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I International conference on restorative justice and victim

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Burgos, Spain

Burgos, Spain


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  • 1. FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUTRESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS )I INTERNATIONAL CONFERENCE ON RESTORATIVE JUSTICE ANDVICTIM-OFFENDER MEDIATION: THEORETICAL ASPECTS ANDPRACTICAL IMPLICATIONS. 4 and 5 of March. Assembly Hall. Faculty ofLaw. BurgosThe First International Conference on Restorative Justice and Victim-offendermediation was held in Burgos on March, organized by the Victim-offenderMediation Service in Castilla y León (Burgos) with the collaboration of theUniversity of Burgos, the city hall and the European forum for RestorativeJustice. This was the first international conference organized in Spain on thissubject. It was very successful and 250 persons from different parts of Spainand other countries such as Portugal and Mexico attended the Conference.The goals of this Conference were:Explain the benefits of Restorative Justice and victim-offender mediation to allthe citizens and let the citizens known that the Victim-offender mediation servicein Castilla y León exists and that they can decide whether they want to solvetheir problem through the Service or through the traditional system of justice.Draw the attention of government to support these Restorative services, as European the great saving ofgovernments do. Because at the end the cost is much lower thantime and money involving restorative processes such asmediationTrying to draw attention to the legislature so as to regulate Restorative Justice andvictim-offender mediation and establish a set of recommendations and conclusions once theCongress, is finished which may provide guidance and direction to the legislature in order toregulate this subjects in the best wayIn the opening ceremony attended:The coordinator of the victim- offender mediation service in Castilla y León (Burgos), Mrs.Virginia Domingo de la Fuente, read a letter from the President of the European Forum forRestorative Justice, in which he expressed his support to the organizers of the conference,briefly he explained the duties of the European forum and he apologized for not being in theconference, but he said he was in spirit, wishing all the best for this international event. He alsoconsidered the Conference of Burgos, a prelude to the International Conference of the Forum,which this year was held in Bilbao..The coordinator also apologized to the Hon. President of High Court of Castilla y León,because although he had expressed his wish to attend he wasn’t able to attend. The same dayin León, the President of the General Council of the judiciary imposed him the medal of SaintRaimundo of Peñafort. For this reason the High Prosecutor of the Community,Manuel Martin Granizo, was not able to attend to the Conference.Finally she also apologized to the voice of the CGPJ, Margarita Uria, who wasabsent; we believe that because of scheduling problems, since we are fullyconfident that she would have liked to be present at this international event sosuccessful that brought together 250 people. Página 1 de 17
  • 2. FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUTRESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS )The Delegate of the Goverment in Burgos, Ms Berta Tricio thanked theinvitation of the organizers and highlighting the work that they have been doing forseveral years. A totally selfless work, with great effort and enthusiasm that has ensured thatBurgos is a precedent in restorative justiceShe also highlighted the commitment of the Ministry of Justice with themediation and mentioned the draft law on civil mediation and arbitration, thatalthough expressly excludes victim-offender mediation, it is a first step towardsa future law in victim-offender mediation.The Hon. Mayor of Burgos, Juan Carlos Aparicio, reiterated his thanks to the victim-offendermediation service in Castilla and León (Burgos), for its work and the organization of thisInternational Congress. Although the Town Council has no direct powers in criminal matters,from the beginning it has supported and contributed to the Service and the member so as theycan move to international meetings on this subject representing Burgos, Castilla and Leon.The Rector of the University of Burgos, Alfonso Murillo, was satisfied that theUniversity had collaborated in organizing this Congress. He also stressed as theother authorities the great work that has been doing this Service and in particular thecoordinator. He highlighted the importance of this kind of activities especially for a city likeBurgos, who aspires to become European Capital of Culture in 2016. He also expressed hisdesire to hold successive editions of this conference and raised the need to incorporate notionsof restorative justice in the curriculum and concluded by stating opened the CongressThe inaugural presentation was given by the Prosecution in charge of supportand helps the victims, Ms Maria Boado Olabarrieta, with the title "theprosecution and victim-offender mediation." Her talk was very interestingbecause it offered a vision of what the traditional justice system offers tovictims, what fails and why restorative justice and mediation can be a way toimprove the justice systemSome people ask her whether she is particularly in favour of victim-offender mediation; sherightly said she was not against anything that can improve the system of justice. Also she spokeabout the agreement that the Prosecution’s office has with the victim-offender mediation servicein Castilla y León (Burgos) and about the annual report of this service she said that most victimsdo not want economic or material repair only symbolic.The next talk was a great pleasure for everyone because we had theopportunity to hear one of the "fathers of Restorative Justice" in Europe, MartinWright with his speech "law, justice and the suitability for its purpose: Towards arestorative response to crime. "In his presentation he established the advantages ofRestorative Justice against the current retributive justice and how restorative practices shouldbe present in all aspects of our daily lives.Then we have Brian Steels, a researcher at Murdoch University (Australia), withhis presentation, "Restorative Justice in an unjust world: transforming or more ofthe same," He told us about his work with indigenous groups in Australia andfrom philosophical point of view he tried to explain that it is necessary thecollaboration of all for Restorative Justice involves truly transformative justiceThe following talking was Mr, Miguel Angel Iglesias Rio, criminal law professor at theUniversity of Burgos, with the title "the victim and repair the damage, bases of victim-offendermediation." He offered us his vision as a professor of criminal law about which would be therequirements and conditions to start and conduct a victim-offender mediation processThen we had the pleasure of listening to Per Andersen, national director of theNorwegian mediation centres. We could hear how it has been the development of Página 2 de 17
