victims ’ Rights Reform Act
The Second Victims’ Rights Reform Act maintains the graded system of secrecy options, including thebasic obligation for witnesses to provide personal details. However, the system has been better calibrated,and has also been extended as appropriate in order to make it work in practice as well to protect the rights ofvictims and witnesses.
(a) Witnesses’ addresses
Section 68 (2) first sentence StPO preserves the possibility of granting permission to allow witnesses,
when being examined, to provide their place of work, or another address at which documents can be served,
instead of their “place of residence,” i.e. their home address, if there is reason to fear that they or anotherperson will be put in danger by providing the latter. Such a threat may be assumed if a witness or a third
party has already been subject to or threatened with attack, or if a threat is perceived based on criminal
indications, criminological experience or life experience.12• F
 irst of all, the Second Victims’ Rights Reform Act has made clear that the legal interests of thewitness are at stake.
• T he amendment to section 163 (3) StPO has also made clear that the provisions of section 68 StPO,
which serve to protect witnesses’ address details, must be observed by the police even at theinvestigation stage. Before now, these provisions applied primarily to the main hearing. In practice,
the aim here is to attach greater weight to these provisions, which are in place to protect witnesses
but had rarely been followed in practice, as well as to ensure that this information is now protected
throughout the entire course of the proceedings.
• F urthermore, the right of witnesses in certain cases not to provide information on their place ofresidence, as already stipulated in section 68 StPO, has been extended as necessary – also with theaim of protecting witnesses. From now on, this option will also exist when there is reason to fearthat the witness will be subjected to improper influence. This has a bearing, for example, in the caseoutlined above, when a completely uninvolved witness reports offences committed by right-wing
extremist organisations that have already engaged in efforts to intimidate.
• T hese provisions may also have a bearing in stalking cases.
 xample: A witness substantiates that testifying as a witness and providing her home address might wellE
result in attempts to influence and harass her if this information is made available during proceedings.
The alleged perpetrator, whom she has reported, has previously engaged in stalking and the witness
has since moved. Such witnesses will now be given the option of providing e.g. the address of a victim
support organization instead of their own. The court can then summon the witness via this address.
• A lso, it is now clear that when her or his legal interests are at stake, the victim should be supported innaming an address other than her or his home address at which documents can still be served.
(b) Handling witnesses’ data and the right to inspect files
With the second Victims’ Rights Reform Act, section 68 (5) StPO now stipulates that when a threat
12 Meyer-Goßner, StPO , 52nd edition, 2009, section 68, margin number 12.

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exists, the information provided by witnesses regarding their identity or place of residence may not be madeavailable even following their testimony to those who pose a threat to the witness or victim.
 xample: During judicial examination it emerges that the accused has threatened a witness, but doesE
not yet know where she lives. However, she has already provided her address during police questioning.
From now on, she is permitted to refrain from providing her address, which means she must be
summoned via a victim support organization. Also, the authorities now need to make sure that theaccused cannot learn of her home address from inspecting the files. Any enquiries regarding credibility
must then follow in the main proceeding.
In cases where there is reason to fear that witnesses will be in danger or improperly influenced, it istherefore justified, considering all concerns worthy of protection, for them not to have to provide theirhome address. In such cases the justified interest of witnesses in keeping their home addresses secretmust generally take precedence over the interests of the other parties in the proceedings in receiving thisinformation.
In addition, it is usually not the witnesses’ place of residence that is vital in investigating the veracityof witness testimony, but rather the substance of the testimony itself and the conduct of the witness intestifying.13 The investigation of the truth is best served when a victim can testify without fear of danger or
influence.
(c) Witness’s address in the bill of indictment
Corresponding to the measures already described, and with the aim of better considering the personality
rights of all witnesses (and not only those in danger), the Second Victims’ Rights Reform Act has now madeit clear that witnesses’ addresses need not be included in the bill of indictment (section 200 (1) StPO).
The previous standard practice in Germany was to provide the full addresses in the bill of indictment of
witnesses named therein. Several victim support organizations have complained that this automaticallyreveals the addresses of all witnesses to the accused in every proceeding, since according to section 201 thebill of indictment is to be communicated to the accused.
With the Second Victims’ Rights Reform Act, section 200 (1) third sentence StPO now stipulates that thefull address need not be stated when naming witnesses in the bill of indictment.
In the overwhelming majority of cases it is not necessary for the defendant to know witnesses’
addresses. However, should this be necessary in specific cases for the purpose of verifying credibility, thedefendant can obtain this information from the files upon inspection.
3. Providing Information for Victims of Crime
The right of victims to information in criminal proceedings is of singular importance even at theinvestigation stage. Indeed, people can exercise their rights only if they are aware of them.
(i ) Information Requirements according to the Previous Law
The formerly applicable law already contained comprehensive information requirements for victims ofcrime. According to section 406h StPO, victims were to be made aware in particular of the following rights:• T he possibility according to section 406d StPO of being notified, upon application, not only of theoutcome of proceedings, but also whether custodial measures against the defendant or convictedperson have been ordered or terminated, and whether relaxation of the conditions of detention
or leave from detention has been granted for the first time; this applies if the victim can show alegitimate interest in receiving this information and if there is no overriding interest on the part of the
defendant or convicted person which constitutes an obstacle to providing such information.
• T he possibility as stipulated in section 406e StPO for an attorney to inspect the court files on behalfof the victim, and/or for the victim to himself receive information and copies from the files, which is
required e.g. for asserting civil claims.
• T he possibility according to section 406f StPO of availing oneself of the assistance of an attorney orof being represented by such attorney in criminal proceedings; or, if being examined as a witness, the13 Decision of the Federal Court of Justice, Neue Zeitschrift für Strafrecht (NStZ), 1990, p. 352.

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possibility that the witness may bring along a person he trusts to the examination (section 406f (3)first sentence StPO).
• T
 he possibility provided by section 403 et seqq. StPO of asserting a claim for damages against thewrongdoer as early as the criminal proceedings stage by means of a so-called “adhesive procedure”(Adhäsionsverfahren ).
 hanges to the Provision of Information to Aggrieved Persons with the Second Victims ’ Rights(ii ) C
Reform Act
The information requirements described above are maintained by the Second Victims’ Rights Reform Act
and have been further extended as follows:(a) Further information requirements:• I n addition, a duty to inform victims of a potential entitlement to benefits pursuant to the Victims’Compensation Act (Opferentschädigungsgesetz ) was adopted. These can be considered if, as aresult of the offence, the aggrieved person has suffered serious health damage. Without the relevant
information, aggrieved persons are often not aware that the Victims’ Compensation Act exists.
• S imilarly, section 406h StPO number 4 creates a duty to provide information on the Act on Civil Law
Protection against Violent Acts and Stalking (Gewaltschutzgesetz ) and the possibilities created bythis act, which allow the aggrieved person to move for the issuance of an interim injunction to protect
against further aggrievement.
• L ike all other duties to inform, the duty to inform victims of the possibility of receiving help andsupport from victim support organizations has also been made mandatory. This is because, apart fromsome exceptions, there is no discernible reason why information should not be provided, particularly
since it is clear that no additional effort is required to employ the standard procedure of distributing
informational leaflets.
• S
 ince the amendment to section 80 (3) of the Youth Court Act (Jugendgerichtsgesetz , JGG) cameinto force on 31 December 2006, it is permissible in certain cases for a private accessory prosecutor
to join the public prosecution against a juvenile defendant, which means information must now be
provided regarding section 80 (3) JGG as well.
• W ith the addition of the wording "in particular" (insbesondere ) it has been made clear comparedwith the previous text that in specific cases it may also be necessary to inform aggrieved persons ofother possibilities, e.g. accommodation in a women’s shelter or applying to prohibit the residents’registration office (Einwohnermeldeamt ) from disclosing information.
(b) Providing information at an early stage
In particular, it seemed essential to inform victims of their rights as early as possible. In practice,
however, this was already being done. But with the amendments in section 406h first sentence StPO, it is
now explicitly regulated in law that the information required by section 406h StPO must be provided at theearliest possible stage.
(c) Information in writing
Furthermore, section 406h first sentence StPO stipulates that information must generally be provided
in writing so that it is available to aggrieved persons at all times. This is also necessary because aggrieved
persons are often unable to fully grasp the information provided verbally in their pre-trial appointments withthe law enforcement agencies – appointments which they often find disconcerting. Since the overwhelming
bulk of information is already provided in special leaflets, no major practical changes were needed here.
(d) Information for the aggrieved person in a language he or she understands
Section 406h first sentence StPO stipulates that, to the extent possible, information must be provided
in a language that is understandable to the aggrieved person. This requirement is also consistent with therights enjoyed by defendants in criminal proceedings. It necessitates the translation of the leaflets generally
provided to aggrieved persons at least into all “standard” languages. In practice, this reform did not entail amajor overhaul in Germany since those leaflets made available to crime victims had already been translated
into a great number of the more commonly used languages, including almost all European languages as well
as Arabic and Vietnamese.

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C. Strengthening the Procedural Rights of Aggrieved Persons in Criminal Proceedings: Measurestaken in Court Proceedings
1. Joining the Prosecution as a Private Accessory Prosecutor
From the point of view of victim protection, it is important for victims to be able to join the publicprosecution as a private accessory prosecutor (Nebenkläger ). Joining the public prosecution as a private
accessory prosecutor gives the aggrieved persons named in section 395 StPO comprehensive powers toparticipate in the entire proceedings starting with the preferment of public charges.14 Private accessory
prosecutors have the possibility of contributing actively to the proceedings and influencing them by meansof statements, questions, motions and even appellate remedies.
(i ) The Situation before the Second Victims ’ Rights Reform Act entered into Force
The participation of a private accessory prosecutor regulated in sections 395 through 402 StPO waspermitted in the case of certain serious crimes, an exhaustive list of which could be found in section
395 (1) and (2) StPO. These included not only serious sexual offences, bodily harm, pimping and humantrafficking, for example, but also defamation (cases which must, however, demonstrate a certain severity
to even warrant the preferment of public charges). The group of individuals entitled to join the publicprosecution as a private accessory prosecutor has been gradually extended since the fundamental reform of
this right in 1986. As part of this process, the Sixth Criminal Law Reform Act of 28 January 199815 and the
Witness Protection Act of 30 April 199816 added victims of human trafficking and victims of certain casesof sexual abuse. With the Victims’ Rights Reform Act,17 which entered into force on 1 September 2004, theoffences stipulated in the Act on Civil Law Protection Against Violent Acts and Stalking were added to thecatalogue under section 395 (1) number 1 StPO, and family members of those killed were also given the
power to join the public prosecution as private accessory. With the 37th Criminal Law Amendment Act (37.
Strafrechtsänderungsgesetz ),18 which entered into force on 19 February 2005, victims of other statutory
definitions of human trafficking were added to the group of people entitled to join the public prosecution as
private accessory prosecutor, as were victims of stalking with the Act to Criminalize Stalking (Gesetz zur
Strafbarkeit beharrlicher Nachstellung ),19 which entered into force on 31 March 2007.
(ii ) Changes introduced by the Second Victims ’ Rights Reform Act
As opposed to a further step-by-step expansion of the group of persons entitled to join the publicprosecution as a private accessory prosecutor, the Second Victims’ Rights Reform Act strives to provide
a coherent overall concept and new direction for section 395 StPO. This overall concept was designed to
revolve consistently and recognisably around the criterion of protecting those victims who are particularly
vulnerable. With this concept, the Federal Government legislative initiative followed the recommendationsof academics and practitioners.
(a) Legal policy implications
As early as in the 1984 report for the 55th German Jurists’ Forum (Deutscher Juristentag ), which
focused primarily on the rights of aggrieved persons in criminal proceedings, it was stated that particularly
vulnerable aggrieved persons – above all the victims of serious crimes of aggression20 – should havedirect, priority access to the institution of private accessory prosecutor without problematic auxiliary
arrangements.
This concept also formed the general basis for the creation of the 1986 Victim Protection Act.21 This was
why the entitlement to join the public prosecution as private accessory prosecutor was created primarily
for persons aggrieved as the result of a serious criminal offence against their highly personal legal interests
and who can be considered particularly vulnerable according to criminological and victimological insights.22
14 cf. Meyer-Goßner, StPO , 52nd edition 2009, before section 395, margin number 1.
15 Federal Law Gazette, 1998 Part I, p. 164.
16 Ibid , p. 820.

17 Federal Law Gazette, 2004 Part I, p. 1354.
18 Ibid , 2005 Part I, p. 239.
19 Ibid , 2007 Part I, p. 354.

20 Rieß, Gutachten 55. Deutscher Juristentag , C 85, margin number 123.
21 cf. Bundestag Printed Paper, 10/5305, p. 8 f.
22 Ibid , p. 11.

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Academic studies also confirm that the institution of private accessory prosecutor should be oriented evenmore consistently towards the vulnerability of the victim – where this vulnerability stems in particular fromthe gravity of the criminal offence, directed against the victim’s highly personal legal interests – as wellas towards the consequences of the offence for the victim. Here, it has been established that for victims
testifying as witnesses, apart from the support provided in dealing with the personal consequences, themore severe the injury the more important it is for the victim to be able to influence the course of events inthe criminal proceedings.23
Further, for quite some time victim support organizations have been calling for other crimes typicallyinvolving a particularly serious impact on the aggrieved person, such as robbery, particularly serious cases of
coercion and blackmail, as well as aggravated theft, also be included in the group of crimes subject to joinder.
(b) Qualifying for joinder as private accessory prosecutor according to the Second Victims’ Rights Reform Act
With the Second Victims’ Rights Reform Act these demands have been met for the most part. The power
to join the public prosecution as private accessory prosecutor has now been oriented more towards the needto protect those victims who have been particularly seriously affected – above all, victims of serious acts ofaggression and sexual crimes.
• T his means that certain offences, which cannot typically be classified as serious and which do notentail serious consequences for the victim (such as defamation), no longer automatically entitle thevictim to join the public prosecution as private accessory prosecutor.
• O
 n the other hand, a fall-back clause was created, which was designed to give the victims of all
crimes , especially those against highly personal legal interests – of which some are listed as examples“in particular” – the right to join the public prosecution as a private accessory prosecutor if it appears
expedient to do so, particularly on account of the serious consequences of the offence.
• W hether particular reasons exist depends primarily on how serious the consequences of the offence
are for the victim. The wording is thus geared towards the former version of section 395 (3) StPO,
which gave victims the power to join the public prosecution as private accessory prosecutor in thecase of negligent bodily harm if this was expedient i.e. due to the serious consequences of the offence.
With the imprecise legal term “particular reasons” (besondere Gründe ), the goal of continuing to
specify the seriousness of the consequences of the act is to underscore that crimes which inflict noserious consequences on the victim do not entail the right to join the public prosecution as private
accessory prosecutor.
Example: In average cases of negligent bodily harm in road traffic, the victim is, as before, not entitledto join the public prosecution as private accessory prosecutor if – as is generally the case – he has not
suffered serious consequences as a result.
• S erious consequences will be demonstrated in particular if the aggrieved person has endured or canbe expected to endure a certain degree of bodily or psychological harm. This may consist of healthdamage, traumatization or considerable shock. In addition, “particular reasons” may be established, as
has been the case so far, if for example the victim has to defend himself against serious accusations of
guilt.24 The provision more thoroughly addresses the vulnerability of victims who have been affectedby the serious consequences of a criminal offence against their highly personal legal interests.
2. Assistance for Aggrieved Persons: the Situation before the Entry into Force and Reforms of the Second
Victims’ Rights Reform Act
Aside from joining the public prosecution as private accessory prosecutor, which as stated above isan option available to certain aggrieved persons only, the legal institution of attorney assistance is also
important for victims of criminal acts. Even previously, the law stipulated that all aggrieved persons may
avail themselves of the assistance of an attorney in criminal proceedings (sections 406f, 406g StPO). The
Second Victims’ Rights Reform Act has considerably simplified these provisions and thereby made themeasier to apply. For example, the law now states expressly and in detail that the counsel of an aggrieved
23 cf. Kilchling, Opferinteresse und Strafverfolgung , 1995, p. 291.

24 cf. Hilger in Löwe/Rosenberg, StPO , 25th edition, section 395, margin number 18.

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person with the right to join the public prosecution as private accessory prosecutor is to be informed of thedate of the main hearing. Until now, it was only the private accessory prosecutor him or herself who had
to be informed. The choices an aggrieved person has in selecting legal counsel have also been extended(section 138 (3), section 142 (1) StPO).
 xample: The victim of a criminal offence may now be represented by a trusted person with knowledgeEof the law, who does not necessarily need to be admitted as an attorney. This representative must,however, be approved by the court beforehand (section 138 (2) StPO).
3. Rules on Legal Aid for Victims
Also of great practical significance, especially for joining the public prosecution as private accessory
prosecutor, are the provisions of section 397a StPO. Section 397a (1) StPO stipulates the cases in whichan attorney is to be appointed free of charge as counsel to the private accessory prosecutor. Section 397a(2) StPO contains the criteria under which legal aid must be provided to the private accessory prosecutor.
The provisions of section 397a StPO also apply for the counsel of aggrieved persons when these persons
are entitled to join the public prosecution as private accessory prosecutor, but do not wish to join theproceedings as such.
(i ) The Situation before the Second Victims ’ Rights Reform Act entered into Force
Until the Second Victims’ Rights Reform Act entered into force, the provisions of the former Act wererelatively confusing due to the many references; likewise, the Act did not seem entirely consistent.
(ii ) Changes introduced by the Second Victims ’ Rights Reform Act
With the Second Victims’ Rights Reform Act the provisions of section 397a StPO were redrafted. In
particular, Paragraphs 1 and 2 are of great practical significance.
(a) Redrafting of section 397a (1) StPO
The list of criminal offences under section 397a (1) StPO concerning the appointment of a counsel forparticularly vulnerable private accessory prosecutors has been made more understandable and has been
extended as appropriate.
•N umbers 1 and 2 list criminal offences for which a so-called “victim’s attorney” (Opferanwalt ) must
be appointed for the adult victim or his or her family without further requirements and regardlessof the victim’s or his or her family’s financial condition. These crimes include rape or trafficking
in human beings for the purpose of sexual exploitation (number 1) and murder/attempted murder(number 2).

•A ccording to the new section 397a (1) number 3 StPO, if they are already affected or are expected
to be affected by the particularly serious consequences of an offence entailing serious bodily or
mental harm, the victims of other serious crimes of aggression are now given the option as private
accessory prosecutor of being assigned a victim’s attorney irrespective of the conditions governing
legal aid. This does not only cover serious bodily harm, as was the case previously. The crimesof kidnap, abduction, the abduction of minors, deprivation of liberty, kidnapping for extortion andhostage taking are now included as well.

•I n section 397a (1) number 4 StPO, the list of offences has been extended for which it is stipulated
that a victim’s attorney has to be appointed free of charge for children, youths and victims who
cannot themselves safeguard their interests sufficiently, or cannot reasonably be expected to doso. The provision has now been expanded i.e. to include cases of abandonment (section 221 StGB)
as well as abuse of a position of trust (section 225 StGB), offences against personal freedom, suchas human trafficking or taking hostages and stalking (section 232 through 235 StGB, section 238
through 239 StGB), especially serious cases of using threats or force to cause a person to do, suffer
or omit an act (section 240 (4) StGB) – which in particular includes forced marriage and forced
sexual activity, robbery and blackmail and use of force or threats against life or limb (sections 249
and 255 StGB). The aim of the expansion is to enable appointment of a victim's lawyer free of charge
to that specified group of persons who have already been justifiably recognized as particularly
vulnerable. According to the new rules, if one of the offences stipulated in number 4 is committed,
a victim’s lawyer may be appointed without further requirements and irrespective of the financial
condition of the affected youth or helpless victim.

