Draft2.18 September RESTORATIVE JUSTICE AND VICTIM OFFENDER MEDIATION IN ROMANIA1 Doina Balahur Introduction The analysis of regulations directing and guiding restorative justice acquires meaning only if it is interpreted within the wider context of the transformations of the modern law and mainly of the modern world itself. It is not the aim of this chapter to make such an investigation, but the need for such interpretation must at least be recognised. This is because it comprises the reference point against which it is possible to appreciate not only the rapid growth of the new alternative dispute resolution practices, and especially of restorative justice, but also the ’why’ of the of the substantial ground it has gained within the last decade, even in the former communist countries. During this time restorative justice has attracted the attention of the leading interdisciplinary scientific research – sociological, juridical and criminological – at both the European and the international level. It owes its central status to the potential that its values, principles and programmes have as the basis for an alternative paradigm of justice, of conflict resolution and of safer communities. In his recent book, Ivo Aertsen and his colleagues concluded that these virtues were so well recognised that it is possible to speak today about the institutionalizing of Restorative justice (Aertsen et al, 2006). Nobody doubts today that modern law has lost its ’empire’, a consequencence of a long list of discontent about law’s capacity to deliver In Aertsen, Ivo and David Miers (Eds) (forthcoming) Restorative Justice : Evaluative Findings in Europe, Bremen, Polizei und Wissenschaft. 1 2 on even its most basic claims for legitimacy. Among these is the striking and repated failure of the modern system of formal justice to keep its promise to be an objective and fair means of conflict resolution (Balahur and Balahur (2005). This observation is supported by a large body of research, undertaken from the perspective of a wide range of social and legal disciplines, which has signaled the emergence of less formalized models of social and political crime control and the pluralization of the justice providers. The explanations that have accompanied these changes vary appreciably among different disciplines and scholars. Some consider that restorative justice’s recent visibility is closely associated with the end of one of the ’foundational myths of the modern society: the myth that the sovereign state is capable of delivering ’law and order’ and controlling crime within its territorial boundaries’ (Garland, 2001: 109). Echoing Garland’s ideas, other authors consider that ’we are now observing a shift from adjudication to administration’ (Mayerhofer, 2000: 111), and, I would add, of justice in community and by community. Other analysts appreciate that the ’network society’ (Castells: 2000) brought with it a legal pluralism characterized by ’private regimes and neo-spontaneous law’ (Teubner 2004: 71-86) and by a more negotiated procedure of conflict resolution. The changes that are the subject of a number of different studies and research projects are occurring right before our eyes. An empirical comparative analysis of the state of art in different legal systems and legislative provision, from Asia to Europe and from America to Australia, would undoubtedly observe, at a first glance, that almost everywhere ’reform’ is the all encompassing strategy under which the major changes in the justice systems are undertaken. This strategy aims at a better quality of justice and its is frequently closely connected to the implementation of 3 non-adversial practices of conflict resolution and ’the institutionalization’ of alternative dispute resolution. For example, the Japanese Ministry of Justice, 2 through its specialized agency, the Justice System Reform Council (JSRC), suggested in 2004 that the following three issues were the priority of the reform of the justice system: construction of a justice system that meets the needs of the people; reform of the judicial community to support the justice system and the establishment of a popular base (participation of the general public in the justice system) should be the main issues of reform. (…) During the 161st Diet Session (2004 Extraordinary Diet Session), a law related to ADR (alternative dispute resolution) and other laws were enacted.’ In the United States of America the work of Gordon Bazemore and Mara Schiff likewise illustrates the pervasive role of restorative justice, in particular in the results of the five year research project on juvenile justice reform (2005). We see these changes also at work within Europe. Within the processes opened by the Treaty of Amsterdam, aiming to build the European area of Freedom, Justice and Security, both Member and candidate States have been obliged to change and to adapt their national legislation in order to improve acccess to justice, integrate provisions regarding the protection of the victims of crimes, 3 and also promote alternative dispute resolution. According to the Directive of the European Parliament and of the Council in 2004,4 access to justice ’should include promoting access to adequate dispute resolution processes for individuals and business, and not just 2 3 4 The Japanese Minister of Justice (2004): Ensuring the results of justice system reform take root http://www.moj.go.jp/ENGLISH/issues/issues01.html. Council Directive: 2004/80/ECof 29 April 2004, relating to compensation to crime victims. The European Commission (2004) : Directive of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters, COM (2004)718. one of the effects of the ’deregularization of the modern world’ (Garland: 2001) can be observed at the level of the deep changes (reforms) that the justice and legal systems are experiencing all over the world. Taking place in a time of deep social transformation. both the modern content of justice and of a legal system (especially regarding the observance and protection of human rights) and also the post-modern modalities of justice that are rooted in civil society. mainly by promoting less formalised forms of social action and control. Both material and immaterial reparation should be aimed at restoring the balance between the victim and society. has also been developed through the Belgian initiative to set up a European Network of contact points for restorative justice. The concept of access to justice. This aims. this is a part of a merely post-modern project. .10.’ .2002]. especially in the view of better protection of the victims of crimes. one might talk about a wider project of reform. first. Secondly it seks to restore trust among people. This aims to establish. For the former communist countries in Central and Eastern Europe. these reforms have thus been simultaneously confronted with a set of double range transformations: to democratise their life and also to (post) 5 Initiative of the Kingdom of Belgium with a view to adopting a Council Decision setting up a European Network of national contact points for restorative justice [Official Journal C242 of 8. 5 The proposal emphasizes that ’restorative justice implies that the needs of the victims are prioritized.4 access to the judicial system. reform in the former communist countries is a double reform.’ As noted. Consequently. within the framework of a multifaceted process. at rebuilding entire political and economic institutions (the modern reform). cultural tradition and sometimes in the soft-law procedures of conflict resolution practices. That is why any inquiry into alternative conflict resolution in the former communist countries. the reform. especially of the justice system (Balahur. 1 1. Littlechild and Smith. Like these reactive strategies. it becomes possible to appreciate that it is only the synergy of the processes involved in the ‘double reform’ that could bring about the radical changes that other countries passed through over several hundreds of years. As I have observed elsewhere. ombudsman.5 modernise it in line with the major social movements and values in Europe and the global society. has been a lengthy process. is always part of a wider analysis that aims to identify the main directions of the changes to both the institutional and legal framework of these societies and to the everyday life of thoe people and communities. regardless of the label used. 2004). conciliation. all of the major transformations within the Romanian justice system have been the product of European and international pressure (Balahur. restorative practices. and also on results of other enquires carried out in former communist countries.1 Legal Description Legal base 1. and so on. arbitration. Based on the conclusions I have arrived at in my own reserch on the process of reform. forthcoming).1.1 Primary Legislation (a) Some theoretical considerations As an important facet of social transformation. of what I would call the ways of doing justice in Romania. mediation. hindered by severe delays by comparison with other Eastern European countries. the existing regulations on alternative dispute resolution have been adopted either within the framework of European integration or by virtue of the . the other is a ’top-down’. but VOM was almost always introduced by spontaneous bottom-up processes promoted by social and professional groups and/or movements’ (Mestitz and Ghetti. both directions have been closely connected mainly to the reform of the juvenile justice system.6 From this point of view.185).. the Romanian authorities have agreed to changes in the administration of justice that have developed. Romania is not an exception. It was four years before an obligation to use mediation became law. One is a ’bottom-up’ perspective. Mestitz and Ghetti observed that ’in judicial systems any reform is introduced topdown through new norms. the development and implementation of restorative justice practices in Romania could be analyzed from two linked perspectives. in which they are framed by different policies and legal regulation.. 2002:. 2005: 17). . that sees these practice promoted by civil society and supported by academic groups. Like other social-legal institutions. In 2002.6 pressure of the Council of Europe and other international organizations. at least initially. So far as penal law in Romania is concerned. those monitoring the EU Accession Process in respect of Romania’s judicial capacity recommended to the Romanian Government and Legislature the need ’to reduce the backlog of cases through improved case management. without their influence. 6 It is the case of the alternative measures and strategies (probation) promoted initially by a project implemented by the Social Alternative foundation in Iasi in partnership with the National Association of Magistrates (branch Iasi) and also the case of the Juvenile Courts promoted through a project by the same partners.) introduction of alternative dispute resolution’ (Open Society Institute. including (. The introduction and diffusion of alternative justice strategies in Romania followed the common model identified in the countries of the European Union. It has often been the case that within a process of reform. . the two concepts are considered (or at least used) as if they were synonymous. and also ’community and democracy or at least the competence to be democratic’ (Braithwaite 2002: 132). I would like only to clarify the meaning of the concepts that I will be using in this analysis. with victims' and offenders' families and friends participating in collaborative processes called ’conferences’ and ’circles’ (McCold and Wachtel. Sometimes. In a minimalist conception. A maximalist conception considers restorative practices as a way of (re)building ’the networks of the organized reciprocity and civic solidarity’ (Putnam 1995: 20). in the 1990s restorative justice broadened to include communities of care as well. from a maximalist point of view.7 Meanwhile. I do not intend to enter this debate here and now.) and civic participation through participatory learning and decision making’ (Wachtel and McCold 2000: 118). 2004). as the comparative analysis and research developed by the European Forum for Restorative justice observes (Aertsen et al.. . 2003). restorative justice may be understood a new way of looking at criminal justice that focuses on repairing the harm done to people and relationships rather than on punishing offenders (although restorative justice does not preclude incarceration of offenders or other sanctions).. I would like to make a brief distinction between restorative justice and victim-offender mediation. Originating in the 1970s as mediation between victims and offenders. as a strategy for ’developing social capital (. the need to improve and make visible the position of the victim within the criminal justice system has also contributed to the promotion of alternative dispute resolution practices under the form of restorative justice and victim-offender mediation programmes. At this point. It could also be seen. domestic violence (restorative justice).. in different proportions. there are ADR provisions in civil and commercial matters (conciliation and mediation). However.) before making a legal . Despite the fact