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ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
Restorative Justice in Penal
Matters in Europe
Frieder Dünkel
Barcelona, 10 October 2014
Sponsored by the European Commission‘s Specific Programme
„Criminal Justice 2007-2013“ and the University of Greifswald
JUST/2010/JPEN/AG/1525
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
History and aims of the project
• Start: 1 July 2011
• End: 31 December 2014
• Title: Restorative Justice in Penal Matters in Europe
• Aims:
• Stocktaking and comparison of restorative justice measures
and processes/procedures in 36 countries and jurisdictions
• Legislative aspects
• Practice
• „Good practices“ and „bad experiences“
• Evaluation of RJ-procedures and measures
• Recommendations for further developing RJ in the context in
different countries
Countries and jurisdictions covered by the study
• Austria
• Belgium
• Bosnia-Hercegovina
• Bulgaria
• Croatia
• Czech Republic
• Denmark
• England/Wales
• Estonia
• Finland
• France
• Germany
• Greece
• Hungary
• Ireland
• Italy
• Latvia
• Lithuania
• Macedonia
• Montenegro
• Netherlands
• Northern Ireland
• Norway
• Poland
• Portugal
• Romania
• Russia
• Scotland
• Serbia
• Slovakia
• Slovenia
• Spain
• Sweden
• Switzerland
• Ukraine
• Turkey
Contents of national reports
1. Origins, aims and theoretical background of
Restorative JusticeVictim/Offender orientation, historical contextual variables, basic assumptions of
penal law and criminology, aims of reforms, influence of international standards
2. Legislative basis for Restorative Justice at different
stages of the criminal procedure in juvenile and adult
criminal lawPre-court level (diversion), court-level, restorative elements while serving prison
sentences in juvenile and adult criminal settings
3. Organisational structures, restorative procedures and
delivery VOM, conferencing, reparation, compensation orders, community service, RJ in
prisons
4. Research, evaluation and experiences with Restorative
JusticeStatistical data, implementation research and evaluation (preventing re-offending)
5. Concluding remarks
Definitions
• What does Restorative Justice mean?
• RJ is “any process in which the victim and the offender, and, where appropriate, any other individuals or community members affected by a crime, participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator.” Art. 2 ECOSOC Res. 2002/12
Definitions
• “Restorative outcomes are agreements reached as a result of a restorative process. [They] include responses and programmes such as reparation, restitution and community service, aimed at meeting the individual and collective needs and responsibilities of the parties and achieving the reintegration of the victim and the offender.” Art. 3 ECOSOC Res. 2002/12
Outcome oriented definition
• RJ aims “to resolve conflict and to repair harm. It encourages those who have caused harm to acknowledge the impact of what they have done and gives them an opportunity to make reparation. It offers those who have suffered harm the opportunity to have their harm or loss acknowledged and amends made.” Liebmann
2008, p. 301.
• Other definitions instead emphasize the process of conflict resolution/mediation.
What are the differences between the classic criminal justice approach and Restorative Justice?
Restorative Justice• Restorative Justice can be seen as an alternative
justice approach – extra-judicial conflict resolution
• RJ replaces the traditional justice system
• RJ elements can also be a part of the traditional justice system which partly transfer the classic penal philosophy
• Restorative elements within the criminal justice system are mediation, reparation, restitution as diversionary measures or non-custodial sentences.
• It can also be an additional part of custodial or non-custodial sentences and even of conditional release from prison.
Criminal law theory and mediation (Restorative Justice)
• Principles of juvenile justice:
• Principle of subsidiarity (priority to diversion and minimum intervention)
• Priority of the educational goal (aspects of special prevention, rehabilitation of mediation)
• Aspects of criminal theory (aims of criminal justice):
• Mediation corresponds to the theory of (positive) special prevention (resocialization) and positive general prevention (norm validation in the general society through the offender taking responsibility for his wrongdoing)
10
ERNST MORITZ ARNDT UNIVERSITÄT GREIFSWALD –
LEHRSTUHL FÜR KRIMINOLOGIEDr. Christine Morgenstern
Criminological basics of mediation
• Crime theories:
• Theory of neutralization
• The threshold for committing criminal offences is
lower if processes of vilification or even
dehumanization take place The inhibition
threshold can be increased by techniques that
confront the offender with the pain he has caused
to the victim. 11
ERNST MORITZ ARNDT UNIVERSITÄT GREIFSWALD –
LEHRSTUHL FÜR KRIMINOLOGIEDr. Christine Morgenstern
Criminological basics of mediation (2)
• Of major importance has been John Braithwaite„s
theory of Re-integrative Shaming (1989).
