by Vasso Artinopoulou,
Ass. Professor of Criminology, Panteion University of Social and Political Sciences, Psychology Dept, Vice Rector. Email:
artinopoulou@gmail.com
Introduction
The article describes the implementation of victim offender mediation as provided by law in cases of family violence in Greece. Restorative justice practices such as victim offender mediation, family violence as a social phenomenon, and gender perspective are the key issues to be discussed in the present article. These are three complex issues; each one of them has its own grey zones both at theoretical and methodological level. We argue that pilot implementation of new institutions such as penal mediation should be under ongoing evaluation processes, in order for key problems to be addressed and dealt with in depth.
Family violence, an issue studied for more than 30 years, is defined as a kind of abuse and violation of human rights affecting the more depended members of the family, such as 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) and its aspects (physical, sexual, verbal, psychological family violence) have been widely recognized. Research into the field also discloses the hidden aspects of family violence such as victimization, offender’s profiles, as well as the post traumatic impact in victims. Family violence prevention strategies have been implemented at national, regional and community level and positively evaluated at their majority. According to the evaluation of the implementation of the Beijing Platform, most European countries have already reviewed their laws or made new laws on family violence. The last is the case of Greece, where the Parliament passed a new law on family violence in 2006, Law 3500/2006 on the Confrontation of Intra Family Violence and Related Issues, which was first implemented in 2007.
Restorative Justice as a current trend in criminology addresses the issues of dealing with the offences outside or in the borderlines of the criminal justice system, with the participation of offenders, victims and community, aiming both at healing the harm and/or damage done to the victims and at restoring and/or empowering the social bonds of the community. Restorative justice either as a social movement or as a trend in criminology has also been of interest to the European and international organizations and to the national authorities in Europe, USA, and Australia etc. A large number of restorative justice programmes have been implemented and positively evaluated for juveniles offenders, minor and property offences, and for the discharge of the criminal justice system work load (Bazemore, S.G. and Walgrave, L. 1999, Johnstone, G., 2003, Bazemore, G., and Schiff, M.. 2005, Fattah, E., and Parmentier, S., (eds) 2001, Roche, D. 2003, Braithwaite, J. 2002). Victim offender mediation, social mediation, alternative dispute resolutions schemes, peer mediation, conferences and other forms of conflict resolution strategies are among the restorative justice practices that have been used widely during the last 15 years. In Greece, penal mediation as a form of victim offender mediation is also provided by law in minor cases of family violence, as we will analyze in the following section.
Gender perspective is transparent in family violence as well as in restorative justice issues (Curtis- Fawley, S. & Daly, K. 2005, Hudson, B. 2002). Gender inequalities and imbalance affect the victimization potentialities and the risks in family and society as well (Daly, K. and Stubbs, J. 2006). Gender issues are also discussed in the present article, with particular emphasis on the debate concerning the appropriateness of victim offender mediation in family violence cases.
Last, but not least, some suggestions are included for the improvement of penal mediation in family violence cases and for further evaluation research needed.
I. Restorative Justice in Greece: an overview
The debate on Restorative Justice has recently opened in Greece, in legal and social cycles. The introduction of penal mediation, namely victim offender mediation caught the interest of judges, public prosecutors, lawyers, criminologists, and social workers. It is beyond this article’s scope to discuss the reasons why Greece has not corresponded (or better followed) to the restorative justice movement, shaped in Europe, USA and Australia. We suppose that both different legal systems and cultures are the key elements for adopting or not the demands and guidelines of trends and/or movements shaped abroad.
