The legal systems in civil law societies such as Portugal apply the legality principle that limits the discretion of judges and prosecutors to divert matters from criminal proceedings.
This article, summarized from a paper by Federico Marques and João Lázaro, reviews efforts in Portugal to introduce victim offender mediation using existing legal measures. The full article is attached for download.
The Lei Tutelar Educativa, or Educational Guardian Law, 166/99 of 14 September 1999 commits the juvenile justice system of Portugal to rehabilitation of young people, defined as those between the ages pf 12 and 16.
Within the framework of the ‘guardianship’ approach of this law, cases can be referred to mediation by prosecutors or judges and at the request of the young people or their guardians. This is often done as a means of developing more appropriate sanctions than would otherwise be used.
Those that seek restoration include:
Reparation to the victim through an apology, financial restitution, or undertaking an activity related to the harm that benefits the victim
Payments to non-profit organizations Community service
Mediation is often used to develop a behaviour plan for the young offender that in turn can be used by the prosecutor to suspend the proceedings. All agreements resulting from a mediation session are subject to approval by the courts.
Within the Ministry of Justice, the Instituto de Reinserção (IRS) – the Social Rehabilitation Institute - is responsible for the rehabilitation of juvenile offenders and therefore for implementation of mediation in juvenile cases.
Through its Mediation Implementation Programme (changed to Mediation and Restoration Programme in 2004), the IRS has worked to raise the awareness of magistrates and other judicial authorities about mediation as a possibility for diversion of young offenders.
In 2002, mediation programmes dealt with 183 juvenile cases including larceny, destruction of property, offences against physical integrity and robbery. Unfortunately, only 28% of victims agreed to participate in the mediation process.
For this reason, the researchers state that the results have been ‘positive but not restorative.’ In 2005, the programme only received 171 cases between January and September.
Only one programme has developed in response to adult offending. Although neither the Penal Code nor Criminal Procedure Code provide for victim offender mediation, the Criminology School at Oporto University developed a Restorative Justice and Mediation Project in 2004.
The purpose of this programme is to provide mediation services while investigating attitudes toward restorative justice.
It uses the ‘opportunity principle’ of criminal proceedings that allows prosecutors to suspend proceedings and ask for expert input on cases as a mechanism for including mediation.
From December 2004 to July 2005, 15 cases were referred to this programme with 7 of those reaching an agreement.
Another pilot programme is planned by the Restorative Justice Unit of the Portuguese Association for Victim Support.
While restorative justice has seen a slow start in Portugal, this is a time of change. New legislation is being developed that will give more support to restorative measures.
Once the law is implemented, two mediation services will be developed as pilot projects.