Restorative Justice vs. Juvenile Justice: The Case of Lithuania

Foto: Carsten Pihl

In Lithuania an issue of implementing the restorative justice model into legal system is raised during the last several years very often, although the steps in making ideas into action are still quite reserved. Today restorative justice in criminal cases is not introduced into Lithuanian juvenile justice system. The closest institute to its’ model of mediation is the institute of victim‘s and offender‘s reconciliation incorporated into the Penal Code of the Republic of Lithuania.

The reconciliation institute (Penal Code Article 38) is foreseen, as a conditional type of remission of criminal liability, imposing the probationary period of one year, if the perpetrator reconciled with the victim. Reconciliation is not possible in the cases of serious and very serious crimes. Also a person, who has committed a criminal offence, may be justified from criminal liability by court only if:

1) he/she admitted having made offence, and

2) has voluntary compensated or eliminated damage done to natural or legal person or has agreed about the compensation or elimination of this damage, and

3) is reconciled with victim or representative of legal person or state institution, and

4) there are reasons to believe that he/she will not commit other criminal deeds.

Pursuant to Article 38 of the Penal Code, on the grounds under discussion a person cannot be released from criminal liability if he/she has been released from criminal liability in the same way earlier, if less than four years have passed from the day of reconciliation to accomplishment of new offence.

It could be said that reconciliation is applied quite often. At the pre-trial stage 3937 criminal procedures were terminated in 2008 (11,5 % from all 34323 pre-trial investigations, during which the criminal offences were disclosed), 3998 in 2007 (12 % from all 32841 pre-trial investigations), 4363 criminal procedures in 2006 (also 12 % from all 36258 pre-trial investigations).[1] However this institute could not be treated as measure of restorative justice, because the very act of reconciliation usually is very formal and the process is organized by the pre-trial officer, prosecutor or judge, not by the third impartial party. Also it should be mentioned that reconciliation in criminal law has no any peculiarities regarding juvenile offenders; juveniles are bound by the same conditions for remission from the criminal liability when he/she reconciled with the victim. Despite this, the possibility of reconciliation is used quite widely by the officers of juvenile justice too.[2]

Certain features of restorative justice could be mentioned in criminal law of Lithuania in the event of the procedure of private accusation cases. Article 407 of Criminal Procedure Code foresees criminal offences when a procedure is started only in the presence of a complaint of the victim or statement of his legal representative (private accusation cases). When a complaint of victim is received in the court according to the statement of private accusation or his legal representative, victim and (or) his legal representative, and person who is accused of committing criminal offence are summoned to the judge in order to be reconciled. If these persons are reconciled, the process concerning complaint is cancelled. Victim and (or) his legal representative and person accused of committing a criminal offence during reconciliation may make a contract concerning compensation of damage.

Attention, however, should be focused on two different situations: when a measure is imposed by the court and when the parties themselves at their own free will agree on the compensation of material damage, apology, or unpaid work. In addition, victims may be forced to consent to the execution of the measure, and their conflicts will be resolved only ostensibly. Therefore it would worth to achieve that in the case of reconciliation victims should not be forced to reconcile, their conflicts should not be resolved just superficially and without the opportunity for agreement thus reached to be retained in the future. Thus it would be possible to attempt to modify and modernize criminal law, introducing mediation institution. Therefore it is important to analyze the possibilities for applying mediation.

The main political steps to implement the models of restorative justice into Lithuanian legal system are reflected in the National Crime Prevention and Control Programme of 20 March 2003, approved by the Parliament, where the striving of creation of the restorative justice system was indicated, its main aim being to restore the former situation between the subjects affected by a crime – victim, perpetrator, society[3]. First of all, it was thought to create the mediation programme for juvenile offenders and to try it using as a pilot project. But it was not realized due to financial problems. Although the model of restorative justice in Lithuania was analyzed in the study carried out in Law Institute in 2008.[4]

The model of restorative justice in Lithuania concentrates on the mediation as the most popular model of restorative justice in Europe. The purpose of the mediation in criminal cases in Lithuania – to promote peaceful way of resolution the conflicts and provide effective protection of crime victims‘rights, effective compensation of damage from the crime and combining the interests of victims, offenders and society.

There are suggested 3 stages for implementation of mediation in criminal justice system:

1) to start applying the mediation in criminal cases in certain territory (for example: in Vilnius) for certain group of offenders (for example: juvenile). Also to start preparing the new mediators;

2) to extend the application of mediation in criminal cases through all the country regarding all the groups of offenders;

3) to change the appropriate laws (Penal Code, Criminal Procedure Code), to pass a new law of mediation in criminal cases; to expand the net of mediation offices; to create the mechanism of support for mediation in criminal cases.

The changes of Penal Code and Criminal Procedure Code should cover several aspects:

1. At the moment the Criminal Procedure Code of Lithuania has no norms that put on the shoulders of pre-trial officers, prosecutor, judge the obligation to inform the victim and the offender about the possibilities of reconciliation in all stages of procedure. Also there should be basic norms of mediation procedure in the Criminal Procedure Code: initiation of it, further steps.

2. The goal-keeper’s (decisions about diversion and approval of the agreement between the victim and offender) role still should be in the criminal justice officer’s hands.

3. The broader list of criminal offences suitable for mediation in criminal cases should be prepared. Serious and very serious crimes, also crimes, committed by a recidivist should be also possibly appropriate for the mediation.

4. The Penal Code should foresee different possible legal results of successful mediation: remission of criminal liability, mitigating circumstances, the ground for the imposition of a more lenient penalty than provided for by a Law, the ground to impose a non-custodial sentence upon the repeat offender.