Restorative justice practices are widely implemented in the field of juveniles. Greece has special laws for juvenile delinquency, focusing mostly on social support and social services rather than in retributive and punitive treatment of juveniles. The law 3189/2003 on Reform of the Penal Legislation for Juveniles and other Regulations reassures this perspective by reducing reformatory measures for young offenders and introducing restorative justice practices, such as compensation, victim offender mediation and community services. Empowering the young offender’s responsibility, addressing the victim’s needs and the non stigmatizing processes are the main axes of the restorative justice practices on juvenile delinquency, implement in Greece. Increased responsibilities and duties have been assigned to the Probation Service for Juveniles, which supports the preparatory work, as well as the decision making process of the Juvenile Courts. However, there are permanent claims by professionals in the Juvenile Probation Services either to be trained as mediators or to collaborate with a social mediation center, where the reported cases will be dealt with. We suggest that both propositions have to be realized, depending on the number and the content of cases of youth delinquency and the needs of community as well.
Restorative justice practices for adults include victim’s compensation, community service and victim offender mediation. These measures are clearly provided by laws. But, at the level of implementation there are still some problems arising from the lack of social services’ coordination, the lack of evaluation and follow up strategies as well as the shortcomings in reporting system.
Alternative dispute resolutions (ADR), victim offender mediation by police officers in civil law cases and victim offender reconciliation are the most prevalent informal restorative justice practices in Greece, implement by lawyers during the penal process before trial. Mediation and/or reconciliation attempts can also be made by judges before trial.
Furthermore, there are restorative justice programmes implemented at local level, namely community mediation programmes (such as the Social Mediation Centre at the Municipality of Korydallos, West Attica, since 2000) and peer mediation programmes at certain high schools in Athens (such as Ionideios School Mediation Programme and Varvakeios Mediation Programme).
However, the need for strengthening and empowering the restorative justice practices is addressed not only by criminologists in Greece, but also by European Programmes on restorative justice, such as AGIS (European Forum for Restorative Justice, Restorative Justice: an agenda for Europe. Supporting the implementation of restorative justice in the South of Europe, Final Report 2008,
www.euroforumrj.org).
II. Victim Offender Mediation (VOM) – Penal Mediation in Greece
The victim offender mediation is properly described in the explanatory memorandum of the Council of Europe Recommendation No R (99)19 on Mediation in Penal Matters. It is also the Resolution 2002/12 on Basic principles on the use of restorative justice programmes in criminal matters of the Economic and Social Council, and moreover the Guidelines for a better implementation of the existing recommendation concerning mediation in penal matters, by the European Commission for the Efficiency of Justice (CEPEJ 2007) 13, which consist the basic European background forming the penal mediation of member states.
a. VOM in general.
Victim-offender mediation is a face to face meeting that usually involves the immediate parties (although there may be more than one offenders or more than one victims) meeting in the presence of a specially appointed mediator (who may be a volunteer or a paid professional). The mediation process may be conducted with both parties present (direct mediation) or if the victim is not willing to meet the offender, in separate meetings with each party (indirect mediation). There are many variants of this model (Miers, D. 2001, Wall, J. A., et all. 2001).
In some of these programmes the mediators are criminal justice personnel specially trained to carry out mediation, usually social workers or probation officers, but they may also be police officers, or staff of courts and public prosecutors offices. In some programmes, independent mediators (professionals or volunteers) without a judicial function are used.
Victim-offender mediation may also be run by a special agency or authority, such as police, youth justice, the probation service, the public prosecutor, the court or an independent community-based organisation. In the case of independent programmes, these may be based in organisations involved in victim support or in community-based treatment programmes for offenders, or may be set up specifically to carry out mediation. In some cases, the programme is run by a combination of agencies through an inter-agency steering committee.
This type of mediation may operate at any stage of a case. It may be associated with diversion from prosecution, or be in conjunction with a police caution, it can occur parallel to prosecution, constitute part of a sentence or happen after sentence. An important difference is whether the mediation will affect or not judicial decisions, as for example in cases where discontinuation of prosecution depends on an acceptable settlement, or the agreement is put to the court as a recommended order or sentence. The need for control or judicial supervision is much greater if the mediation has an impact on such decisions.