  • 3. FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUTRESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS )Restorative Justice and Mediation in Norway since the 70s until now, we knew how to articulatefurther Mediation Services in Norway, which is the law and how to assist all agencies involvedTo end the day we have a very interesting panel disc ussion about the” Way toSantiago and its potential in victim-offender mediation”. Of the participants, stressed Mr JoaquinGimenez, judge of the Supreme Court Room 2, Mr Pablo Arribas, leading expert of the Way,members of the association of St. William of Arnotegui, a member of the Institute of SocialRehabilitation of Juvenile Offenders in Madrid and Mrs. Virginia Domingo, coordinator of thevictim-offender mediation of Castilla y León (Burgos) and researcher in the area of restorativejustice and mediation.The following day began with a very interesting presentation of the NationalPolice Commissioner of Burgos, Mr Javier Peña. He illustrated to us about policework, and why it is necessary in his opinion the victim-offender mediation and what are the linesof collaboration he has with the victim-offender mediation Service of Castilla y León (Burgos).The next presentation was devoted to whether it is good or not the prohibition ofdoing mediation in domestic violence involving the procedural law professor atthe University of Salamanca, Mr Fernando Martin- Diz and Mrs. VirginiaDomingo, coordinator of the victim-offender Mediation Service of Castilla yLeón (Burgos), and in spite of contrary ideas, one of the most important findingsof both shows that if there was a law on mediation in criminal cases, thisframework could allow certain nuances and doing an exhaustive selection ofcases, certain minor cases could be handled through victim-offender mediationor any other tool of Restorative Justice .And to close the Congress we had the great pleasure of having the Chief judge of theCourts of Burgos, and Juvenile Judge Ms Blanca Isabel Subiñas, which brought us into theworld of juvenile court and victim-offender mediation in this area, and in this case mediation isproviding in the law of minors.The Congress concluded with a significant presence of people from differentplaces in Spain and abroad, with a commitment to continuity in successiveeditions and the possible collaboration in the future of the Portugu ese Ministry ofJustice and its cabinet dispute resolution what can also help us to strengthen the foundations fora true implementation of Restorative Justice and victim-offender Mediation in Spain andPortugal is a good example of our European orbit since it is close and they have a law of victim-offender mediation.We also had the opportunity to hear the communications of a civil law professorat the University of Valencia, Ms Carmen Lopez-Beltran de Heredia and anotherof Philosophy of Law, at University of Burgos, Mrs Nuria Martín Belloso.FINAL REPORT:ABOUT RESTORATIVE JUSTICE IN GENERAL:1. Restorative Justice is a philosophy about how to approach the justice andcriminal law, which focuses on giving prominence to those affected directly and indirectly by theoffense. Part of the premise that damage has been caused and what are the actions required torepair this damage. To repair this damage are invited to participate the parties, and thus canachieve the result of repairing and restoring social peace. Although it may seem a new Página 3 de 17
  • 4. FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUTRESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS )paradigm, the fact is that for many years it has been established in places like the U.S. andCanada.2. Restorative Justice has a number of tools that facilitate the reintegration of the victim and theoffender into society from which they separated for the crime, leading to overcome their "role ofvictim and offender”Properly maintained RJ meets the needs of the victim to be heard, repaired andfeel safe again and the offender’s needs to apologize and amend as far aspossible the damage caused. The offender has the chance to reconcile with thecommunity, and get some degree of empathy for the feelings that are generatedin others3. Although Restorative Justice puts its emphasis on direct and indirect victims of crime andtheir needs, also promotes awareness and accountability of the offender for the act committed.Offenders experience the impact their actions have had on human beings, thus they arefavoured in more social behaviour, non-recurrence and facilitating their reintegration into thecommunity, thus fulfilling its own constitutional mandates a social and democratic state of rightin Spain, that are listed among other items in the article 25 of the constitution, which talks aboutthe role of rehabilitation and reintegration of penalties4. Restorative Justice contributes to a more mature, responsible and safer society becausethe beneficial effects of generating awareness and self-responsibility in offenders, affects all ofus because we will have less risk of new crimes by offenders who have participated in arestorative process. It is clear that the reduction in recidivism helps the whole community ingeneral because we not only have a sense of greater security but as indirect and potentialvictims of all offenses, we can recover the peace making "social peace."It seeks to promote understanding and social harmony through the "healing" ofthe victim, offender and some form of community.5. In Spain, we should allow the entry of the principle of opportunity in adults forcertain issues and thus provide an alternative outlet to trial through a restorativeprocess. This should be explained to citizens so they can see that with theseprocesses is to overcome the widespread perception that the criminal is "soft"and unjust also long and costly, precisely because through Restorative Justiceis given the role that corresponds to the victims6. It is necessary to provide training for experts in restorative justice so as restorative processescan be implemented with all the guarantees ensuring that exceptions to the principle of legalitydoes not imply an abdication of the State in its judicial functions . But quite the opposite as it willfacilitate the reintegration of the offender to comply with the mandates of our constitution and asocial and democratic state of law. For the training of these experts, it would be goodto include training in restorative practices in schools and universities so as thenext generation can be formed in culture of dialogue and communication toresolve their own conflicts. Thus in the future to speak about Restorative Justice will notsound strange to them, and all the problems they will find in their daily lives may contribute totheir personal development.And that conflict is inherent to life and we must provide all individuals the skillsnecessary to cope.7. Although Restorative Justice started as a reaction to the criminal act, itshould be extended the concept in all areas of life, also acting preventively. Thiscontributes to creating social capital and strengthen communities and that is a Página 4 de 17
