Irvin Waller

Truth about justice for victims

Recognizing that billions of people, including many women and children, throughout the world still suffer harm as a result of crime, 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,

Unfortunately large numbers of persons are still victims of crime and violence. Even if politicians act swiftly on preventive policies demonstrated in Less Law, More Order to reduce crime and victimization, there will still be some victims of crime who will suffer loss, injury and trauma with few remedies. Worse still they will be ignored and their plight exacerbated by our system of law enforcement and criminal justice.

Recalling the resolution of the UN General Assembly (GA/RES/40/34) in 1985 agreed by all governments 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,

Much of what is needed to do justice to support for victims has been agreed by governments through an international human rights instrument given the long title of the UN Declaration on Basic Principles of Justice for Victims of Crime and Abuse of Power. This Declaration was agreed with active support of all governments, including the US Government through its Office for Victims of Crime in the US Department of Justice.

The rights of victims are as important as any other human rights. In Europe and other developed countries, the needs of victims of crime and abuse of power are met through legislation, services, and reparation. In the USA, services for victims of crime have been funded from fines on federal offenders rather than taxes. These offenders are often large rich companies who can pay the funds for victims hundreds of millions of dollars - a procedure that could be adopted anywhere.

Noting the partial progress achieved by some governments in

" legislating the basic principles of justice into domestic laws combined with a high level office to implement policies and programs to provide comprehensive measures for victims of crime;

" providing victims of crime with better information, support services, reparation from offenders, compensation from the state and a role in criminal proceedings;

" establishing programs to protect victims of crime who are vulnerable, for instance because of gender or age;

" launching permanent boards and legislation to promote the use of effective and proven prevention of victimisation at all levels of government.

There is much rhetoric on doing justice and support for victims. Indeed there are often laws and a patchwork of services to implement those laws. But much needs to be done to make support services universal, to get restitution paid, and to provide equitable compensation.

Police must pay more attention to victims of crime or risk losing their source of information for most crime. This must include making female officers available to female victims, referral of victims to community support services and providing information on how to prevent repeat victimization.

Systems such as Gaçaça provide more comprehensive models for restorative justice than the patchwork of processes in place today in the USA. While the US has not endorsed the International Criminal Court, the Statute of Rome provides the single best model of how victims should be dealt with in a court system.

Some restorative justice processes that involve the victim reduce the desire for retaliation and so are important ways of preventing crime.

In France, victims have lawyers in criminal courts who may be paid through legal aid. Japan has recently adopted a model law on how to implement the UN declaration, including similar provisions. For India, the Commission for Reform of Criminal Justice has called for an overhaul of criminal justice to make it more responsive to victims, and to provide rights and reparation.

It is time in legal systems such as that in New Zealand or Canada to move beyond token victim impact statements or restorative justice processes which do not guarantee victims´ participation. By combining the criminal and civil jurisdictions in one court process, we would enable victims to have standing to defend their personal interests in their safety, reparation and truth.

But what is needed more than anything else is to provide victims with a remedy to get that action, likely through a constitutional amendment such as that almost adopted in 2004. This should be combined with legislative approval of the following sections from the draft UN convention for victim justice.

Though the estimates on costs are only ball park figures, doing justice to support for victims would require an allocation or reallocation of four percent of what is currently spent on law and order - two per cent for support and legal remedies and two per cent for reparation. Why not?

I am proposing that governments adopt a Victims of Crime Act that would put the UN principles on justice for victims of crime into national legislation with an office for victims of crime whose role is to ensure the implementation of those principles in practice. This legislation would also identify the role of the civil party in the criminal process.

• UN principles expressed in legislation
• Office for victims of crime
• State compensation for violence, services to support victims, legal assistance (empower restitution)
• Civil party to criminal process with right to remedy to protect:
  • - be heard at any hearing, involving release, plea, sentencing or parole
  • - full and timely restitution
  • - be reasonably protected from the accused
  • - respect for dignity and privacy

In 2006, the World Society of Victimology and the International Victimology Institute at the University of Tilburg in the Netherlands brought together a small group of experts on the implementation of victim rights from across the world. This group developed a cogent draft for a United Nations Convention on Justice and Support for Victims which is available at www.intervic.org.

" I have deleted the sections of this convention that are international so that I can propose a model domestic law that Governments could adopt. This model domestic law includes verbatim the relevant paragraphs from the draft convention. Here are the highlights of this model domestic law:

Articles 1-3 defines who is a victim of crime.

Article 4 makes a commitment to the reduction of victimization

Articles 5-11 provide for:

access to justice and fair treatment for victims of crime(5),

protection of victims, witnesses and experts (6)

information (7)

assistance (8)

restorative justice (9)

restitution (10), and

compensation (11).

Articles 12-13 set out how to ensure implementation (12) and monitoring (13).¨