• The natural sense of shame is to be used to validate
the wrongdoing for the offender (he should recognize
his wrong-doing and take responsibility), on the other
hand the society demonstrates its willingness to
forgive and re-integrate the offender.,
• The parallel of Christian believe: Hate the sin, but
love the sinner!
• Consequences for crime policy:
• Restorative justice, (family group) conferencing etc.12
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
• Manifestations of reparation, reconciliation and restitution
have existed in customary law and ancient laws since the
middle ages (Brehon Law in Ireland; Peace Councils in
Macedonia; also Russia, Bulgaria)
• „Modern rejuvenation“ of RJ has footings in traditional
modes of conflict resolution of indigenous populations
(Maoris in New Zealand, Aborgines in Australia f. ex.)
• Developments of RJ in the context of offending one
element of rise in use of alternative modes of conflict
resolution in other spheres of social life (community,
neighbourhood, school, family and business disputes for
instance)
Roots of Restorative Justice in Penal Matters in Europe
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
„Motors“ for Reform
Abolitionist thinking (Christie,
Hulsman, Mathiesen)
Austria; Croatia; Finland; the Netherlands;
Norway; Spain;
Victims Movement, strengthening
role of victims
Croatia; Denmark; England/Wales; France;
Germany; Greece; the Netherlands;
Montenegro; Norway; Poland; Russia; Serbia;
Spain; Sweden; Switzerland
Rehabilitation and reintegration
over retribution and punishment;
Diversion
Austria; Belgium; Bosnia-Herzegovina;
Croatia; France; Germany; Hungary; Ireland;
Italy; the Netherlands; Northern Ireland;
Portugal; Romania; Russia; Scotland; Serbia;
Slovenia; Spain; Switzerland; Ukraine.
Reforms in particular in the field of
Juvenile Justice
Austria; Bosnia-Herzegovina; England/Wales;
Estonia; Germany; Ireland; Italy; Norway;
Portugal; Romania; Russia; Spain;
Switzerland;
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
Compliance with
international standards,
EU harmonization
Bosnia-Herzegovina; Bulgaria; Croatia;
Czech Republic; Estonia; Hungary;
Macedonia; Montenegro; Netherlands;
Poland; Portugal; Romania; Slovenia;
Serbia; Turkey; Ukraine;
Curbing custody rates
Estonia; Hungary; Ireland; Northern
Ireland; Norway; Poland; Romania;
Russia; Scotland; Slovakia; Slovenia;
Turkey; Ukraine;
Lack of trust in the judi-
ciary following a period of
transition
Bulgaria; Czech Republic; Macedonia;
Northern Ireland.
Inefficiency of an over-
burdened criminal justice
system; caseloads
Bosnia-Herzegovina; Bulgaria; Croatia;
Greece; Hungary; Ireland; Macedonia;
Portugal; Romania; Slovakia; Slovenia;
Turkey.
International standards
• Committee of Ministers Recommendation Rec (99) 19 concerning mediation in penal matters
• Council Framework Decision 2001/220/JHA on the standing of victims in criminal proceedings
• Resolution 2002/12 of the Economic and Social Council of the United Nations on basic principles on the use of restorative justice programmes in criminal matters
• Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime;
Rec (99) 19 concerning mediation in penal matters
• Rule 1: Mediation in penal matters should only take place if the parties freely consent. …
• Rule 3: Mediation in penal matters should be a generally available service.
• Rule 4: Mediation should be available at all stages of the criminal justice process.
• Rule 5: Mediation services should be given sufficient autonomy within the criminal justice system.
• Other standards: Basic facts of the offence must be consented, obvious disparities (e. g. age, intellectual capacities) be observed, qualification/training, impartiality of mediators, agreements (obligations) must be “reasonable and proportionate”.
