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Dr. Erzsébet Hatvani: Symbolic Restitution: Community Sanctions in the Practice of the Hungarian Probation Service

Uploaded at: 2010. 07. 19.

Author: Dr. Erzsébet Hatvani

Due to lifestyle changes, new patterns of crime, a deterioration in the feeling of personal security and an increased fear of crime following the change of political regime, it has become necessary to reconsider the criminal law responses to crime in Hungary. The American and the Western European developments were available as models for transforming crime control, especially double-track criminal policy and the concept of restorative justice. Legal developments in Hungary rearranged the sanction system and introduced a new institutional background for the effective enforcement of new, alternative sanctions.

A broader concept of alternatives to prison includes not only the criminal law sanctions not resulting in the offenders imprisonment, but also the various forms of diversion, compensation and reparation. Reparative justice is closely connected to the new forms of alternatives to prison. In spite of this connection, there is one key difference: while in traditional criminal justice the offender is the "passive subject" of retribution and is required to suffer the punishment, under the community concept the offender is a "responsible subject" and the community thus expects the offender to take responsibility for the crime.

As a result, the sanction system was expanded and modified, and new, alternative, diversionary and restorative methods were introduced in Hungary. The first examples came as early as during the 1990s. Community service and postponement of accusation (the latter as a diversionary measure first applicable to juvenile offenders and then extended to adults) were the first such measures to be incorporated into the Hungarian legal system.

In Hungarian mediation practice, there are efforts made to accomplish more agreements on immaterial (symbolic) reparation in addition to the efforts to mitigate the harmful consequences of a crime through the payment of material compensation. This article will not analyse the symbolic forms of reparation. Instead, it will focus on other measures in the Hungarian criminal system that help implement the concept of restorative justice.

Statutory changes

For legal changes to be implemented effectively and in order to make progress, there was a demand on the part of the legal profession at the beginning of the 21st century to create an institutional background for the implementation of legislation. Probation services are professional organisations responsible for the enforcement of alternative sanctions and for preparing the inmates to be released for reintegration. Probation services have been in existence for decades in Western Europe and they are in constant developrnent in Central and Eastern Europe. In Hungary, the Probation Service was set up as a result of the comprehensive criminal law reform carried out in accordance with the restorative and reparative principles and as one of the organisations responsible for the enforcement of community sanctions and restorative justice measures, in line with the new, redefined roles of probation service activities.

Probation services have been in existence in Hungary for almost 30 years, but until 2003 they operated without uniform professional guidance and control. In 2003, the services were finally given an appropriate, modern and consistent professional and organisational background. The Probation Service is under the control of the minister of justice. The Probation Service's objective is to be present in and influence the criminal procedure within the traditional systems of crime control, criminal justice and prisons.

In 2003, the basic tasks of the Probation Service were as follows:
•    assisting the prosecutors and the judges in decision-making through expert professional services;
•    carrying out social inquiry report and issuing pre-sentence report;
•    enforcing diversion measures and punishments carried out within the community (postponement of accusation, probation, deferred sentence, release on parole, temporary release from a reformatory institution under the supervision of a probation officer, and community service work);
•    providing prison support services in penal and reformatory institutions in order to prepare inmates for release and after- care services on a voluntary basis.

The key items of the comprehensive criminal law reform implemented from 2003 were the extension of community sanctions, the concept of restorative justice and the strong representation of the victim's and the aggrieved community's interests.

A number of intemational documents have provided guidance for the types, content and enforcement of community sanctions, such as Recommendation R(92)16 and Recommendation R(2000)22 of the Council of Europe.

According to Recommendation R(92)16 of the Council of Europe on European rules on community sanctions and measures, the definition of a community sanction includes the following elements;
- a community sanction reserves the offender in the community;
- involves some restriction of the offender's liberty (through the imposition of conditions and obligations);
- is implemented by bodies designated by law for that purpose (the probation service);
- supervision combined with various levels of restriction of liberty provides assistance for reintegration.

Recommendation R(2000)22 of the Council of Europe promotes the implementation of the rules on community sanctions and measures and includes guiding principles for achieving wider and more effective application of community sanctions and measures. The Recommendation lists the available community sanctions and the cases in which they can be applied in order to increase the number of cases in which a wide range of community sanctions and measures are implemented, These examples include unpaid work (community service work) and treatment orders for drug and alcohol abuse. It appears that aspects of restoration and reparation are becoming more prominent as the Recommendation determines the introduction of the restorative element to community sanctions as a possible way of progress in criminal policy. Also, the Recommendation specifies victim offender mediation as a possible community sanction.

