The starting point of this research is the generally recognised thesis that Bulgaria’s existing criminal justice system is in need of change because it is far from efficient and does not function satisfactorily.

Crime victims are neglected, and the number of victims has increased in recent years.  Since the State’s response to crime is ineffective, victims do not trust the abilities or good intentions of law enforcement agencies.  Therefore they refer matters to the police only in the most hopeless and desperate situations. 

Low rates of detection and conviction mean a significant number of victims cannot exercise and enjoy their rights. Even though the idea of victim compensation is not alien to existing legislation, it is not fully realised. Finally, the extremely long and tortuous trial process causes secondary victimisation. 

Legislators have given priority attention to offenders, reflecting democratic changes following 1989, but one cannot say that offenders benefit by the current situation.  The established retributive model has resulted in constant overcrowding in prisons. The substantial increase in prison population has forced increased expenditures by prison services.  The stigma of prosecution has led to further marginalization of huge numbers of offenders.

The potential benefits of involving the public in crime prevention and rehabilitation of offenders has been totally ignored. However, legal anthropology has identified a diversity of forms of conflict resolution – mediation, arbitration, reconciliation, ombudsman, reparation negotiation programs, family and community group conferences, etc.  These processes are part of the restorative justice movement that has emerged over the past 30 years as an increasingly influential worldwide alternative to criminal justice practice.

Chapter One analyses the nature of conflict, including crime, and the ways to settle it.  A scrutiny of relevant literature shows that by the end of the twentieth century a new type of conflict resolution emerged, rivaling the traditional approach to settlement by courts.  Consensual models of conflict resolution are being propagated as alternatives to classical patterns of confrontation. While phenomena and terms differ, these new arrangements are  increasingly grouped under the heading of Alternative Dispute Resolution. They are not intended to replace court adjudication, but rather to supplement it. Alternative Dispute Resolution provides an opportunity to resolve conflict creatively and effectively, finding the process that would best suit particular disputes and parties.  In essence, it represents a movement away from formal adversarial proceedings, toward informal processes. It forms one part of a broader  movement  to reform the administration of justice, originally emerging in the United States, but now spread throughout the world.

Although such procedures have always been used in civil and labour law as well as in addressing international disputes, this recent development has taken on different dimensions and qualities, embracing both public law and criminal law.  Mediation, for example, has infiltrated all sectors of social life.  This procedure, which used to be rather exceptional in nature, is currently being presented as a universal remedy. 

The definition of the United Nations Working Party on Restorative Justice has been adopted for this research:

‘Restorative Justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.’ 

Restorative justice is considered a new way of thinking about crime and criminal justice, emphasising the ways in which crime hurts relationships between people who live in a community. Crime is seen as something done against a victim and the community – not simply as lawbreaking and violation against the State. Restorative justice provides for an expanded role for victims and requires offenders to take responsibility for their actions and for the harm that resulted. Restorative justice involves the community in a variety of preventative and responsive programs to bridge gaps between people, build their sense of safety and strengthen community bonds.

Restorative Justice functions through a variety of practices.  The most widespread are victim-offender mediation, family/ community/group conferences, and sentencing circles. This chapter explores victim-offender mediation in depth and due attention is paid to its “bright” and “dark” sides.

Although not altogether new, the mediation movement of today draws support from different ideological sources and strands of thought. It has been stimulated from within as well as without the criminal justice system.  The idea of mediation unites several groups including those who

• want to reconstruct long foregone models of conflict resolution

• want to strengthen the position of victim

• seek alternatives to punishment

• want to reduce expenditures for and workloads of the criminal justice system or render such system more efficient.

Victim-offender mediation can be described as a flexible, comprehensive, problem-solving, participatory, and complimentary alternative to traditional criminal proceedings. The process provides an interested victim the opportunity to meet his/her offender in a safe and structured setting, engaging in a discussion about the crime with the assistance of a trained mediator. The goals of victim-offender mediation include:

• permitting victims to meet their offenders on a voluntary basis

• encouraging the offender to learn about the crime’s impact and to take responsibility for the resulting harm

• providing victims and offenders the opportunity to develop a plan that addresses the harm. 

Chapter Two presents existing victim-offender mediation programs, legislation and practices in four countries – the US, Norway, Austria and the UK. Due attention is paid to restorative justice practices in some Central and Eastern European countries.

