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 laws capacity to deliver
In Aertsen, Ivo and David Miers (Eds) (forthcoming) Restorative Justice : Evaluative Findings in Europe, Bremen, Polizei und Wissenschaft.
1

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 justices 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 Garlands 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

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

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.

access to the judicial system. . The concept of access to justice, especially in the view of better protection of the victims of crimes, has also been developed through the Belgian initiative to set up a European Network of contact points for restorative justice. 5 The proposal emphasizes that restorative justice implies that the needs of the victims are prioritized. Both material and immaterial reparation should be aimed at restoring the balance between the victim and society.

As noted, 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. For the former communist countries in Central and Eastern Europe, one might talk about a wider project of reform. This aims to establish, within the framework of a multifaceted process, 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, cultural tradition and sometimes in the soft-law procedures of conflict resolution practices. Consequently, reform in the former communist countries is a double reform. This aims, first, at rebuilding entire political and economic institutions (the modern reform). Secondly it seks to restore trust among people, mainly by promoting less formalised forms of social action and control; this is a part of a merely post-modern project. Taking place in a time of deep social transformation, these reforms have thus been simultaneously confronted with a set of double range transformations: to democratise their life and also to (post)

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 8.10.2002].

modernise it in line with the major social movements and values in Europe and the global society.

Based on the conclusions I have arrived at in my own reserch on the process of reform, especially of the justice system (Balahur, Littlechild and Smith, forthcoming), and also on results of other enquires carried out in former communist countries, 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. That is why any inquiry into alternative conflict resolution in the former communist countries, regardless of the label used, mediation, conciliation, arbitration, restorative practices, ombudsman, and so on, 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.

1 1.1

Legal Description Legal base

1.1.1 Primary Legislation (a) Some theoretical considerations

As an important facet of social transformation, the reform, of what I would call the ways of doing justice in Romania, has been a lengthy process, hindered by severe delays by comparison with other Eastern European countries. As I have observed elsewhere, all of the major transformations within the Romanian justice system have been the product of European and international pressure (Balahur, 2004). Like these reactive strategies, the existing regulations on alternative dispute resolution have been adopted either within the framework of European integration or by virtue of the

pressure of the Council of Europe and other international organizations. In 2002, those monitoring the EU Accession Process in respect of Romanias judicial capacity recommended to the Romanian Government and Legislature the need to reduce the backlog of cases through improved case management, including (...) introduction of alternative dispute resolution (Open Society Institute, 2002:.185). It was four years before an obligation to use mediation became law.

Like other social-legal institutions, the development and implementation of restorative justice practices in Romania could be analyzed from two linked perspectives. One is a bottom-up perspective, that sees these practice promoted by civil society and supported by academic groups; the other is a top-down, in which they are framed by different policies and legal regulation. It has often been the case that within a process of reform, the Romanian authorities have agreed to changes in the administration of justice that have developed, at least initially, without their influence.6 From this point of view, Romania is not an exception. The introduction and diffusion of alternative justice strategies in Romania followed the common model identified in the countries of the European Union. Mestitz and Ghetti observed that in judicial systems any reform is introduced topdown through new norms, but VOM was almost always introduced by spontaneous bottom-up processes promoted by social and professional groups and/or movements (Mestitz and Ghetti, 2005: 17).

So far as penal law in Romania is concerned, both directions have been closely connected mainly to the reform of the juvenile justice system.
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.

Meanwhile, as the comparative analysis and research developed by the European Forum for Restorative justice observes (Aertsen et al., 2004), 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, I would like to make a brief distinction between restorative justice and victim-offender mediation. Sometimes, the two concepts are considered (or at least used) as if they were synonymous. I do not intend to enter this debate here and now. I would like only to clarify the meaning of the concepts that I will be using in this analysis. In a minimalist conception, 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). Originating in the 1970s as mediation between victims and offenders, in the 1990s restorative justice broadened to include communities of care as well, with victims' and offenders' families and friends participating in collaborative processes called conferences and circles (McCold and Wachtel, 2003). A maximalist conception considers restorative practices as a way of (re)building the networks of the organized reciprocity and civic solidarity (Putnam 1995: 20), and also community and democracy or at least the competence to be democratic (Braithwaite 2002: 132). It could also be seen, from a maximalist point of view, as a strategy for developing social capital (...) and civic participation through participatory learning and decision making (Wachtel and McCold 2000: 118).

