European Best Practices

of Restorative Justice in
the Criminal Procedure

2010 agreement

mediation
mediáció - mediation

reparation

reintegration
 European Best Practices of Restorative
Justice in the Criminal Procedure
Conference Publication
2010

+++++++++++++++++++
 hese days, seeing and experiencing problems
everywhere, almost no one is satisfied with the
operation of criminal justice. Most researchers, politicians
and public opinion makers agree that the institutions which
have been established for treating conflicts are exceedingly
far removed from the context in which conflicts themselves
appear. The state monopoly over criminal justice is not an
end in itself but rather a guarantee for those affected by
the conflict, and through them, for the whole political and
social community, for getting fair justice.
I agree with the criminal lawyer Katalin Ligeti that criminal law
and its institutions should not operate for the accomplishment of
a „higher justice quality” but rather, for an actual objective. These
institutions should aim at ensuring security and peace among people
or restoring it when necessary. Therefore, she believes that the
function of criminal law is not merely the achievement of “justice”. In
order to restore social peace, criminal law must above all reinforce
the rights of freedom violated by a criminal offence. However, Ligeti
thinks that compensation should also be provided for victims who
have been violated in their rights. Criminal justice should serve justice
Prof. Dr. Katalin Gönczöl for those involved in the conflict, whether the offenders or the victims,
ELTE University (Hungary) so that the norm itself and its moral contents are strengthened.
Furthermore, it should, at the same time, within the framework of
the rule of law, fulfil its preventive objectives, or at least to contribute
to the prevention of the emergence of similar conflicts and the
possibility of becoming a repeat offender or victim.
I believe that these objectives should be fulfilled by accomplishing

FOREWORD the aims set out in the philosophy of restorative justice. This is a
topic that has been debated by many in the Hungarian literature

Trust and Criminal over the past few years. Several years ago I myself found the role
of conflict resolution in emotionally tense situations viable only

Policy of the through punishments enforceable in the community and only

analysed its significance in this context. However, since then I have

Rule of Law realised that the philosophy of restorative justice is a suitable guide
to criminal policy reform and as a mechanism to achieve a change
in attitudes within the framework of the existing legal institutions
while sustaining those at the same time. Namely, restorative
justice creates a closer link in the frame of the criminal procedure
between attitudes based on ethical or rule of law considerations
of punishment. It aims at repairing the relationship between the
offender and the victim involving the community. It strives further to
reduce the harm caused to the victim and to the injured community
as well as at resolving the conflict manifested in the criminal
offence. In this way, the penalty is given a new meaning, and the
extent of the element of unnecessary and unreasoned punitivity is
reduced. At the same time, the awareness of the rational behind
the sanction increases simultaneously for the offender, the victim
and the community concerned. In contrast to the above, it does not
endanger the values of classical criminal justice nor the guarantee
system of it.

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 According to a document of the UN Economic and Social Council The institution in charge of restorative process and the law enforcement agency must be informed
(hereinafter ECOSOC) adopted in 2002, restorative justice is an without delay in the event that a given agreement arrived at through restorative process fails to be
institutional reaction developed to criminal activities which, in implemented. However, the lack of agreement or the failure to reach an agreement should not be used
addition to respecting the dignity and equality of each person as justification for a more severe sentence in subsequent criminal proceedings. Restorative justice
builds understanding and promotes social harmony. It allows all programmes may be used at any stage of the criminal justice system. For example it may be ordered
those affected by the crime to express their emotions, experiences, by the prosecutor’s office, the court or the judge who is imposing parole.
objectives and their needs. Restorative justice is capable of restoring The ECOSOC document referred to above summarises the philosophy of restorative justice, defines
the emotional and financial losses of the victims as well as restoring the principles applied when methods other than the traditional criminal proceedings are applied and
their sense of security. Furthermore, the offenders are able to presents those forms which are essential for the implementation of this approach, namely those which
directly face the consequences of their offence, as they are given can be applied by law enforcement agencies in any phase of the proceeding and, theoretically, to every
the opportunity to consider their responsibility. Thus, accountability offence. Furthermore, a court should take into consideration a covenant, promise, or agreement reached
becomes interpretable for the offender and the punishment becomes and fulfilled in a successful restorative proceeding since the realisation of the objective of a sanction
a rational fact. At the same time, the affected community understands becomes more realistic by applying the outcome of the restorative processes.
the causes and consequences of the offence committed (Hudson 2006). However, no crime should remain unpunished. The restorative process will not replace the punitive power
These types of criminal proceedings and punishments imposed of the state; instead it augments it with new approaches. The expression of the society’s disapproval against
in this way can also serve to console the members of the affected offenders of a minor offence may not be neglected even when the restorative process was successful and
community, particularly in cases when the offence directly damage the agreement was complied with. Without this, responsibility for the criminal act is drained of meaning, or
community interests. (This could, for example, be group vandalism risks becoming intermingled with the compensatory damages awarded in civil law. Criminal justice must
affecting public order or criminal acts damaging the environment.) give strong and clear messages concerning its condemnation of the behavioural norms that it penalises
Under constant professional supervision, both the victim and the and that it considers them such negative manifestations, which cannot be permitted to remain without
offender, and when necessary any other person or community consequences. No one can be forced to feel regret, guilt or to make restitution; however, when one shows
representative who was affected by and concerned with the offence, a willingness to do so, the system should honour it. All offenders, however, require the experience of
participate in the restorative process. The participants, with the “penitential burden” in order to allow them to regain their full-fledged membership within the community
help of a specially trained expert, jointly seek a solution for every or society. The path begins with punishment and the remorse accompanying it, through the use of social
problem that has arisen as a result of the crime. Examples of assistance provided for integration, to “forgiveness” (Duff 2001).
restorative processes may be mediation or a conference aiming For example, it would contradict the principles of both criminal law and restorative justice if criminal
at reconciliation or the determination of the method and extent proceedings were to conclude with wealthy perpetrators paying compensation to the victims, who as a
of the punishment to be applied. In the restorative process, the result of the offence found themselves in a vulnerable position. The principle of equal treatment would
equality of the parties should be ensured and attention should be compromised when offenders unable to provide financial compensation due to their social status
be paid to the potential variation in their abilities, which can be a would be excluded from restorative processes for this reason. Everybody has to face the consequences
reflection of their respective cultural and social status. Over the of his/her offence. Nevertheless, apart from the financial compensation other reparation methods
course of the process, the manner of reparation and restitution can may be applied for the compensation of victims and the community concerned, e.g., service in kind or
be determined; for instance a punishment could be formulated by making an apology. Yet even when the objective of the restorative process is simplified to the level of
defining a given service which must be rendered to the community, financial reparation of injuries, it might appear as if restorative justice is only an alternative to traditional
provided that it is fair and proportionate to individual and community criminal proceedings, only or mainly deemed expensive, by sparing litigation. This might occur without
needs. Furthermore, the respective liabilities of the participants any cock-eyed practices on the part of politicians or by law enforcement authorities. Nowadays, the
may be clarified in order to serve the integration of both the victim recognition and potential compensation of the injury caused by the criminal act counts as a significant
and the offender. accomplishment in and of itself for the victims. Victims are in a vulnerable position within current
The restorative process, which always concludes as a traditional criminal justice. Their situation in the proceedings is traditionally unfavourable and they often find
criminal proceeding, can only be applied when both the victim and themselves in humiliating situations before the authorities. Considering the bureaucratised nature of
the offender have given their consent to its use. This consent may be the system and the length of criminal proceedings, the victims can hardly expect meaningful reparation
withdrawn by the parties concerned at any time during the course of for their injury. The prevailing attitude is today that criminal law and the punitive claims of the state
the restorative process. The agreement and the settlement should should be governed by approaches of a higher order than the interests of the person concerned. The
be voluntary and a confession made in the course of the restorative opportunities provided by the restorative will be exhausted when it performs its functions in full based on
process may not be used as evidence against the offender in any the principles of necessity and proportionality with regard to the injured parties (victims), the offender,
traditional criminal proceedings. If the restorative process had no and the affected community. Criminal policy practice, which has developed on the basis of a narrow
result the traditional criminal process has to be resumed on the interpretation, according to the examples listed above, may even result in violation of human rights.
spot. However the criminal institutions have to enforce the most Restorative justice is not an alternative to traditional criminal justice as stated by Norwegian criminologist
important values of restorative justice against the offender, the Nils Christie. It does not treat conflicts which, through its monopoly over justice, were “stolen” by the state
victim and the community concerned. from the parties concerned and which should be returned by it to its rightful owners in order to restore

4 ////////////////////////////////// +++++++++++++++++++ 5
social tranquillity. When the institution of restorative proceedings is applied against the offenders, it still to understand and deal with the crime. Should this be the case, it may make the victims more open to
amounts to the enforcement of the state’s punitive claim. According to the interpretation of Péter Bárándy, coming to an agreement, and to accepting compensation. A further benefit of the process is that the
a restorative proceeding is none other than “a proceeding led by a mediator and temporarily forming a victims have a chance to feel the heightened solidarity and empathy of the community which directly
part of the criminal proceedings under the voluntary commitment of parties who are polarised against supports them and there is a high chance of learning about the institutions ready to support them in
each other in the criminal proceedings (the victim and the offender). The result of this is then taken into dealing with the consequences of the offence. The victims may also have the opportunity to influence
consideration as a basic point of view by the criminal authorities when the process is returned back into the method and the extent of compensation.
the basic proceedings in the course of determining guilt or levying the sentence” (Bárándy 2007). The agreement reached in the restorative process offers new opportunities in selecting the sanction to
The philosophy and the procedural forms of restorative justice have not been monopolised by criminal be applied by the court. For example, criminal punishments for environmental offences may be presented
justice. A large amount of practical experience has been accumulated documenting the fact that in a new light. The representative of the community affected might make the agreement subject to the
numerous conflicts in human relationships not terminating in criminal acts can be treated well via full re-cultivation of the damaged soil and may request offenders polluting the air to plant trees and
proceedings developed in this spirit. Restorative philosophy and processes are successfully applied, forests at the location in question. As for those causing damage to mass transport vehicles and public
for example, in schools and with other similar age groups for the peaceful resolution of conflicts within areas, an expert representative of the affected community may, in the course of negotiations aimed at
the neighbourhood or in the local community and also for the relaxation of tensions between minority reaching an agreement, provide quite accurate specifications as to the tasks or services in kind required
and majority cultures (Herczog 2003). for and proportionate with the restoration of the damages caused. Acts of vandalisation committed by
Some experts have high hopes for utilising the restorative philosophy and the process developed football hooligans may be understood from a new perspective in the restorative process if the manner of
thereunder in solving some international conflicts as well. The widespread and efficient application compensation and conciliation were to be established with the participation of the representative of the
of these processes may result in such a positive turn of events, where one can contemplate the sports club concerned. Such a representative could convey experiences for the affected community as
decriminalisation of offences that are less perilous. well as the experience gained by the club in the restorative process so that they can also make gains in the
The supporters of restorative justice do not wish to “defeat” traditional criminal proceedings; they struggle to prevent the occurrence of similar acts. An agreement could potentially be reached between
do not even wish to force it behind the scenes. Rather, they are thinking about a shift in perspective, the representative of forest owners and “wood thieves” who damaging the forest: the offenders may
of the reforming of criminal policy within its existing system of guarantees, while at the same time undertake to look after the forest under professional supervision and the forest owners may provide an
sustaining it (Christie 2004). opportunity for those in need to regularly collect forest brushwood “as long as their trust is not violated.”
The objective of all restorative processes is an attempt to come to an agreement. Agreements are possible In fact the prosecutor or the court can only approve an agreement when they have received the
only when the opposing parties listen to each other’s arguments and then, in the light of these arguments, documents related to the restorative process (i.e. when the documents are returned to them). Based on
look for a common solution. Consequently, we are talking about a compromise developed via the participation these and other documents, the court can establish criminal liability, express the disapproval of society,
of parties with opposing interests who are ready to cooperate with each other. The parties volunteer for the impose the sentence and, in this context, even elect to engage in unlimited mitigation.
restorative process based on their own interests or beliefs, knowing fully well what those are. The content of the agreement in the restorative process, as well as the facts and arguments that are
During the course of the process the offenders may present not just their defence, but other arguments essential for its interpretation, may be utilised when establishing guilt and imposing the sentence, in
as well. These can include arguments that led to the conflict and contributed to its morally wrong solution accordance with the rules of the prohibition of aggravating sanctions. The court may oblige the defendant
as well as those which may serve the objectives of a successful agreement. Consequently, within the to comply with the agreement and may – beside imposing probation supervision – order corresponding
framework of the process, which include the account of the victims and other parties involved, the causes individual behaviour rules.
of their own actions may become clear to the offenders. The offenders have a chance to learn of, and/or However, the restorative attitude should not stop at the prison gate. For those convicts who are willing
face the consequences of their actions. For instance, an offender who committed a robbery may experience to participate in the restorative process, meaning the opportunity to face the consequences of their
how as a result of their violent act they deprived the victim of an entire month’s worth of livelihood, and that actions, should be made available in prison as well. However, in such a case it is not with the actual
as a consequence of this they may have to go to prison. It is not at all certain that such new prespectives victim but rather with the representatives of the wider community that the offender may attempt to
will either shock the offenders or compel them to change their former lifestyle or at least invoke in them a reach an agreement or settlement. A successful attempt may be rewarded in the parole-procedure, in
sense of regret for their act, but the chances of this occurring are better this way than if they had not gone agreement with the offender further obligations could be imposed on him for the period of probation on
through this process at all. And when a positive change does occur, the offenders may get reinforcement parole. This programme is now operational in all the prisons of Belgium and the results are promising.
of their preconceived ideas from their immediate community – which is potentially participating in the As it is evident from the previous arguments, restorative justice can be interpreted in a number of ways
proceeding as well – i.e. their families, teachers, etc. It is also possible that they will have opportunities to and the opportunities given by it are even more numerous. There are ample solutions, deriving from the
utilise external professional help, e.g., treatment, healing, professional training or a job. The participation perspective called “umbrella philosophy” by many, that may be tapped which would be capable of reducing
of the offender could be motivated most of all by the fact that the public prosecutor or the court of justice the serious deficit of criminal justice which is predominant today. This would grant an opportunity for
judges the agreement in favour of him when deciding about guilt or punishment. To put it more simply politicians and a challenge for those shaping and implementing criminal policy. Restorative justice may
the offender gets a shorter prison term or escapes incarceration. be the guiding principle of a new strategy in creating public safety that is based on public trust. Some
The injured party (victim) and the community concerned may have interest in the agreement because people fear that such an attitude would harm the guarantee system of traditional criminal justice. In my
they may hope that the related process contributes to the remedy of their emotional and financial losses, opinion, it is not about the weakening but rather the strengthening of the existing system. It may increase
or that their fears may be calmed and their sense of security increased. The emotional tension of the social support for criminal policy and, in the long term, confidence in the justice system may be restored.
victims can also be reduced since they may have the opportunity to hear the explanation of the other
party, the perpetrator, in the course of the proceeding, and thus may perhaps be able to perceive the
subjective reasons which motivated the commission of the crime. This, in turn, can make it possible

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References

• Aertsen, I. (2006) The Intermediate Position of Restorative Justice: The case of Belgium. In: I. Aertsen, T. Deams and
L. Robert (eds.) Institutionalising Restorative Justice. Cullompton (UK): Willan Publishing
Table of Contents
• Barabás, T. (2004) Börtön helyett egyezség? (Settlement instead of Prison?) Budapest: KJK Foreword
• Bárándy, P. (2007) A közvetítői eljárás büntető ügyekben. (The Mediation Proceeding in Criminal Cases) (under publication) Katalin Gönczöl
• Christie, N. (1977) Conflicts as property. British Journal of Criminology, vol. 17, no. 1: 1–11. Trust and Criminal Policy of the Rule of Law 2
• Christie, N. (2004) Peace or Punishment. In: G. Gillian and J. Pratt (eds.) Crime, Truth and Justice. Cullompton (UK): References 8
Willan Publishing
• Duff, R. A. (2001) Punishment, Communication and Community. Oxford: Oxford University Press: 109–112. Table of Contents 9
• Gönczöl, K. (2005) A szolgáltatott igazság. (Justice Serviced) Élet és Irodalom, vol. XLIX, no. 40
• Görgényi, I. (2006) Kárjóvátétel a büntetőjogban, mediáció a büntetőügyekben. (Compensatory Damages in Criminal Executive Summary 20
Law Mediation in Criminal Cases) Budapest: HVG Orac
• Herczog, M. (ed.) (2003) Megbékélés és jóvátétel. (Conciliation and Compensation) Budapest: CSAGYI Books I. General introduction to Restorative Justice 20
• Hudson, B. (2006) Balancing the ethical and political: normative reflection on the institutionalization of restorative II. Restorative practices in crime prevention
justice. In: I. Aertsen, T. Deams and L. Robert (eds.) Institutionalizing Restorative Justice. Cullompton (UK): Willan (outside the criminal justice system) 21
Publishing: 273. II.1 Resolving family conflicts 21
• Johnstone, G. (2002) Restorative Justice. Cullompton (UK): Willan Publishing II.2 Resolving school conflicts 21
• Johnstone, G. and D. W. Van Ness (eds.) (2007) Handbook of Restorative Justice. Cullompton (UK): Willan Publishing II.3 Resolving community conflicts 22
• Kerezsi, K. (2006) Kontroll vagy támogatás: az alternatív szankciók dilemmája. (Control or Support: the Dilemma of III. Restorative practices in the criminal procedure
Alternative Sanctions) Budapest: Complex: 162 during the pre-trial stage and the court procedure 22
• Kiss, A. (2006) A közvetítői eljárásról. (Of the Mediation Proceeding) Kriminológiai Tanulmányok, vol. 43: 261. III.1 Restorative practices in cases of juvenile offenders 23
• Ligeti, K. (2005) A humánus büntetés. (The Humane Punishment) Élet és Irodalom, vol. XLIX, no. 44 III.2 Restorative practices in specific types of crimes 23
• Nagy, F. (1993) Jóvátétel mint a konfliktusfeloldó büntető igazságszolgáltatás egyik formája. (Restitution as a Form of III.3 VOM in practice 24
Conflict Resolving in Criminal Justice) Kriminológiai Közlemények 48 IV. Restorative practices implemented during
• UN Office on Drugs and Crime (2006) Handbook on Restorative Justice programmes. UN Criminal Justice Series. New the enforcement of sentences 25
York: E-Book: 6, 103. IV.1 Restorative practices oriented on victim–offender relationship 25
• Vígh, J. (1998) A kárhelyreállító (restorativ) igazságszolgáltatás. (Restorative Justice) Magyar Jog 6 IV.2 Restorative practices oriented on
• Vígh, J. (2003) A kárhelyreállító igazságszolgáltatás eszközei a hazai büntető igazságszolgáltatás rendszerében. (The offender–community relationship 25
Tools of Restorative Justice within the System of Criminal Justice) Jogelméleti Szemle 2 IV.3 Restorative practices oriented on the reintegration of offenders 26
• Walgrave, L. (2008) Restorative Justice, Self-interest and Responsible Citizenship. Cullompton (UK): Willan Publishing V. General perspective 27

Documents 1. General introduction

to Restorative Justice
• Council of Europe, Committee of Ministers, Recommendation no. R(99)19 (15 September 1999) concerning mediation
Lode Walgrave
1.1
in penal matters
• United Nations − Economic and Social Council, Resolution no. 2002/12 (24 July 2002) Basic principles on the use of Restorative Justice Potentials
restorative justice programmes in criminal matters ([Link]/ecosoc/docs/2002/Resolution%[Link]) and Key Questions 29
1.1.1 Introduction 29
1.1.2 What is restorative justice? 30
[Link] A definition
[Link] Comments
An outcome-based definition
A different, harm-focused paradigm
Restoration
Doing justice
1.1.3 Restorative justice and criminal punishment 32
[Link] Confusion
Intentional infliction of pain versus
awareness of painfulness

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 Punishment as an instrument,
restoration as a goal 2. Restorative practices in crime prevention
Can punishment have a reparative effect? (outside the criminal justice system)
[Link] Ethical problems with the punitive apriorism
Retributivism John Blad and Jan van Lieshout
[Link] Restorative justice as inversed 2.1 Families Solving their Problems – Family Group
constructive retributivism Conferencing on Family Problems
Condemning the transgression of norms in the Netherlands 59
Responsibility 2.1.1 Introduction 59
Balance 2.1.2 Increase in the use of family conferencing 60
1.1.4 Why restorative justice? 37 2.1.3 Four strategies for introducing Eigen Kracht 61
[Link] The socio-ethical theory of restorative justice 2.1.4 What happened in 2008? 62
Common self-interest 2.1.5 A conference activates 63
Responding to sceptics 2.1.6 Outcome and follow-up 64
Restorative Justice as part of an ethical movement 2.1.7 Looking back on the conference 65
[Link] Empirical data on restorative justice practice 2.1.8 Trends 66
Victims
Offenders Aarne Kinnunen
Re-offending 2.2 Resolving Conflicts in Schools in Finland 67
Public security 2.2.1 Conflicts in Finnish schools 67
1.1.5 The question of legal safeguards 40 2.2.2 The concept of restorative justice and mediation 69
1.1.6 Conclusion 42 2.2.3 Peer mediation 70
References 43 2.2.4 Does peer mediation reduce violence? 70
References 71
Borbála Fellegi
1.2 The Restorative Approach in Practice: Linda Marklund
Models in Europe and in Hungary 46 2.3 Resolving School Conflicts
1.2.1 Principles and theories 47 through Peer Mediation in Sweden 72
1.2.2 Models built on the restorative approach 49 2.3.1 Introduction 73
[Link] Victim offender mediation 2.3.2 The Peer Mediation Project in Norrbotten 73
[Link] The “conferencing” model 2.3.3 Training 76
[Link] The “circle” model 2.3.4 Conclusions and consequences 76
[Link] Community work References 77
[Link] Community councils
[Link] Victim support programmes Doina Balahur
1.2.3 The introduction of restorative methods 2.4 Restorative Justice and Re-integrative
in Europe and in Hungary 51 Self-esteem: Romanian Good Practice 78
[Link] The European systems 2.4.1 Developments in restorative justice in Romania 78
[Link] The development of the Hungarian 2.4.2 The legislative framework for the implementation of
legislative background alternative justice programmes in Romania 79
1.2.4 Theory and practice: the relationship between 2.4.3 Re-integrative self-esteem: theoretical background 81
legislation and legal practice 53 [Link] Restorative justice and re-integrative mechanisms
1.2.5 Final thoughts 55 [Link] Brief description of the research
References 56 The operational objectives of the research
A concrete example
Research strategy and research plan
Evaluation and outcomes
2.4.4 Conclusions 85
References 86

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 Borbála Ivány 3. Restorative practices in the criminal procedure
2.5 Resolving School Conflicts: during the pre-trial stage and the court procedure
“Safe School” Initiatives in Hungary 87
2.5.1 Introduction 87 Karin Bruckmüller and Christoph Koss
2.5.2 The emergence of violence in Hungarian schools 88 3.1 Diversion for Promoting Compensation to
2.5.3 Proposed solutions 89 Victims and Communities during the
[Link] Government reactions Pre-trial Proceedings in Austria 109
The measures of the Ministry of Education 3.1.1 Promoting compensation – an issue in
The measures of the Ministry Austrian criminal law since 1787 109
of Justice and Law Enforcement 3.1.2 A broad range of provisions to promote compensation 109
[Link] An initiative of a local government 3.1.3 Diversion as the main element of
[Link] An alternative provided by an educational institution restorative justice and compensation 110
[Link] The NGO know-how supported by the [Link] The development of diversion in Austria
Ministry of Justice and Law Enforcement [Link] The legal conditions for diversion
The dissemination of restorative methods [Link] Victim offender mediation
Peer help for the prevention of violence [Link] Victim offender mediation in practice
2.5.4 Summary 95 Objectives of victim offender mediation
References 95 Organization and methods
Acceptance, success and rates of re-offending
Sándor Geskó Cooperation with other institutions
2.6 Community mediation in Hungary 96 3.1.4 Conclusions 115
2.6.1 Conflicts in micro-communities and macro-communities 96 [Link] Best practices in Austria
2.6.2 The main characteristics of conflicts 97 [Link] One example of malpractice in Austria
[Link] What is a conflict? [Link] Points of Discussion in Austria
Conflicts as problems References 117
Conflicts as signals and opportunities
[Link] The three paradigms of conflict management Wojciech Juszkiewicz
The first paradigm: conflict management 3.2 Reparation as a Mitigating Circumstance
is a conscious activity When Imposing a Sentence – Mediation in Poland 118
The second paradigm: in conflict 3.2.1 Introduction 118
management, the goal is not to decide 3.2.2 Mediation in the Polish Criminal Procedure 119
who is right and who is wrong; instead, 3.2.3 Referral of cases to mediation 120
the goal is to overcome the problem 3.2.4 Impact of mediation on the final judgment
The third paradigm: the person managing the of the criminal court 120
conflict should never take sides 3.2.5 Privately prosecutable offences 121
2.6.3 The concept and content of mediation 100 3.2.6 Offences prosecutable ex officio 121
[Link] When can mediation occur? 3.2.7 Statistics on mediation 122
[Link] The mediation procedure 3.2.8 The Polish Centre for Mediation 123
The first phase: making contact 3.2.9 Conclusions 124
The second phase: preparation
The third phase: the mediation meeting Arthur Hartmann
The fourth phase: follow-up 3.3 Legal Provisions on Restorative
Justice in Germany 125
Branka Peuraca 3.3.1 General introduction 125
2.7 Pakrac, Croatia: an Example of Innovative 3.3.2 History of restorative justice in Germany 126
Restorative Practices during an Armed Conflict 103 3.3.3 The most important legal provisions on
2.7.1 Introduction 103 restorative justice in Germany 126
2.7.2 Social Reconciliation Project Pakrac 104 References 129
2.7.3 Conclusion 107

12 ////////////////////////////////// +++++++++++++++++++ 13
 Edit Törzs Dominic Kelly
3.4 Mediation and the Mediation Procedure in 3.7 Restorative Practices and Juvenile
Hungary for Adult Offenders 130 Offenders in Ireland 161
3.4.1 Legal background 130 3.7.1 Garda Síochána Diversion Programme 161
[Link] In which criminal cases can mediation be applied? [Link] Restorative Caution
[Link] Legal background in Hungary and [Link] Restorative Conference
in the European Union [Link] Main features of the Diversion Programme
[Link] The referral of a case to mediation 3.7.2 Family Conference 163
3.4.2 The main characteristics of the mediation procedure 132 3.7.3 Conference Models 163
[Link] Mediators in criminal cases 3.7.4 Experiences 164
[Link] The steps of the mediation procedure
[Link] Additional characteristics of mediation in Hungary Andrea Matouskova
[Link] The effect of a successful mediation 3.8 Mediation as a Restorative Approach to
procedure on the criminal procedure Dealing with Juvenile Crime
3.4.3 Case numbers since the introduction of mediation in 2007 133 in the Czech Republic 165
References 135 3.8.1 Introduction 165
3.8.2 Multidisciplinary Teams 167
Effi Lambropoulou 3.8.3 Victim offender mediation 168
3.5 Alternative Dispute Resolution and Restorative 3.8.4 Settlement of harms 169
Justice Schemes for Juvenile Offenders in Greece – 3.8.5 Conclusions 170
Potential Limitations and Open Questions 136
3.5.1 Introduction 137 Antonija Žižak
3.5.2 Forms of restoration and reconciliation in Greek criminal law 139 3.9 Mediation in Cases of Juvenile Offenders in Croatia 171
[Link] Historical overview 3.9.1 Introduction 171
[Link] The present situation – Formal practices 3.9.2 Development of mediation in cases of
[Link] The present situation – Semi-formal practices juvenile offenders in Croatia 172
3.5.3 Innovations for juvenile offenders 142 3.9.3 Evaluation 175
[Link] Legal context and scope 3.9.4 Conclusion 176
[Link] Law in action – Implementation References 176
[Link] Preliminary evaluation
3.5.4 Conclusions and perspectives 147 Vasso Artinopoulou
References 148 3.10 Victim Offender Mediation in Cases of Domestic
Violence – the Greek Experience 177
Isabella Mastropasqua 3.10.1 Introduction 177
3.6 Juvenile Criminal Mediation in Italy: 3.10.2 Restorative justice in Greece: an overview 178
Current and Future Perspectives 152 3.10.3 Victim offender mediation – penal mediation in Greece 179
3.6.1 Introduction 152 [Link] VOM in general
3.6.2 The Italian model 153 [Link] VOM in Domestic Violence Law
3.6.3 The 2008 guidelines 154 The lack of a wider dialogue on
[Link] Systematization of Practices mediation and restorative justice
[Link] Mediation services Potential role diffusion when
[Link] Mediators the public prosecutor mediates
[Link] The Mediation Process The appropriateness of adopting a gender
Referral to mediation perspective when applying restorative
Preliminary phase justice practices in domestic violence cases
Meeting 3.10.4 VOM Evaluation in domestic violence cases 183
Reparation [Link] Filtering the cases of domestic violence
Conclusions and formalization of the outcome [Link] Problems in implementing VOM
[Link] Future Perspective [Link] Is evaluation and follow-up provided?
3.6.4. From guidelines to reality 159 3.10.5 Conclusion 185
References 160 References 185

14 ////////////////////////////////// +++++++++++++++++++ 15
 3.14.2 The development of victim offender mediation 213
Theo Gavrielides 3.14.3 The law regulating mediation 214
3.11 Restoring Relationships: 3.14.4 Types of crimes 214
Hate Crimes and Restorative Justice 187 3.14.5 Mediation in the future 215
3.11.1 Introduction 187 References 215
3.11.2 Deconstructing hate crime 188
[Link] Defining race hate crime 4. Restorative practices implemented
[Link] Understanding race hate crime and its causes during the enforcement of sentences
Hate crime – a different type of crime
Causes of hate crime Erzsébet Hatvani
3.11.3 Gaps and scope for further work 193 4.1 Symbolic Restitution: Community Sanctions in the
3.11.4 Playing devil’s advocate: RJ – a viable option for hate crime? 195 Practice of the Hungarian Probation Service 217
3.11.5 Restoring relationships through RJ: some success stories 197 4.1.1 Introduction 217
[Link] Case study from Israel – intercommunity relations 4.1.2 Statutory changes 218
[Link] Case study from London, England – References 224
Southwark Mediation Centre
[Link] Case study from Oregon, US – Karolien Mariën
Post 11 September hate crime 4.2 Restorative Justice in Belgian Prisons 225
[Link] Case study from Slough, England – Aik Saath 4.2.1 The Belgian prison system 225
[Link] Case study from Southwark, England – 4.2.2 The origin of restorative justice in Belgian prisons 226
Police, Partners and Community 4.2.3 Tasks and activities of the restorative justice advisers 226
Together in Southwark (PPACTS) 4.2.4 Difficulties and things to keep in mind concerning the
3.11.6 Concluding remarks and recommendations 201 implementation of restorative justice in prisons 228
Recommendation 1 – Government 4.2.5 Current developments in Belgium and future expectations 229
Recommendation 2 – Researchers
Recommendation 3 – Policymakers Bram Van Droogenbroeck
Recommendation 4 – Legislator 4.3 Victim Offender Mediation in Severe Crimes
Recommendation 5 – Funders in Belgium: “What Victims Need and
Recommendation 6 – RJ movement Offenders can Offer” 230
Recommendation 7 – Politicians 4.3.1 Situation in Belgium 231
References 203 4.3.2 The philosophy of restorative justice 231
4.3.3 Why VOM was started to be used after sentencing? 232
Arthur Hartmann 4.3.4 Mediation in practice 232
3.12 The Practice of “Täter-Opfer- [Link] Why do parties want to participate in mediation?
Ausgleich” in Germany 205 The victim’s side
3.12.1 The legal basis of restorative justice schemes in Germany 205 The offender’s side
3.12.2 The practice 205 [Link] Face-to-face meetings
3.12.3 Conlusions 207 4.3.5 Results 235
References 208
Robert Friškovec
Peter Mražek 4.4 Mediation in Prisons and Restorative Justice
3.13 Victim Offender Mediation and in the Repubic of Slovenia 236
Mediators in the Republic of Slovakia 209 4.4.1 Mediation in prisons and restorative
3.13.1 Introduction 209 justice around Europe and beyond 236
3.13.2 Mediation in Slovakia 210 4.4.2 The principles of mediation according to the
3.13.3 Future perspectives 212 Council of Europe’s Recommendation R(1999)19 236
4.4.3 Victim offender mediation in Slovenia 237
Maritha Jacobsson and Lottie Wahlin 4.4.4 Development of the practice of mediation
3.14 The development of victim in the prison system of Slovenia 237
offender mediation in Sweden 213 4.4.5 Cases suitable for mediation 238
3.14.1 Introduction 213 4.4.6 Uncertainties and dilemmas 238

16 ////////////////////////////////// +++++++++++++++++++ 17
 4.4.7 Further plans 238 [Link] Results
References 238 [Link] Experience
[Link] The project’s future
Andy Hudson
4.5 “Active Citizenship Together” – 5. General Perspective
Integrating the prison into the lives of the
local community in the United Kingdom 239 Martin Wright
4.5.1 Introduction 239 5.1 Why Restorative Justice Needs Research 265
4.5.2 Active Citizenship Together for Swale (ACT Swale) 240 5.1.1 Introduction 265
4.5.3 Island Sports College 241 5.1.2 How to reduce the crimes and other harms which
4.5.4 Conclusion 242 people inflict on each other? 265
5.1.3 How to respond when crimes are committed? 266
Melinda Gyökös 5.1.4 How well are we doing? 267
4.6 “Restorative Prison” [Link] Structure
Projects in Hungary 243 [Link] Process
4.6.1 The paradigm of restoration, crime [Link] Outcome
prevention and restorative prisons 243 [Link] Reparation
4.6.2 The general features of restorative/community prisons 244 5.1.5 Conclusions 273
[Link] Vocational training and skills improvement element References 274
[Link] Restitution service
[Link] Communication János Wagner
[Link] Partnership 5.2 The Hungarian Experience of Introducing
4.6.3 The specific characteristics of the Mediation in Criminal Procedures 276
Hungarian “restorative prison” projects 245 5.2.1 The introduction of the mediation procedure in Hungary 276
4.6.4 Conclusions 247 5.2.2 Research summarising the experience of the first year 277
References 251 5.2.3 Basic data from the first year 279
5.2.4 The attitude analysis 280
Vicki Smith [Link] The objective of criminal justice
4.7 Restorative Practice for the [Link] The tasks of criminal justice
Social Re-integration of Offenders [Link] The operation of the criminal justice system
in the United Kingdom 252 and the participants of the criminal procedure
4.7.1 Introduction 253 [Link] The practitioners’ opinion of the
4.7.2 Restorative justice and young offenders 254 mediation procedure
4.7.3 Does it work? 255 5.2.5 Some key conclusions of the research 283
[Link] Pros References 284
[Link] Cons
4.7.4 Prospects for the future 256 Subject Index 285
References 257
Methodology 290
Magdolna Fábiánné Blaha, Vidia Negrea and Edit Velez
4.8 The Use of Family Group Conferencing/
Decision-making with Prisoners in Prison
Probation and During After-care in Hungary 258
4.8.1 The possibilities of the prison probation services
in using family group conferencing 258
4.8.2 The implementation of family group conferencing/
decision-making in the project 261
[Link] Reporting and preparation
[Link] The procedure of the family group
conferencing/decision-making

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 Executive Summary

I I. General introduction to
Restorative Justice (see articles 1.1–1.2)

Restorative justice (RJ) is an option for doing justice after the In an ideal case, restorative justice is introduced through social, regulatory and institutional reforms.
occurrence of an offence that is primarily oriented towards repairing However, even if no regulatory or institutional reform is implemented in a country but the professionals
the individual, relational and social harm caused by that offence. of the related sectors use restorative practices consistently in their daily work, it can be concluded that
The fundamental difference between retributive and restorative restorative approach has started to gain ground among the social policies of that particular country.

II
justice lies in the assumptions on the aim and function of punishment,
the role of responsibility and emotions, the position of the victim and II. Restorative practices in crime prevention (outside the criminal justice system)
the way the balance upset by the offence is to be restored.
Victims who participate in restorative justice find the outcomes II.1 Resolving family conflicts (see article 2.1)
more satisfying than those participating in traditional judicial A family group conference is a method of letting the responsibility for decision making, where severe
sanctions. Among offenders, the willingness to participate in a family problems are concerned, remain with the family itself. It provides the family with an opportunity to
restorative process is also high. It is the process during the meeting use their own capabilities as well as outside resources for the family paving their way out of the conflict.
itself which makes most offenders understand what they caused, Youth care was the domain in which the first conferences took place. In the last years, the attention
and to become increasingly emotionally involved and less rationally gradually shifted towards problems of adults. The number of areas in which family group conferencing
calculating. There is a slightly lower rate to repeat offending, is used has increased.
compared to traditional criminal justice, while programmes targeting The conference model strengthens the position of a dependent client in relation to institutions, and
mostly violent and serious offenders achieved better results. empowers citizens.
Restorative justice goes far beyond criminalizable matters. It Research in the sustainability of social network shows that the network grows even more in strength
increasingly penetrates issues of discipline in schools, neighbourhood after the conference, that it builds a good report with professionals, while asking for less support.
conflicts, child welfare and protection matters, and other fields of
social life. II.2 Resolving school conflicts (see articles 2.2–2.5)
It is a uniform system that extends to various special fields and Schools should, in addition to basic educational duties, help students to build social and emotional skills
sciences and that responds to various conflicts in society in accordance within the school community so that schools can be safe and just places. Peer mediation in schools is
with a set of principles and rules and with the assistance of institutions a form of conflict resolution where the students themselves learn to handle and resolve their conflicts
and specialists. The borderlines between the subsystems are set by in a way that encourages recognition, empowerment and belief in themselves and others.
political decisions at each point in time and geographical location. The purpose of peer mediation is to create an atmosphere where conflicts are seen as a part of the
According to the restorative approach, the breaking of a rule (the crime, every day life and their resolution is seen more as a positive challenge than a difficult and unpleasant
for instance) is primarily interpreted as a conflict between the affected task. If implemented correctly, peer mediation can enhance learning and encourage young people to
persons and communities. Therefore, response to such an act should be become responsible and empathic. The ultimate mission of peer mediation is to transform schools into
made by the community of the individual and not by an external power. safer, more caring, and more effective institutions for learning.
There are three rules that apply to all types of the conflict management Promoting pro-social bonds through the development of academic, emotional, and social competences
procedures: conflict management is a conscious activity; its goal is of both bullies and of those being bullied can prevent bullying. The whole juvenile population is available
not to decide who is right and who is wrong, instead, the goal is to through schools, which makes crime prevention efforts particularly cost-effective.
overcome the problem; and the person managing the conflict should By implementing restorative approach in schools, it is essential to train all of the school staff, and not
never take sides. only the teachers. The cleaning staff, the canteen staff, the caretakers, etc. shall also be involved, since
The most common restorative methods are: the victim-offender they meet the students in different situations, and the students see them in different light than the teachers.
mediation (VOM), the “conference” model, the ”circle” model, Organising sports and creative activities, and enhancing the role of student self-governments and
community work, community councils and victim protection community forums of students are recommended as a means of preventing violent behaviour. In order to
programmes. reach long-term results, conflict prevention and violence reduction procedures must become daily practices.

20 ////////////////////////////////// +++++++++++++++++++ 21
 Schools are recommended to introduce a complex system of education and training, which helps There are member states, where there is a lack of any legislation explicitly regulating penal mediation.
children relearn social skills and to correct the behavioural patterns they took on earlier. In order However, research and pilot programmes have been running for many years. Mediation may be used
to complement each other’s activities and for a more effective cooperation, it is expedient to set up a as a method of assessing the offender’s personality in these countries. The lack of legal regulation
multidisciplinary faculty staff that includes teachers, family contact persons, programme coordinators might result in a diversity of practices at the different parts of a certain country, where heterogeneous
or facilitators trained to manage conflicts. Thus, contact with the parents can be established on a more possibilities are provided for offenders and victims.
intensive and regular basis, and school conflicts might be managed more effectively. In the majority of the member states, mediation is applicable on a voluntary basis, but there are
In the work with students, who have been removed from other schools – as “they are too much to examples of practices just the opposite (e.g. in cases of juvenile offenders). Practices obliging parties
endure for the school system” – the use of restorative approach is of utmost importance whereas the to take part in mediation process are intensely criticized and scarcely used in the practice.
restorative approach shall be the foundation of the school’s organisational culture. In many member states, it is a main point of controversy whether cases of stalking and domestic
violence are suitable for mediation. Some mediation services offer special methods of mediation in
II.3 Resolving community conflicts (see articles 2.6–2.7) these cases. Indirect mediation may play an especially significant role in sexual assault cases, where
Restorative justice can play a role in resolving conflicts that are results of coexistence of people a face-to-face meeting with the offender is not appropriate or else not accepted by the victim.
belonging to minority and majority groups of a certain society; or the change of social circumstances
due to political transition or war. III.1 Restorative practices in cases of juvenile offenders (see articles 3.5–3.9)
Decreasing “discriminatory tendencies”, mutual distrust and increasing tolerance levels in micro- and Juvenile justice is an ideal area for the implementation of restorative approach, but only in careful steps.
macro-communities’ lives is a slow process. The parties need face-to-face meetings and opportunities Failure due to high expectations without the necessary support to achieve them has an adverse effect
to communicate directly. At such occasions, tensions and scepticism can erode swiftly, sometimes even on the target group as well as on the success of the measures.
unnoticed by parties, and they can be replaced by relationships built on mutual recognition, respect, The diversion and education measures more and more often implemented in juvenile offenders’ cases
and the parties’ joint effort to solve their issues. might be considered as restorative practices.
When kept within a certain extent, a conflict can be a catalyst for solutions by signalling to the parties The practice of multidisciplinary teams helping youth offenders is getting more and more often
that there is a problem that needs to be solved, and by creating an opportunity for the parties – sometimes applied. The members of such teams can be those representing the juvenile justice system (judges,
even forcing them – to express their viewpoints and interests openly. public prosecutors, policemen, probation officers) or professionals of different (e.g. social, health and
Experiences with programmes for managing conflicts in post-war situations suggest that space and education) service providers and other agencies (social workers from the child protection system,
opportunity for a restorative approach can be found regardless of the complexity and destructiveness local government officials, crime prevention coordinators). The usual activities of these groups
of the conflict and regardless of the lack of funding and political will at local and national levels. are organizing “case conferences” as one possible way to work with juvenile offenders, monitoring
Post-war communities often face a situation where normal social interactions are scarce, which leads current practice, collecting relevant information and data on juvenile delinquency in a given location,
to continuous isolation and mistrust. By resolving conflicts emerging in such situations, the main role of negotiating conditions of cooperation among individual bodies, exchange of information on individual
restorative practices are to mend the relationships among the people and to re-establish trust and solidarity juvenile cases.
within the community, which are all indispensable conditions of a peaceful coexistence in the future. According to the experiences, attending diversion processes – by forcing young offenders to analyse
their actions and the consequences of their actions and making young people explain their actions to

III
III. Restorative practices in the criminal procedure
during the pre-trial stage and the court procedure (see articles 3.1–3.4)

Under Article 10 of the Council Framework Decision on the standing of victims in criminal proceedings
their family and apologise to the victim – is far more demanding on young offenders than traditional
court process.
In many member states, the Probation Service plays a huge role in restorative processes with juvenile
offenders by issuing pre-sentence reports, social inquiry reports, making proposal for referring cases
(2001), each member state must seek to promote mediation in criminal cases, and they must ensure to RJ processes, organising family group conferences or acting as mediators. Therefore, in many
that any agreement between the victim and the offender reached in the course of such mediation can member states there is high need for improving the training, the infrastructural support and reducing
be taken into account in criminal cases. the extreme overload of probation officers.
Agreements between parties may significantly contribute to relieving the courts’ workload. They also Offering training or educational programmes on restorative justice to judges, public prosecutors and
mean that there is no need to examine evidence in criminal proceedings. Thus they create a chance for probation officers is of utmost importance. It is highly recommended to provide bylaws, regulations
more cost-effective adjudication. But saving time and cutting costs are not the sole benefit. Agreements or directives that clarify the aims and objectives of the RJ schemes, the processes to be followed, and
do not only help the administration of justice, but the defendant also gets the possibility of having some their relationship with the formal criminal justice system.
influence over the final decision and a chance to negotiate a lower punishment. The injured person gets According to surveys, the majority of victims are satisfied with the outcomes of diversion and restorative
a chance to receive compensation. The agencies responsible for conducting criminal proceedings get measures. The re-offending rate for juvenile offenders who participated in victim offender mediation
time to concentrate on more serious or complicated cases. processes was significantly lower than by other types of sanctions for juvenile delinquents.
Among restorative practices, victim offender mediation is the one institutionalized in the criminal justice
systems of most member states. The legislation and jurisdiction concerning mediation process, its legal III.2 Restorative practices in specific types of crimes (see articles 3.10–3.11)
conditions, its compulsory or facultative character, the status of mediators, and the consequences of The possibility to carry out mediation in severe crimes, and – even if the possibility is given – the
the results of mediation process may differ in each specific member state. Legislation and jurisdiction willingness of parties to participate in mediation process may raise questions. According to experiences
concerning the types of crimes and the stages of criminal procedure where penal mediation is applicable in some member states, the bigger the impact of the crime, the higher the need for mediation is. Victims
may as well differ in specific member states. might be re-victimized if these types of crimes are excluded from the possibility of mediation.

22 ////////////////////////////////// +++++++++++++++++++ 23
 In cases of family violence the main questions are, if the „trauma of victimization” is restorable through
the offender’s forgiveness and reconciliation, and if there is any space to restore the violent relationship.
Mediation in such cases can not only be considered successful when it restitutes the relationship between
the parties, but also when it raises the victim’s awareness of his/her right to live without violence or helps
IV
IV. Restorative practices implemented during the
enforcement of sentences (see articles 4.1–4.2)

The restorative characteristics of practices implemented as a

end the relationship peacefully. sanction or beside a sanction – which can be either imprisonment
Research findings do address a number of risks of gender discrimination in restorative justice procedures. The or community sanction – not necessarily lie within the process itself
appropriateness of mediation and restorative justice in gender issues, such as family violence, has been questioned (such as voluntary participation of offenders) but their outcome
even in countries with a long tradition in restorative justice and alternative dispute resolution programmes. (e.g. restitution for the community, restoring family/community
According to the views of women’s rights organizations, the priority should (or must) lie in the protection of relationships through helping re-integration) is the reason for
human dignity, in the victim’s rights and women’s rights, as opposed to family, as a social institution. Feminists drawing these practices under the restorative concept.
seem to insist on the offender’s punishment through the criminal justice system in cases of domestic violence Recommendation R(2000)22 of the Council of Europe promotes
and sexual offences. In a well-regulated system of institutionalisation, punishment and mediation are not the implementation of the rules on community sanctions and
excluding each other in such cases, whereas beside the punishment imposed on the offender, mediation is measures, and includes guiding principles for achieving wider and
provided as a victim support service to the injured party. more effective application of community sanctions and measures.
Criminal justice practitioners and victim support workers are keen to explore the prospects of the restorative The Recommendation lists the available community sanctions and the
justice paradigm with more serious crimes such as hate crime. In the search of practices and policies that cases in which they can be applied in order to increase the number of
can bring balance to community tensions, and address integration questions and inequalities, restorative cases in which a wide range of community sanctions and measures
justice principles and practices might appear appealing. are implemented. The recommendation determines the introduction
The significance of communities as parties in hate crime, suggests that RJ might indeed be well suited of the restorative element to community sanctions as a possible way
for a holistic approach. According to RJ’s theories, the restorative norm has the philosophical potential to of progress in criminal policy. Also, the recommendation specifies
address sensitive and complex crimes such as hate crime. Undoubtedly, victims of hate crime experience a victim-offender mediation as a possible community sanction.
range of effects which can have a long-lasting or sometimes life-lasting impact. In order to make the structure and the culture within the prison
Restorative practices are founded upon the principles of inclusion, respect, mutual understanding and more restorative justice-oriented, it is highly recommended to employ
voluntary and honest dialogue. One could argue that these are core values, which, if ingrained in society, coordinators designated to inform inmates and make them open to
could render hate crime almost virtually impossible. the idea of restorative justice with the support of all the different
Concurrently with the increase of the numerous volumes of theoretical debates around RJ, fears have been groups of the prison staff.
created that they might not be in accordance – or at least at the same speed – with the practical development
of the restorative notion. More importantly, they seem to pay none, or little attention to the alarming warnings IV.1 Restorative practices oriented on victim–offender
principally coming from experienced practitioners in the field, who become increasingly concerned about a relationship (see articles 4.3–4.4)
developing gap between the well-intended normative understandings of RJ and its actual implementation. In some member states VOM can take place with the offenders
of severe crimes (crimes punishable by more than 5 years of
III.3 VOM in practice (see articles 3.12–3.14) imprisonment, most often homicide, armed robbery, sexual assault)
The last two decades witnessed the worldwide growth of restorative justice practices. From an initial during serving their term in prison. In these cases, mediation would
stage when RJ dealt with petty crimes committed by children and young people, nowadays, RJ practices be even inappropriate in the court procedure or the preceding stages.
are implemented in relation to violent crimes and even in the case of large scale violent conflicts. Mediation in prison can be useful not only in relation to the victim of
In several member states, the institutionalisation of VOM in the criminal procedure was promoted as a the crime, which is being actually sanctioned, but for different types
result of international obligations and the pressure of the civil society. It legitimated the existing informal of conflicts occurring in the prison setting. As mediation is basically
practices that were developed by non-governmental organizations. The normative acknowledgment also a means of settling conflict between equal parties, the most suitable
represents an answer to the requirements of European integration that imposed an improvement in cases are the ones including parties of the same status level, such
the quality of the justice system, especially through better case management, by reducing the number as when two prisoners are in a dispute. The mediator might as well
of files, as well as by adopting alternative conflict resolution strategies. help by facilitating a mediation process between the prison and the
Among many others, essential questions concerning the practice of VOM are: how mediators shall prisoners in cases such as strikes, especially hunger strikes.
act in relation to the parties, what it means exactly to be impartial; where do the weaknesses lie in Addressing a conflict between a prisoner and a member of the prison
mediation process and how can those be eliminated; how the victim, in the dialogue with the offender, staff is more complicated because of the differences in their statuses.
deals with his/her experiences.
It is of high importance to define the range of persons/organisations authorized to provide mediation IV.2 Restorative practices oriented on offender–
services and what kind of qualifications and skills are required of mediators. While there are uniform community relationship (see articles 4.5–4.6)
regulations concerning these issues in many member states, there is lack or a diversity of regulation Symbolic reparation – which is not the direct reparation of the
in some others (e.g. because mediation service is not defined as a task of the central administration, damage caused by individual crimes but a restitution service to the
but as a task at a regional/local level). community through unpaid work – can be combined with community

24 ////////////////////////////////// +++++++++++++++++++ 25
punishments in many ways. The most typical form is community service work, which is a sanction of with professional helpers directly. The personal meeting and the honest and open atmosphere might
reparative nature. When the offender carries out community service work, he/she typically does some build trust between the participants and contribute to establishing a long-term relationship with the
useful work that the given state or local government organ would otherwise have no funds to pay for. helpers. It is an important advantage of the method that the professional helpers have a chance to
During the implementation of this measure, special opportunities of reintegration arise, given that many share their views and expectations with the other professionals, and this also promotes cooperation
of the offenders have a low willingness to work and are not used to hard labour. Through community between professionals.

V
service work, these people can be brought back to the job market in a non-conventional manner. They
have a chance to gain employment at the institution where they worked during the period of their V. General perspective (see articles 5.1–5.2)
community service.
If community service is organised in a way that makes the enforcement of the sentence and its The basic research question is how well restorative practices are done. This includes not only the
results visible for the community, the punishment is much more capable of decreasing the general outcome but the structure and the process itself. Further questions are how well the process was
fear caused by the crime within the community and it develops trust that the reintegration objective carried out and if it involved victims, offenders and members of the community. Did the community
of the sanction will be reached. make the arrangements needed to enable the offender to make reparation? Is support available for
Symbolic restitution may also be made as part of the activities required under the behaviour rules victims whose offenders are not caught? Are we learning from what offenders and victims tell us, so
specified by the Probation Service. Alternative sanctions are much more effective and the chance for that we can reduce the societal pressures that lead to crime?
reintegration is significantly higher if the sanctions are combined with individualized behaviour rules. Crime is a social phenomenon, some people will still harm each other. The restorative movement
When managing a prison with low security levels it is especially important to create a positive proposes that we should respond with a different set of questions, based on putting right the harm and
relationship with the local community whereby the prison is integrated with the community and vice looking for ways to avoid more of it happening in the future.
versa. Active citizenship is about being involved in the community, having one’s say and taking part According to some research findings, there is a reduction in the number re-offending for those who
in decisions that affect one. took part in certain restorative practices. Most of research findings show, that a high rate of victims
It is essential to involve the governor, senior managers, the prison staff, the offenders and the local who took part in restorative practices are satisfied with the process and the outcome.
community outside. Active citizenship is, above all, about people making things happen and giving As the current practice of punishment in itself is not sufficient to reduce crime rates efficiently, the
serving prisoners a real chance to give something back to the community by way of reparation for the restorative paradigm and the retributive paradigm shall be present at the same time in the criminal
offence that they have committed. But also, as a result of this, they are able to improve the quality of life justice system. Many research and practical projects are aimed at setting up the conditions necessary
of residents in the local community and positively enhance their personal confidence and self esteem. for the optimal combination of the two paradigms.
It is quite simple to recognise that the application of restorative justice principles – with its potentially
useful objectives – is common sense. The rationale is that the offenders will not evade punishment,
but while they serve their terms, they will also carry out an activity that can be valuable for the
local community, which is also injured by the crime committed. The supply is therefore provided by
the inmates ready to show their remorse by providing services, and the demand is given with the
community’s various needs. This of course will only become a real restorative practice, if inmates
are conscious about that by delivering restitution services they actively accept responsibility for the
crime committed.

IV.3 Restorative practices oriented on the reintegration of offenders (see articles 4.7–4.8)
As a set of values, restorative justice offers great promise in regard to promoting healing and
strengthening community bonds by addressing the criminal harm done to victims and communities.
The practice of referral orders (United Kingdom) is compulsory in all cases where the juvenile is
convicted for the first time and pleads guilty. The juvenile is referred to a team helping youth offenders,
which devises a “contract” and, where the victim chooses to attend, for them to meet and talk about the
offence with the offender. One meta-analysis indicated that participation in Victim-Offender Mediation
(VOM) had lead to significant reduction in re-offending. When the youth participated in VOM did re-offend,
they often committed less serious offences.
Family group conferencing/decision making can be used to enhance reintegration potential of specific
groups of inmates (e.g. those with addiction issues, who are to be released soon). During after-care,
it is recommended to put more emphasis on family relationships and on securing family and small
community resources for reintegration purposes. The goal is to bring up the issues important to inmates
with specific needs, to raise their and their families’ awareness of these challenges and to make them
willing to change and rely on their families as the number one source of support.
At a family group conference, communication in general can be resumed between family members and
they can put in words what they need. The family members as well have an opportunity to communicate

26 ////////////////////////////////// +++++++++++++++++++ 27
1.
General introduction
to Restorative Justice Prof. Em. Dr. Lode Walgrave
Katholieke Universiteit Leuven (Belgium)
Contact +++ [Link]@[Link]

1.1
Restorative Justice
Potentials and
Key Questions

1.1.1 Introduction

All over the world, restorative justice (RJ) is steadily gaining credibility
as a powerful alternative in responding to crime. Restorative justice
now has become a broad and still “widening river” (Zehr 2002: 62)
of innovative practices, empirical research, theoretical, juridical and
ethical reflection, and is an omnipresent theme in juvenile justice
and criminal justice reforms worldwide.
Restorative practices have been inserted into most systems of
responding to crime. International organisations have established
recommendations and statements to promote restorative principles
and practices in dealing with crime.1 Restorative practices are also
being implemented to deal with conflicts and injustices in social
institutions. For instance, they are being relied on in employment
disputes, neighbourhood and school conflicts, welfare issues, and
1
E.g. United Nations Economic and Social
Council 2002; Council of Europe, Committee
even as peacemaking initiatives in response to collective politically
of Ministers 1999. inspired violence.

28 ////////////////////////////////// +++++++++++++++++++ 29
 1.1.2 What is restorative justice? and not by the mere transgression of legal order. The response
is neither to punish nor to rehabilitate the offender, but to set the
In its modern form, restorative justice reappeared in the late conditions for repairing as much as possible of the harm caused.
seventies. Its re-emergence was based on multiple roots, in which The authorities’ action to involve the offender in the response
victims’ movements, communitarianism and critical criminology to the offence remains crucial, because his involvement serves
were the three main factors (Faget 1997; Van Ness and Heetderks the goal of restoration. Influencing the offender is a secondary
Strong 2002). objective only, within the frame of the primary, restorative goal. The
Together with a multitude of other separate initiatives, they led to nature and the extent of his obligation are determined by the needs
the creation of a large field now termed “restorative justice”. It goes of reasonable reparation, and not by the principles of adequate
far beyond criminalizable matters. It increasingly penetrates issues treatment or proportionate punishment.
of discipline in schools, neighbourhood conflicts, child welfare and Promoting restorative justice as another paradigm does not mean
protection matters, and other fields of social life. that it is the only way of responding to all crimes. Priority does
Given its diverse roots and different forms, it is not surprising that not mean monopoly. What is suggested here is a shift from the
restorative justice does not appear as a clearly defined set of thoughts punitive apriorism to a restorative apriorism. The current apriorism
and practices. Adding to the confusion are other, similar movements that offences must be punished (which in reality does not always
called transformative justice, relational justice or community justice. happen), is replaced by the apriorism that harm caused by a crime
must be repaired (this can also not always be achieved in reality).
[Link] A definition
Some definitions consider the RJ concept as extending to all Restoration
deliberative ways of conflict resolution in all fields of social life; others Two ways of restoration are possible: deliberative processes with
confine RJ to dealing with criminalizable matters. Some see RJ as a view to restore and judicially imposed sanctions with the purpose
an opportunity for diversion, an additional element to the traditional to achieve (partial) reparation.
criminal justice system; maximalists see RJ as a valuable alternative Voluntary deliberative processes between the victim and the
with a potential to replace the existing criminal justice system on offender, as the main parties, are the most suitable methods.
the long term. Well-conducted restorative processes offer opportunities for a
My own view is a maximalist one, based on the view that RJ may on powerful sequence of moral and social emotions and exchanges.
the longer term completely transform the current punitive criminal It may lead to a common understanding of the harm and suffering
justice system. caused and to an agreement on how to make amends. It can also
enhance the willingness of the offender to fulfill these agreements
(Harris et al. 2004).
Restorative justice is an option for [Link] Comments Agreements aim at the (partial) reparation of the victim’s losses,
doing justice after the occurrence An outcome-based definition and at the restoration of peace and order in social life. The degree of
of an offence that is primarily Contrary to most of the other definitions (as in McCold 2004), RJ is the offender’s willingness to undertake such actions expresses his
oriented towards repairing the characterized mainly by the objective to repair the harm resulting understanding of the wrong committed and his willingness to make
individual, relational and social from the crime, and not by the process. The process is a tool only, up for it. For the victim, it brings emotional restoration, confirmation
harm caused by that offence. but a crucial one to achieve restoration. However, if a meeting of his status as a rights-bearing citizen, and possibly also partial
(Walgrave 2008: 21) based on RJ cannot be organized, then (judicial) coercion must be material redress. For the larger community, it contributes to making
considered, and the sanction must also – as much as possible – sure that the offender will respect social rules in the future. All this
serve the aim of reparation. Examples of such reparative sanctions may also facilitate the offender’s reintegration.
are material restitution or compensation for the victim, paying a Such an ideal sequence is often far from being fully achieved.
fine to a victim’s fund, or community service. But even partial results in terms of satisfaction, procedural justice
If RJ were limited to voluntary participation, it would be doomed and re-offending are generally significantly better than what the
to stay at the margins of the mainstream criminal justice system. traditional criminal justice procedures can offer.
And the latter is, with its attitude of punitive apriorism, as we shall When participatory processes cannot be achieved voluntarily,
see, highly problematic. use of coercion against the offender can be considered. If judicial
coercion against the offender is necessary, the procedures should
A different, harm-focused paradigm be oriented towards obligations or sanctions that seek reparation
Restorative justice differs from approaches of both punitive and as much as possible (Dignan 2002; Wright 1996; Bazemore and
rehabilitative justice in a fundamental way. It offers a distinctive Walgrave 1999). There is no reason to discard the priority of
“lens” (Zehr 1990). Crime is perceived through the harm it causes reparation, even if the offender is resistant. Possible sanctions

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with the purpose of reparation are for example material restitution or compensation to the victim, his reputation in his peer group, it will remain a punishment.
contribution to a victims’ fund or community service. These judicial sanctions yield a reduced reparative Conversely, even if he perceives the obligation to repair to be
outcome. However, partial reparation is better than none at all (Van Ness 2002). hard and calls it “a punishment”, it will not be a punishment if the
intention of the judge was not for the juvenile to suffer, but rather
Doing justice to request from him a reasonable reparative contribution.
The notion of justice has two meanings. However, disregarding the hardship of a reparative obligation
Moral justice is a feeling of equity, a moral balance of rights and wrongs, benefits and burdens. could lead to draconian results. If, for example, a deprived juvenile
Basically, the feeling is subjective, imbedded in a social-cultural dimension. In punitive justice, the would be obliged to pay back the full amount of the Jaguar he stole
balance is achieved by imposing proportionate suffering on the offender. In restorative justice, the and crashed, he would be condemned to a lifetime of repaying
balance is restored by taking away or compensating for suffering and harm caused by the crime. and poverty. The restoration should focus on the non-material
Victims feel that their victimisation has been taken seriously and that the compensation and support dimension of the harm, whereas the material repayment should
are reasonably in balance with their sufferings and losses. Offenders experience that their dignity has be reduced to a reasonable amount, in view of the boy’s financial,
not been unnecessarily hurt and that they are given the opportunity to make up for their mistake in a mental and social capacities and his future. The remaining material
constructive way. All participants, including the community, feel reassured that rights and freedoms damage should be repaid by the insurance or by a victims’ fund.
are taken seriously by fellow citizens and authorities. Knowing that something will hurt and taking the hardship into
Justice also means legality. Restorative justice processes and their outcomes must respect legal account is not the same as intentionally inflicting pain. In retributive
safeguards. This also applies to voluntary mediation. How to do so is a matter of debate among punishment, painfulness is the principal yardstick, and its amount
restorative justice proponents. The question is to find a balanced social and institutional context can be increased or decreased in order to achieve proportionality.
which allows maximum space for genuine deliberative processes but also offers full opportunities In restoration, a relation may be sought between the nature and
for all parties to appeal to judicial agencies if they feel they are not being respected in the process. seriousness of the harm and the restorative effort; painfulness can
Coercive procedures must observe all legal guarantees. But we shall see that, as restorative justice lead to its decrease, not to its increase.
is a different paradigm, traditional criminal justice safeguards cannot simply be copied to this new
method of doing justice. Punishment as an instrument, restoration as a goal
While the procedures and the outcomes of the traditional system of criminal justice may be legally Punishment is an instrument of enforcing the legal and political
just, they very often become alienated from subjective feelings of justice. This is one of the gravest system, in truly democratic societies as well as in most dictatorial
criticisms against this system. It is the ambition of restorative justice to make the two concepts of regimes. It is an act of power to express disapproval, and possibly
justice coincide more. to enforce compliance, but it is neutral about the value system it
enforces. Restoration, on the other hand, is not an instrument, it
1.1.3 Restorative justice and criminal punishment is an outcome. Restorative justice is characterized by the aim of
doing justice through restoration. The broad scope of harm which
For the offenders, being directly confronted with the suffering and harm caused to others and with the may be subject to reparation also indicates that in RJ, the quality
disapproval of beloved persons is a painful burden. Carrying out the agreement often requires serious of social life serves as a normative beacon. Restorative justice is
and unpleasant commitments. The obvious unpleasantness has lead several scholars to consider not morally neutral.
restorative justice as another version of punishment. They term restorative justice interventions as Traditional criminal justice conceives punishment as the a priori
“alternative punishments”, rather than “alternatives to punishment” (Duff 1992). instrument of intervention, the purpose of which is to achieve a
variety of possible goals. However, a long tradition of criminological
[Link] Confusion research shows that punishment is socially not effective.
Much depends of course on how the term punishment is understood. If every painful obligation after In contrast, restorative justice advances restoration as the
an act of wrongdoing is called a punishment (as in Daly 2002) most initiatives aiming at reparation objective, and chooses among a diversity of social and legal
may be viewed as punishments. However, such a position overlooks some critical differences between instruments.
punishment and restoration (Walgrave 2008).
Can punishment have a reparative effect?
Intentional infliction of pain versus awareness of painfulness At first sight, certainly not. The a priori nature of punishment is a
“Punishing someone consists of visiting a deprivation (hard treatment) on him, because he supposedly serious obstacle to reparation. The priority within the procedure of
has committed a wrong” (von Hirsch 1993: 9). Three elements are distinguished: hard treatment, determining a proportionate punishment often distracts attention
the intention of inflicting it, and the link with the wrong committed before. If one of these elements from the harm and suffering of the victims; the threat of punishment
is lacking, it is not a punishment. Painful obligations which do not intend to cause suffering are not makes genuine communication about harm and possible reparation
punishments. It is similar to the difference between fines and taxes. almost impossible; the penalty itself seriously restricts the
The crux lies in the intention (Wright 2003). It is the punisher who considers an action to be wrong offender’s effort to offer reparation and compensation.
and who wants the wrongdoer to suffer for it. Even if a juvenile sees the punishment as improving Some scholars advance, however, that, certainly after serious

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crimes, inflicting pain is necessary for the victim and for social peace self-evident, raising the question why the general ethical rule not to inflict pain on others does not
in general (Pemberton 2008; Van Stokkom 2007). The victim must have apply to responding to offences (Fatic 1995). Criminal theories advance a variety of arguments. They
the opportunity to express his feelings of anger and even revenge. In can be clustered as instrumentalist and retributivist arguments.
a constitutional democracy, this is possible only in a “restyled” nature According to instrumentalism, criminal law is acceptable because it serves higher social aims:
through a punishment inflicted by a public institution. Likewise, public social order and peace. This suggestion can be tested empirically. Extended research concludes
indignation needs to be expressed, which, again should be canalized that punishment is not effective for any of these goals (McGuire and Priestley 1995; Andrews and
in a correct procedure and proportionate sentences. Bonta 2003; Tonry and Farrington 1995). The idea that punishment rehabilitates or individually deters
These scholars state that research confirms these punitive needs offenders has never been confirmed empirically. There is no indication that harsher or more intensive
of the victim and the public. This is of course not surprising in a punishments lead to greater public safety and peace. On the contrary, the more public policy relies
society in which punishing offences is presented as the evident and exclusively on repression and punishment, the more this will lead to more imprisonment, more human
unique possible response to crime. It is not evident that most victims and financial costs, less ethics, less public safety and a lower quality of social life.
would maintain their choice of punishment if they were offered a This does not mean that the threat of punishment never has any effect, but it indicates that the general
realistic restorative process which would provide them with a full statement that criminal law must deter (potential) offenders is a doctrine, not an empirically justified theory.
opportunity to express their emotions and to seek constructive
solutions. A New Zealand research found that the punishment of Retributivism
the offender was only a primary wish of 4% of victims (Maxwell and The origins of retribution do not lie in theoretical assumptions. Retribution begins with emotion. Being
Morris 1996). We found only one out of 45 such victims (Vanfraechem the victim of a crime or another injustice provokes indignation, feelings of humiliation, anger, and a
2003). wish to repay the injuries suffered by inflicting pain on the person who caused them. This is revenge.
Research also shows how important the reparative dimension is However, giving way to personal feelings of revenge may get out of hand. The emotional dimension
for the public in general (Roberts and Hough 2002). Actually, this is often overrules the rational balance. If anger and indignation were not channelled, actions of revenge
surprising given that the public is constantly bombarded by the media could be catastrophic for social life. Hence, the emotions after a crime are legally “restyled” through
and the authorities with the message that punishment is a “natural” the authorities’ response to the crime.
consequence of offending and that the public is generally unfamiliar The transformation of revenge into retributivism has, however, reduced or even eliminated the
with the potentials of restorative justice. There are also historical emotional dimension. “Justice” is reduced to general concepts and procedures, equal to all citizens. It
arguments for suspecting that reparation after an offence is a more is formalised, and transforms experienced events into general terms, understandable and controllable
evident idea than the intentional infliction of pain after the offence, for all (or their lawyers). Emotions do not fit into this transformation. Moreover, the retribution theory
but that this idea is suppressed by centuries of punitive apriorism. focuses more on the public dimension of the crime. As a result, justice may be done in the eyes of the
Although further research is necessary in this topic, I think that professionals, but the direct parties are very often left frustrated, with feelings of injustice.
victims need Here is where restorative justice has its claim: it tries to address as much as possible the emotional
dimensions of crime, and to transform the emotions into constructive motivations. Keeping that process
• the public recognition that injustice has been done to them, in the frame of a constitutional democracy is one of the most difficult challenges for a maximalist
• the opportunity to fully express their emotions about this, and approach of restorative justice. But it is possible.
• prospects of reasonable emotional, relational and material
reparation.
Retributive theory is grounded in the Kantian principle that punishing wrongdoing is a categorical
imperative. Good societies must issue clear rules, enforce them and unambiguously disapprove of
law-breaking, so as to keep the norm well understood by all citizens and to reduce law-breaking in
The determination of the authorities to arrest and sentence the the future. While censuring, making clear to the population that criminal behaviour is not tolerated,
offender certainly meets the first need. But the focus on inflicting a is necessary, it does not need to be expressed through punishment.
proportionate punishment on the offender makes many victims feel Retributivism is based on a kind of intuitive reciprocity. The assumption is that the feelings of
betrayed, rather than supported and respected. The emotions are revenge are legally satisfied by imposing on the offender an amount of pain which is in balance with
mitigated to fit within the procedure, and the focus on punishment the amount of pain caused by the offence. The grievances are satisfactorily addressed if the offender
restricts real restoration. is also distressed. Others advance that the infliction of punishment erases the illegitimate benefits
Even if the public wished punishment, it would be no reason to obtained by the offender. The thief cannot be allowed to take advantage of his illegal act. We must
accept it uncritically. Public opinion is not a natural given, and it can therefore spoil his life by imposing a painful punishment on him.
be changed over time. This would indeed be desirable, because the There is, indeed, a common intuition that “the balance” should be restored. It would simply be
punitive apriorism also raises serious ethical problems. unjust if we let the offenders get away or if we left the victims alone with their losses and grievances.
“Something” must happen. We want the material, mental and social victimisation to be recognized
[Link] Ethical problems with the punitive apriorism and wiped out. An intuitive moral balance has to be taken seriously, because reciprocity is a basso
Most ethical systems consider the deliberate and coercive imposition continuo in our social life. But as imposing intentionally hard treatment on persons is an intrinsically
of suffering on another person as unethical and socially destructive. unethical act, other possibilities to restore this intuitive moral balance must be explored thoroughly.
Nevertheless, criminal punishment for offences is considered as This is exactly what restorative justice does.

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 So, we agree that criminal behaviour must be publicly censured In restorative justice, the offender’s paying-back role is reversed: he must himself pay back by repairing
in order to encourage compliance with norms and that an intuitive as much as possible the harm and suffering caused. The balance is now restored, not by doubling the
moral balance must be restored in order to preserve the quality total amount of suffering, but by taking away suffering. Retribution in its genuine meaning is achieved in
of social relations. These functions are however poorly fulfilled by a constructive way. One could also see a kind of proportionality in this reversed restorative retributivism.
the current criminal justice system. The potentials of restorative It is based not on “just deserts”, but on “just dues”. Restorative justice asks the question what kind
justice are to be further explored. of a “debt” the offender has, and what he reasonably owes to pay back for the losses he has caused.
“Because crime hurts, justice should heal” (Braithwaite 2005: 296). Restorative justice tries to
[Link] Restorative justice as inversed constructive retributivism take hurt away by inversing punitive retributivism into constructive restorative retributivism. Facing
Retribution basically consists of three elements: the unlawful the common concern of both retributive and restorative justice to rebalance the consequences of an
behaviour is condemned, the responsibility of the offender is offence helps to indicate precisely where the fundamental difference lies: it is the way the balance is
indicated, and the moral imbalance is repaired by paying back to the going to be restored. Punitive retributivism assumes that intentional infliction of pain is indispensable
offender the suffering he caused by his offence. Restorative justice for balancing wrongful behaviour and for censuring it. This is a principle that restorative justice
shares these components, but in a constructive way (Zehr 2002). cannot encompass.
This retributive dimension of restorative justice, being retrospective and seeking to balance, is the
Condemning the transgression of norms basis to constructing the safeguards of restorative justice. I shall come back to this.
Restorative justice clearly articulates the limits of social tolerance.
It intervenes because a crime has been committed, which is 1.1.4 Why restorative justice?
disapproved of. Moral emotions such as shame, guilt, remorse and
embarrassment, are inherent in restorative processes, and result Two types of arguments have been developed: social-ethical and instrumental ones.
from the disapproval expressed through the process. Restorative
justice thus provides the essential elements of censuring. [Link] The socio-ethical theory of restorative justice
But there is a difference: censure in the current criminal justice The shift from the punitive apriorism towards a restorative apriorism is based first of all on a social-
condemns the offender because he has transgressed a clause of ethical intuition (Walgrave 2008). Restorative justice recalls the fundamental raison d’être of the
criminal law. Restorative censuring is rooted in social relations. The criminal justice system. Why is it forbidden to steal and to commit private violence? Because, if it
offender’s behaviour is disapproved of because it has caused harm were not forbidden, victimisations would occur all the time, provoke counteractions to make things
to another person and to social life. Restorative censuring refers even, and lead to an escalation in mutual victimisations. Social life would be impossible, because it
to the obligation to respect the quality of social life. would be dominated by abuse of power and fear.
Therefore, if a crime does occur, what should the first reaction be from a social aspect? It is to
Responsibility repair as much as possible, and in an orderly way, of the harm done to the victimised citizen and the
As in punitive retributivism, restorative justice raises the responsibility damage to social life. Restorative justice (re)establishes the quality of social relations and of social life
of the offender. But in punitive retributivism, the offender is as the reason for criminalising certain behaviour. Its aim is to restore this quality, and not primarily
confronted by the system with his responsibility, and must submit to enforce an abstract legal rule.
to the punitive consequences imposed on him by that system. He has The quality depends on the recognition of individual rights and freedoms, and on the awareness of
no active role to play. Passive responsibility is retrospective, in that mutual dependency to achieve them. We have private lives and private needs which we want to satisfy
it is imposed because of an act committed in the past. as autonomously as possible, but we are also members of a community. Because we must unavoidably
Restorative justice invites (under pressure) the offender to take live together, we depend at least partly on each other. This is why we are entitled to demand certain
active responsibility, by participating actively in the deliberation and ethical standards to be kept by others. Our rights and freedoms allow us to make our own choices,
by making active gestures of reparation (Braithwaite and Roche but they also confront us with our social responsibilities. We can opt for purely and ruthlessly selfish
2001). If this active participation is not achieved, a sanction will be choices, or we can respect the interests of others and of social life in the choices that we make. This
imposed on the offender, requiring from him an active effort as part cannot be ruled by law, it is rather a matter of socio-ethical understanding.
of (symbolic) reparation. Active responsibility is raised because of
the act committed in the past, but it is also oriented towards an Common self-interest
action or a situation in the future. Active responsibility, therefore, Advocates of restorative justice share the opinion that constructive solutions which are accepted by
is both retrospective and prospective. the direct parties are better for the quality of social life, and that this quality is a crucial condition for
our own self-interest. I have called this our common self-interest (Walgrave 2008).
Balance The idea of a common self-interest merges in one notion the seeming contradiction we are
In punitive retributivism, the balance is restored by paying back to the living in: liberals underline that we are individuals with particular needs, wishes and ambitions,
offender the same amount of suffering he has caused. It is supposed but communitarians stress that we share our lives with others, with whom we cannot but share
that things are then evened out: both parties suffer equally. The opportunities and goods. The concept actively joins both viewpoints in orienting self-interest to a
amount of suffering is doubled, but equally spread out (Wright 1992). notion of common self-interest, which is seen in turn to serve individual self-interests.

