VICTIM OFFENDER MEDIATION VICTIM OFFENDER MEDIATION IN FAMILY VIOLENCE CASES: THE IN FAMILY VIOLENCE CASES: THE

GREEK EXPERIENCEGREEK EXPERIENCE

by Vasso Artinopoulou, by Vasso Artinopoulou, Ass. Prof. of Criminology, Panteion Ass. Prof. of Criminology, Panteion

University, AthensUniversity, Athens

European best practices of restorative justice European best practices of restorative justice in the criminal procedure in the criminal procedure 27-29 April 2009 27-29 April 2009HUNGARY, BudapestHUNGARY, Budapest

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Topics of discussion Topics of discussion

The legal provisions of mediation The legal provisions of mediation The role of the public prosecutor as The role of the public prosecutor as

mediatormediator The appropriateness of implementing VOM The appropriateness of implementing VOM

in in

family violence cases (including gender family violence cases (including gender issues) issues)

The evaluation of VOM in such cases The evaluation of VOM in such cases further suggestions to improve practice further suggestions to improve practice

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Restorative justice in Restorative justice in GreeceGreece

Juveniles (ADR schemes) Juveniles (ADR schemes) Adults (VOM in family violence cases)Adults (VOM in family violence cases) Informal practices of VOM before trial Informal practices of VOM before trial

(informal mediation by police officers (informal mediation by police officers in civil law cases, informal ADR by in civil law cases, informal ADR by lawyers, attempts on victim offender lawyers, attempts on victim offender reconciliation by judge before trial) reconciliation by judge before trial)

Mediation pilot programs (peer Mediation pilot programs (peer mediation –school mediation, mediation –school mediation, community mediation)community mediation)

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Legal backgroundLegal background Council of Europe Recommendations Council of Europe Recommendations

(R(99)19, (R(99)19, Mediation in penal mattersMediation in penal matters Resolution 2002/12 Resolution 2002/12 Basic principles on the Basic principles on the

use of restorative justice programs in use of restorative justice programs in criminal matters, criminal matters, Economic and Social Economic and Social Council, Resolutions and decisions adopted Council, Resolutions and decisions adopted by the Economic and Social Council and its by the Economic and Social Council and its substantive session of 2002substantive session of 2002

European Commission for the Efficiency of European Commission for the Efficiency of Justice (CEPEJ 2007) 13, Justice (CEPEJ 2007) 13, Guidelines for a Guidelines for a better implementation of the existing better implementation of the existing recommendation concerning mediation in recommendation concerning mediation in penal matters. penal matters.

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The Family Violence Law The Family Violence Law (1)(1)

The new Law on “The Confrontation of intra-family violence” The new Law on “The Confrontation of intra-family violence” (Law 3500/2006) (Law 3500/2006) regulates several issues. It covers several regulates several issues. It covers several shortcomings such as marital rape, dating violence, and the shortcomings such as marital rape, dating violence, and the prohibition of children’s corporal punishment. It also prohibition of children’s corporal punishment. It also recognizes the vulnerable situation of pregnant women, recognizes the vulnerable situation of pregnant women, children and persons with special needs, either as victims or children and persons with special needs, either as victims or as witnessesas witnesses of violence (article 6, par.3).of violence (article 6, par.3).

CiCivil consequencesvil consequences derive derive from the penal law provisions. from the penal law provisions. Violence constitutes evidence of marriage breakdown, and Violence constitutes evidence of marriage breakdown, and bad exercise of children and juveniles custody. bad exercise of children and juveniles custody.

The Law also foresees support measures for the victims. The Law also foresees support measures for the victims. Social and psychological support services are provided toSocial and psychological support services are provided to the victims by relevant agencies and organizations (Article the victims by relevant agencies and organizations (Article 21). The victim’s right to 21). The victim’s right to be be informed by the police informed by the police authorities about the progress of the case in the criminal authorities about the progress of the case in the criminal justice systemjustice system is clearly mentioned is clearly mentioned. According to the Article . According to the Article 22, if the victim of domestic violence is in financial 22, if the victim of domestic violence is in financial difficulties, the state funds for his/her legal representation.difficulties, the state funds for his/her legal representation.

