Victim-Offender Mediation with Youth Offenders in Europe: An Overview and Comparison of 15 Countries 140203766X, 9781402037665

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VICTIM-OFFENDER MEDIATION WITH YOUTH OFFENDERS IN EUROPE

Victim-Offender Mediation with Youth Offenders in Europe An Overview and Comparison of 15 Countries

Edited by

ANNA MESTITZ Research Institute on Judicial Systems of the National Research Council (IRSIG-CNR), Bologna, Italy and

SIMONA GHETTI Research Institute on Judicial Systems of the National Research Council (IRSIG-CNR), Bologna, Italy

A C.I.P. Catalogue record for this book is available from the Library of Congress.

ISBN-10 ISBN-13 ISBN-10 ISBN-13

1-4020-3766-X (HB) 978-1-4020-3766-5 (HB) 1-4020-3879-8 ( e-book) 978-1-4020-3879-2 (e-book)

Published by Springer, P.O. Box 17, 3300 AA Dordrecht, The Netherlands. www.springeronline.com

Printed on acid-free paper

All Rights Reserved © 2005 Springer No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. Printed in the Netherlands.

ACKNOWLEDGEMENTS This book is the result of a common effort, so first of all we wish to acknowledge all the contributors who participated in writing the chapters included in this volume. Without their commitment, this book would not have been possible. The chapters were originally presented as national reports to the final seminar of the research project Victim-offender mediation: organization and practice in the juvenile justice systems, co-funded by the Italian National Research Council (CNR) and the European Commission through the Grotius II Criminal Programme 2002-04 (JAI/2002/GRP/029). The project was coordinated by the Research Institute on Judicial Systems of the CNR (IRSIG-CNR, Bologna, Italy) and was conducted in partnership with the Research Group on Juvenile Criminology (OGJC) of the Catholic University of Leuven (Belgium) and the Institut ffĦr Rechts und Kriminalsoziologie (IRKS, Vienna, Austria). We acknowledge our colleagues from these institutions, Christa Pelikan and Inge Vanfraechem, for their collaboration in leading the project. Funding support for the publication of this book was generously provided by the IRSIG-CNR. We wish to thank its founding director, Prof. Giuseppe Di Federico, not only for the financial support to this enterprise but also for encouraging our work. Finally, we express our gratitude to Domenico Piscitelli (Centre for Judicial Studies, CESROG, University of Bologna) for his competent technical support in preparing this book.

Anna Mestitz

Simona Ghetti

TABLE OF CONTENTS Acknowledgements ……………………………………………….… Contributors …………………………………………….………...

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Introduction 1. A comparative perspective on Victim-Offender Mediation with youth offenders throughout Europe Anna Mestitz …....……………………………………………………

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Part I British isles 2. Victim-Offender Mediation in England and Wales David Miers and Michael Semenchuk ………………………………… 23 3. Victim-Offender Mediation with juvenile offenders in Ireland Kieran O’Dwyerr ..…………………………………………………….. 47 Part II Northern countries 4. Victim-Offender Mediation in Sweden Lottie Wahlin …………………….…………………………………… 77 5. Victim-Offender Mediation with juvenile offenders in Norway Siri Kemény …………………………………………………………… 101 6. Victim-Offender Mediation with juvenile offenders in Finland Ossi Eskelinen and Juhani Iivari ........………………………………

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7. Victim-Offender Mediation with juveniles in Poland Beata Czarnecka-Dzialuk and Dobrochna Wójcik ...………………… 137

Table of Contents

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Part III Continental countries 8. Victim-Offender Mediation with juveniles in Austria Veronika Hofinger and Christa Pelikan ……………………………….157 9. Victim-Offender Mediation for juveniles in Belgium Anne Lemonne and Inge Vanfraechem ………………………………... 181 10. Victim-Offender Mediation with juveniles in Luxembourg Paul Schroeder ………………………………………………………. 211 11. Victim-Offender Mediation with juvenile offenders in Germany Michael Kilchling……………………………………………………. 229 12. Chance of Victim-Offender Mediation in Hungary ………………… …. 259 Maria Herczog 13. Victim-Offender Mediation and Conferencing with juvenile offenders in The Netherlands ……………………………………….. 275 Ytje Minke Hokwerda and Ido Weijers Part IV Southern “Latin” countries 14. Mediation and reparation for young offenders in France: an overview Philip Milburn ……………………………………………………… 301 15. Victim-Offender Mediation and youth offenders: the Italian experience Anna Mestitz and Simona Ghetti ……………………………………. 321 16. Juvenile penal mediation in Spain: the experience in Catalonia Jaume Martín Barberan …………………………………………… 347 Conclusion 17. Juvenile offenders and the legal system: what we have learned from Victim-Offender Mediation Simona Ghetti ………………………………………………………. 371

CONTRIBUTORS K holds a Ph.D. in Law, and is associate BEATA CZARNECKA-DZIALUK professor in the Institute of Law Studies of the Polish Academy of Sciences and in the criminal law unit in the Institute of Justicee f the Ministry of Justice. She has been interested in Victim-Offender Mediation since the beginning of the 90’s and was a founding member of the “Initiative group for introducing mediation” in Poland. She is author of several publications on juvenile justice, among them a book on juveniles appearing before family court (procedural aspects). She conducted a research project on evaluation of the experimental programme of penal mediation in juvenile cases (results were published in the book Mediacja w sprawach nieletnich w œwietle teorii i badaĔ).

OSSI ESKELINEN received a Ph.D. in Social Policy at the University of Tampere and is an assistant professor at the University of Tampere, Department of Pori. He also runs a small research and consulting enterprise. He has specialized in evaluation and has done evaluations on the unemployed, on people with criminal background and their rehabilitation, on the rehabilitation of intoxicant abusers and on the mediation of juvenile offenders under the age of 15. His research on the mediation of juvenile offenders was published (in Finnish) in January 2005. SIMONA GHETTI received a Ph.D. in Developmental Psychology at the University of California, Davis. She is a researcher at the Research Institute on Judicial System of the Italian National Research Council (IRSIG-CNR) in Bologna. She has conducted numerous studies concerning children’s and adolescents’ involvement in the legal system and has examined children’s abilities as eyewitnesses and techniques for forensic interviewing of child victims. She has also investigated measures with which the legal system deals with youth crime, including probation and restorative practices. Her work is published in national and international books and research articles. MARIA HERCZOG holds a Ph.D. in Sociology and an MA in Economics, and is senior researcher in the National Institute for Criminology and in the National Institute for Family and Social Policy. Her main area of research is

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child protection, child abuse and neglect. Since 1992 she has been the Chief editor of the only Hungarian professional journal “Family, Child, Youth”. She had been working with international organisations as a scientific expert and consultant. Author of several books and chapters, among them “Child Protection Handbook” on the implementation of the Hungarian Children Act was published in 2001. Her recent publications as co-author and coeditor are: About Sexual Abuse of Children (Csagyi Books, Budapest 2002), Reconciliation, Restorativity, Handbook on Restorative Justice for Children and Young Persons (Csagyi Books, 2003), Sexual Abuse in Europe (Council of Europe, 2003). R has been studying Sociology in Vienna since VERONIKA HOFINGER 2001 and has worked on several projects at the Institute for the Sociology of Law and Criminology (IRKS) in Vienna.

YTJE MINKE HOKWERDA studied Educational Sciences at the University of Utrecht. She worked as a researcher in the area of restorative justice in criminal law cases with juvenile offenders at the Willem Pompe Institute for Criminal Sciences at the Faculty of Law of the University of Utrecht. She has published Herstelrecht in jeugdstrafzaken (Restorative Justice for Young Offenders) (Den Haag: Boom Juridische uitgevers). JUHANI IIVARI is a researcher and practitioner in the area of VictimOffender Mediation. He is currently a research director at the National Research and Development Centre for Welfare and Health (STAKES). He served as a prison priest in the Helsinki county prison, where he and two friends launched the first Victim-Offender Mediation pilot project in 1983. He worked with the project for five years. Since 1996, he has been teaching at the University of Helsinki in Social Policy and Social Work. In addition, he is a member of the Board of the European Forum for Victim-Offender Mediation and Restorative Justice and a member of the Management Committee of COST A 21 programme. He has authored and co-authored national and international publications on victim-offender mediation experiences in Finland. SIRI KEMÉNY has been working within the field of Restorative Justice since 1990. Until 1996 she was coordinator of the mediation service in Oslo, and in 1996/1997 she did an empirical study on mediation in cases of violence. From 1997-2003 she worked in the Ministry of justice where her field of responsibility was Restorative Justice. Since 1 January 2004 she has worked as senior advisor at the recently established “National mediation service”. She holds a M.D. (Candidatus Politicus in the Norwegian system)

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from the University of Oslo, 1983. In 2004 she was elected chair of the European Forum for Victim-Offender Mediation and Restorative Justice.

MICHAEL KILCHLING studied Law and Criminology at the University of Freiburg where he was also awarded his degree of doctor juris in 1995. At present he is working as a senior researcher and co-ordinator of administrative affairs of the Department of Criminology at the Max Planck Institute for Foreign and International Criminal Law in Freiburg i.Br., Germany. His scientific work covers many different topics, including victimology, restorative justice and victim-offender mediation. He has published several books and articles, both in German and English. ANNE LEMONNE is researcher at the Institut National de Criminalistique et de Criminologie in Belgium. For many years she was also researcher in Criminology at the Université Libre de Bruxelles (Belgium) and at the University of Copenhagen (Denmark). Her studies are currently mainly oriented towards restorative justice and victim policy. JAUME MARTÍN BARBERAN is a social educator on community sanctions in the Department of justice of the Autonomous Government of Catalonia. He is responsible for international relations in the Secretariat of penitentiary services, rehabilitation and juvenile justice, board member of the European Conference of Probation and also board member of the European Forum for Victim-Offender Mediation and Restorative Justice. He is the author of various studies and researches on victim-offender mediation and the execution of sanctions in the community and a scriptwriter for audiovisual coverage of these topics. ANNA MESTITZ is research director at the Research Institute on Judicial Systems of the Italian National Research Council (IRSIG-CNR) in Bologna. A social psychologist engaged in research on judicial administration, especially on juvenile criminal justice and victim-offender mediation, she has served on national committees on judicial reforms. In 2002-04 she was the promoter and coordinator of the Grotius project “Victim-Offender Mediation: organization and practice in the juvenile justice systems”, funded by the European Union (EU). She is the Italian representative in the Management Committee of EU COST Action A21 “Restorative justice developments in Europe”. She has authored many articles and books on juvenile criminal justice. Most recently she edited the book Mediazione penale: chi, dove, come e quando (Victim-offender mediation: who, where, how and when) (Roma: Carocci 2004).

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DAVID MIERS is Professor of Law at Cardiff Law School. He has a longstanding research interest in the criminal justice system’s responses to personal victimisation, in particular arrangements for the compensation by the state of victims of crime. In 2001 he completed for the Home Office an exploratory evaluation of Restorative Justice schemes in England and a comparative analysis of restorative justice provision in Europe. He is a UK representative on the Management Committee of EU COST Action A21 “Restorative justice developments in Europe” and was the national reporter for England and Wales for a Grotius project on mediation in youth justice conducted in 2003. He is co-editor of the International Review of Victimology. PHILIP MILBURN is Professor of Sociology at the University of Versailles-St Quentin, France and member of the Printemps research centre. His work is centred on the study of the French criminal justice system and professions. His most recent research programmes have focused on the juvenile justice system and on restorative provisions and schemes. R is Head of research in the Garda Síochána, Ireland’s KIERAN O’DWYER police service. He took up the post in 1994. His research interests include policing, juvenile crime and restorative justice. He is currently completing a Ph.D. degree with the Institute of Criminology, University College Dublin researching the Garda restorative justice programme for juvenile offenders.

CHRISTA PELIKAN is a researcher at the Institute for the Sociology of Law and Criminology (IRKS) in Vienna. She has been working in the field of criminal law, especially juvenile justice and in the field of family law. Since 1985, she has been doing accompanying research on the large Austrian pilot project on “Victim-offender-mediation in juvenile justice” and later on a pilot project “Victim-offender-mediation in general criminal law”. She chaired the Committee of experts on mediation in penal matters within the European Committee on Crime Problems (CDPC) and was a member of the Criminological Scientific Council to the CDPC of the Council of Europe from 1999-2003. In 2002-2004 she was a partner in the Grotius project “Victim-Offender Mediation: organization and practice in the juvenile justice systems”. She is also a member of the board of the European Forum for Victim-Offender Mediation and Restorative Justice.

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PAUL SCHROEDER R studied Law in Aix-en-Provence (F) and Leiden (NL) where he obtained his Master degree in 1998. From 1999 to 2001, he worked as a barrister in Luxembourg. Since 2001 he has been employed as a lawyer and a mediator at the Mediation Centre in Luxembourg. In 2004, he obtained the European Master in Mediation at Institut Universitaire Kurt Bösch in Sion (CH). He is also a member of the editorial board of the Newsletter of the European Forum for Victim-Offender Mediation and Restorative Justice. MIKE SEMENCHUK K graduated in Psychology from De Montfort University (UK). Prior to that he had a career in industry. He is now a research fellow in the Youth Affairs Unit at De Montfort, and has recently submitted his Ph.D. thesis on the subject of firesetting by young males. He has published a number of articles on arson, and also on restorative justice. In addition he has carried out research in the area of youth offending and victimology within the Community & Criminal Justice Division of De Montfort and also research on the re-integration of both mentally disordered offenders and non-mentally disordered offenders back into society on either discharge from hospital or release from prison. INGE VANFRAECHEM is a researcher at the Research Group on Juvenile Criminology (OGJC), at the Katholieke Universiteit Leuven (Belgium). She is the chair of the Research Committee of the European Forum for VictimOffender Mediation and Restorative Justice. She participates in the COSTAction A 21 “Restorative justice in Europe” where she is a member of the working group with regard to theoretical issues, and was a partner in the Grotius project “Victim-Offender Mediation: organization and practice in the juvenile justice systems” (2002-2004). She has published articles on conferencing for juvenile delinquents, and is preparing a Ph.D. at the Katholic University Leuven on the related topic. LOTTIE WAHLIN holds a Ph.D. in Sociology and is a researcher at the National Council of Crime Prevention in Sweden. Among other things she has been doing research on rationality in criminal behaviour, the correctional treatment and community service as a penalty. Since 2003 she has been working with a governmental commission to implement victim-offender mediation in Sweden and has a special responsibility for evaluation of quality and documentation of the mediation projects. She is currently writing a book about Victim-Offender Mediation and the Swedish experiences in mediation.

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IDO WEIJERS was educated at the University of Amsterdam, and has taught in the Department of Education at the University of Utrecht since 1996. He is Professor of Juvenile Justice at the Faculty of Law at the same University. He has published several articles and books on juvenile justice, restorative justice, punishment and education. He has edited with A. Duff Punishing Juveniles: Principle and Critique (Oxford: Hart, 2001) and is currently editing a volume (in Dutch) with key texts in the international debate on restorative justice. DOBROCHNA WÓJCIK K is Psychologist and Jurist, Criminology Professor, head of the Department of Criminology in the Institute of Law Studies of the Polish Academy of Sciences, head of the criminal law unit in the Institute of justice of the Ministry of justice, former president of the Polish Society of Criminology, and Council of Europe expert on early prevention. She is author of books on social maladjustment of youth and juveniles’ responsibility. She conducted a research project on evaluation of the experimental programme of penal mediation in juvenile cases, the results of which were published in the book Mediacja w sprawach nieletnich w œwietle teorii i badaĔ.

INTRODUCTION

Chapter 1 A COMPARATIVE PERSPECTIVE ON VICTIM-OFFENDER MEDIATION WITH YOUTH OFFENDERS THROUGHOUT- EUROPE -Anna

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PREMISE

Victim-Offender Mediation (VOM) is a very ancient strategy adopted in tribal or village societies to solve conflicts, repair damages and re-establish social peace. Technically, in the “mediating continuum” the mediator is an ancestor of the judge, as noted many years ago by Martin Shapiro: “In examining triadic conflict resolution as a universal phenomenon, we discover that the judge of European or Anglo-American courts, determining that the legal right lies with one and against the other of the parties, is not an appropriate central type against which deviance can be conveniently measured. Instead he lies at one end of a continuum. The continuum runs: go-between, mediator, arbitrator, judge. (...) The go-between is encountered in many forms. In tribal or village societies he may be any person, fortuitously present and not connected with either of the households, villages or clans in a dispute, who shuttles back and forth between them as a vehicle of negotiation (...) The mediator is somewhat more open in his participation in the triad. He can operate only with the consent of both parties. He may not impose solutions. But he is employed both as a buffer between the parties and as an inventor of mediate solutions. By dealing with successive proposals and counterproposals, he may actively and openly assist in constructing a solution meeting the interest of both parties” (Shapiro, 1981: 3).

3 A. Mestitz and S. Ghetti (eds.), Victim-Offender Mediation with Youth Offenders in Europe, 3-20. © 2005 Springer. Printed in the Netherlands.

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This is the essence and the scope of VOM and other Restorative Justice strategies currently adopted in Europe, the United States, New Zealand, Australia, Canada and in many other countries. From the first experiences in the 1970s in the United States1 and Canada2, the movement for Restorative Justice has gained more and more attention among citizens, legal professionals and scholars - mainly through classic articles and books such as those by Neil Christie (1977), John Braithwaite (1989), Howard Zehr (1990) - and across a variety of continents and cultures3. A variety of restorative practices quickly emerged in Western democracies worldwide emphasizing the increase of citizen participation in the administration of justice (Archibald, 2001). In fact Restorative Justice includes different strategies by which the victim, the offender and/or other individuals or community members affected by a criminal act actively participate together in the resolution of matters arising from the crime, with the help of a fair and impartial third party. Regardless of the label used family group conferencing, or simply conferencing (Van Ness, Morris and Maxwell , 2001), community conferencing, community justice forums and VOM (Morris and Maxwell, 2001a) - these methods bring together victim, offender and significant other community players to give restorative responses to the criminal behaviour. Their aim is the restoration of peaceful and balanced social relations and the reparation of criminal harm, rooted in values of equality, mutual respect and concern. In practice these methods differ. In fact, VOM meetings involve crime victims and offenders and one (or more) mediator, while in family group conferences, conferencing etc. their families, supporters and representatives of the community are also involved under the guidance of one (or more) facilitator. In the 80s New Zealand and Australia became the first “laboratories of experimentation in one form of restorative justice: conferencing” (Daly, 2001: 59)4, whereas some European countries began the experimentation of VOM. Namely Norway, Finland and Austria began the first experiments. In England, too, VOM and reparation programmes were adopted “by juvenile liaison bureaux and police-led cautioning panels” in “the absence of any statutory authorisation for restorative justice programmes” (Dignan and

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“The Institute for Mediation and Conflict Resolution (IMCR) in Manhattan established the standard for criminal mediation practice in 1971, well before any theoretical work on restorative justice” (McCold, 2001: 41). 2 In 1974 in Kitchener (Ontario) a probation officer proposed the first victim-offender reconciliation to a youth offender. 3 For an exhaustive comparative overview see Morris and Maxwell (2001a). For a guide to practice and research see Umbreit (2001). For an overview in 8 European nations see European Forum for Victim-Offender Mediation and Restorative Justice (2000). 4 For the development of conferencing in Australia and New Zealand see Daly (2001).

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Marsh, 2001: 86). Sooner or later, these examples were followed by almost all European Union (EU) member countries. Recent studies on restorative practices have demonstrated a capacity for reductions in both recidivism rates (Morris and Maxwell, 2001b) and the costs of criminal justice. Generally restorative justice programmes are carefully structured under the criminal codes and/or youth criminal justice acts in order to protect the interests of participants and promote the ends of justice. In practice these programmes are carried out as out-of-court, nearcourt or in-court procedures. At the very beginning of the second millenium VOM has grown to “over 1,300 programmes in more than twenty nations” (Umbreit, Coates and Vos, 2001: 121). Today in Europe this “unique, innovative and ancient form of handling and solving conflicts (...) seems to be stronger than ever” (Weitekamp, 2000: 101). In fact in European countries VOM is the main Restorative Justice strategy adopted with adults and youth offenders (Miers and Willemsens, 2004) since conferencing, circles, and family group conferences are for the most part disregarded: “Almost everywhere in Europe victim-offender mediation is seen as the best actual practice (...) Often no distinction is made: victim-offender mediation is restorative justice and restorative justice remains limited to victim-offender mediation. Although we know about family group or community conferencing and sentencing circles, these two approaches do not find any significant implementation on the European scene till these days” (Peters, 2000: 11). As a matter of fact, so far only in England and Wales, Ireland, Belgium, and The Netherlands are conferencing and family group conferences currently run. Notably, only in The Netherlands are these methods clearly preferred to VOM. Presently in the EU, VOM is conceived as a tool to empower the victim, to diminish the state’s role and empower that of civil society, to make the citizen participate in the administration of justice and to reduce costs and workload in the criminal justice systems5. Even if mediation models and schemes are often different and administered by a variety of institutions, agencies and groups, various common features emerge at different levels. In this chapter, I will try to show some of them by sketching a comparative perspective of the main features of VOM in the 15 countries examined in detail in the chapters of this book. Before entering into detail it would be useful to explain briefly the background and the context in which this book was conceived. 5

Cfr. Council of Europe (2000: 11-12). For the emphasis on Canadian citizen participation in the administration of justice see Archibald (2001).

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BACKGROUND AND CONTEXT

The starting point of this book was the international research project Victim-Offender Mediation: organization and practice in the juvenile justice systems6, which aimed to provide an overview of the state of the art regarding VOM with young offenders in the EU member nations. The specific scope was to collect comparative information on the basic conditions needed for adopting VOM with youth offenders: norms and procedures, organization and structure of the services, local/national contexts, financial and human resources (Mestitz, Pelikan and Vanfraechem, 2004). The project was suggested by the fact that EU member states are not only asked by the Council of Europe to promote VOM (Recommendation No. R(99)19), but they are specifically requested by the EU Council to adapt their legislation to this aim by March 2006 (Framework Decision of March 15, 2001, arts. 10, 17). As a consequence the information provided by the project was expected to be useful for both participant and non participant countries. A network of participants from 15 European nations (Austria, Belgium, England and Wales, Finland, France, Germany, Hungary, Ireland, Italy, Luxembourg, The Netherlands, Norway, Poland, Spain, Sweden) was established and each participant country was asked to contribute with a national report. The contributors of this book were the participants in the project. Two EU member states are missing: Greece, because no VOM activity has been introduced in this country, and Portugal, because when our project started a new bill on VOM existed but no practical experience had began. Among the non-EU member nations Norway was taken into account because it had a long experience in VOM as a result of a strong governmental public policy which promoted a wide network of groups and services for its implementation. Several Central and Eastern European countries have already adopted legislation on Restorative Justice or VOM (Czech Republic, Estonia, Moldova, Poland, Russia, Ukraine7), so two “new” EU member nations were also included in our project: Poland because 6

The project was co-funded by the Research Institute on Judicial Systems of the Italian National Research Council and by the European Commission Grotius II Criminal Programme (JAI/2002/GRP/029), from November 1st, 2002 to January 31, 2004. The project was promoted and coordinated by Italy with two partners: Austria and Belgium (Mestitz, Pelikan and Vanfraechem, 2004). Namely, the author of this chapter, the project coordinator, was assisted by Simona Ghetti (IRSIG-CNR, Bologna), Christa Pelikan (IRKS, Vienna) and Inge Vanfraechem (OGJC, Catholic University of Leuven). The latter institutions also contributed in the co-funding. 7 For more information see: www.euforumrj.org.

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it has had a network of services offering VOM for many years, and Hungary, where mediation experiences have been established in different sectors such as family, health and work. The methods we used to obtain useful information and ensure the good quality of reports were: - common guidelines for preparing all national reports (established at the very beginning), - evaluation of the national reports by peer review (twice), - final seminar in Bologna, in which participants selected for discussion the most relevant issues emerging from reading the national reports that had been made previously available on the web site of IRSIG-CNR. After the seminar and the end of the project, all participants agreed to revise and transform the national reports into the chapters of this book. Five areas of investigation were explored in participants’ nations by means of common guidelines that have been substantially maintained in the following chapters: a) Norms and legislation allowing for the implementation of victimoffender mediation programmes. An examination of national norms was performed in order to verify the existence, development, and lacunas of normative frameworks for the application of VOM. b) Theoretical frameworks of VOM. M We examined a number of different models for VOM practices currently available in the various countries. c) Organizational structure of VOM. M Different legislation and VOM models lead to different organisational structures. Thus, we gathered information regarding the contexts in which VOM is applied, the institutional set up, the operative units and the amount and type of cases referred to mediation. d) Professional characteristics of mediators. Information was gathered on the status of mediators, their recruitment, educational background and professional training. e) VOM advantages and criticisms. In many countries programmes are currently in their experimentation or initial phase, so we also tried to collect information in each nation on benefits, potential problems, and criticisms. A comparative overview of such a large number of nations needs to make reference to some analytical framework. The two traditional legal categories of civil law and common law, even though useful with regard to some aspects examined in our chapters, do not explain the wide variety of VOM models operating in the nations here examined. To analyse them, it seems more useful and appropriate to make reference to geographical categories as they better explain some similarities in each group of countries. Moreover,

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these categories also remind the different historical roots and legal traditions shared by the four main groups of nations: 1. British isles (Ireland, England and Wales) 2. Northern countries (Sweden, Norway, Finland, Poland) 3. Continental countries (Austria, Belgium, Luxembourg, Germany, Hungary, The Netherlands) 4. Southern “Latin” countries (France, Catalonia/Spain, Italy). Thus the book includes these four parts. In the majority of cases the categorization works, but in some cases the inclusion of some nations in one or in another group might be questionable. Although some authors raise relevant theoretical issues with reference to single countries, it is beyond the scope of this chapter to enter into a comparative theoretical debate. It is my more modest intention here to set out a synthetic analysis of the common steps in the field of VOM with youth offenders throughout Europe.

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1. 2. 3. 4.

COMMON STEPS TOWARD VOM IMPLEMENTATION The common steps discussed here refer to the following aspects: the diffusion of VOM, norms and practices, VOM services and coordination, mediators’ recruitment and training.

3.1

Diffusion of VOM

The first and most interesting cross-cultural feature which emerges from the following chapters is the process which led to the introduction of VOM. In judicial systems any reform is generally introduced top-down through new norms, but VOM was introduced in the majority of our 15 countries by spontaneous bottom-up processes promoted by different professional and social groups and introduced in absence of laws mainly through pilot projects. In England, as mentioned above, VOM and reparation programmes were adopted in absence of specific norms in the framework of the so-called “stand alone model” (Dignan and Marsh, 2001: 86). In Belgium “small nongovernmental organizations for juvenile assistance took the first initiatives” (Aertsen, 2000: 153). In Finland the first action-research project was supported by different social groups and initially funded by the Academy of

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Finland and the city of Vantaa8. In Luxembourg penal mediation was promoted by professionals from the social and judicial field and prosecutors9. In Austria the initiative “was taken predominantly by juvenile judges, together with public prosecutors in the field of juvenile justice and by the Probation Service Association” (Pelikan, 2000: 125). In France it was promoted by magistrates (judges and public prosecutors) and applied under “a broad (and for some magistrates daring) interpretation of article 40 of the Code of Criminal Procedure”; magistrates appreciated the “appropriateness of this procedure” which was seen as “the driving force of the development of mediation” (Jullion, 2000: 221). Juvenile magistrates (judges and public prosecutors) promoted VOM in Italy as well (Mestitz, 2004). In Germany the promoter groups of VOM included “professors of criminal law together with social and street workers, social education workers (many of them from the offenders’ assistance service) and prosecutors” (Bannenberg, 2000: 253). In Poland authorities were encouraged to plan the first 5 experiments with VOM by a mixed informal group (then transformed into a formal Committee) composed of law professors, legal practitioners, “officials of the Ministry of Justice, the employees of the Senators Service Office, employees of the Prison Service, students and employees of the municipalities” (Czarnecka-Dzialuk and Wojcik, 2000: 310). In Norway “the first idea of victim-offender mediation came from the academic sphere through the article by Professor Christie10 while the realisation was carried out by the authorities, the Ministry of Justice and Attorney General. They made use of the idea, and gave mediation status and influence” (Paus, 2000: 285-286). Similar processes took place in other continents. In New Zealand and Australia, for instance, the family group conferences (conferencing, circles etc.) were promoted by social groups in different forms and - again - in absence of specific norms. In New Zealand the emergence of conferencing was due to different groups such as “state official and professional workers (who were subsequently supported by members of the judiciary)” and by Maori groups, whereas in Australia “mid-level administrators and professionals (including the police)” ,,were the promoters (Daly, 2001: 61). In 1989 conferencing was formally introduced in New Zealand; in Australia it appeared 2 years later when the first Wagga Wagga experiment based on the theory of “reintegrative shame” (Braithwaite, 1989) took place (McCold, 2001). In the mid 90s South Africa also begin the first two experiments with family group conferences in absence of norms (Skelton and Frank, 2001). This peculiar development of restorative justice is probably due to the fact that, as has been argued, it “is a theory of justice that has grown out of 8

See chapter 6 by Ossi Eskelinen and Juhani Iivari. See chapter 10 by Paul Schroeder. 10 The author refers to the article by Christie (1977). 9

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experience. It has been informed by indigenous and customary responses to crime, both those of the past and those used today” (Van Ness, Morris and Maxwell, 2001). It has also been stressed that “What is clear is that pressure for restorative justice alternatives or complements to mainstream justice institutions are emerging world-wide. Some of these pressures come from aboriginal communities in societies that have been characterized by the imposition of state-centred retributive justice by colonialist powers11. Some have their origins in moral or religious opposition to some of the more egregiously dysfunctional aspects of mainstream criminal justice12. Other such pressures are coming from institutional tensions inherent in modern criminal justice systems whether their roots are in the European civil law tradition13 or in the various legal cultures which originate from the common law of England14.” (Archibald, 2001: 179). To sum up, at the very beginning VOM was almost always introduced in Europe through spontaneous bottom-up processes actively promoted by the academy and different social groups often including legal professionals such as lawyers, judges, public prosecutors15. The process developed easily because Restorative Justice - the framework of VOM - is based more on values than on politics, it is grounded in the past and rooted in the individuals’ moral/religious values and sense of justice. In many countries public policies - both at national/federal and/or local levels - aiming to introduce VOM practices and services were based on the idea that VOM with adult and young offenders would be an effective tool for crime prevention and thus for increasing the citizen’s security.

3.2

Norms and practices

As mentioned above, a second common feature in our 15 countries is that VOM was in general introduced in absence of specific laws and through pilot projects. Only after (often many) years of practice new norms or law changes were implemented. Without entering into detail it is enough to note that a clear tendency on norms and regulations concerning VOM actually does not emerge: about half of the countries examined in this book have enforced specific laws on VOM with youth offenders while the other half have not. Thus, there is a lack of specific norms on VOM since they were 11

This is certainly the case in Africa, Australia, New Zealand and North America. Zehr (1990). 13 Council of Europe (2000). 14 For restorative justice developments in England see Marshall (1999). For a description of Canadian restorative justice programmes, see Church Council on Justice and Corrections (1996). 15 The same process seems to be in course at present in other nations, as in Argentina (Kemelmajer de Carlucci, 2004). 12

1. VOM with Youth Offenders in Europe

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not implemented in Belgium, Denmark, Finland, England and Wales, Italy, he Netherlands and Luxembourg. In these countries no specific laws have been passed so far even though the first pilot projects started many years ago16. Instead in Austria, Germany, Norway, Sweden, Poland and Spain/Catalonia, specific norms have been enforced. In France and Ireland the norms implemented are not specific for VOM for juvenile offenders. Table 1-1 shows that the first pilot projects and experiments were run in 6 countries between 1981 and 1984 (Austria, Belgium, England and Wales, Finland, Germany, Norway), then other countries followed in the wave: Italy and Poland in 1995 and Luxembourg in 1997 were the last. Norms were enforced later and, most interestingly, the time interval between the first VOM pilot projects/experiments and the implementation of a specific law in the various countries generally ranges between long to very long, reaching even as much as 10 years (Table 1-1). Considering the 8 countries where the norms were enforced, including France and Ireland in the group, the mean time interval is 7 years (Table 1-1). Table 1-1. Overview of the time intervals between the first VOM pilot projects/experiments and the implementation of laws regulating VOM. A B C countries first pilot projects first VOM specific time interval laws/norms (years from A to B) Austria 1984 1988 4 Belgium/Walloon 1984 (no law) n.a. Belgium/Flanders 1987 “ n.a. England and Wales 1983 “ n.a. Finland 1983 “ n.a. France 1984 1993* 9 Germany 1984 1990 6 Ireland 1999 2001* 2 Italy 1995 (no law) n.a. Luxembourg 1997 “ n.a. The Netherlands 1990 “ n.a. Norway 1981 1991 10 Poland 1995 1997 2 Spain/Catalonia 1990 2001 10 Sweden 1987 2002 15 Mean value 7 * no specific law n.a. not applicable

16

The research project, previously described in section 2, was particularly useful in Italy as it permitted us to carry out the first field researches to explore these experiences enlightening the “how, where, who and when” of victim-offender mediation with youth offenders (Mestitz, 2004).

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Another common feature is that in the majority of continental European countries - with a predominant civil law tradition of Napoleonic origin VOM maintains a very close relationship with the judicial system, being an “in-court” or “near-court” procedure. Only in the Anglo-Saxon and Scandinavian countries is VOM mainly an “out-of-court” strategy (England and Wales, Ireland, Sweden and Denmark17), often carried out by specialized groups of police officers before bringing the cases to prosecution. Indeed, in these nations a strong tendency to apply VOM before the cases are brought into the criminal judicial system has emerged. It is interesting indeed that very often the first pilot projects and experiments were run with youth offenders. The following chapters will show this common feature in the majority of nations. In addition, it is worth noting that the essence of VOM practice appears very similar throughout the different nations, notwithstanding the different legal models applied. For example, in all countries VOM is a process in which one (or more) mediator assists the victim and the juvenile offender to address the consequences of the offence for both parties. The aim is to reach an agreement between the victim and the young offender in order to repair in some way the crime and to make the offender aware and responsible for his/her wrongdoing. Moreover, VOM with young offenders is used as a diversionary/educational measure and follows the referral of a case involving a juvenile offender, the referral being made by an agency legally responsible for dealing with offences by juveniles (e.g., prosecutors, police, courts, social services etc.). As we will see in detail in the following chapters, in practice the mediation activity is carried out through different steps (ranging from 3 to 6, according to the classification adopted by the various authors), that can be roughly summarized in 3 main phases: - Preliminary phase, including: referral procedure, information collection, contacts with the parties, evaluation of the case to be mediated, organization of the first meeting between the victim and the offender. - Mediation meeting/s and agreementt are the central phase where the parties assisted by one or more mediators search for a common agreement, sometimes writing a formal agreement. - Concluding phase including: evaluation by mediators, a final report to be sent to the authority who referred the case, follow-up on the implementation of the mediation agreement. In spite of the great interest around VOM, it is still a more or less marginal practice in the majority of countries we examined (in Germany, Finland, The Netherlands, Poland, Sweden) or it is still applied in the form 17

For an analysis of Danish pilot projects with VOM see Henriksen (2003).

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of pilot projects (in Denmark, Italy and Ireland). Just to give an idea of the small percentages of VOM in these countries, in Germany educational measures including VOM decreased to 4.6%18, in Sweden 7% of juveniles have been referred to mediation19. In Italy in 2000 our data regarding only 6 VOM experimental units (out of 8) show that 0.46% of all juvenile referrals to the juvenile prosecution are then referred to mediation. Only in a minority of countries is the degree of application of VOM remarkable: in Spain/Catalonia, Luxembourg, Norway, for example, about 17% of offences committed by juveniles are referred to mediation; in Austria the figure is about 15%20. Also in France and Belgium/Flanders VOM appears widespread21. These countries where a wide application can be noticed are those where the first VOM experiments took place, long before the procedure appeared in other European countries. An important indicator of the degree of application of VOM are the numbers of services and mediators operating in each country. They range between very few in some countries (e.g., 3 services in Ireland, 8 in Italy) to many (e.g., 104 services in Sweden, about 200 in France and 300 in Germany). Nations with a significant number of VOM services are not those with a longer experience but those with larger national territories such as Germany, England and Wales, France and Sweden. A low number of VOM services over a small territory - as in Belgium, Austria, Ireland, The Netherlands, Spain/Catalonia - can be considered a satisfactory degree of application of VOM, but similar numbers on an extended territory, as in Italy, represent an indicator of slow development. I agree with Weitekamp (2001) that Italy is among those countries which are little involved in the restorative justice movement and I should add that after a first period (in the second half of 1990s) when VOM initiatives grew up very quickly, actually a stagnation phase seems to have set in, despite efforts by professional and social groups, including a very motivated minority of juvenile lay judges and magistrates.

3.3

VOM services and coordination

The coordination of VOM in part depends on the network of services offering VOM activities, which do not vary greatly in the countries 18

See chapter 11 by Michael Kilchling. See chapter 4 by Lottie Walhin. 20 See chapter 16 by Jaume Martin Barberan, 10 by Paul Schroeder, 5 by Siri Kemeny, 8 by Veronika Hofinger and Christa Pelikan. 21 Statistical data from France and Belgium/Flanders cannot be compared to the previous ones. See chapter 14 by Philip Milburn and chapter 9 by Anne Lemonne and Inge Vanfraechem. 19

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examined. Basically, there are three categories: public (national and/or local) services, private services often including volunteers, and mixed public/private services. These are arranged along a continuum, at one end of which there is one country with only volunteer services (Norway), at the other the nations (or part of Federal states) with only public VOM services. The majority of countries stand in the middle having mixed public and private services. In a number of countries specific public mediation services were created. This was the case in Austria, Belgium/Flanders, Finland, The Netherlands, Spain/Catalonia. In Anglo-Saxon and Scandinavian nations the “public services” are in fact the police officers who carry out VOM; in other countries the court social services do (as in France, Germany, Italy and Ireland). Local social services also carry out VOM and/or frequently cooperate with other groups such as court social services (as in Italy). To enter in the ongoing debate regarding VOM practices carried out by police officers goes beyond the scope of this writing. Suffice it to recall that many authors have raised arguments and criticisms in this regard22, and research studies of the Canberra (AU), Bethlehem (USA) and Thames Valley (UK) initiatives has shown “empirically that police-led conferencing is prone to some distinctive pitfalls. Traditional police culture and the authoritarian questionable practices it can generate, present a significant obstacle to the successful implementation of restorative justice.” (Young, 2001: 220-221). In general it can be noted that in continental Europe there certainly prevails a strong orientation to organize VOM in the framework of public services, while in England and Wales and Northern countries private/volunteer services and groups are more diffused. As far as mediators are concerned, they can be classified into two main categories: professionals and volunteers. The difference between the two groups is that professionals occupy a stable position and receive a salary while volunteers have neither one nor the other. Volunteer mediators are mainly those carrying out VOM in Anglo-Saxon and Northern countries, whereas professional mediators are those specifically recruited to carry out VOM in continental nations. But we can also classify as professionals the specialized police officers as well as social workers (both of court services and of local services). It is evident that the mediators’ categories influence to a large extent the existence/absence of a coordinating institution or agency. Volunteer groups can hardly be organized or coordinated from the top, whereas this is easier with public servants and groups. From an organizational point of view, the existence of a central agency which coordinates the different initiatives in 22

See Young (2001). On the debate on punishment and restoration see Walgrave (2001).

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the field of VOM is relevant for human and financial resources. In fact, in the large majority of countries there is a central agency acting as the promoter of VOM initiatives, providing guidelines or standards, sometimes coordinating and funding local services and groups, and/or providing for the training of mediators. They may be departments of the State governments, often the Ministries of justice. A central agency is lacking only in Finland, England and Wales, and in the French speaking areas of Belgium (Walloon and Brussels). In Ireland the coordination of VOM in the juvenile area is governed by the police structure while private/volunteer VOM services without coordination carry out VOM with adult offenders. In the majority of nations a central agency (a specific one or a Ministry) is considered an essential part of the organizational set-up concerned with the network of services working in the field of VOM. In 5 countries the Ministries of justice play the role of central agencies (France, Italy, The Netherlands, Norway, Spain/Catalonia), while in 5 other countries (Austria, Belgium/Flanders, Germany, Sweden and Poland) specific central agencies have been created. In some cases, these last are funded by a Ministry or State department.

3.4

Recruitment and training of mediators

We have noticed a major trend to recruit qualified experienced mediators and to provide for, more or less short training periods. A second minor orientation is the recruitment of both inexperienced mediators and experienced professionals who are often employed as social workers in the public services. In almost all countries mediators undergo the training period after recruitment. Two main orientations emerge. First, the recruitment of qualified and experienced mediators is preferred probably because this choice allows to reduce training costs remarkably. Second, when the recruitment is addressed both to qualified and experienced mediators and inexperienced mediators, in both cases training periods are provided for. When police officers and social workers take on mediation responsibilities as a part of their duties, they receive specific training. Four remarkable exceptions emerge in the framework outlined above: 1. Luxembourg is the only country where the training is provided before recruitment. Moreover, recruitment, training and mediation activities are carried out inside the same institution, the Centre de médiation, so the training is useful to evaluate new mediators’ skills and capacities23. This model seems to be working very well; unfortunately it would be 23

See chapter 10 by Paul Schroeder.

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impossible to transfer the model of a single centralized centre to other countries with large territories. 2. Austria is the only country where the training is very long even though qualified mediators (social workers, lawyers, psychologists, sociologists etc.) are recruited. The training lasts 4 years: the first year is devoted only to the training; subsequently mediators work under supervision and attend 5-week courses each year24. 3. In Germany and Belgium/Flanders there is no training because only experts are recruited. These professionals are the same as in Austria where, however, they receive a very long training. Only in the above mentioned four countries is recruitment of mediators based on their formal university degrees; in the majority of our nations professional experience with children and adolescents is considered sufficient qualification to work in the mediation field. A general overview seems to show that many countries deem that a short training period of 4-5 days is enough to become mediator. This would imply that in general the role of mediator is considered to be quite simple. Apart from Austria, the longer training periods are undertaken by mediators in Italy and Luxembourg. In Italy the training is much longer, lasting a mean of 315 hours (Mestitz, 2004). In these two countries mediators (though not all Italian mediators) have been trained by Jacqueline Morineau (1998), whose method is called in Italy the “French model”. In France itself the model lacks followers, as Philip Milburn noted: “Models (like the Morineau) that seem to have some success at international level in VOM have not made a significant impact on the French experience”25. Almost everywhere the training includes on-the-job activities, meaning, in practice, co-mediation. This is widely used in the United States (Umbreit, 2001) but rarely in Europe where in almost all nations VOM meetings are carried out by only one mediator; when a second mediator is present in the meetings he/she is engaged in on-the-job training. The only exceptions are Italy and Luxembourg, where co-mediation is adopted in line with the theories and training carried out by Morineau. This choice can be dysfunctional, requiring twice the number of mediators; indeed sometimes in Italy there are three (Mestitz, 2004).

4.

FINAL REMARKS

The above overview has shown that the main differences emerged between British isles and Northern European countries on the one hand and 24 25

See chapter 8 by Veronika Hofinger and Christa Pelikan. See chapter 14 by Philip Milburn.

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continental and Southern ones on the other, and that they appear to stem from both the different legal traditions and organizational procedures. Suffice it to recall three aspects: a) VOM is mainly an “in-court” or “near-court” procedure with the exception of Anglo-Saxon and (partly) Scandinavian countries, where VOM is an “out-of-court” strategy; b) in continental and Southern Europe a strong orientation to organize VOM as a public service prevails, whereas England and Wales and Northern countries seem to prefer private/volunteer services and groups; c) volunteer mediators prevail in Anglo-Saxon and Northern countries, professional mediators in continental and Southern Europe. Nevertheless, some common points must be noted. In other parts of the world pressures for adopting restorative justice come from aboriginal communities returning to ancient strategies of justice, while in European societies pressure groups come back to appeal to moral and/or religious values in order to overcome dysfunctional aspects of criminal justice. Here restorative justice practices and VOM seem to gain more and more consensus because they are based more on values than on politics, they are rooted in the individuals’ values of solidarity and sense of justice. On the other hand, many common cross-cultural features emerged from our summary overview notwithstanding the different approaches, legal traditions and organization of VOM services. They are mainly concerned with the similar substance of VOM and the processes involved. Moreover, public policies aimed to implement VOM with young offenders are almost everywhere conceived as an effective tool for crime prevention, for increasing citizen’s security as well as for educational and diversionary aims and for overcoming the unsatisfactory management of juvenile justice through the retributive approach to criminal justice. The process which led to the introduction and diffusion of VOM in EU countries shows a common model. In judicial systems any reform is generally introduced top-down through new norms, but VOM was almost always introduced by spontaneous bottom-up processes promoted by social and professional groups and/or movements. Very often this peculiar process was implemented in the absence of norms and through very similar VOM practices. Everywhere very motivated individuals and groups made VOM work. This seems a precious resource in order to further develop the restorative justice approach and VOM itself in Europe. Another similarity was the fact that specific norms on VOM were proposed and enforced long after the first pilot experiments with VOM took place and in many nations no regulations have been introduced so far. Sooner or later the problem of norms will be overcome as EU states are

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specifically requested by the EU Council to adapt their legislation in this sense by March 2006 (Framework Decision of March 15, 2001, arts. 10, 17). Moreover, the first pilot projects were run with juvenile offenders in many European countries just as had happened in New Zealand and Australia and in other parts of the world. This shows that once again the juvenile justice system had played the role of the “Trojan horse” with the new restorative approach to crime, as two decades ago when “The move toward the welfare state was accompanied by a new approach to crime, emphasizing social policy at the expense of legal considerations, with attitudes toward crime committed by minors often playing the role of the Trojan horse in the citadel of the classic legal system” (Damaska, 1981: 126). In other words the pilot projects introducing VOM with juveniles confirm that the juvenile justice system often does play the role of a laboratory where innovations and new ideas may be tested and sometimes transferred into the adult judicial system. A further and last point is that very frequently in continental and Southern European countries VOM is closely tied to the judicial systems. Thus judges and public prosecutors seem to lead the spread of VOM in the majority of countries. On the other hand this is confirmed by the recent establishment by French magistrates (both judges and public prosecutors) of a new European association aimed precisely to develop VOM and conciliation in the judicial context. The new association G.E.M.ME. (Groupement Européen des Magistrats pour la MÉdiation) was founded in December 2003, and national sections are now going to be established in many countries. The association includes mainly public prosecutors and judges, but lawyers, scholars and researchers in the field of mediation may also be accepted as members. Certainly this initiative shows that the wide interest for VOM is spreading around Europe. G.E.M.ME. can be useful as a pressure group to further develop mediation practices in Europe, but in my view there is a hidden risk. Taking into account that in continental and Southern European countries the gatekeepers of VOM are public prosecutors and judges, the new association might assume a leading role in proposing legislation and influencing EU public policies in such a way as to focus more on the interests of the magistrates and less on the interests of the mediators, pressuring countries utilizing VOM as an out-of-court procedure to modify such measures, moving more and more toward in-court procedures.

REFERENCES Aertsen, I., 2000, Victim-Offender Mediation in Belgium, in: Victim-Offender Mediation in Europe. Making Restorative Justice Work, European Forum for Victim-Offender Mediation and Restorative Justice, ed., Leuven University Press, Leuven, pp. 153-192.

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Archibald, B., 2001, Citizen participation in Canadian criminal justice: the emergence of ‘Inclusionary Adversarial’ and ‘Restorative’ models, in: Citizenship and Citizen Participation in the Administration of Justice, S.G. Coughlan and D.D. Russell, eds., Éditions Thémis, Montreal, pp. 149-192. Bannenberg, B., 2000, Victim-Offender Mediation in Germany, in: Victim-Offender Mediation in Europe. Making Restorative Justice Work, k European Forum for VictimOffender Mediation and Restorative Justice, ed., Leuven University Press, Leuven, pp. 251-279. Braithwaite, J., 1989, Crime, Shame and Re-Integration, Cambridge University Press, Cambridge, Massachusetts. Christie, N., 1977, Conflicts as property, British Journal of Criminology, 17(1):1-15. Church Council on Justice and Corrections, 1996, Satisfying Justice: A Compendium of Initiatives, Programs and Legislative Measures, Correctional Service of Canada, Ottawa. Council of Europe, 2000, Mediation in penal matters: Recommendation No. R (99) 19 and explanatory memorandum, Council of Europe, Strasbourg. Czarnecka-Dzialuk, B., and Wojcik, D., 2000, Victim-Offender Mediation in Poland, in: Victim-Offender Mediation in Europe. Making Restorative Justice Work, European Forum for Victim-Offender Mediation and Restorative Justice, ed., Leuven University Press, Leuven, pp. 309-335. Daly, K., 2001, Conferencing in Australia and New Zealand: Variations, Research Findings and Prospects, in: Restorative justice for Juveniles. Conferencing, Mediation and Circles, A. Morris and G. Maxwell, eds., Hart Publishing, Oxford, pp. 59-83. Damaska, M., 1981, The reality of prosecutorial discretion: comments on a German monograph, American Journal of Comparative Law, XXIX(1):119-138. Dignan, J., and Marsh, P., 2001, Restorative Justice and Family Group Conferences in England: Current State and Future Prospects, in: Restorative justice for Juveniles. Conferencing, Mediation and Circles, A. Morris and G. Maxwell, eds., Hart Publishing, Oxford, pp. 85-101. European Forum for Victim-Offender Mediation and Restorative Justice (ed.), 2000, VictimOffender Mediation in Europe. Making Restorative Justice Work, Leuven University Press, Leuven. Henriksen, C.S., 2003, Victim-Offender Mediation in Denmark; www.dkr.dk (The Danish Crime Prevention Council, Glostrup). Jullion, D., 2000, Victim-Offender Mediation in France, in: Victim-Offender Mediation in Europe. Making Restorative Justice Work, European Forum for Victim-Offender Mediation and Restorative Justice, ed., Leuven University Press, Leuven, pp. 211-249. Kemelmajer de Carlucci, A., 2004, Justicia Restaurativa, Rubinzal-Culzoni Editores, Santa Fé, Argentina. Marshall, T., 1999, Restorative Justice: An Overview, Home Office, London. McCold, P., 2001, Primary Restorative justice practices, in: Restorative justice for Juveniles. Conferencing, Mediation and Circles, A. Morris and G. Maxwell, eds., Hart Publishing, Oxford, pp. 41-58. Mestitz, A. (ed.), 2004, Mediazione penale: chi, dove, come e quando, Carocci, Roma. Mestitz, A., Pelikan, C., and Vanfraechem, I., 2004, Victim-Offender mediation: organisation and practice in the juvenile justice systems, Newsletter of the European Forum for VictimOffender Mediation and Restorative Justice, 5(1):8. Miers, D., and Willemsens, J. (eds.), 2004, Mapping Restorative Justice. Developments in 25 European Countries, European Forum for Victim-Offender Mediation and Restorative Justice, Leuven.

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Morris, A., and Maxwell, G. (eds.), 2001a, Restorative Justice for Juveniles. Conferencing, Mediation and Circles, Hart Publishing, Oxford. Morris, A., and Maxwell, G., 2001b, Family Group Conferences and Reoffending, in: Restorative Justice for Juveniles: Conferencing, Mediation and Circles, A. Morris and G. Maxwell, eds., Hart Publishing, Oxford, pp. 243-263. Paus, K.K., 2000, Victim-Offender Mediation in Norway, in: Victim-Offender Mediation in Europe. Making Restorative Justice Work, European Forum for Victim-Offender Mediation and Restorative Justice, ed., Leuven University Press, Leuven, pp. 281-380. Pelikan, C., 2000, Victim-Offender Mediation in Austria, in: Victim-Offender Mediation in Europe. Making Restorative Justice Work, European Forum for Victim-Offender Mediation and Restorative Justice, ed., Leuven University Press, Leuven, pp. 125-152. Peters, T., 2000, Victim-Offender Mediation: Reality and Challenges, in: Victim-Offender Mediation in Europe. Making Restorative Justice Work, k European Forum for VictimOffender Mediation and Restorative Justice, ed., Leuven University Press, Leuven, pp. 915. Shapiro, M., 1981, Courts. A Comparative and Political Analysis, University of Chicago Press, Chicago and London. Skelton, A., and Frank, C., 2001, Conferencing in South Africa: Returning to Our Future, in: Restorative justice for Juveniles. Conferencing, Mediation and Circles, A. Morris and G. Maxwell, eds., Hart Publishing, Oxford, pp. 103-119. Umbreit, M.S., 2001, The Handbook of Victim-Offender Mediation, Jossey-Bass Inc., San Francisco, California. Umbreit, M.S., Coates, R.B. and Vos, B., 2001, Victim Impact on Meeting with Young Offenders: Two Decades of Victim Offender Mediation Practice and Research, in: Restorative justice for Juveniles. Conferencing, Mediation and Circles, A. Morris and G. Maxwell, eds., Hart Publishing, Oxford, pp. 121-143. Van Ness, D., Morris, A., and Maxwell, G., 2001, Introducing Restorative Justice, in: Restorative justice for Juveniles. Conferencing, Mediation and Circles, A. Morris and G. Maxwell, eds., Hart Publishing, Oxford, pp. 3-16. Walgrave, L., 2001, On Restoration and Punishment: Favourable Similarities and Fortunate Differences, in: Restorative justice for Juveniles. Conferencing, Mediation and Circles, A. Morris and G. Maxwell, eds., Hart Publishing, Oxford, pp. 17-37. Weitekamp, E.G.M., 2000, Research on Victim-Offender Mediation. Findings and Needs for the Future, in: Victim-Offender Mediation in Europe. Making Restorative Justice Work, k European Forum for Victim-Offender Mediation and Restorative Justice, ed., Leuven University Press, Leuven, pp. 99-121. Weitekamp, E.G.M., 2001, Mediation in Europe: Paradoxes, Problems and Promises, in: Restorative justice for Juveniles. Conferencing, Mediation and Circles, A. Morris and G. Maxwell, eds., Hart Publishing, Oxford, pp. 145-160. Young, R., 2001, Just Cops Doing “Shameful” Business? Police-led Restorative Justice and the Lessons of Research, in: Restorative justice for Juveniles. Conferencing, Mediation and Circles, A. Morris and G. Maxwell, eds., Hart Publishing, Oxford, pp. 195-226. Zehr, H., 1990, Changing Lenses: A New Focus for Crime and Justice, Herald Press, Waterloo.

PART ONE BRITISH ISLES

Chapter 2 VICTIM-OFFENDER MEDIATION IN ENGLAND AND WALES David Miers and Michael Semenchuk -

1

1.

OVERVIEW

1.1

Historical introduction

During the 1980s a wide range of community-based non-statutory projects were introduced in England and Wales which, broadly speaking, had as their primary objective the promotion of “better” alternatives to the criminal justice system. For this purpose, “better” embraced such secondary objectives as the reparation of the victim, mediation leading to reconciliation, victim assistance, diversion and reductions in (re)offending. In slightly different guises these are recognisably the objectives of the Restorative Justice movement (hereafter RJ) in England and Wales, which currently informs Home Office policy for the youth justice system. Within that policy, victim-offender mediation (hereafter VOM) comprises one of a number of methods by which offenders may come to make restoration to their victims. The first systematic use of VOM for young offenders in England and Wales was made by the Exeter Youth Support Team in the early 1980s (Marshall, 1996; Crawford and Newburn, 2003). Much more frequent were diversion schemes. These were typically arrangements between the police and the local social services departments in which young offenders who

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We are grateful to Martin Wright and Chris Stanley for helpful suggestions. The usual disclaimer applies.

23 A. Mestitz and S. Ghetti (eds.), Victim-Offender Mediation with Youth Offenders in Europe, 23-46. © 2005 Springer. Printed in the Netherlands.

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were cautioned were invited to make direct or indirect reparation to the victim. Mediation appears as a little used possibility in one or two of these schemes. In his 1984 review, Marshall identified altogether one (adult) community mediation scheme, four police-based reparation schemes (all juveniles), three court based reparation schemes (two juveniles), and 11 victim assistance repair or fund raising schemes (all adult) (Marshall, 1984). A year later Marshall and Walpole (1985) counted: • six community dispute-resolution schemes (addressed to adults only), • two police based mediation schemes (one juvenile: the Juvenile Mediation Project), • six police juvenile panel reparation schemes (all diversion schemes, no mediation contemplated), • five reparation within intermediate treatment projects (all young offenders), • 15 probation run court based reparation schemes (all adults), and • two other court based reparation projects (both adults). As this shows, VOM figured very rarely within the youth justice system in the mid-1980s. Nevertheless, the substantial increase in the overall number of the schemes reviewed by Marshall and Walpole (19 in 1984, 36 in 1985), together with a more general acceptance within government of their possibilities prompted the Home Office to fund in 1985 four experimental projects over a two-year period. These were located in Coventry, Leeds, Wolverhampton and Cumbria. Their clients included adult offenders. Alongside this funding, the Home Office commissioned evaluative research of these schemes (Davis et al., 1987). This demonstrated very clearly the conceptual, terminological and practical difficulties and inconsistencies that lie within the broad design and delivery of mediation and reparation. Many of the points made in later research papers can be found here: selection criteria, problems of resourcing, conflicting goals, degrees of co-operation from statutory agencies, volunteers/experts, net widening and voluntariness (see also Davis et al., 1988). Important during this time was the greater emphasis that the voluntary organisations delivering mediation services placed on mediation as a process, rather than as a means of delivering a product, such as reparation or diversion. This shift was in part due to the work of FIRM (Forum for Initiatives in Reparation and Mediation) founded in 1984, later renamed Mediation UK, which was responsible for the development of good practice guidelines.

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Reviewing the previous two decades in 2001, the Youth Justice Board said of VOM (in general, without differentiation between adult and young offenders): “Since the early 1980s different projects in England & Wales have sought to use victim-offender mediation throughout the criminal justice process, without any legislative footing. Some used mediation as part of a diversionary strategy, others in the time between a (guilty) plea being entered at court and the sentence being passed, while others attempted mediation during a custodial or community sentence. Victim-Offender Mediation has been used successfully in many instances of serious offending” (Youth Justice Board, 2001). In the late 1990s, in preparation for its plans to support RJ initiatives, the Home Office commissioned a comprehensive overview of its meanings, purposes, practices and impacts (Marshall, 1999). Without differentiating adult from young offenders, Marshall noted that VOM in England and Wales “is usually offered by specially constituted programmes that are run semiindependently of criminal justice agencies, although they are often managed by them” (Marshall, 1999: 11). He also reviewed a number of other evaluations of mediation between victims and adult offenders conducted in the late 1980s and early 1990s. These showed a high degree of victim interest in VOM, a low level of direct mediation, but high levels of satisfaction post-VOM (Marshall, 1991; Umbreit and Roberts, 1996). The Home Office also commissioned a study of seven locally funded RJ schemes, some of which had been in existence since the 1980s, while others were much more recent (Miers et al., 2001). All seven focussed on young offenders; five of them exclusively so. Three were caution plus schemes that offered no VOM. The other four all offered VOM. For a variety of reasons, the number of completed direct mediations in each of the three young offender only schemes offering VOM comprised a very low proportion of the number of referrals: 2%-16%. With the addition of indirect mediation, the proportions ranged between 10% and 56%. The base figures themselves were low. This research confirmed that VOM “has remained small scale and limited to a narrow range of relatively minor offences” (Crawford and Newburn, 2003: 27). The low salience of VOM in the youth justice system has in recent years been further attenuated by the growth of conferencing as an alternative for young offenders. An important initiative in this context is the Thames Valley Police restorative cautioning scheme, where many conferences are one to one, or one plus parent to one (Hoyle et al., 2002; see further section 1.4). In sum, practice in England and Wales has, unlike other European jurisdictions, tended to be pragmatically rather than theoretically driven.

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There has been no development of any overarching theoretical tradition; rather, the practices that have emerged have been a matter of differing emphasis between those who conceive mediation as a good in itself and those who conceive it as a means to an end (Miers, 2001; 2004). What is of greater salience is the general acceptance of those second-order values that inform the mode of delivery of mediation in any case. Here the normative role of bodies such as Mediation UK and the Restorative Justice Consortium, which we explore further below, are of national importance2. It should also be noted that mediation has been and is practised in England and Wales in a variety of contexts; not just, and not even primarily within criminal justice. For example, under section 29 of the Family Law Act 1996, a person shall not be granted legal aid for the purposes of proceedings in family matters who has not first attended a meeting with a mediator. There are a number of voluntary bodies that offer mediation services for family matters3. Beyond this, mediation and such analogues as conciliation and arbitration are long established features of employment law, commercial and construction law.

1.2

A new regime for young offenders

During the late 1990s, the Government reviewed its overall response to youth offending. The White Paper, No More Excuse - A New Approach to Tackling Youth Crime in England and Wales (Home Office, 1997), led to the introduction in the Crime and Disorder Act 1998 and the Youth Justice and Criminal Evidence Act 1999 of a number of new measures concerning the youth justice system. These changes, which were both institutional and remedial, are summarised in the following paragraphs. 1.2.1

The Youth Justice Board, Youth Offending Teams and Youth Offender Panels

Established by section 41 of the Crime and Disorder Act 1968, the Youth Justice Board (YJB) has direct responsibility for the youth justice system. The YJB is a non-departmental public body whose sponsoring department is the Home Office. Its principal aim is to prevent offending by children and 2

Founded in 1997, the Restorative Justice Consortium co-ordinates the work of organisations with an interest in RJ. This includes, but is not confined to, mediation. As their different names suggest, these two organisations, though have some common interests, have different foci. For Mediation UK see http://www.mediationuk.org.uk/, and for the Restorative Justice Consortium, see http://www.restorativejustice.org/. 3 Some useful websites about family mediation are www.nfm.u-net.com (National Family Mediation) and UK College of Family Mediators (www.ukcfm.co.uk).

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young people. One of its principal features is the inclusion of RJ as a central practice in the system’s response to offending. The Board has identified the following objectives for RJ: • To attend fully to victims’ needs - material, financial, emotional and social (including those who are personally close to the victim who may also be affected). • To allow the victim the opportunity to view the offender as a person, rather than an “unknown” person who previously offended. • All parties directly affected by an offence are given the opportunity to contribute to decision-making about what needs to be done (although the victim has no responsibility for sentencing decisions). • To enable offenders to fully appreciate the consequences of their actions, and be given the opportunity to make amends for their actions. • To prevent re-offending by reintegrating offenders into communities. • To create communities that support the rehabilitation of offenders and victims, and are active in preventing crime through positive interventions. • To provide a means of avoiding escalation of legal justice and the associated costs and delays. The YJB monitors the operation of the youth justice system and the provision of youth justice services. Of particular importance is its oversight of Youth Offending Teams (YOTs). Also introduced by the Crime and Disorder Act 1998 (section 39), YOTs are among the most far reaching of these reforms, replacing the earlier reliance on local authority social services departments. Every local authority must provide a YOT; provision is sometimes made in conjunction with a neighbouring authority. In total there are 155 YOTs. Each has a dedicated manager and representatives from each of the police, social services, the Probation Service, health and education services. They are multi-agency organisations that may co-opt others, for example from the voluntary sector. YOTs’ primary functions are to co-ordinate the provision of youth justice services within their local authority, and to carry out such functions as their local authority requires in the implementation of their youth justice plan. Their more particular purpose when administering the court’s orders is to agree, co-ordinate and monitor programmes of behaviour for the young offenders whom the courts refer to them. These may include rehabilitation programmes, which may in turn include sessions on victim awareness or the wider consequences of offending behaviour. The final element of these new institutional arrangements is the Youth Offender Panel. These Panels operate only in respect of referral orders. Introduced by section 6 of the Youth Justice and Criminal Evidence Act 1999, it is the YOP that devises the exact nature of the “contract” arising

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from the order. The Panel should consist of the young person and their family or carers, the victim(s) if they wish to attend, and a panel consisting of at least two lay members of the community who have undergone special training, and advised by a Youth Offending Team Officer. It is hoped that the victim and his family or supporters will attend; but there is no obligation to do so. 1.2.2

The new non-custodial remedies

The Crime and Disorder Act 1998 and the Youth Justice and Criminal Evidence Act 1999 introduced five new non-custodial disposals for young offenders: final warnings, reparation orders, action plan orders, supervision orders and referral orders. With the exception of final warnings, which are made by the police, it is the youth court that orders them all. Referral orders apply only to young offenders who have no previous convictions; the other three orders may be made in respect of those who do. In their substantive requirements, all four may impose similar obligations on the offender. Their details are explained in section 2.2. Each order is intended to include communication between the offender and the victim, and reparation for the victim. These are principal elements in the Government’s commitment to the principle of RJ (see further Crawford and Newburn, 2003). The YJB’s Annual Review for 2002/03 reported that it had set a target that YOTs use RJ approaches in 60% of all disposals. A second target, to ensure that 70% of all victims participating in RJ processes are satisfied was achieved in three regions across England and in Wales (Youth Justice Board, 2003a), and has for 2004 been raised to 75%.

1.3

The Youth Justice Board, the new remedies, and the role of mediation

Of the five new remedies, there is a precise statutory reference to VOM only in the case of the referral order. Section 8(2) of the Youth Justice and Criminal Evidence Act 1999 sets out the terms of the “programme of behaviour” (the young offender contract) to be agreed by the offender and the YOP. These terms may require “the offender to attend mediation sessions with any such victim or other person” (section 8(2)(b)). This “other person” is defined in section 8(2)(a) as any person (other than the victim) who appears to the panel to be “affected by the offence, or any of the offences, for which the offender was referred to the panel”. In the case of the four other orders, there is no precise statutory reference to VOM in the Crime and Disorder Act, but it figures by implication in two of the YJB’s key objectives. These are that the YJB must ensure that “young

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people face up to the consequences of their offending”, and, that young people are encouraged to make reparation to their victims. Although the YJB has no direct statutory responsibility to develop or support VOM, it does have a responsibility to develop good practice within youth justice services generally, and for this purpose, the YJB describes VOM as an “established model of restorative justice practice”. VOM is relevant to the achievement of these objectives in what the YJB describes as its “mediation first” approach to both communication and reparation (Youth Justice Board, 2001). “ 1) Communication: Mediation is an opportunity for the offender(s) and victim(s) to discuss what happened. It is an opportunity for victims to ask questions of the offender(s) that they might have, and to explain how they have been affected by the offence. This opportunity is often a very powerful experience for victims, and can lead to significant reductions in their fear of further victimisation, and return a sense of confidence and control. For some victims, mediation has been a key event in putting their experience behind them. However, victims who have not been profoundly affected by an offence also report that they have found it beneficial simply to meet the person responsible and see what they are really like. 2) Reparation/compensation: Mediation can be a useful forum for victims and offenders to discuss what, if anything, can be done to make up for the offence(s). This can be a difficult aspect of mediation, as the reality is that many offenders are not in a position to pay significant amounts of compensation to victims, and may be limited in what they can accomplish through physical reparation. However, victims often do not wish for monetary or practical reparation, the dialogue is enough. However, it is an important principle that should be considered in all cases.” Liaison with the victim is an absolute precondition to the reparative element of these four orders; but it must be stressed that liaison does not necessarily mean mediation. The essential element is consent4 and that may be effectively achieved otherwise than by face to face agreement. Thus, while VOM is, with the exception of referral orders, not expressly contained in the governing legislation, its endorsement by the YJB gives it status as what is often called “soft law”. That is to say that the YJB’s statements and 4

An important aspect of voluntariness in non-custodial settings has been underlined by the senior courts in England and Wales. A young person who accepts a reprimand (the precursor to a final warning; see section 2.2.1) must be fully advised of the consequences. If, in the circumstances of the offence, the offender is to be placed on the statutory sex offenders register, he must be specifically informed if the reprimand is to be lawful. Otherwise, the High Court ruled, it breaches Article 6 ECHR, as provided by the Human Rights Act 1998: R (on the application of U) v MPC [2003] 3 All E.R. 419.

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advice about the use of VOM, though not in law binding on those to whom they are addressed (YOTs), are highly persuasive.

1.4

Other Restorative Justice Modalities

As noted in section 1.1, RJ has over the past 15 years been widely used both for adult and young offenders. There continue to be RJ options for adult offenders, some of which are supported and are being evaluated by the Home Office (Shapland et al., 2004). A review commissioned by the Lord Chancellor’s Department recommended more explicit use of RJ (Lord Chancellor’s Department, 2001), and in 2003 the Home Office published a consultation document, Restorative Justice: the Government’s Strategy, which proposed a substantial expansion in its role (Home Office, 2003a)5. As also described above, other RJ modalities continue to be used as a response to juvenile offending. It is important to stress that the Government wishes RJ to be viewed as a philosophy to direct and inform whatever intervention is being planned, rather than simply as a particular type of intervention. The YJB has indicated that some form of restorative practice could be considered for almost all offences, though it may not be considered necessary in many. In every case where there is at least one identifiable victim then restorative practice should be considered. Restorative practice should not be restricted to consideration for only certain disposals (e.g., final warnings and reparation orders), but should be considered in all cases. As in the past, RJ modalities are used at different points in the youth justice system. Two well known and recently researched examples of diversion strategies are restorative conferencing and restorative cautioning The intention in restorative conferencing is to gather together everyone affected by an offence in some way, and then to invite them discuss the impact of the offence and what can be done to make amends. Restorative conferencing is probably the most structured form of restorative practice, often using a script. It has largely developed outside any statutory framework, and is restricted to a small number of initiatives. It can be compared to family group conferencing, but probably has more in common with VOM, which may be used as an alternative to a restorative conference. Family group conferencing (FGC) is one of the formats that may be used in connection with a referral order. Youth justice FGCs aim to bring together a young offender, their immediate and extended family/carers and any victim(s) of the offending, and victim supporters. The first part of an FGC is similar to mediation in that the offence is discussed openly, and victim(s) 5

An RJ response in a case of personal violence and robbery has recently received favourable comment from the Court of Appeal (Criminal Division). See R v Collins, The Times (14 April 2003), briefly commented upon in Smith (2004).

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can ask questions, and ask for reparation. However, FGCs also look at the causes for the offending and look to create an action plan that both provides reparation for the victim(s), and will assist the young person from reoffending. The action plan is initially drawn up in private planning time in which only the young person and their extended family group participate. Restorative cautioning explicitly takes place in a police setting and, in the model developed by Thames Valley Police, concludes with a formal caution (now a reprimand or final warning, depending on whether the young offender has been cautioned previously). It too depends on a script, involves the offender’s family, and may or may not involve a victim or, as many of the offences concern theft from stores, a proxy victim. In three years the Thames Valley initiative dealt with 2,000 restorative cautions in which the victim was present, and a further 12,000 in which the victims’ views were relayed to the offender (Hoyle et al., 2002)6. Following the enactment of the Criminal Justice Act 2003, which introduces some major changes in sentencing law, the Home Office promoted a similar scheme designed for adult offenders committing more serious offences against identifiable personal victims as a pilot project in July 2004 (Home Office, 2004).

2.

THE LEGAL FRAMEWORK

2.1

Criminal Proceedings Against Young Offenders

No criminal proceedings may be taken against any child in England and Wales who is under the age of 10. Until 1998 children aged between 10 and 14 could be guilty of a crime only where they knew that what they were doing was legally or morally seriously wrong. This rebuttable presumption was abolished by section 34 of the Crime and Disorder Act 1998. Young persons over 14 years of age have always been fully responsible in law for their acts. Children are “young persons” until they reach the age of 18. Thereafter they are treated as adults for the purposes of criminal proceedings. The traditional method for dealing with first (and often second time) young offenders has been the caution. Administered by the police, the caution required that the offender admits his guilt. On the assumption that the offender did not commit further offences, no further action was taken. As noted, a number of the schemes established in the 1980s were known as “caution plus”. This was because a condition of the caution was that the young offender was required to attend courses run by the local authority’s 6

See further Wilcox, Young and Hoyle (2004).

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social services department on such matters as anger management and victim awareness. The Crime and Disorder Act 1998 replaced cautioning with a new procedure for the reprimand and final warning of children and young persons, which is described below. There are a number of prosecuting authorities in England and Wales. The most important is the Crown Prosecution Service, a statutory body that reviews the case files that the police refer to it and decides whether or not to prosecute. That decision is based on two criteria: evidential sufficiency and the public interest. As to the latter, paragraph 6.9 of the Code of Practice for Crown Prosecutors provides that prosecutors “must consider the interests of a youth when deciding whether it is in the public interest to prosecute”. It adds that age alone is not a reason for not prosecuting, and that the seriousness of the offence and the youth’s past behaviour are important factors. Criminal proceedings against children and young persons normally take place in a youth court. This is a separate court from those in which adults are tried. They comprise not more than three justices (i.e., magistrates), who must include one man and one woman. They are drawn from the youth court panel, being “specially qualified for dealing with youth cases”. The courtroom itself may be housed in a building separate from the adult magistrates’ court, or in a particular room within a larger court building which also houses adult courts. In the absence of this special provision, the adult magistrates’ court may be used. Subject to some exceptions, children and young persons must be tried without a jury in the youth court. These arrangements are designed to eliminate some of the stigma of criminal proceedings from young offenders. In the same way, the phrase “finding of guilt” must be used instead of “conviction”, and “order made upon a finding of guilt” instead of “sentence”. For the same reason, procedure in the youth court is less formal than that in adult courts. Only the parties directly concerned will be present. Some members of the public (the press) may be authorised to attend. Proceedings may be reported in the press, but normally without identifying the young person. The court can impose other reporting restrictions. If prosecuted and found guilty, a young person may be the subject of one of the new non-custodial orders: referral orders, reparation orders, action plan orders and supervision orders. The Crime and Disorder Act 1998 also introduced a number of other orders aimed at curbing anti-social behaviour by young persons. The court can make an “anti-social behaviour order” (ASBO) on the application of the police or local authority. Unlike the other orders, the standard of proof for an ASBO is as in civil proceedings – the balance of probabilities – not, as in criminal proceedings, beyond a reasonable doubt. Nevertheless, breach of an

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ASBO attracts a criminal penalty. We should also note two orders directed at children under 10: “child safety orders”, which are made by the family proceedings court, and a “local child curfew scheme”, which may be made by a local authority in respect of children of a specified age in a specified area. Despite its name, a “care safety order” is as much a matter of monitoring the child’s behaviour as it is of caring for him or her. We should note, finally, that there are a number of options and restrictions concerning custodial sentences for young offenders. Under the Crime and Disorder Act 1998, offenders aged under 18 may be subject to a detention and training order. While additional considerations apply to those aged between 10-14, this order effectively combines two distinct penalties: the secure training order for the younger group, and detention in a Young Offenders Institution (YOI) for those aged 15-17 (young adult offenders). As we note below, there is a very limited degree of VOM in the case of youth custody.

2.2

Statutory Responses to Youth Offending

This section details the conditions that apply to each of the five new statutory responses to offending by young people: reprimands and final warnings, referral, reparation, action plan, and supervision orders.

2.2.1

Reprimands and final warnings

Introduced by sections 65 and 66 of the Crime and Disorder Act 1998, these replace the police caution. They are a tiered response to first time offending. A reprimand is intended for young offenders who have not previously been in trouble who have committed a minor offence; a final warning is for those who have. A final warning should be used where the second offence is not serious enough to warrant prosecution. Young offenders who receive a final warning from the police are immediately referred to a YOT for the purpose of fixing with the young person a rehabilitation or “change” programme. The YJB’s Guidance on final warnings provides in section 7.7 (Involvement with victims) that intervention programmes must contain either an element of direct reparation to the victim or community, or victim awareness input. The YOT’s first task is to conduct an assessment of the young person. This is designed to tackle the reasons for the offending and to prevent any future offending. This assessment will usually involve contacting the victim to assess whether VOM or some other form of reparation to the victim or the community is appropriate. As required by the YJB’s “mediation first”

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policy, the most common form of engagement is intended to be VOM. The YOT will appoint a facilitator to assist the victim and offender to reach an agreement. 2.2.2

Referral orders

“Referral orders”, introduced by section 1 of the Youth Justice and Criminal Evidence Act 1999, are mandatory for most young offenders pleading guilty at their first youth court appearance. These orders can last between 3 and 12 months; this is for the youth court to determine. The court must refer the young person to a Youth Offender Panel (YOP) established by the local Youth Offending Team. Its purpose is to agree a “programme of behaviour” with the young person, whose purpose is to prevent re-offending. A programme of behaviour identifies what the young person will do for the duration of the order, and will be formalised as a youth offender contract. In reaching agreement with the young person on its terms and conditions, the YOP is to be guided by the principles of RJ. Thus the programme may include reparative work for the victim or the community, or attendance at an anger management course. It may also, as section 8(2) of YJCE indicates, involve mediation. In essence, the contract should contain a reparative act and, if necessary, elements designed to prevent further offending. 2.2.3

Reparation orders

These and the two following orders may be used where the young person has previous convictions. Under sections 67 and 68 of the 1998 Act the court can impose a reparation order where it considers that the offending was not so serious as to require an action plan order, that is, does not warrant a community sentence. Typical examples of offences for which a reparation order would be suitable include minor offences of criminal damage or theft. A reparation order is designed to help young offenders understand the consequences of, and take responsibility for their offending. They require them to repair the harm caused by their offending either directly to the victim or indirectly to the community. Its duration must not exceed 24 hours in total. A potentially significant element in the planning of a reparation order is a meeting between the victim and the offender. Section 5 of the YJB’s Guidance Document on Reparation Orders contains extensive advice on “liaison with victims” (Home Office, 2000). The section commends early discussion with the victim about the possible content of the order. It also places the highest possible importance on the victim’s consent to direct reparation:

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“It cannot be over-emphasised that a victim must give willing and informed consent to receive any form of direct reparation from the offender. An order requiring reparation to be made to someone who does not wish to receive it could revictimise that person, making it even more difficult for them to recover from the crime of which they have been a victim. In particular, direct reparation to the victim should not be considered where there is any possibility that the victim might be put at risk by further contact with the offender” (paragraph 5.6). The Guidance Document also describes the various forms that reparation may take, singly or in combination (section 6.2). These include: a letter of apology, a meeting or restorative conference at which the nature and consequences of the offence are discussed and the offender apologises directly to the victim, or several hours per week of practical activity which benefits the victim or the community at large. This might include “cleaning graffiti or repairing criminal damage” (Home Office, 2000; paragraph 4.14). Where possible, the nature of the reparation should be linked to the offence or type of offence for which the reparation is to be made; in practice the activity may be chosen as much for its unpleasantness. 2.2.4

Action plan orders

These are designed for more serious cases than warrant a reparation order. They could include offences against the person causing injury, burglary, robbery, or substantial criminal damage. Where a young offender is convicted following a not guilty plea, section 69 permits the court to make an “action plan order” with a view to securing his rehabilitation, or preventing the commission of further offences. It comprises an intensive community based programme lasting three months, supervised by the YOT. The programme is specifically linked to the young person’s needs. The offender may be required to make reparation to “the community at large” or to “a victim of the offence or person otherwise affected by it” who consents to the reparation being made. The scope of the reparation that may be made is identical to that provided for reparation orders (YJB’s Guidance for Action Plan Orders, section 7.2). The advice on liaison with victims is also similar to that for reparation orders. It likewise emphasises the importance of “willing and informed consent”. To cases where reparation might be unsuitable, it adds those “where the victim appears to see it as an opportunity for revenge on the offender or insists upon unreasonable reparation” (section 6.6).

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David Miers and Michael Semenchuk - Chapter 2 Supervision orders

A “supervision order” is a yet more serious response than either reparation or action plan orders. It is intended for offenders with previous convictions, and for offences causing substantial harm to individuals, possibly inflicted with a weapon. A supervision order can last up to three years. The young person will be required to take part in activities agreed with a YOT, of which reparation is one possibility. The conditions governing direct reparation and liaison with the victim are the same as apply to the other orders.

3.

THE ORGANISATION AND DELIVERY OF VOM SERVICES

3.1

A voluntary sector activity

VOM is not a service that is provided by the agencies that are themselves responsible for local youth justice. There is no state agency in England and Wales appointed or contracted for the purpose of carrying out mediation work, which has always been an activity provided by the voluntary sector. Some of these voluntary bodies are national organisations (NACRO, the Children’s Society); others are local. There are also some commercial organisations. YOTs therefore contract with a local organisation to provide the mediation services they require. The absence of national public provision is a major reason why there are no centrally held comprehensive data showing the extent to which VOM is practised within youth justice throughout England and Wales. Some indication of its extent is provided by Mediation UK, the principal national voluntary organisation “dedicated to developing constructive means of resolving conflicts in communities”. It has 240 members (a number of these are organisations) representing some 600 individual mediators. Its website comments that “roughly 60% of the UK is served by a local mediation service”7. This coverage includes, as well as VOM in a youth justice setting, mediation in schools, between neighbours, and in the workplace. There are also sub-national mediation organisations in Scotland and Wales whose work Mediation UK supports. The following sections draw upon information supplied by Mediation UK and by three mediation organisations:

7

See Mediation UK homepage: http://www.mediationuk.org.uk/.

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• NACRO (National Association for the Care and Resettlement of Offenders), • Face to Face (York), • Mediation Service for Canterbury. While care must be taken in generalising from this evidence, the authors’ familiarity with the context suggests that the comments that follow are typical of the sector. In sections 3.3 and 3.4, however, we were able to make general comments only concerning respectively NACRO, and NACRO and Mediation UK.

3.2

Funding

Where it is undertaken within the statutory framework, VOM is funded from the budget allocated to the local YOT. Funding for YOTs (M£202 in 2002/03) comes primarily from the statutory agencies (M£155), supplemented by the YJB (M£46) and a variety of other sources (Youth Justice Board, 2003a). Mediation UK is funded by both public (such as the Department for Constitutional Affairs, the Home Office and the Department of Health) and private sources (such as Lloyds TSB Foundation and the Joseph Rowntree Charitable Trust). Local mediation services are typically funded by a mix of private (charitable) and public (local authority) money. There may also be short-term government funding tied to particular initiatives. They will all be expected to account quarterly and at the year end, but we have no information on their annual costs.

3.3

Administration and management

Being a national organisation, NACRO divides its administration between on-site and head office. It comprises a Chief Executive and seven Directorates with one director each. Mediation comes under the Crime Reduction Director, its Assistant Director and Head of Division. Operational management is on-site, strategic management is at head office. Of the three areas to which NACRO was providing mediation services, the largest had one manager, six project officers and 20 volunteers, one of whom is a trained mediator. The other two were much smaller, comprising a part time project officer each, and in one case, two sessional workers (both trained). Within NACRO each service is accountable to local partnership steering committees. These vary from Crime and Disorder partnership groups to Youth Justice Steering groups. All agencies are represented on these committees including the judiciary and NACRO has access to these groups. The Regional manager for services and project manager would sit on or

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address these committees when necessary. Each project undertakes annual information sessions with key agencies, including magistrates and induction of new agency staff. Referral sources are primarily the local Youth Offending Team or partner agencies in Crime and Disorder strategy groups.

3.4

Mediators: Recruitment, Training and Communication

The 600 individual members whose interests are represented by Mediation UK are probably a fair estimate of the total of mediators working in England and Wales. Many of them work for NACRO. It employs corporate recruitment processes that involve national and internal advertising, short listing to person specification, interviews, Criminal Records Bureau checks and references, and an induction programme. All of its project officers complete its mediation training course, and subsequent training is tailored to their individual needs. In one area serviced by NACRO, all mediators are graduates, with a majority having Masters degrees, for example in social work. Volunteers typically have experience in work with victims or offenders. This was also the case in its two other areas. Mediation UK offers comprehensive and well-respected national training and accreditation programmes for both experienced and novice mediators. These are detailed in a wide range of publications dealing with training and quality standards, evaluation, research, and specialist books for schools. Training programmes may involve statutory agencies such as the police and the probation service, or may be provided by a local mediation service. Completion of one of these programmes can lead to a National Open College Network qualification in Community Mediation Skills. Mediation UK itself will recognise a level of achievement it calls Competent Mediator Status. In 2003 the YJB introduced its own certification of effective youth justice practice (Youth Justice Board, 2003b). One of Mediation UK’s primary publications is its Practice Standards. This contains advice on the conduct of mediation, including its ethical dimension. The Restorative Justice Consortium has also produced a Statement of Restorative Justice Principles that addresses the same matters (March 2002). Mediation UK has been instrumental in developing the Community Legal Service (CLS) Quality Mark in Community Mediation, launched in January 2003. CLS is a part of the Legal Services Commission, itself an agency of the Department of Constitutional Affairs. The Quality Mark sets out the standards to which community mediation services are to operate. This includes the running of the service and the practice of the mediators within it.

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National communication between mediators is possible via Mediation UK’s magazine, Mediation Matters, and at its various local and national conferences. Though not as extensive, the Restorative Justice Consortium also disseminates information about RJ practice. NACRO’s new Service division will be organising its mediation service on a national level. Most of NACRO’s project officers also belong to national groups such as Mediation UK and the Restorative Justice Consortium.

3.5

Referrals, practice protocols and outcomes

The Criminal Statistics (England and Wales) show that the number of 1017 year olds sentenced for indictable offences in 2001 was 49,100. The cautioning rate for this age group was 54% of those sentenced or cautioned. There were 19,200 referral orders, now the most common single disposal for juveniles, followed by supervision orders. Action plan and reparation orders account for 8% of disposals (Home Office (2003b; chapter 4). There are no official figures recording the number of VOM referrals nationally, or of their outcomes. We can provide only some data from NACRO and Face to Face (York). Within the three NACRO services to which we had access, the annual referral averages in recent years, together with the number of mediated cases (in brackets) were: 435 (37); 40 (5); and 404 (of which 118 involved victim contact) (10). Within Face to Face (York), figures for 2002/03 show 137 referrals, of which 119 were completed. Of these, 95 were “completed through mediation”; in 20 cases the offender discontinued. However, of that 95, 47 were cases of indirect mediation and direct mediation was completed in nine cases. The other 39 completed cases involved other victim-related outcomes, such as reparation (14) or victim awareness (14). These proportions are similar to those found by Miers et al. (2001). Between particular VOM services, workloads will obviously vary according to their size, the number of referrals and so on. Of the two areas for which NACRO had figures, in one, each project worker had 60 cases, and in the other, seven, at any one time. The trigger criteria for referrals to mediation are, firstly, that the young person is subject to one of the court orders described earlier, or has been the subject of a reprimand or final warning by the police. Thereafter, the question whether VOM is to be used will depend on assessment made by the responsible authority, and the consent of the victim. In 2004 the YJB issued new best practice guidelines which detail how practitioners should approach any RJ intervention, including (section 3b) direct (face to face) restorative processes8. 8

See http://www.homeoffice.gov.uk/justice/victims/restorative/index.html.

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First, mediators assess both the victim’s and the offender’s suitability for face to face mediation taking into account any risk factors for both clients. Second, they arrange the mediation session and conduct preparatory interviews with both parties. Finally, they facilitate the mediation session and thereafter debrief each party with follow up sessions. Where a reparative task has been set for the offender, the mediator has to arrange and supervise its completion. In one local organisation they are responsible also for providing assessment reports to referral panels. In some places the coordination of the mediation sessions is handled by persons other than the mediators. The Guidelines emphasise the importance of achieving both clarity and realism in the expectations that the parties will have of the VOM event. Preparation should include a risk assessment, to ensure the security of the parties during the initial and subsequent meetings. Particular stress is placed on the importance of sensitivity when assessing victims’ needs. Victims should never be pressurised into taking part in any restorative process, and should be told the whole truth about the situation, and should be given time to think about their decisions. The key job for the mediator is to prepare all the parties so that victims and offenders can make their own informed choices about how they wish to proceed. The mediators have the responsibility of deciding whether, should the victim and the offender wish to meet face to face, such direct contact would be appropriate, and safe. Meetings are to be held at neutral venues, not at the offices of the project or related agencies. The venue will be somewhere convenient and safe for all parties, normally community centres or schools. This is standard practice as commended by the various guidelines produced by Mediation UK and the Restorative Justice Consortium. There will usually be only one mediator present at any meeting. The good practice guidelines produced by the YJB, Mediation UK and the Restorative Justice Consortium recommend that VOM providers both follow up the individuals whom they have engaged in VOM, and undertake their own evaluation of their programmes. In the NACRO services debriefing sessions are built into the process. In one area both parties are collected by a separate worker and taken home the same way thus allowing for an instant debrief. Following this each party is subsequently visited to review the process.

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4.