The key characteristics of community sanctions are that
- the main goal of the sanction is not to deprive the offender of his/ her liberty;
- the sanction does not separate the offender from the community, which means that the person will remain a responsible member of the community;
- a key element of a community sanction is that it does not require the offender to suffer some form of deprivation of liberty; instead, it requires the offender to fulfill obligations, to have a positive attitude and to be active (behaviour rules, mediation, active repentance and reparation);
- instead of a one-sided (passive) relationship it necessitates a two- way(active) relationship between the offender and the organisation implementing the sanction;
- it involves some form a restriction of personal liberty (control) and at the same time provides assistance;
- it relies on the integrative power of a community;
- the enforcement of the sanction requires continuous and personal contact between the offender and the implementing official (mediator or probation officer);
- the organisation implementing the sanction must ensure that the local community is involved;
- a failure to meet the terms of the sanction has legal consequences.

The Hungarian reform of probation services introduced restorative elements to the concept of state victim support and to the state organisation of victim assistance. The restorative justice approach gained a Central role in the theoretical background to the National Strategy for Community Crime Prevention (2003), Inthisdocument, restorative justice was considered a principle that should be used in horizontal community crime prevention and in primary, secondary and tertiary crime prevention efforts.

The Hungarian Probation Service applies the principle of restorative justice as a horizontal principle. This is reflected in the organisation's mission statement.

The objective of the Probation Service is to reduce the risk of re-offending. The probation officer promotes the full implementation of the imposed criminal law sanctions and the protection of the community through supervising the offender consistently to the necessary extent. The assistance provided by the officer also increases the offender's chance for reintegration. The Probation Service operates on the basis of the principle of restorative justice. Its objective is to make the offenders realise the consequences of their crimes and to reduce the damage caused by the crime by mediating between the aggrieved community and the offender.
The philosophy of restorative justice is directly applied during the work of the Probation Service through various restorative techniques and procedures. Penal mediation was introduced in 2007 in Hungary and the Probation Service was appointed to carry out the mediation procedures and a system of training and supervision was also established. Penal mediation is available in the phases before the prosecutor and the court. It can be applied for both adult and juvenile offenders if the crime is not punishable by more than five years of imprisonment.

The Code on Criminal Procedure regulates mediation as a method of diversion. It is a key feature of the mediation procedure that the person causing the damage must take responsibility for the crime and must offer somé form of reparation for the aggrieved persons and communities. Reparations can be made to the victim by providing material or immaterial compensation.
The Probation Service is experimenting with the use of other restorative techniques and procedures in the case management work of probation officers in order to complement mediation, which is a direct procedúrái form of restorative justice. One of these experimental projects is family group conferencing carried out during the after-care phase. The use of family group conferencing may help the inmate to prepare for release, it may mobilise community and family resources and thus assist the work of probation officers providing after-care services.

In addition to incorporating restorative techniques in the "toolkit" of probation officers, it is also the aim of the service to encourage the application of forms of symbolic restitution. Naturally, symbolic restitution may be used as a result of some restorative procedure, but it may also be an element of a community punishment even if no restorative technique is applied.

Symbolic reparation can be combined with community sanctions in many ways. The most typical form is the sentence of community service work, which is a sanction of reparative nature. In Hungary, it is the obligation of the probation officers to organise and monitor community service work.

When the offender carries out community service work, he/she typically does some useful work that the given state or local government organ would otherwise have no funds to pay for. During the enforcement of this punishment, special opportunities of reintegration arise, given that many of the offenders have a low willingness to work and are not used to hard labour. Through community service work, these people can be brought back to the job market in a non-conventional manner. They have a chance to gain employment at the institution where they worked during the period of their community service. The Probation Service has to carry out their activities in such a way that the local community should enjoy the result of the community service work. The most visible forms of community service work are when the offenders develop or maintain the natural or the built environment in the area. Such efforts are visible and bring positive results to the life of the community and therefore the community will be more likely to feel appeased and its open attitude may be strengthened. Community service is not the direct reparation of the damage caused by individual crimes. Instead, it is about symbolic restitution to the community through unpaid work. If community service is organised in a way that makes the enforcement and the results visible for the community, the punishment is much more capable of decreasing the general fear caused by the crime within the community and it develops trust that the reintegration objective of the sanction will be reached.

While restorative justice expects the perpetrator to take personal responsibility, it also requires the community to show a receptive attitude. The phenomenon when the restorative method makes the perpetrator realise the consequences of his/her actions is called reintegrating or receptive shame by restorative justice literature. The offender takes responsibility for the crime due to the shame resulting from the realisation of the consequences. The offender will not be left alone with the shame as the offender and the community will help the offender digest it by offering him/her the opportunity of restitution, as well as reintegration/reacceptance as a result of the restitution. From the aspect of social reintegration, the active contribution and the receptive attitude of the community is also significant (in addition to the needs of the offender). This factor must be taken into account when sanctions are enforced.

