RECONCILIATION COURTS: FIRST PROBES AND PROSPECTS

Julia Kachalova

Any society can be described from the standpoint of what tools it uses to support fair interpersonal relations. It is hardly a matter of chance that in our present attempt to find a way out of social blind alley we turn back to the lost tradition of communality characteristic to pre-revolution Russia. In particular, principles of communal law are being scrutinized, which helped - along with finding out who was right and who was wrong - keep intact personal relations between members of the community. For instance, in letters of a young lawyer commended by the Russian Senate to a rural area, we find the following example of how communal law was executed. Seniors had to judge a case where two peasants argued ownership of a piece of land. The hearing resulted in two-thirds of the lot awarded to the man who was judged to have more rights to own it, and 1/3 of the lot - to his opponent, though the jury had found his claim ungrounded. The young lawyer felt somewhat confused with the jury decision. "Why the rightful owner is not awarded the entire lot?" he asked. And the seniors explained, "Land is only land, after all, and these two will have to live in our neighborhood for the rest of their days."

After the Revolution, conflicts and criminal offences were subjected to settlement through oppressive and administrative mechanisms. Modern Russia has inherited the earlier system's hard belief in forceful execution of the law as the only way to keep the society under control and prevent its members from mutual annihilation. It is for this reason, it seems, that no one looks at all annoyed with law guards practicing bold violations of human rights, suspects locked in crammed and messy preliminary prisons, and police officers beating folks to death for minor infringements. Silent public consent encourages militsia's habitual attitude towards their fellow citizens as selfish liars and criminals.

Social tissue is strengthened with regular personal ties and contacts in families, at work, and in the community. Whenever they are broken, samples of normal human relations are lost; the social tissue thins out, soaks with enmity, and finally falls apart. That is exactly the situation we face today. To some extent, the restitution law offers the remedy that helps cure enmity-poisoned human relations, for it has inherited communality principles of conflict settlement.

Introduction of non-court adjudication is among possible directions for reforming the official law-enforcement system. On one hand, it will imply restricted application of punitive action; on the other hand, it will attract local communities to participate in conflicts settlement, crime abatement, disciplining citizens, and restoring good relations between individuals.

The first attempt to implement the concept of pre-court adjudication in Russia was undertaken by Mikhail Flamer, Anna Grasenkova, and Rustem Maksudov of Court and Law Reform Center. In October 1998, they published the initial draft of their program aimed at reconciliation between victims and offenders. "In the situation where many politicians, senior police officers, media, and public are infected with the idea of "warfare against the crime", we believe that implementation of non-court adjudication in Russia is to be started with reconciliation programs for minors," Rustem Maksudov says.

The basic procedure of non-court adjudication is reconciliation between the injured and the offender. The Criminal Code often implies that an immature offender will be prosecuted far more strictly than it is reasonable if compared with actual consequences of the committed offense. It is no secret that penitentiaries for immature convicts succeed in producing life failures rather than in their correctional function. According to Mikhail Flamer and Rustem Maksudov, the key driving reasons for young offenders' parents to participate in reconciliation meetings is their willingness to do everything they can to correct their children behavior, and at the same time, to prevent their commitment in penitentiaries. That was exactly the situation with one of initial cases withdrawn from a prosecutor's office for reconciliation procedure.

A boy of 11 went shopping and returned home robbed of all the cash he had. His father's investigation resulted in his poor son having a bad fit. Finally, his parents found it out that their boy was robbed by three teenagers. The indignant father turned up at police station. Young robbers of seventeen, sixteen, and thirteen were arrested on the same afternoon. They even did not have time enough to finish their feast at a local McDonalds fast food (which was their idea of what they could do with the ridiculous Rub24 they had earned). The smaller boy was freed, while the other two faced the prospect of being sent to a penitentiary for several years on gang robbery charge.As soon as the robbed boy's father learned about young offenders' prospects, he agreed to bring his son to a reconciliation meeting. Offenders also agreed to attend, because they understood that settling the case with the victim might help soften future decision of the court.

Among primary goals of reconciliation meetings is to help visualize consequences of the offense. In the above example, the young offenders came to rather different understanding of what they had done. Not only taking away 24 rubles, but ruining the poor boy's trust in safe and good world around him - that was the price of their silly action. Even a month later, at the point of reconciliation, the boy felt distressed when he remembered that awful day. Since then, he was reluctant to go outdoors for the fear of being robbed again. It is highly important that either party have a chance to speak out what they have to say. The 16 year old robber who had taken money from the victim's pocket was no longer the personification of all the evil in the world after he used his chance to explain his motives. It turned out that hid friends always paid for their lunches at local McDonalds, and he never had enough money to pay up for their gratuity. So, on that very day, he decided that - at whatever price - he would get some money and earn their friends' respect back. In addition, the robbers explained to their victim what was wrong with his behavior on that day. Instead of standing like a mesmerized rabbit in face of the constrictor, if he pushed them off, or ran away, or cry aloud, the extorters would readily disappear.