VOM IN ENGLAND AND WALES: A BRIEF EVALUATION

4.1

Research findings

41

Within England and Wales, it is, therefore, theoretically possible for VOM to figure at all stages within youth justice, as: • an element in diversion, • an incident of a variety of court ordered disposals whose primary goal is the reparation of the victim, • an element in custodial sentencing for young offenders. In 2002 the YJB conducted research into the use of RJ in 32 young offender institutions (YOI) and the 155 YOTs (Curry et al., 2004). Altogether, 136 (88%) responses were received, including 101 YOTs (75% of the YOTS). The following summarises the findings: a) 103 (75%) of all respondents indicated that their YOIs or YOTs ran some RJ programmes; 32 (23.5%) indicated that they did not run any. b) 92 (68%) of all respondents claimed that they operated VOM. Some YOTs were undertaking mediation with surrogate victims. When asked about mediation, respondents often answered in terms of conferences, failing to differentiate between VOM and family group conferences. c) YOTs have been undertaking most work in connection with VOM. Of all respondents, 98 (72%) claimed to operate direct VOM. d) 99 (73%) of all respondents claimed to operate indirect VOM. e) 70 (52%) of all respondents said that they were undertaking other RJ initiatives such as video apologies, community placements, retail-crime initiatives and various community payback schemes. So far as youth custody is concerned, the research found very low levels of both RJ practice and VOM within the secure estate; such work is more likely to occur in adult prisons. The YJB research was not constructed to follow up the responses from YOTs who indicated that they operated direct or indirect VOM. Thus, although there were many positive replies, it is not possible to say any more about the incidence, structure or organisation of this provision. The most extensive recent research has been conducted in connection with the 11 YOTs which piloted referral orders during 2000 (Newburn et al., 2002; Newburn and Crawford, 2002; Crawford and Newburn, 2003; see also Holdaway et al., 2001). This reveals a number of problems, for example, concerning the recruitment and training of the community panel members of the YOTs (not mediators), the attitude of the court personnel to referral orders, the operation of the YOPs, and the content, duration and

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implementation of the young offender contracts. These problems do not impinge directly on mediation. The findings on victim involvement do, however, raise some questions concerning the potential for its use in referral orders. Taking account of the research on the use of RJ within the youth justice, the following summarises the main points affecting the potential for mediation shown by these various evaluations. 1. Previous research in England and Wales shows a wide variation in the extent of victim participation, both in the reparative schemes of the 1980s and the more recent, and current, RJ initiatives (Miers et al., 2001). Newburn et al. (2002) found very low rates of victim attendance in youth offender panels constituted for the negotiation of referral order contracts where there was an identifiable victim (13%). Just over three-quarters wished to participate. The great majority of them were very positive about the idea of participation. Nearly all (95%) understood what was going on in the panel meeting, and 70% felt that the panel had taken their views into account. By contrast, just less than half (48%) felt that the young offender had expressed remorse, or that the panel had allowed the harm to be repaired. 2. For the purpose of referral orders, the young person in all cases met the community panel members (not mediators) appointed to their YOP. By and large the young persons (and their families) were positive about the process. As very few victims attended the panels, very few of Newburn et al.’s offender sample actually attended a meeting at which the victim was present. Where they did, most said that it was right for the victim to be there. Of those who did not have a victim present, the majority said that they would not have wanted them there. 3. Where VOM comprises an element of the custodial treatment of offenders, an issue arises concerning the reality of the voluntariness of the offender’s participation. Research evidence shows that in noncustodial contexts, young offenders may perceive themselves to be under pressure to agree to mediation (Hoyle et al., 2002; Miers et al., 2001). Within a custodial setting, that pressure, actual or perceived, may have a greater role to play in the offender’s decision. Equally, if the outcome of the mediation will have no impact on the sentence, the offender’s consent might be genuinely voluntary. 4. The question also arises, what benefit offenders might calculate to follow from their participation. Where they are actuated by a desire to accelerate decisions in their favour (for example, release on licence), their agreement to engage in VOM can be construed in entirely instrumental terms, rather than as a genuine willingness to help the victim. Miers et al. (2001) found that in one scheme the offender’s indication of a

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willingness to engage in VOM was included in the pre-sentence report as a means of attracting a lighter sentence. It is possible that this sample contained fewer offenders with a genuine desire to address their offending behaviour. By contrast, a scheme in which offenders in custody were only made aware of VOM possibilities after sentence showed a statistically significant reduction in re-offending. This was so after discounting for the possibility that they were a self-selecting group. 5. A second issue which affects offenders in custody concerns their geographic location vis a vis their victims (Curry et al., 2004). The location of prisons and of Young Offenders Institutions and the rules and practices concerning the allocation of offenders to particular institutions together mean that the victim may well be some distance away. Victims may therefore be reluctant to engage in any interaction other then indirect mediation (travel costs, lost work time, child care arrangements, etc). 6. It may be argued that the use of a surrogate victim may not be as effective as a direct meeting between an offender and his/her victim. However, in the cases where the victim is not willing, or it is not possible to facilitate direct mediation, a surrogate victim could be useful in representing the feelings and views of victims (Hill, 2002). The research on the pilot referral orders and the secure estate show, first, that VOM is little used in those contexts. Secondly, in the case of referral orders, it shows that unless there is a much higher degree of victim engagement, then its potential for greater use will be limited. These observations stand in contrast with the more substantial finding in the secure estate research, that of the total of 155 YOTs, more than half claim to be providing VOM services. It is also possible that there are other mediation initiatives operating outside the statutory context. At present however, it is not possible to say exactly what is the incidence of VOM within youth justice, or what it entails9.

4.2

Mediation services

As VOM has developed largely within the private/voluntary/charitable arena it has been able to establish itself with little bureaucratic interference. There is a healthy plurality of practice that is sensitive to local needs. There is also an active national debate about establishing good practice guidelines to be used by both large and small service providers. The guidelines that Mediation UK and the Restorative Justice Consortium have developed 9

Since this text was written, the YJB has published a report on the implementation and impact of 46 RJ projects that it funded between April 2000 and October 2001 (Wilcox and Hoyle, 2004). A number of the themes identified in this chapter are to be seen in the findings of this report.

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provide a helpful, subsidised resource for the smaller providers, without being overly prescriptive. But the lack of centralisation in the management and development of VOM means that the collection of comprehensive and accurate data relating to its incidence, implementation and effectiveness is currently impossible. This state of affairs makes it very difficult to evaluate the effectiveness (or ineffectiveness) of both individual projects and VOM on a broad scale. VOM may be uniform in the sense that service providers frequently aspire to the same objectives, but the practice is often at variance with the definition employed. For example, some schemes that claim to carry out VOM are in practice carrying out victim awareness programmes. These may fulfill a useful role, but they do not conform to any of the accepted understandings of mediation, as they typically lack even any indirect victimoffender engagement. This lack of conformity between definition and practice may, in part, be due to the fragmented and largely uncoordinated manner in which VOM has developed in England and Wales. A significant feature is the fragility of funding that supports VOM. It is practised by organisations that are frequently funded from a variety of sources, in part from charity. As such, resources may be variable and uncertain, making the organisation vulnerable to short (and longer term) reductions in staffing and service provision. It may be noted that these characteristics substantially reflect those that Miers et al. (2001) found in their evaluation of seven locally-funded RJ schemes in England and Wales. A potential danger arises from the partial commercialisation of VOM provision in England and Wales. This danger is that the private companies offering VOM services may put profit before the interests of their clients. It is unlikely that the Home Office would wish to run VOM as a public sector activity, but there is scope here for state licensing (perhaps by the YJB) where VOM providers can demonstrate that they meet agreed national standards (for example, are already accredited by Mediation UK). The increasing pressure for cost-effectiveness in all sectors means that NGOs are obliged to market their services as if they were commercial organisations. There continue to be concerns over the issue of “voluntariness”, central to all forms of RJ. This concern applies equally in custodial and noncustodial settings. In the custodial setting, for example, voluntariness as experienced by those serving custodial sentences is an especially sensitive matter. In the first approach to prisoners considered to be potentially suitable for engaging in VOM, it is important that it is made very clear that there is no material gain or privilege in treatment to be achieved by participation. Participants must be fully aware of what the “real” advantages of participation are. As noted, research by Miers et al. (2001) showed that adult prisoners who participated in a restorative programme under circumstances

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in which their participation was indeed entirely voluntary, did demonstrate reduced rates of re-offending. This was an isolated finding. In general, evidence concerning the impact of VOM on re-offending in England and Wales is, like that dealing with RJ more broadly, ambiguous. There is good evidence that victims and offenders respond positively to the process, but this is not necessarily translated into reductions in re-offending. The Home Office is currently funding substantial long-term research that uses random trials, the initial results of which were published in 2004 (Shapland et al., 2004). These results are confined to an evaluation of the start-up procedures for the three Home Office schemes, which commenced in mid 2001. This concluded that “the process of setting up the schemes has taken more time than expected and some schemes did not reach what they would see as their normal, routine working until summer 2002” (Shapland et al., 2004: iv). For particular individuals, there are many VOM encounters that have been shown to have a beneficial impact. Whether such impact is generalisable over larger populations is a question that the Home Office research may answer when the final evaluations are completed in 2006.

REFERENCES Crawford, A., and Newburn, T., 2003, Youth Offending and Restorative Justice, Willan Publishing, Cullompton, Devon. Curry, D., Knight, V., Owens-Rawle, D., Patel, S., Semenchuk, M., and Williams, B., 2004, Restorative Justice in Youth Custody and the Secure Estate, Youth Justice Board, London. Davis, G., Boucherat, J., and Watson, D., 1987, A preliminary study of victim offender mediation and reparation schemes in England and Wales, Research and Planning Unit, Paper 42, Home Office, London. Davis, G., Boucherat, J., and Watson, D., 1988, Reparation in the service of diversion: the subordination of a good idea, Howard Journal, 27:127-62. Hill, R., 2002, Restorative justice and the absent victim: new data from the Thames Valley, International Review of Victimology, 9:273-288. Holdaway, S., Davidson, N., and Dignan, J., 2001, New Strategies to Address Youth Offending: the National Evaluation of the Pilot Youth Offending Teams, Research and Statistics Directorate, Occasional Paper 69, Home Office, London Home Office, 1997, No More Excuses-A New Approach to Tackling Youth Crime in England and Wales, Cm 3809, The Stationery Office, London. Home Office, 2000, The Crime and Disorder Act. Guidance Document: Reparation Order; www.homeoffice.gov.uk/cdact/. Home Office, 2003a, Restorative Justice: the Government’s strategy (Communication Directorate); http://www.homeoffice.gov.uk/justice/victims/restorative/index.html Home Office, 2003b, Criminal Statistics: England and Wales 2002, Cm 6054; www.officialdocuments.co.uk. Home Office, 2004, Conditional Cautioning: Code of Practice (Criminal Justice Act 2003, sections 22-27), Criminal Procedure and Evidence Unit, Home Office, London.

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Hoyle, C., Young, R., and Hill, R., 2002, Proceed with Caution: an evaluation of the Thames Valley Police initiative in restorative cautioning, g Joseph Rowntree Foundation, London. Lord Chancellor’s Department, 2001, The Review of the Criminal Justice System; www.criminal-courts-review.org.uk. Marshall, T., 1984, Reparation, Conciliation and Mediation, Research and Planning Unit, Paper 27, Home Office, London. Marshall, T., 1991, Victim-offender mediation, Home Office Research Bulletin, 30:9-15. Marshall, T., 1996, The evolution of restorative justice in Britain, European Journal on Criminal Policy and Research, 4:21-43. Marshall, T., 1999, Restorative Justice: An Overview, Home Office, London. Marshall, T., and Walpole, M., 1985, Bringing people together: mediation and reparation projects in Great Britain, Research and Planning Unit, Paper 33, Home Office, London. Miers, D., 2001, An International Review of Restorative Justice, Crime Reduction Research Series, paper 10, Home Office, London. Miers, D., Maguire, M., Goldie, S., Sharpe, K., Hale, C., Netten, A., Doolin, K., Uglow, S., Enterkin, J., and Newburn, T., 2001, An Exploratory Evaluation of Restorative Justice Schemes, Crime Reduction Research Series, paper 9, Home Office, London. Miers, D., 2004, Situating and researching restorative justice in Great Britain, Punishment and Society, 6:23-46. Newburn, T., Crawford, A., Earle, R. Goldie, S., Hale, C., Masters, G., Netten, A., Saunders, R., Sharpe, K., and Uglow, S., 2002, The Introduction of Referral Orders into the Youth Justice System, Research Study 242, Home Office, London. Newburn, T., and Crawford, A., 2002, Recent developments in restorative justice for young people in England and Wales, British Journal of Criminology, 42:476-495. Shapland, J., Atkinson, A., Colledge, E., Dignan, J., Howes, M., Johnstone, J., Pennant, R., Robinson, G., and Sorsby, A., 2004, Implementing Restorative Justice Schemes (Crime Reduction Programme): A Report on the First Year, Home Office Online Report 32/04; http//www.homeoffice.gov.uk/rds/. Smith, R., 2004, The latest in restorative justice, New Law Journal, 154:1335. Umbreit, M., and Roberts, A., 1996, Mediation of Criminal Conflict in England: An Assessment of Services in Coventry and Leeds, Centre for Restorative Justice and Mediation, University of Minnesota, St. Paul. Wilcox, A., and Hoyle, C., 2004, Restorative Justice Projects: the National Evaluation of the Youth Justice Board’s Restorative Justice Projects, Youth Justice Board, London. Wilcox, A., Young, R., and Hoyle, C., 2004, Two Year Sanctioning Study: a Comparison of Restorative and Traditional Cautions, Home Office Online Report 57/04; http//www.homeoffice.gov.uk/rds/. Youth Justice Board, 2001, Restorative Justice Resources: Established Models of RJ practice: Victim-Offender Mediation; http://www.youth-justice-board.gov.uk/. Youth Justice Board, 2003a, Gaining Ground in the Communityy (Annual Review), Youth Justice Board, London. Youth Justice Board, 2003b, Restorative Justice: Professional Certificate in Effective Practice (youth justice), Youth Justice Board, London. Youth Justice Board, 2004, Best Practice Guidance for Restorative Practitioners; http//www.homeoffice.gov.uk/justice/victims/restorative/index.html.

Chapter 3 VICTIM-OFFENDER MEDIATION WITH JUVENILE OFFENDERS IN IRELAND Kieran O’Dwyer -

1.

1

INTRODUCTION

Victim-offender mediation (hereafter VOM) is not yet a significant feature of the Irish criminal justice system for either adult or juvenile cases. Until recent years, victims tended to be kept largely on the margins of the criminal justice system, with little direct involvement in proceedings apart from giving testament as witnesses when required. Various reforms have taken place aimed at improving the position of victims but these have not included generalised provision of opportunities for mediation. As at mid-2004, VOM based on a formal structure of referrals from one agency to another was confined to one local programme in Dublin. It deals predominantly with adult cases referred from court at the pre-sentence stage. Two other programmes, one in Dublin and one in a rural area, can be said to have a mediation element. They involve court referrals to a community reparation panel. They deal mainly with adult cases, often without victims, but a small number of cases have involved juveniles and victims. Mediation between juvenile offenders and their victims is much more likely to occur under provisions in the Children Act 2001. These allow for Restorative Justice (RJ) interventions by the national police and probation services.

1

While this chapter benefited from comments by representatives of the various services described, the views expressed are those of the author and do not necessarily reflect those of the services consulted.

47 A. Mestitz and S. Ghetti (eds.), Victim-Offender Mediation with Youth Offenders in Europe, 47-73. © 2005 Springer. Printed in the Netherlands.

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At the time of writing, most cases involving such mediation have taken place within the framework of the Garda Juvenile Diversion Programme. This is operated by the police force2 and is designed to divert young offenders3 away from criminal activity and out of the criminal justice system. Offenders who are under age 18 and are admitted to the programme can be dealt with by means of police caution, formal or informal. The mediation element arises from the provision in the Children Act for the invitation of victims to formal cautions. Where the victim attends, offenders have the opportunity to apologise direct to the victim and, where appropriate, make financial or other reparation. A family conference can also be arranged with a view to addressing the child’s behaviour and its impact, with similar opportunities for victim participation and outcomes. Mediation can also arise in family conferences organised by the Probation and Welfare Service. These are provided for under the Children Act but the relevant provisions were only given legal effect on 29 July 2004 and no conferences had taken place at the time of writing. The conferences relate to offenders before the court who are aged under 184 and accept responsibility for the offence. Victims must be invited to attend, unless their attendance would not be in the best interests of the conference. These services and programmes are described in more detail in the following paragraphs. The main focus is on the Garda programme. This reflects the greater practical experience of mediation with juvenile offenders under that programme, facilitated by the earlier introduction into law of the relevant legal provisions (1 May 2002 as compared with 29 July 2004 for the probation programme) and operation of a pilot police programme from 1999. Furthermore many of the provisions in the Children Act governing the probation “family conferencing” option are based on the police “conferencing” option. VOM for juveniles is a small dimension of the other programmes mentioned. The Garda programme is therefore dealt with first and then the other programmes are presented under similar headings. The Garda programme is national in coverage and restorative interventions take place in all 25 Garda Divisions. It is possible that VOM will become a significant feature in future, with the police authorities developing the programme in a variety of ways. The emphasis has been on capacity-building, persuasion and support rather than compulsion or 2

Ireland has a single, national police force - the Garda Síochána or Garda for short. The term “offenders” may not be strictly correct from a legal point of view; the children involved have accepted responsibility for their criminal behaviour but have not been found guilty in court of an offence; nevertheless the term is used throughout this chapter for convenience. 4 The lower age limit is in theory the age of criminal responsibility, currently 7 years, but in practice, children below the age of 14 rarely appear in court charged with a criminal offence. 3

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imposition of targets. While initial numbers were modest – 147 cases in the 20 months from commencement of the statutory provisions to end-December 2003 – the trend has been upwards, with the average in the first seven months of 2004 double that of the earlier period. The final potential is difficult to estimate since not all formal cautions involve suitable victims or offenders, but if all formal cautions were to be processed restoratively, this could entail up to 1,500 sessions per annum. Restorative justice interventions on this scale would raise awareness and stimulate interest in other arenas. The Garda model is one common to restorative cautioning by police and family conferencing in other countries. Key values include offender responsibility and accountability, victim and offender family involvement and empowerment, offender reintegrative shaming, harm repair, inclusiveness, forgiveness and support. A critical difference between the Garda model and other models is the extent to which offender participation is voluntary and the absence of any automatic sanction if an offender fails to honour any agreement made at a restorative caution or conference. Other distinguishing features include the role of police officers in selecting, organising and facilitating restorative events.

2.

LEGISLATION AND LEGAL PROVISIONS

This section begins with a description of current legislation and is followed by comments on the relative strengths and weaknesses of the provisions.

2.1

Current legislation

Apart from the Children Act 2001, there is no legislation on the statute books that provides specifically for VOM, for either juveniles or adults, and there is no draft legislation before Parliament. Judges have discretion to adjourn court cases to allow mediation or other restorative interventions under existing general powers. Mediation in juvenile cases is not included in any formal way in the ministerial responsibilities of the Department of Justice, Equality and Law Reform or any other Government ministry. The Department of Justice, Equality and Law Reform is responsible for policy relating to the police, the probation service and the criminal justice system in general. It therefore has an overall interest in RJ and mediation. The Minister for Justice, Equality and Law Reform is responsible, for example, for the appointment of a

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statutory committee to monitor the effectiveness of the Juvenile Diversion Programme and must lay a copy of its annual report before Parliament. A Minister of State at the Department of Justice, Equality and Law Reform has responsibility for children and implementation of the Children Act 2001. The Minister of State is also formally attached to the Department of Education and Science and the Department of Health and Children. The National Children’s Office, a cross-ministry body established to co-ordinate the implementation of the Government’s “National Children’s Strategy”, is charged with co-ordinating the implementation of the 2001 Act. The juvenile justice system differs from the adult juvenile system in several key respects. Children up to their eighteenth birthday are processed separately from adults and, as mentioned, can benefit from diversion by means of police caution, an option that is not available to adult offenders. The age of criminal responsibility is seven, although there is a rebuttable presumption that a child who is under fourteen years of age lacks capacity to commit an offence. The Children Act 2001 provides for an increase in the age of criminal responsibility to twelve but the relevant section of the Act (section 52) has not been introduced into law as yet. Only a small number of children aged under twelve are prosecuted and they are often associated with multiple offences. The Children Act 2001 gives greater prominence and protection to the Juvenile Diversion Programme. Any child who commits an offence and accepts responsibility for it is entitled to be considered for inclusion in the programme, “unless the interests of society otherwise require” (section 18). The Act allows considerable flexibility to the Programme director in admitting offenders into the programme and deciding on the type of caution and level of supervision that should apply. In considering admission, the views of victims are taken into account but their consent is not a prerequisite. Formal cautions are generally reserved for more serious or repeat offending, are usually administered in a police station and typically involve supervision by a juvenile liaison officer for a period of 12 months. Informal cautions are generally used for less serious, first offences, are administered in the offender’s home and only involve supervision in exceptional circumstances and then only for six months. As mentioned, the Act provides for two RJ possibilities within the Diversion Programme. Section 26 provides for the invitation of a victim to a formal caution. Where the victim participates, a discussion takes place about the child’s criminal behaviour and the child may be invited to make an apology direct to the victim and, where appropriate, make financial or other reparation. This type of caution has come to be known as a “restorative caution”. It is relevant to point out that the Act stipulates that a formal caution has to be given by a memberr of the police force not below the rank

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of Inspector (as was the case prior to enactment of the legislation) or “a juvenile liaison officer who has been trained in mediation skills” (new provision, emphasis added) (section (25(2)). Sections 29 42 provide for a family conference, referred to in the Act simply as a “conference” and commonly referred to as a “restorative conference” or “Garda conference”. A restorative conference can take place in respect of any child under supervision. The practical effect of this is that the conference is limited to cases where a formal caution has been given, since supervision is allowed for informal cautions only in exceptional cases. Sections 30 and 31 require the director to consider a recommendation to hold a conference on the basis of a written report from the juvenile liaison officer. This effectively means that some time must elapse between the caution and the conference. The conference seeks to examine the problem of the child’s criminal behaviour in a controlled, structured environment outside the judicial system. It is designed to make offenders more aware of their responsibilities to their family, the victim and society in general. The purpose is to understand the actions of the child, to appreciate the consequences of offending behaviour for the victim, to review behaviour since any supervision began, and to discuss how further offending behaviour can be prevented. The interest from a VOM perspective is that the victim may be invited to attend the conference and the conference will consider the harm caused to the victim and how that harm can be repaired. As with the restorative caution, this resembles mediation in many ways and the Act stipulates two functions of the conference in the following terms: • “as appropriate and in accordance with this Part (of the Act) to mediate between the child and the victim” (section 29(b), emphasis added), and • “to uphold the concerns of the victim and have due regard to his or her interests” (section 29(d)). The Act does not define “mediate” or “mediation skills” and it is assumed that they have meanings of everyday usage and that training deemed appropriate by the police meets the legal requirement. Interestingly, the term “mediation” is not used in connection with the conference. Instead a “facilitator” is appointed (section 31(4)(a)) and the facilitator can be either the juvenile liaison officer or another member of the police force (section 31(4)(b)). This means that if a juvenile liaison officer administers a formal caution where the victim attends, the officer has to have been trained in mediation skills, but no such legal requirement applies if the officer runs a conference. In practice, it is always the case that juvenile liaison officers organise and run the restorative cautions and conferences, even though other officers are legally entitled to do so. This gives de facto recognition to the level of skills required.

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The initiative for convening a restorative conference rests, subject to decision by the director, with the juvenile liaison officer responsible for supervision. A conference requires the agreement and attendance of the parents of the juvenile. Other community members may be invited, including other immediate family and relatives, the victim, a person accompanying the victim, health board worker, probation officer and any other relevant person such as teacher, clergy or youth worker. The presence of the victim is seen as most influential in making offenders recognise their wrongdoing and responsibilities, but the conference can proceed without the victim. A key objective of the conference is to agree an action plan for the child. Under section 39 of the Act, the action plan may include, among many other things, • an apology, whether orally or in writing or both, by the child to any victim (section 39(3)(a)) and • financial or other reparation to any victim (section 39 (3)(b)). Any action plan is required to be agreed unanimously by those present, unless the facilitator considers any disagreement unreasonable. In practice, it has not been difficult to achieve unanimity. When the action plan and its duration have been agreed, the facilitator is required to commit it to writing in language that is clear to the child and the agreement must be signed by the child, chairperson and one other person. Usually, agreements are signed by the child, one or both parents, the facilitator and any victim present. The signing of the agreement is symbolic and it is emphasised to participants that it is voluntary and freely entered into and is not enforceable in civil or criminal law. The conference must reconvene within six months to discuss the implementation of any action plan. It may reconvene earlier if the child fails to comply with the terms of the plan and can examine reasons for the noncompliance and encourage the child to comply with the plan or an amended version. The juvenile liaison officer can also encourage compliance as part of the supervision of the child. The local police manager can also remind participants, if necessary, of any commitments they freely entered into. But the police have no formal role in pursuing implementation and there is no formal sanction for non-compliance. Information, statements or admissions disclosed or made during the conference are privileged. Any report of a conference is also inadmissible in a civil or criminal court, as is any acceptance by the child of responsibility for the criminal behaviour, the behaviour itself or indeed the child’s involvement in the Juvenile Diversion Programme5. It is furthermore a

5

A draft amendment before Parliament proposes the removal of this protection where a court is considering the sentence to be imposed in respect of an offence committed by a child

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specific offence under section 32(7) to disclose confidential information obtained while participating at a conference (but not a caution). These provisions protect the interests of both offender and victim, as well as other participants. They also facilitate the open and frank discussion necessary for reconciliation, reparation and reintegration. This section of the chapter concerns legal provisions in the Children Act 2001 relating to mediation possibilities under the Garda programme of RJ interventions. Before going on to reflect on these provisions, it is worth mentioning that sections 78 to 87 of the Act provide for organisation by the Probation and Welfare Service of family conferences for juvenile offenders before the courts. The Act invokes several of the provisions governing the Garda programme, with only minor amendment, in relation to the probation service’s RJ programme. Some of the comments that follow relate therefore to both programmes.

2.2

Evaluating current legislation: benefits and drawbacks

The most significant benefit of the current legislation is that provision is made for VOM for juveniles as a mainstream option in responding to juvenile offending. This is a major development in the criminal justice system, where mediation to date could best be described as a fringe activity, confined largely to adult offenders and relying on the commitment of a small number of mediation advocates and the benevolence of a smaller number of judges. Within the Garda programme, restorative interventions involving mediation are largely at the discretion of juvenile liaison officers. This provides useful flexibility in case selection. RJ is resource-intensive and the flexibility allows attention to be focused where the need is greatest. The law also gives flexibility in other areas. It would appear that restorative cautions, for example, could be as ambitious as restorative conferences in terms of action plans. The Act merely provides for the possibility of victim attendance, discussion of the child’s behaviour, apology and reparation. It does not limit options. Another illustration of flexibility concerns supervision by the juvenile liaison officer of the child offender. Supervision is not defined, leaving the liaison officer free to vary the intensity and nature of contact according to the perceived needs of the offender, subject to Garda policy in the matter.

after the child’s admission to the Diversion Programme (section 31 of Criminal Justice Bill 2004).

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A potential drawback of the discretion allowed in the Act is the risk that only a small number of restorative events will take place. The percentage of diversion cases processed restoratively has been low to date and not all involved victims. However, there is an expectation that numbers will grow, with a public commitment to RJ for juveniles by the Garda Commissioner (chief of police), an increase in personnel and resources devoted to the Diversion Programme, and a host of other developments such as enhanced training, clarification of procedures and energetic leadership. The Children Act requires the establishment of a high-level committee to monitor the effectiveness of the Juvenile Diversion Programme (including the restorative elements) and its annual reports will be made available for parliamentary and public scrutiny. This external accountability will help ensure growth in the number of restorative and mediation cases. Quite apart from that, it can also be expected that the emergence of beneficial effects from RJ will itself build a momentum for further change and that success will breed success. The voluntary nature of offender participation is seen as a key strength of the legal provisions. Voluntary offender participation is generally presented as a core principle of RJ if the intervention is not to be experienced as punishment. It also increases the chances of a successful outcome for both offender and victim. An agreement is more likely as is compliance with its terms. The position of the young offender in the Garda RJ programme may be unique. Once a decision to divert from prosecution is taken and the offender continues to meet the requirements of the diversion programme, diversion is the only path available. An offender is free not to participate in the restorative event and, should one be organised, is free to leave at any time. If a young person fails to participate in a restorative caution, the fallback position is the traditional, non-restorative formal caution. As regards a restorative conference, if an offender fails to participate or reneges on any agreement reached, the only sanction is to reconvene the group and explore the reasons for non-compliance. As before, the offender is free not to attend the reconvened meeting. This may look unsatisfactory at first, but if the offender does not re-offend, the story has a relatively happy ending anyway. The victim and the offender’s family are arguably no worse off than before, apart from possibly having expectations raised or anxieties created unnecessarily. (In fact the juvenile liaison officers would not take this risk unless the offender showed signs of remorse to begin with.) If re-offending occurs, another opportunity presents itself to deal with the offender. Although it may be at the price of a second victimisation, this result of a restorative event is no different from that of a non-restorative caution. The implication is that the option of diversion should be assessed on its own merits, not on the assumption that a restorative element (caution or conference) will be added.

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The fact that such RJ provisions as exist are embedded in legislation dealing with offenders risks them being perceived or employed in the interests of offenders at the expense of, or without due consideration for, victims. Some see a danger of victims being invited to participate as a better way to engage with offenders, rather than victims being treated as parties with their own needs and equal rights. The professional role and experience of juvenile liaison officers has been primarily offender-focused with relatively rare opportunities to work with victims. Victim awareness training has now become a standard part of liaison officer training and working with victims a more important element of their work. Probation officers, for their part, while they work mainly with offenders, have greater experience of working with victims (e.g., through preparation of victim reports for court).

3.

ORGANISATIONAL STRUCTURE

Garda restorative cautioning and conferencing is funded from within the general police budget, apart from a development fund provided by the Department of Justice, Equality and Law Reform. The restorative options are available throughout the country. Because restorative activities are just one part of the work of the ninety or so Garda juvenile liaison officers and because mediation is not always a feature of the interventions, it is not possible to provide a costing for the activities. Police restorative events take place in a variety of venues. In the period from 1 May 2002 to 31 December 2003, just over a third of cases were held in Garda stations with another third in community halls, hotels or youth centres. Since a restorative caution is a formal caution to which the victim is invited and under the Children Act, formal cautions must be administered in a police station “or, in exceptional circumstances, elsewhere” (section 25(2)), it would appear that restorative interventions are considered in many instances “exceptional circumstances”. Under section 33 of the Act, a restorative conference can be held in any venue decided by the facilitator after discussion with the intended participants. The Garda policy guidelines stress the value of holding events in neutral venues where participants can feel at ease and proceedings will not be interrupted. The RJ programme is managed by the National Juvenile Diversion Programme Office in Dublin. The director is a police officer of Superintendent rank. The national office is responsible for overall policy and leadership and has been very active in developing the programme and encouraging juvenile liaison officers to embrace the restorative option. Several juvenile officers have been individually influential in developing policy and practice.

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All criminal cases involving juvenile offenders (persons under 18) must be notified to the national office. Initial reports are made by the investigating police officer and forwarded thorough the local management with a recommendation as to outcome6. The most serious cases must be referred to the Director of Public Prosecutions (DPP) but the majority of cases end up being referred to locally-based juvenile liaison officers for assessment as to suitability for caution and possible restorative intervention7. When the liaison officer receives the referral, he or she assesses the case and can recommend caution, prosecution, or no further action. Generally the recommendation is accepted by the national office and the case is then followed through to finality. If the juvenile liaison officer is considering a caution, he or she may also assess suitability for restorative intervention. Case selection under the Garda RJ programme allows great flexibility. The assessment by juvenile liaison officers in individual cases is critical. Current policy states that each case mustt be assessed on its own merits and no particular offence or class of offences is excluded. However, the risk of re-victimising the victim is considered carefully. It is also policy that “priority should be given to serious cases where there is a readily identifiable victim who has suffered harm or loss and who needs or wants to engage in the process”. Assessment of offenders is described in broad terms, such as taking account of “their circumstances keeping in mind any obvious substantial risk of re-offending”. In furtherance of the aim of concentrating effort on more serious offending, the director of the Diversion Programme has recommended that special consideration be afforded to three categories of cases: • cases requiring the consent of the DPP, • cases of burglary, theft, assault, criminal damage and harassment, and • cases “where it is considered that restorative intervention will be to the benefit of the victim, the offending child or the community”. Under the Children Act 2001 (section 31), the director of the Diversion Programme must, when deciding on whether or not to hold a restorative conference, have regard to the following: • the report and recommendation of the juvenile liaison officer, • whether in the director’s opinion the conference would be of assistance in preventing the commission by the child of further offences, 6

Under the Children Act 2001 (section 18), offenders who accept responsibility for their criminal behaviour must be considered for inclusion in the Diversion Programme unless the interests of society otherwise require. Section 23 adds that the director of the programme must be satisfied that admission to the programme is in the best interests of the child and not inconsistent with the interests of society and any victim. 7 Generally, if the Director of Public Prosecutions directs prosecution (in the case of the most serious offences) or if the offender has previously been considered unsuitable for cautioning, prosecution will proceed without referral to the local liaison officer.

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• the views, if any, of the victim, • whether the victim would attend the conference and, where the victim is a child, if attendance would be in his or her best interests, • the interests of the community, and • any other relevant matter. The Act does not stipulate conditions for restorative cautions (where the victim is invited to formal cautions) but the same general considerations can be seen to apply. The fact that the programme is largely within the control of the one organisation facilitates selection and organisation of cases. The new provisions have not changed the requirement to refer certain cases to the DPP and everything else lies within the area of responsibility of the police organisation. The discretion the officers have in case selection might be seen as both a strength and a weakness of the system. It constitutes a strength insofar as there is no imperative to follow the approach blindly in all cases and it gives the power of recommendation to the person who is most familiar with the case and with the likely participants. The decision does not require the approval of the investigating police officer or local management, although their views are taken into account. The extent of discretion represents a weakness if it results in low take-up due to ambivalence about RJ or pressure of other work. Discretion also leaves exposure to the allegation of bias against particular types of offence, offender or victim. The appropriate response is not seen as reducing discretion so much as encouraging and supporting officers. One challenge is to ensure a speedy process and avoid undue delays. The impact of a restorative (or any) intervention is reduced the longer the delay. This is especially true for young people. In the Garda programme, delays can potentially occur at any and all stages between the culprit’s admission of an offence, the submission of a report by the investigating officer, the recommendation by the local police manager, the decision of the national office, referral to the juvenile liaison officer, the officer’s recommendation as to disposal, decision of the national office on disposal and the organisation by the liaison officer of the restorative event. Delays can be longer if the DPP has to be consulted. The processing of cases through the system needs to be examined so that delays are minimised, perhaps with targets at each stage or fast-tracking of certain categories. Delay is not unique to the RJ programme and is part and parcel of a rigorous and just criminal justice system. Nevertheless, it would appear that there is need and scope for reducing the time lapse between offence and intervention. An alternative structure for delivery of restorative interventions for juveniles would have been for an outside agency to be established or

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appointed to carry out any VOM or even for the police to draw mediators from a panel of independent mediators. Potential risks associated with police facilitators include being more sympathetic towards victims, less tolerant towards offenders and prone to defending police colleagues or using the opportunity to gather intelligence. As regards the Garda programme, comfort can be got from the evidence to date and from safeguards built into the process. Evaluations of the programme have found high levels of satisfaction on the part of offenders, victims and their supporters and no evidence of system bias against offenders. It may be that juvenile liaison officers are more suited to the role of neutral facilitator than other police colleagues. They specialise in working with young people and their families and the principles of RJ are close to the principles that govern their other work. A factor that is often overlooked is that many victims, and even offenders and their families, appear reassured by the fact that the facilitator is a police member. In their eyes, this offers protections, including as regards confidentiality and even-handedness. Another safeguard is the general practice to date that liaison officers do not facilitate their own cases. Although it is allowed under the Act, officers are discouraged from acting as mediator in their own cases and generally call in a colleague for this purpose. Of the initial 147 cases, an outside liaison officer mediated in 106 (72%) and this proportion is increasing. The appointment of an independent chairperson is not ruled out and the Children Act makes specific provision for this eventuality. However, no such appointments have occurred to date. More fundamental safeguards arise from the very nature of the programme and its place in the criminal justice system. The voluntary participation and absence of any sanction for non-participation or noncompliance help ensure that the police mediator has no incentive to achieve any particular type of result at the possible expense of the offender, even if this were thought likely to begin with8.

4.

PROFESSIONAL CHARACTERISTICS

As mentioned, the juvenile liaison officers who mediate in the restorative events are serving police officers and are recruited from within the police service by competition. At time of writing there were 94 juvenile liaison officers. All are eligible to engage in mediation on completion of relevant training. By the end of 2003, 47 liaison officers had received training in restorative cautioning and 42 had completed or were undergoing basic 8

This is not to imply either that the presence of a sanction for non-participation or noncompliance, as in the case of court-referred offenders, gives an incentive to achieve any particular outcome.

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training in mediation while 14 were undergoing advanced training (Garda Síochána, 2004). Newly-appointed liaison officers undergo two weeks formal training in the Garda College. This initial training covers all aspects of their job. As regards restorative interventions, the officers receive standard training in the use of the “Real Justice” scripted method of restorative cautioning (O’Connell et al., 1999). This is based on a highly structured model, following a set sequence of questioning and participant involvement. It focuses on the specific incident that gave rise to the caution and asks about the impact of the offence and how harm caused can be repaired. It also looks at how future offending behaviour can be avoided. Victim awareness has been added as a module of basic training, with input from the “Victim Support” organisation. A programme of basic and advanced training in mediation is also in place, with a firm intention to strengthen and expand training further. Initial mediation training was based on community mediation models but the emphasis on RJ aspects is increasing. Steps are being taken to develop support and supervision, including regional review sessions. A process of independent accreditation has been developed. As regards case workload, juvenile liaison officers dealt with 8,441 formal and informal cautions in 2002, an average of 90 cautions each. This does not represent the total caseload since it omits 6,096 cases where the recommendation was for prosecution or no further action and 5,671 cases pending from 2001 (see also Table 3-1). The 147 restorative events held in the first 20 months since commencement of the relevant provisions in the Children Act involved 62 juvenile liaison officers. Most cases (72%) involved two officers. The average duration of each, including preparation, was 11.6 hours.

Table 3-1. Disposal of 2002 referrals under the Juvenile Diversion Programme. Informal No further Formal Region Pending Prosecuted action caution caution Eastern 642 299 1,186 172 958 Dublin 2,011 377 2,544 457 2,096 376 169 507 84 393 Northern South Eastern 630 258 1,031 74 907 Southern 943 357 940 248 1,064 Western 340 194 579 119 692 Total 4,942 1,654 6,787 1,154 6,110 Source: Garda Síochána (2003).

Total 3,257 7,485 1,529 2,900 3,552 1,924 20,647

The case procedure is that the juvenile liaison officer responsible for a case assesses its suitability for a restorative intervention and makes initial contacts with the parties. A second liaison officer generally acts as mediator

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and both have a role in case development and both attend the restorative event. The original officer is responsible then for reporting on the outcome and supervision of the offender. The mediators have several years experience as police officers on appointment to their positions as juvenile liaison officers. Many have relevant qualifications such as counselling, but no third-level qualification is required. Training is provided as outlined above and can lead to accreditation as a mediator. An annual conference of juvenile liaison officers and national office staff addresses common concerns and provides a forum for sharing experiences. Regional meetings are also held. In Dublin and Cork, regular meetings at Division level allow local matters to be raised. In rural areas, many officers reported a sense of isolation. The regional meetings help overcome this isolation, as does involvement with colleagues in restorative cases.

5.

CATEGORIES AND PROFILES OF JUVENILE OFFENCES

Garda RJ interventions perhaps look insignificant in the context of the total number of juvenile offending cases. This is misleading because, as discussed earlier, the restorative interventions under the Act are relevant only to cases dealt with by formal caution and which involve a victim and a suitable offender. To give some idea of the overall numbers, however, the Juvenile Diversion Programme dealt with over 20,000 referrals in 2002, the last year for which published data are available. The referrals related to some 17,500 individual offenders, an average of 1.2 offences per offender. A breakdown of referrals and their disposal by region is set out in Table 3-1. The 2002 data also show that almost 23% of offenders were aged 17 at the time of the offence, 25% were 16 years old and a further 21% were aged 15. The largest categories of offence were alcohol offences (19%), thefts (19%), criminal damage (11%), public order (7%), assault (7%), traffic offences (6%), vehicle offences (6%), burglary (5%) and possession of drugs (5%) (Garda Síochána, 2003). Thus many offences could be described as “victimless”. Between the initiation of the pilot Garda RJ programme in 1999 and August 2001, a total of 68 restorative events took place, involving 96 offenders. Victims or their representatives participated in four out of five cases. In the 20 months following the formal commencement of the Children Act in May 2002, 147 restorative events took place, involving 218 offenders, with victim participation or representation in 65% of cases.

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The pilot programme was evaluated in 2001 (O’Dwyer, 2001). The selection of cases under the programme was non-random so it was not possible to draw firm conclusions about success, including impact on recidivism. Nevertheless, the evaluation reported high scores in respect of key aspects of process and performance. Observed levels of satisfaction were high and four out of five cases were judged to be highly or very highly successful overall. A second evaluation covered the 147 more recent cases. The original evaluation instruments were refined to include, for example, direct feedback from victims and other participants. Victims, offenders and offender supporters all gave high scores as regards satisfaction, ranging from 4.49 to 4.65 on a scale of 1-5 (provisional figures). The vast majority gave scores of 4 or 5 - 93% of victims and 94% of offenders and their supporters. As regards monitoring of individual cases, offenders are subject to supervision by a juvenile liaison officer for a period of 12 months, unless this is revised at a conference. Supervision is not defined in the Act but involves contact to monitor progress and offer support to the young person and his or her family. Oversight of agreements reached at restorative events takes place in this context. Failure to honour commitments can trigger a further family conference to assess and address the reasons for noncompliance. The evaluation of the Garda pilot programme made a number of recommendations regarding practice, many of which have been taken on board since. It recommended that mediators should be involved in case development and should not meet the participants for the first time at the restorative event. This had occurred in a small number of cases which effectively required the local juvenile liaison officer to act as co-facilitator. Many of the recommendations concerned the continuation of good practice. Thus, it emphasised the need for events to be held in neutral venues which were safe, accessible, discreet and not subject to interruptions and which took account of a possible need for rooms for private time. It recommended that consideration should be given to increasing the number of participants, taking into account the need to balance participation, respect confidentiality and ensure that those that can make a positive contribution are present. It endorsed the practice of keeping numbers of Garda participants small. It drew particular attention to the desirability of giving victims every encouragement to participate but without putting any pressure on them. Where the victim did not wish to attend, it suggested consideration of alternatives such as family representatives, “Victim Support” volunteers or surrogate victims. It specifically recommended that attempts to organise events should not be abandoned solely due to victim absence.

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The report saw a need for mediators to review their performance against standards learned in training and a need for them to be supported through regular independent feedback, particularly in the initial stages, and through in-service training, seminars and conferences. The evaluation also recommended exploration of possibilities for developing action plans, recognising that many cases do not need more than a sincere apology and promise not to repeat the offence. Wider consideration of reparation was highlighted as one possibility. Attention was also drawn to the need to reduce delays, with a recommendation to ensure that restorative events take place as early as possible after offences come to notice. A review of system delays was suggested to see how processes could be streamlined.

6.

OTHER SERVICES OFFERING MEDIATION WITH JUVENILE OFFENDERS

This section looks at other services offering mediation with juvenile offenders. By far the most important is the Probation and Welfare Service. The service is empowered under the Children Act 2001 to arrange family conferences on direction of the court. Their RJ interventions are discussed immediately below under similar headings to those used in describing the Garda programme. The separate and shorter treatment of the probation service programme is for greater clarity and ease of reading. It serves too to highlight both similarities and differences between the programmes. The briefer treatment also reflects the very recent introduction of the relevant legal provisions in the 2001 Act, the consequent lack of opportunity to hold conferences and the absence of published material. The section concludes with a description of other services, which deal primarily with adults but occasionally with juveniles.

6.1

Probation and Welfare Service Family Conferences

As alluded to earlier, the Children Act 2001 (sections 78-87) provides for the possibility of a court-referred family conference for juvenile offenders operating under the auspices of the Probation and Welfare Service. The provisions apply nationally. The relevant sections of the Act were only brought into operation on 29 July 2004, leaving no opportunity for the courts to make referrals or family conferences to be held by the time of writing. The aim of the family conference is to understand the reasons for the offender’s behaviour and help to prevent re-offending. Three basic conditions must be met: • the child must accept responsibility for his or her criminal behaviour;

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• it must appear to the court that it is desirable that an action plan should be formulated for the child; • the child and his or her parent or guardian (or family members or relatives who could make a positive contribution) agree to attend and participate. Case selection is thus determined by suitability of offenders and their potential for assistance and not by type of offence committed. Where these conditions are met, the court may direct the Probation and Welfare Service to arrange the convening of a family conference. Where a conference is approved, court proceedings are adjourned. The conference must then be held within 28 days (section 79). We do not yet know how the courts will use this option or what processes will operate. Any action plan formulated can include elements relevant to the victim (an oral or written apology or both, and financial or other reparation) as well as elements specific to the offender (e.g., participation in training or education). By virtue of section 80 of the Act, the same provisions that govern the formulation of an action plan at a Garda conference apply to the probation service family conference. The victim and support persons must be invited to attend unless their participation is not considered to be in the best interests of the conference. If they are invited to attend but are unable or unwilling, all reasonable steps must be taken to ascertain their views and make them known at the conference (section 85, invoking sections 32(4) and section 36). A key feature that distinguishes the court-referred family conference from the Garda conference is the court’s powers of compulsion. The probation and welfare officer dealing with the case reports back to the court. Any action plan is submitted to the court, which has the power to approve or amend it and order compliance. Where an action plan is not agreed, the court may formulate one and order compliance or can resume proceedings. The court can also grant an extension of time to hold a conference, subject to a maximum of another 28 days. Where the court is satisfied with compliance, it can dismiss the charge on its merits. Where the offender fails to comply, without reasonable cause, the court may resume the original proceedings (sections 81-84). The participation and compliance of the offender are voluntary, but as with similar court-referred schemes in other countries, the voluntary element is to a degree qualified by the negative consequences of non-participation or non-compliance. In contrast, there is no sanction for failure to participate in a Garda conference or for not complying with any action plan that emerges since the offence has already been dealt with to finality by means of police caution. Family conferences will be funded from within the Probation and Welfare Service’s budget. In Spring 2003, the Department of Finance

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sanctioned 30 additional posts for the Service, including five administrative support staff. These additional staff are working with programmes for young offenders as well as undertaking training and detailed preparation for family conferencing. The experience gained in working with services on the ground is expected to be an asset in contributing to the preparation of family conference action plans. To prepare for the implementation of family conferencing nationally, an internal steering group was put in place in April 2003 and an audit of facilities suitable for family conferencing undertaken. Liaison with the Irish Courts Service and “Victim Support”, as well as contact with the Garda Síochána (police) and the Health Boards, also formed part of the preparations. In addition the steering group produced a manual for use by staff convening family conferences. As part of its planning, the Probation and Welfare Service engaged trainers from the New Zealand Department of Child, Youth and Family Services for the intensive training of professional staff as facilitators for the family conferences to be convened under the Act. This has been followed up with internally-provided training for professional staff nominated to convene family conferences. Probation fficers already have academic qualifications and professional training relevant to working with offenders. The service sees the commencement of family conferencing as an important step in the implementation of the Children Act 2001. Family conferencing is seen as offering the great benefit of diverting young people from further court proceedings, conviction and possible custody and giving the another option to deal with young offenders. Some indication of the potential number of cases is given by the number of juvenile cases approved for prosecution under the Garda Juvenile Diversion Programme. In 2002, 4,942 cases fell into this category (see Table 3-1 earlier) and they involved 3,307 individual offenders. This does not include cases pending at the end of 2001. This is estimated to add another 1,376 offenders, assuming the same rate of prosecution. Thus the Diversion Programme figures would suggest a potential pool of 4,683 offenders appearing in court from which to identify cases suitable for family conference. The question of interaction between the Garda and the Probation and Welfare Service programmes is of interest. A number of dimensions are discussed below, mainly the assumptions a court might make about previous offending, co-operation between State agencies and impact on families of multiple restorative interventions. The discussion is necessarily speculative in the absence of experience with court-referred family conferences and its evaluation.

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The Garda programme provides for diversion mainly for first-time and less serious juvenile offenders. It is not unusual though for a juvenile offender to be cautioned on more than one occasion. This suggests that by the time the typical juvenile offender gets to court, he or she will have accumulated a number of offences. The court must deal only with the specific offence before it but it will be aware of the probability of other offending (even if no conviction has ever been recorded) and take-up of the family conference option will depend on the court’s belief that that type of intervention can make a difference despite the assumed previous offending. The point may be even more relevant to court cases where the offender was previously in court on other charges. If a family conference was organised for the earlier offence and the offence was dismissed on completion of an action plan, would the court be entitled to consider this previous offence in assessing suitability for a second family conference? One view is that the court should not be so entitled and that each offence should be judged on its merits, a view likely to find favour with those who advocate multiple but incrementally more intensive restorative interventions as a response to repeat offending. Whatever about the court assessing suitability for a family conference strictly on the basis of the specific offence before it, it seems desirable, if not necessary, for the conference itself to be aware of other offending if it is to formulate a realistic action plan to help the offender. Ideally a family conference would also be aware of any police-organised restorative intervention that had already taken place. The family conference should then discuss the new or continuing factors that might explain reoffending and should be cognisant of the degree to which the offender honoured commitments in any previous action plan. The court-referred conference should take account of the views of the earlier conference without being bound by them. A limitation on revealing previous offences and responses will arise in cases where a family conference fails to agree an action plan and the court itself decides to draw up and impose a plan under the terms of section 82(2)(a). Any examination of previous offending would prejudice its authority to continue an impartial hearing if there was subsequent failure to comply with the action plan. The family conference option gives an additional and alternative possibility for working with offenders. Even where a Garda conference had already taken place, the formality of the court and the threat of a court sanction might be enough to persuade young offenders to “try harder”. Or their circumstances or attitudes may have changed positively in some important way, perhaps due to an entirely independent event in their lives. Additionally, although not a certainty, a court-organised event might be able

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to muster greater resources in terms of wider participation at the conference, professional input and post-event services and supports. A concern sometimes voiced is that an offender or the offender’s family will be confused or fatigued if they are exposed to multiple forms of conferencing. Some see a risk of over-conferencing, especially given that the family may also be required to participate in a “welfare conference” arranged by their Health Board and bearing in mind that Garda conferences must be re-convened to review progress. At the very least, it is argued that there is a need for co-ordination between the relevant State agencies so that what each agency is trying to achieve is not undermined by the efforts of another agency. Protocols could be developed which provide for consultation between health, police and probation officers at local level at the case development stage and for invitations to participate at conferences where relevant. One would not expect probation officers to be involved in restorative interventions being organised by the police. On the other hand, police involvement seems relevant to family conferences being organised by the probation service. This is because juvenile liaison officers will in almost all instances have had some involvement with the young offenders and are likely to have some contribution to make, by way of information if not participation. Health board personnel could be involved with offenders and their families at either stage and may be relevant to future interventions even if they have not been involved with the offender’s family to date. Finally, a potential danger is that juvenile liaison officers may be tempted to avoid engaging with particularly challenging cases on the basis that the court will have another chance later if necessary. The risk may be exaggerated but may be worth monitoring nevertheless.

6.2

Restorative Justice Services (Ltd)

Ireland’s one formal VOM service is based in Tallaght, a suburb of Dublin. Initially launched in 2000 as a VOM service, it expanded in 2004 to include an offender reparation programme. This has allowed it to offer services where the victim does not wish to participate in direct or indirect mediation, where the case is deemed not suitable for mediation or where no direct victim is involved. Restorative Justice Services (RJS) is an independent service funded by the Probation and Welfare Service. Its annual budget is just under € 250,000 (at 2004 prices). The budget provision includes salary costs of a director, case manager and part-time administrator, office rental and running costs, travel, training and payment of an honorarium to facilitators. While having the capacity and desire to expand its VOM programme, the RJS has catered for relatively small numbers. It handled an average of 1.5

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cases per month over the three years to summer 2004. The RJS does not target juveniles specifically but about 10% of cases have involved juveniles (equivalent to just 6 cases), all of whom were aged 17 at the time of the mediation. All except a handful of cases have been court referrals. In contrast, the offender reparation programme was made available to the local court (Tallaght District Court) in March of 2004 and was referred 58 cases up to the end of June. Both restorative programmes operate at the pre-sentence stage. The offender must be formerly charged, appear in court and plead guilty or be found guilty. In practice, what often happens is that the probation officer, the police or the defendant’s legal representative suggests that the case is suitable for referral. The local judge has been very proactive with regard to the new reparation model. No formal criteria for case selection have been set out. The judge considers each case on its merits. Among key factors considered are the offender’s previous track record and any substance dependency. Certain offences are unlikely to be accepted by the service, e.g. child abuse cases, serious sex assault or domestic violence. If the judge considers mediation or reparation an appropriate option, the case is adjourned to allow assessment by the probation officer and RJS. Generally this occurs within 2-4 weeks. If the assessment is positive, the mediation or reparation hearing process commences, including contact with the victim. If the assessment is negative, the court hearing continues. When the mediation or reparation process is completed, a written report is made to the court. At the resumed court hearing, the judge decides on the appropriate disposition. In the case of mediation, if an agreement is reached and the offender fulfils its requirements, the judge may decide that no further sanction is required or may impose a nominal sanction. It is not unusual, however, for the offender to be made subject to a probation order, be bound over to keep the peace or be fined. No offender who completed mediation successfully has had a prison sentence imposed (even if suspended). In the case of the reparation programme, the judge simply discharges the case on successful completion of the commitments entered into and the offender is spared a criminal record. Typical commitments are: • an apology (given verbally or written); • a charitable donation in the region of € 250 (about 25%-50% of a court imposed fine for a similar offence); • attendance at an alcohol or drugs awareness programme; • keeping a journal that contains the offender’s reflections while participating on the restorative programme. If the offender fails to agree to mediation or the reparation programme, or does not engage satisfactorily with the process, the judge resumes dealing

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with the case as if the restorative intervention had not taken place. If the offender fails to fulfil reasonable provisions in any mediation or reparation agreement, the judge will enquire as to the extent of any progress made and the reasons for non-completion, and then conclude the case taking all factors into consideration. A sanction might very well be avoided if the agreement is partially fulfilled and if extenuating circumstances apply. Otherwise it is more likely to involve imposition of a sanction, up to and including imprisonment. Restorative interventions, which can be direct or indirect, generally take place at the organisation’s offices. The office is located in a business park independently of other criminal justice agencies. The service has a panel of sixteen trained facilitators including the service director. Two facilitators always work together, even with indirect mediation, although this policy was under review at the time of writing. No specific code of ethics applies but careful screening of applicants, training, supervision and overall guidelines adopted from other services help ensure appropriate standards. The facilitators are essentially free-lance and are paid an honorarium for each case assigned plus expenses incurred. They are free to be involved in other mediations or activities as they wish. Facilitator selection is based on a number of factors, notably experience in a relevant professional discipline (e.g., teaching, social work, counselling), previous practical facilitation experience, life experiences generally and aptitude. There is no requirement for a formal educational qualification although many would have a third-level qualification of some kind. Training is provided internally, having been initially provided by a Scottish based Reparation and Mediation Service. Training comprises 120150 hours of classroom tuition, homework and work-group meetings. Classroom attendance includes ten Saturday sessions. Attendance rates are consistently high, averaging 90%. Group support meetings for the facilitators are held on a monthly basis. Since the appointment of the case manager, facilitators also receive a monthly one-to-one support and supervision session. Other events such as training and conferences also provide opportunities to share experiences. Working in pairs allows facilitators to review cases together and draw matters of concern or special interest to the attention of the director or case manager. The service is managed by a partnership of stakeholders in the criminal justice system. The board of management comprises representatives of the Probation and Welfare Service, the Garda Síochána, “Victim Support”, the community, a representative of the facilitators and the service director. Up to the end of May 2004, the service received 61 referrals for mediation. Approximately 40 cases went into the restorative process. The

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main categories of offence were: criminal damage, car theft, other theft, assault and minor sexual assault. Offences against public order were often cited as associated offences, especially in assault cases. Approximately 50% of the cases ended in an agreement. Restorative actions to emerge have included verbal and written apologies, agreement to enter addiction treatment, compensation, agreement to re-locate, and agreement to behave in a civil way to each other. The small volume of mediation referrals can be attributed to a number of factors. The service is independent and external to the criminal justice and must rely on judges for referrals. It faces a challenge to ensure that judges routinely think about mediation and reparation as attractive case disposal options. Other professionals, notably probation officers, prosecutors and police must also be persuaded of the merits of these RJ interventions. In planning the reparation pilot programme the service engaged directly with the relevant judge and met with him on a regular basis. Formal and informal meetings with the judge to review progress continue on a frequent basis. This sense of partnership and shared ownership of the programme appears to be directly related to the significant number of reparation referrals made to the service since its inception. If the facilitators get little opportunity to practise their skills, the risk is a loss of motivation and departure. That this has not happened is a tribute to the personal commitment of the facilitators and a belief in the RJ ethos. They recognise also that they are part of a movement for change and that change can be slow. Another potential danger of low numbers is that borderline unsuitable cases may be accepted simply to avoid discouraging judges or facilitators. Follow-up of agreements is a matter for the courts, and the service sees no role for itself once it has presented its report to the court, beyond clarifying issues related to the agreement or restorative process should they arise. The service does not encourage long-term commitments by offenders and most outcomes have involved written or oral apologies or once-off restorative gestures such as small compensation. Some have also entailed commitments about behaviour, of course, but the service merely reports these to the court. As mentioned earlier, the judge may impose a probation order in which case the assigned probation officers has an opportunity to support the offender over a longer period. An evaluation of the service, commissioned in March 2001, focused mainly on process issues and relations with the state agencies.

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Nenagh Community Reparation Project

The Nenagh Community Reparation Project covers the town of Nenagh (population c. 8,000) and its rural hinterland. It receives referrals from the local District Court (lowest court level) at the pre-sentence stage. The project involves adults primarily and can involve juveniles, although up to summer 2003 only one referral involved a juvenile. It was expected that victims would feature prominently in the programme but to date the majority of cases have been so-called “victimless” offences or the victims have not wished to be involved. Only four out of 20 cases processed between March 2001 and January 2002 involved victims. The project was set up in June 1999 and emerged from the work of a Government expert group on the Probation and Welfare Service. It was inspired by a similar project in Timaru, New Zealand, and was promoted by a District Court judge and by the head of the Probation and Welfare Service. It has features of both community service programmes and cautioning schemes. The focus is “much more on reparation than mediation”, to quote a 2002 study (Nenagh Community Reparation Project, 2002: 7). The model is one of referral to a panel of community representatives who meet the offender with the police and possibly the victim. The panel meeting is chaired by the project co-ordinator, who is a probation officer. The offender is asked to outline the reason for his/her appearance before the panel. The Garda representative is familiar with the reporting and investigation of the case and can help ensure full disclosure by the offender or clarify any confusion. If the victim is not present, the co-ordinator may have a statement from him/her and this is read to the offender. Panel members then begin their questioning. If the victim is present, he/she may ask questions or make comments. A discussion follows. The offender is then encouraged to outline a possible plan of action which will address his/her offending behaviour and its consequences and help reduce the risk of re-offending. Everyone must agree that the contract is fair and achievable. The project is not involved in other fields of mediation. No specific code of ethics applies. The role of the panel members is confined to hearing the offender’s and victim’s story and discussing the offender’s behaviour with him or her. They meet the offender and victim for the first time on the day of the panel meeting. They have no follow-up role. The panellists are volunteers who represent different community interests. There were 14 panel members in summer 2003, all of whom received introductory training locally and most of whom attended an “Introduction to mediation” course run by the VOM service in Dublin (now known as “Restorative Justice Services”). Joint training with that service has

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continued. At the time of the 2002 study (Nenagh Community Reparation Project, 2002), the panel consisted of eight females and three males. Three were teachers, three were retired professionals and two were public servants. The panel also comprised a mother/homemaker, a manager and one with an undisclosed background. Panellists are recruited locally by word of mouth. The local probation officer arranges meetings between the panel, offender and victim and works with the offender throughout the process. The officer already has the offender and offence details and liaa ses with the court service and police for other information. Panel meetings with offenders generally take place in the project office, at various times of the day or evening. The office is located in a building not associated with other Government services. The panel members work in pairs and pairings are rotated. The 2002 study reported that panel members had attended between two and five meetings each during the previous year (Nenagh Community Reparation Project, 2002). As with the other court-referred programmes, when the community reparation process is completed, a written report of the outcome is made to the court. If agreement has been reached, the judge adjourns the case to allow for its implementation. On the second return to court, the judge simply discharges the case and the offender is spared a criminal record. In the event of failure to agree or complete a contract, the case proceeds as if no referral had been made. The number of referrals is low but it was always envisaged that the project would take on no more than an average of two referrals per month and this is being achieved. A total of 49 cases had been processed as at mid2003. One case involved an offender who was a juvenile at the time of the offence. The project does not have formal criteria for case selection but the 2002 study of 20 cases showed that almost half (45%) involved public order offences while over a third (35%) involved possession of drugs (Nenagh Community Reparation Project, 2002). Only four victims were involved and all offenders were first-time offenders, aged between 17 and 40, mostly male (90%). Agreed outcomes are formulated as contracts. Of the 20 offenders in the 2002 study, 15 had completed their contracts, 4 contracts were on-going and one offender re-offended and the contract was withdrawn. Each contract included at least one of the following: attend addiction counselling, make financial repayment, become involved in sports activities, visit schools to highlight drink/drug problems, offer apology to victim, monitor and assess their own social behaviour and miscellaneous other provisions. The fact that an offender is subject to a specific period of court supervision facilitates longer-term actions.

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The project has charitable status, is funded by the Probation and Welfare Service and the project co-ordinator and manager is a probation officer. The budget covers office costs, part-time administrator, travel and training. Community panellists are reimbursed certain out-of-pocket expenses such as travel but are not paid for their time. The project has a board of directors of fifteen members who are representative of the voluntary, statutory and community organisations in the district. A management sub-committee is involved in the general administration of the project. While six director members regularly attend a monthly meeting to review progress and carry out administrative duties, all directors have the right to attend. The involvement of a probation officer as project co-ordinator is a major strength in ensuring the desired level of referrals from the court. The probation officer has a role in identifying potentially suitable cases, case development, chairing panel meetings, working with the offender during the period of the agreement and follow-up contact with the court. However, this level of involvement may be a constraint on further expansion of the project, given other demands on the officer’s time. The key role also of the local judge, police and legal representatives in identifying cases suitable for referral makes the project vulnerable to changes in these personnel if their successors are less enthusiastic or supportive. A challenge for the project is a greater engagement with victims and steps are being taken in this direction.

7.

CONCLUSION

In Ireland, mediation in criminal justice cases is of recent origin. The Children Act 2001 has introduced significant changes for juvenile offenders and can be an important catalyst for further change. The provisions in the Act for RJ interventions, including significant elements of mediation, were introduced in May 2001 for the police service and in July 2004 for the probation service. The police interventions take place within a framework of police cautioning. The probation service interventions are on the direction of the court. Mediation other than under the Children Act is confined to two mediation and community reparation services funded by the probation service. These deal mainly with adult offenders and have not yet really succeeded in getting beyond the pilot stage. Awareness needs to be raised among criminal justice professionals, including judges, so that restorative interventions are considered routinely as options for case disposals. Much needs to be done to develop capability and competence further, including the provision of extra resources, training, and encouragement and the development of policy and practice guidelines.

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On-going monitoring and evaluation are critical, to ensure performance to the highest standards as well as generate support. Rigorous evaluation is required in order to provide hard evidence, especially as regards impact on offenders and victims. Impact on re-offending will be a key indicator but can only be demonstrated over time and by comparison with control groups. Experience and evidence from other countries needs to be highlighted. In summary, although VOM in juvenile cases is at modest levels in Ireland at present, this is likely to change, at least as regards the diversionbased programme operated by the police and the court-based programme operated by the Probation and Welfare Service.

REFERENCES Garda Síochána, 2003, Annual Report of An Garda Síochána 2002, Government Publications Sales Office, Dublin. Garda Síochána, 2004, Report of the Committee Appointed to Monitor the Effectiveness of the Diversion Programme 2003, Garda Síochána, Dublin. Nenagh Community Reparation Project, 2002, Baseline Study 2002, Nenagh Community Reparation Project, Nenagh. O’Connell, T., Watchel, B., and Watchel, T., 1999, Conferencing Handbook: the New Real Justice Training Manual, The Piper’s Press, Pipersville, Pennsylvania. O’Dwyer, K., 2001, Restorative Justice Initiatives in the Garda Síochána: Evaluation of the Pilot Programme, Garda Síochána, Templemore.

PART TWO NORTHERN COUNTRIES

Chapter 4 VICTIM-OFFENDER MEDIATION IN SWEDEN Lottie Wahlin -

1.

THE DEVELOPMENT OF VICTIM-OFFENDER MEDIATION IN SWEDEN

In Sweden, the use of mediation emerged and developed spontaneously in several locations across the country. The initial projects started in 1987 in two cities (i.e Hudiksvall and Soln/Sundbyberg). One of these projects was initiated by the police, the other by a volunteer organisation for former prison inmates and their families. During the 1990s, a number of mediation projects started in different parts of the country, for the most part under the responsibility of the municipalities. Both the objectives and the forms taken by the projects varied. In 1998, a national organisation was founded the Swedish Association for Mediation1. The organisation’s objective was to work for the development and dissemination of the use of mediation as a method of conflict resolution in Sweden. The organisation’s primary focus has been directed at the use of Victim-Offender Mediation (VOM) in connection with crimes committed by young offenders. The same year, the Swedish National Council for Crime Prevention (BRÅ2) was commissioned by the Government to initiate a trial project using mediation in connection with young offenders. The Government felt that the mediation was an important issue and that work in this area should be developed. The National Council for Crime Prevention was to follow and co-ordinate the projects included in the trial project and evaluate the project 1 2

Svenska föreningen för medling. Brottsförebyggande Rådet.

77 A. Mestitz and S. Ghetti (eds.), Victim-Offender Mediation with Youth Offenders in Europe, 77-100. © 2005 Springer. Printed in the Netherlands.

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itself 3. No particular requirements were made of the projects other than that they should primarily deal with young offenders, preferably youths between fifteen and seventeen years of age, and that participation in mediation should be voluntary for both victim and offender. The projects were also to be conducted in a way that was consistent with the parties’ right to personal integrity. Different types of mediation project were encouraged in order to provide as broad a basis as possible. In collaboration with the Committee on Crime Prevention, and an inspector appointed by the Government, the National Council for Crime Prevention was to choose the mediation projects that would be included in the trial and was to distribute funding to these projects. In total, the trial included 32 different projects, which conducted a total of 400 mediations during the year of 1997. The evaluation describes the different phases that characterised the initiation of these mediation projects. These were divided into six separate stages: 1. The conception phase – the initiative for starting the projects usually comes from public employees, such as police officers or social workers who come into contact with young offenders and crime victims in the course of their everyday work. 2. Establishing support for the project – this phase involves the dissemination of information to politicians and other local decisions makers, and funding is sought to initiate the project. 3. The organisational phase – the project is organised and collaborations are established between relevant parties. This phase often involves someone being employed to retain overall responsibility for the project. The project is adapted to existing practical conditions in the form of funding, time available and levels of commitment to the project. A large part of this work involves looking for ways to attract mediation cases to the project. 4. The execution phase – the practical work of conducting mediations begins. Most commonly this starts with simple cases, such as shoplifting and vandalism. With increasing levels of experience, the direction of the project takes form and routines begin to become established. 5. The operational phase – at this stage, the form of the project has become established and mediations have been conducted for a substantial period of time. 6. The maintenance phase – by this point mediation has become an established operation with fixed routines. The project is known about and is utilised by several different organisations. However, one common 3

The Council is a research institution subordinated to the Swedish Government. Its major task is to work for crime prevention through research about the criminological field and supply the Government, the judicial system and the public with this knowledge.

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problem is that the project organisation is often fragile, commonly being centred around a single individual. The evaluation of the trial project showed that the different projects varied with regard to organisational form, the goals of the mediation project, the types of cases included in the project etc. For the most part, the projects had no real basis in theory but rather seemed to base their activities on practical experience. In approximately half of the mediation cases, the offender was in the age group intended by the Government (15-17 years). The projects excludeed almost completely adult offenders. The majority of mediation projects were organised within the municipalities’ social services departments, but there were also projects run by the police and voluntary organisations among others. A large proportion of the projects included in the trial scheme have not continued their operations subsequent to the end of the trial period. One important contributory factor in this was the fact that the projects’ activities were no longer being financed by central Government. The evaluation proposed that in the future, mediation should be organised within the social services departments of the municipalities, since these departments provide the conditions necessary for good quality mediation activities with regard to both training, for example, and levels of experience in dealing with problems of this kind. The National Council for Crime Prevention also proposed that new legislation should be introduced into already existing legislation in order to provide mediation work with a greater level of legitimacy4. An additional proposal was that the goals of mediation should be further clarified; to reduce the suffering of crime victims and to reduce levels of criminal recidivism (Brottsförebyggande Rådet, 1999). Subsequent to the evaluation, a Government inquiry was convened in order to investigate the question of the role of mediation in the justice system5. The inquiry proposed that mediation should not be specified as an official form of sanction within the justice system, inter alia as a result of the fact that mediation is based on the voluntary participation of the victim. The inquiry also proposed that mediation might be made into a special precondition for the issuance of a waiver of prosecution, and where mediation had taken place, this could be taken into consideration by the courts when determining a sanction. Here too it was felt that mediation should be organised within the social services departments of the municipalities, both since the work of mediation is similar in many ways to the other work conducted within these departments and for reasons of 4

The Young Offenders Act ((Lag 1964:167 med särskilda bestämmelser om unga lagöverträdare). 5 “Victim-offender mediation in connection with youth crime”, Official report, Department of Justice (Statens Offentliga Utredningar, 2000).

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fairness, since it would facilitate making mediation accessible throughout the country. It was also felt that it would therefore be necessary to make the provision of mediation obligatory for all municipalities. The inquiry proposed that offenders aged between fifteen and seventeen should constitute the primary age group to be included in mediation, but that neither older nor younger persons should be excluded. In general there were no categories of offences that should be excluded from mediation. However both victimless crimes and sexual offences were deemed to be unsuitable for mediation or as impossible offences to mediate. The inquiry did not feel it had sufficient information available to determine whether mediators should include exclusively professionals. It was rather felt that this issue could be decided by the mediation projects themselves on an individual basis. What was instead deemed to be important was that mediators be impartial and that they receive adequate training. The Government inquiry eventually led to a new VOM Act, the first of its kind, in 20026. The Act relates solely to mediation that takes place in relation to criminal offences and which is arranged by central Government or the municipalities. That same year (2002) the Government commissioned the National Council for Crime Prevention to work with administration and inplementation in in Sweden. This commission was initially limited to one year, namely 2003. The National Council’s task on this occasion was that of stimulating mediation work with the longer term aim m of o making mediationn accessiblee throughoutt the country. The commission developed three main tasks: 1. The distribution of funding. A total of fourteen million SEK (approximately 1.5 million €) was to be distributed to mediation projects in Sweden that applied for funding. This funding was to be distributed to projects that wanted to initiate mediation work, to existing mediation projects in order to develop their work, and in the form of special funding to well-established mediation projects to provide assistance to new projects, helping them to get started by providing advice and guidance, for example. 2. Training. In order to enable mediation work to develop and to ensure that the work is of a high standard and is conducted in a relatively uniform manner, the National Council was commissioned to develop a special national training program and to then n provide adequate training to all those running mediation projects in the country, and particularly those projects receiving funding. 3. Quality control and methodological development. In order to ensure high quality mediation work and to see to it that the projects develop 6

Victim offender mediation Act (Lag 2002:445 om medling med anledning av brott). t

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organisationally and find good and functional forms for their work, the National Council’s task also involved developing means of ensuring quality control and methodological development. A special office was established at the agency staffed by four persons, with responsibility for the different areas involved in the commission (a project director, two practitioners who were responsible for training and methodological development, and a researcher with responsibility for quality control). A review of the state of mediation in Sweden was carried out by means of a questionnaire survey to all the country’s municipalities. Subsequently, a national training program and documents that would be required for funding applications and a special documentation system were formulated. Extensive work was undertaken to disseminate information by means of preliminary meetings at the regional level, brochures, and information sheets etc. The Mediation Office also participated in conferences, seminars and collaborative groups which were either directly related to VOM, or provided an opportunity to disseminate information on mediation and the task that the National Council had been assigned. Since the time to be spent on this work was initially limited to a single year, the work itself was focused on the dissemination of information, on stimulating the formation of mediation organisations thrrrough h funding and training of mediators. However, it became clear during the course of the year that the commission would be extended for at least one additional year. That made it possible for the National Council to formulate more long-term plans. This involved amongst other things a much broader collaboration with the National Police Board, the National Board of Health and Welfare, the Prosecutor General and the victim support organisations. An information concerning lectures and seminars were carried out together with the educational institutions that provide training for police officers, lawyers, and social workers, i.e. those groups of professionals who would be working with these questions. The objective was to ensure that the students would already know what VOM consisted in when they began their respective work careers. The extension of the length of the governmental commission also meant that the mediation projects that had received funding were given more time to really build up a stable organisation and to integrate mediation into the routine work of the municipalities. It is possible that the National Council’s work will be extended by an additional year, which would improve the opportunity to work towards making mediation accessible on a nationwide basis and towards ensuring that mediation work is conducted to a high standard.

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THE EXTENT OF MEDIATION ACTIVITIES

To date, mediation is not a part of the official sanctioning system in Sweden, and is therefore not compulsory at either the central Government or the municipality level, or particularly well-regulated. Legislation was introduced in 2002 that to some extent regulates mediation work conducted under the responsibility of either central or local governments. Having mention this, the existing mediation work in Sweden is almost without exception conducted under the responsibility of the municipalities, and commonly constitutes part of the work of the social services. Responsibility for the work is usually assigned to a public employee. The Government’s goal is nonetheless that VOM be included as part of the official sanctioning system, although it is unclear as to where in this system it would be most suitably be placed. An inquiry is currently underway concerning the issue of youth crime, whose remit includes the examination of this question. The work of the inquiry will be completed at the end of the year 2004. Even today, however, there are directives in place within the justice system that relate to mediation. The local police authorities are required in their annual reports to state the number of cases they have referred to mediation, and prosecutors have the authority to take into account whether mediation has taken place when they decide to prosecute a case through the courts. However, since this is not a statutory requirement at the present time, and is rather just an option that is open to prosecutors, many prosecutors do not avail themselves of this possibility. Despite a lack of institutionalisation, the mediation organisations are commonly placed under the social services departments of the municipalities. This is true even in the case of projects that are organised as collaborations between several different municipalities. In the majority of mediation projects, the mediation itself is conducted by professional social services officials within the framework of their routine work activities. Field workers are often preferred over other social workers whose work is focused more on providing financial support or on the exercise of public authority in other ways. This is because the mediator should neither be associated with the exercise of public authority nor run the risk of being perceived as partisan. For this reason, police or persons working in victim support organisations are often regarded as unsuitable for the role of mediator. Certain mediation projects are exclusively manned by professional mediators, whereas others also utilise lay persons, and one or two exclusively employ lay persons. There are 290 municipalities in Sweden of which approximately 104 were involved to some extent in the running of mediation projects in 2002.

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The number of cases that were referred as possible candidates for mediation varied dramatically between different municipalities, from none to 115 cases. Only 17 municipalities had 15 or more cases involving mediation. 70 municipalities ran their own mediation projects whereas 32 worked with one or more collaborative partners. The police role in the mediation process is mainly to ask the offender if he or she is interested to take part of a mediation and then hand over the case to the mediation project. Of this reason, the police constituted the most common collaboration partner but collaborations also existed between different municipalities or with other organisations. In almost half of the municipalities, the mediation work was well-established, whereas the work was in the process of being developed or was still in the planning stage in the remainder. Of the municipalities who did not have access to mediation, slightly less than half expressed an interest in initiating work of this kind. Over the course of 2003 and the first half of 2004, the National Council for Crime Prevention distributed approximately 19 million SEK (approximately 2.1 million €) in the form of funding grants to a total of 65 projects that had made applications. Of these grants, 61 were awarded to support new or to develop existing mediation projects, or to municipalities with relatively long-term experience of mediation to provide support and assistance to mediation projects that were just getting started. A relatively large number of these projects involved collaborations between a number of small municipalities, and some of them assumed responsibility to develop mediation across an entire region. The remaining grants were awarded to two voluntary organisations, a prison service institution and to a university as a means of stimulating mediation in the most No ortherly y areas of Sweden. After the first six months of 2004, mediation had become accessible in about half of Sweden’s municipalities. However, the work was in many cases still in the process of build up, both organisationally and in terms of its content.

3.

LEGISLATION AND EXECUTION

As mentioned above, a special legislation concerning VOM was introduced in 20027. This Mediation Act covers VOM with young offenders organised by central or local governments. The act has the characteristics of a piece of framework legislation and thus does not regulate mediation in any great detail. According to the Mediation Act, the goal of mediation is to provide the offender with a greater level of insight into the consequences of crime and to 7

VOM Act ((Lag 2002:445. om medling med anledning av brottt).

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give the crime victims an opportunity to work through their experiences. The offence must have already been reported to the police, and the offender is required to have admitted the offence, or to having participated in its commission. Participation in mediation has to be completely voluntary for both parties. Mediation may only be conducted with children under the age of twelve if there are exceptional reasons, not specified in the act, for this. It can be seen from the preparatory work conducted in association with the Act that it refers in particular to youths between fifteen and seventeen years of age, but there is no specific regulation of the maximum age deemed suitable for mediation either. There is no specific regulation of the types of offences that may be mediated. The preparatory work notes that certain offences are less well-suited to mediation. These include sexual offences, violence within the family and so-called victimless crimes, such as drug offences and certain motoring offences for example. According to the legal text, where a case is intended for mediation, the mediator is required to consult with the person in charge of the criminal investigation (a police officer or public prosecutor) before this investigation is concluded. If mediation takes place subsequent to this but prior to a court ruling in the case having come into effect, the mediator is to consult with the prosecutor. At the mediation meeting, the offender is to be given the opportunity to describe why he or she committed the offence, and to give his/her view of the situation. The victim is to be given the opportunity to describe his or her perceptions of the crime and of its consequences. Normally, the legal guardians of both the victim and the offender are to be given the opportunity to be present at the mediation meeting. It is possible that the parties may enter into a contractual agreement, but this is not a requirement. The mediator may only be part in a contractual agreement involving compensation if it is clear that this agreement is not excessive. It is also the job of the mediator to ensure that the agreement is followed. If the agreement is not followed, the mediator may inform the prosecutor of this if necessary. In Sweden, the age of majority is eighteen, and the age of criminal responsibility fifteen. Offenders under the age of fifteen are always referred to the social services. Young offenders between the ages of fifteen and seventeen may not be sentenced to prison other than in exceptional circumstances, and in such cases they should in the first instance be sentenced to secure youth care. There are also special regulations in place for youths aged between eighteen and twenty-one. Youths of this age many only be sentenced to prison under special circumstances. The fundamental view in Sweden is that when sentencing young offenders, they should in the first instance be remanded into the care of the

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social services for some form of treatment rather than being sentenced to a prison term. Prison is generally viewed as producing harmful effects, particularly among the young. For this reason, amongst others, it is a political objective to attempt to develop and utilise non-custodial sentences to as large an extent as possible. The legislation for young offenders is regulated primarily by a special act8. The Young Offender Act contains paragraph 6, introduced into the legislation in 2002, requiring that the social services be informed immediately where a youth under the age of eighteen is suspected of an offence that may lead to a prison sentence. This notification is in turn required to include information as to whether the suspect has been asked whether he or she would like to participate in mediation, and how the individual in question has responded to this question. The preparatory work conducted in association with this legislation recommends that the police put this question to such individuals. A directive to do so is also to be found in the guidelines outlining how the police should conduct their activities. However, the police are not formally required by law to ask whether a suspect would like to participate in mediation. With regard to VOM, the legislators’ intent shows visible signs of a desire to introduce certain regulations. Caution has been exercised in relation to the question of more detailed regulation, which is clearly visible in the existing legislation. One problem associated with this factor is that the police and the prosecution service do not really know how to approach the question of mediation, which in turn serves to make its implementation more difficult. If VOM were to become integrated into the sanctioning system, the position taken by police and prosecutors in relation to mediation would be much simplified, since it would become a legally regulated part of their routine work. The integration of mediation into the sanctioning system may involve a number of advantages as well as certain problems. One of the cornerstones of mediation today is that it is completely voluntary for both parties. The voluntary nature of mediation is regarded as forming the foundation for its successful application. If a young offender could be sentenced to mediation, this voluntary element would disappear. Mediation is also viewed as being for the benefit of both victim and offender. The voluntary nature of mediation is therefore of utmost importance in relation to the victim, who may come under pressure to participate if mediation were integrated into the sanctioning system. Similarly, an unrepentant offender could do a victim more harm than good in the course of the mediation process, where the victim could feel he or she is being subject to a further violation. It is

8

The Young Offenders Act ((Lag (1964: 167) med särskilda bestämmelser om unga lagöverträdare).

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important to be aware of these problems so that VOM does not become little more than a form of treatment for young offenders.

4.

THE MEDIATION PROJECTS

On the basis of the Mediation Act, the following requirements must be fulfilled for a case to go to mediation: • The mediation is arranged by central government or a municipality. • The offender has admitted to the offence, or to participating in the offence. • The offence has been reported to the police. • Participating in mediation is voluntary for both the victim and the offender. • The mediator has consulted with the individual leading the criminal investigation into the offence, prior to the conclusion of the investigation, regarding the intention to mediate in the case. If the mediation is to take place subsequent to the conclusion of the criminal investigation but prior to a court ruling in the case having come into effect, the mediator is to consult with the prosecutor. • An offender under the age of twelve may only be included in mediation where there are exceptional reasons for doing so. In practice at the mediation meetings themselves, the parties come together in a place that should preferably be neutral and thus not connected to buildings used by the police. The parties often meet at social services offices, premises used for after school clubs, community centres or other local authority premises, but this varies depending on the way in which the mediation projects are organised. The mediation projects lack a uniform organisational structure, however, although they are usually administrated by the social service. Responsibility for the mediation work is most commonly assigned to a social worker, whose work as a rule also includes other unrelated activities. In general there is a lack of information regarding the number of mediators working within a mediation project. However, the projects that have received financial support have submitted reports, and here the number of mediators varies between one (in small municipalities) and eight (in the mediation project run by the City council in Stockholm). The mediators are most commonly social workers employed by the municipality. A number of mediation projects also use so-called lay persons as mediators, however. In these cases, and with a few exceptions, the mediation project involves one or several social workers with responsibility for the work who then pay lay

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mediators a fee for mediating on a case by case basis. During the trial period in 1998, thirteen per cent of mediators were lay persons. The forms taken by collaborations between the mediation projects and other actors varies between different projects. It is the local police authorities which are asking the offender if he/she is interested to participate in mediation and they are therefore the most common collaborative partners. Many projects also collaborate with others such as prosecutors, judges, schools and victim support organisations, for example, or other voluntary organisations. These collaborations often take the form of informational or working meetings, study visits, seminars, etc.. It is usually the police or the social services that refer cases to the mediation projects. On occasion, cases are also put forward for mediation by schools and prosecutors. In Sweden Family Group Conferencing and school mediation are only found in isolated instances and are not always organised by the same individuals that are responsible for VOM. Mediations between spouses in custody disputes and other similar cases are dealt with by special units at the municipalities. The mediation meeting is usually presided over by a single mediator, but this varies between different projects. Some employ two mediators in mediation cases that are a little more complicated, or where a number of victims and/ or perpetrators are represented at the meetings. There are differences among mediation projects regarding their methods and approaches to the work of mediation. The Government is intent on increasing the level of uniformity among VOM projects in Sweden, but has not yet wanted to regulate this work in full detail. The projects that have received funding from the National Council for Crime Prevention are required, however, to mediate on the basis of the existing legislation. The national training program that has been formulated by the Council will provide an additional impetus towards an increased level of uniformity in the way mediation projects work in the future. The National Council for Crime Prevention will be producing a book on VOM which will present a number of recommendations, inter alia on the basis of the experiences gained to date in Sweden9.

4.1

Criticism of the existing organisational structure

There is at present no uniform organisational structure among mediation projects. Although the Government’s goal is that of making mediation work more uniform, the various mediation projects have nonetheless been allowed to take their own forms. The majority of mediation projects are run by the 9

“Victim offender mediation in Sweden in the twenty-first century” (Brottsförebyggande Rådet, 2005).

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municipalities’ social services departments, however, which is positive since it means that levels of basic competency among mediators are good. One disadvantage with this is that it is difficult for social workers to find sufficient time to devote to the development of mediation given their other duties. A further disadvantage is that many mediation projects are in place in small municipalities with a small populace and few crimes committed by young offenders. In these cases mediation really needs to be organised as a collaboration between a number of municipalities in order to be developed and made more efficient. The National Council for Crime Prevention is trying to encourage municipalities wishing to initiate the use of mediation to join forces with others in order to provide the work with a more solid foundation which will both enable it to be conducted with a greater level of continuity and facilitate the establishment of effective routines.

5.

FINANCIAL SUPPORT FOR MEDIATION ORGANISATIONS

Mediation has been financed by the municipalities themselves, with the exception of the 1998 trial year. The work undertaken by the National Council for Crime Prevention has meant that municipalities have been able to apply for and receive financial support to initiate new projects, however, or to develop existing ones. The additional funding that was available in 2003 amounted to 14 million SEK (approximately 1.5 million €) and a further 10 million SEK (approximately 1.1 million €) is to be distributed during 2004. No decision has yet been taken by the Swedish Government concerning the possibility of further funding. Mediation projects must otherwise be financed as part of the routine budget of the party bearing primary responsibility for the activities, along with that of possible collaborative partners. In the questionnaire survey conducted in 2003 by all 290 municipalities in the country, 104 municipalities reported that mediation was accessible within their municipality. However, only 17 municipalities reported more than 15 cases being referred for mediation during the year 2002, which means that mediation projects do not constitute a major financial burden for the majority of municipalities. As a rule, the mediation activities were included under the municipalities’ social services departments, and thus they were financed out of the municipalities’ routine budget. No information is available as to how large a proportion of this budget was devoted to mediation. In the spring of 2004, approximately 200 municipalities were estimated to provide some form of mediation work, but to date the extent of these activities still varies substantially between different municipalities.

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The majority of the mediation projects that have received financial support from the National Council for Crime Prevention are to be found in municipalities that already had or that had previously had mediation projects, even if these were often on a rather small scale. The size of the grants awarded varied between 30,000 SEK (approximately 3,250 €) and around one million SEK (approximately 108,000 €). The minor grants have been awarded for the development of mediation projects in small municipalities. The large awards have gone to the major cities, to mediation projects involving collaborations between several municipalities, or where a single municipality has assumed responsibility for the development of mediation activities in an entire region or has been awarded funding to assist other municipalities by providing guidance and other forms of support. The grants have been awarded for a single budget year. The financial support provided to the various mediation projects has not covered the total costs of these projects, but rather between approximately one-half and two-thirds of the costs. This central Government funding only constitutes a temporary measure and in the near future the municipalities will themselves have to assume responsibility for the financing of mediation activities within the framework of their routine operations. Providing funding to cover only a proportion of the projects’ costs is a way of ensuring that the work is not abandoned as soon as the central funding ceases. This had in fact occurred to a large extent during the period of the trial project, and on the basis of this experience, attempts have been made to keep this from happening again.

6.