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The Family Violence Law The Family Violence Law (2) (2)

The obligation of reporting cases of family violence is The obligation of reporting cases of family violence is regulated by the new law. The role of teachers in reporting regulated by the new law. The role of teachers in reporting domestic violence is pointed out (Article 23). More domestic violence is pointed out (Article 23). More specifically, it is defined that teachers, when informed or specifically, it is defined that teachers, when informed or realize that a crime of domestic violence is committed realize that a crime of domestic violence is committed against a pupil, have the obligation to inform the director of against a pupil, have the obligation to inform the director of the school unit, whothe school unit, who thereafter reports the crime to the thereafter reports the crime to the public prosecutor and the police.public prosecutor and the police.However, the law excludes certain forms of violence (i.e. However, the law excludes certain forms of violence (i.e. verbal, psychological) and intervenes partially to punish only verbal, psychological) and intervenes partially to punish only the “more serious and repulsive forms of violence” (as the “more serious and repulsive forms of violence” (as reported in Paragraph 2 of the “rationale of the law report”). reported in Paragraph 2 of the “rationale of the law report”). Furthermore, more structures of helping victims of family Furthermore, more structures of helping victims of family violence need to be created, as described in the law. Existing violence need to be created, as described in the law. Existing structures are not sufficient for meeting the needs of all the structures are not sufficient for meeting the needs of all the family violence victims. Although family violence law family violence victims. Although family violence law doesdoes mention supporting structures for the victims and therapy mention supporting structures for the victims and therapy programs for the offender, no such structures have been programs for the offender, no such structures have been operated so far. operated so far.

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Penal mediation (VOM) in Penal mediation (VOM) in the family violence lawthe family violence law

A new institution is introduced in the A new institution is introduced in the Greek criminal justice systemGreek criminal justice system: t: the he Victim Offender Mediation (VOM) Victim Offender Mediation (VOM) for misdemeanors. for misdemeanors. The General The General Prosecutor is engaged to bring the Prosecutor is engaged to bring the victim and the offender of the family victim and the offender of the family violence committed offence together, violence committed offence together, aiming at the restoration of the aiming at the restoration of the harm/damage done to the victim. harm/damage done to the victim.

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Why mediation in a family Why mediation in a family violence violence law?law?

Introducing mediation in penal Introducing mediation in penal matters was obligatory for Greece in matters was obligatory for Greece in order to harmonize the national law order to harmonize the national law with the Council Framework with the Council Framework Decision and the European law. The Decision and the European law. The family violence draft law was the last family violence draft law was the last one before the deadline for the one before the deadline for the compliance of Greece expired. compliance of Greece expired.

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When VOM is provided (art. When VOM is provided (art. 11-14 of Law 3500/2006)11-14 of Law 3500/2006)

1.1. ONLY in intimate violence misdemeanors (minors), ONLY in intimate violence misdemeanors (minors), offences of family violence (not in felonies)offences of family violence (not in felonies)

2.2. The Public Prosecutor is responsible for carrying The Public Prosecutor is responsible for carrying out the VOM.out the VOM.

3.3. VOM takes place before pressing chargesVOM takes place before pressing charges or or before trial.before trial.

4.4. VOM is used as part of the criminal process. VOM is used as part of the criminal process. Depending on mediation’s results the case is Depending on mediation’s results the case is either fully dropped changing the proceedings either fully dropped changing the proceedings (alternative/ diversion procedure) or drawn up (alternative/ diversion procedure) or drawn up following the formal criminal procedure. following the formal criminal procedure.

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Steps of Steps of VOMVOM (1) (1)

1.1. For the VOM proceFor the VOM procedure to begin,dure to begin, the the consent of bothconsent of both the victim and the the victim and the offender is required.offender is required.

2.2. The offender declares his/her willingness: The offender declares his/her willingness: a)a) to stop any further act of victimization, to stop any further act of victimization,

b)b) to attend a therapeutic- counselling program to attend a therapeutic- counselling program provided by a public health institution, and provided by a public health institution, and

c)c) to repair/ restore any harm/damage done to to repair/ restore any harm/damage done to the victim of violence (compensation to the the victim of violence (compensation to the victim is also included).victim is also included).

