CSONGOR HERKE

MEDIATION AND RESTORATIVE JUSTICE

 

 

 

 

I.                    Victim protection and criminal justice policy

 

On July 1, 2003 following a long period of waiting and several modifications Law XIX. of 1998 dealing with criminal procedure (CP.)[1] finally came into effect. According to the explanations of Law II. of 2003 that put Law XIX. into effect and also relevantly modified several of its paragraphs, there are two basic tendencies to be noticed in international penal justice[2]. One of them believes enlargement of criminal justice effects and increasing severity of repressive criminal justice to be the guarantee of effective crime reduction[3].

The other tendency favours other means of punishment (measures) to sentence of imprisonment [4]. As an effect in the ‘80s and ‘90s new solutions started to be applied in an increasingly wide field of criminal justice besides traditional alternative punitive sanctions (conditional sentence of imprisonment, fine, other measures[5]). Some of the new solutions were diversion, reparation solutions and discretionary accusations and victim-offender mediation.

According to GYÖRGYI[6] in the system of punishments there have to be elements that primarily aim compensation to the victim. The formation of these elements requires however a radical shift of perspective in criminal justice policy and can be reached only through formation of harmonized institutions  of the material law and the criminal procedure. The positions and statements of many of the international institutions[7] and also that of organizations created especially for that purpose since the 1980s focused mainly on victim protection. According to Point 3. of Recommendation nr. R (96) 8. of the Council of Europe referring to the European criminal justice policy one of the basic tasks of criminal law is protection of crime victims. And Point 5. says that criminal law in each state has to promote social reintegration for offenders and support for victims[8]. Point 35. of the Crime Prevention Action Plan of Milan states that transformation of the socially, politically, culturally, economically marginalized and deprived status of individuals belonging to various social strata during the criminal procedure is to be avoided, i.e. according to GÖNCZÖL offence proportional punishment is not inflicted equally on all the offenders[9]. Thus the sentence has to consider also the differences between offenders thus supporting their rehabilitation and resocialisation. Another case to be avoided is when offenders feel victims of the criminal procedure[10].

CP-amendment of 2002[11] introduced into the prosecution delay regulation of the CP a measure stating that in his decision to delay prosecution the prosecutor can compel the suspect to respect certain rules of conduct or to perform any other duties. Such duties can be for example that the suspect

·        should pay total or partial compensation for damages to the injured party,

·        make reparation to the injured party in some other way,

·        donate money for a pre-defined purpose or do community service (reparation in favour of the community),

·        participate in psychiatric or alcohol dependence therapy.

The prosecutor can order the offender to perform more than one of these or other rules of conduct and duties.

According to the CP at present the only option to avoid prosecution (or at least the court phase of prosecution) besides delay of prosecution under the condition of performing prosecutor assigned duties is making compensation and/or reparation to the injured party[12].

 

II.                 Mediation and the Recommendation of the Council of Europe

 

According to SZABÓ criminal justice policy is the activity of authorized organs of the state to confront crime. However criminal justice policy is also a crime preventing policy, since the phenomena of crime is a ”criminalized deviancy”[13]. The quality of the administration of criminal justice does not depend only on the government, but upon the work of the legal practitioners and legal experts (KÖVÉR)[14]. Thus criminal justice policy can take effective action and reach its goals only if the activity of the authorities is meat by the active collaboration of the participants of the legal process. A good example of such collaboration is mediation.

The Ministerial Committee of the Council of Europe defines basic requirements of mediation in its Recommendation (99) nr. 19. According to the Recommendation shift of tendency in the criminal justice policy of some of the member states give ground for an increasingly wide application of the mediation process. Arguments in favour of mediation are the following:

·        compared to traditional criminal procedures mediation is a flexible, wide ranging method, more effective in problem solving, and offering more completion and selection possibilities,

·        the participation of the victim, the offender and other parties concerned (other interested people or affected communities) in the criminal procedure had to be more intense,

·        the legitimacy of the victims’ interest is emphasized more if we help them face the offender and communicate with him (apology, amends),

·        the sense of responsibility of the offenders has to be increased and possibilities to start afresh have to be secured for them (reintegration, rehabilitation),

·        mediation can decrease fear from the importance of the role played by the person and the community in the process of prevention, crime handling and conflict solving.

 

According to the Recommendation mediation requires special qualification, practise and accredited training. Mediated criminal cases require the cooperation of the non-governmental organisations and local communities and coordination and harmonization of the cooperation between the person and the community. In communities benefiting of the work of the mediators all the social strata represented in the respective community have to be involved into this work, including minorities and ethnic groups[15].