SUSPECTED AND CONVICTED YOUTHS

Of all persons convicted for offences during the period 1975 to 2002, the proportion of youths aged between 15 and 17 varied between 8-13%. Opinions differ as to whether youth crime has really increased in Sweden. According to certain studies, as well as official statistics, there has in fact been a reduction, at least since 1995. Other studies, however, suggest that there has been an increase. One Swedish study has examined the prevalence of both crime and other problem behaviours on the basis of so-called selfreport surveys conducted biennially among students aged 15-16 between 1995 and 2001 (Brottsförebyggande Rådet, 2004). Between 5,300 and 8,200 students completed the survey questionnaire during the different years of the survey. The level of external attrition is estimated to lie at approximately 12%. The findings demonstrate that it was common for the students to have committed some form of theft at some point; shoplifting, or thefts from school or from their own homes. Over half

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of the youths surveyed reported having committed some form of theft over the course of the twelve months prior to the survey. More serious theft offences were less common. Nor were violent offences or drug offences (own use) particularly common, with prevalence levels for these categories of crime lying at around 10%. Other problem behaviours, such as truancy, alcohol use and fare-dodging were more common. Approximately 60% reported having been drunk, and 40% having played truant or travelled on public transport without paying. Boys reported committing offences more often than girls. The gender difference was greater the more serious the offences in question. This was not the case in relation to drug use, however. The study’s findings indicate that the proportion of youths who had committed thefts, vandalism and violent offences had diminished over the course of the period examined, with the decrease being noted primarily in relation to theft and vandalism. The proportion of youths who reported that they had not committed any offences at all increased somewhat during the period between 1995 and 2001. In 2003, a total of 98,821 persons were suspected of offences in Sweden. Of these, 12,971 (13%), were aged 15 to 17. As regards the gender distribution within this group, it was comprised of 9,441 boys and 3,424 girls. Thus girls accounted for 26% of suspects in this age group, which is a substantially larger proportion than that of women among suspects of all ages. The number of youths below the age of criminal responsibility (i.e. 15 years) suspected of offences in 2003 stood at a total of 10,646. Here the proportion of girls stood at 33%. The same year, a total of 113,752 persons were convicted of offences in Sweden, of whom 18,670 were women (16%). Of those convicted, 12,305 were youths aged between 15 and 17, of whom 3,062 were girls (25%). As shown in Table 4-1, shoplifting, thefts, assaults and petty drug offences constitute the most common crimes committed by both genders. Among the boys, vandalism, vehicle theft, unlawful driving and other traffic offences are also very common. Among the girls on the other hand, levels of misuse of documents (e.g., passports, identity cards etc.) are relatively high, with girls accounting for as many as 69% of convictions in relation to this category of offences. Girls account for 60% of shoplifting convictions. The reason for the relatively high total of convictions among girls in this agegroup appears primarily to be associated with theft offences, and in particular shoplifting, and misuse of documents. The proportion of girls among those convicted of petty drug offences, other theft offences and assault is also relatively high. The girls in this age-group are also responsible for a relatively large proportion of assaults, shoplifting offences, misuse of documents and petty drug offences in relation to the proportion of such

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offences committed by women of all ages. As regards the remaining common youth offences, the girls’ proportion of convictions is more in line with that of women in other age-groups.

Table 4-1. The most common offences featuring in convictions of youths aged 15-17 in 2003. Offences Girls Total youth N % 15-17 Assault 263 19 1,389 Threatening behaviour 33 21 154 Theft 304 26 1,189 Shoplifting 1,456 60 2,442 Serious theft 27 18 152 11 5 241 Robbery Vehicle theft 31 6 512 Sale of stolen goods 11 9 121 Unlawful use (of another’s property) 36 20 179 Vandalism 57 9 642 Misuse of documents 257 69 370 41 23 177 Violence/threats against public servants Unlawful driving 68 4 1,659 Drink driving 40 16 252 Petty drug offences 118 26 458 Prohibition on knives 8 3 227 Other traffic offences 52 10 495 Source: national crime statistics (Brottsförebyggande Rådet, 2004).

7.

OVERVIEW ON MEDIATION ACTIVITIES FROM THE TRIAL 1998 TO 2004

There has been some changes in mediation activities since the trial in 1998. In 2002 a total of approximately 980 cases were referred to mediation. There is no information, however, on how many mediations were actually conducted at that time. Since the autumn of 2003, when the National Council for Crime Prevention started distributing financial support to various Swedish mediation projects, the number of both cases referred to mediation and of actual mediations has probably increased. Since there is no central coordinator for mediation activities in Sweden, there are no statistics relating to the number of mediations conducted either. The statistics that are available come from those projects that have received funding from the National Council, and which have therefore undertaken to document their activities during the funding period.

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Over half the mediations conducted during the trial period related to shoplifting or vandalism offences directed at various companies, department stores, or shops etc. In these cases the crime victim was represented by a store manager or shop owner (see Table 4-1). The majority of the projects were organised within the social services departments of the municipalities, either being conducted in parallel with the routine work of these departments, or in a more free-standing manner. Two projects were organised by the police and one by a voluntary organisation. One-tenth of mediations related to violent offences against private individuals. In half of the mediation cases, the offender involved was between 15 and 17 years of age. The evaluation conducted in association with the trial period also demonstrated that a functional collaboration between mediation projects and other organisations and public sector agencies was essential if the project was to work. The most common collaborations entered into by the different mediation projects involved the police, the social services and prosecutors. The principal difficulties reported in relation to such collaborations involved the social services not being sufficiently committed to or not prioritising the development of mediation work. In addition, two different approaches to mediation could be distinguished. The first approach might be described as being focused on attempting to prevent youths from becoming caught up in a criminal career. These projects primarily mediated in cases of property offences against companies/shops and the offenders were often very young, under the age of criminal responsibility (15 years). The mediation meetings were short, of an informative character, and focused on the material consequences of the offence. The second approach concentrated more on conflict resolution and on the communication between the parties involved. These mediations for the most part involved offences against private individuals, and the offenders here were often somewhat older. The mediation meetings themselves were longer and were in general preceded by a preliminary meeting. Most of the mediation projects lay somewhere in between these two approaches. The mediation projects around the country which have received financial support from the National Council have also an obligation to document their mediation activity during the period of foundation. A mediation assessment protocol is to be completed after the mediation process for each case. The protocol contains data about the victim and the offender, the process from the crime event to pre-meetings, the mediation meeting and a contractual agreement, if any. The protocols are then sent to the National Council every third month. From September 2003 to July 2004 411 protocols have been sent to the National Council. Of all of the mediation projects with funding, 38 sent

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protocols. The others have not yet established their mediation activity. The number of protocols varies a lot, between one and 67. Some of the projects are consequently very active and those are the ones with an earlier established activity. Of a total of 411 cases referred to mediation 74% were carried through. In 21% of the cases, the process did not continue and in 5% the mediation was carried through in “other ways”. The reasons for not continuing the process were regrets from the offender or the victim, in some cases the parties changed their minds after the trial. Other reasons for not continuing were that the offender’s or the victim’s parents did not want their child to participate or that some of the parties did not attend to the mediation meeting. In the 20 cases of mediation defined as carried out “in an other way”, victim and offender had communicated indirectly through letter or telephone. In some cases the parties had met without a mediator or a school took over the mediation process. Table 4-2. The most frequent offences referred to mediation. Offences* N** Shoplifting 118 Assault 114 Vandalism 64 Theft, different types not specified 49 Threatening behaviour 34 Burglary, not specified 20 Molesting+ sexual molesting 14+6 Robbery, different types not specified 11 Prohibition on knives 5 Other offences 29 * Also including serious crimes and tries. ** One mediation can include several crime events committed by one single offender.

The most common crime among the mediation cases was shoplifting (Table 4-2). The attitude to this crime varies among the projects. Some of them focus on shoplifting concerning them to be very important with the attitude: “prevention is better than cure”. Others do not mediate in shoplifting cases at all, concerning them ineffective for both parties. The second large crime category is assault but it mostly includes not serious cases. Vandalism and different types of theft are other common types of offences that are referred to mediation. Theft and assault belongs to the more common crime categories in the official statistics of youth criminality of conviction. Vandalism is also a typical youth offence. Two other common crime categories in the official statistics but not in the mediation protocols are narcotics (not serious) and unlawful driving. Both of these categories can be concerned as victimless offences and therefore not suitable for mediation.

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Usually, only one perpetrator committed a crime against one victim. In barely 50% of the cases there were one single offender and in 30% there were two of them. Slightly two thirds were boys, which is proportionately a small share. That can be explained by the large amount of shoplifting cases, but also by many cases of assault and theft: crime categories where girls are over represented. About 56% of the offenders were in the age of recommendation, 15 to 17 years. The mean age was barely 16. About 25% of offenders was below the age of criminal responsibility (i.e., 15). According to the VOM Act there should be exceptional reasons for conducting mediation with children below 12, and this material shows only few such cases. In 81% of the cases there were only one victim. That can be explained partly by the high percentage shops, department stores, companies and other institutions. These represented about half of the victims. Of the private persons as victims were half men and half women. Slightly 50% were over 20 years. Of the total 207 cases in which the victim was not a private person, 75% were shops and department stores. The other cases involved schools, house owners, local authorities, traffic companies and sports clubs. Those who represented the victims were, when it was mentioned, shop owners, clerks, security officers, superiors etc. There were usually the police, 55%, referring the cases to the mediation projects. In 34%, however, the social service referred the cases. Pre-meetings were the more rule than the exception. In 75% of the cases, one or several pre-meetings were held before the mediation meeting. The most frequent participants were, in sliding scale: the offender and the victim, the offender with his/her parents and the victim, the offender with his/her parents, the offender, the victim and some supportive person such as friend, relative or contact. In almost 90% of the cases, one mediator carries out the mediation meeting. More than one mediator, is involved when more complicated cases or cases involving more than one offender or victim are treated. Sometimes there is also a trainee mediator participating in the meeting. It is very common that the offender’s parents take part in the mediation meetings. The victims parent’s are more seldom represented because of the high percentage of shops/department stores, companies, organisations etc. and the high percentage of adult victims. About 50% of the mediation processes were concluded by a contractual written agreement. Of these, two thirds were verbal agreements. In some mediation projects agreements in the form of contracts are the rule. Their view is that the contract is the closure of the mediation process. Other projects have a more modest idea in this matter and ascribe the restorative or

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healing process to the mediation itself. The contents in the contractual agreements can be divided into two main categories: agreements concerning the parties behaviour in the future and compensation agreements. The behaviour agreements are usually about not telling lies about each other, not to fight, to exchange greetings when meeting in the street etc., or on the contrary not to exchange greetings when meeting. One other common agreement in the category concerning shoplifting is a promise not to steal any more. The compensation agreements is either about financial compensation for the stolen or vandalised goods, or about repairing for the stolen or vandalised goods with working activity for a specified number of hours. In some agreements the offender should be doing both. In many notes in the protocols the mediators describe successful mediations with satisfied parties. Sometimes they tell about the parties’ feelings, for example that the offender was very regretful and apologised or that the victim has been very understanding or felt relieved afterwards. But sometimes different outcomes were observed: the offender was not sorry or the victim or a parent was aggressive. Those cases were however quite rare.

8.

FOLLOW-UP PROCEDURES AND CRITICAL ASPECTS

To date, hardly any evaluations of mediation have been conducted in Sweden. However, as was mentioned above the trial project conducted in 1998 was evaluated as concerning the way mediation was organised and the way mediations were perceived by the parties involved (Brottsförebyggande rådet, 2000). This evaluation showed that during the year of the trial period, 400 mediations were conducted distributed across a total of 32 projects. The cases mediated were very unevenly distributed across these projects, with four large projects accounting for 70% of the total number of mediations. The mentioned evaluation included two small-scale qualitative studies into the victims’ perceptions of mediation on the one hand, and the offenders’ perceptions on the other. Both these two studies demonstrated that the victims participating in mediation in cases of crime against companies/shops perceived mediation as primarily being for the offenders, whereas the victims participating in mediation in cases of crimes against private individuals perceived a greater sense of what might be termed emotional closure in relation to the crime-event. The evaluations came to the conclusion that VOM is more effective in cases of crime against individuals, both for the victim and in terms of providing the offender with the intended insight into the consequences of the offence.

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No scientifically based studies of reoffending levels have been conducted in relation to mediation in Sweden. The mediation projects that have received funding from the National Council for Crime Prevention document their activities, which will provide the information necessary to conduct an evaluation focusing on levels of subsequent re-offending. Swedish mediation projects differ from one another to a substantial degree both in terms of their organisational forms and the content of their activities. It is the goal of the Government to bring about a certain level of uniformity within the field of mediation in Sweden, in order to provide mediation that is both qualitatively sound and conforms to the principels of fairness. Three principal types of problem may be highlighted: 1. The organisational structure. It is important to ensure that the work of the various mediation projects is given a real impetus. This is not a problem for the projects that have become well-established, but instead primarily concerns those that have started more recently. For these it is important that tenable organisational forms are found, that functional collaborations are established first and foremost with the police in order to ensure a substantial flow of cases, and that mediation is integrated into a structure and does not become overly dependant on specific individuals. A large number of mediation projects have been discontinued as a result of being too dependant on a single person, usually a mediation enthusiast, who has then left the project, leading to its termination. 2. The financial element. The majority of the projects that were included in the trial program in 1998, and which were subsequently discontinued, were terminated for financial reasons. The funding ceased and the municipalities felt that they no longer had the financial resources necessary to continue with mediation work. The projects that have received funding from the National Council for Crime Prevention in the course of its current governmental commission in this area, are required to contribute to the funding of their mediation projects themselves. In addition, this funding is conditional upon amongst other things the municipalities specifying the ways in which they intend to integrate mediation into the routine work of the municipality. Many municipalities are experiencing financial difficulties, however, and mediation is not always among the most prioritised areas of municipality activity. There is once again a risk that certain mediation projects will not be able to continue their work if the external funding ceases to flow. 3. The mediators. A number of deficiencies remain in relation to the training of mediators. This however will hopefully cease to be a problem within the relatively near future since the National Council for Crime

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Prevention has now started to provide mediation training. There is also a high level of interest in attending these training courses. The professional mediators usually practice mediation as one among a large number of other tasks, which means that their work is rather fragmented. It may also lead to their mediation work not being prioritised and thus becoming overshadowed by their other tasks. There may also be a downside to the approach to mediation associated with these individuals: Since the professional mediators usually work within the social services and with young people, there is a tendency to view mediation as a method of social work treatment, which in turn tends to place the crime victim in the background.

9.

THE MEDIATORS’ PROFESSIONAL QUALIFICATIONS

The majority of mediators are professionals in related fields for whom mediation constitutes one part of their routine work, which is usually that of a social worker. These individuals have undergone three and a half years of training at the higher education level to become social workers, and often have extensive professional experience. It is usually recommended that mediation be conducted by so-called field social workers, and not by those whose primary work involves the exercise of public authority in various forms. Training specific to the task of mediation is not a requirement at the present time, even if it is recommended by the government. Otherwise there are no general requirements for any specific education or training of an academic nature, for example, in order to become a mediator. The Swedish mediation system also involves lay mediators. Whether or not to utilise lay persons is at present up to the individual mediation projects. More or less any adult could become a lay mediator, provided that he/she is deemed to possess the necessary personal qualities. There are no specific training-related or professional requirements. Given that mediation activities are becoming more widespread and are on their way to becoming a permanent part of the Swedish justice system, it is possible that special requirements and guidelines will in time be introduced. A national training plan for mediators was formulated in 2003. This contains basic training, advanced training and training for lay mediators. 1. Basic training for new mediators/mediation co-ordinators. This training program takes the form of totally 5 days divided into 2 sessions of 2 days each and one follow-up day. The second session takes place 6 months after the first and the follow-up day are arranged after a further six months. The reason to divide the training into 3 steps is that the

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mediators should collect experiences from their mediation work at their projects, to bring to the training for discussion and supervision. The course provides practical training in combination with theory and discussions relating to objectives and issues of quality. The conditions required for VOM are discussed, particularly in relation to current legislation and collaborations with representatives of different parts of the justice system. The theory of restorative justice and other theoretical aspects of mediation are addressed in a section of the course set aside for this purpose. The six-month gap between the training sessions is intended to provide the mediators with the opportunity to return home to their respective projects and practice mediation. When the training program participants then meet up again for the second of the two courses, they bring with them experiences which can be discussed. This training program is directed first and foremost at professional mediators and its focus is primarily practical. 2. Advanced training. This training program is organised in the form of a single two-day course. The course is more theoretical in focus and provides a deeper understanding of inter alia VOM, victimology, and theories focused on restorative justice. The course is directed at mediators/mediation co-ordinators with relatively substantial experience of mediation who are interested in the further development of their mediation projects. 3. Mediation training for laymen. This two-day training course provides practical training for persons who are to start working as lay mediators. The course relates primarily to property crimes and to relatively uncomplicated cases of violent crime. The National Council for Crime Prevention’s training programs were initiated in the autumn of 2003, and to date 12 basic training courses (part 1 and 2) and 2 mediations training for laymen have been given, involving totally 225 participants (190 participants in the basic training courses and 35 in training for laymen) . There are also a small number of other actors who offer courses on VOM. Three different universities today organise courses on different forms of mediation, although not on VOM.

10.

CONCLUSIONS

VOM for young offenders may be said to have undergone a major upswing in Sweden thanks to the work which the National Council for Crime Prevention has been commissioned to carry out in this area. Interest in mediation and in starting mediation projects has increased.

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The public also appears to have some knowledge of VOM and attitudes in general appear to be positive. A study conducted by a firm responsible for public opinion surveys during the autumn of 200310 included a number of questions about mediation. It was found that approximately 30% of the participants in the survey knew what VOM was. Many also felt positive about mediation and 80% of those who knew about mediation felt that it may assist the crime victim in working through possible problems that may have arisen as a result of the crime. Approximately 66% also believed that mediation may lead the young offender not to re-offend. Around half felt that it ought to be possible to sentence youths to mediation in the same way as to other justice system sanctions and slightly over half were of the opinion that mediation may constitute a sufficient sanction for young offenders. In connection with the work currently being undertaken by the National Council for Crime Prevention, levels of communication and collaboration between different mediation projects have increased. At the present time, six so-called model municipalities have been given the task of providing help and support to newly formed mediation projects around the country. Many of these newly formed projects organise study visits or seminars in order to obtain a better understanding of both organisational questions and issues relating to project content, collaboration with other agencies and so forth. There are also a number of projects with responsibility for developing mediation across a whole region, and thereby also ensuring that collaborations and communications function acceptably well. As mediation work becomes more well-established, levels of networking will increase between different projects around the country. The number of mediation projects in Sweden has increased and hopefully the work will become sufficiently well-established to survive when the state funding will cease. The financial aspect constitutes a problem, however, in many municipalities. Every municipality in Sweden has its own budget and itself determines which areas of work to prioritise. One possible solution to these financial problems would be for municipalities to engage in joint mediation projects, thus reducing the level of costs for the individual municipalities involved. Since VOM has as yet not become an integral part of the Swedish justice system, a number of problems of this kind remain to be resolved. A proposal as to where mediation might most suitably be located within this system has been recently presented in a governmental official report. The investigators suggested that mediation should have a more significant meaning in the Swedish justice system and that it should be one basis for nolle prosequi 10

Demoskop’s monthly survey of 1,000 randomly chosen individuals aged between fifteen and 89. These individuals constitute a nationally representative sample of the Swedish population on various demographic variables.

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(Statens Offentliga Utredningar, 2004). Thus mediation in Sweden is currently developing strongly, and we are very hopeful that it will become a well integrated element in Swedish society.

REFERENCES Nehlin, C., Lindström, P., and Svanberg, K., 1998, Medling vid brott. Om mötet mellan unga gärningsmän och brottsoffer, Kommentus förlag, Stockholm. Brottsförebyggande Rådet, 1999, Medling vid brott. Victim m offender mediation, Fritzes, Stockholm. Brottsförebyggande Rådet, 2000, Medling vid brott. Slutrapport från en försöksverksamhet, Fritzes, Stockholm. Brottsförebyggande Rådet, 2004, Nationell statistik över lagförda för brott, Stockholm. Brottsförebyggande Rådet, 2005, Medling i Sverige på 2000-talet (in preparation). Statens Offentliga Utredningar, 2000, Medling vid ungdomsbrott, Gotab, Stockholm. Statens Offentliga Utredningar, 2002, Medling vid ungdomsbrott. Betänkande av utredningen om medling vid ungdomsbrott, Gotab, Stockholm. Statens Offentliga Utredningar, 2004, Ingripanden mot unga lagöverträdare. Ungdomsbrottsutdeningen, Report 122, Gotab, Stockholm.

Chapter 5 VICTIM-OFFENDER MEDIATION WITH JUVENILE OFFENDERS IN NORWAY Siri Kemény -

1.

INTRODUCTION

Contemporary Victim-Offender Mediation (VOM) in Norway started out with Nils Christie’s seminal lecture, later published as a journal article, “Conflicts as property” (Christie, 1978). The core of his article revolves around crimes being redefined as conflicts between victims and offenders. These conflicts, he claimed, are stolen from their rightful owners by professionals like lawyers, psychologists etc., not to mention the state itself. Christie proposed to establish an alternative to the professional penal system where the parties in conflict (i.e. the victim and the offender themselves), take an active part in the process of finding a solution to their problem (i.e. the aftermath of the crime). The presentation of these ideas coincided with a general search in the late 1970s and 1980s for alternative ways of dealing with delinquency. Avantgarde bureaucrats and politicians alike, particularly the Minister of Justice at the time, eagerly took this opportunity. A report was made to Parliament focusing on criminal policy in general, and juvenile delinquency in particular. This report created the formal platform necessary to engage in alternative ways of dealing with conflict, which in practice mainly meant supporting VOM for juveniles. The Government established a five year project, “Alternatives to prison for juveniles” (1980–85), which was administered by the Ministry of Social Affairs. The aim of the project was to develop and test out new ways of handling juvenile delinquency if the age of criminal responsibility were to be raised from 14 to 15. Part of the project

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was a pilot in one municipality, testing out VOM as well as mediation in civil conflicts where juveniles were involved. The pilot project was organised under the child care service, in a small rural municipality. In 1983, after the pilot project had been completed and evaluated (Bay and Støle, 1983), the Ministry of Social Affairs invited the 435 municipalities in Norway to engage in project-based experimentation with VOM for juveniles. The government offered no extra monetary support to the municipalities, but in 1987 a National Mediation Service Centre was established to give guidance and practical support to the municipalities when establishing VOM, i.e. the mediation services. The Centre was first located in the Department of Criminology, Faculty of Law, at the University of Oslo, but was later moved to a College of Applied Social Sciences in Oslo. Throughout the 1980s 81 municipalities tried out VOM in an unsystematic and scattered way. Evaluation was undertaken later, in 1990, by the National Mediation Service Centre. The main findings were that few cases were referred for VOM. In 1988 the 81 mediation services received 266 cases, i.e. 3,6 cases per service (Nergård, 1990). It was also clear that in the municipalities where there was a full-time or part-time coordinator for the mediation service, more cases were referred by the police and prosecution authorities than where the mediation service was handled by a social worker, on top of his/her ordinary work at the social welfare office, or by an employee in the child care service. As mentioned, the mediation services also offered the possibility of mediation in civil cases. The scope was twofold: 1) to empower the local community in handling different kinds of conflicts and petty crimes, 2) to prevent conflicts from resulting in criminal offences by dealing with the conflicts at an early stage. Civil cases are mainly referred by one of the parties in conflict. Neighbour conflicts and family conflicts are the most common kinds. This means that most of the civil cases can be defined as community mediation cases. In 2001 the number of civil cases formed 11% (14 5% in 2003) of the total caseload handled by the mediation services. VOM was, in the experimental phase, an option only for juveniles, i.e. for offenders between 14 and 18 years. (Until 1991 the age of criminal responsibility was 14, when it was raised to 15 years.) Mediation was introduced as an alternative response to a fine, a conditional sentence, or a decision not to bring criminal charges. VOM was, at this stage, solely a diversionary measure. In the pilot project the referral of criminal cases to mediation was regulated by guidelines contained in a letter (1980) from the Director General of Public Prosecution (DGPP). In 1983, when all municipalities were invited to establish a mediation service, a circular letter was drafted and distributed to public prosecutors. In 1988 the DGPP proposed to the Ministry of Justice that mediation services should be

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regulated by law. The Parliamentary Bill concerning mediation services was passed in 1991. Meanwhile in 1989 the DGPP had issued a new circular letter that improved and replaced the former one from 1983. In the 1989 circular, it was no longer a condition that the offender should be a firsttimer; neither was there an upper age limit of 18 any more. The 1989 circular letter has since then been replaced by a circular issued in 1993. In spite of the small number of cases handled by the mediation services, Parliament unanimously passed the bill for the legislation of the mediation services. This means that the mediation services became regulated by a separate Act. For more on legislation and regulations, see section 3.

2.

ACCESSIBILITY AND INSTITUTIONAL FRAMEWORK

Today VOM is offered to every Norwegian citizen as a part of the regionally administered mediation service. Until 1 January 2004, there were 36 mediation services, most of them regionally organised, but with local volunteer mediators in each municipality. By parliamentary decision the mediation services have been reorganised into a fully governmental responsibility. Since 1 January 2004 the previous 36 mediation services have merged into 22 regional mediation services which correspond geographically with the police districts. The local link (to the community) is preserved through the appointed mediators. As there is no separate juvenile justice system in Norway (see section 3 below), VOM is part of the criminal justice system (CJS) in general. In spite of being part of the CJS, VOM has preserved the character of being a real alternative to the traditional penal sanctions like a fine or a suspended sentence. Criminal cases are referred by the prosecutors at the police level1, certain sorts of cases by the probation services (when mediation forms part of a community sentence, see section 3), or by the court when mediation is part of a conditional suspended sentence. Mediation has since 1991 been included in the professional responsibilities of the Ministry of Justice. As mentioned above, until 1 January 2004, local governments (at the municipal level) were 1

The prosecuting authority has three levels: The DGPP, the state prosecutors and the prosecutors at the police level. The latter are physically and administratively integrated with the local police, but professionally belong under the DGPP. In practice it is sufficient to know that the prosecutors at the police level have the discretionary powers to prosecute and make prosecutorial decisions in all kinds of everyday criminality. Referrals to mediation as an alternative to the traditional penal responses are decided on this level.

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administratively responsible for it, even though money was granted from the national budget. Since 2004 the mediation services have become a government responsibility in all respects. The mediation work is carried out by the public mediation services. Family Group Conferencing (FGC) and what is also called “network mediation” or just conferences have been tried out and developed in timelimited projects. It is likely that all mediation services will, little by little, also adopt conferencing as a method to apply when this is deemed to be the most suitable approach to resolve a conflict.

3.

LEGISLATION AND LEGAL PROVISIONS FOR THE APPLICATION OF VOM

Because no separate juvenile justice system exists in Norway, VOM can be offered to offenders regardless of age. Nevertheless, most offenders in criminal cases are teenagers or young adults. When a crime is reported to the police, the decision concerning whether the case will be prosecuted depends on how serious the crime is, and whether prosecution is considered to be of public interest. This latter evaluation may well vary with political fluctuations. Diversion can take different forms: a waiver of prosecution, referring a case to mediation, or referring the case to the child care service, when the offender is under the age of criminal responsibility. The legal base for VOM is found in the Act of March 1991 No. 3 relating to Mediation and Conciliation by the Mediation Service (earlier also wrongly mentioned as the “Municipal Mediation Boards Act” 1991), regulations issued in 1992, and a circular letter (1993) issued by the DGPP. Both the Act and the regulations were altered and updated by Parliament in 2003 to legalise and fit the reorganisation. The code of penal procedure (Criminal Procedure Act 1998), sections 67, 4th subsection, and section 71a, give the prosecuting authority at the police level discretion to refer cases to mediation. The Prosecution Instructions, Chapter 18A, further regulates the referral of criminal cases to mediation. Since 2001, VOM can also be applied as part of the content of a community sentence. The legal basis for this is “The Execution of Sentences Act”, passed by Parliament in 2001: the probation service (in dialogue with the offender) decides the content of the community sentence within the limits set by the court. The community sentence replaces the former community service order, and can be given instead of a prison sentence or a

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suspended sentence.2 A new section (53) in the criminal code explicitly mentions mediation as a special condition with a suspended sentence. This was proposed in a parliamentary bill [Ot.prp. nr.106 (2002-2003)] that came into effect 1 April 2003. Although the option was also available earlier, this legislation made it explicit. When guilt is proved in a criminal case, the prosecuting authority can decide to refer the case to mediation, see section 71a in the Criminal Procedure Act, and the circular letter of the DGPP, R 2581/93, part II – No. 2/1993. According to the circular letter, the case must be deemed “suitable”. A typical case would be theft, vandalism, joyriding and violence (minor assaults) arising out of a preceding conflict. Mediation in these kinds of cases is an option which is an alternative to the traditional penal sentences, such as: a decision not to proceed, a fine or a statement to the court of a suspended sentence (and an expectation of such a decision by the court). As mediation is voluntary, both (or all) parties must consent to it, and agree to the factual circumstances of the offence. Suitability of cases also depends on whether a specific person can be identified as a victim. Criminal cases can in general only be referred by the prosecutors. At present there is a pilot project with 71 (out of 364) police inspectors who have been given the discretion to refer certain kinds of criminal cases (theft and vandalism) to mediation. The rationale for this 3-year experimental project is: 1) to stimulate the referral of criminal cases to mediation, 2) to develop time-saving procedures in the CJS, 3) to lessen the caseload of the prosecuting authority. The project will run until 31 December 2006. If the effects of the project are positive, all police inspectors are likely to have the discretion to refer simple criminal cases to mediation. Judges can refer cases when VOM is to be applied as a special condition with a suspended sentence. Because mediation is voluntary, the parties must consent to mediation prior to trial. When mediation is applied as part of the community sentence, the case is referred to mediation by the probation service. VOM as part of the “crime prevention content” in a community sentence is not explicitly mentioned in the legislation, but is mentioned as a possibility in further regulations by the Ministry of Justice. Being a recent

2

A community sentence may be imposed for acts punishable by imprisonment for a term not exceeding six years. The sentence shall determine the number of hours (30 – 420) and the period for its execution. It is served in liberty, and its execution shall in general not exceed one year. The court may impose conditions to the effect that the convicted person shall during the execution period comply with provisions made by the probation service as regards place of residence, work, training or treatment, or shall be banned from associating with specific persons. VOM can also be part of these conditions, but on a voluntary basis. The community sentence replaces the former community service order. The community service order could only last the number of working hours imposed by the court.

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Being a recent arrangement it is not fully developed, but there have already been several cases where this option has been used. Before concluding this section, it seems important to evaluate the appropriateness of current legislation. First and foremost, one should note that the benefits overshadow by far any possible disadvantages and problems. The legislation that made it compulsory for municipalities to establish and run a mediation service has been of inestimable importance to implement VOM. It is of utmost importance that the Act from the beginning has stated that the funding is a government responsibility. The legislation concerning mediation services thus institutionalises VOM in a positive way. A disadvantage that is worth mentioning is that the DGPP’s circular letter regulating the referral of criminal cases to mediation mostly restricts mediation to less serious cases, as a diversionary measure. In these cases, VOM is implemented as an alternative to punishment. Voices have been raised that it is time that the DGPP revised the circular that regulates the referral of cases to mediation, and that for the future more serious cases (of violence) should also be allowed to be mediated. VOM has quite a different status with the prosecuting authorities today from when VOM services were established, and most likely it would be met with understanding if the DGPP also allowed somewhat more serious criminal cases to be referred to mediation. Another disadvantage is that mediation is not available at every stage of the criminal justice process, as recommended by the Council of Europe in their recommendation No. R (99)19 concerning VOM. There is a rarely used option, however, of mediating a case before sentencing or before the investigation is finished, if it is made explicit that the mediation service does this on a purely civil basis. There are a few examples of such cases, and these have mostly been referred by the parties themselves, or the mediation service has offered assistance to juveniles in cases of violence in a school setting. Mediation in these instances has no formal bearing on the criminal justice process or criminal justice response.

4.

ORGANIZATIONAL STRUCTURE AND CERTAIN PROCEDURES OF THE MEDIATION SERVICES

In this section, the organisational characteristics of VOM services are discussed. Specifically, the source of financial support, leadership, number of mediators, localisation of mediation practice and referral of cases are examined.

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Since the 1991 legislation, the mediation services have been mentioned in a separate chapter in the state budget. They are indeed fully funded by the state. Money is allocated according to the number of inhabitants of the region where the service operates and the number of cases mediated in the previous year. The total grant to the 22 mediation services and the National Mediation Service in 2004 was 36 million Norwegian kroner (€ 4.352.941). According to the Mediation Act, section 2, and the regulations, section 5, a (full-time) employed coordinator/head of office has the responsibility of administering the mediation service. The smallest office has only one employee, while the largest one (covering the capital Oslo and surroundings) has ten. Coordinators are government officials, accountable to the National Mediation Service (small directorate), while the National Mediation Service is accountable to the Ministry of Justice. The mediation sessions normally take place on the premises of the mediation services or, if this is not possible because of geographical distance, premises of the local municipality are used. The mediation services administer the cases, and the mediation work is undertaken by volunteer mediators appointed by the mediation service in each case. Altogether there are 650 mediators in Norway belonging to the mediation services, and appointed locally by them. The 22 regional mediation services each serve on average 22 municipalities. Each service has mediators who live in different local communities in the region. It is regulated by law that the mediators have to be volunteers and that they will receive a symbolic payment per hour, and have their expenses (telephone calls, travel costs) covered. The average workload per mediator nationally is about 1,5 mediations per month, sometimes more, sometimes less. As a rule, one mediator conducts the mediation. But, as more complicated cases are being referred for mediation, it has become common practice for two mediators to be involved. Often the coordinator picks two mediators who complement each other with respect to gender, age, particular competence and also ethnicity when it is deemed appropriate. As being a mediator is a voluntary position, people cannot make a living from it, which means that mediators need to have other work, and thus they represent different professions. Mediation is done in addition to normal paid work, and in the mediators’ spare time.

Case closed.. Report to the prosecuting authority about fulfilment of the agreement. The parties are informed that the case is closed. When agreement has been fulfilled, a crime is not registered on the criminal record.

The case is reported to the police and investigated. If guilt is held to have been established, the prosecuting authority decides whether the case is suitable for mediation. If so, the case is referred to mediation after the parties have consented.

Yes

The mediation service keeps the case open until the agreement g has been fulfilled.

No

Agreement approved? Yes No

The mediation takes place on neutral ground in the local community. The mediator is in charge of the process. The mediation starts with the criminal charge. If an agreement is reached, it is written down, and the mediator decides whether it can be approved.

Another mediation? The case is returned to the prosecuting authority (police level) with the information that agreement was not achieved, or that the agreement was not approved.

Renewed mediation?? Return to the prosecuting authority?

Yes

Withdrawal from agreement?

The mediator contacts the parties, and arranges separate preparatory meetings if needed, then arranges the mediation.

Figure 5-1. Referral of criminal cases.

The mediation service asks for a report. Breached agreement is reported to the prosecuting authority.

No

Agreement fulfilled?

Coordinator of the mediation service is responsible for the registration and the reviewing of the case. If the parties’ consent is lacking, this is checked. Mediator(s) are appointed and the case is assigned to the mediator(s). The parties (victim and offender) are informed.

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Criminal cases are first and foremost referred from the prosecuting authorities at the police level. The referral procedure is regulated by law, including the duties of the prosecuting authorities and of the mediation services. The mediation services have both formal and informal communication (telephone conversations, meetings, seminars, conferences) and cooperation with the police and the prosecuting authorities at the police level. In general the climate of communication with the police and the prosecuting authorities is good, and it has developed in a positive way since the modest start of the mediation services. During the past year the mediation services and the probation services have also focused on establishing closer cooperation. Cooperation with the child care services is also important, but varies in quality and regularity from one region to the other. Schools and social services are involved when needed, and the mediation services have over many years spent much time and effort giving systematic information to these institutions about what the mediation service is and what kind of service and assistance they can offer. The flow chart in Figure 5-1 shows the referral of criminal cases and their procedure through the mediation service. The figure shows the flow of a criminal case that is referred to mediation as an autonomous, but not punitive, response. When mediation takes place as part of a community sentence, the case is referred by the probation service. When mediation is a special condition with a suspended sentence, the court refers the case. The mediation service as a rule reports back to the sender if an agreement was reached or not.

5.

CATEGORIES OF JUVENILE OFFENCES

The numbers reported here pertain to the national level, as all inhabitants of Norway have access to VOM. In the criminal statistics for 2001, 11 persons from 5 to 17 years of age3 were charged with a criminal offence. For the age category 18 – 24 years, the number was 23,314. This gives a total of 35,202 charged persons in the age bracket 5 – 24 years. Referrals to mediation services and outcomes of mediation In 2001 the mediation services received 5,520 cases of criminal offences for mediation (in 2003: 6,665). 2,598 of these were offences committed by juveniles under the age of criminal responsibility (i.e. under 15). When these cases are mediated by the mediation services, they are classified as “civil 3

Statistics Norway operates with the following age bracket in the criminal statistics: 5-14, 1517, 18-20, 21-24, 25-29, 30-39, 40-59, 60- . This indicates that persons below the age of criminal responsibility (15) are also reported to the police, but not punished.

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cases”. Unlike the criminal cases, this fact means that if the cases are not resolved by VOM, it will not produce any consequences in the CJS. The remaining 2,922 cases consist of 2,069 offences committed by persons from 15 17 years of age age, 700 committed by persons from18 from18 224 years, and 153 are crimes committed by persons above this age. To complete the picture, it should be mentioned that the parties in the 614 civil cases mediated by the mediation services are mainly adults. Figure 5-2 shows the proportions of different types of cases referred to mediation. vandalism

23%

shop lifting

21%

violence

10%

serious theft

7%

theft

7%

bullying, defamation, menace

5%

economical crimes

5%

other crimes

5%

neighbour disputes

4%

other conflicts

4%

family disputes burglary

3% 2%

stealing motor vehicle

1%

several offences in combination

1%

Figure 5-2. Categories of cases referred to mediation.

In 2001 approximately 4,500 of the referred criminal cases were actually mediated. In 91% of the cases mediated, the parties came to an agreement, and 95% of the agreements were fulfilled. The sorts of agreements were: monetary compensation (41%), work (21%), reconciliation (21%), monetary compensation and work (7%) and miscellaneous (10%). Follow-up procedures VOM in Norway has only been evaluated to a certain extent. The services were evaluated in 1990 (Nergård, 1990) and again in 1996, two years after all the mediation services had been established at the national level (Dullum, 1996). The evaluations include structural and organisational aspects, as well as the degree of the participating parties’ satisfaction with

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satisfaction with mediation. The mediation services themselves decided to evaluate this. The reports show that a high percentage of parties were satisfied with the mediation process, i.e. the way mediation was carried out as well as with the outcome. Some modest mapping of recidivism has been done by students and mediation services in cooperation (unpublished). The findings are not statistically significant, but the trend is the same as in international research – it seems as if recidivism is slightly lower with VOM than with the traditional penal responses (Umbreit, 1994). It should be pointed out that current practices have been at times criticised. Prosecutors have criticised the fact that agreements sometimes may take a long time before they are fulfilled (e.g. one year). In practice this usually concerns either compensation agreements because juveniles may need time to save up the necessary amount of money to be paid, or working agreements, if the juvenile has to do the work during school holidays. This criticism has a dual focus. For one, it is impractical for the prosecutor not to be able to close the case once and for all, but to have to wait for the fulfilment of the agreement. In addition, an agreement of long duration may have a detrimental effect because the juvenile offender may experience fulfilling the agreement over time as additional punishment.

6.

THEORETICAL FRAMEWORK OF VOM

As mentioned in the introduction, the mediation services are based upon the ideas and values presented by Nils Christie in 1977. The Parliamentary Bill (1989-90) concerning the establishment of the mediation services reflects this fact. As arguments for establishing mediation services, the following principles and considerations were listed: – Strengthening the local community’s ability to resolve minor offences – returning the conflicts to the people, without weakening the legal safeguards. – Adding to the diversity of possible responses by the CJS. – Simple and rapid handling of cases. – A rapid and concrete response towards the individual (perpetrator). – A response with some impact, which is also educational. – The parties themselves take part in resolving the issue. – Finding individual solutions. – Contributing to a real resolution of the conflict. – Paying attention to the victim, including the possibility of having compensation paid rapidly.

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It is worth noticing that the Act was unanimously agreed upon and passed by Parliament. Regardless of political affiliation, the parliamentary representatives were able to agree more or less strongly on the underlying principles and considerations, which harmonise with our humanistic tradition in general, but also with particular regard to our justice system.

7.

CHARACTERISTICS AND JOB DESCRIPTION OF MEDIATORS

The recruitment of mediators is regulated by the Act and the regulations concerning mediation. Being a mediator means providing a public service. Mediators are appointed locally by the municipalities for a four year period. Prospective mediators have to apply for the office, and personal suitability is the most important criterion in making appointments. There is no requirement of formal education to become a mediator. As mentioned, it is personal ability that counts. Mostly, however, the mediators are welleducated people like teachers, lawyers, social scientists, people working in business, former police inspectors, former general managers or directors and craftsmen. What is lacking, are people with little formal education - they are rarely to be seen as mediators. A basic course consisting of four days’ training divided into two sessions of two days each, i.e. 30 hours, is compulsory for becoming a mediator. Recently the training for mediators has been revised. The training is run by local coordinators together with coordinators who have had special “training for trainers” (instructors). The training includes many practical skills through role-playing and exercises aimed to enhance awareness and sensitivity concerning situations that often arise during mediation. The mediators receive continuous supervision from the coordinators, and they take part in meetings and seminars several times a year to discuss actual problems arising in mediation, and to exchange experiences and knowledge. The mediators are formally appointed by representatives of the municipal councils and the police, together with the coordinator of the mediation service. The appointment takes place when the compulsory training has finished. The training course is helpful in deciding whether mediators are suitable or not. The mediators of each mediation service have regular communication with each other at meetings and seminars, as mentioned above. From time to time regional seminars are also arranged, for mediators in a certain region. This means that mediators from different mediation services meet and communicate. It might be of interest to the reader to know that the coordinators of the mediation services have lots of formal and informal

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communication with each other. They have also formed their own network to work on common tasks and interests concerning professional and administrative issues. This network, or forum, has also been the coordinators’ mouthpiece to the Ministry of Justice. With the reorganisation, the need for this kind of contact and communication has changed. In part, the trade unions have replaced the forum, and the fact that the mediation services can be instructed by the recently established National Mediation Service makes a difference. Having become one organisation (although with different levels) it should be easier to take care of internal communication than previously. When the coordinator has picked a mediator for a certain case, the mediator cannot be instructed by the coordinator how to prepare and conduct the mediation. According to the law, the mediator is obliged not to sign an agreement if it is very unfavourable to one of the parties. This is to prevent, for instance, a young offender and her/his parents agreeing to an unfavourable, unrealistic and maybe unjust agreement, only to reach a prompt conclusion of the case.

8.

CONCLUSIONS

VOM has now been available for all inhabitants of Norway for over ten years, and so far this has been a positive experience that should be developed further. The mediation services have been a valuable contribution to society and to the CJS but without legislation and government funding, the development of VOM, mediation in civil cases and now also restorative justice in a broader sense, would not have seen the light of day in Norway. We should also not forget that the hard work of dedicated people is an important factor in the relative success of the mediation services. It will be important for the future to keep up the critical discussion about how the practice of VOM and restorative justice in general ought to be developed. The Norwegian model has some valuable aspects that might add positively to our democracy. But such a development must be wanted and stimulated, and it is not obvious that there is political willingness to move in such a direction. An important principle in the Norwegian model is that the mediation must be undertaken by volunteers, i.e. lay persons, and it also differs from most other countries in that VOM was introduced as an alternative to punishment. This fits well into the idea of giving the conflicts back to the people, thereby empowering them and counteracting the general alienation in modern society. This alienation, amongst other causes, could have to do with the strong development of professions during the 1960s and 1970s, and

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the general development towards letting experts in different fields take care of more and more tasks and problems on behalf of the citizens. Looking back, it could be said that this is perhaps a result of the paternalistic welfare state; the social security and welfare system has had the negative effect of disempowering citizens, communities and civil society, making them less competent to take care of their own lives, and more dependent on the state and the expert society. In addition, the last 15 years of globalisation have downgraded the concepts of community, solidarity, responsibility and caring, while so-called authenticity and realisation of the individual’s true potential is being strongly focused. A question to be discussed could be: Can VOM and restorative justice have the spin-off effect of contributing to the revitalisation of (local) democracy? If the answer is yes, how can such a development be stimulated, rather than the mediation services and VOM becoming co-opted by the CJS? How can we counteract the possibility that VOM becomes nothing more than an expansion of the penal system, i.e. netwidening in a negative sense? Rather we want the CJS to adopt the spirit and values of Restorative Justice, adding to a strengthened, more vital democratic society and viable local communities that will hopefully also have better control of criminality as a result. Lasting societal success for restorative justice and VOM cannot be guaranteed. An important factor in the future success of restorative justice in Norway is continued critical self-reflection amongst people working in the mediation services. We need to develop and maintain a sound practice that should be continuously reflected upon, to ensure that VOM is not co-opted by the CJS. This and visible practical results are crucial factors in making restorative justice and VOM the preferred option for society and its policy makers in general, and the CJS in particular.

REFERENCES Bay, T., and Støle, B., 1983, Konfliktrådet i Lier – 2 års erfaringer, Sosialdepartementet, Oslo. Christie, N., 1978, Konflikt som eiendom (Conflicts as Property), in: Som folk flest, Universitetsforlaget, Oslo. Dullum, J., 1996, Konfliktrådene, Institutt for kriminologi, Universitetet i Oslo. Nergård, T., 1990, Slik har det gått med konfliktrådene, Diakonhjemmets Høgskolesenter, Oslo. Umbreit, M. S., 1994, Victim meets Offender. The Impact of Restorative Justice and Mediation, Criminal Justice Press, New York.

Chapter 6 VICTIM-OFFENDER-MEDIATION WITH JUVENILE OFFENDERS IN FINLAND Ossi Eskelinen and Juhani Iivari -

1.

INTRODUCTION

In the 1970s and 1980s, Finland witnessed the emergence of a reform ideology named “neo-classicism” in reference to the renaissance of some of the core values of the old classical school of criminal law theory. Specifically, the values embodied in this reform are summarized as follows: punishment is used for expressing, maintaining and strengthening a system of norms. Thus, punishment must be seen as just and legitimate. Neoclassicism emphasizes the value of a straightforward penal system in which each criminal act corresponds to a specific set of responses, and this set is not qualified by knowledge and understanding of the conditions (e.g., social background) leading individuals to offend. Thus, the judge passing sentences is not supposed to make assessments of the offender’s or victim’s need for treatment or rehabilitation1. Evidently, the penal system is supposed to be as simple as possible and contain only a few alternatives, because clarity and simplicity increase predictability and the role of legal safeguards. However, the classical criminal justice approach came under heavy criticism in the 1970s. This criticism was mostly directed to the neoclassical ideology of equal treatment that obscures factors such as the unequal social position of the offenders, and fails to take into account the convicts’ underprivileged background as a factor affecting their social behaviour. In addition, the neoclassical ideology of punishment was considered to work in

1

For more information, see Lappi-Seppälä (1996: 331-334).

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the interests of the societal power structure, while disregarding the needs of the poor (Viirre, 1977; Iivari, 1982). Moreover, in response to practical criminal policy making, many researchers, social workers and officials in the late 1970s began to inquire about the role of rehabilitation and reform work in Finnish criminal policy. This criticism concerning coercive treatment resulted in the request that criminal policies distinguished between repressive and punitive measures on the one hand, and supporting and reforming measures on the other. But this was not sufficient. In criticizing neoclassicism, attention was paid to the circumstances of crime and the social needs manifested by it. At that time, it was strongly argued that punishment was not the answer to crime. The prisons continued to be overcrowded in Finland, which on its own counted the same number of prisoners as did all the other Scandinavian countries together. There was solid evidence that aspects of rehabilitation were absent and that the real needs of convicted people were rejected in the criminal justice system. Finally, some critics among criminal-policy makers and members of the Lutheran Church of Finland began to promote ideals of abolitionism as well as the implementation of alternative measures, such as mediation between victim and offender. These proposals were influenced by international debate on alternatives to the traditional criminal justice system approach to criminal behaviour. Meanwhile, some models of mediation used in the USA and Canada were presented at an influential criminology seminar held in Norway in the late 1970s. Researchers and practitioners from Finland attended this seminar (Viirre, 1981). Earlier, in 1977, a Norwegian Professor of criminology, Nils Christie, had given a lecture on “Conflict as property”. In short, Christie stated that the criminal justice system itself had “stolen the conflicts of people” and that these conflicts should be given back to people, i.e., to the parties involved. In Finland, discussion on alternatives for criminal policy combined these two ideas and suggested that giving conflicts back to the people involved could be very effective (Christie, 1977). These ideas paved the way for the first experiments with victim-offender mediation (VOM) in Finland. The first mediation project started in the City of Vantaa in 1983 and 1984 in the form of an action-research project and was initially financed by the Academy of Finland and the City of Vantaa. As of 2000, a countrywide inquiry indicated that there was no uniform model available in Finland for organizing mediation. The most common arrangement was to organize mediation as an inherent part of the duties of social welfare officials employed in youth affairs units (18.4%). Another usual arrangement was to rely on various types of contracts, purchasing mediation services from

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external entities (16.4%). Of the municipalities that responded to our inquiry, 34 (7.5%) had their own mediation office. A total of 14% of the municipalities indicated that they had organized mediation in some other way. These municipalities typically used a system in which a municipal official acted as a contact person for mediation, referring occasional mediation cases to mediators acting in the municipality on a voluntary basis. Of all municipalities, 35% indicated that they had not organized the mediation of crimes in any way. A total of 8.8% of all municipalities failed to respond to the inquiry. At that time, 72% of the total population had a chance to participate in mediation if need be. In 2002, the Advisory Committee of Mediation set up by the Government proposed that an act on organizing mediation should be adopted in Finland. This act should assign the general management, guidance and control of mediation activities to the Ministry of Social Affairs and Health. Provincial State Offices would be responsible for ensuring the availability of mediation services within each province. Such offices would have the responsibility for providing mediation services in cooperation with municipalities. In order for mediation services to be provided, each municipality should sign an agreement referred to in Section 2, Subsection 2 of the Municipality Act (365/1995) with the respective Provincial State Office. In this agreement the municipality would commit to providing mediation services for its inhabitants. Municipalities may arrange the mediation activities on their own or together with other municipalities or they may purchase mediation services from other municipalities or a relevant organizations. The State will reimburse the municipalities for the service provision on grounds that were to be defined by the Ministry of Social Affairs and Health. At the time of writing, the Government of Finland has not yet approved an act concerning the organization of mediation services.

2.

LEGISLATION

The age of criminal responsibility in Finland is 15 years. Children under this age are to be directed according the child protection law in social care. Young offenders between the ages of 15 and 17 are called “young persons,” and offenders between the ages of 18 and 20 are called “young offenders.” The basic principle is that young persons and young offenders are treated partly under criminal justice and partly under social welfare systems at the same time. So legislation concerning young offenders is a so-called mixed system because it included criminal law and social welfare acts. In the criminal justice system both groups have special status compared to adult offenders. For example, young persons and offenders enjoy mitigated

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measures in many respects (e.g., more conditional sentencing and shorter prison sentences, if any). As for the criminal code, a separate law on young offenders has been in force since the 1940s in Finland, creating, for example, non-prosecuting and non-sentencing procedures and youth prison sanction. But once more the law on young offenders does not regulate all treatments directed for young offenders. There has been a tendency to regulate punishment and other legal consequences for youngsters in the context of common criminal law and criminal process law. In addition to this, there exists a separate law concerning youth punishment that entails new kinds of sanctions and provisions. These provisions include training and community service, and are currently in part in their experimental phases. In summary, separate laws and regulations in penal law and criminal procedure give reason for much mitigation for young offenders in prosecution and sentencing process. With respect to mediation legislation, section 15a of the Decree on the enforcement of the penal code has specifically recognized the value of mediation in 1997. The fact that no special proceedings within the realm of prosecutorial functions have been institutionalised raises the question of how such mediation should be furthered. The process of organizing mediation is left to institutions outside the criminal justice system. The role of criminal justice officials, especially that of the prosecutor, is limited to referring cases that he or she deems suitable for VOM. Secondly, no formal conditions for non-prosecution have been detailed with respect to results and consequences of the mediation process. Mediation itself may well serve as a reason for non-prosecution. The process may also fail due to an unwilling victim even though the offender would like to mediate. In addition, the prosecution may well take into account the sincere attempts to start a mediation process. Formally a failed mediation is not described by the wording “mediation between the offender and victim” but by the wording “the action taken by the offender to prevent or remove the effects of his/her offence” (Lappi-Seppälä, 1996: 358-359). In principle, the courts may similarly take into account mediation, or the actions taken by the offender to mediate, in considering the possibility of waiving the sentence or reducing the sanction.

3.

ORGANISATIONAL STRUCTURE OF VOM CENTRES

According to a last countrywide inquiry (Iivari, 2001), 255 municipalities out of the total 452 municipalities in Finland were equipped to offer mediation services, at least in principle. As previously mentioned, and as

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shown on Table 6-1 below, the mediation offices are primarily supported by the municipalities, which either offer a service of their own, or they designate other organizations as the service providers, and pay for such services under various arrangements. In addition, federations have been formed by small municipalities for the joint purchase of these services from a neighbouring large municipality. Finally, an organization operating in a major city may sell mediation services to smaller municipalities nearby. Table 6-1. Organisation of VOM in Finnish municipalities in 1999. Way of organizing Municipalities N % Office of their own 34 7.5 Purchasing from another municipality 36 8.0 Purchasing from a NGO 38 8.4 Officials (additional post) 83 18.4 64 14.2 Other way No possibility to mediate 157 34.7 Total answers 412 91.2 No answers 40 8.8 452 100 Total

Cases managed % 72 4 17 2.4 4.6 -

100

Despite the apparent wide distribution of mediation services, the use of mediation was not as extensive as it may seem because cases were regularly mediated only in 145 municipalities in 1999. The number of people living in these municipalities represented 71.7% of the total population. The absence of mediated cases in the remaining municipalities cannot be merely explained by variation in criminality rates. It should be mentioned, for example, that the offices do not generally have adequate resources at their disposal. In big cities, the offices may have as much as three employees, one executive manager and two clerical personnel, but often the staff consist in an executive manager and a clerk. In smaller or more peripheral locations, mediation offices only has one employee, who may also perform other municipal duties, such as debt counselling, youth social-service work or welfare for substance abusers. The limited resource available for mediation is a problem that affects the quality and development of mediation activities in Finland. In addition, several respondents believed that inadequate information exchange among the police, the prosecutor and municipal authorities was one of the main reasons why cases were not referred to mediation. Despite these issues, however, smooth cooperation with the authorities from the beginning has meant that, for example, the police, prosecutors and courts have now a quite positive attitude to mediation and collaborate with mediation offices at several levels. Open and honest negotiations on the terms and rules of mediation, especially at the initial stages of mediation,

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had a positive impact on cooperation with the authorities. Since the parties have honoured these terms and especially because the authorities have seen the positive results, it is natural that mutual trust has been reinforced.

3.1

Case selection

The mediation offices of municipalities or other organizations offering mediation decide independently the kind of cases to deal with. As a consequence, practices vary from one office to another. For example, in some municipalities, the focus is on young offenders, whereas the opportunity to take part in mediation may be also offered to adult offenders in other municipalities. In addition to the type of participant, the type of crime is also important for selection. For example, crimes involving domestic violence are considered a high priority by some municipalities, whereas they are completely excluded in others. Depending on the case, mediation may be linked to other authorities, communities or organizations as well. In acts of vandalism, mediators cooperate with the city real estate office, insurance companies and housing companies in order to implement work service to compensate for the damage done. This means that mediation is arranged not only between victim and offender in Finland, but also between single offenders and communities, corporations and other organizations, as well. For example, when the victims are organizations instead of individuals, a financial manager may embody the organization during the process.

3.2

VOM and the criminal process

The mediation process may start at any moment between the commission of the offence and the execution of the sentence. The process is summarized below. An offence is usually followed by a report to the police. After the investigation conducted by the police, the case is taken to the prosecutor. The following are all the possible stages at which to the mediation process may start: a) The victim or the offender may independently contact a mediation office immediately after the offence, whereupon the mediation office contacts the other party. b) The parties may contact the mediation office during the police investigation either following police advice or on their own initiative. c) The prosecutor, upon being assigned the case, may inform the parties that they have a certain amount of time (e.g., eight weeks) to resolve the problem between themselves. The prosecutor communication does not

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ensure that a settlement will definitely lead to discharge, but it entails a very strong presumption that this will be the case. This is particularly frequent in a number of municipalities. The mediation process starts with preliminary contacts. One member of the mediation office contacts both parties separately and inquires about their willingness to participate in mediation. If all parties agree to do so, the first mediation session is held. For the majority of the cases this will suffice, but if needed, more sessions are arranged. During the mediation sessions the mediator’s principal role is to mediate. By definition, this means that he/she does not try to lead the parties into one direction or another, but takes an impartial role and tries to ensure that each party understands the other party’s viewpoint, thereby coming to an agreement. However, the role of the mediator depends on the situation. In cases in which the parties are unequal in terms of negotiating resources and when it is apparent that the outcome will be unfair to either of the parties (in comparison to the probable outcome of the court proceeding), the mediator intervenes and tries to balance the situation. If mediation is successful, a written contract is prepared. The contract includes a description of the offence, the content of the reparation (i.e., how the offender has consented to repair the damage), place and date of restitution as well as the consequences of a breach of contract. The events following a successful mediation may vary largely depending on the type of offence (e.g., complainant offence/non-complainant offence), how serious the offence was, and who is the acting prosecutor. In complainant offences, a successful mediation automatically results in the prosecutor dropping the charges. In non-complainant offences, however, the situation is more complicated. Although the principle of legality prevails in Finland, there are exceptions to this rule. The prosecutor can use certain discretion and can decide to drop the charges in consideration of the outcome of the mediation. In this decision, the type of offence as well as its gravity plays a central role. The characteristics of the offender and the context that generated the criminal conduct weigh on the prosecutor’s decision. For example, age, maturity level of offender and slight negligence of crime are arguments for waiving the case. Even when the prosecutor does not drop the case, the result of the mediation process still has a legal significance. First, a signed agreement releases the court from examining the matter with respect to compensation for damage. In other words, the agreement is a binding document from the court’s perspective. In addition, mediation may affect the sentencing decision of the court. It can totally refrain from sanctions, if the requirements apply. Finally, it can mitigate the final sanction.

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An essential aspect of mediation concerns supervision of the contract. The mediators authenticate and sign the contract. The contract may also be authenticated in court, making it valid and ready to be executed. In addition, the contract stipulates that the mediators act as supervisors of the execution of the contract. For example, in case of failure to comply with a payment schedule, the mediators contact the offender and negotiate a new payment schedule. If the offender neglects his/her obligations entirely, the victim may demand that the contract is implemented and the sum is collected. If both or one of the parties fail to respect the agreement, the contractual proceedings are terminated, and the parties are notified that their case may be dealt with through the official court process.

4.

THE RESEARCH PROJECT ON “CHILDREN IN VICTIM-OFFENDER MEDIATION”

According to an analysis of the cases mediated in Finland in 1997, a sizeable percentage was constituted by assaults (38%), damage to property (21%) and robberies (17%). Of particular interest for the purpose of this section is the age distribution of the offenders participating in mediation in that particular year, which is reported in Table 6-2. Table 6-2. Age distribution of offenders participating in mediation in Finland in 1997. Age % 14 and under 14 15-17 35 18-20 15 21and over 36 Total 100 Source: Mielityinen (1999: 32).

As can be noted, about a third of the total number of offenders were 20 years and over. However, is important to point out that even cases with young offenders such as those whose age is under 15 can be mediated. Mediation cases with such young offenders are the main topic of this section.

4.1

The bases for child mediation

In the Finnish mediation system it is possible to apply VOM even in cases involving children (under the age of 15). As mediation will not result in punitive measures, it is regarded as a suitable procedure for children under the age of 15. As previously discussed, the age of criminal responsibility is 15 years in Finland, but even those under the age of 15 are responsible for

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making up for the damage caused by criminal acts. As shown in Table 6-2, offenders under the age of 15 accounted for 14% of all the persons suspected of crime that had participated in mediation (N = 4,835) in 1997 (Mielityinen, 1999). However, there is considerable variation from one location to another in the number of mediation cases involving children. Offences committed by children as well as those committed by adolescents (15–18-year-olds) are often linked with leisure-time and agelimit provisions. In general, there is no alarming evidence of a rise in adolescent and child criminality in Finland (Kivivuori, 1999a). Some polarization, however, has taken place among adolescents, that is, offences are increasingly committed by a small number of young offenders. Most adolescents, however, refrain from norm violations and have a negative attitude towards criminal activities (Kivivuori, 1999). The rationale behind the child mediation system is the assumption that if successful it will prevent recidivism and stop the path towards the development of a criminal career.

4.2

Research on child mediation

Although Finland is one of the few countries in which mediation can be used for criminal offences committed by children under the age of 15, not much systematic research has been conduced to examine child mediation and related phenomena. One exception is a research project called “Children in Victim-Offender Mediation” that was funded by the Ministry of Social Affairs and Health. This research was aimed at producing an extensive analysis of mediation involving children in this age group that had taken place between 1998 and 2000. It was mainly aimed at evaluating the success and outcomes of child mediation. One additional goal was to assess the organisational appropriateness of this measure. A multilateral assessment method was used to attain these objectives. Specifically, the analysis of offenders was undertaken from several different standpoints. The opinions of victims or complainants, mediators, mediation coordinators, child welfare practitioners and police authorities were examined. The study was conducted in six cities: Helsinki, Tampere, Nokia, Joensuu, Vaasa and Oulu. Comprehensive qualitative and quantitative data were gathered for the purposes of the study. In the next sections, we report the main results of this research project.

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5.

RESEARCH RESULTS 2

A police database, RIKI (“police statistics” in the text below), was made use of in the study, well aware in advance of its limitations3. Nevertheless, given its detailed information on a number of important issues, we used it to address the questions of interest for our research purposes. We first report results concerning differences in the characteristics of young offenders who break the law once versus those who already have criminal careers despite their young age. In addition, we report results on the perception of the mediation process in victims and offenders. Finally, we discuss the factors that appear to be critical in the success of the mediation process.

5.1

A single offence or a career of crime – the police statistics

The database was used in the study in order to find out the extent to which children under the age of 15 had committed other offences in addition to those which led to the mediation process, or whether the offence dealt with in the mediation was their only unlawful act. The mediation offices asked the police authorities to fill out a questionnaire for each child who had participated in mediation in 1998–2000. Information was obtained for 259 children in five cities, representing some 70% of all children that had participated in mediation in these cities during the period. The questionnaires sent to the city of Joensuu were not returned. Of the children included in the police statistics (N = 259), girls accounted for 24% and boys for 76%. The average age was 13 years at the first commission, the youngest child being 7 years of age. In looking at the first time of commission (the children’s age at the time of their first offence), it can be noted that there are few offenders who were 7 9 year-olds. The number of the offenders starts to increase at the age of 10 years and a steep rise occurs at the age of 12 13 years, with peak rates for 14-year-olds. What then were the mediated and other offences that children had committed based on the police statistics4? The most common offence both as a single act and in connection with other acts was damage to property, including graffiti. The second largest group consisted of property offences such as thefts, followed by assaults. 2

The RIKI system was originally designed as a local system for registering reports of offences. Its usability for the purposes of assessments, criminal statistics and analyses is limited (Korander, 2002; Tilastoryhmän loppuraportti, 2001). 3 For these, see also Korander (2002: 280-283). 4 It is to be noted that the analysis here concerns recorded offences only. Thus, we cannot account for non-reported criminal acts.

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Although a majority (86%) of child offenders have participated in mediation only once, the police statistics show that the children have committed numerous offences. Nearly seven out of ten children under age 15 had committed more than one offence. These results suggest that the mediation authorities do not know numerous offences committed by participants in mediation. In contrast, the child welfare authorities appear to have more comprehensive information. Of the children, 29% had a single offence recorded, that is, about seven out of ten children had committed more than one offence – in general the number of offences varied from one to four. At maximum, one child had committed a total of 95 offences over the course of a few years. It is to be noted that a small group of children making up 25% of all children under study had committed 74% of all the recorded offences committed by the children. This finding indicates a strong accumulation of offences. Even though the first offence is often damage to property (including graffiti), a sizeable percentage of children started with property offences or an assault. Re-offenders can continue to commit crimes for years: the longest interval between the first and the last offence was 9 years. Nevertheless, it seems that committing robberies, as well as other property offences such as theft, may contribute particularly negatively to the development of the child’s criminal career. In contrast, it is possible that mediation may be particularly useful for cases of vandalism. In summary, it was found that nearly five-six out of ten children stopped offending immediately after the mediation or after a short delay. However, it is impossible to establish whether this outcome was due to mediation. There are additional characteristics of children who commit crimes that deserve attention. First, nearly half of the children had offended along with others whose age was over 15. A small minority (8%) had offended alone, suggesting that children usually act in groups. Second, being intoxicated while committing the offence was not the most prominent feature for children in our sample: about 28% were intoxicated when committing at least one offence. In attempting to identify different types of child offenders, we were able to identify four sub-types: 1) One-time offenders; 2) Novices with 2–4 offences; 3) Experienced offenders with 5–9 offences, and 4) Career offenders with at least 10 offences. We now describe some of the main characteristics of these groups of child offenders. Children described as one-time offenders (75 children, 29% of the police files) have committed only one offence, on account of which they have participated in mediation. One-time offenders do not re-offend, their only offence led to mediation and they have no other entries in the police records. It would thus seem that some of the one-time offenders have committed the

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offence (or their responsibility was verified) and participated in mediation perhaps younger than the others and have never re-offended subsequently. This group includes roughly similar numbers of girls and boys (Table 6-3). Table 6-3. Four types of child offenders by gender. Experienced One-time Novices offenders offenders N % N % N % Male 41 55 58 70 34 97 Female 34 45 25 30 1 3 Total P = .000 75 100 83 100 35 100

Career offenders N % 63 95 3 5 66 100

Total N 196 63 259

% 76 24 100

One-time offenders are not typically intoxicated when they commit their offences (Table 6-4). The offences have usually been committed in a group. An offence typical of this group is damage to property (there are only a few who have scrawled graffiti) and a violent crime (assault, disorderly conduct, etc). Thefts are less frequent. In the group of one-time offenders, the first mediation process had taken an average of 164 days. Table 6-4. The use of intoxicants among four types of child offenders. One-time Experienced Career Novices offenders offenders offenders N % N % N % N % No intoxicants 66 94 70 86 14 40 12 25 Alcohol 4 6 11 14 14 40 19 40 Drugs 4 11 9 19 Alcohol/drugs 3 9 8 17 Total P =.000 70 100 81 100 35 100 48 100

Total N 162 48 13 11 234

% 69 20 6 5 100

Based on the survey data, one-time offenders have understood in the context of mediation what they have done. In most cases, they show remorse for their deeds. In the child offender survey, children who had committed a violent offence (one-time offenders) expressed their thoughts in the following way, for example: “Mediation helped me realize what I’d done. I saw how stupid I’d been. The best thing in mediation was that the other party was also there and that the thing was settled.” (K5) “I realized that I’d done wrong. After that [i.e. the mediation] I’ve never hurt anybody. The best in mediation was that you could say you were sorry for what you had done. And explain why you did it.” (K7) “I got wiser in that respect, I’ve not been in trouble with the police ever since.” (K31)

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Novices include those who have committed 2–4 offences (83 children, 32%). Girls account for only one-third of the group. Most of them commit their offences around the age of 14. Property offences such as thefts are the most common offence in this group. Their experience with mediation occurs relatively early in their career. Mediation typically concerns their third offence at the latest. In general, nine out of ten children have concurrently committed other offences in addition to those leading to mediation. There are a number of additional characteristics in this group that should be mentioned. First, half of the novices continue to re-offend after the age of 15. Second, half of them have minor offences before the mediation. Third, even after the last mediation session, six out of ten children commit minor offences. Finally, a common feature between novices and one-time offenders is that they rarely commit crimes while they are intoxicated (Table 6-4). Experienced offenders have committed as much as 5–9 offences (35 children, 14%). Many of them offend for the first time between the ages of 7 and 10. Property offences clearly account for a greater share of offences in this group. Unauthorized use, drunken driving and drug and alcohol offences also enter the picture. One fourth of the children in this group participated in mediation for their third offence. They continued to re-offend after the age of 15. A majority of them had committed minor offences even after the last mediation and 70% before the first mediation. With the exception of one girl, all of the offenders were boys. Different from the one-time offenders and novices, 60% of them have been intoxicated in the context of at least one offence. In this group the first mediation process has taken a relatively long time, that is, an average of 199 days. This group appears to be at elevated risk of repeated re-offending. Thus, it is particularly important to identify specific prevention measures for this group. Children described as career offenders have committed at least 10 offences (66 children, 25%). The offences committed by these children accounted for three-fourths of the total offences recorded in the police files. Consistent with other studies, this phenomenon reflects polarization among the youth: a small number of offenders are responsible for a large number of offences (see e.g. Kivivuori, 1999b). The same trend seems to apply to child offenders. Typically, career offenders start at a very early age and their offences do not always immediately result in mediation. In one case, the child participated in mediation for his 31st offence. Career offenders have a large number of offences but only a few cases were mediated. Intoxication seems to be commonly associated with offending: 75% of these were intoxicated in the context of at least one of their offences (see Table 6-4). Property offences were the dominant category of crime in this group, but a number of other offences were also represented: career offenders committed a wide variety of offences, many of which were robberies. Similarly to the

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experienced offenders group, their first mediation process has taken a prolonged period of time, an average of 184 days. Career offenders are thus children with a serious criminal background. At worst these children have committed dozens of offences, even up to 100 offences.

5.2

What does the mediation data tell us about child mediation?

The research data in all six cities also included mediation documents, providing information on many aspects of mediation, such as agreements, conclusion of agreements and agreement processes. Only a few points will be discussed here. Although the results varied from one city to another, the reparative measures the parties agreed upon were completed successfully in most of the cases under examination. Only 20% of the cases had been discontinued. In the city of Helsinki, however, there were numerous cases in which the mediation process never occurred. The reasons for this included that the parties were not willing to participate in mediation or the authorities did not provide the option because child offenders had already participated in VOM several times. The child offences that were most often the subject of mediation were assaults (34%), damage to property (26%), scrawling of graffiti (24%) and thefts (21%). Altogether, in 114 of our 250 cases, the child offender repeated the offence. Generally speaking, in the cases involving children under 15, the reparation was in the form of a financial compensation, an apology, reparative tasks or various combinations of these. It is important that all parties attend the mediation sessions. In general, the offenders, complainants and parents were present, but there were also a few cases (about 10% of all cases) where one of them was absent – mostly the offender.

5.3

Mediation as a social intervention and its importance in the light of the survey data

As described previously, to shed light on the impact of mediation on child offenders and victims, a survey questionnaire was sent to all the parties that had participated in mediation in the six cities in the time period between 1998 and 2000. The results presented here mainly concern child offenders. The response rate was low, being 28% for child offenders and 34% for child victims. As for the representativity of the sample, it should be noted that children with the most problematic criminal backgrounds are underrepresented in this survey research. In contrast, girls were slightly over represented. In the next paragraphs we report results concerning children’s

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perception of the police interrogation and the mediation process. Finally, we discuss factors that appear to be related to the effects of mediation. 5.3.1

Interrogation and issues related to the offences

After committing an offence, the child is usually interrogated by the police. The survey data analyses revealed that a majority of the children (84%) perceived that the police interrogation had been carried out appropriately; the same finding was observed with respect to the children’s parents. Police mostly referred the cases to mediation. The children had typically committed the offences in group and knew each other beforehand. Half of the offences were committed together with over-15-year-olds. However, no “apprentice syndrome” was observed: only a few children reported having been persuaded to commit the offence by over-15-year-olds. For a majority, one of their closest friends had participated in mediation. The reason for this is perhaps that the offences are usually committed together in a group. 5.3.2

The mediation procedures

For those involved in mediation the police was the main source of information, but information was also obtained from the mediation office. Nearly all of the children who responded to the questionnaire regarded the information provided by the mediation offices as sufficient and easy to understand. The offenders’ parents were of the same opinion on this issue. The children were aware that under-15-year-olds are responsible for the damage they cause. According to the parents’ answers, 7 families had had at least two of their children involved in mediation (N = 79). When child offenders were asked why they had decided to participate in mediation, it was found that they saw mediation as a sensible and worthwhile solution that also corresponded to their own best interests (N = 80; 29%). The facts that mediation enabled them to settle the issue, learn from it and to make up for the offence were regarded as equally important (29%). Some of them perceived that there were no other options, that they simply had to participate (18%). For 15%, mediation represented a way to avoid other measures. Two children believed that mediation was the only way to get the truth out. Participants were asked to describe how they felt before the mediation session. Mediation seems to have put child offenders in a “tight spot” (see Table 6-5). When the same open-ended question was posed to child victims, as much as 70% of them reported having felt strain, fear or nervousness before the mediation session.

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Table 6-5. Child offenders’ experiences of mediation. N Experiences Strained / frightened 33 Annoyed/ ashamed 16 Confident 3 Useless 3 Nothing in particular 12 Other experiences 9 Total 76

% 43 21 4 4 16 12 100

The encounter between the offender and the victim is one of the founding principles of mediation. The perceived importance of this encounter was solicited in the survey. Results show that all parties regarded the encounter as important. Child offenders and victims mainly held the view that the parties had been treated equally during the mediation session. A majority (three-fourths) of the offenders and victims also held a positive attitude towards the mediators. Under-15-year-old offenders primarily wanted to make up for their offence with work compensation or an apology. Victims in turn gave priority to money compensation or an apology. Offenders’ parents generally preferred work compensation. A majority (60%) of offenders’ parents preferred other types of compensation to money. Eight out of ten offenders and their parents were satisfied with the content of the agreement. A majority of child victims were also satisfied. Boys were more satisfied with the mediation than girls (see Table 6-6). Table 6-6. Satisfaction with the mediation among female/male offenders. Male Female N % N % N Satisfied 16 70 42 91 58 7 30 4 9 11 Unsatisfied Total P=0.020 23 100 46 100 69

Total % 84 16 100

Offenders’ parents were asked to describe the effects of the mediation on their children. More than half of the respondents (N = 60) believed that in the course of the mediation the child had accepted his/her responsibility and that the mediation had furthered the child’s development because the children learned a lesson. Only one out of ten believed that the mediation did not have any effects. Victims were somewhat hesitant in assessing whether mediation had been of benefit to them: 55% answered affirmatively, 38% answered “I can’t say” and 7% answered negatively.

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What are the aspects of mediation that prevent child offenders from re-offending?

In the offenders’ minds, there were three factors that emerged as important to prevent re-offending: disclosure of the offence (i.e., parents were informed and the offence was reported to the authorities), understanding that the offence was wrong, and the occurrence of the police interrogation. As for parents, the results largely mirrored those of child offenders, except that they put a clearly greater emphasis on the disclosure of the offence. After VOM, a majority of under-15-year-old offenders (73%) admitted having done wrong when committing the offence. Nearly six out of ten offenders saw that they had benefited from mediation in different ways, while one-fifth were hesitant about the benefits. The responses showed that the most important positive change took place with respect to the child’s friends, behaviour and leisure-time. The survey found that negative consequences were observed only with a few children. Child offenders believed that they had mainly benefited from mediation because mediation brought a sense of relief, there was a sense of having learned to settle issues through discussion and to take responsibility for wrongdoing, thereby making up for the offence. Offenders appeared to appreciate that the other party accepted the apology. Finally, there was a recognition that mediation prevents further offending The offenders’ parents mentioned the following benefits in order of importance: their child was able to learn from mediation, their child was given an opportunity to make up for his or her offence, mediation prevents criminal behaviour, mediation provided the child with a sense of relief, the case was settled easily, their child became more thoughtful at evaluating his/her own actions, and the child was given an opportunity to apologize. Finally, the victims’ perspective was examined. Victims believed that the main positive consequences were: the other party offered his/her apologies, they no longer felt a reason to be afraid of the offender, they appreciated the opportunity to have a say in the content of the agreement, and they felt a sense of relief as a result of mediation. 5.3.4

Factors affecting the beneficial effects of mediation

In summary, the survey found that re-offending was most efficiently prevented on account of disclosure of the offence in general, parents being informed and undergoing a police interrogation. Of great importance was also that the offender realized that offending was wrong. In general, children perceived mediation as useful.

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As far as child offenders are concerned, the relative contribution of several factors on the effects of mediation is now presented. Only significant results are included. Over half of the children were remorseful for their wrongdoing before and after the mediation. Remorse was associated with the child’s feeling that mediation was helpful: those who felt remorse reported that mediation had helped settle the issue more often than those with no feelings of remorse. It also seems that those showing remorse reported that they would not re-offend more often than those with no remorse. Similarly, those with feelings of remorse believed that mediation prevents crime more often than those without such feelings. One-time offenders more often than re-offenders believe that they will stop offending. In general, it seems that children place great importance on how mediators behave in the mediation situation. This finding emphasizes the importance of mediator training. When a factor analysis was used the variables describing the benefits of child offender mediation yielded two distinctive dimensions5. The first dimension was called willingness to change. Within this dimension emphasis was placed on discussion and the establishment of relations with the victim and the parents and guardians; a need for change was expressed with respect to offending, and mediation brought a sense of relief. The second dimension was called accepting responsibility. Within this dimension, the emphasis was placed on taking responsibility for the offence, forgiveness, understanding the other party, benefits of mediation and opportunity to have a say as regards the content of the agreement6. When these dimensions were used to form sum variables, results showed that willingness to change and acceptance of responsibility increase if the child has a positive attitude towards the mediation process, understands what he or she has done, sees the consequences of his/her actions, and feels remorse.

5

Benefits of mediation were described by the following statements, each of which was evaluated by means of a Likert scale: “As a result of the mediation I will not do again what I did”, “My relationship to my parents was improved, I learned to settle things through discussion”, “Mediation was economically worthwhile”, “It gave me a sense of relief”, “Relationship between me and the other party got better”, “Mediation helped understand the other party”, “The other party accepted my apology”, “I had an opportunity to have a say as regards the content of the agreement”, “I wanted to take responsibility for the offence and make up the damage”, “No benefits” and “Mediation helps prevent criminal behaviour”. 6 It is to be mentioned that one dimension for the parents of under-15-year-old offenders was the educational function.

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Mediators, police and mediation staff as parties in child mediation

For the purposes of the study, 30 mediators active in the six cities were interviewed using a group interview method. Most of them had been mediating cases involving under-15-year-old offenders. They had worked as mediators for different periods of time. Most of them participated willingly in VOM, that is, they chose to be mediators in this type of case. Such mediation was seen as pertaining to hope and future. Mediators also thought there was a good chance of success. In addition, mediators saw the process as an opportunity to intervene and to bring about change, that is, they felt that full advantage should be taken of the opportunity to make a difference, particularly after the first offence. The core attributes of child offender mediation were defined by mediators to include the following: mediation represents an obligatory stop for children. It helps bring the child back on the right track and supports educational principles. It was perceived as a way of preventing re-offending, though it was noted that there are also children who do not seem to be interested in the process. Mediation was seen to direct the child towards the future. Furthermore, it was regarded as important that the child should be made accountable and meets the victim: it is necessary to admit responsibility for the offence. The importance of offering apologies was underlined while financial compensation is not always the core of the issue. In the group interview the role of parents and guardians in mediation was also emphasized. The complainant was not forgotten either: it is important that the victims should feel as though they have received compensation. Rapid and early intervention was seen as a sign of caring about the child and an efficient way of changing the situation. Mediation was thus regarded as a form of intervention suitable for children. Mediators also identified a number of problems in child offender mediation. For example, compensation matters were seen to dominate at the expense of the content of mediation. Further, mediators felt that the presence of the parents during the mediation sessions was at times a cause of disturbance. In addition, mediators tend to believe that mediation is not appropriate for all children. Nevertheless, mediators generally believed that child offender mediation has positive effects. Individual interviews with policemen included seven subjects. The policemen perceived the acceptance of responsibility by the child as important. Further, the meeting between the offender and the victim was regarded as important and instrumental to promote child offenders’ awareness of the consequences of the offence. Intervention was seen as a

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signal of caring about the child. Child mediation was believed to help in setting limits for children’s behaviours. Although the police were confident that mediation would produce results, the interviews suggested that there was some heterogeneity among them on this issue. The interviewees believed in the advantages of early and rapid intervention. The police’s approach was realistic: it is necessary that rules, instructions and standards are specified for the mediation process. Cooperation with the mediation party was also perceived as important. The police also expressed the need for more information on mediation. In addition to mediators and policemen, mediation co-coordinators and child welfare staff in the six cities were interviewed (N = 14). The data indicate that they also regarded mediation as an intervention in the child’s best interests. There was variation from one locality to another in the extent to which there was close cooperation between the different authorities involved in mediation. Generally speaking, however, all of them had a common goal: to prevent the child from offending at an early stage. The interviews also generally supported the view that the mediation system should be made nationwide.

5.5

Administrative aspects of child mediation

It seems that the different parties agree on mediation being a justified means of preventing and changing children’s criminal behaviour. As for the administrative arrangements and implementation, however, a few problems were identified. Specifically, participants emphasize that there is not always sufficient information to establish the types of measures that should be used and how responsibilities should be allocated among different professionals. The interviews with mediation co-coordinators and child welfare staff revealed that it was common in the cities under examination that the different agencies or authorities involved in mediation were not clearly informed about each other’s activities. For example, child welfare authorities may not know if the police will provide information on all the offences committed by children. Further, there have been situations in which although child welfare authorities assumed that a specific case had already been forwarded to the mediation office, this had not actually occurred. This can be construed mainly as a communication problem, that is, the information-flow from the police or the child welfare authorities to the mediation authorities may not be efficient. One additional problem is that there are no clear principles for determining at what stage and for what types of offence should the case be referred to mediation. Moreover, the monitoring of the implementation of the mediation agreement varies from one city to another. An important

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observation concerned the time interval between the commission of the offence and the occurrence of the mediation meeting: the mediation process usually takes place so long after the offence that the child will offend again in the meantime. Statistics on child mediation had been compiled in different ways in different cities, and in some cases they were being maintained sporadically. Even if the voluntary basis of mediation were maintained, the introduction of regulations, instructions and standards on some basic issues seems to be justified. There also seems to be a need for further strengthening cooperation between different authorities.

6.

IS CHILD MEDIATION EFFECTIVE?

The study presented in this chapter has produced practical information on different aspects of mediation in cases in which the offender is under the age of 15. There is no doubt that child mediation is needed – even according to the offenders’ own opinion. Different data sets suggest that re-offending can be prevented by rapid intervention at an early stage. However, a precondition for this is that the child plays an active role in the efforts to promote change along with contextual factors such as his/her life situation and environment. Approximately 50 60% of under-15-year-olds stop offending immediately or with a small delay after a single offence. Children who have committed a large number of offences and who, for various reasons, experience difficulties in life management, pose a much more serious challenge in terms of benefiting from mediation. A survey questionnaire administered to the child welfare authorities indicated that many of the children have problems. School problems (truancy, bullying and learning difficulties) were very common. Mental problems were also reported. Problems generally accumulate among those children who have committed a large number of offences. Thus, polarization not only describes adolescents’ criminal conduct accurately, but also children’s. In the police records the most problematic group of children have dozens of offences – at worst nearly one hundred. Even in these cases, children have participated in mediation only once. However, it is not the first offence that has led to meditation, but the children may have committed a number of offences before experiencing mediation. It is very likely that at least in some cases it would have been possible to prevent re-offending through rapid intervention and mediation. Therefore, children should be recruited to mediation immediately after they have committed an offence. A small minority of children have participated in mediation several times; some of them have stopped offending only after several mediation experiences. Repeated mediation alone is not necessarily

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an effective way of preventing the child from offending further. It can be asked whether mediation alone is helpful in the case of children with repeated offences or whether it can be seen as an intervention that will result in a wide variety of other support measures. Some children need more efficient measures. One possible alternative is to make mediation an inherent part of child welfare work. The demanding nature of child mediation should be reflected in mediator training. The mediation system for children under the age of 15 still needs to be developed further in many respects, but we will highlight two of them. First, further effort should be put in place to foster cooperation among various officials. Second, it seems important to further our understanding and implementation of measures specifically directed to problematic children who commit numerous offences.

REFERENCES Christie, N., 1977, Conflict as property, British Journal of Criminology, 17(1):1-15. Iivari, J., 2001, Rikos ja riita-asioiden sovittelun valtakunnallinen organisointi. Sosiaali- ja terveysminsiteriö, Työryhmämuistioita 2000, 27 (with Swedish and English summaries). Iivari, J., 1982, Köyhät ja kurinpalautus – raportti vankilan tehtävästä, Otava, Keuruu. Kivivuori, J., 1999a, Teoksessa Rikollisuustilanne 1998. Rikollisuus ja seuraamusjärjestelmä tilastojen valossa, Oikeuspoliittinen tutkimuslaitos, Helsinki. Kivivuori, J., 1999b, Nuorten rikoskäyttäytyminen 1995-1998, Oikeuspoliittisen tutkimuslaitoksen julkaisuja, 161, Helsinki. Korander, T., 2002, Rikostilastoanalyysi, in: Kaheksalta koskarille – samantien sakot. Tampereen nollatoleranssikokeilu 1999-2000: historiallinen konteksti, vastaanotto ja vaikuttavuus, T. Teoksessa Korander and S. Soine-Rajanummi Seppo, eds., Poliisiammattikorkeakoulun tutkimuksia, 13, Edita, Helsinki. Lappi-Seppälä, T., 1996, Reparation in Criminal Law: International Perspectives, in: Beiträge und Materialien aus dem Max-Planck-Institut für ausländisches und internationales Strafrecht Freiburg, He-rausgegeben von Albin Eser, Band S 57/1, vol. 1. Mielityinen, I., 1999, Rikos ja sovittelu. Valikoituminen, merkitys ja uusintarikollisuus. Oikeuspoliittisen tutkimuslaitoksen julkaisuja, 167, Helsinki. Tilastoryhmän loppuraportti, 2001, Sisäasiainministeriön poliisiosaston julkaisu, 5. Viirre, P., 1981, Uutta kriminaalipolitiikkaa Torontossa, Diakonia, 8. Viirre, P., 1987, Elämänlaatu ja väkivaltarikollisuus, Lecture at Lappeenranta Summer University, 27 June (unpublished).

Chapter 7 VICTIM-OFFENDER MEDIATION WITH JUVENILES IN POLAND Beata Czarnecka-Dzialuk and Dobrochna Wójcik -

1.

INTRODUCTION AND DEVELOPMENT OF MEDIATION IN POLAND

The interest in Victim-Offender Mediation (VOM) in Poland began in the early 1990s. At that time it appeared possible to become acquainted with mediation not only by reading foreign literature1, but also – or even especially – by observing its practice abroad, by several researchers and academics making study visits, as well as by representatives of the NGO Patronatt (helping prisoners and their families) and of the Senate Intervention Office. Then, in the fall of 1994, about 10 persons from those different circles met and decided to attempt the introduction of VOM in practice. They established an ”Initiative Group” (later “Committee”) for Introducing Mediation in Poland, acting independently of the Patronat. Later on, the committee members created a separate NGO called Polish Centre for Mediation (PCM)2. 1

2

One of the earliest articles concerning mediation in Polish with extensive quotations from foreign literature is by Gronowska (1989). A review of the foreign literature (mostly American, English, and German) is contained in a book edited by BieĔkowska (1995a). See BieĔkowska (1995b) and Kulesza (1995). The main tasks of PCM are: promoting the idea of mediation and restorative justice; conducting victim-offender mediations in mediation centres, and also other activities such as family and neighbourhood mediations; organising training for prospective mediators and second-level trainings, courses and workshops for all those interested in conflict resolution.

137 A. Mestitz and S. Ghetti (eds.), Victim-Offender Mediation with Youth Offenders in Europe, 137-153. © 2005 Springer. Printed in the Netherlands.

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The promoter of all further initiatives was – and still is – Dr. Janina Waluk, a sociologist who at that time worked in the Senate Intervention Office as a specialist on prison matters. The first step was to promote information on VOM, so in January 1995 an international conference on mediation took place in Warsaw. Experts from Germany and Austria not only presented their experiences with mediation, but also led workshops with a mediation role-play, which very much inspired all the participants. The rest of the conference was devoted to presentations and a discussion as to whether there were opportunities and prospects for mediation in Poland. Thanks to the sponsor – the German Heinrich Böll Foundation – it was also possible to publish the conference proceedings as a book3. The interest in the subject started to grow and there were further seminars and lectures4. More people joined the initiative group – among them judges, students and academics. The next step was to elaborate the experimental program of mediation in juvenile cases, as, in contrast to the penal regulations of that time regarding adults, the law on the treatment of juveniles did not present an obstacle to the application of mediation. The Ministry of Justice has allowed an experimental mediation program to be conducted in five family courts5 (later another three courts joined the experiment) for a three-year period. Then, the Committee organised two 5-day mediation training courses for facilitators; some family judges from selected courts also took part. There was also separate one-day training concerning legal matters and the rules of the program. The experiment in eight towns and the training were mainly sponsored by the Heinrich Böll Foundation.

