Victim Compensation Presentation for the Lawyers

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Victim CompensationPresentation for the Lawyers
Commission on Compensation Reform in Japan

• by
• Prof. Dr. jur. Gerd Ferdinand Kirchhoff
• Tokiwa Daigaku Mito Japan

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What do we do in this presentation?

• General ideas
• Why compensation for certain crime victims only?
  AND NOT FOR OTHERS?
• Goal of crime victim compensation
• How to finance?
• Requirements for a victim oriented compensation
  system

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Terminology in Victimology

• Compensation
• Who pays it?
• The State

• Restitution
• Who pays it?
• The Offender

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This Terminology is important

• In texts, you find a different use of the word
  compensation the victimological distinction
  between restitution and compensation is not made,
  especially in the early days
• everyday language is not very correct
• It uses
• Reparation or Indemnification or restoration
• Restitution
• Compensation
• interchangeably
• Little help in the search for clarity
• legal language is quite confusing
• authors do not differentiate like scientists
  should
• One of the rare examples where social science
  terminology is more exact than law

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Why should we compensate?

• Several theories advanced
• Ex gratia-theory
• Victim compensation is paid Ex gratia core
  sentence It is an act of grace for the benefit
  of the victim
• Victim does not have a legal right to receive it
• State gracefully awards money
• In the 21rst century, such a justification is
  completely out of date!

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Why?

• Consequence of States Monopoly to Use Violence
• State acquired the monopoly to punish
• Victims are not permitted to use violence
• From this, state has the obligation to protect
  citizen
• State is liable if protection fails
• Practically none - sense since no state
  compensates for all crimes
• Victims Sacrifice
• States are no longer police states. They respect
  basic freedoms
• While everyone is threatened by crime, victims
  pay a special toll which others do not pay
• This is like the liability of State for
  vaccination accidents
• Special sacrifice must be honored by
  compensation paid to victim

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Why?

• Social solidarity
• Society has to respect human dignity of victims
• By showing solidarity with victims
• State must grant that victims do not get socially
  so much damaged that they fall below the social
  minimum standards of decent living
• if victims cannot get restitution
• if no other remedy is open for them

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What?

• State pays for certain cash expenses victims
  regularly have
• TEXAS
• State pays
• for medical treatment
• for rehabilitation
• medical rehabilitation is (partly) impossible,
  monthly rents for the living support of the
  (needy) victim
• Germany

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Principles and Political Decisions

• Lawyers usually know the order of the existing
  social system
• Principles which justify the existing order
• Lawyers in the service of the existing order
• Serving the interests of the powerful
• Therefore changes are rarely based on legal
  considerations
• It takes a political decision to act
• Only if this political decision is made, law can
  guide ideas how to translate the decision into
  action

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Aim of Victim Compensation

• Texas
• To compensate the innocent victim for certain
  cash expenses
• Germany
• To save the victim from declining under a certain
  social level

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How to finance compensation?4 slides

• Taxes
• State pays from the general tax budget
• e.g. Germany
• Extra Income
• Gains of casinos and other gambling yields
• e.g. Poland
• (Germany partly in other areas of social welfare)
• Advantage
• Savings for tax
• Disadvantage
• Limited funds
• Morally questionable income?
• Not predictable
• Gains from Extra - Stamps

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How to finance?

• Surplus Fines
• Canada, USA
• Increase of 10 on all fines
• Advantage
• Relief for Finance Minister
• Causation Principle
• Disadvantage
• Limited funds
• Punishment corresponds to the degree of guilt
• and not to financial needs of the state

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How

• Confiscation of criminal gains
• Especially
• Notoriety-for-profit
• Profits of the sale of the publication rights of
  the story concerning the offence
• Means of Restitution Surrogates
• CVC pays to the victim
• Later the offender is caught and sentenced
• Judge can order that the offender has to refund
  the CVC as far as CVC has paid to victim

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• 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)

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• Germany
• cessio legis
• If CVC pays, the right to claim restitution of
  damage is transferred by law to the paying CVC
• The victim can no longer claim restoration of
  damage from the offender in civil court

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Demands

• A modern compensation system
• It should be simple
• It should be open to judicial review
• It should help victims to cope with their damage

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The naïve view of victims damage

