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

1. VICTIM OFFENDER MEDIATION IN FAMILY VIOLENCE CASES: THE GREEK EXPERIENCEby Vasso Artinopoulou, Ass. Prof. of Criminology, Panteion University, Athens European best practices of restorative justice in the criminal procedure 27-29 April 2009HUNGARY, Budapest

2. Topics of discussion • The legal provisions of mediation • The role of the public prosecutor as mediator • The appropriateness of implementing VOM in family violence cases (including gender issues) • The evaluation of VOM in such cases • further suggestions to improve practice Vasso Artinopoulou

3. Restorative justice in Greece • Juveniles (ADR schemes) • Adults (VOM in family violence cases) • Informal practices of VOM before trial (informal mediation by police officers in civil law cases, informal ADR by lawyers, attempts on victim offender reconciliation by judge before trial) • Mediation pilot programs (peer mediation –school mediation, community mediation) Vasso Artinopoulou

4. Legal background • Council of Europe Recommendations (R(99)19, Mediation in penal matters • Resolution 2002/12 Basic principles on the use of restorative justice programs in criminal matters, Economic and Social Council, Resolutions and decisions adopted by the Economic and Social Council and its substantive session of 2002 • European Commission for the Efficiency of Justice (CEPEJ 2007) 13, Guidelines for a better implementation of the existing recommendation concerning mediation in penal matters. Vasso Artinopoulou

5. The Family Violence Law (1) • The new Law on “The Confrontation of intra-family violence” (Law 3500/2006) regulates several issues. It covers several shortcomings such as marital rape, dating violence, and the prohibition of children’s corporal punishment. It also recognizes the vulnerable situation of pregnant women, children and persons with special needs, either as victims or as witnessesof violence (article 6, par.3). • Civil consequences derive from the penal law provisions. Violence constitutes evidence of marriage breakdown, and bad exercise of children and juveniles custody. • The Law also foresees support measures for the victims. Social and psychological support services are provided tothe victims by relevant agencies and organizations (Article 21). The victim’s right to be informed by the police authorities about the progress of the case in the criminal justice system is clearly mentioned. According to the Article 22, if the victim of domestic violence is in financial difficulties, the state funds for his/her legal representation. Vasso Artinopoulou

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

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

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

9. When VOM is provided (art. 11-14 of Law 3500/2006) • ONLY in intimate violence misdemeanors (minors), offences of family violence (not in felonies) • The Public Prosecutor is responsible for carrying out the VOM. • VOM takes place before pressing chargesor before trial. 4. VOM is used as part of the criminal process. Depending on mediation’s results the case is either fully dropped changing the proceedings (alternative/ diversion procedure) or drawn up following the formal criminal procedure. Vasso Artinopoulou

10. Steps of VOM (1) • For the VOM procedure to begin, the consent of boththe victim and the offender is required. • The offender declares his/her willingness: • to stop any further act of victimization, • to attend a therapeutic- counselling program provided by a public health institution, and • to repair/ restore any harm/damage done to the victim of violence (compensation to the victim is also included). Vasso Artinopoulou

11. Steps of VOM (2) 3.If the actions mentioned so far have been done, then the public prosecutor drops the case, does not press any charges and withdraws the case from the records (art.43 par.1 and art. 47 C.C.P.). Thecriminal procedure stops. 4. If any of the previous conditions is violated for a three- years period, the case is broughtback and the criminal procedure continues at the stage before mediation (as if mediation has never happened). 5. No other mediation attempt is permitted for the same offence. Vasso Artinopoulou

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

13. 1. Introducing VOM in the Greek criminal justice system: pre-conditions of implementation • Being aware that legal tradition changes slowly, the penal mediation and other possible changes within the Greek criminal justice system presuppose the dialogue on restorative justice issues and the implementation of pilot programs as well. That was not happening in Greece prior to the legislation, but it was an aftermath of the legislation and the introduction of VOM. • Professionals in the criminal justice system have distinct, clear and specialized roles (including the public prosecutor). They have - mostly - a legal and judicial background. The adoption of restorative justice (as a system of both values and practices) impedesthe flexibility of the criminal justice professionals’ attitudes, ideology and training. • Need for training, awareness campaigns and public dialogue in order to prepare the ground for implementing restorative justice programs. • Need for social and criminological research to explore the “space” for restorative justice changes within the criminal justice system (e.g. complementary or alternative to the criminal justice system). Vasso Artinopoulou

14. A prosecutor is a judicial functionary, with status similar tothat of a judge. He/she represents the Guard of Law. He/she stands at all the stages of the criminal procedure, at the beginning and the end of the criminal process (police, investigation, trial, supervision of sentences) He/she acts under the principle of legality. He/she has no discretionary power to charge a less serious crime than the one for which there is sufficient evidence. Charging the suspect with a less serious crime would be a violation of duty. In the event of VOM in family violence minor offences he acts under the principle of purposeness which is an exception of his/her duties. A mediator is a trained professional, who is familiar with social, psychological disciplines and human sciences. A mediator should be recruited from all sectors of society and should generally possess a good understanding of local cultures and communities. A mediator should be able to demonstrate the sound judgment and inter-personal skills necessary to mediation. He/she normally acts under the Code of Practice and Ethics 2. The prosecutor as mediator: Roles’ diffusion? Vasso Artinopoulou