In the genealogy of modern mediation programs, American models have acted as trendsetters, although they are often mere revivals of existing institutions. The trans-Atlantic debate on Victim-Offender Reconciliation Programs and Neighbourhood Justice Centers has prompted the re-emergence of mediation in Europe. A coalition of researchers, politicians and practitioners has created a climate of innovation and experimentation.  The majority of programs target young offenders and are based on a variety of operational philosophies. Some programs are sponsored exclusively by courts or prosecutors. Others are more community-based, receiving referrals directly from the community, rather than the justice system.  Most programs, however, are a hybrid of the two, remaining independent of the formal justice system but maintaining close ties with it, and taking referrals from justice system agencies.

The Norwegian model of mediation is primarily based on Nils Christie’s theory that the state has “expropriated” conflicts between citizens, and that conflicts should be “returned to their proper owners.”  After all, it is those who “own the conflict” who should be given the opportunity to solve it.  The municipal mediation board system in Norway is also a product of the debates on new criminal policy during the 1970’s and 1980’s. At that time juvenile delinquency was increasing and the effectiveness of the traditional justice system towards this group was in question. Alternative conflict resolution came into focus.

The Norwegian municipal mediation boards have a dual nature: they practice mediation as an alternative to traditional criminal proceedings, but also accept cases concerning other forms of conflict within the community, i.e. purely civil conflict and minor offences that have not been handled by the prosecution authorities (mostly criminal cases where the offender is under the age of criminal responsibility).

At present, different groups within society and political parties express quite contradictory interests in mediation boards in Norway. The opposing questions are 

• Should such boards become a true alternative to the criminal justice system as well as “a neutral room“ within society where all citizens regardless of their age could bring their conflicts?

• Should they be treated as new means of punishment, and therefore become an extension of the criminal justice system?

On the continental stage, Austria has been а pioneer and leader in the field of victim-offender mediation since the mid-1980s.  The legal provisions for mediation in the context of criminal law are found in the Juvenile Justice Act of 1988 and in the Criminal Procedure Law Amendments of 1999.  Austria provides an example of a nation-wide mediation policy and practice, which although not entirely uniform, is geared towards widely accepted general guidelines and based on common purpose.

The mediation process, as it is handled and experienced, is the result of the concerted efforts of social workers and the judiciary to find a practical way to retain state control of the responses to conflict, while keeping this control “temporarily dormant”, and drawing on the indigenous conflict solving abilities of the parties and on the potential of informal social control.  This reflects an intention to strike a balance between an informal, common-sense procedure on the one hand, and the need to respect basic human rights and due process requirements on the other.

Studies show that mediation in penal matters in Austria does function well – more and more cases (involving juvenile and adult offenders) are referred to mediation, the level of satisfaction is extremely high, and recidivism rates are getting lower and lower.  This is why it is considered “the Austrian miracle”.

In the United Kingdom the mediation phenomenon is characterised by the extreme diversity of the models used. There are services working pre-court, at court and post-court, in the community and in prison.  In court, the result of a mediation may or may not be taken into account in sentencing.  Pre-court and post- court mediation does not influence sentencing. This variety is reflected in the different kinds of organisations involved in victim-offender mediation: probation services, social services, police, prisons, youth justice centres, voluntary sector child welfare organisations and community mediation services.

The English court system has a very long tradition of involving members of the public as lay magistrates and jurors. The introduction of victim-offender mediation provides another way in which the community can be involved. There is of course no suggestion that mediation could replace courts. Courts continue to be used for determining guilt or innocence where charges are denied, and for determining the sanction where the victim and the offender do not agree on appropriate reparation.

Although early development in the UK was painfully slow, the Crime & Disorder Act of 1998 and the Youth Justice & Criminal Evidence Act of 1999 have increased the potential for restorative practices to be used within the youth justice system.

Chapter Three sets out the historical, legal and social arguments for introducing victim-offender mediation in Bulgaria’s criminal justice system.   It explores views of both law enforcement authorities and general public. Statistical data were collected and analysed and a research experiment was launched. The final conclusions are that victim offender mediation will

• relieve the pressure on the judiciary

• help to strike the right balance between the victim’s needs and the offender’s rights and overcome some of the problems associated with imprisonment

• offer less costly methods of dealing with crime that are at the same time more humane and less reliant on punishment. 

Victim offender mediation is therefore a relevant response to current needs in Bulgaria.  It should be integrated as much as possible into the existing system as a measure of diversion and an alternative to the conventional criminal procedure, enhancing the quality and efficiency of justice as a whole.

The chapter explores how certain elements of the theoretical model of victim-offender mediation might be adjusted to the Bulgarian legal and social environment.  It discusses potential risks, offers proposals to reduce the possible negative impacts and suggests practical guidelines. Proposals de lege ferenda are submitted to the attention of the Bulgarian legislator.

Dobrinka Chankova

December  2002