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The provisions of section 397a (2) StPO, stipulating the conditions which govern the award of legal aid toprivate accessory prosecutors, were redrafted as well.
In line with the justified demands of victim support organizations, the criterion “if the legal and factual
situation is complex” was removed. This stipulation corresponded to the wording in section 140 (2) StPO,
which governs the conditions governing the defence required for the accused. A legal and factual situationis considered complex if, from the point of view of the private accessory prosecutor, the facts of the caseare extensive, intricate or difficult to clarify; if it appears necessary to bring in expert opinion; if special
knowledge is required to assess the facts; if the private accessory prosecutor needs to submit motions forthe admission of evidence, or if complicated/contentious legal issues are to be decided (e.g. measures that
affect the personal life of the private accessory prosecutor; excluding the public, or removing the accused).
In practice, however, this stipulation led to unfairness.25
This is because, even in straightforward cases where the private accessory prosecutor is equally unable
to safeguard his or her own interests sufficiently, or cannot reasonably be expected to do so – for example,
if he or she has to deal with the serious consequences of an offence – a right to legal aid should be granted
if needed. The current version of these regulations is now based on nothing other than whether the private
accessory prosecutor is in the position to safeguard his or her interests and whether this can reasonably be
expected of him or her.
Nevertheless, according to the new legislation, those private accessory prosecutors who need it will as,a general rule, still enjoy a right to legal aid where the legal and factual situation is complex, since without
the assistance of an attorney in these cases they would likely be unable to safeguard their interests to a
sufficient degree.

D. Strengthening the Rights of Child and Juvenile Victims and Witnesses
For children and juveniles who have fallen victim to a criminal offence or who must testify as witnesses,
the situation in criminal proceedings is often particularly difficult. They are still in their development stage,
which means that extra care must be taken to shield them from stress. The StPO therefore contains acatalogue of provisions to protect juvenile victims and witnesses. In contrast to the situation with adults,
these include, for example, extended powers to institute audio-visual recordings for witnesses (section 58a(1) second sentence, number 1; section 255a (2) StPO), and the extended right to exclude the accused andthe general public (section 247 second sentence StPO; section 172 number 4 of the Courts Constitution
Act, GVG). Moreover, a multitude of special provisions that serve to protect children and juveniles are inplace in the guidelines to be followed by public prosecutors.26 Thus, according to number 19, paragraph
1 of the Guidelines for Criminal Proceedings and Proceedings to Impose a Regulatory Fine (Richtlinien
für das Strafverfahren und das Bußgeldverfahren , RiStBV), multiple examinations of children and youths
prior to the main hearing are to be avoided wherever possible due to the associated mental strain put uponthese witnesses. According to number 135, paragraph 3 RiStBV, children and juveniles are preferably to be
examined prior to other witnesses, and are to be supervised and cared for in the waiting rooms to the extent
possible. For sex crimes, number 222, paragraph 1 RiStBV stipulates that for the examination of children,
an expert is to be brought in with special knowledge and experience in the area of child psychology. In theevent that a person accused of a sexual offence who lives in the same household as, or is able to exert a
direct influence on the victim is released, number 221 paragraph 2 RiStBV stipulates that the youth welfare
office (Jugendamt ) is to be informed immediately so that the measures necessary to protect the victim canbe taken.
Until now, however, this protection was only stipulated in Germany for juveniles under 16. With theSecond Victims’ Rights Reform Act, the cut-off age in the StPO and GVG has been raised to 18 years in linewith those limits specified in various international agreements such as the United Nations Convention on
25 Ibid , section 397a, margin number 9.

26 Practical suggestions in Blumenstein, Kindliche Opferzeugen im Strafprozess – unkindgemäße Schicksale und
Verfahrensweisen , Journal of the Deutsche Vereinigung für Jugendgerichte und Jugendgerichtshilfen, 28, 2002; Kilian,
Opferschutz und Wahrheitsfindung – ein Widerspruch? , Deutsche Richterzeitung, 256, 1999

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the Rights of the Child27 or the EU Charter of Fundamental Rights.28

E. Strengthening the Rights of Witnesses
The victims of criminal offences must usually testify as witnesses in criminal proceedings as well. They,
like all witnesses in criminal proceedings, attend to their civic duty to appear for examination and to testify
truthfully. This testimony is usually indispensible for ascertaining the truth. The Second Victims’ Rights
Reform Act takes account of the important position that witnesses hold in criminal proceedings by paying
even greater attention to their personal rights than has been the case so far.
1. Regulating the Duty to act as Witness
To start with, for reasons of legal clarity and legal security, the generally recognised duty of a witness totestify in court and before public prosecutors was laid down in the law (section 48 (1) StPO).
2. Legal Counsel
Section 68b (1) StPO provides a statutory basis for the rule that witnesses may call in the assistanceof an attorney in all examinations, so long as this does not jeopardize the purpose of the investigation.
Beforehand, this right was already guaranteed in Germany on the basis of a decision of the Federal
Constitutional Court.29 But the statute now explicitly clarifies how the right is to be enforced, as well as
specifying the grounds for exclusion, based above all on whether the presence of an attorney during theexamination would jeopardise the purpose of the investigation.
(i ) Grounds for Exclusion
An attorney can be excluded from an examination if certain facts justify the assumption that his presence
would “not merely insignificantly” jeopardize the orderly taking of evidence.
Example: A witness is examined in a fraud case and wishes to bring in an attorney as counsel during theexamination. This attorney is suspected of participation in the underlying offence on the basis of certain
facts. He or she now can be excluded as counsel from the witness examination.
(ii ) Legal Counsel for Particularly Vulnerable Witnesses
In section 68b (2) StPO the rules governing the assignment of an attorney to assist particularly
vulnerable witnesses have been simplified. The only deciding factor now is whether or not particular
circumstances prevent witnesses from being able to exercise their rights themselves during examination. If
so, they are assigned an attorney for the duration of the examination.
 xample: A young woman is repeatedly beaten and abused by her husband. Because of what hasEhappened she is frightened and under heavy psychological strain. Due to her psychological state, there
are concerns that she will not be able to exercise her rights; e.g. the right to refuse to give testimony
and the right to object to questions, or that she will not be able to voice her desire to exclude the generalpublic from the court hearing. It might make sense in this case to assign the young woman an attorney
just for the examination, in order to help and advise her regarding her rights.
(iii ) Court Decisions on Negative Decisions by the Public Prosecution Office
Concomitant to this, the powers of witnesses to bring about a court decision regarding negative decisions
by the public prosecution office pursuant to section 68b (1) StPO have been regulated. (Section 161a (3)StPO alongside various subsequent changes.)Example: A witness whose counsel has been excluded from the examination by a decision of the publicprosecution office can apply for a court decision at the court which is responsible for investigating thefacts of the case (so-called examining judge).

27 Federal Law Gazette, 1992, Part II, p. 990.

28 Official Journal of the European Communities, 18.12.2000, C 364/1.

29 See for example the decisions of the Federal Constitutional Court, volume 38, page 105.

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VISITING EXPERTS’ PAPERS

III. CONCLUSION
The constitutional order of the German Basic Law (Grundgesetz ) also obliges state organs to standin defence of the victims of criminal offences and to respect their needs. This is particularly relevant
when children and juveniles fall victim to crime. As the weakest members of society, they require special
protection. It also applies for particularly vulnerable adult victims of criminal offences, such as those whoare aggrieved as the result of sex crimes or serious violent crime. In providing this protection, lawmakers
face the challenge of achieving the best possible protection for the victims of crime without obstructing thejustified defence rights of the accused in doing so. Any measures to protect victims must be fundamentallycompatible with the purposes of criminal proceedings, since state organs are obliged first and foremost
to investigate criminal offences and to establish guilt or innocence on the part of the accused in fair
proceedings conducted in compliance with the rule of law. Under this premise the aim should be to takethe most concrete measures possible: above all, the victims of criminal offences need the best possible
protection in practice. With the Second Victims’ Rights Reform Act, lawmakers have faced these challenges
once again. Specialists in the field and victim support organizations have already voiced their opinion thatthese challenges have been successfully met.

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139TH INTERNATIONAL TRAINING COURSEPARTICIPANTS’
PAPERSVISITING
EXPERTS’SERIESPAPERSRESOURCE
MATERIAL
No.81

VICTIMS OF CRIME IN PAKISTAN
Muhammad Athar Waheed*

I. INTRODUCTION
Pakistan is a heterogeneous developing society undergoing a metamorphosis, where the state has stilla weak writ of the governance required to ensure rule of law and democratic values. The criminal justicesystem is contaminated by corruption, political intervention, maladministration and a low level of capacity
building. The legal framework available for the rights of victims is deficient and defective. The policies of thejustice system are based on a product of a whimsical approach to leadership rather than research.
Victimology is 1always a neglected field of study in both governmental and scholarly pursuits in the fieldof criminology. Victims are still forgotten entities throughout the entire criminal justice system. The needsof the victims of crime have not been identified and no forward-looking policy is available to deal with thecurrent issues involved in victimization.
The level of victimization has increased because of a startling rise in heinous crime and terrorism but
the countermeasures taken by the state are insufficient and unsatisfactory. In this paper, victim treatment
at all stages of the criminal justice system in Pakistan has been assessed in view of available primary andsecondary sources of data and in the light of United Nations Declaration on the Basic Principles on Justicefor Victims of Crime and Abuse of Power, the UN Handbook on Justice for Victims and the Guide for Policy
Makers on the implementation of UN Declaration. The Criminal Justice Assessment Toolkit has been taken
as a yardstick for analysis of cross-cutting issues confronted by the victims of crime in the criminal justicesystem. Although it is difficult to make an accurate assessment because of non-availability of complete data,
participant observation has been utilized to draw some conclusions. The data of government institutions
is not truly reliable as focus is only on the quantitative aspect of crime. The past and present policies ofgovernment to enhance appropriate measures have also been analysed. More focus in this paper is given to
the identification of main issues affecting fair treatment for the victims of crime and its possible solutions.

II. APPRAISAL OF THE CRIMINAL JUSTICE SYSTEM
The criminal justice system in Pakistan is inherited from colonial masters and there remain many
inherent contradictions between the colonial enactments and the indigenous culture of the society. The legal
system of any society is always an extension of its traditional social control mechanism but importation offoreign laws in any society creates a legal cultural lag which inhibits the creation of a favourable ambiencefor victim treatment. The interaction of cultural values imported with the legal system has led to many
complexities in the multilayered criminal justice process. The traditional justice system, in the form of local
arbitration councils called panchiat or jirga, has been eroded. The parallel application of Islamic laws andEnglish laws created a messy situation where there are many hurdles in providing appropriate measures forvictim treatment.
The arrangements of the criminal justice system are deficient but the application of laws, the culture of
institutions and the style of management has miserably affected the cause of victims. Moreover, the social
fabric is vivisected into different castes, clans, religious sects and social groups where there is more focus onvengeance for the victim and less hope for justice from the state.
Police, prosecution, courts and prison are traditionally the four components of a criminal justicesystem. The police are subservient to the provincial government and are highly politicized in both policies
and administration. It is still a force rather than a service. Prosecution was a part of the police system* Senior Superintendent of Police, Regional Investigation Branch, Rawalpindi Regional Police Force, Pakistan.

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but has now been made independent by the new Prosecution Service. The courts are over-burdened butnow, after the revival of the defunct judiciary with the restoration of the Chief Justice of Pakistan and theannouncement of a new judicial policy, there is a hope for better victim treatment. However, a systemic
approach at national level is still lacking.

III. PATTERNS OF VICTIMIZATIONThe crime statistics in Pakistan present a horrible picture of victimization. There are many issues
involved in the process of data collection. This data is based on First Information Reports registered at local
police stations. There are no independent sources to assess the real depiction of victimization in Pakistan.
The annual crime survey is not published in the country. Moreover, there is an element of confidentiallyinvolved in the process of access to data. The National Police Bureau at national level collects the relevant
data from the four provinces and the capital territory of Islamabad but it is not more than a single statement
about the comparative figures of crime. A glaring flaw in the process of data collection is noticeable asqualitative aspects of data analysis are terribly omitted, which does not allow for a holistic approach towards
crime and victimization.
The following table shows crime statistics from 2000 to 2008, with an increased percentage of crime inthis time period.
Table 1: Crime Reported (Yearly) (2000 to 2008)
Year
2000
2001
2002
2003
2004
2005
2006
2007
2008
Increased %(2000 to 2008)

All crimes
388,909378301399558400680440578453264537855538048592,503

Murder
8906
9528
9396
9346
9719
9631
10048
10556
12059

Kidnapping
7126
6546
6938
8450
9537
9209
10431
10725
15135

Dacoity
1297
1372
1631
1821
2338
2395
2895
3260
4529

Robbery
7513
7612
8235
8434
11851
12199
14630
16639
19943

Others304081304605325322321087350760358223428768432100465908

52%

35%

112%

249%

165%

53%

The above data, collected from National Police Bureau of Pakistan, reflects that there is a constantincrease in overall victimization. Some categories of crime are missing in this table. The category of ‘Others’
is used for miscellaneous crime. The average rate of victimization in different categories from 2000 to 2008is given as in the following table.
Table 2: Average Rate of Victimization per Year (Per Head)
13382

Average Crime

11148

10524

10463

4843
2692

MurderKidnapping

Dacoity

2396

Robbery

Rape

Fatal
Accident

Car Theft

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RESOURCE MATERIAL SERIES No.81

The average annual crime per year in Pakistan is 516,212 and the total population of the country is about
180 million which means that one out of 348 citizens in the country is related to one type of crime in one
year. This is not an exact victim ratio because crime data also includes cases involving arms and narcotics.
But it must be noted that that more than one person can be victimized in a single case; for example, one
suicide bomb attack in Peshawar city in December 2009 killed more than one hundred people. The alarming
increase in homicide is a crucial challenge for law enforcers. The right to life is the first fundamental humanright. Land, honour and money disputes are three major factors in murder cases. Moreover, murder is also
a compoundable offence and in many cases victims compromise because of social pressures and even out of
greed for money.
In the above table the average rate of victimization in rape, fatal accidents and car theft is calculated fromthe available data from 2006 to 2008. The statistics regarding kidnapping/abduction are also distressing. But
more disquieting are the increased cases of kidnapping for ransom, up from 285 in 2006, to 420 in 2007, to619 in 2008. This unprecedented increase in kidnapping for ransom is due to modernized transportation
networks (motorways) and cellular technology. The police lack modern equipment like GPS interception
systems which are only available with Inter-Services Intelligence, an Army-based agency.
Victimization in fatal road accidents is also startling. The total number of people who died in roadaccidents in 2008 is 4,494, which is almost 40% of the total average rate of homicide in Pakistan. About
2,750 people, mostly women, were victimized by rape in 2008, which is again an increase from 2,240 and
2,200 in 2006 and 2007 respectively.
The specific data about the victimization of special groups is not available at national level. Thesevulnerable groups are victimized in different ways. The sex ratio in Pakistan, 105.7 men to every 100
women, differs from most countries. Women constitute almost 49% of the total population and they
are subjected to family violence, abduction, rape and female child labour. There are also some cases ofacid throwing by family members. Customs like wani and karokari present the horrible state of female
victimization. In wani , a woman of one tribe is given in forced marriage to the other party as a matter ofcompensation for a crime or wrongdoing committed by a member of her tribe or clan. In karokari , a woman
is sentenced to death if found in a compromising situation with a man or is suspected of involvement with aman. Such customary practices are still prevalent in the far away rural areas of Sindh and Punjab. In someareas of the North West Frontier Province, women are sold in marriage by their relatives. Bounded labourin the feudal system still poses a serious challenge to the state as a guardian of human rights. Children are
subjected to kidnapping for ransom and sexual assaults. In most kidnapping cases, a child is killed after
taking the ransom amount. Moreover, there are cases of child abuse in religious schools. The rate of crime
reporting to police by women and children is much lower than that of male adults. Minorities, who are often
financially downtrodden, always face discrimination in the criminal justice process.
Punjab, being most populous province, has the highest number of crimes. The province-wise distributionof crime in 2008 is given below.
Table 3: Crime per Province
Punjab, 374436

NWFP, 114083
Sindh, 77656

Punjab

140

Sindh

NWFP

Balochistan,
10010

Islamabad, 5734

Balochistan

Islamabad

THE 144th INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

The victimization of innocent citizens by terrorists in North West Frontier Province, Punjab andBalochistan is again shocking. There were about 115 suicide terrorist attacks in Pakistan in 2009 with
800 fatalities and more than 5,000 injured. The writ of government in the tribal areas is becoming weak.
Moreover, the increased number of IDPs (Internally Displaced Persons) presents another bleak pictureof victimization in Pakistan. The fight between state and non-state elements has rendered thousands ofinnocents homeless and penniless. The insufficient arrangement by the state institutions worsened thesituation for those persons, most of whom are from Swat Valley and Waziristan.
There is not a single scientific crime victim survey conducted by any institution in the country. As per
the results of an unscientific crime victim survey conducted by the Human Development Foundation, about
33.65% of citizens stated that they personally had been victims of crime at some point in their life and67.31% stated that a relative had been a victim of crime. About 46.15% declared corruption in the justicesystem as the most important internal reason for lack of security in Pakistan. Only 0.96% of the people hadfull confidence in the court system.1
In summary, patterns of victimization in Pakistan are horrific and require very sincere efforts on the partof the state to initiate a systemic change in the criminal justice system to improve the conditions for better
victim treatment.