3

See BieĔkowska (1995a). As, for example, 1-2 days seminars with practical workshops organised locally by the district court in Piáa (1995), Szczecin (1996), and lectures in the Warsaw district court (1996). 5 Juvenile courts (existing in Poland since 1919), were transformed in 1978 into family courts of a broader competency, which includes juvenile offenders’ cases and also various problems of a civil nature concerning families, such as custody cases, compulsory treatment of alcoholics, divorce cases and even cases of adult offenders committing crimes against the family and young people, including child abuse. The idea was to direct all cases concerning one family to the same judge – called “family judge” in order to put the judge in the position of better knowing all the problems existing in one family and thereby choosing the most suitable measure. An additional goal was to enable the court to make arrangements for some preventive measures. One of the most important goals was improving the way the system dealt with juvenile offenders, but in practice it was observed that the effectiveness of the proceedings in juvenile offenders cases decreased due to overloading the family courts with various sorts of cases, especially the activity of family judges in the supervision and the execution of the sentence, in comparison to the activity of judges in former juvenile courts. 4

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Moreover, an evaluative research regarding all cases mediated in the eight towns was financed by the National Committee for Scientific Research. It was carried out between 1997 and 1999 in the Institute of Law Studies of the Polish Academy of Sciences, by the authors of this chapter, along with mediators and other collaborators, specially trained in interviewing and examining court records. The research results were presented in various seminars6 and meetings. Of great importance was inviting foreign experts7 to present the achievements – as well as problems – of mediation in their countries. In addition, the Recommendation of the Council of Europe on mediation in penal matters drafted at that time had a significant influence. There were also meetings in the parliamentary commissions – on human rights, on new penal legislation and on amendments to the act on treatment of juveniles. These helped to persuade to introduce legal provisions concerning mediation into the draft laws. In effect, mediation in Poland is available both for adult offenders and juveniles. The specific articles on VOM in adult offenders’ cases have been introduced into the Code of Criminal Law (CCL) and the Code of Criminal Procedure (CCP) on 6 June 19978. These are very general in nature, allowing for referral to VOM under certain circumstances9. The results of mediation 6

Among them were several day-seminars organised for criminal justice practitioners, by the Council of Europe, the Institute of Justice and the Ministry of Justice (in Popowo near Warsaw, in 1997 and 1998). 7 Among them: Christa Pelikan (Austria), Siri Kemeny (Norway), Erich Marks (Germany), Gerd Delattre (Germany), Martin Wright (Great Britain) and Ivo Aertsen (Belgium). 8 Journal of Laws, no.88, item 535 - 555; the CCP has been amended with the Law on January 10, 2003 (Journal of Laws, no. 17, item 155). 9 According to sec. 23 a. CCP, the court and a State prosecutor (in preparatory proceedings), may, with or without the consent of the parties, refer the case to a trustworthy agency or person in order to conduct a mediation procedure between the suspect and the injured party (§ 1). § 2 states that the mediation procedure should not last longer than a month; its duration is not counted in the length of time of the preparatory proceedings. An amendment of January 2003 also allows for the referral of cases to mediation by the police. The text of the article is as follows: Art. r 23 a. “§ 1. The court, and in preparatory proceedings a state prosecutor, may, on his own initiative or with the consent of the parties, refer the case to a trustworthy agency or person in order to conduct a mediation procedure between the suspect and the injured party. § 2. The mediation procedure should not last longer than a month; its duration is not counted in the length of time of the preparatory proceedings. § 3. The mediation procedure cannot be conducted by a person to whom, in the specific case, the circumstances stated in sections 40 and 42 apply, by a professionally active judge, defending lawyer, or legal counsellor, nor by applicants to these professions or other persons employed in the court, in the state prosecutor's office or in any other agency authorized to prosecute offences (Sections 40 and 42 provide for excluding persons involved in a certain manner in the case that might reduce their objectivity). § 4. Having conducted the mediation procedure, a trustworthy agency or

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would be taken into account when deciding upon the case, especially when deciding on conditional discontinuance of the proceedings or suspension of the penalty or when other penal measures are imposed10. As for the juvenile offenders, the amendment of the Law on the Treatment of Juveniles of 26 October 198211 allows for mediation at every stage of the proceedings. The regulation of the Minister of Justice on mediation proceedings in juvenile cases of 18 May 200112 entered into force at the end of June 2001. Mediation in adult-offender cases and in juvenile cases differs slightly – involving juveniles’ parents and with the requirement that mediators in juvenile cases must be trained in an appropriate manner13. Mediation in juvenile cases has been practiced earlier – on an experimental basis, since 1996 (and in Zibeline Góra since mid-1995) – but only in 8 family courts out of over 300. During the experiment there were about 200 mediations (the number of the juveniles involved was about one third higher). In 1999, 50 cases were referred to mediation and, in 37 of them an agreement was reached; in 2000, there were 63 cases referred to mediation, with agreement in 49. Although at the time of the experimental program and just after it was formally finished, judges showed interest in mediation, after introducing mediation into juvenile law, the number of mediations was low. Unfortunately, the mediated cases are not being properly recorded. In the Department of Statistics of the Ministry of Justice there are plans to collect these data. In 2001, only 21 cases were referred in the whole country; in 2002 there were 42 and only 29 were completed (with agreement in 19 of them). However, in 2003 the number of mediations increased slightly, to 145. Several obstacles are responsible for the low number of mediation cases. Specifically, these obstacles include lack of financial resources (even though person shall prepare a report on its course and results. § 5.The Minister of Justice shall set forth, by ordinance, conditions to be met by agencies and persons authorized to conduct mediation, the method of appointing and removing them, the scope and terms of giving them access to the case files, as well as the manner and the course of the mediation procedure, keeping in mind the need for effective realization of this procedure . Some questions have been left to be regulated by the Minister of Justice, which was first done in the regulation of August 14th, 1998. This regulation has been replaced by the regulation of June 13, 2003. Its scope is now wider as the innovations have stated the conditions to be met by agencies and persons authorized to conduct mediation, the method of appointing and removing them, the scope and terms of giving them access to the case files, as well as the manner and the course of the mediation procedure. 10 While deciding to apply exceptional mitigation of the penalty respectively sections 53§3, 60§2.1 and 66§3 C.C.L. 11 Adopted by the Parliament on September 15th, 2000 (Journal of Laws no. 91, item 1010). 12 Journal of Laws no.56, item 591. 13 More about this in Czarnecka-Dzialuk (2004).

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remuneration of mediators per case is rather low, it is being perceived in some courts as an additional “unnecessary” expense) and the lack of mediators who meet the training requirements described in the Regulation (even though over 650 persons have already been trained in a suitable manner, some certification procedures are needed). Then, the mediators and mediation centres (of PCM and other institutions) do not cover the whole country and it is just inconvenient or uneconomic to employ a mediator from far away. Unfortunately, it is so even in the not very many family courts showing real interest in mediation (there are judges participating in seminars and conferences). This last point evokes another problem: generally the judges’ interest in mediation is low; they seem to be afraid to apply this novelty in practice, we can guess that there is a certain mental resistance, distrust and unwillingness to depart from routine14.

1.1

Polish juvenile justice

In the structure of the system of common courts there have been special separate courts for juveniles since 1919, when juvenile courts were first established. In Poland, unlike other countries of the “Eastern block”, special commissions for juveniles were never introduced. As previously stated, in the late 1970s juvenile courts were transformed into family courts with much broader competencies. The age of juvenile offenders sentenced by the family court ranges from 13 to 17 and in the case of non-offending juveniles who display features of maladjustment (called in the law on treatment of juveniles “amorality”) the age limit is below 18 years (there is no minimum age limit in this law; if the offence was committed before the perpetrator’s 13th birthday, it is considered merely a sign of maladjustment). Further, a person is regarded as a juvenile for as long as the imposed measure for juveniles is in force (up to 21 years of age). In the rules on juvenile responsibility, the principle of rehabilitation takes precedence over aspects of “just deserts”; this can be seen especially in the fact that the most severe measure – placement in a correctional institution – is reserved only for those who have committed the most serious offences. Educative measures may be applied also to non-offending juveniles who demonstrate symptoms of maladjustment. An ordinary penalty may be used only exceptionally, towards those who after their 15th birthday have committed very serious crimes. In principle, the age of criminal responsibility is 17 and it is also possible to raise this age limit by one year. The legal provisions of the act on juvenile justice of 1982 are in many ways elastic, according to the principle of individualization. Educational and correctional measures are imposed for 14

See also Wójcik (2004).

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an unspecified period whose duration depends on the progress of the rehabilitation process. The law also provides for medical treatment: the court may place a juvenile suffering from mental deficiency or illness, or drug addiction, in a suitable medical institution. The criminal process is inquisitorial. The whole procedure, from the start of preliminary hearings through trial, to the enforcement procedure up to the termination of the measures applied, is directed by the family court. The family judge enjoys significant discretionary powers. Even if criminal prosecution is declared in law to be compulsory, there are wide possibilities to divert the case. For example, according to the principle of justifiability of educational and corrective measures, the judge may waive the proceedings or discontinue them if ordering those measures serves no purpose (section 21§2). Even if the act on juveniles gives the prosecutor the status of a party in the proceedings, she/he does not participate in practice. She/he must only be informed about certain decisions, such as placing the juvenile in remand homes when the trial is pending and about the dates of court hearings in correctional proceedings; she/he must be present in the courtroom only when the offence is very severe. It is the judge who collects evidence, expert and witness opinions (with the help of the police and probation officers). The procedure is not adversarial, so there is not even a role for the prosecutor. The criminal proceedings are in practice not mandatory - as according to the above-mentioned section 21 2 §2 the court is allowed to waive the proceedings or discontinue them if the circumstances of the case justify it, or if the imposition of educational or correctional measures would be pointless, particularly in view of measures applied in other proceedings towards the same young offender. There is therefore broad scope for juveniles to be disengaged from the justice system and in fact only 40% of incoming cases result in trials. There also are diversion measures: the court may refer the case to the school attended by the juvenile, or to the social organisation to which she/he belongs. If the court considers that the educational measures of those institutions are adequate, the school or organisation is obliged to inform the court about whether the applied educational measures are effective. In practice, however, this diversion possibility is very rarely applied.

THE INSTITUTIONAL FRAMEWORK ”

2.

In Poland, mediation in juvenile cases is positioned next to” the justice system rather than within” it, because the mediation process is performed outside the court by social institutions or by trustworthy persons. These must not be persons connected with the court, such as judges, prosecutors, ”

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attorneys, legal advisors or probation officers. However, referrals are made solely by the family court and after mediation the cases return to the family court so that it can assess the results of mediation before sentencing. The mediation costs are covered by the State budget and are foreseen in the budget of the justice system. Therefore one should assume that mediation should be included among the responsibilities of the Ministry of Justice. For some time there was a position for a specialist in VOM, but after about two years during reorganisation of the Ministry this position was abolished. Since then juvenile mediation matters have been dealt with by the department of common courts. The interest of the Ministry in mediation varies – recently it is growing again, especially in the context of civil and family law. A special commission is currently drafting legal provisions concerning mediation to be included in the civil code, the civil procedure code and the family and child protection codes. There are several ways in which the Ministry might be expected to help: it could amend or elaborate proper legal provisions, help with training of mediators (now the mediators bear the costs of training themselves), and include mediation in the training of justice system practitioners. The last has already began – but not on a regular basis. The Ministry should also collect proper statistical data concerning mediation and support scientific research and evaluation. There is also the delicate problem of supervising how mediation is carried out. The Ministry might participate in certain independent bodies that would oversee mediation to examine whether the rules are followed. Mediation is carried out by representatives of authorized institutions dealing with social problems or by authorized private trustworthy persons they are all called mediators15. The institutions and the individual mediators should be authorized and registered by the presidents of the second-level courts. Mediators from the authorized institutions, as well as those acting individually, must meet several conditions, that is: they should be over 26 and a Polish citizen, have no criminal record and have the ability and the knowledge to handle conflicts, especially in the fields of psychology, education, sociology or law. Finally they must complete the mediation training (i.e., the regulation contains the standards of the training content). Officially, the Family Consultation and Diagnostic Centres16 also are authorized to conduct mediation. At present there are 64 centres distributed around the country. They belong to the Ministry of Justice structure and are financed by it. As was mentioned, other institutions and individual mediators are independent from the justice system. In each of those centres there is at least one psychologist who has completed the mediation training. Their main 15 16

§ 5, § 3 and § 4 of the regulation on mediation in juvenile cases. Auxiliary institutions for the family courts, employing psychologists, psychiatrists, sociologists, compiling psychological and pedagogical expertises and opinions.

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task is however writing opinions for the court in child protection, divorce and juvenile offenders’ cases. Overall, the mediation activity is still rather marginal.

3.

LEGISLATION AND LEGAL PROVISIONS FOR THE APPLICATION OF VOM

The law on the treatment of juveniles of 26 October 1982, amended in 2000, enables the family court at every stage of the proceedings, acting on an initiative of the parties or with their agreement, to refer the case to mediation by an organisation or a trustworthy person. The result of a mediation is to be taken into consideration in passing the sentence17. The issues to be regulated by the Minister of Justice are indicated in the Regulation of 18 May 2001 (§ 3 of section 3a). It also deals with norms and procedures of conducting mediation and the question of training mediators (including standards for mediators’ training). There are conditions under which legal provisions concerning mediation can be used, where case characteristics do not raise doubts as to whether VOM would be of use18. There is no limitation with respect to the kind of offence. In the experimental program, the referral criteria were stipulated rather generally and the listing of eligible offences was deemed unjustified at the experimental stage. In the beginning it was suggested that the cases in which the offender at least did not deny his participation in the event and confirmed its circumstances should be directed to mediation and accepted. Some time later additional guidelines were proposed: the offence shall not be too grave and the case too complex (for example, having too many victims or offenders); the damage caused by the offender shall not be so serious as to render reparation impossible, and there shall not be any security-related contraindications (i.e., the juvenile must not be excessively anti-social or, for example, involved in a criminal group). Moreover, the mediators’ code of ethics points out that in deciding whether to proceed with mediation, mediators should also take into account visible lack of equality because of differences in age, intellectual maturity and capabilities of the parties. Our opinion is that the main benefit is the independence of mediation centres and mediators. However, forbidding probation officers to be mediators seems to be “too pure”. There is a problem in verifying the 17 18

Section 3a § 1 and § 2. As stated by § 2 of the Regulation.

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qualifications of mediators who were trained before the Regulation of 18 May imposed detailed conditions for training.

4.

THE ORGANISATIONAL STRUCTURE OF VOM CENTRES AND MEDIATORS

In Poland, mediators may act individually or as representatives of an authorized institution or in the above-mentioned family diagnostic centres. Over 650 persons have been trained according to the requirements, mostly by the PCM, but not all of them are registered as mediators and those who are, deal mostly with adult offenders’ cases, as the number of juvenile cases the biggest of the authorized referred to mediation is low. PCM organisations leads and supervises 28 local mediation centres. These 28 centres are spread over the whole country. Their organisational structure varies depending on how many mediators are there or who is their sponsor. For example, local government, a non-governmental organisation (NGO), a Church, or centres of social assistance. In PCM there are ten consultation points with one or two mediators. There are 5 sections with a few mediators, and 13 mediation centres with more than 10 mediators each. These last 13 are registered as a separate NGO, and have their own budget and plans. Of course they may consult with the PCM Headquarters in Warsaw about their activities and problems and they frequently do so, but they are independent in their decisions. It is hard to estimate the benefits and weak points of the organisational structure. Independence from the courts is certainly a benefit. The main problem is the financial one. Nearly all work is done on a voluntary basis. Each centre needs at least one employed member of staff, but only a few centres have employed staff – and even these are not on a regular basis, but for certain programs that last only for a short time. Some mediators are not linked to any centre; they mediate for example in their workplace. Nearly all mediators are employed in various organisations and are of different professions; mediation is their additional occupation. Mediators in juvenile cases are paid a lump sum of 160 PLN per case (about 40 €) from the State budget, independently of the number of meetings they have with victims and/or offenders. This rate is very low, even symbolic, especially taking into account that mediation may take an average of 16 hours, and that if there are co-mediators, they must share this sum. The actual mediation meeting in most cases is conducted in the mediation centre; there have been exceptional circumstances in which the mediation meeting took place in the workplace of a mediator.

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There is a formal leader in each centre which has more than one mediator. It has happened in two towns, that in spite of electing one person to be the formal leader another mediator is the informal leader. Moreover, in a few towns the local mediation promoters are not mediators, but a judge or a probation officer. Finally it should be emphasized that there is no regular follow-up. As already mentioned, an evaluative research has been conducted on the experimental program of mediation. Its results have shown that the program was realized according to its principles and international standards, and that in over 75% of all cases referred to mediation the mediation ended with an agreement, and the agreement was fulfilled in over 90%. The re-offending rate (14.4%) was not significant in comparison to the results of other studies showing much higher rates (Czarnecka-Dzialuk and Wójcik, 2001).

5.

THE MODELS, APPROACHES, AND THEORETICAL FRAMEWORK OF VOM

The model of mediation in Poland has been theoretically elaborated while the experimental program of mediation was being drafted and it has then been further developed in the light of its realization. In developing the mediation program, the extensive experience gathered by other countries had been considered. Many discussions indicated, however, that ready-made solutions suitable for other countries should not be automatically applied but should be modified to accommodate Poland’s specific conditions (Czarnecka-Dzialuk, 1999). The main difference from other European countries concerns the differences in court organisation. The family judge has many functions and only she/he may refer cases to mediation; the public prosecutor never does this as his role in juvenile proceedings is rather symbolic (this is different in mediation with adult offenders, where the public prosecutor may refer cases to mediation). There are similarities with other European countries in organising VOM – especially with German, Belgian and Austrian solutions, as we have learned from those countries19. However, the first assumption was to make mediation suitable for the juvenile justice system in our country, with its main objectives including the following: while accommodating the public interest, criminal proceedings should be guided primarily by the good of the juvenile; educational objectives should be given priority; educational and corrective measures 19

For example, see the materials of the international seminar co-organised by the Council of Europe and the Institute of Justice, published in Polish and in English (Czarnecka-Dzialuk and Wójcik, 1999).

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imposed on a juvenile person should be individualized (Czarnecka-Dzialuk, 1999). Needless to say that this procedure fully respects the principles of the voluntary character of mediation and the neutrality of the mediator. The voluntary character of the process is manifested by the fact that mediation can only be commenced with two parties giving their consent, which can be revoked at any time. Another safeguard in the program was that only uncontroversial cases can be referred for mediation. This requires that the offender should at least admit committing the act, but more evidence must be obtained to confirm the circumstances of the case. The course of the mediation proceedings in the program is as follows: – After the case is examined and verified against the relevant criteria, the mediator writes letters to the parties. As a rule, the juvenile offender is contacted first and is informed about the existence of the program, its objectives and the possibility that the court will consider the results of mediation when sentencing. Finally, a direct meeting is proposed and the mediator ascertains the possibility of repairing the damage to the victim. – If the juvenile agrees to take part in the program, the mediator sends a letter to the victim presenting the program, the benefits and, in particular, the reparation proposal. The mediator also proposes a meeting without the participation of the offender. If the victim agrees, the mediator has to determine the victim’s expectations of compensation, her/his attitude toward the crime and the offender and to the mediation process. – If both parties agree to participate in the mediation, the mediator arranges a meeting where she/he encourages the parties, inter alia, to present their stories of the event (however, the aim of mediation is not to verify the facts for the benefit of the court). The mediator asks questions, discusses the effects of the offence, their feelings and, finally, the mode of resolving the conflict. The mediator is the supervisor of the entire process and makes sure that the interest of one party should not predominate. If the parties fail to reach an agreement during the first meeting, the mediator might deem it justified to propose another meeting and to give the parties more time to think. The program does not expressly mention the possibility of indirect mediation but it is also not ruled out. There were few cases mediated indirectly in the experiment. – If the parties reach an agreement, it is drawn up in writing (in the form of an out-of-court contract) and the time-frame to repair the damage is determined. It was stressed that the consequences should be borne by the juvenile offender personally and not by her/his parents. – The parents of the juvenile offender participate in the mediation sessions. At the beginning, their involvement was seen as a safeguard rather than

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as a party in dispute. In practice, however, mediators involved in the experiment often note that parents aspire to an active, if not a leading, role in the process. Thus, it is important to emphasize that communication should be established between the juvenile offender and the victim first, and the parents may get to voice their opinion later. The seating arrangement is crucial for a mediation meeting. – After the agreed period has elapsed, the mediator verifies (by phone, mail or in a direct meeting) that the obligations have been carried out. Then she/he sends the report on the mediation process and its result (success or failure) to the court20. This mediation model is still being promoted after the experiment by the PCM during its training. Some of its main features have been adopted in the regulation on mediation in juvenile offender cases. It lays down the sequences of the phases of mediation, by specifying the mediator activities: obtaining specific information from the court files, contacting the parties, organising separate preliminary meetings with victims and offenders and the face-to-face meeting (according to the regulation, indirect mediation is also allowed, but it is practiced rather infrequently), then monitoring the fulfilment of the agreement (if any) and writing the report for the court on the mediation proceedings and its results. The agreement must be in writing, and has to include the essence of the agreement, the time within which it must be fulfilled and it must be signed by the victim and offender and, if they are under 18, by their parents also. The mediator signs the agreement as well. Then the mediator checks whether the agreement is fulfilled and informs the family court. The family court does not send information feedback to mediators when the case is sentenced and mediators may find out the outcome of the case only if they themselves inquire about it. We think that in our model of VOM in juvenile cases the educative aspects are important, even if they were not originally listed as specific VOM goals. The mediators who took part in the experimental programs have often pointed out that they could see the educational value of mediation. Another aspect was the intention to at least attempt to resolve a conflict, and not limit the intervention to ensuring compensation to the victim. This is especially visible in peer mediation. One or two mediators conduct the meeting with the victim and the offender. The number of mediators is not regulated in the law. The difference in the costs of having one versus two mediators involved financial aspect may influence practice. In the experimental program there were two 20

According to the § 17.2 of the Regulation on mediation in juvenile cases the report should contain the reference symbol of files, name and address of the mediator, information on the number, dates and places of individual meetings with parties as well as of common meetings and the names of the participants, and the information on the mediation’s results.

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mediators in over 60% of cases. In PCM, as a rule, new mediators conduct the meeting together with more experienced colleagues.

5.1

Codes of ethics

In its guide to restorative justice (Aertsen et al., 2004) the Council of Europe draws attention to the need for an ethical framework. Mediators are recommended to follow their code of ethics elaborated in July 2002 by the PCM those belonging to the PCM are required to do so21. The main rules refer to respecting human rights and freedoms, holding parties in esteem, principles of professional competence, the voluntary character of mediation, impartiality, neutrality, acceptance of mediators by the parties. Then the moral ethical qualifications of mediators are listed, including honesty, patience, accountability, precision, friendliness, tolerance, concentration, active listening, and the need to complete the initial training, as well as further training. Another part of the code of ethics deals with mediators’ duties and tasks, rights and modality of cooperation among mediators in Poland and in other countries (helping, advising and listening to others’ counsels, loyalty, goodfellowship). It stipulates that mediators’ obligations include knowledge and application of ethical values to their work, of mediation rules, and of legal principles essential for mediation. The code also requires the ability to explain the principles of restorative justice and practical skills. Also, mediators are expected to take part as supervisors in mediations carried out by other mediators and sharing experience with them, and improve their knowledge by further training, seminars, conferences, and literature. The chapter in the code of ethics on cooperation among mediators draws attention to mutual help, advice, loyalty, kindness and the need to develop cooperation and not competition. There are meetings in mediation centres among mediators; there are also regular meetings once at month in Warsaw organised by PCM. Let us take a brief look into some ethics rules dealing with offenders and victims. The judges’ professional ethics rules have been adopted as a resolution of the National Council of Judiciary on 19 February 2003. There are general rules of behaviour, both outside the mediation service and while performing their duties. There are no prescriptions that are particularly important in the context of mediation, except for maybe § 8, which stipulates that the judge shall undertake action without delay and without exposing the coffers of the State to unnecessary expense. The Main Council of Lawyers adopted the lawyers’ code of ethics on 10 October 1998. It states (in § 44) that the lawyer is obliged to work towards 21

In Autumn 2004 there were 449 PCM members.

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solutions that would allow her/his client to save costs and to advise conciliatory settlement of the case, if this is justified in the client’s interest. The Association of Public Prosecutors has adopted in October 2002 the draft set of prosecutors’ ethical rules. In the part ”Relation to the parties” it is stipulated that penal proceedings should not aggravate unpleasant emotions caused by the offence. The prosecutor should display compassion and concern for the person suffering because of the offence, take care of the interests of victims who are poor, suffer from disabilities, or are unable to vindicate their claims. Towards the accused the prosecutor should show tact and firmness. She/he shall not institute nor proceed with the case if the evidence shows that the accusation has no grounds; she/he shall put forward all necessary evidence irrespective of whether they are in favour or against the accused.

6.

RECRUITMENT AND TRAINING OF MEDIATORS

First assumptions and indications with respect to recruitment and training, determined in the experimental program, were that mediators must be trained in the field of mediation and must be educated in the area of law, social rehabilitation, psychology, pedagogy22, sociology, or be experienced in working with children and youths. First and foremost, mediators should have good interpersonal skills and be of a friendly disposition. The mediators involved in the experimental program satisfied the aforementioned criteria. They were probation officers, social workers (employed in family support centres or educational and advisory centres), educators, civil servants working in rural areas and the graduates of the social rehabilitation departments. Some of them were professionally connected with juvenile justice. They tried to remain neutral and do not approach juveniles as ”customers” in their professional capacities. Of importance, one could not serve in a dual capacity in the same case. Recruitment procedures are nowadays as follows. Prospective mediators often apply after participating in conferences and meetings (they may apply for various reasons: to try something new and interesting, or to earn a little extra money). Applications may be submitted to the president of the regional court – if the applicant has already completed the mediation training – or to the institution authorized to carry out mediation or the institution, which organises the training. For example, the PCM coordinator for training sends a short questionnaire to the applicant, with questions concerning education, 22

Approximately equivalent to “educational social work”.

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experience in working with youth and other information concerning personal skills or features of character. As there are no precise criteria of appreciation, qualification is based on analysing the applications by two experienced mediators. Training itself gives another opportunity to observe whether the applicant possesses the qualities and skills to become a mediator. According to the standards mediation training 23 should deal with legal and organisational aspects of mediation practice, the legal basis of applying VOM in juvenile cases, rules for carrying out the mediation process, mediators’ rights and duties, their ethics, practical aspects of organising the mediation process, cooperation with justice system agencies, documentation, and international standards of mediation. A second part of the training includes learning about problems of social psychology, especially of mechanisms of developing conflicts, procedures for solving conflicts, the application of mediation in Poland and abroad, different models of VOM, knowledge of mediation processes. It must be a practical on-the-job training, aimed at acquiring mediation skills to carry out initial meetings with the parties, analyse and diagnose the conflict, carry out mediation meetings (mediation techniques), communication with the parties (active listening, questioning, helping in reaching the agreement). As far as the duration of training is concerned, PCM organises 5-day courses or 3 week-end courses for mediators. Then, there is second-stage training to get the certificate of consultants for solving conflicts, as well as “training of trainers”. Mediators trained by PCM are now in about 130 towns. It is still not enough to provide universal access to mediation24. The Regulation delineates the responsibilities of mediators, particularly those of informing all participants of the voluntary aspect of mediation and their right to withdraw from mediation at any stage of the proceedings, as well as the presentation of the benefits of mediation, and the implications of both participating in mediation and withdrawing from it. The responsibilities concerning the course of mediation have been presented above. The mediator’s tasks include facilitating exchange of views and opinions, help in understanding what is important for another party and how, what are his/her feelings, which conditions may be accepted and whether they are realistic, checking all parts of the agreement, awareness of how the parties should behave in future to avoid conflict or to prevent its escalation.

23 24

Contained in the regulation of 18 May 2001. Sometimes family judges reported their willingness to refer cases to mediation, but there was no qualified mediator in their area.

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7.

CONCLUSIONS

The experience of Poland may be useful for other countries, because it shows how we promoted VOM as well as additional problems. Even with the legal basis to carry out VOM, it is not easy to develop it in practice. A lot has been achieved, but it is clear that there is a continuous need to promote, explain, encourage and, of course, evaluate mediation practice. Therefore there is a need to create systems of data collection and evaluation. The most important aspect of VOM promotion seems to be keeping judges informed and interested in mediation in order to increase the number of referrals. The best way to achieve this goal seems to let them experience what VOM is through trainings or workshops. VOM should be included in regular courses for criminal justice officials and students, as well as policemen, who might play a role in promoting mediation directly to the parties. Another problem is that efforts in developing VOM practice are based on huge efforts of a relatively small group of people, who are just volunteers, without payment. There is a lack of organisational structure, and a lack of finances to employ staff. These aspects should also be strengthened.

REFERENCES Aertsen, I., Mackay, R., Pelikan, C., Willemsens, J., and Wright, M., 2004, Rebuilding community connections: mediation and restorative justice in Europe, Council of Europe, Strasbourg, pp. 31-34. BieĔkowska, E. (ed.), 1995a, Teoria i praktyka pojednania ofiary ze sprawcą. Materiaáy á konferencji miĊdzynarodowej (Warszawa, 26-27 styczeĔ 1995), Stowarzyszenie Penitencjarne Patronat”, Warsaw. Ċ mediacyjno-restytucyjne jako sposób rozwiązania ą BieĔkowska, E., 1995b, PostĊpowanie konfliktu miĊdzy ofiarąą i sprawcą przestĊĊpstwa: Standardy miĊdzynarodowe i perspektywy w Polsce, in: Teoria i praktyka pojednania ofiary ze sprawcą. Materiaáy á konferencji miĊdzynarodowej (Warszawa, 26-27 styczeĔ 1995), E. BieĔkowska (ed.), Stowarzyszenie Penitencjarne Patronat”, Warsaw, pp. 18-38. Czarnecka-Dzialuk, B., 1999, The experimental programme of mediation between the juvenile offender and the victim in Poland. Underlying assumptions and first experiences, in: B. Czarnecka-Dzialuk and D. Wójcik, eds., Juvenile Offender Victim Mediation, Oficyna Naukowa, Warsaw. Czarnecka-Dzialuk, B., 2004, Restorative Justice in Poland, d in: Angewandte Kriminologie zwischen Freiheit und Sicherheit, H. Schöch and J.-M. Jehle, eds., Forum Verlag Godesberg, Mönchengladbach, pp. 471-477. Czarnecka-Dzialuk B., and Wójcik D. (eds.), 1999, Juvenile Offender-Victim Mediation. Oficyna Naukowa, Warsaw. Czarnecka-Dzialuk, B., and Wójcik, D., 2001, Mediacja w sprawach nieletnich w Ğwietle teorii i badaĔ, Typografika, Warsaw. ”

”

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Czarnecka-Dzialuk, B., and Wójcik, D., 2000, Victim-offender mediation in Poland, in: Victim-offender mediation in Europe, European Forum for Victim-Offender Mediation and Restorative Justice, ed., Leuven University Press, Leuven, pp. 309-336. Gronowska, B., 1989, Idea pojednania sprawcy przestĊpstwa z jego ofiarą-uwagi ą na tle doĞwiadczeĔĔ amerykaĔskich i angielskich, Problemy PraworządnoĞci, 5:52. Kulesza, C., 1995, Mediacja a system wymiaru sprawiedliwoĞci: szanse, ograniczenia, á konferencji zagroĪenia, in: Teoria i praktyka pojednania ofiary ze sprawcą. Materiaáy miĊdzynarodowej (Warszawa, 26-27 styczeĔ 1995), E. BieĔkowska, ed., Stowarzyszenie Penitencjarne Patronat”, Warsaw, pp. 39-68. Wójcik, D., 2000, Restorative Justice, in: Crime & Law Enforcement in Poland on the threshold of the 21st century, Oficyna Naukowa, Warsaw, pp. 144-149. Wójcik, D., 2004, A Letter from Poland: Mediation in Polish Penal and Juvenile Law, Crime Prevention and Community Safety: An International Journal, 6(2):61-66. ”

PART THREE CONTINENTAL COUNTRIES

Chapter 8 VICTIM-OFFENDER MEDIATION WITH JUVENILES IN AUSTRIA Veronika Hofinger and Christa Pelikan -

1.

THE HISTORY AND THE GENERAL PICTURE OF VICTIM-OFFENDER MEDIATION FOR JUVENILES

The idea of Victim-Offender Mediation (VOM) was brought up in the context of the debate about a new Juvenile Justice Act that had been off and on the political agenda since the late 1970s. The initiative was taken predominantly by juvenile court judges, together with public prosecutors in the field of juvenile justice, and by the Probation Service Association. The impetus for reform came from a strong feeling that the repertoire of responses to deviant behaviour of young people was a rather restricted one and unduly severe. It must be added that these deliberations and debates took place in a climate of decreasing juvenile crime rates and alongside a noticeable tendency to deal with minor offences at the level of the public prosecutor’s office by not proceeding with prosecution, that is, by just dropping the charge. But this practice in turn bred discontent or at least uneasiness. Were there no more appropriate and carefully thought out responses than just dropping the case, especially where the victim was more severely affected, responses that at the same time would avoid the detrimental and stigmatising effects of criminal conviction? At that time, concepts and practices of diversion already existed in other countries. But the Austrian Probation Service – being a semi-autonomous agency at that time – did not want to simply adopt these concepts (as, for example, the Munich Brücke model of “work instead of punishment”)

157 A. Mestitz and S. Ghetti (eds.), Victim-Offender Mediation with Youth Offenders in Europe, 157-179. © 2005 Springer. Printed in the Netherlands.

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because the Service perceived a certain danger of being used as an agency of control inside the Criminal Justice System (CJS), a supervisor of orders of the court. This role would not match with the Austrian Probation Service’s role in the context of criminal policy. Thus, an alternative to the alternative was called for. At the theoretical level, the Institute for the Sociology of Law and Criminology (IRKS, Vienna) was both influenced by Christie’s notion of the re-appropriation of conflicts (Christie, 1977) and influential in disseminating it at the policy level. These proposals and contributions materialised in the form of a pilot project initiated and managed by a special working group within the Association for Probation Service and Social Work in the mid 1980s. Three court-based projects were set up in which victims and young offenders sought to resolve their conflict with the assistance of a social worker, a Konfliktreglerr (conflict resolver). The working group set out to make links with public prosecutors and judges handling juvenile cases at these courts. Right from the beginning the so-called Begleitforschungg (accompanying research) was to investigate ongoing work within the pilot project. The report was presented in 1986, followed by a publication of the results together with several related articles in a special issue of the Kriminalsoziologische Bibliografie (Haidar, 1988). At that time it was obvious that the pilot project was to be regarded as a success: it worked and it worked surprisingly well, especially concerning the willingness of the victims to co-operate and participate in VOM. They accepted the new approach and the vast majority approved it as beneficial. The pilot project was thus continued. Simultaneously the draft for the new Juvenile Justice Act was revised and concrete provisions for conflict resolution were included to make this new instrument applicable over a wider range of cases of juvenile delinquency. Over the course of intensive discussions with legislators, the concept of “conflict resolution” underwent some changes and modifications. In the end, the text of the law no longer used the term “conflict” but “out-of-court offence compensation”, embracing a broader understanding of the “restorative” effort. The new Juvenile Justice Act was passed in Parliament and came into force on July 1st, 1988. The success of the pilot projects with juveniles prompted their extension to adult offenders in the early 1990s (see also section 1.2 below). This is the place to highlight an important feature of the Austrian Aussergerichtliche Tatausgleich (ATA). It has developed into a general service, legally based – as we will see later – on provisions of the Criminal Procedural Law Amendment 1999 that apply to both juvenile and adult offenders and their victims. There is in fact no differentiation with regard to the organisation, the relationship to the CJS and the methods used – other

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than those required by the characteristics and the needs of the individuals involved. Talking about the Austrian version of VOM in general, therefore means talking about VOM for both adults and juveniles. The Austrian definition of VOM, or rather the understanding of those practising VOM, as contained in the legal texts, does not use the term “mediation”. The literal translation of the Austrian version of VOM, the ATA, is out-of-court-offence-compensation. By focusing on Tatausgleich (offence compensation), understood quite broadly, the scope of ATA is wider than just VOM: it may also include reparation in cases without a personal victim. The agency which is legally responsible for the referral of cases is the public prosecutor’s office and – in fewer cases – the judge. VOM is performed by the ATA-units of NEUSTART (former Association for Probation Service and Social Work).

1.1

Implementing a pilot project

Starting from the task force that had organised and administrated the pilot project for juveniles, a special branch within the Austrian Probation Service developed. A structure that was tailored to safeguard the specific character of mediation work as distinct from mainstream probation work was searched for. Additionally, it was of primary importance to raise the professional profile of the mediators’ work. At the same time, an incorporation of the ATA-units into the framework of the Association for Probations Service and Social Work secured financial support and allowed the association’s potential as a political pressure group to be used to promote the aims of restorative justice. Local ATA-bureaux in major Austrian cities were founded. They established contact and developed permanent working relations with the public prosecutor’s offices and the courts in the region. Austria represents an example of a nationwide mediation policy and practice that is, if not uniform, at least geared toward a most widely accepted general direction and based on common purpose. The way it started and the important role played by the Association for Probation Service and Social Work and its ATA-units, the ongoing exchange this agency has practised with the policy makers, the public prosecutor’s office and the judiciary: all these have contributed to establishing and maintaining the search for a common policy. This, however, is not always easily achieved.

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The nationwide coverage of VOM

A special quality of the Austrian ATA system lies in its nationwide coverage. There are of course regional differences concerning the application. The number of referrals is higher in the Western provinces (Salzburg, Tirol and Vorarlberg) and in Styria, markedly lower in Vienna. We also find some differences concerning the mode and frequency of communication between the state prosecutors and the ATA-bureaux and – albeit only small – differences in the methods for handling of cases. Overall, 15 NEUSTART T centres with ATA-bureaux provide for VOM; additionally, there are four smaller sites where the workload does not justify a full-time mediator (whose workload is about 140 cases per year). Mediators from the larger centres support them. In Austria about 10,000 cases are mediated each year. In 2002, 1,536 mediations dealt with juvenile offenders. However, the number of referrals has been decreasing since the year 2000, especially in Vienna. This development has become a matter of grave concern for the members of the Viennese ATA-bureau (see also section 7 below).

1.3

The legal and institutional framework of VOM for juveniles and adults

Until the reform of the Criminal Procedural Law, the road to mediation was offered only to juveniles as part of the Juvenile Justice Act of 1988 ( (Jugendgerichtsgesetz, JGG). Since the year 2000, VOM is authorised by § 90 StPO (Criminal Procedural Law Amendment 1999). This so-called “diversion package” contains mediation as well as other diversionary measures (as community service, probation, and a “fine”) and applies to both juvenile and adult offenders. Many of the former distinctions between juveniles and adults have therefore disappeared. A directive published in 1999 details cooperation between the agencies involved and gives instructions regarding formal matters. But the Juvenile Justice Act 1988 is still relevant in specifying some regulations for minors. Their access to diversionary measures is easier, the scope of application broader and other special regulations favour the young offenders. The diversion package also provides for other measures that have a limited restorative impact. This is true especially for the possibility of Community Service Orders. In addition, with all these diversionary measures, the offender is asked to compensate the victim. One can say though that only with VOM is the restorative ideal really put into practice and actively sought for. The rationale of diversion is highly offenderoriented and mentioning compensation serves as a mere formalistic annex.

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The inclusion of VOM into this range of diversionary measures is therefore problematic; we will come back to this point later. Within the framework of the justice system the process of VOM has “a room of its own”: after the referral of a case by the public prosecutor (or the judge) to an ATA-bureau until the final report by the mediator, the CJS leaves the process relatively autonomous. In this phase of “temporary autonomy” the ATA-bureaux of NEUSTART take over. The ATA-unit of this association is the only provider of VOM in all of Austria. NEUSTART today is an autonomous agency subsidised mainly by the Ministry of Justice. It is a private association with its own management and supervisory committees. Funding is secured by annual contracts with the Ministry of Justice and to a very small degree by other institutions (see section 3 below). As early as 1987, when the overwhelming success of the pilot projects with juveniles became apparent, it was suggested that the out-of-court approach to conflict resolution should be quickly extended to the general criminal law (Pilgram, 1984; Schroll, 1987). However, it was not until 1991 that a new pilot project for adults was launched. The design was quite similar to the project with juvenile offenders although there were more courts involved in the new pilot project and the restrictions regarding the offences included in the programme were tighter. Altogether working with adult offenders turned out to be more difficult: victims and alleged offenders alike were less open to this new way of resolving their conflict, although the overall degree of participation was still quite high (86% of the alleged offenders, 84% of the victims). But some of both victims and offenders preferred a regular criminal trial; also within the VOM procedure some of them stuck tenaciously to the rules and roles assigned to them in the formal criminal process. Nevertheless, the rates of successfully completed arrangements under the ATA-procedure and the overall levels of satisfaction reported by clients proved also very high in the field of general criminal law (of the cases in which both victim (81%) and offender (94%) had been successfully contacted, 86% ended with an agreement). During the following years (the mid-nineties), a growing number of courts were included into the programme, thus expanding its scope beyond that of a pilot project. But despite the undeniable proof that out-of-court offence compensation worked, opposing forces rallied when plans for incorporating mediation into the criminal procedural law became more concrete. Objections were voiced by two different groups: the conservative party and some representatives of the CJS on the one hand and representatives of the women’s movement, more specifically the women’s refuges, on the other. The latter were not against ATA in general, but thought that this procedure should not be applied in domestic violence cases.

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As these cases do not play an important role with regard to juvenile delinquency, the intense debate that ensued and went on for several years will not be discussed here in greater detail1. In 1999, the new legislation including ATA for adults was finally passed in Parliament and came into force at the beginning of 2000.

2.

LEGISLATION AND LEGAL PROVISIONS FOR THE APPLICATION OF VOM

2.1

General characteristics of the Juvenile Justice System

Basically, the Penal Code (Strafgesetzbuch, StGB) and the Criminal Procedural Law (Strafprozessordnung, StPO) are applicable to everyone. Austria has additionally a separate Juvenile Justice Act (JGG) which is valid for minors from the age of 14 to under 18. It differs in several aspects from the general one, the most important being the provision that the upper limit of prison sentences for juveniles is always half of that stated in general Penal Law. In addition it contains more favourable procedural provisions. The reform of the JGG in 1988 represented a turn towards the restorative path in criminal justice, with the introduction of ATA as the centrepiece of the reform. The Austrian model of the Juvenile Justice System can be called a “balanced” justice model. In contrast to the so-called welfare model, which focuses on the personality of the offender and his or her re-education, the justice system model puts more emphasis on the offence itself. Clear criteria for imposing sanctions are fixed in advance and the young offender’s constitutional rights (due process) must be guaranteed. It can be called “balanced” because it also takes the special needs of young offenders into consideration: imprisonment is regarded as the last resort and there are many non-custodial measures (Courakis, 2001). An amendment to the JGG in 2001 restricted the scope of application to minors under the age of 18 (in the course of the reform of 1988 it had been raised to under 19 years old). On the other hand, there is now a new group of “young adults”( junge Erwachsene) from the age of 18 to under 21 for which special regulations are in force, but many of the more favourable provisions of the JGG are not applicable to them. These restrictions also concern the wider scope for using diversionary measures that holds for juveniles.

1

For further reading see Pelikan (2000).

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VOM legislation and its context

The Juvenile Justice Act, the Criminal Procedural Law and the Penal Code provide different possibilities to discontinue a case. The public prosecutor can drop a case without any further measures or sanctions under certain conditions the most important being: lack of sufficient evidence for drawing up an indictment (§ 90 StPO), the offender being under 16 years old or immature (§ 4 section JGG); or the offence being punishable with less than five years of imprisonment and the guilt not being severe. In this latter case an additional precondition has to be fulfilled, namely that no further measures are necessary to prevent to offender from further offending (§ 6 section JGG). In case this simple dismissal is not suitable and, as an alternative to prosecution, the prosecutor or the judge can impose diversionary measures. According to § 90a StPO there are four possible diversionary measures. The public prosecutor can impose a fine, a probationary period (with or without “probation assistance”2 or the obligation to fulfil special duties) or community service. The fourth possibility for diversion is ATA. The public prosecutor or the judge (§ 90b) can divert from prosecution when there is: • sufficient clarification of the facts • no severe guilt • no loss of life • a maximum range of punishment for the offence (for adults) not exceeding 5 years and • no punishment necessary to prevent the alleged offender or others from committing further crimes (Spezial - und Generalprävention). Furthermore, the offender has to be willing to take up responsibility for the crime, to make up for its consequences, to try to repair the damage and to reflect on the reasons that led to the offence. The victim’s consent is necessary unless this consent is withheld for reasons that are not relevant with regard to the criminal proceedings. The injured party’s interests have to be considered to the greatest extent possible. For juveniles, § 7 of the JGG specifies regulations: • the specific situation of the young offender has to be considered when imposing a fine or community service; • the victim’s consent to VOM is not necessary, therefore the offender’s effort to make some sort of compensation does suffice; • general prevention has to be considered only for “special reasons”.

2

Due to the autonomous status of the Austrian Probation Service there are no probation officers in Austria but rather social workers providing probation assistance.

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According to § 5 of the JGG, the upper limits of fines and custody for young offenders are half of that for adults (no minimum sentences are prescribed). Therefore a wide range of offences can be diverted.

2.3

Benefits, problems and disadvantages of current legislations

VOM legislation allows in fact for a wide range of offences to be referred to the ATA-services. The selection of individual cases offers a wide margin of discretion for the state prosecutors (in principle also for the judge). This can be regarded as an asset as well as a liability. We do find state prosecutors who just do not regard this instrument as suitable and therefore will make very few referrals. Experience has shown that referrals are most appropriate where the referring agency has sufficient knowledge about the functioning and the potential achievements of VOM. Ongoing contacts between VOM services and the State prosecutors are in addition to proper training of the legal professions an indispensable prerequisite for gaining and maintaining this knowledge and understanding. In general the protagonists of the CJS prefer clear directives as to which type of cases should be placed with which type of diversionary measure. The legal provisions do not provide this directives and quite consciously so. Although the conditions for a referral to ATA in the Austrian law are rather precise, there are no recommendations as to which concrete cases should be referred to VOM. There is, in fact, no type of cases explicitly excluded. We regard this as a clear advantage, despite the fact that in practice only certain types of cases are referred – those with little ‘relational distance’ (i.e., where a close, intimate relationship exists) and of minor to middle severity. But in that way referral of cases remains a matter of discourse between the VOMservices and the agencies of the CJS. The problem of the overall insertion of VOM into the diversion package was already indicated. A pronounced offender-orientation is the price that was paid for having nationwide provisions for VOM in general criminal law. We have to acknowledge the fact that it proves difficult to have legislation without this ‘offender-bias’ that is inherent the rationale of the criminal law – and the criminal procedure.

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3.

THE ORGANISATIONAL STRUCTURE OF VOM FOR JUVENILES

3.1

VOM and its relation to the Criminal Justice System

The mode of insertion of VOM into the CJS follows the diversionary path. This implies that discretion of the criminal law agencies, in this case the state prosecutors is exercised at the beginning as well as at the end of the VOM procedure. Participation in VOM requires the consent of both victims and offenders. The VOM services are entrusted with the task of establishing contact with first the offender and then the victim and to inform them about the possibility of VOM and its potential consequences, as well as about the course the ordinary criminal procedure would take, if they do not opt for VOM. Not only at the onset of the procedure but during the whole process the offender can demand a regular trial. The victim’s consent is not needed in cases of juvenile delinquency, but the victim also can also opt out of the VOM procedure at any time. Figure 8-1 shows the flow of criminal cases referred by prosecutors and/or court to ATA bureaux. The central (gate-keeping) role of the public prosecutor’s office is clear and indicated by the dotted arrow – so is the subsidiary function of the courts in making referrals. The box marked “diversion” which also lists the diversionary measures, other than ATA, pertains to the phase of decision-making by the public prosecutor’s office. The same process occurs but only as a subsidiary consideration at the level of the judge’s decision-making in the way indicated in the relevant box. The figure shows also that whenever the VOM process comes to a halt – because of lack of contact with the parties, the failure to come to reach an agreement or the non-fulfilment of the agreements despite repeated admonition by the ATA-bureau – the case has to be referred back to the referring agency.

3.2

Financial support, administration and management of VOM

The association NEUSTART as the sole provider of VOM services in Austria is a private organisation that offers a wide range of social services that are related to the CJS: probation, after-care, job-counselling for former inmates, etc. The Ministry of Justice contributes almost 90% of the financial support. Additionally, NEUSTART is supported by other ministries, federal governments, communities, and even the Austrian Labour Market Service (AMS).

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An offence (committed by a juvenile) is reported to the police. The police refer the case to the public prosecutor’s office.

Discontinuation of prosecution according to § 90 StPO or § 42 StGB, § 4 or § 6 JGG (see 2d).

Case is referred to court (Indictment).

Public prosecutor

Diversion P Probationary period ATA fine or community service

Case is referred to an ATA-unit of NEUSTART

Mediator contacts the involved parties.

Mediation takes place. Agreement?

Agreement fulfilled?

During the trial, the judge or the involved parties can ask for diversion from pprosecution. The case can be referred to an ATA-bureau with approval of the judge. The public prosecutor must be heard and can prevent the referral.

No contact can be established/ no consent to VOM Back to Criminal Justice System.

No agreement.

Agreement not fulfilled.

Agreement fulfilled. Mediator informs the public prosecutor or the judge (final report must be checked by the head of the ATA team). The public prosecutor or the judge decides whether the case will be closed (discontinued). Special record (no criminal record) for 5 years.

Figure 8-1. Referral of criminal cases.

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Sponsorship from the European Union is currently minimal (Neustart, 2003). According to its annual plan for 2003 NEUSTART assigns about 6 4 million € (about 18% of its budget of 30 5 million €3) to ATA (the main part of the organisation’s financial resources are used for probation services). As to the administration and management of the ATA services there is one headquarters, the ATA unit of NEUSTART, based in Vienna, responsible for the whole organisation. At the regional level the offices are managed by a director who establishes contact with the public prosecutor’s office and the court. He/she is also accountable for the staff and for the supervision of the quality of services. The degree of autonomy of the regional bureaux is relatively high. The Viennese headquarters of NEUSTART consists of a committee, two chief executive directors and different departments. Additionally, there are four bureaux/ houses in Vienna, one of them harbouring the two ATA teams. In the regional bureaux of NEUSTART the ATA-units are not located separately from other branches of NEUSTART (probation, after-care for released prisoners, etc.); there is usually a “diversion team” responsible for taking care of the social works-side of all diversionary measures including ATA. In 2002 there were altogether 86 mediators (Konfliktregler ( ) working in the different ATA-bureaux. In Vienna each of the two teams consisted of 10 persons. One team – additionally to VOM with adults – specialises in mediation with juveniles. There is no strict difference between working with juveniles or with adults in the regional bureaux. A separation of services is taking place only insofar some mediators in a bureau focus on one of these groups. While there are volunteers working as probation assistants, there are no such volunteers or lay mediators conducting VOM.

3.3

Communication between the Criminal Justice System and the ATA-units

We have already mentioned that from the beginning this was regarded as very important. In Austria, mediators and members of the judiciary and the public prosecutor’s office meet at regular intervals to discuss and share experiences on difficult cases. In the phase of the pilot projects, every case suitable for ATA was scrutinised and discussed during an interdisciplinary meeting (except for the Viennese offices). This practice was continued until a common understanding of suitability had been reached and was then

3

http://www.rechtsinfo.com/extneustart.html.

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reduced to less frequent meetings dealing only with specific cases where doubts concerning referral or further handling had arisen during the process. The Criminal Procedural Law Amendment has also introduced the possibility for the public prosecutor or the judge, in case he/she is not sure about the kind of diversionary measure to apply, to contact the so-called Clearingstelle (clearing-house) provided by NEUSTART which assists him/ her to find the best solution. Unfortunately, this feature is very seldom used. An important means of promoting cooperation are special seminars, taking place about once a year. They are offered to prosecutors and are organised by the ATA-bureau of Vienna in cooperation with experienced state prosecutors. The seminars are intended to give basic information about VOM and especially to help the state prosecutors to develop an understanding for what makes a proper referral. The mediators try to convey to the prosecutors their understanding of conflicts that are suitable for being dealt with in mediation. According to the experience of the mediators at the Austrian ATA, this type of intervention is suitable for conflicts within the family or in the neighbourhood, at work, in school and in the community. Situational conflicts ee.g., g in road traffic are also suited for ATA4 excluding nonintentional bodily injury in a traffic accident. On the other hand, ATA is not regarded as appropriate for petty misdemeanours, or for juveniles needing a probation officer/assistant because of their psychological and social problems. Other examples of cases that are regarded as not suitable for VOM are shoplifting and drug offences5.

3.4

Advantages and disadvantages of the organisational set-up

As mentioned before, the decision for a referral to VOM lies mainly within the public prosecutor’s discretion. If the judge proposes ATA, the prosecutor can object to this proposal and thus impede it. Since the judge’s decision might be understood as an implicit criticism of the State prosecutor’s decision to not refer a case, this may be one of the reasons why judges’ referrals are rather seldom: in 2002, only 4% of all mediations have been induced by judges (Neustart, 2002). The fee that is charged for the mediation session is another critical point: unless the offender’s means of subsistence are endangered, she/he has to pay up to 145 € for ATA. In case the money is not paid, the prosecution will be continued even when the outcome of the VOM was positive. 4 5

See also figure 8-6 in section 4.3. See: Verein für Bewährungshilfe und Soziale Arbeit (now: Neustart), Diversion. Indikationsgrundlagen für Diversionsentscheidungen, Wien (unpublished paper).

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Finally, the community does not figure in the whole process outlined above. The lack of its involvement can be seen as one of the disadvantages of the Austrian VOM-practice.

4.

CATEGORIES AND PROFILES OF JUVENILE OFFENCES IN VOM

4.1

What is the quantitative scope of VOM within the Criminal Justice System?

First of all a few figures and charts will give a picture of the size and the importance to be attributed to VOM for juveniles within the Austrian CJS. For that purpose the overall numbers of alleged juvenile offenders as compared to the number of adults offenders and of young adults are presented in Figure 8-2. In 2002, of over 210,713 alleged offenders in Austria, 21,561 were juveniles (14 to under 18 years old) and 26,011 were “young adults” (18 to under 21).

90%

163,141

80%

77%

70% 60% 50% 40% 30%

26,011

20%

21,561

12%

10%

young adults

juveniles

10% 0% adults

Source: Criminal statistics of the police authorities and calculations by Arno Pilgram (IRKS, Institute for the Sociology of Law and Criminology, Vienna). Figure 8-2. Alleged offenders in 2002.

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In Figure 8-3 we want to provide information on the proportion of ATA referrals as compared to the whole range of public prosecutors’ decisions with regard to juvenile alleged offenders6. 45% 40% 35% 30% 25% 20% 15% 10% 5% 0%

42%

30%

13%

10% 5%

Case dimissed § 90 StPO and others

Discontinuation of prosecution § 6 JGG

Conviction

Discontinuation after diversion including ATA

Dicontinuation after probationary time

Source: Österreichische Bundesregierung (2001).

Figure 8-3. What happens to young (alleged) offenders? (total number of young alleged offenders: 27,903).

4.2

What is the number of referrals to VOM?

In the course of 17 years about 75,000 cases have been handled through VOM. The rapid growth during the early 1990s was followed by a steady decrease since the year 1997. In 2002, 1,536 cases of juvenile offenders have been referred to ATA (15% females). As shown in Figure 8-4, this is considerably less than in the preceding years. One reason for this decreasing numbers of referrals may be due to the fact that since 2001 offenders at the age of 18 are no more regarded as juveniles in terms of the law (there have been 7,264 referrals of cases concerning adults in 2002).

6

Numbers are only available for the year 2000.

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3000 2500 2000 1500 1000 1516 1236 1426

500 116 0

606

1884 2033

2341

2599 2657 2727 2680 2579 2164 2050 1536

712

363

1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002

Source: NEUSTART (2002).

Figure 8-4. VOM cases referred to ATA per year in the period 1985-2002.

4.3

Which types of offences are referred to VOM?

In 2002, 66% of offences committed by juveniles and referred to ATA concerned offences against physical integrity (assault, brawls, etc.). Property offences constitute the second major category with 32% (Figure 8-5). other offences 2%

property offences 32%

offences against o physical integrity 66%

Source : NEUSTART (2002).

Figure 8-5. Categories of offences referred to ATA in 2002 (1,536 valid cases; % values rounded).

Another important differentiation of categories focuses on the victimoffender relationship, or as it is sometimes called, on the “relational distance”. In Figure 8-6 we can see that situational conflicts (i.e., conflicts arising out of transitory encounter in a special situation: brawls in public

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places or related to traffic situations) amount to over 50% of all cases; we have only very few neighbourhood conflicts, about 11% cases that arise from conflicts at school or at the workplace, while 25% are conflicts with friends, and those with very small relational distance, i.e. family and partnership conflicts amount to about 4% of all cases. 60% 51% 50%

40%

30% 24% 20%

10% 10%

9% 2%

0%

situational

friends, etc.

school

no persons partnership involved

2%

1%

family

work

1%

neighbourhood

Figure 8-6. Relational distance between victims and offenders in 2002 (1,536 valid cases; % values rounded).

4.4

What is the outcome of VOM?

Mediation between the juvenile offender and the victim can in general be regarded as very successful: in 2002, 86% of the cases resulted in an agreement. Figure 8-7 shows what happens after mediation (or its failure). What do we know about the effects of VOM ? As already mentioned, accompanying research was an integral part of the pilot project with “Out-of-court conflict resolution for juveniles” that started in 1985 (Pelikan, 1991). This research has shown a very high degree of willingness to take part in VOM: there was a high participation rate of the young offenders (about 90%) and even a higher rate of participation of those victims that had been contacted, with only 4% not willing to co-operate. The overall rate of successfully resolved conflicts was about 75% of all referrals which in turn amounted to some 90% of the cases where contact with the offender was established (Pelikan and Pilgram, 1988). Qualitative

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analysis also indicated a shift in officials’ (judges, prosecutors) perception of crime and punishment towards the value of non-court oriented determinations, but the extent and durability of this shift remains a matter of conjecture (Pelikan, 1988).

continuation of prosecution 14% other discontinuations 6%

Discontinuation of prosecution for juveniles in general (§ 6/1 JGG) 1%

Discontinuation of prosecution after ATA (§ 90g StPO) 79%

Source: NEUSTART (2002). Figure 8-7. Completion of ATA juvenile cases in 2002 (1,770 valid cases).

In addition there are several studies that provide information about the victims’ and offenders’ reaction and satisfaction with the VOM procedure and its outcome. Most of them pertain to adults only though. Also the only study on recidivism so far focuses on adults (Schütz, 1999). The ATA Department for controlling and statistics provides a lot of data that give interesting insights and can be used as the basis for further research. The homepage of the association (www.neustart.at) not only informs about the association and its fields of working, but also offers legal advice per email within 24 hours.

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THE PRACTICE OF VOM: MODELS, APPROACHES AND THEIR THEORETICAL FRAMEWORK

A very important aspect of VOM practice in Austria is the emphasis on direct mediation; indirect or ‘shuttle mediation’ are used to a smaller degree. Rather infrequently we find VOM with a proxy victim. Another important feature of VOM practice in Austria is that mostly only one offender and one victim are most often involved in the mediation effort. But multi-party mediation is sometimes applied with groups of juveniles. Also parents or friends have sometimes been involved in VOM processes with juveniles. The setting in these instances remains by and large that of VOM in the narrower sense and does nott resemble family conferencing. In the case of both, juveniles and adults, lawyers are frequently part of the effort, though the proper mediation session is usually restricted to the offender, the victim and one mediator. In most cases a single mediator takes up one case – that’s the standard method (klassisches Einzel). l Only in special cases a pair of mediators will work together, as e.g. when groups of juveniles are involved and when newcomer mediators are trained. Besides this so-called standard method, different approaches and methods are in use to meet the concrete requirements and demands arising out of different kinds of cases. Since the beginning of the pilot projects, there has been research on the development of methods suitable for mediation practice. Within the Viennese ATA bureaux methods were created, discussed, tested, refined and evaluated (Watzke, 1997). The following procedures and methods are applied in Austria (Watzke, 1997; Zwinger, 1993; Koblinger, 2000): • Standard method. d Before direct mediation takes place, the mediator invites the offender and the victim to have separate interviews. If both agree to search for a common out-of-court solution, the proper mediation session takes place. This approach is used most frequently. • Indirect or shuttle mediation. A special type of indirect mediation is used in cases where no personal victim is available (e.g., in cases of racist incidents). A substitute is used to take over the victim’s part. This representative might be a person from the victim’s (ethnic) community or a social worker who takes over the role of the respective “other”. • Mixed double. This setting that was initially designed for partnership conflicts is now also used for other forms of conflicts in close relationships, e.g., in the (extended) family. It also starts with a separate interview. The mediators then “retell” the stories they have heard in a “session of four”. At the beginning the conflict partners just listen and only afterwards do they discuss their problem and try to arrange for a

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mode of reparation. A special technique used in the course of the mixed double is the “reflecting team”. The mediators exchange their impressions and thoughts with regard to the process; the concerned couple just watches and listens. • Tandem. No separate interview takes place but the session starts with the victim or the offender telling his/her story to the mediator while they both sit back-to-back so that they can not see each other. If an agreement to the continuation of VOM is reached, a triangular dialog ((Dialog im Dreieck) k is arranged. The conversation is still reduced to one of the conflict partners and the mediator, the other partner just listening. Only if a basis for a constructive conflict resolution is established, a direct mediation session is held. • Staffelrad (relay cycle).This method is used when working with groups of offenders. Again, separate interviews take place, first with the victim, then with the group. If the group is willing to take over responsibility, a mediation session is held: one offender after the other meets the victim and apologizes. In the end, all the involved persons gather to talk about reparation (Altweger and Hitzl, 2001). The theoretical framework that was developed by the IRKS, based on Nils Christie’s idea of a re-appropriation of the conflict, had informed and guided the pilot projects. But it has by and large receded to the background and no longer wields any substantial influence. It is rather the requirements of daily practice and ‘case-work’ that guide the activities of mediators. Methodological sophistication is quite high and it forms an important part of the training of mediators – it is also a subject for discussion between different VOM centres. A code of ethics for mediators or explicit standards for judicial conduct does not exist, though. On the other hand, one can rightly assume that the highly elaborated initial and further training, that mediators working in the field of criminal law have to undertake, guarantees a certain standard of the quality of VOM.

6.

THE MEDIATORS IN THE AUSTRIAN VOMSERVICES: PROFILE OF A PROFESSION

6.1

Recruitment and training of mediators

At present, a degree either as a social worker, lawyer, psychologist or sociologist or some similar professional degree – a combination of qualifications being an advantage – is required to apply for a job as a mediator in criminal matters. When the project was in its pilot phase, only

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experienced probation workers were considered eligible to undertake this new kind of professional work, whereas now mediators are recruited from a wider range of professions. The only path to the profession of a mediator for VOM goes via the ATA units of NEUSTART. The main responsibility for recruiting mediators rests with the administrative bodies of the regional ATA bureaux. To be more precise, the head of the bureau makes the final decision to accept a candidate for training after examining the application files and conducting a personal interview. A member of the national office of NEUSTART in Vienna supports him or her. There thus exists a kind of exclusive route for working as a mediator inside the CJS. Due to the history of the Austrian ATA, the professional profile developed exclusively in the way of learning by doing. Virtually no training for mediators was available in Austria when the projects inside the CJS started. The overall orientation of mediation work and the standards of professional practice emerged by doing the ATA and by reflecting on that work, by exchanging experiences, and through concurrent research, which served to systematize practical experience and the conclusions drawn from it. The training schemes used at present for mediators inside the CJS still mirror this historical experience. The training is very important and lasts longer than in other European countries. Indeed, it lasts for four years. It starts with one year of in-service training at an ATA bureau organised in the way of apprenticeship, with the newcomer first watching and then working together with an experienced mediator, until he/she handles cases on his/her own. Alongside the training, there are three weeks of instruction (two dedicated to methods and one to criminal and civil law each). During the three following years, the new mediator is already working full-time, additionally attending courses for five weeks per year (again, courses about methods and about criminal and civil law). Individual supervision of up to two years is provided for beginners and further visits at other institutions can be arranged. Advanced and continuing training is offered as part of the comprehensive programme of NEUSTART. At least one week a year can be used for attending seminars. As part of that programme, ongoing exchanges between members of the public prosecutor’s office and the judiciary and ATA-social workers, organised around specific topics, are arranged.

6.2

The activities and responsibilities of mediators

The mediators’ responsibilities are stipulated in the Probation Act. According to § 29a, the mediator shall assist the involved parties to “balance

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their interests”. He/she has to contact the alleged offender and the victim and to inform them about the mediation programme, its basic purpose, the procedure and the consequences. He or she shall explore the suspect’s willingness to accept responsibility for the offence, to search for reasons that led to this deviant behaviour and to repair the damage. The mediator safeguards the victim’s rightful interests and explores his or her requests and expectations. The mediator has to inform the public prosecutor or the judge about the outcome of the mediation or its failure. The head of the ATA team has to check each report. She/he is also responsible for the representation of ATA and the criminal policy it is grounded in towards other agencies and the wider public. In addition, NEUSTART has a special media spokesman that takes care of the latter task. The average workload of a mediator in the field of criminal law in Austria is 132 cases per year. Due to the most recent developments regarding the NEUSTART budget and the restrictions imposed on it, this workload per person is presently increasing. The cases referred to the ATA-bureaux are discussed in weekly conferences and are allocated to one or two mediators according to their own preference and decision. These conferences also serve as a forum for the presentation and discussion of any problem emerging in the course of a mediation process. As mentioned before, continuing training and supervision is offered for employees of NEUSTART. Special seminars serve the purpose of offering exchange between local ATA bureaux and between different regions, but time and again complaints about too little overall communication – also about too little information about international matters – can be heard.

7.

CONCLUSIONS

The main achievement of VOM in Austria lies within its nationwide application. It has indeed become an accepted part of the array of reactions to offences that come to the notice of the criminal law agencies, i.e. the state prosecutors. The highly professional quality of VOM, the development of specific procedures to be applied to different types of cases and victimoffender constellations (e.g., VOM in cases of domestic violence) is to be regarded as another positive asset of the Austrian ATA. On the other hand an unwelcome juridification of VOM can be perceived. Initially conceived as a strategy whereby victims and offenders voluntarily engage in a mutual effort to recover “their” conflict (in Christie’s terms), it is becoming a routinized and all-encompassing diversionary practice. The basic value of an active resolution of conflicts between autonomous individuals is jeopardized. The danger lurking in the tightly

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woven web of regulations is that the very special nature of the mediation procedure and its potential for furthering self-activity and democratic participation is set aside, smothered, by a diversionary measure that consists in the establishment of a type of secondary and second-rate criminal procedure. Moreover it can be added that, presently, there is some concern regarding the decrease in referrals of juvenile offenders to ATA. Although part of this development might be attributed to an increasing use of community service orders, it cannot be denied that the state prosecutors especially in Vienna have become more reluctant to use ATA as a mode of reaction to juvenile delinquency. Another effort of discussing its potential will be needed; probably also more research on ATA’s efficacy.

REFERENCES Altweger, A., and Hitzl, E., 2001, Kundenzufriedenheitsanalyse der Geschädigten im Aussergerichtlichen Tatausgleich, Innsbruck (diploma thesis). Banner, G., 1999, Peer-Konflikt-Mediation in allgemeinbildenden höheren Schulen, Stadtschulrat für Wien, Wien. Christie, N., 1977, Conflicts as Property, British Journal of Criminology, 17(1):1-15. Courakis, N., 2001, A Typology of Juvenile Justice Systems in Europe, Committee of Experts on new ways of dealing with juvenile delinquency and the role of juvenile justice, Council of Europe, European Committee on Crime Problems, Strasbourg. Haidar, A., et. al. (eds.), 1988, Konflikte regeln statt strafen! Über einen Modellversuch in der österreichischen Jugendgerichtsbarkeit, Kriminalsoziologische Bibliografie, Verlag für Gesellschaftskritik, Wien. Koblinger, N., 2000, Mediation im Strafrecht – Der Aussergerichtliche Tatausgleich (ATA), in: Mediation in Österreich, E. Töpel and A. Pritz, eds., Orac, Wien, pp. 157–163. Neustart, 2002, ATA, Referat für Finanzen, Jahresbericht intern (unpublished). Neustart, 2003, Financing; http://www.neustart.at/ueber_neustart_finanzierung.php. Österreichische Bundesregierung, 2001, Sicherheitsbericht 2001, Kriminalität 2001, Ministry of the Interior, Wien. Pelikan, C., 1988, Der Staatsanwalt als Sozialarbeiter, der Sozialarbeiter als staatliche Autorität. Ein Konzept geht in die Praxis, in: Konflikte regeln statt strafen! Über einen Modellversuch in der österreichischen Jugendgerichtsbarkeit, Kriminalsoziologische Bibliografie, A. Haidar et al., eds., Verlag für Gesellschaftskritik, Wien, pp. 113-127. Pelikan, C., and Pilgram, A., 1988, Die “Erfolgsstatistik„ eines Modellversuchs, in: Konflikte regeln statt strafen! Über einen Modellversuch in der österreichischen Jugendgerichtsbarkeit, Kriminalsoziologische Bibliografie, A. Haidar et al., eds., Verlag für Gesellschaftskritik, Wien, pp. 85-112. Pelikan, C., 1991, Conflict Resolution between Victims and Offenders in Austria and in the Federal Republic of Germany, in: Crime in Europe, F. Heidensohn and M. Farrell, eds., Routledge, London and New York, pp. 151-171. Pelikan, C., 2000, Victim-Offender Mediation in Domestic Violence Cases – A Research Report, United Nations Crime Congress, Ancillary Meeting, Vienna;

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http://www.restorativejustice.org/rj3/UNBasicPrinciples/AncillaryMeetings/Papers/RJ_U N_CPelikan.htm. „ Pilgram, A., 1984, Der Modellversuch “Aussergerichtlicher Tatausgleich im Erwachsenenstrafrecht – Vorgeschichte, Konzept und Organisation, in: Ausweg aus dem Strafrecht – der Aussergerichtliche Tatausgleich. Jahrbuch für Rechts- und Kriminalsoziologie ’94, W. Hammerschick, C. Pelikan and A. Pilgram, eds., Nomos, Baden-Baden, pp. 77-94. Schroll, H.-V. 1987, Die Konfliktregelung als Reaktionsform im Strafrecht, Weißenbach/ Attersee (unpublished). Schütz, H., 1999, Die Rückfallhäufigkeit nach einem Aussergerichtlichen Tatausgleich bei Erwachsenen, Österreichische Richterzeitung, 77:161-166. Watzke, E., 1997, Äquilibristischer Tanz zwischen den Welten: Neue Methoden professioneller Konfliktmediation, Forum Verlag Godesberg, Bonn. Zwinger, G., 1999, Zur Methodik der Mediation bei strafrechtlich relevanten Konflikten, Sozialarbeit und Bewährungshilfe (sub), 21(1):4 35.

Chapter 9 VICTIM-OFFENDER MEDIATION FOR JUVENILES IN BELGIUM Anne Lemonne and Inge Vanfraechem -

1.

INTRODUCTION

This chapter presents the development of Victim-Offender Mediation (VOM) for juveniles in Belgium. The structure adopted in this presentation is related to the particular institutional context of this country. Indeed, Belgium is a federal country. The State reform process, which started in the 1980s, led to an increasing independency, including a financial autonomy, of the Belgian “Communities” and “Regions”, and to a sharing of competencies between the Federal State and the respective Communities in the field of youth justice1. This “communautarisation” was of great impact on the 1

Under the Constitution, there are three cultural Communities in Belgium, represented by three institutional bodies: the “Flemish Community”, “French Community” and “German Community”. There are also three economic Regions represented by three other distinct institutional bodies: the Flanders Region, the Walloon Region and the Brussels-Capital Region. It is worth to emphasise that Regions and Communities do not coincide neither in terms of competencies, nor in terms of people falling under their rules. Rules enacted by the Federal State (in matters such as Justice, Social security, Defence, Interior, Finances…) apply to the whole territory and to all people living in Belgium, whereas rules enacted by the Communities (in matters such as education, youth help and protection, culture…) apply to Belgian people according to language criteria. Finally, rules enacted by Regions (such as economy, tourism, environment…) apply to people living in Belgium according to territory criteria. Practically, this means for example that (French or Flemish speaking) people living in Brussels will fall under the rules enacted by the Federal State, those enacted by the Brussels-Capital Region and, depending of his/her language, those enacted by the French Community (if French speaking) or the Flemish Community (if Flemish speaking). Many NGOs working in the field of youth help and/or protection

181 A. Mestitz and S. Ghetti (eds.), Victim-Offender Mediation with Youth Offenders in Europe, 181-209. © 2005 Springer. Printed in the Netherlands.

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quality and differentiation of the implementation of policy in both the socalled Flemish and French “Communities”, including the implementation of victim-offender programs. In Belgium, the youth justice system is separate from the adult penal system. Since 1965, a youth protection law2 reflecting a rehabilitative philosophy is applicable to youth up to 18 years of age, which means that offences committed by juveniles are considered before all as symptoms of personal or social problems. Under this law, a minor who is in danger or who commits an act referred to as an offence is not held criminally responsible for his or her behaviour. The minor cannot be punished, but must be protected. For a long time, the law considered juvenile delinquents as needing educational measures to the same extent as endangered children. No real distinction was made between both categories of juveniles and, in principle, similar educational measures were imposed on both of them. In 1980, Art. 5, par. 1, II, 6 of the Belgian Lois spéciales de réformes institutionnelles has divided the Youth Protection competencies between the Communities and the Federal State: the Protection Law depends on the Communities, except for what concerns civil law (in particular the status of the minor and his/her family), penal law (in particular for the definition of provisions providing for offences) and judicial law (in particular for the organisation of the courts, for the definition of procedural rules and types of measures available to the judge in order to answer to the offences committed by young people). In addition, juvenile courts have their competencies limited to minors having committed an offence and to the imposition, if necessary, of assistance measures in certain cases even if no offence has been committed (for instance, when no agreement emerges between the youth – his/her family and the Communities and when this lack of agreement endangers the minor). Communities are responsible for all measures being taken in agreement with the families (and preferably with the youth) and for the organisation of the structures helping to implement decisions taken by the juvenile judge (Baeselen and De Fraene, 2000). Therefore, in Belgium, the federal Minister of Justice is responsible for legislation in the field of juvenile justice and the juvenile court makes decisions about juvenile delinquent cases. Even though a youth is not considered responsible for the acts he commits, he can be prosecuted for “facts described as offences”3. His rehabilitation is carried out by the use of

depend on one of the “Communities” as a special political body, regulating NGOs according to the language of their specific public. 2 The Belgian Youth Protection Act of 1965. 3 Some modifications have been introduced in the Youth Protection Act of 1965 by a law of February 1994 in order to take into account the changes introduced by communautarisation. According to these changes, article 36.4, provides the possibility for the public

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educational measures, not by punishment. The measures (as reprimand, supervision, placement in a “closed or open institution”) decided by the judge are organised and financed by the so-called Flemish and French Communities, which are responsible, between others, for the implementation of this legislation (Walgrave et al., 1998). In this context, Communities respectively recognize and finance private non-profit organisations (NGOs), including those implementing VOM for juveniles. In Belgium, there is currently no specific legal provision with regard to VOM for juveniles in the federal Youth Protection Law4. Nevertheless, mediation practice informally developed under article 37.2 of the 1965 Juvenile Justice Act. This article states that the juvenile court can impose a philanthropic and educational service, with the condition to put the young person under the supervision of a social service. Discussion has been ongoing for years with regard to reforming the law. A recent draft-law proposed by the Ministry of Justice to adapt the current Juvenile Protection Law (1965) would legalise restorative practices such as VOM and conferencing for juvenile delinquency. However, until the passing of such law, the interpretation of the current legal provision and the respective NGOs dependency on the policy and organisational criteria of different “Communities” leads to a different implementation of VOM projects. The present chapter covers the development of VOM programs for juveniles both in the Flemish and the French Communities in Belgium and aims to show how, in the same country, the development of VOM can vary according to different social and political contexts.

2.

VICTIM-OFFENDER MEDIATION FOR JUVENILES IN FLANDERS5

In Flanders, mediation services cover all 14 judicial districts, some operating in more than one district6. The Flemish Community finances most prosecutor to prosecute the minor only because he committed acts defined as offences ( juvenile delinquency in the narrow sense of the term) (Walgrave et al., 1998). 4 This impedes the judicial protection of the youth, since no clear legal safeguards are available because of the lack of legal rules (Eliaerts, 2003: 172). 5 For Flanders, a lot of information was found in articles and yearly reports of the mediation services, as well as the yearly reports of the Ondersteuningsstructuur Bijzondere Jeugdzorgg (OSBJ, Support Service Special Youth Care, an organisation coordinating all restorative initiatives for juveniles in Flanders). Furthermore, mediation services were asked to provide information and Hilde Geudens (working at the OSBJ) provided comments and in-depth information on the state of affairs (July 2003 and July 2004). We thank all of them for their co-operation and useful remarks. We also thank Sabien Deklerk who has collected the information. 6 Geudens, personal communication (2004).

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of the services. The VOM process for juveniles is conceived as followed: a mediator neutrally guides the parties (the victim and the young offender, usually also the offender’s parents) through the communication process, which can be either direct (face-to-face) or indirect. The public prosecutor or the youth judge makes referrals, possibly on the advice of, for example, a lawyer or social services of the youth court. In the field of juvenile justice, besides VOM, a conferencing project was set up in 2000 (Vanfraechem, 2003; 2004). Furthermore, the Flemish Community considers community service and educational projects as restorative justice. Nevertheless, there is still discussion on the “restorative content” of these different practices (Nuytiens et al., 2002).

2.1

A brief history of VOM in Flanders7

In Flanders, a small non-governmental organisation for juvenile assistance named Oikoten took the first initiative to implement VOM in the late 1980s. In general terms, a rehabilitative perspective was at the forefront of their search for innovative practices to deal with juvenile delinquency8. The underlying philosophy of the organisation was based upon an “emancipatory pedagogy”: young people are not helped by protecting them, but rather by treating them as adults and giving them real responsibilities. Within this perspective, the agency began to experiment with community service in 1987, in co-operation with the public prosecutors and the juvenile judges. Several questions arose from this first experiment with respect to the limits of the initiative. One criticism concerned its function as a mere penalty that did not stimulate the youth’s responsibility. Another criticism concerned the total absence of the victim in the process. To address this latter limitation, victims were systematically contacted in all cases of community service. The Oikoten-programme thus evolved from a pure community service project to a mediation program in which the interests of the victim were more fully incorporated (see also Van Garsse, 2001). A next step in the Oikoten mediation program was the creation of a Compensation Fund in 1991. When the offender is not able to restore the victim financially, he can perform a number of hours of voluntary work in a humanitarian, cultural or social organisation. In exchange for his work, the offender is paid by the Fund and the compensation goes directly to the victim. The Fund was initially financed by private sponsoring and managed by Oikoten, but in October 1997 the Fund was taken over by the province of

7 8

See also Aertsen (2000) and Claes et al. (2003). The initial Dutch name of the program was Vereffeningsproject.

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Vlaams-Brabant. Currently, a Fund exists in the provinces of VlaamsBrabant, Antwerp and Limburg (Aertsen et al., 2002). In 1996, the Oikoten juvenile mediation project became part of the Leuven Mediation Service. The same year a second project started, based partly on the Oikoten model. This initiative was taken by the Brussels nonprofit organisation named “BAS!”, a Flemish counselling service in the field of alternative sanctions for juveniles. Oikoten provided for the co-ordination of the project and in November 1998 an agreement was reached between the Flemish government and Oikoten in order to implement the juvenile mediation model in other judicial districts. In 2001, the task of implementing the projects was transferred to the “Support Service Special Youth Care” (OSBJ)9. This service co-ordinates all projects throughout Flanders and offers training and support to the mediation services. In 2004, VOM for juveniles is available throughout Flanders. In 2002, 1,156 mediation cases were dealt with in the Flemish Community for 2,032 youth reported to the authorities10. The number of cases varies for each centre. Financial resources influence the number of cases that can be dealt with. Furthermore, besides the actual mediation work, mediators also sensitise actors of the justice system and the public at large.

2.2

The institutional and organisational framework

Referrals to mediation are made both by the public prosecutor and the youth judge. Mediation services11 are separate from the justice system: mediators obtain the mandate from the justice system but work independently. Once mediation is offered to the parties, the parties choose whether or not to participate in mediation on a voluntary basis (Nuytiens et al., 2002). The organisational structure of the mediation services clarifies their role and position towards the justice system and gives an idea on the state of affairs for the personnel involved. Each mediation centre is organised differently and therefore the OSBJ is striving for more uniformity in the organisational structure and set-up of the services. The Flemish Community finances most mediation centres12. The Flemish Community pays most personnel within the organisations but some

9

Ondersteuningsstructuur Bijzondere Jeugdzorg g (www.oikoten.be). Geudens, personal communication (2003). 11 Which are private NGOs, in Flanders mostly financed by the Flemish Ministry of Welfare. 12 Through the Fund of Youth Care, in Dutch: Fonds Bijzondere Jeugdbijstandd (OSBJ, 2003a). 10

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of the costs are also covered by local funds of the cities, the Ministry of Justice13 or the province (OSBJ, 2002; 2003a). Every service is located in a different organisation: some services are located in the same building as, for example, the local prevention organisation, educational projects for youth or mediation services for adults. A few services are located in a separate building. The location of the service does influence the communication with other services, as well as the status of the coordinator. The location furthermore points out its relation to other services. By physically locating the mediation service outside the justice system, it is made clear that mediation services are independent from the juvenile justice system. Since some centres also offer community service and educational projects, it is difficult to get an idea of how many mediators work in each centre. The number of mediators depends on the territorial competence, the history of the service and possible other tasks the mediators perform. One to five mediators may work at a service, not all of them working on a full-time basis. Discussion is ongoing with regard to the possible usefulness of working with volunteers. Leadership varies in every centre, depending on their structure and resources. The “steering groups” have an important role to play (Claes et al., 2003). These groups are organised at the level of the judicial district and include partners from the judicial system: lawyers, judges, prosecutors, social services at the youth court, mediators and others. They discuss the practice of mediation within the district, its possibilities and drawbacks. For some mediation centres, these steering groups have the final decision power and responsibility for the practice (not for e.g. personnel management). Some services have a coordinator, who may be specifically hired as a coordinator or it may be a mediator taking up this role in addition to the mediation work (OSBJ, 2003b).

2.3

Criteria for referral

The referral procedure may vary in every district: there is no consistent and generally available procedure. Mediation is mostly available at the level of the public prosecutor, but can also take place at the level of the youth judge. Thus, all youth can take part in it throughout the judicial procedure (Van Dijk et al., 2002). In Belgium, the police legally have no discretionary power and can thus only refer cases to the prosecutor. The latter can decide

13

Municipalities can get funding from the Ministry of Justice for hiring personnel who implement alternative judicial measures, including mediation. In Dutch it is called Globaal Plan (OSBJ, 2003a).

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to send a case to the mediation service if the following conditions are met (Eliaerts, 2003: 172): – there is a crime with a concrete victim, – there is material or moral damage, – the judicial research into the crime is concluded, – the alleged offender acknowledges the crime (and his part in it). The mediator assesses whether the case is fit for mediation, through home-visits with the offender and the victim. Criteria may vary between services, but participation is always on a voluntary basis. When parties do not wish to participate, the case is sent back to the prosecutor, who can take another measure, send it to the youth court or dismiss the case. When both offender and victim agree to mediation, the mediator can proceed with the mediation. When parties get to a written agreement, this is sent to the prosecutor. When they do not reach an agreement, this is communicated to the prosecutor. Discussion still exists on how much information should be communicated to the justice personnel and whether the mediator can invoke the professional oath of secrecy. Mediators do not wish to provide too much information on the communication process, since that may influence the central principles of mediation: the neutrality of the mediator, voluntariness of participation and confidentiality of the communication process (OSBJ, 2003a). These principles underscore the fact that the mediator is independent from the justice system and that he is merely present to enhance the communication process between victim and offender.

2.4

Profile of juvenile offences and (dis)advantages of the practice14

In 2001, 90.3% of the youth were male and 9.7% female. When registering the background of the youth, most services include the “ethnical origin”, while one service uses the nationality of the youth. About half of the services do not register anything with regard to this topic, thus in 2001 this information was available for only 79.1% of the cases. Taking these restrictions into account, the researchers state that 21.6% have a non-Belgian ethnical origin. In 5.7% of the cases, adult co-offenders are involved. Most cases are either crimes against property or against a person. With regard to the offence, different definitions are used, which again impedes

14

No systemic follow-up procedures are provided. The research of Van Dijk et al. (2002) and Nuytiens et al. (2002) is mainly descriptive, with some recommendations and points of attention with regard to mediation for juveniles.

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comparability. Furthermore, some services put multiple categories together and some data are not available (Nuytiens et al., 2002)15.

2.5

Models, approaches and theoretical framework of mediation

There is no explicit theoretical framework, but various ideas have influenced the origination and development of mediation. For instance, victimology has put the victim in the foreground. The OSBJ works with various working groups in which different topics are being discussed, including the theoretical framework of restorative justice16. The working groups on deontology, international topics, legislative framework, training and communication/documentation were developed by Suggnomè17. The OSBJ has furthermore developed its own working groups: registration of cases (coming to a uniform registration within the various mediation services), protocol (uniform agreements with the different professionals within each judicial district), procedure, insurances and sensitisation of lawyers. These working groups develop the topics and give feedback to the mediation services. They study the topics in depth, so conclusions can be reached and uniform practices can be developed. The OSBJ also provides training, information days and discussion groups. This ensures the development of a uniform practice throughout Flanders. Mediators can contact the organisation when they have practical questions (OSBJ, 2003b). Local steering groups bring together the various partners within a judicial district and ensure ongoing support by the justice system personnel. Every mediation service creates a “guiding team”, including mediators and external experts (e.g. people from the university, lawyers, victim assistance). They come together every couple of weeks to discuss the actual cases as well as problems and questions that may arise. Suggnomè developed a deontological code and a deontological commission deals with problems and questions18. As well a manual for mediators is being developed (OSBJ, 2003b). “Good practice” for mediators is available through guidelines that are communicated in the training for mediators. In general, youth lawyers are responsible for protecting procedural safeguards and support the youth during the process. The lawyer clearly describes his role towards the youngster at their first meeting. So far 155

Since 2002, the OSBJ has started collecting comparable information, but this is not available yet (Geudens, personal communication, 2004). 16 Geudens, personal communication (2003). 17 A national Forum for Restorative Justice and Mediation for adult offenders (www.suggnome.be). 18 Geudens, personal communication (2003).

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no literature, law or code of standards exists with regard to the role of the lawyer in mediation, but certain principles are adhered to (Gysemans, 2002).

2.6

Professional characteristics of mediators19

Mediators are required to have at least a college degree in human sciences (e.g., social work). Most of them also have a university degree in law, criminology, psychology or education. Mediators are often hired on the basis of their college degree, since this limits the personnel costs20. Certain elements are considered to be important, mainly the personality of the mediators (working independently, ability for self-reflection and being motivated) and their knowledge of the Youth Protection Law. The procedure for recruitment varies per service although it often contains a written test and an oral interview. The OSBJ organises an introductory course for new mediators. Another course, “Methodology of the mediation”, is organised for mediators in different fields21. Moreover, the OSBJ organises day-courses on various topics, where mediators can meet, interact and exchange information. Other institutions organise short training sessions, e.g. on communication. Resources for training are limited and mediation services are thus content that the courses of the OSBJ are free of charge. The workload per mediator varies between 15 and 85 cases a year. The caseload is a sensitive issue22 for mediation services, since mediators also have to take up other tasks, which can be very time-consuming. These tasks include sensitisation, attending meetings and developing the methodology. Services define “a case” differently: it can be regarded as one offender, one crime or one dossier (which can include multiple offences or offenders). The workload varies with the largeness of the service, the funding and the amount of referrals. Mediators are responsible for decisions with regard to their cases. They prepare the participants through home-visits, during which the mediator 19

There is no written information available on these topics. The information provided was obtained from contacts with the mediation services. 20 People with a university degree earn more (since they study longer and their degree is considered to be more academic). Since funding is often limited, people may be hired on their college degree, even if they also have a university degree. The combination of a college (more practice-oriented) and university degree (more academic) is quite widespread. 21 Given by Bram Van Droogenbroeck (mediator in Leuven) at the College of Social Work in Heverlee, Leuven. 22 Mediation services do not like to provide the number of cases they process, since funding may be made dependent on it. Since they have to perform other tasks as well, they point out that the number of cases as such does not reflect the actual work carried out.

