sou · GOB3105d1 · 2001-01-01 00:00:00 — The Commission was required to propose legislation based on its findings if such a course of action appeared desirable. Mediation methods are used in in several different contexts. The kind of mediation encompassed by the Commissions terms of reference is that arising from offences by young offenders. Such mediation ordinarily means that the perpetrator of an offence and the victim, after the necessary preliminary preparation, meet together with an impartial mediator. At the meeting, both parties relate how they have experienced the offence. The perpetrator is given the opportunity to make an apology to the victim and the parties can discuss how the perpetrator can compensate the victim and come to an agreement on this. The philosophy underlying mediation is called Restorative . Restorative can be defined as a process in which the parties involved in an offence meet so that they may together deal with the effects of the offence and its future consequences. Mediation following an offence can have several aims. Mediation can, inter alia, lead to an increased insight on the part of the perpetrator concerning the consequences of the offence, and therewith reduce the likelihood of relapse into crime. Two other important purposes are to give the victim the possibility of working through the feelings aroused by the offence and to receive some form of recompense from the perpetrator. A number of Swedish mediation activities concerning young offenders have, in the main, evolved spontaneously during the second half of the 1980s unguided by political decision making. In , the Government requested to initiate, monitor, co-ordinate and evaluate an experiment with mediation projects. Thirty-two projects in different parts of the country were selected for the experiment by the then in collaboration with on Mediation. The experiment was maintained for one year. The majority of these projects continued after the experimental period ended. and above the selected projects, mediation is undertaken in some twenty other places in . Chapter 3 of the original report in Swedish describes the possibilities under current legislation to make use of mediation and the young offenders to make recompense for the offence. Thus, a policeman may, under certain circumstances, invite a perpetrator who has, or appears to have, reached the age of 15 but not 18, to take steps as soon as possible to make recompense for, or limit the harm arising from, the offence. This action is provided for under Section 13 on the on Special Provisions concerning (1964:167). In addition, mediation can have an influence on a prosecutors decision on possible prosecution. The fact that mediation has taken place can also influence a courts decision on the choice of sanction and the of punishment. Chapter 4 of the original report in Swedish describes mediation in an international perspective. This chapter includes an account of adopted by in 1999. The use made of mediation in other countries is also described with emphasis on the experience of the Nordic countries. Chapter 5 describes a variety of research studies and findings concerning mediation following an offence. Chapter 6 describes the experiment mentioned above. evaluation of the experiment is summarised in Chapter 7. Chapter 8 describes a project for young offenders and family group conferences undertaken in ten municipalities under the auspices of the Association for . In addition to the victim, the members of the perpetrators personal social network are invited to take part. The discussion includes not only matters connected with the offence but the entire social situation of the young offender. The Commissions conclusions and recommendations Is mediation a suitable measure for use in connection with youthful offending? evaluation of the experiment shows that mediation with young offenders can exert a positive influence on both the perpetrator and the victim. International research studies have demonstrated the same result. Although it cannot be shown that mediation results in a reduced likelihood of relapse into crime, the Commission is of the opinion that its many advantages mean that it must be considered a worthwhile method. The Commission considers, therefore, that mediation with youthful offending is a measure that should be used more widely than at present. The experience of perpetrators and victims of mediation The experiment has shown that mediation influences perpetrators positively, especially where the victims were private persons. The Commission considers that mediation can have a rehabilitating effect upon young persons. During the experiment, victims of crime felt that their interests were taken fully into consideration and, in consequence, that they had a meaningful role. Victims who, as private individuals, had been exposed to an offence reported the most positive experience. It appears to the Commission that mediation with the more serious offences has more to offer victims than perpetrators. The Commission concludes that mediation can, in many cases, constitute a positive experience for victims. The trial use of family group conferences, with mediation included, has been too limited for any far-reaching conclusions to be drawn. Nevertheless, the Commission considers that such family group conferences can exert a positive influence on perpetrators. With family group conferences, however, it is essential that the co-ordinator who leads the deliberations, has a good knowledge of the needs and reactions of victims of crime. It can be advantageous to arrange for the meeting between the perpetrator and the victim to be undertaken separately from the main meeting deliberations since the victim may find it unpleasant to have to meet all those who form part of the young offenders social network. Are current possibilities to make use of mediation sufficient? The Commission considers that the present possibilities within the