IV. LEGAL AND REGULATORY FRAMEWORKThe legal system in Pakistan is a combination of different elements which are insufficient to meet thecurrent challenges to improve the measures for victim treatment. The supreme law of the land is theConstitution of Pakistan, 1973. It passed through different phases but the fundamental rights specified are
to some extent based on the United Nations Universal Declaration of Human Rights, 1948. Fundamental
rights are enumerated from Article 8 to Article 28; Article 8 specifically stipulates that any other enactment
clashing with fundamental human rights shall be null and void. Moreover, principles of policy are containedin Articles 29 to 40 but these are general guiding principles and lack mandatory implementation.
The Pakistan Penal Code, 1860; the Criminal Procedure Code, 1898 and the Police Rules 1934 are old
British Empire enactments which provide the legal framework for the rights of victims. This time lag is
not bridged in view of socio-cultural changes, modified patterns of victimization and emerging needs of thevictims of crime. Some amendments regarding offences against women have been made and some special
laws for the protection of children have been introduced but their effective utilization is still under question.
With regard to religious minorities and women, some provisions of law are discriminatory. Section 295-cof the Penal Code, relating to blasphemy, has been misused by some religious groups and the punishment
for the offence is the death penalty. Moreover, Article 17 of The Evidence Act, 1984 treats the evidenceof female witnesses as worth half that of male witness in financial matters and in other matters it is at
the discretion of the court to take female witnesses as full or half witnesses. These two issues have beenhighlighted by the human rights commission but there is strong reluctance on the part of government toamend this law in view of expected reaction from extremist religious groups.
It is also noteworthy that laws related to offences against the state and religion are stronger than thelaws for the protection of victims, especially special groups like minorities, women and children. The legal
framework related to state and religion is misused. There is a long list of missing persons, especially those
who disappeared during the regime of President Musharraf. It is very difficult to ensure justice for thevictim when the state itself is an offender. The application of laws and societal values affect the role of victim
in the criminal justice process.
There is also a tendency of false accusation, which is indirectly a form of victimization through abuseof power. False allegations are reported to the police and it takes a long time for the falsely accused
person to establish his or her innocence. Section 182 of Pakistan Penal Code deals with false information
given to the police, and does not empower police to take direct action without the approval of the court.
1 Yespakistan.com- http://www.yespakistan.com/security/survey result.asp

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The bifurcation of offences into cognizable and non-cognizable offence also affects the rights of victim. In
cognizable offences, the police take direct action whereas in non-cognizable offences, the permission of
the court is necessary. This distinction does not exist in other countries as it causes unnecessary delays injustice process. As per data from the Gujranwala police district, about 44% of the complaints received in thecomplaint cell of the police chief were related to family and land disputes which are non-cognizable for police
and are related to civil litigation. There is a tendency by complainants to convert their civil matters into
fictitious criminal matters to ensure an early response.
The issue of abuse of power is primarily addressed by administrative laws like the Efficiency andDiscipline Rules. There are excessive complaints of abuse of power by police. The Police Order 2002
introduced Penal Sections (155, 156) which authorized the high-ranking police and the courts to register acriminal case against the police officers who were involved in abuse of power.
The major substantive and procedural laws are deficient in many ways, because of which there is a long
list of supplementary special laws, including the Prevention of Corruption Act, 1947, the Anti-Narcotics Act,
1997 and the Pakistan Arms Ordinance, 1965 and others. Family and labour laws, with their special separate
courts, are available. In the presence of overlapping legal enactments, it is very difficult for the victim toknow exactly their legal rights and the set procedures are very lengthy and cumbersome.

V. ACCESS TO JUSTICE
The issue of accessibility remained a key concern for researchers in victim studies. The victims ofcrime in Pakistan suffer secondary victimization at the hands of state institutions. The following aspects ofaccessibility, where victims of crime face irresponsiveness and discrimination in treatment, require analysis.

A. Bureaucratic Model
Almost all components of the criminal justice system practice a bureaucratic model of dealing withvictims of crime. The office doors are guarded and style of governance is more authoritative thenmanagerial. Victims of crime have to deal with red tape to seek appointments with relevant officials. Thiscan be described as power distance or bureaupathology.
B. Social Compartmentalization
The level of accessibility depends on the social status of the victim. Poorer people have to wait for a longtime to see criminal justice practitioners. Feudalism and selective industrialization has added to the classdifferences and bifurcation of the social fabric.
C. Culture of Nepotism and Corruption
Like other governmental organizations, components of the criminal justice system are also plagued
with a culture of nepotism and corruption. The discrimination of the victims of crime is a glaring violationof the United Nations Declaration. The accused party has more accessibility to legal resources becauseof nepotism and corruption. The basic reason for nepotism and corruption is lack of good governance andpolitical interference in the justice system.
D. Irresponsiveness and Unaccountability
The responsiveness of the criminal justice system is not properly gauged at any stage. There is aninternal administrative mechanism which takes care of irresponsive behaviour of practitioners but its
effectiveness is yet questionable. Now, it is important to analyse the level of accessibility and fair treatment
for victims at each stage of the criminal justice system.
VI. VICTIM AND POLICE
The police are the first component of the criminal justice process which victims encounter. The police
in Pakistan are still non-professional and unskilled in many ways. Knowledge, skills and attitude are threeingredients of professionalism in any police service. The cadre compartmentalization within the police
system has also affected the relationship between victim and police. This relationship is based on distrustand fear rather than trust and confidence. The trust deficit is the first important issue in bridging this gap

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between police and the victims of crime. The other aspects of police treatment of the victims of crime can be
discussed under the following headings.

A. Non-Registration of Cases
There are persistent complaints against the local police of non-registration of cases and doubting thevictim’s version of the crime. Under Section 54 of Criminal Procedure Code, a police officer is boundto register a case if a cognizable offence is made out. Despite clear directions to the lower ranks, thecomplaints still occur. Now, the local courts are empowered to order the registration of cases under section
22-A of the Criminal Procedure Code. Police try to present a dark figure of crime because their performanceis gauged in quantitative terms, which is always misleading.
B. Delayed Response of Emergency Services
There are presently two emergency services for victim treatment in Pakistan. The police emergency
service is called Rescue-15 where the police has its own Quick Response Teams to reach the place ofoccurrence. The average time to respond to a call should not be more than five minutes but it is delayedin many cases because of shortage of resources. The other newly established Rescue-1122 service isfunctional only in the one out of the four provinces which is properly supplied with modern equipment.
But it is a medical and rescue service. The delayed response of the police emergency service always helps
criminals not victims.
C. Lack of Training and Resources
The first responders and investigators are not properly trained to deal with the victims of crime. They
must be trained to give psychological treatment to the victims as they suffer trauma and mental anguish at
the time of occurrence and afterwards. Moreover, victim treatment is not considered a specialized entity
because of lack of direction and resources. The etiology of police apathy is deep-rooted in the working
environment of the police system. The continuous exposure of police officers to violence, the lack of a shiftsystem and unhealthy living standards make them insensitive and apathetic to the cause of victims. Thisphenomenon may be called “compassion fatigue”. Victim treatment and the needs and concerns of thevictims of crime are not included as a specialized field of training.
D. Lack of Research on Victims
Crime analysis in Pakistan is more accused focused rather than victim oriented. In fact, there is no crime
survey at the national level with available information on victims’ perception of police. Moreover, no study
has been undertaken to assess police interaction with the victim. The research and development wings at
the provincial level do not conduct holistic research studies employing qualitative methods of Victim Contact
Programmes, interviews, surveys or ethnography.
E. Protection and Assistance
The victims of crime are given physical protection by the police as per the demand of the victim but for ashort time. In some police districts, Help Centers for legal guidance and counselling have been established.
But again the quality of guidance and counselling has not been assessed by different surveys. Police officials
in most cases accompany the victim for medical treatment because of a legal requirement that a doctor will
not treat a victim of crime without a police report. Police posts in main hospitals have been established toassist and help the victims of crime.
F. No Special Arrangements for Victims of Special Groups
There is lack of specialization in almost all fields of policing in Pakistan. Special squads for victims ofspecial groups, like women and children, are non-existent. Some NGOs are working for these special group
victims but their contribution is more theoretical rather than a real practical help. The number of womenpolice officers is very low compared to their proportion of the population. Separate sitting arrangements inpolice stations and special victim support officers are not provided in the policing system in Pakistan. Thereis utmost need for establishing victim assistance services for these special groups. There is an increase incases of kidnapping, rape and acid throwing against women. Being the deprived section of the society, thedecision to call the police for help and to pursue their criminal cases depends upon the decision of their kithand kin. In the same manner, children are victimized in kidnapping for ransom, homicide, family violence andeven mosque and school torture which creates a long-term post incident trauma but no special squads areavailable for child victim treatment.
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In a nutshell, it is always the quality of policing which can establish a relationship of trust and confidence
between police and the victims of crime. The indigenous police culture and maladministration should be
addressed to create a victim-friendly police service in Pakistan.

VII. VICTIM AND PROSECUTION
The prosecution service in Pakistan has not played any significant role in victim treatment. Previously,
it remained a part of police department under the direct control of police high officials but later theProsecution Services Act, 2005 was promulgated by which a separate independent set-up of the prosecution
service was established at provincial and district level. There are divergent views about this shift: one
school of thought holds the opinion that the level of accountability has decreased with the separationof prosecution services; while the other is in favour and propounds the concept of professionalism inprosecution services.
The relationship between prosecutor and the victim of crime can be analysed under the following
headings.

A. Restricted Contact with Victims
Prosecutors are in fact overburdened with cases and they are not in a position to give sufficient time forpreparation of each case. Moreover, there is a myth that only the police and judiciary have defining roles
in decisions of cases, owing to which the role of prosecution services has not been refined to address thegrievances of victims of crime. The prosecutors remain busy in court and have less time for the guidanceand counselling of the victim.
B. Commercial Interest of Attorneys
The prosecutors are paid less, being government servants, whereas private attorneys of an accused
party get huge fees as a defence counsel. The defence lawyers get access to all secret investigations fromthe lower-ranking staff of the prosecution service or even from investigators. The performance of publicprosecutors is not competitive, which is however the case for private counsel.
C. Administration and Legal Issues
The public prosecution service is not independent as their services are controlled and regulated by thelaw departments of the provincial governments. Moreover, the appointment of the Attorney General is madeby the political head of the province. The prosecutors do not have the discretion to decide whether special
cases of victims should be prosecuted or not. All cases of different nature are sent to public prosecutors
irrespective of area of specialization. It is important to note that in cases against the state, private attorneys
are hired for prosecution whereas, in heinous cases where victims face agony and less hope for justice,matters are referred to the public prosecutors who are less motivated and less professional.
D. Performance of Public Prosecutors
The performance of prosecutors in relation to victim satisfaction can be gauged by analysing theconviction rate. The comparative conviction rate of different countries is given as below.

Co nv ictio n Ra te

99%

38%

85%

85%

USA

AUSTRALIA

37%

12%

PAKISTAN S.AFRICA

144

INDIA

JAPAN

THE 144th INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

There are many reasons for bad prosecution performance which primarily include lack of professionalism,training and resources. The training of public prosecutors is primarily related to legal issues whereas itshould also be more focused on needs, concerns and rights of victims and there is no prosecutors-based
victims/witness assistance programme. However the conviction rate in other provinces is low. The averageconviction rate in Pakistan is just 11.66%, which is very low compared to other countries. In India it is 37%,
South Africa 38%, Australia 85%, USA 85% and in Japan it is 99%, which is highest in the world. A low
conviction rate is one of the indicators of poor performance of any criminal justice system.

VIII. VICTIM AS WITNESS AND THE JUDICIARY
The judicial system in Pakistan is a multi-faceted system which passed through several eras: the Hindu
period, Muslim period, British Colonial period and post-independent period. The judicial system consistsof the Supreme Court, High Courts, Federal Shariat Court, Sessions Court and Lower Judiciary of Civil
Magistrates. These courts are overburdened. The overall distribution of pending cases in the judicial system
as per the annual report of the Law and Justice Commission, 2006 is given as below.
84704

19055
8571
2092
Su

pre

me

Co

Fe
de
r al

ur
t

Pu
n

Sh
ar i

at

jab

10363

4160

Sin
Bo
NW
loc
dH
FP
his
ig h
Hig
H ig
tan
hC
Co
hC
u
o
ou
rt
u
r
t
rt

The total number of cases in the upper judiciary is 138,945 whereas, the total number of cases in thelower judiciary is 1,565,926. The total number of judges in Pakistan from the Supreme Court to the lower
judiciary is 1,925. In this way the average number of cases per judge is 885 which is an alarming figure forresearchers and policy-makers. Despite this situation, the judiciary is playing its role in providing justiceafter the restoration of the defunct judiciary and the announcement of new judicial policy.
Currently, Pakistan is going through a phase of judicial activism. A new Human Rights Cell has
been established in the Supreme Court of Pakistan and other subordinate courts. The courts take suomotto notice of any glaring violation of fundamental rights. The following issues are to be addressed forestablishing a conducive environment for better victim treatment in the judicial system.

A. Delayed JusticeThe number of hearings of criminal cases by a judge is to be reduced. The victim has to suffer financiallyand mentally to attend the repeated hearings of the court. The judicial officers accuse the police officers of
not presenting the witnesses in time which causes delays.
B. Protection of the Victim
In very rare cases, courts issue orders providing for police security of the victims of crime. The accused
are guarded in police custody with a threat of escape but victims, especially in cases of kidnapping for
ransom and extortion, face physical threats. Mostly, victims make arrangements for their own protection
when their lives are at stake.

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C. Mechanical Approach towards Law
The judicial procedures in criminal trials are more based on oral evidence, not material evidence. Again,
the police investigation is blamed for not collecting and presenting the material evidence. In most cases,
victims suffer as their accused is acquitted on the pretext of doubt. Accused persons are still the favourite
children of the law but there is also need to take cognizance of circumstantial evidence.
D. Lack of Facilities
In the lower subordinate judiciary, working conditions are very poor. There are no separate sitting rooms
for victims, especially women and children. They have to wait their turn without basic facilities. Moreover,the communication system is very traditional in the judicial system, and is based on outdated laws, as thepolice are considered the major agency responsible for communication of any information and for presenting
the witnesses in court.
IX. ROLE OF VICTIMS IN THE JUSTICE SYSTEM
It goes without saying that a victim of crime plays a central role in all proceedings of the criminal
justice process. Victims of crime are permitted under the national law to participate in almost allproceedings against the accused. In the entire process of investigation, the victim defines the courseof investigation, which is sometimes misleading. More than 70% of the offences in the Pakistan Penal
Code are compoundable. The victim is allowed to express his or her views at each stage of the criminal
justice process. In the trial stage, the victim faces some problems, especially in the identification parade of
criminals.

X. ALTERNATIVES TO FORMAL PROCEEDINGSThe traditional dispute resolution mechanism, in the form of local arbitration councils, had been very
successful in ensuring justice. In North West Frontier Province, the local council, called Jirga , always
played a more effective role than the state institutions. There are many advantages in these traditional
mechanisms, which provide justice at a low cost. The honour of the victim is not compromised andmoreover, it becomes the responsibility of the community to take care of the victim’s safety in future.
Unfortunately, with the increase in individualization, Pakistan society is losing such mechanisms. Now, theburden is being shifted to the state institutions. But, it is also important to mention that the quality of justicerendered to the victim is sometimes compromised in the traditional informal mechanism.
Currently, police in Punjab and North West Frontier Province have initiated Arbitration Councils
to decide petty issues between the parties as a matter of government policy to increase community
involvement in day-to-day policing affairs.

XI. PRISON AND VICTIMS
The prison system in Pakistan is also plagued with maladministration and corruption. There are constantcomplaints of drugs, prostitution and availability of cell phones within prisons, though these elements
vary from prison to prison. In some cases, it has been observed that the victims of crime get threatening
messages from accused persons held in jail, threatening consequences if they pursue the cases.
Moreover, there is no system of monitoring after releasing an accused on bail. Though offenders of cases
against property are tracked by the Criminal Investigation Agency (CIA) dealing with organized crime,
offenders of family violence, child molestation, murder and injury are not properly tracked, which is a sourceof continuous threat for the victims.
In Pakistan, victims have very little contact with the prison authorities. In some heinous cases, judges
hold their courts within the premises of prison where the accused is cross-examined and sometimes placedin an identification parade before the victim.
The laws regulating the rules of business are out-dated as they do not focus on the emerging challenges
confronted by the jail administration. The Prisons Act 1900 is a century old legal enactment. The prison
culture simply transforms a simple offender into a hardened criminal. In this way, vengeance against the146THE 144th INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

victim is multiplied. A room designed for ten prisoners is being used by about forty prisoners.
The conditions regarding contact with the victims and payment of monetary obligations to the victim
are ordered specifically by the court and the local police ensure compliance with such orders. In case of any
unwarranted contact of the accused with the victim, the police take action against the accused in view of thenature of the offence or threat. It is again a lacuna in the criminal justice process practiced in the country.

XII. PROTECTION OF THE VICTIMTo ensure the protection of the victim of crime is the primary duty of police, as stated in the Police
Order 2002, but there are many issues involved in the protection of victim/witnesses. There are many cases
where the victim or witness retracts their statement before the court given Under Section 164 of Criminal
Procedure Code which has much evidentiary value. In cases like kidnapping for ransom, extortion, murder
and rape victims are sometimes blackmailed, threatened and even murdered.
The courts and police have powers under the law to order appropriate measures for the protection of
victims. In cases of family violence and sectarian cases of terrorism, its compliance is always questionable.
In some cases, victims were murdered even in the court premises in the presence of the police. Hiredassassins are used to kill victims. The increased number of proclaimed offenders reflects the poor
performance of police. More than a thousand hardened criminals who have head money are included in theBlack Book of Proclaimed Offenders in four provinces of Pakistan.
The physical protection of victims in terrorism cases is highly questionable. Organized gangs are
involved where the state has less power to enhance the level of victimization. In some cases, criminals areassociated with local politicians who again put pressure on authorities to remove the security measurestaken for the protection of victims. Such tactics are employed by land grabbing mafia.
The Pakistan Human Rights Commission has pointed out all these shortcomings in its different annual
reports but no tangible efforts are being made out to enhance the measures for protection of victims ofcrime.

XIII. RESTITUTION, COMPENSATION AND ASSISTANCE
The system of restitution to the victims of crime also needs overhauling and reform. In Islamic law, thelevel of restitution and compensation to the victim is higher compared to English common law. The Islamic
jurisprudence is based on the concept of retribution, with provision of blood money. Though this amount is
not fixed and depends upon the satisfaction of victim, it is sometimes misused as bargaining occurs between
the victim and accused party. In the Pakistan Penal Code, the provision of fine to the accused is given inalmost all sections, along with imprisonment, but the amount of fine was fixed in 1860 and has not beenrevised since. At that time the Penal Code was framed by the English rulers. The court imposes restitution
under the Penal Code in view of the nature of the case but it is not a mandatory provision to be abided by the
court.
In case of disaster victimization and victims of terrorism, special compensation is announced by theProvincial and Federal Governments. An amount from Rs.300, 000 to Rs. 500,000 is given to the victimsof suicide terrorism but there are no set criteria. The compensation for the injured person is very meagre.
Compensation for victims of terrorism has been announced to satisfy the general public with regard
to the government’s counter-terrorism strategies. Moreover, it is given in most of the cases where
media representation is glamorized with a picture of gross violation of human rights. This restitution orcompensation is not a substitute for the socio-psychological agony suffered by the victim. There is no
standardized mechanism to calculate the amount incurred by the victim of crime in the entire criminal
justice process. A general assessment and then provision in the law should be available, specially directing
all practitioners of the justice system to ensure recovery and receipt of restitution and compensation.
Currently there is no victim compensation scheme; rather than a systemic policy for the welfare of thevictim, compensation varies from situation to situation. Regarding assistance to the victim, the situation is147

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also not satisfactory. No victim satisfaction surveys are conducted periodically to assess the real picture but
it is alarming to observe that it is always the victim of crime who suffers at the police station, prosecution
office and then the court to pursue his or her case.
Legal guidance for the victim is not at his or her doorstep. Access to information about the proceedings isagain restricted. There is no system of post-victimization counselling. There are no victim support officers
in the local police station. The police must observe a victim day on a weekly basis which should be focusedon re-contacting victims of major cases so that a relationship of trust can be cultivated between victims andlaw enforcers.

