Healing without the bars 0

The whole community is the winner in the event of successful conciliation, because the number of prisoners decreases and there is an economy of taxpayers’ funds.

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Foto:Eric Chan

It happened in a village at Easter. Two young men kept throwing pebbles at the window of a girl, trying to attract her attention, when finally they managed to break the large window in the sitting room. Young men got scared and ran away while the festive mood of the family was lost and gone, moreover, the house grew cold. The girl’s mother notified the police. She was very angry and at the beginning she did not even want to see the young men, to say nothing of talking to them; however, when her anger had somewhat subsided the girl’s mother agreed to participate in the conciliation process with the assistance of a mediator.

The conciliation meeting was held in the community centre of the local village – in a neutral setting for all the involved parties. The negotiations were mediated by an officer of the National Probation Service, specifically trained in conflict resolution, holding a neutral position and preserving confidentiality. To ensure that the meeting proceeded amicably, the mediator put forward rules that parties involved the conciliation would take turns at expressing themselves, without interrupting and insulting each other. The young men were very sorry for what they had done while the girl’s mother told them that without the window pane the house was cold and they had had to cancel their house party during the holidays. As a result of negotiations parties agreed that the young men would deliver a window pane to the place of the incident and would compensate all the installation costs. The young men did not forget to apologize to the girl’s mother for the incident while the girl’s mother advised them to think of some other way to showing their attention to the girl.

Conciliation between parties involved had been reached and the criminal proceedings initiated by the police against the young people for the breaking of the window pane were closed. The conciliation process was speedy, the conflict was successfully resolved and all parties were satisfied.

Healing, conciliation, consolation

The conciliation process is not only a formal signature of an agreement, but upon its conclusion both parties are the winners as they themselves reach a fair and mutually acceptable solution, retaining neutral relations. Conciliation has at its basis the approach of restorative justice, which is applied in the world as a way to minimize or eliminate the harm caused by a criminal offence.

The purpose of the Criminal Procedure Law is to enhance the efficiency of the criminal procedure and to simplify the review of criminal cases. To achieve these goals, alongside with other innovations to the criminal procedure, the institute of conciliation was introduced, thus in Latvia as well as in other European countries for the victim and the offender have the option of engaging in a conciliation process that is undertaken by the National Probation Service. Conciliation is possible at all stages of criminal proceedings and in all of its types. Conciliation between the victim and the offender may serve as the basis for the dismissal of criminal proceedings or court may take it into consideration in other cases upon making the decision on punishment.

The approach of restorative justice has several forms; however all of them have some similar aspects. Howard Zehr, an American professor who is considered to be the grandfather of the given approach, formulates restorative justice as follows: „Crime injures not only people but their relations as well. It promotes the achievement of the restoration of justice by involving the victim, the offender as well as the community to seek, by common effort, a solution that stimulates healing, conciliation and consolation”.

Healing, conciliation and consolation are three key words. Healing as a process for the victim where through conversation and the expression of emotions he tries to get out of the role of a victim, while the offender sees the consequences of the offence for the victim. Conciliation as a process that promotes the resolution of human conflicts and conciliation not only with the victim but also with one’s conscience. Consolation as a process where the victim and the offender may return to their families and to the community more at peace with oneself.

Solution – through conversation

Our community has a deeply rooted stereotype that the only way to achieve behaviour that is acceptable for the community, is to apply the repressive approach. In this case, if the needs of the victim are not identified, the person remains with a sense of gloom, anger, shame and guilt. However, in the case of applying restorative justice, the fair solution is sought by the victim and the offender together.

Howard Zehr highlights several basic principles of restorative justice:

  • A different view and reaction to a criminal offence.

  • It means that the criminal offence is not viewed as a violation of an article in the Criminal Procedure Law but rather as a conflict between the victim and the offender. Restorative justice works through the resolution of the specific conflict. It focuses on the consequences of the criminal offence to minimize or to eliminate its impact on future lives of parties involved.

  • It is a voluntary process for both involved parties. The involved parties may waive participation in the conciliation process at any time.

  • An active participation of both involved parties with a dialogue developing between the victim and the offender.

  • The victim may put questions and receive answers from the offender, while the offender may explain the reasons of his/her behaviour.

  • The identification of needs of the victim and the offender.

  • The victim sets his/her demands to the offender for the elimination or minimization of consequences incurred by the criminal offence while the offender discusses his/her possibilities and they take the decision together. With the exception of compensation in fiscal terms, parties may reach an agreement on the performance of some task or anything else.

  • The assumption of liability by the offender.

