Publication by Proyecto Consensus

Good Practices Of Restorative Juvenile Justice Jose Ignacio Prieto Lois and María González Vázquez

GOOD PRACTICES OF RESTORATIVE JUVENILE JUSTICE José Ignacio Prieto Lois

Director of Technical Teams of the Juvenile Justice Courts. Xunta de Galicia. Director of the Project Consensus

María González Vázquez

Lawyer. Coordinator of the Consensus Project

In preparing this publication have participated: Marta Teijido Pérez

Psychopedagogist. Technical Consultant of the Consensus Project

ISBN Nº: 978-84-693-1057-1 Depósito Legal: C726-2010 Layout and Design of frontpages: info@grupo76.com

Mercedes Cendán Vérez

Sociologist. Technical Consultant of the Consensus Project

Miguel Pita Fojón

Technical Assistant of the Consensus Project

Index

Good Practices of Restorative Juvenile Justice

Index PRESENTATION

RESTORATIVE JUVENILE JUSTICE

THE CONSENSUS PROjECT

LEGAL FRAMEWORK IN THE SPANISH STATE

GOOD PRACTICES CONCERNING RESTORATIVE JUVENILE JUSTICE IN THE SPANISH STATE

Andalucía Aragón Asturias Cataluña Madrid País vasco Galicia

26 31 35 39 45 48 54

PANELS OF EXPERTS IN GALICIA Panel 1. Prosecutors and judges Panel 2. Specialized professionals for minors

TRANSNATIONAL FORUM: GOOD PRACTICES OF RESTORATIVE JUVENILE JUSTICE Schedule Plenary debate Proposals for improvement Final remarks

61 61 63 68 68 71 75 78

REPARATIVE JUSTICE AND THE PENAL RESPONSIBILITY OF THE MINOR Ilmo. Sr. D. Carlos Mariscal de Gante Castillo. Prosecution Delegate of the Section for Minors of the Provincial Prosecution of A Coruña MEDIATION IN THE JUVENILE JUSTICE SYSTEM. CHARACTERISTICS Juan Luis Basanta Dopico. Pychologist of the Chief Prosecution of Minors and Court of Minors, Ourense

103

109

RESTORATIVE JUSTICE IN SCOTLAND Prof. Dr Michele Burman. University of Glasgow. Scottish Centre for Crime and Justice Research. Scotland. UK.

RESTORATIVE JUVENILE JUSTICE IN UK 118 Ms. Jenny Johnstone. Newcastle University. Research Associate, Scottish Centre for Crime and Justice Research. UK Bulgaria on the road to victim-offender mediation and restorative justice for juveniles Prof. Dr. Dobrinka Chankova, Chair of the Institute of Conflict Resolution – Sofia, Bulgaria

MEDIATION IN CRIMINAL CASES IN FINLAND 143 Dr. Kauko Aromaa. European Institute for Crime Prevention and control, affiliated with the United Nations (HEUNI). Helsinki. Finland. RESTORATIVE JUVENILE JUSTICE IN FINLAND. GOOD PRACTICES Ms. Erika Uotila. Planning Officer. Department of Criminal Policy. Ministry of Justice. Helsinki. Finland.

149

RESTORATIVE JUVENILE JUSTICE IN PORTUGAL. GOOD PRACTICES Mrs.Susana Castela. Probation Officer. Directorate General of Social Re-integration. Ministry de Justice. Lisbon. Portugal. PROGRAMME OF MEDIATION AND REPARATION OF THE DIRECTORATE GENERAL FOR SOCIAL RE-INTEGRATION (DGRS) Mrs. Inês Coelho. Probation Officer. Directorate General of Social Re-integration. Ministry de Justice. Lisbon. Portugal.

LECTURES PRESENTED AT THE TRANSNATIONAL FORUM: GOOD PRACTICES IN RESTORATIVE JUVENILE JUSTICE

THE EUROPEAN CRIME PREVENTION NETWORK (EUCPN) D.Juan Carlos Garrido Iglesias National Representantative of the EUCPN in Spain

EVOLUTION OF THE LEGISLATION OF YOUNG OFFENDERS Ilmo. Sr. D. Manuel Conde Núñez Judge Magistrate. President of the section 5ª of the Provincial Hearing of A Coruña

135

Probation and Victim-OfFender Mediation: Good Practices of Restorative Justice in Italy Dr. Anna Mestitz. Research Institute on Judicial Systems of the National Research Council (IRSIG-CNR, Bologna, Italy) and Dr. Marilena Colamussi. Faculty of Law of the University of Bari and “associated researcher” at IRSIG-CNR.

ANNEXES Bibliography

156

168

176

194 196

Presentation

This publication gathers together the papers and conclusions of the transnational forum: Good Practices of Restorative Juvenile Justice, which, in the framework of the Project CONSENSUS, is celebrated in Santiago de Compostela on the 2nd and 3rd of November 2009. In addition to the publication of the Catalogue of Good Practices of Restorative Juvenile Justice in the Spanish State and the Conclusions of the Panel of Experts in Galicia there have also been incorporated the results of other assignments carried out during the Project.

Presentation

The following discourse by D. Carlos Varela Garc铆a - Excmo. Sr. Fiscal Superior (Chief Prosecutor) of the Comunidad Aut贸noma de Galicia, constituted a speech at the inauguration of the Forum.:

Restorative Juvenile Justice

RESTORATIVE JUVENILE JUSTICE I am sincerely grateful to the organizers of these sessions dedicated to juvenile justice support and their inclusion of my contribution in this act of inauguration and their inclusion of the Ministry of Public Prosecutions which I represent for the Autonomous Community of Galicia. There is a growing perception of a constant increase in juvenile crime, also of the increasing seriousness of the crimes committed by ever younger age groups. There is generated in this way a state of opinion favourable to an increased penal response, channelled in part by the media, which ends up giving a distorted idea of the reality and the magnitude of this phenomenon, in respect to the occasionally violent aspect of juvenile crime. However, the analysis of the general information in our autonomous community brings out the result that this type of crime does not register important fluctuations either in its annual numbers or in the gravity of the offences. To project a clear idea of there not existing unusual cause for worry in terms of the number and the seriousness of these crimes we can point out that one other group of offences - bodily harm, marks itself out by 28.54%, followed by crimes against property and theft by 27,27%. Situated at a lower level are legal damages by 13.35%. Domestic crime and violence between spouses have seen a greater incidence and overall crime was 6, 82%. Finally, traffic offences were represented by a percentage of 3.80%. On the other hand the juvenile crime figures for Spain indicate that in the majority of cases the acts are of lower or medium intensity.

Presentation

years of age who have committed a crime related to road-safety (driving under the influence of alcohol, driving without permission or licence, or dangerous driving) We are therefore experiencing a model of intervention essentially educational in the area of delinquency which permits us to open up routes of participation and the effective possibilities of exercising real citizenship for the youth in our society. The lack of political culture for young people creates an immense vacuum which, progressively, might be occupied by negative forces such as the consumption of drugs, violence, vandalism and other types of crime. We cannot forget that youth finds itself in a phase of experimentation, discovery and exploration of its potentials and dedicates to this activity a high level of energy. Taking this into account we aim to open up schemes which create spaces and channels for the discharging of this energy - to make possible the wholesome exercise of citizenship and the developing of a positive social identity. This requires daring and creativity and in particular the formation of teams skilled in working with young people who can dedicate themselves to extra-judicial solutions in the area of juvenile justice. If we act in this way - approaching juvenile delinquency as a social problem which should be faced preferably from a preventative and rational point of view, we will contributing enough for an increase in incidents not to arise, without which there will always appear someone proposing desperate measures consisting in reducing ever more the age for penal responsibility. l

But what most calls for our attention and hope in these figures related to our community is that judicial processes have resulted in solutions other than sentences in 56,98% of cases which shows an important reduction: -47,95% in respect to the previous year. These figures demonstrate that mediation, regulated in article 19 of the Penal Code For Minors, constitutes a very valuable alternative to the juvenile penal process which should be strengthened by the accompanying support of means which enable the deepening of this resource, which in our case allowed approximately a third part of the correctional solutions to be found outside of judicial processes. On the 14th of last July, the Chief Prosecution and the mayor of the city of Vigo signed an agreement for the carrying out of awareness activities and road safety education, related in the context of the young offender with the objective of find extra-judicial solutions for those young people between 14 and eighteen 10

Carlos Varela Garc铆a Excmo. Sr. Chief Prosecutor of the Comunidad Aut贸noma de Galicia Santiago de Compostela, 2nd of November 2009

Restorative Juvenile Justice

Good Practices of Restorative Juvenile Justice

Project CONSENSUS

Good Practices of Restorative Juvenile Justice

criminal justice process. The project CONSENSUS, begins with a study of good practices which permits the obtaining of up-to-date and comparative information about preventative and rehabilitation youth justice - Restorative Justice, in order to be able to know the problems which arise in the practical application of these, from different perspectives, and what advantages are provided by their dissemination in terms of being an alternative mechanism to the traditional retribution justice model, for the offenders, the victims and for society in general. It enables, moreover, the transference of information and experiences from different places, permitting professionals to learn and utilize new methods of intervention which have been tested. Restorative Justice is one of the tendencies of the current penal justice system, as much for juveniles as for adults. It is based on the adopting of interactive measures which consider the offenders, victims and the community with the intention of: making justice more comprehensible; achieving greater efficacy; reaching more practical agreements; procuring greater cost-effectiveness for the justice system; increasing the satisfaction of citizens by speeding up solutions; and decreasing the feelings of tension and defencelessness. The reparation of the disturbed relations, material and non-material, between the victim, the community and the offender, constitute the general principle of orientation in processes of the penal justice system. The measures for imprisonment and other penal sanctions should constitute the last resort and be applied only in those cases where it is considered absolutely necessary. In contrast to the concept of retribution justice, the concept of Restorative Justice is a paradigm of justice which includes the victim, the accused and the community in the search for solutions to the consequences of the conflict generated by the criminal act, with the end to promote the reparation of damage, the reconciliation of the parties and the strengthening of the concept of collective security. The Recommendation No.R (99) 19 of the Council of Europe concerning mediation in penal matters recommends that the governments of member States consider the principles set out in this text and give the widest possible circulation to it. Those general principles are the following: s Mediation in penal matters should only take place if the parties freely

consent. The parties should be able to withdraw such consent at any time during the mediation. s Discussions in mediation are confidential and may not be used subsequently, except with the agreement of the parties.. s Mediation in penal matters should be a generally available service. 12

s Mediation in penal matters should be available at all stages of the s Mediation services should be given sufficient autonomy within the

criminal justice system. s A los servicios de mediaci贸n se les debe proporcionar autonom铆a

suficiente dentro del sistema de justicia penal. The Recommendation Rec (2006) 8 of the Council of Europe on assistance to crime victims recommends that where mediation is envisaged, states should support the adoption of clear standards to protect the interests of victims. These should include the ability of the parties to give free consent, issues of confidentiality, access to independent advice, the possibility to withdraw from the process at any stage and the competence of mediators. The Framework Decision of 15 March 2001 on the standing of victims in criminal proceedings (2001/220/JHA) mediation in criminal cases as the search, prior to or during criminal proceedings, for a negotiated solution between the victim and the author of the offence, mediated by a competent person and indicates, in article 10, that each Member State shall seek to promote mediation in criminal cases for offences, which it considers appropriate for this sort of measure, and shall ensure that any agreement between the victim and the offender reached in the course of such mediation in criminal cases can be taken into account. For United Nations a restorative process is any process in which the victim and the offender and, where appropriate, any other individuals or community members affected by a crime participate together actively in the resolution of matters arising from the crime, generally with the help of a facilitator1. The Opinion of the European Economic and Social Committee on the prevention of juvenile delinquency. Ways of dealing with juvenile delinquency and the role of the juvenile justice system in the European Union (2006/C 110/13) shows that the Commitee is convinced that there should be a series of minimum standards or guidelines between the Member States covering all aspects from the way the police and courts deal with young people in conflict with the criminal law right through to re-education and resocialisation and indicates that the current responsibility model which is based on the following principles: s Prevention before crackdown: the best way to combat juvenile

delinquency is to prevent the emergence of young offenders, and this requires suitable social, occupational, economic and educational assistance programmes (among which programmes to encourage and facilitate proper use of free time and leisure opportunities should not be overlooked). s Reducing the use of the traditional justice system to the absolute minimum and establishing new justice systems especially geared to

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juvenile delinquency, leaving other situations which may affect minors (suffering from abandonment, abuse or maladjustment, for example) to other services (social welfare). s Reducing punitive state intervention, at the same time implementing preventive strategies in the areas of child welfare services, social policy, the labour market, leisure provision and municipal policy in general, and similarly involving the community and other social groups more actively in settling conflicts and seeking viable alternatives, such as family, social workers, school, community, social organisations, etc. s Minimising measures or punishments that deprive young people of their liberty, by restricting these to exceptional cases s Making the disciplinary response more flexible and diverse, with adaptable measures that can be tailored to the circumstances of the minor, in line with the conditions and progress made in treatment or in the application of the measure, as alternatives to detention. s Giving young offenders the same rights and guarantees as adults in criminal proceedings (a fair and impartial hearing). s Putting the official social control bodies involved in the juvenile justice system on a professional, specialist footing. In this context, specialised training should be provided for all those involved in the administration of justice for minors (police, judges, public prosecutors, lawyers and professionals who carry out the various sanctions).

On another level, the inclusion of mediation with young people and social mediation in the first Programme of the European Crime Prevention Network demonstrates an ever growing interest in alternative means of applying the Penal Law.

Confronting the concept of retribution justice (paying for the damage caused) has emerged a conception of restorative justice created with the political characteristics of criminology - a movement called victim-orientated which favours the importance of the victim - and the recovery of this role in the penal process. The concept of Restorative Justice is a paradigm of justice which includes the victim, the accused and the community in the search for solutions for the consequences of the conflicts generated by the criminal act, with the aim of promoting the reparation of damage, the reconciliation of the parties and the strengthening of the concept of collective security. Restorative Justice tries to protect the interests of the victim (the offender must recognize the damage caused and should try to make reparations) just as much as the community (directed towards achieving the rehabilitation of the offender, to prevent the reoffence and reduce the costs of penal justice) and the offender (does not enter into the penal system but itâ&#x20AC;&#x2122;s constitutional guarantees will be respected). Furthermore, in respect to the latter, the reparation will perform a specific function which is to stimulate the minor to reflect on his guilt by confronting him directly with the victim to persuade him to exhibit similar behaviour in future. Thus results in a model suitable to juvenile justice for not being stigmatizing but rather of great educational benefit and slight in terms of repression2.

In the year 2007, the European Commission signed a framework agreement with the Presidential Council, Public administration and justice of the Government of Galicia and with other entities and public bodies of the member states to establish collaboration in the long-term in the development of projects for the prevention of delinquency. In the area of this framework agreement there has been created the CONSENSUS Project, which responds to the general objective of stimulating, inspiring and developing methods and instruments necessary to battle strategically against delinquency and guarantee safety and public order. Financially, the project counts on the Programme â&#x20AC;&#x153;Prevention of and Fight against Crimeâ&#x20AC;?, of the Directorate General of Justice, Freedom and Security of the European Commission. This programme was established in 2001 by Council Decision, as part of the General Programme for security and the Safeguarding of liberties. One of the aims it pursues is to evaluate the activities which are being carried out in the member States to analyse to what measure restorative justice contributes to the prevention of delinquency, identifying the policies effective in and the factors relevant to its success, with special concern to know how to work with offenders within the model of restorative justice. The following institutions from other members of the European Union work as partners in the Project CONSENSUS: n Institute of Conflict Resolution (ICR). Sofia. Bulgaria. n European Institute for Crime Prevention and Control, affiliated with the

United Nations, - (HEUNI). Helsinki. Finlandia. n Research Institute on Judicial Systems (Bologna). National Research

Council (IRSIG-CNR), Italia. n Directorate General for Social Rehabilitation. Ministry of Justice.

Lisboa. Portugal. n University of Glasgow, Scottish Centre for Crime and Justice Research

(SCCJR). Reino Unido. For the development of this project the support of D. Juan Carlos Garrido Iglesias has been very important. He is the representative in Spain of the European Crime Prevention Network (EUCPN.)

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In Spain the practical application of restorative Justice is a rather recent phenomenon. The law of 5/2000 pertaining to the Penal Responsibility of Minors of 12th of January and its ruling of the 30th of July 2004 anticipates mechanisms based on Restorative Justice such as conciliation and extrajudicial reparation, which are the outcome of the resolution of conflicts through the negotiation of both parties.

concerning which are also analysed the reports, conclusions and practical results of other European projects and conferences.

As is pointed out by the Prosecutor of the Superior Court of Justice in Galicia, Fernando Suanzes Pérez, the initiation of the procedure of minors that is referred to the Chief Prosecutor, always commences by starting the so-called Preliminary Proceedings, a phase which has as its objective the preliminary evaluation of the terms of the accusation and the verification, if it is necessary, of the specific tests that are considered necessary for the decision to take up or not to take up the procedure which is named the Reform Proceeding. As is set out by the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, known as the “Beijing Rules” should be examined in this phase (among other things) the possibility of dealing with the minors who have committed offences without referring to presiding authorities for them to be tried officially, under the auspice of the Chief Prosecutor and other bodies to dispose of those cases without the necessity for an official checking and procuring the help orientation and supervision programmes from the community, and forms of compensation and restitution for the victims (as in rule 11). Therefore we treat of avoiding penal proceedings whenever possible. Moreover in Spain this can be and should be as is laid out in the LORRPM, when there are estimates which are allowed for as essential in article 19 but also when legal proceedings are put aside instead for correction in the family and educational context which is regulated by article 183. In some autonomous communities there have already been some experiences along this line of development, while in others they are still beginning to develop these anticipatory mechanisms in the Law. There is an insufficiency, dispersion and a lack of up-to-date information in existing data. Also, there is hardly any analysis about the circumstances which lead to success in the Good Practices of Restorative Juvenile Justice and the prevention of the subjects becoming re-offenders. It is observed among professionals that there is generalized unawareness of the good practices in the intervention with minors which, in the context of restorative justice, are developed in other countries, despite there approaching juvenile delinquency in similar ways. In this matter it is desirable that the Member States, in collaboration with the Commission, draw up some minimum orientation plans applicable to all of them. The CONSENSUS PROJECT sets out in the first place to examine the theoretical and scientific documentation which exists in Europe about restorative justice and

In the meetings held with our international partners we have also gained access to studies carried out in those countries and bibliographical documentation and these have been of great usefulness in the building of the project: n Theo Gavrielides, (2007). HEUNI. Restorative Justice Theory and

practice: Addressing the discrepancy. Printed by Hakapaino Oy, Helsinki n Kauko Aromaa and Markku Heiskanen (2008). HEUNI. Crime and Criminal Justice Systems in Europe and North America 1995-2004. Printed by Hakapaino Oy, Helsinki n United Nations. Office on Drugs and Crime, (2006): Handbook on Restorative Justice Programmes. Criminal Justice Handbook series. Vienna n Anna Mestitz y Simona Ghetti, (2005): Victim- Offender Mediation with Youth Offenders in Europe. Springer. The Netherlands. n Anna Mestitz, (2004). Mediazione penale: chi, dove, come e quando. Carocci editore: Roma. n Anna Mestitz, (2007). Messa alla prova: tra innovazione e routine. Carocci editore: Roma n Anna Mestitz, (2008). Organizational features of victim- offender mediation with youth offenders in Europe. Bjcj Brithish Journal of Community Justice: Vol 6 No2. n Restorative Practices in Three Scottish Councils Final Report of the Evaluation of the first two years of the Pilot Projects 2004-2006. n Implementing Restorative Justice within an Integrated Welfare System: The Evaluation of Glasgow’s Restorative Justice Service. Summary Report. Kathryn Dutton and Bill Whyte. CJSW Briefing Paper 8: March 2006. n Youth Justice Services. Evaluation report. April 2004 – March 2005. SACRO. Scotland. n Partnership in Youth Justice. Sacro’s Expertise as a Restorative Justice Provider n Crime and Restorative Justice Bill Whyte CJSW Briefing Paper 4- April 2002. Scotland. n Enquadramento jurídico e estratégia de intervenção na jurisdição tutelar educativa. Assessoria Técnica aos Tribunais na Fase Présentencial. Direcçao de Reinserçao social. Ministério da Justiça. Portugal. n Tools in Network, an E-Net approach to sharing mediation competences” (Institute of conflict resolution (Bulgaria) and other partners).

Project CONSENSUS Nombre Del Capitulo

Good Practices of Restorative Juvenile Justice

Legal Framework in the Spanish State

In the following phase of the Project has been identified and compiled existing good practices concerning Restorative juvenile justice in the Spanish state, attempting to identify the particular variables which facilitate the success of the restorative measures, focusing the study especially on action applied to young offenders.

LEGAL FRAMEWORK IN THE SPANISH STATE

To complete this analysis we have organized Panels of Experts on Youth Justice through meetings and interviews with judges, chief prosecutors and specially skilled teams in the trials of minors, and of public entity for judicial measures, gathering in this way the distinct perspectives offered by professionals from the field of the court and that of social psychology. In November of 2009 was celebrated an international forum for the exchange and interchange of experiences in which participated professionals and experts in youth justice from all partner states, who presented papers and innovative ideas and proposals directed toward the better application of Restorative Justice and to facilitate the solution of problems which emerge in practice with the end to contribute to the establishment of common criteria for implementation in the member states of the European Union. l

Handbook on Restorative Justice Programmes. CRIMINAL JUSTICE HANDBOOK SERIES. UNITED NATIONS OFFICE ON DRUGS AND CRIME. Vienna 2006. Opinion of the European Economic and Social Committee on The prevention of juvenile delinquency. Ways of dealing with juvenile delinquency and the role of the juvenile justice system in the European Union (2006/C 110/13). 3 RESTORATIVE JUSTICE: CURRENT LEGISLATION IN THE FIELD OF JUVENILE JURISDICTION. Fernando Suanzes Pérez. Prosecutor of the Superior Court of Justice in Galicia and Associate Professor of Criminal Law at the University of A Coruña. . 1

Extra-judicial conciliation and reparation permits young offenders to take responsibility for their acts ask for forgiveness from the victim and repair any damage caused. It is observed that the percentage of non re-offence corresponding to young offenders after extra-judicial solutions is high. The mediation, which searches for a solution to the conflict between the victim and the offender, through the process of conciliation and reparation, implies a separation from the court-system while re-inserting the minor, taking into account at the same time the interests and the point of view of the victim.

The organic law 5/2000 of the 12th of January, regulating the penal responsibilities of minors (LORPM) and its regulation approved by RD 174/2004 of the 30th of July, is applied to demand the responsibility of persons over the age of 14 and younger than 18 for the commission of acts typified as crimes or omissions in the penal code or special penal laws. They respond to the mixed domination model which treats of juvenile delinquency, with elements of the responsibility model and some elements of the educational model. The procedure is penal technically, but in practice it is one of sanctions and educational. The model of responsibility is introduced into Spanish law following the directives set out in the norms relative to the justice for minors emanating from ONU and the Council of Europe: the basic rules of the United Nations for the administration of juvenile justice, ”rules of Bejing”, of 1985; the directives of the united Nations for the prevention of Juvenile delinquency ‘’Directives of Riad’’, of 1990; the rules of the Directives of the United Nations for the protection of minors in custody, of 1990; the Recommendation nº 87 of the Committee of the Ministry of the Council of Europe, about reactions of society to the delinquency and the Convention of Children’s Rights of November of 1989. These pronouncements determine the abandonment of the paternalism which was in force in Spain, reflected in the text reconstituting the Legislation regarding Tribunals of Minors approved by the decree of 11th of June of 1948. The Paternalistic model, distinct from that of responsibility, considered the minor who committed a crime as a victim deserving of protection - a social defective, mixing and confusing him with other vulnerable minors and not asserting for him the recognition of his rights and duties which were vindicated in the cases of adults4.

The law gathers together some more positive aspects of the system of young person’s responsibility: the solutions which are extra-judicial, in virtue of the principle of opportunity, permit the state as prosecutor to desist in the coercion by expedient in the correction of the family and educational environment (art.18 LORPM) or the achievement of the same by conciliation and or reparation between the minor and the victim (art. 19 LORPM), in this way there is a possibility of not continuing the proceedings due to the reproach having been expressed sufficiently and the intervention resulting as inadequate due to the time passed

Legal Framework in the Spanish State Project CONSENSUS Nombre Del Capitulo

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Legal Framework in the Spanish State

(art. 27,4 LORPM). Alternative mechanisms are also contemplated after the prison term of the sentence which permits the measures to be left without being applied or to be substituted by others which are more adequate, when conciliation has been reached between the young offender and the victim (art. 51, 3 LORPM).

determinate actions for the benefit of them or the community, followed by its effective fulfilment. All this is without prejudicing the agreement which the parties have come to in relation to their civil responsibility.

The LORPM considers that the best interests of the minor should hold sway as much in the process as in the application of the measure if it doesnâ&#x20AC;&#x2122;t infringe upon the rights of the victim or aggrieved party. Ultimately, the law is to bring about the penal intermediation as much in the phase of instruction as in the execution of measures.

Article 18. The withdrawing of the legal process, for correction in the family and educational context.

The Chief Prosecution can desist in the use of the expedient when the acts which a person is accused of constitute less serious crimes without violence or intimidation of persons or faults typified in the Penal Code or in special penal laws. In any case this Ministry of justice will give what is carried out to the public entity for the protection of minors for the application of what is established in article 3 of the present Law. By itself the Chief prosecution will communicate to the offended or prejudiced the accorded amnesty. Not withstanding, when the minor has committed some anterior crimes of the same nature, the Ministry should uphold the expedient and in this case, act in conformance with that authorized by article 27.4 of the present law.

Article 19. Closing the case in the expedient by conciliation or reparation between the minor and the victim.