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 To gain more autonomy, we need each other. The more smoothly mutual dependency operates, becomes aware of the benefits he gets from the reparative actions
the more space there is for each individual to enjoy liberty and live his life as he wishes. It is in my by the offender and appreciates the restorative value of a well
interest to live in peace, to be part of a community that gives me and the others maximum space, reintegrated offender; the offender realises the harm he has caused,
based on respect for plurality and solidarity. Living in such a community is the common self-interest. and understands that his social prospects will be better if he assumes
I promote such a community life, not because I am an unworldly idealist, but because I hope to get the his responsibility by making up for the harm he has caused. Both
maximum possible benefits from being part of it. But it is more than self-interest, because I am not alone recognize that they have interest in finding a constructive solution,
in trying to achieve these benefits. If we all invest in social life, we all profit from its high quality. The more so that they can live in peaceful and supportive social climate. Their
we share a commitment to the community, the greater are our personal possibilities to enjoy freedom. self-interest is integrated in common self-interest.
This does certainly not always work, but the question is how to
Responding to sceptics approach the conflict initially. Do we suffocate the potential for
Sceptics may claim that believing in common self-interest is naive. They refer to the current hardening respectful encounters beforehand through legal procedures and
of social life and human relations, the abuse of power in (international) politics, mercilessness in threats of punishment, or do we give a respectful and constructive
business, cynical exploitation of legal rights, loss of engagement in community life, and selfishness solution a chance by acting initially on the assumption that they are
in daily life. They seem to leave little hope for common self-interest. There are two answers to this. able and willing to reach a peaceful agreement? Beginning by relying
on the potentials for constructive deliberation is not naive, but rather
1. The soil for common self-interest is not completely parched. On a a well reflected ethical choice. If it appears not to work, the traditional
daily basis, we observe expressions of sympathy, compassion and coercive judicial mechanisms have to be activated. Hence, it is not
solidarity with the poor, the weak and the victims of war and natural naive to give priority to deliberative potentials; it would only be naive
catastrophes. Philosophers like Levinas (1966) advance that we to give exclusivity to them.
are inevitably confronted by our ethical responsibility in the face of
the others. The idea that our self-interest is served by investing in [Link] Empirical data on restorative justice practice
the quality of social life is also promoted by other authors of great The socio-ethical theory is not inconsistent with the empirical
authority, such as in Putnam’s concept of social capital (2000), the data available so far. The data are not always based on good
notion of dominion presented by Braithwaite and Pettit (1990), or in methodological work, but some conclusions can be drawn from
the strong democracies as conceived by Barber (2003). the several surveys currently available (Latimer et al. 2001; McCold
2003; Bonta et al. 2006; Sherman and Strang 2007).
2. Investing in common self-interest is an ethical choice, not a natural In the great majority of cases referred by the police or by
condition. Even if it is not observed sufficiently in real life, it remains the judiciary, the parties actually come to a meeting, reach an
an ethical standard, to be learned through upbringing, education, agreement, and the agreement is generally complied with.
social relations and experiences. It is to be cultivated and encouraged
in the community and in state interventions. Victims
Victims who participate in mediation or conferencing perceive a high
Restorative Justice as part of an ethical movement degree of procedural justice, appreciate the communicative value of
This socio-ethical view is a basis of a wider view on how citizens should ideally participate in social, the encounters, and find the outcomes more just than traditional
economic, welfare and cultural policies, and about how they should interact in daily life. Restorative judicial sanctions. Victims also suffer less post-traumatic stress after a
justice is part of this social movement, is largely inspired by it, and aims to contribute to its development. conference; have less fear and anger, and more sympathy for the offender.
It does so by relying mainly on deliberation among citizens who accept responsibility for their actions, Our conclusion must remain cautious, but it appears clearly that
and not primarily on coercive intervention by the state. It is trusted that, if appropriate conditions the victims who are willing to participate are not disappointed.
are created, most opponents in a conflict will meet in mutual understanding and respect, and find
a constructive solution. The philosophy of restorative justice as a whole rests upon the belief that Offenders
most humans feel a deeply rooted sense of empathy for other humans, and that they understand their Among offenders, the willingness to participate in a restorative process
common interest in living together in harmony and peace. is also high. Probably many offenders simply hope that the outcome
This is not a naive belief. Victims and offenders, also of serious offences, do actually meet and will be better that way than if they went to court. As long as it does not
come to an agreement. The majority of victims do not begin the meeting captured by anger or a need cause secondary victimisation, this is not a problem. It is the process
for revenge. What they want is the recognition that injustice has been done to them, the opportunity during the meeting itself which makes most offenders understand
to fully express their emotions, and they expect prospects of reasonable reparation. Most offenders what they caused, and to become increasingly emotionally involved
understand that they have committed an inadmissible act and that they risk a sanction for it, which and less rationally calculating.
they hope to keep as low as possible. The two most prominent protagonists begin a restorative process Offenders who participated in mediation or a conference
with the hope to getting something from it for their own sake. understand and accept the obligation to repair better than in a
During the process, both gradually begin to understand that there is more to it than that. The victim traditional juridical sanction.

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 Re-offending the essentials of crime differently, aims at different goals, involves
The results of studies of re-offending do not lead to triumphant other key actors, uses dissimilar means, and operates in a different
conclusions. Bonta et al. (2006) found an overall 7% lower rate of social and juridical context. It is not possible to judge different
repeat offending, compared with traditional criminal justice. Better paradigms with the same criteria, just as it is not possible to play
results were achieved in programmes targeting mostly violent basketball with the rules of football.
and serious offenders. This is paradoxical because conferences Law and legal rules are not inviolable rulers of society; they are
are applied mostly to divert less severe youth offences from court. servants to the quality of social life. Instead of trying to submit
Also the quality of the conference matters (Maxwell et al. 2004; restorative justice to traditional criminal justice principles, the legal
Hayes and Daly 2003). criteria need to be revised and reformulated in line with the philosophy
If the conference is followed by systematic support or treatment of restorative justice. The traditional principles are constructed to
for the offender, the risk of re-offending is much lower. It may be preserve two fundamental values: the equivalence of all citizens and
naive to expect that a conference of a few hours could on its own the protection of the citizens against abuse of power by other citizens
change a life course that has sometimes gone wrong from birth. and by the state. These values must also be preserved in restorative
But the meeting is an excellent opportunity to begin treatment and justice, but the legal principles must be adapted.
other social support. I described restorative justice as inversed constructive
All in all, restorative justice interventions are not a magic potion retributivism. Both the systems of punitive criminal justice and
to eliminate re-offending. But having an impact on the offender is restorative justice clearly condemn the (harmful) transgression of
not the primary aim of restorative justice programmes. The primary norms, hold the offender responsible for his behaviour, and seek
aim is to repair the harm caused by the offence. All in all, the to restore a kind of balance. Moreover, where necessary, both use
overall results are encouraging. The participation rate is higher than coercion according to legal standards.
sceptics would expect; victims and offenders report that they are The challenge to the traditional legal framework comes from
better off after such a process; and re-offending is not worse. And the key difference: the punitive apriorism vs. the aim to restore.
this is what matters in the coherent approach of restorative justice. To attain the restorative goal, ample space must be allowed for
informal deliberations including all parties, which is contrary to
Public security the strict formalisation in the hands of professionals in the penal
The most systematic implementation of restorative justice schemes system. It is a difficult challenge, but by no means impossible.
is in New Zealand where, since 1989, family group conferencing As restorative justice is a relatively new paradigm, thoughts
for all serious youth offences is a mainstream response under the about legalisation are only just starting to be made (Van Ness
Children, Young Persons and their Families’ Act. The statistics on 1999; Braithwaite 2002; von Hirsch et al. 2003; Walgrave 2002).
youth offending have shown a spectacular decrease since then Many examples exist of how restorative processes are currently
(Maxwell et al. 2004). There is a drastic fall in the number of arrests, implemented and positioned in relation to mainstream criminal
a halving in the number of young offenders in court and a reduction justice systems. From a maximalist standpoint, these are
of the number of confined juveniles to a quarter of the number transitional stages only, but they indicate the need for theoretical
locked up in 1989. I believe such developments to be beneficial for juridical work on establishing the principles of restorative justice.
public safety. Let me give a few examples.
There is so far no reason to believe that more systematic The equality of all citizens before the law is a crucial value in
implementation of restorative responses to crime would be democracies, but it is poorly preserved in practice. The equality
detrimental to safety and feelings of safety. There is no empirical of citizens is unrealistic in a society where inequality is endemic,
indication that the restorative justice approach would be hindered and this is also true in legal processing and sentencing. If an
by the so-called general punitiveness of the public. While simplistic illiterate person is subject to the same complicated judicial rules
repressive outcries may sound the loudest in the media, it is far as a defendant with a degree in law, if the rich pay exactly the
from evident that they are the mainstream. same fine as the poor, this kind of equality is “a travesty of equal
justice”. The rules of the current judicial system do not guarantee
1.1.5 The question of legal safeguards more equivalence than the informal restorative justice processes.
On the contrary, the equality of citizens may be better achieved if
Rejecting the punitive apriorism does not mean rejecting a legal the protagonists were stripped of their power and status, and met
frame for restorative justice. One can, however, not simply transfer each other in a personal face-to-face dialogue, as proposed in a
the principles guiding the punitive criminal justice system to a restorative encounter.
restorative justice system. Restorative justice is based on a different Proportionality in criminal justice is much less evident a concept
paradigm, inspired by a clearly distinct philosophy; it conceptualises than is suggested in criminal theories. There is no natural link

40 ////////////////////////////////// +++++++++++++++++++ 41
 between, for example, embezzling a million Euros and spending two
years in prison, committing a street robbery with physical violence
• the chance it offers for citizens to experience the
power of respectful dialogue and the benefits of
and serving five years, or stealing a bicycle and being on probation investing in common interest;
for a year. It all amounts to social convention, which changes over
time and space. Research shows that participants in restorative
• its basic trust in the constructive potential of
people to actively take responsibility in crime and
processes spontaneously handle implicit proportionality criteria, justice matters and in other fields of social life.
and it is worth exploring whether grass-roots assessments of
what is a reasonable response, based on the main stakeholders’ References
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rights, procedural guarantees and sentencing limits. Criminal Justice. Oxford: Oxford University Press
But a lot of experience needs to be accrued, reflection and • Braithwaite, J. (1989) Crime, Shame and Reintegration. Cambridge: Cambridge
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1.1.6 Conclusion vol. 4 no. 1: 55–79.
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Its potentials are Cragg (ed.) Retributivism and its Critics. Stuttgart: Steinder: 44–68.
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• its focus on what binds us together,

rather than what divides us;
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use of coercion to the strictest minimum;
Justice Practices: a Meta Analysis. Ottawa: Department of Justice
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(Totality and infinity: an essay on exteriority) Rotterdam: Lemniscaat [Translated
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 • Maxwell, G. and A. Morris (1996) Research on family group conferences with • Wright, M. (1992) Victim offender mediation as a step towards a restorative
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Galaway (eds.) Family Group Conferences. Perspectives on Policy and Practice. on Trial. Pitfalls and Potentials of Victim offender mediation. Dordrecht/Boston:
Monsey (NY)/Annandale (NSW): Willow Tree Press/Federation Press: 88–110. Kluwer Academic Publishers: 525–539.
• Maxwell, G., V. Kingi, J. Robertson, A. Morris and C. Cunningham (2004) Achieving • Wright, M. (1996) Justice for Victims and Offenders: A Restorative Response to
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to the maximalist model. Contemporary Justice Review, vol. 3 no. 4: 357–414. (ed.) Repositioning restorative Justice. Cullompton (UK): Willan Publishing: 3–23.
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• von Hirsch, A., J. Roberts, A. Bottoms, K. Roach and M. Schiff (eds.)
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Willan Publishing

44 ////////////////////////////////// +++++++++++++++++++ 45
 1.2.1 Principles and theories

In the first half of the article it would be analysed what responses

under social policy are available in relation to the difficulties
that arise in connection with crimes and to the conflicts between
the affected persons (the victim and the offender) and their
communities. What moral, regulatory and institutional systems
and schemes are available for society to give a response to crimes?
What social and social policy-related issues arise in the lives of
the affected persons and groups as a result of the crimes? Are
we aware of the effects the responses of society and the various
institutions have on the affected victims, offenders, their families,
communities and society in general? Can the reactions persuade the
law-abiding members of society that common values and principles
are still valid? Can the reactions to crime break the vicious circle
Dr. Borbála Fellegi, PhD of violence? Or, can the reactions ensure that no one feels the urge
Foresee Research Group Nonprofit Ltd. (Hungary) to resist and strike back?
Contact +++ [Link]@[Link] In the article the sphere beyond the related fields (that is,
beyond criminal, legal and social policies) is explored as well.
This is because the function of responding does not belong to one
particular field (see Figure 1). I am proposing a uniform system that
extends to various special fields and sciences and that responds to
various conflicts in society in accordance with a set of principles

1.2
and rules and with the assistance of institutions and specialists. The
borderlines between the subsystems vary in time and are depending
on the geographical location. The borderlines are set by political
decisions at each point in time and geographical location.

The Restorative
Institutions of social policy Institutions of criminal policy

Approach in Practice:
Models in Europe
and in Hungary Child and family Education Community Crime prevention The criminal Enforcement of
protection Mediation and initiatives National strategy procedure before sentences and
Family group restorative Local circle and project the prosecutor measures
conferencing, practices in models, funding and the judge Family group
victim offender schools mediation Mediation in conferencing be-
mediation criminal cases fore release and
reparations to the
community

Figure 1
The emergence of the restorative justice approach at
various levels of social institutions in Hungary
46 ////////////////////////////////// +++++++++++++++++++ 47
 It is clear that the criminal justice system is only able to give an Having collected the elements that are mentioned the most often,
answer to some of these questions. A large part of the problems I believe the procedures with the most restorative content are
may only be answered if social policy, educational policy and the those programmes in which
field of equal opportunities for disadvantaged groups are involved.
The knowledge and methods provided by the practitioners of social • the
the participants agree to participate in voluntarily;
services are also of key importance. My approach is that crime
in itself is just a symptom of an illness, and the real reasons are
• possible
participants are given comprehensive information about the
consequences of the procedure;
such micro-, meso- and macro-level factors that criminal justice • the offender will
an important goal is to prevent the victim’s re-victimisation;
cannot influence. • the procedure is take a certain level of responsibility for the crime;
It is noticeable that increased resources are available in the field
of social policy and criminal justice if the subjects of the service/
• impartial facilitator/mediator/
managed by an appropriately trained, neutral and
coordinator;
procedure cooperate voluntarily, if they can propose forms of
cooperation and if persons important to them can also be involved
• third party learns what is said duringthethe
the procedure is confidential from beginning to the end and no
procedure;
in finding a solution.
According to the philosophy of restorative procedures, the
• communities are considered equally important
the needs of the victims, the offenders and the affected community/
both from a material
making and the following of rules are built on a set of norms that and an emotional perspective;
the members of the community define. As a result, their needs and • the affected persons are involved in the procedure directly;
requirements, such as for a sense of personal security, peaceful
coexistence and a respectful conduct (which are also indispensable
• the circumstances of the case are established during the meetings,
including the reasons that led to the crime, the possible reparation,
for the community to continue to exist), are reflected in the set the methods of preventing a future conflict/re-offending and any
of rules as a whole. If members of the community break any of needs that may arise;
these rules, not only do they violate the “rulebook” but they also act
against the community. As a result, the response to a crime should
• an opportunity is given to the offender to make a voluntary offer
to restore the damage caused: the emphasis therefore is on the
be made by the community of the individual and not by an external offender taking active responsibility;
power. According to the restorative approach, the breaking of a • it is possible to involve other persons to support the parties;
rule (the crime, for instance) is primarily interpreted as a conflict
between the affected persons and communities.
• the agreement is developed by the widest possible range of persons
directly affected by the crime.
Restorative procedures are built on a similar methodology despite
the differences between the various models applied in practice.
It is emphasised in all cases that the participants must give their The criminal policy changes of postmodernism give a larger
voluntary consent to participation, and that they must be informed role to local communities and gradually reduce the tasks of the
on the possible alternatives, the potential consequences and the state. The community has an extended function in both prevention
possibility of making their own decision at any point. However, it is and sanctioning, and it has also become clear that postmodernist
an important factor when applying any of the different practices, changes in society may fundamentally reinforce the possibility
that participants (especially the victim) should be protected from of spreading the restorative approach built on the principles of
victimisation and re-victimisation. community. The traditional retributive criminal justice system
These ideas started to appear as a result of a 1977 article by a focusing on the offender and ignoring the physical and mental
Norwegian criminologist, Nils Christie. Christie’s article discusses requirements of the victims is often proven to be unsatisfactory
how the state “stole” their conflicts from the citizens and gave those and results in secondary victimisation.
to professionals (psychologists, prosecutors, judges and social The restorative approach therefore can help the persons
workers). In the criminal procedure, the damage and grievance affected by the crime to re-integrate into society. Restoration can
caused to the victim is forgotten. The victim becomes a prop in the compensate the citizens for the abnormalities of the criminal justice
procedure and may become subject to “secondary victimisation” (re- system (for instance, for the fact that personal grievances and the
victimisation). Also, the offenders are stigmatised in the procedure, victims are ignored) and may support the effective operation of the
and this makes it particularly difficult for them to reintegrate into criminal justice system as a whole.
society later. Christie thinks that these harmful effects can be
mitigated if the handling of the conflict is returned to the victim and 1.2.2 Models built on the restorative approach
the offender and if they and their communities are directly involved
in finding an appropriate answer to the crime (Christie 1977). Consequently, the restorative approach is not simply the theoretical
background of a specific practical model; instead, it is a philosophy

48 ////////////////////////////////// +++++++++++++++++++ 49
the elements of which appear in the various models, methods and practices in different combinations [Link] Community councils
and with diverse emphases. In the following part of the article the most common restorative methods In community councils, the main emphasis is put on the communities affected by the conflict and not
are discussed. on the individuals. In the procedure, the parties overcome the conflict, the events and their effect,
and agree on the restitution with the participation of the members (even groups of people) of the
[Link] Victim offender mediation affected community.
The most frequently used practice in Europe is so-called victim offender mediation. In victim offender
mediation, an independent third party called the mediator mediates between the parties, helps them [Link] Victim support programmes
talk over the circumstances and effects of the crime and accomplish an agreement on the form, These programmes can be considered restorative practices if there is a possibility of involving
amount and procedure of restitution. Mediation may be a face-to-face meeting, but it may also be the offender directly and if it is possible for the victim and the offender (and their respective
indirect. In the latter case, the mediator meets the parties separately and relays the information to communities) to communicate directly or indirectly and if a restorative approach appears indirectly
the others to help them come to an agreement. Mediation primarily focuses on the future and seeks in the implementation of the programme.
to find a solution that will work in the future. In mediation, the expression of interests is given more
emphasis than the discovery of the emotional side of the conflict. The participants of the mediation 1.2.3 The introduction of restorative methods in Europe and in Hungary
procedures are those persons that are the most directly affected by the conflict. The communities
and those supporting the parties are less frequently present at the meetings. [Link] The European systems
Based on Gavrielides’ typology (Gavrielides 2007: 31-32), there are three basic types of restorative
[Link] The “conference” model systems as implemented and used in Europe. In “dependent” (or can be called integrated) systems,
The method of conferencing involves a larger group of affected persons in the decision-making restorative practices are offered as alternatives to the criminal procedure. In these systems, it is not
process as the meeting is not only attended by those directly concerned, but also by supporting family necessary to continue the criminal procedure if an agreement is made. Therefore, the restorative
members, members of the community, reference persons (“significant others”), representatives of programme is a diversionary measure (diverts the case from court) applied in the case of minor
the authorities (police officer, probation officer etc.), professionals providing support (social workers, crimes. The mediation procedure in the majority of these systems is carried out within a centralised
NGOs’ representatives, teachers etc.) and other representatives of the affected community. and uniform system the objective of which is to guarantee equality before the law, that is, to ensure
The objective of the discussion is to discover the reasons and the consequences of the crime and the the same protocols are used and guarantees are provided in each judicial administrative region of
responsibility involved, and to make a decision together about how reparation can be made and how the country. In these systems, referrals are primarily made by the police, the prosecutor, the parties
re-offending should be prevented. The neutral, impartial person mediating at the conference is called and their attorneys.
a “facilitator”. The facilitator’s role is less prominent than the mediator’s. The facilitator primarily In “relatively dependent” (or partially integrated) systems, successful restorative justice procedures
focuses on prompting communication between the parties. As opposed to mediation, conferencing (i.e. when an agreement is reached) have some kind of effect on the criminal procedure (for instance,
puts more emphasis on the discovery of the past events, and the expression of emotions has an equal the judge can mitigate the sentence) but they do not replace the sentence entirely. The restorative
or even bigger role than rational considerations. and the criminal procedure are therefore carried out simultaneously. In these systems, the (NGO or
state) mediator organisation closely cooperates with the criminal justice system to provide mediation
[Link] The “circle” model services. Most referrals are initiated by courts, the parties and their attorneys.
The “circle” model reflects democratic principles the most, and it is used to solve the issues of larger In “independent” restorative programmes, the result of the mediation does not have a legal effect on
communities where the main objective is to ensure that the affected community is represented by the the procedure of criminal justice, that is, a penalty (in most cases, a non-suspended prison sentence)
largest possible number of representatives. The victim, the offender, their supporters, the members is imposed, regardless of the programme. The primary objective of such programmes is to provide
of the community and the representatives of the criminal justice system join the same circle and for the (symbolic rather than material) needs of the participants. This form of mediation is generally
reach a consensus on the judgement, they identify the grievances together, and specify the measures offered when the crime is grave. The mediating organisation is only loosely connected to the criminal
necessary for preventing re-offending. justice system and is in most cases an independent NGO. The programmes allow the building of a
decentralised system of institutions to launch local (pilot) model programmes, therefore it is not
[Link] Community work guaranteed (but not impossible either) that the services are offered in a standardised system and at
It is debated to what extent work done for the community (community work sentences) can be a national level. Most referrals are initiated by the parties themselves.
considered a restorative practice. If we only regard as community work cases in which the work is The reasons behind the development of restorative justice are different in each country. In some
carried out in a mandatory manner as a result of a court sentence (as a punishment), then it does not countries, citizens were not satisfied with the traditional justice system (in Belgium, Finland, Norway,
qualify as a restorative method because the work is not carried out on a voluntary basis. However, in Portugal and Spain, for example) and the possibility of diversion dominated (for instance, in Belgium,
cases where community work is undertaken by the offender voluntarily, and its main goal is restitution Finland and Norway). For juvenile offenders, the following considerations were taken into account as key
and not punishment, community work as a sanction can be considered a practice of restorative justice. factors: the extension of the social support and welfare system to the criminal justice system (Belgium),
If community work is applied in this form, it is emphasised that the crime is not simply a violation the enhancement of the educational effect (France, Italy, Portugal and Poland), the implementation
of a general legal or moral rule but it is also an activity actually causing damage to the community. of rehabilitation-related objectives (Germany, Sweden and Spain) and the offering of a wider scale
The restorative approach to community work can have a large impact in those societies where intra- of sanctions (Germany). In the majority of countries, mediation is primarily applied in the case of
community ties have loosened and where the real meaning of “community life” is disappearing. minor crimes (crimes against property or crimes causing bodily harm) (Miers–Williemsens 2004).

50 ////////////////////////////////// +++++++++++++++++++ 51
 When mediation in criminal cases is applied successfully, the a differentiated sanctioning system, it has become a primary objective of criminal policy to allow
most typical results around Europe are the following: diversionary measures (measures that divert the case from court) to be used as frequently as possible,
and to apply imprisonment as a sanction only if the crime is severe.
• the prosecutor suspends the procedure and the accused person
has the opportunity to make amends during the period of suspen-
Before the specific legal and institutional reforms were adopted, Parliament adopted the National
Strategy for Community Crime Prevention (hereinafter strategy) in 2003 which included a somewhat
sion. The case is closed if the accused person takes responsibil- “utopian” vision. The strategy describes the key areas and activities of crime prevention systematically,
ity for the crime and provides reparation for the damage caused. including the tasks that must be completed in the interest of effective crime prevention. The strategy
(Austria, Belgium, the Czech Republic, England and Wales, Fin- specifies the key measures that must be implemented for a pluralistic criminal justice system.
land, Hungary, Germany, Italy, Poland, Portugal, Spain, Slovenia); According to the strategy’s approach, effective prevention and treatment of crimes are no longer the
• for adults, the case is diverted before it goes to the prosecutor
(France and Luxembourg);
obligation of the state; neighbourhoods, civilians and NGOs and business associations will also have
significant roles. In the interest of implementing the strategy, the National Crime Prevention Board
• the results of the mediation procedure are taken into consider-
ation when determining the sentence (England and Wales, Hun-
provides funding to a large number of initiatives each year whose objectives are in agreement with
the following five priorities of the strategy:
gary and Finland);
• the sentence is suspended (Italy and Spain), replaced (Germany) 1. the prevention and reduction of child and juvenile crime rates;
or reduced (Germany and Poland) if the offender carries out his/
her side of the agreement; 2. improving the security of urban areas;
• as a special measure for juvenile offenders, the young person makes
a “contract” with the probation officer on the content of his/her 3. the prevention of domestic violence;
law-abiding conduct in the future (England and Wales, Portugal).
4. the prevention of victimisation, helping and compensating victims;

5. the prevention of re-offending.

[Link] The development of the Hungarian legislative background
The most frequent problems that need to be tackled in Hungary After the preparatory phase described above, the regulatory and institutional background of
when reforms with a restorative approach are carried out are the mediation in criminal cases at a national level has been developed gradually by 2007. However, due
following: to the limitations of this article, details of the current regulatory and institutional background cannot
be discussed now, but will be explored in other articles in this publication (see articles 3.4 and 5.2).
• human and financial resources for criminal justice reforms are
scarce; 1.2.4 Theory and practice: the relationship between legislation and legal practice
• the professionals’ lack of special training and inadequate foreign
language skills block the process of acquiring new knowledge The practical evaluation of the theory and principles of restorative justice cannot be carried out without
and skills; asking the opinions of the key actors of mediation, for instance prosecutors and judges. I made an attempt
• the lack of an established institutional background (for the
reintegration of the offenders, the protection of victims,
to inquire about these opinions by preparing an attitude survey of 46 prosecutors and judges through
in-depth interviews in 2006 and 2007, that is, before mediation was introduced in criminal cases and
community alternative programmes for restitution etc.); when legal practitioners could only voice their expectations and feelings about the new system as there
• the state’s refusal to cooperate with non-governmental
entities and the state’s aversion to services provided by non-
had not been any practice of it in Hungary before then. I will now present an overview of the results.
One of the most important lessons of the survey was that the ideal sanctions pictured by the interviewees
governmental entities; and the known effects of certain restorative techniques overlapped to a large extent. However, it is also true
that the “wish lists of an ideal sanction” visualised by the participants did not include the representation
As a result, Hungary’s situation is controversial as bottom-up of the victims’ and the community’s interest and the voluntary side of mediation was also not mentioned.
initiatives are only permanent and viable if they are supported from Both the prosecutors and the judges mentioned that the official procedures do not provide a trained
the “top”, that is, by the government and if they gain external support professional nor time or opportunity for the victims to explain the negative effects the crime had on
from international organisations (primarily the European Union). them, the related needs they may have, their main concerns etc. The authorities in the procedure are
Consequently, by the mid-2000s, the state itself has gained a more simply inadequate for handling the victim’s complaints. On the one hand, their workload is too heavy and
and more prominent role in the introduction of restorative justice they have neither the time/capacity nor the training needed for carrying out such activities and on the
in Hungary. A comprehensive reform of criminal policy started in other hand the rigid regulatory background of the criminal procedure does not allow the discussion of
2003 in Hungary. A key objective of this was to add new alternative any topics between the victims and the legal practitioners that have little to do with the “subject-matter”
sanctions to the existing ones and to establish a so-called “double- of the procedure before the procedure or the court. The lack of opportunities to provide psychological
track criminal policy”. In accordance with the approach of building and moral support to the victims is frustrating for both the victims and the legal practitioners.

52 ////////////////////////////////// +++++++++++++++++++ 53
 Based on the 90-minute conversations with each interviewee, they were classified into four groups conduct, reparations and dialogue etc.) that are also fundamental items of the restorative practices’
according to their character type: the “official”, the “teacher”, the “philosopher” and the “self- methodology and approach. This supports the notion that the restorative and the more traditional
evaluator” tags imply the dominant character of each legal practitioner were and the aspects he/she sanctioning systems are compatible in many ways and that the two systems are more similar to each
considered the most important. Of course, the individuals showed the combined characteristics of the other than they appear to be at first glance. Nevertheless, it is a political (criminal policy) decision
different categories; therefore none of them could be classified into one single category. (However, where the borderline, above which private agreements must be combined with the exercising of the
the concept behind the typology and the proof for its validity need further, in-depth research.) state’s criminal power representing the interest of the public, is set.
It is a striking result that the legal practitioners are willing to hand over the decision-making power to the
victim, the offender and other persons affected by the crime. There is a consensus among professionals
Types of legal practitioners Description
that to some extent the crime is the parties’ private matter as they are the ones that can express what they
need in order to repair the damage and to prevent future crimes. The practitioners believe that handing
Strong self-reflection and self-criticism; realises own boundaries; emphasises own
motivations; emphasises emotional aspects; empathy to clients; primarily uses first
over the power of decision-making is a rational move if basic personality/moral rights are respected, the
The “self-evaluator” person singular; a committed professional; introvert (the only one out of the four); procedural rules are kept and it is guaranteed that the victims are not re-victimised in the procedure.
speaks silently; long pauses in speech, stops to think a lot; micro-level analysis.

1.2.5 Final thoughts

A provider type; believes in the educational effect of the procedure and the judge/
prosecutor; the importance of the legal practitioner’s subjective approach in the
procedure; categorical thinking; self-confident in role; believes in the possibility of In an ideal case, restorative justice is introduced through social, regulatory and institutional reforms.
The “teacher” change; pays particular attention to juveniles; very little self-reflection and insecurity;
more observations about the external world; community-level (meso-level) analysis; However, even if no regulatory or institutional reform is implemented in a country but the professionals
determined style of speech, raised voice, fast speech, no interruptions between of the related sectors use restorative practices consistently in their daily work (see the text highlighted
arguments.
below), it can be concluded that restorative approach has started to gain ground among the social
Emphasises general connections of logic; holistic approach; statement of beliefs; policies of that particular country. And this alone can effectively help easing the tensions at micro-,
self-criticism and criticism of the system; sarcastic approach, but believes in people
The “philosopher” in general; reserved tone, balanced intonation; reflects “peacefulness”; macro-level meso- and macro levels.
analysis. The list below includes the character traits that the participants
Organisation, rule and procedure oriented; his/her main goal is doing his/her job in (victims, offenders and other parties) should ideally have or should
a conscious manner and according to the rules; seeks to reduce the amount of work be encouraged to show and the professionals should keep in mind
to a minimum; focuses on possible hindrances and difficulties in connection with
The “official” the reforms; rigid; considers deviation from standards a problem; lack of criticism when preparing for a restorative programme of any kind. In any
of the system; cynical approach to clients; statements rather than questions; lack case, the professionals, the participants and the other affected
of emotions; relaxed manner of speech; balanced intonation; brief or lengthy,
monotonous. parties must all have a certain level of the following qualities:

• asufficient
sense of security,
Table 1 • responsibility,
self-esteem and a positive self image,
Some indicators of the
• honesty,
four character types
• the ability to identify their own needs,
• the ability to express themselves openly according to their own role,
The research proved that legal practitioners do not have consistent moral reasoning and penal philosophy • the ability to trust,
when they consider the necessity of punishment or when they apply punishments in everyday practice. And, • a sense of community,
although they consider deterrence the main objective of punishment, many of them said that punishment • respect and recognition of others,
itself is not suitable for deterrence. It can be assumed on the basis of the interviews that it is a more • the willingness to take care of others,
important factor in decision-making to make sure there is actually a response to crime and it is a less • the ability to listen and understand the other side’s views,
important criterion that the response should be painful to the offender. This distinction is highly relevant • cooperation,
in studying how restorative programmes can be added to our current penal system. • the ability to confront and support the others at the same time,
Due to the organisational structure of the prosecutors’ office and the court system, legal practitioners • the motivation to understand and learn,
rarely have the opportunity to share their recommendations and creative solutions with their colleagues • openness to making / accepting reparations,
and to have them implemented in practice. Isolation and hierarchy together create a conservative • communication skills,
system and make it difficult to implement reforms in practice. This, coupled with other factors, quickly • openness and trust regarding the external and independent mediator,
leads to the practitioners’ burning out. The lack of external analyses and the resistance to reforms • partner-based communication,
have a double, back-and-forth effect: the less possible (or mandatory) it is for an organisation to • demand for external evaluation and feedback,
open to the public, to become transparent and to reflect on itself, the more important the strategy of • permanent self-reflection in practice regarding the basic
avoiding these becomes and the organisation isolates itself from the public.
While listing the elements of “ideal sanctioning” legal practitioners mentioned a number of
• principles, and
phenomena (support, supervision, the offenders confronting their own crime, the offender’s active • respect and encouragement for personal and voluntary undertakings.
54 ////////////////////////////////// +++++++++++++++++++ 55
 Maybe a similar list (as the one above) should be put on the wall of all of us. If our goal is to spread
restorative practices in Hungary, we can achieve a lot just by looking at the list on the wall and
evaluating how we could represent these principles in our daily work and life.

References

• Christie, N. (1977) Conflicts as Property. British Journal of Criminology, vol. 17, no. 1: 1–15.
• Gavrielides, T. (2007) Restorative Justice Theory and Practice: Addressing the Discrepancy. Helsinki: HEUNI
• Miers, D. and J. Willemsens (eds.) (2004) Mapping Restorative Justice – Developments in 25 European Countries.
Leuven: European Forum for Victim Offender Mediation and Restorative Justice

Documents

• Parliamentary Resolution no. 115/2003 (X. 28.) on the National Strategy for Community Crime Prevention ([Link]
[Link]/[Link]?pid=19)

56 ////////////////////////////////// +++++++++++++++++++ 57
 Ass. Prof. Dr. John Blad and Jan van Lieshout

2. John Blad: Erasmus University Rotterdam (the Netherlands)

Contact +++ blad@[Link]

Restorative practices in crime

prevention (outside the criminal
justice system)
2.1
Families Solving their Problems –
Family Group Conferencing on
Family Problems in the Netherlands
2.1.1 Introduction

In the Netherlands, experience with family group conferencing has

been gained for a number of years. A family group conference (Eigen
Kracht-conferentie, hereinafter EKC) is a method of letting the
responsibility for decision making, where severe family problems
are concerned, remain with the family itself. It provides the family
with an opportunity to make a plan, using their own capabilities as
well as resources from outside the family.
It is not just a method; it is a procedure that enables citizens in
vulnerable positions to devise solutions for problems that arise in
their own social environment. From the start, in 2000, it has proven
to be effective. Even under difficult circumstances, citizens are able
to work towards effective solutions and safe plans as a joint effort
of family and friends. In the case of conflicts, a great deal can be
accomplished by the cooperation of people, whether in a small or in
an extensive network of people. Saying out loud what has happened
to you, and how this has affected you, decreases negative feelings,
and opens the way to a plan for recovery. This is a simple, effective
and inexpensive approach.

58 ////////////////////////////////// +++++++++++++++++++ 59
 Inspired by the family group conferencing movement that in the relation between state and citizens (this is emphasised more than in the last few decades):
originated in New-Zealand, various conference and network responsibility for the public sphere of society is shared by all. Over the years, the conference has
approaches have been developed. This article describes the setting become a very effective means for citizens to rediscover their responsibility for their community and
up of the Eigen Kracht Centrale (the National Centre for Restorative to play their part in it.
Action); the first conference was held in 2001 and a total of twenty
conferences were carried out that year. It was expected that the 2.1.3 Four strategies for introducing Eigen Kracht
number of conferences would increase to about eight hundred in
2009. The data that were gathered through registration and research With this background, with the increasing use of conferences, four strategies used by the Eigen Kracht
completed in 2008 will be used to illustrate the development of Centrale can be distinguished. Originally, family conferencing became more popular by word of mouth.
conferencing in the Netherlands: the method itself; its most As many conferences as possible were held in various places, rather arbitrarily, to gain experience
important results and some issues that arose on evaluation will and to develop good practice. Information on what happened during conferences and what results
be described. were achieved was passed on by organisations, professionals and experts to governmental bodies.
Until 2007 – the year that the landmark of 1000 conferences was passed – this strategy prevailed.
2.1.2 Increase in the use of family conferencing In the meantime, a second strategy evolved: embedding the conference model in the procedures
of official organisations. The decision making about the help that is offered to clients is dominated
When conferencing was introduced in the Netherlands, the Eigen by professionals, which makes it harder for citizens who come to ask for help to voice their own
Kracht Centrale made use of the knowledge and experience opinion on what help exactly they need. And once they have become clients of the official procedure,
available in New Zealand, where the Children, Young Persons this professional dominance is maintained by a combination of diagnostics and therapy, as defined in
and their Families’ Act was passed in 1989. This law ensures that protocols. The client fades to the background as far as decision making is concerned. Although this
the family has the first say in determining the course of action to has not yet been achieved, it seems possible for the conference to become a pivot point, a decision
make necessary changes concerning a conflict with society about moment in the procedures of institutions. This has not, to the present, been achieved by grass roots
expectations and rules on raising and educating a child. movements. However, boards of organisations and especially the political government can make this
Youth care was the domain in which the first conferences took second strategy successful. In 2009, in one of the Dutch provinces a document was drawn up in which
place. During the first five years, the focus was almost exclusively the government and the organisations involved name the conference model as a starting point for
on the health and well being of children and adolescents. In the providing care. These organisations now offer conferences as a standard procedure.
last three years, the attention gradually shifted towards problems This is a major step toward a third strategy: finding a legal basis for the right of citizens to make a
of adults: drug abuse, public nuisance, financial problems; in plan of their own before outsiders, be it the law or civil institutions, impose their plans.
many cases there are serious problems that concern parents Actually, this strategy follows from the second, since if the conference is part of official procedures,
and children alike. as a logical consequence it also has to be regulated formally.
The increase in the number of conferences held is characterised The present legislation in the Netherlands concerning unemployment, youth care and social support
by a threefold growth. implies that citizens also have responsibility.
Firstly, there is an increase in numbers. The yearly growth The fourth strategy consists of the documentation of the conferences for research purposes. This
was at least 25% and often as much as 30%. We can now draw strategy has been employed from the very beginning and supports the other three. It facilitates the
from experience from about three thousand registered cases of support of organisations when they want to make a shift in their policy from offer-orientated thinking
conferencing. to demand-orientated thinking.
Secondly, the number of areas in which family group conferencing After five years of research into related data, the general lines concerning the usability, procedures
is used has increased. Similarly to other countries, the safety of and result of the conferences had become clear, and new research questions arose: what are the
children was the main issue in the Netherlands as well: EKCs long term effects of family plans? Does it make a difference whether or not a conference was held
were most commonly initiated by child protection court orders. with regards to the care that was offered and the result of that care?
Presently, there are also other issues that lead to conferences, like Does a conference change the cost of the care offered? Does the conference model contribute to
the disturbed development of children, neighbourhood conflicts, a active citizenship?
lack of security in the social environment, or domestic violence. At Gradually, such research has been carried out. 2007 was the first year in which an answer could be
present, the child still has the leading role in a conference, but the given to questions concerning long term effects. The research showed that the safety of children remains
part is played by an adult more and more often. intact over the years and that the need for social care within the family decreases drastically after a
Thirdly, there is a growing conviction that the conference model conference, much faster than without a conference. The research also provided remarkable insight in
strengthens the position of a dependent client in relation to the relation between professionals and communities. For instance, they use the same criteria concerning
institutions, and empowers citizens. The present government policy safety. Professionals get to know more people in the community; there is a greater chance of cooperation
intends that a family requiring care from the government should and during the first year after the conference the family grows stronger and starts pulling the strings.
first look around in its own network to see what help is available. Thanks to this strategy of continuous research, the Eigen Kracht Centrale has a yearly report on
This results in a more equal sharing of rights and responsibilities the data of EKCs. An overview of the most important findings from 2008 is given below.

60 ////////////////////////////////// +++++++++++++++++++ 61
 in conjunction with contact arrangements with parents or others. School-related problems occur
2.1.4 What happened in 2008? frequently as well. Where adults are concerned, there is more emphasis on independence, often in
combination with housing and financial management.
In the documentation concerning the year 2008, a total of 471 During the preparations, children take part in discussing the questions. Unless it is absolutely
conferences are included. The number of referrals for that year impossible, it is preferable for them to be present at the (their) conference. A mere 20% is younger
is a lot higher, but for a lot of conferences the results, and hence than 4 years and 35% is older than 13, the remainder is in between. In 2008, 601 minors attended
the statistical data, were only going to become available in 2009. conferences: they were either (partly) the subject or they were present as a friend.
In 2008, the initiative to hold conferences was still mainly taken
by organisations (78%). In 22% of the cases the initiative was taken 2.1.5 A conference activates
by the family, in 10% by the affected person.
From early on in 2001, it became In the last three years, the proportions gradually changed; the Applying for a conference does not necessarily mean that a conference actually takes place. However,
clear that conferences are deal- number of applications not coming from organisations doubled. there are no waiting lists. Within a few days after the application is made, an independent coordinator
ing with some rather serious is- Families and citizens in general seem to have discovered the will be at work with the family, trying to raise interest among relatives, friends and acquaintances
sues. Almost all families that took method. They are getting increasingly familiar with the possibility in attending the conference.
part in a conference in 2008 had of making their own plan when they need a social worker to help A coordinator is a person from outside the family, who additionally has no link whatsoever with
experience with social care work- them with their problems. professional organisations that can be of benefit or disadvantage to the family. Their strength lies on
ers, some of them (8%) for over the one hand in the ability to assist families with the preparations for a conference, and on the other
ten years. In half of the families, hand in their independence. Actually, they are fellow citizens who consider this work as an interesting
youth care intervention measures The people in the social environment of the family are usually social task that can be fulfilled (temporarily) alongside their regular job or pursuits. They cooperate
had been considered. Only 10% of aware of these multiple problems. They have their (unique) history with the Eigen Kracht Centrale, which provides them with a short training as well as facilities that
the families never had any involve- with the family and often see the connection between behavioural can be used during their coordinatorship. They get paid for their working hours. Countrywide, four
ment with social care. problems of the child and the parents being overburdened, divorced hundred coordinators are available.
Children are at the centre of a lit- or unemployed or having some kind of addiction. Thanks to their unprejudiced and independent position, coordinators provide a certain balance between
tle over a half (52%) of the confer- The social care workers and other professionals who deal social care institutions and the families that depend on such institutions. Together with the family they
ences. The other conferences are with family problems in their own specialized field (family social work out what information from professionals can be helpful and which professionals can assist at the
about a combination of problems worker, debt management, school director, etc.) are logically conferences by bringing information. Coordinators are mainly concerned with empowering the family
concerning adults and children mainly concerned with aspects of the problems connected to their and bringing the family’s social network together in circumstances that are guaranteed to be safe. This
(33%). The remaining conferences specialized area and do not have the knowledge or competence to is especially the case for the minors in a family.
deal exclusively with the problems see the connections that are known within the community. What When the family starts making their plan, this is done in private. Neither the coordinator nor the
of adults (15%). is even more serious, however, is the fact that a majority of the professionals are present. The coordinator does, however, stay near.
The fact that not only children are professionals exclusively deal with the “client” or the “nuclear Activating the network around a family takes some weeks. For families that have been experiencing
involved in conferences means family” and seldom (want to, or can, or are allowed to) get in problems for a while already, this is not always an easy period. Problems often result in isolation, and it
that often multiple problems are touch with the other family members. This fact also explains why takes a lot for families to dare break it. Sometimes the family and the network have lost their faith in each
dealt with (an average of 3 per frustration can arise when implementing the solutions decided on in other for quite a while already. Sometimes the network is largely ignorant of the problems (for example,
conference). This is what makes a conference: the social care workers work for their own specialised of domestic violence), or there is a shameful reluctance to come forward with problems.
conferences special from the organisations and lack a platform where they can cooperate. In 2008, in 34% of the cases where a first initiative was taken, no conference was held. In the first years
point of view of social care. From the registration of the problems that are dealt with in this was 25%. Amongst others, the increase is explained by the fact that in the last few years the number
conferences, it becomes apparent that whole new perspectives of initiatives has greatly increased, also from organisations where there is insufficient knowledge on family
are to be gained from cooperation between social care workers. conferencing. It is very important how this method is implemented.
While organisational cooperation usually cannot be forced from the The fact remains that throughout the years a number of attempts at realizing a conference was wrecked
outside or indeed, cannot be ordered centrally, plans that are made in by a disagreement that could not be overcome, because conflicts obstructed the necessary safety, or, in
the social network would make this cooperation necessary. Families exceptional cases, because the social network was too small. In about 10% of the cases it is unknown
for example perceive the difficult behaviour of their children as what exactly happened after the first explorations that lead to no result.
resulting from the medical treatment of the mother or the aggression On the other hand it is also known that in a third of these activating processes a conference is no longer
of the father, and urge coming to agreement in respect of the children needed: a positive result is achieved via another way. The mere getting in touch again can lead to a plan
and ordering therapy or (residential) care for the father. or agreements. There is reason to believe that the activating work of the coordinator in itself can lead to
Each conference starts with a number of concrete questions, results, and further research in this direction will be done in the next few years.
to which answers have to be found. In 2008, as in preceding This adds up to 66% of the initiatives having resulted in a conference. In over 10% the subject matter
years, the questions concerning children were mainly about their was the problems of adults, and a large majority was about children and their parents.
education and their behaviour, or about their residence, sometimes Almost three-thirds of the conferences are held within 8 weeks from the application. 84% are concluded

62 ////////////////////////////////// +++++++++++++++++++ 63
 within 13 weeks. These are favourable numbers, compared to the The majority of the families sets a date for a meeting where (part
waiting list times that have been agreed upon as acceptable between of) the family gathers to see to what extent the agreements have
health care institutions and the government: a first contact has to be been kept and if some of them have to be adjusted. No such date is
made within nine weeks. An interesting detail is that conferences are set in only 8% of the cases. Furthermore, 82% of the plans provide
not even considered by these contracting partners, although it became for contingencies. Also, families tend to include short term safety
clear recently to what extent the waiting lists in the case of health care mechanisms, too.
institutions exceed the allowable limit. In many cases, with the help of At the end of the conference the coordinator says goodbye to the
a conference, a plan would have been available already. family. Participants are contacted two more times. Firstly, about
Families decide where their conference is being held. Usually a month after the conference, for support, to speed things up if
they choose an informal location (64%) like a community centre, a there seems to be a slow start. The second time is for research
church or a public establishment. 10% take place within the walls of purposes only.
a social care institution. It is a follow-up of the proceedings which is handed over to the
Almost all conferences are concluded within eight hours, but over researchers. During the follow-up, contact was made with an
half of the families need no more than five hours. An average of average of over three persons and 90% of these interviews took
thirteen persons participates but this number varies greatly, from place within six months after the conference.
three at a very small conference to fifty at a very large one. Often,
the people at the conference share a meal. The making of the plan
is done in private. A large majority of the families complete the 2.1.7 Looking back on the conference
plan within three hours.
After the conference, the participants are given a questionnaire. They Regardless of the position of the
2.1.6 Outcome and follow-up are asked to indicate whether they, each from their own position, respondents, 43% reply that the
were sufficiently prepared for the conference and if they were able plan was executed completely,
It is an exception for a conference to end without unanimity about to realise their objectives. The response to these questionnaires was and 45% that part of the plan was
a plan. In 2008, 96% of the families made a plan. They laid down in 65% from the part of professional social care workers and in 74% executed. Over 10% reply that
the agreements in writing. In 3% the plan was not yet finalized, from the part of the families and the social networks. the plan has not been executed
because it was unclear what resources were available. It is not In the past, research has been carried out in order to find out what at all. A few illustrative remarks:
necessary for the whole group to be involved in the agreement; professionals proposing a conference to a family are interested in. “Everything works all right. One
sometimes a part of the social network shoulders the plan. In a They want to know what part they can play, what the proceedings are month after the conference one
very limited number of cases (1%), the questions were returned to at a conference in general and at their own conference in particular, item of the plan had to be adjust-
an organisation without a plan. and what it means when families bring in their own resources. In ed. An aunt and uncle did not keep
Per plan, families make a large number of agreements. We their reaction, the professionals look back with satisfaction on all their agreements. Everything is
have learned from the past that a plan holds an average of 18 of these items. They get sufficient information on their role (96%), working out exceptionally well.”
agreements, spread out over a number of interconnected areas: and know enough about the subject matter of the conference (99%). “The family guardian is going to
housing and care, finances, leisure time, therapy. On average, they rate the conference 7.3 on a 1 to 10 scale. try once more to encourage both
In 70% of the plans it is necessary to check the agreements The plan gets an average rate of 7.3 as well. The professionals families to honour the agree-
because of a court order: are the agreements safe for the children? pay attention to the feasibility and the clearness of the plan, as well ments they made in the plan.
In the majority of the cases (94%) this proved to be the case. In a as to safety and cooperation within the social network. The marks Neither family seems motivated
number of cases additional measures had to be added to the plan. 7 and 8 are given most. From the beginning in 2001, the plans have and they are reproachful toward
No permission was given at two conferences (from a total of 218 been valued between 7.2 and 7.6. each other.” “A minor adjustment
plans), because the families had adjourned the meeting against The coordinator and the region manager, the person who accepts was made to the plan. Things that
the will of the guardian. the plan and who coaches the coordinator, get high marks from didn’t work out have been tuned
As far as children are concerned, one of the questions often professionals, 7.9 and 8.2 respectively. What matters in their case down. The main issue of the plan
concerns residence: will the child stay with the parents? Will he/ is clarity, speed, atunement and patience. is going very well, actually.”
she stay with one of the parents? Which one? With the family? With The members of the families and the social networks that
strangers, or in a home? Even if the question is not asked, a change participate in the conference give high marks as well. 7.7 for the
in residence often occurs: 27% of the plans contain a change in conference, 7.6 for the private time, 7.8 for the plan and 8.1 for the
housing. Further analysis shows that this change in the child’s coordinator. The professionals with whom the family dealt with
residence can be seen as a less intensive form of help, given the were rated 7.2.
related costs. In about a quarter of the cases the families decide These ratings are given by people who surround the main person in
on more intensive measures than before. the conference, such as parents, brothers and sisters, but more often

64 ////////////////////////////////// +++++++++++++++++++ 65
 uncles or aunts (19%) or friends (22%). In the classical and traditional
forms of care (youth care, psychiatry), in the contact between social
care worker and client, these people are seldom present.
In the conferences, these people from the environment of the
main person indicate that they have contributed to the conference
by adding their own information (64%), by having been able to ask
what they wanted (92%), by having been able to say what they wanted
to contribute (93%), and by being able to be part of a solution (83%
yes, 14% partly). This indicates a large source of strength in the
social environment of people or families who experience problems.
The answer to the question whether they felt at ease during the Aarne Kinnunen
conference was 86% positive and 10% rather positive. Ministry of Justice (Finland)
332 minors gave their opinion on the conferences that were Contact +++ [Link]@[Link]
registered in 2008. 45% of them are aged between 5 and 12. Three
quarters of the children mention that they were listened to. They
rate the conference, the plan and the coordinator 7.8 or higher.

2.1.8 Trends

The number of EKCs keeps growing, but the number of families that

2.2
goes through the activation phase in a way that makes a conference
superfluous grows relatively faster. Eigen Kracht has a nationwide
coverage, although the numbers of conferences differ in various
provinces according to the availability of financial means. Where
the political government, whether or not in cooperation with social
care organisations, is actively supporting the introduction family Resolving Conflicts in
conferencing, a strong increase can be seen.
The number of fields in which conferences are used increases.
Youth care still grows in absolute numbers, but is getting relatively
Schools in Finland
smaller. The increase in citizens who themselves apply continues.
This means that the main person in a conference will tend to be
an adult more often.
The opinions of the participants over the years show a stable
image. Professionals, when they are supervising, judge the plans
as safe and feasible. Plans contain less intensive care than would
have been offered from a strictly professional approach. Research
in the sustainability of social network shows that the network grows 2.2.1 Conflicts in Finnish schools
even more in strength after the conference, that it builds a good
report with professionals, while asking for less support. The Finnish Act on Basic Education states that a child has the right
Some months after the conference the plan was executed partly to a safe studying environment. Schools thus carry the responsibility
or completely, according to 80% of the respondents. Satisfaction to react to possible tensions and to ensure that there are enough
remains at an invariably high level. Or, like one of the young persons methods to prevent conflicts. Since harmful and disrespectful
added to his research form: “If I could do it2 again, I would do it behaviour occurs on a daily basis in schools, it is necessary to create
2
I.e. the conferencing. exactly the same way!” different methods to prevent bullying, violence and other types of
aggressive behaviour and to create a safe and comfortable learning
environment. Schools should thus, in addition to basic educational
duties, also help students to build social and emotional skills within
the school community so that schools can be safe and just places.

66 ////////////////////////////////// +++++++++++++++++++ 67
 The Finnish educational system has been remarkably successful Finnish surveys on bullying in schools have shown that physical disciplinary punishment by parents
in comparative surveys that measure the efficacy of education in is a key factor explaining both being a bully or being bullied. Children who often witness violence
different countries. Finland was the highest-performing country between others in their homes are also more likely to be victims of violence themselves, and both
on the OECD´s PISA 2006 survey in the science scale and second forms of exposure represent incalculable levels of current misery and long-term damage to the
highest in reading ([Link]). Despite of this achievement, development and wellbeing. Also, poor working climate in schools and depression can cause bullying.
according to the Unicef Innocenti Research Centre’s studies, Finnish Bullying is often kept in the dark. Those who are bullied often do not talk about their experiences with
students do not particularly enjoy going to school (see child poverty). grown-ups (Luopa et al. 2008). Promoting pro-social bonding through the development of academic,
Especially boys are fairly dissatisfied with the school atmosphere emotional, and social competences of both bullies and of those being bullied can prevent bullying.
and pupils’ satisfaction with school environment decreases during Much of the child and adolescent violence that occurs in society takes place in schools. This fact
school years. This finding is in stark contradiction with a more places schools in a key position to help us understand the dynamics of bullying and victimization and
general finding, namely that there appears to be a strong correlation to test the effectiveness of strategies for prevention and intervention. In the context of schools the
between liking school and educational achievement. It is a self- status of “victim” and “offender” is often unclear and after the incident pupils are likely to meet each
reinforcing relationship; those who do well tend to like school other again. Therefore it is extremely important to teach conflict solving methods as well as social
and those who like school tend to do well. It seems that despite and emotional skills in schools. Schools are in contact with almost the whole juvenile population,
achievements in efficacy of education, schools in Finland have not which makes crime prevention efforts particularly cost-effective. A good learning climate in schools
been that successful in fulfilling other, more social goals, e.g. can contribute to the child’s positive growth more than the home climate on its own. Therefore peer
teaching communication skills, teaching social skills and preventing mediation and other restorative justice approaches are particularly interesting methods to be applied
exclusion from society. in school environments.
According to self-reported studies on criminal behaviour, the
prevalence of delinquency of young Finns has decreased (see Figure 2). 2.2.2 The concept of restorative justice and mediation
For example, theft and participation in shoplifting in particular seem
to have lessened. The same goes for damaging property. However, Different proponents have different ideas about what restorative justice is or should be. According
participation in violence and bullying has not decreased. to Marshall (1999) restorative justice is a process whereby parties concerned by a specific offence
Bullying in Finnish schools is thus fairly common. Around 8% collectively resolve how to deal with the aftermath of the offence and its implications for the future.
of primary school pupils are bullied at least once a week and 18% A common tool for practising restorative justice is mediation. Mediation is a voluntary method
have experienced physical threat during the past 12 months (Luopa of conflict management in which an impartial outside party, the mediator, helps the parties of the
et al. 2008). Boys clearly experience bullying more often than girls. argument, through a particular mediation process, to come to an agreement that satisfies the arguing
Boys also bully others more often than girls. Amongst girls, bullying parties. One central aspect to mediation is letting the parties meet, face to face, in order to discuss the
happens in the form of gossiping and manipulation, in the case conflict or crime. The mediator directs the process to which the parties then find a solution themselves.
of boys bullying more often means elbowing, nicking property, The goal of mediation is also to increase victim satisfaction and to prevent offenders´ crimes in the
Figure 2 punching and kicking (Salmivalli et al. 2009). Mobile phones, e-mail future, especially in the case of juveniles. Within the context of restorative justice, conflicts should
The prevalence of lifetime self- and various other forms of internet messaging have enabled new be seen as opportunities for growth and development.
reported delinquency of young Finns forms of bullying.
1995–2008 (Source: the National
Research Intitute of Legal Policy)

%
80 Mediation is not any particular practice, but rather a set of prin-
70 ciples which orientates the general practices of any agency or
60 group in relation to crime. These principles are

• (particularly
50
making room for the personal involvement of those concerned
40
the offender and the victim, but also their families and
30
communities),
20
• seeing problems of crime in their social context,
•
1995
1996
1998
2001
2004
2008

1995
1996
1998
2001
2004
2008

1995
1996
1998
2001
2004
2008

1995
1996
1998
2001
2004
2008

10 a forward-looking (or preventative) problem-solving orientation,

• flexibility of practice (creativity).

Theft Damaging Violence Bullying

property
68 ////////////////////////////////// +++++++++++++++++++ 69
2.2.3 Peer mediation As stated above, peer mediation in Finland has had a positive impact on school discipline and
curriculum. The use of mediation has decreased the need of interventions by teachers and principals.
Peer mediation as a restorative practice is a promising and popular method for solving conflicts in However, there were big differences between schools in adapting peer mediation in the school
schools. In Finland, peer mediation started with a Finnish Red Cross project in 2000. Since 2005, the environment. Not all schools were ready to accept the new way of dealing with conflicts. Furthermore,
Finnish Forum for Mediation has carried out a peer mediation project financed by the Finnish Ministry in some schools teachers did not trust pupils´ skills in resolving conflicts, and thought that they could
of Education and the Finnish Slot Machine Association. At the beginning of the year 2009, there were do it faster and better themselves.
308 schools taking part in the project (elementary schools, secondary schools, gymnasiums, and Despite of good results in Finland, globally there is limited research conducted on the impact of
vocational schools). Altogether 6.000 pupils have been trained as peer mediators and 1.200 adults as school mediation. While some programmes have been found to be effective, there seems to be no
supervisors. During year 2008 over 7.500 cases were mediated throughout the country. evidence on the possible long term effects on the school climate. Systematic reviews of peer mediation
The purpose of peer mediation is to lessen dysfunctions in the school by improving the pupils’ show non-significant or weak effects (Gottfredson 1997). Perhaps the most important finding has
communication skills. The idea is to create an atmosphere where conflicts are seen as a part of been increased self-esteem of mediators themselves. Students, who are selected, trained and go
every day life and their resolution more as a positive challenge than a difficult and unpleasant task. through the experience of being a mediator, seem to gain most from the mediation programmes. In
Peer mediation follows a specific uncomplicated model. In this model pupils are trained as mediators fact, a possible danger might be that students who are well disciplined and good in school from the
who then mediate the conflicts of slightly younger pupils. During the mediation, the parties get to tell beginning on will be chosen to be mediators as an award for their conduct. This can increase the gap
their side of the conflict and describe their feelings and think about different solutions to the conflict. between students performing well, and those doing not so well.
By following the model, the parties and the peer mediators reach the point of making an agreement. Furthermore, it can be questioned whether peer mediation is a suitable method for more serious
The implementation of the agreement is subsequently followed up. cases of bullying, where the victim is exposed, repeatedly and over a longer period of time, to negative
A peer mediator in Finland always has the support of a group or a working group of two adults in and domineering actions with a clear purpose of hurting the victim. Handling this type of strong
the school. Before peer mediation is started at a school, training for the whole staff is organised. power-imbalances requires exceptional skills and life-experience from the side of the mediators. Peer
During the training, all the staff members get to discuss the school’s atmosphere and the possible mediators, who are only slightly older than the parties to the conflict, might not be able to distinct
disturbances in it. It is also an occasion to discuss what cases are best suited for mediation and on themselves sufficiently from the influence of the bullies. Therefore it might be safer to leave these
what grounds cases will get referred to mediation. Also parents are informed about the project. In more serious conflicts to be handled by adults.
cases of more serious violence an “expert mediation group” made up of adults create a strategy for However, despite these few doubts peer mediation seems to be a promising method in the field of
how peer mediators should react to a more serious or long term case of bullying, if it is mediated. crime prevention in its attempts to decrease tensions and to improve the studying climate and well-
Early intervention is an important part of peer mediation. Pupils in schools are trained to search being in the school environment. If implemented correctly, peer mediation can enhance learning and
for solutions and look into the future instead of making accusations and seeking to place the guilt. encourage young people to become responsible and empathic. Perhaps, in the future, peer mediation
The goal is to give all the pupils a constructive tool for intervening in situations that are seen as can help schools in creating a safe and comfortable studying environment and solving the paradoxical
bullying or otherwise hurtful. Peer mediators have been trained to go through the main principles of relation of positive school achievements and negative school atmosphere in Finland.
victim offender mediation. Most importantly mediation should be impartial, confidential, voluntary
and solution-oriented instead of punishment-oriented. References
According to results of the surveys conducted in 2005 and 2006 by Maija Gellin (see Gellin 2007),
86% of the cases were verbal or physical offending. Both the leaders of the peer mediators (teachers • Gellin, M. (2007) Peer mediation method as experienced by pupils. An article on the results of peer mediation program
or other adults) and peer mediators described peer mediation with positive terminology. They saw surveys. The Finnish Forum for Mediation ([Link])
it as method that is working well and bringing constructive atmosphere to schools. Teachers also • Gottfredson, D. (1997) School-based crime prevention. In: L. W. Sherman, D. Gottfredson, D. MacKenzie, J. Eck, P.
gained skills that could be useful in teaching and class management. From the peer mediators, 90% Reuter and S. Bushway Preventing Crime: What Works, What Doesn`t, What`s Promising. A Report to the United States
regarded their task as a mediator as important and meaningful. One of the worries was how the Congress. Washington (DC): US Department of Justice
method of peer mediation could be used more widely at schools. • Luopa, P., M. Pietikainen and J. Jokela (2008) Kouluterveyskysely1998–2007: Nuorten hyvinvoinnin kehitys ja alueelliset
Also satisfaction of participants was generally very good. According to the surveys (Gellin 2007) the erot. Helsinki: Stakes
participants shared the opinion that the main principles of mediation were respected in the mediation • Marshall, T. F. (1999) Restorative Justice: An Overview. London: Home Office
sessions. • Salmivalli, C., A. Kärnä and E. Poskiparta (2009) From peer putdowns to peer support: A theoretical model and how it
Peer mediation often leads to settlement. According to the survey, 95% of the cases led to an translated into a national anti-bullying program. In: S. Shimerson, S. Swearer and D. Espelage (eds.) The Handbook
agreement and 88% of the agreements were kept. Most of the agreements include a promise to of School Bullying: An International Perspective. Mahwah (NJ): Lawrence Erlbaum
discontinue unwanted behaviour.

2.2.4 Does peer mediation reduce violence?

Peer mediation appears to be a promising strategy for improving school climate. A well conducted
peer mediation programme can be successful in changing the way students approach conflicts. These
specific practices and skills help individuals understand conflict processes and empower them to use
communication and creative thinking to manage and resolve conflicts fairly and peacefully.

70 ////////////////////////////////// +++++++++++++++++++ 71
 Jur. Lic. Linda Marklund
Uppsala University (Sweden)
Contact +++ [Link]@[Link]

2.3 2.3.1 Introduction

Resolving School The use of peer mediation in Sweden is only starting up, although
Norrbotten as a county has been widely applying it since 2004.

Conflicts through Peer mediation work is not carried out all over the country
homogenously. In Norrbotten, a peer mediation scheme was set

Peer Mediation up at Luleå Technical University in cooperation with the mediation

and negotiation courses held there and with the Association of Local

in Sweden Authorities in Norrbotten. Peer Mediation in Norrbotten became the

first organization devoted to the use and promotion of mediation in
schools in Sweden on this scale. Today approximately 125 schools
and have more than 360 mediation coordinators are involved in
the work. In 2010 these will be providing a 15-hour-long training
session in mediation to over 1.500 students. All other students at
these schools will participate in a day-long workshop that will give
them an insight into what mediation is and how it can help them
resolve their conflicts.

2.3.2 The Peer Mediation Project in Norrbotten

The legal bases for the work are the UN Convention on the Rights
of the Child, the Swedish school law and various school circulars.
There is no act in particular that promotes peer mediation or any
other conflict resolution method and/or any method to counteract
bullying at schools in the Swedish legal system. The law only states
that the individual schools are obliged to carry out work in this area
and should help youth to become good democratic citizens.
In the Nordic countries restorative justice and mediation are
heavily influenced by Nils Christie’s article entitled “Conflict as
property” (1977). On this basis, the mediation movement in Norway
3
Conflict Councils. created “Konfliktråden”.3 Peer mediation in Sweden is heavily

72 ////////////////////////////////// +++++++++++++++++++ 73
 influenced by the Norwegian system and philosophy. The five The funding bodies and organisations (see adove) all have different
principle that have evolved from Christie’s article are that mediation reasons for participating in the project. For the municipalities and
should be carried out freely, peacefully, confidentially, facilitatively the Association of Local Authorities it has been a good way to
and restoratively (see the text highlighted). ensure that they fulfil their responsibilities and legal obligations.
The County Health Board has seen it as a way to provide better
1. Freely – all participants are there freely and should participate public health services. The university has seen it as a good way of
and interact with each other in a free manner all through the being involved in the community surrounding the university and as
mediation process. This is the core principle. a natural extension of the courses in mediation and negotiation.
The programme has also been lucky to get two grants. One from
2. Peacefully – all use of force, threat and other means of pressure the foundation of the Swedish Savings Bank and the other from
are prohibited. Mediation is a peace movement at a grass roots Skandia’s foundation “Ideas for life”.
level. The intention of mediation is to transform the conflict before Peer mediation in schools is a form of conflict resolution were
it escalates any further. the students themselves learn to handle and resolve their conflicts
in a way that encourages recognition, empowerment and belief
3. Confidentially – Confidentiality has to be observed before, during in themselves and others. The mission of peer mediation is to
and after mediation. Nothing said during a mediation session transform schools into safer, more caring, and more effective
should be used against a party outside the mediation process. institutions for learning.
Confidentiality is also a tool for creating an open, trusting and In peer mediation a peer helps the parties to talk and listen to
honest environment. The exception being when the law demands each other and hopefully also to better understand each other. A
a notification to the social service if there is a risk that a youth is peer mediator is a neutral, objective and non-judgemental third
at danger. party that provides a forum for the parties in conflict to have a
structured conversation. In schools peer mediators always work
4. Facilitatively – In accordance with Nils Christie’s thoughts, in pairs, both in order to help each other and for the comfort of the
the mediator should be a layman, a peer to the parties and not parties participating in mediation – to ensure that both (all) the
a professional. The mediator’s roll is to be a facilitator. The parties have a peer supporting them there.
mediator should not offer solutions, evaluate or give judgements.
The mediator should be neutral and unbiased, leading the process The purpose of the project has been to:
and not the result.

5. Restoratively – The transformative aspect of mediation has a • the

transform the working environment for everyone in the schools – for
better;
restorative effect. Mediation should be focused on the relation
between the parties and not the issue.
• change; and eliminate bullying at schools and to help bullies to
to prevent

• cost-efficient
to be a fast and cost-efficient conflict management program –
not only in terms of money, but also in feelings and
Funding is always an important question when it comes to this needs as well;
kind of work. Who finances the programme will always have an
effect on the work carried out. In Norrbotten, fortunately there
• to teach students and everyone else what feelings are and how they
can be handled;
could be arranged a joint funding collaboration between all the
parties who had an interest in launching a peer mediation project.
• to teach the students how to solve conflicts themselves without
having to resort to violence;
• how to distinguish between a person and his/her actions.

Peer Mediation in Norrbotten has been financed by: Through the work with mediation young people are encouraged
to take charge of their own problems and not to let the grownups
• the County Administrative Board in Norrbotten; in the school “steal” their conflicts. The aim is to help students
• the County
the Health Board in Norrbotten; and teachers see conflicts in a new and more positive way. It is
• Luleå TechnicalofUniversity;
Association Local Authorities in Norrbotten; strived to teach students, teachers and others the skills to resolve
• the 14 Municipalities of Northern Sweden. conflicts peacefully and educate the community in a new way to
• perceive, handle and resolve conflicts. Students, teachers and
others are provided with the knowledge, experience and the

74 ////////////////////////////////// +++++++++++++++++++ 75
materials necessary to integrate a new way of conflict resolution into their professional practices, The system of schools in Norrbotten has undergone major
their curricula, and their personal lives. changes in recent times, the number of schools decreasing from
310 to 179. This has restricted the possibilities of fully implementing
2.3.3 Training peer mediation in the county. One of the positive outcomes of the
implementation of peer mediation has been that although the
Training everybody at the individual schools has been a very important part of the work. The school number of conflicts has been constant, the types of conflicts have
management is provided, through several meetings and written information, with a good foundation for changed. They are not as severe as before, due to the fact that
deciding on whether they would like to implement peer mediation in their school. It is also arranged they are spotted much earlier on and the attitude towards conflicts
follow-up meetings several times a year. For our work it has been important to train all of the school has also changed. Since the conflicts are spotted much earlier,
staff, and not only the teachers. The cleaning staff, the canteen staff, the caretakers, etc. are also there is also much less bullying. Even if bullying does occur,
invited, since they meet the students in different situations and at different times than the teachers some schools have achieved very good results through mediation.
do. They see the students in a different light, and the students see them so too, mainly because the Another positive aspect of the project has been the really good
students are not in a position depending on them. cooperation with victim offender mediation services that evolved
parallel to the programme. And finally, the schools feel that the
school staff has now got more time to deal with activities other
than conflict resolution.
Duration and frequency of trainings We believe that peer mediation is a peace movement at grass-
roots level!
Whole school ½-2 days
Mediator coordinators 3×2 days References
All students 1 day
Peer Mediators 1 day + 15 h • Christie, N. (1977) Conflicts as Property. British Journal of Criminology, vol.
17, no. 1: 1–15.
Peer mediator meetings 1/two weeks • Marklund, L. (2007) Skolmedling i teori och praktik. Uppsala Universitet
ISBN978-91-5 6-1942-3
Networking conferences 2/year

Principals, school leaders

and politicians of the 2-4 times a year
municipalities

The trainings at the schools are arranged in collaboration with the school so that it adheres to their needs.

2.3.4 Conclusions and consequences

Since the start of the peer mediation programme two reports have been prepared within the framework
of the programme, and one licentiate thesis as well as three independent research reports have been
put together. These include both surveys and interviews. One of the results of the project is that peer
mediators say that they understand so much more about their school community and that they are
now able to help if they notice that someone is always on his/her own or if two pupils are having a
dispute. The mediation coordinators say they feel more confident about handling conflicts and that
the number of conflicts has decreased. Peer mediators have acquired a higher self esteem and have
developed a greater respect towards other individuals.
Parents were initially sceptical since problem solving traditionally lies with the grownups. But
after further information and work at the different schools they has come to see that in fact it is a
way for the schools to assume their responsibility in teaching youngsters good conflict-solving skills
and democratic values. The difficulty of convincing teachers to let go of the conflicts has been one
of the major problems while implementing peer mediation. Time as well as explaining the way peer
mediation works has helped us a lot in overcoming this obstacle.

