Victim-Offender-Mediation in Germany

- An Overview[1] -

By Arthur Hartmann/Hans-Jürgen Kerner, Department of Criminal Justice and Criminology, University of Tübingen

Development and framework

The start with model-projects

The practical implementation of Victim-Offender-Mediation (VOM) in Germany commenced in the year 1985 with a few experimental respectively model-projects concentrated upon   juveniles (14 to 17 years old) and/or adolescents (18 to 21 years old) charged by public prosecutors with largely misdemeanour offences.[2]

 

During the first period of development Germany experienced a rather rapid rise in the number of new VOM-projects.[3] The results of a national survey in 1990 showed 134 VOM-projects for the year 1989, and a replication of this survey in 1996 counted 216 projects for the year 1995.[4] However, the majority of those first line projects had only a small caseload. In 1989 only 3 projects worked with 100 or more offenders, and in 1995 this number increased to 23 out of 216 projects.[5] The total amount of cases dealt with in VOM-projects increased from 2,100 in 1989 to 9,100 in 1995. Unfortunately, no further replication of the national VOM-survey could be carried out afterwards. Therefore we do not have exact figures about the recent situation. Estimations however, as based on informal fact finding tend to eventually assuming some 25,000 VOM cases happening each and every year in the whole country by now. Besides many differences in detail, the overall pattern of the situation has not changed too much in the long run. In many places in Germany VOM is still considered to be something like an “exotic thing” whereas the greater part of VOM-cases stems from a relatively small number of well run and more than just modestly equipped projects. During the last year’s budget cuts due to reductions in public subsidies led to a stall in the development. There is no continuous rise in VOM-projects any more. In some regions of the country even a few of the comparatively very successful projects had to be closed.

 

Legal framework

More or less parallel with the development of VOM in the practice also a legal framework for VOM has been created. In 1990 VOM explicitly became part of the special penal law regarding juvenile and adolescent defendants. The main new regulations were written down in the 1990 revisions of sections 45 and 47 JGG (Jugendgerichtsgesetz = Youth Court Act). Since then juvenile court judges and public prosecutors[6] are entitled to divert officially any suitable case to a VOM-project, and eventually to dismiss fully the formal criminal procedure after a successful mediation has taken place. The law provides also for a couple of other opportunities to initiate VOM and to take VOM into account in the disposal of cases but these regulations are not as important as the diversionary procedures following sections 45 and 47. This is especially true for section 10 Nr. 7 JGG which gives the judge the possibility to impose in the final court verdict the order to the young convicted offender that he/she has to try hard to find ways and means to reach a conflict resolution with the victim.

 

As adult offenders are concerned the main regulations are to be found in sections 153 and 153a StPO (Strafprozessordnung = Code of Penal Procedure). In substance these sections are similar to sections 45, 47 JGG. But there is one legally very significant difference which plays a certain role, too, in practice: adult offenders can only profit from diversionary measures if misdemeanour offences are on stake. This offence category applies regularly in cases where the penalty range goes from 1 month to 5 years imprisonment or/and a fine. Those persons handled along the juvenile court law, in the opposite, may also get their felonious acts diverted. The legal offence category of a felony applies regularly in cases where the penalty range goes from one year minimum to 15 years maximum of imprisonment, if not for a life time sentence.

 

Whereas sections 153 and 153a StPO regulate under which circumstances a case can be dismissed in general, in December 1994 a special Federal Act was promulgated which introduced, inter alia, a regulation for restitution and VOM in the new section 46a StGB (Strafgesetzbuch = General Penal Code). This material law section 46a StGB regulates in a more detailed manner than sections 153, 153a StPO under which circumstances a case can be dismissed by a criminal court or to which extent a sanction should be mitigated after a successful VOM.

 

Along section 46a StGB restitution or VOM is not a mandatory solution for the courts. However, if a court decides not to enter into such a way, it should explicitly provide a reasoning why restitution or VOM has not been taken into account. In this regard an appeal is possible against a judgement.

 

In 1999 the Code of Penal Procedure has been amended with sections 155a and 155b to enhance respectively enforce the use of VOM regulations in everyday criminal justice practice. Prosecutors and judges should take the use of VOM in every suitable case into account. They are expected to instruct victims or/and defendants about relevant possibilities in cases where it seems that the parties to the offence do not have already sufficient knowledge of what could be initiated. “Should” means according to German legal terminology an obligation. This obligation is only voided if and when the victim rejects a VOM-offer. With section 155b data and information exchange between the court and (private) VOM-projects has got a sound legal basis in terms of privacy and data protection laws.

