Crime as conflict: Victim-Offender-Mediation in Germany

Transcription

1 Conference on Conflict and Complexity, Canterbury Crime as conflict: Good afternoon ladies and gentlemen, First of all I want to thank the organisers of this conference for giving me the chance to participate, especially Mr Burt who encouraged me to give a talk and made it very easy for me to find accommodation. Please allow me to introduce myself to those I haven`t had the chance to talk to yet. My name is Ulrike Tabbert. I work as a public prosecutor at the prosecution office in Schwerin in the northern part of Germany and I`m a trained mediator working in the field of family mediation. I am going to speak about Restorative Justice (RJ) in Germany where it is called Täter-Opfer-Ausgleich / Victim-Offender- Mediation (VOM). My talk is structured as follows: First I am going to talk about the legal basis for VOM in Germany, followed by figures and statistics. Thirdly I will talk about the possible reasons why VOM is still meeting reservations among practitioners in Germany and finally I am going to tell you about the number of VOM cases victim-offender-dealt with by mediators in Stralsund and Schwerin, both cities in Mecklenburg-Western Pomerania, in I want to emphasise that all views and opinions I will express are my private ones and not in any way official statements from my office. Restorative Justice, to attempt a definition, is used in many countries, and it has often been found that offenders, when they meet their victims, gain an understanding of the harm they have caused and feel empathy with the victim. It offers victims a 1

2 chance to be involved in the criminal justice process, and it gives as much importance to the process as to the outcome. The idea of RJ was first introduced into German law in and since then the rights of people who fell victim to criminal offences have received more and more attention. New articles have been introduced to support interests of victims and today the legislative structure concerning RJ is as follows: The German criminal law is regulated by two main codes. We differentiate between the criminal code (which defines crime and how it will be sentenced) and the code of criminal procedure (how a criminal case has to be dealt with). Let me give you a short explanation of our court system: Minor cases and felonies with a maximum sentence of 4 years are dealt with at the district court, all other felonies are dealt with at the regional court except for example terrorist felonies. These cases are dealt with at the regional appeal court. The idea of RJ was introduced into the criminal code in , saying that a successful VOM can mitigate the sentence. Before that VOM had been known in the code of criminal procedure for juvenile offenders since The Federal Supreme Court decided in , most recently confirmed in its decision of , under which circumstances a VOM can lead to a mitigation of sentence. The Federal Supreme Court requires a communicative process between victim and offender either directly or as an indirect mediation, also called shuttle mediation. This process has to be aiming at a broad, far reaching reparation for the victim s loss and harm. The offender has to admit guilt as a prerequisite for reparation and to face up to the impact of his action. Even though a VOM can be used in almost all criminal cases, it is mostly applied in cases of minor delinquency aiming to discontinue a case. This option was introduced into the code of criminal procedure 2 in When VOM is carried out successfully, this gives prosecutors the opportunity to decide that 1 10 JGG (Juvenile Court Law), introduced on a StGB (Criminal Code), introduced on , 153 a StPO (Criminal Procedure Code) was amended on and VOM was added to the list 3 BGH (Federal Supreme Court), 1. Strafsenat, decision of file number:1 StR 405/02 4 BGH (Federal Supreme Court), 2. Strafsenat, decision of file number: 2 StR 561/07 2

3 it is no longer "in the public interest" to proceed, and as a result the case can be dropped. Most of the figures I have used for the following diagrams are taken from the report of the Ministry of Justice called Developing victim-offender-mediation published in 2005 evaluating the decade of VOM from 1993 to Number of VOM-cases ( ) Western Germany Eastern Germany Germany As shown in the first diagram the total number of VOM-cases varies over the years; in Germany as a whole it rose until 1999, then fell, but in 2002 started to rise again. The green line shows the number of cases in Germany, the red line stands for Western Germany and the yellow line for Eastern Germany including my home region of Mecklenburg-Western Pomerania. Here is little sign of the recent increase seen in the West, but this may change, as we shall see 6. Starting in 1993 with 1238 cases in Germany, we had 4465 cases in In Western Germany VOM is more used than in the Eastern part 6. 5 Täter-Opfer-Ausgleich in der Entwicklung (Developing VOM), published by the Ministry of Justice, Germany, Berlin 2005, ISBN X 6 See page 10 3

4 At which stage of a trial VOM is initiated?(2002) during preliminary investigation after filing a charge during main trial after main trial The decision to use a VOM can be made at all stages of a criminal case, mostly before charging an offender, provided that the accused admits involvement or guilt. As you can see from this diagram most cases are referred to victim-offender-mediators during preliminary investigation. Only in 0.8 per cent of the cases was a VOM initiated during a main trial in Who initiates VOM? (2002) Total number of cases: 2977 prosecution office juvenile court assistance offender victim judges police others 4