Victim offender mediation is more specific. 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). Despite the fact that it could have (indirectly) restorative effects, 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. VOM resonates with the minimalist approach to restorative justice, an approximation to a court based resolution. However, both restorative justice practice and victimoffender mediation could be seen on the same continuum, having at one end the court system of dispute resolution and at the other informal community based strategies for dealing with conflicts. Between these two lies the wide variety of forms of alternative dispute resolution that display, in different proportions, characteristics drawn from both extremes.

(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, either under as restorative justice practices or as mediation. In short, there are ADR provisions in civil and commercial matters (conciliation and mediation), domestic violence (restorative justice), work relationships (conciliation) and in criminal matters (victim-offender mediation).

Chronologically, the first step in the regulation of ADR in Romanian law was made in 2000 through Government Ordinance nr.138 for the completion of the Civil Procedural Code. This regulates in a newly

introduced Chapter XIV, Dispositions regarding the resolution of the commercial conflicts, a compulsory procedure for conciliation. According to art.720(1), in commercial matters (...) before making a legal

complaint, the parties in conflict will try to resolve their litigation through conciliation. Based on this disposition, the Romanian Chamber of Commerce established an independent body, the Centre for the Mediation of Commercial Disputes (CMCD) which, 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, 2007). In response to an important change of direction in the promotion and protection of childrens rights, the law has ben constantly adjusted in order to prevent and to curb abuse, neglect, and violence against children and women. In particular, a new law regarding domestic violence adopted in 2003 provides alternative ways of dealing with conflicts among family members, emphasizing the potential role that restorative justice could have for rebuilding their relationships. 7 For the moment, this is the only legal regulation on which restorative programmes and practice could be based.

Law nr.217/2003 regarding Domestic Violence provides, in Chapter V (art.19-22), for mediation in cases of domestic violence.8 Article 19 states that at the request of the parties, cases of domestic violence can be referred to mediation. For this purpose the competent persons to deal with such cases will counsel the parties. Conciliation in these cases may be undertaken, according to art.20, either by a meeting of the family (the Family Council) or by an authorised mediator. Article nr.21 in Law 217/2003 defines the Family Council as an asociation without legal

7 8

Law nr,217/2003 Regarding the Prevention of Domestic Violence. Monitorul Oficial Partea I nr. 367 din 29 mai 2003 (Oficial Monitor of Romania, Part I in 29 of May, 2003).

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personality and patrimonial aim, formed by the family members who have full legal capacity according to law. In fact law 217 combines two

different ADR practices: traditional mediation and family group conferencing, though without calling it such. Nevertheless, the

conciliation provided for by this procedure, which involves the family members in conflict and a family council can readily be recognised as a variation on one of restorative justices core practices.

The initiative to run mediation through the family council belongs to one of the famly members or to the familial social worker. In either case, Law nr.217, art.20 (2) expressly states that the completed mediation procedure does not affect the criminal trial. 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. 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.

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. That is so, for example, in the case of programs designed to provide services to crime and trafficking victims, as they recover from the crime and proceed through the criminal justice process.9 In Romania, two statutory provisions have such restorative justice connections: law nr. 678/2001 (revised) regarding the Prevention of the Trafficking of Human Beings,10 and law nr.

10

International Institute of Restorative justice, http://www.restorativejustice.org/intro/ Monitorul Oficial, Partea I, nr.783 din 11 decembrie 2001.

11

211/2004 regarding the Protection of the Victims of Crimes.

11

Both

contemplate a duty to establish programs for free psychological counselling and recovery from the crime or the trafficking, and the provision of financial support and free legal assistance to engage the criminal justice process. Although it does so indirectly, Article 13 in law nr.211/2004 opens the possibility that crime and trafficking victims will benefit from mediation services.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. This new law is closely bound to the values and principles containd in the various recommendations on restorative justice declared by the EU,13 the Council of Europe,14 and the UNO.15 The Romanian legislator chose an all encompassing legal framework within which the following matters are regulated: the profession of mediator, the rights and responsibilities of the mediator, mediation procedure, and the types of conflicts (civil, commercial, family and criminal) that may be referred to mediation.

