Documents
Resources
Learning Center
Upload
Plans & pricing Sign in
Sign Out

Restitution and Compensation

VIEWS: 12 PAGES: 58

									                           Restitution and Compensation



                                     Presentation to the

                                      Tokiwa University
                    Exchange Student Program 2011/2012




    Prof. Dr. G.F. Kirchhoff, Tokiwa International
1   Victimology Institute                                   4/11/2012
Theorem of Divided Territory
                                                  Criminal Procedure

                                                                                            State
                                                          Rights of the State

                                                             (Prosecutor)




                  border line




                                                  Human Rights of Defendant

                                                          (Procedural Rights)               Offender



         Prof. Dr. G.F. Kirchhoff, Tokiwa International                         2
 2 4/11/2012
         Victimology Institute                                                      4/11/20122
    Theoretical Fundament for the Position of the
    Victim in Criminal Justice System
     Justicia repressiva (traditional)
     Criminal law maintains social order by repression
     Center is on balance:
     The balance has to be between state and offender - not offender and victims
     Right to be treated in respect for the dignity of the victim is consequence of Human Rights
      (Italy 1922) .
     Special care - obligation of judge and prosecutor to protect the victim against “secondary
      victimization in the criminal justice system”
       Primary victimization
       Secondary victimization - avoid secondary victimization as far as possible!!!!
       you cannot go far enough with this demand!
     Advantage of this approach: EXPLAIN
     The concept of “Conflicts as Property”
       Conflicts are properties
       They are owned and exploited
       by the owners of the system
       The “owners” administer the conflicts in their own interest
       If you are looking for reforms – take this into account!!! (How?)


    Prof. Dr. G.F. Kirchhoff, Tokiwa International
3   Victimology Institute                                                                  4/11/2012
                                                    Reparation
       After criminal Proceeding the victim has “nothing”! Why?
           Crimes are seen as offences against public order (state)
       Victimizations are invasions into the self of the victims, causing damage in three dimensions. This damage
        remains - in spite of punishment.
       To counteract, two institutions have been developed
           Restitution
               the offender somehow repairs the damage
           Compensation
               The state pays instead of the offender
         Both institutions have been developed by Italian reformers and have been introduced into the Spanish influenced legal
          culture
         Result is a complicated “Derecho Victimal” (Manzanera)
               Civil Law
               Public Law
                     Help for the victims
                     Procedural Criminal Law
                     Criminal Law




    Prof. Dr. G.F. Kirchhoff, Tokiwa International
4   Victimology Institute                                                                                         4/11/2012
 Is punishment in the interest of the victim? -
     Differentiate:
 in our usual societal reaction to crime, we offer nothing to victims
  (except revenge and a twisted kind of satisfaction)
 The consequences of punishment serve at best the interest of social
  control. Self understood is that the state punishes in its own interest.
 Fines are an important contribution to the state budget.
     so important that in traditional systems fines are collected before the state
      advises the victim to seek civil law reparation against the sentenced offender.
        prison terms can be put on probation.
        why not fines? Recently, some modern countries made it possible that fines are
         put on probation.
 These are some problems in traditional justice systems.




       Prof. Dr. G.F. Kirchhoff, Tokiwa International
5      Victimology Institute                                                              4/11/2012
    Restitution 3
     Consequence of “Fines on Probation”:
         Condition of probation would be: “Repair the damage of the
          victim”.
         The state collects the fine only when the offender did not repair
          the damage of the victim.
         The state would monitor the conditions of probation as usual.
         If the offender repairs the damage of the victim, then the fine
          must not be paid.




