The Draft UN Convention on Justice and Support for Victims of Crime

1. The Draft UN Convention on Justice and Support for Victims of Crime Prof.dr. Marc Groenhuijsen July 21, 2011 Lecture to the 11th Asian Post Graduate Course on Victimology and Victim Assistance, Jakarta, Indonesia

2. Topics in this presentation • 1. Very brief overview of UN Declaration & implementation • 2. - Arguments pro & con UN Convention - Content of Draft Convention • 3. The next steps & controversial issues

3. Summary of Declaration • As prof. Sam Garkawe explained this morning, according to the Declaration, victims have the right to: • -be treated with respect and recognition • -receive information • -allow their views to be presented and considered • -proper assistance throughout the legal process • -protection of privacy and physical safety • -informal dispute resolution (including mediation) • -social assistance • -State compensation

4. Implementation of UN Declaration • 1989 GA ‘plan of action’ & Ecosoc resolution 1989/57 • 1994 Questionnaire • 1997 Manual of the use and application of the Declaration • 1997 Guide for policy makers • - general conclusion: implementation is still unsatisfactory

5. Arguments in favour of a UN 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 Declaration has been diminished

6. Arguments opposing a Convention - standstill during negotiations • risk of watered down provisions (i.e. compromise solutions)

7. First draft and follow up December 2005 UN Convention on Justice and Support for Victims of Crime and Abuse of Power - www.tilburguniversity.nl/intervict/undeclaration - www.worldsocietyofvictimology.org/index.html February 2008 Conference at TIVI - improved draft Convention (book: Raising the Global Standards for Victims)

8. Content of the Draft • Preamble and 25 articles, divided into four parts • Part 1 General considerations (art. 1-4) • Part 2 rights and duties (art. 5-11) • Part 3 implementation, monitoring & cooperation (art. 12-16) • Part 4 concluding provisions (art. 17-25)

9. 1st improvement • Special justice and support for “particularly vulnerable victims” (art. 3) Inspired by ‘differential victimology’ • age, gender, disability • type of crime • circumstances of the case • personal characteristics • Risk assessment models (PTSD/repeats/victim support)

10. 2nd improvement • Extensive discussion of crime prevention (art. 4, deleted from later drafts) • Protection from repeat victimization (14% of victims suffer from 70% of crimes; Farrell 1992)

11. 3rd improvement • Access to justice (art. 5): • Examples: • - allowing the views and concerns of victims to be presented and considered at appropriate stages -Judicial review of decision not to prosecute a case (superior to the traditional remedy of private prosecution and alternatives like administrative review withing the prosecution service)

12. 4th improvement • Restitution Declaration: - offenders should make fair restitution - consider restitution as sentencing option Draft Convention: - ensuring enforcement of any order granting awards

13. 5th improvement • Right to receive information (art. 7) - long list of items - release of the person prosecuted or sentenced - opt out procedure

14. 6th improvement • More sophisticated provisions on ‘assistance’ (art. 8) • Establish local and regional victim assistance centers • Facilitate referral of victims by the police • Distinguish between: -immediate assistance -medium term assistance -long term assistance

15. 7th improvement • Restorative justice (art. 9): • (1) State parties shall endeavor, where appropriate to establish or enhance systems of restorative justice, that seek to represent victims’ interests as a priority. States shall emphisize the need for acceptance by the offender of his or her responsibility for 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 that victims 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.

16. Restorative justice continued • The real challenge: -maximizing potential benefits while minimizing potential risks • Examples: -full policy of free consent -limits to confidentiality -avoiding insincere apologies

17. 8th improvement • Implementation (including cooperation and training) • & monitoring (including periodical review of legislation) • Committee of Justice and Support for Victims of Crime and Abuse of Power • -composition of the Committee (10 experts) • -the fact finding process (reports, requests for further information, on-site visits to assess progress)

18. The next steps • Commission meetings 2006-2011 • Twelfth Congress in 2010 (Salvador, Brazil) • Seek support from EU? • & add human rights dimension to criminal justice dimension (Vienna & Geneva) • & support initiatives for Conventions dealing with specific subgroups of victims

19. Controversial issues • 1. Definition of ‘victim’ (of ‘abuse of power’) • 2. Art. 4 on crime prevention • 3. Art. 5.2(e) to appeal a prosecutorial decision • 4. Specific provision for police behavior • 5. Separate section of definitions (e.g. reparation, restitution, restorative justice) • 6. Cross-border victimisation • 7. Power of the committee to make on-site visits • 8. Remedies in cases of violations of victims’ rights