11 12

Monitorul Oficial , Partea I, nr.505 din 4 iunie, 2004. Art.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. 13 Council of European Union framework decision on the Standing of Victim in Criminal Proceedings adopted on 15th of March, 2001;Council of European Union Directive relating to Compensation to Crime Victims, adopted on 29th April 2004; A European Code of Conduct for Mediators launched at the Conference in Brussels , 2 July, 2004. 14 Council of Europe Recommendation Nr.R(99)19 on Mediation in Penal Matters.

12

The two main purposes of the law of Mediation, as the Memorandum of the Romanian Minister of Justice stated,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. The Memorandum also affirms the obligation to harmonize Romanain law with the relevant ADR European standards and regulations..

(d)

Mediation: definition and general conditions

The Romanian law of mediation does not have an explicit philosophy, aiming merely to legitimize and empower existing practice and the mediators profession. Of the seven chapters of the law, five are focused on the regulation of the profession, mediators rights and obligations, and the legal and educational qualifications required to become a mediator. 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, but close to the values of traditional court procedure. The law deliberately avoids reference to any notions of healing or of the the reparation of the harm. The section in Article 66 that deals with mediation in family matters states that during the mediation procedure, the mediator will determine whether there is between the parties an abusive or violent relationship and if so, whether the effects of such a relationship could influence the mediation, and will decide, if under such circumstances, mediation is appropriate or not. My question is, if the parties do not have a such a relationship, which is by defintion almost inevitable in these cases, what is left that is amenable to mediation?

15

16

UNO, Economic and Social Council, Basic Principles on the Use of Restorative justice Programmes in Criminal Matters, July, 2002. Romanian Ministry of Justice, http://www.just.ro.

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Chapter 1 of Article 1 defines mediation as an optional way of informal conflict resolution with the support of a third person as mediator, within the conditions of neutrality, impartiality and confidentiality (....). Mediation represents an activity in which there is a public interest. In the exercise of their competencies, mediators do not have the power to decide the content of the agreement that the parties will reach, but they can counsel them to check its legality according to the procedures set up by Article 59.17 So defined, mediation is an alternative to the court system for civil, commercial, family and criminal proceedings. According Article 2, consumer protection matters, such as personal injury or property damage caused by faulty products or services, or otherwise by breach of the contractual terms, can also be referred to mediation.

As a general proposition, the law provides for a wide range of disputes to be referred to mediation. Both legal and natural persons have the right (art.4 (3)) to resolve their disputes through mediation, both outside and within the compulsory procedures of the informal resolution procedure that the law envisages. They may also decide to refer the case to mediation even where the trial has begun. Such provisions could have an substantial impact on the courts case loads, 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. However, personal rights and any other rights from which the parties are not legally entitled to . give up to (the right to legal personality, to identity, image etc) cannot constitute the object of mediation.

17

According to Article 59, 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.

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A core value of mediation is the equal treatment of and non-discrimination between the parties during the entire process. 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. They are in addition required to advise the parties to consider the possibility.

(d)

Legal conditions, education and recruitment of mediators.

Unlike legislation in other European jurisdictions (Miers and Willemsens 2004; Mestitz and Ghetti 2005), the Romanian law on mediation provides that several conditions must all be met by those who wish to be authorized as mediators. These are (Article 7): (a) full legal capacity; (b) a degree; (c) at least 5 years professional experience; (d) no medical condition that would compromise the applicants ability to conduct mediation; (e) no criminal record and a a good reputation; (f) completion of the training courses for mediators and (g) is authorized as mediator according to thse provisions.

In their overview and comparison of VOM in 15 European countries, Mestitz and Ghetti noticed a major trend to recruit qualified experienced mediators and to provide for more or less short training periods. 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). The Romanian law lies between these two general European trends. As a general condition mediators need to have a higher education degree. The professionalization is acquired through the training courses delivered by specialized providers of education, themselves licensed according to law (art.9). Authorized mediators are registered by the Council of Mediation on the list of the

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official mediators. The list is published in the Official Monitor of Romania, Part I.

