Offense compensation

The offense resolution has elicited (formerly out of court offense resolution has elicited, ATA) is enshrined in law in Austria as an instrument of diversion in criminal law . The procedure is based on giving social conflicts with an already existing criminal law dimension (notification of an official offense ) back to the conflicting parties from the criminal justice system so that they can independently resolve their conflict with the help of professional mediation . If they succeed, the criminal law withdraws with its right to prosecute, and further formal criminal proceedings with the resulting consequences become obsolete. The aim of the reconciliation of offenses is not only to resolve the conflict between the conflicting parties, but also to restore legal social peace, instead of a mere "power intervention" by the criminal justice system. This possibility exists in both youth and adult criminal law, regulated by the Austrian Code of Criminal Procedure. The settlement of offenses is an example of a procedure in the sense of restorative justice .

Objectives

Detaining people who have committed criminal offenses in prisons not only entails high costs, but also involves numerous factors that make further criminal behavior by the person concerned more likely (e.g. being torn away from everyday work, family and previous circle of friends; stigmatization even after the Dismissal etc.) At the same time, the needs of the victims are not taken into account in normal criminal proceedings: neither the material reparation of the damage nor the restoration of the victim's feeling of security, trust or joie de vivre are considered the task of the criminal proceedings. One of the objectives of the settlement of the offense is to remedy these deficiencies with the aid of a different procedure - based on the approaches to restorative justice.

In the reconciliation of the offense, the accused are required to actively deal with their offense; that they admit to having committed the act and thereby doing wrong; that they empathize with the person concerned and begin to understand how it felt and affected them; that they apologize; that they actively seek reparation for material and immaterial damage. This assumption of personal responsibility is also intended to reduce the likelihood of future criminal behavior.

The injured person is caught in a professional mediation center, where the perception of their needs is the declared aim of the procedure. She takes an active role in the process and can define what her needs are and how these can be met. She has the opportunity to make her anger heard, in a supportive framework and with the direct cause. She can receive material and non-material reparations for the damage suffered. Through their active role, the twofold reparation and the experience of being heard and taken seriously with what they have experienced, the feeling of security, individual power to act and social trust can be restored much faster and better.

history

Model test for young people from 1985 to 1989

In 1985 a model trial of out-of-court settlement of offenses for young people in Vienna, Linz and Salzburg began, initially only for a few types of offense, e.g. B. Damage to property. The focus of the content concept was the activation of the young people concerned, the upgrading of the injured party and the effort to move the criminal justice system towards a self-image as a socially peacemaking institution. In addition, the voluntary nature of the cooperation of those affected was emphasized. The results of the model experiment showed an expansion of treatable offenses, e.g. B. minor bodily harm. Offenses in which there were no specific persons as victims, but z. B. Companies, proved to be unsuitable. In 1989, a legal anchoring in juvenile criminal law (§§ 6-7 JGG) was created, and out-of-court compensation for offenses was offered throughout Austria. Until a main hearing was opened, the youth public prosecutor's office or the judges could assign suitable cases to the out-of-court settlement.

Model test adults 1992 to 1999

Based on the positive experience with young people, a model test for adults was also carried out from 1992 onwards. In 1999, as part of a comprehensive anchoring of diversion in criminal law, out-of-court compensation for offenses for adults was regulated and has since been offered throughout Austria.

Since 1999

With the reform of the Code of Criminal Procedure in 2008, the victim's position was further upgraded under criminal law. The "out-of-court settlement of offenses" was renamed "offense settlement"; Conflicts can now no longer only be settled outside the court, but also within the framework of a formal procedure. The settlement of the offense is handled by the Neustart association ; the services of the association are an outsourced area of sovereign administration and regulated by a general contract between the Federal Ministry of Justice and the Neustart association.

