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Victims’ Rights

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  1. Victims’ Rights Michael O’ConnellCommissioner for Victims’ RightsTOT Victimology & Victim AssistanceLPSK 18-28 Maret 2013

  2. What is the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power? An inspirational document – states what is desired – hopefully nation-states will act (that is treat victims of crime and abuse of power in compliance with the declaration) Compared to conventions and treaties, the declaration is ‘soft law’ – it is not enforceable Endorsed by the UN General Assembly in 1985 – 128 members voted for and no member voted against. Victims’ movement advocates often call the declaration is often the ‘Magna Carta’ on victims’ rights

  3. What is the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power? The Declaration was the product of collaboration between members of the UN Office of Drugs and Crime (UNODC) and Civil Society (including the World Society of Victimology). It was debated at the UN Crime Congress (convened by the UNODC) in Zagreb, Croatia, in 1985. Developed and Developing Nations discussed elements of the draft declaration. An agreement was made at the Crime Congress to recommend the declaration to the UN General Assembly.

  4. Most discussion and debate was on what ‘victims’ (korban) should be included in the declaration All members of the Crime Congress agreed that ‘victims of crime’ should be included. However, there was debate on whether to include ‘victims of abuse of power’. Garkawe (2011) wrote that developed nations did not want ‘victims of abuse of power’ included but developing nations wanted ‘victims of abuse of power’ included. What is the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power?

  5. Developed and developing nations agreed to a compromise – ‘victims of abuse of power’ are included but have less ‘rights’ that ‘victims of crime’ ‘Victims of crime’ are covered in Articles 1 to 17 whereas ‘victims of abuse of power’ are covered in Articles 18 to 21 Articles 18 to 21 at general statements but Articles 1 to 17 are (when compared to 18-21) specific statements. What is the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power?

  6. ‘Victim of Crime’ – defined in Article 1 as person(s) who have suffered harm {which is defined broadly} through acts or omissions that are in violation of criminal laws as defined by national laws. ‘Victims of Crime’ can be an individual or a collective of individuals Definition is ‘linked’ to each nation’s criminal laws. What is the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power?

  7. Article 2 – a person is a victim regardless of whether the perpetrator (suspect, defendant, offender) is identified, apprehended, prosecuted, convicted, acquitted. A person is a victim regardless of the relationship between the victim and the perpetrator Victims included immediate family and dependants. Victims include people who assist (help) or intervene to prevent victimisation. What is the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power?

  8. Nation-states are ‘expected’ to Provide victims of crime with ‘Access to Justice and Fair Treatment’ (Articles 4 to 7) Provide for victims of crime to receive restitution {payment for the offender} (Articles 8 to 11) Provide for victims of ‘violent crime’ in particular to receive compensation {payment from the nation-state} (Articles 12 to 13) Provide medical, therapeutic, practical and other assistance (Articles 14 to 17) What is the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power?

  9. Victim of abuse of power – Defined as person (people) who suffer harm (which is defined broadly) through acts of omissions that do not yet constitute violations of national criminal laws but are violations of internationally recognised human rights norms. Who is a victim of abuse of power is ‘linked’ to human rights norms that are not clearly defined, interpretation varies and are controversial in some nation-states. What is the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power?

  10. Garkawe (2011) said there are two types of victims of abuse of power: Type One - Victims of CRIMES by State Officials (for example, Military and Police) and others who have not been investigated or prosecuted. These ‘non-prosecutorial victims’ are victims of crime (by definition in the declaration (see also Article 2)) What is the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power?

  11. Garkawe (2011) said there are two types of victims of abuse of power: Type Two – victims of acts or omissions that governments do not criminalise that should be criminal offences but are not criminalised because such governments are immoral. Victimologist, Leroy Lamborn describes victims of immoral abuse of power: Human-beings who suffered discrimination, forced removal and human rights violations under apartheid (for example South Africa); Human-beings who were victimised ‘legally’ under Nazi laws in Germany. What is the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power?

  12. Articles 19 to 21 are written in broad terms because they are the product of political compromise. Victims of crime are better acknowledged and have more (potential) rights (entitlements) than victims of abuse of power. What is the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power?

  13. The declaration is important because: It comprises universally agreed ‘principles’ on justice for victims of crime and abuse of power. It states victims are deserving of attention internationally, nationally and locally. It shows that victim advocacy can be persuasive. It is a ‘blue-print’ (plan with guidelines) for action. What is the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power?