(e)

Mediators activities, 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. It regulates in a special chapter mediators rights and responsibilities. Among their most important rights are the right to inform the public about the mediators activity, with due respect to the principle of confidentiality, and the right to seek an honorarium, negotiated and decided together with the parties, and also to have their expenses reimbursed (art.26). The law also provides that the parties are obliged to pay the mediators honorarium and expenses, even where the mediation fails to reach an agreement or when the parties abandon the process before it is completed. In this last case the parties are obliged to pay a pro rata sum, taking into consideration, if need be, their own financial position (art.46 (f)).

Provisions of this kind raise, in my opinion, important questions regarding access to justice. If mediation is paid for by the parties, it will be, from the outset, a service provided only to those who can afford it, and probably a preferred strategy to avoid the court and its sanctions. In commercial or civil conflicts, 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). Why would a family that is experiencing difficulties in its members relationships with one another pay for a mediator instead of a therapist, whose own specialism might generate a better (more cost effective) outcome. And Law 217/2003, which provides for restorative justice delivered by the

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family council in cses of domestic violence, could equally prove more efficient and definitely less costly. Similarly in criminal matters, it is difficult to find any advantage in paid mediation to the court system, save the suspects desire to escape the criminal sanction.

This arrangement, whereby the cost of mediation is paid for by the parties, especially in criminal and family matters, appears to be unique in Europe. The European Forum for Restorative Justices publication, Mapping Restorative Justice: Developments in 25 European Countries (Miers and Willemsens 2004) showed that in the countries analyzed, mediation in criminal cases is financed mainly from public sources, by the Ministry of Justice, Public Prosecutor, and local government (for example, Spain, Belgium, Italy, Luxembourg, Finland, the Netherlands). In Poland the state pays a fix amount per case.

Among their professional obligations, mediators are required to ensure that the parties understand the procedure in which they will be involved, togther with the limits and the effects of the mediation (art.29). They are required to be diligent and to support the parties in arriving at a mutually advantageous agreement. Mediators have to ensure both their impartiality and a state of permanent equilibrium between the parties (art.30). The law also imposes a duty of confidentiality regarding the information and the documents that the mediator has received during the process. At the same time, mediators cannot be called as witnesses regarding the facts they have learned during the mediation (art, 32 and 37 (1)). As an exception to this rule, in criminal matters, the mediator can be a witness, but only if the parties agreed to this in writing at the outset, and, if need be, of the other people involved in mediation procedure (art.37). However, mediators are liable to be witnesses in respect of any facts of which they became aware

17

before becoming a mediator in the specific case.(art.37 (2)). All in all, the obligation of confidentiality is weak as long as the sanction for its infringement is disciplinary liability. For Romania especially, as a

corporate society, and charactised by a generalized corruption, the weakness of the duty of confidentiality could raise serious problems.

Mediators are liable for their conduct during the mediation. Article 38 specifies a number of matters that may give rise to disciplinary liability: (a) breach of the duty confidentiality; (b) refusal to answer to the judicial authorities in cases regulated by law; (c) refusal to return the documents provided by the parties; (d) representation of one of the parties within a judicial or arbitration procedure dealing with the same matter as the case under mediation; (e) other conduct that could infringe professional ethics. The disciplinary sanctions vary according to gravity of the infringement, from written warnings, fines from 50 500 lei (Euro 14-139), to the temporary (one to six months) or permanent withdrawal of the mediators authority (art.39).

(e)

The mediation procedure

The mediation procedure has, according to law, four stages. The first, the preliminary procedure, takes place before the mediation contract is concluded. It aims to bring the parties within the mediation procedure, to ask for a mediators services. When only one party asks for mediation services, the mediator will, at that partys request, invite the other to participate. The letter of invitation will establish a term of maximum 15 days within which to accept. If the other party explicitly refuses the invitation or does not sign the contract after having been invited twice, the offer of mediation is considered unaccepted and the process is closed (art.43 (1), (2) (3)). While it insists on the voluntarily nature of mediation,

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the law nevertheless provides that mediators may make any other legal approach that they consider useful for inviting the parties to the mediation process, while properly oberving the other provisions governing its use (art.43 (4)).