Legal bases and types of offenses

Schematic representation of the procedure for reconciliation of the offense

The most important legal bases for the settlement of offenses are the regulations on diversion of the Austrian Code of Criminal Procedure (StPO) in §§ 198 - 209b, as well as §§ 29, 29a and 29b of the Probation Assistance Act. The public prosecutor's office is primarily responsible for referral , but the judges can also initiate a settlement of the offense until the end of the main hearing. In juvenile criminal law, all offenses with a youth penalty of a maximum of five years (this corresponds to a penalty of ten years in adult criminal law) can be assigned to offense compensation. In the case of an assignment by the court, the upper penalty limit does not apply at all. Mediation in the course of the reconciliation of the offense is handled by the Neustart association throughout Austria .

The Code of Criminal Procedure (Section 204) defines the prerequisites for a successful settlement of the offense:

Willingness of the suspect to stand up for the crime and deal with the causes of the crime
Compensation for the direct damage caused by the act and / or other compensation for the consequences of the act
Willingness of the suspects to refrain from behavior that led to the act in the future and, if necessary, to assume obligations in this regard
Consent of the person injured by the criminal act (in adult criminal law)

As far as the structure of the offense is concerned, slight bodily harm is the most common reason for referring to offense according to Section 83 StGB. Other offenses that are assigned to compensate for the offense include serious bodily harm (Section 84 StGB), property damage (Section 125 StGB), dangerous threat (Section 107 StGB), coercion (Section 105 StGB), brawling (Section 91 StGB).

Components and results of an offense settlement

The mandate for mediation in criminal law is not given by the immediate parties, rather the parties are offered the option of mediation by the criminal justice organs. The actual mediation process is therefore preceded by a pre-mediative phase in order to provide information about the legal situation and procedures, to sound out the interests and abilities of those involved and to ensure their acceptance. In the course of mediation, the mediators often first meet individually with each of the parties and, as soon as the appropriate conditions have been created, bring them together for accompanied discussions. There are a number of different methods of mediation in offense compensation.

Mediation in criminal law has to do with highly escalated conflicts that have already been reported to the police. Mediation in criminal law also has to do with official offenses, that is, offenses that the criminal justice system pursues on its own initiative, regardless of whether the person concerned so wishes or not. The public prosecutor's office also assigns roles (who is accused? Who has been harmed ?, tends to be "perpetrator" / "victim"). In addition to mediation, there is a conflict in which the criminal law dimension is visible like the tip of an iceberg, but the far larger part, the social components of the conflict, lie below the surface of the water. Highly escalated conflicts are characterized by the fact that the factual level can only be processed after the emotional dimensions (insults, shame, anger, etc.) of the conflict have been dealt with and solutions for the incident and for the future are independently designed by the parties.

Some examples of results in the course of a settlement:

Youngsters steal and ruin an old moped. During the reconciliation of the offense, they learn that the moped belonged to a newspaper delivery person who earns very little and needs the moped for his work. The attitude of the youngsters shifts from “it was a cool game and already an old moped” to dismay. They put together for a replacement moped.
During an argument in a partnership, he snatched her cell phone away and bruised her in the process. In the course of the reconciliation talks, she says that it is important to her that he empathizes with what it meant for her to be forced to do something with physical violence. When that finally bears fruit after a few unsuccessful attempts, she also wishes, as compensation, that he should think about something that she enjoys (not that he do something that he has already been suggested / prescribed). It will ultimately be a weekend trip together.
In a catering company, the instructions of the stressed cook are misunderstood by the assistants who do not speak the same mother tongue as the cook. The cook threatens an assistant with a knife. One result of the offense is that the kitchen organization is changed.
Two tenants clash because one party leaves the stroller in the aisle and the other feels disabled. One result of the settlement of the offense is that one party gives the other party their cellar compartment, as the other party did not have one.