  • 5. FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUTRESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS )different way of relating. According to Martin Wright, Restorative practices are a way to allow allinterested parties together to agree how to how to act in the future giving weight to the needs ofeach one.And Restorative Justice is the application of restorative practices to rectify orrepair the damage caused each other, especially when the harmful action iscontrary to law. Today, Restorative Justice is something more, a philosophywhich aims to find the wisdom to know the natural solution to the conflicts ofeveryday life through language as an essential tool. Restorative Justice is notonly a victim-offender restorative meeting, but defined in terms of dialogue,participation in the transformation of relations of the members of society.Restorative justice is essential values of responsibility and dialogue. As aculture, education: preventing violent behaviour and criminal acts while punitiveattitudes change, the concept of "passive victim" and the offender with "noChance to redeem his/her criminal acts”.8. The work of researchers is essential for the preparation of studies and analysis of thedifferent aspects of Restorative Justice to show legislators and administrations, the advantagesand benefits of Restorative Justice as an important step for people to accept and know moreabout Restorative Justice and that RJ will help them if they need these restorative processes. Infact all the publicity and promotion such as conferences, workshops, brochures....It is important to reach out to society, to inform them and prevent misconceptions thatmight adversely affect them. We need to know how to "sell Restorative Justice" and it seemsthat in Spain, the legislature is not encouraged to regulate Restorative Justice and mediation forfear of causing alarm among the citizens, hence that all publicity and promotion of RJ to societyat large is very important.We must also take into account that generally people who have never beenvictims are more punitive and contrary to generally restorative programshowever, people who have been victims demand a number of things that theycan not find an adequate response in the traditional justice system and insteadwith Restorative Programs they can find a more effective and successfulsolution.9. Any Restorative Justice program is inspired by a series of values or pillars ofwhich include:Compensation is to apologize, the victim is very happy when he/she receivesthe apologies from the offender. Offender promises to return what he/she hasstolen, get a job…Reintegration, reentry of the person in the life of the community as a productive member andthis occurs when people become good citizens. Both victim and offender may need help, theyshould be treated with dignity, they should provide moral support, material, spiritual and evenlegal.Meeting, the victim and the offender have a meeting or more (it will assess whether or not aface to face meeting, if it is not appropriate the mediator will act as a bridge between) in the jointmeetings, everyone can tell what they saw, offender tells what he thought when he committedthe crime, not just the legal side, it can be analyze how to go out of conflict, there is muchexcitement in this game, knowing the truth of voice of the offender and the victim Página 5 de 17
  • 6. FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUTRESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS )Participation The recognition of the crime and / or misdemeanour is very important,offenders are required to speak, as well as victims, and they should be involvedto know what they are feeling. Victim and offender together can addresspossible solutions that are not covered, they can analyze the compensation,reintegration… the needs and interests of each party are seen, even this would help othervictims. The important thing is that we think of the victims as never before.10. It should be promoted the inclusion of restorative programs at differentprocess:In the investigation stage (pre-trial) is currently governed by the principle ofpresumption of innocence, so they must meet the following requirements :The accused must be aware of the offense he has committed and itsconsequences.Participation is voluntaryOffender must be informed by his/her lawyer the consequences of theagreement for the purposes of legal benefits under the penal codeAt this time it is valued as a mitiga ting provided in the Article 21.5 of the Spanish penalcodeIn the post-sentencing stage and prior to execution:It can serve to give the suspension of imprisonment.It can also be used to replace the penaltyIn the execution phase:Restorative Justice can be used to obtain the third degree of prisonersTo grant for paroleSeek pardon11. The criminal law for minors in Spain already provides some mechanisms that weretentatively based on the philosophy of Restorative Justice, based on the participation of thevictim and so as to achieve a greater satisfaction of the interest violated due to the criminal act.This law provides criminal formulas such as mediation and conciliation as well as allowing theentry of the principle of opportunity in order to complete the process if it is reached a satisfactoryagreement. It is clear the wisdom of the legislature because if Restorative Justice aims toeducate and sensitize the offender to ensure that he has a new life without crime, this re-socializing effect will occur more strongly in young people whose personality is not yet fullyformed. And is that the educational impact on young people can and is very important.This trend should be incorporated in adults, as we said especially for certain cases.12. Restorative Justice contrary to what critics say is not a privatization ofJustice.On the contrary, they are rediscovering the victim. As García-Pablos says victimmust be discovered as a fundamental and essential next to the offender, legalpractitioners and collaborating with the effectiveness of the criminal justicesystem. Restorative Justice should lead the remorse of the offender, restorative justice is notexempt from public criticism or is outside the courts, as the first public reproach is exercised bythe direct and / or indirect victim, (the person who has suffered the damaging effects of crime is Página 6 de 17
