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Victim-Offender Mediation

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Victim-Offender Mediation Editorial SepteMber In this second issue of the newsletter of 2011 to effectively deal with difficulties, both criminal 2011 Edit Törzs discusses the adoption and integra- and civil, that arise. Mark provides some impres- Volume 12, issue 2 tion of restorative justice to fulfil its legislative sive figures in terms of the positive impact that duty under the European Union Council Frame- restorative practice is having within both schools work Decision 2001/220/JHA on the Standing of and the youth justice system. Inside this issue: Victims in Criminal Proceedings. While the use Robert Cario, a Professor Criminology and Victim-Offender Mediation of mediation to resolve criminal offences has Criminal Sciences Co-Director, Master of Crimi- in Hungary steadily increased year on year, Edit argues that nology, University of Pau and Pays d’Adour, up- 1-3 punitive attitudes are hindering the widespread dates us on the use of restorative justice within Newsflash use of mediation around the country. France. He highlights the limited use of diversion 4 The second article, by Mark Finnis, discusses the in general, and restorative justice in particular, use of restorative justice within schools and a which he attributes to a disjuncture between re- Readers’ Corner range of other agencies to assist parents and storative justice and the penal culture in France. 5 children to build, maintain and repair relation- Events ships between themselves and others. The vision Dr. Kerry Clamp 5 for Hull is to create a restorative city whereby Co-ordinator of the Editorial Board Hull - Heading for a Restora- all agencies work through a restorative approach tive City 5-7 Restorative justice in France. Victim-Offender Mediation A quick overview in Hungary 7-8 Mediation as a method of conflict resolution has duty under the European Union Council Frame- been used in Hungary since 1992 in civil cases by work Decision 2001/220/JHA on the Standing a number of NGOs, especially in cases concern- of Victims in Criminal Proceedings. The Code of ing family matters and young people. During the Criminal Procedure and the Criminal Code have mid-1990s a number of criminologists had argued been amended adding a set of rules to regulate for using mediation in criminal cases and in 2003 mediation in criminal procedure. Detailed rules restorative justice became a priority for the Na- on VOM can be found in the Act on Mediation tional Strategy for Community Crime Prevention in Criminal Cases (2006/123.) and in several de- (2003). However, steps towards the legal and in- crees of the Minister of Justice. stitutional implementation of victim-offender me- 1.1. Use of mediation diation (VOM) were only taken in 2006. I agree VOM can be applied both in cases of juvenile and with the statement of Hungarian researcher Bor- adult offenders. The legislation defines the kinds bala Fellegi: The development of restorative justice in of cases the prosecutor or the judge is entitled Hungary has largely been a top-down process con- to refer to mediation. According to the applicable ducted by the State. There were some initiatives taken rules, the case can be referred to mediation if the by civil organisations, but these were isolated attempts crime is: that had some, but not a broad or significant social • a crime against the person (e.g. physical vio- impact. The weakness of their influence mirrors the lence, harassment but sexual offences are exclud- weakness of civil society in general. It also reflects the ed); low level of social cohesion, which is a relevant issue • a traffic-related offence (e.g. causing traffic ac- from a restorative justice perspective (Fellegi et al, cident with serious injury); forthcoming). • a crime against property (e.g. theft, fraud, 1. Legal background criminal damage etc.). Hungary has introduced VOM to fulfil its legislative However, this is prohibited where the particular crime is punishable by more than five years of imprisonment. Therefore, VOM is driven and supported by central govern- VOM is excluded by law in the following cases: ment. Neither local government, nor NGOs, nor the parties • repeat offending whereby a similar crime is committed involved have any financial obligations in this regard. This may for the second time or committing a crime more than appear to be beneficial for these various bodies but in prac- twice after s/he had been sentenced to prison before; tice funding arrangements are problematic. As resources are • organized crime; insufficient to increase the staffing levels in order to meet • the crime results in death; new tasks, probation officers have to manage VOM alongside • the crime is committed intentionally during the probation their existing probation work. period or suspended sentence; Probation officers are required to attend at least two 