International standards (3)
• Council of Europe Recommendation No. R. (2003) 20 concerning new ways of dealing with juvenile offenders and the role of juvenile justice;
• Council of Europe Recommendation No. R. (2006) 2 concerning the European Prison Rules (EPR)
• Council of Europe Recommendation No. R. (2008) 11 on European Rules for Juvenile Offenders Subject to Sanctions or Measures (ERJOSSM)
Example ERJOSSM• Nr. 15 ERJOSSM: Mediation or other restorative
measures shall be encouraged at all stages of dealing with juveniles.
• Nr. 22.1: A wide range of community sanctions and measures, adjusted to the different stages of development of juveniles, shall be provided at all stages of the process.
• Nr. 22.2: Priority shall be given to sanctions and measures that may have an educational impact as well as constituting a restorative response to the offences committed by juveniles.
Example ERJOSSM (2)• Juveniles deprived of their liberty:
• Nr. 79: Regime activities shall aim at education, personal and social development, vocational training, rehabilitation and preparation for release. These may include: …
• programmes of restorative justice and making reparation for the offence
• Nr. 94.1: Disciplinary procedures shall be mechanisms of last resort. Restorative conflict resolution and educational interaction with the aim of norm validation shall be given priority over formal disciplinary hearings and punishments
„Gate keepers“ of the criminal justice system
• Police (Anglo-Saxon jurisdictions with the power for diverting cases on that level)
• Prosecutors (if the principle of opportunity applies)
• Courts (either referring to court diversion powers or in the sentencing stage reparation orders, reparation, mediation as a condition of suspended sentences)
• Prison authorities (governors) (for mediation/reparation in prisons)
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
Forms of Restorative Justice and Practice in Europe
Victim Offender
Mediation /
Reconciliation
Austria, Belgium, Bosnia-Herzegovina,
Bulgaria, Croatia, Czech Republic,
Denmark, England/Wales, Estonia, Finland,
France, Germany, Greece, Hungary, Ireland,
Italy, Latvia, Lithuania (!), Macedonia,
Montenegro, the Netherlands Norway,
Poland, Portugal, Romania, Russia,
Scotland, Serbia, Slovakia, Slovenia, Spain,
Switzerland, Turkey (!), Ukraine.
Conferencing
Austria, Belgium, England/Wales, Germany,
Hungary, Ireland, Latvia, Northern Ireland,
the Netherlands, Poland, Scotland, Ukraine.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
Forms of Restorative Justice and Practice in Europe (2)
Reparation independent
of restorative processes
(stand-alone court
interventions, grounds for
sentence mitigation,
diversion)
Austria, Belgium, Bosnia-Herzegovina, Bulgaria,
Croatia, Czech Republic, Denmark,
England/Wales, Estonia, France, Germany,
Greece, Hungary, Ireland, Italy, Lithuania,
Macedonia, Montenegro, the Netherlands,
Norway, Poland, Portugal, Romania, Russia,
Serbia, Slovakia, Slovenia, Spain, Switzerland,
Turkey, Ukraine.
Community Service
Austria, Bosnia-Herzegovina, Bulgaria, Croatia,
Czech Republic, Denmark, England/Wales,
Estonia, France, Germany, Greece, Hungary,
Ireland, Italy, Latvia, Lithuania, Macedonia,
Montenegro, the Netherlands, Norway, Poland,
Portugal, Romania, Russia, Serbia, Slovakia,
Slovenia, Spain, Switzerland, Turkey, Ukraine.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
Implementation of Victim-Offender-Mediation /
Reconciliation
• Council of Europe Recommendation Rec (1999) 19
concerning Mediation in Penal Matters:
VOM is “a process whereby the victim and the
offender are enabled, if they freely consent, to participate
actively in the resolution of matters arising from the crime
through the help of an impartial third party (mediator)”
• Confidentiality, Voluntariness, Impartiality Turkey
(prosecutors as “mediators”); Lithuania (Judges as
“mediators”); Police-led mediation in the UK could be
problematic
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
Implementation of Victim-Offender-Mediation /
Reconciliation (2)
Significant variation in terms of:
• Nationwide provision in practice the exception
(Germany, Austria, Finland, Denmark, Belgium,
Netherlands, Norway);
• In many countries, VOM is one of many means for
fulfilling preconditions for diversion or mitigation;
• Bodies responsible for providing VOM-Services
(NGOs, Probation Service, Social Services, Private
entities; numerous thereof);
• Background/Professional status of Mediators
(volunteers, professionals, probation or social
workers).
