Paper by Erzsébet Hatvani, presented in a plenary session at "Improving Citizenship & Restoring Community," the IIRP''s 10th International Institute for Restorative Practices World Conference, November 7-9, 2007, Budapest, Hungary.
Paper from "Improving Citizenship & Restoring Community," the 10th International Institute for Restorative Practices World Conference, November 7-9, 2007, Budapest, Hungary.
Erzsébet Hatvani |
The development of restorative justice in Hungary has largely been a top-down process conducted by the state. There were some initiatives taken by civil organizations in the form of small pilot projects that had some, but not a broad or significant, social impact. However, concerning restorative justice, civil organizations’ indisputable achievements include the creation of a professional basis, the adaptation of restorative techniques used in other countries, the promotion of mediator training, the initiation of research, and the support of legislation.
Among the central notions of restorative justice are the community, the restoration of relationships, and active participation by those affected by the offence. In traditionally democratic countries the evolution of the restorative justice idea is typically a bottom-up initiative. The need for a new approach in the criminal justice system is based on the community’s strong wish to participate in deliberations on the handling of the parties’ own conflicts. The claim for the application of restorative justice stems from the society and is directed towards the stakeholders of criminal policy. The usual question in these countries is how to persuade decision-makers and legal professionals to support restorative justice. Legal professionals’ commitment is also an issue in Hungary, but in addition to persuading its decision-makers, the question is how restorative justice can operate in a society with a low level of community cohesion. Hungary shares the three main objectives of restorative justice: the strengthening of the sense of responsibility of the offender, mitigation of the harms of the victims, and community conciliation.
Mediation as a method of conflict resolution has been used in Hungary since the 1990s, primarily in labour law, family law, child protection, health, and consumer protection disputes. Legal rules concerning these fields were introduced at the end of the 1990s; a Civil Mediation Act was constituted in 2003.
According to this act, anyone may be a mediator who has a diploma and registers on the roll of mediators. Special mediator qualification is not needed; however there are additional requirements of qualification and practice regarding certain legal areas, such as child protection.
From 1 January 2007, victim-offender mediation is also applicable in criminal procedures, and these cases are mediated by specially trained probation officers.
The task of implementation of victim-offender mediation has been allocated to the Office of Justice. The Office of Justice is a background institution of the Ministry of Justice and is responsible for the nationwide operation of the Probation Service, the Victim Support Service, and the Legal Aid Service.
Establishment of victim-offender mediation as a legal institution has been promoted as well as required by the expectations of the European Union and also of national legal development. The Mediation Act promulgated in 2007 complies with the Framework Decision of the EU Council of Ministers and the Recommendations of the Council of Europe.
In recent years, the position of victims in criminal procedure has been strengthened. Other government measures also try to help victims to resolve the trauma caused by the offence, to obtain compensation (from the state rather than from the offender), and to strengthen their ability to enforce their interests. Despite these new regulations, the position of victims in criminal procedure is still not strong enough, and recovery of damages for injuries caused by crimes is very limited. Mediation is the first type of procedure in which the offender and the victim have the same level of rights, even in the initial period of criminal procedure.
Introduction of victim-offender mediation has been supported by the ongoing criminal justice reform started in 2003. Objectives of the reform are the promotion of community crime prevention, reform of the probation service, reinforcement of the application of alternative sanctions that build on the sense of responsibility, and activity of the offenders.
NOW BRIEFLY ABOUT THE LEGAL BACKGROUND OF MEDIATION
Victim-offender mediation is applicable in cases of crimes against another person, crimes against property, or traffic offences, punishable by up to five years’ imprisonment. It is also a precondition of mediation that the offender confess during the course of investigation. Crimes resulting in death, committed by multiple recidivists, or working within a criminal organization are excluded. Victim-offender mediation can be requested by both the victim and the offender. It is the public prosecutor or the judge who can decide and order the suspension of the criminal proceedings for up to six months and refer the case to mediation. Before referring a case to mediation, both the offender and the victim have to agree to participate.