• There are crimes described in the criminal law,
  protecting certain legal goods
• These norms provide punishment for the damage of
  certain legal goods such as
• Physical integrity
• Sexual self determination
• Property
• Cost of reparation of these damages top legal
  goods of the victim constitutes the damage

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Victimological view

• Victimizations are invasions into the self of the
  victim
• Rank order of severity
• Victimizations destroy fictions, kind of fairy
  tales we tell ourselves about us and about life
• we need these fictions to socially function well
  
• These fictions must be reconstructed or adjusted
  to enable social functioning
• Collateral damage must be restored
• Restoration of health Medical bills
• Restoration of income social costs
• Restoration of safety protection costs

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Three levels of damage

• Emotional damage
• Physical damage
• Material damage
• Three dimensions of damage has to be checked in
  each and every victimization!!!!
• People trained exclusively in law tend to see
  only material damage

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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)

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German Compensation Laws in a Nutshell

• Which agency is to administer CVC?
• A new one?
• Existing one?
• War Victim Compensation Administration
• Advantage
• Extensive experience
• Juridical review created a body of knowledge in
  this field of law
• Very highly esteemed administration
• Free capacities since war victims become less and
  less numerous the longer the war is finished
• Disadvantage
• Level of acceptable damage high due to war
  standards
• No special victimological knowledge in
  administration or in jurisprudence

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Who informs the victim?

• Victimologists claim that citizens are not
  sufficiently informed about CVC
• are citizens informed about other laws?
• Germany
• Norms who describe concretely who has to inform,
  are missing,
• there are norms describing the authority over
  definite parts of the whole process
• Clear ascription of tasks is needed
• Police
• Prosecutor
• Court
• There is a social system of general compulsory
  health insurance (chi)
• contributions to finance it come half from the
  employer, half from the employee
• currently the system is under constant flak of
  modern manager ideology
• promote private initiative! Kill socialistic
  pampering!
• chi inform the victim and request applications

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Alternative

• Texas
• Victim has the right to demand information on CVC
  and right to get information on CVC (N)
• Posters in Emergency Rooms of Hospitals (N)
• Police
• Informs and has application forms
• At first contact victim must be informed in
  writing (N)
• Creation of a Victim Assistance Coordinator
• Prosecutor
• Within ten days after accusation is sent to
  court, help in applying for CVC must be offered N
  (!!)
• Creation of a Victim Assistance Coordinator

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What do they pay?

• Medical treatment
• Full rehabilitation efforts
• Extensive and excellent system
• If damage severe enough
• Monthly installments
• Including medical treatment

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How does it work?

• Victims send in Application Form
• Or CVC sends application form to victim, inviting
  application
• Role of Compulsory Health Funds CHF
• (Krankenkassen ./. Krankenversicherungen)
• Health Insurance ./.Compulsory Health Funds

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• Registration and Investigative Requests
• Routinely from victim certificate of residence
  and copy of ID or passport
• Routinely from Health Cashier and hospitals
• Medical history, diagnosis
• Routinely from Prosecutor or if applicable from
  Police or Court
• Send original file

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• If administrative case worker believes, the case
  is ready for decision, s/he hands the file to the
  decider
• Usually this is the department chief, lawyer
• Decides whether in principle there is
  compensation to be granted or not
• Legal abstract decision excluding medical proof
• Concrete questions to the physician
• Usual How much LCGE?
• LCGELoss of the capacity to be gainfully employed

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• Medical department
• Usually decides using information collected in
  the file
• Otherwise invites victim for a medical checkup
• Either by in-house physicians
• Or by external experts
• THAT TAKES TIME, TIME, TIME .
• At the end the physician informs the department
  head, the decider

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• Now all evidence is collected, and decider as a
  jurist decides
• Usually following the suggestion of the
  physicians
• Occasionally decision deviates from the
  suggestion of the medical department
• Decision is sent in writing with reasons to
  applicant

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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

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What does the CVC decide

• 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 elbow.
• The LCGE is 100.
• The decision gives rights from a said date on.
• The LCGE percentage is stated.
• You have the right to demand medical treatment.
• Reasons ..
• Information on the right to appeal this
  decision.

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• You have suffered an injury from a violent crime
  against you which happened on the (date of the
  victimization) 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 the incident.
• In all other respects the claim is rejected.
• Reasons...