that it could have (indirectly) restorative effects. ’in commercial matters (.. a compulsory procedure for conciliation. Dispositions regarding the resolution of the commercial conflicts. (b) The legal framework I will briefly review the principal legal framework that has been developed in Romania to regulate the alternative forms of dispute resolution. it represents merely a transfer of the ’transaction’ in the civil law to the criminal conflict resolution. and to other types of conflicts as well. This regulates in a newly introduced Chapter XIV. the first step in the regulation of ADR in Romanian law was made in 2000 through Government Ordinance nr. having at one end the court system of dispute resolution and at the other informal community based strategies for dealing with conflicts.8 Victim offender mediation is more specific. characteristics drawn from both extremes.138 for the completion of the Civil Procedural Code. As an alternative to the adversarial system of court-based conflict resolution it aims to repair harms by means of interpersonal strategies supported and falcilited by a third person (the mediator). either under as restorative justice practices or as mediation. an approximation to a court based resolution.720(1). In short. According to art. work relationships (conciliation) and in criminal matters (victim-offender mediation). both restorative justice practice and victim–offender mediation could be seen on the same continuum. Between these two lies the wide variety of forms of alternative dispute resolution that display. VOM resonates with the minimalist approach to restorative justice. Chronologically. 7 For the moment.’ Conciliation in these cases may be undertaken. for mediation in cases of domestic violence. Part I in 29 of May. In response to an important change of direction in the promotion and protection of children’s rights.8 Article 19 states that ’at the request of the parties.217/2003 regarding Domestic Violence provides. neglect. 2007). in Chapter V (art. the Centre for the Mediation of Commercial Disputes (CMCD) which. the law has ben constantly adjusted in order to prevent and to curb abuse. and violence against children and women. emphasizing the potential role that restorative justice could have for rebuilding their relationships. a new law regarding domestic violence adopted in 2003 provides alternative ways of dealing with conflicts among family members. Article nr. according to art.20.’ Based on this disposition. In particular.9 complaint. either by a meeting of the family (the Family Council) or by an authorised mediator. the Romanian Chamber of Commerce established an independent body. Monitorul Oficial Partea I nr. 2003). cases of domestic violence can be referred to mediation. 367 din 29 mai 2003 (Oficial Monitor of Romania. For this purpose the competent persons to deal with such cases will counsel the parties. this is the only legal regulation on which restorative programmes and practice could be based.19-22).217/2003 Regarding the Prevention of Domestic Violence. Law nr.21 in Law 217/2003 defines the Family Council as ‘an asociation without legal 7 8 Law nr. . in May 2003 published Rules of Mediation Procedure. Since 2000 domestic violence against children and women has become a priority closely associated with the reform of the child welfare system (see Balahur 2001. the parties in conflict will try to resolve their litigation through conciliation. 10 and law nr.10 personality and patrimonial aim.783 din 11 decembrie 2001. The initiative to run mediation through the family council belongs to one of the famly members or to the familial social worker.restorativejustice. 9 10 International Institute of Restorative justice. Law nr.20 (2) expressly states that the completed mediation procedure does not affect the criminal trial.217. 678/2001 (revised) regarding the Prevention of the Trafficking of Human Beings. art. That is so. It has often been remarked that a range of criminal justice initiatives have become associated with restorative values and principles because of the processes they use to respond to and repair the harm caused by crime. . http://www. as they recover from the crime and proceed through the criminal justice process.org/intro/ Monitorul Oficial.’ In fact law 217 combines two different ADR practices: traditional mediation and family group conferencing.9 In Romania. in the case of programs designed to provide services to crime and trafficking victims. two statutory provisions have such restorative justice connections: law nr. In either case. ADR research and evaluation typically characterises this as ‘a double track approach’ as it meets restorative values and principles but leaves open recourse to the formal trial. Nevertheless. though without calling it such. the conciliation provided for by this procedure. The law on domestic violence does not however regulate mediation procedure nor clearly specify who may be a mediator or which organizational body is entitled to authorise the mediators. which involves the family members in conflict and a family council can readily be recognised as a variation on one of restorative justice’s core practices. for example. Partea I. formed by the family members who have full legal capacity according to law. nr. 15 The Romanian legislator chose an all encompassing legal framework within which the following matters are regulated: the profession of mediator.13 the Council of Europe. 2 July. Partea I. and the provision of financial support and free legal assistance to engage the criminal justice process.Council of European Union Directive relating to Compensation to Crime Victims. 13 Council of European Union framework decision on the Standing of Victim in Criminal Proceedings adopted on 15th of March. 14 Council of Europe Recommendation Nr.14 and the UNO. nr.211/2004 opens the possibility that crime and trafficking victims will benefit from mediation services. and the types of conflicts (civil. This new law is closely bound to the values and principles containd in the various recommendations on restorative justice declared by the EU.13 mentions that the victims of crimes and trafficking benefit also by the protection measures regulated by the Law 217/2003 regarding the Prevention of Domestic Violence. Although it does so indirectly. 2004.12 (c) Legislative authority In May 2006 the Romanian Parliament enacted the Law regarding the Mediation and the Regulation of the Profession of Mediator. It was adopted within the framework of the negotiations for accession to the EU as part of the obligation to implement the acquis communautaire. . 