A ‘Paradigm Shift’ in the Criminal Law System – The Evolution of the Mediation in Criminal Matters in Hungary, by Virtue of the EU Expectations
The idea of restorative justice has been much talked about in the last decades. Distinguishing between a retributive and a restorative model, it has sometimes been argued that the idea of restorative justice stands for a 'paradigm shift' in the criminal law system (Meier, 1998, 125.). Mediation has become an integral part of many European criminal justice systems: although there were many unsolved problems at the beginning. As it was pointed out in the Handbook of Criminology, these problems covered a wide variety of details, ranging from the unclear role of reparation and compensation within the context of the criminal justice system to the consequences of the idea of restorative justice for the mass of ‘victimless’ crimes (Zedner, 1994, 1239.). However, the lack of a conclusive concept of restorative justice could have been left unnoticed, as a considerable progress of the idea of restorative justice could be observed in many European legislations during the last decades.
The Origins of Restorative Justice in Hungary
In Hungary, the use of mediation in criminal matters was introduced late even by European standards, as it had been debated for over a decade (it should be mentioned that mediation is not limited to criminal cases in Hungary; in family law and other civil law procedures, mediation was made available earlier than in criminal law, see Barabás, 2015, 387.). The main discussion was about the nature of European Continental law, which provided a very strict frame. One argument of those opposing mediation was that it does not fit in the Continental/civil legal system built on the principle of legality, especially since the sentence may be reduced or replaced if the parties consent. There was a strong reluctance from the side of state authorities to give up their monopoly position in dealing with crime. Nils Christie’s statement – that the state appropriates the conflict and takes the power of decision-making away from the victim in the victim’s own case – proved to be truer (Christie, 1977, 1–15.). Even professionals advocating mediation debated among themselves whether mediation should be used within or outside the criminal procedure. It was also discussed whether or not the victim or the state had the right to renounce their prerogative to demand punishment if reparation was provided (Barabás, 2015, 387–388.).
The related disputes and preliminary needs assessments were still in full swing when due to our EU membership it became ‘mandatory’ to introduce mediation. The relevant 2001/220/JHA Framework Decision – was replaced by the currently effective 2012/29/EU Directive – obliged the Member States to create the opportunity of reaching an agreement between the perpetrator and the victim, and the consideration of such agreement in the criminal proceedings, therefore the legislator was forced to leap into action and fulfil our EU obligation (Görgényi, 2017, 137.). According to the provisions of art. 1. letter E) of the Decision, ‘mediation in criminal cases’ shall mean the seeking, before or during the criminal proceedings, of a solution negotiated between the victim and the perpetrator of the offence with the mediation of a competent person. It should be noted that in one of his co-reports Mihály Tóth added that the Framework Decision prescribed the obligation to introduce not specifically mediation but allowing the cooperation of the defendant and the victim, in order to facilitate the rehabilitation of the victim of the criminal offence, which process has already been ongoing for a time in the Hungarian criminal procedure (see Tóth, 2015, 82–87.).
The Initial Legal Framework
After tremendous preparatory work and professional negotiations, for some, it may have been a dream come true that as of the 1st January 2007 – we slightly missed the deadline prescribed for the implementation of the Framework Decision with this date, however, the non-compliance had remained without legal consequence – mediation in criminal cases became applicable in Hungary as well (see Pápai-Tarr, 2007, 381–409.). The task of implementation of victim-offender mediation has been allocated to the Office of Justice, which is a background institution of the Ministry of Justice and is responsible for the nationwide operation of the Probation Service, the Victim Support Service, and the Legal Aid Service. Thus the mediation process is one of the means of restorative justice, which tries to manage the criminal offences as a unique conflict. The main purpose of this concept is the restoration of the original condition which prevailed before the criminal offence was committed, and its focus is a diversion from the judicial course, as well as the thought of settling the conflict through communication (Belovics & Tóth, 2019, 279.; Act CXXIII of 2006 on Mediation in Criminal Matters, Section 2). Since it is a legal instrument of dual nature (Polt, 2013, 203.), in order to establish the application of mediation, the legal instrument of active repentance was inserted in the former Criminal Code (Act IV of 1978, Section 36) as a new ground for exemption from criminal liability, the application of which constituted the condition of mediation (Görgényi, 2006, 72.).
The Evolution of the Regulation – Towards the Extension of the Application of Mediation
Over the roughly ten last years the regulation has changed in the spirit of flexibility, the legislator intends to help the evolution of the developing opportunity in an ever-extending scope (Barabás, 2017, 77.). According to the currently effective Criminal Code (Act C of 2012), the scope of applicability of active repentance was widened, however, this scope still includes only certain groups of criminal offences of minor or medium severity: a criminal offence against life, physical integrity or health, against personal freedom, against human dignity and fundamental rights, any traffic offence, offences against property or intellectual property rights. So it is not possible to use victim–offender mediation (VOM) in a case of robbery, and also not in sexual abuse cases. It should be noted that it is not an obstacle to the active repentance if, in addition to the criminal offence listed, another criminal offence not included in the list is also committed as a cumulative offence, provided that the former is the determinate of the criminal offences (CC Section 29 (3)). The Criminal Code specifies those reasons of substantive nature (such as committing the criminal offence in the framework of a criminal organisation or committing a criminal offence resulting in death, see CC Section 29 (1) – (2)), in which cases active repentance is not allowed.
