Benutzer:L Nico/Restorative Justice in Austria

Restorative Justice in Austria takes the form of Victim-Offender-Mediation (VOM), called Tatausgleich, and is delivered through professional social workers employed at a private association funded by the Ministry of Justice.

History

A pilot project of Vicitm-Offender-Mediation (VOM) for juveniles started in 1984. Due to its promising results, VOM was integrated into Juvenile Justice Act in 1988. VOM for adult offenders was started as a pilot project in 1991, and is today included in the Criminal Procedural Law. Reforms in 2004 and 2007 further strengthened the role of victims.i A pilot project on family conferencing is currently under way.

Legal Framework and Process

The state prosecutor, at his or her own discretion, can suggest cases for VOM, in which case victims and offenders will be asked whether they would like to enter a VOM process - otherwise, the case goes to the criminal court. The court later still has the option, of its own motion or at the application of either the victim or the suspect, to propose VOM at any stage until the end of the trial.

The basic legal prerequisites for diverting a case are: i no serious culpability on the part of the suspect, a maximum range of punishment for the offence of five years, adequate clarification of the facts and circumstances and no loss of life.

If these conditions are met, victim-offender mediation, community service, a fine and a period of probation with or without a probation officer can be applied. Further conditions for victim-offender mediation (VOM) are:ii

The suspect is willing to take responsibility for the action and to consider its causes; The suspect will take measures as deemed appropriate under the circumstances to compensate for the consequences of his action; If necessary, the suspect will take on commitments that show his willingness to abstain in the future from behaving in a way that led to the action; The victim approves of VOM (this does not apply in cases where the suspect is a juvenile)iii

The mediators are required to support all parties in reaching a reconciliation of interests.iv In particular, they have to inform the victim about possible demands or expectations (especially compensation of damages, apology and reasonable prospect of the offender’s willingness to abstain from acting and behaving the way that caused the offence). As soon as a compensatory arrangement has been agreed between the offender and the victim, the mediators report this to the public prosecutor or judge, and monitor compliance to the agreement. v

VOM services in Austria are provided by the private, but publicly funded association 'Neustart'.vi Mediators hold a degree as social worker or similar profession. In addition, they undergo a four year training period, accompanying experienced mediators, then taking on cases on their own, all the while having additional modules on methods and on law.

Mediation Process

The mediators contact both parties and talk to them, separately at first. This gives parties a first occasion to be heard, to give their perspective and to utter their emotions. Mediators try to establish whether some basic conditions for a VOM are met, such as the offender's willingness to own up to the offence, or the victim's readiness to speak up for his or her interests. If there are power imbalances in the relationship between victim and offender, is the task of the mediator to support the weaker party towards gaining the strength to participate fully and independently in the mediation process. Methods used are similar to methods used in mediation generally. Sometimes parties are brought together to talk to each other directly after the separate pre-meetings with the mediator. Sometimes more indirect communication may be needed, at least at first, such as one party telling the story not to the other party, but to the mediator, while the other party is just listening. Or mediators may retell the story they have heard in the presence of both parties. If a group of offenders is involved, the mediator may meet with the group first, then each member of the group individually with the victim to apologize, then the whole group with the victim to agree of reparations. What method is used at what stage, and at which point parties are talking to each other directly is determined by the needs of the persons involved and the relational dynamics in each case.vii The procedure can be stopped at any stage during the mediation process. As a consequence, the formal criminal process will be resumed. A successful mediation ends with a written agreement, fulfilment being monitored by the mediating agency. If mediation efforts are not successful, criminal court proceedings resume.

Data, Research, Evaluation

The number of cases referred to VOM peaked several years after the introduction (juveniles: 2,727 in 1997; adults: 7,264 in 2002), but declined again in recent years. Over two thirds of the cases referred to VOM concern offences against physical integrity, such as assault or battery, as, for instance, in fights and quarrels.

In the pilot project with juvenile offenders the participation rate of the young offenders was about 90% and the (voluntary) participation of victims was even higher. The overall rate of successfully resolved conflicts, i.e. cases that had resulted in an agreement and its fulfilment, was about 90% of the cases where the mediators had succeeded in establishing contact with the offender.i With adults, about 85% of the alleged offenders and the same percentage of victims were prepared to participate in VOM, resulting in altogether 72% of the cases referred to the mediation being carried by the will of both parties to join in the mediation effort. Of these, as many as 86% ended up with an agreement. The interest in achieving symbolic reparation and restoring the balance was more pronounced than the desire to achieve material compensation, both for victims and offenders. This may stem from the fact that the majority of cases were located in the immediate close social environment and concerned petty and minor physical damages and threats. Cases where direct mediation took place showed a rate of compliance that was considerably higher than those with merely indirect mediation. 1

A study comparing VOM in the Austrian province of Styria and the German province of Baden Württemberg in 1998 showed that cases mostly concerned physical injury in Styria, offences against personal honour in Baden-Württemberg. 72% of the alleged offenders and 74% of the victims that were referred in Germany, but 93% of the offenders and 92% of the victims that were referred in Austria, were prepared to co-operate. In Styria direct mediation was the predominant mode (73%); in Baden-Württemberg direct mediation occurred in only 36% of the cases. In Styria an agreement was reached in 85% of cases; this was 75% in Baden-Württemberg. 87% of the victims in Styria were satisfied, while this was 65.5% in Baden-Württemberg.2

A 1998 study compared 7,952 adults in Austria convicted to a fine for minor assault to 361 adults who, during the same period, had gone through victim-offender-mediation (VOM) for the same offence. After three years, the rate of recidivism was 14% for the VOM cases and 33% for those sentenced to a fine. Among those with previous convictions, the rates were 30% and 47% respectiveley, for those without previous convictions 10% and 22% respectivly.ii

A 2005 study also focused on legal recidivism, i.e. re-conviction after going through a VOM process.3 The study pointed out that almost a third of the persons involved in VOM participated as both victim and offender. A successful agreement leading to dropping of charges by the prosecutor was reached in 78% of all cases, in 83% of all juvenile cases. After a VOM (with or without an agreement reached), only 16% of offenders have been re-convicted during the observation period; with partnership conflicts the number was as low as 11%. For minor assault the re-conviction rate after VOM was 15%, the overall rate after a court sentence for minor assault was 41%. In part, these results may be related to the discretionary nature of referral for VOM.

VOM in cases of domestic violence has been studied in 2000, and again 2010.iii They found that VOM can help support processes that are already under way, such as increasing victim's self-assurance, in the relationship or in the process of separation. 58% of couples were already separated or in the process of separation at the time VOM took place, 68% were separated at the time of the study. 65% of the women concerned said that they felt more self-assured and stronger as a result of the VOM-process and thus empowered to follow through with the separation, for 55% the process had contributed to convince them that separation was the best thing for them to do. Of all women responding, 83 % had experienced no further violence, 8% had suffered repeated incidences.

References

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