11 Both contemplate a duty to establish programs for free psychological counselling and recovery from the crime or the trafficking.R(99)19 on Mediation in Penal Matters. 2004. 11 12 Monitorul Oficial .505 din 4 iunie. 2001. commercial. family and criminal) that may be referred to mediation. Art. the rights and responsibilities of the mediator. Article 13 in law nr. mediation procedure. adopted on 29th April 2004. A European Code of Conduct for Mediators launched at the Conference in Brussels .11 211/2004 regarding the Protection of the Victims of Crimes. ro.12 The two main purposes of the law of Mediation. The Memorandum also affirms the obligation to harmonize Romanain law with the relevant ADR European standards and regulations.. . five are focused on the regulation of the profession. http://www.16 is to promote ADR strategies in order to better satisfy the interests of the parties and to reduce the numbers of cases that with which the courts have to deal. whether the effects of such a relationship could influence the mediation. which is by defintion almost inevitable in these cases. mediators’ rights and obligations. Of the seven chapters of the law. and will decide. 2002. if under such circumstances. An attempt to integrate it within current ADR conceptions shows that it falls within a narrow minimalist approach far removed from the values and aims of restorative justice. if the parties do not have a such a relationship. Romanian Ministry of Justice. The law deliberately avoids reference to any notions of healing or of the the reparation of the harm. as the Memorandum of the Romanian Minister of Justice stated. but close to the values of traditional court procedure. (d) Mediation: definition and general conditions The Romanian law of mediation does not have an explicit philosophy. Economic and Social Council. mediation is appropriate or not.just.’ My question is. what is left that is amenable to mediation? 15 16 UNO. aiming merely to legitimize and empower existing practice and the mediators’ profession. and the legal and educational qualifications required to become a mediator. the mediator will determine whether there is between the parties an abusive or violent relationship and if so. Basic Principles on the Use of Restorative justice Programmes in Criminal Matters. July. The section in Article 66 that deals with mediation in family matters states that ’…during the mediation procedure. Both legal and natural persons have the right (art. 17 According to Article 59.4 (3)) to resolve their disputes through mediation. both outside and within the compulsory procedures of the informal resolution procedure that the law envisages. As a general proposition. . within the conditions of neutrality.). the law provides for a wide range of disputes to be referred to mediation. consumer protection matters..17 So defined. mediation is an alternative to the court system for civil. mediators do not have the power to decide the content of the agreement that the parties will reach. image etc) cannot constitute the object of mediation. the agreement at which the parties arrive can be submitted for checking either to the public notary in order to authenticate it or to the court for approval. so contributing not only to the implementation of ADR but also to the increase in the quality of the justice that is provided by the formal justice system.13 Chapter 1 of Article 1 defines mediation as ’an optional way of informal conflict resolution with the support of a third person as mediator. give up to (the right to legal personality.. or otherwise by breach of the contractual terms. According Article 2. However. impartiality and confidentiality (. Such provisions could have an substantial impact on the courts’ case loads. but they can counsel them to check its legality according to the procedures set up by Article 59. Mediation represents an activity in which there is a public interest. In the exercise of their competencies.. family and criminal proceedings. personal rights and any other rights from which the parties are not legally entitled to . can also be referred to mediation. commercial. to identity. They may also decide to refer the case to mediation even where the trial has begun. such as personal injury or property damage caused by faulty products or services. (d) no medical condition that would compromise the applicant’s ability to conduct mediation. (e) no criminal record and a a good reputation. Article 6 provides thst the obligation to acknowledge the possibility that the parties may refer their dispute to mediation rests with the judicial and arbitration bodies.14 A core value of mediation is the equal treatment of and non-discrimination between the parties during the entire process. (b) a degree. Authorized mediators are registered by the Council of Mediation on the list of the . the Romanian law on mediation provides that several conditions must all be met by those who wish to be authorized as mediators. (f) completion of the training courses for mediators and (g) is authorized as mediator according to thse provisions. They are in addition required to advise the parties to consider the possibility. As a general condition mediators need to have a higher education degree. In their overview and comparison of VOM in 15 European countries. The professionalization is acquired through the training courses delivered by specialized providers of education. (d) Legal conditions. themselves licensed according to law (art. The Romanian law lies between these two general European trends. These are (Article 7): (a) full legal capacity. education and recruitment of mediators. Unlike legislation in other European jurisdictions (Miers and Willemsens 2004. (c) at least 5 years’ professional experience.9). A second minor orientation was the recruitment of both inexperienced mediators and experienced professionals who are often employed as social workers in public services (Mestitz and Ghetti 2005: 15). Mestitz and Ghetti noticed a major trend to recruit qualified experienced mediators and to provide for more or less short training periods. Mestitz and Ghetti 2005). Provisions of this kind raise. their own financial position (art. If mediation is paid for by the parties.26). The list is published in the Official Monitor of Romania. And Law 217/2003. (e) Mediators’ activities. even where the mediation fails to reach an agreement or when the parties abandon the process before it is completed. In commercial or civil conflicts. and the right to seek an honorarium. a service provided only to those who can afford it. whose own specialism might generate a better (more cost – effective) outcome. and also to have their expenses