  14. The declaration has been an influential document: Articles 24 – 25 Convention Against Transnational and Organised Crime Articles 6 – 8 Protocol on Trafficking in Human-beings Article 68 of the Statute for the International Criminal Court(see also Rules and Procedures) Identify Other International Victims’ Rights Instruments

  15. Identify Other International Victims’ Rights Instruments • According to the ICC ‘Rome’ Statute and the Rules of Procedure and Evidence, victims[1] (or their legal representatives [2] where the Court thinks it is appropriate) can: • present their views and concerns before the Court • make representations to the Pre-Trial Chamber in relation to whether or not an investigation should be opened[1] Under the Rome Statute, a ‘victim’ a person who has suffered harm as a result of the commission of a crime within the jurisdiction of the ICC may include organisations or institutions that have sustained direct harm to any of their property, which is dedicated to religion, education, art or science or charitable purposes, and to their historic monuments, hospitals and other places and objects for humanitarian purposes. • [2] Victims are free to choose their own legal representation but if there are a number of victims, the Chamber may request that the victims choose a common legal representative.

  16. Identify Other International Victims’ Rights Instruments ICC ‘Rome’ Statute and the Rules of Procedure and Evidence (continued): • receive notifications, including whether a Prosecutor intends to seek permission to conduct an investigation, and decisions to hold a hearing to confirm charges; • submit observations to the Court; • participate in hearings; • access non-public documents; and • request reparations

  17. Basic Principles and Guidelines on the Right to a Remedy and Preparations for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law United Nations Convention on the Rights of the Child, theOperational Protocol on the sale of children, child prostitution and child pornography.(See also Stockholm Declaration adopted at the first World Congress against Commercial Sexual Exploitation of Children, the Yokohama Global Commitment adopted at the second World Congress against Commercial Sexual Exploitation of Children, and the United Nations General Assembly Resolution on ‘A world fit for children’. Guidelines on Justice Matters involving child victims and witnesses of crime adopted by the UN ECOSOC.) Identify Other International Victims’ Rights Instruments

  18. Identify Other International Victims’ Rights Instruments • Other United Nations instruments on victims' rights include: • The International Covenant on Civil and Political Rights (ICCPR); • The Convention on the Elimination of Discrimination of Women (CEDAW); • The Convention on the Rights of the Child (CRC). • The ICCPR, for example, incorporates the following provisions related to victims' rights: Rights to be protected from harm, which impose obligations on governments to have effective criminal justice systems (Article 6.1, Article 7, and Article 17) Rights to be recognised by and treated equally before the law (Articles 2, 3, 16, and 26) A right of non-discrimination (Article 2) Rights to a remedy and to access to justice (Articles 2 and 14) Due process rights (Articles 9, 10, 14, and 15)

  19. Identify Other International Victims’ Rights Documents

  20. Identify Multination / Regional Victims’ Rights Instruments

  21. The UN Declaration of Basic Principles of Justice for Victims of Crime (and Abuse of Power) - Summary Victims of crime have the right to: • Be treated with respect and recognition (Article 4) • Receive information (Articles 6a and 15) • Allow their views to be presented and considered (Article 6b) • Proper assistance throughout the legal process (Article 6c) • Protection of privacy and physical safety (Article 6d) • Informal dispute resolution (including mediation) (Article 7) • Practical, medical and other assistance (Article 14) • State compensation (Article 12)

  22. The UN Declaration of Basic Principles of Justice for Victims of Crime (and Abuse of Power) - Research • 1989 General Assembly ‘plan of action’ & ECOSOC Resolution 1989/57 • 1994 Questionnaire • 1997 Handbook on Justice for Victims of Crime • 1997 Guide for policy makers • Professor Marc Groenhuijsen’s general conclusion: implementation is still unsatisfactory

  23. What is the draft Convention on Basic Principles of Justice for Victims of Crime (and Abuse of Power)? • Arguments in favour of a United Nations Convention • Increase visibility of victims’ issues • ‘Hard law’ puts more pressure on governments • Courts will take it more seriously • Provides a framework for analyses (benchmark) • Ratification process & motivation • Status of Declarationhas been diminished (Garkawe 2009, 2010; Groenhuijsen 2011)

  24. What is the draft Convention on Basic Principles of Justice for Victims of Crime (and Abuse of Power)? • Arguments against a United Nations Convention • Standstill during negotiation • Risk existing victims’ rights could be diluted (watered down) (Garkawe 2009, 2010; Groenhuijsen 2011) • Convention fatigue

  25. What is the draft Convention on Basic Principles of Justice for Victims of Crime (and Abuse of Power)? • Content of DRAFT Convention: • Preamble and 25 articles, divided into four parts • Part 1 General considerations (Articles 1 to 4) • Part 2 Rights and duties (Articles 5 to 11) • Part 3 Implementation, monitoring & cooperation (Articles 12 to 16) • Part 4 Concluding provisions (Articles 17 to 25) (Groenhuijsen 2010, 2011)

  26. What is the draft Convention on Basic Principles of Justice for Victims of Crime (and Abuse of Power)? • Content of DRAFT Convention – Improvements (Article 3): • “[To] implement … provisions to the maximum extent of their available resources.” • No discrimination - race, color, gender, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin, and disability. • Special justice and support for “particularly vulnerable victims” • Ensure “all officials and other persons dealing with victims treat them with courtesy, compassion, cultural sensitivity, and respect for their rights and dignity”.