Availability of providers of Victim Offender Mediation
Services according to degree of geographic coverage
Country Nationwide availability
of VOM services
Regional availability
of VOM services
Austria X
Belgium X
Bosnia-Herzegovina X
Bulgaria X
Croatia X
Czech Republic X
Denmark X
England/Wales X
Estonia X
Finland X
France X
Germany X
Greece X
Hungary X
Ireland X
Italy X
Latvia X
Council of Europe Rec (99) 19
Rule 3: „Mediation in penal
matters should be a generally
available service”.
Availability of providers of Victim Offender Mediation Services according to degree
of geographic coverage
Country Nationwide availability of VOM services Regional availability of VOM s.
Lithuania X
Macedonia X
Montenegro X
The Netherlands X X
Northern Ireland X
Norway X
Poland X
Portugal X
Romania X
Russia X
Scotland X
Serbia X
Slovakia X
Slovenia X
Spain X
Sweden X
Switzerland X
Turkey X
Ukraine X
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
Victim Orientation:
• Belgium, Netherlands, Denmark, Finland, Sweden,
Romania
• Not necessarily directly linked to the criminal procedure
• Rarely guaranteed benefits of diversion or mitigation for
offender
• Resolving conflict between victim and offender, not
offender and state
• Lack of „incentives“ increases likelihood of genuinely
voluntary participation and avoids „tactical remorse“
• Reaffirmation of offences being conflicts between
offender and State?
Victim orientation vs. Offender orientation
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
Offender-Orientation:
• Reaching an agreement through a restorative
process or successfully delivering reparation has
effects on criminal process (diversion, mitigation,
court-sanction)
• Often limited to certain types of offences (offences
that can attract custodial sentences of up to 3 or
sometimes 5 years); “complainant’s crimes”
• Proportionality and due process over interests of
victim in more serious cases
• Access mostly dependent on judicial discretion
(„gatekeepers“)
Victim orientation vs. Offender orientation (2)
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
Conferencing
• Predominantly limited to localized projects in the field of Juvenile
Justice (Austria, Germany, Hungary, Ukraine, Latvia, Poland, Scotland,
Netherlands);
• Nationwide provision in Northern Ireland, Belgium, (England/Wales),
Ireland;
• Conferencing involves a wider range of participants, like for instance
family members, friends and importantly representatives from the local
community
• Experience with conferencing has been accompanied with high levels of
participant satisfaction and promising reoffending rates, most prominently
in Northern Ireland;
• Conferencing is a viable option for cases of more serious offending,
and could be a means for expanding the use of Restorative Processes
beyond the current concentration in the sphere of diverting less serious
offending from the formal criminal procedure.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
Reparation outside of Restorative Processes
• Approaches that seek to effect the delivery of reparation by
offenders to victims of crimes, or to take such reparation by
the offender into account in the criminal procedure
• Specific reparative court measures, like “Reparation Orders”
in the UK, or certain “educational measures” or “special
obligations” that require the making of apologies or
(non)financial reparation to victims;
• Condition of voluntariness of offender to deliver and victim to
receive reparation;
• Most common manifestation of reparation-oriented practices
outside of restorative processes lies in special provisions of
substantive and procedural criminal law that provides for
court diversion or sentence mitigation in the event of effective
repentance.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
Community Service
Predominantly used as:
• Alternative to custodial sentences/fines for cases
within a specified severity threshold;
• Standalone sanction introduced with the intention of
providing courts with alternatives to custody;
• Educational measure in the context of juvenile
justice as a condition for diversion from prosecution
or court punishment;
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
Does Community Service fall within the scope of
Restorative Justice?