reimbursed (art. negotiated and decided together with the parties. Among their most important rights are the right to inform the public about the mediator’s activity. The law also provides that the parties are obliged to pay the mediator’s honorarium and expenses. if need be. in my opinion. It regulates in a special chapter mediators’ rights and responsibilities. why should the parties prefer mediation where they have at their disposal the conclilation and arbitration procedures and also an informal procedure even during the trial in court (transaction). rights and responsibilities Unlike other European countries the Romanian law on mediation is focused mainly on the regulation of the status of the profession of mediator. taking into consideration. In this last case the parties are obliged to pay a pro rata sum. from the outset. Part I.15 official mediators. which provides for restorative justice delivered by the . with due respect to the principle of confidentiality. it will be. Why would a family that is experiencing difficulties in its members’ relationships with one another pay for a mediator instead of a therapist. and probably a preferred strategy to avoid the court and its sanctions.46 (f)). important questions regarding access to justice. it is difficult to find any advantage in paid mediation to the court system. the Netherlands). mediators are required to ensure that the parties understand the procedure in which they will be involved. Mediators have to ensure both their impartiality and a state of ’permanent equilibrium’ between the parties (art. in criminal matters. especially in criminal and family matters. Luxembourg. whereby the cost of mediation is paid for by the parties. In Poland the state pays a fix amount per case. but only if the parties agreed to this in writing at the outset. by the Ministry of Justice.29). mediators cannot be called as witnesses regarding the facts they have learned during the mediation (art. could equally prove more efficient and definitely less costly. togther with the limits and the effects of the mediation (art. Mapping Restorative Justice: Developments in 25 European Countries (Miers and Willemsens 2004) showed that in the countries analyzed. Spain. the mediator can be a witness. As an exception to this rule. Similarly in criminal matters. and local government (for example. mediators are liable to be witnesses in respect of any facts of which they became aware . Belgium. Italy. 32 and 37 (1)).16 family council in cses of domestic violence. appears to be unique in Europe. This arrangement.30). of the other people involved in mediation procedure (art. The law also imposes a duty of confidentiality regarding the information and the documents that the mediator has received during the process. The European Forum for Restorative Justice’s publication. save the suspect’s desire to escape the criminal sanction. if need be. Finland. Public Prosecutor. Among their professional obligations. They are required to be diligent and to support the parties in arriving at a mutually advantageous agreement. At the same time. and.37). mediation in criminal cases is financed mainly from public sources. However. 37 (2)). fines from 50 – 500 lei (Euro 14-139). The first. the offer of mediation is considered unaccepted and the process is closed (art. and charactised by a generalized corruption. invite the other to participate. The disciplinary sanctions vary according to gravity of the infringement. (e) The mediation procedure The mediation procedure has. When only one party asks for mediation services.(art. If the other party explicitly refuses the invitation or does not sign the contract after having been invited twice. (d) representation of one of the parties within a judicial or arbitration procedure dealing with the same matter as the case under mediation. The letter of invitation will establish a term of maximum 15 days within which to accept. While it insists on the voluntarily nature of mediation. All in all. from written warnings. Mediators are liable for their conduct during the mediation. four stages.43 (1). (c) refusal to return the documents provided by the parties. to the temporary (one to six months) or permanent withdrawal of the mediator’s authority (art. at that party’s request. according to law. (e) other conduct that could infringe professional ethics. the weakness of the duty of confidentiality could raise serious problems. (b) refusal to answer to the judicial authorities in cases regulated by law. takes place before the mediation contract is concluded. the preliminary procedure.17 before becoming a mediator in the specific case. For Romania especially. Article 38 specifies a number of matters that may give rise to disciplinary liability: (a) breach of the duty confidentiality.39). the mediator will. (2) (3)). It aims to bring the parties within the mediation procedure. to ask for a mediator’s services. as a corporate society. the obligation of confidentiality is weak as long as the sanction for its infringement is disciplinary liability. . 43 (4)).18 the law nevertheless provides that mediators may make any other legal approach that they consider useful for inviting the parties to the mediation process. Article 55. and cannot have a solution imposed on them by the mediator. provides that where the matter gives rise to difficult or controversial legal issues. the process resembles an informal trial. The contract must specify a number of matters. the subject matter of the dispute. The parties have the right to be assisted by a lawyer (or by others). the mediator. their obligation to pay the honorarium and the expenses occasioned by the mediation procedure.45). their agreement to respect the rules of mediation. which must be in written form. may ask for the point of view of an expert in the field. can begin. The contract has to be Once the contract is concluded. the mediation activity. and their agreement regarding the language in which the mediation will be carried out (art. The conclusion of the mediation contract. subject to absolute nullification if it does not. the mediator’s obligation to explain to them the principles. The mediation process is so deeply embedded in the . concluded according to law. while properly oberving the other provisions governing its use (art. having obtained the parties’ agreement. the parties’ declaration that they freely accept the mediation. constitutes the second stage. Developed as an analogue to court procedure. By Article 50(1) the mediation process is based on the parties’cooperation and on the special communication and negotiation techniques and methods used by the