The mediation process cannot be carried out before the contract has been signed by the parties. The conclusion of the mediation contract, which must be in written form, constitutes the second stage. The contract must specify a number of matters, subject to absolute nullification if it does not. These are the identity of the parties; the subject matter of the dispute; the mediators obligation to explain to them the principles, the effects and the rules of mediation; the parties declaration that they freely accept the mediation; their agreement to respect the rules of mediation; their obligation to pay the honorarium and the expenses occasioned by the mediation procedure; and their agreement regarding the language in which the mediation will be carried out (art.45). concluded according to law. The contract has to be

Once the contract is concluded, the third phase, the mediation activity, can begin. By Article 50(1) the mediation process is based on the partiescooperation and on the special communication and negotiation techniques and methods used by the mediator. The parties have the right to be assisted by a lawyer (or by others), and cannot have a solution imposed on them by the mediator. Developed as an analogue to court procedure, the process resembles an informal trial. Article 55, for example, provides that where the matter gives rise to difficult or controversial legal issues, the mediator, having obtained the parties agreement, may ask for the point of view of an expert in the field. The mediation process is so deeply embedded in the

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model of court procedure that it is almost impossible to adopt a different perspective on its place in Romanian law.

The fourth and final stage is the closing procedure. This requires one of the following conditions (art.56): the concluding of an agreement between the parties as a result of the mediation, or its failure as a result of one of the parties withdrawal. Whatever the reason is, the mediator must write a note that is signed by the parties or their representatives, and by him. The agreement that the parties have arrived at has must also be written. It must register all the matters agreed between them, and be signed by them. It can be submitted either to the public notary for authentication or to the court for approval (art. 59).

1.2

Scope

Beyond its general provisions that are common to all types of mediation, Chapter VI (art.64-70) makes special provision for the mediation of the conflcts in two areas: family, and criminal proceedings.

1.2.1 Special provisions regarding mediation in family disputes As noted, ADR in family disputes already exists, holding out the possibility of restorative justice, reconciliation and the rebuilding of the couples relationship.

In practice, mediation in family disputes, as it is now constructed, could obviate divorce proceedings in court. The potential breakdown of the marriage could be addressed through mediation, as could the exercise of the husbands and wifes parental rights, decisions concerning the care of any children and the contribution to their maintenance, and any other matters between the husband and wife regarding the rights they can

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dispose according to law, for example concerning the matrimonial home (art.64). The parties submit the divorce agreement to the court which has jurisdiction formally to order the divorce.

Where there are children of the marriage, the mediation agreement should not contravene to their best interests; for this purpose Article 66 requires the mediator to encourage the partiess to focus mainly on their childrens needs. But this provides no formal guarantee that their best interests will be observed, either during the mediation procedure or after it. 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). For couples who have children, the procedure is different, and a first step that the the court takes (through a special, emergency procedure) is to decide to whom the child(ren) should be placed during the divorce.

There have been many voices that have called for divorce to be returned to the civil law, as it is a contract. This is partly right, as marriage is an agreement with obligations on each party, but it ignores the UN Convention on Childrens Rights and more recently the jurisprudence of the European Court of Human Rights, that childrens rights are superior to adultsrights, and must be observed and protected by law. Consequently, if the married couple have children, divorce procedure, whether through mediation or in court, should contain sufficiently strong safeguards that provide real protection for the rights of the child. This is not the case with the provisions in art.65 in Romanian law of mediation.

1.2.2 Mediation in criminal matters

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Article 68(2) makes it clear that the parties (victim and offender) cannot be forced into a mediated agreement. The law also contemplates that legal safeguards should apply to mediation (art.72(2)): the parties have a right to legal assistance and also, if need be, to benefit from translation services (art.68(1)).

The provisions regarding mediation are equally applicable to crimes for which the reconciliation of the parties withdraws criminal liability (art.67). This follows from Article 279 of the Romanian Code of Penal Procedure (C.p.p), which provides that for certain types of crimes18 , the charge and prosecution depend on victims preliminary complaint. In these cases, the reconcilliation of the victim and offender before the matter omes to court has a diversionary effect. All these types of crimes can be referred to mediation.