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explains the procedure. The time and location of the meeting are agreed upon and the mediator conducts the mediation process as an impartial party. An agreement is written down and sent back to the referrer. Since there is communication within the team of mediators, responsibilities are shared and supported by the organisation. One service mentions that the mediator is not responsible for the result of the mediation. This is a difficult issue: to what degree can a mediator be held responsible for what happens in the mediation? Does the mediator sign the agreement? If so, can she/he be held responsible when the agreement is not carried out (properly)? These are elements of discussion that still have to be resolved.

2.7

The practice of mediation

The meetings between the parties are held in various locations, depending on where the parties live and where they want the mediation to take place. Mediation can take place in the mediation service, in one of the parties’ homes or some neutral location, such as a local cultural centre. One mediator conducts the meeting with the victim and the offender. A mediator in training or a trainee from a university (e.g. a criminology student) may attend the home-visits and the mediation. On average, mediators need 11 to 22 weeks to conclude a mediation case. The neutrality of the mediator, voluntariness of participation and confidentiality of the communication process are key principles in mediation (OSBJ, 2003a). The mediator is a neutral go-between and thus does not take sides. The offer of mediation is made and both parties can choose whether or not they wish to attend. The confidentiality of the communication process is important for parties: they can decide what information can(not) be forwarded to other people, including justice system personnel.

2.8

Concluding remarks for Flanders

2.8.1

Disadvantages of the Flemish practice

The variation in practices in Flanders leads to complexity and confusion. No legislation is available and thus services are structured differently. Each service adapts its own procedure to the procedures and requirements of the judicial district in which it operates. Variety in resources leads to uncertainty of service-provision. Different procedures and criteria are used by the prosecutor and youth judge, which leads to inequality for the youngsters. Furthermore, the procedure runs a risk of being offender-focused: the youth protection law is mainly focused on the youth and on the effect the measure

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will have on him. Within the mediation process, mediators do balance the interests of both the juvenile and the victim. Mediation is still only a small part of the judicial system, even though research shows it can be effective and that parties are satisfied. This might be linked to the lack of a legal basis and thus a lack of procedural safeguards for the participants (Eliaerts and Dumortier, 2002), which is an important issue of debate in Flanders. Legal safeguards have been an important point of attention with regard to the youth protection system and are now considered to be important for restorative justice as well. The definition of a “successful” outcome is still unclear: is it successful when parties come to an agreement or are other elements important as well? Even when people decide not to meet, they may feel satisfied with the offer of mediation. The lack of follow-up procedures is a lacuna: it would be good to have systematic information on existing programs, how they are run, as well as what the participants think of them. So far, follow-up is only being provided on an anecdotic basis. 2.8.2

Advantages of the Flemish practice

A great advantage is the flexibility: because there is no binding law, local practices can evolve and develop according to local customs and needs. Another positive element is the creation of the OSBJ: it co-ordinates the practice and information, and leads to more clarity in what is available in the field of mediation. Finally, the fact that mediation is used and that the practice keeps evolving over time, even without legislation is encouraging: professional actors do refer cases and consider it to be useful. 2.8.3

Some peculiarities of the Flemish practice

Debates with regard to legal guarantees are important in Flanders. Furthermore, discussions with regard to reforming the youth protection law have been oriented towards those legal safeguards. Restorative practices are being accepted and are quite widespread. This structural aspect and ideas with regard to the ideal content influence the evolving practices within Flanders as well as the differences with the French Community, where the practices are more developed within the idea and spirit of youth protection (see section 3 below). Another peculiarity is the influence of universities on the practice: pilotprojects have been set up in which researchers have stimulated new ideas and co-operated with practitioners to implement restorative practices.

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The use of steering committees in every judicial district furthermore enhances the understanding of and support for mediation practices by the justice personnel. Judicial actors are involved in those meetings and can share their comments and concerns. That way, mediation is developed in close communication and can be developed with the support of the justice system. The risk of the justice system taking over the process and dominating the philosophy of mediation has not been proven, but should be closely guarded.

3.

VICTIM-OFFENDER MEDIATION IN THE 23 FRENCH COMMUNITY

The development of VOM for juveniles in the French speaking part of Belgium (French Community)24 has been somewhat different from the development in the Flemish Community. The French Community finances all organisations carrying out the measures taken by the juvenile courts. In the French speaking part of Belgium, mediation is developed by small private NGOs recognised for their work in the field of community service orders for juveniles. Juvenile judges refer community services under Art. 37.2 of the 1965 Youth Protection Law. Mediation agencies are separate from the juvenile justice system, both physically and financially. The French Community currently finances six NGOs that implement mediation between the juvenile offender(s) and their victim(s) in 8 out of 13 French judicial districts. In all projects under study a mediator guides the parties through the process of mediation, which can be either direct or indirect. The prosecutor 23

We are grateful to D. De Fraene and A. Buonatesta for their valuable comments on a first version of this chapter. We also wish to thank the NGOs working in the field of juvenile mediation in the French Community for having provided important information concerning the recent development of their projects. Information was found in grey literature or reports sent by Le Radian, Arpège, GACEP, Le Choix, Pep’s, SREP. 24 The expression “French Community” will be used in the following section to talk about the specific political body being part of the institutional framework. To remind the reader, the French Community has its specific government and competencies. It develops policies for all French speaking people, living in both Walloon and Brussels-Capital Regions (thus, this policy does not apply to the Flemish speaking people in the Brussels Region or to German speaking people living in the Walloon Region). The Belgian Constitution determines the sphere of competencies of the French Community. Globally, its competencies are related to all what directly concerns people’s culture. Education, culture, social action and youth protection are, for example, among the competencies of this particular arena of political decision. In the following text, we will sometimes use the term “French speaking part of Belgium” to refer to the entity governed by the same political body.

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or the youth judge makes referrals. NGOs do not consider mediation as a restrictive measure: it is a proposition made to the young offender, his civil responsible (mostly the parents) and his victim(s). Mediation is considered as a voluntary process that takes place at the level of the public prosecutor (before the submission of the case to court) or at the level of the youth judge (before she/he pronounces the judgment). Unfortunately, no recent official evaluation is available concerning the work performed by organisations dealing with mediation. An extensive study analysing the implementation of mediation by the three pioneering services has been performed in 1999 (Poulet and Billen, 1999). In order to advance our understanding of the current development of mediation programs, questionnaires have been sent to representatives of six organisations offering mediation for juveniles. For the purpose of this study, all of them provided more recent quantitative and qualitative dataa25.

3.1

26

Historical account on VOM

In the French Community of Belgium, the development of VOM programs was initiated in the 1980s by three small NGOs. These organisations for juvenile assistance mainly developed community service. Mediation was only suggested occasionally when it seemed appropriate in the framework of community service. The NGOs operated under a legal provision called “philanthropic or educational services” within the framework of the 1965 Juvenile Justice Act. Despite the rehabilitative perspective promoted by the 1965 Juvenile Justice Act, the philosophy of these first active organisations implementing community service has also always been restorative (i.e., with openness to the position of the victim and to mediation). Rapidly, other organisations flourished that implemented “philanthropic and educational services”. In 1988, each of the 13 French speaking judicial districts had such an organisation. The French Community officially recognised and subsidised this network of organisations under the name of Services de prestations éducatives et philanthropiques (S.P.E.P.)27. In contrast with the first projects, these services exclusively implemented “community service” for young delinquents28. Community service had to be performed by the young 25

It is worth mentioning that in some cases the analysis of these data raises the problem of comparability: there is no policy to organise and systematise data collection. 26 Aertsen (2000), Buonatesta (1997), De Fraene (2002). 27 French and Flemish Communities carry out all measures taken by the juvenile courts. As mentioned by Aertsen (2000), strong differences exist in the way the Communities pursue their policies in this regard. 28 A young person having committed an offence can be ordered by the juvenile judge to perform work in a public or private organisation. This order is called a “community

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offender, after a decision by the juvenile judge. In addition, these services developed their activities with particular attention to legal rights and restitution, rather than to victims. The rapid spread of the organisations working in this field did not result in the development of mediation programs or in a real culture of restorative justice. Since 1993, mediation became a distinct project for the three pioneering organisations in the field of community service29. These organisations obtained dispensation from the French Community in order to implement mediation as an autonomous response to crime committed by young offenders. In the framework of this project, the public prosecutor referred mediation cases. The French Community supervised the experiment, but no additional financial support was given to the organisations30. At that time, mediation developed more systematically. In January 1996, the French Community decided to stop these pilot-projects at the level of the public prosecutor31. Two organisations ceased their mediation activities at the level of the public prosecutor until 1997, when a new political decision made it possible again. The third organisation chose to pursue mediation in a new institutional framework: the circular of the Ministry of Justice in the framework of the “Global plan” ((Plan Global pour l’emploi, la compétitivité et la sécurité sociale)32. In the framework of this plan, important funding was allocated to municipalities having passed a “Security Contract” (Contrat de sécurité) with the Federal State. Funding could be used in order to hire additional workers for the implementation of diversion measures for youth 12 to 18 years old. The new institutional framework of the project provoked important discussions among representatives of the network of organisations implementing “philanthropic and educational services” (S.P.E.P). It is important to emphasise that these projects took place while preliminary work concerning a reform of the Juvenile Justice Act of 1965 was initiated. Some practitioners feared a growing emphasis on security and punitiveness

service order”. The organisation of the S.P.E.P.s (implementing community service orders for juveniles) strongly varies with respect to districts. 29 In 1989, a research project started in the framework of an informal partnership with a single juvenile judge and the University de Louvain-la-Neuve. The aim of the research project was to evaluate the opportunity to develop mediation in the framework of the activities of S.P.E.P. It did not influence further policy in this matter. 30 Two successive conventions were passed from March 1994 to December 1995, but without giving any financial support (Buonatesta, 1997). 31 It appears that the French Community stopped the project because the use of a community service order and/or mediation was not considered as fulfilling the procedural guaranties at this stage of the process. 32 Circulaire du 17 février 1995 relative au recrutement par les communes de personnel supplémentaire pour l’encadrement des mesures judiciaires alternatives.

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towards youth offenders (which constitutes an argument against the implementation of mediation). Some also claimed the preservation of the separation of power between judicial authorities (public prosecutors and judges) and Ministries33, as well as the improvement of procedural guaranties. These debates later led to a definitive philosophical scission between these organisations implementing mediation and/or community services in general. Despite the (still existing) debate between opponents and proponents of mediation for juveniles, the French Community since December 2001 allows for the implementation of mediation referred either by the public prosecutor or by the juvenile judge in the framework of the NGOs developing community service for juveniles34. In the last decade, various bills aiming to reform the 1965 Youth Protection Act explicitly provided for mediation. However, mediation is usually conceived as an instrument among other available measures that are offered to the judicial authorities to react against juvenile offenders. So far none of these projects has been adopted by the Parliament. Nowadays, six organisations provide for mediation for juveniles in 8 out of 13 judicial districts in the French speaking part of Belgium. As mentioned above, for a long period mediation with juveniles was essentially developed by three NGOs (in three judicial districts), under a rather unstable financial basis and without any clear legal framework. The consequence thereof has been that the implementation of mediation for juveniles remained rather limited. Since 2001, three additional organisations, all members of the network of organisations implementing community service for juveniles in the French Community, started to use mediation. The awareness campaigns designed for the various actors and the French Community’s decision35 to provide funding for mediation services seems thus to have slowly increased the number of mediation cases. As is the case for Flanders, the number of cases dealt with by mediators varies between judicial districts. In 2002, 239 cases were referred to mediation by the public prosecutor and 123 cases

33

According to some opponents, the circular letter from the Ministry of Justice did not provide for enough deontological guarantees. Some also feared for an increasing competition between agencies financed by the French Community and agencies financed by the Ministry of Justice (De Fraene, 2002). 34 Since then, a scission has occurred between the various actors operating in this field. Briefly, some of them, members of the Fédération des équipes mandatées en milieu ouvert or F.E.M.M.O. (federation of social services dealing with community service and/or mediation) are willing to further develop the experiment with mediation while others founded a new federation more oriented towards educational measures (Fédération ( des associations socio-éducatives or F.A.S.E.). 35 Circular letter of 5 December 2001, Nicole Maréchal, French Community.

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were referred to mediation by the juvenile judge, leading to a total of 362 cases (Suggnomè, 2003). With regard to other restorative justice practices, different projects are currently available. They mainly consist of mediation programs. In the field of juvenile justice, one organisation tried a few mediations with minors having committed serious offences (physical aggression, sexual offence ...) and being fostered in institutions. It is also the program counting the largest number of cases. In the second half of the 1990s, other VOM programs emerged in the French speaking part of Belgium. Programs such as mediation after prosecution and mediation at a local level were introduced. They show similar characteristics as VOM programs for juveniles: no legal framework, unstable funding and quite a small number of cases.

3.2

Legislation and legal provisions for the application of VOM

Since 1991, a decree on juvenile assistance in the French Community gives priority to prevention (general and special prevention). Dejudicialisation has been organised and the promotion of youngsters’ rights has been enhanced (Baeselen and De Fraene, 2000). According to the Lois spéciales de réformes institutionnelles, the French Community is in charge of financing all organisations carrying out the measures taken by the juvenile courts. It is in this context, from 1984 to 2001, that organisations mainly implementing community service received funding for their activities, without being able to get any official funding as such for mediation practices. Thus they were allowed to practice mediation but they did not receive funding for this activity. In addition, mediation rapidly developed in the framework of the activities of the public prosecution services, which blurred even more the legal context in which mediation took place. Indeed, in Belgium there is no legal basis allowing the youth public prosecutor to use diversion measures to the submission of the case before court. Mediation practices at the level of the prosecutor were thus only regulated by successive conventions between the Ministry of French Community and organisations. Recently, mediation was partly recognised in a circular letter of December 5th, 2001. This circular allows services implementing “philanthropic and educational services” (S.P.E.P.), to get funding for mediation implemented after a referral by the public prosecutor and/or the juvenile judge.

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Financial and organisational structure of the VOM centres

The financial and organisational structure of the mediation centres varies from one service to another and is sometimes difficult to evaluate. This is not surprising taking into account the fact that mediation centres are implemented by private NGOs independent from the juvenile judge. Moreover, for a long period they suffered from a lack of framework for funding. As mentioned above, six services currently develop VOM for juveniles in the French speaking part of Belgium. The French Community has supported mediation programs since their emergence, at least indirectly. Only during a small period did one organisation benefit from supplementary resources from the Ministry of Justice in the framework of the “Global Plan” allowing for the development of diversionary measures at the level of the public prosecutor. As mentioned above, nowadays the French Community officially finances the implementation of all mediation programs in the field of juveniles36. A few organisations receive small additional funding which provides for additional staff support. Taking into account the mode of funding (i.e., a global budget for all activities developed by these agencies), it proved difficult for the representatives of these organisations to distinguish the budgets devoted to community service from that devoted to VOM. One organisation evaluated the costs allocated to VOM to about one-third of the global budget. This proportion however needs to be considered with caution, given the lack of official data. The administration and management of the mediation service is located in every NGO providing community services. These services are located in buildings separate from the judicial authorities. Often, a majority of workers in the organisation are in charge of the implementation of both mediation and community service (or other activities), which render the evaluation of the workload per mediator to be difficult. However, in some services specific workers handle the implementation of mediation. Some members of the educative team (i.e., the team of social workers working in these NGOs and performing both community service and mediation) limit therefore their role in community service and devote more time to mediation. In some agencies, a specific mediation department has been created, with a specific name. The two main arguments for this physical distinction are: (1) to emphasise the specificity of mediation compared to other practices developed by the organisation; (2) to guarantee that the parties (especially victims) are not confused by the role taken by the social workers (mediator versus educative worker). These services are, however, situated in the same building and 36

Circular letter of 5 December 2001, Nicole Maréchal, French Community.

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managed by the same direction as those organising community services (and sometimes other educational projects). From annual reports provided by the NGOs, it is clear that leadership varies. However, the organisation of the services is regulated by the Belgian law on NGOs, which requires for the appointment of a general assembly and an administrative board. NGOs working in the field of community services also see their organisation and management regulated by the Arrêté du Gouvernement de la Communauté Française of March 15, 1999. This law requires for the appointment of a coordinator in each service. It also describes the level and the kind of training required for the workers, as well as the mission devoted to these organisations (i.e., to give an educative response to juvenile delinquency through the organisation, principally, of community service for young delinquents). No formal steering group is available as is the case in Flanders. Each association is free to meet with judicial services (or with other services such as mediation services, social services and foster institutions) in order to organise the service. Meetings take place in the framework of a Federation of social services dealing with community service and/or mediation (F.E.M.M.O). In this respect, discussion concerning the development of the mediation practices within the various districts is developing. This Federation has, however, no decisional power. It is difficult to obtain a view on how many mediators work on VOM for juveniles, since the centres also offer community service. According to an estimation provided by NGOs, it appears that in 2003 twenty-six people worked with mediation cases in the French Community. Mediators are all professionals: according to our data, no volunteers currently perform mediation for juveniles in the French speaking part of the country. Mediators are mostly social workers. Their profile corresponds to the circular letter of 1999 organising the S.P.E.P. (see below).

3.4

Referrals and mediation procedures

As in Flanders, the referral procedure varies in every district. Missing a legal framework leads to the lack of a consistent and generally available procedure. However, it is possible to provide some overview of the procedure usually followed by the organisation when mediation cases are referred37. This general procedure can be summarised in seven steps. 1. The judge (often under a provisional decision before judgment) or the public prosecutor (as a diversion measure to the submission of the case before the court) suggests mediation to the youth. Criteria were 37

This information is based on the analysis of reports communicated by the organisations.

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progressively settled in every district between NGOs and judicial actors implementing mediation. 2. The NGO evaluates the feasibility of the mediation. This can be done through a simple file consultation or in the context of a meeting with the judicial authorities (often when the juvenile judge refers the case). Refusals are communicated to magistrates and often concern a lack of relevance of selection criteria. 3. The parties are invited to participate in a meeting. The parties are usually first invited separately. The proposition to the parties to participate is either made directly by the judicial actors or by the NGO. 4. The NGO organises a preliminary meeting with the youth and his victim(s), as well as his “civilly responsible” (usually the parents). The philosophy of mediation and the judicial procedure are explained. The signature of an agreement mentioning their willingness to participate in the mediation is usually asked for or required. In some organisations, the presence of a lawyer is suggested to the minor for signing. This agreement is sometimes sent to the judicial authorities. 5. The mediation process occurs either direct or indirect. This often depends of the willingness of the parties to meet personally. Mediators offer a possibility to express feelings and responsibilities, as well as an understanding of the situation. Mediation also involves an active search for resolution between the parties. In a few organisations, reports are regularly sent to the judicial authorities giving information on the state of affairs of the mediation. 6. When the parties reach an agreement, it is often formally written down and sent to the judicial authorities. 7. A short report relating the different steps of the mediation process is sent to juvenile judge or the public prosecutor, together with the eventual agreement between the parties. The actual situation seems not to transfer any elements of psychosocial nature to the judicial authorities. However, some organisations consider that the content of the report deserves a debate when mediation is implemented at the juvenile judge level. Due to the lack of legal basis, criteria of selection of mediation cases vary among judicial districts. These criteria have often been practically settled by the judicial authorities and NGOs in the course of the development of the pilot-project. Some criteria seem to prevail in a majority of services: the alleged offender has to recognise the facts (at least, he has to recognise that he is somewhat implicated in what happened); there must be an identifiable victim; and mediation must be a voluntary process. Beside these core criteria, every organisation adds specific ones, such as the youth committed a first (significant) offence (this is often a criterion used at the level of public

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prosecutor), the facts are recent, and people involved will meet each other in the future. The structure of the agencies dealing with mediation is flexible: it allows for discussion, collaboration and reflexivity. Important freedom is given to the workers in their working-philosophy and contact with judicial authorities. This aspect can be evaluated as positive when one wishes to implement new projects needing clarification of method and issues. Despite this loose structure, a review of the selection criteria and of the mediation procedure as implemented by the various agencies shows some consistency in the practices developed by the various districts. This is probably the result of discussion taking place in the framework of the F.E.M.M.O. Although this loose organisational structure has undoubtedly positive effects, it raises the question on availability of the services to all citizens living in the French Community.

3.5

Profile of juvenile offences and (dis)advantages of the practice

In 2001, a study performed by the Belgian Institut National de Criminalistique et de Criminologie provided a quantitative analysis of the decisions made by the youth prosecution services and judges towards young offenders (Vanneste, 2001a). Results of the study38 show that out of a sample of 11,211 files dealt with by the public prosecutor in Belgium, mediation represents only 0.6 % of the measures taken. Alternative measures are thus still peripheral activities in the decisional activity of the public prosecution (Vanneste, 2001b). Out of a sample of 888 files dealt with by the juvenile judge in all Belgian judicial districts, the “philanthropic and educational measures” imposed by the judge accounted only for 16% (Vanneste, 2001a). These philanthropic and educational measures include, among others, mediation processes. Overall, the measure is more often used in the French than in the Flemish districts. In the French speaking part, the majority of ‘educational and philanthropic measures’ are imposed by judgment, while in Flanders the majority of these measures are imposed before judgment under a provisional decision of the judge (Vanneste, 2001b). In 2002, 362 cases were referred to mediation in the French Community. These numbers have been collected by various NGOs (Suggnomè, 2003). Not all services apply mediation by referrals of the public prosecutor and juvenile judges: the public prosecutor mostly refers mediation cases. In 2002, public prosecutors referred 239 cases and juvenile judges referred 123 38

Analyses are based on a systematic collection of decisions made by public prosecutor and juvenile judges, from September to December 1999, in eight French and Flemish judicial districts.

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cases. Two services have a large number of mediations dealt with by the juvenile judge often before judgment, namely by means of a “provisional decision”. The data show that the use of mediation is still peripheral in the youth juvenile justice system. They also demonstrate the lack of uniformity in the practices. As already mentioned, some organisations develop mediation at the level of the public prosecutor, while others give priority to the development of mediation at the level of the juvenile judge. The number of cases referred at the level of the public prosecutor is however globally more important: in general, judicial actors seem more willing to suggest mediation at the level of public prosecution. Public prosecution services are often looking for fast answers to petty offences, which are normally dismissed. Mediation agencies prefer to get referrals by the public prosecutor or by the judge at the level of provisional decision (before the final judgment is pronounced by the court). The experience of mediation practitioners reveals the greater potential of mediation early on in the judicial procedure. The number of mediation cases handled in the framework of a provisional decision taken by the judge seems to have increased since 1993. In this period, a decision of the Appeal Court in Brussels (further followed by a decision of 1997 by the Court of Cassation39) stated the illegal nature of community service implemented as a provisional decision by the judge. According to the Supreme Court, community service is a restrictive measure and needs to be covered by all judicial guarantees. This decision led to an increasing use of mediation by the judges at the provisional stage.

3.6

Approaches and theoretical framework

The main common philosophical and theoretical references underlying the work of mediation for juveniles can be articulated around seven concepts. These philosophical and theoretical grounds were outlined by services themselves (Poulet and Billen, 1999): 1. Increasing youngsters’ responsibility. Mediation appears as a mode of intervention in the youngster’s evolution towards a responsible and autonomous attitude with respect to social norms. The agencies often refuse to look at the delinquent act as a symptom of individual problems. The action of mediation does not consist of healing personality disorders. Social help being individual or general is the competence of other services where youth can be sent. Through an act of reparation, youth recognise their status of author of the events and accept their responsibility as well as their capacity to repair. Through this gesture, the 39

Cassation, 4 mars 1997, Jurisprudence Liège, Mons, Brussel, p. 1379.

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2.

3.

4.

5.

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youth becomes open to others and to society. This mediation process and its interpersonal and concrete dimensions are considered by many organisations as a more accessible form of decent reparation than community service. Re-affirmation of parents’ authority and educative role. The involvement of parents in mediation provides them with an opportunity to play a role in the answer given to their children’s misbehaviour. In mediation, young people and parents can express their feelings and emotions in a secure framework. Indeed, the framework provided by mediators excludes any verbal or physical aggression. According to each situation, mediation can also provide an occasion for reparation of a broken relationship between children and parents. Recognition of victims’ right to ask for reparation. The right of the victims to ask for reparation must be understood in an extensive sense. Material reparation is considered as a legitimate and important aspect of mediation work. However, it is considered as secondary compared to receiving reparation for psychological, relational or social consequences of victimisation. During the mediation process, victims must have the opportunity to obtain answers to fundamental questions raised by the crime’s victimisation. This means that an important aspect of the mediation process is to restore confidence. Victims also have the duty to contribute to the youth’s education. However, it is an important process to avoid “exploitation” of the victims involved in education. The agencies are particularly sensitive to this aspect, which they consider as a potential source of ambiguity between the parties. Increasing participation in the justice process. For victims, mediation also presents a possibility of active participation in the justice process. In a traditional process, a judge imposes a sentence and the victim only has a small role as a civil party. In the mediation process, questions related to “what is due to the victim” are the result of a negotiation between the youths and victims. Measuring, continuously and significantly, responses to the conflict. Equality of treatment is raised in the framework of negotiations. It is not related to the content of mediation or to the nature of the agreement settled by the parties. In such a context, equality depends on the mediator’s competency to take on the role of exchange facilitator between the parties, without taking up the role of the judge or prosecutor. The implementation of mediation in a judicial context necessitates adjustments between judicial instances and mediation services. Indeed, the latter contributes to justice from a relational and social point of view. Emphasising the interpersonal aspect of the situation. The relational preoccupation is viewed as an important aspect to solve a conflict.

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However, according to some agencies, this micro-sociological level of intervention can open up to a macro-sociological level. Mediation includes a reminder of the law, which is considered as necessary to live in harmony in society. In this respect, mediation can replace traditional conceptions of general and special prevention. It can provide a social and interpersonal intervention in order to reaffirm foundations and conditions through the implication of the parties. 7. Taking into account legal authorities. Mediation under judicial control is often presented as a solution to the problems known by the judicial system (lack of legitimacy, bureaucratisation and stigmatisation). Magistrates are mostly envisioning this potentiality. Nevertheless, these arguments are also part of mediation philosophies of the agencies developing mediation. Mediation proposed at the prosecution service level then aims at a certain level of decriminalisation, without leading to a “dismissal of the case”, which is considered as a bad situation both for the public opinion and the victims. In conclusion, VOM is a hybrid measure located at the intersection of axes continuously linking various poles in tension. The role of mediators is to ensure a balance between the poles of a structure where the interest of the young, victims, communities and officials in charge of the problem have to be defended.

3.7

Professional characteristics and job evaluation of mediators

The recruitment of mediators is performed according to a Governmental decree of March 15, 1999 of the French Community40. This decree mentions the condition of funding of the S.P.E.P. The number of employees depends on the number of mandates given to the service. The Ministry finances supplementary jobs each time the number of mandates increases from one scale level to another. Teams must be composed of at least one director, one redactor, one lawyer or criminologist, or social worker. At least a part-time job has to be given to a lawyer or a criminologist. Recruitment criteria is precise in that people have to possess some working qualities, namely quality of contact, emotional balance, pedagogical aptitude and motivation to participate in the education of young people. Interdisciplinary work is at the heart of the intervention. According to data provided by mediation agencies, the mediator’s educational background is often social work, criminology, psychology or education. 40

Arrêté du 15 mars 1999 fixant les conditions d’agrément et d’octroi de subventions des Services de prestation éducatives et philanthropiques.

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The policy of the services is to favour training for employees of the organisation. This often takes the form of participation in conferences, specific training on mediation or connected topics. The training is usually paid for by the organisation. Supervision of the work often takes place throughout meetings between team-members. Co-ordination between services mainly takes place in the framework of the F.E.M.M.O. However, this federation has no decisional power. The meetings have the purpose of exchanging experiences. Discussions on practical and deontological questions take place. Currently, the members of this association are finalising a document relating to VOM practices in the French Community.

3.8

Mediation in practice

Meetings between the parties are usually philosophically preferred by the organisations compared to indirect mediation. However, such direct mediation is not always possible, especially when one of the parties is not ready to meet the other. In such circumstances, mediation takes place as an indirect process, that is, the mediator meets each of the parties separately and communicates each position to the other; parties communicate with each other by letter and/or perform indirect/symbolic reparation. Mediation meetings (either direct or indirect) are mostly held in mediation services during the office hours of operation. However, documents originating from NGOs sometimes mention that if needed, the organisation of a meeting at one of the parties’ residence or outside office hours of the organisation is possible.

4.

CONCLUSIONS

In Belgium, the development of VOM firstly took place in the field of juveniles. Since, different models of VOM developed in the field of adult cases41: “penal mediation”, “mediation for redress” and “mediation at the police level” (Aertsen, 2000: 157). A law on penal mediation was passed in 1994 in the field of adults42 and the Minister of Justice created a function of 41

42

Family mediation, especially divorce mediation, developed substantially during the 1990s. In Flanders, school mediation is less developed than in Walloon, but a pilot-project on conferencing was concluded in April 2004. Debt mediation is a relatively new field. The type of mediation with the longest tradition probably best established in Belgium, is mediation in collective labour disputes (Aertsen, 2000). For adults, mediation in criminal law started in 1991 and experienced a much faster and more pronounced growth than mediation with juvenile offenders. Legislation was provided for in 1994, which led to a spurt of experimental programs (Aertsen, 2000).

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“restorative justice counsellor” in prison in 200143. Paradoxically, despite these further developments, there is still no legal framework allowing or promoting mediation in the field of juveniles. The initial loose organisational structure both in Flanders and the French Community (this characteristic being nowadays less the case in the Flemish Community where the OSBJ co-ordinates practices on a more systematic basis) offered room for experimentation and innovation. The structure of the agencies providing mediation is flexible: it allows for discussion, collaboration and reflexivity. Important freedom is given to the workers in the settlement of their work philosophy and contact with judicial authorities. This aspect can be evaluated as positive when one wishes to implement new projects. Nevertheless, neither at a national nor at the community level is consistent support given to enhance the practices. Difficulties in implementation and generalisation of mediation are partly due to problems specific to Belgium, namely the permanent conflicts of competencies (and funding) between the Federal State and the Communities. Indeed, firstly, judicial authorities (Federal State competency) are dependent on the means of the Communities and, secondly, Communities have to apply provisions which they cannot change. Since the Communities are responsible for the implementation of the federal law, differences occur in practice. Flanders has extensive experience in implementing VOM for juveniles and has developed the practice of conferencing. In Flanders, the practices of alternative sanctions, including mediation practices, have been developed in the idea to “responsibilise” the minor, in a perspective of emancipation. These experiences imply a responsibility of the minor who must recognise his/her fault and repair the damage done to the victim(s). Criticism in Flanders was addressed towards the implementation of VOM in the framework of educational measures. According to Aertsen (2000), in the Belgian system, mediation could be considered a “philanthropic or educational service” to be delivered by the youth, when broadly interpreted. A consequence of this legal provision is that mediation is essentially performed by social workers working in organisations providing community service and educational programs, who have defended educational values during many years. Mediation programs are thus often a mixture between rehabilitative and restorative values. Some crucial issues in the field of mediation for juveniles include the following: what is the position of the victim? How can he/she have a central role to play and be involved in a procedure that is implemented in a youth protection system? Another point of criticism in Flanders concerns the lack of procedural guarantees surrounding mediation practices, especially when included in a 43

These people are hired to change the prison culture towards reparation.

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youth protection law (Dumortier, 2001). Indeed, the practice of mediation is often considered as not providing enough clear rules for the parties. In this respect, some consider that the implementation of mediation programs could prevent their efforts to develop the use of legal guarantees in the juvenile justice system. Yet, experts, especially in Flanders, have claimed such a reform for many years. Despite these questions and uncertainties due to lack of legislation, the practice of VOM is available throughout Flanders. The OSBJ sees a need for unity and clarity with regard to the vision, methodology and procedure of mediation44. Since 2001, with the creation of the OSBJ, the practice has developed in a more standardised manner. In the French Community the lack of a clear legal basis and funding has had a deeper impact on the development of the services dealing with mediation. Still, not all judicial districts currently benefit from such programs. This situation raises the question of the (lack of) availability of the services to all citizens living Belgium. In the French Community, much criticism also surrounded the implementation of mediation programs in the field of youth justice. Firstly, according to many academics and practitioners belonging to this Community, the partition of competencies between the Communities and the Federal State led to a break-up of the “unity of treatment” principle defended by the 1965 Youth Protection Law. For them, with this partition, the distinction between “minor in danger” and “minor offenders” has been reintroduced. It implies that the minor offender is seen again as a “special category” being dealt with by the (penal) justice system. This change came to increase the fear of a system more oriented towards punishment than emancipation which, for several years, constituted an important issue in the debates surrounding the process of reform of the 1965 Juvenile Justice Act. Secondly, in such a context, the development of practices based on reparation, including mediation, using the idea of “responsibility” of the youngster has been considered as a risk to legitimise the reintroduction of (penal) “sanctions” in the juvenile justice field. This interpretation clearly limited the implementation of mediation practices in the French Community where various associations refused to implement mediation programmes. Thirdly, another concern is related to the legal guarantees that must surround the practice of VOM. Following these arguments, many organisations especially in the French Community refused to implement mediation before judgment or at the level of the public prosecutor. However, in the case of mediation, this option raises the question of the obligatory nature of mediation ordered by a juvenile judge, which contradicts the necessary voluntary character of the method. 44

Geudens, personal communication (2003).

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In conclusion, despite the possibility of funding given by Communities for organisations willing to develop VOM, it is clear that no appropriate legal framework is currently available for a further development of programs. The use of mediation is therefore still peripheral in the youth juvenile justice system. It is interesting to observe that the current debates surrounding the implementation of mediation practices in both Communities reflects positions of academics and practitioners concerning the development of a youth justice system in general in these two Communities. It is beyond the scope of this chapter to further discuss this topic but suffice to say that if the objectives followed by both Communities are quite similar (both want to maintain a specific justice system for juveniles which preserves an educational aim and recognises more legal rights), the means to reach them are envisioned quite differently. In Flanders, the idea of a “sanction law” ( (jeugdsanctierecht t) that would clarify the legal status of young people being the purpose of a judicial decision is increasing, whereas in the French Community the idea of ameliorating the existing rehabilitative system is favoured. On the one hand, many professionals in the French Community reproach their Flemish counterparts for focusing too much on the idea of “sanction”, associated (in the mind of the first) as a trend towards a more repressive juvenile justice system. On the other hand, the Flemish experts reproach their French counterparts to stay oriented towards the preservation of the current rehabilitative system, which in many ways has proven to fail. These various forces help to better understand the difficulty for the Federal Government to operate a modification of the 1965 Youth Protection Law including mediation practices, as well as the variation of VOM programs development currently occurring in both Communities. In a recent draft-law aiming at reforming the 1965 Youth Protection Law, the VOM practices as well as the pilot-project of conferencing for serious juvenile delinquency are included. In 2004-2005, a new federal law may thus enhance the development of VOM in both Flanders and Walloon and could lead to a more standardised approach throughout the country. Practice will have to show to what extent this new legislation will enhance or impede the applicability of restorative practices such as VOM and conferencing.

REFERENCES Aertsen, I., 2000, Victim-Offender Mediation in Belgium, in: Victim-Offender Mediation in Europe, European Forum for Victim-Offender Mediation and Restorative Justice, ed., Leuven University Press, Leuven, pp. 153-190.

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Baeselen, X., and De Fraene, D., 2000, Vers une reforme fondamentale de la loi de 1965 relative à la protection de la jeunesse, Courrier hebdomadaire du CRISP, Centre de recherche et d’information socio-politiques, n. 1676-1677. Buonatesta, A., 1997, Médiation et service a la Communauté dans le cadre de la loi du 8 avril 1965 sur la Protection de la Jeunesse. Ebauche paradoxale d’un modèle réparateur (unpublished). Buonatesta, A., 1999, Mediation with adult and juvenile offenders. A comparison from the experience of the Centre GACEP in Charleroi (Belgium), paper presented at the 1st conference of the European Forum for Victim-Offender Mediation and Restorative Justice, Leuven. Claes, M., Spiesschaert, F., Van Dijk, C., Vanfraechem, I., and Van Grunderbeeck, S., 2003, Alternative practices for juvenile justice in Flanders (Belgium): the case for mediation, in: Repositioning Restorative Justice. Restorative Justice, Criminal Justice and Social Context, L. Walgrave, ed., Willan Publishing, Devon, pp. 239-254. De Fraene, D., 2002, Politiques publiques et pratiques de traitement de la délinquance juvénile: une relation de conditionnement réciproque (2nd tome), Université Libre de Bruxelles, (unpublished Ph.D. thesis). Dumortier, E., 2001, Over het herstel (van het) recht voor kinderen, Panopticon, 499. Eliaerts, C., and Dumortier, E., 2002, Restorative justice for juveniles: in need of procedural safeguards and standards, in: Restorative Justice in Context: International Practice and Directions, E. Weitekamp and H.J. Kerner, eds., Willan Publishing, Devon, pp. 204-223. Eliaerts, C., 2003, Gerechtelijke bescherming van jeugdigen. De Wet van 8 april 1965, in: Jongeren en Recht, Centrum voor Beroepsvervolmaking in de Rechten, ed., Intersentia, Antwerp. Geudens, H., 2003, Voorzet tot visie voor het toekomstige beleid inzake jeugddelinquentie, paper presented at the “Symposium Vlaams beleid inzake jeugddelinquentie”, Brussels. Gysemans, L., 2002, De rol van de jeugdadvocaat bij herstelgericht groepsoverleg, Katholieke Universiteit of Leuven (unpublished thesis). Nuytiens, A., Van Grunderbeeck, S., Spiesschaert, F., and Vanthuyne, T., 2002, Herstelgerichte afhandelingen van delicten gepleegd door minderjarigen. Leerprojecten – gemeenschapsdienst – herstelbemiddeling. Eindrapport, Vrije Universiteit Brussel, Katholieke Universiteit Leuven and Universiteit Gent (unpublished). Onkelincx, L., 2004, Voorontwerp van Wet tot Wijziging van de Wetgeving betreffende de Jeugdbescherming en het ten laste nemen van Minderjarigen die een als Misdrijf Omschreven Feit hebben gepleegd, d Ministry of Justice, Brussels (unpublished). OSBJ (Ondersteuningsstructuur Bijzondere Jeugdzorg), 2002, Bedenkingen bij het voorontwerp van wet houdende antwoorden op delinquent gedrag. Tekst voor studiedag ‘De weeën van het nieuwe jeugdrecht’ van 3 mei 2002, Brussels (unpublished). OSBJ (Ondersteuningsstructuur Bijzondere Jeugdzorg), 2003a, Herstelbemiddeling. Leerprojecten. Gemeenschapsdiensten. Minderjarigen. Vlaams overzicht, Brussels (unpublished). OSBJ (Ondersteuningsstructuur Bijzondere Jeugdzorg), 2003b, Rapport over de actuele status van de herstelgerichte afhandeling van jeugddelinquentie in Vlaanderen, Brussels (unpublished). Poulet, I., and Billen, D., 1999, La médiation dans les services de prestations éducatives et philanthropiques. Evaluation de trois projets pilotes, Recherche action réalisée en collaboration avec Le Radian, le GACEP, Arpège, Rapport Final, Synergie, Brussels. Suggnomè, 2003, Niewsbrief, f 4 (15 November). Van Garsse, L., 2001, Praktijk en wetenschap. Drie bedrijven uit de ontwikkelingsgeschiedenis van een bemiddelingspraktijk, in: Herstelrecht tussen toekomst

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en verleden. Liber Amicorum Tony Peters, L. Dupont and F. Hutsebaut, Leuven University Press, Leuven, pp. 515-530. Van Dijk, C., Van Grunderbeeck, S., Spiesschaert, F., and Vanthuyne, T., 2002, Herstelgerichte afhandelingen van delicten gepleegd door minderjarigen. Leerprojecten – gemeenschapsdienst – herstelbemiddeling. Eindrapport, Vrije Universiteit Brussel, Katholieke Universiteit Leuven and Universiteit Gent (unpublished). Vanfraechem, I., 2003, Implementing Family Group Conferences in a Legalistic System. The example of Belgium, in: Repositioning Restorative Justice. Restorative Justice, Criminal Justice and Social Context, L. Walgrave, ed., Willan Publishing,, Devon, pp. 313-327. Vanfraechem, I., 2005, Evaluating conferencing for serious juvenile delinquency, in: Restorative Justice: Emerging Issues in Practice and Evaluation, E. Elliott and R. Gordon, eds., Willan Publishing, Devon. Vanneste, C., 2001a, Les décisions prises par les magistrats du parquet et les juges de la jeunesse a l’égard des mineurs délinquants, Research report, Institut National de Criminalistique et de Criminologie, Brussels. Vanneste, C., 2001b, Une recherche sur les décisions prises par les magistrats du parquet et les juges de la jeunesse, Journal du Droit des Jeunes, 207:5-12. van Welzenis, I., 2003, Eén jaar na ‘Everberg’. Waar staan we en hebben we een oplossing voor de problemen?, Vlaams marxistisch Tijdschrift, 37(1):43-55. Walgrave, L., Berx, E., Poels, V., and Vettenburg, N., 1998, Belgium, in: Confronting Youth in Europe. Juvenile Crime and Juvenile Justice, J. Mehlbye and L. Walgrave, eds., AKF, Denmark, pp. 55-95.

Chapter 10 VICTIM-OFFENDER MEDIATION WITH JUVENILES IN LUXEMBOURG Paul Schroeder -

1.

INTRODUCTION

In this chapter, Victim-Offender Mediation (VOM) with juveniles is defined as a process in which two co-mediators assist the victim and the juvenile offender to address the consequences of the offence for both parties. Mediation results from the referral of a case involving a juvenile offender. The referral is made by the prosecutor’s office to a mediation service with which there is an informal agreement for the provision of mediation. VOM is a very recent phenomenon in Luxembourg. From the middle of the 90’s onwards, professionals from the social and judicial field started to think about alternatives to judicial proceedings in case of offences. Thus, the prosecutors of the judicial districts of Luxembourg and Diekirch1 mentioned from 1995 on the possibility to formally introduce VOM in the penal procedure. Their main reason to promote VOM was to reduce the important number of cases where no action was taken by the prosecution. The prosecutor of the district of Luxembourg, M. Robert Biever, was convinced that the lack of action is difficult to accept for the victim and the public opinion and, at the same time, it encourages the author to re-offend. He considered that it is not necessary that every incivility needs a penal sanction, but that an offence where no action is taken by the prosecution, will have harmful consequences for the victim and the offender, especially if 1

Luxembourg is divided into two judicial districts: the district of Luxembourg City, which is competent for the South and the Centre of Luxembourg, and the district of Diekirch, which is competent for the Northern part of the country.

211 A. Mestitz and S. Ghetti (eds.), Victim-Offender Mediation with Youth Offenders in Europe, 211-227. © 2005 Springer. Printed in the Netherlands.

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the number of those cases is too high and concern facts that constitute a real breach of the public order2. At the same time, the head of the department for legal and social information of the National Youth Service, Mr. Jos Bewer, was confronted with a growing number of requests for information from young people who encountered real social and relational problems, which often resulted in the breaking-off of social and family ties. In many cases, a judicial solution was not the appropriate answer to the problem. Therefore, Mr. Bewer was looking for other means to help his young applicants. He believed that mediation would be the most appropriate way to help to resolve the problems between the young people and their parents or the society. Concerning young offenders, the mediation process ensures that they can take on their responsibilities by facing their victims. For the latter, mediation has the advantage to lead them to understand what happened and obtain quick reparation of their moral or material damage. Above all, the mediation process should (re-)establish the communication between the persons involved, so that their future relation is not harmed in a lasting way. The first steps in the field of restorative justice were undertaken from September 1997 onwards. Mr. Jos Bewer was able to gain the support of the prosecutor of the district of Luxembourg, Mr. Robert Biever, and of the deputy prosecutor in charge of the juvenile protection department, Mrs. Mariette Goniva. A mediation service was established under the form of a non-profit making organisation. After the first encouraging experiences in the field of VOM with juvenile offenders, the public prosecutors of the two Grand Duchy judicial districts suggested to formally introduce VOM for adult offenders in the code of criminal procedure. The Minister of Justice, on February 18, 1999, submitted a bill concerning penal mediation to the parliament. Two month later (on April 21, 1999), the bill was discussed and voted by the parliamentarians3. Restorative justice practices started to develop slowly in Luxembourg. Some peer-mediation projects have been initiated in several secondary schools. Students have been trained to intervene as mediators in disputes between other students. For the moment, these projects remain marginal in terms of impact of restorative practices in schools. Whereas VOM with adult offenders has been offered in the whole country since its introduction in the code of criminal procedure, VOM with juvenile offenders is carried out only in the judicial district of Luxembourg by a single mediation service: the “Mediation Centre”4. The Centre was founded (or begun its activity) in 1998. Even though the mediation work is 2

Ministère de la Justice (1996). Schroeder (2004). 4 Centre de Médiation a.s.b.l., association sans but lucratiff 3

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carried out by an independent organization, VOM takes place inside the judicial system as the decision to refer a case to mediation is made by the public prosecutor before deciding on public action. Once the mediation is completed, based on whether the mediation was successful or not, he or she will decide whether the case should be dismissed or taken to court: In practice, the prosecution will close the case if an agreement has been found in mediation. The Mediation Centre works under the supervision of the Ministry of Family Affairs, as it does not work exclusively in the field of VOM. For example, the Mediation Centre also organises family mediations. Those mediations take place on a self-referral basis, which means that the parties are not sent to the Mediation Centre by a judicial institution. The activities in the field of VOM with juveniles are undertaken in collaboration with the public prosecutor’s office of the district of Luxembourg, on an informal basis and without a formal supervision of a ministry. The Ministry of Justice initiated the bill concerning VOM with adults, and is also responsible for the execution of the law, in particular for the accreditation of the mediators and the payment of the mediator’s fees.

2.

THE JUVENILE JUSTICE SYSTEM AND VOM

The juvenile justice system is separate from the judicial system for adults. There are special regulations applicable to procedures concerning juvenile offenders aged under 18. The general law is only applicable when there is no specific norm. Article 23 of the code of criminal procedure stipulates that it is the public prosecutor who receives the complaints and denunciations and follows them up. Specifically, the prosecutor decides on the appropriateness of the proceedings: she/he can simply dismiss the case if she/he considers that the facts do not constitute a breach to the law, or that the facts are not provable, or that the breach to the law was not serious enough to justify legal action to be undertaken. This principle applies equally for offences committed by adults or minors. In practical terms, the prosecutor who receives a complaint concerning a juvenile offender, has the possibility to take different actions: - she/he can dismiss the case; - she/he can give a written warning to the offender; - she/he can summon the offender to his office; - she/he can take the case to the youth court, which will take a measure provided for under article 1 of the law relating to juvenile protection.

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In that context, the prosecutor has also the possibility to recommend VOM to the offender. The decision will be taken on a case-to-case basis, depending on the facts, the behaviour of the offender and his criminal record. The juvenile justice system is governed by the law of August 10th, 1992 relating to juvenile protection5. The essence of the law is that the juvenile justice system aims to the protection of the juvenile offenders, not to the repression of their criminal conduct. Article 2 of the law stipulates: “A child under the age of eighteen at the moment of the facts, to whom facts that constitute an offence under penal law are imputed, will not be referred to the criminal jurisdiction, but to the youth court, which will take one of the measures provided for under article 1 of the law.” These measures go from a simple reprimand to fostering in a public institution. If the prosecutor considers that the measures available are unsuitable because the offence is too serious, she/he may ask the youth court to transfer a case to the ordinary criminal judicial system based on article 32 of the law. This is a possibility only if the offender is older than 16 years of age. Article 7 of the same law enumerates the cases under which the youth court can take one of the measures provided for under article 1. It applies to minors who skip school, live a life of debauchery, gamble, engage in drug traffic, prostitution, begging, vagrancy or criminality and to those who’s physical or mental health, education or social or moral development are compromised. Thus, the law considers, that all the children concerned have to be seen as victims and that they are in moral or physical danger. The aim of the law is to help every minor in distress. There is no explicit reference to VOM with juveniles in Luxembourg law. The recommendation of the prosecutor results from his power to decide on the appropriateness of the proceedings. The law of August 10th, 1992 relating to juvenile protection is often criticised by experts for its vagueness concerning the measures at the judge’s disposal and for the fact that it mixes up regulations concerning juvenile protection and those concerning juvenile delinquency6. As far as VOM with juveniles is concerned, one can say that the actual situation presents some benefits, but also some disadvantages. The absence of a specific legislation allows for very flexible use of VOM. There are no pre-conditions (e.g. confession of the offender) that must be fulfilled before referring a case to mediation. Theoretically, any offence is eligible for mediation. There are no limitations like maximum penalty or seriousness of 5

Loi du 10 août 1992 relative à la protection de la Jeunesse (Mémorial A, 1992, p. 2195, Service Central de Législation, Luxembourg). 6 See e.a. Forum (2001) or Heniqui (2001).

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the offence. The prosecutor can refer the case whenever she/he considers that mediation might be beneficial for the victim and/or the offender. The referral procedure is very informal and the Mediation Centre remains completely independent from the judiciary and free in conducting the mediation. The absence of a precise legal reference to VOM with juveniles puts the offenders at risk of unequal treatment. Indeed, at the moment, only young persons who commit their offence in the judicial district of Luxembourg may have the opportunity to settle their case through mediation. Referral to the Mediation Centre depends strongly on who the prosecutor dealing with a case is. The prosecutor will only recommend mediation if she/he is convinced of the validity and the benefits of the process. This necessitates good and continuous contacts between the personnel of the Mediation Centre and the prosecution. Without specific regulations, VOM depends too much on individuals. To conclude, one can say that VOM with juveniles constitutes a real paradox in the actual juvenile justice system. While the essence of the law of August 10th, 1992 is complete irresponsibility of the young offender, mediation promotes the exact opposite, namely the meeting between the young offender and her/his victim, which should encourage her/him to take responsibility for what she/he has done. This contradiction has never been criticised, on the contrary, the special commission “youth in distress” of the parliament stressed the importance of mediation in its final report and encouraged a wider use of it7, without questioning the general spirit of the law.

3.

THE ORGANISATIONAL STRUCTURE OF THE MEDIATION CENTRE

The Mediation Centre accepts to intervene in any inter-personal dispute, involving a relation between two or more persons. The most common interventions concern: - VOM with juveniles; - VOM with adults; - family mediation (in the broad sense of the term); - neighbourhood or workplace disputes; - schools (training and consulting). As already mentioned, the Mediation Centre is the only mediation service working in the field of VOM with juveniles. It covers the judicial district of 7

Chambre des Députés (2003, p.25-26).

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Luxembourg, even though there is no formal restriction that would forbid the referral of cases from the district of Diekirch. The Ministry of Family Affairs financially supports the Mediation Centre, but does not intervene in the management of the Centre. The projects are freely determined and carried out by the NGO. Once per year, the Centre has to submit its annual report to the Ministry in order to justify the use of the funds received. Regular meetings with the Ministry officials are held to keep them informed of the projects of the Centre. The NGO financially depends completely on the Ministry of Family Affairs. No other significant sources of funding are available. The Ministry of Justice does not contribute to the financing of the VOM activities of the Centre, as it normally does for the independent mediators practising VOM with adults. It had been decided in discussions among officials of the Ministry of Family Affairs, the Ministry of Justice and the NGO, that the Centre will receive financial support solely from the Ministry of Family Affairs. The NGO preferred not to depend from the Ministry of Justice in order to guarantee its independence from the judicial system. The annual costs for 2003 came to approximately 404.000 €, and were divided as shown in Table 10-1. Table 10-1. Annual costs of the Mediation Centre in 2003. Categories of expenditure € Salaries of permanent staff 258,100 Projects* 44,550 Rent of the office 33,236 22,025 Allowances for volunteer mediators Running costs 20,207 Training 16,277 5,531 Publicity Documentation 3,200 404,000 Total * Project costs for 2003 include among others the realisation of an external evaluation.

All mediation practices are conducted inside the premises of the Centre. Victims and offenders are invited to come to the mediation service at least two times: first for the individual preliminary meeting with a mediator, and second for the mediation session itself. The administration and management of the Centre is done inside the same premises. The Mediation Centre is located in an administrative building in the centre of Luxembourg City and has two rooms for the mediation activities, and three offices for the permanent personal. The accommodations are rented by the NGO and are separate and independent from other institutions. The Mediation Centre has 25 mediators at its disposal to conduct the mediations with juvenile offenders. Three mediators are employed full time

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at the Centre. The remaining 22 mediators are volunteers, who are paid by the session. The NGO is run by a board of directors in accordance with the law of the April 21st, 1928 concerning non-profit making organisations and foundations. The board of directors is composed of 16 members and meets at least twice per year to fix the general policy of the organisation. The members of the board are not mediators, but persons interested in mediation. An executive committee made up by the president, the vice-president, the secretary and the treasurer meets at least once per month, together with the permanent staff, and takes the decisions concerning the daily management of the NGO. The permanent staff of the Mediation Centre is composed of four persons: 1. a coordinator, who establishes the first contact with the parties, organises the mediation sessions and may also intervene as a mediator; 2. a jurist, who informs the mediators about the legal aspects of a case, intervenes in the mediation sessions as a neutral legal expert if necessary and may also intervene as a mediator; 3. a social worker, who establishes the contact with public services, institutions, NGO’s etc. where the young offender can carry out the community work, is responsible for the follow-up of the agreements and may also intervene as a mediator; 4. a secretary, who carries out the administrative work. The permanent staff is also in charge of promoting mediation in general and the work of the Mediation Centre in particular.

4.

THE MEDIATION PRACTICE

Offences committed by juveniles are usually reported to or noticed by the police. They can also be reported directly to the public prosecutor’s office. The prosecuting magistrate who receives the complaint has to decide upon the action to take. If the prosecutor considers that the facts are suitable for mediation, he will recommend the offender to contact the Mediation Centre. The recommendation has no legally binding effects, as there is no legal basis for such an action. The offender is free to follow the recommendation. At the same time, the public prosecutor’s office will send a copy of the file to the Mediation Centre. Most, if not all, offenders (or their parents) follow the recommendation of the prosecution and contact the Mediation Centre by telephone. The permanent personnel will briefly explain the caller the procedure and the aim of mediation. If the offender agrees on the principles, the coordinator of the

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Centre will arrange a date for the preliminary meeting with one of the mediators of the Centre. The offender is free to consult a lawyer. In practice however, only few young persons choose to exercise this right. During the preliminary meeting, the mediator will explain in detail the procedure as well as the sense of mediation. The offender will have the opportunity to describe her/his experience of what happened and she/he can freely decide to participate or not in mediation. Most mediators prefer to talk first with the minor alone before including the parents in the meeting. The preliminary meeting also allows the mediator to find out, if the roles of victim and offender are clearly defined, or if the offender has also been a victim earlier in the conflict. Indeed, the complaint is only a photograph of the conflict at a given moment, where one person decided to start judicial proceedings against another person. This picture does not necessarily reflect the whole scope of the conflict. It is the role of the mediator to find out the whole story of the conflict. If the offender agrees to meet the victim in mediation, the Mediation Centre will send a letter to the victim and invite her/him to contact the Centre. The aim is to arrange a preliminary meeting with a mediator. The victim has the possibility to tell the mediator her/his point of view about what happened. Her/his lawyer can assist her/him. The victim can freely decide if she/he wants to meet the offender in order to find an agreement. Possibly, if it is too painful for the victim to meet the offender directly, the possibility of an indirect mediation is taken into consideration and discussed with the mediator. After the preliminary meetings, two outcomes are possible: 1. One of the parties refuses to participate in mediation. In that case, the file will be returned to the public prosecutor’s office with the information which party did not want to participate in mediation. 2. Both parties agree to meet in mediation. The mediation session will be organised by the coordinator of the Centre. In most cases, one session is sufficient to come to an agreement. If necessary, more meetings can be organised.

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reported to

reported to

POLICE

informs sends to

YOUTH COURT

decides

DISMISSAL

PUBLIC PROSECUTION

recommands mediation

informs about

OFFENDER

LAWYER O.

contact invites MEDIATION CENTRE

VICTIM contacts

organises

LAWYER V.

Figure 10-1. Communication processes between the Mediation Centre and other institutions.

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The mediation session(s) may result in two outcomes: 1. The parties are not able to reach an agreement. In this case, the file be returned to the prosecution with the information that the parties but did not settle their dispute. 2. The parties reach an agreement. The agreement will be described subscribed by the parties in three copies. Each party will keep original, the third one will be sent to the prosecutor’s office.

will met and one

Once the file is received by the public prosecutor’s office, the prosecutor in charge of the case will have to decide upon taking further action. If an agreement has been reached, the case will typically be dismissed, even though in theory, the prosecution can continue further proceedings if the agreement is considered insufficient to re-establish public order. If no agreement has been found, the prosecution is free to decide if other measures have to be taken or if the case will be dismissed. The Mediation Centre will not be informed on the action taken. The phases of the communication processes between the Mediation Centre and other institutions are summarised in Figure 10-1.

5.

CRITERIA FOR REFERRALS AND ACCEPTANCE OF CASES

There are neither written recommendations for referrals nor any restrictions. In theory, any offender could be eligible for mediation regardless of the offence. In practice however, mediation is recommended particularly in cases of theft, injury, vandalism, assault and battery and in cases where the personal relation between the victim and the offender is at stake. The head of the juvenile protection department of the prosecution of the district of Luxembourg excludes to refer cases concerning racketeering, acts of gratuitous violence and offences with no victim8. Table 10-2, representing the cases dealt with in the Mediation Centre, might give an idea of the type of cases referred by the prosecution. In Luxembourg, the prosecution plays the central role in the implementation of mediation processes. This can be seen as an advantage or a disadvantage of the system. On the one hand, the advantage lies in the fact that only few persons need to be convinced of the usefulness and the benefits of mediation. The experience of Luxembourg shows that the support of the public prosecutor and his deputy was sufficient to launch the first project. On the other hand, a change in personnel within the public prosecutor’s office 8

Interview with deputy prosecutor, Mrs. Mariette Goniva, March 25, 2003.

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may shatter the efforts that have been undertaken to establish VOM in the juvenile justice system. Table 10-2. Cases dealt with in the Mediation Centre. Offence 2000 2001 Theft 44 73 Assault & battery 30 29 Damage to property / vandalism 10 21 Insult 7 3 Other 1 5

2002 44 22 11 8 8

2003 49 26 19 14 3

Total 210 107 61 32 17

Beyond these organisational considerations, the predominant place of the prosecution in the procedure may prevent a broader use of VOM practices and reduce it to an administrative instrument at the prosecutor’s disposal. Indeed, the possibility to undertake mediation should be given at any stage of the procedure. It often happens that a conflict is already too inflamed when it arrives to the prosecution. It becomes very difficult to gather the parties around the mediation table. The plaintiff does not want to give in and prefers to see her/his offender punished by the judge. In those cases, an earlier attempt to undertake mediation could be beneficial. It is therefore necessary to analyse, under which circumstances, police officers could recommend mediation to the parties in conflict. It should also be possible to undertake mediation parallel to the judicial proceedings. In cases in which the prosecution considers that the facts require a judicial response, the possibility should be given to the victim and the offender to meet in mediation in order to deal with the emotional consequences of what happened. The victim would have the opportunity to understand why things happened and the offender could take on her/his responsibilities and possibly express her/his excuses or repair the damage caused. The court could consider the outcome of the mediation. Finally, mediation should also be offered after the judicial procedure, in order to permit the re-establishment of the relation and the social stability of the community for the time after the sentence.

6.

JUVENILE DELINQUENCY IN LUXEMBOURG

Due to the fact that the law of August 10th, 1992 relating to juvenile protection makes no distinction between cases in which a juvenile committed an offence and those in which the protection of the juvenile is at stake, it is almost impossible to obtain figures representing the activity of the prosecution in the field of juvenile delinquency alone. The annual report of the Ministry of Justice only indicates the total number of cases related to

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juvenile protection treated by the prosecution. These figures are represented in Table 10-3. Table 10-3. Number of cases related to juvenile protection received by the prosecution. Judicial year Judicial year Judicial year * Judicial year 1999-2000 2000-2001 2001-2002 2002-2003 Cases related to juvenile protection received by the public prosecutor’s office 1,214 1,238 1,335 1,221 Dismissal of cases related to juvenile protection 354 294 390 263 Decisions of the youth court 253 364 307 310 * September 1999 – August 2000.

The most explicit figures concerning juvenile delinquency can be found in the annual report of the Police (see Table 10-4). Table 10-4. Offences committed by juveniles reported to the Police. Crimes 2000 2001 Offences against property Burglary 49 60 236 82 Motor vehicle thefts Other thefts 279 357 Vandalism 156 164 Forgery or falsification 6 13 20 24 Other offences against property Robbery (with acts of violence) 42 67 TOTAL 788 766

2002

2003

85 25 335 253 5 33 70 806

72 42 304 127 2 12 32 591

Offences against persons Acts of violence against persons Sexual offences Other offences against persons TOTAL

150 10 123 283

163 2 65 230

213 21 100 334

160 7 79 246

Miscellaneous Drugs Illegal immigration Other offences TOTAL

234 24 83 341

232 22 62 316

244 45 80 369

305 37 95 437

1,412

1,312

1,509

1,274

GENERAL TOTAL

It is very difficult to compare the figures reported in Tables 10-3 and 10-4. First, they do not use the same period of reference. Whereas the Police data are based on the calendar year, the Ministry of Justice bases its statistics on the judicial year (September-August). Second, the Police lists breaches to the penal law committed by juveniles, while the Ministry of Justice reports

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the activities of the judicial system in the field of juvenile protection without making any distinction. Therefore, it is impossible to say that the cases received by the prosecution - those which have been dismissed and those where a decision has been taken by the youth court - concern only cases of juvenile delinquency.

6.1

Mediation activity in relation to juvenile delinquency

From 2000 to 2003, the Mediation Centre received a total of 332 cases concerning juveniles from the prosecutor’s office of the district of Luxembourg (see Table 10-5). Table 10-5. Number of referrals and outcome. 2000

2001

2002

2003*

Total N % Agreement 43 47 44 31 165 49.6 Partial agreement 2 2 0.6 Agreement before mediation 17 10 8 5 40 12.0 Failure 1 1 3 5 1.5 18 27 28 14 87 26.2 Refusal of the mediation Non-admission of the facts 3 1 4 1.2 Total referrals 81 88 81 82 332 100 * For 2003, the total of referrals does not correspond to the total of outcome as 29 cases were ongoing on December 31, 2003.

The figures in Table 10-5 show that in 62.2% of the cases, there was a positive outcome of the mediation, in 49.6% of the cases the victim and the offender managed to solve their conflict for good, while in 0.6% of the cases, they obtained at least a partial agreement. In 12% of the cases, the parties reached an agreement before the Mediation Centre received the file. This means, that the damage had been repaired or that apologies had been made, and that the victim had no further demands towards the offender. Only in 1.5% of the cases, the persons who agreed to meet in mediation were unable to reach an agreement. In 26.2% of the cases, a person refused to enter into a mediation process. In most cases, the victim refused to meet the offender for different reasons. In 1.2% of the cases, the offender did not admit the reproached facts, so that mediation was not possible. The files had to be returned to the prosecution. The experience of the Mediation Centre shows that the most critical moment in the procedure is the first contact with the victim and the offender. The mediators must comprehensively explain the mediation process and the possible benefit for the persons involved. They must take the time to understand why the victim or the offender does not want to settle the case in mediation. The fears of the victim to meet his offender must be taken into

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account, as well as his desire of revenge. The mediators must also take care that the rights of the offender are respected (notably the presumption of innocence). In any case, the figures reveal that once the parties accept to meet each other, they are in general able to reach an agreement.

7.

FOLLOW-UP PROCEDURES AND CRITICAL ASPECTS

For the moment, there are no institutionalised follow-up procedures. Meetings between officials of the prosecution and the Mediation Centre take place on an irregular basis. The impact of mediation on recidivism has not yet been scientifically or statistically analysed9. Several punctual initiatives to evaluate the current practices do exist. In the context of the European Master in Mediation, a student has researched on the experiences and the satisfaction of the persons that participated in a mediation procedure in the Mediation Centre (Demaret, 2004). The board of directors of the Centre also decided to order an external evaluation of the work of the Mediation Centre. The exact scope and aim of the study remain to be determined. The number of referrals is satisfactory, even though it has not significantly increased over the years. However, quality is more important than quantity. Mediation should not be a mere instrument to handle the complaints received by the prosecution. Mediation services are not subcontractors of the public prosecutor’s office. Mediation procedures should be guided by the principles of restorative justice. For that purpose, it is important, that the prosecuting magistrates refer mainly cases in which mediation can be really beneficial for both parties. This is in particular the case in offences where the victim and the offender know each other and who still will have to live together after the facts. Also, net-widening through mediation has to be avoided. Petty crimes that would have been dismissed in absence of VOM procedures should also be so in presence of VOM.

9

The head of the juvenile protection department of the prosecution of the district of Luxembourg considers that she not often came across a second time juveniles who participated in mediation (see footnote 5).

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PRACTICE AND THEORETICAL FRAMEWORK OF VOM AT THE MEDIATION CENTRE

The approach to mediation of the Mediation Centre is inspired by the theories and work developed by Jacqueline Morineau (1998). Mediations in the Mediation Centre are always co-mediated, that is conducted by two mediators. If possible, the same mediator will meet the offender and the victim in two separated preliminary meetings. This practice allows the first mediator to become familiar with the case and at the same time to allow the parties to build a relation of confidence with the mediator, in strict respect of the principle of impartiality. The second mediator will join for the mediation session. Both mediators have an equal status during the mediation process. They will have to confer with each other in order to conduct the mediation and agree on their respective role in the mediation session. The mediators working for the Mediation Centre commit themselves to the code of ethics adopted by the Centre. This code of conduct is inspired by the code elaborated by the “Centre de Médiation et de Formation à la Médiation” of Paris. The code determines in particular the obligations of the mediators concerning their independence, neutrality, impartiality and confidentiality. There is no information available concerning the existence of a specific code of ethics for judges, public prosecutors or lawyers concerning mediation practices.

9.

PROFESSIONAL CHARACTERISTICS AND JOB EVALUATION OF MEDIATORS

In Luxembourg, there are no legal provisions that regulate the recruitment procedures for mediators working in the field of VOM with juveniles. Also, the Mediation Centre has no written regulations. In 1997, the initiator of the Centre, Jos Bewer, managed to gather about 30 persons from different professions who agreed to receive training in mediation. New candidates have to address a letter of motivation and curriculum vitae to the board of directors who will decide on a case-to-case basis. The candidates must have followed a training that is at least equivalent to the initial training received by the mediators of the Centre. The initial training organised by the Centre lasted 90 hours provided by Jacqueline Morineau from the “Centre de Médiation et de Formation à la Médiation” of Paris. The training was completed by 50 hours of practical training as a co-mediator. As a result, the complete training includes 140

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hours. Moreover, the Mediation Centre offers one or two sessions of vocational training to its mediators every year. They last 8 to 16 hours each. Since October 2002, a university degree in mediation can be obtained at the University of Luxembourg. The degree is open to individuals that have already an academic degree or have a professional experience of at least 10 years. It includes 180 hours of theoretical courses, 70 hours of practical training in a mediation service and the presentation of a final thesis. This course might be the future reference for setting standards concerning the training of mediators. The Mediation Centre has at its disposal a multidisciplinary team of mediators, with diverse professional backgrounds (Table 10-6). Table 10-6. Professional background of the mediators. N Profession Educator 9 Lawyer 5 Psychologist 4 Social assistant 3 1 Teacher Nurse 1 Sociologist 1 25 Total

The mediators are responsible for the conduct of the preliminary meetings and the mediation sessions. All the preparatory and administrative work is done by the permanent personnel. They receive the files from the prosecution, establish the first contact with the victim and the offender, organise the meetings and mediation sessions and do the follow-up of the case after the mediation. One member of the permanent staff checks if the agreement is respected and returns the file to the prosecution after the mediation procedure is finished. This means that the volunteer mediators can completely concentrate on their mediation work. After each preliminary meeting or mediation session, they are required to write a little summary about the meeting. This summary is intended for internal use only. The comediator will have access to that summary in order to better understand and prepare for the case. It might also happen that the mediator who conducted the preliminary meeting is not available for the mediation session. In that case, the summary allows the substitute to know contents that had been discussed during the preliminary meeting. In 2003, the mediators of the Mediation Centre carried out a total of 956 hours of individual meetings and mediation sessions. The individual workload of the mediators varies depending on their availability. While very active mediators worked up to 30 hours per trimester, other did less than 5 hours during the same period.

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The coordinator of the Mediation Centre is responsible for managing the group of mediators. He organises regular meetings with the mediators during which the work of the Centre can be analysed and problems can be discussed. The two mediators assigned to a case have the possibility to confer with each other about how to conduct the mediation process. For that purpose, they normally meet prior to the mediation session. If a particular problem arises, they may consult the permanent staff of the Centre. Furthermore, the Mediation Centre offers its mediators the possibility of external supervision when they feel that it is needed.

10.

CONCLUSIONS

Since its creation in 1998, the Mediation Centre has treated several hundred of cases in the field of VOM with juveniles. By its work, it has contributed to the promotion of the first restorative justice practices in Luxembourg. Today, VOM is an established process in the juvenile justice system, even if it operates without a legal framework. Based on the past experiences, VOM with juveniles should be formally introduced in the juvenile justice system, in order to perpetuate the practices and to avoid inequalities between the persons concerned. The implementation of such legislation should respect the principles of restorative justice and commonly accepted standards. The potential to do so is there, it just has to be done.

REFERENCES Becksy, S., and Muller, M., 2000, Youth Policy and Youth Services in the Grand Duchy of Luxembourg, Int. Jugendaustausch- und Besucherdienst der BRD, SNJ, Bonn. Bewer, J., 1989, Jugenddelinquenz in Luxemburg, Bulletin de l’ANCE, 65:12-24. Chambre des Députés, 2003, Rapport de la Commission Spéciale “Jeunesse en Détresse”, Doc. Parl. n. 5225 (27 March 2003). Demaret P., 2004, L’expérience en médiation, Centre de Médiation, Luxembourg. Forum, 2001, Jugendschutz am Ende? Ein Gesetz hat ausgedient!, Forum, 205:15-50. Heniqui, A., 2001, Mesure d’urgence, Lëtzebuerger Land, d 44:6-7. Ministère de la Justice, 1996, Rapport d’activité, Service Central des Imprimés de l’Etat, Luxembourg. Morineau, J., 1998, L’esprit de la médiation, Erès trajets, Ramonville Saint-Agne. Schroeder, P., 2004, La médiation pénale: entre gestion des affaires et justice restaurative, Centre de Médiation, Luxembourg. Spielmann, D. (1994), Jugendschutz in Luxemburg, Cahiers I.S.I.S., Gewaltbereitschaft bei Jugendlichen, Centre Universitaire, Luxembourg, pp. 81-93.

Chapter 11 VICTIM-OFFENDER MEDIATION WITH JUVENILE OFFENDERS IN GERMANY Michael Kilchling -

1.

INTRODUCTION

The issue of Victim-Offender Mediation (VOM) has been discussed in Germany continuously since the mid 1980s. The generic term which prevailed here is Täter-Opfer-Ausgleich (TOA). This particularity of German terminology can be explained as a characteristic of the VOM discussion and its origins in the country as well as of the ideals of its prime discussants; in other words, it is more than just an “accidental” matter of translation, that the wording in German is “offender-victim mediation” instead of victimoffender mediation1. This is even a mirror of the fact that the criminal justice system here is still less victim-oriented and more offender-centred than in many other countries. It is of importance to point out at the beginning of this chapter, that the principal offender orientation is even more significant in the context of juvenile justice which is based upon an explicit educational approach2. Unlike in the adult criminal law field, the potential positive effects of VOM have to be assessed in the light of the impact upon the young offender; from

1

2

See also Kilchling (1995, pp. 13 et seq.); Walther (2000, p. 269) provides a perhaps too literal translation: “offender-victim-balance”. The educational rationale of the juvenile justice system is prevailing, notwithstanding the fact that it was debated in a highly controversial way during the German Jurists’ Assembly ((Deutscher Juristentag) in Berlin in 2002; see Albrecht (2002), Albrecht and Kilchling (2002).

229 A. Mestitz and S. Ghetti (eds.), Victim-Offender Mediation with Youth Offenders in Europe, 229-257. © 2005 Springer. Printed in the Netherlands.

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the legal point of view, other considerations, in particular victim-related advantages, must not play any decisive role3.

1.1

Origins, development and implementation of VOM

The discussion about VOM in Germany has emerged from a complex background. Many different arguments and aspects have been contributing to a very stimulating interplay between law practitioners, academics, social workers, politicians and a variety of further actors representing very different criminal-political and even ideological perspectives, each of those arguing in favour of VOM from very different starting points and with very different aims as well. Just a few key issues shall be mentioned here4. a) The crisis of criminal penalties: the critique on the present penal system including its catalogue of corrections formed the basis for a search for an alternative to conventional criminal penalties. In the context of such issue, VOM is often referred to as a new path or new approach of dealing with crime5. b) The contributions from the victimological school, which argue with regard to the victims’ interests in the context of criminal justice6, are also of high significance. c) Strong links with the afore-mentioned purely victim-oriented approach can be identified in the contributions of the international restitution movement7. For its proponents, however, restitution or reparation of the victim is the focal point whereas the mediation component is more or less a background or, at least, a secondary aspect. d) Abolitionism has also had an impact on the discussion, at least with regard to the theoretical discussion8. From a perspective of abolitionism, the idea of mediation was favoured as an autonomous way of dealing with conflicts that can reduce the role of criminal law in general. Nevertheless, the increasing use of mediation was criticised for netwidening. This criticism in turn was a stimulus for the debate in criminal law as well. e) Also important, from a theoretical point of view, is the question of how and to what extent VOM can be anchored within the doctrine of the rationale and purposes of criminal law. Reconciliation with, or, at least, 3

For more details, see paragraph 3.1. For more details, see Baumann et al. (1992), Bannenberg and Uhlmann (1998), Kerner (2002). 5 See, e.g., Dölling et. al. (1998). 6 For more details on the victim relevance of VOM, see Kilchling (1995), Kilchling and Löschnig-Gspandl (2000). 7 For more details, see Walther (2000). 8 See, e.g., Kaiser (1987), Kaiser (1996, pp. 1084 et seq.). 4

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reparation of the victim in their function as a rationale of either criminal sanctioning (narrow perspective) or even the criminal justice system as a whole (wide perspective) are the key words in such a context9. f ) Finally, VOM is also an issue within the criminological discussion. The inherently criminological view associates VOM with various theoretical expectations. Deterrence effects upon a particular offender are particularly related to the fact that the offender confronts the consequences of his behaviour and is required to talk with the victim as a person. This can achieve effects upon the offender’s conscience. At the same time, reparation, as well as any other possible form of restorative action, is seen as a socially constructive achievement that can be meaningfully experienced and at the same time contributes to reconciliation. VOM could fulfil the expectations of prevention theories and could lead to a fair balance of guilt. The general public puts its hope in re-establishing peace under the law (Wiederherstellung des Rechtsfriedens) through the offender accepting the rule of law, and voluntarily taking responsibility, even formally, for the victim and the community. Autonomous and socially constructive conflict-resolution is the primary means of penal control within this framework10. With support by a positive vote of the 1984 German Jurists’ Assembly ((Deutscher Juristentag) in Hamburg, VOM began in that same year, with four pilot projects in juvenile criminal law and one project in criminal law dealing with adults. The results were assessed to be so positive that they made way for many projects in the field of juvenile criminal law, carried out by different bodies, in particular, the youth court assistance, independent NGOs that were already working in the area of social work such as, for example, the probation service, and NGOs which were especially set up for the organisation of VOM. Among adults, only a few projects were carried out by the legal aid services and fewer still by independent bodies. The first four model projects in juvenile criminal law were initiated in five cities: Braunschweig, Reutlingen11, Cologne12 and Munich/Landshut (the latter two local schemes being conducted by the same association13). All these pilot projects were conducted by private NGOs14 of public welfare, however, subsidised with 9

For more details, see Kilchling (2002a). See, e.g., Bannenberg (1998); Rössner 1999 speakes of integrative sanctioning. 11 Named Project Handshake ((Projekt Handschlagg). 12 Named Project Balance (Projekt ( Waage). 13 Named Project Reconciliation ((Projekt Ausgleich). 14 With the exception of the Braunschweig project, conducted by the Juvenile Court Aid Service ((Jugendgerichtshilfe, JGH H), i.e., a semi-public association which, notwithstanding its private organizational character, is a body that fulfils administrative functions in all cases of juvenile prosecution. Furthermore this affiliation with the JGH explains why the 10

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considerable public means granted in order to promote the idea of VOM and to test the possibilities for general implementation under practical conditions. In 1984, the first adult project began in Tübingen, followed by local schemes in Hamburg and Düsseldorf (both founded in 1987)15. At that time16 the Court Aid Services carried out all the projects for adults17. It is the most important organisational difference between mediation for adults versus mediation for juveniles in Germany, that this quasi-official, administrative-like path of VOM is not available for cases concerning juveniles. In accordance with the general standards for mediation18, none of the projects dealt with petty offences or minor offences that were suitable for diversion without any further intervention. Offences without individual victims, such as shoplifting and dealing in drugs and traffic offences, were excluded from the mediation procedure from the outset. As for the adult projects, felonies were also excluded. There were no further restrictions regarding the type of offences. From the beginning VOM in the area of juvenile criminal law, unlike in the field of adult crime, was subjectt to a pronounced growth. Not only were there an increasing number of cases but also there were also more and more projects offering VOM. To exaggerate one might say that, temporarily, the number of VOM schemes grew even faster in some regions than the number of cases, indicating reluctance in the readiness of prosecutors to assign cases19. Through a number of legislative changes in both fields of criminal law these positive developments were supported20. By the first amendment to the Juvenile Justice Act (JGG), enacted in December 199021, mediation in criminal law relating to young offenders was given a more important role. The JGG explicitly emphasises that effort towards reconciliation should be a reason for refraining from prosecution. Thus, the legal basis of the projects dealing with VOM was noticeably Braunschweig project, unlike the other schemes mentioned here, never received a specific name. 15 For more details about all local initiatives explicitly mentioned here, see Bannenberg (1993, pp. 91 et seq.). 16 In the meantime, in most Federal States also other NGOs offer VOM for cases dealing with adult offenders. Only few States such as, e.g., Baden-Württemberg, refer adult cases exclusively to the Court Aid Service; compare Löschnig-Gspandl and Kilchling (1999). 17 Unlike the Juvenile Court Aid Service (JGH ( H), the (adult) Court Aid Service (Gerichtshilfe) is a public agency that is part of the criminal justice system. 18 See paragraph 4.4. 19 Hartmann (1998, p. 8) reports that in some local areas VOM schemes had to be closed down due to a lack of case referral, caused by such prosecutorial reluctance. 20 For more details, see Löschnig-Gspandl and Kilchling (1997), Hartmann and Kilchling (1998), Bannenberg (2000), Kilchling and Löschnig-Gspandl (2000). 21 First Amendment Act to the Juvenile Justice Act ((Erstes Gesetz zur Änderung des Jugendgerichtsgesetzes; hereafter 1. JGGÄndG) of 30.08.1990, BGBl. I p. 1853.

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strengthened; however – unlike, for example, in Austria – without having “upgraded” non-prosecution as an explicit legal consequence (or “sanction” type) of its own22. In addition to the already existing possibilities of diversion (art. 45 and 47, i.e., an already existing formal-legal context in which VOM could be integrated without the necessity to explicitly amend the law), mediation has been established as an independent legal consequence in two different sanctions: as a so-called educational measure (art. 10 s.1 no.7 JGG) and as a disciplinary measure (art. 15 s.1 no.1 JGG). For more details, see paragraph 3.2.

1.2

Relation between VOM and other fields of mediation

During the initial developmental phase of mediation in criminal law, there has been no corresponding development of mediation in other fields, although in particular cases mediators have worked in other types of mediation (e.g. divorce mediation). Since 1998, however, a new development has started to arise. Suddenly, the idea of mediation also appeared on the agenda and acquired high significance for lawyers in other areas of law23. In further education and at congresses many people from different fields of mediation have come together. Since January 2000, for example, the College of Social Work and Social Educational Work in Ludwigshafen has been offering a new four-semester course that gives the possibility of obtaining a certificate or diploma of mediator. Other universities such as the University for Distance Learning ((Fernuniversität) at Hagen, the University of Oldenburg or the University of Heidelberg offer a variety of new courses of mediation studies in different fields. The course of mediation offered by the so-called service office for VOM24 (Servicebüro TOA) in Cologne is provided for mediators working in the area of VOM. Mediators working with divorce cases or in schools can take part as well. There is also a development in criminal law to introduce experiments in using VOM in complex and difficult cases (e.g., domestic violence, violence between spouses, etc.). In the meantime, mediation has also developed much further in many other areas of law such as mediation in civil and public neighbour law, labour law, administrative insurance law, environmental law, and many more; almost all areas of law have been covered in the meantime. Already in 1992, the National Mediation Association (Bundesverband ( Mediation) was founded, that is an NGO which represents all different disciplines of 22

Compare art. 6 of the Austrian Juvenile Justice Act (hereafter JGG); for more details on that, see Pelikan (2000), Löschnig-Gspandl (2002). 23 For more details, see also Walther (1998). 24 For more details on this institution, see paragraphs 4.4. and 4.5.

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mediators from all areas of mediation25. Recently a nearly 1,500 pages handbook of mediation26 was published. In the very comprehensive context provided in the book, one might come to the conclusion that mediation in penal matters27 which once was the nucleus of the mediation movement fell more and more behind, to date appearing even kind of “peripheral” as compared to the flourishing mediation businesses in most of the other areas mentioned.

1.3

Quantitative significance of VOM

It is extremely difficult to gather a reliable account of how frequently VOM is applied in Germany. The reasons for this unsatisfactory situation are manifold. On the one hand, we are facing an incomplete, insufficient statistical coverage regarding the case disposition of public prosecutors and courts in the field of juvenile justice in general. Most of the relevant categories of measures and sanctions, under which VOM is an applicable sub-category, are counted on an overall basis only. Further difficulties arise from the fact that the New Federal States (i.e., former East Germany) are still not included in most of the relevant statistics28. The prosecutorial statistics is the only count that covers the country as a whole – although with the side-effect that the prosecutorial and the judicial case disposition can neither be counted nor be explained together. However, rough estimates are possible. a) Regarding the available figures from official statistics, we have to point out first, that the statistics of the prosecutorial case disposition provide no reliable count of (young) offenders or cases referred to VOM. The prosecutor only has the option to assign a case to mediation in the formal context of diversion. In juvenile justice, however, the related figure in the statistics does not identify any of the sub categories. The situation is relatively better with regard to the court statistics. Here as well, the various types of diversionary measures are not differentiated. The same is true for educational measures. But we have at least a count of the “punitive option” of VOM, that is mediation or other restorative action as a sanction. In 2001, a total of 2,572 compensation orders and another 144 apology orders were imposed as a disciplinary measure. These make up 4.6% of all disciplinary measures and as few as 2.8% of all convictions. Finally, at the upper end of the spectrum of corrections, that is, youth 25

Their website can be visited at www.bmev.de (in German only). Haft and Schlieffen (2002). 27 The chapter on VOM in the handbook by Kerner (2002) covers no more than just 23 pages. 28 Steffens (1999), Karliczek (2000) and Wegener (2000) provide specific information on the situation in the New Federal States. 26

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prison, there is a lack of any detailed information about the number of mediation or other restorative orders in the context of probation. For more details on the sanctioning practice in the area of juvenile justice, see paragraph 3.1. b) In addition to the official statistics which illustrate the situation from the judicial, that is, from the outside – or far endd – perspective which regards the final outcome of the judicial case, there are also a couple of figures available which refer to the case – or, more precisely, to the conflict – disposition within the mediation schemes; unlike the judicial figures, they are a mirror of the inner – or near endd – perspective. Based on the number of cases settled by local mediation programmes, a group of scientists is trying to establish a nationwide record of all cases settled by mediation that is, the so-called National VOM Statistics (Bundesweite ( TOA29 Statistik) k . The reported figures, however, are subject to a number of methodological limitations: the two most important points are (a) that all information is based solely on optional registration30, and (b) that the selection of local mediation schemes covered is not a scientifically representative sample31. Therefore, it has to be pointed out explicitly that all data coming from this source provides only an incomplete excerpt of the mediation reality in Germany. Notwithstanding these shortcomings, the project group meanwhile gathered a remarkable data set composed of the results of 7 annual waves32; this comprehensiveness is unparalleled in Germany. Based on this and other data from project evaluations, one can obtain a rough but realistic estimate about the quantitative development, i.e., the number of mediation cases in Germany. After a relatively low number of ca. 1,500 cases mediated in the ‘pioneering’ period from 1984 to 199033, the number increased from some 2,000 cases a year in the early 1990s34 to approximately 9,000 in 199635. In 1997, the annual number of cases mediated is supposed to have exceeded, 29

For more details on the project, its methodologies and findings, see, e.g., Hartmann (1996 and 1997), Hartmann and Stroezel (1998), Kerner and Hartmann (2003). 300 In addition to the written case reports that have to be submitted to the prosecution authorities, the local mediators are asked to optionally fill out a detailed statistical questionnaire for each finalised case, and to return it to the research group. Not surprisingly, there is widespread reluctance, and even resistance, on the mediators’ side. 31 See also Kerner (2002, p. 1261), Kerner and Hartmann (2002, p. 11). 322 1993, 1994, 1995, 1996, 1997, 1998, 1999. For a first in-depth analysis of the data, see Bundesministerium der Justiz (1998), most recent figures and analyses are presented by Kerner and Hartmann (2003). 33 Kaiser (1994, p. 315); Bannenberg (1993, p. 140) reports a total of 1,257 juvenile cases in the whole time span from the starting of the model projects until 1990. 34 Böttcher (1994). 355 Hartmann (1997), Hartmann and Kilchling (1998), Wandrey and Weitekamp (1998, p. 131), Bannenberg (2000, p. 263), Kerner (2002, p. 1269).

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for the first time, the 10,000 mark36 , 37. Since then, the increase accelerated further, and currently, the total number of cases mediated per year is estimated at 20,00038 to 30,00039. Since the beginning a rather stabile annual share of approximately two thirds of all these cases have been dealing with juvenile offenders, about one third took place in the field of criminal justice (law) for adults40. At this stage the state of knowledge about the overall relevance of VOM can be concluded as follows: on the one hand, the judicial figures are somewhat too high, as they include also other forms of restorative orders which are not necessarily a result of mediation in its true sense, whereas the figures generated by the so-called VOM statistics are, on the other hand, too low, due to the scientific limitations mentioned. As a result of this, there is no exact, scientifically reliable figure available on the total number of mediation cases.

2.