  • The offender may take a decision himself/herself and accept specific conditions put forward by the victim, but not conditions that are posed by a professional – a lawyer on determining the penalty prescribed by law. It is also an opportunity to apologize and to forgive. Sometimes all the victim expects from the offender is a candid apology and remorse for what has been done. Likewise it is a possibility for retaining neutral relations with the offender.

    The approach of restorative justice is still a new phenomenon in the criminal law in Latvia. It is particularly sad that an attorney takes part in the conciliation process who grins cynically during the conversation between the victim and the offender. Certainly, he has his own job to be done because the client pays him for it. Often during the conversation victims ask: „Why did it have to be me whom you attacked?” Possibly, the offender will be able to explain and there the key role is played by the mastery of the mediator in putting questions that stimulate the dialogue. At present our community starts running out of the human factor and conflict resolution skills; however, it is possible to acquire them in the conciliation process.

    Voluntary mediators in high esteem

    The National Probation Service started to practice conciliation in criminal cases in 2005. At the time only 51 conciliations were requested while in 2009 the number of requested conciliation processes reached 1140. The first mediators were trained by specialists of the National Mediation Service of Norway who have more than 10 years of experience in the area of restorative justice. Conciliation has been particularly successful in respect of minors and Norwegian specialists believe that it is the most effective means for correcting behaviour as it reduces the rate of re-offending.

    Increasingly more people follow innovations in criminal law and take an interest in participation in conciliation. The main condition for the offender is that he/she recognises the basic facts of the criminal offence instead of emphasizing that his/her guilt is still to be proved. Certainly, people may and may not reach conciliation; it depends on their expectations, possibilities and the ability to reach an agreement. However, in the event of successful it is the whole community that is the winner as the number of prisoners declines and thus there is an economy of taxpayers’ funds. Conciliation gives an opportunity to members of the community to change and to improve the quality of their life, to share responsibility in propagating principles of humanism that diminishes indifference among people.

    The experience of Norway shows that it is useful for members of the community to engage in conciliation by becoming voluntary mediators. It means that the community is not indifferent to processes underway and engages in crime prevention, that is why world over the movement of voluntary mediators is well developed in the area of conciliation in particular. In Latvia the movement of volunteers has not yet developed extensive, however, there are people who engage in tidying up the local environment on voluntary basis, assist at hospitals, take care of the elderly and undertake other socially useful tasks without pay, thus there is hope that in future volunteers will be active in providing assistance in the conciliation process in this country as well.

    The National Probation Service has been gradually implementing the model of voluntary mediators in the service, and it has been becoming increasingly more popular. Each candidate and his/her motivation are subject to careful scrutiny. It is not the educational level of the candidate for voluntary mediators that is taken in consideration but features of his/her character that cannot be acquired at any university. The mediator must have good communication skills, capable of understanding one’s own feelings as well as feelings of other people; the person must have logical thinking and creative ability. Likewise it must be taken into account that this particular work is done without pay.

    Without moralising

    In Latvia the implementation of the conciliation process has been easy as each process facilitator has his/her own opinion. Somebody is sceptical, somebody else – ironic, still another is full of incomprehension or reluctance to start something new. According to the data of the Court Administration, one court sitting costs an average of LVL 200. In view of the fact, usually the adjudication of a case requires more than just one court sitting, the conciliation process is a way how to resolve the unpleasant situation sooner and at a lower cost. Every case is highly individual and parties themselves have to decide on participation in the conciliation process.

    In order to promote a more extensive application of the conciliation process between the victim and the offender as well as to discuss topical issues in the area of conciliation, common discussions are required together with process facilitators as well as explanations to the community on the significance of restorative justice.

    This year officers of the National Probation Service have started a survey of victims and offenders who have already participated in the conciliation process. The purpose of the survey is to establish the opinion of the involved parties on the work of the mediator and the conciliation process, and currently the survey has already covered 40 victims and 40 offenders. 85% of victims and 94% of offenders have pointed out that conciliation is a good way of resolving conflicts and 80% of victims and 94% of offenders would advise others also to engage in the conciliation process.

    This year the National Probation Service plans training in cooperation with the National Mediation Service of Norway for probation officers about still another approach of restorative justice – conciliation conferencing, which is attended not only by the victim, the offender and their family members but also by other professionals that may be involved in the correction of the offender’s behaviour and providing support to the victim. This approach is focused on work with minors because if we remain indifferent to teenagers, then their indifference to use will only grow. It is important to remember that the restorative justice approach is not based on moralizing but on the opportunity of choice and the assumption of responsibility.

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