Regarding its effect, the law provides that when the mediation procedure takes place and is completed before the beginning of the trial, the mediated agreement (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). According to Article 70(1), when the mediation takes place after the criminal process has begun and the parties provide a copy of the mediation contract, the prosecution or the trial are suspended. This suspension subsists until the mediation has come to an agreement, but no more than three months from the date on which the contract was signed. If they do not reach an agreement within that period, the prosecution or the trial resumes (art.70 (2) and (4)).
18

Battery (art.180, Penal Code); Threat (art.193, Penal Code); Theft between husband an wife or between close relatives (art.210, Penal Code) etc.

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The law includes a general provision regarding mediation with children suspected of committing criminal offences. 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.

1.3

Organizational Arrangements

The comparative analysis and research conducted within the European Cooperation in the Field of Scientific and Technical Research COST A21, Restorative Justice Developments in Europe and within the European Forum for Restorative Justice (Aertsen, 2006; Mestitz and Ghetti 2005, Miers and Willemsens 2004, Pelikan, 2004, Wright, 2002) reveals the variety of the organizational and procedural arrangements for mediation within Europe. Mestitz and Ghetti (2005: 17), commenting on victimoffender mediation with youth offenders in Europe, remarked on three primary features: a. VOM is mainly an in-court or near-court procedure with the exception of Anglo-Saxon and (partly) Scandinavian countries, where VOM is an out of court strategy b. In continental and Southerm Europe there is a strong orientation to organize VOM as a public service, whereas in England and Wales and in Northern European countries private / volunteer services and groups are prefrred; c. Volunteer mediators prevail in Anglo-Saxon and Northern European countries, and professional mediators in continental and Southern 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, also display some

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important original features. Mediation in Romania is organized as an activity that is a matter that falls within the public interest (art.4(1)), but which is delivered by private mediators and paid for by the parties.

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, authorized according to law. This proposal ws removed from the enacted law. Instead, the law envisages in Article 22 that the mediators undertake the activity within the context of a professional civil society, defined as a co-operative arangement in which one or several associated mediators work together with technical staff, 19 or under the auspices of a nongovernmental organization. The result is that according to Romanian law mediation is generally possible only under private arrangements. Mediators may also establish local or national professional associations in order to promote their professional interests, and can also become affiliated to professional international organizations (art.24).

The mediation law established a national body with legal personality, The Council of Mediation, whose main purpose is to ensure the promotion of mediation and the representation of mediators interests. The Council comprises nine members, elected by and from authorized mediators. Council members are approved by the Ministry of Justice for a two year term (art.17). The Council is also responsible for the authorization of mediators and for establishing standards for professional training in mediation. It has adopted a Code of Ethics and of professional conduct. Its activities are self-financing. It raises funds from the authorization fees,
19

These kinds of societies may be established under the regulations of the Civil Code, Chapter V, Title VIII, About the Contract of Society.

24

donations, sponsorships, sales of its publications, fines applied as disciplinary sanctions, and from any other legal source (art.21).

An

Analytical

Account

off

the

Political

and

Legal

Understanding of VOM / RJ The Minister of Justices 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 emphasised that mediation had become one of the priorities in he reform of the Romanian justice system. As an alternative to the traditional, formal resolution of conflicts, mediation was better adapted to the new dynamics of social and economic life and to a wide variety of conflicts and problems (for example, domestic violence, and work relationships, civil and commercial contracts). Closely connected to arbitration, reconciliation and the informal resolution of conflicts, mediation could also relieve the courts of a substantial number of the cases with which they would otherwise have to deal. As an alternative to the formal disposition of disputes, it was also argued that mediation better satisfies the interests and expectations of the parties in conflict; it saves time, is less stressful and less expensive than conventional justice. Finally, the Memorandum paid special attention to European standards, 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.

2.1

The social and political history within which RJ / VOM was

developed The law on mediation does not exist in a vacuum. It was enacted after almost a decade of join efforts by academic researchers (D.Balahur,

25

S.Poledna, P.Abraham, S.Radulescu, D.Banciu, M.Alexiu, I.Durnescu) and civil society (The Association of Magistrates, Iasi branch, Social Alternatives Association, Iasi) to implement alternative diversion strategies and measures in the juvenile and in the criminal justice systems. 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, judges, 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. Research on an experimental project in which restorative justice practices were applied to cases of juvenile offending was carried out in 2004-2005 (Balahur, CNCSIS project). Other projects that generate synergy with these have been undertaken in recent years. For example, 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.