 

In the data sets available so far one can find no strong evidence for a direct influence of the legislation on the number and quality of VOM-cases.[7] Nevertheless, the support by the legal approval of VOM should not be underestimated. The most important factor for the development seems to be a trustful relation between the prosecutors, the judges and the mediators.

 

Organisational framework

 

There is a variety of institutions that offer VOM. Some are private non-profit organisations, others public agencies like especially the Juvenile Court Aid and the Court Aid for adults. Also welfare organisations run by the Christian churches offer VOM. A growing number of projects have specialized in VOM whereas others still use VOM only as a supplement to their original respectively main routine services. The discussion about the best possible type of implementing “best practice” VOM arose quite early in German circles. In the course of this discussions a “codex of standards” has been developed which is nowadays being subscribed by the majority but still not by all projects.[8] Two of the most important standards are that mediators need a special training and that in any single case mediators must not have a second role or task e.g. as court aid for the offender.

 

To support the projects and to initiate and bundle up activities a “Victim-Offender-Mediation and Conflict Resolution Service Bureau” has been founded in Cologne by the DBH (German Association for Social Work, Penal Law and Crime Policy) with the support of the Federal Ministry of Justice and some other public authorities.[9] Among many other activities this office is organising trainings and qualification courses since 1991.

 

The selection of VOM-cases is done for the most part by public prosecutors. Data out of the so-called VOM-Statistics from 1993 till 2002 show that about 70 % of all VOM cases have been sent from the prosecutors to the VOM-projects. The initiative of social services and police may be underestimated here because these agencies have in the main no opportunity to send their cases directly to the VOM-projects. The legal responsibility in German criminal justice procedures is entrusted to the public prosecutor’s office. A very small but possibly growing part of cases are not prosecuted in the core sense of that term, however, but are referred directly on the initiative of victims, offenders, social workers, schools etc. (4 % of all cases the projects were dealing with in 2002). Surprisingly with regard to the legal options given to them by the recent legislation the judges have still no sizable share in the selection of VOM-cases (about 2 % in 2002). Apparently VOM is seen as a means of diversion in cases that are not too severe for dismissal. The high share of referrals by prosecutors, regarding the amount of cases in general, does not imply in practice that, with regard to the total number of prosecutors, all or even the majority of them approve VOM or would like it to administer in the same degree. As already pointed out in earlier studies[10] even in one and the same prosecutor’s office the support for VOM varies considerably among the individual prosecution attorneys.

 

Conception of VOM in Germany

 

There is not only one single coherent idea or a unique theoretically elaborated concept behind what is administered as VOM in Germany. Mediators may see VOM in their majority as a means enabling the parties to find the best resolution of their conflict. To a certain extent it was the perspective of Christie which stood at the cradle of VOM in Germany.[11] Legal theory in this country emphasizes on the one hand, that VOM fits to the classic task of criminal law, which is to prevent further offences by influencing the offender and the public.[12] It states on the other hand, that VOM is a reaction to a criminal offence which restores peace between victim, offender and society, and can make additional criminal sanctions superfluous.[13] The idea of reintegrative shaming[14] and its application in conferences and circles could not take deep roots yet in Germany. The problems of moral pressure and stigmatisation, and the protection of legal guarantees in conferences and circles appear still to be unsolved.[15] In addition the use of conferences and circles would demand special legal provisions. We do not have those in a suitable manner, because in criminal proceedings against juveniles the public is according to section 48 JGG excluded from court sessions. This rule of a so to speak  “closed trial” cannot not be put aside when a case would be considered as being apt to get transferred to an alternative procedure. Thus, a conferencing model which includes participation of a "community public" or parts of the social vicinity can hardly be realized within the framework of the present German legal system.[16] With adolescent and adult offenders the data protection regulations of sections 474 et seq. StPO may hinder the spreading of information to a broader public.