THE INSTITUTIONAL FRAMEWORK

To understand the institutional framework of VOM, one has to take into consideration at first the constitutional distribution of powers in the Federal Republic of Germany with its shared system of responsibilities. The Federation, on the one hand, is responsible for the primary legislation only. This means that the federal parliament sets the legal framework in the fields of substantive criminal law and the criminal procedure – in particular, in the criminal code (Strafgesetzbuch; hereafter StGB), the code of criminal procedure (Strafprozessordnung; hereafter StPO) and the Juvenile Justice ( ; hereafter JGG). Provisions on VOM have been Act (Jugendgerichtsgesetz introduced in all three major pieces of legislation mentioned (for more details, see paragraph 3.2.). All issues of implementation, organisation and administration, on the other hand, lie in the competence of the 16 Federal States. They have the exclusive power over the organisation of the criminal justice authorities and the way in which they apply the law. Regularly, the State Ministries of Justice issue various guidelines providing general rules and principles as to how certain provisions should be interpreted by their

36

Bannenberg (2000, p. 263). Of these, only 3,976 have been registered in the VOM statistics; the latest available figure is 5,176 (for 1999); compare Kerner and Hartmann (2003, p. 12). These figures give further indication that (and to what degree) the VOM statistics are incomplete. 38 Kerner (2002, p. 1269). 39 Rössner (2000, p. 15). 40 Bundesministerium der Justiz (1998), Bannenberg (2000). 37

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own State authorities. Meanwhile, in most of the States41, specific guidelines dealing with VOM were introduced42. These are far from being uniform. In addition, there exists a general guideline for prosecution, adopted by the Conference of the State Ministers of Justice, which deals with more general rules for the application of the main provisions of the Code of Criminal procedure43. Here again, VOM is referred to: under no. 93 the guideline provides that in the context of diversion restorative measures shall be given priority about traditional monetary orders in all suitable cases44. A similar general guideline exists for the Juvenile Justice Act45; here the impact of mediation for the education and socialisation of the juveniles is explicitly stressed46. However, the two uniform guidelines do not provide a definition for suitable cases. This question is subject to regulation by the State guidelines which itself also leaves some discretion to the local authorities. Sometimes, the local prosecution offices have additional internal guidelines in order to reach a uniform practice at least on the local level. Main addressees of all guidelines mentioned are, as far as our topical area is concerned, the public prosecutors who are the main gatekeepers into the VOM path. Unlike the prosecutors, judges who also can make referrals, are independent in their decision-making power. As a consequence, they are only bound by the primary legal framework; in their way of applying these norms and interpreting them, however, they have full discretion that cannot be limited or substantially “guided” by other authorities (except by way of overruling from a higher court47). Independent from any substantive State control is also the work of the mediation schemes itself. This is due to the fact that VOM is designed as a non-formal, independent and open-ended way of conflict resolution. As far as mediation conducted by private NGOs is concerned, it is self-evident that they are also administratively independent. The same principle of independence in substance also applies if public or even State agencies provide mediation services. The two most important institutions of this type 41

The first guidelines date back to the early 1990s. Most States introduced their regulations in 2000 or 2001. Today, Bavaria remains the only State, which still has no such general guidelines in this field. 422 Officially, most of these are unpublished; for a collection and comparative analysis of all the different regulations dealing with VOM, see Reuber and Rössner (2003). 43 The so-called guidelines for the criminal and administrative-criminal procedures ((Richtlinien für das Straf- und Bußgeldverfahren; hereafter RiStBV V), had been published in Meyer-Goßner (2003). 44 No. 93-3 RiStBV, as introduced in 1988. 45 The so-called guidelines for the Juvenile Justice Act ((Richtlinien zum Jugendgerichtsgesetz; hereafter RiJGG) of August 1994, had been published, e.g., in Eisenberg (2002). 46 Guideline no. 4 to art. 10 JGG. 47 For analyses of the case law on VOM, see Kilchling (1998), Franke (2003).

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are the Juvenile Court Aid Service, on the one hand, and the Community Youth Welfare Office on the other. Generally, all institutions mentioned are independent from each other. If there is more than one institution offering VOM at the same place, it lies within the discretion of the judicial authorities to decide to which of these institutions a particular case shall be referred. In some States or regions, the above-mentioned guidelines provide that the prosecutors shall refer the cases to a public or State institution. This is, however, only of importance for cases officially referred by prosecutors. If parties voluntarily go to mediation they are always free in their choice. The same is true with regard to any of the judicial referrals or orders that do not require a formal referral.

3.

LEGAL PROVISIONS FOR THE APPLICATION OF VOM

As can be concluded from the afore-mentioned different possibilities, quite a confusing variety of legal options for the application of VOM are available in the area of juvenile justice in Germany; many of them have been introduced throughout the past two decades.

3.1

General characteristics of the juvenile justice system

Before referring to these characteristics in detail, a short introduction to the juvenile justice48 system shall be given in order to describe the framework in which VOM is taking place. In Germany, juveniles between 14 and 18 years are subject to juvenile justice law providing for a special track of prosecution. On an exceptional basis, juvenile law can also be applied to young adults aged 18 to 20 if the accused still is in the mental state of a juvenile49. Whereas substantive law is the same as for adults (as provided by the criminal code), the jurisdiction50 is separate, including special procedural rules. Furthermore, the principles of sentencing as well as the catalogue of available corrections and penalties are different from those for adults. As regards the principles of sentencing, it has to be pointed out again that the juvenile justice system as a whole is governed by its particular educational approach51. As a consequence, any decision made by the prosecutor or judge has to be oriented to this aim. With regard to the principle of legality, which is also effective in the area of juvenile justice, 48

For more details, see, e.g., Eisenberg (2002). Compare art. 105 JGG. 50 For the types of the courts see below, footnote 53. 51 See above, paragraph 1. 49

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diversion is the most important instrument in cases in which formal punishment seems to be inappropriate. In this context VOM plays an important role. In addition, VOM or some other forms of restorative action are available as orders and penalties within all segments of formal sanctions. The figures provided are excerpts from the prosecutorial statistics 2001 (Statistisches Bundesamt (ed.), Staatsanwaltschaften) and the statistics on convictions by the criminal courts 2001 (Strafverfolgung). All figures are for the former West German States and Berlin only; new Federal States (former East Germany) are not included. Of even greater importance for the assessment of the significance of VOM on a comprehensive level is a closer look into the statistics which provide an impression of the prosecution reality juvenile offenders are facing in the country. The figures shown in Table 11-1 provide only an excerpt from the official statistics; it is meant to give an introductory picture of the number of juveniles formally processed within the Criminal Justice System in Germany, as well as of the two main types of treatment: diversion versus formal reaction. Due to the weaknesses and incompatibilities of the official statistics only the situation in the former Western part of Germany can be compared. On the prosecutorial level some 154,000 individuals were diverted in 200152, and some 184,000 were charged before a juvenile court53. The ratio of 0.84 indicates that 46.2% of the young people are diverted already on the prosecutorial level.

Table 11-1. Breakdown of prosecutorial and judicial case disposition with juvenile offenders (2001)*. Prosecutors54 Courts55 (a) diversion 154,525 (d) diversion 39,762 (b) charge 184,444 (e) conviction 96,675 (c) relation (a)(b) 0.84 (f) relation (d)(e) 0.41 * Formally prosecuted juveniles and young adults according to juvenile justice law. Diversions according to the Drug Offences Act not included.

52

Of these, 72,650 by non-intervening diversion according to art. 45 s.1 JGG (i.e., without any consequences), further 71,245 after an educational measure imposed by the prosecutor was fulfilled (art. 45 s.2 JGG), and some 10,630 combined with a disciplinary measure (order) imposed by the judge (art. 45 s.3 JGG). 53 Of these, 188,121 before the juvenile judge and 34,870 before the lay assessors court (both at the local court level), and further 1,359, i.e., the most serious cases, before the youth chamber (residing at the district courts). 54 The prosecutorial statistics provide also figures on the New Federal States. The total values for Germany including the New Federal States are: (a) 203,265; (b) 236,634; (c) 0.86. 55 Missings in the overall number of court cases as compared to the number of charges are due to young adults convicted according to general criminal law.

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On the court level the distribution is somewhat different. If we look at the judicial case disposition56, we can see that a further 29% of all youngsters who were charged and entered the court stage (i.e., 39,762 individuals) have been diverted at that level. Some 96,000, on the other hand, have been formally convicted. The ratio of diversions versus convictions here is 0.41. Notwithstanding the incompatibilities of the two statistics mentioned, one can get at least a rough estimate of the overall significance of diversion by a combined interpretation. If we take a look at them together (supposing the figures were comparable), the total number of diversions – (a) plus (d) – was 194,287. Based on such a comparative explanation we had significantly more diverted juveniles as compared to those who are formally charged and convicted – (e) –; the relation is exactly 2.0, that is two diversions per charge. In other words, one out of three juvenile offenders is prosecuted and formally sanctioned (punished) at the end57. Possibilities for VOM are available at the stages (a), (d) and (e). They can be imposed as measure of diversion or as a penalty or as a part of a penalty. Table 11-2 tracks the use of restorative measures for juvenile offenders within the judicial case disposition over the last 13 years, as compared to the total number of diversions, convictions and prison sentences. In addition, it can provide a short introduction into the system of juvenile corrections in Germany as well. The lines (1) and (2) are based upon the number of individuals referred to, whereas all other figures provide information about the number of measures imposed. These include multiple entries. Particularly the educational and disciplinary orders can be imposed either alone or combined with each other, and also combined with a suspended youth prison sentence. First of all we can observe that, as a general development, the number of convictions has been growing over the last years, whereas diversion through the courts is declining. Instead, more and more cases are diverted at the prosecutorial level already. Since 1996, when judicial diversion peaked with a total of more than 49,000 diversions, the relation between diversion and conviction has changed from 0.61 to 0.41 in 2001.

566

Unlike the prosecutor who has to charge any young adult without exception before a juvenile court, the court has the power to decide whether or not a young adult should be treated as a juvenile or as an adult. In the latter case, the young adult may be either diverted or convicted according to general criminal law. This is to explain why the number of juvenile cases dealt with by the courts is lower than the total of charges issued by the prosecutors. 57 As mentioned already, those young adults diverted according to adult law are not included in this fictitious comparison.

11. VOM with Youth Offenders in Europe Table 11-2. Judicial case disposition (diversions and formal sentences) with offenders in Germany (1989-2001)*. 1989 1990 1991 1992 1993 (1) diversion** 48,968 45,236 43,472 42,343 40,687 (2) conviction 84,951 77,274 72,728 71,839 72,664 (2a) relation (1)(2) 0.58 0.58 0.60 0.59 0.56 (3) youth prison 13,090 12,103 12,938 13,040 13,991 (3a) percentage (3)(2) 15.4% 15.7% 17.8% 18.2% 19.3% (4) educational measure*** 35,361 32,802 21,623 17,948 15,494 (5) disciplinary measure (art. 15 27,920 25,967 34,047 36,213 38,430 JGG) of these (5a) compensation 1,683 1,678 1,604 1,593 1,574 (art. 15 No. 1) 6.0% 6.5% ↑ 4.7% ↓ 4.4% ↓ 4.1% ↓ (5b) percentage 2.0% 2.2% 2.2% 2.2% 2.2% (5a)(2) (5c) apology 125 135 207 132 112 (art. 15 No. 2) 0.4% 0.5% ↑ 0.6% ↑ 0.4%↓ 0.3% ↓ (5d) percentage (5c)(2) 0.1% 0.2% 0.3% 0.2% 0.2%

241 juvenile 1994 41,696 71,965 0.58 13,998 19.4% 14,024 39,397 1,435 3.6% ↓ 2.0% 129 0.3% 0.2%

1995 1996 1997 1998 1999 2000 2001 (1) diversion** 46,428 49,214 47,329 43,211 41,478 41,403 39,762 (2) conviction 76,731 80,846 87,807 92,001 93,602 93,840 96,675 (2a) relation (1)(2) 0.61 0.61 0.54 0.47 0.44 0.44 0.41 (3) youth prison 13,880 15,146 16,399 17,220 17,645 17,753 17,722 18.1% 18.7% 18.7% 18.7% 18.9% 18.9% 18.3% (3a) percentage (3)(2) (4) educational measure*** 14,989 14,586 16,589 17,680 18,465 18,897 20,009 (5) disciplinary measure (art. 15 JGG) 42,899 45,712 49,707 52,881 54,843 55,910 58,829 of these (5a) compensation 1,466 1,457 1,668 1,823 1,973 2,224 2,572 3.4% ↓ 3.2%↓ 3.4% ↑ 3.4% 3.6% ↑ 4.0% ↑ 4.4% ↑ (art. 15 No. 1) (5b) percentage 1.9% 1.8% 1.9% 2.0% 2.1% 2.4% 2.7% (5a)(2) (5c) apology 108 111 127 152 131 119 144 (art. 15 No. 2) 0.3% 0.3% 0.3% 0.3% 0.2% ↓ 0.2% 0.2% (5d) percentage (5c)(2) 0.1% 0.1% 0.1% 0.2% 0.1% 0.1% 0.1% * All frequencies are taken from Statistisches Bundesamt (ed.), Strafverfolgung 1989 - 2001; all percentages based on private calculations. If changes from previous year: ↑ = increase, ↓ = decrease; constant percent values not explicitly indicated. ** All diversion decisions according to art. 47 JGG, including VOM. *** Educational orders including art. 10 no. 7 JGG (VOM).

The most significant increase can be found in the so-called disciplinary measures, which, in terms of their punitive character, rank below the youth prison. They are, in a certain way, the juvenile equivalent for fines, which

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are not available as a penalty in juvenile justice. And the percentage of youth prison sentences is rather stabile over the years58. VOM cases can be hidden in the overall figures in lines 1 (diversion) and 4 (educational measures) as well as in line 5 (disciplinary measures) of Table 11-2. Only the disciplinary measures imposed are further specified. The temporal development indicates that, slowly but surely, application of restorative measures is shifting from punitive to diversionary alternatives. If we take, for example, a look into the disciplinary measures we can observe that the total of compensation and apology orders from 1990 to 2001 increased from 1,813 to 2,716. On an absolute basis this is an increase by about 50%. In relation to the total of disciplinary measures, however, the percentage decreased from 9.9% to 4.6%. Moreover, the category of educational measures, which also includes a VOM option significantly, lost importance as a whole. Let us undertake a – fictitious – calculation based on the known facts and figures. Then one can come to the conclusion that the increase in the absolute number of mediation cases as discussed above59 must take place within the category of diversions. Based on the nationwide estimate of about 20,000 mediation cases in 2001, the following distribution might be realistic: two thirds of juvenile cases out of the total of 20,000 cases make up some 13,200 cases, minus 3,200 (2,716 restorative disciplinary measures plus some restorative educational measures60). The result is some 10,000 VOM cases that are probably “hidden” within the diversion category. We do not exactly know, however, how many of these cases were handled on the prosecutorial stage already and how many were later referred by the court61. According to cases recorded by the VOM statistics, ca. 79% were initiated during the investigative phase, about 15% in the pre-trial phase, 3% during the trial and 3% after the sentence62. All in all, the overall ratio is clear: about 3 cases of (diversionary) mediation versus 1 (punitive) VOM order. Translated into Table 11-1, the 10,000 diversionary cases belong either in field (a) or (d), and the remaining 3,200 punitive cases 588

Of the 17,772 youth prison sentences shown in line 3, some 11,168 were conditional sentences with probation. 59 See above, paragraph 1.3. 600 This is an estimate by the author made in view of the fact that the educational VOM alternative is highly controversial due to its compulsory character (see footnote 73). There is no indication at all that it is often applied. 61 The difference is of interest in light of the “historical” background that is more than just a temporal aspect: court diversion also means that a case originally was “not deemed suitable” for mediation and diversion by the prosecutor who filed a charge in order to bring that case to court and to get that particular juvenile punished. It was only the court that, later, came to a different conclusion. 62 Figures taken from Kerner and Hartmann (2003, p. 17).

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in field (e). This fictitious calculation is helpful in order to demonstrate that VOM, notwithstanding the increasing overall trend, is still marginal compared to the other forms of prosecutorial and judicial case disposition, be it in the field of diversion or in the field of punishment.

3.2

Types of VOM and conditions under which they can be applied

The variety of VOM possibilities in German law can be explained best in relation to the different procedural stages in which they can be applied. This is visualised in Figure 11-1 (see at the end of this chapter). First of all, it has to be mentioned that the German system provides no possibility for an expost elimination of punishability of a criminal act in the case of active repentance as it is available in Austrian criminal law63. Unlike in Austria, Italy, the Czech Republic or Slovenia, there is also no possibility for a material exemption from punishment in the case of mediation or other restorative action64. Due to the strict principle of legality there is no possibility to just drop cases, except within the procedural framework of diversion. From a systematic point of view, two different types of VOM can be differentiated: (i) mediation in its true sense, i.e., including a personal reconciliation process between victim and offender, conducted by a mediator, and (ii) other forms of restorative action, including voluntary reparation. The Juvenile Justice Act provides a legal definition of VOM according to which the offender has “to undertake efforts to reach a reconciliation settlement with the victim” (art. 10 s.1 no. 7 JGG). Hence, the law does not necessarily require a personal encounter of the parties. This is the same as for adult VOM. Both forms are principally weighted equal in German criminal law65. To make it visible the true or “classical” mediation alternatives have been framed in the figure. However, one has to keep in mind, that even in the context of those legal provisions, which explicitly refer to VOM, attempts to reach a settlement with the victim are sufficient. During the investigation phase the prosecutor is the head of the procedure. If she/he assesses a case to be suitable for mediation, she/he has the possibility either to refer the case to mediation before deciding to dismiss the case66 or to dismiss it immediately combined with an order to try to make 63

Art. 167 of the Austrian Criminal Code (Löschnig-Gspandl and Kilchling, 1997, pp. 63 et seq.). 64 For more details, see Kilchling (2002b). 65 For more details, see Kilchling (1996), Schöch (2000). 66 Art. 45 s.2 JGG.

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attempts towards reconciliation67. In the first case, successful mediation is the legal precondition for the dismissal, in the second case the prosecutorial decision is made before it comes to mediation. In addition, in the first case the prosecutor makes a referral whereas in the second case the mediation order is issued by a judge upon request of the prosecutor; as is the case with any judicial order there is no formal referral necessary. In practice however, most cases conducted according to this alternative are officially referred to VOM as well. A third possibility for dismissal applies in minor cases (nonintervening diversion)68. Mediation efforts, reparation and other restorative action undertaken prior to the prosecutorial decision can be assessed as an indicator for reduced culpability. In all three alternatives mentioned, the prosecutor can refrain from filing a charge (i.e., diversion). Once a charge is filed, procedural responsibility shifts to the court. During the pre-trial phase, the court has the same options for diversion as the prosecutor had before. The same applies even during the trial. If a judge during the court hearing, for example, after having heard the victim, comes to the conclusion that there is a chance for reconciliation, she/he can stop and postpone the trial while referring the case to mediation,69 issuing a mediation order,70 or assessing the young offender’s culpability as reduced due to the restorative efforts already made71. If this happens during the pretrial phase the legal consequence is that there will be no trial taking place; in the case of diversion during the court trial there will be no formal sentence. Also, when it comes to a formal conviction of the juvenile offender there are several options for VOM or other restorative actions as a sanction of its own or as part of a sanction. The less severe type of penalties are the socalled educational measures. The catalogue of such measures provided in the Code also includes the already mentioned order to undertake efforts to reach a settlement72. In light of its coercive character this punitive form of VOM that was introduced in 1990 is highly controversial. Critics point out that mediation must be based on a voluntary initiative and cannot be enforced in any way73. Next on the scale of sanction severity are the so-called disciplinary measures. Amongst other possibilities compensation and/or apology orders can be issued74. Although VOM is not explicitly mentioned, these orders are often carried out by assistance of a VOM scheme. Mediation, compensation or apology orders can, finally, also be imposed as 67

Art. 45 s.3 and art. 10 no.7 JGG. Art. 45 s.1 JGG and art. 153 StPO. 69 Art. 47 and art. 45 s.2 JGG. 70 Art. 47 and art. 45 s.3 and art. 10 no.7 JGG. 71 Art. 47 and art. 45 s.1 JGG and art. 153 StPO. 72 Art. 10 s.1 no.7 JGG. 73 Compare Eisenberg (2002, § 10 annotations 27 to 27b). 74 Art. 15 no.1 or 2 JGG. 68

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a condition for probation of a youth prison sentence75. In the case of noncompliance probation can be withdrawn. The same conditions apply during the execution phase for earlier release on parole76.

3.3

Reference to mediation in the German code of criminal procedure

Since 1998, art. 155a of the code of criminal procedure (for adults) provides that prosecutors and judges shall be aware of the possibilities of mediation at any stage of a proceeding, and shall refer to it wherever possible and adequate. However, with regard to the general priority of the Juvenile Justice Act over the code of criminal procedure it is unclear whether this norm has no direct effect in the procedure with juveniles. Nevertheless, with regard to its “appellative” function77 one can argue that the principle provided by the provision should be taken into consideration by the prosecutors and judges in the juvenile sector as well. This is particularly in light of the fact that the impact of VOM for juveniles is also considered in the RIJGG guidelines as mentioned above78.

3.4

Benefits, problems and disadvantages of the current legislation

As long as there is no exact statistical coverage of the application of the different provisions it is difficult to assess their real practical impact. Generally speaking, one might argue that the variety of legal options makes their application difficult. This seems particularly true in light of the fact that the instruments are overlapping and inconsistent in their legal conditions. It remains unclear, for example, why the legislature explicitly requires mediation in the context of an educational measure whereas paying compensation or apologising without a formal mediation process is sufficient in the context of a disciplinary measure, which, in its punitive character, is more severe. A disadvantage of this situation might be confusion – to the effect that prosecutors and judges refrain from applying these instruments. Moreover, research has shown that provisions are not rarely applied

75

Art. 23 and art. 10/15 JGG. Art. 57 and art. 23 and art. 10/15 JGG. 77 The provision was introduced in order to explicitly express the discontent of the legislator with the insufficient application of VOM by prosecutors and the judiciary. Compare the final report of the Commission for the reform of the German sanctioning system (2000), pp. 74 et seq. (available at www.bmj.bund.de/images/10365.pdf, in German only). 78 See above, footnotes 45 and 46. 76

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wrongly79. A common example is that compensation orders are issued even in cases that were referred to mediation and successfully finished. On the other hand, one might also argue that the variety of options is so wide that it provides the possibility for application in almost every case.

4.

VICTIM-OFFENDER MEDIATION IN PRACTICE

4.1

Organisational structure of VOM centres

As has been mentioned already, a variety of different institutions offer VOM. The most important ones are private NGOs on the one hand, and public or even State agencies on the other. The two most important institutions of the latter type are the Juvenile Court Aid Service80 and the Community Youth Welfare Office. The latter one is funded by the Federal States and the municipalities, whereas the monetary resources of the private NGOs are as various as their organisational background. They range from private means to budgets from churches or other institutions of public welfare, charities and, if they themselves are registered as public welfare institutions a variety of public subsidies as well including transaction fines. The service office for VOM (Servicebüro TOA) estimates that currently some 300 local institutions offer VOM. Due to the lack of an official registration of this private VOM “scene” no valid information exists, neither about their absolute number nor about their distribution over the country. The VOM statistics of 1999 include only 49 such institutions, a figure too low to break it down to a kind of regional or local distribution. To some degree, the representation of the public institutions is better covered, since either a Juvenile Court Aid Service or a Community Youth Welfare Office exists in any local jurisdiction; however, not all of them offer mediation. As a general trend, the latter ones seem to lose importance. According to the VOM statistics, the community offices made up 41% of all participating institutions in 1995; in 1999 they represented no more than 14% of all institutions. At the same time the percentage of private NGOs increased vice-versa from 55% to 78%. And the Juvenile Court Aid Service remained in the last position, although their share doubled from 4% to 8%81. All institutions mentioned are independent from each other, and they offer their services in competition with each other. Due to the lack of registration there is also no official information about the regional or even local VOM “density” available. Roughly speaking one can assume that the 79

See Kilchling (2000). The employees are social workers; see also above, footnote 14. 81 All figures taken from Kerner and Hartmann (2003, p. 6). 80

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density is significantly higher in urban than in rural areas. If there is more than one institution offering VOM at the same place, it lies within the discretion of the judicial authorities to decide to which of these institutions a particular case shall be referred. This decision is certainly dependent on the quality the VOM schemes offered. Apart from the organisational structure the VOM statistics further differentiate among three different types of how the VOM institutions conduct their work. 60% of all institutions are fully specialised. This means that they exclusively offer VOM. A further 29% are semi-specialised, that is, they carry out other services as well, without involving one person in more than one function per case. For example, a social worker with the Juvenile Court Aid who is involved in investigating the personal background of a young offender is excluded from mediation in the same case, and vice-versa. In integrated institutions, however, one person can be responsible for maintaining and mediating a client at the same time. Only 11% of the VOM institutions covered by the VOM statistics82 conduct their work according to this integrated model. Depending on the working type the number of cases settled per year varies significantly. Not surprisingly, specialised schemes deal with the greatest caseload. In 1999, their average number of cases was 97.3. Integrated institutions lie at the lower end: they resolve only 26.2 cases per year. And semi-specialised schemes had an annual number of 54.7 cases83. VOM schemes can also be differentiated according to the clients they are working with; 37% of them only accept juveniles (and young adults), another 30% exclusively deal with adults, and 33 % accept clients of any age84.

4.2

The communication processes between mediation centres and other institutions

Unlike the practice in some other countries, there is neither an institutionalised nor a regular interaction between mediators and judges. However, in the area of juvenile justice there are some model projects where all main institutions, in particular the police, the prosecutor and the court as well as the youth court assistance are located in one building. One prominent example is the so-called house of youth justice ((Haus des Jugendrechts) in Stuttgart85. Unlike in France, where the so-called maisons de justice 82

All figures taken from Kerner and Hartmann (2003, p. 7). Kerner and Hartmann (2003, p. 14). 84 Kerner and Hartmann (2003, p. 9). 855 For more details, see Feuerhelm (2000), Kilchling (2002); basic information is also available at www.polizei-stuttgart.de/projekt/hdj/hdjpraxis2002 (in German only). 83

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explicitly have penal mediation in their catalogue of services offered, a mediation scheme is neither directly affiliated with the Stuttgart project nor located in the same location. This has to do with the strict principle of autonomy and independence of VOM from the criminal justice system according to which mediators would never accept to work within a facility of prosecution authorities – not even in the context of such a pilot project. But there are weekly conferences, which aim at a pre-screening of all cases that might be suitable for mediation. It must again be pointed out that such a practice is not at all standard in Germany. As regards the official communication process between VOM institutions and the prosecution authorities, one must take into consideration the particular distribution of powers and responsibilities. Moreover, official communication is only compulsory in the case on an official referral of a case. The relevant situations are visualised in Figure 11-1 by double arrows. Roughly speaking, three stages can be differentiated. The first stage is the case selection, the third stage is the final (legal) case disposition; at both stages the relevant decisions lie in the exclusive responsibility of the public prosecutor and the judge. It is up to them to decide if a case is referred to mediation or not. Unlike in some other countries such as, in particular, Austria, the offender has no “right” to be referred to mediation; this decision lies within the discretion of the prosecutor or the judge and cannot be appealed. The second stage is the mediation itself. Here, the competence lies with the mediators. It should be pointed out that, notwithstanding the fact that mediation is carried out under the responsibility of the mediator, the parties involved keep their autonomy. Neither is the mediator entitled to give instructions to the parties (in formal terms, she/he invites the parties to participate) nor are the parties obliged to follow any of the communications or suggestions of the mediator who, formally speaking, “assists” the parties in their efforts to resolve their conflict. According to generic legal categories/terminology the mediator can be characterised (although this term is not officially used) as a “conflict consultant”. Accordingly, she/he has no formal decision making power (with the exception of his/her power to declare a case not suitable or non-resolvable). If one of the parties does not agree, there is no formal result and the case has to be given back to the prosecution. However, a second, independent case selection from the mediators point of view and according to the VOM standards takes place. As briefly mentioned already, the mediator can assess a case as not suitable for mediation in advance (i.e., when a case is referred), or a mediation can be broken off and the case can be given back if the mediator comes to the conclusion that the case shows to be not suitable during the mediation

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process, or shows not to be resolvable due to the statements or behaviour etc. of the parties. In terms of formal responsibility the mediator is autonomous and independent within his/her scope of action. This includes both administrative matters (e.g., organisation, timing, etc.) as well as substantive issues (i.e., the mediation procedure and its outcome). Regularly, she/he formulates a final assessment about the procedure and about the ‘outcome’ of the mediation (in terms such as, e.g., successful, partly successful, not successful, partly or totally unsolved, etc.). It further happens that she/he also includes a proposal, in which the final legal decision appears, from his/her perspective appropriate regarding the individual offender(s). However, the mediator is not entitled to give any official kind of “advice”. It is furthermore not provided that the mediator has to be informed about the legal outcome of a particular case once it has been filed back to the prosecutor or court86. All in all, the two areas work rather separately in Germany. Official communication in terms of formal co-operation is still low. Notwithstanding this substantive and organisational independence on VOM, research has uncovered the finding that prosecutors sometimes give more or less strict indication as to how a case should be handled by the mediator, for example, in terms of a minimum amount of compensation to be negotiated. Sometimes they express it more carefully as “expectation”. It further happens that a prosecutor tries to set out some influence on the administrative level by setting a time frame or time limit for the termination of the mediation87.

4.3

Categories and profiles of juvenile offences

As has been pointed out earlier there is no official record of mediation cases and their judicial outcome88. Accordingly, the points set by the outline cannot be answered in more detail. We can, however, provide some additional findings made available by the VOM statistics. As regards the types of offences, bodily injuries make up the majority of the settled cases. These offences have quite a stable share of approximately two thirds over the years. In 1999, their percentage was around 65%. This is, by the way, significantly more than in the area of mediation with adult offenders (with a percentage of less than 58%). Theft and fraud cases declined over the years; in 1993 and 1994 they made up about 14% whereas they represented only 7.6% of cases in 1999. Robbery and extortion, on the 866

As a consequence of this, the internal records of the mediation mostly provide no information about the legal outcome of the cases. Accordingly, the VOM statistics provide no such information. 87 See Kilchling (2002). 88 See above, paragraphs 1.3. and 3.1.

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other hand, increased from 8.7% to 12% – an indicator that the application of mediation in such serious cases is slowly growing. This is still different in the adult sector, where this most severe category remained without importance over the years89. The success rate is also dependent on the types of offences that were the subject of the mediation cases. It has been pointed out that the definition of success was under dispute in the pioneering years. In particular, those institutions or promoters who came from a more abolitionist approach argued that a mediation case can only be assessed successfully if criminal prosecution was dismissed without any further intervention90. This opinion could, however, not gain leadership. Meanwhile, there is more or less consent that the assessment of success has to be based solely on the result at the end of the mediation procedure. The final judicial outcome of the case is not a factor to be taken into account for the internal assessment of success. According to this definition, success includes all cases in which full or at least partial agreement could be reached. Based on this definition some 92% of all cases were successfully settled in 1999. With percentages between 91 and 94% this success rate was nearly the same from the beginning of the records in 1993. In juvenile cases it is somewhat higher than for mediation concerning adults where only about 82% of the cases have been settled with success. Broken down in the offence types, there are moderate differences as well91. Nearly all cases dealing with damage to property have been solved, whereas the success rate in cases of theft, fraud and bodily injuries lies around 90%; and for robberies it even reaches between 93 and 95%92. From the overall perspective of criminal justice, success can be understood in a broader sense. From the beginning, the discussion on restorative justice in general and mediation in particular argued with the specific educational impact of this approach. Accordingly, the hope for a positive impact on recidivism often has been pointed out. At present, there are several studies in progress but research in Germany still is not in the position to present reliable data on this issue. However, from those findings that are available already one can conclude that mediation has at least no negative effects on legal behaviour. Some data even indicates that moderate positive effects can be expected, although it has not been proven yet that this data is statistically significant93. 89

All figures taken from Kerner and Hartmann (2003, pp. 24 et seq.). For more details, see Kaiser (1987; 1996), Kilchling (1995). 91 These particular figures have been calculated on the basis of juvenile and adult cases in total. 92 All figures taken from Kerner and Hartmann (2003, pp. 68 et seq.). 93 For more details, see Dölling et al. (2002), Kerner (2002). 90

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Models, approaches, and theoretical framework of VOM

In the early 1990s, the service office for VOM (Servicebüro TOA) elaborated and published the so-called “VOM standards” (TOA-Standards); meanwhile they have been published in the 4th edition94. Although they only have recommendatory character these standards became the model for mediation practice in Germany. Without going into detail, a few principles shall be mentioned briefly. According to the first principle only suitable cases are accepted. To meet this requirement, three basic criteria must be met: i) existence (respectively participation) of a personal victim, ii) exclusion of bagatelle cases, iii) obligation of the offender to take responsibility, not necessarily in terms of a criminal offence but in terms of an incident. The central element of mediation is the personal reconciliation process. As a rule at least one personal meeting of the parties should be achieved. However, there are conflicts or situations in which a direct encounter seems inadequate, in particular with regard to the victim. In these situations indirect mediation can take place; this kind of procedure in which the mediator arranges the settlement through several separate contacts with the parties is sometimes referred to as “shuttle diplomacy”. In German practice this type of indirect mediation is referred to rather frequently. As a general trend, personal meetings can be reached more often in juvenile cases. In 1999, some 79.5% of all mediations in this sector included a personal meeting whereas 20.5% were conducted indirectly. In adult cases, the figures are 68.4% versus 31.6%. Surprisingly, in cases dealing with bodily injuries the rate of direct mediations is the highest at around 80%, and there is a similar rate for robberies (79.6%). In cases dealing with theft and fraud around 67%, and in cases of damage to property only some 42% of the settlements included a personal meeting95. Regularly, there is only one mediator in charge of conducting an individual mediation procedure. Unlike in some other countries, a further rule is that the offender is approached first. This practice was developed in order to protect the victim from emotions at an early moment when it is still unclear whether the offender is willing to participate or not.

94

At www.toa-servicebuero.de/infos/material/index.html the standards can be downloaded (in German only). 95 All figures taken from Kerner and Hartmann (2003, pp. 61 et seq.); the figures for the offence types have been calculated on the basis of juvenile and adult cases in total.

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4.5

Professional characteristics and job evaluation of mediators

The service office for VOM96 was created in order to work as a promoter of VOM and as a service provider for institutions, which are conducting mediation. Therefore it has no hierarchical function, and it is not entitled to conduct any kind of supervision over the local mediation schemes, which, as has been pointed out earlier, are totally independent. By means of the VOM standards and the courses offered the service office for VOM can only give recommendations. The selection of the personnel as well as the control of the professional standards lies in the exclusive power of the local schemes and institutions. In the pioneering years, mediation was conducted by professionals who came from different disciplines such as, in particular, social workers or social educationalists, who passed additional training courses in mediation offered by the service office for VOM97 or other institutions. Meanwhile, most of the newly hired persons are professional mediators with a certificate or diploma obtained at one of the colleges and universities mentioned in the introduction98, at least in specialised institutions. Recently a discussion came up as whether and to what extent lay mediators should also be involved. For different reasons, professionals and academics have been rather sceptical upon such a proposal.

5.

CONCLUSION

Since the beginnings of VOM in the mid 1980s, when just a few pilot projects were conducted that settled no more than just a few hundred cases, VOM has undergone a rapid growth in Germany. Meanwhile, there is wide consent about its positive impact on both the offender and the victim, in particular in the area of juvenile justice. Notwithstanding a significant increase in the annual case disposition to about 20,000 mediations, of these approximately 13,000 dealing with juveniles, the relative position of mediation as compared to the traditional criminal justice responses is still low. This is especially true in light of the fact that researchers estimate the potential of suitable cases to be much

96

The website can be visited at www.toa-servicebuero.de (in German only). The service office offers, e.g., a basic training course of 120 hours and a refresher course of 45 hours duration. 98 See above, paragraph 1.2. 97

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higher than the cases selected at present; the highest estimates in this context range between 16%99 and 20% of all offences registered by the police100. Any scientific evaluation and analysis of the practices and impact of VOM is significantly hindered by the lack of a valid statistical coverage of the application of the different legal alternatives. Only based on estimates one can suppose that the prosecutors and the judiciary deal with mediation in about 75% of cases in the context of diversion, whereas in approximately 25% of the cases mediation or some other form of restorative action is imposed in the form of a penalty. The legal framework of VOM is characterised by a great variety of different instruments. On the one hand, this has the advantage that at any stage of procedure, from the investigation stage until the execution of sentences and in any segment of criminal reaction and sanction, there is some alternative of VOM available. The disadvantage, on the other hand, is that the various instruments appear not clearly separated from each others and inconsistent in their legal conditions. It further contributes to the blurred picture, that in German criminal law “classical” mediation and other forms of reparation are, in principle, treated equally. These factors might affect application in a negative way. In regard to the mediation practice, the great variety of different schemes and institutions, which offer VOM, is striking. Unlike in countries with a centralised system such as, for example, Austria, several hundreds of private NGOs offer VOM in concurrence to a number of further public and State agencies. However, most of them conduct their work according to the VOM standards as recommended by the service office for VOM. These standards are more or less in accordance with the practice in other countries. Also the professional skills of the mediators are steadily improving. One remarkable difference to other countries, however, is that in Germany the offender is approached first. German mediation practice is further characterised by a relatively high number of cases that are settled by indirect mediation, that is, without a personal meeting. A final weak point within the German practice that is explicitly striking is that the official communication in terms of formal co-operation is still low. With the exception of just a few pilot projects, there is no institutionalised advance screening of probable cases. This absence of regular contacts between prosecutors and judiciary on the one side and mediators on the other is certainly a factor that contributes to a hesitance, for not to say reluctance, of many prosecution officials to refer more cases to mediation that they presently do.

99

Hartmann (1998, p. 207). Wandrey and Weitekamp (1998, p. 143).

100

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In conclusion it can be pointed out that the potential for VOM in Germany to date is still far from being fully realised.

REFERENCES Albrecht, H.-J., 2002, Ist das deutsche Jugendstrafrecht noch zeitgemäß? Gutachten D zum 64, Deutschen Juristentag, C.H. Beck, Berlin. Albrecht, H.-J., and Kilchling, M. (eds.), 2002, Jugendstrafrecht in Europa, edition iuscrim, Freiburg. Bannenberg, B., 1993, Wiedergutmachung in der Strafrechtspraxis. Eine empirischkriminologische Untersuchung von Täter-Opfer-Ausgleichsprojekten in der Bundesrepublik Deutschland, d Forum-Verlag, Bonn. Bannenberg, B., and Uhlmann, P., 1998, Die Konzeption des Täter-Opfer-Ausgleichs in Wissenschaft und Kriminalpolitik, in: Täter-Opfer-Ausgleich in Deutschland. Bestandsaufnahme und Perspektiven, Bundesministerium der Justiz, ed., Forum-Verlag, Bonn, pp. 1-47. Bannenberg, B., 2000, Victim-offender mediation in Germany, in: Victim-Offender Mediation in Europe – Making Restorative Justice Work, European Forum for Victim-Offender Mediation and Restorative Justice, ed., Leuven University Press, Leuven, pp. 251-279. Baumann, J. et al. (Arbeitskreis AE), 1992, Alternativ-Entwurf Wiedergutmachung (AEWGM), C.H. Beck, München. Böttcher, R., 1994, Täter-Opfer-Ausgleich. Eine kritische Zwischenbilanz bisheriger Praxiserfahrungen und Forschungsergebnisse, Bewährungshilfe (BewHi), 41:45 et seq. Bundesministerium der Justiz (ed.), 1988, Schadenswiedergutmachung im Kriminalrecht, Forum-Verlag, Bonn. Bundesministerium der Justiz (ed.), 1998, Täter-Opfer-Ausgleich in Deutschland. Bestandsaufnahme und Perspektiven, Forum-Verlag, Bonn. Dölling, D. et al., 1998, Täter-Opfer-Ausgleich – Eine Chance für Opfer und Täter durch einen neuen Weg im Umgang mit Kriminalität, Forum-Verlag, Bonn. Dölling, D., Hartmann, A., and Traulsen, M., 2002, Legalbewährung nach Täter-OpferAusgleich im Jugendstrafrecht, Monatsschrift für Kriminologie und Strafrechtsreform (MschrKrim), 85:185-193. Dölling, D., and Hartmann, A., 2000, Täter-Opfer-Ausgleich im Erwachsenenstrafrecht bei den Staatsanwaltschaften Nürnberg-Fürth und Aschaffenburg, DBH Materialien, 45, Köln. Eisenberg, U., 2002, Jugendgerichtsgesetz, 9th edition, C.H. Beck, München. Franke, U., 2003, Die Rechtsprechung des BGH zum Täter-Opfer-Ausgleich, Neue Zeitschrift für Strafrecht (NStZ), 23:410 et seq. Feuerhelm, W., 2000, Neue Wege im Jugendstrafverfahren – das Pilotprojekt “ Haus des Jugendrechts in Stuttgart Bad Cannstadt, DVJJ-Journal, 139 et seq. Haft, F., and Schlieffen, K. (eds.), 2002, Handbuch Mediation, C.H. Beck, München. Hartmann, A., 1996, Die Entwicklung des Täter-Opfer-Ausgleichs im Spiegel der Bundesweiten TOA-Statistik, DBH-Materialien, 31, Köln. Hartmann, A., 1997, Forschungskonzept der Bundesweiten TOA-Statistik, in: Zehn Jahre Täter-Opfer-Ausgleich und Konfliktschlichtung, E. Hassemer, E. Marks and K. Meyer, eds., Forum-Verlag, Bonn, p. 413 et seq. Hartmann, A., and Kilchling, M., 1998, The Development of Victim/Offender Mediation in the German Juvenile Justice System from the Legal and Criminological Point of View, in:

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Restorative Justice for Juveniles, L. Walgrave, ed., Leuven University Press, Leuven, pp. 261-282. Hartmann, A., and Stroezel, H., 1998, Die Bundesweite TOA-Statistik, in: Täter-OpferAusgleich in Deutschland. Bestandsaufnahme und Perspektiven, Bundesministerium der Justiz, ed., Forum-Verlag, Bonn, p. 149 et seq. Hartmann, U., 1998, Staatsanwaltschaft und Täter-Opfer-Ausgleich. Eine empirische Analyse zu Anspruch und Wirklichkeit, Nomos, Baden-Baden. Kaiser, G., 1987, Abolitionismus – Alternative zu Strafrecht?, in: Festschrift für K. Lackner, de Gruyter, Berlin, p. 1027 et seq. Kaiser, G., 1994, Täter-Opfer-Ausgleich nach dem SPD-Entwurf eines Gesetzes zur Reform des strafrechtlichen Sanktionensystems, Zeitschrift für Rechtspolitik (ZRP), 27:314 et seq. Kaiser, G., 1996, Kriminologie, 3rd edition, C.F. Müller, Heidelberg. Karliczek, K.-M., 2000, Ergebnisse der quantitativen Untersuchung im Rahmen der Begleitforschung zum Täter-Opfer-Ausgleich in Brandenburg und Sachsen-Anhalt, in: Täter-Opfer-Ausgleich – Beiträge zur Theorie, Empirie und Praxis, G. Gutsche and D. Rössner, eds., Forum-Verlag, Mönchengladbach, pp. 52-71. Kerner, H.-J., 2002, Mediation beim Täter-Opfer-Ausgleich, in: Handbuch Mediation, F. Haft and K. Schlieffen, eds., C.H. Beck, München, pp. 1252-1274. Kerner, H.-J., and Hartmann, A., 2003, Täter-Opfer-Ausgleich in der Entwicklung; www.bmj.bund.de/enid/b90fea4cf60253b1a6387888b1026c10,55a304092d09/66.html and www.toa-servicebuero.de/index.php?id=166. Kilchling, M., 1995, Opferinteressen und Strafverfolgung, edition iuscrim, Freiburg. Kilchling, M., 1996, Aktuelle Perspektiven für Täter-Opfer-Ausgleich und Wiedergutmachung im Erwachsenenstrafrecht. Eine kritische Würdigung der bisherigen höchstrichterlichen Rechtsprechung zu § 46a StGB aus viktimologischer Sicht, Neue Zeitschrift für Strafrecht (NStZ), 16:309-317. Kilchling, M., 2000, TOA-E versus ATA-E – Empirische Befunde zur Praxis des TäterOpfer-Ausgleichs, in: Täterbehandlung und neue Sanktionsformen, J.-M. Jehle, ed., Forum-Verlag, Mönchengladbach, pp. 295-321. Kilchling, M., 2002a, Opferschutz und der Strafanspruch des Staates – ein Widerspruch?, Neue Zeitschrift für Strafrecht (NStZ), 22:57-63. Kilchling, M., 2002b,Vergleichende Perspektiven, in: Jugendstrafrecht in Europa, H.-J. Albrecht and M. Kilchling, eds., edition iuscrim, Freiburg, pp. 475-522. Kilchling, M., and Löschnig-Gspandl, M., 2000, Legal and Practical Perspectives on Victim/Offender Mediation in Austria and Germany, International Review of Victimology, 7:305-332. Löschnig-Gspandl, M., 2002, Jugendstrafrecht in Österreich, in: Jugendstrafrecht in Europa, H.-J. Albrecht and M. Kilchling, eds., edition iuscrim, Freiburg, pp. 269-302. Löschnig-Gspandl, M., and Kilchling, M., 1997, Victim/Offender Mediation and Victim Compensation in Austria and Germany Stocktaking and Perspectives for Future Research, European Journal of Crime, Criminal Law and Criminal Justice, 5:58-78. Löschnig-Gspandl, M., and Kilchling, M., 1999, Täter-Opfer-Ausgleich und Wiedergutmachung im allgemeinen Strafrecht von Deutschland und Österreich – Konzeptualisierung einer vergleichenden Implementations- und Evaluationsforschung, in: Forschung zu Kriminalität und Kriminalitätskontrolle am Max-Planck-Institut, H.-J. Albrecht, ed., edition iuscrim, Freiburg, pp. 243-290. Meyer-Goßner, L., 2003, Strafprozessordnung, 46th edition, C.H. Beck, München. Pelikan, C., 2000, Victim-offender mediation in Austria, in: Victim-Offender Mediation in Europe – Making Restorative Justice Work, European Forum for Victim-Offender Mediation and Restorative Justice, ed., Leuven University Press, Leuven, pp. 125-152.

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Reuber, S., and Rössner, D., 2003, Sammlung der Länderrichtlinien zum Täter-OpferAusgleich mit einer vergleichenden Analyse, DBH-Materialien, 49, Köln. Rössner, D., 2000a, Mediation als Element der strafrechtlichen Sozialkontrolle, in: Die Stellung des Opfers im Strafrechtssystem, B. Schünemann and M.D. Dubber, eds., Heymanns, Köln. Rössner, D., 2000b, Ergebnisse und Defizite der aktuellen TOA Begleitforschung –Rechtliche und empirische Aspekte, in: Täter-Opfer-Ausgleich – Beiträge zur Theorie, Empirie und Praxis, G. Gutsche and D. Rössner, eds., Forum-Verlag, Mönchengladbach, pp. 7-40. Schöch, H., 2000, Täter-Opfer-Ausgleich und Schadenswiedergutmachung gemäß § 46a StGB, 50 Jahre Bundesgerichtshof, f Band 4, C.H. Beck, München, pp. 111-120. Steffens, R., 1999, Wiedergutmachung und Täter-Opfer-Ausgleich im Jugend- und Erwachsenenstrafrecht in den neuen Bundesländern, Forum-Verlag, Mönchengladbach. Walther, S., 1997, Idee und Praxis der Mediation im künftigen Recht: marginal oder radikal? (Tagungsbericht), Juristenzeitung (JZ), 52:1110-1112. Walther, S., 2000, Reparation in the German criminal justice system: what is, and what remains to be done, International Review of Victimology, 7:265-280. Wandrey, M., and Weitekamp, E., 1998, Die organisatorische Umsetzung des Täter-OpferAusgleichs in der Bundesrepublik Deutschland eine vorläufige Einschätzung der Entwicklung im Zeitraum von 1989 bis 1995, in: Täter-Opfer-Ausgleich in Deutschland. Bestandsaufnahme und Perspektiven, Bundesministerium der Justiz, ed., Forum-Verlag, Bonn. Wegener, H., 2000, Der Täter-Opfer-Ausgleich in Sachsen-Anhalt, in: Täter-Opfer-Ausgleich – Beiträge zur Theorie, Empirie und Praxis, G. Gutsche and D. Rössner, eds., ForumVerlag, Mönchengladbach, pp. 183-198.

investigation

charge

§ 47 & § 45 s.3 & § 10 no.7 JGG: Æ no trial / no sentence Æ mediation order

47 & § 45 s.1 JGG & § 153 StPO: Æ iff reduced culpability Æno trial / no sentence

§ 45 s.3 & § 10 no.7 J GG: Æ no charge Æ mediation order

§ 45 s.1 JGG & § 153 StPO: Æ iff reduced culpability Æ no charge

Æ iff compensation or mediation or at least serious efforts Æ no trial / no sentence

§ 23 & § 10 JGG: Æ probation Æ mediation order § 23 & § 15 JGG: Æ probation Æ compensation/apology order

§ 15 no. 1 JGG: Æ compensation order § 15 no. 2 JGG: Æ apology order ('disciplinany measure')

Æ earlier release on parole Æ mediation order or compensation order or apology order (youth prison only)

§ 57 & § 23 & § 10 no. 7 (or § 15 no.1. or no 2) JGG:

execution

§ 10 no. 7 JGG: Æ undertaking efforts to reach a settlement ('educational measure')

court trial

formal sentence

Figure 11-1. Legal possibilities for mediation and other restorative actionn in their procedural framework.

only; JGG = Juvenile Justice Act; StPO = Code of A Criminal Prodedure. formal referral; pprocedural decision depends uupon (positive) final report (assessment) of VOM center. no formal referral rrequired; decision not nnecessarily depending upon a certain mediation outcome.

opening decision for trial pre-trial phase

no crime, § 45 s.2 JGG: Æ iff compensation or mediation no evidence: or at least serious efforts Æ no prosecution Æ no charge * For juvenile offenders

event

authorities

Chapter 12 CHANCE OF VICTIM-OFFENDER MEDIATION IN HUNGARY Maria Herczog -

1.

INTRODUCTION

In general, mediation conceived as a peaceful method of conflict resolution and problem solving is a recent phenomenon in Hungary. Historically, the “Conciliation Hearing”1 in divorce proceedings was the first quasi-mediation2 method. Instead of reconciliation and compensation the theoretical background of the conciliation hearing was the unacceptability of divorce. The judge was obliged to try to achieve peace making of the couple to convince them not to divorce. It was partly non-professional and not in conjunction with the rules of classical mediation As a special form of mediation, “Health Mediation” came into force in 2000. Health mediation is held between the patient and the health service provider to find a peaceful solution to a problem in relation to the health services (like failure to enforce a patient’s right for information). An appointed representative of the patients based in every hospital moderates this mediation. In January 2004 “Child Welfare Mediation” was introduced. This mediation focuses only on the relations between child and non-custodial parents (grandparents and other entitled persons). Public Guardianship Authority has the right to use mediation if entitled partners are unable to manage agreement on date, frequency or type of keeping contact with the

1 2

BékítĘĘ tárgyalás. Since 1952 (No. 4/1952 Family Law Act).

259 A. Mestitz and S. Ghetti (eds.), Victim-Offender Mediation with Youth Offenders in Europe, 259-273. © 2005 Springer. Printed in the Netherlands.

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child. Until now, we have no information from the practical application of this mediation, neither from the frequency, nor from the success of the application. Since 2002, a new Act on Mediation (No. 55/2002) has described the rules of “Civil Mediation”3 and the general characteristics and conditions (like education, recording, functioning) of mediators. After the political transition in 1989, the accelerated economic development involved increasing conflicts among the actors of the market economy. The legal procedures were slow, expensive and incalculable for international companies, which explains why arbitrage and mediation is widespread among corporations (at present approximately 70% of conflicts based on a contract between corporations or individuals are arranged by arbitrage or mediation). Presently, more than 819 active and trained mediators are working in the field of labour, family, health, education and community conflicts. In criminal law, similar challenges were originated by the democratic transition, though in criminal law the increasing number of crimes led to strict criminal regulations and stabilized the State monopoly in criminal justice. However, the strong public pressure on the policy makers and law enforcement bodies has made it impossible until now to introduce alternative methods. Those implementing legislation, notable authorities, judges, prosecutors and the police also share this resistance. Within the past 15 years, however, VOM and other RJ methods have been slowly spreading, thanks to the work of many academics, researchers and university professors who have been writing about western practices and translating foreign articles about mediation. In addition, some NGOs like Family Child Youth Association introduced Real Justice in Hungary, or Community Service Foundation Hungary, which established the first school training program based on restorative practices (Kökönyi and Negrea, 2000). At the moment, Victim-Offender Mediation (VOM) is not an official process in Hungary either for adult offenders, or for juveniles, but some NGOs and some professionals from the social and judicial field have started to investigate alternatives to judicial proceedings such as educational and rehabilitation approaches, in cases involving juveniles or child delinquents. In October of 1999, Paul McCold and Ted Wachtel from Pennsylvania (USA), conducted the first training course and two Hungarian professionals (a lawyer and a psychologist) spent months with the Community Service Foundation schools in Bethlehem, Pennsylvania, to learn and practice the method of Real Justice (Herczog, 2003). For a short period of time after this experience, a new practice was introduced in one of the detention centres for boys at Aszod. Specifically, 3

Közvetítés.

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newly sentenced young offenders were asked to write and send a letter to their victim, if they wished. They could have even taken part, at least in principle, in a conference thereby meeting their victim(s) and the victim’s supporters. In addition, two law faculties, in Miskolc, and Pécs, introduced a special course on mediation and restorative practices such as the Police Academy in Budapest in 2001. Further, some NGOs4 are currently attempting to introduce mediation methods in high schools and juvenile prisons (e.g., victim-offender dialogue, performing experiences of juveniles in high schools, circles). The Family, Child, Youth Association has been offering courses and offering help with VOM mostly at schools (Földes, 2002). The Government put together a National Crime Prevention Strategy approved by parliament in 2004. The core of this strategy involves crimes being redefined as conflicts between victims and offenders in close connection with current Hungarian social, economical and political circumstances. One of the main proposals of the National Strategy is to establish an alternative to the judiciary, an alternative in which the parties in conflict, especially young offenders and victims themselves, take an active part in the process of conflict resolution, reparation and healing. The National Strategy introduces the definition of restorative justice5 into the Hungarian legal system, gives attention to the juveniles as a special target group for the crime prevention, and mentions VOM for the first time ever in a legal document although not a law. Based on the National Crime Prevention Strategy, the next step of reform would be the introduction of VOM, especially for juveniles in accordance with the EU requirements. In October 2004 the European Forum for Victim-Offender Mediation and Restorative Justice Conference was held in Budapest and was co-organised by the above-mentioned Hungarian NGOs and the National Institute of Criminology. The conference provided a wealth of information and an opportunity to those interested in Hungary to get learn more about restorative justice and international practices. The juvenile justice system in Hungary has not been changed for a long time. In fact, no major development in this field has taken place since the beginning of the twentieth century when it was a very advanced approach for that era. Few of the rules of international and UN agreements have been implemented so far. On the one hand in Hungary there has been no special attention to juvenile delinquency and on the other, along with the major social and political transition (1989–1990), a changing and somewhat 4

E.g., “Conflict resolution face-to-face” in the high-school Zold Kakas by Family, Child, Youth Priority Association (this program was the first in Hungary to use restorative justice and the conference model for conflict resolution in a secondary school). 5 Helyreállító igazságszolgáltatás.

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decreasing degree of attention has been paid to prevention of the rapidly increasing youth problems. Children and young people have become the victims of the changes in many ways. The first legislation on child protection after 96 years was introduced in November 1997, restructuring the child welfare system and focusing on prevention and home-based care. Compared to other countries in the region, the situation has been much more favourable but for several reasons many of these advantages can easily be lost: the media attention (limited primarily to crimes and scandals that have a news value) rather than focusing on possible solutions, prevention, or professional responsibility, is influencing very strongly the public opinion, provoking strong feelings and little sympathy for the offenders3. This is a way of serving the demand articulated by the public that are not properly informed and are not interested in learning more in depth about problems of those involved.

2.

LEGISLATION CONCERNING YOUNG OFFENDERS

2.1

Lack of legislation on VOM

The current Hungarian penal code4 (BüntetĘ Ę törvénykönyv, hereafter BTK), was adopted by Parliament in 1978. It has been amended several times, particularly after the political transition in 1989-1990. Unlike many western countries, Hungary does not have a separate act for young offenders. Instead, special provisions for juveniles are described in chapter 7 of BTK. In accordance with the current provisions, juvenile delinquents include individuals aged between 14 and 18 (i.e., has not reached the 18th birthday when committing a crime). A juvenile delinquent may be subject to punishment or to other legal measures as defined within the penal code. The primary intent of both forms of sanction is correction. 3

In cases involving brutal criminal offences by young persons, the public is not interested in the complete story and background, without exploring the possible influence and outcome of such actions. Instead, it blames the parents – and/or the child – and wants long-term incarceration. Such as a taxi driver’s killing by two teenage girls, the murder of an 11year-old child by her classmates or the shooting of an abuser father by a 14-year-old girl. A 14-year-old girl who killed her 11-year-old classmate in a school with special needs got a 6 and half-year prison sentence in May, 2003. 4 According to the code, a crime is a voluntary or involuntary act (in cases where the latter is penalized by law), which is dangerous for society and which by law involves a punishment. Article 37 of the code stipulates the objective of penalization for all delinquents is “… with a view to the protection of society, preventing the perpetrator or other persons from committing another offence.”

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Penal substantive law includes a number of alleviating provisions in the case of juvenile delinquents5. For instance, all juvenile sentences must be served in a juvenile penitentiary institution6; in connection with banishment, BTK7 prescribes that a juvenile who lives in an appropriate family may not be banished from the town/village in which his or her family resides. The court may rule that the juvenile delinquent should be sent to a reformatory institution,8 when it is believed necessary in the interests of the young person’s corrective education. Such a ruling may prescribe a term of one to three years. In cases where the term is longer than one year, it is possible for the court to temporarily release the juvenile delinquent. When a young offender comes to the attention of the police, their actions are regulated by the code of criminal procedures provided for by the Act 19 of 1998. Specifically, chapter 13 describes the most important differences between how juveniles and adults should be treated. Some of the key aspects include: a defence attorney is obliged to participate in procedures against juvenile delinquents9; and pre-trial confinement of a juvenile delinquent is justified only in exceptional circumstances and it must take place in specially designed correction institutions if possible. Juvenile delinquents should be separated from adults during such confinement. The media and the public are allowed to attend juvenile proceedings, unless the court rules otherwise. For criminal procedures, the Minister of Interior’s ruling regarding investigation10 is followed. Under 14, the status of a child excludes criminal liability; therefore in such instances investigation must be denied or stopped by the police and the local authority should be notified so that it can initiate protective measures through the child welfare services. In juvenile criminal procedures the suspect’s age, character, intellectual development, and living conditions are significant factors, so the legal representative of the juvenile delinquent and, if needed, a psychologist or another expert, may be present at the hearing. An assessment has to be made on the conditions of the child’s

5

The provisions are grounded in the neo-classical school of criminological thought, which provides for judicial discretion, minimum and maximum sentences, as well as the principle of extenuating circumstances. 6 The average length of incarceration is one-and-half years. Their educational value has not been properly assessed so far. 7 According to articles 111 and 116. 8 Correctional education takes place in the reformatory institutions. The reformatories, under the auspices of the Ministry of Children, Youth and Sport, perform their tasks in relative isolation. Therefore, it is not surprising that they are able to provide only marginal resocialization services and provide only a very limited chance of not going back to the unchanged harmful environment. 9 Article 298. 10 Precept 40 of 1987 of the Minister of Interior.

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upbringing and a case survey must be prepared so that a detailed picture of the young person’s personality, family and living conditions is provided. Due to the excessive workload of the police and courts, many investigations and trials last years. It is not infrequent for two or three years to elapse between the offence and the court ruling; therefore, any educational impact involved in the ruling is hardly dissipated. Moreover, the juvenile delinquent who is 18 years of age and over can no longer be confined in a reformatory institution. In 1995, spiralling juvenile delinquency rates, combined with the failures of a cumbersome judiciary, helped to bring about changes through the passing of Act 61. The act also represents an attempt to align Hungarian standards of juvenile justice with those of our European neighbours. Some of the key elements include: imprisonment of a delinquent young person is only allowed if the objective of punishment cannot be attained in any other way; the term of confinement to a reformatory institution is no longer indefinite, and the duration of pre-trial confinement should be considered as part thereof; pre-trial confinement beyond the basic conditions stipulated by law can only be justified by the extreme severity of the offence; juvenile delinquents should preferably be confined to a reformatory institution prior to their trial. In cases involving imprisonment of less than five years, the prosecutor may suspend prosecution for a probationary period of one to two years in order to give the juvenile delinquent the chance to develop in the right direction. The measures represent another (legal) step towards embracing a more paternal/welfare model of juvenile justice in Hungary.

2.2

Problems and disadvantages of the current legislation

One of the most important problems of the current legislation is the lack of a separate act for juvenile delinquents. Having a separate act for juvenile delinquents would imply making a sharp distinction between adults and youngsters (see Table 12-1). Doing so would make it possible to honour all the legal obligations stipulated and acknowledged under the international regulations (e.g., Beijing Rules). Undertaking such changes would, at least, help to clarify how to handle youths under the age of 14, what kinds of preventive and care activities should be taken, and by whom and how. The fear is growing as more and more children between 12 and 14 years of age are committing crimes without any consequences and programs being provided for them. In addition, guidelines for the handling of young adults (aged 18-21) could be more clearly defined. Alternatively, however, handling the problems of adults and juveniles together could help spur reforms (e.g.,

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VOM) and increase the role of alternative sanctions. A notable lack of separation means that in Hungary both adults and juveniles are treated the same way in accordance with the penal code, even though young offenders need a “milder” approach11. Another major problem is how to face proper handling of juvenile justice cases concerning probation, suspension of confinement, parole, and provisional release from a correctional institution, which involves a probation officer commissioned by the court. Table 12-1. Sanctions against young offenders in 2003. Sanctions N % Probation 4,314 69.6 Suspended sentence 1,410 22.7 472 7.6 Reformatory institute Total 6,196 100 Source: Unified Statistics of the Prosecution and the Police (2003).

Aside from a lack of specific training, there has been much debate within the judiciary about the place and role of probation. There are several different models of probation and there are several approaches in Hungary as well. The most problematic weakness of the former system was eliminated with the introduction of the new Child Protection Law12 in November 1997, and since then the employer of the probation officer has been the county guardianship office. Unfortunately, their work has not been fulfilling expectations and therefore juvenile probation officers have moved partly together with the probation officers working with adults under the supervision of the Ministry of Justice. Thus, they are not fully integrated with the probation services of the local government and the court. The probation officers’ formalized protocols, regulated by professional standards, are under preparation just like their different forms of co-operation with family social workers, local child welfare services and the schools. Their respective responsibilities, perspectives and hierarchy are not yet well established. Even if one of the parties is in favour of cooperation, this cannot be forced, so the problem tends to go unaddressed and their responsibility remains unfulfilled. Another disadvantage to efficient probation is the low number of probation officers, such as social service providers. They have a limited scope of activity and often lack the cooperation skills to manage this 11

Additionally, young offenders should be separated from adults, as the underlying causes of their offences are deemed to be different. Aggressive and brutal crimes, that undermine the system of values of the society and the stability of the legal system, should be handled entirely differently from other types of crimes. Here the principal task is to protect the integrity of the legal system and its underlying values. 12 UN Recommendation No. 45/110.

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complex problem. Consequently, probation is often arbitrary and dependent on the persons involved. Family assistance is generally not part of probation planning and is extended only in a limited way even if other problems (e.g., social and child safety) are involved in a case. Another problem has occurred since the transition. There are very limited tools that can be used because of the few workplaces, accommodation and other rehabilitation facilities for young persons who are mostly with low education and in difficult circumstances. In January 2003, in the interest of following “Tokyo rules”13 on wider application and execution of non-detention sanctions, Hungary built up the new organisation of probation officers – National Probation Service – that will provide possibilities for probation officers to use mediation in penal cases. Their professional framework started operating on 1 July 2003. The question of co-operation and response also stems from the problems with current legislation. In essence, contacts with the local social system are arbitrary and lack designed professional standards and procedures so far. The division of duties and responsibilities is not yet clear either. Juvenile delinquents living in out-of-home care are often “forgotten” by their former protection institution and their local county child protection institute. Since the introduction of the child protection legislation in November 1997, all newly formed local child welfare services are supposed to provide the needed assistance and care to both the offender and his or her family. From an organisational and professional perspective it has been questioned whether the correctional institutions belong to the Ministry of Health, Welfare and Family Affairs but it is argued that it should refer to the Ministry of Justice or the Ministry of Education. The argument revolves around who should be responsible for the welfare of juvenile delinquents, whether problems can be considered to be social problems rather than criminal. Finally, what about the response of society and the State? How will the Government choose to respond to the growing sense of insecurity and anger towards young as well as adult offenders? What are the adequate answers: a more punitive system or one providing alternative measures and helping people understand the advantages of this approach? Evidently, adhering to the alternative approach would only be possible if policy makers and politicians are convinced and the media response is in favour of such a new way of thinking. Another old debate relates to the suitability of juvenile delinquency, as the approach among child protection professionals and those working in the justice system can differ hugely. In Hungary the influence of the last decades Western debates on the possible ways of treating offenders differently, have had no space because of the political system. Today, we 13

No. 1183/2002. (X.31) Government Order.

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suffer from not having participated in those arguments as well as from not having observed failed or successful experiments or conducted research on their outcomes. According to the National Criminal Prevention Program the Government recognized in the National Strategy of crime prevention the important roles of families, child welfare system, schools, other educational institutes, NGOs, local governments, police and all other actors in local coordination. However, the weak operation of the signalling and referral system and inadequate cooperation among the different institutions of child welfare, social, public health, jurisdiction and police are causing a lot of difficulties. The system of information distribution is not working smoothly within the child welfare service provision: the network of child welfare practitioners – still mostly teachers and not social workers – in schools is not working properly, lacking the needed counselling skills and referral ability and capacity for children at risk. The Act on child welfare and guardian’s administration6 regulates forms of cooperation such as case conferences but these forms of cooperation are just starting to be developed.

3.

YOUTH DELINQUENCY

In order to have a basis of comparison for juvenile offence rates, it is necessary to provide a sense of crime trends in the general population (Table 12-2). There are two possible explanations for the delinquency rate changes from 1975 to 1993. First, the number of those who committed multiple delinquencies has increased, and secondly the efficiency of detection may have decreased, thereby enabling the commission of multiple offences. The majority of juvenile crimes, however, are property-related offences (68.9% of all recorded juvenile offences in 200314). There are no data on the damage caused by those offences to have a clearer picture. The rest are crimes against public order (20.9% in 2003), against individuals (5.6% in 2003) and traffic ( 1.2 % in 2003) (Vavró, 2003). Although representing a comparatively small percentage, there have been a growing number of serious crimes, gang-related, and crimes involving adults offending with a juvenile. A rapidly growing problem is drug-related crime15.

6

Act No. 31/1997, last modified by Act No. 9/2002. This figure was 70.6 % in 2000, 68.5 % in 2001 and 71.1% in 2002. (Unified Statistics of the Prosecution and the Police, 2003) 15 4.1% in 2003 compared with 0.12% in 1995. Today the passive or active drug experience becomes the part of juveniles’ socialization. According to the results of a survey made in spring 2002, 30% of second year high school students tried some kind of drug. 14

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Table 12-2. Crime trends. Year offences perpetrators 1975 120,880 72,049 1993 400,935 122,621 2001 465,694 125,000 2002 443,221 121,885 2003 431,512 118,145 Source: Unified Statistics of the Prosecution and the Police (2003).

juvenile offenders 7,067 15,001 11,631 11,689 10,473

The number of juvenile delinquents increased from 7,258 in 1975 to 14,321 in 1995, dropping back to 11,540 in 1999 and decreasing to 10,473 in 2003 (Vavró, 2003). This is a significantly higher increase than that of the number of adult perpetrators. And while the proportionate rate of increase when compared to the entire delinquent population was not as extreme16, the absolute numbers could be much higher, as the rate of detection of juvenile delinquents dropped significantly between 1975 and 200217. The number of juvenile delinquents per 10,000 juvenile inhabitants was 161 in 1985 and increased to 205 in 2003 (Vavró, 2003). The differing rate of increase is due, in part, to the fact that the increase followed the general demographic upswing, that peaked as a result of two successive demographic interventions (in 1950 to 1954 and 1972 to 1976). Consequently, the juvenile population peaked at the turn of the 1980s and the early 1990s. This demographic asymmetry has its primary impact in the high number of young adult delinquents. The number of offences committed prior to the age of criminal responsibility is a possible indication of the future trend of juvenile delinquency (Table 12-3). Table 12-3. Number of child delinquents (aged below 14) in the last decades. Year N 1975 2,557 1992 4,492 1993 4,128 1996 3,689 1999 4,133 2001 3,730 2003 3,553 Source: Unified statistics of the prosecution and the police (2003).

Most of the young offenders tend to carry out their crimes with other young offenders (47 04% in 2003). As evidenced in most countries, the most 16 17

From 10.1% in 1975 to 12.2% in 1993 and 8.7% in 1999 (Vavró, 2003). Research shows that the earlier time of committing the first crime is, the larger the chance to repeat the crime or to develop a criminal lifestyle (Vavró, 2003). According to official data in 2002, 41% of juveniles commit the first crime at 14–15 years old (this rate was 38% in 1997).

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common offences committed by young persons are property-related. Since 1990 property-related offences have constituted approximately 70%18 of all offences committed by young offenders, that is, a 138.8% increase between 1975 and 1995. Similarly, the number of teenage delinquents involved in fighting and rioting had more than doubled between 1990 and 1996. The other major delinquent activity areas include theft and burglary. In recent years, 60 to 70 young persons have been charged with assault-related offences19. Offences against persons have been increasing in recent years. In addition, there are more and more criminal cases involving children together with adults and/or young persons. Altogether 7,737 such cases have been recognized above and beyond the ones committed by the children on their own, of which 71.99% were against property and 2.63% sexual abuse cases. Misdemeanour proceedings are initiated against 16,000 juvenile annually. Child welfare authorities make decisions in half of misdemeanour procedures of juveniles and all misdemeanour or crime committed by delinquent young persons. The unlawful conduct of juveniles and children appears also in the records of the public guardianship authority. In these records the number of children at risk significantly decreased statistically (420,000 in 1997 and 249,000 in 2001), especially in the category of children at risk for financial reasons (340,000 in 1997 and 166,000 in 2001). The number of children at risk because of environmental (family problems) reasons stagnated after a temporary decrease in the period 1997 2001 (this can be questioned, as it appears to be a normal fluctuation) and finally, an increasing number of children appear in records because of their conduct (48,000 in 1997, 38,000 in 1998 and 50,000 in 2001). The reasons behind these changes are partly due to the use of different definitions and measures of at-risk situations in different local government agencies across the country. It is unlikely that such a change would have occurred so quickly, especially as we consider that children have been under severe strain since the transition. What we know for sure is that with the introduction of the new legislation on child protection, local accountability and responsibility has become a little bit more realistic, so that it is acknowledged that many children are at risk and in need of protection. Thus, more local services and better quality services should be offered. On the other hand, this kind of decrease in the statistical figures on children at risk can be used for political purposes as well. In fact, the introduction of the new child protection legislation followed the disclosure of such data. Whether or not these numbers show it, it must be stressed that 1/3 of children in Hungary are living under the poverty level and are entitled 18 19

71.31% of juvenile delinquents committed property-related crimes in 2003. 6.57 % of juveniles committed assault-realted offences in 2003.

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to additional family support. In many parts of the country there is a lack of adequate service provision and there are multiple risks for many young persons living in the disadvantaged areas, or belonging to the Roma gypsy community, lacking adequate access to a better future, education and work. These are risk factors and from this respect alternative conflict resolution and VOM would be excellent tools to enable individuals to express themselves, learning about others’ and their own feelings and contributing to the community life with their activities, as well such as raising public awareness on their life conditions and perspectives.

4.

THE PRACTICE OF MEDIATION

Since October 2002 an experimental project has started with an alternative school using the Real Justice – restorative justice – (Herczog, 2003) method for hard to handle youths most of whom had problems in their schools, whose drop-out was probable or had actually happened. It is working on the basis of contracting district authorities and referrals from schools. Those in conflict with the law and under investigation cannot be part of the program as a diversion. There are also some programs offering family and divorce mediation. Since the legislation on mediation has come into operation in 2002, at least in principle, those willing to divorce should be asked whether they have tried mediation, but most of the lawyers and judges have no idea about the new option and its possible forms. Some foundations are offering mediation in custody-related issues, but mostly in conflicts stemming from child custody or visitation disputes. This is a voluntary mediation option run by psychologists and social workers within the child welfare services locally and it is free of charge. In addition, some lawyers are planning to start business mediation as well, but there are no experiences on its success so far. According to the Mediation Act (mentioned in the Introduction), the definition of civil mediation is: “a conflict solving, debate work out process, in which the target is creating an agreement based on the consensus of the parties interested in the debate and involving a neutral third party”. The “neutral third party” is the mediator who has academic qualifications and five years experiences as a mediator. A mediator could also be a company in addition to an individual person, if the Ministry of Justice put his/her/its name on the official register of mediators. The clients can keep contact with a mediator on the website of the Ministry of Justice or (personally) in the regional offices of the mediators. There has been a National Mediation Association formed 3 years ago as a national umbrella organisation that is planning to work together with the

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members (mediators, mediation organisations, NGOs), but there are many tensions and conflicts partly due to the unknown expectations and narrow market. So far, there are 900 registered mediators in Hungary without any obligation of formal training or procedure and monitoring, evaluation and outcome measurement. The only requirement is reporting the cases mediated to the Ministry of Justice to licensed mediators.

5.

CONCLUSIONS

Being a full member of the EU, meeting the requirements of the Council of Europe20 and signing a number of international agreements, Hungary has undertaken adherence to, and promulgation of, all the contracts and conventions adopted by other Western democracies21. However, there is still a significant discrepancy between the provisions of these agreements and Hungarian legal and professional practice. Nonetheless, on the whole, the most up-to-date and widely accepted trend is to increase the necessity of legal intervention. The challenge to develop sensitivity to human dignity and embrace the basic liberties of the individual will require the adoption of special laws and procedures. In addition, it will require the establishment of special authorities and institutions that favour problem management that excludes court procedure. It seems to be a very slow process despite what numerous foreign research studies have shown (Pelikan, 2000). Should Hungary be able to embrace these, its model of juvenile justice would be more in keeping with the UN recommendation that all countries adopt a social welfare model, and the Council of Europe recommendation on the introduction of mediation. There are several Central and Eastern European countries that have already adopted legislation on restorative justice or VOM like the Czech Republic, Estonia, Moldova, Poland, Russia and Ukraine22. Unfortunately, because of the economic recession and transformation in the wake of the political changeover, many of the above objectives will remain conceptual dreams for a long time. Our “prematurely born welfare state” has exceeded the load-bearing capacity of the Hungarian economic situation since the 1990s. Furthermore, since the media tend to focus on shaping public opinion by offering biased coverage that concentrates 20

21

22

No. 20/2000. Recommendations of the European Council insist on the importance of the early psycho-social intervention. According to the recommendation Hungary, as a member country, must follow the principles of intervention and proportionality and guarantee to avoid stigmatization and discrimination in the procedures. Bejing Rules, Riyadh Guidelines, UN Rules regarding the support of juvenile delinquents in confinement, Convention on the Rights of the Child. For more information see www.euforumrj.org.

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primarily on the scandalous aspect of youth’s behaviour, the public is not likely to be sympathetic to the plight of young people. These circumstances are further undermined by the social problems that have emerged after the introduction of the market economy. Overall, it is questionable when and to what extent the justice administration and the parliament will be prepared to implement fully-fledged reform. This chapter has also shown that delinquency in Hungary is closely linked in most instances to social and cultural status (e.g., education, housing, income, and lifestyle). This is particularly evident with the Roma (gypsy) population, but it has also been found to be true of most povertystricken areas throughout the country. Since 1988 delinquency rates have increased and the incidence of violent crime has grown most dramatically. Gönczöl reports that when compared to a half-dozen westernised countries, Hungary offered “the least to the youth in terms of long-term prospects” (1994: 13). On the other hand, the juveniles are not only offenders but also victims. Annually, 12,141 minors (4.98% of all the victims) become victims: in 2002 the victim of every fifth burglary, 12.7% of afflicted persons by violent crimes and 60% of afflicted persons by sex offences was juvenile. The number of known children victims in 2002 was 3,785 (1.55% of total victims: 243,582): 594 children were victims of crimes against the person; crimes against property victimized 1,756 children and 4.52% of persons afflicted by violent crimes were children. The extremely high number of recognized child victims was among sex offences: 40.47% (329) of all victims were under 14-years-old in this category. On the other hand, 3,553 children participated in a crime in 2003 and the majority (81.28%) of delinquent children committed crimes against property23. The high number of criminal cases where children are involved together with adults or young persons indicates the importance of crime prevention and consequently, of adequate responses to child delinquency. In the present system, child welfare services are adopted for delinquent children’s cases and the sanctions focus on education, reparation (e.g. reformatory) and insurance of children’s needs. Based on the regulations (exactly the lack of regulation) within Law on the Protection of Children, the easiest way to introduce VOM is in the field of child delinquency, and school-based mediation, because Hungary can adopt that method of mediation without any amendment.

23

The rate of violent crimes committed by children was 8.5% in 2003.

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REFERENCES Barabás, A. T., 1998, Conciliation between the offender and the victim – rational or naive?, in: Modernization of criminal procedure forced by European harmonisation and increasing criminality, II National Criminology Conference, MKT, Budapest. Barinkai, Z., Herczog, M., and Lovas, Z., 2003, Mediation in the international practices, in: Medáció, HVG Orac, Budapest, pp. 67-115. Fellegi, B., 2002, Practice of restorative justice in high schools, Család, gyermek, ifjúság, 1:44-49. Földes, P., 2002, Once again from the practice of Real Justice, Család, gyermek, ifjúság, 2:3134. Gönczöl, K., 1994, Criminal Policy, Criminal Prevention, Szociális Szakképzés Könyvtára, ELTE, Budapest. Görgényi, I., 2000, Old and new paradigm: restorative justice, Anniversary Edition – Imre Békés, School of law, ELTE, Budapest, pp, 151-168. Herczog, M., 2003, Compensation and Conciliation, Család Gyermek Ifjúság, Budapest. Herczog, M., 2001, Child Protection Handbook, KJK, Budapest, pp. 254-258. Herczog, M., and GyĘrfi, E., 2002, Methods of Restorative Justice – Alternative Sanctions, Gyermekvédelmi Hírlevél, KJK, 1:1-8. Kerezsi, K., 2002, Alternative Sanctions, Kriminológiai Tanulmányok, 39, OKRI, Budapest, pp. 20-35. Kökönyi, M., and Negrea, V., 2000, Possibilities in the rehabilitation of victim-offender relationship, Család, gyermek, ifjúság, 1:17-26. Lovas, Z., and Herczog, M., 1999, Mediation – the painless conflict management, Múzsák, Budapest. Pelikan, C., 2002, Victim-Offender Mediation in Domestic Violence Cases. A Comparison of the effects of Criminal Law Intervention: the Penal Process and Mediation, Doing Qualitative Research, Forum Qualitative Social Research, 3(1). Vavró, I., 2003, Juvenile Delinquents – 2002, Belügyi Szemle, 1:3-7. Public Prosecutor’s Department, 2002, Information memorandum on child and youth delinquency 2002, Budapest (unpublished). Vígh, J., 1991, Debate on the future of justice in the European Commission, Magyar Jog, 3:172-175.

Chapter 13 VICTIM-OFFENDER MEDIATION AND CONFERENCING WITH JUVENILE OFFENDERS IN THE NETHERLANDS Ytje Minke Hokwerda and Ido Weijers -

1.

INTRODUCTION

The position of victims of crime is well regulated in many respects in the Netherlands, but approaches such as Victim-Offender Mediation (VOM) and conferencing are still in their infancy. Community mediation practices1 started in 1996 and are mostly used to prevent neighbourhood conflicts that could result in an offence. There now are 40 projects running nationwide, which are being financed by the Ministry of Justice, local authorities and housing corporations. Since 1996, there has been an increase in non-judicial peer-mediation in schools, mainly in large cities (Leest, 2003). VOM is mainly being used with adult offenders. One of these projects is called “settlement” (dading). Following this experiment which started in 1990, the Ministry of Justice decided to start a second experiment in 1998 (Wolthuis, 2000). The experimental projects were to be run in six court districts, initiated by three different organisations: (1) the Public Prosecution Service, (2) the Legal Assistance Bureau2 and (3) neighbourhood justice offices3 (Spapens and Rebel, 1999). The past tense is used because most of

1

2

3

Community mediation can be defined as conflict resolution between neighbours (by people from the neighbourhood) (Blad, 2002). In Dutch: Bureau voor Rechtshulp. The Legal Assistance Bureau is for people who seek information or advise on legal matters (www.bureaurechtshulp.nl). In Dutch: Justitie in de buurt, JIB-bureau. The first neighbourhood justice offices were founded and financed by the Ministry of Justice in some of the larger cities in 1997. Now

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these projects are no longer running. Only petty offences were considered for these projects and if VOM went well the cases did not have to go through a criminal procedure. A recent study shows that at the moment only nine of the 27 neighbourhood justice offices engage in any form of mediation (Slump, Van Aalst and Bacchus, 2003). The most widely used Restorative Justice (RJ) programme applied in cases involving juvenile offenders in the Netherlands is conferencing. Use of VOM in juvenile cases is quite marginal. The Halt Bureaus (see section 2) have brought in a number of activities for dealing with more minor offences that have a restorative justice flavour. Only two local experiments practice VOM exclusively with juveniles and there is one project that does not distinguish between offenders based on their age. The first conferencing project started in 1998 and there are now at least twelve projects. Most of these projects operate according to the Real Justice model, which originally comes from the United States (Hokwerda, 2004). However, other conferencing models are also found that have more in common with the Belgian approach of Restorative Group Conferencing (in Dutch called Hergo), and which are indirectly inspired by the Family Group Conferencing model from New Zealand (Hudson et al 1996; Morris and Maxwell 2001). These local experiments have been initiated by different organisations, such as: schools, a youth detention centre, the probation service for juveniles, the Child Care and Protection Board, the Public Prosecution Service, the police and the Halt Bureaus. Depending on which organisation is operating the conferencing, its position with respect to the criminal law procedure varies considerably. This paper concentrates on conferencing projects, as they are the dominant form of restorative justice in the Netherlands, and six out of the seven projects that participated in our research were using some form of conferencing4.

4

there are about 25 neighbourhood justice offices (Terpstra and Bakker, 2003).The main goals of these offices are to make citizens feel safer in their neighbourhoods and to make justice work faster by bringing different relevant organisations closer together and paying more attention to and hopefully solving local problems (http://www. ministerievanjustitie.nl/b_organ/jib/about_index.htm). We evaluated seven projects for the Ministry of Justice in 2002-2004: Friesland Real Justice, Drenthe Real Justice, Zwolle Real Justice, Utrecht RJ, Tilburg RJ, The Hague Real Justice and Zeeland Restorative Mediation. For the findings of the research, see Hokwerda (2004). Parts of this chapter are derived from that research report.

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LEGISLATION AND LEGAL PROVISIONS FOR THE APPLICATION OF VOM AND CONFERENCING

When we look at the legal context, there are at least three relevant aspects. Two of them concern Dutch juvenile criminal law and one concerns the position of the victim. The Netherlands has had a separate criminal justice system for juveniles since 1901, which applies to young people aged 12 to 18. The youth justice system was reformed in 1995. The most important changes were: the legal status of the juvenile was strengthened; sentences became more severe; the youth justice system and the adult system were brought closer together; and youth protection was separated from youth justice. The aspects that are most relevant to the subject of this chapter, however, remained unchanged.

2.1

Separate criminal procedures

The first aspect concerns procedures, in particular, the rules that trials of juveniles, unlike general criminal trials, have to take place behind closed doors; that a counsel is officially appointed by the court; and that the young person must appear at the hearing. Since 1921 there have also been separate juvenile court judges (who act to a large extent on the advice of the family supervision officer). As a consequence of this and the procedural rules just mentioned, different court practices have developed. We have described these earlier as ‘dialogic’ (Weijers and Hokwerda, 2003; Weijers, 2004). As is customary in the continental, inquisitorial tradition, the juvenile judge leads the session, he asks the questions and invites the other parties, the prosecutor and the counsel, to speak. However, it is the dialogue between the judge and the young person that is central to the hearing throughout. The young person does not appear in the marginal position of “witness”, as is the case in the Anglo-Saxon adversarial tradition, but usually takes an active part in the hearing. An important consequence of this is that the judge can, and regularly does, engage the juvenile in discussion, about issues such as his or her motives for the offence and its effects on the victim. For instance extracts from letters from victims are often read out in court.

2.2

Separate punishments

As far as the substantive side is concerned, it should first be noted that the general tenets of criminal law, such as causality, illegality, intent and guilt, do apply to juvenile suspects. Dutch juvenile criminal law does,

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however, have separate punishments and different levels of dealing with juvenile offenders depending on the severity and nature of the offence. Petty offences can be dealt with by the police or the police can decide, with the permission of the offender, to send the case to the Halt Bureau. The Halt Bureau is a justice department, set up after experiments started in 1979, that deals with juveniles who have committed minor offences. The word Haltt is an abbreviation for Het ALTernatief (The Alternative), which refers to so-called alternative sanctions. These may consist of various types educational penalties, such as courses in anger management, social skills and victim awareness, and some form of task as reparation for the harm done. A requirement to write a letter of apology is also common. Up to a maximum of 20 hours of such tasks may be imposed. The other cases will be referred to the prosecutor. If the offence is of such a nature that it would be sentenced with a sanction that would take 20 to 40 hours to complete or a fine up to 2,250 euro (art. 77f Penal Code) the case can be dealt with by the prosecutor. The juvenile also has to consent to this. When the police refer a case to the prosecutor, the Child Care and Protection Board5 must always be notified. In most cases, the Child Care and Protection Board will perform a basic inquiry into the juvenile’s circumstances and, when necessary, a more extensive investigation will be carried out. When the prosecutor is dealing with the case, she/he has to consult the Child Care and Protection Board (about the offender’s personality and his life circumstances) if the nature of the case requires a sentence for more than 20 hours or a fine in excess of 115 euro, if the juvenile is younger than 15 years old, or in the presence of specific aspects of the offender’s personal life (for example truancy). Of course, the Child Care and Protection Board also has to be consulted if the case will be sent to court and a report will be part of the dossier on the juvenile. In the cases that are dealt with by the prosecutor, work may still be imposed as reparation for the harm done. Some form of compensation is also regularly included as an aspect of the conditions for not having to appear before the court; in other words, the juvenile will not have to go to court provided he fulfils the conditions imposed by the prosecutor (De Jonge and Van der Linden, 2004). Finally, in cases in which the offender does not want to take the opportunity to have the case dealt with out of court in a Halt procedure or with the prosecutor (i.e., diversion), or where the offence is more serious, the juvenile court will be directly involved. The main sentences a judge in the juvenile court can impose are: community service, an educational sentence, a 5

The Child Care and Protection Board ((Raad voor de Kinderbescherming) is part of the justice department and plays an important role in the juvenile judicial system. The main tasks of the Board are: (1) protection of children, (2) divorce cases, and (3) criminal law in cases with juvenile offenders (www.kinderbescherming.nl).

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fine or a custodial sentence. A custodial sentence for juveniles aged 12 to 16 years can be from 1 day to 12 months, and for juveniles aged 16 to 18 years, from 1 day to 24 months. Fines range from 2 to 2,250 euro (Bruins, 2002). The community service imposed by the juvenile court judge may involve work for the community or work as a form of reparation to the victim and the court may also impose monetary compensation to be paid to the victim.

2.3

The position of the victim

In the previous (sub)sections we have discussed the separate criminal procedures and separate punishments in Dutch criminal law. This brings us to the last point that we want to mention in connection with the relevant legal context: how the position of the victim has developed. Dutch policy on the victims of crimes compares favourably with that of many other European countries. Comparative research has shown that the Netherlands has gone furthest in implementing the guidelines of the 1985 Recommendation on the Position of Victims in the Framework of Criminal Law and Procedure of the Council of Europe and has not been content merely to pay lip service to victims’ rights on paper (Brienen and Hoegen, 2000). This outcome needs to be seen against the background of the emancipation of the victim that started in the Netherlands thirty years ago. The setting up of women’s refuges in the 1970s and early experiments with victim support in the 1980s started the trend. In the early days, victim support mainly consisted of groups of people who had experienced similar misfortunes. These became more professional as the years went by, developing into serious pressure groups, such as the Association of Road Accident Victims, the Association for the Parents of Murdered Children and the Association for the Relatives of Missing Persons, while Victim Support Netherlands operates in a coordinating and supporting role. When the new Civil Code came into effect in 1992, a switch occurred in the concept of liability, based on fault to liability based on risk. Traffic law in the Netherlands, in particular, has increasingly developed in the direction of victim-based law6. In civil cases, Dutch courts have also increasingly been taking the side of the victim in recent years (Heslinga, 2001). The 1992 Victim Assistance Act (Wet Terwee), which had been in preparation since the mid-1980s, brought about the most significant improvements in the criminal law for victims, by increasing the opportunities for them to be involved in the criminal proceedings. This law gave victims the right to submit a claim for compensation in the criminal 6

In the new traffic law, the motorist is in principle held liable with respect to weaker road users such as pedestrians and cyclists, unless he can prove that an accident was caused by circumstances beyond his control.