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Steps of VOM (2)Steps of VOM (2)

3.3. If the actions mentioned so far have been If the actions mentioned so far have been done, then the public prosecutor drops the done, then the public prosecutor drops the case, does not press any charges and case, does not press any charges and withdraws the case from the records (art.43 withdraws the case from the records (art.43 par.1 and art. 47 C.C.P.). Thepar.1 and art. 47 C.C.P.). The criminal criminal procedure stops.procedure stops.

4.4. I If any of the previous conditions is violated f any of the previous conditions is violated for a three- years period, the case is broughtfor a three- years period, the case is brought back and the criminal procedure continues back and the criminal procedure continues at the stage before mediation (as if at the stage before mediation (as if mediation has never happened). mediation has never happened).

5.5. No other mediation attempt is permitted for No other mediation attempt is permitted for the same offence. the same offence.

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VOM in the family violence VOM in the family violence law: Innovations or law: Innovations or

problems? problems?

Introducing VOM in the legal Introducing VOM in the legal tradition of the Greek criminal tradition of the Greek criminal justice system - even only in cases justice system - even only in cases of family violence – has been an of family violence – has been an innovation. However, a series of innovation. However, a series of problems and contradictions have problems and contradictions have risen, such as:risen, such as:

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1. Introducing VOM in the Greek 1. Introducing VOM in the Greek criminal justice system: pre-conditions criminal justice system: pre-conditions

of implementationof implementation

Being aware that legal tradition changes slowly, the penal mediation Being aware that legal tradition changes slowly, the penal mediation and other possible changes within the Greek criminal justice system and other possible changes within the Greek criminal justice system presuppose the dialogue on restorative justice issues and the presuppose the dialogue on restorative justice issues and the implementation of pilot programs as well. implementation of pilot programs as well. That was not happening in Greece prior to the legislation, but it was That was not happening in Greece prior to the legislation, but it was an aftermath of the legislation and the introduction of VOM.an aftermath of the legislation and the introduction of VOM.

Professionals in the criminal justice system have distinct, clear and Professionals in the criminal justice system have distinct, clear and

specialized roles (including the public prosecutor). They have - specialized roles (including the public prosecutor). They have - mostly - a legal and judicial background. The adoption of restorative mostly - a legal and judicial background. The adoption of restorative justice (as a system of both values and practices) impedesjustice (as a system of both values and practices) impedes the the flexibility of the criminal justice professionals’ attitudes, ideology flexibility of the criminal justice professionals’ attitudes, ideology and training. and training.

Need for training, awareness campaigns and public dialogue in order Need for training, awareness campaigns and public dialogue in order to prepare the ground for implementing restorative justice programs. to prepare the ground for implementing restorative justice programs.

Need for social and criminological research to explore the “space” Need for social and criminological research to explore the “space” for restorative justice changes within the criminal justice system for restorative justice changes within the criminal justice system (e.g. complementary or alternative to the criminal justice system).(e.g. complementary or alternative to the criminal justice system).

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2. The prosecutor as mediator: Roles’ 2. The prosecutor as mediator: Roles’ diffusion?diffusion?

A prosecutor is a A prosecutor is a judicial judicial functionary, with status similar tofunctionary, with status similar to that of a judge. He/she that of a judge. He/she represents the Guard of Law.represents the Guard of Law.

He/she stands at all the stages of He/she stands at all the stages of the criminal procedure, at the the criminal procedure, at the beginning and the end of the beginning and the end of the criminal process (police, criminal process (police, investigation, trial, supervision of investigation, trial, supervision of sentences) sentences)

He/she acts under the principle of He/she acts under the principle of legality. He/she has legality. He/she has no no discretionary power to charge a discretionary power to charge a less serious crime than the one less serious crime than the one for which there is sufficient for which there is sufficient evidence. Charging the suspect evidence. Charging the suspect with a less serious crime would be with a less serious crime would be a violation of duty. a violation of duty.

In the event of VOM in family In the event of VOM in family violence minor offences he acts violence minor offences he acts under the principle of under the principle of purposeness which is an purposeness which is an exception of his/her duties. exception of his/her duties.

