Germany

Provides a listing of articles on restorative justice developments in Germany. Articles appear in the order in which they were added to the site with the most recent appearing first.

Lindström, Peter. Zero tolerance criminal policy and restorative justice: A hidden link?

Currently in many criminal justice systems there are two divergent trends: increasing insistence on “zero tolerance�? for crime (meaning more prosecutions and stiffer, more uniform sentencing); and increasing advocacy of discretionary alternatives to conclude cases before full adjudication through the courts, or to create more flexible sentencing options. Primarily within the Swedish context, Lindstrom examines these realities, with particular reference to shoplifting, including among juveniles. He argues that abandoning discretionary alternatives in favor of strict “zero tolerance�? will not increase public safety, and will not redress the harm caused by crime, but will overwhelm the criminal justice system.

Wachtel, Ted and McCold, Paul. Restorative justice theory validation

McCold and Wachtel maintain that the rise of restorative justice practices has preceded theory. Nevertheless, the social sciences have a vital role to play in providing description, theory, and evaluation. Assertions about what constitutes good practices should be tested; that is, the scientific method (proposing and testing theoretical concepts) should play a critical role in developing a valid restorative justice theory. Toward that end, in this paper the authors aim to test the validity of key hypotheses derived from restorative justice theory with currently available research.

Zehr, Howard. Journey to belonging

Howard Zehr in this paper explores what he calls the 'journey to belonging' for both victims of crime and offenders. He acknowledges that some may find it problematic and even offensive to address both 'journeys' at the same time, especially to the extent that it suggests there might be parallels or even intersections in the situations of and transitions for victims and offenders. Nevertheless, he believes both victims and offenders are on a journey, or a continuum, of life changes colored by crime and its aftermath. Underlying his topic and title ('Journey to Belonging') is the notion that alienation, belonging, and identity are central issues for victims and offenders in the wake of crime. Moreover, through the course of his paper, Zehr frames his exploration of these issues through the lenses of tragedy and trauma, experiences which encompass and yet go beyond what we normally refer to when we speak of crime and its effects.

Trenczek, T. Victim-Offender Reconciliation: THe Danger of Cooptation and a Useful Consideration of Law Theory

The conceptual orientation and implementation of Täter-Opfer-Augleich (TOA), the German version of victim-offender reconciliation programs (VORP), in the criminal and juvenile justice systems of Germany brings some dangers with it. If can hide the real nature and character of conflict mediation and prevent elements of restorative justice from giving up their shadowy existence. The practice of TOA for the most part is far from corresponding to the basic idea of conflict resolution and reconciliation as well as to established professional reconciliation standards. Conspicuous is the multiple search for niches of acceptance and an adaptation to inappropriate ideas out of the world of juvenile welfare and criminal law. TOA/VORP in its conception is not the ideal way to foster a restorative justice approach but, on a continuum of possible steps for the treatment of conflicts, it is useful. If victim-offender reconciliation has any essential meaning, it is not because of its modest attempts at practical realization but because it makes the essential tasks of law clear to us.

Drumbl, Mark A. Sclerosis: Retributive Justice and the Rwandan Genocide

In the 1994 Rwandan genocide 800,000 people were massacred. The victims were overwhelmingly of the minority Tutsi ethnic group and the aggressors of the majority Hutu group. At present, 125,000 Hutu prisoners remain incarcerated while awaiting trial on genocide-related charges. This article argues that these trials, and the extensive incapacitation that necessarily precedes them, may do little to promote justice, regime legitimacy, or national reconciliation in Rwanda. This, in turn, raises broader questions about the role of criminal punishment and sentencing in situations of mass violence. Criminality usually attaches to deviant conduct. Mass political violence – from Nazi Germany to Serbia to Rwanda – generally involves significant levels of public participation and complicity. How, then, should we punish conduct that, at the time it was committed, was not deviant? The thesis is advanced that restorative and transformative justice initiatives are effective at deconstructing complicity and can play a valuable part in the legal response to genocide. These initiatives may take the form of public inquiries, extra-judicial mediation, reparations, commemorations, and truth commissions. This thesis runs counter to the international legal community’s embrace of the punitive criminal justice model as the preferred and often exclusive way to ‘deal with’ perpetrators of genocidal violence and crimes against humanity.

Daly, Kathleen. Ideals meet reality: Research results on youth justice conferences in South Australia.

Noting the optimistic views held by many with respect to the potential of restorative justice, Daly emphasizes the need for careful research to assess actual practices in relation to ideals. In this context, her paper presents findings from the South Australia Juvenile Justice (SAJJ) research on youth justice conferences in South Australia. The SAJJ research methodology is sketched as a preliminary to summaries of key findings in the following areas: procedural justice and restorative justice; questions about repairing harm; issues relating to the quality and significance of conferences; victims’ experiences of conferences; and the effects of conferences on re-offending.

Wright, Martin. "The development of restorative justice."

Historical account, with reference to North America, Britain, Germany, Spain, Austria, and Australasia.