XIV. RECOMMENDATIONS
It is important for the government of Pakistan to establish its National Institution for Victim Support.
The institution should be an autonomous body under the supervision of the Ministry of Interior or the
Ministry of Law and Justice and will be responsible for devising a victim support policy and other initiatives
at the national level.
The provincial governments have more scope for creating a better environment for victims of crime.
Each provincial government is encouraged to establish its regional victim support centre which must have aclose liaison with all relevant agencies and work under the policy guidelines of the National Victim Support
Centre.
The federal and provincial governments of Pakistan must have central and regional victim support funds.
These funds should be spent to create better facilities for the victims of crime.
Each component of the criminal justice system in the country should try to create separate infrastructure
for facilitating victims’ access to their rights regarding counselling, access to information and to know about
the procedures for state compensation and restitution.
There is utmost need for modification in the available legal framework for victim treatment. Separate
victims’ laws are required, stating the rights of the victims of crime, especially of disadvantaged groups like
women and children. Moreover, new procedures like a notification scheme for dissemination of relevant
information to victims should be introduced in the new law.
A state compensation scheme must be introduced for the victims of violent crime, which may include
free medical facilities and other disbursements.
The higher judiciary in Pakistan should encourage the judges to implement the legal provisions regarding
restitution. In case the offender is unable to pay, then state compensation should be given out of the victim
support fund.

XV. CONCLUSION
In view of all above stated facts and observations, it is concluded that Pakistan is one of the developing
countries where the level of implementation of UN Declaration on the Principles on Justice for the Victimsof Crime is deficient and far from being satisfied. The institutional and legal apparatus of the justice system
is unable to enhance the appropriate measures for better victim treatment. It is subject to the capacity
building of practitioners of the justice system and institutional building at state level. The role of nongovernmental organizations is also to be redefined and a comprehensive national policy should be framed
after systematic research and analysis in the field of victimology.

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THE ENHANCEMENT OF APPROPRIATE MEASURESFOR VICTIMS OF CRIME AT EACH STAGE
OF THE PHILIPPINE CRIMINAL JUSTICE SYSTEM
Manuel G. Co *I. INTRODUCTION
In every society, relationships are manifested through interactions among individuals which may
eventually lead to social coherence or division. If a society is divided, social problems may arise. A social
problem may pertain to human relationships, and to the normative contexts since it represents interruption
in the expected or desired scheme of things; violations of the right or the proper way as society defines
these qualities; dislocation in the patterns and relationship that society cherishes.
The present Philippine Criminal Justice System (CJS) was a product of various foreign influences and thecountry’s experiences in achieving its aspiration to protect the State and its people against the destructive
effects of crime and delinquency. As a State mechanism, the CJS was established as an instrument of social
control to coerce people to conform and respect individual spaces, and at the same time teaches them toabide with by the laws and rules established for the common good. Today, all over the world, all states,
regardless of the form of governance, utilize mechanisms like group pressure or institutions (like the police,prosecution, courts, correction services) to enforce conformity and adherence to norms, and to control
deviance in its members.
Crime and delinquency are potent threats to society’s existence. In confronting these social ills, thePhilippine CJS is continuously being assessed and evaluated to check its usefulness to meet to the needs ofthe Filipino people. According to the Production Process model, the CJS is similar to a production process
where “raw materials” are screened and refined. In the said process, the raw material is the criminal
suspect. The production specialists of this system actively processing the raw materials are the police,prosecution, courts, and corrections services, whether institutional-based or community-based. As theraw material moves along the production line, it changes its character. A suspect becomes an accused, anaccused becomes a defendant, a defendant becomes a convicted offender, and a convicted offender becomesa probationer, prisoner or parolee/pardonee. Finally, in almost every case, an inmate becomes an ex-convict
with an indelible stigma of criminal conviction. We could conclude that the justice system is offenderbased, focusing on past behaviour as basis of establishing guilt, and meting out punishment. Its authority isanchored on the “police power” of the State to define crime, treat its nature, and provide punishment for anysocial nuisance that affects public welfare, public interest, public health, and the common good. It focuseson three commonly raised issues: Who is the culprit? What law or rules were violated? And what is theappropriate sanction or penalty? The CJS is a punitive-retributive dispensation of justice. It always treats
crime as a transgression of state authority, and therefore the full force of the law should be bent forcefully tosuppress the danger to the state, protect society and its people, treat and correct violators, deter others, andto vindicate absolute right and moral wrong. The system abandoned the real fact that the crime or wrongful
act inflicted harm to the victim and the community, and therefore it violates people and right relationships.
It’s a kind of winner/loser conflict, which rules and intent outweigh outcome, and the persons with a stakein the offence/crime are in the peripheral position heavily relying on the competence of legal professionals
in pursuing “cause of action”. In the very words of the late Justice Melecio-Herrera, the idea of retributive
justice rests on dubious, interesting and intriguing assumptions: Firstly, justice can be done by making
the offender worse off (through imprisonment or execution); secondly, there is a reasonable manner ofdetermining the desserts of criminal conduct in terms of prison sentences; and thirdly is that the issue ofjustice is addressed by focusing on an event in the past - the crime committed. And now the society realizes
that the existing system of justice is flawed, and the need for a new way of exploring alternatives is evolving
with the introduction of Restorative Justice.
* Regional Director, Parole and Probation Administration, Department of Justice, National Capital Region, Quezon City, thePhilippines.

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II. RESTORATIVE JUSTICE (RJ)
Paradigm shifts are beginning to occur, and governments, all over the world, have realized that balancing
the administration of justice, through a community justice, where the stakeholders directly affected by the
impact of crime are active participants in deciding what is better for them, is an alternative to the present
justice system. Restorative justice is a pattern of thinking that state’s responsibility in protecting its
institutions and people should not just be the responsibility of the justice mechanism, and neither should
crime be the sole or even the primary business of the state, if real differences are sought in the well-being ofindividuals, families, and communities. In the conclusion of Justice Melecio Herrera, the idea of restorative
justice is a different way of responding to crime. Its conceptual framework seeks to render justice to victim
and offender alike instead of tilting the balance in favour of only one stakeholder to the disadvantage of other.
When a crime or wrongdoing is committed in a community, the assumption is that people and relationships
are affected, such as: relationship between victim and the offender; relationship between offender and thecommunity; and sometimes relationship between the victim and the community.

A. Basic Elements of RJ
Unlike in the traditional justice system, a restorative effort is a holistic response to crime or conflict
which needs to be attended to in all these relationships to be able to strengthen community fabric. Let meemphasize, repairing relationships of stakeholders does not mean creating a friendly and positive attitude
between them. It means restoring appropriate “balance of power” among stakeholders. RJ as a private
justice cited in the Source Book “Working for Justice that Heals”, Catholic Bishop Conference of thePhilippines, EPPC (2006), is anchored on the following:•• Encounter: Create opportunities for victims, offenders and the community members who want tomeet and discuss the crime and its aftermath;•• Amends: Expect offenders to take steps to repair harm they have caused to their victims;•• Reintegration: Seek to restore victims and offenders as a whole and help them become contributing
members of society; and•• Inclusion: Provide opportunities for parties with a stake in a specific crime to participate in the
resolution.

B. Goals of RJ
The goal of Restorative Justice is to repair the harm; the criminal justice professional applying thephilosophy needs to understand the impact of crime on the victims, and the latter’s family and future. By
helping the victim the system can:Exert efforts to appropriately respond to the victim’s harm;
Accordingly hold offenders accountable;
Reduce the victimization of the victim again;
Improve active involvement and co-operation of victim; andProtect and empower victims.
III. THE PHILIPPINE CRIMINAL JUSTICE SYSTEM
A. The Victim and the Criminal Justice System (CJS)
In the present CJS, the victim is subjected to another situation of victimization in the following pressing
situations:
1. Victim presence in the courtroom with the Offender;
2. The bothering impact of crime while preparing to testify;
3. Facing the police, prosecutors, judges, advocates, and the public;
4. Lack of understanding of how the Justice System works;
5. Attitude of the community towards the victim; and6. Personal protection and stability.

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In the CJS, the victims are only in the sidelines awaiting any assistance which will alleviate theirsituation, and can not reveal the physical, psychological, emotional, financial and social impacts of crime on
them. In effect they are hindered by the procedures from actively participating in deciding what is betterfor them in achieving satisfying justice and real healing. In the peripheral, the victim is seemingly placedin a production processing. The raw material is the victim. In the stages of processing the raw material, it
moves from one production unit or line to another, and changes its character. A victim of crime becomesa presumptive complainant who has to prove his or her cause(s) of action; a complainant becomes acomplaining witness, whose version of the circumstances surrounding the crime, and the evidence adduced
to substantiate the accusation and narration, are seemingly add on chemical ingredients in perfecting thematerial (establishing “probable cause” in filing the criminal information); a complaining witness becomesa state witness to prove the guilt of the accused beyond reasonable doubt, and consequently impose thestate’s standard legal penalty; after the court proceeding, the state witness with the indelible stigma of
victimization becomes a recipient of social help and praise (also social condemnation) for seeking truth andcourageously championing the “cause of justice”. In all probabilities, the state’s standard remedy of attaining
the “cause of justice” did not really satisfy the victim’s struggle to overcome the impact of victimization,
because the court’s verdict is anchored on a ready made standard legal prescription that presumptively
serves as a “panacea” to the physical, emotional, social, psychological, financial and moral sufferings of thevictims and the other indirect victims.
In addition, while the criminal case is in progress, victims have several concerns which are alsosituations that subject them to further victimization: the bail system, which legally frees the offenderto roam on the street; police indecisiveness in arresting offenders who fail to appear in court; a publicdefender, being paid by the government by the peoples’ money, who vigorously works for the accused andthrough technicality and strategy interferes with the accused getting a deserved punishment; the court’senvironment, statutorily and procedurally, allows the victim to be placed in a witness stand, and narrate
everything and be cross-examined to tell every detail including immaterial and insignificant matters thathave no bearing on the case and may be destructive of reputation; and finally, the victim’s expectation of
how the community perceives them as a person after the commission of the case. These are real and actual
concerns which place the victims back to the situation of being victimized again.
The justice system, which is symbolically represented by a blindfolded woman carrying a scale in one
hand, and a sword in other, is itself the symbol of peoples’ struggle as a civilized nation in the quest forsatisfying justice. Behind the machinery are structures which operate in the prevention of crime throughthe enforcement of laws, the prosecution of offenders, the administration of justice, and ultimately thecorrection and rehabilitation of offenders caught in the web of the criminal justice system. Unfair criticisms
against the enforcement of laws, administration of justice, and treatment of offenders describe the symbolwith sarcasm. The blindfold made up of translucent material is falling, the scales are completely tipped
and rusting, and the sword could no longer cut and is dropping from her grip. These criticisms convey
the message that real and satisfying justice is very difficult to achieve or an “impossible dream”. This is
the institutional way of achieving justice, in which at the end, one social injury is replaced by another, andtherefore, is a never-ending quest for justice.

B. Crime and Impact on the Victim
Victimology is the scientific study of victimization, including the relationships between victims andoffenders, the interactions between victims and the criminal justice system - the police, prosecution, court,
and corrections services - and the connections between victims and the other social groups and institutions.
In Restorative Justice, no such classification of victimless crime is acceptable, because all crimes have direct
or indirect victims, and even the offender is also in broad terms considered a victim.
In reality, the issue of victimization is an encompassing issue that involves not just the direct victims,
but likewise the indirect victims who have suffered the effect of victimization. The traditional justice systemdoes not recognize the suffering of these indirect victims like the members of the family of the complainant,and the community that are affected. In restorative justice, discussions on victimization include the effect of
the wrongdoing on indirect victims, because it views crime through a different lens, and looks into the issueof the victim in the following ways:
1. What is the extent or degree of the harm? (Analysis/Assessment);

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2. What should be done? (Treatment Plan);
3. Who is/are responsible? (Obligatory responsibilities).
Restorative efforts change the definition of a case from an offender-based focus to victims-focus, andlikewise change the nature of the intervention to humanize and transform the means by which community
safety, accountability, competency development, and healing of victims is achieved. The community, which
is a side stream victim, facilitates the process through participative dialogue, and responds to present
and future needs and obligations of stakeholders. In the case of the offender, restorative efforts are
directed towards “righting the wrong” committed, and voluntarily acknowledging accountability such as:
acknowledging causing harm; understanding harm from the other person’s point of view; recognizing thefact that he or she has choices; taking steps to make amends (like apology, repair of harm, etc.); and taking
actions to make changes for the better so that it will not happen again. To a victim, the above are his or her
possible expectations and will satisfy his or her craving for truth and justice thereby reducing the chronic
and catastrophic stressors that traumatized the victim.

C. The Victim and Law Enforcers
Enforcing laws and rules in reality is not just running after criminals, restraining suspects to prevent
them from committing acts of violence and disorder, and placing them in manacles. As the first line ofsocial control, the law enforcers are mandated to enforce laws to the fullest. In our country, a host oflaw enforcement agencies, among others, include the Philippine National Police, the National Bureau of
Investigation, the Bureau of Customs, the Bureau of Immigration and Deportation, the Armed Forces of thePhilippines, the Philippine Coast Guard, the Barangay Units (Village government). They are in the forefrontof preventing and controlling acts that disturb the social conditions of people and places.
In the Philippines, the first line of policing is primarily the responsibility of the more than 50,000
barangay units (village government) run by the local village councils and the volunteer Barangay Security
and Development Officers (Village law enforcers). The Punong Barangay (Village Chief) is a person of
authority. In this level, a Katarungan Pambarangay (Village Justice System) is established by virtue of
Presidential Decree No. 1508, as amended by Republic Act No. 7160, otherwise known as the Local
Government Act of 1991. These village officials, council members, and other responsible members ofthe village are tapped in the resolution of conflicts and differences among residents. The processes of
mediation, conciliation or arbitration are utilized in the settlement of conflicts or differences. The victim’s
complaint, either oral or written, is the basis of the dialogue. Its objectives are as follows: to promote
speedy administration of justice, develop and preserve Filipino culture and strengthen the family as thebasic social unit; to decongest court caseloads, which cause a deterioration in the quality of justice; and toenhance the quality of justice by formally organizing and institutionalizing a system of amicably settling
disputes without resorting to the formal justice system. The jurisdictional coverage of the law, however,is limited with respect to criminal cases. In this level, the victims are protected by the village government
through its officials and volunteer civilian enforcers. In Republic Act No. 9262, the Anti-Violence Against
Women and Their Children Act of 2004, passed to protect the family and its members, particularly womenand children, against violence and threat to their personal safety and security, guaranteed a layer ofprotection for complaining victims. The Punong Barangay is given by law the authority to issue a Barangay
Protection Order (BPO) to order the perpetrator to desist from committing acts of violence as defined in
the said law. The Barangay Protection Order shall be only effective for 15 days. In case the perpetratorrespondent violates the order, a complaint for violation shall be initiated by the Village head, or Kagawad(Council member), who issued the Order in the absence of the Village head, and filed it with any Municipal
Trial Court, Metropolitan Trial Court or Municipal Circuit Trial Court that has jurisdiction over the Villagethat issued the Barangay Protection Order. Violation of the said order is punishable by imprisonment of
30 days without prejudice to any other criminal or civil action that the victims may file for any of the acts
committed. In excess of the 15 days, the victims can file a petition for the issuance of Temporary Protection
Order (TPO) for 30 days or Permanent Protection Order (PPO), which already require a notice and hearing
on the merits of issuing PPO within one day. Where the Court is unable to conduct hearing within one day,and the TPO issued is due to expire, the Court could extend or renew the TPO for a period of 30 days ateach particular time until final judgment is issued. A PPO shall be effective until revoked by the Court upon
application of the person in whose favour the Order is issued. The Court shall not deny the issuance of theprotection order on the basis of lapse of time between the act of violence and the filing of the application.
Regardless of the conviction or acquittal of the accused in a criminal prosecution under the said Act, the152THE 144th INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

Court shall determine whether or not the PPO shall become final. Even in the dismissal, a PPO shall be
granted as long as there is no clear showing that the act from which the order might arise did not exist.
Pursuant to the Katarungan Pambarangay Law, all amicable settlements shall be in writing, in a language
or dialect known to the parties, signed by them and attested by the Punong Barangay or the Chairmanof the Conciliation Panel as the case may be. When the parties to the dispute do not use the language or
dialect, the settlement shall be written in a language/dialect known to them. No complaint, petition, action
or proceeding involving any matter within the authority of the village justice system shall be instituted incourt or in any other government office for adjudication unless it is submitted to mediation, conciliationor arbitration by the Village justice system. The amicable settlement and arbitration award shall have theforce and effect of a final judgment of a court upon the expiration of 10 days from the date thereof unlessrepudiation of the settlement or petition for nullification of the award has been filed before appropriate
court. In urban barangays (Village), the Ronda System through the active participation of organizationsof community groups in crime prevention, was implemented by the barangay council. The Barangay
Security and Development Officer (BSDO), better known as Village Police or Guard, or locally coined asbarangay tanod , are significant civilian volunteers engaged in unarmed assistance that includes intelligence
information gathering, neighbourhood watch; medical/traffic/emergency assistance; identification andimplementation of community projects, and gathering of relevant information and data as inputs to peace andorder research. Volunteerism plays a vital role, and the sustainability depends on the enhancing community
support.
The Philippine National Police is a national government agency. In its efforts to reduce the incidenceof street crimes, increased police visibility and patrolling vigilance activities in co-operation with thecommunity continuously become its initiative. The police visibility on the streets was launched through its
Community Oriented Policing System (COPS) in 1993, and specifically through its project Police PatrolLingkod Bayan . Proving its effectiveness, it was institutionalized in 1994 through a PNP Memorandum
making it one of the key result areas of its National Strategic Action Plan. The passage of Republic Act No.
8551, the PNP Reform and Organization Act of 1998 stabilized more the COPS as it specifically requires the
PNP as a community service-oriented agency.
The PNP strictly adheres to promoting the welfare of the marginalized sectors of the Philippine society
by establishing the “Women and Children” Protection desk in all police precincts all over the country. This
programme is in coordination with the National Commission on the Role of Filipino Women (NCRFW), theNational Police Commission, the Department of Social Welfare and Development, and with the support ofpertinent non-government organizations like the Soroptimist International and Rotary Clubs. In 2004, 1,700
Women and Children Protection Desks were installed, and a massive training of policewomen and policemen
assigned to handle cases of women and children as victims of violence were conducted, and being conducted
up this time.
The PNP and other mandated law enforcement agencies have a strong partnership with the Department
of Social Welfare and Development (DSWD) in handling cases of victims of crime. In the context of thejustice system, the police and other law enforcement agencies are considered not merely law enforcers, butalso peace officers duty bound to protect and respect lives, liberties and properties, maintain peace, orderand decency, safeguard public interest and morals, and be an integral link in nation building.

D. The Victim and the Prosecution Arm
The National Prosecution Service of the Department of Justice, in co-ordination with various agencies ingovernment, ensures community participation at this level of the justice system.
The Witness Protection, Security and Benefit Programme (WPSBP) under Republic Act No. 6981
provide witnesses of crime commission vital rights and benefits. These rights and benefits, however, may
be given after satisfying the imposed eligibility requirements. In this, witnesses are given any or all of thefollowing benefits: secured housing facilities for high-risk witnesses and their dependents, from 3,000 pesos
to about 15,000 pesos in certain cases; travelling and subsistence allowance; medical and hospitalization
assistance; housing or rental allowance in case of witnesses with manageable risks.