A mediator is a trained A mediator is a trained professional, who is professional, who is familiar with social, familiar with social, psychological disciplines psychological disciplines and human sciences. and human sciences.

A mediator should be A mediator should be recruited from all sectors recruited from all sectors of society and should of society and should generally possess a good generally possess a good understanding of local understanding of local cultures and communities.cultures and communities.

A mediator should be able A mediator should be able to demonstrate the sound to demonstrate the sound judgment and inter-judgment and inter-personal skills necessary personal skills necessary to mediation.to mediation.

He/she normally acts He/she normally acts under the Code of Practice under the Code of Practice and Ethicsand Ethics

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SuggestionSuggestion

We suggest that the prosecutor We suggest that the prosecutor needs to be either trained on needs to be either trained on mediation techniques and mediation techniques and procedures or assisted by a mediator procedures or assisted by a mediator (trained on family mediation). (trained on family mediation).

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Can family violence victimization be Can family violence victimization be restored through VOMrestored through VOM? A gender ? A gender

perspective perspective

Why a gender perspective? (the grounds of the question)Why a gender perspective? (the grounds of the question)Family violence and abuse lies inFamily violence and abuse lies in gender inequalities gender inequalities and power imbalance. Gender and race and power imbalance. Gender and race discriminations are reflected in domestic violence discriminations are reflected in domestic violence cases. During the abusivecases. During the abusive relationship, the husband/ relationship, the husband/ partner often apologizes and asks for forgiveness, partner often apologizes and asks for forgiveness, promising that violence will stop and never happenpromising that violence will stop and never happen again. He always says that this is the last time he is again. He always says that this is the last time he is violent ..etc. However, research findings verify that the violent ..etc. However, research findings verify that the events of family violence escalate and don’t stop until events of family violence escalate and don’t stop until the abused woman leaves home and husband. the abused woman leaves home and husband.

In Greece, family violence research attests to these In Greece, family violence research attests to these findings. findings.

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3. 3. Can family violence victimization be Can family violence victimization be restored through VOM? A gender restored through VOM? A gender

perspectiveperspective (2) (2)Can we apply restorative programs and victim offender mediation to Can we apply restorative programs and victim offender mediation to

such cases ofsuch cases ofvictimization? victimization? Is the ‘trauma of victimization’ restorable through the offender’s Is the ‘trauma of victimization’ restorable through the offender’s

forgiveness and forgiveness and reconciliation? reconciliation? Is there any space to restore the violent relationship? Is there any space to restore the violent relationship?

These are some of the questions raised byThese are some of the questions raised by women’s rights organizations women’s rights organizations and NGO’s in Greece concerning the implementation of penal and NGO’s in Greece concerning the implementation of penal mediation in family violence minor offences. According to their mediation in family violence minor offences. According to their views, the priority is (or must be) the protection of human dignity, views, the priority is (or must be) the protection of human dignity, victim’s rights and women's rights, as opposed to family, as a social victim’s rights and women's rights, as opposed to family, as a social institution. Feminists seem to insist on offender’s punishment byinstitution. Feminists seem to insist on offender’s punishment by the criminal justice system in cases of domestic violence and sexual the criminal justice system in cases of domestic violence and sexual offences, pushing victim offender mediation in the margin of the offences, pushing victim offender mediation in the margin of the criminal justice system. Such a debate has been criminal justice system. Such a debate has been reflected in the reflected in the press releases and publications of organizationspress releases and publications of organizations such as the such as the National Committee on Human Rights, the Feminist Network, the National Committee on Human Rights, the Feminist Network, the Greek Department of International Amnesty, the Greek Observatory Greek Department of International Amnesty, the Greek Observatory for Violence against women, etc.for Violence against women, etc.

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Family violence, VOM and Family violence, VOM and gender. Skating on thin gender. Skating on thin

ice? ice? There is a debate on the appropriateness of Restorative There is a debate on the appropriateness of Restorative

Justice for partner, sexual and family violence, reflecting the Justice for partner, sexual and family violence, reflecting the gap between restorative justice’s defendersgap between restorative justice’s defenders and opponents. and opponents.