mediator. for example. The mediation process cannot be carried out before the contract has been signed by the parties. These are the identity of the parties. the third phase. the effects and the rules of mediation. It can be submitted either to the public notary for authentication or to the court for approval (art. the mediator must write a note that is signed by the parties or their representatives. reconciliation and the rebuilding of the couple’s relationship. holding out the possibility of restorative justice.1 Special provisions regarding mediation in family disputes As noted. decisions concerning the care of any children and the contribution to their maintenance. could obviate divorce proceedings in court. ADR in family disputes already exists. The potential breakdown of the marriage could be addressed through mediation. and be signed by them.19 model of court procedure that it is almost impossible to adopt a different perspective on its place in Romanian law. as could the exercise of the husband’s and wife’s parental rights. as it is now constructed. The agreement that the parties have arrived at has must also be written. This requires one of the following conditions (art. In practice. and by him. mediation in family disputes. 1.56): the concluding of an agreement between the parties as a result of the mediation. Whatever the reason is. and criminal proceedings. 1. Chapter VI (art. and any other matters between the husband and wife regarding the rights they can .2 Scope Beyond its general provisions that are common to all types of mediation. 59). or its failure as a result of one of the parties’ withdrawal. The fourth and final stage is the closing procedure.64-70) makes special provision for the mediation of the conflcts in two areas: family. It must register all the matters agreed between them.2. The parties submit the divorce agreement to the court which has jurisdiction formally to order the divorce. This is not the case with the provisions in art. but it ignores the UN Convention on Children’s Rights and more recently the jurisprudence of the European Court of Human Rights. Consequently. whether through mediation or in court. This is partly right. 1.65 in Romanian law of mediation.2 Mediation in criminal matters . if the married couple have children. that children’s rights are superior to adults’rights. But this provides no formal guarantee that their best interests will be observed. Where there are children of the marriage.2. For couples who have children. and must be observed and protected by law. and a first step that the the court takes (through a special. either during the mediation procedure or after it. as it is a contract. as marriage is an agreement with obligations on each party. the mediation agreement should not contravene to their best interests. There have been many voices that have called for divorce to be returned to the civil law. for this purpose Article 66 requires the mediator to encourage the partiess to focus mainly on their children’s needs. for example concerning the matrimonial home (art. The formal procedure described in the Family Code envisages a simple procedure appropriate for couples married for more than one year and without children (article 38). divorce procedure.20 dispose according to law. emergency procedure) is to decide to whom the child(ren) should be placed during the divorce.64). should contain sufficiently strong safeguards that provide real protection for the rights of the child. the procedure is different. This suspension subsists until the mediation has come to an agreement. . Theft between husband an wife or between close relatives (art. when the mediation takes place after the criminal process has begun and the parties provide a copy of the mediation contract.67). 18 Battery (art.210. According to Article 70(1). The provisions regarding mediation are equally applicable to crimes for which the reconciliation of the parties withdraws criminal liability (art.69(1)) between the victim and offender precludes either prosecution or trial with respect to the same facts (according to a fundamental principle of criminal law – ne bis in idem). the prosecution or the trial resumes (art.70 (2) and (4)). Penal Code). which provides that for certain types of crimes18 . Threat (art. In these cases. Penal Code). the prosecution or the trial are suspended. the law provides that when the mediation procedure takes place and is completed before the beginning of the trial. The law also contemplates that legal safeguards should apply to mediation (art. This follows from Article 279 of the Romanian Code of Penal Procedure (C. if need be. Penal Code) etc.180. the reconcilliation of the victim and offender before the matter omes to court has a diversionary effect.193.p. the mediated agreement (art. to benefit from translation services (art.68(1)). Regarding its effect.21 Article 68(2) makes it clear that the parties (victim and offender) cannot be forced into a mediated agreement. but no more than three months from the date on which the contract was signed.p). the charge and prosecution depend on victim’s preliminary complaint. If they do not reach an agreement within that period.72(2)): the parties have a right to legal assistance and also. All these types of crimes can be referred to mediation. commenting on victimoffender mediation with youth offenders in Europe. Based on their taxonomy it may be observed that the Romanian organizational arrangements while sharing some common features with the main traditions developed in other European countries. VOM is mainly an ’in-court’ or ‘near-court’ procedure with the exception of Anglo-Saxon and (partly) Scandinavian countries. Volunteer mediators prevail in Anglo-Saxon and Northern European countries. In continental and Southerm Europe there is a strong orientation to organize VOM as a public service. also display some . 2006. 2004. 1. Wright. 