Some victim-offender mediation programmes apply to any type of offender, whereas others work only with juveniles or with adults, while a few work only with one type of offence, for instance shoplifting, robbery or violence offences. Some programmes are mainly aiming at minor offences or first-time offenders yet others target more serious offences or even repeat offenders.
b. VOM in Family Violence Law
Penal Mediation was introduced in Greece by the law on “The Confrontation of intra-family violence” (Law 3500/2006) which regulates several issues. Introducing mediation in penal matters was obligatory for Greece in order to harmonize its national law with the Council Framework Decision and European law. The family violence draft law was the last one before the deadline for the compliance of Greece expired. Besides that typical obligation, it was found from research done that mediation attempts in misdemeanor cases of family violence attempted by police officers or lawyers were informally implement to a large extent. Regulating the process and the rules of mediation was a step of legacy and legitimization of restorative justice in the greek criminal justice system.
The family violence law covers several shortcomings such as marital rape, dating violence, and the prohibition of children’s corporal punishment. It also recognizes the vulnerable situation of pregnant women, children and persons with special needs, either as victims or as witnesses of violence (article 6, par.3).
Civil consequences also derive from the penal law provisions. Violence constitutes evidence of marital breakdown, and bad exercise of children and juvenile custody.
The Law also foresees support measures for the victims. Social and psychological support services are provided to the victims by relevant agencies and organizations (Article 21). The victim’s right to be informed by the police authorities about the progress of the case in the criminal justice system is clearly mentioned. According to the Article 22, if the victim of domestic violence faces financial difficulties, the state must fund for his/her legal representation.
The obligation of reporting cases of family violence is also regulated by the new law. The role of teachers in reporting domestic violence is pointed out (Article 23). More specifically, it is defined that teachers, when informed of or realize that a crime of domestic violence is committed against a pupil, have the obligation to inform the director of the school unit, who thereafter reports the crime to the public prosecutor and the police.
However, the law excludes certain forms of violence (i.e. verbal, psychological) and intervenes partially to punish only the “more serious and repulsive forms of violence” (as reported in Paragraph 2 of the “rationale of the law report”). Furthermore, more structures of helping victims of family violence need to be created, as described in the law. Existing structures are not sufficient for meeting the needs of all the family violence victims. Although the law against family violence does mention supporting structures for the victims and therapy programmes for the offender, no such structures have been operating so far.
Victim offender mediation is provided only for misdemeanors. The General Prosecutor is engaged in bringing the victim and the offender of the family violence together, aiming at restoring the harm/damage done to the victim.
The articles 11-14 regulate the victim offender mediation process. Thus mediation is provided only in intimate violence misdemeanors (minors), offences of family violence (not in felonies). The Public Prosecutor is responsible for carrying out the mediation process. The last takes place before pressing charges or before trial and is used as part of the criminal process. Depending on mediation’s results the case is either fully dropped changing the proceedings (alternative/ diversion procedure) or drawn up following the formal criminal procedure.
More specifically, the steps of victim offender mediation are the following:
1. For the VOM procedure to begin, the consent of both victim and offender is required.
2. The offender declares his/her willingness:
a) to stop any further act of victimization,
b) to attend a therapeutic- counselling programme provided by a public health institution, and
c) to repair/ restore any harm/damage done to the victim of violence (compensation to the victim is also included).
3. If the actions mentioned so far have been done, then the public prosecutor drops the case, does not press any charges and withdraws the case from the records (art.43 par.1 and art. 47 C.C.P.). The criminal procedure stops.
4. If any of the previous conditions is violated for a three- year’s period, the case is brought back and the criminal procedure continues at the stage before mediation (as if mediation never took place).
5. No other mediation attempt is permitted for the same offence.
When discussing the legal regulation of penal mediation we postulate that introducing VOM in the legal tradition of the Greek criminal justice system - even only in cases of family violence – has been an innovation. However, at the same time a series of problems and contradictions have risen. The ‘grey zones’ of implementing penal mediation in family violence are:
- The lack of a wider dialogue on mediation and restorative justice.
