Tools in Network: an E-Net Approach to Sharing Mediation Competences.

The main recommendations of the Council of Europe

- The Recommendation on participation of the public in crime policy, Committee of Ministers of the Council of Europe, Rec. n° R(83)7 of 23 June 1983: an adequate crime policy should be directed towards the prevention of crime, the promotion of alternatives to custodial sentences, the social reintegration of offenders and the provision of assistance to victims. A critical factor to reach these objectives is the active participation of all segments of society. This document also stresses the importance and the advantages of non-custodial treatment of offenders as better suited measures to promote their re-socialisation.

- The European Convention on the Compensation of Victims of Violent Crimes (Council of Europe n° 116 of 24 November 1983): Member States agree to introduce the necessary schemes to guarantee economic compensation to victims of violent crimes, in particular when the offender has not been identified or is without resources to personally satisfy the victim.

- The Recommendation on the position of the victim in the framework of criminal law and procedure, Committee of Ministers of the Council of Europe, Rec n° R(85)11 of 28 June 1985: Member States are invited to consider the opportunity to introduce in their legislation instruments for conflict resolution based on "mediation and conciliation schemes". They are further recommended to provide adequate victim protection at all stages of court proceedings and to promote and encourage research on the efficacy of provisions affecting victims.

- The Recommendation on Social Reactions to Juvenile Delinquency, Committee of Ministers of the Council of Europe, Rec n°. R(87)20 of 17 September 1987. This document aims at giving juvenile justice a rather derogatory function when compared to adult justice system. To this end, it encourages the application of a global policy directed to foster the social reintegration of young offenders, the application of procedures to avoid minors coming in contact with the justice system, also through déjudiciarisation measures like mediation. Finally, in the third part of the document, a number of principles on juvenile justice are identified.

- The Recommendation on assistance to victims and the prevention of victimisation, Committee of Ministers of the Council of Europe, Rec. n° R(87)21 of 17 November 1987: to avoid further victimization Member States are invited to encourage experiments (whether on a national or local basis) in mediation between the offender and his/her victim and evaluate their results with particular reference to how far the interests of the victim are served. In general, the text invites to develop national policies able to protect the victims' needs also supporting the establishment of national organisations which advance the interests of victims.

- The Recommendation concerning mediation in penal matters, Committee of Ministers of the Council of Europe, Rec n° R(99)19 of 15 September 1999. This is a crucial text on penal mediation and constitutes the basis for several further documents. First of all, this recommendation offers a definition of penal mediation including any programme that allows the parties (offender and victim) to participate freely and actively in the resolution of matters arising from the crime through the help of an impartial third party (mediator). Such classical scheme can have different contents. As to the possible outcome, mediation can end with a simple exchange of opinions and apologies, with a reparation activity in favour of the victim or the whole community (social work) etc... The European model of penal mediation provides that it be available at all stages of the criminal justice process. The basic idea is to allow the parties to exit traditional court proceedings any time thanks to a method of conflict resolution that shall receive the validation of the competent judicial authority. In fact the genetic link between mediation and judicial system does not disappear because of the autonomy and independence of the former from the latter. The judge is still the competent judicial authority to decide on mediation both at the beginning and at the end of proceedings (Mariavaleria del Tufo, "Questioni Giustizia" 2003 n° 4, pp. 723 et seq.). The Recommendation identifies a number of key-points to be considered by domestic legislation: before agreeing to any type of mediation the parties must be informed of their rights, the nature of the mediation process and the possible consequences of their decision; neither the victim nor the offender should be induced by unfair means to accept mediation and their consent is always freely given and informed. In referring a case to mediation the judicial authority must take into account any obvious disparities with respect to factors such as the parties' age, maturity or intellectual capacity. Discharges based on mediated agreements should have the same status as judicial decisions or judgments and should preclude prosecution in respect of the same facts. If no agreement is possible or mediation is not applicable for the unavailability of one of the parties, the case is referred back to the criminal justice authorities. Finally, the document gives indications on the qualifications and training of mediators and invites to promote research and evaluation on penal mediation.

- The Recommendation concerning prison overcrowding and prison population inflation, Committee of Ministers of the Council of Europe - Rec n° R(99)22 of 30 September 1999. A new invitation to adopt forms of restorative justice of "victim-offender mediation" and "victim compensation" is introduced in the wider strategic plan to reduce prison overcrowding.

- The Recommendation concerning new ways of dealing with juvenile delinquency and the role of juvenile justice - Committee of Ministers of the Council of Europe n° R(2003)20 of 24 September 2003. This recommendation derives from the previous ones concerning juvenile delinquency and justice. In particular it invites all Member States to develop a broader spectrum of innovative and more effective community sanctions and measures especially those involving restoration and reparation to the victim, including mediation. These instruments are to be implemented with the main purpose of the social reintegration and education of the offender. The term "victim", used just once in the recommendation of 1987, is here mentioned 21 times. The introduction mentioning the main objectives of this recommendation also emphasizes the need "to address the needs and interests of victims".

The Council of Europe, as it appears from these long list of provisions, played a fundamental role in the international context to promote juvenile justice and namely restorative justice. This European agency showed interest above all in penal mediation but did not ignore wider fields as family mediation (see Recommendation R (98)1). As years go by its regulative strategy has stayed true to its first recommendations, reaffirming them but always introducing new elements. Their main aim is to give juvenile justice a greater realism and adapt it to social change. The last mentioned recommendation, for instance, is not just a simple repetition. Compared to past documents the interest for the victim and its needs appears predominant here. Therefore also restorative justice is seen as "continuity and innovation" (for a detailed analysis of the recent European trends in juvenile justice see Marc Dalloz, Le Direttive europee in materia di giustizia minorile, in AA.VV. Atti del Colloquio "Dove va la giustizia minorile? La riforma minorile in Italia e Francia", 15-16 April 2005).