In case the perpetrator has admitted his guilt before being indicted and has provided restitution by way of the means and to the extent accepted by the injured party within the framework of a mediation process, or previously if approved in the agreement reached in course of the mediation process, then that shall be considered as active repentance under substantive criminal law, the consequence of which – depending on the ‘type’ of the criminal offence (criminal offences may be classified as felonies and misdemeanors, see CC Section 5) and the upper threshold of the sentence of imprisonment which is carried by the felony – is the termination of the procedure or the unlimited reduction of the penalty. It should be noted that if the perpetrator is a juvenile, the five-year sentence is the uniformly applicable maximum possible upper threshold (CC Section 107).
Per the provisions of the former Criminal Procedure Code (Act XIX of 1998, Section 221/A), the mediation was a substantive and procedural law process that was conducted simultaneously with the criminal proceedings, explicitly welded together with the enforcement of active repentance (Bodor & Csák & Máziné Szepesi et al., 2012). If the statutory criteria were fulfilled, then the prosecutor could suspend the criminal procedure for up to six months, in order to arrange the agreement. However, if for any reason the issue of whether mediation could be conducted was raised only later – during the trial phase – then mediation was possible in that phase of the procedure as well. There was also the opportunity to – in the framework of the mediation process – incorporate any amends which the perpetrator had made and the injured party had accepted before the mediation process in the settlement agreement subsequently.
On the one hand, the new Criminal Procedure Code (Act XC of 2017) allows the conducting of the mediation process in case of other groups of criminal offences compared to the ones so far, as well as in case of more serious criminal offences, too (CPC Sections 412 – 415). On the other hand, in the future the applicability of the process will be separated from the substantive criminal law criteria of active repentance, therefore mediation is applicable not only in connection with grounds for exemption from criminal liability or grounds allowing another advantage in case of active repentance but regardless of such grounds as well, as far as the objectives of the mediation process can be achieved. The special criteria – including the voluntary basis on both sides – and the course of the process has basically not changed.
A Rapidly Growing Field of Practice
All these easings are moving in the direction which has been desired by the relevant legal literature for a long time, as a result of which the will of the injured party and the perpetrator may become decisive regarding the matter of mediation in the future (Barabás, 2017, 82.). Although the area of application expanded – since its introduction in 2007 (the annual number of cases was 2,451 then), the legal instrument has been increasing continuously since 2013, by 162.2% in total (Pápai-Tarr, 2007, 400.) – the criminal offence composition of the cases referred to mediation process has not changed significantly over the years; nearly half of the cases are made up of criminal offences against property (a larger number of thefts, vandalism, fraud, and embezzlement), a third of the cases are traffic crime (primarily causing road accident negligently), while the fifth of the cases are made up of criminal offences against persons (primarily battery and harassment).
It should be noted that, as opposed to this, in France, criminal offences against persons constitute approximately 50% of the cases referred to mediation, however, domestic and neighbour conflicts are significant as well (Pápai-Tarr, 2007, 401.). The imbalance of the distribution of cases within the country implies that the cases have a better chance of being referred to mediation in the capital. Unfortunately, this solution is applied in cases of juveniles rarely – in 10-11% of all cases – in which cases mediation seems to be especially effective according to the results (Barabás, 2017, 79.).
Owing to the practice being regarded positively, the legislative intent to expand the application of mediation beyond the criminal procedure as well is evident, namely, in recent years mediation became applicable in course of minor offence procedures (Act II of 2012 on Minor Offences, Offence Procedures and the Registration System of Offence, which was amended by the provisions of Act CLXXXVI of 2013 Section 67/A-D) and criminal enforcement, regarding the procedure commenced due to breach of discipline among convicts (Act CCXL of 2013 on the Enforcement of Punishments, Measures, Certain Coercive Measures and Detention for Contraventions, Section 171 (1)) as well (Barabás, 2011, 98–114.).
Lastly, we should look at the two most noteworthy projects among the numerous significant initiatives which were made to extend the application of mediation and were parts of the cooperation between the National Institute of Criminology (’OKRI’) and the Foresee Research Group. The EU-funded MEREPS project, implemented between 2009 and 2012 through the partnership of four countries (Belgium, Germany, Hungary and the UK) focused on how mediation and other restorative practices could be applied in prison settings, with special regard to offenders who committed serious crimes and the victims of such crimes. The methods of restorative justice were tested in practice in a prison environment in the form of a pilot project.
The EU-funded Peacemaking Circles pilot project took place between September 2011 and August 2013, through the partnership of three countries (Belgium, Germany, and Hungary). In Hungary, four counties were involved. As opposed to mediation, reconciliation circles involve a larger group in the discussion of the conflict. Beyond victims and offenders, circles engage the community affected by the conflict (family, friends, colleagues, schoolmates, the residential environment, the neighbourhood, and, in the case of a crime against community property, the community itself). However, reconciliation circles also attempt to involve the officials in the criminal procedure, i.e. judges, prosecutors, police officers and the representatives of other supporting professions. Although neither of these pilots resulted in the extension of the statutory regulations, their novel approach and successes have contributed to the recognition of the usefulness of restorative methods (Barabás, 2015, 392–393.).
For a list of references, click HERE.
Author: dr. Petra Ágnes Kanyuk
Ph.D. Student at the Géza Marton Doctoral School of Legal Studies of the University of Debrecen, Department of Criminal Law and Criminology
The study was prepared with the professional support by the Research Scholarship for Ph.D. Students No. ÚNKP-19-3, granted by the Ministry for Innovation and Technology in the framework of the New National Excellence Programme.