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proceedings, without this being subject to a maximum limit as it used to be. While victims used to have to appear in court in person to claim compensation, now they can do it in writing, without having to face the offender in court. This law also gave judges the power to impose a compensation measure. If the offender fails to pay, he will be sentenced to detention, but in 80 to 90% of cases the victims do get their money (Heslinga, 2001). As well as material compensation, emotional damages can also be awarded to victims. The Victim Assistance Act requires the police and lawyers to treat victims properly and, where necessary, to refer them to Victim Support, to provide them with information about the progress of the criminal investigation and to promote the interests of victims in compensation claims. Some public prosecutor’s offices hold special third-party consulting hours in which the judicial officers help victims by checking whether their claims have been drawn up properly and victims can almost always go to the public prosecutor’s office to obtain information about the progress of their case. Since 1994, the option to take a class-action suit (where several people take legal action together) in response to a disaster has also been available in The Netherlands. Since 2000, we have also been experimenting with written Victim Impact Statements, which have been evaluated by researchers (Kool and Moerings, 2001; Kool, Moerings and Zandbergen, 2002). Victims reported all the consequences that they had experienced as a result of the crime. In late 2002, Parliament voted for a draft bill to give victims the right to be heard in court, albeit limited to crimes punishable by eight years’ imprisonment or more and crimes against public decency, threats and abuse. A significant development in relation to the use of RJ in criminal cases concerns the position adopted by the Board of Procurators General in 2002. The position of the Public Prosecution Service on policy relating to RJ practices in criminal cases means that the relationship between criminal law and RJ is determined by the following rules (Berghuis, 2002: 29): – “Provided that voluntariness and transparency are guaranteed, the public prosecutor and the judge will be willing to take the outcomes of restorative justice into account. Agreements cannot be made in advance about the way this will be implemented. – It may be decided that for a defined category of cases, specified time and resources will be made available to achieve restorative justice, if it is clear that this has a chance of success. – The Public Prosecution Service does not adopt a leading and organising role for itself in restorative justice. It is willing to enter into working arrangements with organisations in which it has sufficient confidence in their professional practice.”

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ORGANISATIONAL STRUCTURE OF VOM AND CONFERENCING CENTRES

This last remark is illustrative for the Dutch situation. What stands out about Dutch practice is the diversity of organisations putting RJ into practice. There is currently no umbrella organisation in the Netherlands organising RJ at a national or regional level but projects are often run in an inter-institutional grouping with partner organisations. The reason for this probably lies in the fact that the projects are quite young and have developed rather spontaneously on different locations, from different organisations. Whenever possible this will involve linking up to existing inter-institutional groupings. In other cases, kindred organisations will be invited to become partners in the initiative. Now, we will describe VOM projects, then conferencing projects, and we will end this section with a description of the positioning of RJ with respect to the criminal law.

3.1

Victim-Offender Mediation

Three projects offering VOM in juvenile criminal cases are considered here: The Hague and Den Bosch VOM7, VOM from a neighbourhood justice office in Rotterdam and Zeeland VOM. 3.1.1

The Hague project

The experiment in The Hague started in 1997 and was financed by the Ministry of Justice until January 1, 2004. In 2001 the town of Den Bosch became the second location for this experiment. There is no set age limit for the offenders. In practice, however, practically all offenders are adults, only two or three have been juveniles (Frijns, 2003). The experiment was initiated by the probation service and the victim support service. Cases can be referred to the project by the probation service, victim support or lawyers (Wolthuis, 2000). Remarkably, most requests, about 85%, come from offenders through the probation service (Frijns, 2003). There is an average of 50 intakes per year in both locations. The experiment has four mediators in total who all work part-time. They also use other mediators in the country who have been trained by the Netherlands Mediation Institute (NMI), a Dutch training centre for mediators (see section 6.2 below). Preparing a case can take up to a couple of years because the cases they deal with usually involve serious crimes (Frijns, 2003). Because of the serious nature of the offences, there is a strong preference for 7

In Dutch: Herstelbemiddeling Den Haag en Den Bosch.

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organising the mediation session after the offender has been convicted and, therefore, outside the justice system. 3.1.2

The Rotterdam project

The second project started from a neighbourhood justice office in Rotterdam, which organises VOM exclusively with juvenile offenders. This project started in 2002 and is being financed by the Ministry of Justice. There are two mediators who have also been trained by the NMI (like the mediators in the VOM project in The Hague and Den Bosch). Referrals are made by a youth secretary8 at the office of the Public Prosecution Service but, apart from that, the mediation procedure is not connected with the criminal justice procedure, and the cases that are considered generally involve petty offences. In total only approximately ten cases have been dealt with so far, six of which have resulted in a direct meeting between the victim and the offender9. 3.1.3

The Zeeland project

The third project is one of the seven projects that formed the subject of our research: Zeeland Restorative Mediation. This local experiment started in the province of Zeeland in 2001. The experiment was initiated by the probation service for juveniles and was financed partly by the Ministry of Justice and partly by the local provincial government. There was one mediator working 32 hours per week on this experiment. The project did not model itself on existing RJ practices but aimed to create its own model, which is why the mediator was not trained at any of the training centres in our country. In principle, practically all types of offences could have been considered appropriate for mediation here. The only relevant factor was the seriousness of the offence. The offence had to be more serious than the offences that can be dealt with in a Halt procedure (see section 2). Referrals could be made by the police, the probation service for juveniles, the Child Care and Protection Board, the Victim Support Office or people could file a request for themselves. It was considered preferable that the referral was made as soon as possible following the offence commission.

8 9

In Dutch: jeugdsecretaris. With thanks to the people of the neighbourhood justice office in Rotterdam who gave us this information over the phone (2003).

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Conferencing

3.2.1

Organisation and referral system

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The six conferencing projects10 that formed the subject of our research obtained their funding from different sources. Some of them were financed, or part financed, by the Ministry of Justice. Some were subsidised by local and provincial authorities. In some cases, the organisation that took the initiative to set up the project released funds (and/or time) for the project. The six projects were initiated by different organisations: schools, Halt Bureau, Regional Youth Care Office, Child Care and Protection Board, police and Public Prosecution Service (Table 13-1). Most of the projects made use of network partners to refer cases. The other projects arranged this largely or entirely themselves. Table 13-1 shows which organisations set up the projects and the organisations that referred cases.

Table 13-1. Organisations involved in the conferencing projects and referral network. Projects* Started by Cases referred by FRJ Halt Bureau Police Halt Bureau, police, Community Work Foundation DRJ Youth Care Office Police, Child Care and Protection Board, public prosecutor’s office, Victim Support Office, Youth Care Office, local authority ZRJ Child Care and Protection Board Child Care and Protection Board (internal), police, Victim Support Office, Youth Care Office URJ Public Prosecution Service Police + court police secretary + Child Care and Protection Board Schools School, schools liaison officer (police) THRJ Police Police, “Youth at Risk” consultative forum TRJ * FRJ Friesland Real Justice, DRJ Drenthe Real Justice, ZRJ Zwolle Real Justice, URJ Utrecht Restorative Justice, THRJ The Hague Real Justice, TRJ Tilburg Restorative Justice.

The police are one of the organisations that can refer cases to all these projects. Apart from the police, a number of different organisations are mentioned. Different projects operate different referral procedures. The most direct method of referral is that in which a mediator’s daily responsibility includes searching for cases that may be suitable for a conference, as is the practice at Friesland Halt and the Child Care and Protection Board in Zwolle.

10

Friesland Real Justice, Drenthe Real Justice, Zwolle Real Justice The Hague Real Justice, Utrecht RJ and Tilburg RJ.

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At Friesland Halt, holding a conference is one of the options for dealing with a case within the framework of a Halt settlement. The cases are referred to Halt by the police or the Public Prosecution Service and then examined to see whether holding a conference would be appropriate in each case. Alternatively, the police and the Community Work Foundation may specifically refer cases for a conference. The police are currently working on setting up an inter-institutional grouping in the province and a new pilot was started in January 2002. In this pilot, the police will be the most important referral agent and the police mediator may actively search for suitable cases from the police records. The two investigation officers running the project for the Child Care and Protection Board in Zwolle search for cases that come to their attention as investigation officers that could be suitable for a conference. Fellow investigation officers can also refer cases to them. Arrangements have also been made with the police, Victim Support and the Youth Care Office, which can also refer cases to the project. Schools in The Hague refer cases for a conference, mainly internally or through the police school liaison officer who visits various schools in The Hague on a daily basis. In Drenthe, cases can be referred by the police, the Child Care and Protection Board, the public prosecutor’s office (usually on the advice of the Child Care and Protection Board), Victim Support, Youth Care Office and officially also by the local authority. In practice, by far the majority of cases come from the police and the public prosecutor’s office. In Utrecht, a referral system has been set up that involves testing the suitability of the case at a number of stages. The scheme used (Utrecht Restorative Justice, 2001) starts with the reporting officer who, when it is a clear-cut case11 involving an offender who is admitting guilt and a victim, refers the case as a potential case for a conference to the assistant public prosecutor, who in turn contacts the court police secretary. The court police secretary examines the case to verify that it meets the formal criterion that it must be punishable with 20-to-40 hours community service or an out-ofcourt settlement up to a maximum of 2,250 euro12. Next, the case is referred to the Child Care and Protection Board which screens the offender to see if he or she is a suitable person to take part. If the offender is found to be fit to take part, the Child Care and Protection Board brings in the mediator. The RJ project in Tilburg is embedded in the existing “Youth at Risk” consultative forum. The Child Care and Protection Board, Youth Probation, Youth Care Office, school attendance officers, local authority, Halt Bureau, Public Prosecution Service and the police are all represented on this forum. 11 12

A clear-cut case is one that can be proved without any problems. According to art. 77f of the penal code.

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At their meetings they consult on the best way to deal with a young offender. One of the options is to take part in the RJ project. The forum looks at the paperwork on the case to see whether it meets a number of conditions, before referring the case to the project. 3.2.2

Mediators

The number of hours, if any, reserved for a mediator to spend on the project varies greatly among the six projects. The number of mediators also varies within projects and within the regions in which they operate. The regions in which the projects are operating vary in size from one town to two provinces. These are three important factors that should be taken into account when looking at the capacity of the projects to organise conferences. The number of mediators assigned to each project, the time they have available and the organisations providing them are shown in Table 13-2. Table 13-2. Number and activity of mediators by project. Organisations that provide mediators Projects Mediators Time available N FRJ 3 1 x 36 hours per Halt Bureau, police, Community Work 4 week Foundation DRJ 3 8 hours per week Youth Protection, Halt Bureau ZRJ 2 Child Care and Protection Board URJ 2 16 hours per week Youth Probation THRJ 7 Schools, school liaison officers 2 TRJ 1 1 x 16 hours per Youth Care Office, police 7 week

In the project in Zwolle and the project run by the Halt Bureau in Friesland, there is no set number of hours for mediators, but during the pilot period at the Halt Bureau, a number of hours were reserved for each conference that would have to take place. In The Hague too, no set number of hours are reserved and the same applies to the conference leaders at the project in Tilburg. When a conference is organised, they look to see who is in the position of attending. In addition to the eight mediators, this project has also appointed an operational coordinator. The preparation is done by this person, unlike the other projects in which it is done by the person who is to chair the conference, and the operational coordinator is also responsible for general organisation. The operational coordinator is assigned to the project 16 hours a week. The three mediators at the project in Drenthe each have eight hours a week to spend on the project and the two mediators in Utrecht each have 16

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hours. Thirty-two hours are reserved for the mediator and project leader of the project in Friesland started by the police. Clearly there are major differences among the projects in terms of the number of hours that mediators can spend on them and the number of mediators that the projects have at their disposal. In the case of three projects, two figures are given for the number of mediators. In Friesland, the Halt Bureau has three mediators. In addition, the police set up a inter-institutional grouping and started a new pilot project on 1st January 2002. A total of seven mediators are available within the interinstitutional grouping. In The Hague, seven teachers working in two schools have been trained as mediators. The Table 13-2 refers to two police school liaison officers who visit the schools on a regular basis and are also trained as mediators. They can also be employed as conference facilitators at the schools. In the following section we will describe the position of the VOM and conferencing projects that took part in our research project (Hokwerda, 2002; 2004) with respect to the criminal law.

3.3

VOM and conferencing with respect to the criminal law

Generally speaking, the projects that were examined in our study organise conferences and mediation separately from the criminal proceedings, although most of the projects attempt to arrange them as soon as possible so that the public prosecutor or juvenile court judge receives a report from the conference/mediation procedure and can take this into consideration in decisions on sanctioning. Two projects have adopted a special approach in this respect by making the project part of the sanctioning process. Out of the seven projects, two have taken up a very clear position with respect to the criminal law. These are the use of the Real Justice model in the Halt procedure at the Friesland Halt Bureau and the use of conferences in the public prosecutor model at the Utrecht district public prosecutor’s office. The most important point on which these two projects distinguish themselves from the other five is that they have embedded the conferences in existing procedures in such a way that a place has also been created for sanctioning in the conference. This inclusion is at odds with the point of view held in the majority of the projects, that the agreements made at the end of the conference should be entirely developed by the parties involved in the dialogue. The mediator, certainly according to Real Justice ideas, should not interfere. The mediators in Tilburg RJ and Zeeland Restorative Mediation have rather more scope (see section 5.2), but even in these projects, the

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decision to make agreements and the content of the agreements pertain to the participants themselves. Making the conferences part of the formal procedure at that time, that is, part of the Halt settlement or settlement via the public prosecutor model, where the sanctions are decided on, means that the agreements to be reached must conform to the formal guidelines for the settlement procedure in question. The use of conferences at the Friesland Halt Bureau is seen as one of the options available as part of a Halt settlement. Real Justice is a different way to interpret the Halt settlement. It has been arranged so that the agreements people make at the conference must not go beyond the maximum penalty allowed in a Halt settlement. If this threatens to happen, the mediator can intervene. If the mediator considers that the contents of agreements are insufficient to settle the case, she/he may decide to impose an additional measure (afterwards). A relevant factor here is whether the mediator thinks that the young person has participated in the discussion satisfactorily. The conference used in Utrecht RJ can be considered to be part of an OTP settlement13. This means that the Public Prosecution Service has the final responsibility. The public prosecutor bears the legal responsibility for the content of the agreement and at the end of the meeting judges whether the contract meets the requirements. The public prosecutor decides “on the proportionality of possible sanctions in view of the damage inflicted on society and (…) if necessary, imposes additional sanctions” (Utrecht Restorative Justice, 2000: 3). In practice, this means that the Public Prosecution Service reserves the right to impose additional sanctions in cases where things have really gone wrong. The public prosecutor not only pays close attention to the proportionality and subsidiarity requirements, but also makes sure that the period set for fulfilling the agreements made is recorded in writing in the agreement (ibidem: 6). The young person’s lawyer has an important role in the conference. The Child Care and Protection Board monitors enforcement. Where community service, an educational penalty or an assistance and support measure are imposed, the Child Care and Protection Board and Youth Probation have a greater role to play (ibidem: 8). If the conference fails, the case is referred back to the public prosecutor. The other five projects have not embedded the use of conferences in the criminal justice process in this way. For the time being, these five projects have not yet determined where and when conferences should be given a position in the criminal process, although some people have expressed a preference for holding conferences before a sanction is imposed.

13

OTP stands for Onderhoud Ten Parkette which means a settlement reached in a meeting with the public prosecutor.

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4.

CATEGORIES AND PROFILES OF JUVENILE OFFENCES

4.1

Number of cases

In the six conferencing projects that we studied, 38 conferences were organised over a 15-month period, on which we were able to gather data. A total of 311 people took part in these conferences: 90 offenders, 57 victims, 105 people attending in support of the offenders and 59 people attending in support of the victims. The number of people (offenders, victims and supporters on both sides) who participated in individual conferences varied from 3 to 2414. The VOM project in Zeeland, which also participated in our research, organised twelve mediation meetings in this period, involving a total of 10 offenders and 14 victims. On two occasions a parent of the offender was present.

4.2

Juvenile offences and offenders

The two forms of RJ procedures, VOM and conferencing, generally deal mainly with less serious offences. The mediation sessions/conferences organised by the seven projects we studied also mainly concerned less serious offences, especially minor assaults (often involving a fight between people who knew each other) and vandalism. The main offences fell into the following categories: assault, vandalism, theft, robbery, and bullying/threatening behaviour. Almost three-quarters of the cases involved group offences. The police records showed that almost half of offenders who participated in a conference or mediation dialogue were first offenders and slightly more than half were young people who already had a criminal record before the meeting. The average age of the offenders was 15 and the average age of the victims was 33. When we look at the gender ratio: in the offender group there were 79 males and 21 females, but the victim group was more evenly balanced, with 38 male victims and 32 female victims. Another striking fact was that the overwhelming majority of the offenders were white, native Dutch; information provided by the mediators showed that only 15% of the young offenders were from a different ethnic background. A small 14

In cases with more than one offender, the mediator usually invites all the offenders to take part in the conference. Offenders and victims are strongly advised to bring people who can offer support during the conference (see section 4.2).

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percentage of the victims (4%) were not of Dutch origin. In 55% of the conferences/mediation sessions, offenders and victims knew each other before the offence was committed. Virtually all of the people who participated in support of the offender were parents. The people who came with the victims were a more diverse group in terms of their relationship to the victim, but again a considerable share of them, almost half, were parents.

4.3

Follow-up and quality monitoring

We found that there is little structure to the follow-up offered in the seven projects we studied, in terms of either the amount of follow-up or the manner in which it was being offered. This was especially true with regard to checking whether the agreements made had been fulfilled, in particular where the RJ procedure had been included as part of the sanction settlement in the criminal justice framework. Most of the mediators reported that they contact the participants after the conference/mediation session. The great majority of the mediators indicated that they would check whether agreements had been kept. Mediators were responsible for a slim majority of the activities mentioned in connection with checking on whether agreements had been fulfilled. Other activities were to be carried out by the police, youth probation, schools, the individuals involved, and social control in the village was also mentioned.

4.4

Impact on recidivism

It is too early to say whether there has been a positive effect on recidivism in the seven projects we studied. It is not possible at the moment to claim with any certainty that taking part in a conference or mediation session has any effect on a person’s likelihood to re-offend. To obtain an impression of recidivism rates, we examined the police records of almost all the offenders who had participated in a conference. A striking finding was that the six offenders who had committed violent robbery at a cash machine or mugged elderly ladies for their handbags, all of whom apart from one had several police contacts on their record, virtually disappeared from the police records in the year after the conference. The question needs to be asked, therefore, as to whether cases involving serious offences that had a major impact on the victims are particularly suitable for the conferencing approach. Overall a decrease in the number of contacts with the police was found and many “first-time offenders” appeared not to re-offend. However, it is not yet possible to say whether, and if so to what extent, the RJ procedure was a deciding factor in this.

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5.

MODELS, APPROACHES, AND THEORETICAL FRAMEWORK OF VOM AND CONFERENCING

5.1

Theoretical frameworks

All of the seven projects in our study based their practice on international experience with RJ. Family Group Conferences in New Zealand and Australia, Real Justice in the US, and the Thames Valley Project in England were mentioned in particular. Subtle distinctions were found among the seven projects. Four of the conferencing projects followed the Real Justice methods originated in the United States, where, in principle, the mediator strictly follows a script that is a direct translation of the American Real Justice script. The manual used in the training of future Real Justice facilitators is based on the New Real Justice Training Manual. The Utrecht project based its approach on experiences with Family Group Conferences in New Zealand (Utrecht Restorative Justice, 2000), but in practice the two mediators employed in this project only received the Real Justice training. The Tilburg project was based on the RJ approach of the Thames Valley Police in England, combined with Real Justice methods. Finally, a different approach was used in the Zeeland Restorative Mediation project for which VOM activities in Belgium constituted the main model, thus it was different from other projects. This project offered victims and juvenile offenders a choice among different forms of mediation. They could choose indirect mediation (for instance video mediation, sending flowers, writing an letter of apology), VOM or conferencing, but the Family Group Conference was hardly ever used in practice.

5.2

Role of mediators

The most conspicuous aspect of all these projects, despite minor differences between them, is the way the conferences/mediation sessions are guided and led by the mediator. Four of the seven projects followed the Real Justice model, two followed a slightly modified version and only one had adopted a different approach. This means that the Real Justice model is the dominant model by far, and this is an approach in which the mediator’s role in the conference is, in principle, merely a facilitative one. Real Justice script binds the mediator as she/he guides the mediation dialogue. The script has to be followed more or less precisely. The script guides the mediator through the stages of a conference, which are: (1) the introduction; (2) the exchange of experiences, feelings and thoughts on what has happened; (3) discussing how to deal with the aftermath of the offence which can result in a written agreement; and (4) an informal meeting after the formal conference. The

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script includes the questions the mediator has to ask (literally), the person who is asked the question in each stage and in what order the questions should be posed. Only Zeeland Restorative Mediation does not use a script and so their mediators enjoy the greatest freedom during the mediation session. As a general rule one mediator led the mediation sessions, but in some cases there were two mediators. The decision to use two mediators was usually made when the conference had a large number of participants. The project in Utrecht was an exception to this as it always organised its conferences with two mediators. Tilburg used two mediators but they had different roles: one was responsible for preparation and general organisation and only had a listening role in the actual conference whereas the other guided and led the conference. The mediator leading the conference is always a police officer in uniform and the conference always took place at a police station. In this respect too, this project is unique in the Netherlands. The script is an important tool, providing a relatively simple way to give structure to the conference and to ensure that necessary information is given at the beginning and end. Following the script too closely is not always useful, however, and could sometimes result in a rather forced procedure. In addition, following the script too closely may require the involved parties to repeat themselves and cause the mediators to miss opportunities to ask clarifying questions. There also needs to be room for the mediator to intervene should that be necessary. Furthermore, the wording of the script was a little difficult for some of the young people to understand. Although in most projects the mediator has a rather passive role during the conference, the preparation of the conference demands a much more active role of them (see section 6.3). Both their passive, merely facilitative role and the use of the script seem to be at odds with professional mediation and are rather controversial for this reason. This brings us to the next point, concerning the training and background of mediators in the Dutch projects.

6.

PROFESSIONAL CHARACTERISTICS OF MEDIATORS

6.1

Background of mediators

In general the people taking on the role of mediator in these projects are recruited from within the organisation running the conferences or mediation sessions. They are usually people employed as Halt workers, youth workers, youth probation officers, police officers or school teachers. Volunteers are hardly ever used on the projects, though a project in The Hague started to

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work with volunteers in 2003. These volunteers had been trained to become Real Justice coordinators (Haaglanden Restorative Justice Project, 2003).

6.2

Training procedures and length of training

The various mediators had undergone quite different forms of training. The police project in Tilburg has developed its own training for the police officers that lead their sessions, based on the training received by police officers in the Thames Valley project. The training takes a few days and is organised internally. The mediator at the Zeeland VOM project had not had any specific training but is developing her own approach on the job based on different practices. Given the fact that the majority of RJ projects in the Netherlands operate along the lines of the Real Justice model, the majority of mediators have only had a very short training lasting three days given by the Real Justice organisation. The Op Kleine Schaall Foundation (OKS) (translates as “On a Small Scale”) and the WESP Bureau in Voorhout15, organise three-day training courses for people who want to coordinate RJ meetings and award their own certificates. The organisation has been licensed to award certificates by the Real Justice Organisation in Bethlehem PA, USA. The people who take these courses are people working in education, youth care, the police, the legal system and community work. The emphasis in these courses is on impressing prospective mediators with the need to be detached and to take a purely facilitative role. This emphasis must be seen as an expression of the underlying philosophy of Real Justice. This holds that offences should be seen as “conflicts” between citizens and that citizens should be stimulated to resolve their own “conflicts” and to minimize the interference of experts, judges, lawyers, psychologists, social workers, etc. Mediation can only be facilitation, in this philosophy, which is clearly and explicitly inspired by abolitionist thinking (Christie, 1977)16. This is in marked contrast with the training required by the NMI, which was taken by hundreds of mediators in the civil domain and is applied in a very diverse range of professional fields. There are 12 training institutes approved by the NMI in the Netherlands, varying from university and postdoctoral courses for the legal profession (lawyers, tax lawyers, civil-law notaries, management consultants, company lawyers and managers); to postgraduate training courses for psychologists provided by the Service 15

The OKS foundation and the WESP bureau have bought the rights to the American Real Justice method. 16 Abolitionism had two strong and influential champions in the seventies and eighties in The Netherlands with professor Louk Hulsman and Herman Bianchi.

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Centre of the Netherlands Institute for Psychologists (NIP); and courses offered by higher vocational education colleges (polytechnics) and a few private institutes. About half of the mediators registered with the NMI are lawyers. The mediation courses approved by the NMI vary in length from 21 days (ADR Institute of Amsterdam University) down to a minimum of 6 days spread over several months17. Since 1st May 2003, it has been a requirement upon those completing a course at one of the recognised institutions to pass a test set by the NMI before he or she becomes eligible for registration. On the NMI-approved courses, the emphasis is certainly not on the purely facilitative role of the mediator. Of course, it is stressed that the mediator must always strive to be neutral and unbiased, but the emphasis in the training is on the professionalism of interventions to enable the parties involved to reach the best result. In addition, emphasis is placed on acquisition of knowledge and skills concerning negotiating techniques and communication, and on various methods of conflict management. (Bonenkamp et al., 2001) There has been quite extensive specialisation in the NMI in recent years. There are separate training courses for psychologists, accountants (who have their own Foundation for Mediators in Accountancy) and for divorce lawyers (who have their own Association for Lawyers in Family Law and Divorce Mediators, VFAS). To be admitted to the VFAS, a lawyer must have been a member of the Bar Association for at least four years, have taken and passed a specialist training course in family law, be working in personal law and family law at least 16 hours a week, and have dealt with at least 25 family-law cases in the three years leading up to the application for membership. The difference between these requirements and common requirements concerning the VOM field in the Netherlands is striking. As stated earlier, a couple of projects using VOM in juvenile criminal cases do work with NMI mediators, but this is by no means compulsory. There is a great deal of room for experimentation in the criminal justice field in the Netherlands, especially when it comes to juveniles, and, in principle, anyone with an interest in the field can take the training in Real Justice offered by OKS and WESP. While people with a legal background dominate the NMI, there is an aversion to legal education and principles in the Real Justice courses. While the NMI training courses emphasise the communication skills of mediators, Real Justice instructs prospective mediators to hold back from making a contribution to the discussion themselves, to follow the script and leave the rest to the participants themselves.

17

NMI: www.nmi-mediation.nl.

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Responsibilities assigned to mediators

The mediators in the projects we studied all had responsibilities for preparing and holding the conference or mediation session and for follow-up (in so far as any follow-up was provided, see section 4.4). As stated earlier, one project was an exception in this respect, as a different mediator from the one who guided and led the conference did the preparatory and follow-up work. In this project, the mediator with responsibility for preparation also had an important role in preparing the mediator who was to lead the session. Once a case had been referred to the mediator, the preparatory phase began. The mediator’s most important duties in this phase were: obtaining information to understand the case, assessing whether the case is suitable for a conference/mediation meeting and, if so, organising the meeting and preparing the people concerned. What everyone agrees upon is that for all concerned, participation must always be on a voluntary basis, offenders must have admitted that they committed the offence, and have said that they want to take responsibility for it. The needs of the victim must come first and there must not even be a small risk of re-victimisation. The six conferencing projects also require that the offender and the victim have the support of persons from their social network who are important to them. These need not be close members of the family, but can be friends, teachers, football coaches, social workers and others, provided they are able to offer support to the people they are accompanying. These individuals can also take active part in the conference. The mediator holds the important role to consult with those directly involved and to contact and bring together the people who are allowed to take part. There are also a number of important differences with respect to the criteria for deciding on whether potential participants are suitable. This does not only involve judging the suitability of those directly involved and the people from their social networks, but also deciding who else apart from these people could be invited to attend. These could include youth probation officers, child protection investigation officers, social workers and lawyers. Differences in the way the parties involved are assessed arose when more detailed criteria are available, as is the case in the Utrecht RJ, Tilburg RJ and Zeeland Restorative Mediation projects. These projects developed more detailed criteria for, for instance, the skills, capacities and mental states of offenders, victims and those accompanying them. The Real Justice model does not mention these criteria but, compared to the other models, leaves them wide open. For victims and perpetrators, it is confined to the criteria mentioned above. In the Real Justice model, not only are the criteria left vague, but also people are warned against being over cautious. It is still the case, however, that the needs of the victim must come first and there must be

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not even be a small risk of re-victimisation. The people accompanying the offender and the victim must be chosen by them. The mediator may only offer advice on this, in the interests of promoting the participation of individuals who are able to offer support. At Utrecht RJ, the criteria that participants have to meet are stricter than those applied in the Real Justice model. These criteria have a direct bearing on the capacity of the person concerned and circumstances in his life that affect his behaviour. A person is considered to be suitable provided there is no question of any serious mental illness or addiction, she/he is able to reflect on the crime and detach her/himself from it, she/he is not openly harbouring any feelings of revenge and is not aggressive, and is willing to face the offender or the victim and to listen and respond to her/him (Utrecht Restorative Justice, 2001). A fundamental departure from the ideas of the Real Justice model can be found with respect to the desirability of a lawyer being present. The Real Justice model advises strongly against involving lawyers in a conference, because, as a matter of principle, a Real Justice conference must not be a legal procedure. “Offenders and victims cannot take a legal representative to a Real Justice conference” (Real Justice, 2000: 29). They may, however, attend as a silent witness, which means that they cannot take part in the discussion and have to sit in the “second circle”. In the Utrecht RJ project, however, the presence of a legal representative was considered to be very important. This had everything to do with the embedding of the project in the public prosecutor model. Indeed, in cases where RJ is indicated, the appointment of a counsel is a legal requirement. Cases that are eligible for a conference are those in which the public prosecutor has the authority to settle the case out of court18. If the public prosecutor wishes to use this power to use a conference, this means that the conference and the resulting agreement take the place of the settlement and a counsel must be appointed19. As well as those directly involved, Utrecht RJ allowed other “relevant” people to be invited to the conference. The presence of a lawyer has just been discussed and social workers were also mentioned. The roles of these people at the conference were specified as follows: “The offender’s counsel and the victim support worker for the victim may attend to follow the procedure and if necessary to explain various matters” (Utrecht Restorative Justice, 2001: 6). If the offender is a recidivist, youth probation may offer support at the meeting (ibidem: 8). Like Utrecht RJ, Tilburg RJ looked at whether the person was suitable to participate. Criteria mentioned included the offender’s age and whether she/he had sufficient emotional maturity, and that the victim had to be a 18 19

See art. 77f penal code. See art. 489 par. 1 under a penal code.

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private individual who had experienced emotional suffering as a consequence of the offence. Child protection investigation officers and youth probation officers are given a structural role in the project. Whenever a worker already knew an offender from the Child Care and Protection Board or youth probation, that worker would be invited to the meeting. The aim here was to keep the lines of communication between agencies as short as possible. The Zeeland Restorative Mediation project also laid down specific criteria, relating to the personal qualities and motives of the individuals involved. Both the offender and the victim had to meet the following criteria (Zeeland Youth Care Foundation, 2000): sincere desire by both parties to listen to the other party’s side of the story; no serious pathology, addiction or incest; ability to reflect on what happened; the offender’s and victim’s accounts of the event must not be diametrically opposed; no feelings of revenge may be harboured or open aggression toward the other party; both parties expectations of what they would gain from the dialogue had to be reasonable. Additional criteria for the offender were that she/he: wishes to convey to the victim that she/he is sorry; is capable of ethical reflection; is capable of listening to the victim’s story and feelings; and has expressed a wish to live a life without committing crimes. Additional criteria for the victim are that she/he: has overcome the initial shock; feels the need to ask the offender certain questions or tells the offender about the impact of the offence on her/his personal life; and is capable of listening to the answers. The option is also available, if the victim feels the need, for someone from the Victim Support Office to be invited to attend the meeting, and in the case of the offender, someone from youth probation. Although the criteria in the description of the Real Justice model are kept vague, mediators reported that in practice they often used more specifically worded criteria. Discussions with project leaders and mediators revealed that there is a difference between the criteria on paper and the criteria used in practice. This seemed to apply to all the projects (including those operating along the lines of the Real Justice model). The search is still on for a complete inventory of these and other criteria. Following on naturally from this, there is a suspicion that although certain criteria are (or are more explicitly) formulated at one project and not at another, they may still be being applied in practice. Deciding whether people are or are not suitable to take part is often based on little more than intuitive feeling at the moment. It is expected that more practical criteria will gradually be formulated.

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CONCLUSIONS

Our first conclusion is, that in general, the victim has a good position in The Netherlands compared to most other European countries. Second, concerning forms of mediation and restoration, we conclude that, although VOM was introduced in the Netherlands a few years before conferencing, conferencing is generally preferred in cases involving juvenile offenders. There are only two local experiments conducting VOM exclusively with juvenile offenders, and about 12 projects experimenting with conferencing in these cases. A third and striking conclusion is, that there is no central organisation and initiative in The Netherlands. VOM, conferencing, and other forms of RJ have a short history in the Netherlands and experiments are still being conducted by different organisations, spread over the country in various local projects. There is still no nationwide network, nor has any specific legislation been passed on mediation in penal matters. RJ has not yet gained a firm foothold in the Netherlands and the political situation does not make this any easier. The main focus seems to be to get tougher on crime, which does not provide fertile ground for RJ. The future of restorative practices are, therefore, still uncertain. Four, we conclude that it is within this particular context that a peculiar form of mediation could flourish, with a passive and merely facilitative role for the mediator, deviating from the usual role of the mediator in civil matters and from the more intensive and more lengthy professional training approved by the NMI.

REFERENCES Berghuis, B., 2002, Strafrecht en herstelrecht: OM-beleid in het licht van bemiddeling, Tijdschrift voor Herstelrecht, 4:29-40. Blad, J., 2002, Herstel van relaties in de buurt, Tijdschrift voor Herstelrecht, 2:3-4. Bonenkamp, H.J., Brenninkmeijer, A.F.M., Van Bruggen, J., and Walters, P., 2001, Handboek Mediation, Sdu Uitgevers, Den Haag. Brienen, M.E.I., and Hoegen, E.H., 2000, Victims of Crime in 22 European criminal justice systems, Wolf Legal Productions, Nijmegen. Bruins, J., 2002, Het Nederlands jeugdstrafrecht na 1995, Tijdschrift voor Herstelrecht, 1:2740. Christie, N., 1977, Conflicts as Property, British Journal of Criminology, 17(1):1-15. De Jonge, G., and Van der Linden, A., 2004, Jeugd & Strafrecht, Kluwer, Deventer. Echt Recht, 2000, Handboek Echt Recht Conferenties, OKS/WESP, Voorhout. Frijns, J., 2001, Herstelbemiddeling in de praktijk, Justitiële Verkenningen, 27:81-96. Herstellend Recht Tilburg, 2001, Herstellend Recht in Tilburg (concept), (internal report). Herstelrecht Utrecht, 2001, Herstelrecht in Utrecht, (internal report). Herstelrecht Haaglanden, 2003, Projectplan Herstelrecht, (internal report).

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Heslinga, Y.H., 2001, De professionalisering van slachtofferhulp, Justitiële Verkenningen, 27:10-19. Hokwerda, Y.M., 2002, Herstelrecht met minderjarige delinquenten: Zeven projecten uit de Nederlandse praktijk, Tijdschrift voor Herstelrecht, 2:44-54. Hokwerda, Y.M., 2004, Herstelrecht in jeugdstrafzaken: Een evaluatie-onderzoek van zeven experimenten in Nederland, d Boom Juridische Uitgevers, Den Haag. Hudson, J., Morris, A., Maxwell, G., and Galaway, B. (eds.), 1996, Family Group Conferences. Perspectives on Policy & Practice, The Federation Press, Amandale. Kool, R., and Moerings, M., 2001, De Wet Terwee. Evaluatie van juridische knelpunten, Gouda Quint, Deventer. Kool, R., Moerings, M., and Zandbergen, W., 2002, Recht op schrift. Evaluatie projecten Schriftelijke slachtofferverklaring, Kluwer, Deventer. Leest, J., 2003, Restorative Justice in the Netherlands, Newsletter of the European Forum for Victim-Offender Mediation and Restorative Justice, 4:3-4. Morris, A., and Maxwell, G. (eds.), 2001, Restorative Justice for Juveniles. Conferencing, Mediation and Circles, Hart Publishing, Oxford. Nederlands Mediation Instituut; http://www.nmi-mediation.nl. Neighbourhood rhood Juustice (Justitie ustitiee in de buurt); http://www ministerievanjustitie. nl/b_organ/jib/about_index.htm. Slump, G.J., van Aalst, M., and Bacchus, J., 2003, Bemiddelingsmodaliteiten bij Justitie in de Buurt, DSP-groep BV, Amsterdam. Spapens, A.C. and Rebel, J., 1999, Evaluatie Experimenten Dading: Eindrapport, IVA, Tilburg. Stichting Jeugdzorg Zeeland, 2000, Herstelbemiddeling g (internal report). Terpstra, J., and Bakker, I., 2003, “Met recht lokaal”: Verkorte rapportage en conclusies van de evaluatie van Justitie in de Buurt, IPIT, Enschede. Van Barlingen,, M., Slump, G.J., and Tulner, H., 2000, Tussenevaluatie Herstelbemiddeling, DSP, Amsterdam. Weijers, I., and Hokwerda, Y.M., 2003, Patterns and possibilities for pedagogical communication in juvenile court: England and Wales and The Netherlands, in: Youth Violence: New Patterns and Local Responses, F. Dünkel and K. Drenkhahn, eds., Forum Verlag Godesberg, Mönchengladbach, pp. 679-690. Weijers, I., 2004, Requirements for Communication in the Courtroom: A Comparative Perspective on the Youth Court in England/ Wales and The Netherlands, Youth Justice. The Journal of the National Association for Youth Justice, 4(1):22-31. Wolthuis, A., 2000, Van jeugdsanctierecht naar jeugdherstelrecht: Een rechtsvergelijkende studie naar vormen van herstelrecht voor jeugdigen, Defence For Children International, Amsterdam.

PART FOUR “

SOUTHERN “LATIN COUNTRIES

Chapter 14 MEDIATION AND REPARATION FOR YOUNG OFFENDERS IN FRANCE: AN OVERVIEW Philip Milburn∗ -

1.

INTRODUCTION

Victim-Offender Mediation (VOM) has a recent history in France. It was introduced in the 1980s though local experimental schemes which were the initiatives of a small number of magistrates, social workers or academics acting independently. Most of these schemes were focused on adult offending. Only two or three were aiming at juveniles, hence the title médiation-réparation. Whilst adult penal mediation was mainly developed on a community and volunteer basis, juvenile oriented schemes involved social workers with responsibility for the implementation of judicial measures. These first experiences (4 or 5 in France at the most) were inspired by United States VOM schemes which a few French prosecutors studied during their visits across the Atlantic. They were based on the power of prosecutors to suspend prosecution under certain conditions, especially if the offender showed a willingness to do something to reduce the impact of the offence. Local schemes of “penal mediation” or “reparation mediation” had been developed on a larger scale and evaluated by mediation experts and also by the Justice department. At first, in the 80s, VOM was not welcomed in the French judicial system, either by the professional magistrates1 or by the Ministry of Justice. It was regarded as a low quality justice, offering no procedural guarantees to ∗ 1

Special acknowledgements to Bob Foster for his precious help and revision of this chapter. In France, judges and public prosecutors belong to a common professional body named “magistrates” (magistrats).

301 A. Mestitz and S. Ghetti (eds.), Victim-Offender Mediation with Youth Offenders in Europe, 301-319. © 2005 Springer. Printed in the Netherlands.

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citizens. But this view had changed by the end of the 80s: the experimental schemes carried out on a larger scale were successful enough to provide a judicial response to a supposedly increasing level of petty crime. A rapid shift took place when the socialist government in power at that time, seeking re-election, was placed in the ambivalent position of having simultaneously to deal efficiently with crime and to avoid using excessively punitive means. Consequently, this government saw in VOM an ideal way to manage this dilemma. Already used locally as a diversion referral by some public prosecutors, VOM was included in the penal procedure code in 1993, which enabled implementation on a national scale. But for both organisational and legal reasons which are to be outlined in the course of this chapter, two separate procedures were devised: one mainly for adults (médiation pénale) and one for juveniles under 18 (réparation pénale2). Whilst adult VOM is merely a diversion referral (i.e., avoiding prosecution for the offender), Reparation Orders were included in the legal text defining the juvenile justice system3. They can be made by both the prosecutor and the “children’s judge” either in court or in a cabinet referral procedure. Reparation Orders are also meant to comprise an educational element and to be carried out by professional social workers under the authority of the national agency for “judicial protection of youth” ((Protection judiciaire de la jeunesse, hereafter PJJ), responsible to the Ministry of justice. The effective instigator of the referral may be either an educational officer belonging to this agency or a social worker employed by a not for profit Organisation (NPO), subsidised and certified by the national agency, the PJJ. Therefore, the French system of Reparation Orders may be included in the definition of VOM for juveniles, however, as we will discuss further in this paper, the “victim” is not necessarily a private individual, but may be an organisation or the community as a whole. The measure deals with both the consequences of the offence for the offender and the individual or collective victim.

2

The provisions do not mention any minimum age for these measures. In the survey we carried out, the youngest person involved with a reparation order was 9 years old. 3 Ordonnance du 2/2/1945.

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2.

GENERAL FRAMEWORK OF IMPLEMENTATION

2.1

Legal provisions in France: history and principles

303

The preparation of the reform of the Code including VOM brought about a judicial debate as to its legal status. This kind of procedure can only be carried out if both parties give full consent and become involved in the process. It was argued that juveniles under 18 could not give full consent, possessing neither fully developed moral discernment nor legal responsibility. Therefore, the validity of the mediation process could be negated on these grounds. Besides, it was also argued that any penal measure designed for minors would fall within the realm of special legislation4 and must include an educational approach, in compensation for the lack of legal responsibility. This idiomatic concept of ‘educability’ had been forged in 1945 through replacing punitive action for juveniles by judicial measures enforced by educational and social tools. As a result a specific doctrine has been developed for this type of measure intended for minors. In its new legal framework, médiationréparation became merely “reparation” which implied the pre-eminence of an educational dimension. But the legal text included in the Procedure Code does not formally prohibit the possibility of ordering and carrying out adultlike VOM referrals for minors. The above mentioned legal argument against this is by-passed by obtaining the consent of the child’s parents in the mediation process. In many local jurisdictions (but not all), prosecutors may refer young offenders under 18 for penal mediation on the condition that their parents take part in it. The resulting legal framework, issued by the reform of the code adopted on January 4th, 1993, can be summarised as follows: - the Penal Procedure Code provides for a “penal mediation” referral intended for the adults by the prosecutor, to be carried out by a specific agency or agent which is agreed by the court; - it provides for juveniles under the age of 18 to be referred for “penal reparation”. It may be requested by the prosecutor, by the juvenile court or the children’s judge. If requested by the prosecutor, indictment is avoided if the reparation measure is successful. If the judge orders it, it is considered an educational measure with no penal consequence; if the court orders it, it is considered an educational measure and the sentence is suspended. In all these cases, it is carried out by educational staff under the conditions mentioned in the Introduction. 4

Ordonnance du 2/2/1945.

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The uniqueness of the French situation in this matter lies with the fact that VOM is formally excluded from the process of the reparation programmes for minors but may be carried out in some cases where the young offender’s parents act as legal respondents. Therefore, this chapter will consider both schemes, each of which over the years has developed significantly different references, standards and practices, whilst being carried out in quite separate frameworks. Consequently, it is necessary at this point to introduce a permanent distinction between the two kinds of schemes: Reparation Orders and penal mediation referrals.

2.2

Reparation orders

Reparation Orders (RO) are intended to be carried out by education officers – state employees – of the PJJ agency. There appears to be no additional cost since it is part of their global service. The agency is organised within “departmental” (i.e., county) units, each comprising residential services and “open context” (fieldwork) services which have RO implementation in charge. These services are coterminous with the 1815 first level juvenile jurisdictions in France. This agency is, in some areas, completely overloaded with work and so ROs may be carried out by “private” educational services. These private organisations receive subsidies for the educational measures they are required to carry out by the youth court. There were approximately 22 private RO services throughout the country in 2000. The characteristic of RO lies in the high level of professionalism of its agents. This has consequences both for the independence and on the relative homogeneity of practice. According to the survey we carried out, social workers in charge of RO tended to be resistant to the precise demands coming from the magistrates related to the effectiveness of their actions. They are very much concerned with maintaining its educational purpose, which they consider to be fundamental. We shall look at the doctrinal basis and its consequences later on. Two different groups of social workers carry out ROs. A first group are part of the national judicial agency for youth (PJJ). Trained to support the specific measures that relate to the judicial processes, their competency is mainly based on educational and pedagogical ideals. When specialising in reparation, they may follow a specific additional 2/3 day training course to become familiar with the national guidelines. The relatively high professional status and standard of this group ensures national homogeneity in practice and models, and high levels of independence from the pressures 5

Considering the statistical categories of the judicial administration, it is impossible to know precisely how many of these services actually carry out ROs.

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and demands coming from external agents, such as the police, the prosecutors and the judges. A second group of social workers is employed by private organisations. They also are trained and licensed by a state diploma in special education (éducateurs spécialisés). This three-year training takes place in social work professional academies. There is no specific training for mediation or reparation on the course. The special competencies required are in general acquired on the job, with supervision provided from senior colleagues. Within the State agency, most agents have multiple tasks including reparation. The co-ordination between them is not very well developed and based mainly on individual motivation and initiative (seldom on service agenda). In private organisations, things appear more efficiently organised around reparation, since most agents are trained for this measure. If several of them work in the same organisation, there is a significant co-ordination: sharing of the cases, meetings about the cases and the possible options, etc. Reparation being a professional activity, an agent who works only on Reparation Orders may carry out up to 20 measures at a time. A full reparation process, without any special incident, is spread over 3 months on average.

2.3

Victim-offender mediation

VOM may be carried out for young offenders in another framework: the common penal mediation schemes designed for adults. The context is therefore the same as it is for adults but the type of method of mediation may differ. Penal mediation schemes vary a lot according to the jurisdiction in which they operate and depending on the history of their development. It is impossible to have a global view of the different frameworks but we can get a good glimpse with the survey we completed in 2000. Out of our sample, four kinds of mediators’ status were categorised. Here are their respective characteristics: 1. professional mediators within a large not-for-profit organisation for social child care; 2. unpaid volunteers within a small community mediation organisation, existing before the penal mediation scheme was implemented; 3. lay mediators paid for each intervention and working under the direct authority of the prosecutor’s office; 4. retired police or justice professionals, operating on a voluntary basis and receiving a small amount of money to cover expenses. Different practices may be observed in each of these contexts. In the main, there is a significant dependence upon the prosecutor’s office which

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forwards the cases to the penal mediation agency. If the agency also provides separate activities (such as n. 1 and 2), it may have a certain autonomy but most prosecutors seem to want to keep a close eye on what mediators do and to control their action. Besides, there seems to be no precise indication at the national level about what mediation for young offenders should consist of. Methods depend either on the prosecutor’s instructions or on personal initiatives from the mediators.

2.4

Professional qualification of mediators

Who exactly are the mediators? What is their background or their training? Three major categories may be outlined to give a general idea: 1. The first group consists of retired individuals, mainly police officers, lawyers or magistrates. They are chosen for their basic competency in terms of law and/or personal authority. They may be recruited following their own application or at the request of the prosecutor or other mediators, etc. They generally attend annual short training sessions offered by a national organisation, lasting three or four days. The quality of their competency in the practice of mediation rests mainly on the quality of the training at local level and the requirements and standards designed by the organisation. The co-ordination and the debriefing of cases by the team often play a major role in this perspective. 2. The second category refers to new mediators who cannot be considered as professionals, but as part-time mediators who might have a main employment or be a student, house wife, etc. They are recruited on the basis of their previous relational or cultural competency and trained to mediation more or less intensively according to the different agencies employing them. They may be volunteers or be paid for each mediation case they carry out. 3. The third category includes professional mediators, mediation being their main or sole activity and resource for living. Their background and basic training has to do either with law or social work. The specific training in mediation is more intense than it is for those belonging to the other categories mentioned. These mediators are recruited internally from related activities, or through external recruitment. But there is no professional group of mediators to be found in France (and certainly not for VOM), given that “professional” mediator refers mainly to the employment status. The status of the mediators is chosen by the organisations and they then employ mediators belonging to only one of the three categories. With juvenile cases, only one mediator is in charge. She/he is chosen on the basis of his previous experience with young people (social worker, teacher, etc.)

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Although there is a certain dynamic of co-ordination of mediators within the local organisation, those who intervene for juveniles seem to work in a more individual way: there appears to be no specific training, meetings or discussions structures relative to this particular kind of situation. Whilst those who carry out ROs show a good level of training and specialisation in child care, mediators have a much lower level of professionalism, both in terms of status and competencies (specialisation, training, etc.). Moreover, in a large majority of cases, the same persons are accredited to perform both penal mediations and legal cautioning (rappel à la loi). The latter may be ordered for adults as well as juveniles, but minors are the main target. In this kind of performance, the agent represents the judicial institution in its authoritative dimension. The same person is called upon to perform a non directive action as mediator between a young offender and a victim. They are thus required to have a double set of competencies combining conflicting qualities. In conclusion, one can note a significant discrepancy between the highly professionalised reparation agents, developing specific competency for this activity, and the absence of well defined standards, status and training concerning penal mediation involving juveniles. This is largely due to the legal framework which decrees that juvenile justice matters must be dealt with by the national agency PJJ. All other penal mediation initiatives for juveniles are carried out and developed at a local level and sometimes rely on the qualities of one person (specialised mediator). But there is no national scheme in terms of defining standards, training and guidelines.

3.

OFFENCES, OFFENDERS AND PROCEDURE

3.1

Categories and profiles of juvenile offences

The survey we undertook of a sample of the French jurisdictions gathered specific and relevant data concerning the nature of offences that Reparation Orders deal with and the profile of the young offenders. Firstly, let us examine the national official data concerning penal mediation and reparation referrals. Table 14-1 shows that penal mediation represents only 22% of the total activity of both mediation and reparation referrals. The 16,222 referrals represent 27% of the total of reported offences for which some judicial action (diversion or prosecution) is taken. Penal mediation referrals represent 6% of that total.

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As far as survey data about ROs are concerned, some statistical indications are provided by a survey of over 265 files on reparation orders in 2000 (see Tables 14-2, 14-3, 14-4).

Table 14-1. Number of referrals of young offenders in the years 2000-2001. 2000 2001 N N Penal mediation (prosecutor) 3,561 3,518 RO (prosecutor) 4,776 4,972 RO (judge) estimated 4,600 5,000 RO (court) 2,296 2,732 Total 15,233 16,222 Source: Annuaire statistique de la justicee (2003).

% 21.69 30.65 30.82 16.84 100

Table 14-2. Previous judicial actions against young persons sentenced to ROs in 2000 (sample: 240 individuals). % None 81.67 One 13.33 Two and more 5.00 Source: Milburn (2001). Table 14-3. Offences committed by youth offenders sentenced with ROs in 2000 (sample: 265 individuals). Offences % Theft and robbery 48.30 Assault 13.21 Destruction/deterioration of goods 23.02 Miscellaneous 15.47 Source: Milburn (2001). Table 14-4. Age of juvenile offenders sentenced with ROs in 2000 (sample: 262 individuals). Ages % 0-12 8.40 13 8.40 14 12.98 15 21.37 25.19 16 17 23.66 Source: Milburn (2001).

It can be added that 63% of the juveniles have parents who belong to the working class (including unemployed) whereas only 15% from the middle

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and upper classes6. Moreover, at least 37% of juveniles are from one-parent families. VOM seems to be used for juveniles who commit petty offences for the first time and who are in difficult social situations. Age does not appear as a decisive criterion for the magistrates: the involvement in crime stands out (according to the statistical tests) as the prominent criterion for choosing this kind of judicial measure.

3.2

Procedure

Reparation and penal mediation concern minors’ cases which are brought to the prosecutor’s office by the police. The prosecutor can either close the file, pass it on to the children’s judge for legal proceedings or use the “diversion” option. In the latter case, he refers the case to a specialised agency (which undertakes the appropriate measure) calling for a mediation or reparation. Once the measure has been undertaken by the juvenile, the mediator or the social worker reports his final assessment to the prosecutor who closes the file if the assessment is positive. In the case of failure, he may ask for prosecution, but he has no legal obligation to do so. He has full discretion in the “prosecution opportunity”7. If the case is dropped, the offence and the procedure are not mentioned on the offender’s record. Indeed, this type of diversion procedure gives no legal basis to the effectiveness of the offence since the person’s guilt is not established by the court. Reparation may also be ordered by the children’s judge or the juvenile court, whenever the prosecutor has called for an indictment8. The measure is not a sanction but remains an educational measure according to the minors’ penal legislation. It is placed on the offender’s record. The court’s or judge’s choice is based on the prosecutor’s request, the court social services advice and their own appreciation of the case. When it is ended, its outcome is reported to the judge or the court who takes a final decision on further proceedings. When the measure has been considered successful, the proceedings generally come to an end. In most jurisdictions, the local agency carrying out ROs has preliminary discussions with the court and the prosecutor’s office as to what kind of 6

7

8

The remainder comprises shop owners and retired parents whose position in the social hierarchy is undetermined. This is the official designation for this prerogative. His decision in this matter is liable to appeal (e.g., by the victim), but this very rarely happens for petty offences. This is only possible for reparation. VOM can only be undertaken as a prosecutor’s office referral. Moreover, children’s judges have the discretion to order educational measures without reporting to the court, which can order both educational measures and penal sanctions.

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cases may be considered for reparation (nature of offence and profile of offender). This explains the relatively homogeneous statistical characteristics of the juveniles, as shown above. The same agencies carry out ROs ordered by the judge or court and referred by the prosecutor; moreover, the cause of the referral does not determine the specifics of the measure. On the whole, ROs appear to be a more clearly defined procedure in which the various stakeholders have precise guidelines for action. This is much less true of VOM which is entirely at the prosecutor’s discretion. Criteria for choosing cases vary considerably according to local jurisdictions and sometimes to the individuals involved. VOM is clearly a diversion measure, where the prosecutor has the decisive role taken by the police in other countries (especially in the United Kingdom). It operates as a non judicial measure referred by a judicial agent who exerts effective control only on the licensing of the mediators with very little impact over its implementation.

4.

ETHICAL STANDARDS AND TECHNICAL PRACTICE

4.1

Elements of doctrine

During the years preceding the inclusion of these measures in the Penal procedure code, research and debates have burgeoned about what penal mediation and RO should consist of. The debates took place in separate contexts. The PJJ – the national agency for child protection and care of young offenders – has the monopoly over the implementation of sentences and disposals aimed at minors. It has therefore sought to develop a specific philosophy for reparation. Mediation, for its part, has had no official support, except for the establishment of a small private organisation accredited by the Justice ministry to provide training and establish a network of local organisations in charge of mediation. But the affiliation is not compulsory and its authority is quite limited. Besides, the legislative provisions for mediation are aimed predominantly at adults. 4.1.1

Reparation Orders: the concept of resilience

ROs are underpinned by several specific academic references with respect to their purpose and their implementation. They have been drafted by psychologists and educational professionals from the PJJ national agency. This contributed to focus on the educational dimension of the intervention.

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Reparation is seen neither as a punishment nor as a simple repairing of damage done to the victim. It has mainly a symbolic dimension, inspired by a psychoanalytic approach. The young offender’s feeling of guilt is the element to be “repaired”, as well as his identity within the community: this is part of a process of resilience, as theorised in psychology. Reparation has primarily a restorative dimension in the sense that the relationship of the person with his/her social environment is the key to the resolution of the offence. Moreover, it has an educational aspect in the sense that this relationship is fundamental for the personal development of an adult-to-be and therefore it needs more than mere law enforcement or reparation of the damage. The reparation process is meant to enhance the personal responsibility of the youth with a better understanding of the meaning of his misbehaviour and of what is expected by the community. These points have been developed and argued in several publications9, which gather the points of view of psychology theorists, youth magistrates and social workers, thus consolidating a single referential framework for anyone concerned with the implementation of the scheme. This well defined doctrine does not give a major role to the victim. He is not excluded from the operation and may have his place as a representative of the community. However his distress or the damage done to his goods is not be central to the reparation process, but merely one of the elements. The activity undertaken by the youth as a reparation achievement is justified to the victim on the sole grounds that it is compatible with the educational aims. 4.1.2

VOM: conflict resolution principles

In France, VOM relies more generally for its references on mediation in general, e.g. community or family mediation (see Milburn, 2002). In France there is a multiplicity of trends and models as to how mediation should be carried out. They are supported by different organisations and networks, often in competition. As a result there is no mainstream model for VOM in France. Local practice depends solely on the pre-existing local mediation organisation or an affiliation to a training network. Whilst these practice models have some influence in community and family mediation, there is no such process in VOM, because the training is light and the standards of licensing are designed by the local prosecutor’s office. For example, community mediation has developed with reference to the “Grenoble model”. Models such as the one developed by Jacqueline Morineau, that

9

Cf. Vaillant (1994; 1999).

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seem to have some success in other countries10, have not made a significant impact on the French experience. Because of this lack of coherence, our research founded its analysis on the basic principles to be found in the abundant literature on mediation, including books and specialised journals11. Here there appears to be a dominant consensus which may be considered as a common set of doctrinal references. What do these principles mean in concrete practice? Do mediators abide by these rules which have no coercive aspect? The main principles deal with the neutrality and the impartiality of the mediator during the intervention. She/he is supposed to be “neutral” in the sense that she/he does not represent the state and its aims in terms of public order. Therefore, as far as the criminal action is concerned, she/he is not there to enforce the law, but simply to restore the relationship between the two parties based on a feeling of fairness (Rawls, 1971). From this point of view, her/his action must remain non directive in the sense that she/he must neither impose nor even suggest the outcome of the dialogue between the two parties (Faget, 1997). The solution to the dispute should result from the exchange between victim and offender and their own initiative. This Rogerian approach implies that people must find a suitable outcome based on their own common sense and values, and consequently the solution is their joint responsibility. Impartiality has to do with the equivalence with which the mediator treats both parties, not giving any favour to the interest of one against the other. On these grounds, the solution to the dispute is based on equity; neither of the parties should exert power or domination over the other. In order to be effective, these ethical notions rely on the preliminary condition that both parties give their consent to the mediation process and, further, that they take ownership of it. Are these conditions met in VOM ? There is no global answer. Some of the schemes do their best to reach these goals (especially those which are sufficiently independent from the prosecutor’s office). There is a major issue with the difference of status between offender and victim: it may be overcome if the mediator does not consider, during the process, the separate status of each party but rather treats them as responsible citizens with the capacity of solving the problem they are faced with. But in many cases, these principles are sacrificed to the requirements of penal action and the common sense of moral values: the offender should be treated as such and the victim should be granted benevolent consideration. There is, of course, a more general question about the reality of the consent of the offender in the case of a referral procedure avoiding 10 11

See for example the chapters on VOM in Luxembourg and Italy in this volume. See for example Bonafé-Schmitt (1992), Guillaume-Hofnung (1995).

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sentencing (and even of the victim if she/he wants some compensation for the damage). Also, several questions arise as to the value of mediation when aimed at offenders aged under 18: Given that the youth cannot give his consent because he does not have full legal responsibility, what is the position of his parents in the mediation process? Are they involved on the basis of the offence (for which they bear no legal responsibility) or on the basis of its civil consequences (the corresponding value of the damage)? Can neutrality and impartiality be maintained on this basis, especially considering the discrepancy of age and social status between the victim and the offender? These questions cannot be fully answered from within the doctrine, which is only concerned with adults: from its point of view, young offenders should benefit from reparation referrals since mediation comprises no educational element to deal with the age issues. If parents are to act as representatives of the young person, it can only be on grounds of the compensation element of the incident. The reality of how these situations are dealt with is of course, in many cases, significantly different.

4.2

Competencies and practice

Beyond the formal principles, it is necessary to take into account effective practice in the various modes of implementation of penal mediation and reparation for young offenders. The following points are drawn from two separate surveys carried out under the author’s supervision, that reflect on the practical implementation of these two schemes. The surveys do not only give an account of the various practices and the deviations from the doctrine but also look at the tensions that underpin the choices made by the individuals (e.g., mediators, reparation workers) or by local agencies in this matter. 4.2.1

Reparation Orders

ROs are sent to the relevant service either by the prosecutor or the judge, who in most cases leave significant discretion to the professionals in charge to define the precise contents of the measure, though some magistrates seem to want to intervene in this process. Our observations show that the general process is similar amongst the various agencies that carry out RO. This is due to the precise policy and guidelines published by the national agency. Three steps can be identified in the process. The first step consists of an assessment of the juvenile, covering her/his personal situation and the nature of the offence. Parents are generally invited to participate. The education agent may in this way assess the

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capacity of the young person to participate in a reparation process. She/he is also liable to report on specific causes of the juvenile’s misbehaviour (e.g., mental pathology, severe educational deficiencies, sexual or physical abuse, etc.). During this first interview, the young person and her/his parents are told the general principles of the measure and asked if they agree with them. If they agree, they move on to the second step which consists of a series of interviews with the young person (generally without his parents this time) to prepare him/her for the reparation activity. The purpose of this phase is to encourage the juvenile’s understanding of the negative value of his offence and to work out a positive outcome by choosing a relevant activity. Such an activity is likely to restore his own self-esteem and his relationship with the local community. This choice is made in the dialogue between the two. The juvenile proposes a series of possibilities and then gets in contact with the intended beneficiaries of the activity. The social worker guides him in this choice by advising and approving. The third step – the activity itself – is not to be considered as “work” but as a valuable “achievement” acknowledged as such by the beneficiary who may be the victim her/himself – whether a private citizen or a public or private organisation – or another organisation which takes on the supervision of such an activity. This may be public services12 (34% includes fire brigade, police, local authority’s technical services, etc.), charity organisations (26%), community services (12% including old people’s home, public library or cultural centre, sports club, etc.). If the activity is carried out within such a framework, someone selected from the staff of the organisation will supervise the young offender and will contribute to the final assessment with him/her, the education agent and sometimes the parents. The purpose of this session is to assess how the young person benefited educationally from the whole process, in terms of restoring a relationship with the community and understanding the value of law-abiding behaviour. It is important that she/he should identify and acknowledge them explicitly and the professional provides a written report to the prosecutor or the court on this basis, before the whole procedure can be concluded. In some specific cases (15%), the activity consists of pedagogical seminars which the young offenders attend: this is especially effective for driving offences and drugs misuse. 4.2.2

The role of the victim

Victims are rarely involved in the activity. This occurs only in about 10% of the cases in our sample. There are several reasons for this. First, there 12

The following percentages refer to our survey carried out on a wide sample.

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might not be any clearly defined victim or it may be a community, e.g. jointownership in collective housing. Secondly, the victim may be a large private or public organisation, also quite anonymous and not a proper victim from a psychological and social point of view (merely from a legal and economic one). Thirdly, the victim might be illegitimate in the sense that he or she is also not a law-abiding person, especially in the cases of conflicts arising between people both involved in an illicit activity. The fourth possible (and perhaps the most frequent) reason, is that the victim is not willing to participate in the reparation process and refuses to have any further contacts with the offender. Also, a special situation arises when the victim is himself a juvenile. His participation in the reparation programme poses a set of problems from legal, educational or merely practical perspectives. The two latter impediments could be easily overcome if a proper mediation process was to be commenced by the professional. Social workers in charge of ROs acknowledge that they do not have appropriate competency in the matter and therefore cannot bring the victim to accept participation in the reparation process. But they also tend, on the other hand, to consider that the victim does not play a major role in the reparation when taken as an educational tool. Hence, this lack of competency does not appear to them as a gap in their intervention repertoire. The issue of the participation of the victim in the reparation implementation is a matter of dispute between educational services and prosecutors’ offices. The latter tend to consider that victims ought to be more systematically involved in reparation activities so that they can be aware of the efficiency of judicial action. For this reason, it seems that the presence of the victim in the reparation process is becoming more common, not so much as a beneficiary of the activity but at least in terms of receiving apologies and information about the outcome of the process for the young offender. This option can be considered as a compromise made between the demands of the prosecutors and the professional education standards designed by social workers for reparation programmes. Reparation consists then of a combination of shuttle diplomacy mediation and reparation activity performed for the benefit of a third party. 4.2.3

VOM for juveniles: practices

As mediation for under 18s is not explicitly considered by the law, there has been no official monitoring of its practices. They depend merely on local initiatives and it is quite impossible to know, without a specific survey which has not yet been undertaken, what really takes place within the different mediation agencies throughout the country.

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In the survey that we carried out several years ago, it clearly appeared that, when mediators were in charge of cases involving young offenders, they would undertake a different kind of mediation than that involving the adults. This is partly due to the presence of the parents acting as responsible adults and partly due to the reference to the educational requirements. From what we could observe, the proper mediation process is subordinated in favour of a didactical session, which insists on the unlawfulness of the behaviour and on the negative consequences for the victim. So, the latter is asked to tell what damage he has undergone due to the offence. In these conditions, the process appears rather like a “minicourt” (according to the words of one of the interviewed mediators) than a genuine mediation. The neutral and impartial position of the mediator which the official doctrine regards as the key to effective mediation is utterly absent in these situations. The intervention is instead based on the inequality of status between the offender (and his parents) and the victim. The mediator represents the interests of the state (by mentioning the law) and those of the victim. The whole process can be compared to a cautioning session where the victim can state the nature of the damage and where he can get financial compensation from the parents13. Such a deviation from the ideals of mediation seems to result from both the absence of clear guidelines for mediation including for juveniles and the differential status of the different stakeholders. The juvenile has limited responsibility, the parents are not directly involved in the offence and the victim seeks compensation. This is the situation that mediators have to manage: combining the law enforcement and the compensation goals.

5.

THE MAIN ISSUES IN THE FRENCH SYSTEM

The main distinguishing feature of the French system of VOM with regard to juveniles lies in its duality. Two possibilities exist in its implementation, one comprising a full educational function (reparation) and the other one operating through the presence of the offender’s parents (penal mediation). Before 1993, the experimental scheme (named médiationréparation) was not separated in two different kinds of penal measures. This distinction has stemmed from the question of the specificity of the law relating to minors in France. Two aspects had to be taken in account here: the age of legal responsibility and the requirement for educational support to be provided. This question can be addressed at international level: do young 13

An important and often understated aspect of the mediators’ work consists in advising the stakeholders about the possibilities that their insurance policies offer them and how to apply.

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people have the full capacity to understand, accept and sustain a mediation process without the help or protection of a professional youth worker? The question can be posed on the grounds of the (in)equality between an adult victim and a young offender. Is the former not in a position to take advantage of his ascendancy over the young person and thus go beyond reasonable demands? Does she/he have sufficient autonomy of action to negotiate a fair agreement? Can she/he understand the full significance of the agreement and not see in it some form of humiliation that might encourage future misbehaviour? Two kinds of answers are provided for this question in the French system by the separate schemes. In the first one, VOM for minors, relies on the offenders’ parents willingness to take part in the agreement. The mediation process, in this case, deals mainly with the damage done to the victim and how she/he may be repaid by the offender’s parents. Such a process does not provide a genuine restorative dimension. The social transaction concentrates exclusively on the material dimension and not on the reactivation of the social link between the juvenile, the victim and the community. Moreover, the absence of clear national policy and guidelines for VOM aimed at minors stresses the tendency towards a financial rather than psychosocial agreement. The second scheme, reparation, is founded primarily on a restorative and educational basis. The pecuniary aspect is considered as secondary and dealt with by the insurance company. The restorative dimension of the process is favoured where the juvenile is brought to understand and acknowledge the rules and the values of the community s/he shares with the victim. And beyond this, it aims to make him/her able to understand the sense of the law and of his/her wrongdoing. So, in this process of “reparation”, the focus is not placed on the victim, who does not always play a part in it. In many cases, the reparation activity is intended to profit the community as a whole. This tendency seems mainly due to the educational focus of the scheme, undertaken by the special education agency or youth professionals depending on the judicial administration. A question is therefore raised about the possibility of combining these two, victim-oriented and educational goals. The latter should not be left out if one considers the data from the surveys mentioned above, regarding the social profile of the young offenders committing their first petty offence. It is clear that the context of social difficulties needs to be taken in account. An important issue about diversion measures has been considered by the experts: in the absence of a diversion system (mediation, reparation, cautioning), what would happen to young these offenders? Would they remain the responsibility of the police and community cautioning or, alternatively, would they be handed to the judge and educational measures

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which he has at his disposal? It is likely, considering that the majority of juveniles involved are first offenders, that the first option is the most likely one: young offenders who formerly would have been cautioned by the community (i.e., big stores) or the police tend to get referred to the prosecutor’s office via a complaint. Hence, mediation – as does other referral measures – appears rather as an “institutionalisation” (via the prosecutor’s office) of the resolution or regulation of petty offences than a community oriented process. Such a process of institutionalisation of dispute and offence resolution is augmented by the profiles of the pseudo-lay mediators and the cautioning agents who are defined more as official agents than ordinary citizens representing the community, as is the case in community mediation, for example. Looking at the rationale behind the prosecutor’s choice of the various possibilities she/he has at hand in this diversion system, it seems that the decision depends rather on the characteristics of the offence and its consequences (whether there is victim or not, his/her status, the importance of the damage, etc.) than on the issue of public order or educational issues. Significantly, the great majority of prosecutors do not meet young offenders or their family before taking their decision which relies only their reading of the file and the recommendations of the police. The young offender’s intentions and his social and psychological personality are not taken in account at all whereas they are an essential dimension in the “classic” juvenile justice approach. These remarks tend to strengthen the idea of an unequal process concerning penal mediation addressed at juveniles in France: the victim and the damage seem to be the primary consideration in the state policy of the prosecutors’ offices and therefore in the intervention of the mediators. The specific characteristics of the juvenile – seen an adult and a citizen but with an incomplete education and sense of personal responsibility– are often underestimated if not ignored. Reparation orders have developed as an alternative to this tendency, focusing on the relationship between the juvenile, the offence and the context of its occurrence. But then, the victim and the damage are not put at the centre of the restorative process.

REFERENCES Bonafé-Schmitt, J.-P., 1992, La médiation, une justice douce, Syros, Paris. Bonafé-Schmitt, J.-P., 1998, La médiation pénale en France et aux Etats-Unis, LGDJ Librairie générale de droit et de jurisprudence, Paris. Faget, J., 1997, La médiation. Essai de politique pénale, Erès, Toulouse. Guillaume-Hoffnung, M. (1995), La médiation, PUF Presses Universitaires de France, Paris.

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Milburn, P., 2001, La réparation pénale à l’égard des mineurs. Eléments d’analyse d’une mesure de justice restaurative, Mission de recherche, droit et justice, Paris. Milburn, P., 2002, La médiation. Expériences et compétences, La Découverte, Paris. Ministère de la justice, 2003, Annuaire statistique de la justice, Paris. Rawls, J., 1971, A Theory of Justice, Harvard University Press, Harvard. Vaillant, M. (ed.), 1994, De la dette au don. La réparation pénale à l’égard des mineurs, Editions ESF, Paris. Vaillant, M., 1999, La réparation. De la délinquance à la découverte de la responsabilité, Gallimard, Paris.

Chapter 15 VICTIM-OFFENDER MEDIATION AND YOUTH OFFENDERS: THE ITALIAN EXPERIENCE Anna Mestitz and Simona Ghetti* -

1.

INTRODUCTION

In the 1990s Victim-Offender Mediation (VOM) practices with youth offenders arose spontaneously in the Italian juvenile criminal justice system. Thus, the development of the first VOM units, groups and centres was undertaken in the framework of the youth criminal proceeding. The idea of introducing VOM as a new approach to youth crime originated in the wave of innovation brought by the introduction of the médiation pénale1 in France. The French experience strongly influenced a small group of Italian juvenile magistrates2 in Turin (close to the French border and culture), who became the promoters of VOM in Italy (Bouchard and Mierolo, 2000). The results of a long-term study on the application of probation in a Southern juvenile court in the period 1991-96 showed that the Restorative Justice (RJ) model was used within the institute of probation (Mestitz and Colamussi, 2000)3. In fact, RJ strategies were part of the probation projects for the large majority of the sample (81.1% of 190 probation cases). Direct

* Our special acknowledgements to Prof. Louann Haarman (University of Bologna) for her precious help in reviewing the translation of this chapter. 1 Like in French, the Italian translation of VOM is mediazione penale. 2 It should be emphasized that, like in France, the term “magistrates” (magistrati) includes both judges and public prosecutors who share the same bureaucratic recruitment (by means of national competitions), training and career. 3 The research was carried out in Bari, an important South-Eastern city, by analyzing the court social service’s records.

321 A. Mestitz and S. Ghetti (eds.), Victim-Offender Mediation with Youth Offenders in Europe, 321-345. © 2005 Springer. Printed in the Netherlands.

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mediation through victim-offender meetings began to be applied (9.1% cases) but, in most cases, the mediation was formal and indirect4. An exploratory study on mediation experiences stated that until 1993 social workers were the only professionals conducting mediation, but they were not trained for the job (Baldry, 1998; Baldry, De Leo and Scardaccione, 1998). Some articles published in the period 1992-1994 opened the new scenario for VOM but mainly two articles published in the same 1994 issue of the official journal of the juvenile and family magistrates association were crucial to the implementation of VOM because general operative guidelines were included (Bouchard, 1994; Juvenile magistrates of Turin, 1994). In particular, an article by magistrates of the juvenile court and prosecution office of Turin was quite unusual because the authors did not sign the article with their own individual names but with the collective name “Juvenile magistrates of Turin”5. The article proposed not only the guidelines and the norms to apply RJ strategies, but also declared the creation of a “mediation section”6 inside the juvenile prosecution office in Turin. It also established that the lay judges in service at the Turin juvenile court were collaborating as “experts” with the prosecutors and both court and local social services in the new “mediation section”. If one considers the journal in which the article was published, the absence of the authors’ names and the fact that the authors were probably the most representative and authoritative group in the juvenile justice arena, the article may be considered as a true manifesto for the application of RJ and VOM in Italy. Starting in 1995 with the group in Turin, VOM groups gradually and spontaneously arose within other juvenile courts and prosecution offices. In 1997 five of these mediation groups (hereafter “mediation centres”) operated on the national territory. In the same period mediation was also implemented to address different kinds of conflicts, such as parental disputes in divorce and separation, and conflicts among students at schools or among neighbours (mediation in these circumstances is generally defined as “social mediation”). The first two empirical studies on VOM, conducted in 2002-2003 by the authors of this chapter, showed that the present diffusion of VOM still appears quantitatively scarce and some relevant problems must be faced to 4

The two main restorative practices were: symbolic financial compensation to charity and welfare institutions, churches (51.3%), and writing formal letters of apology to the victim (35.7%). 5 The names were replaced by this meaningful premise: “We present a document prepared by the magistrates of the juvenile court and prosecution office of Turin. It proposes a new path for the juvenile criminal process through the so-called victim-offender mediation and the reparation of damage caused by the crime” (Juvenile magistrates of Turin, 1994: 26). 6 In Italian: Sezione di mediazione.

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extend the use of mediation in Italy7. Information presented in this chapter is largely based on the findings from both studies.

2.

THE JUVENILE JUSTICE SYSTEM AND THE DEVELOPMENT OF VOM

The Italian juvenile justice system is quite separate from the adult system. As VOM is part of the juvenile criminal justice system and is included among the responsibilities of the courts and prosecution offices, a brief overview of the institutional framework will be useful to understand the practice of VOM. VOM may result from the juvenile offender referral made by either juvenile prosecutors or judges who are responsible for dealing with offences committed by juveniles from 14 to 18 years old. Referrals are made to youth court social service or to public mediation centres (which generally have a formal agreement with the juvenile courts for the provision of mediation).

2.1

The juvenile justice system

The 1st level of juvenile jurisdiction includes 29 juvenile courts8 (located in the main provinces) and a corresponding number of prosecution offices9. The decisions of both the juvenile courts of 1st level and the “juvenile sections” in the Courts of Appeal10 are made by panels of varying numbers of professional and lay judges11. The juvenile justice system is a very complex network, involving many subjects and institutions both internal and external to the administration of justice: 1) court social services12 and correctional institutions13, which depend

7

Different questionnaires were administered to three professional groups: judges, public prosecutors and mediators (Ghetti, 2004; Mestitz, 2004a; 2004b). For some preliminary results of these studies see: Mestitz and Ghetti (2002), Ghetti and Mestitz (2003). 8 Juvenile courts (Tribunali per i minorenni) deal with civil, criminal and administrative matters. The interconnections among civil, criminal and administrative measures, provided for by law, are a functional feature of the juvenile courts. 9 Procure della Repubblica per i minorenni. 10 Sezioni minorili di Corte d’appello. 11 The lay judges, as in other European countries, are recruited among “experts” in disciplines relevant to juvenile phenomena, such as psychology, criminology, sociology, psychiatry etc. 12 Uffici di servizio sociale minorile. 13 The juvenile court, the prosecution office and the court social service are generally located in the same buildings. Often the juvenile correctional institutions are also located there.

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on the Ministry of Justice (MJ); and 2) groups and subjects external to the administration of justice, such as the police, local social services, volunteer associations and communities. Mediation centres can be added to these groups. In criminal matters both court and local social services14 collaborate with juvenile courts and prosecution offices to carry out such tasks as collecting information on minors, assisting minors before the court, executing the sentences, serving as probation officers and, at times, as mediators as well. Cases are reported to the prosecution (by citizens, the police, welfare agencies etc.) and action must be taken because case handling is governed by the principle of mandatory criminal action. This entails that prosecutors cannot dismiss any crime that has been reported to their office. Only the judge can do so. Generally juvenile criminal cases are sentenced by the judges of the preliminary investigation (JPI) and/or preliminary hearing (JPH). Only the most serious crimes proceed to trial. Criminal competence of juvenile courts is concerned exclusively with crimes committed by offenders aged 14 to 18 (offenders less than 14 cannot be charged)15. Attention is placed almost exclusively on the offender (and not on the victim) because the system is based upon an educational and diversionary approach comparable to other European nations (France, Germany, Austria, etc.). Punishment is considered as a last resort and the treatment of offenders is inevitably unequal across courts because it depends on what the single magistrate (prosecutor or judge) considers the child’s best interest. Lemert (1986) rightly stressed that the influence of the Catholic culture and values on the Italian juvenile justice system is very strong. In this frame the shared beliefs underlying RJ and VOM were easily accepted as they stem from a central Catholic value, that of “social solidarity”. Two central bodies - the Higher Council of the Magistracy (HCM)16,) and the Department of Juvenile Justice (DJJ) of the Ministry of Justice influence directly the judicial organisation because: 1. the HCM makes all decisions concerning the magistrates’ recruitment, training, career, discipline and distribution on the national territory. It is also responsible for the appointment of lay judges (whose candidatures are proposed by the Presidents of the juvenile courts);

The correctional network includes 25 centres for temporary placement of offenders following their arrest and 17 detention institutes. 14 The social service units of the local governments and/or administrations (Servizi sociali territoriali). 15 Before charges are made courts must evaluate whether each offender is responsible and in full possession of the “capacity to understand and consciously act” (capace di intendere e volere). 16 Consiglio Superiore della Magistratura (CSM).

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2. The DJJ is responsible for the recruitment, training and career of the nonjudicial personnel (i.e. non-magistrates) such as court social workers and other personnel serving in the juvenile correctional institutions. It manages the nation-wide budget and provides for the organisation, technologies and other resources needed by a broad network of institutions: 29 juvenile courts, 29 juvenile prosecution offices, 29 court social services units (one of them operates in each juvenile court), and 17 juvenile correctional institutions operating on the national territory. The DJJ includes the central unit (in Rome) and 11 interregional offices (named “Centres for juvenile justice”) in charge of the coordination of both court social services and correctional institutions displaced in their territory. The DJJ also has a section carrying out studies and research on the functioning of the juvenile justice system. Magistrates perform a dominant role not only in the courts and prosecution offices, but also in the two central bodies (HCM and DJJ)17. Moreover, they lead all groups which collaborate in the working of the juvenile justice system. Research showed that the characteristic centralization based on the role of these two bodies leads to a high degree of bureaucratisation, which negatively influences the effectiveness of the system and its ability to change18.

2.2

The development of VOM on the territory and the “letters of intent”

Not surprisingly, given this organisational set-up, the DJJ had a significant role in the early development of VOM19. Nevertheless, the DJJ did not follow a clear public policy and did not exert its role as proponent of new norms with respect to VOM. At present, after a decade since the first experiences, VOM is still qualified with the adjective “experimental” and no norms regulate it. In other words, the development of VOM on the territory spontaneously grew bottom-up mainly promoted by a small group of juvenile magistrates, lay judges and social workers, who played an active role by stimulating and organizing the foundation of VOM centres. Two indicators confirm this pre-condition for the creation of mediation centres:

177

With reference to different fields these phenomena have been described by: Zannotti (1995), Guarnieri (1995), Di Federico (1989; 1995), Fabri and Contini (2001). 18 See Mestitz (2000), Carnevali and Di Cocco (2001). 199 It is demonstrated by the first conference on juvenile VOM organized in Rome by the DJJ (Ufficio Centrale Giustizia Minorile, 1999) and by the fact that the DJJ has relied on its web site to implement and encourage the experimental application of VOM (see: area penale in the minori section in www.giustizia.it).

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1. The first five VOM centres were located inside the buildings of the juvenile courts and prosecution offices (i.e. Turin, Bari, Trento and Milan) or in the same location as the youth court social service (i.e. Catanzaro). Some years later all those VOM centres have changed their status and/or location as funding has become available from local governments20. Thus at present they have gained autonomy with respect to the past. 2. Juvenile courts and prosecution offices signed special agreements as “letters of intent”21, with local governments and other institutions in order to provide funds and personnel to VOM centres. The formal “letters of intent” were always signed by juvenile courts and prosecution offices, frequently by one or more of the three local governmental bodies (municipality, province or region), by the court social services and the interregional organizational units of the DJJ, and sometimes by the local social service as well. Reliance on letters of intent quickly became a sort of prototypical practice to found new VOM groups. These documents are important in that they allow for funding and providing for human resources to the mediation centres. In this way, employees in a variety of institutions or administrations (Ministry of justice, municipality, province or region) may become part-time mediators at the disposal of the VOM centres. As mentioned above, the first Italian VOM centre started its activity in 1995 in Turin. Following this example, eight new VOM centres were created in Trento, Catanzaro, Bari and Rome in 1996, in Milan in 1998, in Sassari in 1999, and in Cagliari and Foggia in 2000. The mediation centre in Rome was closed in 1999, thus at present there are eight centres.

3.

THE LEGAL FRAMEWORK FOR THE APPLICATION OF VOM AND THE PRACTICE

Since 2000, Italian justices of peace (lay judges) are allowed to use VOM with adult offenders22 but rarely do they send the cases to mediation centres. The first local mediation centre for adult offenders referred by the justice of peace was founded in Bolzano in 2004. 20

For example up to 2000 the VOM centre in Turin was named Ufficio Mediazione and was located in the juvenile prosecution office; then it was renamed Centro mediazione penale minorile di Torino becoming an institution of the municipality. The mediation centres in Trento, Bari and Catanzaro followed the same road. 21 Protocolli d’intesa. Some of these documents were published in the journal Minori giustizia n. 2/1999. 22 Decreto del Presidente della Repubblica (hereafter DPR) 274/2000.

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In the juvenile justice system however, notwithstanding the lack of norms, about a dozen groups are working on VOM. It should be stressed that no legislation on VOM with youth offenders has been passed in the last 10 years by any Government regardless of its political position. The reason is that the lobby of magistrates so far prefers this state of affairs and is able to strongly influence the legislative process due to its “high contractual power” (Di Federico, 1998: 381). On the other hand, the absence of norms permits a large freedom: those who want to apply VOM do so, whereas those who do not like this strategy do not have to apply it. At the moment, the current political orientation on VOM with youth offenders is to include the mediation centres in the framework of public services and thus disregard private and voluntary initiatives. At least this is the orientation outlined in the two parliamentary bills currently pending that were proposed by the left-wing parties23. Although the code of juvenile criminal procedure24 does not include a specific provision for VOM, prosecutors and judges may use different articles to refer cases to the VOM centres25. Three recent independent studies converge on the finding that public prosecutors refer the large majority of cases during the investigative phase of the proceeding26. Prosecutors mostly rely on the article providing for “personality assessment”27 which entails an investigation of the family and social background of the juvenile offenders. Data in Table 15-1 confirm that

23

The first bill (proposed in 2001 by Rifondazione Comunista and resubmitted in 2003) provides for an optional application of VOM similarly to the French and Austrian legislations. It stresses the need for a public service of mediation and provides for creating a mediation centre for each juvenile court. The second bill (proposed in 2002 by the party of Democratici di Sinistra) integrates the norms currently used by magistrates to apply the VOM in order to explicitly introduce the mediation. Namely VOM is foreseen within the provision for personality assessment (article 9 DPR 448/88), allowing the public prosecutor to refer the case to mediation centres during the preliminary investigation. Moreover, the judge can use probation (article 28 DPR 448/88) to refer the case to mediation centres. As in the above mentioned bill, the need for a public service of mediation is stressed. The new aspect is that court social services must provide for the creation of new agencies for VOM external from the juvenile justice network. If these agencies were not created VOM must be undertaken by court social workers themselves. 24 The norms for penal procedures within the juvenile judicial system are included in the DPR 448/1988. 25 For a recent overview of the legislation concerned with VOM see Patané (2004). 266 According to the directors of mediation centres 74% of cases are referred by public prosecutors (Mestitz, 2004b); according to court social workers and mediators the percentage of cases referred by public prosecutors is 73% (Mastropasqua and Ciuffo, 2004); finally, according to magistrates’ perceptions, public prosecutors deal with twice as many cases as judges (Ghetti, 2004). 27 Article 9 DPR 448/88 (above mentioned).

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in 2002 the wide majority of referrals to VOM were made by public prosecutors using the legal provision on “personality assessment”. Table 15-1. Referrals to mediation centres in 2002 by referring authority and norms used. personality other total Referring authorities assessment probation (including missing) public prosecutors 225 1 10 236 judges (JPI/JPH) 22 32 9 63 court social services 6 8 4 18 other (including missing) 1 1 2 4 total 254 42 25 321 Source: modified from Mastropasqua and Ciuffo (2004: 128).

Both mediation centres and youth court social services may carry out the investigation requested by the “personality assessment” norm. In other terms, court social services may autonomously carry out mediation as well as refer the case to a mediation centre as a part of the “assessment”. This norm does not include any provision concerned with VOM, but its use in the practice confirms what Lemert argued many years ago (1986): Italian magistrates rely on the available norms and extend their use to implement measures not covered by the current legislation. As mentioned in the previous section, prosecutors cannot dismiss the cases but they must ask the judge to do so. Thus once mediation is concluded, the case is sent again to the prosecutor who asks the judge to drop the case if the VOM has ended successfully. If the agreement between victim and offender was not reached, the case follows the normal judicial path. As far as judges are concerned, the most commonly used norm when attempting VOM is that providing for probation28 (Table 15-1). Unlike other legislations in which probation is a real sentence, the institute of probation in the Italian juvenile justice system results in the suspension of the trial until a later time at which a sentence will be given. During the time of suspension, the juvenile may participate in programs or projects aimed at rehabilitating him or her and/or guaranteeing a positive outcome of the sentence. Thus the judge may in fact refer the case to the court social service and/or to the VOM centre with the aims of conciliation, reparation or mediation. At the end of the period of probation, if the outcome of the mediation is positive, the judge may sentence the case with judicial pardon or dismissal because the criminal conduct is considered negligible29.

28 29

Article 28 DPR 448/88. According to article 27 DPR 448/88 the case is dismissed when the crime is negligible.

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It should be added that the court social service may carry out mediation and/or refer the case to the mediation centre based on an autonomous evaluation of the appropriateness of VOM as a part of the probation project. Nevertheless, cases referred by social services are a minority (Table 15-1). In concluding this section, we observe that a debate currently exists between those who advocate the introduction of specific norms providing for mediation - mainly the academy (Patané, 2004) - and those who do not consider new laws necessary (mainly juvenile magistrates). Results from a recent investigation (Ghetti, 2004) revealed that the majority of a sample of juvenile judges and prosecutors thought that norms were not necessary to implement VOM for at least two reasons. First, participants described being comfortable in relying on existing norms to provide for VOM, even though such norms are not specifically meant to regulate VOM; second, it appeared that participants appreciated the flexibility deriving from the lack of specific norms. However, a small minority of magistrates considered that the lack of norms was problematic, not necessarily because one could not otherwise implement VOM (as noted above), but because it indicates a limited significance of this measure. One additional and important implication of the absence of norms is that it may perpetuate the limited role exerted by victims in the penal proceeding. Thus, the introduction of new legislation can help to overcome this limitation. The victim’s role is very marginal in the Italian legal culture (Patané, 2004). This is particularly true in the juvenile jurisdiction in which the minors’ “educational needs” prevail over punishment. This results in a series of exceptions and guarantees; for example, penal trials involving juveniles must be held behind “closed doors” (no public is admitted in the court room); the victim’s civil action aimed at obtaining compensation for damages cannot be brought in juvenile criminal proceedings. This provision (obviously) strongly limits the victim’s participation in the juvenile trial: if there is no possible way to seek compensation for damages, there would be little interest in participating. In addition to the well-known difficulties encountered when attempting to gain the victim’s assent to the mediation, the negligible role of victims in our country may further discourage their participation. One final implication of the absence of norms is the lack of specific codes or standards of ethics regarding mediation: so far neither mediators, nor judges and public prosecutors have implemented such rules.