    Prof. Dr. G.F. Kirchhoff, Tokiwa International
6   Victimology Institute                                          4/11/2012
    Restitution 4 as criminal sanction:
       “Restitution” - an additional criminal sanction (restitution).
       But that is for many people not acceptable.
       They are caught in the law’s own logic:
       The offender must repair the damage in any case - as a civil law
        consequence - what then is the criminal law punishment? He will
        essentially “get away with his crime” - there will be no criminal
        sanction.
         Often in a cynical way unrealistic
         “ a joke”




    Prof. Dr. G.F. Kirchhoff, Tokiwa International
7   Victimology Institute                                          4/11/2012
    Restitution 5
     In the criminal justice system:
        Restitution Sentence: the offender is sentenced to repair the
         damage
        Restitution means, the offender (in the criminal law system) has
         to pay a certain sum to the victim.
        This sum must be fixed
            criminal law demands fixed punishments.
            many countries have “ indeterminate sentences”
                  They are against the principles of criminal law.




    Prof. Dr. G.F. Kirchhoff, Tokiwa International
8   Victimology Institute                                             4/11/2012
    Restitution 6
    Why are restitution orders so rarely used?
     Restitution is believed to be civil law.
       “Restitution in criminal law” is a wrong solution of the legislator.
       Civil law is not the field of the criminal law judge.
       Why should I do his job?
     Restitution orders would have to be enforced by the criminal
      court/prosecutor -
     Why should “we” give the victim the benefit of enforcing victim’s reparation
      right “for the victim” - while all other victims have to seek civil law
      sentences and enforce the sentence on their own?
         Take seriously the caretaking task of judge and prosecutor (to protect the
           victim)



    Prof. Dr. G.F. Kirchhoff, Tokiwa International
9   Victimology Institute                                                      4/11/2012
     Restitution 7
     Civil Law Claim in Criminal Procedure
      Adhesion Procedure
      Some legal systems allow the criminal law judge to
       decide at the end of the proceeding about uncontested
       civil law claims (reparation of damage according to civil
       law norms) in the criminal proceedings
      The reason is to save time and costs for the victim to get
       a title (for compulsory execution) - here is an easy way
       to provide such a title.



     Prof. Dr. G.F. Kirchhoff, Tokiwa International
10   Victimology Institute                                 4/11/2012
  Although the restitution order is made by a criminal
   court as part of an offender’s sentence, it is similar to
   a civil order in some aspects.
  If the offender does not pay the amount ordered, the
   victim can file the order in the civil court and use civil
   enforcement methods to collect the money.
  This is the rule in Canada, Germany, France.
  Often this is NOT successful.
  Understandably, under these conditions legislators
   and practitioners are reluctant to use restitution as a
   criminal sanction.

      Prof. Dr. G.F. Kirchhoff, Tokiwa International
11    Victimology Institute                                     4/11/2012
     Restitution 8 especially: Partie civile
      France: not only at the end of a criminal proceedings but
       at any time, the civil claim can be brought into the
       criminal proceeding.
      There are however limits:
          unnecessary delays in closing the criminal case
          civil claim only when offender is sentenced
            and judge finds it adequate to give restitution order in addition to
              punishment.
          The ability of the offender to pay a restitution order will be
            taken into consideration.



     Prof. Dr. G.F. Kirchhoff, Tokiwa International
12   Victimology Institute                                                    4/11/2012
     Restitution 9
     Restitution Orders
      In total, the attempts to vitalize restitution orders, have
        been met with resistance on the side of the judges
          why should I do the job of my civil law colleague?
      on the side of the prosecutor
        don’t we have a civil court? Why should I now get involved?
      on the side of lawyers
        when fees are not adequately regulated.




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
13   Victimology Institute                                       4/11/2012
     Restitution 9
     Restitution as independent criminal sanction
      The current unsatisfactory status of restitution orders are
       connected with their civil law character
      Therefore victimologists demand the introduction of a
       restitution sentence in criminal law as an independent
       sanction
          Enforced like a criminal sanction.




