Max Planck Institute for Foreign and International Criminal Law

The idea of "compensation" served as a basis for these reflections. Discussions on this issue are controversial both in Germany and abroad. There is agreement that compensation should play a role in criminal law. However, there are divergences both within and between the different legal systems with respect to the estimated relevance of compensation (Frühauf 1988). In consequence of the intensified concentration on the victim the idea of victim protection has also experienced a certain boom. The focus on victimology has been intensified worldwide since the 1st International Victimological Symposium in Jerusalem in 1973 (cf. M. Kaiser, 1992).

The focus of the project presented here is on the position of victims in traditional criminal proceedings on the one hand and on compensation (both material and symbolic) on the other. In contrast to the USA, few empirical studies are available for the European countries so far. Comparative assessments of the situation in countries within the European legal area have not yet been completed (cf. also Kilchling; Löschnig-Gspandl, in this volume).

The present study on the subject "The victim and the criminal procedure" which includes information from Germany, France and Austria proceeds to, for the first time, integrate and take into consideration comparable, empirically derived information on differential aspects of victim protection and compensation. The research reports for the individual countries have been published only partially so far.

These studies are works dealing with the subject of compensation conducted at the Max Planck Institute for Foreign and International Criminal Law, by M. Mérigeau (Mérigeau 1993), K. Krainz (Krainz 1991) and M. Kaiser (M. Kaiser, 1992), between 1990 and 1992 for France, Austria and Germany as empirical studies which focused on specific issues on the one hand and compiled information which is comparable with regard to content for the purpose of further analyses of a number of complexes of questions on the other. The disparities both in the questions posed and in the implementation of the studies inevitably render an international comparison problematic with respect to research method and content. Nevertheless, a partial comparison of the findings derived on the implementation of compensation and the attitudes of the persons involved in the criminal procedure towards efforts at compensation might yield additional information on common features and differences as regards the relevance, goal and handling of compensation in the individual countries.

The comparison between the French and the German studies concentrates on the attitudes of jurists (judges, public prosecutors) towards victim rights and efforts at compensation, whereas the comparison between the German and the Austrian study includes results of trial observations as well as of victim interviews on victim rights and compensation.

The project is intended to answer - in a supranational context - in particular the following questions by way of in-depth analyses of the three available studies and data sets:

• What information is available on the type, extent and application of victim rights and on regulations governing compensation in the particular countries?
• What information exists on the attitudes of different parties involved in the criminal procedure (victims, judges, public prosecutors) towards the goals of the criminal procedure, the situation of the victim and regulations governing compensation?

In order to answer these questions the individual data sets are evaluated with respect to comparable issues and the derived findings are presented and interpreted in a supranational context.

Comparable issues of the studies conducted in France, Austria and Germany

Table 1: Overview of data collections in France, Austria and Germany: comparable issues

	France	Germany	Austria
1. Interviews with judges/public prosecutors	x	x	-
2. Interviews with lawyers	-	x	-
3. Interviews with probation officers	x	-	-
4. Interviews with victims	-	x	x
5. Interviews with defendants	-	-	x
6. Trial observations	-	x	x
7. Record analysis	-	-	x

An evaluation of the goals of the criminal procedure reveals partial differences in the attitudes of the French and German jurists. In both countries mainly traditional aspects ("fight against crime", "restoration of legal peace") were regarded as the most prominent goals. The victim's and the offender's position are weighted differently. Unlike the French jurists who proved to be more victim-oriented, the German lawyers questioned mainly exhibited an offender-oriented attitude. The study also reveals differences and deficiencies with respect to victim rights. The number of respondents who considered victim rights satisfactory was much higher in Germany than in France. Whereas in France the task of informing the victims about their rights is mainly the duty of government agencies, particularly the victim's (lawyer's) personal initiative is called for in Germany according to the German respondents. Particularly the German study gives the impression that possible active participation of the victim is even considered problematic. In contrast to France integration of the victim into the criminal procedure in Germany is taking place more slowly.

Among the questioned French and German jurists, the acceptance of efforts towards compensation, of their development and improvement is high throughout. The special- or general-preventive goals of compensation have gained recognition. The French judicial authorities proved to be more victim-oriented. Whereas expectations of the French jurists are mainly determined by the material aspect of compensation, the German respondents also take into consideration symbolic compensation including the possibility of reconciliation between the victim and the offender. In this connection the victim's interest in compensation plays a prominent role.

French criminal policy during the early 90s was, in contrast to Germany, characterized by considerable endeavors to promote a "coexistence" of judicial, political and social approaches to crime.