76 ////////////////////////////////// +++++++++++++++++++ 77
 reform process and at creating the socio-juridical institutions
mentioned by the convention in Article 40, paragraph 3b enabling
Prof. Dr. Doina Balahur the resolution of conflicts in which children are involved “without
Alexandru Ioan Cuza University of Iasi (Romania) resorting to judicial procedures”.
Contact +++ doinabalahur@[Link], dbalahur@[Link] Victim offender mediation experiments complemented the
alternative conflict resolution practices initiated in the year 2000 by

2.4
the Commerce and Industry Association in Romania in commercial
and civil cases. For this purpose, the Association set up a specialized
body, The Centre for the Mediation of Commercial Disputes, which,
in 2003, published the Rules on the Mediation Procedure.
Therefore, regarding the promotion of mediation in Romania, as

Restorative Justice in other European states, initiatives of civil society and academic
circles held a primary role. The legislation concerning this

and Re-integrative alternative strategy for conflict resolution had done nothing more
than to legitimize an informal practice developed by different private

Self-esteem: agencies within the framework of different experimental projects.

“The law of mediation, as I was recently stressing upon, is not

Romanian Good Practice an exception to the observation according to which the reform
of the justice system was promoted as a result of the pressure
of the civil society and international obligations. It legitimated
the existing informal practices that were developed by non-
governmental organizations. This normative act also represented
2.4.1 Developments in restorative justice in Romania an answer to the requirements of European integration that imposed
an improvement in the quality of the justice system, especially
The implementation of restorative justice practices in Romania through better case management, by reducing the number of files,
followed, in general lines, the directions that we find in most EU as well as by adopting alternative conflict resolution strategies.”
member states. This situation is not random; the harmonization with (Balahur 2007)
the communitarian acquis was an integral part of the negotiation Alternative practices for conflict
process for the country’s accession to the EU. In the context of this resolution could contribute to
process, the regulation of alternative strategies was an obligation 2.4.2 The legislative framework for the implementation of solving the problem of the ex-
that Romania assumed within the justice system reform and within alternative justice programmes in Romania cessive caseload of courts. The
the implementation of the EU standards of Justice, Freedom and statistical data show the con-
Security (the third communitarian axis). The reform of the justice system in Romania assumed, as an stant growth in the number of
As in other European states, in Romania, the practice of alternative essential requirement in the process of harmonization with files solved on a yearly basis by
conflict resolution was implemented within the juvenile justice European practices in the field, the elaboration of a legislative judges. If in 1990, 1.513 judges
system reform process, by means of experimental projects. The framework that was adequate for the implementation of alternative solved 589.660 civil and penal
initial intention was that victim offender mediation was going to conflict resolution practices. files, the average being 390 files
complement the framework of alternative institutions (probation) Starting with the year 2000 violence against children and women per judge, in 2003, 3.557 judges
developed by the project financed by the British department for has become a priority problem within the wider process of reforming solved 1.453.776 files, which
international development during the period between 1998 and the social care system and the protection of children’s rights (Balahur means, on an average, 409 files
2004. The objective of the institution of probation was to increase 2008). With this background, Act 217 of 2003 on the Prevention and per judge. With such an exces-
the flexibility of the sanction system applied to children in conflict the Fight against Domestic Violence was adopted. The philosophy sive caseload, the efficiency of
with the penal law, to reduce their contact with the criminal justice on which this normative act is founded aims at following restorative the Romanian justice system
system and to facilitate their reintegration with the community strategies both for solving family conflicts and for their prevention was one of weakest in Europe,
(Balahur 2007, 2009). During a six-year period, this project (among husband and wife, among parents and children). In chapter resulting in close surveillance by
contributed to the reform of the juvenile justice system in Romania V of the Act 217 of 2003 (secs. 19–22), the possibility of mediation in the European Commission.
by implementing the UN Convention’s standards concerning cases of domestic violence is regulated. The mediation process can
children’s rights. Also within its framework, in the period between be accomplished either by the Family Council, or by an authorized
2002 and 2004, the first experiments with victim offender mediation mediator. By transferring the competence of solving the conflict to the
were carried out. They aimed at deepening the juvenile justice Family Council, this normative act opens the possibility of implementing

78 ////////////////////////////////// +++++++++++++++++++ 79
 some practices with a marked restorative character which are close, stipulated the possibility of both public and private organisations as well as private persons – so authorized
in many ways, to family group conferencing. The Family Council is by law – to carry out mediation. The adopted act (Act 192 of 2006) modified this rule. According to Section
defined, in Section 21, as a non-governmental association without 22, mediators can carry out their activities in associations based on agreements of cooperation or under
juridical status and constituted of the family members who have full the aegis of non-governmental organizations. As a consequence, in Romania, mediation is possible only
juridical capacity. The initiative to carry out counselling through the within private arrangements. The mediators’ activity is coordinated by a National Council with nine members
Family Council can be made by one of the members of the family in who are all elected for a period of two years. The Council started its activity in August 2007 and initiated
question, or by the family care social worker. the process of accreditation in October, 2007. This legal framework generated a quasi court system which,
Unfortunately, these provisions of the act are not applied. As as I have already observed elsewhere (Balahur 2007), is a minimalist approach to restorative justice.
the statistical data of the competent authorities show, the parties Presently, in Romania, the practice of alternative conflict resolution – mainly in the form of mediation and
involved in domestic violence continue to turn to the courts instead. based less on the real strategies of restorative justice – is still in its primary phases. As a consequence,
A great diversity of initiatives developed within the framework beyond some rhetoric, no systematic evaluation has been carried out regarding its efficiency and effects.
of criminal justice have become associated with the values and The implementation of restorative justice practices has been developed within the frame of different
principles of restorative justice because of their contribution to projects promoted mainly by alternative research and organisations of civil society.
the recovery of victims of crimes and the reparation of the material
damage caused by antisocial behaviour. In Romania, the typical 2.4.3 Re-integrative self-esteem: theoretical background
example for this situation is given by the practice generated by Act
211 of 2004 on the Protection of the Victims of Crimes. The activity [Link] Restorative justice and re-integrative mechanisms
of assistance and psychological counselling of the victims of crimes, The last two decades witnessed the worldwide growth of restorative justice practices. From an initial
including the victims of trafficking, became the competence of the stage when RJ dealt with petty crimes committed by children and young people, nowadays, RJ practices
probation services. The mentioned law came into effect on 1 January are implemented in relation to violent crimes and even in the case of large scale violent conflicts.
2005, creating the basis for setting up and for the operation of a In the small scale experiment described below we chose to use restorative practices (restorative
unified structure offering assistance to the victims of crimes and at circles mainly) in order to re-mould the social and psychological environment in some educational
the same time supporting social reintegration programmes for the settings so as to curb and prevent violence and bullying in two vocational high schools.
persons who have committed criminal deeds. The statistical data Our method of restorative justice was determined by the fact that lenient means of controlling children’s
provided by the specialized department from the Ministry of Justice and young people’s violence had a better and deeper effect on the long term, as also evidenced by various
however show that in practice, the number of victims that have empirical analyses (Walgrave 2002; Bazemore and Schiff 2005; Bailleau and Cartuyvels 2007; Littlechild 2007).
requested psychological and juridical assistance remains, still, low. John Braithwaite’s influential theory on re-integrative shaming has so far provided an interpretative
Mediation as an alternative conflict resolution strategy for civil, framework for restorative justice. According to Braithwaite “shaming […] is a means of making citizens
commercial, family and penal conflicts was regulated by Act 192 actively responsible, of informing them of how justifiably resentful their fellow citizens are toward
of 2006 on Mediation and the Activity of Mediators. It was adopted, criminal behaviour which harms them” (Braithwaite 1989: 12).
with many difficulties, and was closely monitored by the European Braithwaite considers that there are at least two kinds of shame. One that is identical with stigmatization
Commission in the context of the reform of the justice system and a different one that supports people in conflict with criminal law to re-integrate into the community.
in Romania, which included, among others, the reduction of the Only “re-integrative shaming controls crime; stigmatization pushes offenders toward criminal subculture.
overloaded role of courts, the harmonization of Romanian law to [...] Shaming is the most potent weapon of social control unless it shades into stigmatization” states
European standards and rules in the field of alternative conflict Braithwaite (Braithwaite 1989: 13–14).
resolution (hereinafter ADR) and the reduction of corruption. Some of the overviews of the re-integrative shaming theory tried to identify the “generative mechanisms”
According to this normative act, “mediation is an optional that “might produce an observed association” between RJ procedures and the subsequent “restoration” of
arrangement of informal conflict resolution carried out with the support the victim, the offender or the community (Bottoms 2003: 93). In line with this testing of the validity of the
of a third person called the mediator, and conducted respecting the theory, we have observed that even if Braithwaite considers that re-integrative shaming is more appropriate
principles of neutrality, impartiality and confidentiality.” Both physical for communitarian societies he nevertheless uses shaming in a uniform sense, identical over cultures and
and legal entities can decide on resolving a conflict by way of mediation, places. In the meantime one should notice that “shaming”, even in its positive form, is not unproblematic,
even if a trial has already been started, but before any final sentence being sometimes associated with humiliation, and therefore with criminal subculture. In his later analysis on
has been given. Section 6 from Act 192 of 2006 imposes on the judiciary “shaming” Braithwaite prefers to speak about “shame-guilt” emphasizing the aspects of taking responsibility
and arbitrary organs an obligation to inform and advise the parties on for wrongdoings and apologizing to the victim as important mechanisms of the restorative process. Only this
the possibility of referring the conflict to an authorized mediator. The type of shame can be perceived as constructive shame. As observed by Nussbaum, only this type of shame
types of conflicts that can be referred to mediation, according to the can lead to change through critical self-evaluation (Nussbaum 2004: 241).
stipulations of legislation currently in force are of civil, commercial, Shame, even in its positive, constructive form, has important cultural connotations meaning different
family and penal nature. The right to legal assistance and translation (if concepts in different cultural contexts. In our research with children and young people in conflict with the
necessary) must be ensured during the whole procedure of mediation. criminal law (in Romania) we have noticed that the motivation for change and desistance from crime is
The draft on mediation law submitted to the Romanian Parliament more complex and is not (only) connected with the shaming experience. At the same time, our research

80 ////////////////////////////////// +++++++++++++++++++ 81
on children’s life style has shown that shame does not play an important mechanism regulating morals A concrete example
and behaviour anymore. These conclusions are in line with similar empirical studies on children and Our Research Centre for Social Management and Community
young people’s values and life style. Development was asked by the local educational board to help them
Based on these observations and outcomes, in the experiment carried out in order to re-mould the solve a situation they had been confronted with for over three years and
psycho-social environment in two vocational high schools burdened with violence, we have added some which threatened to become “normal” in two vocational high schools
complementary dimensions aiming at making our intervention strategy more efficient both on a short in the county of Suceava. The two high schools were confronted with a
term and on the long run. massive fluctuation of teachers due to the violence and bullying going
We considered that the triad dignity–self-efficacy–self-esteem provides an important source of on among pupils. The teachers appreciated that their physical integrity
desistance from delinquent behaviour and violence as well as for the re-building of the educational and mental health were in danger and after two weeks of permanent
milieu. Dignity understood as a complex relationship based on the reciprocal recognition and respect incidents with the pupils, they all resigned and two classes remained
of the rights and obligations of both pupils and teachers could be reinforced through the development without teachers. This was the moment the local educational body
of self-efficacy and self-esteem. asked for our advice.
Dignity remains an empty, abstract expectation as long as it is not built on self-efficacy and self- In our later dialogues and interviews with some of the pupils in
esteem. In our research strategy we took into consideration and checked with the students, if and the two schools, we learned that it was sort of a competition among
how they enjoy the rights regulated by UN Convention on the Rights of the Child. In our preliminary the two schools on which is more successful in “convincing” the
meetings with the pupils involved in the research we paid special attention to the right of participation teachers to leave. A 17-year-old boy said, that because learning
(Art. 12 of UN Convention on the Rights of the Child 1989) in school and classroom decisions. The was the “last thing in the world” that was happening during their
outcomes of the dialogue and interviews we took revealed that for the 50 boys in our sample the idea classes and in their high school, “the main aim of our intimidating
of having rights and of exercising them were totally new. actions was for the teachers to leave”.
Within the economy of our research self-efficacy is understood as the interface between individual
and the group (or micro-social structures) and it means, after Bandura, the person’s belief about his/ Sample description
her “capability to produce designated levels of performance that exercise influence over the events Our research integrated two groups of pupils from the two voca-
that affect their lives” (Bandura 1994: 71). tional high schools (from the county of Suceava, the total sample
We based our exploratory research on the hypothesis that the main sources of violence and aggressive included 50 boys). Among them:
behaviour are associated with the above mentioned concepts. The continuous experience of humiliation,
pain and oppression experienced by most of the individuals in our exploratory research both in the • 3510 had one unemployed parent;
family and at school contributed to the development and reinforcement of violent-aggressive patterns • 5 had both
had both parents working abroad;
of behaviour as every day life strategies (reactions) of survival. • 20 were underparents unemployed;
Among the sources of creating and strengthening self-efficacy Bandura emphasizes the importance
of role models, the family and the school. For the purposes and objectives of our research we chose
• probation.

the role models and the school. Research strategy and research plan
In our model of analysis self-esteem complements self-efficacy. It represents the other side of Our research was designed to be carried out over a period of two
the coin, that is, the social reaction/answer that the activity of an individual “counted as a worthwhile years. In the first year, 4 programmes were implemented:
contribution to society” (Honneth 1995: 129).
1. Within the framework of the role models programme 50 pupils
[Link] Brief description of the research from the two vocational high schools (after a one month period
The aims and objectives of the research were to develop and implement a strategy able to curb and of training with the researchers in the research), were moved for
prevent – in the short term and on the long run – the violence and aggression in schools and to re- one semester, upon request, to the corresponding classes of two
mould the psycho-sociological climate in order to promote studying and education. In the meantime, other high schools who acted as host schools in our research.
we aimed at gathering empirical evidence on how a restorative approach could contribute to the The host schools were ones recognized for the good performance
rebuilding of the social bonds even if they have been seriously affected by hate, humiliation and pain. of their pupils as well as for the programmes they organized
for pupils and their pleasant environment. Joint cultural and
The operational objectives of the research sport activities were carried out every weekend at one of the
• Contributing to the development of the
pupils’ self-efficacy and self-esteem.
four schools involved in the role model programme.

• Contributing to the better observance of the rights of the 2. The conflict-free school programme was aimed at familiarizing
children in educational settings/schools. the pupils and teachers in the two vocational high schools with
• Raising awareness of both the teachers and the pupils on the role
restorative practices can play in conflict resolution and prevention.
restorative justice practices. The participants of this programme
were trained on how to organize and run restorative circles and
• Training both the pupils and the teachers on
how to set up and run a restorative circle.
how to use them both for solving as well as for preventing the

82 ////////////////////////////////// +++++++++++++++++++ 83
 potential conflicts and any other problematic issues.
conflicts and other problematic issues that could appear in
everyday life of a class or school. At request, this programme
• The practice of running restorative circles became part of the
organizational strategy and culture of prevention and conflict
was extended to the teachers and pupils of the two host schools resolution both for the pupils and the teachers.
involved in our research. • The former leaders of the violent events became leaders of the
change. They became the core group of promoters of the values
3. The programme called “My ideal school” was carried out mainly and practices of a school that is “free of violence” and “green”.
at the initiative of the 50 pupils moved to the host schools in our
research. From the feedback we had from the first programme,
• Our final evaluative interviews with the 50 pupils involved in
our research registered an important change in their attitudes
the pupils appreciated that if their vocational schools looked towards school, teachers and peers. All the 50 pupils also had
“more like the other ones, clean and very well maintained by a personal project which included graduating from high school
the pupils, with green areas and flowers, sports areas etc., and then either finding a job or getting a university degree.
the environment would become more friendly and favourable They mentioned that for them it was really illuminating that
for learning” (opinion of a 16-year-old boy). The pupils in the their relationships with each other and with school staff could
research appreciated that in order to be able to host cultural and completely change if they restored the observance of rights and
sports activities at their school, the image of the school had to obligations (i.e. dignity) and if, instead of violence, cooperation
be improved. With limited financial support and mostly voluntary and restorative practices were relied on.
work, the 50 pupils (and later other 30) built the first green area
of the school. Then, they continued with the inner environment
• In terms of self-efficacy and self-esteem the pupils declared
that before being part of this research they used to consider
of the school and again with minimal financial support they themselves as “nothing” (a 16 year old girl) but in the end they all
managed to repaint the walls of three classes. had a strong desire to prove that they could become “someone”
and abandon violence and unlawful behaviour.
4. Children’s rights was the fourth programme implemented in • The fluctuation of the teachers as a mass phenomenon stopped.
the two vocational high schools. It consisted of providing training
for both the 50 pupils and the teachers on the UN Convention on
• The educational performance of the pupils involved in the
research became better. Absenteeism also decreased and
the Rights of the Child as well as in setting up councils of pupils ceased being the “usual practice” for the pupils involved in the
and teachers (with representatives of parents) where the main research. A positive impact was registered for all the pupils
decisions affecting the pupils were taken. participating in the third cycle.

In the second year all the four programmes were running as part
• The practice of the councils of pupils and teachers also became
part of the organizational culture and practices which contributed
of the normal activities of the schools and were only supervised to the better observance of children’s rights and to their
very generally by the research team. participation in the decisions that could affect them.

Evaluation and outcomes

• The activities carried out within the project had a multiplying effect.
At the request of the local educational authorities, training sessions
The final evaluation of the research project demonstrated important on restorative justice practices were organized for the pupils and
changes and positive outcomes. Among them we briefly enumerate teachers in five other high schools in the county of Suceava.
the most important ones below.
2.4.4 Conclusions
• At the end of our two year research the violent events (conflicts)
in the two vocational high schools dropped by 50%. They appeared The outcome of the research project showed that it is possible to
mainly in the classrooms with pupils coming from other schools. eliminate violence in schools if appropriate strategies and practices
The violent incidents dropped down in both schools involved in the are implemented and if both the pupils and teachers are involved
research and not only in the classes integrated in the research. in the process of change.
The final evaluation demonstrated that even the pupils who were Our exploratory research demonstrated that restorative justice
not involved in the research developed a sort of pride that their practices could contribute to re-moulding the organizational culture
schools became “important’” and was known not only for the and values and to re-building the social bonds among pupils and
“bad things that are happening there” (18-year-old girl) but also among them and teachers.
for their constructive initiative. The effects of restorative practices and their impact on preventing and
• The pupils trained in restorative practices (restorative circles)
became in their turn trainers to other pupils, so that restorative
curbing violence are considerably improved when they are associated
with approaches aiming at re-building dignity, self-efficacy and self-
practices became the normal way of dealing with conflicts, esteem of the pupils and in a wider sense of victims and offenders.

84 ////////////////////////////////// +++++++++++++++++++ 85
References

• Balahur, D. (2009) Le système Roumain de la justice des mineurs entre valeurs welfare et inflexions néo liberals. Revue
Deviance et societé, vol. 33, no. 3: 315–333.
• Balahur, D. (2007) Restorative justice: an evaluative analysis. In: D. Balahur, B. Littlechild and R. Smith Restorative
Justice Developments in Romania and Great Britain. Sociological-juridical enquiries and applied studies of social work.
Iasi: Al. I. Cuza University Press: 21–75.
• Bailleau, F. and Y. Cartuyvels (2007) La justice pénale des mineurs en Europe. Entre modèle Welfare et inflexion néo-
libérales. Paris: L’Harmattan, Coll. Déviance et Société
• Bandura, A. (1994) Self-efficacy. In: V. S. Ramachaudran (ed.) Encyclopedia of human behavior, vol. 4, New York: New
York Academic Press: 71–78.
• Bazemore, G. and M. Schiff (2005) Juvenile justice reform and restorative justice. Building theory and policy from
practice. Portland (OR): Willan Publishing.
• Bottoms, A. (2003) Some Sociological Reflections on Restorative Justice. In: A. von Hirsch, J. Roberts, A. Bottoms, K.
Roach and M. Schiff (eds.) Restorative Justice and Criminal Justice: Competing or Reconcilable Paradigms? Oxford: Borbála Ivány
Hart Publishing Ministry of Justice and Law Enforcement (Hungary)
• Braithwaite, J. (2002) Restorative Justice and Responsive Regulations. Oxford: Oxford University Press Contact +++ [Link]@[Link]
• Braithwaite, J. (1989) Crime, Shame and Reintegration. Cambridge: Cambridge University Press
• Honneth, A. (1995) The Struggle for Recognition. Cambridge: Polity Press: 129.
• Littlechild, B. (2007) Restorative justice – current formulations, advantages and criticism in England and Wales. In:
D. Balahur, B. Littlechild and R. Smith Restorative Justice Developments in Romania and Great Britain. Sociological-
juridical enquiries and applied studies of social work. Iasi: Al. I. Cuza University Press: 193–212.

2.5
• Nussbaum, M. (2004) Hiding from Humanity. Princeton (NJ): Princeton University Press
• Walgrave, L. (ed.) (2002) Restorative Justice and the Law. Cullompton (UK): Willan Publishing

Documents

• United Nations – Committee on the Rights of the Child, Resolution no. 44/25 (20 November 1989) Convention on the
Rights of the Child ([Link]/Depts/dhl/res/[Link]) Resolving School Conflicts: “Safe
School” Initiatives in Hungary
2.5.1 Introduction

In the Hungarian Ministry of Justice and Law Enforcement, in

addition to drafting and giving opinions on laws, there is an
opportunity in accordance with the spirit of public administration
as a service provider and as a promoter of innovation, to carry out
activities that are still relatively uncommon in Hungary: issuing
calls for proposals and managing the implementation of local
programmes.
It is an important part of the job that through the coordination
and the monitoring of the programmes we use the results and the
practice of the best pilot programmes to improve the justice system,
the social services, the prison system and the education system and
to ensure that the individual activities conform to the ideal model.
Thanks to our special position, as opposed to most observers, we have
an insight into social developments, the concrete events of practice
and therefore into school violence and safety issues (although
we do not have the possibility of analysing these data in depth).

86 ////////////////////////////////// +++++++++++++++++++ 87
 2.5.2 The emergence of violence in Hungarian schools become publicly known. On the basis of these cases, the citizens rightfully believed that children had
suddenly become particularly violent when the truth was that the frequency of such incidents had
According to relevant literature of the field, violence between been constant. According to the relevant studies (such as the report entitled “Health Behaviour of
children is not exclusive to the 21st century. However, in Hungary, School-aged Children”)5 and latency surveys, the number of cases of violence has not grown over the
school violence only came into the centre of attention in 2008. past few years, and the results of the studies suggest that the frequency of such cases in Hungary is
In a central, partly ghettoised district of Budapest, a 9th grader typically below or at the level of the European average. According to criminal statistics, the level of
threatened a teacher with a tap and imitated kicking movements child and juvenile crime has been stagnant lately (however, the size of the age group has become a
against the teacher. A classmate recorded the scene with a mobile bit smaller). Nevertheless, some data taken in 2008 should be mentioned here. According to these,
phone, uploaded the video to a video sharing site, and television children below the age of 14 (especially 13-year-olds) became victims of violent crimes or disorderly
channels found the video.4 The media called the incident “teacher conduct much more often than previously. However, as minor crimes very often go unreported, as the
beating”. It is true that the student threatened the physics teacher, institutional background is inappropriate and as presumably there have been more reported crimes
but the video did not show any physical harm being done. It was, and law enforcement agencies have paid more attention6 due to the public scrutiny, it is questionable
however, discovered in the court procedure that one of the kicks whether the crime rates have actually grown. It is possible that the active public attention and personal
actually hit the teacher (this did not appear on the video). It is sensitivity as a consequence “contributed” to the growth of school violence in the statistics.
clear that the event must have been humiliating for the teacher, In conclusion: a year ago, things started to change. Dialogues and debates began. What was
regardless of the classification of the event under criminal law accomplished?
and of whether there was physical contact. We must take these
events into account, regardless of the fact that there was no actual 2.5.3 Proposed solutions
beating and that the media later learnt that the teacher had not been
particularly fair to his class and that there had been a number of After the brief description of the current situation, I present the initiatives made and accepted in
serious conflicts between the class and the teacher. Therefore both the interest of improving school safety and in order to resolve conflicts at the levels and with the
this particular case and the more and more general and more and assistance of the state, local governments, schools and NGOs. I will focus on those initiatives and
more public phenomenon of school violence must be dealt with. practices that are in line with the National Strategy for Community Crime Prevention (2003), which
The media has covered a number of similar cases. The public’s is the main document containing guidelines on crime prevention measures in Hungary. Therefore, in
reactions were quite extreme. Although the Internet sites’ spite of the negative tendencies, I still support complex interventions of youth policy that are built on
comments should not be considered a representative survey, it crime prevention experience (as recommended by the crime prevention strategy), and reject measures
can be concluded that the large majority of those expressing their that are founded on ideas of repression and segregation.
opinions believed that the minimum measure should be that all In this part, I will present good practices and positive examples that actually work; and I will
aggressive pupils are expelled. A lot of the Internet comments not mention – as I do not consider them suitable for reaching the goals specified in the strategy –
4
See at [Link] showed discriminatory and stigmatising attitudes according to attempts like installing security cameras in schools, introducing stricter criminal law regulations or
vz0TBz2n98andandfeature=related.
which school violence is an ethnic issue. The opinions of politicians rearranging communities.
5
See at [Link] and experts were mixed. One of the most influential trade unions
[Link]
of teachers demanded stronger protection for teachers, even [Link] Government reactions
6
See the report on the criminal situation and protection under criminal law and asked the legislators to make it The measures of the Ministry of Education
the measures implemented earlier at http://
[Link]/[Link]?pid=1719.
easier for schools to expel pupils. Many politicians backed these It is an important result that the government took immediate steps in the particular case. The Ministry
demands. For instance, in the “teacher beating” case, the mayor of Education established the “School Safety Commission”. Its members included educational experts,
7
The members of the child protection
early warning system are - under Section
declared that the student threatening the physics teacher would teachers, representatives of parents’ organisations and ministry officials from the affected ministries.
17 of Act XXXI of 1997 on the Protection not be granted admission to any school in the district. As opposed Crime prevention officials also joined the commission.
of Children and on the Administration of
Guardianship – health service providers (the
to these solutions, the Ministry of Education (the main organ of According to the commission’s Statement of position (2008), the professionals, the parents and the
school nurse service, general practitioners, professional leadership) chose real solutions to the problem, that students have shared responsibility for the emergence of violence in schools, and they can only solve
paediatricians etc.), family support services,
institutions of public education (schools,
is, solutions focusing on integration. it through joint efforts. The statement established that the laws governing the operation of schools
education counsellors etc.), the police, Unfortunately, it is typical that school violence only became an are appropriate, but they need to be enforced and given real content for effective implementation.
public prosecutors, courts, and the services
of the Office of Justice (such as the probation
issue of public debate when a video showing evidence had been Coordinated efforts are needed, and for this purpose schools must be more open to external initiatives.
service or the victim helper service), broadcasted on the Internet. It is even more unfortunate that cases For instance, they must accept and promote the role of the child protection early warning system’s7
refugee authorities and organisations, non-
governmental organisations and churches.
of violence between students and cases that are well-known by members in schools and they must cooperate with parents and NGOs.
The members of the child protection early professionals but never received publicity were not enough for the The majority of the commission members were convinced that only educational measures will offer
warning system must notify child welfare
agencies if a child is in danger. These
profession to start some form of serious debate over the problem. a real solution. The commission made a number of specific recommendations. I will discuss those
persons and organisations must cooperate Debate only started and solutions were only demanded after that are relevant from the aspect of crime prevention, that is, those proposed measures that may
and inform each other for the purpose
of preventing and eliminating dangers to
a public outcry. And, of course, only the serious cases received help reduce and handle violent cases, even on a short term. The commission suggested collecting
children. publicity, albeit in increased numbers after the phenomenon had good practices, enhancing the school’s child protection and education functions and developing a

88 ////////////////////////////////// +++++++++++++++++++ 89
professional cooperation with a psychologist. The commission supported the integration of education is the National Strategy for Community Crime Prevention adopted by
institutions and the improvement of cooperation between such institutions. The commission considered Parliament in 2003. One of the prioritised goals of this strategy is the
it indispensable to enhance the role of student self-governments and community forums as decision- prevention/reduction of juvenile crime.
making forums for students. Organising sport and art events is also a great method for preventing The strategy and its annual action plans in general call for training
violence. The commission also emphasised that conflict prevention and violence reduction procedures on non-violent forms of dispute resolution, the implementation of
must become daily practices and therefore it recommended the organising of individual programmes restorative methods and the strengthening of tolerance in order to
for spreading conflict management techniques and practices in Hungary. handle violent cases and especially to fight the children’s aggressive
On the commission’s recommendation, the Ministry of Education started the Safe School Movement behaviour. Although the 2003 strategy was adopted before the well-
with one of its subordinate organs in control. Within the framework of the movement, elementary and publicized cases of school violence, it stressed the importance of
secondary schools could submit proposals and win funds when they presented good practices for the allowing violent youth to face the consequences of their actions and to
prevention of violence. Regional conferences were organised and participants heard presentations improve their sense of moral responsibility. The annual action plans
on good practices and were shown award-winning proposals. A helpline was set up to give advice and describing crime prevention tasks for each year specifically require
help to students and parents. The Ministry of Education succeeded in reallocating resources to fund
the establishment and expansion of a network of school psychologists in micro-regions. A law was • the adoption of measures to prevent violence in and near schools,
amended to allow students, parents, teachers and other affected persons to participate in the conflict
management procedure or in the therapy conducted by school psychologists.
• peer help programmes to overcome the children’s integration
problems,
The most significant project that produced results immediately was a three-year programme that was • the application of mediation and restorative schemes,
aimed at spreading alternative conflict resolution in vocational schools, the most disadvantaged section
of the education. The programme was managed from a professional aspect by the Education Mediation
• dissemination of leisure and joint parent-children projects.

Service (Oktatásügyi Közvetítői Szolgálat); this organisation has been providing free mediation services In spite of the emergence of school violence, the national crime
for five years to those who want to settle school conflicts amicably, through mediation. The goals of prevention organs did not change their opinion and continued to
the programme were the following: suggest that school violence may be best prevented through a
constantly developed and more professional child protection early
• to improve the relationship between schools and parents in
vocational schools (the target group of the programme);
warning system, through the involvement of schools in the operation
of the network and through their enhanced role in case conferences
• to reduce the level of violence through restorative procedures; and discussions. Recommendations were made to organise open
• to help disadvantaged students integrate in the school; schools, that is, to make them operate through a partner network,
• to improve communication between schools and their environment. to be receptive to bottom-up (parents’ and NGOs’) initiatives and to
support and help arranging these. It is vital for persons and entities in
As a direct service, the parties in dispute were given an opportunity to participate in a mediation the field of education to have access to assistance and professionals,
procedure. Also, they were given training on techniques that the teachers and students could use on a they should have someone organising extracurricular activities, as
daily basis. The project targeted the most deprived regions and offered direct and local services there. well as a psychologist and a social worker available in the institution.
The programme was promising and seemed to have an actual and positive content. Unfortunately, it The tasks specified in the action plans may be carried out by
halted and took a different direction.8 It would be advisable to return to the implementation of the original organising model projects funded through calls for proposals. I
targets instead of just scratching the surface by organising conferences, giving titles etc., which, of course, will discuss one later, among the NGO initiatives. I will present the
bring more public attention and more short-term results, but these developments are not permanent. programme of an NGO because the schools and education institutions
The Ministry of Education must take action through a national programme and provide direct in general rarely deliver projects, while the model programmes
services to make schools safer, especially with regard to the bottom-up initiatives that have been implemented by NGOs can be applied in school practice effectively.
made recently. The government should provide tangible and accessible services which can be used This description shows that the Ministry of Education’s and the
in everyday school life directly to the persons and entities involved in education. An actual solution Ministry of Justice and Law Enforcement’s efforts have shared goals. As
will only come if the institutional culture changes and the organisation as a whole (from the janitor a result, a knowledge base has been developed over the past years on
to the principal), including the children in particular, can be motivated to create an open, tolerant, the basis of which real progress can be made. A number of institutions
peaceful and positive atmosphere, for instance by implementing the principles and directions originally and institutes have made recommendations with a similar content to
defined by the School Safety Commission and supplemented by a large number of organisations and tackle school violence. This means that the attitude of the profession is 8
The programme was downgraded to a
simple multi-level training given to teachers
groups since then. Change can only be made through local, customised and complex services and consistent. Nevertheless, no comprehensive action seems to have been who applied individually. It was integrated
not through trainings and conferences organised for those who are already open to this approach. taken; we have only seen fragmented measures that only scratch at the into school life much less; therefore I believe
it is much less effective. There are a lot of
surface of the issue. This is probably because the different persons and different opportunities to participate in
The measures of the Ministry of Justice and Law Enforcement entities do not act jointly. They make similar efforts but are isolated from trainings, but in this way the original goal
of the programme seems to have been
In the field of justice, it is primarily the crime prevention policy as a horizontal and cross-sector policy each other. It would be advisable to gather the resources and use them lost. See: [Link]
that focuses on the prevention of violence in schools. The main document governing crime prevention in one consistent direction, as results cannot be achieved otherwise. beszamolo-nszft-2009.

90 ////////////////////////////////// +++++++++++++++++++ 91
[Link] An initiative of a local government School life is dominated by a restorative attitude. The restorative 9
From the radio programme Vendég a háznál
(A guest at the house), 13 March 2009, MR1
Dominó Általános Iskola is an elementary school run by the 9th district council of Budapest. The majority approach is the foundation of the school’s organisational culture. First Radio Kossuth.
of the students failed to integrate into their environment and a lot of them have some kind of behavioural the school only solved individual cases by facilitation, but later it turned
10
An interview with Peer Krisztina in the radio
problem. For instance, some of the teenagers attending the school tend to say things like this: “When I’m out that the principle would only work if the restorative approach was programme Vendég a háznál (A guest at the
annoyed with the teachers and the other kids, I just walk out of class. I feel stressed all the time. I leave, present in daily life and became the number one guiding principle house), 13 March 2009, MR1 Radio Kossuth.
try to relax and have a smoke. […] Oh yes, violence can be a solution. I beat the kid up, and that’s that.”9 for the community. The Zöld Kakas Líceum uses the method of the
At Dominó, they introduced a complex system of education and training with the assistance of the “face-to-face” conflict resolution. The two pillars of the method are
Presley Ridge Foundation. Under this system, children relearn social skills to correct the behavioural the training of peer facilitators on the basis of their own experiences
patterns they took on earlier. The staff includes teachers, family contact persons and programme and the handling of conflicts through the method of community
coordinators who complement each other’s activities and cooperate efficiently. There is regular and conferencing. Within the framework of these methods, they organise
active contact between the school and parents. structured conversations for those involved in minor or major conflicts.
According to the report10 of a programme coordinator on the programme implemented in the school, the If rules have been broken, the “offenders”, the “victims”, their relatives,
children in the school have very specific goals regarding their school results and behaviour. “None of the friends and the affected community are all invited to the meeting. The
kids say that their goal is to be good. We try to make it more concrete and set rules like ‘I won’t leave my objective of the method, of course, is to help those affected talk over
seat during class’ and ‘I’ll use a respectful tone with my classmates’, but sometimes we are even more the effects of the damage caused and the behaviour, and to make a
specific. There is a student who spits a lot. This boy spits at everything and everyone in his environment. decision on repairing the damage and rebuilding the relationships.
Clearly, this is an act of compensation or compulsive behaviour. The hyperactive kid’s initial goal was the The community in this case has a controlling role.
following: ‘I will keep my saliva in my mouth.’ In other words, we expressed the promise not to spit in a Personal help and mentoring have a significant role in the school.
positive form with the involvement of the kid. However, it did not work. We therefore decided to change Immediately after admission, the student is given a temporary mentor,
the goal: ‘I will not spit at my mates and their stuff.’ After a seven-month struggle from September (the who will help him/her during the first month in setting the annual
beginning of the school year), we achieved a result: the boy now spits much less frequently.” learning plan. A month later, a ceremonial selection of a mentor
If the students keep their promise, they are rewarded verbally and they receive “school money” which takes place. The person selected only becomes the mentor if he/
they can spend in a special school shop. However, consequences also follow if they cannot keep their she approves. Later, the student and the mentor define behaviour,
promise. In this case, they have to make amends. The school therefore runs a system of rewards. Rewards appearance, attendance and school result goals and targets. For the
are combined with regular (positive and negative) feedback. It should be noted that the system is not purpose of achieving these goals, the students, the teachers and the
about the tangible reward, “school money”. It is rather about feedback, which means that the children professional team sign minor contracts if necessary. There can be
are given constant feedback from the teachers, from their peers and even from themselves through more than one contract in force at the same time. Each contract may be
regular evaluations. The professional staff of the school reported that the motivation and expectations violated maximum twice; a third breach results in the end of cooperation
for development have become internal motivating factors and expectations. The teachers often work between the student and the school. During the ten-year history of
with students individually and give a lot of feedback to parents. The majority of parents appreciate this. the school, it only rarely happened that the affected parties could not
come to a settlement acceptable for all of them before a third breach.
[Link] An alternative provided by an educational institution These efforts are supported by a dedicated team of well-trained
Zöld Kakas Líceum is a technical school of secondary education. It was founded over a decade ago. teachers, social workers, labour market experts, mental hygiene
It is a “second chance” school established for students who have been removed from other schools professionals and psychologists.
as “they are too much to endure for the school system”. These children were forced to leave their
earlier schools in spite of the fact that they have the skills to graduate and even to go to college. They [Link] The NGO know-how supported by
are “troubled youth”, as the school calls them. the Ministry of Justice and Law Enforcement
The dissemination of restorative methods
The financial support gained through a Ministry of Justice and Law
Enforcement calls for proposals helped spreading the methods
and philosophy of the Zöld Kakas Líceum. Under this scheme, in a
Budapest district, professionals (teachers and social workers) showing
interest were granted an opportunity to learn the “face-to-face” conflict
Picture 1 management methods.
Art club in the Zöld Kakas Líceum Picture 2
(Source: [Link]/ The logo of the “Ha bejön, akkor bejössz?
[Link]?cmd=imageviewandvar1=T (If it’s cool, will you join?)
%E9manap+2007.10.19/[Link]) – alternative programmes and Ha bejön, akkor bejössz?
conflict management methods
in practice” project

92 ////////////////////////////////// +++++++++++++++++++ 93
 We derived from the programme that the method regularly applied 2.5.4 Summary
by teachers and social workers today of finding out what their clients
need without the client and telling them what to do is, in most cases, What have we achieved over the past year? First of all, we learnt that the theoretical background is
a failure. For those affected, it may suggest that these professionals there and there are quite a few practices available. The results achieved and the directions discovered
have no effective methods available. However, restorative methods should be organised and collected systematically, and they should be analysed and evaluated in order
may bring excellent results, but for this, entire institutional to gain a realistic idea of the current situation and to set the course of future development correctly.
operations, organisations and systems need to be reformed. It is indispensable to place the emphasis on actual content. This means that the tested methods must
actually reach schools, teaching staff and children and not just in theory. The various efforts must be
Peer help for the prevention of violence coordinated to avoid parallel endeavours, and to exploit synergies for greater efficiency.
Under crime prevention policies, NGO initiatives with the purpose In addition to immediate steps to prevent school violence, the Ministry of Education must also
of reducing child and youth crime rates through social development strengthen the central competence-based teacher training, must emphasise the importance of
and through enhancing tolerance and integration were granted introducing alternative teaching methods in schools and must provide such regulatory background
support from 2004. All of the calls for proposals under this scheme that allows sport and art activities to gain an appropriate share of school programmes.
were local initiatives implemented through the partnership and Community crime prevention must continue to promote the introduction of restorative techniques
cooperation of professional organisations. A proposal for the at an institutional level and to provide services locally, that is, directly to individual institutions.
prevention of violence in and near schools was granted joint financial However, statute-based and comprehensive measures which exceed pilot projects in scope and
support from the Esztergom-based Fényközpont (Lightcenter) and promise long-term and sustainable results may only be taken if there is appropriate financial and
the Szent Jakab Foundation (Saint Jacob Foundation). moral support. It is needless to say that crime prevention policymakers are willing to participate in
The first level of the programme was peer help training. What the inter-ministerial cooperative efforts.
made the training special was that special target groups were It seems that we have departed in the right direction, but we are still stumbling a little. However,
involved, including children who are typically left out of such actual initiatives with real results must be implemented in practice without delay. Coordinated
schemes. Therefore, disadvantaged youth, children living in foster reactions by the state are indispensable for this purpose.
homes or with foster parents, and youth on probation and under
diversionary measures also participated in the work of groups in References
addition to grammar school and college students willing to help.
The other pillar of the model project was that the peer helpers • Parliamentary Resolution no. 115/2003 (X. 28.) on the National Strategy for Community Crime Prevention ([Link]
presented different types of crimes and prepared video clips on [Link]/[Link]?pid=19)
them and the related deviant patterns of behaviour. Naturally, the • “School Safety Commission” (2008) Statement of Position and Recommendation concerning violent behaviours occurring
primary objective was therapy, treatment and community-building. in the settings of educational institutions (29 April 2008) (available in Hungarian at [Link]
The kids involved in the project wrote the script and the soundtrack iab_af_080605.pdf.)
and played the parts. The films were about theft, prostitution, drug • Budapest XVIII. District Pestszentlőrinc-Pestszentimre Council – Wide Boy Child Welfare Center (Csibész Gyermekjóléti
trafficking, domestic violence and gambling. The project owner Központ) (2008) “If it is cool, will you join?” Project Report (available in Hungarian at [Link]
wrote about one of the actors: “Babunka is a 17-year-old boy. He [Link]?pid=1331)
has already been involved in various programmes, but now he is not • Saint Jacob Foundation, Esztergom (Esztergomi Szent Jakab Alapítvány) – Lightcenter (Fényközpont) (2006) “Don’t
just a participant: he is involved in the creative work. Last year, he you dare” Project Report and its „1 month 1 story“ (available in Hungarian at [Link]
hardly spoke. This year, he says things like this: ‘In my opinion…’, html?pid=262&lang=hu; [Link]
‘Watching the others, I realised...’. There is also a boy, Gergő, who
is sixteen and in sixth grade. When he joined the programme, he
made progress quickly and this was noticed by the child protection
professionals, the teachers and the parents. Although Gergő has
reading problems, he was first in his class to learn his part. He is
the most enthusiastic of all; he is always there, even when he has
no role in the scene. What is more, he started to attend school
quite regularly [...]”.11
The films and the methodological material have been used by
hundreds of professionals since 2008 in their own groups. The
feedback received suggests that the films can be used efficiently
for crime and conflict prevention purposes. The programme is
11
According to the report by the manager
of the project, Ildikó Hentes at [Link]
recognised by the European Crime Prevention Network as good
[Link]/[Link]?pid=354<=hu. practice. As a result, it could be applied in everyday school life.

94 ////////////////////////////////// +++++++++++++++++++ 95
 Concurrently with these social changes, Hungarian society started to be polarised economically and
politically, and unprecedented social problems materialised. These factors all lowered the general
level of tolerance within society and the micro- and macro-communities’ ability to endure and manage
conflicts, and they resulted in a lot of discrimination-related local tensions where the parties were
certain natural, determinable groups of local society or formal local institutions.
Decreasing “discriminatory tendencies” and mutual distrust and increasing tolerance levels in
micro- and macro-communities’ lives is a slow process. The parties need face-to-face meetings
and opportunities to communicate directly. At such occasions, tensions and scepticism can erode
swiftly, sometimes unnoticed by parties, and they can be replaced by relationships built on mutual
recognition, respect, and the parties’ joint effort to solve their issues.
Sándor Geskó Such changes should be initiated at a local level primarily, and they can only bring results within a
Konszenzus (Consensus) Foundation (Hungary) reasonable time at a local level. A network of personal relationships with a capacity to generate anti-
Contact +++ gesko@[Link] discriminatory effects directly may only be built in local communities and only such local networks can
lower the number of conflicts and the related tension to a level that allows the affected parties to develop a
mutually acceptable level of communication, and a mutually beneficial and accepted solution through this.
It is therefore essential to create settings of communication and interaction at the level of both

2.6
local and macro-communities where the local authorities, social, minority, labour, education and
other institutions can meet and interact with each other, and in this way

• they can reduce the level of tensions in the local community,

• they can act against discriminatory procedures and phenomena,

Community • they have a better chance to identify problems that can and should be solved locally, and
• they can find solutions to existing and potential conflicts together.

mediation in This is of course a complex procedure. It works like a multiple entry matrix where the players (the

Hungary key actors, institutions in local society) have a permanent effect on each other.
The cooperation built on communication and mutual understanding between local communities and
organisations and a wide range of conflict management activities carried out within this cooperative
framework may help to lower the number of problems and may serve as a model in Hungary and in
2.6.1 Conflicts in micro-communities and macro-communities the other conflict-burdened countries of the region. NGOs specialised in anti-discriminatory efforts
should have a key role in this.
After the political changes in the late 1980s and early 1990s, Hungary
experienced such developments that fundamentally transformed 2.6.2 The main characteristics of conflicts
the values of certain groups of society and their relationships with
other groups. This was a common phenomenon in the region. In order to examine conflict management, it is first of all necessary to discuss conflicts in general, their
The well-known and familiar relationships of the past, which had main characteristics and their reasons and phases. If these basic characteristics are not identified, the
been both positive and negative but nevertheless had specifically process of recognising and analysing conflicts is difficult and unreliable. If a conflict is not recognised
defined the position of various groups in relation to each other, properly or is misdiagnosed, the attempts and efforts made to resolve it will tend to be inappropriate,
started to deteriorate. in which case the efforts will be either futile (in the circumstances, the best case scenario) or may
New needs, behavioural patterns and communication methods even increase tension (the worst case scenario).
emerged in the relations between various groups of society and In the life of a community, group or institution, it occurs quite often that the members of the community
local institutions. The new values and needs of certain groups need to respond to a dilemma or they must resolve an issue that has some kind of (minor or major)
were (and often still are) rejected by others. This builds mutual relevance in the lives of the members. The affected parties usually perceive these problems as conflicts.
distrust and suspicion, which eventually leads to social tensions Conflicts can only be handled effectively by the parties if we know what the definition of a conflict is.
and conflicts. These institutional conflicts and tensions within small
communities are the most difficult to manage as such conflicts are [Link] What is a conflict?
very often caused by a train of events that do not develop rationally.
The problems can only be solved permanently if the attitudes and Definitions of a conflict can be classified into two groups. One group of definitions focuses on the
dispositions of society are changed. For this, determination and, of phenomenon, while the other group of definitions considers conflicts as opportunities. Let us take a
course, a lot of time is necessary. look at these in detail.

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Conflicts as problems
Those definitions that see conflicts as phenomena focus on the reasons and the characteristics of conflicts. • by signalling to the parties that there is a problem that needs to be solved, and
According to this approach, conflicts can be competitions for goals or possessions that are only
available in restricted quantities for the parties in conflict or at least the parties believe that the
• by creating an opportunity and sometimes even forcing the
parties to express their viewpoints and interests openly.
amounts are limited.
The other type of conflicts is when the subject-matter of the conflict is intangible, but its availability In such circumstances, the positive side of a conflict can become dominant, that is,
is limited by nature. These include positions in an institution or community, titles, careers, or respect.
The third category of rivalry is when the participants strive to acquire such possessions or reach such • useful interaction can develop,
goals that are not limited from an objective perspective, but the cognitive or emotional perception of
the participants makes them believe that they are limited. In such cases, the purpose of the conflict is
• the communication generated by the conflict allows the parties
to explain their respective positions and learn about the other’s
intangible, and the rivalry is based on the false perception that the objective is limited. This, however, standpoint, so it can be used as an emotional and cognitive method
does not mean that the competition is less fierce from the aspect of the participants than in cases of easing the tension (the problem may be half solved if the parties talk it over),
when the availability of the objective is actually restricted.
This approach sees conflicts as a negative phenomenon and stresses the problematic and difficult
• helps build cohesion and solidarity between the participants
(common interests, shared goals etc.),
side of a conflict. From this viewpoint, there are a number of potential risks of conflicts. Conflict-
related risks:
• useful ideas for solutions can be identified in
the process of conflict resolution,
• effective and customary conflict management and conflict
• the parties’ interests may be hurt in a conflict; resolution attitudes and processes may develop.
• there is a risk that the behaviour of the parties will not be
rational and sensible but instead it will be determined by This, of course, will only work if the dynamics of conflicts operate in an established, well-defined
actions and reactions and therefore tensions will escalate; and stable environment. The main aim of conflict management and the role of the person managing
• the conflict may polarise the community; the conflict is to create such an environment.
• it may escalate, it may raise the level of tension within the community
or the institution and in extreme cases it may disturb the internal [Link] The three paradigms of conflict management
peace and threaten the integrity of the community or the institution; Conflict management on the one hand means positive thinking when one faces problems, and on
• the conflict can use up some or all of the energy and resources
that could be used for finding a solution;
the other hand it is a collection of procedures that provide the framework for conflict resolution
efforts. There are three rules that apply to all types of such procedures and that must be
• the conflict makes the building of partnerships and focused
joint efforts impossible;
kept in all circumstances.

• the conflict may prevent the participants from giving

up the stance they took during the conflict;
The first paradigm: conflict management is a conscious activity
Any conflict management activity is carried out on the basis of conscious behaviour and introspection,
• the conflict may result in a loss of support; regardless of whether it is the management of our daily conflicts or professional conflict management,
• it may prevent necessary changes; and which means that it involves the discovery of the reasons and the phases of the conflict and the
• it may destroy the operation of the community or institution in which it emerges. restriction of any emotions and instinctive/impulsive actions in connection with the situation.

Conflicts as signals and opportunities The second paradigm: in conflict management, the goal is not to decide
Conflicts should not always be seen as nuisances. They have a positive side that we can use to help us. who is right and who is wrong; instead, the goal is to overcome the problem
Conflicts do not have to be considered a stroke of fate; they can be seen as signals. They provide As mentioned in the first paradigm, if a conflict emerges, the intentions of the parties, and the
the framework of the solution, and, very often, they force the participants to approach the conflict background and the elements of the conflict must all be identified. However, it should not mean
with a view to find a solution. finding who is right and who is wrong as finding an answer to this question would mean a decision
In our personal and social life and in the operation of a community or an institution, conflicts have in favour of one of the parties in conflict, and such a decision would deepen the conflict. The third
a role similar to that of fever in the human body. Fever in itself is not an illness but rather a sign that paradigm is derived from the first two.
there is an “inappropriate” phenomenon in the body (an inflammation, an infection etc). Conflict is a
similar sign. It shows that a problem has emerged or there is a tension of some kind between people, The third paradigm: the person managing the conflict should never take sides
communities and organisations (or within the latter two). If the persons whose original task was to manage and resolve the conflict take sides, they will no
Not only do conflicts clearly indicate the existence of a problem but they also offer a solution as, longer focus on looking for or assisting the parties in finding a solution but instead they will start to
by recognising the problem, the participants may begin to resolve the issue. protect those parties’ interests, position and rights whom they decided to support. However, when
The affected parties usually consider conflicts an undesirable incident. It is indeed true that conflicts this happens, the person no longer manages the conflict, but rather protects the rights and advocates
bring tension, and nobody likes tension. However, I would like to repeat that within an appropriate the interests of one of the parties. This is a completely different activity with different objectives and
framework, a conflict can be a catalyst for solutions a different set of methods.

98 ////////////////////////////////// +++++++++++++++++++ 99
 2.6.3 The concept and content of mediation [Link] The mediation procedure
Mediation has four basic phases. In real-life mediation, these phases sometimes overlap. Nevertheless,
There are quite a lot of definitions used for mediation, including it is a good idea to keep them in mind as awareness of them helps in structuring and handling
a number of misconceptions. One of the most typical mistakes is mediation, in implementing it effectively and in reaching permanent and mutually favourable solutions.
when the Hungarian translations of the English term “mediation” These basic phases are: making contact, preparation, the mediation meeting and follow-up.
(közbenjárás, közvetítés) are used without proper interpretation.
This is because the Hungarian terms can refer to any activity The first phase: making contact
when a person acts as an intermediary (including real estate In mediation literature, there are a number of cases in which the mediation process and the mediation
agents, marriage brokers, matchmakers) while in English the session are considered synonyms. However, they are not the same. The mediation meeting is launched
content of mediation is much narrower as it cannot be used for all when the parties start a dialogue with the assistance of a mediator.
of these activities. The procedure of mediation actually starts much earlier than the beginning of the meeting. As a
It is another common error that mediation is used as a synonym first step, somebody asks the mediator to mediate the case. In an ideal case, the parties in conflict
of conflict management although conflict management is a much engage the mediator to mediate between them, but it also often happens that the mediator is asked
broader concept than mediation. Mediation is a procedure defined by by an external organisation or person that is affected by the dispute. Regardless of who initiates the
law in which an external, neutral party helps the parties in dispute in mediation, the mediator first identifies the parties involved and contacts them. In the contact phase,
a conflict that has already developed and deepened to the level where the mediator contacts each party personally and separately.
there is no communication between the parties. In mediation, the At these meetings, the mediator
impartial mediator’s objective is to find a solution that is acceptable
to all the parties involved. Conflict management on the other hand • shares with them the objective of his/her activity,
is a complex concept that includes all forms of resolving a conflict,
including direct and indirect methods, methods defined and not
• creates an environment of trust necessary for the mediator’s work,
informs the conflict’s participants of the mediator’s tasks and
defined by law, and methods available outside of legal procedures. obligations (neutrality, confidentiality etc.),
The relevant literature considers it a basic rule that in mediation
the mediator never makes decisions on behalf of the parties but
• asks for the given party’s agreement that he/she will
participate in the procedure.
instead helps them in creating a situation in which they are able to
make the decisions that lead to a solution. In this phase, the greatest challenge is to lower or eliminate the distrust of the parties they almost
Although this rule is a general rule, it is particularly true in always show. The object of the distrust is not necessarily the person of the mediator but rather their
countries where mediation has been applied for a number of unusual status. In the Hungarian conflict management culture a person or organisation involved in
decades. In Hungarian practice, there are still situations where a conflict is more or less expected to take sides, that is, to declare which party is right. With such
the participants expect some form of intervention. This happens expectations, a person claiming that he/she is independent is like a Martian on Earth. This makes
especially when in the mediation session the parties cannot give communication between the mediator and the parties in conflict quite difficult early on in the procedure,
up their victory-oriented approach or have difficulty in doing so. and the mediator may be tempted to take sides or to say that one of the parties is right (or all of them
The intervention can never mean that the decision is made by are right). If the mediator does so, the mediation will definitely fail and sooner or later the parties
the mediator, but in daily practice the mediator may have to ask will lose their trust in the mediator and mediation in general. “Temptation” can be overcome if the
questions that have hidden proposals in them, as such questions mediators remind themselves of the three paradigms of conflict management (consciousness and
may direct the parties towards a presumed solution in a way neutrality) and thus strengthen their mind and soul against the “siren song” of partiality.
that they have the liberty to reject those proposals. A proposal
can be hidden in a question that starts as follows: “Wouldn’t you The second phase: preparation
consider…?” By the second phase, the mediator has already made contact with the parties, has built the trust necessary
for the job and the parties have accepted the mediator. Building on this, the mediator then prepares the
[Link] When can mediation occur? mediation meeting.
The situation when two parties have a dispute is considered a As the main objectives of the preparation phase, the mediator will
conflict. In appropriate circumstances, such conflicts may help solve
issues as parties in conflicts have the opportunity to express their
interests openly, learn about and understand the other’s stance
• help the parties in conflict to reach an emotional and
mental state where their goals are no longer total confrontation,
and reach an agreement on the basis of this. rejection of the other and victory at all cost,
Conflicts, however, can worsen to a state where the parties
in dispute refuse to or are unable to communicate directly, but
• help the development of a solution-oriented
conflict management attitude,
they are willing to make an attempt at settlement through an
external mediator.
• collect some basic information about the conflict,

100 ////////////////////////////////// +++++++++++++++++++ 101

 • make sure all affected parties are identified (as in almost all
cases there are more persons affected by the conflict than it
Branka Peuraca
NGO Ars Publica (Croatia)
appears at first glance) and try to involve these additional parties Contact +++ branka_peuraca@[Link]
who are “in hiding”; otherwise, there is a chance that they will
block the procedure of finding a solution for emotional reasons
or other interests.

The third phase: the mediation meeting

The mediation meeting will only take place when the parties
have reached an emotional and mental state in which they will
presumably be able to work on finding a solution. It will be the
mediator’s task (and responsibility) to assess when the parties
reach this state. If the meeting is not prepared for properly, or if

2.7
the parties’ willingness is misjudged, it can have serious adverse
effects on the conflict and on the parties’ relationship (see the text
highlighted).

The fourth phase: follow-up

If the mediation meeting has been successful, the participants have Pakrac, Croatia:
a tendency to sit back and enjoy the fruit of their labour, namely
the agreement reached in the mediation process. While this is an Example of Innovative Restorative
understandable, the satisfaction of the parties should not make
them forget to act on the agreement. The implementation of the
agreement must be monitored and, if the implementation gets
Practices during an Armed Conflict
stuck, intervention must be made to help the parties.
An example of misjudging the level
of tensions: in a Transdanubian
town, the mayor invited the leaders
of certain organisations in the
town to a mediation meeting. The
organisations had had a really bad
relationship with each other. The
negative emotions had not been 2.7.1 Introduction
treated before the meeting was
convened, and tensions became During and after the four-year war in Croatia in the early 1990s,
so “dense” in the room that they restorative practices were introduced and applied in the communities
erupted, similarly to a fissile that were affected by physical destruction and by the complex and
material reaching critical mass. A long-term consequences of division and mistrust between different
fight broke out at the meeting and ethnic and social groups. The lessons learned in those communities
communication broke off for years. have shown that a space and opportunity for a restorative approach
can be found regardless of the complexity and destructiveness of
the conflict and regardless of the lack of funding and political will at
local and national levels. Therefore, there are no excuses for delaying
actions aiming at building a basis for restorative processes, such as
enabling people to understand the conflict and behaviour in conflict
situations; helping them to improve their communication skills and,
when possible, acting as an intermediary; or identifying strong and
independent-minded individuals and empowering them through
training, networking and continuous support.

102 ////////////////////////////////// +++++++++++++++++++ 103

 2.7.2 Social Reconciliation Project Pakrac relationships among the people and to re-establish trust and
solidarity within the community, it was clear from the beginning
The town of Pakrac, situated in the region of Western Slavonia, was that the idea of restoring inter-personal relationships cannot
the second most destroyed Croatian community as a result of the be “sold” to the people whose basic human needs are not met.
armed conflict. Ethnically mixed, it was populated mainly by Croats In order to recognize and respond to those needs, it was first of
and Serbs, and also by some other ethnic minorities such as Czechs, all necessary to somehow find entry into the community. In this
Italians and Slovaks, who – before the war – were living side by side, particular case, with men on the frontline and women struggling on
working together and often married outside their own ethnic group. their own to take care of their families, a strong young helping hand
After several months of heavy fighting, the frontline was established meant a lot. Immediately after establishing the volunteer camp, its
between the town centre, held by the Croatian government forces, members started helping the locals with the most urgent issues,
and the Eastern suburb, held by Serb rebels. This suburban area such as cleaning rubble, repairing damaged houses or chopping
became the edge of the United Nations Protected Area (hereinafter up wood. However, each volunteer had been trained, prior to the
UNPA) with a check-point controlled by UN soldiers. arrival to Pakrac, in basic skills necessary for the underlying social One of the project founders,
The UNPA was politically controlled by the Serb rebels and reconstruction work. While doing hard physical work, they also Goran Božićević, described how
occupied approximately 30% of the Croatian territory during the undertook active listening, conducted informal mediations and the volunteers did it: “We did not
war. Only international aid workers were crossing check-points to empowered individuals from the community. The international intervene directly in the conflict,
and from the UNPA. The frontline divided not only territories, but volunteers were able to cross the UN check-point and they used and we did not judge or give
also family members and friends. War operations and destroyed those opportunities to carry across letters to relatives and friends. advice, but we created space for
infrastructure caused a massive flight of the Pakrac population: This was the only opportunity to keep in touch, since the telephone the transformation of the conflict
out of the pre-war 15.000 inhabitants of its larger area, only 3.000 lines and postal services did not function between the territories through our own behaviour and
remained in the town in 1992. They were mostly those who had no controlled by the Croat and by the Serb forces. attitude. We had contacts with all
resources or relatives in other parts of Croatia or abroad to help It was not a smooth process. Besides the suspicion of the locals sides. We did not see two sides, but
them relocate. All the town’s industries were destroyed, and people who at first thought that all the volunteers were spies selling we saw the official and the private
depended on humanitarian aid, welfare benefits and on the modest confidential information to the other side, there was also resistance level on both sides. The only clear
salaries of the local men who were recruited by the army or by towards their “strange” ways – a patriarchal community proud of division was the territorial one, and
the police. Most of the houses were either demolished or heavily its traditional pork sausages and hams was reluctant to accept a all the other divisions were multi-
damaged and many families were living in basements, garages group of youngsters, mostly foreigners, with strange clothes and layered and complex – civilians/
or cramped in the houses of neighbours and friends. Damaged hairdos, males and females living together in rented houses… It took soldiers, government/opposition,
infrastructure often caused shortages in electricity and water. a lot of patience and persistence to establish personal relationships men/women.”
Relationships were also damaged. The families that were and build trust with the locals, who were also having difficulties in (Personal interview
ethnically mixed were torn by the conflicts, and the family re-establishing relationships and trust among themselves. by the author)
members of the “wrong” ethnicity got isolated from the majority
group. Competition for scarce resources further damaged trust
and solidarity. Former best friends could be found fighting over Volunteers realized that one of the reasons for the continuous
a package of old clothes that arrived from Germany, and stopped isolation and mistrust in the community was the fact that normal
greeting each other afterwards. social interactions were scarce. Pre-war activities that brought
These were the circumstances found by a group of five local and people together such as birthday celebrations or simple gossip
international activists who visited Pakrac in 1993. They slept on the over a coffee were not possible anymore, since in a room inhabited
floor of the former high-school dormitory which was damaged by by a family of 5 there is no space, and in the cupboard there is
fighting and at the time all the window glasses were broken. The no coffee for the guests, so people just stopped inviting each
activists, members of the Antiwar Campaign Croatia, sought support other. Youngsters did not have a place to hang out for after school
for establishing an international volunteer camp, called “Social activities, but they often had access to the basements where their
Reconstruction Project Pakrac”. Support was provided by a UK family kept homemade wine and brandy. Many of the teenagers
organization Quaker Peace and Social Witness (hereinafter QPSW) started drinking on regular basis. Women were struggling with the
and by the United Nations Office in Vienna. The first volunteers housework. Doing the laundry was one of the most difficult tasks,
arrived in Pakrac at the beginning of 1994 and over 300 of them since most of the washing machines were destroyed, and women
stayed there from 3 weeks up to 3 years. At the other side, in the had to do the laundry manually.
UNPA, a peace group from Serbia organized similar activities, After a year of the volunteers’ presence in the community, some of
although on a smaller scale. the locals had lost their initial reluctance to talk to the outsiders and
Although the main aim of the activists was to mend the started turning to them for help and support in personal matters.

104 ////////////////////////////////// +++++++++++++++++++ 105

 A husband prone to drinking, a daughter that violates her curfew, a 2.7.3 Conclusion
former friend who now turns her head when passing by… Listeners
were desperately needed, and volunteers did a good job. So they Taking a look back, several factors have contributed to the success
started gathering in groups those individuals who were most of restorative practices of the Social Reconstruction Project Pakrac.
interested in making changes in their lives, but did not know how A small group of self-motivated and committed Croatians from
to do it. Volunteers asked questions and facilitated their discussions. other parts of the country were willing to live in physically and
It turned out that youngsters needed a space for extracurricular psychologically difficult conditions, without sufficient financial and
activities, and women needed help in washing their clothes. Funds professional support. The UN provided international volunteers with
were raised for the youth-club and for the laundry. The foreign credentials of UN volunteers and IDs that enabled them to move
donors understood the importance of social gatherings and besides freely in the area.
the obviously necessary equipment such as cassette players and Courageous local women had good will to communicate, learn
washing machines they also approved expenses for detergent, and transform themselves and their community. Ambassadors of
sugar, tee and coffee. the countries funding the laundry with their visits to the women
Now when there was a place to gather, it was much easier to confirmed their credibility and contributed to the more positive
organize workshops in communication skills and conflict resolution image of the women’s group and their activities in the community.
for the groups who had been gathered together, preparing them The high-school headmaster and the chief of the police cared and
to establish contact and to build their network independently understood and supported the restorative approach. QPSW chose
from the volunteers. to support motivated individuals and their ways of working instead
In 1995, in two attacks Croat forces regained control over most of of pressuring them to produce tangible immediate results in the
the UNPA territory.12 Only a few weeks after heavy fighting in Croatia activities they funded. And last but not least, there were hundreds
and in Bosnia, women from the laundry travelled to Macedonia to of international volunteers who were willing to acquire or share
meet over hundred women activists from all the post-Yugoslav skills necessary for restorative practices and made a choice to live
countries, a first such opportunity since the war had started. In 1996, part of their lives in an unhappy and uncomfortable place.
a group of teenagers took part in a two-week training workshop
on conflict resolution skills for youth from communities affected
by the war in Croatia, Bosnia and Herzegovina and Serbia. Pakrac
was among the first places whose locals took part in conferences
and workshops together with those from the “other side”. Each
new trip, each new event empowered the travellers who, upon
their return home, brought new perspectives and new skills. The
former high school dormitory was reconstructed and got a new
purpose, so the youth club lost its premises. Most of its’ members
enrolled to university in Zagreb anyway and the new generations
turned to newly opened coffee shops and their own repaired houses
for socializing. Some of the teenagers from the youth-club chose
helpers’ vocations and became teachers and social workers.
Women from the laundry became the most experienced and
respected NGO in their county called Delfin. They built new alliances
within Croatia and grew stronger. In times when rhetoric was still
bellicose and just talking “to the other side” was considered a
treason, the women initiated and kept contact with the people
living across the former frontline; took part in many workshops
and conferences in post-Yugoslav countries; ran a programme
on affirming minority ethnic identities in Pakrac; and, last but not
least, started co-operation with war veterans on issues concerning
confronting the recent history and its effect on individuals from all
sides. Women came a long way from being suspected traitors to
becoming the partners of the local and regional authorities whose
12
The last part, Eastern Slavonia, was
returned under Croatian control in 1997,
assistance is sought in facilitating the processes of cooperation
after long negotiations with the local Serbs. such as planning local development.

106 ////////////////////////////////// +++++++++++++++++++ 107

 Karin Bruckmüller és Christoph Koss13

3. Karin Bruckmüller +++ University of Vienna (Austria)

Christoph Koss +++ NGO Neustart (Austria)
Contact +++ [Link]@[Link]

Restorative practices in the criminal

procedure during the pre-trial stage
and the court procedure
3.1
Diversion for Promoting
Compensation to
Victims and Communities during the
Pre-trial Proceedings in Austria
3.1.1 Promoting compensation – an issue in Austrian criminal law since 1787

The idea to promote compensation by the offender to the victim has a relatively long tradition in
Austria. Its two aspects – the offender actively accepting responsibility and the victim simultaneously
receiving compensation – have played a role in Austrian criminal law for over 200 years. The institution
of so called “active repentance” (“Tätige Reue”) was established in the Criminal Code in 1787, and is
still in force for offences explicitly mentioned in the Code (especially in the case of offences against
property).14 If the offender manifests repentance by compensation or reparation of the overall damage
resulting from the offence, no punishment shall be imposed. This act of repentance, based on its
acceptance by the offender,15 must take place before the police authorities become aware of the
13
Karin Bruckmüller is responsible for
the legal parts (3.1.1-[Link]) and the
offender’s guilt.
conclusions, Christoph Koss for the practical
implementation of the victim-offender-
mediation ([Link]).
3.1.2 A broad range of provisions to promote compensation
14
See in particular Section 167 CC.
Beside this rule which provides a possibility for the offender’s exemption from punishment, there is
15
Also if there is some pressure of the victim, also a broad range of other provisions based on the approach of restorative justice in Austrian law.16
it can be interpreted as a decision on a free
will.
They can be found in the Criminal Code (Strafgesetzbuch, hereinafter CC),17 the Corporate Liability Act
(Verbandsverantwortlichkeitsgesetz, hereinafter CLA),18and the Crime Victims Act (Verbrechensopfergesetz),
16
For a detailed report on restorative justice
in Austria see Hilf 2009 (in print). Thanks to
but they are mainly included in the Code of Criminal Procedure (Strafprozessrecht, hereinafter CCP),19
Professor Hilf, for making her manuscript and the Juvenile Court Act (Jugendgerichtsgesetz, hereinafter JCA),20 diversion being at the centre of
available for this article. See also Löschnig-
Gspandl (1995: 766).
these provisions.
An essential step to promote compensation and also to enforce the victims’ rights as a whole in the
17
E.g. compensation for damage constitutes
a mitigating circumstance (Sec. 34 CC).
Austrian criminal procedure was taken by the latest major reform to the CCP, which came into force at the
beginning of 2008. In addition to the reform of the pre-trial stage, another aim was to make the position
18
See in particular Section 8 CLA, and the
rule concerning diversionary measures (Sec.
of victims stronger during the whole criminal procedure (Hilf and Anzenberger 2008: 886; Bruckmüller
19 CLA). and Nachbaur 2009/2010). Victims are now provided with numerous participation rights during the whole
19
See below.
proceedings. As a condition to these rights, there are also comprehensive information rights provided
by the law. To strengthen the restorative aspect, it is now explicitly stated in the CCP that the authorities
20
See Section 7 et seq JCA.
(judges and prosecutors) have to act in the best interest of the victim and should ensure that the victim
21
See Section 10 CCP. is compensated as fully as possible.21

108 ////////////////////////////////// +++++++++++++++++++ 109

The referring provision 3.1.3 Diversion as the main element of cases of juvenile offenders, if the victim is a relative of the juvenile
of the CCP states that restorative justice and compensation offender, and the offender undergoes severe psychological strain as
a result, a diversionary measure is possible24 (mostly this is true in
(1) if the sanction for the act is [Link] The development of diversion in Austria cases of car accidents; for example where the car was driven by the
only a fine or if the offence is Diversionary measures were introduced into the Austrian criminal juvenile and his/her sister died);
punishable by no more than
three years of imprisonment
procedure from very early on. The starting point was a victim offender
mediation pilot project in 1985 (for details concerning the origins of
• no other – traditional – criminal sanction is necessary from aspects
of individual and general prevention;
or by such an imprisonment
combined with a fine,
the project see: Jesionek 2003). This experiment only involved juvenile
offenders and their victims and was legally based on the discretionary
• one may say that also reparation or compensation for the damage
resulting from the crime is a condition for ordering diversion (since
powers set out in the criminal law concerning juveniles at that time. 2008)25 – exceptions can only be made in special circumstances, e.g.
(2) and the offender’s guilt is Because of the very good results of the project, similar rules were if the offender is a juvenile the compensation should be in proportion
minor and the offence has included in the JCA in 1988. with his/her financial situation.
resulted in no more than Due to the success of the project concerning juveniles, another
slight consequences or if pilot-project was set up, this time for adult offenders (the “ATA-E” If the legal criteria (see above) are met, the public prosecutor has 24
See Section 7(2) JCA.
the offender compensates project). The legal basis for this project was a rule in the CC, to offer a diversionary measure to the suspect in the pre-trial stage 25
See sections 200(3), 201(3), 203(2), 204(1).
for the damage caused or “Mangelnde Strafwürdigkeit der Tat”, meaning that in special cases (before an accusation is made).26 The public prosecutor is obliged to
26
After an accusation the judge is the one,
otherwise makes up for the the crime shall not be punishable (see for doubts from a constitutional choose a diversionary measure which supports the victim’s interests who has to offer one of the measures, when
consequences of the crime, law perspective: Muzak 1993: 690; and the replica from a criminal and needs to the greatest extent possible. The diversion measure the legal preconditions are met.
law angle Miklau 1993: 697). This rule was – nearly word by word – can only be carried out if the suspect accepts it. (The suspect also
(3) and a punishment is not Offered by prosecutors and judges. In 90%
27

transferred to the CCP in 2008 (see the text highlighted).22 has the possibility to ask for the proceedings to be continued at of the cases, referral is done by the public
prosecutor. In 10% of the cases the order
necessary from aspects of any time before the final decision for the dismissal of the case is comes from a judge.
special- or general prevention made.) For victim offender mediation, the victim’s consent is also
28
See at [Link]
the proceedings shall be In 2000 – according to the results of the ATA-E project – the necessary (except in cases of juveniles). cms_upload/_docs/Jahresstatistik_
closed. measure proved to be effective in the case of adults also (Pilgram Diversion_2007_und_Vergleich_2006_2007.
pdf (30.09.2009). To empirical data see also
1994: 231). Therefore, victim offender mediation was included in Grafl (2002: 413).
the CCP as one of the four diversionary measures.