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
14   Victimology Institute                                 4/11/2012
     http://books.google.com/books?id=XovETqietDIC&pg=PA65&lpg=PA65&dq=Lois+Forer+Philadelphi
     a&source=bl&ots=ukp5ZBaufD&sig=uKINNfp_g0o4wJlu-
     MMfeCoxRDA&hl=en&ei=yv30SsfYI5iI6wOgweUQ&sa=X&oi=book_result&ct=result&resnum=5&ved
     =0CBEQ6AEwBA#v=onepage&q=Lois%20Forer%20Philadelphia&f=false

      “Restitution can be used as a sanction for serious offenders
        and for violent offenders. Extensive use of restitution for
        serious offenders by Judge Lois Forer in the Philadelphia
        Court of Common Pleas shows that such offenders can satisfy
        restitution orders while achieving recidivism rates at least as
        good as those comparable offenders who went to prison.
      (Weitekamp, E. (1995) : Restitution in Philadelphia. In: Tonry, M. and
        Hamilton, K. (eds.) Intermediate Sanctions in Overcrowded Times.
        Northeastern University Press 1995, p.65 - 68




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
15   Victimology Institute                                                          4/11/2012
     Prof. Dr. G.F. Kirchhoff, Tokiwa International
16   Victimology Institute                            4/11/2012
     Terminology in Victimology
 Compensation                                 Restitution


                                               Who pays it?
 Who pays it?
 The State                                    The Offender




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
17   Victimology Institute                                     4/11/2012
     Both systems are based on a law
      Texas                                           Germany
      1979, Crime Victims’                            1976 Opferentschaedi-
       Compensation Act,                                gungs - Gesetz
      Compensation to Victims
       of Crime Fund and the                           Federal and State Budget
       Crime Victims’                                   allocates money to
       Compensation (CVC)                               compensate some victims
       Program.                                         of crime,



     Prof. Dr. G.F. Kirchhoff, Tokiwa International
18   Victimology Institute                                                  4/11/2012
     Victim Compensation 2
     Aim of Victim Compensation
      Texas:
          To compensate the innocent victim for certain cash expenses
            (see below)
      Germany:
          To prevent that the victim declines under a certain social level
            due to consequences of violent crime




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
19   Victimology Institute                                           4/11/2012
        Victim Compensation 3
        What is paid?
      State pays for certain cash expenses victims regularly have
        TEXAS
      State pays
        for medical treatment
        for rehabilitation
        If medical rehabilitation is (partly) impossible, monthly rents for the
         living support of the (needy) victim
           Germany




        Prof. Dr. G.F. Kirchhoff, Tokiwa International
20      Victimology Institute                                           4/11/2012
     Victim Compensation 4
     How to finance compensation 4 slides
      Taxes
        State pays from the general tax budget
      Extra Income
        Gains of casinos and other gambling yields
             Poland
             (Germany partly in other areas of social programs)
                Advantage
                 o Savings for tax
                Disadvantage
                 o Limited funds
                 o Morally questionable income?
                 o Not predictable
          Gains from extra - stamps


     Prof. Dr. G.F. Kirchhoff, Tokiwa International
21   Victimology Institute                                         4/11/2012
     Victim Compensation 5
     How to finance compensation
          Surplus fines
            Canada, USA
              Increase of 10% on all fines
              Advantage
                o Relief for Finance Minister
                o Causation Principle
              Disadvantage
                o Limited funds
                o Punishment according to guilt
                o Not according to social tasks of the state




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
22   Victimology Institute                                     4/11/2012
     Victim Compensation 6
     How to finance compensation
      Confiscation of criminal gains
      Especially:
          Notoriety-for-profit
            Profits of the sale of the publication rights of the story concerning the
             offence
          Restitution surrogate means
              CVC pays to the victim
              Later the offender is caught and sentenced
              Judge can order that the offender has to repair the damage caused to
                the CVC



     Prof. Dr. G.F. Kirchhoff, Tokiwa International
23   Victimology Institute                                                       4/11/2012
     Victim Compensation 7
     How to finance compensation
      Subrogation
          CVC pays to the victim
          Later the victim takes the offender to civil court and is
           successful in getting a restitution sentence
          Then the victim must repay to the CVC what this agency has
           paid to the victim
          Criminal offence, if victim does not indicate this to the CVC
           (Texas)