 

 

 

 

Results of the VOM-Statistics

 

The following results are taken from the VOM-Statistics. This statistics is a collaborative documentation on VOM-cases, which started in 1993. All German VOM-projects were and still are invited to join in, and every participating institution gets back, as a service, an individual report of the particularities of their cases and the overall case flow. If a project takes part, it has to document all its cases - whether successful or not - with a standardised questionnaire that contains about 60 items for every case, regarding (a) the case and its progress itself, (b) particularities of the offender(s) involved, and (c) particularities of the victim(s) involved. As the participation is voluntary, and since still many institutions refrain from joining in, the VOM-statistic can not be considered representative for all VOM-projects in Germany in a strict sense. In substance, however, all criteria we can use, including reports published by non-joining projects themselves, indicate that the VOM-Statistic gives an at least valuable, if not valid and reliable, impression on the VOM-scenery in Germany, mainly because projects from every German region, from every size and from every form of organisation are taking part. In the years 1993 until 1999 the numbers of involved projects were varying between 43 and 72. In detailed data analyses no structural differences in any respect could be detected as depending on the number of participating institutions. Preliminary numbers, relating to the years 2000, 2001 and 2002, have been already reported to the German Federal Ministry of Justice in a commissioned expert paper. They can not be shown here yet due to copyright questions, since the ministry is considering publishing a governmental document on VOM containing also VOM-statistics. However, it can be said here that no structural changes have been occurring in practice and policy after the year 1999 so far.

 

Types of Offences

An essential criterion with the evaluation of VOM-cases is obviously the offence. In the German legal literature it was initially rather controversially discussed whether or not VOM should be possible at all with injury-offenses. This question has been mostly settled by now in the positive direction.

 

The following evaluations are made on the basis of the offenders data sub-set of the VOM-Statistics. Per each and every offender involved in a case up to 5 offences can be marked in the questionnaire. The percentage numbers shown here do refer to the totality of offenders with whom a VOM-attempt was undertaken by the project operators. Since several offences could be declared per offender, as said, the summation of the percent-values can yield more than 100 percent.

 

It was already known from former examinations that a wide offense-spectrum is being processed in VOM. A representation of all offenses in detail would go beyond the framework of this report however. Therefore, the development of the VOM-cases is shown on the basis of the most frequent offenses, and in form of condensed main-offence-categories.  Almost two thirds of all VOM-cases taken into consideration contain bodily injury offences. Violent crimes in general make a share of more as 70%. Theft, fraud and damage to property yield together about another 25 %. The remainder comprises a wide range of crimes, e.g. trespass, exhibitionism, insult, wrongful deprivation of personal liberty, compulsion, threat, robbery, extortion, falsification of documents, arson, illegal dumping of dangerous waste - altogether more than 50 different types of offences.

 

 

Especially the injuries inflicted upon the victim and the backgrounds of an offense are of big significance in the VOM-process and find frequently no precipitation in the legal categories. Nevertheless the legal norms form a category-system, with which the diverse situations and facts can be represented in a moderately adequate way, and that allows the comparison of different cases because it is applied relatively uniformly across the country and among different authorities.

 

Table 1:

Types of offences, main categories

 

1993

1994

1995

1996

1997

1998

1999

N

%

N

%

N

%

N

%

N

%

N

%

N

%

Bodily injury [17]

830

58.0

1165

57.8

1534

63.7

2498

60.9

2766

60.7

2831

53.3

4379

62.4

Theft and fraud[18]

180

12.6

291

14.4

261

10.8

437

10.7

452

9.9

544

10.2

554

7.9

Criminal Damage to property[19]

23

1.6

3

0.1

5

0.2

23

0.6

39

0.9

45

0.8

34

0.5

Robbery/Extortion[20]

118

8.2

162

8.0

215

8.9

287

7.0

357

7.8

341

6.4

651

9.3

 

 

 

 

 

 

 

 

 

The evaluation shows that the main focus of the offences lies steadily with violent crimes. Here the value of a continuous inventory becomes especially clear. Contrary to the initially brought up misgivings in the literature, there is now much evidence, that VOM has proven itself as a success exactly with this offence-group. One should accentuate in addition that robbery- and extortion-offences are represented in the VOM-Statistic with a higher share as in the general German police crime reports (= Polizeiliche Kriminalstatistik, PKS). The average distribution of offences is depicted in the preceding figure 1.

 

The share of violent-offences reaches with the juvenile and adolescent offenders over 60 % and therefore somewhat more than with the adult offenders with an average of approximately 55%. Detailed evaluations showed, however, that violent-offences stand also in the adult criminal-law in the foreground and not the bare handling of financial damages.