criminal system to know if mediation has been, or should be, used are insufficient to promote its use. , mediation with youthful offending should be given a more prominent place in ordinary criminal proceedings. Should mediation activities be regulated or in some other way made more uniform? The Commission considers that there is a need for clearer rules on the relation of mediation to criminal . Some regulation of mediation activities is also called for in order to provide guarantees of equity and fairness. The regulation of mediation activities and making them more uniform would probably be of importance for the promotion of mediation and give it legitimacy. But since mediation is a method under development, regulation must allow for further development and, therefore, not be too detailed. The Commission proposes that special legislation on mediation with youthful offending be introduced to provide a general framework. The Government, or an authority designated by the Government, should then give more specific instructions on the application of the law. Mediation as a sanction The question of the place that mediation should have in criminal proceedings led the Commission to discuss whether it should constitute a special sanction. The Commission concluded, however, that since mediation, inter alia, builds upon the voluntary participation of victims of crime, it would not be appropriate to introduce mediation as a criminal law sanction. Conditional waiving of prosecution The Commission also discussed whether it should recommend a waiving of prosecution conditional upon mediation. This would mean that a prosecutor would decide to abstain from prosecution on condition that a young offender took part in mediation proceedings. If this condition were not met, the prosecutor would initiate prosecution. Such a conditional waiving of prosecution can entail, inter alia, an advantageous procedural economy. But the Commission concluded that it was undesirable to create a situation in which young offenders felt themselves forced to agree to mediation in order to avoid prosecution. Moreover, if the criminal system offers too many advantages to perpetrators, there arises a risk that young offenders might agree to take part in mediation for the wrong reason, that is without truly regretting the offence and being prepared to apologise for their behaviour. If young offenders can avoid prosecution by accepting a condition of mediation, there is an obvious risk that they do so simply to avoid prosecution. Such a system could even expose the victim of crime to yet further injury. There is also the risk that a victim of crime might feel obliged to take part in mediation in order to prevent a young offender from being prosecuted. The Commission concluded, therefore, that waiving of prosecution conditional upon mediation was not a suitable measure and should not be introduced into criminal procedure. Mediation as a special ground for waiving of prosecution Instead of waiving of prosecution conditional upon mediation, the Commission recommends that the fact that a young offender has taken part in mediation should constitute a special reason for waiving prosecution under Section 17 of the on . This would, in the main, avoid the negative effects of conditional waiving of prosecution. If the young offender fails to comply with terms of the agreement reached in mediation with the victim, the prosecutor should be empowered to rescind the waiving of prosecution. The Commission fully accepts the desirability of dealing speedily with cases of youthful offending, but proposes that the time allowed for a decision on prosecution under Section 4 of the on , be lengthened in cases involving mediation. In order to achieve a uniform application of the proposal described here, the Commission considers that the Prosecutor-General should promulgate new broad instructions giving more precise advice on its use. The courts possibilities to take mediation into consideration The Commission recommends an addition to Chapter 29, Section 5 of the Penal Code in order that the courts when choosing a sanction and the of punishment should be able to take into consideration the fact of mediation having occurred. The courts can also take account of mediation possibilities when handing a young offender over to the social welfare authorities if the latter have included mediation in the treatment plan for the young offender. The Commission has not found it necessary to propose any other changes in other existing possibilities to take mediation into consideration. How should mediation proceedings be organised? During the period of the experiment described above, mediation has chiefly taken place within the framework provided by municipal social welfare. , in its evaluation of the experiment, has judged it desirable for mediation to take place in this way. The Commission shares this view. A major reason for this opinion is that mediation thereby would be available throughout the country – an essential condition from the point of view of fairness and . Mediation also is fully congruent with other activities undertaken by the social welfare authorities on behalf of young people who have committed offences. The Commission holds that it is necessary to make mediation a formal obligation for the municipalities through a law requiring that mediation be a part of the municipalities social welfare activities. The Commission, therefore, proposes a special provision on this question in the on Social Welfare (1980:620). The proposed legislation should not regulate mediation in detail but only provide the necessary framework for it. Detailed regulation would be undesirable having regard to the fact that municipalities vary in size and that mediation is a method under development. Smaller municipalities with a low level of youthful offending are provided with opportunities to collaborate on the creation of mediation possibilities under the provisions of