Being aware that legal tradition changes slowly, the penal mediation and other possible changes within the Greek criminal justice system presuppose the dialogue on restorative justice issues and the implementation of pilot programmes as well. This did not happening in Greece prior to the legislation, it was rather an aftermath of the legislation and the introduction of VOM.
Professionals in the criminal justice system have distinct, clear and specialized roles (including the public prosecutor). They have - mostly - a legal and judicial background. The adoption of restorative justice (as a system of both values and practices) impedes the flexibility of the criminal justice professionals’ attitudes, ideology and training. So, there is a need not only for training, awareness campaigns and public dialogue in order to prepare the ground for implementing restorative justice programs, but also for social and criminological research to explore the “space” for restorative justice changes within the criminal justice system (e.g. complementary or alternative to the criminal justice system).
- The potential role’s diffusion when the public prosecutor acts as mediator.
Public Prosecutor’s profile is different from the mediator’s one. The Prosecutor is a judicial functionary, with a status similar to that of a judge. He/she represents the Guard of Law and stands through all the stages of the criminal procedure i.e. in the beginning and the end of the criminal process (police, investigation, trial, supervision of sentences). He/she acts under the principle of legality and has no discretionary power to charge a less serious crime than the one for which there is sufficient evidence. Charging the suspect with a less serious crime would be a violation of duty. In the event of VOM in family violence minor offences he /she acts under the principle of purposeness which is an exception of his/her duties.
From the other side, the mediator is a trained professional, who is familiar with social, psychological disciplines and human sciences. He/she should be recruited from all sectors of society and should generally possess a good understanding of local cultures and communities. A mediator should be able to demonstrate the sound judgment and inter-personal skills necessary for mediation. He/she normally acts under the Code of Practice and Ethics.
We suggest that the prosecutor needs to be either trained on mediation techniques and procedures or assisted by a mediator (trained on family mediation).
- The appropriateness of applying restorative justice programmes in family violence cases while adopting a gender perspective.
Family violence and abuse lies in gender inequalities and power imbalance. Gender and race discriminations are reflected in domestic violence cases. During the abusive relationship, the husband/ partner often apologizes and asks for forgiveness, promising that violence will stop and never happen again. He always says that this was the last time he was violent. However, research findings verify that the events of family violence escalate and usually won’t stop until the abused woman leaves her home and her husband.
In Greece, family violence research attests to these findings (Artinopoulou, 2006). So, the main questions are: Is the ‘trauma of victimization’ restorable through the offender’s forgiveness and reconciliation? Or, is there any space to restore the violent relationship? These are the questions raised by women’s rights organizations and NGO’s in Greece concerning the implementation of penal mediation in family violence minor offences. According to their views, the priority should (or must) lay in the protection of human dignity, in the victim’s rights and women΄s rights, as opposed to family, as a social institution. Feminists seem to insist on offender’s punishment by the criminal justice system in cases of domestic violence and sexual offences, pushing victim offender mediation in the margin of the criminal justice system. Such a debate has been reflected in press 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 against women, etc.
Trying to relate the issues of family violence, VOM and gender is like skating on thin ice. The debate on the appropriateness of Restorative Justice for partner, sexual and family violence, reflects the gap between restorative justice’s defenders and opponents. Research findings do address a number of risks of gender discrimination in restorative justice procedures (Daly & Stubbs, 2006:17), such as:
- Victim’s safety, reinforcing abusive behavior and possible re-Victimization,
- Gender power imbalance in mediation process (VOM, conferencing cycles), and
- regressing in making the issue of violence against women from a public issue to a private incident (re-privatization of the issue).
We argue that beyond the offender’s punishment, beyond the real and the symbolic functions of the criminal law, the victim’s rights and welfare status need to be protected. The plurality of alternative procedures and practices within (or in the borders of) the criminal justice system should offer the victims an opportunity to choose the appropriate programme/ intervention/ strategy of conflict resolution that meets their own needs.
