RESTORATIVE JUSTICE

IN UKRAINENataliya Pylypiv

Ukrainian Center for Common Ground

““restorative justicerestorative justice””

Not a concrete method or technique,

but rather approach to questions of crime and punishment.

Quantity of incarcerated per 100 000*

USA – 750-950

Russia - 627

Ukraine – 500

UK - 151

Canada – 120

Germany – 88

Japan – 63

*Data as of 2010   

Sources of restorative justice

Inefficiency of the criminal justice system

The whole system is based on rational.

Crimes are acts that are based on emotions.

1945 – Rehabilitation as the alternative to the model of punishment

Sources of restorative justice(cont.)

1970’s – development of criminology,

victimologyTraditional ways of solving conflicts

Christian values(healing, forgiveness, responsibility, acceptance)

Ideology of Restorative JusticeIdeology of Restorative Justice

Norwegian criminologist Nils Christie in his article “Conflicts as property” analyzing western model of justice,

came to a conclusion that “the state has ‘stolen’ from people opportunity to solve

their conflicts. The main figures of proceedings became state and offender,

instead of victim and offender.”

Restorative justice – a process, with the help of which the parties, involved in the crime jointly decide what to do with its consequences and what conclusions should be made for the future. Tony Marchal

Restorative justice is aimed at satisfying the needs of a victim and providing opportunity to all parties, involved in the process, to actively participate in it.

“Restorative process” stands for any procedure, during which victim, offender,

and other members of community that were influenced by the crime, jointly (with the

help of just and uninterested party) participate in the solution of the problems

that occurred after the offence.

Resolution of Economic and Social Council of UN “About main principles and restorative justice programs in criminal cases” as of 24/07/2002

Restorative justice:Supplements official criminal justice system Involves the parties themselves and community

in the process of resolving the consequences of crime

Facilitates social integration of the offender and decreases the numbers of criminal sentences

Is based on the desire to balance interests of victim and community with a need to integrate offender into society.

Short comparative analysis of traditional and

restorative justice(Howard Zehr)

Criteria Criminal Justice Restorative JusticeUnderstanding of crime

Violation of the law Harm caused to specific people and the relationships between them

Key figures State and offender Offender and victim

Needs of victims Not very well considered

Of primary importance

Character of the process

Adversarial Cooperation

Who makes decisions?

Professional judges Parties of the conflict

To take responsibility means:

Receive the sentence as “cure”

Acknowledge the responsibility, and carry out the voluntarily taking obligations before the other party

Time orientation Past Future

Emotions, relationships

Tense, do not preserve

Emotional release, renewal of relationship

RESTORATIVE JUSTICE

PROGRAMS

Restorative justice programs

1. Victim-offender mediation (VOM)

2. Family conference

3. Circles

Family conferences

Based on the traditions of native inhabitants of New Zealand - maori.

Two key assumptions: (1) Offenders feels stronger shame and own

guilt, when in the process participate people who are significant for them – family members, who support them.

(2) Such support helps to take responsibility for own acts and evokes desire to amend harm caused.

CirclesWide involvement of community

The decisions are made only as a result of discussions and only if consensus is reached

A lot of attention is given to the emotions and unification

Victim – offender mediation

• The main goal of these programs is to organize a meeting between a victim and offender in case that was referred by investigator or judge.

• The offender acknowledged a fact of committing a crime.

These programs appeared at the end of 70’s in the USA and the beginning of 80’s in Europe.

USACanadaGreat BritainScandinavian countries

Today they are successfully functioning and are secured on the level of national legislation in Norway, Finland, UK, Austria, Germany, France.

Develop in Denmark, Sweden, Netherlands, Ireland, Spain, Italy.

At the end of 90’s introduction of these programs started in Eastern Europe, Poland, Ukraine, Russia.

“mediation in criminal cases should be understood as the search of acceptable decision between victim and offender with a help of a competent person, before or during criminal court proceedings.”

Framework decision of Council of Europe as of 15/03/2001 “About the place of victims in criminal proceedings”.

Mediator

• Does the preparation and facilitates the meeting

• Is neutral

• Main goal- help the parties to reach mutual understanding.

Procedure of mediation

• Two parties tell about their version of events• Talk about their feelings and how the crime influences

their lives • Every party has a right to ask questions• Together decide what to do with the consequences of

crime. • If the agreement is reached, the parties sign a mediation

agreement, which most often is a decision about material compensation. (Is not the only option. Sometimes offender may agree to work for the victim, or sometimes victims ask offenders to work for community).

Basic principles of restorative programs

1. Realization of own guilt, taking the responsibility and restitution of caused harm. Victims and their needs should become central in the process, as harm is caused to a specific person.

2. Self determination of parties – desire of people to solve conflict – delegate to people a right to make decisions.

3. Involvement of the nearest social surrounding and representatives of community, which facilitates healing of a victim and helps on offender to redo the caused harmed and change the behavior in the future.