With feelings expressed and answers found, parties gradually change their attitudes to each other, and rethink their respective roles in the situation. Mikhail Flamer, the facilitator at reconciliation meetings, remembers that those guys were sincere in their understanding of what they had done and their regret about it. As for the robbed boy, the meeting helped him return the sense of safety, and his father even offered the offenders his help in finding a job, so they could earn money instead of taking it away from others in any illegal fashion. Therefore, another objective of reconciliation is to achieve the state where parties to a criminal conflict have come to mutual apology and absolution. This process strongly depends on facilitator's skillfulness in directing the dialogue between the parties to a constructive channel.

Remembering his first episodes, Rustem Maksudov says, "In the initial period, we lacked skills necessary to conduct adjudication sessions. For example, there was a case where we believed that parties were reconciled, and the district prosecutor's office rejected the reconciliation act and banned all our programs. To some extent, it was our own fault: we should have made it all clear with prosecutors' position before we started, negotiated with them the filing procedure and the model reconciliation agreement, which, in fact, actually required many improvements at that stage. However, eventually we managed to fine-tune facilitation techniques and come to much better understanding of pre-court adjudication concept itself."

An important distinction of pre-court adjudication programs as compared to traditional court filing procedures is that it is focused on personal consequences and implications rather than on finding 'the truth'. Having heard victims' witnessing their feelings, teenage offenders usually become more serious about consequences of their deeds. Victims, in turn, after their emotion have been expressed, temper their anger, and their hatred gives way to willingness to enter a dialogue with the offender. Of course, many criminal offenses are beyond such "settlement": pathological or serial rapists, for instance, are hardly expectable to be successful adjudication cases, as well as tough guys' battles for the pie. We hope, nonetheless, that the scope of cases suitable for pre-court adjudication will be defined sooner rather than later.

At present, the main hindrance to wide public acceptance of pre-court settlement concept is the prevailing apprehension that an offender is the criminal once and for all. And as soon as such a fiend has been caught by authorities, he's better off penalized as strictly as possible. Adjudication court law, however, is based on the different approach, where any person must have a chance to improve. And the task of the society is to give him such a chance in appropriate environments.

Of course, implementation of this approach is far more painstaking than habitual isolation of offenders. "Well, you have adjudicated a case, and then the same teenager will commit another crime - either because of his mentality specifics or lack of proper control by his family. That is why we need to isolate them," argue police and prosecution officers opposing the Court and Law Reform Center approach. However, the above argument may be removed with practical steps rather than further discussion. Certainly, if a family's status and controls over children is inadequate, if the family fails to provide positive motivation, if a teenager has nothing to fill his/her days with, the probability of repetitious illegal actions will be rather high, even after successful adjudication of standalone cases. For this reason, the Court and Law Reform Center specialists are at work on a technology to help tie adjudication and social aid programs. "In case of progressing asocial behavior," Rustem Maksudov says, "we invite a social worker who will organize certain activities to correct the specific situation driving a teenager towards further criminal acts. In such cases, a reconciliation agreement may include an additional clause that the offender shall undergo a social and psychological rehabilitation program under a social worker's control. A rehabilitation program contents may be agreed upon in the course of adjudication meetings with the participation of all parties and after detailed discussion with the offender himself. Some cases may require assistance of behavior correction specialists. For instance, some juvenile offenders merely fail to recognize the illegal nature of their actions and what consequences they cause to others. If such is the case, a psychologist or rehabilitation service will be offered."

As long as asocial behavior is often provoked by a teenager's affairs in family, at school, or in his company in the neighborhood, the Court and Law Reform Center specialists plan to widen the scope of their programs application. To their opinion, timely conduct of reconciliation, social rehabilitation and correction programs at schools and in certain families where teenagers are involved in repetitive conflicts will help prevent many criminal developments. It is highly important to detect and monitor cases of violent conduct, settle conflicts at their initial stage, and thus avoid harder consequences that will have to be dealt with by criminal rather than adjudication courts.

The Center specialists have agreed with Commissions on Immature Affairs, police departments, and schools that those organizations will report information about situations that may require a reconciliation program. At the same time, based on information reported by schools, families and social workers, reconciliation programs are offered to families where chronic misunderstanding between parents and their children results in continuous conflicts and, eventually, theft and violence. In addition, the Court and Law Reform Center is doing its best to promote inclusion of the Pre-court Reconciliation section in professional training programs for immature oversight officers, district police inspectors, social workers, schoolteachers and other specialists.

No doubt, the wider the scope of pre-court reconciliation applications, the lower the level of enmity in family, at school and in local communities, and the more humane relations in our society will be. For more information, contact the Court and Law Reform Center. Tel. 129-98-01

This material draws on an interview with Mikhail Flamer and an article by Rustem Maksudov, "Restitution Law Examples in Russia"