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Programma Comunitario Grotius II Penale

Michael Königshofer: Experiences of victim offender mediation in Austria

The main idea of victim offender Mediation

The main idea of victim offender mediation is, that the conflict which arises in connection with a criminal act, is returned to two or more involved parties. With the knowledge of methods, conflict management and conflict-theory a mediator must support the parties to solve their conflict by their own. Material compensation and immaterial compensation, trough dealing with the emotional aspects of the incident should offer the possibility to build a new basis of coexistence for the future. The instrument of mediation, as an answer to criminal acts, has now an experience of almost twenty years in Austria.

In the former political discussion two aspects were of consideration

In the 80`s we had in Austria a Juvenile law, which had only a few possibilities to react on criminal behaviour and juveniles were at high risk to be taken in custody. At that time we had a lot of juvenile inmates in prison.

In the 90`s the aim to protect victims of criminal acts were ruling the political discussion. In Austria the victim of a criminal act has the function of a witness at penal court. In order to achieve financial compensation victims have to file a claim at civil court. To see the victim as a person with material needs and emotional wounds, means to take the victim seriously. Mediation does it. This fact certainly contributs to the success of mediation in penal matters in Austria. Our experiences with victims shows us, the compensation for the suffered damage is of primary importance for the victim and not the sanctions by court. Proceeding from there, two pilot projects of mediaton were initiated. The first pilot project of mediation in the 80`s, focusing juvenile criminal acts and the second one in the 90`s, focusing adultous criminal acts. The scientific results of those projects were very successful and let to the fact, that legal frame work for mediation was implemented by law through the criminal procedure act.

Share of positive results after victim offender mediation.

The share of positive results in juvenile cases almost reach 90%, adult cases are positivly settled by 75%.

Recidivism

A research of the university of law in vienna showed, that during a period of 3 years, only 10% of offenders (in cases of bodily injuries) with no previous records relapsed, after a positive victim offender mediation. Compared with the same group of offenders, who went through a regular penal court procedure, 22% (more than the double rate) relapsed.

Satisfaction of victims

Research findings of the university of Innsbruck and Linz showed, that 84% of victims were highly satisfied, 8% were satisfied after victim offender mediation and only 8% felt discontent by the outcome of the victim offender mediation. Generally in Austria the victim offender mediation has a high acceptance in the public opinion.

Legal Base

1999 the national assembly passed an amending law to the code of criminal procedure and giving various methods of diversion and above all, victim offender mediation a legal foundation. This important reform came into force in 1 January 2000 and concluded the former development of victim offender mediation in Austria for juveniles and adults. This reform, -called "Diversion package" - also provides the legal base for different instruments of diversion, - like monetary fine, - community services, probation (with and without duties) - and the mediation for victim and offender. The legal frame work for diverting a case during preliminary proceedings for a diversion measure are: no serious culpability on the part of the suspect the maximum range on punishment for the offence is 5 Years (serious body injury, burglary). Except for juveniles: punitive sanctions are half of adults. adequate clarification of the facts and circumstances no loss of life If the legal frame work has been met, victim offender mediation, community services, a monetary fine, or a probation (with or without duty) can be applied. Basically all diversion measures have to meet the interests of the victim of the greatest extent.. The victims interests, emotional and material needs are best accommodated through victim offender mediation. Monetary fine, community service and probation are measures, which focus the offender and his deficits. As comparism, Victim offender mediation is focusing the conflict and the involved parties,, especially the victim.

Special provisions for victim offender mediation implemented in the code of criminal procedure

The state prosecutor is the gatekeeper for the diversion measures and decides how to handle the offence. In cases of victim offender mediation the prosecutor discontinues prosecution for a temporary Renouncement in order to deliver the proposed measure. In case of meeting the conditions of diversion, but state prosecutor decides for a criminal procedure, the judge can offer a diversion measure until the end of the court session. So you can say, the judge has to take a second look, if diversion is possible. But nevertheless most cases of mediation are assigned by prosecution (more than 90%, totally since 1986 about 75 000 cases) The state prosecutor can drop prosecution of a criminal offence, if the suspect is willing to take up the responsibility for the crime and tries to compensate the damage done. If the suspect is not willing to take up responsibility for the crime act, the case has to be sent back to the state prosecutor, who has to continue the criminal proceedings, or apply another diversion measure. The injured party has to be included in the efforts for victim offender mediation, if he is willing. For adults the solution has to be agreed by the victim. The justified interests of the victim must be taken into consideration in any case. If the victim does not agree, the case has to be sent back to the prosecutor, who has to decide, either to continue the criminal proceedings or apply an other diversion measure. The state prosecutor requests a mediator to advise the victim and the offender of the mediation program and to inform them of their rights and assist them in their efforts to reach a restitution agreement. The Austrian association Neustart ( former Association for Probation and social work) accomplishes victim offender mediation in juvenile and adult cases in hole Austria. It is a private association, with own management, subsidised by the ministry of Justice, which provides 90% of the funding. The headquater is based in Vienna and on the regional level 15 offices are installed, managed by a director who is also responsible for all contacts with prosecutors and court. Especially in the working field of victim offender mediation, cooperation on a professional base, between the gatekeepers (prosecutor and judges ) and mediators is crucial.