Also the chief prosecution could desist in the continuation of the expedient, attending the gravity and circumstances of the acts, the of the minor, particularly in the case of a lack of violence or serious intimidation in the commission of the acts, and the circumstances where the minor has conciliated the victim or has assumed the commitment to repair the damage caused to the victim or to the person affected by the crime, or if he they have otherwise committed themselves to comply with the educational activity proposed by the skilled team and its report. To desist in the continuation of the expedient is only possible when the act which the minor is accused of already constitutes a less serious crime or misdemeanour. Relating to what has been stated the effect understood to be achieved is a conciliation when the minor recognizes the damage caused to the victim and apologises directly to him or her, and his or her apologies are accepted and it is understood by reparation to mean a commitment taken on board by the minor (agreed with the victim or the person harmed by the act) to carry out certain

The corresponding skilled team carry out the functions of mediation between the minor and the victim or aggrieved party, to the effect indicated in the above, and will inform the chief Prosecution concerning the commitments made and their degree of fulfilment. Once produced, the conciliation or commitment of reparation made with the victim (or party aggrieved by the crime or misdemeanour) or when one or the other cannot bring this to effect because of matters beyond the will of the minor; the chief prosecution will take it for having been other caused by other factors than that related to the will of the minor, the chief prosecution will conclude instruction and apply to the judge for the closing of the case and filing, referring what has been done. In the case where the minor doesnâ&#x20AC;&#x2122;t comply with the reparation or educational activity accorded, the Chief Prosecution will continue carrying out the expedient. In cases where the victim of the crime is also a minor or incapable, the commitment which refers to the present article will be assumed by the legal representative, with the approval of the judge of the juvenile court. The said text of art.19 LORMCM constitutes, ultimately, an important manifestation of a solution of the mediation or reparation kind of the conflict between victim and the minor or aggrieved party which if possible can consist in the conciliation or reparation. The conciliation implies as much the recognition of the damage caused by the minor as the asking for forgiveness from the victim and his or her acceptance of this. The reparation includes just as much the minorâ&#x20AC;&#x2122;s commitment to carrying out actions for the benefit of the victim or of the community, as its effective realization, or the commitment to carry out educational activities proposed by the team and its report.

Article 51. Substitution of the measures

1.During the execution of the measures the Judge of the juvenal Court qualified for passing the sentence would be, of an office of, or at the behest of, the Chief Prosecution, lawyer of the Minor or of the Acting administration, and heard by both parties, as also by the restoration team and the representation of the public body for the protection and reform of Minors, leaving without effect those or substituting those for others which are estimated more adequate within the provisions of this Law, for the same time or less than for the rest for its completion, always when the new measure could have been initially imposed attending upon the crime committed. All this without prejudice what has been presented by part 2 of the previous article and according to article 13 of the present Law.

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Good Practices of Restorative Juvenile Justice

Legal Framework in the Spanish State

2. When the Judge of the juvenile Court has substituted the measures of imprisonment in a semi-open or open prison and the minor has progressed favourably, in the presence of the minor’s lawyer, it is possible to leave without effect the substitution, returning to apply the measure that had been substituted for imprisonment in a conventional institution. Equally, if the measure imposed is of imprisonment in a semi-open institution and the minor’s behaviour has worsened, the judge of the juvenile court could substitute it for that of imprisonment in a conventional closed prison, when it is a criminal act on which has been imposed one of the previsions in article 9.2 of this Law.

The team puts itself in contact with the victim to find out his conformity or nonconformity with participation in the mediation procedure. This will be through the attendance in person before the team or by any other means which allows for consistency. If the victim is a minor or incapable then this consent should be confirmed by his legal representatives and be made known to the relevant juvenile Court Judge.

3. With the conciliation of the minor with the victim, at any moment in which an agreement is produced between them which is referred to in article 19 of the present Law, it is possible to not affect this measure imposed when the Judge, on the proposal of the chief prosecutor or that of the lawyer of the minor, having already heard the Team and the Representation of the Public Body for the Protection or Reform of Minors, could then judge that the said act and the duration of the measure already completed, has sufficiently constituted the response called for by the minor’s acts. 4. In all the previous cases, the Judge will resolve with his or her own autonomy, against which could be interposed the resources set out in the present Law. On their side, the articles 5, 8 and 15 from RD 174/2004, of the 30 of July, of the Regulation of the LORPM develop the form of carrying out the mediation

Article 5. Way of carrying out the extra judicial solutions.

In the course put forward in article 19 of the Organic Law 5/2000, of 12th of January, regulating the penal responsibility of minors, the procedure will be the following: If the Chief Prosecutor decides, in the view of the concurrent circumstances or at the behest of the minor’s lawyer, the possibility of desisting in the continuation of the expedient will be considered and the team will be informed about the proposed agreement to adopt the more adequate extrajudicial solution in the interests of the minor and the victim. Having received the support from the team, the presence of the minor will be arranged with his legal representatives and his defence lawyer. The Specialized Team will explain to the minor the possibility of an extra-judicial solution set out in article 19 of the Organic Law 5/2000, of the 12th of January and will listen to his legal representative. If, after an audience with his lawyer the minor accepts some of the solutions which the team proposes if possible in the same act, the agreement of his legal representatives will be sought. If the minor and his legal representatives do not affirm the acceptance of an extra-judicial solution, the team will communicate this to the chief prosecution and will initiate the drawing up of a report which alludes to article 27 of the Organic Law 5/2000, of the 12th of January.

If the victim shows himself in conformity with participation in the mediation, the team will set up a meeting between both to settle the agreements for conciliation or reparation. Nevertheless, the conciliation and reparation could also be carried out without a meeting, at the request of the victim by whatever other means allow consistency with the agreements. The direct or social conciliation or reparation not being possible, or when the team considers it more suitable for the interests of the minor, it will be proposed to him or her to carry out socio-educational tasks or services in favour of the Community. The team will let the Chief Prosecution know the results of the process of the mediation, the agreements reached by both parties and the extent of their fulfilment or, in another case, the reasons for not having fulfilled the commitments reached by both parties in the manner of that set out in article 19.4 and 5 of the Organic Law 5/2000 of the 12th of January, regulating the penal responsibility of minors, the Specialized Team will consider it convenient that the minor carries out a reparatory or conciliatory activity with the victim, and will inform the Chief prosecutor and the Minor’s lawyer to that effect. If the Chief Prosecutor appreciates the possibility of desisting in the continuation of the expedient, he or she will apply for the Specialized Team to make a report about the most appropriate extra-judicial solution and will follow the paperwork set out above. That made available in this article - 51.2 of the Organic law 5/2000, of 12th of January, could be made applicable to this in its regulation of the penal responsibility of minors, without prejudicing the jurisdiction of the public body and that set out in art, 15 of this ruling. The references made to the Specialized Team in this article are understood to relate to the public body when, in conformity to what is established in article 8.7 of this ruling, the said entity carries out the roles of mediations.

Article 8.7 ‘’Without prejudicing the functions of the mediation attributed in Article 19.3 of the Organic Law 5/2000, of the 12th of January, regulating the penal responsibility of minors for the corresponding teams, also the public entities can put at the disposal of the chief prosecution and the judge of the juvenal court, in each case, the necessary programmes for the carrying out of the functions of the mediations which allude to the said article.’’

Legal Framework in the Spanish State Project CONSENSUS Nombre Del Capitulo

Project Legal Framework CONSENSUS in the Spanish State Nombre Del Capitulo

Good Practices of Restorative Juvenile Justice

Project Legal Framework CONSENSUS in the Spanish State Nombre Del Capitulo

Article 15. Revision of the measure for conciliation.

If during the execution of the measure the minor manifests the will to conciliate himself with the victim, or aggrieved party, or to give reparation for the damage caused, the public entity will inform the judge of the juvenile court and the chief prosecution of the said circumstances, carrying out the functions of the corresponding mediation between the minor and the victim and will inform them of the commitments answered to and their degree of fulfilment, the Judge and the Chief Prosecution, to the effect of what has been set out in article 51.2 of the organic law of 5/2000, of the 12th of January, regulating the penal responsibility of minors. If the victim is a minor, authorization should be re-obtained from the judge of the juvenile court in the terms of article 19.6 of the cited organic law. The functions of mediation carried out with minors in detention centres shall not result in an alteration of the compliance regime of the measure imposed, without prejudice to the exits for that purpose authorized by the juvenile court jurisdiction. l

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

GOOD PRACTICES CONCERNING RESTORATIVE JUVENILE JUSTICE IN THE SPANISH STATE Good practices have been selected from different Autonomous Communities. For this has been made a documentary summary and a questionnaire of identifying good practices has been used based on the tools of the European Crime Prevention Network EUCPN (European Crime Prevention Network): ‘’A Methodology for Assessing Good Practice Projects and Initiatives’’. This questionnaire is given to the persons responsible for Juvenile Justice and for the programmes for the mediation of the different Autonomous Communities who we thank for their collaboration. All the information given has been analysed qualitatively, using a descriptive method, it being considered more adequate in terms of the objective of the project: analysis and compilation of information about experiences in restorative juvenile justice in context of the EU. Although all the Autonomous Communities share the same Legal Framework, in practice, the mediation Programmes are adapted to their context, in the sense that even within the same Community different practices can be found.

Project CONSENSUS Good Practices Restorative Juvenile Justice In the Spanish State Nombre Delconcerning Capitulo

Good Practices of Restorative Juvenile Justice

The juvenile court before the gender violence. M ª Jesús Millán de las Heras. Head of the Juvenile Court No 2 of Madrid.

Andalucía Project CONSENSUS Nombre Del Capitulo

ANDALUCÍA In some provinces, the Public Entity, and the Council for the Public Administration of the Andalucía Government, develops mediation programmes through the meetings with different entities and in other cases it is the specialized teams which carry out the mediation. In the provinces of Seville, Cordoba, Cadiz, Granada and Malaga there are mediation teams formed by different professionals (from 2 to 4 specially trained members of each team). But the provinces of Huelva, Jaen and Almeria do not have specific mediation teams. Cádiz.- From September of 2007, the external Service of Mediation and Conciliation began to come into force, after the signing of an agreement in a meeting between the Andalucian Government and the Alternative Open Association. By this, they are not just looking for the promotion of the Conciliation, as the most adequate way for the resolution of milder conflicts, but are also lightening the workload of some of the professional teams, to reach that conciliation means doing a varied job of interviewing minors, parents and victims; to make a proposal of conciliation and reparation, in this case, as well as checking and controlling the previously complied with requirements. Nowadays, there are two teams for mediation, conciliation and reparation in the province of Cadiz, one for the geographic area of the bay including Jerez de la Frontera and another for the Campo de Gibraltar, which are directed by the cited entity. The report about the situation of the minor in Cadiz, written in 2009 by the Association for Human Rights considers that the possibility of mediation, conciliation and reparation are fraught with difficulties and that it would be necessary to promote the meetings with the Institutions and Councils to be able to put into practice with the maximum celerity the alternative judicial measures (work for the benefit of the community, etc.) applied to the young offenders5. Córdoba.- Mediation programmes started to be applied from 2003, through the collaboration between the Justice and Administration Department of the Government of Andalucía and the ONG APDHA (Association for Human Rights from Andalucía). The mediation Team of minors from APDHA, is formed by a Bachelors Degree in Law and another in Psychology and/or Social Work, with specific training in penal mediation and long experience working with minors in judicial as in extra-judicial placements. Although the mediation between the parties involved in the acts which might constitute a penal offence could take place at any moment, even once the sentence has been passed, in practice intervention is carried out when the Chief Prosecution brings the expedient to the mediating team for the purpose of developing the process of the mediation between the parties. The Prosecution of Minors - the ministry of juvenile justice sends the case to

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

the service corresponding to the Government of Andalucia (the Juvenile reform delegation) which in its turn issues this to the mediating team, after having made a copy for its own archives. After having studied the case, the mediating team arranges a meeting between the accused minor and his parents or his guardian and his Lawyer if he has one, for the purpose of presenting them with the proposal for mediation. In the first instance, the mediating team meets with the parties in an individual manner, informing them of the characteristics of the mediation procedure. Previously, there has been carried out the interview together with the parties involved in the conflict. In an exceptional case, this could be carried out without the victim and the offender having to meet directly. The mediation could conclude with an agreement or without it and if it proceeds there will be carried out a continuation of the completion of the agreement. If it proceeds then results of the mediation will be given in referral to the Prosecution through a final report6. The paper of the Chief State Prosecutor of 2008 points out that the Chief Prosecutor for Cordoba, confronting the volume of work, has had to accord the desisting for misdemeanours when not accompanied by precedents, evaluating that there does not exist unassailable economic damage for the injured party. Generally, once the age and the truth of the accusation have been verified, the reformative proceedings have been set in motion, even though there are certain assumptions, almost always for acts which constitute a misdemeanour, where the declaration has been received from the minors and the situation has been confirmed, the decision to waive being checked, normally with the intervention of the Specialized Team, that it is not opportune to use the full penal measures or that there having been reparation, or correction in the family or educational context. The said facts have allowed the detection of situations which are worth intervention as much from the point of view of reformation as protection. In the assumed case of a serious crime, there is always an opening of the procedure of reform. The Chief Prosecution of Cordoba also considers that the principal difficulty which is to be encountered in the extra-judicial reparations is the urgent pace of the initiation of legal proceedings and the delays in the naming of the lawyer. In this sense there is proposed that at least in the cases of a misdemeanour, counting on the minor owning up to the acts and consenting in the process of mediation, as well as the on the consent of the legal representation, a lawyer’s intervention could be dispensed with, seeing as in the majority of the cases the role is only limited to attending the minor in his or her declaration, without any other intervention, and it entails a delay in the paperwork of the proceedings and an expense for the family7.

Project CONSENSUS Andalucía Nombre Del Capitulo

Good Practices of Restorative Juvenile Justice

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

Granada.- The Council for Justice and Public Administration held a conference of collaboration with the Association IMERIS (Intervention with Minors at Social Risk), to develop a programme of mediation in this province. The general procedure of the interventions includes the following phases: Derivation, evaluating viability, execution and following the steps (with the participation of the victim or without it) and a final evaluation.

open the case. This is without prejudicing the application for the later stay of judgement, in conformity with article 19 LORPM, when the legal requirements are given8. Sevilla.- In 2002 the conciliation and reparation team of the non-governmental organization ‘’Open Alternative’’ is constituted by 4 members from different areas of Social Science, social work, teaching and one criminal psychologist to develop a programme of conciliation and reparation, through convening with the public justice and administration bureau from the Andalucian autonomous government9.

Huelva.- In agreement with what was set out in the paper by the General State Prosecution of 2008 in Huelva, the extra-judicial measures are carried out by the Specialized Teams. The work already in place makes possible that they can work and develop these measures by themselves and they do not have to refer to the autonomous independent bodies which carry out this mediation. This allows the interview with the professionals who constitute the team, to offer a real vision of the possibility of reparation and the involvement of the minor in it. This prosecution ratifies the excellence of the work developed in this field, with the deep personal involvement of the teams, which also carry out trips to villages and secondary schools and is achieving very good results. The provincial prosecution of Huelva refers to how extra-judicial reparation is more distinguished in the carrying out of expedients where there is a crime against moral integrity: one in which some minors attacked a homeless person who was spending the night inside a cash-point. The extra-judicial activity was carried out in an Association committed to the attention of the homeless. Minors should carry out a complimentary activity which is of 82 hours, 36 of these are in the association where they have been in direct contact with the users, collaborating with the needs of this collective. The same prosecution has also distinguished itself in the restorative activities carried out in the day centre, where workshops are always carried out of different types, and address a great spectrum of activities which are of concern and interest to the minors, from workshops for healthy life to cooking, the control of impulses and traffic safety. The provincial prosecution of Huelva refers to having decided to apply the principal of opportunity in respect to misdemeanours if it is legally possible, in agreement with that set out in article 18 LORPM. The said pronouncement has an exception in the case of committing minor crimes by re-offending minors which show a greater element of cruelty, for example in the cases where, while not reaching the status of serious crimes against moral integrity, they affect the vulnerability of other minors. Also special attention is given to damage in the case of public spaces, where usually the proceedings are commenced despite it being legally possible to desist. In the majority of the withdrawals the victims are heard first and also the young offenders before deciding on this procedural solution, to try to conciliate all the conflicting interests. As a general rule, with the serious crimes which are not brought under the principle of previous opportunity it is not expedient to

The Programme for the conciliation and reparation is orientated towards all young people between the ages of 14 and 18, from Seville and its province who have committed a crime or misdemeanour, for those who the chief prosecution has opened the case and accepts the carrying out of an extra-judicial solution. This attends to those minors and young people who comply with the judicial measure and when it is esteemed to be appropriate and valid to initiate a process of mediation. The process of conciliation and Reparation could be carried out at any time during the Judicial Process. Experience is that this is to be carried out fundamentally in an initial or at first presentation. (Art.19 of the L.O.R.R.P.M.) In the paper by the General Chief State prosecution of 2008 it is included that for the Chief Prosecution of Seville, the extra-judicial measures, conciliations and reparations, carried out by the operations team, which puts itself at the disposal of the minors department has had some extraordinary results, being proved that after a year, those minors had not re-offended except for a small percentage. In the Training courses for the Judges and Magistrates organized by the AUTONOMOUS GOVERNMENT OF ANDALUCIA and the GENERAL COUNCIL OF JUDICIAL POWER, which took place in Seville on the 11th and 12th of May 2009, there was celebrated a Round Table concerning ‘’Restorative Justice: Conciliation and Mediation extra-judicial and inter-judicial. Reparation: victim or Society’’ of which were obtained the following conclusions10: s Mediation in the context Juvenile Penal Law requires that specialized and

specially trained Mediation Teams are created and empowered, it not being desirable that they also carry out the role of putting together the reports legally demanded for the imposition and modification of judicial measures. s Inter-judicial mediation should also be empowered to act as a form of pacification of conflicts between persons obliged to live together in a family or in other contexts such as the neighbourhood or school environment.

Project CONSENSUS Andalucía Nombre Del Capitulo

Andalucía Project CONSENSUS Nombre Del Capitulo

Good Practices of Restorative Juvenile Justice

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

Good Practices of Restorative Juvenile Justice

Project CONSENSUS Andalucía Nombre Del Capitulo

_Procedures for legal tasks and expedients_

ARAGÓN Manuel Benedí, head of the Area for the attention of minors with social conflict for the Aragon Institute of Social Services, explains how in the Autonomous Community of Aragon the educators for an open environment carry out extrajudicial reparations. At present, in the Area of the Attention for the minor in social conflict in Zaragoza, (that serves more than 90% of cases), there work two educational teams, for crimes and minor misdemeanours, and the EMA, (team for open environments), that is in charge of the execution of the measures which do not require imprisonment, and to carry out extra-judicial conciliations and reparations. The fifteen educators of EMA have received specialized training to work in the mediation, conciliation and reparation activities. During the first quarter of 2009 216 minors arrived in EMA, sent from the chief prosecution for minors to make extra-judicial reparation, 154 boys and 62 girls. The crimes or misdemeanours committed by the minors were sent to reparation in the year 2008 they were the ones shown in the box included.

Project CONSENSUS Aragón Nombre Del Capitulo

_Period: 20-02 to 31-12 of 2009_Total reparations accepted: 366_

Project CONSENSUS Arag贸n Nombre Del Capitulo

Good Practices of Restorative Juvenile Justice

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

The interview with the minor, established by the Chief Prosecution, is done in the presence of their parents and the assigned lawyer. At the same time they are informed about the reason for the intervention and a possible extra-judicial solution. Once the interview is finished: if the minor assumes the responsibility for the misdemeanour committed, expresses his desire for reconciliation with the victim, shows the wish for repairing the damage done and participates actively in the solution of the conflict that is when it can be considered that the minor is prepared to solve the issue through the extra-judicial mediation.

signed before (there is usually given a report of the services carried out), of the participation of the victim in the process and the application for the archive of the actions once the established objectives have been achieved11. _Jurisdiction Of Minors_

The contact with the victim is later; it is made after being confirmed that the offender has the established conditions to participate in the Programme. The victims are usually surprised about the fact that someone connected to the Chief prosecution becomes interested in the damages that they have suffered and offers them the possibility of an extra-judicial reparation, where the aggressor is going to compensate them economically for the damages that he or she may have caused and is going to apologize, and then can also talk to them if they want to and explain personally the damages that the aggressor has caused in their daily life by the crime committed. Most of the victims accept the extra-judicial reparation. They feel the centre of the process and value the resolution of the conflict as positive and efficient. They also consider that the judicial procedure has stopped, with all the advantages that this involves. Depending on the summary of the aspects of the interviews and of the interests of both sides, the mediator will evaluate the possibility or not of carrying on with the extra-judicial process and which way this should be done (conciliation, direct or indirect reparation)

1. Report of appearance in EMA. In this report there is summarized the appearance or not of the juvenile offender in the set date by the chief prosecution of minors. Admission or not of the reported facts and their agreement about the possibility of accepting the reparation and starting the transactions. 2. Agreement on reparation. It is useful to fix in writing the general obligations, to which the minor is committed when the process starts. 3. Report for the chief prosecutor giving details, in a concrete manner, about all the aspects and possibilities of the reparation, including an educational evaluation. 4. Settling the agreements. The quantities to pay are fixed exactly, in the case where it is a civil responsibility. And there are also detailed the tasks, services and activities in relation to penal responsibility. 5. Final report. It is showed briefly to illumine the situation of the minor, of the proceedings carried out, the fulfilment of the reparation agreements 32

Project CONSENSUS Arag贸n Nombre Del Capitulo

The communication between the Chief prosecution ministry and EMA is permanent. At a minimum, the following reports are carried out:

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

Good Practices of Restorative Juvenile Justice

Project CONSENSUS Arag贸n Nombre Del Capitulo

ASTURIAS The functions of the mediation are carried out by the Specialized Team, but also count on the collaboration of the Red Cross in the process of the execution of the measures. The programme for the Extra-Judicial Mediation with Minors Offenders has been carried out by the Principality of Asturias, in collaboration with the Spanish Red Cross and is working from 2005. The functions of mediation are carried out by the psychologist and social worker of the Specialized Team of the Red Cross. The execution of the reparation activities are conducted by the educators, and the voluntary workers acted as a support in the completion of these reparation activities. The mediator is asked for a degree in the social field and a course in mediation, also experience in working with minors at risk in their social environment. The functions they are assigned with are the following: s Contact and interviews with families, minor and victims. s Co-ordination, sessions of mediation, execution of activities of social reparation. s Follow-up actions. s Support and orientation. s Training and management of voluntary workers In order that the minor offender can access the mediation programme he must be between 14 and 18 years old and not to have a previous record. The infractions to which it is applied are more often the following: bodily harm, aggressions, threats, verbal abuse, robberies and thefts. The basic requirements for participation can be classified in two categories:

capacity. The methodology used in the mediation requires the carrying out of previous work with each of the implied parts. The phases followed in the process of mediation are: initial phase, phase of the evaluation of the viability of the mediation with the victim, phase of clarification of the process of mediation, the phase of meeting and the phase of follow-up. The process takes about one or two months relating to conciliations. And two to three months if there are reparation activities. The programme of mediation differentiates four blocks of objectives: s s s s

Objectives related to the minor. Objectives related to the victim. Objectives related to the family. Objectives related to the Community and the Judicial System.

Project CONSENSUS Asturias Nombre Del Capitulo

s Requirements of Legal Consideration that appear in the Law 5/2000. s Requirements related to the minor: Responsibility, willingness and

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

There is a protocol during the whole intervention with some documental support prepared for that. There being a paced process allows a continuous evaluation - evaluating if the previous results are reached. To carry out this evaluation there are taken into account a series of indicators and defined instruments that allow us to know the degree of achievement in terms of the educative objectives set for each minor.

The carrying out of these Programmes enables the reduction of the social and economic costs of the conflicts, because the sides involved donâ&#x20AC;&#x2122;t have problems any longer and it avoids carrying on with the judicial process. The Asturian Red Cross has a very wide territorial operation with 22 offices, which involves bringing the programme to the minor and victims where they live.

Internal and external evaluations are made. Related to internal assessments, during January and February, the mediation team meets for the annual evaluation programme, quantitative and qualitative results and revision of the protocols and methodology. Weekly meetings are held for the supervision and evaluation of the cases and the development of the programme. Concerning the external evaluation, two half-yearly meetings are carried out in June and September by the Joint Committee of the Programme which is for the following: The Justice Department, Service for the Justice of the Minor and the Red Cross. This is the follow-up of the actions and their evaluation. Another annual meeting is carried out as well, in February, with the Specialized Teams, the Chief Prosecutor of Minors and the Justice Service. This has the aim of evaluating the development of the Programme. In Asturias there is being carried out some follow-up research of the young which fulfils the measures of penal responsibility, in collaboration with Oviedo University. Among other issues there have been analysed the results of the mediation Programme and the level of re-offence with minors who have been through it, from year 2005 to 2008. The Programme serves to find antisocial behaviours that could be the origin of other more serious offences. And in this way there works a secondary prevention. With this, re-offences can be prevented, because there is expected to be a learning and educational experience working towards the responsibility of the minors. This type of Programme is good for: s The offender: who is made to take notice of his actions and see their

consequences, which is to say, reflect on conduct that promotes the view of the victim as an individual. He or she has a space for attention and a place to voice fears and demands. Moreover, alternatives are offered: information and help is given to resolve the conflict in a fair way. Also it becomes a space to address the material, physical or psychological damage. s Justice: The mediation allows the penal response to have a reparatory function and to not be just the imposition of a sanction on the agent. It is fast not just in the proceedings but also in the penal response. s Society: It improves life together; it doesnâ&#x20AC;&#x2122;t generate resentments or fears from one part or the other. It creates trust putting the end to the conflict. 36

Here are pointed out some remarkable innovations, and other beneficial aspects of the Programme; s The carrying out of the mediation at the residential place of both

parties. s The use of the Red Cross Programmes for the reparation activities. s The volunteer team collaboration is support for the fulfilment of the

extra-judicial measures that are also used as models and positive reference points for the minors. s Follow-ups after the fulfilment of the measures with support and orientation actions. s Mediation in cases of School violence The paper of the Chief Prosecutor of Asturias of 2008 shows that the extrajudicial Mediation Programme carries on working successfully in the majority of the derived cases, and also that in the same year there were 107 issues, of these the Mediation Programme was in charge of 81 cases within a total of 98 off implicated minors and 36 victims, trying mediation solutions in 32 cases, that there were not reached only in 7 cases, in another 49 cases the objective was the fulfilment of the extra-judicial socio-educational task (23) and community service (26). _Crimes_ Project CONSENSUS Asturias Nombre Del Capitulo

Project CONSENSUS Asturias Nombre Del Capitulo

Good Practices of Restorative Juvenile Justice

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

Good Practices of Restorative Juvenile Justice

CATALUÑA It was one of the first Communities that developed the mediation Programmes, starting in May of 1990. Although the mediation, reparation and conciliation Programmes historically originated in the movement of the victim support, in Cataluña’s case, the Programme didn’t originate from the specific objective of victim assistance, but rather with the objective to make the minor as offender take on board the responsibility for his own acts. The case is to establish channels for dialogue in a balanced process between the victim and the offending minor, to try to solve the conflict through the orientation of the mediator. Some of the objectives that come with the development of these Programmes are: s To encourage a less retributive justice, more participative, reparatory and peaceful s Integrate the response to the crime and the solution to the conflict, satisfying solutions for justice, the victim, the offender and the Community. s Reconcile the traditional re-socializing of the criminal with the reinforcement of the rights of the victim thus trying to have more constructive results. s Make possible an active and discursive participation in the solution of the victim’s conflict, the young offender and the Community. s To stimulate the offender young’s reflection about his/her own actions, helping him/her to understand better the causes and effects of his/her behaviour, responsibility and the reparation of the harm caused to the victim. s To promote the reparation of the victim, trying that the victim could express the consequences for the crime, contributing for the victim to feel more safe and overcame the victimization. The conciliation and reparation need the voluntary participation of both active members. It involves making the young person responsible for their own actions and their consequences as much as an effort on the path to compensate the victim12. The Catalan13 juvenile justice system is based on what is denominated the 6030-10. 60% of young offenders are treated in programmes of a semi-open nature which is to say measures such as liberty under surveillance and community service. 30% of the programme is mediation and reparation and the 10% leftover is in socio-educational Juvenile detention centres. Every year about 7000 minors enter into contact with the juvenile justice system; close to 3% of the population between the ages of 14 and 17. On reflection we should take into account that Catalonian parents have a 3% chance of coming into contact with this system.