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In its desire to expand its services, and the level of the chance of availing, the National Prosecution
Service through the Department of Justice entered into various agreements and arrangements withdifferent agencies in this dispensation like the Department of Foreign Affair, The Philippine Overseas
and Employment, the Department of Social Welfare and Development, The Department of Labor and
Employment for witnesses and victims. Similarly, Republic Act No. 7309, which created the Board of Claims
under the Department of Justice, granted compensation for victims of unjust imprisonment or detention, andvictims of violent crimes.
By virtue of Presidential Act 1275, the National Prosecution Service is vested with power to investigate
and prosecute all cases involving violation of the revised Penal Code and other special penal laws in theCountry. National Prosecution Service is composed of Prosecution staff in the Department of Justice, thenational, regional state prosecutors, the city and provincial prosecutors and their respective assistants.
Likewise, by virtue of Executive Order No. 243, which took effect on July 24, 1987, and Republic Act No.
6770, the Ombudsman Act of 1989, the office of the Special Prosecutor as an organic component of the Officeof the Ombudsman was created, and placed under the direct supervision and control of the Ombudsman
for greater efficiency and effectiveness in undertaking investigation and prosecution functions. Aside fromthe above, the Judge Advocate General Office (JAGO) of the Armed forces of the Philippines performs theregular functions of prosecuting criminal cases within the jurisdiction of military tribunals.

E. The Victim and the Courts of Law
The Judiciary is the very core of the Administration of Justice. It is the centerpiece of the Justice System.
The Fundamental Law of the Philippines vested judicial power in the Supreme Court, and in such lower
Courts as may be established by law (Sec. 1, Article VIII of the 1987 Constitution).
The Philippine Constitution of 1987 defines judicial power as follows: “Judicial power includes the dutyof the courts of justice to settle actual controversies involving rights which are legally demandable andenforceable, and to determine whether or not there has been a grave abuse of discretion amounting to Lackor excess of jurisdiction on the part of any branch or instrumentality of government.”
The Supreme Court is the highest court of the land, and under its supreme power are the lower courts
such as the following: Court of Appeals; The Sandiganbayan, the Regional Trial Courts; the Municipal Trial
Courts, Municipal Circuit Trial Courts, and Metropolitan Trial Courts; the Shari’a Courts for the Muslim
Mindanao, and military courts.
One of the so many problems of the Judiciary is delay in the dispensation of pending controversies, whichpeople turn wary, if not distrustful, of its effectiveness to vindicate rights and redress misdeed committed.
In extreme cases, crime victims compromise with the underworld to obtain justice to get even with theperpetrators. In the paper of Professor Alfredo F. Tadiar, entitled “Unclogging the Courts Dockets Various
Approaches to Solve the Problem”, he classified the causes of delay, namely, those sprouting from the humanfactor; those that could be attributed to the very nature of the judicial system; and the indiscriminate filing ofcases in courts.
According to Professor Tadiar, the first class refers to the human failings and weaknesses of men andwomen administering the judicial system such as judges, lawyers-advocate, court personnel, prosecutors,
sheriffs, defense counsel, process serves, and other important players in the administration of justice. He
attributed the delay in resolving cases to plain inefficiency, incompetence, sloth or laziness, corruption
or other evil motives of these significant duty-holders. The second class is attributed to constitutional
requirements of due process, and the technicalities and adversarial nature of the judicial process; and thethird class is the overcrowding of court dockets due to indiscriminate filing of cases. All these greatly affectthe victims of these crimes as well as offenders.
The Philippine government in its desire to improve the rule of law introduced the following:
Simplification of procedural rules; filling up of vacancies in the judiciary, the prosecution level and the publicdefender, and increased number of courts; and judicial specialization as a means of increasing efficiency.
Hand in hand with these was the introduction of the application of mediation and arbitration to divert cases.
The Alternative Dispute Resolution initiative of the Supreme Court resolved to create mediation center andcontinuously train interested and qualified persons to be appointed as court mediators. Likewise, as part of154

THE 144th INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

its developmental initiative, Small Claims Courts were established to expeditiously resolve cases filed withthe lower courts.
In the case of children as victim and children as an offender, the DSWD, and the Local Social Welfare
Development Officer Office (LSWDO) of the City and Provincial governments are in the frontline service
providers.
Republic Act No. 7610, “An Act Providing for Stronger Deterrence and Special Protection against childabuse, exploitation and discrimination, mandates the DSWD and the Department of Justice to come up
with a comprehensive program to protect these children against evil of prostitution and other sexual attack,trafficking, obscene publication, and indecent shows or other acts of abuse, which place these children
in a dangerous, predictable and vulnerable conditions. Likewise, the passage of Republic Act No. 9262,
the Anti-Violence against Women and Children Act of 2004 seeks to prevent all forms of physical, sexual,
psychological and economic violence and abuse against these weak and vulnerable sectors of society. In
the Implementation of the foregoing laws and its implementing rules and regulations, the DSWD is in theforefront.
In the case of “children in conflict with the law” (CICL), the Philippines recognizes the vital role of youth
in nation-building and promotes their moral, spiritual, intellectual, and social well being. A comprehensive
law was passed, known as Republic Act No. 9344, an Act establishing a Comprehensive Juvenile Justiceand Welfare System”, which defines a CICL as a child who is alleged to, accused of, or adjudged as having
committed an offence under Philippine law. This law specifically defines who are criminally exempt fromliability, and as provided in Section 6 of the Act, the following shall be exempt: a child 15 years of age orunder at the time of the commission of the offence; and a child above 15, but below 18 years of age who
acted without discernment at the time of the commission of the offence. RA No. 9344 is anchored on theprinciple of Restorative Justice utilizing specific and appropriate intervention to redeem a CICL. The law,by its spirit, regarded a CICl as a perpetrator and at the same time a victim. On the same position is RA
No. 9165, the Comprehensive Dangerous Drugs Act of 2002. In particular, its social welfare provisions,like Sections 54, 57, 61, 66, 68, 70 and 81, in relation to sections 11 and 15 of the said Acts, provide helping
programmes for treatment and rehabilitation of drug dependents. In these sections, drug dependents
are considered victims of a drug menace, and are therefore provided effective mechanisms or measures
to reintegrate into society individuals who have fallen victims of illicit drugs and substances through asustainable programme of treatment and rehabilitation. Section 54 pertains to voluntary submission of drug
dependents to confinement, treatment and rehabilitation. Section 57 granted probation and community
service under a voluntary submission programme for drug dependents discharged as rehabilitated by the
Department of Health - Treatment and Rehabilitation Center. Section 61 provides compulsory confinementof a drug dependent who refuses to be rehabilitated. Section 66 and 68 granted privilege of suspended
sentence to first-time minor drug offenders (FTMDO) who violated the provisions on illegal use or illegal
possession of dangerous drugs. And Section 70 paves the way for FTMDO, who was found guilty for
violation of the provisions of illegal use or illegal possession of prohibited drugs, to be sentenced to perform
community service or probation regardless of the penalty imposed. In these various sections of RA No.
9165, the Parole and Probation Administration through its City and Provincial PPA-DOJ field offices play asignificant role in the investigation and supervision of these victims of drug abuse.
Again as laid down in the paper of Tadiar, one of the pressing problems of the judicial department is delayin the disposition of pending controversies, which make people wary, if not distrustful, of its effectivenessin vindicating rights and redressing misdeeds committed. In extreme, some crime victims compromisewith the underworld to obtain speedy justice to get even with the perpetrator. Many factors cause delay,
and its impact always suffered by litigants (especially by crime victims), but is financially rewarding tolegal professionals and practitioners. Unless a reversal of this trend is made such that judges are enabled
to dispose of more case than are filed through a systematic and sustained judicial reform programme, thebacklogs will continue to grow rather than decline.
Very recent is the Supreme Court’s Rule on Juvenile in Conflict with the Law (CICL), which just
took effect 1 December 2009. In that En Banc Resolution, the highest court of the land, through its Rule
Making power, established the rule for criminal cases involving CICL, which is anchored on “Balanced andRestorative Justice Principles”. This rule requires the process of resolving conflict with the participation

155

RESOURCE MATERIAL SERIES No.81

of the victim, the CICL, and the affected community. It seeks to obtain reparation for the victim;
reconciliation of the victim and the CICL and the community; and the reassurance that the CICL can bereintegrated into the community. It also enhances public safety by involving the victim, the CICL and thecommunity in prevention strategies. The new Rule is intended to procedurally explain the gray areas in theimplementation and interpretation of RA No. 9344 and its Implementing Rules.
The courts are tasked to interpret and apply the laws and rules, and therefore very significant in theadministration of justice.

F. The Victim and the Pillar of Philippine Corrections
In the Philippines, corrections has two sub-components, the institutional-based and the communitybased correction, which are being operated by fragmented agencies in government. As to the institutionalbased, the Bureau of Correction (BUCOR), which is under the Department of Justice (DOJ) is in charged of
the insular or national prisoners whose sentences are more than three years’ imprisonment. The Bureau of
Jail Management and Penology (BJMP), which is under the Department of Interior and Local Government,
through its municipal, city and district jails, is tasked to take charge of committed prisoners who aresentenced to three years and less. The Provincial Jails are under the Governor of the province and subprovince. And the DSWD and LSWDO mandated to look into the welfare of CICL. Save the case of DSWD
and LSWDO, in all these institutional programmes, the victims of crimes have no roles to be recognized
and received appropriate treatment. The jails and prisons are created to confine persons committed orconvicted by courts to prevent these persons from further commission of crime, and likewise rehabilitate
them to change their pattern of anti-social behaviour. These prisoners, who were convicted and sentenced
to imprisonment, are granted released either through parole or grant of executive clemency through theplenary power of the Chief Executive of the Country. The agencies primarily responsible are the Board of
Pardons and Parole and the Parole and Probation Administration, which are both under the Departmentof Justice, and rightfully belonged to the non-institutional or community-based correction. On the other
hand, the probation system is a court-directed process utilizing the Parole and Probation Administration
as its arms. The grant of parole is within the power of the Board of Pardons and Parole performing quasijudicial power pursuant to Act 4103, as amended, the Indeterminate Sentence Law. The Parole is granted
to those who served the minimum of indeterminate sentence. As to Executive Clemency, the Board of
Pardons and Parole is tasked to review case for Executive Clemency, and accordingly recommend the sameto the Chief Executive. The Board shall cause the publication in a newspaper of national circulation, thenames of persons who are being considered for executive clemency. Any interested party (victim and otherstakeholders) may send to the Board a written objections/comments/information relevant to the cases ofprisoners who is under consideration not later than 30 days from date of publication.
In the performance of the Board’s tasks, the Parole and Probation Administration, through its Cityand Provincial PPA-DOJ field offices, conducted the pre-parole/pre-executive clemency investigation andsubmit reports to Board for its judicious consideration. After the approval of those prisoners’ release, either
through parole or pardon, the Parole and Probation Administration is now tasked to provide individualized,
community-based treatment programme. In this stage, the Parole and Probation Administration, throughits Restorative Justice programme, get in touch with the victims and the community affected by the crimecommitted.

G. The Victim and the PPA-DOJ
The Probation Administration was created by virtue of Presidential Decree No. 968, the Probation Law
of 1976, to administer the Probation System. Under Executive Order No. 292, the Administrative Code of
1987, promulgated on 23 November 1989, the Probation Administration was renamed “Parole and Probation
Administration”, and added function of supervising prisoners who, after serving part of their sentences inprison/jails are released on parole or granted pardon with parole conditions.
Moreover, the investigation and supervision of First-Time Minor Drug Offenders placed under suspended
sentence (FTMDO) have become an added function of the Administration pursuant to Sec. 66, 68 and 81 of
RA No. 9165, the Comprehensive Dangerous Drugs Act of 2002, and per Dangerous Drugs Board (DDB)
Resolution No. 2, dated 19 July 2005, and DDB Regulation No. 3, series of 2007, which pertains to the Rules
Governing voluntary confinement for Treatment and Rehabilitation of Drug Dependents. The Regional
Directors, Assistant Regional Directors, and Chief Probation and Parole Officers are designated as DDB

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Authorized Representative to assist drug addicts/abusers in their desire to be rehabilitated from the ill
effects of prohibited drugs and substances.
1. ICBT Components
The vision of PPA-DOJ is to transform PPA into a model component of the Philippine Correctional
System that enhances the quality of life of its clients through multi-disciplinary programmes and resources,
an efficient organizations, and a highly professional and committed workforce to promote social justice anddevelopment.
With the above vision, and anchored on the Agency core functions, an holistic treatment approach, known
as the PPA Harmonized Rehabilitation Program for crime prevention and treatment of offenders was adopted
through the implementation of the following components of individualized, community-based treatment(ICBT):(i) 	PPA Restorative Justice (RJ) is a victim-centered response to crime that provides opportunities
for those directly or indirectly affected of its impact to meet together, and voluntarily and actively
participate in the resolution of their differences. As a process, it may be provided through discussion
and negotiation of matters resulting from the offense or conflict, with the help of a fair and impartial
third party (mediator, conciliator or facilitator) to resolve their differences and agree to comply withwhatever agreement obtained during such dialogue and negotiation. It shall apply to all cases referredto the PPA-DOJ Field Offices for supervised rehabilitation treatment by the courts, Board of Pardonsand Parole, the Dangerous Drugs Board, the Chief Executive and other agencies.
(ii) 	PPA Therapeutic Community (TC), a modality treatment for drug abusers and those with serious
behavioral problems is anchored on four major thrusts: behaviour management and behavior shaping;intellectual and spiritual enrichment; emotional and psychological treatment; and vocational andsurvival skills. This is the treatment modality which helps the RJ initiative in reintegrating offenders toachieve reconciliation, empowerment and healing of the victims and other indirect victims.
(iii) 	Volunteer Probation Aide (VPA), an Agency strategy to draw community involvement and enhance
citizens’ participation in the overall process of rehabilitation and reintegration of clients-offenders.
Those volunteers likewise help in the RJ process as mediator, conciliator, facilitator or strength toachieve the ends and the restorative efforts.

HARMONIZING PPA INDIVIDUALIZED,COMMUNITY-BASED TREATMENT PROGRAMME

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RESOURCE MATERIAL SERIES No.81

At the helm of RJ implementation are the field probation and parole officers assisted by volunteer
Probation Aides (VPAs), community leaders and other responsible and interested members of thecommunity.
VPAs are appointed by the Administrator from among citizens of good repute and probity. The present
VPA system is continuously being developed with the help of the JICA and UNAFEI.
The RJ Programme is envisioned to balance the administration of justice to achieve satisfactory justiceand empowerment for all.
2. PPA RJ

PPA-DOJBALANCEAND
AND RESTORATIVEJUSTICEPPA-DOJBALANCERESTORATIVEJUSTICE

ApproachUN
MMCO

National
Security

TIM

Accountability

VIC

ITY

Public Safety

CLIENT
Competency

Crime or conflict hurts people and relationships. The three stakeholders are disturbed by the impactof crime or conflict; therefore, their relationship is affected, and they deserve the end-goals of restorative
justice. The client-offender should be accountable to correct his or her mistake, and restitute whateverdamages were inflicted (accountability). The victim has to be compensated and be empowered again(competency development). The community and its inhabitants deserve an orderly and peaceful society(public safety).
The PPA-DOJ’s role, through its provincial and City Field Offices, is very vital in the implementationof the RJ programme with respect to its clientele who are in the process of supervised rehabilitation
and reintegration. The RJ programme, which has implication to the total efforts in the rehabilitation andreintegration of offenders, has vital national consequence on the evolving issues of human rights and social
justice. These offenders, if not properly managed, and if the appropriate treatment is not implemented,
certainly have impact to national security.
3. PPA Objectives in RJ
The adoption of RJ in the PPA-DOJ through Memorandum Order No. 12, dated 16 July 2003, otherwise
known as the Implementing Guidelines on Restorative Justice, leads clients-offenders to reconnect themto mainstream of society and reconstruct a meaningful relationship with victim and the community. PPA
objectives in the adoption of restorative paradigm are as follows:(i)	To reintegrate offenders to the social mainstream, and to encourage them to assume active
responsibility for the injuries inflicted to victim and the affected community (accountability);(ii)	To proactively involve the community to support and assist in the rehabilitation of victims andoffenders (competency development);(iii)	To attend to the needs of the victims, survivors and other person impacted by crime as vital158

THE 144th INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

participating stakeholders in the justice process, rather than a more object or passive recipientsof services of intervention that may be unwanted, inappropriate or ineffective (competency
development);(iv)	To ultimately heal the effects of crime and wrongdoing (competency development);(v)	To prevent further commission of crime or conflict in relationship (public safety).
4. Basis(i) Section 5 of PD No. 968 as amended, the Probation Law of 1976
“Ends of Justice, the best interest of the public as well as that of the defendant will be served thereby”(ii) PPA Goal
“The goal of the government is to establish a more enlightened and human correction system that will
promote the reformation of offenders and thereby reduce the incidence of recidivism.”(iii) Basic Principles on the Restorative Justice Programmes in Criminal Matters
The Philippines is a signatory-member country to the draft resolution recommending to Economic andSocial Council of the UNO the adoption of the “Basic Principles on the Restorative Justice Programmes in
Criminal Matters”. The said document was a formulation of UN Standards in the fields of Mediation and
Restorative Justice.
5. PPA RJ Guidelines
RJ, as PPA strategy, came to birth by the aforesaid Memorandum, which is anchored on the following:
1. It promotes and encourages active involvement of stakeholders in a crime situation, who during court trial
and by the court procedure are not authorized to have a chance for them to discuss and participate fully informulating a solution which promotes repair, and reconcile the offender with the victim and the community;
2. It is a balanced approach, primarily motivated by its vision to heal the effects of crime or conflict, anddevelop a broader vision of an integrated justice system to include victim and the community; and3. It incorporates into the Agency’s vision and mission the overall thrust of crime prevention through theprocess of community involvement and social welfare networks with stakeholders, assisted by duty bearers,
actively identifying, discussing and solving problems to achieve workable restorative agreement geared toachieve accountability, competency development, and public safety.

(i) M.O. No. 13 s. 2005
To strengthen RJ implementation, the PPA-DOJ Administrator issued Memorandum Order No. 13, s.
2006 which expanded the used of RJ process (mediation, conciliation, conferencing, circle of support, etc.) in
the following situation :1. Disturbed relationship as a result of an offence committed by client :(a) Client relationship with victim(b) Client relationship with community.
2. Disturbed relationship as a result of client’s injurious or destructive acts or omission:(a) Client relationship with immediate family or other relatives whether affinity or consanguinity; and(b) Client relationship with his or her community; and3. Disturbed relationship as a result of an injurious or destructive act or omission inflicted against the
Agency client by other persons.

(ii) M.O. No. 18 s. 2005
Memo Order No. 18 s. 2005 established indicators of rehabilitation success, namely:
1. First level - minimum level of success (institutional requirements): the client has substantially compliedwith the condition of probation/parole/pardon; he or she is successfully released from the Agency control,and he/she is crime free.

159

RESOURCE MATERIAL SERIES No.81

2. Second level - medium level of success (self-fulfillment and reconciliation): the client gained higher
quality of life; he or she is employed or self-employed; he or she has completed his or her education orearned vocational or technical skills, he or she has solved pressing problems in his life such as family
problems, personal questions etc.; he or she has resolved conflict with or reconciled with victim; and3. Third level - maximum level of success (full restoration to mainstream of the community): the client
has gained a certain degree of leadership; he or she has attained a certain degree of recognition in thecommunity; he or she has accomplished something of note for the community. He or she has reconciled withvictim and the affected community.
The last two other situations which have significant effects on the overall goal of an individualized,
community-based treatment programme as well as on the continuing effort of the community to achieveorder and tranquility were included and expanded.
Total No. of Clients in RJ from 2007 to 3rd Qtr 2009

Total No. of Victimss in RJ from 2007-3rd Qtr 2009

6. PPA-DOJ RJ Strategy(i) Peacemaking Encounter
This means a community-based gathering that brings the victim, victimized community and the offender
together to inform each other about the effect of crime and victimization; to learn about each other’sbackground, and to collectively reach a restorative outcome.
PEACEMAKING ENCOUNTER MODEL

Offender tells his or her
story of offence and how it
affects him or her.