2002) reveals the variety of the organizational and procedural arrangements for mediation within Europe. Restorative Justice Developments in Europe and within the European Forum for Restorative Justice (Aertsen. Pelikan. Mestitz and Ghetti 2005. and professional mediators in continental and Southern Europe.3 Organizational Arrangements The comparative analysis and research conducted within the European Cooperation in the Field of Scientific and Technical Research COST A21.22 The law includes a general provision regarding mediation with children suspected of committing criminal offences. whereas in England and Wales and in Northern European countries private / volunteer services and groups are prefrred. Miers and Willemsens 2004. Mestitz and Ghetti (2005: 17). remarked on three primary features: a. Article 68(2) requires that the legal safeguards that have to be guaranted to children during crimnal proceedings have also to be assured within the mediation procedure. c. where VOM is an ‘out of court’ strategy b. 19 These kinds of societies may be established under the regulations of the Civil Code. Title VIII. The mediation law established a national body with legal personality. the law envisages in Article 22 that the mediators undertake the activity within the context of a professional civil society. Mediation in Romania is organized as an activity that is a matter that falls within the public interest (art. whose main purpose is to ensure the promotion of mediation and the representation of mediators’ interests. Chapter V. It has adopted a Code of Ethics and of professional conduct.’ . Mediators may also establish local or national professional associations in order to promote their professional interests. The Council is also responsible for the authorization of mediators and for establishing standards for professional training in mediation. About the Contract of Society. 19 or under the auspices of a nongovernmental organization.23 important original features. elected by and from authorized mediators.24). but which is delivered by private mediators and paid for by the parties. Council members are approved by the Ministry of Justice for a two year term (art. authorized according to law. The Council of Mediation. and can also become affiliated to professional international organizations (art. The Council comprises nine members. The draft of law on mediation that was submitted to the Romanian Parliament provided that it could be organized both by public and private bodies and also by private persons.17). It raises funds from the authorization fees. The result is that according to Romanian law mediation is generally possible only under private arrangements. Instead.4(1)). defined as a co-operative arangement in which one or several associated mediators work together with technical staff. Its activities are self-financing. This proposal ws removed from the enacted law. it was also argued that mediation better satisfies the interests and expectations of the parties in conflict. civil and commercial contracts). and work relationships. emphasising that the overall project met the obligations on Romania to harmonise it legislation with the acquis communautaire in order to substantiate its accession credentials on access to justice. 2 An Analytical Account off the Political and Legal Understanding of VOM / RJ The Minister of Justice’s Memorandum that accompanied the draft law of mediation as presented to the Romanian Parliament identified a number of reasons why a statutory text on ADR was both necessary and desirable. It was enacted after almost a decade of join efforts by academic researchers (D. the Memorandum paid special attention to European standards. formal resolution of conflicts.1 The social and political history within which RJ / VOM was developed The law on mediation does not exist in a vacuum. and from any other legal source (art. Finally. As an alternative to the formal disposition of disputes. It emphasised that mediation had become one of the priorities in he reform of the Romanian justice system. domestic violence. fines applied as disciplinary sanctions.Balahur. is less stressful and less expensive than conventional justice. mediation could also relieve the courts of a substantial number of the cases with which they would otherwise have to deal. 2. As an alternative to the traditional. reconciliation and the informal resolution of conflicts. . sponsorships.24 donations. sales of its publications. Closely connected to arbitration. mediation was better adapted to the new dynamics of social and economic life and to a wide variety of conflicts and problems (for example.21). it saves time. Abraham. Changes in the Civil Code made reconciliation procedure compulsory in any commercial matters. This pressure had an important effect on the legislative process. I. 20 It contributed to profound changes to the existing legal framework and to the introduction of legislative initiatives. combined to support a powerful movement for the reform of the juvenile justice system.Durnescu) and civil society (The Association of Magistrates. P. Other projects that generate synergy with these have been undertaken in recent years. such as . For example. Iasi branch.Banciu. These efforts and their outcomes are described in a report of the Department for Foreign International Development (DFID / UK funded project conducted by a team of British and Romanian researchers. S. Taken together. CNCSIS project). M. these incremental steps. D. Social Alternatives Association.Alexiu. The adoption of special laws.Poledna. carried out over the past decade. Shared by civil society and the academic and legal professional communities.Radulescu.25 S. Research on an experimental project in which restorative justice practices were applied to cases of juvenile offending was carried out in 2004-2005 (Balahur. prosecutors and others to implement such alternatives in the Romanian justice system (Balahur 2004). An extension of this project promoted a VOM pilot experiment (in Bucharest and Craiova) during 2002-04. this movement pressed for the implementation of diversion and ADR strategies in juvenile cases. in 2001 the National Association of the Magistrates and the Association for Social Alternatives focused their attention on the setting up of the juvenile courts. albeit they were set within laws that were themselves 20 Important changes to the Penal Code and the Penal Procedures Code include widening the range of non-custodial criminal sanctions and of the diversionary strategies. judges. Iasi) to implement alternative diversion strategies and measures in the juvenile and in the criminal justice systems. D. make sense of these changes through their personal choices and their professional practices. As David Garland pertinently emphasized. which includes both officials and private indoviduals. .26 often designed to support and to legitimise an already existing practice. is illustrative of the state of the Romanian criminal the Children Act 272/2004.B). Attempts. for example. n. and must be a major focus of a study of this kind’ (Garland 2000: 24). ‘The consciousness of these actors. The diagnosis. to harmonise the criminal and juvenile justice systems will inevitably be tentative. Social change depends in part on changes in the relevant social actors’ critical reflexivity about the traditions that they have inherited and now are charged to maintain. The steps taken on the route to reform can be understood if one starts from the peculiarities of the Romanian criminal justice system of the ‘1990s. a young prosecutor made. (of structural changes and reforms. the categories and styles of reasoning with which they think and the values and sensibilities that guide their choice – is therefore a key element in the production of change and the reproduction of routine. in an interview conducted in 2003. which was deeply structured around the values of over-retribution (Balahur 2004). and will depend on the values to which social actors. contains important diversionary effects. The law of mediation can also be seen as an outcome of the pressure generated by this reform movement. 