Legal and Practical Perspectives on Victim/Offender Mediation in Austria and Germany1
| Published date | 01 September 2000 |
| DOI | 10.1177/026975800000700406 |
| Date | 01 September 2000 |
| Author | Marianne Löschnig-Gspandl,Michael Kilchling |
International
Review
ofVictimology,
2000,
Vol.
7,
pp.305-332
0269-7580/00$10
© A B
Academic
Publishers
-Printed
in
Great
Britain
LEGAL
AND
PRACTICAL
PERSPECTIVES
ON
VICTIM/OFFENDER
MEDIATION
IN
AUSTRIA
AND
GERMANY
1
MICHAEL
KILCHLING*
and
MARIANNE
LOSCHNIG-GSPANDL
**
•
Max
Planck Institute
for
Foreign
and
International
Criminal
Law,
Guenterstalstr.
73,
D-791
00
Freiburg
i.
Br.,
Germany
••
University
of
Graz,
Institute
for
Criminal
Law,
Criminal
Procedure
and
Criminology,
RESOWI-Zentrum,
Universitaetsstr.
15/B3,
A-8010
Graz,
Austria
ABSTRACT
This
article
compares
the
legal
possibilities
for
reparation
and
victim/offender mediation
(YOM)
in
Austria
and
Germany,
and
their
practical
impact.
The
first
part
focuses
on
the
theoretical
framework
of restorative justice
from
a
victim
perspective.
In
light
of
the
results of empirical -
mostly
victimological-
research,
YOM
is
deemed
to
be
a victim-related
approach
that
provides a
better
position
to
the
victim
than
do
regular
criminal
proceedings.
Furthermore,
the
authors stress
that
Austria
and
Germany
have
made
YOM
available
for
cases
involving
adult
offenders
as
well
as
juveniles.
Thus
YOM
has
become
a
regular
part
of
both
criminal
justice
systems
with
the
effect
that
victims
have
a better
chance
of
profiting
from
these
benefits
than
in
systems
which
limit
YOM
to
cases
involving juvenile
offenders.
The
second
part
gives
a comparative overview of
the
current
provisions
available
to
impose
compensation
and
mediation
in
both
countries.
In
the
third
part,
a
comparison
of existing
official
statistics
is
presented.
From
the
different
rates
of application
the
authors
conclude
that
YOM
is
of
great
practical
relevance
in
Austria
whereas
the
criminal
justice
system
in
Germany
is
still
unwilling
to
apply
YOM
to
a
similar
extent.
INTRODUCTION
Inspired by the victim movement, manifold strategies and concepts concerning
the integration of crime victims into the criminal justice system in a (more)
appropriate way have been discussed for the last two decades. In recent years,
'restorative justice' has become the accepted catch-all term for these efforts (see,
e.g., Braithwaite, 1989; Galaway and Hudson, 1996; Wright, 1996; for critical
remarks Meier, 1998). In particular, victim /offender mediation (VOM), victim
restitution or compensation, and victim participation are key components
of
this
new approach to criminal justice. They reflect various criminological and legal
issues. Referring to criminological theory, the growing attention paid to the
victim lends new meaning to interactive approaches
-Schneider
(1979) once
spoke
of
the victim and offender
as
'partners in crime'. Interaction continues
during prosecution where it is then joined by further 'participants'. Accounting
for the interests
of
all parties involved in criminal events challenges the present
criminal justice system
in
a fundamental
way.
In particular, the participation
of
crime victims disrupts the historic procedural structure
of
criminal justice which
306
is characterized by a bipolar system: prosecution authorities, representing the
State, against the offender (see also Ashworth, 1986). In contrast, strategies that
are more victim oriented, such as victim/offender mediation, are based on a
tripolar model which combines the
private
victim—offender relation as the
hori-
zontal dimension
and the
intervening
offender—State relation as a
vertical dimen-
sion
which links both the victim's and the offender's spheres. The most difficult
aspect of this multiple interaction is that 'victim's interests and system's interests
may differ' (Sessar, 1990; p. 38).
In the case of conflict, the interests of the victim are still quite often sacrificed
to serve the interests of the system (see also Shapland, 1989). Criminal procedure
fails to provide sufficient options, namely options that provide the victim with
enforceable powers. Even quite fundamental statutes such as the UN Declaration
of Basic Principles of Justice for Victims,
2
and the recommendations on the
position of the victim adopted by the Committee of Ministers of the Council of
Europe in 1985,
3
which set forth obligations to prosecution authorities such as
providing relevant information to victims about their options and rights and
giving notification about the final outcome of 'their' personal 'case', are still not
implemented to a satisfactory extent by many of the member states (for com-
parative findings see. Brienen and Hoegen, 1998), at least as far as regular
criminal proceedings are concerned.
VICTIM/OFFENDER MEDIATION - A VICTIM-RELATED APPROACH?
As long as the victim retains an 'outsider' position in routine proceedings and
remains, in the words of Fattah: a 'legal nonentity' (1991; p. 45), the potential
benefits associated with mediative procedures are of particular significance.
From the
victim perspective,
victim/offender mediation and other restorative
instruments have a double impact. On the one hand, they exhibit procedural
features more advantageous to the victim than do traditional criminal proceed-
ings. They offer the victim opportunities for more direct, or more intense
participation
in the judicial or extrajudicial response to his or her personal
`case' . On the other hand, they may help the obtaining of compensatory pay-
ments, directly or indirectly resulting from criminal sanctions, which provides
material advantages
to the victim, doing away with the need to make separate
civil claims. The practice of banning claims for compensation from criminal
trials was the result of an outdated dogmatic segregation of civil and criminal law
which in a structural perspective can be seen as a kind of 'double procedural
harassment' (Schwarzenegger, 1991; p. 66) for the victim. The former aspect can
be referred to as
procedural justice,
the latter as
substantive justice
to victims.
Which of these two aspects may have greater impact on the victim is, however,
still unclear. In particular, the significance
of formal
participation in the criminal
process, such as victim impact statements in the Anglo-American and Australian
practice, is controversial (see, e.g., Ashworth, 1993; Erez, 1994 and further
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