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
24   Victimology Institute                                             4/11/2012
     German Compensation Laws in a
     Nutshell
      1976 Victim Compensation Law
      Who can claim?
          Victim
          Dependent survivors
            Children
            Widows
            Parents when entitled to be supported by victim
            (to – be - brides and their offspring from the victim)




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
25   Victimology Institute                                            4/11/2012
     Texas
      The primary purpose of the Fund is encouraging greater
        victim participation in the apprehension and prosecution of
        criminals and reimbursing innocent victims for certain out-
        of-pocket expenses incurred as a result of violent crime.




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
26   Victimology Institute                                    4/11/2012
     Texas: who is eligible?
      Crimes involving "criminally injurious conduct,“
        sex offenses,
        kidnapping,
        aggravated robbery,
        assaultive offenses,
        arson,
        homicide and other violent crimes in which the victim suffers physical or
            emotional harm or death.
      The following motor-vehicle-related crimes are also covered: Failure to Stop
        and Render Aid, DWI, Manslaughter, Criminally Negligent Homicide,
        Aggravated Assault, Intoxication Manslaughter and Intoxication Assault.




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
27   Victimology Institute                                                      4/11/2012
     Germany: who is eligible
      Victims of intentional violent crimes
      Not:
      Traffic offences
          Except: car is used as a weapon




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
28   Victimology Institute                            4/11/2012
     Victim Compensation 8
     What is covered? Germany
      General clause
      Medical treatment
      Full rehabilitation efforts
          Extensive and excellent system
      If damage severe enough:
      Loss of Capability to be Gainfully Employed (LCGE)
          Monthly installments
          Including medical treatment
          No time limit




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
29   Victimology Institute                                  4/11/2012
     Victim compensation:
     Texas: What is covered?
        medical, hospital, physical therapy or nursing care
        psychiatric care or counseling
        loss of wages due to medical treatment or participation in, or attendance at, the investigation, prosecutorial and
         judicial processes
        care of a child or a dependent
        loss of support
        funeral and burial expenses
        crime scene clean-up
        replacement costs for clothing, bedding, or property seized as evidence or rendered unusable as a result of the
         investigation
        attorney fees for assistance in filing the Crime Victims' Compensation application and in obtaining benefits (TCCP,
         Art 56.43)
        loss of wages and travel to seek medical treatment
        one-time relocation expenses for domestic violence victims or for those sexual assault victims attacked in their
         own residence




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
30   Victimology Institute                                                                                     4/11/2012
     Victim Compensation 10
     A typical decision ... Germany
      “You have suffered an injury from a violent crime against you
         which happened on the 12th of May 2004 and which is described
         like this:
        Loss of both under- arms from above the ellbow.
        The LCGE is 100%.
        The decision gives rights from 8th of August 2003 on.
        The Inability to be gainfully employed is given.
        You have the right to demand medical treatment.
        Reasons: …..




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
31   Victimology Institute                                        4/11/2012
             Victim Compensation 11 Germany

      “You have suffered an injury from a violent crime against
       you that happened on the 12th of May 2004 and which is
       described like this:
      Healed fracture of nose without compensable
       consequences
      LCGE is set to 0%
      Medical treatment costs are compensated from date of
       application.
      In all other respects the claim is rejected.
      Reasons…...


     Prof. Dr. G.F. Kirchhoff, Tokiwa International
32   Victimology Institute                                4/11/2012
     Victim Compensation 9
     What kind of decisions?
      Claim granted
      Claim partly granted:
          Damage by crime stated
          Medical treatment granted
          Rest rejected
      Claim rejected
          No crime
          No cooperation of victim




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
33   Victimology Institute                            4/11/2012
     Victim Compensation 12
     Results: Medical treatment compensation                   …..
      Right of compensation for medical bills
      In Germany this right is unimportant:
        Health insurance system in Germany:
               90% by virtue of a work contract
               7% covered by private insurances
               2% free medical care as members of police or of defense forces
               1% Federal Social Welfare Coverage
               Most medical bills are paid
      In Texas this right is an essential part of social security for
        victims!
          This is an example how much you must take into account before
            you compare!!!