Section 4 of the on Social Welfare. Finally, the Commission considers that there needs to be set up a national co-ordinating body to ensure, inter alia, a high quality in mediation activities and to be responsible for questions of training, work method development, etc. It recommends that be the co-ordinating body. General considerations concerning mediation The Commission presents a number of proposals on mediation for young offenders. The Commission holds that certain basic requirements on mediation activities must be fulfilled. To begin with, mediation must in every case fulfil at least one of the aims mentioned earlier, i.e. it shall seek to provide young offenders with increased insight into the consequences of crime and offer victims an opportunity to work through their experience of the offence. Mediation shall be undertaken voluntarily by both participants. It is essential that mediation be so designed that the victim especially, but also the perpetrator, feel that they have real possibilities to refuse participation. A further basic requirement is that the young offenders have admitted their offence. In any case, young offenders must have accepted responsibility for the main elements of their offence even if they do not admit to all the assertions of the victim. Mediation proceedings should not constitute some sort of minor court hearing and, therefore, on principle questions of guilt should not need to be decided during the mediation meeting. offenders should be given an opportunity to apologise to the victim during the meeting. The meeting should conclude with some form of agreement between the participants. Finally, it is a basic point of departure that the mediator should be impartial and seek to help both participants to the extent necessary. Which age group(s) should be able to engage in mediation? The Commission considers that mediation should chiefly be available for young offenders who are between 15 and 17 years of age. Special procedural rules and even a special sanction system already applies to this age group: this should facilitate the use of mediation. The likelihood of being able to influence perpetrators and provide increased insight into the consequences of crime appears greater with a young age group. In addition, victims are more generally likely to be willing to meet young perpetrators than older ones. However, the Commission has no wish to exclude even perpetrators who are between 18 and 20 years of age. And for perpetrators who are under the age of criminal responsibility (children under 15 years of age), mediation should be available as a form of treatment. Which offences are suitable for mediation? In order that mediation shall be undertaken, it is essential that the offence should have been reported to the , that the young offender has admitted guilt or at least admitted a main responsibility for the offence and has consented to mediation. For the mediation procedure to come into being, it is obviously necessary to require that the victim has consented to participate. The commission holds that it is not necessary to exclude any particular offences from the possibility of mediation. However, sexual offences and the so-called victimless crimes are usually neither suitable nor susceptible of mediation. The more serious the offence, the greater the need to consider the victim. evaluation suggests that the experience of mediation participants is greater when the offence has concerned a private individual rather than a juridical entity. Should mediation be possible with recidivist offenders? The Commissions view is that mediation should primarily be undertaken with first-time young offenders. Nevertheless, the Commission does not exclude the possibility that it can be suitable even with young offenders who have relapsed into crime. Whether mediation is a suitable procedure must be decided in the individual case. But further mediation is in principle excluded if the young offender has previously been the subject of mediation and failed to adhere to the mediation agreement. At what stage in criminal proceedings should mediation be possible? The Commission considers that mediation should be possible at any stage. But the model for mediation proposed by the Commission builds primarily on the idea that mediation shall take place before a final juridical decision has been taken on the offence. No matter what the stage in criminal proceedings for mediation, it is important that it should be arranged speedily. Who should initiate mediation and how should it be arranged? The Commissions view is that the , prosecutors and the social welfare authorities are best fitted to initiate mediation. Even the courts should be able to do so in certain cases. Unless it is inappropriate, the should routinely ask young offenders if they are willing to take part in mediation, and should inform the social welfare authorities of the reply. Contact with the victim, however, should be undertaken by those responsible for mediation. If the question of mediation has not previously been taken up, the prosecutor should ask the social welfare committee in his request for information to ascertain the conditions for mediation. The social welfare authorities can also take up the question of mediation independently. Finally, the court can initiate mediation in connection with a request for information from a social welfare committee. The mediation meeting exists to help both the perpetrator and the victim. The precise way in which the meeting should be conducted should not be formally regulated in detail. It is, however, of the greatest importance that both the perpetrator and the victim receive sufficient information and are assisted to prepare for the meeting before it takes place. A useful way of doing this is with an individual prior meeting with the mediator. person exercising parental or guardianship responsibility over either perpetrator or victim should ordinarily be present