Löschnig-Gspandl, Marianne and Kilchling, M. Victim/Offender Mediation and Victim Compensation in Austria and Germany: Stocktaking and Perspectives for Future Research

Victim/offender mediation according to Austrian legal doctrine is the generic term for various ways of compensating victims. This includes compensation for any personal injury, loss, or damage caused, whether directly or indirectly, by an offense; reconciliation talks, apologies, and help for the victim; and community service or payments to public welfare institutions. In Austria, victim/offender mediation is a central feature of juvenile justice processing. Germany's criminal law provides for various forms and benefits of mediation for victims of juvenile and adult offenders. These include face-to-face meetings between victim and offender, as well as requirements that offenders compensate victims. From 1992 to the end of 1995, approximately 5,500 charges against adult offenders were settled through victim/offender mediation in Austria. In Germany, from 1977 to 1993 victim compensation imposed by public prosecutors declined from 1.5 percent to 0.7 percent of all dismissed cases. Compensation imposed in cases of court dismissals, however, remained constant at approximately 8.5 percent. In absolute numbers, this is approximately 5,200 cases a year. Evaluation research indicates that victims are most satisfied with victim/offender mediation programs that result in compensation for the victim. They are less committed to mediation that focuses on reconciliation and the resolution of conflict between the victim and the offender. 98 footnotes

Bannenberg, Britta. Victim-offender mediation in Germany

Bannenberg sketches the historical background to victim-offender mediation in Germany. In the mid 1980s many began questioning the criminal justice system in Germany. Sanctions did not reduce crime or recidivism. Victims were largely ignored by the system except as a piece of evidence in the criminal proceedings. Some began discussing the rights and needs of victims, restitution, conflict resolution, victim-offender mediation, abolition of prisons, and other new ideas and practices. Pilot projects in victim-offender mediation began in the mid 1980s in several cities. In 1986 a Victims’ Protection Act was passed. Victim-offender mediation programs grew noticeably in juvenile justice, but were more limited in adult criminal law. Other provisions were added to the legal codes in the 1990s. These provisions touch upon victim-offender mediation, reparation, compensation, restitution, and even reconciliation. (The paper includes an appendix with relevant sections of German legal codes.) There is discussion of extending victim-offender mediation programs to those already in prison. The legal framework permits all forms of mediation from investigation to imprisonment, both in juvenile justice law and adult criminal law. Yet police seldom refer cases to mediation services. Lawyers are not widely familiar or experienced with the possibilities of mediation. And recourse to mediation is finally at the discretion of public prosecutors and judges. Bannenberg presents statistics on the number of cases of victim-offender mediation, status of mediation services, and programs working with adults or juveniles or both.

Dünkel, Frieder. Täter-opfer-ausgleich: German experiences with mediation in a European perspective

As noted by Dünkel, mediation projects, for both juvenile and adult criminal justice, have expanded and gained support in Germany since the beginning of the 1990s. To detail this situation, Dünkel surveys both the legal and conceptual frameworks for mediation in Germany. Within these frameworks, various forms of organizing mediation exist. Criteria for assignment of cases for mediation are discussed. Some research data on mediation have been collected, but more research needs to be done. Dünkel concludes by sketching the prospects for mediation and criminal justice policy in Germany.

Harris, Nathan. Shame and guilt in restorative contexts

Starting from Braithwaite’s reintegrative shaming theory, Harris reports on a research study – conducted in Australia as part of the Reintegrative Shaming Experiments – to ascertain the nature of shame-related emotions in restorative justice conferences and court cases, and the impact of those emotions. The paper begins with a literature review on distinguishing the sources of shame and guilt, the object of shame and guilt, and the seriousness of shame and embarrassment. Harris then explains the current study and its examination of the relationships between shame, guilt, and embarrassment. This involves description of the research method; the key findings on shame, guilt, and embarrassment; and analysis of those results.

Weitekamp, Elmar G. M. "Restorative justice: Where we are and where might we go?"

In this conference presentation, Weitekamp explores the present state of restorative justice and prospects for the future. He notes that observations about problems with the current paradigm of criminal justice are common. Many tout restorative justice as a new paradigm offering an alternative and better way forward. Its roots are ancient and varied, yet in its contemporary forms it is beginning to influence some aspects of criminal justice. However, Weitekamp argues, its influence remains limited at this time; retributive criminal justice remains the dominant approach. Throughout his analysis, Weitekamp explicitly acknowledges some of the paradoxes, problems, and promises of restorative justice.

Hudson, Joe and Galaway, Burt. Restorative justice: International perspectives.

This book addresses the theory, research, and practice of restorative justice in the United States, England and Wales, Australia, New Zealand, Japan, and Germany. Chapters are organized according to the following emphases: part 1 deals with the theory for restorative justice practice; part 2 deals with restorative justice practice among indigenous peoples; part 3 deals with particular issues relating to restorative justice practices; and part 4 deals with the application of restorative justice in particular programs. Contributors include a number of leading academics and practitioners in criminal justice, and restorative justice in particular.

Rössner, Dieter. "Mediation as a basic element of crime control: Theoretical and empirical comments."