160

Victim and Community tell
how the offence affected
them.

Participants designs andagreement.

THE 144th INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

IDENTIFICATIONPOLICY PROCESS IMPLEMENTATIONOUTCOME

IMPACTIMPLICATIONINPUTPROCESSOUTCOMEOVERALL
IMPACT

PPA RJ Programme

Peacemaking
Encounter throughAgreement
Achieving thefollowing goals

Impact toindividualized
community-based
correction

mediation,
conciliation,
conferencing,
circle of support etc.

Accountability
Competency
Development
Public Safety

An empowered victim
Well-reintegrated
clients
Secured community
Peaceful and stablecountry

Duty holders/Bearers
Stakeholders

VictimCommunity

FEEDBACK MECHANISM
Conceptual Framework of RJ Implementation(ii) PPA-DOJ Peacemaking Encounter
RJ Processes – any process in which the victim offender and/or individual or community member affectedby a crime actively participate together in the resolution of matter resulting from the crime often withthe help of a fair and impartial third party. RJ processes, include, among others, mediation, conciliation,
conferencing, circle of support.
PPA Balance and RJ Process Mediation
2008- 3rd Qtr 2009

PPA Balance and RJ Process
Conferencing 2008 to 3rd Qtr 2009161

RESOURCE MATERIAL SERIES No.81
PPA Balance and RJ Process Circle of Support 2008 to 3rd Qtr 2009

7. RJ Procedural Safeguards’ Application(i)	Client admits the offence, and if possible is encouraged to take full responsibility;(ii)	RJ Planner (Probation and Parole Officer) solicits interest and willingness of stakeholders (victim,
community and offender) to participate in the process;(iii)	Victim given preference for the time, date and place of the restorative meeting;(iv)	RJ planner gets in touch with community strengths prior to actual meeting;(v)	A pre-conference meeting with selected facilitators prior to actual the conduct of peacemaking
encounter shall be set to discuss all the details of the dialogue negotiations;(vi)	Likewise, a pre-conference meeting shall be arranged separately with individual stakeholders to
explain the process and other related matters;(vii)	RJ planners shall ensure everyone knows how to get to the location site;(viii)	RJ planners/facilitators ensure conference conducted without interruption and secure the safety
stakeholders;(ix)	Stakeholders shall be consulted as to composition of the facilitator and strengths;(x)	Indigenous systems of settling disputes or differences shall be recognized and encouraged.
Personnel Per Region Who Have Undergone Training on Restorative Justice andJuvenile Justice and Welfare Act as of December 2, 2009162

THE 144th INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERS

RegionNo. of Attendees

No. of Filled
Positions

%

39
21
47
70
25
19
97

39
24
56
83
29
19
101

100
87.50
83.92
84.33
86.20
100
96.03

Luzon
I
II
III
IV
V
CAR
NCR
VisayasVI
VII
VIII
Mindanao
IX
X
XI
XII
CARAGA

61
65
38

62
73
38

98.38
89.04
100

19
26
26
20
17

22
36
31
20
19

86.36
72.22
83.87
100
89.47

TOTAL

590

652

8. Restorative Outcome
The Restorative Outcome is an agreement obtained as a product of a restorative process. Examples
include restitution, community work service, personal work service, attendance at a therapeutic session,
diversion It is designed to accomplish reparation for victim, reconciliation, and reintegration of stakeholders.
Probationers’/Parolees’/Pardonees’ Indemnification of Civil Liability

1978

Total
Numbersof Probationers
234

1979

YEAR

Amount of Civil
Liability

Amount Collected Percentage

Balance (if any)

Percentage

1,005,608.63

194,152.85

19.31%

660,460.41

65.68%

545

3,278,228.75

370,397.55

11.30%

2,739,364.09

83.56%

1980

708

5,198,285.67

390,372.18

7.51%

4,134,023.71

79.53%

1981

1,059

6,242,507.12

598,325.15

9.58%

4,947,787.04

79.26%

1982

1,367

9,989,572.35

457,723.73

4.58%

8,759,027.47

87.68%

1983

734

528,685.63

58,628.02

11.09%

383,507.46

72.54%

1984

313

1,412,787.70

388,644.24

27.51%

986,822.16

69.85%

1985

384

4,116,628.93

128,455.55

3.12%

3,445,745.82

83.70%

1986

351

1,748,984.42

87,973.91

5.03%

1,661,010.51

94.97%

1987

463

646,713.16

228,615.00

35.35%

418,098.18

64.65%

1988

524

421,285.71

190,277.63

45.17%

231,008.08

54.83%

1989

412

3,878,626.10

414,048.33

10.68%

3,464,577.77

89.32%

1990

382

12,810,838.93

235,144.47

1.84%

12,575,694.46

98.16%

1991*

1,229

125,328,563.73

1,794,575.35

1.43%

123,533,988.38

98.57%

1992

1,352

134,538,783.58

2,388,789.97

1.78%

132,149,993.61

98.22%

1993

1,827

40,986,321.00

1,986,620.40

4.85%

38,999,700.60

95.15%

1994

9,635

261,144,714.05

3,886,570.10

1.49%

257,258,143.95

98.51%

163

RESOURCE MATERIAL SERIES No.81

1995

1,020

485,776,166.00

2,302,332.00

0.47%

483,473,834.00

99.53%

1996
1997
1998

5,635
5,296
4,610

209,255,095.22
213,473,415.00
215,667,037.04

4,528,682.82
33,464,543.00
3,442,392.42

2.16%
15.68%
1.60%

204,726,412.40
180,008,872.00
212,224,644.62

97.84%
84.32%
98.40%

1999

3,482

100,640,445.22

5,309,653.60

5.28%

95,330,791.62

94.72%

2000

1,586

108,700,024.88

7,030,408.54

6.47%

101,669,616.34

93.53%

2001

3,468

269,103,965.00

5,964,719.00

2.22%

263,139,246.00

97.78%

2002

632

1,147,424,899.00

6,518,085.00

0.57%

1,047,614,919.00

91.30%

2003

955

717,436,603.00

19,636,761.00

2.74%

624,364,943.00

87.03%

2004

1,335

889,262,789.00

11,412,278.00

1.28%

877,850,511.00

98.72%

2005

1,353

657,050,862.00

12,771,110.00

1.94%

644,279,752.00

98.06%

2006

1,660

234,366,662.92

11,739,834.95

5.01%

222,626,827.97

94.99%

2007

1,543

125,291,933.96

19,119,994.63

15.26%

106,171,939.23

84.74%

2008

1,278

182,087,550.00

6,772,251.00

3.72%

175,315,299.00

96.28%

TOTAL

55,372

6,168,814,583.70

163,812,360.39

2.66%

5,835,146,561.88

94.59%*Inclusion of Parolees/Pardonees in PPA’s Mandate
9. Result of Study of PPA RJ
In my study on the “Assessment of the Implementation of PPA’s Restorative Justice Programme in the
Parole and Probation Offices of Bataan Province, Sta. Rosa City and Baguio City”, which I have submitted to
the National Defense College of the Philippines (NDCP), there are vital areas in the implementation of RJ
that needs to be pursued vigorously by the Agency, such as:
1.	Continuous advocacy for rehabilitation funds from the National Government, and or resort totapping of resources available inside and outside the country;
2.	Improving capability, competence and commitment of the Agency’s human resources;
3.	Extensive networking/partnership with the community, its people and the various institutions andorganizations;
4.	Review of pertinent rules and procedures to conform to RJ processes; and5.	Extensive information campaign to enhance public awareness and involvement.
The Parole and Probation Administration occupies a very sensitive role in the criminal justice system. Its
primordial responsibility is to bring the “lost sheep” back to the folds of the law.
RJ as an intervention provides the framework to enhance the reintegration of clients’ offenders to
the mainstream of the society. The inclusion of the victim and the affected community will complete thereengagement process and pave the way for the transformation of these offenders into productive, lawabiding and functioning individuals.
This is the desired goal of the PPA’s individualized, community-based treatment, and the Agency
contribution to the total efforts of the government in preserving and sustaining peace and stability in the
country, and ensuring national security.

164THE 144th INTERNATIONAL SENIOR SEMINARPARTICIPANTS’ PAPERSREFERENCES
A. Books
Garcia, Manuel B. Introductory Sociology: A Unified Approach. Published by National Book Store, Inc.,
Philippines (1944)
Adler, Freda, et. al., Criminal Justice, McGraw-Hill, Inc. (1944), USA
Melecio Herrera Amverfina, The Criminal Justice Context of Restorative Justice, Pagkalinga, 25 years of
Prison Pastoral Care, CBCP-ECPPC, Philippines
CBCP, EPPC (2006), Source Book “Working for Justice that Heals”
B. Website
http://en.wikipedia.org/wiki/victimology
C. Laws and Issuances
Pres. Decree No. 968, as amended, The Probation Law of 1976
Pres. Decree No. 1508 (Katarungan Pambarangay Law)
Republic Act No. 7160, The Local Government Act of 1991
Republic Act No. 9262, The Anti-Violence Against Women and their Children Act 2004
Republic Act No. 8551, The Philippine National Police Reform and Organizations Act of 1998
Republic Act No. 6981, Witness Protection, Security and Benefit Program
Republic Act No. 7309, The Board of claims
Republic Act No. 1275, The National Prosecution Service
Republic Act No. 6770, The Ombudsman Act of 1989
The Philippine Constitution of 1987, Sec. I, Art. VIII
Republic Act No. 7610, An Act Providing for Stronger Deterrence and Special Protection Against
Children Abuse, Exploitation and Discrimination
Revised Penal Code, Act No. 3815, as amended.
RA No. 9344, The Juvenile Justice System and Welfare Act of 2006
RA No. 9165, The Comprehensive Dangerous Drugs Act of 2002
Dangerous Drugs Board (DDB) Regulations No. 2 &3, series of 2005 and 2007, respectively
EO No. 292, The Administrative Code of 1987
Act No. 4103, as amended, The Indeterminate Sentence Law
Revised Manual (2006), Board of Pardons and Parole
PD 968, as amended, The Probation Law of 1976
PPA Memo Order No. 12, dated 16 July 2003, The Implementing Guidelines of the Restorative Justice
Program
PPA Memo Order No. 13, series of 2006
PPA Memo Order No. 18, series of 2005
D. Unpublished Work
Co, Manuel G., a ‘Master’s Thesis” on the Assessment of the Implementation of PPA’s Restorative
Justice Program in the Parole and Probation Offices of Bataan Province, Sta. Rosa City, and Baguio City,
submitted to the National Defense College of the Philippines, Quezon City, Philippines
Tadiar, Alfredo F. “Unclogging the Court Dockets Various Approaches to Solve the Problem”

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THE ENHANCEMENT OF APPROPRIATE MEASURES FOR VICTIMSOF CRIME AT EACH STAGE OF THE CRIMINAL JUSTICE PROCESS
Donald Yamasombi *I. INTRODUCTION
Papua New Guinea adopted its laws from the British common law in 1972 before independence in 1975
and did likewise with its policing and judicial practices.
Crime is governed by two sets of legislation:(i)	The Summary Offences Act, chapter 262, which deals with minor offences and carries sentencesfrom court fines to five years’ imprisonment; and,(ii)	The Criminal Code Act, chapter 262, which deals with serious offences and carries sentences fromfive years to life imprisonment.
These two sets of legislation recognize a range of offences which cover both consensual and nonconsensual activities and are designed to help prevent these crimes as well as to seek justice and safety forvictims or survivors.
However, in almost every part of the process most attention is given to the apprehension and processingof the suspect in order to secure a desired outcome in the courts. This is because all offenders are presumed
innocent until proven guilty beyond reasonable doubt before a competent court.
The victims or survivors of crime, though left out of the picture, are expected to assist the police and the
public prosecutor with corroborating evidence to support the charge against the accused. This dilemma hascreated an unfortunate situation for many victims and survivors of crimes.
In this presentation I will highlight the role of the police in the criminal justice system of Papua New
Guinea, and with the given major crime statistics of the last five years, will point out some of the challenges
faced by victims of crime in the criminal justice process.
I will then conclude by pointing out some measures currently being worked on to address victims ofcrime by making the process more user-friendly.

II. CRIME STATISTICS
Table 1: Major Crime Statistics between 2005 and 2009
Reported Crimes

2005

2006

2007

2008

2009

All Murders
Manslaughter
Rape
Other Sexual Offences
Robbery
Robbery MV
Breaking (Commercial)
Breaking (Domestic)
Stealing (MV)587/12217/9
878/194
418/105
172/250
879/68642/71
879/72289/18614/17313/1
799/182
472/971605/252
797/42549/69705/80245/25514/16811/2
674/149
308/801170/206
583/30488/98442/56
197/15610/206
18/4
943/262229/601466/301
563/17389/55529/101
216/32619/25314/7
794/215
237/571306/288
654/21395/55538/87248/16* Chief Inspector, Director of Criminal Investigations, Crimes Division. Royal Papua New Guinea Constabulary, Papua New
Guinea.

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Stealing
Fraud
GBH
Firearms
Drugs
Escape from CIS
Escape from Police
Arson
Abduction
Bribery
TOTAL CRIMES/TOTALARRESTS

716/149
196/881443/203
201/142690/732
242/76229/97284/18146/5
2/

902/235
186/831302/207
154/126
536/559
64/10
183/59276/18137/151/1

621/107
161/58828/120
108/117
663/777
23/27
208/68268/81109/9
1/1

1026/107
220/1111003/144
79/70
435/51418/9
90/46
284/50128/164/2

981/276219/1201204/177
98/90
585/720
22/21
124/77239/37
159/183/310459/2419

9540/2237

7448/2171

8511/2353

8765/2616

Note: The arrest figures are shown in bold type.

III. NATIONAL PROSECUTION’S SUCCESS RATE OF CASES PROSECUTED (2005-2009)
The prosecution’s records showed only the number of cases that were prosecuted and the successfulconvictions as percentages for each month over the five year period as listed below.
Table 2: Cases Prosecuted and Successful Convictions
Month / Year

2005

2006

2007

2008

2009

January
February
March
April
May
June
July
AugustSeptember
OctoberNovember
December

71%
71%
71%
75%
72%
73%
71%
74%
75%
72%
70%
71%

74%
74%
71%
74%
70%
73%
72%
69%
70%
70%
69%
79%

75%
73%
79%
68%
74%
63%
62%
66%
73%
67%
67%
59%

76%
77%
79%
69%
70%
71%
77%
71%
Not recorded
59%
67%
69%

66%
56%
54%
63%
57%
62%
59%
72%
58%
45%
65%
71%

Papua New Guinea has serious concerns in its law and order problems. There are many crimes reported
daily but the attendance rate by police to these cases is very poor. This is further compounded by the poor
rate of convictions by investigators for the same reasons: lack of manpower and training.
The above table can be used as an illustration to show the number of victims whom the law has notprotected or to whom justice been denied for the reasons mentioned above.

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RESOURCE MATERIAL SERIES No.81

IV. THE CRIMINAL JUSTICE SYSTEM IN PAPUA NEW GUINEA
The following flow diagram shows the Criminal Justice process in Papua New Guinea.
(i) Police Documents
Complaint

Offencecommitted on
victim

1. Police
Takes onComplaint(ii) Investigations ofAllegations(iii) Arrest of

Offenders

2. Prosecutions

Police Prosecutors – Summary Offences
Public Prosecutor – Criminal Code Offences

3. Court of Law
1. District Court – Summary Offences
2. Committal Court – Police Prosecutor
3. National Court – Public Prosecutor

Adjudication Process

Correctional Services(Prison)Figure 1.

							In the above process, there remain many inadequacies regarding accessibility to justice on the part of thevictims.
The key functions and duties of the individual agencies are highlighted below.

A. The Role of the Police
The Royal Papua New Guinea Constabulary is the only recognized national agency of the country whose
primary functions are to:(i) preserve peace and good order in the country, and(ii) maintain and, as necessary, enforce the law in an impartial and objective manner,as per stipulated under section 197 of the National Constitution, chapter 1. As such, the police are the firstagency to be approached in any conflict or crime situation.
Complaints are registered on receipt into an occurrence register and allocated to investigators toinvestigate. Depending on the seriousness and nature of the crime, it may be delegated to the Criminal
Investigations Directorate to conduct detailed investigations before an offender is arrested and charged.
The Criminal Investigation Directorate comes under the Crimes Division and is the key functional
directorate in investigating and dealing with serious criminal offences.
In so doing the police initiate the whole criminal process as shown in Figure 1 above by documenting thecomplaint, then investigating the crime to establish the truth of the incident.
They are required to identify what law has been broken, identify the person(s) who may have committed

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the offence and gather necessary evidence to support the charges against that person before he or she isbrought before the court.
It is the responsibility of the police to seek and identify sufficient evidence on the complaints reportedby the victims to eliminate mere suspicions before a person can be arrested and charged with an offence.
Other minor offences are investigated and dealt with by the uniformed branch under the Public Safety
Division. The criminal investigators in the course of their investigations are also duty bound to ensure that
offenders or suspects of any offences are treated with due diligence as human beings until proven guilty by acompetent jurisdiction of law beyond reasonable doubt.
In so doing, investigators spend more time on investigation by establishing avenues of enquiries togather enough evidence to charge a suspect. The victims, on the other hand, are also placed in a position toassist police investigations with corroborating evidence, should it be medical reports, eye witness accounts
or other material evidence. The state gives little to no consideration at all to the victims in terms of theirsecurity, assistance to overcome traumas, assistance to free legal aid or the assistance to obtain medical
reports.
With the country’s population at about 6.5 million and the police manpower strength at 4,700, the ratio
is one police officer to every 1,382 people. Therefore, the crime statistics in Table 1 clearly show theinability of police to attend to and deal with all reported crimes because of the lack of manpower, which iscompounded with logistical, training and funding constraints.
Figure 2: Structure of the Royal Papua New Guinea Constabulary
The Police

Commissioner

DeputyCommissioner
Operations

PublicSafetyDivision

Criminal
Investigations
Directorate

CrimesDivision

DeputyCommissioner
Administration

6x Regional
CommandersIntelligence

Prosecutions

Logistics

Policy &Planning

Human
Resources

Finance &Administration

Fraud & Anti
Corruption

B. The Prosecution
Because of the court systems in the country, the summary or minor offences are prosecuted by Police
Prosecutors in the District Court, which is the lower court.
Serious criminal cases are firstly heard in a Committal Court presented by a police prosecutor before
a senior magistrate to determine the sufficiency of evidence on hand before it can be committed for a trial
proper in the National Court or be struck out.
When the cases are committed to the National Court, the Public Prosecutor then takes carriage of thematter as this is a higher court.

C. The Courts
The court system in the country is based on the burden of proof. The court is really an independent bodythat functions impartially on cases brought before it.

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RESOURCE MATERIAL SERIES No.81

All criminal cases are deemed to be the state’s case, hence the onus is on the state to present its casebeyond reasonable doubt to prove guilt of an accused, because the accused is presumed innocent until
proven guilty.