  • 7. FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUTRESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS )able to express their rejection, the damage she/ he has suffered and what are the needs of thevictim to overcome his /her role.For many offenders the fact of facing the victim is a harder punishment than anyother kind of penalty. Moreover, legal operators are at all times aware that it has started arestorative process and that if it is not successfully it will return to normal procedures.13. The tools to implement and put in practice Restorative justice includesFamily conferencing, restorative conferencing or community group, There is a meeting with the victim, offender, and families of both, friends andneighbours and in order to manage conflict and resolve it taking care of theneeds of the victim, offender and communityPeace circles or sentencing circles:It is a process designed to develop consensus among community members,victims, defenders of the victim, the offender, police, members of theprosecution ... of an appropriate sentencing plan that address the concerns ofall stakeholdersVictim-offender mediationIt is a process in which the victim and offender meet face to face (if possible) inthe presence of an impartial and neutral mediator. Both talk about the incident,the victim can ask questions and receive information and express his/her feelings.The victims get a sense of closure regarding the incident to release "their angerand other emotions”. The offender has the opportunity to take responsibility, reduce harmfulrevenge and make restitution.14. It seems appropriate to conclude by saying, that the concept of RestorativeJustice is not new on the contrary, the idea of justice on "giving each his own"relates directly to the concept of Restorative Justice. In ancient times, thisconcept existed since the crime was conceived as an injury to the individual andthus for example the code of Hammurabi established as a penalty to crimesagainst property restitution of the stolen. This concept is based on indigenoustraditions of Australia, New Zealand, USA and Canada where they have beenpracticing certain forms of restorative justice based on reparation and healingthe "wounds" through discussion and interaction between victim, offender andsometimes the community.ABOUT RESTORATIVE JUSTICE IN SPAIN: WHERE TOWALK…?1. It would be desirable that the legislature can draft a law on Restorative Justice, at least inadults, to facilitate the work of those, like us that in the past several years we have beenworking in this field. This would help legal practitioners to give more support to these programsbecause they would have a legal basis on which to rely. We consider it is important to be aspecial law providing for Restorative Justice in the broad sense paying special attention to one Página 7 de 17
  • 8. FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUTRESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS )of the most used tool in our European environment: the victim-offender mediation. Reduce thelaw only to mediation in criminal cases; exclude other tools that in some cases may be morecomplete and efficient for including in the process more members of the community and theindirect victims of crime.2. The law should contain training plans for experts in Restorative Justice and because of thequalities and characteristics of the parties involved in restorative processes should be specificand concrete. We should not try to reduce a concept as broad as the Restorative Justice tovictim-offender Mediation, because in order to understand what is victim-offender mediationand what is their specialties that make it radically different from other mediations we must startknowing what is Restorative Justice its principles and values. Precisely because of thesespecial characteristics, people engaged in this work should do it so exclusively and completelyindependent of their profession of origin, although the professionals (lawyer, psychologist ...) intheir daily work can use restorative techniques to help people. The Restorative Justice expertwhen acting as such should be mediator or facilitator, no lawyer or psychologist.... To make agood training plan, it is important to include in the universities the subject of restorative justice, itshould be considered as a complementary part in certain degrees, while recognizing thatRestorative Justice has its own peculiarities and is composed of an entire philosophicalparadigm that makes it more than a philosophy, is more a way of coping with life. So victim-offender mediation as a tool of this Restorative Justice is not mediation as in other areas suchas family or community, it has certain peculiarities that require specialized personal training3. Restorative Justice Services should be offered free to all citizens according tomodels such as Mexican or Norwegian. Thus all individuals in the same conditions andwithout infringing the principle of equality could decide if their problem is managed by thetraditional process or through restorative justice. Therefore, the administration will giveeconomic support to these services that help the administration of justice, with the professionalswho work in these services an element of the justice system with judges, prosecutors, lawyersand others. And not to mislead the citizens it should be clear that the mediator or facilitator is anindependent profession that has nothing to do with the role of the lawyer, or psychologist orsocial worker for example.4. There are certain aspects that should be translated into law, an importantissue would be the introduction of the legislation, and the effectiveness would havethe record of agreements signed by the parties. Would it be binding?In this sense if we are talking about misdemeanours, could parties report the same facts infuture? What happen if the agreement is not fulfilled? If there would be a minimum so that theagreement had effectiveness, what would happen if the parties pull back, which would link incase of recurrence of the problem or conflict? In response to some of these issues, we must saythat as Norwegian law should raise the possibility that criminal mediation or restorative processthat is chosen does not work or does not comply with the agreements and then in this caseshould promote and enable a new victim-offender mediation or restorative process This isvery important because the results of victim-offender mediation or restorative processmay be not good at all the first time, because of a excusable mistake of mediator, through nofault of the mediator and the parties or unwillingness of either party. For the sake of the principleof minimum intervention of criminal law before turning to the ordinary way, it would be given asecond chance to the parties. Another issue that may be relevant is that once the parties have reached anagreement, they should be given a period to repent of the agreement andrelease the restorative process in which they participated. After the deadline, theagreement will acquire full effect. This period would be important so as not to depend on thepersonal whim of any party who may want to use the restorative process for their own benefitWe should also talk about whether there would be some limits in repairing thedamage, formulas to promote symbolic reparation or activities in case theoffender don’t have enough economic potential And especially we should pay Página 8 de 17