As already mentioned, active responsibility is a key element of sanctions enforced in a community. Active responsibility is more than just compliance with the rules accepted by the offender. It must involve active repentance and the offender must keep the individualized behaviour rules.
Symbolic restitution may also be made as part of the activities required under the behaviour rules specified by the Probation Service. Alternative sanctions are much more effective and the chance for reintegration is significantly higher if the sanctions are combined with individualized behaviour rules.

The main types of behaviour rules are the following.
1) The offender may be ordered to discontinue a form of conduct or activities related to the crime Isuch as visiting clubs or similar venues) or an obligation similar to a restraining order may be imposed on the offender (typically for offenders of domestic violence).

2) The offenders may be ordered to participate in treatment, trainings or counselling related to character or behaviour problems, addictions etc., for inslance they may be required to undergo medical treatment, or to attend aggression management training, social skills improvement training. labour market training and job counselling.

3) Obligations to makeup for missing education; forinstancethe juvenile offenders can especially be ordered to continue or complete their studies or to attend learning assistance programmes.

4) Behaviour rules related to restitution; if such rules are prescribed, the offender may be required to pay compensation or provide symbolic reparation for the damage caused by the crime.

Reparation is specified as a behaviour rules in the Criminal Procedure Code in relation to the postponement of accusation. Under this rule, the prosecutor may require the suspect to
•    compensate the victim for the damage caused in full or in part;
•    make reparations to the victim in somé other fomn;
•    make a payment for a specific cause or carry out work for the community (reparations made to the public).

Although the "Criminal Code" does not specify reparation in express terms, it does make a reference to the possibility of reparation as it declares that the court and the prosecutor may specify behaviour rules, with special regard to the nature of the crime, the damage caused and the possibilities of the offender's reintegration.

It is a key precondition of implementing behaviour rules and related symbolic restitution programmes to ensure that the courts and the prosecutors prepare sufficiently. The fact that the tasks of the Probation Service were redefined in 2003 meant significant progress regarding the introduction of individualized behaviour rules. For instance, in a criminal procedure against a juvenile, the probation officer must prepare a social inquiry report eariy in the procedure (during the investigation phase). In the prosecution and sentencing phase, the court and the prosecutor (or, before release on parole, the court responsible for the enforcement of sentences) asks the probation officer to prepare a pre-sentence report evaluating the individualized conduct-related aspects of the criminal behaviour, the attitude of the offender to the action, the harmfulness of the offender on the basis of the crime committed and the risks related to the personality and the environment of the offender that may lead to re-offending. Through the report, the probation officer informs the court or the prosecutor of any job opportunities available on the basis of the offender's skills, of possible treatment in health and social institutions, and the officer makes a recommendation for imposing special individualized behaviour rules on the offender (such as participation in various treatment, prevention or restitution programmes). The officer must include in the report whether the accused is willing and able to comply with the behaviour rules and to carry out the agreed obligations. The preparation of the report provides an opportunity for the probation officer and the offender to establish a bond early on in the procedure. As a result, the information is available basically in the form of an expert s opinion at the time of sentencing or when the prosecutor decides whether a diversionary measure may be applied and its content may be taken into consideration when the sanctions/measures are imposed.

The behaviour rules may only be enforced effectively if the probation officers are provided with modern equipment and if the institutional background is up to date. Such modern institutions include the so-called community employment programmes, which offer special programmes prescribed as behaviour rules for those offenders that are under supervision due to a criminal law sanction or measure. Community employment programmes may allow the developrnent of special restitution programmes.

With the financial support of the National Crime Prevention Board, the Probation Service launched a project "Community restitution programmes in Budapest in 2007 for the promotion of behaviour rules with symbolic restitution content. The project was modelled aíter an English restorative justice programme. An Oxfordshire-based working group called Youth Offending Team always consults with the victims and offers them a chance to establish contact with the offenders and to define the form of compensation they accept. Those victims that do not want to meet the juvenile offender or do not accept the form of restitution offered by the offender may choose a programme from a list of restitution programmes available in the area. The working group's aim is to ensure that restitution is part of each juvenile offender's sentence.

The aim of the project managed by "Jóvá-Tett-Hely", a community employment organisation run by the Probation Service ofthe Budapest Office of Justice, was the establishment of a similar system. Our goal was to set up a network of organisations capable of providing symbolic restitution opportunities to youth offenders. The original plan was to make use of the list of symbolic restitution opportunities already during the project, in criminal mediation. However, this plan fell through, mainly because mediation in Hungary is used less frequently for youth offenders than for adults in spite of the fact that in most countries restorative justice methods are applied particularly in the case of juveniles.