In mediation both sides have to participate on a voluntary basis. Discussion during a mediation counts as secret material and cannot be used in any way in the crime process. The fact that the offender shows willingness to participate to a mediation process should not constitute on its own a basis to conclude that he admitted his guilt. The Council of Europe sets forward as a principle that the parties are entitled to mediation at all stages of the criminal procedure (even at court stage). This means mediation has to be a service easily available for all and at all stages of the criminal procedure[16].

The mediator is a highly qualified specialist who always acts according to the request of the parties and does not press any of the parties to enter an agreement, does not threaten them (telling the injured party that his damages will not be compensated and telling the suspect he will get a more severe punishment if he is trialled in a traditional court unless he enters an agreement). The mediator usually has an obligation to secrecy, however, point 30. of the Annex of the Recommendation compels him to let the authorities know all the data that point to a more severe crime.

The parties have to reach an agreement without being constrained in any way to do so. Mediators are obliged to inform the authorities involved in the criminal procedure about the stages and results of mediation. Mediators’ report is not supposed to contain data concerning the content of the mediating sessions, nor any opinion of the mediator about the parties’ behaviour during mediation. The agreement reached during the mediation process (an the sentence sanctioning it) has a res iudicata status and based on the principle of ne bis in idem excludes all further appeal.

 

III.               Variations of restorative justice

 

Today’s justice is in danger of being driven further and further from those directly affected – the victim and the offender – by the fact that members of the court having also the support of the defending council turn each case in a judicial issue[17]. Mediators in their turn are threatened by this danger as well in case they become too official. One of the main goals of the mediation process is that solutions to conflicts should be given by those who originally had the conflict, but this process (just like traditional criminal procedure) can also become impersonal if the mediator becomes estranged from the parties.

According to VIGH[18] three conceptions of justice became general since the beginning of the 20th century:

a)      retributive justice, where imposing a retributive punishment proportional to the offence is seen as desirable (and so the injured party and the damage caused to him are irrelevant),

b)      preventive justice, where influencing the future behaviour of the offender, i.e. attempting to prevent him from re-offending is considered to be the main goal of punishment, and finally

c)      restorative justice, where compensating the victim for the damages and restoring the situation to the pre-crime conditions (and besides these rehabilitating of the offender and involving the community) are considered to be the main tasks of justice.

 

Restorative justice is called compensational restorative justice by VIGH and simply restorative justice by GÖNCZÖL[19]. Considering the fact that restorative justice aims not only to compensate the damages, but rather to restore the original (pre-crime) situation I will further use the term proposed by GÖNCZÖL.

 

VIGH enlists 5 main characteristics of restorative justice[20]:

·        evaluation appropriate to the objective situation of the crime (including damage and affront) has to be restored,

·        the role of calling to account is to solve the conflict between offender and victim and to restore the disrupted situation of the community,

·        justice also aims to rehabilitate the offender and reintegrate him into the community,

·        the sanction inflicted upon the offender is not a retribution of the crime that has been committed, but rather a means of preventing further crimes in order to achieve an optimal social co-operation,

·        finally attempts to socialize justice are an important element (e.g. calling to account through the social court, disciplinary procedure at the workplace, through the mediation process).

 

According to WRIGHT restorative justice has three forms[21]:

a)      authoritarian

b)      democratic and

c)      unilateral restorative justice.

 

ad a) Several countries adopted restorative justice, but in a different form: courts and court officials still maintain control over the procedure and they make the decisions, observing however the opinion of victims and offenders[22]. According to WRIGHT authoritarian restorative justice is basically patronising. It presumes that empowered officials know what is best for the others. It has three relevant characteristics:

·        decisions are made by officials and authorities and mediation services between victim and offender are also organized by them (participation of non-governmental organizations is insignificant),

·        the idea of reparation has a very narrow sense, the outcome is more important than the process,

·        it is far more concerned with the offender than the victim and in most cases it is applied as a punishment (reparation is of secondary importance).

 

In the process of the authoritarian restorative justice victims can rarely give their consent, they participate in a very small degree in finding and implementing solutions to the case. The social worker making a report for the court has the possibility to informally discuss reparation with the victim, but the discussion has to take place and the decision of the social worker has to be made before he had the chance to speak to the accused.