4. Voluntarily participation.

Legal aspects of restorative justice programs implementation

International legislation – key principles UN Convention on the Rights of a Child Guiding UN principles regarding crime

prevention among juveniles (1990)Minimal UN rules regarding juvenile justice

(1985)UN rules regarding protection of juveniles, who

were incarcerated (1990)

International acts that regulate restorative programs

Recommendation № R(99)19, approved by the Council of Europe Committee of Ministers on 15/09/1999.

Framework decision of European Union from 15/03/2001 “About place of victims in the criminal proceedings”.

Resolution of UN Economical and Social Council “About basic principles of restorative justice program in criminal cases” since 24/07/2002.

LEGISLATION IN UKRAINE

Criminal code norms:Criminal code norms:Article 105. Discharge from punishment subject

to compulsory correctional measures.Article 104. Discharge from punishment on

probation.Article 45 & 46. Discharge from criminal liability

in view of effective repentance and Discharge from criminal liability in view of reconciliation of the offender and the victim.

Article 47. Discharge from criminal liability in view of admission by bail. (organization, institution, company)

Practice in UkrainePractice in Ukraine

2002 – the restorative programs started to be used in Ukraine in civic, economic conflicts

Since 2003 – mediation in criminal cases.2004 – 2010 – concept of “restorative practice centers in

communities”;

Cooperation with legal system and local authorities.

Education programs on restorative justice.

15 restorative practice centers in communities15 restorative practice centers in communities

Number of referred cases 2004-2011

Center Period of activity Number of

mediations

Bila Tserkva 2006 – till now 68

Simferopol 2004-2006 80

Krasnogvardijeske 2005- till now 63

Pyryatyn 2008- till now 21

Drohobych 2006 – till now 36

Ivano-Frankivsk 2004 – till now 23

Zhmerynka 2006 – till now 40

Kharkiv 2007- till now 33

Total 2004-2011 364

Cases referred to mediation

44% 44%

12%00%

5%10%15%20%25%30%35%40%45%

Minoroffences

Mediumgrave

offences

Graveoffences

Specialgrave

offences

Others5%

Against property

70%

Bodily inhuries

25%

Who refers cases?

70%

20%

10%

Police

Courts

Others

Effect on offendersEffect on offenders

- mediation allows understanding their act better; comprehend the harm they

have caused to the victim, take responsibility for the committed.

- since 2006 no cases of recidivism or repeated crimes have been revealed among the offenders who participated

in mediation.

Effect on victimsEffect on victims:- restores and heals;

- gives possibility for quick and full material restitution of the harm caused, renewal of

the feelings of security, protection and control over own life.

- all concluded mediation agreements were fulfilled within one month after mediation.

The amount of the material compensation is between 1000-1500 UAH.

“referring a case, I hope that after mediation these children will never come to court again – and that is really what we have observed. Only when all of them (offenders, victims and their support parties) get together to discuss everything, it is possible to talk about real result. After mediation victims are not afraid to walk on the streets, because nobody threatens them; and offenders really understand the committed act. In the court proceedings everybody operates with articles of Criminal and Criminal Process Code – and nobody understands anything. In mediation everything is different”.

Head of the court in Bila Tserkva, Volodymyr Sanin

““Not all children that end up in police are bad. Very Not all children that end up in police are bad. Very often they were pushed by difficult life often they were pushed by difficult life

circumstances…circumstances…That is why it is important to give them second That is why it is important to give them second chancechance. . They understand the committed much They understand the committed much

better if they meet with victims. You will not believe better if they meet with victims. You will not believe it! But after successful mediation is completed – I it! But after successful mediation is completed – I

can sleep calmly, because I know that for this can sleep calmly, because I know that for this offender we have done everything we could to help offender we have done everything we could to help

him improvehim improve".".

Investigator of juvenile crime police in Krasnogvardijsk,,Heraschenko EugeneHeraschenko Eugene

“After restorative programs we did not have any repeated crimes. Even those who seemed hopeless now are studying or working”.

Head of Juvenile Crime police,Zhmerynka, Sychyk Andriy

“Mediation is not easy. I and my son felt so ashamed and rather uncomfortable... But after

mediation my son totally changed! As if someone just replaced him! His studies at school improved, he does not have behavioral problems anymore, he became more attentive to me and others, he

even started to help me at home.” Mother of offender

Local authorities' representatives are confident that not only it is the way to react to the offences and

prevent them, but also the possibility to from active community that is able to unite for solving any

problems.

J’atends by Michael T. Weiss

THANK YOU FOR YOUR

ATTENTION!

QUESTIONS?

COMMENTS?

REFLECTIONS?Free. Michael T. Weiss

Contact information 18, Klovskyi Uzviz, Kyiv 01021

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