  27. What is the draft Convention on Basic Principles of Justice for Victims of Crime (and Abuse of Power)? • Content of DRAFT Convention - Improvements: • Commitment to reduce repeat victimisation • Strategies to reduce the opportunity for repeat victimisation (Article 4) • “[V]ictimisation is the best predictor of victimisation” (Farrell 1992) • “[C]onsidering vulnerable groups and identifying resource deficiencies and vulnerability factors; and, creating ways to neutralize these weaknesses.”

  28. What is the draft Convention on Basic Principles of Justice for Victims of Crime (and Abuse of Power)? • Content of DRAFT Convention - Improvements: • Access to the mechanisms of justice and redress which is expeditious, fair, inexpensive and accessible, as provided for by domestic legislation (Article 5) • Judicial review of decision not to prosecute a case to enable redress, if appropriate • Groenhuijsen (2010, 2011) says this provision is superior to the traditional remedy of private prosecution) • Informal mechanisms for resolution of disputes • Entitled to a fair hearing • Presenting ‘impact’ information to sentencing court

  29. What is the draft Convention on Basic Principles of Justice for Victims of Crime (and Abuse of Power)? • Content of DRAFT Convention - Improvements: • On restitution the declaration provided that offenders should make fair restitution, and restitution should be a sentencing option. • On restitution the draft convention (Article 5) seeks to ensure the enforcement of any order or decree granting awards to victims • Article 10 - when there is a Court order for restitution, the State Party shall be responsible for enforcing the order

  30. What is the draft Convention on Basic Principles of Justice for Victims of Crime (and Abuse of Power)? • Content of DRAFT Convention - Improvements: • Right to receive information (Article 7) • “[Oral] or written communication with concern for literacy and literary traditions” • Long list of items • “[In] cases where there might be danger to the victims, they shall be notified when the person prosecuted or sentenced for an offence is released”” • Opt out procedure (Groenhuijsen 2010, 2011)

  31. What is the draft Convention on Basic Principles of Justice for Victims of Crime (and Abuse of Power)? • Content of DRAFT Convention - Improvements: • More sophisticated provisions on ‘assistance’ (Article 8) • Establish local and regional victim assistance centres • Facilitate referral of victims by the police • Distinguish between: • Immediate assistance • Medium term assistance • Long term assistance (Groenhuijsen 2010, 2011)

  32. What is the draft Convention on Basic Principles of Justice for Victims of Crime (and Abuse of Power)? • Content of DRAFT Convention - Improvements: • Restorative justice (Article 9): (1) State parties shall endeavour, where appropriate to establish or enhance systems of restorative justice, that seek to represent victims’ interests as a priority. States shall emphasise the need for acceptance by the offender of his or her responsibilityfor the offence and the acknowledgement of the adverse consequences of the offence for the victim in the form of a sincere apology. (2) State Parties shall ensure thatvictims shall have the opportunity to choose or not to choose restorative justice forums under domestic laws, and if they do decide to choose such forums, these mechanisms must accord with victims’ dignity, compassion and similar rights and services to those described in this Convention.

  33. What is the draft Convention on Basic Principles of Justice for Victims of Crime (and Abuse of Power)? • Content of DRAFT Convention - Improvements: • The real challenge for Restorative Justice: • Maximizing potential benefits while minimizing potential risks • Issues: • Full policy of free consent • Limits to confidentiality • Avoiding insincere apologies (Groenhuijsen 2010, 2011; O’Connell 2011)

  34. What is the draft Convention on Basic Principles of Justice for Victims of Crime (and Abuse of Power)? • Content of DRAFT Convention - Improvements: • Implementation & monitoring • Committee of Justice and Support for Victims of Crime and Abuse of Power • Composition of the Committee • The fact finding process (Groenhuijsen 2010, 2011)

  35. What is the draft Convention on Basic Principles of Justice for Victims of Crime (and Abuse of Power)? • Next steps to advance the case for a Convention: • Crime Commission meeting - 2013 • Thirteenth Crime Congress - 2015 • Seek support from European Union • Seek a human rights route but with a criminal justice dimension (that is continue to purse Vienna or begin Geneva) (Groenhuijsen 2010, 2011) Give up seeking a convention for all victims of crime and focus on ‘specific’ victims (as happened for trafficking victims and children as victims.

  36. What is the draft Convention on Basic Principles of Justice for Victims of Crime (and Abuse of Power)? Controversial issues: • Definition of ‘victim’ (of ‘abuse of power’) • Article 4 on crime prevention • Article 5.2(e) to appeal a prosecutorial decision • Specific provision for police behaviour • Separate section of definitions (e.g. reparation, restitution, restorative justice) • Cross-border victimisation • Power of the committee to make on-site visits • Remedies in cases of violations of victims’ rights (Groenhuijsen 2010, 2011)

  37. Identify Victims’ Rights in Domestic Law • Victims’ rights have been integrated into domestic law in many nation-states. • Next session