Archiwum Kryminologii (Archives of Criminology)

9-28

Authors: Beata Czarnecka-Dzialuk

Mediation as a method of conflict resolution also applicable to conflict resulting from an offences is the alternative of legal solution of disputes, a technique shared by various models that promote the use in practice of consensus. This novel plocedure fot conflict resolution (which is however derived from the traditions of the oldest societies) - a consensual one, based on agreement between parties - has been developing most dynamically over the recent decades, and pervaded all branches of the law in most legal systems (H. Jung, T. Marshall). In the specific context of criminal justice, mediation does not necessarily aim at conflict resolution. For this reason, it is defined as a process, where parties to proceedings are offered the possibility to actively participate in resolving issues that result from the offence, and are assisted in so doing by an impartial third person or mediator. Mediation may take a variety of forms (direct or indirect); it may be conducted by professional or lay mediators, under auspices of the law enforcement agencies or by an independent social organization, and the parties to it may include not only the victim and the offender but also their relatives and other supporters as well as representatives of the criminal justice system. As has already been mentioned, the origins of mediation between the offender and his victim date back to the oldest past when all issues related to harm involved in acts that are today treated as offences were adjusted in the course of negotiations by those directly concerned assisted by their families and clans. The offences was seen as a conflict between the victim and the perpetrator, with due consideration to the social context. Once the function of reacting to crime was taken over by the state, the reactions initially resembled the modern rules of civil law. Later on, when crime was interpreted as violation of the order established by the ruler, penal sanctions aimed not only at compensating the victim but also at supporting the authority of the state. Although Nils Christie's picture of the state stealing the conflict is a convincing illustration of this situation, the fact should be borne in mind that the state's taking over of the function of punishing was an immense cultural achievement of its time, especially for those members of the conmunity who were too weak to vindicate their claims (B.-D. Meier). Solutions that provide for specific forms of consensus can also be found in modern legal systems. In the area of mediation between the victim and offender, the practice outpaced theory. It was inspired, among other things, by examples of "community justice'' of non-Western cultures; by the movement on behalf of victims, the progress of victimology, the diversion conception, and abolitionism; by the theory of social peace and conflict resolution and by the conception of reparatory justice. This latter conception deals with most problems posed by the other ones. It is, however, difficult to define, and its essence is difficult to explain, especially if we try to embrace threads important for all the trends on which it bases. Thus in the end, a simpler definition suggested by T. Marshall won general acceptance: "reparatory justice is an approach to crime, oriented on solving the problem, which engages perionally all parties involved in it as well as the community, in active relation to the public sector institutions. It is not a specific activity but a set of ruled that may set the direction of the bulk of actions of all institutions or groups related to crime. Reparatory justice is a process in which all parties involved in a specific offence meet to reach a joint solution of the issue of effects of crime and conclusions for the future". This definition was subsequently modified somewhat by other authors. In particular, it was accepted by an international body - the International Research Network on Reparatory Juvenile Justice in its Leuven Declaration of May 1997 concerning advisability of promoting the reparatory approach to juvenile delinquency. Reparatory justice is discussed as a specific trend, approach, philosophy or even idea; according to most authors, however, it has not yet developed into a consistent theory, although incessant efforts are made towards this aim. The term "reparatory justice'' is attributed to R. Barnett; H. Zehr's contribution is the first general model of that justice as an "alternative paradigm of justice" whose main principles are opposed to those of the traditional retributive justice. Also J. Braithwaite's idea of "reintegrating confusion'' was of importance for the development of the reparatory justice conception. It is associated e.g. with Hirschi's theory of control, Matza's neutralization theory, Luhmann's systemic theory, and also with the traditional penal law theories under which evil has to be compensated by punishment, but compensation