Home Law International Handbook of Juvenile Justice
ALTERNATIVE SANCTIONS FOR JUVENILES
In a broad sense the whole juvenile justice system shaped in the 1980s is meant as a way to divert juvenile offenders from the criminal justice system. It is based on the dominant role of family court judges who at their judgments in juvenile cases are guided by the interest of juveniles and their needs. ‘Diversion’ in the narrower sense can be understood as efforts aiming at the avoidance of formal court proceedings and/or formal court dispositions. In Poland, the possibility to divert juveniles from formal court proceedings and formal dispositions is limited. First, the JA empowers family courts to diversion with nonintervention. Unlike criminal processes in adult cases which are based on the principles of legality the family court may at any time drop unconditionally the juvenile case on the principle of expediency if it is in the opinion of the court that the imposition of educational or correctional measures serve no purpose, in particular when such measures have been imposed on the juvenile in a previous case. Thus, the family court has been equipped by the legislator with discretionary power to discontinue the proceedings.
Second, the family court may at any time refer the case to a mediation program or to the school attended by the juvenile or a social organization to which he belongs, if the court is of the opinion that the educational measures available to the school or organization are sufficient. The transfer of a juvenile case to a school or a social organization is possible only if the juvenile agrees (Article 32j § 1 of the JA). In practice, such a way of diverting juveniles from formal court dispositions does not play a significant role; in 2012-2013, respectively, 27 and 25 juvenile suspects were transferred to schools or social organizations (Glowny Urz^d Statystyczny 2014).
The legal basis for mediation in juvenile cases is included in Article 3a § 1 of the JA. Pursuant to its provisions the family court may at any time refer the case to mediation by an institution or a trustworthy person. Mediation is voluntary and requires consent of the juvenile suspect and victim. The results of the mediation reported to the family court by the mediator are taken into consideration when deciding the case. The family court may drop the proceedings unconditionally at an early stage as a result of successful mediation. The positive results of mediation, and particularly the performance by the juvenile obligations arising from an agreement reached in mediation, may also be taken into account by the family court while deciding on the measures (educational or correctional) applied to the perpetrator.
Despite long-term efforts made by the Ministry of Justice and nongovernmental organizations in order to promote victim-offender mediation (Stando- Kawecka and Deszynska 2013) the results are less than expected. In the last decade, family courts adjudicated yearly from 28 thousands (in 2004) to 16 thousands (in 2014) of juveniles due to punishable acts. The number of mediations in juvenile cases in the years 2004-2014 oscillated between 198 and 366 (Fig. 17.4). Thus, the ratio of juvenile offenders participating in mediation in comparison to the number of juvenile perpetrators of ‘punishable acts’ adjudicated by family courts amounted to 1-1.5 %.
It seems that the limited use of mediation in juvenile cases to some extent is connected with the paternalistic welfare approach to juvenile offenders included in the JA. This approach is focused on the needs of juvenile offenders who are considered as victims of negative personal, family, and school circumstances and not as moral agents responsible for their behavior. The needs of victims of juvenile crimes are considered less important than the social and educational needs of juvenile offenders. Educational value of victim-offender mediation is appreciated by a few family judges who are personally interested in restorative practices.
Figure 17.4. Number of mediations in juvenile cases according to results of mediation proceedings in the years 2004-2014. Source: Ministerstwo Sprawiedliwosci (Ministry of Justice 2015c). Mediacje w sprawach nieletnich w latach 2004-Ip. 2015 r. Retrieved from http://isws.ms.gov.pl/pl/baza-statystyczna/opracowania-wieloletnie/.
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