22
With the new appellation “Einstellung [Link] The legal conditions for diversion Offers of diversion % of the total Unsuccessfull diversion
wegen Geringfügigkeit” (“closing the The following methods of diversion are available: 2007 amount in % of the offers
proceedings because of pettiness” – Section
191 CCP). Amount of money 22.361 49.34% 17.60%
23
For diversionary measures for juveniles
see Section 7 JCA; in Section 6 of JCA are
• suspending prosecution for a probation period (from one to two
years), which can be combined with supervision by a probation Community services 3.187 7.03% 17.54%
also stated a non-intervention diversion. A officer and/or the completion of so-called “obligations”;
•
special form of a diversion is established in Probation period without
the Austrian Drug Law. Both last mentioned the offender paying a certain amount of money; supervision
diversionary measurers are not combined
• community service; and obligations to 8.293 18.30% 10.1%

•
with compensation to the victim. be performed
out-of-court settlement, victim offender mediation now being
referred to as “case settlement” (“Tatausgleich”, which indicates Probation period
the fact that victim offender mediation is not necessarily always with supervision or 2.097 4.63% 26.08%
carried out between the victim and the offender). obligations to be
performed

The legal conditions for diversion are determined in Section 198 Victim offender 9.379 20.70% 25.61%
et seq. CCP (Schroll 2004; Kienapfel and Höpfel 2009):23 mediation

• the facts of the case must be clarified in an adequate way;

• the act must fall within the jurisdiction of the district court or
of the single judge at the regional court (Landesgericht) – this
means that the offence must be punishable by no more than five Table 2
years of imprisonment or by a fine; Diversionary measures27 in 2007

• the guilt of the suspect must not be considered to be severe; the

offence may not result in fatalities – there is one exception: in
(Source: Annual statistics
of Diversion 2007)28

110 ////////////////////////////////// +++++++++++++++++++ 111

[Link] Victim offender mediation Each year between 8.000 and 9.000 cases are referred from
Victim offender mediation is at the heart of restorative justice in Austria, because – according to the prosecutors or judges to Neustart in order to carry out victim
law29 – the aim of this measure is primarily reparation, restitution or compensation and/or reparation offender mediation. Table 3 below shows the development between
in a symbolic way (especially if a “true” apology is offered). 1985 and 2008.
Victim offender mediation tries to achieve the following aims in particular: for the offender to
accept responsibility for his/her act and to confront him/herself with the causes and the results of
Year Juveniles Adults30 Total
the offence (retrospective-emotional element). By compensating the victim, the victims’ interests and
needs are strongly supported (restorative aim). Finally, the offender shows a willingness to abstain 1985 116 0 116
from re-offending, thus in the future the offender is prevented from re-offending and the victim is 1986 363 0 363
prevented from being revictimized (preventive element).
1987 606 0 606
There is also a community aspect: diversionary measures and mediation in particular are based
on the understanding that an offence is not only a violation of criminal law and an act that causes 1988 712 0 712
harm to a single person – the victim – but also may affect the community. Therefore the criminal 1989 1.236 0 1.236
procedure has to facilitate restoration and involve not only the offender but also the victim and – as 1990 1.426 0 1.426
much as possible – their communities in the reaction to the offence (more precisely to both last 1991 1.516 0 1.516
paragraphs see Hilf 2009). 1992 1.884 669 2.553
1993 2.033 898 2.931
[Link] Victim offender mediation in practice
All victim offender mediation (VOM) cases are referred to Neustart, a nationwide private non-profit 1994 2.341 1.876 4.217
organisation which is also responsible for managing the probation service, community service, after- 1995 2.599 2.052 4.651
care, and crime prevention programmes in Austria. The mediation process is illustrated by Figure 3. 1996 2.657 2.720 5.377
1997 2.727 3.478 6.205
1998 2.680 4.814 7.494
1999 2.579 6.845 9.424
2000 2.164 6.985 9.149
Offence 2001 2.051 6.895 8.946
2002 1.536 7.264 8.800
Report to
the police 2003 1.388 7.008 8.396
2004 1.610 7.352 8.962
Report to the
public prosecutor 2005 1.591 7.382 8.973
2006 1.474 7.028 8.502
Assignment to the mediator(s) 2007 1.498 6.898 8.396
Referral to VOM
Feedback to the public 2008 1.448 6.650 8.098
prosecutor or to the judge on
whether mediation has been
successful or not
40.235 86.814 127.049 Table 3
If mediation was successful: If mediation was unsuccessful: VOM development
dismissal of proceedings continuation of proceedings in Austria, 1985–2008

All cases start with a pre-mediative phase where only one-to-one

meetings either with the offender or the victim take place. Only if
Figure 3 the requirements are met will there be a mediation session with
VOM process in Austria both parties.

29
See Section 201(1) CCP.
30
A victim offender mediation
for adults has been the first time
proceeded in the year 1992.

112 ////////////////////////////////// +++++++++++++++++++ 113

 A viable agreement negotiated by the suspect and the victim offers a chance for lasting social
peace (55% of allocated cases originate in the immediate social environment).
Types of conflicts
Organization and methods
Situative 55.29
41.3 Mediation is organised as a specially defined field of practice. This means that only specialised and
Partnership 1.2 trained mediators carry out mediation in criminal cases.
23.2 Depending on the type of conflict, different methods may be employed. One or two mediators
Family 2.3
8.6 may work on individual cases. A female and a male mediator, for instance, will handle cases of
Neighbourhood 0.8 domestic violence. Special methods are applied in stalking offences to prevent offenders and victims
6.3
0.7 from meeting.
Working Place
3.3
13.3
School
0.5
Acceptance, success and rates of re-offending
Other social contacts 15.3 85% of the cases involving juveniles and 70% of the cases involving adults are concluded by the
11.4 mediator(s) reporting the success of the mediation process to the public prosecutor and thereby
Others 11.3
5.6 ending criminal proceedings.
A research by the University of Innsbruck (Altweger and Hitzl 2001) shows that victims are very
Juveniles Adults Figure 4 satisfied with the outcome of victim offender mediation: 75% of the victims would choose to rely
Types of offences and conflicts on mediation again in a similar future case.
A research carried out by the Institute for the Sociology of Law and Criminology shows that the
recidivism rate within 2.5 to 3.5 years after successful victim offender mediation is 13% (Hofinger
and Neumann 2008). In cases of domestic violence it is only 11%. 66% of all cases referred to
84% of all cases referred for mediation are offences related to Neustart are assaults. In case of mediation, the recidivism was 15% compared to 41% if the same
aggression, in particular assault and battery, others include serious offence was punished in the traditional system. Another research by the Institute for Penal Law from
threats, coercion, harassment and in some cases robbery. the University of Vienna found that the main reasons for such positive results were the following:
The remaining 16% comprise mainly offences against property, prosecutors and judges are successful in choosing cases that are suitable for mediation and the
i.e. theft, burglary, vandalism. preventative effect that victim offender mediation has (Schütz 1999: 161).
Mediators must always take into account the type of conflict and
its environments. 55% of conflicts concern the immediate social Cooperation with other institutions
environment, i.e. partnerships (mainly violent offences), family There is intensive cooperation in particular with those who are entitled to refer cases for mediation,
and friends, work place, school, as well as the most difficult type such as the public prosecutors and, to a lesser extent, the judges.
of conflict to mediate – conflicts among neighbours. Cooperation involves questions relating to individual cases as well as developing joint concepts
Given that in these cases the clients were known to each other concerning which cases are suitable for victim offender mediation and which are not.
before the offence was committed and are in most cases likely to Depending on the given problem, additional co-operation is undertaken with victim support
remain in contact in the future, it is of particular importance to work organisations, female organisations, other social organisations, police, lawyers, therapists, etc.
out a plan of what future contacts between the parties could be like. If the mediation process shows that victim offender mediation is not suitable and the offender needs
supervision by a probation worker, the mediator(s) will try to obtain a probation order from the court.
Objectives of victim offender mediation
3.1.4 Conclusions
• The victim has the possibility to receive restitution, both emotional
and material. The state’s duty to assist a victim of an offence by providing a criminal proceeding does not mean
• Needs and emotions of the victim are taken seriously. that the process has to lead to a verdict and the conviction of the offender (to this aspect and the
• The suspect is given an opportunity to consider how to provide
restitution for the offence. The suspect is not in a defensive
human rights see: Dearing 2004: 81; 2002: 165). A traditional sanction or very harsh sentencing is not
necessarily important to the harmed person. What is important for a victim is a formal reaction from
position like in the case of a trial but can take an active role in the state (Sessar 1985: 1137). Therefore the state should be given as much room as possible to react
repairing the harm caused. in a restorative manner in criminal cases, to support the compensation of the victim, to integrate the
• The dismissal of proceedings following successful mediation
means that the offender will avoid having a criminal record
community in the procedure as much as possible and to prevent victimisation in the future.

and the potential negative consequences thereof (particularly [Link] Best practices in Austria
important for job-seeking in a crowded labour market). In particular, victim offender mediation should be mentioned among best practice examples in
restorative justice.

114 ////////////////////////////////// +++++++++++++++++++ 115

 • The legal rules were based on a successful pilot process, so they
have a solid and practical basis enabling them to function very
References

well in practice. • Altweger, A. and E. Hitzl (2001) Kundenzufriedenheitsanalyse der Geschädigten

• The organisation responsible for mediation called Neustart

ensures high and differentiated standards in Austria. High
im Außergerichtlichen Tatausgleich. Innsbruck
• Bruckmüller, K. and D. Nachbaur (2009/2010, in print) Opferrechte im
because of the specially trained mediators and differentiated Strafverfahren. Juristische Ausbildung und Praxis.
because specific procedures applicable to different types of • Dearing, A. (2002) Strafjustiz als Integration, Elemente einer an den
victim offender mediation cases have been established. Menschenrechten orientierten, opfergerechten Strafjustiz. In: W. Stangl

• Additionally, effective cooperation between Neustart and the

responsible authorities as well as relevant victim support
and G. Hanak (eds.) (2003) Innere Sicherheiten, Jahrbuch für Rechts- und
Kriminalsoziologie. Baden-Baden: Nomos: 165.
organisations has made diversion, and victim offender mediation • Dearing, A. (2004) Das Recht des Opfers auf ein Strafverfahren und die
in particular, a great success. Strafpflicht des Staates nach der EMRK. In: A. Dearing, M. Löschnig-Gspandl
(eds.) Opferrechte in Österreich, Viktimologie und Opferrechte. Series of the
Hence the bigger part of practitioners – the public prosecutor and Victim Support Research Organisation Weisser Ring: 81.
the criminal judges – but also the majority of the public accepts • Grafl, C. (2002) Empirische Daten zur Diversion in Österreich in den Jahren 2000
diversionary measures and mediation in particular as an appropriate und 2001. Österreichische Juristen-Zeitung: 413.
response to criminal behaviour. But there are still some sceptical • Hilf, M. (2009, in print) Restorative Justice Developments in Austria. In: I. Aertsen and
opinions concerning restorative justice being used by the police. D. Miers (eds.) A comparative study of restorative justice provisions in Europe.
The main reason for this is a “general feeling of frustration” that • Hilf, M. and Ph. Anzenberger (2008) Opferrechte, Die Stellung des Opfers im
their sometimes lengthy investigation-process will not necessarily Strafverfahren. Österreichische Juristen-Zeitung: 886
result in an accusation (Hilf 2009). • Hofinger, V. and A. Neumann (2008) Legalbiografien von Neustart Klienten.
Unpublished presentation (December 2008)
[Link] One example of malpractice in Austria • Höpfel, F. and R. Kert (1999) Gewalt in der Familie und Diversionslösungeb. In:
There is also a harmful method that has to be mentioned. This is R. Miklau and H. V. Schroll (eds.) (1999) Diversion 1999, ein anderer Umgang
the case of “victim-offenders”, for example cases of car- and ski mit Straftaten. Vienna: Verlag Österreich: 127.
accidents, of affray or cases of mutual injuries. The rights of all • Jesionek, U. (2003) 80 Jahre Jugendgerichtsbarkeit in Österreich – Rückblick
people involved are violated – so they are victims –, but all or some und Ausblick. (Part III) Österreichische Richterzeitung.: 118.
of them are also guilty – so they are at the same time offenders. • Kienapfel, D. and F. Höpfel (2009) Grundriss des Österreichischen Strafrechts
Under these circumstances the prosecutors sometimes refer all – Allgemeiner Teil. (10th edition) Vienna: Manz
of the parties to mediation, without checking the exact facts of the • Koss, C. (1996) Gewalt in Beziehungen–Sichtweise und Perspektiven des
case. Hence the public prosecutor does not verify one of the legal Außergerichtlichen Tatausgleichs. Sozialarbeit und Bewährungshilfe, vol. 18,
preconditions for diversionary measures. For example one result no. 2: 69.
can be that a victim, who acted in self-defence, is classified as an • Königshofer, M. and M. Mössmer (2007) Plädoyer für den Außergerichtlichen
offender in the mediation process. Tatausgleich als Angebot bei Gewalt in Paarbeziehungen. Journal für Strafrecht: 121.
• Löschnig-Gspandl, M. (1995) Gedanken zur „Wiedergutmachung“ in der
[Link] Points of discussion in Austria Strafrechtspflege. Juristische Blätter: 766.
The main point of controversy is whether stalking and domestic • Muzak, G. (1993) Verfassungsrechtliche Aspekte des „Modellversuchs“
violence are suitable for mediation. Although Neustart offers Außergerichtlicher Tatausgleich. Österreichische Juristen-Zeitung: 690.
special methods of mediation in these cases (Koss 1996: 69; Höpfl • Miklau, R. (1993) Der „Modellversuch außergerichtlicher Tatausgleich“ ist nicht
and Kert 1999: 127; Königshofer and Mössmer 2007: 121), mainly Verfassungswidrig. Österreichische Juristen-Zeitung: 697.
representatives of women’s organizations still advance the view • Pilgram, A. (1994) Ist das Modell serienreif? Forschungsergebnisse zum
31
Discussion at the Conference
“Psychosoziale Prozessbegleitung im
that mediation is not a harsh enough reaction to repeated domestic Außergerichtlichen Tatausgleich bei Erwachsenen. Österreichische
Zivilverfahren“, May 2009, unpublished. violence.31 Richterzeitung: 231.
• Schroll, H. V. (2004) §§ 90a–90m. In: H. Fuchs and E. Ratz (eds.) Wiener
Kommentar zur Strafprozessordnung. (28. Lfg,) Vienna: Manz
• Schütz, H. (1999) Die Rückfälligkeit nach einem Tatausgleich bei Erwachsenen.
Österreichische Richterzeitung: 161.
• Sessar, K. (1985) Das Opfer. Eine viktimologische Zwischenbilanz. In: T. Vogler
et al. (eds.) Festschrift für Hans-Heinrich Jescheck zum 70. Geburtstag. Berlin:
Duncker and Humblot: 1137.

116 ////////////////////////////////// +++++++++++++++++++ 117

 Wojciech Juszkiewicz In 1997, Mediation as an institution has been included in the Criminal Code (hereinafter CC) and
Ministry of Justice (Poland) the Code of Criminal Procedure (hereinafter CCP) and in 2000, it became part of the Act of 26 October
Contact +++ juszkiewicz@[Link] + woju76@[Link] 1982 on the Proceedings in Cases Concerning Juveniles.
Among criminal justice officials and legal institutions there is significant support for mediation in
juvenile justice. It is not clear whether or not there is the same level of support for mediation in the
cases of adult offenders. Judges, prosecutors, and the police express interest in the possibilities but
also raise deep concerns about it.

3.2 3.2.2 Mediation in the Polish Criminal Procedure

Mediation proceedings were made part of the CCP by the Act of 6 June 1997 that came into force on
1 September 1998. The main purpose of introducing mediation into the Polish criminal system was
to reduce the number of litigated cases and to shorten the duration of the criminal proceeding. The

Reparation as a legislator had in mind that mediation might also limit the number of sanctions having to be enforced
and might decrease court and social costs. Therefore, settlements are encouraged in all legal conflicts.

Mitigating Circumstance At first, mediation sessions were conducted only at the pre-trial stage and at the very early stage of
judicial proceedings (during the preliminary judicial verification of the indictment). In 2003, however,

When Imposing a Sentence – the law was changed in a way that favours mediation. Special legal regulations concerning mediation
were added to the general part of the CCP (Sec. 23a).

Mediation in Poland Section 23a provides that the court, and in the preparatory proceedings also the state prosecutor,
may, ex officio or upon application of or with the consent of the injured party and the accused, refer
the case to a trustworthy institution or person for carrying out mediation between the injured party
and the accused. The duration of the mediation proceedings shall not exceed one month and this
time does not count as being part of the duration of the pre-trial proceedings. The success of the
mediation process can serve as a basis for

• a conditional discontinuance of the criminal proceedings,

• an extraordinary mitigation of the punishment,
• a conditional suspension of the punishment, or
3.2.1 Introduction • the court to decide to only impose a penal measure instead of a punishment.

Slowly but surely, the philosophy of restorative justice is becoming Due to this amendment, mediation became admissible at every point of the criminal procedure.
a part of the Polish judicial system. Within the last few years there Moreover, to promote this form of resolving criminal cases at the pre-trial stage, the time necessary
has been an improvement in the legal situation of the victim in the to prepare and conduct a mediation session was excluded from the limited amount of time prescribed
criminal system. by law for the police (or prosecutors’) investigation. On 13 June 2003, the Ministry of Justice issued
Interest in mediation in Poland first appeared in the early 1990s. a legally binding regulation concerning the mediation process (see the text highlighted).
A group of government employees and representatives from a
non-governmental organization helping prisoners visited German According to provision 11 of the regulation issued by the Ministry
mediation centres. At the same time, several researchers and of Justice, the mediator – immediately after receiving the decision
academics in criminology and especially juvenile justice became of referral to mediation – is obliged to:
interested in mediation as well. They sought new ways of responding
to crime – providing more help to juveniles and meeting the needs
of victims. A working group established the following directions
• formally
contact the victim and the offender (either suspected or already
accused) to arrange the time and place of individual pre-
for the development of mediation projects in Poland: carrying out mediation meetings;
experiments in mediation; establishing legal principles; organizing
trainings for mediators as well as seminars and conferences; and
• organize individual pre-mediation meetings with each of the parties
in order to inform them about the concept of mediation, rules of the
publishing information on mediation. Experimental programmes mediation process and their rights;
targeted at juveniles were initiated in 1996, and other steps were • conduct victim offender mediation sessions face-to-face;
also taken (e.g. an international conference in 1995, and training
sessions for mediators).
• help parties in writing down the terms of the negotiated agreement
and monitor its fulfillment.

118 ////////////////////////////////// +++++++++++++++++++ 119

 It has to be emphasized that the face-to-face meeting of the victim and the offender is a procedural (2) In imposing the punishment, the court shall above all take
requirement of the Polish criminal procedure – mediation cannot be conducted in the form of shuttle into account the motivation and the manner of conduct of the
diplomacy! perpetrator, whether the offence was committed together with a
minor, the type and degree of transgression against obligations
3.2.3 Referral of cases to mediation imposed on the perpetrator, the type and dimension of any adverse
consequences of the offence, the characteristics and personal
Cases can be referred to mediation by: conditions of perpetrator, his way of life prior to the committing
the offence and his conduct thereafter, and particularly his efforts
• prosecutors – at the stage of the pre-trial proceedings; to redress the damage or to compensate in another form for the
• police officers – at the stage of the pre-trial proceedings; injustice caused, with regard the public perception of justice. The
• courts – at any level of the judicial proceedings (up to the final
judgment);
court shall also consider the behaviour of the injured person.

• courts – in cases prosecuted based on a private accusation (3) The court shall also take into consideration the success of the
(on the application or consent of both parties) in the place of mediation between the injured person and the perpetrator, or the
conciliatory proceedings; settlement reached by them in the proceedings before the state
• courts supervising law enforcement (or directors of penal
institutions) – at any point of the imprisonment (regardless of
prosecutor or the court.

the term of the sentence);

• courts supervising law enforcement – at the stage of enforcement
proceedings. 3.2.5 Privately prosecutable offences

3.2.4 Impact of mediation on the final judgment of the criminal court The main purpose of proceedings in cases of privately prosecutable
offences is to create the best conditions for the accused and the
The successful outcome of the mediation process may influence private prosecutor to reconcile. The main trial should be preceded
the court to pass one of the following decisions: by a conciliatory session. This session should begin by calling upon
the parties to reconcile. Of course, there is also a possibility for the According to Section 341
• conditional discontinuance of the criminal proceedings; parties to reach an agreement during the trial, in which case the subsection 3 of the CCP, if the
• unconditional discontinuance of the criminal proceedings
(e.g. when the act does not harm society, or only does so at an
proceeding shall be discontinued. court finds it reasonable and if
there is a possibility of reaching
insignificant extent); 3.2.6 Offences prosecutable ex officio an agreement between the
• a judgment upholding the terms of the reached mediation
agreement (e.g. reparation of damages, financial restitution,
accused and the injured on the
In proceedings concerning offences that are prosecutable ex officio, matter of compensation, the
compensation of moral injury, personal or community service, the reconciliation of the accused with the injured person may serve court may adjourn the session
obliging the offender to change his/her behaviour, undertaking as a basis for the conditional discontinuance of the proceedings. and designate a suitable time-
anti-drug or anti-alcohol therapy, apologizing to the victim); This rule is in general only applicable to offences for which the limit for the parties to reach an
• a judgment without a trial (if the offender has voluntary submitted
himself/herself to the punishment set out in the mediation process).
statutory punishment does not exceed 3 years of deprivation of agreement. On a joint application
liberty (Sec. 66 subsec. 2 of the CC). But, according to Section 66 from the accused and the injured
subsection 3, in the case that the injured party has been reconciled party, the court shall announce a
CC (Act of 1997), chapter VI, Principles of with the perpetrator, the perpetrator has redressed the damage or suitable break in the session or
the imposition of punishments,
Section 53 the injured party and the perpetrator have agreed on the method shall adjourn the session.
of redressing the damage, the conditional discontinuance may Moreover the court, by imposing
(1) The court shall impose the punishment at its own discretion, be applied to a perpetrator of an offence for which the statutory the sentence, should also take
within the limits prescribed by law bearing in mind that punishment does not exceed 5 years of deprivation of liberty. into consideration the success of
the harshness of the punishment should be in line with the Additionally, the court is obliged to ensure the possibility for the the mediation between the injured
perpetrator’s degree of guilt considering the level of social parties to reconcile (see the text highlighted). person and the perpetrator,
consequences of the act committed and taking into account the or the settlement reached by
preventive and educational objectives which the punishment has to them in the proceedings in the
attain with regard to the sentenced person, as well as in respect of presence of the state prosecutor
general prevention. or the court.
(Sec. 53 subsec. 3 of the CC)

120 ////////////////////////////////// +++++++++++++++++++ 121

3.2.7 Statistics on mediation Court decisions Number of cases % of cases
Table 4 shows the frequency of the use of mediation in criminal Unconditional
cases between 1998 and 2003. discontinuance of the 82 23.8
criminal proceeding
Conditional discontinuance
of the criminal proceeding 53 15.4
Year Number of cases (based on the terms of
referred to mediation the mediation agreement)
1998 18
1999 366 Table 4 Conditional discontinuance
of the proceeding
The use of mediation in criminal (with no reference to terms
72 20.9
2000 722 of the mediation agreement)
cases in the period from 1 September
2001 800 1998 to 31 December 2003
2002 932 (Source: statistical data of the Suspended imprisonment 80 23.5
2003 1.838 Ministry of Justice of Poland)
Imprisonment 2 0.3

Pecuniary punishment 19 5.5

In almost 60% of the cases referred to mediation, the parties
managed to reach an agreement, and only 34% of them finished with
Table 6
Voluntary submission 15 4.3
to punishment Court decisions based
none at all. In 6% of the cases referred to mediation, sessions did
on mediation (1999)
not take place due to various reasons (e.g. the court withdrew the Other 22 6.4 *The total number does not include
decision of referral, one of the parties did not agree to participate
the number of cases with no full
or it was not possible to contact the party). Total* 345* 100%
data available.

Ref. to mediation Ref. to mediation Decision in 3.2.8 The Polish Centre for Mediation
Type of offence 1999 2002 judicial
proceedings 2000
The Polish Centre for Mediation (hereinafter PCM) has 500 mediators associated with it, and about 30
Offences against family branches located all around Poland.
and guardianship 36.6% 34% 15.5%
The activities of the organization are:
Offences against
life and health 21.9% 26.6% 9.6%
• conducting mediation proceedings;
• promoting mediation;
Offences against
property 14.1% 10.1% 44.9% • publishing a quarterly magazine, The mediator, and other materials;
• organizing training programmes.
Offences against honour
and bodily inviolability 13.6% 16.9% 4.2% The main activity of the organization is conducting mediation proceedings for juvenile and adult
offenders. Although PCM focuses on victim offender mediation, the organization also deals with other
types of cases, for example civil law cases.
Other 13.76% 12.4% 25.8%

In Poland there are regulations which specify who can become a me-
Table 5 diator. Such persons must
Types of criminal cases
referred to mediation
• behaveat Polish
least 26 years old,
As Table 5 shows, mediation is frequently used to dissolve criminal • have no criminalcitizenship,
conflicts concerning offences against family and guardianship, life • have adequate experience.
record,
and health, honour and bodily inviolability, while crimes against
property are more often decided in traditional judicial proceedings.
•These are the only legal requirements.
Table 6 shows the number of court decisions based on mediation
in 1999.

122 ////////////////////////////////// +++++++++++++++++++ 123

 PCM emphasises the importance of training. They consider
that mediators must take part in at least a basic training course
before undertaking any mediation. On completing the course, new
mediators may only operate under supervision. They must conduct Prof. Dr. Arthur Hartmann
a minimum of 10 cases under the supervision of experienced University of Applied Sciences in Public Administration Bremen (Germany)
mediators. During this phase problems may arise, two of them Contact +++ [Link]@[Link]
are to be mentioned here.

3.3
The first problem is that of the self-confidence of new mediators.
Some of them are so afraid of the responsibility that they ask the
supervising person to tell and show them everything, how to open
the mediation session, how to write the invitation letter, etc. This
creates difficulties, because experienced mediators realize that
there are no universal answers. It is also known that in some
situations the mediator must act intuitively.
The second and more important problem is how to dissuade Legal Provisions
unsuitable persons from applying to be mediators. This is closely
connected with the evaluation of the mediators’ work and behaviour. on Restorative
The rules of procedure for rejecting inappropriate applicants are
currently being elaborated.
For the abovementioned two and for other reasons PCM stresses
Justice in Germany
the importance of proper training. During our practice we also
noticed some other aspects which mediators must take into account:

• when and how to react in a very emotional situation;

• whether a lawyer should be present at the initial joint meeting;
• what to do when a criminal case gives rise to civil issues.

These and similar questions can arise to both inexperienced and

experienced mediators, who must seek to find the right responses.
3.3.1 General introduction
3.2.9 Conclusions
”Täter-Opfer-Ausgleich” (hereinafter TOA) is the quasi-official
Settlements between parties may significantly contribute to German term for restorative justice and victim offender mediation.
relieving the courts’ workload. They also mean that there is no TOA is on the one hand a practical concept developed by a grass-
need to examine evidence in criminal proceedings. Thus they create roots movement and the reform effected by it on the criminal justice
a chance for more cost-effective adjudication. But saving time and system and on the other hand a legal term defined in Section 46a
cutting costs are not the sole benefit. Settlements do not only of the German Criminal Code (Strafgesetzbuch, hereinafter StGB)
help the administration of justice, but the defendant also gets the and Section 10 subsection 7 of the Juvenile Criminal Court Act
possibility of having some influence over the final decision and a (Jugendgerichtsgesetz, hereinafter JGG). These two aspects have
chance to negotiate a lower punishment. The injured person gets to be kept in mind when discussing restorative justice and TOA.
a chance to receive compensation. The agencies responsible for Also, in an international context there is no single notion, no
conducting criminal proceedings get time to concentrate on more single type of process, and no single theory of restorative justice
serious or complicated cases. Closing the criminal proceeding with (Johnstone and van Ness 2007; UN Handbook 2006). Additionally,
a settlement is therefore not only beneficial for the administration of restorative justice is a developing concept which is changing over
justice and for participants in the proceedings, but also for society time. The concept of restorative justice can primarily focus on the
as a whole. nature of the reactions to an offence (the restorative outcome)
or on the procedure with which the outcomes are achieved (see
Johnstone and van Ness 2007; Walgrave 2009). In Germany, the
statutory definition of restorative justice is outcome-oriented, while
the practice is primarily procedure-oriented.

124 ////////////////////////////////// +++++++++++++++++++ 125

3.3.2 History of restorative justice in Germany
(2) in a case in which providing restitution for the harm caused
Elements of restorative justice could always be found in German criminal law. One example is the required substantial personal services or personal sacrifice on
“Adhäsionsverfahren” (Sec. 403 of the StGB), which provides the victim with a possibility to make a his part, has provided full compensation or the major part thereof
claim for financial restitution within the framework of the criminal procedure. Another example is to the victim, the court may mitigate the sentence pursuant to
Section 374 of the German Code of Criminal Procedure (Strafprozeßordnung, hereinafter StPO), which Section 49 (1) or, unless the sentence to be imposed on the
gives the victim the possibility to bring private charges against the offender for some misdemeanours offender is imprisonment of more than one year or a fine of more
including simple bodily injury, trespass and insult. Beside Section 374 of the StPO, only the public than three hundred and sixty daily units, may order a discharge.”
prosecutor can refer a case to a criminal court. For a criminal court to accept a private charge, it
is necessary for an arbitration procedure to have failed beforehand (Sec. 380 of the StPO). Another The legislator pursued with Section 46a of the StGB a number of
restorative element was included in German criminal law in 1953, when reparation became one of policies. In the first place, the interests and needs of victims were
the conditions for probation in adult and juvenile criminal law. Reparation and apologising are also strengthened in the framework of the criminal procedure. The
independent measures in juvenile criminal law since 1953. offenders were encouraged to respond to the needs of the victims
From the late 1970s, two tendencies prepared the ground for restorative justice. On the one hand caused by their crimes. In addition, the offenders were offered an
practitioners as well as researchers became disillusioned about the possibilities to socialize and opportunity to take responsibility for the offence in a voluntary
educate offenders by the means of criminal law, and on the other hand politicians, practitioners manner, to distance themselves in this way from the offence and
and researchers rediscovered the victims, who were for a long period regarded only as sources of to reduce their guilt in a legal sense. Section 46a of the StGB also
evidence. Step by step the legislator improved the rights and powers of victims to influence criminal expresses the belief that solving the personal conflict that caused
procedures. The state imposed on itself the duty to provide compensation for the victims of severe the offence or that was provoked by the offence creates or at least
crimes. The needs and interests of victims also became a relevant aspect in sentencing. In 1987, facilitates peace among the parties and beyond that between the
according to Section 46 of the StGB, the conduct of the offender after the offence, particularly his offender and the society as whole; also, it eliminates or reduces
efforts to pay restitution for the harm caused, as well as his efforts to reconcile with the victim became the need to rely on punishment as a means to balance the outcome
a factor to take into account in sentencing. In 1990, TOA was introduced into juvenile criminal law as a and effects of an offence. The provisions in Section 46a of the StGB
measure in Section 10 of the JGG and as a possible way of diverting and dismissing a case in Section also ensure that civil compensation for the harm caused by the
45 subsection 2 and Section 47 of the JGG. In adult criminal law TOA became part of the criminal law offence alone will not be sufficient to eliminate criminal liability.
for adults in Section 46a of the StGB four years later. From 1999 on, TOA was also included in the Especially rich offenders should not be offered an opportunity to
criminal procedure. Section 136 subsection 1 phrase 4 of the StPO obliges the courts and also the “escape” their offence and the resulting responsibility to the victim
public prosecutors and the police (see Sec. 163a subsec. 4 of the StPO) to inform suspected persons and society by paying money (BT-Drucks. 12/6853 S. 21; Supreme
already at the beginning of the first hearing about the possibility of a TOA if the case seems suitable. Court/BGH on 19.12.2002 – 1 StR 405/02 – published in StV 2003,
Section 155a of the StPO obliges public prosecutors and judges to analyze in every stage of the 273; HK-GS/Rössner/Kempfer Sec. 46a StGB Rn 6).
procedure whether a TOA could be appropriate and in suitable cases it is obligatory to offer TOA to The court has to take Section 46a of the StGB into consideration
victims and offenders, except if the victim refuses. Section 155b of the StPO gives a legal basis for the in every suitable case, otherwise an appeal to a higher court and
exchange of personal data between prosecutors, courts and VOM-schemes in the case of a TOA. In a cassation of the verdict is possible (see Supreme Court/BGH on
cases of a TOA, in adult criminal law it is also possible for the public prosecutors in cooperation with 17.01.1995 – 4 StR 755/94 published in NStZ 1995, 284; HK-GS/
the judges to drop a charge during the investigative phase or after accusation as set out in Section Rössner-Kempfer Sec. 46a Rn 39).
153a subsection 1 phrase 5 of the StPO. Section 46a of the StGB takes the following into consideration:
the effort to achieve reconciliation, and providing full compensation
3.3.3 The most important legal provisions on restorative justice in Germany or the major part thereof. Reconciliation is used in a wide sense,
including material and immaterial (for example emotional)
From a systematic point of view, the legal definition of TOA in Section 46a of the StGB is at the centre restitution whereas compensation means financial compensation.
of the regulation on restorative justice (see the text highlighted). Section 46a of the StGB is not restricted to specific offences. It is a
general rule for the sentencing of any offence including felonies like
robbery, rape and theoretically also murder or attempted murder
Section 46a of the StGB states: “If the offender (see Supreme Court/BGH on 12.07.2000 – 1 StR 281/00 published
in StV 2001, 230) as well as business crimes. The wording and
(1) in an effort to achieve reconciliation with the victim (Täter- the intended purpose of Section 46a of the StGB make it evident
Opfer-Ausgleich), has provided full restitution or the major that the provision should only be used where the offence injures a
part thereof for his offence, or has earnestly tried to provide natural or a legal person. Thus, there is no point in applying it, for
restitution; or example, in the case of drunk driving where there was no accident
and no actual danger to a concrete person or his/her belongings.

126 ////////////////////////////////// +++++++++++++++++++ 127

 Section 46a of the StGB allows the dropping of charges, except the frame of a mediation scheme but can also be arranged by the
if the sentence to be imposed on the offender is imprisonment judge or prosecutor and it can also take place spontaneously during
of more than one year or a fine of more than three hundred and a court session. Section 46a of the StGB is open for professional as
sixty daily units. Therefore, in about 80% to 90% of all convictions well as volunteer mediators, for conferencing, circles and also direct
in German criminal courts, theoretically a TOA could be the only communication between victims and offenders by letters, e-mail,
official reaction to an offence (see Heinz 2006). If the conditions to telephone or meeting each other. It allows new developments in
drop the charge are not fulfilled, Section 46a of the StGB provides the field of restorative justice and is not restricted to mediation or
a possibility to decrease the sentence according to Section 49 of conferencing.
the StGB. Section 49 of the StGB regulates specific reductions in More or less as a consequence of this approach, questions such
sentences. Generally, a sentence can be reduced by one quarter as the process of victim offender mediation, qualifications necessary
of the sentence that would otherwise be imposed. to mediate, the type of institutions that may offer mediation or other
Section 46a of the StGB only regulates the case where TOA restorative justice processes are so far neither regulated by 46a of
has taken place. The prosecutors and the courts have to inform the StGB nor by any other statute in German criminal law.
victims and offenders about the possibility of a TOA and they should Therefore it is presently impossible to say exactly how many cases
suggest using it in every suitable case, but they do not have a legal of TOA are carried out per year.
power to impose it. This possibility is only provided by Section 10 Because of Directive 2008/52/EC, which states standards for
subsection 7 of the JGG, which, as a result, was intensely criticized mediation in international civil cases that have to be transferred
and is scarcely used in practice. Outside the scope of this provision, into national law until 2011, the German legislator has very recently
offenders and victims cannot be obliged to take part in a TOA. started the preparation of a general mediation law. This law may
The two parts of Section 46a StGB concern two different include general standards for mediative procedures also in criminal
scenarios. Only the first is a TOA, the second regards a special cases as well as standards for the necessary training of mediators
form of financial restitution. TOA has, according to Section 46a (see Schmidt 2010 for details).
subsection 1 of the StGB, some characteristics in common with the
financial restitution under Section 46a subsection 2 of the StGB. References
However, only subsection 1 demands reconciliation on the basis of
a communicative process between victim and offender (Supreme • Dölling, D., G. Duttge and D. Rössner (eds.) (2008) Handkommentar zum
Court/BGH on 7.12.2005 – 1 StR 287/05 – published in NStZ 2006, Gesamten Strafrecht (HK-GS). Baden-Baden: Nomos Verlag
275 f.). Unilateral restitution paid by the offender without at least • Heinz, W. (2006) Konstanzer Inventar Sanktionsforschung, Das strafrechtliche
an attempt to involve the victim would not suffice for subsection 1, Sanktionensystem und die Sanktionierungspraxis in Deutschland 1882–
but could, however, fulfil subsection 2. Reconciliation in the sense 2006. ([Link]/rtf/kis/[Link]#:_Toc190516159) [Link]
of subsection 1 includes financial restitution as well as an emotional Entwicklung der zeitigen Freiheitsstrafe nach ihrer Dauer, Tabelle 6
recognition of the troubles and sufferings of the victim as well as all • Johnstone, G. and D. W. Van Ness (2007) Handbook of Restorative Justice.
other forms of immaterial restitution. The amount and nature of the Portland (OR): Willan Publishing: 5.
necessary restitution depends therefore on the needs and interests • Schmidt, S. I. (2010) Mediationsverfahren und Täter-Opfer-Ausgleich: Aktuelle
expressed by the victim. On the contrary, full compensation or the Entwicklung in Deutschland. TOA-Infodienst, no. 39: 37.
major part thereof under subsection 2 means full compensation • UN Office on Drugs and Crime (2006) Handbook on Restorative Justice
according to civil law. Subsection 1 is applicable if the offender programmes. UN Criminal Justice Series. New York: E-Book: 6, 103.
makes an honest and serious effort to achieve reconciliation and • Walgrave, L. (2008) Restorative justice, self-interest and responsible
tries earnestly to provide restitution whereas subsection 2 requires citizenship. Cullompton (UK): Willan Publishing
that the offender pays more than 50% of the restitution he/she owes
to the victim according to civil law. Documents
As important as the requirements of a TOA set out in Section 46a
StGB are the circumstances which are not specified by law. The • Directive 2008/52/EC of the European Parliament and of the Council (May 21
mentioned communicative process between victim and offender 2008) on certain aspects of mediation in civil and commercial matters
needs not to be attended by a mediator, lawyer or any other third
party. For the purposes of Section 46a of the StGB, any form of
communication between the victim and the offender is suitable.
The communicative process can happen in direct communication
between the victim and the offender as well as indirect
communication facilitated by a third person. It can be organized in

128 ////////////////////////////////// +++++++++++++++++++ 129

 Dr. Edit Törzs Figure 5 shows how VOM cases were distributed between the
Probation Service – Office of Justice (Hungary) three crime categories defined above in 2007.
Contact +++ torzse@[Link]

3.4
16% Figure 5
28% The distribution of VOM cases
between crime types, 2007
(Source: Office of Justice)

Mediation and Traffic-related

the Mediation Procedure 56% Against the person

Against property

in Hungary for
Adult Offenders [Link] Legal background in Hungary and in the European Union
Under Article 10 of Council Framework Decision 2001/220/JHA on
the standing of victims in criminal proceedings, each Member State
The introduction of VOM was first
specified as a legislative task in
Hungary in section III/A/3 of the
must seek to promote mediation in criminal cases, and they must National Strategy for Community
3.4.1 Legal background ensure that any agreement between the victim and the offender Crime Prevention (2003).
reached in the course of such mediation in criminal cases can Parliament fulfilled its legislative
[Link] In which criminal cases can mediation be applied? be taken into account. This obligation under EU law was highly duty under the Framework
Victim offender mediation (VOM) can be applied in both juvenile and significant in the development of criminal mediation in Hungary. Decision in the summer of 2006
adult criminal cases. The legislator defined the kinds of cases, the by passing an amendment (Act LI
prosecutor or the judge is entitled to refer to mediation (see Figure 5). of 2006) to the Criminal Procedure
According to the applicable rules, the case can be referred to mediation [Link] The referral of a case to mediation Code (Act XIX of 1998). The
if the crime is A case can only be referred to mediation if the criminal procedure has amendment added a set of rules to
actually started. The prosecutor is the first person in the procedure the code to regulate the mediation
• a crime against the person (Criminal Code, Chapter XII Titles
I and III), or
who may order the suspension of the procedure and refer the case to
mediation as a diversionary measure. Both the suspect and the victim
procedure.
The detailed rules applicable to
• a traffic-related offence (Criminal Code, Chapter XIII), or (or their legal representatives) are entitled to initiate a mediation mediation activities are included
• a crime against property (Criminal Code, Chapter XVIII), procedure, but the prosecutor also has the right to initiate it ex officio in Act CXXIII of 2006 on Criminal
• unless the particular crime is punishable by more than five years
of imprisonment.
and to request the offender’s and the victim’s consent.
If no referral is made for mediation in the prosecution phase of the
Mediation, which was passed by
Parliament on 18 December 2006.
procedure, the court of first instance may also decide to refer the The implementation rules of
VOM is excluded by law in the following cases: case for mediation. However, no ex officio referral may be made in mediation activities are defined in
this phase; the judge may only order mediation if one of the parties Minister of Justice Decree 1/2007
• if the offender is a habitual offender committing a similar crime
for the second time or committing a crime more than twice;
requests so. More than 80% of the cases are referred to mediation by (I. 25.) and 58/2007 (XII. 23.).
prosecutors; therefore the method has definitely become a measure
• if the offender commits the crime as a member of a criminal
organisation;
of diversion.
Under Section 221/A of the Criminal Procedure Code, the
• if the crime results in death; prosecutor or the judge must check whether the offender has plead
• if the crime is committed intentionally
• during the term of a suspended sentence;
guilty during the investigation, whether he/she agrees to and is
able to compensate the victim for the damage caused by the crime,
• after the offender has been sentenced to an unconditional term whether both the suspect and the victim have given their consent to
of imprisonment and before the unconditional term is served; the referral to mediation and whether it is possible to order mediation
• during probation; or on the basis of the nature of the crime, the method of committing
• during the term of postponement of accusation. the crime and the person of the offender.

130 ////////////////////////////////// +++++++++++++++++++ 131

3.4.2. The main characteristics of the mediation procedure will bring a judgment and sentence the offender, but will have the
power to reduce the punishment without any limitations. There
[Link] Mediators in criminal cases is no such distinction for youth offenders; for them, a successful
Since 1 January 2007, mediation procedures in criminal cases have been carried out by the probation mediation procedure always means that the case is closed.
officers providing mediation services at the Probation Service (a separate department of the County/ If the mediation procedure is unsuccessful (no agreement is
Budapest Offices of Justice) of the area the criminal court or the prosecutor has competence over. made, or it is not performed), the parties will have the same status
Since 2008, attorneys who have received special training and that have a contract in place with the they have had in the original procedure and will not have the right
Office of Justice for this purpose may also act as mediators. to apply for mediation again.
The mediators must attend at least two 30-hour courses in mediation, which include both theoretical
and practical training, and then they must also complete an approximately 90-hour theoretical course on 3.4.3. Case numbers since the
restorative justice. They must also participate in the mentor programme, attend regular case discussions introduction of mediation in 2007
and meet with their supervisor. There are over a hundred specially trained mediators now in Hungary
who provide criminal mediation services. 60 of them are probation officers and 42 of them are attorneys. In the year it was introduced, VOM was applied in 2.451 cases. In the
next year (2008), the number of referrals rose by 21%, which means
[Link] The steps of the mediation procedure that mediation was ordered in 2.976 cases. However, the proportion
After it has been checked whether the statutory conditions are met, and after a personal hearing of of mediation among all indictments is still low when compared to
the parties where they have given their consent, the prosecutor or the court makes a decision on other European countries’ figures. In 2007, mediation was applied
referral and suspends the criminal procedure for a period of maximum 6 months. in only 1.2% of all indictments and it has not grown by much since
The mediator contacts the parties following receipt of the decision on referral for mediation and then, as it currently stands at 1.5%.
summons them to the mediation session within a period of 15 days. The meeting, which usually takes As mentioned earlier, 88% of mediation cases involved an adult
about 2 to 3 hours, provides the parties with an opportunity to explain what effect the crime has had offender, which means that the proportion of juvenile cases in all
on them, the offenders may express that they take responsibility for the criminal act and they also mediation cases is lower than the proportion of juvenile criminals
have a chance to apologize. Also, the parties can agree on compensation for the damage caused by compared to all known offenders. One reason behind this must be
the crime. If the parties reach consensus on the content of the mediation agreement, the mediator that the prosecutor has more diversion methods and the court has
puts the terms of the agreement in writing at the meeting and then it is signed by each party. more alternative sanctions available for juveniles than for adults.
The next phase is the performance of the agreement. The mediator monitors the performance of There are vast differences between counties both in the total
the agreement and sends a report to the prosecutor or the court on whether the agreement has been numbers of mediation cases and in the proportion of mediation cases
performed. If the agreement is performed satisfactorily, the court or the prosecutor applies the new among all criminal cases as shown below (see Figures 6 and 7).
rules on “active repentance” as defined in Section 36 of the Criminal Code.

[Link] Additional characteristics of mediation in Hungary Baranya 238 Figure 6

Bács-Kiskun 144
In Hungary, there are no cases when it is mandatory to apply VOM by law. VOM is always provided to Number of cases referred
Békés 78
the parties free of charge. In Hungary, legal entities can also fall victim to a crime, therefore not only Borsod-Abaúj-Zemplén 190
to mediation in 2008 in
natural persons may participate in the mediation procedure as victims. Csongrád 214 each county
Mediators use the technique of direct mediation: the mediation takes place in the form of a personal, Fejér 148 (Source: Office of Justice)
face-to-face meeting between the victim and the offender, that is, they are at the same place at the Budapest 447
Győr-Moson-Sopron 60
same time. Compensation can be provided in any form if it is not immoral or illegal; it all depends
Hajdú-Bihar 155
on the parties’ agreement. This means that material compensation, a personal service, the repair of Heves 122
the damage caused, or the offender’s promise to undergo treatment or therapy for crime prevention Jász-Nagykun-Szolnok 138
purposes are all acceptable. Komárom-Esztergom 96
Nógrád 42
Pest megye 335
[Link] The effect of a successful mediation procedure on the criminal procedure
Somogy 122
I would like to stress that the mediation efforts are not considered successful when the deal is struck; Szabolcs-Szatmár-Bereg 94
the mediation is a success when the agreement is performed. The legislators defined different legal Tolna 68
consequences for a successful mediation for adult offenders depending on the severity of the crime. Vas 71
According to the Criminal Code’s rules on active repentance, if an offender pays damages to the victim Veszprém 161
Zala 54
or otherwise compensates the victim and the crime is a crime against the person, a traffic-related
crime or a crime against property punishable by maximum 3 years of imprisonment, the offender will

50

100

150

200

250

300

350

400

450

500
no longer be criminally liable. If the crime is more serious, but is punishable by maximum 5 years of
imprisonment, the punishment may be reduced without any restrictions. In the latter case, the court

132 ////////////////////////////////// +++++++++++++++++++ 133

 References
Baranya
Bács-Kiskun
4.00%
1.49%
Figure 7
Békés The proportion of mediation • Iványi, K. (ed.) (2008) A büntető ügyekben alkalmazható közvetítői tevékenység
1.31%
Borsod-Abaúj-Zemplén 1.33% referrals among all accusations bevezetésének tapasztalatai Magyarországon. (Experiences of introducing
Csongrád 2.79% in each county (2008) mediation applicable in criminal cases in Hungary) Budapest: National
Fejér 3.11% (Source: Office of Justice) Crime Prevention Board ([Link]
Capital 1.04% [Link])
Győr-Moson-Sopron 0.74%
Hajdú-Bihar • Hatvani, E. (2007) A büntető ügyekben alkalmazható mediáció magyar
0.70%
Heves 3.33% szabályozásának szükségessége és indokai, bevezetésének előkészületei
Jász-Nagykun-Szolnok 2.01% Magyarországon. (The need and reasons for mediation applicable in criminal
Komárom-Esztergom 2.03% cases, and preparing its introduction in Hungary) Kriminológiai Közlemények
Nógrád 1.11% 64, Budapest: Hungarian Society of Criminology: 9-17.
Pest megye 2.46%
Somogy 2.36%
Szabolcs-Szatmár-Bereg 0.79% Documents
Tolna 1.75%
Vas 1.51% • Council Framework Decision 2001/220/JHA on the standing of victims in
Veszprém 2.50% criminal proceedings (15 March 2001) ([Link]/LexUriServ/
Zala 1.31%
[Link]?uri=OJ:L:2001:082:0001:0004:EN:PDF)
0.50%

1.00%

1.50%

2.00%

2.50%

3.00%

3.50%

4.00%

4.50%
• Parliamentary Resolution no. 115/2003 (X. 28.) on the National Strategy
for Community Crime Prevention ([Link]
html?pid=19)
It should be noted that while the total number of mediation cases is very high in the capital, their
proportion compared to all accusations is lower than the national average (1.5%). To put it another
way: an offender and a victim are six times more likely to be referred to mediation in Baranya county
than in Hajdú-Bihar county (see also article 5.2 in this publication).
In 2008, 2.308 cases were closed with the result that an agreement for active repentance has been
made, which is 80% of the total number of cases referred to mediation (2.872). We have also looked
at the percentage of performed agreements in the same period. This is shown in Figure 8.

Agreement carried out

8%
1% Agreement not carried out

91% Postponed accusation

Figure 8
The proportion of performed
mediation agreements in the
cases closed in 2008
(Source: Office of Justice)

Figure 8 shows that over 90% of the agreements have been performed, and this is a promising
figure given the fact that probation officers can only monitor the performance of the agreement but
may not urge or force the offender to perform it due to the voluntary nature of the procedure. The
success rates are similar to international data.
In conclusion, mediation has become acknowledged and used in Hungarian legal practice and the results
demonstrate that mediation will be a successful method in Hungary for enforcing victims’ rights in the criminal
procedure. I believe that there are no legal or capacity-related obstacles to more frequent use of mediation,
however, wider knowledge and willingness of legal practitioners to apply this method would be necessary.

134 ////////////////////////////////// +++++++++++++++++++ 135

 Prof. Dr. Effi Lambropoulou 3.5.1 Introduction
Panteion University of Social and Political Sciences
Contact +++ elambro@[Link] From the beginning of the new millennium, new criminal laws
with emphasis on the victim have been issued in Greece. This
development on a national level was embedded in a global

3.5
movement, which involved major international organizations32
and affected countries all around the world. Since the mid-1990s,
issues such as trafficking and cyber crime, domestic violence,
child assault and battery, have more or less become focal points
of the national political agenda, the debate of experts (Alexiadis
1992, 1996; Maganas 1996; Artinopoulou and Maganas 1996; see
also the early works of Andrianakis 1971/2001) and the practice of

Alternative Dispute professionals. However, only a minor amount of systematic research

on victimization, based on medical reports on children had been

Resolution and Restorative carried out (Agathonos-Georgopoulou 2001; Lambropoulou 2005:

217). The situation of other social groups such as women and the

Justice Schemes for Juvenile elderly had only occasionally been investigated (Spinellis 1997:
209–211). The only large-scale victimization study of the general

Offenders in Greece population is the one that was carried out to make amends for
Greece’s absence from the first part of the International Crime

– Potential Limitations Victim Survey (ICVS) (Spinellis et al. 1991; Spinellis 1997: 212–
222). The legislative developments were therefore explained by

and Open Questions “progress” and “the evolution of internet technology”, and were also
justified by “human rights” and “social exclusion” rhetoric (Spinellis
1997: 297–307; Jansson et al. 2007: especially chapters 4 and 5).
Following the trend of recent years and the country’s European as
well as international commitments to promote mediation in criminal
cases and alternative dispute resolution (Walgrave 1995, 2001;
Alexiadis 2007), laws and regulations necessary to comply with them
[CoE – CM R(99)19; Council Framework Decision 2001, arts. 17 and
18; UN 2000; UN – ECOSOC Resolution 2002/12]33 have come into
force and have been integrated into the national legislation. Also,
existing legislation has been reformed [CoE 1996; CoE Rs(85)11;
(87)18; (87)20; (87)21; (88)6; (92)16; Rs(95)12; (98)1].
Thus, in 2002, Act 3064 on Trafficking, Child Pornography and
Every Form of Economic Exploitation of Sexual Life in General
was issued (Tsaklaganou 2002; see also UN – CESCR, E/2005/22;
E/C.12/2004/9; sections D and E of U. S. Department of State 2008).
In 2007 a new act (3625) regulating child pornography was passed
in order to adapt to the United Nations’ Optional Protocol of the
Convention on the Rights of the Child (2000; see also UN – CRC
1989; Agathonos-Georgopoulou 2001). It widened the definition of
sexual exploitation by encompassing all forms of sexual exploitation
of children through inclusion in pornographic material, comprising
the production, distribution, selling on the internet and possession 32
E.g. UN Declaration of Basic Principles
of such materials, as well as sexual tourism, under the umbrella (Resolution 40/34 1985); UN Vienna
Declaration (Resolution 55/59 2000). From
of the protection of children’s privacy (CoE, European Convention the EU see: CoE – CM R(99)19 and CoE –
on the Exercise of Children’s Rights 1996; see also Act 2101 of CEPEJ(2007)13.
1992). In relation to this, the Greek Civil Code [hereinafter GCiC, 33
Similarly in civil matters CoE – CM
Sec. 57(1)] provides the victim the right to ask through his/her legal R(2002)10.

136 ////////////////////////////////// +++++++++++++++++++ 137

 representative for the prohibition of the circulation and future use 3.5.2 Forms of restoration and reconciliation in Greek criminal law
of the material. The child/minor also has a right for compensation
for any harm caused to him/her by the pornographic images. [Link] Historical overview
In the meantime, the release of President Decree (PD) 131/2003 Restitution is very well known in the Greek legal culture as well as in the informal dispensation of
established the protection of e-consumers (e-commerce, distant justice, not only in ancient times but later on as well (see mainly Pantazopoulos 1993, 1994). During
selling). It provides for the non-judicial settlement of consumers’ the Byzantine time, compensation had a reconciliatory, restorative and non-monetary form. Restitution
disputes [Sec. 16(8) according to previous Act 2251 of 1994 and for resolution of disputes reached its height during the four centuries of Ottoman rule. Initially Greeks
secs. 1134 and 14(3) of the PD], and a code of ethics covering sellers, avoided going to the Ottoman courts, and settled their disputes through arbitration, namely victim
the responsibility of intermediaries who provide e-services, etc.35 offender mediation (which also involved the victim’s and the offender’s family). The clergy and eminent
In October 2006, Act 3500 was issued, regulating the consequences citizens acted as mediators. In the course of time this informal adjudication was established quasi
of domestic violence and introducing victim offender mediation (VOM) formally and the representatives of the communities only asked for ratification of the community
(Ministry of Interior et al. 2005; 2007). Act 3488 of 2006 criminalized decisions by the ottoman courts/judges in certain cases, paying an amount of money as tax. The law
harassment along with sexual harassment. This was carried out in applied was that found in the famous codifications of the Byzantine emperors. People who appealed
the context of changes effectuated by the Directives 2002/73/EC and to ottoman courts were branded as “sly traitors” or “enemies of the country” (Pantazopoulos 1994:
2006/54/EC of the European Parliament to the Council Directive 76/207/ 16; Manoledakis 2000) and were sometimes even excommunicated. The compensation for the harm
EEC of 9 February 1976 on the “Implementation of the principle of equal was awarded either directly to the victim or symbolically to the community (community service).
treatment for men and women as regards access to employment, This type of restorative justice was maintained up to the 19th century, even during the years of the
vocational training and promotion, and working conditions” (European Revolution (1821–27). It was abolished some time after the constitution of the New Greek State along
Commission, Unit V/D.5 1999; UN – CESCR 2005). with the organisation of local governments and communities by the Bavarian regency, since it was
Until then, the punishment of sexual harassment had been based regarded as outdated and not in line with a centralised western-style state (Pantazopoulos 1993:
on the sections of the criminal law protecting sexual life, being 40 and 75). Nevertheless, monetary restitution/compensation based on civil law (secs. 914 and 932,
perceived either as a violation of sexual freedom or as an assault GCiC) continued to be widely used.
(physical harm), as well as a civil wrong for which the target/victim The idea that harm caused by violation of the personal rights of the victim also insulted the state
may sue for damages or any harm including mental distress due to and the society as a whole protected by the prosecutor dominated. This means that by harming
the assault. Also, equal treatment before the law and equal rights the victim, the offender also indirectly harmed certain legal values of the whole society. Thus
for men and women belong to the fundamental rights referred to the victims’ rights were gradually separated from criminal law and found their protection in civil
among the first sections of the Constitution [Sec. 4(1)–(2)]. law. The civil compensation aspect of punishment remained untouched. This is the reason for the
In the new act (Act 3488 of 2006) both forms of harassment “reflect institution of civil prosecution, which prevailed during the 20th century, despite the fact that it never
34
According to Act 2251 of 1994, Section 11.
gender discrimination and are prohibited” [Sec. 4(2)]. According to played a significant role.
35
Directives 2000/31/EC on e-commerce it, “sexual harassment” means “every kind of undesirable behaviour,
and 2002/58/EC on privacy and electronic
communications; 97/7/EC on distance
either verbal or non verbal, physical or sexual, aiming at, or [Link] The present situation – Formal practices
selling. resulting in the offence of an individual’s dignity, especially through Although there are no organised programmes for restitution in Greece, the existing law, which is similar
36
Acts 3064 of 2002; 2928 of 2001; 1805 of
the creation of an intimidating, hostile, degrading, humiliating or to the French-Italian “action-civile”,38 offers several opportunities to satisfy the victim’s claims.39 The
1988; see also CoE – CETS no. 185, 2001 offensive environment” [Sec. 3(1) c–d]. victim may claim compensation from the opposing party (the party charged with a crime) in a separate
which is not yet ratified (4/6/2009).
For the prosecution of sexual harassment the victim/plaintiff needs civil lawsuit, or within the criminal proceedings. In the latter case, the victim becomes the subject of
37
“Organization and operation of to file a complaint. The offence is punished with an imprisonment the criminal trial and has the complete rights of a plaintiff, namely to be informed about his/her case,
telecommunication”: issued regulating
amongst others more thorough protection
ranging form six months to three years and with a fine of at least to participate actively in the trial through his/her attorney etc., and to allege the defendant’s guilt.
of personal data of telecommunication users EUR 1.000 [Sec. 16(4)]. Also, the accused/defendant has the burden However, this possibility is used only rarely and has more of a symbolic function, because
(previous Act 2472/1997), followed in 2008
of proof in the civil trial (Sec. 17 of Act 3488 of 2006). Mediation is set
•
by Act 3674.
out to be used in all forms of unequal treatment (secs. 12 and 13 of the convicted persons usually cannot pay,
“Action civile” is a lawsuit for the restitution
•
38
Act 3488 of 2006). because of the long time needed for the court to reach an irrevocable decision, and
•
of a victim (of prejudice ensuing or not) from
a violation of criminal law. The lawsuit can Similar obligations to incorporate EU directives applied to the vast the uncertainty of the judgement.
be brought either to civil or criminal courts
if the offence has violated a private interest
majority of “new” crimes, such as trafficking (secs. 323A and 351), sexual
together with public order. Therefore, civil exploitation (secs. 349 and 350), cyber crime (secs. 386A, also 370B, 370C Additionally, the court can grant the suspension of a prison sentence for up to three years without
action can be filed in parallel with public
complaint.
of Act 1492/1950, the Greek Penal Code, hereinafter GPC),36 domestic probation (discretionary, Sec. 100 GPC),40 which cannot be lower than three and longer than five
violence [see CoE – CM R(98)1; Act 2867 of 2000;37 also Papadopoulos years [Sec. 100 subsec. (1)b point 2 GPC], if after the examination of the defendant’s previous life, it is
39
Personal “moral” – psychological or
mental harm; physical injury, or damage to
2007]. All of them, apart from certain forms of domestic violence (i.e. established that due to the conditions under which he/she committed the crime and considering his/
tangible property. marital rape), had already been regulated in sections of the GPC within her character, imprisonment is not necessary to prevent him/her from committing further crimes. In
40
Up to two years the suspension is
various groups of crime, meaning that good legal standards had already such a case, the court must also take into account the behaviour of the offender after the crime and
mandatory (Sec. 99 GPC). been ensured before the obligation to incorporate the EU directives. whether he/she has shown remorse and genuine willingness to restore the consequences of his/her

138 ////////////////////////////////// +++++++++++++++++++ 139

 offence (Sec. 100 subsec. (1)b point 2 GPC]. Suspension of the prison years [Sec. 82(6), see also points 7–11 GPC; see also Alexiadis
sentence still depends on the payment of court costs, restitution and 1992]. Similar problems with those of the adults are expected for
just compensation of the victim. Furthermore, a prison sentence the enforcement of community service upon juveniles.
from three to five years can be suspended under probation if the While the legal context exists, it is now also necessary to
defendant fulfils certain obligations, such as financially supporting support the enforcement of the regulation and to register their
or acting as the guardian of other persons [secs. 100A (2)f and 106(3) use separately in order to have an overview of their effectiveness,
GPC]. Such a person could for example be the victim. difficulties and future improvement [see also secs. 65(2), 68 and
It is worth mentioning that for several decades (1951–1994) the 248(2) of the Greek Penal Procedure Code, hereinafter GPPC].
fulfilment by the prisoner of his/her obligations towards the victim
“as much as he/she could”, was necessary for release on parole [Link] The present situation – Semi-formal practices
according to the law [106(1) GPC]. This meant that the expiry of the Apart from the previously described solutions, mediation and
required minimum period of custody was not enough for an earlier alternative dispute resolution (ADR) (Lambropoulou 1999: 312–397)
release. The rule was abolished in 1994 (by Act 2207) and now have also been carried out in Greece, on a semi-statutory basis in
applies only to those convicted for high treason [Sec. 106(2) GPC, the context of the “proactive” (according to one view) or “mediating”
Sec. 106(1), see also Sec. 66 subsec. (1). point 3 GPC]. role (according to another) of law enforcement agencies.
Several years ago, an additional provision was included in the act, Firstly, in offences prosecuted after the filing of a complaint,
which can result in the suspension of imprisonment under probation police officers may attempt to bring together the offender and the
[Sec. 100A(3) GPC] or release on parole [parole, 106(2) GPC]. This victim for negotiation in order to reach an agreement out of court.
is only applicable if the defendant is willing to compensate the The police officer usually places emphasis on the consequences
victim’s losses. of the prosecution (costs, length etc.) in order to convince both
Additionally, in the sections 79(3)d, 82(8)b, 84(2)d of the GPC sides to reach an agreement and avoid sending the case to the
the offender’s remorse and his/her willingness to eliminate the prosecutor.
consequences of his/her crime by compensating the victim, are Secondly, the prosecutor can advise those in conflict to agree
taken into consideration by the court for the determination of the on a compromise. In the case of petty offences, after registering
sentence and its mitigation. Finally, as already mentioned, the the events, the prosecutor sends a written order to the police
remorse of the offender and the full restitution of the damage department of the place where the victim is located to mediate
to the victim [see i.e. secs. 379, 404(6), 405(2) GPC] cancel the and find an acceptable solution. He/she keeps the most serious
punishable part of the criminal act; in other words withdraw the cases for mediation for him/herself (Sec. 213 GPPC). It is claimed
punishment for the crime. Partial restitution annuls the punishable by an older piece of research in 1993–1994, that 100 to 150 of such
offence accordingly. cases were registered by the public prosecutor’s office in Athens;
The GPC (Sec. 77) also provides that in the case of punishment 80% of them were settled this way, either by the prosecutor or the
with a fine and the obligation to compensate the victim, if the police (according to Sakkali 1994: 222).
incomes and property of the offender are not sufficient for both, Additionally, the prosecutor can rely on the “proportionality
he/she has to give priority to the compensation of the victim. principle”, namely balancing the costs of the litigation to the offender
From the above, it is obvious that the GPC provides several and the benefits to society and the victim, in order to decide against
possibilities for restitution/restoration. It also provides the prosecution. Finally, according to the Code on the Organization of
possibility to those convicted persons whose sentences have been Courts [secs. 25(4) of Act 1756 of 1988] the prosecutor also has the
converted to community service of offering their service to the right to reconciliate parties in a conflict, for reasons of prevention.
victim if he/she is disabled and both parties are willing to accept Thirdly, just before the hearing of the case at the court, the judge
this solution [Sec. 82(8)b GPC]. may try to reconcile the parties in order for the complaint to be
After the initial long-standing unwillingness of welfare withdrawn. If the parties reach a peaceful settlement in the conflict,
organizations to participate in the process of community service, the prosecution is definitively discontinued. An impartial way is for
they have recently started to cooperate with the courts. There both to accept responsibility, terminate the disagreement by mutual
are several practical problems including the form of contracts, consent and compensate each other (car accidents, violation of
employees’ rights, insurance etc. of those working in the community traffic law and safety etc.).
that need to be dealt with (Sec. 64 GrCorrectional Code) (cf. Section 393(2) of the GPC provides the possibility for those
Neustart, 2008/09). Community service has been introduced for accused of specific crimes (i.e. certain types of theft and fraud) to be
adult offenders since 1991 [Sec. 82(7)–(8) GPC], but in practice, it released in the case that they fully compensate their victim(s) before
only started after 2000. Originally community service was only an the court hearing. In such cases, mediation is possible although we
option for sentences of up to 18 months but this has risen to three do not know how often it is used.

140 ////////////////////////////////// +++++++++++++++++++ 141

 3.5.3 Innovations for juvenile offenders intention of the minor to make amends and asks for the consent
of the victim.
[Link] Legal context and scope As previously referred to, Act 3500 of 2006 introduced VOM
The introduction of restorative schemes (Braithwaite and Mugford for cases of domestic violence (secs. 11–14) (Haralambakis
1994) for juveniles was part of a long-standing reform attempted 2006; Giovanoglou 2008a; Artinopoulou 2009). According to the
by Act 3189 of 2003 on the Reform of the Penal Legislation for act, mediation can be used with juveniles as well, but the whole
Juveniles and Other Regulations (Courakis 2004a: 288; 2004b; proceedings are to be carried out by the competent public
Spinellis and Tsitsoura 2006; Alexiadis 2007). The new act, which prosecutor [Sec. 11(3)].
amended sections of the GPC and the GPPC,41 Restitution [compensation; Sec. 122(1)f GPC] can for example
mean the return of stolen goods to the victim, making a payment to
• brought into use diversion, the victim for the harm caused or reparation of the damage by any
• increased non-custodial measures, and other means, and can be combined with other sentences/orders,
• promoted due process rights [secs. 4(2) and (5)–(7)]. specially mediation or community service.
Community service [Sec. 122(1)g], aims at increasing the minor’s
It is said that it indicates an emancipation from the “paternalistic” responsibility and sensitivity through regret, as well as supporting
character of the juvenile justice system, being the result of a his/her integration into society. Both measures are carried out
long debate, and a trend towards a more justice-based model and monitored by the Juvenile Probation (otherwise known as
[Declaration of Leuven 1998, esp. under 4, (1.3), (5.1), (7.1); see Supervisors’/Social) Service.42
also the Introductory Report of the Act 3189 of 2003]. The competent prosecutor is responsible for enforcing the courts’
The act introduced victim offender mediation, compensation decisions on restitution and community service. If an imposed
and community service through diversion (Sec. 45A GPPC) and measure is not carried out (i.e. refusal by a party/defendant(s) to
as educational measures/orders [Sec. 122(1) GPC]. Alternative fulfil restitution or community service orders), it can be replaced
dispute settlements are possible in cases where an application [cf. sec. 1 subsec. (5) point. 1]. In such cases, the juvenile probation
by the plaintiff is necessary as well as in ex officio prosecutable officer usually suggests an alternative and/or the public prosecutor
offences (see more in Pitsela 2004: 190–194; Zagoura 2008; cf. brings the case to court again for examination and discussion [Sec.
Troianou-Loula 1997: 461–535). 4 subsec. (2) point 3] (Papadopoulou 2008b: 2).
Specifically, according to Section 45A GPPC (diversion from The Explanatory report (Preamble) of the Act 3189 of 2003 about
prosecution), if a minor commits a petty offence or a misdemeanour the criminal reform to legislation concerning juveniles states that
(usually, theft, assault, vandalism etc.), the district attorney may mediation is introduced to bring the offender closer to the victim
refrain from prosecution (filing a charge), if he/she considers that and to make him/her assume responsibility for his/her offence, to
adjudication and prosecution are not necessary to prevent the young provide restitution for the victim, and to achieve a positive impact
offender from committing further crimes (discretionary refraining on the juvenile.
from prosecution). Diversion from prosecution may be accompanied Restorative schemes as alternative sentences in juvenile
by one or more educational measure [in extraordinary cases, Sec. criminal law show that they focus more on the outcome
122(2) GPC] and the payment of EUR 1.000 to an NGO, a public (compensation, avoiding the use of more severe sentences) than
welfare institution or a non-profit legal entity [Sec. 122(1) GPC] the (reconciliation) process (see also Papadopoulou 2008b: 2).
(cf. Moshos 2005). All three alternatives can also be applied by a Whether they intend to compensate the victim, or to the support
juvenile court as educational measures to minors of 8 to 18 years the young offender, is a question that cannot easily be answered (cf.
old [Sec. 122(1) GPC]. The act makes no mention of the consent Papadopoulou 2008b).
of the parties, since it is the decision of the court; yet experience
shows that consent is always sought (Pitsela 2004: 191 with footnote [Link] Law in action – Implementation
183, and 271–273). The Juvenile Probation Service of the Ministry of Justice (Act 378
Victim offender mediation [Sec. 122(1)e GPC] takes place during of 1976; PDs 49/1979 and 195/2006) monitors the implementation
the trial, with the involvement of juvenile supervisors (otherwise of the community treatment of offenders (educational measures)
known as juvenile probation officers). The officer cooperates with – including restorative orders – according to the court’s decision,
41
I.e. sections 121-133, 18, 51(1), 54, 114c, the minor so that, if reasonable and fair, he/she offers an apology supports the juveniles and their families or care person, and
360(1), 409b of GPC; sections 27(1)b, 113,
282(5) of GPPC.
to the victim, and further facilitates the parties’ agreement to terms prepares the social enquiry report during the stage when the
of settlement. This is mostly used in forms of compensation for loss juvenile is questioned. The pre-trial social inquiry reports refer
42
The terms supervisors and probation
officers, as well as − service, are used
caused by the young defendant to the victim. During the hearing to the minors’ personality, home background, current and past
alternatively. of the case, the court carefully examines whether it is the true social circumstances and the offender’s need and motivation

142 ////////////////////////////////// +++++++++++++++++++ 143

 to treatment or other alternative forms of non-custodial care. undermining the purpose of restorative justice (Acorn 2004; cf. Braithwaite 2006; also Giovanoglou
The officers’ devoted, thorough work and their compliance with 2007a: 409–412; 2007b; Papadopoulou 2008a).
relevant statutory and organizational norms is a must for this. The As far as it is known, no training or educational programmes on restorative justice have been offered
assessment carried out by the officers is also used by the courts in to public prosecutors and (juvenile) probation officers. Recently legal practitioners (mostly lawyers)
determining appropriate sentencing (Mott 1977). have participated in courses for mediation run privately.44
Formally the probation officers are only involved in so far that The most serious problem is the lack of guidelines and information about the procedure. There
they support the judge and the juvenile court (Troianou-Loula 1999); are no bylaws or circulars that clarify the process to be followed, the aims and objectives of the new
they do not act as extra judicial or court mediators. schemes and their relationship with the formal criminal justice system. This creates scepticism and
According to some research based on information provided by the unwillingness on the part of the judges and prosecutors who have to justify their decisions without
Juvenile Probation Service of Athens and Thessaloniki (the capital access to evidence on the basis of the plaintiff’s statements and the social inquiry report of the
and the second biggest city of the country) the new restorative probation officer. In this respect their unwillingness to rely on the use and effectiveness of mediation
measures were ordered by juvenile courts and prosecutors in very for criminal cases can be understood.
few cases between 2003 and 2006 (Papadopoulou 2008b: 3) (see Funding issues in relation to organisational infrastructure problems, lack of staff and trained staff
the text highlighted). are serious obstacles and cannot be ignored. Even if the new schemes have the support of several
criminal justice practitioners and academics, there is still a long way to go before they operate in a
satisfactory manner.
[Link] Preliminary evaluation The attitude of probation officers towards the schemes also seems to be positive, although at a
Out of 1.288 educational measures The introduction of restorative programmes in the country is part of conference in 2008 the juvenile service stressed among others the need for training and infrastructural
imposed on minors by the an effort to reduce court case loads and simplify criminal litigation.43 support and their extreme overload (17 officers for Athens and Greater Athens).45
juvenile courts of Athens, only 9 It also corresponds to recent trends [Hoyle and Zedner 2007; see In a personal interview with a juvenile supervisor who has been working for over 10 years in the
(0.7%) were VOM, restitution and also CoE – CM R(2008)11]. Similarly, the improvement of victims’ Probation Service of Athens, the increase in the severity of the crimes and the high number of
community service, while during rights within the context of the penal procedure has been largely foreigners without permanent residence was also underlined, a situation which makes their supervision
the same year, diversion from affected by the country’s EU commitments [CoE – MJU-26 (2005) very difficult and it makes less and less sense for the officers to suggest light measures instead
prosecution (Sec. 45A GPPC) was Resolution 2; CoE – CM R(2006)8]. of a punishment. Moreover, in the case of extra-judicial forms there is no way of making sure that
only ordered in 15 cases. Between It is said that restorative justice schemes have been put into use measures will be followed or that the minors can be made to follow them.
2005–2006 only community service without a previous thorough study on the forms and the structure
was imposed, and that only in one of their implementation, and how the local conditions could assist
case (0.1%) out of 933 educational or counteract the measures’ implementation (Papadopoulou
measures applied during this 2008b: 4). This is true, but it is dubious that even if such a study
year. The situation in the Juvenile had been carried out, the implementation of the measures would
Probation Service of Thessaloniki be any different, since the country does not take an active part
Conversion of prison sentence
is presented by the research as in the creation of measures in the European forums. Therefore,
Suspenision of prison sentence

2006-2007
being a little better, although no the schemes have encountered various (practical/technical and Admission to a treatment institution (half-open)
statistical data is provided. substantial) difficulties, resulting in their limited use. Similarly, up (Re)Educational measure+restriction term
(Papadopoulou 2008b) to now penal mediation has rarely been applied in cases of domestic (Re)Educational measure
violence (Artinopoulou 2009). No punishment
43
According to an old CoE – CM R(87)18 on
simplification of criminal justice; also CoE – While ADR operates in other fields of law (civil, commercial,
Conversion of prison sentence
CEPEJ(2007)13. company law), several legal professionals are very sceptical about Suspenision os prison sentence

2007-2008
44
In December 2008 the first group of Greek the concept of restorative justice in criminal law (Efstratiadis Admission to a treatment institution (half-open)
mediators certified by the Greek Society of 2003). Some reasons are mentioned in the beginning of this article (Re)Educational measure+restriction term
Mediation and Arbitration, established by (Re)Educational measure
the Association of Joint Stock and Limited (part [Link]). Greece as a civil law country does not consider
No punishment
(Liability) Companies in 2006, see at www. jurisprudence as its main source of law, although this is changing
[Link]/; see more in Dikaiorama, 17,
(cf. Kormikiari 1994: 296). Instead, the Constitution is the supreme

100

200

300

1000

1500

2000
2009.
law of the land. Law enforcement falls within the exclusive authority
45
Athens, the capital, has a population Abs. no. of measures
of 789.166 in the city itself and 2.8 million of professional judges and prosecutors who are supported by the
with Greater Athens (Athens prefecture); police and similar bodies. Extra-judicial settlements fall beyond the Figure 9
10 probation officers for Piraeus (181.933
inhabitants) and Greater Piraeus (553.450 logic of the law; this is the reason why the measures are available Treatment measures and punishment of juveniles,
inhabitatnts; Pireaus Prefecture), while in only in the case of court and extra-court agreements between the Athens–Greater Athens (2006–08)
total 80 probation officers for the whole
country (population of 10.9–11 million), NSSG parties. Furthermore, the court-based schemes available for the [Source: Statistics of the Juvenile Probation
2001/09; see also Kathimerini 2006. adjudication of minors have been criticized for their compelling style Service of Athens (and Greater Athens) 2006–08]

144 ////////////////////////////////// +++++++++++++++++++ 145

 Figure 9 depicts the treatment measures and punishment applied to juveniles during 2006–2008. The Figure 10 reflects the situation referred to with a complex
time span is very short, nevertheless the increase of institutional measures (admission to treatment pattern of ups and downs over the examined period. There is
institutions) is evident, doubling from 1.7 to 3.1% while the suspension of prison sentences declined a striking increase in admissions to juvenile prison after 1993.
fourfold, from 0.4 to 0.1%. The most frequently imposed measures are educational ones (cautioning, While educational measures and admission to juvenile prison
advice, service’s supervision, etc. ADR) (92.8%), followed at a lesser extent by the conversion of went through a similar fluctuation between 1978 and 1989, the
imprisonments into fines (3.2%) and admissions to juvenile prisons (2.5%). trend subsequently changed and the number of educational
The reluctance of prosecutors to apply diversion can be justified by the following causes. Firstly, measures constantly decreased, while imprisonment rates became
their offices are overloaded with cases and they receive no support from juvenile probation officers unpredictable, reaching a peak in 1996, 1999 and 2004. Even though
(Pitsela 2004: 270; Dimopoulos and Kosmatos 2006: 121), the juvenile probation officers only being the total numbers are low, they range from 13 to 179 admissions
brought in felony cases, and not in cases of petty offences or misdemeanours. Secondly, they only per year.
fulfil their post as probation officers for a short period of time (2–4 years). Thirdly, assessing the
personality of juvenile offenders is a highly demanding task for the prosecutors. The reason for this 3.5.4 Conclusions and perspectives
is that they have inadequate experience and training in the psychology of juveniles and therefore do
not feel confident about conducting swift procedures. The fourth reason is the principle of legality Restorative justice is a large and complex undertaking (Gavrielides
ruling the prosecutor’s office – together with the principles of opportunity and discretion (see also 2008). Scarce means and nebulous methods undermine the success
Giovanoglou 2008b). The principle of legality goes further than in Anglo-Saxon law. It does not only of the measures. As mentioned previously, legal guidelines are
mean the legal ideal that requires all law to be clear, ascertainable and non-retrospective (Gallant needed to encourage the judicial system and other practitioners
2008). In Greek criminal law, as in other continental countries of Europe, it also means that the to familiarise themselves and feel safe with the new measures.
prosecutor is compelled to prosecute a criminal act, when he/she becomes aware of it: when the Juvenile justice is an ideal area for their application, but only in
victim files a complaint or refers the act to the prosecutor or if he/she, suspecting a violation of careful steps. Failure due to high expectations without the necessary
criminal law, collects evidence and discovers a crime. support to achieve them has an adverse effect on the target group
This, in addition to the increase in the amount and intensity of crime and the people without a stable as well as on the success of the measures (OIJJ, O’Mahony 2009;
residence referred to previously render prosecutors very cautious in their proceedings as they try to cf. Braithwaite and Mugford 1994).
avoid making wrong findings. Also, if the offender (in our case the juvenile) on whom the alternative There have been suggestions that mediation should be handed
sanction has been imposed commits another violation of the law, the prosecutor shall be responsible over to the police, because of the extra-judicial character of their
to the Head of the Prosecution Service. proceedings. This idea is however for the time being incompatible not
only with the GPPC but also with the principles of the Constitution.
While prosecutors are in exceptional cases entitled to discontinue
cases without a trial, there are no such options for police officers. A
Figure 10 strict principle of legality applies to the police and obliges them to
8000 Treatment measures investigate every single crime they have noticed and, subsequently,
and punishment of to send all their investigations to the prosecution service (Jasch
7000 juveniles for felonies 2004; Sakkali 1994: 223–224). Cautioning and advice (educational
and misdemeanours measures) can only be applied by courts, these measures are
6000
(1980–2004) however informally also used by police officers, because they
(Source: NSSG, Justice believe this would be better for the minor (and occasionally for
Statistics, Table B5) the adult offender). If these rights are to be granted to the police,
5000
Abs. no. of Measures

Note: Lines on a basic mechanism of experts (psychologists, social pedagogues,

two axes sociologists, criminologists, social workers) should support them.
4000
Otherwise the police would be likely to reject the idea, because,
apart from them being overburdened with cases, they also lack
3000 training in consulting and working with juveniles.
I would suggest making maximum use of the possibilities offered
2000 by the law combined with adequate support. For the juvenile system
Educational measures
I recommend a step by step implementation examining the pros
1000 Custodial measures and cons of the models; otherwise it would be once more the case
of a “foreign suit” that does not fit the particular system’s and
Therapeutic measures society’s needs. Furthermore, a group of trained practitioners
working alongside the prosecutor and the police is also necessary.
1978 1983 1988 1993 1998 2003 2008
Year

146 ////////////////////////////////// +++++++++++++++++++ 147

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 It is fundamental to highlight one of the key issues related to juvenile criminal mediation in Italy –
namely, the lack of any legislation explicitly regulating it.
This partial regulatory gap has actually not prevented the analysis and use of juvenile criminal
mediation; however, it has not enabled a unified practice of mediation to develop. Also, it has meant
that at a national level, no in-depth changes could be made in terms of judicial culture and social
policies concerning deviant youths.
Therefore, it is evident that our country needs to take steps to comply with the European regulatory
framework so as to give due recognition to the experimental activities that have been carried out for
Isabella Mastropasqua over ten years.
Ministry of Justice (Italy) Indeed, the Juvenile Justice Department has taken advantage of the gap in relevant legislation and
Contact +++ [Link]@[Link] has been providing momentum to these activities over the past few years.
Results of the department’s activities include – in particular – a systematic survey of current initiatives
and the setting up of a database of information on the organisational characteristics of juvenile criminal
mediation services. A particularly significant outcome of these activities is the availability of quantitative
information, i.e. of figures on juvenile mediation in Italy – which has finally made local experiences
known at a national level. However, reference should also be made to the following:

3.6 • as regards local policies, local agreements were drawn up via

ad-hoc inter-institutional protocols between juvenile justice
services and regions based on the support and participation of
juvenile judicial authorities;
• wide-ranging training and awareness-raising activities targeted

Juvenile Criminal at professionals working in the sector were carried out in co-
operation with both public and private institutions;

Mediation in Italy: • a glossary of terms was created, in Italian as well as in English

to gather relevant terminology;

Current and Future • an e-learning platform was developed to enable e-learning;

• national and international projects were organized in order to

Perspectives •
further enhance the exchange of experiences;
workshops were organised for mediation services;
• a seminar on mediation practices was held at the Centro Europeo
di Studi of Nisida with the participation of experts from France,
North America, Spain and Sweden;
• provisions on prison mediation were included in the bill on the
organization of the juvenile correctional system that was submitted
3.6.1 Introduction to the cabinet of the minister of justice on 15 January 2008.

