Selected Problems of Czech Criminal Law Probation and Mediation Service Diversions in the Criminal Procedure Jan Provazník Spring 2017 History •Origins in the first half of 19th century –private organizations –mostly religious or moral motives and purposes •Work with convicts and released convicts –effort to improve conditions – e. g. John Howard •Development related to the advancement of alternative sanctions –19th/20th century, adopting suspended sentences etc. John Augustus – “The Father of Probation” •First half of 19th century, Boston –successful businessman - shoemaker –philantropist – endeavor to tackle petty criminality –member of Washington Total Abstinence Society •First probation experiment –personal promise to look after the defendant if the delivery of the sentence was postponed for three weeks –> the defendant came back changed •Successful probation career –almost 2.000 cases – John Augustus’ legacy •Creating the investigation process –finding and assessing suitable cases for probation –John Augustus was really good at this – only cca 10 of all his clients failed •Today’s probation principles –investigation –intake – the involvement of the client, motivating her or him to take an active approach toward hers or his re-socialization –supervision – monitoring his or hers efforts – – Probation - term •A system of expert activities and services focused on ensuring the execution of certain decisions of the criminal court or the public prosecutor –usually convicting judgments – + certain procedural decision of the quasi-substantive nature (diversions) – not a convict, still defendant –the decision doesn’t impose incarceration on the convict or defendant – Probation - means •Requires professionally trained personnel who is in regular contact with the convict –social workers, psychologists •Formal acting –preparing reports for the court or the prosecutor •Informal acting –social counseling, help with taking measures to reintegrate again Parole - term •Conditional release from imprisonment on certain conditions for a probation period –if there is a good prospect that the convict will lead an orderly life (not only reoffending, but also having an honest source of income, normal social relations etc.) •If the convict fulfills the conditions of the parole in the probation period, rest of the sentence is excused – in the opposite, he/she needs to serve the rest Parole - purpouse •To relieve the prison systems –financially – average costs of 1 prisoner is app. 16.340,- EUR p. a. in the CZE (total count app. 20.000 prisoners) –materially – the more prisoners there are, the less can the expert personnel attend each of them •To give them chance to reintegrate –to help him/her continue their extramural relations –to help him/her become financially independent again, find a place to live, etc. Parole - means •Very similar to probation –regular contact with the probation officer –monitoring of the behaviour, social assistance •Difference is the gap in the life of the convict –their normal life was interrupted –the fact of incarceration leads to izolation –the convict need bigger help to rebuild what he/she lost Mediation - term •A dialogue between the perpetrator and the victim or sometimes a trialog with the community as well –led informally – no court, prosecutor or law enforcement included –usually in the initial phase •It should lead to mending the relations broken by the crime –more of a negotiation and facilitation than of a legal process Mediation - purpouse •Ideal outcome: –the perpetrator accepts his/hers responsibility –the victim deals with his/hers negative experience of being a target to a crime –there is a legally binding arrangement of compensation or reparation –the is a solid ground for a swift and effective criminal trial (if needed) •Reality is usually far from that – Mediation - means •Supervised and hosted by a professional –form of a mediated dialogue –no formal rules •Strictly voluntary –both for the victim and the defendant –if the parties want, there can be an agreement of compensation as a result •The result is reported to the court/prosecutor –motivation for the defendant to attend • – Institutions of probation •In Europe, many models –historically done by volunteers (still strong influence in Austria, Italy, the Netherlands, Scandinavian countries) –during socialist era tasks conducted by the police officers –today most typically a specialized public institution •The scope also differs –probation and parole only (e.g. Hungary, Romania) –mediation included ( e.g. CZE, Austria, Slovakia, Poland) • – Principles of probation work •Mutual trust – no executive authority - probation officer doesn’t punish or enforce, everything is voluntary –no bias or prejudice, rather unconditional acceptance of client •Mutual respect –client respects the obligations of the probation officer (e.g. having to report breach of conditions) –the officer respects his client’s autonomy – Principles of probation work II •Effective intervention –timely and minimal –restraint especially in the case of mediation •Realistic goals –careful assessment of each case, guiding the client from urealistic expectations •Transparency, legality, cooperation with other relevant institutions etc. – Other tasks of probation officers in the criminal procedure •Monitoring of defendant as a surrogate for procedural custody –the probation officer randomly checks the defendant and reports eventual shortcomings •Monitoring of the abidance of the preliminary measures –almost the only form of control •Monitoring of the execution of the punishment of house arrest –random checks as well PMS and victims •Victim –a natural person, who suffered a material damage or immaterial harm from a crime or on whose account did the perpetrator unjustly enriched himself or herself –also bereaved person •Especially vulnerable victims –victim of violent or sexual crimes, minors, seniors (in the near future), victims of human trafficking, victims with disabilities • – PMS as provider of care for victims •Legal information –victim’s rights, procedural rights, course of the criminal procedure, providers of other services for victims, how to claim compensation and how to collect it etc. •Psycho-social support –immediate intervention, assistance with psylogical and social recovery from the inflicted trauma •Restorative programms –mediation • – Diversion in the criminal procedure •Procedural aberration regarding the merits –diverting the proceedings from the standard course ending with the decision on guilt and punishment –usually ends in a quasi-substantive procedural decision –usually requires cooperation of the defendant –comes to place only where there are no factual or legal doubts about the case – Closely connected to the concept of restorative justice •Another paradigm of criminal law –the crime is perceived as a conflict between the perpetrator and the victim rather than a conflict between the perpetrator and the whole society –the involvement of both parties and their community is required –see Howard Zehr’s Changing Lenses •Today seen as a complementary model to retributive justice –modern criminal law combines both approaches – Diversions in the Czech republic •Conditional stay of proceedings •Settlement •Withdrawal from the criminal proceedings •Agreement on guilt and punishment (plea bargain?) – Conditional stay of proceedings •Prerequisites: –misdemeanor –defendant’s confession and consent –discretion of the public prosecutor or judge (never police officer) •Consequences –the proceedings is stayed for a probation period of up to five years –additional obligations can be ordered –if the conditions are met, the stay becomes permanent – there will never be a conviction Settlement •Prerequisites: –misdemeanor –defendant’s declaration of committing –discretion of the public prosecutor or judge (never police officer) –consent of both the defendant and the victim –an agreement between defendant and the victim •Consequences –the proceeding is permanently stayed –the victim’s claim is enforceable Withdrawal from criminal proceedings •Prerequisites: –proceedings against juvenile –misdemeanor punishable max up to three years –lack of public interest –discretion of the public prosecutor or judge –ineffectiveness of the criminal proceedings –no need for punishment to prevent reoffending •Consequences –the proceeding is permanently stayed –the juvenile can contest the withdrawal in three days Agreement on guilt and punishment •Prerequisites: –not a serious felony –declaration of committing –consent of the defendant and the prosecutor –approval by a court –adequacy to the factual state •Consequences –convicting judgment –therefore it is not a proper diversion Questions? Thank you for your attention!