5 Most cases referred to victim-offender-mediators are chosen by public prosecutors during preliminary investigations as can be seen on this chart. Of all cases referred to mediation prosecutors refer 79.6 per. Other persons or institutions who decide what cases are suitable for VOM are juvenile court assistants with 4.8 per cent, offenders with 3.6 per cent, victims in 0.8 per cent of all cases and judges with 1.6 per cent. What offences are dealt with in VOM? (2002) bodily harm damage to property theft or fraud extortion (felonies) The so called "classical offences" dealt with in VOM are physical injury or damage to property. As you can see from the chart 46.7 per cent of all cases dealt with in VOM involve physical injury followed by 12.2 per cent involving damage to property. In 2002, 2096 cases in VOM dealt with physical injury followed by 546 cases dealing with damage to property. Other cases dealt with theft and fraud as misdemeanours or extortion as a felony. 5

6 How successful is VOM? (2002) Total number of cases: 2098 consensual agreement partial agreement no agreement or break off It is also interesting to know how successful VOM is. In Germany the main criterion for success is reaching agreement. In 80.2 per cent of all cases VOM ends with a consensual agreement, only 15.5 per cent are unsuccessful. On this basis, as a conclusion from this diagram we can say that VOM is successful. My opinion is that the success of VOM depends on the extent to which the case has escalated over time. Long lasting neighbourhood conflicts are difficult to resolve whereas cases where victim and offender had not had a relationship of any kind before the offence often have a successful outcome in VOM. 6

7 How successful is VOM? (2002) Total number of cases: 1339 agreement not fulfilled agreement partially fulfilled agreement fulfilled It is worth examining whether the agreement reached in VOM was fulfilled. As we can see in this diagram 82.3 per cent of all agreements were fulfilled. Of the total number of cases of 1339 only in 3.8 per cent of the cases the agreement was not fulfilled. Duration of VOM-cases in weeks ( ) A VOM lasts on average 7 weeks between referring the case to a victim-offender-mediator and giving it back to the initiating 7

8 agency, mostly the prosecution office. That is less than a couple of months and with the successful outcome of 80.2 per cent in mind it is definitely worth thinking about when dealing with a criminal case. But why does VOM still meet reservations among prosecutors? To answer this question we should have a closer look at the everyday work and workload of a prosecutor. At my office in Schwerin every prosecutor has to deal with 100 to 200, sometimes 300 cases per month depending on the department he or she is working in. Referring a case to a victim-offendermediator means reading the file, filling in a form and sending the file away for about 2 months or sometimes longer, depending on the case. In Schwerin mediators of an NGO mediate the cases. Before they can start they have to report the case to the General Prosecution Office of Mecklenburg-Western Pomerania and apply for money. They can only begin working on the case when they get a favourable reply from the General Prosecution Office, which they get as a rule. When the mediator returns the file to the prosecution office the prosecutor has to read the file again and to decide whether the agreement meets his expectations so that he can dismiss the case or whether the VOM was not successful and he has to prosecute. The latter means he does the work he could have done 2 months before and has to read the whole file again. If he has this experience twice or more often his willingness to refer cases to VOM diminishes because prosecutors are not only assessed by the number of cases they finish but also by the time they need to finish them. Nowadays the caseload is increasing and many extra tasks are transferred to prosecutors such as executive duties and paperwork. Every extra task means less time for a case and consequently for VOM. Nobody can predict the outcome of a VOM and foresee if it is successful, so every decision to use VOM involves the possibility of having more work in the end. All the more considering that a confession is a prerequisite of VOM. And a confession tempts a prosecutor to prosecute. When a prosecutor s work is assessed, a successful mediation counts for as much as a prosecution. But a case has to be concluded either by a prosecution or a successful mediation before it counts. 8

9 As a result of these observations let us finally have a look at some figures that compare two prosecution offices in Mecklenburg- Western Pomerania, one in Stralsund and the other in Schwerin. Comparing Stralsund and Schwerin Number of VOM-cases (2007) VOM-cases: 14 Schwerin VOM-cases: VOM total of offenders Stralsund In 2007 the prosecution office in Stralsund had to deal with cases. Of these they referred only a tiny proportion of 14 cases to a victim-offender-mediator. The same picture in Schwerin: My office had to deal with cases and we also referred only 14 cases to a victim-offender-mediator. To round the picture off an NGO in Hannover called The Scales (Die Waage) had to deal with 600 cases which were referred to them in I have to add that 8 mediators work for the NGO in Hannover whereas 2 mediators work part time for each NGO in Stralsund and Schwerin. 9

10 Comparing Stralsund and Schwerin Development of VOM ( ) Stralsund Schwerin To show the development of VOM in Stralsund and Schwerin let s have a look at the last diagram which shows that it is justified to speak of a renaissance of VOM in Mecklenburg-Western Pomerania due to the fact that our Minister of Justice wants to stimulate VOM. Therefore all public prosecutors are being asked to have a closer look at their cases if they are suitable for VOM. This renaissance of VOM is developing in parallel with mediation by judges at court in pending civil cases. I want to emphasize that there has been no change in the way the prosecutors are assessed. This shows how decision-making can be affected by administrative procedures and the criteria for assessing the performance of the decision-makers. So we can only have restrained optimism and I am eager to know what the future has in store for VOM in Germany. Thank you for your kind attention. Canterbury,