     Prof. Dr. G.F. Kirchhoff, Tokiwa International
34   Victimology Institute                                                  4/11/2012
     Victim Compensation 13
     Physicians Powerful Role
      How much Loss of Capacity to be Gainfully employed is
       a decision of physicians
      Physicians have professionally difficulties with emotional
       damage
      In addition, system culture against emotional damage
      Consequence:
          Difficult to compensate for emotional damages
             Rape, Child abuse, Domestic violence




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
35   Victimology Institute                                 4/11/2012
     Victim Compensation 14
     Result Interim Facit:
      In Germany, 3% of all applications result in monthly
        installments
          Very good provisions for the 3%
            Victims and Survivors
      often never discussed in international literature:
      Possibility of Deterioration Claims
        This is the reason for the decision:
             You have been a victim …
      Slow system for needy victims
        but here steps in the general social security system for all citizen




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
36   Victimology Institute                                           4/11/2012
     Victim Compensation 15
     Requirement for a modern compensation system
      Since all social systems are vastly different, such a requirement
       cannot be stated generally.
      Victims need different provisions in different systems....
      In industrialized modern nations, this seems to be the future:
      Priority for emotional damages
         New generation of compensation systems
         Priority for emotional damage: prevention of development of
          PTSD
           Abolishment of the traditional system with priority of
            financial compensation
           Priority for treatment of emotional damages
           Pay for counseling
           Compensation systems may become independent from crimes
            qualifications,
                   basically for all accidents and crimes with emotional/physical
                    severe damage.

     Prof. Dr. G.F. Kirchhoff, Tokiwa International
37   Victimology Institute                                                    4/11/2012
      Complaints
          The system is not known to victims
          (UN Declaration: Information)
          The application forms are too complicated (see attachment for
            the Texas form)




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
38   Victimology Institute                                        4/11/2012
     Mediation 1
      Restitution orders cover financial damage. BUT:
      The damage of victims is threefold:
          emotional
          physical
          financial
      Main disadvantage is
          emotional damage not taken into account
          restitution orders are part of formal social control.
          informal social control is much more effective.
          (Explain)
          Therefore: reclaim the means of informal social control for the criminal law social
           control.
          A wise judge does this all the time, and a wise prosecutor as well - but that are
           informal side effects.




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
39   Victimology Institute                                                             4/11/2012
     Mediation 2
     Victim Offender Mediation
      There are attempts to try informal control mechanisms before the formal have
        to be used.
          This is a question of constitutional rank!
          explain
      What is needed?
          the criminal law must include a norm that permits judges and prosecutors to take the
           behavior of the offender after the crime into account when meeting out punishment.
          If offender behaves “positively”, then reduction of punishment or dismissal of the case.
          Positively can mean that offender tries to “repair” all damages the victim has suffered.
      Positive behavior can only be shown voluntarily - it cannot be forced upon the
        offender. That is granted. If the offender wants top have a crimkinal proceeding
        with sentencing at the end - ok.




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
40   Victimology Institute                                                              4/11/2012
     Mediation 3
      Most offenders would like to avoid a sentence .
      Most victims like to avoid a criminal proceeding if they
       get to know that the criminal law does nothing “for
       them”. Explain.
      In all systems, the prosecutor has a file that is the
       document for his decision: prosecute!




