COST concerted research action on restorative justice (victim compensation, victim-offender mediation)

Brussels, 23 May 2002

Draft Memorandum of Understanding for the implementation of a European Concerted Research Action designated as COST Action A21 "Restorative Justice Developments en Europe." European Cooperation in the field of Scientific and Technical Research - COST Secretariat. Brussels, 22 May 2002 (document COST 238/02). Full text

1. The Action will be carried out in accordance with the provisions of document COST 400/01 "Rules and Procedures for Implementing COST Actions", the contents of which the Signatories are fully aware of.

2. The main objective of the Action is to enhance and to deepen knowledge on theoretical and practical aspects of restorative justice in Europe, with a view to supporting implementation strategies in a scientifically sound way.

3. The economic dimension of the activities carried out under the Action has been estimated, on the basis of information available during the planning of the Action, at Euro 7,2 million in 2002 prices.

4. The Memorandum of Understanding will take effect by being signed by at least [five] Signatories.

5. The Memorandum of Understanding will remain in force for a period of 4 years, calculated from the date of the first meeting of the Management Committee, unless the duration of the Action is modified according to the provisions of Chapter 6 of the document referred to in Point 1 above.

TECHNICAL ANNEX

A. BACKGROUND

In the late sixties, the theoretical debate on how the consequences of an offence could be faced and resolved by those immediately involved namely the victim and the offender started in Europe. This was the result of dissatisfaction with the traditional criminal justice system from both victim and offender support side. In that period, concrete proposals for innovative projects were formulated in various European countries. The discussion took place in the same period or even still before the first experiments on victim-offender mediation were set up in Canada and the US in the middle of the 1970s.

In European countries, the present form of victim-offender mediation came into existence in the 1980s. Throughout the years, victim-offender mediation has received great interest not only from criminal justice practitioners and academics, but also from policymakers in charge of defining criminal justice policies. This is reflected in the increasing number of mediation programmes that are being implemented at all levels of the criminal justice system, applied with different types of crimes committed by minors as well as by adults. Not only EU Member States have been experimenting with victim-offender mediation programmes. Some of the Eastern European countries such as Poland, the Czech Republic, Slovenia and Albania have also initiated programmes and even legislation in this field and still others set up pilot programmes or expressed their interest.

It is estimated that more than 900 projects were already in operation in Europe in the year 1998. But also at an international level, support for victim-offender mediation is increasing. A plea for additional research and experiments in victim-offender mediation is one of the proposals the European Commission has explicitly called for in the adoption of its Communication on Crime Victims in the European Union: reflections on Standards and Action.2 Recently, the Council of the European Union also adopted the Council Framework Decision on the standing of victims in criminal proceedings which, in articles 10 and 17, obliges the Member States of the European Union to adapt their legislation in order to promote victim-offender mediation before March 2006.

Within the framework of the Council of Europe, the Recommendation No. R (99) 19 concerning mediation in penal matters, encourages Member States to provide mediation as a voluntarily accepted and confidential service. As a last example, a draft UN Resolution on "The basic principles on the use of Restorative Justice Programmes in Criminal Justice", when officially adopted, should guide the development and operation of restorative justice programmes.

Victim-offender mediation can be regarded as just one method in the broader context of 'restorative justice'. This broader approach is oriented to meet the limitations of the currently prevailing approaches that focus in a too one-sided way on the offender and that are not always very effective.

'Restorative justice' is actually aiming to develop a balanced approach in order to meet the needs of the victim, the offender as well as the community. In general, restorative justice schemes are implemented by promoting a dialogue between those who provoked harm and those affected by its impact; by stimulating wrongdoers to take responsibility for the harm done, to compensate the victim. They also try to find a solution for the problem; by introducing ways to also meet the interests of the community, and to avoid complicated, long lasting, frustrating formal criminal procedures for both partners not leading to satisfying solutions.

The emergence of this broader 'restorative justice' framework in practice and policy goes hand in hand with large theoretical discussions on the conceptualisation and delineation of restorative justice, and the relation with more retributive and rehabilitative models of criminal justice. For Europe, it also brought about the introduction of new techniques to achieve restoration, such as Family Group Conferencing, which is - for the moment - only in operation in the UK and, in an experimental way - in Ireland, the Netherlands, Sweden and Belgium.

Notwithstanding that the number of cases dealt with by victim-offender mediation is increasing steadily in Europe, its potential is not used to the fullest extent possible. Victim-offender mediation as a restorative justice instrument is still being shaped. It is clear that the ideal model of victim-offender mediation does not exist since each scheme should take into account the characteristics of its own institutional and cultural framework. Nevertheless, there is a common interest at the European level to get a better understanding of the best practices. There is a need to look into ways of how to enhance and extend the use of victim-offender mediation and restorative justice schemes.

Learning from experiences in other countries is crucial in this respect. Unfortunately, the bulk of research in the restorative justice area comes from outside Europe. The different socio-legal context does not allow for a simple extrapolation of these research results. For obvious reasons like language, cultural differences, financial and time constraints, research over the borders of the European countries is very scarce. Only a few such initiatives are known. Amongst these there is a publication of the European Forum for Victim-Offender Mediation and Restorative Justice, in which information was brought together for eight countries in a comparative way. There is also a British Home Office research project that describes the legal base, scope, implementation and evaluation of restorative justice programmes for 12 European jurisdictions. A final example that could be mentioned is a study of victim-offender mediation in Austria and Germany.

In order to better understand and improve the restorative justice practices in Europe, research is needed with regard to policy, practice, available research results and legislation. The research carried out in Europe should be compared with research done in other countries, since an overview of restorative research and practices is available within other countries (US, Canada, Australia, New Zealand) but not in Europe as a whole. Eastern European countries merit special attention because of their transitory state. Looking at how restorative justice can be developed and implemented in these states is a particularly interesting area for research.

Practice and policy oriented research in the domain of restorative justice is of an interdisciplinary nature. Most research is done from the perspective of criminal law, criminology, sociology or psychology. More recently, also the ethical dimension has gained importance. In some countries practice came before theory. In other countries pilot programmes were clearly set up based on a theoretical framework. In any case, theoretical research has gone forward strongly in the last few years. It is oriented more specifically on the definition of restorative justice (maximalist versus purist approach), the devising of integral, explanatory and normative models (e.g. reintegrative shaming and 'republican justice' of John Braithwaite). This also includes the place for coercion in restorative justice practices, the applicability of legal and procedural safeguards, the influence of the judicial system (common law versus European continental legal systems), the applicability of restorative justice principles in international conflicts and human right violations.

The issue of victim-offender mediation and other restorative justice practices is an innovating area of research, not being covered explicitly by any other EU research programme. The establishment of a COST Action on restorative justice developments in Europe would be significant in order to provide scientific grounding and support for new and promising practices in the field of criminal justice and to further implement policy decisions in the EU and other European countries.

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