Victim Compensation

Presentation for the Lawyers’ Commission on

Compensation Reform in Japan

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

 Who pays it?  Who pays it?

 The State  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completely out of date!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 State’s 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
 Victim’s 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
 Profitsof 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?
 LCGE=Loss 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
 Eitherby 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

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