30- • the crime is committed intentionally within two years af- hour courses in mediation, which include both theoretical ter successful VOM. and practical training, and approximately 90-hours in-service 1.2. The referral process training on restorative justice. They also participate in the A case can only be referred to mediation if the criminal pro- mentoring scheme, attend regular case discussions and meet cedure has actually started. It is the police’s duty to inform with their supervisor. There are currently around 60 specially victims and offenders about the possibility of mediation, how- trained mediators. ever in practice this does not always happen. The prosecu- 2.2. Mediation procedure tor is the first person in the procedure who may order the Offenders and victims are usually informed about the possi- suspension of the criminal procedure and refer the case to bility of VOM by the police, by their lawyers or by probation mediation as a diversionary measure. Both the suspect and officers providing a report during the investigation phase of the victim (or their legal representatives) are entitled to initi- the criminal procedure. After it has been checked whether ate a mediation procedure, but the prosecutor also has the the statutory conditions are met, and after a possible personal right to initiate it ex officio and to request the offender’s and hearing of the parties where they give their consent, the pros- the victim’s consent. ecutor or the court makes a referral decision and suspends If no referral was made for mediation in the prosecution the criminal procedure for a maximum period of 6 months. phase of the procedure, the court may decide to refer the The mediator contacts the parties following receipt of the case for mediation. More than 85% of mediation cases are decision on referral for mediation and summons them to the referred to mediation by prosecutors; therefore the method mediation session within a period of 15 days. The meeting, has definitely becomea measure of diversion. When referring which usually takes about 2-3 hours, provides the parties with a case, the prosecutor or the judge must check whether: an opportunity to explain what effect the crime has had on • the offender has pleaded guilty during the investigation, them, the offenders may express that they take responsibility • the offender agrees to and is able to make amends or and apologise to the victim. Parties are also provided with compensate the victim for the consequences caused by an opportunity to come to an agreement on compensation the crime, for the damage or any other kind of restitution. If the parties • both the suspect and the victim have given their consent reach consensus on the content of the agreement, the media- to the referral to mediation; and tor puts this in writing, which is signed by each party. • it is possible to order mediation on the basis of the nature The next phase is the performance of the agreement. The me- of the crime, the method of committing the crime and the diator monitors the performance of the agreement and sends character of the offender. a report to the prosecutor or the court confirming whether This last point demonstrates that the prosecutor and the or not the requirements of the agreement have been met. If judge have significant discretion in deciding whether or not to the agreement is performed satisfactorily, the court or the refer a case to mediation. It can be noted that aspects taken prosecutor applies the new rules on “active repentance” as into consideration by the prosecutor are mostly connected defined in Section 36 of the Criminal Code. to the crime or the offender. This is a weakness of the Hun- 2.3. The effect of a successful mediation procedure on garian legislation in that the victim’s needs are not prioritized. the criminal procedure In Hungary, there are no cases where it is mandatory to apply Mediation efforts are not considered successful when the VOM by law and there is no possibility for mediation in the agreement is reached; the mediation is a success - from the post-sentence period1. legal point of view2 - when the agreement is fulfilled. There 2. Characteristics of VOM are a number of different legal consequences for a successful 2.1. The mediators: organisation, training mediation for adult and juvenile offenders and depending on Since 1 January 2007, mediation procedures in criminal cases the severity of the crime. According to the Criminal Code’s have been carried out by probation officers working within rules on active repentance, if an offender restores the harm the jurisdiction of the referring agency (prosecutor/court). caused to the victim and the crime is punishable by a maxi- 2 mum of 3 years or imprisonment, the offender will no longer methods and the court has more alternative sanctions avail- be criminally liable and the criminal proceedings are termi- able for juveniles than for adults.
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