Project CONSENSUS Cataluña Nombre Del Capitulo

Project CONSENSUS Asturias Nombre Del Capitulo

_Sentences_

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

The profile of young offenders is 82% male, with an age of 17. 75% are from the province of Barcelona. 85% do not have previous criminal records, and therefore only 15% are re-offenders. 60% of the offences committed are crimes against property or penal offences which are considered to be less serious. It is in this that the programme for mediation and reparation has its place as a mechanism for the resolution of conflicts. If the conflict also takes on an extrajudicial form where both sides search for a solution and some agreements, the final results and judicial benefits which are applied correspond to the formal penal framework. Following the data for 2008, the programme for mediation has been applied to the types of offences listed below:

Specialized Teams are formed by mediators, psychologists and social workers coordinated by a person responsible. They count on administrative support. Each team has a territory - a determinate area, which corresponds with the areas of intervention of the specialized teams who work with supervisional measures14 and therefore, the coordination is better.

s s s s s s

37% Misdemeanours and crimes against property 12% Crimes against property and persons 25% Bodily harm 13% Other kinds against persons 4% Mistreatment and domestic violence 9% Others

The mediator should evaluate the viability of the programme through the following criteria: s The young person must take responsibility in relation to the damage or harm caused. s The young person must clearly show his/her will to conciliate with the victim and/or repair the damage caused. s The young person must have the capacity to conciliate with the victim and or compensate him or her, or to complete an educational activity. This requires that the young person has to have the aptitude for understanding and carrying out the alternative which is offered them. s The minor has to understand that he or she possesses the right to solve the conflict with the victim and with the justice through conciliation and reparation, but they also have to take on the commitment to participate actively in the process.

The mediators only have assigned functions related to the mediation and reparation. All of them are asked to have specific training in mediation and penal reparation. The administration has established a demanding 40 annual hours on specific topics related to the mediation. The mediator is assigned the following functions: s To carry out the process of mediation and reparation. s To promote the young offender’s reflection on himself and the victim and

evaluate the viability of the mediation. s To promote the encounter between both parties; facilitate

communication, the dialogue and the involvement of both parties and to make the process of the mediation more dynamic. s To help the sides to find solutions and to make more concrete the agreements for reparation. s To manage the activities for reparation. s To inform the prosecution of the viability of the mediation and the result of the process. The programme foresees the following phases and actions: a) For the special team to arrange a meeting with the presumed offender and his/ her parents s Provide a sheltered environment and information for the young person

and his parents. s Individual reflection by the minor in relation with his acts, to the

conflict and to the participation in the mediation. From the total of the applicable programmes, the chief prosecution authorizes for consideration as viable, between 30 and 35%.

s Reflection together with the young person and his or her parents. s Evaluation of viability.

To carry out the functions of the mediation, the general management counts on the Service for Mediation and Advice Technical (SMAT) which advises Prosecutors and juvenile Judges and also represents a doorway into the first framework of citizen relations concerning juvenile justice. It is also the first step in relations and coordination for the judicial bodies, prosecutors and judges with jurisdiction over minors.

b) Letter to the victim informing and inviting him or her to put themselves in contact with the mediator

Within this service are devised the technical directives for the application, coordination and control of the programmes of advice and mediation for the whole of Cataluña. 40

s Shelter and information for the victim. s Reflection with the victim in relation to his or her acts, the conflict and

to the participation in the mediation. Reflection together with the young person and his or her parents. s Evaluation of viability.

Project CONSENSUS Cataluña Nombre Del Capitulo

Good Practices of Restorative Juvenile Justice

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

c) Reflection by the mediator concerning the conflict, the position of the parties, the possibilities of the mediation, or to carry out community service.

the conflict from a broader point of view than that delimited by the criminal act; to solve the problem; avoid judicial proceedings and a possible sanction or to reduce it. s For the victim: To receive consideration and be heard in relation to the consequences of their victimization; to have the opportunity of participating in the solution of the conflict and in the decision about the terms of the reparation; to take on board the conflict from a broader point of view than that imposed by the criminal act; to overcome anguish, fears and the sense of being made into a victim. s For justice: To bring justice closer to citizens and that it be more comprehensible and sensitive; to develop a dynamic of participation and dialogue able to generate peace in society; to contribute to generating a social perspective on social justice which is less punitive and retribution and to solve a higher percentage of conflicts by extra-judicial means freeing time and resources for other causes. s For society: To obtain spaces for participation and decisions for citizens in their resolutions of conflicts which affect them; make available peaceful alternatives for the solution of conflicts and contributions which create social peace; benefiting the recovery and integration of the citizens directly and indirectly affected by the conflicts.

d) Meeting between the parties, the victim and the young offender: reflection concerning the acts and the conflict, communication, dialogue and agreements for reparation. e) Following the fulfilment of the agreements. f) Information to the Chief Prosecution. Thanks to developing mechanisms for information gathering and the permanent supervision of these processes, systematic evaluations are carried out for these programmes, (on finalizing each mediation, a sheet is filled out about the process and results, which allows a periodical evaluation of the programme). Also there is an evaluation of the results in which the qualified adviser of the General Management of Alternative Penal Measures takes part and which is set down in the annual report about the development of the programme. In this evaluation is obtained a high success rate in the mediation processes initiated (77% of the processes end positively). There has also been research and studies by outside professionals of the institution. The main difficulties which arise in practice are: s The lack of a mediation culture, the dominant values, the custom of

delegating the management of problems in institutions and letting them decide, the weight of the tradition of punishment and sanctions. s The difficulty of obtaining an initial space for reflection with the victim. s The difficulty of reflecting on the consequences of his or her action and the victim and their responsibility when the offender finds himself in the penal context. s The difficulties of promoting places for meetings with the victim even when in agreement with the mediation, time, travel requirements, difficulties of daily life etc. The programme is orientated mainly towards young people with a first offence up to the third crime act. The re-incidence is 12%, less than with other programmes. Therefore, from the preventive point of view it is considered a good tool. Here are pointed out how the mediation brings a beneficial result: s For the offender: To have the opportunity to participate in the solution

of the conflict that has been created and in the decision about the form of the compensation; to reflect on their own actions and its consequences; increasing their responsibility and their independence; taking on board 42

These types of programmes apart from reducing the workload of court cases for minors (mediation solves annually an average of 30%- 35% of conflicts), makes possible that the processes are more wieldy, less costly and leave both parties more satisfied. There is a reduction in the social costs in the matter of greater youth responsibility, and also in the dynamic which provoke re-offence; the victims recover and this contributes to social harmony. Moreover, a great part of the costs of the cases are avoided and of those interventions, even more costly, further off in time from the acts. The mediation and the reparation are a clear example of the new politics of crime in the sense of the greater taking into account of the victim’s rights and situation and without diminishing those rights which are sought by the offender minor. Following the report of the Chief State Prosecution 2008, the prosecution of Barcelona notes that during the year 2007, being up-to-date with the work for the Department for Minors, they tried to be more scrupulous and unanimous in their criteria among all the staff of the prosecution at the time of favouring the application of the waiving of sentences and the greater measures of reparation once the disciplinary proceedings had been opened. This gives not simply a filing of the case or the giving of an appearance that could mean impunity but a real non-penal response to the minor’s actions.

Project CONSENSUS Cataluña Nombre Del Capitulo

Good Practices of Restorative Juvenile Justice

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

Good Practices of Restorative Juvenile Justice

MADRID Following the explanation of Santiago Madrid Liras15, ‘’The Madrid Community Agency for the Re-education and Re-insertion of the Minor Offender” developed the Programme for Extra-judicial reparations, whose principal function is to carry out the extrajudicial reparations applied for by the Prosecution for minors. The programme counts on the Director of the Programme, six specialized mediators and six Day Centres (shared with the programme for the execution of semicustodial measures). From the area for the Minors in Social Conflict is developed this programme in the following possible modes, which can be contemplated in the Law of 5/2000.

_Procedures for legal tasks and expedients_

In the first mode the participation of the victim can be counted on and conciliation is the issue. It is identified as an educational intervention which implies the confrontation of the offender with the motivating force of the crime and with its consequences and for the taking on board of responsibility for their own actions and the must for compensation for the victim through the asking for forgiveness and or through the carrying out of an activity. Distinguished for the importance it gives to the will of the offender and victim. The methodology employed for bringing about offender-victim contact uses negotiation techniques where a neutral third party, mediator, facilitates the encounter between the parties giving them the protagonists in the resolution of the conflict. In the second mode the participation of the victim cannot be counted on, if not identified or because after establishing contact with the programme of Extrajudicial Reparations has rejected participation in the process of the mediation, and an Educational Activity is talked of. On this occasion is developed the possibility, contained in the L.O.R.P.M that in determinate circumstances the Prosecution could orientate its completion of an educational activity as an alternative to a judicial process. From this programme whose choice is contemplated when the victim is not identified or is not desiring of participation in the process of mediation. The prosecutor accepts that the activity proposed by the especially skilled team is adequate, in content and quantity, as a response to the offence committed by the minor and the characteristics of the same. Ana Rodriguez Gil16 indicates that the distinct Centres from which are carried out judicial measures and Extra-judicial Reparations, there attend minors following geographical location, which permits them to perform different activities in places close to their places of residences. Through the Programme of the Agency of the Community of Madrid for the Reeducation and reinsertion of the minor offender there is an attempt to provide a distinct framework for the resolution of conflicts and to give power to new forms of reaction against offences committed by minors.

Project CONSENSUS Madrid Nombre Del Capitulo

Project CONSENSUS Cataluña Nombre Del Capitulo

_Offences_

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

Good Practices of Restorative Juvenile Justice

Project CONSENSUS Madrid Nombre Del Capitulo

From the Programme of Extra Judicial Reparations, where a meeting has previously taken place or where an agreement has been met with the victim, comes to the Team the paper to be completed in which appears reflected which type of restorative activity which has to be done by the minor: Indirect reparation, direct reparation or the educational activity, and both the content of the tasks to carry out (assistance, environmental, training or of another character) and the number of the sessions, which can never exceed 8, following the agreement.

_Crimes_

In continuation there are drawn up the design of the activities which drive the completion of the Direct Reparation, Indirect or Educational Activity and there is produced the inclusion and adaptation of the minor to the appropriate resources, having in mind their personal characteristics, family etc. After, takes place the interview with the minor and their legal representatives to progress towards the signing of the appropriate documentation to commence the action. The specially trained professional responsible for the action addresses the report of the completion or non-completion of the intervention of the Programme for Extra-judicial reparations, in which are established the days and hours of the carrying out, as well as the degree of involvement, motivation, effort made, interest in the correct fulfilment, responsibility on the part of the minor, integration in the group etc.

Additionally, if the victim (individual, entity or private or public company) desires compensation of as a direct benefit, through the carrying out of preoperational activities according to the characteristics of the minor, it will be procured, always under the agreement made between both involved parties. If not like this, the minors will carry out activities whose benefits are third parties or themselves. In these interventions is produced a low number of non-compliance. Already, young people have identified their educational objectives, assuming with responsibility, initiative and motivation the activities in which they participate. Once having finalized them, the minors feel proud of their work done, appreciating that the effort that they have invested has benefited others17 .

Project CONSENSUS Madrid Nombre Del Capitulo

The activities performed by the minors should correspond with the character of the offence committed; this correspondence has been established as has been indicated above in the Programme of Extra-judicial Reparations, taking into account the existence of a relation between the acts committed and the character of the activities which the minor has to carry out.

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

The mediation processes have been being carried out since 1992 (law 4/92) although until 1997 there has been a few cases in particular and of no structured form. The plan for Juvenile Justice 2008-2012, sets out its objectives18:

Processes of mediation for conciliation and reparation of the damage, in the Autonomous Community of El País Vasco these are carried out by the Psycho/ social teams, depending organizationally on the Direction of Relations with the Justice Administration. These teams carry out functions of the Organic law of 5/2000 attributed to the Specialized Teams who also produce skilled reports on minors as victims.

PAÍS VASCO

s To empower mediation programmes, as in the previous Plan the

objectives marked out have not been reached for the processes of the mediation. In the current plan 2008 – 2012 there is an attempt to differentiate the possibilities which the law delegates to the specially trained teams, carrying out an evaluation in depth of these processes, analysing these from the perspective of justice as restorative, establishing some criteria and common procedures and defining the instruments for the gathering of information. To give power to these programmes of mediation it is proposed that they maintain a level 35% of the total legal procedures, through series of acts written in them. In the period of reference 2004-2007, there were put into place 4.325 measures and were carried out processes for mediation/reparation in relation with 1.698 minors. In accord with these figures the written processes are calculated as 28.19% of the interventions. There has been produced an important decline since the period anterior to 2000-2003, in which the figures were close to 40%. The change of tendency became more entrenched in the year 2003, maintaining itself up to the present. In the year 2007 the minors in the processes for mediation/reparation were 414 and the measures 1.147. Adding both together (1.561) resulted that the mediations/reparations mean 26, 52%; in the end it was far from the objective of 35% set out in the Plan. s Reinforce the perspective of the victim and the responsibility for the

damage in all phases: Instruction, passing sentence and execution. s Deepen the restoration perspective in the individual Projects for

Execution in the measures and in the educational intervention. _Mediation/Reparation_

According to art. 27.3. LO 5/2000, the Specialized Team could report about the possibility of carrying out a reparation or conciliation activity with the victim. According with what is set out in art. 19 LO 5/2000. In practice, the decision to proceed normally with the reformation or to take on board offender victim mediation is taken by the Chief Prosecutor. According to art. 27, 2 and or 4º, the specialized team can also propose intervention of a socio-education nature or the non-continuation of the proceedings, having already sufficiently expressed the response to the crime through the proceedings or practices carried out or for considering them inappropriate for the interests of the minor any intervention whatever, given the time that has passed since the committing of the acts. These possibilities seem undifferentiated in the information that the PsychoSocial teams gather, grouped under the generic term of mediation, despite in all cases there are not strict correspondences with a direct or indirect mediation with the person or the victim of the penal offence. The offences which have given place to the extra-judicial reparations and mediations, by order of their prevalence, have been: the aggressions and injuries, the damages, larceny, the threats and insults and robberies. The criminal acts directed against things have a greater weight (54, 02). Those named “problems in relationship” (insults, threats, aggression, etc.) constitute almost 42%. The mediations, in the broadest sense of the term, can be considered a good form of intervention in the resolution of serious conflicts among adolescents. In agreement with the data from the Psycho-social Teams, more than 84% of processes reach their finalization in a positive way, following the rest of the standard path for any penal procedure of minors. The data shows a tendency for negative conclusions, reaching the lowest level in 2007 with an 8.7%.The explanation of this phenomenon must be searched for in the variation in the criteria of information taken than in any change of tendency. An important part of the processes take place without a direct meeting: 45.75%. Based on what is set out, it will be necessary, in the next period, to differentiate the possibilities that the Law delegates to the specialized teams, to make a deep

Project CONSENSUS País Vasco Nombre Del Capitulo

Project País Vasco CONSENSUS Nombre Del Capitulo

Good Practices of Restorative Juvenile Justice

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

Project País Vasco CONSENSUS Nombre Del Capitulo

evaluation of these processes, to analyse the process from the Restorative Justice perspective, to establish some criteria and procedures of common actions and to define the instruments for information gathering19. In these assumptions, and by that set down in the Report of the General State Prosecutor 2008, the Prosecution of Guipuzcoa opts for splitting the treatment of the case in this way: For minors already charged in other proceedings, there is carried out the corresponding process of ordinary reform; on the other hand, for those who have committed a crime for the first time, there is given to the reparation and or conciliation, being always clear that the minors had recognized the facts and had shown their regret: the idea that presides in this different treatment it isn’t any different from the LORPM, that puts the interest of the minors first, as a higher priority, in a way that, those minors who have delinquency for the first time do not need to see themselves being submitted to the same treatment given to the re-offenders. _Prosecution of Álava_Crimes_

Project CONSENSUS País Vasco Nombre Del Capitulo

_Prosecution of Guipúzcoa_Crimes_

Good Practices of Restorative Juvenile Justice

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

*All the data is gathered in the Latest Report of the General State Prosecution (published 2009). 52

Project CONSENSUS País Vasco Nombre Del Capitulo

Project País Vasco CONSENSUS Nombre Del Capitulo

_Prosecutor of Vizcaya_Crimes_

Good Practices of Restorative Juvenile Justice

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

In Galicia, since the roles concerning the minor were transferred to the Galician Government (Xunta) in 1984, its procedures were divided between various Autonomic Administration Departments. The execution of the judicial measures is carried out by the General Management of Social Welfare, while the application of extra-judicial solutions corresponds to the specialized teams ascribed to the Courts for Minors, functionally dependent on the State Prosecution and organically on the presidential council, public administration and Justice. In recent years in Galicia, solutions other than legal processes are developed in an unequal way, with an increasing evolution in some courts and yet little in others.

Project CONSENSUS Galicia Nombre Del Capitulo

GALICIA

Good Practices of Restorative Juvenile Justice

Project CONSENSUS Galicia Nombre Del Capitulo

_Penal Offences (Crimes And Misdemeanours)_

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

For the Provincial Prosecutor of A CoruĂąa the principle effect of the mediation consists in this: Once it has been achieved, the Ministry for Prosecution can desist in the continuation of the process and, given the instruction is concluded, address this to the Court for Minors, asking for the closing and the filing of the proceedings. It is the Specialized Team to which falls the role of carrying out of mediations in the form set out in a regulated way - informing the Ministry of Prosecution of the commitments required and their degree of accomplishment. Even the conciliation of the minor and the victim, in any moment when there is produced an agreement between them both, could leave the measure set without effect. Without prejudicing the functions of the mediation attributed to the Specialized Team, the public body can also put at the disposal of the Ministry of Prosecutions and the Judges of minors, if that is the case, the programmes necessary for the carrying out of those mediation functions. It would be more convenient, from the point of view of practicality, to reinforce the Specialized Teams attached to the Juvenile Court and Prosecutors with the use of specialized personnel that the public body carries out mediation functions. This would result in what is every way desirable - as is becoming clear in the reports of the prosecutions â&#x20AC;&#x201C; and, within a progressive utilization of the principles of opportunity and derivation, the overcoming of the some obstacles of means for the materialization of extrajudicial solutions, especially in what is referred to as the difficulties that the Teams have at the hour of finding resources so that the minors can carry out activities for the benefit of the community in the context of the extrajudicial reparations.

In Pontevedra are counted only a total of 372 minors under supervision, a figure which is strange if we compare it with the 3.263 of A CoruĂąa, the other Galician province more populated. It is very probable that this number of only 372 minors under supervision in the Province of Pontevedra is due to the operating principle is carried out in a different way20. According to the Report 2008 of the Chief Prosecuting officer of Galicia, in the year 2007 there appears only a total of 188 non-process solutions in the whole of Galicia, while in the year 2008 the figure is 292, which represents an important increase of 106, equivalent to an accentuated +56.08%.Therefore, it can be affirmed that the total of issues resolved in the reform (849), 34, 39% were solved by extra-judicial means.

The Prosecution for the Province of Lugo, for its part, points out, as possible causes of the reduced number of mediations which are carried out in this province, the following: The minor does not recognize his acts; the family acts as a check and puts a break on the mediations; the victim does not accept the apologies and does not want to go to the office of the team; there is no agreement about civil responsibility nor a clear basis to establish it; frequently there is a tension between both parties, sometimes provoked by the family; the work of the team consists in overcoming these obstacles by using reasoning and educational and psychological methods, but if these means comes to pieces, it cannot make progress for whatever consequent excess could lead to compulsion. The Provincial Prosecutor of Ourense distinguishes the significant statistical increase in respect to the quantity of conciliations there have been in 2006 and previous years, so there is produced an increase of 190%, an increase which is maintained in the last years.

Project CONSENSUS Galicia Nombre Del Capitulo

So what is in every point necessary is to involve more and more the diverse Town Councils through the corresponding agreements for collaboration with the autonomous body21.

Good Practices Concerning Restorative Juvenile Justice in the Spanish State

From the Provincial Prosecutor of Pontevedra there is noted the necessity for the creation of a specialized team specifically dedicated to the carrying out of conciliations and extra-judicial reparations.

3) Social: the issues which cause a social alarm such as domestic maltreatment, school bullies, urban vandalism, consequences of adolescent, alcohol-orientated street parties - «el botellón», etc. are given a prompt response. The delays in the justice for minors are avoided, and, because there are a lesser number of judicial undertaking (court cases, follow-ups, reviews) a faster response can be given to crimes of greater weight.

There is noted a manifest interest, from all Provincial prosecutors, in increasing the number of conciliations and reparations and empowering mediation in general as a route to reach extra-judicial solutions. There is an express call to the department of Public and Judicial Administration of Galicia to increase means and the Mediation Teams.22 In the report of the General State Prosecutor of 2009, the Section for Minors of the State Prosecutor of Lugo describes the wide use of the principle of opportunity in the area of misdemeanours, except in those cases of minors with a previous record and when the civil responsibility reaches a certain relevance, with the end in this ultimate proposition to not neglect the legitimate interests of the victim. Now to consider the Section for Minors of the State Prosecutor of Pontevedra: This has been complicated by the regulation of how the extra-judicial solutions are to be carried out. For the reason that it demands the Specialized Team to arrange a meeting with the lawyer of the defendant if the minor can accept the extra-judicial solution, without specifying what would happen if the lawyer doesn’t appear. In most of the cases the lawyer doesn’t appear, but the problem is considered saved by the giving of consent in the taking of the declaration by the minor himself or herself.23 In the report of the Chief State Prosecutor of 2008, the Prosecution of A Coruña enumerates the benefits that the extra-judicial solutions report: 1) Educational: it conciliates the accuser and the accused, it achieves the moral gratification of the victim, it allows the reparation of the damage caused, it makes possible an educational operation, presenting the minor to the injured party, making possible for the offender to put himself or herself in the other’s position and making him/her assume the responsibility of the acts carried out. It also speeds up the legal transactions and allows prompt transitions between the act and the solution, making the victim happy and allowing the minor to associate his/her inappropriate behaviour with a consequence and creating the minor’s reflection which is assimilated and prevents re-offences. The number of re-offenders submitting to the process of conciliation and reparation it is not higher than 5 per cent; 2) Economical: avoiding the loss of work days for witnesses and saving the payment for the attendance for each court session; reduces the expenses derived from the attendance of a lawyer (the majority are state employed lawyers hired by the state), as much in the penal court as in the civil, and saves working time for the civil servants participating in the minors’ process.

Referring to the research about the application of the mediation of minor in Galicia, the specialized team from Ourense developed a task related to the mediation in this province, during the following two years after the Law 5/2000 started to be applied, the results were showed in the First Congress of Legal Psychology, which took place in Santiago de Compostela. A total population of 43 minors with an open file during the years 2001 and 2002 in the Prosecution of minors. After the information, which figured in the process was gathered, and they carried out a poll, they proceeded to their comparisons and statistical processing, obtaining among others the following results: s The extra-judicial measures represented 19% in respect to the rest of the

measures. Male: 95% With the participation of 2 or 3 of the minors in the conciliation, 60%. Parentally attended educational style 63 %, (following TAMAI). All of them were minors without a pronounced pathology of any kind. 42% were adult victims of which 60% were known by the aggressor. 85% accepted participation in the mediation process. From the imposed measures, 91% were fulfilled adequately. In the 7% of the cases the offences were repeated, in other words, a new expedient was opened, although not necessarily for similar acts to those which invited the mediation. s Evaluation through the questionnaire in the 79% of the families: the general evaluation from the families was positive in 79% of the cases. s All the cases proposed with conciliation measures were accepted by the chief Prosecution. s s s s s s s s

The evaluation of the results leads us to point out the following n Related to the number of conciliations, this constitutes the very best

of results, even despite the incidence of the transition expedients after the coming into effect of the new Law (there must be taken into account the margin of the age increased from 16 (past age for legal-adulthood in terms of penal responsibility) up to 18 years of age. n The percentage of success in the conciliations was very high. n The satisfaction within families presented very high indexes.

Project CONSENSUS Galicia Nombre Del Capitulo

Galicia Project CONSENSUS Nombre Del Capitulo

Good Practices of Restorative Juvenile Justice

Project CONSENSUS Galicia Nombre Del Capitulo

Good Practices of Restorative Juvenile Justice

Panels of Experts in Galicia

From the analysis of the annual reports of following years, it is found that the number of conciliations has been progressively growing. The documents of the professional actions 2005 reflects that there were carried out 28 conciliations and if we take into account that the minors with open proceedings in the Juvenile Court of Orense 32 were sanctioned. This means that the conciliations represent practically 50% of the minors who in an expressed form or by court action are declared responsible of the crimes or the misdemeanours; or stated in another way - for each two minors responsible for a criminal act, there was carried out a conciliation with one of them.

PANELS OF EXPERTS IN GALICIA

At present in the Province of Orense, with information from 2008, the extra-judicial measures suppose between 60% and 50% of those declared responsible of the acts, in this way, for example, there were implicated 40 minors in 2008, which supposes practically 50%. In this sense, we point out that in the last five years the brute increase of extra-judicial measures represents almost 100%; so there is a transition to 27 conciliations in 2004 to 40 in 2008, and a relative increase, if we take into account that there is a greater quantity of proceedings, of 40% in fact.24 l

In the framework of the CONSENSUS Project there were conducted meetings with specialists in minors from the Autonomous Community of Galicia. They were Judges, Prosecutors, and technical personnel from the specialized teams from the Juvenile Court and of the Public Body for the execution of judicial measures. After presenting them the research about good practices of Juvenile Restorative Law in different Spanish Communities, they were asked information about the present situation of this practice in Galicia, as well as their opinion about the possibility of transferring to our territory these good practices developed in other places of Spain. As well there were gathered their proposals to improve the practical application of the restorative justice in Galicia in the future.