Research findings addressed a number of risks of gender Research findings addressed a number of risks of gender discrimination in discrimination in

restorative justice procedures, such as:restorative justice procedures, such as: victim’s safety, reinforcing abusive behavior and possible victim’s safety, reinforcing abusive behavior and possible

re- re- victimizationvictimization gender power imbalance in mediation process (VOM, gender power imbalance in mediation process (VOM,

conferencing cycles)conferencing cycles) regressing in making the issue of violence against women regressing in making the issue of violence against women

from a from a public issue to a private incident (re-privatization of the public issue to a private incident (re-privatization of the

issue) issue)

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Setting criteriaSetting criteria

We suggest that beyond the offender’s punishment, We suggest that beyond the offender’s punishment, beyond the real and the symbolic functions of the beyond the real and the symbolic functions of the criminal law, the victim’s rights and welfare status criminal law, the victim’s rights and welfare status need to be protected. The plurality of alternative need to be protected. The plurality of alternative procedures andprocedures and practices within (or in the borders practices within (or in the borders of) the criminal justice system should offer the of) the criminal justice system should offer the victims an opportunityvictims an opportunity to choose the appropriate to choose the appropriate program/ intervention/ strategy of conflict program/ intervention/ strategy of conflict resolution to meet their own needs. resolution to meet their own needs. If we are really interested in empowering the If we are really interested in empowering the victims’ voice, we have the obligation to provide victims’ voice, we have the obligation to provide them with multiple choices. Dichotomies, such as them with multiple choices. Dichotomies, such as retributive vs. restorative justice constituteretributive vs. restorative justice constitute pseudo-pseudo-dilemmas rather than real questions.dilemmas rather than real questions.

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VOM Evaluation in family VOM Evaluation in family violence cases violence cases

Filtering the cases of family violence. Filtering the cases of family violence.

How many cases of family violence How many cases of family violence come into the criminal justice system, come into the criminal justice system, which of them are misdemeanors, which of them are misdemeanors, liable to victim offender mediation, liable to victim offender mediation, according to law provisions, as according to law provisions, as mentioned above? mentioned above?

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a. Filtering the casesa. Filtering the cases

We are aware of the hidden facets of family violence and women's We are aware of the hidden facets of family violence and women's abuse. The abuse. The

““dark” figure of that type of crime is high. dark” figure of that type of crime is high. Findings from A large-scale victimological research conducted Findings from A large-scale victimological research conducted

in Greece show that only 9.4% of domestic violence incidents in Greece show that only 9.4% of domestic violence incidents are reported to the police. These are mostly cases of physical are reported to the police. These are mostly cases of physical and/or sexual abuse the victims suffering severe injuries and and/or sexual abuse the victims suffering severe injuries and for which hospital treatment was provided. for which hospital treatment was provided. Minor cases of Minor cases of family violence (misdemeanors) are not usually reported to the family violence (misdemeanors) are not usually reported to the police, so the inputs in the criminal justice system are very few police, so the inputs in the criminal justice system are very few and restrictedand restricted. .

Psychological and verbal abuse within the family are not Psychological and verbal abuse within the family are not included in the legal definition of family violence, according to included in the legal definition of family violence, according to Law 3500/06. However, these types of family violence are the Law 3500/06. However, these types of family violence are the most prevalent based on research findings in Greece: 1 out of 2 most prevalent based on research findings in Greece: 1 out of 2 women of the population sample (56%) reportwomen of the population sample (56%) report to have suffered to have suffered these forms of abuse from her spouse or partner. These cases these forms of abuse from her spouse or partner. These cases could have been appropriate for family mediation and/or victim could have been appropriate for family mediation and/or victim offender mediation, but at the time nooffender mediation, but at the time no such opportunity exists. such opportunity exists.

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b. Problems in b. Problems in implementing VOMimplementing VOM

VOM is a new institution and practice in the Greek criminal VOM is a new institution and practice in the Greek criminal justice system. An interesting debate started amongstjustice system. An interesting debate started amongst the the judicial and legal circles. Symposia and conferences have been judicial and legal circles. Symposia and conferences have been held in Athens addressing the issue of penal mediation. A held in Athens addressing the issue of penal mediation. A circular was published from the General Prosecutor of the circular was published from the General Prosecutor of the Supreme Court (Areios Pagos), clarifying the implementation Supreme Court (Areios Pagos), clarifying the implementation issues arising from the application of the penal mediation to issues arising from the application of the penal mediation to family violence cases. Furthermore, in each region of the family violence cases. Furthermore, in each region of the country acountry a prosecutor is specifically appointed for penal prosecutor is specifically appointed for penal mediation. mediation.