Taken together, these incremental steps, carried out over the past decade, combined to support a powerful movement for the reform of the juvenile justice system. Shared by civil society and the academic and legal professional communities, this movement pressed for the implementation of diversion and ADR strategies in juvenile cases. This pressure had an important effect on the legislative process. 20 It contributed to profound changes to the existing legal framework and to the introduction of legislative initiatives, 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. Changes in the Civil Code made reconciliation procedure compulsory in any commercial matters. The adoption of special laws, such as

26

often designed to support and to legitimise an already existing practice. The law of mediation can also be seen as an outcome of the pressure generated by this reform movement.

2.2

The legal culture

In order to understand legal change it is necessary to understand how social change impacts on a legal culture. 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. Attempts, for example, to harmonise the criminal and juvenile justice systems will inevitably be tentative, and will depend on the values to which social actors, which includes both officials and private indoviduals, make sense of these changes through their personal choices and their professional practices. As David Garland pertinently emphasized, The consciousness of these actors, 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, and must be a major focus of a study of this kind (Garland 2000: 24). (of structural changes and reforms; n.n. D.B).

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, which was deeply structured around the values of over-retribution (Balahur 2004). The common penal practice of that time could be briefly characterized as a presumed penal route to which there were few exceptions. The diagnosis, a young prosecutor made, in an interview conducted in 2003, is illustrative of the state of the Romanian criminal
the Children Act 272/2004, which regulates special provisions for the child in conflict with criminal law, contains important diversionary effects.

27

justice system, at least until recently. Romanian criminal justice system does not re-socialize, he observed, it is so regulated and organized, and so only amplifies the criminal behaviour. The main barriers to change

are due to the organizational culture and the values of the justice systems institutions combined with the culture and the retributive philosophy of punishment of the Romanian criminal law and practice in which prosecutors are educated..

Even so, there has ben a gradual change in the mind-set of those actors whose consent is a precondition to change. 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. This critique challenged the received and hitherto unquestioned wisdom, that once a person has entered the criminal justice system, 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. By contrast, 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 should also be noted that, especially for crimes prosecuted on the preliminary complaint of the victim, 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, time, possible penal sanctions for the offender, fines for the victim if he/she refuses without good cause to attend court etc). For juvenile justice, restorative justice is of special interest, as it could considerably reduce the number of children and young offenders sentenced with custodial measures or punishments for petty crimes, which do not necessarily represent the

28

right reparation for the offence. Instead, the juvenile justice system opens the inevitable route of a penal system which does not offer too many alternatives regarding youth offenders. Restorative justice practices could provide more satisfaction to the victim if the offender provides the right reparation and empathizes with his/her suffering. This alternative way to the trial in court could also, in my opinion, prevent re-offending and recidivism..

3 3.1

An Evaluation of Practice The degree to which the countrys legal provisions meet supranational standards

As noted, 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. These changes aim to meet the obligation to harmonise Romanian legislation with the acquis communautaire on these matters. They also seek to comply with the standards established by the Council of Europe and the UN in the field of crime victims protection, mediation in penal matters, and basic principles on the use of restorative justice programmes in criminal matters.

3.2

An evaluation of the extent, to which the implementation of these legal provisions advance, inhibit or orient the

implementation of a VOM / RJ agenda. 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 law legitimised the existing informal practice that had been developed by various private agencies. It

29

also addressed the conditions for accession to the European Union that required improvement in the quality of the administration of justice, especially through the improvement of case management, a reduction in the backlog of cases and the implementation of alternative dispute resolution.

Caseloads grew constantly during the 1990s. If in 1990 1,513 judges had 589,660 files (civil and criminal cases) with a caseload of 390 files per judge, in 2003, 3,557 judges had 1,453,776 files, with a caseload per judge of 409 files.i Under these circumstances, the effectiveness of the justice system was among the lowest in Europe, constantly monitored by the European Commission. The problems with which the formal system of justice is confronted have been aggravated by institutionally endemic corruption. 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, as the chart below shows.21

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The institutionalisation of mediation could, potentially, contribute to a decrease in the number of cases to be heard by the courts, and thus to speedier justice. 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. Equally, the evidence of the publics low level of trust in national institutions, in particular in the courts, does not inspire any confidence that matters will quickly improve. It may be that we can be confident only the publics low expectations about what the justice system can achieve for them will be fully met.