The mediators responsibilities (stipulated in §29 probation act)

The Mediator has to assist all of the parties involved and help to balance the interests of the parties. The mediator has to contact the offender and the victim to inform them of the victim offender mediation program, - its basic purpose, - procedure and the consequences associated with the program. The Mediator explore the suspects willingness to take the responsibility for the crime, he safeguard the rightful interests of the victim and discuss any requests or expectations the victim may have. The mediator has to inform the parties of the purpose of victim offender mediation. In the working field of victim offender mediation the mediators must posses a professional qualification in mediation and social work. The training program of Neustart has two parts. One for the beginners for basic qualification and a second to become a certified mediator in penal matters. Both parts are theoretical and practical level and have duration of 3 years.

The objects of mediation

Mediators in victim offender mediation have to have knowledge of important aspects of civil law, penal law, conflict theories and conflict management. Also the Know how of human behaviour in conflict situations and methods of mediation is necessary. Austrian mediators in penal matters developed several methods of solving different types of conflicts.

The pre-mediative phase

All approaches of mediation include, first of all, a "pre-mediative phase". During the pre mediative phase the mediator informs the parties about: their legal position ( role of the victim or offender determined by prosecution), the process and aims of mediation and also clarifies with the parties their acceptance of the mediation process, if the offender is willing to take up his responsibility for the criminal behaviour subjective perceptions of each parties, which party played which part in development of the conflict situation (why did it escalate?) history and reason of the conflict and possible solutions. After the pre meditative phase the mediators decides with the parties, if a mediaton phase can be started, or not. If the pre mediation phase shows, that the parties are not able to participate in a mediation process, the case will be send back to the prosecutor or judge. In any case the prosecutor or judge gets a written report from the mediator. Afterward the prosecutor or judge decides to either go on with penal proceedings, or choose another diversion measure (community service, probation, etc.). If the pre meditative phase shows the acceptance of both parties for mediation, the meditative phase starts.

The meditative phase

The next step, we call it "mediative phase" is the main part of victim offender mediation. Thereby the parties are sitting face to face and search, supported by the mediator, for possible solutions. Subjective perceptions and emotional aspects of the conflict are reflected with the aim to restart the interrupted communication of the parties. Finally the emotional irritation should be sufficient elaborated, that emotional compensation gets its place. Afterwards the parties negotiate fair financial compensation ( in cases of bodily injuries financial compensation of the suffered pain, in cases of property damage, proper material compensation). The agreement of the parties is put in a written statement, you can say a contract with both parties is made, where both have to sign. This contract and the outcome of the mediation process is reported by the mediator to prosecution or court. If the conflict is solved and all legal conditions were fulfilled, prosecution has to drop the case. Let me give you now some figures of our practice: 90 % of assigned juvenile cases can be solved by victim offender mediation and 75% of adult cases can be settled. So you can see mediation in penal matters is a successful instrument. This instrument requires a functioning cooperation between the gatekeepers (prosecution, or court) and the mediators in order to choose the right cases for mediation in penal matters or diversion in general.

Typs of opfences and conflicts, suitable for mediation

70% of all assigned cases are offences related to aggression (Aggressionsdelikte) most of them are physical injuries, others include serious threats (Drohungen), harassment (Nötigungen) and in some cases robbery. The remaining 30% are offences against property, like vandalism, burglary, theft). You can say that an offence is just the top of an iceberg and under sea level conflicts with long, or short histories are hidden. As a consequence mediation is not only dealing with criminal aspects, but also with conflicts lying underneath. Assigned cases are conflicts and disputes in: in family surroundings (including domestic violence) on the working place (f.e. between collegues) in the neighbourhood ( those are the most difficult ones - long history) in schools ( between classmates) in traffic situations ( between car drivers etc.) social surroundings or gatherings (f.e. in bars) The successful story of victim offender mediation has actually to fight with budget cuts. In one way the individual working load of mediators has been raised an on the other hand the indention of the ministry of justice is to extent mediation also in the field of civil law.