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
41   Victimology Institute                                 4/11/2012
     Mediation 4
      How does the alternative work?
          NGO is licensed by prosecutor to handle cases alternatively.
          The mediation program (MedProg):
            1. Prosecutor sends case to medprog with the request to try to mediate
             the conflict between offender and victim AND to report back to him.
            Medprog tries mediation.
            Feedback to prosecutor.
            (Prosecutor dismisses the case)




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
42   Victimology Institute                                                   4/11/2012
     Mediation 5
      MedProg has these steps:
        1. Info to victim
             criminal case results only in punishment, not in a title for your damage.
             Maybe it is more important for you to get the damage restored?
             MedProg can try that if you agree to work with us.
          2. Info to offender
            criminal case results in punishment. in addition you must repair the
              damage.
            We can open an alternative: you repair the damage and most probably you
              do not need to go to criminal court.




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
43   Victimology Institute                                                      4/11/2012
     Mediation 6
      3. Infos result in feedback:
      is feedback negative by one party - no alternative way,
       feedback to prosecutor.
      is feedback positive by both parties, then alternative is
       possible.
      4. MedProg tries to find out what the victim wants to
       see happen
          often an apology by the offender
          and the reparation of damage


     Prof. Dr. G.F. Kirchhoff, Tokiwa International
44   Victimology Institute                                  4/11/2012
     Mediation 7
      5. MedProg finds out what offender is willing to do to repair
       the emotional and the financial damage.
      6. If needed, a round table discussion can be managed
          But many other ways are possible




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
45   Victimology Institute                                     4/11/2012
     Mediation 8 Important Elements
      for all participants: voluntary participation, no pressure.
      neutrality of the mediator: The mediator is neither
       representative of victim nor representative of offender.
      Mediator is neutral,
          but that is unrealistic. Why?
            the nature of the beast NGO




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
46   Victimology Institute                                      4/11/2012
     Mediation 9
     Advantages

      1. for victim:
      Activity instead of passivity
      central,position for the victim, not „peice of evidence“
      victim can determine what is to be discussed in the
       mediation process
      it can describe the emotional damage
      it can avioid a civil proceeding and gets the damage
       easier repaired.


     Prof. Dr. G.F. Kirchhoff, Tokiwa International
47   Victimology Institute                                   4/11/2012
     Mediation 10
      5. it is possible to get to know why offender did did the
       crime.
      6. It becomes a more positive image of his role
          no cooperation in punishing the offender!
      7. Victim gets answers to questions that never will be
        answered in criminal proceedings




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
48   Victimology Institute                                      4/11/2012
     Mediation 11
      Advantage for Offender
      1. no punishment possible!
      2. o. can gain is=nsight in consequences of his behavior
      3. o. has opportunity to explain his „reason“ for the offense
      4. Offender is actively involved, is not passive
      5. quick end of the consequences of his actions: all depends on his
      activity
      6. experience of a positive role:



      Advantage for all of us
      Norm clarification in interaction process
      Increase of freedom by reduced use of force
      Reclaiming the means of informal social control
      reinforcement of the rule of law in society

     Prof. Dr. G.F. Kirchhoff, Tokiwa International
49   Victimology Institute                                                   4/11/2012
Restorative Justice 1
      is the headline for all endeavors that use means of formal social control to
       restore the wounds that are caused by crime
      often the criminal justice process is impossibly slow and can not handle
       consequences of mass crime, wars etc.
      e.g. mass victimizations in the concentration camps of Nazi regime in Germany
       - attempt to punish the main offenders - but that did nothing for the victims and
       did nothing for repairing the emotional, physical and financial damage to the
       survivors
          answer was the payment of large sums of money which were used to provide medical,
            psychological and social assistance to surviving victims and their families
      e.g. after the mass victimizations by the apartheid - regime in South Africa and
        the success of the transfer of power to the non-white government if South
        Africa, the leaders of the tribes in South Africa developed the so called
          “Truth and Reconciliation Commissions”.