PANEL 1.- PROSECUTORS AND JUDGES Interviews and meetings were conducted with Prosecutors and Judges of Minors from the four provinces from the Autonomous Community of Galicia

Opinions and Proposals:

It is not considered necessary to have a General Law of mediation which includes all areas. To generalize complicates the situation more. There shouldn’t be a problem if there exists a general department for mediation, always providing that it is divided into specialized areas. There have to be experts on minors, to make the teams more specialized. The Specialized Teams try to carry out the mediation and when there is decided a measure of reparation, there is procured a task which relates to the offence committed. And to develop these diverse tasks it is necessary to count on a network of services. It would be good if the town councils intervened because of proximity to the citizens, to facilitate the compliance with the measures in the area where the minors live. It is fundamental that it is known that it is an activity according to the law and its immediate character is also very important, because if there are delays it is converted into bureaucracy and then it doesn’t fulfil the function set out. It is probable that there should be a reinforcement of the Social Services of the town councils as a preliminary step to the signing of these agreements. There exists an Agreement on Road Safety with the Autonomous government of Vigo. In A Coruña this has also been suggested and there has been presented the document necessary to sign this agreement. It seems interesting that in Aragon the carrying out

Project Panel 1: CONSENSUS Prosecutors and Judges Nombre Del Capitulo

The situation of Juvenile Justice in Cádiz. October 2009. Association for Human Rights. Andalucía. Cádiz. Criminal mediation with minors. Association for Human Rights. Andalucía. Córdoba. 7 Report of the General State Prosecution. 2008.. 8 Report of the General State Prosecution. 2008. 9 “INTERVENTION IN AN OPEN ENVIRONMENT AND EXTRAJUDICIAL SOLUTIONS IN THE AREA OF MINORS.” Catalina Carrasco Fernández Alicia Morón Calvo. Association Open Alternative. 10 Conclusions compiled by Carmen Orland Escámez 11 Manuel Benedí Caballero (2009): Social-educational views on the subject of minors who are offenders. Lectures ZGZ. 12 Justice Department Report 2007. Generalitat de Catalunya 13 Mediation in the juvenile justice model of Cataluña. Jordi Samsó i Huerta. Directorate General of criminal enforcement to the community and Juvenile Justice. Generalitat de Catalunya. 14 Mediation in the juvenile justice model of Cataluña. Jordi Samsó i Huerta. Directorate General of criminal enforcement to the community and Juvenile Justice. Generalitat de Catalunya. 15 Santiago Madrid Liras (2005). Proposal presented in International Lectures on Minors and Youths with Penal Responsibility: Adolescents in social conflict. Madrid. 16 Ana Rodríguez Gil. Proposal presented in the International Lectures on Minors and Youths with Penal Responsibility: Adolescents in social conflict. Madrid. 17 Ana Rodríguez Gil. Proposal presented in the International Lectures on Minors and Youths with Penal Responsibility: Adolescents in social conflict. Madrid. 18 III Juvenile Justice Plan in the Autonomous Community of Euskadi 2008-20 12. Central Service of Publications of the Basque Government. Vitoria-Gasteiz, 2008. 19 III Juvenile Justice Plan in the Autonomous Community of Euskadi 2008-20 12. Central Service of Publications of the Basque Government. Vitoria-Gasteiz, 2008 20 Report 2008 of the Chief Prosecuting officer of Galicia. 21 Report 2008 of the Chief Prosecuting officer of Galicia. 22 Report 2008 of the Chief Prosecuting officer of Galicia. 23 Report of the Chief State Prosecutor of 2008. 24 MEDIATION IN THE JUVENILE JUSTICE SYSTEM. Juan Luis Basanta Dopico. Pychologist of the Chief Prosecution of Minors and Court of Minors, Ourense 5

It is fundamental to develop the mediation, not just for the advantages for the offenders and victims, but also for the possibility to reach faster solutions, without having to judge all the cases.

Panels of Experts in Galicia

the reparations is by Specialized Team of the Semi-custodial system and that there is another team which is occupied with those younger than 14 who commit offences.

the creation of a specific team for mediation. It is a question of political will, to take the decision to bring more resources to this area.

In Pontevedra there has been proposed, several years ago, an incorporation of two persons of this type of team, but in the end it was not done. In A Coruña there has only been sent to the Welfare Division the cases which are more serious, but in the Centre for Intervention and Execution of Judicial Measures in the Semi-custodial System (Intervención e Execución de Medidas Xudiciais en Medio Aberto (CIEMMA)), work has reached a point of saturation. Before the Red Cross collaborated in the Judicial Reparations, but now they are applying for an agreement.

However, some of the specialized teams are not in favour of creating a team that specialises in mediation, because they considered that they are the ones who have to decide if there is mediation or not. They ask for the creation of a new team or to strengthen the ones that already exists, but with the same functions that they already have.

In some places, like Badajoz, where the functions have not been transferred, there are direct agreements between the Prosecution and the town councils. The prosecutions believe that it is not necessary to sign so many agreements. Professionals should intervene from the administration. The agreements with allied bodies should be signed by the Welfare Department. In preliminary proceedings, treating of minors who commit first offences, there can be filed a case without the intervention of the specialized team. It’s an internal proceeding of the Prosecution. In Pontevedra, the case is filed when a first theft is at issue, if the minor asks for forgiveness through a letter and a payment to the company, declaring that if he or she re-offends, then next time he will go to the court. In Lugo, the case is filed when they are treating of minor thefts in Supermarkets and businesses and the parents take on the fine and procure the repentance of the minor. In this province there are not many cases of mediation. There is no favourable culture for this practice. It is difficult to get the minors to recognize their acts and for the victims to manifest interest in participating in the process of the mediation. Many victims do not want to see the offender. For this reason, in almost all provinces conciliations are carried out by letter In Ourense, there are a high percentage of mediations. They are done by the specialized team with the support of a collaborating entity to execute the extra-judicial measures. Some of the experts consulted consider that the mediation should be carried out by a specialized team which should be concerned only with mediation. They are yet to decide whether to create a new team with these functions or if they are to entrust them to the personnel of the administration. They are lacking two people in this specialized team. Only one would not be sufficient. It is interesting to see what they have done in other autonomous communities and to study which would be a more appropriate solution. More than three years ago in the reports of the prosecution the need for solutions and the theme of mediation was being talked of. All would be resolved with

In respect to the argument of the technical teams, to who belongs the decision about whether a minor is susceptible to mediation or not, it is pointed out that the final decision is of the prosecution, in agreement with what is established in the law. The specialized teams depend for their function on the prosecution. In any case, it is necessary that there is good collaboration between the specialized teams and the prosecution. In general, there is no compliance with the law that sets out that reports must be presented within ten days. Sometimes there is a delay of three or four months. If it is a misdemeanour the prosecution gives notice to the team of the obligatory three months deadline. The reports and the measures which are proposed in the distinct provinces are very different, although the characteristics of the minors are similar. There is no agreement on the criterion. It would be necessary to a certain extent to create unity. Referring to the participation of the lawyers in the mediations, they, sometimes ask to be present in the interviews with the minor because it is their obligation to accompany them, but the Specialized Team doesn’t allow them because they do not consider that they have to intervene, due to it being an extra-judicial process. The lawyer could ask for the mediation, but the lawyers are not specialized in minors and they do not have initiative. In Pontevedra, sometimes, in certain thefts, the parents pay, they ask for forgiveness and after the case is sent to the specialized team for them to evaluate if the educational activity has been complied with. The Lawyer is not called if there is possibility of conciliation

PANEL 2. SPECIALIZED PROFESSIONALS FOR MINORS We meet with workers from Specialized Teams from the Court of Minors in Pontevedra, Ourense and Lugo. Two professionals from the Ourense Team participated in the second meeting in which professionals of the Public Entity of judicial measures execution participated too (Welfare Deapartment from the Autonomous Government of Galicia). The staff from the Specialized Team of A Coruña did not go to the meetings. Opinions and Proposals:

It is difficult to compare the figures for re-offence. There are different criteria for data gathering. To evaluate the success or failure of a determinate model, these criteria should be known in detail. The figures also vary depending on the period

Project Panel 2:CONSENSUS Specialized Professionals for Minors Nombre Del Capitulo

Project Panel 1: CONSENSUS Prosecutors and Judges Nombre Del Capitulo

Good Practices of Restorative Juvenile Justice

Panels of Experts in Galicia

which is considered. Although the International Criterion is two years, sometimes the figures are measured in longer periods. It should be necessary to unify the criteria of data gathering. The information afterwards allows us to evaluate if the work is reliable or if it’s necessary to introduce improvements. To measure the rate of re-offence there has to be taken into account two or sometimes three sentences. The second sentence should take place at a time two or three years after the first. If this is not done in such a way then we are confronted by a different type of case study of minors in situations of conflict. In Ourense, for example, re-offence is 13.5% (with a second crime in the two following years); meanwhile the re-offence in the case of conciliation is 9.5%.

encounters etc.). there is needed a more informal space, and access which permits the victim to not meet the offender if it is not desired and so that the offender does not have to access the same space as other offenders who are adults who go to the court. In the conciliations and reparations the team informs the prosecution about the commitments obtained and the degree of fulfilment of these. In 90% of those carried out in Pontevedra the party suffering damages is a company selling clothes. However, they are not taken on board in the same way as other cases. It would be useful to unify the criteria of action.

The Welfare Department entrusted to the University of Santiago a study about reoffences in Galicia. The final results have not been received yet, but following a previous estimation, re-offence in Galicia is around 20%.This study takes into consideration only the data for the carrying out of measures.

In Ourense they have the opinion that mediation frees the Courts of the burden but at the same time, sometimes overburdens the Specialized Team. And apart from being more economical, the educational measures have more positive results for everyone.

In Galicia the mediation appears in the first place with the minor offender. The perspective of the victim is incorporated later. In different provinces there are different methods. In Lugo there is little mediation. Each member of the team carries out an interview with the offender, each one according to their own professional field. And after, it is the Team altogether which carries out the process of mediation. They try to make the Minor take responsibility for his acts, but they do not explain that if he does this and the mediation is successful, the trial can be avoided.

They believe that it is necessary to have more materials and human resources. They base this on the practice of each Specialized Team being fundamentally dependent on the resources that they are issued with. The workload is less than in A Coruña and Pontevedra and allows them to dedicate one day to every case (with the interviews of the minor offender accompanied by his family and the victim). Relating to the mediation, they work with an association (TRAMA), that help them to carry out the educational measures accorded to each young offender. This association collaborates with them through agreement with the Xunta de Galicia, and they are in charge of the execution of the measures. The Specialized Team is in charge of the conciliation and mediation between the offender and the victim, but the judicial measures (under the supervision of the judge) just as much as those derived from the mediation (under the supervision of the Specialized Team) are carried out by the Association. In the mediation the lawyers of the both parties are not present. An information campaign was carried out about mediation in the Law Academy and now it is the lawyers themselves who sometimes propose the mediation.

Sometimes the misdemeanours are filed after talking with the minor and the parents pay the damages. For some experts this is simply a transformation of a moral problem for the minor into an economic one.

It is not common to perform the mediation after the sentence. Many of the minors who are sent to detention Centres commit serious offences and usually do not recognize their acts.

In Pontevedra they have a great workload and scarce materials and human resources. They demand the creation of more teams or the collaboration with other entities. This team in particular has its own organization in respect to the tasks which are carried out by the distinct professionals which compose it. They are concerned with the changes which can be proposed with the end to improve the processes of mediation, and that they could interfere negatively with the functioning of the Team in other areas. The administration ought to hold meetings for agreements with other entities, but not for the taking charge of the processes of mediation in their totality, which is already the task of the Specialized Team, rather that they collaborate with them in the development of the socio-educational activities. There are needed more materials and human resources to make the measures accorded in the process of mediation viable. There is also a lack of adequate space for carrying out the mediations. (Interviews, victim-offender

In Ourense, there has lately been an increase in the thefts committed by adolescents in the Shopping Centre. There is a marked increase in young females responsible for offences. In almost all cases the act is committed in groups and they are from comfortably-off families. On these minors there are often imposed educational measures where there is collaboration with the Shopping Centre in tasks such as: maintenance of gardens, cleaning etc. and with these measures there is an attempt to affect an example - to prevent this type of offence from being committed by other adolescents, as well as to prevent them re-offending themselves. In these cases, in the beginning the minors have to present themselves in the Court and admit to the act, ask for forgiveness from the victim and then the person in charge of the shop will explain to them the negative effects of their acts. But at present it is so frequent that the shops have become tired of helping in the mediation process. Now they are carried out

The global structure that exists in some Autonomous Communities, like País Vasco or Cataluña, it would be difficult to apply in Galicia. In El País Vasco the Teams, formed by professionals of forensic disciplines, work with a multipurpose tool which acts in the assessment of measures just as much with measures as with mediations, adoptions or cases of Family Law. In Cataluña special mediation Teams exist.

Project Panel 2:CONSENSUS Specialized Professionals for Minors Nombre Del Capitulo

Good Practices of Restorative Juvenile Justice

Panels of Experts in Galicia

directly with the Shopping Centre. It is important that the reparation is carried out within the context which produces the conflict. They try to bring about the transformation of the criminal context and convert it into an educational one. In another type of offence such as driving without a license there are carried out accident prevention campaigns with the collaboration of the metropolitan police, and they have to do a traffic education course.

It would be viable that half way through sentences of liberty under surveillance there could be an attempt at a mediation process. If the measure of liberty under surveillance tries to prevent re-offences, the minor has to have put himself in the victim’s place. The Teams for semi-custodial sentences would have to be prepared to carry out conciliations. It would be interesting to develop a programme of training for the personnel to become specialized.

In the case of fights among adolescents, if the accusation is reciprocal it is easier, but sometimes only one of them makes the accusation and the other party doesn’t want to participate in the mediation because they are scared of becoming implicated and being made responsible for the act. A case may also arise in which there is a provocative victim. Asking for forgiveness from this type of victim does not prove beneficial for the young offender.

In terms of the legal possibility that the public body develops mediation programmes and introduces help staff to carry them out, the specialized members of the Teams understand that the decision belongs to them whether they mediate or not, acting according to the principles of independence, professionalism and impartiality which they have undertaken to uphold. In fact, in some provinces there are hardly any mediations and nobody obliges them to carry out any such. On the other hand, they must avoid duplicating interventions and victimizing the minor with a new exploratory process.

Relating to the civil responsibility, in some cases it is observed that victims claim excessive financial compensation. To comply with the commitments accorded it is essential to count on the collaboration of some entity. Some provinces have problems with these collaboration entities. To avoid it there needs to be an agreement which the teams could plan. In Ourense there is an entity, TRAMA, collaborator in the Welfare Department, which is charged with the execution of measures within the process of mediation. They give courses to teach minors how to ask for forgiveness. After undergoing this course they apologise in front of the victim for the damage caused. The victim sometimes doesn´t want to participate. In this case extra-judicial reparations are made without conciliation with the victim. If in Ourense they stop carrying out mediations there will be more detention sentences. In the report of the Execution of Measures there was an important decrease in Ourense between the years 2003 and 2008, due to the mediations. The conciliation in the phase of the execution is not produced in practice. The execution of the measures is carried out by collaborating entities. There are those who consider that for these entities conciliation is not of interest because it would imply a reduction of their incomes. For others, it is not an economic problem but rather a human one. If the minor is complying with a measure and is well, he or she is not interested in changing. All changes imply an effort. There is no relation with the victims after. The Centres don’t have any interest either in modifying the measure, even though it is true that they work for them to recognize the act. Before, the minors often lived in precarious conditions and so preferred to stay in the Centres. But society has changed and it would be necessary make them see the benefits of the process of mediation. On the other hand, as well as the minors who are in the Centres there are also many in open regimes. To those minors it is not very burdensome to comply with liberty under surveillance. It can also result in a more suitable outcome than Community Service.

At the moment of carrying out a mediation process, there is also the need to prepare the victim for the encounter, furthermore, to take into account that there are distinct types of victims. In Galicia there are no entities specialized in victim support. On setting out the possible collaboration between personnel from the public body in programmes of mediation, the specialized team members of the court point out that the mediation is a service that is to do with the rights of the citizens and due to this it is a public service, brought about by staff of the Administration. They understand that they shouldn’t be private entities which manage the mediations and that the carrying out of these has to be limited by the collaboration with the public Team of Specialists. The process of determining the necessity for mediation and encounters between the victim and the offender correspond exclusively to the Specialized Team. The intervention of the public execution body should limit itself to extra-judicial reparations. In fact, in the execution of these extra-judicial measures, in Ourense, there already participate collaborating entities. The Autonomous Government should make trained staff available for work in other provinces. There has been discussed the possibility of amplifying the Specialized Teams of the Courts, creating Teams specialized in mediation or reinforcing those in existence with a new professional form which performs the functions of mediator. In A Coruña and Pontevedra they are asking for an extra Team, but by introducing the form of the Mediator as a specialist could sow problems. The Specialized personnel of Pontevedra would accept the creation of a new Specialized Team in this province but not limited to the function of mediation but rather with the same profile and the same functions that exist, with their own organization, where both working in coordination (coordination previously planned at the putting into motion of the new team). In Ourense they aren’t in favour either, of incorporating into the Team a person specialized in Mediation. They think that staff joined the team to reinforce it, must respond to the same profile as other technicians (psychologist, social worker and educator) and is the team itself that has to organize their work. l

Project Panel 2:CONSENSUS Specialized Professionals for Minors Nombre Del Capitulo

Good Practices of Restorative Juvenile Justice

Transnational Forum: Good Practices of Restorative Juvenile Justice

Good Practices of Restorative Juvenile Justice

SCHEDULE Monday, the 2nd of November 09:30–10:00 10:00–10:15 10:15–10:45

10:45–11:00

Reception of documents Inauguration

11:00–11:15

11:15–11:45 11:45–12:00 12:00–12:30

LECTURE: “Juvenile Restorative Justice in Spain”

Ilmo. Sr. D. Fernando Suanzes Pérez. Prosecutor of the Autonomous Community of Galicia and Associate Professor of Criminal Law at the Law Faculty of A Coruña. Specialized in Juvenile Justice.

Presentation of the EUROPEAN CRIME PREVENTION NETWORK ( EUCPN)

D. José Ignacio Prieto Lois. Director of Technical Teams of the Juvenile Justice Courts. Xunta de Galicia. Director of the Consensus Project Dª. María González Vázquez. Coordinator of the Consensus Project. Lawyer.

Coffee break “Juvenile Restorative Justice in Finland. Good Practices”

12:45–13:00

Restorative Juvenile Justice in Portugal. Good Practices

DªSusana Castela. Probation Officer. Directorate General of Social Re-integration. Ministry of Justice. Lisbon. Portugal.

Debates Lunch (only invited guests)

ROUND TABLE: Practical application of Restorative Juvenile Justice

IImo. Sr. D. Manuel Conde Núñez. Magistrado Juez. Judge Magistrate. President of the section 5ª of the Provincial Hearing of A Coruña Ilmo. Sr. Florentino Delgado Ayuso. Chief Prosecutor Ourense Ilmo. Sr. D. José Julio Fernández Rodríguez. Vice-Ombudsman of Minor and New Technologies for Galicia 11:00–11:30 11:30–11:45

Coffee break Restorative Juvenile Justice in the United Kingdom. Good Practices

Ms. Jenny Johnstone. Lecturer in Law. Newcastle University. Honorary Research Associate Scottish Centre for Crime and Justice Research (SCCJR) Glasgow. United Kingdom. 11:45–12:00

Programme of Mediation and Reparation of the Management for Social Re-integration (DGRS)

Dª. Inés Coelho. Probation Officer. DGRS. Ministry of Justice. Lisbon. Portugal. 12:00-12:15 12:15–12:45

Restorative Juvenile Justice in the United Kingdom. Good Practices

Prof. Michele Burman. University of Glasgow, Scottish Centre for Crime and Justice Research (SCCJR)). Glasgow. United Kingdom. 13:00–13:30 14:00–15:30

10:00–11:00

D. Kauko Aromaa. Director European Institute for crime prevention and control HEUNI). Helsinki. Finland

Good Practices of Restorative Justice in Italy: probation and victim-offender mediation

Presentation of the Workshops by Ilmo. Sr. D. Carlos Mariscal de Gante Prosecution Delegate of the Section for Minors of the Provincial Prosecution of A Coruña. WORKSHOP I:”Special features of the Restorative Justice in the penal juvenile context” WORKSHOP II: “Challenges for the future of Restorative Juvenile Justice” Presentation of the Workshops by D. Juan Basanta Dopico (Psychologist of the Technical Team of Ourense. Juvenile Court of Ourense) WORKSHOP III: “The character of the mediator” WORKSHOP lV: “Proposals for improvements for the practice of mediation in Europe”

Tuesday, 3 November

Presentation of the CONSENSUS PROJECT

Dr. Anna Mestitz. Research Director of Research Institute on Judicial Systems National Research Council (IRSIG-CNR)). Bologna. Italy. Dr. Marilena Colamussi. PrFaculty of Law. University of Bari. Italy. 12:30–12:45

16:30–17:30

Excmo. Sr. Carlos Varela García. Higher Prosecutor of Galicia.

D. Juan Carlos Garrido Iglesias. Inspector of the National Police- International Coordination Unit and representative of the EUCPN in Spain

15:30– 16:30

12:45–13:30 13:30

Restorative Juvenile Justice in Finland. Good Practices

Ms. Erika Uotila. Planning Officer. Department of Criminal Policy. Ministry of Justice. Helsinki. Finland.

Restorative Juvenile Justice in Bulgaria. Good Practices

Dª. Dobrinka Chankova. President Institute of Conflict Resolution (ICR). Sofia, Bulgaria. Mr. George Bakalov. Vice Chair Institute of Conflict Resolution (ICR). Sofia, Bulgaria.

Conclusions of the workshops and debate Closure

Project CONSENSUS Schedule Nombre Del Capitulo

TRANSNATIONAL FORUM: GOOD PRACTICES OF RESTORATIVE JUVENILE JUSTICE

Transnational Forum: Good Practices of Restorative Juvenile Justice

Good Practices of Restorative Juvenile Justice

During the celebration of the international Forum for the Project CONSENSUS, the professionals participating opened a debate about the following questions:

I I

The public character of the execution of the judicial measures

The public character of the execution of the judicial measures is absolutely necessary. There cannot be conceived a specialized team without this character. The action of private persons is only admissible in some measure if they act under the control of some organisation be it that of the specialized team or the administration, seeing as the tasks of carrying out the mediations are the real essential ones. The possibility that the public body brings about conciliations or mediations with minors of 14 years of age About this point there have been manifested opinions from contrary angles: s In Galicia minors of less than 14 are being worked with, although it is certain that the victim is not taken into account. Yes, there is intervention with minors and with their parents and risks are predicted. s The minimum age of responsibility should not be 14 but 12. When we talk about those younger than 14 there is confusion between protection and reform, as occurred with the old Law of Guardianship Tribunals for Minors. If the minor younger than 14 years of age is not responsible for anything, there can be no recognition of damage nor does it make much sense to ask for forgiveness. Only the forgiveness asked for from the position of responsibility can make sense. Protection cannot participate in the principles of reform. If one talks of restorative justice, the essence is justice, just as much as therefore it should be in the hands of the judges, prosecutors etc. It is a response from the province of the justice system. If we are not still in the previous system (the psychologists make measure a pattern for each minor). The administration of justice can imprison a minor of 14 who commits a criminal act as a measure of protection. s If the age is reduced then social work is being made into a criminaljustice institution. Yes, mediation can be carried out with minors of 14 but it is not being done. Public bodies could intervene but with more social measures. s To those younger than 14 we cannot apply measures derived from the criminal act. The mediation in this case would be an act of protection. s The modification of the law is much talked about but what has to be seen are the possibilities of intervention which exist with the presiding law. s An age has to be fixed objectively, but one cannot see the justice system only from the point of view of sanctions. s The justice system for minors is very effective. It isn’t only for sanctioning or only for educating. Lowering the penal age only leaves us

as in the role of only sanctioning. If we can have more interventions with minors below the age of 14 is a political will. There could be guides and protocols for action. s There are good interventions in the protection of minors, although it

would be good to incorporate the victims. s Often Protection hasn’t got any mechanisms to act with minors who

commit criminal actions. s In the welfare council there are three educators dedicated to minors

who are offenders, although they do not do any mediation. s In welfare there is a Familiar Orientation group that acts as a mediator

with the families. s It would be better not to take minors to court, doing the mediation

outside the judicial system in the nearest environment (social services or local police). The intervention has to be done at a time near to the action. The minors have a different concept of time. s The Law System is a guarantee. It doesn’t need to interfere. Agreeing that the response in the Law of minors has to be quick in order not to lose efficiency in an educative sense. s It is fundamental that the media don’t show a distorted image of the minors.

WORKSHOPS In the international forum there were celebrated four workshops where experts in the Justice of Minors participated, that from different professional perspectives, analysed questions related to the practice of the restorative justice of minors and made innovative proposals of intervention in the prevention context of juvenile delinquency, that can contribute to the creation of common ways of acting in the different countries of the Union.. WORKSHOP 1:”Special features of the Restorative Justice in the penal juvenile context” WORKSHOP ll: “Challenges for the Future of Restorative Juvenile Justice” WORKSHOP III: “The character of the mediator” WORKSHOP lV: “Proposals for improvements for the practice of mediation in Europe” Here are gathered some of the issues opened up in the Expert Workshops and the proposals for improvements made:

Project CONSENSUS Workshops Nombre Del Capitulo

Project CONSENSUS Plenary Debate Nombre Del Capitulo

PLENARY DEBATE

Transnational Forum: Good Practices of Restorative Juvenile Justice

1.The real reason for the interest which exists presently in the European States for developing the practice of Restorative Juvenile Justice

Added to this is the problem of the existence of distinct perceptions (juridical agents, victims and offenders).

The movement favourable towards the development of mediation which exists presently in the European Union and is reflected in the Decisions of the Department, recommendations and guides.

The Restorative System is a complement to traditional legal system. It is an alternative that can help solve the judicial workload, an alternative that favours everyone: offender, victim and community. At the same time as reducing the workload of the courts and reducing the financial costs, there is an avoidance of criminalizing the minor offender. The mediation is carried out with an educational and preventative objective. There is also an avoidance of re-offence. The minor learns more in mediation than in a court as he has to voluntarily take on board the responsibilities for the act which he has committed and its consequences. It is even the case that the mediation with more serious crimes could prevent more re-offence than a trial. Furthermore, by being faster its effectiveness is much greater.