V. SOME ASSOCIATED CHALLENGES FOR VICTIMS AND SURVIVORS OF CRIME
Having briefly discussed the criminal justice process, the following are some obvious challenges faced by
the victims and survivors of crime.
• C osts involved at certain points of the process. These costs include medical bills for victims andmedical reports, transport fares to the nearest police stations to lodge complaints and even legal fees.
• D elays in the process. Police investigators most times delay investigations unnecessarily. As suchcases may get adjourned in the Courts over extended periods and sometimes get struck out. Lackof manpower and logistics may be some reasons for this; however this does not serve justice on thecomplainants or victims.
• D ifficulties with the Court administrative processes. Some case files get misplaced and lost in court
houses and other times cases are dismissed due to non-compliance with court procedures, processes
and rules.
• L ack of information and trust in certain points of the process. Inadequate awareness of the proceduresand processes of investigations and the Court processes leads to mistrust and ignorance.
• L ack of resources. This causes undue delay in the production of case files in the initial stage by thepolice, thus leading to undesired striking out of cases in Courts due to time limitations• L ack of adequate and affordable legal representation. Because victims cannot afford legal fees many
at times their cases are thrown out as the defence can afford legal counsel to adequately argue theircases in court.

A. Current Measures
In 2006 some attention was drawn to address the effect of crimes on the victims. They included issues as:
1. Victim Impact Statement
It is vital that at the trial of the matter, police and prosecutors must provide to court the impact of thecrimes on the wellbeing of the victim to assist the court in its decision making and imposition of appropriate
penalties. Recent meetings between the police and public prosecution on who should obtain victim impact
statements have agreed that the public prosecution obtains and presents these statements as part ofevidence in the court of law.
2. Medical Report
Victims experience significant problems as they have had to pay their own expenses after undergoing
medical treatment. Then they have to pay for medical reports to form part of the evidence of the crime
inflicted on them. Furthermore, the doctors’ affidavits are not always available to assist the courts.
On occasions that the doctors’ affidavits or statements were provided, they have been written in medical
terms difficult for laymen to understand.
A number of measures are now in place to address this situation, including:
1. Meeting with the Health Department authorities to formalize a pro-forma for medical officers’ affidavits tobe presented in a language easily understood by all;
2. Medical pro-forma prepared for victims of crime to be presented to the hospitals so that they are treatedat no cost;
3. Reception centres created within the hospitals to cater for victims of crime, especially women andchildren;170

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4. Reception Centres are established with trained officers at selected police stations and hospitals to deal
with the problems of victims of crime, especially cases involving women and children.
Reception Centers were introduced between 2005 and 2006 in the two major cities of Papua New Guinea.
The main reason for the establishment of these centres was to deal with the victims of crime against
women, child victims and sexual assault victims.
Women and children were seen as the most vulnerable group that cannot speak out in public of theabuses and traumas they have been through unless they have been treated with compassion and respect.
Although no formal training is provided in government institutions like the police, some workshops havebeen run by NGO groups and the United Nations Save the Children Fund to deal with the victims of crime.
At the police stations the staff of the reception centres are taught to deal with this vulnerable group more
attentively in order to make them feel comfortable and assist in the investigation process.
In hospitals, when these victims are referred, they are attended to in a separate set up from the main outpatient area.
These arrangements are basically to provide a more conducive environment for victims, especiallywomen and children, to be attended to compassionately and with care so that they are at ease andcomfortable in assisting the investigation process.
3. Working Collaboratively
Policing in Papua New Guinea is promoted as everybody’s business. Every individual and organizationin the community has a part to play in making the society safe. Thus, the Royal Papua New Guinea
Constabulary adopted the mission statement: “Securing a Safer Community in Partnership”.
Currently many non government organizations are advocating for the rights of all people from all forms ofviolence and this is beginning to get off the ground with considerations given to victims of crime. Unlike inthe past, victims had no support from the community around them and they feel cornered and helpless. The
police are collaborating with all these groups through the concept of Community Policing. In this concept,
people with respectable characters are identified from within the communities they live in and sworn as
auxiliary constables. They do not have the power to arrest offenders but they can mediate trivial conflicts
and resolve them using the accepted customary practices of the community.
It is essential that a collaborative effort is to be made to create harmonious environments for victims
of crime to feel at home and able to willingly support case officers or the courts. This working relationshiprequires all agencies and whole government approach and support, especially from key organizations that are
actively involved in handling victims of crime cases. They include the Office of Public Prosecution, Police,
Department of Health and NGOs, as in the case of Port Moresby; House Ruth (an NGO group) and othersafe passages or safe houses are made available to victims of crime by certain private companies including
Digicel, Protect Security and other stakeholders in the business community.
This collective effort by the community is really making an impact in actually providing the temporary
shelter needed by the women and children who are being abused or harassed at their homes.
4. Legal Aid/ Investigations Oversight
In Papua New Guinea victims of crime are at liberty to seek legal representation at will. However, thecost involved in seeking this service is very high.
Apart from the services of private lawyers, which are expensive, the Public Solicitors’ Office, which is agovernment agency, does provide some form of legal advice to victims of crime, though in most instances
they represent the defendants or suspects in court because they likewise cannot afford to engage private
lawyers.
One avenue that is really gaining momentum is the 2005 Memorandum of Agreement between the Police
and the PNG Ombudsman Commission. In this MOA, the Ombudsman Commission is obliged to oversee

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that reported cases are fairly investigated without fear or favour by the police and justice is delivered to theconcerned party.
Early September 2009, two murder cases, one alleging the involvement of a policeman and anotheralleging the involvement of a prominent businessman, were investigated under the Police Ombudsman
oversight arrangements as the cases were unnecessarily delayed by police investigators under suspectedundue influence by the suspects.
In November 2009, I investigated and charged a police officer for wounding another person using his
official firearm on a mere suspicion that he was a suspect in a stealing offence. The victimSection 0 s family
and relatives were very much overwhelmed by the action because it took a year before this action was taken
under the arrangement.
Under this same arrangement all witnesses and victims are protected from any threats or harassment by
the suspects or their accomplishes according to the existing law. Although no restitutions are imposed, any
threats, harassments and inducements on the victims or the witnesses are treated as new offences.
5. Court User Forums
In about mid 2006, the National Court Judges initiated and introduced the idea of running Court Users
Forums especially in the Port Moresby and Lae cities.
The key issue was to assist stakeholders of the Criminal Justice System to see the Courts as not only
a place where punishment is imposed on lawbreakers but a place where both parties, the suspects and thevictims, can access services more freely.
It was obvious that some court processes were very rigid and the judges, magistrates, police, thecorrectional services and lawyers needed to come together and discuss issues of common interest and makethe process more user-friendly.
Some positive outcomes from these meetings have been the understanding of the courts on extending
timeframes for case files to be prepared as agencies like the police do not always have resources available tocomplete investigations and case files on time.
Another outcome has been to address the previous yearsSection 0 cases dating back some five to sevenyears as this was seen as denial of justice to those who reported the matters.

VI. CONCLUSION
The approach to the Criminal Justice Process in Papua New Guinea has been concentrated on thehandling of the suspects, administering their rights and presuming that they are innocent of any allegations
until proven guilty by the competent jurisdiction.
It was only in 2005 that the measures I have briefly highlighted above were introduced and many moreconsultative meetings and workshops need to be held before more refined, practical and constructive
approaches are put in place to better treat and deliver justice to the people who fall victim to the hands ofcriminals in Papua New Guinea.
On the outset it is my firm belief that victims of crime and the criminals are part of the society thatallows the criminal justice system in PNG to remain a vibrant process; hence it is critical now that thevictims and survivors of crime be given similar if not better treatment by the government and its agents.
However, in order to do so, proper training must be conducted in all government law enforcement agency
institutions on the appropriate procedures and processes of receiving and processing the victims of crime.
Appropriate legislation also needs to be put in place to foster trust and confidence of the public and better
serve the victims of crime in Papua New Guinea.

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REPORTS OF THE SEMINARGROUP 1MEASURES FOR VICTIMS OF CRIME AT EACH STAGE OF
THE CRIMINAL JUSTICE PROCESS WITH SPECIAL ATTENTION TO
VICTIMS OF SEX CRIME/ CHILD VICTIMS
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Visiting Experts
Advisers

Ms. Mari Elvira Bote Herrera
Mr. Masahito Murohashi
Mr. Donald Yamasombi
Mr. Eduardo Jose Tristan Castro
Mr. Ryoji Terado
Ms. Valéria Raquel Pereira Martirena
Mr. Philip Shem
Mr. Takeshi Nishioka
Prof. Cho Kyoon Seok
Ms. Martina Peter
Ms. Kim Herd
Prof. Tetsuya SuganoProf. Ayako Sakonji
Prof. Fumiko Akahane(Philippines)(Japan)(Papua New Guinea)(Peru)(Japan)(Brazil)(Vanuatu)(Japan)(South Korea)(Germany)(USA)(UNAFEI)(UNAFEI)(UNAFEI)

I. INTRODUCTION
Group 1 commenced its discussion on 22 January 2010. The Group elected the above-stated officers tolead the discussion. Group 1 was assigned to discuss the Measures for Victims of Crime at each Stage of
Criminal Justice Process with special attention to Victims of Sex Crime/Child Victims.
It is now widely-recognized that all crime victims should have a right to a full range of services andsupport to help them recover physically, psychologically and in all practical ways, from the effects of crime.
The Group attempts to provide various perspectives, from different backgrounds and different jurisdictions,to address the needs of victims of sex crimes, specifically rape victims. Rape, as we acknowledge it, is aheinous offence that can happen to anyone: children, women and sometimes even men.
Although some countries have existing laws in place to provide assistance and support for crime
victims, other jurisdictions recognize the need to establish certain measures to alleviate the needs of thesevulnerable crime victims.

II. SUMMARY OF THE DISCUSSION
To come up with appropriate measures for crime victims, the Group discussed the following issues
concerning their respective countries’ experiences:
1.
2.
3.
4.

Collection/reception of evidence.
Preservation of evidence.
Improvement of line agencies co-operation.
Providing for the safety and well-being of victims

A. Collection of Evidence
On the matter of the collection of evidence the following desirable points were discussed by the groupmembers:•

Police personnel dealing with sex crimes must have adequate education and training in humanrelations and must display empathy to the victims, particularly child victims;•

Awareness and education should be rendered to children and everyone on what to do in a sex crime
situation and whom to call immediately (only with emphasis to children). Media for disseminating
information include mass media, pamphlets, workshops, conferences, etc.;173

RESOURCE MATERIAL SERIES No.81•

Creation of a special section at the police stations to receive and interview crime victims;•

In collection of evidence there is a need for co-operation between the police and other agencies likehospitals to create a one-stop support centre;•

The state should provide the equipment necessary for laboratory and physical examinations;•

There is a need to tap or seek help from NGOs or International Organizations to provide training/equipment in case of a lack of funds;•

In Brazil, a pilot project is now being built that would facilitate the assistance given to crime victims
by putting up a hospital, police station and social assistance/welfare institution, as well as the officeof the prosecutor and the court in one area where the victim may go to and where everybody in thatarea or network will be prepared to deal with the situation.

B. Preservation of Evidence
In the preservation of evidence the group narrowed the issues down to the following:•

Contamination of evidence (i.e. physical, object or biological evidence) must be avoided;•

Physical examination of victims is required to obtain credible evidence;•

Police officers and prosecutors need to be properly trained in evidence preservation techniques;•

Medical expenses incurred by the victims must be borne by the police/state.

C. Improvement of Line Agencies Co-operation
The group recognizes that line agencies’ co-operation is relevant to the dynamics of protection of crime
victims and, so recognizing, agreed on the following points:•

A working relationship and greater co-operation needs to be fostered between the hospital and thepolice for a speedy and timely response and results;•

There is a need for conferences to be held, including the police, hospitals and other agencies, to promote
more effective collaboration on the rules and guidelines as many personnel lack understanding;•

NGO can provide legal assistance through community support programmes and they can also help
lobby for legislative changes;•

One-Stop Support Center. There must be collaboration between line agencies for two basic reasons:
1. Investigation;
2. Deciding how best to assist victims (i.e. police, medical and legal assistance, temporary shelter).

•NGOs must be included as part of any crime victim support system because they often have thefunds necessary to assist crime victims.

D. Providing for the Safety and Well-Being of Victims
The group discussed the magnitude and significance of managing crime victims’ feelings and sentiments
and established the following issues in providing for their safety and well being.
1. Secondary Victimization or Re-victimization•

Victims often have to relate the incident three times; first to the police investigator, then to the
public prosecutor who is mandated to come to the police station to get testimony of the victim andfinally during the trial;•

The privacy of the victim should be taken into consideration;•

Dolls should be used to reduce anxiety and to encourage child victims to talk more about theincident;•

Dolls should be used at the police level to aid the re-enactment of the incident during the investigation
process and the police investigator acts as suspect;•

Attendants, screens and video links should be used in criminal trials;•

Video-tapes of initial investigations or a question and answer session before a psychologist should be174

144th INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINAR

played during court proceedings to prevent re-victimization;•

The public may be excluded from the court at the request of a rape victim.

2. Notification•

There is a need to notify and inform the victim of the status of the case at each stage of the proceedings.

3. Victim Impact Statement•

Victim Impact Statements are already used in some countries while in other jurisdiction, it is still inthe trial stage;•

There is a need to explain the process to the victim and to reach out to the victim by conferring,
informing or notifying the victim of the law and guidelines;•

Existing Measures unanimously agreed as appropriate to be adopted:
1. Victim Impact Statement.
2. Notification Process.

III. CONCLUSION AND RECOMMENDATIONSAt the end of the discussion, the Group reached a consensus regarding the recommendation of possible
countermeasures in the investigation up to the trial stage to protect victims of sex crime, specifically rape.
In sum, the measures recommended by the group to be adopted in their respective jurisdictions include
the following:
1. Giving special consideration to the mental and physical needs of victims:•

Development of system/organization (an intake or emergency centre dealing with medical, social,welfare and psychological needs, and the collection and preservation of evidence);
(i)
(ii)
(iii)
(iv)

Special sections for crime victims in police stations;
The establishment of a One-Stop Support Centre;
Collaboration with other concerned organizations: such as hospitals, NGOs, Police Offices,etc.;
Training line agencies’ personnel as part of collaborating mechanism.

•

Development of guidelines on investigation methods such as collection of evidence, preservation ofevidence, or interview.

•

Core-group training among police officers (Based on a Training of Trainers Programme) on proper
criminal investigation, which includes re-training in basic aspects of investigation as well as thefollowing:
(i)
(ii)
(iii)
(iv)

Social measures;
Medical measures;
Psychological (mental and emotional) measures;
Religious/community measures (if need be).

2. Providing awareness and enlightenment programmes for vulnerable subjects:•

Information dissemination
(i)
(ii)
(iii)

Raising the awareness of students by police officers and teachers;
Raising awareness of the community, especially parents, by public health professionals orother officials;
Awareness raising and dissemination of information through the mass media (i.e.
television, radio and print).

3. Allowing for protection of privacy and dignity of victims:•

Creation of special police units or stations designed for handling sex offences in which the majority
of officers are female;175

RESOURCE MATERIAL SERIES No.81•

Non-disclosure of basic information which would reveal the identity of victims (such as name,address and nationality);•

Behaviour modification of personnel who come in contact with victims directly in the criminal justicesystem.

4. Rendering professional (including psychological) protection and services for crime victims by the State.
5. Notifying victims and/or immediate family members (when they are not perpetrators) of the status of thecase at every stage of the criminal justice process.
6. Establishing legal frameworks for victim protection and for participation in judicial procedure (including
providing the opportunity to make a victim impact statement).
7. Developing victim advocate programmes for the community.
A victim advocate may be one who volunteers to provide:
•
•
•
•
•

176

Legal support;
Liaison between agencies, etc.;
Case process monitoring;
Escorting of victims to the police station and to court;
Psychological support.

GROUP 2
MEASURES FOR VICTIMS OF CRIME AT EACH STAGE OF THE CRIMINALJUSTICE PROCESS WITH SPECIAL ATTENTION TO VICTIMS OF
SERIOUS VIOLENT CRIME, INCLUDING HOMICIDE
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members

Visiting Experts
Advisers

Mr. Manual Golloso Co
Mr. Hiroshi Sato
Mr. Muhammad Athar Waheed
Mr. Yoshiaki Furukawa
Mr. Md. Awlad Ali Fakir
Mr. Nam Ha Vu
Ms. Emiko Nishimura
Mr. Musaed Dhaifallah Qaid Al-Dhaheri
Ms. Kim Herd
Ms. Martina Peter
Mr. Cho Kyoon Seok
Mr. Jun Oshino
Mr. Haruhiko Higuchi
Mr. Toru Kawaharada(Philippines)(Japan)(Pakistan)(Japan)(Bangladesh)(Vietnam)(Japan)(Yemen)(USA)(Germany)(Korea)(UNAFEI)(UNAFEI)(UNAFEI)

I. INTRODUCTION
The group started its discussion on 22 January 2010 and elected by consensus Mr. Co as its chairman,
Mr. Sato as its co-chairman, Mr. Waheed as its rapporteur and Mr. Furukawa as its co-rapporteur. The main
topic of discussion as assigned was “Measures for victims of crime at each stage of the criminal justiceprocess with special reference to victims of serious violent crime including homicide”. The topic underdiscussion was too broad to cover, consequent upon which, the group further decided to focus only on theanalysis of measures for the survivors of homicide. The agenda of discussion was planned by the group withthe sub-topics: 1.Needs and concerns for victims of violent crimes; 2.Legal and Regulatory framework;
3. Measures for victims of violent crime at the Investigation Stage; 4. Measures for such victims at theprosecution stage; and 5. Measures for victims at the trial/sentencing and post sentencing stage.

II. SUMMARY OF DISCUSSIONS
A. Needs and Concerns of Victims of Violent Crime
All the participants identified five major needs of the victims of violent crime including homicide. The
financial need of such victims was given much importance in the discussion and then the psychological needof such victims was discussed. The physical safety of the victim was also declared an important need andconcern. Access to information was also discussed as an important need of victims of violent crime and thenthe available facilities for medical treatment was considered a second important need for such victims.
The Japanese participants discussed the available financial measures available after the enactment of the
Basic Act and Compensation Payment Act. Ms. Nishimura said that the victim had to pay all expenses at theinitial stage, which is a big financial burden. Mr. Furukawa from Japan stressed the role of non-governmentalorganizations in providing financial support for victims of violent crime. Mr. Waheed from Pakistan discussed
the expenses related to burial ceremonies and issues related to blood money. He sated that the victim’s
family gets blood money as a result of compromise as homicide in many countries is still a compoundable
offence, which is not case in Japan and other countries.
The psychological needs of such victims were identified by the group. All the participants stressedon the behaviour of criminal justice practitioners can be overcome through training of officers on crisis
intervention.
The issue of physical safety was thoroughly discussed by almost each participant. In Japan the system ofpatrolling the home of victim was discussed whereas Mr. Waheed pointed out that the use of modern gadgets

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can be helpful for tracking the offenders and ensuring the safety of victims. Mr. Fakir from Bangladesh
explained that the system of quick response teams should be available for the safety of such victims. Mr.
Al-Dhaheri from Yemen pointed out that it is the responsibility of the tribe, clan and then family to provide
physical safety for the victims of violent crime. Mr. Co explained that it is the duty of the police and village
government in Philippines to ensure such safety.
The victims’ need regarding access to information was discussed by the group and it was found that sucha formal mechanism is available only in Japan. The institutional methods and infrastructure for providing
information are not available in Pakistan, Bangladesh, Yemen and Vietnam. It was agreed by the group that asystem of notification should be a mandatory part of the criminal justice process.
The issue of medical facilities for the victims of crime was discussed by each participant and many
discrepancies were discovered in the criminal justice systems of countries where there is no culture of life
insurance.