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• Information about appeal possibilities
• usually at the end of the decision
• against this decision you have the right of
  contradiction .
• Contradiction within 4 weeks after victim
  receives the decision (formal proof)
• Contradiction leads either to a correction of
  the decision by the decider
• Or decider gives the file to his superior.
• If superior holds the decision
• Contradiction Decree
• against this, appeal to the court is given.

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• Contradiction decree with 3 parts
• Factual basis of the decision
• Legal basis of the decision
• Information about appeal against this decision to
  the Court in . Within 4 weeks after receiving
  this decree.
• In rare cases, the victim goes to court with a
  clear demand
• More about the court proceedings? Please ask .

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Research in Victim Compensation

• How does it work in real life?
• Evaluation Research
• Not normative legal study but social science
  research
• 1976 1981 in North Rhine Westphalia
• 2 years of applications
• 11 offices in the state
• Total 2800 applications
• Describe what we did

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Results

• Most victims were informed by the local office of
  the CHF
• Health insurers compensation law
• That is a shortcoming
• It abuses the victim for administrative
  purposes
• Problem No cooperation of victims
• Problem Unnecessary claims
• SUBSIDIARY PRINCIPLE
• Payer of last resort
• Priority payer with the right to get refunded by
  victimizer or other sources

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Results Medical treatment compensation ..

• Right of restoration for medical bills and
  medication in past is an empty, fruitless right
  in most cases
• Health coverage 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
• CHFO motivated claims reduced

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Results CVC and Physicians

• Monthly Installment Compensation fully or partly?
  
• According to the Loss of the Capability to be
  Gainfully Employed (LCGE)
• MdE Guidelines
• Derived from War Victim Compensation
• High threshold
• 25 Loss of CGE
• Has to last 6 months at minimum

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Physicians powerful role

• How much LCGE, is a decision of physicians
• Physicians have professionally difficulties with
  emotional damage
• In addition, system culture against emotional
  damage
• Consequence
• No compensation for emotional damages
• Rape
• Child abuse
• Domestic violence

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Emotional damage neglected

• Problem
• Lawyers traditionally are unskilled in seeing or
  validating emotional damages
• War Victim Compensation history
• Learned inability of physicians
• Psychologists seen as unwelcome competitors
• Discrimination against psychological treatment as
  to be paid by traditional Health Cashiers
• Closeness to criminal justice system
• Which needs victim suffering to justify
  punishment

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Interim Result

• Very good provisions for the 3
• Victims
• Survivors
• Possibility of Deterioration Claims
• This is the reason for the decision
• You have been a victim
• Slow for needy victims

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• Too many applications which ended in an
  administrative refusal to pay
• 77 for formal reasons
• 20 Damage but no damaging consequences
• LCGE not high enough
• 3 who made it to monthly installments

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Triangulation of problems

• Basically these questions came out of the first
  evaluation research
• How does the compensation system recognize
  emotional damages?
• How does it pay for treatment for emotional
  damages?
• How are victims quickly informed?

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The players .

• Cologne University Institute for
  Psychotraumatology
• Gottfried Fischer
• Cologne State Police
• Commissariats for murder, assaults, arson, etc.
  have contact to personal victims
• CVC
• pays compensation and receives claims

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• Police informs victim of availability of
  preventive counseling
• All victims? No
• Only those victims in danger of severe
  psychological damages
• Checklist of Probability of PTSD
• University developed
• Easily applicable by police
• Seven point threshold
• If threshold value reached, counseling is offered
• if victim agrees
• Information goes via email or fax to University
• Date of counseling is offered via email or fax
• No waiting lists

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• Psychologists specialized in psycho
  traumatology evaluate the victim according to the
  likelihood of PTSD
• CVC is informed and financial coverage requested
• 8x 90 minutes sessions are granted to be paid by
  CVC
• In this time, the official application form has
  to arrive at the CVCOffice

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Demand

• Priority for emotional damages
• New generation of compensation systems
• Abolishment of the traditional system with
  priority of financial compensation
• Priority for treatment of emotional damages
• Abolishment of crimes qualifications
• Crimes of violence
• Crimes with personal injury
• Crimes which cause emotional or physical injury
  resulting in special financial losses

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• Thank you for your patience!
• Prof. Dr. Kirchhoff