Vic$ms’ rights and vic$ms’ assistance in criminal cases State compensa,on schemes and the right to redress Sarah Fulton, REDRESS Key rights of vic$ms of crime •  Recogni$on of status whether or not perpetrator iden$fied •  Immediate assistance following a crime •  Right to a remedy, including criminal proceedings where sufficient evidence to prosecute – 
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Access to informa$on about rights Right to be informed of and par$cipate in criminal proceedings Provision of assistance during proceedings Right to be protected from reprisals Treat with dignity, respect for privacy and no discrimina$on •  Right to redress/res$tu$on/repara$on Rights of vic$ms of crime to jus$ce and redress Vic$ms should be treated with compassion and respect for their dignity. They are en$tled to access to the mechanisms of jus$ce and to prompt redress, as provided for by na$onal legisla$on, for the harm that they have suffered. Declara'on of Basic Principles of Jus'ce for Vic'ms of Crime and Abuse of Power (1985) Right to an effec$ve remedy under interna$onal human rights law ICCPR Ar(cle 2(3) requires individuals have accessible and effec$ve remedies to vindicate their rights. HRCtee General Comment No. 31(par. 8): State must take appropriate measures to prevent, punish, inves(gate and redress the harm caused by acts by private persons or en$$es in rela$on to a number of key rights. See also CAT General Comment No. 2 (par. 18), and generally CAT General Comment No. 3. THREE CASES Aspects of the right to redress •  Effec$ve procedural remedies, including criminal proceedings, and ensuring equal access to them (the how) -­‐ should be prompt, fair, inexpensive and accessible •  Provision of repara$on that is adequate, appropriate, propor$onate to the gravity of the crime and the physical and mental harm suffered (the what) •  Redress as a process REPARATION FOR HR VIOLATIONS RESTITUTION FOR VICTIMS OF CRIME • res$tu$on • compensa$on for actual harm suffered • rehabilita$on • sa$sfac$on • guarantees of non-­‐repe$$on Return of property or payment for the harm or loss suffered, reimbursement of expenses incurred as a result of the vic$miza$on, the provision of services and the restora$on of rights Basic Principles and Guidelines on the Right to a Remedy and Repara,on; HRCtee General Comment 31, para. 16; CAT General Comment 3; CEDAW General Recommenda,on 28. Restora$ve jus$ce: apologies, acceptance of responsibility State should put in place measures to stop it happening again Basic Principles of Jus,ce for Vic,ms of Crime and Abuse of Power Obliga$ons on the State (i)  Where there is state responsibility for the crime (ii)  Where the state is not implicated in the commission of the crime Where the State is responsible for the crime •  Must provide equal access to effec$ve procedural remedies: –  Inves$ga$on and prosecu$on –  To access repara$on •  Must provide prompt, adequate and comprehensive repara$on -­‐  Including res$tu$on, compensa$on, rehabilita$on, sa$sfac$on and guarantees of non-­‐repe$$on -­‐  Compensa$on should reflect the actual damage suffered – should not be subject to caps See CAT General Comment 3 (torture); HRCtee General Comment 31 (ICCPR rights); Basic Principles and Guidelines on Right to Remedy and Repara,on (2005) Where the State is not responsible for the crime •  Must provide equal access to effec$ve procedural remedies: –  inves$ga$on and prosecu$on –  to access repara$on/res$tu$on from the person responsible •  Where offender cannot provide res$tu$on, States should endeavor to provide compensa$on, especially to vic$ms who have sustained significant bodily or psychological injury or impairment and to their families (State compensa$on schemes) See Basic Principles of Jus,ce for Vic,ms of Crime and Abuse of Power; HRCtee General Comment 31; CAT General Comment 3 Ways of delivering redress JUDICIAL General: -­‐  Adhesion to criminal proceedings / sentencing orders -­‐  Civil claims -­‐  Cons$tu$onal and public law remedies (where state responsible for crime) Specific procedures: -­‐  eg. legisla$on introducing procedure for hearing torture compensa$on claims (Nepal) QUASI-­‐JUDICIAL, ADMINISTRATIVE -­‐  General personal injury or crime compensa$on schemes or schemes limited to specific crimes (eg. Philippines torture compensa$on scheme) -­‐  NHRI, Ombudsman awards (where State responsible for crime) OTHER -­‐  Restora$ve jus$ce processes -­‐  Customary law processes -­‐  Transi$onal jus$ce processes For certain crimes there must always be a judicial remedy HRCtee General Comment 31, para. 18 Adhesion proceedings or compensa$on orders in criminal