The history of juvenile criminal mediation in Italy’s judicial system is These activities dealt with various issues, like building up shared practices; exchanging experiences
especially fragmented and complex. Instead of retracing this history and highlighting best practices; increasing skills and information via meetings with European experts;
as a chronicle, an overview of its main features is provided below, developing integrated approaches at a local level; carrying out legal analysis and putting forward
because it accounts for the special nature of the Italian model and regulatory proposals.
must be taken into account when envisaging future developments A common aim of all the above activities is to promote the culture of mediation and to thus contribute
and new perspectives – not only in respect of juvenile mediation, to transforming the judicial and social system.
but regarding restorative justice in general in Italy.
In 2002, the Juvenile Justice Department of the Ministry of Justice 3.6.2 The Italian model
started supporting and systematizing mediation practices in this
area. The department also started disseminating information on The attention that mediation has attracted in recent years has allowed the distinctive features of the
conceptual and operational tools enabling those affected to meet, to Italian model of mediation to come to light.
monitor and orient their activities and ultimately to become aware of Juvenile criminal mediation is initiated mainly on the basis of the assessment of the (alleged) offender’s
the fact that they are members of a group sharing common practices. personality as per Section 9 of President Decree 448/1998, whilst it is implemented less frequently in

152 ////////////////////////////////// +++++++++++++++++++ 153

 connection with probation. This different approach actually has major Circular Letter of Service II – Studies, Legislation and Documentation
consequences. As a method of assessing the offender’s personality, dated 9 April 1996 (40494) by incorporating the experiences accrued
mediation can be used from the pre-trial phase of investigation, i.e. to the present and by taking into account the fast-paced evolution
it may be requested at the pre-trial stage by the public prosecutor. of the theory and practice of juvenile criminal mediation in Italy.
Mediation can also be ordered by the competent judge during the The starting point is that the Italian practice of mediation is
court proceedings. Conversely, during probation, mediation can only particularly focused on victim offender mediation programmes;
be ordered by a judge. The survey of the Juvenile Justice Department accordingly, this is the area of restorative justice that is addressed
showed that mediation is often thought of as a last resort. More in the guidelines. The 2008 guidelines, which will be further
widespread application of mediation during the proceedings or in discussed in this article, provide clarification and guidance in the
connection with probation would enhance its social effect. following areas: systematization of practices; mediation services;
Mediation services can be various different types of entities. They are the mediation process; documentation; co-ordination.
usually either public entities managed by local authorities or private
welfare bodies working in agreement with local authorities. The latter [Link] Systematization of Practices
set up is more frequent. Accordingly, they are funded by different Regarding the systematization of mediation practices, the guidelines
sources. The sources are often temporary, although sometimes describe mediation as “[...] an innovative approach to handle conflicts.
regional laws set up permanent sources. Financial insecurity causes In mediation, the parties in the conflict are made to accept their
instability and often mediation services are terminated as soon as responsibility and are enabled to conduct the process in accordance
funding is discontinued. This mixed funding framework based on local with their feelings and in mutual acceptance of their respective
agreements also applies to training schemes. As a result, very different motives. Mediation helps to form solidarity between individuals and
training courses are established, varying in duration and content. to develop a dialogue on the specific area of criminal justice.”
Some courses deal with juvenile criminal mediation and others with The guidelines highlight and clarify a significant issue in respect
other types (family, etc.) as well. Accordingly, a complex organizational of juvenile criminal mediation, namely the “educational” element
structure is built up to suit this varied structure of training themes. inherent in mediation. Therefore, mediation is suitable whenever
This is one of the special characteristics of the Italian model. either party to a conflict is a juvenile, irrespective of whether an
This varied structure was developed simultaneously with the offence has occurred or not. It is applicable in any area of social
reshaping of the welfare policies in Italy. According to the reformed interaction (family, school, friends). Therefore, mediation is an
Constitution (Title V), regions are now exclusively competent to bring educational measure available in juvenile criminal justice. The
decisions on the provision of welfare services. A shift has taken guidelines also reaffirm the particular features of mediation
place from state provided to locally provided services. This shift practices. Participation in mediation takes place on a voluntary
enables the growth of local welfare networks suited to cater for basis, mediation only being possible if the parties freely agree to
local needs, using local resources. Due to the direct contact, local take part in it. The principle of voluntary participation is based on
networks are much better suited to cater for local communities. the assumption that the parties are in a position to give their free,
Decisions on allocation of funding are also brought on a local informed consent without being bound by such a consent – which
level. A risk of this arrangement however is that different welfare may be withdrawn at any time. The parties should be informed
systems are established, which affects the equal enjoyment of in detail about their rights, the nature of the mediation process,
social/welfare rights within the different regions of the country. No the contents and significance of mediation, and the possible
regulatory framework has been developed for criminal mediation, consequences resulting thereof.
although considering constitutional principles; this would fall Based on the guidelines, the applicability of mediation does not
within the competence of the State. The schemes set up by local depend on the severity of the specific offence and/or the extent of
communities are strongly affected by relationships with local the damage caused to the individual victim and/or society. In fact,
juvenile judicial authorities, and therefore often place the emphasis the key factor is whether mediation can be carried out between the
on the prevention and reduction of crime instead of promoting parties involved. From this standpoint, fundamental importance
projects that are community based and that focus on rebuilding should be attached to the assessment – carried out by juvenile
social relationships, such as mediation. judges and mediators – of the feasibility of mediation. Lacking
specific legislation in the area, mediation in juvenile criminal
3.6.3 The 2008 guidelines proceedings may be initiated at any stage of procedure and at
any instance – which means that mediation may also be used in
The need to regulate this issue was reflected by the guidelines connection with the enforcement of sentences.
drafted in 2008 by the Juvenile Justice Department. The aim of It is the task of the juvenile justice services to promote mediation
the guidelines is to complement and amend the provisions of the and to inform the judge or public prosecutor, as appropriate, if there

154 ////////////////////////////////// +++++++++++++++++++ 155

“The mediator’s independence is a possibility of carrying out mediation. Expanding the range of the rule the statements rendered by the parties during mediation may not be used as evidence, the
is essential to ensure free and entities entitled to propose mediation will empower the culture of guidelines also set forth that not only the mediator but also the parties are bound to confidentiality
consistent decisions. This is true mediation within the community. during the mediation process. Obviously, emphasis is put on the need for mediators to be adequately
in both ethical and cultural terms, trained and skilled in their activity.
biases and external influences [Link] Mediation services
need to be avoided at all costs. The guidelines point out that it is necessary to keep separate, at least [Link] The Mediation Process
The collaboration between the in structural terms, any mediation activities that are to be carried out The mediation process is described as follows in the guidelines, thereby unifying standard practices.
judiciary and mediators is purely in non-judicial settings. This is important due to the differences among
functionary and is not based on mediation services. It is of fundamental importance to establish a Referral to mediation
any hierarchical relationship, network of mediation services via agreements between the state and A case may be referred to mediation upon request of a juvenile judicial authority, court and/or
and therefore any influence from the regions that can ensure equal access to services as well as unified prosecutor’s office. A case may also be referred by the autonomous decision of the juvenile services
the judiciary is also unacceptable. standards in terms of the quality of the service provided. if mediation is necessary in order to investigate the youth’s personality. In this case, the judicial
Mediators must keep any The guidelines envisage a mediation service network covering authorities also need to be informed, because the court may need to notify the mediation service of
statements or testimonials multiple areas (family, school, neighbourhood, ethnic relationships, possible impediments to carrying out mediation, including impediments related to taking evidence,
rendered by the suspect, the criminal matters, juvenile matters, etc). The underlying assumption e.g. whenever mediation may be used to intimidate the victim in cases where the juvenile offender is
defendant, the defendant’s is that mediation should be a widespread, non-sectoral practice. At a member of an organised criminal group.
parents or by the victim and the same time, this view is also due to the lack of specific legislation The referral is basically a request addressed to the mediation service for assessing the feasibility
related to the mediated conflict and the resulting development of feasibility-oriented attitudes. of a mediation process concerning two individuals involved in a conflict that has resulted in the
confidential. If this rule were not The guidelines support the current set-up of public bodies as commission of an offence.
kept, the right to confidentiality well as private entities providing mediation on the basis of ad hoc Currently, referral to juvenile criminal mediation takes place mainly in the context of assessment
and the requirement of creating agreements. Staff of mediation services may include – either on of a youth’s personality under the terms of Section 9 of President Decree 448/1998; accordingly,
a safe environment would be a part time or a full time basis – adequately trained staff from the referral is permitted at any time during a judicial proceeding, and also during the pre-trial phase.
jeopardised, which are both Juvenile Welfare Office. Inter-organizational interaction and the Referral to mediation may also take place within the framework of probation as per Section 28 of
preconditions for successful use of flexible models are also promoted. In consistence with the President Decree 448/1998.
mediation. public nature of mediation services, mediation is free of charge. Mediation should become one of the most significant items in intervention projects developed by
The mediator should limit the The premises where mediation is carried out should be as juvenile justice services in co-operation with local authorities; such projects should also envisage
scope of mediation and take care welcoming as possible and must not have any ideological, religious, “implementing arrangements aimed at remedying the consequences of an offence and promoting
not to gather information and/ cultural and/or ethnic nature whatsoever. reconciliation between youth and victim” as per Section 27(3) of Legislative Decree 272/1989.
or data related to other offences The guidelines propose the possibility of mediation services
that might have been committed setting up teams whose task it would be to disseminate information Preliminary phase
by the parties – if such information on the culture and practice of mediation at different locations The preliminary phase involves analysing the conflict and interpreting its origins in order to assess
is irrelevant to the object of the within the area and to ensure that requirements are being met. whether the case is suitable for mediation. The parties are also contacted in person to provide the
current mediation – nor should the The logistical recommendations mentioned above will obviously mediator with an opportunity to acquire further information on the conflict and also to explain the
mediator carry out investigations apply to such de-centralised services as well. significance and consequences of the mediation process, which is considered to be a forum for the
or take evidence. If this does parties to listen to one another and express themselves in a confidential, consensual environment.
happen and such information or [Link] Mediators Having collected the necessary information and obtained the parties’ consent to the mediation, the
data are gathered, a mediator The guidelines clarify the position of the mediator. The mediator is a mediator will have to plan the face-to-face meeting.
acting in his/her quality as a “third party” who fulfils his/her tasks impartially and who is “equally
public official and/or as a person close” to both parties. This wording is taken from relevant literature Meeting
in charge of official duties would to express that the mediator stands close to both parties in order The meeting is at the very heart of the mediation process; it can take the form of one or several
be required to act upon such to promote mutual recognition and rebuilding communication interviews in which one or several mediators may participate as well as the victim and the offender.
information – under the current channels (see the text highlighted). Generally speaking, the mediator is the first to take the floor to introduce the rules of the dialogue
laws – only if the offence at issue and chair the meeting. At the end of this phase, the various options for reconciliation/reparation are
is prosecutable ex officio” [see described; this is followed by the final considerations to be made by the mediator(s), whilst the final
secs. 200 and 249 of the Criminal The guidelines refer to the legislation on Criminal Jurisdiction of reparation/reconciliation agreement, if any, is signed by both parties.
Procedure Code; see also Sec. 1 Peace Courts [Sec. 29 subsec. (4) of Legislative Decree 274/2000]: The guidelines envisage the possibility of including the parties’ family members or other entities in this
subsec. (2) of Act 19 of 2001]. “The statements rendered by the parties during conciliatory phase, since practice has shown quite clearly that the involvement of these persons in the conflict – which
procedures may not be used on whatever grounds for the purposes may antedate the given offence or not – often makes it necessary for them to take part in the mediation
of adjudicating the case”. This principle was considered to also process. Additionally, the possibility of extending the scope of participation in the meetings provides
be applicable to juvenile penal mediation. As well as reiterating a further opportunity for disseminating the culture of mediation and of peaceful conflict resolution.

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 Indirect mediation is also possible. In some cases, the mediator [Link] Future Perspective
works as a channel of communication between the parties The guidelines urge the individual mediation services to evaluate and follow-up the work carried out. The
by making it possible for them to get closer also in situations guidelines also clarify the role played by the Juvenile Justice Department, which is currently in charge
where there is a marked resistance towards meeting “the other” of carrying out studies and monitoring activities to turn mediation from an exceptional, experimental
in person. The favourable outcome of the mediation is often activity into standard practice, as well as of fostering the development of a code of practice along with
reflected by the written apology addressed to the victim, whilst training standards for mediators. The Juvenile Justice Department is also required to analyse current
the injured party at times decides to withdraw the complaint lodged practices in order to monitor their impact, including their effect on the recidivism rate.
with the police. Another interesting call was made in the guidelines, namely to promote and launch new mechanisms
Indirect mediation plays an especially significant role in sexual to ensure that the victim and the offender can meet, including – in co-operation with juvenile detention
assault cases, where a face-to-face meeting with the offender is centres and the Juvenile Welfare Offices – in-prison mediation along with group conferencing and/
not appropriate or else not accepted by the victim. or the setting up of peacemaking groups.
Initiating restorative justice processes that are focused on the victim and/or groups of victims as
Reparation well as on society during the detention phase might also become part of treatment programmes;
Mediation may be aimed and lead, inter alia, to reparation. their favourable outcome would become thereby one of the items that the court/judge responsible
Reparation can be regarded as an approach with the aim of restoring for enforcement might take into account as a basis for mitigating the sentence.
and/or rebuilding damaged social relationships. Symbolic reparation The handling of conflicts via tools such as peacemaking groups and conferencing is especially
would appear to be most consistent with this objective as well as the interesting because it is close to the special nature of juveniles since these programmes call a larger
overall purposes of the juvenile justice system. Symbolic reparation group into play, foster social inclusion, and strengthen social bonds – which in turn contributes to feeling
means, in this context, any reparation opportunity other than the of safety and well-being, especially in juveniles. Unlike victim offender mediation, where the offender
payment of damages – without ruling out concrete commitments and the victim meet in the presence of a mediator, conferencing relies on the participation of persons
such as carrying out socially useful work for free. other than the victim and the offender, such as family members and “supporters” of either party.
Reference is also made to the desirability of setting up group meetings with the participation of
Conclusions and formalization of the outcome victims and offenders who are not directly related to one another, i.e. groups concerning the same
The conclusions represent the formalization of the end phase of the types of offence and/or crime.
mediation process. The outcome of mediation can be considered The guidelines also call for expanding the scope of mediation within the framework of the many
to be favourable if the parties manage to reach an understanding projects implemented every year by juvenile justice services – so as to reaffirm that mediation is a
they find to satisfactorily meet the respective requirements – after valuable tool to make juvenile and young adult offenders accountable.
restoring genuine, non-instrumental communication channels. Special importance is attached to the co-operation between juvenile judges, Bar members
Mediation may obviously entail the reconciliation between victim specialising in this sector, and local authorities including law enforcement bodies, all of whom are
and offender as well as instances of reparation, which at times are required “to attempt the amicable settlement of disputes”.
symbolic in nature.
Conversely, the outcome is negative if no understanding can be 3.6.4 From guidelines to reality
reached and/or no change takes place in the relationship between
the parties. Whilst the history of juvenile criminal mediation in Italy is especially complex and fragmented, the
Additionally, reference is made to “unperformed mediation” guidelines are an attempt to systematize and highlight the distinctive features of the Italian model.
whenever it is found during the preliminary phase that the parties From this standpoint, they mark a significant milestone in the history of juvenile criminal mediation in
have already settled their conflict or else do not acknowledge Italy both in respect of regulating practice and bringing Italian practice closer to the implementation
that such a conflict exists – even in if there is a threat of criminal of restorative justice in European countries. Additionally, the guidelines promote the involvement
proceedings. Mediation is “unfeasible” if either party fails to consent of juvenile judges and recognise the role the Bar and law enforcement bodies can play in this area.
thereto, if the parties in question cannot be contacted, or if the In Italy there are currently 19 Juvenile criminal mediation centres – namely, in Ancona, Bari,
mediator considers it inappropriate to initiate the mediation process Bozen, Brescia, Cagliari, Caltanissetta, Catanzaro, Firenze, Foggia, Genova, Latina, Milánó, Nápoly,
due to the specific nature of the case. Palermo, Salerno, Sassari, Torino, Trento and Reggio Calabria. They were set up following institutional
Having concluded the meetings, the mediation service informs agreements between local authorities (regions, provinces, and municipalities), juvenile justice services,
the judicial authority and the competent services on the outcome the judiciary and voluntary organizations. These mediation centres have different characteristics, and
of the mediation process. If the mediation was “unfeasible” some of them have only just started their activities.
because either party (or both) failed to give their consent, the This uneven quality of mediation services is also significant. Additionally, if one compares Italy with
information provided to the judicial authority will not contain any some other foreign countries, the number of cases mediated does not seem particularly considerable.
details that might allow identification of the party that refused to It is necessary to take into account that there is currently no regulatory framework providing a
consent thereto. baseline for mediation. This has a significant effect on the Italian practice of mediation. The lack of
specific laws and the ambiguities potentially resulting thereof point to the need for establishing as

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rapidly as possible whether mediation should be regarded as a new approach to criminal offences
which may lead to overcoming the penalty-focused approach that relies on the imposition of sanctions. Dominic Kelly
In an effort to examine the experiences implemented so far and in order to ensure that they may National Commission on Restorative Justice (Irelanad)
continue in the future, there are several issues to be considered and investigated. Contact +++ DOJKelly@[Link]
It is fundamental to support the existing mediation services via meetings and exchanges of
experience; to raise the awareness of regional and local authorities and juvenile judges; and to

3.7
develop a follow-up system that can monitor to what extent mediation impacts on the decrease in
the recidivism rate.
Furthermore, it is necessary to focus more on the role of victims by launching programmes that
can let them be heard and obtain redress. In Italy, restorative justice practices have not been the
outcome of the activity of grass roots movements, i.e. they were not the result of initiatives waged
by victims’ groups and movements; in fact, they have been and are being developed based on the
professional and cultural influence that is exerted by experts and professionals working within the Restorative
juvenile criminal justice system. Above all, it is necessary to raise widespread social awareness of
the issues related to conflicts and their settlement. Practices and
Exchanges of views and contacts at a European level should continue. Currently, the Office for
International Studies, Researches and Activities (Ufficio Studi, Ricerche ed Attività Internazionali) at Juvenile Offenders
the Juvenile Justice Department is contributing to several European projects including, in particular,
“Tools in Network” – which envisages the use of an e-learning platform for restorative justice –
and “Restorative Justice and Crime Prevention” – which is a project developed jointly with the
in Ireland
Psychoanalytic Institute for Social Research of Rome (Istituto Psicoanalitico per la Ricerca Sociale) and
the European Restorative Justice Forum of Leuven in order to examine the links between restorative
justice and crime prevention.
The activities and analyses undertaken are far from negligible; in fact, they mirror the unrelenting
attention paid to the multi-faceted world of restorative justice.

References

• Mastropasqua, I. (2005) Mediazione penale e giustizia minorile. Mediares 6

• Mastropasqua, I. (2006) Il processo penale e la mediazione. Mediares 7 3.7.1 Garda Síochána Diversion Programme
There are two methods of juvenile diversion in Ireland. Depending
on the particular circumstances of a case, they are conducted by
An Garda Síochána (the Irish National Police Force) and by the
Probation Service.
A Juvenile Liaison Officer (hereinafter JLO) scheme had been
in existence since 1963, under which Gardaí had been diverting
juveniles on a non-statutory basis. The Children Act (2001) placed
the Diversion Programme on a statutory basis and became
operational from May 2002. It created the position of director of the
Diversion Programme at Garda superintendent rank and assigned
statutory functions to Juvenile Liaison Officers.
Section 18 of the Children Act 2001 provides that every child aged
under 18 years shall be considered for admission to the Diversion
Programme, provided that the juvenile accepts responsibility for
the offending behaviour and consents to participation.
The purpose of diversion is to provide a means of dealing with
offending children other than by way of prosecution and by diverting
them from further offending.

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 Options available under the programme include The offences most frequently encountered in the diversion The total number of offending
process include: offences against public order, robbery, assault, incidents in 2007 amounted to
• no further action, where the offence does
not warrant either diversion or prosecution;
harassment, supply of drugs, criminal damage, burglary. 27.853 and the total number of
children referred to the Diversion
• an informal caution by a JLO, against a repetition
of the offending behaviour; Year Total no.
Programme was 21.941. Of these,
16.753 (76%) children were
• a formal caution by a JLO, including supervision
of the offender by the JLO for a period of 12 months.
2002 29
admitted to the programme and
12.485 (57%) received informal
2003 118
cautions.
The Diversion Programme may not be considered as a suitable 2004 177
response to an offence, if 2005 262 Table 7
2006 307 Number of restorative events during

• there is no acceptance by the offender of responsibility, 2007 378 the period from 2002 to 2007

• the juvenile is a habitual repeat offender,

• the offence is very serious,
• it is not in public interest. 3.7.2 Family Conference

In these circumstances, the cases are returned to the local Garda Where a juvenile has not been diverted from prosecution, but a
superintendent for prosecution. court considers that a conference may be appropriate, Section
78 allows the court to direct the Probation Service to convene a
[Link] Restorative Caution Family Conference to consider such matters as the court considers
Section 26 of the act allows for the presence of a victim when appropriate in the case.
a formal caution is being administered by the JLO. Where
a victim is present, the legislation requires that there shall be 3.7.3 Conference Models
a discussion among those present about the child’s criminal
behaviour. A restorative conference or family conference involves a meeting
The JLO administering the formal caution may invite the child of persons concerned with the child’s welfare and has the following
to apologise, orally, or in writing or both, to the victim and, where functions:
appropriate, to make financial or other reparation to the victim.

[Link] Restorative Conference

• to bring together the child, the parents or guardian, other family
members, relatives and other persons as appropriate, to
Section 29 allows JLOs to bring together family and relatives, as • establish why the child became involved in the behaviour
well as relevant agencies, to discuss the offending behaviour and that gave rise to the conference;
to formulate an action plan for the child. • discuss how the parents or guardian, family members,
relatives or any other person might help to prevent the child
[Link] Main features of the Diversion Programme from becoming involved in further such behaviour;
Salient features of Garda Síochána model include: • where appropriate, review the child’s behaviour;
• to mediate between the child and the victim;
• consideration of the victim’s needs as well • to formulate an action plan for the child;
as the offender’s needs; • to uphold the concerns of the victim and have due regard to his
• protection from double jeopardy: once the decision has been
made to divert an offender, no prosecution will be initiated in
or her interests.

relation to that offence; The meeting process usually involves the following steps,
• proceedings are confidential; although each conference adapts to the needs of the participants:
• diversion practices are conducted by specially-trained personnel;
• intervention can occur early, following the detection of an offence; • introduction of the participants and an explanation of the
• high level of training in restorative justice facilitator skills, procedures adopted;
mediation skills and victim awareness skills; • the offender usually speaks first, explaining the circumstances
• offender accountability. of the offence;
• the victim explains the impact of the offence;

162 ////////////////////////////////// +++++++++++++++++++ 163

 • the offender’s and victim’s supporters contribute to the general
discussion;
Dr. Andrea Matouskova, Ph.D
Probation and Mediation Service (Czech Republic)
• agreement; Contact +++ amatouskova@[Link]
• a plan (apology, reparation).

Between October 2004 and

January 2009, 173 Family
Conferences were referred by the
court. In 145 of these referrals,
The court-referred Family Conference, conducted by the Probation
Service, is similar to the Garda conference model. The Probation
Service is required to convene the conference within 28 days and
it generally follows the same set of procedures in the convening
3.8
Mediation as a Restorative
conferences took place. Ninety-
seven of these conferences were
and running of the conference.
Approach to Dealing with
successful, with the completion
of action plans and the disposal
3.7.4 Experiences
Juvenile Crime in the
of the cases concerned. The
remaining 48 conferences were
unsuccessful and criminal
According to a survey of participants:
• over 93% of victims were satisfied with the Garda Diversion
Programme;
Czech Republic
proceedings in court were re-
activated.
• it is not easy for young people to explain their actions to their
family and to apologise to a victim;
• RJ forces offenders to examine their actions and the
consequences of their actions;
• attending traditional court process is far less demanding on
young people than the diversion process;
“Justice can be understood as restoration and reconciliation rather
than retribution. If crime hurts, justice should repair the harm and
• RJ works well and is considered effective by JLOs and Gardaí; assist recovery.”
• RJ is not suitable for every case; Howard Zehr
• it is time-consuming and resource-consuming;
• it requires training for it to be effective; 3.8.1 Introduction
• it is an additional tool in crime prevention;
• it can be powerful and effective in the right place. The Czech Republic has a population of approximately 10 million
people. The Probation and Mediation Service of the Czech Republic
(hereinafter PMS) was founded in January 2001. In 2009, the PMS
had 340 probation officers and assistants. The PMS operates
with approximately 28.000 cases per year, 14% of the cases are
connected to juveniles. In the Czech Republic the judicial system
is divided into 8 court regions with 74 court districts (and 74 PMS
centres). Each PMS centre has one specialized officer who focuses
on issues related to juveniles. According to the Czech Youth Justice
Act (hereinafter YJA) this specialized officer has to receive special
training on methods of working with juveniles, their families and
on cooperating with other professionals (social workers, teachers,
psychologists, lawyers etc.).
The new specialized YJA introduced new methods of addressing
juvenile delinquency. It came into effect on 1 January 2004. This
means that now there is 5 years of experience in this field.
According the YJA, criminal liability starts at the age of 15 and a
juvenile is a person who is between 15 and 18 years of age. Children
under 15 are not criminally liable, but they may be subject to
measures specified under the YJA (such as probation supervision).
Measures (educational, protective and penal measures) were

164 ////////////////////////////////// +++++++++++++++++++ 165

introduced to replace punishments. During the pre-trial criminal The penal measures are the following:
proceedings, educational measures can be ordered only with the
juvenile’s consent. Educational measures (see the text highlighted) • community service;
can be imposed by the state prosecutor – PMS prepares the • financial compensationwith(with
suspended sentence supervision;
materials necessary for this type of decision. • forfeiture of a thing; suspension);
• prohibition of professional activities;
The educational measures are the following: • imprisonment.
•
• probation
supervision under the Probation and Mediation Service;
• which has programme as a specialized programme for juveniles
to be accredited by the Ministry of Justice; In the YJA it is written that “[…] the proceedings must aim to
• toeducational obligations (living with parents, financial contribution
the Victim Fund, community service, settlement with the injured
provide compensation or other adequate remedy for the losses
suffered by the victim […]”. Thus, a principle of restorative justice is
party, reparation, addiction treatment); incorporated into Czech legislation concerning juvenile offenders.
• educational restrictions (prohibitions on visiting certain places
and contacting certain people, living in a certain place, possessing
Accordingly, the PMS´s activities are focused on:

certain things, using addictive substances, gambling, change of • arranging victim offender mediation;
domicile or employment must be discussed with a PMS officer in
advance);
• preparing a report on the juvenile’s background (this pre-
sentence report includes for example the juvenile’s attitude to
• cautioning. the victim, to the crime and to the consequences of the crime
– also the possibilities of redress);

The PMS is the first to be informed by the police about cases

• ensuring the execution of court-imposed measures, in particular
educational measures;
concerning juveniles. The probation officer is the first to make • activities related to the juvenile’s family and school;
personal contact with the juvenile offender and his/her family and
also with the victim. The officer offers them the possibility of victim
• cooperating with authorities (schools, child protection board etc.).

offender mediation. If they refuse to take part in the mediation Activities of PMS with a restorative approach include: creating and
process the probation officer offers to cooperate with them in order managing Multidisciplinary Youth Teams in each Czech court region,
to prepare the pre-sentence report. carrying out victim offender mediation as a structured process of
Protective measures can be used instead of penal measures (see conflict resolution between the juvenile offender and the victim and
the texts highlighted). other activities aimed at settling harms arising as a consequence
of crime.
The protective measures are the following:
3.8.2 Multidisciplinary Teams
• compulsory treatment (in relation to alcohol or drug addiction);
• placement in a juvenile institution (may be imposed upon a juve-
nile, as well as a child under 15 who has committed an act that is
Multidisciplinary Teams (hereinafter MUT) are inspired by the
British Youth Offending Team (see article 4.7 in this publication)
otherwise considered a criminal act); and the Canadian Youth Commission. Creating such teams is one
• seizure of a thing (for example, something which might have been
used to commit a crime).
of the PMS’s priorities. The report submitted to the government by
the Crime Prevention Board in 2007 recommends further developing
and implementing these teams in the practice of youth justice – we
currently have MUT at 59 of 74 court regions. The members of the
MUT are: probation officers, judges, public prosecutors, policemen,
social workers from the Child Protection Board, local government
officials, the crime prevention coordinator, service providers (of
social, health and educational services) and other agencies. The
activities of the Czech MUT are:

166 ////////////////////////////////// +++++++++++++++++++ 167

 Case study
• organizing “case conferences” as one possible way to work with
juvenile offenders; Martin (17 years) and Michael (21 years) started fighting at a party a few
• monitoring current practice, collecting relevant information and
data on juvenile delinquency in a given location;
minutes after midnight. Both of them kicked and hit the other, and both
suffered slight injuries. The police detained both of them and Michael was
• negotiating conditions of cooperation among individual bodies,
exchange of information on individual juvenile cases.
accused of starting a fight and after a few days Martin was also accused
of wounding Michael. Both of them were victims and also offenders in this
criminal case. The two young men knew each other a little, as Michael and
Martin’s older sister had been friends at school. The probation officers
Case study invited Martin to a personal meeting and offered him mediation. After
that, he had a personal meeting with Michael. Martin and Michael agreed
Three boys (a 16-, a 17- and a 16-year-old) were accused of burgling to take part in mediation. Mediation between Michael and Martin took 1
a small shop. According to the recommendation of the probation hour. Martin and Michael could explain their feelings, opinions and ideas
officers, the state prosecutor imposed on them the obligation of 40 about how to solve their personal conflict. The mediation between Michael
hours community work at the local retirement home. After 20 hours and Martin achieved the following results:
of very good work the boys attempted to steal the car of one of the • it improved the emotional well being of both young men;
employees of the retirement home. The boys’ plan was to steal the • it improved their relationship;
car and then to go abroad with it. The probation officer had been • it persuaded both of them to behave differently in the future;
cooperating with the retirement home for six years, and there had
never been any behavioural problems with the juveniles who were
• it made it possible to reach an agreement – Martin and Michael
apologized to each other (Martin apologized for the provocations
on community service there. This was the first time that PMS had to and Michael for the unsuitable response), they agreed on no
solve such a situation. There was a lot of tension at the retirement compensation for harms because they accepted that they were
home, ranging from anger at the boys to fears that the offence may be both partly responsible for the conflict.
repeated. Employees were more worried than residents. MUT discussed
the case and they recommended that a community meeting should be
organized at the retirement home. The participants of the meeting were:
the boys and their families, the probation officer, the state prosecutor,
the director of the centre, the employees of the centre and the Child
Protection Board’s worker. The community meeting gave the offenders Table 8 shows the statistical data concerning victim offender
a chance to explain what happened and to apologize to the employees. mediation during the period between 2006 and 2008.
It also provided the victims with the chance to explain their emotions,
feelings and needs and it explored the reasons for offending and how
those reasons might be tackled.
The total number The total number The total number
of cases in of victim offender of victim offender
Year pre-trial mediation in all mediation in
3.8.3 Victim offender mediation proceedings cases juvenile cases
Table 8 2006 5.169 577 142 – 25%
Victim offender mediation is a personal meeting between the victim Statistics on VOM
and the offender, which is chaired by the mediator – probation officer. during 2006–2008 2007 5.802 614 130 – 21%
The PMS offers the opportunity to participate in victim offender (Source: PMS statistical data) 2008 5.092 480 129 – 27%
mediation already during the pre-trial proceedings, but can also
be made available during court proceedings. According to the
Criminal Code and the Act on the Probation and Mediation Service, 3.8.4 Settlement of harms
the probation officer can mediate all types of juvenile offences;
there are no legal limits or restrictions. At the PMS, mostly cases The PMS uses Activities aimed at the settlement of harms when
of traffic accidents, thefts, burglary, deception, drunk and disorderly mediation can not be carried out. These activities, for example, can
offences and offences against the person are mediated. be part of the preparation of the pre-sentence report or of ensuring
the enforcement of measures imposed by the court.

168 ////////////////////////////////// +++++++++++++++++++ 169

 Case study

Honza, a boy of 16 years, was charged with vandalism committed in the

Jewish cemetery together with two adult accomplices. They destroyed a
number of gravestones, knocked down some benches and dustbins and
destroyed a memorial plaque dedicated to the victims of the Holocaust.
Honza was the only one who plead guilty and was willing to find ways
to rectify damage caused by the offence. The probation officer agreed Prof. Dr. Antonija Žižak
with Honza to arrange a personal meeting with the rabbi, where Honza University of Zagreb (Croatia)
explained the reasons for his behaviour and also had a chance to hear Contact +++ azizak@[Link]
how his behaviour affected the Jewish community: people were afraid
that similar violent acts would again occur, they did not know how to
repair the damaged tombs, they feared a possible increase in extremist
behaviour in society. After this meeting, Honza decided – as a form of

3.9
community service – to help repair the damaged property belonging
to individuals and to the Jewish community. Although the victims did
not want to meet Honza personally, the rabbi told them about his own
feelings on meeting Honza and the mood in the community gradually
calmed down.

3.8.5 Conclusions Mediation in

As justice professionals, by accepting and applying the principles of Cases of Juvenile
restorative justice, we commit ourselves to developing new ways of
addressing crime. This is not easy, given that the traditional approach
to justice is so deeply rooted in society. However, if we experience how
Offenders in Croatia
offenders try to make right the harm they have caused and we are told
by the victim and the offender how beneficial this process has been to
them, then it becomes evident that restorative justice is the way forward.

3.9.1 Introduction

Although victim offender mediation is not a brand new idea it

exists in Croatia only since 2001 and only as a pre-trial procedure
for juvenile offenders. Its development was enabled by multiple
changes happening simultaneously both globally and locally.
During the nineties, Croatia was going through war and post-war
problems. Transition to a new type of society included processes
like democratization, differentiation, privatization, Europeanization
and revitalization of religion. These processes created new needs
and opportunities for citizens, as well as new personal and social
problems. One of the problems was that existing strategies were
not able to reduce new and old types of juvenile crime. On the
other hand, this created an opportunity to get to know and to try

170 ////////////////////////////////// +++++++++++++++++++ 171

 to follow the world-wide changed perspective on juvenile justice. prosecutor may make his/her decision not to institute criminal
Focus was especially placed on restorative justice trends in proceedings on the condition that the minor is willing to fulfil one
Europe, children’s rights movement as well as changes regarding of the following four special obligations:
trends of law and treatment in neighbouring countries, especially
Austria and Slovenia. 1. to repair or provide compensation for the damage done by the
A separate area of law concerning juvenile crime and a separate offence, according to the offender’s abilities;
juvenile justice system has been in existence in Croatia for over 2. to get involved in the work of humanitarian organizations or in
50 years. The new trends were included in the Juvenile Court Act activities related to the community or the environment;
passed in 1997 (see Narodne novine 1997, 1998 and 2002). The 3. to undergo, with prior consent of the offender’s legal
act contains provisions of substantive criminal law, provisions on representative, medical treatment for drug addiction or any other
courts and criminal procedures and provisions on enforcement addiction;
of sanctions. It is applicable to two types of young perpetrators of 4. to get involved in individual or group work of youth counseling
criminal offences: minors (persons whose age at the time when services.
the offence was committed was between fourteen and eighteen)
and young adults (persons whose age at the time when the offence It could be said that the special obligation to repair or provide
was committed was between eighteen and twenty one). The rules compensation for the damage done by the offence provides the legal
on the criminal law protection of children and minors are provided framework for victim offender mediation (VOM).
within this act as well.
Three types of sanctions for the offences committed by minors or On the basis of the Juvenile Court Act, criteria for applying victim
young adults are defined by this act: educational and correctional offender mediation in cases of juvenile offenders in Croatia are as
measures, juvenile imprisonment and safety measures. For the follows:
offences committed by young minors (fourteen to sixteen years of
age) only educational and correctional measures can be imposed.
Educational and correctional measures are the bases of the juvenile
• reasonable suspicion that the minor concerned
committed the offence should be established;
justice system in Croatia. There are three types of such measures:
cautioning (court reprimand, special obligations and referral to an
• the offence concerned should be punishable by
a prison sentence of up to five years or by a fine;
educational centre), intensive supervision (probation) and referral
to different types of reformatories.
• petty offences that could result with charges
being dropped are excluded;
Regarding the legislative background for victim offender mediation, • first time offenders are a priority;
special obligations are the most important sanction. As a new • recidivists are not excluded;
sanction, special obligations enable integration and implementation
of international standards46 in Croatian juvenile criminal law and the
• offender has to provide his/her free consent
to participate in the VOM process;
juvenile law enforcement (justice and welfare) systems. • victim has to provide his/her free consent to
participate in the VOM process;
3.9.2 Development of mediation in
cases of juvenile offenders in Croatia
• the public prosecutor for minors is the only person entitled
to make a decision on imposing obligations prescribed
by article 64, as well as deciding if they have
With the purpose of solving problems arising from juvenile been successfully carried out.
offences out of court, the Juvenile Court Act introduced a pre-
trial procedure based on the principle of opportunity. According Per year, there are approximately 3.000 to 3.500 offences
to this principle, the public prosecutor for minors may decide not committed by minors in Croatia. Since 1998 (the year in which the
to request criminal proceedings to be instituted for a criminal Juvenile Court Act came into force) between 35% and 45% of cases
offence punishable by a prison sentence of up to five years, even referred to the office of the public prosecutor for minors were
though it may reasonably be suspected that the minor committed being resolved out of court via pre-trial procedures. Considering
that offence. Such a decision should be based on the public yearly statistics, up to 25% of these procedures is victim offender
prosecutors’ estimation that it would not be purposeful to conduct mediation.
the proceedings against the minor (having in mind the nature On these grounds, victim offender mediation was promoted by
and circumstances of the offence, as well as the perpetrator’s the project “Alternative Interventions for Juvenile Offenders –
46
For example: the Beijing Rules of 1985; the
UN Convention on the Rights of the Child; the
personal characteristics and life circumstances). More specifically, Out-of-court Settlement” which was developed by the Ministry
Riyadh Guidelines of 1990; etc. according to Section 64 of the Juvenile Court Act, the public of Health and Social Welfare, the Office of the State Attorney and

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 Offence
the Faculty of Education and Rehabilitation Sciences of Zagreb
University. The project started in the years 2000 and resulted in 24
Police
professionals being educated and certified by Austrian mediators investigation
and educators from “Neustart Graz” – Johann Schmidt and Brigitte
Power-Stary. The three year course covered approximately 450
hours of supervised practice and various theoretical approaches Public prosecutor
to mediation. Through the project, the Croatian model of out-of-
for minors
Juvenile
Release
court settlements for juvenile offenders was developed. The book court
describing the model was published in the year 2003. The Croatian Victim offender
Association for Out-of-Court Settlements was established the same mediation
year. Seventeen of the professionals who received training in the
project started to work, and are still working on victim offender
mediation for juveniles in three small victim offender mediation Mediator’s
services
services in Zagreb, Osijek and Split. They operate as independent
services, but carry out their activities in collaboration with the local
prosecutors’ offices and the local centres for social work. Successful Unsuccessful
The Croatian model of victim offender mediation is presented
in Figure 11. After an offence has been committed and police
investigation has been carried out, the public prosecutor for minors Positive report Negative report to
is informed who then makes a decision to put the case through Figure 11 to public prosecutor public prosecutor
a pre-trial procedure. During the pre-trial procedure which is Model of juvenile victim offender
for minors for minors
conducted in the office of the public prosecutor for minors, the mediation (adapted according to
Decision not to
victim and the juvenile offender are offered to participate actively Aussergerichtlicher Tatausgleich, Decision to institute
institute criminal criminal proceedings
in the process of resolving issues arising from the offence. Before 1997; Koller-Trbovic et al. 2003) proceedings
the process of mediation starts, both parties have to give their free
consent to participate to the public prosecutor for minors. The 3.9.3 Evaluation
process of mediation is carried out in one of the three mediation
services in Croatia by a licensed mediator. After the process is Generally, evaluation has shown that the recidivism rate for
completed, the public prosecutor for minors is informed about juveniles who participated in victim offender mediation processes
its results. A report to the public prosecutor is made and if the was significantly lower (10%) than for other types of sanctions
mediation is pronounced successful by the mediator, the public for juvenile delinquents (30%). Also, all statistics and evaluation
prosecutor may decide not to institute criminal proceedings. carried out until now in Croatia have demonstrated that this
informal, educational and correctional measure aimed at solving
problems arising from juvenile crime out of court is very successful
Criteria for successful victim offender mediation are: and efficient.

• the juvenile offender accepts responsibility for the offence; Here are some of the results of evaluation (Kovačić 2008) carried
• victim and offender give their informed consent
to participate in the mediation process;
out in 175 cases of victim offender mediation completed between
2001 and 2006 in Zagreb:
• an agreement is reached and signed by both parties;
• fulfilment of the agreement; • mediation processes lasted up to 3 months in 80% of cases;
• fulfilment of the agreement by both parties; • at the time, most offences were: burglary (35%), aggravated
• report on the success of the mediation to
the public prosecutor for minors;
assault (24%), theft (19%), violation of property (7%) and other,
mostly violent behaviour of some kind (15%);
• the public prosecutor decides not to • almost 70% of offences were violent offences of some kind;
institute criminal proceedings; • most offences (61%) were committed by one offender;
• characteristics of victims included: 94% of victims were private
persons, predominantly male, aged 21 or older;

174 ////////////////////////////////// +++++++++++++++++++ 175

• characteristics of offenders included: 95% were male; 60%
minors (14 to 18 years of age) and 40% were young adults (18
to 21 years of age); 93% of offenders had not been previously
known to the local centre for social work;
• most mediation outcomes were: in 58% of cases – apology to
the victim and financial compensation; in 26% cases – only
an apology; in 16% cases – other (financial compensation,
humanitarian work, returning stolen things, joining treatment
for drug addicts, symbolic compensation, etc.);
• victims were satisfied with the mediation process and the
agreement in 95% of cases and offenders in 94% of cases;
• for 86% of cases, the public prosecutor for minors made a
decision not to institute criminal proceedings;
• the rate of recidivism was 9.7% (17 offenders committed offences
again – mostly in the case of possession of drugs).
Ass. Prof. Dr. Vasso Artinopoulou
Panteion University of Social and Political Sciences (Greece)
3.9.4 Conclusion Contact +++ vartinopoulou@[Link]

All conclusions that can be made regarding victim offender mediation in Croatia bring us to a paradox.
Although this out-of-court sanction which is also a service to the community is very successful it is
not developing in the sense that new mediation services are not being established in Croatia. It can
only be hoped that in the next decade already existing plans for training new mediators, establishing
3.10
new mediation services in all Croatian regions, developing the model of victim offender mediation to
suit adult offenders and joining the European VOM network will be fulfilled. Victim Offender
References Mediation
• Koller-Trbović, N., B. Cvjetko, M. Koren-Mrazović and A. Žižak (eds.) (2003) Model izvansudske nagodbe u kaznenom in Cases of
postupku prema maloljetnicima i mlad-im punoljetnicima. Zagreb: Ministry of Health and Social Welfare, the Office of
the State Attorney, Faculty of Education and Rehabilitation Sciences of Zagreb University Domestic Violence –
• Kovačić, V. (2008) Evaluacija uspješnosti izvansudske nagodbe u stručnoj službi za izvansudsku nagodbu Zagreb.
(Diplomski rad.) Zagreb: Faculty of Education and Rehabilitation Sciences of Zagreb University
• Verein für Bewährungshilfe und Soziale Arbeit (1997) Aussergerichtlicher Tatausgleich Information. Vienna
the Greek Experience
• Zakon o Sudovima za Mladež (1997) Narodne novine, vol. 1997, no. 111; vol. 1998, no. 27; vol. 2002, no. 12

Documents

• United Nations (UN) – General Assembly, Resolution no. 40/33 (29 November 1985) Standard Minimum Rules for the 3.10.1 Introduction
Administration of Juvenile Justice (The Beijing Rules)
• UN – Committee on the Rights of the Child, Resolution no. 44/25 (20 November 1989) Convention on the Rights of the Domestic violence, an issue that has been studied for over 30
Child ([Link]/Depts/dhl/res/[Link]) years, is defined as a kind of abuse and a violation of human rights
• UN –General Assembly, Resolution no. 45/112 (14 December 1990) Guidelines for the Prevention of Juvenile Delinquency which affects the more dependant members of the family, such as
(The Riyadh Guidelines) children and women. It is an issue addressed not only by the national
authorities in Europe, USA, and other countries, but also by the
European and International Organizations (European Union, Council
of Europe, UN, etc). Its various aspects (physical, sexual, verbal,
psychological domestic violence) have been widely recognized.
Research into the field also discloses the hidden aspects of domestic
violence such as victimization, offender’s profiles, as well as the

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post traumatic impact on victims. Domestic violence prevention strategies have been implemented being dealt with. We suggest that both propositions have to be
at national, regional and community levels and have mainly produced favourable results. According realised, depending on the number and nature of the cases of youth
to the evaluation of the implementation of the Beijing Platform for Action, most European countries delinquency and the needs of the community as well.
have already reviewed their laws or created new laws on domestic violence. The latest was Greece, Restorative justice practices for adults include the victim’s
where the Parliament passed a new law on domestic violence in 2006, Act 3500 of 2006 on Confronting compensation, community service and victim offender mediation.
Domestic Violence and Related Issues, which entered into force in 2007. These measures are clearly provided by laws. But, at the level of
Restorative justice as a current trend in criminology addresses the issues of dealing with offences implementation there are still problems arising from the lack of
outside or within the borderlines of the criminal justice system, with the participation of offenders, social services’ coordination, and the lack of evaluation and follow-
victims and their community, aiming both at healing the harm and/or damage done to the victims and up strategies as well as the shortcomings in the reporting system.
at restoring and/or strengthening the social bonds of the community. Restorative justice either as a Alternative dispute resolutions (hereinafter ADR), victim offender
social movement or as a trend in criminology has also been of interest to European and international mediation by police officers in civil law cases and victim offender
organizations and to the national authorities in Europe, USA, and Australia etc. A large number reconciliation are the most prevalent informal restorative justice
of restorative justice programmes have been implemented and evaluated as being favourable for practices in Greece, implemented by lawyers during the pre-trial
juvenile offenders, minor offences and offences against property, as well as decreasing the workload criminal process. Attempts to mediate and/or reconcile can also
of the criminal justice system (Bazemore and Walgrave 1999; Johnstone 2003; Bazemore and Schiff be carried out by judges before the trial.
2005; Fattah and Parmentier 2001; Roche 2003; Braithwaite 2002). Victim offender mediation, social Furthermore, there are restorative justice programmes
mediation, alternative dispute resolution schemes, peer mediation, conferences and other forms of implemented at a local level, namely community mediation
conflict resolution strategies are among the restorative justice practices that have been used widely programmes (e.g. the Social Mediation Centre at the Municipality of
during the last 15 years. In Greece, penal mediation as a form of victim offender mediation is also Korydallos, West Attica, since 2000) and peer mediation programmes
allowed by law in minor cases of domestic violence, as we will analyze in the following. (For more on at certain high schools in Athens (such as the Ionideios School
restorative practices in Greece, see also article 3.5 in this publication). Mediation Programme and the Varvakeios Mediation Programme).
Gender perspective is important to take into account in domestic violence as well as in restorative However, the need for strengthening and empowering restorative
justice issues (Curtis-Fawley and Daly 2005; Hudson 2002). Gender inequalities and imbalances justice practices is addressed not only by criminologists in Greece,
affect the victimization potentials and the risks to families and the society as well (Daly and Stubbs but also by European programmes on restorative justice, such as the
2006). Gender issues are also discussed in the present article, with particular emphasis to the debate AGIS project “Restorative Justice: an agenda for Europe. Supporting
concerning the appropriateness of victim offender mediation in cases of domestic violence. the implementation of restorative justice in the South of Europe”
Last, but not least, some suggestions are included for the improvement of penal mediation in (European Forum for Restorative Justice 2008).
domestic violence cases and for areas where further evaluation research is needed.
3.10.3 Victim offender mediation – penal mediation in Greece
3.10.2 Restorative justice in Greece: an overview
Victim offender mediation (VOM) is described in the explanatory
The debate on restorative justice has recently been opened in Greece, in legal and social circles. The memorandum of the Council of Europe Recommendation R(99)19 on
introduction of penal mediation, or more precisely, victim offender mediation caught the interest of mediation in penal matters. The following are also part of the European
judges, public prosecutors, lawyers, criminologists, and social workers. It is beyond this article’s legal background concerning penal mediation in member states:
scope to discuss the reasons why Greece has not corresponded to (or better followed) the restorative Resolution 2002/12 on the Basic principles on the use of restorative
justice movement which evolved in Europe, USA and Australia. We suppose that the difference in justice programmes in criminal matters of the Economic and Social
legal systems and cultures are the key factors in determining whether the demands and guidelines Council, and the Guidelines for a better implementation of the existing
of trends and/or movements shaped abroad are adopted or not. recommendation concerning mediation in penal matters by the
Restorative justice practices are widely implemented in the field of juvenile offending. Greece has European Commission for the Efficiency of Justice [CEPEJ(2007)13].
special laws for juvenile delinquency, focusing mostly on social support and social services rather
than on retributive and punitive treatment of juveniles. Act 3189 of 2003 on the Reform of Criminal [Link] VOM in general
Legislation for Juveniles and Other Regulations strengthens this perspective by reducing reformatory Victim offender mediation is a face to face meeting that usually
measures for young offenders and introducing restorative justice practices, such as compensation, involves the immediate parties (there may be more than one
victim offender mediation and community service. Strengthening the young offender’s feeling of offender or more than one victim) meeting in the presence of a
responsibility, addressing the victim’s needs and promoting a non stigmatizing attitude are the main specially appointed mediator (who may be a volunteer or a paid
elements of restorative justice in dealing with juvenile delinquency, as implemented in Greece. professional). The mediation process may be conducted with both
Increased responsibilities and duties have been assigned to the Juvenile Probation Service, which parties present (direct mediation) or if the victim is not willing to
supports the preparatory work, as well as the decision making process of the Juvenile Courts. There meet the offender, in separate meetings with each party (indirect
are constant requests from professionals in the Juvenile Probation Service either to be trained mediation). There are many variants of this model (Miers 2001;
as mediators or to collaborate with the social mediation centres where the reported cases are Wall et al. 2001).

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 In some of these programmes the mediators are criminal provisions. Violence constitutes evidence of marital breakdown,
justice personnel specially trained to carry out mediation, usually and bad exercise of taking care of children and juveniles.
social workers or probation officers, but they may also be police The law also provides support measures for the victims, social and
officers, or staff of courts and public prosecutor’s offices. In some psychological support is provided to the victims by relevant agencies
programmes, independent mediators (professionals or volunteers) and organizations (Sec. 21). The victim’s right to be informed by the
without a judicial function are used. police authorities about the progress of the case is also mentioned.
Victim offender mediation may also be run by a special agency or According to Section 22, if the victim of domestic violence faces
authority, such as the police, the probation service, the public prosecutor, financial difficulties, the state must fund his/her legal representation.
the court or an independent community-based organisation. In the case of The obligation of reporting cases of domestic violence is also
independent programmes, these may be based on organisations involved regulated by the new law. The role of teachers in reporting domestic
in victim support or on community-based treatment programmes for violence is pointed out (Sec. 23). More specifically, it is set out that
offenders, or may be set up specifically to carry out mediation. In some teachers, when they are informed of or when they realize that a crime
cases, the programme is run by a number of agencies through an inter- of domestic violence has been committed against a pupil, have the
agency steering committee. obligation to inform the director of the school unit, who thereafter
This type of mediation may be used at any stage of a case. It reports the crime to the public prosecutor and the police.
may be associated with diversion from prosecution, or be used in However, the law excludes certain forms of violence (i.e. verbal,
conjunction with police cautioning, it can be ordered parallel to psychological) and intervenes to punish only the “more serious
prosecution, constitute part of a sentence or happen after sentence. and repulsive forms of violence” (as reported in paragraph 2 of the
An important difference is whether or not the mediation will affect “rationale of the law report”). Furthermore, further structures to
judicial decisions, as for example in cases where the discontinuation help victims of domestic violence need to be created, as described in
of prosecution depends on an acceptable settlement, or the the law. Existing structures are not sufficient for meeting the needs
agreement is put to the court as a recommended order or sentence. of all the domestic violence victims. Although the Act on Confronting
The need for control or judicial supervision is much greater if Domestic Violence does mention support structures for the victims
mediation has an impact on such decisions. and therapy programmes for the offender, no such structures have
Some victim offender mediation programmes are applicable to been implemented so far.
any type of offender, whereas others work only with juveniles or with Victim offender mediation is provided only for misdemeanours. It is
adults, while a few work only with one type of offence, for instance the task of the public prosecutor to bring the victim and the offender of
shoplifting, robbery or violent offences. Some programmes are the domestic violence together, aiming at restoring the harm/damage
mainly aiming at minor offences or first-time offenders yet others done to the victim.
target more serious offences or even repeat offenders. Sections 11–14 regulate the victim offender mediation process
(see the steps of the process in the text highlighted). Thus mediation
[Link] VOM in Domestic Violence Law is possible only in cases of domestic violence that qualify as
Penal mediation was introduced in Greece by the Act on Confronting misdemeanours, and not felonies. The public prosecutor is responsible
Domestic Violence (Act 3500 of 2006) which regulates several for carrying out the mediation process. The process takes place before
issues. Introducing mediation in criminal matters was necessary pressing charges or before trial and is used as part of the criminal
for Greece in order to harmonize its national laws with the Council process. Depending on the mediation’s results the case is either fully
Framework Decision (2001) and European law before the deadline dropped (alternative/diversion procedure) or the formal criminal
for the compliance expired. Research also pointed to the fact that
in cases of misdemeanour of domestic violence, mediation had More specifically, the steps of victim offender
previously already been informally implemented by police officers mediation are the following.
or lawyers to a large extent. Regulating the process and the rules
of mediation was a step towards the legality and legitimization of 1. For the VOM procedure to begin, the consent of both the victim
restorative justice in the Greek criminal justice system. and the offender is required.
The Act on Confronting Domestic Violence covers several
maltreatments such as marital rape, dating violence, and the violating 2. The offender declares his/her willingness to:
the prohibition of children’s corporal punishment. It also recognizes • to stop any further act of victimization,
the vulnerable situation of pregnant women, children and persons • to attend a therapeutic counselling programme provided by
with special needs, either as victims or as witnesses of violence (see a public health institution, and
Sec. 6, subsec. 3). • to repair/restore any harm/damage done to the victim of
Also civil law consequences derive from the criminal law the violence (compensation to the victim is also included).

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 3. If the actions mentioned so far have been carried out, then the public
prosecutor drops the case, does not press charges and deletes The appropriateness of adopting a gender perspective when applying restorative justice practices
the case from the records [Sec. 43 subsec. 1 and Sec. 47 Greek in domestic violence cases
Penal Procedure Code]. The criminal procedure is discontinued. Domestic violence and abuse lies in gender inequalities and power imbalance. Gender and race
discriminations are reflected in cases of domestic violence. In the abusive relationship, the husband/
4. If any of the previous conditions are violated within a three- partner often apologizes and asks for forgiveness, promising that violence will stop and never happen
year’s period, the case is brought back to court and the criminal again. Every time, it is promised that that was the last time that violence happened. However, research
procedure continues at the stage before mediation (as if findings verify that the events of domestic violence escalate and usually will not stop until the abused
mediation had never taken place). woman leaves her home and her husband.
In Greece, domestic violence research attests these findings (Artinopoulou 2006). So, the main
5. No other attempt to mediate is permitted for the same offence. questions are: Is the “trauma of victimization” restorable through the offender’s forgiveness and
egynél több mediációs eljárás. reconciliation? Or, is there any space to restore the violent relationship? These are the questions
raised by women’s rights organizations and NGOs in Greece concerning the implementation of penal
procedure is resumed. mediation in minor offences of domestic violence. According to their views, the priority should (or
must) lie in the protection of human dignity, in the victim’s rights and women’s rights, as opposed
When discussing the legal regulation of penal mediation we postulate that introducing VOM in the to family, as a social institution. Feminists seem to insist on the offender’s punishment through the
legal tradition of the Greek criminal justice system – even only in cases of domestic violence – was criminal justice system in cases of domestic violence and sexual offences, pushing victim offender
an innovation. However, at the same time a series of problems and contradictions have arisen. The mediation to the margin of the criminal justice system. Such a debate has been reflected in press
“grey zones” of implementing penal mediation in domestic violence are discussed below. releases and publications of organizations such as the National Committee on Human Rights, the
Feminist Network, the Greek Department of International Amnesty, the Greek Observatory for Violence
The lack of a wider dialogue on mediation and restorative justice against Women, etc.
Being aware that legal tradition changes slowly, penal mediation and other possible changes within Trying to relate the issues of domestic violence, VOM and the gender issue is like skating on thin ice.
the Greek criminal justice system presuppose a dialogue on restorative justice issues and the The debate on the appropriateness of restorative justice for violence between partners, sexual and
implementation of pilot programmes as well. This did not happen in Greece prior to the legislation, domestic violence, reflects the gap between restorative justice’s defenders and opponents. Research
only as an aftermath of the legislation and the introduction of VOM. findings do address a number of risks of gender discrimination in restorative justice procedures (Daly
Professionals in the criminal justice system have distinct, clear and specialized roles (including the and Stubbs 2006: 17), such as:
public prosecutor). They have – mostly – a legal and judicial background. The adoption of restorative
justice (as a system of both values and practices) challenges the flexibility of the criminal justice • the victim’s safety, reinforcing abusive behaviour and possible re-victimization;
professionals’ attitudes, ideology and training. So, there is a need not only for training, awareness • gender power imbalances in the mediation process (VOM, conferencing cycles);
campaigns and public dialogue in order to prepare the ground for implementing restorative justice
programmes, but also for social and criminological research to explore the “space” for restorative
• regressing by turning the issue of violence against women
from a public issue into a private incident (re-privatization of the issue).
justice changes within the criminal justice system (e.g. a complementary or alternative role to the
criminal justice system). It is argued that apart from the offender’s punishment, apart from the real and the symbolic functions
of criminal law, the victim’s rights and welfare status need also to be protected. The plurality of
Potential role diffusion when the public prosecutor mediates alternative procedures and practices within (or on the borders of) the criminal justice system should
The public prosecutor’s profile is different from the mediator’s one. The prosecutor is a judicial offer the victims an opportunity to choose the appropriate programme/intervention/strategy of conflict
functionary, with a status similar to that of a judge. He/she “guards the law” and is present throughout resolution that meets their own needs.
all the stages of the criminal procedure i.e. in the beginning and the end of the criminal process (police, If we are really interested in empowering the victims’ voice, we have the obligation to provide them
investigation, trial, supervision of sentences). He/she acts under the principle of legality and has no with multiple choices. Dichotomies, such as retributive vs. restorative justice constitute a kind of
discretionary power to charge someone for a less serious crime than the one he/she has sufficient pseudo-dilemma rather than real questions.
evidence for. Charging the suspect with a less serious crime would be a violation of the prosecutor’s
duty. In the case of VOM in minor offences of domestic violence, he/she acts under the principle of 3.10.4 VOM Evaluation in domestic violence cases
opportunity as an exception to his/her duties otherwise.
The mediator on the other hand is a trained professional, who is familiar with social, psychological The filtered reporting of domestic violence cases in Greece, the problems of implementing the
disciplines and human sciences. He/she should be recruited from all sectors of society and should mediation process, and the lack of follow-up evaluation are some of the problems in the evaluation
generally possess a good understanding of local cultures and communities. A mediator should be of this type of restorative justice.
able to demonstrate the sound judgment and inter-personal skills necessary for mediation. His/her
conduct is regulated by the Code of Practice and Ethics. [Link] Filtering the cases of domestic violence
We suggest that the prosecutor needs to receive training on mediation techniques and procedures How many cases of domestic violence come into the criminal justice system, which of them are
or should be assisted by a mediator (trained in family mediation). misdemeanours, which are liable to victim offender mediation according to the provisions of law

182 ////////////////////////////////// +++++++++++++++++++ 183

 mentioned above? in the dark) and even fewer have proceeded to the next stage of
We are aware of the hidden facets of domestic violence and criminal investigation. Victims of domestic violence do not trust
women’s abuse. A lot of such crime remains in the dark. Findings the (punitive) responses of the criminal justice system. Two years
from a large-scale victimological research conducted in Greece after the enactment of the law, only a small number of domestic
show that only 9.4 % of domestic violence incidents are reported to violence cases have been reported, and have been found appropriate
the police (Artinopoulou 2006). These are mostly cases of physical for victim offender mediation, as set out by relevant law. However,
and/or sexual abuse where the victims suffer severe injuries for measures for better implementation of penal mediation have been
which hospital treatment was necessary. applied focusing mostly on the prosecutors’ awareness of penal
Minor cases of domestic violence (misdemeanours) are usually mediation procedures. A code of practice is also necessary.
not reported to the police, so information concerning these incidents
is very limited in the criminal justice system. Psychological and 3.10.5 Conclusion
verbal abuse within the family is not included in the legal definition
of domestic violence, according to Act 3500 of 2006. However, these It was a rather “risky” choice to select the law of domestic violence
types of domestic violence are the most prevalent according to as the first area of law in which victim offender mediation (VOM) was
research findings in Greece: 1 out of 2 women of the population introduced in the Greek criminal system. The appropriateness of
sample (56%) report have suffered these types of abuse from their mediation and restorative justice in gender issues, such as domestic
spouse or partner (Artinopoulou and Farsedakis 2006). These cases violence, has been questioned even in countries with a long
could have been well suited for family mediation and/or victim tradition in restorative justice and alternative dispute resolutions
offender mediation, but at the time no such opportunity existed. programmes.
The compliance with European law constitutes a sine qua non
[Link] Problems in implementing VOM condition for the harmonization of the legislation in the context
VOM is a new institution and practice in the Greek criminal justice of European integration. However, preparation is needed before
system. An interesting debate began amongst the judicial and legal major changes can actually take place and the introduction of
communities. Symposia and conferences have been held in Athens new institutions such as penal mediation in the criminal justice
addressing the issue of penal mediation. A circular was published system is also crucial. Adopting restorative justice programmes at
by the General Prosecutor of the Supreme Court (Areios Pagos), a national level presupposes research, preparation and information
clarifying implementation issues arising from the application of with regard to the possible changes both in the criminal justice
penal mediation to domestic violence cases. Furthermore, in each system and in society as well.
region of the country a prosecutor is specifically appointed for penal
mediation. Findings from qualitative research conducted among References
public prosecutors (interviews) show that supporting attitudes are
more prevalent than opposing ones. The need for special training • Artinopoulou, V. (2006) Women abuse within the family. (in Greek) Athens:
in penal mediation is also mentioned as well as the support of the Nomiki Bibliothiki Publishers
mediation procedure by both experts and mediators. Addressing the • Artinopoulou V. and J. Farsedakis (2006) La Violence contre les femmes exercée
content of the therapeutic/counselling programmes for offenders par leurs conjoints ou compagnons- Données de la premičre recherche
and the need of accreditation is also emphasized. épidémiologique effectuée en Grèce. In: Une Criminologie de la tradition a l’
innovation, En Hommage a George Kellens. Larcier: 81–88.
[Link] Is evaluation and follow-up provided? • Bazemore, G. and L. Walgrave (eds.) (1999) Restorative Juvenile Justice,
During the three-year period needed for completing the mediation, repairing the harm of youth crime. Monsey (NY): Criminal Justice Press
continuous evaluation concerning the offender, the victim and the • Bazemore, G. and M. Schiff (2005) Juvenile Justice Reform and Restorative
family members has to be provided. The impact of the therapeutic/ Justice: building theory and policy. Cullompton (UK): Willan Publishing
counselling programme on the offender’s behaviours, the victim’s • Braithwaite, J. (2002) Restorative Justice and Responsive Regulation. Oxford:
recovery and the restoration of the relationship are key issues to Oxford University Press
be evaluated. Follow-up research – after the three-year period – • Curtis-Fawley, S. and K. Daly (2005) Gendered Violence and Restorative Justice.
contributes to further evaluate the mediation process. However, Violence against women, vol. 11, no. 5 (May): 603–638.
no evaluation and follow-up is provided during the course of the • Daly, K. and J. Stubbs (2006) Feminist engagement with restorative justice.
mediation. Theoretical Criminology, vol. 10, no. 1): 9–28.
Given that, two years after the introduction of penal mediation • European Forum for Restorative Justice (2008) Final report of the AGIS
in minor offences of domestic violence, only very few cases have project “Restorative Justice: an agenda for Europe. Supporting the
been reported to the police (a large amount of offences remain implementation of restorative justice in the South of Europe”. Leuven

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 ([Link]) Dr. Theo Gavrielides
• Fattah, E. and S. Parmentier (eds.) (2001) Victim policies and criminal justice Race on the Agenda and Independent Academic Research Studies (United Kingdom)
on the road to restorative justice. Essays in honour of Tony Peters. Leuven: Contact +++ [Link]@[Link]; [Link]; [Link]
Leuven University Press
• Hudson, B. (2002) Restorative Justice and Gendered Violence: Diversion of
Effective Justice? British Journal of Criminology, vol. 42, no. 3: 616–34.
• Johnstone, G. (ed.) (2003) A restorative justice reader. Portland (OR): Willan

3.11
Publishing
• Miers, D. (2001) An International Review of Restorative Justice. Crime
Reduction Research Series Paper 10. London: Home Office
• Roche, D. (2003) Accountability in restorative justice. Oxford: Oxford
University Press
• Wall, J. A., B. J. Stark and L. R. Standifer (2001) Mediation: A current Review
and Theory Development. The Journal of Conflict Resolution, vol. 45, no. 3: Restoring Relationships:
370–391.
Hate Crimes and
Documents

• Council of Europe (CoE), European Commission for the Efficiency of Justice,

Restorative Justice
CEPEJ(2007)13 (7 December 2007) Guidelines for a better implementation of
the existing recommendation concerning mediation in penal matters
• CoE, Committee of Ministers, Recommendation no. R(99)19 (15 September
1999) concerning mediation in penal matters
• Council Framework Decision 2001/220/JHA (15 March 2001) on the standing 3.11.1 Introduction
of victims in criminal proceedings ([Link]/LexUriServ/LexUriServ.
do?uri=OJ:L:2001:082:0001:0004:EN:PDF) Violence in all its forms is a matter of concern. However, violence
• United Nations − Economic and Social Council, Resolution no. 2002/12 (24 that also corrupts our ability to function and live together as a
July 2002) Basic principles on the use of restorative justice programmes in society, and denies our humanity and value as human beings is
criminal matters ([Link]/ecosoc/docs/2002/Resolution%[Link]) a cause for even greater concern. Hate crime is one example.
It is defined as “a crime where the perpetrator’s prejudice
against any identifiable group of people is a factor in determining
who is victimised”.47
Hate crimes have long been ignored by policymakers, but from
the 1990s and especially after the 11 September tragic events, they
have become a significant area of concern for public policy. For
example, only one year after 11 September, Human Rights Watch
warned the US government that its officials should have been better
prepared for the hate crime wave that followed the terrorist attacks.
For example, an increase of 1.700% was recorded with regards to
anti-Muslim bias crime.48 The hate crimes that followed the 9/11
events included murder, beatings, arson, attacks on mosques,
shootings, vehicular assaults and verbal threats. This violence was
directed at people solely because they shared – or were perceived
as sharing – the national background, or religion, of the hijackers
and al-Qaeda members deemed responsible for attacking the World
Trade Centre and the Pentagon.
47
See Association of Chief Police Officers
In the United Kingdom, the 2000 British Crime Survey estimated (ACPO) 2007. Also see Recommendation 12,
that there were 280.000 racially motivated incidents in England and Stephen Lawrence Inquiry Report (1999).
Wales. In 2005, the Crown Prosecution Service (hereinafter CPS) 48
See at [Link]
prosecuted 4.660 defendants for racially aggravated offences, up september11/.