2.. Difficulties which appear more frequently in the practical application: In practice there is sometimes produced a certain reticence in those operating in the court cases because of the fear of losing control over the resolution of the conflict.

The judicial persons empowered to apply the mediation complain of a lack of human resources and materials. There is a heavy workload and a lot of pressure to comply with schedules. There is a lack of communication between the different legal practitioners, collaborating entities etc. Often there are not specific programmes for the carrying out of the mediations, for which each responsible person intervenes as they consider most convenient in each case. They do not share protocols. There are not shared objectives. There is a lack of training and specialization.

Another difficulty would be the lack of a culture of mediation in the society, which often pursues the punishment of the offender more than his reintegration to prevent re-offence.

3. The balance of the system: Victim â&#x20AC;&#x201C; Offenderâ&#x20AC;&#x201C; Community Some participants understand that the system is balanced, seeing as it proportions benefits to the offender, victim and the community. So that these function adequately, it is very important the support of the Government.

In certain countries it could be considered that the system is not totally balanced from the moment that the interests of the minor predominate and it is applied by professionals specialized in the attention to minor offenders. The interests of the victim seem to be in second place. And, then to cap it all there appears the community in those cases where the measure to be carried out is a measure in the benefit of the community. Some experts highlight that if there is no balance then it cannot be considered a good application of restorative justice. In any case, the theoretical balance is very difficult to sustain in practice. In the case of small populations, the community has more influence than in large cities

4. Effectiveness of the extrajudicial solutions in reducing re-offence

Following on from the fact that the re-offence is very low after a mediation process, there are specialists who believe that it is due more to the minorâ&#x20AC;&#x2122;s own characteristics and the degree of social conflict that he or she suffers than to the mediation in itself. These minors sometimes do not re-offend even without having participated in the mediation. Some experts have the opinion that in the extra-judicial solutions are instruments which permit the offender to put himself in the place of the victim and for the victim to put himself in the point of view of the offender. The minor accepts that he has committed a crime and in some cases has also carried out a training course. The re-offence diminishes thanks to the reflection that the minor has carried out about the acts which he has committed. There also has to be follow-up activity. In many cases the re-offence is related to the family environment in which the minor lives, as a consequence of which, some professionals believe that in some cases the parents should take on the responsibility further than just the civil responsibility which corresponds to them, seeing as sometimes they have played a part in the cause of the situation.

Project CONSENSUS Workshops Nombre Del Capitulo

Good Practices of Restorative Juvenile Justice

Transnational Forum: Good Practices of Restorative Juvenile Justice

Good Practices of Restorative Juvenile Justice

The experts in Spain were in agreement that as a minimum the mediators are to be linked to the administration, and depending on the functioning of each Autonomous community they are to depend on the justice department or another department.

There should be allotted a certain autonomy but with evaluations and always with protection of impartiality. On the other hand, experts from other European countries don’t believe that this dependency would be necessary, but rather the single control on the part of the Justice Administration, to protect impartiality.

6. The sufficient amount of resources which the mediator has available to ensure the fulfilment of the reparation and the educational tasks:: There are not sufficient resources available. In some places there are enough for the cases which they have but in others there are much more needed.

For some of the participants collaboration is not a bad idea with the bodies to which are referred the application of the reparatory measures and it would be the responsibility of the mediator to verify the compliance and carry out meetings for control and follow-up meetings, as much during the application as after it.

7.Neutrality of the mediator when the process is imbalanced and towards one of the parties: The mediator must be a specialized and neutral professional. Neutrality is fundamental, but always there is to be the safeguarding of the rights of both parties, adequately managing their expectations.

Some expertises think that the mediator has to be neutral referring to not favouring any party more, but above all that he must be impartial, because neutrality means not intervening; but then the figure of the mediator wouldn’t make sense any longer. If the process is imbalanced, the mediator has to try to attempt some balance between both parties, and in that way he has to intervene because that is his task. It is said that the offender and the victim are never on the same level of equality. The minor offender will never be at the same level as the victim. The minor has to recognize the act. The minor offender can be helped, not just by not committing a crime, but rather to improve himself, this would be the perfect situation.

8. Voluntary character of the victim’s and offender’s participation:

Yes, it is voluntary. It can be influenced by some or other motives, because it is possible that it is accepted because of considering a way to avoid the trial, but independently of the motives that move them to participate, they accept to do it in a voluntary way. He can be convinced by explaining its advantages, but it is never imposed. Furthermore there is another factor that explains this willingness, which is the fact that the victim wouldn’t need to participate and nevertheless is given a high percentage of participation by the same party.

PROPOSALS FOR IMPROVEMENT 1. Possible common criteria for the European Union Countries

Some expertises are in favour of establishing a single legislation for Europe, fixing in the first place a common age for penal responsibility of the minor, because there are big differences between some and other countries. There would be a common basic legislation that each Country would later adapt to their context, depending on their resources. On the other hand, other experts think that the interchange of good practices is positive but that each country must have full autonomy in terms of the application. They do not believe that a common legislation must exist. It would be important to make evaluations to have a quality guarantee of the practices carried out in each country. For that, it would be necessary to establish common criteria of quality beforehand. Some think that the mediation should mean the closing of proceedings in all cases. The minor offender and the victim must always be informed correctly about what mediation can mean for them.

2.Diffusion of the advantages of the application of the reparation justice to achieve the greater involvement of society: IInvolving in a greater measure the legal practitioners themselves. Giving notice of the cases that have been successful.

Through citizenship awareness to bring knowledge of the benefits of restorative justice. Disseminating the results of satisfaction questionnaires, just as much from the offender as the victim and the Community, after the participation in the mediation processes.

Project CONSENSUS Proposals for Improvement Nombre Del Capitulo

Project CONSENSUS Workshops Nombre Del Capitulo

5. Links between the mediators and the Administration of Justice:

Transnational Forum: Good Practices of Restorative Juvenile Justice

Trying to avoid the Media spreading only the serious cases and their complicated issues, but also the actions that have been solved in a positive and efficient way throughout agreements between the two parties, giving knowledge of the advantages for all the participants in the mediation. It is necessary to avoid that the media feed the revengefulness.

There must be professionals with up-dated knowledge, what this means is to give them constant training and practice about issues of interest for their work through specialized and practical courses.

Involving the councils through the creation of a social net of resources and working in collaboration with the different services and the social agents of the Community (public administration, social services, neighbourhood and other associations, etc). Organizing meetings between the professionals of different countries for the diffusion of good practices.

3. System of evaluation to measure the efficiency and the success of extra-judicial solutions:

5. To improve the attention to the victims who participate in the process of the mediation: Proportion good assessment and complete and detailed information about the process of the mediation and the advantages which it can offer them.

Make him see that it is an important part of the mediation but not the only one.

In the first place, it would be necessary to standardize the evaluation criteria in order not to measure different things.

Explain to him the effectiveness of the mediation and that it is more effective for both to have an educational measure than a court case (which could also finish with a simple admonishment, which doesnâ&#x20AC;&#x2122;t mean it would be less hard for the offender).

There should be carried out a post-measure evaluation, in a way that the one in charge of the mediation is in charge of the follow-up and a study of re-offences that starts off from the two years following the execution the applied measure.

They should take into account the opinions of the offenders and victims in the professional debates

4. Ideal profile of the mediator and training to be demanded:

Some experts think that taking account of the fact that the measures are educational, the mediator must have a higher degree in Education, which it is to say that he must be a professional in the branch of social science and education.

Proportion more resources on the part of the administration. Involve the social services from based in the Town Councils and make sure that there is fluid communication between them and the Technical Teams in charge of applying the mediation.

From another perspective, some experts propose that the mediator count on a complementary training in legal forensic science. It is interesting if a multidisciplinary team exists.

The administration should carry out a greater control and follow-up the processes of the mediation more.

There would have to be evaluations done of satisfaction with the minor as much as much with the victim/community that has participated in the mediation, through questionnaires. It is important to evaluate the details in a qualitative a quantitative way.

There is talk about the necessity of establishing some filters for its selection: interview, testâ&#x20AC;Śto find out if the person has the required capacities: to be neutral, emotionally stable, a conciliator, if he has the social and communicative skills, objectivity, empathy, etc. It is also proposed that experience in working with minors be asked for. 76

It is considered necessary for the mediator to be a specialized professional, that he be dedicated exclusively to the functions of the mediator, in this way to arrive at the neutrality of both parties.

6. Proposals to optimize the human resources, economical and social aimed at the practice of mediation More personnel or more Technical Teams specialized in mediation. Quality training for the professionals.

Support Victim Associations. l

Project CONSENSUS Proposals for Improvement Nombre Del Capitulo

Good Practices of Restorative Juvenile Justice

Final Remarks

FINAL REMARKS

measures and punishment should constitute a last resort and be implemented only when judged to be absolutely necessary.

The European Economic and Social Committee notes that each of the EU countries could, when drawing up their policies for dealing with the various aspects of juvenile delinquency â&#x20AC;&#x201D; prevention, justice, protection and integration benefit from the experiences and best practices of the other Member States. All the more so since there is a growing similarity between the various causes and outward signs of juvenile delinquency in these countries (drug addiction, racist behaviour, sports-related violence, use of new technologies for criminal purposes, urban vandalism, etc.). Similarly, factors arising from on-going European integration, such as the removal of border controls and free movement of persons, give further backing to the idea of common rules on the juvenile justice system: young people can move freely between Community countries. Greater homogeneity and/or coordination between relevant national laws and policies could prevent or reduce some risks or new situations generated by this greater mobility (such as, for example, the possibility of a young offender living in one country being convicted for an offence committed in another EU country). Furthermore, since countries often use their juvenile justice systems as a test bench for future reforms to adult criminal law systems, the coordination and approximation of juvenile justice systems could, in turn, help to bring national criminal law systems closer. This objective is already one of the EUâ&#x20AC;&#x2122;s aims, and significant progress has already been made (Euro warrant, mutual recognition and implementation of sentences, etc.).

In the Project Consensus there have been presented to the professionals a series of good practices, which have been Developed as much in Spain as in other countries of the European Union, permitting them to know the difficulties which have been encountered in other places in the developing of this type of programme and also the positive aspects and the solutions which have been put into action. The panels of experts and the International forum have facilitated the meeting and the debate permitting the professionals to interchange knowledge and experiences. In the Forum there have been formulated proposals of improvement to contribute to the search for and establishment of common minimum criteria for dealing with juvenile delinquency in the countries of the European Union. In terms of the local situation, in Galicia, there has been noted the existence of a sensibility favourable to a greater measure of application of extra-judicial processes; also in relation to method contemplated in the Law of 5/2000 on the penal responsibility of minors. The professionals of Justice for Minors recognize, in a general way, the advantages of restorative justice but there also stands out the impossibility of expanding or improving its application with the means available at present in this autonomous community. l

In view of the specific features of juvenile delinquency, together with its inherently dynamic and changing character, it is essential that all those working with the young people involved receive the most specialist, and constantly up-dated, training possible23. The European Parliament resolution of 21 June 2007 on juvenile delinquency, the role of women, the family and society (2007/2011(INI), recommends that the Member States, in cooperation with the Commission, draw up and adopt immediately a number of minimum standards and guiding principles common to all Member States in relation to juvenile delinquency, focusing on the three basic pillars of (firstly) prevention, (secondly) judicial and extrajudicial measures and (thirdly) rehabilitation and social integration or reintegration, on the basis of the principles internationally established under the Beijing rules and the Riyadh guidelines, the United Nationsâ&#x20AC;&#x2122; Convention on the Rights of the Child and other international conventions in this field; and maintains that the objective of a common European approach should be to define models for intervention in order to deal with and manage juvenile delinquency, while recourse to custodial 78

Opinion of the European Economic and Social Committee on The prevention of juvenile delinquency. Ways of dealing with juvenile delinquency and the role of the juvenile justice system in the European Union (2006/C 110/13)

Project CONSENSUS Final Remarks Nombre Del Capitulo

Project Final Remarks CONSENSUS Nombre Del Capitulo

Good Practices of Restorative Juvenile Justice

Lectures Presented at the Transnacional Forum: Good Practices of Restorative Juvenile Justice

LECTURES PRESENTED AT THE TRANSNATIONAL FORUM: GOOD PRACTICES IN RESTORATIVE JUVENILE JUSTICE

nombre del capitulo

Buenas prรกcticas de Justicia Juvenil Restaurativa

Good Practices of Restorative Juvenile Justice

â&#x20AC;&#x153;THE EUROPEAN CRIME PREVENTION NETWORK (EUCPN)â&#x20AC;? Juan Carlos Garrido Iglesias

To achieve the objectives, the EUCPN will facilitate the cooperation, the contacts and the interchange of information and experiences between the State Members and the national organizations, as well as the State Members and other European entities.

National Representantative of the EUCPN In Spain

The Network will contribute to identifying and developing the main areas of interest, formation and evaluation in the field of prevention, it will take and analyse the existent information of activities working towards the prevention of delinquency, it will analyse the best practices.

The origins of the European Crime Prevention Network (EUCPN) must be looked for in the resolution of 1993 of the European Parliament concerning small scale delinquency in urban areas and its link with organized crime. Also, in a resolution of 1998 about the main outline and measures for the prevention of organized crime with especial reference to the establishing of a global strategy to combat it. The European Council of Tampere, of October of 1999, concluded that there was a clear necessity for developing measures relative to the prevention of delinquency, interchange best practices and strengthen the network of international authorities charged with the prevention of delinquency, in this way to co-operate between national organizations specialized in this field, with special dedication to juvenile delinquency, urban crime and their relationship with drugs.

With all these antecedents, on the 28th of May of 2001, through a Decision of Council, there was created the present European Crime Prevention Network, in which take part the 27 States Members of the European Union, and as observers Turkey, Croatia, the General Secretary of the Council, EMCDDA (European Monitoring Centre for Drugs and Drug Addiction), Europol and the European Commission. From Spain, and the fundamentals elements that should guide the Network, there is carried out the said multi-disciplinary focus, stemming not only from a policing perspective but also from the world of the university. The prevention of delinquency covers all aspects which contribute to reducing the feeling of a lack of safety and security among citizens, as much quantifiable as qualitative. The network tries to contribute to the development of different aspects of delinquency prevention at a European Union Level and support the activities in favour of the prevention of delinquency at a national and local level. Although it includes all kinds of delinquency types, the Net, as it was previously

The European Network will organize conferences, seminars, meetings and other activities to share experiences, better practices and to disseminate the results. Also it will add experience to the Council and to the Commission when this is required by previous petition, giving assistance in issues related to the prevention of delinquency. The EUCPN has as one of its main assets its web page, which contains all the information about the latest events, advances and good practices related to the prevention of the delinquency, being one of the main links between the State members. It is certain that the Network has suffered from operational problems from its origins, reason by which the Network has been submitted to an evaluation that concluded in the beginning of 2009. There have been started from that moment, steps to correct the situation. All the previous is about to be concluded with a new Decision of the Council, which aims to offer to the EUCPN those methods and mechanisms necessary to make it smoother, more active and operational, converting it into a benchmark in the prevention of delinquency at a European level. From the 1st of January of 2010, Spain with Belgium and Hungary receive the swearing in for the Presidency of The European Union, Spain being the host country up to the end of June. This will mean that Spain will be the first country to deal with a new Decision on the Council of the EU; with the creation of the basis for creating a future Administration that is an outlet for the network; with the elaboration of some measures for proceeding that develop the Decision of the Council; with the creation of an annual Plan of work for 2010 that is clearly to be connected with the results of the year 2009. This will guarantee the continuity of action throughout the change. All the above reflects a period of transition that, without doubt, implies a challenge that Spain must confront with the maximum effort and seriousness, to bring us in reach of the objectives that the European Union proposes in the Prevention of Delinquency, and which is none other than the service of the citizens pertaining to it. l

The European Crime Prevention Network (EUCPN)

mentioned, will pay more attention to juvenile delinquency of an urban kind and that related to drugs.

Society as a whole must be involved in the development of collaboration between public authorities at national, local and regional levels. The causes for delinquency are diverse and therefore they must be approached with measures at different levels and from different perspectives to combat the delinquency in the most efficient way, transforming the EUCPN into a multidisciplinary organ.

Lectures Presented at the Transnacional Forum: Good Practices of Restorative Juvenile Justice

Evolution of the Legislation of Young Offenders

“EVOLUTION OF THE LEGISLATION OF YOUNG OFFENDERS” D. Manuel Conde Núñez

Judge Magistrate. President of the section 5ª of the Provincial Hearing of A Coruña.

The idea of establishing a different type of penal justice for minors arose in Chicago in 1899, from the movement of “Save the children”, which sparked off the creation of the tribunal for children, which constituted the first known attempt to treat them differently from adult. The law of Chicago of 1899 gave to the Tribunal the jurisdiction in the matter of children ‘’dependent, abandoned and delinquent’’. The functioning did not limit the possibility of intervening when the minor carried out a penal offence, but rather, there mission was equally the prevention and action in respect to the minors in all questions of family or protection that were necessary, without there being any formal procedures - the judge having ample powers of action and decision. In a parallel way they were created in Europe: Great Britain (1912), Spain (1920), the Netherlands (1921), Germany (1922) and Austria (1922), in a way that in the year 1931 there could be counted 30 countries with specific courts for minors and young people.

Our country, as a consequence of the philanthropic movements that were created to protect children, against the excesses and conditions of misery that emerged from the quick industrialization of the beginning of the century, there were born in the País Vasco and Cataluña the first courts for them: Bilbao (1920) Tarragona (1920) and Barcelona (1921).

The first Law that regulated its working was the Law of Fundamentals about the Organization and Attributions of Courts for Children, published on the 15th of August of 1918, object of successive reforms to get to the refunded text of the laws about the Court Tribunals of Minors, published on the 15th of August of 1918, object of successive reforms to reach the revised text of the legislation about Court Tribunals of Minors and the regulation for its application of 11th of June of 1948. This text has been valid up to 1992, when there was published the law 4/1992 of the 5th of June, regulator of the Role and Procedure of the Court for Minors. If there is taken into account that since 1978 there has existed in Spain a Constitution which establishes a system of guarantees and rights of people who

Lectures Presented at the Transnacional Forum: Good Practices of Restorative Juvenile Justice

must me submitted to a judicial procedure, without distinction of ages, and on the basis of the Principle of Equality of art. 14, it results as even more remarkable to prove that until the year of 1992 there have been applied to minors, who have undergone a penal procedure, some principles which cannot be reconciled to the Constitution. The text of 1948, inspired on the principals of the positivist School, considered the minor as a sick person with need of help and treatment, and as a consequence of the exemption from penal responsibility that the following penal codes were establishing for the 16 year-old minors, it created an inquisitional, arbitrary system in which wide powers were given to the Judge, without the existence of any check on proceedings and decisions, because it was believed that everything he or she did, was to help and protect the minor, who still wasn’t responsible for his behaviour. And principals which nowadays it is unthinkable to leave lacking in a penal process such as legality, typicality, formal adversarial, contradiction and right to appeals, or guarantees such as the right to be informed, to be assisted by a lawyer were banned. The Law wasn’t just apply to the minors that committed penal offences, but also to the ones who had behaviours outside the norm prostitutes, vagrants, idle or licentious persons and tramps. Worst of all were the consequences suffered by the minors, because the law allowed the possibility of adopting diverse measures, among the ones it used was the one of detention, without specifying the maximum limit of its duration and without the Judge being obliged to determinate it or to revise the resolution for each certain period of time. The Courts of minors, apart from the possibility of reform, assumed what was called the protective faculty, in virtue of the fact it was in protection of the minors against the undignified use of custody or education coming to mix both measures.

The Spanish constitution of 1978 supposes a substantial change which motivated important legislative reforms tending towards the adoption of substantial and procedural penal laws according to the principles and guarantees that established the said constitutional text; however, in Justice for Minors it did not make significant changes, and constitutional principles such legality, juridical safety, interdiction of the arbitration of public powers, categorization, equality before the law, the assistance of a lawyer, informing of the accusation formulated, or using pertinent means of testing. Until arriving at the present legislation, the Organic Law 5/2000, of the 12 of January, Regulator of the Penal Responsibility of Minors, there have to be distinguished the previous legislative changes.

Evolution of the Legislation of Young Offenders

Good Practices of Restorative Juvenile Justice

Lectures Presented at the Transnacional Forum: Good Practices of Restorative Juvenile Justice

1. - Organic Law of Judicial power of 1st of July of 1985 The above law regulated the creation of the juvenile courts, establishing in its article 96 that in each province, with jurisdiction in the whole and having its seat in the capital, there were to be one or more Juvenile Courts; making available art. 97 which pertains to the Juvenile Judges and the exercising of the functions which establish the laws that the minors had incurred by certain conducts characterised by the Law as crimes or misdemeanours and those which, in relation to the minors, the laws have attributed to these judges.

The special thing about the said declaration of unconstitutionality was that those trials and tribunals of minors which existed in that moment were without a procedure capable of being applied to the judging of minors, and the constitutional tribunal, conscious of this, offered to the judges a transitional situation. This tribunal is well aware that the declaration of the unconstitutionality of art.15 LTJM, where there is only reference to correctional procedures, creates an unclear normative situation and even the absence of a norm which only the will of the legislator can compensate for definitively. For this, as we did with the verdict 71/1990 we have to underline the extreme necessity that in agreement with what was set out in the first additional clause of the Organic Law for the Judicial Power, the Parliament proceed to reform the guardianship legislation.

In the provision 4ÂŞ there is preparation for the substitution of the Guardianship Tribunal of Minors with the Juvenile Courts, for which the law 38/1988 of 28th of December of the Judicial Demarcation and Plan, established the constitution, of 70 trials of Minors, which was done just in the cities with a bigger volume of work, up to a total of 38 Minors Court, which promoted the objective that during certain period of time the Court of Minors and tutelary tribunals would act together, these being served by Magistrates, in a regime compatible with its aims. Currently in all provinces there is at least one Court for Minors. 2. - Law of 21/1987 of November and the Organic Law of 1/1996 of 15th of January for Juridical Protection of the Minor. The said laws attribute the role for the protection of minors in the Autonomous Communities. 3. - Sentences of the Tribunal Constitutions 36/1991 of 14th of February. This sentence declares the unconstitutionality of art. 15 of the old law of Guardianship Tribunals of Minors, rooting from four resources for unconstitutionality proposed by various Juvenile Judges, and it supposes the basis of the whole evolution just as much legislative as of jurisprudence, which this country has produced. In the said verdict it has been determined that art.15 of the law is unconstitutional, which established that in the proceedings to correct minors, the sessions held by the Guardianship tribunals of Minors should not be public, the tribunal will not follow the presiding procedural rules in the other jurisdictions and the limitations in the carrying out of those which are indispensable for addressing those acts which will found the resolutions that are dictated. For those which are written concisely, a specific mention is to be carried out in the measures which are to be adopted. In the founding of the second judicial rule, the Constitutional Tribunal made it understood that the juvenile trials are both ordinary trials and specialised ones, for which the fundamental rights enshrined in art. 24 of the constitution have to be respected. The said tribunal also made it clear that art.15 goes against the principals of juridical protection and equality of art.9.3 and 14 of the constitution.

