RECONCILIATION AND VICTIMS’ RIGHTS IN THE CONTINENTAL CRIMINAL PROCEDURE
A. Tünde Barabás
4. The potentials of peacemaking circles – Conducting cases traditionally and using the circle method
The uniqueness of the peacemaking circle as a new restorative method lies in facilitating reconciliation between the parties, ensuring compensation for the victim, as well as promoting the reintegration of the offender. It is particularly distinctive in that it allows the involvement of “victims”, interpreted in a broader sense, in the process of justice, thus fostering reconciliation on community level, the reinforcement of community, as well as the (re)integration of the offender.
The circles allow those involved to share their opinions, express their desires, feelings, fears and acknowledge their mistakes. This method for searching for the truth is completely foreign to traditional justice. None of the elements of the ceremony itself – opening and closing the circle, the talking piece, the facilitator who does not control but may interfere, taking responsibility and joint decision-making – can be found in the justice system today.11
In the course of the PMC project in Hungary12, we focused on four cases that could have ended in the traditional way, i.e. in penal procedure. We examined the advantages/disadvantages of using the peacemaking circle method in these cases. The perpetrators were young adults, minors and children, which highlights how important using the method and involving the community may have with respect to offenders of this age group. The cases included deterioration, theft at a dormitory and battery and depriving a person of personal freedom during a school fight.
10 Belovics, Ervin: A büntetés-végrehajtás ügyészi törvényességi felügyeletének szerepéről.
[About the role of the prosecutor’s legal supervision on execution sentence] Börtönügyi Szemle, 2008/1. 15.
11 Kay Pranis: The Little Book of Circle Processes: A New/Old Approach to Peacemaking.
Intercourse, Good Books, 2005.
12 Supported by the project entitled ‘Peacemaking Circles in Europe’, No. JUST/2010/JPEN/
AG/1609, financed by the Criminal Justice Programme 2010, European Commission, DG Justice, Freedom and Security.
Reconciliation and Victims’ Rights… 179
The acts would have been punishable with imprisonment of a relatively short duration, up to one or two years. For this reason it was possible to use diversion, the tool of which would have been mediation under ordinary circumstances.
The mediator-probation officers, however, sensed the community nature of the cases, i.e. the fact that the acts affected the wider community as well, beyond the direct victims. There is no doubt that the peacemaking circle was a more adequate method to use than traditional penal procedure – the circle method was an excellent choice in the given cases. The parties had the opportunity to speak about their feelings and the harms they suffered, the offenders were given the chance to directly express their regret towards the victims. In each case victims were members of the community: the Down Foundation, dormitory, school, the community of a village, an ethnic group. In one case offenders included juveniles who are not punishable according to the stipulations of section 22, point a) of the Criminal Code, which excludes them from the traditional penal procedures, so they are not in a position to take responsibility for their acts. The two processes enfolding during a peacemaking circle (expression of emotions, regret/apology) provided an opportunity for those involved that would not have been available neither in mediation, nor in traditional penal tools.
The success of the cases has highlighted the manifold and versatile application of the peacemaking circle, as well as the wide scope of cases where its use may be important for resolving local problems as well, beyond interpersonal conflicts.
It has also come up as a question if the method could be suitable in the case of more severe crimes and if “traditional” actors of the justice system (e.g.
prosecutor, judge, policeman) could also be involved.
It seems that the involvement of the representatives of the justice system would be justified if the peacemaking circle method were possible with severe crimes as well. In such cases the penal procedure could go hand in hand with a community-led process and a joint decision could be made about the appropriate punishment with the involvement of representatives of the justice system (prosecutor/judge). This is a very progressive approach, which remains a distant possibility in continental legislations that work on the basis of legality.
5. Conclusion
The results of the survey had also shown the great scope of cases where it might be important to use this method to solve problems, beyond the interpersonal
conflicts, of the local community. In respect to involving additional participants, the involvement of judicial representatives in the peacemaking circles is useful but it might seem problematic at the same time, exactly because of the nature and basic principle of the circles (ensuring the principle of equality). The judicial representative who orders such a procedure to take place, who “returns”
to his initial role in the penal procedure in case of an unsuccessful process, cannot participate as an equal party. Furthermore, it might be problematic for the judicial representative to discover information in the peacemaking circle about further crimes, in connection with which he is obliged to take action ex officio. This type of participation is questionable also because involving the judicial representative as an “equal party” strips the representative of the given body of its very function and this might undermine trust in the appropriate functioning of the justice system. For instance, if during the peacemaking circle the perpetrator and the policeman acting in the case get closer to each other, at the next police action the perpetrator might be unwilling to relinquish this closeness, therefore a stronger measure might be required or the measures might be unsuccessful, causing further conflict.
We experienced already in the course of the pilots that the peacemaking method, involving the broader community, could be particularly suitable for supporting victims, reintegrating offenders, supporting families, strengthening/
renewing the community, handling discrimination, violence and interpersonal conflicts, as well as supporting injured families and communities – tasks that traditional tools/methods are completely unsuitable for.13 This is why it would be important to expand the use of the restorative approach spread and its various methods as widely as possible.
The development – the approaching of continental and Anglo-Saxon legal systems – is likely to help with bridging the gap between the unconditional demand for the implementation of the state’s penal authority and the assertion of victims’ rights. The use of civil law conflict resolution methods in criminal proceedings could lead to a drop in traditional punishments, while it could do more to repair the harm caused by offences, and provide feedback to social and educational policy-makers on the pressures towards crime that need to be addressed.14
13 Pranis op. cit.
14 David J. Cornwell – John J. Blad – Martin Wright (eds.): Civilising Criminal Justice: An International Restorative Agenda for Penal Reform. New York, Oxford University Press, 2014.
Reconciliation and Victims’ Rights… 181
The results reflect clearly the view that directly adopting the Anglo-Saxon method of the peacemaking circles is far from the Hungarian legal system that is based on the principle of legality. The solution in this respect may be to enlarge the circle of participants in mediation, in particular with the representatives of the community.
In conclusion it can be said that the outcomes are indeed promising and with appropriate legal regulations the method could be used even within the penal procedure. In the Hungarian context it can be conceived as a method of direct mediation between the victim and the offender that can be used well in certain cases, but it allows for a wider range of reparation of injuries with the settlement of the conflict and it also serves preventive aims.