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by 29% from 3.616 for the previous year. The Metropolitan Police alone reported 11.799 incidents statutory agencies. It is not until recently that criminologists started
of racist and religious hate crime and 1.359 incidents of homophobic hate crime in the 12 months to to seriously think about the definitional issues surrounding this
January 2006. In October 2006, one year after the London bombings by terrorists, the Greater London type of crime. The lack of consensus, for example, around what
Authority (hereinafter GLA) published a thorough report on Muslims in London. It noted: “There were constitutes a “racial attack” or “hate crime”, made the studying of
269 incidents of religious hate crime across all faith groups in the Metropolitan Police area between 7 this phenomenon even more difficult.
July and 31 July 2005, compared with 40 incidents over the same period in 2004. Increased attacks were In addition, varying definitions also lead to problems in real-
primarily directed against Asian and Muslim people. In 2005–2006 there were 1.006 reported faith hate world application, such as inconsistency in public policy and judicial
crimes, an increase of 469 (87%) since 2004. At the same time, reports from Metropolitan Police Service decisions. For example, in the UK, John Laidlaw, a 24-year-old
(hereinafter MPS) community contacts continue to note the possibility of a large gap between reported British National Party (hereinafter BNP) supporter who vowed to
and experienced incidents” (GLA 2006). In addition, the homophobic crime is still highly prevalent in the “kill all black people” and shot several others, was found to not
capital.49 In April 1999, three people died and many more were injured as a result of the bombing of the have been motivated by racial hatred. The Times reported that
Admiral Duncan pub; in November 2004, David Morley was killed as a result of a homophobic attack; “Judge Samuel Wiggs, sentencing Laidlaw at the Old Bailey, made
in October 2005, Jody Dobrowski was beaten to death in Clapham. A 2003–2004 study by Stormbreak no finding that the shootings were racially motivated” (Bird 2007:
showed that 45% of people from lesbian, gay, bisexual and transgender (hereinafter LGBT) communities 31). However, this was not the man’s first hate offence. In May 2008,
had experienced a homophobic crime and 20% had been a victim of actual physical assault. According Laidlaw opened fire on two black men in the space of half an hour
to a 2006 study by Victim Support, between half and two-thirds of LGBT people have been victims of in North London. In that incident, one man was left fighting for his
hate crime, with LGBT people from Black Asian and minority ethnic (hereinafter BAME) groups 10% life after being shot in the neck, while another individual was hit
more likely to be victims of hate crime. Ageism, disabilism and sexism can also lead to hate crime. For in the back. Laidlaw had been shooting at Evans Baptiste, 22, who
the purposes of this article, the analysis will now focus on racist behaviour that leads to hate offences. recognized him as the man who had attacked him with a hammer
In the search of practices and policies that can bring balance to community tensions, and address earlier that year. Less than three weeks before the attempted
integration questions and inequalities, restorative justice principles and practices might appear appealing. murders, Laidlaw was given an 18-month supervision order for
The use of restorative justice in resolving international tensions such as those that followed the Rwanda aggravated bodily harm and abuse towards Ayandele Pascall, a
genocide – otherwise called gacaca justice – make restorative justice topical for western democracies black man, who had beeped his car horn at him.
(Tiemessen 2004). In the United Kingdom, 1993 was a critical year for the theoretical
Criminal justice practitioners and victim support workers are keen to explore the prospects of the and legislative development of race hate crime including its
restorative justice (RJ) paradigm with more serious crimes such as hate crime. However, RJ practices,50 definitional challenges. Stephen Lawrence, a black teenager, was
both in the United Kingdom and internationally, are largely being used for minor offences and juvenile attacked and stabbed by a group of five white youths while he was
offenders. According to the RJ theory, the new paradigm can provide alternatives that can either waiting for his bus in Eltham, South London. The investigation that
complement or replace the traditional criminal justice system (Gavrielides 2005: 84–106). Therefore, a gap followed as well as the processing of this case became the focus
seems to appear between the theoretical claims of RJ’s potential and its actual delivery. However, little of a special inquiry. Among other things, it showed that there is
legislative or political support has so far been given for the use of restorative practices with hate crime cases. institutional racism not only in the police force, but also in other
The objective of this article is to explore the gap between RJ’s theory and practice with hate crime, and public services.
start a debate that will inform policymakers and criminal justice practitioners about the potential use In 1998, the Chief Constable of Greater Manchester acknowledged
of alternative dispute resolution processes with race related violence. that his police force possessed a degree of institutional racism.
The article has been split into five parts. First, it will attempt to deconstruct hate crime to understand Giving evidence at the Stephen Lawrence inquiry, he said: “We have
its causes and effect, as well as the definitional issues surrounding it. Second, it will identify the gaps a society that has got institutional racism. Greater Manchester
of the extant literature on hate crime and proceed with recommendations for further work that needs Police therefore has institutional racism”(Cathcart 1999). At the
to be done in the area. Third, it will aim to understand why RJ practices with hate crime have not been same time, a spokesman for the Metropolitan Police was arguing
favoured by the legislator and policymakers despite the theoretical proclamations and research evidence that the two police chiefs were using different definitions. “The
that are backing them up. Fourth, the article will provide a list of international case studies where RJ commissioner was talking about institutional racism as being a
practices have been used to address hate crime successfully. This analysis will provide the basis for matter of policy which means that all police officers go to work with
the last part of the article which will posit some recommendations as to how the alleged gap can be a racist agenda” (Green and Grieve 2000). Sir William Macpherson,
bridged and how criminal justice agencies can be supported to work collaboratively with community- who was responsible for the Lawrence inquiry, said: “There is a
based programmes and practices to combat hate crime offences. reluctance to accept that racism is there which means that it will
never be cured” (Cathcart 1999). As a result, the inquiry produced 49
The MPS reported 1.359 incidents of
homophobic hate crime in the 12 months
3.11.2 Deconstructing hate crime what is now commonly accepted in the UK as the definition of a to January 2006.
racist incident: “any incident which is perceived to be racist by the
50
E.g. face-to-face and indirect mediation,
[Link] Defining race hate crime victim or any other person”. This is the definition that will be used family group conferencing, restorative circles
Although hate crime, and in particular race hate, are considered ancient phenomena, they have throughout this article. and boards.
arrived relatively late on the political and policy agendas, and then onto the agenda of various

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[Link] Understanding race hate crime and its causes According to Richard Berk, “The fact that people of one race
may steal from people of another race may simply be a function
Hate crime – a different type of crime of differences in wealth that happen to be associated with race.
Research on hate crime is relatively underdeveloped and hence that aspect of criminological Indeed, the race of the victim may be unknown to the perpetrator
knowledge is limited.51 However, from the 1990s and onwards, hate crime has come to the attention even after the crime is committed (e.g. in a burglary)” (Hamm 1994).
of policymakers and criminologists who most of the time reacted with little knowledge about its Professor Berk uses this example to show the difficulty of finding
causes. Hate crime is different from other types of crimes. There are several key distinctions between specific hateful motivation behind certain offences.
hate crimes and “ordinary crimes”. Criminologists have argued that the elevated rate of victimisation
While most hate crimes involve relatively minor offences, including graffiti, propaganda, harassment, among BAME communities arises to some extent because
intimidation and vandalism, their impact can be much greater and long lasting. For example, hate their members fall into demographic groups that are at higher
crimes are more likely to be directed at individuals than property, often involve patterns of repeat than average risk. They also tend to aggregate in areas where
victimization, evoke a large amount of fear, and the emotional impact of hate crime is much higher victimisation risks are relatively high. The tendency of ethnic
than crimes without a specific motivational element. The International Centre for the Prevention of minorities to aggregate in this way also triggers effects of “non-
Crime report on preventing hate crimes states that: “The most likely offender is an adolescent or mixed multiculturalism”. Examples include: Harlem in New York
young male, living in a poor area with a high level of unemployment and economic instability, and in City (USA), Sabon-garis in Northern Nigeria and Tower Hamlets
a country where there are rapid changes in population. On the other hand, the people most at risk of in East London (UK).52 It could be argued that this form of “human
being victimized are racial and ethnic minority groups or individuals, religious minorities, gays and ecology” encourages social exclusion, stereotypes and prejudice
lesbians, children and young people, and those living in poor areas with high levels of unemployment of residents therein rather than social and community cohesion.
and economic instability” (ICPC 2002). For instance, Kushnick argues that racial violence became an
The major underlying distinction between “ordinary crime” and hate crime is an element of personal issue in England when African and Caribbean communities, along
enmity (or motive) absent in other crimes. Robert Kelly in Hate Crime: the Global Politics of Polarization with other Commonwealth minority ethnic groups were invited to
claims: “Hate conveys that behind a crime is an aversion for the victim or an attraction to a potential undertake unfilled low paying jobs in the booming post-war era.
crime victim, precisely because of his or her perceived individual or social attributes. Sometimes (Kuschnik 1998; Higginbottom and Serrant-Green 2005: 662-686)
an offender’s motive for violence and murder may result from the tacit approval of an audience of Kushnick argues that what followed these groups of various ethnic
“respectable citizens”. Attacking Jews, blacks, homosexuals, and politically proscribed groups may origins were increased prejudice, neighbourhood segregation,
be driven by the key consideration that these people cannot defend themselves and are therefore discrimination, and racism in the work place and other spheres of
vulnerable” (Kelly 1998). Kelly goes on to say that motives may be further complicated by offender life. It should not come as a surprise, therefore, that in the United
ideas that include “audience approval” and the “ratification of complex emotional needs” quite apart Kingdom the phenomenon of racist violence started to be discussed
from practical considerations, including whether potential victims are likely to be affluent. only after the Notting Hill Race Riots of 1958.
With hate crime, inferring a motive is often difficult by looking at the known facts of a crime. In However, it would be naive to think that hate crime is simply due to
the United States, most interracial crimes are not hate crimes. The fact that the offender and the demographic factors. It is far more complex than that. Hate crime is
victim are of different races does not have a direct correlation with the motive. It is usually a chance a phenomenon that is largely due to a “non-mixed multiculturalism”,
occurrence that a certain victim was chosen, and nothing more. For example, a group of young Hispanic political and religious bigotry and social intolerance. Hence it could be
men leave a party and want to get in a fight with the first person they see. It could be anyone: another argued that re-socialising social class, religious bigots and racial fanatics
Hispanic kid, an old black couple, a south-Asian store owner, or a white male jogger. The target is could impact the society’s conceptual orientations, and influence the
selected by random occurrence. The symbolic status (e.g. race, religion, and ethnicity) of the victim social lens through which we view and understand the “Other”.
is irrelevant; one target is as good as any other. For instance, taking the example of Nigeria, it could be argued that
the persistence of inter-ethnic and religious violence – especially
Causes of hate crime among the Lgbos and the Hausa communities – is largely due to
The criminological, sociological, psychological and biological theories around hate crime tell us that religious fanaticism and “non-mixed multiculturalism”. Hence it
this phenomenon is attributed to a number of factors, some of which seem to be more prominent than is not uncommon to hear an Hausa person calling an Lgbo man
others. The limited scope of this article does not allow to elaborate on these theories but merely to iyamiri – which connotes a starving man looking for water to drink
51
In the UK, for instance, the first ma-
refer to them for critical reflection. – and an Lgbo man calling an Hausa man aboki – meaning a fool or jor report on hate crime was published in
One of the main theories behind why hate crime happens is based on the role of economics. While a cattle rearer – when social interactions degenerates in quarrels. 1978 by Bethnal Green and Stepney Trades
Council and was titled Blood on the Streets.
ethnic tensions are thought to increase during economic downturns, a study done in the late 1990s These derogatory terms go as back as Nigeria’s 1960s civil war The report was then followed by the Home
by an American political scientist attempted to refute this analysis (Green 1997). In this study, Green where they were used to consolidate the negative assumptions Office first official study on statistics of racist
incidents recorded by the police.
argued that a weak economy precipitated by a drop in cotton prices did not directly lead to an increase each ethnic group had about each other.
of hate crime activity. However, the study also found that tensions are easily inflamed when a new It could also be argued that the politicisation and the occasional 52
However, some have argued that London
should be treated as a separate example
racial group moves into an ethnically homogenous area, and levels of violence were often directly unethical use of crime statistics, and the role of the media contribute because despite aggregation in certain areas,
correlated with the speed of racial integration. to the negative held assumptions of the “Others”. Members of diversity is still maintained.

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 Radstas, an advocacy group responsible for statistical data, are The speech of Roy Harttersley about black immigrants is also relevant:
concerned at the extent to which official statistical data reflect “Integration without control is impossible, but control without
governmental rather than social purposes. Thus, the lack of control integration is indefensible” (Ohri 1988: 14).
by the community over the aims of statistical investigations, the
way these are conducted and the use of the information produced, 3.11.3 Gaps and scope for further work
the power structures within which statistical and research workers
are employed and who control the work and how it is used is of It becomes apparent that hate crime has implications not just for
concern if hate crime is to be effectively addressed around the the victim and the offender, but also for the community. In fact, it
world. Similarly, the fragmentation of social ecology into “mono- has been argued that prevention of hate crime cannot be achieved
ethnic communities” because of the fear of the “Other” and the without involving the community. According to a 2005 research
obscuring of human connectedness are issues worthy of evaluation study by Runnymede Trust, the following will need to be achieved
if racial violence is to be controlled. at a community level, if hate crime is to be addressed.
The difficulties with statistical recording of hate crime do not stop
there. According to the British Crime Survey, less than half of racist
incidents are reported to the police. In addition, the CPS found that
• Work with potential perpetrators needs to take full account of
the wider social context as well as the local situation in order to
despite efforts to boost confidence in the system, an additional 5% be able to intervene in the most effective way.
of hate crime charges were dropped because there was no witness
testimony (of 6.200 charges brought, 2.506 were dropped). Moreover,
• Work should also take place to challenge the attitudes of
wider society when it condones the racist attitudes of young
in 2004–2005, the CPS reported that 8% fewer charges than last year perpetrators, and in so doing, explicitly or tacitly, gives dangerous
were dropped because of insufficient evidence. Conviction rate for all support to their intolerance.
race offences charged dropped by 2%. The Commission for Racial
Equality said the figures suggested a “difficult social problem that
• Agencies that work primarily with offenders, should consider
how they could have an impact on potential perpetrators and the
continues to blight the lives of many of Britain’s ethnic minorities [...] wider community. For example, how can probation work best
Until all victims and witnesses of these crimes have full confidence engage with a preventative strategy?
that the justice system will deal with them, we will never know the
true extent of the problem”.
• Working together to tackle the racist attitudes of potential
perpetrators calls for the building of strong partnerships
Carr-Hill claimed that official/governmental statistics contribute to between different sectors, especially between those who work
the exacerbation of hate crime in the United Kingdom (Carr-Hill 2006: with potential perpetrators and those who work with black and
16–17). He argued that perhaps the seed of racial violence against minority ethnic communities.
the British minority ethnic groups might have been sown in 1965,
when McClintock brought out one of the Cambridge studies apparently
• Prevention projects that bring together potential perpetrator
and victim groups can be particularly successful if they are
showing that the Afro-Caribbean population was much more likely to clear that one of their objectives is to challenge racist attitudes.
be convicted of violent crime than the native white population. This (Isal 2005)
report, Carr-Hill argued, was at the Home Secretary’s desk when the
first “Race Relations Act” was passed by James Callaghan, limiting The significance of communities as parties in hate crime, suggests
the number of Commonwealth immigrants. Reporting the work of that RJ might indeed be well suited for a holistic approach. According
Hall et al., Carr-Hill further noted that in the 1970s, when there was to RJ’s theories, the restorative norm has the philosophical potential
a “mugging” panic in London, the Daily Mail over-exaggerated the to address sensitive and complex crimes such as hate crime.
Metropolitan Police crime statistics, saying that victims were “reporting Undoubtedly, victims of hate crime experience a range of effects
their assailants as black”. However, this was “because the Daily Mail which can have a long-lasting or sometimes life-lasting impact.
had already told them that muggers were black” (Carr-Hill 2006: 17). These include fear, particularly of repeat attacks, anger, illness
Furthermore, social exclusion and the phenomenon of “non-mixed including depression and physical ailments, trauma in children,
multiculturalism” have often been encouraged by political figures. restrictions in lifestyle and substantial financial loss. Statistics have
Examples include Enoch Powell’s Rivers of Blood in 1968, and Margaret shown that for various reasons nine out of ten victims had not gone
Thatcher’s “swamping” statement of 1978. There she noted: “People to court although three-quarters said that they would be prepared
are really rather afraid that this country might be rather swamped to give evidence if the perpetrator were prosecuted (Victim Support
by people with different cultures [...] the British character has done 2006). Research has also shown that victims are often keen to move
so much for democracy, for law, and done so much throughout the beyond “victimhood” and take a role in supporting other victims or
world, that if there is any fear that it might be swamped, people are changing/engaging their communities. Survivors also want to see
going to react and be rather hostile to those coming in” (Ohri 1988: 15). action taken to tackle the root causes of hate crime.

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 However, the available evidence suggests that the current on the very notion of justice” (Umbreit 2001: 66). However, the
criminal justice system and the available victim support services lack of legislative, policy and financial support for these services
often fail communities and victims in addressing hate crime and its should make us wary and seek for concrete evidence before any
effects successfully. For instance, the Runnymede study showed recommendation is made.
that criminal justice officials, probation officers, community
organisations and individuals are lacking the knowledge and the 3.11.4 Playing devil’s advocate:
confidence to deal with potential perpetrators of hate crime. RJ – a viable option for hate crime?
For victims of hate crime, the main source of support is family
and friends, although a minority reports that their families were Many have argued that RJ might indeed not be the best alternative
the least supportive (especially victims from LGBT communities). for serious offences including hate crime. For example, some have
Other sources include the police, Victim Support and other claimed that RJ practices, such as face-to-face mediation, could
voluntary, community and faith-based organisations. However, a expose victims to further victimisation and trauma. In addition, the
number of barriers often prevent effective delivery of services to ability of hate crime perpetrators to engage in an honest dialogue
victims of hate crime. These include: language barriers, absence has been questioned. After all, why would a racist criminal whose
of services where victims may be referred to due to a lack of attitude towards others has so far been consistent suddenly agree
understanding by mainstream service providers and difficulties in to engage in an honest dialogue? Furthermore, what guarantees
providing practical solutions. can RJ practitioners give to victims that their racist attackers will
Many services are planned and delivered in partnership. However, not hurt them further, or change their minds and retaliate?
those voluntary and community sector organisations whose main Similarly to sexual offenders, perpetrators of racist violence
area of work is not providing support directly to victims are often fall within a special category of criminological interest, where
outside partnerships, and the capacity of agencies to work together criminal behaviour and activity is examined as a phenomenon that
is often compromised by competition for funding. Community-based is attributed to deep-rooted causes. Racist perpetrators might
projects, such as RJ practices, could be used to address some of not be easily susceptible to rehabilitative and community-based
the challenges that the traditional criminal justice system is facing approaches, while victims may be exposed to further victimisation
in addressing hate crime. if brought in contact with them (irrespective of how remorseful the
According to the Home Office, the typical hate offender is a young perpetrator may seem).
white male who lives locally close to the victim. In particular, The reluctance on the part of victims and offenders to participate
according to a 1997 study carried out by Sibbit for the Home Office, in restorative justice is also seen as another challenge. For instance,
factors of deprivation and youth inactivity can encourage racist participation in victim offender mediation requires that both parties
responses in those who are frustrated or insecure in their physical are willing and able to participate in the process. Moreover, there
and social settings.53 “The views held by all kinds of perpetrators is always a feeling of apprehensiveness for the victim when they
towards ethnic minorities are shared by the wider communities are going to encounter the offender. This is particularly true if the
to which they belong” (Sibbit 1997). This “wider perpetrator offence is a hate crime since there is a specific intent to attack
community” as well as the young population that is exposed to an individual because he or she belongs to a specific community.
hate crime philosophies are two groups that RJ has addressed A further difficulty with RJ in addressing hate crime is the concept
successfully in the past. of restoration of the status quo ante. Like tort law, RJ is concerned
Restorative practices are founded upon the principles of inclusion, with restoring the parties to the status quo ante through restitution
respect, mutual understanding and voluntary and honest dialogue. and payment, i.e. the position they would have been in, had the
One could argue that these are core values, which, if ingrained crime not occurred. In cases that deal with property crime – or even
in society, could render hate crime almost virtually impossible. some crimes against the person – this is attainable. But when it
Hence, bringing people face to face with their fears and biases may is concerning a hate crime, this may be more difficult. Prejudicial
help dispel myths and stereotypes that underlie hate attitudes. It attitudes are deeply rooted within a person. Victim offender
may also allow perpetrators to see victims as people rather than mediation may not have the thrust of causing an offender of hate
“the Other”. In fact, it could be argued that the RJ encounter is crime to experience remorse. In fact, it has been argued that in
fundamental to building cross- cultural bridges and integration. most cases, victim offender mediation will meet an arrangement
Thus, Umbreit suggests that “the continuing movement toward that suits the vengeful victim and the middle-class mediator. This
adaptation of the restorative justice paradigm could be enhanced arrangement will lead to ganging up on the young offender, exacting
only if practitioners, advocates and policymakers become the expected apology, and negotiating an agreement to pay back
53
According to the same study, most
homophobic offenders are aged 16–20, and
increasingly sensitive to and knowledgeable about cross- what has been taken from the victim by deducting portions of his/
most race hate offenders under 30. cultural issues and dynamics that impinge on the practice and her earnings from his/her minimum wage job. Therefore, it has

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been said that little social transformation is likely to arise from utilitarian transactions of this sort. The weaknesses of the current criminal justice system are
However, RJ practitioners claim that they can balance, or counter, inequalities among the parties. It the theoretical strengths of RJ. Proponents of RJ claim that, the
is argued that instead of breaking down the barriers and prejudices that the offender and victim bring new paradigm offers a balance between the needs and rights of
to the table, mediation practices are apt to compound pre-existing power and status differences even both offenders and victims regardless of race, gender or religion.
more systematically and seriously than formal judicial processes. Specifically in terms of hate crime, Essentially according to advocates of restorative practices, if the
RJ practices may alienate both the victim and offender in its attempts to bring community cohesion. theoretical version of RJ is applied to hate crime it should bring
They may alienate the victim in the sense that after the crime, community cohesion is not a “live” about positive results. To understand the gap that is created
prospect; they may also alienate the offender for the same reason. It has been argued, therefore, that between theory and practice, instead of engaging in further detailed
RJ practices conceivably maybe more successful in dealing with hate crime if they were implemented theoretical discussion, the article will proceed with an account of
post-imprisonment because at this point heightened emotions have somewhat subdued. case studies where RJ is used successfully to address hate crime
Additional criticism of the use of RJ with hate crime includes its limitation with dealing with cross- in various countries and within different cultural contexts.
cultural orientations where decidedly different ideas of what is required for restoration continue
to prevail. For instance, Umbreit argues that in a multicultural society the cultural background of 3.11.5 Restoring relationships through RJ:
victims, offenders and mediators are often different which, if not carefully handled, “carries a risk of some success stories
miscommunication, misunderstanding, or worst of all, re- victimisation” (Umbreit 2001). Smith also
argues that, “for RJ to work, a broad moral consensus must exist on what is good and bad conduct, [Link] Case study from Israel54 – intercommunity relations
on right and wrong” (Smith 1995: 157). So can a restorative justice process work if the parties involved In Israel and the occupied territories, there is a significant amount
have different conceptions of restoration, or typification of others? Whose idea of “restoration” or of mistrust and dislike between the resident Jewish and Arab
“person typification” should prevail? For example, if a conflict occurs within African-Caribbean populations. This case study involves two young Arab offenders
communities, or African-American communities, restorative processes might seem appropriate, as who committed an armed robbery against a Jewish victim. The
these communities tend to share similar sense of what is required for relationships of social equality Jewish victim experienced the offence as hate crime and an act
to exist – although “within-group” culture dynamics should not be underestimated. But what if one of of terrorism.
the parties is not African or Caribbean? Are the prospects of a successful restorative justice process The young perpetrators, Mohammed and Sami, were interrogated
lessened in the absence of a shared understanding of restoration? and detained in a juvenile facility for fifteen days. Afterward, they
A further challenge facing RJ in dealing with hate crime is the unlikelihood of inspiring moral reflection returned to their houses and were under partial house arrest,
and development. “In theory, bringing the offender to the table to confront the victim face-to-face will enabled only to attend school. A charge was brought against
enable him to realise the cost of his actions in human terms and to resolve to lead a better life” (Delgado them for attempted robbery and conspiracy to commit felony.
2000: 765). However, it is said that it is very unlikely that the offender will have a crisis of conscience upon Mohammed’s father had a heart attack after hearing the news of
meeting the person he or she has victimized in a hate crime. Most often hate crime is premeditated and what his son had done. Sami’s father was immensely embarrassed
is caused from long-lasting negative images of a particular group of people. A forty-five minute meeting by his son’s actions which he saw as a terrible injury to the honour
is unlikely to have a lasting effect if the offender is released to his/her neighbourhood immediately of the family. Since the event, the victim, Sarah avoided passing
afterwards. Delgado claims that this example demonstrates that RJ may be apt to make an offender a through Arab villages. She left her job and other projects that deal
better person, but lacks the long-lasting effect to inspire moral reflection (Delgado 2000). with the Arab community; relations with Arab friends became
Furthermore, it is said that RJ does not have the capacity to address public interest in the way strained due to the trauma she experienced.
criminal law would. “Mediation pays scant attention to the public interests in criminal punishment, Although the young offenders and their families expressed a
particularly retribution” (Delgado 2000). In particular, the symbolic element of a public trial is an strong desire and willingness to correct the damage they had done,
opportunity for society to reiterate its deepest values; loss of that staged public event is a major the victim expressed her absolute reluctance towards any contact.
concern. In a trial where an offender is indicted for a hate crime offence, the community at large has The young offenders tried to contact her around the time of the 54
Taken from Umbreit and Ritter (2006:
99–109).
a chance to express its deepest emotions either to the media or among their own communities in crime, and in different ways they tried to convey their message
mutual dialogue. Yet, if this process is done behind closed doors in which there are sworn testimonies of sulha55 (forgiveness), as is customary in Arab culture. Failing 55
In Israel, as in other Middle Eastern
countries, traditional informal processes
signed by the offender, victim and mediator there is a minimal chance that it will have a significant this, the juvenile probation officer for the boys consulted with of restorative justice exist alongside the
impact in the community because it is individualized and kept in the dark. There is also less of an the Restorative Justice Unit of the Juvenile Probation Services criminal justice system. The most commonly
known is called Sulha (peacemaking).
opportunity for public outcry surrounding a mediation dialogue than a public trial, and for the hate to check out the possibility of mediation between the participants Today it is used much less than before the
crime, it is a poor outlook to be benighted by the community at large. This paradox is more likely to involved. Initially, Sarah expressed reluctance, but after a thorough establishment of the state of Israel 58 years
ago, yet it still prevails among the Arab,
occur in large cities such as London than smaller towns, villages or hamlets. explanation from the RJ team, she decided to go ahead with family Druze and Bedouin minorities. Sulha is used
All in all, it is argued that the traditional criminal justice system aims at uniformity, employing group conferencing. This was attended by Sarah, her husband, her in cases as simple as small disputes, as well
as in the most difficult criminal offences,
a system of graded offences and sentencing guidelines designed to assure that similar cases are eleven year old son, her brother, and her social worker; Mohammed, such as murder or severe corporal damage.
treated alike. The absence of a formal adjudication process is a gap that RJ practitioners must fill. his father, and his mother; Sami, his father and his brother; the In severe cases, Sulha is put into motion
to prevent a blood feud. See also at www.
However, at this moment there is no obvious metric because RJ practices have not been applied on juvenile probation officer for the case; and the case mediator. At the [Link]/library/beth06_goldstein.
a systematic level towards hate crime. beginning, the atmosphere was filled with tension and suspicion. html.

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Sarah retold the events she had experienced. The boys and their parents listened carefully to her The police were able to trace the call and arrested the individual.
words. They then spoke about their involvement and accepted responsibility. Mohammed and Sami The man who first received the messages at the Islamic Cultural
explained that they had no real intention of physically hurting Sarah. They expressed sorrow and deep Centre, Mr. Adi, feared for his and his family’s safety and thus a police
regret for their deeds and explained that they had not considered the difficult consequences of their officer was assigned to protect them. The police officer looked after
actions. When they heard Sarah’s words, they understood the serious implications of their actions. the family’s wellbeing, opened their mail, and routinely checked their
The atmosphere allowed the parties to speak directly about the injuries to parent-child relationships, car for suspicious activity. In the wake of the attacks, Mrs. Adi gave up
education, and neighbourly relations between Jews and Arabs. During the process Sarah and her wearing her traditional head scarf, and her daughter was harassed
family expressed understanding and compassion toward the boys and their families, even a will to by a boy who claimed all Muslims should be shot.
affect their lives in a positive way. For Sarah, the retelling of the story allowed her to vent her feelings After negotiations with the police, the offender indicated a desire
of anger and fear, and this was actually part of the process of healing. The mediation process fulfilled to apologize for his actions and make amends. The prosecuting
her need to be in a safe place, emotionally and physically, without feeling judgmental or guilty. For attorney, who had previous experience with the Community
the boys and their families, this meeting fulfilled the need to live in a society without social and Accountability Board that operated in the offender’s neighbourhood,
cultural injustice, to distance the boys from the criminal subculture, and to reintegrate them into the initiated efforts to seek a mediated dialogue. Three mediators first
community by renewing trust in their place in society. met with the offender. He acknowledged that he had been enraged
The meeting ended with a settlement written by the participants, which was later accepted by the by the pictures and stories of the Twin Towers attack and had made
juvenile court in lieu of a conviction. At the end of the mediation session, which lasted three and a the threatening phone calls to scare the Muslim leader. After the
half hours, all the participants expressed feelings of satisfaction and relief that the process had given calls, he claimed that he was mortified by his actions and wanted
them, allowing them to bridge the conflict, hurt feelings, and thoughts that had disturbed them. The to restore what was done. A week later, the mediators met with the
impact of restorative justice dialogue offers a glimmer of hope to serve as a bridge toward greater Adis who had expressed interest in meeting the individual who had
understanding and tolerance among all diverse populations in the region. upset their lives. In addition to wanting to know why the man had
committed the hateful act, they voiced concern for the pain caused
[Link] Case study from London, England – to the entire Muslim community.
Southwark Mediation Centre Soon thereafter, the Adis met the offender face-to-face. The Adis
The hate crime project at the Southwark Mediation Centre in London, UK is a community-based RJ wanted the dialogue to take place in a public way in order to educate
project, which uses a multi-agency approach to the rising levels of hate crime in the community. The and promote healing across the broader community. In addition
project trains and empowers community members to address issues of anti- social behaviour and crime to the mediators, over 20 persons were present representing the
in partnership with the education authority, the police and local and national Government agencies. It community and the justice system. The meeting lasted for roughly
provides a conflict resolution service that works in partnership with enforcement agencies. It is a service two and a half hours, in which the offender made an apology
which is accessible to all members of the community in order to resolve conflicts, reduce aggressive followed by an attempt to explain his emotions and his ongoing
behaviour and assist the community to improve their quality of life, enabling them to feel safer by reducing anger issues. The Adis asked questions about why the offender had
crime and the fear of crime. It enables those who are involved in anti-social behaviour and crime to take made the calls; and pointed out that death threats in Middle Eastern
responsibility for their actions so that victims feel the conflict has been dealt with in a constructive way. culture are very serious. Throughout the meeting, Mr. Adi was aware
Cases are either referred to the mediator by another agency (police, local housing association etc), that the offender never made eye contact with him. Community
or are self-referred. Originally, the project was funded by the Home Office, and then by the Local participants expressed sympathy for the Adis and made clear their
Authority and other independent funding. This will soon come to an end, and the mediation service willingness to help hold the offender accountable while supporting
will be challenged. his efforts to change. Tension prevailed at the meeting’s conclusion.
A 2003 evaluation of the project by Goldsmith University showed that it reduces incidents of repeat Although the Adis remained unsatisfied with the offender’s level
victimisation from 1 in 12 to 1 in 4. The project was also included as a best practice example in the of candour, they agreed to carry out the initial plan of meeting a
2004 Runnymede Trust “Preventing Racist Violence” handbook and the 2005 Office of the Deputy second time. Mr. Adi believed there was still potential for healing.
Prime Minister Toolkit on hate crimes. During a debriefing, a mediator learned that the offender had
Parents who experienced racial harassment and attended the project commented: “Nobody could deal felt “overwhelmed” by the District Attorney’s presence, and under
with this issue until you came along. Now the children are talking. My children can come out now and play extreme pressure to provide the right response. Also, the offender
without being harassed. The young people are even waving hello rather than hauling abuse. The constant said that he had been deeply offended by a community member’s
feedback over the phone (from the mediators) was very helpful...” (Southwark Mediation Centre 2006) comment that he wasn’t fit to raise children. What people did not
know is that the man had lost a baby son. His grief remained turbulent
[Link] Case study from Oregon, US – and he had experienced bouts of depression. Therefore, the mediator
Post 11 September hate crime56 encouraged him to share his story at the next dialogue session.
This case study concerns an incident that took place when an individual twice phoned the Islamic The second meeting began with the Adis asking their questions.
Cultural Centre in Eugene, Oregon, US proclaiming death on the Muslim community in retaliation for They received clear assurance that the man would never commit
the 11 September terrorist attacks. the act again. Community members detailed the ongoing impact of 56
See Southwark Mediation Centre (2006).

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 the crime on the larger community. Further, the offender informed [Link] Case study from Southwark, England –
the group of his counselling progress and of his new job. He also Police, Partners and Community Together in Southwark (PPACTS)
spoke directly about his own loss of his baby son. Sharing that grief
developed a connection with the victims, and the man became more PPACTS was set up as a Targeted Policing Initiative to look at
humane and genuine. After a series of additional questions, Mr. innovative policing. It is a multi-agency partnership of both statutory
Adi was satisfied with the progress, and explained that they were and voluntary organisations with the aim of reducing racist and
ready to move forward. At the Adis’ request, the offender agreed to homophobic crime and incidents in a particular area of Southwark
make a public apology. If that action jeopardized the man’s job, Mr. that had been identified by the police as a hotspot. This project
Adi was prepared to speak to the man’s employer. The Adis also brought together the local Police Force, Victim Support, a Youth
wanted the offender to attend two upcoming lectures on Islam. He Project from the area and various local mediation services that
was also encouraged to cooperate with news coverage of the case, were offered by community-based organisations.
continue his counselling, and speak about his experience to teens at The project used both a problem-solving and a partnership model
a juvenile detention centre. As the meeting ended, Mr. Adi reached to tackle racism and homophobia in the area. The partnership model
across the table and shook the man’s hand. involved taking time to build strong linkages between different agencies
The offender’s apology letter to the Adis and the Muslim and the BAME communities in the area. The problem-solving approach
community appeared on the editorial page of the Register-Guardian involved asking all partners in the project to look at what they could
on 18 November. A front page story also appeared covering the Adi’s do in relation to three intervention strands: supporting the victims,
story. After attending the first two lectures on Islam, the offender dealing with the perpetrators and impacting on the location.
decided to attend more. In this case, RJ served to humanize both This approach allowed for the different agencies involved to
the victim and the offender. If the man was punitively sanctioned, share intelligence and examine the incidents in a wider context.
it is unlikely that there would have been an understanding as to For example, the project found that the young people it engaged
why the crime happened. The community, the offender, and the with, in response to their racist attitudes, were already known to
victim were satisfied by the use of restorative justice to address the police for other non-racially motivated crimes and anti-social
the initial hate crime behaviour. Such information was vital in successfully working with
the perpetrators. Also, such open support for victims of racist
[Link] Case study from Slough, England – Aik Saath violence and harassment and their families, in a particular setting,
acted as a deterrent to perpetrators and potential offenders.
Following racial tensions between Sikh and Muslim communities in Following this project, the police recorded a large reduction of
the mid-1990s in Slough, the local council set up a project whereby racist incidents in the area. Although these figures are always
a mediator/peacemaker brought the perpetrators together for treated with caution, community intelligence developed by the
mediation or conflict resolution sessions. This led to the setting partnership model pointed to the conclusion that there had been a
up of Aik Saath, a programme that provides conflict resolution tangible reduction in incidents. The project received Demonstration
training for young people through peer education. The project Status from the Home Office, a sign that this was an example of
aims to promote racial harmony and encourage young people to good practice that should be replicated in other settings.
understand each other in a positive way.
Referrals are usually achieved through a variety of agencies 3.11.6 Concluding remarks and recommendations
including schools, youth offending teams and youth clubs. These
involve groups of young people among whom conflict is identified Gene Griessman said: “Diversity is part of the natural order of things
as a problem. Sometimes the requests come from the young people [...] as natural as the trillion shapes and shades of flowers of spring
themselves who have seen the Aik Saath in action through films and or the leaves of autumn. Believe that diversity brings new solutions
fliers. The project is based in the locality and hence young people to an ever-changing environment, and that sameness is not only
who watch the informative films can identify with the locations, with uninteresting but limiting. [Because] to deny diversity is to deny life
the characters in the film as well as with the conflict. [...] with all its richness and manifold opportunities”. He thus affirmed
The outcome of their work can be best appreciated in an anecdotal his citizenship “in a world of diversity, and with it the responsibility to
rather than a purely quantitative way. There are clear signs of [...] [be] tolerant. Live and let live. Understand that those who cause no
changes in attitudes by some young people after just a few weeks harm should not be feared, ridiculed, or harmed [...] even if they are
of working with the organisation. Monitoring comes in the form of different. [But] look for the best in others [and] to rise above prejudice
a questionnaire given to young people, asking what the sessions do and hatred” (Umbreit and Coates 2000).
for them. The project is funded by the Big Lottery Fund, but faces Race hate that leads to violence is a lethal virus which if not treated
serious capacity issues and core funding challenges. can lead to the demise of the community that hosts it. It is fair to

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 be sceptical about the use of innovative approaches to hate crime, as a source of information. However, it is important that when assessing the value of work to challenge
particularly when they take away the very essence of adversarial racist attitudes, agencies recognise the validity of anecdotal evidence and soft outcomes.
criminal justice procedures, including the principles of openness,
proportionality and “just deserts”. This article has provided a Recommendation 5 – Funders
balanced analysis of the pros and cons of the innovative approach Although governmental agendas must set the guidelines for the provision of public resources, funding
of RJ with hate crime offences. Through case studies from around agencies should support creative implementations of this agenda that respond to the needs, expertise
the world we put the application of restorative programmes in context and successful work of grass root organisations. One such innovative approach is found in the RJ
and draw conclusions for further analysis, investigation and research. movement. Funding agencies could take the lead in developing programmes that explicitly support
In particular, the following recommendations are posited: creative and innovative work with potential perpetrators and victims of hate crime. Finally, funding for
work to bring about attitude change should be long-term in order to allow for the change in attitudes
Recommendation 1 – Government to take root. RJ, for instance, does not offer quick-fix solutions. It is a long-term process which can
The various types of intervention (mainstream or other) that play a gradually lead to healing and restoration. This needs to be appreciated and supported. Successful
role in preventing racist violence come from a variety of sources. intervention projects, therefore, should be able to access ongoing funding beyond the short term.
Guidance is needed in order to link their work effectively, adopting
a multi-agency approach. Some models of effective partnership Recommendation 6 – RJ movement
between public, private and voluntary organisations have been RJ practitioners and theoreticians from around the world ask, “why are criminal justice officials not
identified in this article. letting the restorative movement advance?” However there is little acknowledgement that there may
be something wrong with the movement itself. As illustrated in this article, concurrently with the
Recommendation 2 – Researchers increase of the numerous volumes of theoretical debates around RJ, fears have been created that
Hate crime needs to be treated as a special category of crime that they might not be in accordance – or at least at the same speed – with the practical development of
lacks a concrete definition, is caused by a number of psychological, the restorative notion. More importantly, they seem to pay none, or little attention to the alarming
sociological and biological factors, and reaches down to the very warnings principally coming from experienced practitioners in the field, who become increasingly
essence of our humanity as well as the value of our community and concerned about a developing gap between the well-intended normative understandings of RJ and
co-existence. The way it is being recorded needs to be improved its actual implementation. While theoreticians may claim that RJ can provide a new paradigm that
and further research needs to be carried out in relation to potential can replace or complement the traditional criminal justice system, practitioners are striving to keep
perpetrators. For instance, additional research should examine their RJ programmes going despite recorded success. The two fields need to complement and inform
race-related violence between different BAME communities or the each other.
hostility directed towards recently arrived migrants and asylum-
seekers. Further research should also explore the potential Recommendation 7 – Politicians
for devising a typology around potential perpetrators of racist A firm political commitment is needed to direct work and policy more explicitly towards
violence, and examine whether such a typology could be effective prevention and long-term solutions that heal the victim and the community and educate offenders.
in preventing racist violence. Political figures should be held accountable for behaviour that encourages racist attitudes in the
community.
Recommendation 3 – Policymakers
The aforementioned typology of potential perpetrators should not References
be used in a manner that corresponds to the current punitive/
retributive culture of the traditional criminal justice system. Where • Bird, S. (2007) Racist who opened fire on the Tube jailed for 15 years. The Times 24 (February): 31.
it is applicable (i.e. there is consent from all parties etc), potential • Carr-Hill, R. (2006) The Uses and Abuses of Statistics. Criminal Justice Matters 62: 16–17.
perpetrators and the wider community should be engaged through • Cathcart, B. (1999) The case of Stephen Lawrence. London: Viking
RJ programmes to understand the long-lasting, deep impact racist • Coates, R., M. Umbreit and B. Vos (2006) Responding to Hate Crimes through Restorative Justice Dialogue. Contemporary
violence can have on individuals and community groups. Case studies Justice Review, vol. 9, no. 1 (March): 7–21.
presented in this article show that by bringing victims and offenders • Delgado, R. (2000) Goodbye to Hammurabi: Analyzing the Atavistic Appeal of Restorative Justice. Stanford Law Review,
of hate crime together can help them heal, amend and restore. vol. 52, no. 4: 751–775.
• Gavrielides, T. (2008) Restorative justice: the perplexing concept. Conceptual fault lines and power battles within the
Recommendation 4 – Legislator restorative justice movement. Criminology and Criminal Justice Journal, vol. 8, no. 2: 165 –183.
Crime reduction legislation and policy, whether punitive or • Gavrielides, T. (2007) Restorative Justice Theory and Practice: Addressing the Discrepancy. Helsinki: HEUNI
preventative, needs to be assessed against its impact on reducing • Gavrielides, T (2005) Some Meta-theoretical Questions for Restorative Justice. Ratio Juris, vol. 18, no. 1: 84–106.
or preventing racist violence. RJ practices have been dismissed • Gavrielides, T. (2003) Restorative Justice: Are we there yet? Criminal Law Forum, vol. 14, no. 4: 385–419.
by mainstream criminal justice agencies without being tested. • Green, D. G. and J. D. Grieve (2000) Institutional racism and the police: fact or fiction? London: Institute for the Study
Community-based organisations offering RJ services may be used of Civil Society

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• Green, D. P. (1997) Cause of hate: Economics versus demographics. Paper Prof. Dr. Arthur Hartmann
presented at a congressional briefing co-sponsored by the American University of Applied Sciences in Public Administration Bremen (Germany)
Psychological Association and the Society for the Psychological Study of Social Contact +++ [Link]@[Link]
Issues. Washington (DC)
• Hamm, M. (1994) Hate Crime: International Perspectives on Causes and
Control. Cincinnati (OH): Anderson
• Higginbottom, G. M. A. and L. Serrant-Green (2005) Developing Culturally
Sensitive Skills in Health and Social Care with a focus on conducting research

3.12
with African Caribbean Communities in England. The Qualitative Report, vol.
10, no. 4: 662–686.
• International Centre for the Prevention of Crime (ICPC) (2002) Preventing Hate
Crimes: International Strategies and Practice. Montreal (QC): ICPC
• Isal, S. (2005) Preventing Racist Violence. London: Runnymede Trust
• Kelly, R. (1998) Hate Crime: The Global Politics of Polarization. Carbondale
(IL): Southern Illinois University Press The Practice of
• Kushnick, L. (1998) Race, Class, and Struggle. London: River Oram Press
• Macpherson, W. Sir (1999) The Stephen Lawrence Inquiry. London: Home Office “Täter-Opfer-Ausgleich”
• Marlow, A. and B. Loveday (2000) After MacPherson: policing after the Stephen
Lawrence inquiry. Lyme Regis: Russell House
• Ohri, S. (1988) The politics of racism, statistics and equal opportunity: towards
in Germany
a black perspective. In: B. Ashok, C. Roy and S. Ohri (eds.) Britain’s Black
Population. UK: Gower: chapters 2.123–135.
• Sibbit, R. (1997) The Perpetrators of racial Harassment and Violence. Research 3.12.1 The legal basis of restorative justice schemes in Germany
Study 176. London: Home Office
• Smith, D. (1995) Criminology for Social Work. Basingstoke: Macmillan The relevance of Section 46a of the German Criminal Code (Strafgesetzbuch, hereinafter StGB) in the
• Southwark Mediation Centre (2006) The Hate Crime Project. London: Southwark practice of restorative justice in Germany is of an indirect nature. Section 46a of the StGB gives the
• Tiemessen, A. E. (2004) After Arusha: Gacaca Justice in Post-Genocide Rwanda. legal definition of “Täter-Opfer-Ausgleich” (hereinafter TOA), thereby acknowledging TOA as a legal
Africa Studies Quarterly, vol. 8, no. 1: 57–76. institution. It obliges the courts to take into consideration whether any form of TOA has taken place
• Umbreit, M. and R. Ritter (2006) Arab Offenders Meet Jewish Victim: Restorative in a case. Otherwise the court risks the cassation of its judgement. But usually the referral of cases
Family Dialogue in Israel. Conflict Resolution Quarterly, vol. 24, no. 1: 99–109. to restorative justice schemes does not take place on the legal basis described in Section 46a of the
• Umbreit, M. (2001) The Handbook of Victim Offender Mediation. San Francisco StGB (see also article 3.3 in this publication). The majority of the cases are referred to restorative
(CA): Jossey-Bass justice schemes by the prosecutor before accusation on the basis of sections 153a of the German
• Umbreit, M. and R. B. Coates (2000) Multicultural Implications of Restorative Code of Criminal Procedure (Strafprozeßordnung, hereinafter StPO) and 45 of the Juvenile Criminal
Justice: Potential pitfalls and dangers. Washington (DC): US Department of Court Act (Jugendgerichtsgesetz, hereinafter JGG) as a means of diversion.
Justice, Office for Victims of Crime
• Victim Support (2006) Crime and Prejudice: the support needs of victims of 3.12.2 The practice
hate crime. London: Victim Support
Restorative justice has been applied in Germany since 1986, from which year several pilot projects
offering victim offender mediation were carried out. These model projects introduced the term TOA
as a translation of the expression victim offender mediation. Until now, the term TOA has mostly been
used for victim offender mediation. In contrary to the later definition of TOA in Section 46a of the
StGB, the emphasis in this kind of TOA lies on the involvement of victims and offenders in a mediative
procedure facilitated by a mediator.
The advantage of the outcome-oriented legal definition of TOA is the wide space that Section 46a
of the StGB provides to develop and introduce new forms of restorative justice practices and to take
these efforts into consideration in the criminal procedure. The problem is that the term TOA has lost
its former, clear meaning. This problem became very evident in a case of rape. The offender denied
his responsibility until the evidence against him became overwhelming. In this situation he offered
during a court session an apology and financial compensation for the pain and suffering that he had
caused. This was accepted by the court as a TOA. Following an appeal by the prosecutor, the Supreme

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 Court refused to accept that a TOA had taken place, because for that set out, historically, in the Constitution. Section 30 of the German
to have been the case, the offender should have made clear that Constitution provides that organizing VOM for adult offenders is
he/she accepts responsibility for the crime and should have offered in the hands of the 16 federal states of Germany. Section 28 II of
– in an honest and serious way – to provide full compensation for the Constitution states that organizing social welfare services for
all material and immaterial harms caused. Therefore, in severe children and juveniles – including the support of juveniles in court
cases like rape pleading guilty of the crime is necessary. This goes proceedings – is a task of the local communities. Therefore the
beyond the wording of Section 46a of the StGB and its use in cases of communities are entitled to organize and fund VOM according to
less severe crimes. In addition, a communicative process between their own views and priorities.
victim and offender is essential. As a result of this process, the This article focuses on the legal framework of restorative justice
victim must be able to accept the restitution and apology offered in Germany. A detailed insight in the practice of VOM in Germany
by the offender voluntarily and inwardly (Supreme Court/BGH on can be found in the above mentioned literature (For further reading,
19th December 2002 – 1 StR 405/02 – published in NJW 2003, 1468). see the bibliography of Kerner at [Link]
The Supreme Court wanted to ensure that TOA is not used in an volltexte/2003/861/.)
instrumental and tactical manner. The judgement of the Supreme Regarding future development it should not be missed to mention
Court is understandable but it is not easy for the courts to verify that due to a European Directive (2008/52/EC), which states
whether a communicative process was honest and serious and the standards for mediation in international civil cases that have to be
victim was able to accept the offered restitution inwardly. This is transferred into national law until 2011, the German legislator has
another weak point of the outcome-oriented approach of Section very recently started to prepare a general mediation law. This law
46a of the StGB. may include standards for mediative procedures also in criminal
The mentioned case and other similar ones also casted a shadow cases as well as standards for the necessary training of mediators
on TOA. Even specialists in the criminal justice system sometimes (see Schmidt 2010 for details).
have difficulties in separating this kind of TOA applied in court
proceedings from TOA in form of victim offender mediation. 3.12.3 Conlusions
As mentioned before, the law also does not secure minimum
standards for victim offender mediation. But already in 1989 As a closing word, it can be mentioned that the practical use of
a first working group of practitioners developed standards for restorative justice in German consists largely of TOA in the form of
good practice in the field of TOA (used here in the sense of victim victim offender mediation. Very recently, conferencing has become
offender mediation). These standards have been, since then, more popular, the use of circles however is not yet established.
further improved (see [Link]). Since 1991, the Mediators are mainly social workers with a university degree who
Office for VOM Services in Cologne has also offered basic training have also completed the training courses of the Office for VOM
courses for mediation in criminal cases. In 1993, the “Bundesweite Services. Some institutions also work with trained volunteers.
TOA-Statistik” (Federal Statistics of VOM) was established with Nearly 80% of VOM cases are formally referred by the prosecutors,
the aim to evaluate the development of VOM in Germany (for but in some localities up to 25% of cases come directly from victims
results see Kerner, Hartmann and Eikens 2008; Hartmann and and offenders, who ask for VOM. In some places the police also have
Kerner 2004; see for a detailed description Hartmann 2008). an important influence on the referral procedure, but they cannot
The Office for VOM Services also offers – in cooperation with the formally refer a case.
“Bundesarbeitsgemeinschaft der TOA-Einrichtungen“ (Consortium About half of VOM cases deal with violence and in some
of VOM Schemes) – a certificate of good quality for VOM-schemes communities one can find high rates of domestic violence among
on the basis of an auditing procedure. VOM cases. In some problematic urban areas there is also easy-
But it has to be emphasized that the mentioned safeguards to-access social mediation provided outside of the court system.
for high quality are not obligatory as they were developed and Restorative approaches other than mediation are also used in some
established by private initiatives and organisations. Only a minority communities, especially in Bremen to deal with cases of stalking
of the VOM-schemes in Germany comply fully with the standards for (see [Link] Pilot projects offer mediation and
good practice and have undergone the auditing procedure in order conferencing for prison inmates and their victims.
to achieve the certificate of good quality. Only a minority of VOM- According to earlier research about 250 institutions offer VOM in
schemes are included in the Federal Statistics of VOM. Therefore, Germany dealing with about 20.000 to 30.000 VOM cases each year.
TOA in the form of victim offender mediation is also not a consistent Forthcoming research is however likely to demonstrate that these
service throughout Germany. Its use and impact varies from federal numbers underestimate the use of VOM and restorative justice in
state to federal state and sometimes from locality to locality. This Germany.
is to some extent a consequence of the federalism in Germany

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References Peter Mražek
Ministry of Justice (Slovakia)
• Dölling, D., G. Duttge and D. Rössner (eds.) (2008) Handkommentar zum Contact +++ [Link]@[Link]
Gesamten Strafrecht (HK-GS). Baden-Baden: Nomos Verlag
• Hartmann, A. and H.-J. Kerner (2004) Victim-Offender-Mediation in Germany

3.13
– An Overview. ERCES Online Quarterly Review, vol. 1, no. 2 ([Link]
com/journal/[Link])
• Hartmann, A. (2008) The Federal Statistics of Victim-Offender-Mediation in
Germany. British Journal of Community Justice, vol. 6, no. 2: 55–68.
• Johnstone, G. and D. W. Van Ness (2007) Handbook of Restorative Justice.
Portland (OR): Willan Publishing
• Kerner H.-J., A. Hartmann and A. Eikens (2008) Täter-Opfer-Ausgleich in
Deutschland. Bericht für das Bundesministerium der Justiz. Berlin: BMJ Hrsg Victim Offender
(online publication at: [Link]
• Schmidt, S. I. (2010) Mediationsverfahren und Täter-Opfer-Ausgleich: Aktuelle Mediation and Mediators
Entwicklung in Deutschland. TOA-Infodienst, no. 39: 37.
• UN Office on Drugs and Crime (2006) Handbook on Restorative Justice in the Republic
programmes. UN Criminal Justic Series. New York: E-Book
• Walgrave, L. (2008) Restorative justice, self-interest and responsible
citizenship. Cullompton (UK): Willan Publishing
of Slovakia
Documents

• Directive 2008/52/EC of the European Parliament and of the Council (21 May 3.13.1 Introduction
2008) on certain aspects of mediation in civil and commercial matters
The criminal policy in Slovakia, just like in other countries, places
stress on the reformative, educational function of punishment.
Furthermore, emphasis is placed on the humanisation of the
prison system and on the reduction of the use of imprisonment as
a punishment. The institutions of probation and mediation occupy
a unique position both in the field of criminal law and of crime
prevention in Slovakia. We believe that imprisonment should only
be ordered in the cases where no other type of punishment can be
imposed due to the gravity of the criminal offence or because the
person of the offender renders it necessary. This approach may
bring with it not only unambiguous economic advantages, but also
an individual approach may be applied to the offender and so the
chances of real change are enhanced. Alternative punishments are
applied on the basis of the concept of restorative justice.
Right from the start, it must be put down that restorative justice
practices are relatively new in Slovakia and have no prior history.
They have gradually become functional.
Basically, there have been three important stages in the
introduction of probation and mediation in Slovakia.
The legal regulation of probation and mediation was preceded by a
one-year-long pilot project set up by the Slovak Ministry of Justice,
and launched on 1 April 2002. This project aimed at pilot testing
probation and mediation in selected district courts. The courts
were selected according to the content and range of their agenda,
the nature of which had to be suitable for probation and mediation.

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 Criminal cases which were unambiguous from an evidential point Nowadays the staff of the probation and mediation service includes
of view, which concerned less serious criminal offences and where almost 100 probation officers and mediators and three assistants
the method employed was expected to have a positive effect on the (the posts were established in three courts, on the territories where
accused person were proposed for inclusion in the pilot project. a larger number of marginalised Roma communities live).
As the pilot project was performed without changes to the However, the probation and mediation procedure itself was
Criminal Code or the Code of Criminal Procedure, it was necessary introduced following the recodifications in the Criminal Code and
to find some operational space for the activity of the probation in the Code of Criminal Procedure in Slovakia subsequent to 2006.
officers and mediators. At the time, the Slovak criminal law in force One of the pressing reasons for the recodifications was the need to
did not contain probation or mediation, or their use as punishments modernise and to adapt to the new conditions and trends in society.
(so-called supervisory punishments). However, probation could be The concept of restorative justice became the underlying philosophy.
implemented within the pilot project because, in compliance with The new legal regulations result from a principle concerning the
the Criminal Code in effect at that time, the judge was in a position auxiliary role of criminal repression, namely that coercion must only
to impose adequate restrictions and duties on the convicted person, be applied by the state in connection to criminal measures when
the execution and observance of which could be monitored by the there is no other solution to achieve accord between the behaviour
probation officer and mediator. Furthermore, the probation officer of the people and the law. The currently valid criminal law promotes
and mediator were in a position to support the reintegration of the application of probation and mediation as new methods which
the convicted person in association with his/her family and the belong to the trend of restorative justice.
community he/she lived in, to inspect relevant documents, to The offender is at the centre of the activities of the probation
monitor whether the measures imposed were met by the convicted officers and mediators, especially in the case of probation.
person, to find out about the family, social and work situation of The term probation can basically be defined as institutionalised
the offender, to arrange meetings between the offender and the supervision of the behaviour of the offender who has committed a
victim, to document the agreement concluded by the offender and criminal offence. Besides supervision, probation also contains advice
the victim on how to resolve the issue, and finally, to cooperate and consultation which are conditions for the successful reintegration
with governmental and non-governmental bodies in resolving the of offenders. So the probation officer supervises the accused person,
particular social problems relating to the offender. The probation the defendant or the convicted person, checks whether the punishment
officer and mediator were also in a position to require references (which is not linked to imprisonment) is carried out within the duty
from the offender’s employer and school. or restriction imposed. The probation officer also supervises the
behaviour of the person on parole for a probationary period, helps
3.13.2 Mediation in Slovakia the convicted person to reintegrate into daily life and to comply with
the conditions imposed on him/her through the decision made by the
The results and experience related to the introduction of the prosecutor or by the court in the criminal proceedings.
probation and mediation service in its first stage in 2002 and 2003 It should be added that, besides probation officers and mediators,
were incorporated in a new piece of legislation – the Probation and there are also separate networks of parole officers for children and
Mediation Act, which determined the conditions for the application and for adults in Slovakia. They are also civil servants – they are social
execution of alternative punishments. The probation and mediation workers, they work in employment agencies, in the bodies for the
services take part in law enforcement, in particular by creating the social and legal protection of children and social guardianship. Their
conditions for diversion from criminal proceedings, guaranteeing the work is focused more on the social dimension and resolution of the
effect of alternative punishments and finding an effective response problems of the convicted persons. They apply social worker methods
to the criminal offences committed. The acceptance of the act and, of course, other methods too, just as the probation officers and
resulted in the actual establishment of the institution of probation mediators do.
and mediation on 1 January 2004; all the courts introduced the post As far as mediation is concerned, we aim at an effective
of probation officer and mediator who, at the time – i.e. until the act settlement or at least at a reduction of the conflict associated with
came into effect – were active in particular in the field of mediation. the criminal offence, at the elimination or at least the remedying
The Probation and Mediation Act regulated the activity of the of its consequences, i.e. at the resolution of the dispute between
probation officer and mediator, his/her rights and obligations and the injured party and the convicted person out of court, and we try
the professional qualifications required for supervising probation to help to achieve moral satisfaction and financial compensation
and carrying out mediation. for the persons affected by the criminal offence. We also support
The Slovak probation officer and mediator is a civil servant who the parties in concluding the mediation process with an agreement.
performs public service for the court. These posts are established The facts agreed on by the parties become a part of the written
in 54 district courts in Slovakia. agreement, the implementation of which is supervised by the

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 probation officer and the mediator within the supervision (control) of Maritha Jacobsson and Lottie Wahlin
the convicted person during the period of probation. We understand Maritha Jacobsson: Umea University (Sweden)
every activity which is performed by the probation officer and the Contact +++ [Link]@[Link]
mediator – regardless of whether an agreement is concluded or

3.14
not – and which is aimed at the resolution of the criminal conflict
in the mediation to be positive, because such an activity may have
an effective impact on the criminal proceedings.
The aim of the probation officers’ and mediators’ activity is for
reconciliation, as provided by law, to be achieved, and for the court
or the prosecutor to settle the criminal case through diversion.
The probation officer and mediator carry out the activities as The development of
provided by the law in accordance with the instructions of the judge
or the prosecutor. Mediation may be initiated on the suggestion of victim offender
either of the parties of the criminal proceedings, if this is permitted
by law or by the verdict reached in the criminal proceedings.
In order to carry out mediation in a particular case, the probation
mediation in Sweden
officer and mediator must obtain the consent of the presiding judge
and, in pre-trial proceedings, the consent of the prosecutor. If the 3.14.1 Introduction
court orders probation supervision or custodial supervision, the
supervision is carried out in accordance with the decision of the court. Since the year 2008, it has been compulsory for all municipalities in
In the probation and mediation procedure, the probation officer Sweden to offer victim offender mediation (VOM) to young offenders
and mediator collaborate with various people and have the authority below the age of 21. Work in the area of victim offender mediation
to apply to governmental bodies, to the local government of villages was started in the late 1990s and has been expanding ever since.
and other legal entities and natural persons to obtain necessary data. In Sweden, VOM is regulated by the Act 445 of 2002 on Mediation
As described above, it is obvious that the introduction of probation (Medlingslagen, hereinafter Mediation Act). The aim of the act is to
and mediation in Slovakia and the results achieved therewith both on increase the offender’s level of insight into the consequences of the
a qualitative and on a quantitative level have been a very significant offence. At the same time, the victim is provided with the opportunity
development in recent times. to deal with his/her experiences. The philosophy underlying the
The implementation of relevant legislation is monitored and Swedish criminal system is retributive justice; and restorative
assessed on an ongoing basis. The statistical data are monitored justice can be described as a complementary method. Retributive
and assessed annually and right at the present a new way of justice is rooted in the idea that the offender should be prosecuted
monitoring probation and mediation is being introduced, enabling and punished by the state. Restorative justice provides a very
continuous assessment of performance. different framework for understanding and responding to crime and
Unfortunately, final evaluation can not yet be carried out in respect victimization. Instead of an offender-driven focus, restorative justice
of the developments or the actual results of probation and mediation, identifies three parties: individual victims, victimized communities,
due to the relatively brief period of time in which they have been and offenders. Its main purpose is to bring together the parties
implemented. However, the importance of monitoring development involved who can meet and deal with the effects of the offence and
and assessing effectiveness on a continuous basis is appreciated. its future consequences together.

3.13.3 Future perspectives 3.14.2 The development of victim offender mediation

In the upcoming period, problems that have arisen and measures for Victim offender mediation in Sweden evolved during the second
their resolution are to be identified. Probation and mediation activities half of the 1980s, independently from political decision making.
will be monitored on a continuous basis, with special consideration In 1998, the government requested that the National Council for
to probation and mediation tasks in relation to accused teenagers, Crime Prevention (hereinafter Brå) initiate, monitor, co-ordinate
teenage defendants or convicted teenagers and to the child victims and evaluate experimental mediation projects. During that year,
of criminal offences. The Ministry of Justice also wishes to improve thirty-two projects in different parts of the country were selected.
the professional qualifications of probation officers and mediators, In the same year, the Commission on Mediation was required
to offer adequate educational and social programmes for convicted to study and analyze the role of mediation in the justice system
persons and to enhance cooperation with NGOs. for young offenders. The Commission was required to propose

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 legislation based on its findings. In the year 2000 (see SOU 2000), alleged offender, the victim, police, prosecutor, or social authority.
the Commission on Mediation gave some recommendations Today mediation in Sweden is governed by the National Board of
for legislation based on the evaluation. In 2002, victim offender Health and Welfare. The activities vary both organizationally and
mediation in Sweden was regulated by the Mediation Act which in terms of their size. In 2007 (according to Brå), 159 mediation
came into effect in July 2002. activities took place and there were 252 municipalities that could
Subsequently, the government commissioned Brå to develop offer mediation, at some level. The mediators are both social
mediation activities (2003–2007). Their assignment was to distribute workers and lay persons.
financial support to municipalities in order to initiate new or to
develop existing mediation projects and to provide training for 3.14.4 Types of crimes
mediators. In this process they educated about 800 mediators.
The other aim of the project was to develop mediation methods and According to the Mediation Act it is possible to use mediation
guarantee the consistent quality of mediation projects. in relation to the majority of offences (see the text highlighted),
According to reports from the municipalities there were mediation although sexual crimes and serious acts of family violence are
activities in 154 of Sweden’s 290 municipalities, covering over two- deemed to be less suitable.
thirds of the national population at the end of 2007.

3.14.3 The law regulating mediation 3.14.5 Mediation in the future

The Mediation Act is a framework act which means that the law One of the problems in Sweden today is that many municipalities The most common offences in
defines the general criteria for victim offender mediation, but it does do not have a sufficiently large population to be able to conduct a victim offender mediation (between
not regulate mediation in detail. One aim of the law is to support mediation project on their own. In order to produce a high-quality 2003–2007) are shoplifting (30%),
a unified development of mediation in the country. According to and effective mediation organization, it would be necessary for small assault (18%), vandalism and
the law, mediation should be organized by the state or by the municipalities to collaborate with each other. It is also important graffiti (16%), different kinds of
municipalities. The aims of mediation are that to find organizational routines and sustainable structures. In theft and burglary (12%), and
one ongoing study of victim offender mediation (financed by the threats and harassment (9%). The
• the offender should get increased insight concerning the
consequences of the offence, and to therewith reduce the
Crime Victim Compensation and Support Authority 2008–2010),
the authors have recorded and are now analysing pre-mediations
offender’s age varies between 6–54
years, especially between 14 and
likelihood of re-offending, and and mediations. The focus of this study is on how the victim, in the 17 years old. Most of the offenders
• the victim should be given the possibility to deal with feelings of
fear, anger etc. caused by the offence.
dialogue with the offender, deals with his/her experiences and how
mediators act in relation to the parties. What does it mean to be
are males. There are individuals as
victims in barely half of the cases.
impartial? The results of this study answer some questions and The other half constitutes various
The offenders should be over the age of 12 and have accepted raise others. Victim offender mediation in Sweden is, as in many institutions such as shops, schools,
responsibility for the main elements of their offence. Mediation other countries, here to stay. But the main questions are: where do public buildings etc. The age of the
should be optional for both parties. The mediator should be impartial the weaknesses lie and how can those be eliminated? victims ranges between 4 and 91
and the meeting should conclude with some form of agreement years (Brå 2007).
between the parties. References
Other laws that regulate mediation are the Social Service Act
and the Young Offenders’ Act. According to the Social Service Act, • Swedish Government Official Report (Statens offentliga utredninga, SOU) no.
it is compulsory for all municipalities in Sweden to offer victim 2000:105 on Medling vid ungdomsbrott. Stockholm: Ministey of Justice
offender mediation to young offenders below the age of 21 (Social
Service Act, Chapter 5 Sec. 1c). Victim offender mediation is also
mentioned in two sections of the Young Offenders’ Act (lagen om
unga lagöverträdare, Act 167 of 1964, secs. 6 and 17). One Section
allows, but does not oblige, prosecutors to take into account whether
mediation has taken place when prosecuting a young offender.
According to another Section the police should report to the social
services in relation to offenders below the age of 18. The report
should include information on whether the offender has been offered
the opportunity to participate in mediation, and how the offender
responded to this information. Mediation can be initiated by the

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4. Dr. Erzsébet Hatvani
Office of Justice (Hungary)
Contact +++ hatvanie@[Link]

Restorative practices implemented

during the enforcement of sentences
4.1
Symbolic
Restitution:
Community Sanctions
in the Practice
of the Hungarian
Probation Service
4.1.1 Introduction

Due to lifestyle changes, new patterns of crime, a deterioration

in the feeling of personal security and an increased fear of crime
following the change of political regime, it has become necessary
to reconsider the criminal law responses to crime in Hungary.
The American and the Western European developments were
available as models for transforming crime control, especially
double-track criminal policy and the concept of restorative justice.
Legal developments in Hungary rearranged the sanction system
and introduced a new institutional background for the effective
enforcement of new, alternative sanctions.
A broader concept of alternatives to prison includes not only the
criminal law sanctions not resulting in the offender’s imprisonment,
but also the various forms of diversion, compensation and reparation.
Reparative justice is closely connected to the new forms of alternatives
to prison. In spite of this connection, there is one key difference: while
in traditional criminal justice the offender is the “passive subject”
of retribution and is required to suffer the punishment, under the
community concept the offender is a ”responsible subject” and the
community thus expects the offender to take responsibility for the crime.
As a result, the sanction system was expanded and modified,
and new, alternative, diversionary and restorative methods were
introduced in Hungary. The first examples came as early as during

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 the 1990s. Community service and postponement of accusation The key items of the comprehensive criminal law reform
(the latter as a diversionary measure first applicable to juvenile implemented from 2003 were the extension of community sanctions,
offenders and then extended to adults) were the first such measures the concept of restorative justice and the strong representation of
to be incorporated into the Hungarian legal system. the victim’s and the aggrieved community’s interests.
In Hungarian mediation practice, there are efforts made to A number of international documents have provided guidance for
accomplish more agreements on immaterial (symbolic) reparation the types, content and enforcement of community sanctions, such
in addition to the efforts to mitigate the harmful consequences as Recommendation R(92)16 and Recommendation R(2000)22 of
of a crime through the payment of material compensation. the Council of Europe (see the texts highlighted).
This article will not analyse the symbolic forms of reparation.
Instead, it will focus on other measures in the Hungarian criminal According to Recommendation R(92)16 of the Council of Europe on
system that help implement the concept of restorative justice. European rules on community sanctions and measures, the definition
of a community sanction includes the following elements:
4.1.2 Statutory changes
• a community sanction reserves the offender in the community;
For legal changes to be implemented effectively and in order to make
progress, there was a demand on the part of the legal profession at the
• involves some restriction of the offender’s liberty (through the
imposition of conditions and obligations);
beginning of the 21st century to create an institutional background for
the implementation of legislation. Probation services are professional
• is implemented by bodies designated by law for that purpose (the
probation service);
organisations responsible for the enforcement of alternative sanctions
and for preparing the inmates to be released for reintegration.
• supervision combined with various levels of restriction of liberty
provides assistance for reintegration.
Probation services have been in existence for decades in Western
Europe and they are in constant development in Central and Eastern The key characteristics of community sanctions are that Recommendation R(2000)22 of
Europe. In Hungary, the Probation Service was set up as a result of the Council of Europe promotes
the comprehensive criminal law reform carried out in accordance
with the restorative and reparative principles and as one of the
• the main goal of the sanction is not to deprive the offender of his/
her liberty;
the implementation of the rules
on community sanctions and
organisations responsible for the enforcement of community sanctions
and restorative justice measures, in line with the new, redefined roles
• the sanction does not separate the offender from the community,
which means that the person will remain a responsible member
measures and includes guiding
principles for achieving wider
of probation service activities. of the community; and more effective application
Probation services have been in existence in Hungary for almost
30 years, but until 2003 they operated without uniform professional
• a key element of a community sanction is that it does not require
the offender to suffer some form of deprivation of liberty; instead, it
of community sanctions and
measures. The Recommendation
guidance and control. In 2003, the services were finally given an requires the offender to fulfil obligations, to have a positive attitude lists the available community
appropriate, modern and consistent professional and organisational and to be active (behaviour rules, mediation, active repentance sanctions and the cases in which
background. The Probation Service is under the control of the minister and reparation); they can be applied in order to
of justice. The Probation Service’s objective is to be present in and
influence the criminal procedure within the traditional systems of
• instead of a one-sided (passive) relationship it necessitates a two-
way (active) relationship between the offender and the organisation
increase the number of cases in
which a wide range of community
crime control, criminal justice and prisons. implementing the sanction; sanctions and measures are
In 2003, the basic tasks of the Probation Service were as follows: • it involves some form a restriction of personal liberty (control) and
at the same time provides assistance;
implemented. These examples
include unpaid work (community
• assisting the prosecutors and the judges in decision-making • it relies on the integrative power of a community; service work) and treatment orders
through expert professional services; • the enforcement of the sanction requires continuous and personal for drug and alcohol abuse. It
• carrying out social inquiry report and issuing pre-sentence report; contact between the offender and the implementing official appears that aspects of restoration
• enforcing diversion measures and punishments carried out (mediator or probation officer); and reparation are becoming more
within the community (postponement of accusation, probation,
deferred sentence, release on parole, temporary release from
• the organisation implementing the sanction must ensure that the
local community is involved;
prominent as the Recommendation
determines the introduction of the
a reformatory institution under the supervision of a probation
officer, and community service work);
• a failure to meet the terms of the sanction has legal consequences. restorative element to community
sanctions as a possible way of
• providing prison support services in penal and reformatory
institutions in order to prepare inmates for release and after-
The Hungarian reform of probation services introduced restorative
elements to the concept of state victim support and to the state
progress in criminal policy. Also,
the Recommendation specifies
care services on a voluntary basis. organisation of victim assistance. The restorative justice approach victim offender mediation as a
gained a central role in the theoretical background to the National possible community sanction.