2. which regulates special provisions for the child in conflict with criminal law. The common penal practice of that time could be briefly characterized as a presumed ’penal route’ to which there were few exceptions.n.2 The legal culture In order to understand legal change it is necessary to understand how social change impacts on a legal culture. . consider the (paraphrased) words of a judge from the juvenile court in Iasi spoken in 2006: The integration of restorative justice practice could contribute to the release of the courts from the excessive number of files and cases. ’it is so regulated and organized. For juvenile justice. especially for crimes prosecuted on the preliminary complaint of the victim. at least until recently. time. possible penal sanctions for the offender. This is directly noticeable in the development of a critique that brought into open debate a series of options in penal law and practice that had earlier been ’taboo’. he observed. This critique challenged the received and hitherto unquestioned wisdom. which do not necessarily represent the . Even so.27 justice system. By contrast. there has ben a gradual change in the mind-set of those actors whose consent is a precondition to change. restorative justice is of special interest. it should also be noted that.’ The main barriers to change are due to the organizational culture and the values of the justice system’s institutions combined with the culture and the retributive philosophy of punishment of the Romanian criminal law and practice in which prosecutors are educated. that once a person has entered the criminal justice system. ’Romanian criminal justice system does not re-socialize’. and so only amplifies the criminal behaviour. the parties are not correctly or not at all informed about the consequences of a penal trial both for the victim and the offender (expense. fines for the victim if he/she refuses without good cause to attend court etc). he passes from one stage to another without any chance of some diversion from a path that requires completion of a sentence that itself demands the deprivation of liberty. as it could considerably reduce the number of children and young offenders sentenced with custodial measures or punishments for petty crimes. . 3. prevent re-offending and recidivism. They also seek to comply with the standards established by the Council of Europe and the UN in the field of crime victims’ protection.2 An evaluation of the extent. The law of mediation is no exception to the observation that the reform of the justice system was promoted by pressures generated within civil society and by international norms. the entire project incorporating the law of mediation and the other changes to the Romanian legal system have been promoted within the framework of European integration and the reform of the justice system.28 right reparation for the offence. inhibit or orient the implementation of a VOM / RJ agenda. and basic principles on the use of restorative justice programmes in criminal matters.1 An Evaluation of Practice The degree to which the country’s legal provisions meet supranational standards As noted. the juvenile justice system opens the inevitable route of a penal system which does not offer too many alternatives regarding youth offenders. This alternative way to the trial in court could also. mediation in penal matters. Restorative justice practices could provide more satisfaction to the victim if the offender provides the right reparation and empathizes with his/her suffering. It . The law legitimised the existing informal practice that had been developed by various private agencies. to which the implementation of these legal provisions advance. 3 3. in my opinion. Instead. These changes aim to meet the obligation to harmonise Romanian legislation with the acquis communautaire on these matters. especially through the improvement of case management. If in 1990 1. The problems with which the formal system of justice is confronted have been aggravated by institutionally endemic corruption. the effectiveness of the justice system was among the lowest in Europe.660 files (civil and criminal cases) with a caseload of 390 files per judge. as the chart below shows. constantly monitored by the European Commission.557 judges had 1. with a caseload per judge of 409 files. a reduction in the backlog of cases and the implementation of alternative dispute resolution.513 judges had 589.21 . It is therefore unsurprising that the level of trust that Romanians have of the justice system is also one of the lowest in Europe and is the lowest in the hierarchy of Romanian national institutions. 3.776 files. Caseloads grew constantly during the 1990s. in 2003.453.29 also addressed the conditions for accession to the European Union that required improvement in the quality of the administration of justice.i Under these circumstances. Decembre. . 21 According to the national pool data published by the Centre for Urban and Regional Sociology (CURS). It may be that we can be confident only the public’s low expectations about what the justice system can achieve for them will be fully met. does not inspire any confidence that matters will quickly improve. But its potential is constrained by the fact that the Romanian approach is to require the parties to pay for the mediation that they receive. the evidence of the public’s low level of trust in national institutions. in particular in the courts. Equally. and thus to speedier justice.30 The institutionalisation of mediation could.ro. www. 2005.curs. contribute to a decrease in the number of cases to be heard by the courts. potentially. .. Balahur. Strasbourg. R. Mediation and Restorative justice in Europe. Spain). 2004-2005. M. D. C. Balahur. USA. Willan Publishing. D.. D..Didactica si Pedagogica. Bucuresti. Child and Childhood in Romania. 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