1. CONFERENCE ON RESTORATIVE JUSTICE AND PROBATION Restorative Justice in Probation Practice: strategic steps, making the footprint André Lamas Leite, University of Porto (Portugal) Prague, 24 th September 2015 Adult criminal mediation in Portugal – an overview

2. Summary 1. Criminal Law tradition in Portugal 2. First criminal mediation project 3. Law nr. 21/2007, June 12 th 4. The results: Chronicle of a Death Foretold 5. Possible future trends 2

3. 1. Criminal Law tradition in Portugal Adult criminal mediation in Portugal – an overview 3

4. 1.Criminal Law tradition in Portugal Civil law tradition country “Carnation Revolution” in 1974 and democratization 1982 Criminal Code, 40 times amended 1988 Criminal Procedure Code Strong influence from German Law Public attorney of French tradition (Ministério Público) 4

5. 1.Criminal Law tradition in Portugal Ritualized criminal procedure with large defendants’ privileges Low tradition in ADR mechanisms in Penal Law: waiving from procedure similar to § 153a of the StPO But several examples of restoration relevance in other aspects of the Criminal Code (e.g. probation, property offenses) 5

6. 2. First criminal mediation project Adult criminal mediation in Portugal – an overview 6

7. 2. First criminal mediation project 7 2004-2007: Protocol between the School of Criminology of the Faculty of Law, University of Porto and Porto District Public Attorney Waiving from procedure Two mediators, pre-mediation and mediation sessions Mediation agreement when possible If not, the procedure would continue Principles of legality, proportionality, empowerment, absolute voluntariness, equality, mediation secrecy...

8. 3. Law nr. 21/2007, June 12 th Adult criminal mediation in Portugal – an overview 8

9. General overview 9 Mediation within the criminal procedure typical structure as in most European countries (médiation pénale in France, Täter-Opfer-Ausgleich, in Germany, strafbemiddeling in Belgium, or au β ergerichtlicher Tatausgleich, in Austria) Only during the first stage of criminal procedure (investigation – inquérito) Cases are referred to mediators by the Public Attorney as an alternative to formal charges Victim and offender may ask for the case to be referred to mediation even without the Public Attorney’s agreement

10. Mediation scope and offenses comprised within the mechanism 10 Complying with general and special preventive demands and restoring damages deriving from the offense «Restoring social peace»: redundancy Offenses against persons and patrimony punishable with imprisonment up to 5 years, dependent from victims’ pressing charges All offenses considered to be “private”, i.e., requiring charges by the victim and private indictment

11. Mediation scope and offenses comprised within the mechanism No “public offenses” (investigated and indicted ox officio by the Public Attorney) Other exclusions: Sexual crimes If the victim is aged 16 or less Certain special “speedy” procedural forms Domestic violence? Severe doubts 11

12. Mediation agreement Exclusions: Imprisonment Obligations that may endanger the defendant’s dignity Obligations lasting for more than 6 months Law nr 29/2013, April 19 th : the agreement’s contents shall not violate the “public order” Are the exclusions enough? Is it an excessive “conflict devolution” (N. Christie) to the parties? Is there a violation of the equality principle? Are we facing a buying oneself off from punishment (M. Koller) mechanism? Is it constitutional that only the Public Attorney and not a judge intervene? 12

13. Sequence 13 Signing the agreement means that the victim withdrawals the complaint and that the defendant does not oppose to it In 5 days after receiving the agreement, the Public Attorney simply controls whether it does not violate legal exclusions; no proportionality control If violated: 30 more days to remedy the illegality If illegality remains: “traditional” process is carried on

14. Sequence Who controls the agreement’s compliance? Not the Public Attorney Apparently, just the victim: if he/she considers the agreement was not complied with, he/she may press new charges within a month after being aware of the breach Secondary victimisation; reduced term for new charges; procedural problems in doing so 14

15. 4. The results: Chronicle of a Death Foretold The results: Chronicle of a Death Foretold Adult criminal mediation in Portugal – an overview 15

16. The results Effectively started on January 23 rd 2008 only in some parts of Portugal Now it covers the whole country A thorough evaluation should be presented at least by the beginning of 2011: not done until now

17. Statistics Statistics (Source: http://www.gral.mj.pt, adapted)http://www.gral.mj.pt

18. Statistics Statistics (Source: http://www.gral.mj.pt, adapted)http://www.gral.mj.pt 2008-2012: around 550.000 files opened per year Mediation agreement in 25,58% of all cases referred to this ADR mechanisms Most common offenses: bodily injuries (52,9 %), threat (11%), damage (9,4 %) and theft (8,6 %) 18

19. Chronicle of a Death Foretold Chronicle of a Death Foretold Why is mediation not working in Portugal? Ineffective and legally contradictory regulation Lack of mediation tradition and high litigation level in Southern European countries Insufficient information by the Ministry of Justice to the population in general, public prosecutors and lawyers No real stimulus for public attorneys to refer cases to mediation: their evaluation system Lawyers: fear of losing legal fees – corporate interests 19

20. 5. Possible future trends Possible future trends Adult criminal mediation in Portugal – an overview 20

21. Possible future trends Possible future trends Depending on the new Government’s interest in ADR mechanisms in Criminal Law Main amendments to the Law: Waiving from procedure and not dropping charges Real monitoring by the Public Attorney of the agreements’ compliance No supervision by the victim and no need to press new formal charges Proportionality control of the agreement and examples of obligations negotiated between parties 21

22. Possible future trends Pro-active work of information and awareness directed to the community, public prosecutors and lawyers Changing the way public attorneys are evaluated In the long-term : mentality changing, by making ADR mechanisms normal in certain offenses 22

23. Adult criminal mediation in Portugal – an overview Thank you very much for your kind attention! CONFERENCE ON RESTORATIVE JUSTICE AND PROBATION Restorative Justice in Probation Practice: strategic steps, making the footprint André Lamas Leite, aleite@direito.up.pt 23