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

16. Can family violence victimization be restored through VOM? A gender perspective Why a gender perspective? (the grounds of the question) Family violence and abuse lies ingender inequalities and power imbalance. Gender and race discriminations are reflected in domestic violence cases. During the abusiverelationship, the husband/ partner often apologizes and asks for forgiveness, promising that violence will stop and never happenagain. He always says that this is the last time he is violent ..etc. However, research findings verify that the events of family violence escalate and don’t stop until the abused woman leaves home and husband. In Greece, family violence research attests to these findings. Vasso Artinopoulou

17. 3. Can family violence victimization be restored through VOM? A gender perspective (2) Can we apply restorative programs and victim offender mediation to such cases of victimization? Is the ‘trauma of victimization’ restorable through the offender’s forgiveness and reconciliation? Is there any space to restore the violent relationship? These are some of the questions raised bywomen’s rights organizations and NGO’s in Greece concerning the implementation of penal mediation in family violence minor offences. According to their views, the priority is (or must be) the protection of human dignity, victim’s rights and women's rights, as opposed to family, as a social institution. Feminists seem to insist on offender’s punishment bythe criminal justice system in cases of domestic violence and sexual offences, pushing victim offender mediation in the margin of the criminal justice system. Such a debate has been reflected in the press releases and publications of organizationssuch as the National Committee on Human Rights, the Feminist Network, the Greek Department of International Amnesty, the Greek Observatory for Violence against women, etc. Vasso Artinopoulou

18. Family violence, VOM and gender. Skating on thin ice? There is a debate on the appropriateness of Restorative Justice for partner, sexual and family violence, reflecting the gap between restorative justice’s defendersand opponents. Research findings addressed a number of risks of gender discrimination in restorative justice procedures, such as: • victim’s safety, reinforcing abusive behavior and possible re- victimization • gender power imbalance in mediation process (VOM, conferencing cycles) • regressing in making the issue of violence against women from a public issue to a private incident (re-privatization of the issue) Vasso Artinopoulou

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

20. VOM Evaluation in family violence cases Filtering the cases of family violence. How many cases of family violence come into the criminal justice system, which of them are misdemeanors, liable to victim offender mediation, according to law provisions, as mentioned above? Vasso Artinopoulou

21. a. Filtering the cases We are aware of the hidden facets of family violence and women's abuse. The “dark” figure of that type of crime is high. • Findings from A large-scale victimological research conducted in Greece show that only 9.4% of domestic violence incidents are reported to the police. These are mostly cases of physical and/or sexual abuse the victims suffering severe injuries and for which hospital treatment was provided. Minor cases of family violence (misdemeanors) are not usually reported to the police, so the inputs in the criminal justice system are very few and restricted. • Psychological and verbal abuse within the family are not included in the legal definition of family violence, according to Law 3500/06. However, these types of family violence are the most prevalent based on research findings in Greece: 1 out of 2 women of the population sample (56%) reportto have suffered these forms of abuse from her spouse or partner. These cases could have been appropriate for family mediation and/or victim offender mediation, but at the time nosuch opportunity exists. Vasso Artinopoulou

22. b. Problems in implementing VOM • VOM is a new institution and practice in the Greek criminal justice system. An interesting debate started amongstthe judicial and legal circles. Symposia and conferences have been held in Athens addressing the issue of penal mediation. A circular was published from the General Prosecutor of the Supreme Court (Areios Pagos), clarifying the implementation issues arising from the application of the penal mediation to family violence cases. Furthermore, in each region of the country aprosecutor is specifically appointed for penal mediation. • Findings from qualitative research conducted amongst public prosecutors (interviews) show that supporting attitudes are shaped more than reserving ones. • The need for special training on penal mediation is also mentioned as well as the support of the mediation procedure by both experts and mediators. • Addressing the content of the therapeutic/ counseling programs for offenders and the need of accreditation is also emphasized. Vasso Artinopoulou

23. c. Is evaluation and follow up provided? During the three-yearperiod needed for completing the mediation case, ongoing evaluation research has to be provided for the offender, the victim and the family members as well. The impact of the therapeutic/ counseling program on the offender’s behavior, the victim’s recovery and the restoration of the relationship have to be analyzed. Follow up research -after the three-year period- will contribute to further evaluation of mediation. At the time, no evaluation and follow up research is provided. Vasso Artinopoulou

24. Two years after the introduction of penal mediation in family violence minoroffences, what’s the current situation? • Very few cases are reported to the police (high ‘dark’ figure) and fewer proceed to the next stage of criminal investigation. Victims of domestic violence do not trust the (punitive) responses of the criminal justice system. Two years after the law provision, there is no case of family violence reported, appropriate for Victim Offender Mediation, as described in the law. • However, measures for better implementation of the penal mediation have been applied focusing mostly on the prosecutors’ awareness on penal mediation procedures. • A code of practice is needed. Vasso Artinopoulou

25. Conclusion (1) • It was rather ‘risky’ to introduce Victim Offender Mediation (VOM) for the first time in the family violence law of the Greek criminal justice system. The appropriateness of mediation and restorative justice in gender issues, such as family violence, has been questioned even in countries with a long tradition in restorative justice and alternative dispute resolutions programs. Vasso Artinopoulou

26. Conclusion (2) • The compliance with European law is a sine qua non condition for harmonization of legislation in the context of the European integration. However, preparation is needed for major changes to take place and the introduction of new institutions such as penal mediation in the criminal justice system. Adopting restorative justice programs at a National level presupposes research, preparation and information with regards to the possible changes in the criminal justice system and the society as well. Vasso Artinopoulou