  • 9. FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUTRESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS )particular attention to the principle of legality, allowing the opportunity in certain cases (whichmight establish the law) if the parties reach an agreement, the case could be closed. We alsoshould establish what kind of follow-up should be performed to check whether the agreement isfulfilled. It should be structured how it is going to be regulating and how we want to do it.Another important issue would be how agreements should be in victim-offendermediation and what features should be gathered in a generic way and so wecan say that it would be appropriate:Resolve the immediate conflictCover all issues that have arisen between the partiesPrevent the occurrence of conflicts in the future (about a commitment to theoffender from re-offending)Ensure that the agreement is realistic and that satisfies all parties.Set out what each party should do, when and how to do it (specify quantities,dates and actions)Avoid non-quantifiable terms as “reasonable, common…”Include contingency plans if the agreement is not fulfilled…Usually agreement involves the offender commitments with respect to the victim. But there aresome cases in which the role of offender and victim are not as defined and in these cases theagreement may contain mutual commitments and not necessarily and exclusively to repair butof future behaviour, ways of action for the future.It is not necessary, nor advisable that agreements include explicit recognition of the facts bythe offender, so as not to violate the principle of presumption of innocence in case offenderrefuses to participate in the restorative process. These agreements should be specific, realistic,clear and simple and balancedAll questions that have been mentioned and many others must be specified andthen translate them into a law without loopholes, but without falling into the riskto regulate everything in such detail that we end by doing an ineffective law.5. These Restorative Justice services should be in collaboration withprosecutors, police, judges and other entities to assist victims and offenders.With regard to what restorative model, the most common in our environment is victim-offendermediation, but in certain crimes such as those in which there is no specific victim but we are allpotential victims (eg traffic safety) might allow other restorative models that include theparticipation of community members, police ... In any case, the values and principles ofRestorative Justice will inform the criminal proceedings.6. In line with what we have been telling it could be regulated if in certain cases the restorativeprocess could be done with a surrogate victim, for example if the victim does not want toparticipate directly but authorizes another person to act in the whole process on their behalf. Similarly, it could be facilitated a restorative encounter with a victim and a surrogate offender,namely the offender is not the one that directly caused the damage to that concrete victim butwith another offender who committed another crime of the same characteristics Why wouldthis be desirable? Because if an offender wants to take responsibility and apologize to showhis repentance, he/she should have the opportunity as part of their reintegration andrehabilitation process and if the victim does not want to take part, she/he can send someone inhis place or even meet with another victim of a similar crime committed by another offender. Inthis sense if a victim needs to express what he/she feels, finds answers, to channel their"anger", and heals his wounds, to overcome their role as victim and reintegrates into thecommunity we will need to enable channels of contact with other offenders whohave committed similar crimes (particularly if the offender does not want to participatein the restorative process) to which she/he has suffered. Página 9 de 17
  • 10. FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUTRESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS )7. It should be assessed and eliminated the prohibition of mediation in domesticviolence, allowing in certain minor matters, being channelled through arestorative process which may well be victim-offender mediation or maybesomeone else as restorative conferencesABOUT THE VICTIM-OFFENDER MEDIATION IN SPAIN From apractical perspective1. Victim-offender mediation is the most known in our European environmentand the more applied but now increasingly we tend to explore the use of othertools such as restorative conferencing. In fact, this Congress has been considered fortheir interesting topics and the massive support the anteroom of the Congress of the EuropeanForum for Restorative Justice that this year will be held in Bilbao, which among other issuesdiscusses the implementation of restorative conferencing in Europe.2. Victim-offender mediation can be defined as a free and voluntary process ofdialogue and communication between the victim and offender led by an impartial mediator inorder to reach satisfactory repair agreements and freely accepted by the parties.3. It is a voluntary, free, confidential process, alternative or complementary to the traditionaljustice system, an impartial third party intervention; saving time and effort as it involvesspeeding up the process, informal but with structure and no rights are lost (the parties alwayshave the open judicial proceedings and may withdraw at any time of the victim-offendermediation)4. Although there is no express regulation in adults, only in minors, there areinitiatives in some parts of Spain as the city of Burgos, Castilla y León. Experiences like that of Burgos, whose service began struggling to develop victim-offendermediation and restorative justice in 2004 and they actually started in 2006 show that victim-offender mediation works and it is well received by the citizens. It is good to continue promotingthis institution to the community and government, to bring it closer to the whole society ingeneral so as that government will be able to see that benefits of Restorative Justice are morethan the economic costs.5. There is an unequal situation with victim-offender Mediation Services in