• Rarely stated as possible element of restorative agreements
(Portugal, Slovenia, Northern Ireland);
• Rarely stated that offender performs the work for the victim
(Switzerland, Poland);
• Wright 1991: Central tenet of CS had originally lain in
restorative thinking, “with punitive elements of community
service orders […] [attending] its imposition […] only as by-
products of the offender’s commitment of time and effort”
• Working for charities, welfare institutions, persons in need or
public institutions can be regarded as “reparation” to the
community at large;
• Voluntariness questionable
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
Stages of Criminal Procedure at which RJ is available
Delivery of reparation
or successful
restorative process as
grounds for/condition
of pre-court diversion
Austria; Bosnia-Herzegovina; Belgium; Bulgaria;
Croatia; Czech Republic; England/Wales;
Estonia; Finland; Germany; Greece; Hungary;
Ireland; Italy; Latvia; Lithuania; Macedonia;
Montenegro; Netherlands; Northern Ireland;
Norway; Poland; Portugal; Romania; Russia;
Scotland; Serbia; Slovenia; Slovakia; Spain;
Sweden; Switzerland; Turkey; Ukraine
Delivery of reparation
or successful
restorative process as
ground for/condition of
court diversion
Austria; Bosnia-Herzegovina; Bulgaria; Croatia;
Czech Republic; Estonia; Germany; Greece;
Hungary; Italy; Latvia; Lithuania; Macedonia;
(Netherlands); Montenegro; Poland; Scotland;
Switzerland; Romania; Russia; Serbia; Slovenia;
Spain; Switzerland; Turkey; Ukraine
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
Court Sanctions with
restorative character
(including Community
Service)
Austria, Bosnia-Herzegovina, Bulgaria,
Croatia, Czech Republic, Denmark,
England/Wales, Estonia, France, Germany,
Greece, Hungary, Ireland, Italy, Latvia,
Lithuania, Macedonia, Montenegro, the
Netherlands, Norway, Poland, Portugal,
Romania, Russia, Serbia, Slovakia, Slovenia,
Spain, Switzerland, Turkey, Ukraine.
RJ as a ground for
sentence mitigation
Belgium; Croatia; Denmark; Estonia; Finland;
Germany; Greece; Ireland; Latvia; Lithuania;
Netherlands; Poland; Portugal; Romania;
Russia; Spain; Sweden; Switzerland; Turkey;
Ukraine
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
• Rule 56.2 of the European Prison Rules states that
“whenever possible, prison authorities shall use mechanisms
of restoration and mediation to resolve disputes with and
among prisoners.”
• Predominantly available only in individual institutions as pilot
projects (England/Wales, Bulgaria; France, Hungary; Italy;
Latvia; Netherlands; Norway; Poland, Scotland; Switzerland;
Ukraine); but nationwide in Belgium!
Use of RJ practices in
prison settings
Belgium; Bulgaria; Denmark; England/Wales;
Finland; France; Germany; Hungary; Italy;
Latvia; Netherlands; Norway; Poland; Portugal;
Scotland; Switzerland; Russia; Spain; Ukraine;
ERNST MORITZ ARNDT UNIVERSITÄT GREIFSWALD –
LEHRSTUHL FÜR KRIMINOLOGIEDr. Christine Morgenstern
Restorative Justice in Prison settings
• Poland, Portugal, Croatia, Germany: Legislative
provision is made for RJ in prisons, however are
largely defunct in practice as no sufficient services
are provided;
• The actual tendencies go beyond this:
• Restorative Justice a potentially promising strategy
for early release programmes, rehabilitation
programmes, as conditions to be met when released
on probation and as means of resolving conflicts
within prisons.
• The idea of Restorative Prisons
• Prisoners are making good to the society, in
particular in the nearby community setting
(community service etc.)
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
The Use of Restorative Justice in Practice
• Finland: 9.248 adult offenders and 4.311 juvenile offenders
referred to VOM in 2011;
• Norway: about two thousand young offenders are referred
to VOM each year. By contrast, only about 1/10th that
number of adults are referred;
• Austria: roughly 5-6% of all juveniles who come to the
attention of the prosecution service are referred to VOM.
There, the figures have in fact been declining in recent
years, from over 1.500 in 2005 to just under 1.300 in 2009;
• The declining trend can also be seen in Slovenia, where in
2004 just over 1.900 VOMs were conducted with adult
offenders and 344 with juvenile offenders – the respective
absolute figures for 2011 were 1.532 and 88 respectively.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
The Use of Restorative Justice in Practice (2)
• Slovenia is an interesting anomaly in Europe in that VOM plays a
greater role with adult offenders. The same applies to Hungary as well,
where in 2011 there were 3.874 VOMs with adult offenders, yet only
370 involving juvenile offenders;
• In England and Wales, 33% of all court sanctions are Referral Orders,
however the restorative value of Referral Orders remains to be
discussed, with a victim participation rate of only 12% and only 7% of
agreed reparation actually being made to the direct victim. Only
marginal role for adults;
• In Germany, 2% of all court interventions in 2010 were referrals to VOM
(2.700 in absolute terms), and a further 3.2% were Reparation
Measures; 1.000 VOMs at court level for adults in 2010; (but 41% of
juvenile court dispositions in 2012 were community service orders!,
mainly used as punishments, rarely as educational or restorative
measures, 49% of 14-17 years-old juveniles and 33% of 18-20 years-
old young adults were involved)
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
The Use of Restorative Justice in Practice (3)
• In the remainder of the countries who were able to provide data, the
annual case loads are low, and not representative for the whole country.