The Law on mediation in criminal cases should detail conditions of the mediation in criminal cases, procedure of the mediation, requirement for the mediators, selection of mediators, offices exercising mediation in criminal cases, financing of mediation in criminal cases.

According to the model of restorative justice in Lithuania, the mediator may be a person with a higher university education in the sphere of law, social work, or psychology. They should have a course of training part of which should take place together with other officers of criminal justice. This would ensure future collaboration of criminal justice officers and mediators. All mediators should be included into the List of mediators, administered by the Ministry of Justice.

One of the problematic issues relevant to the implementation of mediation is the relationship between the criminal justice system and mediation process. The source of mediation process is the justice system in criminal cases; it is expedient to consider the mediation programmes as the institution maintaining the criminal justice system, an alternative method for increasing the efficiency of the justice system. In addition, mediation programmes may work only when the accusation is identified, this being dependent on the efficiency of the activity of the police and other procedural institutions. Therefore on the basis of the results of empirical research and the provisions of mediation, mediation should be functionally related to the justice system, whereas mediation programmes should be realized by the social services (institutions not belonging to the criminal justice system). Considering this, the model of restorative justice in Lithuania propose that the mediation in criminal cases may be exercised by the offices of legal aid – they’ve already have the net of the offices all through the country and they are independent from the criminal justice institutions. The other alternative which may be discussed is giving the function of mediation in criminal cases to probation officers.

Very important group of measures implementing mediation in criminal cases – campaign of public relations, information and public discussion: to inform both – the society and the criminal justice officers – about the possibilities and benefits that mediation gives. Representative investigations of various strata of society and victims, conducted in many states, show that society is open to accept new tendencies in the approach to juvenile delinquency. Experts of the science and policy of criminal law are convinced that process of offender and victim reconciliation, the currently real alternative of penal measures, will gain still more importance in the future.

Another space for ideas of restorative justice to make true in Lithuania was the reform of juvenile justice. A coherent reform of juvenile justice in Lithuania has started in 1999 when UNDP/Lithuania, in collaboration with the Government of the Netherlands, has supported Juvenile Justice Programme, providing with assistance to the Government of the Republic of Lithuania in creating a coherent criminal juvenile justice strategy, based on the respect for human rights and emphasizing rehabilitation of juvenile offenders. The Programme encompassed the reform of the system of sanctions for juvenile offenders; the institutional reform of the juvenile justice (police, prosecutor’s office, courts, places of confinement) and establishment of an institution assisting the ex-confined to reintegrate into society; raising awareness on the issues of juvenile justice; as well as stimulation of re-integration of juvenile offenders into society.

Under the first aforementioned Programme (1999 – 2002) analysis of the existing legislation has been carried out and conceptual basis for juvenile justice reform has been developed. The second Programme (2004-2008) paid a great attention for the preparation and consistent, continuous training of juvenile justice officers, working with juvenile offenders; also a stress was put on the rehabilitation system for those who committed a crime being under 18, etc. Although the restorative justice was not an object of interest for these Programmes until 2009, when the draft of the third Juvenile Justice Programme was prepared.

Recently the third Juvenile Justice Programme (2009-2013)[5] is under the process of adoption by the Government. One block of measures in it is related to the mediation in juvenile criminal cases. It covers: the assessment in which municipality the pilot project of mediation between crime victim and juvenile offender will be developed, which institution will provide this service; preparation of mediation process rules; developing the system of preparation of the mediators, creating the methodological material for their training; execution of pilot project of mediation between crime victim and juvenile offender; monitoring and final evaluation of pilot project; introducing the recommendations for further development of mediation in juvenile criminal cases.

Models of restorative justice are more and more often seen as the positive means for solving different problems related to juvenile delinquency in Lithuania. As an example of this the discussion about the age of criminal liability could be reminded[6]. In Lithuania (as in many other countries) the opinion that younger and younger children commit the criminal offences is raised periodically. Also concerns are expressed about the increase of juvenile delinquency and suggestions of more severe penalties and criminal responsibility for younger children are given publicly. The discussions about lowering the age limit of criminal responsibility (or adding more criminal offences to the list of offences with criminal responsibility from 14 years old) are taking place in the society and institutions intensively. Although the last “round-table” discussion (May, 2009) initiated by the Minister of Justice resulted in decisions that lowering of age limit of the criminal responsibility is not the best mean of solving the problem of children and juvenile crime in our situation. Before such step the system of social services should be well-developed in order to have a wide net of services for young offenders and orientation to their needs. At the moment mediation in criminal cases was named as one of the most expected means in the sphere of juvenile delinquency prevention.

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[1] Information Technology and Communications Department under the Ministry of the Interior of the Republic of Lithuania http://www.vrm.lt/fileadmin/Image_Archive/…

[2] The statistics about terminated criminal procedures where offender was a juvenile is not in general statistics about terminated criminal procedures.

[3] Resolution No. IX-1383 “On the Approval of the National Crime Prevention and Control Programme” of 20 March 2003 of the Seimas of the Republic of Lithuania // Official Gazette. 2003. No. 32-1318

[4] It was also a measure of the National Crime prevention and control programme – „to prepare the drafts of restorative justice system in Lithuania concept and its realization plan“// Official Gazette. 2007. No. 90-3575.

[5] Draft of Juvenile Justice Programme 2009-2013 (only in Lithuanian). http://www.tm.lt/dok/ProjektasJUSTICIJA.pdf

[6] The Penal Code of Lithuania provides for two age limits – 14 and 16 years of age. Although Art.13, para.1 of the Code embeds a general rule persons are responsible under the Code only after they have reached 16 years of age, actually the Code establishes criminal responsibility of 14 year old juveniles for all the most serious crimes as well as for all the property offences that juveniles are traditionally most often charged with.