Spain, and so thereare services in some places and not in others. And with financial support in some places, whileothers don’t receive economic support. This successful experience of Burgos, is due to thesupport received from various institutions among which we highlight: the prosecution of bothCastilla and Leon, as the de Burgos and the General Don Manuel Martín-Granizo, as ourmaximum support, Jose Luis Concepcion (President of the High Court of Castilla y León), theGeneral Council of the Judiciary and its chairman Don Carlos Divar, the chief judge of the city ofBurgos, Blanca Isabel Subiñas, the Commissioner of Police, Don Javier Peña and the mayor ofBurgos, Juan Carlos Aparicio, who has worked to facilitate among other things, our trips to theCongress of the European Forum for Restorative Justice, as representatives of Castilla y Leonand Burgos.6. This collaboration with the administration and legal practitioners is vital for theproper conduct of the Services. To avoid reticence of these people, arising becausevictim-offender mediation is not regulated, is essential the researcher work to substantiate theprinciples of victim-offender mediation in what already exists in our law as mitigating of repairthe damage in the criminal code and the purposes of rehabilitation and reintegration ofsentences in our constitution and other articles in the penal code and criminal procedure law. Página 10 de 17
  • 11. FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUTRESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS )7. Victim-offender mediation has its own characteristics that came from the philosophyunderlying these practices, the Restorative Justice. Also these unique characteristics arederived from two parties that are not equal, a victim and an offender who take part in theprocess. This makes that training in this area should be specific and specialized. It is essentialthat all training plans can be informed by the Restorative Justice. And for the future to be morestable and safer for citizens and for those who work every day in this area, it would be desirableas mentioned above that a law can provide Restorative Justice and the most used tool in ourEuropean environment, victim-offender mediationABOUT VICTIM-OFFENDER MEDIATION AND RESTORATIVEJUSTICE IN CASES OF DOMESTIC VIOLENCE1. The prohibition of mediation in domestic violence in Spain raises seriousdoubts and we should value its change or correction. This prohibition in ourSpanish law raises a number of problems: the first is what can we understandwhen the law says mediation is not allow in this type of crimes (violence againstwomen). It is not feasible that legislator was talking about victim-offender mediationbecause we can not ban something that it is not actually under the law andthere is no explicit reference about this institution.Perhaps legislator was talking about family mediation, and in this case thisprohibition is accurate and clear since here we don’t have two parties withoppositing interests in a family problem, but we have one offender and onevictim.And if legislator had tried to prohibit victim-offender mediation, this applies onlyto a tool of Restorative Justice but leaves open the door for other instruments toimplement the philosophy of Restorative justice as circles or conferencing.2. At that time this ban was considered successful by the proliferation of suchviolence and ignorance of what restorative justice entails. On one hand theexcessive growth of domestic violence crimes and the social alarm forced thelegislator to more punitive rules so as to leave no doubts that this abuse is notjustified under any circumstance and it has the blame of society.On the other hand, it is mistaken believed that if we allow Restorative Justice, itis about to privatize this kind of crimes, and we are going to eliminate the socialblame of such crimes and these crimes has a premium for their specialcircumstances. The feminist struggle is guided to recognize domestic violenceas serious, public and punishable by law beyond the private sphere. Restorativeprocesses to some extent can be considered a private matter, but they are notfree of social criticism and they are not outside courts.3. However despite the specific law on domestic violence in which among otherthings, it tightened the penalties for both physical and psychological abuseespecially of men over women and created a network support and assistance towomen including publicity in media that seeks to instil in society a sense ofresponsibility to deal with situations of abuse and to generates a feeling ofsolidarity and opposition to any kind of abuse to women, the fact is that theissues have not been reduced and prisons have a high percentage of abusers.This leads us to ask ourselves if these offenders will be held accountable fortheir actions or they will leave prisons with “more anger” and “vengeance”. This Página 11 de 17
  • 12. FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUTRESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS )question arises from the observation of what usually happens in many caseswhere offenders go to traditional system of justice because in many times thesystem does not respond properly especially if we focus on the victims of thesecrimes( usually stills more vulnerable than other victims) Why does thishappen? o Violent man does not have to explain or explore his aggressive behaviour; he will deny it, trying to prove his innocence. The trial will create incentives to reinforce his denial of crime. The offender tends to justify their aggression. o As trial gets them into trouble, offenders may increase the pressure and violence against women. As a result future aggressions sometimes will happen and they will remain secret. o Criminal processes sometimes silenced victims, the frightened woman under pressure from the partner will refuse to give evidence in court or even deny the allegation and offender can be absolved and violence will continue. Besides victims in criminal process are only witnesses.4. As the Prosecutor Mrs María Boado, in charge of Help and Support victimssaid: “it is so obvious that we can’t be against something that will improve ourtraditional system of justice. Based on this successful premise (and it isapplicable not only to domestic violence) we can establish that RestorativeJustice in these type of crimes can be very important and a useful tool. Why? o In Restorative Justice domestic violence crime is seen as a violation not only of the rule but also of individuals and their relationships. In crimes of domestic violence, restorative justice focuses on the past, present and future with offenders taking responsibility for their abusing actions. It is concerned with protection of victims and accountability of offenders. While traditional justice is concerned only by the imposition of penalty to punish and prevent, restorative justice uses restitution as way to repair as much as possible the damage caused to victim and through this restorative attitude raise awareness about the harm the offender has caused. o With Restorative Justice, the victim is given the opportunity to “heal” wounds and we protect them, giving the community the chance to speak too, as an indirect victim of these crimes (in certain tools, not all). The offender is encouraged to take responsibility for his actions and it is given support to them to change their behaviour. Página 12 de 17