involving suffering prohibits a better arrangement of social relartions. Instead, reparatory justice balances the harm involved in crime through action aimed at compensation and “doing good” (Ch. Pelikan, B.D. Meier). M. Wright stresses that this conception largely tallies with the common-sense ideas as to how society should react to crime, supported by appropriate actions, analysis, and studies. Mediation and other restorative reactions are sometimes shown as responses that function instead, parallel or within the traditional justice system. Much speaks, however, for integration of reparatory justice with the criminal justice system. The approach that isolates mediation altogether from criminal justice pays insufficient attention to the danger of inequality of the parties to mediation in the area of efficient execution of their conflicting interests. Thus public interest requires that the course and results of mediation proceedings be supervised. The manner in which reparatory justice may replace repressive one depends first and foremost on the seriousness of crime. It is not in all cases that a purely reparatory reaction should be recommended as sufficient. This is among the frequent arguments of critics of reparatory justice (although even its supporters accept the existence of limits to its application). Skeptics also stress that reparatory justice violates a number of generally accepted rules of procedure, especially that of equality before the law (which, however, could be disputed) and the offender’s procedural rights due to him in criminal proceedings (which is in fact a weakness of reparatory justice, but collisions might be solved by appropriate rules and standards of the reparatory process or e.g. by judicial review of negotiated solutions). The conception of reparatory justice is often explicated through opposition of the basic models of reaction to crime (although faulty in some respects, this method well illustrates the most fundamental features). Reparatory justice is sometimes called the "third path'', an alternative to the (neo-) retributive penal law and the rehabilitation model which proves ineffective, and a fully mature self-standing model (L. Walgrave, I. Aertsen). M. Wright stressed two spccial ideas that distinguish reparatory justice from the traditional criminal justice system. The first of them is that the process itself constitutes an essential element of the reaction, that it is constructive and may even have a therapeutic importance. The other idea is compensation interpreted in a much broader sense - from symbolic actions such as work to those reducing the risk of the offender relapsing into crime. The justification and legitimization of mediation in criminal cases bases not only on new theorietical conceptions. Such justification can also be found in the assumptions of the traditional justice system. This is what B.D. Meier did assuming as his point of departure the penal law system's public function, including in particular that of restoring public order that has been violated through crime, and also that of preventing repeated violations. The traditional systems have always provided for two or three different models of reaction to crime. Prevalent is punishment imposed on the person who has been found guilty. The second model involves imposition of special measures irrespective of the offender's liability (security and preventive measures). The third model, of crucial importance for legitimization of mediation in the criminal justice system, consists in renouncing formal proceedings, e.g. in view of slight social harmfulness of the act, the fact that no public interest is involved in the imposition of penalty, or reasons of general and special prevention. According to T. Marshall, justifications of reparatory justice (fulfilled i.a. through mediation) should be sought in the community nature of the offence and its effects. Explaining the theoretical foundations of mediation between the victim and the offender is a complex task because of the multitude of its sources as well as theories and conceptions quoted, and particularly because of the lack of agreement as to the essence of the usually quoted conception of reparatory justice and as to its treatment as "competitive'' with fespect to traditional justice or (for which interpretation I would like to declare) as that system's highly profitable logical supplementation, improvement and expansion. Also in Poland, the practice of actions involving mediation have outpaced the theory: for several years now, there has been quite a rapid growth in its application in practice. In both spheres, there are many problems and challenges worth taking up. At the same time, expanding the theory is of importance for the practice. Explanation of the ideas, aims and foundations of mediation and of its position with respect to traditional justice is paramount for the institution's reasonable development, evaluation and shaping towards its meeting the expectations.