But the picture remains that they are used only sparingly;
• Portugal: In 2011, 90 requests for VOM involving adult offenders, 38
completed; 150 juvenile cases per year;
• Poland: 200-300 per year (juveniles); 960 successful VOMs involving
adults in 2010;
• Bulgaria: 2% of all court measures for juveniles involve RJ;
• Ukraine: 364 referrals of juveniles 2004-2011;
• Estonia: Use increasing (32 VOM in 2007, 417 in 2011). 2% of
diversionary measures in 2007, 8% in 2011.
• Latvia: 2005 there 51 VOMs, 2013 about 950; 23% court sanctions are
to community service
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
What are the reasons for low use of RJ in
practice?
Lack of will among judicial
gatekeepers to use it•f. ex. distrust in legitimacy of
mediators as deliverers of justice;„
•monopoly of conflict resolution“;
Inappropriate, unclear or lack of
legislative basis reduces faith in RJ;
•availability of other diversiona-ry
options that are more in line with
traditional understanding of
appropriate intervention;
•strict application of the principle of
legality
Austria; Bosnia-Herzegovina;
Bulgaria; Croatia; Czech
Republic; England/Wales;
Germany; Hungary; Italy;
Lithuania; Macedonia;
Montenegro; Poland;
Portugal; Romania; Russia;
Serbia; Slovenia; Spain;
Switzerland; Turkey; Ukraine.
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
Lack of information and
awareness of benefits of RJ
(among legislators, politicians,
judicial gatekeepers and general
public)
Bosnia/Herzegovina; Bulgaria;
Croatia; Czech Republic;
Greece; Hungary; Latvia;
Macedonia; Poland; Romania;
Russia; Serbia; Slovenia;
Slovakia; Switzerland; Turkey;
Ukraine;
Lack of will among legislators
and politicians (in turn
connected to issues of poor/lack
of statutory basis, funding, lack
of information/awareness and
punitive climate)
Bosnia/Herzegovina; Bulgaria;
Croatia; England/Wales;
Germany; Greece; Italy;
Ireland; Lithuania; Macedonia;
the Netherlands; Russia;
Slovakia; Switzerland; Turkey;
Ukraine;
Punitive ClimateBulgaria, England/Wales,
Lithuania, Poland, Switzerland.
Evaluation of RJ measures concerning
recidivism
• With few exceptions (England, US) almost no
methodologically satisfying research on
recidivism after RJ measures/processes
exists.
• Some further research (Germany, Northern
Ireland) indicates that RJ is able to reduce re-
offending, at least is not less favourable
compared to other non-custodial sanctions.
Evaluation in Germany
• There is no systematic and nationwide evaluation concerning later recidivism in Germany
• However, a few studies reveal that mediation is not less integrative than other juvenile justice measures.
• Successful cases of mediation had slightly lower re-offending rates than juveniles under traditional community sanctions (incidence rate: 1.4 : 2.1 further offences, r = .14,
see Dölling/Hartmann/Traulsen, MschrKrim 2002, p. 185 ff.)
• In the Lüneburg mediation scheme 56% of bodily injury cases (n = 91) with mediation recidivated vs. 86% of the control group (n = 60), see Busse 2001, p. 138.
Evaluation issues
• High rates of satisfaction among victims and offenders who have participated in restorative processes.
• So-called meta-analyses revealed that restorative justice programmes (VOM and conferencing) in terms of effectiveness achieved higher rates of satisfaction among both victims and offenders than traditional criminal justice responses, alsoperceptions of fairness.