 

 

 

Table 2:

 

Seriousness of violent offences in terms of injuries caused to the victim

 

1993

1994

1995

1996

1997

1998

1999

N

%

N

%

N

%

N

%

N

%

N

%

N

%

Small injuries

304

41.5

392

40.5

480

40.0

874

42.0

932

41.3

1125

43.6

1555

43.7

Slightly serious injuries

315

43.0

442

45.7

525

43.8

908

43.6

1022

45.3

1068

41.4

1515

42.6

Definitely serious injuries

101

13.8

122

12.6

181

15.1

279

13.4

271

12.0

345

13.4

437

12.3

Injuries with long-lasting consequences

12

1.6

12

1.2

14

1.2

22

1.1

32

1.4

42

1.6

49

1.4

No injury / missing

615

 

797

 

927

 

1709

 

1740

 

2081

 

1443

 

Total

1347

99.9

1765

100

2127

100

3792

100

3997

100

4661

100

6049

100

 

 

 

According to an assessment made on the part of the mediators who are active in practice, approximately 40% of the injuries lie in the area of the minor harm and approximately just as many lie in the area of the middle-serious harmful consequences.

 

The share of cases with serious injuries amounts slightly more than 10%. Injuries with long-lasting consequences like impairment reach only 1.4% of the VOM-cases.

 

 

 

 

 

 

The distribution in the case-input of the public prosecutor's offices is not known. Therefore the mentioned result cannot finally be assessed in its quality respectively general criminal policy relevance. However, it is to be assumed that serious impairment and injuries with long-lasting consequences are clearly under-represented also in the input of the public prosecutor's office. Also violent offences with little injuries usually are not dismissed or left without a sanction in standard criminal justice procedures.

 

Taking all these findings into account, the widespread fear among liberal critics that VOM may primarily cause an expansion of social control can not be confirmed by this evaluation.

 

Beside the offense and the seriousness of the injury is the number of previous convictions an im­portant selection-criterion with all forms of diversion. The following table shows the share of first-time offenders among the VOM-cases[21].

 

First-time offenders put the lion’s-share among the VOM-cases. However, the share of offenders with pre-convictions is compared with the restraint in many other areas not insignificant.

 

 

Table 3:

 

Share of first-time offenders among offenders’ groups

 

1993

1994

1995

1996

1997

1998

1999

N

%

N

%

N

%

N

%

N

%

N

%

N

%

All age groups of offenders, including those below the age of formal criminal responsibility

634

70.3

879

72.9

972

68.5

1566

75.7

1597

74.9

1699

73.4

2049

71.4

Particularly juvenile (14<18)  and adolescent (18<21) offenders

542

70.7

724

72.4

832

70.0

1155

75.3

1153

73.6

1219

73.7

1441

70.1

Particularly Adult offenders (21 +)

88

63.3

125

71.4

112

56.0

342

74.8

366

75.3

419

70.1

514

71.8

 

 

 

 

 

 

 

Acceptance of VOM among victims and offenders

 

 

Participation in VOM is voluntarily. Therefore acceptance of the measure by offenders and particularly by victims is crucial. Since the first reports on VOM in Germany it is common knowledge that actual acceptance is considerably higher than originally assumed by many in the field and in the general public. There was some uncertainty in Germany about whether the high levels of acceptance found in pilot-projects would be repeated when VOM became more widely established. It is clearly proven now that people in general are willing to a high degree to enter into those procedures.

 

 

Table 4:

 

Extent of  contact with victims, and acceptance of  VOM among victims

                                    1993           1994             1995          1996            1997          1998          1999

 

N

%

N

%

N

%

N

%

N

%

N

%

N

%

Victim accepts to participate in VOM

870

65.8

1207

70.5

1448

68.9

2599

71.0

2802

70,8

3182

68.4

3751

62.6

Victim refuses to participate

244

18.4

319

18.6

410

19.5

597

16.3

696

17.6

881

18.9

1269

21.2

No contact to the victim possible or offender refuses to participate

209

15.8

187

10.9

245

11.7

462

12.6

459

11.6

591

12.7

971

16.2

missing

24

 

52

 

24

 

34

 

40

 

7

 

58

 

Total

1347

100

1765

100

2127

100

3792

99,9

3997

100

4661

100

6049

100

 

The acceptance of VOM among the victims commutes between roughly 60 and some 70 percent.

 

However the categories "No contact to the victim possible or offender refuses participation” (put together here in one category) can tell nothing about the valuation of VOM through the victims. Admittedly it is possible that victims express their refusal by just leaving the letter of invitation as sent to them by the program operators unanswered. This interpretation is not necessary the most convincing, however: A letter can remain unanswered for quite different reasons. Only the two categories "victim accepts VOM”, and “victim refuses participation” therefore give a dependable information over the valuation of VOM through the victims.