One of the goals of the mediation process is to shorten the procedure. However, sometimes this can reach exactly the opposite effect: in cases that can be easily handled and quickly solved by a traditional court agreement between victim and offender can take a far longer time. Thus at times when the time is short for the procedure, this state of facts argues against applying mediation. This is what happened in Great Britain when politicians decided court procedures had to be accelerated. The average time spent between the arrest and sentencing of recidivist juvenile offenders was 142 days. Instead of determining a shorter maximum duration for the procedure, they cut down to half the average time spent between the arrest and sentencing, i.e. 72 days[23]. Because of the great pressure the courts have to deal with there is little time for the victims to decide whether they want to have mediation or not. Thus in England in some of the cases such a situation is created that the court withdraws for hours only, until the reparation and action sentences are written[24]. Thus victims are contacted only through telephone or not at all.

Authoritarian restorative justice is characterized by a narrow interpretation of reparation. According to STRAW reparation may be part of the victim-offender mediation process, but mediation does not play a role in determining the extent of the reparation[25]. Official directives recommend social workers who have to write their report before the reparation sentence to suggest as reparation such actions that are rather related to the committed crime than the person who committed them.

Thus the offender does not have the chance to offer reparation, he is compelled to implement an action appointed by the court in this sense. Victim-offender mediation is an available option, but only after the court decided what the reparatory action would be. They discuss the reparation action with the victim, but he has to decide about reparation without having any possibility to actually meet the offender. Thus only a small part of the conflict is solved by those affected (the victim and the accused), most of it is controlled by the representatives of the criminal court.

Often the sign of the fact that the criminal process is focused on the offender and his crime, instead of the victim is that a seemingly restorative sanction is used in a punitive way. According to LAUNAY and MURRAY there were even cases when the victim and the offender came to an agreement concerning reparation and the court increased the punishment arguing that the earlier agreement did not reflect proportionally the committed crime. This caused disappointment to both parties, since the terms of their agreement were not respected. The best form of reparation is compelling the offender to participate to a victim-offender group.[26]

Restorative justice is authoritarian in cases when the offender is confronted with the effects of his actions. Shaming him can be part of confrontation. Authoritarian restorative justice has the tendency to be unilateral: it focuses rather on the offender and not the victim. The content of the reparation action is decided by the court and victim-offender mediation is regarded simply as a process of confronting the offender with his deed[27].

 

ad b) The main characteristic of the democratic (community-based) restorative justice is that it functions through and for the community. This kind of restorative justice has a broad sense of reparation and aims to be useful both for the victim and the offender.

According to WRIGHT mediation services have two main bases: financial resources and the work accomplished[28]. These can be reached on different levels:

 

Financial Resources	Accomplished work
state budget and local government (provision of hospitals, social organs etc.) taxes of individuals and firms sums of money secured by charity institutions donations from individuals and organizations	services offered by state organs and local governments services offered by non-governmental organizations (e.g. Victim Assisting Organization) specialists hired by non-governmental organizations and volunteers volunteer work of the individuals

 

On both sides of the list the first point concerns the actions of the state, the last point is the most democratic and community-based measure. The non-governmental organizations have an advantage over the authorities: they are independent and thus free to criticize governmental policy.

Community benefits from democratic restorative justice just as much as from the authoritarian restorative justice. However the first one is more democratic, because it functions with direct participation of the people. Systems that are using democratic restorative justice become community-based. Of course they need to cope with compulsion as an ultima ratio as well, but they first try the effect of methods based on voluntary actions. In contrast with authoritarian restorative justice democratic restorative justice allows the victim, the offender and helpers to decide, if it is possible, what the reparation (but not the punishment!) should be. The families of the victim and the offender may participate to the procedure without being considered disfunctional[29]. According to BAZEMORE and WALGRAVE both formal and informal justice are to be emphasized[30].

 

Democratic restorative justice considers that in the criminal procedure the process itself, communication between victim and offender is no less important than the outcome (work, apology, compensation etc.). The offence suffered by the victim probably cannot be restored, but the probability that the accused will re-offend has to be decreased. Democratic restorative justice treats all equally, but treats ” the victims more equally” than the others. Possible gain for the victims is at least as important as influencing the offender.