• Restorative practices are often associated with promising effects on recidivism, as evidenced by a growing pool of research results
Evaluation issues
• Restorative justice does not have a negative impact on re-offending.
• Bonta et al. state: “Restorative justice interventions, on average, are associated with reductions in recidivism. The effects are small but they are significant. It is also clear that the more recent studies are producing larger effects.”
Evaluation issues
• A Study in Northern Ireland by Lyness/Tate (2011) found that court-ordered youth conferences held in 2008 were linked to lower re-offending rates (45.4%) compared to community-based disposals (53.5%) and youth discharged from custody (68.3%).
• Diversionary youth conferences had a rate of 29.4%, however there is a need for caution in weighting these findings due to selection-biases and offender-intrinsic characteristics.
Evaluation issues
• Sherman/Strang (2008) point out that restorative justice also has potential to reduce the costs of criminal justice.
• Restorative practices in the context of diversioncan reduce court case-loads and thus the expense involved in bringing offences to justice. Furthermore, reducing the number of offenders coming before the courts can have down-tariffing effects on overall sentencing practices, as has recently been experienced in England/Wales.
Evaluation issues
• “Deflationary” effects can spread across the entire sentencing spectrum and thus reduce the use of costly custodial sentences.
• Finally, the potential positive effects on recidivism can imply lower costs occurring to society at large in the future.
• Restorative justice is a promising and desireable strategy that achieves the best outcomes when restorative processes are involved
50
Country Evaluation of the implementation of VOM
programmes
Evaluation concerningrecidivism
Evaluation concerning satisfaction of victims
Juvenile J. Adult C.L. Juvenile J. Adult C.L. Juvenile J. Adult C.L.
Austria Yes Yes Yes Yes Yes Yes
Belgium Yes Yes No No Yes Yes
France Yes Yes No No Yes Yes
Germany Yes Yes Yes Yes Yes Yes
Greece Yes Yes No No No No
Italy No No No No No No
Nether-lands
Yes Yes Yes (HALT) No Yes Yes
Portugal Yes Yes No No No No
Spain Yes Yes No No No No
Switzer-land
Yes n/a No n/a Yes n/a
Turkey No No No No No No
51
Country Evaluation of VOM programmes – Imple-
mentation/outcomes of VOM meetings
Evaluation concerningrecidivism - results
Evaluation concerning satisfaction of victims -
results
Juvenile J. Adult C.L. Juvenile J. Adult C.L. Juvenile J. Adult C.L.
Austria ++ + ++ + ++ ++
Belgium ++ ++ n/a n/a ++ ++
France + + No inf. No inf. + +
Germany ++ + + + ++ +
Greece - - No inf. No inf. No inf. No inf.
Italy No inf. No inf. No inf. No inf. No inf. No inf.
Nether-lands
+ + +/- (HALT) No inf. ++ ++
Portugal +/- - No inf. No inf. No inf. No inf.
Spain No inf. No inf. No inf. No inf. No inf. No inf.
Switzer-land
+ n/a No inf. n/a ++ n/a
Turkey No inf. No inf. No inf. No inf. No inf. No inf.
++ very positive; + = positive; +/- = neutral/mixed outcomes; - negative outcomes)
ERNST MORITZ ARNDT UNIVERSITY OF GREIFSWALD –
DEPARTMENT OF CRIMINOLOGYFrieder Dünkel
Central Issues – Outlook
• Researching and expanding „Conferencing“ in
Europe;
• Researching and expanding the use of Restorative
Processes and Practices in prisons;
• The conflict between the paradigms of Penal
Populism and Restorative Justice;
• The need to „build social support“ for Restorative
Justice in the general public, among criminal justice
practitioners, legislators and politicians;
• The need for legislation, implementation, practice
and indeed research itself to be „evidence-based.“
ERNST MORITZ ARNDT UNIVERSITÄT GREIFSWALD –
LEHRSTUHL FÜR KRIMINOLOGIEDr. Christine Morgenstern
53
Thank you for your attention!
For further information:
Frieder Dünkel
Ernst-Moritz-Arndt-University
of Greifswald,
Department of Criminology
Domstr. 20,
D-17487 Greifswald/Germany
E-mail: duenkel@uni-greifswald.de
Internet: http://jura.uni-greifswald.de/duenkel
Tel.: ++49-(0)3834-862138