 

Table 5a:

 

Amount of acceptance of VOM among victims –  regarding all groups  of  consenting offenders

 

1993

1994

1995

1996

1997

1998

1999

N

%

N

%

N

%

N

%

N

%

N

%

N

%

Victim accepts VOM

870

78.1

1207

79.1

1448

77.9

2599

81.3

2802

80.1

3182

78.3

3751

74.7

Victim refuses participation

244

21.9

319

20.9

410

22.1

597

18.7

696

19.9

881

21.7

1269

25.3

missing

 

 

 

239

 

269

 

596

 

499

 

598

 

1029

 

Total

1347

100

1765

100

2127

100

3792

100

3997

100

4661

100

6049

100

 

 

Table 5b:

 

Amount of acceptance of  VOM  among victims–  regarding particularly consenting juvenile and adolescent offenders

 

1993

1994

1995

1996

1997

1998

1999

N

%

N

%

N

%

N

%

N

%

N

%

N

%

Victim accepts VOM

368

77.0

100

85.5

618

75.9

1005

79.6

1150

81.4

1190

80.8

1563

73.6

Victim refuses participation

478

23.0

17

14.5

196

24.1

258

20.4

262

18.6

282

19.2

560

26.4

missing

 

66

 

13

 

92

 

171

 

131

 

128

 

357

 

Total

544

100

130

100

906

100

1434

100

1543

100

1600

100

2480

100

 

Table 5c:

 

Amount of acceptance of VOM among victims – regarding particularly consenting adult offenders

 

1993

1994

1995

1996

1997

1998

1999

N

%

N

%

N

%

N

%

N

%

N

%

N

%

Victim accepts VOM

402

78.7

258

85.4

619

79.1

1217

82.3

1254

78.9

1468

78.1

1605

75.8

Victim refuses participation

109

21.3

44

14.6

164

20.9

262

17.7

336

21.1

411

21.9

513

24.2

missing

 

108

 

32

 

113

 

293

 

272

 

283

 

407

 

Total

619

100

334

100

896

100

1772

100

1862

100

2162

100

2525

100

 

The evaluation shows an impressing high acceptance rate of VOM among victims and it illustrates that this acceptance was not an effect of the model-phase as many predicted earlier. In the contrary: It evidently consists also under every-day conditions and circumstances. However, some decline in the figures during the last year covered needs critical attention.

 

The evaluation also shows that people becoming victims of adult offenders are ready to accept VOM in approximately the same scope like victims of juvenile and adolescent offenders.

 

 

 

 

From the following figure 6 and the three affiliated tables emerges the fact that the rate of consent with the juvenile and adolescent offenders during the entire examined time period is approximately 8 percentage-points higher than with the adult offenders.

 

 

 

Table 6a:

 

Amount of  acceptance of  VOM  among  all groups of offenders, including those below the age of criminal responsibility, with regard to cases of consenting victims

 

1993

1994

1995

1996

1997

1998

1999

N

%

N

%

N

%

N

%

N

%

N

%

N

%

Offender accepts VOM

1207

92.3

1744

91.9

2078

91.9

3507

91.1

3881

91.8

4618

90.6

5710

88.3

Offender refuses participation

101

7.7

153

8.1

183

8.1

344

8.9

345

8.2

480

9.4

760

11.7

missing

 

123

 

119

 

148

 

248

 

329

 

213

 

547

 

Total

1431

100

2016

100

2409

100

4099

100

4555

100

5311

100

7017

100

 

 

 

 

 

Table 6b:

 

Amount of  acceptance of  VOM  among  juvenile and adolescent offenders only, with regard to cases of consenting victims

 

1993

1994

1995

1996

1997

1998

1999

N

%

N

%

N

%

N

%

N

%

N

%

N

%

Offender accepts VOM

934

93.8

1380

93.9

1645

92.8

2411

93.6

2588

93.8

3008

94.7

3941

91.1

Offender refuses participation

62

6.2

89

6.1

127

7.2

164

6.4

172

6.2

169

5.3

387

8.9

missing

 

53

 

78

 

88

 

95

 

127

 

87

 

271

 

Total

1049

100

1547

199

1860

100

2670

100

2887

100

3264

100

271

100

 

 

Table 6c:

 

Amount of acceptance of VOM  among adult offenders only, with regard to cases of consenting victims

 

1993

1994

1995

1996

1997

1998

1999

N

%

N

%

N

%

N

%

N

%

N

%

N

%

Offender accepts VOM

252

86.6

333

84.5

300

88.5

1025

85.4

1197

88.1

1522

83.8

1627

82.6

Offender refuses participation

39