Findings from qualitative research conducted amongst public Findings from qualitative research conducted amongst public prosecutors (interviews) show that supporting attitudes are prosecutors (interviews) show that supporting attitudes are shaped more than reserving ones. shaped more than reserving ones.

The need for special training on penal mediation is also The need for special training on penal mediation is also mentioned as well as the support of the mediation procedure mentioned as well as the support of the mediation procedure by both experts and mediators. by both experts and mediators.

Addressing the content of the therapeutic/ counseling Addressing the content of the therapeutic/ counseling programs for offenders and the need of accreditation is also programs for offenders and the need of accreditation is also emphasized. emphasized.

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c. Is evaluation and follow c. Is evaluation and follow up provided?up provided?

During the three-yearDuring the three-year period needed for period needed for completing the mediation case, ongoing completing the mediation case, ongoing evaluation research has to be provided for the evaluation research has to be provided for the offender, the victim and the family members as offender, the victim and the family members as well. The impact of the therapeutic/ counseling well. The impact of the therapeutic/ counseling program on the offender’s behavior, the program on the offender’s behavior, the victim’s recovery and the restoration of the victim’s recovery and the restoration of the relationship have to be analyzed. Follow up relationship have to be analyzed. Follow up research -after the three-year period- will research -after the three-year period- will contribute to further evaluation of mediation. contribute to further evaluation of mediation.

At the time, no evaluation and follow up At the time, no evaluation and follow up research is providedresearch is provided. .

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Two years after the introduction of Two years after the introduction of penal mediation in family violence penal mediation in family violence minorminor offences, offences, what’s the current what’s the current

situation?situation?

Very few cases are reported to the police Very few cases are reported to the police

(high ‘dark’ figure) and fewer proceed to the (high ‘dark’ figure) and fewer proceed to the next stage of criminal investigation. Victims next stage of criminal investigation. Victims of domestic violence do not trust the of domestic violence do not trust the (punitive) responses of the criminal justice (punitive) responses of the criminal justice system. Two years after the law provision, system. Two years after the law provision, there is no case of family violence reported, there is no case of family violence reported, appropriate for Victim Offender Mediation, as appropriate for Victim Offender Mediation, as described in the law. described in the law.

However, measures for better implementation However, measures for better implementation of the penal mediation have been applied of the penal mediation have been applied focusing mostly on the prosecutors’ focusing mostly on the prosecutors’ awareness on penal mediation procedures. awareness on penal mediation procedures.

A code of practice is needed. A code of practice is needed.

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Conclusion (1)Conclusion (1)

It was rather It was rather ‘risky’‘risky’ to introduce Victim to introduce Victim Offender Mediation (VOM) Offender Mediation (VOM) for the first for the first timetime in the family violence law of the in the family violence law of the Greek criminal justice system. The Greek criminal justice system. The appropriateness of mediation and appropriateness of mediation and restorative justice in gender issues, such restorative justice in gender issues, such as family violence, has been questioned as family violence, has been questioned even in countries with a long tradition in even in countries with a long tradition in restorative justice and alternative restorative justice and alternative dispute resolutions programs. dispute resolutions programs.

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Conclusion (2)Conclusion (2)

The compliance with European law is a sine The compliance with European law is a sine qua non condition for harmonization of qua non condition for harmonization of legislation in the context of the European legislation in the context of the European integration. However, preparation is needed for integration. However, preparation is needed for major changes to take place and the major changes to take place and the introduction of new institutions such as penal introduction of new institutions such as penal mediation in the criminal justice system. mediation in the criminal justice system. Adopting restorative justice programs at a Adopting restorative justice programs at a National level presupposes research, National level presupposes research, preparation and information with regards to preparation and information with regards to the possible changes in the criminal justice the possible changes in the criminal justice system and the society as well. system and the society as well.