81-121

Authors: Krzysztof Krajewski

In many countries of Western Europe, and of Northern America in particular, drug crime is a most serious problem both in the quantitative and the qualitative terms. This means that oflences of this type engage a considerable portion of the forces and means put at the disposal of law enforcement and criminal justice in those countries. Against this background, the question arises about the recent situation in this respect in Poland. The problem is that for many years after World War II, drug addiction was a problem of minor importance, also from the viewpoint of the police and courts. It was only in the latter half of the seventies, that a considerable drug subculture emerged in Poland, which resulted from propagation of homemade Polish heroin. And yet there was in Poland no "real'' black drug market or the division into dealers and consumers, as the addicts usually manufactured Polish heroin for themselves. Bigger changes only took place in the nineties, when Poland became a significant manufacturer of amphetamine for Western markets and an important transit country, especially for heroin smugglers from the so-called Balkan route. What remains unclear, instead, is the impact of those phenomena on the internal drug market. The extent of opiates subculture does not seem to have grown considerably, and Polish heroin still plevails, the "real" one being too expensive. What did go up, and significantly at that, is consumption of other drugs, especially amphetamine and marihuana. Yet against the general "moral panic" related to amphetamine, few epidemiology surveys indicate the greatest popularity of marihuana and not amphetamine among the school youth. The analysis discussed in the present paper aims first and foremost at answering the question as to the extent to which the above changes in drug addiction and traffic have been reflected in the functioning of law enforcement and criminal justice in Poland. To this aim, analyzed in the first place have been data on detected drug offences from police statistics, as well as date on convictions for such offences from court statistics. Basically, the analysis concerns the years 1985-1996 when the 1985 Drug Control Act was in force. With respect to the police statistics, analyzed have also been data for 1991-1998, that is the period of operation of the new 1997 Act. The major findings of my analysis can be summarized as follows. First and foremost, it has to be stated that in quantitative terms, the role of drug crime in the daily practice of law enforcement and criminal justice agencies in Poland in 1985-1996 was in fact of minor importance. Thus both detected drug offences shown in police statistics and convictions for such offences shown in court statistics constituted less than 1% of all offences and convictions as a rule. Admittedly, at the end of the discussed period, an upward trend in drug crime could be noticed in the police statistics in particular, and thus in the overall structure of crime; yet its extent is still much smaller compared to most West-European countries. The question remains largely open to what extent the growth in detected drug crime, particularly noticeable starting from 1994, results from an actual growth in the number of offences, as it may well result also from the Polish police forces' growing efficiency in detecting offences of this type. In 1985-1996, there was in Poland a most specific structure of drug crime. Thus two offences prevailed in the structure of both detected offences shown in police statistics and convictions contained in court statistics: illegal cultivation of poppy and illegal manufacture or processing of narcotic drugs. In some years, the two offences together accounted for over 80% of the bulk of drug crime registered by the police, and for even a greater proportion - up to 90% - of all convictions for such offences. Instead, the share in the overall structure of drug crime in Poland of such "classical'' offences as smuggling, trafficking and dealing in drugs was at the minimum level until 1994. It was only after that year that the proportion started to grow: by 1998, the structure was reversed with 65% of all offences detected that year being cases of dealing in drugs. So far, however, this shift is hardly reflected in the structure of convictions for such offences, which remains largely unchanged compared to previous years. This may demonstrate the Polish police forces' much greater efficiency in detecting drug dealers combined with persisting faults in the area of gathering evidence that would make it possible to indict specific persons in such cases. Another problem that can still be hardly called serious in Poland is punitive policy of courts with respect to drug offenders. Quite the contrary: there was a lot to indicate even in the eighties that the policy towards such offenders was even more liberal compared to the treatment received by other offenders. This was demonstrated by the role of fine as a selfstanding penalty, imposed much more often on drug offenders, and also by the more frequent staying of sentences. Of course, this situation resulted chiefly fiom the above-mentioned specific structure of the Polish drug crime. Traditionally prevailing among those guilty of the offence of illegal poppy cultivation were farmers, who whether intentionally ignored or were not aware of the limitations imposed on poppy cultivation by the 1985 Act. Among the illegal manufacturers of drugs, in turn, a considerable proportion were addicts who manufactured the Polish home-made heroin for themselves. Again, one can hardly speak of drug business in such cases. Most of the offenders were not profit-seekers. This means that under the 1985 Drug Control Act, Polish courts most seldom had to do with the "real" and "serious" drug crime - the long-established everyday routine of courts in most of the developed West-European and North-American countries where that crime absorbs a considerable portion of forces, means and energy of the local law enforcement. What is more, transformations of the Polish drug scene - reported by the police and the media - have so far been but slightly reflected in the work of Polish courts and in their penal policy. Again, the question remains open to what extent this situation might change over the next few years.