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
50   Victimology Institute                                                                4/11/2012
     Restorative Justice 2
      The model was very successful in preventing a civil war and an explosion of the
         South African society.
        A simplified description is this:
        In a process of several years, the different political groups in South Africa
         discussed this alternative model:
        a forum is created for victims and the alleged offenders. Participation is
         voluntary.
        If offenders confess their role in the crimes and answer to the questions of
         victims honestly and satisfactorily, then the Truth and Reconciliation Committee
         pardons the offenders.
        In addition, the TRC documents and publishes the proceedings.




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
51   Victimology Institute                                                      4/11/2012
     Paavani Reddy : Truth and Reconciliation Commissions. Instruments for Ending
     Impunity and Building Lasting Peace
     for the UN Chronicle :
     http://www.un.org/Pubs/chronicle/2004/issue4/0404p19.html
      Different circumstances in each of the regions where TRC were held.
      Common was
            widespread use of violence,
            including disappearances,
            murder,
            torture,
            rape
            illegal detentions
            the goal of the “old government” to hold down popular demands for democracy and
             human rights and for self-governance.
      Newly-established post conflict or interim governments had to address the past
       and its state abuse of power
      while building a stable future based on a democratic society.




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
52   Victimology Institute                                                          4/11/2012
     Restorative Justice 4
      That was difficult
        - the offenders perpetrators and their followers and
         sympathizers were often in influential positions in government,
         including the judiciary, police and military, making prosecutions
         difficult.
        - the old regime tried to obscure evidence
      In response to these and other problems, a a non-judicial
        approach was adopted.



     Prof. Dr. G.F. Kirchhoff, Tokiwa International
53   Victimology Institute                                        4/11/2012
     Restorative Justice 5
      First Ruanda – Burundi
      More than thirty truth commissions worldwide, including in Argentina, Chile,
       Timor-Leste, El Salvador, Guatemala and more importantly South Africa and
       Ireland.
      Their success is remarkable.
      They are the only feasible method
          to establishing the truth of past crimes
          to provide a basis for victim compensation
          to install instruments to promote peace and reconciliation.
      United Nations Secretary-General’s report on “The rule of law and transitional
       justice in conflict and post-conflict societies”
      for systems in transition, there has not been found a better solution.




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
54   Victimology Institute                                                      4/11/2012
     Restorative Justice 6
      Advantages
      1.Victims can be heard!
      Often for the first time, victims could bring to public
       attention their sufferings.
      The accounts are basis for public acknowledgement of the
       grave injustices they suffered.
      Often TRCs make recommendations for future handlings of
       the needs of victims.




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
55   Victimology Institute                                       4/11/2012
     Restorative Justice 7
      2. Documentation for the facts are the base for knowing the
       truth.
      Often rejected by official government accounts, TRCs
       describe :
            what Human rights were injured?
            What really happened?
            Who were the offenders?
            Why were the crimes committed?
      These reports are widely discussed. They form the new
        nations base on which awareness and respect for Human
        Rights can grow.

     Prof. Dr. G.F. Kirchhoff, Tokiwa International
56   Victimology Institute                                      4/11/2012
     Restorative Justice 8
      3. Manifest of the will that the future is different!
        Demonstrate the difference between the current new governments and the old governments, help
        the credibility of new governments and lead them to support other peace building measures.




     Prof. Dr. G.F. Kirchhoff, Tokiwa International
57   Victimology Institute                                                                 4/11/2012
4. Promote peace and reconciliation.

 The commissions have successfully addressed gross human rights violations during
  conflicts.
 They promoted peace.They helped to achieve reconciliation.They made it possible
  that change occurred without new bloodsheds and civil war.
 They gave societies, groups and individuals an alternative way to somehow deal with
  otherwise truly unmanageable and unforgiveable injustices, helping to stop the wheel
  of revenge and counter-revenge.
 The United Nations plays an active role in supporting TRC efforts.

 A new field emerged for young scientists : “Peace Building” and
     “Transitional Justice” - European Center is the University of Leuven .




         Prof. Dr. G.F. Kirchhoff, Tokiwa International
58       Victimology Institute                                                           4/11/2012

								
To top