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 Symbolic reparation can be combined with community sanctions in many ways. The most typical
Strategy for Community Crime Prevention (2003). In this document, form is the sentence of community service work, which is a sanction of reparative nature. In Hungary,
restorative justice was considered a principle that should be used in it is the obligation of the probation officers to organise and monitor community service work.
horizontal community crime prevention and in primary, secondary When the offender carries out community service work, he/she typically does some useful work
and tertiary crime prevention efforts. that the given state or local government organ would otherwise have no funds to pay for. During the
The Hungarian Probation Service applies the principle of enforcement of this punishment, special opportunities of reintegration arise, given that many of the
restorative justice as a horizontal principle. This is reflected in the offenders have a low willingness to work and are not used to hard labour. Through community service
organisation’s mission statement (see the text highlighted). work, these people can be brought back to the job market in a non-conventional manner. They have a
chance to gain employment at the institution where they worked during the period of their community
The objective of the Probation Service is to reduce the risk of re-offending. service. The Probation Service has to carry out their activities in such a way that the local community
The probation officer promotes the full implementation of the imposed should enjoy the result of the community service work. The most visible forms of community service
criminal law sanctions and the protection of the community through work are when the offenders develop or maintain the natural or the built environment in the area. Such
supervising the offender consistently to the necessary extent. The efforts are visible and bring positive results to the life of the community and therefore the community
assistance provided by the officer also increases the offender’s chance will be more likely to feel appeased and its open attitude may be strengthened. Community service
for reintegration. The Probation Service operates on the basis of the is not the direct reparation of the damage caused by individual crimes. Instead, it is about symbolic
principle of restorative justice. Its objective is to make the offenders restitution to the community through unpaid work. If community service is organised in a way that
realise the consequences of their crimes and to reduce the damage makes the enforcement and the results visible for the community, the punishment is much more
caused by the crime by mediating between the aggrieved community capable of decreasing the general fear caused by the crime within the community and it develops
and the offender. trust that the reintegration objective of the sanction will be reached.
While restorative justice expects the perpetrator to take personal responsibility, it also requires
The philosophy of restorative justice is directly applied during the work the community to show a receptive attitude. The phenomenon when the restorative method makes
of the Probation Service through various restorative techniques and the perpetrator realise the consequences of his/her actions is called reintegrating or receptive
procedures. Penal mediation was introduced in 2007 in Hungary and the shame by restorative justice literature. The offender takes responsibility for the crime due to the
Probation Service was appointed to carry out the mediation procedures shame resulting from the realisation of the consequences. The offender will not be left alone with
and a system of training and supervision was also established. Penal the shame as the offender and the community will help the offender digest it by offering him/her the
mediation is available in the phases before the prosecutor and the court. opportunity of restitution, as well as reintegration/reacceptance as a result of the restitution. From
It can be applied for both adult and juvenile offenders if the crime is not the aspect of social reintegration, the active contribution and the receptive attitude of the community
punishable by more than five years of imprisonment. is also significant (in addition to the needs of the offender). This factor must be taken into account
when sanctions are enforced.
As already mentioned, active responsibility is a key element of sanctions enforced in a community.
The Probation Service provided The Code on Criminal Procedure regulates mediation as a method Active responsibility is more than just compliance with the rules accepted by the offender. It must
mediation services in 2.451 cases of diversion. It is a key feature of the mediation procedure that involve active repentance and the offender must keep the individualized behaviour rules.
in 2007 and in 2.976 cases in 2008. the person causing the damage must take responsibility for the Symbolic restitution may also be made as part of the activities required under the behaviour rules
New data that were not yet avail- crime and must offer some form of reparation for the aggrieved specified by the Probation Service. Alternative sanctions are much more effective and the chance for
able at the time of the conference persons and communities. Reparations can be made to the victim reintegration is significantly higher if the sanctions are combined with individualized behaviour rules.
(April 2009): the service provided by providing material or immaterial compensation. The main types of behaviour rules are the following.
mediation services in 3.984 cases The Probation Service is experimenting with the use of other
in 2009. restorative techniques and procedures in the case management work 1. The offender may be ordered to discontinue a form of conduct or
of probation officers in order to complement mediation, which is a activities related to the crime (such as visiting clubs or similar venues)
direct procedural form of restorative justice. One of these experimental or an obligation similar to a restraining order may be imposed on the
projects is family group conferencing carried out during the after-care offender (typically for offenders of domestic violence).
phase. The use of family group conferencing may help the inmate to
prepare for release, it may mobilise community and family resources 2. The offenders may be ordered to participate in treatment, trainings
and thus assist the work of probation officers providing after-care or counselling related to character or behaviour problems,
services (see article 4.8 in this publication). addictions etc., for instance they may be required to undergo medical
In addition to incorporating restorative techniques in the “toolkit” treatment, or to attend aggression management training, social skills
of probation officers, it is also the aim of the service to encourage improvement training, labour market training and job counselling.
the application of forms of symbolic restitution. Naturally, symbolic
restitution may be used as a result of some restorative procedure, 3. Obligations to make up for missing education; for instance the juvenile
but it may also be an element of a community punishment even if no offenders can especially be ordered to continue or complete their
restorative technique is applied. studies or to attend learning assistance programmes.

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 The aim of the project managed by “Jóvá-Tett-Hely”, a community In 2007, mediation was used for 279
4. Behaviour rules related to restitution; if such rules are prescribed, the employment organisation run by the Probation Service of the Budapest youth offenders out of the total of
offender may be required to pay compensation or provide symbolic Office of Justice, was the establishment of a similar system. Our goal 2.224 offenders participating in
reparation for the damage caused by the crime. was to set up a network of organisations capable of providing symbolic mediation procedures. In the first
restitution opportunities to youth offenders. The original plan was to half of 2008, mediation procedures
Reparation is specified as a behaviour rules in the Criminal Procedure Code in relation to the make use of the list of symbolic restitution opportunities already during were started in 277 juvenile
postponement of accusation. Under this rule, the prosecutor may require the suspect to the project, in criminal mediation. However, this plan fell through, offenders’ cases while adult
mainly because mediation in Hungary is used less frequently for offenders participated in mediation
• compensate the victim for the damage caused in full or in part; youth offenders than for adults (see the text highlighted) in spite of procedures in 1.990 cases. New
• make reparations to the victim in some other form; the fact that in most countries restorative justice methods are applied data that were not available at the
• make a payment for a specific cause or carry out work for the community (reparations made to the
public).
particularly in the case of juveniles. time of the conference (April 2009):
in the full year of 2008, a total of
3.669 mediation procedures were
Although the Criminal Code57 does not specify reparation in express terms, it does make a reference As a result, symbolic restitution activities under the project were conducted but only 425 of them
to the possibility of reparation as it declares that the court and the prosecutor may specify behaviour carried out instead as part of the probation service’s behaviour rules involved a youth offender. In 2009,
rules, with special regard to the nature of the crime, the damage caused and the possibilities of the within the given project period. After the project was over, progress there were 3.984 mediation cases
offender’s reintegration. was made in introducing its results in the mediation procedure. in total but mediation was only
It is a key precondition of implementing behaviour rules and related symbolic restitution programmes During the project, we interpreted symbolic restitution as follows: initiated in 438 juvenile cases.
to ensure that the courts and the prosecutors prepare sufficiently. The fact that the tasks of the Probation
Service were redefined in 2003 meant significant progress regarding the introduction of individualized
behaviour rules. For instance, in a criminal procedure against a juvenile, the probation officer must
• the sanction is combined with symbolic (non-material)
compensation;
prepare a social inquiry report early in the procedure (during the investigation phase). In the prosecution
and sentencing phase, the court and the prosecutor (or, before release on parole, the court responsible
• symbolic restitution is not necessarily a result of a restorative
procedure; At the start of the project, 16
for the enforcement of sentences) asks the probation officer to prepare a pre-sentence report evaluating
the individualized conduct-related aspects of the criminal behaviour, the attitude of the offender to the
• symbolic restitution is not necessarily made to the benefit of the
victim (there is no specific victim or there is no criminal mediation);
juvenile (between 14 and 18 years
of age) and young adult (between
action, the harmfulness of the offender on the basis of the crime committed and the risks related to
the personality and the environment of the offender that may lead to re-offending. Through the report,
• the decision is not made with the involvement of the affected
parties, but the victim may still participate in the decision-making
18 and 24 years of age) offenders
participated. Two of them left before
the probation officer informs the court or the prosecutor of any job opportunities available on the basis process (if the victim chooses this option during mediation). completion. Three participants
of the offender’s skills, of possible treatment in health and social institutions, and the officer makes a
recommendation for imposing special individualized behaviour rules on the offender (such as participation
• while reparation is made to an individual, symbolic restitution is
made to an entire community;
(boyfriends and girlfriends of
some offenders) participated in
in various treatment, prevention or restitution programmes). The officer must include in the report whether • the offender must voluntarily agree to make reparation; the programme as volunteers.
the accused is willing and able to comply with the behaviour rules and to carry out the agreed obligations.
The preparation of the report provides an opportunity for the probation officer and the offender to establish
• the form of reparation has little direct connection with the crime. The young offenders were under
probation service supervision
a bond early on in the procedure. As a result, the information is available basically in the form of an expert’s In the programme, we contacted potential recipient organisations for the following crimes: public
opinion at the time of sentencing or when the prosecutor decides whether a diversionary measure may that deal with young people themselves or that work for specific nuisance ( misdemeanour: 2
be applied and its content may be taken into consideration when the sanctions/measures are imposed. community goals and values (for instance, environmental persons, felony: 4 persons),
The behaviour rules may only be enforced effectively if the probation officers are provided with modern protection). Finally, we managed to invite four organisations: a misdemeanour of vandalism (4
equipment and if the institutional background is up to date. Such modern institutions include the so-called foundation for entertaining sick children (Gyermekvilág Ágyszínház persons), aggravated assault (4
community employment programmes, which offer special programmes prescribed as behaviour rules Közhasznú Alapítvány), an environmental foundation (Rügyecskék persons), theft (misdemeanour: 1
for those offenders that are under supervision due to a criminal law sanction or measure. Community Ember- és Környezetvédelmi Közhasznú Alapítvány), a family help person, felony: 1 person). Age: 9
employment programmes may allow the development of special restitution programmes. centre and its institutions (Ferencvárosi Egyesített Családsegítő of them were between 16 and 20,
With the financial support of the National Crime Prevention Board, the Probation Service launched a Központ és Intézményei) and an organisation providing leisure 10 were between 19 and 20. The
project “Community restitution programmes in Budapest” in 2007 for the promotion of behaviour rules with services for children (Csillebérci Szabadidő Kft). youngest participant was 16 and
symbolic restitution content. The project was modelled after an English restorative justice programme. the oldest was 24.
An Oxfordshire-based working group called Youth Offending Team (YOT, see article 4.7 in this publication)
always consults with the victims and offers them a chance to establish contact with the offenders and to The Gyermekvilág Foundation organises games and playful activities
define the form of compensation they accept. Those victims that do not want to meet the juvenile offender for sick children in hospitals around Budapest. A so-called ”animation
or do not accept the form of restitution offered by the offender may choose a programme from a list of training” was organised for the youth offenders before they made visits
restitution programmes available in the area. The working group’s aim is to ensure that restitution is part to hospitals. The training focused on playing games in groups and on
of each juvenile offender’s sentence. learning communication skills. The young offenders learnt to play 57
Act IV of 1978

222 ////////////////////////////////// +++++++++++++++++++ 223

various games, they were told about the psychology of games and they were prepared for the meeting with
the sick children. The family help centre provided tasks for the youth offenders in a youth club (Aluljáró
Ifjúsági Klub) and an elementary school (Dominó Általános Iskola). In the club, the young offenders
either tutored elementary school children needing help or provided assistance in administration. In the
elementary school, they assisted in carrying out leisure time and sports events organised for the kids. At
the Rügyecskék Foundation, they cleaned and collected waste in forests and public spaces (the woods near
the village Kistarcsa and the Small Danube cove at Csepel). Also, they repaired damage caused along an
“adventure trail”. At Csillebérc, the young offenders had an opportunity to carry out lawn maintenance,
they cleaned the native tree park, collected branches from the ground, removed fallen leaves etc. and
they also carried out repair works on wooden houses and garden furniture.
As an experiment, we invited peer-helpers to the programme. Each young offender was paired up
with a peer-mentor who assisted the young offender in the restitution process. We had 13 mentors
altogether. They were all members of the “Students’ Academic Society” (hereinafter TDK) of the
Criminology Department at Eötvös Loránd University Faculty of Law. The Criminology Department’s
TDK has a long history of social support work; university students have helped in providing after-care
support to young offenders after their release from prison as early as in the 1960s.
The programme continued after the expiry of the period in the call for proposals. Also, a restitution
network started to be developed in the city of Miskolc on the basis of the model. One of the key goals
of the project was to motivate the community and to increase the receptiveness of society.
From this aspect, the projects can be considered a success as all participating organisations said
they would gladly take part in the programme in the future. We would like to involve new network
members in the programme, such as state organisations responsible for social responsibility issues,
charity organisations and environmental NGOs as the approval of both the local and the broader Karolien Mariën
community is indispensable for the effective application of restorative justice methods. In Hungary, European Forum for Restorative Justice (Belgium)
it is an issue how restorative justice can work, given that the level of social cohesion is too low. At Contact +++ karolien@[Link]
this point, it is unknown whether the low level of social cohesion will distort the development of

4.2
restorative justice or whether restorative justice can improve social cohesion and help the emergence
of effective forms of social coexistence.

References

• Council of Europe (CoE), Committee of the Ministers (CM), Recommendation no. R(92)16 (19 October 1992) on the
European rules on community sanctions and measures Restorative Justice in
• CoE, CM, Recommendation no. R(2000)22 (29 November 2000) on improving the implementation of the European rules
on community sanctions and measures
• Parliamentary Resolution no. 115/2003 (X. 28.) on the National Strategy for Community Crime Prevention (available at
Belgian Prisons
[Link]

4.2.1 The Belgian prison system

For the moment, Belgium has around 10.348 inmates. 9.944 of them
are men and 404 are women, for a total Belgian population of over
10 million and a half. These inmates are divided over 31 prisons.
Some prisons only have very few inmates (the smallest prison only
has 60), while others have over 700 inmates.

224 ////////////////////////////////// +++++++++++++++++++ 225

58
Stefaan De Clerck. Belgian prisons can be divided into 3 types. people who were involved in the phase of detention, namely all the prison personnel and of course
the inmates themselves. The second question, how this should be done, was answered differently in
1. Closed prisons have a permanent security regime which is clearly each prison. A lot depended on the specific context of each prison: large prisons with a lot of inmates
shown by, amongst others, constant camera-surveillance and high and personnel, a small prison, an open regime, a closed regime etc. The means by which people were
walls surrounding the prison. informed ranged from spreading flyers to organizing information sessions and setting up working
groups within prison-personnel. In the beginning there was considerable resistance and scepticism
2. Half-open prisons are characterized by a secured regime during against this “new method” and this “new model”. This attitude is not so difficult to understand. The
working hours and at night. prison system has always had a culture of its own, a culture that has existed for a long time and that
can even be considered necessary for the safe and clear daily management of everyday life within
3. Within an “open” prison, the emphasis does not lie on severe security prison. Thus new ideas and efforts to renew the system are easily seen as a threat. Informing people
measures; the daily management depends rather on the voluntarily took a lot of time and patience, but it was a necessary step to take.
accepted discipline of the inmates. In these types of prisons, for A very important remark to make here is that informing people and making them open to the idea
example, one can not see high walls surrounding the building, nor of restorative justice was not only necessary in the beginning. It is something that had to be done
barbed wire etc. throughout the whole process. Changing the culture within a prison is not something that can be done
by one person. Restorative justice advisers needed the support of all the different groups within the
4.2.2 The origin of restorative justice in Belgian prisons prison. Therefore, informing these groups was of crucial importance.
After this first necessary step of informing was done, the first activities could be launched. A range
In 1996, the Minister of Justice58 emphasized, for the first time, the importance of introducing the of different activities were set up: activities for personnel or for inmates, or activities that involved
victim in the stage of detention. This led to the set up of an action research. This research, which people from outside the prison etc.
ran in 6 Belgian prisons from 1998 till 2000, was carried out in cooperation between the Catholic
University of Leuven and the University of Liège. Its purpose was to examine the different possibilities,
difficulties, chances and risks of a restorative justice orientated detention-system and to experiment Among others, the following activities were developed.
with different kinds of activities and programmes.
In 2000 the positive evaluation of this research led to the decision of the federal government that • Information sessions for inmates on the topic of the civil party.
all Belgian prisons should evolve towards a restorative justice-oriented detention system. In order • Sessions with inmates on the consequences of crimes to victims
to guide this process of change one restorative justice adviser was appointed in each prison. An
important remark here is that the size of the prison was not taken into account. Small prisons (with
• Setting up a so called “compensation fund”. This fund allows
inmates, in some prisons, to do voluntary work for a charity
for example only 60 or 100 inmates) as well as bigger ones (with a few hundreds of inmates) all got organisation. The money they earn with this work goes directly to
one adviser. The reason for this was that the advisers were hired to work at the management level of the victim in order to pay the sum due to the civil party. Only half of
the prison. They were supposed to work at the policy level of the prison, their task not being to work the sum due to the civil party can be paid in this way, the other half
individually with the inmates. The restorative justice advisers started working at the end of 2000. has to be paid by the inmates themselves. This program is a nice
A circular letter of 4 October 2000 set up the framework within which the task had to be developed example of how the three parties of a crime (the victim, the offender
and which described, amongst others, the role of the restorative justice advisers. and the community) can be involved in one project. Practice has
shown that this project is satisfying for all three parties. Offenders
4.2.3 Tasks and activities of the restorative justice advisers can take responsibility and pay a part of the sum due to the civil
party, and victims get money to pay for part of their loss and also
Although the circular letter should have served as a basis for the advisers, it did not give them very get to see that the offender is willing to take responsibility. The
concrete information on how to guide the process of change towards a restorative justice-oriented charity organisations not only get someone who works for them,
prison within their prisons. The document only stated the importance of making the structure and but they often also realize that inmates are not so different from
culture within the prison more restorative justice-oriented. But what was meant exactly by a restorative other people, that they are also “human”.
culture and restorative structures was not at all explained, nor were the means to obtain these goals
made clear. This is only a small sample of the programmes that were set up by
So the only basis for the advisers was the experience accrued in the action research. restorative justice advisers.
It is important to get a clear picture on the context in which the advisers had to work at the time.
The culture within the prison system focused on the offender. The victim hardly got any attention, the
damage caused by the crime was almost totally neglected and most of the people within the prison had
never heard of restorative justice before. Thus, it very soon became clear to the advisers that the first
thing that needed to be done was to inform people and to make them receptive to the new approach As it is very determinant for the work of restorative justice advisers, emphasis should be put on the
of restorative justice. Two important questions arose here: which people had to be informed and how fact that the work of the advisers must be situated on the policy or management level of the prison
were they to be informed? The first question was easy to answer: it was necessary to inform all the (see the text highlighted below).

226 ////////////////////////////////// +++++++++++++++++++ 227

 The “manager profile” of RJ advisers can be made Can inmates be forced to participate in restorative justice activities?
clear by the following examples. In some cases, like for example in the case of mediation, it is clear
that voluntary participation is indeed needed. In other cases, like
• The restorative justice advisers cooperate with organisations or
persons from outside the prison. One of these important partner
for example attending an information session, arguments can be
raised to, to some extent, obliging the person to participate. It is not
organisations is the mediation service (in Belgium this organisation an easy balance to find and in Belgium this was handled differently
is called Suggnomè). This cooperation makes it possible to in the different prisons, but it is an important issue to be aware of
organise mediation at the stage of detention (see article 4.3 in and to give some thought to.
this publication). Another important partner organisation is victim
support. Since restorative justice advisers work in a context where 4.2.5 Current developments in Belgium and future
the focus is mainly on the offenders, it is important that they work expectations
together with these organisations to keep a broad view.
• Inmates in Belgian prisons hardly have any information about
their civil parties: who they have to pay and what amount, that
In mid-2008, changes were made, and restorative justice advisers
no longer exist. There is still, in each prison, one person responsible
is why each adviser set up, in his/her prison, a procedure that for implementing restorative justice, but the main difference is that
defines how inmates should be informed about these facts. This these persons are now members of the management staff and also
procedure defines who the inmates can go to for more information have other tasks beside those related to restorative justice (like
concerning the civil party; and it outlines the procedure on how personnel management, logistics, finances etc.).
payments are made. Making a member of the management responsible for restorative
justice must be seen as ensuring the future of restorative justice in
prisons. Of course, only time can tell if this will really be the case
4.2.4 Difficulties and things to keep in mind concerning the or if the persons responsible for restorative justice will get caught
implementation of restorative justice in prisons up by other, more urgent things to do in everyday prison life.

One of the most crucial things in order to give the implementation of restorative justice a good chance
of working is to inform all the people involved. People want to know what restorative justice is about,
what it will mean in practice, what will change etc. This really is a first necessary step in implementing
restorative justice and should not be underestimated.
Another problem was the fact that, in the beginning, restorative justice advisers really had to
emphasize the additional benefits of implementing restorative justice in prisons. This is due to the fact
that the prison system has an “all hands on deck” approach. There was resistance to the appearance
of a restorative justice adviser whose only task was to focus on restorative justice in prison when at
the same time there were so many other important tasks to be done. Therefore it is very important
to inform people about what restorative justice means and what its additional benefits are.
The next point has also been mentioned earlier. The context of each prison took a great part in
defining the framework in which the restorative adviser could work. In comparison with a large and
closed prison, it is a lot easier for the adviser to communicate in a direct way in a small and open prison,
where he/she knows all the personnel and inmates by name. It is important to be aware of this and
to give the adviser the space to create his/her own way of working according to the specific context.
Also something to be aware of is that a prison is a place where the focus lies on the offender. This
is a possible risk for the advisers as they can get too caught up in the offender’s story. They have to
be aware of this risk and make sure that they keep a healthy balance between the offender’s side
and the victim’s side.
As a prison is a very enclosed place with a culture of its own, separated from the outside world one
of the problems faced was the difficulty to involve people from the “outside world”. There are no clear
contact persons or people to turn to. In the beginning, and also later on, it kept on being a challenge
to find the right people for the right project or activity.
Finally, the willingness of inmates to participate in activities was also causing difficulties. It is very
difficult to find inmates that are willing to participate in restorative justice oriented activities. Why
would he/she, voluntarily, spend his/her time on reflecting on the consequences of his/her offence?

228 ////////////////////////////////// +++++++++++++++++++ 229

 Bram Van Droogenbroeck 4.3.1 Situation in Belgium
Suggnomé59 Leuven (Belgium)
Contact +++ [Link]@[Link] Mediation programmes are operated on several levels within the
Belgian judicial system.
In the late 1980s a first pilot project was set up for juvenile
delinquents. Right now mediation is offered for young offenders in
each judicial district of Belgium. Files are referred by the prosecutor
service while the case is being prosecuted or during the court

4.3
procedure. Also, family group conferences are carried out.
In the 1990s criminal mediation projects were first introduced
for adults in minor crimes. If mediation is carried out, the public
prosecutor can drop the case and not prosecute under certain
conditions. Victim offender mediation (VOM) is one of the possible

Victim Offender forms of mediation, which can also be used in the case of serious
crimes and in cases where the prosecutor has already decided to

Mediation in Severe prosecute and a trial will be held. The mediation process itself
takes place independently from the judicial system, but its result

Crimes in Belgium: can influence the further judicial procedure since the judge can take
its outcome into account. Both forms are regulated by legislative

“What Victims Need acts: the Act of 10 February 1994 on Criminal Mediation and the
Act of 22 June 2005 on Victim Offender Mediation.

and Offenders can Offer” Mediation is also used at the level of the police, but only in a few
cities. Here, cases of minor crimes are selected by the police, and
most of the time the cases are not prosecuted afterwards, but there
is no guarantee.
Last but not least, mediation is also carried out in prison when the
punishment is being served. In 2000 the Minister of Justice decided
that restorative justice practices should be used in prisons. Since
November 2000 restorative justice advisers have been working
in almost every Belgian prison and one of their tasks has been
to facilitate communication between victims and offenders (see
article 4.2). Mediation was first started to be used in prisons in
2001 for convicted offenders and their victims. Mediation sessions
were located outside the prison system in order to keep in line
with the principles of restorative justice. Mediation started on
an experimental basis; the inmates of three prisons and all the
victims in the Flemish part of Belgium were offered the possibility
to join a mediation programme. We did not want to discriminate
the victims whose offender was in another prison. Since the Act
on Victim Offender Mediation each party involved in a crime can
ask for mediation.

4.3.2 The philosophy of restorative justice

The philosophy of restorative justice is to bring victims and

offenders into contact. It is about giving the conflict back to them,
communication about the crime and its effects on both sides. 59
Suggnomè (it is an old Greek word which
Communication can be indirect (through the mediator as a go- means looking at the same reality from
different sides) is recognized as an umbrella
between) or direct (in a face-to-face meeting). and forum organization for victim offender
mediation in the Flemish part of Belgium.

230 ////////////////////////////////// +++++++++++++++++++ 231

 4.3.3 Why VOM was started to be used after sentencing? There are two questions that arise most. Is it possible to carry out
mediation in these kinds of crimes? Even if it is possible, do parties
Sometimes it is not possible to offer mediation before the trial. want to participate in mediation? The answer to both questions is
Often, the offer to mediate came too early. It was too soon for even “yes”. It is possible, mediation can be applied in such cases for over
considering contact with the other side. This is connected with the five years of imprisonment, and yes, people do wish to participate
process of coping with the crime. in mediation in these severe cases as well.
Sometimes, the victims are also afraid that mediation might result The following figures prove this:
in benefits for the offender and that is why they do not wish to
participate in mediation before the trial. Also, it is recommended
to offer mediation in all stages of the criminal procedure. But
• over eight years the Suggnomé has had 630 demands for
mediation;
if victim and offender want mediation before the trial, it is
possible even in severe cases.
• the Suggnomé had 343 mediations processes (with the
participation of one victim and one offender) with 84 face-to-
Mediation programmes have three main principles. face meetings;
The mediator is neutral. He/she is not ethically neutral and not
only because in severe crimes it is impossible, but also because
• mediation was carried out in respect of 124 property crimes, 108
homicides/murders and 111 sexual offences.
mediation in general starts with the recognition of one party
harming the other and accepting responsibility for his/her acts. The bigger the impact of the crime, the bigger the need for
However, the position of the mediator is neutral. The mediator mediation is. Victims will be re-victimized if these types of crimes
takes care of the interests of both parties; he/she shows respect are excluded from mediation.
for both sides and treats them as equals. To ensure the neutrality
of the mediator, it is important for the mediator’s actions to be [Link] Why do parties want to participate in mediation?
transparent.
The participation is voluntary for both parties. There will always The victim’s side
be victims who do not want contact with their offender, and there
is no reason why they should. One shall not try to convince them,
their opinion shall be respected. It is the other way around; the
• There can be lots of questions about the crime, remaining
especially in cases of homicides where the victims are the
need of those victims shall be answered who do wish to establish deceased person’s relatives. They want to know details that are
contact. To avoid re-victimization, victims must not be pressured sometimes really small (but that are very important to them).
to participate in any way. For example: “Where was the car parked?” “Where is the other
It neither has any use to force an offender into dialogue with the shoe, why was the key at that side of the door?” “Where exactly
victim. Although it can be argued that in serious cases, offenders did you throw his body in the river? Because I can’t find the
should be coerced into participating in mediation if the victim wishes place and it is important to me…”
so, but in reality this would never work. They also almost always want to ask the question: “Why did
One of the consequences of this principle is that both parties you do it?” To ask that question is even more important than
can discontinue the mediation whenever they want. The mediator to get an answer, because there is never ever a right answer. An example from the practice a
can only ask the offender to reconsider his/her decision as it could But they want to know how the offender reacts to this question. man’s son was killed for his car.
harm the victim again.
Mediation is confidential. The Act on Mediation guarantees
• Victims also often want to know if the offender is still thinking
about the crime. “Does it still keep him/her awake?” “Does he/
The offenders needed a car to do
a robbery. For them it was just the
confidentiality. Communication to courts is only permitted if she regret it?” driver of a car, for the father it was
both parties consent. In case of prison mediation, the prison is
of course informed about the mediation process. It is prohibited
• Sometimes victims also want to express something. They want
to tell the offender what has happened to them; how they have
his son. He came to the prison with
pictures (a full album) and stories
to enter a prison with a victim without the consent of the prison been affected by the crime; what the offender took away from about his son, so that the offenders
board. them. It can be very important to express feelings of hurt, would know what they took away
sadness, anger, just to come clear with it. from him.
4.3.4 Mediation in practice

Mediation in prison almost always means mediation in “severe

crimes”. Long sentences are imposed for serious crimes like
• Sometimes victims also want more information about the
offender: “In which prison is he/she?” “Does he/she work
homicide, murder, manslaughter, armed robbery and sexual assault. there?” “When will he/she be released?”

232 ////////////////////////////////// +++++++++++++++++++ 233

In one case a man killed his wife
and later on wanted to re-establish
• Sometimes (but rather rarely) they want a meeting in order to
reconcile. This usually happens when offender and victim know
The parties decide how the mediation process will be carried out.
Sometimes the mediator is a go-between, but face-to-face
contact with his children. In each other or are relatives. meetings usually prove to be the most interesting option.
another case, a man put fire to his Within this project there have already been 84 face-to-face meetings.
house after an argument with his
girlfriend. She was in hospital for
several months and she wanted to
• Financial compensation is only very rarely the topic of mediation.
Even if an arrangement is made for compensation, it is mostly
[Link] Face-to-face meetings

participate in mediation in order to symbolic.

end the relationship peacefully. Two things are very important at a face-to-face meeting. One is “As mediator, I myself have
The offender’s side careful preparation. The mediator has to prepare both parties conducted 25 face-to-face-
for what they will be confronted with, what they will see: anger, meetings, all in very severe
• The offender may feel the need to explain things, why he/she
committed the offence (although in cases of murder this is the
sadness, minimalism, questions, remorse and other emotions and
then to let them choose whether want to go through the mediation
crimes, most of the time in cases
of murder, armed robbery or sexual
most difficult thing to do). process. If they do decide to take part in mediation, they can deal assault. The shortest meeting
• Often they want to apologize to their victims for the harm they
caused to them. E.g. frequently some inmates want to write a
with a lot in the process.
The mediator has to take all the necessary time to prepare the
lasted 45 minutes; the longest
took four hours and a half. The
letter to their victim, but they are not always encouraged to do so. meeting. youngest victim was 7, the oldest
• Sometimes they just want to restore, they want to do something,
anything, for the victim, to answer their questions, listen to
Preparation sometimes means also very practical questions like
for instance the size of the table. Support is as well very important.
75. I had one meeting with a female
offender.
them, or to pay some form of compensation to them. What do parties need for the meeting? What kind of support do they These face-to-face meetings are
• In crimes between people who know each other or who are
related to each other, they want to restore contact.
need, somebody sitting next to them, or somebody sitting opposite
them, as well as care afterwards. The mediator has to balance the
the reason why I am doing this job.
Face-to-face meetings concerning
• Sometimes they want to settle practical issues. needs of both parties. And a good mediator can never forget about
– the coffee…This could help a lot with breaking the ice.
severe crimes are special,
frequently touching, with much
A mediation process can last for several months. dept sometimes even touching an
An inmate wanted to visit the As mentioned above, either party can initiate mediation. Mostly The result of the mediation may be taken into account for ordering existential level. Each time one
grave of his victim, but this was offenders contact the mediation service because mediation is well of release on parole. can be surprised by the serenity
not possible as he was not allowed known in prisons. They are together in one building so it is easier to It is also very important to provide support for the participants of those meetings. One can also
to visit the city where the victim’s inform them about the possibility of mediation. It is a lot more difficult after the face-to-face meeting. For the mediator it is important to be surprised about the capacity of
mother lived. The victim’s mother to inform the victims. Victims initiate mediation in only 10% of the sometimes mediate with another mediator or at least to be able to people to talk about those things.”
was asked if he could visit the cases. This is a problem in the Suggnomé’s project which needs a contact a colleague after such a meeting. (The author)
cemetery once. She said yes… solution. Victim support organizations are informed, a book is written
on the issue, and attempts are made to work together with the media 4.3.5 Results
to publish stories. Hopefully with the new law, which will oblige the
judicial authorities to inform every party linked to a crime that they can It is indeed very difficult to measure the results. How can it be
ask for mediation, the number of demands from victims will increase. proven that the fact that people sleep better, have less fear, dare
But at the moment, mediation is mostly requested by offenders. to walk alone on the street again, have better school results is the
There is a first conversation with the applicant to explain the outcome of a mediation? Because this is what people are telling
concept of mediation and its principles to see if mediation is what the mediator?
he/she wants. We ask what the crime is but they are not requested According to the personal notice of a therapist, one mediation
to tell all the details. This is to protect their privacy, since it is not session has the effect of one year of therapy.
necessary to know all details of the case the parties decide not go
along with the process of mediation.
Getting known their motivation is very important, not in order to
select, but to inform the victim of the offender’s motive to seek to
participate in mediation. It is very important not to decide in their
place! A mediator can never do the selecting.
Afterwards the mediator contact the victim by letter. If he/she is
also interested in mediation, the mediator makes an appointment
and then the mediation process can begin.

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 Robert Friškovec
National Prison Administration (Slovenia) mediation. A sufficient degree of autonomy has to be provided for the
Contact +++ [Link]@[Link] mediation service. Mediation ought to be a service that is generally
available to all that would like to use it. Therefore, legislation should

4.4
facilitate mediation and find solutions for its wide application. Mediation
should also be available as a possibility at all stages of the criminal
justice process – as is the case, for example in Belgium according
to relevant legislation (see articles 4.2–4.3 in this publication).

4.4.3 Victim offender mediation in Slovenia

Mediation in Prisons and The Code of Criminal Procedure in 2000 provided a nationwide

Restorative Justice in programme for the introduction of an alternative procedure for

resolving petty crimes. Over the year 2000, a total number of 837

the Repubic of Slovenia cases were successfully resolved through victim offender mediation.
This also means that 837 less court hearings were held, which is the
equivalent of the caseload of 5 judges and 7.5% of the total number of
solved cases. From all the cases referred to victim offender mediation,
48% of them were resolved successfully and 52% of them were
unsuccessful. This result might be regarded as satisfactory given
4.4.1 Mediation in prisons and restorative that this form of mediation was still a new practice at the time and a
justice around Europe and beyond lot of people were not familiar with it. The most frequent outcomes of
mediation are the following: apology, compensation for damage and a
There are two documents of particular international importance. combination of the previous two. The most frequent offences are theft,
One of them is a document of the United Nations entitled Basic damage to property, fraud (which is unusually high in comparison to
principles on the use of restorative justice programmes in criminal the European average), endangering safety and maltreatment.
matters (2002) and another was published by the Council of Europe According to relevant legislation, the State Prosecutor’s Office is
with the title Recommendation R(1999)19 concerning mediation obliged to organise compulsory training courses for mediators in
in penal matters. The Recommendation provides a definition of criminal matters. The first Introductory Training Course started in
mediation, which states that mediation in penal matters is: “[...] any December 1999 and over the year 2000, 194 mediators dealt with an
process whereby the victim and the offender are enabled, if they average of 8.6 cases each. In the same year the Supervisory Board
freely consent, to participate actively in the resolution of matters was established in order to prevent misuses of mediation. A year
arising from the crime through the help of an impartial third party later, in 2001, the first organization of mediators was set up – the
(mediator)”. Association of Slovenian Mediators. Now Medios is another active
The definition of the Council of Europe tries to establish a common organization of mediators.
ground, but on the other hand we can see a great diversity in
approaches and legal regulations concerning mediation around 4.4.4 Development of the practice of
Europe. Beside victim offender mediation being the predominant mediation in the prison system of Slovenia
model for the resolution of issues arising from crime through the
active participation of persons involved, there are other possibilities As already mentioned, in the year 2000, the Criminal Code introduced
such as restorative justice conferences and circles, which include victim offender mediation as an alternative method for resolving
communities in the process more intensively. criminal cases. The purpose of this solution was especially to achieve
settlements between victims and offenders and between juvenile
4.4.2 The principles of mediation according to offenders and their victims. In the year 2007 the first training for
the Council of Europe’s Recommendation R(1999)19 mediators in prison was organised, which was attended by seventeen
employees of the Prison Administration of Slovenia. An advanced
The recommendation of the Council of Europe provides some guidelines training programme for mediators is also being prepared. All the
for mediation. The first and the second articles stress important trainings qualify workers in prisons to use mediation in formal
elements – voluntary participation of all participants and confidentiality, and also informal ways in particular cases. Last year another
ensured by the mediation service. As well as confidentiality, the introductory training for mediators was organized and eighteen prison
recommendation also stipulates the mediator’s impartiality in administration employees attended and successfully completed it.

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4.4.5 Cases suitable for mediation

Mediation in prison can be useful for different types of conflicts. One of the most suitable cases is when
two prisoners are in a dispute. Prisoners are officially on the same status level, and therefore usually
mediators do not need to put much effort into ensuring that there is a feeling of equality between the
parties during the process. Conflicts between prisoners can range from petty disputes, for example if
somebody’s belongings have gone missing to more serious cases such as assault. Addressing a conflict
between a prisoner and a guard is more difficult because of the differences in their statuses. Even if
officially there is no hierarchy between them, an informal notion of separation and inequality is still Andy Hudson
present. The situation is similar when a conflict breaks out between a prisoner and a member of the HM Prison Service (United Kingdom)
pedagogical team who is, from the prisoner’s perspective, a part of the disliked “system”. Mediation Contact +++ [Link]@[Link]
can also be a useful tool in conflicts between prison administration and employees. The mediator
can facilitate a mediation process between the prison and the prisoners in cases such as strikes,
especially hunger strikes. The mediator can also use his/her skills to mediate between prisoners and

4.5
their relatives who are not necessarily involved in the conflict, but are having communication problems.

4.4.6 Uncertainties and dilemmas

There are a few uncertainties and dilemmas concerning the use of mediation in prisons. One of the
obstacles lies on the side of the staff, because guards and the pedagogical team are usually not in favour
of new methods being forced on them. Some of them also think that mediation would mean extra work for “Active Citizenship Together” –
the same salary. Some degree of fear from the unknown is also present, usually because of superficial
knowledge on mediation. Prisoners on the other hand have difficulties trusting the process as such and Integrating the prison into
they especially question the notion of confidentiality. The structure of the penal system is not too elastic
and willing to except innovations such as mediation. The fear that prisoners will abuse the service is the lives of the local community
also present sometimes. All those fears and uncertainties are mostly connected with the concept of
mediation not being presented in a clear way to prison staff and prisoners. Many fears and obstacles
could be eliminated through further clarification of the concept of mediation and further practice.
in the United Kingdom
Providing appropriate mechanisms for the full establishment of mediation in prisons still remains
a challenge. Additional funding, trainings and staff are necessary in order to provide better services.
There is also a lack of supporting legislation for the use of mediation in prisons. Successful cases are
needed as examples to be able to better promote mediation. In fact, examples of successful mediation
processes can be the best tools for establishing mediation services in prisons. On the other hand,
we do have to be aware of the fact that there have been cases where mediation was misused, and
these can cause much harm to all parties involved. Training and supervision is therefore essential.

4.4.7 Further plans

Organizing trainings for mediators in prisons and attracting new prison administration employees 4.5.1 Introduction
are planned to be continued. In cooperation with NGOs, trainings in the field of restorative justice,
especially victim offender mediation, are being organized for mediators. Organizations of mediators When managing a prison with low security levels it is important to
actively participate in shaping legislation concerning mediation. Setting up suitable mediation services create a positive relationship with the local community whereby
inside and outside of prisons still remains a great challenge for mediators in Slovenia. the prison is integrated with the community and vice versa. HMP
Standford Hill is an open prison with 464 male prisoners who are
References serving sentences ranging from a few weeks to a “life” sentence.
Most of the prisoners are not from the local area but as an
• Council of Europe, Committee of the Ministers, Recommendation no. R(1999)19 (15 September 1999) concerning establishment the prison is part of the local community.
mediation in penal matters “Active Citizenship” is about being involved in the community,
• United Nations − Economic and Social Council, Resolution no. 2002/12 (24 July 2002) Basic principles on the use of having one’s say and taking part in decisions that affect one. It is
restorative justice programmes in criminal matters ([Link]/ecosoc/docs/2002/Resolution%[Link]) essential that it involves the governor, senior managers, the prison

238 ////////////////////////////////// +++++++++++++++++++ 239

 staff, the offenders and the local community outside. With this in 4.5.3 Island Sports College
mind the vision statement for Standford Hill Prison is “Together
we make Standford Hill a Safe, Decent and Positive Community”. The purpose of the Physical Education Department (hereinafter PE
The following examples will show how to work toward integrating Department) within Standford Hill Prison is
the prison into the lives of the local community.

4.5.2 Active Citizenship Together for Swale (ACT Swale)

• to address the offending behaviour of prisoners, to tackle the
criminogenic factors and reduce the likelihood of re-offending
upon release;
ACT Swale is a partnership project formed under the banner of the
Swale Community Safety Partnership in March 2007. Key partners
• to provide a high quality physical education programme which
includes structured classes and activities designed to meet the
include Amicus Horizon, who are a housing trust providing homes needs, abilities and aptitudes of prisoners and offer support
for the elderly and disadvantaged people, and Swale Borough and advice to prisoners and staff on issues relating to physical
Council. The project is jointly funded by these two organisations recreational and lifestyle activities;
and managed by staff from Standford Hill Prison.
ACT Swale are a team of five serving offenders on temporary
• all activities in the PE Department will as far as possible reflect
the activities on offer in the community which people can expect
release from HMP Standford Hill, a supervising prison officer and to participate in on release;
Year 1 pilot project saw 23 offenders
go through the scheme, 19 (83%)
supporting departments within the prison (Working Out Scheme,
Gardens Department, Offender Management Unit). In addition
• to encourage social responsibility through the medium of sport
and recreation and offer relevant vocational training to assist in
demonstrated a decrease in their operational project leads are assigned from Amicus Horizon and rehabilitation.
likelihood of re-offending. 199 jobs the Council.
were completed and 130 tonnes of The Working Out Scheme within the prison identifies and risk- A Peer Tutor Scheme is well used across the PE Cluster using
waste cleared from the borough. assesses suitable candidates for the work. Once selected, the selected offenders who are trained to help and advise their peers.
Amicus customer satisfaction rates offenders sign a compact to agree to work on the project and abide They help to run courses passing on their knowledge to other
rose 12% and the value for money by certain rules. They receive training in the use of garden tools and prisoners, increase learning and teaching across many areas. The
assessment showed project worth general health and safety before starting on the project. Amicus use of peer tutors helps to build self esteem and confidence and
double its actual cost (based on the Horizon and Swale Borough Council co-ordinate and primary risk many of the peer tutors have gained employment in the leisure
market price of work carried out). assess jobs and the prison officer supervisor conducts secondary industry on release from prison.
Year 2 saw a second “landscaping” risk assessment for hazards on site. Many links with employers have been built up including various
team established for a four month Outcomes are measured by Amicus for customer/resident health clubs, companies and sport teams such as Virgin Active,
pilot project from December 2008 satisfaction, Swale Borough Council for cleaner, greener targets Fitness First, David Lloyd, Serco Leisure, Greater London Leisure,
to April 2009 with 300 more jobs and reduced fear of crime, and HM Prison Service for change in Charlton Athletic and Leyton Orient Football Clubs, and London
completed by team 1 and several offender behaviour. In addition, outputs are measured for value for Towers Basketball Club.
large project jobs completed by money. It is far more cost effective to use the ACT Swale team than The Island Sports College has developed positive links with
team 2 and over 160 tonnes of to use contractors for the work being completed. the local community such as Health and Fitness Solutions which
waste collected. 40 offenders Swale area organisations have been the sole contributors for is a social enterprise scheme set up with prisoners trained and
have gone through the project the two years of the pilot project, Canterbury City Council now delivering courses for the Island Partnership which is a local charity
and 32 (80%) have demonstrated buying in for 2009/2010. Amicus use the project to clear gardens for based in Sheerness.
sustained improvement in skills vulnerable, disabled and elderly clients and also for project work They have also created links by bringing the local community
and a reduced risk of re-offending. in the Swale Borough (and some further afield). The Council uses inside with many community groups visiting the PE Department,
the team for public open spaces and community requested work. including access to the swimming pool where life guards and
swimming lessons were provided and, along with the Working Out
Scheme prisoners were provided to help at some of their centres.
The Community response has been extremely positive, letters Team building and healthy living schemes are also provided for
of thanks, e-mails, photos have been sent in by residents. Media local schools. The Minster College and the Borden Grammar School
response has also been very positive – numerous write ups and some have co-operated in the programme, this latter one has provided
high profile visits over the two years. Awards for Environmental £6.000 towards our mobile team challenge kit.
Excellence as well as other awards have been won. Offenders on Community liaison has been further developed by raising charity
the scheme are better behaved in the establishment and more for the local community and over £5.000 have been raised for the
positive about their life after prison. local community charities.

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 4.5.4 Conclusion Melinda Gyökös
Ministry of Justice and Law Enforcement (Hungary)
“Active citizenship” is, above all, about people making things happen Contact +++ [Link]@[Link]
and giving serving prisoners a real chance to give something back
to the community by way of reparation for the offence that they have

4.6
committed. But also, as a result of this, they are able to improve
the quality of life of residents in the local community and positively
enhance their personal confidence and self esteem.
This all helps towards achieving the joint vision that “Together
we make Standford Hill a Safe, Decent and Positive Community!”

“Restorative
Prison” Projects
in Hungary
4.6.1 The paradigm of restoration,
crime prevention and restorative prisons

In Hungary, the paradigm of restoration is closely connected to the

objective of crime prevention: the National Strategy for Community
Crime Prevention (hereinafter strategy) in 2003 was the first
government-level paper that included the goal to use restorative
practices more extensively. The strategy specifies five priorities of
community crime prevention60 and defines long-term goals for each.
The strategy’s goal is to apply the principles of restorative justice
primarily for the purpose of reducing juvenile delinquency, preventing
re-victimisation, protecting victims and avoiding re-offending.
The strategy’s philosophy is that effective restorative procedures
also have a preventive effect by nature. Restorative justice focuses
on the offender, the victim and the community: they are the parties
who can work out a settlement to resolve the conflict caused by the
crime. During the settlement procedure, the offenders may realise
the consequences of their crimes and they also have the opportunity
to agree to make amends to the victim (the party injured directly by
the crime), and to the community (the party affronted indirectly by
the crime, that is, through the violation of law). Ideally, this generates
some kind of commitment to the interests and values of society, and
this may prevent the criminal from re-offending in the future.
The implementation of the strategy’s objectives is coordinated
by the National Crime Prevention Board (hereinafter NCPB).61 The 60
Community crime prevention is a
NCPB is an inter-ministerial body embracing all relevant actors of professional/NGO movement controlled
and supported by the state, which seeks to
community crime prevention. In addition to its task of coordinating improve public safety by enhancing the self-
the government’s crime prevention efforts, the NCPB also provides defence capacity of communities.
financial support (through calls for proposals) to local initiatives that 61
For its members and operation, see
provide practical and appropriate solutions to local problems with the Government Resolution no. 1002/2003 (I.
8.) on certain government tasks related to
involvement of a wide range of local stakeholders. The programmes increasing the efficiency of crime prevention
supported by the NCPB are pilot projects that may be used extensively. efforts.

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 The NCPB has been issuing calls for proposals each year since 2004.62 Initially, the programmes
were funded directly from the budget. Since 2006, however, the NCPB’s only resource has been the 1. According to the requirement of usefulness, the service to be
so-called “second 1%” of the personal income tax that people can choose to offer in their tax returns provided must be a need, a missing item for the local community.
for public benefit (in this case, for community crime prevention). For this reason, the prison must identify the “niche service” for
For the prevention of re-offending, the NCPB has been supporting reintegration projects for prison the given town or area’s community.
inmates since 2004. The themes of these projects have mostly been skills development and vocational
training programmes. Inspired by good practices in the United Kingdom (Stern 2005), the NCPB started 2. The restitution service addressing the need must be easy to
to issue calls for proposals in 2006 for restorative activities that contribute to the integration of prisons communicate: it must be marketable and visible in order to
with the life of local communities and thus support the reintegration of prisoners into society. The challenge the prejudice the local community may have against
model projects developed and implemented with the NCPB’s support represent the practice of the prisoners.
“restorative prison” concept in Hungary. These projects attempt to integrate the prison into the local
community through the provision of restoration and restitution services to the community. [Link] Communication
Each and every programme includes a communication element in
4.6.2 The general features of restorative/community prisons order to establish a human relationship between the prisoners and
the various communities of the local population (at joint events, for
The Hungarian “restorative prison” projects has nothing to do with the procedure-oriented restorative instance) and to inform as much of the local population as possible
practices. Instead, these programmes do not involve the party directly injured by the crime but offer of the restitution service’s results.
a chance to convicts who show remorse to make amends while they serve their prison term. The
inmates make reparations to the local community, which is indirectly affected by the crime (due to [Link] Partnership
the violation of the law), and not to the specific and directly injured party, the victim. This means that Due to the above mentioned objectives, all programmes have been
instead of providing compensation for the specific injury they caused, the criminals improve the local carried out with a wide range of relevant partners involved. Prisons
community’s life by producing useful and visible results. took a leadership role and in the majority of cases they were able
The common qualities of good practices that enable the prison to be a part of the host town’s or to establish cooperation with local governments, education and
area’s life are presented below. training institutions and NGOs active in the area.
Table 9 (see at the end of this article) summarizes the key
[Link] Vocational training and skills improvement element information related to each specific restorative prison projects
Each project involves vocational training and skills improvement programme in some form. The purpose carried out with the financial support from the NCPB since 2006
of vocational training is to prepare the prisoners for the work they are to do for the benefit of the in Hungary. In the following sections, those characteristics of
community. As a result, the vocational training phase is always the first step in the programme, serving as individual projects will be discussed that are good examples of
a foundation for the further programme steps and items. Ideally, the knowledge gained by the prisoners how the principles of restorative prison projects are implemented
will be useful for them in their life after their release. In the course of planning these restorative prison in Hungary and adapted to local circumstances.
projects, it is advisable to find services that are needed/undersupplied in the community. This also
means that, in an ideal case, there is a demand in the labour market for the given special vocation. 4.6.3 The specific characteristics of the
According to the recent practice, the skills improvement element of the project is a permanent item Hungarian “restorative prison” projects
that is present throughout the entire project and provides competence and skills that help reintegration
after release (for instance, job search, labour market, self-awareness and non-violent conflict In Hungary, the practice of restorative prison includes wide-
resolution skills). Ideally, within the scheme of skills improvement, the opportunity should be taken ranging and diverse projects. This is partly due to the call-for-
to make the inmates understand that the service they are to deliver is an active means of accepting proposals system which is flexible enough to accept initiatives
responsibility for the crime. conscious about the mental aspect of the restitution service. However, with local characteristics but it is also a result of the creativity
in Hungary, restorative prison projects so far have very often lacked the effort to make participating and innovativeness of project owners who have found appropriate
inmates conscious about this mental aspect, namely to improve their ability and willingness to live the content for ”restorative prison” schemes in accordance with local
experience of repentance and restitution. (Missing this goal might lead to practice when restitution and domestic challenges.
service is considered by the inmates as any other means of killing time.) In two projects at the National Penal Institution of Állampuszta
(Állampusztai Országos Büntetés-végrehajtási Intézet) all general
[Link] Restitution service elements were successfully implemented within the framework of
A key element of these programmes is an activity that is to the benefit of the community, the so-called the town improvement activities in the area of the two settlements,
“restitution service”, carried out with the active involvement of the offenders. All other programme items Harta and Solt, that host the prison for the general feabures of the
(vocational training, skills improvement, partnership) are meant to support the implementation of the projects see (for the general features of the projects see Table
62
The list of the calls for proposals is
restitution service. There are two requirements that must be taken into consideration as factors when 9). A particularly unique element in these projects was the way in available at: [Link]
the “restitution service” is selected. which the organisers reacted to the special needs of Roma minority [Link]?pid=94.

244 ////////////////////////////////// +++++++++++++++++++ 245

 prisoners, a significant group of the prison’s population. In the project involved inmates who were also local citizens, that is, they
2007/2008 project, Roma prisoners had the opportunity to attend were expected to go on with their lives in the area of Sátoraljaújhely
specialist training in order to learn a traditional handicraft. Also, after release. Therefore their restitution services were provided to
they could practice and show their musical talent and practice the community they were to reintegrate into following their release. Regardless of the fact that the first
their traditions. Another element of the project rarely implemented in Hungary (due project had ended and the financing
Another distinctive characteristic of projects at this institution was to the short term of financing and lack of methodology) was follow- period had expired (in 2007), the
that the organisers were creative enough to organise joint events and up evaluation. The project inmates are given follow-up care with the Sátoraljaújhely local government
programmes with the local population. In most projects in Hungary, this assistance of the probation service for a period of two years after decided to contract the penal
programme element was missed out in spite of the fact that this is of their release, which is a tool of evaluation at the same time. institution to secure the public work
key importance in the original British versions of the projects. The choir A project at the Heves County Penal Institution (Heves Megyei of inmates for town improvement
and the theatre company of the inmates performed at various events Büntetés-végrehajtási Intézet) included general elements combined purposes. In Eger, female inmates
organised by the local communities and institutions in Harta and Solt. with town improvement objectives (see Table 9 for details) but it of the Heves County Prison Carried
The Balassagyarmat Penitentiary and Prison (Balassagyarmati also had a special characteristic: activities were organised that out restitution work in public
Fegyház és Börtön) successfully implemented the general elements of allowed the participation of both male and female prisoners inside spaces as early as in 2007, that is,
the concept (see Table 9) in both in its projects. The projects were aimed and outside the prison. While the female inmates worked in public before its first supported projects
at cleaning and reconstructing various neglected public spaces to spaces of the town in a manner visible and recognisable to the were launched (in 2008). In 2008,
allow the local population to start using these areas again. The results public, the male prisoners repaired, within the prison, the mobile the female inmates of the Pálhalma
exceeded expectations in both cases. As early as after the first project, parts and equipment of the playground the local government had Prison performed a puppet show
the prison and the local government signed a cooperation agreement to selected to be reconstructed in the project. they had practiced at their puppetry
allow the inmates to participate in further urban planning activities. As club to sick and disabled children.
a result of the first project, efforts were made to facilitate the inmates’ 4.6.4 Conclusions In addition, another group of female
”self-help” activities: the self-awareness and conflict resolution group inmates carried out public space
continued to operate after the end of the project but the majority of the On the basis of three years of restorative/community prison projects reconstruction work at the local
participants were new. However, a number of “group veterans” agreed we can conclude that it is definitely a step forward that the penal cemetery. In 2009, the inmates of
to attend the new phase of the meetings to help the new members institutions receiving support under the scheme now implement the Győr-Moson-Sopron County
become accustomed to the group. By the time the second project was the philosophy of restorative justice much more consciously. They Penal Institution performed
being implemented, the prison had become a significant player in the follow the projects of other prisons and they discuss their ideas restorative work at the local
local community. It had become a factor in organising the community and problems with each other when they plan their new projects. zoo, at the playground of a local
as it activated a number of non-governmental groups and involved both It is also a positive development that a number of symbolic kindergarten and in the building
the local population and the students of the elementary school near restorative projects have been implemented in the past two years of a foundation that takes care of
“Palóc-liget” (the park that was reconstructed) in the reconstruction without the support of the NCPB at the local governments’ or the children with birth disorders.
work. Active cooperation developed between the elementary school prisons’ own initiative (see the text highlighted).
and the prison. Teachers confirmed that the behaviour of evening class
students of the elementary school noticeably improved after their
visit to the prison and their discussions with some of the inmates. The However, the lack of resources and capacity is a recurring problem
pupils of the school who were trained as peer-helpers will make efforts as it can significantly limit the opportunities of the institutions to run
in the future to prevent their schoolmates from damaging the park such programmes. The “territorial scope” of the programmes is also
or from using it improperly while the classes of the school will each strikingly limited. It is the same 8-10 penal institutions that apply good
“adopt” a part of the park and will take responsibility for maintaining practices year in and year out in spite of the fact that the programmes
the good condition of that part. could be easily adapted by other prisons also.
The Sátoraljaújhely Penitentiary and Prison (Sátoraljaújhelyi It is still a challenge to spread good practices at a national level, to
Fegyház és Börtön) implemented the general elements of the provide intensive personal care for the inmates participating in the
concept (see Table 9). in its two projects with specific objectives: the projects (to help them experience the restitution they carried out)
establishment of a prison museum and the reconstruction of “Hősök and to establish a balanced relationship between the institution and
temetője” (Heroes’ cemetery), a cemetery of historical significance. the local community.
The projects therefore aimed at meeting the local population’s In conclusion, it can be said that the implementation of the restorative
demand for preserving and popularising cultural, scientific and local prison concept is progressing slowly but surely, but there are still a
history-related values. The second project has some special features lot of opportunities to exploit. It is quite simple to recognise that the
that are not expected to work in Hungary in spite of the fact that they application of restorative justice principles – with its potentially useful
are implemented in the original British projects. For instance, the objectives – is common sense. The rationale is that the offenders will

246 ////////////////////////////////// +++++++++++++++++++ 247

 not evade punishment, but while they serve their terms, they will also
carry out an activity that can be valuable for the local community, which
is also injured by the crime committed. The supply is therefore provided
by the inmates ready to show their remorse by providing services, and
the demand is provided by the community’s various needs (for instance,
public spaces needing development). Project name “Give me a chance to make it right”
The penal institution may also be motivated to establish a link (location of the institution) (Balassagyarmat Penitentiary and Prison)
between the demand and the supply as there is evidence that tension
can be relieved if appropriate activities are organised for the inmates. Period 2007/2008
It is a significant factor that programmes that are both successful Cooperating partners Balassagyarmat local government
and well-communicated may change the popular misconception that Office of Justice, Nógrád County
inmates’ have a better quality of life than many of tax-paying citizens. Társadalmi Visszailleszkedést Segítő Egyesület
This common sense-based approach of the restorative prison (Association for Social Reintegration)
concept may be the factor that can persuade penal institutions Magyar Iparszövetség Oktatási és Szolgáltató Központ
Table 9 and local governments to become more active in organising (Hungarian Industrial Association Education and Service Centre)
General features of the Hungarian restitution services even in these days when there is a lack of staff Specialist training Park caretaker training
restorative prison projects and resources. It has been proven in this article that the necessary Skills development Self-awareness and conflict resolution training
carried out with financial know-how is available. All we need now is the more extensive Labour market skills, job search training
support from the NCPB application of these restorative methods. Restitution service Cleaning and landscaping around the new coach terminal
Repairing damaged public structures
Project name “Complex model programmes for the implementation of Reconstructing the military cemetery
(location of the institution) restorative justice principles” (National Penal Institution of Állampuszta) Communication Official ceremony of opening the park
News and reports for the media on the progress of the project
Period 2006/2007
Cooperating partners Harta local government
Office of Justice, Bács-Kiskun County Project name “Joint effort for protecting the natural environment at the Palóc-liget”
Specialist training Park caretaker training (location of the institution) (Balassagyarmat Penitentiary and Prison)
Skills development Presentations by NGOs on the protection of the
environment and local historical values Period 2008/2009
Restitution service Landscaping and reconstruction Cooperating partners Balassagyarmat local government
Removing litter Police Station, Balassagyarmat
Reconstructing the old cemetery Társadalmi Visszailleszkedést Segítõ Egyesület
Communication A publication on the institution, a film on the project implementation (Association for Social Reintegration)
News and reports for the media on the progress of the project Kiss Árpád Elementary School
Polgárőr Egyesület (Civilian Police Association), Balassagyarmat
Specialist training Park caretaker practice scheme
Project name “Integrating the prison with the life of the local community” Skills development Museum visit
(location of the institution) (National Penal Institution of Állampuszta) Work with students and local citizens
Restitution service Palóc-liget reconstruction
Period 2007/2008 Weed removal
Cooperating partners Solt local government Rebuilding trails, steps, removing obstacles
Harta local government Repairing public benches
Office of Justice, Bács-Kiskun County Communication Flyers about Palóc-liget
Specialist training A course on growing and weaving willow Citizens’ forum for the citizens living in the neighbourhood
Skills development Music and cultural programmes for the purpose of identifying problems and for raising
Roma ethnic music and dance course a sense of responsibility
Restitution service Town improvement and maintenance work Establishing a peer helper group
Reconstruction of a local archaeological artefact (a boat) A documentary film on the project
Communication A documentary film on the project Official ceremony for opening the reconstructed park
News and reports for the media on the progress of the project News and reports for the media on the progress of the project

248 ////////////////////////////////// +++++++++++++++++++ 249

 Project name “Learn from your past – this is not your destiny” Project name “Reintegration and a new chance”
(location of the institution) (Sátoraljaújhely Penitentiary and Prison) (location of the institution) (Heves County Penal Institution)

Period 2006/2007 Period 2008/2009

Cooperating partners Sátoraljaújhely local government Cooperating partners Secondary School of Agriculture, Commerce and Catering
HM Hadtörténeti Intézet és Múzeum Városgondozás Eger Kft. (Town Maintenance Ltd.)
(Ministry of Defence Military History Institute and Museum) RÉV Szenvedélybeteg-segítő Szolgálat (RÉV Addict Helper Service)
Eötvös József Club TV Eger
Specialist training Practice scheme for those prisoners that have Specialist training Park caretaker training
attended computer training over the past few years Skills development Self-awareness and conflict resolution groups
Skills development Improving cooperation skills through work with civilian employees Restitution service Landscaping and flower planting
Restitution service Establishing a prison museum Removing waste and snow ploughing
Construction Reconstructing four playgrounds
IT tasks: Digitalising and editing Communication A publication and a documentary film on the project
Museology-related and other tasks News and reports for the media on the progress of the project
News and reports for the media on the progress of the project
Communication Welcoming visitors to the museum (operating the museum)

Project name “Heroes’ cemetery: crime prevention and the building of a valuable community”
(location of the institution) (Sátoraljaújhely Penitentiary and Prison)

Period 2008/2009
Cooperating partners Sátoraljaújhely local government References
Zempléni Hadtörténeti Egyesület (Zemplén Military History Club)
Sátoraljaújhelyi Városvédő és Szépítő Egyesület • Stern, V. (2005) Prisons and Their Communities: Testing a New Approach. A Restorative Prison Project 2000–2004. London:
(Sátoraljaújhely Town Embellishment and Protection Association) King’s College, International Centre for Prison Studies
Zemplén Térségi Katasztrófa és Polgári Védelmi Szövetség
(Zemplén Disaster Preparedness and Civil Protection Association) Documents
Eötvös József Club
Specialist training Park caretaker training • Parliamentary Resolution no. 115/2003 (X. 28.) on the National Strategy for Community Crime Prevention
Skills development Improving cooperation skills with the help of citizens and teachers • Állampuszta National Penal Institution (2007) “Complex model programmes for the implementation of restorative justice
Restitution service “Cemetery of Heroes” reconstruction principles.” Project Report (available only in Hungarian at [Link]
Reconstruction • Állampuszta National Penal Institution (2008) “Integrating the prison with the life of the local community.” Project Report
Weed removal (available only in Hungarian at [Link]
Repairing fallen/broken tombs • Balassagyarmat Penitentiary and Prison (2008) “Give me a chance to make it right.” Project Report (available only in
Replacing the ornamental plants Hungarian at [Link]
• Balassagyarmat Penitentiary and Prison (2009) “Joint effort for protecting the natural environment at the Palóc-liget.”
Communication Providing information on the cemetery’s significance in Project Report (available only in Hungarian at [Link]
local history and on the reconstruction efforts of the • Heves County Penal Institution (2009) “Reintegration and a new chance.” Project report (available only in Hungarian at
prisoners (temporary exhibition at the prison museum) [Link]
A documentary film on the project • Sátoraljaújhely Penitentiary and Prison (2007) “Learn from your past – this is not your destiny.” Project Report (available
Opening ceremony only in Hungarian at [Link]
News and reports for the media on the progress of the project • Sátoraljaújhely Penitentiary and Prison (2009) “Heroes’ cemetery: crime prevention and the building of a valuable
community.” Project Report (available only in Hungarian at [Link]

250 ////////////////////////////////// +++++++++++++++++++ 251

 4.7.1 Introduction
Vicki Smith
Oxfordshire Youth Offending Team (United Kingdom) “Justice” in the traditional punitive sense, does not always fulfill
Contact +++ [Link]@[Link] a victim’s view of what “justice” means. In the United Kingdom,
the criminal justice system is based on retributive justice and this
idea of working out the harm caused by the offender, and then
sentencing him/her the with appropriate level of “harm” back

4.7
does not always meet the needs of the victim, or the offender, like
restorative justice can. If one contrasts the terminology of criminal
justice: punishment, zero tolerance, criminal personality, with that
of restorative justice (RJ): empowerment, social justice, healing;

Restorative the difference is clear.

As a set of values, restorative justice offers great promise in

Practice for the regard to promoting healing and strengthening community bonds
by addressing the criminal harm done to victims and communities.

Social Re-integration The context of personal negotiation allows flexible adjustment of

agreements to the parties’ needs and capacities and a greater level

of Offenders in of creativity than court processes.

the United Kingdom

Table 10 Retributive Justice Restorative Justice
Main features of retributive
and restorative justice
Harm by offender
“Restorative Justice is a process Harm by offender balanced
balanced by
by making right
whereby parties with a stake in harm to offender
a specific offence collectively
Focus on responsibility and
resolve how to deal with the Focus on blame and guilt
problem-solving
aftermath of the offence and its
implications for the future.”
Victim/offender/community
Tony F. Marshall Action from state to
roles recognized: collective
offender; offender passive
response

Focus on offender;
Victims’ needs central
victim ignored

Punishment
Education
(along with rewards)
Extrinsic motivation – doing Intrinsic motivation –
something because other doing something because
people want them to they want to

Victim–offender Victim–offender
relationships ignored relationships central

Offender’s ties to Offender’s integration into

community weakened community increased

Response based on con-

Response based on
sequences of offender’s
offender’s past behaviour
behaviour

252 ////////////////////////////////// +++++++++++++++++++ 253

4.7.2 Restorative justice and young offenders be considered “spent” for the purposes of the Rehabilitation of
Offenders Act of 1974, so they do not have a criminal record.
The Crime and Disorder Act of 1998 set up the Youth Justice
Board to oversee work with young offenders and introduced Youth 4.7.3 Does it work?
Offending Teams (hereinafter YOT). Targets were set to ensure
victims participated in restorative processes in 25% of relevant [Link] Pros
cases and 85% of these victims were to be satisfied. There are a
number of different types of sentencing disposals that all allow for
a restorative element. The Youth Justice and Criminal Evidence
• Offenders are part of the process – part of the negotiation
(not directed).
Act of 1999 introduced a new primary sentencing disposal – the • Victims feel heard.
Referral Order – for 10–17-year-olds pleading guilty and convicted
for the first time by the courts. The disposal involves referring the
• Any unresolved difficulties between them can be settled – e.g.
how to behave should they meet one another in the street.
young offender to a Youth Offender Panel (hereinafter YOP). The • Deal with victims’ emotional as much as material needs.
work of YOPs is governed by the principles “underlying the concept
of restorative justice”: defined as “restoration, reintegration and
• Some victims experience satisfaction from influencing the
offender away from crime – transforming a negative experience
responsibility” (Home Office 1997). A Referral Order is compulsory into something positive.
in all cases where the juvenile is convicted for the first time and
pleads guilty. Courts may make referral orders for a minimum
• Offenders more affected by the experience than by formal
prosecution and punishment
of 3 and a maximum of 12 months depending on the seriousness
of the crime (as determined by the court) and must specify the
• Positive motivation to reform and a feeling that society is ready
to offer re-acceptance.
length for which any contract will have effect. YOPs consist of
one YOT member and (at least) two community panel members. [Link] Cons
The purpose of their inclusion is to engage local communities
in dealing with young offenders. Other people may be invited to
attend panel meetings (any participation is strictly voluntary).
• Short time scale for victim contact between sentence and first
panel.
Those who may attend include: • Resources for victim contact.
• Is it truly restorative if offender has no say in whether a victim
• the victim or a representative of the community at large; attends?
• a victim supporter; • Training for panel members is short (7 days) with 1 session on
• a supporter of the young person; RJ – is this adequate? (Practitioners have 4 days on RJ.)
• anyone else that the panel considers to be capable of having a
“good influence” on the offender;
• Panel members are not involved in the preparation of each party
for the panel – relying on our assessments/missing vital rapport
• signers and interpreters if required; for building opportunities.
• surrogate victims.
Participant Satisfaction: For both victims and offenders satisfaction
The aim of the initial panel is to devise a “contract” and, where is consistently high ranging from 73-90%. Fairness in mediation and
the victim chooses to attend, for them to meet and talk about the conferencing processes is also consistently high – ranging from 75-
offence with the offender. If no agreement can be reached or the 95% (Umbreit, Coates and Vos 2006).
offender refuses to sign the contract, he/she will be referred back Re-offending: The Restorative Justice Centre has reported on 41
to court for re-sentencing. The YOT is responsible for monitoring studies where RJ has been proven to reduce re-offending. One meta-
the contract and is expected to keep a record of the offender’s analysis looked at 14 studies with over 9.000 juveniles and indicated
compliance with the contract. that participation in VOM had lead to 26% reduction in re-offending.
The panel is expected to hold at least one interim meeting with the When the VOM youth did re-offend, they often committed less serious
offender to discuss progress – the first such review is recommended offences (Nugent, Williams and Umbreit 2003).
to be held after one month followed by at least one progress meeting Statistics from the Ministry of Defence on juvenile re-offending rates
for each three months of the contract. Additional panel meetings for 2006 cohort indicated that over a one year period re-offending
will be held if the offender wishes to vary the terms of the contract rates were 43% for Referral Orders compared to 55% for Fines; 62%
or to seek to revoke the order, or where the YOT feels that the for Action Plan Orders, 77% for Custody.
offender has breached the terms of the contract. Once the period
of the referral order is successfully completed the conviction will

254 ////////////////////////////////// +++++++++++++++++++ 255

 4.7.4 Prospects for the future References

Restorative justice continues to be at the heart of the youth justice • Home Office (1997) No More Excuses: A new approach to tackling youth crime
agenda, but there is still a long way to go to ensure that every team in England and Wales. London: Home Office
is working to their best ability to achieve the targets set out. Revised • Marshall, T. F. (1999) Restorative Justice: An Overview. London: Home Office
National Standards are due to be published and implemented during • Umbreit, M., R. B. Coates and B. Vos (2006) Victim offender mediation: An
2009, with an increased focus of YOT resources directed at the evolving evidence-based practice. In: D. Sullivan and L. Tifft (eds.)“Handbook
highest re-offending risk cases called the Scaled Approach. This of Restorative Justice” A Global Perspective. London: Routledge
will also require that YOTs have a range of restorative processes • Nugent, W. R., M. Williams and M. S. Umbreit (2004) Participation in victim-
for victim participation with the aim of putting right the harm which offender mediation and the prevalence of subsequent delinquent behavior:
victims and the community have experienced. A meta-analysis. Research on Social Work Practice 14: 408–416.
Guidance called the Key Elements of Effective Practice have
been revised and advise that practitioners prioritise face-to-face
restorative justice cases where there are direct, personal victims
and the victim and offender are both willing. In preparation for
restorative justice processes, victims and offenders should have
the opportunity to meet with a restorative justice worker and
restorative justice processes should be arranged in consultation
with victims, taking into account their convenience, their views
and their experiences. Satisfaction of victims should be regularly
monitored.

A case example

A young male had broken into his local youth club and caused lots
of damage including smashing up the television. The young person
was charged with Criminal Damage and was sentenced to a 6 month
Referral Order. An assessment was made of the young person and
it came to light that he had just received some bad news about a
family member and had gone out and got drunk with his friends.
Out of boredom and frustration, he had broken into the youth club
and caused the damage. In hindsight he felt very remorseful for his
behaviour and was ashamed that he had damaged his own local youth
club. He knew the Youth Worker well and she had always been kind
to him. He really wanted an opportunity to meet with her face to face
so he could explain and apologise and also offer to do something to
put things right. The Youth Worker was keen to be involved in the
process and attended his Youth Offender Panel. The young person
had the chance to explain, whilst hearing from the Youth Worker
about the impact of the crime for the youth club. An agreement was
made that the young person would work with the other youth club
members on a fundraising project to get a new television. Both the
young person and the youth club were happy with this outcome, and
the young person was able to put right the harm that he had caused.

In the United Kingdom, restorative justice is used in all types of

crime across the youth justice system, from pre court proceedings
and diversion from prosecution through to the more serious offences
for which there is a sentence of imprisonment.

256 ////////////////////////////////// +++++++++++++++++++ 257

 Magdolna Fábiánné Blaha, Vidia Negrea and Edit Velez release. Prison probation starts in penal institutions at least six months
Vidia Negrea: Community Service Foundation of Hungary (Hungary) before the scheduled date of release. In reformatories, it is begun at
Contact +++ csfhungary@[Link] least two months prior to the expected temporary release date.
Edit Velez: Probation Service - Office of Justice (Hungary) Work with those already released involves two types of case
Contact +++ veleze@[Link] management depending on whether or not the offender is under
probation supervision after release. It is obligatory to order
probation supervision if the offender is released temporarily from a

4.8
reformatory but it is only optional when an offender is released from
prison on parole. Probation supervision is imposed on the offender
by the court responsible for the enforcement of the sentence.
Those offenders who are not placed under probation supervision may
voluntarily request the help of probation officers to help them manage

The Use of Family their life after release. These cases are referred to as “after-care” cases.
The following persons may be provided after-care services:

Group Conferencing/ • persons released from prison on parole, if the prison judge has

Decision-making with •
not placed them under probation supervision;
persons released after serving their full prison term;

Prisoners in Prison • persons released from the reformatory permanently – the after-
care services are prepared and then provided by the after-care

Probation and During officer of the institution with the assistance of the probation officer.