141-177

Authors: Andrzej R. Światłowski

Over the recent dozen years, there have been attempts in the criminal procedure doctrine at considerably re-formulating the airns of proceedings. It has been noticed, among other things, that the criminal process should not only tulfil substantive law. It has other aims as well that are just as important, including first and foremost liquidation of the specific “conflict” resulting from perpetration of an offence. This led to formulation of “post-classical” theories of the criminal process, stressing the consensual forms of conflict resolution that have been known since the birth of societies. Criticized was the assumption that the process seen as an instrument for fulfilling substantive law is in all cases the best form of conflict resolution and the best manner of legitimizing decisions of the agencies that apply the law (N. Luhmann, L. Morawski, T. Weigend, S. Waltoś). Consensual phenomena naturally arouse interest; they have become the topic of discussions. The real reason of such discussions is, among other things, a growing awareness of the poor efficiency of criminal justice: the disproportion of the means that can be used to fight crime to the actual needs in this respect. Already early in the nineties, the findings of a survey carried out within the Adam Mickiewicz University (A.J. Szwarc, J. Sobczak) demonstrated that agreements are alien to the Polish practice. The practice's opinion on that phenomenon varied in the survey: parallel to criticism, serious arguments were voiced for a broader use of agreements. This demonstrated the need for continued scientific discussion of the issue. The initial stage of that discussion was recapitulated at a conference held in June 1992 in Poznań. The conference provided the opportunity for the first direct confrontation of doctrine’s views. Several years later, a survey into formal and informal agreements was carried out within the Criminal Procedure Department of Jagellonian University (A. Światłowski). That survey also confirmed the existence in ptactice of a great variety of agreements, and the practice’s views proved just as diversified. The survey inquired about: 1) the actual extent of agreements, or at least that declared by the circles involved; 2) the appraisal of agreements by some of the legal professions; 3) the possible postulates de lege ferenda voiced on the eve of introduction of new codification, especially with respect to the future formalization of some forms of adjustments made in the criminal process, and to suggested new regulations. The survey was divided into three parts: a pilot survey, interviews, and a mail questionnaire. Upon completion of the pilot survey, the stage of interviews started. Interviewed were judges of common courts and prosecutors public prosecutor’s offices, three from each unit selected for the sample. To secure a possibly even distribution of units, the country was conventionally divided into four areas. Within each area, one court of appeal, one provincial court, and two district courts were selected: one of them operating in a big city in an urbanized area, and the other one – in a smaller locality in a rural neighborhood. A similar procedure was applied to select l2 prosecutor’s offices (one provincial and two district ones in each area). Thus the planned sample to be included in the interview survey was to include 28 units, that is up to 84 persons. Foreseeable difficulties considered, such as refusals to be interviewed or a probable situation where as many as three judges deciding in criminal cases would not be present at the same time in one court, it was assumed that about 50 persons would be interviewed (the actual number was to prove bigger: 62). Besides, selected for the mail questionnaire were 4 courts of appeal as well as 48 each of provincial and district courts and prosecutor’s offices, that is the total of 100 units. Of the 300 mailed questionnaires, 141 (47%) were sent back. The questionnaire was anonymous. The findings have been discussed in the present paper. It has to be stressed that about a half of respondents considered informal and para-formal agreements possible. As regards the incidents of such phenomena, 63 respondents of the mail questionnaire never encountered the informal and para-formal agreements; instead, 75 (53.2%) had to do with them at least once. Characteristically, none of them chose the answer, “very often”. Among the interviewed persons, 29 (46.8%) had to do with agreements, while 33 (53.2%) never encountered that phenomenon. A great variety of answers were given to the question about the stage of proceedings at which agreements are made. Mentioned here were agreemets in preparatory proceedings (and even before the institution or that proceedings), in proceedings before the 1st instance cort, and also in the appellate proceedings. Almost all respondents who declared knowledge of the practice of agreements mentioned the sentence as the basic and standard subject of agreement. Of course, also adjustments in purely technical matters were mentioned here. What seems to have been the most typical phenomenon under the former code of criminal procedure was an agreement under which, most generally speaking, the defendant admitted his guilt and did not “obstruct” his conviction in return for a more lenient treatment. Mentioned most often (by 34, that is 44.7% of respondents) as the typical initiator of criminal procedure agreement was the counsel for the defense. As regards the categories of cases in which agreements were made, mentioned were socalled “family cases”, that is abuse and failure to pay maintenance, as well as petty thefts, sometimes combined with compelling a specific conduct or with destruction of property. The fact considered that the number of respondents declaring frequent contacts with agreements was not big, more attention has been devoted in the paper to the statements of those persons, and an attempt has been made at formulating conclusions as to the features of agreements made at the time of the survey. To end with, respondents were offered the opportunity to make suggestions as to formalization of agreements in the new codification that was about to be introduced at the time of the survey. The most frequent postulates no doubt concurred with the subsequently introduced new institutions, especially with the new institution provided for in Article 387 of the code of criminal procedure.

193-223

Authors: Beata Gruszczyńska, Roman Kulma, Marek Marczewski, Andrzej Siemaszko

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