  • 13. FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUTRESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS ) The offender accountability is based on his understanding of the impact of his action and his will to take part in a process which will examine his values standards and he will take action to change his behaviour. Victim has voice in the accountability of the offender. o Traditional justice focuses exclusively on his past behaviour; Restorative justice focuses on the harmful consequences of the abusive behaviour, giving him the opportunity to take responsibility for the violence committed and is able to repent. The “stigma” of crime may go away by changing the offender’s behaviour. o In domestic violence, the concept of restore, typical of restorative justice is not to restore woman in her situation before violence, because the risk would be evident if the person is returned to the previous state of violence. In domestic violence, restore can be considered as the creation or recreation significant relationships of equality.5. Once we have seen why restorative justice can help in certain domesticviolence crimes, what is the most appropriate tool to implement restorativejustice?We used to think almost exclusively in mediation in Spain. During thepresentation of the teacher Fernando Martin Diz, we were aware of theexistence of a great number of problems, that make the implementation ofvictim-offender mediation in Spain in general and especially in domesticviolence very difficult.It is clear that the main problem is that there is no explicit regulation on thissubject and this coupled with the prevalence of the principle of mandatoryprosecution leave a short space of action. Mediation is also criticized by theimbalance of power that would prevent a terrified victim to meet with offender invictim-offender mediation and to feel safe enough to discuss and reach anagreement. However Mrs Virginia Domingo said in her presentation that thereare mechanisms to balance as far as possible this imbalance, explaining that ofcourse, not all cases would be suitable for victim-offender mediation.We must also be assumed that victim-offender mediation is radically differentfrom other mediations in other areas such as family, community…In other mediations, parties are contenders and work on the assumption thatthey both contribute to a greater or lesser extent the conflict and they both mustreach an agreement. In these cases mediation focuses on finding solutionsrather than see the impact that the conflict has had on the lives of the parties.In Victim –offender mediation, a party has committed a crime (offender) andusually he has admitted it or he has been caught “red handed” and the otherparty has suffered a crime (victim) and so in victim-offender mediation istherefore an explicit imbalance of power.While other mediations can be considered “driven solutions”, victim-offendermediation is above all “driven dialogue” with the emphasis on healing the victim,offender accountability and reparation of the damage. So if victim-offender Página 13 de 17
  • 14. FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUTRESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS )mediation is different from another kind of mediations, of course more so indomestic violence. All of these explanations are because although in Spain wetend to forget, victim-offender mediation is supported and based on aphilosophy, a paradigm about justice which focuses essentially on the victim,this is restorative justice. Virginia Domingo said that to overcome the obstacle ofthe imbalance of power in domestic violence, the individual work of mediatorwith offender and victim is especially “hard” and important and it may expandover time until mediator can achieve the best possible balance and the victimcan feel safe enough to participate in a joint meeting.In relation to non existence of explicit rules, Fernando Martin Diz is absolutelyright but that’s why there are services such as the victim-offender mediationservice in Castilla y León( Burgos) , engaged with its work, that not onlyprovides the service and offers the public, the benefits of this system toencourage the legislator to regulate it and it also organizes conferences to bringattention about what restorative justice is and provides a number of appropriatevariables for a future regulation so as to achieve and effective and successfullaw.6. There are other restorative practices such as conferencing or circles. Thesepractices according to Virginia Domingo in her presentation can be even morebeneficial than victim-offender mediation since they include members ofcommunity, family and friends of each other. This is good for several reasons:  First it is an excellent way to educate the community in order to understand the scope of these crimes, so they no longer justify them and they can cease to be “dumb” witness. We can forget that education is prevention and taking part in these conferencing or circles can be a way of learning the damage, effects and the impact that these crimes cause and also the reproach of society, so that these can act as a deterrent effect potential future abusers.  Victim ceases to feel “alone” and “guilty” for the behaviour of violent man. She realizes that she has the understanding not only of her immediate environment but also the society in general. She feels the empathy of community thus she realizes that she has done the right thing.  It generates cooperation between the participants a sense of togetherness.  With these restorative tools, favouring the inclusion of members of the community, restorative justice is never a private institution as the crime generates criticism from the general public (society is represented in the restorative process) and they all are directed involved in responding to crime. This support the assumption of responsibility of offenders because it is no longer a third party fully unconnected to crime ( judge) and far away in authority and empathy, who is going to punish him, they are going to be normal persons like him who will criticize his attitude and will try to show offender that his behaviour is wrong. Página 14 de 17