during the mediation meeting. The results arising from a mediation meeting The results of a mediation meeting depend, inter alia, on the kind of offence dealt with, the demands of the victim and the perpetrators attitudes and possibilities. The mediator should ensure that any agreement reached is of reasonable character. The agreement should state whether the complainant has a right to demand compensation for injury should the agreement not be followed or whether the agreement is a substitute for such a right. The authority responsible for the mediation should check whether the agreement has been honoured and ordinarily inform a prosecutor if this is not the case. What persons should act as mediators? The Commission does not consider that it had a sufficient basis to judge whether mediators are best drawn from professional circles or should be . It is incumbent, therefore, upon the authority responsible for mediation to decide this question. Irrespective of the category of person chosen to act as mediator, he or she should be impartial and have undergone suitable training. The provisions on confidentiality under Chapter 7, Section 4 of the on Confidentiality (1980:100) apply to both categories of mediators. The importance of collaboration between the various authorities involved The different routines that exist between the , prosecutors and the social welfare authorities for dealing with young offenders can, in the view of the Commission, be used equally well with mediation. Setting up collaboration groups with representatives of the various authorities involved can be a useful way to ensure and improve collaboration. It is also essential for mediation authorities to be represented on victim support bureaux and they should be members of local crime prevention councils. Indirect mediation means that the parties involved in the offence do not meet face-to-face but have their viewpoints communicated instead by the mediator. The commission holds that indirect mediation should only be used under exceptional circumstances. These circumstances are most likely to arise when the victim does not want to meet the perpetrator face-to-face, but wishes to have his or her views transmitted to the perpetrator. The commission emphasises that it is important that the social welfare authorities take the victims views and questions seriously. It is essential that the victim should not be seen or used as an instrument to further the rehabilitation of the perpetrator. Mediation activities should be monitored and evaluated. Research on mediation should be undertaken. Financial implications, etc The recommendations made by the Commission can, if implemented, lead to somewhat increased expenditure for the municipalities. At the same time, however, the demands made on the criminal system may be reduced to some extent. The proposals made should have a crime preventive effect. The Commission recognises that time is needed by the municipalities and to prepare mediation activities. The Commission considers, however, that it should be possible to implement its recommendations as from . 2. om den tilltalade har deltagit i medling enligt lagen (2000:000) om medling vid ungdomsbrott eller på annat sätt efter förmåga sökt förebygga eller avhjälpa eller begränsa skadliga verkningar av brottet, 1 Förslag till lag om ändring i Härigenom föreskrivs att 29 kap. 5 § skall ha följande lydelse. Vid straffmätningen skall rätten utöver brottets straffvärde i skälig omfattning beakta 1. om den tilltalade till följd av brottet drabbats av allvarlig kroppsskada, 2. om den tilltalade efter förmåga sökt förebygga eller avhjälpa eller begränsa skadliga verkningar av brottet, 3.om den tilltalade frivilligt angett sig, 4.om den tilltalade förorsakas men genom att han på grund av brottet utvisas ur riket, 5.om den tilltalade till följd av brottet drabbats av eller om det finns grundad anledning anta att han kommer att drabbas av avskedande eller uppsägning från anställning eller av annat hinder eller synnerlig svårighet i yrkes- eller näringsutövning, 6.om den tilltalade till följd av hög ålder eller dålig hälsa skulle drabbas oskäligt hårt av ett straff utmätt efter brottets straffvärde, 1 Senaste lydelse 1988:942. 7. om en i förhållande till brottets art ovanligt förflutit sedan brottet begicks eller 8. om någon annan omständighet föreligger som påkallar att den tilltalade får ett lägre straff än brottets straffvärde motiverar. Föreligger omständighet som avses i första stycket, får rätten, om särskilda skäl påkallar det, döma till lindrigare straff än som är föreskrivet för brottet. Denna lag träder i kraft . 2 Förslag till lag om ändring i lagen (1964:167) med särskilda bestämmelser om unga lagöverträdare Härigenom föreskrivs i fråga om lagen (1964:167) med särskilda bestämmelser om unga lagöverträdare dels att 4, 6, 11, 17 och 22 §§ skall ha följande lydelse, dels att det i lagen skall införas en ny paragraf, 4 a §. En förundersökning mot den som inte har fyllt och som gäller brott för vilket det är föreskrivet fängelse skall bedrivas med särskild skyndsamhet. Förunder- sökningen skall avslutas och beslut i åtalsfrågan fattas så snart det kan ske och senast för delgivning av brottsmisstanke enligt 23 kap. 18 § första stycket . Tidsfristen får överskridas endast om det är nödvändigt med hänsyn till utredningens beskaffenhet eller andra särskilda omständigheter. En förundersökning mot den som inte har fyllt och som gäller brott för vilket det är föreskrivet fängelse skall bedrivas med särskild skyndsamhet. Förunder- sökningen skall avslutas och beslut i åtalsfrågan fattas så snart det kan ske och senast för delgivning av brottsmisstanke enligt 23 kap. 18 § första stycket . Tidsfristen får överskridas endast om det är nödvändigt med hänsyn till utredningens beskaffenhet eller andra särskilda omständigheter eller om den misstänkte skall delta i medling enligt lagen (2000:000) om medling vid ungdomsbrott. 1Senaste lydelse 1998:608.