Ultimately if this doesnâ&#x20AC;&#x2122;t happen it will be the judges themselves who will fill the gap produced. Fortunately, the mentioned article 40.2 b) of the CDN and our own doctrine, concerning the rights guaranteed in article 24, and especially, about the right to the impartial Judge (where the principal of the contradiction is derived and in harmony with the presence of the accuser in the penal process) can facilitate the carrying out of this task. Thatâ&#x20AC;&#x2122;s why the Juvenile Judges, which in that moment were in front of a court, exceeding the only functions which are demanded by article 117 of the constitution, to execute and ensure the execution of that judged, had to become legislators and design simple procedure, adapted to all of this norms, which is to say to invent a procedure, given the passivity of the executive and legislative powers, there is an agreement that a lawyer 4.-Organic Law 4/1992 of the 5th of June, regulator of the role and procedures of the Juvenile Courts.. Despite what has been said before, a year and a half had to pass until the law 4/1992 of 5th of June that gives a new denomination to the law of the Guardianship Tribunals of Minors and reforms that law partially to serve the processing of those constitutional demands. As notes to the said proceedings the following must be highlighted: a) To favour the separation between the functions to instruct and judge there was given the preliminary reading over of the evidence by the Chief Prosecution the juvenile Judge went on to judge and control the execution, save without his presence in an appearance of the minor before the court to declare the facts relating to his responsibility and that was called an intermediate phase by the Constitutional Tribunal Verdict 60/1995 of the 17th of March. b) As a consequence the Chief Prosecution, as in the Anglo-Saxon model, receives the accusations that were presented against the minors for having

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Lectures Presented at the Transnacional Forum: Good Practices of Restorative Juvenile Justice

committed the crimes, and they decide on the basis of a very broad and unregulated principal of opportunity, if the action against the minor was suitable or not. It also directed the investigation of the facts, propelled the proceedings, and agreed on the putting into practice the tests that it considered opportune, asking the judge for the preventive measures which he deemed necessary, including the provisional internment of the minor due to the serious facts and attending to their personal and family circumstances. Also he asked for a judicial authorisation for the specific tests concerning rights and freedoms. Also, applying the principal of opportunity, the prosecutor could ask at any moment during the carrying out of the procedure for the file of acts and decide on the possibility of offering to the minor the carrying out of an extra-judicial reparation in the case of non-violent crimes, to avoid the continuation of the process, if the minor recognized the acts of which he was accused and he showed willingness towards an act of reparation in relation to the victim and society.

of an adult, and in continuation the judge is called on to make a resolution similar to a sentence with the possibility of being reheard before a Provincial Hearing. This process, despite its defects, was, if we take into account the previous situation, one of the most important processes which have been carried out in achieving the penal treatment of the minors who are at least equal in guarantees and rights as adults, even though they are with special features.

c) Because of the lack of a particular accusation in the process, because of being expressly excluded, the prosecutor had broad powers, the penal process being clearly different in the case of adults, presided over by the principle of legality. On the other hand, the action in the phase of instruction by the minor’s lawyer wasn’t set out except for provisional detention. The Judge of the Juvenile court had a very limited role and being bound, with a very narrow margin of action, to the principle of prosecution. This is why the process established by this law had an evident imbalance of powers between the different parts, because the victim wasn’t even considered as such, and then the minor wasn’t assisted by the Lawyer from the first moment. d) For the first time there is established a minimum age under which Juvenile Justice cannot intervene. The limit was 12 years of age and if the minor of this age commits a crime, in contrast to the previous case (whatever its gravity was) everything else would come under the action of a corresponding public protection entity if the personal or family acted to advise it. The maximum limit continues to be 16 years of age and in this way the Law would remit the fixed age in the Penal Code to matters of criminal responsibility. e) The procedures were divided into the preliminary reading over by the prosecution in which as well as investigating the acts which were put together in the report by the Technical team, an instructive phase in which the minor attends a questioning by the Judge of Minors in which and if the Prosecutor decided to continue and go ahead, a phase in which the Juvenile Court, following the documents of the allegations of the Prosecutor and the Minor’s lawyer, an audience is held which is similar to a penal trial

-f) The minor was assisted obligatorily by the lawyer in the act of the hearing as well as in the moment of the detention and adoption of the cautionary measures, though during the appearance before the judge this attendance by the minor and his or her representative declaring in defence before the judge is voluntary. -g) Article 17 of the Law 4/1992 was setting out a wide catalogue of definitive measures to impose on the minors, whose maximum limit of duration was two years: warnings, internment from one to three week-ends, freedom under supervision, shelter, privation of the rights to drive mopeds or motorised vehicles, services in benefit of the community, treatment in a state health service clinic or internment in a therapeutic centre, admission in a centre of open, semi-open or close regime. The measures could be reduced, substituted by other lighter measures or left out of effect. -h) There was the possibility of the Judge, by request of the Chief Prosecution agreeing on the adoption of a measure including the provisional detention of the minor, that was limited to the maximum period of a month, that could be postponed in a legal ruling motivated by serious acts and with repercussion and if their personal or family circumstances made this approach advisable. -i) All the resolutions could be appealed before a Provincial Hearing. This Law introduces a new penal procedure of minors - without any possibility of exercising any actions by individuals - that tends to ensure the minor a better respect of his personal and procedural guarantees and the recognition of the fundamental rights claimed by the constitution: right of defence and to have a process with full guarantees, giving to the Ordinary Judge, predetermined by the Law, the right to be informed of the facts he is in charge of, right to be treated as innocence until proven guilty and the right of not declaring against himself. Nevertheless, estimating that the legal regulation of the right of defence of that law, considering the intervention of the lawyer is allowed, only after the accusation is formally written - except when a safety measure of internment is applied for - was clearly unsatisfactory, given the degree of vulnerability that a minor presents in the judicial and prosecution phase. This treatment

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Lectures Presented at the Transnacional Forum: Good Practices of Restorative Juvenile Justice

is not easily compatible with the guarantees demanded in art. 40 of the Convention of the Rights of the Child, following which, the minor should be informed, without delay and directly, concerning the charges which weigh against him or her.

terms, until the Organic Law of the penal responsibility of the minors started to be considered as adults in terms of the penal system on the 13th of January of 2001, the young between 16 and 18 were still considered of penal age and were submitted to the same penal regime as the adults, that doesn’t respond to the principals that, following the international normative, must preside over the justice of minors and has resulted much more serious in all senses, from the regime of provisional detention up to the punishment, which in that day, could be imposed and they were serving until the 13th of January of 2001.And all this because, seeing the useless interest that they have towards the problems related to minors and youth, the politicians didn’t worry about because the coming into effect of the Penal Code there was already in existence specific legislation about the responsibility of young offenders under 18, that should have been acted on in accordance with that code. (In any case, if there had been interest in this issue, they could have been dictated explicit measures, establishing the application of the Organic Law - regulator of the competence and proceedings of the Court of Minors, that was already working for those under 16, for those under 18, waiting for new regulation).

5-Penal Code of 1995. The Penal Code of the 23rd of November of 1995 meant a very important change in the criminal politic of the Country, affecting as well to the minors in penal age. Those below penal age receive different treatment from others for the first time. In fact in article 20 there are put together the causes that remove criminal responsibility, but it’s not in this article but in 19 which expresses that “undereighteens won’t be criminally responsible following this code. When a minor of that age commits a criminal act he will be responsible following the arrangements in the Law that regulate the penal responsibility of the minor” In this way, the legislator has wanted to establish a clear distinction between the traditional causes that estimate the criminal responsibility and that of being under penal age, creating with this a new form of responsibility different from the adult one. Following the code, the young will be responsible in relation to the provisions in the law that regulate penal responsibility of the minor. The minor is not excluded from the penal law but rather the common penal law and barring that, following the recommendation of the European council and other international bodies, by the so called responsibility model, introduced in the comparative law (Germany, Austria, France), where there exists a system of Juvenile penal responsibility which totally excludes the borderline cases of minors situated between 12, 13 or 14 years of age to which are applied in all instances the legislation for minors, and as a general rule reaches up to the age of 18 and semi adults between 18 and 21 where, in accordance with the circumstances, Juvenile Penal Law may or may not be applied. Nevertheless, when on the 25th of May of 1996 there came into vigour the Penal Code of 1995, the raising of the coming of penal age did not occur in this way, in setting out in the second paragraph of the Seventh Final Disposition, after stating in the First Paragraph that the code would take effect in six months after the complete publication in the BOE, that ‘’Despite the previous exception there remains, until the entrance into vigour of the art.19, and until obtaining it’s effect, the law which regulates the responsibility of the minor which refers to this said precept’’ At the same time, and as a consequence of the first repeal clause there was made an exception of the repeal articles 8-2 and 9-3, among others, relative to the other exculpatory and extenuating factors of age respectively. Therefore, if formally the Penal Code of 1995 has increased the coming of penal age to 18, making it coincide with the coming of legal adulthood in civil

ORGANIC LAW 5/2000 OF THE 12 OF JANUARY of Penal Responsibility of the minors that started to work on the 13th of January of 2001.

The Organic Law 4/1992 pointed out in its Exposition of Motives that ‘’has the sense of an urgent reform which takes over part of a renovated legislation about reform of minors which will be object of posterior legislative measures”. Despite this explanation, until almost nine years have passed from that Law and 22 years from the proclaiming of the Constitution, the Legislation about Penal Responsibility of minors didn’t come into effect. The mentioned Law was modified, even before than it started to function, by the Organic Law 7/2000 of 22nd of December that inaugurated the Central Court of Minors of the National Hearing, giving it competence in matters of terrorism related to delinquency, with resort to an appeal before the board of qualified persons of the National Courtroom. The said law also increased the duration of the measures. In its original version there was fixed a maximum period for detention as 5 years for those above the age of 16 and as 2 years for those below that age, and by the new clause written introduced into the law in 7/200, those younger than 16 who commit one of the crimes of murder, murder in the first degree, sexual assault, a crime of terrorism or one sanctioned in the penal code, with a punishment of prison equal or superior to 15 years, there can be applied a duration of conventional imprisonment up to 4 years or for those older than 16 up to 8 years; and up to 5 and 10 years respectively when they are also responsible for a crime which is also classified as serious and sanctioned for 15 years or more of prison, when it is related to terrorism. Also, there has been established that the measures imposed on those older than 16 for the said crimes cannot be modified or left without effect until there has passed at least half the term of the sentence.

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Good Practices of Restorative Juvenile Justice

Evolution of Del the Legislation of Young Offenders Nombre Capitulo

Also there has been produced another modification, before the coming into effect of the Organic Law of 4/1992, which establishes the role of the resources for appeal for Provincial Court cases, instead of the Court for Minors of the High court Justice Tribunals.

Modifications of the Organic Law 5/2000. 1. - Law 15/2003 of the 25th of November. To introduce the subject of the particular accusation this until then, in the jurisdiction of Minors, was only permitted in very limited cases.

2. - Organic law of 8/2006 of the 4th December. a) There has been an increase in the allowances for those minors on whom conventional imprisonment can be imposed, paying attention to those already in existence, the cases of commission of serious acts or those committed in a group or when the minor belongs to or acts in the service of a gang, organization or association, including if of a transitory character which is dedicated to the realization of these activities. b) The duration of the measures is made to suit the crimes and the ages of the young offenders and the possible application of the law to those between 18 and 21 has been definitively abolished. Moreover, there has been added a new measure, similar to that set out in the penal code, which consists in the prohibition of the initiation of meetings by the young offender with the victim, or attempted communication, or those their family or any related persons, as determined by the judge. c) The judge is empowered to agree before an audience of the Chief Prosecutor, and the entity for the protection or reforming of minors, that the minor that might be undergoing imprisonment in a conventional institution and reaches the age of 18, can complete the measure in a penitentiary centre when his or her conduct does not respond to the objectives proposed in the sentence. d) If the measure of internment in a conventional closed regime is imposed on someone who has reached the age of twenty or imposed before, has not completed the sentence by the said age, the judge will order its completion in a penitentiary centre, except for when there is a substitution or a modification of the measure. e) The risk of going against the legal interests of the victim is incorporated as a cause for adopting a cautionary measure and there is established a new cautionary measure consistent with the removing of the victim or the family or other person determined by the judge. At the same time the

Lectures Presented at the Transnacional Forum: Good Practices of Restorative Juvenile Justice

duration of the cautionary measure of internment, having passed 3 months, can be postponed for another 3 months, in sixth months for another 3 months.

Conclusion DLately, not just in the pages of newspapers and news on radio and television are minors the passive objects of violent acts which call our attention but rather youth has passed to become, in distinct cases, active agents of these violent acts.

In the Media in these last years have appeared news items about offences committed by minors, sometimes of extreme seriousness, in Spain as well as in other countries ( Boys A and B in England, minor who killed all his family in France; boys as paid assassins in Moscow; boys as paid assassins in Colombia; contracted by drugs rings; 11 and 12 year-old boys who kill their schoolmate and in Spain, girls in CĂĄdiz who kill a school mate, a minor in Murcia who kills parents and a sister, and the juvenile murderers of Sandra Palo and Marta del Castillo). Without any doubt the increase of the crimes, and above all their seriousness, committed by young people, has lead to questions about the suitability of juvenile justice. In Spain, these doubts about the justice of minors, which is to say, about the appropriateness of applying different sanctions to adults, taking account that they are not adults yet but adults in the making, are deduced from acts such as the LORRPM did not start to come into force until the 13th of January of 2001, which is to say after 1 year having passed since its publication. Until that date the penal age was not raised to 18, in spite of the special legislator having understood that until that age, young people didnâ&#x20AC;&#x2122;t have to be judged following the penal code, as is confirmed by the fact that the penal code of 1995 raised the penal age from 16 to 18 years - but this did not become a reality till the coming into effect of the LORRPM. The distrust of the Justice of Minors by the legislator is corroborated by the fact that during the period of vacatio legis of one year of the LORRPM, the legislator took advantage of the time to introduce the fourth additional disposition by reform of the Law 7/2000 of the 22nd of December, that means making the measures weightier, well before the reform of the duration of internment was fixed as 5 years for those over 16 and 2 years for those of a less age. After the reform the duration of those measures reaches 10 and 5 years, respectively, and even more, with the creation of the Central Court of Minors with all that this implies. The same thing has happened to all the modifications introduced by the Organic Law 8/2006 of the 4th of December, which we made reference to previously, mainly when it makes possible that the measure of internment in a closed centre can be fulfilled in a penitentiary centre, which means a whole undermining of the objectives that the legislation for minors should pursue.

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The lack of criteria of the special legislator in this topic is clear as in less than a year it has passed from attempting that the LORRPM be applied in some cases to youth over 18 and under 21 years, to make weightier the measures for the under 18, that in some cases even, are judged and undergo measures away from their homes, where there is supposed to be, as expressed by the Law in its Exposition of Motives, the re-socialization of the minor. This lack of criteria is historic, well until it is observed that the Law project of 1980 for the reform of the penal code tried to bring down the limit of penal age to 15 years of age, justifying the decision in the criminal danger that those minors show nowadays: nevertheless, in the Proposition for the Preliminary draft of a New Penal Code of 1983, to be under penal age was raised to 18 years and it was proposed that there be regulated a special regime for youth over 18 and under 21. Hypocrisy in relation to the jurisdiction of minors is also frequent. There is so much applause and importance given in the daily news when a Judge of Minors decided on imposing upon a minor the obligation of learning how to read and write, as it is also put forward that some minors under penal age that have committed an serious crime, must carry out a measure of internment in a closed regime in a Penitentiary Centre. Here is stated the desire that the modifications made by the Organic Regulated Law of Responsibility of Minors, are taken from a full and deep study of the application of the Law, taking account of the results obtained since the Law started to function, and not that they should arise in response to the commission of some criminal acts, even though they may be very important, and are object of corresponding punishments. They can’t become, by the frequent and repetitive appearance in the media as news, the origin of legal reforms. l

Lectures Presented at the Transnacional Forum: Good Practices of Restorative Juvenile Justice

“REPARATIVE JUSTICE AND THE PENAL RESPONSIBILITY OF THE MINOR” Carlos Mariscal de Gante Castillo Prosecution Delegate of the Section for Minors of the Provincial Prosecution of A Coruña.

The principals of the Law for Minors Firstly we must start from the principal that “the penal responsibility of minors presents before the adult a major characteristic of educational intervention that transcends all aspects of juridical regulation and determinates considerable differences between the sense and the procedure of the sanctions in one sector and another”. There must be taken into account that the procedure of the Law of the Minor is towards the adoption of some measures, that mainly must not be repressive, but they must be orientated towards the effective rehabilitation and the greater interests of the minor, with an educational content mainly, if well-shaped by the principal of proportionality between the act and the sanction, without forgetting the interests of the victim or the damage of the crime, that apart from the punishment, it demands a compensation, in the case of the damages and illeffects, and from which the parents or legal representatives are going to respond to the minor with solidarity. The terminology of the Law of the Minor is deliberately different to the one used in the Penal Code with those who have reached their majority. Punishment is not to be talked about but rather measures, the judgement is called a hearing and the measures are imposed with the criteria of great flexibility, responding to the concrete circumstances of the minor, which doesn’t happen with the adults. Measures in this way imposed on the minors can be substituted for other ones at any moment, or even being left without effect, although also it is true that in certain assumptions in which the minor evolves negatively there can be agreed that the internment under close regime is fulfilled in the penitentiary centre. With independence of the always polemic question of fixing the minimum limit of age from which must be applied the Law of the Minor, as well as the maximum duration of the internment measures, the consideration of the minors as forming people demands that any treatment applied (through the execution of the measures set out in the LORPM) must be orientated, more than towards punishment, exclusively, more towards their recovery, and in future, their social integration, for which it will be in all points necessary to know their personality and the problems that affect them.

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Lectures Presented at the Transnacional Forum: Good Practices of Restorative Juvenile Justice

Extra-judicial mediation with minors as offenders, who have come within the area of penal law.

There also exists a place for an opportunity, in the case of the impossibility of the conciliation (sometimes because the victim doesn’t accept the apologies) or direct or social reparation, or when the specialized Team considers it more adequate for the minor’s interest, for the Team to propose to the minor the carrying out of socio-educational tasks or services in benefit of the Community.

The extra-judicial measure, referring to the alternative mechanism for the penal process of the minor, it is only to be understood to apply –as it is known- in those situations in which violence or intimidation do not come together in the commission of the crimes attributed to the minor, and always that these constitute a less important crime or a misdemeanour. The legal regulation is found contained in the art. 19.3.4 and 51.3 of the Law for Minors and the art.4, 5, 8.7 of its regulation.

Without prejudicing the functions of the mediations attributed to the Technical Teams, also the Public Entities can put at the disposal of the Chief Prosecution and the Courts for Minors, in this case, the programmes necessary for the bringing about these mediating functions.

These treat of a form of filing for the initiation of legal proceedings against the minor for the alleged commission of less serious crime or misdemeanour, there always being no violence or serious intimidation in the commission of the acts and that the minor has also conciliated with the victim or has assumed the commitment to repair the damage caused to the victim or the person prejudiced by the act, or has committed himself or herself to complete the educational activity proposed by the technical team in its report.

The articulation of these extra-judicial solutions of article 19 LORRPM thus constitutes a mechanism of basic derivation in the penal processes for minors, not just that with them can be avoided unnecessary judicial processes but also because there be achieved an immediate satisfaction for the victim or aggrieved party, and what is most important, an obligating of the minor to take responsibility for the act in an immediate way, assuming the derived from the same, for which the educational content is highly beneficial for the interest of the minor.

The conciliation is understood to have taken place when the minor recognizes the damage caused and says sorry before the victim, and this person accepts the apologies, and the reparation is understood to be the commitment assumed by the minor with the victim or person prejudiced to carry out certain acts in their benefit or the community’s, following the effective realization of this. All this without prejudicing the agreement come to by both parties in relation to civil responsibility

Therefore, to carry out an extra-judicial solution there should always be equally observed a double premise: a) that the minor be identified as the author of the act and b) obtain the voluntary consent to undergo a mediating intervention.

In the case of the minor not fulfilling the reparation or the educational activity agreed on, the Crown Prosecutor will carry on with the carrying out of the prosecution procedure. The principal effect of the mediation consists, once this has been obtained, in the Crown Prosecutor desisting in the continuation of the expedient, and assuming the conclusion of the instruction, he could send to the Court of the Minor, asking for the stay of judgement and filing of the acts. It belongs to the Specified Team to carry out the mediation functions, in the properly established way set out, informing the prosecutor of minors of the commitments obtained and their degree of completion. Even the conciliation of the minor with the victim, in any moment of the procedure in which the agreement between both of them is produced, will be able to produce the filing of the expedient, even leaving without effect the measure imposed.

If there is no concurrence with either of these previous conditions, it will be very difficult to get to the point of carrying out mediation. In the last years, and as an alternative to a penal process, there has been showed that there is a growing importance to mediation as an extra-judicial solution, and not only in Spain but also in other countries of the European Union. In this sense there has been a fundamental importance in our country in the progressive creation in diverse Autonomous Communities of teams of technicians specializing in and dedicated exclusively to the carrying out of conciliations and reparations and so it seems, with a magnificent result by the great index of achieved agreements, taking work away from other teams which were already overloaded. In this way there has arrived the promulgation of various autonomous programmes concerning this matter and the creation of Specialized Mediation Teams, as well as the launching of numerous agreements and alliances between the services belonging to each community and the town councils, which are related to the programmes of mediation and reparation with their own protocols. The result therefore is in all points desirable, within a progressive utilization of the principles of opportunity and derivation, the overcoming of various obstacles of means for the materialisation of extra-judicial solutions, especially in reference

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to the difficulties that the Teams have at the time of finding resources that enable the minors to carry out activities for the benefit of the community in the context of reparations, so that it would be on all points necessary to involve, every time more, the diverse autonomous governments through their corresponding collaboration agreements with the Autonomous Entity.

The acts which are the subject of the accusation to which are usually applied extrajudicial measures are: misdemeanours and crimes of robbery: violent robbery, robbery by use, damages, threats, coercion, bodily harm (of a lesser seriousness), domestic violence and sexual abuse. Lately, and as a good example of actions in this direction, we can cite the educational cooperation for the carrying out of road safety courses, signed between the Prosecution of Pontevedra and the Council of Vigo (In Coruña we are trying to do the same ,and in a near future for Santiago and Ferrol as well) to establish a frame of acting that offers correctors measures that make easy the assumption of rules by the minors…..in the case of road safety, substituting in this way actions of penal responsibility by educational activities in matters of road safety and raising of awareness in relation with the behaviour which led to the extra-judicial measure.

In another aspect, the necessity for achieving more depth in these principles has been highlighted in the Recommendation (2003) 20, of 24th of September of the Committee of Ministers of the Council of Europe concerning new ways of dealing with juvenile delinquency and the role of juvenile justice in its point lll.7. From another point of view, in the phenomenon of juvenile justice there generally exists a unanimous consensus at the time of approaching the problem in the sense of being able to develop programmes for the intervention and prevention, where mediation would be a valuable resource for the management of interpersonal conflict between equals, always referred to the lighter cases or those of lesser gravity. This state of affairs has suffered a gradual change in the last years through the promulgation of various autonomous programmes concerning this matter and the creation of Specialized Mediation Teams, as well as the launching of numerous agreements and alliances between the services belonging to each community and the town councils, which are related to the programmes of mediation and reparation with their own protocols.

The two Specialized Teams of Provincial Jurisdiction of minors in the Province of A Coruña (Prosecutor and Minor Court) have been doing extra-judicial solutions with minors (conciliation and reparation) during last year 2008, with a percentage of success similar to the previous year, around 95%, with an index of re-offence of just the 5% of minors offenders submitted to this type of intervention. The percentage of registered extra-judicial solutions in 2008, related to the total of cases done, follows an increasing evolution, as it can be observed in the following comparative research:

It is, then, the Autonomous Administration – in our case the Work and Welfare Council – to whom belongs the mission of guaranteeing that the Specialized Teams carry out their functions in the terms demanded by the service, adopting the measures which will opportune success; determining the number of the Specialized Teams necessary, their composition and staff, in conformity with the necessities presented by the Prosecutions and the Court for Minors. This can be carried out via two paths: once incorporated, in a temporary or permanent way, to the technical teams, other professionals related to the functions that have been attributed, (art.4.1, paragraph 3º, Regulation), or the Public entity, carrying out the functions of mediation, putting at the disposal of the Prosecutors and Judges of the Juvenile Court the programmes necessary to carry out the functions of the mediation. The Specialized Teams ascribed to the Prosecution and the Court of Minors, come to carry out more extra-judicial solutions every year (conciliations and reparations) these growing to 56.98% during last year 2008 in our Autonomous Community, which meant an important inter-annual decrease in the number of sentences read out (around -47.95%) and with a success of 95%, which is, only 5% of the minor offenders submitted to this type of intervention re-offended.

Now, we are going to show the intervention of the Specialized Teams in the extra-judicial solutions in the province of A Coruña.

Justification for using such measures

These manifestations of juvenile violence generate in the Community a great worry, Presented by the media with constant news about domestic violence, school bullying, vandalism, drinking in the street, graffiti in unauthorised zones etc. The extra-judicial resolution of the accusations derived from these behaviours can bring in a spectrum of advantages.

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Lectures Presented at the Transnacional Forum: Good Practices of Restorative Juvenile Justice

The benefits that the extra-judicial solutions have are the following: s Educational : n Conciliate the accuser and the accused.. n It is achieved the moral gratification of the victim. n It allows the reparation of the harm caused. n It makes possible an educative intervention, putting the minor before the victim, making possible that this one learns to put himself in otherâ&#x20AC;&#x2122;s skin and making him assume the responsibility of the acts n It speeds up the legal transaction and it allows promptness between the act and its solution: making the victim happy and allowing the minor to associate his inadequate behaviour with a consequence. n It brings about an act of reflection on the part of the minor who integrates the facts and avoids re-offence: the number of reoffences submitted to the process of conciliation-reparation being not more than 5%. s Economical: n It avoids the days off for the witnesses and saves in the payment for Court attendance n It reduces the expenses derived from the assistance of the Lawyer (most of them are lawyers hired by the state ) n Savings on the working hours of the different persons intervening in the procedures for minors (judges, prosecutors, secretaries and civil servants in charge of the transaction). s Socio-political reasons n There is given an immediate response to the issues that cause social alarm: maltreatment in the family context, School bullying, urban vandalism, consequences of drinking in the street, etc. n Reduction of the delays in the Justice of Minors: because of a lesser number of judicial transaction (trials, follow-ups, revisions), there could be given a faster response to the crimes of more importance, and prescriptions would be avoid (archive by paralysation)

contributes to this aim in contact with the both opposed parties with the neutral action (mediation) of an agent who searches for an agreement without having to arrive at the sentence dictated by a judge. s That ultimately the professionals who should carry it out are the members that constitute the Specialized Teams ascribed to the Prosecutions and Courts for Minors: educator, psychologist and social worker.

Action on the side of the Specialized Teams.

As we have previously explained, the juridical basis of that mentioned is found in: s The OL 5/00, of the 12th of January, Regulator for Penal Responsibility of the minor, art.19.3 and 4. s The R.D 1774/04, of the 30th of July, by which is approved the regulations of the O.L 5/00; 4 AND 5 The Specialized Teams â&#x20AC;&#x153;will carry out functions of mediation between the minor and the victim injured partyâ&#x20AC;? (art.4.1 of the regulations). The Regulatory Law of the Penal Responsibility of the minors 5/00, makes it understood that: s It is a specifically educational function: not from the judicial area. s It has an extra-judicial character: being done before and without the necessity for a judicial sentence; that it is an intervention which 100

The carrying out by other agents from distinct entities contributes to the loss of the principles of proximity and immediacy and would complicate unnecessarily the process, making it lose its whole sense. It is evident that if the Specialized Team ascribed to the Court for Minors derives, once having been accepted by both parts, the conciliation/reparation of the minor/victim to other professionals from the area of justice or education, the educational intervention would be duplicated and impose upon the accuser and the accused new interviews, evaluations and unnecessary acts, undesired and not at all practical. Comparison of the phases of the extra-judicial solutions:

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Conclusions: The innumerable advantages of this type of solution are evident in the field of juvenile Law. Nevertheless, the work by which the mediation is carried out and which falls to the Specialized Teams to the Law Court and the Prosecution of Minors is considerable, because apart from the process pointed out in the previously shown scheme, of the 94 extra-judicial interventions carried out up to now in this year, 30 contain reparations which can be accompanied by services in benefit of the community and socio-educational tasks which require a supervision by them and contacts, collaboration and agreements with public and private entities; another 15 were united in commitments which in the majority of cases have a follow up of 3-4 months.

“MEDIATION IN THE JUVENILE JUSTICE SYSTEM. CHARACTERISTICS” SLIDE 3 D. Juan Luis Basanta Dopico Psychologist of the Chief Prosecution of Minors and Court of Minors, Ourense

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It is indubitable that the extra-judicial measures are very positive and they must be taken into account. Also there must be accepted that there be an increase taken on board by the Specialized Team from A Coruña which is going to continue along the same lines. For this reason it would be necessary to apply measures apt to this situation, through the creation of specific teams of mediation, or also by increasing the staff with another Specified Team and with support personnel for the administrative tasks (an inexistent feature at the moment and demanded for many years), which are to be carried out by the work of the Administration. l

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“RESTORATIVE JUSTICE IN SCOTLAND” “justicia restaurativa en escocia” Prof.Dr Michele Burman Prof.Dr Michele Burman SLIDE 3 University of Glasgow. Scottish Centre of Crime University of Glasgow. Scottish Centre of Crime and Justice Research. Scotland. UK and Justice Research. Scotland. UK

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Newcastle University. Research Associate, Scottish Centre for Crime and Justice Research. UK

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Reparative processes are ways of repairing the damage caused by offending behaviour. Reparation is generally viewed as restorative only when the victim has been consulted and the offender has not been coerced to provide reparation. Reparative processes include: Reparation to the victim E.g. an oral or written apology, or financial or supervised activity-based reparation to the victim. Community reparation Includes a variety of activities to pay back benefits to the community, including work similar to community service activity.