If we are really interested in empowering the victims’ voice, we have the obligation to provide them with multiple choices. Dichotomies, such as retributive vs. restorative justice constitute a kind of pseudo-dilemmas rather than real questions.
III. VOM. Evaluation in family violence cases
The filtering of reporting family violence cases in Greece, the problems of implementing the mediation process, and the lack of follow up evaluation reports, are some of the problems in the evaluation of that type of restorative justice.
• Filtering the cases of family violence.
How many cases of family violence come into the criminal justice system, which of them are misdemeanors, liable to victim offender mediation, according to law provisions, as mentioned above?
We are aware of the hidden facets of family violence and women΄s abuse. The “dark” figure of that type of crime is high. Findings from a large-scale victimological research conducted in Greece show that only 9.4% of domestic violence incidents are reported to the police (Artinopoulou, V. 2006). These are mostly cases of physical and/or sexual abuse where the victims suffer severe injuries and for which hospital treatment was provided. Minor cases of family violence (misdemeanors) usually go unreported to the police, so the inputs in the criminal justice system are very few and restricted. Psychological and verbal abuse within the family is not included in the legal definition of family violence, according to Law 3500/06. However, these types of family violence are the most prevalent according to research findings in Greece: 1 out of 2 women of the population sample (56%) report having suffered these types of abuse from their spouse or partner (Artinopoulou, V, Farsedakis, J. 2006). These cases could have been appropriate for family mediation and/or victim offender mediation, but at the time no such opportunity exists.
• Problems in implementing VOM
VOM is a new institution and practice in the Greek criminal justice system. An interesting debate began amongst the judicial and legal cycles. Symposia and conferences have been held in Athens addressing the issue of penal mediation. A circular was published from the General Prosecutor of the Supreme Court (Areios Pagos), clarifying implementation issues arising from the application of the penal mediation to family violence cases. Furthermore, in each region of the country a prosecutor is specifically appointed for penal mediation. Findings from qualitative research conducted among public prosecutors (interviews) show that supporting attitudes are shaped more than opposing ones. The need for special training on penal mediation is also mentioned as well as the support of the mediation procedure by both experts and mediators. Addressing the content of the therapeutic/ counseling programmes for offenders and the need of accreditation is also emphasized.
• Is evaluation and follow up provided?
During the three-year period needed for completing the mediation case, ongoing evaluation research has to be provided for the offender, the victim and the family members as well. The impact of the therapeutic/ counseling programme on the offender’s behavior, the victim’s recovery and the restoration of the relationship are key issues to be evaluated. Follow up research -after the three-year period- will contribute to further evaluate the mediation process. At the time, no evaluation and follow up research is provided.
Given that, two years after the introduction of penal mediation in family violence minor offences, only very few cases have been reported to the police (high ‘dark’ figure) and even fewer have proceed to the next stage of criminal investigation. Victims of domestic violence do not trust the (punitive) responses of the criminal justice system. Two years after the law provision, a short number of family violence cases reported, are appropriate for Victim Offender Mediation, as described in the law. However, measures for better implementation of the penal mediation have been applied focusing mostly on the prosecutors’ awareness on penal mediation procedures. A code of practice is also necessary.
IV. Conclusion
It was rather ‘risky’ to introduce Victim Offender Mediation (VOM) for the first time in the family violence law of the Greek criminal justice system. The appropriateness of mediation and restorative justice in gender issues, such as family violence, has been questioned even in countries with a long tradition in restorative justice and alternative dispute resolutions programmes.
The compliance with European law constitutes a sine qua non condition for the harmonization of the legislation into the context of the European integration. However, preparation is needed before major changes can actually take place and the introduction of new institutions such as penal mediation in the criminal justice system is also crucial. Adopting restorative justice programmes at a National level presupposes research, preparation and information with regard to the possible changes both in the criminal justice system and in society as well.
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