Citing the legal and social situation in Germany, Rössner examines the value of victim-offender reconciliation and mediation (peacemaking) in dealing with criminal offenses. He traces how reaction to wrongdoing in thought and history generally sorts out into retributive or restorative responses; in his view, retributive criminal theory ill serves justice. In contrast, restorative responses better serve justice and crime control. Rössner details this by discussing the function of restorative justice in crime control. He then reviews the situation of criminal policy and restorative justice practices in Germany in the past decade.

Holland, Frederick Peter. “Mass violence and ubutabera: Exploring the boundaries of justice and reconciliation in post-genocide Germany and Rwanda.�?

This dissertation is about the difficulties posed for traditional conceptions of justice when both state and citizenry are complicit in the commission of the radical crime of genocide. The sheer numbers of people involved in such crimes, as well as the unique nature of the crime itself, present enormously complex problems for justice, and, by extension, the human-rights ideals of civilized peoples in the twentieth (and now twenty-first) century. Using actual juridical and other formal responses to the Holocaust and the Rwandan genocide as empirical grounding, two conceptions of justice (punitive and restorative) are tested against these real-world problems and outcomes. The "boundaries" of justice in these cases are the limits of punishment and forgiveness, neither of which can cope with criminality on this scale. As a result, the best we can hope for is a partial, incomplete justice, a justice that leaves huge numbers of people (the majority of the perpetrators) unpunished, and (probably) unnamed and unacknowledged, and hence points to the inadequacy of traditional conceptions of retributive justice in such cases. I argue that the scale of such crimes simply overwhelms the scope of this traditional conception of justice, and thus requires a broader, more socially transformative approach with an eye to future generations. The proposed solution, like the reach of traditional justice, is also a partial and incomplete one--functional "noble lie" that creates a shift in a peoples' sense of themselves, a "noble lie" that brings about a fundamental transformation of national ethos, or "re-identification"--a process that, at best, takes place over much time and many generations. It is a process which (at best) evolves over time, and gradually permits a people release from the ontological burdens imposed by history, memory, and guilt.

Marianne Loschnig-Gspandl and Kilchling, Michael. "Legal and Practical Perspectives on Victim/Offender Mediation in Austria and Germany."

The article describes the theoretical framework of restorative justice from a victim perspective. In light of the results of empirical -- mostly victimological -- research, victim/offender mediation (VOM) is regarded as a victim-related approach that puts the victim in a better position than do regular criminal proceedings. Austria and Germany have made VOM available for cases involving both adult and juvenile offenders. The article includes a comparative overview of provisions available to impose compensation and mediation in both countries, and compares official statistics. The different rates of application lead the authors to conclude that VOM is of great practical relevance in Austria, whereas the German criminal justice system is still unwilling to apply VOM to a similar extent. The authors find this particularly disturbing in light of the fact that demands for mediative reparation as well as for additional punitive forms of compensation have been persuasively documented by victim research.

Michael Kilchling and Hartmann, Arthur. "The Development of Victim/Offender Mediation in the German Juvenile Justice System from the Legal and Criminological Point of View."

The theoretical introduction shows that mediation in Germany is different from models such as, e.g., conferencing in Australia. The development of VOR in Germany is then reported in an account of three studies. The first is a report on the official court statistics. According to these statistics, compensation and mediation/VOR are still rather rare phenomena in Germany. The second study is a survey of the VOR projects collecting data on implementation and caseload. It turned out that in 1996 about 9000 VOR cases (offenders) had been dealt with. But the numbers of VOR cases differ considerably from region to region. Most projects have not more than 20 cases a year whereas a small number of projects with high caseloads deals with the majority of all VOR cases. The third evaluation is a documentation of VOR cases of 42 projects. This study reveals that more than 70% of VOR cases concern violent crimes. The acceptance of VOR among victims and offenders is still high.

Jehle, Jörg-Martin. Criminal justice in Germany: Facts and figures.

In this paper, the author reviews the main criminal justice data in Germany. Data are presented for police crime figures on recorded crime and suspects, types of cases, all levels of prosecution, sentencing and punishment sanctions, imprisonment, and probation. The paper also includes a review of the criminal prosecution process in Germany.

Wandrey, M. "Organizational Demands on Mediation Programs: Problems of Realization."

This paper analyzes the realization of mediation programs in Germany focusing on three problem areas in the field of mediation practice that hinder a successful introduction of victim-offender mediation (VOM) in Germany. The relevant details given here are based on the authorís experiences as advisor in the programís planning and organization, as well as his participation in its practical implementation and in continuing education efforts in the field of victim-offender mediation.

Walter, M and Wagner, A. "How Police Officers Manage Difficult Situations: The Predominance of Soothing and Smoothing Strategies."

A study of the management of 128 conflict situations by uniformed police in Bonn, Germany. Data were obtained by means of participant observation and were categorized according to areas of conflict and conflict management strategies. Conflict situations were dealt with passively (cooling-off of the conflict, downgrading the conflict potential, and delegating the final resolution to other institutions) in more cases than active intervention by the police even in situations such as domestic conflicts and conflicts involving physical attacks in which the parties expected active participation of the police. Further research should investigate the factors that influence strategies used by the police