Experiences and success rates

Model test for young people 1985 to 1988

Already in the first model experiment, 1985 to 1988 with young people, it was shown that it was not difficult to get young people to participate in efforts to resolve conflicts. Finding a solution to the conflict to which all those involved were able to agree was also successful in the vast majority of cases. The most plausible seemed to the young people to come to an agreement with those directly injured by them, which is proven by the higher rate of positive conclusions from conflict settlements that did not resort to abstract services by young people for “the community” or “for their own good”. The victims benefited most from the conflict resolution model experiment in the Austrian judiciary: in reality, compensation for victims has by no means remained a minor matter. In addition to the non-material compensation (such as apology) for the injured party, material compensation was the focus of the model experiment and actually took place in full in the majority of cases. 79% of all positive settlements of conflicts with material damage included monetary compensation. The summary of all model locations showed the following result: In almost 80% of the cases, the parties involved came into contact, and in a good 90% of these cases, a completely successful settlement was finally reported to the court. In only 5% of the cases, the victims refused contact.

Model test adults 1992 to 1999

As with the model experiment for young people, it became apparent relatively quickly that conflict resolution in adult crimes could have a positive effect. Surprisingly, both model tests showed the high level of acceptance of this instrument by the injured parties. In general, it can be said that the injured party had a much greater need for reparation than the need for sanctions. The main interest of the injured party lay in the immaterial and material compensation, i.e. in the compensation by the accused and in the accused's knowledge that they had acted illegally. In the case of offenses that can be easily treated in offense, there was a clear shift in the course of the model experiment from pure property offenses to offenses against life and limb (such as bodily harm). The model experiment for adults also quickly showed its effectiveness, as in 80 to 85% of the assigned cases a positive balance between the injured and the accused could be achieved.

The long duration of the model experiment also made it possible to conduct a survey on relapse rates. A quantitative study from 1999 formed a comparison group with the data from the general relapse statistics for the completed cases in the offense. The observation period was three years, and the study focused on adults and minor assault offenses and compared recidivism after a dispute settlement with that after a judicial fine. A total of 361 conflict settlement cases and 7,952 court cases were analyzed. The comparison showed a recidivism rate of 14% after a dispute settlement and 33% after a fine based on a formal judicial process. However, it was not possible to control a key factor, namely the so-called selection effect: it is possible that primarily those cases are assigned to the offense settlement where it is assumed that they have better qualifications for a positive conclusion.

2008 study

A new study from 2008 showed that the vast majority of those who participated in a reconciliation, namely 84%, were not convicted or convicted again within an observation period of two and a half to three and a half years. From the point of view of the social workers, a good two thirds of the compensation interviews were positive; these positively assessed conflict settlements also showed better legal probation (86%), i.e. no new convictions. The public prosecutor's offices and courts closed almost three-quarters of the proceedings with one suspension . The relapse rates after the offense were compensated were particularly low among adults, women and the better educated and were 10%. In the case of partnership conflicts - the second most common constellation in the settlement of offenses - the legal probation of 89% was also above average.

A comparison with the general re-conviction statistics showed that the reconciliation of offenses performed particularly well in terms of recidivism rates. For example, after simple bodily harm, 41% of those convicted by the court, but only 15% of the offense clients relapsed. It should be taken into account here that the offense - also in comparison to other types of diversion - was increasingly assigned to older, better educated and also less previously convicted clients as adults. However, the positive assessment of the compensation for offenses also remains in the comparison of the recidivism rates of relatively homogeneous groups (such as adults who have not previously been convicted after simple bodily harm offenses).

literature

Haider, A. / Leirer H. / Pelikan, C. / Pilgram, A .: Settling conflicts instead of punishing them! About a model experiment in the Austrian juvenile justice system , Association for Social Criticism, Vienna 1988.
Hofinger, Veronika / Neumann, Alexander: Legal biographies of NEUSTART clients: Legal probation after an out-of-court settlement, charitable service and probation assistance , research report by the Institute for Legal and Criminal Sociology , Vienna, December 2008.

Schütz, Hannes: Recidivism after an out-of-court settlement of offenses in adults, in: Österreichische Richterzeitung 1999, pp. 161–166.