In 2007, mediation was used for 279 youth offenders out of the total of 2.22-4 offenders participating in mediation procedures. In the first half of 20 0 8, mediation procedures were started in 277 juvenile offenders' cases while aduit offenders participated in mediation procedures in 1990 cases. New data that were not available at the time of the conference (April 2009): in the full year of 2008, a total of 3.669 mediation procedures were conducted but only 425 of them involved a youth offender. In 2009, there were 3.984 mediation cases in total but mediation was only initiated in 438 juvenile cases.

As a result, symbolic restitution activities under the project were carried out instead as partot the probation service's behaviour rules within the given project period. After the project was over, progress was made in introducing its results in the mediation procedure.

During the project, we interpreted symbolic restitution as follows:
- the sanction is combined with symbolic (non-material) compensation;
- symbolic restitution is not necessarily a result of a restorative procedure;
- symbolic restitution is not necessarily made to the benefit ofthe victim (there is no specific victim or there is no criminal mediation);
- the decision is not made with the involvement of the affected parties, but the victim may still participate in the decision-making process (if the victim chooses this option during mediation).
- while reparation is made to an individual, symbolic restitution is made to an entire community;
- the offender must voluntarily agree to make reparation; the form of reparation has little direct connection with the crime.

In the programme, we contacted potential recipient organisations that deal with young people themselves or that work for specific community goals and values (for instance, environmental protection). Finally, we managed to invite four organisations: a foundation for entertaining sick children (Gyermekvilág Ágyszínház Közhasznú Alapítvány), an environmental foundation (Rügyecskék Ember- és Környezetvédelmi Közhasznú Alapítvány), a family help centre and its institutions (Ferencvárosi Egyesített Családsegítő Központ és Intézményei) and an organisation providing leisure services for children [Csillebérci Szabadidő Kft).

At the start of the project, 16 juvenile Ibetween 14 and 18 years of age) and young aduit (between 18 and 2-4 years of age) offenders participated. Two of them left before completion. Three participants (boyfriends and girlfriends of some offenders) participated in the programme as volunteers. The young offenders were under probation service supervision for the following crimes: public nuisance (misdemeanour: 2 persons, felony: 4 persons), misdemeanour of vandalism (4 persons), aggravated assault (4 persons), theft Imisdemeanour: (1 person), felony: (1 person). Age: 9 of them were between 16 and 20, 10 were between 19 and 20. The youngest participant was 16 and the oldest was 24.
The Gyermekvilág Foundation organises games and playful activities for sick children in hospitals around Budapest. A so-called "animation training" was organised for the youth offenders before they made visits to hospitals. The training focused on playing games in groups and on learning communication skills. The young offenders learnt to play various games, they were told about the psychology of games and they were prepared for the meeting with the sick children.
The family help centre provided tasks for the youth offenders in a youth club (Aluljáró Ifjúsági Klub) and an elementary school (DominóÁltalános Iskola). In the club, the young offenders either tutored elementary school children needing help or provided assistance in administration. In the elementary school, they assisted in carrying out leisure time and sports events organised for the kids.
At the Rügyecskék Foundation, they cleaned and collected waste in forests and public spaces (the woods near the village Kistarcsa and the Small Danube cove at Csepel). Alsq, they repaired damage caused along an "adventure trail".
At Csillebérc, the young offenders had an opportunity to carry out lawn maintenance, they cleaned the native tree park, collected branches from the ground, removed fallen leaves etc. and they also carried out repair works on wooden houses and garden furniture.

As an experiment, we invited peer-helpers to the programme. Each young offender was paired up with a peer-mentor who assisted the young offender in the restitution process. We had 13 mentors altogether. They were all members of the "Students' Academic Society" (hereinafter TDK) of the Criminology Department at Eötvös Loránd University Faculty of Law. The Criminology Department's TDK has a long history of social support work; university students have helped in providing after-care support to young offenders after their release from prison as early as in the 1960s.
The programme continued after the expiry of the period in the call for proposals. Also, a restitution network started to be developed in the city of Miskolc on the basis of the model. One of the key goals of the project was to motivate the community and to increase the receptiveness of society.

From this aspect, the projects can be considered a success as all participating organisations said they would gladly take part in the programme in the future. We would like to involve new network members in the programme, such as state organisations responsible for social responsibility issues, charity organisations and environmental NGOs as the approval of both the local and the broader community is indispensable for the effective application of restorative justice methods. In Hungary, it is an issue how restorative justice can work, given that the level of social cohesion is too low. At this point, it is unknown whether the low level of social cohesion will distort the developrnent of restorative justice or whether restorative justice can improve social cohesion and help the emergence of effective forms of social coexistence.

Source: "European Best Practices of Restorative Justice in the Criminal Procedure" Conference Publication, based on the conference named "European Best Practices of Restorative Justice in the Criminal Procedure".

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