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

The Shortcomings of the Current Victimology Approaches

Taking account of the ongoing re-discovery of the standing of victims, what reparative tools are made available by the Italian judicial system to protect victims?

As regards standard judicial proceedings, except for the less serious offences that fall within the scope of competence of justices of the peace, the only restorative mechanisms made available to victims are pecuniary in nature. However, the measures taken by Italy would appear to be limited in scope also from this standpoint. Unlike other European countries, Italy's legal system has not provided for a "public law right" to compensation of the individual victim, to be exercised vis-à-vis the State if the offender is unable to fulfil such obligations. Indeed, all European countries except for Italy and Greece have such measures in place, although different solutions have been implemented; the model case of the French INAVEM - Institut national d'aide aux victimes et médiation should be mentioned here, being a body set up in 1986 and made up of several locally-based associations whose budgets are however supervised by the Ministry of Justice. This situation is actually in conflict with the provisions enshrined in major international instruments - more specifically, with the European Convention dated 24 November 1983 on compensation of the victims of violent crimes, which was adopted by the Council of Europe and is yet to be signed and ratified by Italy, as well as with the 1985 UN Declaration of the basic judicial principles for the victims of crime and abuse of power, and the 1989 Resolution by the European Parliament on compensation of victims of crime (as recalled by Del Tufo in Linee di politica criminale europea e internazionale a protezione della vittima, p. 711 et seq.). Rather than setting up a public, general system of social support, the Italian lawmakers decided to make use of case-by-case support initiatives that only apply to extraordinary and/or urgent situations. Reference can be made in this regard to the Acts on terrorism, organised crime, and for the protection of victims of extortion and usury - e.g. Act no. 172 dated 18 February 1992, which set up the Fund for Supporting Victims of Extortion; Act no. 414 dated 12 November 1999 setting out urgent provisions to safeguard the victims of extortion and usury; and Act no. 512 dated 22 December 1999, which set up a Revolving Fund to support the victims of Mafia-related criminal offences.

The rationale underlying the international guidance in this area is that the obligations to be fulfilled by each State are twofold - on the one hand, each State should ensure the rehabilitation and social inclusion of offenders, whilst, on the other hand, victims should be supported and protected with the help of a public mechanism for ensuring compensation. Furthermore, the safeguards afforded by a State should go beyond this and envisage free-of-charge, immediate support actions to benefit both victims and - where appropriate - their family members (health care, psychological support, legal counselling services). On the other hand, one should take account that regulatory loopholes do not result from a criminal policy approach that is averse to such actions, but rather from economic considerations. Providing for a public law right to compensation would entail relying upon considerable financial resources, which are currently non-existent.

The need for complying with the indications coming from the international community would do away with any inequalities of treatment of European citizens based on their respective nationalities. In the age of a common area of freedom, security, and justice, where the pace of movement is becoming ever quicker, the co-existence of different national laws would ultimately be more beneficial to certain individuals on account of the place where the offence is committed - see, in this connection, the decision by the Court of Justice of 1989 in the Cowan v. Trésor Public case, whereby all Member States' nationals that are victims of an offence committed in a different jurisdiction must be afforded the same protection as the nationals of the Member State in which the criminal offence took place.