Web links

Individual evidence

↑ Pelikan, Christa. Victim-offender mediation in domestic violence cases-a research report , fn1
↑ Hofinger, Veronika / Neumann, Alexander: Legal biographies of NEUSTART clients: Legal probation after out-of-court settlement, charitable service and probation assistance, research report by the Institute for Legal and Criminal Sociology, Vienna, December 2008, p. 42.
↑ Pelikan, Christa / Pilgram, Arno: The "success statistics" of the model experiment, in: Haider, A. / Leirer H. / Pelikan, C. / Pilgram, A .: Regulate conflicts instead of punishing them! About a model experiment in the Austrian juvenile justice system, Association for Social Criticism, Vienna 1988, p. 77.
↑ Pelikan, Christa / Pilgram, Arno: The "success statistics" of the model experiment, in: Haider, A. / Leirer H. / Pelikan, C. / Pilgram, A .: Regulate conflicts instead of punishing them! About a model experiment in the Austrian juvenile justice system, Association for Social Criticism, Vienna 1988, p. 78.
↑ Pelikan, Christa / Pilgram, Arno: The "success statistics" of the model experiment in Haider, A. / Leirer H. / Pelikan, C. / Pilgram, A .: Regulate conflicts instead of punishing them! About a model experiment in the Austrian juvenile justice system, Association for Social Criticism, Vienna 1988, p. 66.
↑ Schütz, Hannes: The recidivism after an out-of-court settlement of offenses in adults, in: Österreichische Richterzeitung 1999, pp. 161–166.
↑ Schütz, Hannes: The recidivism after an out-of-court settlement of offenses in adults, in: Österreichische Richterzeitung 1999, pp. 161–166.
↑ Hofinger, Veronika / Neumann, Alexander: Legal biographies of NEUSTART clients: Legal probation after an out-of-court settlement, charitable service and probation assistance, research report by the Institute for Legal and Criminal Sociology, Vienna, December 2008, p. 75.
↑ Hofinger, Veronika / Neumann, Alexander: Legal biographies of NEUSTART clients: Legal probation after out-of-court settlement, non-profit performance and probation assistance, research report by the Institute for Legal and Criminal Sociology, Vienna, December 2008, p. 76.

[1] Pelikan, Christa. Victim-offender mediation in domestic violence cases-a research report , fn1

[2] Hofinger, Veronika / Neumann, Alexander: Legal biographies of NEUSTART clients: Legal probation after out-of-court settlement, charitable service and probation assistance, research report by the Institute for Legal and Criminal Sociology, Vienna, December 2008, p. 42.

[3] Pelikan, Christa / Pilgram, Arno: The "success statistics" of the model experiment, in: Haider, A. / Leirer H. / Pelikan, C. / Pilgram, A .: Regulate conflicts instead of punishing them! About a model experiment in the Austrian juvenile justice system, Association for Social Criticism, Vienna 1988, p. 77.

[4] Pelikan, Christa / Pilgram, Arno: The "success statistics" of the model experiment, in: Haider, A. / Leirer H. / Pelikan, C. / Pilgram, A .: Regulate conflicts instead of punishing them! About a model experiment in the Austrian juvenile justice system, Association for Social Criticism, Vienna 1988, p. 78.

[5] Pelikan, Christa / Pilgram, Arno: The "success statistics" of the model experiment in Haider, A. / Leirer H. / Pelikan, C. / Pilgram, A .: Regulate conflicts instead of punishing them! About a model experiment in the Austrian juvenile justice system, Association for Social Criticism, Vienna 1988, p. 66.

[6] Schütz, Hannes: The recidivism after an out-of-court settlement of offenses in adults, in: Österreichische Richterzeitung 1999, pp. 161–166.

[7] Schütz, Hannes: The recidivism after an out-of-court settlement of offenses in adults, in: Österreichische Richterzeitung 1999, pp. 161–166.

[8] Hofinger, Veronika / Neumann, Alexander: Legal biographies of NEUSTART clients: Legal probation after an out-of-court settlement, charitable service and probation assistance, research report by the Institute for Legal and Criminal Sociology, Vienna, December 2008, p. 75.

[9] Hofinger, Veronika / Neumann, Alexander: Legal biographies of NEUSTART clients: Legal probation after out-of-court settlement, non-profit performance and probation assistance, research report by the Institute for Legal and Criminal Sociology, Vienna, December 2008, p. 76.