After-care in Hungary 2004

1583
169
Figure 12
The number of pending after-care
2483 (+57%) cases in the given year and changes
2005
411 (+43%) therein from one year to the other
2187 (-12%) between 2004 and 2008
2006
307 (-25%)
2643 (+21%)
2007
268 (-13%)
3229 (+22%)
2008
4.8.1 The possibilities of the prison probation 257 (-4%)
services in using family group conferencing

500

1000

1500

2000

2500

3000

3500
For years now, the Hungarian Probation Service has considered
Adult Juvenile
it one of its main tasks to use the methods of restorative justice
more extensively in their work with offenders. These efforts were 1934 2005
supported by the fact that the probation service is now responsible

In penal institutions
1872

Adult
for the tasks related to mediation and as such mediation in 2318 2006
criminal cases has become an institutionalised form of restorative 2892 2007
533
justice. The Probation Service is working on the implementation
Juvenile 306 2008
of restorative justice principles in other types of cases also, and 265
is trying to ensure that the various techniques and procedures 255
become integral parts of the probation officers’ case management 183
After-care after release

315
Adult

methodology. To this end, various experimental projects were

316
launched. One of these was a project of which the purpose was to 337
Figure 13
include the method of family group conferencing/decision-making 368 Number of after-care
Juvenile

in the case management of probation officers. 1 cases between

As a target group for family group conferencing/decision-making, 3 2005 and 2008
we chose the inmates that were to be released from prison soon. The 1
probation officers start their work with the inmates already prior to their
500

1000

1500

2000

2500

3000

3500
258 ////////////////////////////////// +++++++++++++++++++ 259
 the methodology of probation services and after-care by adding new methods. We decided to focus
4837 With parole Adult
2004 164 on one specific group of those to be released soon: those with addiction issues. We wanted to put
172 more emphasis on family relationships and on securing family and small community resources for
With parole Juvenile
4985 reintegration purposes. Our goal was to bring up the issues of alcohol consumption and drug abuse,
2005 231
With temporary release to raise the offenders’ and their families’ awareness of these problems and to make the offenders
169 from reformatory willing to change and in the process to rely on their families as the number one source of support.
4754
2006 215 The method of family group conferencing/decision-making seemed to be an appropriate tool for this
130 Figure 14 purpose. In the pilot project, we trained probation officers for the use of the method and we tried to
4676 The number of release on parole see to what extent the method can be integrated with the after-care or the probation supervision of
2007 187 cases (from prison) and temporary the released. The programme entitled “For a Free Life in Harmony. The Involvement of the Family, the
108
release cases (from reformatories) Immediate Community and Professionals in the After-care of Offenders Struggling with Addictions”
4557
2008 100 with the offender placed under was implemented between September 2007 and April 2008.
146 probation supervision (2004–2008) Our partners and other participants in the programme included penal institutions, a foundation
providing trainings on the family group conferencing/decision-making method, and professionals/
500

1000

1500

2000

2500

3000

3500

4000

4500

5000
organisations specialised in the study and treatment of addictions.
Partners:

Apart from the official element, after-care is the closest in nature to social work from those activities • Budapest Penitentiary and Prison
carried out by probation officers that are collectively referred to as judicial social work. After-care
is the process of providing assistance to those requesting it. After-care focuses on the needs of the
• Juvenile Penal Institution of Tököl

offender and is developed jointly by the provider of the assistance and the offender. The difference Participants:
between after-care and probation supervision is that after-care has no function of control over the
offender because in after-care no behaviour rules are imposed on the offender. The relationship
between the person providing the assistance and the offender is a contractual one and therefore there
• Vidia Negrea, an expert of the family group conferencing/
decision-making method at Community Service Foundation of
are no criminal law consequences if the contract is breached. The length of the after-care relationship, Hungary (Közösségi Szolgáltatások Alapítványa);
and also its beginning and end dates are defined in accordance with the characteristics of the case.
Although case management methods differ depending on whether the relationship is mandatory
• Ákos Topolánszky and Dr. Edina Kósa from the National Drug
Prevention Institute (Nemzeti Drogmegelőzési Intézet);
or voluntary, the goal of the process is always the same: the ultimate goal is to prevent re-offending
and to help the offenders manage their lives after release.
• Borbála Paksi, researcher and presenter from
Viselkedéskutató Kft. (a behaviour research organisation);
The areas of intervention for probation officers are as follows: • Dr. József Zelenák from the Peer Helper Workshop
Foundation (Kortárs-segítő Műhely Alapítvány).
• family and community relationships;
• employment; 4.8.2 The implementation of family group
• housing; conferencing/decision-making in the project
• administrative tasks (such as the replacement of missing documents);
• studies/training; [Link] Reporting and preparation
• medical treatment; As a first step in the application of family group conferencing/decision-making, the probation officers
• developing skills and changing behaviour. working in penal institutions acting as case managers identify the cases in which it is possible to apply
the method. Prison officers may also inform the prison probation officer when they feel it is plausible
The most common methods used for identifying the problems: to organise such a conference in the case of a prisoner. The prison probation officer has an interview
with the prisoner and informs him/her of the method of family group conferencing/decision-making
• questionnaires; and identifies the prisoner’s motivation and needs. If the person to be released seems motivated and
• information provided to individuals or groups while still in prison; is willing to cooperate, the prison probation officer prepares a report for the facilitator indicating the
• management of individual cases; demand for a group conference to be organised. The next phase is the preparation of the conference.
• administration of social issues; The facilitator contacts the prisoner, records information of the person’s family and friends, and also of
• group activities aimed at skills development. any supporters or institutions the prisoner has had contact with. Then, the prisoner and the facilitator
start to discover problems that may arise after release. It is the prisoner soon to be released who
We launched a programme in 2007 with the purpose of extending the scope of these methods. The specifies together with the facilitator who he/she wants to be invited to the conference. The facilitator
programme was supported by the National Crime Prevention Board. The goal of the project was to calls the family members and friends or sees them personally and invites them to the conference. The
test restorative techniques on offenders already released or close to release and to supplement facilitator also gathers information about their needs and opinions. The case manager probation officer,

260 ////////////////////////////////// +++++++++++++++++++ 261

 the prisoner to be released, the family members, the friends and the It is a key result that communication in general was resumed between family members and that the
affected institutions (school, family welfare organisation etc.) may family members actually put in words what they needed. At the conference, the family members had an
also bring up problems that they want to be solved at the conference. opportunity to communicate with professional helpers directly. The personal meeting and the honest
and open atmosphere built trust between the participants and contributed to establishing a long-
[Link] The procedure of the family group term relationship with the helpers. It is an important advantage of the method that the professional
conferencing/decision-making helpers have a chance to share their views and expectations with the other professionals, and this
At the family group conference, the invitees discuss the problems also promotes cooperation between professionals.
identified in the preparatory phase. The conference is led by the
facilitator, a neutral party present at the conference. [Link] Experience
After the participants introduce themselves, information is We experienced that those families and prisoners had been the most cooperative where the family was
exchanged. First, the case manager probation officer shares with glad that the prisoner was coming home and where the family had not fallen completely apart. Where
the participants of the conference the reason for convening the the family had suffered for a long time due to the convict’s serious alcohol or drug problems, or his/her
group conference. The participants have a chance to respond to the lifestyle, it had been a relief for them when the convict was in prison. It was therefore particularly difficult to
probation officer’s ideas and may bring up additional problems. After motivate such families. Family group conferencing/decision-making is the most effective when it is applied
the information exchange phase is complete, the list of the problems before the convict’s release from prison, as both the offender and the family lose motivation after release.
to be solved is compiled, and the family has to be informed of the Those fighting addiction tend not to realise the gravity of their problem. They often refuse to admit that
resources and assistance available. The professional helpers can they have a problem and will not discuss it, and therefore they will not attend the family group conferencing/
draw attention to the consequences of unsolved problems, offer decision-making or they say that they do not believe that their addiction is a problem. Sometimes it
solutions, and they can inform the family of how they can provide happens that the family refuses to acknowledge the difficulty. In conclusion, family group conferencing/
assistance to them in the process. decision-making is not suitable for settling unresolved, complex conflicts with a long history, not even
When the participants have reached a consensus about what the after thorough preparation.
problems are, they can start developing the family plan. A part of
the family plan is the so-called “private time”, when the family must [Link] The project’s future
attempt to draft a plan on their own. The plan must be as specific We won funds through another call for proposals, and as a result we were given a chance to continue
as possible. It must list concrete deadlines, undertakings and the project. This second part of the project finished in May 2009. Although new elements were added
responsibilities. to the second part on the basis of the experience we had gained from the first project, we otherwise
After this, the family presents the plan to the other conference kept on practicing the method of family group conferencing/decision-making in the second phase also.
participants, and each participant must approve it. The plan is then One of the most important lessons we learnt was that the real challenge is to generate and sustain
put in writing and is signed by all participants. The implementation of motivation in the implementation phase. The members of the potential target group usually showed
the plan is monitored by the facilitator. At the conference, the family little interest. Moreover, some of those few who were curious about the possibility changed their minds
and the professional helpers may also schedule the next meeting later. Another problem that may arise is that some of the undertakings are not kept after release
to discuss the results. If the implementation of the plan is hindered, as the motivation of the released prisoner may change. We therefore added a new method to the
The project was carried out dur- or if there is a risk of failure, a new conference may be convened to case management “toolkit” of the probation officer: we decided to use the motivational interviewing
ing 2007 and 2008. 20 probation modify the plan. It is advisable to carry out a follow-up procedure six method with substance abusers while helping them. Another group of 51 probation officers and 2
officers attended the family group months or a year after the plan has been implemented. The follow- prison educators were given training on how to lead a motivational interviewing and family group
conferencing/decision-making up procedure’s goal is to check what has happened to the family conferencing/decision-making. The probation officers attending the training were offered a chance to
training and 12 of them actually since the introduction of the plan and whether the results have been discuss cases and receive supervisory help during the programme. An educational film was prepared
participated in conferences as fa- permanent. of the family group conferencing/decision-making which we would like to use for future trainings.
cilitators. 33 soon-to-be-released In the future, we would also like to follow certain past cases, and to evaluate the efficiency of the
offenders signed a statement of [Link] Results method, and its role in the reintegration of the released. However, it is safe to conclude that family
cooperation and agreed to attend The problems brought to the surface by the family and the group conferencing/decision-making already appears to be an efficient tool for probation officers.
the conference. 17 conferences professional helpers included deteriorating or destroyed family The majority of those probation officers who were involved in family group conferencing/decision-
were organised in the period relationships, family backgrounds burdened with conflicts, child making as case managers said that the method is excellent for identifying the family relationships
mentioned above. A total of 74 custody and housing issues, alcohol and substance abuse, pending and friends of the offender, that is, those resources that the probation officer will be able to use
family members and friends and criminal cases, lack of motivation and indifference. In response while managing the case. The family group conferencing/decision-making method helps discover
15 professional helpers attended to these problems, the family plans usually addressed housing the dynamics and the structure of the family, and this is useful information even if no family plan is
the 17 conferences altogether. 21 problems, debts, financial issues, job search, vocational training, adopted or if it is not implemented.
persons undertook specific obliga- intimate relationships, relationships with parents and children, and
tions at the conferences. issues related to how leisure time should be spent.

262 ////////////////////////////////// +++++++++++++++++++ 263

5. Dr. Martin Wright
De Montfort University Leicester (United Kingdom)

General Perspective Contact +++ martinw@[Link]

5.1
Why Restorative
Justice Needs
Research

5.1.1 Introduction

Before we consider how restorative justice tries to make the

criminal justice system work better, we can take a step back to
consider how restorative practices can create a society in which
people are less likely to harm each other; but when it happens, we
would help the victim, and look for ways to prevent further trouble.

5.1.2 How to reduce the crimes and

other harms which people inflict on each other?

Hungary has followed this logic, by introducing the National Strategy

for Community Crime Prevention in 2003. This includes non-violent
conflict resolution, enhancing small-community integration and
control and other social measures (Lévay 2007–2008). Criminologists
have suggested many ways of reducing the pressures towards
crime. Most of them are part of social policy, and have little to do
with criminal justice policy.
A comprehensive policy for reducing the amount of harm, which
citizens cause to each other, would ideally start in schools, and the
Zöld Kakas Líceum (a Hungarian high school, see article 2.5 in this
publication) has shown how this can be done even with students who
had not been successful in other schools. Among other things they

264 ////////////////////////////////// +++++++++++++++++++ 265

 were encouraged to make their own rules; but soon they found that it; and imposing a punishment (or sometimes another sanction). This gives the accused an incentive
they had so many rules that many of them were broken. They therefore to deny or minimize what he or she has done. Although restorative processes are only used when
concentrated on the essential rules, and at the end of the year they the accused accepts responsibility, it is claimed that they make offenders more likely to do so. They
summed up their achievement: “We’ve learned punctuality. We’ve ask different questions:
learned to respect our fellows. We’ve learned to cooperate. We’ve
learned to be serious in serious situations.” (Kerényi 2006) • What happened?
Schools in Hull, in northern England, have adopted restorative • Who was affected?
practices, with striking results for improving behaviour and the • What is needed to put it right?
school’s performance generally; there are plans to give restorative • Who should do it?
training to everyone in the city who works with children, and to make • How can members of the community be involved?
Hull into a “restorative city” (IIRP 2008; Mirsky, n.d.).
Another version of this method is “discipline that restores”
• What would make it less likely to happen again?

(hereinafter DTR). The principle is that the teacher remains in charge The task of fundamental research is to ask whether these are good questions; practical research
of the framework of the student–teacher relationship, but respects asks whether they were asked in the right way and led to the repair of the harm.
the student by offering choices at every stage. After analysing how
attempts to control through punishment can make matters worse, 5.1.4 How well are we doing?
Roxanne Claassen, the main author, invites each new class at the
beginning of the school year to agree on their own ground rules and Just as, when we were considering how to respond to crime, we began by considering how to prevent
to set their own targets for the year. A “flowchart” of increasingly it, when we now consider the response itself, we begin by considering how the response is designed.
serious but non-punitive interventions is explained. When a conflict So, we have to explore what the qualities of a good justice system are. We do not go straight to the
arises, the first step is a “constructive reminder”. The next time, the outcome; we look first at the structure and the process. In this context, research could be compared
teacher will “actively listen”, and talk to the student. If there is a further to an audit.
problem, the student can choose between four options for dealing
with it (I impose on you, we go to an arbitrator, we go to a mediator,64 [Link] Structure
we agree between ourselves); usually they choose the third or fourth Researchers, then, should be involved in the design of the system (in German this is called
option. For uncooperative students there may be a spell in a “thinkery”, Begleitforschung, accompanying research), although this is not always possible for political reasons:
a place where another teacher helps the student to think through what it can be difficult to explain to senior lawyers and politicians the relationship of restorative justice to
happened, who was affected, and plan for working together. If the criminal justice. Mediation in criminal cases has only recently been introduced in Hungary (Act CXXIII
problem is still not resolved, a “family conference” is held. Only then, of 2006, quoted by Lévay 2007–8), so there is still time to influence the direction in which it develops.
if necessary, will the school authority structure be used (Claassen and Researchers may begin by looking at the preventive policies mentioned above, and how widely restorative
Claassen 2008). Methods like these have the potential to teach children practices are used in schools and communities. As regards criminal cases, if it is accepted that restorative
respect for each other, animals, and the environment. justice should include participation of the community, as supporters of victims and offenders, as volunteer
Research in schools is also reported by Sherman and Strang (2007: mediators, and managers of NGOs, researchers with their knowledge of the theory and practice in other
53–4) in a wide-ranging review of published research, reporting countries can advise on legislation that enables this to happen; evaluate how well it is working, both
reduction in anti-social behaviour and increased feelings of safety numerically and qualitatively; and recommend changes later if necessary. They can assess whether there
among students, though not all the findings were statistically is full use of volunteers, and whether these represent all groups of society, including ethnic minorities:
significant. Belinda Hopkins (2009: 187-8) reports research showing for example, how many Muslim mediators are there in the United Kingdom, how many Roma mediators
similar benefits in a school for residential care of young people in in Hungary? Some programmes have used police officers as mediators; research has found that some
Hertfordshire, England. do it very well, and the experience can broaden the outlook of the officers, but there are problems such
The next step towards a restorative society is to create a network as under-preparation, coerced participation and lapses in neutrality, “particularly in the case of the
of community mediation centres, as in Finland (see article 2.2 in this more experienced facilitators” (Hoyle et al. 2002: 66).
publication), Norway, and parts of the United Kingdom. They can If we accept the principle of minimum state intervention (“as much state as necessary, but as
deal with civil disputes and those which can be privately prosecuted little state as possible”), researchers should look at the extent to which cases which do not need
in continental legal systems; they could also extend their work to the full power of the state are “diverted” (kept out of the system); for example, do prosecutors
include victim offender mediation. refer cases to be assessed for mediation rather than prosecution? Can people go straight to
mediation, for civil or privately prosecutable cases? It is helpful if the legislation is designed so as
5.1.3 How to respond when crimes are committed? to make this possible.
The response to crime is a matter of public concern, and researchers would want to see what
Terms such as ”mediator” and ”facilitator”
64 The traditional justice system, as we know, is based on confirming arrangements are made for public accountability. Is an annual report published? Are some resources
will be used interchangeably in this paper. that a crime was committed; that the accused is guilty of committing of staff time allocated to explaining the restorative concept to the public and to professionals?

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 [Link] Process lawyers to advise their clients to plead “not guilty” and say nothing, in
Then researchers can see whether the process is being operated the hope that in some way, perhaps a procedural technicality, they can
according to restorative principles. This is because in restorative escape punishment. The accused is of course entitled to legal advice,
justice the process is important, as well as the outcome. So under Article 6 of the European Convention on Human Rights (Right to a
researchers will look at how well it was carried out, and whether fair trial), but the lawyer should be aware of restorative principles. When
it involved victims, offenders and members of the community? Since the outcome is a restorative one, the accused has an incentive to admit
restorative justice is concerned about victims as well as offenders, his or her involvement in causing harm, and “wipe the slate clean”. It
they will also ask if support is available for victims whose offenders will be interesting to see if researchers can find a way to explore this
are not caught. In Hungary, for example, this would mean examining hypothesis. It is supported by the experience at Hollow Water, Manitoba,
the operation of the Act CXXXV of 2005 on Victim Support and State Canada where considerable sexual abuse was admitted, in two cases
Compensation (Lévay 2007: 8), but many victims need emotional without a victim even coming forward. Of 107 cases, only 2 were found
support as much as, or more than, compensation, so this should to have re-offended (Sawatsky 2009, chapter 4: 99). Further evidence
also be part of a restorative system. is provided by research in England, where the use of restorative justice
Participation by victims will never reach 100%, since it is a voluntary doubled (or more) the offences brought to justice as diversion from
process, but if it is well explained and becomes well known, the level criminal justice. In an experiment in Brooklyn, a crime was twice as likely
should rise. There is a presumption that the take-up will be higher if to be brought to justice where restorative justice was used, as compared
the process is explained to victims (and offenders) by mediators, who with the court process (Sherman and Strang 2007: 4 and 82–3).
understand the process well. The way in which they are contacted Any good system needs some form of follow-up and feedback,
also makes a difference: by letter, phone or visit. Mediators may to assess its performance. Research is an investigation in depth,
also discuss with victims whether they would prefer one-to-one which can usually only be carried out every few years; monitoring is
mediation, or indirect mediation, or a “conference”. One reason for routine record-keeping, including asking the participants how well
low attendance can be that victims are not consulted about the time they thought the process was conducted. In both cases the results
when the meeting will be held. Research in the early days of youth should be given to the mediators, and included in the training of
offender panels in England found that only 22% of victims attended future mediators. It may be possible to establish a practice review
meetings (Crawford and Newburn 2003: 185), although (partly as a group, including practitioners, administrators and researchers,
result of this research) efforts are being made to improve this. to consider issues that arise in day-to-day practice and consider
Research into the process will include questions such as: whether changes are needed. These may be local arrangements,
or may be passed to the national organization which supervises
• percentage of victims contacted; restorative work. It is suggested by Sherman and Strang that this
• percentage of victims agreeing to mediation; organization should be an official “Restorative Justice Board” (2007:
• percentage of cases enabling victim and offender to meet in a
mediation/conference.
88), but there is also a case for an organization that is independent
of government and can even press the government to make changes
when necessary.
There has been criticism of the conferencing process, especially Researchers will also want to look at the training of mediators,
for young offenders, on the grounds that they may be intimidated by both for their skills in listening and leading the meeting, but also to
“a roomful of adults”. With this in mind the English legislation allows ensure that they learn to recognise their own prejudices and treat
a young person to be accompanied by an adult supporter (invited by everyone with respect, including ethnic minorities. They will also want
the young person with the panel’s agreement) and anyone else whom to consider whether arrangements are in place to make sure that the
the panel considers to be capable of having a good influence on the process is conducted fairly. In addition to the basic skills, such as active
offender, in addition to parents or guardians. The early research listening, and condemning the act but not the person, mediators need
found that only in 15% of panels was the young person accompanied to learn what to avoid, such as dominating the discussion and imposing
by more than one adult (Crawford and Newburn 2003: 122). opinions. There are also more complex issues: has the facilitator used
The supporters need not be lawyers – some would say that lawyers subtle techniques to persuade the victim and offender to follow a
should not take part in the mediation, because the restorative meeting is “script” of forgiving and apologising, which may not be what they really
not a trial. It does not take place unless the accused has already accepted want (Zernova 2007)? Or is that the correct thing for the facilitator to
some responsibility for the harm caused. Advocates of restorative justice do, in the interests of individual well-being and social harmony?
argue that the prospect of a restorative process, rather than a punitive Even a restorative process, however, can be conducted well or
one, encourages the admission of guilt; the presumption of innocence badly; in addition to the routine monitoring, researchers will want
until guilt is proven “means no accountability, and it sets the conditions to discover whether there is a grievance procedure (a restorative
for re-offending” (Sawatsky 2009: 120). It is common for defending one, of course!), and whether the principles of restorative justice

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 are correctly explained to the participants – otherwise they may Qualitative research, despite its necessarily smaller samples, can
mistake bad practice for normal practice, and not realize that they complement the findings of RCTs. Action research or “accompanying
have grounds for complaint. research” has already been mentioned, and was used by Carolyn
Research by Lawrence Sherman and Heather Strang (2007: 44–5) Hoyle and colleagues (2002). It does not merely tell us about
examines questions of this kind, and finds that restorative justice restorative justice in general, but indicates whether this restorative
in general, and the programmes which they studied in particular, programme is being well conducted; and it tells us not after the
comply with legal principles and those of the United Nations (2006: project but during it, and can (as these researchers did) propose
annex II). Other standards which researchers may want to use as a improvements while it is still running. The relatively small numbers
basis for assessment include those of the Council of Europe (1999) of such studies may be criticized; but research such as that of Hoyle
and CEPEJ (European Commission for the Efficiency of Justice and colleagues, and Zernova (2007), can at least draw attention to
2007). issues, suggesting that other projects should be on the look-out
Finally, a detail which may be unexpected: researchers may want for them. If they turn out to be widespread, changes may need to be
to ask whether refreshments are offered to the participants after made in the practice – and even the theory – of restorative justice.
mediation. In some models of mediation and conferencing, this is Secondly, there can be undesirable side-effects of basing policy
normal practice; it may for example fill the time while an agreement on statistics. This has been a particular problem in Britain. People
is being written out, and sharing food and drink is a profound way do things to make the statistics look better, which do not necessarily
of symbolizing reconciliation (Costello et al. 2009: 36; Hopkins make people feel better. One example among many: the efficiency
2009: 139). of the police is judged by the number of arrests they make, so they
arrest people who are easy to arrest, or people for whom a warning
[Link] Outcome would be quite sufficient. Some more serious offenders, whose
Having looked at the structure and the process, let us now turn to cases are more difficult to investigate, remain free; others are not
the outcome. At this point the research becomes more numerical. referred to mediation, although their cases might be suitable. There
But with these numerical data, and the ones I mentioned earlier, it are other examples of the harmful effects of statistical targets, from
is important to remember the dangers. Firstly, numerical research, the National Health Service and schools.
and randomized controlled trials (hereinafter RCTs) in particular, are A question that will naturally be asked is the percentage of
not necessarily the best method for all purposes. They need large agreements fulfilled fully or partly. An interesting finding is that
numbers in order to achieve statistical significance, and therefore an agreement to make reparation may be at least as effective as
it is often not practicable to explore in depth the quality of the enforcement by the threat of punishment (Sherman and Strang 2007:
services being studied. Was it good restorative justice, indeed was 58–9). However, in those cases where reparation is not completed,
it restorative at all? With smaller numbers, statistically conclusive some form of enforcement will be necessary, and researchers will
findings are less likely to be achieved, leading to disappointment all want to see whether it is carried out in a restorative way, and how
round. There is a tendency to focus on a primary outcome of interest effective it is.
to the funder, which is often the reconviction rate. Aidan Wilcox and
other researchers (2005) have pointed to several problems. Drop- [Link] Reparation
out rates can be as high as 33 to 68%, and there is then a danger that Reparation can take different forms. Some victims want no more
the remaining cases are no longer representative. RCTs originated than an apology, or ask that the offender should do some community
in medical research, but in social research the important element work; for others the priority is that he or she should not offend
of double-blind is not possible. again, and should undertake training, education, therapy, anger
Offenders may have received other treatments in addition to management, or other programmes that will help to avoid re-
the victim–offender meeting, so the latter may not be responsible offending. Therefore researchers should ask whether there were
for the “success”. (Conversely, Wilcox and colleagues might have adequate opportunities for community work, perhaps offered by
added, if additional measures which the offender needs are not NGOs, and appropriate rehabilitative programmes. If these are
provided, this lack rather than the restorative justice process not available, and there is a high rate of re-offending, it cannot
may be responsible if he or she re-offends.) As for victims, their be said that restorative justice has failed – it is the supporting
satisfaction may be simply because someone has listened to them, services that were not provided. In one English prison mediation
rather than resulting from the restorative meeting itself (Wilcox was carried out between a burglar and three young women who
et al. 2005). In one case, when the random allocation method was shared a flat which he had broken into. The session was observed
used, satisfaction was lowest among the victims who were promised by a former Chief Inspector of Prisons, who was impressed. It
restorative justice but were then allocated to the control group and went well, they expressed their feelings, and the offender told
consequently did not receive it (Sherman and Strang 2007: 63–4). them how and why he became a burglar. He had had a typically

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 disadvantaged upbringing, had missed school and had not learnt costs in one group of programmes, although in the other two the
to read and write, he had other problems including drug addiction. difference was not statistically significant.
He agreed to attend programmes including literacy classes and
addiction therapy. Afterwards the former Chief Inspector spoke to 5.1.5 Conclusions
the prison governor, and asked if those programmes were available
in the prison; he was shocked to hear that none of them were (Lord This article began by referring to the aim of reducing crime, for
Ramsbotham, personal communication). If that young man fails to which social policy is more important than criminal policy. But can
keep his agreements, who is responsible? restorative justice contribute to it? When many offenders tell their
Researchers may also ask whether young people who have made stories, there are bound to be indications of societal pressures that
reparation by community service receive thanks and perhaps a lead to crime. This is not to deny that individuals have choices about
certificate; this symbolizes the fact that they have not been punished resisting those pressures; but even a healthy plant cannot grow well
as outcasts, but have made a contribution to the community and in poor soil. New Zealand, once again, has shown the way: some
are part of it. Even better, they may work alongside volunteers who facilitators, when they notice clusters of cases from a particular
are not offenders, and a plaque can be installed giving them credit geographic location or school, gather a number of people from social
for their work. Programmes in prisons, for example in the United services, police and so on to consider whether there can be a plan to
Kingdom and Hungary (see articles 4.5–4.6 in this publication), show tackle the pressures that affect young people (MacRae and Zehr 2004:
ways of developing the good qualities of offenders. The current 56-64). Similarly in South Africa, the Zwelethemba programme links
practice in England of making offenders work in public places, “peace-making” with “peace-building”, and includes a system for
stigmatized by wearing distinctive coloured jackets, is completely transferring funds to it (Froestad and Shearing 2007; Sawatsky 2009:
contrary to this principle. 59). This does not address major problems, including inadequate
A common criterion is “victim satisfaction”, which in almost all funding of essential services such as education, or inequalities in
research is found to be very high and significantly higher than courts society, but it is a step in the right direction. The involvement of
when this comparison is made. Victims who experience restorative volunteers in the process helps to spread public awareness of social
justice are less likely to suffer post-traumatic stress, and return needs. If similar schemes can be introduced in other places, they
to work sooner. But research has its pitfalls: in one study there will need to be researched to assess their effects.
were so many restrictions on cases that could be included in the I have tried to go back to first principles, and have suggested that
programme that the numbers were insufficient (Sherman and we should begin by thinking about prevention. If young people learn
Strang 2007: 83). to resolve their differences and misunderstandings in a respectful
When people, especially politicians, ask whether restorative way, we shall be building a society in which people respect each
justice “works”, they commonly mean “Does it reduce other’s humanity. Research on such programmes can show how
reconvictions?” Sherman and Strang found (2007: 68–71, 88) well it is working and how it can be improved, and can inform others
that reconvictions were often reduced, not always significantly, so that the pioneering examples can be followed. Similarly, the
but were almost never increased. In the controversial field extent and quality of community mediation can be assessed.
of violence within families, they cite Canadian research Some of these proposals are based on a particular view of
finding a reduction by a half in emergency visits to the home, restorative justice, believing in the value of involving members of the
compared with an increase of 50% in comparison families community, and where possible resolving conflicts by agreement,
(citing Pennell and Burford 2000). without the imposition of authority.
A study of three groups of programmes in different parts of Of course some people will still harm each other, and the
England looked at the question of reconvictions. Results varied, restorative movement proposes that we should respond with a
but in total offenders who participated in restorative justice were different set of questions, based on putting right the harm and
reconvicted statistically significantly fewer times than those in the looking for ways to avoid more of it happening in the future. This
control group. It may be relevant that the programme which did best response needs research into its structure, its process and its
was the one (in Northumbria) which used conferencing rather than outcome, and I have suggested that researchers should be
one-to-one mediation (Shapland et al. 2008: 66–7). involved at the design stage, to assist the legislators (and to avoid
Restorative justice can save costs in courts, in prisons, and in excessively detailed legislation). I suggested some of the points
health care for victims, according to Sherman and Strang (2007: which researchers could consider.
86). They could have added that at least some of the savings could May I end by stressing three particular points which researchers
be used to provide more restorative justice and other non-custodial should look for.
measures, if there were a simple method of transferring the funds.
The research by Shapland et al. (2008: 67) found significantly lower

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 1. When offenders agree to make reparation, are arrangements • Shapland, J. et al. (2008) Does restorative justice affect reconviction? The
in place to enable them to do so? fourth report from the evaluation of three schemes. Ministry of Justice

2. Are the circumstances regularly discussed, to see how pressures

Research Series, vol. 10, no. 8 ([Link]/publications/research.
htm)
towards crime can be reduced? • Sherman, L. W. and H. Strang (2007) Restorative justice: the evidence.

3. Can a system be introduced by which money saved on prisons

London: Smith Institute ([Link])
• Wilcox, A., C. Hoyle and R. Young (2005) Are randomised controlled trials
could be transferred to non-custodial ways of dealing with really the “gold standard” in restorative justice research? British Journal
offenders? of Community Justice, vol. 3, no. 2: 39–49.
• Zernova, M. (2007) Restorative justice: ideals and realities. Aldershot: Ashgate
If research is focused on these questions it will help us to
achieve more effective restorative justice and to build a more Documents
restorative society.
• Council of Europe, European Commission for the Efficiency of Justice,
References CEPEJ(2007)13 (7 December 2007) Guidelines for a better implementation
of the existing recommendation concerning mediation in penal matters
• Claassen, R. and R. Claassen (2008) Discipline that restores: strategies • Council of Europe, Committee of Ministers, Recommendation no. R(99)19
to create respect, cooperation, and responsibility in the classroom. South (15 September 1999) concerning mediation in penal matters
Carolina: BookSurge Publishing ([Link])
• Costello, B., J. Wachtel and T. Wachtel (2009) Restorative practices
handbook: for teachers, disciplinarians and administrators. Bethlehem
(PA): International Institute for Restorative Practices
• Crawford, A. and T. Newburn (2003) Youth offending and restorative justice:
implementing reform in youth justice. Cullompton (UK): Willan Publishing
• Froestad, J. and C. Shearing (2007) Beyond restorative justice – Zwelethemba,
a future-based model using local capacity conflict resolution. In: R. Mackay
et al. (eds.) Images of restorative justice theory. Frankfurt a. M.: Verlag für
Polizeiwissenschaft
• Hopkins, B. (2009) Just schools: restorative justice approaches to working
with children in public care. London: Jessica Kingsley
• Hoyle, C., R. Young and R. Hill (2002) Proceed with caution: an evaluation
of the Thames Valley Police initiative in restorative cautioning. York: York
Publishing Services
• IIRP (International Institute for Restorative Practices) – Hull Centre for
Restorative Practices (2008) The City of Hull: Riverside Project.
• Kerényi, M. (2006) About the Jumpstart Programme of the Zöld Kakas
Líceum. Paper from “Improving Citizenship and Restoring Community” 10th
International Institute for Restorative Practices World Conference, Budapest
([Link]/library/hu07/hu07_Kerenyi.html)
• Lévay, M. (2007–2008) Development of criminal policy in Hungary during the
first decade of the 21st century. Archiwum Kryminologii, no. XXIX–XXX: 543–554.
• MacRae, A. and H. Zehr (2004) The little book of family group conferences,
New Zealand style. Intercourse (PA): Good Books
• Mirsky, L. (n.d.) Hull, UK: toward a restorative city. ([Link].
org/library/[Link]#top)
• Pennell, J. and G. Burford (2000) Family group decision making: protecting
women and children. Child Welfare, vol. 79, no. 2 (March/April)
• Sawatsky, J. (2009) The ethic of traditional communities and the spirit of
healing justice: studies from Hollow Water, the Iona Community and Plum
Village. London: Jessica Kingsley

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 János Wagner the Criminal Code (hereinafter CC)65 and the Criminal Procedure Code
Partners Hungary Foundation (Hungary) (hereinafter CPC)66 while the more practical side of the procedure
Contact +++ wagner@[Link] is regulated in the Act on Criminal Mediation (hereinafter ACM).67
Under the relevant regulations, mediation is available for both adult
and juvenile offenders if the crime is a crime against the person, a
traffic offence or a crime against property not punishable by more than
five years of imprisonment. Mediation is only available if the parties

5.2
voluntarily agree to participate, if the crime has a victim and if the
offender pleads guilty. The offender is not eligible for mediation if he/
she is a habitual offender committing a similar crime for the second
time or he/she is a third-time offender, he/she is serving a term of
imprisonment or is under probation at the time of the crime. Mediation

The Hungarian is excluded by law if the crime has resulted in death. The prosecutor
or the court of first instance makes a decision on whether mediation

Experience of should be used in the given procedure. The mediation procedure is

carried out by the probation officers of the Office of Justice.

Introducing The method of mediation generated interest within the profession,

particularly on the part of mediators, and Office of Justice officials.

Mediation in Those interested considered the emergence of mediation in criminal

justice such a paradigm shift that could fundamentally change

Criminal Procedures the attitudes to punishment and compensation, the relationship

between these, and also the role and the place of the victim and
the offender in the criminal procedure.
The Office of Justice had limited time and financial resources to
prepare for the use of mediation. In 2006, the office, in cooperation
with Partners Hungary Foundation,68 completed the mediation training
of sixty probation officers through a call-for-proposals procedure.
The office launched a mentor programme to provide professional
support and assistance to those mediators who started their work on
1 January 2007.
At that time, it was uncertain how often prosecutors and judges
would use mediation. At first, the Ministry of Justice and Law
5.2.1 The introduction of the mediation procedure in Hungary Enforcement estimated that the number of mediation cases would
be around 500 in the first year of application. However, the actual
65
Sections 36, 107 and 342 of Act IV of 1978
From 1 January 2007, mediation was introduced in criminal figures and the success rate exceeded all expectations. In 2007 on the Criminal Code (CC).
procedures, and as a result, since then, victims and offenders alone, mediation was initiated in 2.451 cases. This meant a workload
66
Sections 221/A, 224, 114/A, 215, 272, 459
have had the possibility to resolve their issues through mediation for probation officers that was larger than expected, especially and 485/C of Act XIX of 1998 on the Criminal
(see also article 3.4 in this publication). Mediation is a method since probation officers carry out their mediation-related tasks in Procedure Code (CPC).
of alternative conflict resolution in which the parties at dispute addition to their original tasks. That is partly why attorneys have also 67
Act CXXIII of 2006 on Criminal Mediation
settle their conflict with the assistance of an external, neutral third been allowed to act as mediators in criminal cases since 1 January (ACM).
party. The settlement is an agreement providing a solution that is 2008. For this, they have to apply to the Office of Justice, and if the 68
Partners Hungary Foundation was
acceptable for both parties. Mediation has become widely used in application is accepted, then a contract is concluded with them.69 established in 1994. The main goal of the
organization was to prevent and manage
various fields over the past few decades. In Hungary, mediation was conflicts stemming from the democratisation
applied in minority, education, family and labour conflicts before 5.2.2 Research summarising the experience of the first year process of the country. Its original objective
was to use, hold trainings on and popularise
2007. Also, there have been attempts in the past to put the method such methods of cooperation and conflict
into practice in business life and in the healthcare system. In the first and almost full year of application, a lot of experience was resolution that had been unknown in
Hungary before then. The Foundation is a
Mediation has been used in the criminal justice system since collected about mediation in practice and a number of questions arose member of Partners for Democratic Change
1 January 2007. As a result, the previous, offender-centred and that needed to be answered for a more efficient application of the International, an international network.
retributive approach has changed and the victims’ needs have gained programme in the future. In the spring of 2008, the Ministry of Justice and 69
Section 3 (1) of the ACM allows attorneys to
more focus. Criminal mediation is made possible by a set of rules in Law Enforcement committed Partners Hungary Foundation to complete act as mediators in criminal cases.

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 a research project for the collection and the analysis of the experience did not focus on the wider use of the principles of restorative justice.
gained so far in Hungary regarding the application of criminal mediation. During the research, we processed the data available about the
Our research was based on the presumption that mediation is in the mediation procedures conducted in 2007 and we carried out an attitude
interest of the parties to the criminal procedure, and we also presumed analysis of judges and prosecutors. In the attitude survey, we wanted to
that mediation is an effective new tool of criminal justice from an find out what the opinion of judges and prosecutors is about mediation,
economic and social aspect. Before the research, our expectations what they know about the method and what information they have
were that the parties would use the opportunity when a mediation available. For the attitude analysis, we chose three counties with
procedure was offered, and the rejection rate would be low as we felt high and three counties with low mediation rates. We also included
that mediation is in the best interest of both parties. We therefore did Budapest in the sample. With the assistance of Medián Közvélemény-
not expect a significantly higher proportion of rejection among victims. és Piackutató Intézet (a public poll and market research institute), we
We assumed that the agreements made in the procedure would be interviewed 202 prosecutors and 99 judges in six counties and in the
acceptable for both parties, meaning that all affected parties would capital with the help of questionnaires. All judges and prosecutors
consider the agreement a satisfactory conclusion of the case, and were selected from town courts and town prosecutor’s offices.
therefore that the affected parties would be pleased with both the
outcome and the procedure itself. We also presumed that creative 5.2.3 Basic data from the first year
solutions would be reached that take the actual needs of the parties
(as discovered in the procedure) into consideration. We presumed According to the Office of Justice’s statistics, the Office received 2.451 referrals by
that the solutions would be much more than merely a punishment or the end of 2007. 1.529 of these were made by the prosecutors and 922 by courts
compensation and as such they would increase the satisfaction of the (62.4% and 37.6%, respectively). 85% of the mediation procedures resulted in
participants. In a traditional criminal procedure, no such solutions are an agreement between the parties. There are 298 potential organisations in
available, that is, the court cannot include such solutions in the sentence. Hungary that can refer a case for mediation. 214 (72%) of these actually took the
Despite the relatively higher case number that definitely exceeded opportunity. From the 50 county-level organisations with the power to refer cases
the initial expectations, we felt that mediation could be applied more for mediation, 18 ordered mediation, while out of the 248 local organisations 196
extensively. In connection with this, it was our presumption that the took the opportunity to refer cases for mediation.
prosecutors and the judges would refer minor and simple cases to From the 214 organisations that ordered mediation, 156 (73%) referred less
mediation and that they would not use mediation regarding all crimes than 10 cases for mediation. This means that the potential users of the method
in which mediation would be possible by law. We thought it probable hardly took advantage of this alternative way of resolving criminal cases. There
that restitution/compensation would be considered equivalent to the are 47 potential users (22%) who referred 10 to 50 cases for mediation and 11
payment of (full) damages, and that the other statutory forms of active prosecutor’s offices/courts (5%) who referred over 50 cases for mediation.
repentance would not be used.
The statistics showed that there were vast differences between Type of crime % number
counties in the frequency of applying mediation. We thought that this Crimes against property 56.1 1.375
was due to the judges’ and prosecutors’ attitudes to mediation, and we
also felt that the types and numbers of mediated cases depended on the Traffic-related crimes 27.9 685
amount and quality of information courts and prosecutors had available. Crimes against the person 15.9 389
In the research, we examined the data we had available and the Table 11
Unknown 0.1 2
experience collected during the first year of criminal mediation in Cases referred to
Hungary to see whether the hypotheses specified above were correct. Total 100 2.451 mediation by type of crime
We wanted to find out what characteristics the mediated cases shared,
what the probability of reaching an agreement was, what happened after The results are quite mixed if we calculate the ratio of mediation
the agreements had been made and how they were used in the criminal procedures and the total number of indictments for each county (see
procedure. We were also curious about the proportion of cases in which Figure 15). The 2.451 cases referred for mediation represented 1.28% of
mediation was initiated by a participant but refused by the authorities all indictments. Interestingly, there are significant differences between
and we wanted to collect information about the reasons of refusal. The regions (and counties): the maximum ratio is 4.52% in Baranya county
attitudes of the authorities were also examined in the research. We wanted while the lowest is 0.5% in Nógrád county. This means that a case in
to find out about the judges’ and the prosecutors’ views on mediation. Baranya is more than 9 times more likely to go to mediation than a
The subject matter of the research was to identify the areas where case in Nógrád. These diverse data prompted the main questions of our
it was possible to apply mediation as a tool of restorative justice, attitude survey: what are the causes of these differences? Is there an
especially with regard to the possibilities under the statutory rules explanation for the considerable differences between the counties’ data?
and the legal practice developed since 1 January 2007. The research

278 ////////////////////////////////// +++++++++++++++++++ 279

 Baranya 7250 When the 8 objectives listed below were evaluated one by one by
Bács-Kiskun 9425 the participants, the differences between the weights given to each
Békés 4903
objective were not massive but they were definitely quantifiable.
Borsod-Abaúj-Zemplén 13084
Budapest 47785 The professionals participating in the survey considered
Csongrád 8831 prevention and restitution the most important objectives of criminal
Fejér 6491 justice and they saw retribution the least vital objective of the
Győr-Moson-Sopron 6518 possible objectives. There were no significant differences between
Hajdú-Bihar 18734
the institutions that refer a higher proportion of cases for mediation
Heves 4516
Jász-Nagykun-Szolnok 6788 and the institutions that have lower referral rates. Consequently,
Komárom-Esztergom 4981 the criminal philosophy behind mediation is accepted by a large
Nógrád 5433 majority of professionals everywhere (see Figure 16).
Pest megye 13591
Somogy 4043
Szabolcs-Szatmár-Bereg 10971
Tolna 3248 Figure 15 Prevention 92
Vas 4770 The share of cases referred The protection of society and deterrence 90
Veszprém 6242 to mediation in all indictments Communication of norms 82
Zala 4418 in each county (2007, %) Restoration, compensation to the victim and the society 79
Összesen 192022 Punishment is indispensable 71
Closing the case and appeasement of the parties 70
Enforcing the legislator’s intentions
0.50%

1.00%

1.50%

2.00%

2.50%

3.00%

3.50%

4.00%

4.50%

5.00%
68
Retribution 49

[Link] The tasks of criminal justice Figure 16

5.2.4 The attitude analysis In the survey, we presented the possible objectives of criminal Views on the objective of
justice with a focus on restorative justice [we applied a similar list criminal justice – average on
The objective of the questionnaire-based survey was to find an answer to the following question: as the one used in an earlier study conducted by Klára Kerezsi70 a scale of 0 to 100 (100=very
is there a link between the attitudes of criminal law professionals and the proportion of mediation (2006) and we added two new possible objectives] to the participants important, 0=not important at all)
referrals in the given county? In other words: what is the connection between the vast differences in and they were asked to grade to what extent they agreed with these
the results above and the opinions of professionals on mediation? objectives.
The survey was designed in a way that it included equal numbers of participants from three counties Almost all participants agreed that the victim’s interests should
where mediation referral rates are very high (Baranya, Veszprém and Heves) and from three counties be taken into consideration and represented in the procedure,
where referral rates are lower than the average (Nógrád, Zala and Tolna). In the end, 100 prosecutors and a similar proportion agreed that the offender should be
and 50 judges participated in the survey from both low referral rate and high referral rate counties. encouraged to compensate the victim for the damage caused. The
In order to acquire the necessary number of survey items, we later made interviews in Budapest as victim’s compensation was included in five statements but the
well, where the proportion of mediation procedures compared to the number of indictments is also participant’s level of agreement differed depending on the context.
lower than the national average. The participants tended to agree more with the need to encourage
The interview questions can be classified in four categories: the offender to compensate the victim than with the statement that
the parties should be encouraged to come to a settlement directly.
• the role and the tasks of criminal justice; The statement that the offender should primarily be convinced
• the operation of criminal justice; (and not forced) to cooperate in making amends is less accepted
• preventive, retributive and restorative justice; than the previous statements. The fourth most popular statement
• views on mediation; is the one in which restitution is obviously classified as the task
of criminal justice, and the least popular is the one in which the
We therefore tried to check whether there are large differences regarding these fundamental issues punishment of the offender is given much less importance than the
between counties with higher and counties with lower referral rates. compensation of the damage.
In conclusion, it is clear that for professionals the punishment
70
We would like to use this opportunity to
[Link] The objective of criminal justice is by far the least important objective, and they give priority to thank Klára Kerezsi for permitting the use
Our basic goal in examining the objective of criminal justice was to collect information on what restitution and the interest of the victim (see Figure 17). of her list of objectives.
proportion of judges and prosecutors supports the restorative justice paradigm and what proportion of
them supports the retributive paradigm. We asked various categories of questions to find an answer.

280 ////////////////////////////////// +++++++++++++++++++ 281

 The interests and needs of the victim
should be voiced in the procedure. 91 agrees/
In the criminal procedure, the offender should be is satisfied
encouraged to provide compensation for the damage caused. 86 (%)
Criminal justice must provide an opportunity for
the offender and the victim to directly agree on the 77
compensation for the damage caused. Punishments are effective in reducing crime rates 48%
It is the obligation of the criminal justice system to make
offenders realise what they have done. 76
Satisfied that mediation has become
If the offender is convinced to cooperate, 92%
the chance for restitution will a method of criminal justice
be higher than if force is used.
64
Mediation is an appropriate method for increasing the
Criminal justice should focus on both the
60 75%
needs of the offender and the victim. efficiency of criminal justice in terms of achieving its goals
The primary objective of the criminal
procedure is the punishment of the offender. 57 Mediation simplifies the work
It is the objective of criminal justice to guarantee that the of prosecutors and judges (see below)
victims are compensated for any damage they suffer.
Criminal justice should focus on the compensation
56
Figure 17
Percentage of judges that agree • 62%
of the damage caused by the crime rather 47 The importance of the
than on the punishment of the offender.
The local community should have a role in various tasks of criminal
holding the offenders responsible for their action. 35 Percentage of prosecutors that agree • 31%
justice – average on a scale
Punishing the offenders is more important
than respecting their human rights. 32 of 0 to 100 (100=very important,
The only objective of criminal justice Satisfaction with the results of the procedures 80%
is the punishment of the offender. 25 0=not important at all)
Satisfaction with the work of the Office
95% Table 12
of Justice and the probation officer mediators
Opinions on the mediation procedure
[Link] The operation of the criminal justice system and the participants of the criminal procedure The number of procedures will increase short term 69% from certain aspects
At this point, our aim was to find out whose interests are represented the most in the criminal procedure
according to criminal law practitioners, and we also collected information on what participants think
their role is in the procedure and how they would change these roles. Only a half of the professional staff of penal institutions think that punishment is suitable for
The answers suggested that the judges have the most important role in the procedure. The second reducing crime rates. Most of them are glad that mediation is now available in the criminal justice
most essential role is that of the prosecutors’, while the suspects are a close third. The interests of the system because mediation can help criminal justice in achieving its goals.
victims are currently at the least important (fifth) place. Interestingly, when the participants were asked About twice as many judges than prosecutors said that mediation makes their work simpler. One
about what the ideal situation would be, the victims’ role changed the most when compared to their actual reason behind this may be that prosecutors come into contact with criminal cases first and refer them
position. According to the participants, in an ideal case, the victims’ interests moved up to the third position, to mediation twice as often as judges, which means that judges have dealt with a smaller number of
“beating” offenders by a narrow margin, and defence attorneys were last in the line (see Figure 18). On cases since the procedure was introduced.
the basis of a comparison between the “actual” and “ideal” situations, it can be concluded that according Legal practitioners are very satisfied with the results of mediation and the work of the Office of
to the research participants only the victims should be given a role relatively larger then their current role, Justice, and this can be interpreted as a sign that mediation will be applied more extensively. 70% of
that is, the participants thought that the interests of the victims should be represented better. those who replied said that the application of the procedure is likely to grow.

Judge 1.9 5.2.5 Some key conclusions of the research

2
Prosecutor 2.6
2.8 Criminal justice in Hungary has a unique double character as both the restorative paradigm and the
Victim 4.1 retributive paradigm enjoy support among criminal law practitioners. However, it is clear that the
3 restorative philosophy is in a more favourable position, as retributive reactions are less supported
suspect/accused 2.7 by the profession. This is because the current practice of punishment is regarded as a system of
3.1
3.5
mediocre effectiveness and this in itself is not sufficient to reduce crime rates efficiently.
Defence attorney
4 Figure 18 75% of judges and prosecutors believe that mediation improves the criminal justice system’s
The importance of the party’s role efficiency in achieving its goals and they generally believe (95% of them) that the Office of Justice is
in the criminal procedure currently doing a good job in mediation procedures. It is an important finding of the research that, according to
actual ideal
and in an ideal case – average rank the profession, the local court practice, the prosecutors’ practice and custom all have an influential
(1=the most important role, 5=the role in referring cases for mediation (in addition to the relevant legal regulations), which means
least important role) that the local effect of mediation is the most significant factor. We also learned that low numbers of
referrals for mediation in certain counties do not necessarily mean that a lot of mediation requests
[Link] The practitioners’ opinion of the mediation procedure were rejected by the authorities but rather that the initiation of mediation was also low. This is most
Below I listed a few key data on the role, the significance and the future of the procedures and also probably because in these counties the legal profession does not have enough information about
on some opinions about it (see Table 12). mediation to apply it routinely.

282 ////////////////////////////////// +++++++++++++++++++ 283

 There is a clear-cut difference between the attitudes of
practitioners in counties where mediation is often applied and the
Subject Index
attitudes of practitioners in counties where referrals are rarely
made. The practitioners in counties with higher rates of mediation accountable 159, 199, 203,
active citizenship 61

• believe in restorative justice more, active repentance 109, 132, 134, 219, 221, 278

• trust mediation more, active responsibility 36, 49, 221

• have a better opinion of the method and its application, activists 104, 106

• support retributive responses less, addiction issues 26, 261

• find agreements made in the procedures appropriate. adult offender 133, 147
after-care 26, 112, 218, 220, 224, 259, 260, 261
On the basis of the first year’s experience, it is safe to declare agreement 4, 5, 6, 7, 22, 31, 32, 38, 39, 49, 50, 51, 52, 53, 62, 64, 69, 70, 100, 101, 102, 115, 119, 120, 121, 122, 123, 131,
that mediation is a success and criminal justice professionals are 132, 133, 134, 141, 142, 154, 157, 164, 169, 174, 176, 180, 195, 210, 211, 212, 214, 246, 254, 256, 268, 270, 271, 273, 276,
generally satisfied with the developments. 278, 279, 281
The method still offers a lot of opportunities to exploit. Mediation alternative conflict resolution 24, 78, 79, 80, 81, 90, 276
could be applied much more frequently than it is applied today, alternative dispute resolution 24, 137, 141, 178, 188
even if the applicable statutory rules are not modified. Prosecutors, alternative sanction 146
judges and mediators should cooperate closely to achieve a more awareness of painfulness 32
widespread use of mediation. behaviour rules 7, 26, 219, 221, 222, 223, 260
Brå 213, 214, 215
References bullying 21, 67, 68, 69, 70, 71, 73, 75, 77, 81, 83
case management 24, 79, 220, 258, 259, 260, 263
• Kerezsi, K. (2006) The Prospects of Restorative Justice in Handling Crimes. caution 146, 162, 166, 172, 180, 201, 274
Budapest: Budapest Social Resource Centre charity 224, 227, 241
civil party 227, 228
closed prison 228
common self-interest 37, 38, 39
community 3, 4, 5, 6, 7, 20, 21, 22, 24, 25, 26, 27, 30, 31, 32, 37, 38, 47, 48, 49, 50, 51, 52, 53, 54, 55, 61, 62, 64, 67, 75, 76,
78, 81, 90, 93, 94, 97, 98, 104, 105, 107, 110, 112, 115, 120, 139, 140, 141, 142, 143, 144, 150, 154, 156, 166, 167, 168, 170,
173, 176, 178, 179, 180, 188, 191, 192, 193, 194, 195, 196, 197, 198, 199, 200, 201, 202, 203, 210, 217, 218, 219, 220, 221,
222, 223, 224, 227, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 250, 251, 253, 254, 256, 260, 261, 265, 266, 267, 268,
271, 272, 273, 282
community crime prevention 220, 243, 244
community mediation 179, 266, 273
community meeting 168
community prison 247
community sanctions 25, 150, 218, 219, 221, 224
community service 26, 30, 32, 110, 112, 120, 139, 140, 141, 142, 143, 144, 166, 167, 168, 170, 178, 179, 218, 219, 221, 272
compensation 3, 5, 7, 22, 30, 32, 33, 92, 108, 109, 110, 111, 112, 115, 120, 121, 124, 126, 127, 128, 132, 138, 139, 140, 142,
143, 149, 167, 169, 173, 176, 178, 179, 181, 205, 206, 211, 217, 218, 220, 222, 223, 227, 234, 237, 244, 268, 277, 278, 281, 282
conditional discontinuance of the proceedings 121
conference model 21, 60, 61, 164
conflict management 20, 69, 75, 90, 93, 97, 99, 100, 101
conflict prevention 21, 90, 94
conflict resolution 3, 21, 24, 30, 73, 75, 76, 77, 78, 79, 80, 81, 82, 85, 90, 93, 99, 106, 157, 167, 178, 183, 198, 200, 244, 246,
249, 251, 265, 274, 276, 277
conflicts in schools 70
contract 26, 52, 93, 132, 247, 254, 260, 277
coordinator 49, 63, 65, 66, 92, 167
court 5, 6, 7, 22, 23, 25, 39, 40, 50, 51, 53, 54, 60, 64, 81, 88, 108, 110, 115, 119, 120, 121, 122, 126, 127, 129, 131, 132, 133,

284 ////////////////////////////////// +++++++++++++++++++ 285

139, 140, 141, 142, 143, 144, 149, 154, 157, 159, 163, 164, 165, 167, 168, 169, 172, 173, 174, 175, 176, 180, 182, 193, 198, mediator 6, 25, 49, 50, 51, 55, 69, 70, 71, 74, 75, 76, 79, 80, 100, 101, 102, 112, 115, 119, 123, 124, 128, 132, 148, 156, 157,
205, 206, 207, 210, 211, 212, 220, 222, 231, 237, 253, 254, 256, 259, 269, 277, 278, 283 158, 159, 168, 174, 179, 182, 195, 196, 197, 198, 199, 200, 205, 210, 212, 214, 219, 231, 232, 234, 235, 236, 238, 266
crime prevention 11, 21, 23, 44, 53, 58, 69, 71, 89, 90, 91, 94, 95, 112, 132, 160, 164, 167, 209, 220, 243, 244, 250, 251, misdemeanour 142, 180, 223
criminal justice 3, 5, 6, 7, 11, 20, 21, 22, 23, 24, 27, 29, 30, 31, 32, 33, 36, 37, 40, 41, 42, 44, 48, 49, 50, 51, 52, 53, 58, 78, model project 94
80, 119, 125, 144, 145, 148, 149, 150, 155, 160, 178, 180, 182, 183, 184, 185, 186, 188, 194, 196, 197, 199, 202, 203, 206, 217, MUT 167, 168
218, 237, 253, 265, 267, 269, 276, 277, 278, 280, 281, 282, 283, 284, NCPB 243, 244, 245, 247, 248
criminal liability 7, 127, 165 offender 3, 4, 5, 6, 7, 20, 22, 23, 24, 25, 26, 27, 31, 32, 33, 34, 35, 36, 37, 39, 40, 41, 45, 47, 48, 49, 50, 51, 52, 54, 55, 69, 70,
criminal mediation 131, 132, 152, 153, 154, 155, 157, 159, 223, 231, 278 77, 78, 79, 81, 108, 109, 110, 111, 112, 113, 114, 115, 116, 119, 120, 123, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134,
defendant 7, 22, 41, 124, 138, 139, 140, 142, 143, 156, 211 138, 139, 140, 141, 142, 143, 146, 147, 148, 153, 154, 155, 157, 158, 159, 162, 163, 164, 166, 167, 168, 169, 170, 171, 172,
deferred sentence 218 173, 174, 175, 176, 177, 178, 179, 180, 181, 183, 184, 185, 190, 193, 194, 195, 196, 199, 200, 205, 206, 207, 209, 210, 211,
dispute resolution 24, 91, 137, 141, 178, 188 213, 214, 215, 217, 219, 220, 221, 222, 223, 224, 226, 227, 228, 231, 232, 233, 234, 235, 236, 237, 238, 240, 243, 253, 254,
diversion 23, 30, 51, 109, 110, 111, 116, 131, 133, 142, 144, 146, 161, 162, 163, 164, 180, 181, 205, 210, 212, 217, 218, 220, 255, 256, 257, 259, 260, 263, 266, 268, 269, 270, 271, 276, 277, 281, 282
256, 269 Office of Justice 88, 130, 131, 132, 133, 134, 217, 223, 248, 249, 258, 277, 279, 283
diversionary measure 51, 111, 131, 218, 222 open prison 228, 239
domestic violence 23, 24, 53, 60, 63, 79, 80, 94, 115, 116, 137, 138, 143, 144, 148, 151, 177, 178, 180, 181, 182, 183, 184, outcomes of mediation 237
185, 207, 221 paradigm of restoration 243
educational measure 142, 172, 155 partnership 94, 194, 198, 201, 202, 240, 244
European Crime Prevention Network 94, peer help 91, 94
evaluation 14, 53, 55, 60, 81, 84, 124, 144, 175, 178, 179, 183, 184, 192, 198, 212, 214, 226, 247, 274, 275 peer mediation 11, 21, 69, 70, 71, 73, 74, 75, 76, 77, 178, 179
face-to-face mediation 195 peer mediator 70, 75
face-to-face meeting 23, 50, 120, 132, 157, 158, 231, 235 penal measure 119
facilitator 49, 50, 74, 162, 261, 262, 266, 269 penal mediation 22, 23, 144, 156, 178, 179, 182, 183, 184, 185
family conference 163, 266 personal meeting 27, 168, 169, 170, 263
family group conference 21, 26, 40, 59, 60, 80, 189, 197, 220, 258, 261, 262, 263 pilot project 110, 209, 210, 231, 240, 261
felony 127, 146, 181, 197, 223 plaintiff 138, 139, 142, 145
follow-up 11, 64, 65, 76, 101, 102, 159, 160, 179, 183, 184, 247, 262, 269 plan 11, 59, 61, 62, 63, 64, 65, 66, 83, 93, 114, 157, 162, 163, 164, 168, 199, 223, 247, 262, 263, 266, 273
gender perspective 183 postponement of accusation 130, 218, 222
good practice 61, 94, 201, 206 prejudice 138, 187, 191, 201, 245
guidelines 14, 89, 145, 147, 154, 155, 156, 157, 159, 178, 196, 203, 236 pre-sentence report 166, 167, 169, 218, 222
hate crime 24, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 200, 202, 203, 204 principle of legality 146, 147, 148, 182
indirect mediation 179, 189, 268 principle of opportunity 172, 182
injured 3, 5, 6, 22, 24, 26, 119, 121, 124, 158, 166, 188, 211, 243, 244, 248 prison mediation 153, 159, 232, 271
inmates 25, 26, 207, 218, 225, 226, 227, 228, 229, 231, 234, 244, 246, 247, 248, 258 prison probation 258, 261
judge 5, 33, 41, 47, 51, 54, 66, 79, 105, 110, 111, 112, 129, 130, 131, 141, 144, 154, 155, 159, 182, 210, 212, 231, 259 prison system 87, 209, 225, 226, 227, 228, 231, 237
juvenile justice 23, 29, 44, 78, 118, 119, 142, 149, 153, 155, 157, 158, 159, 172 probation 7, 23, 42, 50, 52, 78, 80, 83, 88, 94, 110, 112, 115, 126, 130, 132, 134, 139, 140, 142, 143, 144, 145, 146, 154, 157,
juvenile justice system 23, 78, 142, 149, 158, 160, 172 165, 166, 167, 168, 169, 170, 172, 180, 193, 194, 197, 209, 210, 211, 212, 218, 219, 220, 221, 222, 223, 247, 258, 259, 260,
juvenile offender 111, 157, 166, 167, 174, 222 261, 262, 263, 277, 283
local mediation 201 probation and mediation service 165, 166, 168, 210, 211
managing conflicts 22 probation officer 50, 52, 110, 143, 145, 166, 168, 170, 197, 210, 211, 212, 219, 220, 222, 259, 261, 262, 263, 283
means of diversion 205 probation service 88, 112, 180, 218, 219, 223, 247, 258
mediation 4, 8, 11, 14, 20, 21, 22, 23, 24, 25, 32, 39, 45, 47, 50, 51, 52, 53, 69, 70, 71, 73, 74, 75, 76, 77, 78, 79, 80, 81, 90, probation supervision 7, 165, 212, 259, 260, 261
91, 96, 100, 101, 102, 108, 110, 111, 112, 113, 114, 115, 116, 118, 119, 120, 121, 122, 123, 124, 125, 129, 130, 131, 132, 133, proportionate punishment 31, 33, 34
134, 135, 137, 138, 139, 141, 142, 143, 144, 145, 147, 148, 149, 150, 152, 153, 154, 155, 156, 157, 158, 159, 160, 162, 166, public prosecutor 6, 111, 112, 115, 116, 126, 141, 143, 154, 155, 172, 173, 174, 175, 176, 180, 181, 182, 231
167, 168, 169, 171, 172, 173, 174, 175, 176, 178, 179, 180, 181, 182, 183, 184, 185, 186, 189, 195, 196, 197, 198, 200, 201, punitive apriorism 30, 31, 34, 37, 40, 41
205, 206, 207, 208, 209, 210, 211, 212, 213, 214, 215, 218, 219, 220, 223, 228, 229, 231, 232, 233, 234, 235, 236, 237, 238, rate of re-offending 271
255, 257, 258, 266, 267, 268, 270, 271, 272, 273, 275, 276, 277, 278, 279, 280, 281, 282, 283, 284 recidivism rate 115, 159, 160, 175
mediation process 22, 23, 24, 25, 69, 74, 79, 101, 102, 112, 115, 116, 119, 120, 155, 157, 158, 166, 174, 176, 179, 181, 183, reconciliation 4, 14, 24, 121, 126, 127, 128, 139, 143, 148, 149, 157, 158, 165, 179, 183, 212, 270
184, 198, 211, 231, 232, 234, 235, 238 referral order 254
mediation service 24, 156, 157, 158, 198, 210, 211, 228, 234, 236, 237 reintegration 26, 31, 52, 78, 80, 148, 210, 211, 218, 219, 220, 221, 222, 244, 254, 261, 263
mediation services 23, 24, 51, 77, 90, 132, 153, 154, 155, 156, 159, 160, 174, 176, 201, 210, 220, 238 re-integrative shaming 81

286 ////////////////////////////////// +++++++++++++++++++ 287

release on parole 140, 218, 222, 235, 260 teacher training 95
re-offending 23, 26, 27, 31, 40, 44, 49, 50, 53, 112, 115, 214, 220, 222, 240, 241, 243, 244, 255, 256, 260, 268, 271 TOA 125, 126, 128, 129, 205, 206, 207, 208
reparation 4, 5, 25, 26, 27, 30, 31, 32, 33, 34, 36, 38, 49, 50, 52, 80, 109, 111, 112, 120, 126, 143, 157, 158, 162, 164, 166, training 6, 22, 23, 52, 53, 63, 70, 73, 83, 84, 85, 90, 91, 92, 93, 94, 95, 103, 106, 118, 123, 124, 129, 132, 138, 145, 146, 147,
217, 218, 219, 220, 221, 222, 223, 242, 271, 272, 274 150, 153, 154, 159, 162, 164, 165, 174, 176, 182, 184, 200, 206, 207, 214, 220, 221, 223, 237, 240, 241, 244, 245, 246, 248,
research 11, 23, 27, 29, 33, 34, 35, 42, 54, 60, 61, 63, 65, 66, 71, 76, 81, 82, 83, 84, 85, 115, 137, 141, 144, 148, 149, 178, 249, 250, 251, 260, 262, 263, 266, 269, 271, 277
182, 183, 184, 185, 188, 192, 193, 202, 204, 207, 226, 261, 266, 267, 268, 269, 270, 271, 272, 273, 274, 275, 278, 279, 282, 283 training for mediators 214, 237
resolving conflicts 22, 71, 273 treatment 5, 6, 31, 32, 35, 40, 53, 62, 94, 132, 138, 143, 144, 145, 146, 148, 149, 150, 151, 159, 166, 172, 173, 176, 178, 180,
responsibility 4, 5, 20, 21, 26, 36, 38, 39, 43, 49, 50, 52, 55, 59, 61, 67, 76, 81, 89, 91, 102, 109, 112, 124, 127, 132, 138, 141, 184, 219, 221, 222, 260, 261
143, 155, 161, 162, 174, 178, 198, 201, 205, 206, 214, 217, 220, 221, 224, 227, 232, 241, 244, 246, 249, 253, 254, 267, 268, 274 victim 3, 4, 6, 7, 20, 22, 23, 24, 25, 26, 30, 31, 32, 34, 35, 38, 47, 48, 49, 50, 51, 53, 55, 69, 70, 71, 77, 78, 81, 88, 108, 109, 110,
restitution 4, 5, 25, 26, 30, 32, 50, 51, 52, 112, 114, 120, 126, 127, 128, 138, 139, 140, 143, 144, 195, 206, 220, 221, 222, 223, 111, 112, 113, 114, 115, 116, 118, 119, 120, 123, 125, 126, 127, 128, 129, 131, 132, 134, 137, 138, 139, 140, 141, 142, 143,
224, 244, 245, 247, 248, 278, 281, 282 146, 148, 150, 155, 156, 157, 158, 159, 162, 163, 164, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 178, 179, 180, 181,
restoration 7, 14, 30, 31, 32, 33, 34, 81, 112, 139, 140, 165, 184, 195, 196, 203, 219, 243, 244, 254 183, 184, 185, 188, 189, 190, 191, 193, 194, 195, 196, 197, 200, 203, 205, 206, 207, 210, 213, 214, 215, 219, 220, 222, 223, 226,
restorative adviser 228 227, 228, 231, 232, 233, 234, 235, 236, 237, 238, 243, 244, 253, 254, 255, 256, 257, 265, 266, 268, 269, 270, 272, 277, 281, 282
restorative apriorism 31, 37 victim offender mediation 22, 23, 47, 50, 70, 77, 78, 110, 111, 112, 113, 114, 115, 116, 119, 123, 125, 129, 138, 139, 142,
restorative circle 82 155, 159, 166, 167, 168, 169, 171, 172, 173, 174, 175, 176, 178, 179, 180, 181, 183, 184, 185, 195, 205, 206, 207, 213, 214,
restorative conference 163 215, 219, 231, 236, 237, 238, 266
restorative justice 3, 4, 5, 6, 7, 8, 11, 20, 21, 23, 24, 25, 26, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 44, 45, 47, vocational training 138, 150, 241, 244, 262
50, 51, 52, 53, 55, 69, 73, 78, 80, 81, 83, 85, 86, 108, 109, 110, 112, 115, 116, 117, 118, 125, 126, 129, 132, 139, 144, 145, 148, volunteers 104, 105, 106, 107, 180, 207, 223, 267, 272, 273
149, 151, 152, 155, 159, 160, 162, 167, 170, 172, 178, 179, 180, 182, 183, 185, 186, 188, 194, 195, 196, 198, 199, 200, 203, VOM 20, 24, 25, 26, 112, 113, 126, 130, 131, 132, 133, 138, 143, 144, 169, 173, 176, 179, 180, 181, 182, 183, 184, 185, 206,
205, 207, 209, 211, 213, 217, 218, 219, 220, 221, 222, 223, 224, 226, 227, 228, 229, 231, 236, 238, 243, 247, 248, 251, 253, 207, 213, 231, 232, 255
254, 256, 258, 265, 267, 268, 269, 270, 271, 272, 273, 274, 275, 278, 279, 280, 281, 284, YOP 254
restorative justice adviser 226, 228 YOT 222, 254, 256
restorative justice measures 148, 218 youth care 61, 62, 66
restorative justice practices 24, 78, 81, 83, 85, 160, 178, 179, 183, 205, 209, 231 youth offender 223, 268.
restorative paradigm 27, 283
restorative practices 21, 22, 23, 27, 47, 51, 55, 56, 81, 82, 84, 85, 103, 107, 178, 188, 197, 243, 244, 265, 266, 267,
restorative principles 29, 268, 269
restorative prison 244, 245, 247, 248
restorative society 266, 274
results of mediation 22, 283
retributive paradigm 27, 280, 283
retributivism 35, 36, 37, 41
RJ 20, 23, 24, 29, 30, 33, 81, 164, 188, 193, 194, 195, 196, 197, 198, 200, 202, 203, 228, 253, 255
RJ practices 24, 81, 188, 194, 195, 196, 202
safety measures 172
school conflicts 21, 22, 29, 90
school violence 85, 87, 88, 89, 90, 91, 95
settling conflict 25
shuttle diplomacy 120
skills 21, 22, 24, 52, 55, 67, 68, 69, 70, 71, 75, 76, 92, 103, 105, 106, 107, 153, 162, 182, 221, 222, 223, 238, 240, 244, 249,
250, 260, 269
social inquiry report 145, 218, 222
social mediation 178, 207
social reintegration 80, 221
social services 48, 74, 87, 178, 179, 214, 273
social worker 62, 80, 91, 197, 211
suspension of imprisonment 140
symbolic reparation 112, 222
symbolic restitution 220, 221, 222, 223
Täter-Opfer-Ausgleich 125, 126, 129, 205, 208

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Methodology
This publication contains articles on restorative practices presented
at the European conference “European best practices of restorative
justice in the criminal procedure” held between 27–29 April 2009
in Budapest within the framework of Project JLS/2007/ISEC/FPA/
C1/033 of the same title.
The subject of the conference was based on the information on
restorative practices applied in the specific member states provided
by national experts of the EU member states reached and involved
through the European Crime Prevention Network.
The contents and the structure of this publication differ from
that of the conference (see at [Link]/index.
html?pid=1672&lang=en) in an extent justified by the need to
preserve the unity of content of articles by certain authors. While
at the conference, it was possible to give presentations (even more
by some speakers) emphasising specific aspects in separate plenary
and workshop sessions on practices implemented

• in crime prevention (outside the criminal justice system),

• in the criminal procedure before the accusation,
• in the criminal procedure during the trial, and
• during the enforcement of sentences,

the articles in this publication are systematized according to Crime

prevention – Pre-trial phase and Court procedure – Enforcement
of sentences. The reason for this is that articles on restorative
practices in the criminal procedure may contain certain practices
applicable both before and after the accusation under almost the
same conditions and with almost the same rules.
A further difference in comparison with the content of the
conference is that the speeches and presentations given only for
the reason of the formal and networking characteristics of the
conference are not included in this publication.
Despite the title of the publication, we found it reasonable to
include experiences on “bad practices” in certain articles in order
to share the lessons learned.
The Subject Index attached to this publication gives an overview
on the terminology of restorative justice and practices.

290 ////////////////////////////////// +++++++++++++++++++ 291

292 //////////////////////////////////
 Publisher Ministry of Justice and Law
Enforcement of the Republic of
Hungary, Budapest 2010

Editors Afford Ltd., Melinda Gyökös,

Krisztina Lányi

Design and Printing Graphasel Design Studio

This publication is not

subject to trade.
Published in 500 copies.
 The publication is made with the financial support of the
European Commission – Directorate-General Justice,
Freedom and Security from the Prevention of and Fight
Against Crime Programme 2007 in the framework of the project
“European best practices of restorative justice in the criminal procedure”
JLS/2007/ISEC/FPA/C1/033.

The responsibility for the accuracy of the information rests with its
authors, the views expressed in the publication can not be regarded as
the official point of view of the European Commission or the Ministry of
Justice and Law Enforcement of the Republic of Hungary.

The project was delivered as part of the Work programme

of the European Crime Prevention Network.