 

The table below presents the main characteristics of authoritarian and democratic restorative justice[31]:

Authoritarian restorative justice	Democratic restorative justice
Authorities decide	The affected ones decide (involving the community)
Punishment inflicted is in proportion with the crime committed	It adjust to the circumstances of the victim and of the offender
Applied only in case of juvenile offenders	Applied in the case of all the offenders
Applied in case of insignificant offences	Applied at all kinds of offences
The offender is complied to go along	It starts with an offer of reparation from the offender
Rapidity of the process is the goal	The parties have time to come to an agreement
Supplementing punitive system	Restorative system
Punitive community service	Reparation aimed community service

 

ad c) Unilateral restorative justice sums up measures that are not punitive, but attempt to help benefit either the victim or the offender. As a response for the strictness of the 19th century punishments (solitary confinement, imposed silence etc.) in the 20th century initiatives to rehabilitate offenders have appeared. Restorative measures for the victims appeared only later[32]. Since 1988 courts in Great Britain have to specify the reason for sentences that fail to mention compensation or/and reparation[33].

In 1983 at Strasbourg a European Agreement was signed concerning compensation of victims of violent crimes. The Agreement was reinforced by Governmental Resolution of the Hungarian Government nr. 2321/2001. (XI. 5.). As a matter of fact in 1999 the Hungarian Government indicated in a separate resolution the judicial tasks and other measures regarding protection for crime victims and for their relatives and regarding full or partial compensation[34]. In conformity with this Governmental Decree nr. 209/2001. (X. 31.) was enforced, which however regulated state compensations only for victims of violent crimes.

Besides state compensation many restorative initiatives and projects function in Western Europe. Part of them are victim assisting organizations offering voluntary help to crime victims. Others compel the offender to offer volunteer work and the work is mainly done for the benefit of the victim[35]. But the goals of these programs have got confused: they are rehabilitating and punitive at the same time. And the aspect that physical work is used as a punishment gives the impression that work is an unpleasant, avoidable action.

Thus we can state that unilateral restorative justice cannot fulfil its goal, since supporting either the victim or the offender (and not both at the same time) it does not promote communication between the parties.

 

 

IV.               Summary

 

Restorative justice can serve for the best interest of both parties of the criminal case and of the authorities. For if the state considers the interests of the victims at least as much as that of the offenders, general sense of security will increase. According to UMBREIT and ROBERTS many of the victims consider it more important to have their questions answered by the offender and only a smaller part requests compensation and reparation[36]. The benefit of the offender is that he has to accept his accountability more consciously. However, this can be achieved only if the mediation process does not aim to condemn the offender and goes along as possible with the reparation offered by him.

Mediation is profitable for society as well: the probability that offenders admit their deeds is higher, they understand the effects of their deeds in other people’s lives, they talk openly about the pressures leading to the crime, thus everybody can learn from each case. The probability that the offender makes reparation if he had previously agreed to do so is higher as well. This however requires social help: offenders have to be secured working possibilities, education etc.

Restorative justice is in the best interest of authorities as well. But to be wholly effective restoration has to be done in such a manner that the court, the prosecution and the police would not feel that the mediation process diminishes the authority of the official organs or that it even leads to disconsideration of the rights of victims or offenders. Practise shows that the number of confessions increased and the families of the offenders participate more and more to Family Group Conferences, since mediation processes have been introduced[37]. In cases when offenders confess the sentence is also more legitimate and the court does not have to spend time deciding whether the offender had committed the crime or not (since this is beyond doubt), but can concentrate freely on the other issues of the case (compensation, reparation etc.).

In order that mediation process would go well and be able to reach its goals, these goals need to be clearly formulated. Mediation groups of local and national level specialized in a certain group of cases have to be formed. A mediator evaluating organization needs to be created in order that only well qualified specialists would participate to the mediation process. And data operated by mediation organizations have to be transmitted to crime prevention organs as well to help their activity. Also the prosecution, the court and the police should be empowered to have the right to refer to mediation processes[38].

The efforts of retributive justice did not reach the goal set out at the beginning[39]. This kind of justice is not suitable – at least not in any kind of case – for an adequate reaction to crime: it serves neither the goals of rehabilitation, nor those of the victim protection well. Most citizens are not vindictive and would rather choose diminished legal rights instead of imprisonment for their victims [40]. The primary goal of calling to account should be rather reparation of the damage or injury caused by crime instead of severe punishment inflicted upon the offender (and implicite isolation from society)[41]. Considering present tendencies it can be easily foretold that restorative justice will have an increasing role also in the criminal justice policy of the European Union[42]. A fact that should by no means be neglected in formulating the short and long term criminal justice policy of our country, now that we are steps away from EU-accession.