After the end of mediation, it is the mediators’ responsibility to follow up on the offender’s compliance with the agreement and to send a report to the prosecutor or judge saying whether the agreement has been completed or has failed.
If mediation is successful, which means not only that an agreement has been reached but also that this agreement has been completely fulfilled, the criminal procedure can be terminated or, in the case of adult offenders who committed crimes punishable more than three years’ imprisonment, the judge can decide on mitigation of the punishment without any limit. If mediation is not successful, the criminal procedure continues. In the case of juvenile offenders where the offence is punishable by up to five years’ imprisonment, mediation can lead to the termination of culpability.
It is also worth mentioning that victim-offender mediation is free for both parties.
According to legal requirements concerning mediation procedure, probation officer-mediators use the classical victim-offender mediation method.
Despite this, during mediation the parties may invite two participants each to support them.
In case of juvenile offenders and if the victim is under eighteen years of age, a legal representative (parent) has to be present as well. Both parties will have been advised that they can represent themselves and express their feelings about the event, but they may also bring their advocates to the mediation hearing.
The Mediation Act states the principle of equality, confidentiality, and the voluntary character of the procedure. It does not require that the victim and offender meet face to face, which leaves open the use of indirect mediation. But whether direct or indirect mediation is used, both parties must be present when they sign the document of agreement.
The law identifies three objectives of the agreement: It shall contain a solution for the consequences of the crime, it shall facilitate the restitution of the crime, and it shall enable the offender to start a law-abiding life.
The law permits any forms of restitution that are not against the law or public morals. The restitution can be an apology, compensation, reparation of the harms caused, or undertaking to participate in any treatment or other programme. In the brief period of time that mediation has been practised in Hungary, material compensation has been the dominant form of restitution. The Probation Service has recently started to cooperate with NGOs that can provide possibilities for non-financial, symbolic restitution for the community. This is particularly needed in cases of juvenile offenders, who typically have no resources for material compensation.
EVALUATION OF PRACTICE
The introduction of victim-offender mediation in Hungary was a significant step forward in the process of its criminal reform and also in meeting European standards. Although the public and some professionals in the criminal justice field are sometimes sceptical, it is clear that it takes time to develop a sound and a better understanding of restorative justice.
In spite of this, the first half year’s practical experience shows that victim-offender mediation has a definite place in the Hungarian criminal justice system, and that it exists not only as text in a few laws and decrees, but as a living instrument that has real application.
From 1 January 2007 until the end of June 2007, 1027 cases were referred to mediation, and the number of referrals increased from month to month.
Of the offenders, the vast majority (87 per cent) of those referred were adults; 127 juveniles comprised 12 per cent of the total. It is interesting to note that the proportion of referred cases with juvenile or female offenders (166 persons, 16.3 per cent) is higher than their proportion in the general criminal statistics. The most common crimes referred to mediation were theft (307 cases), serious violence (133), and traffic accidents causing serious injury (189).
Most of the agreements included an apology and compensation, but there are examples of other types of restitution. Examples include juveniles who undertook to paint the wall of the school that they had spoiled and, in a more serious case, offenders who undertook gardening or other types of housework while the victims’ injuries lasted. There are also examples in which the victim asked the offender to join an anti-alcohol programme or to visit a psychiatrist on a regular basis.
As a conclusion, it can be said that the legislative and institutional steps that have been mentioned show that concerning restorative justice, Hungary has taken the first steps toward a modern criminal justice system that is compatible with international standards. The use of restorative justice may be more common and more frequent after practitioners and the public become familiar with this new ideology. However, Hungary is still very far from using the restorative approach widely in its education or in everyday life, preconditions for the application of the restorative philosophy within our whole society. But as Chairman Mao once observed, even the longest journey begins with a single step.
