Picking up the pieces – Are victims’ rights taken seriously

when law enforcement co-operates across borders?

Michael O’ConnellCommissioner for

Victims’ RightsSouth Australia

Crossing BordersCanberra, ACT, Australia

9 April, 2009

International Victims’ Rights Instruments

United Nations:– Declaration of Basic Principles of Justice for Victims of

Crime and Abuse of Power (1985):• Guide-book on victim assistance;• Guide-book for policy-makers.

– Convention against Transnational Organised Crime

– Protocol to Prevent, Suppress and Punish Trafficking in Persons

– Guidelines on Justice for Child Victims and Witnesses of Crime

Regional Victims’ Rights Instruments

• Commonwealth Secretariat’s:– Statement of Basic Principles of Justice for Victims of Crime

(endorsed by Senior Law Officers for the Commonwealth 2005).

• Council of Europe’s:– Convention on the Compensation of Victims of Violent Crime– Recommendation on Assistance to Crime Victims

• European Union’s:– Framework Decision on the Standing of Victims in Criminal

Proceedings– Directive on Compensation to Crime Victims

Nation / State Declarations or Charters

• Britain– Charter on Victims’ Rights (UK)

• New Zealand– Victims of Crime Act

• Australia– Charter on Victims’ Rights (Standing Committee of

Attorneys-General).

• South Australia– Declaration of Principles Governing Treatment of Victims in

the Criminal Justice System (2001)• Enshrined in the Victims of Crime Act 2001 (SA)

Collectively these instruments give victims rights to:

• Services• Information• Consultation• Participation

Victims’ Rights Realities

• These instruments (in the main) are predicated on an assumption that victims are aware of their rights. There is reason to believe that this assumption is problematic.

• Despite attempts to exercise their rights, some victims are still denied their rights.– This can be blamed to some extent on the attitude of criminal

justice practitioners, including law enforcement / police officers.

• Political borders and administrative inaction can compound victims’ loss of control and other effects of crime.

Victims’ Rights Realities

• Harmonisation of law and procedure• Mutual Assistance• Cross-border co-operation

– Positive and constructive developments such as exchange of information

• Should facilitate victims’ rights, such as their rights to information and participation.

• “Old fashion, chunky mechanisms” can impede victims exercising their rights, however.

Case Examples

Terrorism – “I buried my son three times!”

Rape – “I have to go back to get victim compensation – if I want financial assistance for

medical costs.”“They made me wait hours. They did not arrange a forensic medical examination.

They even asked me re-enact the crime.“They let the rapist return to his home country – he then resigned. Now he will never

be prosecuted.”

Road Fatality – “No-one told us we could be in court … we weren’t even given a chance to make an

impact statement.”“They gave us the transcript … but it is in (a non-English language). What do we do

with it. We lost our daughter, now we have to pay to find out what happened.”

Case Examples

Stalking – “The police said the offender lived in Australia, so I had to report it there.”

Invasion of privacy – “X has contracted HIV as a result of the offender’s behaviour. Her current

medical condition is …”

Murders – “We just want to know what’s going on … we want to be in court but they

won’t even tell us when that will be.”“The evidence is there. They say it is too expensive to prosecute.”

“My sister was murdered in your country. My family want me to bury her. I earn $A88 per month and have a family to support. Can you help?”

Justice For Victims

Strengthening Victims’ Rights

International Developments

– United Nations• Survey on implementation of the declaration

– International Criminal Court• Victims’ status

– Draft Convention on Victims’ Rights (Intervict / WSV /

TIVI)• Monitoring (Expert Panel)

Nation Developments

– Britain• Commissioner for Victims & Witnesses• Parliamentary Ombudsman

– USA

• Party to proceedings

– Japan• Co-accuser

Local Developments - Commissioner’s role (Victims of Crime Act)

• To monitor and report on public officials treatment of victims of crime.

• To assist victims in their dealings with prosecution authorities and other government agencies.

• To consult with the judiciary about court practices and procedures, and their effect on victims.

• If another Act authorises or requires the Commissioner to make submissions in any proceedings – to make such submissions (either personally or through counsel).

Example:

Monitoring Compliance

SA Police

DATA FOR ILLUSTRATION ONLY

Total Victims

Books Distributed %

Victims Referred to Agency %

Victims Referred to VCO %

LSA1 3904 74.95% 1.13% 3.25%

LSA2 3193 68.31% 1.13% 3.29%

LSA3 2914 76.56% 1.48% 6.01%

LSA4 798 68.92% 1.13% 1.38%

LSA5 1048 40.55% 2.67% 1.91%

LSA6 484 36.36% 3.31% 4.13%

LSA7 496 63.51% 1.61% 3.23%

LSA8 682 66.42% 2.93% 2.79%

LSA9 3190 75.74% 2.88% 8.62%

LSA10 2380 65.71% 1.97% 3.82%

LSA11 3875 57.88% 0.72% 3.64%

LSA12 1097 65.91% 3.28% 3.28%

LSA13 704 73.01% 1.99% 2.70%LSA14 994 77.46% 1.91% 1.31%

Example:

Enhancing Victims’ Informational Rights

Commissioner’s role:

– Victim-letter notification

• Name of accused• First court date &

court particulars• Reminder of right

to make a VIS

Examples

Remedies for breaches – South Australia

A compellable right:

– Under the Criminal Law (Forensic Procedures) Act, 2007 victims have a right to request the destruction of a forensic sample or material(see section 39)

– That Act compels the Police to provide a victim (relevant person) with information pertaining to above (see section 12)

An enforceable right:

– Under the Correctional Services Act, 1988 (SA) a public official who misuses confidential information from the Victims Register is liable for a penalty of up to $10,000 (Aust).

– Victims Register comprises information on victims who want to be kept informed about prisoners pending release or offenders completion of community service, among other things, and is maintained by Correctional Staff in a Victim Services Unit

Example

Enforcing Victims’ Rights – South Australia

Commissioner’s role:

– Will be able to require a public agency or official to consult with him/her regarding steps that may be taken by the agency/official to further the interests of victims; and

– After such consultation, may, where he/she believes that the agency or official has failed to comply with the declaration of principles, recommend that the agency or official issue a written apology to the relevant victim.

– The Commissioner is required to have regard for the wishes of the person (victim)

Concluding Observations

Cross-border Policing - Victims’ Rights Realities

• Presupposes victims know their rights.• Presupposes the Police (and others) know victims’

rights.• Presupposes willingness to act according to victims’

rights.• Presupposes a preparedness of nations to co-

operate.• Presupposes that victims’ priorities and those of the

Police and others.• Presupposes that victims’ interests are taken

seriously locally, nationally and internationally.

Cross-border Policing - Victims’ Rights Realities

• Many victims want what is promised. Many have come to expect the promise of victims’ rights. Too many find the promise is just that …

• Too many criminal justice practitioners & others are not yet ready or willing to accept that victims’ rights should be at the head of the table

Without justice for victims, can there be justice at all?

Cross-border Policing - Solutions

• Training & education – police, prosecutors, judiciary and others.

• Awareness raising – e.g. USA On-line directory of victim services & directory of victim compensation schemes

• Assistance – to exercise rights & access services.

• Facilitation – e.g. better use of technologies.• Monitoring – accountability mechanisms.• Enforcement – inquiry & remedies.