  • 15. FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUTRESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS )7. As a conclusion to the issue of domestic violence and victim-offendermediation and restorative justice we have to say that harsher sentences tooffenders has not worked as a deterrent effect, generating even more “anger”.That’s why we should combine the law with restorative practices so as topromote the awareness of society and the immediate environment of the victimand also the awareness and possible change of offender who wants to copewith his violent behaviour and not to repeat it. Any restorative tool can bebeneficial, taking into account as a main premise the security of victim.Legislator is not encouraged to the regulation of Restorative Justice in Spain,because of fear of causing social alarm. We need to give time to society andcorrect and adequate information so that the “chip” of tougher penalties couldchange as it has been shown that more punishment is no accompanied by safervictims and less offenders. Certainly we focus on punishing offenders but weforget the victims’ real needs and their feeling and perceptions.Restorative Justice and victim-offender mediation will not be the “panacea” forall cases but an important step for the “change” of some offenders and theprogress in the prevention of many others.FINAL RECOMMENDATIONS FOR GOVERNMENT, LEGISLATORAND LEGAL PRACTITIONERS AS WELL AS OTHERINTERESTED PERSONS.Based on the above findings and in accordance with the lectures andcommunications that took place on 4 and 5 March in the Assembly Hall of theFaculty of Law at Burgos, we have to establish a set of recommendations,waiting that in the second edition of the international congress in 2012, many of them havebecome real . o Restorative practices should be present in all aspects of everyday life (schools, workplaces, leisure ...) because conflict is something substantial to humans, its existence is inevitable, yet we learn by and through the conflict. Through Restorative Practices base on dialogue and communication we can achieve a more mature, responsible society and we will be able to manage our problems without delegate the conflict to a external person (without going to court in every moment) o Professionals engaged in Restorative Justice should provide mechanisms (as is the case in countries such as Norway) to ensure that certain minor matters such as petty crimes don’t reach the courts, resolved exclusively through restorative techniques. This was to fulfill the principle of minimum intervention of criminal law. Similarly, people learn skills to manage and resolve their problems, helping to avoid "escalation of the conflict “and promoting social peace. And serious crimes usually arise from small disputes because of that we can talk about the preventive importance of Restorative Justice and its tools as mediation . o In our current criminal justice system purely retributive in which the State is left with the criminal conflict, try defending above all things the rule breached and decide according to it the punishment and guilt, we should aim at a Restorative justice system in which the victim can recover, decide how he will Página 15 de 17
  • 16. FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUTRESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS ) be repaired and the offender has the opportunity to assume and take responsibility for his conduct through this repair the damage. o The government should care about this institution, recognizing the great benefits and regulating it. This regulation should broadly comprise Restorative Justice and not limited to victim-offender mediation because other tools may be more appropriate in certain circumstances. They should provide these services with economic fund, although many of them have already been working for sometime, thus dignify their work and provide some certainty for both the professionals and the public in general. o In addition there should be "union" between all those involved both directly and indirectly to achieve a more effective law and it would be possible to do so based on our European environment in which specific laws exist on the subject, and the work of researchers in Restorative Justice. It is not about wanting the "medal" but acting for the common good, to achieve a society fully restorative and criminal justice system if we were to reach it, also restorative o Training in this area is another point to consider, for this we can build on the existing international and European recommendations on the training of professionals, such as the European Forum for Restorative Justice, an organization that is recognized by the European Commission. In particular for our future generations it would be desirable that there could be subjects of restorative justice and restorative values and principles from colleges to universities, finishing even with the need to create a degree of Restorative Justice and its tools, but this can only occur when we reach to be a restorative society in all respects. And so, we must get the cooperation of all: politicians, journalists, judges, prosecutors .Together, we must do more to society than punishment and punishment are not the solution. Finally, we consider useful to offer a short summary of literature, as these conclusions are based on what it was said during the two-day congress by the people involved, as reflected during this time and in the existing literature on the subject. • Nordenstahl Eiras, Ulf Christian "victim-offender mediation from practice to theory" Historical Library. Ed. 2005.Argentina • Christie, N "Images of man in modern criminal law." Criminology and Criminal Law Institute. University of Oslo • Domingo de la Fuente, Virginia "Restorative Justice and victim-offender Mediation from theory to practice." Article published in the journal of criminal law, lex nova. January.2008. • Domingo de la Fuente, Virginia "Introduction to mediation." No 00/2006/1326 • Roxin, C "repairing in the criminal justice system of sanctions." Days on criminal law reform in Germany. Ed notebooks the Supreme Judicial Council. Madrid. 1 991, p. 119 • Domingo de la Fuente, Virginia "Restorative Justice and domestic violence: possible, e error or success” • Domingo de la Fuente, Virginia "Present and future of the victim-offender Mediation Página 16 de 17
  • 17. FINAL REPORT OF THE INTERNATIONAL CONFERENCE OF BURGOS ABOUTRESTORATIVE JUSTICE AND VICTIM-OFFENDER MEDIATION.VICTIM-OFFENDER MEDIATION SERVICE IN CASTILLA Y LEÓN (BURGOS ) and Restorative justice in Spain”. August.2009. • Report of the victim-offender Mediation Service of Castilla y León (Burgos) 2007 • Report of the victim-offender Mediation Service of Castilla y León (Burgos) 2008 • Report of the victim-offender Mediation Service of Castilla y León (Burgos) 2009 • Norwegian Penal Law Mediation, 1992, as amended in 1993 and 2003. Circular of the Norwegian General Prosecutor, 1993 Página 17 de 17