The order and implementation of compensation, however, is neither solely dependent on attitude aspects nor presumably controlled by criminal policy standards alone. Responsible parties involved in the criminal procedure with an open attitude towards compensation are as much confronted with everyday practical difficulties as those with a more skeptical attitude. In both countries poverty of the offender, aspects of civil law which are to be taken into consideration in the assessment of the factual situation (e.g. contributory negligence on the part of the victim) and frequently uncertainties concerning the extent of damage and uncertain or still outstanding consequential damage are considered relevant aspects; supervision of compensation as well as factors connected with an extension of the procedure in the broadest sense are also relevant, though more secondary.

Thus, the difficulties which constitute obstacles to decisions in favour of duties to compensate are apparently of a more concrete and case-specific nature. The - unfortunately rather meagre - information provided by the French probation officers and in part also by the criminal judges throws a critical light upon the routine efforts towards compensation beyond theory and positive endeavors and also shows that compensation arrangements sometimes represent - not only for the offender, but also for the victim - an ordeal involving massive interference (cf. Kilchling 1995) and occasionally possibly even a kind of additional sacrifice for the injured person (cf. Jung 1992).

Though a general inspection in particular of the results of the German part of the study yields a picture which is differentiated in many respects, the reaction of "compensation" - with regard to the differential objections put forward - obviously meets with approval even on the part of the rather skeptical jurists. It is to be assumed that there exists in both countries a so far unutilized potential of willingness to settle conflicts in this constructive manner whose concrete implementation, however, no doubt constitutes the more difficult problem. In Germany the scope of compensation was expanded by the revision of § 46a German Penal Code (introduced by the Crime Control Act of 1994). In 1993, France attempted to reinforce the possibilities of (extrajudicial) victim compensation by supplementing the laws in force.

A comparison between the French and German jurists' attitudes reveals that they both judge the assumption that a strengthening of the victim's position will hamper both the effectiveness of criminal prosecution and the enforcement of the goals of the criminal procedure as unfounded and that, in their opinion, endeavors towards compensation might stimulate constructive ways - both for the victim and the offender - to cope with the crime. This necessitates the creation and reconsideration of basic conditions; additionally, all efforts ought to take into account the limits of what is "feasible", for - particularly with regard to the victim's perspective - compensation is unable to be expanded infinitely (cf. Weigend 1994; Albrecht 1990) and ought to be determined by the victim's actual needs. The victims should on no account be patronized or awarded compensation against their will (cf. Kube 1986).

According to the Austrian and the German studies victim protection is mainly realized in the passive sector. According to the interpretation of victim protection its prime goal is to ward off negative reactions of third parties to the victim rather than to support the victim in the protection of his/her active rights as well as a stronger integration of the victim into the procedure. Thus victim protection as a rule serves to make the victim's concrete situation in the criminal procedure more bearable, provided this is necessary at all. Protective regulations are applied rather seldom both in the Austrian and in the German court routine. The results of both studies give a positive picture of the court routine and of the authorities concerned and indicate a generally satisfactory course of procedure as far as the position of the victim is concerned. This assessment presumably also applies to France. Most of the strain the injured individual suffers is caused by the procedure itself and by encounters with the accused.

Even though the Austrian victims exhibited a slightly more comprehensive knowledge of the existence of victim rights the described results confirm the assumption that information of crime victims is satisfactory in neither of the two countries. Nor is it intended by the jurists involved. There is need for a better organization and integration of information of injured persons concerning their rights into the court routine. The victim's lawyer might take a special role in this connection which, however, would entail financial consequences for the victim. The Austrian study showed that the judge largely assumed the task of informing the victim. An expansion of such a firm integration of information concerning victim rights into the course of the trial would guarantee the information of each injured person and would thus no longer depend on the individual engagedness of the parties involved or on the victim's personal initiative.

In the criminal procedures examined at the time of the study in 1989/90, compensation, whether material or symbolic, proved to be difficult to realize and little integrated into the court routine in spite of the victim's desire and a certain willingness on the part of the offender for compensation. The situation in both countries (as far as adults are concerned) has remained much the same since then. The juvenile sector in Austria constitutes the only exception (Jesionek 1993; Zwinger 1993; Hammerschick et al. 1994). On the whole, one can say that only very few victims exhibit an interest in purely penal punishment of the offender and attach great importance to the idea of compensation in its differential forms.

In spite of the possibly overly optimistic expectations placed in compensation and the partly massive problems its implementation entails, the results of the French study indicate a higher degree of acceptance and a stronger integration of the idea of compensation into the court routine. In France, above all, efforts towards compensation appear to move within a more transparent and more clearly defined frame.

On the whole, particularly improved information of the injured party, of the accused and also of the jurists involved in the proceedings might serve to optimize the situation. However, particularly financial problems and the frequent lack of acceptance exhibited by the judicial authorities constitute further obstacles hampering the realization of efforts towards compensation and of the idea of victim protection.