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Along with this new disposal came a novel way of administering the sentence. The Referral Order, initially given by the court, actually relies on a contract drawn up between the young person, their parent or guardian, and a specially trained Youth Offender Panel (YOP), which is made up of two volunteer representatives of the community and a youth offending team (YOT) member. The Panel aims to be ‘representative’ of the young person’s neighbourhood and, indeed, some 5,000 community volunteers have already come forward to participate, 40% of whom had never volunteered before. Panel members have proved to be positive, keen and committed. The victim is also invited to join the meeting at which the contract is drawn up. The contracts include an element of reparation to the victim or wider community and a programme of activities designed to prevent re-offending. Panel meetings are less formal than a court appearance, taking place in a ‘neutral’ environment, such as a local community centre. The young person’s compliance with, and completion of, the contract is monitored through Panel review meetings, which take place every three months.

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In April 2002, following 11 successful pilot schemes, a new disposal for young offenders was introduced throughout England and Wales. With its own set of ‘three Rs’ – reparation, responsibility and reintegration – the introduction of the Referral Order has helped to change the focus of the youth justice system, placing restorative justice at its heart. The overriding aims of the Referral Order are to make young people aware of the impact of their crime, enable them to make good some of the damage and distress they may have caused, and to deter them from re-offending. The Orders are now mandatory for all young offenders aged 10 to 17 pleading guilty and convicted for a first offence, unless the offence is minor enough to warrant absolute discharge, or serious enough to result in custody. Referral Orders last between three and 12 months, depending on the seriousness of the offence committed

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While the administration of the Referral Order has created some difficulties for those delivering it, on the whole, victims of offences have greatly benefited from the new disposal. However, the Youth Justice Board recognises that victim involvement can be difficult. It is, therefore, currently looking at ways to ensure that even more victims can play a major role in the Panels and has set a target that 70% of victims are satisfied by 2004. Victim involvement is essential: the evaluation of the pilot scheme indicates that victims are more satisfied with restorative procedures than with the traditional justice system. Not only does it give them the opportunity to have their say about how the offence affected them, but, in many cases, it also allows them to ask questions and receive information. In most cases, victims learn that the offence was not personal and that they are not at risk of a repeat offence. The key to improving victim contact is for YOT workers to have the appropriate training in working with victims. Effective practice for restorative justice has now been rolled out by the Youth Justice Board, emphasising messages about what works in involving victims in restorative justice processes. This will be reinforced by a basic training qualification for all YOT practitioners, the Certificate in Effective Practice, which will include knowledge and understanding of effective practice in restorative justice.

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Based on YOTsâ&#x20AC;&#x2122; quarterly returns, during 2006-07, 38,574 victims of youth crime were offered the opportunity to participate in an RJ process. Of these, 46% or 17,728 victims chose to participate in a restorative process, and of these 5,952 (1 in 3 of all participating victims) participated in face-to-face RJ. The remainder - 11,776 (2 in 30 participated in indirect, or non face-to-face, RJ. Of 11,251 victims commenting on their RJ process, 10,964 stated they were satisfied or very satisfied.

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From a human rights standpoint, we need good practice regulations, which specify the types of reports judges will get, and we need assurances that there will be no undue pressure to either victims or offenders. The other thing that’s really important, if you do this kind of RJ, is that whatever is said during the event does not become evidence in any subsequent criminal or civil proceeding — that it’s not a fishing expedition. It was agreed in the schemes we reported on that this would not happen, but if it’s rolled out or done more widely, and I hope it will be, one has to set these safeguards up — as it has been in other countries [such as New Zealand and Northern Ireland].”

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We are also piloting the Youth Restorative Disposal which is a new approach to tackling low level first time offences. The police will use the principles of restorative justice, bringing the offender and the victim of the crime together and agreeing on steps the young person must take, including apologising for their actions. Eight police forces are involved in the pilots and are working with YOTs to examine the role the Youth Restorative Disposal can play in nipping early offending in the bud, avoiding criminalising young people for low-level crime and also as a trigger to identify any underlying problems which may lead to future more serious offending. Subject to the successful evaluation of these pilots, we will look to expand this approach.

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â&#x20AC;&#x153;Bulgaria on the road to victimoffender mediation and restorative justice for juvenilesâ&#x20AC;? Prof. Dr. Dobrinka Chankova, Chair of the Institute of Conflict Resolution â&#x20AC;&#x201C; Sofia, Bulgaria

1.THE STATUS QUO Although in the last decade Restorative justice and mediation in all fields (civil, labour, penal matters etc.) has had numerous proponents in academic circles and non-governmental organizations (NGOs), and has won recognition in wider society, it only recently began to attract the attention and support of policy makers and members of Parliament, and not without a push from outside. At the same time, generally recognised was the fact that the existing criminal justice system in Bulgaria: s is far from efficient, s does not function in a satisfactory way, and s is in need of a change.

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However, in 2003 the Government adopted a Strategy for Judicial System Reform representing a condicio sine qua non (a prerequisite) for the Bulgarian membership to the European Union. A notable point in this strategy was the establishment of a whole system for alternative dispute resolution (ADR). After great efforts, the Mediation Act was eventually approved in 2004 (amended in 2006). Rationales for delaying s resistance encountered from some legal operators - there remains

considerable opposition within the judiciary toward alternative dispute resolution methods, based on a fear that legal practitioners will have to surrender some of their professional territory and practical power; s lack of information; s lack of financial and human resources, etc. The same applies to restorative justice practices. There were some catalysts of the process, as well; s Council of Europe recommendations on mediation in penal, civil, family and administrative matters and the relevant EU and UN instruments; 134

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s Regular progress reports of the European Commission on judicial

reform (leading up to Bulgarian accession to the EU); s Support received from some international NGOs Main engine of the process were NGOs and academics, who had already done considerable research work and started pilot projects and training within a legislative vacuum, and in the face of resistance from many legal professionals. Mediation Act (2004) is an enabling, organizational act - it allows mediation practice to enter into many areas of the Bulgarian legal system. According to article 3 mediation shall be performed also in cases envisaged in the Penal Procedure Code (victim-offender mediation). In the Penal Procedure Code 2005, enforced in 2006, Victim - Offender Mediation didn’t find place. Arguments: s high crime rate s society is not ready yet s VOM is new and unknown option etc.

Although the existing legislation does not specifically refer to mediation or any other out-of-court method for settlements between the victim and the offender, it gives an opportunity for the application of these methods. In so called ’complainant’s crimes’ the instituted proceedings shall be discontinued if the victim and the offender have reached a reconciliation. Bulgarian legislation also includes the agreement between the prosecutor and the defence counsel. Current Bulgarian substantive penal law, like all modern legal systems, envisages a number of alternative measures as it seeks to minimize the use of penal repression. They all aim the offender’s complete or partial release from criminal responsibility while at the same time preserving the punishment’s preventative and educational influence. Currently, primary attention is paid to the release of juvenile offenders from criminal responsibility with the substitution of appropriate correctional (educational) measures (measures of public influence), as provided by art. 78 in connection with art. 61 of the Penal Code. These are cases in which the offender has committed a crime that is not very harmful to society. The measures are provided for in details in Juvenile Delinquency Act 1958.

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Some have a restorative character: s apology to the victim s attending the educational programmes and consultation

having a rehabilitative purpose s repairing the damage inflicted, where possible s community service (art. 13(1) i.2, 3, 9 and 10).

However, victim-offender mediation is not provided for. The implementation agencies are Central Commission for Combating Juvenile Delinquency and Local Commissions for Combating Juvenile Delinquency at municipality level.In summary there is a strong tendency towards the enrichment and development of non-penal methods and instruments for combating crime. But genuine restorative justice practices in their modern sense still remain a topic for the future . In 2005-2007 scholars from the South-West University “Neofit Rilski” – Blagoevgrad, the New Bulgarian University – Sofia and the Institute of Conflict Resolution – Sofia, and legal practitioners launched surveys amongst: s criminal justice authorities s victims s offenders s random population

regarding the applicability of VOM in the Bulgarian penal legislation and practice. Herewith are some findings of criminal justice personnel survey: Question 1: Which types of cases are appropriate for resolving through VOM?

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Question 2: When in time can a given case be referred to mediation procedure?

and National Association of mediators as an umbrella organization have been established. s Different research and academic institutions and NGOs offer programs on mediation and training of mediators ( basic and specialized) s Currently we have a pool of around 700 trained mediators s A specialized training for criminal justice professionals and other practitioners working with juveniles was organized in the frameworks of TIN Project .

2. TOOLS IN NETWORK- TIN PROJECT-2007-2009 The full title of the project in the framework of Leonardo da Vinci Programme of the EU is - Tools in Network. An E-Net Approach to Share Mediation Competences. Partners in the project: n Ministry of Justice – Italy, Department of Juvenile Justice (lead partner) n Cras Onlus - Italy n The Psychoanalytic Institute for Social Research (IPRS) - Italy n Christian Youth Village Foundation – CJD Eutin – Germany n Foundation International O’Belen - Spain n Institute of Conflict Resolution – Bulgaria n Association “Riga City Mission”- Latvia n Association for Probation and Mediation in Justice (SPJ)- Czech

Question 3: When in time do you see VOM introduction into the Bulgarian criminal justice system?

Republic

General Objectives

Findings from other surveys correspond, more or less, with the presented results and definitely support introducing of VOM in Bulgaria, emphasizing on its applicability towards juveniles. The results have been discussed widely and have received public support. They have been submitted to the attention of the Ministry of Justice and the Parliament. Follow up steps: s The infrastructure of mediation in Bulgaria was created: s Unified Register of Mediators, mediators associations and centers

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s Support the improvement of skills and competencies of professional

operators in the field of juvenile justice system through the capabilities and services offered by an on-line documentation platform on Restorative Justice. s Use the platform developed by the Italian Department of Juvenile Justice to share informative documents, collect best practices, strategies of intervention, operational tools, fundamental to compare, analyze and define common pathways and policies on the field of Restorative Justice.

Specific Objectives s Develop the on-line platform to the needs of the other partner

countries s Facilitate the possibilities of the partner countries to plan innovative

vocational trainings s Improve the transnational networks between public and private

organisations in the field of Penal mediation thanks to the on-line platform’s possibilities

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I I I

Target groups and potential users s Professional operators and experts working in the field of the Penal

Mediation s Public and private agencies providing careers guidance services and vocational training activities concerning the social workers s Universities and Social Research Centres s Young people graduated in psychology, law, sociology interested in working in the area of penal mediation s Decision makers and managers of policy planning for young people The transfer of methodology s Presentation to the partners of Italian Department of Juvenile Justice

“On-line Platform” implemented in the “In-Contro Project” and setting common criteria to adapt and transfer contents of the on-line platform to partners needs s Analysis and selection of training contents of “on-line platform” to work out a model that includes suitable contents for the needs and desires of users. s On-line training activities (setting and implementation) with cooperative and interactive approach s Evaluation of results of “on-line training activities” to define common features and pathways to achieve basic knowledge, upgrade skills level, share practices and tools about penal mediation To stimulate participation to the training activities and to promote an interactive and cooperative approach to the learning activities, five Yahoo! Groups have been created to support the experimental phase of TIN project: Tinproject_bulgaria_group; Tinproject_germany_group; Tinproject_italy_group; Tinproject_spain_group Evaluation and results s General upgrading of knowledge and skills about Penal Mediation s Common interest to develop the e-learning interactive tools (platform,

forum, chat) as well as concrete helpful work instruments s Powerful instruments to realize vocational training activities and

training on the job pathways for different categories of users s The project has achieved (in the common opinion of the participants)

most of expected results: s The training activities have supported the upgrading of skills and

knowledge of professional operators in different categories and under different work conditions. s The project promoted the e-learning activities as a valid support to continuous improvement of quality of work in the field of penal mediation

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Final outcomes s The on-line platform for education

was translated on all partners national languages s Informative brochure was printed s DVD with presentation of the project and other information was produced

3. Violence in School Training Action-VISTA Project 2003-2006 There was partnership with 6 European countries- UK, Ireland, Belgium, Norway, Spain, Bulgaria. The main aims of this project were to: s develop a European training package on the topic of violence

prevention in the whole school context; s disseminate good practice through training at European, national and

local levels s a substantial

part

was

dedicated

restorative

practices in

schools Objectives for participants s to be familiar with restorative justice (RJ) principles, ideas and

values s to be familiar with contemporary RJ applications in a school setting s to be prepared to promote a restorative climate in school s to consider strategies for the application of RJ models in school

All partners considered Restorative practices in schools as a new developments of RJ. The application of restorative practices in schools has good grounds. Traditional punishments seem to be ineffective in responding behavior problems in schools. For this reason restorative justice models such as mediation, circles and conferencing have been adapted to the school settings.

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VISTA outcomes s A training package for teachers, parents and students was

developed s It was piloted in Norway s It was translated in English, Spanish, German, Flemish and Bulgarian s Now it is in the process of dissemination

We believe TIN and VISTA project met the urgent needs in Bulgaria and will accelerate our preparation for VOM and other restorative practices application, particularly towards juveniles, where they are mostly needed.

â&#x20AC;&#x153;MEDIATION IN CRIMINAL CASES IN FINLANDâ&#x20AC;? Dr. Kauko Aromaa European Institute for Crime Prevention and control, affiliated SLIDE 3 with the United Nations (HEUNI). Helsinki. Finland

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“RESTORATIVE JUVENILE JUSTICE IN FINLAND. GOOD PRACTICES” Ms. Erika Uotila Planning Officer. Department of Criminal Policy. Ministry of Justice. Helsinki. Finland.

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“RESTORATIVE JUVENILE JUSTICE IN PORTUGAL. GOOD PRACTICES” Dª Susana Castela

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Research Institute on Judicial Systems of the National Research Council (IRSIG-CNR, Bologna, Italy)

Dr. Marilena Colamussi

Faculty of Law of the University of Bari and “associated researcher” at IRSIG-CNR

The European Union Council request to member States to introduce Restorative Justice (RJ) practices is in Italy actually fulfilled only in the juvenile criminal justice system by means of probation (messa alla prova)26 and victim-offender mediation (VOM) (mediazione penale). Both practices are aimed at diversion and rehabilitation of young offenders. In Italy RJ practices emerge spontaneously in the first half of the 1990s, as in the majority of European member and non member states (Mestitz & Ghetti, 2005a). They were facilitated by the code of youth criminal procedure of 1988 (DPR 448/1988) which introduced a new non-custodial order for young offenders: probation, which may include VOM and other forms of reparation. Firstly we will briefly sketch the framework of the juvenile criminal justice system in order to illustrate the context in which our two good practices were introduced. Then, we will describe the legal framework within which probation and VOM are adopted. We will also describe our practical experiences in the field regarding probation and VOM, which have represented our main research interest during the last fifteen years. Finally, both practices are evaluated in an attempt to synthesize the principal research findings.

1. The juvenile justice system and the criminal trial The Italian juvenile justice system includes 29 juvenile courts (Tribunali per i minorenni) distributed over the country and an identical number of prosecution offices (Procure della Repubblica per i minorenni). Both are generally located in the same buildings. Frequently the juvenile court social services units are also located in the same buildings.

The role of defense lawyers has been traditionally very marginal: they tend, more often than not, to entrust cases to the public prosecutors and judges, i.e. “juvenile magistrates”27 . The lawyers’ marginal role is also due to their

In Italy the treatment of cases is governed by the principle of mandatory criminal action. The juvenile courts deal with civil, criminal and administrative matters (but not with family matters since separation and divorce are decided in ordinary tribunals), and the interconnections among these measures, provided for by law, are a crucial functional feature of the juvenile courts. Criminal competence is concerned exclusively with crimes committed by offenders aged 14 to 18 (offenders less than 14 cannot be charged), and before charges are made, courts must evaluate whether each offender is responsible and in full possession of the “capacity to understand and consciously act” (capacità di intendere e di volere). Administrative competence is concerned with so-called “social maladjustment” (pericolosità sociale) i.e. juveniles in danger of becoming delinquent. In these cases the court may intervene with supportive and rehabilitative measures such as social service supervision or placement in institutions for children. Civil competence is concerned with the protection of mistreated and neglected minors, mainly without family or with manifestly inadequate or incompetent parents. In these cases the court intervenes with protective measures such as adoptions or by moving the child from his/her family to another family temporarily or permanently (or to institutions for children). So the juvenile criminal court may adopt civil measures in order to help or protect the offender if his/her family is inadequate or physically absent. The Department of Juvenile Justice (DJJ) of the Ministry of Justice coordinates the wide national network of services which support the prosecution and court activities (court social services, youth prisons, etc.). In the criminal trial the decisions are made by panels of a variable number of professional and lay judges sitting in camera. As in other European countries the lay judges are recruited among “experts” in disciplines relevant to juvenile phenomena, such as psychology, criminology, sociology, psychiatry etc.. We may distinguish two different phases of the criminal proceeding: the investigative phase carried out by public prosecutors and subsequently three different judging forums: s judge of the investigative phase (giudice per le indagini preliminari,

g.i.p.), a single career judge; s judge of the preliminary hearing (giudice dell’udienza preliminare,

g.u.p.), a panel composed of three judges, including one career judge and two lay judges; s juvenile criminal court (tribunale minorile penale), composed of four judges, including two career judges and two lay judges.

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lack of knowledge and specialization in juvenile laws and procedures (Mestitz & Colamussi, 2003).

Procedure in the youth court is much less formal than that in adult courts.

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The majority of juvenile criminal cases (around 70%) are dismissed by the judge of the investigative phase and/or decided by the judge of the preliminary hearing, thus only a minority of cases proceed to the criminal court. Moreover very few cases proceed to the second level of jurisdiction in the juvenile section of the court of appeal (sezione minorile di Corte d’Appello). For this reason here we will describe how our two good practices are applied by the judge of the investigative phase and by the judge of the preliminary hearing.

Probation can be ordered during both the preliminary hearing and the trial in court, and even in the appellate court, but in most cases the judge delivers the probation order during the preliminary hearing, because it is mainly considered as a strategy of diversion, a sort of pre-trial settlement of the process (Mestitz & Colamussi, 1997; 2000). Additionally, the probation project needs the youth offender’s agreement and cooperation in order to facilitate the success of the measure. This is based on the idea that when the offender participates in planning the probation project, she/he shows a real willingness to change her/his way of life, becoming the primary actor in the probation process. The probation project can include various activities which are established in detail by the court social services unit with the cooperation of the youth offender. For example: to perform work and/or sports activities, to attend school or training courses, to respect times to leave or return home, to respect prohibitions to go to certain places or to meet friends and peer groups, to carry out voluntary services for the community, etc.

2.Probation 2.1 Legal framework

Unlike other legislations in which probation is a real sentence, Italian probation results in the suspension of the trial until a later time when a sentence will be given. During the time of suspension, the youth offender must participate in projects - prepared by the court social services aimed at rehabilitating her/him and/or guaranteeing a positive outcome of the sentence. Probation can be applied even if during the trial the young offender becomes older than 18. Moreover, it is applicable to any criminal offence, i.e. there is no limitation regarding the most serious offences - such as murder, rape, manslaughter, burglary, theft and even homicide. The seriousness of the crime can determine only the maximum term of the probation project: it can last no longer than one year for misdemeanors and less serious crimes, no longer than three years for crimes punishable by not less than twelve years of imprisonment. The duration of the suspension of the trial changes not only according to the criminal offence but also by taking into account the educational needs of the youth offender. First of all, because probation is a criminal measure, the judge verifies if the youth accused is guilty or not. According to the jurisprudence, the “confession” of the youth offender is required as a proof of guilt, even though this practice is contrary to three fundamental principles: a) the privilege against self-incrimination, b) the presumption of innocence and c) the burden of proof on the prosecutor. Before delivering a probation order, the judge hears the opinion of the public prosecutor, the defense lawyer, the court social workers, the youth offender’s parents (who frequently collaborate in the probation project) and, also, of the victim and offender, especially when the project includes direct mediation. The defense lawyer may also suggest a probation order but she/he does not take any active part during the probation project (Mestitz & Colamussi, 2003). Actually, the final decision about probation is taken by the judge if the personality of the youth offender, the family situation and the social context seem to encourage a positive conclusion of the probation period.

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The youth court social services units are responsible for the probation projects. They must prepare a project of activities for the period of probation, supervise its development and finally refer to the court about the juvenile offender’s behavior and the result of the project. At the end of the period of probation, if the outcome is positive, the judge may dismiss the case because the criminal conduct is considered negligible28. Actually, a successful probation period extinguishes the crime. If the outcome is negative the case follows the normal judicial path29 . The court social services must observe, support and supervise the youth offender’s behavior in the course of the probation project. The local social services (from municipalities, provinces and regions) are requested by law to collaborate with those of the court, but only these latter have the responsibility to report to the judge about the project, also suggesting suspensions or changes if needed. If the youth offender does not respect the dispositions specified in the probation order, the court social services can even suggest the interruption of probation before reaching the fixed term. In most cases youth offenders during probation live at home with their families (especially if the family itself had no previous problems with justice), while those with single parent families rarely receive probation orders (Mestitz & Colamussi, 1997; 2000). Only when the family is deviant or inadequate, or when the youth offender is drug-addicted, is the minor moved into a residential community during probation (ibidem). VOM can be a significant part of the probation project and in fact the only formal way permitted by the legislation to practise mediation in the Italian juvenile justice system is by means of probation. Although judges, having

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suspended the trial by the probation order, can give specific dispositions about restorative activities and reconciliation between victim and offender, as we shall later see VOM is in fact applied more frequently by public prosecutors during the investigative phase.

service itself as “RJ activities”, a definition we cannot share because it totally disregards the needed/essential active role of the victim in the restorative process. These research findings give evidence that the application of probation and RJ practices, and even definitions, change remarkably from one juvenile court to the other.

Our research in two youth courts showed a high variability in the application of probation. In our long-term study on a sample of 190 cases from 19911996 in the Southern youth court of Bari (Mestitz & Colamussi, 1997; 2000), restorative justice (RJ) strategies emerged as part of the probation projects for the large majority of the sample (81.1%). Also direct mediation through victimoffender meetings began to be applied (9.1%). Nevertheless, Table 1 shows that in most cases the mediation was indirect by means of two main practices: symbolic financial compensation to charity and welfare institutions such as churches (51.3%), and writing formal letters of apology to the victim (35.7%). Neither practice seems to contribute effectively to the educational needs of youth offenders, whereas the first attempts of direct mediation - carried out by external mediators of the local mediation service - emerged as a really effective “good practice” (Mestitz & Colamussi, 2000) _ Table 1 – Detail of 154 probation cases including RJ practices adopted by the Youth criminal court in Bari (sample of 190 cases in the period 1991-1996)._

3. Victim-Offender Mediation30 3.1. Legal framework

Although the code of youth criminal procedure does not include a specific provision for VOM, youth public prosecutors and judges use different articles to refer cases to the VOM services. In fact public prosecutors are the main gatekeepers of the mediation process: about 75% of cases are referred by public prosecutors in the investigative phase of the criminal process while only about a quarter of the cases are referred by judges within the framework of probation orders (Mestitz & Ghetti, 2005a)31. Basically VOM is considered a diversionary tool, and for this reason it is mainly applied by public prosecutors at the very beginning of the criminal proceeding. When a crime is reported to the prosecution office the public prosecutor may take one of three actions: i) ask the judge to dismiss the case; ii) refer the case to the judge of preliminary investigation in order to continue the normal judicial process; iii) refer the case to the court social service or to an external mediation service for the mediation process. The judge of the preliminary investigation may then: i) drop the case, ii) make a sentence or suspend it by referring the cases to the court social service or to an external mediation service, iii) send it to the judge of preliminary hearing, who, in turn, may sentence the case or send it to the juvenile court (but this happens very rarely, and only in very serious crimes). As mentioned above, VOM, both direct and indirect, can be included in a probation project. In this case the judge may refer the case to the court social service and/or to an external mediation service with the aims of conciliation, reparation or mediation.

Source: Mestitz and Colamussi (2000: 253). Instead, our recent research on probation in Bologna (Mestitz, 2007) on the universe of youth in probation (205 cases) showed that in the years 19982000-2002 direct or indirect mediation had been applied in only two cases and in only three cases from 2003 to May 2007. Standard probation projects did not include RJ practices but only a few routine activities such as work, training and educational activities. The most effective ones appeared to be the socalled “socially useful activities” (attività socialmente utili) symbolically made in favour of the community. Surprisingly they were defined by the court social

Prosecutors mostly rely on article 9 DPR 448/88 providing for “personality assessment” which entails an investigation of the family and social background of the juvenile offenders. They thus refer the case to the court social services for the purpose of obtaining the investigation as a strategy for initiating the VOM activity. Court social services may autonomously carry out mediation if there are social workers trained as mediators in the service. Otherwise they can refer the case to an external mediation service, if available. Once mediation is concluded with a positive agreement between victim and offender, the case is sent again to the prosecutor who asks the judge to drop the case32. If the

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agreement between victim and offender is not reached, the case follows the normal judicial path.

One additional and important implication of the absence of norms is that it may perpetuate the very limited role exerted by victims in the juvenile penal proceeding.

The VOM services can be involved in various ways in different phases of the proceeding. Sometimes the public prosecutor or the judge refers the cases directly to the mediation service without informing the court social services, other times the court social services itself suggests that the public prosecutor or the judge refer the case to the VOM service, or else directly refer the cases (sent by the magistrates) to the VOM service itself. In sum, the role of youth court social service is highly variable over the territory as it may be connected directly to the external VOM service or not

3.2. Development of VOM in Italy

A Starting in 1995 the development of VOM grew spontaneously in a bottom-up manner, mainly promoted by groups of juvenile magistrates, lay judges and social workers, who played an active role by stimulating and organizing the foundation of new “experimental” mediation services. Initially they had been established within some juvenile courts and/or prosecution offices, but later these services moved outside the courts with funding by local governments. Mediation was mainly implemented in the framework of the criminal trial but was also aimed to address different kinds of out-of-court conflicts, such as parental disputes in divorce and separation, conflicts among students at schools or among neighbours. We conducted the first two empirical studies on VOM in Italy by means of questionnaires. In one study they were administered to mediators (Mestitz, 2004b), in the other to juvenile judges and public prosecutors (Ghetti, 2004). Results showed that some crucial problems had to be faced to extend the use of VOM. We must stress that the application of RJ strategies in Italy in the development of VOM was random and slow though more developed than in other Southern European countries, Spain included (Mestitz, 2008a) with the exception of Catalonia33 . At present VOM is still described as “experimental” and no norms regulate it. No specific legislation on VOM with youth offenders has been passed in the last 15 years by any government regardless of its political tendency. The reason is that the powerful lobby of juvenile magistrates prefers this state of affairs. In fact the absence of norms permits a wide discretionality: those who want to apply VOM do so, whereas those who do not like this strategy can avoid applying it. A debate currently exists between those who advocate the introduction of specific norms providing for VOM - mainly the academy (Patanè, 2004) - and those who do not consider new laws necessary: mainly juvenile magistrates.