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ORGANIZATION AND WORKING OF VOM CENTRES

In 2002 eight local mediation centres were operative: three were located in the North (Turin, Milan and Trento), three in the South (Foggia, Bari and Catanzaro), and two in the island of Sardinia (Cagliari and Sassari). A DJJ survey carried out in 2002 (Mastropasqua and Ciuffo, 2004), shows that four new “letters of intent” were signed to create new mediation groups within the court social services of Bolzano (North), Ancona (Centre), Salerno and Palermo (South)30. At this writing, however, the group in Ancona is not yet operative. To sum up, only 11 juvenile judicial offices (out of 29) currently have the possibility to refer cases to VOM centres and groups. In fact the distribution of centres does not reflect the actual need but is the result of a random growth. For example large juvenile courts such as those in Rome and Naples have no mediation centres, while that in Bari has two centres (Bari and Foggia) to refer cases for mediation; in Sardinia there are two mediation centres (one for each juvenile court) while in Sicily there is one for four juvenile courts. In this section we will consider only the first group of eight local centres because the new VOM groups operated by the court social services began their activity very recently. Instead the first eight centres function on a stable basis since some years and have their own offices, organizational set-up, leaders, human and financial resources etc. It should be added that five centres seem to work exclusively with VOM (Bolzano, Milan, Salerno, Palermo and Turin), whereas others also carry out mediation in other fields. According to Mestitz (2002) almost all mediators carry out VOM (92%); a further 34% of them also apply family mediation and 24% other kinds of mediation. Specifically, five centres practice family mediation in addition to VOM and three also operate school and community mediation.

4.1

Financial resources

The main sources of funding for the eight mediation centres are the local governments, i.e., municipality (city administration), province, and region. These sources are not mutually exclusive as most centres rely on multiple sources of funding (Mestitz, 2004b).

30

Information was collected at the beginning of 2003 from the 11 Centres for Juvenile Justice of the Ministry of justice spread on the national territory (Mastropasqua and Ciuffo, 2004).

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Local governments periodically allocate funding for the activities planned at the mediation centres (e.g., administrative personnel, phone, etc.). However, the regional governments appear to be the main sources of funding both in the Northern and Southern regions. As mentioned above, the participation of local governments in funding the VOM centres was achieved by means of formal “letters of intent” signed with juvenile judicial offices (prosecution offices, courts) and court social services. This procedure permits local governments to provide for financial and human resources of the mediation centres. The involvement of diverse public agencies in the funding of the mediation centres is a common model in Italy as evidenced by the fact that accommodation for the centres was offered by the municipality to the centres in Cagliari, Foggia, Milan, and Turin; by the province to the centres in Bari, Trento and Sassari; and by the region for the centre in Catanzaro. In general, the practice of VOM appears strongly institutionalised, as suggested by the direct involvement of public agencies, and the lack of community-operated services. The Ministry of justice does not provide monetary support for VOM activities31. Its participation in the expenses for the practice of mediation is mainly indirect, that is, limited to the provision of personnel in the mediation centres as court social workers who may be appointed there part-time. Although we cannot provide reliable estimates of the annual costs of the mediation centres - and thus we cannot directly evaluate the extent to which VOM centres receive adequate funding to support their activity - we are aware that one central problem is the lack of certainty regarding the continuation of funding (and funding policies). Because VOM centres depend on local governments, they will receive funding depending upon the level of priority VOM maintains with respect to these agencies’ public policies. This uncertainty prevents systematic planning and reduces the motivation of the personnel involved.

4.2

Human resources

In 2002 the total number of mediators in the eight mediation centres was 59 (Mestitz, 2004b). The DJJ survey, which also considered the new groups of court social workers, indicated 91 mediators (Mastropasqua and Ciuffo, 2004). About 50% of the mediators currently operating in the VOM centres and groups (46 out of 91) are employed by public agencies, with a majority of such employees (27 out of 46) being assigned to the mediation centre by the 31

In the early stages of the introduction of mediation, the Ministry funded some training activities for the first groups of mediators in Turin and Milan.

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municipality, province or region. A sizeable minority (24%) of mediators are employed by the Ministry of justice and work part-time in the mediation centres. Only a minority of mediators are volunteers. According to the coordinators of the eight mediation centres, the centres were created on the basis of voluntary initiatives and the individuals who promoted them in their initial stages often ended up playing the role of formal and informal leaders (Mestitz, 2002). The analysis of the leadership in the eight mediation centres at the time of their foundation shows a close connection with the juvenile courts and the court social services. Four coordinators were at the same time lay judges in the juvenile courts or in the juvenile sections of the court of appeal (Cagliari, Sassari, Bari and Milan). The remaining four coordinators were social workers, three of them in the youth court social services (Catanzaro, Trento and Turin) and one in the local social service (Foggia). In 2004, the coordinators were five social workers (four in the local services and one in the court social service) and three juvenile lay judges. The involvement of many mediators “borrowed” from different institutions may be problematic. In fact it causes some coordination difficulties among the mediators, and might prevent the formation of cohesive groups as most mediators only spend part of their working hours in this capacity. In addition, to ensure that the VOM centre is open as many hours per week as possible, the amount of time during which multiple mediators are concurrently working at the centres tends to be limited, considerably reducing the possibility that the mediators meet, coordinate, and plan common activities as a group. Nevertheless, as evidenced in Milan32, a strong cooperation may sometimes result from shared beliefs and motivations, from a common training and from a long period of collaboration in the centre.

4.3

The mediation process

The communication processes between VOM centres and other institutions are illustrated in Figure 15-1. Specifically, the subjects and operations involved, as well the communication flow among institutions, are summarised. The figure shows that when a crime is reported to the prosecution office, generally by means of the police, the public prosecutor may take one of three actions: i) ask the judge to dismiss the case; ii) refer the case to the judge of preliminary investigation in order to continue the normal judicial process; iii) refer the case to the court social service or to a mediation centre. 32

Results from in depth interviews conducted by Anna Mestitz.

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PUBLIC PROSECUTOR OFFICE the offence is reported by police, citizen etc.

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JUDGE OF THE PRELIMINARY INVESTIGATION

Both public prosecutor and judge may refer the case for VOM to COURT SOCIAL SERVICE or to an EXTERNAL MEDIATION CENTRE where existing

COURT SOCIAL SERVICE carries out the mediation or asks a mediation centre to do so

MEDIATION CENTRE carries out the mediation

PUBLIC PROSECUTOR OR JUDGE mediator informs the magistrate whether the agreement was fulfilled or not. Only the judge can decide whether the case will be dismissed or not. Figure 15-1. VOM in the juvenile justice system: subjects, operations and communication flow.

The judge may then: i) drop the case, ii) make a sentence or suspend it by referring the cases to the court social service or to a mediation centre, iii) send it to the judge of preliminary hearing, who may sentence the case or send it to the trial judge (but this happens very rarely, only in very serious crimes). Thus, the mediation centre can be involved in different phases of the proceeding. The role of youth court social service is highly variable over the territory. Such service may be connected directly to the mediation centre or not. Sometimes the magistrates (public prosecutor or judge) refer the cases directly to the mediation centre without informing the court social service, other times the court social service itself suggests that the magistrates refer

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the case to VOM or else directly refer the cases (sent to the service by the magistrates) to the mediation centre. Finally, some court social services (where the new groups for mediation are working) may carry out the VOM directly. A recent survey showed that magistrates seem to rely on some common criteria in referring cases to mediation centres: the option “crime committed” was selected by 93% of a sample of juvenile magistrates from a list of several non-mutually exclusive possibilities (Ghetti, 2004; Ghetti and Mestitz, 2003). When participants were asked to further elaborate on the type of crime, all participants indicated crimes in which a victim was a clearly identified person. That is, regardless of whether the crime is against the person or property, one should be able to clearly define who was damaged by the offence. Further, 60% of those who believed that the type of crime was a key criterion further specified that a pre-existing relationship between victim and offender was a prerequisite for VOM, because they thought that it could only be advantageous if both victim and offender were invested in repairing the relationship that was compromised by the offence. In terms of the severity of the offence, there was general agreement that most of the offences were relatively minor, but 25% of the participants specified that offence severity does not compromise the possibility for referral. In addition, about 68% magistrates also reported referring cases for mediation when the social services so recommend. At the moment, however, we do not know what criteria social services use to recommend mediation, thus we cannot evaluate the implications of the use of this criterion. Finally, in a few cases, magistrates report that they are more likely to refer a case for mediation if the juvenile offender is at her/his first contact with the juvenile justice system (29%), and if she/he has not yet undertaken other rehabilitation programs. The reason behind the latter is the concern that juveniles may receive too many different messages if they are involved in several programs, causing them confusion and ultimately producing a disservice instead of offering help and support in the process of understanding their wrongdoing and its consequences. After a case is referred to a mediation centre, and the mediation is performed, the centre communicates the outcome of VOM to the magistrates, but there is no formal communication from judicial authorities back to mediation centres once the case is sentenced. In other words, there is no official channel through which mediators are informed of the outcome of the case, or of the use the judge made of the result of mediation. Indeed, this lack of communication may impact mediators’ job satisfaction. Results from our previous research showed a significant difference in job satisfaction between mediators who knew the sentences of the cases and those who did

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not know, or knew that the mediation had had no impact on the sentence (Mestitz and Ghetti, 2002). Currently, the only way mediators find out about the outcome of the case is through informal communication. For example, in a recent survey with magistrates (Ghetti, 2004), one judge reported that she meets with the head of the mediation centre to let him/her know about the outcome of the case. In addition, it is generally reported that if mediators ask for the sentence of the case, such information is provided. A few magistrates also noted that the role of the mediation process on the decision of the sentence is described during the hearing. Thus, mediators can learn about the role of their work at that time. Nevertheless, it is evident that communication is left to personal initiative, and magistrates are not always aware of the importance of communication with the mediation centres. To overcome the tendency of relying exclusively on personal initiative, the mediation centres and the judicial authorities in Cagliari recently stipulated an agreement to facilitate communication and information exchange. This remains, however, an exception. A few magistrates reported that in addition to the outcome of the mediation, they would have liked to know more about the mediation process itself. Mediators told them, however, that such information cannot be divulged in order to protect the privacy of the parties involved. (Ghetti, 2004). Although a few participants in the survey argued that they do not fully agree with the mediators’ perspective, they also appear to accept such limitation.

5.

REFERRALS, OFFENCES AND OFFENDERS

One way to gain knowledge on how VOM is implemented is to examine the number and the type of cases referred for mediation, and the extent to which cases were successfully mediated. Research findings concerning the number of cases referred to each mediation centre over a number of years of activity and whether or not an agreement between the victim and the offender was reached are reported in Table 15-2. In the last column the cases for which mediation was impossible or could not be applied are indicated. In commenting these results, first of all it seems important to stress that on average 29.7% of the total referrals to VOM are not carried out for different reasons, e.g., the victim and/or offender are not willing or available to meet, or an agreement has been autonomously reached by victim and offender. Secondly, it can be noted that agreement is reached on average in 75.8% of all cases of VOM carried out.

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Table 15-2. VOM dealt with by mediation centres from 1995 to 200133. VOM VOM Referrals Agreement Years No agreement carried centres to VOM reached out N %* N %* Bari34 1996-2001 222 n.a. n.a. n.a. 2000-2001 40 40 36 90.0 Cagliari Catanzaro 1995-2001 174 155 118 76.1 37 23.9 Foggia 2000-2001 13 8 6 75.0 2 25.0 1998-2000 120 75 62 82.7 3 4.0 Milan Rome 1997-1999 20 15 10 66.7 5 33.3 Turin 1995-2001 318 152 122 80.2 30 19.7 1999-2001 35 35 21 60.0 14 40.0 Trento 1995-2001 942 n.a. n.a. n.a. Totals Means 1995-2001 75.8 24.3 Source: Mestitz (2004b: 73).

VOM not carried out

N n.a. 3 19 5 53 5 166 n.a. -

%* 7.5 10.9 38.5 44.2 25.0 52.2 29.7

* Percentages of cases where agreement was reached or not have been calculated on the total of VOM carried out. Percentages of VOM not carried out have been calculated on the total of referrals to VOM. n.a. data not available

Moreover, we should note that there is a remarkable variability among different VOM centres. Whereas mediation was successfully conducted for 90% of all cases in the Cagliari mediation centre, and for 82.7% in Milan, this was true for only 60% of the cases in Trento. On the other hand the Turin centre shows the highest percentage of VOM not carried out (52.2%). Also the Milan centre shows a remarkable percentage of referred cases for which the mediation was not carried out (44.2%). The reasons for these differences among the centres are not clear. It is plausible that centres differ in the strategies used to approach and select victims and offenders, and that these different styles may result in different rates of agreement between victims and offenders to participate in the mediation. Or it may even be the case that the centres and/or mediators do not use analogous definitions of successful mediation. What is the percentage of cases referred to VOM of all those referred for prosecution? National statistical data are not available, but they are available for the sites in which VOM activities are developed. In 1997 the cases referred to the two mediation centres of Turin and Bari were 5.4% of all 33

34

The total of successful and unsuccessful mediations is different from that of juveniles referred to VOM centres in Bari, Cagliari, Milan, Trento, and Turin. For those centres, there were some VOMs in process at the time of data collection. Thus, although counted among referrals, the outcome was yet unknown. The coordinator provided only the total of 222 referrals and the following percentages: approximately 35% agreement, 35% no agreement, 30% not carried out.

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those referred to the juvenile prosecution offices of both cities. In 2000 the percentage grew to 8% considering all the referrals to 6 prosecution offices and all the cases referred to the mediation centres of the corresponding 6 cities (Bari, Cagliari, Catanzaro, Foggia, Trento, Turin)35. A survey by the research unit of the DJJ (Mastropasqua and Ciuffo, 2004) examined the characteristics of 321 cases of youth offenders who underwent mediation in 2002. Some of the results are of interest. First, the majority of offenders were male (81%)36 and aged 16-17 (159 out of 321). According to the survey, there is an average time lag of about one year (380 days) between the occurrence of the crime and the mediation, thus it is clear that most juveniles who eventually underwent the mediation process were between 14 and 16 when they committed the crime. The long time interval occurring between the crime and the mediation may be surprising for nonItalian readers. For a number of years, Italy set the record of condemnations by the European court of human rights for the unacceptable delays with which Italian courts sentence civil and criminal cases. Thus, Italian readers would probably consider the time interval reported above quite short. Second, the vast majority of offenders undergoing VOM were Italian (97%). This result does not correspond to the national data on offences committed by minors, as 22% of minors referred to the prosecution offices in 2002 were foreign. This finding suggests that one of the selecting criteria of the VOM subgroup is Italian nationality. This might happen because it is difficult to find mediators for the juvenile offenders’ many nationalities (they mostly come from Northern Africa, ex-Yugoslavia and Eastern Europe countries). There might be an additional cause. We know from previous research that compared to Italians fewer foreign minors receive probation orders (Mestitz and Colamussi, 2000). We also know that mediation often occurs as a part of the probation order. Thus the access to mediation may turn out to be limited for foreign minors. As previously mentioned, another important indicator of how VOM is being implemented and to whom it is directed is constituted by the offences committed by the youth offenders who were referred to mediation centres. It is evident (Table 15-3) that the majority of the crimes are against persons (62.3%) which are approximately twice the number of offences against property. Yet in Italy, as well as in other countries, the great majority of crimes committed by youth offenders are against property. Thus Table 15-3 indicates that the subgroup referred to VOM is evidently the result of the selection process operated by prosecutors and judges. In effect this clearly 35 366

See Table 2.9 in Mestitz (2004b: 70). This result does not seem to imply a gender bias in referrals, but rather it reflects the general prevalence of males over females in the juvenile offenders population.

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emerged in the research by Ghetti (2004) that revealed magistrates’ tendency to refer cases for mediation when a relationship between two individuals is compromised by actions such as assaults, threats, lesions, battering, etc. We further elaborated the data collected by the DJJ (Mastropasqua and Ciuffo, 2004) and noticed (Table 15-3) that VOM was more likely to be successful when offences were against property (71%), whereas it is less likely to be successful (20%) when the offences are against persons. These results raise the question of whether prosecutors and judges should take the type of offence into account when referring a case to mediation. To the extent that offences against persons are reliably associated with negative outcomes of mediation, a change may be needed in the judges’ and prosecutors’ referral orientation. Table 15-3. Offences committed by youth offenders referred to VOM, offenders’ and victims’ consent to participate in the VOM meetings and successful outcomes of mediation (321 cases referred to mediation centres in 2002). Offences referrals to offenders’ victims’ positive mediation* consent** consent** outcomes** N % N % N % N % Against persons 204 64 150 74 120 59 41 20 Against property 97 30 73 75 53 55 69 71 Other 10 3,1 6 60 6 60 7 70 Missing 10 3,1 7 70 3 30 4 40 Total 321 236 74 182 57 121 38 * Percentages in this column were calculated on the total of 321 cases referred to mediation. ** Percentages in these columns were calculated on the total referrals to mediation centres for each category of offences (N in the first column). For example, the number 150 for offenders’ consent corresponds to the 74% of all 204 offences against persons, and 120 for victims’ consent corresponds to the 59% of the same total. Source: our calculations from data collected by DJJ (Mastropasqua and Ciuffo, 2004: 125).

The DJJ survey underlined the high percentage of cases (59%) referred in 2002 for which mediation was not carried out (Mastropasqua and Ciuffo, 2004). The reason for the discrepancy between the high number of cases for which offenders’ consent was obtained (N = 236, see Table 15-3) and the low number of cases for which mediation was carried out was not clarified. The survey mentions that there were some significant crime-related differences in the percentage of victims that consent to participate in VOM. For example, with respect to crimes against persons, victims of lesions appeared less likely than offenders to be willing to take part in VOM (i.e., 72 victims vs. 99 perpetrators of 128 cases). In contrast, comparable numbers of victims and offenders gave their consent when the offences consisted of insults and threats. With respect to crimes against property, offenders appeared to be more likely to give consent than victims in robbery cases. In

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contrast, comparable numbers of offenders and victims gave consent in theft and trespassing cases. In summary, not surprisingly victims appear to be less willing to undergo VOM when the offences are more severe. Future studies should examine whether this result indicates a true characteristic of VOM as being more appropriate for less severe crimes or if, instead, Italian mediators have not yet developed the best ways to approach victims when the latter have experienced more severe crimes.

6.

THE VOM PRACTICE

The majority of mediation meetings include 4 or 5 participants: the victim, the offender and two or three mediators. In other words, the common practice in all Italian mediation centres is co-mediation, as in the United States where “ninety-three percent of the programs either routinely or occasionally use co-mediation” (Umbreit, 2001: 116). Moreover, comediation is used as on-the-job training for newcomers. According to the DJJ survey, in more than half the cases there are two mediators, in a fourth of the cases there are three. The duration of each meeting is on average two hours (Mastropasqua and Ciuffo, 2004). All VOM centres conduct only face-to-face mediation between victims of crime and juvenile offenders. Neither circle nor Family Group Conferences (FGC) have thus far been attempted in Italy. The Milanese group is unique in that it also carries out mediation meetings similar to the FGC models. Mediators report that because they noticed that the victim’s and/or offender’s families frequently interfere negatively with the mediation work37, they sometimes opt for a direct involvement of the families to prevent their interference outside the mediation context. In these cases three mediators meet with the victim and the offender, and three or more additional mediators meet with their families. Subsequently, the two mediation groups gather in a final plenary meeting. Milanese mediators report that the participation of three mediators is helpful as each of them can play a different role in order to facilitate the mediation and the communication processes. The French influence is still strong, as confirmed by the fact that the most widely represented theoretical model of mediation is that proposed by Jacqueline Morineau from the Centre de Médiation et de Formation à la

37

They report that the intrusion of victim’s and offender’s families in the process may not only turn the focus of the mediation away from the victim and the offender but also decrease the probability that an agreement is reached between them.

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Médiation of Paris (Morineau, 1998)38. In fact, almost all Italian mediators received their training directly from Morineau either in France and/or in Italy (Mestitz, 2002). Only the mediation group in Trento did not follow this model; the groups in Turin and Milan also underwent additional, different training approaches. According to Morineau’s model, the mediator uses his/her “empathetic capacities” in order to share feelings and “to give emotions back to the parties” (Di Ciò, 1999). In fact, the majority of mediators (66%) report that the objective of VOM is to establish communication between the victim and the offender and that mediation focus both on the victim and the offender. Additional objectives frequently mentioned by mediators are: facilitating the sharing of feelings and emotions between victim and offender (36%), making the offender aware of her/his responsibility (34%), and providing support to the victim (26%) (Mestitz, 2004b). These features seem to confirm their common cultural background in Morineau’s model. Although scholars often emphasize the importance of evaluation and follow-up programs, only one recent attempt to evaluate VOM has been performed at national level39. However, this evaluation is strictly limited to documenting the extent of VOM practice, not to assessing whether VOM actually works. These evaluative aspects are currently under examination within our research programme.

7.

PROFESSIONAL CHARACTERISTICS AND JOB EVALUATION OF MEDIATORS

7.1

Educational background, recruitment and training

The analysis of mediators’ educational background reveals that the majority (66%) have a bachelor’s degree; the remaining mediators have either a university “short degree”40 or high-school level education (17% for each category). In 2002 the majority of mediators actively working in the eight mediation centres were female (76%), mainly young (62% of them were between 28 and 38) and married (58%) but without children (52%) (Mestitz, 2004b). The majority of mediators are employed as social workers: 19 work in the court social services and 27 in the local social services. An additional 31 are free lance (for example, psychologists or other professionals who are not 38

The same occurs in Luxembourg (see Chapter 10), but not in France where - as Milburn (Chapter 14) stresses - the Morineau’s method has not made a “significant impact”. 39 See the recent survey by the DJJ summarized by Mastropasqua and Ciuffo (2004). 40 The university “short degree” (laurea breve) is obtained after 2-3 years of attendance.

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employed by other public agencies but who have a specific contract with the mediation centre) or employees of private and/or other agencies. Moreover, there are 14 voluntary mediators. The activity of mediation is mainly carried out part-time because most mediators also engage in other professional activities (social workers, lay judges, psychologists etc.). Our research data indicate that mediation activity was only recently undertaken: 48% of the mediators began in 1997-98 and 40% in 1995-96. The recruitment of mediators is operated on a voluntary basis and selection procedures have not yet been formalized at a national level. Thus, those who want to become mediators simply apply at a mediation centre before or after a period of on-the-job training under the supervision of more experienced mediators. As shown in Table 15-4, the vast majority of mediators (76%) received formal training before the beginning of their mediation activity. All those who did not, participated in training activities once they began working at the VOM centres. Table 15-4. Training of mediators before and after beginning VOM activity (2002). Mediators trained after the Total number Mediators trained before the VOM centres of mediators beginning of their activity beginning of their activity N N % N % Bari 8 8 100 3 37.5 Cagliari 1 1 100 1 100 Catanzaro 9 1 12.5 8 88.9 1 1 100 100 Foggia Milan 12 12 100 12 100 Sassari 1 1 100 1 100 9 7 78 9 100 Turin Trento 6 5 83 1 20

According to our data, the duration of training may vary considerably. The mediators in the Milan, Trento, and Turin VOM centres underwent the most extended training (on average about 22 days), compared to those in Bari (average 16 days) and Cagliari (4 days). The mean training duration was 315 hours, which is much longer than in other European nations and ten times more than the 31 hours which in the United States represents “the average number of hours of training for staff or voluntary mediators” (Umbreit, 2001: 116). Mediators generally participated in specialized seminars and workshops on mediation. There exists some variability in the training procedures adopted in the different VOM centres and their duration. The reason for such variability is probably due to the variable financial resources allocated for

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training. In addition, the lack of a clear definition of the profession of mediation as well as the lack of a national training curriculum, probably add to the variability. Nevertheless our interviews show that each centre attempts to guarantee the best possible training according to the opinions and expectations of the mediation group, and consistent with its predominant theoretical background. It should be emphasised that although training procedures are quite heterogeneous across centres, they appear highly homogeneous in each mediation centre (Mestitz, 2004b).

7.2

Workload per mediator

The number of cases per year dealt with by each mediator is relatively small. The majority of mediators (60%) dealt with an average of 15 cases per year, that is, a mean workload of 1.4 cases per month for each mediator 41. Particularly low seems the workload in Trento, where each mediator reports dealing with an average of about 4 cases per year. The relatively reduced workload is reflected in the mediators’ subjective evaluation of satisfaction with their workload. Only three mediators (out of 50) report a high level of satisfaction with their workload, whereas the majority (N = 37) report a medium level of satisfaction (Mestitz and Ghetti, 2002). When the number of cases dealt with per year is correlated with the levels of satisfaction expressed with the workload, it is evident that those mediators who worked on a larger number of cases were more likely to report being more satisfied with their workload (r = .22). This suggests that mediators feel that their professional competence is underused (ibidem). Clearly, the number of meetings needed for completing the mediation is a fundamental part of the workload which directly influences mediators’ job satisfaction. The number appears high as the average for each case is approximately three meetings. Nevertheless the number significantly differs in each mediation centre. For example one meeting is enough for the majority of cases in Milan and Turin, whereas four are needed in Bari and Cagliari, and in Foggia even five.

8.

CONCLUSIONS

VOM can still be considered a marginal reality in Italy. However, several aspects of the Italian experience with VOM are noteworthy. First, despite the fact that some mediation centres have now been active for almost a decade, 41

As mentioned above, all mediators work part-time.

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VOM is still presented, discussed, and considered as a procedure in its beginning stages and is defined as “experimental”. Strengthening such perceptions of VOM are factors such as i) lack of specific legislation concerning VOM, ii) scarcity of funding or, in any case, variable and not guaranteed funding, and iii) marginal implementation of VOM (i.e., only a small minority of juvenile cases are mediated). Another important aspect that deserves further discussion concerns the lack of systematic follow-up and evaluation procedures. This is a quite problematic shortcoming of current practice. Although the enthusiastic attempt to implement a new tool upon its discovery is understandable, it becomes puzzling 10 years after the introduction of mediation in Italy. The definition of the success of VOM has not been fully elaborated and needs further clarification. Moreover, the lack of statistics can be used instrumentally. For example, one president of a juvenile court commented that the lack of data supporting the benefits of VOM can clearly be interpreted as meaning that VOM is useless (Ghetti, 2004). Further, no standardized practices have been so far established. The introduction and implementation of VOM in Italy was a spontaneous bottom-up process, promoted by a small group of magistrates. Many expectations were mainly concerned with values, ideologies and the improvement of the quality of justice rather than its effectiveness and/or efficiency. However, too many aspects of the process are still left to chance, for example: diffusion through imitation from one actor to another, lack of planning in establishing new mediation groups, suggestions of opinion leaders, professional press and associations. Nevertheless, the creation of new mediation centres in recent times testifies to a cultural change in the Italian juvenile justice system. This is also suggested by the increase of research projects and books on the subject42. A recent significant step aimed to increase the VOM activities was the foundation of the Italian section of the new European magistrates association named G.E.M.ME. (Groupement Européen des Magistrats pour la MEdiation)43. Last but not least, we mention a recent initiative that emphasize the spreading interest in VOM. The Senate, the DJJ of the Ministry of justice and the Italian section of Unicef sponsored a national convention on VOM organised by our Institute at the National Research Council in Rome (20 January 2005). What is needed now is that a central institution (DJJ or a new agency) become responsible for applying on the territory the common three phases strategy used when an innovation is to be introduced in an organization: 42 43

See Scaparro (2001), Mestitz (2004a). The French magistrates were the founders of G.E.M.ME. in 2003 while the Italian section was founded in July 2004 at the Higher Council of the Magistracy in Rome.

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information acquirement, transmission and, finally, application. The first phase is concerned with research and analysis. Some efforts have been done but many aspects have to be explored, such as the victims’ and offenders’ perceptions and feelings. The second phase regards the training processes for magistrates, mediators and other personnel directly or indirectly involved in the VOM activities. The third phase, closely connected with the information provided and distributed in the previous ones, regards all needed set-ups: norms and procedures to be produced, institutional and organisational frameworks, systematic planning to establish new mediation centres on the territory and to provide for their financial and human resources. If VOM application is to be extended in Italy it should be based on such a circular strategic process.

REFERENCES Baldry, A.C., 1998, Victim-Offender Mediation in the Italian Juvenile Justice System: the k 28:729-744. Role of the Social Worker, British Journal of Social Work, Baldry, A.C., De Leo, G., and Scardaccione, G., 1998, Victim-Offender Mediation in the Italian Juvenile Justice System: A First Attempt of Definition, in: Psychology and Criminal Justice, J. Boros, I. Munnich and M. Szegedi, eds., De Gruyter, Berlin. Bouchard, M., 1994, Dove va la delinquenza dei giovani, dove va la giustizia minorile? Minori giustizia, 4:10-18. Bouchard, M., and G. Mierolo, 2000, Prospettive di mediazione, Edizioni Gruppo Abele, Torino. Carnevali, D., and Di Cocco M.C., 2001, An innovation process embedded in a strict institutional setting: ICT in the Italian judicial system, in: Justice and Technology in Europe: How ICT is Changing the Judicial Business, M. Fabri and F. Contini, eds., Kluwer Law International, The Hague, pp. 197-217. Di Ciò, F., 1999, L’esperienza dell’Ufficio per la mediazione a Milano, in: La mediazione penale in ambito minorile: applicazioni e prospettive, Ufficio Centrale Giustizia Minorile, ed., Franco Angeli, Milano, pp. 167-176. Di Federico, G., 1995, Italy: a peculiar case, in: The Global expansion of Judicial Power, C.N. Tate and T. Vallinder, eds., New York University Press, New York, pp. 233-242. Di Federico, G., 1989, The crisis of the justice system and the referendum on the judiciary, in: Italian Politics: A Review, P. Corbetta and R. Leonardi, eds., vol. 3, Pinter, London, pp. 25-69. Di Federico, G., 1998, Prosecutorial independence and the democratic requirement of accountability in Italy, British Journal of Criminology, 38(3):371-387. Fabri, M., and Contini F. (eds.), 2001, Justice and Technology in Europe: How ICT is Changing the Judicial Business, Kluwer Law International, The Hague. Ghetti, S., 2004, Cosa pensano i magistrati minorili della mediazione penale?, in: Mediazione penale: chi, dove, come e quando, A. Mestitz, ed., Carocci, Roma, pp. 89-109. Ghetti, S., and Mestitz, A., 2003, Victim-Offender Mediation with Juvenile Offenders: Perceptions of Public Prosecutors and Judges, paper presented at the International Conference of the American and European Psychology-Law Society (Edinburgh, 9-12 July 2003).

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Guarnieri, C., 1995, Judicial Independence and policy making in Italy, in: The Global Expansion of Judicial Power, C.N. Tate and T. Vallinder, eds., New York University Press, New York, pp. 243-259. Juvenile magistrates of Turin, 1994, Proposte per una risposta penale riparatoria, Minori giustizia, 4:26-33. Lemert, E.M., 1986, Juvenile justice Italian style, Law & Society Review, 20(4):509-544. Mastropasqua, I, and Ciuffo, E., 2004, L’esperienza della mediazione penale nei servizi della Giustizia Minorile. Indagine su un anno di attività, in: Mediazione penale: chi, dove, come e quando, A. Mestitz, ed., Carocci, Roma, pp. 111-134. Mestitz, A., 2000, Managing juvenile criminal justice in Italy, in: The Challenge of Change for Judicial Systems, M. Fabri and P. Langbroek, eds., IOS Press, Amsterdam, pp. 221234. Mestitz, A., 2002, A first survey on Victim-Offender Mediation in Italy, paper presented at 3rd International Conference on Conferencing, Circles and Restorative Practices “Dreaming of a new reality” (Minneapolis, 8-10 August 2002); www.restorativepractices.org. Mestitz, A. (ed.), 2004a, Mediazione penale: chi, dove, come e quando, Carocci, Roma. Mestitz, A., 2004b, I centri locali per la mediazione penale, in: Mediazione penale: chi, dove, come e quando, A. Mestitz, ed., Carocci, Roma, pp. 45-88. Mestitz, A., and Colamussi, M., 2000, Messa alla prova e restorative justice, Minori giustizia, 2:223-288. Mestitz, A., and Ghetti, S., 2002, Juvenile magistrates and Victim-Offender Mediation centres: the communication system, paper presented at the 2ndd Conference of the European Forum for Victim-Offender Mediation and Restorative justice (Oostende, 10-12 Oct. 2002); http: euforumrj.org/readingroom/Oostendeconf.pdf. e Morineau, J., 1998, L’esprit de la médiation, Erès trajets, Ramonville Saint-Agne. Patanè, V., 2004, Ambiti di attuazione di una giustizia conciliativa alternativa a quella penale: la mediazione, in: Mediazione penale: chi, dove, come e quando, A. Mestitz, ed., Carocci, Roma, pp. 19-43. Scaparro, F. (ed.), 2001, Il coraggio di mediare, Guerini e Associati, Milano. Scardaccione, G., Baldry, A., and Scali, M., 1998, La mediazione penale. Ipotesi di intervento nella giustizia minorile, Giuffré, Milano. Ufficio Centrale Giustizia Minorile (ed.), 1999, La mediazione penale in ambito minorile: applicazioni e prospettive, Franco Angeli, Milano. Umbreit, M.S., 2001, The Handbook of Victim-Offender Mediation, Jossey-Bass, San Francisco, California. Zannotti, F., 1995, The judicialization of judicial salary policy in Italy and the United States, in: The Global Expansion of Judicial Power, C.N. Tate and T. Vallinder, eds., New York University Press, New York, pp. 181-203.

Chapter 16 JUVENILE PENAL MEDIATION IN SPAIN: THE EXPERIENCE IN CATALONIA Jaume Martín Barberan -

1.

ORIGIN AND FIRST DEVELOPMENT OF VICTIM-OFFENDER MEDIATION

The first instances of mediation applied in conflict resolution between victims and offenders emerged in Spain in the mid-1980s, mainly thanks to the dissemination activity performed by the Centre d’Estudis Jurídics y Formació Especialitzada (legal studies and specialised training centre), of the Autonomous Catalan Government’s Ministry of Justice. In 1981, this Autonomous Community (AC)1 became the first to receive full competencies in minor protection and custody from the central Spanish administration. The rest of Spain’s AC assumed these competencies in later years, most between 1985 and 1990. This made Catalonia the first AC to face the need to transform the model of juvenile justice inherited from Spain’s predemocratic period. To that end, it began an analysis of European juvenile justice models. This activity helped to establish the framework for the juvenile justice model now applied in Spain. In those initial years, Catalonia was the privileged site of its ongoing transformation and innovation. The first steps taken were meant to reduce the number of individuals in the former juvenile institutions and to begin applying sanctions within the community context. The objective was to abandon the former protective model, moving toward a new type of juvenile justice based on respect for the rights and guarantees of minors processed by the justice system. The next

1

Spain is organised territorially into 17 Autonomous Communities.

347 A. Mestitz and S. Ghetti (eds.), Victim-Offender Mediation with Youth Offenders in Europe, 347-367. © 2005 Springer. Printed in the Netherlands.

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step was taken in the second half of the 1980s. It consisted of the study and progressive assimilation of the concept of Restorative Justice that was brought to Spain from the United States and some European nations (Germany, England, Austria, Belgium and Scandinavia). Information on the first Victim-Offender Mediation (VOM) projects and the enforcement of punishments based on community service was also introduced in Spain. In 1989, the Catalan Government’s Ministry of Justice set up a commission to design the implementation of a VOM programme in the jurisdiction of juvenile justice. This programme began to work in May 1990, and with the passage of time has become an essential part of Catalonia’s present juvenile justice system.

2.

THE LAW ON JUVENILE PENAL MEDIATION

The first two years of the above described initiatives passed without any specific stipulations in the law of juvenile courts to back them up. Nonetheless, the absence of a law gave judges full discretion over their decisions and was used to implement the mediation programme in Catalonia by mutual agreement between judges and the Catalan Ministry of Justice. In 1991, the former law of juvenile courts of 1948 was declared unconstitutional on account of some of its articles. It was reformed in 1992 (law 4/922) with the aim to remedy the lack of legal guarantees prevalent in the prior period. In addition to other changes, this legal reform also brought about the first-ever regulation on the possibility to compensate for damages caused to victims and, under these parameters, promote mediation programmes throughout Spain. From that time on, when the age of criminal responsibility according to the penal code was 16 years, the VOM programme was oriented toward minors in the 12-16 year-old age group accused by the juvenile prosecution office of a crime classified as a misdemeanour or felony under the penal code. Law 4/92 empowered the prosecution office to propose the termination of proceedings if the minor had compensated, or agreed to compensate the victim for damages. This made it possible to avoid continuation of legal proceedings, prioritising the attribution of responsibility to the offender, the solution of the conflict and the victim’s voluntary participation in the mediation process. Furthermore, extra-judicial compensation was also regulated as an alternative to the enforcement of the decision at the end of the proceedings. In such case, the legal proceedings continued until the ruling was given by the juvenile court judge. Compensation was applied as a 2

Ley Orgánica 4/92, Reguladora de las competencias y el procedimiento de los Juzgados de Menores, (LO 4/92).

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result of the proceedings being terminated, under the prior assumption of a proposal for compensation to be carried out by the offender and accepted by the victims. During that time, the mediation programme was carried out in Catalonia under the practically exclusive reference to rule n. 6 of the law 4/92 that is, as an alternative to continuing judicial proceedings. The mediation process begun at the request of the juvenile prosecutor in all cases in which the severity of the crime and the nature of the conflict gave rise to a possible extra-judicial solution. The characteristics of the process varied depending on whether it was intended to reach the conciliation objective between the parties and/or compensation, and the direct or indirect participation of the victim in the process. Once the mediation was concluded, the mediator sent the prosecution office the document of agreements (signed by both parties) and an overall evaluation report on the process. This report weighed the crime and compensation given, and proposed the dismissal of the charges and termination of proceedings to the juvenile court judge.

3.

THE FIRST 10 YEARS OF EXPERIENCE: 1990 -1999

From May 1990, to January 1999, the VOM programme was voluntarily participated in by 6,624 offenders and 4,279 victims. The difference between the number of juvenile offenders and victims is essentially due to the fact that many offenders committed their crimes in groups. These statistics of VOM programme participation stand for 25% (up until the end of 1996), and 50% (as of 1997) of the total number of minors who annually enter the juvenile justice system for the first time in Catalonia (Dapena and Martin, 1999). In the gender breakdown for juvenile offenders, boys stand for 78%. However, it is significant that the proportion of girls grew progressively over those years, increasing from 10% in 1990 to 22% in 1999. These data match the trend of girls’ increased presence which, in general terms, came about in Catalonia’s juvenile justice system in the same period3. Regarding education, 82% of the participating minors were enrolled in school, whereas the other 18% were not. In 50% of the cases, the victims were private individuals and half of them were minors. In the other 50%, they were public or private legal entities.

3

Data base of the Direcció general de mesures penals alternatives i justícia juvenil, Departament de justícia.

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Crimes were against property: misdemeanour theft, theft, damage and larceny by force, and others made up 63% of the total crimes committed by the youth involved in the programme. These were followed by crimes against individuals, most of which were injuries (24%). Larceny with intimidation and larceny with violence and intimidation stand for 4% and 2%, respectively, of the cases taking part in the programme. Of the total number of cases in which the prosecution office determined mediation viable, 50% of the accused minors voluntarily accepted the option, whereas the other 50% chose to stand trial within penal proceedings. Insofar as the victims (to whom this option is only proposed if the offender has previously accepted it), 13% explicitly rejected it. The rate of acceptance among victims is high, as is shown by the 87% that chose it, although levels of interest and participation can vary significantly. Of the mediation programmes, 59% was conducted with the victims’ direct or indirect participation: • In 12% of the cases, the parties had already solved the conflict by their own accord prior to the first contact with the mediator. When this happens, victims and offenders usually know each other, have a certain relationship or share the same social environment. • In 20% of the cases, the mediation and agreements were reached with a mediator, without a direct encounter between the parties. • In 27% of the cases, victim and offender participated in direct meetings in which the agreements were decided. In 30% of the cases, different types of extra-judicial solutions are sought without victims’ participation. This was due to the insignificance of the offence, low interest on the part of the victim, the victim’s anonymity, etc., but also to the fact that the offender has taken on responsibility the offence and shown his interest in compensating the damage. Only 11% of the cases in which a mediation programme was initiated were concluded without achieving results. Regarding the agreements, experience showed that the priorities of the victims and offenders did not exclusively reside in compensation or claims for damages, although these factors were part of the agreements. Rather, the mediation process itself had a major significance. Agreements also reflected the concern for matters such as the future relationship between the parties, commitments of non-aggression, non-repetition of the offence, etc. Also important were the consequences of the offence for the victim and offender in moral, emotional and legal terms.

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351

The extension throughout the country

Currently, mediation in juvenile justice is applied in most of Spanish ACs, although its development is irregular as it is subjected to the penal policy priorities of each of them. At present, along with Catalonia, the ACs that have carried out the most extensive mediation services in the juvenile justice system are Basque Country, Castille la Mancha and the Balearic Islands4. As all of the juvenile justice mediation programmes are subjected to the stipulations of the law 5/20005 on juvenile criminal responsibility in force, it could be concluded that mediation forms are part of the juvenile justice system. Nonetheless, this is merely a formal matter, as the existence or absence of mediation services or programmes exclusively depends on the will of each AC to develop and finance these policies to a greater or lesser degree. In practical terms, it cannot be said that mediation forms a real, significant part of the juvenile justice system throughout Spain. On another note, the institutional framework varies from community to community. In most AC, the youth court social service or “technical team” (equipo técnico6) performs the mediation duties. In others, there are mediators hired by public entities or associations to carry out this specific task. Some AC have professionals hired by public organisations or private entities (with public funding) for the performance of judicial measures in probation and mediation. It should be added that other Restorative Justice practices have developed in Spain. The judicial measure of compensation in the form of community service is part of the catalogue of possible sanctions established by the law 5/2000. This sanction can only be applied with the consent of the juvenile offender, and to the extent that it may be directly or symbolically related 4

No study or statistical report has yet been performed on the work carried out by the mediation services that exist throughout Spain. Therefore, no quantitative statistics on its current application can be provided. References to the work being done by the AC mentioned in this report are based on the report on the first year of application of the law regulating juvenile penal responsibility, by the ombudsman’s office (El Defensor del Pueblo, 2002). 5 Ley Orgánica Reguladora de la Responsabilidad Penal del Menorr (LO 5/2000). 6 The technical teams (equipos técnicos) are charged with the mission of advising the judicial bodies on the personal and social characteristics and circumstances of minors being processed by the courts. The objective of the reports they prepare is to give the judges the information necessary to knowingly weigh the measures to be applied in each case, taking the interest of the minor into account. In some AC these staff report directly to juvenile court. In others, such as Catalonia, they report to the Autonomous Government, either through their link to the Ministry of Justice (such is the case of Catalonia) or that of Social Affairs, Governance, or others, depending on the different competency distribution criteria.

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with the nature of the offence and the victim, it can be interpreted as a form of reparation for the damage caused, and considered as a course of action in close accordance with the tenets of restorative justice. There has also been a significant proliferation of victim services, which can also represent a clear dilemma between two approaches: on the one hand, increasing the judicialisation and demands for compensation and, on the other hand, establishing communicating vessels with the criminal justice system and the community that open new possibilities for the development of restorative justice programmes. As regards VOM in the penal jurisdiction of adults, there is only one pilot programme in Catalonia, begun in 1998, which covers approximately 100 cases per year, on average. This pilot programme is financed and supervised by the Ministry of justice of the Catalan Government and is conducted by the mediators of ACDMA7. It has undergone two evaluations up to the present (Dapena and Martin, 2000; Vall and Villanueva, 2003).

4.

THE JUVENILE JUSTICE SYSTEM TODAY, LEGAL FRAMEWORK AND REGULATION OF MEDIATION PROGRAMMES

In Spain the juvenile penal jurisdiction is differentiated from that of adults, and is conducted under a different set of laws. To summarise: • criminal law and procedure is based on the law 5/2000, and, subsidiarily, for anything not stipulated by this law, the penal code and the criminal judgement law; • the organisation of the courts and organic dependence of judges is based on the law 1/85 of the judiciary; • the administrative regulation of services for the enforcement of judicial decisions, is conducted by the laws that each AC establishes to this end (in Catalonia law 17/01 on juvenile justice). The law 5/2000 completely substituted the former juvenile penal legislation (law of juvenile courts of 1948 and the later law 4/92), opening new possibilities to promote victim reparation, conciliation and mediation programmes. The law came into force on 13 January, 2001, and since that time, the mediation programme in this jurisdiction has taken on new force throughout Spain and especially in Catalonia, where the programme has undergone major growth in absolute terms, although proportionately it has decreased with regard to the rest of the measures applied. The competency to 7

Catalan Mediation and Arbitration Association ((Associació Catalana de Mediació y Arbitratge).

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open proceedings and enact the procedure, as was the case in the 1992 law, was assigned to the prosecution office, along with wide-ranging powers for discontinuation that favour a policy oriented toward the application of opportunity and “de-judicialisation” principles. The application of the law to individuals in the 14-18 year-old age group and in the cases of less severe felonies and misdemeanours, for youths up to 21 years of age8, considerably increased the eligible population. There are various possibilities in the law for dropping the criminal action (articles 18, 19 and 27.4). Article 18 facilitates the “de-judicialisation” policy under the following criteria: a) if it is a less-severe felony without violence or intimidation to individuals; b) if it is the first offence committed by the minor. Many observers believe that this possibility must be generously supported. This is partly due to the well-known fact that in Catalonia, as in the majority of countries in which similar studies have been carried out, 80% of minors entering the court system do so because of a one-time offence, without later repetition. Apprehension, knowledge of the offence by the family, etc. are in many cases enough to impede repetition of the offence. On another note, if this were not case, an unnecessary judicialisation of minors would be activated, congesting a special jurisdiction which must be above all flexible and easy to understand, not only for the juvenile offenders, but also their victims and the community. In the trial phase, the most significant feature is taken up in article 19. The conditions under which the prosecution office can drop a criminal action are: – absence of severe violence or intimidation in the commission of the offence; – presence of commitment to repair the damages caused to the victim or injured party of the offence; – presence of the offender agreement to participate in an educational activity proposed by the technical staff in their report. In article 19.2, the law defines conciliation and reparation for their consideration in the mediation process and the agreements between the parties. Dropping criminal charges is understood to be provisional and dependent on the compliance by the minor of the reparation and/or conciliation commitment. If it is a severe felony, but without aggravating circumstances such as violence or intimidation, it is reasonable to interpret that the prosecution office could authorise mediation, but not drop the case.

8

The article that establishes competency for the juvenile judges to hear cases of youth from 18 to 20 years of age will come into force in 2007.

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the mediation and compensation are complete, the prosecutor might propose dismissal to the judge. Civil liability can be approached in the mediation and reparation framework as long as the parties express a mutual desire to reach an agreement. In any case, the law stipulates that the juvenile court judge has competency to give a decision on civil liability (article 2.2). To do so, the judge must initiate a separate civil liability proceeding. Articles 61 to 64 establish the general standards by which civil liability is demanded. This will be conducted by the prosecution, unless the injured party explicitly waives the option. Therefore, if the parties have not reached an agreement on civil liability, the judge within the legal proceedings will decide it. Nonetheless, the law does not condition the victim-offender conciliation or reparation (and its penal benefits) to the fulfilment of civil liability. On another note, the figure of joint liability is also established for parents, caretakers and legal and common-law guardians when the minor responsible for the offence is under 18. These two factors, “de-judicialisation” and age, theoretically expand the possibilities for future development of mediation programmes.

5.

THE ORGANISATION AND STRUCTURE OF MEDIATION SERVICES IN CATALONIA

Taking into account the major differences that exist throughout the country in the application, dependence and organisational structure of mediation services, and in general, all of the services at work in the juvenile justice system, in this section, mediation in Catalonia is exclusively discussed. The mediation programme in this community is a public service dependent on the Directorate General for Juvenile Justice9 (hereafter DGJJ), to which all minors have access once they are processed by the court for an offence classified under the Penal Code and in keeping with the conditions described above. The programme depends directly on the DGJJ. Its practical implementation is carried out through the Mediation and Technical Advising Service. As their name suggests, the technical teams (equips tècnics) for advising the legal bodies also depend on this service. The Barcelona organisation is based on territorialized activity carried out by three mediation and technical advising teams. Each team is made up by 12 professionals (1 coordinator, 6-7 technical advisors of the judicial bodies 9

The Directorate General of Juvenile Justice is part of the Secretariat of penitentiary services, rehabilitation and juvenile justice of the Ministry of Justice of the Catalan Autonomous Government (Generalitat de Catalunya).

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and 4-5 mediators). In the Barcelona teams, the mediators are solely and exclusively concerned with the mediation programme. In an initial phase they evaluate the viability of mediation, and if the necessary conditions are present, the later mediation between offender and victim. In the three remaining Catalan provinces - Girona, Lleida and Tarragona the probation teams for juveniles (equips de medi obert), also depending on the DGJJ, carry out mediation (Table 16-1). The objective of the probation teams is to enforce all the probation measures decided by juvenile court judges, acting as mediators in cases for which the technical advisers had presented a viability report for mediation between offender and victim. Therefore, the difference has to do with the exclusive dedication of the mediators in Barcelona, on the one hand and, on the other hand, compatibility with the enforcement of measures in probation, as is the case of the professionals who conduct the mediation programme in the other provinces. In all, of the 114 professionals who make up the technical advising functions and those of probation in Catalonia, currently 30 of them exclusively perform mediation tasks or share these duties with others for the enforcement of judicial measures in probation. Table 16-1. Composition of technical and mediation teams (equips de mediació i assessorament tècnic) and probation teams (equips de medi obert). t Mediation and technical probation teams advising teams Barcelona10 36 31 Girona11 10 5 Lleida 10 5 Tarragona 10 7

In Barcelona, the VOM programme administration and activities are carried out at “mediation and technical advising service” headquarters. These facilities are located near five juvenile courts in this territory. In Girona, Lleida and Tarragona, the administrative services are located in each provincial capital sections of the DGJJ, while mediation activities are carried out either on these premises or in municipally owned facilities, depending on the involved parties’ place of residence.

10 11

Barcelona has three mediation and technical advising teams. Girona, Lleida and Tarragona each have one technical advising team and one probation team.

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OFFENCE COMPLAINT MEDIATION TEAM Information viability study period of initial contact with parties

INTERVIEW WITH JUVENILE OFFENDER PROGRAMME VIABILITY STUDY RECOGNITION OF VOLUNTARINESS ABILITY

• •

PROSECUTION OFFICE

POLICE

INTERVIEW WITH VICTIM VIABILITY STUDY PARTICIPATION VOLUNTARINESS, ABILITY

EVALUATION OF CONTACT PERIOD PROGRAMME DEVELOPMENT PHASE

PROGRAMME WITH VICTIM PARTICIPATION • meeting between parties • reparation agreements • agreements drawn up

PROGRAMME WITHOUT VICTIM PARTICIPATION • the compensatory attitude of the offender is evaluated • dropping or continuing the case according g to prosecutor’s p criteria*

FINAL EVALUATION OF PROGRAMME POSITIVE/NEGATIVE

JUVENILE PROSECUTION OFFICE DISMISSAL OR CONTINUATION OF TRIAL

* That means that the prosecutor decides whether to continue the process or not to do so (being in agreement in this case with the compensatory attitude of the offender considered as being enough). Nonetheless the seriousness of the offence, according to the law, is an important factor to be considered.

Figure 16-1. Overview of the mediation process.

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Programme leadership, insofar as the definition of strategic objectives, is carried out by the mediation and technical advising service through the person responsible for it, and with the support of expert collaborators. In the organisational and supervisory parts of daily operations, this duty is covered by the various staff co-ordinators. Professionals on these staffs also have access to external case supervision areas financed by the Ministry of Justice that they may freely use. As is shown in Figure 16-1, communication between mediation services and other institutions is largely focused on co-ordination with the juvenile prosecution office, as this is the agency with the ultimate authority to decide the possible authorisation of mediation, based on the principle of opportunity. Although the law does not impede, and even stipulates, the possibility to mediate regardless of whether the trial continues, the Catalonia mediation programme is mostly centred on the model of “de-judiciarisation”. It is very important to spotlight that, in the pre-trial phase it is the prosecutor who decides to send the cases to mediation and who approves the proposals on going on with mediation as well as the final agreements. This does mean that the prosecutor exercises a great control over the cases that can accede to mediation and over the legal effects that could be derived from the accords obtained within mediation. Nevertheless, the mediation teams are completely independent in the mode of proceeding, in their organisation, methods and criteria of intervention. The sole interference of the prosecution office could be given in the extreme case when a violation of the rights of the victim or the offender has occurred. On another note, it must be highlighted that, although they do not appear in Figure 16-1, it is possible that for the informative and preparatory stages prior to the meeting between offender and victim, as well as for the materialisation of the agreements, there may be contacts and co-ordination with social services, schools or socio-cultural organisations within the community itself. The main advantage of the described organisation is the professional quality of its mediators, enhanced by possibilities for teamwork, daily exchange among mediators, professionals on the technical advising staffs, those devoted to probation, judges and prosecutors. In short, this programme is conceived as a means for regulation of the juvenile justice system while also being attached to it, as regards its intervention objectives and methodology as well as its organisation and operation. The main drawback refers to its having to occupy a space and perform certain duties that should also be promoted and available outside the juvenile justice system, in schools and the community. As VOM develops in school and community settings, the mediation programme within the juvenile justice system can concentrate on cases that, by virtue of their

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greater penal relevance and complexity of the conflict, require higher degrees of specialisation.

6.

CRITERIA, PRINCIPLES, RECOMMENDATIONS AND RESTRICTIONS TO CASE ADMISSION OR REJECTION

The Catalan juvenile justice system, not only the part having to do with the mediation programme, but also that having to do with the advising activity before determining the measures and their later enforcement, is based on a set of basic principles already adopted in 1995, that were later the object of consensus among the various professional groups of the DGJJ. These principles are: • equality under law, and therefore, no discrimination for reasons of origin, creed or condition of the minors involved in the various programmes; • respect for the rights and guarantees of minors throughout the judicial process and in the enforcement of the sanction decided by judges; • consideration of minors as persons with capacity to take responsibility for their own actions, and consideration of taking responsibility as a constructive component of any educational and social activity carried out with juveniles; • prioritisation in enforcement of judicial measures within the community context; • minimal judicial intervention and the consideration of the action of justice as a transitional factor in order to avoid its stigmatising effects. In the second half of the 1980’s, the Beijing rules of 1985, those of the United Nations on the administration of juvenile justice and Recommendation R(87) of the European Council on social reactions to juvenile delinquency were all influential among the professionals and public institutions responsible for juvenile justice in Catalonia. In 1989, these texts were also an extraordinarily efficient means to orient the actions of the first generation of judges specialised in the juvenile area, and reach the agreement to establish a mediation programme in Catalonia, in 1990. Two years later, in 1992, the reform of the 1948 law of juvenile courts also included references to these documents in its explanatory statement. Today, all legal texts relevant to the development and application criteria behind the Catalan mediation programme refer to the European Council’s Recommendation R (99) on penal mediation. This is a widely acclaimed text that reinforces the sense of the action undertaken and facilitates the involvement of new actors and agencies.

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Aside from the authorisation from the youth prosecution office12 to enter the mediation programme, other basic conditions must also be met: • that the minor takes responsibility for the crime; • that the minor explicitly expresses her/his will to compensate the victim; • that the minor’s participation is voluntary (accompanied by the consent of his parents), so that her/his interest in solving the conflict, and in doing everything possible to that end is ensured; • that the minor has sufficient capacity to compensate. In other words, the minor understands the alternative proposed, makes a commitment and actively participate in the process. All of these factors are evaluated at the outset, although with certain flexibility, as for the most part, these are aptitudes that the mediation process will be able to develop. The nature of the damages, circumstances in which they came about and whether reparation is possible must also be evaluated. It is also important to consider the time that has passed between the offence and the compensation, all of which is done to weigh the viability of initiating a mediation process.

7.

REFERRALS TO THE MEDIATION PROGRAMME AND EVALUATION

Statistics available for 2002 on crimes committed by young offenders participating in Catalan mediation programme refer only to cases in which the mediation was concluded that same year. Mediators in Barcelona and probation staff professionals in the rest of Catalonia territories concluded 1,676 cases that year, to which the commission of 1,918 different crimes were attributed (Table 16-2). The greatest volume of offences (64.55%) are grouped under the category of crimes against property, most of them damages and robbery by force. These are followed by those classified as crimes against individuals (21.69%) which are mostly injuries (in fights or attacks), and to a lesser extent, violations of privacy or honour. The third category, classified as “other crimes”, covers a wide array of offences, mainly against collective safety and public order. These can be offences of forgery or any offence committed against the administration of justice, albeit to a lower percentage.

12

There are not specific guidelines made by the juvenile prosecution office, but their criteria are concerned with whether violence has been used or not and, also, with the recidivism history individually considered.

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Table 16-2. Cases of VOM carried out in 2002 (DGJJ 2002). ) Cases concluded 1,676 Gender N Boys 1,471 Girls 205 Age 14-16 17-18 18-21 Unknown

Mediation Programme, Catalonia,

% 87.77 12.23

840 668 158 10

50.01 39.86 9.43 0.60

Crimes Against persons Against property Other felonies and misdemeanours

416 1,239 264

21.69 64.55 13.76

Total crimes

1,918

Overall, in 2002, the juvenile prosecution offices and courts of Catalonia channelled a total of 13,043 requests for intervention to the DGJJ, with relation to 6,457 different minors and youths (Table 16-3).

Table 16-3. Cases in juvenile penal jurisdiction (DG of Juvenile Justice, Catalonia, 2002). Requests13 Juvenile affairs jurisdiction Interventions14 Concluded15 Technical advising 7,029 7,377 6,960 Mediation and reparation 2,136 2,044 1,676 2,729 2,159 1,156 Measures in probation Measures in centres 1,149 902 681 13,043 12,482 10,473 Total

It must be considered that the technical advising programme is not itself a response to the crimes for which a minor has been accused, whereas mediation, although it is not a measure imposed by sentencing, does constitute a reaction by the justice system to certain offences. Therefore, for an analysis of mediation from the standpoint of juvenile justice reactions compared to the crimes committed by minors and youths, the statistics available must be compared with those of the rest of the measures applied in probation and in detention centres. Thus, in 2002, Catalan mediation 13

Requests are the number of new cases derived by judicial bodies during the year. Interventions are the total number of cases processed over the year. 15 Concluded programmes are those which are definitively closed during the year. 14

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programme received 35.5% of all requests from the judicial bodies charged with the mission of providing a specific response to offences committed (i.e., mediation, probation or detention measures). The importance of mediation within the context of reactions to juvenile delinquency in Catalonia is also shown by the fact that in the same year, 40.4% of the interventions carried out by all the juvenile justice teams working on mediation, probation and detention centres, consisted of a mediation activity. In 2002, 1,676 mediation cases were completed with the following results, which are shown in the reports issued: in 54% of the cases, victims accepted direct or indirect participation in mediation, in 37.8% of the cases, the victims did not participate, and in 8.2% of the cases the mediation was not successfully concluded. The 905 cases in which victims participated were resolved as follows: 105 had already been solved by the parties’ own accord before the prosecutor proposed mediation; 312 agreed to accept the apology or other form of indirect reparation without formalising a meeting with the offender; 488 agreed to participate in a conciliatory meeting and accept the moral and/or material reparation from the offender. The 634 cases in which the victim did not wish to participate mostly had to do with crimes of little significance and in which the degree of victimisation was also quite low. In 544 cases it was only necessary to mention the young offender’s interest in compensating for the damages caused in a letter to the prosecutor, and in the other 120, the offender carried out some activity to show that she/he indeed took responsibility for the damage caused to the victim. There were 137 cases in which mediation had to be suspended by request of one of the parties, the mediator or, albeit in fewer cases, the prosecutor.

8.

FOLLOW-UP PROCESSES AND PROGRAMME EVALUATIONS

Considering the first 10 years of experience (1990-2000) with a widespread participation of victims and offenders and in keeping with the four studies (Funes and Martín, 1993; Martín, 1994; Albá et al., 1994; Dapena and Martín, 1999) carried out up to the present to evaluate the mediation process and results, as well as programme users’ opinions, the following conclusions can be reached. It is a “win-win” situation: justice is perceived as closer to the parties involved and its social image has improved. VOM is a good way to get youth to take responsibility. The victim feels attended to, listened to, and her/his requests are taken into account.

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The common experience among offenders and victims is that the judiciary system reacts to the offence, and that furthermore, offers both of them the possibility to participate in a solution. This is also appreciated within the social context in which the conflict occurs and programmes are carried out. The capacity of the justice administration for comprehension of damages suffered by victims in their most personal and emotional realms, as well as in material and economic terms, is increased. The programme makes for a simultaneous distinction and consideration of the severity of the crime, as is defined in penal law, and the characteristics of the conflict, from the perspective of the victim and offender, in relation with the law and the consequences that the offence may have for the victim. It could be said, in light of the foregoing, that the victims do not feel as victimised, offenders feel more responsible and less delinquent, and both experience values that are useful to themselves and the community. Reinforcing these types of programmes is the key to promoting social peace and contrasting feelings of insecurity. Finally, it should be noted that the application of law 4/92 and the mediation programme, facilitated the opening of proceedings for crimes with little penal relevance, which worked against the initial aim of “dejudicialisation”, and had as a consequence the extension of the social control network. The reconviction statistics for Catalonia done by the DGJJ indicate that over periods of more than five years, 18.5% of the minors processed by the courts for the first time become repeat offenders. The same studies indicate that in the short term (one year), 13.2% of the minors repeat their crimes. In the various studies carried out up until now on the mediation programme, the repetition rate for short-term (one year) periods has ranged from 7% to 9%, whereas in longer periods, the repetition rate over the first eight years of programme application was 17%. This proportion is slightly below the general repetition rate. Specifically, 11.2% of minors that participated in the programme in 1996 committed a new offence before the end of 1997. The fact that re-offending among minors who have participated in mediation programmes is lower than that registered for the general population of minors tried in courts, shows that the results of mediation are positive, and in any case, no worse than those that could be achieved via standard punishment. The juvenile penal mediation programme in Catalonia has been studied in several doctoral theses and research projects as well as in articles published in specialised social work, education, criminology and legal journals. In conclusion, it can be stressed that current penal policy trends are increasingly emphasising citizens’ safety and demands for stiffer punishment

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of crime. This hampers the potential development of mediation and its application in especially severe cases. The result is that, under different circumstances, a significant share of the cases handled by mediation staff could be solved in school-based or community mediation services. It is also important to highlight the fact that, with this philosophy, many cases of crimes against persons (with clear consequences of victimisation) are being deprived of the positive effects that mediation has for the victim. Some authors (Del Campo et al., 2003) argued that, despite the possibilities for dialogue that mediation offers victims and offenders with different national and cultural backgrounds (to the benefit of greater comprehension between the parties and non-violent integration), the trends mentioned also block the access of foreigners into mediation programmes.

9.

THE THEORETICAL FRAMEWORK AND THE PRACTICE

The theoretical framework for the Catalan mediation programme is grounded on four main concepts: 1. The basic principles of action described in the foregoing paragraphs. 2. The benefits that mediation implies for the victim and the offender, from a conflict-resolution standpoint, and for the community and justice system, in the sense of a new rationality of the relationship between the two and criminal policy in a broad sense. 3. The regulation of the possibilities of application called for in the law 5/2000 and the juvenile justice law of Catalonia, which will determine the area of application and administrative organisation of VOM. 4. The intervention methodology that has been progressively developed. Along these lines, it can be stated that Catalonia is distinguished by the co-existence of three different approaches: the Harvard model, the transformation model and the circular-narrative model. The degree of inclination toward any of these models depends on the conception, internal discourse and evolution of the various staff members. Generally, a single mediator conducts mediation. Nonetheless, depending on the characteristics of the conflict and the number of persons involved, comediation techniques can be enacted, either to balance staff member workloads or to have higher possibilities for thoroughness and management16.

16

There are other areas in which mediation is carried out, but the mediators of the DGJJ are only concerned with cases derived from the prosecution office for the alleged commission of a crime. Mediation in family affairs is done by public or private services, in accordance

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No formal code of ethics for the practice of juvenile penal mediation has yet been established, although there are clear points of reference for its ethical application. The first point of reference is the document of basic principles of judicial action for application of Juvenile Justice programmes, which clearly expresses a will to ensure guarantees and respect for the rights and liberties of minors, as well as the need to avoid any judicialisation or interventionist positions that go beyond that which is strictly necessary in terms of law. The second reference is the law 5/2000 itself, which clearly outlines the conditions for application of juvenile penal mediation within a legal framework. In this context, the voluntariness of the parties is a prerequisite to initiate any action aimed at the reparation of the damages caused to victims. The third is the Recommendation R(99) of the European Council on VOM, in which the needs for the following guarantees are expressed: the parties voluntarily participate in mediation; the neutrality of the mediator in the performance of the mediation; the confidentiality of any discussions taking place in the mediation process, and the non-use of mediation as proof of guilt in penal proceedings.

10.

MEDIATORS’ PROFESSIONAL CHARACTERISTICS

Mediators of the Barcelona mediation and technical staff and the professionals of the probation enforcement staffs working in mediation in Girona, Lleida and Tarragona, are mostly hired employees (in most cases with a fixed contract), or to a lesser degree, civil servants. Only in the case of substitutions (due to illness, leave, etc.) are short-term contracts extended. This group is characterised by a high level of occupational stability. For the most part, when these professionals join the mediation and probation teams, they already have several years of experience in the area of juvenile justice. Most have acquired this experience working for other services that depend on the DGJJ, either in the area of technical advising or the enforcement of probation judicial measures or detention. One of the criteria also considered when selecting new mediators is the training in mediation courses or postgraduate programmes that they underwent in parallel to their professional activity.

with the Catalan family mediation law. In school issues, professionals from the educational system carry it out.

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The education and professional experience of mediators are directly linked to their professional careers in the field of educational and social work in juvenile justice, and with their academic background which, as with the rest of juvenile justice professionals, is highly diversified. The group is made up of professionals with prior education in social work, social education, psychology, law or other fields of social and human sciences. The Department of justice does not offer initial training on mediation. All of the personnel are selected to start her/his work on justice after University studies and according to previous professional experience. All personnel dependent on the DGJJ receive 40 annual hours of permanent training. Mediators, and any other interested juvenile justice professionals, can choose from specific educational offers in matters related with mediation and conflict-resolution techniques. Most of these courses and various educational activities are planned and offered by the Legal studies and specialised training centre of the Ministry of Justice. There is also a growing offer of master and post-graduate programmes given by several Catalan universities (1-2 years). With the aim to guarantee efficient teamwork, weekly meetings are held to discuss management criteria and intervention methodology. Case supervision sessions are also organised. There are two different types of coordination meetings. The first are for mediation and technical advising professionals that make up each team for a given area. These meetings are highly useful to establish management and case derivation criteria for a given geographical territory. The second type of meetings are specific for mediators and can bring together mediators from various teams. These sessions are aimed at the exchange of experience and further development of methodology. A professional from outside the institution leads case supervision sessions. Normally they are experts in psychosocial intervention (psychologists, psychoanalysts) and more recently, from the penal law field. Following a study on the volume of cases assigned to each mediator, the figure of 120 cases annually per mediator was obtained. This does not mean that each mediator carries out 120 mediations annually, as the figure also includes those cases in which a mediator has merely handled an extrajudicial resolution of the conflict without direct participation of the victim. The mediator’s responsibilities are: reception and selection of cases; interviews with the victim to analyse the viability of her/his participation; promotion of parties’ participation in the mediation process; directing the mediation meetings; facilitation of communication, dialogue and the achievement of agreements; notifying judicial bodies of the results; participation in coordination and supervision meetings.

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11.

CONCLUDING REMARKS

In Spain, there is a marked imbalance between the various AC with regard to the development of their juvenile justice, and consequently, mediation systems. In this regard, it must be clearly noted that the current trend of the European discourse and policies on security are not conducive, neither, to bring the necessary attention and resources devoted to Restorative Justice proposals. The offender orientation of the juvenile justice system is still much more focused on rehabilitation than in restoring damages and empowering the actors to manage their conflicts. The belief in juvenile justice models based more on personal needs of young offenders than in their potential abilities, limits mediation in its development capacity. In many cases, it is still considered much more appropriate (due to the offender’s personal and social circumstances) to respond with treatments than with promoting a change on the relationships among citizens, community and justice. There is also a trend to introduce into juvenile justice many matters that would be better handled in the area of social, educational, economic, family, health care or any other type of policy. This is highly negative, as it represents a lack of will to treat the causes of criminality, and a desire to resolve social problems with penal responses. The juvenile VOM programme in Catalonia has accumulated a wealth of experience. Nevertheless, there are many areas left to explore, especially regarding participation of re-offenders and those with more problematic or deprived psychosocial backgrounds. Nevertheless, in conclusion it is important to point out the efforts underway in Catalonia, to promote VOM also in the final phase of sentencing, within the realm of possibilities that the law stipulates for suspension, substitution or reduction of the sentence. This project also plans to apply VOM during the enforcement of measures in probation or detention, as a supplement to them and with the benefit to young offenders to leave the sanction null and void or reduce its term. Both formulae will permit Catalan juvenile penal mediation to handle more severe cases in which mediation can be highly beneficial for both the victim and the offender.

REFERENCES Albà, E., Elejabarrieta, F., Martín, J., Portillo, S., Trinidad, C., and Vilasó, M., 1994, Els programes de mediació: anàlisi psicosocial de les parts implicades, Col. Justícia i Societat, 12, CEJFE, Barcelona, pp. 135-217.

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Dapena, J., and Martín, J. (co-ordinators), 1999, La mediación penal juvenil en Cataluña, 1990-1997. Equipo de Mediación, Col. Justícia i Societat, 19, CEJFE, Barcelona, pp. 3167. Dapena, J., and Martín, J., 2000, Avaluació de l’aplicació de l’experiència pilot de mediació i reparació en la jurisdicció penal ordinària, Novembre de 1998 – Novembre de 1999, Departament de Justícia, Barcelona (unpublished). Del Campo, J., Martín, J., Vinuesa, R., and Vilà, R., 2003, La mediació amb joves immigrants a l’àmbit de la justícia juvenil, CEJFE, Barcelona (unpublished). El Defensor del Pueblo, 2002, Informe sobre el primer año de aplicación de la ley reguladora de la responsabilidad penal de los menores, El Defensor del Pueblo, Madrid (unpublished). Funes, J., and Martín, J., 1994, La mediación en la justícia juvenil: Experiencias de conciliación, reparación y trabajo en beneficio de la comunidad, d Col. Justícia i Societat, 12, CEJFE, Barcelona (unpublished), pp. 61-133. Martín, J. (1994), El programa de mediació a Catalunya: Estudi avaluatiu sobre l'aplicació del programa durant l'any 1992, Departament de Justícia, Direcció General de Justícia Juvenil, Barcelona (unpublished). Vall, A., and Villanueva, N. (co-ordinators), 2003, El programa de mediació penal a la jurisdicció penal ordinària. Equipo de Mediación, CEIFE, Barcelona (unpublished).

CONCLUSION

Chapter 17 JUVENILE OFFENDERS AND THE LEGAL SYSTEM: WHAT WE HAVE LEARNED FROM VICTIM-OFFENDER MEDIATION -

Simona Ghetti -

In numerous parts of the world, juvenile justice professionals, policy makers, social workers and laypeople are engaged in reflections on how to respond to youth crime. The concern that traditional approaches stemming from retributive and rehabilitative models may no longer be viable responses to criminal behaviour has generated alternative ideas (e.g., Morris and Maxwell, 2001). In the current volume, we learned that Europe, much like the rest of the world, has been experimenting with concepts and approaches originated within the Restorative Justice (RJ) model. RJ measures can come in many flavours, and Victim-Offender Mediation (VOM) is evidently only one of them. We originally selected to focus on VOM for a number of reasons, that were validated by the chapters in this book. First, given Recommendation No. R (99)19 of the Council of Europe concerning mediation in penal matters, we envisioned a bustling activity in countries with well-established programmes with mediation, as well as in those whose programmes are still at early stages. Thus, we selected VOM because we expected the opportunity to document numerous experiences. This expectation was met, and we hope that the readers found the variety of such experiences of great interest. Second, our interest in practices used to respond to youth crime coincided with the consideration that innovations are often more readily introduced within the juvenile justice systems than in the adult criminal justice systems. As such, we were convinced that examining VOM practices with juvenile delinquents would provide a clearer sense of the state of the art of VOM in

371 A. Mestitz and S. Ghetti (eds.), Victim-Offender Mediation with Youth Offenders in Europe, 371-379. © 2005 Springer. Printed in the Netherlands.

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Europe. We confirmed this tendency in numerous countries, such as Austria1, Ireland d2, Norway3, Spain4 and Italy5. Third, we were motivated by what could be construed as a rather selfserving reason: this book was originally conceived with the Italian experience clearly in mind. Thus far, VOM in Italy is almost exclusively a matter of juvenile justice6. Thus, we were particularly committed to gathering comparative information with respect to practice with juveniles. It should be added, aside from our own motivation, that common among those interested in RJ practice is the idea that there is no one ideal model of VOM, but there are numerous experiences all of which could constitute valid learning material. Thus, comparative information should be precious to understand how different interpretations and implementations of VOM have resulted from different historical and cultural contexts. That said, there are some critical issues that may be emphasised in these closing remarks. Specifically, I would like to address four topics: 1) VOM legislation and the place of VOM in criminal proceedings, 2) specificity of VOM practice with juveniles, 3) criteria for referral, and 4) the place of the victim.

1.

CRIMINAL PROCEEDINGS, LEGISLATION, AND VOM WITH JUVENILES

The practice of VOM is commonly construed with respect to its relation with the criminal proceeding and the extent to which it is regulated through specific legislation. As previously observed (e.g., Groenhuijsen, 2000) and as evident from the chapters included in this volume, VOM in Europe entertains different kinds of relations with the criminal proceeding. It is sometimes an inherent part of the criminal procedure: at certain stages of the proceeding, the case may be referred to a mediation service. Under certain conditions, if the mediation process is successful, there will be a tangible impact on the case sentence. This is observed in several countries such as Germany7 and Spain4. In contrast, VOM is sometimes used as a substitute to criminal proceedings: the case is diverted early on to mediation services, which 1

See Hofinger and Pelikan, Chapter 8. See O’Dwyer, Chapter 3. 3 See Kemeny, Chapter 5. 4 See Martin Barberan, Chapter 16. 5 See Mestitz and Ghetti, Chapter 15. 6 At the time of this writing only one VOM centre for adults existed (founded in 2004 in Bolzano). 7 See Kilchling, Chapter 11. 2

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ensure that negotiation and communication occurs between the victim and the offender so that a settlement of some kind is agreed upon and the case may not re-enter the juvenile justice system. Examples of this approach can be seen in countries such as Norway. There are also countries in which VOM (and other RJ measures) may be practiced both as a phase of a criminal proceeding and completely independent of it, such England and Wales8. Finally, in the adult criminal justice system, there is also a model of VOM practice independent of the criminal justice system (for example, experiences of VOM after sentencing). This approach is not a common practice with juveniles9. It is also clear that there is some variability in the extent to which specific legislation for VOM (or VOM with juvenile offenders) is currently available. As evident from the chapters presented, about half of the countries examined rely on specific legislation, whereas the other half do not. The lack of specific legislation does not prevent VOM from occurring even when VOM is clearly applied as a step of the proceeding. In Italy, for example, VOM with juvenile offenders is possible only when prosecutors or judges refer the case to the VOM services. As such, it is an inherent part of the judiciary. However, to date no legislation is currently available to rule the conditions under which it occurs10. The costs and benefits of having binding legislation on VOM are shared by numerous authors and emerged clearly during the final seminar held in Italy in 200311. On the one hand, the existence of binding norms provides safeguards for equal treatment. To the extent that legislation is unavailable, mediation programmes are often structured according to local needs, priorities and procedures. This may lead d to idiosyncrasies in VOM practice potentially resulting in unequal treatment for juvenile offenders. Also, there is a risk for VOM to remain a marginal practice. On the other hand, the absence of legislation buys great flexibility: several countries have known periods of true creativity in their experimentation with RJ practices in the context of absence of legislation, or presence of “soft law”. For VOM to work well, a clear understanding of the values underlying RJ practices by all parties involved is crucial. It seems that such promotion and sharing of values has been encouraged in contexts in which flexibility existed. Overall, there appears to exist considerable variability is Europe with respect to VOM relation to the criminal proceeding and the presence of 8

See Miers and Semenchuk, Chapter 2. But see Kemény, Chapter 5; Kilchling, Chapter 11, Miers and Semenchuk, Chapter 2. 10 See Mestitz and Ghetti, Chapter 15; Lemonne and Vanfraechem, Chapter, 9 and Whalin, Chapter 4. 11 International Seminar: Victim-Offender Mediation: organisation and practice in the juvenile justice systems (IRSIG-CNR, Bologna, September 19-20, 2003). 9

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legislation. Given that our research was aimed at understanding VOM with juvenile offenders, it is of interest to ponder whether or not the relation with the criminal proceeding and legislative choices reflect specific considerations on the matter of suitability for youth offenders. In this regard, it appears that the variability observed depends largely on general matters of legal and policy tradition specific to each country, rather than on particular considerations concerning the nature and characteristics of RJ practice with juveniles. There are, however, a few exceptions to this. When applying restorative measures in France12, for example, legal provisions clearly make a distinction between goals pursued with adult offenders and those pursued with juveniles. Note, however, that such a clear distinction is made in the context of reparative orders and not of VOM. Even in the countries in which legislation concerning VOM distinguishes between juvenile and adult offenders, it appears that the distinction is made mostly because the juvenile justice system and the adult criminal justice system stand on different grounds as a whole, but again with little attention to important differences between the juvenile and the adult offender. Yet, youth offenders may understand and react to practices differently than adults. Research on juvenile defendants’ competences in the legal system has underscored the fact that there may be substantial differences between adults and adolescents in their ability to exercise good judgement in decisions making (e.g., Grisso, 1998; Woolard, 2002). Specifically, substantial differences have been outlined with respect to their ability to assist counsel (e.g., Woolard and Reppucci, 2000), and to understand the concept of voluntary act when providing self-incriminating statements (e.g., Grisso, 1981; Schmidt and Reppucci, 2002). This research has clearly indicated that adolescents may require particular procedures given their agerelated characteristics. To date, there are virtually no studies that systematically examine agerelated differences in understanding RJ procedures, despite VOM practice being based on concepts such as voluntariness, responsibility and community that may well be understood differently at different ages. As such, adjustments may be advisable in consideration of the offender’s age and level of cognitive and social development. Whether differences on these dimensions should impact practice is an empirical question that awaits investigation.

12

See Milburn, Chapter 14.

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375

SPECIFIC FEATURES OF VOM WITH JUVENILES

Although the legislation on VOM and the role of VOM in the criminal proceeding do not seem to take into account specific characteristics concerning juvenile offenders, some features of the practice do. For example, a common feature in VOM with juveniles in the presence of the offenders’ parents in the mediation meeting. Parents are typically considered as a safeguard for children, but they may also claim a more active role13 or attempt to manipulate the process to the benefit of their child. Milburn14 explicitly asked what the position of the offenders’ parents is, that is whether they take part in mediation because of its penal consequences or because the offence had civil implications. In reflecting about the specificity of VOM practice with juveniles, it thus seems relevant to pay close attention to the persons that may be present precisely because of the age of the young offenders, such as parents or other individuals exerting parental authority. One additional feature in VOM practice that seems to deserve further reflection concerns cases in which the victim is an adult. One of the defining features of VOM is that the parties meet in neutral grounds in an attempt to communicate and overcome the conflict. For example, Hokwerda and Weijers15 report data showing that on average the victim of youth crime is an adult. An age discrepancy between offender and victim may challenge the very notion of common ground and mutual understanding: the victim may have superior cognitive and emotional resources compared to the juvenile offender, which may on the one hand prevent the victim from fully benefiting from the process, but on the other create a disparity (real or perceived) between the adult d world, represented by the mediator and the victim, and the adolescent world, represented by the offender.

3.

CONSIDERATIONS ABOUT CRITERIA FOR REFERRAL

The statistics presented in earlier chapters provide interesting information as to the types of cases that are mediated with juveniles in Europe. Above and beyond the type of offence committed and the individual characteristics of the juvenile offender, offenders must recognise their responsibility, decide voluntarily to take part in VOM, be invested in the resolution of the existing 13

See Czarnecka-Dzialuk and Wójcik, Chapter 6. See Chapter 14. 15 See Chapter 13. 14

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conflict, and express some desire to offer reparation. These features should not be surprising because they represent some of the defining features of VOM. Also not surprising is the attention to VOM in cases in which a relationship exists between the victim and the offender prior to the offence16. This referral criterion emphasises that VOM is an important a resource in the resolution of conflicts that may otherwise run the risk of becoming permanent. This is particularly true when the parties in conflict can hardly avoid each other in their daily lives (e.g., family members, neighbours). Although this criterion underscores the role of VOM in conflict resolution when the relationship matters to the parties involved, there is the risk that this criterion may be used restrictively. In Italy, for example, a substantial number of public prosecutors and judges report that they believe that a preexisting relationship is a pre-requisite for VOM referral. Such relationship is considered to be the only guarantee that both parties are truly motivated to resolve the conflict and thus will not use VOM instrumentally. Generally speaking, the type of crime committed per se does not seem either to encourage or preclude the referral to mediation. There are in fact arguments in favour of referring both relatively severe and minor offences. The arguments in favour of recourse to VOM in severe offences are often outlined in the literature (e.g., Aertsen et al., 2004). For example, the victim may experience particularly strong discomfort when the offence is serious, and VOM or other RJ measures may be appropriate to reduce it. Of course, Aertsen et al. (2004) underscore the importance of severity from the victim’s subjective standpoint and not just with respect to the crime place in the penal code. The argument in favour of using VOM in minor offences is of interest with respect to juvenile offenders. Prosecutors may dismiss cases (or ask the judge to do so), if the offences are rather minor. The absence of tangible consequences to a criminal act may be detrimental to the juvenile’s understanding of their wrongdoing, and may even function as an “encouragement” to offend again because of the absence of any measure or intervention that could break off the offending cycle at its initial stages. In this context, VOM may well be a valuable developmental moment for juveniles involved in cases that would be otherwise dismissed. In this regard, I note the interesting experience of Finland where there are experiences of VOM even with juveniles who are younger than the age of criminal responsibility17.

16 17

See for example, Mestitz and Ghetti, Chapter 15; Schroeder, Chapter 10. See Eskelinen and Iivari, Chapter 7.

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WHERE IS THE VICTIM IN VOM WITH JUVENILES?

Central to VOM is the concept of parity between the victim and the offender. In the juvenile criminal justice systems, there seems to be a risk for this basic condition not to be met. Specifically, VOM procedures may run the risk of being offender-focused. The juvenile justice systems focus on the youth, and thus VOM may be used with the goal of exerting some beneficial effects on the youth. Kilchling18, for example, points out that this unbalance in Germany is evident from the very translation of VOM, which is TäterOpfer-Ausgleich (i.e., offender-victim instead of victim-offender). From this standpoint, some countries, such as the Netherlands19 are much more advanced than others in offering victim services functioning as agencies for the support and protection of victims’ rights. Despite the importance of such services, priority differences exist between the juvenile services and organisations offering and promoting VOM. These differences lead to the empirical question of whether there exists a relationship between the extent to which VOM is part of the judiciary, and the extent to which the victim is granted equality with the offender. One interesting study providing indirect evidence that this factor should be further examined by researchers was conducted by Strode (1997). The study revealed that when VOM was ordered by the courts, VOM victims experienced low levels of satisfaction with the justice system response to their case. These findings should be qualified as follows. First, dissatisfaction was mostly due to juveniles’ failure to comply with the agreements, and second, voluntariness of participation appeared compromised in this study. Thus, there may be reasons other than the close link with the judiciary that may have resulted in low levels of victims’ satisfaction. Nevertheless, the interplay between VOM and the dynamics of legal proceedings should be closely observed. Evidently, more research should be conducted to further characterise the experience of victims in the context of VOM with juvenile offenders. It should be noted that many European countries fall short of this evaluative research, while in other European countries this type of research has never been conducted at all. Though the concern for the role of the victim in VOM is crucial in general, and the risks for the victim to take a secondary or instrumental role in the juvenile justice systems are real, it seems important to avoid thinking about this problem as a polarisation between the interests of the victims and those of offenders. Researchers have documented victims’ perceived advantages and satisfaction in participating in VOM, particularly when 18 19

See Chapter 11. See Hokwerda and Weijers, Chapter 13.

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direct meetings are involved (Umbreit, Coates and Vos, 2000; 2001). Thus, the results available to date are encouraging. Nevertheless, the variety of VOM programmes open the door to a variety of research questions possibly resulting in the systematic comparison of key features of the programmes. Further, the field still knows relatively little about the victims’ perception and psychological consequences for those who did not participate in VOM. Given the interest of researchers and practitioners in the field of VOM and RJ in general, there is room to envision an exciting period for research and practice in the near future.

5.

CONCLUDING REMARKS

The aim of this book was to document the state of the art concerning VOM practice within the European juvenile justice systems. Although there are differences in the extent and ways in which VOM is implemented, the similarity among different experiences is striking. A natural interpretation of this similarity is that restorative practice principles are so deeply rooted in individuals’ sense of justice, that they emerge in relatively similar fashion across countries and legal traditions. This would also explain why practices inspired by restorative principles have been carried out all over the world, sometimes to recompose such dramatic societal fractures as those produced by Apartheid in South Africa. Overall then, though aware that there are inherent constraints to generalized restorative practice (e.g., voluntariness of participation), and that it would be both naïve and inappropriate to expect such generalized practice, it seems safe to assume that in the coming years Europe will witness further promotion and development of VOM and RJ practices.

REFERENCES Aertsen, I., Mackay, R., Pelikan, C., Willemsens, J., and Wright, M., 2004, Rebuilding Community Connections-Mediation and Restorative Justice in Europe, Council of Europe Publishing, Strasbourg. Grisso, T., 1981, Juvenile’s Waiver of Rights: Legal and Psychological Competence, Plenum Press, New York. Grisso, T., 1998, Forensic Evaluation of Juveniles, Professional Resource Press, Sarasota, Florida. Groenhuijsen, M., 2000, Victim-offender mediation: legal and procedural safeguards. Experiments and legislation in some European jurisdictions, in: Victim Offender Mediation in Europe. Making Restorative Justice Work, European Forum for Victim Offender Mediation and Restorative Justice, ed., Leuven University Press, Leuven, pp. 69-81.

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Morris, A. and Maxwell, G. (eds.), 2001, Restorative Justice for Juveniles, Hart Publishing, Oxford. Schmidt, M.G., and Reppucci, N.D., 2002, Children’s rights and capacities, in: Children and the Law: Social Science and Policy, B.L. Bottoms, M. Bull Kovera, and B.D. McAuliff, eds., Cambridge University Press, Cambridge, Massachusetts, pp. 76-105. Strode, E., 1997, Victims of property crime meeting their juvenile offenders: victim participants evaluation of the North Dakota County Community Corrections VOM Meeting Program, Smith School of Social Work (unpublished Master’s thesis). Umbreit, M.S., Coates, R.B. and Vos, B., 2000, Victim impact of meeting with young offenders, in: Restorative Justice for Juveniles, A. Morris and G. Maxwell, eds., Hart Publishing, Oxford, pp. 121-143. Umbreit, M.S., Coates, R.B. and Vos, B., 2001, The impact of victim-offender mediation: Two decades of research, Federal Probation, 65:29-35. Woolard, J.L., 2002, Capacity, competence and the juvenile defendant: implications for research and policy, in: Children and the Law: Social Science and Policy, B.L. Bottoms, M. Bull Kovera, and B.D. McAuliff, eds., Cambridge University Press, Cambridge, Massachusetts, pp. 270-298. Woolard, J. L and Reppucci, N. D., 2000, Research juveniles’ capacities as defendants, in: Youth on Trial, T. Grisso and R. Schwartz, eds., University of Chicago Press, Chicago, Illinois, pp. 173-191.