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

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

3Vasso Artinopoulou Restorative justice in Greece Juveniles (ADR schemes) Juveniles (ADR schemes) Adults (VOM in family violence cases) 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) 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) Mediation pilot programs (peer mediation – school mediation, community mediation)

4Vasso Artinopoulou Legal background Council of Europe Recommendations (R(99)19, Mediation in penal matters 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 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. European Commission for the Efficiency of Justice (CEPEJ 2007) 13, Guidelines for a better implementation of the existing recommendation concerning mediation in penal matters.

5Vasso Artinopoulou 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 witnesses of violence (article 6, par.3). 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 witnesses of 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. 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 to the 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. The Law also foresees support measures for the victims. Social and psychological support services are provided to the 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.

6Vasso Artinopoulou 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, who thereafter reports the crime to the public prosecutor and the police. 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, who thereafter 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.

7Vasso Artinopoulou 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. 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.

8Vasso Artinopoulou 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. 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.

9Vasso Artinopoulou When VOM is provided (art of Law 3500/2006) 1. ONLY in intimate violence misdemeanors (minors), offences of family violence (not in felonies) 2. The Public Prosecutor is responsible for carrying out the VOM. 3. VOM takes place before pressing charges or 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.

10Vasso Artinopoulou Steps of VOM (1) 1. For the VOM procedure to begin, the consent of both the victim and the offender is required. 2. The offender declares his/her willingness: a) to stop any further act of victimization, b) to attend a therapeutic- counselling program provided by a public health institution, and c) to repair/ restore any harm/damage done to the victim of violence (compensation to the victim is also included).

11Vasso Artinopoulou 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.). The criminal procedure stops. 4. If any of the previous conditions is violated for a three- years period, the case is brought back 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.

12Vasso Artinopoulou 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:

13Vasso Artinopoulou 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. 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) impedes the flexibility of the criminal justice professionals’ attitudes, ideology and training. 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) impedes the 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). 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).

14Vasso Artinopoulou 2. The prosecutor as mediator: Roles’ diffusion? A prosecutor is a judicial functionary, with status similar to that of a judge. He/she represents the Guard of Law. A prosecutor is a judicial functionary, with status similar to that 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 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. 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. 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

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

16Vasso Artinopoulou Can family violence victimization be restored through VOM? A gender perspective 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 in gender inequalities and power imbalance. Gender and race discriminations are reflected in domestic violence cases. During the abusive relationship, the husband/ partner often apologizes and asks for forgiveness, promising that violence will stop and never happen again. 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.

17Vasso Artinopoulou 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 by women’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 by the 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 organizations such as the National Committee on Human Rights, the Feminist Network, the Greek Department of International Amnesty, the Greek Observatory for Violence against women, etc.

18Vasso Artinopoulou 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 defenders and 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- victim’s safety, reinforcing abusive behavior and possible re- victimization victimization gender power imbalance in mediation process (VOM, conferencing cycles) gender power imbalance in mediation process (VOM, conferencing cycles) regressing in making the issue of violence against women from a regressing in making the issue of violence against women from a public issue to a private incident (re-privatization of the issue) public issue to a private incident (re-privatization of the issue)

19Vasso Artinopoulou 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 and practices within (or in the borders of) the criminal justice system should offer the victims an opportunity to choose the appropriate program/ intervention/ strategy of conflict resolution to meet their own needs. 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 and practices within (or in the borders of) the criminal justice system should offer the victims an opportunity to 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 constitute pseudo-dilemmas rather than real questions.

20Vasso Artinopoulou 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?

21Vasso Artinopoulou 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. 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%) report to 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 no such opportunity exists. 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%) report to 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 no such opportunity exists.

22Vasso Artinopoulou b. Problems in implementing VOM VOM is a new institution and practice in the Greek criminal justice system. An interesting debate started amongst the 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 a prosecutor is specifically appointed for penal mediation. VOM is a new institution and practice in the Greek criminal justice system. An interesting debate started amongst the 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 a prosecutor 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. 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. 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. Addressing the content of the therapeutic/ counseling programs for offenders and the need of accreditation is also emphasized.

23Vasso Artinopoulou c. Is evaluation and follow up provided? During the three-year period 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. During the three-year period 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.

24Vasso Artinopoulou Two years after the introduction of penal mediation in family violence minor offences, what’s the current situation? Two years after the introduction of penal mediation in family violence minor offences, 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. 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. 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. A code of practice is needed.

25Vasso Artinopoulou 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. 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.

26Vasso Artinopoulou 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. 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.