21

According to the national pool data published by the Centre for Urban and Regional Sociology (CURS), www.curs.ro, Decembre, 2005.

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References

Aertsen, I., T.Daems, and R.Luc., The Institutionalizing of Restorative Justice, Willan Publishing, 2006. Aertsen, I., R.Mackay, C.Pelikan, J.Willemsens, M.Wright, Rebuilding Community Connections. Mediation and Restorative justice in Europe, Council of Europe Publishing, Strasbourg, Cedex, 2004. Balahur, D., Probation and Community Reintegration. Probatiune si reintegrare comunitara, Bucuresti., Ed.Didactica si Pedagogica, 2004. Balahur, D and P.Balahur, The Discontents of the European Modern Law: Restorative justice in a Pluralist Europe, Paper presented at the First International Conference of Sociology of Law (Onate, Spain), 2005. Balahur. D., Childs Rights Protection as a Principle of Social Work, Bucharest, Ed.All Beck, 2001. Balahur.D, Child and Childhood in Romania, in Greenwood Encyclopedia of Children's Issues Worldwide, Greenwood Publishing Group, USA, 2007. Balahur, D., B.Littlechild, R.Smith., Juvenile Justice Reform and Restorative justice in Romania and UK, forthcoming. Balahur, D., Juveniles in conflict with criminal law. The sociological analysis of the social and legal implications of the Romanian juvenile justice reform, Research Project Funded by Romanian National Council for the Scientific Research in Higher Education (CNCSIS), 2004-2005. Braithwaite, J., Restoratoive Justice and Responsive Regulations, Oxford University Press, 2002. Bazemore, G., M.Schiff., Juvenile Justice Reform and Restorative justice. Building theory and policy from practice, Devon, Willan Publishing, 2005. Castells, M., The Rise of Network Society, New York, Blackwell Publishing, 2000. Garland, D., The Culture of Crime Control. Crime and Social Order in Contemporary Society. Oxford, Oxford University Press, 2001.

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Karstedt, S., and K.Bussmann., Social Dynamics of Crime and Control, Oxford, Hart Publishing, 2000. Ladeur, K. H., Public Governance in the Age of Globalization, Aldershot, Ashgate, 2004. Mayerhofer, W. L., After the Welfare State in S.Karstedt and Bussmann K, Social Dynamics of Crime and Control, Oxforr, Hart Publishing, 2000. McCold.P, and Wachtel, T., In pursuit of paradigm: A theory of restorative justice. Paper presented at the XIII World Congress of Criminology, Rio de Janeiro, Brazil. http://www.realjustice.org/library/paradigm.html, 2003. Mestitz, A and S.Ghetti., Victim-Offender Mediation with Youth Offenders. An overview and comparison of 15 countries, Springer, 2005. Miers, D and J.Willemsen (Eds)., Mapping the Restorative justice. Developments in 25 European Countries, European Forum for Restorative justice, 2004. Open Society Institute , EU Accession Monitoring Program , Monitoring the EU Accession Process: Judicial Capacity, Budapest, Q.E.D Publishing, 2002. Putnam, R., Bowling Alone, Revisited in The Responsive Community. Rights and Responsibilities, Vol.5, Issue 2, 1995. Teubner, G., Global Private Regimes: Neospontaneous Law and Dual Constitution in K.H. Ladeur, Public Governance in the Age of Globalization, Ashgate, 2004. Waitekamp, E, H.J.Kerner., Restorative justice in Context. International Prcatice and Directions, Devon, Willan Publishing, 2003. Wachtel, T and P.McCold., Restorative justice in everyday life in John Braithwaite and Heather Starang (Eds.) Restorativr Justice in civil society. New York, Cambridge University Press, 2000. Wright, M., Justice for Victims and Offenders. A Restorative Response to Crime, Winchester, Waterside Press, 2002.