trials •  Adhesion proceedings common in civil law systems (par,e civile), and increasingly payment of compensa$on ordered in common law countries Benefits: •  vic$m doesn’t have to gather the evidence •  $ed to responsibility and accountability Problems: •  remedies may be limited to monetary compensa$on, though may also involve restora$ve jus$ce •  relies on criminal convic$on of perpetrator – high standard of proof and requires state ac$on •  lack of awareness of rights •  Perpetrator may not be able to pay compensa$on Uganda: Torture Act gran$ng Court power to make award 6. Compensa(on, rehabilita(on or res(tu(on to be made by court in certain cases (1) The Court may, in addi$on to any other penalty under this Act, order for compensa$on on the following; – (a) res$tu$on of the vic$m, his or her family or dependents to the greatest extent possible … … (b) Compensa$on for any economically assessable damage resul$ng from torture such as-­‐ … (c) Rehabilita$on including; (i) medical, psychological care; or (ii) psycho-­‐social services to the vic$m in case of trauma Civil claims Problems: •  vic$m has to gather all the evidence and difficult to do so •  long and expensive process, with uncertain outcome •  perpetrator may not have assets to pay compensa$on ordered •  statutes of limita$on, immuni$es, state secrets •  proceedings oden suspended pending outcome of criminal prosecu$on and/or require iden$ty of perpetrator •  courts may be limited in forms of repara$on they may (or are willing to) provide – eg. compensa$on or declaratory •  jurisprudence oden inconsistent •  Judgment requires enforcement •  problems with jus$ce system, eg. corrup$on, delays Advantages: •  Results in public and authorita$ve finding of responsibility – may lead to sense of vindica$on for the survivor Customary law Advantages -­‐  Usually accessible -­‐  More familiar -­‐  Quicker, cheaper Disadvantages -­‐  Can reflect entrenched power structures/
discrimina$on State compensa$on schemes Aim: to support survivors, to make administra$ve remedies an agrac$ve alterna$ve Importance of State compensa$on schemes •  usually simpler procedures – does not take same toll on survivors, both financial and oden emo$onal •  may be easier to access •  usually quicker •  especially important where perpetrator does not have resources to pay res$tu$on/
repara$on or cannot be iden$fied Limita$ons of State Compensa$on Schemes •  divorced from responsibility/accountability •  crimes commiged by state actors may be considered together with other crimes – does not acknowledge state responsibility •  oden has low cap on amount of money payable •  oden has short limita$on period •  may be limited to provision of money •  awarding body may not be independent Making it work for survivors •  Ensure effec$ve and equal access to judicial remedies –  criminal inves$ga$ons and prosecu$ons, with vic$m’s par$cipa$on –  effec$vely func$oning judicial mechanisms for op$on to seek full repara$on/res$tu$on from perpetrator •  Administra$ve and alterna$ve mechanisms, including state compensa$on schemes, to fill gaps and provide support to vic$ms Ensuring effec$ve access to judicial remedies Trained police, prosecutors, judges Compassionate treatment Protec$on of privacy Ensure safety of vic$ms, their families and witnesses •  Posi$ve steps to overcome obstacles which vic$ms encounter in accessing due to eg. culture, race, language, resources, educa$on, age, ci$zenship, loca$on • 
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Ensuring adequate legal framework for judicial remedy •  Ensuring criminalisa$on of crimes •  Reviewing statutes of limita$on •  Removing immuni$es for certain categories of individual (eg. officials) •  Legisla$ng for procedural rights (e.g. informa$on on rights and proceedings, par$cipa$on, avoiding retrauma$sa$on, protec$on) •  Recognising right to repara$on and allowing for full range of repara$on orders to be made Recommenda$on for State compensa$on schemes •  flow directly from complaint and/or inves$ga$on, but can also be accessed directly •  recognise vic$m status in line with Basic Principles •  deciding body independent and can resolve magers promptly •  not subject to short limita$on periods, and have discre$on to extend •  aim to provide compensa$on for damage actually suffered – where State is responsible should allow for adequate, appropriate and comprehensive repara$on (without arbitrary caps) •  leave open ability to apply to court through normal procedures for full repara$on •  require referral for inves$ga$on and prosecu$on for certain crimes, but not reliant on iden$fica$on or convic$on of perpetrator