B. Legal and Regulatory Framework
The legal aspects for victim’s treatment were thoroughly discussed by all participants.
Mr. Al-Dhaheri from Yemen explained that there are some special laws for children, juveniles and women
to protect the rights of these groups of victims. But there are no special laws for victims of crime. Mr.
Waheed from Pakistan said that the right to life is the most important and foremost fundamental human rightand further explained the surrounding legal issues in Pakistan. He concluded that though the constitution
and some substantive and procedural laws explain the rights, it does so in much generalized terms. Thereis no separate enactment specifically meant for the rights of victims of crime. Mr. Fakir stated that thesituation in respect to the legal and regulatory framework is the same as that of Pakistan, except the recent
enactment of some special laws for some special groups and cases. Ms. Nishimura and Mr. Sato from Japandiscussed the available legal and regulatory measures. Mr. Ha from Vietnam also pointed out that there isno separate laws in Vietnam stating victims’ rights. Mr. Co also agreed that separate enactment for victims
is a necessity of the time. There are some special laws for women and children in the Philippines but othercategories of victims are still ignored. It was the consensus of all participants that without a legal framework
it is not possible for any state to provide institutional means for better victim treatment.

C. Measures for Victims at the Investigation Stage
The problems faced by the victims of violent crime were discussed by the group in detail. Mr. Waheedfrom Pakistan discussed nonprofessional treatment by first responders because of lack of training incrisis intervention. Moreover, there are no special investigation units regarding each category of crime.
The investigators more focus on offenders in the process of interrogation and analysis of evidence andforget the victim, which is always damaging for establishing a bond of trust and confidence. The issue oftrust deficit is a major problem in most of developing countries where there is more chance of politicalinterventions and unjust treatment of the victims of crime. Mr. Sato from Japan also pointed out thatsometimes the victim statement just after the occurrence of a crime is problematic. In the same way,
Ms. Nishimura from Japan explained that in some cases, the media representation of the victim has very
negative impact on the process of investigation as well as secondary victimization by the media. Mr. Co
stated that in the Philippines, the village government, called the Barangay, has a very important role inproviding basic information and services regarding victim treatment. He also emphasized the importanceof dying declarations in the criminal justice process. It was the consensus of all participants that a victim
impact statement is very important in the process of investigation. Such a system is not practiced in many
countries.
D. Measures for Victims at the Prosecution Stage
There are some basic differences in the role of public prosecutors in different criminal justice systems.
Mr. Waheed from Pakistan said that the prosecution service remained a part of the police service until madeindependent in 2005 by the Public Prosecution Act, but again, its role is very restricted and correctional.
The victims of crime have less contact with the prosecutors in Pakistan and situation is the same in
Bangladesh. In Japan, the Philippines and Yemen, the public prosecutor has a defining role in victim
treatment. Mr. Sato pointed out that there is no system of private prosecution in Japan, whereas Mr. Co from178

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Philippines added that a private prosecutor works under the supervision of public prosecutor and the victim
is consulted in a case for a plea bargain. In most of the represented countries, the screening mechanism at
the prosecution stage is not available as in case of Japan, where about 54% of cases are not prosecuted at
the discretion of public prosecutor, considering the circumstances and seriousness of the case. On the other
hand, in countries where a screening mechanism exists, there should be another mechanism to review thediscretionary power of prosecution authority for victims of crime.
The participants also discussed the alternative dispute resolution mechanism. Mr. Al-Dhaheri from
Yemen stated that a very effective alternative dispute resolution mechanism through mediation andarbitration is available in the form of a tribal mediation mechanism. Mr. Waheed from Pakistan explainedthat there is bifurcation of offences into compoundable and non-compoundable. The historical method ofalternative dispute resolution remains in practice but its role has been diminished due societal changes. The
quality of justice in such institutions is always questionable. Mr. Co pointed out that the village government
and indigenous practices play a significant role in out-of-court settlement. Ms. Nishimura said that out-ofcourt settlement may not divert serious violent cases from formal criminal proceedings in Japan because thesystem has to take care of the social injury caused by the offender.

E. Measures at the Trial/Sentencing StageIn most of the represented countries, with the exception of Japan, a codified mechanism for presenting
the views and concerns of victim is lacking. Mr. Furukawa explained that in Japan, the victim is consulted in
the case of probation and parole. The victim has also the right to express his or her grievances at trial stage
and also in the victim impact statement. Mr. Co also added that the victim is also consulted at the time ofparole in the Philippines through the publication in newspapers of the names of persons to be released andvictims and other concerned people can give their comments.
The issue of compensation and restitution was thoroughly discussed by each participant. Mr. Waheedsaid that the provision of restitution is available in the Penal Code of Pakistan but there are very few cases
in which restitution orders have been passed by the courts. It is at the discretion of the court to pass a
restitution order. On the other hand, the institutional mechanism for compensation to the victim of crime is
not given in the criminal justice system of Pakistan. Mr. Fakir from Bangladesh added that the same system
is in practice and political heads announce compensation in some cases; the amount varies according to thesituation. Mr. Co claimed that in his country compensation for unjust imprisonment or detention and victimsof violent crimes is granted by law. Of the represented countries, only Japan has a victim support fund.

F. Measures at the Post-Sentence Stage
Most of the participants agreed that there is a misconception in many countries that the role of victim is
finalized at the sentencing stage when in fact there are many issues in the post-sentencing stage which are
directly related to victims of crime. For example, Mr. Al-Dhaheri explained that in Yemen the victim has theright to prevent capital punishment even after a presidential order for such a sentence is given. Mr. Waheedpointed out that in Pakistan corruption and maladministration in correctional centres sometimes leads tohardened criminals using cell phones inside the prisons and threatening victims with dire consequences
if they pursue the case. Moreover, the correctional centres transform “ordinary” criminals into hardened
criminals because inmates learn from each other, which is again a threat for their victims. In the case ofparole and probation, in Japan, a victim is informed through the notification scheme. But in other countries,
the victim is disassociated from criminal justice agencies, including the correctional centres, in the postsentencing stage. Most of the time, the victim is not aware of offender’s treatment and even sometimes
remains unaware of the release of the offender.
III. RECOMMENDATIONS
All group members finalized the following recommendations:1.

Each state may establish a separate national institution responsible for planning and execution ofnational victim policy;

2.

There is utmost need for separate laws for victims’ rights regarding information, compensation andrestitution and other allied facilities;

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3.

Each state should create a victim support fund for victims of crime for all categories of victims, but
especially for women and children. Those states having financial constraints are recommended to
implement a system of fine surcharge and some percentage of fines collected from offenders must be
added to the victim support fund;4.

Each state may incorporate victim impact statements in their criminal justice process;5.

Basic training on victims’ issues for common practitioners and advanced training for specialized
units should be a mandatory part of training for criminal justice officials. Listening to the victims’
experiences should also be a part of such training;

6.

There must be infrastructure and a system to assist victims of crime. There is need for separate
offices to provide such assistance;

7.

A one-window operation to provide information to the victims of crime within a criminal justicesystem is recommended for each state to simplify the acquisition of information;

8.

There is a need to establish a balance between the offenders and victims’ rights at each stage of thecriminal justice process. Greater focus on victims’ rights should not prejudice the rights of suspects
and offenders;

9.

There is need to inculcate victims’ rights in the education system of each state so that present andfuture generations are sensitized to victim issues;

10. The media should adhere to guidelines which accord with the International Code of Ethics for media
practitioners when writing about victims to avoid victimizing them secondarily;
11. Communities should be involved in victims’ issues through awareness, motivation and participation
campaigns. A victims’ day or week may be celebrated to sensitize communities to victims’ issues;
12. Each state may encourage public-private partnerships (PPP) for victim support;
13. Research on victims’ concerns should be both governmental and academic, and modifications in thecriminal justice system can be undertaken in view of given policy recommendations. Independentsources within each state should undertake a national survey of crime victims;
14. There is need to focus on the “3Ms formula”: “men, material and method”. There is no shortcut
without capacity-building in terms of human resources; then the basic requirement is separate
infrastructure; and after modification of procedures and practices, a state will be able to establish ajust and fair system for better treatment of the victims of crime.

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GROUP 3
MEASURES FOR THE VICTIMS OF CRIME AT EACH STAGE OF
THE CRIMINAL JUSTICE PROCESS WITH SPECIAL ATTENTION TO
VICTIMS OF ORGANIZED CRIME
Chairperson
Co-Chairperson
Rapporteur
Co-Rapporteur
Members
Visiting Experts
Advisers

Mr. Mahito Araki
Mr. Conrado A. Reyes
Mr. Shakeel Ahmed Durrani
Mr. Balarabe Nayaya Sulaiman
Mr. Masaki Yokose
Mr. Muliawan Wawan
Mr. Ko Takano
Professor Cho Kyoon Seok
Ms. Kim Herd
Ms. Martina Peter
Professor Junichi Watanabe
Professor Naoyuki Harada(Japan)(Guatemala)(Pakistan)(Nigeria)(Japan)(Indonesia)(Japan)(Korea)(USA)(Germany)(UNAFEI)(UNAFEI)

I. INTRODUCTION
Group 3 started its discussion on 22 January 2010. The group elected by consensus Mr. Araki as
Chairperson, Mr. Reyes as Co-Chairperson, Mr. Durrani as Rapporteur, Mr. Sulaiman and Mr. Yokose as
Co-Rapporteurs. The group, which was assigned to discuss “Measures for the victims of crime at the eachstage of the criminal justice process with special attention to victims of organized crime”, agreed thatsince organized crime is a very vast subject, it might not be possible to cover all its aspects. Keeping thislimitation in mind, the group unanimously decided to focus on human trafficking, as it is emerging as one
type of organized crime which is affecting almost every country in one way or another. After having agreed
on human trafficking as the main subject of the group discussion, the group conducted its discussion inaccordance with the following agenda:
1)
2)
3)
4)
5)

Definition of Human Trafficking;Current situation with regard to the treatment of victims of human trafficking in participating
countries;
Measures and counter-measures in place to alleviate the sufferings of victims of human trafficking;Conclusion;
Suggestions.

II. SUMMARY OF THE DISCUSSION
A. Definition of Human Trafficking
The discussion started with the definition of organized crime and human trafficking as one of its
components. As compared to ordinary crime, organized crime involves planning and co-ordinated execution
among the tentacles of the organized criminal groups. It is transnational in nature. In the case of humantrafficking, there are normally two or more countries involved i.e. the country of origin (from where thevictim is trafficked), the transit country (through which the victim is trafficked) and the destination country(country to which the victim is finally trafficked). The group also attempted to differentiate between humantrafficking and migrant smuggling. The participants opined that in the case of migrant smuggling, thesmuggled persons’ consent is crucial. On the other hand, there is always an element of deceit, intimidation,
coercion or enticement in cases of human trafficking.
B. Current Situation with regard to the Treatment of Victims of Human Trafficking in Participating
Countries
Japanese participants were of the view that Japan could be a destination country for the victims of humantrafficking. Since there is growing global concern regarding human trafficking, the Japanese government
should adopt a proactive approach in order to identify the victims of human trafficking in Japan and provide

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them with necessary assistance before their respectful deportation to their countries of origin. The groupshared the concern that the trafficked persons, when detained in transit or destination countries, are,invariably, treated as illegal residents (immigrants). They are subjected to the same kind of harsh andinhuman treatment that is meted out to the offenders, which makes them victims of secondary victimization
at the hands of law enforcement authorities. Once viewed as illegal immigrants, the victims of humantrafficking lose all prospects of respite. Even though they are provided with immediate assistance such as
medical care and food, the victims (trafficked persons) do not receive any other assistance which might
include legal assistance, safe accommodation, translators, etc. A few participants disclosed that those adults,
who, of their own volition, opt to be trafficked, or smuggled, are prosecuted upon their apprehension in theircountry of transit or destination. They are also prosecuted in their original country upon their return after
deportation from transit and destination countries.
Participants from a few countries informed the group that there was no state compensation for victims ofany crime in their countries. However, if a victim suffers financial damages, his or her loss is compensatedfrom the recoveries made from the offenders. In the case of human trafficking, the same procedure isadopted. Since the offenders of organized crime are very difficult to detect, poor victims end up being
victims of multiple victimizations. Pursuant to ratification of the UN conventions, some countries madenew special or specific laws relating to the victims of human trafficking, but they were found to be either
insufficient or followed no strict enforcement.

C. Measures and Counter-measures to alleviate the Sufferings of Victims of Human Trafficking
Following local legislation, some countries adapted measures for the victims of human trafficking.
National level agencies were established to identify and protect potential and actual victims. For instance,in Nigeria, the National Agency for the Prohibition of Trafficking in Persons is equipped with necessary
material assistance for victims of human trafficking, especially those who are deported from transit anddestination countries. The agency also provides other assistance such as legal and psychological counselling
for traumatized victims. However, meagre resources adversely hamper the activities of the Agency.
Participants from other countries also quoted the scarcity of resources to be the major impediment towards
adherence to national and international commitments with regards to treatment of trafficked victims.
III. CONCLUSION
The group unanimously agreed on the fact that the existing laws were not sufficient to protect victims
and witnesses at all stages of the criminal justice process with respect to organized crimes. Even if there
are laws, their enforcement is defective. The main emphasis and focus of the law-enforcement agencies
is to arrest, prosecute and punish offenders (agents) of trafficking-related offences. Little attention is paid
to the sufferings and plight of victims, particularly at the investigation stage, which renders them victimsof secondary victimization. The group opined that new legislation was required which should be aimed at
protecting the victims of this organized crime. Victims of human trafficking should be treated as victims
regardless where apprehended. Their treatment as offenders subjects them to secondary victimization
which is against the very spirit of international and national legislation. The group also shared the alarming
concern that there was no state compensation for the victims of organized crime in some countries.
A. Suggestions
After thorough and detailed discussions on the sensitive issue of victims of human trafficking, the groupsuggested the following short and long-term measures.
B. Short-term Measures
1. Special Units entrusted with the task of providing protection and safety to the victims and witnesses oforganized crimes should be established;
2.

Officials associated with the criminal justice system, especially at the investigation stage, should betrained in such a way to bring about behavioral and attitudinal changes in their treatment of victims ofhuman trafficking. Sensitization of such individuals to the sufferings of victims of human trafficking isessential for the success of any measure. The government should improve upon the existing measures
to make them more victim-friendly and comfortable;

3.

More co-ordination and co-operation amongst various agencies/organizations in collaboration with182

144th INTERNATIONAL SENIOR SEMINARREPORTS OF THE SEMINAR

NGOs/civil society organizations should be streamlined by the national commission for prohibition ofhuman trafficking in each country;
4.

Awareness-raising campaigns should be launched targeting the potential victims, particularly more
vulnerable groups, to educate them on all aspects of this crime. Different aspects of this crime, such as
risk to life and health, should be highlighted in such awareness-raising campaigns;

5.

Vulnerable and weak groups such as trafficked children and women should, in no case, be treated as
offenders. If and when detained, they should not be confined and should be provided with all possible
material assistance including psychological, social and legal counselling. Efforts should also be made toensure that the victims are notified of their above-mentioned rights;

6.

The affected countries, including country of origin and destination, should post representatives on areciprocal basis who would liaise and oversee the treatment that is meted out to the victims hailing fromhis or her country.

C. Long-term Measures
1. The group suggests the establishment of an administratively and financially autonomous national levelcommittee entrusted with the exclusive task of ensuring provision of immediate assistance to thevictims of organized crime, particularly, human trafficking. In addition to the rehabilitation of victims,
the committee should also devise ways to ensure restitution/compensation to the victims;
2.

Best practices of victim treatment from countries should be replicated, even if they do not relate to thevictims of human trafficking;3.

A national commission for prohibition of human trafficking, comprising legislators, academics,
intelligentsia, representatives of I/NGOs and seasoned criminal justice practitioners, should re-visit/
re-assess the existing substantive and procedural laws relating to human trafficking and its victims.
They should suggest amendments as they deem fit for the victims of this inhuman crime;

4.

The affected countries, i.e. origin, transit and destination, should maintain close co-ordination with one
another. Bilateral and multilateral MOUs (Memoranda of Understanding) should be signed between
these countries aimed at treatment of human trafficking victims with compassion and respect, eventhough these victims might emerge prima facie as offenders (illegal residents);

5.

These MOUs should also include provision of informal mechanisms of information-sharing relating to
the identification and protection of victims of human trafficking;6.

Private sector participation should be ensured and multi-national companies should be co-opted toextend social assistance to the victims of human trafficking;7.

An independent national institute should be established to conduct studies in victimology with specialreference to the victims of organized crimes, including human trafficking;8.

The respective governments should create crime victim funds. A reasonable percentage of proceedsfrom the executed fines received from the defendants of all types of crimes should be deposited intosuch funds and compensation to the victims should be made from such funds;

9.

In addition to creation of crime victim funds, it is also suggested that the proceeds received or
recovered from the confiscated items of the offenders of organized crimes should also be used forcompensation and restitution to victims.

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APPENDIXCOMMEMORATIVE PHOTOGRAPH• 144th International Senior Seminar

UNAFEI

144 th International Senior Seminar

Left to Right:
Top:
Prof. Dussich, Prof. Chokalingam, Prof. Higuchi, Prof. Sakonji
Fourth Row:
Ms. Yamada (Staff), Mr. Shirakawa (Staff), Mr. Saito (Staff), Mr. Kojitani (Staff), Mr. Nagata (Staff),
Mr. Nishitani (Staff)
Third Row:
Mr. Koiwa (Staff), Mr. Kosaka (Staff), Mr. Waheed (Pakistan), Mr. Reyes (Guatemala), Mr.
Furukawa (Japan), Mr. Sato (Japan), Mr. Castro (Peru), Mr. Takano (Japan), Mr. Muliawan (Indonesia),
Ms. Yamamoto (JICA), Ms. Usuki (Staff), Ms. Iwakata (Staff)
Second Row:
Ms. Sakai (Chef), Mr. Fakir (Bangladesh), Mr. Nishioka (Japan), Mr. Murohashi (Japan), Mr.
Sulaiman (Nigeria), Mr. Al-Dhaheri (Yemen), Mr. Yokose (Japan), Mr. Yamasombi (Papua New
Guinea), Mr. Ha (Vietnam), Mr. Shem (Vanuatu), Mr. Araki (Japan), Ms. Bote Herrera (Philippines),
Ms. Pereira Martirena (Brazil), Ms. Nishimura (Japan), Mr. Co (Philippines), Mr. Terado (Japan), Mr.
Durrani (Pakistan)First Row:
Mr. Kobayashi (Staff), Mr. Iida (Staff), Prof. Harada, Prof. Kawaharada, Prof. Oshino, Ms. Herd
(USA), Ms. Peter (Germany), Director Sasaki, Prof. Cho (Republic of Korea), Deputy Director
Ukawa, Prof. Watanabe, Prof. Sugano, Prof. Akahane, Mr. Fujiwara, Ms. Lord (L.A.)