Traditionally the victim’s role is marginal to the point of non-existence in the juvenile jurisdiction, where the offenders’ “educational needs” always prevail. This results in a series of exceptions and guarantees; for example, penal trials involving juveniles must be held behind “closed doors” (no public is admitted in the court room); the victim’s civil action aimed at obtaining compensation for damages cannot be brought in juvenile criminal proceedings. This provision strongly limits the victim’s participation in the juvenile trial: obviously if there is no possible way to seek compensation for damages, there would be little interest in participating. In addition to the well-known difficulties encountered when attempting to gain the victim’s assent to the mediation, the negligible role of victims in Italy may further discourage their participation. One final implication of the absence of norms is the lack of specific codes or standards of ethics regarding the mediation process as well as the recruitment, training and ethical standards of mediators.

3.3. The victim-offender mediation services

Our comparative overview of 15 EU nations34 showed that basically three categories of services offer VOM activities: public services (national and/or local), private NGOs (including volunteers) and mixed systems of public and private services. The majority of nations, Italy included, rely on mixed systems including both court and local social services as well as private and/or voluntary NGOs. As indicated above, in Italy VOM can be applied by court social services (units directed by the DJJ of the Ministry of Justice) and/ or by mediation public services mainly funded by one or more of the local governments: municipality, province or region. Mediators and social workers carry out the mediation activity through 3 main phases: s The preliminary phase includes referral procedure, information

collection, contacts with and preparation of the parties, evaluation of the case to be mediated. If the case is suitable to be mediated (and victim and offender agree to meet), the meeting between the victim and the offender is organized. s Mediation meeting/s and agreement are the central phase. It can include one or more meetings where the parties, generally assisted by two or more mediators, search for a common agreement. Sometimes it concludes by writing a formal agreement. s The concluding phase includes one or more of the following activities: case evaluation by mediators, preparation of a final report

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to be sent to the authority who referred the case (public prosecutor or judge), and sometimes a follow-up on the implementation of the mediation agreement.

our research findings (Fig. 1) showed a statistically significant difference in job satisfaction between mediators who knew the sentences of the cases and those who did not know (Mestitz & Ghetti, 2002).

Normally, the mediation meetings include 4 participants: the victim, the offender and two mediators because in Italy the common practice is co-mediation. According to a survey, in more than half the cases there are two mediators, in a fourth of the cases there are three, and the duration of each meeting is on average two hours (Mastropasqua & Ciuffo, 2004). Sometimes the VOM is carried out in only one meeting, more frequently 2-3 or more are needed. All mediation services conduct only face-to-face mediation between the victims of the crime and juvenile offenders because no family group conferencing, sentencing circles or other similar RJ strategies have thus far been attempted in Italy. Remarkably, the attempt to practice mediation fails on average in 30% of cases. There is, however, a significant variability in this percentage among different VOM services. _Figure 1 - Mediators’ job satisfaction according to whether or not the information about the sentence was made available to them (1 = not satisfied at all and 5 = extremely satisfied)._

3.4. Mediators

The activity of mediation is mainly carried out by part-time mediators because most of them also engage in other professional activities and work in the VOM services as volunteers. Mediators are recruited on a voluntary basis among social workers, lay judges, psychologists, sociologists etc. and procedures have not yet been formalized at a national level. Thus, those who want to become mediators simply apply at a mediation service before or after a period of on-the-job training under the supervision of more experienced mediators. Our research shows that in fact the vast majority of mediators received formal training before the beginning of their mediation activity by means of co-mediation. All those who did not, participated in training activities once they began working at the VOM services. The duration of training may vary considerably but the mean training duration was 315 hours, which is much longer than in other European nations where it is mostly concentrated in a short period from 1 to 6 days. Only in Austria the training of mediators is the longest, lasting 4 years, but after the first year newcomers may work full-time under supervision. The most widely represented theoretical model of mediation is that proposed by Jacqueline Morineau (1998) from the Centre de Médiation et de Formation à la Médiation of Paris, because almost all Italian mediators received their training directly from Morineau and/or by those who previously were trained by Morineau (Mestitz & Ghetti, 2005a). There exists some variability in the training procedures probably due to the variable financial resources allocated for training, to the lack of a clear definition of the profession of mediator as well as to the lack of a national training curriculum. Nevertheless, each mediation service attempts to guarantee the best possible training in accord with the opinions and expectations of the mediation group. It must be stressed that although training procedures are quite heterogeneous across services, they appear highly homogeneous in each mediation service (Mestitz, 2004b).

4. Evaluation of Italian RJ good practices After the mediation meetings are performed, the mediation service communicates the outcome to the judicial authority, but there is no formal communication from judicial authorities back to mediation services once the case is sentenced. In other words, there is no official channel through which mediators are informed of the judicial outcome of the case, or of the use the judge made of the result of mediation. Indeed this seems a problem because

4.1.Probation From our research in a Southern youth court it emerged that probation is frequently applied to first-time offenders (Mestitz & Colamussi, 2000).

The same result emerged from a study in a Northern youth court over the universe of cases on probation in a period of five years 1998-2002 (Angelini &

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Ghetti, 2007; Mestitz, 2007). Moreover we observed that in the 2-3 years after the conclusion of probation the great majority of offenders did not reoffend (169 subjects, 82.4%). The minority (8.8%) who reoffended seem to repeat the same crimes: frequently thefts and drug use/trafficking (Mestitz, 2007). Later, we investigated the recidivism rate in a sample of juvenile offenders 7 years after probation by using judicial data. Our findings show that probation as well as RJ practices produce positive long term effects by reducing both recidivism and the transition from juvenile delinquency to adult offending (Mestitz & Colamussi, in press). Paradoxically, probation seem to give better results when young offenders were perpetrators of serious crimes. This seems to happen both because serious crimes are often the first and only crime committed by young offenders and because of the emphasis of the probation process on personal responsibility rather than punishment. Both our studies show that a positive conclusion of probation is connected with low reoffending, thus probation appears not only as a good practice but also as a valid educational tool. The success of probation in reducing recidivism among youth offenders encourages the application of probation also within the adult criminal justice system.

Lectures Presented at the Transnacional Forum: Good Practices of Restorative Juvenile Justice

4.2. Victim-Offender Mediation

A survey conducted by the research unit of the DJJ (Mastropasqua & Ciuffo, 2004) examined 321 cases of youth offenders who underwent mediation in 2002. Some of the results are of interest. First, the majority of offenders were male (81%)35 and aged 16-17 (49.5%). Furthermore, the majority were Italian (97%), a figure which does not correspond to the national data on offences committed by minors which indicate that 22% of minors referred to the youth prosecution offices in 2002 were foreign. As regards the victims, not surprisingly they appear to be less willing to undergo VOM when the offences are more severe. Moreover there was a high percentage of cases (59%) for which mediation was not carried out and there is an average time lag of about one year (380 days) between the occurrence of the crime and the mediation. The long time interval occurring between the crime and the mediation confirm what we observed above for probation. _Figure 2 â&#x20AC;&#x201C; Crimes committed by youth offenders referred to victim-offender mediation (321 juveniles in the first semester of 2002)._

The most critical element which emerged in both studies was the very long time needed in Italy to sentence the case. This is particularly serious because for adolescents the correctional objective can be reached only when there is a short time interval between the deviant action and the reaction of the institutions. In the study on the Southern juvenile court the mean time needed between the crime and the decision on probation by the judge of the preliminary hearing was on average 9 months, and the final sentence was given 2 months after the conclusion of the probation (by the same judge). Instead, in the Northern juvenile court decisions about probation were made on average 15 months after the crime and the concluding sentence was given 5 months later. Source: Mestitzâ&#x20AC;&#x2122;s elaboration of data presented by Mastropasqua & Ciuffo (2004: 125).

Evidently the principle of a fair trial within reasonable time established by article 6 of the European Convention of Human Rights is completely disregarded by Italian courts not only in ordinary courts but even in the youth ones where short times are crucial. The long time interval occurring between the crime and the sentence may be surprising only for non-Italian readers. For a number of years, Italy set the record of condemnations by the European Court of Human Rights for the unacceptable delays with which courts sentence civil and criminal cases.

One further interesting finding was that the majority of young offenders (64%) committed crimes against persons, far fewer (30%) against property (Fig. 2). Considering that in Italy, as elsewhere, the majority of juveniles commit crimes against property, these findings show that magistrates select the offenders to be referred to VOM on the basis of their crimes and they clearly prefer those who commit crimes against persons.

In conclusion, if probation appears a really good practice in limiting reoffending in fact the long judicial times in Italian youth courts do significantly lessen its effectiveness.

The over-representation of offences against persons is a significant indicator of the pre-selection made by juvenile public prosecutors and judges: in choosing cases for referrals to VOM services, offences committed within a pre-existing

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social relationship between victim and offender were strongly privileged (Ghetti, 2004). If we compare the two above-mentioned categories of crimes with the results of mediation, a very interesting phenomenon emerges: only 20% of crimes against persons conclude the mediation with an agreement, while 71% of those against property conclude positively. In other terms VOM is more successful in cases where crimes against property have been perpetrated, yet cases involving crimes against persons are preferred by magistrates for mediation.

local governments, i.e., municipality (city administration), province, and region. Unfortunately these sources are not mutually exclusive as most services rely on multiple sources of funding (Mestitz, 2004b).

The phenomenon shows that magistrates, mediators and social workers totally disregard results, making their choice on the basis of two evident shared beliefs/ideologies: a) the victim must be a person (thus victims as public or private groups, societies etc. are totally disregarded); b) victim and offender must have a previous relationship, so that the mediation can allow them to overcome the conflict generated by the crime. The mediation path is useful for the offender in many ways: to understand the seriousness of the harm produced, to develop feelings of guilt, remorse and sense of responsibility, to satisfy the wish to repair directly and immediately the wrong action, to re-establish the equilibrium inside the conflict generated by the crime. The direct and immediate restorative action can also guarantee the victim’s satisfaction, thus becoming the leading actor of a conflict taken away from the State and the judicial system (too often slow and not interested in personal feelings and events). Research has documented victims’ perceived advantages and satisfaction in participating in VOM particularly when direct meetings are involved (Umbreit, Coates & Vos, 2000; 2001). The mediation allows the victim to obtain a more immediate compensation in the relationship established – directly or indirectly – with the offender, as well as to re-establish his or her own dignity, particularly in the youth criminal system where a victim’s civil action for obtaining compensation for damages cannot be brought. More generally, the restorative justice strategies help to reduce the work-load of youth courts by diverting the minor from the criminal justice system. At the same time this is useful to the offender in order to continue her/his cognitive and social development. In other words by means of restorative strategies the State prefers to rehabilitate and save the minor, avoiding punishment. Ultimately this choice represents an advantage both to the society and to the judicial system. If we can say that VOM represents a good and effective practice with youth offenders, we must stress that it is guided by beliefs and ideologies governing the choice of youth offenders, by the lack of a specific legislation and a central coordination (Mestitz, 2008b) and by a number of financial difficulties. In fact, the Ministry of Justice did not and do not provide monetary support for VOM activities and the main sources of funding for the mediation services are the

Local governments periodically allocate funding for the activities planned at the mediation services (e.g., administrative personnel, offices, phone, etc.), depending upon the level of priority VOM holds with respect to the local public policies. So the central problem is the lack of certainty regarding the continuation of funding and funding policies. This uncertainty prevents systematic planning of VOM services and highly reduces the motivation of the part-time personnel involved. So far, the prototypical framework to found new VOM groups has been the “letters of intent”, special agreements signed by juvenile courts and prosecution offices with other institutions in order to provide offices, funds and personnel to allow mediation services to function. Generally, these formal documents are signed by one or more of the three local governmental bodies (municipality, province or region), by the youth court and prosecution office, by court social services, by the interregional organizational units of the DJJ, and sometimes by the local social services as well. In this way, the VOM services have been provided with offices, means and employees from a variety of institutions or administrations who become part-time mediators at the disposal of the VOM services. At present there are about 20 services and/or groups offering VOM randomly distributed over the territory: twelve external VOM services and eight VOM groups operating inside the court social services. As a result, currently only nine juvenile courts out of the total 29 cannot apply VOM. Unfortunately distribution of these services on the territory is very uneven, in some places excellent, while in other places totally lacking, as in Rome and Naples, two of the biggest Italian youth courts. This is due both to the spontaneous nature of the development of VOM groups and to the lack of intervention on the part of a central institution such as the DJJ. Thus our data cannot be updated as new services are frequently founded while others terminate their activity. Although scholars often emphasize the importance of evaluation and followup programs, there have been very few attempts to evaluate how VOM has been performed in Italy, and this evaluation is strictly limited to documenting the extent of VOM practice, not to assessing whether VOM actually works. Our research on the organization and functioning of VOM showed the activity of eight independent mediation services working in the early 2000s as well as the juvenile magistrates’ opinions (Mestitz, 2004a, 2004b; Mestitz & Ghetti, 2005b). It permitted us to unravel the difficult relationship between mediators on one hand and judicial authorities and court social services on the other.

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In particular the most problematic issues according to mediators were: the limited relationships and coordination with judicial authorities and/or social services and the difficulties in involving victims/offenders. Moreover a common complaint was the lack of knowledge of the sentence of the case (see above Fig. 1). Additionally, mediators demanded more information on the following aspects of the case: 1) a description of the crime committed by the defendant, and 2) a description of the whole history of the judicial proceeding. One final important concern pointed out by mediators stressed the limited number of referrals to VOM made by juvenile magistrates and social workers.

Moreover, the lesson we learned from the Italian experience in introducing our two good practices are basically the necessity i) to utilize a pragmatic approach focusing on effectiveness with respect to the objectives, rather than on the basis of theories and ideologies; ii) to organize and coordinate the different actions and initiatives at a central level (by a department of the Ministry of Justice or by another institution); iii) to widen participation as much as possible to all core groups who then must take actions for implementing the new good practices.

5. Concluding remarks Our research has empirically shown that probation and VOM are our best restorative good practices, but they must certainly be improved. In our experience several aspects of the Italian experience are noteworthy: i) the lack of specific legislation concerning VOM; ii) the scarcity of funding or, in any case, highly variable and not guaranteed funding; iii) the lack of central coordination of VOM services by the Ministry of Justice; iv) marginal implementation of probation and VOM; v) beliefs/ideologies shared by social workers and juvenile magistrates guiding the application of probation and RJ practices; vi) the lack of systematic follow-up and evaluation procedures. On a positive and optimistic note, we may point out that even if RJ good practices in altering the Italian juvenile justice landscape are still marginal, it does seem that they have produced a cultural change in the Italian juvenile justice system which is now more oriented toward RJ. At the same time, we cannot be silent on the other side of the coin regarding the implementation of these practices, focusing on beliefs, values and principles rather than on empirical data concerned with results and the effectiveness of justice. In addition, too many aspects of the process have been left to chance: diffusion through imitation from one actor to another, lack of planning in establishing new mediation groups, suggestions by opinion leaders, professional press and associations. Maybe our good practices can be replicated in other European countries, but certainly they cannot be simply copied, as such practices must be rooted in the existing judicial institutions, legal traditions, historical and cultural backgrounds.

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References n L. Angelini & S. Ghetti (2007), Messa alla prova e sistema giudiziario

minorile:risultati dell’indagine sul campo, in A. Mestitz (ed.), Messa alla prova: tra innovazione e routine, Roma: Carocci, pp. 40-73 n P. Casanovas, L. Diaz, J. Magre, M. Poblet (eds) (2009), Materials del Libre Blanc de la Mediaciò a Catalunya, 2 vol., Generalitat de Calatunya, Departament de Justicia, Centre d’Estudis Juridics i Formaciò Especialitzada, Barcelona n P.Casanovas, N. Galera, M. Poblet (2009), Simposio sobre Tribunales y Mediaciòn, 18-19 junio 2009 CosmoCaixa Barcelona, GEMME, Generalitat de Calatunya, Departament de Justicia, Institut Européenne d’Administration Publique, IDT Universitat Autonoma de Barcelona, n S. Ghetti (2004), Cosa pensano i magistrati minorili della mediazione penale?, in A. Mestitz (a cura di), Mediazione penale: chi, dove, come e quando, Roma: Carocci, pp. 89-109 n S. Ghetti & A. Mestitz (2007), Victim-Offender Mediation with juvenile offenders, in B. Cutler (ed.), Encyclopedia of Psychology and Law, vol. 2, Thousand Oaks, CA: Sage, pp. 837-840 n J. Martin Barberan (2005), Juvenile penal mediation in Spain, the experience in Catalonia, in A. Mestitz, S. Ghetti (eds), Victim-Offender Mediation with Youth Offenders in Europe. An overview and comparison of 15 countries, Dordrecht: Springer, pp.347-367 n I. Mastropasqua & E. Ciuffo (2004), L’esperienza della mediazione penale nei servizi della Giustizia Minorile. Indagine su un anno di attività, in A. Mestitz (a cura di), Mediazione penale: chi, dove, come e quando, Roma: Carocci, pp. 111-134 n A. Mestitz (a cura di) (2004a), Mediazione penale: chi, dove, come e quando, Roma: Carocci n A. Mestitz (2004b), I centri locali per la mediazione penale, in A. Mestitz (a cura di), Mediazione penale: chi, dove, come e quando, Roma: Carocci, pp. 45-88 n A. Mestitz (a cura di) (2007) Messa alla prova: tra innovazione e routine, Roma: Carocci n A. Mestitz (2008a), Agis project for the development of Restorative Justice in Southern Europe: some points on Italy, Newsletter of the European Forum for Restorative Justice, vol. 9, n. 1, pp. 6-8 n A. Mestitz (2008b), Organisational features of victim-offender mediation with youth offenders in Europe, British Journal of Community Justice, vol. 6, n. 2, pp. 29-42 n A. Mestitz & M. Colamussi (1997), Processo penale minorile: l’irrilevanza del fatto e la messa alla prova, Working papers IRSIG-CNR, n. 8, Bologna: Lo Scarabeo n A. Mestitz & M. Colamussi (2000), Messa alla prova e restorative justice, Minori giustizia, 2, pp. 223-288 n A. Mestitz & M. Colamussi (2003), Il difensore per i minorenni, Roma: Carocci n A. Mestitz & M. Colamussi (in press), Effetti a lungo termine della messa alla prova. Risultati preliminari di ricerca, in A. Curci e G. Gulotta (a cura di) La psicologia forense in azione, Milano: Giuffré n A. Mestitz & S. Ghetti (2002), Juvenile magistrates and Victim-Offender Mediation centres: the communication system, 2nd Conference of the European Forum for Restorative Justice (Oostende, 10-12 Oct. 2002); http:\\euforumrj.org/readingroom/ Oostendeconf.pdf n A. Mestitz & S. Ghetti (2005a), Victim-offender mediation and youth offenders: the Italian experience, in A. Mestitz, S. Ghetti (eds), Victim-Offender Mediation with Youth Offenders in Europe. An overview and comparison of 15 countries, Dordrecht: Springer, pp. 321-345 n A. Mestitz & S. Ghetti (eds) (2005b), Victim-Offender Mediation with Youth Offenders in Europe. An overview and comparison of 15 countries, Dordrecht: Springer n J. Morineau (1998), L’esprit de la médiation, Ramonville Saint-Agne: Erès trajets

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n V. Patanè (2004), Ambiti di attuazione di una giustizia conciliativa alternativa a quella penale: la mediazione, in A. Mestitz (a cura di), Mediazione penale: chi, dove, come e quando, Roma: Carocci, pp. 19-43 n M.S. Umbreit, R.B. Coates & B. Vos (2000), Victim impact of meeting with young offenders, in A. Morris & G. Maxwell (eds), Restorative Justice for juveniles, Oxford: Hart Publishing, pp. 121-143 n M.S. Umbreit, R.B. Coates & B. Vos (2001), The impact of victim-offender mediation: two decades of research, Federal Probation, 65, pp. 29-35. l

Article 28 DPR 448/1988 (code of youth criminal procedure). This term includes both roles (prosecutors and judges), who, as in France, are recruited together, share the same career and can move from one position to the other 28 According to article 27 DPR 448/88 the case is dismissed when the crime is negligible. 29 Article 29 DPR 448/88 30 For a synthetic description of victim-offender mediation with juvenile offenders see Ghetti & Mestitz (2007). 31 Remarkably three independent studies converge on the finding that public prosecutors refer the large majority of cases during the investigative phase of the proceeding (Mestitz, 2004a): according to the directors of mediation services 74% of cases are referred by public prosecutors (Mestitz, 2004b); according to court social workers and mediators 73% of cases are referred by public prosecutors (Mastropasqua & Ciuffo, 2004); according to magistrates’ perceptions, public prosecutors deal with twice as many cases as judges (Ghetti, 2004). 32 Prosecutors cannot dismiss the cases but they must ask the judge to do so. 33 On the development of mediation in Catalonia see: Martin Barberan (2005); Casanovas, Diaz, Magre, Poblet (2009); Casanovas, Galera, Poblet (2009). 34 EU Grotius II Criminal Programme (project 2002/GRP/029): Victim-Offender Mediation: organisation and practice in the juvenile justice systems, promoted and coordinated by A. Mestitz lasted from 2002 to 2004 and aimed to compare the organisation and management of VOM in 15 European countries (14 EU and Norway). Results were edited by Mestitz & Ghetti (2005b). 35 This result does not seem to imply a gender bias in referrals, but rather it reflects the general prevalence of males over females in the juvenile offenders population. 26 27

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Restorative Justice in the Recommendations of the European Council • R (83)7 of 23 June 1983 recommends the Governments of Member States to promote measures to facilitate compensation to the victim by the offender, for instance by providing such an obligation as an alternative to imprisonment.. • R (85)11 of 28 June 1985 on the position of the victim in the framework of criminal law and procedure recommends the governments of member states to review their legislation and practice in accordance with the guidelines included in this text, that give a wide margin to reparation and also recommends to examine the possible advantages of mediation and conciliation schemes. • R(87)20 recommends to ensure that interventions in respect of juvenile delinquents are sought preferably in the minors’ natural environment engaging the community. • R (87)21 of 17 September 1987, of the Commitee of Ministers of the Council of Europe on assistance to victims and the prevention of victimisation points to a specific set of measures to assist them, such as encouraging experiments (whether on a national or local basis) in mediation between the offender and his victim. • R (99)19, concerning mediation in penal matters defines it as any process whereby the victim and the offender are enabled, if they freely consent, to participate actively in the resolution of matters arising from the crime through the help of an impartial third party (mediator). This recommendation establishes the legal basis, in addition to the principles and the article 6 says: “Legislation should facilitate mediation in penal matters.” Therefore, recommends the Governments of Member States to consider, in their legislations and internal practices, the principles set out here when developing mediation in penal matters in a progressive way. • R (2006)8 on assistance to crime victims recommends the Governments of Member States to take into account the potential benefits of mediation for victims and the possibilities between the victims and offenders, thus fulfilling the provisions of the R (99) 19. l

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ANNEXES

Annexes

Tomás Montero Hernanz (2006): La Justicia Penal Juvenil en España. Editorial Club Universitario. Alicante

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n EU Crime Prevention Network (2005). A Methodology for Assessing Good

Practice Projects and Initiatives. n Kauko Aromaa and Markku Heiskanen (2008). HEUNI Crime and Criminal

Justice Systems in Europe and North America 1995-2004. Helsinki n Theo Gavrielides, (2007). HEUNI Restorative Justice Theory and practice:

Addressing the discrepancy. Helsinki n United Nations. Office on Drugs and Crime, (2006): Handbook on Restorative

Justice Programmes. Criminal Justice handbook series. Vienna. United Nations Office on Drugs and Crime. n Shannon A. Moore (2008). Rights-Based Restorative Practice Evaluation ToolKit. n Joanna Shapland, Anne Atkinson, Helen Atkinson, Becca Chapman, James Dignan, Marie Howes, Jennifer Johnstone, Gwen Robinson and Angela Sorsby (2007). Restorative justice: the views of victims and offenders. Centre for Criminological Research University of Sheffield. n Gemma Buckland, Alex Stevens (2001): European Institute of Social Services. n Anna Mestitz y Simona Ghetti, (2005): Victim - Offender Mediation with Youth Offenders in Europe. Springer. The Netherlands. n Fernando Suanzes Pérez. Fiscal del Tribunal Superior de Justicia de Galicia y Profesor Asociado de Derecho Penal de la Facultad de Derecho de la Universidad de A Coruña. LA JUSTICIA RESTAURATIVA: NORMATIVA ACTUAL EN EL ÁMBITO DE LA JURISDICCIÓN DE MENORES. n Vicente Garrido y otros, (2006): El modelo de la competencia social de la ley de menores. Tirant Murcia n Luis F. Gordillo Santana, (2007): La Justicia Restaurativa y la Mediación Penal. Iustel. Madrid n Tomás Montero Hernanz, (2006): La Justicia Penal Juvenil en España. Editorial Club Universitario. Alicante. n Carlos Vázquez González y Mª Dolores Serrano Tárraga, (2005): Derecho Penal Juvenil. Dykinson. Madrid. n Carlos Vázquez González (2005): Derecho Penal Juvenil Europeo. Dykinson. Madrid n Jaume Funes Artiaga, (1995): Mediación y Justicia Juvenil. Fundació Jaume Callís. Barcelona n Jesús Miguel Hernández Galilea, (2002): El sistema español de Justicia Juvenil. Dykinson. Madrid n Diego Vargas Vargas, (2008): Actas del II Symposium Internacional sobre Justicia Juvenil y del I Congreso Europeo sobre programas de cumplimiento de medidas judiciales para menores. Tomo I. Universidad de Sevilla. Sevilla n Diego Vargas Vargas, (2008): Actas del II Symposium Internacional sobre Justicia Juvenil y del I Congreso Europeo sobre programas de cumplimiento de medidas judiciales para menores. Tomo II. Universidad de Sevilla. Sevilla

n Esther Fernández Molina (2008). Entre la educación y el castigo: Un análisis

de la Justicia de Menores en España. Valencia. Tirant lo Blanch n J.J. Polo Rodríguez y Huélamo Buendía A.J (2000): La nueva ley penal del

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